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PAGE 14 remedy is to set aside convic- tion. Where mistrial declared or conviction set aside Crown may proceed again by indict- ment unless court is satisfied this would amount to abuse of process. Where Crown elects to proceed summarily proceed- ings are governed by provisions of Part XXVII of Criminal Code including six month lim- itation period. Where accused does not consent to prosecu- tion of summary conviction proceeding outside of limita- tion period validity of Crown summary election and ensu- ing proceedings fatal. Crown summary election and ensuing proceedings are nullity and do not operate as bar on Crown's ability to then proceed by in- dictment. No Crown appeal against acquittal lies on ground that proceedings were statute- barred as it is Crown's respon- sibility to ensure properly insti- tuted proceedings. R. v. Dudley (Dec. 17, 2009, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Roth- stein and Cromwell JJ., File No. 32603) Appeal from 231 C.C.C. (3d) 80, 77 W.C.B. (2d) 277 dismissed. 86 W.C.B. (2d) 156 (40 pp.). Sexual Offences CHILD LURING Trial judge misapprehended elements of offence Accused communicated by computer with 12-year-old girl who claimed to be 13. Evi- dence was that accused did not have intention to meet with young person but only to have sexually explicit telephone and computer communication with her. Trial judge acquit- ted, finding that Crown did not prove beyond reasonable doubt that accused intended to facilitate offence of invitation to sexual touching. Trial judge misapprehended elements of offence. Crown not required to prove that acts of accused are objectively capable of facilitat- ing commission of specified of- fence against underage person. Crown must prove that on whole of evidence it is estab- lished beyond reasonable doubt that accused communicated by computer with underage per- son for purpose of facilitating specified secondary offence in respect of that person. R. v. Legare (Dec. 3, 2009, S.C.C., Binnie, LeBel, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 32829) Appeal from 236 C.C.C. (3d) 380, 79 W.C.B. (2d) 887 dis- missed. 86 W.C.B. (2d) 191 (19 pp.). FEDERAL COURT Constitutional Law CHARTER OF RIGHTS Deportation prior to consideration of humanitarian and compassionate factors did not engage rights under s. 7 of Charter Applicant abandoned refugee claim and received negative pre-removal risk assessment. Applicant lived in Canada with common law spouse and two children. Applicant was em- ployed from 2001 to 2008. Ap- plicant's deportation in 2008 was postponed. Applicant was arrested to failing to report to immigration officials. Com- mon law spouse paid $3,000 for applicant's release. Since arrest applicant was prohibited from working without Minis- ter's written authorization. Ap- plication for exemption based on humanitarian and compas- sionate grounds was denied. Applicant's request for fee ex- emption was denied. Appli- cation for judicial review was allowed. Applicant's motion to strike affidavit was allowed. Respondent's failure to permit cross-examination was suffi- cient justification for allowing motion. Applicant had stand- ing. Applicant was not able to afford to pay processing fees. Applicant and family were di- rectly affected. Court followed case law that s. 25(1) of Immi- gration and Refugee Protection Act (Can.), did not require Minister to consider request to exempt foreign national from payment of fees and deporta- tion prior to consideration of humanitarian and compassion- ate factors did not engage rights under s. 7 of Canadian Charter of Rights and Freedoms. Court followed case law that poverty was not analogous ground un- der s. 15 of Charter. Questions were certified. Ndungu v. Canada (Minister of Citizenship and Immigration) (Dec. 11, 2009, F.C., Snider J., File No. IMM-1088-09) 183 A.C.W.S. (3d) 1086 (13 pp.). Immigration REFUGEE STATUS Denial of Pakistani citizen's refugee claim upheld on review Application for judicial review of decision of Refugee Protec- tion Division of Immigration and Refugee Board denying refugee claim. Applicant was citizen of Pakistan and mem- ber of Pakistan Muslim League who had been active in party. Alleged motivation for perse- cution was applicant's political affiliation and participation in rallies to oppose ruling party. Board found that evidence sup- porting persecution on basis of political opinion not well- founded and found there was internal flight alternative to Lahore. Application dismissed. Applicant did not discharge onus of proof to demonstrate that he would be persecuted anywhere in country of origin or that it would unreasonable to expect him to move if an Internal Flight Alternative was found. Insufficient evidence to satisfy board that police con- tinued to be interested in ap- plicant. Reasonable for board CASELAW to look for corroborating evi- dence of persecution anywhere in country in order to find ob- jective fear given change in po- litical hierarchy since applicant fled Pakistan. Applicant's opin- ion as to links in police system and general influence exerted by ruling party on police not satisfactory for board to find serious possibility of risk of cruel and unusual punishment or death upon his return to Pakistan. Reasoning of board fell within range of reasonable outcomes. Butt v. Canada (Minister of Citizenship and Immigration) (Jan. 18, 2010, F.C., Pinard J., File No. IMM-2492-09) 183 A.C.W.S. (3d) 1083 (8 pp.). Denial of Haitian citizen's refugee claim upheld on review Application for judicial review of decision of Refugee Protec- tion Division of Immigration and Refugee Board determin- ing that applicants were nei- ther Convention Refugees nor persons in need of protection. Applicant B. was Haitian citi- zen who left country in April 2001 for United States where claim for asylum refused. B.'s son J. born in United States on November 1, 2006. B. ar- rived in Canada with her son J. in 2007 and claimed refugee protection. Board found that applicant did not discharge burden of establishing there