Law Times

Law Times • January 26, 2015 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Charter of Rights ENFORCEMENT OF RIGHTS Tenuous cause connection between breach and confession undermined significance of relationship Evidence obtained in manner vi- olating Charter. Accused charged with first degree murder. Accused confessed to undercover police officers that he killed deceased and burned his body. During undercover operation police ob- tained wiretap authorization and intercepted accused's phone calls. At trial Crown conceded that in- terceptions violated accused's s. 8 right. Accused sought to exclude confessions on basis that under- cover operation was closely linked to s. 8 breach. Trial judge found that confessions were not ob- tained in manner violating Char- ter. Court of Appeal dismissed accused's appeal from conviction. Appeal dismissed. Tenuous caus- al connection between breach and confessions undermined significance of their temporal re- lationship. R. v. Mack (Sep. 26, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Cromwell J., Moldaver J., Kara- katsanis J., and Wagner J., File No. 35093) Decision at 99 W.C.B. (2d) 863 was affirmed. 116 W.C.B. (2d) 461. FEDERAL COURT Administrative Law REMEDIES Fact that passports issued to applicant not determinative of citizenship Applicant was born in Canada in October 1989 to parents who had come to Canada in 1985 to work as domestic helpers to In- dian High Commissioner to Canada. Parents' employment with High Commission termi- nated in 1989 but exact date was unclear. Applicant had Ontario birth certificate and had been is- sued two Canadian passports on strength of Ontario birth certifi- cate. In December 2010 applicant was sentenced to three years in prison for weapons trafficking and cocaine importation. While in prison, Citizenship and Immi- gration Canada determined that despite his Canadian passport, applicant had never been Cana- dian citizen. Admissibility report was prepared and applicant was declared inadmissible on basis of serious criminality pursuant to s. 4 of Immigration and Refugee Protection Act (Can.). IRB Mem- ber was not satisfied that appli- cant was Canadian citizen and issued deportation order against him. Decision was upheld on ju- dicial review. Applicant applied for declaration of citizenship. Is- sue whether foreign national's parents were on applicant's birth- date of Oct. 17, 1989, employees in service of diplomatic officer in accordance with s 3(2)(b) of Citizenship Act (Can.). Applica- tion dismissed. This declaration proceeding was collateral attack on IRB decision and "end run" on decision on judicial review. Issue of citizenship was central to those decisions, facts pleaded were same and evidence tendered was simi- lar to this declaration proceed- ing. Issue of citizenship was dealt with and court ought not to revisit matter under subsequent but par- allel proceeding. Evidence did not justify relief sought as applicant's case was significantly under- mined by documentary evidence and internal inconsistency which indicated parents worked at High Commission until December 1989 and included applicant on their permanent residence appli- cation in 1992, which would have been inconsistent with applicant having citizenship status. Fact that passports had been issued to applicant not determinative of citizenship. Budlakoti v. Canada (Minister of Citizenship and Immigration) (Sep. 9, 2014, F.C., Michael L. Phelan J., File No. T-1564-13) 245 A.C.W.S. (3d) 772. Immigration OFFENCES Citizen tried to use fake passport to aid his sister in entering Canada illegally Canadian citizen originally from Sri Lanka was employed as f light attendant. Citizen's sister in Sri Lanka called citizen saying that she was running from police there and needed his help. Citizen f lew to Malaysia where he learned sis- ter had fake Canadian passport. Citizen met sister in Laos and f lew with her to Tokyo. When sister attempted to get boarding pass in Tokyo to f ly to Canada, ticket agent reported suspicious passport to officials and passport was confirmed to be fake. Sister was deported from Japan to Sri Lanka. Director of Investiga- tions Division Passport Integrity Branch found that citizen com- mitted indictable offence outside of Canada by facilitating or aiding entry of his sister without proper documentation. Director revoked citizen's passport for three year period pursuant to s. 10(2)(b) of Canadian Passport Order. Direc- tor did not identify exact section number in reasons but did state what offence was and facts used when Director found citizen had committed offence. Citizen ap- plied for judicial review, contend- ing that decision was not reason- able as reasons were vague and specific offence that he was found to have committed was not identi- fied by section number in reasons and as result until judicial review he did not know exact offence that he was found to have committed. Application dismissed. There was no breach of principles of natural justice as citizen was given op- portunity to respond to all facts gathered in investigation, and he did respond. Director considered citizen's submissions before deci- sion was made. There was no dis- agreement citizen tried to use fake passport to aid his sister in enter- ing Canada illegally. It would have been preferable if actual number of section had been used by Di- rector but it was not fatal in this case. De Hoedt v. Canada (Minister of Citizenship and Immigration) (Aug. 29, 2014, F.C., Glennys L. McVeigh J., File No. T-1859-13) 245 A.C.W.S. (3d) 911. SELECTION AND ADMISSION Officer did not apply correct legal test and that was reviewable error Best interests of child. Foreign nationals were family of Roma citizens of Slovakia. Foreign na- tionals had made unsuccessful refugee claim and filed applica- tion for visa exemption on hu- manitarian and compassionate (H&C) grounds. Seventeen year old son was at severe end of au- tism spectrum, had severe devel- opmental disability and also had kidney disease. Son received care and services at school serving students with developmental dis- abilities and through Nephrology Clinic at Toronto hospital. Officer found that there was insufficient evidence to demonstrate that ser- vices available to son in Slovakia were so inadequate in comparison to those that he received in Cana- da that it might be against his best interests to return to Slovakia. Of- ficer found that foreign nationals would not experience unusual and undeserved or dispropor- tionate hardship if they were re- quired to return to Slovakia to ap- ply for permanent residence from abroad. Officer rejected H&C application and foreign nationals applied for judicial review. For- eign nationals contended that of- ficer failed to consider impact that uprooting and moving son would have on him, did not consider discrimination that son faced as Roma child with severe disability and did not consider vast differ- ence in care that son received in Slovakia and in Canada. Foreign nationals contended that officer applied wrong test when he con- sidered whether health and edu- cational services in Slovakia were adequate and whether son would suffer any hardship instead of considering what would be in his best interest. Application grant- ed. Officer was not tasked with evaluating whether son's basic needs would be met in Slovakia, but rather with evaluating what would be in his best interest. Of- ficer did not apply correct legal test and that was reviewable er- ror. Officer recognized that there was discrimination against Roma but minimized discrimination experienced by foreign nationals because they were able to access services, without considering dis- crimination they suffered while accessing these services, includ- ing in education and health care. This was unreasonable. It was reviewable error to dismiss H&C application on basis that poten- tial hardship of family, including child whose best interest was to remain in Canada, was similar to hardship experienced by others in their home country. Mitigat- ing factors including finding that there was insufficient evidence that son's medical, educational and social needs could not be met upon return to Slovakia, were unreasonably applied to circum- stances of case. Conka v. Canada (Minister of Citi- zenship and Immigration) (Oct. 16, 2014, F.C., Luc Martineau J., File No. IMM-3593-13) 245 A.C.W.S. (3d) 919. 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. Contact $BSTXFMM.FEJB4BMFT@thomsonreuters.com for details. RECRUITING? POST YOUR POSITION ON GREAT RATES. GREAT REACH. GREAT RESULTS. Untitled-6 1 14-06-17 2:09 PM

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