Law Times

LAW TIMES 14 COVERING ONTARIO'S LEGAL SCENE | MARCH 11, 2019 www.lawtimesnews.com CASE LAW Supreme Court of Canada Criminal Law APPEALS AppeAl from conviction or AcquittAl Trial judge did not misapprehend evidence or draw inferences unavailable on evidence Six-year-old complainant went to park with 17-year-old accused young person. Complainant told mother that accused showed her his "wiener", asked her to touch it, and licked her vagina, but ac- cused denied these events. At trial, accused claimed that com- plainant had said sand pile she made looked like "wiener" and accused told her not to talk like that and broke pile up, which made complainant angry. Trial judge convicted accused of sex- ual interference and invitation to sexual touching. Judge did not believe accused's evidence that complainant had been angry be- cause explanation was made late and there was no collateral evi- dence that he knew she was angry. Judge did not believe accused's evidence that complainant made pile of sand because sand was too dry, and if she did dig to find wet sand, she would have been very dirty. Majority of Court of Ap- peal allowed accused's appeal and ordered new trial. Majority held that trial judge misapprehended evidence leading to unfair trial and miscarriage of justice. Crown appealed. Appeal allowed and convictions restored. As per rea- sons of dissenting judge, trial judge did not misapprehend evi- dence or draw inferences unavail- able on evidence, nor did he err in his credibility findings. R. v. C.J. (2019), 2019 Car- swellMan 131, 2019 Carswell- Man 132, 2019 SCC 8, 2019 CSC 8, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., and Brown J. (S.C.C.); reversed (2018), 2018 CarswellMan 224, 2018 MBCA 65, Holly C. Beard J.A., Marc M. Monnin J.A., and Jenni- fer A. Pfuetzner J.A. (Man. C.A.). SEXUAL OFFENCES, PUBLIC MORALS AND DISORDERLY CONDUCT voyeurism Whether recordings were for sexual purpose had to be decided on objective standard Accused was high school teacher who used camera pen to sur- reptitiously take videos of female students which focused on their chest and cleavage areas. Accused was charged with voyeurism con- trary to s. 162(1)(c) of Criminal Code. Trial judge found breach of accused's right under s. 8 of Canadian Charter of Rights and Freedoms, but admitted evidence of videos recorded on camera pen under s. 24(2). On Crown's appeal, it was held that trial judge erred in law in failing to find accused made recordings for sexual purpose, nevertheless, accused's acquittal was upheld on basis trial judge had also erred in finding that stu- dents were in circumstances that give rise to reasonable expectation of privacy. Crown appealed. Ap- peal allowed; conviction entered. Privacy issues under law should be interpreted regarding personal autonomy and sexual integrity. Main reason for voyeurism law was to protect individuals' privacy and sexual integrity, particularly from new threats posed by abuse of evolving technologies. Narrow reading of law would undermine legislation's intention that offence prohibited surreptitious obser- vation or visual recording that amounted to sexual exploitation or that represented most egre- gious breaches of privacy. When entire context was considered, there was doubt that students' cir- cumstances gave rise to reason- able expectation that they would not be recorded in manner they were. Privacy interests under law could only be infringed if they were recorded or observed in way that caused them to lose control over their image and infringed their sexual integrity. Decision of whether recordings were for sexual purpose had to be decided on objective standard and consid- ering all circumstances. Observa- tion or recording would be done for sexual purpose where subject of observation or recording was reasonably perceived as intended to cause sexual stimulation in ob- server. Students had reasonable expectation of privacy regarding how their bodies would be ob- served in classrooms and hall- ways of their school and accused took videos that went beyond ac- cess that students allowed in this setting, thus infringing their au- tonomy. Videos were sexual and for sexual purpose. R. v. Jarvis (2019), 2019 Car- swellOnt 1921, 2019 Carswel- lOnt 1922, 2019 SCC 10, 2019 CSC 10, 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 CarswellOnt 15528, 2017 ONCA 778, K. Feldman J.A., David Watt J.A., and Grant Huscroft J.A. (Ont. C.A.). Federal Court of Appeal Tax INCOME TAX tAx AvoidAnce Tax Court erred by misapprehending appellant's concession about tax benefit PW was sole shareholder in P Ltd. and as of 2004, owned 110 Class A common shares which had fair market value (FMV) of $2,337,500, adjusted cost base (ACB) of $110 and paid-up capi- tal (PUC) of $110. In 2006, PW and spouse implemented corpo- rate reorganization with end re- sult that PW owned 2337.5 Class E preferred shares of 124 Ltd. with FMV of $2,337,500, ACB of $750,000 and PUC of $595,264. Because PW used his lifetime capital gains exemption, no tax was paid on any of transactions. Minister of National Revenue issued notices of determination pursuant to ss. 245 and 152(1.11) of Income Tax Act regarding 2007 taxation year of PW and 2008 taxation year of 124 Ltd.. Minister applied general anti- avoidance rule (GAAR) con- tained in s. 245 of Act to reduce PUC of Class E preferred shares to $110. Taxpayers appealed determination to Tax Court of Canada which concluded that Minister had properly applied GAAR and dismissed appeal. Taxpayers appealed. Appeal al- lowed. Transactions increased PUC of Class E preferred shares however there was no evidence before Tax Court that there had been any distribution of 124 Ltd.'s retained earnings. Because tax-free distribution of retained earnings s. 84.1 was intended to prevent had not occurred s. 84.1 had not, to date, been misused or abused. Tax Court erred in law and in fact by misapprehending appellant's concession about tax benefit and Minister had erred in applying GAAR. As there was no misuse or abuse to justify ap- plication of GAAR, it followed that notices of determination should be vacated. 1245989 Alberta Ltd. v. Canada (Attorney General) (2018), 2018 CarswellNat 2778, 2018 FCA 114, M. Nadon J.A., Eleanor R. Dawson J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2017), 2017 Carswell- Nat 10238, 2017 CarswellNat 1034, 2017 TCC 51, 2017 CCI 51, K. Lyons J. (T.C.C. [General Procedure]). Federal Court Intellectual Property PATENTS Actions for infringement Prothonotary correctly considered counterclaim separately from statement of defence Plaintiff commenced action for patent infringement. In re- sponding to plaintiff 's claim, defendant asserted that its prod- uct did not infringe patent in dispute and that it was rightful owner of patent, having been assigned all rights of invention claimed in patent pursuant to series of agreements with in- ventors. On motion by plaintiff to strike portions of amended statement of defence and coun- terclaim, prothonotary found essential nature of action was patent dispute. Prothonotary found contractual issues raised in defence were advanced as shield against claim of patent infringement and were within Federal Court's jurisdiction. Prothonotary further found that essential nature of defen- dant's counterclaim was not patent infringement but rather contractual claim for declara- tion that defendant was owner of patent, which was beyond jurisdiction of Federal Court. Prothonotary refused to strike struck portions of amended defence and struck portions of counterclaim. Both parties ap- pealed. Appeals dismissed. De- fendant's plea of non-infringe- ment, including reference to the agreements as support for de- fence of non-infringement, was within jurisdiction of Federal 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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