The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50229
Law TiMes • March 28, 2011 Plaintiff imported used mo- tor vehicles from United States for re-sale in Canada. Plaintiff was neither "manufacturer" nor "licensed wholesaler" of motor vehicles under Excise Tax Act (Can.). Plaintiff imported 270 used motor vehicles that con- tained air conditioner units. Defendant collected excise taxes of $100 per vehicle, for total of $27,000, pursuant to s. 23 and Schedule I, s. 7, of Act. Plaintiff filed excise tax refund applica- tion. Defendant disallowed refund claim. Plaintiff's notice of objection was disallowed. CITT correctly dismissed ap- peal. Tax is deterrent against use of energy inefficient motor vehicles. Air conditioners are high energy using components that decrease energy efficiency when installed in motor vehi- cles. Legislative scheme oper- ates so that this deterrent tax is levied at point at which vehicle will be put into use in Canada. Importer of used vehicle pur- chased abroad is bringing into Canada energy inefficient ve- hicle that has not yet been put into use in Canada. This is be- haviour that Parliament wished to deter by imposing excise tax. It followed that interpretation that excise tax applies to both new and used imported ve- hicles with air conditioners, is most consistent with purpose of s. 23 of Act. 1068827 Ontario Inc. v. M.N.R. (Jan. 13, 2011, F.C., Heneghan J., File No. T-407- 09) 197 A.C.W.S. (3d) 112 (17 pp.). Human Rights Legislation DISCRIMINATION Measures adopted by employer were sufficient to accommodate applicant's medical disability Application for judicial review of decision by commission summarily dismissing appli- cant's complaint of discrimina- tion. Applicant took disability leave from his employment be- cause of stress-related illness. Applicant returned to work on gradual basis. Employer wrote to employee's physician asking numerous questions directed at determining employee's overall recovery and abilities to return to work without limitation. Applicant's employment was terminated. Prior to termina- tion, applicant was offered al- ternative employment at same salary. Application dismissed. Finding by investigator and commission that measures ad- opted by employer were suf- ficient to accommodate appli- cant's medical disability and that the had not been treated in adverse differential manner was reasonable. Tutty v. Canada (Attorney General) (Jan. 18, 2011, F.C., Barnes J., File No. T-551-10) 197 A.C.W.S. (3d) 189 (18 pp.). Natural Resources FISHERIES Minister acted unlawfully with respect to protection statement and protection order Application by environmental groups for judicial review of pro- tection statement and protec- tion order issued by Minister of Fisheries and Oceans. Minister was responsible for protecting critical habitat of aquatic spe- cies pursuant to Species at Risk Act (Can.). Two populations of killer whales inhabited waters off coast of British Columbia. One population was threat- ened species while other popu- lation was endangered species. Recovery strategy was prepared identifying critical habitat for killer whales and threats to crit- ical habitat. Section 58 of Act required Minister to implement either direct or indirect legal protection of critical habitat. Direct protection consisted of protection order issued under s. 58(5)(a) of Act prohibiting destruction of critical habitat. Indirect protection consisted of protection statement issued under s. 58(5)(b) of Act listing federal legislation that already applied to protect critical habi- tat. Minister issued protection statement that listed provincial laws, prospective laws, non- statutory instruments, and federal laws with Ministerial discretion as providing legal protection for critical habitat. Protection statement also limit- ed legally protected critical hab- itat to its geophysical attributes while providing for discretion- ary protection of its biological and other ecosystem features. Environmental groups com- menced application for judicial review. Minister responded by issuing protection order and ac- companying regulatory impact analysis statement ("RIAS") without usual public consulta- tion. Environmental groups asserted RIAS maintained dis- tinction between legally pro- tected geophysical attributes of critical habitat and discretion- ary protection for biological and other ecosystem features of critical habitat. Environmental groups commenced second ap- plication for judicial review and applications were consoli- dated. Application granted. Declarations were issued speci- fying manner in which protec- tion statement and protection order were unlawful. Standard of review was correctness since issues relating to validity of protection statement and pro- tection order were grounded in statutory interpretation. While issuance of protection order rendered judicial review of protection statement moot, issues relating to protection statement were still considered. Despite various concessions on part of Minister, parties' inter- pretation of s. 58 of Act were still significantly at odds on fundamental issues that had far-reaching implications be- yond present case. Continuing legal uncertainty would have environmental costs, and vul- nerable species could be de- prived of full protection of Act. Positions taken my Minister to avoid judicial review supported need to make determination to prevent further unlawful conduct. Protection statement had not complied with s. 58(5) CASELAW (b) of Act. Minister conceded critical habitat included all of its attributes and features and not just geophysical attributes. Minister also conceded pro- tection statement could not rely on provincial laws or pro- spective laws. Environmental groups were correct in assert- ing protection statement could not rely upon non-statutory instruments and Ministerial discretion as providing legal protection for critical habitat. Protection statements issued under s. 58(5)(b) of Act were intended to be substitutes for protection orders mandated by s. 58(5)(a) of Act. Protection statement could only be used where protection order was not required because equivalent protection was already pro- vided by current federal legisla- tion. Discretionary provisions did not provide equivalent protection and so could not be relied upon. Protection order was conceded to be unlawful. Minister failed to establish pro- tection order was immune from judicial review. Minister's obli- gations under Act were manda- tory and not discretionary. Act contained no privative clause or other provision for shielding