Immigration and Refugees: Safe Third Country Agreement

Canadian Council for Refugees v. Canada (Minister of Citizenship and Immigration) et al., 2021 CAF 72 (39749)
Since the 2004 agreement between Canada and the United States known as the Safe Third Country Agreement, the U.S. has been designated a safe country pursuant to s. 159.3 of the Immigration and Refugee Protection Regulations. As a result, claimants arriving at a land port of entry to Canada from the U.S. are deemed to be ineligible for refugee protection in Canada pursuant to s. 101(1)(e) of the Immigration and Refugee Protection Act. The individual Applicants are among those claimants who were deemed ineligible. The Applicants ABC and her children are from El Salvador, claiming refugee status based on gang violence and gender-based persecution. The Homsi/Al Nahass Applicants are a Muslim family from Syria who left the U.S. following the issuance of the first travel ban by the U.S. government. The Applicant Ms. Mustefa is a Muslim woman from Ethiopia who was detained after her attempt to enter Canada from the U.S. The Applicant organizations were granted the right to participate as public interest parties. The collective Applicants challenged the Canadian government’s failure to review the ongoing designation of the U.S. under s. 159.3 of the Regulations as rendering provision ultra vires and not in conformity with s. 101(1)(a), 102(2) ad 102(3) of the Act. They also claimed the designation and their ineligibility to claim refugee status infringed their rights guaranteed under sections 7 and 15 of the Charter and were not justified under s. 1. The Fed. Court rejected the ultra vires argument but held s. 159.3 of the Regulations and s. 101(1)(e) of the Act infringed s. 7 of the Charter and were not justified under s. 1The court found it unnecessary to consider whether the provisions also infringed s. 15. The appellate court allowed the appeal, dismissed a cross-appeal on the ultra vires and s. 15 issues, set aside the Fed. Court decisions, and dismissed the applications for J.R. “The application for leave to appeal…is granted. The decision on costs is referred to the panel hearing the appeal.”


Contracts: Unconscionability

Gustafson v. Input Capital Corp., 2021 SKCA 56 (39691)
A contractual relationship between Input Capital Corp. (“ICC”) and Mr. Gustafson and related farming corporations (“Gustafson Farms”) spanned ten different contracts entered by the parties at various times. Gustafson Farms defaulted on its delivery obligations and ICC commenced two actions against it, seeking inter alia foreclosure under the security agreements or judicial sale of mortgaged lands. The trial judge determined the agreements were unconscionable, and set them aside. The Sask. C.A. allowed the appeal. The S.C.C. ordered the Sask. C.A.’s decision be remanded to the Sask. C.A. to be reconsidered in light of its decision in Uber Technologies Inc. v. Heller, 2020 SCC 16. The Sask. C.A. affirmed its decision dated August 16, 2019. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Assault

Theriault v. R., 2021 ONCA 517 (39768)
The Applicant and his brother were jointly charged with having committed an aggravated assault against the complainant, a young black man. The complainant said he was walking down the street when the Applicant, an off‑duty police officer, and his brother accosted him; the complainant responded by running away. The Applicant said he and his brother surprised the complainant stealing from their parents’ truck, and when the complainant fled, they pursued him in order to arrest and detain him. When the Applicant and his brother caught up with the complainant, a violent altercation ensued and the complainant was beaten by the Applicant and his brother, causing a serious injury to the complainant’s eye. The trial judge was left with reasonable doubt as to the Applicant’s intent when he pursued the complainant and also as to whether he had been acting in self‑defence, but he accepted the Applicant had hit the complainant with a pipe after the complainant had retreated from the struggle. The trial judge concluded the blow had not caused the eye injury, and he found the Applicant guilty of the lesser and included offence of common assault. The Ont. C.A. dismissed the Applicant’s appeal and upheld the conviction for common assault. “The application for leave to appeal…is dismissed.”

Criminal Law: Dangerous Offenders

Valle-Quintero v. R., 2021 ONCA 390 (39784)
Mr. Valle‑Quintero was convicted on three counts of assault, wilful damage to the complainant’s vehicle, threatening to cause death or bodily harm, attempt to obstruct justice, breach of a recognizance order, and breach of a court order. The Crown applied to declare him a dangerous offender. The trial judge was replaced by his first cousin who presided over the sentencing proceedings, declared Mr. Valle‑Quintero a dangerous offender, and ordered an indeterminate sentence. The Ont. C.A. dismissed an appeal from the convictions and sentence. “The application for leave to appeal…is dismissed.”

Criminal Law: Homicide; Delay

B. v. R., 2020 QCCA 4 (39645)
There is a publication ban in this case, as well as a sealing order; certain information is not available to the public, in the context of a homicide charge and the issue of delay. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”

Criminal Law: Long Term Offenders

Yombo v. R., 2020 QCCA 1738 (39725)
The Applicant, Émile Yombo, pleaded guilty to a total of 12 charges, most of them for crimes of violence involving the use of pepper spray. Pre‑sentence and psychiatric reports indicatedt Mr. Yombo had a [translation] “high” or “major” risk of reoffending. A Court of Québec judge found Mr. Yombo to be a long‑term offender. He was made subject to long‑term supervision for five years. He was given an aggregate sentence of 45 months’ imprisonment but granted a 24‑month credit for pre‑sentence custody. The C.A. dismissed Mr. Yombo’s motion to adduce fresh evidence, granted his motion for leave to appeal the sentences and dismissed his appeals from the long‑term offender designation and the sentences. With regard to the lawfulness of the long‑term offender designation, the Qué. C.A. found when an application for such a designation is being considered, it is the total sentence for all offences must meet the minimum threshold of two years’ imprisonment, before pre‑sentence custody is taken into account. In light of the evidence as a whole, it had not been shown the long‑term offender designation was unreasonable or the proceedings had been unfair. “The application for leave to appeal…is dismissed.”

