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Page 14 February 25, 2013 �� Law Times ��� 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. FEDERAL COURT OF APPEAL Taxation TOBACCO TAX Provincial authority could not provide exemption from federal duties This was appeal of dismissal of appeals of assessments made under Excise Act, 2001 (Can.) (���EA���). Appellant was corporation that manufactured and sold tobacco products at its principal place of business located on First Nations reserve. Appellant held manufacturer���s licence for purposes of EA and must pay duty. From Sept. 2005 to July 2007, appellant did not pay duty under EA on manufactured tobacco products it sold to retailers located on reserves in Ontario. Appellant claimed that unmarked cigarettes under meaning of Tobacco Tax Act (Ont.), and which may only be sold to Indians on reserves in Ontario were not packaged for sale to general public under meaning of s. 2(b) of Stamping and Marking of Tobacco Products Regulations (Can.), and were exempt from tobacco duties under EA. Appellant appealed assessments made under EA. Appeals were dismissed. Tax court judge concluded that duty on appellant���s tobacco products became payable pursuant to s. 42(1)(a) of EA when products were packaged for sale to Indians. Appeal dismissed. Textual, contextual and purposive interpretation to applicable legislative and regulatory provisions led to conclusion that cigarettes and other tobacco products manufactured in Canada and packaged for eventual sale on Indian reserves were subject to duty on tobacco set out in EA. Purpose and intent of s. 42(1)(a) of EA, read with s. 2(b) of Regulations, was to impose duty on tobacco products, which was payable by tobacco manufacturer at time products were packaged in smallest package in which they were normally offered for sale to general public. EA did not provide for exemption from duties on tobacco products destined for sale on Indian reserves or to Indians. There was no inconsistency between expression ���general public��� in s. 2(b) of Regulations and marketing and sale of tobacco products to Indians on reserves. EA did not exempt manufacturers from paying duty on tobacco products when products were sold on reserve to Indians. There was no reason to find that sales of tobacco products made on reserves to Indians were not sales to general public. Indians were general public for which appellant was authorized to manufacture cigarettes. Provincial authority could not provide exemption from federal duties. Grand River Enterprises Six Nations Ltd. v. Canada (Sep. 19, 2012, F.C.A., Mainville, Sharlow and Trudel JJ.A., File No. A-495-11) Decision at 213 A.C.W.S. (3d) 227 was affirmed. 222 A.C.W.S. (3d) 278. FEDERAL COURT Charter of Rights EQUALITY RIGHTS Serious criminality is not an immutable personal characteristic Combined effect of s. 50(1)(b) of Immigration and Refugee Protection Act (Can.) and ss. 99(1) and 128(3) Corrections and Conditional Release Act (Can.) was that foreign nationals, incarcerated for having committed criminal offence, were subject to removal from Canada immediately upon being granted any form of conditional release. Accused, Jamaican citizen serving sentence for second degree murder of his girlfriend, asked court to find those provisions unconstitutional. Accused argued that he was deprived of benefit of day parole (���DP���), unescorted temporary absence (���UTA���) and those forms of conditional release because, if granted, they would result in his immediate deportation to Jamaica and argued foreign nationals were denied benefits of gradual release and reintegration into society. Court found that accused had no factual basis to bring application but decided to entertain Charter arguments in case it was wrong. Application dismissed. SCC held that s. 6 permitted Parliament to discriminate between citizens and non-citizens by determining terms and conditions of their right to enter and remain in Canada given this legal foundation, Parliament did not discriminate within meaning of s. 15 when it imposed minimum time to be served in custody prior to removal; there was distinction but it was not discriminatory distinction. Since accused had no right to remain in Canada there could be no differential treatment. Accused was not denied benefits of UTA and DP because of his citizenship, but rather because of his citizenship combined with his conviction for second degree murder; serious criminality is not immutable personal characteristic. Even if threshold question of discriminatory distinction were established, provisions were saved by These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. s. 1. McLeod v. Canada (Attorney General) (Nov. 22, 2012, F.C., Rennie J., File No. T-1385-11) 104 W.C.B. (2d) 490. Civil Procedure COSTS Defendant���s behaviour reprehensible, scandalous and outrageous Plaintiffs, well-known United States companies and developers of popular software programs, claimed defendant infringed their copyright through unauthorized reproduction and sale of counterfeit copies of plaintiffs��� computer software products and reproduction of cover art used on software program packaging. Plaintiffs applied for summary judgment. Summary judgment appropriate since evidence of infringing conduct overwhelming, statement of defence has not substantive merit and, other than filing defence, defendant has not participated in action and did not appear for hearing of summary judgment motion. Defendant���s infringing conduct and his response to being held accountable for this conduct particularly egregious and requires clear deterrent message in form of declarations regarding subsistence of copyright, injunction to protect copyright, maximum statutory damages and punitive damages. Defendant���s behaviour reprehensible, scandalous and