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Law TiMes • March 29, 2010 ing contact with judges Cost sanction for breach of Rules of Civil Procedure (Ont.). After hearing on application counsel for respondent sent to judge copy of letter dealing with matter before court. Applicant brought motion for mistrial. Judge denied motion. Parties made cost submissions. Costs of $15,000 awarded to applicant. Th ough unsuccessful on motion applicant was entitled to costs by way of sanction for conduct of counsel for respondent. In sending letter counsel breached rule 1.09 of Rules prohibiting contact with judges unless with consent of parties or with direc- tion of court. Ward v. Ward (Jan. 29, 2010, Ont. S.C.J., Matheson J., File No. 40252/07) 184 A.C.W.S. (3d) 625 (12 pp.). FEDERAL COURT REFUGEE STATUS Application to reopen must be allowed if there was failure to observe principal of natural justice Application for judicial review of decision of Refugee Protection Division of Immigration and Refugee Board refusing applica- tion to reopen hearing of Con- vention Refugee claim pursuant to s. 55 of Refugee Protection Division Rules (Can.). Conven- tion Refugee Claim dismissed on grounds of credibility tied in with determination of presen- tation of false police report of applicant's claim. Board sus- picious as to provenance of document and obtained con- sent to verify authenticity. Re- ports from Mexico including one from offi cer who allegedly took complaint were to eff ect that authorities had no such record. Fact brought to atten- tion of lawyer and designated representative for applicant who was under eighteen years of age. Lawyer and designated agent did not discuss informa- tion with applicant and lawyer took position that document had been manufactured by applicant's mother in Mexico and did not refl ect upon appli- cant. Application for leave to seek judicial review of decision dismissing claim for Conven- tion refugee status dismissed. Applicant thereafter retained new counsel and obtained an- other report from same police offi cer who confi rmed that he had indeed received applicant's original complaint. Applica- tion granted. Application to reopen can only be and must be allowed if there was failure to observe principal of natural justice. Not enough to sim- ply have new facts. Applicant let down by former counsel and designated representative whose decision not to discuss matter with applicant was non- feasance. New facts brought to attention of Board were issues of natural justice. Diaz v. Canada (Minister of Citizenship and Immigration) (Feb. 11, 2010, F.C., Har- rington J., File No. IMM- 3883-09) 184 A.C.W.S. (3d) 776 (11 pp.). Taxation INCOME TAX Guidelines were not intended to control discretionary determination Applicant engaged tax preparer to prepare return for 2006 taxa- tion year. Tax preparer failed to include income from two em- ployment sources thereby un- derstating applicant's income. Applicant obtained tax refund. After discovering mistake re- spondent agency sent applicant notice of reassessment indicat- ing applicant had been over- paid by $123.98. Applicant was also assessed penalties totalling $7,243.80 and arrears interest of $380.05. Applicant sought relief through waiver of penalties and interests pursuant to s. 163(1) of Income Tax Act (Can.). Del- egate of Minister of National Revenue refused relief on basis of Guidelines contained in In- come Tax Information Circular No. IC07-1. Applicant sought judicial review. Judicial review allowed. Ministerial representa- tive committed reviewable error in treating Guidelines as if these were binding as law. Guidelines were not intended to control discretionary determination. Representative failed to make own determination whether circumstances of applicant war- ranted relief. Matter referred to diff erent Ministerial representa- tive for redetermination. Spence v. Canada (Revenue Agen- cy) (Jan. 19, 2010, F.C., O'Keefe J., File No. T-632-09) 184 A.C.W.S. (3d) 582 (14 pp.). ONTARIO CRIMINAL CASES Assault ASSAULT WITH WEAPON Complainant's injuries not consistent with accused's version of events Accused charged with assault, assault with weapon, uttering threat to cause bodily harm and unlawful confi nement against his spouse. Accused was in- volved in "three party relation- ship" with complainant and another woman. During argu- ment, complainant told accused she had extra marital aff air with another man and would not en- gage in threesomes with accused any more, causing accused to be- come very angry upon which ac- cused allegedly forced complain- ant into basement and hogtied her for about twenty minutes, after which parties made up. In argument later that day, accused allegedly tilted back complain- ant's head and burnt her left ear with hair straightener she was using and threatened to throw her into tub with hair straight- ener. It was alleged that accused then picked up exacto knife and held it in front of her face while threatening to disfi gure her face with it and then punched her in ribs and stomach. Later in back- yard, accused allegedly punched CASElAW and kicked complainant again. Series of alleged assaults took place over period of six or sev- en hours. Accused guilty on all counts. Court rejected accused's explanations for what