Granted (1)

Aboriginal Law: Hunting

R. v. Desautel, 2019 BCCA 151 (38734) 

Mr. Desautel shot and killed an elk in the Arrow Lakes region near Castlegar, B.C. He did not have a hunting licence and was not a resident of Canada. He was a member of the American Lakes Tribe of the Confederated Tribes of the Colville Reservation, a citizen of the U.S. and he lived on the Colville Indian Reserve in Washington State. He was charged with hunting without a licence and hunting big game while not being a resident of B.C., contrary to ss. 11(1) and 47(a) of the Wildlife Act. At trial, he maintained he was exercising an Aboriginal right to hunt for ceremonial purposes in the traditional territory of his ancestors. The Provincial Court acquitted Mr. Desautel. A summary conviction appeal was dismissed. An appeal to the C.A. was dismissed. “The application for leave to appeal…is granted. The schedule for serving and filing materials will be set by the Registrar.”

Dismissed (5)

Class Actions/Labour Law: Certification; Jurisdiction 

Rivers v. Waterloo Regional Police Services Board, 2019 ONCA 267 (38707)
The Applicants, who were female police officers of the Waterloo Regional Police Services (“police officers”), sought certification of a class action on behalf of all women members of that police force, asserting multiple claims relating to systemic gender‑based workplace discrimination and harassment, including breach of s. 15  Charter  rights and, as against the Waterloo Regional Police Services Association, breach of the duty of fair representation. The Respondents, who were, the Applicants’ employer and exclusive bargaining agent, brought a motion challenging the Superior Court’s jurisdiction, arguing exclusive jurisdiction over the matter belonged to labour arbitrators and the Human Rights Tribunal of Ontario. The motions judge concluded the Superior Court lacked jurisdiction over the claims. The C.A. dismissed the appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Criminal Law: Search & Seizure

R. v. Omeasoo, et al, 2019 MBCA 43 (38685)

Police received a 911 call regarding a road‑rage incident involving firearms. The information provided by the caller, who was not involved in the firearms incident, was that a red “Chevy” Silverado truck had cut off the driver of another vehicle after he drove up beside the truck and gestured at its driver. Two males exited the truck armed with handguns. There were no shots fired. The caller also provided a description of the men. The officers testified they believed they had reasonable grounds to arrest Omeasoo and White because the truck was found in the area of the firearms incident, it matched the general description of the suspect vehicle, there were two male occupants and they found the bullet in the washroom where the passenger had just been. The officers arrested Omeasoo and White for a firearms investigation and the officers conducted a search. Omeasoo and White were charged with possession of cocaine, methamphetamine and ecstasy for the purpose of trafficking (section 5(2) of the Controlled Drugs and Substances Act, and firearms offences pursuant to ss. 86(2), 88, 90(1) and 94 of the Criminal Code. White was charged with additional weapons offences pursuant to ss. 92 (1) ‑ (2) and 117.01(1). At the conclusion of a voir dire, the trial judge found sections 8, 9 and 10 of the Charterwere breached, excluded the evidence seized by the police pursuant to s. 24(2) of the Charter, and summarily dismissed the charges. The C.A. allowed the Crown appeals and ordered a new trial. “The applications for leave to appeal…are dismissed.”

Criminal Law: Transmission Data Warrants; Assistance Orders 

Re: section 487.02 of the Criminal Code, 2019 NLCA 6 (38639)
The RCMP applied for a transmission data warrant (“TDR warrant”) under s. 492.2(1) of the Criminal Code, in the course of a drug investigation. They were looking for information on unknown telephone numbers associated with an identified telephone number, but the TDR warrant would only capture the unknown numbers and not the names and addresses associated with those numbers. As a result, the RCMP sought an assistance order pursuant to s. 487.02,  which, it argued, would require telecommunications service providers to give the police the subscriber information. The Provincial Court judge refused to issue the assistance order for want of jurisdiction, finding that subscriber information was not “transmission data” within the meaning of s. 492.2 and could therefore not be accessed through an assistance order for a TDR warrant. The Superior Court agreed and dismissed the Crown’s application for certiorari and mandamus. A majority of the C.A. allowed the appeal and remitted the matter to the Provincial Court. Green J.A., dissenting, would have dismissed the appeal. “The motion for leave to be added as a party to serve and file an application for leave to appeal…is dismissed.”

Expropriation: Non-Pecuniary Loss 

Oakley v. Atlantic Mining NS Corp. (D.D.V. Gold Limited), 2019 NSCA 14 (38620)
Atlantic Mining NS Corp owned and operated a gold mine in the rural Nova Scotia community of Moose River Gold Mines. Atlantic acquired some surface title by negotiation. In other cases, Atlantic resorted to expropriation. Wayne Oakley purchased his property in this region in 1997. Atlantic wanted Mr. Oakley’s property for its mine and negotiations were unsuccessful. As a result Atlantic expropriated Mr. Oakley’s residential property. This was done through a vesting order issued by the Minister of Natural Resources under s. 70 of the Mineral Resources Act. In addition to out‑of‑pocket expenses, Mr. Oakley claimed he should be paid non‑pecuniary “losses” for disturbance. The parties agreed on a market value for the residential property but the remaining issue of disturbance losses went before the Nova Scotia Utility and Review Board for determination. The Utility and Review Board agreed with Mr. Oakley that he was entitled to non‑pecuniary “losses” as damages and awarded him the maximum allowable statutory amount of 15% of the market value of his home. The C.A. allowed the appeal and replaced the damages award with a 2% award instead. “The application for leave to appeal…is dismissed with costs to the respondent Atlantic Mining NS Corp (formerly known as DDV Gold Limited).”

Torts: Defamation 

Canadian Broadcasting Corporation v. AARC Society, 2019 ABCA 125 (38675)
The Respondent AARC provided treatment for addicted adolescents.  The Applicants were the CBC and three of its employees.  CBC broadcasted a Fifth Estate program entitled “Powerless”, which criticized AARC. Shortly after the broadcast, CBC posted the “Powerless” program on its webpage. An action in defamation was commenced by AARC against CBC et al.  The program remained on the webpage until sometime in March 2017 when it was removed. CBC reposted the program later in 2017. After this reposting, AARC filed an application seeking an order granting it permission to amend its claim. The Court of Queen’s Bench of Alberta denied some of the amendments on the basis they represented a marked departure from AARC’s original strategy. The C.A. was divided: Wakeling J.A. allowed the appeal. In his view the chambers judge made reversible errors. Pentelechuk J.A. concurred in the result, and McDonald J.A. dissented. “The application for leave to appeal…is dismissed with costs. It is not necessary to decide the applicants’ motion to strike. Martin J. took no part in the judgment.”