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Page 14 November 23, 2015 • Law Times www.lawtimesnews.com There was no basis to find GIC's justification decision was taken without regard for purpose of act, that economic consider- ations were not taken into ac- count, or that decision was not reasonable on facts. Peace Valley Landowner Assn. v. Canada (Attorney General) (Aug. 28, 2015, F.C., Michael D. Manson J., File No. T-2300-14) 258 A.C.W.S. (3d) 87. ONTARIO CRIMINAL CASES Evidence CHARACTER EVIDENCE Real danger existed that jury could convict based solely on fact that accused was gang member Accused was charged with at- tempted murder and discharg- ing firearm with intent to wound. Identity of shooter was at issue and Crown sought to in- troduce discreditable conduct of accused as part of its theory that accused was ordered to commit offence as lieutenant in gang. Crown sought to identify boss and other accused as being gang members with accused ar- guing Crown could introduce its theory by fact all of them had grown up in same neighbour- hood. Application dismissed. There was real danger that jury could convict accused based solely on fact that accused was member in gang. Crown could introduce its theory through other means that would not be so prejudicial to accused. R. v. Charlton (Sep. 25, 2015, Ont. S.C.J., Barnes J., File No. CRIMJ(P) 250/13) 124 W.C.B. (2d) 471. IDENTIT Y Reasons for acceptance of identi- fication evidence did not permit meaning ful appellate review Accused appealed his convic- tions for possession of heroin for purposes of trafficking and breaking and entering, sub- mitting that convictions were unreasonable and that trial judge provided insufficient rea- sons for finding him guilty on breaking and entering count. On breaking and entering count, Crown's case rested en- tirely on complainant's identifi- cation of accused in police pho- to lineup as intruder who broke into his home. At trial accused raised four arguments on issue of identification: complainant observed accused for only few seconds in traumatic situation upon waking up, and without his glasses on; accused's neck tattoos were not "tribal art" as described by complainant, but were English words; complain- ant's roommate was not able to identify accused as intruder; and there were inherent frail- ties with eyewitness identifi- cation evidence generally and certainty should not be con- fused with reliability. Accused submitted that fact that tattoos on his neck were misidentified by complainant was exculpa- tory evidence that rendered verdict unreasonable and re- quired entering of acquittal. Appeal allowed; new trial or- dered. Evidence regarding neck tattoos was only one part, albeit important part, of evidence on identification. There were oth- er features (e.g. accused's bone structure and ethnicity) relied upon by complainant to iden- tify accused in photo lineup. Court could not conclude that trier of fact acting reasonably on this record could not con- vict accused, who had not met his onus of establishing that conviction was unreasonable. However, new trial required on breaking and entering count as trial judge's reasons for judg- ment on this count consisted of one sentence to effect that he was satisfied beyond reason- able doubt that complainant identified accused. Reasons did not permit meaningful ap- pellate review. Nowhere did trial judge address any of ac- cused's submissions on frailties in identification evidence and thus his reasoning process on these issues was not apparent. There was no basis in record to conclude that trial judge seized upon danger of equating con- fidence level of identification witness with accuracy of his evidence. To contrary, from exchange with defence counsel it appeared that trial judge may have engaged in this impermis- sible reasoning. R. v. Menzies (Aug. 31, 2015, Ont. C.A., John Laskin J.A., C.W. Hourigan J.A., and G. Pardu J.A., File No. CA C58532) 124 W.C.B. (2d) 428. SIMILAR FACTS There was significant number of similarities between four robberies Two accused were alleged to be parties to certain robberies from 117-count information regarding number of robberies of contents of tractor trailers involving number of individu- als. Accused agreed to commit- tal on some charges and on oth- ers presiding judge determined there was sufficient evidence to commit. Crown took issue with decision to discharge both ac- cused from charges related to particular robbery, and applied for mandamus, with certiorari in aid, to seek their committal. Crown alleged presiding justice exceeded his jurisdiction by failing to consider all evidence at preliminary hearing, in par- ticular, similar fact evidence of other robberies. Similar fact evidence was admissible. There was significant number of similarities between four robberies. All robberies involve theft of tractor trailer contents. All robberies required one of perpetrators to have ability to drive tractor trailer. All robber- ies involved kidnapping of trac- tor trailer driver in three cases or security guard guarding tractor trailers in fourth. All robberies involved use of gun to obtain compliance by driv- ers or guard with robber's de- mands. All robberies involved forcible confinement in tractor trailer or tractor or container. Drivers and guard were tied up using tape. Use of tractor trailer sleeper or bunk behind front seat to confine drivers, was common in number of rob- beries. In two of cases, robbers chose to take driver/security guard's ATM card, force him to disclose pin so that robbers could take money from hos- tage's bank account. Tractor trailers with drivers/security guard were driven by robbers. In case of three of robberies, tractor trailers were driven to different location with driver inside and then abandoned while drivers were still tied up. Conversation between robbers during robbery was in foreign language, in three cases iden- tified as Sri Lankan. Tractor trailers were driven significant distance away from robber- ies for purpose of unloading tractors. Another individual had admitted and common involvement in certain of trac- tor trailer robberies. Timing of tractor trailer robberies were within few weeks of each other. Court found there was very high degree of similarity be- tween four robberies. Probative