Law Times

Sept 2, 2013

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Page 16 September 2, 2013 Law Times • caselaw R. v. King (Jun. 20, 2013, Ont. C.A., M. Rosenberg J.A., Gloria Epstein J.A., and P. Lauwers J.A., File No. CA C54081, C55948) 107 W.C.B. (2d) 225. Assault AGGRAVATED ASSAULT Scientific proof of causation not required Accused appealed her conviction of aggravated assault and assault with weapon for which she received global sentence of two years less one day. Accused had assaulted her spouse which caused damage to his spleen and medical expert testified that damage would have normally been done by single crushing blow. Complainant testified that accused had repeatedly punched him and accused argued causation was not proven. Appeal dismissed. Scientific proof of causation was not required and common sense inferences from facts could suffice to establish causal link between assault and injury. Court noted that sentence would have been consistent with sentence for assault causing bodily harm in any event. R. v. Ashkani (May. 29, 2013, Ont. C.A., David Watt J.A., M. Tulloch J.A., and P. Lauwers J.A., File No. CA C56567) 107 W.C.B. (2d) 231. Charter of Rights RIGHT TO COUNSEL No suggestion that statement was in any way elicited by officer Crown appealed decision which excluded from evidence statement that accused made to another prisoner in jail cells on basis that it was taken in contravention of his s. 10(b) Charter rights. Following accused's arrest he was placed in cells, was advised of his right to counsel, and indicated that he wished to speak to his lawyer. Within seconds of accused asserting his right to counsel, and as officer was leaving cellblock to make necessary arrangements, accused began conversation with person in next cell. Officer stopped, listened, and made notes of very brief conversation, which included potentially inculpatory statement. After listening to and recording accused's statement, officer interviewed another person involved in same investigation. Officer began his efforts to locate accused's lawyer about 20 to 25 minutes after accused asserted his s. 10(b) right, but his efforts were unsuccessful. Eventually, accused waived his right to counsel and provided videotaped statement to police. Trial judge held that opportunity to allow accused to exercise his right to counsel was delayed for no valid reason. Appeal allowed, acquittal quashed, new trial ordered. Accused's statement was made to other prisoner before officer had any possible opportunity to comply with request for counsel. Even if brief 20-25 minute delay after officer left cell area could engage s. 10(b) concerns, that time period was irrelevant to whether there was breach at time officer listened to and made notes of statement, and there was no breach of s. 10(b) at that point in time. There was no suggestion that statement was in any way elicited by officer, and it came as surprise to him. It could not be said that when statement was overheard by officer there had been any failure to provide reasonable opportunity to consult with counsel. Accused's belief that his statement to other prisoner was not being overheard by police had no relevance to whether police had complied with their obligation under s. 10(b). Had statement been admitted, result of trial may have been different. R. v. Abdullah (May. 22, 2013, Ont. C.A., Doherty J.A., Janet Simmons J.A., and Paul Rouleau J.A., File No. CA C55511) 107 W.C.B. (2d) 243. discharged. Applicant had reasonably arguable treaty and aboriginal rights in project area. Seriousness of potential adverse impact of Type A Water License on applicant's asserted treaty and Aboriginal rights was moderate. There would be future opportunities for applicant to address effects of project during term of Type A Water License. Duty to consult was mid-range of spectrum not requiring deep consultations and serious accommodation. Applicant was provided with all necessary information in timely manner. Applicant had ample opportunity to express interests and impact prior to approval. Applicant's concerns were reasonably considered and reasonably accommodated by Crown. Katlodeeche First Nation v. Canada (Attorney General) (May. 2, 2013, F.C., James Russell J., File No. T-434-11) 228 A.C.W.S. (3d) 1. FEDERAL COURT Immigration Aboriginal Peoples CROWN RELATIONSHIP Duty to consult mid-range not requiring deep consultations and serious accommodation Applicant did not submit comments on Paramount's application for Type A Water License allowing Paramount to use water for oil and gas exploration and development as part of project or on draft work plan. Applicant did not attend technical sessions or participate in prehearing conference. Dates for public hearing were advertised in newspaper indicating change in venue of hearing that was eight-hour drive away. Applicant registered as intervener. Applicant requested reasonable notice to allow applicant to prepare for hearing; that hearing be held in original location; and funding to assist applicant to participate in hearing. Board decided hearing would proceed in new location and refused to provide funding. Board advised applicant that applicant missed deadline to provide written submissions and presentation. Board was willing to hear argument from applicant but reserved right to rule inadmissible any new evidence applicant submitted. Applicant advised board applicant would not be participating in hearing. Applicant sent letter to Minister requesting parties enter into consultation and accommodation protocol for project. Minister relied on board's process to discharge duty to consult. Applicant filed motion for ruling with board and submitted comments of draft Type A Water License. Board concluded process was fair and board had no authority to conduct consultation. Board recommended for minister to approve Type A Water licence. Minister approved Type A Water license. Application for judicial review was dismissed. Duty to consult was reasonably EXCLUSION AND EXPULSION Failure to disclose extrinsic evidence was breach of procedural fairness Applicant sought judicial review of officer's decision. Applicant came to Canada in 1967 as permanent resident, along with family. He was ten years old and had resided in Canada since then. Applicant had serious mental health issues. Applicant was convicted of assault with weapon. Applicant was found inadmissible. Two-year conditional stay of deportation order was issued. Stay of