Law Times

Page 13 Law Times • April 8, 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 Jury EMPANELLING Non-disclosure did not affect composition of jury Accused convicted of fraud. Crown seeking and obtaining information from local police forces regarding prospective jurors' criminal histories and other information about jurors. Crown not disclosing information to defence. Court of Appeal held that non-disclosure did not affect composition of jury or create trial unfairness. Appeal dismissed. Crown breached obligations by failing to disclose information obtained about prospective jurors. Accused failed to show that non-disclosure affected composition of jury. Conduct of Crown and police was improper but did not warrant setting aside proceedings as miscarriage of justice. R. v. Emms (Dec. 21, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 34087) Decision at 264 C.C.C. (3d) 402 was affirmed. 104 W.C.B. (2d) 1041. FEDERAL COURT Charter of Rights SELF-INCRIMINATION Auditors can continue to assess civil liability while criminal investigation unfolds Applicants were allegedly involved in tax plan operated by Independent Business Consultants Association, in which business losses could be sold to other taxpayers. Canada Revenue Agency ("CRA") brought criminal investigation of promoters of plan. CRA also conducted civil audits of applicants and asked them to provide relevant information and documents. However, none of them responded. As result, they received requirements for information ("RFIs"). None of them responded to those, either. Rather, applicants commenced proceedings seeking to overturn RFIs. Applicants claimed that RFIs were improperly issued for purpose of gathering information for criminal investigation against them and that RFIs violated their right to remain silent protected under s. 7 of Charter. Application dismissed. Only one applicant was under criminal investigation at time RFIs were issued. There was no objective evidence indicating that other applicants were under criminal investigation. Therefore, only individual applicant's s. 7 liberty interests were engaged in this case. Mere fact that individual applicant was under criminal investigation was not enough to defeat RFIs. Auditors can continue to assess civil liability while criminal investigation unfolds. If auditors were forced to cease work after investigation commenced, taxpayers could avoid civil liability when their conduct raised concerns of criminal conduct. Predominant purpose of RFIs issued against applicants, including individual applicant, was civil. Therefore, their s. 7 Charter rights, specifically, right to remain silent and to avoid self-incrimination were not engaged. Breau v. Minister of National Revenue (Oct. 17, 2012, F.C., O'Reilly J., File No. T-1623-09; T-1625-09) 104 W.C.B. (2d) 1019. Citizenship APPEAL Inadequacy of reasons was significant flaw Appeal by Minister of Citizenship and Immigration from decision of citizenship judge, granting respondent citizenship. Respondent was citizen of Iran who entered Canada and was landed as permanent resident. He applied for citizenship on May 10, 2008. Relevant period for calculating his residence in Canada was May 10, 2004 to May 10, 2008. Respondent appeared before citizenship judge on October 11, 2011. After hearing respondent submitted additional evidence relevant to period at issue, including pay stubs, college transcripts and attestation of participation in language training program. Citizenship judge approved application, finding applicant met criteria as defined in Koo (Re) (1992), 37 A.C.W.S. (3d) 435 (F.C. T.D.). Issue whether citizenship judge erred in finding that respondent met residence requirement set out in s. 5(1)(c) of Citizenship Act (Can.). Applicant contended that citizenship judge who chooses to apply reasoning in Koo must make it clear that all relevant factors were addressed in reaching decision and that judge erred by not mentioning which factors of Koo test were relevant to his decision. Applicant further contended that three Koo factors required citizenship judge to determine when respondent was physically present in Canada during relevant period and that citizenship judge erred by not doing so. Application granted. Inadequacy of reasons was sig- These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. nificant flaw that contributed to unreasonableness of citizenship judge's decision. Reasons in case at bar were only one paragraph long. Decision stated that application was approved on basis of Koo criteria and that parts of requested documentation submitted by respondent after hearing were satisfactory. There was no explanation as to which documents satisfied citizenship judge or why documents he received subsequent to hearing responded to his concerns. All six factors from Koo did not need to be explicitly reviewed and analyzed by citizenship judge, but at very least he had to address Koo factors which were relevant to his decision. It was far from clear how citizenship judge arrived at his decision to approve respondent's citizenship application based on evidence before him. Decision of citizenship judge was unreasonable. Canada (Minister of Citizenship and Immigration) v. Ayatizadeh (Dec. 19, 2012, F.C., TremblayLamer J., File No. T-2111-11) 223 A.C.W.S. (3d) 315. Evidence OPINION EVIDENCE Experts properly led by own professional standards August 2012 order required prehearing conferencing of parties' expert witnesses. Conferencing by expert witnesses regarding liability and historical evidence proceeded pursuant to protocol. Parties directed to arrange for conferencing by expert witnesses regarding economic and remedy issues. As to second