Law Times

Page 14 January 18, 2016 • Law Times www.lawtimesnews.com 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. Supreme Court of Canada Criminal Law BREATHALYZER Automatic Roadside Prohibition scheme not minimally impair- ing right of driver to be free of unreasonable search and seizure Automatic Roadside Prohibition (ARP) scheme calling for road- side analysis of drivers' breath samples using approved screen- ing device (ASD). "Fail" reading and driver's refusal to provide sample result in 90-day licence suspension. Process for review only permits Superintendent of Motor Vehicles to consider whether applicant was "driver" and whether ASD registered "fail", "warn" or driver refused to provide sample. Drivers' samples registered "fail" except G who re- fused to provide sample. Cham- bers judge found ARP scheme intra vires and that s. 11(d) of Canadian Charter of Rights and Freedoms not infringed but con- cluded ARP scheme violates s. 8 only where ASD registers "fail". Court of Appeal upheld decision. Appeals dismissed. Pith and substance of ARP scheme is li- censing of drivers, enhancement of traffic safety and deterrence of impaired driving. Provinces' role of ensuring highway safety includes regulating who is able to drive. Provincial drunk driving programs do not invade federal power over criminal law merely because they target conduct also captured by Criminal Code. ARP scheme falling within provincial power over property and civil rights in province. ARP scheme does not create "offence" within meaning of Charter s. 11(d). Scheme concerns licensing driv- ers, enhancement of traffic safety and deterrence of impaired driv- ing. Nor does scheme impose true penal consequences. While costs and penalties are signifi- cant and 90-day licence suspen- sion is meaningful, they do not engage fair-trial rights. While de- mand to provide breath sample constitutes seizure that infringes individual's reasonable expec- tation of privacy and engages s. 8, purpose and consequences of seizure are established by ARP scheme. Breath demand is critical component. While it has certain criminal-like features, consequences of "fail" reading or failure to provide sample are not criminal. Given concerns whether ASD accurately ref lects blood-alcohol readings, driver's ability to challenge accuracy of ASD result is critical to reason- ableness of ARP regime. Absence of meaningful review of accu- racy of result of seizure render ARP scheme unreasonable; ARP scheme not minimally impairing right of driver to be free of unrea- sonable search and seizure. Goodwin v. British Colum- bia (Superintendent of Motor Vehicles) (Oct. 16, 2015, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35864) Decision at 237 A.C.W.S. (3d) 511 was affirmed. 259 A.C.W.S. (3d) 683. Immigration Human smuggling Statutory interpretation favoured finding that appel- lants had not acted illegally Appellant H, native of Cuba, was deported from United States for illegally assisting Cuban refu- gees. Other four appellants were Sri Lankan migrants who paid to be transported to Canada. After crew abandoned ship, appellants performed various roles allowing ship, including other migrants, to arrive in Canada. Immigra- tion and Refugee Board found all appellants inadmissible on basis they assisted undocumented mi- grants to arrive in Canada, con- trary to s. 37(1)(b) of Immigration and Refugee Protection Act. Re- sult of being ruled inadmissible under s. 37(1)(b) is that refugee claimant peremptorily excluded from Canada without consider- ation of refugee claim on merits. Appellants claimed they were not people smuggling but rather were simply helping fellow asy- lum-seekers f lee persecution. On application for judicial review to Federal Court, all appellants ex- cept one were found admissible. On appeal, Federal Court of Ap- peal held that all appellants were inadmissible due to "organized criminality" in having assisted migrants illegally. Appellants' appeal to Supreme Court of Can- ada allowed. To find appellants inadmissible, it was necessary to show they were engaged in smug- gling or other illegal activity that constituted organized criminali- ty. Section 37(1)(b) applies only to people who act to further illegal entry of asylum-seekers in order to obtain financial or other ma- terial benefit in context of trans- national organized crime. Sri Lankan appellants did not have requisite knowledge of criminal intent of smugglers to be found involved in illegal activity. They had no intent to assist illegal mi- grants and presented themselves to Canadian authorities imme- diately upon arrival. Migrants who aid in own illegal entry or illegal entry of other refugees or asylum-seekers in collective f light to safety not inadmissible under s. 37(1)(b). Parliament did not intend to broaden definition of criminality to include those in situations similar to Sri Lankan appellants. Statutory interpreta- tion favoured finding that ap- pellants had not acted illegally. As such, proper remedy was to send matter back to Board for re- consideration. Appellant H con- ceded he played role in allowing undocumented migrants to enter and his appeal was accordingly dismissed. B010 v. Canada (Minister of Citizenship and Immigration) (Nov. 27, 2015, S.C.C., McLach- lin C.J.C., Abella J., Rothstein J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35388, 35688, 35685, 35677) De- cision at 225 A.C.W.S. (3d) 1096 and 235 A.C.W.S. (3d) 460 were reversed. 