Law Times

Law TiMes • May 2, 2011 ONTARIO CRIMINAL CASES Appeal SENTENCE APPEAL Sentencing judge erred in placing undue emphasis on principle of deterrence without giving adequate weight to rehabilitation of youthful first offender Accused appealed his sentence of 30 months' imprisonment after he was convicted of robbery, dis- guise with intent and possession of imitation firearm in relation to robbery of Blockbuster video store. Leave to appeal granted, appeal allowed, sentence reduced to two years less one day. Accused was entitled to tender new evi- dence on his conduct post con- viction. Accused presented very favourable prospects for rehabili- tation. Sentencing judge erred in placing undue emphasis on prin- ciple of deterrence without giving adequate weight to rehabilitation of youthful first offender. R. v. Burnett (June 27, 2007, Ont. C.A., Goudge, Lang and Rouleau JJ.A., File No. C43803) 93 W.C.B. (2d) 91 (10 pp.). Charter Of Rights LANGUAGE RIGHTS Police did not provide accused with language rights he needed to properly exercise his right to counsel Accused had been charged with driving over 80. His first language was Vietnamese and he spoke little English at home or work. Accused claimed he did not fully understand what was happening that night due to his language difficulties and that police did not make reasonable efforts to ensure that he did understand. Neither police nor duty counsel arranged for interpreter. Facts gave rise to "special circumstanc- es" that required police to take reasonable measures to insure ac- cused understood what was hap- pening and such measures were not taken. Police did not provide accused with language rights he needed to properly exercise his right to counsel. Court rejected interpreter sent by Ministry of Attorney General Court Services, because he was neither accredited nor conditionally accredited and had no experience interpreting in criminal court. This resulted in additional delay. Accused's right to be informed promptly of his right to counsel on his detention and arrest breached, as well as his ss. 11(b) and 14 Charter rights thereafter. Charge dismissed. R. v. Tran (Feb. 14, 2011, Ont. C.J., Reinhardt J., File No. 12002997/2007) 93 W.C.B. (2d) 38 (15 pp.). TRIAL WITHIN REASONABLE TIME Prejudice of accused inherent in being charged and not shown to be due to delay Accused, charged with sexual as- sault, applied for stay of proceed- ings. There was five year delay from time accused was charged until trial was scheduled for third time. On first two instances trial was scheduled judge was un- available. Accused's counsel was extremely busy and required lengthy adjournments beyond that which would otherwise have been required. Application dis- missed. After delays for intake requirements, adjournments for which accused's s. 11(b) rights were expressly or impliedly waived and other adjournments that in part at least weighed against accused, delay was 18 to 19 months. Accused acknowl- edged that great deal of delay was due to his counsel's schedule and choice of defence counsel was his. Prejudice of accused was inherent in being charged and could not be shown to be due to delay. R. v. Bertelli (Mar. 2, 2011, Ont. S.C.J., Newbould J., File No. 0280/07) 93 W.C.B. (2d) 51(13 pp.). Evidence ADMISSIBILITY Evidence of previously unreported sexual assault admitted to be considered at dangerous offender hearing Accused found guilty of crimi- nal harassment, failing to com- ply with probation and uttering threats. Crown applied for dan- gerous offender status and sought to introduce evidence of previ- ously unreported sexual assault of his former domestic partner. Evi- dence admitted to be considered in dangerous offender hearing. Looking at totality of witness' evidence she seemed genuine and candid in her account of what took place. In context of conflicted relationship between her and accused her reasons for not immediately disclosing was understandable. No merit ex- isted in purported inconsisten- cies or false certainties submit- ted by defence. Crown proved this allegation of sexual assault beyond reasonable doubt. R. v. Jerome (Jan. 7, 2011, Ont. C.J., Pringle J.) 93 W.C.B. (2d) 109 (6 pp.). Sexual Offences SEXUAL ASSAULT Court had reasonable doubt about whether complainant's level of intoxication crossed line to point of incapacitation Accused charged with sexual as- sault. It was agreed that accused and complainant had sexual in- tercourse at accused's apartment but consent was live issue. Com- plainant testified that she was so intoxicated that night that she blacked out and had no memory of events. Accused testified that complainant showed no out- ward signs of intoxication and that she willingly participated in sexual activity. Accused acquit- ted. Complainant's testimony of her actions post intercourse were not consistent with someone who was supposedly intoxicated to point of incapacity just little while earlier. On evidence most court could conclude was that, on night in question, complain- ant was intoxicated and perhaps drunk. Court had reasonable doubt about whether complain- ant's level of intoxication crossed line to point of