Administrative Law/Judges: Jurisdiction

Canada (Judicial Council) v. Girouard, 2019 FCA 148 (38765)

The Respondent, Justice Girouard, was appointed to the Québec Superior Court in 2010. He was suspended with pay in 2013. His conduct was reviewed by the Applicant, the Canadian Judicial Council. In the course of that review, Justice Girouard filed applications for judicial review against the Council in the Federal Court. In response to those applications by Justice Girouard, the Council informed the Federal Court in 2018 it did not recognize the court’s jurisdiction. In an order, the Federal Court then granted party status to the Council for the purpose of arguing the jurisdiction issue, and directed it to proceed by way of motion to strike Justice Girouard’s applications for judicial review. The Federal Court dismissed the Council’s motions to strike. Noël J. found the Council is a “federal board, commission or other tribunal” as defined in s. 2 of the Federal Courts Act and the Council’s reports and recommendations are reviewable under s. 18.1 of the Federal Courts Act. The Fed. C.A. dismissed the appeal. “The motion for leave to intervene by Martin Lajeunesse is dismissed. The motion for an extension of time to serve the response of the applicant to the motion for leave to intervene is dismissed. The application for leave to appeal…is dismissed. Wagner C.J. and Côté J. took no part in the judgment.”

Civil Procedure: Judicial Immunity

McPherson v. Campbell, 2019 NSCA 23 (38726)

Mr. McPherson sued the Respondent judge of the Nova Scotia Supreme Court, accusing him of having committed torts and crimes that caused Mr. McPherson damages. The Respondent brought a motion seeking dismissal of the action and injunctive relief. The motion judge found the Respondent was protected by judicial immunity and granted the motion to dismiss the action. The motion judge also granted a permanent injunction barring Mr. McPherson from commencing any proceedings in any court in Nova Scotia except with the court’s leave. The C.A. granted Mr. McPherson’s application for leave to appeal then dismissed his appeal. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Effective Assistance of Counsel

M.E. v. R., 2018 QCCA 1756 (38701)

M.E. was found guilty on two charges. He appealed that decision to the Superior Court. The Superior Court dismissed the appeal and concluded M.E.’s first argument, that his right to the effective assistance of counsel had been violated, could not succeed. It reached the same conclusion on his second argument that the trial judge’s verdict had been unreasonable. The C.A. unanimously granted a motion to dismiss M.E.’s appeal. M.E. had to apply for leave to appeal the Superior Court’s judgment. In a second judgment, the C.A. took note of the dismissal of the appeal.  “The application for leave to appeal…is dismissed.”

Criminal Law: Involuntary Intoxication v. Automatism

LeBoutillier v. R., 2018 QCCA 79 (38723)

Mr. LeBoutillier, was found behind the wheel of a vehicle that had been immobilized as a result of an accident. Mr. LeBoutillier testified he remembered nothing that had happened after about 12:30 a.m. on that day. He had been arrested at the scene. Two breathalyzer tests produced results of 175 mg of alcohol in 100 ml of blood and 167 mg of alcohol in 100 ml of blood.  At trial, Mr. LeBoutillier raised the defence of involuntary intoxication, but the trial judge concluded it was instead a defence of automatism. The trial judge asserted that that defence could not be raised in this case without evidence from an expert in psychology or psychiatry. As a result, Mr. LeBoutillier was found guilty of operating a vehicle with a blood alcohol concentration that exceeded 80 mg of alcohol in 100 ml of blood. The Québec Superior Court dismissed Mr. LeBoutillier’s appeal. A judge of the C.A. sitting alone declined to grant Mr. LeBoutillier leave to appeal that judgment. “The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal…would have been dismissed.”

