Law Times

www.lawtimesnews.com Law Times / march 17/24, 2008 Page 19 Norwegian. Applicant near retirement. Judge concluded insufficient evidence that appli- cant intended to make Canada primary residence. Appeal from judge's decision allowed. Judge will not be overruled on appeal as long as he or she properly follows one of the three schools of thought. Minister agreed applicant established herself in Canada. Open to citizenship judge to use "centralized mode of living" test. Judge misdirected herself by focusing on future intentions. Reference to timing of application was speculation that applicant might lose resident status in future. Administrative discretionary decision that can be set aside for being based on irrelevant considerations. Salaff v. Canada (Minister of Citizenship and Immigration) (Dec. 14, 2007, F.C., Harrington J., File No. T-888-07) Order No. 008/009/102 (7 pp.). TAX COURT OF CANADA Taxation INCOME TAX Appeals from assessments under Excise Tax Act (Can.) and Income Tax Act (Can.) were allowed Appellant was assessed pursu- ant to s. 323 of Excise Tax Act (Can.), for period July 1, 1999 to September 30, 2000 in respect of goods and ser- vices tax remittable by U. cor- poration. Appellant was also assessed pursuant to s. 227(10) and s. 227.1 of Income Tax Act (Can.), for 2002 taxation year for unremitted source deduc- tions, penalties and interest also relating to U.. Both Excise Tax Act and Income Tax Act pro- vide for liability of directors where company failed to remit tax. Issue whether appellant was director of company during rel- evant periods. Appellant had left school in grade 11 and since that time had worked as brick- layer. Appellant and his brother entered into business relation- ship with M., who held himself out to be experienced masonry business person with contacts with accountants and lawyers. Company U. was subsequently incorporated and it was agreed that M. would handle admin- istrative matters. Appellant was not involved in management of business. Appellant received no compensation over and above union wages. Appellant signed cheques brought to job site by M.. When appellant and brother discovered that M. had not made required remittances to government they stopped further business activities with company. Appeals allowed. Personal education, experience and sophistication of appellant must be considered. From outset appellant was never involved in daily management and adminis- tration of company. Role limit- ed to actual bricklaying signing cheques that accountant deliv- ered to worksite. Appellant had no reason to suspect cheques not reaching destinations. Once he became aware of problem he took immediate and appropri- ate steps to deal with problems. Even if court had concluded that appellant was director of company he had met standard of care referenced in s. 227.1(3) of Income Tax Act and s. 232(3) of Excise Tax Act and would not be held liable for amounts pay- able by company. Pereira v. Canada (Dec. 6, 2007, T.C.C., Campbell J.T.C.C., File No. 2005-4485 (GST)G) Order No. 008/010/295 (10 pp.). ONTARIO CRIMINAL CASES Breach Of Trust By Public Official GENERAL Federal government employee convicted of breach of trust and accepting benefit Trial of the accused on two counts of breach of trust by a public officer and one count of accepting a benefit. Accused was employed by the federal government as an industrial technology adviser with the National Research Council of Canada. Advisers assisted with and recommended applications for technology funding. They assisted companies with fund- ing proposals and certified that the work for which funding was obtained was properly done. Crown alleged that the accused received a portion of consulting fees charged to his clients by pri- vate consultants who assisted the clients in applying for technol- ogy funding which the accused could recommend they receive. Accused was convicted of one count of accepting a benefit and one count of breach of trust. Regarding acceptance of the ben- efit payments which violated s. 121(1)(c) of the Criminal Code, payments were made by enti- ties, that had dealings with the government, to companies that were controlled by the accused or his wife. Payments in ques- tion were $7,000 US that was paid to the accused's company and $16,050 that was paid to the wife's company. Regarding the payment that was made to the wife the Crown did not have to prove that the accused himself received the benefit. Offence was committed when family mem- bers of officials received benefits from persons who had dealings with the government whether or not the benefits were passed on to the officials themselves. Accused knew that the benefit was being paid to a company that his wife owned. Regarding the two counts of breach of trust, which violated s. 122 of the Code, the accused was an official who was in a position of public trust. He clearly acted to benefit his wife and her com- pany by engaging in a scheme that resulted in consulting fees for the wife's company. Breach of trust charge in relation to the $7,000 US payment that was made to the accused's com- pany was proven. Payment was made for other than the public good. Second charge regarding payments of $38,145 that were made to the accused's company and other payments that were made to the wife's company was dismissed. Payments were not proven to be a monetary benefit for the accused. R. v. Mathur (Nov. 7, 2007, Ont. S.C.J., Marrocco J., File No. P745/06) Order No. 007/318/091 (38 pp.). Courts ABUSE OF PROCESS Finding of