Law Times

Law Times • apriL 2, 2012 nature of risks applicants faced Application for judicial review of denial of request for deferral of removal until humanitarian and compassionate ("H&C") and pre- removal risk assessment ("PRRA") applications were processed. Applicants were Tamil citizens of Sri Lanka. Principal applicant, her two children and her husband arrived in Canada in September 2004 and were granted tempo- rary resident status. Subsequently, they applied unsuccessfully for refugee status. They applied for PRRA in December 2006 which was refused. They applied for leave and judicial review of nega- tive PRRA decision, which was denied in June 2010. Husband had been charged with assaulting prin- cipal applicant and was removed from Canada in November 2010. Applicants, independently of hus- band, filed new applications for permanent residence on H&C grounds in July 2010. Their appli- cations included submissions on new risks that they alleged had not previously been assessed, includ- ing new grounds of personalized risk, new information regarding husband's family in Sri Lanka, and risks from authorities in Sri Lanka based on suspicions that principal applicant was Liberation Tigers of Tamil Eelam sympa- thizer. Applicants were scheduled for removal November 15, 2010. Applicants filed another request for PRRA on October 25, 2010. On November 1, 2010, applicants made formal request to Greater Toronto Enforcement Centre for deferral of their removal until their applications for permanent residence on H&C grounds and their new PRRAs were assessed by qualified officers. Officer acknowl- edged that new PRRA application was based on principal applicant's own circumstances, rather than on those of her former husband's. One of these new circumstances was abuse perpetrated by husband against principal applicant. Officer was not convinced that principal applicant would not be able to seek protection from Sri Lankan authorities and social agencies, or that these authorities and agen- cies would be unwilling to protect principal applicant. Officer noted that several months had lapsed since principal applicant was noti- fied of negative decisions on pre- vious applications. Officer ques- tioned why new applications were not filed until immediately before removal date. Officer was not con- vinced that sufficient new risk had been presented or that deferral of removal was warranted in cir- cumstances. Application granted. Officer not only failed to appreci- ate his own role and jurisdiction in this matter, he also failed to appre- ciate true nature of risks applicants faced in Sri Lanka and so com- mitted several egregious errors. Officer concluded that applicants could seek assistance from princi- pal applicant's family in Sri Lanka, ignoring fact that her family had fled Sri Lanka and lived in United Kingdom, except for sister who lived in Canada. Officer was selec- tive regarding evidence concern- ing protection for women in Sri Lanka, and ignored evidence that authorities did not protect women from domestic violence. Officer failed to address advice and opin- ion concerning psychological harm principal applicant (who was very vulnerable) would suffer if she had to leave Canada. This was not harm that was inherent in process of deportation. Decision was fundamentally flawed and must be returned for reconsidera- tion. Jayasundararajah v. (Minister of Public Safety and Emergency Preparedness) (Nov. 16, 2011, F.C., Russell J., File No. IMM-6584-10) 210 A.C.W.S. (3d) 488 (22 pp.). REFUGEE STATUS Refusal in not permitting applicant to provide documentation was reviewable error Application for judicial review of denial of refugee claim. Applicant was adult female citizen of Mexico who entered Canada in April 2009 as visitor and made refugee claim in May 2009. Claim was based on fear of high ranking police offi- cer who had allegedly murdered her father and also fear of her uncle who lived with her family in Mexico and was given to violent moods. Member of Immigration and Refugee Board rejected appli- cant's claim for refugee status on grounds applicant was not credi- ble and had not rebutted presump- tion of state protection. Applicant had represented herself at hear- ing before board. Assistance of Spanish/English translator was required for much of testimony. Member asked claimant whether she had ever filed any denuncia- tions naming either of two men she allegedly feared as RPD had not been provided with anything naming problems she had with those men. Applicant offered to provide further evidence as to denunciations, but member said she could not do so. This occurred at several places in the transcript. Application granted. Dismissal by member of what amounted to