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Murder

SECOND DEGREE MURDER

Denial of ministerial review of conviction for second degree murder upheld on judicial review and further appeal

Accused appealed judgment dismissing his application for judicial review of denial of ministerial review of conviction for second degree murder of his estranged wife. Accused and his wife had been engaged in bitter divorce proceedings. Accused arrived at house on family farm to pick up their children. Children were not there and fight between parties ensued. Wife’s car was crashed into front porch of house, house caught on fire, and wife was found dead at bottom of basement stairs. Wife had died in fire from carbon monoxide poisoning but she had been beaten severely beforehand. Accused admitted to beating wife with hockey stick. Accused claimed he became aware that porch had caught on fire, perhaps as result of car crashing into it and went upstairs and tried to smother flames with his jacket, but could not smother fire and left. Trial judge found accused severely beat his wife, then left her incapacitated in burning farmhouse, and accused then intentionally set fire. Accused’s application was based upon three new arson experts’ opinions that challenge trial judge’s conclusion that fire was intentionally set with accelerant. All three experts were of view that, contrary to Crown expert’s opinion at trial on which trial judge relied, accelerant was not used to start fire and disagreed with Crown expert’s opinion that cause of fire was not electrical in nature. Criminal Conviction Review Group of Department of Justice retained independent arson expert. That expert agreed with new experts that no accelerant was present. Minister concluded that while new expert reports cast doubt on whether accelerant was used to start fire, there was sufficient remaining evidence that pointed to accused intentionally killing victim. Appeal dismissed. Minister’s decision was reasonable. Decision noted that accused failed to immediately notify anyone of victim’s presence in home while firefighters were attempting to extinguish fire, had lamented fact whole house did not go up and destroy evidence to cell plant, and had made serious threats toward victim. Court made its decision, giving all benefit to accused, and assumed for moment that new expert evidence conclusively proved that accused did not set fire in any way. Evidence, much of it admitted by accused, showed that he factually and legally caused wife’s death. Accused beat wife with hockey stick so forcefully that shaft of stick broke, leaving her incapacitated or unconscious in basement of burning house. Wife’s injuries were severe to such degree she may have died from them without fire intervening.
Walchuk v. Canada (Minister of Justice) (Apr. 7, 2015, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and D.G. Near J.A., File No. A-351-13) Decision at 109 W.C.B. (2d) 525 was affirmed.  121 W.C.B. (2d) 56.

Murder

SECOND DEGREE MURDER

Denial of ministerial review of conviction for second-degree murder upheld

Accused appealed judgment dismissing his application for judicial review of denial of ministerial review of conviction for second-degree murder of his estranged wife. Accused and his wife had been engaged in bitter divorce proceedings. Accused arrived at house on family farm to pick up their children. Children were not there and fight between parties ensued. Wife’s car was crashed into front porch of house, house caught on fire, and wife was found dead at bottom of basement stairs. Wife had died in fire from carbon monoxide poisoning but she had been beaten severely beforehand. Accused admitted to beating wife with hockey stick. Accused claimed he became aware that porch had caught on fire, perhaps as result of car crashing into it and went upstairs and tried to smother flames with his jacket, but could not smother fire and left. Trial judge found accused severely beat his wife, then left her incapacitated in burning farmhouse, and accused then intentionally set fire. Accused’s application was based upon three new arson experts’ opinions that challenge trial judge’s conclusion that fire was intentionally set with accelerant. All three experts were of view that, contrary to Crown expert’s opinion at trial on which trial judge relied, accelerant was not used to start fire and disagreed with Crown expert’s opinion that cause of fire was not electrical in nature. Criminal Conviction Review Group of Department of Justice retained independent arson expert. That expert agreed with new experts that no accelerant was present. Minister concluded that while new expert reports cast doubt on whether accelerant was used to start fire, there was sufficient remaining evidence that pointed to accused intentionally killing victim. Appeal dismissed. Minister’s decision was reasonable. Decision noted that accused failed to immediately notify anyone of victim’s presence in home while firefighters were attempting to extinguish fire, had lamented fact whole house did not go up and destroy evidence to cell plant, and had made serious threats toward victim. Court made its decision, giving all benefit to accused, and assumed for moment that new expert evidence conclusively proved that accused did not set fire in any way. Evidence, much of it admitted by accused, showed that he factually and legally caused wife’s death. Accused beat wife with hockey stick so forcefully that shaft of stick broke, leaving her incapacitated or unconscious in basement of burning house. Wife’s injuries were severe to such degree she may have died from them without fire intervening.
Walchuk v. Canada (Minister of Justice) (Apr. 7, 2015, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and D.G. Near J.A., File No. A-351-13) Decision at 109 W.C.B. (2d) 525 was affirmed.  121 W.C.B. (2d) 56.