abuse of process was premature without witnesses testifying at trial Applicant brought motion to have charges stayed due to abuse of process. Offences were alleged to have occurred in 1981. Applicant was arrested in 1981 for attempted murder. Applicant provided an alibi and was released. In 1998, appli- cant was again arrested for mur- der of another female and then charged with 1981 attempted murder. Defence alleged charg- ing applicant with 1981 offence constituted abuse of process as many original police records were destroyed and many wit- nesses had no memory of events. Finding of Charter abuse of process was premature with- out witnesses testifying at trial. Application was dismissed. R. v. Badgerow (Jan. 11, 2008, Ont. S.C.J., Gordon J., File No. 03-139) Order No. 008/017/060 (25 pp.). Customs And Excise Offences GENERAL Accused failed to remit $4.7 million to Customs Accused was alleged to have received 4.7 million dollars from various clients which he failed to remit to customs. Accused was charged with 16 counts of fraud and attempted fraud under s. 153 of Customs Act (Can.). Counts reflected some 463 separate transactions over three year period. Accused was found guilty of all counts. No other employees were respon- sible for documentation that led to fraudulent gains by accused. There was huge discrepancy between what customs reported him owing and what he received from clients. Crown had estab- lished beyond reasonable doubt accused had necessary mens rea in engineering and directing that duplicate filing scheme which resulted in 4.7 million being withheld from customs. R. v. Topp (Jan. 16, 2008, Ont. S.C.J., Baltman J., File No. CRIM J(F) 173/05) Order No. 008/022/088 (26 pp.). Motor Vehicles IMPAIRED DRIVING AND "OVER 80" No erorr in dismissal of appeal from conviction for impaired driving Accused appealed dismissal of appeal from conviction for impaired driving. Investigating officer observed accused make two rolling stops and improp- er use of turn signals. When he stopped accused, he noted watery, red eyes, alcohol on his breath, some slurring of words and stumbling when getting out of his vehicle. Accused provided breath samples but there was no computer printout or read- ing and therefore it was offi- cer's "word" against accused's with respect to blood alcohol concentration. Expert testimony regarding accused's elimination rate was that accused had high tolerance for alcohol such that he would show no signs of impair- ment with concentration of 140 to 179 mg. Trial judge held there was no evidence investigating officer held any animus toward accused and accused's testimony was not internally consistent and did not have air of reality or ring of truth. Trial judge held breath demand was lawfully made. She found controlled testing per- formed by expert did not dupli- cate roadside circumstances and did not consider opinion as it related to accused's tolerance for alcohol. Summary conviction appeal court dismissed appeal. Trial judge clearly aware onus of proof was on Crown to prove accused's guilt. She did not place any onus on accused to estab- lish investigating officer had any animus towards him or motive to fabricate his evidence. She made simple finding of fact that there was no credible evidence officer held any animus and was entitled to make this finding. Accused argued trial judge erred in relying on investigating offi- cer's testimony regarding events not recorded in his memo book. Trial judge entitled to consider all of evidence and make find- ings of fact. Trial judge had discretion not to draw adverse inference from Crown's failure to introduce dispatch tape as well as call other witnesses in face of defence attempt to attack investigating officer's testimony. In declining to draw adverse inference, trial judge did not shift burden of proof. Trial judge did not find that expert opinion had no value. She was enti- tled to conclude that accused's condition at time of arrest was different than condition after completing tests in controlled environment. Appeal dismissed. No error by summary convic- tion appeal judge. R. v. Hartung (Dec. 21, 2007, Ont. C.A., Doherty, Sharpe and Gillese JJ.A., File No. C46556) Appeal from 73 W.C.B. (2d) 557 dismissed. Summary derived from lower court sum- mary. Order No. 008/008/047 (1 p.). Obscenity CHILD PORNOGRAPHY Accused's control of material on computer not incidental to innocent purpose Accused appealed conviction for possession of child pornography. Child pornography was found on accused's computer. Prior to police finding material, accused told girlfriend to delete mate- rial so police could not find it. Accused told police that he knew child pornography was there but did not know how it got there. Trial judge found that accused had knowledge of mate- rial and control over it. Appeal dismissed. Control of material by accused was not incidental to innocent purpose. Accused did not possess material solely for purpose of destroying it. Accused's instruction to delete material was manifestation of his control over material. R. v. Chalk (Nov. 28, 2007, Ont. C.A., Dothery, Blair JJ.A. and Then R.S.J. (ad hoc), File No. C42872) Order No. 007/333/059 (7 pp.). Your 24/7 connection to copies of original decisions caseimage.ca is an online database of both unreported and reported court and tribunal decisions — www.caseimage.ca $12.50* per case Single or multiple copies of the full text of any case digested in this issue can be supplied at the rates shown. 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