Law Times

Law Times • June 24, 2013 alleged that she fled Ethiopia because of her ex-husband's political involvement. Applicant and current husband also submitted attestation documents from Office of National D'Assistance Aux Refugies et Sinistres ("ONARS"), which verified refugee status. Applicant and her spouse had been given notice by officer during interview about concerns that officer had about authenticity of ONARS Attestations. After interview and before post-interview observations were recorded in CAIPS notes, officer received communication from ONARS about applicant. Communication was never provided to applicant, nor was she given opportunity to respond. Applicant learned that ONARS had confirmed officer's concerns when she received copy of certified tribunal record. Application granted. It was unclear from record what kind of communication officer had from ONARS and how ONARS was able to confirm that Attestations were not valid. Entries in CAIPS notes made it impossible to discern what case applicant had to make, particularly given that she was not even made aware of this new evidence. Officer received evidence from ONARS that was used in part to deny applicant's claim, which applicant had not had opportunity to respond to. Duty of fairness was breached by non-disclosure of extrinsic evidence and absence of opportunity to respond. Amin v. Canada (Minister of Citizenship and Immigration) (Feb. 28, 2013, F.C., John A. O'Keefe J., File No. IMM-6115-12) 226 A.C.W.S. (3d) 554. VISITORS Officer had duty to convoke interview to address concerns Application for judicial review of decision of visa officer refusing application for study permit. Applicant, aged 34, was citizen of Ukraine. Applicant applied for study permit to attend S. Institute in Alberta and was accepted into program, first to study English, and then to study film and video production to enhance his skills as filmmaker in Ukraine. Applicant submitted documents to show that he would live with his sister and brother-in-law who were well established in Calgary. Applicant provided statement from Canadian bank with balance of $20,000 to cover his tuition and related expenses. He indicated that his wife would continue to work and reside in Ukraine with their child while he studied in Canada and that he had film business in Ukraine. Applicant had been denied visitor's visas and study permits since 2003, due to his propensity for fraud and misrepresentation. Officer was not satisfied that applicant would leave Canada at end of his stay, due to purpose of visit and applicant's current employment situation. Applicant contended that officer denied applicant procedural fairness by not providing opportunity for applicant to address officer's concerns Page 13 CASELAW about his credibility. Application granted. Given officer's concerns about applicant's credibility officer had duty to convoke interview, whether in person or by other means, to explore his concerns about applicant's credibility and to provide opportunity for applicant to respond. Maklakov v. Canada (Minister of Citizenship and Immigration) (Mar. 7, 2013, F.C., Catherine M. Kane J., File No. IMM-3998-12) 226 A.C.W.S. (3d) 556. SUPREME COURT OF CANADA Appeal FRESH EVIDENCE Defence counsel at trial performed competently Accused charged with incest and sexual assault. Accused's 15-yearold daughter testified that accused came into her bedroom at 4:00 a.m. after night of drinking and engaged in cunnilingus and sexual intercourse. Accused testified that on night in question he returned home and passed out on kitchen floor and denied any sexual activity with his daughter. Theory of defence was that complainant invented allegations out of anger that accused and his new wife refused her request to move in with them. Trial judge accepted complainant's evidence and convicted accused. Accused on appeal alleged that his trial counsel was ineffective and tendered fresh evidence affidavits from witnesses who were not called at trial. Some witnesses offered evidence of complainant's anger at accused for not allowing her to move in to his house and others gave evidence to contradict accusations made in complainant's police statement that accused sexually assaulted her on one other date. Majority of Court of Appeal allowed appeal from convictions and ordered new trial. Appeal allowed and convictions restored. Defence counsel at trial performed competently. Proposed fresh evidence could not reasonably be expected to have affected the result at trial. R. v. M. (G.) (Apr. 25, 2013, S.C.C., McLachlin C.J.C., Fish J., Abella J., Moldaver J., and Karakatsanis J., File No. 34952) Decision at 103 W.C.B. (2d) 11 was reversed. 106 W.C.B. (2d) 266. Parties CHARGE TO JURY Response to question about partial liability incomplete and confusing Accused charged with two counts of first degree murder. Accused and accomplice carried out home invasion robbery in which two elderly victims were bludgeoned. Accused and accomplice each testified that the other killed the victims contrary to their original plan. Court of Appeal dismissing accused's appeal from convictions. Appeal allowed and new trial ordered. Trial judge's response to question about party liability was incomplete and confusing. R. c. Lévesque (Apr. 16, 2013, S.C.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Karakatsanis J., File No. 34417) 106 W.C.B. (2d) 328. ONTARIO CRIMINAL CASES Appeal GROUNDS No evidence to support finding that witness involved in murder Appeal by accused from his conviction for murdering his wife. Identity was central issue at trial for whoever killed victim was guilty of murder. Crown's case was circumstantial. Accused testified and he denied that he had anything to do with wife's death. Primary ground of appeal arose out of trial judge's refusal to allow accused's counsel to put to accused, on his re-examination, extract from statement that accused gave to police. Counsel had resisted admissibility of that statement and any evidence derived from it throughout trial, which included accused's cross-examination. After cross-examination was over counsel changed his position and he argued that extract was admissible. Judge held that statement was neither consistent with accused's trial testimony, nor properly offered to rebut allegation of recent fabrication. Other ground of appeal arose from evidence of Crown witness. Witness was coworker of accused and his wife and he had affair with wife at time of her death. Accused claimed judge wrongly instructed jury that there was no evidence that witness was involved in murder and she improperly