Leave Applications Granted on Feb. 1

The Supreme Court yesterday released decisions on applications for leave to appeal in 19 cases. As I mentioned yesterday, leave was granted in six of these applications. In 12 cases, leave was denied, and the final case was remanded to the Alberta Court of Appeal to be determined in accordance with the SCC’s judgment in Double N Earthmovers.

Here are some brief thoughts on the six applications that were granted.

R v Ferguson

The most-watched of these appeals may be R v Ferguson, which raises important constitutional issues. Mr. Ferguson, an RCMP officer, was convicted of manslaughter after shooting a prisoner in the course of a struggle. During the struggle, the victim, Mr. Varley, had gained control of Ferguson’s gun. After wresting it free, Ferguson shot Varley twice – first in the abdomen and then in the head.

In returning the manslaughter verdict, the jury apparently rejected both the charge of second degree murder and Ferguson’s claim of self-defence. The conviction was upheld by the Alberta Court of Appeal (see 2006 ABCA 261).

Where the decision raised particularly interesting constitutional issues was in the trial judge’s sentencing. The judge found that in this case, the four year mandatory minimum sentence for manslaughter constituted cruel and unusual punishment. He then granted Ferguson an individual “constitutional exemption” from the general minimum sentence. In doing so, he seized on a concurring judgment written by Justice Arbour (for Justice McLachlin) in R v Morrisey, [2000] 2 SCR 90, where she wrote that “In cases of manslaughter involving the use of a firearm and arising from criminal negligence causing death, I believe that the better approach is to read the mandatory minimum as applicable in all cases save those in which it would be unconstitutional to do so.”

The Court of Appeal rejected the claim that a four year sentence constituted cruel and unusual punishment. They also criticized the trial judge for failing to do a s. 1 analysis. Finally, they rejected the use of an individual constitutional exemption, noting that there was no precedent for such a remedy. They wrote that “while the door has not technically been closed to that possibility, the remedy still remains without precedent at the Supreme Court level and is incompatible with the current s. 12 analytical framework.”

This is definitely a case to follow. Chief Justice McLachlin seems to favour the individual approach taken by the trial judge. Two judges remain from the majority that rejected this approach. Will next year see the Supreme Court embrace individual constitutional exemptions?

Transportaction Lease Systems

In another closely-watched case, the SCC will review a BC Court of Appeal decision on the liability attaching to a lessor of a vehicle. In Transportaction Lease Systems Inc v Jennifer Yeung, the BCCA held the lessor of the vehicle, Transportaction, liable to Ms. Yeung for damages of $5.8 million arising from an accident caused by the son of the lessor (see 2006 BCCA 217). Under BC’s Motor Vehicle Act, RSBC 1996, c 318, vehicle owners are liable for such damages, but an exemption protects owners of vehicles sold under conditional sale contracts. The BCCA held that this exemption was meant to protect owners who had truly sold the vehicle, and not those situations where the purchaser merely held an option to purchase.

This recalls the situation in Ontario where after a record $12.8 million award against Primus Automotive Financial Services, reforms have been instituted to limit vicarious liability for lessors to $1 million. I think it’s probably safe to assume that if the Supreme Court doesn’t provide lessors with the protection they seek there will be strong lobbying in BC for similar reforms.

Simpson v Mair and WIC Radio

The next appeal, Simpson v Mair and WIC Radio Ltd, also comes from the BC Court of Appeal (“BCCA”). The BCCA overturned a trial judgment which had denied a defamation claim by Ms. Simpson for comments made on a radio program that she was a “dangerous bigot” because of her views on homosexuality (see 2006 BCCA 287). In a judgment which pleased groups aligned with Ms. Simpson, Madame Justice Southin wrote that

The old wisdom, represented by the plaintiff, was that homosexuality was a sin – see the Book of Genesis, King James version, 13:13, 18:20, 19:24 and 19:25 – and a criminal offence… The new wisdom, represented by the defendant, Mair, is that homosexual conduct is not only not a sin (it has ceased to be a crime), but also that no distinction should be drawn in any aspect of society between homosexual and heterosexual relationships. There are reasonable arguments, by which I mean arguments founded in reason, on both sides. Which side is right (if, in such a contention, there is a right side) is a judgment best left to history.

Of course, the issue on appeal then (and now) was not which side is right, but whether “a denigration which the learned judge found to be defamatory, is protected, as the learned judge also found, by the defence of fair comment, a defence which brings into play a clash between the right of a citizen to his or her reputation and the right of free speech.”

Lake v. U.S.

The next case to be heard is Talib Steven Lake v. United States, a case coming out of Ontario. In 1997, Mr. Lake sold 99 grams of crack cocaine to an undercover Ontario Provincial Police Officer in Detroit. He was charged in Ontario with conspiracy to traffic, but was never charged with trafficking. He received a three year sentence. He was also indicted in a US court on a charge for which he faces a minimum sentence of 10 years without parole. At the time, he was a Canadian citizen and living in Windsor, so the United States sought his extradition.

Mr. Lake applied for judicial review of the Minister’s surrender order on the grounds that the Minister had not given adequate reasons for holding that the surrender order would not infringe Mr. Lake’s s. 6 Charter rights; that the Minister had not properly conducted the required assessment to determine whether his s. 6 rights would be infringed; and that the punishment he faced was so disproportionate as to breach s. 7 of the Charter and s. 44(1) of the Extradition Act, SC 1999, c 18.

The Court of Appeal found against Mr. Lake on each of these grounds: the Minister’s reasons were brief but adequate, the assessment had been properly conducted, and the OCA was not in the position to “put United States sentencing policy on trial.”

R v Tele-Mobile Company

In another Ontario case, R v Tele-Mobile Company (Telus Mobility), the SCC will be asked to rule on two orders made under s. 487.012 of the Criminal Code, RSC 1985, c C-46, requiring Telus to produce documents and data requested by the Ontario Provincial Police for investigations. Telus had objected to the orders because of the cost of complying and had requested an exemption or reasonable compensation. Their position is that forcing law enforcement agencies to bear part of the cost of the production orders avoids their indiscriminate use.

The trial judge held that neither a judge issuing a production order nor a judge hearing a motion for an exemption has the power under the statutory scheme to order compensation as a condition of the production order. The judge also noted that in this case it was not “unreasonable” to require compliance with the order (the test for an exemption) – in this case, Telus’ own estimate of annual compliance costs amounted to 0.0087% of Telus Consolidated’s operating revenue. While there may be situations where the cost of compliance would justify an exemption, that point would be reached only in “exceptional cases.” Telus’ argument that an order without compensation violates s. 8 of the Charter was hastily dispatched by the trial judge (see 2006 ONCJ 229).

620 Connaught v Canada

Finally, after the SCC’s recent decision in Kingstreet Investments, the question of fees on alcohol is coming up again in 620 Connaught Ltd v Canada (Attorney General). In this case, the appellants, who operate bars in Jasper National Park are disputing the ability of Parks Canada to charge a business licence fee that is partly calculated as a percentage of purchases. Parks Canada characterize the fee as a charge which funds the operation of the Park; the appellants characterize it as a tax (which Parks Canada had no power to levy). The Federal Court and Federal Court of Appeal both dismissed the application (see 2005 FC 886 and 2006 FCA 252).

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