Law Times

Page 14 May 9, 2016 • Law TiMes www.lawtimesnews.com Supreme Court of Canada Charter of Rights FUNDAMENTAL JUSTICE Section 117 of Immigration and Refugee Protection Act (Can.) declared overbroad Accused charged with human smuggling under s. 117 of Im- migration and Refugee Protec- tion Act. Section 117 prohibits organizing, inducing, aiding, or abetting persons to illegally en- ter Canada. Attorney General must authorize prosecutions pursuant to s. 117(4). Trial judge found that section was uncon- stitutionally overbroad. Court of Appeal allowed Crown's appeal and found section constitution- ally compliant. Appeal allowed. Section is overbroad in permit- ting prosecution of persons aid- ing family members or provid- ing humanitarian aid. Ministe- rial discretion not to prosecute did not cure overbreadth. Crown had not shown that overbreadth was demonstrably justified. Ap- propriate remedy was to read down s. 117 as not applicable to persons who give humanitar- ian, mutual or family assistance. R. v. Appulonappa (Nov. 27, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., 35958) Decision at 113 W.C.B. (2d) 108 was re- versed. 128 W.C.B. (2d) 236. Evidence ADMISSIBILITY Admitting evidence would not greatly undermine public confidence in rule of law When police intercepted car driven by accused, latter at- tempted to f lee police. Police rapidly got out of their car and asked several questions to ac- cused who admitted that he did not have driver's licence. Ac- cused was arrested and charged with driving while prohibited by court order and with fail- ure to comply with probation order. Accused unsuccessfully brought motion seeking to ex- clude evidence and was found guilty as charged. Accused ap- pealed to Court of Appeal. Ma- jority at Court of Appeal agreed with trial judge that evidence should not be excluded. Police officers were justified to take rapid actions when accused at- tempted to f lee on foot. Admit- ting evidence would not greatly undermine public confidence in rule of law. Impact of breach on accused's protected interest in informed choice was less sig- nificant. Evidence should not be excluded to preserve integrity of justice system. Rule against multiple convictions was inap- plicable here because there were two separate criminal offences. Court of Appeal dismissed ap- peal. Accused appealed. Appeal was dismissed. Reasons given by majority at Court of Appeal were agreed with. Therefore, appeal should be dismissed. R. c. Gagnon (Feb. 23, 2016, S.C.C., Cromwell J., Wagner J., Gascon J., Côté J., and Brown J., 36581) Decision at 124 W.C.B. (2d) 122 was affirmed. 128 W.C.B. (2d) 250. Murder FIRST DEGREE MURDER Conviction for first degree murder reinstated on further appeal Deceased was shot and stabbed in his apartment. Investigation revealed that accused's DNA was found mixed with de- ceased's DNA in many areas of crime scene. Accused claimed he was acting in self-defence. Accused was convicted of first degree murder. Accused's ap- peal was allowed and conviction for second degree murder was substituted. Majority found that accused's unlawful confinement of deceased was coextensive with acts that caused his death such that first degree murder was not established. Crown ap- pealed. Appeal allowed. On evi- dence, it was open to trial judge to conclude that act of forcible or unlawful confinement, which occurred when accused pre- vented deceased from escaping through front door of apart- ment, was distinct and indepen- dent. Conviction for first degree murder would be reinstated. R. v. Newman (Feb. 26, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., 36524) Decision at 123 W.C.B. (2d) 269 was re- versed. 128 W.C.B. (2d) 269. Federal Court of Appeal Industrial and Intellectual Property TRADEMARKS Appellants would not be preju- diced if respondents elected accounting of profits Court allowed respondents' ap- peal in part, finding that there was likelihood of confusion be- tween appellants' no-name ciga- rettes and respondents' MARL- BORO, especially in "dark mar- ket", and therefore infringement of respondents' trademark. Mat- ter was referred back to judge, who allowed respondents to elect accounting of profits. Ap- pellants appealed. Appeal dis- missed. Judge turned his mind to restitutionary purpose of remedy as he weighed relevant factors. Judge clearly considered all of issues and evidence in con- cluding that calculation of dam- ages was likely to be as complex as accounting of profits. Causal link had been established be- tween damages suffered and use of their property by appel- lants. Court had determined that there was confusion and in- fringement, which was source of appellants' unjust enrichment. Appellants would not be preju- diced if respondents elected ac- counting of profits in view of parallel litigation that had been initiated by respondents alleging infringement of their MARL- BORO trademark. When either infringement proceeding or reference was ready to be heard, other proceeding could be stayed until decision was rendered. Philip Morris Products S.A. v. Marlboro Canada Ltd. (Feb. 17, 2016, F.C.A., Johanne Trudel J.A., A.F. Scott J.A., and Rich- ard Boivin J.A., A-187-15) 264 A.C.W.S. (3d) 186. Taxation INCOME TAX Subsection 242(1) of Business Corporations Act (Ont.) does not authorize dissolved corpora- tion to initiate civil proceeding. Appellant was incorporated in 2000 pursuant to Business Cor- porations Act (Ont.) and dis- solved in 2007. In 2010, Minis- ter of National Revenue issued notice of assessment against ap- pellant in respect of tax indebt- edness of related corporation. Minister confirmed assessment when appellant objected. Ap- pellant filed notice of