Crown

ARMED FORCES

No breach of procedural fairness in processing of soldier’s grievance

Soldier was member of Canadian Forces since 1995. Soldier started Common Army Phase course in 2003. Soldier failed several performance objectives despite repeated attempts. Investigation regarding evaluation process revealed no discrepancies in application of course standards. Soldier filed grievance regarding his failure and included allegations of harassment. Chief of Defence Staff (CDS) dismissed grievance. Soldier brought application for judicial review. Federal Court judge concluded that there was no breach of procedural fairness in processing of grievance and that it was reasonable for CDS to dismiss grievance. Application for judicial review was dismissed. Soldier appealed. Appeal dismissed. Federal Court judge did not err in rejecting soldier’s submissions that he was denied procedural fairness. Disclosure had been adequate. Delay had not been so oppressive as to taint proceedings. It was not role of court to re-weigh evidence before CDS. Conclusions made by CDS were reasonably open to it to make and decision of CDS was reasonable. Decision fell within range of reasonable outcomes that were defensible in respect of facts and law and reasons were justifiable, transparent, and intelligible.
Moodie v. Canada (Attorney General) (Apr. 7, 2015, F.C.A., C. Michael Ryer J.A., Wyman W. Webb J.A., and David G. Near J.A., File No. A-272-14) Decision at 240 A.C.W.S. (3d) 879 was affirmed.  252 A.C.W.S. (3d) 252.

Civil Procedure

PARTIES

Groups granted leave to intervene in appeals respecting Northern Gateway Pipeline Project

Parties were disputing reasonableness and legality of Northern Gateway Pipeline Project’s approval. Consolidated matters were applications and appeals from decisions from Governor in Council, National Energy Board and Joint Review Panel. Amnesty International and Canadian Association of Petroleum Producers brought motions to intervene under R. 109 of Federal Courts Rules (Can.). Motions granted. Both proposed interveners had genuine interest in matter and were able to bring knowledge, skills and resources before court. International law was very much at large on all issues in many different ways in consolidated matter. Amnesty International was granted leave to intervene on terms, primarily because of its expertise in international law issues and potential that international law issues could be relevant, albeit in limited ways. Canadian Association of Petroleum Producers could shed light on discussion of whose interests might be affected if project’s approval was overturned. Matters had complex and important dimensions that needed to be exposed to perspectives beyond those offered by particular parties before court.
Gitxaala Nation v. R. (Mar. 16, 2015, F.C.A., David Stratas J.A., File No. A-56-14, A-59-14, A-63-14, A-64-14; A-67-14, A-437-14, A-439-14, A-440-14, A-442-14, A-443-14, A-445-14, A-446-14, A-447-14, A-448-14, A-514-14, A-517-14, A-520-14, A-522-14) 252 A.C.W.S. (3d) 39.

Taxation

TAX CREDITS    
    
No errors in judge’s findings regarding taxpayer’s claim for donation credit

Taxpayer claimed charitable donation tax credit in 2006 taxation year for $10,250 she gave to church by tucking envelopes containing $100 or $200 in pew or donation tray every week. Church’s charitable status was revoked in May 2009. Minister of National Revenue assessed taxpayer in respect of 2006 income tax return, disallowing claimed donation. Taxpayer’s appeal was dismissed. Judge held that taxpayer failed to prove she donated $10,250 to church. Judge found that taxpayer failed to provide bank records to corroborate cash withdrawals. Judge found that taxpayer’s prior charitable history was minimal, and expected she would follow up better given that alleged donations equaled about 13 per cent of taxpayer’s after tax income. Judge held that receipt did not conform with requirements prescribed by Regulation 3501 of Income Tax Regulations (Can.). Receipt did not contain statement that it was official receipt for income tax purposes, date on which receipt was issued, or locality or place where receipt was issued. Taxpayer appealed. Appeal dismissed. Taxpayer did not show any palpable and overriding errors in judge’s findings regarding lack of truthfulness of taxpayer’s claim, and missing elements in receipt.
Sowa v. R. (Apr. 21, 2015, F.C.A., Nadon J.A., Eleanor R. Dawson J.A., and Boivin J.A., File No. A-143-14) Decision at 235 A.C.W.S. (3d) 1127 was affirmed.  251 A.C.W.S. (3d) 711.

