Law Times

Law timeS • September 28, 2009 CaseLawLaw SUPREME COURT OF CANADA Constitutional Law CHARTER OF RIGHTS Policies permitting commercial but not political advertising on public transit vehicles violated freedom of expression and not justified under s. 1 of Charter Appellants operated public transportation systems in British Columbia. They refused to post respondents' political advertise- ments on sides of buses because their advertising policies permit- ted commercial but not politi- cal advertising on public transit vehicles. Respondents unsuc- cessfully argued that policies violated freedom of expression. Majority of Court of Appeal reversed trial judgment and de- clared policies to be of no force or effect on basis of s. 52(1) of Constitution Act, 1982 (Can.), or s. 24(1) of Canadian Charter of Rights and Freedoms. Appeal dismissed. Charter applies not only to Parliament, legislatures and government themselves, but also to all matters within author- ity of those entities. Appellants are government within mean- ing of s. 32 of Charter. British Columbia Transit is statutory body designated by legislation as agent of government. It does not operate autonomously from provincial government. Greater Vancouver Transportation Au- thority substantially controlled by local government entity and also government entity. Char- ter applies to all their activities. Application of appropriate ana- lytical framework leads to con- clusion that appellants' policies infringe respondents' freedom of expression. Expressive activ- ity neither impedes primary function of bus as vehicle for public transportation nor un- dermines values underlying freedom of expression. Side of bus is location where expressive activity protected by s. 2(b) of Charter. Policies restrict con- tent of expression in advertising space on sides of buses. Limits resulting from policies are limits prescribed by law. Policies are legislative in nature. They were adopted pursuant to statutory powers conferred on appellants. Limits resulting from policies, however, not justified under s. 1 as not rationally connected to objective and not constitut- ing minimal impairment of freedom of expression. Policies declared of no force or effect to extent of inconsistency. Canadian Federation of Students v. Greater Vancouver Transportation Authority (July 10, 2009, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 31845) Appeal from 153 A.C.W.S. (3d) 92 dismissed. Order No. (67 pp.). 275 D.L.R. (4th) 221, 009/194/212 Trial CHARGE TO JURY Trial judge failed to provide responsive answer to jury's question about standard of proof Accused charged with sexual assault. Trial judge correctly instructed jury on reason- able doubt in accordance with Lifchus and provided them with written copy of charge. Jury asked judge for "clarification on reasonable doubt section of charge…Particularly difference between absolute certainty and balance of probabilities". Trial judge responded by repeating original instructions. Judge also told jury that attempts to ex- plain words "reasonable doubt" led to more confusion and that there was very little that she could add to clarify definition already given. Accused convict- ed. Appeal was allowed on basis that trial judge failed to provide responsive answer to jury's ques- tion. Crown's appeal dismissed. If, after being properly charged, jury remained in doubt and asked question about standard of proof, trial judge had to at- tempt to answer question in ef- fort to assist them. Otherwise, there would be uncertainty about integrity and reliability of jury's verdict. Here, while origi- nal charge unassailable and jury had clearly read written charge, there was still confusion about standard of proof. There were acceptable clarifications avail- able to judge. Furthermore, judge's comments implied that she could not assist jury with confusion and that there was no reason for them to return with another question or to try clari- fying confusion. Trial judge's failure to provide responsive answer and discouragement of further questions raised concern that verdict not based on proper understanding of standard of proof. R. v. Layton (July 23, 2009, S.C.C., Binnie, Deschamps, PAGE 17 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. Fish, Charron, Rothstein JJ., dissenting - McLachlin C.J.C. and Cromwell J., File No. 32883) Appeal from 79 W.C.B. (2d) 890 dismissed. Order No. 009/204/070 (32 pp.). FEDERAL COURT OF APPEAL Constitutional Law CHARTER OF RIGHTS Application judge erred in declaring that order issued by Governor in Council pursuant to s. 18(1) of Canadian Wheat Board Act was ultra vires Act Application judge erred in de- claring that order issued by Gov- ernor in Council pursuant to s. 18(1) of Canadian Wheat Board Act was ultra vires Act. Direc- tion/order was issued as result of disagreement between federal government and Wheat Board as to board's future role, specifi- cally, whether it should retain its statutory monopoly. Policy of government was to give produc- ers, who were divided on issue, choice to market grain through Wheat Board or