SUPREME COURT DENIES COUPLE'S APPLICATION FOR LEAVE TO APPEAL

A man and woman who fought for many years to recover from police
personal photographs, including some that purportedly displayed
marijuana plants in their Nassagaweya home, will now have to obey a
judge's order to produce those photos if they want to pursue a $1.4
million claim for damages against members of Halton and Peel's police
departments among others.

A three-judge panel of the Supreme Court of Canada recently denied the
couple's application for leave to appeal the earlier decision of an
Ontario court ordering them to produce the photos to the defendants in
their lawsuit.

On June 26, 2008, Ontario Superior Court Justice G. E. Taylor ordered
the couple to produce the photographs to the defendants as part of the
obligation of plaintiffs in civil actions in Ontario to produce
records that may be relevant to the lawsuit to the other side. The
couple had argued that since the photos had been excluded in earlier
criminal proceedings, they should be excluded from evidence in the
lawsuit.

The couple subsequently made a motion for leave to appeal Justice
Taylor's order, but that motion was dismissed by Ontario Superior
Court Justice P. B. Hambly on December 4 of last year.

In his written decision denying leave, Hambly stated: "The plaintiffs
will have to choose between production of the photographs or
abandoning the lawsuit."

Justice Hambly's decision also set out the history of events leading
up to the civil lawsuit. Back on June 1, 2001, Agnieska Wojtanowska
brought some photographs taken inside the residence she shared with
Douglas Weil to a Black's Photography at the Bramalea City Centre.

According to Justice Hambly's decision, the photographs showed
marijuana plants growing in their residence. They also included
personal photographs, which Wojtanowska stated during an examination
for discovery on March 27, 2006 included a photograph of herself naked.

Employees of Black's turned over copies of the developed photographs
to Peel Regional Police before giving the original photos to
Wojtanowska, wrote Hambly. On June 7, 2001 Peel police handed over the
photos to Halton Regional Police, which used the photos to obtain a
search warrant a week later.

On June 14, 2001, Halton police executed the search warrant on a
Fourth Line Nassagaweya home during which they allegedly seized
$250,000 worth of drugs, hydroponic growing equipment, and marijuana
plants, according to newspaper reports.

Wojtanowska was arrested at the house that day and Weil surrendered to
police the following day, wrote Hambly. Both were charged with
drug-related offences.

Hambly said the couple subsequently brought a motion to the Superior
Court in Milton to exclude the fruits of the search of their home from
their trial pursuant to section 24 (2) of the Canadian Charter of
Rights and Freedoms, which partially states: "where...a court
concludes that evidence was obtained in a manner that infringed or
denied any rights or freedoms guaranteed by this Charter, the evidence
shall be excluded..." In this case, the right the couple alleged was
infringed upon or denied was that contained in Section 8 of the
Charter, "Everyone has the right to be secure against unreasonable
search or seizure."

Justice Walters of the Ontario Superior Court heard the couple's
motion to exclude the evidence. On September 16, 2003, he granted
their motion to exclude the evidence obtained from the search. Six
days later Justice Walters dismissed the charges against the couple
after the Crown said it had no other evidence except that obtained
during the search of the home. Justice Walters subsequently made an
order that the evidence seized pursuant to the search warrant (which
Hambly found included the photographs) be returned to the couple.

However, more than four years later Justice Snowie of the Superior
Court in Milton determined that the police still retained photographs
that belonged to the couple, contrary to the previous order of Justice
Walters, and ordered them returned. In his decision, Justice Hambly
noted that in early March of 2008, Justice Quigley ordered the return
of another file containing the photographs that was found to still be
at the Ontario Court of Justice.

In the intervening years, the couple had retained a lawyer who issued
a statement of claim for a total of more than $1.4 million in various
damages plus GST and costs, naming as defendants Black's Photography,
the employees of Black's who dealt with their photos, the Halton and
Peel police services boards and the four Peel and Halton police
officers involved in the investigation of the couple.

"They alleged against the defendants the violation of their rights
guaranteed by s. 8 of the Charter and breach of their right to
copyright in the photographs," wrote Hambly.

It was during the March, 2006 examination for discovery for this
lawsuit that the couple refused to produce the photographs, according
to transcripts included in Hambly's written decision, citing privacy
concerns among other things.

In his decision, Justice Hambly said although the defendants couldn't
use the photographs for any purpose other than the lawsuit, he
understood the couple's desire to protect their privacy. However, he
said the couple couldn't sue the defendants for how they used the
photographs but now refuse to produce them.

The Supreme Court of Canada didn't provide a reason for its dismissal
of the couple's motion for leave to appeal Justice Hambly's decision,
as is common for the Supreme Court on leave applications.