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PAGE 16 CaseLawLaw SUPREME COURT OF CANADA Defences GENERAL Evidence incapable of supporting defence of abandonment Accused charged with murder. Accused and four others lured deceased to golf course where deceased was sexually assaulted and beaten to death. Accused hit deceased in head with wrench before co-accused sexu- ally assaulted her. Accused then left scene with another girl say- ing that girl "did not need to see this". After their departure de- ceased was beaten to death. At trial accused relied on defence of abandonment. Trial judge accepted defence and found ac- cused not guilty of murder but guilty of manslaughter. Verdict upheld by Alberta Court of Ap- peal, Costigan J.A. dissenting. Crown appeal allowed. Evi- dence was incapable of support- ing defence of abandonment. No other defence arose on facts. Conviction for first degree mur- der entered. R. v. B. (S.R.) (Dec. 18, 2009, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33054) 86 W.C.B. (2d) 60 (4 pp.). FEDERAL COURT Citizenship QUALIFICATIONS Citizenship judge did not comply with statutory duty to provide reasons Appeal by Minister of Citizen- ship and Immigration from decision of citizenship judge approving permanent resident's application for citizenship. Per- manent resident had come to Canada from China as student in 1998. Permanent resident married Canadian citizen in Au- gust 2001 and was granted per- manent residence in September 2001. Permanent resident ap- plied for citizenship in October 2007 but initially failed to pro- vide all requested documents. Application was reviewed by citizenship judge who merely indicated he was satisfied per- manent resident met residence criteria. Application granted; matter remitted for re-deter- mination. Citizenship judge did not comply with his statu- tory duty to provide reasons pursuant to s. 14(2) of Citizen- ship Act (Can.), so his decision could not stand. Fact that form provided to citizenship judge had only small space for reasons did not affect requirement to provide clear and adequate rea- sons. Authorities indicated rea- sons should always be provided where statutory right of appeal existed. Appeal was Minister's sole recourse once citizenship judge made decision. Minis- ter needed to know citizen- ship judge's reasons in order to decide whether or not appeal should be initiated. Canada (Minister of Citizen- ship and Immigration) v. Wang (Dec. 18, 2009, F.C., Man- damin J., File No. T-1871-08) 183 A.C.W.S. (3d) 645 (16 pp.). Human Rights Legislation DISCRIMINATION No objective link between incidents described and applicant's marital status Applicant made complaint of harassment on basis of national or ethnic origin and marital status. Commission dismissed complaint. Application for ju- dicial review was dismissed. Investigating allegations based on marital status would not have helped applicant because commission did not doubt facts applicant described took place. Conclusion respondent's words and actions had nothing to do with applicant's marital status and did not amount to harass- ment was not unreasonable. There was no objective link between incidents applicant de- scribed and applicant's marital status. Evidence to support ap- March 1, 2010 • Law TiMes COURT DECISIONS ainmaker_LT_June2_08.indd 1 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: 5/28/08 10:43:29 AM These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. plicant's arguments with respect to whether commission con- ducted sufficiently thorough investigation of allegations of harassment based on national origin was lacking. Boiko v. Grover (Dec. 18, 2009, F.C., Tremblay-Lamer J., File No. T-136-08) 183 A.C.W.S. (3d) 809 (14 pp.). Immigration PERSON IN NEED OF PROTECTION Application for judicial review of negative pre-removal risk assessment allowed Application by foreign national for judicial review of negative pre-removal risk assessment ("PRRA"). Foreign national was citizen of Kenya who be- came involved in property dis- pute with his cousin. Cousin and others attacked foreign national and his wife. Police considered incident to be fam- ily matter even though foreign national had been hospitalized and wife had been raped. Wife fled to Mexico while foreign national came to Canada under visa allowing him to participate in marathon. Foreign national unsuccessfully applied for refu- gee protection. Foreign national applied for PRRA on basis that cousin was still looking for him, that two of his friends had since been killed, and that he was suffering from post-traumatic stress disorder. PRRA officer concluded evidence was insuf- ficient to prove death of friends was related to property dispute. PRRA