Law Times

Law Times • apriL 20, 2015 Page 19 www.lawtimesnews.com goals of ensuring respect for dif- ferent religious beliefs requires students to learn about doc- trines and ethics of other world religions in neutral and respect- ful way. Given that minister's decision as whole must ref lect proportionate balancing of pro- tections from Canadian Char- ter of Rights and Freedoms and statutory objectives, minister's decision is unreasonable. Loyola High School v. Quebec (Attorney General) (Mar. 19, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Karakatsanis J., File No. 35201) Decision at 234 A.C.W.S. (3d) 338 was reversed. 250 A.C.W.S. (3d) 248. ONTARIO CRIMINAL DECISIONS Charter of Rights FUNDAMENTAL JUSTICE Accused's statement to police was admissible Accused charged with 15 sexual offences against complainant. Defence argued that statement should be excluded because ac- cused's right to remain silent under s. 7 was infringed. At time of allegations that accused had kissed, fondled and had oral sex with complainant, she would have been 15 years old while ac- cused would have been 35. Al- legations related to five discrete encounters with one being at home of accused's romantic and business partner, where accused lived. Accused was informed he was being charged and told to turn himself in following morn- ing, and which time he would be arrested and charged with three sexual offences. Detective told accused he should contact lawyer before coming to police station, but that in any event, he would be given opportunity to contact lawyer at police sta- tion. Accused relayed that he had received half hour legal consultation as to his rights over lawyer referral service by tele- phone night before. Accused was arrested, read his rights, and processed, spoke with counsel for 20 minutes and then interviewed for approximately one hour and 20 minutes. Ac- cused's statement was mostly exculpatory but he did make incriminating admissions. Ac- cused repeatedly stated he did not wish to answer any more questions, but was convinced to do so on several occasions. Accused appeared alert and focus, with nothing impairing his faculties. Statement admis- sible. Court found there were no threats or inducements and that instance of detective explain- ing that in some circumstances where police were concerned that there may be other com- plainants who had not yet come forward, they did media release publishing name of person ac- cused of sexual offences, was not threat but real concern that accused in past may have inap- propriately committed sexual offences against other minors, in addition to complainant and accused's partner's daughter. Although interview got heated in end, accused gave as well as he got, and shut down interview. On virtually all of occasions when accused said that he was not going to answer any more questions, he continued to have conversation with detective, pushing back against her allega- tions and, at times, raising ques- tions of his own, demonstrating exercise of free will. Accused showed considerable control throughout interview and never strayed from his denial that he had not engaged in any sexual behaviour with complainant. Accused exercised his rights by agreeing to speak about some issues and refusing to answer questions about others. Detec- tive utilized number of standard police tactics none of which crossed line into area of trickery that would shock conscience of community. R. v. H. (J.J.) (Feb. 19, 2015, Ont. S.C.J., Aitken J., File No. 12- SA5106) 119 W.C.B. (2d) 375. Sexual Offences SEXUAL ASSAULT Young complainant was credible witness Trial of accused on charges of one count of sexual assault and one count of touching person under 14 years of age for sexual purpose. Offences were alleged to have occurred between No- vember of 2009 and May of 2010. Female victim, named AD, was three years old at time of incidents, as she was born in August 2006. Accused was 35 years old when he was alleged to have committed offences and he was currently 39. At time of offences accused was in domes- tic relationship with woman named KK who was best friend of victim's mother JB. Despite their common law relationship KK and accused occupied sepa- rate premises. AD and JB slept over at KK's unit on many oc- casions. In May 2010 AD made spontaneous disclosure about things that accused did to her. On August 12, without prompt- ing, AD made anatomically correct drawing of accused's penis and testicles and drawing also showed something coming out of penis. She also provided further details of accused's con- duct. AD went to police on Au- gust 14 and AD provided video statement to police on August 15, 2010. AD testified that inci- dents happened when she and her mother slept over at KK's home when everyone else was asleep. Accused convicted. De- spite her young age AD had re- markable ability to remember specific details about these in- cidents. Her version of incidents never wavered at any point in time. AD was credible witness and, having made this finding, accused's claim that he did not commit offences was rejected. R. v. Bissonnette (Jun. 10, 2014, Ont. S.C.J., D. Cornell J., File No. null) 119 W.C.B. (2d) 426. FEDERAL COURT OF APPEAL Administrative Law FREEDOM OF INFORMATION Extension of time limit to deal with request did not meet requirements of s. 9(1) of Access to Information Act (Can.) Requester requested from De- partment of National Defence (DND) access to records relat- ing to sale of certain military assets. DND notified requester that, pursuant to s. 9(1) of Ac- cess to Information Act (Can.), it was extending 30-day time- limit set out in s. 7 by 1,110 days in order to deal with request. Requester filed complaint with Information Commissioner of Canada. DND's extension was found to be invalid, as crite- ria for extension under s. 9(1) (a) of Act were not all met and time taken under s. 9(1)(b) was unreasonably long. Commis- sioner applied for judicial re- view pursuant to s. 42 of Act seeking declaration that DND was in state of deemed refusal for having failed to give ac- cess within time-limits set out in Act and for order directing DND to respond to request within 30 days. Federal Court Judge determined that she did not have jurisdiction pursuant to s. 42 of Act to issue declara- tion. Federal Court Judge con- cluded that, as long as there was compliance with time exten- sion that was taken, there could be no