Law Times

Page 14 April 22, 2013 Law Times • CASELAW unacceptable. However, real issue was whether they rose to magnitude of particularly serious crime. Delegate relied on behaviour for which applicant was never convicted as basis for danger opinion. Delegate's decision was defective and unreasonable and ought to be quashed. Delegate erred in assuming that applicant's convictions were of such gravity as to amount to particularly serious crimes. Delegate also breached duty of procedural fairness to applicant by failing to give notice of intention to consider applicant's most recent criminal convictions and by failing to give applicant opportunity to respond. Relevant inquiry for purposes of risk analysis was whether applicant would personally face risk to life, liberty or security and delegate failed to perform required analysis. Padilla v. Canada (Minister of Citizenship and Immigration) (Mar. 7, 2013, F.C., de Montigny J., File No. IMM-1545-12) 223 A.C.W.S. (3d) 1005. which she would be prosecuted and punished did not constitute fair and independent judicial determination and thus, state protection would not be afforded to her. Board concluded that if applicant were to be arrested upon return to United States, prosecution that would result would not amount to persecution as she would be in no different position than any other member of military charged with absence without leave and/or desertion. Board also found that military justice system of United States was adequate. Application dismissed. Member's determination that applicant would find herself in same situation as others who, like her, had gone AWOL and that any sentence imposed would not amount to persecution was not unreasonable on evidence. Smith v. Canada (Minister of Citizenship and Immigration) (Nov. 2, 2012, F.C., Mosley J., File No. IMM-5699-11) 223 A.C.W.S. (3d) 1015. REFUGEE STATUS Applicant would be in no different position than any other member of military charged with desertion Application for judicial review of denial of refugee claim. Applicant, aged 23, was an American citizen who was a member of United States Army and lesbian who alleged fear of threat of physical harm from her peers and superiors in Army because of her sexual orientation. In October 2006, at age of 18, applicant was recruited into United States Army as mechanic. Applicant alleged that during advanced training and following posting to her unit she was harassed, mentally and physically abused, and threatened. After she was seen holding hands with another woman off-base, applicant says that she received threatening notes (over 100 in five months). Applicant alleged that she tried to be discharged by telling her superiors about her sexual orientation, but to no avail. When her superiors became aware of situation, she says they started treating her harshly and giving her assignments that were incompatible with her physical abilities. Applicant alleged that fearing that her life was in danger, she fled from the base with another soldier. After she left base she says she received text message saying she should be killed by firing squad for having deserted. Applicant entered Canada and filed her refugee claim. Claim was denied by Refugee Protection Division ("board") in February 2009 on grounds that applicant had not established serious risk of persecution or rebutted presumption of state protection. Application for judicial review was allowed and following redetermination, board rejected claim. Applicant contended that if she returned to United States, she would be court-martialed, would not be given fair trial and would be punished for trying to leave environment where her life was in danger. She says that process by Labour Relations REMEDIES Prosecutorial discretion reviewable only in exceptional cases Motion by respondents to strike out notice of application and dismiss application for judicial review. Applicant and two other unions filed complaint with Human Resources and Skills Development Canada alleging respondent airline in violation of certain provisions of Canada Labour Code and Canada Occupational Health and Safety Regulations concerning workplace violence. Health and Safety Officer conducted investigation and found no violations. Union filed application for judicial review seeking order for mandamus requiring respondent Minister of Labour to issue direction for airline to terminate violations, for order for mandamus requiring Minister to prosecute matter, or allow union to prosecute matter, and for order requiring Minister to apply for court order enjoining airline from further violations. Respondents agreed decision subject to judicial review, but brought within motion on ground mandamus not available at law in circumstances. Order accordingly. Mandamus not available to order exercise of discretion in particular way, for example to issue certain direction. As stated in decision dated June 7, 2012, by Rennie J. in CUPE v. Canada (Minister of Labour), mandamus not available as matter of law to compel Minister or delegate to prosecute alleged violation of Code. Prosecutorial discretion reviewable only in exceptional cases, such as where improper motive or bad faith alleged or where failure to prosecute would shock conscience of community or bring administration of justice into disrepute, none of which applied here. No evidence of policy of non-enforcement or consistent pattern or practice amounting to policy decision not to investigate or prosecute. Decision whether to prosecute rested with Director of Public Prosecution, not Minister, in any event. To compel prosecution where investigation by proper body had revealed no grounds would render investigator's role meaningless and could result in prosecutions with no chance of success. As for application for order requiring Minister to commence injunction proceeding, issue not justiciable and criteria for mandamus not met. Appropriate remedy for union dissatisfied with result of investigation to apply for certiorari to review reasonableness of decision. Portion of application seeking mandamus dismissed without prejudice to judicial review seeking certiorari. CUPE, Air Canada Component v. Canada (Minister of Labour) (Dec. 17, 2012, F.C., Kane J., File No. T-503-12) 223 A.C.W.S. (3d) 1037. ONTARIO CRIMINAL CASES Appeal SENTENCE APPEAL Loss of potential remedy against deportation order not mitigating factor on sentence Accused appealed his sentence of five years imposed after he was convicted of sexual assault, sexual interference, invitation to sexual