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PAGE 18 CaseLawLaw SUPREME COURT OF CANADA Obscenity CHILD PORNOGRAPHY Offence of possessing distinct from offence of accessing Child pornography found in search of accused's house. Infor- mation to obtain alleged posses- sion of child pornography based on observations by computer technician that accused's inter- net "favourites" had included child pornography websites. Trial judge and majority of Court of Appeal upheld war- rant. Accused's appeal allowed. Offence of possessing child por- nography distinct from offence of accessing. Accessing remote image over internet insufficient to establish possession. Deliber- ate control over underlying data files required. R. v. Morelli (Mar. 19, 2010, S.C.C., McLachlin C.J.C., Bin- nie, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 32741) Appeal from 233 C.C.C. (3d) 465, 78 W.C.B. (2d) 462 allowed. 86 W.C.B. (2d) 949 (84 pp.). FEDERAL COURT OF APPEAL Animals Respondent GENERAL Respondent contravened s. 176 of Health of Animals Regulations (Can.) was auctioneer. Applicant alleged respondent moved or caused movement of animal from farm of origin without animal bearing ap- proved tag in contravention of s. 176 of Health of Animals Regu- lations (Can.). Tribunal can- celled notice of violation issued against respondent and mon- etary penalty of $500 imposed against respondent. Respondent had neither ownership nor held proprietary interest in animal. Application for judicial review was allowed. Tribunal failed to draw legal inferences flowing form respondent's legal status. Respondent contravened s. 176 by delivering animal that was not tagged to purchaser. In do- ing so respondent caused move- ment of animal from its farm as defined in s. 172. Canada (Attorney General) v. Denfield Livestock Sales Ltd. (Feb. 3, 2010, F.C.A., Blais C.J., Le- tourneau and Trudel JJ.A., File No. A-575-08) 185 A.C.W.S. (3d) 814 (24 pp.). Customs And Excise DUTY Respondent had to pursue appeal to CITT Respondent imported bacon bits. Agency assessed duties on bacon bits. Respondent dis- agreed with assessment. Presi- dent of agency rule president did not have jurisdiction to decide matter. Respondent brought ap- plication for judicial review and was granted declaration. Appeal was allowed. Applying "jurisdic- tional" label to president's rul- ing did not permit respondent to proceed to Federal Court bypassing remainder of admin- istrative process. If respondent wished to have recourse against president's ruling, respondent should pursue appeal to CITT. Canada (Border Services Agency) v. C.BCanad. Powell Ltd. (Feb. 23, 2010, F.C.A., Nadon, Ev- ans and Stratas JJ.A., File No. A-245-09) 185 A.C.W.S. (3d) 914 (22 pp.). FEDERAL COURT Civil Procedure PLEADINGS No reasonable cause of action for Charter breach in amended statement of claim Plaintiff was employed by Can- ada Revenue Agency ("CRA"). Plaintiff became aware employ- ees accessed plaintiff's personal income tax account. Plain- tiff alleged violation of rights under Canadian Charter of Rights and Freedoms. Plaintiff claimed damages for alleged non-enforcement of provisions of Income Tax Act (Can.), for unauthorized confidential information, for non-commencement disclosure of pro- ceedings pursuant to Criminal Code (Can.), and alleged failure to commenced investigation. Defendant brought motion to strike amended statement of claim. Motion was allowed. Ac- tion grounds on breach of stat- ute failed because there was no such thing as right of action for breach of legislation. Principles of prosecutorial and police dis- cretion applied to decision to proceed relative to s. 239(2.2) of Act. Discretion was opposed to recognition of duty for which breach could sustain action in negligence for failing to inves- tigate or prosecute. Fact charges of April 26, 2010 • lAw Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 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: 5/28/08 10:43:29 AM 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. were not laid in exercise of dis- cretion could not be unlawful act to establish tort of misfea- sance in public office. There was no reasonable cause of action in amended statement of claim for Charter breach. Plaintiff's complaints about workplace did not fall within mandate of Pub- lic Service Integrity Canada. By attempting to challenge actions of OPC, Information Commis- sioner or Integrity Commis- sioner, plaintiff was trying to make collateral attack on those administrative decision-makers. Collins v. Canada (Mar. 5, 2010, F.C., Heneghan J., File No. T-997-09) 185 A.C.W.S. (3d) 836 (25 pp.). Immigration REFUGEE STATUS Victims of crime not protected by Convention Application for judicial review of decision of Refugee Protec- tion Division which determined that applicant was neither Con- vention Refugee nor person in need of protection. Applicant was male citizen of Ukraine who alleged fear of persecution from extortionists in Ukraine. Appli- cant alleged that he owned and operated kiosk that sold various goods and that in 2002 two un- known extortionists began to demand payments. Applicant alleged that when he could no longer pay extortionists attacked applicant in his home and he went to hospital where police took report. Applicant alleged that after this his kiosk was set on fire, he was hit by car and