Law Times

PAGE 16 CaseLawLaw SUPREME COURT OF CANADA Evidence CONFESSIONS AND ADMISSIONS E-mail was not derived confession Accused charged with sexual as- sault. Accused wrote apology to complainant after police implied that he would not be charged if he did so. Five weeks later accused emailed complainant's mother and apologized for causing emo- tional harm to complainant. Initial apology ruled inadmis- sible at trial due to inducement. Email admitted into evidence without objection from defence. Accused testifi ed that email apol- ogy referred to other incident and not to sexual assault. Trial judge rejected this evidence and convicted accused. Court of Ap- peal set aside conviction on basis that trial judge erred by failing to hold voir dire into admissibility of email. Crown appeal allowed. Email was not sent to person in authority. No evidence of connec- tion between email and original apology suffi cient to make email derived confession. Accused's evi- dence was contrary to any such connection. Trial judge need not interfere with tactical decision of defence counsel to consent to ad- mission of email. R. v. T. (S.G.) (May 27, 2010, S.C.C., McLachlin C.J.C., Bin- nie, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 32890) Decision at 79 W.C.B. (2d) 828 reversed. 87 W.C.B. (2d) 814 (41 pp.). FEDERAL COURT OF APPEAL Communications Law BROADCASTING CRTC did not have jurisdiction to hear matter Appeal from decision of Ca- nadian Radio-Television and Telecommunications Commis- sion ("CRTC"). Appellant and respondent entered into fi ve- year support structure license agreement in which respondent granted appellant permits allow- ing it to use telephone poles in New Brunswick. Respondent did not own poles, but had right to grant permits. During life of contract, New Brunswick Power, which owned the poles, revoked respondent's right to grant per- mits to third parties. Appellant had to pay much higher rates to New Brunswick power as a result. CRTC found it did not have ju- risdiction to hear matter. Appel- lant argued it should not have declined jurisdiction. Appeal dismissed. Jurisdictional ruling correct. Respondent was no lon- ger able to provide use of support structures, so there was no longer "telecommunications service" un- der s. 2 of Telecommunications Act (Can.). Since CRTC did not have jurisdiction to regulate terms of access to poles owned by provincially regulated utilities, it could not hear matter. Any addi- tional comments made by CRTC about terms of contract were be- yond its jurisdiction and to be disregarded. Rogers Cable Communications Inc. v. Bell Aliant Regional Com- munications Limited Partnership (Apr. 27, 2010, F.C.A., Blais C.J., Noel and Stratas JJ.A., File No. A-374-09) 188 A.C.W.S. (3d) 87 (7 pp.). FEDERAL COURT Immigration INADMISSIBLE AND REMOVABLE CLASSES Medical Officer's decision transparent, intelligible and fell within realm of reasonable outcomes Application for judicial review of determination of Visa Offi cer that applicant inadmissible un- der s. 38 (1) of Immigration and Refugee Protection Act (Can.), because applicant was person whose health condition might reasonably be expected to cause excessive demand on health and social services in Canada. Appli- CompensationSurvey The Canadian Lawyer 2010 Compensation_survey_BBad.indd 1 June 28, 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. cant applied to come to Canada as permanent resident in 2005. Applicant discovered to have lung cancer during medical assessment in 2007. Th ree and one-half cen- timetre tumour removed from left lung. Cancer had not metas- tasized and applicant remained in generally good health. Medical Offi cer prepared opinion which was provided to applicant with request that he respond. Appli- cant responded with letter and report from medical doctor who disagreed with opinion of medi- cal offi cer. Medical Offi cer issued fi nal medical opinion in which initial opinion confi rmed. Opin- ion of Medical Offi cer together with applicant's medical report and letter reviewed by Visa Offi - cer. Application dismissed. Medi- cal Offi cer's report individualized rather than generic. Medical Of- fi cer took into consideration in- formation submitted in response by applicant. Use of statistical in- formation as contained in medi- cal literature only reasonable way of assessing likelihood applicant would require treatment in future given applicant had minimal his- tory of surviving disease post sur- gery. Reliance by Medical Offi cer on such statistical data did not necessarily make evaluation non- personalized. Medical Offi cer's decision transparent, intelligible and fell within realm of reason- able outcomes. Role of court par- ticularly on issues of medical di- agnosis not to re-weigh evidence. Mazhari v. Canada (Minister of Citizenship and Immigration) (Apr. 29, 2010, F.C., Snider J., File No. IMM-3992-08) 188 A.C.W.S. (3d) 226 (18 pp.). SELECTION AND ADMISSION Application for judicial review of denial of permanent residence appli- cation was allowed Application for judicial review of denial of permanent