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Law TiMes • March 21, 2011 FEDERAL COURT OF APPEAL Taxation INCOME TAX Correct test applied to differentiate between business income and income from property Appeal by taxpayer from judg- ment dismissing taxpayer's ap- peal from decision dismissing taxpayer's appeal from reassess- ment by Minister disallowing taxpayer's claim for capital cost allowance. Taxpayer purchase recreational vehicle ("RV") and leased it to movie industry through third party. Taxpayer filed income tax returns for 2003, 2004, and 2005 taxation years, and claimed substantial deduction for capital cost al- lowance. Minister disallowed deduction by applying limiting rule in s. 1100(15) of Income Tax Regulations (Can.). Tax Court of Canada concluded that taxpayer was not doing business using his RV. Appeal dismissed. Tax Court Judge applied correct test to differen- tiate between business income and income from property. Conclusion was not unreason- able. Oke v. Canada (Dec. 17, 2010, F.C.A., Sharlow, Pelletier and Layden-Stevenson JJ.A., File No. A-395-09) 196 A.C.W.S. (3d) 1198 (14 pp.). ONTARIO CRIMINAL CASES Appeal GENERAL Not for judges to second-guess decision to prosecute particular allegation Crown appealed decision of appeal judge to issue stay of proceedings. Crown argued appeal judge wrongly refused to order new trial and stayed proceedings on basis that al- legations were trivial and not worthy of prosecution. Ap- peal dismissed. It was not for judges to second-guess deci- sion to prosecute particular allegation. In circumstances, focus of inquiry was on impact of new trial on accused at this point in proceedings. Accused had been before court on four occasions at personal expense and inconvenience. Allega- tion against accused was mi- nor both in its nature and in respect of particulars. Crown made its legal point through this endorsement which made it clear that judges could not interfere with Crown's exer- cise of its discretion to initiate prosecutions. New trial at this stage would not serve any use- ful purpose and would cause further inconvenience and ex- pense to accused. Accused had done nothing to contribute to prolonged litigation of minor allegation and was victim of self-initiated judicial errors. R. v. Maieron (Jan. 27, 2011, Ont. C.A., Doherty, Laskin and Gillese JJ.A., File No. C52419) 92 W.C.B. (2d) 219 (3 pp.). Charter Of Rights FREEDOM OF EXPRESSION Privacy interests best addressed through limited editing of exhibits Media organizations apply- ing for access to exhibits filed at trial for murder of accused's two young children. Exhibits including videotape of children in life, financial information of accused's family. Application allowed. Media access to ex- hibits presumed due to value of court openness. Access to, publication of exhibits poses no serious risk to administra- tion of justice. Privacy interests best addressed through limited editing of exhibits. Canadian Charter of Rights and Free- doms, s. 2(b). R. v. Campione (Dec. 13, 2010, Ont. S.C.J., Stong J., File No. CR-08-067) 92 W.C.B. (2d) 324 (11 pp.). TRIAL WITHIN REASONABLE TIME Accused prejudiced by delay Application by accused, who was charged with impaired driving and with driving with blood alcohol level over legal limit, for stay of proceedings because he was not tried within reasonable period of time, con- trary to s. 11(b) of Canadian Charter of Rights and Free- doms. Accused was charged on September 27, 2009. Trial was scheduled to commence on August 10, 2010. It did com- mence on that date but it was not completed. Trial was ad- journed to January 15, 2011. Application allowed. Length of delay was 15 months and 23 days. Case was straightfor- ward and it did not have any unusual aspects. Accused did not waive any delay and he did not contribute to delay that oc- curred. Crown was responsible for five months and nine days of delay that occurred since Au- gust 10. Trial could have been completed on that day but it was not because of argument over Crown's failure to file its response to accused's Charter materials and because trial did not proceed beyond 4 p.m.. Total amount of institutional delay was 14 months. Accused was prejudiced by delay. He was student who worked part- time and additional $3,000 in legal fees that he had to pay because of delay constituted significant amount of preju- dice. Accused also was preju- diced because his parents had serious medical conditions and stress he suffered from delay was heightened by his concern over his parents' worry about his situation and how it could affect their frail health. This was not function of normal stress of being charged that all accused experienced. Section 11(b) violation occurred and charges were stayed. CASELAW R. v. Agro (Jan. 18, 2011, Ont. C.J., Brown J., File No. 09- 4004) 92 W.C.B. (2d) 243 (10 pp.). Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Presumption in s. 258(1)(a) of Criminal Code not rebutted Appeal by accused from his conviction of having care and control of vehicle while his blood alcohol level was above legal limit. Accused attended at building security office to pick up his keys when he ex- hibited obvious signs of im- pairment. Security officer re- fused to give him his keys and he offered to arrange taxi to take him home. Accused told officer that he had started his car with remote starter and he asked for his keys to turn it off. Officer assumed that accused was going to use taxi. Accused lied because he did not have remote starter. Subsequently, security was informed that there was vehicle in parking lot with engine running and someone was in driver's seat. Two workers went to lot and attempted to wake up accused, who was occupant, but they were unable to do so. Police were summoned and officer woke up accused, saw that he was impaired and arrested him for impaired care and con- trol. His breathalyzer readings were 104 and 95. Appeal dis- missed. There was sufficient evidence for trial judge to rea- sonably conclude that accused did not have firm or detailed plan that he was determined to pursue that did not entail asserted care and control over vehicle while impaired. Judge did not misapprehend essential