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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Charter Of Rights INSANITY Open to jury to find that accused knew his acts were morally wrong RIGHT TO FAIR TRIAL Accused has no constitutional right to face-to-face confrontation with complainant Accused appealed from dis- missal of appeal of conviction for sexually assaulting his son and daughter. At trial, both children, aged eight and 11, testified behind screen. Ac- cused challenged constitutional validity of s. 486.2 of Criminal Code and s. 16.1 of Canada Evidence Act, which govern manner in which children tes- tified, claiming that provisions infringed his ss. 7 and 11(d) Charter rights. Appeal dis- missed. Use of testimonial aid engages accused's s. 7 liberty and security interests, but in- ability of accused to confront witness does not offend prin- ciple of fundamental justice. Accused has no constitutional right to face-to-face confronta- tion with complainant. Section 16.1 prohibits pre-testimonial questions about child's under- standing of nature of promise to tell truth but during trial, credibility and reliability of child witness's evidence may be challenged and child wit- ness cross-examined on under- standing of nature of promise to tell truth and on abstract concepts associated with that promise. Section changes fo- cus of child's evidence from one of admissibility to one of reliability. Child's presumed testimonial incompetence is not fundamental principle of justice. Presuming testimonial competence does diminish ac- cused's right to fair trial. R. v. S. (J.) (Jan. 19, 2010, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Roth- stein and Cromwell JJ., File No. 32942) Decision at 238 C.C.C. (3d) 522, 80 W.C.B. (2d) 773 affirmed. 87 W.C.B. (2d) 31 (2 pp.). FEDERAL COURT OF APPEAL Human Rights Legislation DISCRIMINATION Elements of wage discrimination not established on balance of probabilities PSAC filed complaint in 1983 against CPC alleging discrimi- nation by CPC against em- ployees in female-dominated Clerical and Regulatory Group by paying employees in male- dominated Postal Operations Group more than Clerical and Regulatory Group employees for work of equal value, contrary Accused admitted intentional- ly shooting deceased but raised defence of not criminally re- sponsible by reason of mental disorder. Defence and Crown experts at trial agreeing that at time of killing accused was suffering from mental disor- der. Experts disagreeing at trial whether accused knew shoot- ing deceased morally wrong. Court of appeal holding that jury's rejection of defence of not criminal responsible not unreasonable. Appeal from conviction dismissed on fur- ther appeal to Supreme Court. Jury here was faced with con- flicting expert evidence as well as accused's statements suggest- ing he understood actions were morally wrong. Jury's finding that accused knew his acts were morally wrong open to jury on evidence and verdict not un- reasonable. R. v. Baker (Mar. 19, 2010, S.C.C., LeBel, Deschamps, Fish, Abella, Charron, Roth- stein and Cromwell JJ., File No. 33323) Decision at 246 C.C.C. (3d) 520, 84 W.C.B. (2d) 693 affirmed. 87 W.C.B. (2d) 46 (2 pp.). May 3, 2010 • Law TiMes COURT DECISIONS ainmaker_LT_June2_08.indd 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: Defences 5/28/08 10:43:29 AM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. 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. to s. 11 of Canadian Human Rights Act. In 2005, Cana- dian Human Rights Tribunal upheld complaint. In 2008, Federal Court correctly allowed application for judicial review brought by CPC and directed that complaint be dismissed. Tribunal had made two errors, each of which was sufficient to vitiate decision of tribunal. In order for complaint to be up- held, tribunal itself determined that among other things, it was required to make findings that all four elements of case of wage discrimination had been es- tablished. Four elements were: comparator group; employment in same establishment; work of equal value; and wage gap. With respect to first issue, which was not directly considered by ap- plications judge, tribunal could not reasonably be considered to have made finding that third element of prima facie case of discrimination, namely find- ing that comparison of work of two groups revealed that they were performing work of equal value, had been established. Tri- bunal erred in this case by fail- ing to determine if admissible evidence, taking into account its reliability, established third element on