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PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Young Persons EVIDENCE Accused appealed decision al- lowing appeal from acquittal. Accused signed waiver of right to counsel, then gave inculpa- tory statement to police. Trial judge ruled statement inadmis- sible for non-compliance with s. 146(2)(b) and (4) of Youth Criminal Justice Act (Can.). Section 146(2)(b) provided that statement by young person only admissible if person in authority "clearly explained to the young person, in language appropri- ate to his or her age and under- standing" his or her rights under s. 146. Section 146(4) permitted waiver of right to consult coun- sel and another adult before making statement and to have such persons present while giv- ing statement. Appeal allowed and acquittal restored (Per Fish J. for majority): Crown not re- quired to prove that young per- son in fact understood rights. However, person in authority must have taken reasonable steps to ensure that young person ca- pable of understanding. Rea- sonable effort had to be made to become aware of relevant factors particular to individual young person in determining appropriate language to use in explanation Compliance with s. 146(2) and (4) had to be proven beyond reasonable doubt. Uni- form standard of proof prefer- able to fragmented approach and consistent with principles of statutory interpretation. Trial judge had reasonable doubt that accused's rights were explained in language appropriate to his understanding and that he un- derstood right to counsel and could validly waive it. Findings respecting compliance with s. 146 entitled to deference. (Per Rothstein J. for minority): Stan- dard of proof of compliance with s. 146(2)(b) and (4) was balance of probabilities, in accordance with common law rule for pre- liminary questions of fact gov- erning admissibility of evidence. Even if the trial judge had ap- plied proper standard, findings of non-compliance with s. 146 would have been the same. R. v. H. (L.T.) (Sep. 11, 2008, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abel- Compliance with ss. 146(2) and (4) of Youth Criminal Justice Act (Can.) must be proven beyond reasonable doubt la, Charron and Rothstein JJ., File No. 31763) Appeal from 213 C.C.C. (3d) 1, 71 W.C.B. (2d) 295 allowed. Order No. 008/259/063 (55 pp.). FEDERAL COURT OF APPEAL Employment Insurance ENTITLEMENT Umpire failed to detect board's legal error in not applying Umpire dismissed applicant's ap- peal from decision of Board of Referees that applicant was not entitled to benefits under Em- ployment Insurance Act (Can.), because he was self-employed during relevant period in his farming business to more than minor extent. Umpire commit- ted reviewable error in failing to detect legal error of board in not considering, and therefore not applying, objective test that was mandated by s. 30(2). Prior to commencement of Benefit Pe- riod, time spent by applicant in farming operations was such that it did not interfere with his main- tenance of full-time employment at plant for period of 13 years. This indicated relatively minor involvement on his part in farm- ing operations. Further, other factors, objectively considered, did not tend to indicate that ap- plicant would normally have re- lied on his engagement in farm- ing business in Benefit Period as his principal means of livelihood. Judicial review allowed. Decision of Umpire set aside. Matter re- ferred back to Chief Umpire for redetermination. Martens v. Canada (Attorney General) (July 18, 2008, F.C.A., Sharlow, Pelletier and Ryer JJ.A., File No. A-256-07) Order No. 008/224/099 (25 pp.). objective test mandated by s. 30(2) of Employment Insurance Act (Can.) FEDERAL COURT Intellectual Property Industrial And Applicant sought to strike three registrations of Hotel Marks originally registered to respon- dent. Each of Hotel Marks was registered in respect of "hotel services associated with a chain TRADE-MARKS Applicant was not "person inter- ested" for purposes of s. 57(1) of Trade-marks Act (Can.) OctOber 27, 2008 • Law times 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. of luxury hotels". Applicant did not oppose registration of Hotel Marks and waited only one day short of five years af- ter registration of Hotel Marks to commence this proceeding. Applicant had not acted as if it perceived itself to be person af- fected, or who reasonably ap- prehended that it may be af- fected, by entry of Hotel Marks on register. Applicant was not "person interested" for purposes of s. 57(1) of Trade-marks Act (Can.), and therefore person en- titled to bring this application. In any event, none of such trade- marks was confusing, at date of registration, with unregistered trade-marks and trade-name of applicant and all of such marks were distinctive of services in as- sociation with which they were registered by respondent, at time this proceeding was commenced. Respondent was person entitled to secure registration of those marks .Application dismissed. Fairmont Resort Properties Ltd. v. Fairmont Hotel Management, L.P. (July 21, 2008, F.C., Gib- son J., File No. T-1041-05) Or- der No. 008/224/091 (47 pp.). Evidence PRIVILEGE Disclosure order issued, subject to terms necessary to limit injury to Canada's national interest finding that Charter was engaged because applicant detained under conditions violating international law obligations weighed heavily in favour of disclosure, despite po- tential injury to Canada's national interests. Videotapes of interviews contained