province. In these circumstances, it could
not be said that the alleged tort was committed in Newfoundland. The only factors connecting the action with that
jurisdiction were House’s current residence and the consequential incurring of
economic losses in Newfoundland. Considering the factual context of the primary elements of the alleged tort, the
strength, relevance and quality of the
connection to Newfoundland did not
warrant the conclusion that a real and
substantial connection existed between
Newfoundland and the subject matter of
House’s action. The courts of Newfoundland accordingly did not have territorial
jurisdiction to try his claim.
House v. Alberta (Workers’ Compensation Board), [2012] N.J. No. 60,
Newfoundland and Labrador Supreme
Court - Court of Appeal, K.J. Mercer,
C.W. White and M.F. Harrington
JJ.A., February 28, 2012. Digest No.
3144-003
CRIMINAL LAW
CRIMINAL CODE OFFENCES –
Offences against person and reputation – Motor vehicles – Impaired driving or driving over legal limit – Evidence
to contrary.
Appeal by the accused from a conviction of driving with an illegal blood alcohol level. The accused was charged prior
to the amendment to the evidence to the
contrary defence based on R. v. Carter.
The amendments were enacted prior to
commencement of trial. At the commencement of trial, there was conflicting
jurisprudence as to whether the amendments applied retrospectively or prospectively. Counsel agreed to postpone
the issue. By the second and third trial
dates, the Superior Court ruled that the
amendments applied prospectively. The
Court of Appeal had reserved judgment
on the Crown appeal from that ruling.
The accused’s trial, including pre-amendment Carter defence evidence, completed
and the Court adjourned to await the
Court of Appeal judgment regarding the
effect of the amendments. The Court of
Appeal subsequently held that the defence
applied retrospectively. Accordingly, the
pre-amendment Carter defence was not
available to the accused. On the next date,
the accused submitted that his ss. 7 and
15 Charter rights were breached. He submitted that it was unfair to have the law
change day to day during his trial and for
him to call expert evidence that was irrelevant by the end of trial. The accused was
convicted. The accused appealed and
again argued infringement of his ss. 7 and
15 Charter rights. He sought a new trial at
which the pre-amendment Carter defence
could be raised.
HELD: Appeal dismissed. It was not
established that the trial judge misappre-
hended the submissions regarding the
distinction between retrospectivity and
unfairness in respect of ss. 7 and 15 Char-
ter breaches. The trial judge appreciated
the issues raised by the accused. The trial
judge erred in her reasons for judgment
in concluding that the new Court of
Appeal decision had addressed the Char-
ter arguments raised by the accused.
Nonetheless, adopting a fact-specific
determination, it was not established that
the accused’s Charter rights were
breached. The jurisprudence established
that the Carter defence was not virtually
eliminated or abolished, but had survived
in a different form. A Charter breach did
not arise solely by virtue of the chronol-
ogy of the charge, enactment and trial.
Retrospectivity was a live issue from the
outset of trial. No evidence was unavail-
able that might have assisted in a post-
amendment Carter defence. The accused
was not precluded from making full
answer and defence. While the accused
called evidence that proved to be irrel-
evant, no unfairness was established. No
ss. 7 or 15 Charter breach was established.
DAMAGES
FOR TORTS – Affecting property –
Personal property – Trespass or con-
version – Value of chattel.
Action by the plaintiff for damages for
trespass and breach of privacy, payment
for chattels located on a property purchased from him by the defendant
Lafreniere and payment for services rendered to the defendant Blackhawk Diamond Drilling Limited. Counterclaim by
the defendants for overpayment of wages
and other charges, and damages for damage to property and failure to return
property. The parties were friends and
business associates. In 2007, Bangle
began working for Blackhawk on a contract basis. In May 2007, Bangle and his
wife separated. Bangle allowed Lafreniere
to move into his house, which Lafreniere
later purchased, after Bangle had been
involved in a serious car accident and
was unable to return to the property.
However, Bangle had no recollection of
any such agreement. When Lafreniere
moved into the house, he moved Bangle’s
personal effects and papers into one
room, but denied reading them. The parties later reached an agreement whereby
Lafreniere agreed to purchase the property for $390,000. In addition, they had
negotiations with respect to the sale of
the chattels. Lafreniere had purchased a
camp from Bangle for $10,000. Due to
deficiencies in the camp, Bangle agreed
to a $5,000 refund, which was never
made. Bangle also claimed that Blackhawk owed him $13,469 for failure to
pay for services rendered and reimburse
expenses. Blackhawk claimed that due
to mathematical errors and payments
made but not recorded, Blackhawk had
overpaid Bangle.
HELD: Action and counterclaim
allowed in part. The evidence supported
the conclusion that Bangle allowed
Lafreniere to move into the house. There
was no evidence that any actions of
Lafreniere violated Bangle’s privacy
rights. No binding agreement was reached
by the parties with respect to the sale of
the chattels. As Lafreniere refused to
allow Bangle to remove any of the chattels
from the property, he committed the tort
of conversion with respect to the property
that Bangle had not abandoned. As a
result, the plaintiff was entitled to dam-
ages of $19,750, being the value of the
property converted. The defendant was
overpaid $822 for services rendered and
reimbursement of expenses. In addition,
he was entitled to $5,000 as an unpaid
refund for the camp purchase price. As a
result, the plaintiff was entitled to judg-
ment of $13,927, being damages for con-
version less the overpayment for contract
services and the unpaid refund of the
camp purchase price of $5,000.
