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Law Times • apriL 20, 2009 that action tried in jurisdiction with closest connection with ac- tion and parties. Lloyd's Underwriters v. Com- inco Ltd. (Feb. 20, 2009, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ., File No. 32116) Appeal from 156 A.C.W.S. (3d) 1056, 279 D.L.R. (4th) 257 dis- missed. Order No. 009/054/110 (28 pp.). FEDERAL COURT Courts ABUSE OF PROCESS Allowing claim to proceed would bring administration of justice into disrepute Prothonotary correctly struck out plaintiffs' claim without leave to amend. Present action taken by plaintiffs was yet another endea- vour to do what they had failed to do in earlier criminal and civil proceedings, namely to persuade court that possession and use, by them and their colleagues of can- nabis for what they characterize as "sacramental purposes" is law- ful and protected by Canadian Charter of Rights and Freedoms. To cast present action as proposed class action and to plead that there were others, "parishioners" who have suffered like abuses is simply endeavour by them to re-litigate what has been lost by them many times or, put another way, to attack collaterally deci- sions of this and other superior courts and appellate courts of this country. To allow such claim to be made would bring adminis- tration of justice into disrepute. Claim struck out as abuse of process. Further, action, which sought to style itself as class ac- tion, was based on fundamental- ly flawed premise, namely that s. 4 of Controlled Drugs and Substances Act (Can.), is of no constitutional force and effect. Claim disclosed no reasonable cause of action and was bereft of any chance of success. Pearson v. Canada (Minister of Justice) (Dec. 11, 2008, F.C., Hughes J., File No. T-1430- 07) Appeal from 172 A.C.W.S. (3d) 892 dismissed. Order No. 009/033/075 (22 pp.). FEDERAL COURT OF APPEAL Administrative Law JUDICIAL REVIEW Section 67(1) of Customs Act (Can.) gave appellant statutory right to appeal decisions of Canadian International Trade Tribunal Applications judge correctly con- cluded that by virtue of s. 18.5 of Federal Court Act (Can.), he had no jurisdiction to review seven decisions of Canadian Border Ser- vices Agency with respect to clas- sification of goods under Customs Tariff (Can.), and imposition of duties under ss. 42 and 43 of Ex- cise Act, 2001 (Can.), because s. 67(1) of Customs Act (Can.), gave appellant statutory right to appeal against decisions to Canadian In- ternational Trade Tribunal. Spike Marks Inc. v. Canada (At- torney General) (Dec. 17, 2008, F.C.A., Richard C.J., Ryer and Trudel JJ.A., File No. A-131- 08) Appeal from 166 A.C.W.S. (3d) 209, 323 F.T.R. 224 dis- missed. Order No. 009/022/064 (17 pp.). Intellectual Property Industrial And PATENTS International patent application was time-barred Application judge properly dis- missed application for judicial review from Commissioner's decision refusing to accept ap- pellant's International Patent Ap- plication for Canadian National Phase entry because request was time-barred. Appellant, having chosen to file international pat- ent application for three related patents, must take applicable time-limitations as it finds them. Patent Rules do not contem- plate possibility that person fil- ing three-invention application internationally may choose to proceed in Canada with only two of them, without complying with time-limits for withdrawal of claim under Patent Coopera- tion Treaty. Legislative scheme prevailed over common law argu- ment by appellant. Antiballistic Security and Pro- tection Inc. v. Canada (Com- missioner of Patents) (Dec. 9, 2008, F.C.A., Linden, Sharlow and Trudel JJ.A., File No. A-280- 08) Appeal from 167 A.C.W.S. (3d) 983 dismissed. Order No. 009/023/040 (7 pp.). ONTARIO CRIMINAL CASES Assault COMMON ASSAULT Conviction for domestic assault upheld on appeal Appeal by the accused from his conviction for assaulting his wife. Wife claimed that the accused as- saulted her while she was using a computer at home. Accused claimed he did not assault her. He submitted that the judge erred in failing to consider evidence of a prior inconsistent statement by the wife, in improperly assessing character evidence and in rely- ing upon photographic evidence to reject his claim of self-defence. Appeal dismissed. Judge found that the wife's evidence was sup- plemented by photographs of her bruises and by evidence of her friend. It was clear that the judge did not find there to be an inconsistency between the wife's testimony and what she told her friend. That conclusion was open to him on the evidence. Judge did not err in holding that character evidence carried less weight in cases of assault in private between spouses. He did not consider the photographs in isolation and found that the evidence in them was only consistent with the wife's testimony. It was open for him to do so. R. v. Borg (Feb. 10, 2009, Ont. S.C.J., Miller J., File No. SCA(P) 2581/08) Order No. 009/043/174 (10 pp.). CASELAW Courts ABUSE OF PROCESS Multiple prosecutions based on new allegations not abuse of process Accused applied for stay of pro- ceedings due to abuse of process arising from charges for sexual offences. Accused charged with multiple offences against young boys. New indictment had 10 new complainants alleging simi- lar offences