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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Charter Of Rights SEARCH AND SEIZURE Accused had no objectively reasonable expectation of privacy in digital recording ammeter data Accused charged with produc- tion of marijuana and possession of marijuana for purpose of traf- ficking. Police made observations of accused's residence causing them to suspect marijuana grow operation was inside. At request of police, utility installed digital recording ammeter ("DRA") on power line supplying accused's house. DRA revealed unusual patterns of electricity usage con- sistent with grow operation. As result of DRA information po- lice obtained warrant to search accused's house and discovered marijuana grow operation. Legis- lation governing utility provided that unless customers expressly requested confidentiality, data could be shared with police by utility. Accused did not request confidentiality. Accused applied at trial to exclude evidence for breach of s. 8 of Canadian Char- ter of Rights and Freedoms. Trial judge found no reasonable expec- tation of privacy in data revealed by DRA and dismissed applica- tion. Accused was convicted. Majority of Court of Appeal set aside accused's conviction find- ing that installation of DRA was unreasonable search. Crown's ap- peal to Supreme Court allowed and convictions restored. Pat- terns of electricity use revealed by DRA did not include core biographical data that would at- tract constitutional protection. Utility would have been entitled to gather DRA data for its own purposes and could have turned this data over to the police. Ac- cused had no objectively reason- able expectation of privacy. R. v. Gomboc (Nov. 24, 2010, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33332) Decision at 84 W.C.B. (2d) 1044 reversed. 92 W.C.B. (2d) 36 (86 pp.). Defences PROVOCATION There was no air of reality to provocation defence Accused charged with second degree murder. Accused was separated from wife and believed she was seeing another man. Ac- cused entered her apartment us- ing keys he had secretly kept and discovered her in bed with the deceased. Accused retrieved two butcher knives from kitchen and stabbed deceased to death and injured wife. Trial judge accepted defence of provocation and con- victed accused of manslaughter. Court of Appeal allowed Crown's appeal and substituted convic- tion for second degree murder. Accused's appeal dismissed. No air of reality to defence of provo- cation existed in this case. Es- tranged wife's involvement with deceased was not wrongful act or insult and accused's discovery of relationship was not sudden. R. v. Tran (Nov. 26, 2010, S.C.C., Binnie, Deschamps, Fish, Abella, Charron, Roth- stein and Crowmell JJ., File No. 33467) Decision at 78 W.C.B. (2d) 128 affirmed. 92 W.C.B. (2d) 41 (32 pp.). FEDERAL COURT OF APPEAL Limitations GENERAL Application judge properly held that attorney general would be prejudiced in ability to mount defence in human rights complaint initiated after more than 20 years Human Rights Commission declined to proceed with com- plaint because it fell outside one-year limitation period pre- scribed in Canadian Human Rights Act. Commission held it was satisfied Attorney General would be prejudiced in ability to respond adequately because more than 20 years had elapsed. Complainant's application for judicial review dismissed. Appli- cation judge found that in light of Treasury Board's Guidelines as to document retention and destruction, he was unable to see how Attorney General "could be expected to adduce evidence as to how the documents could have been relevant to its defence when it has no knowledge of what documents might have ever existed and would have been destroyed many years ago". Application judge also found it would be difficult, if not impos- sible to locate witnesses. Com- plaint would rest entirely on recollections of memories given lack of documentation and un- likely witnesses would accurately recall events that occurred some 20 years prior. Appeal dismissed. Application judge correctly se- lected standard of reasonable- ness for review. Applying that standard, appeal cannot succeed. march 7, 2011 • Law Times COURT DECISIONS CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. Complaint based on sexual ori- entation. Complainant alleges he suffered adverse results as re- sult of homophobia on part of certain named individuals. To properly investigate complaint, necessary to access information about staffing competitions to determine if results could be explained by factors other than homophobia. Documentation would be critical. Application judge properly held that Attor- ney General would be prejudiced in ability to mount defence be- cause relevant documents likely destroyed in accordance with retention Guidelines. Given that Treasury Board had no inkling of complaint until it was filed, rea- sonable to assume relevant docu- ments destroyed in accordance with retention policy. Passage of time also lightened burden of proof on Attorney General. Richard v. Canada (Attorney General) (Nov. 4, 2010, F.C.A., Blais C.J., Noel and Pelletier JJ.A., File No. A-171-10) Deci- sion at 188 A.C.W.S. (3d) 1113 was affirmed. 