Law Times

Law Times • December 8, 2014 Page 15 www.lawtimesnews.com order directing that money collected pursuant to jeopardy order be first applied to fines arising from criminal convic- tions. Court considered that, when jeopardy order was is- sued and money was collected pursuant to order, only debt owing was tax debt, not crimi- nal fine and that taxpayer was not permitted to choose how to allocate involuntary payment. Taxpayer appealed. Appeal dismissed. Judge did not err in dismissing taxpayer's motion. Taxpayer was not challenging validity of search warrant so there was no basis to conclude taxpayer's Charter rights were violated. Taxpayer failed to show that judge's factual find- ing that CRA had every reason to believe taxpayer would not voluntarily pay his taxes was wrong or that jeopardy order would not have issued but for evidence obtained by way of search warrant. There was no impropriety in fact that some evidence obtained through search warrant was put before court in motion to obtain jeop- ardy order. Nor was CRA's use of jeopardy order to enforce payment of tax debt analogous to use of criminal powers to enforce civil debt. Only way to vary or vacate jeopardy order was by application for review by judge of court which issued order and no appeal lies from such review. Jeopardy order was already reviewed and upheld so motion was collateral attack on jeopardy order proceedings. Fi- nally, taxpayer failed to demon- strate that process followed to date, or to be followed, was not in accordance with principles of fundamental justice. R. v. Klundert (Jun. 16, 2014, F.C.A., Eleanor R. Dawson J.A., Johanne Trudel J.A., and D.G. Near J.A., File No. A-83- 13) Decision at 107 W.C.B. (2d) 155 was affirmed. 116 W.C.B. (2d) 179. ONTARIO CRIMINAL DECISIONS Arson PROOF OF OFFENCE Occurrence of two fires in house at same time could not be explained by accident Accused appealed conviction for arson. Accused's neighbour saw her leaving her home short- ly before he observed smoke coming from house, and on entering house, neighbour dis- covered contents of pot burn- ing on stove. Fire investiga- tors discovered iron in second f loor closet, sitting in middle of pile of burned clothing. Seri- ous quantity of paint had been sprayed throughout main f loor of house, on walls, f looring, furniture, and other objects. Accused had financial motive for fire. After her release from custody, accused went to see her landlord and admitted to hav- ing started fire. Upon her arrest, accused was advised of her right to counsel, was cautioned, and consulted with counsel. Officer repeatedly told accused that she would be released from custody whether she gave statement or not. After lengthy, videotaped interview, accused admitted that she had started fire, stat- ing that she was depressed and suicidal as result of her family's financial situation. Accused ar- gued that trial judge misappre- hended evidence by reasoning that her statement was likely to be true because she provided accurate details, by finding that landlord's evidence about her apology was reliable, as land- lord had suffered other losses not compensated by insurance, and by finding that fires were started in two locations in the second f loor bedroom, and reasoning that therefore fires were intentionally set. Appeal dismissed. Having found that accused's confession was volun- tary, trial judge was entitled to consider whether it was reliable and consistent with objective evidence and opinion of fire in- vestigator. It was never suggest- ed to landlord in cross-exami- nation that she had motive to lie because she had not been paid by insurance company or fully compensated for damage. Trial judge referred to fact that two separate fires were started in house, one upstairs in bedroom closet and other downstairs in kitchen, which was alone suffi- cient to support conclusion that occurrence of two fires in house at same time could not have been explained by accident. If there was misapprehension of evidence, alleged error did not play essential part in reasoning process. Fact of two fires on two separate f loors was sufficient to rule out accident. R. v. Sousa (Jul. 21, 2014, Ont. C.A., G.R. Strathy C.J.O., K. Feldman J.A., and David Watt J.A., File No. CA C56227) 116 W.C.B. (2d) 162. Evidence HEARSAY Prejudice from inability to cross-examine could be reduced through specific jury instruction Accused charged with assault causing bodily harm. Crown applied to admit portion of statement prepared by witness within days of incident in ques- tion under past recollection recorded exception to hearsay rule. Witness was in charge of security at bar and observed some interactions that oc- curred between accused and complainants. Witness testified that accused was punching or stomping one or both individu- als, but that he could not re- member angles or exactly who was doing what. Witness testi- fied that he did not have current memory of details of accused's participation in actual beating and, in this regard, had been relying on what he had stated in statement he provided to his employers and to police shortly after assault occurred. Witness testified that when he typed statement, he was not under in- f luence of alcohol and he wrote statement to best of his knowl- edge and tried to be honest at time. Witness testified that he wrote statement when events of evening were freshest in his memory and that, at time he wrote statement, he was certain about what he wrote. Applica- tion allowed. Witness's mem- ory loss was genuine, as it had been three years since assault occurred. Witness had contin- ued to work as head of security at bar since incident and had witnessed many confrontations and fights. Witness vouched for reliability of his written state- ment. Witness's evidence was highly probative, as it was evi- dence from independent and uninvolved observer as to what happened during attack in al- ley. Prejudice that arose from inability of defence counsel to fully cross-examine witness on his observations at time of attack, due to absence of cur- rent memory, could be reduced through specific jury instruc- tion to effect that past recollec- tion recorded was lower form of evidence to which jury should give extra cautious scrutiny. Defence counsel had ability to cross-examine witness on his vantage point when observa- tions were made and extent to which his view was blocked due to presence of many men in small space. R. v. Louangrath (Mar. 5, 2014, Ont. S.C.J., Aitken J., File No. 