was serious possibility of perse- cution or probable risk to life facing applicants in event they would have to return to their respective countries. Board not satisfied applicant would be at greater risk than other persons returning from stay abroad. Board found that applicant failed to prove MJPD the basis for her alleged fear existed in Haiti. Application dismissed. Board's finding that risk faced by applicant if she were to re- turn to Haiti would be gener- alized rather than personal risk fell within range of possible, acceptable outcomes. Elements on which board based its nega- tive credibility finding clear, precise and supported by evi- dence. Bosse v. Canada (Minister of Citizenship and Immigration) (Oct. 29, 2009, F.C., Beaudry J., File No. IMM-1974-09) 183 A.C.W.S. (3d) 1084 (5 pp.). ONTARIO CIVIL CASES Administrative Law FREEDOM OF INFORMATION Adjudicator's conclusion that records not "correctional" records was reasonable Adjudicator required disclo- sure to requester of records under Freedom of Information and Protection of Privacy Act (Ont.). Adjudicator concluded records of requester in custody www.lawtimesnews.com under remand were not correc- tional records within meaning of s. 49(e) of Act. Applicant sought to quash order. Appli- cation was dismissed. Decision was reasonable. Adjudicator's ruling that Minister did not discharge burden under Act was reasonable. Minister's sub- missions amounted to bald assertions of Minister's posi- tion. Adjudicator was entitled to assess wording of s. 49(e) of Act and to give word "correc- tional" its' plain and ordinary meaning. There was justifi- able, intelligible and transpar- ent reasoning path to tribu- nal's conclusion. Reasons were tenable to support decision. It was within range of acceptable outcomes that exemption in s. 49(e) stand as distinct enact- ment pertaining to confiden- tial records generated and kept for purposes of post conviction or correctional functions of Ministry. Ontario (Ministry of Communi- ty Safety and Correctional Servic- es) v. Ontario (Information and Privacy Commissioner) (Dec. 8, 2009, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Then R.S.J. and Carnwath JJ., File No. 163/06) 183 A.C.W.S. (3d) 886 (26 pp.). Bankruptcy And Insolvency OFFENCES Trustee authorized to initiate prosecution of bankrupt for offences under s. 198(2) of Bankruptcy and Insolvency Act (Can.) Application by trustee pursuant to s. 205 of Bankruptcy and In- solvency Act (Can.), for autho- rization to initiate proceedings for prosecution of bankrupt for offences under Criminal Code (Can.), and under Act. Bank- rupt lured victims to financial ruin in Ponzi scheme. Order made authorizing trustee to ini- tiate prosecution of bankrupt for offences under s. 198(2) of Act. Court declined to exercise discretion to authorize initia- tion of prosecution for fraud and/or theft under Code. Of- fences committed in connec- tion with bankrupt's estate but before there was any insolvency event. Scope of fraud massive but did not sufficiently offend Bankruptcy Court or insol- vency process to warrant pros- ecution by trustee. Court satis- fied that offences under Act of failing to make surplus income payments, of failing to file fi- nancial statements required by trustee and failing to provide other duties including keep- ing trustee informed of where- abouts had been committed by bankrupt and were sufficiently connected to administration of estate that it was proper to exercise discretion to authorize initiation of prosecution by trustee. White (Re) (Jan. 22, 2010, Ont. S.C.J., Registrar Nettie, File No. 31-428403) 183 A.C.W.S. (3d) 911 (8 pp.). March 8, 2010 • Law TiMes Civil Procedure DISCOVERY Cockpit voice recorder was to be produced Air France Aircraft overshot runway and crashed at Toronto Airport in thunderstorm. Class action was launched on be- half of passengers. Air France brought action against air- ports, NAV Canada and Attor- ney General of Canada. NAV brought motion for produc- tion of cockpit voice recorder (CVR). Request for production was opposed by Transportation Safety Board and two pilots' unions. They claimed contents of CVR should be suppressed in interests of aviation safety and personal privacy of pilots. Sec- tion 28 of Canadian Transpor- tation Accident Investigation and Safety Board Act provided CVR recording was privileged and was not to be released for use in litigation unless court concluded public interest in proper administration of jus- tice outweighed importance of privilege. CVR was to be produced. CVR was not to be made publicly available. CVR contained no private, preju- dicial or scandalous material. Contents of CVR were highly relevant, probative, reliable and of incalculable value in investi- gation of accident. Disclosure of CVR in case would not have chilling effect on communica- tion between pilots. Release of CVR would not damage rela- tionship between pilots and employer. Public interest in administration of justice out- weighed importance attached to statutory privilege. Societe Air France v. Greater To- ronto Airports Authority (Dec. 9, 2009, Ont. S.C.J., Strathy J., File No. 07-CV-337564; 05- CV-294746; 07-CV-337545; 07-CV-336943) 183 A.C.W.S. (3d) 948 (38 pp.). Conflict Of Laws JURISDICTION Hague Convention had no application Parties were married in Turkey in 1995 and came to Canada in 2006. Parties had one child who was born in Turkey. Ap- plicant sought interim order custody of child. Respondent brought motion that hearing of matter be transferred to Turkey and that child be returned to Turkey. Habitual residence of child from 2006 was Ontario. There was settled intention on part of both parties to reside in Ontario. Hague Convention had no application. Child was residing in Ontario with con- sent of respondent. Court had jurisdiction under s. 22 of Chil- dren's Law Reform Act (Ont.), to make order for custody and access regarding child. It was in best interests of child for appli- cant to have interim and sole custody. Parties did not com- municate effectively. Respon- dent inappropriately involved