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November 25, 2021 | Issue 68

Today at the SCC: 5 Leaves 


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Leave Applications: 5 Dismissed

Dismissed

Civil Litigation: Malicious Prosecution/Intimidation

Davidoff v. Paderewski Society Home (Niagara), 2021 ONCA 194 (39748)
Following an action in which the Applicant, Mr. Davidoff, was found to be liable for damages for defamation to the Respondent, Paderewski Society Home (Niagara), he and the Applicant, Ms. Davidoff, brought two actions for malicious prosecution and intimidation against the Respondents. The Respondents moved to strike those actions on the grounds, inter alia, that they disclosed no reasonable cause of action. The application judge granted the motions, striking the actions without leave to amend. The Applicants’ appeal was dismissed. "The application for leave to appeal...is dismissed without costs."
 

Criminal Law: Causing MVA While DUI

Pawson v. R., 2021 BCCA 22 (39697)
The Applicant lost control of his vehicle, and hit someone. Both lower courts held the presumption of identity applies in transitional cases. The Applicant was convicted of causing an accident resulting in bodily harm while operating a motor vehicle with a blood alcohol level over .08. The conviction appeal was dismissed. "The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal...is dismissed."
 

Criminal Law: Possession For The Purposes

Colegrove v. R., 2020 QCCA 842 (39764)
Following a police investigation, the Applicant was arrested for possession of narcotics for the purposes. A jury found him guilty on this count, and the Québec Superior Court sentenced him to imprisonment for 9 years, 1 month and 25 days. The Applicant appealed the sentence. He argued the trial judge had neither explicitly mentioned nor taken account of four Charter breaches that had been identified at the time of sentencing. The Qué. C.A. was of the view the trial judge’s conclusion the constitutional violations were not serious enough to fall into the category of “mitigating circumstances” was reasonable and consistent with the standards in this regard that had been developed in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. The Qué. C.A. dismissed the appeal. "The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal...is dismissed."
 

Municipal Law: Disciplinary Complaint Fees

Ville de Longueuil v. Benedetti, 2021 QCCA 846 (39756)
Mr. Benedetti applied for a declaratory judgment forcing Ville de Longueuil to assume the costs of his defence in accordance with s. 604.6 of the Cities and Towns Act in relation to a complaint lodged against him by the Ordre des ingénieurs du Québec. The Superior Court dismissed the application for a declaratory judgment. Mr. Benedetti applied to the Qué. C.A. for authorization to present, as new evidence, the decision of the Ordre’s disciplinary council dismissing the charges brought by the Syndic. The Qué. C.A. allowed the appeal and the motion for authorization to present new evidence. It set aside the trial judge’s decision and granted the application for a declaratory judgment noting the obligation of Ville de Longueuil to assume Mr. Benedetti’s costs of representation incurred in relation to the disciplinary complaint. "The application for leave to appeal...is dismissed with costs."
 

Criminal Law: Private Prosecutions

P.C. v. Ontario (Attorney General), 2020 ONCA 652 (39805)
The Applicant was a private informant who laid an information before a Justice of the Peace, alleging the Ontario Provincial Police (“OPP”) and some of its members committed several indictable offences against his wife, who is a member of that police force. A month after the private information was laid, the Applicant appeared before a Justice of the Peace who conducted a hearing (pre‑enquete) to determine whether a process should be issued to compel the attendance of the OPP and the named officers to attend and answer to the charges. The Justice of the Peace declined to issue process on six of the alleged offences but ordered the issuance of process on one charge. The Crown counsel at that hearing stayed the final charge. The Applicant applied to the Superior Court of Justice, seeking orders in lieu of mandamus and certiorari to compel the issuance of process and to quash the stay entered by the Crown.  This application was dismissed.  The Applicant’s appeal from that decision was then dismissed. "The application for leave to appeal...is dismissed."

Appellate Extras

Featured Court of Appeal Decision

We also track what’s happening in the appellate world before it gets to Canada’s highest court. Below is this week’s featured Court of Appeal decision from our Appellate Monthly newsletter.

Elections: Political Advertisement; “Closed Mind” Test

Case: Rebel News Network Ltd v Alberta (Election Commissioner), 2021 ABCA 376 (CanLII)

Key Words: political advertising; Election Finances and Contributions Disclosure Act, RSA 2000, c E-2; “closed mind” test

Read our summary here

Upcoming SCC Hearings

For a full list of upcoming Supreme Court of Canada hearings and a quick look at what they’re about, check out our annotated appeal schedule

Follow-up

Re: Remembrance Day

"Hello Eugene,
 
The Remembrance Day reference reminded me of an old family story:
 
You may recall that my dad is Glaswegian (Cambuslang, to be precise). His mother’s sister’s family lived in Kircudbright (I’ll buy lunch for the first non-Scot on your mailing list who can pronounce that correctly).

