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PAGE 18 be allowed to claim damages incurred within period. On consent, paragraphs ordered reinstated to extent that they referred to damages incurred within period. Appeal will be dismissed with respect to Teva's claims for damages incurred outside relevant period. Sanofi-Aventis Canada Inc. v. Novopharm Ltd. (Nov. 30, 2010, F.C., Simpson J., File No. T-1161-07) Decision at 185 A.C.W.S. (3d) 59, 81 C.P.R. (4th) 285 was reversed in part. 196 A.C.W.S. (3d) 65 (22 pp.). Constitutional Law CHARTER OF RIGHTS Duty of fairness did not require granting of adjournment Removal orders were issued against each of applicants. Ap- plicants argued s. 44 of Immi- gration and Refugee Protection Act (Can.), breached s. 7 of Ca- nadian Charter of Rights and Freedoms. Applicant argued respondent breached duty of fairness owed to applicants by failing to grant adjournment. Application for judicial review was dismissed. Procedure laid out in s. 44 of Act did not vio- late constitutional principle of separation of powers. There was no breach of s. 7 of Charter. Decisions were not set aside for lack of institutional indepen- dence simply because individu- al who adjudicated report and individuals who created report worked in same department. Duty of fairness did not re- quire granting of adjournment. Substance of decision did not require respondent to consider humanitarian and compassion- ate factors. It was not necessary to consider issues relating to practicability of removal. Ap- plicants were afforded fair pro- cedure. Rosenberry v. Canada (Minister of Citizenship and Immigration) (Sep. 8, 2010, F.C., O'Keefe J., File No. IMM-4042-09) 196 A.C.W.S. (3d) 518 (20 pp.). Evidence WITNESSES Motion to quash subpoenas and production requests issued in security certificate proceedings allowed in part Motion by Minister for order quashing subpoenas and pro- duction requests issued by respondent in security cer- tificate proceedings and order that no further subpoenas be issued without leave. Minister argued proposed witnesses did not have relevant evidence, Ministers were protected by Parliamentary privilege, Senior General Counsel's evi- dence was protected by solic- itor-and-client privilege and documents sought by respon- dent were not reasonable. Parties agreed to substitute witnesses on behalf of those subpoenaed on behalf of CSIS and CBSA. Motion allowed in part. Ministers were clearly subject to Parliamentary privi- lege as Parliament was still in session, even though it was not sitting over holiday season and did not have to appear. Senior General Counsel in the National Security Law, Public Safety Defence and Immigration Portfolio with Department of Justice pre- pared letter to address defi- ciencies in other security cer- tificate proceedings. However, this letter was a public com- munication, not a letter between solicitor-and-client, so privilege did not apply. Counsel was to appear as wit- ness. However, the request he provided human source evi- dence was unreasonable as Ministers did not place any reliance on it in case against respondent. Counsel was to produce any documentation about follow up action by the Service. Former Assistant Di- rector of CSIS likely had rel- evant information, especially on abuse of process motion, so was to appear. Witnesses parties agreed to substitute were not required to make production sought, as documentation was currently before prothonotary and it was abusive to seek pro- duction of same documents by way of duces tecum. All sub- poenas should have been issued by now, so no further subpoe- nas were to be issued without leave. Mahjoub (Re) (Nov. 26, 2010, F.C., Blanchard J., File No. DES-7-08) 196 A.C.W.S. (3d) 412 (14 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS There was no inconsistency between verdicts Appeal by accused from his convictions. Accused was charged with sexual assault, unlawful confinement, uttering death threat, uttering threat to cause bodily harm and choking with intent to assist in com- mitting sexual assault. He was convicted of first four charges. Appeal dismissed. Trial judge did not misapprehend signifi- cant portions of trial evidence with respect to three areas that materially contributed to guilty verdicts. Accused claimed that since complainant's allegation that he choked her was inte- gral part of her sexual assault narrative, acquittal for choking and conviction for sexual as- sault were inconsistent verdicts. Submission was rejected. Judge did not reject complainant's evidence about choking but he found, based on her evi- dence that accused did not ap- ply much pressure when he put his hands on her throat, that it did not assist in commission of sexual assault because it was not integral part of that offence. In such circumstances there was no inconsistency between verdicts. Judge did not fail to adequately consider defence theory. R. v. Manowar (Dec. 14, 2010, Ont. C.A., MacPherson, Sim- mons and Gillese JJ.A., File No. CASELAW C50997; C51188) 91 W.C.B. (2d) 662 (8 pp.). SENTENCE APPEAL Accused's sentence for offences including sexual assault and unlawful confinement was unfit Appeal by Crown from sen- tence imposed on accused after he was convicted of sexual as- sault, unlawful confinement, uttering death threat and utter- ing threat to cause bodily harm. Accused was sentenced to con- ditional sentence of two years less one day, to be followed by three years of probation. Appeal dismissed. Sentence was unfit. It represented substantial and marked departure from sen- tences for offences of this sort. It also failed to give appropri- ate effect to general deterrence and denunciation. However, it was not in public interest at this point to incarcerate accused. He served 14 months under strict house arrest. House arrest followed period of three years in which accused was subject to seriously restrictive bail con- ditions. Incarceration would impose considerable hardship on accused's wife, children and mother. Moreover and very significantly, fresh evidence showed that accused was in seri- ous multi-car accident that left him with ongoing injuries that required continued rehabilita- tion. He expected to be called as prosecution witness at trial of two of other drivers involved in accident. R. v. Manowar (Dec. 14, 2010, Ont. C.A., MacPherson, Sim- mons and Gillese JJ.A., File No. C50997; C51188) 91 W.C.B. (2d) 662 (8 pp.). Constitutional Law VALIDITY OF LEGISLATION Section 