prohibited cross-examination of witness to show his possible connection to homicide. Appeal dismissed. There was no allegation of recent fabrication explicit or implicit in cross-examination of accused so as to permit counsel to adduce prior consistent statement on re-examination. Trial record did not support admissibility of statement. Other ground was rejected for there was no evidence that could support finding that witness was involved in murder. Judge did not improperly prohibit cross-examination of witness but she properly took steps to prevent jury from speculating about witness's possible involvement in murder. R. v. Kailayapillai (Apr. 22, 2013, Ont. C.A., Doherty J.A., Alexandra Hoy J.A., and S.E. Pepall J.A., File No. CA C51102) 106 W.C.B. (2d) 270. Accused's condition did not prevent her from providing suitable sample Appeal by accused from her conviction for refusing to comply with demand to provide breath sample for approved screening device. Police officer saw accused drive away from plaza that contained bar. He stopped her and he decided to demand www.lawtimesnews.com sample because, even though accused claimed she had nothing to drink, he smelled alcohol on her breath. Officer gave accused 16 opportunities to provide sample and he also performed four demonstrations to show how to properly provide sample into device. He also warned accused three times as to consequences of not providing proper sample. Officer testified that accused did not exhibit any breathing or health issues. Accused claimed that she suffered from asthma and it acted up when she was under stress. Her doctor testified that accused had history of asthma but it was relatively mild, in that she did not need to consistently use puffers, and he also testified that asthma patients became symptomatic with stress. Appeal dismissed. Accused was not convicted on charge she was not charged with. There was evidence that officer formed opinion that accused refused to provide proper breath sample. Trial judge did not make palpable and overriding errors regarding findings of fact. It was open to him to find that accused deliberately failed to provide suitable sample. Judge provided sufficient reasons for his decision. He was entitled to find that accused's condition did not prevent her from providing suitable sample. R. v. Mongru (Apr. 16, 2013, Ont. S.C.J., Fragomeni J., File No. SCA 2218/12) 106 W.C.B. (2d) 268. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Sufficient guns and ammunition to start small war in storage locker Accused, arrested for possession of firearm on searched incidental to that arrest, applied for exclusion of evidence. Arrest occurred after stash of 10 guns, 4,746 rounds of live ammunition, and drugs, including over kilo and half of ecstasy pills, was fortuitously discovered by employees of storage facility. Storage facilities were being renovated and discovery was made by staff when they moved contents of rented storage locker leased to accused's girlfriend. Pursuant that evidence, girlfriend's residence was also searched after accused's arrest. Included on ring found in accused's pant pocket was key to door of apartment and key to padlock, which was subsequently found to be match for padlock on locker at storage facility where stash of guns, ammunition and drugs were located. Accused was included as person of interest in storage locker investigation due to prior association with girlfriend, coupled with his criminal record involving guns, drugs and robberies. Police were observing girlfriend's apartment and decided both were to be arrested after seeing them leave that apartment hand in hand, and witnessed them kiss. Officer arresting accused initiated it by tackling him because he feared accused could be armed. Application dismissed. Nobody contested arresting officer believed he had reasonable grounds to arrest and believed there was substantial possibility accused would be armed. Presence of accused at scene hand in hand with co accused, knowing his criminal history, added considerable weight to reasonableness of belief that gun would be located in apartment. Female coaccused, aged 23, had no criminal record. There were sufficient guns and ammunition to start small war in storage locker. Police had reason to suspect female accused had not acted alone. Court would not have excluded if it found breach. Evidence was absolutely essential to Crown's case and any breach made in good faith. R. v. Browne (Apr. 16, 2013, Ont. S.C.J., J. Wilson J., File No. CR1210000480) 106 W.C.B. (2d) 283. RIGHT TO COUNSEL Officer's further questions patently investigatory Accused youth appealed his convictions for break and enter, possession of marijuana for purpose of trafficking, and theft under $5,000. Accused, then 16 years old, was taken by police to police station to investigate his involvement in theft of two motor vehicles. Police advised accused of his rights and he agreed to make videotaped statement in which admitted his role in theft of vehicles and also implicated himself in commission of two other serious criminal offences; focus of appeal was admission of statement he made at the police station. Accused was sole occupant and driver of one of two vehicles pulled over by police. He initially claimed vehicle was his mother's but later admitted he had stolen it. Accused was arrested, read Charter right to counsel caution and young person. Before interview officer advised accused of his right to counsel, his right to consult parent or other adult, his right to say nothing, and his right to have parent present when making statement. Accused confirmed that he understood all of this, that he did not want his mother, who had arrived at police station, present during interview, and that he wanted to make statement. Most of interview focused on two stolen cars. Accused admitted his role in stealing both cars. Near end of interview, officer started to ask questions about contents of stolen cars. As those questions progressed, accused admitted that he had broken into private home, stolen marijuana from freezer, and intended to sell it. Accused contended that when interview shifted from stolen vehicles to new terrain of break and enter at private dwelling and theft of marijuana, accused's jeopardy increased, both quantitatively (more potential criminal charges) and qualitatively (more serious charges) and officer was required to re-advise him of his rights. Appeal allowed; new trial ordered on break and enter and possess marijuana for purpose; interview portions dealing with

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