Law Times

PAGE 20 CaseLawLaw FEDERAL COURT OF APPEAL Aboriginal Peoples SELF-GOVERNMENT Judge erred in declaring Election Code invalid Application judge erred in de- claring invalid Fort McKay First Nation Election Code dated De- cember 22, 2004 and in declar- ing invalid Returning Officer's decision rejecting nomination of respondent for election held February 25, 2008 and her dec- laration that B. was acclaimed as Chief. Application judge's order was based on palpable and over- riding factual error, namely that there was community consulta- tion in drafting of proposed new election code and that there had been community consensus that approval of proposed new elec- tion code would require double majority. It was not reasonable to infer from record that incor- rect statement quoting double majority rule in referendum no- tice misled enough electors to affect outcome of referendum. Respondent's application for declaration that Election Code was invalid could not succeed. In any event, there was sufficient evidence of acquiescence given time elapsed between February 8, 2005 referendum and re- spondent's challenges in Alberta Court of Queen's Bench and Federal Court, fact that Election Code had been basis of one elec- tion and numerous decisions of Chief and Councillors in con- duct of affairs of Fort McKay First Nation, lack of any other challenges to Election Code and result of March 13, 2009 refer- endum. As election appeal pro- cedure in Election Code provid- ed adequate alternative remedy for respondent's constitutional challenges, court declined to en- tertain constitutional challenges in this application for judicial review. Respondent's application for judicial review dismissed. Laurent v. Gauthier (July 23, 2009, F.C.A., Sharlow, Ryer and Trudel JJ.A., File No. A-102- 09) Appeal from 176 A.C.W.S. (3d) 305 allowed. Order No. 009/230/010 (27 pp.). Charter of Rights FUNDAMENTAL JUSTICE Crown's refusal to request respondent's repatriation violated his s. 7 rights and breach not justified by s. 1 Appeal by the Crown from an order regarding the respondent. Respondent was a Canadian citizen who was born in 1986. He was taken into custody by the United States in 2002 after he was alleged to have been in combat with American soldiers in Afghanistan. He had been in an American prison since that time. Lower court found that Canadian officials breached the respondent's rights under s. 7 of the Canadian Charter of Rights and Freedoms when they inter- viewed him in prison and shared the resulting information with the United States. Crown was ordered to request the United States to return the respondent to Canada as soon as practica- ble. It submitted that it should have unfettered jurisdiction to decide whether and when to re- quest the return of a Canadian citizen detained in a foreign country, which was a matter within its exclusive authority to conduct foreign affairs. Appeal dismissed. Court agreed that the respondent's rights under s. 7 were breached when he was in- terviewed and the information was shared. Crown prerogative in the conduct of foreign affairs was subject to the Charter. Or- der requiring the Government to request the respondent's return was not a serious intrusion into the Crown's responsibility for the conduct of Canada's foreign affairs. Such would not dam- age Canada's relations with the United States. Lower court did not err when it concluded that the Crown's refusal to request the respondent's repatriation violated his s. 7 rights. Breach was not justified by s. 1 of the Charter. Remedy imposed by the lower court was appropriate and was based on consideration of the applicable factors. Khadr v. Canada (Prime Minis- ter) (Aug. 14, 2009, F.C.A., Na- don, Evans and Sharlow JJ.A., File No. A-208-09) Order No. 009/232/070 (54 pp.). Civil Procedure PLEADINGS Motions judge did not err in setting aside prothonotary's decision striking portions of pleading Respondent fishermen and residents of Prince Edward Is- land claimed for compensation from Federal Minister in ac- cordance with contractual un- dertaking to compensate them for loss of their share of Total Allowable Catch of snow crab. Crown brought motion seek- ing to have respondents' claim struck, or, in alternative, for or- OctOber 5/12, 2009 • Law times COURT DECISIONS ainmaker_LT_June2_08.indd 1 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. 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: 5/28/08 10:43:29 AM Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 841-6472, or 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. der staying respondents' claim until such time as validity of Ministerial orders had been determined in application for judicial review. Prothonotary struck portions of pleadings asserting claim in contract and ordered balance of claims stayed and gave respondents time to file motion seeking ex- tension of time to commence application for judicial review. On appeal, motions judge did not err in setting aside pro- thonotary's decision striking portions of pleading asserting claim in contract on basis that this was complex issue of fact and law which should not be resolved on motion to strike. Also, motions judge was not prepared to find that it was plain and obvious that other claims would fail. Arsenault v. Canada (Aug. 11, 2009, F.C.A., Nadon, Blais and Pelletier JJ.A., File No. A-124- 