Law Times

LAW TIMES / AUGUST 11-18, 2008 CaseLawLaw SUPREME COURT OF CANADA Evidence CREDIBILITY Trial judge failed to explain Accused convicted of sexual assault and sexual exploitation of a person with a disability contrary to ss. 271(1)(a) and 153.1(1) of Crimi- nal Code. Court held a voir dire to determine whether complainant was competent to testify. During testimony on voir dire, complain- ant contradicted herself on ques- tion of whether she knew what it meant to tell truth, and stated that she sometimes invented stories. At trial, complainant provided some contradictory answers and two wit- nesses testified that complainant could be untruthful and manipula- tive. In considering complainant's credibility, trial judge did not refer to evidence that complainant, by her own admission, had tendency to lie, but rather observed that she only contradicted herself on certain details that the Court did not consider important enough to affect her credibility. Accused ap- pealed his conviction on grounds that trial judge misdirected him- self on issue of credibility. Major- ity of Court of Appeal dismissed appeal. Accused appealed. Appeal allowed. Trial judge erred by fail- ing to explain how he reconciled inconsistencies in complainant's testimony regarding whether she invented the allegations. This fail- ure to provide such an explanation prejudiced accused's legal right to appeal. Complainant's testimony wavered on central issue at trial: that is, whether accused commit- ted acts for which he was charged, or whether story was invented. It was incumbent upon trial judge to explain how he resolved these diffi- culties to reach verdict, particularly in light of accused's own evidence denying allegations. R. v. Dinardo (May 9, 2008, S.C.C., Bastarache, Binnie, LeB- el, Deschamps, Fish, Abella and Charron JJ., File No. 31918) Ap- peal from 75 W.C.B. (2d) 657 al- lowed. Order No. 008/133/101 (26 pp.). reconciliation of inconsistencies in complainant's testimony HEARSAY No error in admission of witnesses' prior statements under principled approach several months later, they both gave statement to police identify- ing accused as assailant. At trial, both witnesses recanted identifi- cation. P testified that she used accused's name in statement to police because someone had sug- gested him to her as assailant. Trial judge admitted P's statement to police under principled approach to hearsay and convicted accused primarily on basis of P's identifica- tion of accused. Court of Appeal dismissed accused's appeal, finding statement was properly admitted. Accused appealed. Appeal dis- missed. Trial judge did not err in admitting C's statement to police and there was no reason to inter- fere with finding that C's identi- fication of accused was not based on what someone else had told her, but rather was based on C's own observations and therefore not hearsay. Trial judge did not err in admitting statement under the principled approach: necessity was conceded and there was a mean- ingful opportunity for the defence to test the truthfulness and accu- racy of C's evidence through cross- examination. Although identifica- tion evidence was not ideal, it did not render verdict unreasonable. R. v. Devine (June 19, 2008, S.C.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 31893) Appeal from 218 C.C.C. (3d) 497 dismissed. Order No. 008/175/083 (23 pp.). Young Persons SENTENCE Onus requirements in Accused appealed conviction for robbery and assault causing bodily harm. Complainant, S, was robbed and severely beaten. Immediately following attack, S and witness, P, refused to give statement, but Accused young person plead- ed guilty to manslaughter and sought a youth sentence un- der Youth Criminal Justice Act (Can.) ("YCJA"). Adult sentence presumed to apply unless ac- cused could show why it should not. Accused challenged consti- tutionality of presumption and his onus to discharge it. Trial judge allowed accused's applica- tion and ordered maximum al- lowable youth sentence. Accused also challenged constitutionality of provision that requires young person to justify continuance of publication ban. The trial judge allowed the Charter challenge and the Court of Appeal held that publication ban provisions contravened s. 7 of Charter of Rights. Court of Appeal upheld decision. Crown appealed. Ap- peal dismissed. Onus provisions in presumptive offences were not in accordance with principles of fundamental justice. Young people entitled to presumption of diminished moral blamewor- thiness, and presumption of Criminal Justice Act (Can.) violated principles of fundamental justice presumptive offences under Youth PAGE 17 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. adult sentence inconsistent with that entitlement. By depriving young people of presumption of diminished moral blameworthi- ness because of nature of crime and despite their age, and by putting onus on them to prove entitlement to procedural and substantive pro- tections, onus provisions infringed a principle of fundamental justice. Onus requirements not justified under s. 1 of Charter and therefore unconstitutional. Onus on young people to demonstrate why they remained entitled to ongoing pro- tection of publication ban was in violation of s. 7 of Charter. Since publication ban was part of sen- tence, lifting ban made sentence more severe, so onus should have been on Crown to justify increased severity. Onus requirements not justified under s. 1 of Charter. R. v. B. (D.) (May 16, 2008, S.C.C., McLachlin C.J.C., Basta- rache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Roth- stein JJ., File No. 31460) Appeal from 206 C.C.C. (3d) 289, 69 W.C.B. (2d) 31 dismissed. Order No. 008/142/128 (89 pp.). FEDERAL COURT Administrative Law Parties entered contract. Ap- plicant