touching, and sexual exploitation, all perpetuated upon his underage niece. Offences occurred while complainant was six to 15 years old, and advanced from sexual touching to sexual intercourse. Accused was 42 years old at sentence with no prior criminal record. Accused did not take issue with quantum of punishment, but only wished Court reconstitute sentence into series of shorter consecutive sentences, not exceeding two years, so that he, as permanent resident, could appeal his deportation on immigration matters. Trial judge may have been aware of accused's permanent resident status, but she did not consider its implications in her sentencing analysis. Leave to appeal granted; appeal dismissed. Loss of potential remedy against deportation order is not mitigating factor on sentence, nor could sentencing process be used to circumvent provisions and policies of Immigration and Refugee Protection Act. Accused's suggested approach was simply not available even if totality of sentence was not disturbed because appropriate sentence for either sexual assault or sexual exploitation in case could not reasonably be less than five years imprisonment; sentence of two years less a day for either of those counts would have been patently inadequate or artificial. R. v. B. (R.) (Jan. 23, 2013, Ont. C.A., LaForme, Laskin and Hoy JJ.A., File No. CA C52908) Decision at 2009 CarswellOnt 9791 was affirmed. 104 W.C.B. (2d) 1321. www.lawtimesnews.com Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Seizure of keys from accused valid exercise of power of search incident to arrest Accused, charged with producing marijuana and possessing same substance for purpose of trafficking, applied for stay of proceedings or exclusion of evidence. Accused was arrested subsequent execution of search warrants on his home and two industrial units when he returned with his family to his residence while police were searching it. Police used keys found on accused to open industrial units where large 10,000 plus plant marijuana grow operations were found. Crown conceded that marijuana and oxycondone found in accused's vehicle were found in violation of his Charter rights. Application dismissed. About 30 minutes before arrest, arresting officer saw three signed search warrants and, based on those presumptively valid court orders, formed reasonable belief that accused had committed offence of producing marijuana. Before making arrest, officer searched main floor office in residence and found bills for place he believed contained marijuana grow lab. During pre-execution briefing, officer learned that target, accused, lived in house with his wife and child before accused entered home, officer did not hear doorbell or sound of knocking on door; when he heard noise, he looked over and saw accused at front door with woman and child. Seizure of keys from accused's pocket was valid exercise of power of search incident to arrest. R. v. Farrugia (Sep. 7, 2012, Ont. C.J., Kelly J., File No. 11-2516) 104 W.C.B. (2d) 1251. Police REPORTS TO POLICE COMPLAINT BUREAU Evidence of investigator not relevant to hearing of application for judicial review Motion to quash summons to witness and for declaration witness not required to bring requested documents to examination. After allegations resulting in injuries to person in custody, Special Investigations Unit laid charges of assault bodily harm against two police officers. Toronto Police Service carried out internal investigation to determine whether conduct of officers warranted disciplinary charges. Chief of Police caused discipline charges to be laid alleging misconduct. At request of Crown prosecuting criminal charges, disciplinary hearing adjourned pending completion of criminal trial. Officers did not attend for interview and were served summonses. In application for judicial review officers sought order quashing summonses. Officers attempted to have investigator and counsel attend for cross-examination bring entire investigation file. Motion grant- ed. Allowing officer to question investigator and review entire investigative file would be abuse of process as it would allow officers access to evidence already gathered by Director before they were interviewed. Evidence of investigator or contents of Director's file not relevant or necessary to hearing of application for judicial review. Ramos v. Independent Police Review Director (Dec. 24, 2012, Ont. S.C.J. (Div. Ct.), Kiteley J., File No. 426/12) 104 W.C.B. (2d) 1284. Professions BARRISTERS AND SOLICITORS Removal of lawyer required due to involvement in factual presentation of defence Accused retaining lawyer to represent him on charge of seconddegree murder. Deceased being homeless man using crutches, beaten to death. Defence applying to raise alternate suspect, proffering will say of statement of witness to lawyer purporting to witness another kill deceased, throw away crutches. Witness giving statement to police under oath, altering crucial details on timing of observations away from time of death. Lawyer contacting police after discovering crutches at site other than location of deceased's body, asking police to seize evidence. Defence indicating it would call witness, evidence of discovery of crutches as defence. Crown applying to have lawyer removed as counsel of record due to likelihood he would be required to testify. Crown's application allowed, lawyer removed as counsel. Circumstances made it likely lawyer would be required to testify as was only witness to statement given by purported eyewitness. Fact that defence still intended to call witness suggested evidence would differ from police statement. Crown indicating would pursue theory physical evidence planted, making likely lawyer would testify for defence to explain discovery. Appearance of justice required removal of lawyer due to involvement in factual presentation of defence. R. v. Downey (Jan. 11, 2013, Ont. S.C.J., Clark J., File No. 1110000752/0000) 104 W.C.B. (2d) 1286. Release from Custody JUDICIAL INTERIM RELEASE Delay in bail hearing would not affect fairness of trial Application by accused for stay of proceedings because he claimed that his rights under Charter were violated. Basis of application was delay in completing accused's bail hearing in timely manner. On April 8, 2011 accused was arrested and he was charged with nine firearms offences. At that time accused was subject to weapons prohibition and he had criminal record that included prior conviction for possession

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