through other means. Wheat Board, on other hand, wished to retain its mo- nopoly powers. Direction/order prohibited Wheat Board from expending funds on advocating retention of its monopoly pow- ers. To extent that application judge was of view that author- ity conferred under s. 18(1) is aimed at protecting government funds, he erred. On plain read- ing, s. 18(1) is not restricted to protection of public funds. Pur- pose of direction/order, when read together with RIAS, was to ensure that Wheat Board no lon- ger advocated mandate that was at odds with government policy using funds made available to it under Act. Nowhere was it made to appear that purpose was to protect funds. Section 18(1) is very broad: it authorizes govern- ment, through auspices of Gover- nor in Council, to direct Wheat Board with respect to full range of activity conducted by Wheat Board. After direction/order was issued, spending producer funds to advocate single desk was no longer in best interest of Wheat Board for purposes of Act. Direc- tion/order came within ambit of s. 18(1). Further, Wheat Board is creature of statute and as such, it has no powers, rights and du- ties save those bestowed on it by www.lawtimesnews.com Act. As result of direction/order, Wheat Board had no authority under Act to use producer funds to advocate against government policy. There was no right to protect pursuant to s. 2(b) of Canadian Charter of Rights and Freedoms Canada (Wheat Board) v. Can- ada (Attorney General) (June 23, 2009, F.C.A., Noel, Evans and Layden-Stevenson JJ.A., File No. A-446-08) Appeal from 177 A.C.W.S. (3d) 19 al- lowed. Order No. 009/190/020 (24 pp.). FEDERAL COURT Citizenship QUALIFICATIONS Judge erred by failing to adopt clear approach to determining residency Appeal of decision of Citizenship Judge rejecting applicant's appli- cation for Canadian citizenship based on s. 5(1)(c) of Citizenship Act (Can.). Applicant married Canadian citizen in 1998. Since his arrival in Canada in 2000, applicant had been absent from Canada for total of 330 days and admitted to being 37 days short. Judge concluded that applicant failed to demonstrate that he met residence requirements. Judge found that documents provided by applicant regarding his resi- dency between 2000 and 2009 were insufficient and incomplete. Appeal allowed. Matter was re- mitted back for redetermination. There was lack of reasons provid- ed to applicant. Trial judge erred by failing to adopt clear approach to determining residency. Chowdhury v. Canada (Minister of Citizenship and Immigration) (July 9, 2009, F.C., Teitelbaum D.J., File No. T-587-08) Order No. 009/204/019 (31 pp.). Customs And Excise SEIZURE Determination under s. 133 of Customs Act (Can.) could be only appealed by way of action Customs officer seized diamond ring because applicant did not declare it on customs forms as required. Applicant did not have receipts confirming when jewel- lery was bought. Minister found applicant failed to report alleged importation of diamond ring. Minister required payment of $30,483 and $5,681 in provin- cial sales tax before ring was re- turned. Application for judicial review was dismissed. Determi- nation made pursuant to s. 133 of Customs Act (Can.), in respect of s. 12 of Act could be only ap- pealed by way of action to court. Applicant was not able to show by way of judicial review that Minister's determination made pursuant to s. 133 of Act was un- lawful. Court could not suspend application for judicial review when no action was initiated. Nguyen v. Canada (Minister of Public Safety and Emergency Pre- paredness) (July 15, 2009, F.C., File No. T-1390-08) Order No. 009/204/028 (24 pp.). Intellectual Property Industrial And PATENTS Board acted outside jurisdiction in requiring reporting of rebates or payments made by patentees to third parties Patentees were required to report rebates, discounts, free goods, free services, gifts and other ben- efits in calculating average price of patented medicines. Appli- cants argued board's jurisdiction was limited to reviewing prices associated with sales of patented medicines made at "factory gate". Respondent argued applications were premature because board did not yet start to enforce new reporting requirements. Respon- dent conceded record was suffi- cient to allow for interpretation of Patent Act (Can.). Applica- tions for judicial review were allowed. Applications were not premature. Board acted outside its jurisdiction in requiring re- porting of rebates or payments made by patentees to third par- ties. Section 4(1)(f)(i) and (4) of Patented Medicines Regulations (Can.), did not authorize board to require reporting of rebates or payments made to third par- ties by manufacturers of patented medicines. Pfizer Canada Inc. v. Canada (At- torney General) (July 10, 2009, F.C., Mactavish J., File No. T-1442-08; T-1447-08) Order No. 009/204/026 (43 pp.). TAX COURT OF CANADA Taxation INCOME TAX There was commercial character to preparation and planning for sale of furniture Appellant purchased refurbished

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