IMMIGRATION LAW
EXCLUSION (INADMISSIBLE
PERSONS) – Inadmissibility finding –
Judicial review.
Application by Nagalingam for judicial
review of the decision finding that he had
committed acts of substantial gravity,
thereby permitting his refoulement to Sri
Lanka, notwithstanding his status in
Canada as a Convention refugee. The
applicant was a Tamil citizen of Sri Lanka.
He was granted refugee status and
became a permanent resident in 1997. He
was convicted of assault, failure to comply with a recognizance, and two counts
of mischief under $5,000 between 1999
and 2001. At the time of these incidents,
the applicant was a member of a gang. In
2003, the Refugee Board found the applicant inadmissible to Canada because he
was involved in organized criminal activity. In 2005, the Minister had issued a
first danger opinion. The applicant was
removed to Sri Lanka in 2005. In 2008,
while the applicant was still in Sri Lanka,
he was served him with notice that the
Minister intended to seek a new danger
opinion. The applicant claimed he was
arrested and tortured while in Sri Lanka.
He was permitted to return to Canada in
2009 pursuant to a temporary visa. The
applicant made numerous requests to
cross-examine the detective who had provided a statutory declaration regarding
the applicant’s suspected gang involvement. The Minister’s delegate denied the
applicant the opportunity to cross-examine the detective without reasons. The
evidence in the detective’s sworn declaration was key to the Minister’s case against
the applicant. The delegate concluded
that there were reasonable grounds to
believe that the applicant committed violent acts against rival gang members. She
found that there was evidence that he had
personally committed violent acts, including participating in a shooting that
resulted in two deaths. The delegate
found that the applicant was not credible
and had lied about being tortured on two
previous occasions. She concluded that
there was no more than a mere possibility
that the applicant would face persecution
if refouled. She was not satisfied that the
hardship the applicant and his family
would face sufficiently counter-balanced
the nature and severity of his past acts.
HELD: Application allowed. There
was sufficient evidence to support reason-
able grounds to believe that the applicant
had committed violent acts, including
homicide, on behalf of the gang. The dele-
gate did not err by finding the applicant
responsible for acts for which he had not
been convicted. The failure to allow the
applicant to cross-examine the detective
in a situation where the consequences of
the decision were extremely serious for
the applicant and the failure to provide
reasons for refusing the request to cross-
examine breached the applicant’s right to
procedural fairness. Given the important
interests at stake, both s. 7 of the Charter
and the common law principles of natural
justice required that the applicant be
given an opportunity to test the evidence
given by the detective. The delegate
placed a very strong reliance on the detec-
tive’s evidence for her finding that the
applicant was involved in violent crime,
including acts of homicide. At the very
least, the delegate was required to pro-
vide the applicant with clear reasons why
procedural fairness in this case did not
permit him to cross-examine the detec-
tive. The delegate’s refusal to allow the
applicant to cross-examine the detective
was tantamount to denying the applicant
a right to test the evidence against him
because the delegate had decided it was
credible and acceptable without the bene-
fit of cross-examination.
INFORMATION
TECHNOLOGY
COMPUTER CRIMES – Offences –
Child pornography – Procedure – Appeals.
Appeal by the accused from his conviction of possession of child pornography. The hard drive of a computer was
seized pursuant to a pre-authorized
search. Forensic examination of the hard
drive disclosed overwhelming evidence
that the computer had been used to
access child pornography. Fragments of
14 videos files were identified as written
to the hard drive between July 2003 and
November 2005. The trial judge concluded that some of the videos met the
definition of child pornography. The forensic evidence also disclosed that a large
number of files had been stored and
accessed with names suggestive of child
pornography. The internet browsing and
search history showed that the computer
accessed several websites and files indicative of child pornography and accessed
file sharing software. Video and other
files were intentionally downloaded into
folders with names indicative of child
pornography and were accessed thereafter. An expert opined that the material
was downloaded over a number of years
and was not transferred from another
machine or through remote operation.
The computer belonged to the accused
and he was its primary user. There was
evidence that the computer was also
used by the accused’s common-law partner, and by her nine-year-old daughter.
The defence contended that the material
could have been obtained, stored and
accessed by anyone who had access to
the computer. The accused suggested
that the breakdown of the relationship
with his partner and his threat to report
her to Child Services provided a motive
for her to falsely implicate him. The trial
judge found that the totality of the evidence supported a conviction. The
accused was self-represented on appeal.
He challenged the validity of the search
warrant and submitted that the verdict
was unreasonable.
HELD: Appeal dismissed. Having
failed to challenge the validity of the warrant at trial, the accused was precluded
from doing so on appeal due to a lack of
an evidentiary record. The accused’s
explanation for the material was inconsistent with the forensic evidence. The
