Ottawa drops appeal in political activity case, ending charities’ 7-year audit nightmare


The Liberal government has withdrawn its appeal of a stunning 2018 court ruling that quashed a section of the Income Tax Act limiting the political activities of charities.

The landmark case was launched a tiny Ottawa charity, Canada Without Poverty, which argued that the section violates the Charter of Rights guarantee of freedom of expression.

Justice Edward Morgan of the Ontario Superior Court of Canada agreed in his July 16 ruling, declaring that the section no longer had any « force and effect. »

Canada Without Poverty had been under threat of losing its charitable status after auditors at the Canada Revenue Agency (CRA) determined that 98.5 per cent its activities were political. Charity law, as it was written at the time, had limited political activities to no more than 10 per cent of an organization’s resources, though critics have said the law’s definition of ‘political’ was too fuzzy.

Leilani Farha, head of the tiny Ottawa charity Canada Without Poverty, helped launch the court challenge of the political-activity limits in charity law, saying it restricted freedom of expression. An Ontario court agreed. (Idil Mussa/CBC News)

After losing the case, the Liberal government eventually agreed to rewrite the Income Tax Act to accommodate Justice Morgan’s ruling – but paradoxically announced Aug. 15 it was appealing the case because of an alleged error of law in the judgment.

Anne Ellefsen-Gauthier, spokesperson for National Revenue Minister Diane Lebouthillier, told CBC News the government still believes Morgan made an error in law by applying a test for religious freedom rather than for freedom of expression.

But after consulting with the charity sector last fall and reviewing higher court rulings, the government has decided not to fight the Ontario case because little would be gained by the effort.

« Higher courts have already been pretty clear on the different test that needs to be applied to freedom of expression, » said Ellefsen-Gauthier. « We’re dropping the appeal. »

The law amended

The Liberal government has since amended the Income Tax Act, under Bill C-86, to remove all reference to political activities for charities. The omnibus bill, one of two implementing last year’s budget measures, received royal assent on Dec. 13, 2018.

The department also recently published a guidance document to inform the charity sector on how the new regime — which still includes a strict prohibition on partisan activities — will be applied. Notably, the term « political activities » has been replaced by the phrase « public policy dialogue and development activities. »

But charities still cannot endorse or support political parties or candidates for office, something the sector has always accepted.

Ottawa’s decision Thursday appears finally to end a long nightmare for some charities targeted by a special CRA auditing program launched in 2012 by the former Conservative government to review the political activities of charities. More than $13 million was earmarked for audits of 60 charities over four years.

The Conservative government of Stephen Harper launched a four-year program to audit the political activities of charities beginning in 2012. Some $13 million was budgeted for the program, which targeted 60 charities. (Tom Hanson/Canadian Press)

In its first year, the controversial program targeted environmental charities, most of which were critics of the government’s energy and pipelines policies. It was later expanded to include religious and human rights charities, among others. The targeted charities said the audits drained precious resources and in some cases led to an « advocacy chill » as groups self-censored so as not to aggravate the government.

The Liberals campaigned in the 2015 federal election on ending the « political harassment » of charities but did not halt the audit program immediately, winding it down only in stages and letting some audits continue. The program has since been cancelled.

« The decision to let Justice Morgan’s decision stand is a huge victory for democracy in Canada, » said Leilana Farha, head of Canada Without Poverty.

« The government has done the right thing twice. First they made the legislative changes recommended by the government’s appointed panel and ordered by Judge Morgan, and now they have properly decided to withdraw their appeal … »

« This decision puts Canada in the lead among common law countries and will have a positive effect not only in Canada, but worldwide. »

Follow @DeanBeeby on Twitter


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Canadian sentenced to death in China on drugs charges will appeal: lawyer – National


A Canadian man sentenced to death by a Chinese court for drug smuggling will appeal his sentence, his lawyer told Reuters on Tuesday.

The Dalian Intermediate People’s Court in Liaoning province re-tried Robert Lloyd Schellenberg, who had appealed his original 15-year prison sentence, and decided on the death penalty on Monday.

READ MORE: Canadians urged to exercise caution in China amid ‘arbitrary enforcement’ of laws

Schellenberg was told in court he had the right to appeal to Liaoning High Court within 10 days upon receiving the ruling, the intermediate court said in a second statement.

“It is of extreme concern to us as a government, as it should be to all our international friends and allies, that China has chosen to begin to arbitrarily apply (the) death penalty … as in this case,” Trudeau told reporters in Ottawa.

