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PAGE 16 CaseLawLaw FEDERAL COURT OF APPEAL Parole DAY PAROLE Inmate could reapply for day parole six months after refusal of similar request Accused appealed order which upheld another order striking his statement of claim as abuse of process. Accused convicted of sexual offences in 1971 and subsequently declared danger- ous offender. Statement of claim requested declaration that s. 122(4) of Corrections and Con- ditional Release Act, S.C. 1992, c. 20 ("CCRA"), entitled inmate to reapply to National Parole Board ("NPB") for day release six months after NPB had re- fused similar request. Board re- jected accused's application for day parole on ground that s. 123(5) of CCRA provided that inmate could not reapply for day parole within two years of previ- ous refusal. In July 2008 Federal Court decision of Dixon v. Can- ada (Attorney General) (2008), 80 W.C.B. (2d) 552 (F.C.), held that inmate whose application for day parole had been dis- missed by NPB could reapply six months later. Dixon v. Canada had not been appealed by Attor- ney General. Appeal dismissed. NPB bound by interpretation in Dixon and accused's case was indistinguishable. Accused had obtained relief he was seeking therefore appeal was moot. As- tonishing and disturbing that Crown counsel did not bring decision in Dixon to attention of the Court even though it had been decided five months before Crown's memorandum of fact and law was signed. In unusual circumstances of appeal accused awarded reasonable expenses of $400. Latham v. Canada (Mar. 16, 2009, F.C.A., Evans, Ryer and Trudel JJ.A., File No. A-429- 08) Order No. 009/096/148 (5 pp.). Social Welfare CANADA PENSION PLAN Applicant's left lateral epicondylitis was not prolonged or severe disability Applicant was left-handed. Ap- plicant had left lateral epicon- dylitis. Workers' Compensation Board Appeal Tribunal ("WCB") awarded applicant temporary wage loss benefits for specified period and lump sum. WCB did not accept applicant's com- pensable injury was disabling after specified date. Applicant's claim under Canada Pension Plan ("CPP") was denied. Board found applicant did not qualify for disability benefits under Plan. Board found applicant did not have prolonged or severe disabil- ity within meaning of s. 42(2) (a) of CPP. Application for judi- cial review was dismissed. There was leading medical evidence on applicant's condition and con- clusive evidence on lack of em- ployment efforts allowed board to conclude as it did. Board ap- plied correct legal test. Decision fell within range of acceptable outcomes. Erickson v. Canada (Minister of Human Resources and Skills Development) (Feb. 25, 2009, F.C.A., Desjardins, Letourneau and Trudel JJ.A., File No. A-442- 08) Order No. 009/084/043 (7 pp.). FEDERAL COURT Citizenship QUALIFICATIONS Dismissal of citizenship application for failure to meet residence requirements was upheld on appeal Appeal from decision of Citi- zenship Judge dismissing appli- cant's citizenship application on ground that he did not meet res- idence requirements contained in s. 5(1)(c) of Citizenship Act (Can.). Applicant was citizen of Senegal who came to Canada on August 8, 2002 and who ap- plied for Canadian citizenship June 8, 2009 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 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 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. September 8, 2005. After ap- plication for citizenship was filed applicant left Canada to pursue employment opportunities in United States and United King- dom. On April 17, 2006 appli- cant was questioned by United States Immigration Officers who noted that applicant was in possession of United States tax forms and employment records for two United States compa- nies indicating he had worked in United States in 2000, 2004 and 2005 and that applicant did not deny he had worked il- legally in United States during that time. Applicant and his extended cousin alleged that in regards to tax forms and United States employment records for 2004 and 2005, that his cousin used applicant's name and docu- ments fraudulently in order to work in United States during material time of applicant's resi- dence in Canada. Applicant's application for citizenship was refused because his physical pres- ence in Canada did not meet legal requirement of 1,095 days during relevant time period and because of contradictions and deficiencies found in his file. As preliminary objection ap- plicant's counsel submitted that Citizenship Judge violated Can- ada Evidence Act ("CEA"), and rules of