Law Times

www.lawtimesnews.com Page 14 January 21, 2008 / Law Times SUPREME COURT OF CANADA Charter Of Rights FUNDAMENTAL JUSTICE Tests for voluntariness and breach of s. 7 right to silence functionally equivalent where detainee aware he was speaking to person in authority Accused arrested for second-degree murder and taken into police cus- tody. Accused consulted privately with counsel, then interviewed by police officer. Accused asserted right to silence 18 times but inter- rogation continued. During inter- view, accused identified himself in photographs. Voir dire held to determine admissibility of state- ments. Judge satisfied that state- ments voluntary and that accused failed to establish breach of ac- cused's right under s. 7 of the Char- ter. Accused convicted. Accused appealed to Court of Appeal. Ap- peal dismissed. Accused appealed to Supreme Court of Canada. Ap- peal dismissed. Where detainee is aware that he is speaking to person in authority, test for voluntariness and test for breach of s. 7 right to silence are functionally equivalent. Having survived thorough inquiry into voluntariness, accused's Char- ter application could not succeed. Imposing bright line requirement that police refrain from question- ing detainee whenever he asserts right to silence would exceed pro- tection afforded. More important- ly, imposing requirement would ignore state interest in effective investigation of crime. R. v. Singh (Nov. 1, 2007, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 31558) Appeal from 69 W.C.B. (2d) 671 dis- missed. Order No. 007/309/032 (57 pp.). FEDERAL COURT OF APPEAL Crown IMMUNITY Police officer's claims barred by s. 9 of Crown Liability and Proceedings Act (Can.) Appellant RCMP constable brought claim seeking dam- ages against Crown on numerous grounds. Factual basis of claim consisted of allegations of harass- ment and other wrongful acts of senior RCMP officers, including her direct superiors. Appellant was awarded pension on basis that she was disabled by mental illness caused by acts of senior RCMP officers. Motion judge correctly struck appellants' statement of claim on basis that all of claims were barred by s. 9 of Crown Li- ability and Proceedings Act (Can.), because they were based substan- tially on same factual allegations as pension awarded to appellant. Appeal dismissed without preju- dice to right of appellant to file new statement of claim containing claims that were not barred by act. Lebrasseur v. Canada (Oct. 18, 2007, F.C.A., Richard C.J., Nadon and Sharlow JJ.A., File No. A-401- 06) Appeal from 150 A.C.W.S. (3d) 105 dismissed. Order No. 007/303/048 (11 pp.). Evidence PRIVILEGE Application judge erred in sum- marizing sensitive information Respondent was in custody await- ing his trial in Ontario Superior Court of Justice on seven criminal charges relating to conspiracy to commit terrorist acts in United Kingdom. Application judge, in applying s. 38.06 of Canada Evi- dence Act, erred in summarizing sensitive or potentially injurious information contained in docu- ments in issue, despite finding that information should not be disclosed. Application judge did not err in failing to give appel- lant opportunity to make ex parte submissions regarding proposed summary of sensitive or poten- tially injurious information before authorizing its disclosure. Appeal allowed, but only to extent of sub- stituting new Schedule A for one prepared by judge. Cross-appeal dismissed. Canada (Attorney General) v. Kha- waja (Oct. 31, 2007, F.C.A., Rich- ard C.J., Letourneau and Pelletier JJ.A., File No. DESA-1-07) De- cision at 158 A.C.W.S. (3d) 950; 219 C.C.C. (3d) 305; 47 C.R. (6th) 346 was varied. Order No. 007/317/225 (22 pp.). Police BOARDS OF COMMISSIONERS OF POLICE R.C.M.P. Stoppage of Pay and Allowances Regulations (Can.) not ultra vires Trial judge did not err in deter- mining that RCMP Stoppage of Pay and Allowances Regulations (Can.), were not ultra vires. In enacting s. 2 of regulations and in authorizing commissioner to order stoppage of pay and allowances of member suspended from duty, Treasury Board fully complied with authority given to it by leg- islation. Subdelegation to commis- sioner was intended by necessary implication. Kindratsky v. Canada (Attorney General) (Oct. 22, 2007, F.C.A., Linden, Nadon and Pelletier JJ.A., File No. A-46-07) Appeal from 154 A.C.W.S. (3d) 721 dismissed. Order No. 007/317/060 (5 pp.). FEDERAL COURT Industrial And Intellectual Property COPYRIGHT Plaintiffs awarded $227,000 in damages for trademark and copyright infringement Plaintiffs were entitled to default judgment against defendants for infringement and passing off counterfeit Louis Vuitton prod- ucts making use of plaintiffs' trademarks and selling products that infringed plaintiffs' copyright. Plaintiffs were awarded maximum statutory award of $20,000 for each of discrete acts of infringe- ment of two copyrighted works for total amount of $40,000. Plain- tiffs were also awarded $87,000 as nominal profits for infringe- ment of trademark rights as well as $100,000 for punitive or exem- plary damages, plus solicitor-client costs in lump sum of $36,699. Louis Vuitton Malletier S.A. v. Yang (Nov. 14, 2007, F.C., Snider J., File No. T-1236-07) Order No. 007/330/184 (23 pp.). TAX COURT OF CANADA Taxation INCOME TAX Disallowance of losses related to bed and breakfast business referred for reconsideration Appellant husband and wife oper- ated bed and breakfast business. Minister reassessed appellants to disallow portion of losses claimed pursuant to s. 18(12) of Income Tax Act (Can.). Essential question was not whether 540 square feet which appellants called their pri- vate living space was self-contained domestic establishment, rather it was whether rest of 4,448 square feet that was intended to be used and was in fact used by bed and breakfast operation formed part of "self-contained domestic es- tablishment." Appellants did not reside in that portion of building that was devoted to and used for accommodation of guest in bed and breakfast operation. Assess- ments referred back to minister for reconsideration and reassessment. Appeals allowed. Denis v. Canada (Nov. 1, 2007, T.C.C., Bowman C.J.T.C.C., File No. 2006-907(IT)G) Order No. 007/323/148 (28 pp.). ONTARIO CIVIL CASES Civil Procedure DISCOVERY Plaintiff ordered to answer questions about injuries from prior accident Plaintiff alleged he was injured while riding plaintiff 's bicycle when defendant drove vehicle through intersection after failing to stop at stop sign at intersection. Plaintiff refused to answer ques- tions about alleged brain injury from earlier motor vehicle acci- dent. Judge decided brain injury had resolved. Defendant brought motion for answers to undertak- ings and refusals. Motion was al- lowed. Whether there was abuse of process by relitigating issue of brain injury from earlier accident was matter for trial judge. Ques- tions were to be answered because they were relevant to pleadings. Cooper v. Kligman (Nov. 13, 2007, Ont. S.C.J., Master Glustein, File Case Law CaseLaw CaseLaw CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. 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