Law Times

Law Times • June 6, 2011 FREEDOM OF EXPRESSION Rules infringing freedom of expression, but reasonable and justified Rules of practice and directive issued by Ministere de la Jus- tice limiting fi lming, taking photographs and conducting interviews to predetermined lo- cations in courthouses and pro- hibiting broadcasting of offi cial audio recordings of court hear- ings. Impugned measures in- fringing freedom of expression, but reasonable and justifi ed. Societe Radio-Canada v. Que- bec (Procureur General) (Jan. 28, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Des- champs, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 32920) Decision from 84 W.C.B. (2d) 878 affi rmed. 93 W.C.B. (2d) 603 (62 pp.). Trial CHARGE TO JURY Trial judge's answer to jury was clear and helpful Accused charged with second degree murder. Sole issue at trial was whether accused was guilty of murder or manslaugh- ter. Jury asked question about diff erence between murder and manslaughter and requested defi nition of manslaughter with examples. Trial judge explained diff erence in intents for murder and manslaughter but did not defi ne manslaughter or give ex- amples. Jury convicted accused of murder. Majority of Court of Appeal dismissed accused's ap- peal from conviction. Accused's further appeal dismissed. Trial judge's answer to jury was clear and helpful. No reasonable pos- sibility that jury misunderstood what had to be proved for con- viction for murder. R. v. Miljevic (Feb. 16, 2011, S.C.C., McLachlin C.J.C., De- schamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33714) Decision from 87 W.C.B. (2d) 671 reversed. 93 W.C.B. (2d) 670 (15 pp.). FEDERAL COURT Immigration PERSON IN NEED OF PROTECTION Sections 96 and 97 of Immigration and Refugee Act (Can.) must be considered distinctly, even if factual matrix same Application for judicial review of decision that applicants were not Convention Refugees or per- sons in need of protection. Ap- plicants were citizens of Mexico who alleged fear of criminal or- ganization, Z.. Board conclud- ed that applicants had failed to rebut presumption of state pro- tection and did not take all rea- sonable steps to avail themselves of state protection in Mexico. Applicant contended that board member erred in failing to ad- dress applicability of ss. 96 and 97 of Immigration and Refugee Protection Act (Can.). Applica- tion granted. Board mentioned in general terms that it had considered claim under ss. 96 and 97 of Act, however, no analysis was presented in this respect. Board Member noted that s. 96 nexus grounds were to be analyzed in regard to Z. Or- ganization, however, decision was silent on this issue. Sections 96 and 97 are distinct grounds for protection and must be con- sidered distinctly, even if factual matrix may well be same. Here, even after member's claim that s. 96 nexus ground would be con- sidered, reasons did not speak to Convention nexus at any given point. Meza v. Canada (Minister of Citizenship and Immigration) (Mar. 10, 2011, F.C., Noel J., File No. IMM-4267-10) 199 A.C.W.S. (3d) 914 (9 pp.). Intellectual Property Industrial And COPYRIGHT Use of programs after expiration of license did not amount to breach of copyright Action by plaintiff for relief for copyright infringement. Defen- dant was trucking company that wished to upgrade its computer dispatch and invoice software. Plaintiff 's principal was com- puter programmer who incor- porated plaintiff to eff ect this transaction. Principal created programs for defendant using Microsoft Access database plat- form. Main program consisted of fi ve modules but four had previously been completed for other customer while working for diff erent company. Plaintiff licensed main program to de- fendant but had to make various modifi cations to get program to work properly. Plaintiff created two smaller programs for defen- dant and licensed them sepa- rately. Defendant paid plaintiff extra fee to maintain its soft- ware on ongoing basis. Plaintiff made various additions, modi- fi cation, and repairs, and also created new modules. Parties' relationship deteriorated and principal modifi ed defendant's software to become ineff ective on two occasions. Defendant corrected software and con- tinued to use and update it for several years before replacing it. Action dismissed. Plaintiff was not owner of copyright in most of main program since A Inc. was rightful owner. One smaller program and various additions, modifi cations, and repairs were not suffi ciently original to be protected by copyright so no in- fringement could arise. Second smaller program and two new modules for main program were protected by copyright and were owned by plaintiff but plaintiff failed to establish infringement. Defendant had not breached license agreements, though al- leged breaches of license agree- ments would not have equated to breach of copyright in any event. Use of programs after expiration of license did not amount to breach of copyright since no additional copies were made except for use in this pro- ceeding. Making modifi cations did not in itself amount to mak- ing copies. Making