Law Times

PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Evidence CREDIBILITY No absolute rule that triers of fact may not consider accused's motive to lie Accused and four others charged with kidnapping, ag- gravated sexual assault and first degree murder. 13-year old girl lured into car and taken to iso- lated golf course where she was sexually assaulted and beaten to death. Accused testified he was present for offences but did not participate. Trial judge disbe- lieved accused's evidence and said he had "very great motive to be untruthful". Majority of Court of Appeal held this was reversible error. Crown appeal allowed. Assumption that ac- cused will lie to secure acquit- tal inconsistent with presump- tion of innocence. However no absolute rule that triers of fact may not consider accused's mo- tive to lie. Defence at trial relied on motive of Crown witnesses to lie to exculpate themselves. Appropriate for trial judge to consider that Crown witnesses had no more motive to lie than accused. Reasons as a whole revealed trial judge properly as- sessed credibility of all witnesses including accused and did not impermissibly assume accused would lie. R. v. Briscoe (Apr. 8, 2010, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33010) Decision at 241 C.C.C. (3d) 315, 81 W.C.B. (2d) 623 re- versed. 87 W.C.B. (2d) 278 (16 pp.). Mens Rea WILFUL BLINDNESS Wilful blindness can substitute for knowledge whenever knowledge is component of mens rea Accused charged with kidnap- ping, aggravated sexual assault and first degree murder. Accused and four others lured 13-year- old girl into vehicle on false promise of going to party. Co- accused had earlier expressed intention to kill someone. Ac- cused drove group to secluded golf course. Group took victim down path and assaulted, raped and killed her. Accused held victim briefly and told her to be quiet. He stood by and watched rape and murder. After his ar- rest, accused gave several police statements saying that he had not wanted to know what co- accused planned to do at golf course. Trial judge acquitted ac- cused on basis that Crown had not proved mens rea of aiding and abetting. Alberta Court of Appeal ordered new trial hold- ing that trial judge erred in fail- ing to consider wilful blindness. Accused's appeal dismissed. Wilful blindness can substitute for knowledge whenever knowl- edge is component of mens rea. Evidence at trial cried out for analysis of wilful blindness, which trial judge failed to con- duct. Failure to consider wilful blindness constitutes legal error requiring new trial. R. v. Briscoe (Apr. 8, 2010, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 32912) Decision at 237 C.C.C. (3d) 41, 79 W.C.B. (2d) 282 af- firmed. 87 W.C.B. (2d) 293 (19 pp.). FEDERAL COURT Administrative Law JUDICIAL REVIEW Letter of advice was not subject to judicial review Application by environmental group for judicial review of let- ter of advice ("LOA") issued by Department of Fisheries and Oceans ("DFO") in connection with proposed construction of railway near river. Energy com- pany requested LOA as part of its preliminary steps aimed at construction of railway near river. DFO issued LOA opining construction would not result in may 17, 2010 • 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. harmful alteration, disruption, or destruction of fish habitat. Application dismissed. LOA was not subject to judicial review. DFO had ample authority to issue LOA's but they amounted to non-binding opinions with no legal effect. LOA had no ef- fect on environmental group's rights as applicant. Cassiar Watch v. Canada (Minister of Fisheries and Oceans) (Feb. 12, 2010, F.C., Campbell J., File No. T-1974- 07) 186 A.C.W.S. (3d) 582 (37 pp.). Intellectual Property Industrial And TRADEMARKS Words "Report" "Certificate" and "Appraisal" clearly described wares in question Appeal from decision of Trade- marks Opposition Board dis- missing applications for three trade-marks. Applicant was Canadian diamond distributor that produced line of diamonds certified as being mined, cut, and polished in Canada. Head- ings of proposed trade-marks were "The Canadian Diamond Report", "The Canadian Dia- mond Certificate", and "The Canadian Diamond Appraisal". Each heading was followed by subheading "The mark of a diamond that is mined, cut and polished in Canada". Each pro- posed trade-mark included im- age of flag similar to Canadian