WATCH: Trudeau says government will intercede in Canadian facing death sentence in China

Late on Monday, Canada’s foreign ministry updated its travel advisory for China to warn citizens about “the risk of arbitrary enforcement of local laws.”

It added: “We continue to advise all Canadians traveling to China to exercise a high degree of caution.”


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B.C. couple convicted in legislature bomb plot freed by Appeal Court


B.C.’s Appeal Court has upheld a ruling that gave a couple convicted of planting explosive devices on the grounds of the legislature their freedom in 2016.

In a unanimous decision released Wednesday morning, the Appeal Court sided with a B.C. Supreme Court judge who stayed proceedings in the terrorism trial of John Nuttall and Amanda Korody on the grounds that the police investigation was a « travesty of justice. »

Nuttall and Korody were found guilty of terrorism offences in June 2015. (RCMP)

While the 141-page judgment faults Justice Catherine Bruce’s findings in a number of areas, the Appeal Court found that the RCMP may have been right to launch an undercover operation against the Surrey, B.C., couple — but they went « far beyond investigating a crime. »

« They pushed and pushed and pushed the two defendants to come up with a workable plan, » read the ruling, written by Justice Elizabeth Bennett and handed down in Vancouver.

« The police did everything necessary to facilitate the plan. »

‘Police do not have a free hand’: ruling

A jury convicted Nuttall, 44, and Korody, 35, of terrorism-related offences in 2015, but Bruce stayed proceedings on the grounds that police had entrapped the pair in an investigation that amounted to an abuse of process.

The two had been accused of plotting to plant pressure cooker bombs on the grounds of the provincial legislature in Victoria with the aim of murdering tourists during Canada Day festivities in 2013.

Bruce found that police did not have reasonable suspicion to start an investigation against the two after their initial inquiries following a complaint from a member of the public who claimed Nuttall had been espousing violent views at local mosques. 

The justice also found that police essentially directed the couple on how to commit the crime because they weren’t capable of figuring it out for themselves.

Nuttall and Korody embrace at B.C. Supreme Court after the judge stayed proceedings against them in July 2016. (Darryl Dyck/Canadian Press)

The Appeal Court faulted Bruce on finding the RCMP lacked reasonable suspicion with regards to Nuttall and Korody, but said that, even so, the conduct of police in guiding the pair to the bomb plot would still constitute entrapment.

« Terrorism offences are some of the most serious crimes in our law, » the appeal judgment said.

« On the other hand, the police do not have a free hand to do whatever they wish in order to investigate crime, even serious crime. The concepts of fairness and justice are still highly relevant and police conduct undertaken in the investigation of crime must be balanced against them. »

John Nuttall and Amanda Korody listening in court as the judge stayed the proceeding in their terror trial, as depicted by a sketch artist. (Felicity Don/CBC)

The Appeal Court judges also faulted Bruce for directing the jury to find the pair not guilty on charges of facilitating a terrorism offence on the grounds they could not have facilitated each other. But even with those charges reinstated, the Appeal Court said a stay of proceedings should still be entered because of the entrapment.

The Appeal Court judgment includes a call to Parliament to streamline the language around terrorism offences for the benefit of « those members of the public who sit as jury members on such cases. »

Although the ruling will have the effect of freeing Nuttall and Korody, they still face the possibility of provincial court proceedings relating to a Crown application for a peace bond win proceedings that began after Bruce’s ruling.

Both remain on bail in relation to the peace bond proceedings.


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Terrorists or targets? Appeal court to decide fate of B.C. couple accused in bomb plot


B.C.’s Court of Appeal will hand down a decision on Wednesday that could see a Surrey couple sent to jail for planting explosive devices on the grounds of the provincial legislature.

A jury found John Nuttall and Amanda Korody guilty of terrorism offences in 2015. But a B.C. Supreme Court judge stayed the proceedings in 2016 after finding the pair had been entrapped by police in an investigation that amounted to an abuse of process. 

A panel of judges on the higher court will decide whether to set aside Justice Catherine Bruce’s ruling. 

If they do, the guilty verdicts stands and the trial will move to sentencing. If they don’t, the proceedings remain stayed. However, either outcome could be appealed to the Supreme Court of Canada. 

The proceedings mark the latest chapter in an extraordinary legal odyssey that began more than five years ago when the RCMP said it had foiled a plot to set off pressure cooker bombs during the 2013 Canada Day festivities in Victoria.

But two very different versions of events were argued in court.