229(c) of Criminal Code not unconstitutional Application by two accused for order declaring s. 229(c) of Criminal Code to be of no force and effect because it vio- lated ss. 7 and 11(d) of Cana- dian Charter of Rights and Freedoms. Gunfight that broke out at birthday party between members of two rival gangs resulted in death of innocent 11-year old boy. It was unclear who fired fatal shot. Accused were ordered to stand trial for second degree murder, under s. 229(c). Section 229(c) provided that culpable murder was mur- der where person, for unlaw- ful object, does anything that he knows, or ought to know, was likely to cause death and thereby causes death to human being, notwithstanding that he desires to effect his object with- out causing death or bodily harm to any human being. Ac- cused claimed that s. 229(c) violated Charter because it per- mitted convictions for murder where Crown failed to prove beyond reasonable doubt that accused intended to cause death or that they intended to cause deceased bodily harm that they knew was likely to cause death. Section 229(c) impermissibly substituted essential element, intention contained in s. 229(a) www.lawtimesnews.com with commission of danger- ous act and recklessness as to whether death ensued where death was subjectively foresee- able. This was constitutionally impermissible substitution be- cause it violated principle of fundamental justice that person who killed intentionally should be punished more severely than person who killed someone un- intentionally. Section 229(c) imposed same stigma and pen- alty on unintentional killers as those who were intentional killers under s. 229(a) and (b). It therefore violated constitu- tional requirement that stigma and punishment must be pro- portionate to moral blamewor- thiness of offender. Application dismissed. Subjective foresee- ability of death was principle of fundamental justice that had to exist in definition of murder in order to have proportion- ate relationship between moral blameworthiness of act with stigma and punishment asso- ciated with murder conviction for fact. Section 229(c) did not violate s. 7 because it expressly required subjective foreseeabil- ity of death as part of mens rea of that definition of murder. Alternatively, if constitutional minimum to establish requisite degree of proportionality be- tween moral reprehensibility of act and stigma and punishment associated with murder con- viction for act was not subjec- tive foreseeability of death but, rather, mens rea required by s. 229(a), or appropriate substi- tuted mens rea, s. 229(c) did not violate s. 7 because its sub- stituted mens rea met require- ment of proportionality. R. v. Sappleton (Nov. 16, 2010, Ont. S.C.J., Trafford J.) 91 W.C.B. (2d) 686 (24 pp.). Evidence ADMISSIBILITY Expert opinion evidence about gangs admitted in part Application by Crown to admit expert opinion evidence about gangs. Several accused charged with first and second degree murder in connection with gang-related incident. Accused alleged to be affiliated with known gangs. Number of shots fired may have exceeded 15 and number of shooters may have been as high as seven or eight. There was no evidence identify- ing any of shooters except one eyewitness. There is no evidence of who fired first shot or about sequence of shots. Detective qualified to give expert testimo- ny on presence of urban gangs in Toronto. Expert was police- man in Toronto who has de- veloped significant knowledge about some aspects of gangs. Detective's expertise included purpose and existence of gangs, territoriality of street gangs, membership in gangs, hierarchy within gangs, history of tension among gangs, language used by street gangs and code of silence mandated by gangs. Evidence admitted in part. Evidence was reliable and necessary to explain motives of those involved. Pro- bative value of evidence exceed- ed prejudicial effect. Detective's February 28, 2011 • Law Times evidence can only include likeli- hood of certain aspects of gang affiliation and not absolutes. Evidence also may not include intercepted communications or information for confidential in- formants. R. v. Sappleton (Oct. 25, 2010, Ont. S.C.J., Trafford J.) 91 W.C.B. (2d) 699 (120 pp.). Preservation Of Life FAILURE TO PROVIDE NECESSARIES Accused aware of child's condition and offered no lawful excuse for not taking him to hospital sooner Accused couple was charged with aggravated assault, en- dangering life and failure to provide necessaries of life to their child born in 2004. Child arrived in Canada in 2006 af- ter living with his grandpar- ents. Experts described inju- ries and scars to child's chest, arms, shoulders, legs, flanks, back, anus and upper thigh. He had healed broken bone in his hand and broken fibula but doctors could not date when injuries occurred. Child was brought to hospital in 2007 after suffering a surgery. Child made hearsay statements to his subsequent foster mother that he did not want to live with "bad man" and "bad lady". Ex- pert testimony suggested many scars were due to burning. All doctors agreed that when child arrived at hospital he was mal- nourished, anemic, had vita- min C levels consistent with scurvy, three open wounds and scarring all over his body. Wife had brought child to hospital however husband told police he knew of child's condition at least one month previous to that date. Accused guilty of failing to provide necessar- ies only. There was insufficient evidence to convict on aggra- vated assault as Crown failed to prove timeline as to when injuries occurred. Evidence was clear however that when child arrived at hospital that he suffered from such neglect that could only have been caused by failing to provide necessar- ies of life. Both accused were aware of child's condition and offered no lawful excuse for not taking him to hospital sooner. There was insufficient evidence to prove that child's life was en- dangered. R. v. J. (S.) (Dec. 1, 2010, Ont. S.C.J., Lemon J., File No. CRIMJ (P) 2561/08) 91 W.C.B. (2d) 722 (36 pp.). Prosecutor AUTHORITY TO PROSECUTE No reasonable apprehension of bias or appearance of conflict of interest if Crown prosecuted case against accused Application by accused for order prohibiting any Crown counsel employed by Ontario Ministry of the Attorney General from having carriage of any crimi- nal charges that were pending against him. In June 2010 ac- cused was charged with number of offences in relation to violent