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Page 14 December 2, 2013 Law Times • 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. FEDERAL COURT OF APPEAL Taxation INCOME TAX Revocation of registration would cause irreparable harm to school Applicant was registered charity. Applicant operated school. CRA determined applicant failed to comply with requirements incumbent on registered charity. Minister proposed to revoke registration of applicant as charity. Applicant sought order prohibiting Minister from giving effect to proposal by publishing copy of notice in Canada Gazette. Applicant argued that without orderly liquidation of assets and ability to collect tuition fees and to issue donation receipts for religious instruction component of curriculum, school might be left without sufficient funds to operate resulting in closure or in serious disruption of activities affecting students and staff of school. Applicant was allowed. Period during which Minister was precluded from publishing copy of notice was extended on one-time basis to specified date. Order allowed applicant to pursue operations of school without major disruptions for fall semester. During period applicant was expected to proceed with orderly liquidation of large part of assets in kind and was expected to develop alternative plan to continue operations of school after specified date without status of registered charity. Applicant was to notify parents forthwith. Minister accepted there was serious issue to be determined resulting from applicant's notice of objection. Applicant showed that revocation of registration would cause irreparable harm. Balance of convenience required that orderly solution be crafted that took into account both interests of students and general public interest in integrity of charitable sector. Chabad v. Minister of National Revenue (Aug. 23, 2013, F.C.A., Robert M. Mainville J.A., File No. A-276-13) 231 A.C.W.S. (3d) 1110. ONTARIO CRIMINAL DECISIONS Appeal GROUNDS Trial judge effectively stopped accused from mounting defence Appeal by accused from his convictions for assault, mischief under $5,000 and uttering threats. When trial commenced on April 19, 2011 accused's request for ad- journment to retain counsel was denied. On first day of trial accused was unrepresented but on second day, which occurred on May 31, 2011 he had benefit of counsel. On appeal accused applied for leave to introduce fresh evidence. Appeal allowed. Fresh evidence, which consisted of prior inconsistent statements, was not admitted because it could have been adduced at trial if accused exercised due diligence; evidence was not decisively relevant to trial; it was not reasonably capable of belief; and evidence could not have reasonably affected result. Trial judge did not err in not granting adjournment for accused was represented for remainder of trial and any deficiencies in first day of trial were cured when accused's counsel appeared at continuation of trial. However, judge prevented accused, when he was unrepresented, from mounting what could have been meritorious attack on complainant's credibility. While some intervention and assistance was obviously appropriate in case of unrepresented accused, judge went far beyond bounds of propriety and he effectively stopped accused from mounting defence. On this ground of appeal, in which judge impaired accused's ability to present his case, convictions were set aside and new trial was ordered. Appeal was also allowed and new trial was ordered because judge failed to address major inconsistencies in witnesses' evidence. Judge did not meet his duty to assess whole of evidence and this made it incumbent on appellate court to intervene. R. v. McQuillan (Aug. 26, 2013, Ont. S.C.J., J.E. Ferguson J., File No. Cobourg 915/11) 109 W.C.B. (2d) 255. Assault ASSAULT CAUSING BODILY HARM No realistic suggestion that complainant consented to being slapped or stabbed Accused charged with assault causing bodily harm, uttering death threat, aggravated assault by wounding, forcible confinement, possession of cocaine for purposes of trafficking, simple possession of cocaine, and possession of proceeds of crime. Main issue was whether force was applied by complainant intentionally, due to anger and animosity over unpaid debt, or whether use of force was part of consensual play-fighting or was accidental. There was dispute as to whether complainant was ever confined on night in question or was ever threatened with death. Complainant and accused were casual friends who had number of other common friends who These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. would all party together on occasion. Complainant owed accused small $200 debt which he admittedly had not repaid in full. Accused and complainant were all at mutual friend's flat when acts of violence and threatening and confinement alleged were all said to have occurred. Later following morning, complainant returned home and his parents called police and ambulance and he was treated at hospital for various injuries. Complainant testified that he did not want to go, but did not want scene made in front of his father, so he went with accused but not before telling his father to call police if he did not come home by dark. Complainant's father and his then girlfriend testified to background circumstances. Accused guilty of assault causing bodily harm and aggravated assault by wounding. Complainant's injuries conformed perfectly to his version of events. Accused admitted backhand slap to face early in evening and he admitted it could have caused cut to inside of complainant's lip. Accused admitted poking knife at complainant, and puncturing his skin, once in hand and once in thigh. Admitted acts constituted all essential elements of two separate counts of assault causing bodily harm. There could be no realistic suggestion that complainant consented to being slapped in face or to being stabbed with knife, as these acts were sudden and unannounced, they caused bodily harm and complainant was admittedly upset when he was stabbed. Accused's self-induced intoxication was not available as defence. Court satisfied that complainant was credible witness and that assaults happened in manner that he described and his evidence was corroborated by several witnesses. Accused was found to be not credible and his version of events lacked sense. Court satisfied that half-inch long cut to complainant's left thigh, which bled and caused him to limp and which required two stitches to close it at hospital, met definitions of "wounding". R. v. Khalili-Arabi (Sep. 19, 2013, Ont. S.C.J., M.A. Code J., File No. 13-50000051-0000) 109 W.C.B. (2d) 257. Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Crown conceded breach by failure to bring accused in front of justice of peace within 24 hours Accused charged with six counts of robbery, applied for stay of proceedings or exclusion of evidence. Arresting officer testified that when he ordered arrest of accused for robbery evening before, he believed, based on information he www.lawtimesnews.com had, that he had reasonable and probable grounds for arrest. Robbery was sixth in series of similar robberies that had occurred over prior month in immediate vicinity of residence where accused was arrested; robberies involved anywhere from three to six suspects aged 18 to 20. Five of six males at residence (including three who left on bikes) matched generic description of robbers. Detective said that paramount fact for him was connection to phones used in robberies, including robbery that evening. Phones used in earlier robberies were registered to both residence where accused was found and to his home residence; phone used that night belonged to 12 year old who was at residence with accused. When police arrived at residence shortly after robbery, they observed three young males leave and one of them (accused's brother) had phone used in prior robbery in his possession. Robbers that evening were described as wearing black clothing, black baseball caps and bandanas over their faces. There was black clothing, black baseball caps and bandana on couch in living room of residence where accused was arrested. Accused alleged officers did not have reasonable grounds to arrest him and that their failure to have him before Justice of the Peace within 24 hours was further breach of his rights against arbitrary detention. Application dismissed with exception of exclusion of accused's final statement. Reasonable person, when considering all of information that detective had that evening about both earlier robberies and one that had occurred earlier that evening, would easily conclude, that there were reasonable and probable grounds for arresting accused for robbery that occurred earlier that evening. Crown conceded breach by failure to bring accused in front of justice of peace within 24 hours of arrest but statements which court found voluntary were all made well before time when it became impossible to bring accused before justice within 24 hour period and only one statement was arguably outside this period, and that was last one which had been excluded on voluntariness grounds. Failure by police was due to fact they had scheduled execution of three search warrants on same morning accused should have been brought to justice of peace before robbery arrests occurred. R. v. Thompson (Sep. 19, 2013, Ont. S.C.J., L.A. Pattillo J., File No. 11-40000749-000) 109 W.C.B. (2d) 285. Drug Offences POSSESSION Accused removing drug-filled condom from body cavity Accused was inmate who appealed her conviction for possession of oxycodone while being incarcerated. Case was based on circumstantial evidence as accused was seated on toilet for more than two minutes, at which point she waved to other inmates, two of whom stood up and positioned themselves between accused and surveillance camera. Court officers immediately entered cell and found accused over toilet with her skirt and underwear down and broken green condom was in toilet and no bodily waste. Officer also found cylindrical cellophane package containing oxycodone pills in plain view by her foot. Appeal dismissed. Evidence was sufficient to convict as appearance of drug package was least significant item of circumstantial evidence. It was much more significant was that accused was seated on toilet for several minutes, without having excreted any bodily waste, and broken condom was found in that very toilet. Obvious answer to what accused was doing was removing drug-filled condom from body cavity. R. v. St. Denis (Oct. 1, 2013, Ont. S.C.J., T.A. Heeney R.S.J., File No. London 12-783) 109 W.C.B. (2d) 279. Evidence CONFESSIONS AND ADMISSIONS In impugned statements it was accused who drove most narrative Accused charged with first degree murder of her husband. Crown alleged that accused employed contract killer to kill her husband, either to profit from his demise or to gain her freedom to continue her relationship with another man. Deceased was beaten to death. Crown sought to establish that statements made by accused to investigating officers were voluntarily made. Defence asserted that, given fact that accused was considered only suspect at this time, she should have been cautioned and that reliance on officer notes in lieu of actual recording on occasion rendered Crown burden impossible to meet given inherent lack of reliability of such evidence. Accused had first contacted police, expressing her concern that her husband, who had gambling problem and health issues, was only supposed to have gone out on short errand in circumstances where strange man accused did not know had come by and were looking for husband. Husband's siblings were emphatic he did not have gambling problem and described accused as having extravagant tastes and owing lot of money, that accused would benefit from husband's pension and life insurance, and