to previous charges. He alleged that new charges amount to cruel and unusual treatments because he had already been prosecuted and punished for similar charges. Accused also alleged that complainants should have come forward sooner and that the indictment lacked speci- ficity. His previous challenge was unsuccessful and he brought the case forward for review. Applica- tion dismissed. Parties in current proceedings were not the same. Previous plea agreement did not preclude him being further pros- ecuted. Multiple prosecutions based on new allegations not abuse of process. R. v. Rowe (Feb. 3, 2009, Ont. S.C.J., Stach J., File No. 08-70- MO) Order No. 009/035/226 (23 pp.). Evidence ADMISSIBILITY Accused was obliged to bring application to exclude evidence under Rule 31 Issue was whether the admissibil- ity of evidence should be argued by the defence pursuant to Rule 31 or by the Crown pursuant to Rule 30 of the Criminal Pro- ceedings Rules (Ont.). When an accused seeks to have evidence excluded on the basis that its prej- udicial value exceeds its probative effect, he or she is obliged to bring the application under Rule 31. If a question of relevance arises, it will be a simple matter for the judge, at the beginning of the motion, to first call on the Crown to argue relevance. R. v. Riley (Jan. 5, 2009, Ont. S.C.J., Dambrot J., File No. P299- 07) Order No. 009/014/066 (8 pp.). Extradition And Fugitive Offenders BAIL As flight risk and public interest criteria met, it was sufficient that application raised viable question of law Person sought applied for bail pending application for leave to appeal to Supreme Court of Canada. Person sought commit- ted and ordered surrendered to France to face terrorism-related charges. Appeal and application for judicial review were dismissed. Application allowed. Person sought would surrender himself into custody. Detention not nec- essary in public interest based on risk of unlawful activity or to facilitate surrender. As flight risk and public interest criteria met, legitimate liberty interest justi- fied setting low bar in determin- ing whether application "not frivolous". Sufficient that appli- cation raised viable question of law that could warrant granting of leave. France (Republic) v. Ouzghar (Feb. 13, 2009, Ont. C.A., Doherty www.lawtimesnews.com J.A., File No. M37232; C48310) Order No. 009/048/037 (4 pp.). Fraud PROOF OF OFFENCE Trial judge was entitled to infer knowledge and participation Two accused appealed their con- victions for fraud. Appeal dis- missed. Trial judge was entitled to rely on the combined evidence of the false credit cards found on first accused's person, together with the evidence of all the equip- ment found in the home for steal- ing credit card personal informa- tion and for manufacturing false credit cards, to infer knowledge of and participation by first ac- cused in the crimes charged. Trial judge rejected as incredible the unequivocal evidence of the sec- ond accused that she only noticed objects that belonged to herself or her husband in her home and having done so, trial judge was entitled to infer, based on the number and location in the house of the items found, that accused had the requisite knowledge of their presence to ground a find- ing of possession. R. v. Prathapan (Jan. 23, 2009, Ont. C.A., Feldman, Sim- mons and Cronk JJ.A., File No. C48092; C48093) Appeal from 77 W.C.B. (2d) 832 allowed in part. Order No. 009/033/045 (3 pp.). Indictment And Information VALIDITY Indictment did not offend single transaction rule Accused appealed convictions for assault and sexual assault against PAGE 15 former spouse. Complainant testified to multiple incidents of assault and sexual assault during four years of marriage. Appeal dismissed. Indictment against accused charging one count of each offence did not offend single transaction rule. Alleged acts of domestic abuse amounted to pat- tern of conduct and could there- fore be treated as single transac- tion. No evidence that form of indictment prejudiced accused. R. v. S. (H.S.) (Feb. 2, 2009, Ont. C.A., Laskin, Rouleau and Epstein JJ.A., File No. C43661) Order No. 009/035/055 (10 pp.). Sentence CRIMINAL HARASSMENT Sentence disproportionate to nature of conduct Case Image filler 12/20/06 11:23 AM Page 1 Accused appealed sentence of three years' imprisonment for criminal harassment. Accused jumped out from bushes and blocked path of stranger jogging in residential neighbourhood at night. Accused chased complain- ant to house and stared at her while she waited for someone to answer door. 33-year-old accused had serious drug addiction and lengthy criminal record including violent offences. Appeal allowed. Range of sentence could not be established, given many different ways that criminal harassment could be committed. Accused's sentence disproportionate to na- ture of conduct and thus mani- festly unfit. Sentence varied to two years plus three years' probation. R. v. K. (K.) (Feb. 2, 2009, Ont. C.A., Armstrong, Lang and Ep- stein JJ.A., File No. C48311) Order No. 009/035/052 (11 pp.). LT Obtain Copies of Judgments Your 24/7 connection to copies of original decisions caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case CaseLaw on Call • rates Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. 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