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PAGE 18 CaseLawLaw SUPREME COURT OF CANADA Charter of Rights SEARCH AND SEIZURE Charter breach minor and made in good faith Search incident to arrest. Ac- cused convicted of possession of cocaine for purpose of traf- ficking. Officer finding cocaine after searching vehicle incident to arrest based on reasonable grounds accused committed indictable offence of posses- sion of marijuana in excess of 30 grams. Officer basing rea- sonable grounds on smell of burnt marijuana and discov- ery of large amount of cash on accused. Evidence of smell of drugs and large amount of cash sufficient to support infer- ence that grounds for arrest for commission of indictable of- fence existed. Alternatively, ev- idence would not be excluded as Charter breach minor, made in good faith and real evidence discovered in location in which accused had reduced privacy interest. R. v. Loewen (May 5, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ., File No. 33914) Decision at 90 W.C.B. (2d) 273 affirmed. Reasons in full. 96 W.C.B. (2d) 339 (9 pp.). Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY Division of powers does not exempt clinic from application of Controlled Drugs and Substances Act In partnership with non-profit organization, health authority providing injection supervision service to chronic drug addicts at Insite. Health care workers at Insite exempted by Minis- ter of Health from prosecution for possession and trafficking offences, but Minister subse- quently revoking exemption. Division of powers does not exempt clinic, as health facility, from application of Controlled Drugs and Substances Act as exercise of federal jurisdiction over criminal law. Minister's revocation of exemption, how- ever, contravened s. 7 Charter rights of Insite staff and addicts using its services. PHS Community Services So- ciety v. Canada (Attorney Gen- eral) (Sep. 30, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abel- la, Charron, Rothstein and Cromwell JJ., File No. 33556) Decision at 87 W.C.B. (2d) 39 affirmed. 96 W.C.B. (2d) 322 (78 pp.). Trial REASONS FOR JUDGMENT Court of Appeal erred in concluding trial judge had taken "piecemeal" approach Accused charged with two counts of sexual assault. Ac- cused alleged to have had non-consensual intercourse with 17-year-old cousin on two occasions. Accused testi- fied and denied having sex with complainant. Allegations came to light after complain- ant posted poem titled "Black Dark" about alleged sexual as- saults. Trial judge rejected ac- cused's evidence but had rea- sonable doubt about whether complainant consented. Trial judge's doubt rested substan- tially on complainant's poem and her use of the words "bit- tersweet" and "regret" which he found was inconsistent with description of a rape. Court of Appeal set aside accused's ac- quittals and ordered new trial on basis that trial judge had looked at lines of poem with- out considering context of rest of poem and of complainant's evidence. Court of Appeal concluded that trial judge had thereby failed to consider all of evidence and had erred in law. Appeal allowed and acquittals restored. Trial judge gave ex- tensive reasons for his reason- able doubt on issue of consent and explicitly stated that he was taking into account all of circumstances of the case. Court of Appeal erred in con- cluding that trial judge had taken "piecemeal" approach to evidence. R. v. H. (J.M.) (Oct. 6, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Roth- stein and Cromwell JJ., File No. 33667) Decision at 86 W.C.B. (2d) 1010 reversed. 96 W.C.B. (2d) 356 (23 pp.). FEDERAL COURT Crown ARMED FORCES Applicant given instruction on how to access medical records and failed to do so Applicant began training as November 28, 2011 • Law Times Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 1 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. 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: 5/5/10 3:55:30 PM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 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. artillery officer. Applicant was accused of lying and demon- strating conduct in conflict with CF ethos. Applicant was deemed to have failed train- ing. Applicant was released after completion of obliga- tory service. Grievances were allowed. Applicant suffered depression. Doctor found ap- plicant's chronic medical con- ditions were consequence of conflicts with military over career. Medical employment limitations were imposed on applicant. Applicant was com- pulsorily released on medi- cal grounds. CDS dismissed grievances. Application for judicial review was dismissed. There was no breach of proce- dural fairness. Applicant was given specific instruction on how to access medical records and failed to do so. By time of CDS review in 2010 applicant had possession of all relevant documents. Applicant had time to consult independent physician and provide new medical evidence. There was no reason to interfere with de- cision on merits. McBride v. Canada (Minister of National Defence) (Aug. 25, 2011, F.C., Martineau J., File No. T-83-11) 206 A.C.W.S. (3d) 73 (12 pp.). Employment PUBLIC