Nuttall and Korody, shown here in a still image taken from an RCMP undercover video, were found guilty of plotting to set off pressure cooker bombs at the B.C. Legislature. (Canadian Press)

The Crown contended Nuttall and Korody were « aspiring terrorists committed to violent jihad » while the defence claimed they were hapless fools who police had to all but hand-lead into plotting terrorist acts.

In her lengthy decision, Bruce delivered a blistering assessment of the case.

« Simply put, the world has enough terrorists, » she said. « We do not need the police to create more out of marginalized people who have neither the capacity nor the sufficient motivation to do it themselves. »

‘Unrealistic, unfeasible and grandiose’

Police began investigating Nuttall in 2012 after a member of the public claimed he had been « espousing violent Islamic beliefs » and had claimed to have killed a Jewish woman.

Nuttall, 44, who converted to Islam in 2011, claimed he was joking. Prior to 2012, he showed up on police records largely for drug-related offences. 

Korody, 35, had no criminal record and was only listed on police databases in connection with Nuttall, with whom she had been living on the streets of Victoria in 2009 and 2010.

The RCMP’s national security team began investigating in consultation with the Canadian Security Intelligence Service.

Nuttall and Korody are seen in an artist’s sketch during their trial in Vancouver in 2015. (Felicity Don/Canadian Press)

Police ultimately launched an elaborate undercover operation that saw a Muslim officer posing as a jihadi work his way into Nuttall and Korody’s confidence.

Together, they embarked on the bomb plot.

But as Bruce pointed out, the couple’s ideas were « unrealistic, unfeasible and grandiose » — they talked about hijacking a nuclear submarine, taking the world hostage and building rockets to free Palestine.

In Victoria, where he had once lived, Nuttall forgot the location of the parliament buildings. He kept losing things and the judge found that without the « constant prodding and refocusing » of police he never would have completed his shopping list for the bombs. Korody spent most of the time asleep.

‘The RCMP manufactured the crime’

The law surrounding entrapment goes to the heart of the judicial system and the need to maintain confidence in the actions of police officers tasked with tricky investigations.

Bruce noted a critical distinction between situations in which police — acting on reasonable suspicion — « provide an opportunity to a person to commit a crime, on the one hand, and the state actually creating or inducing a crime for the purpose of prosecuting an accused. »

She stayed the proceedings on three grounds; two relating to entrapment and a third concerning abuse of process. 

First, the judge found police started the undercover operation without reasonable suspicion Nuttall and Korody were already engaged in criminal activity. Surveillance revealed they « did very little outside their home, » she said. 

The Crown’s appeal has been largely based on arguments that, in staying the proceedings, Justice Catherine Bruce misread the facts of the case. (Mike McArthur/CBC)

Second, Bruce found police « knowingly exploited » the pair’s vulnerabilities « to induce them to commit the offences. »

The judge said it wasn’t a situation where RCMP foiled a pre-existing plan or where terrorists or people with skills terrorists might value were targeted.

« This is truly a case where the RCMP manufactured the crime, » Bruce wrote.

Finally, Bruce found the « illegal acts » police committed during the undercover operation and the way the undercover operative used religious talk to dispel their fears amounted to an abuse of process.

« It cannot be said that the police acted in bad faith; however, they did not act in good faith, » Bruce wrote.

The Crown’s appeal has been largely based on arguments that Bruce misread the facts of the case. To be successful, the appeal court judges will have to find that Bruce was wrong on all three of her findings.

After the proceedings were stayed in 2016, the Crown sought a peace bond against Nuttall and Korody, but a provincial court judge has held off hearing those arguments until the appeal court ruling.

The pair are currently on bail associated with the peace bond application.


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IN8 Developments to appeal Capital Condo denial – Kingston


It appears the fight over the Capital Condo is not over.

In an email to Global Kingston, Darryl Firsten of IN8 Developments, the company behind the proposed 16-story high-rise at 223 Princess St., said he is in the process of appealing the Nov. 9 ruling made by the Local Planning Appeal Tribunal (LPAT) to deny the condo.

“The team decided to pursue an appeal to divisional court to determine whether errors had been made on the interpretation of various points of law and to ensure a balanced, comprehensive reading of the city’s Official Plan in its entirety,” the email stated.

Capitol Condo rejected by Local Planning Appeal Tribunal

Firsten in a phone interview with Global Kingston said that his company is not giving up on building in the city’s core.

“We are extremely committed to downtown Kingston, to Kingston at large,” said Firsten. “We believe the LPAT decision is catastrophically bad for downtown Kingston. Not just for our project, but this will severely harm any future intensification.”