evidence. There was adequate basis in evidence to conclude that presumption contained in s. 258(1)(a) of Criminal Code was not rebutted and that ac- cused had care and control of vehicle at relevant time. R. v. Usher (Jan. 17, 2011, Ont. S.C.J., James J., File No. 08-9836-AP) 92 W.C.B. (2d) 220 (8 pp.). Release From Custody REVIEW OF ORDER OF JUSTICE Accused to continue to be detained Application by accused to re- view detention order made against him by Justice of the Peace. Accused was charged with uttering threats, counsel- ling to commit indictable of- fences, attempting to possess explosives and assault. Assault charge and some of threatening charges involved female com- plainant, who was accused's wife. Other charges involved accused's attempt to obtain explosives with stated intent of killing military personnel at nearby military base and of murdering other Canadians at different locations. Justice ordered accused to be detained on all three grounds. Applica- tion dismissed. Accused failed to establish that justice erred www.lawtimesnews.com in law. Addition of three sure- ties did not constitute mate- rial change in circumstances. Primary ground for detention was where it was necessary to ensure accused's attendance in court. Accused was flight risk. He had been in Canada for less than 18 months. His only fam- ily was his brother and sister- in-law. He was estranged from his wife who was his sponsor. Surrender of accused's Afghani passport was inadequate to en- sure his attendance in court. Secondary ground for deten- tion was where it was necessary for protection of public. De- tention was necessary because of accused's intent to harm public. Tertiary ground for detention applied where it was necessary to maintain confi- dence in administration of jus- tice. Crown's case was strong. Gravity of offences was serious because it included threat of indiscriminate wanton killing of innocent Canadians, with intent to undermine society and rule of law. Accused was to continue to be detained on all three grounds. R. v. Stanikzy (Jan. 20, 2011, Ont. S.C.J., Ray J., File No. CR 10-1410) 92 W.C.B. (2d) 277 (10 pp.). Sentence BREACH OFFENCES Accused's wilful failure to comply with reporting requirement required period of imprisonment Crown appealed $750 fine im- posed following guilty plea to failure to comply with proba- tion order. Accused failed to re- port for several months despite warning to improve his report- ing performance. Accused was 41-years old and had lengthy criminal record that included robbery and two convictions for sexual interference. Crown argued sentencing judge mis- applied appropriate principles of sentencing and that fine that was so lenient that it fell outside appropriate range of sanctions for similar offend- ers who were guilty of similar offences. Appeal allowed, 10 days intermittent imprison- ment substituted. Present con- viction was accused's fourth probation-related offence. Ac- cused's wilful failure to comply with reporting requirement required period of imprison- ment, especially considering that he had been incarcerated on two previous occasions for failure to comply with court orders. Fine of $750 did not fall within acceptable range even after giving due regard to judicial deference. R. v. Hill (Nov. 10, 2010, Ont. S.C.J., James J., File No. 10- 50) 92 W.C.B. (2d) 287 (4 pp.). CONDITIONAL SENTENCE Conditional sentence suspended and accused to serve 90 days of unexpired sentence in custody Trial of accused for breaching conditional sentence order. On March 5, 2010 accused was sentenced on one count of attempted theft and two PAGE 17 counts of robbery. Accused received 18-month condition- al sentence followed by two years of probation. He was 18-years old at time he com- mitted offences in 2008 for which he received conditional sentence. Accused was alleged to have breached house arrest provision of conditional sen- tence order by being absent from home for 12 minutes on August 17, 2010. To enforce house arrest condition accused was made subject to electron- ic supervision. Accused and his mother claimed he was at home in his bedroom during relevant times. He suggested that false alert was generated by monitoring system. Accused convicted. Crown proved on balance of probabilities that monitoring system accurately depicted that he was absent from his residence contrary to conditional sentence order and that he wilfully disobeyed house arrest condition. Court did not accept testimony of accused and his mother that he was at home when system indicated that he was absent. Accused, who had served five and half months of condition- al sentence, was not offender who was bent on disobeying house arrest condition in order to commit further offences or to endanger community safety. Rather, he was offender who was immature and irresponsi- ble. Despite being repeatedly warned he failed to appreciate true character of conditional sentence order. Based on ac- cused's youth, immaturity and lack of prior record and posi- tive features that supported his rehabilitation conditional sen- tence would not be terminat- ed. In order to preserve integ- rity of conditional sentence re- gime conditional sentence was suspended and accused had to serve 90 days of unexpired sen- tence in custody. Conditional sentence would resume once accused was released from cus- tody on conditions originally imposed. Court refused to exercise its discretion to allow some or all of suspension pe- riod be deemed as time served under conditional sentence. R. v. Sitaram (Jan. 19, 2011, Ont. C.J., Nakatsura J.) 92 W.C.B. (2d) 290 (27 pp.). Trial REASONS FOR JUDGMENT Deficiency in trial judge's reasons did not prevent meaningful review by court Accused appealed conviction for possession of drugs for purpose of trafficking. Ac- cused argued that evidentiary record provided no basis for why officer searched his vehi- cle and could not be shown to be search incidental to his ar- rest. Accused argued that trial judge's reasons dealing with s. 8 Charter issue were inadequate. Appeal dismissed. Officer tes- tified that accused had been arrested and drugs had been found on his person and then he conducted search of vehicle that yielded evidence under-