outrageous, also justifying costs on solicitor-client basis. Adobe Systems Inc. v. Thompson (Oct. 18, 2012, F.C., Campbell J., File No. T-2055-11) 222 A.C.W.S. (3d) 228. Immigration EXCLUSION AND EXPULSION Relationship with father not proof of complicity in crimes against humanity Application for stay of removal order. Applicant was citizen of Rwanda of Hutu ethnicity, who arrived in Canada in 1999 and made Convention Refugee claim. During Rwandan genocide applicant was employed as intern in hospital where genocidal atrocity took place, and was allegedly present during atrocity. Applicant���s father had been member of governing party in Rwanda at time of genocide, and was subsequently convicted of crimes against humanity and sentenced to 22-year term of imprisonment. To date, applicant was never charged, neither was he accused of anything, nor was there any investigation in his regard by Rwandan government. Applicant���s refugee claim was dismissed, on finding that apwww.lawtimesnews.com plicant was inadmissible person by operation of articles 1(F)(a) and 1(F)(c) of Convention, and removal order issued. Applicant brought two applications for PreRemoval Risk Assessment, both of which were dismissed. Applicant then brought application for admission to Canada on humanitarian and compassionate grounds, which was dismissed. Applicant brought application for stay of removal order. Application dismissed. Applicant���s relationship to father was not proof of his complicity in crimes against humanity or human rights violations. However, risk of prosecution in Rwanda, including possible resort to pre-trial detention, did not constitute irreparable harm for purpose of stay. In totality of circumstances stay of execution of removal order was not appropriate and application was accordingly properly dismissed. Application dismissed. Teganya v. Canada (Minister of Citizenship and Immigration) (Oct. 22, 2012, F.C., Shore J., File No. IMM-9799-12) 222 A.C.W.S. (3d) 199. INADMISSIBLE AND REMOVABLE CLASSES Panel���s assessment of hardship ignored severity of applicant���s condition Application for judicial review of decision upholding exclusion order previously issued against applicant for misrepresentation. Applicant, aged 28, was citizen of Jamaica who immigrated to Canada in Sept. 2006 as sponsored permanent resident under family class. Prior to coming to Canada, applicant had given birth to child who lived with his father in Jamaica since applicant came to Canada. She disclosed this information to nurse who performed her medical examinations for purpose of assessing her admissibility, but did not have immigration interview and did not inform visa officer when she went to embassy to pick up her visa. Upon arriving in Canada, applicant revealed to visa officer that she had son and exclusion order was issued against her in May 2009. On appeal before Immigration Appeal Division, applicant did not challenge validity of her exclusion order but requested that panel exercise its discretion to consider whether sufficient humanitarian and compassionate (���H&C���) grounds existed to warrant special relief in light of special circumstances of her case under s. 67(1)(c) of Immigration and Refugee Act (Can.). Panel determined that special discretionary relief for H&C considerations was not warranted. Applicant had been diagnosed with paranoid schizophrenia and required continuing treatment with anti-psychotic medication, and since Jan. 2009, had resided in emergency shelter for single homeless women where she received supportive care from psychiatrist, nurse and caseworker. Panel concluded that there were insufficient H&C reasons to warrant discretionary relief in circumstances and maintained applicant���s exclusion order. Applicant contended that panel erred by finding that applicant could get psychiatric, social and housing support she required in Jamaica and violated natural justice by failing to raise during hearing its concerns with respect to availability of relatives in Jamaica. Application allowed. Panel���s assessment of evidence of applicant���s hardship in Jamaica was unreasonable as it ignored severity of applicant���s condition, extent of care that her condition required and degree to which she was currently dependent on community-based medical and social support she was receiving in Canada. Panel took issue with absence of applicant���s family members at hearing, but failed to raise issue in meaningful manner at hearing or provide applicant with real opportunity to present required evidence. Palmer v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 2, 2012, F.C., Gagne J., File No. IMM-110012) 222 A.C.W.S. (3d) 200. REFUGEE STATUS Applicant not given opportunity to address concern over authenticity of documents Application for judicial review of reconsideration made by Canada Border Services Agency Officer in which officer decided that negative eligibility decision would stand. Minister���s delegate found that because applicant had not satisfied immigration officer that he qualified under exception stated in s. 159.5 and s. 159.6 of Immigration and Refugee Protection Regulations (Can.), applicant fell under Safe Third Country Agreement and he was ineligible to make refugee claim in Canada. Officer examined supplementary identity documents filed by applicant and concluded that documents did not bring any new information to light that was not available to officers at time initial negative decision was rendered. Officer stated that applicant had demonstrated that he had ability and means to obtain documents through third party and that he may circumvent normal exit procedures with regards to his identity and travel. Officer recommended that negative eligibility decision should stand. Applicant contended that of-

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