balance of prob- abilities. Tribunal prematurely concluded its analysis of third element at second step after considering admissibility and weight. As result, absence of this essential finding made it impossible for complaint to be upheld. With respect to second issue, applications judge was correct in holding that findings made by tribunal in relation to third element of prima facie case of wage discrimination fell short of proof of level required by balance of probabilities stan- dard. As such, it was unrea- sonable for tribunal to uphold complaint when requisite level of proof of this essential ele- ment was not present. Level of proof with respect to at least one of four elements failed to exceed 50% and therefore failed to attain required level of proof of greater than 50%. Applica- tions judge was correct when he determined that matter should be remitted to tribunal with direction that complaint should be dismissed as not having been substantiated. Further, it would be of no use to remit matter to tribunal for reconsideration, given conclusion that tribunal's findings with respect to each of four elements failed to meet necessary level of proof on bal- ance of probabilities. Canada Post Corp. v. P.S.A.C. (Feb. 22, 2010, F.C.A., Sexton, Evans and Ryer JJ.A., File No. A-129-08; A-130-08; A-139- 08) Decision at 165 A.C.W.S. (3d) 503 was affirmed. 186 A.C.W.S. (3d) 201 (120 pp.). FEDERAL COURT Immigration PERSON IN NEED OF PROTECTION Officer had no obligation to gather or seek additional evidence or to make further inquiries Applicant was denied refugee status. Refugee Division ruled applicant was not credible and there was insufficient evidence to make finding of well-founded fear of persecution. Applicant received negative pre-removal risk assessment ("PRRA"). Ap- plication for judicial review was dismissed. Argument applicant was entitled to oral hearing had no merit because PRRA officer based decision on insufficien- cy of evidence rather than on lack of credibility. Applicant advanced no cogent evidence applicant was prejudiced by delay. Applicant had no vested rights in PDRCC applica- tion. Under Immigration and Refugee Protection Act (Can.), outstanding PDRCC became PRRA application. Officer's assessment of evidence fell within ambit of officer's fact- finding functions. Officer had no obligation to gather or seek additional evidence or to make further inquiries. Zhou v. Canada (Minister of Citizenship and Immigration) (Feb. 19, 2010, F.C., Lemieux J., File No. IMM-3975-09) 186 A.C.W.S. (3d) 204 (13 pp.). Parole DAY PAROLE Board did not ignore various positive factors in accused's file Accused applied for judicial re- view of appeal decision which upheld decision of National Parole Board to revoke his day parole. Accused was sen- tenced to two consecutive life sentences for violent rape and attempted murder of woman. Information was received from unnamed sources who reported that accused threatened to rape and kill female staff members at community correction centre. Accused denied making state- ments. Accused argued that decision to revoke day parole was unreasonable, that board failed to consider all relevant information, that board failed to disclose information to him prior to hearing and that ap- peal decision was unreasonable for affirming board's decision. Application dismissed. Board did not ignore various positive factors in accused's file. Board confronted accused with alle- gations and gave him oppor- tunity to comment on them and to rebut them. Board was under no obligation to go fur- ther and actively seek to ob- tain accused's casework record. Board did not contravene s. 7 of Canadian Charter of Rights and Freedoms or principles of natural justice by failing to seek accused's casework record. Information provided to ac- cused was sufficient summary of report to meet requirements that board provide to offender information that was to be considered in review of case. Undisclosed information in report did not include any information that was relied upon by board. Given that board's decision was not un- reasonable, it followed that appeal decision was not un- reasonable. Appeal decision was appropriately justified, transparent and intelligible. Miller v. Canada (Attorney General) (Mar. 18, 2010, F.C., Crampton J., File No. T-964- 09) 87 W.C.B. (2d) 68 (29 pp.). Your best legal move may be the one you haven't considered. SMSS.COM CHARLOTTETOWN Untitled-3 1 FREDERICTON www.lawtimesnews.com HALIFAX MONCTON SAINT JOHN ST. JOHN'S 4/27/10 11:54:36 AM

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