R. v. Oakes Roncarelli v. Duplessis Murdoch v. Murdoch

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1 R. v. Oakes, [1986] 1 S.C.R. 103 In 1982, David Oakes was charged with trafficking in narcotics under section 8 of the Narcotic Control Act (now the Controlled Drugs and Substances Act). It was the Crown's job to prove that Oakes had the drugs in his possession. Once this was done, the Act said that it was up to the defendant to prove that the drugs were not possessed for the purposes of trafficking. This is called a "reverse-onus" clause. Oakes argued, successfully, that the requirement that he prove that he did not possess the drugs for the purposes of trafficking violated his rights under section 11(d) of the Charter -- the right to be presumed innocent until proven guilty. In its ruling, the Supreme Court of Canada set out a test to determine how to assess whether a violation of Charter rights is a "reasonable limit" under s.1 of the Canadian Charter of Rights and Freedoms. Roncarelli v. Duplessis, [1959] S.C.R. 121 In the mid 1950s, religious tension arose in Quebec between Jehovah's Witnesses, who were spreading their beliefs by distributing their publication, and Roman Catholics. In an attempt to stop what it considered an insult to the Catholic population, the government of Quebec arrested almost 1000 Jehovah's Witnesses for selling their publication without a licence. Frank Roncarelli, a restaurateur and a Jehovah's Witness, provided bail for almost 400 of those arrested. In response, Quebec premier Maurice Duplessis ordered the Liquor Commission to cancel Roncarelli's liquor licence, which the restaurant had held for 34 years. Roncarelli sued Duplessis for loss of business and income resulting from cancellation of the licence. The Supreme Court of Canada found in favour of Roncarelli and increased the damage amount awarded by the trial judge by $25,000. This action was effectively judicial review of an administrative decision, finding that Duplessis violated the rule of law with his "gross abuse of legal power". Murdoch v. Murdoch, [1975] S.C.R. 121 The Murdochs had been married for 25 years. During their marriage, they worked hard and acquired several cattle ranches. All property was registered in the husband's name. Mr. Murdoch also worked outside the ranches and was often away for long periods of time. During her husband's absences, Mrs. Murdoch continued to work the ranches and maintained the home. When they divorced, she asked for a half share of the properties acquired during the course of the marriage. Her claim was denied at trial and on appeal to the Supreme Court of Alberta. Her appeal to the Supreme Court of Canada was dismissed, with the Court ruling that she was not a partner in the ranches because she had not contributed financially, and the work she did was no more than any farm wife would have done. Without a formal agreement indicating the property was to be held in trust for her, the Court had to rely on the wording of existing legislation, which only recognized financial contributions to family property.

2 Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 Waddah Mustapha saw a dead fly in an unopened bottle of water supplied by the defendant, Culligan. Neither he nor anyone else consumed any of that water, although all members of his family had consumed the defendant's water for the previous 15 years. Mr. Mustapha became obsessed about what he had seen and about the potential implications for his family's health from having possibly consumed impure water in the past. He was diagnosed as suffering from a major depressive disorder, with associated phobia and anxiety, all triggered by seeing the dead fly. At trial in 2005, Brockenshire J., while finding Mr. Mustapha's claim to be "objectively bizarre", awarded him $80,000 in general damages, approximately $25,000 in special damages and $237,600 for past and future economic loss. It was, he held, "clearly foreseeable" that the supply of water with dead flies would cause him and others like him to suffer some degree of nervous shock. Culligan appealed, successfully, to the Court of Appeal, which defined the issue as "whether a defendant may be liable for damages for psychiatric harm where the harm, by any objective measurement, consists of an exaggerated reaction by an obsessive person of particular sensibilities to what, in reality, is a relatively minor or trivial incident - the sight of a dead fly in a bottle of consumer water." The Court of Appeal answered this question in the negative. Mr. Mustapha sought and obtained leave to appeal to the Supreme Court of Canada. In a unanimous decision, the Supreme Court decided that Mr. Mustapha's injury was not reasonably foreseeable and failed on the question of remoteness. The Court indicated that, to qualify for compensation, the injury "must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if reluctantly, accept." R. v. Clark, [2005] 1 S.C.R. 6 The accused, Daryl Milland Clark, was observed, uh, pleasuring himself, near the uncovered window of his illuminated living room by neighbours from the privacy of their darkened bedroom, across contiguous back yards, from a distance of 90 to 150 feet. The police were summoned. They observed the accused from just below the navel up from the neighbour s bedroom and from about maybe the neck or the shoulders up from street level. The accused was charged under ss. 173(1)(a) and 173(1)(b) of the Criminal Code. Section 173(1) makes it an offence to wilfully do an indecent act (a) in a public place in the presence of one or more persons, or (b) in any place, with intent thereby to insult or offend any person. The trial judge convicted the accused under s. 173(1)(a) after finding he had converted his living room into a public place, but acquitted him under s. 173(1)(b) after finding that it did not appear the accused knew he was being watched or intended to insult or offend any person. The Appeals Court in British Columbia upheld the conviction, and included a

