Federal Court of Appeal tackles tax, pension, employment insurance, trademark matters
This week, criminal law cases before the Supreme Court of Canada dealt with mental health evidence, the open court principle in s. 2(b) of the Canadian Charter of Rights and Freedoms, and s. 25 of the Criminal Code.
Supreme Court of Canada
On Monday, the court heard Andrei Bykovets v. His Majesty the King, 40269. The appellant was convicted of 13 of 33 offences relating to possessing and using the credit cards and personal identification documents of third parties and firearms.
The trial judge found no violation of the appellant’s rights under s. 8 of the Charter. The Alberta Court of Appeal’s majority agreed with her analysis and dismissed the appeal. On appeal, an issue was whether a reasonable expectation of privacy attached to an internet protocol (IP) address.
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On Tuesday and Wednesday, the court heard Canadian Broadcasting Corporation, et al. v. His Majesty the King, et al., 40371. The Quebec Court of Appeal allowed the accused’s conviction appeal and stayed criminal proceedings against a police informer. It issued a redacted version of its reasons a month after delivering the original. It ordered the sealing of the original judgment and all information in its record.
The proceedings’ details were unknown to the public. Certain media companies moved to lift wholly or partly the confidentiality orders relating to the appeal and trial records. Quebec’s attorney general moved to vary the sealing order for the appeal record. The appellate court dismissed these motions.
On appeal, an issue was whether the trial court could proceed outside the justice system without putting together a record or without revealing the existence of the court proceedings, which allegedly went against the open court principle.
On Thursday, the court heard Trevor Ian James Lindsay v. His Majesty the King, 40569. The appellant, a police constable, was charged with aggravated assault after an altercation left serious injuries on an arrestee. The provision protected peace officers from liability relating to their lawful use of force.
A trial judge found that s. 25 of the Criminal Code did not protect the appellant from criminal liability. The Alberta Court of Appeal’s majority agreed. On appeal, an issue was whether the majority wrongly upheld the judge’s decision that s. 25 did not protect him
On Friday, the court heard Derrick Michael Lawlor v. His Majesty the King, 40500. The appellant, who had mental health difficulties, made statements that he sometimes carried a rope and a knife to harm and to kill gay men.
The appellant consumed alcohol and psychiatric medication and had a sexual encounter with two men in a park. Hours later, one of the men was found dead in the park due to external neck compression. Days after the incident, the appellant searched online for news about the discovery of a body in the park.
A jury found the appellant guilty of first-degree murder. The Ontario Court of Appeal’s majority dismissed his appeal and found the trial judge’s jury instructions appropriate. On appeal, an issue was whether the majority wrongly ruled that the judge made no errors in not relating the mental health evidence to the intent required for murder.
Federal Court of Appeal
On Monday, the court heard Procon Mining & Tunnelling Ltd. v. His Majesty the King, A-157-22. The appellant challenged the dismissal of an appeal from an income tax reassessment for the 2013 taxation year.
Also on Monday, the court heard Dawn Pentesco v. Tracey Fraser et al., A-139-22. The applicant, who questioned a decision by the Social Security Tribunal’s appeal division, alleged an entitlement to survivor’s pension under ss. 42(1) and 44(1)(d) of the Canada Pension Plan, 1985.
On Tuesday, the court heard Nikolay Zhelkov v. Attorney General of Canada, A-125-23. The applicant, who was allegedly terminated without cause, challenged a decision by the Social Security Tribunal’s appeal division. The applicant wanted employment insurance benefits, which was denied based on misconduct relating to a COVID-19 vaccination policy.
Also on Tuesday, the court heard the cases of BNSF Railway Co v. Greater Vancouver Sewerage and Drainage District et al., A-104-23, and BNSF Railway Company v. Greater Vancouver Water District et al, A-255-22. These appeals sought to quash or to set aside a decision of the Canadian Transportation Agency, which allegedly committed a legal error and/or a jurisdictional error.
Again on Tuesday, the court heard Sheldon M. Chumir Foundation for Ethics in Leadership v. Minister of National Revenue, A-169-22. An application sought to postpone the publication in the Canada Gazette of a notice of revocation of the applicant’s charitable registration until the full exercise of its rights of objection and appeal under the Income Tax Act, 1985.
On Wednesday, the court heard Michael Philippus Brink et al. v. His Majesty the King, A-178-22. The appellants questioned the dismissal of their motion to certify a class action. The Federal Court allegedly wrongly found that not being born in Canada was not a protected or analogous ground under s.15(1) of the Charter.
Also on Wednesday, the court heard CWI, LLC (formerly CWI, Inc.) v. G N R Travel Centre Ltd., A-26-23. This involved an appeal under s. 27 of the Trademarks Act, 1985.
On Thursday, the court heard Michaels of Canada, ULC v. Attorney General of Canada, A-264-22. This was an appeal from an order granting a motion to strike a judicial review application in the context of a trade compliance verification final report requiring the self-assessment of additional duties and taxes on previously imported goods under s. 32.2 of the Customs Act, 1985.
Also on Thursday, the court heard Salt River First Nation #195 v. Chief Shane Gottfriedson et al, A-62-23, which related to the residential school system’s effects. The judge allegedly failed to apply the correct legal standards for deciding whether a putative class member who missed a deadline to opt in or to submit a claim should nonetheless be allowed to join the class.