Criminal Law: Preliminary Inquiries

S.S. v. R., 2021 ONCA 479 (39797)
There is a publication ban in this case, in the context of interpretation of s. 535 of the Code re the right to a preliminary inquiry. “The application for leave to appeal…is dismissed.”

Defamation: Limitation Periods/Prescription

Guimont, et al. v. Bussières, et al, 2019 QCCA 280 (39653)
The Applicants complained about a newspaper article that had appeared in the Le Soleil newspaper on March 14, 2012 and been published on Gesca’s website. The article concerned the dismissal of Roch Guimont’s lawsuit against the city of Québec. Mr. Guimont did not read the article, which he considered defamatory, until June 2016. He then sent the Respondents a demand letter asking for a retraction or for the removal of the article from the website. On December 9, 2016, the Applicants filed a judicial application against the Respondents claiming $500 K for the violation of their fundamental rights. On July 10, 2017, the Superior Court allowed the Respondents’ exception to dismiss on the ground of prescription and dismissed the application. On February 18, 2019, the Qué. C.A. unanimously dismissed the appeal. It began by finding the Press Act could not apply to an article published on a 24‑hour news website. It then concluded the alleged facts and the exhibits, particularly the article in question, did not support the conclusions sought by the Applicants and their application was therefore unfounded in law. “The application for leave to appeal…is dismissed.”

Human Rights: Discrimination

Gichuru v. Vancouver Swing Society, et al., 2021 BCCA 103 (39736)
While volunteering at the Vancouver Swing Society (“VSS”), the Applicant complained he was being harassed and bullied by a female member. Looking into the matter, the VSS determined the Applicant’s conduct with younger female members was problematic. It ultimately banned him from volunteering or attending events. The Applicant brought a complaint to the Respondent Tribunal, alleging discrimination on the basis of age, sex and race. He complained one of the VSS directors informed him age and gender were factors the society took into account in responding to harassment complaints and had sent him a link to an article stereotyping the behavior of older men. The Tribunal advised the Applicant his complaint would be rejected for filing unless he provided more detail on how age, sex and race factored into the VSS decision to ban him. Finding the Applicant’s additional information to be insufficient, the Tribunal refused to accept his complaint for filing. The Applicant filed a petition for J.R. A judge of the B.C.S.C. adjourned the hearing, recommending the Applicant seek a reconsideration of the screening decision. The Tribunal denied the application for reconsideration on the basis the new evidence did not support the allegations of discrimination or justify a reversal of the Screening decision. On the matter’s return to the court for J.R., the B.C.S.C. ultimately dismissed the petition and the B.C.C.A. dismissed the appeal. “The application for leave to appeal…is dismissed.”

Tax: International Tax Treaties

Blue Bridge Trust Company Inc. v. Minister of National Revenue, 2021 CAF 62 (39682)
Between 2012 and 2017, the French government, under art. 26 of the Convention Between Canada and France for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital (Convention), sent requirements for information and documents (RFIs) to the Respondent, the Minister of National Revenue (Minister), concerning French residents whose taxes were being audited in relation to alleged links between them and Canadian trusts. The Minister then sent the RFIs, under section 231.2(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), and art. 26 of the Convention, to the trustees of 14 trusts that are now under the trusteeship of the Applicant, Blue Bridge Trust Company Inc. After various exchanges between the parties in 2014 and 2017 in which the trustees, among other things, expressed concerns about the use of the information being requested by the French tax authorities, which they felt could result in double taxation, the trustees essentially refused to comply with the RFIs. They filed, in the Fed. Court, applications for declaratory relief and for J.R. against the Minister, seeking orders under ss. 18(1)(a) and 18.1(3)(b) of the Federal Courts Act; declaring they were not required to comply with demands made under French tax law; prohibiting the Minister from sending the trustees an RFI enjoining them to send the amounts of capital, the identities of the beneficiaries and the financial statements of the two trustees and any other trusts resident in Canada of which they were trustees; prohibiting the Minister from providing the French tax authorities with the amounts of capital, the identities of the beneficiaries and the financial statements of the two trustees and any other trusts resident in Canada of which they were trustees. The Minister in turn brought proceedings in the Fed. Court for compliance orders under s. 231.7 of the ITA with respect to each of the RFIs sent to the trustees. The Fed. Court dismissed Blue Bridge’s applications and ordered it to provide the information and documents sought by the Minister. The Fed. C.A. dismissed the appeal. “The motion for a stay of execution is dismissed. The application for leave to appeal…is dismissed with costs.”