ARCTIC OBITER

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20 | <strong>ARCTIC</strong> <strong>OBITER</strong> S.C.C. UPDATE HERE IS A SUMMARY OF ALL APPEALS AND ALL LEAVES TO APPEAL (ONES GRANTED – SO YOU KNOW WHAT AREAS OF LAW THE S.C.C. WILL SOON BE DEALING WITH IN CASE ANY MAY BE AN AREA OF LAW YOU’RE LITIGATING/ADVISING/MANAGING). FOR LEAVES, I’VE SPECIFICALLY ADDED IN BOTH THE DATE THE S.C.C. GRANTED LEAVE AND THE DATE OF THE C.A. JUDGMENT BELOW, IN CASE YOU WANT TO TRACK AND CHECK OUT THE C.A. JUDGMENT. APPEAL GRANTED CRIMINAL LAW: DELAY R. v. Godin (Ont. C.A, June 12, 2008)(32740) 2009 SCC 26 (Lexum) | June 4, 2009 Delay of 30 months (where ‛the delay was virtually entirely attributable to the Crown or institutional delay and was largely unexplained‛) exceeds the guidelines. in R. v. Morin , [1992] 1 S.C.R. 771 CRIMINAL LAW: FORFEITURE R. v. Craig (B.C.C.A., April 24, 2007) (32102) 2009 SCC 23 (Lexum) | May 29, 2009 R. v. Nguyen (B.C.C.A., September 29, 2007) (32359) 2009 SCC 25 (Lexum) | May 29, 2009 R. v. Ouellette (Que. C.A., March 29, 2007) (32057) 2009 SCC 24 (Lexum) | May 29, 2009 While the rest of an accused's sentence is governed by principles set out in the Criminal Code, forfeiture of offence-related real property is governed by s. 19.1(3) of the Controlled Drugs and Substances Act, and the proportionality is set out therein is different from, and independent, from sentencing. CRIMINAL LAW: INVESTIGATIVE HEARSAY & POLICE OPINION TESTIMONY R. v. Van (Ont. C.A., May 14, 2008)(32681) 2009 SCC 22 (Lexum) | May 28, 2008 Where a statement is made during trial (here by a police officer) constitutes heresay and opinion evidence (in this case including a statement that the police officer believed the accused to be guilty) the trial judge has to give the limiting instruction on the permissible and impermissible uses to which that evidence can be put. Where defence counsel fails to object, and registered no complaint following the trial judge’s jury charge (which contained no limiting instruction): That may suggest that the error was not serious or did not result in an unfair trial but the error might still be considered serious despite the absence of an objection at trial. CRIMINAL LAW: MENTAL STATE OF DECEASED; CIRCUMSTANTIAL EVIDENCE; LIMITING INSTRUCTIONS R. v. Griffin (32649); R. v. Harris (32650) (Que. C.A., May 2, 2008) 2009 SCC 28 (Lexum) | June 18, 2009 Judges must instruct juries on circumstantial evidence, such that the jury must understand that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. This message to the jury can be achieved in different ways. Where there is any ambiguity, trial judges are wise to recharge the jury. CRIMINAL LAW: PRIOR CONSISTENT STATEMENTS R. v. Ellard (B.C.C.A., September 5, 2008)(32835) 2009 SCC 27 (Lexum) | June 12, 2009 The S.C.C. in this case stated: prior consistent statements are presumptively inadmissible the rationale for excluding them is that repetition does not, and should not be seen to, enhance the value or truth of testimony because there is a danger that similar prior statements, particularly ones made under oath, could appear to be more credible to a jury, they must be treated with caution certain exceptions have nevertheless developed in the jurisprudence, in particular, where a party has made an allegation of recent fabrication, the opposing party can rebut the allegation by introducing prior statements made before the alleged fabrication arose, that are consistent with the testimony at trial the allegation need not be express — it is enough if "in light of the circumstances of the case and the conduct of the trial, the apparent position of the opposing party is that there has been a prior contrivance" to be "recent", the fabrication need only have been made after the event testified about a mere contradiction in the evidence is not enough to engage the recent fabrication exception however, a "fabrication" can include being influenced by outside sources to rebut an allegation of recent fabrication, it is necessary to identify statements made prior to the existence of a motive or of circumstances leading to fabrication in all cases, the timing of the prior