value being so high, it overcame lesser prejudicial value from this evidence. R. v. Pathmanathan (Sep. 21, 2015, Ont. S.C.J., Ricchetti J., File No. CR-13/697) 124 W.C.B. (2d) 490. Mental Illness ADVISORY REVIEW BOARD Concept of "disease of the mind" had no application to inquiry under s. 672.54 of Criminal Code Patient submitted that board had no jurisdiction to make any order under s. 672.54 of Crimi- nal Code because patient did not suffer from "disease of the mind". Appeal dismissed. Pa- tient misunderstood jurisdic- tion. Board was statutory body and its jurisdiction over patient came from relevant provisions of Criminal Code. That juris- diction was not affect by asser- tions of patient, or even medical evidence to effect that patient did not and never did have disease of mind. Concept of "disease of the mind" was legal one with such determination being made by court in crimi- nal proceeding. Concept had no application to inquiry under s. 672.54 which was concerned with safety of public and mental health of "accused". There was no merit to Charter arguments. R. v. Smethurst (Sep. 24, 2015, Ont. C.A., Doherty J.A., Tull- och J.A., and Huscroft J.A., File No. CA C58603) 124 W.C.B. (2d) 476. Sexual Offences INVITATION TO SEXUAL TOUCHING Convictions on invitation to sexual touching counts not inconsistent with acquit- tal on sexual assault count Appeal by accused from his convictions on two counts of invitation to sexual touching of child. Jury acquitted him of sexual assault. Accused claimed these verdicts were inconsistent and he submitted that convic- tions for invitation charges should be set aside. Complain- ant testified that when she was 13 years accused forced her to engage in sexual activities with him. Appeal dismissed. Trial judge correctly instructed jury as to elements of offences and she accurately summarized evi- dence. There was no logical in- consistency between conviction on invitation to sexual touching counts and acquittal on sexual assault count. Jury could have accepted some, none or all of complainant's evidence. Trial counsel did not object to any aspect of jury charge now chal- lenged on appeal. Convictions were reasonable and were am- ply supported by evidence. R. v. Tyler (Sep. 8, 2015, Ont. C.A., John Laskin J.A., C.W. Hourigan J.A., and G. Pardu J.A., File No. CA C57981) 124 W.C.B. (2d) 419. ONTARIO CIVIL CASES Conflict of Laws LETTERS ROGATORY Application for orders giving effect to letters rogatory was dismissed Plaintiff commenced action in United States District Court ("USDC") against company based in Ontario seeking to recover some $30 million al- legedly owed for satellite and telecommunications services provided pursuant to various agreements, including one en- tered March 2009. Defendant filed counterclaim alleging agreement should be rescind- ed for misrepresentation. At plaintiff 's request, and with defendant's consent, USDC is- sued letters rogatory to compel defendant's former in-house counsel, chief financial officer and chief operating officer to attend to be examined under oath in Toronto. Plaintiff then brought application under s. 60 of Evidence Act for orders giv- ing effect to letters rogatory in relation to counsel and CFO, but not COO. CFO consented. Counsel objected on basis she had no relevant evidence, hav- ing ceased employment with defendant in December 2008, evidence sought could be ob- tained from CFO and COO, giving evidence would violate her obligations of confidential- ity and attending examination would be burdensome to her as sole practitioner. Application dismissed. Plaintiff had not established counsel had any relevant evidence that could not be obtained from CFO and COO. There was no question COO had specific knowledge of broader range of matters than counsel. Why plaintiff chose not to steps to examine him was mystery. In those cir- cumstances, requiring counsel to attend examination would impose unfair burden upon her. Application should be dis- missed without prejudice to plaintiff 's right to bring further application after examinations of CFO and COO if necessary. Intelsat USA Sales LLC v. Hyde (Sep. 16, 2015, Ont. S.C.J., M.D. Faieta J., File No. CV-15- 53057) 258 A.C.W.S. (3d) 52. Evidence ADMISSIBILIT Y Statements to be redacted to con- form with Apology Act, 2009 Plaintiff was guest of defen- dant homeowners. Resident was close to harbour entrance. Plaintiff allegedly was never at residence before and was not warned of possible hazards of swimming off homeown- ers' dock. Plaintiff was swim- ming in proximity to harbour entrance. Plaintiff was injured when she was struck by motor- boat. Plaintiff brought action in negligence. Plaintiff proposed to call witness who would say she was told by homeowners that they knew swimming at end of their dock was danger- ous. Homeowners asserted evi- dence was coupled with apolo- gy and entire paragraph was in- admissible under provisions of Apology Act, 2009. Anticipated evidence contained separate sentences, with each sentence being separate thought. Sec- ond and fourth sentences of ex- cerpt were to be redacted so as to conform with requirements of Act. Statements in question each conveyed separate and distinct thoughts or messages. There were statements of fact and statements of regret. Cormack v. Chalmers (Sep. 8, 2015, Ont. S.C.J., Timothy Ray J., File No. CV-12-0240-00) 258 A.C.W.S. (3d) 88. Industrial and Intellectual Property PATENTS Not plain and obvi- ous that Monopolies Acts were no longer in force Plaintiff and defendant were both pharmaceutical manu- facturers. In 2001 defendant obtained patent for existing drug, commenced marketing drug in 2004, and sold drug at allegedly monopoly prices until 2010. By October 2008, A had developed its own version of drug. Defendant sought prohi- bition order that was eventually dismissed in 2010 and plaintiff was permitted to sell its ver- sion of drug by issue of notice of compliance. In 2011, plain- tiff brought action for damages against defendant pursuant to Statute of Monopolies, which was 1624 British Act, and 1897 Ontario re-enactment of it (Monopolies Acts). Defendant brought motion for order strik- ing out Monopolies Acts claims in statement of claim. Motion dismissed. Defendant claimed CASELAW

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