Law Times

Law Times • June 25, 2018 Page 13 www.lawtimesnews.com Supreme Court of Canada Criminal Law DEFENCES Consent While trial judge erred by stepping into shoes of counsel, no miscarriage of justice occurred Accused was charged and con- victed with sexual assault. Trial judge found that because ac- cused took position that case was about consent, accused could not argue honest but mis- taken belief. Accused's appealed from conviction was dismissed. Accused appealed with Su- preme Court of Canada. Appeal was dismissed. Trial judge's con- duct in intervening in manner in which he did, by stepping into shoes of counsel, raised serious concerns. However, no miscar- riage of justice was shown. R. v. Colling (2018), 2018 CarswellAlta 1008, 2018 Car- swellAlta 1009, 2018 SCC 23, 2018 CSC 23, Abella J., Moldaver J., Gascon J., Brown J., and Rowe J. (S.C.C.); affirmed (2017), 2017 CarswellAlta 2682, 2017 ABCA 286, Ronald Berger J.A., Sheilah Martin J.A., and Jo'Anne Strekaf J.A. (Alta. C.A.). PRE-TRIAL PROCEDURES Pleas Accused not advised of immigration consequences of guilty plea Accused was immigrant with permanent resident status. Ac- cused sold cocaine to under- cover police officer. Accused pleaded guilty to trafficking co- caine and was sentenced to nine months' incarceration. Accused learned that, due to conviction and sentence, he would be re- moved from Canada without right to appeal removal order. Accused applied for extension of time, appealed his convic- tion, and applied for leave to appeal from sentence. Appeal was dismissed and application for leave to appeal sentence was granted. Trial counsel had not advised accused of immigra- tion consequences of his guilty plea or of attracting sentence of six months or more. Court of Appeal ruled that accused could not succeed on basis of unintended collateral conse- quences of his guilty plea as he did not establish that such lack of information about immigra- tion consequences would have made difference to his decision to plead guilty. Accused ap- pealed. Appeal dismissed. Cor- rect framework to apply where accused wants to withdraw guilty plea is subjective frame- work, not modified objective framework. Accused who seeks to withdraw guilty plea must demonstrate prejudice by filing affidavit establishing reason- able possibility that he or she would have either (1) pleaded differently, or (2) pleaded guilty, but with different conditions. Accused's plea was unin- formed, but he failed to estab- lish he suffered prejudice giving rise to miscarriage of justice. Accused could not show there was reasonable possibility that if he had been informed of con- sequence, he would have either pleaded differently, or pleaded guilty with different condi- tions. Accused's affidavit did not depose what he would have done differently if he had been informed of immigration con- sequences so he did not meet his burden. Accused's sentenc- ing was outstanding and Crown had conceded that sentence of six months less a day would be appropriate in light of accused's deportation risk. R. v. Wong (2018), 2018 Car- swellBC 1284, 2018 CarswellBC 1285, 2018 SCC 25, 2018 CSC 25, McLachlin C.J.C., Abella J., Moldaver J., Wagner J., Gascon J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 Car- swellBC 2949, 2016 BCCA 416, Saunders J.A., Harris J.A., and Fitch J.A. (B.C. C.A.). Federal Court of Appeal Public Law SOCIAL PROGRAMS Employment insurance Applicant's arguments raised disagreements with application of settled principles to facts of her case Judicial review. Social Secu- rity Tribunal-General Division (SST-GD) found that applicant was not entitled to receive em- ployment insurance (EI) ben- efits as she left her employment without just cause because there were reasonable alternatives open to her before resigning. So- cial Security Tribunal-Appeal Division (SST-AD) dismissed applicant's appeal because SST- GD did not fail to observe natu- ral justice and did not err in fact or law. Applicant brought ap- plication for judicial review. Ap- plication dismissed. Decision of SST-AD was reasonable because it was not open to it to intervene in light of s. 58 of Department of Employment and Social Devel- opment Act. Applicant's argu- ments, that she had just cause to leave employment due to systemic sex-based harassment or had reasonable assurance of other employment, sought to have her case re-decided on merits, which was not role of court. As applicant's arguments raised disagreement with ap- plication of settled principles to facts of her case, it was reason- able for SST-AD to dismiss her appeal. Cameron v. Canada (At- torney General) (2018), 2018 CarswellNat 2712, 2018 FCA 100, D.G. Near J.A., Mary J.L. Gleason J.A., and J.B. Laskin J.A. (F.C.A.). Federal Court Civil Practice and Procedure DISPOSITION WITHOUT TRIAL Stay or dismissal of action Issues raised by plaintiff in his statement of claim had been litigated Plaintiff was Canadian tax- payer. In his statement of claim, plaintiff alleged wrongdoing in manner in which he was treated by defendants relative to assess- ments for income tax and GST under Income Tax Act and Ex- cise Tax Act. Defendants had brought motion to strike out his statement of claim without leave to amend on grounds that it was scandalous, frivolous or vexatious and was abuse of pro- cess within meaning of R. 221 of Federal Court Rules. Motion was granted and in his order, Prothonotary reviewed his- tory of litigation undertaken by plaintiff before Ontario Court of Justice, Superior Court of Justice of Ontario, Court of Appeal for Ontario, Tax Court of Canada, Federal Court of Appeal and Supreme Court of Canada. Proceedings in Ontar- io Courts were related to con- viction of plaintiff upon charges of filing false and misleading tax returns and proceedings be- fore Tax Court and on appeal to Federal Court of Appeal related to assessments for payment of GST. Plaintiff appealed from order of Prothonotary. Appeal dismissed. Prothonotary made no error in granting motion. Prothonotary did not err in his appreciation of facts nor in his application of law, did not err in finding that issues raised by plaintiff in his statement of claim or claim had been litigat- ed, and made no "palpable and overriding error". There was no support for plaintiff 's allegation of bias. Lee v. Canada (2018), 2018 CarswellNat 2562, 2018 Car- swellNat 2700, 2018 FC 504, 2018 CF 504, E. Heneghan J. (F.C.). Immigration and Citizenship CONSTITUTIONAL ISSUES Charter of Rights and Freedoms Associational activities protected by s. 2(d) of Charter do not envision family as constitutionally protected unit Applicant was Italian citizen and permanent resident in Canada. Immigration Divi- sion (ID) issued removal order against applicant resulting from conviction for break and enter but stay of removal granted by Immigration Appeal Division (IAD) on conditions. Applicant was convicted of robbery and IAD dismissed his appeal and lifted stay. At IAD applicant argued that s. 68(4) of Immigra- tion and Refugee Protection Act was unconstitutional but IAD held that it lacked jurisdiction to rule on the constitutionality of s. 68(4). Applicant applied for judicial review. Application dis- missed. Associational activities protected by s. 2(d) of Charter do not envision the family as constitutionally protected unit. While international law in- struments signed and ratified by Canada can inform consti- tutional interpretation, they 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. CASELAW This is more than a phone book. 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