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Law Times • December 12, 2011 hyperlinking, individual refer- ring reader to other content. Individuals may attract liabil- ity for hyperlinking, however, if manner in which they have referred to content conveys de- famatory meaning. Nothing on defendant's page itself alleged to be defamatory. Insertion of hyperlinks, by itself, could not amount to publication. Crookes v. Wikimedia Foun- dation Inc. (Oct. 19, 2011, S.C.C., McLachlin C.J.C., Bin- nie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33412) Decision at 311 D.L.R. (4th) 647, 181 A.C.W.S. (3d) 389 was affi rmed. 206 A.C.W.S. (3d) 640 (71 pp.). TAX COURT OF CANADA Taxation INCOME TAX Rebates received by appellant were shareholder benefits and were taxable Appellant worked for company belonging to his father. Appel- lant and his brothers were sole directors and shareholders of company. During taxation years at issue company purchased life insurance for father of appel- lant as well as for appellant and his three brothers. Appellant received cheque by insurance company in 2000 for amount of $15,000 representing insur- ance rebate. Appellant did not claim amount of $15,000 on his income tax return. Appel- lant also received cheques from insurance company in 2002 for amounts of $8,430 and $34,630. Minister reassessed appellant and added to appel- lant's income for 2000 and 2002 taxation year's amounts of $15,000 and $43,060, respec- tively. Minister also assessed penalties in amounts of $1,816 and $4,972 for 2000 and 2002 taxation years. Appellant ap- pealed. Appeal dismissed. Re- bates received by appellant were shareholder benefi ts and were taxable. Rebates were too im- portant to be considered a gift. Th ere was gross negligence on part of appellant and penalties were justifi ed in the circum- stances. Lapalme v. Canada (Aug. 25, 2011, T.C.C., Favreau J., File No. 2008-4008(IT)G) Reasons in French. 206 A.C.W.S. (3d) 628 (22 pp.). ONTARIO CRIMINAL CASES Appeal GROUNDS Judge did not confuse touching with sexual touching Appeal by accused from his conviction on one count of sexual assault on basis that trial judge misapprehended evi- dence. Complainant, aged 18, consumed substantial amount of alcohol when she was out with accused and other friends. She spent night at accused's apartment and fell asleep on couch. She woke up twice to fi nd accused touching her va- gina. Complainant did not ask accused to stop because she never fully woke up and she was only half awake for several seconds. When she woke up she was unsure as to whether accused assaulted her but by time she returned home she was certain that she had been violated. Friend of accused and of complainant testifi ed that ac- cused admitted to her that he touched complainant and that there was no excuse for this type of behavior. Accused did not testify. Appeal dismissed. Find- ings of fact made by trial judge were supported by complainant's evidence. Judge did not misstate or misapprehend the evidence. He did not make inconsistent or contradictory fi ndings re- garding complainant's memory for he believed everything that she said and he found her to be a candid witness. At the same time, however, he properly held that her evidence had to be ap- proached with caution in light of her intoxicated condition. Judge did not fail to distinguish sexual assaults from other instances of touching that occurred between accused and complainant. He clearly understood what con- stituted sexual assault and he did not confuse touching with sexual touching. Judge did not err in fi nding that complainant's evidence proved allegations. He also did not fail to appreciate weaknesses in Crown's case. R. v. Lee (July 15, 2011, Ont. S.C.J., Garton J., File No. 116/09) Decision at 84 W.C.B. (2d) 849 affi rmed. 96 W.C.B. (2d) 438 (23 pp.). Assault ASSAULTING PEACE OFFICER Accused was entitled to resist officer In course of robbery investiga- tion, offi cers went to accused young person's house to get his side of story. Offi cers were in- vited into house by accused's mother. When offi cer entered accused's bedroom, accused took step to follow him. In at- tempt to stop accused from en- tering bedroom second offi cer put his arm in front of accused. Accused pushed offi cer's arm away, knocking offi cer off bal- ance. Th ird offi cer intervened and accused attempted to swat him away. Offi cers wrestled accused to ground and placed him under arrest. Charges dis- missed. No interpretation other than that offi cer conducted search of accused's bedroom without consent or search war- rant. No exigent circumstances existed to justify search. Offi cer engaged in unauthorized search of accused's bedroom. Second offi cer's attempt to prevent ac- cused from entering bedroom was unlawful interference with accused's liberty and property. Accused was entitled to resist offi cer. Resistance by accused was mild and no more than CASELAW what was required to proceed past offi cers blocking his path. Accused's resistance did not involve unreasonable force. Ac- cused's resistance to unauthor- ized search without using un- reasonable force did not attract criminal liability. R. v. R. (T.) (Aug. 23, 