deemed refusal pursuant to s. 10(3), regardless of reason- ableness of extension. Com- missioner appealed. Appeal al- lowed. Reading of s. 10(3) of Act that would prevent judicial re- view of extension was not what Parliament intended. Federal Court Judge's interpretation meant that length of time-limit would lay exclusively in hands of government institution that asserted it and escape judicial review, regardless of duration. Section 7 of Act required gov- ernment institution to respond to information request within 30 days. Requirement was sub- ject to exceptions including power that might be exercised by government institution to extend time pursuant to s. 9 but period taken must be reason- able, considering circumstanc- es set out in s. 9(1)(a) and/or s. 9(1)(b). Deemed refusal arose whenever initial 30-day time- limit expired without access being given in circumstances where no legally valid exten- sion had been taken. Right to judicially review validity of extension arose pursuant to ss. 41 and 42 of Act upon expiry of 30-day time-limit and Federal Court had jurisdiction to en- tertain application for judicial review and to consider valid- ity of extension of time DND asserted. Extension did not meet requirements of s. 9(1) of Act. DND was declared to have entered into state of deemed refusal pursuant to s. 10(3) of Act upon expiration of 30-day time-limit set out in s. 7. Canada (Information Commis- sioner) v. Canada (Minister of National Defence) (Mar. 3, 2015, F.C.A., Marc Noël C.J., David Stratas J.A., and A.F. Scott J.A., File No. A-163-14) Decision at 238 A.C.W.S. (3d) 789 was re- versed. 250 A.C.W.S. (3d) 183. Employment Insurance DECISIONS OF UMPIRE Umpire did, in essence, apply standard of reasonableness to review of board's decision Applicant applied for benefits under Employment Insurance Act (Can.), on basis that he had been employed by L, but had lost employment because of shortage of work. Applicant filed record of employment (ROE) prepared by owner of L. Employment In- surance Commission granted application and applicant re- ceived 27 weeks of benefits. Commission then determined that ROE was fraudulently is- sued by owner to applicant and that he was never employed by L. Commission cancelled ap- plicant's claim for benefits and ordered him to repay $9,126 plus penalty of $3,698. Applicant ap- pealed. Board of referees upheld determinations of commission and dismissed appeal. Appli- cant appealed to umpire. Um- pire dismissed appeal. Appli- cant applied for judicial review of umpire's decision. Applica- tion dismissed. Umpire did not specifically enunciate standard upon which he reviewed board's decision that applicant worked for L, but in essence, umpire reviewed factual question on standard of reasonableness. Evi- dence before board and umpire was clearly sufficient to support factual finding that applicant was not employed by and did not work for L at times stipulated in ROE that he submitted in sup- port of claim for benefits. That critical factual finding could not be said to have been erroneous finding of fact made by board in perverse or capricious manner or without regard for material before it. Critical finding of fact was reasonable. Pathmanathan v. Office of the Umpire (Feb. 18, 2015, F.C.A., C. Michael Ryer J.A., Webb J.A., and Near J.A., File No. A-44-14) 250 A.C.W.S. (3d) 263. Industrial and Intellectual Property PATENTS Board's decision with respect to common general knowledge of skilled person was sustainable Board re-examined validity of claims of patent in light of prior art submitted to it. Board con- cluded that claims were invalid as being obvious and therefore non-compliant with s. 28.3 of Patent Act (Can.). Board issued certificate cancelling claims. Ap- pellant appealed. Federal Court upheld decision. Appellant ap- pealed. Appeal dismissed. Criti- cal finding by board was that state of common general knowl- edge of skilled person included information presented as back- ground knowledge in patent it- self. By making its finding as to what was included in common general knowledge of skilled per- son, board was not engaged in exercise of patent construction. Board was simply making fac- tual finding that was required of it. Board's decision with respect to common general knowledge of skilled person was sustain- able. Federal Court Judge cor- rectly held that factual finding was within area of expertise of board and deserved high degree deference. Federal Court Judge correctly applied reasonableness standard of review. Newco Tank Corp. v. Canada (Attorney General) (Feb. 16, 2015, F.C.A., C. Michael Ryer J.A., Webb J.A., and Near J.A., File No. A-219-14) Decision at 239 A.C.W.S. (3d) 179 was af- firmed. 250 A.C.W.S. (3d) 323. Social Welfare CANADA PENSION PLAN Tribunal's decision to deny dis- ability benefits not unreasonable Review tribunal determined that applicant did not qualify for disability benefits under s. 44(1)(b) of Canada Pension Plan. Appeal division of social security tribunal came to same conclusion. Tribunal accepted medical evidence of applicant's condition and subjective experi- ence of pain but found that ap- plicant had residual capacity to work and that she had to show that medical condition pre- vented her from obtaining and maintaining substantial gainful employment. Tribunal found that applicant failed to meet her legal obligation. Applicant ap- plied for judicial review. Appli- cation dismissed. Decisions of tribunal were to be reviewed on reasonableness standard. Tribu- nal reached conclusion on basis of evidence adduced. Case was mostly fact driven and record in- cluded significant medical doc- umentation of applicant's condi- tion. Tribunal heard, reviewed and considered evidence includ- ing applicant's testimony. Appli- cant disputed tribunal's assess- ment of evidence with respect to residual capacity to work but she was essentially attempting to convince court to re-weigh evi- dence, which was beyond role of court on judicial review. Tribu- nal's decision to deny disability benefits was not unreasonable. Tribunal examined evidence and decision fell within range of possible, acceptable outcomes defensible on facts and law. Kiraly v. Canada (Attorney Gener- al) (Mar. 11, 2015, F.C.A., J.D. De- nis Pelletier J.A., Wyman W. Webb J.A., and Richard Boivin J.A., File No. A-305-14) 250 A.C.W.S. (3d) 339. LT CASELAW

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