flag but with diamond instead of maple leaf. Board dismissed applications on basis that pro- posed trade-marks were clearly descriptive of their associated wares and services. Board also found proposed trade-marks were not inherently distinctive and that evidence was insuf- ficient to establish acquired distinctiveness through sub- stantive use. Appeal dismissed. New evidence indicating appli- cant had previously registered subheading as trade-mark did not affect board's final conclu- sion. Prior trade-mark was itself clearly descriptive and court was not obliged to perpetuate error. Words "Report", "Certificate", and "Appraisal" clearly de- scribed wares in question. Fact that image itself was valid trade- mark was not relevant. Board could reasonably conclude im- age was not dominant portion of proposed trade-marks and did not prevent them from be- ing clearly descriptive when sounded. Board did not err in finding proposed trade-marks were not distinctive. New evi- dence of substantive use was not sufficiently probative to justify court's intervention. Most evidence related to use after relevant date, which was date of filing of application and not date of filing of opposition. Remaining evidence related to only one proposed trade-mark and was not sufficient to es- tablish acquired distinctiveness through substantive use. Canadian Jewellers Assn. v. Worldwide Diamond Trade- marks Ltd. (Mar. 17, 2010, F.C., Kelen J., File No. T-890- 09; T-891-09; T-892-09) Deci- sion at 74 C.P.R. (4th) 306, 74 C.P.R. (4th) 298 and 74 C.P.R. (4th) 290 were affirmed. Con- solidated case. 186 A.C.W.S. (3d) 803 (37 pp.). ONTARIO CIVIL CASES Administrative Law FREEDOM OF INFORMATION Application under s. 123 of Youth Criminal Justice Act (Can.) for access to records was dismissed Applicants were defendants in suit that arose out of investi- gation of individual for sexual offences which generated 40 charges. Some charges were dis- charged and rest were stayed. Individual brought civil action for damages claiming malicious investigation, negligent investi- gation, malicious prosecution, violation of rights under Ca- nadian Charter of Rights and Freedoms, abuse of power, false imprisonment and conspiracy to injure. Application was brought pursuant to s. 123 of Youth Criminal Justice Act (Can.), for order granting access to records of investigations/prosecutions held by Police Service concern- THERE IS A DIFFERENCE RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-5 1 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca www.lawtimesnews.com 3/23/10 11:35:15 AM ing 21 identified persons who were now adults. Identified persons were complainants or persons interviewed as possible complainants in investigation. Application was dismissed. Ap- plicants did not tender evidence to establish youth records were relevant to original criminal investigation issues. Applicants made no attempt to distinguish between types of records sought. Applicant did not show reason- able grounds believing interests of proper administration of jus- tice required access be given to youth records. Greater Sudbury Police Ser- vices Board v. B. (B.) (Mar. 16, 2010, Ont. C.J., McLeod J.) 186 A.C.W.S. (3d) 581 (7 pp.). Courts ABUSE OF PROCESS Judicial immunity was absolute Defendants brought motion to set aside noting in default and to dismiss action. Plaintiff sought dismissal of motion and claimed defendant judge's de- cision was illegal as plaintiff's driving suspension should have been for one year instead of two years. Plaintiff claimed judge made disparaging remarks about plaintiff's character. Ac- tion was dismissed. Judicial im- munity was absolute. Appeal procedure was proper proce- dure. There was no basis on any material facts pleaded by plain- tiff to justify allegations plaintiff made against presiding judge. Action was collateral attack on proceedings and decision made. Action was abuse of process. Berube v. Lajoie (Mar. 30, 2010, Ont. S.C.J., Lalonde J, File No. 09-46565) 186 A.C.W.S. (3d) 650 (19 pp.). Damages WRONGFUL DEATH Jury's award for loss of care, guidance, and companionship was grossly excessive This was appeal from decision of judge and jury awarding re- spondents damages arising from death of A.F., their daughter and sister. A.F. was killed in au- tomobile accident when trans- port truck she was riding in

• Cover
• Alternative Paths
• Civil Injustice
• Focus On Running Your Practice