evidence in admitting hearsay evidence resulting from Field Operations Support Sys- tems ("FOSS") made by United States and Canadian Immigra- tion Officers. Applicant further contended that Citizenship Judge did not provide adequate reasons in decision or ignored or misapprehended evidence and failed to assess whether he had centralized his mode of living in Canada. Appeal dismissed. Sec- tions 30(1), (12) and 31(2) of CEA permitted evidence. FOSS notes were admissible as infor- mation appearing in file which judge could take cognizance of. Officer was entitled to rely upon information that appeared in file even though it was information provided by applicant to another officer. Accordingly Citizenship Judge was entitled to consider this type of evidence. Applicant's explanations and his allegations of fraudulent use of his person- ally named documents by his cousin were so incredible in cir- cumstances that judge could not possibly believe they were true. Citizenship Judge gave valid rea- sons to support his decision and contrary decision would have been illogical and contrary to facts. With respect to contention that Citizenship Judge did not consider whether applicant had centralized his mode of living in Canada, Citizenship Judge was free to choose either test of phys- ical presence or mode of living if it were justified on facts. Citizen- ship Judge's decision stands on contradictions, omissions, and implausibility of evidence and insufficient physical presence in Canada of applicant during rel- evant time frame. Decision fell within range of possible, accept- able outcomes based and was not unreasonable. Dieng v. Canada (Minister of Citizenship and Immigration) (Mar. 4, 2009, F.C., Frenette D.J., File No. T-627-08) Order No. 009/092/233 (13 pp.). Constitutional Law CHARTER OF RIGHTS Guantanamo Bay detainees could not assert s. 7 Charter rights in circumstances Applicants sought disclosure of documents from respondent for purpose of assisting applicants in habeas corpus petitions pend- ing in United States. Neither applicant was Canadian citizen. Applicants were persons of inter- est as result of activities within Canada. Applicants alleged they were subjected to torture while detained in Guantanamo Bay. Applicants were interviewed in Guantanamo Bay by Canadian officials. Information was passed by Canadian officials to United States authorities. Respondent refused to comply with appli- cants' request for disclosure. Ap- plication for judicial review was dismissed. Canadian Charter of Rights and Freedoms applied to conduct of officials. Applicants could not assert s. 7 Charter rights in circumstances. Appli- cants did not establish nexus to Canada that would engage s. 7 Charter rights as they related to Guantanamo interviews. It could not be said Canada participated in process contrary to interna- tional law obligation. Comity was to be respected. Slahi v. Canada (Minister of Justice) (Feb. 16, 2009, F.C., Blanchard J., File No. T-1477- 08; T-1501-08) Order No. 009/063/022 (22 pp.). Contempt Of Court GROUNDS Respondent in contempt of order to provide information and documents Applicant obtained order requir- ing respondent to comply with requirement to provide informa- tion and documents relating to assets and liabilities. Applicant sought order that respondent was in contempt of court. Ap- plication was allowed. Respon- dent was personally served with show cause order. Respondent was served with documents. Re- spondent did not satisfy terms of order. Letter did not provide material sought to be produced by compliance order. It was for applicant to assess whether letter satisfied compliance order. M.N.R. v. Cunliffe (Feb. 19, 2009, F.C., Heneghan J., File No. T-841-08) Order No. 009/084/027 (18 pp.). Privacy Legislation GENERAL Mere attempt to collect personal information did not constitute violation of Personal Information Protection and Electronic Documents Act (Can.) Application pursuant to s. 14 of Personal Information Protection and Electronic Documents Act (Can.), for judicial review of de- cision of Privacy Commissioner that respondents M., who was vice president of J. and J. real es- tate brokerage, had not improp- erly collected his personal infor- mation. Respondent M.'s sister was family lawyer who had rep- resented applicant's wife in con- tentious family law dispute and Your next best move? SMSS.COM CHARLOTTETOWN StewartMck_LT_Apr27_09.indd 1 Choose to have our IT expertise in your corner. FREDERICTON www.lawtimesnews.com HALIFAX MONCTON SAINT JOHN ST. JOHN'S 4/22/09 10:20:41 AM

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