Law Times

Law Times • June 13, 2011 ONTARIO CIVIL CASES Appeal STAY PENDING APPEAL Stay pending appeal of decision striking down Criminal Code (Can.) provisions criminalizing aspects of prostitution, granted Government moving for stay pending appeal of decision strik- ing down Criminal Code (Can.), provisions criminalizing aspects of prostitution. Application judge fi nding Criminal Code provisions prohibiting bawdy- houses, living on avails and communication for purpose of prostitution contributed to dan- gerous working environment for prostitutes. Government submit- ting decision creates regulatory void that hampers investigation and deterrence of serious off enc- es exploiting prostitutes. Motion granted, decision stayed pending appeal. Government established irreparable harm through evi- dence that impugned provisions used to investigate and prevent serious harms associated with prostitution. Public interest fa- voured stay of decision pending appeal due to lack of regulatory framework and social programs to prevent harms associated with prostitution. Balance of conve- nience favoured stay of decision as government demonstrated harm in absence of any regula- tion of prostitution. Bedford v. Canada (Attorney General) (Dec. 2, 2010, Ont. C.A., Rosenberg J.A., File No. M39380 (C52799)) Order No. 010/356/025 (42 pp.). Conflict Of Laws SERVICE EX JURIS Motion judge erred in concluding Ontario court should not assume jurisdiction of libel action Th is was appeal of motion judge's decision granting order to set aside service ex juris. Ap- pellant was Ontario resident who published book. Respon- dent association and respondent board published book review of appellant's book in academic journal, Slavic Review, that was published in United States. Re- view was written by L.C. who resided in Australia. Journal was distributed outside United States, including in Ontario. Appellant claimed that book review defamed him, damaged reputation and prevented him from further advancing in aca- demic career. Appellant com- menced libel action in Ontario against respondents. Motion judge concluded that Ontario court should not assume juris- diction on basis that there was real and substantial connec- tion between Ontario and ac- tion and that Ontario was not convenient forum to try action. Appeal allowed. Alleged libel, if proven, was tort committed in Ontario and raised presump- tion of jurisdiction. Real and substantial connection was presumed to exist and respon- dents bore burden of rebutting presumption. Focus should be on connections between both plaintiff 's claim and Ontario and defendants and Ontario. Th ere was ample evidence of substantial connection between appellant's claim and forum and relevant connection in libel context between respondents and forum. Th ere was no other forum where it would be more just or convenient to try action. Ontario had jurisdiction over action. Paulsson v. Cooper (Feb. 28, 2011, Ont. C.A., Rosenberg, Goudge and Feldman JJ.A., File No. C50917) Decision at 184 A.C.W.S. (3d) 12 was reversed. Order No. 011/060/056 (23 pp.). Damages MITIGATION Whether refusing to have abortion unreasonable and, therefore, a failure to mitigate, was question of mixed fact and law to be determined at trial. Plaintiff obtained order and dec- laration on preliminary ques- tion of law that she had no legal obligation or duty to terminate second-trimester pregnancy in order to mitigate her claim for damages in wrongful birth ac- tion. Defendant physician's ap- peal allowed. Pure question of law raised was whether woman can ever be required to mitigate claim for damages in wrongful birth action by having abor- tion. Th is important issue of law raises signifi cant policy consid- erations better determined on full factual record after trial. In any event, motion judge asked to determine whether, on facts as pleaded, case constituted ex- ceptional circumstance where court might fi nd that refusing to have abortion unreasonable and, therefore, failure to mitigate. Th is was not question of law but question of mixed fact and law to be determined at trial. Leek v. Viadyanathan (Jan. 20, 2011, Ont. C.A., Weil- er, Blair and Epstein JJ.A., File No. C52443) Order No. 011/024/071 (3 pp.). Sale Of Land MISREPRESENTATION Latent defect. Th is was applica- tion to dismiss action on basis that it disclosed no reasonable cause of action. Plaintiff s were husband and wife and were par- ents of two young children. Th ey purchased house from defen- dants. Plaintiff s discovered that person convicted under child pornography provisions of Crim- inal Code (Can.), lived across street. Defendants were aware of that fact and knew plaintiff s had young children but did not disclose that to plaintiff s. Plain- tiff s brought action. Application dismissed. Plaintiff s' claim was novel and it raised policy issues. It was not plain and obvious that seller of house did not have to disclose to purchaser with young children fact that was common knowledge in neighbourhood that convicted sex off ender lived across street. Dennis v. Gray (Mar. 11, 2011, Ont. S.C.J., Hoy J., File No. CV-10-00409237-0000) Order No. 011/080/014 (8 pp.). CASELAW ONTARIO CRIMINAL CASES Appeal FRESH EVIDENCE Accused charged with sexual as- sault and administering stupefying