Law Times

Law Times • January 17, 2011 at school by complainant and that after one punch bullying stopped. Complainant was athletic and much larger than accused although evidence revealed accused had black belt in jiu-jitsu. Accused was small for his age and had suff ered through cancer and many years of treatment. Accused not guilty. Complainant was very problematic witness and was not credible. Complainant tried to mislead court with theory of mistaken identity about who was doing bullying which bordered on contempt of court. Court believed complainant and one of his witnesses perjured themselves. Court concluded complainant was bully. Accused hit complainant once after months of shoulder bumping, mocking comments and intimidation which literally rendered accused sick and depressed. One punch thrown by accused was proportionate and reasonable in circumstances. R. v. R. (W.) (Nov. 4, 2010, Ont. C.J., Nicholas J.) 91 W.C.B. (2d) 85 (9 pp.). Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Accused was not psychologically detained until his arrest Accused was charged with failure to remain at scene of accident following investigation into hit and run collision between two automobiles. Accused made statements to police that his car had been stolen and that he moved car to another location after collision that he wished excluded from evidence. Licence plate registered to accused's car, which matched description of vehicle involved in hit and run, was recovered from scene. Accused contacted and fi ve of them met him in parking lot where he claimed to be looking for his car, which was supposedly missing. Accused eventually admitted to being in collision and leaving after seeing that nobody was hurt which resulted in his arrest. Accused alleged that fi rst offi cer on scene had been rough and intimidating to him before other offi cers arrived. Application dismissed. Accused was not physically restrained, handled or controlled by police until he was arrested. Court found accused was not psychologically detained until his arrest. Accused invited police to come to speak with him. Accused's right to choose remained intact throughout his dealings with police and his rights were not engaged until he was arrested, at which time his rights were complied with. R. v. Kazim (Oct. 15, 2010, Ont. C.J., Schwarzl J., File No. 09-3757) 91 W.C.B. (2d) 107 (32 pp.). Sentence DRUG OFFENCES Accused sentenced to two years' imprisonment for two counts of possession of cocaine for purpose of trafficking Accused sentenced to two years' imprisonment after he pleaded guilty to two counts of possession of cocaine for purpose of traffi cking. Sentence was result of joint submission. On fi rst off ence date 85 grams of cocaine were found in accused's motor vehicle. On second off ence date 1016 grams of cocaine were seized from gym bag in storage locker, for which accused had key and which he had accessed that day. Accused was on recognizance of bail at time of second off ence. Joint submission was reached having regard to myriad of Charter breaches and other mistakes made by investigating offi cers. Th ere was pattern of police conduct that led court to conclude that overall police conduct vis-a-vis accused was cavalier. Accused was 29-year old refugee with no prior criminal record. Accused had acknowledged guilt and accepted responsibility in circumstances where likelihood of conviction at trial was most unfavourable to Crown. R. v. Sup (Oct. 29, 2010, Ont. C.J., Agro J., File No. 09-5007) 91 W.C.B. (2d) 136 (21 pp.). Threatening And Intimidation CRIMINAL HARASSMENT Accused acquitted of criminal harassment of former wife Trial of accused for criminal harassment of his former wife, by repeatedly communicating with her between February 10 and September 14, 2009, thereby causing her to fear for her safety and for breach of probation order by communicating with complainant other than through counsel or as permitted by family court order. Charges arose out of protracted and bitter family break-up accompanied by disputes over custody, access and fi nancial issues, as well as by repeated resort to criminal courts in which accused was found guilty of variety of off ences in relation to complainant. At outset of its submissions Crown stated that it did not intend to pursue criminal harassment charge. Accused acquitted. Crown did right thing by abandoning harassment charge for there was no scintilla of evidence that complainant feared for her safety in 2009. Complainant was selective as to when she wanted law obeyed and when she did not. She was complicit in supposed breach. Court had serious concerns about complainant's credibility. Her evidence alone could not satisfy Crown's burden of truth. Th ere was no order in place, either in this matter or in family court proceedings that prohibited accused from calling complainant's home in order to speak to children. Accused's contact with complainant was reasonable in circumstances. Parties had problems with their two sons. In such circumstances it was necessary for parties to work together and telephone conduct was not only reasonable but it was essential. Th