received threatening calls from extortionists. Applicant did not contact police as result of these events and he contended police and extortionists were working together and Ukraine was cor- rupt society. Board concluded there was no nexus between ap- plicant and Convention ground as vendettas could not be ground for Convention Refugee status. Nor was applicant person in need of protection as board did not find applicant cred- ible, based on inconsistencies between evidence he produced. Board also found that applicant failed to rebut presumption of state protection and had inter- nal flight alternative to Kiev. Application dismissed. Victims of crime are not protected by Convention. Applicant provid- ed no evidence of extortionists' identity or if they were linked with any government organiza- tion. Refusal to bow to extor- tion, threats and violence due to his status as business owner did not qualify applicant as refugee www.lawtimesnews.com under Convention. Board's de- cision was reasonable in this re- gard. Claimant seeking to rebut presumption of state protection must adduce relevant, reliable and convincing evidence which satisfied trier of fact on balance of probabilities that state protec- tion was inadequate. Here po- lice took report after first assault but applicant did not contact them thereafter. Board found applicant's reasons for not con- tacting police or seeking protec- tion from higher authorities did not rebut presumption. Board preferred documentary evidence that demonstrated that Ukraine provided state protection and concluded that presumption of state protection was not rebut- ted. Board also determined that applicant had IFA to Kiev not- ing there was no central l regis- try in Ukraine and therefore it would be difficult for extortion- ists to locate him there. This was reasonable. Velychko v. Canada (Minister of Citizenship and Immigration) (Mar. 8, 2010, F.C., Near J., File No. IMM-5479-08) 185 A.C.W.S. (3d) 1019 (12 pp.). Intellectual Property Industrial And PATENTS Commissioner erred in application of obviousness test Commissioner refused applicant's application for patent on grounds of obviousness. Applicant argued commissioner disregarded order by failing to consider new evi- dence court specifically directed commissioner to consider. Ap- plicant argued commissioner was biased. Appeal was allowed. There was no actual or appre- hended bias on part of commis- sioner. Commissioner did not err in identification of test for obvi- ousness. Commissioner's deci- sion was unreasonable. Affidavit was admitted as fresh evidence on appeal. Commissioner erred in application of obviousness test by separately considering each element of first claim in order to determine whether element was obvious rather than consid- ering claim as whole. Invention claimed by applicant involved combination of constituent ele- ments some of which were al- ready known. It was not open to commissioner to find expert evidence adduced by applicant to be unnecessary. Decision did not clearly identify who "person skilled in the art" was for purpose of obviousness analysis. Blair v. Canada (Attorney Gen- eral) (Feb. 26, 2010, F.C., Mac- tavish J., File No. T-649-08) 185 A.C.W.S. (3d) 1029 (25 pp.). ONTARIO CIVIL CASES Civil Procedure TIME Respondent given extension of time despite unexplained delay Extension of time to file and serve answer allowed despite unexplained delay on part of respondent. Applicant brought application claiming spousal support, sale of matrimonial home and other relief. Respon- dent was served with application in January 2009 but failed to re- spond. In October 2009 respon- dent was served with documen- tation for uncontested trial but took no steps to defend matter. On date of trial in January 2010 respondent sought extension of time to serve and file answer and financial statements. Exten- sion granted. Respondent gave no satisfactory explanation for delay in taking steps to defend matter. Judge however decided to grant extension in interests of having full adjudication on merits. Prejudice to applicant by reason of extension was com- pensable in costs and terms of adjournment. As terms of grant of extension respondent was ordered to pay interim spousal support and co-operate in sale of matrimonial home. Homanchuk v. Filipowicz (Mar. 10, 2010, Ont. S.C.J., Spies J., File No. FS-09-16062) 185 A.C.W.S. (3d) 883 (5 pp.). Conflict Of Laws JURISDICTION Court did not recognize Singapore order Singapore order gave mother sole custody with reasonable ac- cess to father. Child was in Sin- gapore for just over one month when order was made. Father sought sole custody and super- vised access for mother. Father argued mother was flight risk. Mother sought to move with child to Singapore. At time of Singapore order mother's habit- ual residence was not Singapore. Child was not habitually resi- dent in Singapore at time Sin- gapore order was made. Child did not have real and substantial connection with Singapore at time of Singapore order. Bal- ance of convenience did not fa- vour Singapore when Singapore order was made. Court did not recognize Singapore order. Ju- risdiction over issues of custody and access was to be exercised by court. Child had ties to both families. Father's parenting plan was not realistic. Temporary

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