11-10657) 116 W.C.B. (2d) 164. Motor Vehicles DANGEROUS DRIVING Trial judge misapprehended evidence related to post-acci- dent alcohol consumption Accused appealed conviction for dangerous driving. Accused drove at high speed, switched into slow lane without reduc- ing speed, lost control of his vehicle, and knocked exit sign down at off-ramp. Air bags in accused's vehicle were deployed and vehicle was damaged be- yond repair. Short time after accident, once accused had re- turned home, he was seen by his mother-in-law to be con- suming alcohol. Neighbour spoke with accused after ac- cident and noted no odour of alcoholic beverage, and officer who spoke with him initially smelled no alcoholic bever- age on accused. Officer later noted slight odour of alcohol on accused's breath and other indicia of impairment, and de- manded breath sample which resulted in readings of .084 and .077. Trial judge found that al- though accused was not guilty of impaired driving, he had consumed alcohol prior to ac- cident, factor that considered in decision. Trial judge found that accused had consumed limited amount of alcohol following accident. Accused argued that trial judge misapprehended evidence relating to quantity of alcohol consumed by accused following accident. Accused argued that trial judge erred in using results of intoxilyzer to draw inference that he had alcohol in his system at time of accident. Accused argued that trial judge misapprehended evidence in not taking into ac- count faulty curb as cause of accident. Appeal allowed, new trial ordered. Where there was intervening or "bolus" con- sumption of alcohol, it would have been dangerous to con- clude that accused consumed alcohol prior to event except in rare situations where other strong evidence was present or where amount of intervening alcohol could have been objec- tively determined through as- sistance of expert. Trial judge misapprehended evidence relating to post-accident con- sumption of alcohol. Test on whether or not to order new trial was whether there was any evidence before trier of fact that could have resulted in convic- tion for dangerous driving de- spite removal of previous con- sumption of alcohol as factor to be considered. While accused's speed was not by itself factor, there was more than enough evidence that accused's driving was marked departure from norm, even without consump- tion of alcohol prior to accident being consideration. Evidence concerning reconstructed curb at exit causing four other ac- cidents was of little assistance and was "red herring" at best. R. v. Lee (Sep. 18, 2014, Ont. S.C.J., Robert F. Scott J., File No. Napanee CR-14-082- 00AP) 116 W.C.B. (2d) 180. FEDERAL COURT Administrative Law JUDICIAL REVIEW Evidence not properly considered in its totality and decision unreasonable Sponsor was Canadian citizen. Sponsor's spouse was citizen of India. Marriage was arranged by families and took place in December 2009, two days after parties met. Spouse applied for permanent residence however application was rejected by of- ficer on basis that marriage was not genuine and was entered into primarily for purpose of acquiring permanent residence in Canada contrary to s. 4(1) of Immigration and Refugee Pro- tection Regulations (Can.). Ap- peal was rejected by Immigra- tion Appeal Division (IAD) in June 2011. Sponsor gave birth to child in June 2012, which was confirmed by genetic test- ing to be that of spouse, spon- sor and spouse were in daily contact by Skype, sponsor had travelled to India for two trips of several months duration and was planning to travel for five month trip to India. Spouse ap- plied for permanent residence again in November 2011, and application was again refused on ground first decision was final and conclusive and appli- cation was res judicata. Despite via voce evidence of spouses on second appeal. IAD dismissed second appeal on basis that matter was res judicata or, in alternative, that marriage was entered into for primary pur- pose of acquiring status under Immigration and Refugee Pro- tection Act. Sponsor applied for judicial review. Application granted. In adopting reasoning of previous decision, IAD did not address viva voce evidence of parties at second appeal. Nor did IAD address new, fresh evidence adduced by sponsor beyond stating it had consid- ered all evidence before it. No analysis was provided although there was clear evidence that might alter outcome if properly considered in its totality i.e. evi- dence of continuing relation- ship, two to three trips to India of several months in dura- tion, and birth of child. While IAD had discretion to decide evidence put forward did not amount to decisive evidence, type of evidence adduced in this matter has been held to be fresh, decisive evidence in previous judicial reviews of spousal-sponsorship applica- tions. IAD was obliged to ad- dress why it did not constitute such evidence in present case beyond simply adopting rea- sons of previous panel. Failure to do so indicated that evidence was not properly considered in its totality and decision of IAD was unreasonable. Sandhu v. Canada (Minister of Citizenship and Immigration) (Sep. 2, 2014, F.C., Luc Martin- eau J., File No. IMM-1309-14) 245 A.C.W.S. (3d) 188. Immigration JUDICIAL REVIEW Board failed to consider applicant's evidence independently from that of mother Applicant was eight years old when he made claim for refugee protection. Applicant claimed he was verbally and physically as- saulted in St. Lucia because his mother was lesbian. Board did not believe mother's evidence about her sexual orientation and dismissed claim. Applicant ap- plied for judicial review. Appli- cation granted. Board erred in its treatment of applicant's testi- mony. Board discounted appli- cant's testimony mainly because it doubted mother's credibility, which was not appropriate cri- terion. Board failed to consider value of applicant's evidence in- dependently from that of mother. Board's approach did not involve consideration of applicant's tes- timony on its own terms. Board failed to address possibility that mother might be perceived to be lesbian and that applicant might suffer adverse consequences in overly homophobic country of St. Lucia. Board's decision was unreasonable. Corneille (Litigation guard- ian of ) v. Canada (Minister of Citizenship and Immigration) (Sep. 19, 2014, F.C., James W. O'Reilly J., File No. IMM-3510- 13) 245 A.C.W.S. (3d) 180. LT CASELAW

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