"Sex, Lies And Videotape" --Good Evidence?

An employer installs video surveillance in his office with the intent to catch any employees rifling through his private file cabinet. What is caught on tape is two employees doing something entirely different. Can the employer use this footage as evidence to terminate the two employees for just cause? An arbitration board's interim decision in Vernon Professional Firefighter's Association, IAFF, Local 1517 and The Corporation of the City of Vernon says yes. Read More...

Supreme Court of Canada rules voting ban on Canadians residing abroad 5 years or more is unconstitutional.

"The combined effect of ss. 11 (d), 222 and other related provisions of the Canada Elections Act is to deny Canadian citizens who have resided abroad for five years or more the right to vote in a federal election unless and until they resume residence in Canada. The constitutionality of these provisions was challenged by two non‑resident Canadian citizens, who applied for a declaration that their right to vote entrenched in s. 3 of the Charter was infringed, and that the impugned provisions were unconstitutional. The application judge agreed, found that the impugned provisions could not be saved under s. 1 of the Charter , and made an immediate declaration of invalidity. A majority of the Court of Appeal allowed the Attorney General of Canada’s appeal. Although the Attorney General of Canada conceded that the impugned provisions breach s. 3 of the Charter , the violation of s. 3 was found to be justified."

S.C.C. held (3 judges concurring with the Chief Justice, 1 judge writing separate concurring reasons, and 2 judges writing joint dissenting reasons) that the appeal is allowed; sections 222(1) (b) and (c), 223(1) (f) and 226 (f) of the Canada Elections Act are declared to be of no force or effect; the words “a person who has been absent from Canada for less than five consecutive years and who intends to return to Canada as a resident” are struck from s. 11(d) of the Act and are replaced with the words “an elector who resides outside Canada”; and the word “temporarily” is struck from ss. 220, 222(1) and 223(1)(e) of the Act. Read More...

Supreme Court of Canada rules mandatory victim surcharges unconstitutional.

"Under s. 737 of the Criminal Code, everyone who is discharged, pleads guilty to, or is found guilty of an offence under the Criminal Code or the Controlled Drugs and Substances Act is required to pay monies to the state as a mandatory victim surcharge. The amount of the surcharge is 30 percent of any fine imposed, or, where no fine is imposed, $100 for every summary conviction count and $200 for every indictable count. Although sentencing judges have the discretion to increase the amount of the surcharge where appropriate, they cannot decrease the amount or waive the surcharge for any reason. The imposition of the surcharge cannot be appealed.

At sentencing, several offenders challenged the constitutionality of the surcharge on the basis that it constitutes cruel and unusual punishment, contrary to s. 12 of the Charter, violates their right to liberty and security of the person, contrary to s. 7 of the Charter, or both. The offenders all live in serious poverty and face some combination of addiction, mental illness and disability. While the results were mixed at sentencing, the respective courts of appeal rejected the constitutional challenges."

S.C.C. (7:2) allowed the appeals; section 737 of the Criminal Code infringes s. 12 of the Charter, not saved by s. 1, and is invalidated immediately.

Supreme Court of Canada finds there is a reasonable expectation of privacy in shared computer; warrantless seizure and search unreasonable.

"The accused shared a home with his common‑law spouse. Following charges of domestic assault against the accused, a no‑contact order was issued which prohibited the accused from visiting the home without his spouse’s prior, written and revocable consent. When the spouse contacted the accused’s probation officer to withdraw her consent for him to enter the home, she reported that she had found what she believed to be child pornography on the home computer which she shared with the accused. A police officer came to the family home without a warrant. The accused’s spouse allowed the officer to enter and signed a consent form authorizing him to take the computer, which was located in a shared space in the home. The police detained the computer without a warrant for more than four months before searching it. They also failed to report the seizure of the computer to a justice, despite the requirements of s. 489.1 of the Criminal Code . When the police finally obtained a warrant to search the computer, they found 140 images and 22 videos of child pornography. The accused was charged with possessing and accessing child pornography but applied to exclude the computer‑related evidence claiming that his right to be secure against unreasonable search or seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms had been violated. The application judge agreed. Accordingly, he excluded the computer evidence under s. 24(2) of the Charter and the accused was acquitted. The Court of Appeal allowed the Crown’s appeal from the acquittal, set aside the exclusionary order and ordered a new trial."

S.C.C. held (9:0, with two separate judges writing separate concurring reasons) that the appeal is allowed, the evidence excluded and the acquittal restored. Read More...

Cumulative Breach Of Ethics Upheld As Proper Dismissal For Cause

Asserting and establishing just cause when faced with an action of wrongful dismissal is a difficult and often unsuccessful avenue for employers. Establishing an employee has committed acts or omitted to perform the responsibilities of their position therefore disentitling them to common law reasonable notice is a high burden. The height of the legal burden will differ depending on the type of cause asserted, but it remains an uphill battle for employers regardless of whether the cause is framed as insubordination, theft, fraud or a combination of issues.

A decision from the Court of Queen's Bench of Alberta provides a useful illustration of how cumulative improper acts can amount to just cause. The decision,
Molloy v. EPCOR Utilities Inc. involved an employee that was dismissed in 2009 following an investigation into complaints of breaches of the employer's Ethics and Respectful Workplace Policies and improper conduct with another utility company. Read More...