3 finding of guilt under s. 173(b), concluding that the accused had intentionally conducted himself in an indecent way, seeking to draw the attention of others. The accused appealed his conviction to the Supreme Court of Canada, which, in a stunning display of common sense, vacated his conviction indicating that the accused's living room was not a public place within the meaning of s. 173(a), and that the B.C. Court of Appeal had no business making a decision on the accused's intent (s. 173(b)), unless it could find "palpable error" on the part of the trial judge. And to the neighbours?... take your binoculars and your telescope (seriously) and get a life. Childs v. Desormeaux, [2006] 1 S.C.R. 643 In the early morning hours of January 1, 1999, Zoe Childs was a passenger in a vehicle driven by her friend, Patricia Hadden, when it was struck by a vehicle driven by Desmond Desormeaux. The Desormeaux vehicle crossed the centre line of the road, and the collision killed Zoe's boyfriend, Derek Dupree, and injured the other three occupants. Zoe's spine was severed and she has since been paralyzed from the waist down. Des Desormeaux had a blood alcohol content of.225 at the time of the accident (the legal limit is.08). He pleaded guilty to a number of criminal charges arising out of the accident and received a ten-year sentence. It is relevant to note that he had no assets and no insurance. Zoe Childs started an action for damages against Desormeaux, as well against Julie Zimmerman and Dwight Courrier, who were the hosts of a BYOB party which Desormeaux had attended on New Year's eve and left, drunk, immediately before the accident. At trial, the court concluded that the social hosts owed a duty of care towards Ms. Childs, but determined that this responsibility was negated by the social and policy considerations that would result from finding social hosts liable. The Ontario Court of Appeal dismissed Ms. Childs' appeal, this time finding that there was no duty of care owed by the hosts to Ms. Childs without some active participation in creating the risk. In a unanimous decision, the Supreme Court of Canada dismissed Ms. Childs' final appeal, stating that social hosts of parties where alcohol is served do not owe a duty of care to public users of highways. R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 The accused was charged with dangerous operation of a motor vehicle causing death under s. 249(4) of the Criminal Code. The accident that gave rise to these charges occurred when the accused s pick-up truck, for no apparent reason, suddenly crossed the solid centre line into the path of an oncoming vehicle, killing all three occupants. Witnesses driving behind the victims car observed the accused s vehicle being driven in a proper manner prior to the accident. An expert inspection concluded that the accused s vehicle had not suffered from mechanical failure. Intoxicants were not a

