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PAGE 22 CaseLawLaw SUPREME COURT OF CANADA Charter of Rights EQUALITY RIGHTS Appellants' equality rights under s. 15 of Charter not violated by communal fishing licence Communal fishing licence is- sued to three aboriginal bands that permitted fishers designat- ed by bands to fish for salmon in mouth of Fraser River for pe- riod of 24 hours and to sell their catch. Appellants excluded from fishery during 24-hour period participating in protest fishery. Appellants asserting that equal- ity rights under s. 15 of Char- ter were violated by communal fishing licence. Appellants es- tablished that they were treated differently based on enumerated ground, race. Government pro- gram at issue was protected by s. 15(2) as program that had as its object amelioration of condi- tions of disadvantaged individu- als or groups. Where program made distinction on one of grounds enumerated under s. 15 or analogous ground but had as its object amelioration of condi- tions of disadvantaged group, s. 15's guarantee of substantive equality was furthered and claim of discrimination must fail. R. v. Kapp (June 27, 2008, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, De- schamps, Fish, Abella, Char- ron and Rothstein JJ., File No. 31603) Appeal from 271 D.L.R. (4th) 70, 69 W.C.B. (2d) 667 dismissed. Order No. 008/184/005 (89 pp.). Constitutional Law REMEDIES Accused R.C.M.P. officer shot and killed detainee. Accused charged with second degree murder but convicted by jury of manslaughter. Trial judge granted constitutional exemp- tion from mandatory minimum sentence of four years' imprison- ment and imposed conditional sentence of two years less one day. Court of Appeal overturned sentence and held that mini- mum sentence must be imposed. Accused appealed. Appeal dis- missed. Constitutional exemp- tion not appropriate remedy for cruel and unusual punishment imposed by law prescribing minimum sentence. Parliament's intention in passing mandatory appropriate remedy for cruel and unusual punishment imposed by law prescribing minimum sentence Constitutional exemption not minimum sentence laws was to remove judicial discretion to im- pose sentence below stipulated minimum. In granting constitu- tional exemption, judge would be undermining Parliament's purpose and would represent inappropriate intrusion into legislative sphere. Appropriate remedy found under s. 52(1) of Constitution Act, 1982, not s. 24(1) of Charter. Mandatory language of s. 52(1) suggests intention that unconstitutional laws be deprived of effect to ex- tent of inconsistency, not left on books subject to discretionary case-by-case remedies. Granting individual constitutional exemp- tions would deprive Parliament of clear guidance as to what is constitutionally required. No basis remained for concluding that four-year mandatory mini- mum sentence constituted cruel and unusual punishment in this case and reasonable hypotheti- cals analysis not satisfied, so s. 52(1) not engaged. R. v. Ferguson (Feb. 29, 2008, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, De- schamps, Fish, Abella, Char- ron and Rothstein JJ., File No. 31692) Order No. 008/063/001 (42 pp.). FEDERAL COURT OF APPEAL Parole ELIGIBILITY FOR REVIEW No credit given towards unexpired sentence in Canada for time served abroad Accused appealed dismissal of application for judicial review of decision denying third level grievance challenging calcula- tion of parole eligibility date. Accused escaped from Canadian prison while serving sentence for murder. Accused arrested for armed robbery in United States and sentenced to 168 months' imprisonment. Accused trans- ferred to Canada under Transfer of Offenders Act (Can.). Cor- rectional Services re-calculated parole eligibility. Commissioner dismissed grievance on basis that accused "unlawfully at large" within meaning of s. 719(2) of Criminal Code when serving sentence in United States. Ap- plication judge concluded that Commissioner did not err in refusing to give applicant credit toward period of parole ineligi- bility for 57 days spent in cus- tody in United States awaiting transfer. No credit given towards unexpired sentence in Canada for time served abroad. Credit in September 29, 2008 • Law timeS COURT DECISIONS 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: ainmaker_LT_June2_08.indd 1 5/28/08 10:43:29 AM 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. s. 11 of Act goes toward comple- tion of United States sentence at date of transfer. Act had no effect on computation of unex- pired Canadian sentence. Appeal dismissed. Accused's argument that he lacked mens rea for be- ing unlawfully at large because he had manifested intention to return to Canada and return ap- proved was rejected. No basis for assumption that desire to serve foreign sentence in Canada was equivalent to intention to return to Canada to serve balance of Canadian sentence. Chaif v. Canada (Attorney Gen- eral) (June 17, 2008, F.C.A., Nadon, Pelletier and Ryer JJ.A., File No. A-348-07) Appeal from 74 W.C.B. (2d) 261 dis- missed. Facts taken from lower court summary. Order No. 008/198/082 (4 pp.). FEDERAL COURT Immigration Application for stay of execution of removal order pending hear- ing of application for judicial re- view. Applicant was citizen of El Salvador who had been involved in criminal gang. Applicant came to Canada and claimed refugee status. Applicant admit- ted having committed various acts