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PAGE 14 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. COURT OF CANADA SUPREME Constitutional Law CHARTER OF RIGHTS Applicant's letter outside public's Applicant sanctioned by pro- fessional order for having writ- ten letter to judge criticizing judge' reasonable expectations of lawyer' s professionalism Disciplinary council of Barreau du Quebec found that Code of ethics of advocates (Que.), may constitute infringement of fun- damental right of freedom of expression but limitation pre- venting advocate from calling judge "loathsome person, arro- gant, fundamentally unjust" or from describing his behaviour as "pedantic, aggressive, and petty" entirely reasonable and necessary in Canadian legal system. Superior Court found that Professions Tribunal' s conduct and personality. clusion reasonable and correct. Applicant served suspension but obtained leave to appeal on whether Superior Court Judge correct in deciding that free- dom of expression did not pro- tect applicant. Quebec Court of Appeal dismissed appli- cant' s con- to Supreme Court of Canada dismissed. Administrative decision-makers must act con- sistently with values underlying grant of discretion, including values from Canadian Charter of Rights and Freedoms. When assessing compliance of admin- istrative decision with Charter values, appropriate framework is to apply administrative law/ judicial review analysis, rath- er than strict s. 1 approach as set in R. v. Oakes (1986), 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200 (S.C.C.). Reasonableness remains applicable review stan- dard for s appeal. Further appeal disciplinary panels. Administrative decision-maker applies Charter values in exer- cise of statutory discretion by balancing Charter values with statutory objectives. On judicial review, decision reasonable if reflects proportionate balancing of Charter protections at play. In this case, Charter value is expression and, specifically, how it should be applied in context of Code of ethics stated "the con- duct of an advocate must bear the stamp of objectivity, mod- eration and dignity". In dealing with appropriate boundaries of civility, severity of conduct must be interpreted in light of expressive rights guaranteed by Charter and, in particular, pub- lic benefit in ensuring right of lawyers to express themselves about justice system and judges. Council found applicant' lawyer's professional duties. ter outside public's reasonable expectations of lawyer's profes- s let- sionalism. Council recognized lawyer has right to respond to criticism or remarks by judge but personal attacks overstepped norms of moderation and dig- nity. Conclusion reasonable balance of applicant' rights with statutory objectives. Dore v. Barreau du Quebec (Mar. 22, 2012, S.C.C., McLachlin C.J.C., Binnie, LeBel, Fish, Abella, Rothstein and Cromwell JJ., File No. 33594) Decision at 326 D.L.R. (4th) 749, 196 A.C.W.S. (3d) 75 was affirmed. 211 A.C.W.S. (3d) 852 (47 pp.). s expressive ONTARIO CRIMINAL CASES Appeal from conviction. Accused represented herself Hindsight does not form basis for appeal Appeal GENERAL These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. on charge of rolling right turn on red light. Accused claimed that Justice of the Peace ("JP") should have recognized that she was overwhelmed and stepped in to offer her assistance or afford her adjournment for pur- poses of obtaining assistance perhaps by paralegal or some other type of legal representa- tive. Appeal dismissed. Nothing in transcript would have indi- cated to JP that accused was confused or had problem that required special attention. Provincial Offences Court very few people are in fact repre- sented by paralegals or lawyers. Accused had indicated she was ready for trial. This was simple highway traffic offence. What JP did was adequate and there were no questions. Officer gave evidence that was quite detailed and he testified using notes. Only issue for JP was to weigh contradictory evidence. He found accused' In ble but he believed police officer that accused had not stopped. Accused' s evidence credi- better served if she had hired paralegal or agent to assist her at trial, but hindsight does not form basis for appeal. R. v. Caffrey (Dec. 15, 2011, Ont. C.J., Pockele J., File No. 00-4235385A) 99 W.C.B. (2d) 408 (10 pp.). s interests would have Evidence Officer's comments regarding ADMISSIBILITY Voir dire on admissibility of statement. Two accused and two complainants were gay men who had engaged in consen- sual sexual acts. Accused were HIV positive. Both accused were charged with two counts of aggravated sexual assault. At issue at trial would be whether accused' exercising right to silence was improper s disclosed their HIV positive status to complain- ants in advance; and whether complainants would have par- ticipated in unprotected sexual acts had they been aware of accused' received complaint regard- ing one accused and deci- sion was made to arrest him. Investigating sergeant was also aware of warrant for arrest of accused in Waterloo regarding three counts of aggravated sex- ual assault. Feeney warrant was obtained and officers attended accused' s' status. Ottawa police not at home. Sergeant called accused on his cellphone and she requested meeting. Accused asked if he was going to be arrested. Officer said no fear- ing accused would not show up if he knew truth. Meeting was arranged at doughnut shop. Accused arrived in vehicle and two police vehicles immediately blocked its passage. Sergeant, along with several officers from tactical unit, conducted "high risk takedown" and accused was informed he was under arrest for one count of aggravated sexual assault and one count of breach of probation. She said accused was told of war- rant for his arrest in Waterloo for three counts of aggravated sexual assault. Sergeant s residence but he was proceeded to deliver rights to counsel and caution in usual manner. Accused was trans- ported to police station and placed in holding cell. At bail court, accused was remanded in custody. Remand warrant issued on court appearance directed police officers to deliv- er accused to regional detention centre. Instead, he was escort- ed back to police station and placed in holding cell. Accused was interviewed by police. During interview, accused declined to answer number of questions, making reference to legal advice he had received. then Sergeant continued to ask ques- tions. Statement not admissi- ble at trial. Officer' regarding exercising right to silence was improper. Officers' handling of missing minute from beginning of videotape of interview was s comments Accused was not provided with sufficient information so that he could make informed decision on waiving his rights to coun- sel. Brief factual information could easily have been provided as officer had warrant. Accused declined to respond to officer. Returning person in custody to police station was unacceptable. Had officers complied with remand warrant, as they were required to do, interview would not have occurred. Crown had not proven statement was vol- untary. Breach of remand war- rant alone negated voluntari- ness. R. v. Boone (Jan. 5, 2012, Ont. S.C.J., Gordon J., File No. 7191) 99 W.C.B. (2d) 458 (15 pp.). improper. Indictment and Information VALIDITY Appeal by Crown from deci- sion that quashed Information because Justice of the Peace who swore it failed to confirm either Promise to Appear or summons. Accused appeared in court on three occasions and did not raise any objec- tions to Information until trial commenced, at which time he applied to quash it. Application was allowed since there was no confirmation of process under s. 508 of Criminal Code. Appeal dismissed. Non-confirmation of process, Non-confirmation of process gave rise to jurisdictional defect to Appear, gave rise to juris- dictional defect that nullified Information. That defect could not be remedied by appearance of accused. It was proper to fol- low case law that was authority such as Promise May 14, 2012 • Law TiMes Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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