Law Times

Law Times • may 1, 2017 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Evidence EXAMINATION OF WITNESSES Previous statements Type of evidence placed improperly before jury was particularly pernicious Accused was charged with sev- eral offences against complain- ant wife including assault, sexual assault, and assault with weapon. Before trial, accused applied to cross-examine wife on her pre- vious sexual activity, including video of parties engaging in anal sex and texts between wife and person with whom she was hav- ing affair during marriage. Trial judge admitted cross examina- tion on texts and video tran- script. Defence counsel complet- ed cross-examination of wife on Friday afternoon. Crown coun- sel advised he had no questions on re-direct and trial resumed on following Tuesday. At com- mencement of Tuesday hearing, Crown sought to have com- plainant recalled so she could testify as to what she told others to rebut defence's suggestion of recent fabrication. Accused was acquitted of all charges. Crown's appeal, in part on basis that trial judge erred in refusing to permit Crown to lead evidence to rebut allegation of recent fabrication that arose during cross-exam- ination of wife, was dismissed. Crown appealed. Appeal al- lowed. Acquittals were set aside and new trial was ordered. Trial judge erred both in admitting certain evidence and excluding other evidence. Trial judge erred in allowing text message and video transcript to be used as they had potential of feeding first of the twin myths and that in cir- cumstances, proper jury exami- nation could not undo that dam- age. Had evidence of rebutting recent fabrication been allowed, it might have aided in rehabili- tating complainant's credibility, thereby changing jury's view of reliability of complainant's evi- dence. Type of evidence placed improperly before jury was par- ticularly pernicious. R. v. B. (S.) (2017), 2017 Car- swellNf ld 111, 2017 CarswellN- f ld 112, 2017 SCC 16, 2017 CSC 16, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J. (S.C.C.); reversed (2016), 2016 CarswellNf ld 183, 2016 NLCA 20, J.D. Green C.J.N.L., M.H. Rowe J.A., and C.W. White J.A. (N.L. C.A.). Federal Court of Appeal Constitutional Law CHARTER OF RIGHTS AND FREEDOMS Nature of rights and freedoms S. 18(1) of Agriculture and Agri-Food Administrative Monetary Penalties Act was not unconstitutional Applicant was part of pork pro- duction conglomerate involved in production line, slaughter and transport of pigs. Appli- cant requested revision of 12 notices of violation issued by Canadian Food and Inspection Agency related to transporta- tion of animals in manner that caused undue suffering dur- ing journey. Due to high fines in spite of all precautions taken during journey, applicant could not make ends meet. Appli- cant unsuccessfully challenged constitutionality of s. 18(1) of Agriculture and Agri-Food Ad- ministrative Monetary Penalties Act on basis that it violated s. 7 of Canadian Charter of Rights and Freedoms. Applicant brought application for judicial review. Application dismissed. Purpose of Act was to ensure compliance with food legislation and did not aim to punish offenders. Ap- plicant was not person charged under provision insofar as Act is not intended to right wrong done to society but to ensure implementation of regulation of activities in agriculture and agribusiness. It was not demon- strated that regime jeopardized applicant's economic viability or plunged applicant into state of psychological distress related to fear for their health. Amount of fine was determined by tak- ing into account history of each offender for previous violations or offenses, nature of negligence and harm done in accordance with regulations. Mario Côté Inc. c. Canada (Procureur général) (2017), 2017 CarswellNat 517, 2017 CAF 36, Johanne Gauthier J.A., Yves de Montigny J.A., and Mary J.L. Gleason J.A. (F.C.A.). Labour and Employment Law PUBLIC SERVICE EMPLOYEES Appeal and judicial review Applicant's request for reconsideration was doomed to fail On direction of Public Service Labour Relations Board resolv- ing union's unfair labour com- plaint, union and public service employer reached agreement that employees' home contact information would be disclosed to union and this was incor- porated into Board order. Ap- plicant, who was dues-paying member of bargaining unit but not union member, took posi- tion that disclosure of her home contact information to union violated her privacy rights. Ap- plicant's application for judicial review was allowed, and she was granted intervenor status on re- determination that confirmed disclosure with provisions add- ed. Applicant's application for judicial review was dismissed and appeal to Supreme Court of Canada (SCC) was dismissed. Applicant's request for recon- sideration was refused by Board. Applicant applied for judicial review. Application dismissed. Board reasonably determined that applicant's proposed "new" evidence, relating to federal leg- islative history surrounding is- sues of strike votes, final-offer votes and disclosure of home contact information, would not have material effect on outcome. Proposed evidence was not ac- tually new as it had been pub- licly available for years. Board reasonably concluded that ap- plicant was seeking to reopen SCC's judgment on this mat- ter, which definitely addressed her long-standing concern with disclosure of her home con- tact information to union. This concern remained at core of reconsideration request. Board considered relevant factors of importance of finality of its deci- sions, length of and explanation for delay, and absence of new evidence. Applicant's request for reconsideration was doomed to fail in light of deficiencies of her proposed evidence and SCC precedent. Fact that presiding Board member had prior affilia- tion with different federal public service union did not raise rea- sonable apprehension of bias. Bernard v. Canada Revenue Agency (2017), 2017 Carswell- Nat 659, 2017 FCA 40, J.D. Denis Pelletier J.A., Johanne Gauth- ier J.A., and David G. Near J.A. (F.C.A.); application for judicial review refused (2015), 2015 Car- swellNat 3417, 2015 CarswellNat 3418, 2015 PSLREB 59, 2015 CRTEFP 59, Kate Rogers Mem- ber (Can. P.S.L.R.E.B.). Federal Court Aboriginal Law GOVERNMENT OF ABORIGINAL PEOPLE Councils Process that resulted in passage of resolution breached procedural fairness Respondents, purporting to act as chief and council of First Na- tion, passed resolution that pur- ported to vest responsibility for First Nation school board in chief and council and to invalidate de- cisions made by board that were not supported by quorum of council and/or required ratifica- tion of such decisions by major- ity of council. Effect of resolu- tion could include invalidating board's decision to restructure and to dismiss Director of Edu- cation. Applicants maintained that resolution was not valid because it was passed at meet- ing of council that was not duly convened and without notice to chief and council, and resolution was beyond jurisdiction of chief and council. Applicants applied for judicial review of resolution. Application granted. Process that resulted in passage of resolution breached procedural fairness. Meeting was called for only one purpose, which was to discuss fo- rensic audit, and it was not regu- lar meeting of council but was more akin to special meeting. Respondents could not oppor- tunistically spring resolution on chief at meeting called for differ- ent purpose. Although all coun- cillors were present at meeting and chief was aware of concern of some councillors regarding school board, applicants had no advance warning that resolution would be tabled, or of its word- ing, and they had no opportunity to prepare and to make submis- sions. Respondents' actions in 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. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! 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