Law Times

PAGE 14 CaseLawLaw FEDERAL COURT OF APPEAL Constitutional Law CHARTER OF RIGHTS Conduct of Canadian officials amounted to knowing participa- tion in respondent's mistreatment and did not accord with principles of fundamental justice Respondent, Canadian citizen, ac- cused by United States of killing United States soldier during fire- fight in Afghanistan. He was born in Canada but living in Afghanistan with his family. After firefight, then 15-year-old respondent detained by United States and treated for inju- ries suffered in fight. Canada's re- quest for consular access to respon- dent repeatedly denied and despite being minor, he was transferred to prison at United States Naval Base in Guantanamo Bay. Respondent awaiting trial before United States Military Commission or Federal Court on number of charges, in- cluding murder. He was detained without legal representation, access to family, or Canadian consular as- sistance. In 2003 and 2004, officials from Canadian Security Intelligence Service and Department of Foreign Affairs and International Trade ("DFAIT") interviewed 17-year-old respondent at prison. Interviews, held for purpose of gathering intel- ligence and to assist United States in prosecution of respondent, moni- tored and recorded by United States officials. Allegations that Canadian officials knew that respondent sub- ject to serious mistreatment and, specifically, sleep deprivation tech- niques. Fruits of interviews shared with United States officials and no request made to limit use of that in- formation. Shortly before 2004 in- terview, action commenced in Fed- eral Court on behalf of respondent alleging number of breaches of his rights under Canadian Charter of Rights and Freedoms. Respondent successfully applied for disclosure of records of interviews conducted by Canadian officials and records of information given to United States authorities as direct consequence of interviews. Supreme Court of Canada determined that Charter applies to constrain conduct of Canadian authorities when they participate in foreign legal process contrary to Canada's international human rights obligations. Dis- closure of documents provided evidence upon which respondent could file application for judicial review seeking to challenge Crown's decision and policy not to request his repatriation. Application grant- ed following finding that Canadian officials breached his s. 7 Charter rights. Remedy ordered was that Canada request United States to re- turn respondent to Canada as soon as practicable. Crown's appeal dis- missed. No question that conduct of Canadian officials amounted to knowing participation in respon- dent's mistreatment and did not ac- cord with principles of fundamental justice. Purpose of sleep deprivation mistreatment to induce respondent to talk and Canadian officials knew that when they interviewed respon- dent to obtain information for in- telligence purposes. Charter breach exacerbated by fact officials knew respondent was a minor. No factu- al basis for Crown's argument that court order requiring government to request return of respondent was serious intrusion into Crown's re- sponsibility for conduct of Canada's foreign affairs. No evidence order would damage Canada's relations with United States. Could not plausibly be argued that exceptional conditions existed so as to require s. 1 Charter analysis. Competing state interests already taken into ac- count when determining content of principles of fundamental jus- tice for purpose of s. 7. No error in finding that breach not justified by s. 1. Judge below did not abuse broad remedial discretion by failing to select remedy other than most obvious. He considered effective- ness of remedy, whether remedy he proposed would result in undue prejudice or hardship to Canada's interests, and found that remedy he proposed would not exceed compe- tence of courts. Khadr v. Canada (Prime Minis- ter) (Aug. 14, 2009, F.C.A., Na- don, Evans and Sharlow JJ.A., File No. A-208-09) Order No. 009/232/070 (54 pp.). OcTOber 19, 2009 • 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. 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 Single or multiple copies of the full text of any case digested in this issue can be obtained by calling CaseLaw's photocopy department at (905) 841-6472, or 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. FEDERAL COURT Contempt Of Court GROUNDS Shareholder/director did not wilfully or deliberately breach order FTC bought Fuzion's entire stock of computer goods on consignment basis. FTC was fully operational by fall of 2003. FTC did not submit reports to CPCC. CPCC asked FCT, Fuzion and sole shareholder and director of FTC to make avail- able all business, accounting and fi- nancial records of Fuzion and FTC. Order issued requiring FCT, Fuzion and shareholder/director to make documents available. Shareholder/ director was charged with breach- ing order by failing to make records available. Shareholder/director was served with order to appear. Mo- tion in contempt was dismissed. Shareholder/director was not found to be in contempt of court. Ap- plicant did not establish there was wilful and contumacious conduct on part of shareholder/director. Shareholder/director's