Law Times

Law Times • sepTember 17, 2012 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. COURT OF CANADA SUPREME Accused charged with second degree murder. Accused shot deceased in chest with handgun from distance of five feet. Accused testified that he did not intend for gun to go off. Accused had developmental disabilities. Trial judge rejected accused' may apply even where accused may be impaired Common sense inference Mens Rea MURDER and inferred that he intended reasonable consequences of his actions. Accused convicted and conviction upheld by Court of Appeal. Appeal dismissed. Trial judge was entitled to consider "common sense inference" that accused intended natural conse- quences of his actions. Common sense inference may apply even where accused may be impaired. Trial judge properly considered evidence bearing on accused' s evidence awareness of consequences of his actions before reverting to common sense inference. R. v. Walle (July 27, 2012, S.C.C., McLachlin C.J.C., Deschamps, Fish, Rothstein, Cromwell, Mol- daver and Karakatsanis JJ., File No. 34080) Decision at 93 W.C.B. (2d) 638 was affirmed. 101 W.C.B. (2d) 459 (41 pp.). s Sentence Two accused were convicted of offences and given sentences to be followed by order of probation. Both accused committed further offences before their sentences expired and received further sen- tences of incarceration bringing their total sentence to more than Criminal Code does not retroac- tively invalidate probation orders PROBATION three years. Accused argued that their probation orders became retroactively invalid because Criminal Code provides that probation can only be ordered in combination with sentence of two years or less. Court of Appeal affirmed probation orders. Appeal dismissed. Section 731(1) (b) of Criminal Code does not retroactively invalidate proba- tion orders that validly attached to sentence of two years or less. Where probation order becomes inappropriate because of imposi- tion of intervening lengthy term of imprisonment offender may apply for its termination. Sentenc- ing courts may impose probation when imposing sentence of two years or less on offender serving other sentences but must make unexpired prior sentences impor- tant consideration in assessing appropriateness of probation. R. v. Knott (July 31, 2012, S.C.C., McLachlin C.J.C., Deschamps, Fish, Abella, Rothstein, Moldaver and Karakatsanis JJ., File No. 33911) Decision at 90 W.C.B. 2(d) 689 affirmed. 101 W.C.B. (2d) 481 (25 pp.). COURT OF APPEAL FEDERAL Appeal Appeal by accused, who was Canadian citizen being held in United States prison, from court decision that dismissed his application for judicial review of decision of Minister of Public Safety and Emergency Prepared- ness. Minister denied accused' Decision did not comply with statutory requirement that Minister give reasons GROUNDS application, that was made under International Transfer of Offend- ers Act (Can.), to serve remainder of his prison sentence in Canada. These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. Court found Minister's decision to be reasonable and upheld it. Appeal allowed. Judgment set aside. Accused' judicial review of Minister's deci- s application for sion was allowed. Decision was set aside and matter was remit- ted back to Minister to decide on transfer request in accordance with reasons of this decision. Standard of review was reason- ableness. Minister disagreed with advice provided by Correctional Service of Canada that accused was not likely to commit act of organized crime. In Minister' view likelihood that accused would commit act of organized crime outweighed positive fac- tors. Minister failed to answer two questions. First was on what basis Minister departed from CSC's advice. Second was how Minister assessed relevant fac- tors so that factors which did not favour accused' s weighed those which favoured his return. In this case, where there were factors that supported trans- fer, Minister had to demonstrate some assessment of competing factors so as to explain why he refused to consent to transfer. Without such assessment Min- ister' because it was neither justified, transparent and intelligible. Nor did it comply with statutory requirement that Minister was to give reasons. Lebon v. Canada (Minister of Public Safety & Emergency Preparedness) (Apr. 27, 2012, F.C.A., Letour- neau, Sharlow and Dawson JJ.A. File No. A-351-11) Decision at 97 W.C.B. (2d) 296 was reversed. 101 W.C.B. (2d) 465 (14 pp.). s decision was unreasonable Taxation s Appellant foundation was chari- table foundation and registered charity. Appellant had single Public foundation had to have more than one trustee INCOME TAX s return out- trustee. All or substantially all of capital contributed to appellant trust was contributed by settlor, wife and entities controlled by them. Minister confirmed appel- lant' foundation. Minister concluded appellant could not qualify as public foundation because trustee could not satisfy arm' s designation as private trustee requirement. Appeal was dismissed. Minister correctly designated appellant to be private foundation. As long as appellant had single trustee, appellant could not be public foundation. Parlia- ment in definition in s. 149.1 of Income Tax Act (Can.), signaled intention that there had to be more than one trustee of public founda- tion. Review of legislative context and purpose supported interpreta- tion that public foundation had to have more than one trustee. Sheldon Inwentash and Lynn Factor Charitable Foundation v. Canada (May 4, 2012, F.C.A., Dawson, Trudel and Stratas JJ.A., File No. A-235-11) 216 A.C.W.S. (3d) 502 (25 pp.). s length FEDERAL COURT Immigration Application for judicial review of decision of board determining that applicant was neither Con- vention Refugee nor person in need of protection pursuant to ss. 96 and 97 of Immigration and Refugee Protection Act (Can.). Applicant was Tamil farmer from North of Sri Lanka. Applicant was detained, interrogated and physically abused by army. Appli- cant' Board took notice of facts that were obviously not on record PERSON IN NEED OF PROTECTION unlawful detention and was subsequently murdered. Board found that applicant' s uncle complained about s fear was not well-founded. Application granted. Board failed to notify applicant pursuant to s. 170 of Act and Rule 18 of Refugee Protection Division Rules (Can.). Board took notice of facts that were obvi- ously not on record. Applicant was not afforded opportunity to make submissions regarding fact that he supposedly was able to leave country. Failure constituted breach of natural justice. Nadarajah v. Canada (Minister of Citizenship and Immigration) (May 31, 2012, F.C., Scott J., File No. IMM-6748-11) 216 A.C.W.S. (3d) 439 (15 pp.). Application for judicial review pursuant to s. 72(1) of Immigra- tion and Refugee Protection Act (Can.), of decision of board deter- mining that applicants were not Convention Refugees or persons in need of protection. Applicants were married man and woman and their three children. Appli- cants fled Democratic Republic of Congo ("DRC") because they feared persecution by govern- ment and military. Principal applicant claimed that because he was preacher, he was detained and tortured. Board made nega- tive credibility findings against principal applicant. Application allowed. Matter was sent back for reconsideration by different panel of board. Board failed to rule on fundamental aspect of applicants' claim, misstated evidence and relied on answer to question that was not asked. Munganga v. Canada (Minister of Citizenship and Immigration) (June 1, 2012, F.C., Simpson J., File No. IMM-4530-11) 216 A.C.W.S. (3d) 442 (11 pp.). Board failed to rule on fundamen- tal aspect of applicants' claim Application for judicial review, Consultant's conduct amounted to incompetence SELECTION AND ADMISSION PAGE 17 Heydary-2-LT_Apr2-12.indd 1 www.lawtimesnews.com 12-03-29 8:43 AM

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