Clément Gascon

The moving party sought an extension of time to serve and file an application for leave to appeal from a Federal Court of Appeal judgment.

The Court granted the extension motion but dismissed the leave application with costs.

The disposition confirms that procedural relief on timing did not result in leave being granted.

This appeal considered whether a municipal notice of reserve that blocked construction at a federally approved antenna site was constitutionally valid.

The majority held the notice’s pith and substance was the siting of radiocommunication infrastructure, an exclusive federal matter, making it ultra vires.

The Court also held the measure significantly impaired the federal core protected by interjurisdictional immunity.

The appeal was allowed and the notice was unconstitutional and inapplicable to the appellant.

In a constitutional challenge to federal tax requirement powers, legal professional secrecy was weighed against the state’s audit and collection objectives.

The court held that compelling production from legal advisers without adequate notice to clients, without judicially supervised safeguards, and with an overbroad accounting-records exception produced unreasonable seizures under s. 8.

The impugned provisions failed minimal impairment and were not justified under s. 1.

The provisions were read down to exclude notaries and lawyers acting as legal advisers, and the accounting-records exception was declared invalid.

The appellant sought to compel disclosure of a lawyer’s accounts receivable records under statutory audit and enforcement powers in federal tax legislation.

The court held that Parliament had clearly intended the statutory definition to exclude a lawyer’s accounting records from solicitor-client privilege as a matter of interpretation.

However, in light of the companion constitutional ruling, the disclosure scheme as applied to legal professionals was invalid, and the request for disclosure could not proceed.

The appeal was allowed only to vary the lower disposition, and the compliance application was dismissed.

In a property and secured-transactions appeal, the Court considered whether municipal heritage incentive payments registered in an agreement by caveat ran with land, passed in a judicial sale, or remained personal property subject to priority rules.

The Court held that s. 29 of Alberta’s Historical Resources Act allows positive covenants to run only where they are in favour of listed public entities, not in favour of a landowner claimant to payment.

The Court further held the agreement and sale documents did not transfer the payment right to the purchaser and that awarding those payments to the purchaser would create a windfall without commercial rationale.

The payment right was characterized as a chose in action assigned as security, with priorities governed by the Personal Property Security Act and any residual priority dispute remitted to a master.

A mortgage appeal addressed whether s. 8 of the Interest Act invalidates a default-triggered charge structure framed as a discounted pay-rate.

The majority held that substance governs over drafting labels and that terms producing a higher effective charge on arrears than on principal not in arrears offend s. 8.

The Court also held that a rate increase triggered solely by passage of time does not itself breach s. 8.

The impugned 25 percent effect under the second renewal arrangement was void, and the lower pay-rate formula governed.

In a criminal appeal as of right, the Court addressed whether an erroneous jury instruction on fabrication of alibi and evidentiary rulings required appellate intervention.

The Court confirmed that an alibi-fabrication instruction must be limited to an inference of consciousness of guilt and requires independent evidence linking the accused to deliberate fabrication.

Although the instruction was erroneous, the Court held the evidence against the accused was overwhelming.

Applying the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, the convictions for first degree murder and attempted murder were upheld.

The Crown appealed a declaration that the restriction on enhanced pre-sentence custody credit in s. 719(3.1) of the Criminal Code was unconstitutional.

The Court held that denying enhanced credit to offenders denied bail primarily because of prior convictions is overbroad under s. 7 because the provision captures persons unrelated to the public safety objective and affords limited meaningful review of endorsements.

The infringement was not saved by s. 1, as the measure was not minimally impairing and its deleterious liberty effects outweighed its benefits.

The Court also rejected the proposition that proportionality in sentencing process is an independent principle of fundamental justice under s. 7.

On a sentence appeal, the Court considered a constitutional challenge to the one-year mandatory minimum in s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act for repeat trafficking-related offences.

The majority held provincial court judges may decide constitutionality in matters before them, although they cannot issue formal s. 52(1) declarations.

Applying the reasonable hypothetical framework, the Court found the provision captured less blameworthy offenders and could impose grossly disproportionate punishment contrary to s. 12 of the Charter.

The infringement was not justified under s. 1, and the Court declined to decide s. 7 after resolving the appeal under s. 12.

The appeal was allowed and the 12-month sentence restored.

On a constitutional appeal, the appellants sought declarations that Métis and non-status Indians fall within Parliament’s jurisdiction under s. 91(24), that the federal Crown owes them a fiduciary duty, and that they have consultation and negotiation rights.