08) Appeal from 165 A.C.W.S. (3d) 818 dismissed. Order No. 009/232/072 (8 pp.). SUPREME COURT OF CANADA Charter Of Rights ENFORCEMENT OF RIGHTS Trial judge erred by failing to consider whether adjournment and disclosure order would be appropriate remedy for late disclosure Accused charged with drug of- fences. After preliminary hear- ing, Crown disclosed evidence relating to two witnesses it sought to call at trial. Trial judge concluded that Crown's late dis- closure breached accused's right to make full answer and defence under s. 7 of Charter. Exclusion of witnesses' evidence ordered pursuant to s. 24(1) of Char- ter. Accused acquitted. Crown's appeal allowed and new trial ordered. Accused appealed. Appeal dismissed. Trial judge should only exclude evidence under s. 24(1) for late disclo- sure where: (a) late disclosure renders trial process unfair and unfairness cannot be remedied through adjournment and dis- closure order; or (b) exclusion necessary to maintain integrity of justice system. Trial judge committed reviewable error by failing to consider whether ad- journment and disclosure order would be appropriate remedy. Adjournment and disclosure www.lawtimesnews.com order would have sufficiently addressed prejudice to accused while preserving society's inter- est in fair trial. There was no finding of deliberate Crown misconduct, nor other reason to believe that integrity of justice system compromised. Accused's right to full answer and defence not infringed by inability to cross-examine witnesses at pre- liminary hearing. Fish, Binnie and Abella JJ. dissenting. R. v. Bjelland (July 30, 2009, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella and Rothstein JJ., File No. 32446) Appeal from 77 W.C.B. (2d) 509 dismissed. Order No. 009/211/061 (31 pp.). FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Elders Investigation Committee proceedings did not qualify as legal proceeding for purpose of effecting impeachment under s. 34 of Band's Custom Election Rules Application by three aboriginal band councillors for judicial review of decision of Elders Investigation Committee and council resolutions relating to enforcement of decision. Audi- tor discovered councillors had received money from band in excess of their honoraria. Coun- cillors were only allowed to be paid amounts in excess of their honoraria in limited circum- stances. Band chief formed Elders Investigation Commit- tee to investigate propriety of amounts paid in excess of hono- raria. Chief approved funding for committee himself on basis that council could not deal with issue due to conflict of interest. Committee found councillors had breached their fiduciary du- ties. Committee purported to impeach councillors. Chief and another councillor passed reso- lutions relating to enforcement of committee's decision and holding of by-election. Applica- tion granted. Resolutions passed by chief enforcing commit- tee's decision were set aside but findings of committee were left intact. Councillors were time- barred from disputing com- mittee's funding. Committee had jurisdiction to investigate and to make findings and rec- ommendations but not to im- peach councillors. Proceedings of committee did not qualify as legal proceeding for purpose of effecting impeachment under s. 34 of Band's Custom Election Rules. Provisions relating to impeachment based on corrupt election practices did not ap- ply in this case. Argument that ability of committee to impeach arose from traditional author- ity was rejected. Impeachment provisions in Custom Election Rules were comprehensive and served to exclude any alterna- tive process based on traditional authority. No evidence was provided of broad community consensus supporting com- mittee's impeachment powers. Committee had carried out its investigative function adequate- ly. Councillors were provided with appropriate procedural fairness and could only blame themselves for choosing not to make submissions. Committee was free of conflicts. Commit- tee's findings that councillors breached their fiduciary duties were reasonable. Evidence filed by councillors merely provided context for their impugned conduct and did not establish committee's findings were un- reasonable. Resolutions that were passed to enforce com- mittee's decision were not valid. Since committee's purported impeachment of councillors was invalid, chief had no basis for using his authority to pass resolutions on behalf of council. Chief was nonetheless able to give effect to provision in coun- cillors' oath of office acknowl- edging they would resign if they contravened council policies. Unresolved issues in resolutions were to be determined by way of referendum. Basil v. Lower Nicola Indian Band (July 22, 2009, F.C., Tremblay- Lamer J., File No. T-394-09) Or- der No. 009/232/082 (50 pp.). TAX COURT OF CANADA Taxation CORPORATE CAPITAL TAX Taxpayer did not demonstrate that he realized loss properly characterized as non-capital loss or business loss on income account Taxpayer M.V. appealed Canada Revenue Agency ("CRA") reas- sessment. At issue was whether certain losses arose on capital ac- count, as determined by CRA, or on income account. Real estate developer M.V. was the principal of corporation which had regularly participated in construction and development

• Cover
• New Mentoring Program
• Withdrawal
• Focus On Litigation