196 A.C.W.S. (3d) 517(10 pp.). FEDERAL COURT Immigration REFUGEE STATUS Denial of refugee status upheld on judicial review Application for judicial review of denial of refugee status. Appli- cant was citizen of Saint Vincent and Grenadines who worked as auxiliary, part-time police officer in Grenadines. Applicant was fleeing from man with whom she had relationship and with whom she had two children. Applicant had been abused over 15-year period. Board had considered Chairperson's Guidelines as well as contents of medical reports before arriving at conclusion. Board considered applicant's ig- norance of law, reliance on oth- ers and depressive state and con- cluded it was not satisfied with applicant's explanations. Board relied on country conditions document to conclude that state protection was available to ap- plicant. Application dismissed. Applicant waited 11 years before filing for asylum. Magnitude of delay played decisive role in deci- sion. It was reasonable for board to say that applicant failed to re- but presumption of state protec- tion. Section 108(4) of Immigra- tion and Refugee Protection Act (Can.), had no application as ap- plicant was at no time found to be Convention Refugee. Court's intervention was not warranted. www.lawtimesnews.com Robinson v. Canada (Minister of Citizenship and Immigration) (Dec. 10, 2010, F.C., Beaudry J., File No. IMM-2018-10) 196 A.C.W.S. (3d) 522 (6 pp.). SELECTION AND ADMISSION Applicant outside Canada who intends to reside in Quebec cannot be granted permanent residence if applicant does not meet province's criteria Application for judicial review of decision of visa officer reject- ing application for permanent resident visa for child under tu- torship on ground he was not member of family class category. Officer also refused to exercise humanitarian discretion to grant permanent residence to child as s. 25(2) of Immigration and Ref- ugee Protection Act (Can.), pro- hibited him from doing so. Ap- plicants were Canadian citizens and Quebec residents of Algerian origin. Applicants arranged for tutorship of abandoned Algerian child and certificate of tutorship was issued by Algerian court. Child was physically given to ap- plicants who were also allowed to change child's name. Appli- cants obtained permission from Algerian court for child to per- manently reside in Canada with them and applicants began im- migration procedures in Quebec in family class category. Quebec refused to grant child selection certificate ("CSQ") and Visa of- ficer at Embassy in Paris rejected application. Applicant applied for judicial review contending that visa officer should have of- fered them opportunity to reside elsewhere in Canada in province where legislation did not prevent child under tutorship from be- ing subject of full adoption. Ap- plicants contended that officer's obligation to offer this alterna- tive was explicitly recognized in operational manual IP-5, which applied specifically to applica- tions made in Canada but which applicants contended by anal- ogy should apply to applications made outside Canada. If officer had followed this procedure applicants contended that s. 117(1)(g) of Act would have ap- plied and letter of "no objection" could have been obtained from another province. Application dismissed. Applicant outside Canada who intends to reside in Quebec cannot be granted permanent residence if applicant does not meet province's criteria. Accordingly, officer could not be required to consider humanitar- ian and compassionate consider- ations because Quebec provin- cial authorities had already re- fused to grant applicant selection certificate and as result applicant fell within exception in s. 25(2) of Act. Officer had no obligation under applicable immigration manuals OP-2 and OP-4 to sug- gest applicant move to another province. Parliament provided for two separate processes to deal with applications from in Canada and from abroad. Even if manual IP-5 applied applicant would still have to satisfy s. 25 requirements and exception in s. 25(2) of Act. Koroghli v. Canada (Minister of Citizenship and Immigration) (Nov. 1, 2010, F.C., Tremblay- Lamer J., File No. IMM-52- 10) 196 A.C.W.S. (3d) 530 (12 pp.). ONTARIO CIVIL CASES Air Law CARRIAGE Claim fell within definition of "accident" as defined by Article 17 Motion by defendant airline for order dismissing or permanently staying plaintiffs' action for lack of jurisdiction. Plaintiffs were husband and wife who boarded defendant's plane in India and landed in Toronto. Plaintiffs al- leged they requested that defen- dant had wheelchair available upon their arrival but defendant did not. Wife had to walk af- ter disembarking as a result and claimed to have suffered serious and permanent injuries when she fell. Plaintiffs' claim was framed in negligence. Defendant argued action was governed by Conven- tion for the Unification of Certain Rules Relating to International Carriage by Air because the ac- cident took place in the course of disembarking an aircraft. Plain- tiffs argued accident occurred in the terminal. Motion allowed. Claim fell within definition of "accident" as defined by Article 17 as plaintiffs were alleging that defendant failed to obtain wheelchair prior to the plane's arrival or prior to plaintiffs leav- ing the gate. Thus, Convention provided exclusive remedy pur- suant to Article 24(2). Wording of Article 28(1) was mandatory and gave specific conditions for jurisdiction. As defendant was incorporated, based and resident in Germany and plaintiffs pur- chased tickets for travel begin- ning and ending in India, On- tario did not have jurisdiction. Action dismissed and defendant awarded $10,500 costs. Balani v. Lufthansa German Air- lines Corp. (Nov. 5, 2010, Ont. S.C.J., Pattilo J., File No. CV- 09-378715) 196 A.C.W.S. (3d) 305 (8 pp.).