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Page 14 raid on home where her church community was meeting. Applicant escaped and went into hiding, though two members of her congregation were purportedly arrested. Following raid, members of PSB allegedly came to applicant's house and that of her mother ten times, searching for her. There was no evidence that PSB ever left summons or warrant for her arrest. After hiding with relatives for almost three months, applicant came to Canada with help of smuggler. Board determined that applicant was neither Convention Refugee nor person in need of protection on basis of applicant's overall lack of credibility, applicant's Christian identity and lack of risk faced by Christians in Guangdong province, as described in documentary evidence. Applicant contended that inexperience of first interpreter with respect to Christian terminology raised apprehension of bias for all of testimony that she translated. Applicant further contended that board's reluctance to replace interpreter reinforced apprehension of bias. Application dismissed. With respect to first interpreter's inexperience, applicant has failed to demonstrate that there were in fact translation errors upon which board relied. When board determined that first interpreter indeed had inadequate knowledge of technical terms pertaining to practice of Christianity, it ensured that more experienced interpreter was brought in. Moreover, applicant's counsel at hearing did not raise specific objection to use of testimony translated by first interpreter. Law required that allegations of bias be made promptly, so as to allow decision-maker opportunity to recuse him or herself, and to save scarce judicial resources. Court cannot intervene where criticism of translation services is raised after hearing and no evidence of its inadequacy is provided. Applicant's failure to raise objection to use of testimony given with assistance of first interpreter prior to this hearing precluded her from relying on this argument. Cao v. Canada (Minister of Citizenship and Immigration) (Nov. 29, 2012, F.C., Near J., File No. IMM-2326-12) 223 A.C.W.S. (3d) 474. Board's implausibility findings based on speculation and misunderstanding of evidence Application for judicial review of denial of refugee claim. Applicant was citizen of El Salvador. Applicant had worked in El Salvador in court's Information and Technology ("IT") services and had access to confidential court records. Applicant was approached by gang and offered payment for access to confidential court files and began receiving threats when he refused to comply. Applicant's wife operated small store and was extorted by gang in July 2009, gang left notes indicating that April 8, 2013 Law Times • CASELAW they knew where applicant was. In June 2011, applicant's father was abducted and murdered. Board had found it implausible that gang would be able to identify applicant as someone with information to sell in court system. Board found applicant's presence in Canada implausible since gang had ample opportunity to kill applicant in El Salvador if that had been its intention. Board also found it implausible that applicant's wife had sent him original written threats that she had received and questioned why these notes were not provided to police after murder of applicant's father by gang in June 2011. Board found that determinative issue was applicant's credibility. Application granted. Applicant indicated that it was his position at court that initially made him target and fact that court personnel are targeted by gangs was also described in country condition documents. Father's murder occurred in 2011, over year after notes were received by applicant's wife and sent to applicant in Canada. This implausibility finding was based on board's misunderstanding of when notes were sent, when applicant's father was murdered, and which of these events the police had investigated. Board's suggestion that the gang would have killed applicant had they "actually wanted to", and that his mere presence in Canada made his story implausible, was based on speculation as to how this gang operated. It also unreasonably suggested that only way applicant's story would have been plausible was if he had actually been killed. Events which board found to be implausible were essential to applicant's claim as they described risk he faced and would face if he returned to El Salvador. Board's implausibility findings were based on speculation and misunderstanding of evidence that was before tribunal. As such, its implausibility findings were not reasonable. Martinez Giron v. Canada (Minister of Citizenship and Immigration) (Jan. 4, 2013, F.C., Kane J., File No. IMM-3227-12) 223 A.C.W.S. (3d) 470. SELECTION AND ADMISSION Applicant's procedural rights breached by non-disclosure of poison pen letter Application for judicial review of decision of Immigration Appeal Division dismissing appeal from visa officer's decision to refuse permanent resident visa to appellant's husband on ground marriage was not genuine. Appellant was citizen of India who became landed in Canada in 2000. In 2004, she entered into first marriage with national of India, sponsored him for permanent residency in Canada in 2005 and divorced him in 2007. Appellant subsequently became involved with married Indian national. Appellant had become pregnant with this man's child and had abortion after he refused to divorce his wife and marry her. Appellant met second husband (applicant for permanent residence) in India in November 2007 and married him in India in January 2008. Appellant sponsored her husband for permanent residency in Canada in January 2009. Application was refused by visa officer in May 2009 after interviewing husband. In March 2009, Citizenship and Immigration Canada had received poison pen letter alleging appellant had defrauded Canadian immigration authorities by charging $20,000 cash for former and current husband sponsorship. Evidence was unsworn evidence and author was unidentified. Counsel for appellant contended that Visa Officer breached husband's procedural rights by not disclosing to him poison pen letter as poison pen letter had tainted his decision. Application granted. Applicant's procedural rights were breached by non-disclosure of poison pen letter which specifically referred to applicant and accused her of arranging false marriages and charging money for such arrangements. It accused her of working illegally and named husband as person being