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 SUPREME Motor Vehicles Accused driving on unpaved back road which was relatively steep, snow-covered and slip- pery. Visibility limited due to fog. Driver of oncoming tractor- trailer testified accused stopped before proceeding onto highway but drove into tractor-trailer' path. Accused's passenger killed simple misjudgment but not marked departure from standard of care DANGEROUS DRIVING Accused's decision consistent with s and accused had no memory of collision. Accused convicted of dangerous driving causing death. Trial judge concluded accused' dangerous and driving consti- tuted marked departure from standard of care reasonable per- son would observe in circum- stances. No evidence that could raise reasonable doubt that reasonable person would not have been aware of risks since accused had no memory. Court of Appeal dismissed accused' s conduct objectively appeal, finding trial judge made legal error but error harmless. Appeal to Supreme Court of Canada allowed, conviction set aside and acquittal entered. Must be meaningful analysis of both prohibited conduct and re- quired fault elements. Actus reus is driving in manner dangerous to public in circumstances. Fo- cus on risks created by accused' s manner of driving, not conse- quences. Mens rea is that degree of care exercised by accused was marked departure from stan- dard of care reasonable person would observe in accused' s cumstances. Dangerous driving is serious criminal offence and critically important to ensure fault requirement established. s cir- Distinction between mere de- parture, which may support civil liability, and marked departure required for criminal fault, mat- ter of degree. Simple careless- ness generally not criminal. Determining whether required objective fault element proved generally matter of drawing inferences. Required mens rea may be inferred from fact ac- cused drove in manner consti- tuting marked departure from norm. Proof of actus reus, with- out more, not supporting rea- sonable inference that required fault element present. Trial judge erred by failing to conduct meaningful inquiry and simply inferred marked departure from fact that driving was objectively dangerous. Court of Appeal erred in finding trial judge' ror harmless. No evidence to support conclusion this "advertent" negligence and trial judge' s er- was ture erroneous. Appropriate to enter acquittal. Record not pro- viding evidence on which prop- erly instructed trier of fact, act- ing reasonably, could conclude accused' s finding of marked depar- marked departure from norm. Accused' with simple misjudgment but not supporting reasonable infer- ence of marked departure from reasonable standard of care ex- pected. R. v. Roy (June 1, 2012, S.C.C., McLachlin C.J.C., LeBel, De- schamps, Fish, Abella, Roth- stein and Cromwell JJ., File No. 33699) Decision at 87 W.C.B. (2d) 155 reversed. 100 W.C.B. (2d) 695 (31 pp.). s standard of care was s decision consistent FEDERAL COURT OF APPEAL Constitutional Law ABORIGINAL RIGHTS Duty to consult only arises when These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. Commission renewed for peri- od of eight years uranium min- ing and mill operating licence is- sued ten years earlier to AREVA. Commission also revoked Mid- west uranium site preparation licence and incorporated into AREVA' possibility that action may harm aboriginal right maintenance and caretaking activities at Midwest site. Appel- lants' principal ground of appeal was that commission' s McClean Lake licence was erroneous in law because it was made in breach of their con- stitutional right to be consulted before any action was taken by federal Crown that might harm aboriginal or treaty right pro- tected by s. 35 of Canadian Char- ter of Rights and Freedoms. Ap- pellants also alleged that judge denied them fair opportunity to make submissions before de- ciding not to recuse himself on ground that his son was articling student at firm representing AREVA. Judge disclosed fact of his son' s decision hearing and revealed that he had discussed issue with his Chief Justice, who shared his view that recusal was not warranted. Ap- peal was dismissed. Judge acted entirely properly in deciding not to recuse himself. Judges need not hear submissions from par- ties before deciding whether to recuse themselves on basis of facts that they have themselves disclosed. Judge made no error warranting interference of when he held that appellants had not established that any of them, including three First Nations appellants, had right to be con- sulted on facts of this case before commission renewed AREVA' s employment at start of licence under Nuclear Safety and Control Act (Can.), and revoked Midwest' s incorporated it into AREVA's. s licence and Duty to consult only arises when there is evidence of possibility that proposed action may harm aboriginal or treaty right. Com- mission found no such evidence in this case. There was no error in this conclusion. Fond du Lac Denesuline First Na- tion v. Canada (Attorney Gen- eral) (Mar. 5, 2012, F.C.A., Blais C.J., Evans and Layden-Steven- son JJ.A., File No. A-402-10) De- cision at 193 A.C.W.S. (3d) 1040 was affirmed. 213 A.C.W.S. (3d) 106 (8 pp.). FEDERAL COURT Immigration Application by refugee for dec- laration that deportation or- der was no longer valid and for order prohibiting Minister of Public Safety and Emergency Preparedness from removing him from Canada. Refugee was citizen of Sri Lanka who first came to Canada in August 1994. Refugee was granted refugee status without hearing. Refugee became permanent resident in March 1997. Refugee accumu- lated four criminal convictions between 1999 and 2001. Min- ister issued report alleging refu- gee was inadmissible to Canada based on involvement in orga- nized criminality. Immigration and Refugee Board determined refugee was inadmissible and is- sued deportation order against him in May 2003. Refugee un- successfully brought application for judicial review. Danger opin- ion was issued in October 2005 and refugee was removed from Canada in December 2005. Danger opinion was ultimately quashed by Federal Court of Appeal in April 2008. Minister issued refugee temporary resi- dent visa in February 2009. Ref- ugee was detained upon arrival in Canada and was eventually Deportation order was spent once it was executed EXCLUSION AND EXPULSION released on house arrest. New danger opinion was issued in February 2011. Canada Border Services Agency told refugee he would be removed pursuant to prior deportation order. Further proceedings ensued that had no bearing on present application. Application granted in part. Deportation order had been valid when made but its force was spent when it was executed. Minister was therefore prohib- ited from using prior deporta- tion order to remove refugee from Canada. Issue of whether or not Minister had continuing jurisdiction to remove refugee pursuant to deportation order depended on nature and pur- pose of this kind of deportation order and role it was intended to play in immigration system. Issue boiled down to whether deportation order authorized only single removal or defined refugee' him subject to removal at any time. Considering that deported persons could be authorized to return to Canada in certain cir- cumstances, it simply did not make sense that such person could still be subject to removal. Possibility that authorization to return included implicit stay of deportation order did not ad- dress fact that s. 228(1)(c)(ii) of Regulations under Immigra- tion and Refugee Protection Act (Can.), required deportation order to be issued when person returned to Canada without au- thorization. s status and rendered (ii) of Regulations would not be necessary if single deportation order could be used for succes- sive removals. While s. 48 did not refer to duration of depor- tation order, scheme of Act and regulations as whole suggested word "enforceable" in s. 48 must mean "executable only once". Authorities indicating appeal from removal order could not be brought aſter removal order was Section 228(1)(c) August 6, 2012 • LAw times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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