Her name was Winnie. She and my grandmother, Isobel, were both very proper ladies (e.g. “hysterectomy” was a vulgar word – one had a “feminine procedure”). Winnie’s husband served in the Royal Navy during WWII and was killed when a German U-Boat sank his vessel. Aunt Winnie was a widow and did not remarry for a number of years. Her son, Derek (after whom my brother is named) became very close with my dad in those years and still is. Anyway, Derek needed significant dental work at one point. Aunt Winnie, knowing that she would not be able to afford to cover the dentist’s bill, feared its arrival. Some time passed and Aunt Winnie became increasingly anxious. She was worried that she had missed the bill and that word would get around in a small town that she did not pay her bills when due, so she went to the dentist’s office looking for the bill and to plead for time to pay. The response she got was to the effect of “Madam, this office does not issue bills to sons of men like his father.”
 
This is a good reminder in a time when so many focus on their rights instead of their responsibilities to others.
 
Best."

Thank you: Michael McCubbin (McCubbin McGarvey, Courtenay, BC), mm@mcmc.law.

Last Word

Dog Sledding

Depending on evening workflow (mainly whether a draft factum is promised to a client for first thing next morning), I listen to an NPR (National Public Radio) podcast called Fresh Air. Generally hosted by remarkably talented (female) interviewer Terry Gross; she intuitively knows when to hang back and let the guest talk, or when to jump in with a new question going in a related-but-new direction. The interview below is by alternate host Dave Davies (also very good).

Blair Braverman is a writer, guide, adventurist and dog sledder; often with her husband Quince Mountain. She ran dogs for fun, then was invited to run in races, eventually The Iditarod in 2019 (her husband ran it in 2020): Anchorage to Nome (975-998 miles depending on route); over tough landscape; river crossings; often highly inclement weather; you and 14 dogs; 8-15 days; and some steep downhill—listen to Blair’s description of going down (more like going over) the “Happy River Steps” (go to the NPR hyperlink below; listen to podcast [click top right]; it’s at 21:50).

Some takeaways (the first one, obvious, but key):
  • don’t let go the sled
  • don’t ask a musher how many dogs they have
  • two main types: Siberian and Alaskan
  • her lead dog Pepe (also female) “very rarely disagrees with me, but when she does, she’s correct”
  • the dogs get calmer and stronger during the race; “throwing a metabolic switch”
  • these dogs are smart—they will prank each other
  • and, they can eat 3 pounds of meat in one go.
Criticism of the Iditarod and dog-sledding? Yes, she deals with this:
  • “If someone is not treating their animals humanely, there should be no space for them in this sport at all. Something I feel very, very strongly about. There is no space for that.”
  • “I have seen more pet dogs whose welfare I’ve been worried about than sled dogs. But of course, I’m not going to say it doesn’t happen”
Here’s the NPR hyperlink (article and podcast): click here.

Here’s an Outside magazine article on her run, Blair Braverman on the Iditarod, Fear, and Resilience: click here.

And here’s a dog-sled trip I took from Yellowknife in the late 1990’s with John Bayly, Q.C. (R.I.P.), John Donihee, Sheila MacPherson, Q.C., Terry Woolf, and Patrick Arbour. Click here. Ran my own sled and team (7 dogs). Iditarod is double that, 14.

Go to the Caribbean this winter? Sure, might. But definitely also going sledding. Trying to see if I can find Ms. Braverman (or her husband) and go tripping with them. They live in northern Wisconsin now. If you know how to contact them, please advise.

And if you’ve gotten to reading this far, and would like a copy of her book (I’ve ordered two, one for me, one for you), first person to email me (OK, first three people to email me [I’ll order two more], gets a copy of the book).

Book is called Dogs on the Trail, written with her husband, and “focuses less on great racing photos, than on what it takes to keep the dogs healthy, happy and working together”. They have 24.

Here’s what the book looks like (in case you want to order, if not the first three to email): click here.

And last, what she recommends for “extreme cold” (I cycle all winter, but sledding in windy arctic conditions calls for more layers, and more specialized garments): click here.

And very last, speaking of layers, one of my staff colleagues (the one I do this newsletter with) has been using her no-commute Covid-time to start a small cottage business—making/selling beanies (ie. hats). She calls her “side-hustle” Lamb + Loom (good name—her family name is Lamb). Check out @lambandloom on Instagram if you’re interested. I confess, I only found out when she gave me one for my (first) grand-child Évelyne, born 3 weeks ago.

Here are some examples of some hats she has made, click here, here and here. (I ordered a medium-size green one for me). First one to email me (use the re line “please send me a Lamb+Loom beanie”) and she’ll make and send you one too (maybe not extreme-cold dog-sledding warm, but still warm and very cozy).

About Supreme Advocacy LLP

We're a boutique law firm specializing in:

  • SCC advocacy and agency
  • ghostwriting factums at all appellate levels
  • preparing complex legal opinions and legal research

Our team of lawyers consists of:

  • Eugene Meehan, Q.C., former Executive Legal Officer at the SCC, Masters and Doctorate in Civil Law from McGill University, Queen's Counsel.
  • Marie-France Major, former SCC law clerk, Masters from Oxford University, and Doctorate in law from UC Berkeley.
  • Tom Slade, former Editor-in-Chief of the Ottawa Law Review, journalism degree from Carleton University, and law degree from University of Ottawa.
  • Cory Giordano, Bachelor of Arts (Honours) degree from Queen’s University and Juris Doctor from University of Ottawa.
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End Notes

We welcome your questions and comments. Please email me your suggestions for the Last Word. Sources acknowledged, of course.

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Eugene
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