Law Times

Law Times • December 3, 2018 Page 17 www.lawtimesnews.com Supreme Court of Canada Criminal Law DISCLOSURE Third party disclosure [O'Connor] Accused failed to provide expert opinion on how maintenance records might be relevant to determining whether instrument was malfunctioning V and G were charged with im- paired driving and driving with excessive alcohol. Accused had provided breath samples which were analyzed using approved instrument. Crown refused to disclose maintenance records for breathalyzers on basis that these were third party records and that they did not meet re- quired threshold of relevance. V's application for disclosure was dismissed at trial and he was later convicted. G's appli- cation for stay of proceedings under s. 7 of Canadian Charter of Rights and Freedoms was al- lowed. Summary conviction ap- peal judge hearing both appeals determined that maintenance records were first party records and ordered new trial for V and dismissed Crown's appeal of G's stay. Majority of Court of Ap- peal found that maintenance records were third party records, reinstated V's conviction and set aside G's stay. Accused appealed. Appeals dismissed. V's convic- tion was affirmed and G's mat- ter was remitted for new trial. Requested records were not part of first party disclosure. Records were not in possession or con- trol of prosecuting Crown, they did not form part of "fruits of investigation" and evidence was that maintenance records were not "obviously relevant" to cases of accused. Neither accused at- tempted to provide expert opin- ion on how maintenance records might be relevant to key material issue of determining whether in- strument was malfunctioning or operated improperly. In absence of any such evidence, expert evi- dence of Crown was persuasive that records were not relevant. R. v. Gubbins (2018), 2018 CarswellAlta 2404, 2018 Car- swellAlta 2405, 2018 SCC 44, 2018 CSC 44, Wagner C.J.C., Abella J., Moldaver J., Karakat- sanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2016), 2016 Carswel- lAlta 2195, 2016 ABCA 358, Ronald Berger J.A., Frans Slatter J.A., and Patricia Rowbotham J.A. (Alta. C.A.). OFFENCES AGAINST RIGHTS OF PROPERTY Robbery Pieces of circumstantial evidence excluded any reasonable alternative to accused's guilt Accused was convicted of rob- bery of financial institution. Eyewitnesses and surveillance video indicated that robber was young man who wore sunglass- es, gloves, bandana, and hat. Identity of robber and evidence against accused was circumstan- tial. Trial judge found DNA on pocket knife left in area of bank accessed only by bank employ- ees and robber, and his DNA on t-shirt found in getaway car was fatal to defence. Accused was un- successful on his appeal as pieces of circumstantial evidence ex- cluded any reasonable alterna- tive to accused's guilt. Accused appealed. Appeal dismissed. Based on principles in Villaro- man, it was not unreasonable for trial judge to conclude that evidence as whole excluded all reasonable alternatives to guilt, especially given presence of ac- cused's DNA on two different pieces of evidence and both con- nected to robbery. Trial judge had not ignored other potential explanations. R. v. Youssef (2018), 2018 CarswellOnt 18964, 2018 Car- swellOnt 18965, 2018 SCC 49, 2018 CSC 49, Moldaver J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellOnt 227, 2018 ONCA 16, John Laskin J.A., K. Feldman J.A., and R.A. Blair J.A. (Ont. C.A.). Securities CONSTITUTIONAL ISSUES Division of powers Constitution of Canada authorized implementation of pan- Canadian securities regulation under authority of single regulator Federal government and provin- cial governments proposed na- tional cooperative capital mar- kets regulatory system. System was designed to accord with the constitutional division of pow- ers. Government of Quebec re- ferred two questions pertaining to that system to Quebec Court of Appeal. First question was whether Constitution of Canada authorized implementation of pan-Canadian securities regu- lation under authority of single regulator. Second question was whether proposed federal act as drafted, exceeded authority of Parliament of Canada. Majority of Quebec Court of Appeal con- cluded that proposed system was unconstitutional. It held that process for amending model provincial act effectively fettered sovereignty of provinces' legisla- tures. It further held that process for making federal regulations was inconsistent with principle of federalism. Furthermore, it held that several provisions of federal act pertaining to making of federal regulation were likely to render entire Act unconsti- tutional. Attorney General of Canada, Attorney General of British Columbia and Attorney General of Quebec appealed. Appeals brought by Attorney General of Canada and Attor- ney General of British Colum- bia allowed; appeal brought by Attorney General of Quebec dismissed. First, proposed sys- tem did not improperly fetter legislatures' sovereignty, nor did it entail impermissible del- egation of law-making author- ity. Second, subject matter of federal act, as drafted, fell within general branch of Parliament's trade and commerce power. Moreover, manner in which fed- eral act delegated power to make regulations accorded with Par- liament's constitutional powers. Therefore, impugned provisions of federal act had no impact on its constitutionality. Reference re Pan-Canadian Securities Regulation (2018), 2018 CarswellQue 9836, 2018 CarswellQue 9837, 2018 SCC 48, 2018 CSC 48, Wagner C.J.C., Abella J., Moldaver J., Kara- katsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellQue 3488, 2017 Car- swellQue 4199, 2017 QCCA 756, Bouchard J.C.A., Duval Hesler Juge en chef du Québec, Schrag- er J.C.A., Savard J.C.A., and Mainville J.C.A. (C.A. Que.). Federal Court of Appeal Immigration and Citizenship APPEALS TO FEDERAL COURT OF APPEAL AND SUPREME COURT OF CANADA Certification of questions by Federal Court Trial Division Question could only be certified only if it was decisive as to outcome of appeal Applicant was refused entry to Canada for organized criminal- ity but decision was remitted after judicial review. Immigra- tion officer refused admission again. Applicant was president and general manager of com- panies which had majority pri- vate share of company S. Of- ficer found that applicant was guilty of fraud on company S and Congolese government and had enriched himself at expense of S. Applicant unsuccessfully brought application for judicial review. Applicant appealed. Ap- peal dismissed. Question should not have been certified because judges did not deal with it in their reasons. Question could only be certified only if it was decisive as to outcome of appeal and transcended interests of par- ties to dispute, so that it was gen- eral scope. As result, issue must at least have been raised and considered by trial judge' it is not disputed that Question certified by judge was not debated before them and, consequently, was not subject of thorough analysis in its reasons. Nguesso c. Canada (Citoy- enneté et Immigration) (2018), 2018 CarswellNat 4050, 2018 CAF 145, J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2016), 2016 Carswell- Nat 10237, 2016 CarswellNat 6532, 2016 FC 1295, 2016 CF 1295, Jocelyne Gagné J. (F.C.). Tax INCOME TAX Administration and enforcement Not all four factors for extension of time would need to be satisfied in order for taxpayer to be successful Minister of National Revenue reassessed taxpayer company and denied them SR&ED ex- penditures and related invest- 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. To subscribe, please access carswell.com or call 1-800-387-5164. 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