Law Times

Law Times • March 30, 2015 Page 27 www.lawtimesnews.com customs officers whether strip search had been conducted and whether second search was nec- essary. Suspicion that drugs may be hidden somewhere else did not validate conducting strip search. There were no reason- able grounds for second search since accused was in custody from time of first strip search and would not have had oppor- tunity to acquire or hide on her person any other contraband. Strip search was unreasonable and violated accused's s. 8 Char- ter rights. Given facts of case, es- pecially circumstances and tim- ing of bringing of application, stay was not justified. While accused's statement was taken shortly after search, it was not causally connected to search. Strip search and accused's state- ment were integral part of same transaction, there existed tem- poral connection, and s. 24(2) Charter analysis was appropri- ate. Charter-infringing conduct was very serious, as strip search was very significant violation of right to privacy and accused's right to be protected from un- reasonable search. Given that accused had attempted to re-en- ter Canada with cocaine on her person, impact of breach was less significant. Breach did not impact on accused's demeanour or attitude when her statement was recorded. If statement was excluded, Crown still had case. There was heightened interest in prosecution of this case. Seri- ousness of breach overwhelmed other two considerations that favoured admission of statement. Actions of officers in relation to second search, while not inten- tional, ref lected troubling lack of knowledge of law and principles to be applied to strip searches. While public had interest in ad- judication of case on its merits, educated public would have de- manded better police practices. Breach was so significant that accused's recorded statement ought to have been excluded. As statement had already been viewed by jury, only recourse was to declare mistrial. R. v. Foster (Dec. 12, 2014, ont. s.C.j., Thomas A. Bielby J., File No. Crim J(F) 296/13) 118 W.C.B. (2d) 489. EQUALITY RIGHTS Officer used accused's ethnicity as factor to detain and question him Accused, charged with posses- sion of oxycodone for purpose of trafficking and breach of recognizance, applied for ex- clusion of evidence. Accused attempted to board domestic f light from Ottawa to Thun- der Bay. Despite having cleared four separate security screens, accused's checked luggage was opened and physically searched revealing 4,504 oxycodone tablets. Ticket agent described accused as being nervous and looking around as if he were be- ing watched, so she contacted security. With respect to de- fence's position that ethnicity was factor in physical search of accused's bag, officer denied al- legation, stating that accused's ethnicity was not known to him and that it was strictly concerns of ticket agent that had caused bag to be opened and searched. However, during cross-exami- nation officer admitted that fact that accused was born in Kabul added to his concern about se- curity, explaining that Afghani- stan had been in 10-year war with Canada. Officer who first got involved had notes which in- dicated that when he met ticket agent he was told by her that she had suspicions about "Middle Eastern male" who was sweat- ing, had paid cash for one-way ticket, and who was acting in nervous fashion. This directly contradicted evidence of ticket agent and officer who actually searched bag who stated that ticket agent made no mention of ethnicity when describing individual. Application allowed; evidence excluded. State agents were improperly motivated by racial profiling when they took final step of conducting physi- cal search of accused's luggage. There was direct evidence that officer who searched accused's suitcase used accused's ethnicity as factor to detain and question him. That officer also testified that he held no subjective belief that accused was engaged in any criminal activity. Second officer assisted in search of accused's luggage despite luggage passing four security clearances. Logical inference explaining actions of those two officers was that their concern about accused's lug- gage was based on stereotypical assumptions about his race and ethnicity. Security manager's statement that she was going to physically search accused's bag "no matter what" suggested that she was motivated by fact that accused was from Middle East. Security manager's evidence was that she immediately thought about Air India terrorist bomb- ings. Sections 7 and 15 breaches resulting from state agents' ra- cial profiling were very serious and undermined core values of human dignity and equality vi- tal to democratic society. R. v. Neyazi (Dec. 18, 2014, ont. s.C.j., Patrick Smith J., File No. CR-12-20062) 118 W.C.B. (2d) 490. Evidence SIMILAR FACTS Trial judge's response to jury question was correct, albeit less direct than it might have been Accused appealed conviction for sexual assault, invitation to sexu- al touching, and sexual exploita- tion. Two complainants were fos- ter children in accused's home. Accused argued that trial judge erred in admitting similar fact evidence, erred in failing to ad- equately caution jury about sig- nificance of one complainant's knowledge of prior complaints, erred in failing to adequately re- spond to question from jury, and erred in failing to enter Kienap- ple stays on two of three counts in relation to each complainant. Appeal allowed, in part. There was no evidence of actual collu- sion. Trial judge grounded her ruling on admissibility of similar fact evidence in specific, almost unique, details among complain- ants' accounts. Knowledge of fact of prior allegations by one com- plainant did not include disclo- sure of specifics. Trial judge did not err in admitting similar fact evidence. Trial judge recognized need to caution jury on effect of tainting on their assessment of and reliance upon evidence of one of complainants. While jury instructions on issue could have been more extensive, they were adequate to bring home to jury that they had to consider that complainant's knowledge of pri- or abuse complaints in assessing value of her