This week at the SCC

The Supreme Court of Canada will hear six appeals this week, including two high-profile cases concerning the constitutionality of the court martial system.

The Supreme Court of Canada will hear six appeals this week, including two high-profile cases concerning the constitutionality of the court martial system. At the end of the week, the Court will hear arguments about whether Teranet Inc., the Province of Ontario’s electronic land registry system, infringed the copyright of land surveyors by publishing their plans of survey on Teranet’s website.

March 25 – Quebec – R. v. Poulin

Criminal law: Rosaire Poulin was convicted in 2016 of three counts of gross indecency and sexual assault committed against his nephew between 1979 and 1987, when his nephew was between the ages of seven and 15. The issue is whether a conditional sentence is available as a punishment even though it was not available either at the time of the offence or at the time of sentencing but only transitionally between those two times. The Court of Québec found that, under s. 11(i) of the Charter, an accused has the right to the benefit of the lesser punishment in force between the commission of the offence and sentencing. R.P. was given a conditional sentence of two years less a day on the counts of gross indecency.

Related news story:
Un agresseur sexuel évite la prison; TVA Nouvelles

March 26 – Federal – Stillman, et al. v. R.

Canadian charter (Criminal): In R. v. Moriarity, [2015] 3 SCR 485, a constitutional challenge based on s. 7 of the Charter to s. 130(1)(a) of the National Defence Act was dismissed. The Supreme Court left open the question of whether s. 130(1)(a) violates s. 11(f) of the Charter (which protects the right to a jury trial for anyone charged with an offence where the punishment would be five years or more imprisonment “except in the case of an offence under military law tried before a military tribunal”).

Following the decision in Moriarity, a constitutional challenge against s. 130(1)(a) was brought by in the Court Martial Appeal Court specifically on the basis that it violated s. 11(f) of the Charter. The Court Martial Appeal Court rejected the challenge: R. v. Royes, 2016 CMAC 1. Leave to appeal was denied. The Court Martial Appeal Court concluded it was bound by its decision in Royes and dismissed the appellants’ constitutional challenges. After the Supreme Court granted leave to appeal, the Court Martial Appeal Court declared the provision to be of no force and effect: R. v. Beaudry, 2018 CMAC 4.

Read the appellate court decision here.

Related new stories:
Supreme Court to hear case on constitutionality of court-martial system; The Globe and Mail

High court to hear military justice appeal; The Canadian Press

March 26 – Federal – R. v. Beaudry

Canadian charter (Criminal): In 2016, the respondent, Corporal R. P. Beaudry of the Canadian Armed Forces, was convicted of sexual assault causing bodily harm by a Standing Court Martial. Section 130 of the National Defence Act provides that Criminal Code offences are service offences that can be tried in the military justice system. Beaudry had asked for a trial before judge and jury, but this was denied. On appeal, Beaudry argued that s. 130 violated his rights to a jury trial protected by s. 11(f) of the Charter. His appeal was allowed. The court declared paragraph 130(1)(a) of the National Defence Act, R.S.C. 1985, c. N-5 to be of no force or effect in its application to any civil offence for which the maximum sentence is five years or more. Bell C.J., dissenting, would have upheld the constitutionality of the provision.

Read the appellate court decision here.

Related new stories:
Military withdraws sex assault charges, including one against senior officer, because of court ruling; National Post

Dunne: Canadian military justice system shaken to its core; The Chronicle Herald

Court drops bomb by ruling against constitutionality of military justice system; CBC News

March 27 – Nova Scotia – R. v. Kelsie

In 2000, a man was fatally shot, and a group of Hells Angels drug dealers was found to have planned the murder. The respondent was a Hells Angels member who had only joined the conspiracy at the last minute. Moments before the shooting, he was told that he was to be the shooter and was handed a gun. He later told police that he thought the shooting was meant to only teach the victim a lesson. Kelsie and another man went to confront the victim, and Kelsie later claimed the other man took the gun and fatally shot the victim, then gave the gun back to him. The Crown argued at trial that Kelsie was the shooter or aided the other man in murdering the victim. A jury convicted Kelsie of first-degree murder and conspiracy to commit murder. The Court of Appeal found errors in the jury charge, overturned the conviction and ordered a new trial.

Read the appellate court decision here.

Related news stories:
Supreme Court of Canada asked to hear Hells Angels hitman case; CBC News

Judge stays first-degree murder charge in 17-year-old Hells Angels killing; The Guardian

March 28 – Ontario – Resolute FP Canada et al v. R.

Environmental law: This case concerns indemnification of pulp-and-paper companies against the performance of remedial work where environmental degradation has occurred. In 1977, Grassy Narrows First Nations bands sued pulp-and-paper companies for damages resulting from mercury waste contamination of a river. The litigation was settled in 1985, and the companies paid $11.75 million to the affected First Nations bands and released Ontario in respect of two previous indemnities. Ontario then promised to indemnify the companies against claims and proceedings arising from “any damage, loss, event or circumstances, caused or alleged to be caused by or with respect to . . . the discharge or escape or presence of any pollutant by Reed or its predecessors . . ."

In 2011, the Ontario Ministry of the Environment issued a Director’s Order requiring prior owners to perform remedial work on the waste disposal site. On appeal of the motion judge’s decision, the Court of Appeal granted Ontario summary judgment against one company, and for the other it substituted a declaration that a predecessor company had assigned the full benefit of the 1985 Indemnity to one of the appellants.

Read the appellate court decision here.

Related law firm bulletin:
"Direct" Indemnity Clauses – Supreme Court Of Canada Grants Leave In Resolute FP Canada Inc. v. Her Majesty The Queen; McLennan Ross LLP

Related news story:
Supreme Court to decide limits of pollution liability indemnification; Canadian Underwriter

March 29 – Ontario – Keatley Surveying Ltd. v. Teranet Inc.

Intellectual property law, copyright infringement: The respondent manages the Province of Ontario’s electronic land registry system (the “ELRS”). Documents that were prepared by land surveyors such as drawings, maps, charts and plans are registered in the ELRS, which the public can obtain online through the respondent for a fee prescribed by statute. The appellant is the representative plaintiff in a certified class action brought on behalf of approximately 350 land surveyors whose plans of survey were scanned and copied into the respondent’s digital database and made available online. The appellant claims that the respondent is in breach of copyright by reaping substantial profits at the expense of surveyors. The Ontario Superior Court of Justice dismissed the appellant’s motion for summary judgment and the class action, finding that as a result of the legislative regime requiring registration or deposit of the plans of survey in the land registry office, ownership in the property of the plans of survey, including copyright, is transferred to the province, and are then “published by or under the direction or control of Her Majesty” pursuant to s. 12 of the Copyright Act. The Ontario Court of Appeal dismissed the appeal.

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