Criminal Law: Provocation

Palma v. R., 2019 QCCA 762 (38744)

The Applicant was charged with first degree murder. The charge resulted from a confession he made to the police, a couple of days after the victim’s corpse had been discovered in a closet in his house, when he returned to his room with the officers to reconstruct the events. The accused admitted to having smothered the victim with a pillow because she was getting worked up and he did not want her to wake his parents up. He said the victim had lost patience while they talked about an affair she had been having with another man. The accused added she had insulted him and they were both under the influence of alcohol and cocaine. A jury found the accused guilty of second degree murder. The C.A. unanimously dismissed the appeal of the accused. It held, inter alia, there was no air of reality to the defence of provocation and the trial judge’s instructions to the jury had been appropriate. “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.”

Criminal Law: Sentencing; DUI

R. v. Lacelle Belec, 2019 QCCA 711 (38690)

Mr. Lacelle Belec pleaded guilty to a charge of operating a motor vehicle while his ability to operate it was impaired by alcohol or a drug and causing bodily harm as a result. Judge Richer of the Court of Québec sentenced Mr. Lacelle Belec to imprisonment for one year, followed by a two-year driving prohibition. In his opinion, imprisonment for one year met the requirements of the factors of denunciation and deterrence that must apply primarily when the consequences for the victim are so serious, even if the offender has no criminal record. The C.A. varied the sentence, imposing a term of imprisonment for six months. In its view, the trial judge had undervalued the remorse shown by the accused, had attached excessive importance to the consequences for the victim and to the objectives of deterrence and denunciation, and had unjustifiably disregarded the other sentencing objectives, which had led to a sentence that was demonstrably unfit. “The application for leave to appeal…is dismissed.”

Criminal Law:  Sentencing; Importing

Passera v. R., 2019 ONCA 527 (38811)

The Applicant was arrested at Pearson International Airport upon her return flight from a one‑week trip to St. Lucia. Concealed in her suitcase was 1,994 grams of cocaine, worth between $80,000 and $160,000 Canadian, depending on how sold. The Applicant was not released on bail. After a trial by judge and jury, the Applicant was convicted of importing. The matter was remanded for sentencing. In the interim, the Applicant filed an amended notice of constitutional question. The sentencing judge dismissed the Applicant’s constitutional application and held a sentence of six years would be appropriate. The Applicant received bail pending appeal. The Applicant’s sentence appeal was dismissed. “The application for leave to appeal…is dismissed.”

Criminal Law: Transcript Discrepancies

Duong v. R., 2019 BCCA 299 (38821)

Following a shooting in a park in Richmond, B.C., Mr. Duong and a co‑accused were charged with attempted murder and unlawful discharge of a weapon. The Crown’s case against Mr. Duong depended on circumstantial evidence. It included surveillance before and after the shooting, intercepts of Mr. Duong’s conversations with his co‑accused in the co‑accused’s vehicle before and after the shooting, and gunshot residue evidence. The parties filed signed admissions. Mr. Duong was convicted on both charges. In her reasons for conviction, the trial judge held that two utterances in one intercept differed from what was set out in the transcript agreed to and filed by the parties and who spoke one of the utterances differed from the transcript. She did not advise counsel of her intent to depart from the transcript or provide an opportunity to make submissions. The trial judge also inferred that before the shooting Mr. Duong had directed his girlfriend to use his car to draw the attention of the police away from him. Mr. Duong appealed. The C.A. agreed the trial judge erred but upheld the convictions. “The application for leave to appeal…is dismissed.”

Insurance: Coverage; Credit Insurance

Anderson Group Inc. v. Euler Hermes Canada, 2019 QCCA 1009 (38770)

The Applicant, Anderson Group Inc., a company specialized in the manufacturing, sale and distribution of farm equipment, instituted, in this case, a proceeding against its insurer, the Respondent, Euler Hermes Canada, for payment of an insurance indemnity. At Euler Hermes’s request, Anderson Group had obtained a judicial decision confirming its business partner, Centre d’usinage de Beauce inc., was responsible for failing to pay invoices issued to it following the delivery of excavation equipment. Aside from the insurance indemnity, Anderson Group also claimed extrajudicial costs incurred in order to obtain the decision. The transactions between Anderson Group and Centre d’usinage de Beauce were covered by the credit insurance contract between Anderson Group and Euler Hermes. The Superior Court granted Anderson Group’s application. The C.A. allowed the appeal.  “The application for leave to appeal…is dismissed with costs.”

