Law Times

www.lawtimesnews.com Page 18 February 4, 2008 / Law Times the bank in approving the appli- cations for the letters of credit, there was evidence that he was a party to the offence as an aider and abetter. There was therefore evidence that was not manifestly unreliable in respect of the fraud counts. Respondent claimed that the extradition could not occur because Hong Kong was part of China and Canada had no extradition with China. This submission was rejected because it was not an issue that was given to the extradition judge by the Extradition Act (Can.). It was not properly justiciable because Canada's international treaty ob- ligations were the responsibility of ministers of the Crown. China (People's Republic) v. Wong (Sep. 20, 2007, Ont. S.C.J., J. Macdonald J.) Order No. 007/283/118 (13 pp.). Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Presumption of care and control not rebutted Accused appealed dismissal of appeal from conviction for hav- ing care and control of vehicle while "over 80." Accused was found in vehicle, sleeping be- hind wheel. Ignition key had been taken by friend and when accused first fell asleep, he was laying on passenger side. Al- though police officer found key in ignition, key only operated accessories and would not turn vehicle on. Officer testified that she vaguely recalled radio being on. Summary conviction appeal court concluded trial judge did not err in finding that presump- tion of care and control applied and had not been rebutted. Al- though accused's original inten- tion was not to drive, that inten- tion clearly changed as a result of him having put key in igni- tion. Accused acknowledged he would have driven if he had had enough sleep. Appeal dismissed. Trial judge's reasons reflected finding that s. 258(1)(a) pre- sumption not rebutted. When fairly read, reasons concluded accused's intention changed af- ter initially getting into car. R. v. Fleming (Nov. 6, 2007, Ont. C.A., Simmons, MacFarland and Watt JJ.A., File No. C41855) Appeal from 61 W.C.B. (2d) 347 dismissed. Facts taken from lower court summary. Order No. 007/311/063 (2 pp.). Search And Seizure PUBLICATION RESTRICTION Publication ban discontinued where reasonable alternatives existed Application by a newspaper to terminate a publication ban re- garding certain redacted infor- mation. Municipal election was held in Ottawa in 2006. May- oral contest involved two can- didates. One of them withdrew from the race. Media reported allegations made by the candi- date who withdrew that the win- ner offered him compensation to withdraw. In connection with these allegations a justice of the peace made an order that sealed from disclosure the information to obtain a search warrant and the warrant itself. Sealing order was varied and public access was granted to the search warrant documents except for certain redactions. Winner had not yet been charged. Application was to determine if the publication ban on the redacted information was to continue. Application al- lowed. If the winner was charged and a jury trial occurred the risk that the jurors would remember the redactions and would be influenced by them was specu- lative. Fair trial risks that the winner and the Crown asserted in favour of the ban were merely generalized assertions that were insufficient to displace the pre- sumption against secrecy. Con- tinued ban was not necessary to prevent a serious risk to the administration of justice because reasonable alternative measures would prevent the risk. Deleteri- ous effects of the continuation of the ban outweighed its salutory effects on the rights and interests of the parties and the public. Ottawa Citizen v. Ontario (Oct. 11, 2007, Ont. S.C.J., Ratushny J., File No. 12505) Order No. 007/288/055 (10 pp.). Sexual Offences SEXUAL INTERFERENCE Evidence insufficient to establish accused touched young niece sexually Complainant was three-year-old niece of accused. During "tickle game" with mother, complain- ant disclosed that accused had stuck his finger in her vagina. Complainant later poked at her vagina and said that's what ac- cused did. In first statement to police, complainant made no reference to accused touching vagina. In second statement to police, complainant said ac- cused touched her vagina, that it tickled and that he poked her. At one point, complainant in- dicated that touching occurred in kitchen all day. At another point, complainant said touch- ing occurred once in bedroom. Complainant then said accused touched her five times. Accused admitted having opportunity to commit offence but denied any sexual touching. Accused found not guilty. Complainant's state- ments, which contained contra- dictions, insufficient to establish guilt beyond reasonable doubt. Unclear exactly what area com- plainant was referring to in re- lation to accused's touching. Complainant had stated that others had touched her vagina, meaning genital area and sur- rounding area. No reason to re- ject accused's denial. R. v. A. (K.) (Oct. 26, 2007, Ont. C.J., Caldwell J., File No. 4811 998 06 70011562) Order No. 007/309/144 (6 pp.). FEDERAL COURT OF APPEAL Citizenship QUALIFICATIONS Section 15 of Charter could not be applied to 1947 provision of Canadian Citizenship Act Respondent was born in Eng- land in 1944 out of wedlock. His mother was born in England and his father was born in Can- ada. Respondent's parents mar- ried in 1945 and they came to Canada in 1946. Marriage ended and respondent and mother re- turned to England