Law Times

Law Times • January 16, 2012 CaseLaw tiff did not prove defendant's con- duct was malicious, oppressive and highhanded. Jacques v. Hipel Estate (Sep. 7, 2011, Ont. S.C.J., Parayeski J., File No. E-564-05) 207 A.C.W.S. (3d) 179 (23 pp.). Family Law CHILD WELFARE Mother unable to alleviate or prevent harm to child Parents were separated. Child re- mained in mother's primary care. Child was apprehended. Society brought motion for summary judgment. Society argued there was no triable issue that at time child suffered emotional harm, was at risk of suffering emotional harm and mother was unable to alleviate or prevent harm, and child was in need of protection. Motion was allowed. Child was found to be in need of protection. There was no evidence in dispute that constituted triable issue. Child was suffering emotional harm. There was no evidence to contrary to clear and obvious record of child's response to do- mestic turmoil child was exposed to leading up to child's apprehen- sion. There was no genuine issue for trial of disposition. Custody of child was to be with father. So- ciety was to assist mother and fa- ther in setting up access schedule by therapeutic counselling. Children's Aid Society for the County of Simcoe v. A. (M.) (Aug. 29, 2011, Ont. S.C.J., Eberhard J., File No. 09-1159) 207 A.C.W.S. (3d) 94 (12 pp.). FEDERAL COURT OF APPEAL Taxation INCOME TAX Prospect of loan repayment could not have been excluded Tax Court Judge dismissed ap- peals from reassessments disal- lowing business investment loss- es claimed by appellant for his 2004, 2005, 2006 and 2007 taxa- tion years on basis that he had failed to demonstrate that debts which formed basis of claimed losses were bad, as contemplated by s. 50(1) of Income Tax Act (Can.). Appellant was sole share- holder and employee of company engaged in scientific research and experimental development. Company had taxation year which coincided with calendar year. For each of taxation years at issue, company paid appellant one-time salary by cheque on December 31st. On same day, appellant lent company amount of money equal to salary by issu- ing personal cheque payable to company. In filing his tax returns for each of years in question, ap- pellant took position that as of date of loan amount so loaned was bad debt thereby giving rise to claimed losses. Appeal was dismissed. In order to succeed, it was incumbent upon appellant to show that he could reasonably foresee that loans would not be repaid on December 31st of each year. As Tax Court Judge found, it was apparent that appellant never turned his mind to this is- sue and that if he had, prospect of repayment could not have been excluded. Tax Court Judge prop- erly held that debts underlying claimed losses were not shown to have become bad in any of years in issue. Sunatori v. Canada (Sep. 16, 2011, F.C.A., Noel, Nadon and Stratas JJ.A., File No. A-336-10) Decision at 191 A.C.W.S. (3d) 1333 was af- firmed. 207 A.C.W.S. (3d) 163 (6 pp.). ONTARIO CRIMINAL CASES Appeal NEW TRIAL Lack of judicial guidance leſt accused without information to effectively address key issues Appeal by accused from his con- victions on two counts of threat- ening to cause bodily harm and for one count of assault. Accused represented himself at trial. He claimed that trial judge failed to provide him with the minimal level of assistance to ensure that he had a fair trial. Appeal allowed. Guilty findings were set aside and new trial was ordered. Judge at- tempted to provide accused with some guidance regarding trial process. However, apart from telling accused that Crown would call its witnesses first, he provided no further explanation about tri- al process before accused was ar- raigned and Crown commenced calling its case. Judge's failure to explain elements of offences and nature and incidence of burden of proof was significant omission. Accused was 67-years old and he had never been charged with an offence before. He was not fa- miliar with court processes or with legal principles that applied to this case. Absence of judicial guidance leſt accused without information to effectively address key issues of this case. He did not have a fair trial. R. v. Rice (Sep. 26, 2011, Ont. S.C.J., MacDonnell J., File No. 15/11 AP) 97 W.C.B. (2d) 338 (6 pp.). Assault COMMON ASSAULT Court had to acquit when there was reasonable doubt as to identity Accused was charged with assault with intent to steal and wearing a disguise. Accused was identified by three witnesses when he tried to rob one of them and the oth- ers struggled with him. Assailant was hit by a shovel about the head and leg by one party and his ski mask was partially removed dur- ing a struggle. Complainants had known accused for approximately 12 years. Crown submitted that there was no evidence that any visible injuries were inflicted by the shovel and when the mask was pulled over assailant's face, none of the witnesses saw blood or injuries. Crown emphasized that all three of its witnesses knew accused and that their identifica- tion of accused could not be com- pared, for example, to identifica- tion from an array of photographs or from a lineup. There were shad- ows at the scene but evidence was that lighting was good. Accused presented alibi evidence from his mother's testimony who said that she heard accused at home dur- ing time of attack. Residence was located 15 to 20 minutes away and police did not discover any mask nor any visible injuries to accused. Accused found not guilty. Court had some doubt aſter testimony from complainants as mask was never totally removed from assail- ant. Court had no reason to doubt veracity of accused's mother who offered credible evidence that ac- cused was at home. Court noted that it was not a credibility contest and applied R. v. W. (D.) test and had to acquit when there was rea- sonable doubt as to identity. R. v. Swerdlyk (Sep. 22, 2011, Ont. S.C.J., Shaw J., File No. CR-09- 0082) 97 W.C.B. (2d) 393 (19 pp.). CAUSING BODILY HARM WITH INTENT Disgrace accused suffered involved real stigma Accused received suspended sen- tence and nine months probation following guilty plea to causing bodily harm. Accused and com- plainant met for purpose of sexu- al encounter. Encounter