4 factor. The accused stated that he was not sure what happened but that he must have lost consciousness or fallen asleep and collided with the other vehicle. The question that divided the courts below was whether this momentary act of negligence was sufficient to constitute dangerous operation of a motor vehicle causing death within the meaning of s. 249(4). The trial judge concluded that these few seconds of negligent driving could not, without more, support a finding of a marked departure from the standard of care of a reasonably prudent driver. The Court of Appeal set aside the acquittals and ordered a new trial, finding that the accused s conduct of crossing the centre line into the path of oncoming traffic could only be viewed as objectively dangerous and a marked departure from the requisite standard of care. The determining question then became whether there was an explanation for the accused s conduct that would raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused s conduct. The Supreme Court of Canada unanimously determined that a momentary lapse of attention, without more, is not enough to establish either the mens rea or actus reus of the offence of dangerous driving and restored the acquittals of the accused. Lumbermens Mutual Casualty Co. v. Herbison, 2007 SCC 47, [2007] 3 S.C.R. 393 Fred Wolfe, a member of a yearly deer-hunting party, was driving to his designated hunting stand before sunrise when he thought he saw a deer. He got out of his truck, removed his rifle, loaded it, and shot at a flash of white, hitting Harold George Herbison, another member of the hunting party. Wolfe was found liable in negligence to Herbison and his family, but had no assets to satisfy Herbison s judgement. They sought recovery from Wolfe s insurer under a standard motor vehicle liability insurance policy which, as required by s. 239(1) of the Ontario Insurance Act, provides coverage for loss or damage arising from the ownership or directly or indirectly from the use or operation of an automobile owned by the insured. The trial judge dismissed the claim against the insurer, but a majority of the Court of Appeal set aside the decision and found the insurer liable. The Insurer appealed this decision to the Supreme Court of Canada. R. v. Harrison, 2009 SCC 34 A member of the Ontario Provincial Police was on highway patrol when he saw a vehicle approaching from the opposite direction. The officer noticed that the vehicle had no front licence plate, which is required for a car registered in Ontario. Only after turning around to follow the vehicle and activating his roof lights to pull it over did he realize that, because it was registered in Alberta, the vehicle did not require a front plate. The officer pulled the vehicle over anyway, notwithstanding that he had no grounds to believe any offence was being committed, as he believed that abandoning the detention may have affected the integrity of the police in the eyes of observers. During the detention it was determined that the driver was driving while his licence was under suspension, and the officer arrested him. The vehicle was then searched and 35 kilograms of cocaine was found.

5 At trial, the judge found that there were violations of the accused s Charter rights, namely s. 9 arbitrary detention, and s. 8 unreasonable search and seizure. In spite of the violations, the judge determined (under s. 24(2)) that because of the seriousness of the charges, the repute of the administration of justice would suffer more from [the exclusion of the evidence] than from its admission. The accused was convicted and the conviction was upheld by a majority of the Court of Appeal. The Supreme Court of Canada held that the test required under s. 24(2) to determine whether the admission of evidence would bring the administration of justice into disrepute requires the court to look at three details: (1) the seriousness of the conduct that violates the Charter; (2) the impact of the Charter violation on the accused; and (3) society s interest in determining the case on its merits. The Court overturned the conviction and entered an acquittal, determining that if the evidence of the cocaine had been excluded at trial, there would have been no possibility of conviction. Chief Justice McLachlin stated that to appear to condone wilful and flagrant Charter breaches amounting to a significant incursion on the accused s rights does not enhance, but rather undermines, the long-term repute of the administration of justice. Moge v. Moge, [1992] 3 S.C.R. 813 Andrzej and Zofia Moge were married in Poland and moved to Canada in They separated in 1973 and divorced in During most of the marriage, Zofia stayed home to raise their three children and take care of the home. She had little formal education an did not speak English well. Zofia had a part-time job cleaning offices in the evenings, and Andrzej had a full-time job as a welder. Zofia was awarded custody of the children and $150 a month in spousal and child support. After the separation, she continued cleaning offices. At the time, she was making approximately $800 per month; Andrzej was earning approximately $2200 per month. However, in 1987, Zofia lost her job, so her support payments were increased to $400 a month. In 1989, Andrzej had the support payments terminated. The judge who granted his application determined that Zofia had had enough time to become financially independent. However, the Manitoba Court of Appeal reinstated the support payments and ordered Mr. Moge to pay $150 per month in spousal support for an indefinite period. He was given leave to appeal this decision to the Supreme Court of Canada. Mr. Moge lost his appeal. The Supreme Court acknowledged that while spouses have an obligation to support themselves after the breakdown of a marriage, in situations where the dependent spouse is unable to escape his or her dependency, the other spouse is obligated to continue to financially support the dependent spouse.

