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LAW TIMES 14 COVERING ONTARIO'S LEGAL SCENE | APRIL 8, 2019 www.lawtimesnews.com CASE LAW Supreme Court of Canada Criminal Law APPEALS AppeAl from conviction or AcquittAl Open to court on appeal to consider accused's silence in rejecting his unreasonable verdict argument Accused was convicted by jury of intentionally discharging firearm while reckless as to life or safety of another person and occupying motor vehicle while knowing there was firearm in vehicle. Accused appealed his convictions on ground that they were unreasonable. Major- ity of Ontario Court of Appeal dismissed appeal. Accused ap- pealed. Appeal dismissed. Cir- cumstantial evidence presented against accused established strong case to answer. It was open to court on appeal to con- sider accused's silence in assess- ing and ultimately rejecting his unreasonable verdict argument. Trial judge made it clear to jury, on numerous occasions, that it could not consider accused's failure to testify as makeweight for Crown's case. In this regard, certain paragraphs of reasons of majority of Ontario Court of Appeal were not endorsed, to ex- tent they could be taken as sug- gesting otherwise. R. v. George-Nurse (2019), 2019 CarswellOnt 2296, 2019 CarswellOnt 2297, 2019 SCC 12, 2019 CSC 12, Abella J., Mol- daver J., Karakatsanis J., Côté J., and Rowe J. (S.C.C.); affirmed (2018), 2018 CarswellOnt 8833, 2018 ONCA 515, J.C. MacPher- son J.A., C.W. Hourigan J.A., and B.W. Miller J.A. (Ont. C.A.). CHARTER OF RIGHTS AND FREEDOMS presumption of innocence [s. 11(d)] Presumption of belief in representation was contrary to principle of presumption of innocence Accused posted online adver- tisement, seeking underage girl to communicate with. Under- cover police officer posed as 14-year-old girl, and answered ad. Accused asked whom he believed to be girl to touch her- self sexually, and proposed that they meet to have sex. Accused was charged with child luring as result of communications. At trial, accused challenged constitutionality of applicable Criminal Code provisions. Ac- cused claimed his presump- tion of innocence was violated under ss. 7 and 11(d) of Charter of Rights and Freedoms. Trial judge found Charter violation, but convicted accused on ba- sis that he had not taken steps to ascertain girl's age. Accused was sentenced to four months imprisonment and one year pro- bation. Sentencing judge found that mandatory minimum sen- tence was disproportionate un- der s. 12 of Charter. Provincial court of appeal upheld findings of trial and sentencing judges. Crown appealed on findings related to Charter violations. Accused cross-appealed, claim- ing he was convicted on basis of objective fault violating his fun- damental justice rights under Charter. Appeal allowed in part; cross-appeal allowed in part. Conviction set aside and new trial ordered. Applicable law in- fringed accused's presumption of innocence rights under Char- ter. Violation was not saved by s. 1 of Charter. Fact that officer represented girl's age to accused, did not mean that accused be- lieved representation. Presump- tion of belief in representation was contrary to principle of pre- sumption of innocence. In fu- ture, Crown would have to prove that accused in similar situation believed representation beyond reasonable doubt. Proper rem- edy was new trial, as opposed to acquittal being entered. R. v. Morrison (2019), 2019 CarswellOnt 3710, 2019 Car- swellOnt 3711, 2019 SCC 15, 2019 CSC 15, 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.); reversed (2017), 2017 Carswel- lOnt 10363, 2017 ONCA 582, David Watt J.A., K. van Rens- burg J.A., and G. Pardu J.A. (Ont. C.A.). Federal Court of Appeal Public Law SOCIAL PROGRAMS employment insurAnce Tribunal not violating rules of procedural fairness by failing to review documents not filed Canada Employment Insur- ance Commission told applicant recipient that pension income received from his trade union would be deducted from his sickness benefits. General Divi- sion of Social Security Tribunal concluded that pension from union constituted earnings to be deducted from sickness ben- efits pursuant to ss. 35 and 36 of Employment Insurance Regula- tions. General Division conclud- ed that retirement pension arose out of his employment on basis that recipient had no control over contributions made to plan on his behalf and they were tied to his hours of work. General Division determined that Com- mission did not violate rules of procedural fairness or natural justice by failing to review col- lective agreement or pension plan, as recipient did not file those documents. Appeal Divi- sion of Social Security Tribunal dismissed recipient's appeal. Re- cipient brought application for judicial review. Application dis- missed. Appeal Division made no reviewable error in conclud- ing that General Division did not fail to observe principle of natural justice, as recipient chose not to file pension plan and col- lective agreement before Com- mission and General Division. Appeal Division did not err in its interpretation and application of ss. 35 and 36 of Regulations. Wilson v. Canada (Attorney General) (2019), 2019 Carswell- Nat 743, 2019 FCA 49, Yves de Montigny J.A., Judith Woods J.A., and J.B. Laskin J.A. (F.C.A.). Federal Court Tax INCOME TAX AdministrAtion And enforcement CRA employee did not err in making findings of fact about taxpayer's history of compliance As result of tax appeal, conse- quential reassessment was is- sued for taxpayer's 2002 taxa- tion year. Taxpayer