backup cop- ies before making modifi cations CASELAW was something that was permit- ted under license agreement. Us- ing Microsoft Access to access programs' underlying code did not amount to infringement. Using newer version of Micro- soft Access to run programs did not amount to infringement. Is- sues relating to moral rights had not been pleaded. Harmony Consulting Ltd. v. G.A. Foss Transport Ltd. (Mar. 18, 2011, F.C., Heneghan J., File No. T-1269-05) 199 A.C.W.S. (3d) 935 (89 pp.). ONTARIO CRIMINAL CASES Appeal APPLICATION APPEAL Counsel appointed to represent accused on appeal from conviction on two counts of first degree murder Accused applied to have coun- sel appointed to represent him on his appeal and to have coun- sel's fees and disbursements paid by Attorney General for Ontario. Accused was convict- ed before judge and jury on two counts of fi rst degree murder. Accused's defence was that he was provoked by victims and that he should be convicted of manslaughter not murder. Crown's theory was that this was planned and deliberate honour killing. Application granted. Accused's theory of defence presented novel and complex issue. Accused did not possess English language skills to adequately represent himself on appeal. R. v. Sadiqi (Mar. 23, 2011, Ont. C.A., Winkler C.J.O. in Chambers, File No. C51399; M39733) 93 W.C.B. (2d) 586 (6 pp.). Charter Of Rights RIGHT TO COUNSEL Police did everything they could to attempt to put accused in contact with lawyer and to contact accused's counsel of choice Accused charged with breaking and entering residence to com- mit indictable off ence. Accused applied to exclude any statements taken by him upon his arrest on grounds that such statements were taken in breach of his right to counsel. Accused and another individual were arrested as re- sult of complaints having been received with respect to motor vehicles. After his arrest and various rights and cautions were given accused was transported to police detachment wherein accused conversed with arresting offi cer. Accused named particu- lar lawyer he wished to speak to and messages were left with that lawyer. Accused was then inter- viewed by detectives, after mes- sage was left for a second named counsel and off ered information leading them to believe he had been responsible for number of break and enters. Accused then off ered to go with offi cers on ride around to show them where various residences he had www.lawtimesnews.com Starting from $62.50 per month broken into were located and more charges were subsequently laid. Application dismissed. Ac- cused fully understood that he did not need to talk about any- thing he did not wish to. It was readily apparent that accused was fully aware of his ability to speak with counsel, voiced such rights and it was his own actions that led to ride around and his decision not to pursue counsel. Police did everything they could have done to attempt to put ac- cused in contact with lawyer and to contact accused's counsel of choice. R. v. MacPhail (Feb. 2, 2011, Ont. C.J., Hearn J., File No. 6005/09) 93 W.C.B. (2d) 605 (36 pp.). Jury EMPANELLING Crown not required to disclose personal opinions of police officers about potential jurors Accused charged with fi rst de- gree murder. Crown received jury list three weeks before trial began. Local police offi cers re- viewed list and provided Crown with one word comments about 118 of 400 potential jurors. Comments not disclosed to de- fence. Crown made limited use of comments and did not chal- lenge one potential juror about whom negative comments had been made. Accused convicted. Appeal dismissed. Crown not required to disclose personal opinions of police offi cers about potential jurors. Manner of jury selection did not raise reason- able apprehension of bias. PAGE 15 R. v. Davey (Dec. 3, 2010, Ont. C.A., Rosenberg, Blair and Juri- ansz JJ.A., File No. C48091) 93 W.C.B. (2d) 668 (19 pp.). Trial CHARGE TO JURY Trial judge's instructions did not place burden on defence to establish every fact relied on by expert witnesses Accused charged with fi rst de- gree murder. Accused planned confrontation in which he would kill police offi cer. Ac- cused acquired weapons, wrote suicide note, and called 911 and falsely reported robbery. Ac- cused stabbed and killed police offi cer who responded to his call. Accused later turned himself in. Sole issue at trial was whether accused had intent for murder. Defence called expert witnesses who testifi ed that accused was not considering consequences of his actions and did not have in- tent to kill. Expert opinions were based on interviews conducted with accused. Accused did not testify at trial. Trial judge in- structed jury that experts' reli- ance on evidence not led at trial and facts not judge's found by them to be true reduced weight they could put on evidence. Accused convicted. Appeal Trial instructions did not place burden on defence to establish every fact relied on by expert witnesses. Trial judge's summary of expert evidence was fair and accurate. R. v. Davey (Dec. 3, 2010, Ont. 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