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Criminal Law

Extradition proceedings

Extradition from Canada

Application for bail pending appeal of extradition order was dismissed

United States alleged that accused coerced two sisters living in Virginia into performing sadistic sexual acts with each other in front of webcam while accused watched and captured images on his computer for pleasure. Accused was arrested on domestic charges in 2012 and released on bail. Accused was subsequently arrested under Extradition Act and Canadian charges were withdrawn. Accused’s application for bail in relation to extradition proceedings was dismissed and accused was committed for extradition to United States. Accused was ultimately discharged on appeal, based on finding there was insufficient evidence for committal for offence of child luring. United Stated advised they conducted search of accused’s computer and as result, 80 new alleged victims were located, 70 of whom were in United States, and accused was once arrested and once again committed for extradition to United States. Accused commenced appeal of order. Accused brought application under Act for bail pending appeal of order committing him for extradition to United States. Application dismissed. Appeal was not frivolous; however, accused failed to show he was not flight risk. Strength of case against accused increased as was magnitude of accused’s alleged wrongdoing. Accused was well-versed in travel. Detention was necessary in public interest. Evidence against accused demonstrated ongoing systematic pattern of intimidating threatening and exploiting vulnerable children; risk of re-offending was not met by proposed plan of supervision. Accused’s continued detention was necessary to maintain public’s confidence in administration of justice.
United States of America v. Viscomi (2016), 2016 CarswellOnt 20375, 2016 ONCA 980, Eileen E. Gillese J.A., In Chambers (Ont. C.A.).

Criminal Law

Charter of Rights and Freedoms
Unreasonable search and seizure [s. 8]

There was reason to question accuracy of information

Two accused, SI and SH, were subject of telewarrant. Both accused were found in separate units of same condo building, with drugs, firearms, and ammunition present. Both accused challenged validity of warrant, with SH testifying that he had no knowledge of items in apartment unit which was not his. SI did not testify. Accused moved unsuccessfully to cross-examine affiant of warrant. SH was found guilty only as to count of firearm possession, with other material not proven to be in his control. SI was found guilty on all counts. SI was sentenced to 10 years’ imprisonment, with SH being sentenced to 6 years imprisonment. Accused claimed that s.8 violation under Charter of Rights and Freedoms should have been found, by trial judge. SI also claimed that sentence was unfit. Both accused appealed from convictions. Appeal allowed. Cross-examination should have been permitted. There was reason to question accuracy of information, with affiant expressing some doubt as to contents. Proper corroboration was not present.
R. v. Shivrattan (2017), 2017 CarswellOnt 329, 2017 ONCA 23, Doherty J.A., C.W. Hourigan J.A., and L.B. Roberts J.A. (Ont. C.A.).

Criminal Law

Prisons and prisoners
Regulation

Corrections Officer’s negligence caused inmate’s injuries

Plaintiff gang member (inmate) was sent to defendant province’s pre-trial detention facility with policy of distributing members of same gang as evenly as possible throughout facility. Corrections Officer (CO), A, applied policy and housed inmate in unit with R, high-level member of rival street gang who was on trial for alleged crimes committed in altercation with inmate’s gang. Inmate requested protective custody on prior occasion, but not on current occasion. Inmate was attacked, dragged to another area, beaten viciously by several people. Inmate brought successful action against province for damages for negligence. Trial judge held that policy fell squarely within category of policy decisions and was not justiciable, that A’s failure to take circumstances into account while fulfilling policy’s distribution requirement amounted to negligent conduct, that inmate compatibility should have formed part of calculus, that inmate’s failure to request protective custody did not absolve province from liability, that A ought to have known R posed risk to rival gang members, that layout of facility allowed prolonged attack to go undetected, and that inmate’s injuries were direct result of A’s negligence. Province appealed. Appeal dismissed. Read holistically, trial judge’s “duty of care” analysis disclosed no legal error. Trial judge’s findings of breach of that duty and causation of damage disclosed neither “palpable and overriding” error of fact nor error concerning “extricable question of law”. Trial judge did not conflate concepts of direct and vicarious liability or otherwise fail to apply principle that province’s liability had to derive from actionable negligence of specific CO. Trial judge did not hold that institution-level conduct of gathering and sharing information could ground liability but considered inter-institutional knowledge and sharing of information about R within government in support of conclusion that A knew or ought to have known of threat posed to inmate. Any liability of province flowing from these facts flowed through A’s negligence in housing inmate with R. Trial judge’s finding that A breached standard of care had sufficient evidentiary basis. Trial judge’s finding that A should have known not to place inmate in same unit as R did not disclose “palpable and overriding error” justifying court’s intervention. Trial judge did not unreasonably conclude that negligence of COs caused inmate’s injuries.
Walters (Litigation guardian of) v. Ontario (2017), 2017 CarswellOnt 574, 2017 ONCA 53, G.R. Strathy C.J.O., H.S. LaForme J.A., and K. van Rensburg J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 12001, 2015 ONSC 4855, Gans J. (Ont. S.C.J.).