Opponents of the project had long-argued that the height of the development would far exceed the 6 storeys permitted under the city’s Official Plan. After years of legal back-and-forth, the LPAT ruled in the opponents’ favour on Nov. 9.

Firsten now says his group will file addition paperwork over the next month while they await a pre-hearing to be scheduled.

He also said the appeal could take up to 24 months.

WATCH: Beyond the Headlines: What killed the Capitol Condo

This story will be updated as new information becomes available.

— With files from Mark Ladan and Alexandra Mazur.

© 2018 Global News, a division of Corus Entertainment Inc.


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Helmut Oberlander tries appeal of citizenship stripping over Nazi unit past


An elderly man has launched yet another challenge to his loss of citizenship and potential deportation for lying to Canadian authorities about his membership in a Second World War Nazi death squad.

The notice of appeal from Helmut Oberlander comes even though a Federal Court judge recently ruled that Ottawa had acted reasonably in the case and limited his ability to appeal.

Lawyers for Oberlander, 94, of Waterloo, Ont., refused on Friday to discuss the appeal notice filed this week, so the legal underpinnings of their action were not immediately evident.

However, in a letter sent to the court, the federal government made it clear that it objects to the filing.

The letter further asks that the Federal Court of Appeal registry forward the appeal notice to the court for review.

Revoked citizenship

The Ukraine-born Oberlander, who came to Canada in 1954 and became a citizen six years later, has steadfastly maintained he was just 17 when he was forced on pain of execution to join the Nazi death squad Einsatzkommando 10a, known as Ek 10a.

The squad was responsible for killing close to 100,000 people, mostly Jewish.

In June 2017, the government revoked the retired businessman’s citizenship for the fourth time since the mid-1990s, prompting his current effort to stave off deportation.

Earlier this month, Federal Court Judge Michael Phelan lifted a stay on his earlier decision that the government had been reasonable in stripping citizenship from Oberlander.

Phelan found that Oberlander had misrepresented his war-time activities even though no evidence existed that he took part in any atrocities.

« It is uncontested that Oberlander obtained his Canadian citizenship by false representation or by knowingly concealing material circumstances by failing to disclose involvement in the SS at the time of his immigration screening, » Phelan wrote.

« There is no doubt that to have done so would have resulted in the rejection of his citizenship application. »

Phelan also refused to « certify a serious question of general importance » that would have allowed Oberlander to appeal the merits of the decision itself under immigration law.

Oberlander may yet be able to persuade the Federal Court of Appeal to hear the case on grounds outside of the Immigration Act but the higher court generally hears only a fraction of cases decided by Federal Court.

In September, Immigration Minister Ahmed Hussen said Canada should never be a « safe haven for war criminals and people who’ve been accused of crimes, who’ve committed crimes against humanity. »


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Appeal court strikes down reduced, ‘artificial’ sentence for convicted refugee


The Manitoba Court of Appeal has overturned a reduced sentence handed down by a Manitoba judge to prevent the deportation of a convicted refugee.

In its Oct. 31 decision, the court looked at « the extent to which a sentencing judge can craft a sentence in order to avoid collateral immigration consequences. »

Mustaf Ahmed Yare, 23, pleaded guilty to four charges after ramming a police car and then leading police on a chase before crashing into a sign post in September 2017.

The decision states that Yare threatened officers while he was being taken to the police station by saying: « I’m going to get my gang and I’m going to find you and kill you. I’m a real gangster and you will die. Trust me, you fucking goofs. »

The Crown sought a sentence of 18 to 19 months in jail, but ultimately the judge imposed a sentence of five months and 25 days of incarceration.

During the sentencing the judge concluded Yare « ought to be jailed for about a year for these charges, » according to the Court of Appeal’s decision.

Yare is a permanent resident of Canada, therefore subject to the Immigration and Refugee Protection Act, which requires a punishment of at least six months in connection with a serious crime.

The sentencing judge acknowledged that a term greater than six months might result in deportation.

The panel of three appeal court justices said in their view an artificial sentence had been imposed. They imposed a sentence totalling 13 months and 10 days incarceration, which had been served prior to the appeal.

Yare was arrested after his release and has a court appearance in the new year. He is charged with five offences including assault with a weapon and uttering threats. 


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Court rejects Regina’s appeal on Capital Pointe project – Regina


The Court of Queen’s Bench has heard, and rejected the City of Regina’s Capital Pointe appeal.

