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Charter of Rights

FUNDAMENTAL JUSTICE

Denying parole did not constitute, in and of itself, deprivation of liberty

Prisoner applied for judicial review of decision of Parole Board, Appeal Division, which upheld decision of Parole Board denying prisoner day and full parole for deportation. Prisoner was 52 year old UK citizen, who had lived in Canada since childhood but never obtained citizenship, serving life sentence for first degree murder of police officer. Murder occurred in 1983, while prisoner was unlawfully at large after having escaped from custody where he was detained for various robberies. Prisoner entered shopping mall with intention of robbing bank and noticed officer in food court, and shot him in chest, killing him. Prisoner took officer’s handgun, fired two additional shots in air and in food court’s crowd. Prisoner was arrested shortly thereafter at residence, where police found officer’s handgun, two loaded guns and sawed-off shotgun. Accused had previously been convicted for assault of peace officer, theft, possession of stolen property, mischief and failure to appear and had admitted to committing seven bank robberies. Since 1991, prisoner had been subject to deportation order. Prisoner had been denied parole each of several times he applied because he was found to pose undue risk. Prisoner appealed last such decision. Support for prisoner’s transfer to minimum security prison by case management team was withdrawn when prisoner became subject of ongoing criminal investigation. Prisoner argued that board erred in law and fettered its discretion in holding that “gradual and structured release” was “requirement” or pre-condition to granting of parole. Prisoner alleged that his deportable status barred him from any means to attain gradual and structured release. Application dismissed; no costs awarded. While board’s use of word “requirement” to designate “gradual and structured release” plan recommended by case management team might not have been most fortunate, it was not fatal and nothing in its decision suggested that it unlawfully fettered its discretion. Board noted that risk to society posed by release of prisoner had slowly decreased over time but it was such that full parole was not warranted at this point. While prisoner contended that his risk to society was now low, he did not allege that board made error on this point. Board’s decision was based on relevant statutory criteria and principles, was well reasoned and based on all information that was before it. Denying parole was merely modification of existing sentence and did not constitute, in and of itself, deprivation of liberty guaranteed by Charter.
Collins v. Canada (Attorney General) (May. 7, 2014, F.C., Richard Boivin J., File No. T-2243-12) 113 W.C.B. (2d) 309.

Citizenship

APPEAL

Strict physical presence test was principled approach to take

Foreign national was citizen of United States who entered Canada in 2001, and became permanent resident on Jan. 22, 2008. In February 2010, foreign national applied for Canadian citizenship. Citizenship judge noted that foreign national declared 156 days of absences from Canada in her citizenship application, but 205 days on her Residence Questionnaire and that foreign national was physically present in Canada for 958 days according to her citizenship application, but 909 days according to her Residence Questionnaire. Citizenship judge determined that foreign national failed to meet requirement that she be physically present in Canada for at least 1,095 days out of four years immediately preceding her application for citizenship. Foreign national appealed, contending that judge ought to have conducted qualitative assessment of evidence submitted which showed quality of her ties to Canada and that such an assessment would have allowed her to meet residency requirement, despite not satisfying physical presence test. Appeal dismissed. Based on plain and ordinary reading of Citizenship Act (Can.), strict physical presence test was principled approach to take. Discrepancy between dates cited by judge was explainable, however, in light of fact that neither absences cited on foreign national’s citizenship application or her Residence Questionnaire added up to 1,095 days of physical presence in Canada, this explanation was irrelevant to citizenship judge’s conclusion. Judge’s decision was not unreasonable.
Donohue v. Canada (Minister of Citizenship and Immigration) (Apr. 28, 2014, F.C., Michael D. Manson J., File No. T-1824-13) 240 A.C.W.S. (3d) 21.

