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PAGE 14 CaseLawLaw FEDERAL COURT Evidence PRIVILEGE When making determinations under s. 38.01 of Canada Evidence Act, government not required to satisfy higher standard of actual inju- ry applied by court under s. 38.06 Application by Attorney Gen- eral of Canada for order con- firming that disclosure pro- hibition in s. 38.02(1)(a) of Canada Evidence Act, applied to certain documents that would otherwise have been subject to disclosure in civil proceeding. Federal govern- ment was defendant in action brought by plaintiffs who had been detained and mistreat- ed by authorities in Syria or Egypt. Plaintiffs alleged fed- eral government had role in their detention. Commission of inquiry was established to consider matter in non-public forum due to national secu- rity concerns. Plaintiffs were provided with copies of 486 documents mentioned in in- quiry report. Copies of 290 of those documents had been re- dacted due to potential injury to national security, national defence, or international rela- tions. Plaintiffs commenced motion in Ontario Superior Court of Justice for disclosure of unredacted copies. Attorney General of Canada brought its application in Federal Court with respect to large number of redacted documents that it did not agree to disclose. Ap- plication granted in part. Some redacted documents were or- dered to be disclosed in their entirety while summaries of some others were to be provid- ed. Plaintiffs' preference to have issue adjudicated by Ontario Superior Court of Justice was legally irrelevant given Parlia- ment's deliberate choice to as- sign jurisdiction exclusively to Federal Court. Constitution- ality of that choice was being considered elsewhere and was not part of current proceeding. Apart from certain administra- tive details, all redacted docu- ments at issue were relevant to plaintiffs' claims so focus was on injury to national security, national defence, or interna- tional relations. Government's process for determining poten- tial injury within meaning of s. 38.01 of Act was not flawed. When making determinations under s. 38.01 of Act, govern- ment was not required to sat- isfy higher standard of actual injury applied by court under s. 38.06 of Act. Examples of information that would cause injury if disclosed included in- formation about CSIS's inter- nal procedures, administrative methods, and human sources. Government failed to establish disclosure of certain redacted documents would result in injury so they were ordered to be disclosed. With respect to some other redacted docu- ments, plaintiffs established that public interest favoured disclosure notwithstanding injury. Ordering disclosure of only summaries of some of these documents would help to neutralize injury. Inadver- tent prior disclosure of one document had not amounted to waiver of privilege over that document. Canada (Attorney General) v. Almalki (Nov. 8, 2010, F.C., Mosley J., File No. DES-1-10) 195 A.C.W.S. (3d) 146 (83 pp.). FEDERAL COURT OF APPEAL Citizenship LOSS OF CITIZENSHIP Governor in Council's decisions not to revoke citizenships were rationally defensible Shortly after end of World War II, respondents O. and K. emigrated from war-ravaged Europe to Canada. Each con- cealed that they had served with forces, or in association with forces, that committed brutal, inhuman crimes. After exhaustive fact-finding process, Minister of Citizenship and Immigration issued reports recommending that citizen- ships of O. and K. be revoked, pursuant to revocation pro- ceedings under s. 10(1) of Cit- izenship Act (Can.). Governor in Council rejected Minister's recommendations. O. and K. remain citizens of Canada. Ap- pellant is dedicated to bringing war criminals to justice, repre- senting victims of war crimes, and influencing government policy on these subjects. On application for judicial review, application judge held that appellant had right or "stand- ing" to go to Federal Court and challenge Governor in Council's decision. Application judge also held that Governor in Council had power under s. 10(1) to reject Minister's rec- ommendation and that Gov- ernor in Council's decision to January 24, 2011 • Law Times COURT DECISIONS 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. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. reject Minister's recommenda- tion was reasonable. Finally, Governor in Council was enti- tled to reject Minister's recom- mendation and decide matter without receiving submissions appellant had made to Min- ister. Appeals were dismissed. While appellant was not enti- tled to direct standing to bring application for judicial review, appellant met all three of re- quirements for public interest standing. Parliament gave Gov- ernor in Council broad discre- tion under s. 10(1) to decide whether person's citizenship should be revoked. Governor in Council was not forced to accept Minister's recommenda- tion that person's citizenship be revoked. Governor in Council was not just date-setter. In these cases, Governor in Coun- cil's decisions not to revoke citizenships of O. and K. were rationally defensible. It was open to Governor in Council to find that facts as found in O. Reference and K. Reference did not implicate any of three main elements of Canada's war crimes policy: direct involve- ment or complicity; awareness or contribution; or member- ship. While Minister chose not to include any of appellant's submissions in reports, reading of Minister's reports, especially Minister's covering memoran- dum, showed that Minister robustly put to Governor in Council many of viewpoints and perspectives that appellant had advanced to Minister. In any event, given nature of is- sues before Governor in Coun- cil, procedural fairness obliga- tions in favour of appellant did not arise on these facts under this legislative regime. League for Human Rights of B'Nai Brith Canada v. Canada (Nov. 12, 2010, F.C.A., Shar- low, Trudel and Stratas JJ.A., File No. A-365-09; A366-09) Decision at 179 A.C.W.S. (3d) 272 was affirmed. 