Municipal/Construction Law: Tenders; Court Access

R. v. Cote & Son Excavating Ltd. v. Burnaby (City), 2019 BCCA 168 (38763)

Cote & Son Excavating Ltd. was a construction contractor that does much of its work on municipal infrastructure for the City of Burnaby. After J. Cote began an action against the City in relation to one of its contracts, the City added a Business Performance Clause to the invitation to tender on municipal works. That clause indicated the City would not accept tenders from anyone engaged in a legal proceeding against the City in relation to a contract with or works or services provided to the City, or has been engaged in such an action within the previous two years. The clause prevented J. Côté from bidding on work for the City. J. Cote brought a summary trial application against the City seeking declarations the clause was of no force and effect because it unjustifiably infringed the constitutionally‑protected rule of law and, contrary to the Charter, the right of reasonable access to the courts and, contrary to the Constitution Act prevented access to the courts. It also sought damages pursuant to s. 24 of the Charter. The City deleted the impugned clause from its tender terms prior to trial and then brought an application seeking to have the proceedings declared moot. As the request for damages continued to be a live controversy between the parties, the application was addressed even though the matter was no longer a live issue. The trial judge dismissed the action and the C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”

Securities in Québec: J.R. v. Appeal

Nadeau v. Autorité des marchés financiers, 2018 QCCA 1913 (38714)

The Respondent Autorité des marchés financiers alleged the Applicants had committed offences under the Securities Act. The Court of Québec found the Applicants guilty on a number of counts. The Applicants filed a J.R. in which they sought a writ of mandamus directing the trial be annulled and ordering a new trial. The Autorité des marchés financiers applied for dismissal of the application for judicial review. The Superior Court granted that motion, holding the Applicants could not apply for judicial review given there was a right of appeal from the conviction. The C.A. dismissed the Applicants’ motion for leave to appeal, observing the proposed appeal raised no question of law of general importance. “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 to the respondent, Autorité des marchés financiers. Kasirer J. took no part in the judgment.”

Torts: Multiple  MVA’s

Kyung v. Greenway-Brown, 2018 BCSC 287 (38696)

Ms. Greenway‑Brown was allegedly injured in a series of five MVA’s that occurred between November 2014 and June 2017. In the first accident, she rear‑ended another vehicle. Three of the accidents occurred in parking lots with little vehicular damage. In the other accident, Ms. Greenway‑Brown’s vehicle was rear‑ended by another vehicle whose driver left the scene. Damage to her vehicle in all of these accidents was minimal. She claimed to have suffered soft tissue type injuries in all of the accidents. The trial judge dismissed the five actions. The C.A. allowed the Respondent’s appeals in four of the actions and ordered new trials. “The motion to join four Court of Appeal for British Columbia files in a single application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”

Tribunals: Judicial Independence

Walter v. British Columbia, 2019 BCCA 221 (38786)

The Applicant is the B.C. Review Board Chairperson. Compensation for the Chairperson is set pursuant to the provisions of the Administrative Tribunals Act. The Act provided that remuneration of board members is to be set by the responsible minister in accordance with the general directive of the Treasury Board. The Chairperson’s income is set by the Respondent Attorney General according to a Directive from the Treasury Board. By the time his petition was heard, the Chairperson’s income had been increased to the recommended maximum. The chambers judge found the Chairperson’s position is not protected by the constitutional principle of judicial independence and dismissed the application for judicial review. The subsequent appeal was dismissed. “The application for leave to appeal…is dismissed without costs.”