Law Times

Page 13 Law Times • March 11, 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 No reasonable possibility jury would have been different had disclosure been made Accused appealing conviction for first degree murder following high profile trial for killing police officer. While appeal pending, Crown disclosing fact police had annotated jury lists with personal opinions as to suitability of jurors. Police providing only perfunctory opinions as to suitability of jurors, not providing basis for opinions. Extensive prescreening of jurors taking place to ascertain any partiality, bias as victim was police officer. Crown challenging some jurors with positive reports from police, not challenging one with negative report. Court of Appeal dismissing appeal, holding police opinions were not "information" required disclosed. Appeal court holding jury would not have been differently constituted if police opinions had been disclosed in light of extensive pre-trial screening, pattern of use of peremptory challenges. Further appeal dismissed. Crown permitted to consult with police regarding concerns relating to partiality, eligibility, and suitability of prospective jurors provided relevant information disclosed. General impressions of officers need not have been disclosed provided underlying information readily ascertainable by members of community, and defence can draw own inferences based on raw information. Failure to disclose must have resulted in reasonable possibility that jury would have been differently constituted in order to displace presumption of juror impartiality. Crown entitled to demonstrate juror partiality if presumption displaced. Crown should not have gathered police opinions in accused's case as reflected information obtained as police officers, and community residents with no underlying information provided for bald opinions. Court of Appeal holding that no reasonable possibility jury would have been different had disclosure been made entitled to deference. No appearance of unfairness in proceedings that rose to level of miscarriage of justice. R. v. Davey (Dec. 21, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 34179) Decision at 264 C.C.C. (3d) 465, 93 W.C.B. (2d) 668 was affirmed. 104 W.C.B. (2d) 751. FEDERAL COURT Charter of Rights FREEDOM OF EXPRESSION Inmate ought to have pursued his claim through grievance process Inmate was incarcerated in federal penitentiary, serving sentence of life imprisonment for four counts of first degree murder, single count of attempted murder and two counts of forcible confinement. While in prison, inmate had authored numerous articles that had been published in variety of scientific journals. In past inmate was able to send electronic copies of his articles on diskette to members of his family, whom he stated forwarded diskettes to journals to facilitate publication. Inmate asserted that new article he wrote was accepted for publication based on typewritten draft that he submitted, but claimed that journal that accepted it required that he provide article in electronic format for it to be published. Inmate alleged that he was prevented from sending diskette of this article to members of his family or to journal by virtue of Bulletin issued by Acting Director, Security of Correctional Services Canada ("CSC") which prohibited inmates from sending any "form of electronic media through mail to destinations outside of CSC institutions". Inmate applied to have prohibition set out in Bulletin declared to violate his right to freedom of expression and requested order allowing him to mail computer diskettes to his family, enforceable immediately, regardless of whether or not there was appeals from any order court might issue. Application dismissed with $1,500 costs. Inmate ought to have pursued his claim through grievance process. Absent exceptional circumstances which would render grievance procedure available to inmates ineffective, court should decline to hear judicial review applications in respect of matters that may be subject of grievance. These issues should be decided in first instance through grievance process as this would allow for appropriate record to be compiled. Another judge had dismissed similar claim by inmate for similar reasons earlier in year. Fabrikant v. Canada (Dec. 18, 2012, F.C., Gleason J., File No. T-1981-12) 104 W.C.B. (2d) 722. Immigration IMMIGRATION APPEAL BOARD Finding of inadmissibility precluded appeal, not deportation order This was application for judicial review of IAD's decision hold- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. ing it did not have jurisdiction to hear applicant's appeal. Applicant was citizen of Sri Lanka and Tamil. He arrived in Canada in 1994 and was found to be Convention Refugee in 1995. He became permanent resident in 1997. Between 1999 and 2001 applicant was convicted of assault, failure to comply with recognizance and mischief. Applicant was subsequently found to be inadmissible for organized crime under paragraph 37(1) (a) of Immigration and Refugee Protection Act (Can.), because of his membership in gang and deportation order was issued. Respondent Minister issued danger opinion under s. 115(2)(b) of Act. Applicant successfully applied for judicial review of danger opinion and removal order. Report was issued stating that applicant was inadmissible under s. 36(2)(a) of Act for reasons of criminality. New deportation order was issued. Applicant sought to appeal deportation order. IAD determined it did not have jurisdiction under s. 64(1) to hear appeal because applicant had been found inadmissible on grounds of organized criminality. Application dismissed. Standard of review was correctness. It was not earlier deportation order that operated to deprive applicant of appeal of new deportation order but it was finding of inadmissibility. Section 64(1) of Act did