Conflict of Laws

Enforcement of foreign judgments

Defences

Foreign judgments are not exempt from limitation period under Limitations Act (Ont.)

Plaintiff obtained judgment in United States against defendant, and defendant’s appeal was dismissed. Plaintiff’s application in Ontario to enforce foreign judgment was granted, with dismissal of defendant’s defence arguing that limitation period commenced from date of first-instance judgment and not from dismissal of appeal. Defendant appealed. Appeal dismissed. Class of claims subject to no limitation period under s. 16 of Limitations Act, including in s. 16(1)(b) of Act to enforce order of court, did not include to proceeding on foreign judgment. Debt obligation created by foreign judgment could not be directly enforced as proceeding within province had to be brought first. Term “order of court” referred to order of domestic court, which could only be obtained if underlying cause of action was not time-barred whereas proceeding underlying foreign judgment had not passed any Ontario limitations hurdle. Other claims grouped together in s. 16 of Act were those considered so important that would be no limitation period. It would contrary to purpose of Act to exempt foreign judgments from limitation period, since problems associated with preservation and reliability of evidence were especially pronounced for foreign judgment debtors. Applicable limitation period was basic two-year period from when claim was discovered meaning that commencing proceeding was “appropriate” which meant “legally appropriate”. It was not legally appropriate to commence legal proceeding in Ontario on foreign judgment until time to appeal foreign judgment had expired or all appeal remedies had been exhausted. Plaintiff’s claim based on foreign judgment was discoverable when appeal was dismissed and so proceeding was commenced within limitation period.
Independence Plaza 1 Associates, L.L.C. v. Figliolini (2017), 2017 CarswellOnt 374, 2017 ONCA 44, George R. Strathy C.J.O., G. Pardu J.A., and David Brown J.A. (Ont. C.A.).

Immigration and Citizenship

Admission

Temporary entry (visitors)

It was not understandably clear why visa officer denied study permit

Applicant previously studied in Canada and was honour student at college. Same college had accepted applicant’s application for resumption of his studies. Applicant applied for study permit pursuant to s. 11(1) of Immigration and Refugee Protection Act, which was denied by visa officer based on overall unreasonableness of applicant’s plan of studies, strong personal ties to Canada, and previous immigration history. Applicant applied for judicial review. Application granted. Applicant provided evidence of establishment of his parents in Greece. Applicant’s family resided in Greece, his ties there remained strong, and only former friends were living in Canada. Applicant’s study plans encompassed logical trajectory for study permit. It was not understandably clear why visa officer denied study permit, and without more specific clarification, officer’s decision was not reasonable.
Tsaraosi v. Canada (Minister of Citizenship and Immigration) (2017), 2017 CarswellNat 55, 2017 FC 59, Michel M.J. Shore J. (F.C.).

Tax

Income tax

Losses

Taxpayer’s losses were denied in their entirety

Taxpayer L-M deducted against his employment income of $70,000 to $80,000 aggregate business and rental losses of $52,748 for 2006, $61,625 for 2007, and $67,768 for 2008. L-M claimed significant losses from arrangement with P Ltd.. Taxpayer L reported small amount of business income and deducted business losses from purported business carried on in common with L-M, being $3,846 in 2006, $336 in 2007, and $11,188 in 2008. Taxpayers reported losses as 80/20 partners in partnership that was distributor for MA business. Minister reassessed taxpayers to deny losses in their entirety. Tax Court judge dismissed taxpayers’ appeals. Judge found that losses claimed with respect to P Ltd. were not substantiated. L-M appealed. Appeal dismissed. Judge did not misunderstand issue that was before her. Net effect of judge’s decision would be same regardless of whether it was determined that L-M did not have source of business or property income in relation to P Ltd. or MA activity or that expenses in dispute were not incurred by him for purpose of gaining income from business or property, with result that revenue for each activity would be equal to expenses allowed for each activity. Judge did not make any error by focusing on issue of whether L-M had substantiated amounts claimed as losses. Judge did not err in finding that L-M had not substantiated that he had incurred amounts as expenses for purpose of gaining income from business or property. Judge did not err in determining that L-M’s testimony was so vague and conflicting as to be unreliable except to extent it was supported by other evidence.
Lubega-Matovu v. R. (2016), 2016 CarswellNat 7427, 2016 FCA 315, Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Richard Boivin J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 2214, 2015 TCC 147, Judith M. Woods J. (T.C.C. [Informal Procedure]).

Administrative Law

Discretion of tribunal under review

General principles

Tribunal used improper section of law to dismiss procedural fairness complaint

Appellant T was complainant to public service tribunal, claiming she had been subject to reprisal from respondent employer Crown. Tribunal determined that they had no authority to deal with complaint. T claimed that standards of review used were improper. T also claimed that her procedural fairness rights were violated, as applicable section of law was not used by tribunal. T applied for judicial review of tribunal decision. Application was dismissed. T appealed from dismissal of application. Appeal allowed. Tribunal used improper section of law to dismiss procedural fairness complaint. Commissioner of tribunal did not disclose that this section was being considered to dismiss complaint. T was misinformed, and could not have known case she had to meet. Matter was referred back to tribunal, to be determined in accordance with reasons of reviewing court.
Therrien v. Canada (Attorney General) (2017), 2017 CarswellNat 61, 2017 FCA 14, Scott J.A., Boivin J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 10847, 2015 CarswellNat 7151, 2015 FC 1351, 2015 CF 1351, B. Richard Bell J. (F.C.).

