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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Appeal CROWN APPEAL Explicit threats not required elements of extortion Accused charged with ob- structing justice and extortion. Accused private investigator assisted defence in search war- rant case involving confi dential informant. Accused sought to discover identity of informant by confronting client's associates and requesting that they pro- vide him with their phones. Ac- cused told police he had learned identity of informant and told police of his knowledge and po- lice believed he was requesting that they withdraw charges or he would disclose informant's identity. Accused charged with extorting police offi cer to drop charges and with extorting as- sociates to provide phones. Trial judge found that accused did not threaten police and had reasonable excuse for his inter- actions with them. Trial judge rejected evidence of client's as- sociate and acquitted accused on both counts. Court of Appeal set aside acquittals and ordered new trial. New trial affi rmed for allegation of extorting police but acquittal restored on allegation of extorting client's associates. Trial judge erred in law in her understanding of elements of ex- tortion. Explicit threats are not required and alleged threats had to be analyzed in context. Indi- rect suggestions and veiled refer- ences by accused were legally ca- pable of being threats. Acquittal on count alleging extortion of associates rested not on an error of law but on trial judge's fi nd- ings of credibility and Crown was accordingly not entitled to a re-trial. R. v. Barros (Oct. 26, 2011, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33727) Decision at 87 W.C.B. (2d) 629 reversed in part. 96 W.C.B. (2d) 391 (68 pp.). NO SUBSTANTIAL WRONG Trial judge erred by instructing jury accomplice's criminal record could only be used to assess credibility Accused charged with break- ing and entering and sexual as- sault. Accused alleged to have broken into house of 89 year old woman and robbed and sexually assaulted her. Accused admitted breaking and entering but testi- fi ed that he was not involved in sexual assault. Accused testifi ed that his accomplice committed sexual assault without his knowl- edge. Accomplice testifi ed for Crown and denied any involve- ment in break and enter. Crimi- nal records and evidence of bad character showed that both ac- cused and accomplice had dis- position to commit off ences of dishonesty. Trial judge instruct- ed jury that criminal records could only be used in assessing credibility. Accused convicted and conviction appeal dismissed by majority of Court of Appeal. Appeal dismissed. Trial judge erred by instructing jury that ac- complice's criminal record could only be used to assess credibility. Error occasioned no substantial wrong or miscarriage of justice given that defence never argued to jury at trial that accomplice's criminal record should be used December 5, 2011 • Law Times Follow on www.twitter.com/lawtimes COURT DECISIONS Untitled-3 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: 5/5/10 3:55:30 PM 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. to infer propensity to commit the off ence. R. v. Dorfer (Oct. 21, 2011, S.C.C., McLachlin C.J.C., LeBel, Fish, Rothstein and Cromwell JJ., File No. 33952) Decision at 91 W.C.B. (2d) 241 affi rmed. 96 W.C.B. (2d) 364 (2 pp.). FEDERAL COURT Customs and Excise SEIZURE No allegation that officer who seized diamonds did so without reasonable belief Customs Act breached United States customs dis- covered plaintiff 's 20 uncut diamonds and seized them on investigation at airport. Plain- tiff failed to declare diamonds on entry into United States. Diamonds were handed over to RCMP. Seizure receipt was is- sued. Plaintiff sought return of diamonds. Attorney General sought to determine questions of law. Th ere was ample evidence that seizure of diamonds was purported by RCMP and cus- tom offi cials to be made under authority of Customs Act (Can.) ("CA"). CA limitation periods in ss. 106(2) and 135(1) applied to proceedings seeking return of goods purportedly seized un- der CA even if contravention may have occurred more than six years before purported sei- zure unless offi cer seizing goods did not believe on reasonable grounds Act or regulations were contravened in respect of goods. If offi cer did not have reasonable grounds no seizure occurred under s. 110 of CA. Th ere was nothing pled that removed from offi cers and Crown protection s. 7(1) of Public Authorities Protec- tion Act (Ont.) ("PAPA"). Limi- tation periods in s. 106(1) of CA and s. 7(1) of PAPA barred claim as against offi cer and defendant by virtue of s. 3(b)(i) of Crown Liability and Proceedings Act (Can.), because there was no allegation in pleadings that of- fi cer who seized diamonds did so without reasonable belief CA or regulations were breached. Action was dismissed with leave granted to fi le amended state- ment of claim to plead that of- fi cer who seized diamonds did not have reasonable grounds to believe CA or regulations were contravened. Zolotow v. Canada (Attorney General) (July 5, 2011, F.C., Zinn J., File No. T-1075-08) 206 A.C.W.S. (3d) 322 (22 pp.). ONTARIO CIVIL CASES Conflict Of Laws JURISDICTION Israel clearly less appropriate forum Parties had commercial dealings. Plaintiff s were based in Ontario. Defendant was Israeli company. Parties signed agreement in 2005 and another agreement in 2008. 2008 agreement con- tained forum selection clause. Plaintiff s alleged that defendant made misrepresentations to plaintiff s and encouraged them to build up their inventory and to return inventory through modest sized shipments. It was declared that Israeli court did not have jurisdiction. Forum selection clause contained in 2008 agreement did not govern this dispute for purposes of mo- tion. Subject matter of plaintiff s' claim against defendant was not subject matter of 2008 agree- ment. Only one of plaintiff s was party to 2008 agreement. Th ere was real and substantial con- nection between defendant and Ontario. If allegations asserted by plaintiff s were established, it would have been reasonably foreseeable that defendant's im- pugned conduct would have caused harm within Ontario. It was fair to assert jurisdiction over defendant. Israel was clearly less appropriate forum. 1673332 Ontario Ltd. v. Ha- bonim Industrial Valves & Actua- tors Ltd. (Aug. 22, 2011, Ont. S.C.J., Pepall J., File No. CV-10- 398151) 206 A.C.W.S. (3d) 301 (14 pp.). Contempt of Court GROUNDS Mother breached terms of order purely for her own motives Motions by parties for order for contempt. Parties were married in 2005, had one child and sep- arated in 2009. Parties entered into consent order regarding custody and access. Father al- leged that mother was in breach of order by denying him access and mother alleged that father was in breach of order in va- riety of ways. Father's motion was granted and mother's mo- tion was dismissed. Mother was granted opportunity to purge that contempt over subsequent three months on certain speci- fi ed terms. Mother was clearly in contempt of order. Th ere was no doubt that mother was aware of order and breached terms of or- der purely for her own motives. Mother admitted her conduct. Mother failed to provide suf- fi cient proof of father's alleged contempt. Dephoure v. 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