incapacitation. R. v. Meikle (Jan. 27, 2011, Ont. CASELAW S.C.J., Trotter J.) 93 W.C.B. (2d) 123 (13 pp.). FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Remedies sought on interim basis clearly called for direct intervention in difficult political situation Application by band for order staying or suspending opera- tion of decision made by Elders Council pending determination of application for judicial review. Band Council was in power struggle. Application granted. There were serious issues to be tried. It was band members who would experience irreparable harm by having such conflict and uncertainty in their power struggles. Remedies sought on interim basis clearly called for direct intervention in difficult political situation. Lower Nicola Indian Band v. Joe (Feb. 8, 2011, F.C., Noel J., File No. T-2128-10) 198 A.C.W.S. (3d) 253 (20 pp.). Citizenship QUALIFICATIONS Applicant met time requirement for residency through exceptional circumstances Appeal by applicant of decision of citizenship judge denying ap- plicant's application for citizen- ship by virtue of s. 5(1)(c) of Cit- izenship Act (Can.). Applicant was citizen of Pakistan. Applicant became permanent residence of Canada in 2002. During relevant four-year period, applicant made frequent trips to UAE, where her husband, mother and brother were working. Judge determined that applicant was 57 days short of statutory residency requirement. Appeal allowed. Matter was re- mitted for reconsideration by another citizenship judge. De- cision was unreasonable. Ap- plicant clearly established her residency. Despite shortfall in her physical presence, appli- cant met time requirement for residency through exceptional circumstances. Khan v. Canada (Minister of Citi- zenship and Immigration) (Feb. 24, 2011, F.C., Scott J., File No. T-1136-10) 198 A.C.W.S. (3d) 284 (16 pp.). Immigration SELECTION AND ADMISSION Officer's failure to examine hardship in assessing application was error that warranted intervention Applicants were refused perma- nent residency from within Can- ada on humanitarian and com- passionate ("H&C") grounds. Officer found applicant did not show steady employment dur- ing eight years in Canada and did not show financial indepen- dence. Father of Canadian child was Canadian citizen but officer concluded applicants failed to establish child had ongoing re- lationship with father. There was warrant for principal applicant's arrest for failure to comply with www.lawtimesnews.com removal order. With respect to clean hands issue court exercised discretion in applicants' favour and considered merits of appli- cation. Application for judicial review was allowed. Officer ap- plied incorrect test in assessing H&C application. It was open to officer to adopt board's find- ings about risk to applicants, but officer was required to assess risk on threshold applicable to H&C applications. Officer's failure to examine hardship in assessing H&C application was error that warranted intervention. Paul v. Canada (Minister of Citi- zenship and Immigration) (Feb. 7, 2011, F.C., Boivin J., File No. IMM-2473-10) 198 A.C.W.S. (3d) 474 (12 pp.). Taxation INCOME TAX CRA not estopped from denying Voluntary Disclosure Policy relief because it took no action on arbitrary assessments Application for judicial review of decision of Canada Revenue Agency refusing to apply Vol- untary Disclosures Policy to ap- plicants. Corporations paid all income to applicant. Applicant had never filed tax returns for either company. Applicant filed last personal income tax return in 1999 and did not pay taxes owed or either 1998 or 1999. Appli- cant defaulted on obligations under payment schedule to cover unpaid amounts. Application dismissed. Issuance of request to file tax return for 2006 on March 28, 2008 was an enforcement PAGE 15 action and served as clear signal that CRA pursuing applicant. Application five months later for Voluntary Disclosure relief could not be considered volun- tary. CRA not estopped from denying relief because it took no action on arbitrary assess- ments of 2003 and 2007 after March 2007 when it last spoke with trustee. Enthusiasm CRA displays for collection activity has nothing to do with whether discretion should be exercised in favour of allowing relief. Mischaracterization by CRA of arbitrary assessments as enforce- ment action not fatal to deci- sion because it was also based on other enforcement actions. Bontje v. Forcap International Ltd. (Feb. 11, 2011, F.C., Simp- son J., File No. T-2125-09) 198 A.C.W.S. (3d) 543 (12 pp.). Employment Insurance ENTITLEMENT Board of Referees did not have juris- diction to back-date start date Application for judicial review of decision by Department of Human Resources and Skills Development Canada determin- ing that it lacked jurisdiction to back-date start date of applicant's self-employment remittance of Employment Insurance premi- ums for Special Benefits. Appli- cation dismissed. Board of Ref- erees did not have jurisdiction to grant remedy sought. Wegener v. Canada (Feb. 7, 2011, F.C., Rennie J., File No. T-1036-10) 198 A.C.W.S. (3d) 374 (8 pp.). 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