Law Times

Law Times • JuLy 25, 2016 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Sexual Offences BESTIALITY Bestiality has well- established legal meaning Accused put peanut butter on minor complainant's genitals and took photos while dog licked it off. Accused was convicted of bestial- ity. Court of Appeal concluded penetration is essential element of bestiality and overturned con- viction. Crown appealed to Su- preme Court of Canada. Appeal dismissed. Bestiality has well- established legal meaning and re- fers to sexual intercourse between human and animal. Penetration has always been understood to be essential element of bestiality. Parliament adopted term without adding definition of it. Legislative history and evolution of relevant provisions showed no intent to depart from well-understood legal meaning of term. Courts should not, by development of common law, broaden scope of liability for offence as trial judge did. Any expansion of criminal liability for bestiality was within Parliament's domain. R. v. W. (D.L.) (Jun. 9, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Kara- katsanis J., Côté J., and Brown J., 36450) Decision at 122 W.C.B. (2d) 508 was affirmed. 129 W.C.B. (2d) 514. Federal Court of Appeal Aboriginal Peoples CROWN RELATIONSHIP There was no basis for federal court jurisdiction over duty to consult claim against province Treaty Number 4 ("treaty") of 1874 required Crown to pro- vide First Nation with specified amount of land. There was short- fall in amount of reserve land provided to First Nation. In 1993 Crown and First Nation conclud- ed Saskatchewan Treaty Land En- titlement Framework Agreement, which created framework for ful- fillment of Crown's outstanding obligation under treaty. First Na- tion concluded settlement agree- ment with Canada and province ("PFN settlement agreement"). First Nation brought action as- serting respondents violated PFN settlement agreement. Province's motion to strike action as against it was dismissed. Province ap- pealed. Appeal allowed in part. Portions of statement of claim alleging province breach duty to consult with First Nation with respect to mining project was struck with leave to amend. Fed- eral Court possessed jurisdiction over portions of claim that alleged breach of province's obligations under PFN settlement agreement. Portion of claim that alleged vio- lation by province of its duty to consult with First Nation with respect to grant of subsurface lease for mining project fell out- side jurisdiction of Federal Court. Attornment clause in PFN settle- ment agreement was sufficient to ground jurisdiction in Federal Court to interpret and enforce PFN settlement agreement. Por- tions of First Nation's action seek- ing to have Federal Court inter- pret and enforce PFN settlement agreement dealt with treaty land entitlement settlement, and inso- far as First Nation sought to en- force rights to additional reserve lands, these portions of action concerned federal common law and were intimately connected with Indian Act (Can.). Section 17(3)(b) of Federal Courts Act (Can.) was attributive of jurisdic- tion and afforded jurisdiction to Federal Court. Section oper- ated not only to oust jurisdiction of provincial superior courts in cases where there was concurrent jurisdiction but also conferred jurisdiction upon Federal Court and ousting provincial jurisdic- tion in situations where federal Crown and other parties to action agreed in writing that issue would be brought before Federal Court for determination. There was no basis for Federal Court jurisdic- tion over duty to consult claim against province as province did not attorn to jurisdiction of Fed- eral Court. Claim with respect to mining project were distinct from claims that related to PFN settle- ment agreement and attornment clause in PFN settlement agree- ment did not apply. Pelletier J.A. wrote concurring reasons finding there was support for jurisdiction on stand-alone basis. Saskatchewan (Attorney General) v. Pasqua First Na- tion (Apr. 29, 2016, F.C.A., J.D. Denis Pelletier J.A., D.G. Near J.A., and Mary J.L. Gleason J.A., A-11-15) 266 A.C.W.S. (3d) 100. Administrative Law JUDICIAL REVIEW Canadian Radio-television and Telecommunications Commission could focus on broader evidence Appellants were appealing 2015 Wholesale Code decision of Ca- nadian Radio-television and Tele- communications Commission (CRTC). Nine documents were in dispute, and appellant said they were not admissible because not before CRTC, but respondent wanted them admitted. Mo- tion by appellant to set contents of appeal book. Motion granted in part. Admissibility ruling ap- propriate at this stage as it would allow hearing to proceed in more timely, ordinary fashion. Appel- lant was interpreting general rule too literally. CRTC operated in ongoing regulatory context, and continually saw same parties on related issues, so could focus on broader evidence, subject to pro- cedural fairness. Past proceed- ings and regulatory experience could form part of data to draw on. There was at least a case for saying administrative decision maker drew on such data, and seven documents were admissible on that basis, as court may not be able to properly assess decision without them. Two documents, however, post-dated CRTC deci- sion and there was no evidence agenda or policies within pre-dat- ed decision, so these documents were inadmissible. Bell Canada v. 7262591 Can- ada Ltd. (Apr. 20, 2016, F.C.A., David Stratas J.A., A-51-16) 266 A.C.W.S. (3d) 79. Bankruptcy and Insolvency PROPERTY Application for judicial review by trustee was dismissed EB made assignment of property to trustee under Bankruptcy and Insolvency Act (Can.). EB report- ed liabilities of $94,652 all of which were debts to credit card compa- nies. Royal Canadian Mounted Police were informed that EB was preparing to declare bankruptcy and leave country with more than $10,000 in his possession. At air- port, on his way to Turkey, EB was stopped by CBSA customs offi- cers. Search revealed that EB had equivalent of CAD$53,157.83, in various currencies. Funds were seized. Minister of Public Safety and Emergency Preparedness declined return of funds seized and forfeited by customs officers from EB in accordance with Pro- ceeds of Crime (Money Launder- ing) and Terrorist Financing Act (Can.). Trustee unsuccessfully brought application for judicial review. Trustee appealed. Ap- peal dismissed. Minister's discre- tion was limited. Only question that arose under s. 29 of Act was whether evidence confiscated could establish that it was not criminal offence. Bouloud c. Canada (Min- istre de la Sécurité publique et de la Protection civile) (Feb. 8, 2016, F.C.A., Marc Noël C.J., Scott J.A., and de Montigny J.A., A-116-15) Decision at 262 A.C.W.S. (3d) 25 was affirmed. 266 A.C.W.S. (3d) 29. Employment PUBLIC SERVICE Adjudicator applied proper standard of proof to decision Application by grievor for judi- cial review of decision of Public Service Labour Relations Board (PSLRB) adjudicator. Grievor was dismissed from employment as PC-02 Scientist by Deputy Head of Environment Canada when her work performance did not improve. PSLRB adjudicator dismissed grievance challeng- ing termination of grievor's em- ployment. Pursuant to s. 230 of Public Service Labour Relations Act (Can.), adjudicator con- cluded that it was reasonable to terminate grievor's employment. Grievor applied for judicial re- view. Application dismissed. In coming to his decision, adjudica- tor unreasonably interpreted test set out in s. 230. Since Deputy Head had determined that griev- or's performance was unsatisfac- tory, adjudicator should have re- stricted his discussion to wheth- er Deputy Head's decision was reasonable instead of proceeding to two-step analysis as he did. Although adjudicator should not have made independent analy- sis of grievor's performance, his decision was still reasonable as there was sufficient evidence to conclude that Deputy Head's decision was reasonable. 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