content that could sup- port applicant's allegations that he suffered abuse during detention. Videotapes relevant and should be disclosed, subject to condition that sensitive audio information and images of faces of govern- ment agents to be removed, as disclosure would harm protected national interests and not assist applicant in making full answer and defence. Reports prepared by U.S. agents referring to statements made by applicant during inter- views were to be disclosed. Any harm to international relations by disclosure of information relevant to applicant's complaints of abuse was minimized by fact that use of interrogation techniques by U.S. military was matter of public re- cord. In any event, public interest in disclosure outweighed public interest in non-disclosure. Gener- al public disclosure of information not ordered but applicant could release information to media if desired for purposes of defence. Khadr v. Canada (Attorney General) (June 25, 2008, F.C., Mosley J., File No. DES-1- 08) Order No. 008/197/002 (37 pp.). Applicant faced charges at United States military base in Guantana- mo Bay, Cuba. Canadian officials interviewed applicant for intelli- gence collection. Supreme Court of Canada found that s. 7 of Canadian Charter of Rights and Freedoms entitled applicant to disclosure of records of interviews and records of information given to U.S. authorities as direct con- sequence of interviews. Supreme Court directed government offi- cials to produce such materials to judge for purpose of making dis- closure order after consideration of national security interests, includ- ing any claims under of Canada Evidence Act, R.S.C. 1985, c. C-5 ("CEA"). Media organizations were granted leave to intervene for limited purpose of making submissions on public disclosure of information. Private order is- sued, specifying information to be disclosed, subject to terms neces- sary to limit injury to Canada's na- tional interest. Court's jurisdiction flowed from Charter remedy, not from authority under CEA. Court guided by Stinchcombe principles but, based on narrowing of obli- gation by Supreme Court, only to extent that material linked to Canada's direct involvement in foreign proceedings through inter- views of applicant and sharing of results with U.S. Supreme Court's www.lawtimesnews.com Torts Application for declaration that respondents were using business name that was confusingly similar to applicant's unregistered trade mark and for injunctive relief restraining use of this name. Ap- plicant had used business name "PharmaCommunications" since applicant's incorporation in 1995 while applicant's predecessors had used this name since 1982. Respondent was incorporated in 2004 and registered name "Phar- macomm" under Business Names Act (Ont.), later that year. Appli- cant alleged respondent was com- petitor in pharmaceutical mar- keting sector and that its name was causing confusion among applicant's clients. Application dismissed. Various elements of passing off did not have to be considered as applicant failed to establish actual or potential dam- age. Applicant simply focussed on issue of confusion without providing any evidence as to ac- tual or potential damage. Actual or potential damage could not be presumed but rather had to be established through evidence. Ap- plicant did not even mention ac- PASSING OFF Actual or potential damage had to be established through evidence tual or potential damage in notice of application or memorandum of fact and law. Pharmacommunications Holdings Inc. v. Avencia International Inc. (July 2, 2008, F.C., Frenette J., File No. T-2278-06) Order No. 008/198/024 (24 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Accused lawfully detained as part of Highway Traffic Act (Ont.) investigation Application by accused persons to exclude evidence obtained in breach of ss. 8, 9, and 10(b) of the Charter. Accused persons broke into private residence and assaulted occupants. Witness saw perpetrators flee in pickup truck. Officers who stopped pickup truck for speeding an hour later unaware of home in- vasion or police bulletin regard- ing pickup truck. Accused driver of truck was evasive and vague. Police asked three passengers to identify themselves and noted that they were all wearing dark clothes. Officer did not tell pas- sengers that they did not have to respond to request or that they had the right to call a lawyer. Passengers identified themselves willingly and without hesita- tion. Criminal check revealed that all occupants of truck had criminal records. Accused driver issued speeding ticket and pick- up truck drove away. Applica- tion dismissed. Police did not make threats, offer promises, or engage in trickery when asking occupants of vehicle to divulge names and dates of birth. Each occupant had an operating mind when they answered ques- tions posed by police. Crown proved beyond reasonable doubt that statements given to police were voluntary. Accused occu- pants lawfully detained as part of Highway Traffic Act (Ont.) investigation. Lawful detention did not trigger right to counsel. No breach of s. 9 or s. 10(b) of the Charter. Search of accused persons began when police for- warded their names and dates of birth to police database. Request by police for identification did not constitute search or seizure under s. 8 of the Charter. Even if accused occupants felt com- pelled to identify themselves that fact did not operate to ren- der what was otherwise constitu- tional into breach of s. 8.

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