Law Times

Page 14 January 27, 2014 Law Times • 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. FEDERAL COURT OF APPEAL ONTARIO CRIMINAL DECISIONS Immigration Appeal INADMISSIBLE AND REMOVABLE CLASSES Causal link between national security and refusal to issue passport to applicant Applicant was born in Algeria in 1960 and immigrated to Canada in 1987, becoming Canadian citizen in 1993. In May 1999, applicant was arrested in Jordan and extradited to France, where he was convicted on terrorism charges. After serving half of his eight-year prison sentence accused was released and returned to Canada in January 2005. In June 2005, applicant applied for new passport, which was refused by Minister under s. 10.1 of Canadian Passport Order. Applicant brought application for judicial review of decision of Minister, which was allowed in part. Minister successfully appealed to Federal Court of Appeal and leave to appeal to Supreme Court of Canada was refused. Applicant filed second passport application, which was refused. Applicant unsuccessfully brought another application for judicial review. Applicant appealed. Appeal dismissed. It could not be concluded that Ministerial decision did not meet criteria of necessity. There was causal link between national security and Minister's refusal to issue passport to applicant, who was sentenced in France for crimes closely connected with terrorism, including falsification of passports. Kamel v. Canada (Attorney General) (Apr. 16, 2013, F.C.A., Pierre Blais C.J., J.D. Denis Pelletier J.A., and Johanne Trudel J.A., File No. A-377-11) Decision at 207 A.C.W.S. (3d) 633 was affirmed. 233 A.C.W.S. (3d) 710. GENERAL Appellate court could not tell if judge rejected evidence or even considered it Accused appealed his conviction of trafficking in which officer observed him engaged in drug transaction with another individual. Police arrest other individual and trial judge did not address that individual's exculpatory evidence that he acquired substance in his possession on arrest, from another source prior to his encounter with accused. Appeal allowed, new trial ordered. Court noted this was not case of complainant telling one story and accused telling opposite story where express acceptance of complainant's evidence coupled with verdict may be enough that trial judge did not need to directly address accused's evidence. Evidence from individual could have exonerated accused and appellate court could not tell if judge rejected that evidence or even considered it. R. v. Weckwerth (Oct. 30, 2013, Ont. C.A., S.T. Goudge J.A., E.A. Cronk J.A., and S.E. Pepall J.A., File No. CA C56534) 110 W.C.B. (2d) 125. Assault COMMON ASSAULT Error to suggest voluntary absence could defeat public interest in domestic abuse case Crown appealed acquittal of accused for domestic assault on grounds that trial judge erred in failing to act judicially in refusing to grant material witness application and in refusing to adjourn trial. Accused was charged with assaulting his wife These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. who refused to show up for trial and trial judge expressed concerns of delay. Appeal allowed, new trial ordered. It was error to suggest that voluntary absence could defeat public interest in trial on merits in domestic abuse case as it would send wrong message that domestic assaults were not as serious as others and failure of reluctant witness to attend would result in acquittal. Trial judge's concerns regarding s. 11(b) issues were misplaced as whether failure of Crown witness to attend contributed to systemic or Crown delay would have to be litigated. There was no suggestion Crown was not diligent in attempting to have witness attend and since there was no evidence witness had left jurisdiction or was unable to attend on later date, only issue was whether she was material which was obvious in this case. R. v. Khasria (Nov. 4, 2013, Ont. S.C.J., Durno J., File No. Milton 199/2012) 110 W.C.B. (2d) 136. to accused. Trial judge held that no grounds existed to believe that ownership documentation would have been found in residence and that warrant did not authorize search of electronic devices. Evidence found on computer and telephone excluded and accused acquitted. Court of Appeal overturned acquittals and ordered new trial. Appeal dismissed. Warrant properly authorized search for ownership documents. Warrant did not authorize searches of computers or phones. Specific pre-authorization is required for computer searches. Trial judge erred by excluding evidence found on computer telephone. Evidence was reliable and infringing conduct of police was not serious. R. v. Vu (Nov. 7, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34687) Decision at 99 W.C.B. (2d) 716 was affirmed. 110 W.C.B. (2d) 109. SUPREME COURT OF CANADA Evidence Charter of Rights ENFORCEMENT OF RIGHTS Trial judge erred by excluding evidence found on computer telephone Accused charged with production of marihuana and possession of marihuana for purpose of trafficking. Police obtained warrant to search residence based on evidence that large amount of electricity was being stolen. Warrant authorized search for "documentation" of ownership or occupancy of residence. Police discovered marihuana grow operation. Police searched computers and cellular telephone and found evidence connected IDENTITY OF ACCUSED Evidence not so decisive as to allow immediate disposition in form of acquittal Victim was shot and killed in nightclub and his brother was shot and wounded. Accused and another convicted of first degree murder and attempted murder. Crown's theory was that accused shaved his head upon returning home from shootings to change his appearance. Accused's application to adduce fresh evidence of experts who conducted forensic examination of hair clippings to determine whether they could have been hair from accused's scalp granted. Fresh evidence was directly relevant to whether accused was shooter. Appropriate remedy was new trial. Expert evidence could reasonably be expected to have affected verdict but was not so decisive as to allow immediate disposition in form of acquittal. R. v. Hay (Nov. 8, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., and Wagner J., File No. 33536) 110 W.C.B. (2d) 96. FEDERAL COURT Administrative Law JUDICIAL REVIEW Applicant might be prone to commit act that unlawfully interfered with civil aviation Applicant obtained security clearance at Edmonton International Airport in 2006. On January 25, 2007, applicant and another airport employee were apprehended smoking marijuana in applicant's car. Applicant was charged for possession of marijuana, but charge was withdrawn. In 2008, applicant began working for airline as baggage handler. In early 2009, applicant was charged with possession of controlled substance for purpose of trafficking and possession of proceeds of crime. Applicant pled guilty to lesser offence of possession of controlled substance and received conditional discharge with 12 months' probation. Applicant retained his security clearance and continued to work for airline. In 2011, his application to renew his security clearance was denied. Following review by Transportation Security Clearance Advisory Body, applicant's security clearance was cancelled. Applicant sought judicial review of decision. Application dismissed. Decision to cancel security clearance was reasonable in light of evidence submitted and applicable standard of proof. Although first charge against applicant had been withdrawn and he had received conditional dis- Looking for legal expertise? Find exactly what you need at www.CanadianLawList.com yu and it's available to yo 24 hours a day. Untitled-4 1 Starting a business, making a will or buying a house? Declaring bankruptcy, dealing with a personal injury, insurance claim or job loss? If you're in the midst of one of life's big events, help is as close as your smartphone, tablet or computer. Simply go to www.CanadianLawList.com to find the right lawyer for your particular legal need. www.CanadianLawList.com is Canada's most comprehensive online directory of lawyers and law firms. And it's easy to use! You can search by city, legal specialty, or name for listings and contact information. Find the legal expertise you need at www.CanadianLawList.com. www.lawtimesnews.com 13-12-19 3:08 PM

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