ere was no evidence that accused failed to keep the peace or to have caused complainant to have reasonably feared for her safety. CASELAW R. v. Jackson (Oct. 25, 2010, Ont. C.J., ODonnell J.) 91 W.C.B. (2d) 142 (21 pp.). FEDERAL COURT Citizenship REQUIREMENTS Citizenship judge overlooked fact that respondent's employment in United States was not temporary Appeal by Minister from decision of citizenship judge granting respondent citizenship. Respondent, whose worked in specialized fi eld of marine electronic equipment maintenance, arrived in Canada as permanent resident in 2001 and established home in Mississauga. In 2002, respondent found work in his fi eld in New York City and returned home most weekends. In 2007, respondent applied for Canadian citizenship. Respondent was 423 days short of required 1,095 days. However, citizenship judge granted respondent citizenship because he had established residency in Canada and centralized his life here. Appeal allowed. Citizenship judge overlooked fact that respondent's employment in United States was not temporary - it was indefi nite and possibly permanent. Respondent did not disclose any plan to live full-time in Canada, nor any intention to do so. Although respondent paid all of his income tax in Canada he also paid signifi cant amount of income tax in United States. Respondent told immigration offi cer that he had been resident of United States since 2005, however, citizenship judge did not refer to this evidence. Together these circumstances mean that decision of citizenship court judge was unreasonable. Canada (Minister of Citizenship and Immigration) v. Manas (Oct. 27, 2010, F.C., O'Reilly J., File No. T-476-10) 194 A.C.W.S. (3d) 371 (7 pp.). Immigration SELECTION AND ADMISSION Applicant did not show process used to reach decision was proce- durally unfair Applicant was denied permanent residence as skilled worker. Applicant received 65 points. Offi cer gave no points for family relationship in Canada because applicant failed to provide proof applicant's uncle was living in Canada. CAIPS notes indicated uncle was Canadian Citizen when uncle was permanent resident. Application for judicial review was dismissed. Burden of proving residency of relative rested with applicant. It was not offi cer's obligation to prove or disprove residence. Applicant's own admission in affi davit that applicant overlooked requested documents when completing package suggested applicant understood instructions and instructions were not ambiguous. Th ere was no www.lawtimesnews.com a Thomson Reuters business fettering of discretion as offi cer did not reject application on basis applicant failed to provide examples of documents listed in kit. Offi cer examined documents provided, weighed documents and concluded documents did not establish uncle was currently living in Canada. Fact offi cer did not accept driver's licence as evidence did not render decision unreasonable. Decision was reasonable. Applicant did not show process used to reach decision was procedurally unfair. Dhillon v. Canada (Minister of Citizenship and Immigration) (Oct. 26, 2010, F.C., Zinn J., File No. IMM-713-10) 194 A.C.W.S. (3d) 944 (17 pp.). TAX COURT OF CANADA Aboriginal Peoples EXEMPTION FROM TAXATION Subject income warranted protec- tion from diminution by taxation Appellants were Indians and were members of First Nation. Appellants derived income from fi shing in summer and collected employment insurance in winter. Minister assessed incomes as taxable. Appellants argued incomes were exempt from taxation by s. 81 of Income Tax Act (Can.) ("ITA"), and s. 87 of Indian Act (Can.). Appellants argued application of ITA was infringement with existing aboriginal right contrary to s. PAGE 15 35(1) of Constitution Act, 1982 (Can.). Appeals were allowed. Natural Resources Transfer Agreement was not to be given much weight. Agreement dealt with resource management arrangements between Federal Crown and provincial government. Agreement could not be construed as refl ecting dealings between Crown and First Nation that related to entitlements Indian qua Indian for purposes of tax exemption. Historical evidence established livelihood derived from pursuit of vocations including fi shing were always part of traditional way of life of First Nation. Th ere was no slippery slope to cause concern over allowing enterprise to enjoy benefi t of s. 87. Protection derived from pursuit of trade, nature of which attached to appellants as aboriginal people on reserve. Attachment was established by connecting factor analysis. It was establish that taxing appellants would be erosion of important economic base that went far beyond emergence of income source brought to reserve by outside world of commerce. Subject income warranted protection from diminution by taxation. Connecting factors did not allow for distinction to be made in respect of band members who choose to live off reserve. Robertson v. Canada (Oct. 29, 2010, T.C.C., Hershfi eld J., File No. 2004-3561(IT)G; 2004- 3567(IT)G; 2004-4573(IT)G) 194 A.C.W.S. (3d) 1018 (92 pp.). 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