Human Rights Legislation

APPEALS

No duty to accommodate if employer legitimately unaware of employee’s disability

In January 2009, applicant was terminated from employment for time theft. Applicant’s grievance was dismissed. In August 2009, applicant obtained psychiatric report that indicated he had bipolar affective disorder. Applicant requested that employer reinstate him based on psychiatric report but employer refused in November 2009. In January 2010 applicant filed complaint under Canadian Human Rights Act alleging that former employer discriminated against him on basis of mental disability, race and national or ethnic origin in terminating employment. Human Rights Commission dismissed complaint on basis that there did not appear to be any link between alleged discriminatory acts and any prohibited ground of discrimination. Applicant requested commission reopen complaint. Report recommended applicant’s complaint be dismissed. Commission dismissed complaint because it was filed out of time and it was vexatious. Applicant applied for judicial review. Federal Court judge found that applicant had not been denied procedural fairness and that commission’s decisions were reasonable. Application for judicial review was dismissed. Applicant appealed. Appeal dismissed. There was no duty to accommodate if employer was legitimately unaware of employee’s disability. Applicant’s employment was terminated in January 2009 and that was last act that was related to employment. To find that last act was refusal of employer to reinstate applicant in November 2009 would mean that employee would have control over commencement of limitation period by choosing when to submit request for reinstatement. It was reasonable in circumstances for commission to determine that, for purposes of Act, refusal of employer to reinstate applicant as employee should not be considered as possible discriminatory act because it occurred after his employment was terminated. Commission’s finding that last alleged discriminatory act occurred in January 2009 when applicant was dismissed was reasonable. Commission’s decision not to extend time for filing complaint was reasonable.
Khaper v. Air Canada (Apr. 16, 2015, F.C.A., Eleanor R. Dawson J.A., Wyman W. Webb J.A., and D.G. Near J.A., File No. A-138-14) Decision at 239 A.C.W.S. (3d) 984 was affirmed.  251 A.C.W.S. (3d) 646.

Employment

PUBLIC SERVICE

Matter was referred back to Veterans Review and Appeal Board for reconsideration of retroactivity of pension in light of breach of duty to inform

Veteran had fought for Canada during Second World War. In 1996, veteran filed application for disability pension for stomach ulcers. Veteran passed away in 2005, and his daughter continued proceedings on his behalf. Minister rendered decision whereby pension application was denied because veteran’s condition did not arise from military service. That decision was confirmed by review panel of Veterans Review and Appeal Board (VRAB) in 2007. However, appeal panel of VRAB held that daughter and surviving spouse were entitled to pension and established effective date of pension retroactively to November 9, 2005, but no additional award was granted. In 2009, reconsideration panel of VRAB established effective date of pension as October 30, 2004, and granted additional award of 24 months, taking into consideration administrative difficulties experienced by daughter. In 2010, VRAB rejected new application for review, finding that that Department of Veterans Affairs of Canada (VAC) did not breach duty to provide counselling service under s. 81(3) of Pension Act (Can.), when processing disability pension application and that disability pension payment date of October 30, 2004 should be confirmed. On application for judicial review, judge concluded that VAC breached duty to inform under s. 81(3) of Act, which caused delay in paying pension. Application for judicial review was allowed and matter was referred back to VRAB for reconsideration of retroactivity of pension in light of breach of duty to inform. VRAB confirmed maximum retroactivity period that set pension’s effective date at October 30, 2004, and maximum additional award equivalent to two years’ pension. VRAB rejected argument that case should be remitted back to Minister for additional award. Surviving spouse and daughter unsuccessfully brought motion seeking judicial review of VRAB’s decision. Federal Court Judge found that VRAB correctly refused to remit matter back to Minister and decision was reasonable. Surviving spouse and daughter appealed. Appeal dismissed. Federal Court Judge did not err with respect to relevant standard of review of reasonableness. Federal Court Judge did not err in finding that VRAB’s decision not to remit matter to Minister was reasonable. Record showed that surviving spouse and daughter had already been granted maximum compensation. Reviewing judge’s refusal to order matter be remitted to Minister was necessarily reasonable because even if had done so, surviving spouse and daughter could not have received additional compensation.
Arial c. Canada (Procureur général) (Sep. 30, 2014, F.C.A., Marc Noël J.A., A.F. Scott J.A., and Richard Boivin J.A., File No. A-290-13) Decision at 230 A.C.W.S. (3d) 1073 was affirmed.  251 A.C.W.S. (3d) 511.
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