occurred. Injuries on complainant's body were not consistent with ac- cused's version of events. Court found complainant's evidence compelling, reliable and cor- roborated in material ways. R. v. Finnister (Jan. 15, 2010, Ont. C.J., Campbell J., File No. 09 7262DV) 86 W.C.B. (2d) 400 (9 pp.). Charter Of Rights TRIAL WITHIN REASONABLE TIME Accused waived his right to speedy trial Accused was charged with posses- sion of unlicensed handgun and storing handgun in careless man- ner as well as possession of cocaine for purposes of traffi cking, posses- sion of cocaine and possession of ecstasy for purposes of traffi cking. Accused changed lawyers twice before trial. Total delay from ar- rest to trial was approximately 28 months. Application dismissed. Accused validly waived his right to speedy trial when waiver was explicitly discussed with him by trial judge on both instances that he changed counsel. Delays as- sociated with accused's problems with his counsel counted against defence. Accused did not disclose any specifi c prejudice that was not inherent in facing criminal charge before Court. Court found there was strong social interest in seeing that gun and drug off ences are tried on their merits. Delay was not unreasonable and stay was not appropriate remedy. R. v. Murphy (Jan. 25, 2010, Ont. S.C.J., DiTomaso J., File No. 08-042) 86 W.C.B. (2d) 424 (11 pp.). Defences ENTRAPMENT Asking accused if he was drug trafficker did not amount to giving accused opportunity to commit offence Accused charged with traffi ck- ing in narcotics. Undercover police offi cer investigated anon- ymous tip that man was selling drugs on 12th fl oor of build- ing. Offi cer was approached by accused as soon as he stepped off elevator. Offi cer asked ac- cused if he could "hook me up". Accused agreed and took offi cer to his apartment. Offi - cer witnessed drug transaction and then bought drugs from accused. Police executed search warrant and seized drugs from accused's apartment. Trial judge heard accused's entrapment claim as pretrial Charter mo- tion. Trial judge excluded evi- dence under s. 24(2) of Charter and acquitted accused. Crown appeal allowed. No evidence of entrapment. Asking accused if he was drug traffi cker did not amount to giving accused op- portunity to commit off ence. Entrapment hearing should not have been held until after fi nding of guilt. Stay is prefer- able remedy for entrapment to exclusion of evidence. www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 2/3/10 1:41:29 PM R. v. Imoro (Feb. 12, 2010, Ont. C.A., Laskin, Blair and Watt JJ.A., File No. C49159) Appeal from 235 C.C.C. (3d) 86, 78 W.C.B. (2d) 821 allowed. 86 W.C.B. (2d) 432 (11 pp.). Evidence CONFESSIONS AND ADMISSIONS Statements were given voluntarily Accused charged with assault and numerous weapons of- fences. At issue was voluntari- ness of statements and discovery of fi rearms and whether state- ment should be excluded. Ac- cused is alleged to gave pointed fi rearm in face of persona and threatened him with physical harm. Accused was involved in altercation during move from rented premises. After being questioned accused was later ar- rested. Accused contended his Charter rights were infringed before arrest. Statements given voluntarily. Accused was out- side and free to continue on his way and not give incriminating statements. No signifi cant de- privation of liberty. Offi cer did not threaten, promise, oppress, or trick accused. Accused's rights under s. 8 were violated and sei- zure of fi rearm was unlawful. Gun and written statement ex- cluded during trial as inadmis- sible evidence. Exclusion would not bring administration of jus- tice into disrepute. R. v. White (Jan. 15, 2010, Ont. S.C.J., Lalonde J., File No. 08- 11376) 86 W.C.B. (2d) 438 (36 pp.). Restitution GENERAL Sentencing judge erred by failing to consider accused's inability to pay Appellant pleading guilty to ar- son after setting fi re at behest of homeowners who then received benefi t of $81,000 in payments from insurance company for re- sulting losses. Off ender 22-years old with no assets, no employable skills and surviving on public as- sistance and private charity. Sen- tencing judge imposing $40,500 restitution order on appellant as "free standing" order to act as civil judgment against him. Sen- tencing judge erred by failing to consider appellant's inability to pay when making order. Sentenc- ing judge also erred by failing to consider insurance company's loss attributable mainly to homeown- ers who did not have restitution orders imposed against them. Restitution order set aside. Insur- ance company properly viewed as victim of arson designed to recoup insurance funds. Insur- ance company is "person" who has experienced "loss" of "prop- erty" and restitution order can be made under s. 738(1) in favour of insurance companies. Issues about quantifi cation of restitu- tion orders to refl ect only losses to insurance companies that are proximate to off ence left to future cases as restitution order set aside on other grounds here. R. v. Popert (Feb. 2, 2010, Ont. C.A., Laskin, Sharpe and Gillese JJ.A., File No. C46852) 86 W.C.B. (2d) 473 (17 pp.). LT PAGE 15 Starting from $62.50 per month More value for your money! 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