SERVICE Panels relied on outdated job descriptions to make decisions Plaintiff was employee of de- fendant governmental agency since 1996. Selection panels appointed for staffing of po- sitions rejected plaintiff's ap- plication for three different positions on basis of lack of experience. They claimed that she did not have experience in international audits of at least eighteen months in past five years. Plaintiff asked for re- consideration but panels main- tained initial decisions. Plain- tiff sought judicial review. She claimed that decisions were unreasonable and arbitrary. She claimed that panels erred in their assessment of her ex- perience. Application allowed. Determination of whether candidate had sufficient ex- perience was question of fact. Reasonableness standard ap- plied. Plaintiff had provided sufficient evidence of her rel- evant experience for positions sought. Panels had relied on outdated job descriptions to make their decisions and did not contact plaintiff's former supervisors to ascertain her experience. Panels made fun- www.lawtimesnews.com damental and dominant error which justified judicial review. Appointment of new panels required to review plaintiff's candidacy. Tran v. Agence du Revenu du Canada (Aug. 19, 2011, F.C., Lemieux J., File No. T-493-10; T-494-10; T-503-10) Reasons in French. 206 A.C.W.S. (3d) 79 (28 pp.). Pensions BENEFICIARIES Veterans deserve to receive every assistance possible Veteran who was now de- ceased and his wife applied for disability pension. While department of veterans' affairs allowed application based on other disabilities, application for duodenal ulcers as dis- ability was initially refused on grounds that it was not con- sidered service-related medical condition. Applicants argued that ulcers were result of re- pression of his war-related traumatic stress. When review panel finally allowed claim 11 years after initial application, it affirmed that there were delays beyond applicants' control and made award ret- roactive by 3 years plus an ad- ditional 24 months. It ruled that pension officers had not breached their duty to provide counseling services to appli- cants. Wife and estate of de- ceased veteran sought judicial review. Application allowed. Correctness standard applied to question of retroactivity while rest of issues were sub- ject to reasonableness stan- dard. Even though applicants had made several attempts to obtain benefits, officers from veterans' affairs failed to in- form and counsel them as they should have. Veterans deserved to receive every as- sistance possible. Panel com- mitted error in fact and in law by not recognizing that appli- cants suffered serious difficul- ties in last 11 years. Case was referred back to new panel for reconsideration. Arial v. Canada (Procurer gen- eral) (July 8, 2011, F.C., Shore J., File No. T-250-11) 206 A.C.W.S. (3d) 210 (35 pp.). Statutes INTERPRETATION Surrenders and designations special forms of transfer of reserve lands to Crown Meaning of terms "surren- ders and designations" can be gleaned by reading s. 37(1) and (2) and s. 38(1) and (2) of Indian Act (Can.), in conjunc- tion with definition of "sur- rendered lands" in s. 2(1) of Act. In short, surrenders and designations are special forms of transfer of reserve lands or interests to Crown, usually as precursor to management, sale or lease of those lands for ben- efit of those involved. Ballantyne v. Bighetty (Aug. 12, 2011, F.C., Russell J., File No. T-721-11) 206 A.C.W.S. (3d) 1 (38 pp.). ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Certification would permit court to give effect to negotiated settlement Plaintiffs in three proposed class proceedings brought mo- tion to consolidate three ac- tions and have them certified as class action. Defendants consented to motion. Certifi- cation was for purpose of im- plementing settlement. For set- tlement purposes all criterion for certification were satisfied. Certification would permit court to give effect to negoti- ated settlement and to bind all affected parties. Certification would permit court to satisfy itself as to appropriateness of and oversee implementation of settlement agreement. Motion was allowed. It was appropriate to consolidate actions. Action was certified as class proceed- ing. Waheed v. Pfizer Canada Inc. (Aug. 25, 2011, Ont. S.C.J., Perell J., File No. 04-CV- 81149CP; 05-CV-287488CP; 05-CV-82243CP) 206 A.C.W.S. (3d) 27 (6 pp.). PLEADINGS No certainty landlord could add parties without violating limitation period Motion by defendant to amend statement of defence to with- draw admission that defen- dant was tenant of commercial premises and to plead instead that tenant was a corporation on basis that admission was inadvertent and unintentional. Landlord claimed arrears of rent. Motion dismissed. Pro- posed amendment did not raise triable issue. No evidence to show that any mistake mutual. Defendant had not offered rea- sonable explanation for change of position. Highly unlikely admission inadvertent. Admis- sion consistent with defences pleaded and with lack of any pleading that corporation was tenant. Considerable amount

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