initially told police that Liang was a friend
who had incurred significant gambling
debts. Liang told Feng that he came up with
a plan to rob Li at the start of her shift, when
she was expected to carry a significant
amount of cash, and then murder her. Feng
said that Liang asked if he would assist him.
In return, Liang offered to split the money
that they stole from Li. On a later occasion,
Feng told police he had seen Liang after Li
had been killed, and that Liang had admitted that he murdered Li. In June and July,
Feng consistently told police that although
he had known about the plan to murder Li,
he had not participated in the murder and
did not know what happened to the body.
Feng eventually admitted to police that he
had been in Liang’s van when Li was picked
up at the casino, but claimed he had been
dropped off before Liang killed her. On September 8, 2006, Feng delivered a letter turning himself in to the police. In this letter, he
apologized for not admitting to his guilt
before, and for lying to the police. He
attached a note advising that Li’s body was
buried at a beach. On September 9, 2006,
Feng led the police to where Li’s body was
buried. Later that day, in an interview with
the police, he finally admitted that he had
participated with Liang in the killing of Li by
strangling her with a belt. The trial judge
told the jury that Feng’s post-offence conduct, including making a false and misleading statement to the police, was circumstantial evidence that had only an indirect
bearing on the issue of guilt. She instructed
them that to find guilt based on this evidence, it had to be consistent with Feng’s
guilt and inconsistent with any other rational
conclusion, and advised them to exercise
caution in inferring guilt because the conduct might be explained in an alternative
manner. On appeal, Feng argued that the
trial judge misdirected the jury with respect
to how they could use the evidence of his
post-offence conduct, in particular evidence
that he deliberately lied to the police.
HELD: Appeal dismissed. The trial judge
did not misdirect the jury on the use they
could make of the evidence of Feng’s post-offence conduct. The “no probative value”
requirement was satisfied with respect to
post-offence conduct in general, although
the trial judge could have been clearer when
referring to the use of deliberately misleading false statements. However, in the context
of the instructions on post-offence conduct
as a whole, the jury would not have concluded that they could use the fact that after
the event Feng made deliberately false statements as proof of his mental state.
R. v. Feng, [2012] B.C.J. No. 873, Brit-
ish Columbia Court of Appeal, M.V. New-
bury, R.E. Levine and K.E. Neilson JJ.A.,
April 3, 2012. Digest No. 3205-004
PROCEDURE – Jury – Jurors – Trial
judge’s duties – Charge or directions –
Onus and burden of proof – Appeals –
Grounds – Miscarriage of justice.
Appeal by the accused from his convic-
tion for sexual assault. The appellant
appealed on two grounds. First, the appel-
lant argued that the trial judge erred in his
instructions to the jury on reasonable doubt
because he combined an improper defin-
ition of reasonable doubt with a reference
to a timid juror and to morality-laden lan-
guage frequently criticized by appellate
courts. The second ground concerned the
integrity of the jury selection process.
Shortly before jury selection began, Crown
counsel at trial provided defence counsel
with an annotated list of jurors from which
the jury was to be selected. The additional
information provided was more extensive
than simply the criminal records of the pro-
spective jurors. During the selection pro-
cess, neither party used up all of their per-
emptory challenges. The appellant argued
that the lateness of the disclosure to defence
counsel and the failure of the Crown to cor-
rect some of the trial judge’s comments
about the lack of knowledge of the jurors’
background in his opening instructions
about the selection process resulted in a
miscarriage of justice.
CONTROLLED DRUGS AND SUBSTANCES – Possession – Marijuana –
Medical exemption – Constitutional
issues – Canadian Charter of Rights and
Freedoms – Life, liberty and security of
person.
Application by Smith for a judicial stay
of charges of possession of marijuana and
possession of tetrahydrocannabinol (THC)
for the purpose of trafficking, contrary to
the Controlled Drugs and Substances Act,
and for an order that the Marihuana Medical Access Regulations (MMAR) were
unconstitutional. On December 3, 2009, in
response to a complaint from a building
manager that he had received complaints of
a strong offensive “skunky” odour coming
from Smith’s apartment, the police obtained
a search warrant for the apartment. Smith
admitted that, as he was separating THC
from cannabis marijuana, baking it into
cookies, putting THC-infused oil into capsules, and making a variety of other products that contained THC so that his
employer could sell them, he had in his
possession THC for the purposes of distribution. He also admitted to possession of
dried marijuana. Smith was employed by
the Cannabis Buyers Club of Canada. He
processed dried marijuana into a number
of different products, including cookies, oil-filled capsules, and other edible and nonedible products. The Club admitted to
membership those who could establish that
they suffered from a permanent physical
disability or disease. Smith argued that the
MMAR, which established a regulatory
scheme by which someone could apply for
an authorization to possess marijuana,
could not constitutionally prohibit his rendering of dried cannabis plant material into
oils and other substances infused with the
active ingredients of the cannabis plant,
particularly THC, for medical purposes.