Appeal

GROUNDS

Undisclosed documents went to pivotal issue of whether accused would have testified

Accused applied for judicial review of decision of Minister of Justice refusing to grant remedy regarding two convictions for fraud imposed and upheld on appeal. Accused was lawyer who joined two of his clients in starting family restaurant franchise, and sold shares in partnership. Project began to fall apart when popularity of restaurant was less than expected and its revenues declined, limited partnership was petitioned into bankruptcy by bank, and Securities Commission launched inquiry resulting in civil action and criminal charges. Accused was convicted of two counts of concealing information from investors. Accused put forward as grounds for his application non-disclosure of significant evidence at trial, including evidence that had been available to Crown, and new evidence allegedly discrediting certain witness testimony. Two key items of undisclosed evidence were detailed admissions of guilt by accused’s partners to Securities Commission and pre-trial agreement struck between those partners and investors in relation to action against accused for professional malpractice. Accused and his counsel at time of trial, gave evidence in support of application that they would have conducted defence strategy very differently had this information been known to them. Accused would have testified in his own defence and counsel would have attacked credibility of witnesses more aggressively. Instead, formal counsel stated he had deliberately avoided challenging evidence of elderly investors for fear of being seen to be too harsh on victims. Application granted with costs; matter returned to Minister for reconsideration. Minister’s delegate found that there was “reasonable possibility” that accused would have testified in his own defence and that his counsel may have changed his approach in cross-examining investors if Settlement Agreements and Assignment Deal had been disclosed at trial. Minister disagreed with these conclusions but did not interview witnesses or read volumes of documents assembled in investigation. Question to be decided was whether accused received fair trial as result of non-disclosure, not whether outcome would have been affected. Witnesses, accused’s partners and investors, were at heart of Crown’s case on counts on which accused was convicted. Undisclosed documents also went directly to pivotal issue of whether accused would have testified if he had known of them. Decision lacked justification, transparency and intelligibility and did not fall within range of possible, acceptable outcomes which were defensible in respect of facts and law.
Ross v. Canada (Minister of Justice) (Apr. 7, 2014, F.C., Richard G. Mosley J., File No. T-1790-10) 113 W.C.B. (2d) 196.

Human Rights Legislation

JUDICIAL REVIEW

Complaint was vexatious because it had already been appropriately dealt with

Applicant began full-time employment with respondent employer in 1997, and he remained employed until 2009, when he was terminated for time theft. Labour arbitrator upheld applicant’s termination after grievance arbitration hearing. Applicant did not allege discrimination at arbitration proceedings. Applicant obtained psychiatric report that he claimed established he had disability at time of his termination. Applicant requested that employer reinstate him based on psychiatric report, but employer refused. Applicant bought human rights complaint alleging discrimination in employment by employer on prohibited grounds of race, colour, ethnic origin and disability. Human Rights Commission advised applicant that complaint of discriminatory acts was not linked to any prohibited ground of discrimination and closed file. Arbitrator agreed to reopen applicant’s grievance of his termination, but upheld termination. Applicant requested commission reopen complaint. Commission issued report that recommended applicant’s complaint be dismissed pursuant to s. 41(1)(d) and (e) of Canadian Human Rights Act. Commission decided not to deal with applicant’s complaint on basis that it was filed out of time and was vexatious. Applicant applied for judicial review of commission’s decision. Application dismissed. Applicant was aware of conclusions and recommendations in report and was aware of case he had to meet. Applicant made extensive submissions in response to report. Commission did not breach applicant’s right to procedural fairness. Commission’s decision with respect to timeliness was reasonable. Commission’s reasons did not leave applicant with impression that it did not consider his allegations before it rejected them. Commission’s decision that complaint was vexatious was reasonable. Notion of vexatious complaint included complaints that were res judicata, abuse of process, collateral attacks or barred by issue estoppel. Commission found that complaint was vexatious because it had already been appropriately dealt with and to allow applicant to raise new grounds of discrimination when he could have had all his human rights issues dealt with at arbitration was abuse of process and vexatious. There was no unfairness in arbitration proceedings. Commission’s reliance on finality of arbitration proceedings to conclude that complaint was vexatious did not cause unfairness or injustice.
Khapar v. Air Canada (Feb. 10, 2014, F.C., Catherine M. Kane J., File No. T-509-13) 239 A.C.W.S. (3d) 984.