sponsored. Visa Officer did allude to poison pen letter when she informed P. that she had received information that marriage to appellant was not genuine. Fairness required that husband be confronted with entire letter in order to provide him with fair opportunity to react to it. It was clear from both tribunal's decision and that of Visa Officer that contents of poison pen letter had impact on decision. Poison pen letter should have been disclosed and handed over to Royal Canadian Mounted Police for investigation. Patel v. Canada (Minister of Citizenship and Immigration) (Nov. 28, 2012, F.C., Lemieux J., File No. IMM-9745-11) 223 A.C.W.S. (3d) 483. ONTARIO CRIMINAL CASES Appeal GENERAL Conflicting decision does not mean one that results from differing exercise of discretion Applicant women's clinic sought leave to appeal from decision refusing interlocutory injunction restraining federal government from destroying data about unrestricted firearms contained in Firearms Registry, requiring federal government to allow access to all persons legally entitled to have access to registry and to continue employment of all staff to allow that to happen, and to continue to register all transfers of non-restricted firearms. On motion for leave to appeal, applicant limited its challenge to refusal to grant injunction preventing destruction of data. Leave to appeal refused. Quebec www.lawtimesnews.com government's success in obtaining interlocutory injunction requiring continuation of registry for unrestricted firearm did not amount to conflicting decision. Conflicting decision means decision which applies different principles, not decision that results from differing exercise of discretion. Quebec decision took place in context of division of powers analysis, where province asserted interest in data, and proposed to establish its own registry for unrestricted weapons. This is far different from subject challenge under ss. 7 and 15 of Charter. Motion judge concluded that application fell short in establishing that irreparable harm would result in event interlocutory injunction was not granted. Motion judge concluded that there was scant evidence that repeal of requirement to also register individual non-restricted firearms would have any effect on risk of violence towards women. He was entitled to consider this in assessing whether to grant injunction. Applicant's interest in preservation of data also depended on this link. Motion judge made no errors in principle which would justify appellate intervention. Barbra Schlifer Commemorative Clinic v. Canada (Oct. 4, 2012, Ont. S.C.J. (Div. Ct.), Pardu J., File No. 457/12) Leave to appeal from 104 W.C.B. (2d) 398, 222 A.C.W.S. (3d) 67 was refused. 104 W.C.B. (2d) 996. Evidence CONSCIOUSNESS OF GUILT Judge made distinction between finding of fabrication and mere disbelief of statement Accused convicted of murder for shooting driver of truck in hijacking. Accused being commercial truck driver, body of circumstantial evidence tracing movements of accused, deceased suggesting accused was killer. Accused giving exculpatory statement denying any role in homicide. Trial judge instructing jurors on difference between disbelief of accused's statement, finding it was fabricated. Defence counsel not objecting to charge. Accused's appeal from conviction dismissed. Trial judge did not err in instructions to jury on use of accused's exculpatory statement. Judge made clear important distinction between finding of fabrication, and mere disbelief of statement. Circumstances in which statement was made would have given jurors basis to make finding of fabrication. R. v. Cyr (Dec. 27, 2012, Ont. C.A., Watt, Weiler and Epstein JJ.A., File No. CA C51817) 104 W.C.B. (2d) 1033. Assault COMMON ASSAULT Aider must provide actual assistance which was not proven Two accused were charged with assault and intimidation of jus- tice system participant. One accused admitted assault of person in bathroom who had ratted out mutual friend but claimed to be sick which was reason he entered bathroom. Other accused stood by door and told people to get out while assault was taking place. Complainant was informant and accused knew of that fact. First accused guilty of assault only. Crown failed to prove that assault was to instill fear in complainant as it was plausible that assault took place simply because accused angry over betrayal over mutual friend. Second accused was not guilty of assault as there was no proof he actively assisted in assault. Second accused may have intended others to stay out of bathroom but it was not clear beyond doubt that it was to allow assault to take place. It was not enough that what aider did or failed to do had effect of helping another person commit offence as aider must provide actual assistance which was not proven. R. v. Treleaven (Sept. 12, 2012, Ont. S.C.J., Shaw J., File No. CR-11-00145) 104 W.C.B. (2d) 1003. Fraud PROOF OF OFFENCE Accused grossly overcharged complainant and cheated her out of bulk of life savings Trial of accused on charges of fraud over $5,000 and theft over $5,000. Both charges related to renovation work performed by accused's company on complainant's home. Complainant agreed to pay company $322,927 for work listed in three contracts entered into in August and September 2008 between them and she paid $301,900. Court allowed Crown to adduce at trial evidence given by complainant and another Crown witness at preliminary inquiry because they were both too ill to testify. Complainant was 76 years old in 2008 and she lived alone in home that she owned for almost 30 years. She suffered from bipolar disorder, as result of which her financial advisor restricted her from withdrawing more than $1,000 per month from her savings account. Complainant entered into contracts after she met with accused in response to company's advertising flyer. In November 2008 complainant's mental health deteriorated, she was admitted to hospital psychiatric department on Nov. 20, 2008 and she never returned to her home. Accused left note on complainant's refrigerator that because of her health all work would cease on Nov. 20, 2008. No work was completed and no money was refunded to complainant. Accused convicted of both offences. Regarding fraud charge accused deprived complainant of money whose value was more than $5,000. Crown did not prove that accused intended to persuade complainant to pay for work that she did not need. However, value of work

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