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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Appeal Binnie, Deschamps, Fish, Charron, Rothstein and Crom- well JJ., File No. 33782) De- cision at 90 W.C.B. (2d) 587 reversed. 94 W.C.B. (2d) 331 (37 pp.). FRESH EVIDENCE Due diligence should not trump other criteria for admitting fresh evidence Accused convicted of sexual assault on wife. Complain- ant testifying she bit accused's fi nger hard during alleged as- sault. Accused testifying sexual relations consensual. Neither defence nor Crown proff ering expert evidence on nature of mark on fi nger at trial. Trial judge convicting accused, con- sidering bite mark, post-event demeanour of complainant as corroborative of trial testimony. Accused proff ering forensic dental report opining mark on fi nger not caused by teeth on appeal. Majority of court of appeal holding accused had not met due diligence criter- ion, fresh evidence would not have aff ected result in light of other evidence relied on by trial judge in fi nding complainant's testimony proved guilt beyond reasonable doubt. Appeal to Supreme Court allowed, fresh evidence admitted, new trial ordered. Although expert den- tal evidence could have been admitted at trial, due diligence should not trump other criteria for admitting fresh evidence. Proposed evidence could rea- sonably have aff ected result as trial judge explicitly relied on it to confi rm complainant's testimony. Unsafe to uphold conviction on basis of other evidence. R. v. A. (J.) (Apr. 8, 2011, S.C.C., McLachlin C.J.C., OBSTRUCTING JUSTICE Suggestion of deceitful way of avoiding testifying was part of accused's method of dissuading witness Accused charged with ob- structing justice by dissuading witness from testifying using threats or other corrupt means. Complainant was employee of accused's business subpoenaed to accused's preliminary inquiry on theft-related charges. Com- plainant had previously taken part in warranty fraud while working for accused's business. Accused telephoned complain- ant to warn him that he would likely be cross-examined about warranty fraud if he attended court. Trial judge found that accused suggested that com- plainant obtain false doctor's note saying that he was too injured to attend court. Trial judge found that suggestion of false doctor's note constituted "corrupt means" and convicted accused. Majority of Court of Appeal set aside convictions on basis that words "corrupt means" in indictment referred to accused's method of dissuad- ing complainant from testify- ing and not method complain- ant would use to avoid testify- ing. Crown's appeal allowed and convictions restored. Sug- gestion of a deceitful way of avoiding testifying was part of accused's method of dissuading witness and amounted to cor- rupt means. R. v. Reynolds (Apr. 28, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Roth- July 25, 2011 • law Times Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 1 CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/5/10 3:55:30 PM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. stein and Cromwell JJ., File No. 33919) Decision at 90 W.C.B. (2d) 659 reversed. 94 W.C.B. (2d) 389 (4 pp.). Sentence PRINCIPLES Majority of Appeal Court erred by substituting their balancing of relevant factors for that of trial judge Accused pleaded guilty at Court Martial to possession of marijuana, threatening a su- perior and three counts of in- subordination. Trial judge im- posed custodial sentence of 30 days. Majority of Appeal Court found that trial judge had over emphasized deterrence and substituted fi ne. Dissenting judge found no error in prin- ciple and would have upheld sentence. Appeal allowed and original sentence restored. Ma- jority of Appeal Court erred by substituting their balancing of relevant factors for that of trial judge. R. v. St-Onge (Apr. 1, 2011, S.C.C., McLachlin C.J.C., Binnie, Deschamps, Fish, Charron, Rothstein and Crom- well JJ., File No. 33864) De- cision at 92 W.C.B. (2d) 147 reversed. 94 W.C.B. (2d) 336 (5 pp.). FEDERAL COURT Crown ARMED FORCES Board effectively disregarded evidence before it Applicant was member of Can- adian Armed Forces Reserves. Applicant was awarded partial pension for medical condition mechanical low back pain. Ap- plicant sought further pension i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. for conditions consequential to mechanical low back pain. Board denied applicant's re- quest for further disability pension. Board found evidence did not establish claimed con- ditions were consequential to pensioned condition of mech- anical low back pain. Appli- cation for judicial review was allowed. Board exclusively fo- cused on one doctor's report and did not refer to other med- ical reports. Board eff ectively disregarded evidence before it. Board should have discussed reports and given reasons for rejecting them. McLean v. Canada (Attorney General) (Apr. 13, 2011, F.C., Heneghan J., File No. T-235- 09) 201 A.C.W.S. (3d) 118 (19 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION No opportunity for applicant to provide input on significant issue as part of investigation Respondent was not off ered position. Respondent did not have qualifi cations to operate or supervise operation of gangway. Respondent fi led complaint al- leging applicant discriminated against respondent on basis of sex. Investigator recommended Chairperson of Tribunal insti- tute inquiry into complaint of respondent against applicant. Applicant sought judicial re- view. Respondent lacked quali- fi cation for foreperson's job in that respondent did not have gangway experience or quali- fi cation. Application for judi- cial review was allowed in part. Decision was set aside except issue of thwarted eff orts to get fl oater experience and issue of singled out for scrutiny more CANADIAN LAW LIST 2011 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: an up-to-date alphabetical listing • • • and judges in Canada; contact information boards, commissions and Crown corporations; legal and government contact information of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year • On subscription $146 • L0084-8573-26084 • One-time purchase $162 • L0084-8573 • ISSN 0084-8573 Visit canadalawbook.ca or call 1.800.387.5164 for a 30-day no-risk evaluation Prices subject to change without notice,to applicable taxes and shipping & handling. CANADA LAW BOOK® www.lawtimesnews.com CLL - 1-4 page - 5X.indd 1 5/25/11 9:38:07 AM than male employees were to proceed to chairperson to insti- tute inquiry. Investigator made fundamental mistake in over- looking lack of qualifi cation. Decision to refer complaint to tribunal on basis of denial of promotion was unreasonable. If investigator found evidence of systemic discrimination not encompassed by complaint it was investigator's duty to examine evidence, to alert par- ties of impact of evidence on case and to suggest complaint be amended, which did not occur in case. Th ere was no op- portunity for applicant to pro- vide input on signifi cant issue as part of investigation. Aspect of decision that dealt with pos- sible systemic discrimination was remitted to commission for investigation by diff erent investigator. Cerescorp Co. v. Marshall (Apr. 15, 2011, F.C., Russell J., File No. T-1388-10) 201 A.C.W.S. (3d) 226 (36 pp.). ONTARIO CIVIL CASES Administrative Law JUDICIAL REVIEW Applicant would not be denied any remedy if application for judicial review was quashed College referred allegation of misconduct against applicant to committee. Applicant sought judicial review. College brought motion to stay application be- cause it was premature and con- stituted collateral attack on pri- or decisions. Applicant brought motion to amend judicial review application to add additional grounds and subsequently dis- covered facts. College brought motion to strike out paragraphs

• Cover
• Estates Ruling
• Maverick Retires
• Focus On Forensics/Private Investigators