undertook to perform work for project on behalf of respondent. Disputes were to be resolved by arbitration. Problems arose in relation to project. Re- spondent terminated contract. Panel allowed applicant's claim in part. Applicant sought judicial review. Respondent's motion to strike application was allowed to extent application relied on pow- er to issue declaratory relief con- ferred on court by Federal Courts Act (Can.). Panel was not federal board. Application was stayed. Matter was deferred to arbitrators to determine challenge to juris- diction and to complete arbitra- tion and make final award. GPEC International Ltd. v. Ca- nadian Commercial Corp. (Apr. 2, 2008, F.C., Hugessen J., File No. T-2048-07) Order No. 008/105/097 (15 pp.). JURISDICTION Panel was not federal board Citizenship QUALIFICATIONS Applicant clearly understood grounds for refusal to grant citizenship judge to determine whether he was eligible for Canadian citizen- ship. Applicant responded correct- ly to all questions except he failed to provide one part of mandatory question regarding eligibility to vote in Canadian federal elections. Application dismissed. Judge based decision on failure to answer man- datory question wholly correct and thus the decision was not un- reasonable. Applicant not denied procedural fairness. Applicant had clearly understood grounds for re- fusal as he knew it was failure to mention one of tripartite test for vote eligibility. Wang v. Canada (Minister of Citizenship and Immigration) (Mar. 27, 2008, F.C., Russell J., File No. T-1041-07) Order No. 008/098/096 (15 pp.). Employment Insurance Applicant appealed decision refus- ing to grant citizenship. Applicant had defaulted from two scheduled tests on knowledge of Canada and thus had been brought before a www.lawtimesnews.com Application for judicial review of decision of Umpire dismissing ap- peal of respondent to set aside de- cision of Board of Referees which had concluded that respondent was available for work and was entitled to benefits under Em- ployment Insurance Act (Can.).. Respondent had applied for uni- versity admission in March 2005 for courses to begin in September 2005. Her contract of employ- ment expired in July 2005. Re- spondent filed claim for EI on July 30, 2005. Commission required respondent to fill our question- naire that would indicate whether she was ready, willing and able to work each day and make efforts to find work. Respondent indicated in questionnaire that she would be willing to change her course schedule and accept work or quit courses if necessary. Before board respondent provided list of em- ployers she had contacted and indicated that she would accept either part-time or full-time work and would quit school if work of- fer were provided. Board accepted respondent's evidence. Umpire dismissed commission's appeal from decision. Application for ju- dicial review dismissed. Evidence was that respondent had repeat- edly stated that her first intention was to find and accept full-time employment and presented evi- dence of numerous efforts to find employment. Presumption of non-availability for work was suc- cessfully rebutted by respondent. No error by Umpire on evidence or in his interpretation of appli- cable jurisprudence. Canada (Attorney General) v. Wang (Mar. 31, 2008, F.C., Sex- ton, Sharlow and Pelletier JJ.A., File No. A-356-07) Order No. 008/112/061 (5 pp.). GENERAL Presumption of non-availability for work was successfully rebutted Evidence Application by the applicant for the disclosure of information. United States of America request- ed the applicant's extradition to face criminal charges in relation to acts he was alleged to have com- mitted in Pakistan in support of attacks against coalition forces in Afghanistan. Applicant sought disclosure of certain information in possession of the Canadian gov- ernment that would assist him in his defence against the extradition request. Respondent opposed the request on the ground that disclo- sure would cause injury to Canada's national security and international relations. Application was brought pursuant to s. 38.04(2)(c) of the Canada Evidence Act. Applicant sought disclosure order pursuant to s. 38.06(1) of the Act. Applica- tion allowed in part. With regard to most of the information at issue the respondent established the risk of injury. In balancing the public interests the interest in disclosure outweighed that of non-disclo- sure. Court exercised its discretion pursuant to s. 38.06(2) of the Act to authorize disclosure of the rel- evant information in the form of a summary to be used solely for the purposes of the extradition hearings. October 2004 briefing note to the Commissioner of the R.C.M.P. was relevant to the ex- tradition proceedings. Respondent did not establish that disclosure of this information would injure national security or international relations. Note was therefore to be disclosed. Khadr v. Canada (Attorney Gen- eral) (Apr. 29, 2008, F.C., Mosley J., File No. DES-3-07) Order No. 008/156/087 (49 pp.). PRODUCTION Disclosure would not injure national security or international relations Intellectual Property Industrial And PATENTS Minister was correct in construction of claims Applicant was issued NOC. Ap- plicant filed and received approval for several SNDs. Minister re-au- dited patents filed after specified date. Minister concluded patent did not meet requirements. Min- ister delisted patent. Application for judicial review was dismissed. Minister was correct in construc- tion of claims. Claims were not for use of drug or for use of medicinal ingredient. Patent could not be eli- gible for listing. GD Searle & Co. v. Canada (Min- ister of Health) (Apr. 4, 2008, F.C., Gauthier J., File No. T-884- 07) Order No. 008/105/109 (36 pp.).

• Cover