drug. Crown alleged that accused invited complainants to wine sur- vey and served wine spiked with GHB before sexually assaulting complainants. Police seized two wine bottles from accused's busi- ness and expert testifi ed that one bottle contained traces of GHB. On appeal, accused tendered fresh evidence that GHB occurs natu- rally in all red wine. Accused's ap- peal from conviction allowed and new trial ordered. Evidence that GHB occurs naturally in wine and that it occurred naturally in the brand and vintage of bottles seized by police could reasonably be expected to have aff ected the verdicts. R. v. O. (A.) (Feb. 25, 2011, Ont. C.A., Moldaver, Cronk and Lang JJ.A., File No. C43725) Order No. 011/059/315 (12 pp.). Charter Of Rights ENFORCEMENT OF RIGHTS Accused charged with possession of cocaine for purpose of traf- fi cking. Accused's truck stopped by Ministry of Transportation offi cer. Accused told offi cer that he had been forced to put ob- jects in his trailer at gunpoint. Offi cer contacted police and to- gether they searched trailer and discovered bales of cocaine. Po- lice relied on transportation offi - cer's regulatory powers of search to conduct warrantless search of trailer. At trial Crown, conceded s. 8 Charter breach. Trial judge excluded the seized evidence pursuant to s. 24(2). Crown's appeal from accused's acquittal allowed and new trial ordered. Trial judge erred in holding that Crown bore onus on s. 24(2) inquiry concerning a warrant- less search. Trial judge erred in fi nding that criminal law pur- pose for search would invalidate concurrent legitimate regulatory purpose. Trial judge failed to consider accused's minimal ex- pectation of privacy in trailer he did not own. R. v. Sandhu (Feb. 11, 2011, Ont. C.A., O'Connor A.C.J.O., Simmons and Watt JJ.A., File No. C51140) Decision at 85 W.C.B. (2d) 118 reversed. Or- der No. 011/045/113 (25 pp.). FREEDOM OF RELIGION Accused charged with posses- sion and traffi cking in cannabis. Accused claiming freedom of religion contravened by prohibi- tions against possession and traf- fi cking. Accused belonging to cantheistic religion where mari- juana use a sacrament and aspect of worship. Crown claiming prohibitions on possession and traffi cking required to further objective of preventing harm to vulnerable individuals from can- nabis use. Application dismissed. Accused only had standing to ad- www.lawtimesnews.com vance personal claim of religious freedom, not claims on behalf of all other cantheistic religions. Accused establishing use of can- nabis partly related to sincerely held religious belief. Prohibi- tions on traffi cking and cultiva- tion of cannabis contravened re- ligious freedom as accused could not legally obtain cannabis for religious use. Limit on freedom of religions reasonable within meaning of s. 1 of Charter. Leg- islative provisions rationally con- nected to achieving objective of avoidance of harm to Canadians from cannabis use. Limit pro- portional as no feasible way to al- low for religious use of cannabis as religious use indistinguishable from recreational use to outside observer. R. v. Kharaghani (Feb. 7, 2011, Ont. S.C.J., Herman J., File No. 1-597294) Order No. 011/039/095 (67 pp.). Evidence IDENTITY OF ACCUSED Accused convicted of two armed robberies of retail establishments. Eyewitnesses unable to identify accused in photographic line- ups. Two eyewitnesses making tentative "in dock" identifi ca- tions of accused. Crown relying on circumstantial evidence other than eyewitness identifi cation to prove case. Trial judge instruct- ing jury to be cautious when considering "in dock" identifi ca- tions though may have probative value. Appeal from convictions dismissed. Trial judge should have given stronger caution to jury about virtually worthless "in PAGE 15 dock" identifi cations. Defi ciency in jury charge not amounting to legal error as Crown relied pri- marily on evidence other than identifi cation at trial. R. v. Manley (Feb. 14, 2011, Ont. C.A., Winkler C.J.O., Sharpe and Karakatsanis JJ.A., File No. C50195) Order No. 011/046/044 (26 pp.). Terrorism OFFENCES Accused pleaded guilty to act- ing with intent to cause explo- sion in association with terrorist group. 19-year old accused took part in plot to detonate bombs at three major public buildings. Accused bought bomb compo- nents and rented storage area to store them. Accused was moti- vated by extreme religious beliefs. Sentencing judge finding accused was remorseful and was no longer danger to the public. Sentencing judge imposing seven year sen- tence in addition to seven years' credit for pre-sentence custody. Crown appeal allowed and sen- tence increased to 13 years with order that accused serve one half of his sentence before eligibility for full parole. Sentencing judge overemphasized rehabilitation. In light of unique nature of terrorism offences, accused's youth and lack of prior record entitled to reduced weight. Appropriate range of sen- tence would have been 20 to 25 years' imprisonment. R. v. Khalid (Dec. 17, 2010, Ont. C.A., Doherty, Moldaver and Cronk JJ.A., File No. C51062) Decision at 91 W.C.B. (2d) 53 varied. Order No. 010/354/212 (25 pp.). When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? 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