Law Times

Law Times • augusT 21, 2017 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Evidence HEARSAY Principled approach Hearsay statement of former co-accused implicating accused not meeting reliability requirement Accused was convicted of two counts of first degree murder. Trial judge admitted hearsay statement from former co-ac- cused T which implicated ac- cused in murder. Court of Ap- peal ruled that statement should not have been admitted as reli- ability requirement was not met as there was nothing to provide circumstantial guarantee of trustworthiness to T's evidence. Statements made by accused to T did not provide circumstan- tial guarantee of trustworthi- ness required to permit admis- sion of such highly prejudicial statements from witness who had given many contradictory statements. Court of Appeal va- cated convictions and ordered new trial. Crown appealed. Appeal dismissed. Court of Appeal was correct in finding that trial judge erred by admit- ting statement for failing to meet reliability threshold. Trial judges can rely on corrobora- tive evidence to conclude that threshold reliability of hearsay statement is established under certain circumstances where it overcomes specific hearsay dangers presented by statement to be tendered. Evidence, when considered as whole, must show that in circumstances only like- ly explanation for hearsay state- ment was that declarant was truthful about material aspects relied upon for truth of their contents. Trier of fact could not adequately test trustworthiness of T's statement, and there were no circumstances or corrobora- tive evidence showing statement was inherently trustworthy so it should not have been admitted. R. v. Bradshaw (2017), 2017 CarswellBC 1743, 2017 Car- swellBC 1744, 2017 SCC 35, 2017 CSC 35, McLachlin C.J.C., Abel- la J., Moldaver J., Karakatsanis J., Wagner J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellBC 1168, 2015 BCCA 195, Neilson J.A., Bennett J.A., and Garson J.A. (B.C. C.A.). Federal Court of Appeal Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Appeal Division reasonably refusing to rescind leave decision in absence of new material fact Applicant unsuccessfully ap- plied for disability benefits un- der Canada Pension Plan. Ap- plicant's appeal was dismissed by General Division of Social Security Tribunal. Applicant was denied leave to appeal by Appeal Division of Tribunal. Applicant's application to re- scind or amend leave decision, supported by affidavit of his daughter and letter from family physician, was refused by Ap- peal Division. Applicant applied for judicial review. Application dismissed. Appeal Division reasonably determined that ap- plicant's additional evidence did not present new material fact. Daughter's evidence detailing applicant's current condition did not relate to his condition as of his minimum qualifying period which was date on which applicant had to establish that he suffered from severe and prolonged disability. Physician's letter was virtually identical to earlier report that had been considered by General Division in dismissing appeal. Appeal Division reasonably refused to rescind or amend leave decision as applicant had failed to satisfy test set out in s. 66(1)(b) of De- partment of Employment and Social Development Act. Ap- plicant's alternative request for extension of time to file applica- tion for judicial review of actual leave decision was not prop- erly before court, as it had to be brought before Federal Court. It was inappropriate to transfer such request to Federal Court as requests for extensions of time were properly made in separate motion rather than by way of al- ternative remedy in application for judicial review. Gholipour v. Canada (At- torney General) (2017), 2017 CarswellNat 2171, 2017 FCA 99, J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and David G. Near J.A. (F.C.A.). Application for judicial review struck as applicant already granted hearing de novo General Division of Social Se- curity Tribunal (GD) deter- mined that applicant was not eligible for CPP disability ben- efits. Appeal Division of Social Security Tribunal (AD) allowed leave to appeal but determined that ground alleging errone- ous finding of fact had no rea- sonable chance of success, that AD could not consider new evidence prepared after hearing before GD, that leave decision had restricted grounds of appeal to five errors of law, and that ap- plicant's appeal succeeded on grounds that GD erred in law and referred matter back to GD for de novo hearing. Applicant brought application for judi- cial review of AD's analysis of scope of appeal. Crown brought motion to strike application. Motion granted; application dismissed. Whether applicant's appeal was inappropriately limited would have no bearing on ultimate entitlement to ben- efits as applicant was already granted hearing de novo before GD. Issue of whether AD had authority to limit scope of ap- peal was purely academic. It was preferable to determine issue in genuine adversarial context. In light of referral back, lack of live controversy between par- ties that would affect applicant's entitlement to benefits, and aca- demic nature of relief sought, matter was moot and it would be uneconomical use of judicial resources to allow application to proceed. Cardin v. Canada (Attor- ney General) (2017), 2017 Car- swellNat 3441, 2017 FCA 150, Wyman W. Webb J.A., David G. Near J.A., and Donald J. Rennie J.A. (F.C.A.). Federal Court Immigration and Citizenship EXCLUSION AND REMOVAL Inadmissible classes Pakistan citizen inadmissible to Canada because husband employed with Pakistan's military Foreign national (FN) was citi- zen of Pakistan who applied for permanent residence as mem- ber of investor class. FN dis- closed that her spouse had been employed with Pakistan's mili- tary between 1976 and 2000 and had achieved rank of Lieutenant Colonel. Immigration officer denied FN's application on ba- sis that spouse was inadmissible to Canada due to reasonable grounds to believe he had been complicit in and participated in crimes against humanity. FN brought application for ju- dicial review. Application dis- missed. Officer's decision was reasonable. Officer's conclu- sion that there were reasonable grounds to believe spouse had directly participated in acts that amounted to torture, and that such acts constituted offences referred to in ss. 4 to 7 of Crimes Against Humanity and War Crimes Act, was not unreason- able. Admission given by spouse during interview was both com- pelling and credible. Even if evidence relied upon by officer left open reasonable doubt as to whether spouse had in fact committed acts of torture de- scribed in decision, that would not preclude or be inconsistent with conclusion that there were reasonable grounds to believe spouse had committed those acts. Officer's conclusion with respect to spouse's complicity in human rights abuses, includ- ing torture, was not unreason- able. That conclusion fell within range of possible, acceptable outcomes that were defensible in respect of facts and law. De- cision as whole fit comfortably within principles of justifica- tion, transparency, and intelli- gibility. Khan v. Canada (Minister of Citizenship and Immigra- tion) (2017), 2017 CarswellNat 692, 2017 CarswellNat 693, 2017 FC 269, 2017 CF 269, Paul S. Crampton C.J. (F.C.). REFUGEE PROTECTION Appeal or redetermination of claim Applicant neither Convention refugee nor person in need of protection 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. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. 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