Law Times

Law Times • march 12, 2018 Page 15 www.lawtimesnews.com CASELAW Supreme Court of Canada Criminal Law CHARTER OF RIGHTS AND FREEDOMS Arrest or detention [s. 10] Asking question at end of standard caution after accused invoked right to counsel violating accused's Charter rights After their relationship ended, ac- cused had non-consensual sexual intercourse with complainant. When he was arrested, accused stated he wanted to consult coun- sel. Police officer delivered stan- dard caution, which asked wheth- er accused wished to say anything. Accused said that he did not think it was rape because of prior rela- tionship. Trial judge convicted accused of sexual assault and held that there was no breach of ac- cused's right to counsel. Major- ity of Court of Appeal dismissed accused's appeal. Majority held that standard caution delivered by officer breached accused's rights under s. 10(b) of Canadian Charter of Rights and Freedoms, but found that statement should not be excluded under s. 24(2) of Charter. Breach was of minimal gravity, was at lowest end of spec- trum of violation of implemen- tational duty, and was not case of wilful or systematic violation of Charter rights. Accused appealed. Appeal allowed and new trial or- dered. Asking question at end of standard caution, after accused had invoked his right to counsel, violated police's duty to "hold off " from attempting to elicit incrimi- natory evidence until accused had reasonable opportunity to reach counsel, because it elicited state- ment from accused. Breach war- ranted exclusion of accused's state- ment under s. 24(2) of Charter, for reasons provided by dissenting Court of Appeal judge. Crown had ample opportunity to call further evidence about police service's training or policy but did not. R. v. G.T.D. (2018), 2018 CarswellAlta 288, 2018 Car- swellAlta 289, 2018 SCC 7, 2018 CSC 7, Wagner C.J.C., Abella J., Côté J., Brown J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellAlta 1549, 2017 ABCA 274, Frans Slatter J.A., Barbara Lea Veldhuis J.A., and Frederica Schutz J.A. (Alta. C.A.). Federal Court of Appeal Intellectual Property PATENTS Application for patent No mechanism to reinstate patent application after it had reached abandoned status Agents filed patent application on behalf of appellant health services company and another group. Respondent Commis- sioner on behalf of Crown identified problems in applica- tion, and requested compliance. Company did not respond, and commissioner deemed appli- cation abandoned. Error was not corrected within 12-month reinstatement period. Patent rights were assigned from group to appellant university. Both ap- pellants learned that application was abandoned in 2016. Appel- lants requested reinstatement, which was denied. Appellants unsuccessfully applied for ju- dicial revie, in Federal Court. Appellants claimed that Federal Court mischaracterized issues on judicial review. Appellants claimed that commissioner erred in refusing reinstatement. Appellants appealed from judi- cial review. Appeal dismissed. Proper procedures were followed by commissioner in deeming application abandoned. Inaction of appellants did not show nec- essary good faith. There was no mechanism to reinstate applica- tion, after it had reached aban- doned status. Commissioner properly explained process to appellants. University of Alberta v. Canada (Attorney General) (2018), 2018 CarswellNat 301, 2018 FCA 36, Wyman W. Webb J.A., David G. Near J.A., and J.B. Laskin J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 1892, 2017 CarswellNat 7401, 2017 FC 402, 2017 CF 402, James Russell J. (F.C.). Tax INCOME TAX Administration and enforcement Presumption of truth of allegations in notice of appeal not applicable where no ruling on Crown's timely request for extension of time to file reply Taxpayer appealed his reas- sessments for 2003 and 2004 taxation years in 2016 and al- leged that Minister of National Revenue never mailed notice of confirmation to him so his objection was still outstand- ing. Crown brought motion to quash appeal on basis that ap- peal was filed out of time. Tax Court judge granted motion and quashed appeal. Judge held that notice of confirmation was mailed to taxpayer in October 2009. Although Crown could not rely on s. 244(5) of Income Tax Act to prove mailing, evi- dence established that it was more likely than not that notice of confirmation was mailed to taxpayer on that date. Judge found that presumption of truth of allegations in notice of ap- peal in R. 44(2) of Tax Court of Canada Rules (General Proce- dure) had potential application where no reply had been filed in Tax Court within 60-day pe- riod and no extension of time for filing reply had been applied for or granted, or no reply had been filed within extended pe- riod for filing. Judge found that presumption in R. 44(2) of Rules did not apply because Crown had moved on timely basis for extension of time to file reply and court had not yet ruled on that request. Judge held that since last day on which request for extension of time to file no- tice of appeal could be made was in January 2011, appeal was filed out of time. Taxpayer appealed. Appeal dismissed. Judge's find- ing of fact that notice of con- firmation was most probably mailed in October 2009 was amply supported by evidence. Judge did not err in interpreta- tion of R. 44(2) of Rules. Pre- sumption of truth of allegations in notice of appeal, if reply was not filed within period speci- fied in R. 44(1) of Rules, could not operate unless Tax Court had previously rejected Crown's timely request for extension of time to file reply. Boroumend v. Canada (2017), 2017 CarswellNat 7339, 2017 FCA 245, Eleanor R. Dawson J.A., Stratas J.A., and Rennie