Justice Timothy Keene upheld the decision the board made in late August that the Capital Pointe site is safe.

That means Capital Pointe is not forced to backfill the site.

Fictitious buildings, pig farms and further delays highlight latest Capital Pointe appeal

“The overwhelming scientific evidence was that the site was safe, and more importantly the manner in which the city went about making their determination as was exposed in the cross-examination further justified that this site was not in an unsafe condition,” said Neil Abbott, counsel for WestGate Properties LLD.

The one thing the justice did agree with the city was that the board should have given the City of Regina and the developer a chance to hear the possible solutions they would offer, and add their own input.

Capital Pointe must begin work on the shoring no late than Dec. 8.

The court ruling also calls for designs for the building and a building permit application to be submitted no later than Feb. 28, 2019, with construction beginning by April 1, 2019, and concluding no later than March 30, 2022.

© 2018 Global News, a division of Corus Entertainment Inc.


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Attempt to appeal ’60s Scoop settlement tossed for ‘extreme’ lack of evidence


A last-ditch effort to challenge the court-approved settlement of the ’60s Scoop class action failed Friday when a judge tossed the novel attempt as lacking any substance.

In his decision, Judge John Laskin of the Federal Court of Appeal said the applicants had provided no support for their highly unusual motion seeking leave to appeal the settlement.

« The evidence filed by the applicants is inadequate in the extreme, » Laskin wrote.

The ruling, barring any further court machinations, paves the way for implementation of the $750-million class-action settlement. The federal government had said it could not proceed with payouts to victims pending finality in the court proceedings.

The request to appeal the agreement finalized over the summer rather than opt out — fewer than a dozen class members did so — came from a group of 11 claimants who said they were Scoop victims, although two of the plaintiffs subsequently dropped out of the proceeding.

They filed their application through a law firm that had been shut out of the $75 million in legal fees agreed to as part of the class-action settlement.

Among other things, they alleged they were excluded from the process that led to court approval of the agreement that would pay survivors as much as $50,000 a piece for the harms done when they, as children, were taken from their Indigenous families and placed with non-Indigenous ones. They also expressed unhappiness over the fees awarded to the lawyers who negotiated the deal.

Laskin noted the applicants had failed to show they were survivors of the ’60s Scoop and therefore members of the class. Nor did they provide evidence that an appeal of the settlement would be in the best interests of survivors, he said.

Seeking legal costs

One of the applicants, Joan Frame, of Hamilton, had alleged to The Canadian Press that the lawyers who negotiated the settlement — some of whom worked on the case for free for the better part of a decade — « resorted to trickery » to get the agreement.

« To allow people to win illegally and make money off our backs and suffering again should not be allowed to happen, » Frame had said.

Laskin also took issue with such assertions, saying the applicants had offered no evidence in support.

While it is normal in litigation for the losing party to be on the hook for the legal costs incurred by the winners, the winning lawyers are seeking costs personally from the lawyer who filed the appeal motion given the serious misconduct allegations he made against them.

Laskin declined to award costs until Jai Singh Sheikhupura with Vancouver-based Watson Goepel has had an opportunity to make submissions. He has until Nov. 19 to do so.

« We are pleased that the Federal Court of Appeal has cleared away the last impediment to the settlement being implemented, » said Kirk Baert, one of the lawyers involved in the class action. « Now the settlement funds can flow to the survivors as intended. »

The $75 million in legal fees, which the federal government agreed to pay to four legal firms separately from the compensation to the Scoop survivors, became a flashpoint earlier this year when Ontario Superior Court of Justice Edward Belobaba said they were far too high.


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Police appeal to public in investigation of attempted murder in Mississauga


Peel police are seeking witnesses and information in their investigation of the attempted murder of a woman found with life-threatening injuries in Mississauga on Wednesday night.

The 44-year-old woman was discovered in a residence on Bayberry Dr., in the Meadowvale area, around 8 p.m., said police. She was taken to a trauma centre, where, they said, she remains in critical condition.

Police said that a forensic investigation of the residence on Thursday revealed evidence of a crime, including the weapon they believe was used on the woman.

Const. Akhil Mooken, a spokesperson for Peel police, said the woman was harmed with an “edged weapon,” but said police are not releasing more information as of yet.

They are appealing to the public or any witnesses to come forward with information by contacting police directly or anonymously through CrimeStoppers.

Premila D’Sa is a breaking news reporter, working out of the Star’s radio room in Toronto. Follow her on Twitter: @premila_dsa


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