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Opportunity to commit offence was given in context of reasonable suspicion

Accused was found guilty of internet luring. Accused applied for stay of proceedings on basis of entrapment by police. Male police officer pretending to be female communicated electronically over several months with accused in response to two advertisements which he had placed in “casual encounters” section of Craigslist. Accused had sought females over age of 18 with whom he proposed to smoke marijuana and have sex. “Female” stated very early on in electronic exchanges that “she” was 14 years old, but accused asserted that he believed she was 16 or older. Accused argued that what was communicated to him by officer in his guise as “female” amounted to providing of opportunity to commit offence in circumstances where there was neither reasonable suspicion that he was already engaged in criminal activity nor making of bona fide inquiry. Accused argued that there was inducement. Application dismissed. Court was not persuaded that “words” of “female” took what was communicated by officer over line from mere neutral investigation into territory of providing opportunity commit offence. After “female” indicated that she was 14, accused made explicit reference to oral sex and, at that point, reasonable suspicion that accused was already engaged in criminal activity had come into existence. Communications between accused and “female” went on for months. Providing of opportunity to commit offence took place in context of reasonable suspicion, and entrapment was not made out. Internet was considered to be universal and investigation was not done in anything other than bona fide context. Police did not induce crime, as average person would likely have ended communication moment that “female” stated her age to be 14.
R. v. Argent (Jul. 17, 2014, Ont. S.C.J., Parayeski J., File No. CR-4301) 115 W.C.B. (2d) 33.



12 months illegal sentence where Crown proceeded summarily but conviction upheld

Accused appealed his conviction and concurrent 12 month sentences for assault police officer and breach of probation. Police were called after accused was causing disturbance at hospital but let him go until they discovered that their computer showed he needed permission letter to be away from house arrest. Police sought out accused who was abusive and spat on police and he was initially arrested for breach of recognizance. It was subsequently discovered that police computer was not up to date as accused no longer needed letter and was just on probation. Appeal against sentence only allowed. Sentence was changed to six months as 12 months was illegal sentence where Crown proceeded summarily but conviction was upheld. Information relied on to make arrest may turn out to be inaccurate or unreliable, after further investigation. Where police rely on information that turned out to be false or unreliable, lawfulness of antecedent arrest depended on whether it was reasonable, in circumstances that existed at time. Police reasonably believed accused was in default of his recognizance which justified arrest and spitting on police was assault.
R. v. Boston (Jul. 28, 2014, Ont. S.C.J., M.A. Code J., File No. CR-13-30000-112AP) 115 W.C.B. (2d) 9.



Defendant lied to police to cover up his own negligence

Plaintiff drove to gas station to fill his tire and saw area marked off by cones for fuel truck. Plaintiff drove through what he saw was open lane and defendant fuel truck driver waved plaintiff to a stop, put his legs in contact with plaintiff’s bumper and then reported plaintiff to police for striking him. As a result, plaintiff was charged with mischief and dangerous driving and commenced action against defendant alleging malicious prosecution to which defendant did not respond. Motion by plaintiff for default judgment for legal fees and rent for accommodation for six months because charges prevented him from entering United States where he had bought home. Motion granted. Defendant initiated and was instrumental in criminal proceedings against plaintiff, and plaintiff was acquitted so proceedings were clearly terminated in his favour. Plaintiff established defendant lacked subjective basis for making complaint and evidence described man who was angry and vindictive at what he saw as plaintiff’s disregard for his cones. Defendant lied to police to cover up his own negligent cone placement and plaintiff did nothing more than drive through what he saw as open lane and stop to avoid defendant. Improper purpose and malice established. Plaintiff granted judgment for $23,866.37.
Drainville v. Vilchez (Jul. 4, 2014, Ont. S.C.J., P.H. Howden J., File No. Newmarket CV-12-110766-00) 242 A.C.W.S. (3d) 986.

Charter of Rights


Officer had no excuse for not advising accused passenger was deceased

Accused charged with impaired driving causing death, causing death while driving “over 80”, criminal negligence causing death, and dangerous driving causing death. Breath technician said she made “conscious decision” not to tell accused about death out of safety concerns, having been attacked by drunk person in past resulting in injuries requiring surgery. Breath technician acknowledged that, while in breath room, she was armed, as were two other officers. Officer asked others involved if accused had been advised that he was facing charge involving fatality. When officer heard accused had not been so advised, he went into interview room to speak to accused, and told him that his passenger had died and that he was facing much more serious charge of impaired driving causing death. Officer asked accused if he wished to speak to lawyer and accused declined but officer persisted and told him that charge was much more serious and that he would probably go to jail after which accused opted to speak with duty counsel. First breath sample excluded. Court agreed accused’s rights had been breached. It was completely unreasonable for police officer to think that person, who was completely covered by tarp, and unattended by any EMS personnel, might still be alive. If officer had any doubt, he could have asked one of paramedics. Officer had no excuse for not advising accused passenger was deceased. If police had wished to wait for official confirmation, they should have refrained from attempting to elicit evidence from accused in meantime. Accused’s conduct at scene and at police station belied actual awareness of passenger’s death. While court believed breath technician’s reasons she gave for not informing accused of fatality, it was not acceptable reason for failing to inform accused of true state of affairs. After accused was properly apprised of his jeopardy and persuaded of potential penal consequences of the situation, he did call lawyer. This turn of events spoke to obvious inadequacy of previous information provided to accused. Short of finding bad faith, conduct of four officers involved was wilful or seriously reckless. Actions of officer who informed accused of passenger’s death were Charter-compliant and severed link between earlier breach and collection of second sample.
R. v. Karafa (May. 21, 2014, Ont. S.C.J., Trotter J., File No. null) 114 W.C.B. (2d) 68.



