Law Times

Page 14 May 7, 2018 • Law TiMes www.lawtimesnews.com CASELAW Supreme Court of Canada Criminal Law APPEALS Appeal from conviction or acquittal Reasons failed to reveal basis on which trial judge concluded Crown proved mental element Accused travelled from Anti- gua to Toronto. Canada Border Services Officer retrieved un- claimed piece of luggage from accused's f light which con- tained 15 one-kilogram bricks of cocaine. Accused's name was on luggage tag and his DNA was on sock inside. Accused's denial at trial of any knowledge of drugs or of checking luggage onto f light was not believed. Ac- cused was convicted of import- ing cocaine. Accused appealed. Appeal was dismissed. Majority ruled that trial judge gave de- tailed reasons for rejecting ac- cused's evidence and properly applied third part of R. v. W.(D.) analysis. Trial judge appeared to reverse onus of proof in context but he did understand burden of proof and properly applied it. Crown adduced strong physi- cal evidence to prove accused's guilt, including fact that cocaine was in suitcase that he owned that contained item of clothing with his DNA on it. Crown's case in chief and facts accepted by trial judge established prima facie case that accused com- mitted actus reus of offence, with compelling resulting infer- ence that he did so knowingly. Read in context, trial judge's reasons sufficiently explained basis upon which he found that knowledge component had been proved beyond reasonable doubt. In dissenting opinion one justice ruled that combi- nation of trial judge's misstate- ment of onus of proof under third step of R. v. W.(D.) along with his failure to make finding of fact about only factual matter in issue, whether accused knew about cocaine in his suitcase, meant appeal should be allowed. Accused appealed. Appeal al- lowed. Court was in agreement with dissenting opinion. Trial judge's reasons, even when read as whole and in context of trial record, failed to reveal basis on which trial judge concluded that Crown had proven mental ele- ment of offence beyond reason- able doubt. Reasons did not per- mit effective appellate review. R. v. Black (2018), 2018 Car- swellOnt 3967, 2018 Carswel- lOnt 3968, 2018 SCC 10, 2018 CSC 10, Wagner C.J.C., Kara- katsanis J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellOnt 10794, 2017 ONCA 599, K.M. Weiler J.A., C.W. Hourigan J.A., and G. Pardu J.A. (Ont. C.A.). Federal Court of Appeal Constitutional Law CHARTER OF RIGHTS AND FREEDOMS Miscellaneous Report need be made only when no credible argument proposed legislation met standards Following examination of pro- posed legislation, report of in- consistency must be made to House of Commons or to reg- ulation-making authorities and issue arose as to what threshold must be for reporting. Plaintiff brought action for declarative relief on basis that defendant Minister of Justice and Clerk of Privy Council were not prop- erly performing examination and reporting duties in review- ing bills and draft regulations to ensure consistency with Ca- nadian Charter of Rights and Freedoms and Bill of Rights. Action dismissed. Plaintiff ap- pealed. Appeal dismissed. Given uncertain, difficult jurispruden- tial terrain of constitutional law and time when Minister was expected to assess proposed leg- islation, only responsible, reli- able report that could be given under examination provisions was when proposed legislation was so constitutionally deficient, it could not be credibly defend- ed. Federal judge did not err in agreeing that report need be made only when no credible ar- gument could be made that pro- posed legislation met standards. Credible argument examination standard used in review of legis- lation under s. 3 of Canadian Bill of Rights, s. 4.1 of Department of Justice Act and s. 3 of Statutory Instruments Act was reasonable reading of what that legislation required. Schmidt v. Canada (At- torney General) (2018), 2018 CarswellNat 1122, 2018 FCA 55, David Stratas J.A., D.G. Near J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 494, 2016 Carswell- Nat 495, 2016 FC 269, 2016 CF 269, Simon Noël J. (F.C.). Tax INCOME TAX Special rules Evidence to support chain of events leading to irreparable harm not meeting required standard Charity operated Islamic school that offered classes from junior kindergarten to grade eight. Registration of school as char- ity provided it with significant advantage of being able to offer tax incentive to donors. Chari- ties Directorate of Canada Rev- enue Agency conducted audit of charity's books and records for 2009 and 2010 and concluded that charity was in serious non- compliance with statutory re- quirements. Minister of Nation- al Revenue advised charity that she would revoke registration as charity under Income Tax Act after 30 days by publishing copy of notice of intention to re- voke in Canada Gazette. Charity commenced application seeking order prohibiting publication of copy of notice of intent to revoke until later of 30 days after Min- ister disposed of charity's objec- tion to notice or June 30, 2018. Application dismissed. Test to be applied in considering char- ity's application to extend period for publication of notice of inten- tion to revoke was test for grant- ing stay or injunction set out by Supreme Court of Canada in 1994 decision. First part of test was made out. Evidence fell well short of establishing irreparable harm and failed second part of test. Evidence charity put for- ward to support chain of events leading to irreparable harm did not meet required standard. There was no need to consider third part of test. Ahlul-Bayt Centre, Ottawa v. Canada (National Rev- enue) (2018), 2018 CarswellNat 1156, 2018 FCA 61, Rennie J.A., Woods J.A., and John B. Laskin J.A. (F.C.A.). Federal Court Intellectual Property TRADEMARKS Passing off and unfair competition Applicant must establish goodwill based on perceptions of marketplace Parties were competitors in Ed- monton marketplace. Respon- dent company used phone mark 1-877-WELDPRO in conjunc- tion with its business activities, and it applied to register trade mark "1-877-WELDPRO", and applicant then applied to reg- ister trade mark "Weldpro". Canadian Intellectual Prop- erty Office issued objection against applicant's application because it was confusing with company's previously-filed ap- plication, and applicant initi- ated opposition proceedings against company's registration. Applicant alleged company's use of, and attempt to register trade mark 1-877-WELDPRO directed public attention to company's goods in way that caused confusion contrary to s. 7(b) of Trade-Marks Act. Ap- plicant alleged that individual respondent's conduct had been so egregious that corporate veil should be pierced, and he should be held personally liable for causing damages. Applicant brought this application alleg- ing passing off. Application dis- missed. Elements of passing off test were goodwill, likelihood of deception, and damage. In- dividual respondent's evidence could not be relied on to estab- lish goodwill or reputation in mind of purchasing public. In- dividual respondent was presi- dent of applicant's competitor in Edmonton marketplace, and it was difficult to conclude that knowledge of direct competitor might normally be considered as representative of, or as establish- ing, knowledge of purchasing public. Individual respondent's knowledge was insufficient es- tablish that goodwill existed. Applicant could establish good- will in number of ways, but it must do so based on perceptions in marketplace. Applicant had not established goodwill prong of passing off test and it failed to demonstrate that respondents breached s. 7(b) of Act. 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 WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. 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