Criminal Law

Offences

Sexual assault

Evidence of two experts was subjected to materially different levels of scrutiny

Accused was convicted of sexual assault. Majority of appellate court concluded that there was no basis for overturning accused’s conviction. Accused appealed. Appeal allowed. Because new trial had to be ordered, court did not need to finally decide whether impugned evidence of Crown’s DNA expert as to source of complainant’s DNA, found on accused’s penis, was or was not admissible. Assuming impugned evidence of Crown’s DNA expert was admissible, it was challenged by defence DNA expert as being speculative, and without any scientific foundation. On its face, there was no way of telling whether it was speculative, scientific or somewhere in between, and defence counsel did not explore this in cross-examination. Even though neither Crown nor defence counsel referred to impugned evidence in their closing addresses, trial judge accepted it at face value, without subjecting it to any scrutiny, and used it as important piece of evidence in finding accused guilty. At same time, trial judge subjected testimony of defence DNA expert to intense scrutiny. Materially different levels of scrutiny to which evidence of two experts was subjected was unwarranted, and it tended to shift burden of proof onto accused. Given importance that trial judge placed on impugned evidence in finding accused guilty, it could not be said that verdict would necessarily have been same had she not done so. Conviction was quashed, and new trial was ordered.
R. v. Awer (2017), 2017 CarswellAlta 47, 2017 CarswellAlta 48, 2017 SCC 2, 2017 CSC 2, Moldaver J., Karakatsanis J., Wagner J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellAlta 827, 2016 ABCA 128, Ronald Berger J.A., Jack Watson J.A., and Frederica Schutz J.A. (Alta. C.A.).

Youth Offenders

Youth Criminal Justice Act

Crown did not rebut presumption of diminished moral culpability

Accused young persons T and M were involved in planning shooting of 16-year-old deceased, and were convicted of first degree murder. M and T were accepted for intensive rehabilitative custody and supervision (IRCS) orders, if sentenced as youth. Youth court judge granted Crown’s application to have adult sentences imposed and gave M and T life sentences with 10 years’ parole ineligibility. M and T had served 2.5 years of their adult sentences. M and T appealed. Appeals allowed; sentences varied. Adult sentences were set aside and youth sentences were substituted, of ten years with IRCS order, six years of which were to be in custody, for M, and ten years with IRCS order, four years of which were to be in custody, for T. Judge erred in concluding that IRCS program would not accomplish necessary rehabilitation by relying on speculative concerns about M and T’s willingness to cooperate with IRCS orders and other inaccurate assumptions about implementation and enforcement of such orders. It was appropriate to exercise discretion to impose maximum youth sentences on top of time served of adult sentence. Crown did not rebut presumption of diminished moral culpability of T or M. T and M were 16 years old at time of offence and resided in community of disadvantaged youths. T and M’s participation in crime did not evidence level of maturity or independent judgment and foresight beyond that of adolescent, but evidenced immaturity, impulsiveness, or other ill-considered motivation. T and M could be held sufficiently accountable for their criminal conduct by imposition of ten-year youth sentence with IRCS order on top of time spent serving adult sentences. Ten-year youth sentence with IRCS order would provide intensive treatment and counselling and was best sentence to meet sentencing objectives of protecting public and rehabilitation.
R. v. W. (M.) (2017), 2017 CarswellOnt 327, 2017 ONCA 22, Gloria Epstein J.A., S.E. Pepall J.A., and K. van Rensburg J.A. (Ont. C.A.); varied (2014), 2014 CarswellOnt 7925, 2014 ONSC 3436, Nordheimer J. (Ont. S.C.J.).

Criminal Law

Offences

Murder

Non-direction by trial judge amounted to misdirection

CW and SH were in dispute over relationship and wanted to fight. Accused was CW’s brother. Accused was asked by CW to go to parking lot and watch out for him during fight. When accused arrived in parking lot, he saw CW and SH fighting. Instead of getting out of his vehicle to help his brother, accused drove truck towards both men. Accused accelerated, then applied braked. Truck fishtailed and struck SH and crushed him against wall. Accused then left area without offering any assistance to SH. Accused was convicted of second degree murder. Accused appealed. Appeal dismissed, and conviction of manslaughter substituted in place of conviction of second degree murder. Charge to jury did not adequately equip jury to determine nature and extent of accused’s liability for death of SH. Failure of trial judge to make clear role of accident constituted non-direction amounting to misdirection in circumstances of case.
R. v. Ward (2016), 2016 CarswellOnt 20379, 2016 ONCA 984, R.G. Juriansz J.A., David Watt J.A., and L.B. Roberts J.A. (Ont. C.A.).
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