Law Times

Law times • OctOber 6/13, 2008 CaseLawLaw SUPREME COURT OF CANADA Young Persons SENTENCE Threshold for demonstrating Accused young person pleaded guilty to numerous charges un- der Youth Criminal Justice Act ("YCJA") and Criminal Code. Pursuant to s. 39(1)(c) of YCJA, accused was sentenced to 200 days in secure custody, followed by 100 days of community su- pervision. In finding that young person had "a history that in- dicates a pattern of findings of guilt", judge considered of- fences for which young person was being sentenced as part of relevant "history", in addition to numerous earlier findings of guilt. Court of Appeal upheld sentence, agreeing that all of- fences, including those currently before court and not just indict- able offences, could be consid- ered. Accused appealed. Appeal dismissed. Only findings of guilt entered prior to commission of offence for which young person is being sentenced are to be con- sidered for purpose of s. 39(1) (c). Section 39(1)(c) does not specify threshold number for establishing "pattern of findings of guilt", nor does it require similarity, however similarity may be relevant to identifying pattern of criminal behaviour. Unless sentencing court finds offences are so similar that pat- tern can be found in only two convictions, threshold for dem- onstrating "pattern of findings of guilt" is at least three prior convictions. Prior findings of guilt do not however, need to be related to similar, or to in- dictable, offences. R. v. C. (S.A.) (July 31, 2008, S.C.C., McLachlin C.J.C., LeBel, Des- "pattern of findings of guilt" is at least three prior convictions champs, Fish, Abella, Charron and Rothstein JJ., File No. 32104) Ap- peal from 73 W.C.B. (2d) 824 dis- missed. Order No. 008/218/120 (33 pp.). FEDERAL COURT OF APPEAL Civil Procedure Motions judge ordered respon- dents' application for judicial re- view of fees charged by Minister of Citizenship and Immigration pursuant to Immigration and Refugee Protection Regulations (Can.), converted to action and for action to be certified as class action. Respondents sought to initiate class action on behalf of those who paid processing fees proscribed by impugned regula- tions and thus charged by Depart- ment of Citizenship and Immigra- tion with respect to various visas. Respondents sought partial refund and declaratory relief on basis that Federal Crown made profit on service, rendering impugned regulations contrary to provisions of Financial Administration Act (Can.). Originating leave applica- tion commenced pursuant to s. 72(1) of Immigration and Refugee Protection Act (Can.), which only questioned vires of single regula- tion, was not sufficiently broad to encompass individuals affected by one of over 40 other regula- tions. No problem in principle with conversion prior to final disposition of application for ju- dicial review. Appeal allowed in part by limiting class of plaintiffs to consist of individuals covered by leave application, without prejudice to right of respondents or some other person on behalf CLASS ACTIONS Originating leave application which only questioned vires of single regulation not sufficiently broad to encompass individuals affected by other regulations PAGE 21 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. of remainder of proposed class to apply for leave for judicial review and to be added into certified class as limited by judgment. Hinton v. Canada (Minister of Citi- zenship and Immigration) (June 13, 2008, F.C.A., Linden, Nadon and Sexton JJ.A., File No. A-11-08) Ap- peal from 164 A.C.W.S. (3d) 22; 67 Imm. L.R. (3d) 61 was allowed in part. Order No. 008/184/348 (32 pp.). Human Rights Legislation HUMAN RIGHTS COMMISSION No basis to interfere with deci- sion upholding Canadian Human Rights Commission's decision that it was without jurisdiction to en- tertain appellant's two complaints of religious discrimination by not allowing her to divert her union dues to Roman Catholic Church because she opposed her union's support of same-sex rights. Comstock v. P.S.A.C. (May 28, 2008, F.C.A., Linden, Nadon and Sexton JJ.A., File No. A-216-07) Appeal from 156 A.C.W.S. (3d) 887; 310 F.T.R. 277 dismissed. Order No. 008/176/085 (5 pp.). Immigration CONSULTANTS Decision finding Regulations regarding immigration consultants not ultra vires was upheld on appeal After consultation with Citizenship and Immigration Canada ("CIC"), Canadian Society of Immigration Consultants ("CSIC") was formed