Immigration

INADMISSIBLE AND REMOVABLE CLASSES

No true and clear picture of existing and future humanitarian and compassionate concerns

Family member not declared as dependent upon arrival of sponsor in Canada. Foreign national, who was citizen of China born in May 1994 and living in China, was sponsored to Canada in November 2011 by her mother, citizen of Canada who came to Canada in 2005 with her husband and older daughter. Sponsorship application was refused because foreign national was not declared as dependent by her mother upon arrival in Canada. During interview officer questioned foreign national about past and impact of being left behind in China by mother, rather than about present and future best interests. Officer refused permanent residence application after making finding of inadmissibility. Foreign national applied for judicial review. Application granted. Although foreign national was not child at time decision under review was made, officer’s conclusion was required to display fundamental understanding of present and future impact on foreign national of being separated from her mother, both practically and emotionally. Officer did investigate practicalities in interview of foreign national, but did not ask questions that would illicit answers that would provide true and clear picture of existing and future humanitarian and compassionate concerns. Because this line of investigation was required to be engaged, and since it was not engaged, officer’s decision was unreasonable.
Liao v. Canada (Minister of Citizenship and Immigration) (Apr. 8, 2014, F.C., Douglas R. Campbell J., File No. IMM-12150-12) 239 A.C.W.S. (3d) 737.

Immigration

EXCLUSION AND EXPULSION

Officer almost certainly wrong when he described situation as unchanged

Applicant’s underlying judicial review application sought deferral of removal in face of new risks facing homosexuals and bisexuals in Nigeria. Applicant claimed he was bisexual and feared his sexual orientation would put him at serious risk of death, extreme sanction and inhumane treatment in Nigeria. Motion by applicant for stay of removal pending outcome of judicial review application. Motion granted. Officer was given country condition reports, which demonstrated situation in Nigeria had worsened. In applicant’s refugee application, board did not accept applicant had personalized risk, but did not make any finding on his sexual orientation or generalized risk. As such, officer had no basis to conclude risk considered by board was same generalized risk presented in support of deferral request. While officer did not have authority to look behind board decision, he had duty to consider generalized risk faced by applicant as purported bisexual returning to Nigeria. Nigerian government had begun campaign against homosexuals and bisexuals, with round ups and inhumane punishment, which had been condemned by Canada and other countries. Officer was almost certainly wrong when he described situation in Nigeria as unchanged and found that board had appropriately assessed generalized risk. Irreparable harm was established and Canada clearly should not be deporting homosexuals and bisexuals to Nigeria in current conditions. Balance of convenience favoured applicant’s interest over Minister’s desire to deport him.
Abioye v. Canada (Minister of Public Safety and Emergency Preparedness) (Apr. 10, 2014, F.C., R.L. Barnes J., File No. IMM-1828-14) 239 A.C.W.S. (3d) 718.

Immigration

REFUGEE STATUS

Analysis and reasons so inadequate that they could not be considered reasonable

Refugee claimants were citizens of Croatia of Serbian ethnicity who alleged fear of persecution by reason of their ethnicity. Claimants alleged that they had difficulty in obtaining work, suffered discrimination in workplace, and were verbally harassed. Board found that incessant and repeated acts of discrimination suffered by all members of family by reason of their nationality, particularly their son being beaten and discrimination suffered by female claimant in finding employment, amounted to persecution. Board found that state protection would not be forthcoming as claimants had made several attempts to obtain protection from police authorities and although police responded on every occasion, they consistently failed to provide adequate level of protection to family. Board found that documentary evidence confirmed that discrimination against ethnic Serbs existed throughout Croatia, and that claimants would not likely be able to find gainful employment in all of Croatia. Board concluded that claimants were Convention Refugees and Minister applied for judicial review. Application granted. Board failed to properly consider evidence before it, and its analysis and reasons were so inadequate that they could not be considered reasonable. Board’s finding that incessant and repeated number of acts of discrimination suffered by all members of family amounted to persecution did not accord with evidence before it. Board’s finding that police consistently failed to provide adequate level of protection was not grounded in evidence as board recognized that police responded on every occasion that they were called by claimants and there was no evidence that police failed to follow through on any investigations or failed to provide any services. Board’s treatment of existence of internal flight alternative was deficient and not grounded in evidence before it. Board failed to properly consider evidence before it, and its analysis and reasons were so inadequate that they could not be considered reasonable.
Canada (Minister of Citizenship and Immigration) v. Viljanac (Mar. 21, 2014, F.C., Daniele Tremblay-Lamer J., File No. IMM-3807-13) 239 A.C.W.S. (3d) 458.
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