R. v. Khan, 2019 ONCJ 29 - Exceptional circumstances for cocaine trafficking warranted a non-custodial sentence
Client plead guilty to trafficking cocaine after selling to an undercover police officer. Although the sentencing range for offenders who sell up to an ounce of cocaine usually receive a sentence between 6 months and 2 years imprisonment, due to "exceptional circumstances", the client received a non-custodial sentence with probation. The sentencing hearing consisted of multiple days and required preparation and a flexible approach in introducing the case by providing for a novel area of the law concerning online gaming and gambling addiction.
Kotai v. Canada (Citizenship and Immigration), 2018 FC 678 - Failure to consider contradictory evidence
The clients sought judicial review of a decision of the Refugee Appeal Division (RAD), which dismissed their appeal from a negative refugee determination by the RPD. The clients were a family of Hungarian citizens of Roma ethnicity - a husband, a wife, and their two minor children. The clients claimed that they had experienced several incidents of racially-motivated violence in Hungary, and that the children had been discriminated against in school ( they were segregated from non-Roma students ). On judicial review, the court found that the RAD s assessment of the children's claims disclosed a reviewable error. David Vago argued that the Refugee Appeal Division's reasoning on the children's claims demonstrated that the RAD did not actually analyze the issue before it. The court considered the sufficiency of the RAD's reasons. The RAD offered no explanation for its conclusion that the children's experiences did not amount to persecution, even though the issue was squarely argued in David Vago's appeal submissions, with extensive reference to the documentary record. The Federal Court found that the RAD's analysis was unreasonable; simply put, the RAD's reasons did not permit the court to understand why it decided the way it did. Therefore, the reasons were not transparent, intelligible or justified. The court also found that the RAD failed to engage with the documentary evidence, which contradicted its conclusions on the issue of adequate state protection. The court clarified that this was not to say that the decision was necessarily wrong with respect to state protection, only that there was a duty, given the inconsistent evidence, for the RAD to address David Vago's submissions. The court found that it was unreasonable for the RAD, when faced with David Vago's specific arguments that the RPD had ignored relevant evidence, to acknowledge that certain information before it supported the applicants' position, but failed to explain why it nevertheless upheld the RPD s analysis. The RAD's reasons demonstrated that it did not grapple with the substantive issue before it, and the court was unable to connect the dots. The RAD's decision was set aside, and the matter was remitted for reconsideration by a differently constituted panel.