Law Times

Page 13 Law Times • February 4, 2013 caselaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. SUPREME COURT OF CANADA Charter of Rights FUNDAMENTAL JUSTICE Accused's silence not evidence of guilt Accused not testifying at joint trial with co-accused. Co-accused's counsel submitting to jurors accused's failure to testify evidence of his guilt. Trial judge holding co-accused's closing remarks prejudiced accused, undermined right to silence. Trial judge declining to give remedial instruction, holding s. 4(6) of Canada Evidence Act precluded reference to accused's silence. Court of appeal holding trial judge erred, s. 4(6) only prohibited comments prejudicial to accused, not limiting instruction requested. Court of appeal upholding convictions, holding error harmless. Accused's further appeal dismissed. Section 4(6) of Canada Evidence Act did not preclude affirmation for right to silence, which should be done where realistic concern jury may place evidential weight on accused's decision not to testify. Jury entitled to take into account evidence uncontradicted in assessing reliability, credibility of Crown's case. Co-accused's counsel ought not to have made comment concerning accused's failure to testify. Co-accused could have relied on fact he testified to argue he was innocent, had nothing to hide but not to invite jury to use accused's silence as evidence of accused's guilt. Explicit remedial instruction from trial judge would have been preferable. Trial judge's charge functionally adequate to impart message Crown could prove accused's guilt only on evidence, accused's silence not evidence of guilt. Heydary-Caselaw_LT_Jan14_13.indd 1 R. v. Prokofiew (Oct. 12, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33754) Decision at 256 C.C.C. (3d) 355; 88 W.C.B. (2d) 702 was affirmed. 104 W.C.B. (2d) 190. FEDERAL COURT Immigration INADMISSIBLE AND REMOVABLE CLASSES Claimant was personal and knowing participant in international crimes Application for judicial review of denial of refugee claim. Applicant was citizen of Republic of Congo who voluntarily joined Congolese army in 1991 and served as sergeant until 1998, when he deserted following coup d'etat in Congo. Applicant fled Congo in 2000 and sought refugee protection in United Kingdom, which was eventually denied. Applicant returned to Congo in 2007 and was arrested upon his return. In November 2007, applicant fled to Canada and made claim for protection. Board denied applicant's refugee claim under s. 98 of Immigration and Refugee Protection Act (Can.), determining that there were serious reasons to believe that applicant had been complicit in war crimes and crimes against humanity by reason of role he played in Congolese army. RPD determined that Congolese army committed crimes against humanity and war crimes over period from 1993 to 1997, time during which applicant was member of army. To consider whether applicant was complicit in crimes army committed board applied six so-called Bahamin factors, i.e. method of applicant's recruitment, his position in Congo- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. lese army, nature of Congolese army, his knowledge of crimes or acts committed by Congolese army, length of his association with Congolese army and opportunity for him to have left army before date he deserted. RPD concluded that there were serious reasons to consider that applicant had been complicit in war crimes and crimes against humanity committed by Congolese army and, accordingly, was disentitled to protection under Act. Applicant contended that rather than focusing on Bahamian factors RPD ought to have considered whether applicant participated in any of Congolese army's crimes in manner analogous to that of criminal accomplice. Application dismissed. Test applied by board was correct one. It was not error for board to apply Bahamian factors to gauge whether claimant was personal and knowing participant in international crimes committed by organization to which he or she belonged. These factors were meant to assess degree of applicant's participation, have been often recognized by this court as being appropriate for board to apply and were consistent with case law of Federal Court of Appeal. Board did not commit reviewable error in applying this test. Board's decision was reasonable, and accordingly application must be dismissed. Nsika v. Canada (Minister of Citizenship and Immigration) (Aug. 29, 2012, F.C., Gleason J., File No. IMM-8775-11) 221 A.C.W.S. (3d) 685. REFUGEE STATUS Decision-maker entitled to make decision in either of Canada's official languages Application for judicial review of negative pre-removal risk assessment (PRRA). Applicant's PRRA application was written www.lawtimesnews.com in English, but was considered by French speaking PRRA officer. Applicant alleged that officer's English language proficiency was uncertain and not demonstrated. Applicant contended that fact that decision was written in French indicated that officer was unable to write in English, and therefore it was unlikely that she could read and fully appreciate applicant's English application. Applicant also contended that fact that month in which PRRA application was received was omitted, fact that officer did not check off either box for one of statements in notes to file form, and there were typographical errors in officer's letter to this court's administrator were further indication of her lack of proficiency in English. Applicant contended that she had been denied natural justice by officer's lack of English proficiency. Application dismissed. There is no presumption that decision written in French means that decisionmaker did not understand English submissions and evidence. Jurisprudence clearly states that unless particular prejudice is shown in specific case, decisionmaker was entitled to make decision in either of Canada's official languages. Applicant had not identified any misconstruction of applicant's submissions or any material error in officer's findings of fact. Absent any real prejudice, there was no reviewable error. There was no error as alleged in officer's decision. Although she wrote her decision in French, there was no indication that this prejudiced applicant. Accordingly, there was no denial of natural justice. Filha v. Canada (Minister of Citizenship and Immigration) (Aug. 24, 2012, F.C., O'Keefe J., File No. IMM-6689-11) 221 A.C.W.S. (3d) 692. SELECTION AND ADMISSION Mother reasonably expected to cause excess demand on health services in future Application for judicial review of denial of appeal of refusal to issue visa to applicant's mother, since she suffered from chronic renal failure and was inadmissible to Canada on health grounds as being reasonably expected to cause excessive demands on health or social services. Applicant arrived in Canada in 2000 and was now citizen. He applied to bring his mother to country in 2004, but related medical examination revealed diagnosis of "Renal Failure-Chronic". Following review of medical evidence, medical officer and visa officer maintained that mother had health condition that might reasonably be expected to cause excessive demand on health services and refused her permanent residence visa application. Medical evidence indicated that while mother's condition was at present stable, loss of kidney function due to aging, as well as hypertension and microproteinuria, may not be reached for another five to ten years. Applicant appealed visa officer's decision. Appeal was dismissed by IAD and applicant applied for judicial review. Application dismissed. Medical evidence supported conclusion that mother would reasonably be expected to cause excess demand on health services in future. Applicant's suggestion that he would undertake to pay for health services for mother for next five to ten years would not be enforceable. With respect to humanitarian and compassionate (H&C) factors, IAD found that although situation of applicant's family was sympathetic one, there were no undue hardships of not granting relief. IAD referred to stability of her 13-01-09 2:33 PM

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