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www.lawtimesnews.com LAW TIMES 14 COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 4, 2019 Supreme Court of Canada Criminal Law OFFENCES AGAINST RIGHTS OF PROPERTY ThefT and relaTed offences Accused's guilt was the only reasonable inference Accused was convicted of theft under $5000 and sentenced to six months' imprisonment. Accused was firefighter who stole neck- lace and cash from deceased's room. Crown's case rested on observations of other firefighters that accused acted unusually and went alone into deceased's room. Firefighters then found money and necklaces in accused's jack- et. Deceased's daughter testified that necklaces resembled those owned by her mother. Accused appeal from convicted and sen- tence were dismissed. Convic- tion was reasonable as trial judge was entitled to find that accused's guilt was the only reasonable in- ference. Sentence imposed was not demonstrably unfit. Accused appealed. Appeal dismissed. Ap- pellate court reasons for dismiss- al were agreed with. R. v. Fedyck (2019), 2019 CarswellMan 10, 2019 Carswell- Man 9, 2019 SCC 3, 2019 CSC 3, Abella J., Moldaver J., Kara- katsanis J., Gascon J., and Côté J. (S.C.C.); affirmed (2018), 2018 CarswellMan 299, 2018 MBCA 74, Michel A. Monnin J.A., Hol- ly C. Beard J.A., and Jennifer A. Pfuetzner J.A. (Man. C.A.). Public Law ELECTIONS VoTers Denying long-term non-resident citizens the right to vote infringes their s. 3 Charter rights Applicants were two Canadian citizens who had been living in United States for more than five years for educational and employ- ment reasons. Applicants had very strong connections to Can- ada. Applicants' application for declaration striking down provi- sions of Canada Elections Act, extinguishing their right to vote through provision limiting ex- ception to residence requirement to those absent from Canada for less than five years and intend- ing to return to live in Canada, was granted. Crown's appeal was allowed. Applicants appealed. Appeal allowed. Vague and un- substantiated electoral fairness objective purportedly served by denying voting rights when non- resident citizens crossed arbitrary five-year threshold was not rea- sonable limit that could be de- monstrably justified under s. 1 of Charter. Regardless of whether this type of limit could be ratio- nally connected to objective of en- suring non-resident citizens had sufficient connection to Canada in terms of subjective commit- ment and extent to which they were affected by Canadian laws, limitation was not minimally im- pairing. There was little to justify choice of five years as threshold or to show how it was tailored to respond to specific problem. Measure applied to many indi- viduals with deep and abiding connections to Canada in man- ner far broader than necessary to achieve electoral fairness objec- tive. Disenfranchisement denied citizens fundamental democratic right and came at expense of their sense of self-worth and dignity, which deleterious effects far out- weighed any speculative benefits that measure might bring about. Frank v. Canada (Attorney General) (2019), 2019 Carswel- lOnt 154, 2019 CarswellOnt 155, 2019 SCC 1, 2019 CSC 1, Wag- ner C.J.C., Moldaver J., Karakat- sanis J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellOnt 10870, 2015 ONCA 536, G.R. Strathy C.J.O., John Laskin J.A., and D.M. Brown J.A. (Ont. C.A.). Federal Court of Appeal Pensions FEDERAL AND PROVINCIAL PENSION PLANS federal pension plans It was open to Appeal Division to refuse to hear new evidence Social Security Tribunal Appeal Division allowed Minister of Employment and Social Devel- opment's appeal from General Division's decision. Appeal Di- vision held that s. 49, not s. 44, of Canada Pension Plan (CPP) ap- plied for purpose of calculating applicant's retirement pension contributory period. Appeal Di- vision confirmed that applicant's contributory period was 79 months rather than 75 months. Applicant brought application for judicial review. Application dismissed. It was reasonable for Appeal Division to apply s. 49 of CPP to calculate contributory period in context of retirement pension. It was open to Appeal Division to refuse to hear new evidence. Bartlett v. Canada (At- torney General) (2018), 2018 CarswellNat 5169, 2018 FCA 165, Nadon J.A., Stratas J.A., and Richard Boivin J.A. (F.C.A.). Tax INCOME TAX foreign income State of residence was entitled to tax pension income arising in another state Taxpayer received pension from Columbia since 2014. Taxpayer filed his income tax returns in 2014 and 2015, in which he re- ported receiving Columbian pension amounts but claimed deductions from income equal to Columbian pension income. Minister denied deductions claimed on basis that pension income was taxable in Canada and taxpayer unsuccessfully appealed. Tax court concluded that Article 17(1) of Canada- Columbia Tax Convention Act entitled Canada, as country of residence, to tax taxpayer's Columbian pension benefits. Taxpayer appealed. Appeal dis- missed. Wording of Article 17(1) of Convention was clear in that state of residence was entitled to tax pension income arising in another state. Accused referred to documentation like Interna- tional Covenant on Economic, Social and Cultural Rights but Covenant did not deal with tax- payer per se, and it could not have any impact on interpreta- tion of Convention adopted by tax court considering specific issues before it. Reyes v. Canada (2019), 2019 CarswellNat 37, 2019 FCA 7, Johanne Gauthier J.A., David Stratas J.A., and D.G. Near J.A. (F.C.A.). Federal Court Immigration and Citizenship CITIZENSHIP loss of ciTizenship Applicant voluntarily, knowingly, and significantly contributed to crimes of killing squad Applicant citizen significantly misrepresented his activities in World War II when apply- ing to enter Canada. Upon dis- covery that applicant served as interpreter for Nazi killing squad, Governor-in-Council (GIC) made multiple attempts to revoke his citizenship but was limited by policy restricting such revocation for World War II matters to those complicit in war crimes or crimes against humanity. After judicial review proceedings led to new frame- work for assessing complicity and defence of duress, GIC again decided to revoke applicant's cit- izenship. Applicant applied for judicial review. Application dis- missed. Length of proceedings was largely due to applicant's successful procedural steps rath- er than any unreasonable gov- ernment delay. GIC decision was procedurally fair and did not meet high threshold necessary for finding abuse of process. No oral hearing was required where full oral hearing in prior judicial proceeding had resulted in cred- ibility findings and findings of fact. Minister's report recom- mending revocation, which was accepted by GIC, weighed evi- dence on record as well as such judicially determined findings to determine what most plausi- bly occurred with respect to is- sues only now required for con- clusions on complicity and du- ress. Applicant had reasonable opportunity to participate in meaningful manner in process and knew basis on which deci- sion was made. Report compre- hensively and straightforwardly considered evidence and ap- plicant's submissions. GIC rea- sonably found serious grounds for considering that applicant voluntarily, knowingly, and sig- nificantly contributed to crimes of killing squad. GIC looked at all relevant factors, including applicant's age, his role in kill- ing squads, his length of service, his location of service and what criminal activities were being conducted at these locations, his likely knowledge, his joining of 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. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. Case Law CASE LAW Containing contact information for more than 66,000 judges and legal professionals, more than 27,500 law offices, government departments, and law related offices, canadianlawlist.com attracts more than 325,000 page views a month and 110,000 unique visitors! Book your enhanced listing today! Contact Colleen Austin at 416.649.9327 or colleen.austin@tr.com www.canadianlawlist.com Enhance your presence on Canada's largest legal directory AVAILABLE ONLINE AND IN PRINT Untitled-2 1 2018-09-05 10:17 AM Legal News at Your Fingertips Sign up for Canadian Legal Newswire today for free and enjoy great content. Visit canadianlawyermag.com/ newswire-subscribe ntitled-1 1 2019-01-24 9:56 AM

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