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PAGE 14 CASELAW 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. FEDERAL COURT Citizenship APPEAL consider request for extension of time Appeal of citizenship judge' Breach of procedural fairness for citizenship judge not to explicitly sion denying citizenship applica- tion based on prohibition related to criminal charges in s. 22(1)(b) of Citizenship Act (Can.). On November 1, 2004, applicant filed application for Canadian citizen- ship. On May 31, 2006, applicant was charged with offences under Criminal Code (Can.), specifical- ly conspiracy to commit indict- able offence, fraud over $5,000, possession of property obtained by crime, commission of offence for criminal organization. On August 10, 2010, Citizenship and Immigration Canada ("CIC") mailed applicant Request for Court Information Sheet or Certificate of Conviction to assess whether applicant was now pro- hibited from becoming Canadian citizen. On September 14, 2010, citizenship judge hand delivered second request. Applicant had 60 days from date of initial request to comply, but failed to do so. On October 7, 2010, applicant and his counsel prepared a request for a 90-day extension of time to file materials and fulfill criminal- ity requirements of Act. In this request he noted that some of charges had been withdrawn and his criminal counsel was seek- ing to stay proceedings for delay based on s. 11(b) of Canadian Charter of Rights and Freedoms. According to courier company, Fedex, request and supporting documents were received on October 13, 2010. Regardless, in short letter dated same day, citizenship judge denied citizen- ship application, citing criminal charges and failure to comply with requests for additional infor- s deci- mation. Citizenship judge con- sidered whether he should make favourable recommendation to Minister to exercise discretion under s. 5(3) and (4), but after reviewing applicant' found that this was not warranted in circumstances. Request for extension of time was not referred to in citizenship judge' s submissions Appeal allowed. It was breach of procedural fairness for citizen- ship judge not to explicitly con- sider request for extension of time to provide further information in denying citizenship applica- tion on basis of criminal charges under s. 22(1)(b) of Act. Eze v. Canada (Minister of Citizenship and Immigration) (Jan. 24, 2012, F.C., Near J., File No. T-122-11) 213 A.C.W.S. (3d) 273 (9 pp.). s letter. Constitutional Law Application for judicial review of denial of refugee claim. Applicant was adult male citizen of Saint Vincent and Grenadines who entered Canada in 2007 on visi- tor visa, overstayed his visa and remained in Canada, without status, since that time. Applicant was hospitalized in July 2009 after losing his eyesight and memory. Applicant was diagnosed with benign tumor that was surgi- cally CHARTER OF RIGHTS Return to St. Vincent will not endanger applicant' s life that he would require daily doses of certain medicines for rest of his life and would require occa- sional testing to determine if the tumor had recurred. Applicant filed refugee claim in September 2009 on grounds that he faced risk to his life were he to return to Saint Vincent, in that he would be unable to access adequate medi- cal treatment there. In September 2010, applicant filed application for permanent residence based on humanitarian and compas- sionate ("H&C") grounds, which removed. Evidence was These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. remains outstanding, on basis that he would be unable to afford life sustaining medication were he to be returned to Saint Vincent. Applicant' tection was scheduled for hearing September 17, 2010. At request of his counsel, this hearing was adjourned to March 2011. In February 2011, applicant' s claim for refugee pro- sel again requested adjournment on basis that applicant had raised Charter issue as to whether s. 97(1)(b)(iv) of Immigration and Refugee Protection Act (Can.), was unconstitutional in that it violated applicant' s coun- and security of person under s. 7 of Canadian Charter of Rights and Freedoms and his right to equality under s. 15(1) of Charter, and whether these violations could be justified under s. 1 of the Charter. Applicant also con- tended that board should wait until applicant' s rights to life was determined. Board refused adjournment, finding that there were no exceptional circumstanc- es to warrant delay and that deny- ing adjournment would not cause any prejudice to refugee protec- tion claim. Hearing was held on March 22, 2011, and applicant' s H&C application refugee claim was rejected. Board found that applicant would not be denied medical treatment or be discriminated against in respect of medical s Vincent. Application dismissed. Section 97(1)(b)(iv) does not discriminate treatment in Saint individually or as member of particular class. While in Canada he suffered no discrimination, if removed to Saint Vincent he will not suffer risk to life. There was no violation of s. 15 of Charter. With respect to s. 7 of Charter, applicant has not been deprived of right to life because his refugee claim was determined without postponement until H&C appli- cation was determined. Return to Saint Vincent will not endanger his life. Section 7 did not impose positive obligation on board to against applicant adjourn its hearing until determi- nation of H&C application. Laidlow v. Canada (Minister of Citizenship and Immigration) (Feb. 3, 2012, F.C., Hughes J., File No. IMM-3383-11) 213 A.C.W.S. (3d) 444 (20 pp.). Crown Applicant was veteran of Canadian Armed Forces. Board found applicant was not entitled to pension because applicant' Significance of timeline and proximity to military service not adequately considered ARMED FORCES condition was not attributable to or incurred during service in special duty area. Application for judicial review was allowed. It was unreasonable for board to conclude applicant' was not incurred during mili- tary service in special duty area. Significance of timeline in ques- tion and proximity to applicant' s condition military services in special duty area were not adequately consid- ered by board. Carnegie s General) (Jan. 24, 2012, F.C., Near J., File No. T-589-11) 213 A.C.W.S. (3d) 348 (15 pp.). v. Canada (Attorney Immigration INADMISSIBLE AND REMOVABLE CLASSES Application for judicial review of denial of refugee claim. Applicant was citizen of Colombia who lived in United States from 1987 to 2003. He returned to Colombia to support his ill father and was targeted for extortion for wealth he was perceived to have acquired in United States. He tried to open business in Colombia but was accused of being informant. He fled to United States in 2004, lived there until 2008, and then left for Canada where he made refu- Factors such as rehabilitation should not be considered in evaluating seriousness of offence s gee claim. Panel of Immigration and Refugee Board dismissed applicant' was excluded from protection for having committed serious, non- political crime in United States. In 1991, applicant was convicted of trafficking in cocaine. In Canada, maximum punishment for that offence would be life imprison- ment. Applicant contended that he had been rehabilitated since he committed crime, however, board concluded that rehabilitation was not relevant consideration. Sole question before it was whether applicant had been convicted of crime that could be characterized as "serious, non-political crime" s claim on basis that he Application dismissed. There was no basis on which to overturn board' . concluded that rehabilitation was not relevant factor in determin- ing whether refugee applicant was excluded on basis of "serious, non-political crime" s decision. Board correctly simply determine whether crime was committed, and whether it was "serious non-political crime" Certified question was stated When applying article 1F(b) of United Nations Convention relating to Status of Refugees, is it relevant for Refugee Protection Division of Factors extraneous to conviction, such as rehabilitation, should not be considered in evaluating seriousness of applicant' . s offence. Refugee Board to consider fact that refugee claimant has been rehabilitated since commission of crime at issue. Cuero v. Canada (Minister of Citizenship and Immigration) (Feb. 9, 2012, F.C., O'Reilly J., File No. IMM-2880-11) 213 A.C.W.S. (3d) 432 (7 pp.). Immigration and Industrial and Intellectual Property Made no sense for court to render decision that would have no practical effect PATENTS . Board must June 25, 2012 • Law Times Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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