Evidence of prior conduct in context of harassment charge presumptively admissible

Appeal by Crown from acquittal of accused on charge of criminal harassment. Complainant was former employee of accused. She left his employ on bad terms in 2010 because he provided poor reference for her when she applied for another job. After complainant left accused called her on numerous occasions and he left messages in which he said he missed her. Accused called in total of between 20 and 30 times and this forced her to change her phone number. He waited for her outside her home and he left gifts for her at home of her parents. Gifts continued even after she changed her phone number. Complainant went to police and they warned accused not to have any further contact with her. She was working at restaurant on March 27, 2013 and accused attended restaurant and he tried to get her attention and she ignored him. When complainant went to her car accused sped towards her in his vehicle. Accused followed her in his vehicle and complainant called her boyfriend on her cell phone. Trial judge found that there had been no overt threat and he described restaurant encounter as innocuous. Appeal allowed. Acquittal set aside. Judge erred in excluding content of telephone calls placed by accused to her prior to March 27 incident. Evidence of prior conduct in context of criminal harassment charge was presumptively admissible. Previous interactions between accused and complainant, that set backdrop for charge, had to be heard and evaluated to assess reasonableness of complainant’s fear. Judge also erred in his treatment of restaurant encounter, in which he excluded relevant evidence. His description of restaurant encounter, which he termed as being innocuous was illogical. Based on evidence that judge did accept, his acquittal was unreasonable. New trial was ordered to enable all of relevant evidence to be before court.
R. v. Deary (Jun. 18, 2014, Ont. S.C.J., Healey J., File No. CR-13-231-AP) 114 W.C.B. (2d) 5.

Contempt of Court


By unilaterally transferring schools without consent of father mother willfully breached order

Mother taught at elementary school in Brampton. Mother saw that daughter was having social problems at school in Mississauga, and younger son was having academic difficulties. Mother unilaterally transferred children from school in Mississauga to her school in Brampton. Mother claimed she tried to contact father week earlier by phone but he became angry and hung up. Father had recently re-located home to be closer to children’s home and Mississauga school in order to reduce travel time during access visits. Court order required parties to bring any dispute regarding custody or access, including children’s education, to court for resolution if it could not be resolved by mediation. Father brought motion to have mother found in contempt of court order. Motion granted. By unilaterally transferring children’s schools without consent of father who shared custody and without leave of court, mother wilfully breached court order. Limited evidence did not allow court to assess whether transfer of children to new school was necessary or appropriate. Transfer added to distance father and children were required to travel when he exercised access and it deprived father of opportunity to challenge mother’s decision that transfer of schools was in children’s best interests. Court was reluctant to order further change in schools until Office of Children’s Lawyer (OCL) provided assessment. Mother’s unilateral transfer of children to new school in violation of court order with negative impact to father’s access was material change of circumstances that required fresh consideration of what arrangements were in children’s best interests. Order was varied. Pending assessment by OCL, it was in children’s best interests that negative impact of transfer on father’s access be remedied by interim variation of older son’s residence to father and increase in father’s weekend access to two other children.
Skura v. Fibingr (Feb. 14, 2014, Ont. S.C.J., Price J., File No. Brampton FS-08-3792) 241 A.C.W.S. (3d) 326.



Not clear what acts trial judge found rose to level of insubordination, recklessness and/or gross negligence

Parties entered into contract where plaintiff was appointed property management company. Defendant condominium corporation terminated agreement for cause. In Small Claims action, plaintiff sought damages of $8,303.24 from defendant for breach of contract. Trial judge found that collectively grounds relied on by defendant were sufficient to constitute insubordination, recklessness and/or gross negligence that entitled defendant to terminate agreement without notice. Claim was dismissed. Plaintiff appealed. Appeal allowed. Trial judge’s reasons were not sufficient. What was decided was unclear. It was not clear what acts or omissions trial judge found collectively rose to level of insubordination, recklessness and/or gross negligence. Trial judge did not provide answers as to why he made finding. There was no window into decision to allow for meaningful appellate review.
Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231 (Jun. 16, 2014, Ont. S.C.J., David L. Edwards J., File No. CV-13-39-00) 241 A.C.W.S. (3d) 262.

