Law Times

Law Times • June 22, 2015 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Charter of Rights CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT Minimum sentence legislation did not minimally impair rights Accused convicted of carry- ing loaded prohibited fire- arms. Crown proceeded by indictment. Accused N subject to three-year minimum sen- tence. Accused C subject to five-year minimum sentence as repeat offender. N and C chal- lenged constitutionality of the minimum sentences. Court of Appeal held that minimum sentences under s. 95(2) of Criminal Code violated s. 12 of Charter. Crown appeals dis- missed. Section 95 covers wide spectrum of conduct including minor violations of gun licenc- es. Minimum sentences will impose grossly disproportion- ate punishment in reasonably imaginable situations. Legisla- tion does not minimally impair rights. Parliament could have drafted minimum sentence capturing only offences with significant moral blameworthi- ness. R. v. Nur (Apr. 14, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35678, 35684) Decisions at 110 W.C.B. (2d) 264 and 110 W.C.B. (2d) 479 were affirmed. 121 W.C.B. (2d) 117. FUNDAMENTAL JUSTICE Search powers were of no force and effect as applied to lawyers and law offices Federation of Law Societies challenged record-keeping re- quirements in money launder- ing and terrorism legislation. Chambers judge and Court of Appeal found impugned pro- visions violated s. 7 of Char- ter. Appeal allowed in part. Impugned provisions violate principal of fundamental jus- tice of lawyer's commitment to client's cause. Legislation requires lawyers to create and preserve records not required for competent and ethical rep- resentation of clients. Records are not adequately protected from searches and may be con- trary to client's interests. Search powers of law offices require high degree of protection for privileged materials. Impugned legislation inadequately safe- guarded privilege. Legislation lacks notice to affected clients or prior judicial authorization. Search powers were of no force and effect as applied to lawyers and law offices. Federation of Law Societies of Canada v. Canada (Attorney General) (Feb. 13, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35399) Decision at 108 W.C.B. (2d) 22 was reversed in part. 121 W.C.B. (2d) 125. Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORIT Y Federal government retains juris- diction to destroy data collected Federal government repealed its long-gun registry. Act re- pealing registry provided for destruction of all data collect- ed. Quebec applied for order that destruction of data was unconstitutional and requir- ing federal government to turn over data. Application judge granted requested order. Court of Appeal allowed federal gov- ernment's appeal. Quebec's ap- peal dismissed. Repeal of valid criminal legislation falls under federal government's criminal law power. Federal government retains jurisdiction to destroy data collected under criminal law power. Principle of coop- erative federalism cannot serve to limit valid exercise of federal legislative authority. Quebec (Attorney General) v. Canada (Attorney Gen- eral) (Mar. 27, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35448) Decision at 108 W.C.B. (2d) 714 was affirmed. 121 W.C.B. (2d) 130. Trial CHARGE TO JURY Little risk existed that jury would misuse photographs as "backwards identification" Jury convicted accused of man- slaughter in shooting death. Deceased was shot by one of group of young black men who had robbed him in park. Wit- nesses provided only generic descriptions of young black men in group of robbers. No witness identified accused and Crown's case rested largely on post-offence admissions made by accused. Trial judge permit- ed Crown to introduce photo- graphs of accused contempora- neous with offence. Accused's appearance had changed con- siderably by trial. Defence ob- jected to admissibility on basis that use of photographs would result in "backwards identi- fication" by jury. Trial judge instructed jurors photographs could be used as one piece of circumstantial evidence on identity. Court of Appeal or- dered new trial on basis that limiting instruction was in- adequate. Appeal allowed and conviction restored. Little risk existed that jury would misuse photographs. R. v. Araya (Mar. 13, 2015, S.C.C., McLachlin C.J.C., Rothstein J., Cromwell J., Mol- daver J., and Karakatsanis J., File No. 35669) Decision at 110 W.C.B. (2d) 606 was reversed. 121 W.C.B. (2d) 207. FEDERAL COURT Administrative Law JUDICIAL REVIEW Press release was not deci- sion and had no legal effect So-called "decision" was made public in press release by Ca- nadian Judicial Council. Press release announced members of inquiry committee established to review conduct of justice. Independent counsel was ap- pointed. Mandate of inquiry committee was to review all issues and submit report to Ca- nadian Judicial Council. Ap- plicant sought judicial review. Respondent sought to strike out notice of application for judicial review asserting press release was not reviewable decision. Motion granted. Application for judicial review disclosed no reasonable cause of action, be- cause it concerned press release, which was not decision and had no legal effect. No decision was made by inquiry committee. Girouard c. Conseil Canadien de la Magistrature (Dec. 5, 2014, F.C., Luc Martineau J., File No. T-1557-14) 252 A.C.W.S. (3d) 384. Privacy Legislation ACCESS TO INFORMATION Preparation fees respecting elec- tronic records were authorized Canadian citizen made request for three sets of records. Re- cords existed in electronic form and did not have to be created from other records by comput- er. Human Resources and Skills Development Canada provided first set, but calculated fees of $4,180 for other two and re- quired prepayment. Requestor complained to Officer of Infor- mation Commissioner. Parties brought reference. Current in- formation officer asserted that fees to search for and prepare disclosure information found in governmental electronic re- cords could be levied only with respect to electronic records that could be created with aid of computers. Attorney General asserted that fee could be levied irrespective of whether or not record currently existed. Elec- tronic records were not non- computerized records for pur- pose of search and preparation fees authorized by s. 11(2) of Ac- cess to Information Act (Can.) and Access to Information Regulations (Can.). Regulations were amended in past and there was nothing to prevent further amendment now. Canada (Information Com- missioner) v. Canada (Attorney General) (Mar. 31, 2015, F.C., Sean Harrington J., File No. T-367-13) 252 A.C.W.S. (3d) 598. ONTARIO CIVIL CASES Bankruptcy and Insolvency Bankrupt's transfers of prop- erty to children were void On April 6, 2010, bankrupt purchased property. On August 23, 2010, bankrupt transferred 99 per cent of his interest in property to two of his children. On April 2, 2012, in further transfer, bankrupt ceased to own any interest in property and title was in name of three of his children. On July 4, 2013, bank obtained judgment against bankrupt for amount of $981,301.52. Bankrupt made assignment in bankruptcy on cASELAW 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. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. 2015 ONTARIO LAWYER'S PHONE BOOK THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Perfectbound Published December each year On subscription $77 One time purchase $80 L88804-677 Multiple copy discounts available. Plus applicable taxes and shipping & handling. (prices subject to change without notice) Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: ȕ Over 27,000 lawyers listed ȕ Over 9,000 law firms and corporate offices listed ȕ Fax and telephone numbers, e-mail addresses, office locations and postal codes Includes lists of: ȕ Federal and provincial judges ȕ Federal courts, including a section for federal government departments, boards and commissions ȕ Ontario courts and services, including a section for provincial government ministries, boards and commissions ȕ Small claims courts ȕ The Institute of Law Clerks of Ontario ȕ Miscellaneous services for lawyers Untitled-2 1 2015-05-06 9:00 AM

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