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Law Times • OcTOber 1, 2018 Page 13 www.lawtimesnews.com Supreme Court of Canada Criminal Law JURY Charging jury Trial judge conf lated actus reus and mens rea of offence Accused parents were convicted of failing to provide necessaries of life to their young son, who died of meningitis. Majority of Court of Appeal dismissed parents' ap- peals. Dissenting judge would have allowed parents' appeals and ordered new trial. Dissenting judge found, among other things, that jury charge was confusing, misleading, and deficient in de- scribing key element of offence, and that trial judge did not prop- erly instruct jury on fault element or mens rea of offence. Parents appealed. Appeal allowed. Con- viction was quashed and new trial was ordered.. Reasons of dissent- ing judge of Court of Appeal were essentially agreed with. In partic- ular, it was agreed that trial judge conf lated actus reus and mens rea of offence and did not sufficiently explain concept of marked depar- ture in way that jury could under- stand and apply it. R. v. Stephan (2018), 2018 Car- swellAlta 995, 2018 CarswellAlta 996, 2018 SCC 21, 2018 CSC 21, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., and Rowe J. (S.C.C.); reversed (2017), 2017 CarswellAlta 2403, 2017 ABCA 380, Jack Watson J.A., J.D. Bruce McDonald J.A., and Brian O'Ferrall J.A. (Alta. C.A.). Professions and Occupations BARRISTERS AND SOLICITORS Organization and regulation of profession Frequency of allegations was inf luenced by underdeveloped abuse of process jurisprudence In course of trial of lawyer G's cli- ent on securities charges, securi- ties commission (OSC) prosecu- tor, N, acknowledged he had ob- ligation to put all relevant mate- rials before trial judge. G repeat- edly accused N of not fulfilling obligation and put N on notice over and over that he was laying groundwork for later abuse of process motion. G ceased mak- ing allegations after trial judge eventually directed him to. De- cision settling abuse of process procedure was released. After trial, law society hearing panel (HP) found G guilty of profes- sional misconduct in breaching duty of civility and suspended him. Law society appeal panel (AP) considered professional misconduct allegations against G de novo based on record of HP proceedings, including G's testimony before HP, assumed G made allegations against pros- ecutors in good faith but that G's repeated attacks lacked rea- sonable basis, and upheld HP's finding. AP, Divisional Court and Court of Appeal considered and rejected contention that law society should only discipline lawyers for uncivil conduct in court in limited situations and found that law society's mandate did not conf lict with trial judge's trial management power or in- dependent authority of courts. Divisional Court and Court of Appeal found AP's decision reasonable. G appealed. Appeal allowed; complaints against G dismissed. AP's approach for assessing Gs' behavior in court- room was rational but its finding of professional misconduct was not reasonable in circumstances. Manner in which G made alle- gations against N was improper but AP accepted that G made al- legations in good faith. AP used G's sincerely held but mistaken legal beliefs as to disclosure and admissibility of documents to conclude that his allegations of prosecutorial misconduct lacked reasonable basis. G's al- legations were made in good faith and were reasonably based and could not reasonably sup- port finding of professional mis- conduct. It was not open to AP to conclude that G's allegations lacked reasonable basis because AP failed to account for evolv- ing abuse of process law, trial judge's reaction to G's behavior, and G's response to trial judge's instructions to stop. Frequency of G's allegations was inf luenced by underdeveloped abuse of process jurisprudence and trial judge's choice not to stop G from repeating allegations through- out first part of trial. Groia v. Law Society of Up- per Canada (2018), 2018 Car- swellOnt 8700, 2018 CarswellOnt 8701, 2018 SCC 27, 2018 CSC 27, McLachlin C.J.C., Abella J., Mol- daver J., Karakatsanis J., Wagner J., Gason J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellOnt 9453, 2016 ONCA 471, J.C. MacPherson J.A., E.A. Cronk J.A., and David Brown J.A. (Ont. C.A.). Federal Court Human Rights WHAT CONSTITUTES DISCRIMINATION Race, ancestry or place of origin Noting absence of discriminatory assumptions differed materially from basing decision on whether there was intention to discriminate Applicant was American-trained psychiatrist. Canadian Armed Forces required its psychiatrists to be accredited by Royal College of Physicians and Surgeons of Canada (RCPSC) whose accredi- tation was recognized across Canada. Applicant unsuccess- fully attempted to pass accredi- tation process. Applicant unsuc- cessfully brought human rights application challenging require- ment that its psychiatrists be ac- credited as specialists by RCPSC discriminated on grounds of "na- tional origin" contrary to section 7 of Canadian Human Rights Act and that requirement was not bona fide occupational require- ment. Applicant brought appli- cation for judicial review. Appli- cation dismissed. Tribunal was open to find that evidence did not establish that American-ed- ucated physicians were substan- tially of American origin such that applicant's American train- ing was proxy for national origin. Whether Canadian, American or other, Canadian Armed Forced required same qualification. Tri- bunal did not act unreasonable in concluding that there was no compelling evidence that appli- cant was treated differentially as result of his educational qualifi- cations from any other party as result of being American. Simply noting absence of "discrimina- tory assumptions" within hiring practice differed materially from basing decision on whether there was intention to discriminate. Keith v. Canada (Human Rights Commission) (2018), 2018 CarswellNat 3393, 2018 Car- swellNat 3721, 2018 FC 645, 2018 CF 645, Henry S. Brown J. (F.C.). Tax Court of Canada Tax GOODS AND SERVICES TAX Administration and enforcement Fair market value based on comparison method was justified Appellant purchaser purchased property from son-in-law (tax debtor) for $220,000. Tax debtor owed Minister of National Rev- enue $163,806.23 at time of pur- chase. Minister assessed purchas- er under s. 325 of Excise Tax Act on basis that purchaser had non arm's length relationship with tax debtor and that property was transferred for inadequate con- sideration as fair market value was $312,000. Purchaser appealed on ground that property's fair mar- ket value was $207,000. Appeal allowed, and matter referred back to Minister for reconsideration and reassessment on basis that fair market value was $271,000. Purchaser did not question pres- ence of transfer, consideration, non-arm's length relationship, or underlying tax liability. Evidence of Minister's expert was preferred over that of purchaser's expert. Minister's expert was justified in establishing fair market value at $312,000 based on comparison method, and given construction defects, contributory value of work to be done and administra- tive expenses, expert was justified in finding that fair market value was $271,000. Harvey c. La Reine (2018), 2018 CarswellNat 2129, 2018 CarswellNat 2130, 2018 TCC 67, 2018 CCI 67, Guy R. Smith J. (T.C.C. [Informal Procedure]). INCOME TAX Administration and enforcement Corporation failed to adduce sufficient evidence to establish special or exceptional circumstances Corporation brought motion re- garding representation in gener- al procedure matter and applica- tion for extension of time to ap- peal with respect to assessments made for 2014 and 2015 taxation years. Motion dismissed and application granted. Tax Court of Canada Act does not permit anyone other than lawyer to represent corporation in gen- eral procedure matter. 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