filed no- tices of objection out of time but Canada Revenue Agency (CRA) eventually partially al- lowed objection for 2002 taxa- tion year. CRA partially granted taxpayer's request for waiver of interest pursuant to s. 220(3.1) of Income Tax Act and cancelled arrears for 2002 taxation year for two years but declined relief for additional eight years and for 2003 taxation year. On taxpay- er's request for reconsideration, CRA granted relief from arrears for three years due to actions of CRA for 2002 and 2003 taxation years but declined additional relief. Taxpayer brought applica- tion for judicial review of deci- sion denying additional relief. Application dismissed. CRA employee did not err in making findings of fact about taxpayer's history of compliance with Act, as he was late in filing his tax re- turns for two years, which was within taxpayer's control. CRA employee did not make unrea- sonable findings of fact that de- lay was not caused by CRA in re- sponding to taxpayer's requests. CRA employee gave reasons for her recommendation that no further relief be granted and her factual findings were supported by evidence and were reason- able. There was no basis for judi- cial intervention. Jewett v. Canada (Attor- ney General) (2019), 2019 Car- swellNat 376, 2019 FC 200, E. Heneghan J. (F.C.). Minister fettered her discretion by undue reliance on T2 Statute-barred Credits Guide Taxpayer, which was commer- cial and residential painting business, did not file corpo- rate income tax returns for two taxation years. Canada Revenue Agency (CRA) issued notional assessments for those taxation years, including penalties, and proceeded to collect balance ow- ing by way of garnishment. After garnishments, taxpayer hired accountant to file outstanding T2 tax and taxpayer reported net income which resulted in net tax owing being less than garnished amounts, difference which rep- resented statute-barred credit (SBC). Taxpayer made two re- quests to Minister to re-appro- priate SBC to their outstanding payroll balance, but Minister de- nied requests, because amount was not compliant and taxpayer did not resolve non-compliance within reasonable time. Taxpay- er brought application for judi- cial review of Minister's decision to deny taxpayer statute-barred credits. Application dismissed. It was found that decision of Min- ister's delegate was not reason- able. When assessing request for re-apportionment of SBC, Min- ister should also have regard to whether denial of request might possibly result in Minister's in- ability to collect outstanding tax arrears from taxpayer. Taxpayer had filed affidavits that stated that Minister's continued denial of taxpayer's request to apply existing tax credits to current arrears caused significant finan- cial hardship. Accordingly, Min- ister's decision was unreason- able because it was not apparent or transparent that taxpayer's financial hardship was factor in decision-making process. Min- ister fettered her discretion by undue reliance on T2 Statute- barred Credits Guide, because she did not review or weigh as factor financial hardship raised by taxpayer. Matter was re- turned for redetermination by different delegate of Minister and taxpayer was awarded costs in amount of $1,000. Forbes Painting and Deco- rating Ltd. v. Canada (Attorney General) (2019), 2019 Carswell- Nat 265, 2019 CarswellNat 760, 2019 FC 160, 2019 CF 160, Keith M. Boswell J. (F.C.). Taxpayer was complicit in or wilfully disregarded fraud so circumstances were not beyond her control Taxpayer used tax preparation firm FA to prepare personal in- come tax return and claimed net business loss of $522,977. Canada Revenue Agency (CRA) issued assessment denying claimed business losses and as- sessing gross negligence penalty of $97,280. Taxpayer became aware of fraud perpetrated by FA. CRA denied taxpayer's ini- tial request for taxpayer relief because taxpayer did not sub- mit financial documentation for hardship and there were no extraordinary circumstances. Taxpayer brought application for judicial review of decision of Minister of National Rev- enue refusing to exercise dis- cretion pursuant to s. 220(3.1) of Income Tax Act to cancel or waive gross negligence penalty on second-level request. Appli- cation dismissed. Minister did not fetter her discretion or un- reasonably rely on unfounded facts or irrelevant factors. It was reasonable for Minister to deny request for relief. It defied logic that taxpayer was not aware of fake claim for business loss in relation to non-existent busi- ness. Fraud was perpetrated by FA but taxpayer was complicit in or wilfully disregarded fraud so circumstances were not beyond her control. Decision engaged with evidence of FA's fraud and taxpayer's complicity or wilful disregard of fraud. No evidence was filed to support finding of financial hardship. Mior v. Canada (Attorney General) (2019), 2019 Carswell- Nat 728, 2019 FC 322, Michael D. Manson J. (F.C.). Tax Court of Canada Tax INCOME TAX AdministrAtion And enforcement Language of Income Tax Act not allowing for family law or household expenses exception Taxpayer had spouse's employ- ment paycheques electronically transferred to her bank account. Taxpayer's spouse owed Minis- ter outstanding debt, and it was during period of outstanding debt that spouse's paycheques were transferred to taxpayer's account. Minister assessed tax- payer as having liability due to paycheque transfers, as it was 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

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