Law Times

Law Times • February 10, 2014 Page 15 www.lawtimesnews.com FEDERAL COURT OF APPEAL Administrative Law DUT Y TO ACT FAIRLY No legitimate expectation of oral hearing before recommendation to revoke appointment Applicant was advised that re- spondent proposed to review his appointment to order in light of criminal conviction in United States for fraud and obstruction of justice. Applicant requested in person oral hearing before respondent, but request was re- fused. Applicant asked respon- dent to reconsider decision, but it refused. Applicant applied for judicial review. Federal Court Judge found that applicant did not have legitimate expecta- tion that oral hearing would be held prior to recommendation to Governor General that ap- pointment should be revoked. Federal Court Judge found that applicant's procedural en- titlement fell toward low end of scale. Federal Court Judge dis- missed application. Applicant appealed. Appeal dismissed. In circumstances, respondent was not required to give applicant oral hearing in order to ensure that he was afforded procedural fairness. Since it was not func- tion of respondent to determine whether applicant's conviction in United States was proper, respondent's recommendation would not turn primarily on assessment of applicant's cred- ibility. Black v. Advisory Council for the Order of Canada (Nov. 18, 2013, F.C.A., John M. Evans J.A., Trudel J.A., and Webb J.A., File No. A-462-12) Decision at 222 A.C.W.S. (3d) 290 was affirmed. 234 A.C.W.S. (3d) 246. Civil Procedure COSTS If party could not legally accept offer then costs should not be imposed Taxpayer appealed assessment that denied deductions of share and cash bonuses. Appeal was allowed. Taxpayer made settle- ment offer, but Minister of Na- tional Revenue rejected offer. Taxpayer brought motion for substantial indemnity costs. Judge accepted submission that Minister was prevented from accepting settlement offer and that he did not need to provide reasons for refusal. Minister could not accept offer because of application of concept of le- gal disability. Taxpayer's motion was dismissed. Taxpayer ap- pealed. Appeal dismissed. Only offers that, as matter of law, could have been accepted could trigger costs consequences. If, due to legal disability, party could not accept offer then adverse costs consequences should not be imposed on that party. ere was no principled basis on which Minister could have accepted that cash bo- nuses were non-deductible in exchange for treating share bo- nuses as deductible. Judge cor- rectly ruled that Minister could not concede share bonus issue and that alone was sufficient to conclude that Crown could not accept settlement offer. Judge did not make reviewable error in concluding that Minister was justified in rejecting settlement offer. Judge did not err in law, fail to consider relevant factors, consider irrelevant factors or reach unreasonable conclusion. Judge exercised discretion ap- propriately. Transalta Corp. v. R. (Dec. 6, 2013, F.C.A., Pierre Blais C.J., Eleanor R. Dawson J.A., and James W. O'Reilly J.A. (ex offi- cio), File No. A-486-12) Deci- sion at 221 A.C.W.S. (3d) 797 was affirmed. 234 A.C.W.S. (3d) 288. ONTARIO CRIMINAL DECISIONS Appeal GENERAL No reference to accused's mental illness throughout all of proceedings Accused was convicted of four counts of driving motor vehi- cles without insurance, contrary to Compulsory Automobile Insurance Act (Ont.). Accused applied for extension of time in which to appeal and for leave to appeal under Provincial Of- fences Act (Ont.). Accused suf- fered from, and was being treat- ed for, serious mental illness. Judge held that accused had not learned from his previous fine, but did not notice that previ- ous conviction and fine was im- posed for offence that occurred aer offence for which accused was being sentenced, which was arguable error of law with respect to sentence. Accused's motion before provincial judge to extend time in which to ap- peal his first three convictions was dismissed. Accused applied to provincial judge to extend time in which to appeal all four of his convictions, but matter was treated as appeal on merits on fourth conviction, and ap- peal from sentence was grant- ed. Accused tried again to bring motion to extend time in which to appeal before provincial judge, having apparently been redirected to do so by court staff, but motion was dismissed for lack of jurisdiction because it had already been dismissed. Accused's fines cumulatively totalled over $20,000. Applica- tion allowed, leave to appeal granted. roughout all of pro- ceedings, there was no refer- ence to accused's mental illness or any significant reference to his ability to pay substantial fines imposed upon him. ere was important public interest in case, and there was arguable issue that related to due admin- istration of justice. Although offences were relatively serious, accused faced very significant amount of fines, surcharges, and costs that was draconian in its impact on him personally. It was in public interest to deter- mine whether some accommo- dation should have been made for individuals with significant personal disabilities. It was at least arguable that lower court did not consider appropriate factors in determining issues before it, and, perhaps more importantly, closed off any op- portunity for broader public interest issue to be raised. It was at least arguable that pro- vincial judge did not appear to take some factors into account, as accused was prevented from having appeal court consider totality of fines and surcharges. In particular circumstances of case, due administration of justice was implicated, and broader public interest issues involved were not considered. R. v. E. (A.) (Nov. 21, 2013, Ont. C.A., P. Lauwers J.A., In Cham- bers, File No. CA M41972, M41973) 110 W.C.B. (2d) 282. Charter of Rights ENFORCEMENT OF RIGHTS Fact that Crown's witness gave contradictory evidence did not amount to "flagrant impropriety" Accused individuals charged with aggravated assault and as- sault. Accused individuals ap- plied for stay of proceedings on basis that continued pros- ecution of matter by Crown amounted to abuse of process. Crown alleged that, at stag and doe, one complainant was as- saulted in unprovoked man- ner by accused individuals, while second