not preclude individual from appealing to IAD because deportation order was issued but stated that no applicant found inadmissible on grounds of organized criminality could appeal to IAD. Finding of inadmissibility precluded appeal to IAD, not existence of deportation order. IAD was correct to find it did not have jurisdiction to hear appeal. Nagalingam v. Canada (Minister of Citizenship and Immigration) (Dec. 3, 2012, F.C., Boivin J., File No. IMM-2411-12) 222 A.C.W.S. (3d) 770. JUDICIAL REVIEW Applicant aided smugglers in exchange for food This was application for judicial review of panel's decision issuing deportation order. Applicant, aged 26, was Tamil of Sri Lankan nationality. He was one of 492 migrants who were smuggled into Canada aboard ship. Panel issued deportation order against applicant after determining he was inadmissible to Canada on grounds of organized criminality in context of transnational crime of people smuggling, pursuant to s. 37(1)(b) of Immigration and Refugee Protection Act (Can.), and defined in s. 117(1). Panel found that applicant had meaningfully supported people smugwww.lawtimesnews.com gling operation by performing watch keeping and cooking duties for benefit of crew. Application granted. Standard of review was reasonableness. Panel reached unreasonable conclusion when it found that applicant's acts constituted aiding and abetting coming into Canada of unauthorized people pursuant to s. 117(1) of Act. It was unreasonably large reading of s. 117(1) to suggest that any services performed in favour of smugglers could be viewed as aiding and abetting coming into Canada of illegal aliens. Panel's analysis was not informed by context of complete dependency, vulnerability and power imbalance which applicant found himself. It was unreasonable to disregard lack of role and authority of applicant in organization or in process of smuggling operation. Knowledge of fact that other passengers did not have required visa documents to enter Canada could not reasonably justify conclusion that applicant engaged in activity of people smuggling. Panel erred in law by failing to establish required mens rea. Panel erred in law in failing to consider reasons for which applicant sought to out help smugglers. He aided smugglers in exchange for food. Decision did not come within range of possible, acceptable outcomes that were defensible in respect of facts and law. B306 v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 9, 2012, F.C., Gagne J., File No. IMM-2309-12) 222 A.C.W.S. (3d) 772. Prisons INMATES' RIGHTS At best, opinion of Minister was speculative Inmate applied for judicial review of decision refusing his transfer to Canadian correctional facility. Inmate, Canadian citizen incarcerated in low-security correctional institution in Pennsylvania in United States, wished to serve remainder of his sentence in correctional facility in Canada. This was second time court was asked to review legality of decision by Minister of Public Safety and Emergency Preparedness ("Minister") refusing his request for transfer. Inmate was stopped by Illinois state trooper for minor traffic violation, but it turned out that there were 119 kilograms of cocaine in vehicle. Inmate pleaded guilty to charges of possession with intent to distribute cocaine and improper entry into U.S. and was sentenced to 120 months of imprisonment, to be followed by five years of supervised release. U.S. authorities approved transfer. Contrary to conclusion of absence of risk and positive recommendation made by Correctional Service of Canada, Minister refused to consent to transfer, essentially because, in his personal opinion, inmate was likely to commit "criminal organization offence" considering absence of cooperation with police and nature of offence. Federal Court of Appeal ordered Minister to reconsider matter in light of its decision. Minister reconsidered matter and came to same result. Application allowed with costs, Minister directed to accept transfer request made by inmate and confirm in writing to inmate that all reasonable steps had been taken for his prompt transfer to correctional facility in Canada within 45 days. At best, opinion of Minister was speculative; s. 10 of International Transfer of Offenders Act (Can.) calls for objective assessment by Minister his conclusion of risk must be based on evidence on record and must also be rationally measured against positive factors indicated by evidence. It was apparent that Minister only paid lip service to reasons and directions given by Federal Court of Appeal; although second decision was longer, it was essentially rewording of Minister's first decision. Decision was unreasonable and disclosed reasonable apprehension of bias. Fact that inmate pled guilty to charge of possession with intent to distribute, which could be perhaps qualified as "criminal organization offence", was not sufficient in itself for denying transfer under Act. Lebon v. Canada (Minister of Public Safety and Emergency Preparedness) (Dec. 20, 2012, F.C., Martineau J., File No. T-1414-12) 104 W.C.B. (2d) 769. Taxation INCOME TAX Erroneous view of notice of led to series of flawed determinations Taxpayer sought judicial review of respondent MNR's refusal to issue notices of determination. Taxpayer was research and development company. Taxpayer made request to issue notices of determination of amount of taxpayer's refundable investment tax credits ("RITCs") for each of April 30, 1997, December 31, 1997, December 31, 1998 and December 31, 1999 taxation years. MNR refused request. Taxpayer sought order requiring MNR to issue notices of determination. Application granted. Standard of review was correctness. Reason requested notices of determination for RITC claims were not issued was because decision-maker took view that since taxpayer

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