Law Times

Law Times • November 24, 2008 CaseLawLaw SUPREME COURT OF CANADA Evidence ACCOMPLICES Trial judge understood that he could convict without corroboration of accomplice's evidence Accused appealed judgment re- versing his acquittal for break- ing and entering. L. confessed to break-in and was awaiting sentence at time of accused's trial. L.'s testimony implicated accused in offence. Trial judge concerned about accepting L.'s evidence and found no other evidence directly connecting accused to offence. Nova Sco- tia Court of Appeal allowed Crown's appeal on basis that trial judge erred in approach to corroboration and assessment of L.'s evidence. Cromwell J.A. dissenting, concluded that trial judge's error in holding that L.'s prior statement could have been admissible as corroboration, on its own, could not reasonably have affected verdict. Trial judge did not fail to assess L.'s credibil- ity or reject L.'s evidence without proper analysis. Trial judge un- derstood that he could convict even without corroboration but concluded, as he was entitled to do, that accused's participation in offence was not established beyond reasonable doubt. Ap- peal allowed for reasons given by Cromwell J.A. R. v. Dowe (Oct. 17, 2008, S.C.C., McLachlin C.J.C., Deschamps, Fish, Charron and Rothstein JJ., File No. 32493) Appeal from 228 C.C.C. (3d) 75, 76 W.C.B. (2d) 482 allowed. Order No. 008/296/027 (1 p.). Trial REASONS FOR JUDGMENT Reasons for judgment were required to explain why accused was convicted or acquitted, provide public accountability and permit effective appellate review his evidence, and failure to ex- plain his rejection of some of complainant's evidence as well as accused's plausible denial of charges. Appeal allowed. Rea- sons for judgment in criminal case were required to fulfill func- tions of explaining why accused was convicted or acquitted, pro- viding public accountability and permitting effective appellate review. Reasons must be suffi- cient to show why judge made decision, but did not require judge to set out every finding in process of arriving at verdict. Failure to make precise link be- tween each count and particular evidence supporting count was not error, though more precision would have been preferable. Rea- sons made clear that where there was conflict between evidence of complainant and evidence of accused, judge accepted that of complainant. Convictions them- selves raised reasonable inference that accused's denial of charges failed to raise reasonable doubt. Reasons met test of sufficiency. R. v. M. (R.E.) (Oct. 2, 2008, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Fish, Abella, Char- ron and Rothstein JJ., File No. 32038) Appeal from 218 C.C.C. (3d) 446, 72 W.C.B. (2d) 574 al- lowed. Order No. 008/280/316 (42 pp.). FEDERAL COURT OF APPEAL Customs and Excise SEIZURE Accused was convicted of three sexual offences based on 11 in- cidents involving complainant. Court of Appeal found trial judge's reasons for judgment failed to show he properly ap- plied principle of reasonable doubt and ordered new trial. Court found reasons insufficient for failure to explain which of offences were proved by which incidents, failure to mention some of accused's evidence and make general comments about Appellant appealed from deci- sion dismissing his application for judicial review of decision of Minister of Public Safety and Emergency Preparedness declin- ing to return currency seized from him by customs officer as he was about to depart for Sri Lanka. Currency seized and for- feited because appellant failed to declare it to customs officer as required by s. 12 of Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.). Officer had reasonable grounds to suspect that currency was proceeds of crime. Appellant ex- ercised his right to request Min- isterial review. In response to requests to provide evidence to support that money legitimately obtained, appellant provided af- fidavits from individuals indicat- ing they had provided money for When appellant unable to prove legitimacy of source of funds, Minister entitled to decline to exercise discretion to grant relief from forfeiture PAGE 13 COURT DECISIONS 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: ainmaker_LT_June2_08.indd 1 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. purchasing jewellery. Officer in- sisted on documentary evidence and, in absence of such, Minister concluded evidence did not sub- stantiate origin of currency. Ap- pellant's application for judicial review dismissed. Application judge held that Minister applied correct test by requiring proof beyond reasonable doubt that there were no reasonable grounds for suspicion. Further appeal to the Federal Court of Appeal dismissed. Once breach of s. 12 confirmed by Minister, forfei- ture complete and currency was property of Crown. Question remaining for determination un- der s. 29 was whether Minister would exercise his discretion to grant relief from forfeiture. Min- ister insisted upon proof of legit- imacy of source of funds as con- dition of exercising his discretion in favour of appellant. This was obvious approach, without pre- cluding possibility that Minister could be satisfied on this issue in other ways. When appellant un- able to provide proof requested, Minister entitled to decline to exercise his discretion to grant relief from forfeiture. Minister's decision under s. 29 reviewable on standard of reasonableness. Not unreasonable for Minister to decline to accept appellant's unverifiable affidavit evidence at face value. Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness) (Sep. 9, 2008, F.C.A., Nadon, Pelletier and Ryer JJ.A., File No. A-148-07) Appeal from 73 W.C.B. (2d) 278; 63 Admin. L.R. (4th) 161; 209 F.T.R. 114 dismissed. Order No. 008/281/018 (55 pp.). Taxation Application judge did not err in dismissing application for judi- cial review and relief in nature of mandamus to have residence of appellant family trust deter- mined pursuant to paragraph 4 of Article IV of Convention be- tween Canada and United States of America with Respect to Tax- es on Income and on Capital on ground that it was premature. As there was no existing liability to tax under current s. 94 of In- come Tax Act (Can.), appellant family trust was not resident of Canada pursuant to Article IV(2) and therefore not dual resident under Article IV(4) of Convention, no dual residency issues arose under Article IV(4) of Convention to current s. 94. 2005 Robert Julien Family Del- aware Dynasty Trust v. M.N.R. (Sep. 15, 2008, F.C.A., Le- tourneau, Noel and Trudel INCOME TAX Family trust was not dual resident www.lawtimesnews.com JJ.A., File No. A-503-07) Appeal from 161 A.C.W.S. (3d) 170; 2007 D.T.C. 5625; [2008] 1 C.T.C. 121; 318 F.T.R. 294 dismissed. Order No. 008/281/014 (10 pp.). FEDERAL COURT Administrative Law JUDICIAL REVIEW Filing of affidavit in support of judicial review by applicant's solicitor was not basis for striking out affidavit in its entirety Motion by Attorney General of Canada for order striking out all or parts of affidavit in support of application for judicial review. Cross-motion by applicant for leave to file additional affida- vit. Auditor General of Canada found problems with Govern- ment of Canada's sponsorship program and advertising activi- ties. Commission of inquiry was created to investigate, report on, and make recommendations with respect to these problems. Applicant had been Minister of governmental department that was responsible for sponsor- ship and advertising activities. Commissioner found applicant failed to give sufficient attention to adoption of Guidelines and that he was directly involved in funding decisions that gave pri- ority to partisan objectives. Ap- plicant brought application for judicial review of commission's fact-finding report on bases of reasonable apprehension of bias and making findings without re- gard to evidence. Applicant filed affidavit from one of his solici- tors. Purpose of affidavit was to introduce various exhibits as evi- dence. Applicant wished to file additional affidavit exhibiting newspaper article that contained comments from commissioner about commission counsel, for- mer Prime Minister, and com- missioner's daughter working at same law firm. Motion granted in part; cross-motion dismissed. Fact that affidavit was filed by one of applicant's solicitors did not provide basis for striking out affidavit in its entirety. Rule 82 of Federal Court Rules, 1998 (Can.), only applied to affida- vits signed by solicitor who was arguing case. In addition, ap- plicant would have been able to file identical affidavit himself. Exhibits duplicating evidence al- ready in record had to be struck. Exhibits relating to commission's second report dealing with rec- ommendations were struck since they were not relevant to review of fact-finding report. Book written about inner workings of commission was not struck as commissioner made comment in foreword that book was accurate. Author of book was not required to testify about contents of book. Newspaper articles that included quotes from commissioner were not struck while other articles that were not directly related to application were struck. Article exhibited in additional affidavit was of no value in this particular application. Gagliano v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activi- ties, Ex-Commissioner) (Sep. 5, 2008, F.C., Teitelbaum J., File No. T-2086-05) Order No. 008/259/021 (67 pp.). Intellectual Property Industrial And PATENTS Patent was ineligible for listing Application for judicial review of decision of Minister deter- mining that applicant's Patent was ineligible for listing on patent register. Applicant mar- keted drug C in Canada for relief of menopausal and post- menopausal symptoms occur- ring in naturally or surgically induced estrogen deficiency states. Medicinal ingredient in C was estradiol hemihydrate and drug was sold in Canada in transdermal "patch" dos- age form. Applicant did not contend that patent contained claim for change in formulation or change in use of medicinal ingredient. Rather applicant submitted that its SNDS ought to be considered submission for change in dosage form and further that patent contained claim for changed dosage form and was thus eligible for listing on Patent Register. Patents con- taining claim to dosage form first became eligible for listing on patent register with October 2006 amendments to Patented Medicines (Notice of Com- pliance) Regulations (Can.). Regulatory Impact Analysis Statement ("RIAS") which ac- companied amendments pro- vided that eligible dosage form patent must contain claim for novel delivery system for ad- ministering medicinal ingre- dient, claimed dosage form must be approved via NOC and patent must contain claim that included within its scope approved medicinal ingredi- ent. Parties agreed that claimed dosage form had been approved by NOC but disagreed as to whether patent contained claim for novel delivery system. Ap- plicant contended that Minister erred in interpreting definition

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