Law Times

Page 16 SePtember 15, 2014 • Law Times www.lawtimesnews.com FEDERAL COURT Appeal GROUNDS Undisclosed documents went to pivotal issue of whether accused would have testified Accused applied for judicial re- view of decision of Minister of Justice refusing to grant rem- edy regarding two convictions for fraud imposed and upheld on appeal. Accused was lawyer who joined two of his clients in starting family restaurant franchise, and sold shares in partnership. Project began to fall apart when popular- ity of restaurant was less than expected and its revenues de- clined, limited partnership was petitioned into bankruptcy by bank, and Securities Commis- sion launched inquiry result- ing in civil action and criminal charges. Accused was convicted of two counts of concealing in- formation from investors. Ac- cused put forward as grounds for his application non-disclo- sure of significant evidence at trial, including evidence that had been available to Crown, and new evidence allegedly dis- crediting certain witness testi- mony. Two key items of undis- closed evidence were detailed admissions of guilt by accused's partners to Securities Commis- sion and pre-trial agreement struck between those partners and investors in relation to ac- tion against accused for pro- fessional malpractice. Accused and his counsel at time of trial, gave evidence in support of ap- plication that they would have conducted defence strategy very differently had this infor- mation been known to them. Accused would have testified in his own defence and counsel would have attacked credibility of witnesses more aggressively. Instead, formal counsel stated he had deliberately avoided challenging evidence of elderly investors for fear of being seen to be too harsh on victims. Ap- plication granted with costs; matter returned to Minister for reconsideration. Minister's delegate found that there was "reasonable possibility" that ac- cused would have testified in his own defence and that his counsel may have changed his approach in cross-examining investors if Settlement Agree- ments and Assignment Deal had been disclosed at trial. Minister disagreed with these conclusions but did not inter- view witnesses or read volumes of documents assembled in investigation. Question to be decided was whether accused received fair trial as result of non-disclosure, not whether outcome would have been af- fected. Witnesses, accused's partners and investors, were at heart of Crown's case on counts on which accused was con- victed. Undisclosed documents also went directly to pivotal is- sue of whether accused would have testified if he had known of them. Decision lacked jus- tification, transparency and intelligibility and did not fall within range of possible, ac- ceptable outcomes which were defensible in respect of facts and law. Ross v. Canada (Minister of Jus- tice) (Apr. 7, 2014, F.C., Richard G. Mosley J., File No. T-1790- 10) 113 W.C.B. (2d) 196. Citizenship APPEAL Strict physical presence test was principled approach to take Foreign national was citizen of United States who entered Canada in 2001, and became permanent resident on Jan. 22, 2008. In February 2010, foreign national applied for Canadian citizenship. Citizenship judge noted that foreign national declared 156 days of absences from Canada in her citizenship application, but 205 days on her Residence Questionnaire and that foreign national was physi- cally present in Canada for 958 days according to her citizen- ship application, but 909 days according to her Residence Questionnaire. Citizenship judge determined that foreign national failed to meet require- ment that she be physically present in Canada for at least 1,095 days out of four years im- mediately preceding her appli- cation for citizenship. Foreign national appealed, contending that judge ought to have con- ducted qualitative assessment of evidence submitted which showed quality of her ties to Canada and that such an as- sessment would have allowed her to meet residency require- ment, despite not satisfying physical presence test. Appeal dismissed. Based on plain and ordinary reading of Citizen- ship Act (Can.), strict physical presence test was principled ap- proach to take. Discrepancy be- tween dates cited by judge was explainable, however, in light of fact that neither absences cited on foreign national's citizen- ship application or her Resi- dence Questionnaire added up to 1,095 days of physical pres- ence in Canada, this explana- tion was irrelevant to citizen- ship judge's conclusion. Judge's decision was not unreasonable. Donohue v. Canada (Minister of Citizenship and Immigration) (Apr. 28, 2014, F.C., Michael D. Manson J., File No. T-1824-13) 240 A.C.W.S. (3d) 21. Immigration EXCLUSION AND EXPULSION Reconsideration of grounds for detention falls squarely within board's jurisdiction Review of detention order. Foreign national was citizen of United Kingdom who had been detained since January 2013 on immigration warrant. Execution of deportation or- der had been stayed pursuant to s. 50(a) of Immigration and Refugee Protection Act (Can.), pending resolution of out- standing criminal charges that were scheduled for trial in De- cember 2014. On June 14, 2013, decision was made upholding order that foreign national be detained on grounds that he constituted danger. On deten- tion review held Dec. 19, 2013, foreign national proposed that he be released on conditions including deposit and perfor- mance bonds from his fiancee, and his former guardians, to- gether with electronic moni- toring and house arrest. On issue of danger, board member held that there had been no significant changes since prior detention decisions and that all Immigration Division's con- cerns remained valid. Member found that there was no reason to depart from past decisions to continue detention, noting that once that finding is made it stands unless it is overturned by federal court. With respect to alternatives to detention that had been presented, member found that foreign national's fiancee and former guardians were unsuitable as bondsper- sons. Application granted; ap- plication remitted to Immigra- tion Division for reconsidera- tion. Member erred by finding that she had no jurisdiction to reconsider danger and appear- ance findings. Section 57 of Act requires Immigration Division to decide afresh whether con- tinued detention is warranted at each hearing. Reconsidera- tion of grounds for detention falls squarely within board's jurisdiction, and not that of Federal Court and availabil- ity of judicial review does not permit board to escape that responsibility. Member's find- ings with respect to alternatives to detention were reasonable in sense that they were justified, transparent and intelligible and within range of acceptable out- comes. Suitability of bondsper- sons was within jurisdiction and expertise of Immigration Division. It was open to mem- ber to conclude that relation- ship between foreign national and former guardians had been sporadic and that they would not be in position to supervise him effectively, and that con- cerns about misrepresentations made by fiancee had not been alleviated. It was also open to member to conclude that, in absence of suitable bondsper- son, electronic monitoring would not be sufficient alterna- tive to detention. But prior to considering those alternatives, member was required to first determine whether there were grounds for detention. Kippax v. Canada (Minister of Citizenship and Immigration) (May. 6, 2014, F.C., Richard G. Mosley J., File No. IMM-8164- 13) 240 A.C.W.S. (3d) 142. INADMISSIBLE AND REMOVABLE CLASSES Foreign national not able to participate in meaning ful way in decision-making process Foreign national was citizen of India who applied in March 2010 to come to Canada as skilled worker and asserted that he had worked since 2003 as cook at restaurant in Mum- bai owned by individual. For- eign national had no training as cook and pay stub that he submitted did not match his income tax statement. Restau- rant was phoned and employee indicated that foreign national 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. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. Lexpert DealsWire is a new way to keep abreast of the significant M&A deals that are making news right now. It will examine and analyze key developments and trends as they happen and will report on the key players as deals are announced and closed both in Canada and around the world. Sign up today for bi-weekly email alerts at www.CarswellMedia.com/newswire/Dealswire GET THE LATEST NEWS AND VIEWS ON M&A

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