6 Pickett v. Love, (1982) 20 Sask. R. 115, QB Gordon Pickett, the plaintiff, and Brenda Love, the defendant, entered into a romantic relationship in June They exchanged keys to one another's homes. Their relationship continued until December 31. Love's feelings started to cool in October, and she told Pickett she wanted to be just friends. However, Pickett persisted in his advances. He gave Love presents, including a watch and the offer of a plane ticket to New Orleans. Later, Pickett offered to renovate Love's bathroom. She indicated that she would like this but could not afford to pay him for the work. In February 1982 the renovations were completed. Afterwards, Pickett claimed that Love had agreed to pay him what she could each month until the bill was paid, although he was not sure what that amount was. Love indicated that their friendship was over and that he was to return the key. After discovering that Love was seeing a friend of his, Pickett placed a lien (a registered claim) on Love's property for $759. The court was not certain as to what had been agreed between the parties, but the judge believed that Pickett had done the work in a bid for Love's continued affection (Love's love?) and dismissed the claim. Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 Alberta requires all persons who drive motor vehicles on highways to hold a driver s licence. Since 1974, each licence has borne a photograph of the licence holder, subject to exemptions for people who objected to having their photographs taken on religious grounds. Religious objectors were granted a non-photo licence called a Condition Code G licence, at the Registrar s discretion. In 2003, the Province adopted a new regulation and made the photo requirement universal. The photograph taken at the time of issuance of the licence is placed in the Province s facial recognition data bank. There were about 450 Condition Code G licences in Alberta, 56 percent of which were held by members of Hutterian Brethren colonies. The Wilson Colony of Hutterian Brethren maintains a rural, communal lifestyle, carrying on a variety of commercial activities. They sincerely believe that the Second Commandment prohibits them from having their photograph willingly taken and objected to having their photographs taken on religious grounds. The Province proposed two measures to lessen the impact of the universal photo requirement but, since these measures still required that a photograph be taken for placement in the Province s facial recognition data bank, they were rejected by the members of the Wilson Colony. They proposed instead that no photograph be taken and that non-photo driver s licences be issued to them marked Not to be used for identification purposes. Unable to reach an agreement with the Province, the members of the Wilson Colony challenged the constitutionality of the regulation alleging an unjustifiable breach of their religious freedom. The case proceeded on the basis that the universal photo requirement

7 infringes s. 2(a) of the Canadian Charter of Rights and Freedoms. The claimants led evidence asserting that if members could not obtain driver s licences, the viability of their communal lifestyle would be threatened. The Province, for its part, led evidence that the adoption of the universal photo requirement was connected to a new system aimed at minimizing identity theft associated with driver s licences and that the new facial recognition data bank was aimed at reducing the risk of this type of fraud. Both the chambers judge and the majority of the Court of Appeal held that the infringement of freedom of religion was not justified under s. 1 of the Charter. In an appeal to the Supreme Court of Canada by the Province of Alberta, the decisions of the lower courts were reversed. A majority of the Supreme Court applied the Oakes test and determined that the province established that the licensing requirements are rationally connected to a pressing and substantial goal, minimally impair the right, and are proportionate in their effects. It is therefore a reasonable limit under section 1 of the Charter.