appeal in Tax Court. Tax Court held that appellant lacked capacity to ini- tiate appeal and adjourned ap- pellant's pending appeal to allow appellant to revive its corporate status. Appellant instead ap- pealed Tax Court's order. Sec- tion 242(1) of Act provides that civil, criminal or administrative actions or proceedings may be brought against corporation as if corporation had not been dis- solved. Tax Court distinguished previous decisions on basis that Act was subsequently amended. Appeal dismissed. No distinc- tion of substance between words "in the same manner and to the same extent as if it had not been dissolved" and "shall be deemed for all purposes to have never been dissolved". Previous deci- sions, however, were no longer good law. Procedure differed significantly from that now in place and in place at time of deci- sions. It was no longer correct to say that filing of notice of appeal in Tax Court does not consti- tute initiation of legal proceed- ing. Fact that legal proceeding is directed against Minister's as- sessment does not detract from conclusion that by filing notice of appeal in Tax Court, one in- stitutes legal proceeding. Sub- section 242(1) of Act does not authorize dissolved corporation to initiate civil proceeding. Tax Court did not err by adjourn- ing appeal and requiring appel- lant to revive its corporate status so it could continue the appeal. 1455257 Ontario Inc. v. R. (Mar. 30, 2016, F.C.A., Eleanor R. Dawson J.A., D.G. Near J.A., and Richard Boivin J.A., A-319- 15) Decision at 254 A.C.W.S. (3d) 975 was affirmed. 264 A.C.W.S. (3d) 255. Federal Court Evidence OPINION EVIDENCE First Nations granted leave to file expert report and call expert as witness First Nations commenced ac- tion against federal government in 1992 for relief for breach of fi- duciary duty in making certain treaties in 1923. Federal govern- ment commenced third-party claim against provincial govern- ment. Parties engaged in nego- tiations until 2000. First Nations hired expert S to interview First Nations' members to assist in identifying potential witnesses. Expert S interviewed 174 mem- bers of First Nations and began drafting expert report on First Nations' oral history of trea- ties based on these interviews. Report was not completed, and First Nations indicated in 2007 that they would not rely on it. Expert passed away in 2012. Trial commenced some weeks later. First Nations' oral his- tory of events became relevant in 2013 when anomalies were discovered in original treaties. First Nations hired expert M to prepare expert report based on expert S's work. First Nations brought motion for leave to file expert M's report and to call him as expert witness. Motion granted on terms. Comprehen- sive order was made regarding conduct of trial, including how expert M's evidence was to be addressed. First Nations' oral narratives recorded by expert S and analysed by expert M con- stituted both oral history evi- dence and hearsay evidence on treaties. Expert M was anthro- pologist who could be expected to provide expert evidence in his field of expertise. Interviews might be hearsay, but expert M's report was not. Expert M's report was relevant and neces- sary. Preliminary findings about admissibility were not findings of fact, which were made only when evidence was complete at end of trial. Since expert S en- gaged in research using academ- ically accepted approach, and since expert M was available for cross-examination, reliability and trustworthiness of expert S's work could be assessed through expert M's expert testimony. Some First Nation interview- ees would be available to testify and be cross-examined. In ad- dition, federal and provincial governments identified archi- val oral history recordings that were also available for compari- son. Various mitigative mea- sures would adequately address much prejudice arising from late filing of expert M's report. Alderville Indian Band v. R. (Jul. 28, 2015, F.C., Leonard S. Mandamin J., T-195-92) 264 A.C.W.S. (3d) 1. Ontario Civil Cases Civil Procedure TRIAL Trial judge did not err in refusing adjournment Trial judge found appellants fraudulently submitted false in- formation to respondent bank in order to obtain loans and found them liable for over $10 million in damages for fraudulent mis- representation, negligent mis- representation, conversion and conspiracy. Events giving rise to litigation occurred in 2007. Appellants commenced action claiming declarations they were not liable on guarantees. Bank counterclaimed. Three weeks before trial, appellants served notices of intention to act in per- son. They stated they would not be pursuing their claim and trial to proceed on counterclaim. Days before trial, however, ap- pellants advised bank's counsel they would be seeking adjourn- ment to retain new counsel, explaining that they hoped to settle up to last minute. Appel- lant P produced doctor's letter stating he was being treated for depression and could not par- ticipate in legal proceedings un- til his condition improved. His condition was long-standing but he obtained letter on day he filed notice of intention to act in person. Bank opposed ad- journment. Trial judge refused adjournment, finding that trial had been scheduled for a year, it was appellants' obligation to proceed expeditiously, it would likely be another year before an- other trial could be scheduled, appellants signified intention to act in person and had not taken any steps to consult with coun- sel in interim and P's medical condition not raised until ad- journment sought. Appellants CASELAW CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. 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