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Page 16 July 13, 2015 • Law Times www.lawtimesnews.com SUPREME COURT OF CANADA Charter of Rights RIGHT TO FAIR TRIAL State made reasonable efforts to ensure representative jury roll Accused charged with second- degree murder and convicted of manslaughter. Accused tendered fresh evidence dem- onstrating that Aboriginal people on reser ves in region where trial took place were un- derrepresented on jury rolls. Single low-level government employee was responsible for ensuring representative jury rolls. Employee made efforts to obtain accurate lists of reser ve residents but did not engage Aboriginal leaders to explore other causes of underrepre- sentation. Majority of Court of Appeal found breach of s. 11(d) and (f ) of Charter and ordered new trial. Appeal al- lowed and conviction restored. State made reasonable efforts to ensure representative jury roll. Right to jury represen- tativeness focuses on process and not ultimate composition of jury rolls. R. v. Kokopenace (May. 21, 2015, S.C.C., McLachlin C.J.C., Roth- stein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35475) Decision at 108 W.C.B. (2d) 207 was reversed. 121 W.C.B. (2d) 233. Constitutional Law CHARTER OF RIGHTS Education provisions in Kahkewistahaw Election Act do not violate s. 15 of Charter In response to Royal Com- mission Report on Aboriginal Peoples that identified educa- tion as top priority for promot- ing collective and individual well-being in Aboriginal com- munities, Kahkewistahaw First Nation spent 13 years devel- oping Election Code which included Grade 12 education requirement for Chief or Band Councillor candidates. LT, aged 76, had Grade 10 educa- tion and was chief for almost three decades, challenged constitutionality of Grade 12 requirement. He claimed edu- cational requirement violated s. 15(1) of Canadian Charter of Rights and Freedoms. LT's ap- plication for judicial review was dismissed in Federal Court, but Federal Court of Appeal allowed LT's appeal, basing its decision on age and residence on a reserve, which were not pleaded. Appeal of Kahkewist- ahaw First Nation was allowed. Section 15 Charter analysis re- quires f lexible and contextual inquiry into whether distinc- tion has effect of perpetuat- ing arbitrary disadvantage on claimant because of member- ship in enumerated or analo- gous group. Section 15 protects substantive equality; it is aimed at laws that draw discrimina- tory distinctions and have ef- fect of perpetuating arbitrary disadvantage based on individ- ual's membership in enumer- ated or analogous group. While education requirements for employment could, in certain circumstances, have discrimi- natory impact in violation of s. 15, in this case there was ab- sence of evidence linking edu- cation requirement to disparate impact on members of enumer- ated or analogous group. There was virtually no evidence about relationship between age, resi- dency on reserve and education levels in Kahkewistahaw First Nation. Nor was there any evi- dence about effect of education provision on older commu- nity members, on community members who live on reserve or on individuals who belong to both of these groups. Court of Appeal erred in concluding that education provisions in Kahkewistahaw Election Act constitute prima facie violation of s. 15 Charter rights of com- munity members who live on reserve. Evidence must amount to more than web of instinct; it must show prima facie breach. Education provisions in Kah- kewistahaw Election Act do not violate s. 15 of Charter. Kahkewistahaw First Nation v. Taypotat (May. 28, 2015, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Kara- katsanis J., Wagner J., and Gas- con J., File No. 35518) Decision at 230 A.C.W.S. (3d) 623 was re- versed. 252 A.C.W.S. (3d) 696. Release from Custody JUDICIAL INTERIM RELEASE Tertiary ground is not limited to rare or unusual circumstances Accused charged with aggra- vated assault. Accused alleged to have taken part in group attack on bus driver causing serious in- juries. Alleged offence captured on video. Accused detained at initial bail hearing on ground that detention was required to maintain public confidence in administration of justice. Ac- cused successfully applied for review of detention order. Ap- plication judge held that tertiary ground should only be relied on in rare circumstances. Crown appeal allowed and detention order restored. Tertiary ground is not limited to rare or unusual circumstances. R. v. St-Cloud (May. 15, 2015, S.C.C., McLachlin C.J.C., Abel- la J., Rothstein J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35626) Deci- sion at 111 W.C.B. (2d) 499 was reversed. 121 W.C.B. (2d) 281. FEDERAL COURT OF APPEAL Aboriginal Peoples GENERAL Trial judge did not err in con- cluding parties bound by global financing agreement Minister of Indian and North- ern Affairs financed all of de- fined benefit pension plans for employees of Huron-Wendat Nation Council between 1985- 2008. Minister capped contri- butions to defined benefit pen- sion plans as of 2008, and made changes to other retirement sav- ings plans. Council unsuccess- fully brought action in damages to recover loss of earnings be- tween 2008-2013. Council ap- pealed. Appeal dismissed. Trial judge did not err in its interpre- tation of decision of Treasury Board and band employee social benefits policy. Trial judge did not err when it concluded that parties were bound by global financing agreement and that it was not contrary to spirit of Treasury Board decision and policy. No commitment in funding actual cost of defined benefit plan emerged from de- cision of Treasury Board and policy. Terms used such as "may provide" and "may occur" dem- onstrated that policy could not be characterized as contract or unilateral contractual commit- ment. Conseil de la Nation Huronne- Wendat c. R. (Nov. 13, 2014, F.C.A., M. Nadon J.A., A.F. Scott J.A., and Richard Boivin J.A., File No. A-104-14) Deci- sion at 242 A.C.W.S. (3d) 503 was affirmed. 252 A.C.W.S. (3d) 631. Labour Relations ARBITRATION Adjudicator had no legal option but to decline jurisdiction Respondent hired applicant in 2006 under program for persons with disabilities. Applicant's employment was terminated in 2010. Applicant filed com- plaint alleging unjust dismissal under Canada Labour Code and he filed complaint alleging discrimination on basis of dis- ability under Canadian Human Rights Act. Adjudicator was appointed under Code to hear unjust dismissal complaint, but respondent challenged ad- judicator's jurisdiction. Parties reached agreement that stayed unjust dismissal complaint. Applicant agreed that adjudi- cator did not have jurisdiction to hear unjust dismissal com- plaint unless commission re- ferred complaint back to him. Commission dismissed human rights complaint. Applicant then sought to have unjust dis- missal complaint under Code determined by adjudicator. Adjudicator found he lacked jurisdiction to consider com- plaint and complaint was dis- missed. Applicant applied for judicial review. Application was dismissed. Applicant appealed. Appeal dismissed. Adjudicator did not err in applying agree- ment between parties to decline jurisdiction. Adjudicator was correct to find that question of jurisdiction under s. 242(3.1) (b) of Code prevented him from hearing case and determin- ing procedure to be followed pursuant to s. 242(2)(b). Adju- dicator had no legal option but to decline jurisdiction. Judge rendered thorough and well- reasoned decision. There were no breaches of natural justice or procedural fairness. There was no basis to justify setting aside adjudicator's decision. Joshi v. Canadian Imperial Bank of Commerce (Apr. 23, 2015, F.C.A., M. Nadon J.A., Eleanor 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. How the legal community in Ontario gets its NEWS To order your copy visit www.lawtimesnews.com or call 416.609.3800 or 1.800.387.5164 SUBSCRIBE TO LAW TIMES TODAY! Cutting-edge legal affairs, news and commentary for just 50 cents a day! Make time for Law Times and keep up with all the developments in Ontario's legal scene. 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