included rough sex, consensual oral sex, vaginal sexual intercourse, for which there was no complaint, followed by consensual anal penetration and resulting bodily injury to complainant. Com- plainant's consent was vitiated by bodily harm. Accused was 27 years old and had no criminal record. Accused had college di- ploma and was active volunteer in community. Leniency was required. Accused and com- plainant were engaged in legal consensual anal intercourse that slid over into criminal conduct. Recidivism was not issue and this was not case for incarceration. Disgrace accused suffered when he disclosed charges and cir- cumstances to his girlfriend and parents and loss of hard earned respect, involved real stigma. Value of probation lay in inherent restraint on freedom and burden of knowing that breach of terms would likely bring incarceration. Probationary period of nine months following period of re- strictive release conditions of over three years was sufficient to make point that even most upstanding citizen would be brought to task for crossing for- bidden line. Accused consented to order for $1,000 financial donation to women's shelter. Ten year weapons prohibition, DNA order. www.lawtimesnews.com R. v. Ceelen (Sep. 28, 2011, Ont. S.C.J., Leroy J.) 97 W.C.B. (2d) 400 (8 pp.). Evidence IDENTITY OF ACCUSED Witnesses were observant and detailed with good recollection of events Accused appealed conviction for "over 80". Witnesses saw accused slumped over steering wheel in unmoving vehicle at green light at major intersection. One witness approached vehicle and tapped on window, while other witness followed vehicle to residence and waited for police to arrive. Wit- ness testified that person police arrested was driver of vehicle. Trial judge held that both of witnesses had good opportunity to see driv- er at scene and gave almost identi- cal descriptions to police. Accused argued trial judge failed to address and resolve series of contentious and troublesome points. Accused argued trial judge misapprehend- ed evidence. Appeal dismissed. Trial judge resolved all of conten- tious issues. Trial judge was well aware of duration of witnesses' observations and circumstances under which they were made. It was open for trial judge to find that witnesses were observant and detailed with good recollection of events and that they gave almost identical descriptions to police. It could not be said that trial judge overlooked limited weight to be given to in-dock identification simply because specific words were not used reasons and where evidence of prior identifications was dealt with by trial counsel. Judge's statement that witness saw accused directly when witness only saw accused's face in profile was minor misstatement of evi- dence. Minor error did not meet stringent test required to set aside conviction. R. v. Gaspar (Sep. 23, 2011, Ont. S.C.J., Dawson J., File No. SCA(P) 726/10) 97 W.C.B. (2d) 376 (16 pp.). Sentence ABDUCTION Accused took 5-year-old child to Florida for 12 years contrary to court order Sentencing of accused mother af- ter she pleaded guilty of one count of abduction contrary to a family court order. In October 1995 ac- cused ended her common-law relationship with child's father and she took their son to live with her at her mother's home. In De- cember 1995 accused was award- ed custody and father was award- ed access. Order provided that neither party could remove child from Ontario without consent of other party or the court. In Janu- ary 1997 accused took 5-year-old child to Florida where they lived for 12 years. During that time fa- ther and his family did not know what became of them. In May 2008 accused and child returned to Canada and she surrendered to police. Accused was 62-year- old first offender. Based on na- ture, duration and consequences of this abduction, an actual cus- todial sentence was required. Ac- cused was sentenced to 6 months' imprisonment, to be followed by 2 years of probation. She also had to perform 120 hours of commu- nity service at rate of not less than 5 hours per month. R. v. Melville (Sep. 28, 2011, Ont. S.C.J., Ducharme J., File No. 10- 30000473-000) 97 W.C.B. (2d) 394 (13 pp.). SUPREME COURT OF CANADA Defences INTOXICATION Accused deprived of defence of self-induced intoxication given voluntary nature of drug use Accused convicted of aggravated assault for brutal assaults com- mitted while accused in state of toxic psychosis from voluntarily ingesting chemical drugs. Undis- puted that accused in psychotic state at material times, unable to understand nature and quality of act. Trial judge holding elements of s. 33.1 of Criminal Code pre- cluding self-induced intoxication as defence proved by Crown. Ac- cused arguing on appeal verdict of not criminally responsible on account of mental disorder under s. 16 should be entered. Court of appeal dismissing appeal, holding accused had no underlying dis- ease of mind, transitory psychosis caused by self-induced intoxica- tion. Court of appeal holding ac- cused's argument an attempt to circumvent purpose of s. 33.1 of precluding possibility for person to plead self-induced intoxica- tion to avoid liability for offending bodily integrity of complainants. Further appeal to Supreme Court dismissed. Accused's transitory psychosis, depriving him of ability to understand nature and qual- ity of act, caused by external fac- tor of external drug use. Internal cause factor test applied to de- termine whether toxic psychosis would occur in average person, in absence of underlying men- tal disorder. Evidence suggested transitory psychosis not caused by mental disorder, given rapid on- set, diminishment of symptoms surrounding drug use. As accused not suffering from mental dis- order, s. 16 defence unavailable. Section 33.1 of Code applied to deprive accused of defence of self- induced intoxication given volun- tary nature of drug use, departure of accused from standard of care by interfering with bodily integ- rity of complainants. R. v. Bouchard-Lebrun (Nov. 30, 2011, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33687) Decision at 90 W.C.B. (2d) 625 affirmed. 97 W.C.B. (2d) 366 (52 pp.). LT PAGE 15

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