Hearings scheduled for this week

As I mentioned last Monday, the Supreme Court of Canada (“SCC”) is starting its spring session this week with a full docket. Last week I outlined the cases they’ll be hearing on Tuesday and Wednesday. They also have hearings scheduled for both Thursday and Friday.

Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, arises from a motion by the appellants to dismiss the respondents’ statement of claim as disclosing no reasonable cause of action.

The respondents are the family of a child taken under the care of the Halton Children’s Aid Society (“CAS”). They allege that as a result of negligence (on the part of the CAS, the Syl Apps Secure Treatment Centre, a social worker employed by the Centre, and two psychiatrists employed by the centre), the child was not reintegrated into the family (the child is now of legal age and is not part of the action).

The Centre and its employees brought a motion to dismiss the statement of claim. That motion was granted.

Two judges of the Ontario Court of Appeal overturned the decision, arguing that it was not plain and obvious that the family’s claim could not succeed. Justice Sharpe, in dissent, argued that the fact that the Centre and its employees owe a primary and paramount duty of care to the child in need of protection is incompatible with imposing on them a duty of care towards the parents (from whose care the child had been removed for his or her own safety).

The family’s action against the CAS is not affected by these proceedings.

On Friday, the SCC will hear the case of R. v. Steele, 2007 SCC 36. The charges here arose from a break-and-enter carried out by the appellant and three accomplices in 2003. The perpetrators were stopped by police shortly after the break-in, driving away from the scene in a car in which were found a variety of weapons including a loaded 9-millimetre pistol. The occupants of the house testified that the intruders had mentioned having a gun, but were unable to testify that they had actually seen a gun.

The four suspects were all convicted of the break and enter. The appellant was also convicted under s. 85(1)(a) of the Criminal Code, RSC 1985, c C-46, which specifies that “every person commits an offence who uses a firearm while committing an indictable offence.” The evidence presented at trial could equally lead to two reasonable inferences: either one of the suspects was actually carrying the loaded gun during the break-in, or it remained in the car the whole time. The trial judge and the BC Court of Appeal were therefore asked to determine whether the presence of a loaded gun in the suspects’ car was enough to meet the test set out in the section.

In upholding the decision at trial, the Court of Appeal unanimously held that whether or not the gun was actually carried by one of the accused, the “calculated reference to the gun along with its nearby presence constituted the use of a handgun while attempting to commit an offence.” They specified, however, that one of these factors would not be enough, but that to convict in similar circumstances there will both have to be a weapon available nearby and a threat made to use it.