J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 11516, 2016 CarswellNat 5681, 2016 TCC 256, 2016 CCI 256, David E.Graham J. (T.C.C. [General Procedure]). Federal Court Civil Practice and Procedure PLEADINGS Statement of claim City was taxing authority for purposes of Payments in Lieu of Taxes Act City levied property taxes against two properties owned by plaintiff property owner. Plaintiff brought action for de- claratory relief against federal Crown, claiming that city was infringing upon her right to freely dispose and be free from forced disposition of her wealth, and claiming that city was "ser- vant" of Crown within meaning of Crown Liability and Proceed- ings Act (CLP Act) and its inac- tion was tort of misfeasance in public office. Plaintiff claimed that city could only obtain property tax revenues from her properties by making applica- tion to federal Minister of Pub- lic Works and Government Ser- vices pursuant to Payments in Lieu of Taxes Act (PLT Act) and have these revenues paid out of Consolidated Revenue Fund, which city declined to do on basis that PLT Act did not apply. Crown brought motion to strike statement of claim for lack of jurisdiction and absence of rea- sonable cause of action. Motion granted. Plaintiff 's claims were meritless. Property did not meet definition of "federal property" within meaning of PLT Act. PLT Act had no application to privately-owned and controlled property. City was not "servant" of Crown within meaning of s. 3(b)(i) of CLP Act as it was not employed by Crown and did not act as agent for Crown. City was taxing authority for purposes of PLT Act, but it did not act on behalf of Crown, but for its own benefit. Claim had no chance to succeed at trial as it failed to dis- close reasonable cause of action. Joubarne v. Canada (2017), 2017 CarswellNat 7423, 2017 CarswellNat 7679, 2017 FC 1041, 2017 CF 1041, René LeBlanc J. (F.C.). Immigration and Citizenship ADMISSION Application for temporary resident or immigrant visa Officer required to identify and define child's best interests in context of permanent residence application Applicants were family who were citizens of Czech Repub- lic of Roma ethnicity, and they made failed refugee claims but were provided with three-year temporary residence permits. Applicant daughter entered into common-law relationship and had child. Applicants applied for permanent residence based on humanitarian and compas- sionate grounds, which officer refused. Officer found that it was in child's best interests to reside in Canada with his father, and could visit mother or main- tain contact through electronic means. Applicants applied for judicial review. Application granted. Standard of review was reasonableness. While best in- terests of child evidence was lim- ited, officer's analysis failed to fully consider limited evidence. Within framework of evidence provided, officer was required to identify and define child's best interests and examine those interests with great deal of at- tention, which did not occur here. Officer failed to address evidence that mother was child's primary caregiver and failed to address father's full-time em- ployment and impact that might have on his ability to take care of child on full-time basis. Analysis failed to address impact on four- year-old child of his extended family being removed. Analysis minimized child's best interests by starting from position that mother would be removed, and presumption of removal was ex- acerbated by failure to fully ad- dress evidence that was relevant to child's interests. Officer's best interests of children analysis was unreasonable, and matter was to be re-determined by different officer. Ondras v. Canada (Minis- ter of Citizenship and Immi- gration) (2017), 2017 Carswell- Nat 7907, 2017 CarswellNat 859, 2017 FC 303, 2017 CF 303, Pat- rick Gleeson J. (F.C.). Refugee status refused on ground it was in applicant's best interest to be reunited with family Applicant was 19-year-old citi- zen of Lebanon who was sent by parents to Canada in hopes of claiming refugee status. Ap- plicant's parents intended him to live with aunt in Canada. Ca- nadian authorities were not sat- isfied with arrangements when applicant arrived at border. Applicant was placed in group home under supervision of Family and Child Services. Ap- plicant's claim for refuges status was refused. Applicant applied for exemption based on hu- manitarian and compassionate grounds. Applicant relied on al- leged recruitment by Hezbollah if returned to Lebanon. Immi- gration officer found applicant's family still lived in Lebanon and were not significantly affected by sectarian violence. Officer rejected application on grounds that it was in applicant's best interests to reunite with family. Applicant brought application for judicial review. Application dismissed. Officer balanced ap- plicant's circumstances and de- termined that exemption based on humanitarian and compas- sionate considerations was not justified. Officer assessed best interests of child by giving due and reasonable consideration to applicant's age, medical reports, psychological assessments, edu- cational achievements/goals, current country conditions in Lebanon, establishment in Canada and Lebanon, and ties to Canada and Lebanon. Offi- cer reasonably determined that humanitarian and compassion- ate considerations were not in favour of applicant remaining in Canada. Chehade v. Canada (Min- ister of Citizenship and Immi- gration) (2017), 2017 Carswell- Nat 8039, 2017 CarswellNat 857, 2017 FC 293, 2017 CF 293, Glen- nys L. McVeigh J. (F.C.). 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. Additional caselaw is available on Law Times website, at lawtimesnews.com.

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