self- represented applicant's attempt to provide further evidence, without advising applicant or consider- ing Rule 37 of Refugee Protection Division Rules (Can.), was error in law and failure to provide due pro- cess. It was clear from member's reasons that denunciations were material to decision being made. Refusal or neglect or oversight in not permitting applicant opportu- nity to provide such documenta- tion was reviewable error. Mosqueda Costa v. Canada (Minister of Citizenship and Immigration) (Nov. 29, 2011, F.C., Hughes J., File No. IMM-3060-11) 210 A.C.W.S. (3d) 490 (8 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Judge's inferences reasonable and entitled to deference Appeal by accused from his con- viction for driving with blood alcohol level above legal limit. Issue at trial was whether it was proven beyond reasonable doubt that accused was driver of truck that was involved in accident. Accused claimed that trial judge misapprehended evidence of CASELAW Canada paramedic who treated accused and who had conversation with him. After closing submissions were made, which dealt with iden- tification issue, judge was given transcript of paramedic's evidence and she retired to consider her decision. When judge returned to give her oral decision she sum- marized evidence she considered to be relevant to identification issue. Accused conceded that dur- ing summary judge accurately set out paramedic's evidence. In his examination-in-chief paramedic said accused made statements that indicated that he drove his truck. In cross-examination paramedic said he could not say with certainty that accused said that he was driv- ing. Accused submitted that during judge's analysis of evidence she did not refer to what paramedic said in cross-examination and it was this omission that showed that she misapprehended evidence. Appeal dismissed. When judge's reasons were read as whole they demon- strated that she was aware that it was uncertain what accused said to paramedic. In her reasons she did not only consider examination-in- chief evidence. Rather, she consid- ered all of paramedic's evidence along with surrounding pieces of circumstantial evidence and she drew inferences to conclude that on the whole of evidence she was satisfied that accused was driver. Judge's inferences were reasonable and they were entitled to defer- ence. Judge did not misapprehend evidence. R. v. Arnold (Dec. 6, 2011, Ont. S.C.J., Dawson J., File No. SCA (P) 1001/11) 98 W.C.B. (2d) 570 (6 pp.). Assault ASSAULTING PEACE OFFICER Accused's minimal resistance to unlawful arrest not unreasonable Accused was arrested follow- ing search which resulted in him being charged with possession of cocaine. Accused's response to his arrest led to further charge of assaulting two police officers with intent to resist his lawful arrest. Words he is said to have uttered during subsequent strip-search at police station resulted in third charge, that of uttering threat to cause death. Accused applied to exclude evidence. Police initi- ated pat-down search of accused based on complaint that there were "druggies" in the building. Arrest not lawful, accused not guilty of assault to resist arrest, evidence of seized cocaine and accused's allegedly threatening utterances ordered excluded, all charges dis- missed. Accused's minimal resis- tance to that unlawful arrest, as described by officers, was not so disproportionate to be unreason- able. There was no basis for charge, as particularized, of assaulting both named officers "with intent to resist the lawful arrest of himself ". Simply put there was no "lawful arrest" to which accused resisted. R. v. Jarrett (Nov. 18, 2011, Ont. C.J., Green J.) 98 W.C.B. (2d) 589 (18 pp.). Evidence PRODUCTION Accused's right to make full answer and defence outweighed www.lawtimesnews.com complainant's privacy issues Application by accused, who was charged with committing buggery, indecent assault and gross inde- cency, for production of records of psychiatrist who treated com- plainant who suffered from variety of mental health issues, allowed. In first stage of this application judge was satisfied that records were necessary for accused to make full answer and defence. They were also likely relevant to issue at trial. There was lessened expectation of privacy regard- ing records because complainant spoke to others about allegations against accused. Any material that was irrelevant or that concerned third parties could be addressed through editing the records prior to production. Editing could also address potential prejudice to complainant's personal digni- ty and right to privacy. Records were therefore to be produced for court review. Court reviewed the records and determined that