JUNE 2009 | 21 consistent statements will be central to whether they are admissible where an error is made by the trial judge in admitting statements, the curative proviso in 686(1)(b)(iii) of the Criminal Code can be used where the error is harmless, or if serious, is counterbalanced by evidence so overwhelming against the accused that no substantial wrong or miscarriage of justice resulted because there is a danger that the repetition of prior consistent statements may bolster a witness's reliability, a limiting instruction will almost always be required where such statements are admitted delineated exceptions to the ‚generally stringent rule‛ include: where the defence itself relies on the prior statement; where the prior statement was not offered as proof of the underlying fact; where the concern over self-corroboration and thereby bolstering the witness's reliability is not present where defence counsel fail to ask for a limiting instruction, such is not determinative, as the responsibility for the jury charge ultimately falls on the trial judge. TAX: FEDERAL DEEMED TRUSTS Caisse populaire Desjardins v. Canada (Que. C.A., November 8, 2006) (31787) 2009 SCC 29 (Lexum) | June 19, 2008 The definition of ‚security interest‛ in s. 224 (1.3) of the Income Tax Act is wide, and it is federal law that is to be used for that definition, not any differing provincial law, so that federal deemed trusts are valid. LEAVES TO APPEAL GRANTED ADMINISTRATIVE LAW: CROWN AGENCY LIABILITY A group of six leaves to appeal were granted on the issue of to what extent, and in what circumstances, can a Crown agency be liable. A subsidiary, though important, issue is the jurisdiction of the Federal Court. The cases are: Parrish & Heimbecker(33006); TeleZone Inc (33041); Fielding Chemical Technologies (33042); James Blackler (33043); Dennis Manuge (33103);Canadian Food Inspection Agency (32880). CHARTER: FREEDOM OF EXPRESSION There is a publication ban in this case where the main issue is whether the mandatory publication ban on bail hearings at the request of an accused under s.517 of the Criminal Code is constitutional. Toronto Star Newspapers Ltd. et al v. Her Majesty the Queen in Right of Canada et al (Ont. C.A., January 26, 2009) (33085) May 28, 2009 CHARTER & CLASS ACTIONS: DISCRIMINATION Are the supplementary death benefit payments in the Public Service Superannuation Act and Canadian Forces Superannuation Act discrimination contrary to s. 15 of the Charter. Hazel Ruth Withler and Joan Helen Fitzsimonds v. Attorney General of Canada (B.C.C.A., December 23, 2008) (33039) May 28, 2009 CHARTER: DAMAGES Is there a Charter breach, and if so are damages payable, where a protester is arrested and then later released without charges. Vancouver & B.C. v. Ward (B.C.C.A., January 27, 2009) (33089) June 18, 2009 CRIMINAL LAW: SEARCH & SEIZURE Should two truck drivers have been aquitted when evidence regarding $115,000 in cash and 392 pounds of marihuana was excluded. Nolet & Vatsis v. R (Sask. C.A., January 21, 2009) (33032) June 18, 2009 CRIMINAL LAW: TERRORISM There is a publication ban in this case where the issue remains the validity of the Canada Evidence Act provisions to protect national security information. R. v. F.A. et al (Ont. S.C.J., January 15, 2009) (33066) June 18, 2009 EXTRADITION Should a Roma family (granted refugee status in Canada) be extradited to Hungary on the basis of alleged fraud. Németh v. Canada (Que. C.A., January 22, 2009) (33016) June 18, 2009 EXTRADITION There is a publication ban in this case, which concerns extradition from Canada to a country with the death penalty. M.J.C.K. v. Minister of Justice for Canada (B.C.C.A., January 7, 2009)(32500)May 28, 2009 PHARMACEUTICALS: NOTICES OF COMPLIANCE When is a notice of compliance required, and in what circumstances can it be overturned on judicial review. Nu-Pharm Inc. v. R.(Fed. C.A., July 3, 2008) (32830) June 18, 2009 Eugene Meehan, Q.C., is a Litigation Partner at Lang Michener, Ottawa. His primary area of work is with the Supreme Court of Canada, mainly assisting other lawyers in taking cases (both Leave to Appeal and Appeal). He also does Public Law generally. For previous summaries, and to keep up-to-date with all SCC appeals and leave to appeals, contact Eugene at emeehan@langmichener.ca.
Page 1 and 2: ARCTIC OBITER J UNE 2009 V OLUME XI
Page 3 and 4: JUNE 2009 | 3 PRESIDENT’S MESSAGE
Page 5 and 6: JUNE 2009 | 5 REMINDER A call for n
Page 7 and 8: JUNE 2009 | 7 AFTER HOURS Court of
Page 9 and 10: JUNE 2009 | 9 member may be found t
Page 11 and 12: JUNE 2009 | 11 In some cases, trust
Page 13 and 14: JUNE 2009 | 13 A contribution towar
Page 15 and 16: JUNE 2009 | 15 life. More law firms
Page 17 and 18: JUNE 2009 | 17 LEGISLATIVE NEWS by
Page 19: JUNE 2009 | 19 further, in default
Page 23: JUNE 2009 | 23 RESOURCES The Law So

ARCTIC OBITER

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