Labour matters before Federal Court of Appeal seek damages due to Phoenix pay system implementation
This week, Canada’s highest court tackled criminal law cases with issues about the exclusion of evidence for Charter breaches and the propriety or application of publication bans. The Federal Court of Appeal heard labour matters brought by or against unions.
Supreme Court of Canada
On Monday, the Supreme Court heard George Zacharias v. His Majesty the King, 40117 and reserved judgment. The case arose from the appellant’s conviction for possession of 101.5 pounds of cannabis for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act, 1996.
At trial, the issue was whether the constable who conducted a traffic stop of the appellant’s truck had reasonable suspicion to enter into an investigative detention and to deploy a sniffer dog.
The trial judge ruled that the constable’s actions were unlawful and violative of the appellant’s rights to freedom from unreasonable search and arbitrary detention under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. She applied the test in R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353 and found that the first two factors did not strongly favour excluding the evidence and that the third one favoured including it.
A majority of the Alberta Court of Appeal dismissed the appeal. It accepted that the trial judge failed to expressly include s. 9 of the Charter when considering the second Grant factor but found that this failure did not impact the result.
The dissenting judge wanted to acquit the appellant, to set aside the conviction, and to exclude the seized evidence. Given that the second Grant factor strongly favoured excluding the evidence, balancing all three factors would point toward exclusion, the dissenting judge said.
On Tuesday, the Supreme Court heard La Presse inc. v. Frédérick Silva, et al, 40175 and reserved judgment. The case arose when the prosecution charged the respondent with four counts of murder and one count of attempted murder by direct indictment.
The Quebec Superior Court dismissed the respondent’s motion for a stay of proceedings in August 2021 and motion under R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 in October 2021. The court issued orders under s. 648(1) of the Criminal Code to prohibit publication, broadcasting, and transmission relating to the August 2021 and October 2021 judgments.
At a judge-alone trial, the judge formally recognized that the prosecution discharged its burden on the essential elements of four of the five counts through a nolo contendere proceeding. The judge convicted the respondent of those four offences.
The parties agreed to separately try the last count for second degree murder by judge and jury in May 2022. Before the trial began, La Presse inc. moved to lift the orders prohibiting publication, broadcasting, and transmission in connection with the August 2021 and October 2021 judgments.
The Quebec Superior Court dismissed the motion. The respondent brought a nolo contendere proceeding on the last count, which led to the cancellation of the jury trial. The present case before the Supreme Court concerned the orders prohibiting publication, broadcasting, and transmission.
On Wednesday, the Supreme Court of Canada heard Canadian Broadcasting Corporation, et al v. Aydin Coban, et al, 40223. Before the B.C. Supreme Court, the accused was charged with the Criminal Code offences of extortion under s. 346, possession of child pornography for the purpose of distribution under s. 163.1(3), possession of child pornography under s. 163.1(4), luring a child under s. 172.1, and criminal harassment under s. 264.
Before the jury selection process, the B.C. court imposed a publication ban on pre-trial applications in the proceedings under s. 648(1) of the Code. A consortium of media outlets applied to clarify the ban and to declare it applicable only after the jury was empaneled. A judge dismissed the application.
Federal Court of Appeal
On Monday, the appellate court heard two appeals challenging decisions of the Canada Industrial Relations Board. In Tariq Rana v. Teamsters Local Union No. 938, A-245-22, the applicant alleged that the tribunal prevented a full hearing of the complaint when it refused to give the union an opportunity to address evidence that its business representative unlawfully received money in violation of its rules.
The appeal in Nadine Perrin et al v. CUPE et al, A-132-22 arose from the applicants’ unfair labour practice complaint against the Air Canada Component of Canadian Union of Public Employees (CUPE) under s. 97(1) of the Canada Labour Code. The applicants challenged the tribunal’s dismissal of the complaint and its decision to give “major importance” to legal opinions obtained by the CUPE.
On Tuesday, the appellate court heard the related appeals in Public Service Alliance of Canada v. House of Commons, A-122-21 and in Public Service Alliance of Canada v. Senate of Canada, A-265-21. Here, the applicant national labour union challenged an arbitral award of the Federal Public Sector Labour Relations and Employment Board.
The tribunal unreasonably refused to award a proposed lump sum payment for general damages for harms allegedly experienced due to the implementation of the Phoenix pay system for federal government employees and the late implementation of the previous collective agreement, the applicant claimed.