195 A.C.W.S. (3d) 20 (47 pp.). Taxation INCOME TAX Income from business was not situated on reserve Appellant was status Indian and member of Red Rock In- dian Band. Tax Court Judge held that appellant's income from his logging business in 1999, 2000, 2001 and 2002 was not exempted from tax by s. 81(1)(a) of Income Tax Act (Can.), and s. 87(1)(b) of Indi- an Act (Can.), because he had not established that income was "situated on a reserve". Tax Court Judge was fully www.lawtimesnews.com alive to totality of evidence and "surrounding circumstances" connecting business to and benefitting reserve. Fact that business activities and custom- ers of business were located off reserve indicated that income from business was not situated on reserve. In addition, type of business and nature of work indicated that business was in commercial mainstream. Tax Court Judge made no palpable and overriding error in apply- ing law to facts and made no error or law. Pelletier v. Canada (Nov. 8, 2010, F.C.A., Evans, Shar- low and Trudel JJ.A., File No. A-392-09) Decision at 178 A.C.W.S. (3d) 1062 was af- firmed. 195 A.C.W.S. (3d) 283 (6 pp.). TAX COURT OF CANADA Taxation INCOME TAX Amalgamation of credit unions was not amalgamation as defined in s. 87 of Income Tax Act (Can.) Two credit unions merged. Ap- pellant argued s. 87 of Income Tax Act (Can.) ("ITA"), did not apply to merger. Credit unions were amalgamated pursuant to provisions of Credit Union Incorporation Act (B.C.). Ap- pellant argued merger was not amalgamation as defined in s. 87(1) of ITA because each of credit unions transferred interest in real property to numbered company at time of amalgamation and therefore not all property of predeces- sor credit unions immediately before merger became prop- erty of appellant by virtue of merger. Appeal from 2001 taxation year was allowed and reassessments were vacated. Appeals from reassessments of 2002, 2003 and 2004 taxation years were dismissed. Transfer by credit unions of their ben- eficial interest in real property to number company occurred at effective time. Appellant did not acquire beneficial interest in properties by virtue of amal- gamation and amalgamation of credit unions was not amal- gamation as defined in s. 87 of ITA. In determining UCC of depreciable assets of appellant amount allowed to each credit union as depreciation was to be deducted. Misrepresentations made by appellant in 2001 tax return in relation to opening balance of UCC and failure to include reserve for doubtful debts were not attributable to neglect, carelessness or wilful default but were based on not only recommended filing posi- tion but also position of CRA. Appellant had bona fide belief it had valid basis to file 2001 tax return as it was filed. Ap- pellant could not be reassessed to increase income by decreas- ing amount of CCA it could claim in 2002. Minister could not appeal own assessment. No adjustment was made to CCA appellant was allowed to claim for 2003 and 2004. Envision Credit Union v. Canada (Nov. 17, 2010, T.C.C., Webb J., File No. 2008-2213(IT)G) 195 A.C.W.S. (3d) 282 (65 pp.). ONTARIO CRIMINAL CASES Charter Of Rights ARBITRARY DETENTION OR IMPRISONMENT Delay in bringing young persons before justice of the peace after arrest violated Charter but did not justify stay of proceedings Application by two accused young persons for stay of pro- ceedings because their rights under ss. 7 and 9 of Cana- dian Charter of Rights and Freedoms were violated. Ap- plicants were part of group of nine persons who were arrested in connection with several violent street robberies. Pro- cessing offenders took several hours and it was complicated by fact that offences took place in more than one police divi- sion. Applicants claimed their Charter rights were violated because they were not brought before Justice of the Peace within 24 hours of their arrest, as required under s. 503(1) of Criminal Code, even though one was available. Crown con- ceded that this deadline was not met for offenders were not brought to bail court until nine hours had passed beyond dead- line. Application dismissed. Accused were arbitrarily de- tained, in violation of s. 9 and their liberty was not curtailed in accordance with principles of fundamental justice, in vio- lation of s. 7. Stay was denied because even though ss. 7 and 9 were violated these rights were not flagrantly disregarded by police. Police called Justice of the Peace when they became aware that they would not meet deadline. Delay in transport- ing accused was due to highly unusual nature of this case,

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