removal order was cancelled. Applicant was arrested and detained. Applicant requested deferral of removal, which officer refused. Application granted. Officer relied on extrinsic evidence without giving applicant opportunity to respond. Extrinsic evidence was not generally available to public. Failure to disclose extrinsic evidence was breach of procedural fairness. There was omission of material from certified tribunal record. Missing information was highly relevant and material. Officer failed to appreciate personal circumstances of applicant, critical factor of his mental illness that led to criminal charge and loss of stay of deportation. Officer failed to appreciate evidence before him. Officer's conclusions respecting humanitarian and compassionate considerations relevant to applicant were not reasonable. Officer's decision was not reasonable. Russo v. Canada (Minister of Public Safety and Emergency Preparedness) (Apr. 22, 2013, F.C., E. Heneghan J., File No. IMM2983-12) 228 A.C.W.S. (3d) 206. IMMIGRATION APPEAL BOARD No requirement to consider granting stay in absence of specific request Native of Jamaica had been permanent resident of Canada since 1998. Applicant was convicted of possession of restricted arm, carrying concealed weapon and drug possession in 2009. Immigration Division found applicant inadmissible. Applicant appealed to Appeal Division. Applicant's counsel removed self from record. Appeal Division adjourned hearing on peremptory basis. Applicant restored counsel's retainer. Three days before hearing, counsel advised he would not appear. Applicant conducted appeal himself. Appeal Division denied appeal. Applicant requested judicial review on basis Appeal Division treated him unfairly by not adjourning hearing. Application dismissed. No evidence applicant asked Appeal Division for further adjournment. Applicant did not ask Appeal Division for more time to review materials. Appeal Division not required to consider granting stay in absence of specific request. Applicant had ample time to secure counsel. Ricketts v. Canada (Minister of Citizenship and Immigration) (Mar. 26, 2013, F.C., James W. O'Reilly J., File No. IMM-218212) 228 A.C.W.S. (3d) 208. PERSON IN NEED OF PROTECTION Board did not address cumulative impact of evidence Applicants applied for judicial review of board's decision that they were not Convention Refugees or persons in need of protection. Applicants were citizens of Hungary who claimed persecution in that country because of principal applicant's Roma ethnicity. Applicants claimed that lives were threatened by member of Hungarian Guard. Main applicant and oldest son were physically assaulted. They did not report incident to police because they believed that police would not protect them and they were warned by assailants not to contact policy. Main applicant also suffered discrimination and claimed children suffered segregation and abuse at school and in community. Board dismissed application on basis of availability of state protection. Application granted. Board accepted evidence of discrimination that applicants faced as credible but did not address its cumulative impact. Board made fundamental error on issue of state protection. Board had no regard to fact that applicants lived in small village that was home to uniformed group of Hungarian Guard whose members acted with impunity. Documentary evidence suggested it might be possible to identify systemic failure to provide adequate state protection for Roma people in village or small community level in Hungary. It was unreasonable for board to fail to see relevance of documentation because it did not focus on applicants' circumstances. Bali v. Canada (Minister of Citizenship and Immigration) (Apr. 23, 2013, F.C., Sandra J. Simpson J., File No. IMM-5087-12) 228 A.C.W.S. (3d) 215. Board did not address whether forced marriage amounted to persecution This was application for judicial review of board's decision determining applicant was not Convention Refugee or person in need of protection. Applicant, aged 23, was citizen of Namibia. She alleged that after grandfather passed away eldest uncle became new head of family and he pressured her to marry cousin. Applicant refused. Cousin visited applicant constantly and touched her inappropriately. Applicant went to police but they would not interfere. Applicant decided to come to Canada. Board found that applicant was not credible. Board found that fear of being ostracized by family and not being financially supported was not sufficiently serious to amount to persecution. Board found that there was internal flight alternative. Board found that adequate state protection would be available to applicant if she returned to Namibia. Application granted. In deciding whether applicant's fear could amount to persecution, board failed to assess or acknowledge that applicant's primary fear was that she would be forced to marry cousin. Alleged ostracism was side issue. Board's analysis was unreasonable, as it did not address whether direct harm of forced marriage amounted to persecution. Board misconstrued test for internal flight alternative. Issue of internal flight alternative was distinct from issue of state protection and board intermingled issues, which was incorrect. Board erred in state protection analysis. Analysis failed to take into account adequacy of state protection available to applicant to protect her from forced marriage. Henguva v. Canada (Minister of Citizenship and Immigration) (May. 8, 2013, F.C., Danièle Tremblay-Lamer J., File No. IMM-7403-12) 228 A.C.W.S. (3d) 216. REFUGEE STATUS Treatment of evidence inappropriate Applicant was citizen of China converted to Christianity in 2009. Applicant attended underground Catholic Church weekly until raided by Public Security Bureau ("PSB") in January 2010. Applicant fled to Canada in February 2010. Applicant filed refugee claim. Since departure from China, applicant's family interrogated by PSB and three members of church imprisoned. PSB continued to search for applicant. Refugee Protection Division ("RPD") denied refugee claim on basis applicant not credible. Judicial review allowed. Five substantive flaws in decision. Country condition evidence did not dictate conclusion applicant's story was implausible. RPD unreasonably dismissed summons applicant received in China. RPD erred in determining raid on church had not occurred, without determin-

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