Granted (1)

Criminal Law: Bail

Reilly v. R., 2019 ABCA 212 (38785)
The allegations against the Applicant were that he had an argument with his intimate partner; alleged he grabbed her by the neck, pushed her, pinned her down, and pushed her back against the stairs. She believed she briefly lost consciousness. As a result of the argument, the complainant had a swollen finger, and red marks on her neck and buttocks. At the time the Applicant was under conditions of probation requiring him to keep the peace (arising from a conviction for uttering threats against another person). The Applicant was arrested on April 4, 2017 at 11:50 a.m. He was not brought before a justice for his bail hearing until April 5, 2017 at 10:59 p.m. The Crown conceded the Applicant had been held for longer than 24 hours before he was taken before a justice contrary to s. 503(1)(a) of the Criminal Code, and this was a breach of his ss. 7, 9 and 11(e) Charter rights. The provincial court judge issued a stay of proceedings. The C.A. set aside the stay of proceedings and ordered the Applicant to stand trial. “The application for leave to appeal… is granted.”

Dismissed (4)

Civil Procedure: Costs; Abuse of Process

Hunt v. Worrod, 2019 ONCA 540 (38822)
This Leave concerns a costs award of $192,639.77 to be paid by a non‑party, Legal Aid Ontario (“LAO”), due to its role in funding a party in a family law dispute. The application judge concluded by failing to adequately monitor and assess the merits of the defence it was funding, LAO engaged in an abuse of process. The C.A. allowed the appeal and set aside the award. “The application for leave to appeal…is dismissed with costs to the respondent, Legal Aid Ontario.”

Class Actions: Certification; Decertification

CIBC World Markets Inc. v. Crooks, 2019 NSCA 46 (38787)
The Respondents were clients of the Applicant involved in trading options on the advice of their investment advisor. The Respondents commenced a proposed class proceeding as a result of the losses they suffered due to a calculation error. The Respondents’ action was certified as a class proceeding. Next, the Applicant made admissions regarding some of the common issues. The action was decertified as a class proceeding. The appeal was allowed, setting aside the portion of the order which decertified the action of a class proceeding. “The application for leave to appeal… is dismissed with costs.”

Criminal Law: “Mutual Legal Assistance” Constitutionality

R. v. Rajaratnam, 2019 BCCA 209 (38812)

In the summer of 2010, the MV Sun Sea sailed across the Pacific Ocean and arrived in Canadian territorial waters. It carried 492 Tamil migrants fleeing the aftermath of war, all of whom claimed refugee status in Canada upon arrival. The three Respondents were charged along with a fourth accused with organizing, inducing, aiding or abetting people to come into Canada, colloquially known as “human smuggling”, in contravention of s. 117 of the Immigration and Refugee Protection Act. Rather than call as witnesses the various police officers from Thailand who arrested the Respondents and who might be able to attest to these matters from their own knowledge, the Crown proposed to introduce this evidence pursuant to the provisions of s. 36 of the Mutual Legal Assistance in Criminal Matters Act (MLACMA). The Respondents filed an application challenging the constitutional validity of s. 36 of the MLACMA on the basis it infringed ss. 7 and 11(d) of the Charter, and sought a declaration of invalidity pursuant to s. 52(1) of the Constitution Act, 1982. Ehrcke J. granted the Respondents’ application, and found s. 36 of the MLACMA infringed an accused’s right to a fair trial and to make full answer and defence and therefore, violates ss. 7 and 11(d). Ehrcke J. held s. 36 of the MLACMA is unconstitutional and declared ss. 36(1) and (2) to be of no force and effect. The Respondents were acquitted of human smuggling charges laid under s. 117 of the Immigration and Refugee Protection Act. The C.A. upheld the verdicts of acquittal and confirmed the constitutional invalidity of s. 36 of the MLACMA. The C.A. held s. 36 of the MLACMA was declared to be of no force and effect with respect to Crown evidence tendered in a criminal trial. “The motion to join three Court of Appeal for British Columbia in a single application for leave to appeal is granted. 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.”

Municipal/Environmental Law: Single Use Plastics

Victoria (City) v. Canadian Plastic Bag Association, 2019 BCCA 254 (38828)
In January 2018, the City of Victoria enacted a bylaw prohibiting merchants from providing plastic bags to customers on check out and requiring any bags made available be paper or reusable bags and customers be required to pay a fee for them. Victoria had delegated authority from the province under the Community Charter to regulate in relation to business. The Community Charter also allowed it to enact bylaws in relation to protection of the natural environment but only if it had entered into an agreement with the province or gotten the approval of the Minister of Environment, which Victoria had not done for this bylaw. The Canadian Plastic Bag Association filed a petition for judicial review of the bylaw, seeking a declaration the bylaw was ultra vires Victoria and an order quashing it. At first instance, the judge found the bylaw was properly characterized as a bylaw regulating in relation to business. The C.A. overturned that decision, holding the bylaw related to the protection of the environment and quashing it. “The application for leave to appeal… is dismissed with costs.”