evidence. Given that evidence went no further than that one complainant knew that other complaints had been made, there was little more that could have been said that would have assisted accused. Trial judge's response to jury's question was correct, albeit less direct than it might have been. No objection was taken by trial counsel for ac- cused to judge's response to jury's question. Stays were entered on counts charging sexual assault in relation to each complainant. R. v. M. (R.) (Jan. 7, 2015, ont. C.a., Doherty J.A., Paul Rouleau J.A., and David Watt J.A., File No. CA C55884) 118 W.C.B. (2d) 562. Motor Vehicles IMPAIRED DRIVING AND OVER 80 Trial judge did not err in admit- ting description of driver even though it was hearsay Accused appealed his convic- tions for impaired driving and driving over 80. Only issue at trial was whether accused's iden- tity as driver of vehicle involved in accident had been established. Witness was stopped at intersec- tion when his vehicle was clipped by silver van which was making turn at intersection. When driver of van did not stop, witness fol- lowed silver van which entered nearby driveway. Witness called police on his cell phone and watched while driver exited van and entered residence. Witness was parked 30 to 35 feet away from van when he made observa- tion of driver. There was no one else in van. Witness told 9-1-1 op- erator that he thought driver of van had been drinking because beer can fell out of van. Two po- lice officers arrived within short time. One of them took descrip- tion of driver of van from witness who had remained parked across street. When police knocked at door of residence accused came to door with older man and fe- male. Accused matched descrip- tion given to police by witness just moments before and was arrested and taken to police sta- tion for breath testing. Accused was obviously impaired. While in custody, accused told police that he arrived home in his van that day at 6:30 p.m., that no one else had driven his van that day and that no one else ever drove his van. When witness testified he explained that as result of passage of time his memory had faded and he was unable to iden- tify driver. Witness was also un- able to recall driver's description beyond that driver was tall East Indian male wearing pants and shirt. Appeal dismissed. Court found trial judge did not error in admitting witness' prior de- scription of driver even though it was hearsay. Accused submitted that trial judge erred in treating accused's statement that he was only person who drove van as ad- mission that he was driver at time of accident but court rejected this submission. Trial judge used ac- cused's statement to eliminate possibility that anyone else had driven van. It was clear that trial judge treated accused's statement as critical piece of circumstantial evidence and not as direct ad- mission that accused was driver at time of accident. In context of other evidence accused's state- ment that no one else drove van was tantamount to admission. R. v. Dhaliwal (Jan. 12, 2015, ont. s.C.j., F. Dawson J., File No. SCA(P)0001/14) 118 W.C.B. (2d) 519. SUPREME COURT OF CANADA Competition Law MERGERS No more than marginal efficiency gains required for efficiencies defence to apply Oil and gas operations in north- eastern B.C. produce hazardous waste, generally disposed of in secure landfill. Four permits for dedicated landfill operations is- sued; two held by Tervita, which operates two landfills, one for Peejay site, not yet constructed, and one for Babkirk site. BLS, owner of Babkirk, retained firm to prepare documentation to apply for secure landfill permit. At same time, individual re- spondents (Vendors) negotiated agreement to purchase shares of BLS. Shortly prior to issuance of Environmental Assessment Certificate for Babkirk secure landfill, Vendors acquired shares of BLS through Complete Envi- ronmental. Vendors, intending to operate Babkirk site primarily as bioremediation facility, subse- quently sold shares in Complete to Tervita. Commissioner ap- plied to Tribunal pursuant to s. 92 of Competition Tribunal Act (Can.), for order that transac- tion be dissolved on ground it was likely to prevent competi- tion. Tribunal found that quan- tified anti-competitive effects of merger exceeded quantified gains in efficiency and ordered Tervita to divest itself of BLS shares. Appeal by Tervita, Com- plete and BLS to Federal Court of Appeal dismissed but further appeal allowed. There was suf- ficient evidence upon which Tribunal could find that merger would be likely to substantially prevent competition. In order for Tribunal to make most objective assessment possible in efficien- cies analysis, Tribunal should consider all available quantitative and qualitative evidence. Com- missioner failed to meet s. 96 of Act burden to quantify quanti- fiable anti-competitive effects; possible range of deadweight loss resulting from merger was un- known due to lack of price elas- ticity information. Those quan- tifiable anti-competitive effects, therefore, should be assigned zero weight. Federal Court erred by allowing for subjective judg- ment to overtake analysis in setting weight of these effects at undetermined. Also unfair to require merging parties to dem- onstrate that efficiency gains exceed and offset undetermined amount. Section 96 of Act does not require more than marginal efficiency gains for efficiencies defence to apply. Federal Court of Appeal erred in finding that anti-competitive merger could not be approved under s. 96 of Act if only marginal or insig- nificant gains in efficiency result from that merger. Weight given to quantifiable effects is zero and there were no proven qualitative effects. Tervita made out effi- ciencies defence by establishing overhead efficiency gains result- ing from BLS obtaining access to Tervita's administrative and operating functions. Commissioner of Competition v. CCS Corp. (Jan. 22, 2015, s.C.C., McLachlin C.J.C., Abella J., Roth- stein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 35314) Decision at 226 A.C.W.S. (3d) 719 was reversed. 248 A.C.W.S. (3d) 811. LT CASELAW

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