evidence was credible. Shareholder/director did not wilfully or deliberately breach order. Shareholder/director did not have actual control or possession of Fuzion records. Shareholder/direc- tor's defence of due diligence and impossibility to comply with order was accepted. Canadian Private Copying Collective v. Fuzion Technology Corp. (Aug. 5, 2009, F.C., Martineau J., File No.T- 1655-04) Order No.009/245/081 (41 pp.). Customs And Excise SEIZURE Overall scheme of Honey Regulations (Can.) suggested contaminated honey not to be allowed into Canada for marketing United States Food and Drug Ad- ministration ("US FDA") found applicant's product was unfit for food. Respondent denied appli- cant's request to have product read- mitted to Canada for use as human food. Applicant was denied return of product in Canada for further testing. Product was destroyed in United States. Application for ju- dicial review was dismissed. Sec- tion 4.1(1) of Honey Regulations (Can.), applied. Applicant wished to import product to market as food if applicant were so allowed af- ter further testing. Prohibition in s. 4.1(1) was against importation per se. Overall scheme of Regulations suggested contaminated honey was not to be allowed into Canada for marketing. There was no statutory or regulatory obligation to allow honey into Canada for testing for contaminants. It was reasonable for Agency to rely on US FDA's evidence in absence of acceptable evidence to contrary. Decision was reasonable. Applicant was provided full opportunity to submit evidence of compliance and to make case. There was ample evidence to make decision interested of public. Hilbert Honey Co. v. Canada (Food Inspection Agency) (Aug. 11, 2009, F.C., Russell J., File No. T-1520-08) Order No. 009/245/076 (45 pp.). Human Rights Legislation DISCRIMINATION Unreasonable for investigator not to identify fundamental problems with respondent's offers of accommodation Applicant applied for employment with respondent. Applicant Applicant was advised applicant passed aptitude test. Applicant participated in oral interview. Applicant was sent letter offering employment. received telephone call advising let- ter was sent in error and applicant failed aptitude test. Applicant was later advised applicant passed test but failed oral interview. Com- mission dismissed applicant's com- plaint of discrimination. Applicant sought order directing commission to refer complaint to tribunal. Ap- plicant sought declaration com- mission did not conduct proper investigation. Application for judi- cial review was allowed. Applicant was not afforded investigation that considered problems inherent in applicant getting hired to respon- dent given applicant's disability. Investigator should have been able to clearly articulate applicant's in- dividual challenges apart from gen- eralized paragraph about Asperger Syndrome and autism. Investiga- tor's conclusions that no request was made for accommodations at oral interview were not reasonable. It was unreasonable commission was willing to accept strict rules within bargaining unit were acceptable and rationally connected to position de- spite potential for rules to supersede applicant's human rights. It was unreasonable for investigator not to identify fundamental problems with respondent's offers of accommoda- tion. Applicant was not faulted for refusing offers of accommodations. Lack of individualized assessment of interrelationship of applicant's disability and needed modifications to standards in hiring process and how corporate rules and collective agreements served to exclude appli- cant by way of applicant's need of accommodation. Davidson v. Canada Post Corp. (July 9, 2009, F.C., O'Keefe J., File No. T-967-08) Order No. 009/247/142 (46 pp.). Intellectual Property Industrial And PATENTS Prothonotary had same power and discretion to consolidate two proceedings under Rule 105 as case management judge Appeal by applicants from two orders of prothonotary which set same schedule for this application and another application involving same parties. Two schedules were exactly the same and provided that hearings of two applications would take place concurrently. Applicants contended that order under appeal was clearly wrong because there was no formal motion for consolidation of two proceedings and applicants did not have adequate opportunity to oppose consolidation. Appeal dismissed. In order to consolidate proceedings separate causes of ac- tion need not have completely common questions of law or fact but only some commonality. Con- solidation of proceedings may be ordered upon court's own initiative. Prothonotary had same power and discretion under Rule 385(1) of Federal Courts Rules (Can.), to set application to coincide with other application and to officially consoli- date two proceedings under Rule 105 as case management judge. Prothonotary's discretionary inter- When the entire firm has the same goal, success comes naturally. Une équipe avec un objectif commun : le succès dans la poche! SMSS.COM CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN'S StewartMcK_LT_Jan26_09.indd 1 www.lawtimesnews.com 1/20/09 11:42:32 AM

• Cover
• Big Businesses Get A Break
• Head Start
• Focus On Insurance Law