residence ap- plication. Applicant was citizen of India who applied for permanent residence in 2005. Application had been assessed as member of federal skilled worker class-second- ary school teacher. Applicant had submitted copy of brother-in-law's permanent resident card, copy of brother-in-law's Indian passport renewed in Vancouver with Brit- 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. ish Columbia address and affi davit from his wife in which she provid- ed her brother's British Columbia address. In May 2009, when his application was assessed, appli- cant was informed that brother- in-law's permanent resident card expired on October 6, 2008 and it had not been demonstrated that brother-in-law was Canadian citi- zen or was residing in Canada. Ap- plicant was awarded no points for adaptability as he had not demon- strated that spouse's brother was permanent resident. Applicant needed 67 points but was only awarded 62. Had applicant been able to demonstrate that spouse's brother was permanent resident living in Canada he would have been assessed fi ve more points. Application allowed. At time ap- plicant's application was assessed, his brother-in-law may or may not have been living in Canada, may or may not have met residency obligation under s. 28 of Immi- gration and Refugee Protection Act (Can.), may or may not have received renewed permanent resi- dent card, may or may not have become citizen and there may or may not have been investigation against him. It was procedurally unfair for visa offi cer to render her decision without bringing these concerns to applicant's attention and giving applicant opportunity to dispel them. Th is was not case where there had been bald state- ment of relative living in Canada, without any evidence whatsoever. Th ere was evidence. If offi cer had wanted more she should have asked for more. It was wrong to rely upon delay in processing to pounce on fact that permanent resident evidence, which was cur- rent when submitted, had by then expired. Gill v. Canada (Minister of Citi- zenship and Immigration) (Apr. 28, 2010, F.C., Harrington J., File No. IMM-3551-09) 188 A.C.W.S. (3d) 245 (8 pp.). Citizenship QUALIFICATIONS Citizenship judge relied on subjective and irrelevant criteria Appeal by Minister of Citizenship and Immigration from decision to approve respondent's applica- tion for citizenship. Respondent Your chance to win a $250 Canada Law Book gift certificate Canadian Lawyer has revamped our much-in-demand compensation survey to include lawyers in law firms as well as corporate legal departments. We are looking for managing partners and the heads of corporate legal came to Canada from China in 2000 on student visa. She obtained permanent residence status in 2005 and left Canada to do post-doctoral studies in United States. Her husband and children remained in Canada for couple of years while respondent studied and worked in United States. Respondent applied for citizenship in 2008. She had been physically present in Canada for 346 days during four years prior to her citizenship application. Citizenship judge considered re- spondent's absence from Canada temporary because she had been in Canada since 2000 and was applying for jobs in Canada. Citi- zenship judge was impressed by respondent's devotion to Canada and concluded she would be asset to Canadian universities and sci- entifi c communities. Citizenship judge determined that respon- dent met residency requirement. Minister appealed, contending that citizenship judge erred by considering irrelevant factors and unreasonably concluded that re- spondent met residency require- ments. Appeal allowed. Section 5(1)(c) of Citizenship Act (Can.), requires applicant for citizenship to establish residence in Canada for three of four years preced- ing their application, i.e. at least 1,095 out of 1,461 days. Here, citizenship judge concluded that respondent met requirements relying on subjective and irrel- evant criteria and speculation that refl ected his sympathetic impression of her. Citizenship judge failed to consider whether respondent had centralized her mode of existence in Canada be- fore leaving for United States and whether quality of her connection with Canada was more substan- tial than with any other country. Respondent spent majority of four-year period in United States pursuing post-doctoral work. Re- spondent was off ered position at Canadian university but turned it down. Her attendance at univer- sity in United States was personal choice. Her family had moved from Canada to join respondent in United States. Notwithstand- ing respondent's stated preference for Canada it could not be said that quality of her connection to this country was more substantial departments to take a few minutes to fill it out.The results of this survey are unique in Canada and will give readers a perspective on who's earning what across the country. SURVEY CLOSES JULY 14 To complete the survey visit canadianlawyermag.com/surveys www.lawtimesnews.com 6/24/10 10:09:01 AM

• Cover
• 100 Years
• Doing The Math
• Focus On Municipal & Planning Law