group of experts, question arose during trial management. Third party requested addition of sentence to original protocol. Proposed addition would permit any expert to alter or qualify report as result of conferencing. Plaintiffs' counsel opposed proposed addition. Addition not permitted. Nothing in conferencing process prevented expert from altering opinion. Court would not guide intended free exchange of information and views. Experts properly led by own professional standards and Federal Court expert witness Code of Conduct. Protocol should not vary for different groups of experts. Alderville Indian Band v. Canada (Nov. 2, 2012, F.C., Mandamin J., File No. T-195-92) 223 A.C.W.S. (3d) 403. Immigration PERSON IN NEED OF PROTECTION Board misapplied and misinterpreted concept "generalized risk" www.lawtimesnews.com Application for judicial review of finding that applicants were not persons in need of protection under s. 97(1)(b)(ii) of Immigration and Refugee Protection Act (Can.). Applicants were citizens of Mexico who fled Mexico to escape criminal and drug cartel. Applicants had been personally targeted by gang and had endured extortion fees, hijacking of their store, death threats, physical assault, kidnapping, and forced participation in drug distribution by gang. Board identified determinative issue to be that of generalized risk and that applicants were not personally at risk, since they faced risk that was faced by general population in Mexico, that of criminal activity. Application granted. Board misapplied and misinterpreted concept "generalized risk" under s. 97 of Act. Board mentioned that principal applicant was personally subject to risk of harm under s. 97 involving extortion and gang violence, however it nevertheless found that applicant's risk on return was generalized one. This was capricious and arbitrary finding, this conclusion which was not otherwise supported by evidence on record and was contrary to intent of exclusionary clause. It was unreasonable to decide that claimant was specifically targeted, yet then go on to conclude that there was lack of personalized risk due to widespread nature of that same risk in claimant's country. Board's determination that applicants were not persons in need of protection under s. 97 of Act was unreasonable and shall be set aside. Castaneda Malvaez v. Canada (Minister of Citizenship and Immigration) (Dec. 14, 2012, F.C., Martineau J., File No. IMM2803-12) 223 A.C.W.S. (3d) 467. REFUGEE STATUS Nothing in psychologist's report suggested adverse credibility finding was unreasonable Application for judicial review of denial of refugee claim. Applicant was Sikh citizen of India who alleged that she would face risk of persecution if she were required to return to India. Applicant alleged that she had been arrested and beaten at police station as result of her association with member of Muslim Hizbul Mujahideen. Applicant alleged that after her release she was subjected to harassment and abuse that amounted to persecution. Board denied claim, finding applicant to be not credible and that she lacked subjective fear, evidenced by her delay in claiming refugee status. Applicant had visited psychologist before hearing and had provided informa- tion to psychologist, which was summarized in psychologist's report. Board referred to psychologist's evidence regarding her symptoms of Post-Traumatic Stress Disorder and observed that such evidence did not mean that her symptoms necessarily resulted from reasons that she identified. Board also noted that psychologist had obtained information about what had allegedly occurred in India from applicant herself, and in view of credibility concerns it had identified with respect to applicant's testimony, it had decided to give no weight to psychologist's report, in terms of corroborating those alleged events. Applicant contended that board was obliged to specifically consider psychologist's report in its assessment of her credibility, and that its failure to demonstrate in its reasons that it did so constituted reviewable error. Application dismissed. Recent jurisprudence from Supreme Court has significantly reduced scope for setting aside decisions of board on basis that it did not consider or did not sufficiently consider contents of psychologist's report. It has also significantly narrowed range of potential circumstances in which board may be said to have obligation to explicitly consider and address, in its reasons, contents of psychologist's report in making credibility findings. Unless there is something in psychologist's report which strongly suggests that adverse credibility finding made by board was unreasonable, it would be inconsistent with Supreme Court's teachings to require board to specifically address report or anything in report in making such finding. In this case, there was nothing in psychologist's report which strongly suggested that board's adverse credibility finding was unreasonable. It was not unreasonable for board to have failed to specifically address psychologist's report in course of making its adverse credibility finding. Kaur v. Canada (Minister of Citizenship and Immigration) (Nov. 28, 2012, F.C., Crampton C.J., File No. IMM-424-12) 223 A.C.W.S. (3d) 469. Court cannot intervene where criticism of translation services is raised after hearing Application for judicial review of denial of refugee claim. Applicant was Chinese citizen who claimed refugee protection on basis of her fear of persecution on account of her participation in underground Protestant Christian church in Guangdong province in China. Public Security Bureau ("PSB") carried out

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