Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | JANUARY 28, 2019 13 www.lawtimesnews.com Supreme Court of Canada Criminal Law CHARTER OF RIGHTS AND FREEDOMS Unreasonable search and seizUre [s. 8] Specialized cyber-crime unit should have been aware of unique and heightened privacy interests in computers Accused was subject to court or- der to stay away from home he co-owned with his common-law spouse, unless he had spouse's consent. Spouse revoked that consent in same phone call to accused's parole officer in which she alleged that accused had child pornography on family computer. Police officer visited home, where spouse signed con- sent form for seizure of computer located in shared space. Seizure was warrantless. Police retained computer for four months with- out searching it, then obtained search warrant and found child pornography on it. Accused suc- cessfully brought pre-trial appli- cation under Canadian Charter of Rights and Freedoms on ba- sis of violation of his s. 8 rights. Application judge excluded all evidence from computer under s. 24(2) of Charter. Accused was acquitted of charges of access- ing and possessing child por- nography. Crown successfully appealed and new trial was or- dered. Accused appealed. Ap- peal allowed, evidence excluded and acquittal restored. State conduct was serious. Police ser- vice's specialized cyber-crime unit should have been aware of unique and heightened pri- vacy interests in computers and should have known that third party could not waive another party's Charter rights. Because there were multiple serious Charter breaches throughout investigative process, police con- duct undermined public confi- dence in rule of law. R. v. Reeves (2018), 2018 Car- swellOnt 20930, 2018 Carswel- lOnt 20931, 2018 SCC 56, 2018 CSC 56, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 Carswel- lOnt 7617, 2017 ONCA 365, H.S. LaForme J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.). Federal Court of Appeal Environmental Law STATUTORY PROTECTION OF ENVIRONMENT approvals, licences and orders Canada failed to engage, dialogue meaning fully and grapple with real concerns of Indigenous applicants National Energy Board issued report concerning proposed expansion of Trans Mountain pipeline system. Board's report recommended that Governor in Council approve expansion. Governor in Council accepted Board's recommendation and issued Order in Council. Ap- plicants brought applications for judicial review of Board's report and Order in Council. Applications were consolidated. Applications allowed. Order in Council was quashed and mat- ter was remitted back to Gover- nor in Council for appropriate action, if it sees fit, to address f laws and, later, proper redeter- mination. Most of f laws assert- ed against Board's process and findings were without merit. However, Board made one criti- cal error. Board unjustifiably defined scope of Project under review not to include Project- related tanker traffic. Unjusti- fied exclusion of marine ship- ping from scope of Project led to successive, unacceptable de- ficiencies in Board's report and recommendations. As a result, Governor in Council could not rely on Board's report and rec- ommendations when assessing Project's environmental effects and the overall public interest. Secondly, Canada acted in good faith and selected appropriate consultation framework. How- ever, at last stage of consulta- tion process prior to decision of Governor in Council, stage called Phase III, Canada's ef- forts fell well short of mark set by Supreme Court of Canada. Canada failed in Phase III to engage, dialogue meaningfully and grapple with real concerns of Indigenous applicants so as to explore possible accommo- dation of those concerns. Duty to consult was not adequately discharged. Tsleil-Waututh Nation v. Canada (Attorney General) (2018), 2018 CarswellNat 4685, 2018 CarswellNat 4686, 2018 FCA 153, 2018 CAF 153, Eleanor R. Dawson J.A., Yves de Mon- tigny J.A., and Judith Woods J.A. (F.C.A.). Federal Court Judges and Courts CONTEMPT OF COURT natUre of offence Mens rea of failure to comply with compliance order could be inferred Minister of National Revenue obtained compliance order which required taxpayer and numbered company to provide certain records within 30 days after having been served with copy of order. Minister sought order requiring taxpayer and numbered company to show cause why they should not be held in contempt for their failure to comply with compliance or- der. First show cause hearing was adjourned because taxpayer and numbered company were not served with notice and taxpayer did not appear at next hearing. Minister applied for order find- ing taxpayer in contempt. Ap- plication granted. Taxpayer had not complied with request made to provide certain information and documents relating to his personal income tax file, includ- ing bank statements, credit card statements and insurance docu- ments. Taxpayer was personally served with compliance order, taxpayer was primary actor who was responsible for replying to and satisfying compliance or- der and mens rea of failure to comply with compliance order could be inferred from taxpay- er's failure to provide requested information and documents. Minister met test for finding that taxpayer was in contempt of order of Court. Canada (National Revenue) v. Gray (2018), 2018 CarswellNat 2802, 2018 CarswellNat 2803, 2018 FC 549, 2018 CF 549, E. Heneghan J. (F.C.). Tax GOODS AND SERVICES TAX rebates Not open to registrant to question legality of assessment as time limit for objecting had expired Registrant supplied digital music to servers on cable com- panies' premises in multiple provinces. Location of supply of digital music services was prov- inces where servers were locat- ed. Tax auditor determined that client's servers were located in Ontario and assessed registrant for failure to remit provincial portion of Harmonized Sales Tax (HST) as required for serv- ers located in Ontario. Regis- trant paid unremitted HST but was not repaid by client because its servers were in Alberta. Reg- istrant learned after expiration of objection limitation period that it had provided incorrect information regarding location of client's servers during audit. Minister of National Revenue decided not to recommend re- mission of HST pursuant to s. 23(2) of Financial Adminis- tration Act. Minister found that no factor in Remission Guide applied and concluded that re- mission could not be recom- mended based solely on honest error by registrant. Registrant brought application for judicial review. Application dismissed. Minister provided cogent rea- sons for decision and took into account all facts and circum- stances identified by registrant. It was not open to registrant to question legality of assessment as time limit for objecting had expired. Minister mischaracter- ized registrant's submission that Minister's failure to correct situ- ation led to result not intended by legislation. However, over- remittance was consequence of registrant's failure to provide correct information during au- dit, and not due to unintended effect of legislation. Registrant did not act with due dispatch to correct error. Decision fell with- in range of possible, acceptable outcomes. Pay Audio Services Lim- ited Partnership v. Canada (National Revenue) (2018), 2018 CarswellNat 2214, 2018 CarswellNat 2850, 2018 FC 494, 2018 CF 494, Roger R. Lafrenière J. (F.C.). 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. Case Law CASE LAW Legal News at Your Fingertips Sign up for Canadian Legal Newswire today for free and enjoy great content. Visit canadianlawyermag.com/ newswire-subscribe ntitled-1 1 2019-01-24 9:56 AM Containing contact information for more than 66,000 judges and legal professionals, more than 27,500 law offices, government departments, and law related offices, canadianlawlist.com attracts more than 325,000 page views a month and 110,000 unique visitors! Book your enhanced listing today! Contact Colleen Austin at 416.649.9327 or colleen.austin@tr.com www.canadianlawlist.com Enhance your presence on Canada's largest legal directory AVAILABLE ONLINE AND IN PRINT Untitled-2 1 2018-09-05 10:17 AM

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