Law Times

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 Sentence SUPREME Sentencing for breach of long- term supervision orders. Two accused, L. and I., sentenced to three year sentences respec- tively for breaching long-term supervision orders ("LTSO") by consuming intoxicants. Each accused Aboriginal offender, having significant personal histories of community alien- ation, family dysfunction and substance abuse. Accused des- ignated long-term offenders due to histories of committing violent offences while intoxicat- ed. Second accused breaching LTSO by consuming alcohol. Sentencing judge considering protection of public paramount concern in second accused' Courts are to take judicial notice of factors impacting aboriginal offenders in arriving at fit sentence PRINCIPLES case, holding breach was seri- ous, separation of offender para- mount objective in arriving at three year sentence for second accused. Court of appeal dis- missing second accused' s from sentence. Court of appeal holding sentencing judge erred by giving insufficient weight to second accused' s appeal background, but sentence still fit due to gravity of breach, need to protect public. First accused breaching LTSO by consuming opiates. Sentencing judge find- ing separation of first accused paramount concern. Court of appeal varying first accused' s Aboriginal sentence to one year, finding sen- tencing judge failed to recognize failure to provide culturally rel- evant treatment for first accused undermined rehabilitation, resulting in first accused' of LTSO. Further appeal by sec- ond accused allowed, sentence s breach s varied to one year. Crown appeal from court of appeal decision varying first accused' dismissed. Principles embodied by s. 718.2(e) of Criminal Code apply to sentencing Aboriginal offenders for breaches of LTSOs. It is incumbent on judges sen- tencing Aboriginal offenders to consider systemic, background factors which may have played role in bringing offender before courts. Sentencing courts are also to consider types of sen- tencing procedures, sanc- tions that may be appropriate because of offender' s sentence heritage. Section 718.2(e) of Criminal Code signaled inten- tion of Parliament that judges pay particular circumstances of Aboriginal offenders during sentencing process. Courts are to take judicial notice of particu- lar background factors impact- ing Aboriginal offenders in arriving at fit sentence. Because purpose of LTSO is both protec- tion of public and rehabilitation of offender, necessary to con- sider particular factors that may have caused Aboriginal offend- ers to breach LTSO in arriving at s Aboriginal ing approach is consistent with fundamental principle of parity, as difference in sentences may reflect lower moral blamewor- thiness of Aboriginal offenders due to link between background, systemic factors and culpabil- ity. Sentencing judge, court of appeal erred in principle by giv- ing attenuated consideration to second accused' These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. R. v. Ipeelee; R. v. Ladue (Mar. 23, 2012, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ., File No. 33650; 34245) Decision at 85 W.C.B. (2d) 953 reversed and 97 W.C.B. (2d) 56 affirmed. Consolidated from two lower courts. 99 W.C.B (2d) 642 (103 pp.). FEDERAL COURT OF APPEAL Civil Procedure fit sentence. Such sentenc- Prothonotary granted leave to respondents to amend their pleading by adding five para- graphs. Broadly speaking, five paragraphs alleged that appel- lant was estopped from litigating certain findings of fact made in decision of United States District Court, Southern District of New York. Federal Court Judge dis- missed appeal from that order. Federal Court Judge found that prothonotary' Decision to grant amendments not vital to final outcome of case COMMENCEMENT OF PROCEEDINGS stance as Aboriginal offender, after finding public protection paramount objective. Sentence of one year properly reflected impact of second accused' circumstances offender on gravity of second accused' as Aboriginal s of appeal's decision to vary first accused's sentence to one year s breach of LTSO. Court adequately reflected principles, and objectives of sentencing. s circum- amendments was not vital to final outcome of case. Federal Court Judge found that appel- lant failed to demonstrate that prothonotary based his decision on wrong principle or upon mis- apprehension of facts. Further, Federal Court Judge observed that even if he exercised his dis- cretion de novo, he would have allowed amendments. Appeal dismissed. Substantially for rea- sons offered by Federal Court, appellant had not demonstrated that, in granting amendments, prothonotary based his decision on wrong principle or upon mis- apprehension of facts. On their face, paragraphs alleged facts, not foreign court' s decision to grant of claims in patent, and alleged legal s construction pel arose from them. It was not result, that issue estop- plain and obvious at this time that facts alleged were inextrica- bly bound or related to foreign court' and that these paragraphs could not succeed in law. It would be for trial judge to determine on evidence whether facts alleged in these paragraphs were proven and whether, in law, they gave rise to issue estoppel. Astrazeneca Canada Inc. v. Apotex Inc. (Feb. 29, 2012, F.C.A., Dawson, Trudel and Stratas JJ.A., File No. A-211-11) Decision at 205 A.C.W.S. (3d) 907 was affirmed. 212 A.C.W.S. (3d) 24 (8 pp.). s construction of claims FEDERAL COURT Admiralty Application for judicial review challenging Gateway Infrastructure Fee imposed by Vancouver Fraser Port Authority on vessel owners in respect of containerized cargo. Application dismissed. Applicants had not established that Gateway Infrastructure Fee was not fair and reasonable. Fee sustainable under s. 49(1)(a) or (b) of Canada Marine Act. Respondent need not link fee to a service or benefit in order to justify requiring appli- cants to pay fee. Decision to levy fee against ship owner reasonable as ship is primary contact with port. Shipping Federation of Canada v. Vancouver Fraser Port Authority (Mar. 12, 2012, F.C., Phelan J., File No. T-953-11) 212 A.C.W.S. (3d) 3 (19 pp.). Respondent need not link fee to service in order to justify requiring applicants to pay fee GENERAL Prisons Impossible to tell from reasons if decision made in conformity with statutory obligations INMATES' RIGHTS Inmate, Canadian citizen serv- ing seven year sentence in United States for conspiracies to distribute and to import marijuana into United States, applied for judicial review of Minister's decision to refuse his application for transfer to Canadian correctional facil- ity. Inmate was bipolar and his family maintained that he was not receiving adequate care in U.S. facility. Correctional Services public safety risk assessment of inmate indicat- ed that he had no criminal record in Canada, no identi- fied ties to organized crime group and no history of sexual crimes. Inmate was also found to be unlikely Application for judicial review allowed, Minister ordered to reassess inmate's applica- tion within 45 days, inmate awarded costs. Minister's deci- sion was unreasonable and his application had to be redeter- mined on merits and in con- formity to reoffend. Transfer of Offenders Act (Can.). Decision that contains nothing more than recitation of few relevant facts and bare conclusion is not one that is legally defensible under Act. It was impossible to tell from reasons what factors caused Minister to deny inmate's application or for court to determine if decision was made in reasonable conformity with Minister's with International tions. Information provided to Minister by his advisors con- tradicted Minister' statutory obliga- Acceptance as sufficient of bare conclusion would immunize every decision from effective judicial review and permit administrative decisions that are arbitrary or capricious. Goulet v. Canada (Minister of Public Safety and Emergency Preparedness) (Jan. 19, 2012, F.C., Barnes J., File No. T-5-11) 99 W.C.B. (2d) 613 (13 pp.). s conclusion. May 28, 2012 • Law TiMes Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

• Cover