259 A.C.W.S. (3d) 729. Trial CHARGE TO JURY Trial judge erred in instruc- tions on post-offence conduct Jury convicted accused of sec- ond-degree murder. Accused testified he met deceased while intoxicated and she attacked him after having sexual relations at his home. Accused testified he inadvertently smothered de- ceased during effort to restrain her when his retreat from her at- tack failed. Pathologist being un- able to pinpoint cause of death. Accused having engaged in ex- tensive efforts to dispose of body and clean blood-spattered home claiming at trial he did so as still impaired and feared discovery of drug operation hidden in home. Police uncovered considerable forensic evidence in home not- withstanding accused's efforts to clean. Accused f leeing from and lying to police about having been responsible for death when first arrested. Accused raised self-defence. Crown arguing evi- dence suggested prolonged and brutal attack of deceased rather than self-defence consisting of brief attack. Trial judge telling jurors evidence of post-offence conduct could be used on issue of whether Crown had proved requisite intent for murder. Ma- jority of Court of Appeal allowed appeal and ordered new trial. Crown appeal to Supreme Court of Canada dismissed. Trial judge erred in instructions on post-of- fence conduct. Trial judge erred by failing to relate to jury how evidence of disposal of body and cleaning of house was probative on issue of intent. Evidence only probative of intent through rel- evance to nature and extent of deceased's injuries and force re- quired to inf lict them. R. v. Rodgerson (Jul. 17, 2015, S.C.C., Abella J., Rothstein J., Cromwell J., Moldaver J., and Karakatsanis J., File No. 35947) Decision at 113 W.C.B. (2d) 232 was affirmed. 125 W.C.B. (2d) 456. Tax Court of Canada Taxation GOODS AND SERVICES TAX Services provided by facilities were "personal services" falling within definition of "homemaker services" CH Ltd. and CT Ltd. were for- profit operators of residences for seniors (facilities). CH Ltd. and CT Ltd. entered into agreements with health authority for provi- sion of services to facility resi- dents. On assessment, claims by CH Ltd. and CT Ltd. for refunds of GST paid in error were denied. CH Ltd. and CT Ltd. claimed for refunds of GST paid in er- ror on supplies of homemaker services provided by third-party contractors in course of operat- ing facilities. Appeals allowed in part. Plain and ordinary mean- ing of "personal service" would clearly encompass services as- sistance with activities of daily living such as were provided to residents of both facilities due to their age, infirmity or disabil- ity. There was little ambiguity in words "personal service" and or- dinary meaning of those words must play dominant role in their interpretation. "Personal service" in definition of "homemaker ser- vice" was not restricted to servic- es similar in nature to examples that followed term "household or personal service" in definition provided in Excise Tax Act. Use of specific examples after gen- eral term in legislation does not restrict meaning of general term to cases similar to specific exam- ples. Presumption is that in using specific examples, Parliament in- tended extension of meaning of general term to things that would ordinarily have been seen as not falling within general term. Use of word "or" between "house- hold" and "personal" in term "household or personal service" supports view that Parliament intended to distinguish between household and personal services and intended to include services beyond those ordinarily con- sidered household services. Fact that exemption for homemaker services falls within Part II of Schedule V of Act, which deals with health care services, is fur- ther contextual support for con- clusion that assistance provided to elderly or infirm persons with activities of daily living would be included in concept of "personal service", and would support conclusion that examples used in definition of "homemaker service" were included because they might not otherwise be con- sidered as health care services. Contracts between third-party contractors and facilities clearly provided for supply of services including care services, hospi- tality services and housekeeping services. Services in issue were provided to residents in their place of residence, regardless of whether they were provided in- side their units or rooms in other areas of premises. Since services provided by facilities were "per- sonal services" falling within def- inition of "homemaker services", it would follow that program un- der which health authority paid for those personal care services would be program in respect to homemaker services. Subpara- graph 13(1)(b)(ii) of Act does not require that sole purpose of program under which funding is provided to fund homemaker services. It was only necessary to show connection between pro- vincial continuing care program and provision of homemaker services by third-party contrac- tors. Personal care services at facilities were funded as part of continuing care program partly administered by health author- ity. Health authority was admin- istering government program in respect of homemaker services. Courtyard Terrace Assisted Living Residence Ltd. v. R. (Nov. 5, 2015, T.C.C. [General Proce- dure], B. Paris J., File No. 2011- 3419(GST)G, 2011-3420(GST)G) 259 A.C.W.S. (3d) 788. Federal Court Immigration REFUGEE STATUS Minister's position would work against clearly stated policy of family unity Foreign national was citizen of Iran who became permanent resident of Canada upon her ar- rival in country on June 13, 2006. Foreign national was dependent of her husband, who was deter- mined to be Convention refugee by visa officer overseas as he had well-founded fear of persecution based on political opinion. Un- der policy of family unity, foreign national, her husband, and their son became members of Conven- tion Refugees Abroad class and were accepted without assess- ment. Foreign national returned to Iran on two occasions and minister sought cessation of her Convention refugee status on ba- sis of s. 108(1)(a) of Immigration and Refugee Protection Act for voluntarily re-availing herself of protection of Iran. Refugee Pro- tection Division panel concluded that it did not have jurisdiction to consider minister's application to cessate refugee status of respon- dent pursuant to s. 108 of protec-

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