Smith claimed that the provisions of the
Act and the MMAR infringed his s. 7 Charter right to life, liberty and security of the
person. He sought a declaration that to the
extent that the provisions were inconsistent
with the Charter, in limiting lawful possession of marijuana for medical purposes to
possession in the form of dried cannabis,
those provisions were of no force or effect.
At issue was whether the requirement
imposed by Health Canada through s. 2 of
the MMAR that those to whom an authorization to possess had been issued could
lawfully possess their marijuana in dried
form only was constitutionally valid.
HELD: Application allowed in part. The
word “dried” wherever it appeared in the
MMAR was ordered deleted. Consequently,
the definition of “dried marijuana” became
superfluous and was also deleted. A judicial
stay of proceedings was not granted. The
MMAR engaged the liberty interests of
those who had an authorization to possess.
Their liberty interests were affected by the
fact that their right to choose how to take
medication they were authorized to possess
was a decision of fundamental personal
importance. The restriction to dried marijuana in the MMAR did little or nothing to
enhance the state’s interests, including the
state interest in preventing diversion of a
drug, or controlling false and misleading
claims of medical benefit. The restriction
and its engagement of the rights to liberty
and security did not accord with the principles of fundamental justice, and therefore
infringed those rights. The restriction of
medical marijuana to its dried form was not
necessary to make the enforcement of drug
laws possible. Making the enforcement of
drug laws easy was not to be done if the cost
of doing so put the rights protected by s. 7
of the Charter at risk. In the absence of
clear evidence that the restriction to dried
marijuana was necessary, the restriction
was arbitrary. There was little rational connection between the restriction to dried
marijuana and the legitimate objective of
preventing diversion of lawful medical
marijuana into the illegal market. The
restriction to dried marijuana unnecessarily and unreasonably impaired the security
right to choose how to ingest the medicinal
ingredients in the safest and most effective
manner, and it intruded disproportionately
on constitutionally protected rights. Therefore, the dried marijuana restriction’s
infringement of s. 7 rights to liberty and
security of the person was not saved by s. 1
of the Charter. A judicial stay was not
appropriate, as society’s interests in having
the charges against Smith tried on their
merits outweighed the violation of Smith’s
liberty right. Furthermore, no lack of good
faith or abuse of process was shown that
warranted consideration of a judicial stay of
proceedings.
R. v. Smith, [2012] B.C.J. No. 730,
British Columbia Supreme Court, Vic-
toria, British Columbia, R. Johnston J.,
April 13, 2012. Digest No. 3205-006
EMPLOYMENT LAW
DISCIPLINE AND TERMINATION
OF EMPLOYMENT – Arbitration and
mediation – Termination by employer,
with cause – Elimination of position –
Procedural fairness.
Application by the Board of Education
of the Northern Lights School Division for
an order setting aside a decision by a Board
of Reference appointed pursuant to the
Education Act. The Board terminated a
principal four months into an employment
contract. The employment posting was for
a full-time continuing position at a remote
fly-in community. The principal’s resume
had stated that he held Manitoba and Brit-
ish Columbia certification but made no
mention of eligibility for certification in
Saskatchewan. No mention was made in
the hiring interview of Saskatchewan cer-
tification. The principal formally accepted
an offer of employment. On the acceptance
form, where it required provision of a Sas-
katchewan certificate number, the principal
listed his certificate numbers in the other
provinces. The Board of Education con-
firmed the principal’s acceptance and
issued a contract of employment executed
by the parties. It was subsequently deter-
mined that the principal’s certification in
the other provinces were not equivalent to
the certification required for the position in
Saskatchewan. The principal was termin-
ated despite a performance that was exem-
plary by all accounts. The mechanism of
termination involved the removal of his
principal duties and the termination of
residual teaching duties for redundancy.
The Board of Reference held that the con-
tract was not properly terminated and
awarded compensation for the remainder
of the school year. The Board of Reference
held that the Education Act did not require
a principal to hold any particular type of
teacher’s certificate and that the Board of
Education ought to have known at the time
it offered employment that the principal
did not have the equivalent of the Saskatch-
ewan certification stated as a requirement
for the position. The Board of Reference
further held that the termination for redun-
dancy was improper given that the princi-
pal never held a teaching position and no
such position was eliminated. The Board of
Education sought review.
HUMAN RIGHTS LAW
DISCRIMINATION – Constructive or
adverse effect – Prohibited grounds –
Race, colour, ancestry or place of origin
– Government benefits and services –
Canadian Human Rights Act.
Applications by the First Nations Child
and Family Caring Society and the Assembly of First Nations for judicial review of the
Canadian Human Rights Tribunal’s dismissal of their complaint. The Government
of Canada funded child welfare services for
First Nations children living on reserves.
The provinces funded child welfare services
for all other Aboriginal and non-Aboriginal
