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PAGE 18 CaseLawLaw SUPREME COURT OF CANADA Extradition And Fugitive Offenders SURRENDER Standard of review applicable to surrender decision, including determination of alleged Charter violation, is reasonableness Fugitive appealed dismissal of application for judicial review of surrender to United States of America. Fugitive convicted in Canada of offences, including conspiracy to traffic in cocaine, and sentenced. United States then sought fugitive's extradition to face charges arising from transac- tion which occurred in Detroit, Michigan during Canadian inves- tigation. Minister concluded that surrender would not unjustifiably infringe mobility rights under s. 6(1) of Canadian Charter of Rights and Freedoms, in part be- cause United States had superior interest in prosecution. Appeal dismissed. Standard of review ap- plicable to surrender decision, in- cluding determination of alleged Charter violation, is reasonable- ness. Assessing whether prima facie infringement of s. 6(1) is justified depends on political de- cision engaging Minister's exper- tise. Decision owed considerable deference. Here, Minister's deci- sion reasonable. Not unreason- able to conclude fugitive had not been charged with or punished for Detroit transaction. Minister's reasons sufficient. Minister not re- quired to provide detailed analysis of every factor to be considered in determining whether extradition preferable to prosecution in Cana- da. Not unreasonable to conclude that no factor clearly outweighed fact that alleged offence occurred in United States. United States of America v. Lake (May 8, 2008, S.C.C., McLachlin C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Char- ron and Rothstein JJ., File No. 31631) Appeal from 212 C.C.C. (3d) 51 dismissed. Order No. 008/133/044 (35 pp.). Parole CALCULATION OF SENTENCE Sentence of two years' imprisonment did not become sentence of more than two years simply because pre-sentence custody accounted for DD LT RXQTHZF-03 Law ad 6/19/08 4:45 PM Page 1 Accused tried in separate trials on unrelated matters. All received custodial sentences of less than two years, with three years' proba- tion. But for pre-sentence custody, judges in all four cases would have imposed penitentiary terms. In one case, judge also ordered pe- riod of parole ineligibility equal to one half of sentence. Appeals decided together. Sentence of two years' imprisonment does not, ex- cept in exceptional circumstances such as conditional sentences, be- come sentence of more than two years simply because judge takes into account pre-sentence custo- dy. Therefore, it was not open to judge to impose period of parole ineligibility. R. v. St-Germaine; R. v. A. sub nom. R. v. J. (F.); R. v. Moniere; R. v. Mathieu (May 1, 2008, S.C.C., McLachlin C.J.C., Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ., File No. 31662; 32003; 32091; 32014) Appeal from 77 W.C.B. (2d) 340, 223 C.C.C. (3d) 375, 77 W.C.B. (2d) 312 dismissed; 71 W.C.B. (2d) 782 allowed. Order No. 008/126/002 (23 pp.). JUNE 30 - JULY 7, 2008 / LAW TIMES COURT DECISIONS ainmaker_LT_June2_08.indd 1 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 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. Intellectual Property FEDERAL COURT OF APPEAL Industrial And TRADE-MARKS There is an exception to general rule of expungement where absence of use due to special circumstances This was appeal of judge's deci- sion that senior hearing officer's decision was not reasonable. Registrar gave notice to appel- lant, registered owner, to show whether registered trade mark VANITY had been used in Cana- da in three years preceding giving of notice and if not to show date of last use and reasons for absence of use. Appellant indicated that it planned to re-introduce VAN- ITY brand. Senior hearing of- ficer considered that last date of use was 13 years prior to date of decision and that reason for non- use was deliberate and voluntary decision of registered owner. Se- nior hearing officer found that registered owner had serious in- tention to resume use of trade mark, which amounted to special circumstances within meaning of s. 45 of Trade-marks Act (Can.). On appeal judge concluded that senior hearing officer erred in applying law to facts in finding that 13-year period of deliber- ate non-use could be excused by registrant's intention to use mark in near future. Appeal dismissed. General rule was that absence of use was penalized by expunge- ment but there was exception to general rule where absence of use was due to special circumstances. Relevant inquiry as to what spe- cial circumstances existed was inquiry into reasons for non-use. Thirteen-year absence of use was due to deliberate decision not to use mark. Registrant's intention to resume use of mark that had been absent from marketplace, even where steps had been taken to actualize those plans, could not amount to special circum- stances that excused non-use of trade mark. Plans for future use did not explain period of non-use and could not amount to special circumstances. Senior hearing officer erred in treating intention to resume use as spe- cial circumstances. Smart & Biggar v. Scott Paper Ltd. (Apr. 4, 2008, F.C.A., Desjardins, Sexton and Pelletier JJ.A., File No. A-64-07) Appeal from 154 A.C.W.S. (3d) 464; 58 C.P.R. (4th) 42; 305 F.T.R. 297 dis- missed. Order No. 008/112/069 (18 pp.). FEDERAL COURT Constitutional Law CHARTER OF RIGHTS Absence of consent of Government of Afghanistan precluded application of Charter rights to its citizens within its territory Applicants brought application for judicial review with respect to transfers or potential transfers of individuals detained by Cana- dian Forces deployed in Afghani- stan. Applicants alleged that formal arrangements that had been entered into by Canada and Afghanistan did not provide ad- equate or substantive procedural safeguards to ensure that indi- viduals transferred into custody of Afghan authorities, as well as those who might be transferred onto custody of third countries, were not exposed to substantial risk of torture. Applicants ap- plied for declaration that ss. 7, 10 and 12 of Canadian Charter of Rights and Freedoms applied to individuals detained by Cana- dian Forces in Afghanistan. Ap- plication dismissed. Canadian law, including Charter, could only be enforced in another state with consent of other state. There had been no consent by Govern- ment of Afghanistan to having Charter rights conferred on its citizens within its territory. It was intent of Government of Afghan- istan that rights to be afforded to detainees in Canadian custody in Afghanistan were those ac- corded by Afghan Constitution and by international law, includ- ing international humanitarian law, and not those guaranteed by Charter. Charter did not apply to conduct of Canadian Forces in issue in this case. Charter would not apply to restrain conduct of Canadian Forces in Afghanistan even if applicants were ultimately able to establish that transfer of detainees in question would ex- pose them to substantial risk of torture. Amnesty International Canada v. Canadian Forces (Defence Staff, Chief) (Mar. 12, 2008, F.C., Mactavish J., File No. T-324-07) Order No. 008/094/013 (86 pp.). Contempt Of Court PUNISHMENT Fines of $4,000 and $1,000 imposed for failing to provide information to Minister of National Revenue Respondents sentenced to fines - tively, payable within 30 days, for contempt of court orders re- quiring compliance with requests for documents and information Canada's Largest Supplier of Indexes Dye & Durham Law Office Essentials Available in complete sets or packages of individual numbers Ordering only the numbers or letters required helps to minimize waste Sets from 1-2000, letters A-Z Buff or White with up to 30% post consumer waste yourONE source supplier for C U PREFERRED SUPPLIER OFFICE & FURNITURE PRODUCTS E Office & Furniture Products Corporate Promotional Products Printing & Graphic Services Law Office Essentials Corporate Supplies Search & Registration Services dyedurhambasics.ca Phone: 1-888-393-3874 www.lawtimesnews.com Fax: 1-800-263-2772 W e ' r e a D y C S a 8 I n E 9 H a p N d & 9 i R m a 1 C n D o a A n Y M

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