2011, Ont. C.J., Jones J., File No. YO 22900-00) 96 W.C.B. (2d) 444 (8 pp.). Charter of Rights ENFORCEMENT OF RIGHTS Child protection worker did not have implied authority to search accused's home Application by accused, who was charged with several fi re- arm off ences, to exclude evi- dence because her rights un- der s. 8 of Canadian Charter of Rights and Freedoms were violated when police searched her home without a warrant. Accused claimed she did not provide valid consent to police to search her home. Children's Aid Society ("CAS") received tip that accused was storing handgun in her closet. Intake worker made appointment to see accused and, because she feared for her safety and she did not want to search for handgun itself, she was accompanied by two police offi cers. One half hour was spent trying to ob- tain accused's consent to search closet. Accused was told if she did not consent her child would be apprehended. She refused to allow search but she fi nally led police to her bedroom where they found sawed-off shotgun and ammunition in closet. Ap- plication allowed. Accused con- sented to search but, because of apprehension threat it was not voluntary. Child protection worker did not have implied authority to search accused's home, even under CAS's appre- hension powers. Police offi cers did not have power under com- mon law to search premises be- cause it was not emergency situ- ation. Accused had signifi cant privacy interest in her home, particularly her bedroom closet. Her Charter rights were not deliberately breached. Breach, however, was signifi cant. Evi- dence was excluded as to admit it would bring administration of justice into disrepute. R. v. Butts (Aug. 30, 2011, Ont. S.C.J., Polowin J., File No. 09-10261) 96 W.C.B. (2d) 451 (25 pp.). Evidence IDENTITY OF ACCUSED No physical evidence to link accused with gun Trial of accused young person for 10 fi rearm off ences. Black male rode bicycle at high rate of speed. When he saw two police offi cers he abruptly stopped, turned around and pedaled away. He then aban- doned bicycle and ran into al- leyway. Woman saw male put something into garbage can. She told police offi cer what she saw and offi cer searched can and found rifl e and ammuni- tion in it. Police subsequently www.lawtimesnews.com found black male who was ac- cused. Th ere were suspicious circumstances in that accused was arrested 2 minutes and 24 seconds after police called for assistance. Accused conceded that if it was proven that he was person who put rifl e into can, then he would be guilty. Th ere was no physical evidence, such as fi ngerprints, to link accused with gun. Accused acquitted of all charges. Court was not satis- fi ed, beyond reasonable doubt, that accused was person who disposed of gun. Direct eyewit- ness identifi cation evidence was inadequate. It was insuffi cient to convict accused even when it was combined with circumstan- tial evidence of opportunity and with suspicious circumstances of this case. R. v. P.-V. (J.) (July 28, 2011, Ont. C.J., Jones J., File No. Y 022326) 96 W.C.B. (2d) 466 (10 pp.). Extraordinary Remedies CERTIORARI Judge's method allowed accused to make his own sentence Crown applied for order of Man- damus with Certiorari in Aid re- quiring trial judge to exercise his jurisdiction to impose sentence on all counts before him in time- ly manner. Accused had pleaded guilty to eleven off ences from six separate Informations. Presiding judge entered fi ndings of guilt on each of eleven off ences. In- stead of proceeding to sentenc- ing, trial judge adjourned matter to allow for accused to confi rm that if he was released, he would that PAGE 15 have some sort of residence and indicated if accused was able to confi rm that he had been able to secure appropriate place of residence, he would sentence accused on one of his off ences and then release him on bail to see how he did. Trial judge went on to state that accused would thereafter return to court on in- tervals to see how he was doing and to be sentenced on another of off ences at each subsequent appearance and that if accused stayed out of trouble, trial judge would impose another non- custodial sentence on each sub- sequent date. Crown objected to that approach and objection was dismissed. Application granted and order of Mandamus with Certiorari in Aid to issue quash- ing decision of learned trial judge and directing trial judge to impose sentence at one time on all counts on which accused had been found guilty, when re- quired information was available to court. Court admired sensi- tivity trial judge had to accused's needs but found that his method allowed accused to make his own sentence which was not in compliance with provisions of s. 720(1) of Criminal Code. Court found that trial judge did not sentence accused immediately to allow court to continue to moni- tor him and that sentence delay was not for primary purpose to permit appropriate information to be put before court to assist in sentencing. R. v. Roy (Aug. 26, 2011, Ont. S.C.J., Turnbull J., File No. CR-11-7309) 96 W.C.B. (2d) 470 (8 pp.). When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. 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