officer noted Immigra- tion and Refugee Board had already rejected personal ven- detta as basis for refugee claim. PRRA officer found evidence of post-traumatic stress disorder to be insufficient and that foreign national failed to establish in- sufficiency of state protection. Application granted; matter remitted for re-determination. Foreign national's new evidence demonstrated new risk beyond what had existed at time of refu- gee claim. Evidence also refuted board's prior conclusion that threat would probably dissipate over time if property dispute was not pursued. PRRA officer 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. was unreasonable in not consid- ering foreign national's evidence to have sufficiently established connection between killings and property dispute. PRRA officer had accepted evidence without questioning its cred- ibility. PRRA officer committed further error by misconstruing medical evidence. Finally, anal- ysis of state protection was too sparse to be accepted. Njeru v. Canada (Minister of Citizenship and Immigration) (Dec. 16, 2009, F.C., Russell J., File No. IMM-2258-09) 183 A.C.W.S. (3d) 811 (26 pp.). REFUGEE STATUS Adverse credibility finding unreasonable Application by refugee claimant for judicial review of decision that he was neither Convention Refugee nor person in need of protection. Refugee claimant was citizen of Iran who was detained after attending dem- onstration. Refugee claimant was interrogated and assaulted over six days. Refugee claimant was required to sign undertak- ing not to participate in similar future activities, and he was ex- pelled from university. Refugee claimant treatment experienced after similar participating in certain meetings. Refugee claimant's father was also de- tained and interrogated. Refu- gee claimant fled to Canada and unsuccessfully applied for refugee status. Interpreter had misinterpreted date that refu- gee claimant's father had been detained. Immigration and Refugee Board found refugee claimant not to be credible due to discrepancy in date and pro- duction of documents that he likely would not have received. Application remitted granted; for matter reconsideration. Adverse credibility finding was unreasonable. Discrepancy in date had been pivotal in ad- verse credibility findings since adverse credibility finding with respect to documents was based on adverse credibility finding with respect to date. Transcript clearly showed discrepancy in date arose from error in inter- pretation. Board had indicated refugee claimant could make submissions on discrepancy but then never provided him with opportunity to make submis- sions. Board could have checked Iranian calendar to reconcile discrepancy but instead board rejected all of refugee claimant's evidence in its entirety. Failure to provide opportunity to make submissions was in itself breach of procedural fairness warrant- ing reconsideration. Zavalat v. Canada (Minister of Citizenship and Immigration) (Dec. 16, 2009, F.C., Russell J., File No. IMM-2166-09) 183 A.C.W.S. (3d) 812 (29 pp.). SELECTION AND ADMISSION Decision to grant or deny permanent residence did not affect applicant's fundamental freedoms Application by foreign national for judicial review of decision of visa officer denying him perma- nent residence. Foreign national was citizen of India who applied for permanent residence under skilled worker class. Foreign na- tional had brother who was Ca- nadian citizen purportedly liv- ing in Canada. Foreign national was instructed to provide docu- ments establishing relationship and brother's residence. Foreign national was advised in advance that affidavit was not satisfac- tory proof of relationship and residence and that no request for further documents would be made. Foreign national submit- ted affidavit without proper doc- uments and so was not awarded points for family relationship. Permanent residence was de- nied since foreign national was awarded only 65 of required 67 points. Foreign national claimed he submitted further documents after initial decision but they were apparently never received. Application dismissed. Duty of fairness had been met in this case. Foreign national could not have expected strong procedural safeguards in light of nature of regulatory scheme and role of visa officer in that scheme. Decision to grant or deny permanent residence was obviously important to foreign national but did not affect his fundamental freedoms. Foreign national had been specifically Your best legal move may be the one you haven't considered. SMSS.COM CHARLOTTETOWN Untitled-5 1 FREDERICTON www.lawtimesnews.com HALIFAX MONCTON SAINT JOHN ST. JOHN'S 2/23/10 3:42:50 PM

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