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Law Times • February 29, 2016
Page 13
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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
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SUPREME
COURT OF
CANADA
Charter of Rights
LIMITATION OF RIGHTS
AND FREEDOMS
Automatic Roadside Prohibition
regime violates s. 8 of Charter
and not saved by s. 1
Petitioners challenged validity of
provincial legislation providing
for licence suspensions and mon-
etary penalties for drivers who
register "fail" or "warn" on road-
side approved screening device
(ASD) test. Automatic Roadside
Prohibition (ARP) regime pro-
vided for 90-day suspension for
drivers registering "fail" (over .08
blood-alcohol) and lesser penal-
ties for "warn" (.05 to .08) result.
Petitioners argued that ARP
regime resulted in detention of
drivers subject to ASD demands
without access to counsel and au-
thorized unreasonable searches.
Petitioners also argued that ARP
regime created offence while per-
mitting no procedural protec-
tions and infringing presump-
tion of innocence. Chambers
judge found that ARP regime did
not infringe s. 11(d) of Charter,
but that ARP regime infringed
s. 8 of Charter and violation
was not saved by s. 1. Chambers
judge also found that provisions
were valid provincial legislation.
Court of Appeal upheld ruling
of Chambers judge. Appeal dis-
missed. Legislation did not cre-
ate "offence" within meaning of s.
11(d). No true penal consequenc-
es can be imposed under regime.
ARP regime was by its nature
traffic safety regulation and not
criminal law. Consequences of
"fail" result to drivers were too
severe in light of legislation's lack
of any mechanism by which driv-
ers could challenge ASD results.
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 112
W.C.B. (2d) 337 was affirmed.
126 W.C.B. (2d) 540.
Motor Vehicles
PROVINCIAL REGULATION
Evidence in addition to approved
screening device result not required
to support driving prohibition
W registered "warn" result on
approved screening device. Po-
lice imposed three-day driving
prohibition under s. 215.41(3.1)
of provincial Motor Vehicles Act.
Prohibition was upheld by del-
egate of Superintendent of Mo-
tor Vehicles. On judicial review,
prohibition quashed on basis
that more evidence was needed
that W's ability to drive was af-
fected by alcohol. Court of Ap-
peal restored prohibition. Appeal
dismissed. Superintendent was
correct not to require evidence in
addition to ASD result.
Wilson v. British Columbia
(Superintendent of Motor Ve-
hicles) (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. 35959) Decision at 115
W.C.B. (2d) 57 was affirmed. 126
W.C.B. (2d) 567.
FEDERAL
COURT OF
APPEAL
Immigration
INADMISSIBLE AND
REMOVABLE CLASSES
Application to quash s. 104
notice was properly dismissed
Applicant sought refugee pro-
tection claiming fear of perse-
cution as result of his activi-
ties with Kurdish Democratic
Party of Iran. Before his refugee
claim could be heard by Refu-
gee Protection Division (RPD),
applicant's case was referred to
Immigration Division (ID) for
determination as to his admissi-
bility. ID found applicant was in-
admissible for being member of
organization that it had reason-
able grounds to believe had been
engaged in subversion by force of
Iranian government. Canadian
Border Services Agency (CBSA)
officer gave notice to applicant
and RPD under s. 104 of Immi-
gration and Refugee Protection
Act that applicant had been de-
termined to be inadmissible on
security grounds (s. 104 notice).
Implicit from wording of notice
was CBSA officer believed ap-
plicant's refugee claim was now
ineligible, and termination of his
pending RPD proceeding neces-
sarily followed. Applicant's ap-
plication to quash s. 104 notice
was dismissed. Trial judge found
officer's interpretation of IRPA
was both reasonable and correct.
Trial judge found applicant had
not demonstrated principles of
judicial comity should not apply,
or that there was basis for reach-
ing different conclusion. Trial
judge found legislative scheme,
legislative history and principles
of legislative construction all
supported conclusion reached
in earlier decision. Applicant ap-
pealed. Appeal dismissed. Nei-
ther case law nor enactment of
Protecting Canada's Immigra-
tion System Act had any impact
on s. 104 notice. Application for
ministerial relief had no bear-
ing on operation of s. 104. Fact
that officer takes notice of facts
and communicates legal conse-
quence imposed by Act did not
make officer decision-maker
with discretion.
Haqi v. Canada (Minister
of Public Safety and Emer-
gency Preparedness) (Nov. 17,
2015, F.C.A., Nadon J.A., A.F.
Scott J.A., and Rennie J.A., File
No. A-30-15) Decision at 249
A.C.W.S. (3d) 639 was affirmed.
261 A.C.W.S. (3d) 689.
FEDERAL
COURT
Injunctions
INTERLOCUTORY RELIEF
Expanding scope of injunc-
tion order would disrupt bal-
ance of convenience analysis
Action challenged constitution-
ality of Marihuana for Medical
Purposes Regulations. Plain-
tiffs were granted interlocutory
injunction that had very spe-
cific terms designed to balance
number of competing interests.
Plaintiffs wanted to change dates
set out in injunction order and
to change class of persons cov-
ered by order and extend order
to wider group of former Mari-
huana Medical Access Regula-
tions holders. Plaintiffs brought
motion to vary injunction. Mo-
tion dismissed. Matters raised
on motion were not truly new.
Motion was premature. To ac-
cept plaintiffs' characterization
of evidence, its weight and sig-
nificance would require court to
make critical determinations in
advance of decision on underly-
ing Canadian Charter of Rights
and Freedoms challenge. It was
not appropriate for court to en-
gage in piecemeal and premature
consideration of aspects of its fi-
nal judgment. Court should not
alter carefully crafted interlocu-
tory injunction order by expand-
ing its terms. Expanding scope of
injunction order would disrupt
balance of convenience analysis.
Relief sought extended past de-
cision date of Charter challenge.
Interlocutory orders were de-
signed to expire when final deci-
sion in litigation was made.
Allard v. Canada (Jul. 15,
2015, F.C., Michael L. Phelan J.,
File No. T-2030-13) 261 A.C.W.S.
(3d) 708.
ONTARIO
CIVIL CASES
Animals
GENERAL
Appellant recklessly allowed her
animals to continue in distress
Respondent removed appellant's
horses and goat. Animal Care
Review Board (ACRB) ruled that
removal of appellant's horses and
goat was in accordance with s.
14(1)(a) and (c) of Ontario Society
for the Prevention of Cruelty to
Animals Act. Identified animals
were to remain with respondent
at appellant's expense until treat-
ing veterinarian deemed them
healthy for return. Animals
deemed healthy by treating vet-
erinarian were to be returned to
appellant on conditions. Appel-
lant was to pay boarding costs
and additional expenses incurred
relating to care or treatment of
animals. Appellants appealed
seeking revocation of orders,
return of animals removed and
setting aside of order for cost of
care and treatment. Appeal dis-
missed. Ruling that animals were
removed in compliance with Act
was confirmed. Some alterations
were made to orders of ACRB.
There was nothing inappropriate
in conduct of respondent with
respect to disclosure. Animals
were properly assessed as being
in distress. Respondent's orders
were properly issued to appel-
lant with conditions designed
to relieve ongoing distress of
animals. Appellant did not take
action required by respondent's
orders to relieve distress of ani-
mals. Appellant's concerns about
respondent's refusal to provide
her with necessary disclosure fail
on uncontroverted evidence that
respondent did not have control
over material that appellant was
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