protection order from review. Problems relating to interpre- tation of protection order and accompanying recovery strat- egy and RIAS were not specu- lative. Protection order was properly reviewable under s. 18 of Federal Courts Act (Can.). Minister never provided mean- ingful assurance that problems with protection order would be addressed. Second applica- tion could have been avoided if Minister had simply corrected recovery strategy and RIAS. David Suzuki Foundation v. Canada (Minister of Fisheries and Oceans) (Dec. 7, 2010, F.C., Russell J., File No. T-541- 09) 197 A.C.W.S. (3d) 258 (127 pp.). CRIMINAL CASES Appeal SENTENCE APPEAL Sentence of less than two years for possession of firearms for purpose of trafficking offences would have been manifestly unfit Accused appealed his sentence of six years' incarceration be- fore credit for pretrial custody following conviction on nu- merous firearms offences and one count of illegal possession of drugs. Accused asked court to adjust sentence having re- gard to immigration conse- quences he could face. Appeal dismissed. Sentence of less than two years for possession of firearms for purpose of traffick- ing offences would have been manifestly unfit, given number of firearms and their character- istics, especially possession of fully automatic pistol with its three over-capacity magazines and silencer. R. v. McKenzie (Jan. 18, 2011, Ont. C.A., Rosenberg, Goudge and Blair JJ.A., File No. www.lawtimesnews.com C51595) 92 W.C.B. (2d) 368 (8 pp.). Breathalyzer REFUSAL TO PROVIDE SAMPLE Court left in dark as to whether error was on part of accused or on part of approved screening device Officer testified he instructed accused to blow continuously into approved screening device with long steady breath and to continue to do so until he said to stop. Officer testified ac- cused blew into device on six separate occasions but only for short periods before he stopped without officer having told him to do so. Accused testified that each time he tried to blow into device, officer pulled it away from him, preventing him from continuing to blow. Charge dismissed. Court did not be- lieve accused and his evidence did not raise reasonable doubt. No evidence with respect to what, if any, training officer had received regarding device and its operation. No evidence about device, what person op- erating it must do before it will work properly, or what subject providing samples into device must do. Officer used mouthpiece to demonstrate to accused how he should blow, but not to determine if any- thing was obstructing passage of air through device itself. No evidence as to what error mes- sage meant and court was left in dark as to whether error was on part of accused or on part of approved screening device. Had officer said that he at- tached mouthpiece into device and that his breath proceeded freely into device, court would have been satisfied beyond rea- sonable doubt that problem was with accused and not with device. Court was highly suspi- cious but not satisfied beyond reasonable doubt. R. v. Shewan (Feb. 4, 2011, Ont. C.J., Harris J., File No. 2111-998-10-N0618-00) 92 W.C.B. (2d) 356 (7 pp.). Charter Of Rights ENFORCEMENT OF RIGHTS Accused subjected to unreasonable search and seizure Accused charged with several of- fences under Controlled Drugs and Substances Act (Can.). Accused applied to exclude evi- dence on basis of breaches of ss. 8 and 9 of Canadian Charter of Rights and Freedoms. Evidence included cocaine and marijuana seized by investi- gating officer upon arresting accused. Officer investigated accused after observing him stop at gas station to determine whether he was driving under influence. Subsequent investi- gation revealed drugs found on person of accused. Accused s. 8 rights breached. He was sub- jected to unreasonable search and seizure. Officer should have ceased questioning and detention of accused once he realized there was no indicia of impairment. Officer admit- ted that he had no reasonable PAGE 17 and probable grounds to be- lieve that accused had any il- licit drugs on his person or in his vehicle. Officer engaged in investigation to discover illicit substances in possession of ac- cused. Charter breach serious, it impacted accused's right to be free from unreasonable search and seizure and admission of evidence would have negative effect on administration of jus- tice despite society's interest in seeing cases adjudicated on its merits. Evidence excluded. R. v. Pouya (Dec. 29, 2010, Ont. C.J., Forsyth J., File No. 08-986; 08-962) 92 W.C.B. (2d) 363 (65 pp.). SEARCH AND SEIZURE Police had reasonable grounds to arrest accused Accused appealed from his con- viction on numerous firearms offences and one count of il- legal possession of drugs. Case turned entirely on lawfulness of accused's arrest and subse- quent search of his automobile incident to that arrest. Trial judge found that police had reasonable grounds to arrest accused and that there was no violation of his Charter rights. After investigating accused for activity in weapons' smuggling police stopped him in high-risk takedown involving arrest at gunpoint. Appeals dismissed. Totality of evidence established requisite objective grounds for police officer's subjective belief that accused was in unlawful possession of firearms. R. v. McKenzie (Jan. 18, 2011, Ont. C.A., Rosenberg, Goudge and Blair JJ.A., File No. C51595) 92 W.C.B. (2d) 368 (8 pp.). Courts JUDGES Application judge's order quashing mistrial upheld Accused was charged with four counts of aiding and abet- ting Russian nationals to enter Canada without proper docu- mentation. At conclusion of evidence trial judge declared mistrial on his own motion and over objections of both Crown and accused because he might be perceived as being biased against accused based on fact that he had previously written letters of reference for court re- porter in case who had just tes- tified as witness after accused had challenged production of transcripts. Crown brought application for order in nature of certiorari and mandamus quashing mistrial order and was successful. Accused now appealed application judge's or- der quashing mistrial. Appeal dismissed. Court agreed with application judge's order and with his reasons for making order. Declaration of mistrial should only be granted as last resort, in clearest of cases and where no remedy short of that relief will adequately redress ac- tual harm occasioned. R. v. Toutissani (Nov. 13, 2007, Ont. C.A., MacPherson, Juriansz and LaForme JJ.A., File No. C47181) 92 W.C.B. (2d) 371 (3 pp.).