shortly after. In 2003 respondent applied for Canadian citizenship. His appli- cation was dismissed on ground that having been born out of wedlock he had never acquired citizenship status. Respondent applied for judicial review on basis that loss provisions in 1947 Canadian Citizenship Act violated right to due process un- der Bill of Rights and Canadian Charter of Rights and Freedoms. Application judge found that re- spondent was Canadian citizen. Appeal allowed. To apply s. 15 of Canadian Charter of Rights and Freedoms, in circumstances, to 1947 provision would give Charter retrospective effect it could not have. Determination by application judge that due process required that persons be given proper notice of loss pro- visions in 1947 Act was contrary to long-standing parliamentary tradition and well-established legal principles. Due process of law under paragraph 1(a) of Bill of Rights did not require that prior notice be given to person at risk of being deprived of citi- zenship through forthcoming legislation. Taylor v. Canada (Minister of Citizenship and Immigration) (Nov. 2, 2007, F.C.A., Desjar- dins, Decary and Ryer JJ.A., File No. A-417-06) Appeal from 151 A.C.W.S. (3d) 17; 56 Imm. L.R. (3d) 220; 145 C.R.R. (2d) 8 al- lowed. Order No. 007/324/049 (45 pp.). Industrial And Intellectual Property PATENTS Not plain and obvious that defendants could not succeed on issue of "inventorship" Defendants appealed decision of motion judge to strike paragraphs from defence and counterclaim pertaining to issue of "inventor- ship." Motion judge found that where conflicting claims to "in- ventorship" of patent had been directed by Commissioner of Patents it was not open to third parties to challenge validity on this ground. Appeal allowed. It was not "plain and obvious" that defendants could not succeed on issue of "inventorship" raised in impugned paragraphs. Question was whether interpretation of statutory provision was foregone conclusion. Defendants' inter- pretation not devoid of merit. Laboratoires Servier v. Apotex Inc. (Nov. 1, 2007, F.C.A., Nadon, Sexton and Sharlow JJ.A., File No. A-364-07) Appeal from 160 A.C.W.S. (3d) 617 allowed. Order No. 007/324/048 (22 pp.). FEDERAL COURT Constitutional Law CHARTER OF RIGHTS No requirement under s. 4(1) of Official Languages Act (Can.) for committee to distribute documents to members in one official language Appellant appeared before House of Commons committee on Canadian heritage to testify as specialized lawyer on matters related to copyright reform. Pri- or to his appearance he sent four documents to committee's clerk requesting distribution to mem- bers but committee members decided not to allow for distribu- tion of documents because they were in English only. Appellant brought application pursuant to Part X of Official Languages Act (Can.), but applications judge dismissed application. Appeal dismissed. There was no requirement under s. 4(1) of Official Languages Act for com- mittee to distribute documents to members in one official lan- guage. Applications judge's find- ing that appellant's request that his documents be circulated did not fall within parameters of s. 4(1) of Official Languages Act was correct. Right to use offi- cial language of choice did not include right to impose on com- mittee immediate distribution and reading of documents filed to support one's testimony. Knopf v. Canada (Speaker of the House of Commons) (Nov. 5, 2007, F.C., Decary, Linden and Trudel JJ.A., File No. A-402-06) Appeal from 149 A.C.W.S. (3d) 1134; 144 C.R.R. (2d) 155; 295 F.T.R. 198 dismissed. Order No. 007/324/039 (17 pp.). Prisons INMATES' RIGHTS Complaint process not effective to deal with review of decision to leave doors to temporary detention unit open Application by the applicants for judicial review of the respon- dent's decision to leave the doors open to a penitentiary temporary detention unit in order to venti- late it. Unit housed parolees who were returned to custody because of parole violations. Applicants were former residents of the unit with the exception of one of them who remained there. They claimed that because of the cold in the unit and the respondent's inability to provide extra blan- kets, the respondent violated its legal obligation to provide a safe and healthy environment for in- mates as required by the Correc- tions and Conditional Release Act (Can.) and its regulations. Respondent argued that the court should decline to hear this application because of the exis- tence of a grievance procedure. Application allowed. Evidence indicated that the respondent failed to meet its obligation to provide a safe and healthy en- vironment for inmates. While this order was in effect the re- spondent was prohibited from allowing the temperature at the unit to drop below 20 degrees Celsius between the hours of 8 a.m. and 12 midnight and 16 degrees Celsius between the hours of 12 midnight and 8 a.m. Applicants' complaint had to be resolved quickly because there were potential health is- sues. Internal complaints pro- cess was not adequate because priority complaints could take up to six months to resolve and at least 12 weeks to process. It was not timely and effective. There were also no assurance that the complaint would be acted upon. This was a proper case from departing from the complaint process. Gates v. Canada (Attorney Gener- al) (Oct. 16, 2007, F.C., Phelan J., File No. T-2284-06) Order No. 007/297/048 (21 pp.). 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