complainant was punched in face by accused and fell to ground and lost consciousness. Accused indi- viduals argued that Crown had impeached its main witness to point that it could not ask court to accept his evidence. Accused individuals argued that Crown's continued prosecution in view of discrepancies between evidence of its own witnesses amounted to abuse of process. Accused individuals argued that continuing prosecution absent reasonable likelihood of conviction violated guidelines of Attorney General of Ontario. Application dismissed. Fact that Crown's own witness gave contradictory evidence on im- portant issues that court had to decide did not amount to "fla- grant impropriety" requiring court to interfere with Crown's discretion to continue with prosecution. Court ultimately had to consider evidence of Crown witnesses and decide how much or how little of evi- dence it would accept. It was not unreasonable for Crown to leave matters for trier of fact to sort out, and to do so did not amount to impropriety on part of Crown or abuse of Crown's prosecutorial discretion. Other witnesses to altercations were equally available to Crown and defence and court should not interfere in trial process by playing role in overseeing what witnesses Crown may or may not call in prosecution of case. Court could not conclude that continued prosecution would have shocked or violate conscience of community, or that denial of stay of proceed- ings would have jeopardized fairness of trial. Given nature of case and injuries allegedly sustained by complainant, community would have been shocked, and its faith in ad- ministration of justice shaken, if court abandoned its respon- sibility to make findings of fact on all of evidence presented, including conflicting evidence, and to adjudicate on merits of case. R. v. Rocchetta (Nov. 6, 2013, Ont. S.C.J., E. Gareau J., File No. 7336/12) 110 W.C.B. (2d) 320. Murder FIRST DEGREE MURDER Evidence could support finding of planning and deliberation Accused charged with first de- gree murder. Accused applied for directed verdict of acquittal. Accused was allegedly involved in altercation with individual inside bar, and was asked to leave. Accused and individual had words outside on sidewalk before individual walked back into bar through front doors. Accused allegedly walked over curb and spoke to man who passed him gun, then walked to area of sidewalk in front of tavern doors, pointed gun at entrance, and fired 14 shots. Ac- cused killed young woman who happened to be outside having cigarette, and was also alleged to have wounded four people. Accused argued that there was no evidence upon which prop- erly instructed jury could con- clude that essential element of planning and deliberation was established beyond reasonable doubt, as there was no time for him to formulate plan or scheme to kill individual. Ac- cused argued that, at its highest, Crown's case established spon- taneous, impulsive act. Applica- tion dismissed. ere was evi- dence which, if believed, could support finding of planning and deliberation. Based on how they viewed all other evidence, it would be open to jury to find that accused carefully thought out his plan to kill, weighed advantages and disadvantages, and quickly carried it out. It would be open to jury to find that accused formulated and considered very simple scheme before shooting. R. v. Weese (Oct. 22, 2013, Ont. S.C.J., Benotto J., File No. 10- 70000669-0000) 110 W.C.B. (2d) 348. Sentence DRUG OFFENCES Sending accused to prison would have interfered with efforts he had made to rehabilitate himself Accused received conditional sentence of two years less one day, and two years' probation, for possession of cocaine for purpose of trafficking, assault- ing police officer, and posses- sion of proceeds of crime. When officer approached accused as he was entering storage facility and asked to see accused's driv- er's licence, insurance, and own- ership, accused went back to his car, ostensibly to retrieve them. Accused removed package from his person and threw it into back seat of his car. When officer asked accused to step away from car, accused pushed officer, re- trieved bag from back seat, and ran into storage facility before ultimately being arrested aer lengthy and violent struggle. Package contained 12.69 grams of cocaine and $5,667 in Cana- dian currency. Accused was 27 years old at time of offence and had criminal record for assaults, the, escaping lawful custody, weapons offences, drug of- fences, and breach offences. Ac- cused did not come from privi- leged background, both of his parents were drug addicts, and he was raised by his grandmoth- er. Accused quit school when he was in grade 11 and had held various labourer-type jobs. Ac- cused had complied with condi- tions of his release and had not been charged with any further offences. Appropriate sentence was less than two years. Para- mount objectives of sentencing were denunciation of accused's conduct, as well as both general and specific deterrence, given accused's prior convictions and fact that he was engaged in drug business for financial gain. Ac- cused's rehabilitation could not be overlooked. Accused had gained significant insight into lifestyle choices he had made and wished to leave that lifestyle behind him. Permitting accused to serve his sentence in commu- nity would not have endangered safety of community given lengthy period of time he had been on bail without further criminal behaviour. Principle of restraint and compelling evi- dence that accused had started on path to rehabilitation by re- maining law abiding for past 51 months tipped balance in favour of conditional sentence. Ultimate interests of communi- ty and accused were best served by sentence that reduced risk of recidivism and facilitated ac- cused's rehabilitation. Sending accused to prison would have interfered with efforts he had made to rehabilitate himself, and would not ultimately have been in society's best interest. Accused would be confined to his residence under house ar- rest twenty-four hours per day, seven days per week for entirety of sentence. DNA order, lifetime weapons prohibition. R. v. Longshaw (Oct. 28, 2013, Ont. S.C.J., Corrick J., File No. CR10900005390000) 110 W.C.B. (2d) 360. LT CASELAW

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