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 Accused prisoner charged with assault causing bodily harm, assault of peace officer Trial judge held this was case of extrajudicial punishment that would shock public Constitutional Law REMEDIES intimidating justice system participant following alterca- tion with prison guard during which both men suffered inju- ries. Trial judge acquitted ac- cused of both assault charges and entered stay of proceedings on charge of intimidating jus- tice system participant, finding that accused' and of Canadian Charter of Rights and Freedoms violated. Court of Appeal quashed stay and re- mitted matter to trial court for continuation of accused' s rights under s. 7 Accused appealed decision quashing stay and remitting charge of intimidating justice system participant to trial. Ap- peal to Supreme Court of Cana- da allowed and stay of proceed- ings restored. Trial judge' s trial. under s. 24(1) of Charter should be disturbed on appeal only if trial judge misdirects himself or if decision so clearly wrong as to amount to injustice. Trial judge clearly felt that Charter breach fell within "residual" and "exceptional" category of cases where misconduct "so egre- gious that mere fact of going forward in light of it will be of- fensive". He held this was case of unlawful extrajudicial punish- ment that would shock public. Accused attacked by agent of state while chained, handcuffed, shackled and confined to cell in secure prison van. While ac- cused' s order reprehensible, they would likely s threats against guard not have been uttered but for guard' to other prisoners that accused was sexual offender. Trial judge held that integrity of justice sys- tem further tarnished by reti- cence and "sclerotic solidarity" that characterized testimony at trial of guard' s inappropriate disclosure judge did not commit review- able error in granting stay nor did he err in failing to consider availability of less drastic rem- edies. He expressly considered various alternatives and found none adequate. He concluded that only stay sufficient and ap- propriate to address seriousness and impact of guard' s co-workers. Trial duct. Appellate intervention unwarranted. R. v. Bellusci (Aug. 3, 2012, S.C.C., LeBel C.J., Deschamps, Fish, Abella, Moldaver and Karakatsanis JJ., File No. 34054) Decision at 94 W.C.B. (2d) 67 was reversed. 102 W.C.B. (2d) 312 (21 pp.). s miscon- FEDERAL COURT Aboriginal Peoples Application by appellant First Nation for judicial review of is- suance of aquaculture licenses to two fish farming companies. Provincial regulatory regime for aquaculture had been found to be constitutionally invalid on basis of exclusive federal juris- diction. Federal government worked on enacting federal regulatory legislation within 22 months in order to main- tain continuity. Department of Fisheries and Oceans (DFO) led extensive consultation pro- cess to obtain input from inter- ested parties. DFO entered into agreements with Aboriginal Aquaculture Association and Consultation regarding regulatory framework was not meaningless CROWN RELATIONSHIP These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. First Nations Fisheries Council (FNFC) to assist with consult- ing First Nations. FNFC ex- pressed concern that DFO was not really interested in address- ing concerns of First Nations. DFO prepared regulations and invited First Nations to com- ment on them. DFO made amendments based on feed- back received. Amendments did not address any of appellant First Nation' lant First Nation was particu- larly concerned about continu- ing existing licences without addressing adverse impacts of existing licences. Appellant First Nation accepted that con- sultation would be ongoing af- ter new licences were issued but asked that certain licences not be issued. DFO proceeded to issue licences to all existing pro- vincial licence holders. Appel- lant First Nation took exception to licences being issued to two particular fish farming compa- nies operating in appellant First Nation' s concerns. Appel- ritory. Application dismissed. Appellant First Nation had standing to bring application without proceeding in repre- sentative capacity but failed to establish breach of Crown' s traditional fishing ter- to consult. Fundamental shiſt in management of aquaculture in- dustry resulted in obligation to consult all First Nations present in region. Renewal of licences also resulted in duty to consult. In absence of renewal of licenc- es, commercial activity autho- rized by licences would have to come to halt. Each renewal of licence could affect claimed right or title, if only incremen- tally. Extent of changes brought about by renewal of licence was crucial factor to consider when assessing extent of duty to con- sult. Seriousness of impact on appellant First Nation' s duty aboriginal right caused by is- suance of impugned licences s asserted remained open question. Con- sultation required in this case was clearly not at upper end of spectrum but it was not at lower end of spectrum either. Regard- less of extent of consultation re- quired, federal government had done what was required in cir- cumstances of case to maintain honour of Crown and to effect reconciliation with respect to interests at stake. DFO had con- sulted extensively over course of 22 months. DFO then issued licences on transitional basis to allow for further review of licence conditions and oppor- tunity for further consultations. Existing provincial restrictions on maximum production and permissible species had been maintained. When viewed as whole, DFO' garding regulatory framework and issuance of licences was reasonable and certainly not meaningless. Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attor- ney General) (May 3, 2012, F.C., de Montigny J., File No. T-70-11) 217 A.C.W.S. (3d) 751 (58 pp.). s consultation re- Employment Second judicial review of ad- judicator' Applicant had not identified any exclusion of seasonal employees PUBLIC SERVICE right to reimbursement of trav- el expenses for seasonal work- ers under terms of Isolated Post Policy (IPP). First adjudicator concluded that benefits claimed were only available during sea- sonal employment and not dur- ing off-season with only excep- tion being when, for operational requirements, employer cannot grant employee' s decision regarding his seasonal employment. First judicial review found initial ad- judicator' sonable and matter was referred back to another adjudicator to s decision to be unrea- be decided in accordance with reasons of court. Judicial review dismissed. Applicant' ments that adjudicator failed to follow court' s argu- cause he did not follow modern approach to interpretation and allegedly ignored central as- pect of case could not succeed. There was no such direction and moreover those matters were more properly question of reasonableness of decision. Ad- judicator' s directions be- seasonal employees were "em- ployees" under IPP even when seasonally laid off. His conclu- sion was based on such factors as apparent intent of IPP and absence of exclusion for sea- sonal employees, "application" s. outlining scope of that policy and definition of "employee" in the policy. Applicant had not identified any applicable exclu- sion of seasonal employees nor had it pointed to anything un- reasonable in adjudicator' s conclusion was that soning. Canada (Attorney General) v. Burden (Apr. 2, 2012, F.C., Phel- an J., File No. T-1292-11) 217 A.C.W.S. (3d) 870 (16 pp.). s rea- Immigration Application by Minister for judicial review, pursuant to s. 72(1) of Board erred in determining that hybrid offence could be considered not serious EXCLUSION AND EXPULSION Refugee Protection Act (Can.), of decision by board rejecting respondent' Immigration and s request during refugee protection in Canada. Board determined that respon- dent was neither Convention Refugee within meaning of s. 96 of Act nor person in need of protection within meaning of s. 97 of Act. Board concluded that respondent' s application for cumstances that led him to flee his native country, India, were s account of cir- November 5, 2012 • Law Times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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