of violence including kill- ing and injuring people with grenades and shooting rival gang member in chest. Applicant was found to be inadmissible on ba- sis of organized criminality. Ap- plicant unsuccessfully applied for pre-removal risk assessment ("PRRA"). Application dis- missed. Applicant failed to es- tablish serious issue to be tried. Mere fact that arguable ground was advanced did not necessar- ily mean serious issue had been established. Consideration had to be given to level of defer- ence that decision under review would attract. PRRA officer's conclusions with respect to risk to applicant and availability of state protection were within range of possible acceptable out- comes. Officer's conclusion that state protection was available to applicant was complete answer to argument that officer failed to consider absence of diplo- matic assurances with respect to applicant's safety. Quinteros v. Canada (Minister of Citizenship and Immigration) (May 21, 2008, F.C., Zinn J., File No. IMM-2291-08) Order No. 008/154/097 (17 pp.). www.lawtimesnews.com EXCLUSION AND EXPULSION Stay of removal refused where no serious issue to be tried CIVIL CASES Civil Procedure ONTARIO CLASS ACTIONS Strong argument that s. 5(4) of Class Proceedings Act, 1992 (Ont.) not intended to apply to circumstances Application for leave to appeal order which reopened dismissed motion to certify action as class proceeding and allowed respon- dents to deliver fresh evidence. Applicants commenced action for damages alleging that insurer breached insurance contracts by not restoring vehicles to their pre-loss condition. Applicants sought to certify action as class proceeding. Motion's judge dis- missed certification motion, and then granted leave to applicants to reopen certification motion to file fresh evidence. Application granted. There was good reason to conclude that motion's judge erred in determining criteria for exercise of discretion in issue. Importance of class proceedings and significance of certification motions meant that Divisional Court should determine wheth- er criteria for reopening dis- missed certification motion were appropriate. There was strong argument that s. 5(4) of Class Proceedings Act, 1992 (Ont.), was not intended to apply to cir- cumstances of case because there was strong argument that case was not one of adjournment but determination of merits of certi- fication motion. Risorto v. State Farm Mutual Au- tomobile Insurance Co. (May 7, 2008, Ont. Div. Ct., Macdon- ald J., File No. 100/8) Order No. 008/133/009 (15 pp.). Courts STAY OF PROCEEDINGS It was not plain and obvious that application could not succeed Motion to strike or stay applica- tions for declaration that s. 76(1) of Health Professions Procedural Code was unconstitutional and that s. 76(1) violated their ss. 7 and 8 rights under Canadian Charter of Rights and Freedoms. Plaintiffs were four physicians being investigated for profes- sional misconduct. Investigator issued summonses for produc- tion of materials under s. 76(1). Motion dismissed. Defendant College and Attorney General failed to demonstrate that it was plain and obvious that appli- cants could not succeed. There was no evidence that allowing applications to proceed would have caused injustice to defen- dants. Stay would have caused injustice to applicants. Applica- tions were not premature. Kelly v. Ontario (May 6, 2008, Ont.S.C.J., Himel J., File No. 07-CV-3360612 PDI; 07-CV-335648 PDI; 07-CV- 339246 PDI; 07-CV-343010 PDI) Order No. 008/141/014 (21 pp.). Damages PERSONAL INJURIES Assessment of general damages was inordinately low Appellant elderly woman tripped and fell on cement ramp leading to main entrance to respondent's store. Ramp had become some- what higher than walkway re- sulting in lip. Appellant tripped and fell at this lip and seriously injured her head, face, ribs and shoulder. Trial judge's assessment of general damages at $15,000 was inordinately low. Trial judge failed to accept rational and credible evidence presented by appellant about her injuries and on-going nature of them eight years post-trip and fall. Trial judge's damage award set aside and damages of $45,000 substi- tuted, plus special damages for loss of housekeeping services of $71,958. Litwinenko v. Beaver Lumber Co. (May 8, 2008, Ont. Div. Ct., Greer, Gans JJ. and dissent- ing - Crane J., File No. DC-06- 20) Decision at 150 A.C.W.S. (3d) 506 was varied. Order No. 008/155/037 (28 pp.). Family Law DOMESTIC CONTRACTS Separation agreement did not preclude application of Guidelines Application by mother for vari- ation of child support. Mother and father had two children who lived with mother follow- ing separation. Mother and father dealt with child support in separation agreement that predated introduction of Child Support Guidelines (Ont.). Mother wanted child support to be paid in accordance with Guidelines while father wanted to pay child support in accor- dance with separation agree- ment. Mother commenced ap- plication for variation in May 2002. Application granted. Father was required to pay $3,373.52 for missed payments under separation agreement, $8,076 for retroactive increase in child support from May 2002, and ongoing Guideline amount of $750 per month for both children based on annual income of $48,000. Separation agreement did not preclude application of Guidelines. Separation agreement actu- ally anticipated introduction of

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