Selection and Admission

No basis for amateur diagnosis as officer had no expertise in field of psychiatry

Foreign national, aged 26, was citizen of China who came to Canada on student visa in 2005 after her mother died. Foreign national suffered from mental illness, which according to psychiatrist could be controlled, but not cured. Between December 2008 and September 2010, foreign national was admitted to psychiatric wards on five occasions. Foreign national subsequently enrolled in college and was residing at home of senior official in psychiatric department of major Toronto hospital. In denying humanitarian and compassionate claim, officer found that foreign national’s psychotic depression/lapse was result of separation anxiety as consequence of travelling alone to new country and that it was reasonable that her psychosis would diminish when she was back in her native culture and language and among family and friends. Officer also found that China had sufficient medical resources reasonably available to foreign national to treat her mental illness. Foreign national applied for judicial review. Application granted. Immigration Officer made fatal error in coming to his own conclusions on source of foreign national’s psychiatric problems. It was determination made in absence of any evidence to support finding that source of psychiatric problems was culture shock of coming to Canada. There was no basis for amateur diagnosis as officer had no expertise in this field, and there was no medical evidence to support this diagnosis. Culture shock had exacerbated foreign national’s medical problems, but was not found to be root cause. Officer’s conclusion that return to China would be tantamount to cure was unsupported and bizarre. In considering evidence of mental health treatment in China, officer focused exclusively on services in Shanghai and Beijing and failed to link those few facilities identified with foreign national’s ability to access them from her home city.
Li v. Canada (Minister of Citizenship and Immigration) (Jun. 6, 2014, F.C., Michael L. Phelan J., File No. IMM-4109-13) 241 A.C.W.S. (3d) 430.



Panel did not consider operational reality of processes

Refugee claimant was citizen of Mongolia who claimed protection based on spousal abuse. Refugee Protection Division (RPD) found that claimant’s husband was convicted of criminal offence when in fact he had not been. While her husband had been taken away by police on three occasions, there was no evidence that he received criminal convictions as opposed to administrative detentions. Letter from police indicated that claimant’s husband was sentenced according to administrative law. Claimant’s testimony and documentary evidence indicated that recently enacted domestic violence law had been rarely if ever used. RPD referred to test for state protection as being whether Mongolian government was taking steps to address domestic violence. RPD denied claim. Claimant applied for judicial review. Application granted; decision quashed and matter remitted back for new determination by different panel. RPD referred to test for state protection as being whether Mongolian government was taking steps to address domestic violence. That articulation of legal test was error in law. RPD’s actual analysis of state protection focused on processes in place to deal with domestic violence. RPD did not consider efficacy or operational reality of those processes. RPD should have confronted fact that claimant had accessed all resources which RPD found were available to protect her and was still experiencing serious violence. Therefore, this decision could not be sustained.
Osor v. Canada (Minister of Citizenship and Immigration) (Jun. 4, 2014, F.C., Michael L. Phelan J., File No. IMM-2081-13) 241 A.C.W.S. (3d) 428.

Industrial and Intellectual Property


Incorporation of musical work into audiovisual work was reproduction that attracted royalties

Copyright board exercised its mandate under s. 70.2 of Copyright Act (Can.), to settle terms of licences granted to two broadcasters by collective society that administered reproduction rights. Terms of licence reflected board’s view that royalties were payable with respect to ephemeral copies of works made by broadcasters in normal course of their production or broadcasting activities. Ephemeral copies were copies or reproductions that existed only to facilitate technological operation by which audiovisual work was created or broadcast. Broadcasters applied for judicial review. Application granted in part. If technological advances required making of more copies of musical work in order to get audiovisual work that incorporated it to market, those additional copies added value to enterprise and attracted additional royalties. Broadcasters’ argument that copy-dependent technology did not add value to enterprise and as result, there was no additional value to share with artists, was essentially economic argument. Board heard extensive evidence on argument and its conclusion had evidentiary foundation. There was no basis to interfere with board’s conclusion on economic justification. Broadcasters conceded that incorporation of musical work into audiovisual work was reproduction that attracted royalties. Board’s reasoning was grounded in Bishop v. Stevens (1990), 72 D.L.R. (4th) 97, 22 A.C.W.S. (3d) 568 (S.C.C.), where Supreme Court of Canada held that ephemeral recordings of performance of work made solely for purpose of facilitating broadcasting of that performance were, if unauthorized, infringement of copyright holders rights. Bishop v. Stevens continued to remain good law. Entertainment Software Assn. v. Society of Composers, Authors and Music Publishers of Canada (2012), 347 D.L.R. (4th) 193, 216 A.C.W.S. (3d) 218 (S.C.C.) (ESA), restated principle of technological neutrality in copyright law, but provided no guidance as to how court should apply principle when faced with copyright problem in which technological change was material fact. Nothing in ESA authorized board to create category of reproductions or copies which, by their association with broadcasting, would cease to be protected by Act. ESA did not overrule Bishop v. Stevens. Comments in ESA about technological neutrality had not changed law to point where board erred in finding that incidental copies were protected by copyright. However, formula imposed by board was flawed and discounted formula was amended.
Canadian Broadcasting Corp. v. SODRAC 2003 Inc. (Mar. 31, 2014, F.C.A., Marc Noel J.A., J.D. Denis Pelletier J.A., and Johanne Trudel J.A., File No. A-516-12, A-527-12, A-63-13) 241 A.C.W.S. (3d) 434.
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