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This week at the SCC

|Written By Heather Gardiner

The Supreme Court of Canada will hear five wide-ranging appeals this week.

Dec. 4 — British Columbia — Ediger v. Johnston

Torts: Cassidy Alexis Ediger suffered severe permanent brain damage during her birth after Dr. William Johnston attempted a rotational mid-level forceps procedure to assist the delivery. It failed. Ediger’s

heart slowed in a bradycardia and deprived her of oxygen until she was delivered by Caesarean section and resuscitated 18 minutes later. The trial judge found that Johnston breached the standard of care in attempting a rotational mid-forceps delivery without first checking to see if there was backup available for a C-section. The judge also concluded that the doctor didn’t have the mother’s informed consent to the forceps procedure before delivery. The Court of Appeal allowed Johnston’s appeal and dismissed Ediger’s action. Several questions are being raised in relation to the finding of liability on the issue of causation.

Dec. 5 — Quebec — R. v. Manning

Criminal law: Alphide Manning pleaded guilty to two counts of operating a motor vehicle with a blood alcohol level over the legal limit. He had similar prior convictions. He was sentenced to 17 months in jail and banned from driving for five years. The Crown applied for the forfeiture of Manning’s vehicle because it was considered offence-related property under the Criminal Code. The Court of Quebec dismissed the Crown’s motion, noting that Manning was unemployed and living on social assistance, and the vehicle was his only property, which he was dependent on. The Court of Appeal dismissed the Crown’s appeal, finding that the judge had not erred in law. In question are the factors a court can consider in deciding not to order the forfeiture of offence-related property.

Dec. 6 — Manitoba — R. v. O’Brien

Criminal law: While in jail, Kelly Joseph O’Brien threatened to kill his girlfriend if she aborted their child. Staff at the jail complained and the girlfriend was called to testify. She said O’Brien’s threat didn’t scare her; he was just being loud and belligerent with her. O’Brien was acquitted on two counts of uttering threats and two counts of breach of probation. The majority of the Court of Appeal dismissed the Crown’s appeal. At issue is whether the appeal court erred in assessing the mens rea requirement for the offence of uttering threats and in finding that the evidence of the complainant was the determinative factor.

Dec. 6 — Ontario — R. v. Sanichar

Criminal law: Harry Persaud Sanichar was convicted of rape, indecent assault, buggery, gross indecency, sexual assault, assault, and assault with a weapon in relation to the physical and sexual abuse of his stepdaughter, which allegedly occurred over several years when she was a child. She was in her mid-30s when she testified against him. The majority of the Court of Appeal allowed Sanichar’s appeal and ordered a new trial on the basis that the trial judge failed to conduct a proper inquiry into the reliability of the stepdaughter’s testimony and apply the principles of reasonable doubt to aspects of the evidence that could have been in Sanichar’s favour. The court is being asked to assess the trial judge’s behaviour.

Dec. 7 — New Brunswick — Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd.

Labour law: Irving implemented a new workplace policy in its paper mill that included random alcohol testing for employees with safety-sensitive positions. An employee was tested and found to have a blood alcohol level of zero. Nevertheless, the union filed a grievance challenging the reasonableness of the policy. The arbitration board found that Irving failed to demonstrate that the mill posed a sufficient risk of harm that outweighs an employee’s right to privacy. Specifically, the board concluded that Irving didn’t cite enough evidence of prior incidents of alcohol-impaired work performance to justify the policy, and that although the mill was considered “a dangerous work environment,” it wasn’t deemed “ultra dangerous.” The Court of Queen’s Bench allowed the application for judicial review and quashed the board’s decision, ruling it was unreasonable to require evidence demonstrating a history of alcohol abuse in the workplace once the board deemed the mill a dangerous workplace. The Court of Appeal dismissed the union’s appeal.


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