Supreme Court Denies Leave to Appeal in Alberta Cases

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Cases commented on: R v Alcantara, 2013 ABCA 163; R v Hanna, 2013 ABCA 134; Young v National Money Mart Company, 2013 ABCA 264

On January 30, 2014 the Supreme Court denied leave to appeal in three Alberta cases that gave rise to four separate leave applications. The Court’s summaries of the cases, and their dispositions, are below. Jonnette Watson Hamilton posted a comment on the Money Mart decision here.

35580       John   Reginald Alcantara v. Her Majesty the Queen (Alta.)(Criminal)    (By Leave)

Charter of   Rights – Remedy –   Criminal law – Evidence – Disclosure – Can a court of appeal decline to order   a new trial under s. 24(1) of the Charter when the Crown has failed to   provide timely disclosure that affected trial fairness and violated the   applicant’s right to make full answer and defence – Does the three-part   framework in R. v. Grant for the exclusion of evidence under s. 24(2)   of the Charter apply to an application for a stay of proceedings under   s. 24(1) – s. 24(1) of the Charter.

The   evidence at trial included a number of intercepted communications which were   recorded pursuant to judicially approved authorizations. It was a term of the   authorizations that certain classes of intercepted conversations be “live   audio monitored”.  After the applicant was convicted, the Crown   disclosed that the intercepted conversations had not all been “live   monitored” and that a “put away” feature had also been used.  The   applicant appealed his conviction and argued that his Charter rights   were violated by the failure to continuously “live monitor” the   interceptions, and by the failure of the Crown to disclose in a timely way   the use of the “put away” feature.  The applicant’s appeal from   conviction was dismissed.

Coram: McLachlin / Cromwell / Wagner: 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 without costs.

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35615    Dwayne   Daryl Hanna v. Her Majesty the Queen (Alta.) (Criminal) (By Leave)

Criminal   law — Sentencing — Fitness of sentence — Accused guilty of dangerous driving,   driving while disqualified and breaching two recognizances — Accused alleged   police used excessive force during arrest but trial judge found no police   misconduct — Accused sentenced to five years and six months incarceration —   On appeal, sentenced varied to four years and nine months — Whether Court of   Appeal erred in declining to further reduce sentence? — Whether Court of   Appeal erred in limiting itself to sentencing judge’s analytical approach,   having found palpable and overriding error in portion of judge’s analysis? —   Whether Court of Appeal erred in considering effect of police misconduct,   which trial judge failed to identify, when Court of Appeal deemed itself   otherwise bound by judge’s analysis of totality principle? — Whether five   year sentence for driving while disqualified unduly excessive and harsh where   court deducts only nine months for police misconduct?

The   applicant, Mr. Hanna, was charged with dangerous driving, driving while   disqualified, assault with a weapon and breaching two recognizances.    After observing Mr. Hanna driving in excess of the speed limit, a sheriff   followed Mr. Hanna’s vehicle to a farmyard. Just as the sheriff was   preparing to exit his vehicle, Mr. Hanna gunned his engine and sped by the   sheriff’s vehicle, clipping the driver’s side door with his mirror.    Following a spin-out, Mr. Hanna’s vehicle came to rest in a ditch.  A   police dog was used to apprehend Mr. Hanna.  Mr. Hanna took the position   that the charges should be stayed because the police used excessive force   during the course of his arrest.  The trial judge found Mr. Hanna guilty   of dangerous driving, driving while disqualified and breaching two   recognizances, but not guilty of assault with a weapon because the Crown   failed to establish that Mr. Hanna intended to hit the sheriff’s vehicle or   to threaten the sheriff.  Considering the circumstances, releasing the   police dog without warning Mr. Hanna first was not excessive, nor were the   punches administered by the police.  Mr. Hanna was sentenced to   five years and six months incarceration and a seven year driving   prohibition.  A majority of the Court of Appeal, however, found that Mr.   Hana should receive a sentence of three years and six months on the offence   of driving while disqualified.  On the offence of dangerous driving, the   majority concluded that the trial judge’s consecutive sentence of two years   should be subject to a deduction of nine months for the police’s   misconduct.  Therefore, the majority concluded that the final sentence   was four years and nine months, less the 382 days credit for pretrial custody   and the seven year licence suspension would remain as imposed.  Berger   J.A. (dissenting) would have allowed the appeal and substituted a sentence of   three years and three months imprisonment less the 382 days credit for   pretrial custody.

Coram: Abella / Rothstein / Moldaver: 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 without costs.

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35564      National Money Mart Company carrying on business under the name and  style “Money Mart” v. Gareth Young, as representative Plaintiff, H. Craig Day, as representative Plaintiff (Alta.) (Civil) (By Leave)

Contracts   – Class actions – Stay of proceedings – Are class action waiver clauses in   consumer contracts enforceable if they operate independently of any   arbitration provision? – If the language of a class action waiver clause is   clear and unambiguous, on what grounds or in what circumstances should a   court decline to enforce a class action waiver clause? – Are class action   waiver clauses in consumer contracts are unconscionable per se, or   presumed to be unconscionable, or must be proven to be unconscionable, or   contrary to public policy, or inconsistent with the scheme and purpose of   class action statutes.

As   representative plaintiffs, Day and Young claim that the fees charged by the   applicant Money Mart for short term or “payday” loans are unlawful.  The   written loan documentation contained clauses requiring the arbitration of any   disputes relating to the loan contract.  There were separate clauses   with respect to class action litigation.  The most recent version reads   in part:

Each party also agrees not to commence or   participate in any class action either as    a representative Plaintiff or as a   member of a Plaintiff class, and to opt out of any class action, if the class   action involves, directly or indirectly, any Claim.

The   applicants brought a motion to dismiss or stay the proceedings on the grounds   that the representative plaintiffs had agreed in writing to proceed with   mediation or arbitration of the disputes against Money Mart, and that they   had also agreed in writing not to participate in class actions.  These   motions to stay were dismissed, as were the subsequent appeals to the Court   of Appeal for Alberta.

Coram: Abella / Rothstein / Moldaver: Dismissed with Costs

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35565      1008485 Alberta Ltd., 815028 Alberta Ltd., and 632758 Alberta Ltd. v. H. Craig Day, as representative Plaintiff (Alta.) (Civil) (By Leave)

Contracts – Class actions – Stay of proceedings – Are class action waiver clauses in     consumer contracts enforceable if they operate independently of any arbitration provision? – If the language of a class action waiver clause is     clear and unambiguous, on what grounds or in what circumstances should a court decline to enforce a class action waiver clause? – Are class action waiver clauses in consumer contracts are unconscionable per se, or presumed to be unconscionable, or must be proven to be unconscionable, or contrary to public policy, or inconsistent with the scheme and purpose of class action statutes.

As representative plaintiffs, Day and Young claim that the fees charged by the applicant Money Mart for short term or “payday” loans are unlawful. The written loan documentation contained clauses requiring the arbitration of any disputes relating to the loan contract.  There were separate clauses with respect to class action litigation.  The most recent version reads in part:

Each party also agrees not to commence or participate in any class action either as a representative Plaintiff or as a member of a Plaintiff class, and to opt out of any class action, if the class action involves, directly or indirectly, any Claim.

The applicants brought a motion to dismiss or stay the proceedings on the grounds that the representative plaintiffs had agreed in writing to proceed with mediation or arbitration of the disputes against Money Mart, and that they had also agreed in writing not to participate in class actions. These motions to stay were dismissed, as were the subsequent appeals to the Court of Appeal for Alberta.

Coram: Abella / Rothstein / Moldaver: Dismissed with Costs

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