The Court held that Métis and non-status Indians are “Indians” under s. 91(24), restored the broader trial declaration, and rejected restricting Métis status to the Powley framework for this jurisdictional purpose.

The Court found this declaration had practical utility in ending the federal-provincial jurisdictional impasse.

The Court declined the second and third declarations as restatements of settled law lacking practical utility.

On a criminal appeal concerning party liability for cocaine trafficking, the appellants challenged convictions entered after the appellate court set aside acquittals.

The court held that, on the trial judge's factual findings, aiding and abetting through protective conduct for the distribution operation was established.

The reasons accepted that the appellants' acts hindered interference and provided assistance and encouragement to the principal offender.

The court affirmed the appellate disposition and dismissed both appeals.

In a labour arbitration context, a public-sector employer challenged an interlocutory ruling permitting examination of executive committee members on in camera deliberations leading to a teacher’s dismissal.

The Court held that reasonableness was the applicable review standard and upheld the arbitrator’s evidentiary ruling.

It concluded that the doctrine that legislative motives are unknowable and deliberative secrecy did not bar the proposed examinations in this contractual employment-dismissal setting.

The appeal was dismissed with costs and the grievance inquiry was remanded to proceed.

In this criminal appeal as of right, the Court considered whether the confinement element required for first degree murder under s. 231(5)(e) was made out where the accused blocked the victim from escaping before the killing.

The Court held that the trial judge was entitled to find that the forcible or unlawful confinement was distinct and independent from the act of killing.

The appellate intervention substituting second degree murder was therefore unwarranted.

The conviction for first degree murder was reinstated and the appeal was allowed.

In this criminal appeal as of right, the Court considered whether evidence obtained after an unlawful police detention should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms following a breach of s. 9.

Adopting the reasons of the intermediate appellate court judge, the Court held that the weighing of the relevant exclusion factors did not support excluding the impugned evidence.

The conviction was therefore left undisturbed.

The appeal was dismissed from the bench with brief oral reasons.

In a criminal appeal as of right based on a dissent, the appellant argued ineffective assistance of trial counsel and resulting unfair trial.

The Court applied the two-part test requiring proof of counsel incompetence and a resulting miscarriage of justice.

It held that, although the dissent identified critical deficiencies, the reasons did not establish how those deficiencies caused a miscarriage of justice.

The Court was not persuaded that any form of miscarriage of justice occurred and dismissed the appeal.

In an appeal concerning transportation regulation, the appellant sought to invalidate amending rail interswitching regulations on the basis that the regulator followed improper governmental direction in the rule-making process.

The appellant accepted that the regulator had statutory authority and that a presumption of proper administrative action applied.

The Court held that no evidentiary foundation was provided to rebut that presumption.

The appeal was dismissed with costs to the federal respondent.

The appellant challenged an order for a new trial after the court below set aside an acquittal on a sexual assault charge.

The dispositive issue was whether the trial judge’s failure to instruct the jury on taking reasonable steps to ascertain consent could reasonably have had a material bearing on the acquittal.

The Court agreed with the majority below that the instructional error met that threshold.

The appeal was dismissed and the new trial order stood.

On a motion to extend the suspension of the declaration of constitutional invalidity granted in an earlier physician-assisted death ruling, the moving party sought a six-month extension.

The Court held that the federal election delay constituted extraordinary circumstances justifying only a four-month extension.

The Court also granted an exemption for Quebec in relation to specified provincial end-of-life care provisions and permitted eligible individuals to seek judicial authorization from superior courts during the extension period.

A partial dissent would have granted only the four-month extension and refused both exemption requests.

Special costs were awarded on a full indemnity basis.

The appellant challenged a provincial appellate decision that had set aside an acquittal for manslaughter and ordered a new trial.

The Court addressed corroboration and hearsay issues arising from the trial judge's treatment of confirmatory evidence.

A majority concluded that the appeal should be allowed substantially for the reasons given in the dissenting reasons below and restored the acquittal.

The result confirms that the identified hearsay-test error did not affect the trial outcome.

The accused appealed convictions for fraud and an order for a new trial on cheating-related counts arising from attempts to rig horse races by drugging horses.

The Court held there was evidence a horse race can involve mixed chance and skill through randomized post positions, supporting a new trial on cheating counts.

It further held the drugging scheme constituted dishonest conduct creating a non-remote risk of deprivation to bettors, and upheld entered fraud convictions.

The appeal was dismissed.