they were likely relevant to trial issue, namely complainant's credibility and reliability. Since complainant was only trial witness who could give first-hand testimony as to what occurred between him and accused production was necessary to enable accused to make full answer and defence. Information had probative value. Accused's right to make full answer and defence outweighed complainant's privacy issues. Production would not discourage or impact on the reporting of sexual offences and it would maintain integrity of trial process. Records were edited and production was subject to certain conditions in order to restrict their circulation. R. v. Williamson (Nov. 21, 2011, Ont. S.C.J., Tranmer J., File No. 285/10) 98 W.C.B. (2d) 618 (10 pp.). ONTARIO CIVIL CASES Appeal FINAL OR INTERLOCUTORY ORDER Depriving respondent of ability to use judge's findings of fact could deprive him of substantive rights Respondent brought PAGE 15 interlocutory motion. Motion to quash dismissed. In many circum- stances decision dismissing motion for partial summary judgment will be interlocutory because merits of claim remain to be tried, but effect of motion judge's decision was to finally determine question of issue estoppel and prevent respondent from using findings of fact made by Mosley J.. Hearing conducted by Mosley J. involved hearing of evi- dence that respondent may never be in position to call or even access. Depriving respondent of ability to use Mosley J.'s findings of fact could therefore deprive him of substan- tive rights. Finding that issue estop- pel not available was final determi- nation of that issue of law. Motion to quash dismissed. Almrei v. Canada (Attorney General) (Dec. 13, 2011, Ont. C.A., Rosenberg, Cronk and Watt JJ.A., File No. M40628 (C53707)) 210 A.C.W.S. (3d) 294 (5 pp.). Limitations PUBLIC AUTHORITIES Plaintiff 's mental health issues did not impede ability to bring claim earlier Plaintiff was arrested in July 2002 for public intoxication. Plaintiff alleged that he was assaulted by police officers during arrest. Plaintiff brought claim against police force in February 2005 for damages relat- ing to arrest. Police force brought motion to dismiss action as time- barred. Motion allowed. On both subjective and objective standard alleged assault and related events were clearly discoverable by plain- tiff and known to him in July 2002. Plaintiff 's mental health issues did not impede ability to bring claim earlier. Action was statute-barred since it was brought against public authority beyond six-month limita- tion period. Mackenzie v. Hamilton (City) (Dec. 13, 2011, Ont. S.C.J., Goodman J., File No. 958/05) 210 A.C.W.S. (3d) 527 (20 pp.). Criminal Law YOUNG OFFENDERS Accused's continued aggression could no longer be adequately addressed in youth custody Application action for damages, alleging negligent inves- tigation, false imprisonment and breaches of rights under Canadian Charter of Rights and Freedoms. Respondent, as subject of two security certificates issued under Immigration and Refugee Protection Act (Can.), held in cus- tody for many years. Mosley J. held that second certificate unreason- able. He issued lengthy public rea- sons but also gave secret reasons to which respondent never obtained access. Respondent applied for par- tial summary judgment on basis of issue estoppel, claiming par- ties bound by Mosley J.'s findings that made out elements of causes of action. Motion judge dismissed application. In doing so, he noted that respondent attempting to use doctrine of issue estoppel as sword to obtain summary judgment rath- er than traditional use as shield or defence. Attorney General sought to quash respondent's appeal, argu- ing no appeal could be taken from by Provincial Director pursuant to s. 30(4) of Youth Criminal Justice Act (Can.), for order directing that accused be temporarily detained in pro- vincial correctional centre for adults pending resolution of vari- ous prosecutions currently out- standing against him. Accused faced ten youth court charges, which involved allegations of sexual assault, and adult charges of assaulting police officer, carry- ing concealed weapon and pos- session of cannabis. Accused was presently detained in custody on strength of three remand war- rants. Accused currently aged 20. Application granted. Although accused's placement in adult cus- tody may well be deleterious to his mental health status and to his motivation, accused's continued aggression towards others could no longer be adequately addressed in youth custody. Ontario (Ministry of Children and Youth Services) v. K. (K.) (Nov. 17, 2011, Ont. C.J., Cole J.) 210 A.C.W.S. (3d) 383 (10 pp.). LT

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