Law Times

Law Times • June 29, 2015 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Evidence ADMISSIBILITY Evidence of strikingly similar offence committed while accused in custody was admissible Accused charged with second degree murder. Accused alleged to have abducted and killed school girl. Accused applied to introduce evidence of strikingly similar abduction of school girl that took place nine months later while he was in custody. Trial judge rejected proposed evidence on basis that he was not satis- fied on balance of probabilities other abduction even took place. Court of Appeal allowed appeal from acquittal and ordered new trial. Appeal dismissed. Trial judge erred in putting burden on accused to show that simi- lar offence took place. Proposed evidence raised air of reality to possibility that subsequent crime occurred and was committed by same perpetrator as murder for which accused was charged. R. v. Grant (Mar. 5, 2015, S.C.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35664) Decision at 110 W.C.B. (2d) 133 was affirmed. 121 W.C.B. (2d) 139. Charter of Rights CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT Minimum sentence legislation did not minimally impair rights Accused convicted of carry- ing loaded prohibited firearms. Crown proceeded by indictment. Accused N subject to three-year minimum sentence. Accused C subject to five-year minimum sentence as repeat offender. N and C challenged constitution- ality of the minimum sentences. Court of Appeal held that mini- mum 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 licences. Minimum sentences will impose grossly disproportionate punish- ment in reasonably imaginable situations. Legislation does not minimally impair rights. Parlia- ment could have drafted mini- mum sentence capturing only offences with significant moral blameworthiness. R. v. Nur (Apr. 14, 2015, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Mol- daver 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 chal- lenged record-keeping require- ments in money laundering and terrorism legislation. Chambers judge and Court of Appeal found impugned provisions violated s. 7 of Charter. Appeal allowed in part. Impugned provisions violate principal of fundamen- tal justice of lawyer's commit- ment to client's cause. Legislation requires lawyers to create and preserve records not required for competent and ethical repre- sentation of clients. Records are not adequately protected from searches and may be contrary to client's interests. Search powers of law offices require high de- gree of protection for privileged materials. Impugned legislation inadequately safeguarded privi- lege. Legislation lacks notice to affected clients or prior judicial authorization. Search powers were of no force and effect as ap- plied 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., Abel- la 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. FEDERAL COURT OF APPEAL Murder SECOND DEGREE MURDER Denial of ministerial review of conviction for second degree murder upheld on judicial review and further appeal Accused appealed judgment dismissing his application for judicial review of denial of min- isterial review of conviction for second degree murder of his es- tranged wife. Accused and his wife had been engaged in bitter divorce proceedings. Accused arrived at house on family farm to pick up their children. Chil- dren were not there and fight be- tween parties ensued. Wife's car was crashed into front porch of house, house caught on fire, and wife was found dead at bottom of basement stairs. Wife had died in fire from carbon monoxide poi- soning but she had been beaten severely beforehand. Accused admitted to beating wife with hockey stick. Accused claimed he became aware that porch had caught on fire, perhaps as result of car crashing into it and went upstairs and tried to smother f lames with his jacket, but could not smother fire and left. Trial judge found accused severely beat his wife, then left her inca- pacitated in burning farmhouse, and accused then intentionally set fire. Accused's application was based upon three new arson experts' opinions that challenge trial judge's conclusion that fire was intentionally set with ac- celerant. All three experts were of view that, contrary to Crown expert's opinion at trial on which trial judge relied, acceler- ant was not used to start fire and disagreed with Crown expert's opinion that cause of fire was not electrical in nature. Crimi- nal Conviction Review Group of Department of Justice retained independent arson expert. That expert agreed with new experts that no accelerant was present. Minister concluded that while new expert reports cast doubt on whether accelerant was used to start fire, there was sufficient remaining evidence that pointed to accused intentionally killing victim. Appeal dismissed. Min- ister's decision was reasonable. Decision noted that accused failed to immediately notify anyone of victim's presence in home while firefighters were at- tempting to extinguish fire, had lamented fact whole house did not go up and destroy evidence to cell plant, and had made seri- ous threats toward victim. Court made its decision, giving all ben- efit to accused, and assumed for moment that new expert evi- dence conclusively proved that accused did not set fire in any way. Evidence, much of it ad- mitted by accused, showed that he factually and legally caused wife's death. Accused beat wife with hockey stick so forcefully that shaft of stick broke, leaving her incapacitated or unconscious in basement of burning house. Wife's injuries were severe to such degree she may have died from them without fire interven- ing. Walchuk v. Canada (Minister of Justice) (Apr. 7, 2015, F.C.A., Eleanor R. Dawson J.A., Da- vid Stratas J.A., and D.G. Near J.A., File No. A-351-13) Decision at 109 W.C.B. (2d) 525 was af- firmed. 121 W.C.B. (2d) 56. 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 Canadi- an Judicial Council. Press release announced members of inquiry committee established to review conduct of justice. Independent counsel was appointed. Mandate of inquiry committee was to re- view all issues and submit report to Canadian Judicial Council. Applicant 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 rea- sonable cause of action, because 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. Civil Procedure COSTS Delay in provision of redacted documents to citizenship applicant did not justify solicitor-client costs Citizenship judge rejected ap- plication as permanent resident did not meet residency test. Per- manent resident applied for judi- cial review which was dismissed. Permanent resident's File Prepa- ration and Analysis Template (FPAT), document was origi- nally redacted from Certified Tribunal Record and then con- fidentially disclosed to perma- 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. 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