to provide interim funding and seek amendment to Immigration and Refugee Regulations to recognize members of CSIC as authorized to advise, consult with and repre- sent, for a fee, individuals involved in immigration proceedings before administrative decision-makers. Minister of Immigration took ac- tive role in creation, early nurturing, and monitoring of CSIC. Minister entered into "Contribution Agree- ment" which included grant to defray legal costs associated with incorporation of CSIC, and loan to cover initial operational costs. CSIC required to report progress and provide financial statements. Contribution Agreement provided that CIC monitoring of CSIS to continue until loan paid off, which was to be no later than 12 months after CSIC reported to CIC that it had 3,000 registered members. Reviewing judge held that Regu- lations not ultra vires. Law Soci- ety's appeal dismissed. Regulatory scheme does not deprive CSIC of independence of Executive in ways that improperly impinge on ability of immigration consultants to ad- vise and represent clients. Appro- priate for Minister to be involved in process of tackling the serious public policy issues presented by unregulated immigration consul- tants. Broad language of enabling provision authorized making of regulations with very subject-mat- ter of Regulations in dispute. No basis for concern that regulatory scheme jeopardizes confidentiality of information covered by solici- tor-client privilege by subjecting law firm employees to demands for disclosure by CSIC. CSIC and LSUC could co-operate when ma- terial protected by solicitor-client privilege is relevant to investiga- tion being conducted by CSIC of one of its members employed by a law firm. Enabling provision impliedly authorized particular sub-delegation effected by Regula- tions. Desirability of maintaining distance between Executive and regulation of profession by inde- pendent regulatory body sufficient to displace presumption against sub-delegation. Law Society of Upper Canada v. Can- ada (Minister of Citizenship and Im- migration) (July 18, 2008, F.C.A., Sexton, Blais and Evans JJ.A., File No. A-57-07) Appeal from 154 A.C.W.S. (3d) 444; 59 Imm. L.R. (3d) 179; 58 Admin. L.R. (4th) 293; [2007] 4 F.C.R. 132; 307 F.T.R. 141 dismissed. Order No. 008/224/067 (31 pp.). REFUGEE STATUS Application judge erred in Application judge erred in declar- ing invalid ss. 159.1 to 159.7 of Immigration and Refugee Protec- tion Regulations (Can.), and Safe Third Country Agreement as ultra vires enabling legislation, s. 102 of Immigration and Refugee Protec- tion Act (Can.) ("IRPA"), and as violating ss. 7 and 15 of Canadian Charter of Rights and Freedoms. Regulations at issue implement- ed into domestic law Safe Third Country Agreement between Canada and United States where- by if refugee entered Canada from United States at land border point of entry, Canada would, subject to specified exceptions, send refugee back to United States. Appropri- ate standard of review applicable to vires issue in respect of Governor- In-Council's ("GIC") decision to designate United States as safe third country was correctness. It was not open to application judge to hold on any of alleged grounds that designation of United States as safe third country and related Regulations were outside authority of GIC of that Safe Third Country Agreement between Canada and United States was illegal. Further, record did not support application judge's conclusion that GIC was in breach of its obligation to conduct ongoing review mandated by s. 102(3) of IRPA. Finally, there was, in this case, no factual basis upon which to assess alleged Charter breaches. Charter challenge should not have been entertained. Canadian Council for Refugees v. Canada (June 27, 2008, F.C.A., Richard C.J., Noel and Evans JJ.A., File No. A-37-08) Appeal from 162 A.C.W.S. (3d) 813; 317 F.T.R. 246; 69 Imm. L.R. (3d) 163 allowed. Order No. 008/198/078 (71 pp.). declaring invalid ss. 159.1 to 159.7 of Immigration and Refugee Protection Regulations (Can.) and Safe Third Country Agreement Limitations CROWN Assessment of costs was not barred by s. 32 of Crown Liability and When the entire firm has the same goal, success comes naturally. Une équipe avec un objectif commun : le succès dans la poche! SMSS.COM CHARLOTTETOWN FREDERICTON HALIFAX MONCTON SAINT JOHN ST. JOHN'S Untitled-10 1 www.lawtimesnews.com 11/6/07 3:56:47 PM

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