Law Times

Page 14 July 9, 2018 • law Times www.lawtimesnews.com CASELAW Supreme Court of Canada Criminal Law APPEALS Appeal from conviction or acquittal Evidence accused f led scene to avoid liability for possession of stolen vehicle was proof of requisite intent Accused was charged with eight offences related to home break-in in which car was stolen. Accused was convicted of four offences, in- cluding f leeing scene of accident without leaving his name and address. Accused's counsel con- ceded his guilt on charge of f lee- ing scene of accident during final submissions. Accused appealed unsuccessfully. Accused ap- pealed to Supreme Court. Appeal dismissed. Conviction was not miscarriage of justice. Accused had control of vehicle involved in accident. He f led scene without providing name or address. In absence of evidence to contrary, this was proof of requisite intent for offence. Evidence on which accused relied was that he f led scene to avoid criminal liability for possession of stolen vehicle. This was not evidence to con- trary. Rather, it was evidence that accused intended to avoid crimi- nal or civil liability from his care, charge, or control of the vehicle involved in accident. Such intent fell within ambit of mens rea es- tablished by expression "intent to escape civil or criminal liability" in s. 252(1). Accused suffered no prejudice from trial counsel's ad- mission that elements of offence had been made out. R. v. Seipp (2018), 2018 Car- swellBC 60, 2018 CarswellBC 61, 2018 SCC 1, 2018 CSC 1, Wag- ner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2017), 2017 CarswellBC 226, 2017 BCCA 54, D. Smith J.A., Bennett J.A., and MacKenzie J.A. (B.C. C.A.). CHARTER OF RIGHTS AND FREEDOMS Unreasonable search and seizure [s. 8] Text messages may be protected against search and seizure Accused sent text messages re- garding illegal transactions in firearms. Police obtained war- rants to search accused's home and that of his accomplice, W. They seized accused's phone and W's phone, searched both devices, and found incriminat- ing text messages. At trial, ac- cused argued that text messages should not be admitted against him because they were obtained in violation of his right against unreasonable search and seizure under s. 8 of Canadian Charter of Rights and Freedoms. Appli- cation judge held that accused had no standing to argue that text messages recovered from W's phone should not be admit- ted against him. Text messages were admitted and accused was convicted of multiple firearms offences. Majority of Court of Appeal for Ontario agreed that accused could have no expecta- tion of privacy in text messages recovered from W's phone, and hence did not have standing to argue against their admissibil- ity. Accused appealed. Appeal allowed. Depending on totality of circumstances, text messages that have been sent and received may in some cases be protected under s. 8 of Charter, and, in this case, accused had standing to argue that text messages at issue enjoyed s. 8 protection. Accused had reasonable expectation of privacy in text messages recov- ered from W's phone. Subject matter of alleged search was electronic conversation between accused and W. Accused had di- rect interest in that subject mat- ter, he subjectively expected it to remain private, and that expecta- tion was objectively reasonable. R. v. Marakah (2017), 2017 CarswellOnt 19341, 2017 Car- swellOnt 19342, 2017 SCC 59, 2017 CSC 59, McLachlin C.J.C., Abella J., Moldaver J., Karakat- sanis J., Gascon J., Côté J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellOnt 10861, 2016 ONCA 542, J.C. MacPherson J.A., J. MacFarland J.A., and H.S. LaForme J.A. (Ont. C.A.). Evidence PRIVILEGE Public interest immunity Informer privilege not applicable where anonymous tip made to further criminal activity Crime Stoppers received anony- mous tip about fatal shooting. Accused was charged with sec- ond degree murder, and Crown brought application to introduce evidence of anonymous tip, al- leging call was made by accused to divert police attention away from himself. Accused denied making call, and he and Crime Stoppers claimed that call was covered by informer privilege. At in camera hearing, judge held that informer privilege did not apply. Accused and Crime Stop- pers appealed. Appeal dismissed. Informer privilege does not exist where person makes anonymous tip with intention of furthering criminal activity or interfering with administration of justice. Since Crown had already dis- closed tip to defence, there was no need for ex parte proceeding. Procedure followed by applica- tion judge was reasonable. R. v. Durham Regional Crime Stoppers Inc. (2017), 2017 CarswellOnt 15063, 2017 Car- swellOnt 17230, 2017 SCC 45, 2017 CSC 45, McLachlin C.J.C., Abella J., Moldaver J., Karakat- sanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.). Federal Court of Appeal Tax INCOME TAX Employment income Income allocated to taxpayer was not self-employed earnings as it did not arise from business Taxpayer retired as partner from professional financial services firm in 2007 and following year was allocated income from partnership. Taxpayer included income in 2008 tax return but did not include any amount for Canada Pension Plan (CPP) contribution payable in relation to income and was assessed on basis that income allocated to him resulted in CPP contribu- tion payable by him of $4,098.60. Almost 4 years later, taxpayer submitted adjustment request form and was reassessed in 2014 with net result of reassessment that taxpayer had balance pay- able of $2,210.03. Taxpayer filed notice of objection and was reassessed, with reassessment ref lecting original 2009 assess- ment. Taxpayer appealed to Tax Court of Canada and judge con- cluded that since that amount was included in his income as business income, it should also be treated as self-employed earn- ings for purposes of CPP. Tax- payer appealed. Appeal allowed. Since taxpayer had ceased to be member of partnership in 2007, he ceased to carry on business in common with other members of partnership at that time and as result was not carrying on busi- ness in common with other part- ners at any time in 2008 for pur- poses of CPP. Neither ss. 96(1.1) or 96(1.6) of Income Tax Act deemed taxpayer to be member of partnership or to be carrying on business for purposes of CPP. Since there was no other provi- sion that would deem him so, he would not be member of part- nership in 2008 for purposes of CPP and would not be carrying on business in 2008 for purposes of s. 14 of CPP. Income allocated to taxpayer for 2008 was not self- employed earnings for purposes of s. 14 of CPP as this income did not arise from business that he was carrying on in 2008. Freitas v. Canada (2018), 2018 CarswellNat 2686, 2018 FCA 110, Wyman W. Webb J.A., Mary J.L. Gleason J.A., and J.B. Laskin J.A. (F.C.A.); reversed (2017), 2017 CarswellNat 878, 2017 CarswellNat 9179, 2017 TCC 46, 2017 CCI 46, Diane Campbell J. (T.C.C. [Informal Procedure]). Federal Court Aboriginal Law GOVERNMENT OF ABORIGINAL PEOPLE Elections Employment at organizations affiliated with First Nation insufficient to give rise to reasonable apprehension of bias First Nation held election for chief and council, and appli- cant S, unsuccessful candidate for chief, brought two appeals. In first appeal, S alleged that successful chief W committed corrupt practice during elec- tion which affected result by contravening Custom Election Code and Rules in relation to handling of mail-in ballots by bringing voter who lived off re- serve four mail-in ballot pack- ages. In second appeal, S alleged CASELAW Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. 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