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This week at the SCC

|Written By Elizabeth Raymer

This week at the SCC

The Supreme Court of Canada will hear five appeals this week, including three criminal cases involving driving “over 80” and production of evidence; an unjust enrichment claim; and an appeal in a sexual assault case in which the Court of Appeal of Alberta had found that a trial judge had erred by relying on a stereotype about the behaviour of sexual assault victims.

Feb. 6 – Alberta – Gubbins v. R.

Criminal law: When the applicant was detained in 2014, samples of his breath were analyzed and he was charged with driving “over 80.” Gubbins then demanded the maintenance records for the approved instrument since it had first been put into use. The Crown took the view that these records were held by the third party contractor that maintained the equipment, and that the requested records were irrelevant to making full answer and defence. The trial judge concluded that she was bound by R. v Kilpatrick and that the records were subject to first-party Stinchcombe disclosure, and entered a stay. The Court of Appeal allowed the Crown’s further appeal, lifted the stay and sent the matter for trial.

Read the Alberta appellate court decision here.

Related legal brief:
Crown not required to disclose approved instrument (Intoxilyzer) maintenance records to defence, CanLII Connects (Damian Rogers)

Feb. 6 – Alberta – Vallentgoed v. R.

Criminal law: Companion case to the above. When the applicant was detained in 2013, samples of his breath were analyzed and he was charged with driving “over 80.” Vallentgoed requested detailed records of maintenance and annual inspections for the instruments, which the Crown produced, showing that the machine had been sent out for repair the day after Vallentgoed was charged, and twice more in the four months before that. The defence requested detailed reports of the work performed on those dates, but the Crown took the position that the rest of the maintenance records were third-party records and irrelevant. The trial judge found that since the additional records were not “the fruits of” Vallentgoed’s prosecution, and were not relevant, they were not subject to first-party Stinchcombe disclosure. Vallentgoed was convicted, his summary conviction appeal was allowed. The Court of Appeal then allowed the Crown’s appeal and restored Vallentgoed’s conviction.

Read the Alberta appellate court decision here.

Related news story:
Can motorists raise doubts about accuracy of a breathalyzer test? Canadian Underwriter

February 7 – Quebec – R. v. Awashish

Criminal law: Justine Awashish was charged with operating a vehicle with a blood alcohol level over the legal limit. She filed a motion for disclosure accompanied by a McNeil motion, and sought an order requiring the Crown to tell her whether the information whose disclosure she was requesting existed and, if so, to tell her the identity of the persons holding that information. The Court of Québec allowed Awashish’s application. The Crown filed a motion for certiorari, which was allowed by the Superior Court. The Court of Appeal allowed the appeal.

Read the Quebec appellate court decision here.

Related legal brief:
Dossier Justine Awashish: Me Fradette en Cour supreme; le Quotidien

Feb. 8 – Ontario – Moore v. Sweet

Civil law: At issue in this application is entitlement to the proceeds of a $250,000 term life insurance policy obtained by M in 1985. At the time it was issued, the applicant and M were married with three children, and the applicant was named M’s beneficiary. The applicant and M separated in 1999 and were divorced in 2003. In 2000 M moved in with the respondent, with whom he lived until his death in 2013; also in 2000, M executed a change of beneficiary form, designating the respondent as his irrevocable beneficiary under the Policy. In 2002 the applicant and M entered into a separation agreement, which was silent with respect to the Policy.

Until 2000, the Policy’s annual premium was paid out of a bank account jointly held by the applicant and M. From 2000 until M’s death, the applicant paid the premium from her own account, and was not made aware of the change of beneficiary. Upon M’s death the applicant applied to the court, claiming unjust enrichment and arguing that she and M had agreed that if she paid the premiums she would be entitled to receive the benefit of the Policy as a way of M providing support for their children. The Ontario Superior Court of Justice granted the application, holding that the proceeds were impressed with a constructive trust in favour of the applicant. The Court of Appeal for Ontario allowed the appeal, and held that while the applicant was entitled to be repaid her premiums, the respondent was to receive the balance of the proceeds. Lauwers J.A., dissenting, would have dismissed the appeal.

Read the Ontario appellate court decision here.

Related news story:
Court of Appeal rules on unjust enrichment; Law Times

Related law firm bulletin:
Whether A Constructive Trust Should Be Imposed Because Of Unjust Enrichment; McCague Borlack

Feb. 9 – Alberta – A.R. J.D. v. R.

Criminal law: The appellant was acquitted at trial of three sexual offences alleged to have been committed against his stepdaughter. The Crown appealed the acquittals. The majority in the Court of Appeal allowed the appeal, set aside the acquittals and ordered a new trial. It was of the view that the trial judge erred by relying on an impermissible stereotype, or myth, about the behaviour of sexual assault victims in assessing the complainant’s credibility and acquitting the appellant. Slatter J.A., dissenting, would have dismissed the appeal. In his opinion, the Crown had not shown that the trial judge made the asserted error.




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