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law Times • July 12, 2010 proper width required by city by-law. Accused argued he could not be convicted of mis- chief for obstructing unlawful use. Accused argued he hon- estly believed he had colour of right to obstruct laneway and that trial judge erred in failing to fi nd so. Accused, who was unrepresented at trial, argued trial judge was obliged to advise him of need to give evidence to establish that he had hon- est belief he could legally ob- struct laneway. Accused argued trial judge failed to provide adequate reasons with respect to defence of colour of right. Appeal dismissed. Crown did not fail to satisfy element of off ence because accused could demonstrate he was interfer- ing with unlawful use. Accused was not permitted to obstruct lawful use of laneway because complainant made particular use of it that was not in com- pliance with by-law. Accused interfered with lawful use of laneway by complainant by interfering with other uses to which complainant could have put laneway but for obstruc- tion placed there. Crown did not consent or agree that ac- cused had honest belief that law permitted him to do what he did and court could not rely on assumption or make fi nd- ing arising out of statements made by accused that were not evidence. Trial judge found there was no colour of right. Unrepresented accused was fa- miliar with process, took active role in proceedings and, where necessary, was assisted by ex- planations of trial judge. In absence of counsel, it was not responsibility of trial judge to provide advice regarding giv- ing evidence and weighing of benefi ts of doing so against risk associated with being subjected to cross-examination. Nothing to suggest that trial was unfair or that exercise of discretion demonstrated by guidance trial judge provided was improper. Reasons made it clear to parties that defence of colour of right failed because judge did not accept that accused had honest belief necessary to demonstrate applicability of defence. Ac- cused was employed by city as land use planner and it was not possible that he understood that breaching of zoning by- law permitted him to obstruct right-of-way complainant had been granted, especially since violation notice had been is- sued. R. v. Janusas (Apr. 22, 2010, Ont. S.C.J., Lederer J., File No. SCA 90/08) 88 W.C.B. (2d) 62 (18 pp.). Motor Vehicles PROVINCIAL REGULATION Accused found not guilty of failing to move into another lane for emergency vehicle Trial of accused for failing to move into another lane for emergency vehicle, if safe to do so, contrary to s. 159.1(2) of Highway Traffi c Act (Ont.). Off ence was strict liability reg- ulatory off ence. Accused was driving westbound on highway that consisted of three lanes. As accused drove he approached emergency vehicle, being un- marked police vehicle, that was stopped on right shoulder of westbound lanes. Accused continued to drive in right- hand lane, that was adjacent to lane where police vehicle was located and passed police vehicle without changing into middle lane. Accused found not guilty. Crown failed to prove that lamp of police ve- hicle produced intermittent fl ashes of red light only, which was requirement of s. 159.1(2). Police offi cer, who witnessed what happened, testifi ed that stopped vehicle's emergency lights fl ashed intermittent fl ashes of red and blue. Vehicle that approached stopped emer- gency vehicle on highway that produced intermittent fl ashes of red and blue light could not be convicted under s. 159.1(2). Crown therefore failed to prove actus reus of off ence. R. v. Drljevic (May 6, 2010, Ont. C.J., Dechert J.P., File No. 1260-999-00-95115133) Order No. 010/147/169 (14 pp.). Search And Seizure FORFEITURE Applicants were not entitled to relief from forfeiture Application for relief from forfeiture pursuant to s. 20 of Controlled Drugs and Sub- stances Act (Can.). Police located marijuana grow op- eration in property. Applicants paid for property but put its title in name of their son. Son was on title when operation was discovered and property was subsequently transferred to applicants. Son and female applicant's brother were pres- ent at property when police discovered marijuana. Brother pleaded guilty and charges against son were withdrawn. After conviction property was ordered to be forfeited. Judge decided that applicants were not entitled to relief from for- feiture because they acquired title in circumstances where property was being transferred to avoid forfeiture. Th ey also did not appear innocent of any complicity or collusion with respect to off ence committed on property. Application dis- missed. Applicants were not convicted of designated sub- stance off ence linked to for- feited property. Th ey did not acquire interest in property from wife's brother. Applicants had equitable interest in prop- erty. Applicants were not cred- ible witnesses. Court therefore did not believe their claim that they had no knowledge of or involvement in marijuana grow operation. Explanation given by applicants why they put ti- tle in name of their son because he was involved in renovations CASELAW or because they were too busy to sell it defi ed common sense. Son was put on title because applicants wanted to distance themselves from illegal activi- ties that they knew were being carried on in property. Appli- cants were therefore not inno- cent of any complicity regard- ing off ence. Th ey also did not exercise all reasonable care over three-year period to be satisfi ed that property was not being used for unlawful activities. R. v. Sportun (May 25, 2010, Ont. S.C.J., Hourigan J., File No. M208/09) 88 W.C.B. (2d) 92 (14 pp.). Young Persons FINGERPRINTING Fingerprints were lawfully taken Accused brought application for stay of proceedings or order excluding evidence. Accused found guilty of common as- sault and received six-month conditional sentence. He was young off ender at time of ar- rest and prints were lawfully taken. In later incident police recovered prints from scene of robbery. Prints were found to be accused's and he was in- vestigated for robbery off ence. When prints were fi rst ob- tained record of prints could be retained for three years but available to any peace offi cer for purpose of investigating of- fence. Under changes to Youth Criminal Justice Act (Can.) prints could be retained for eight years. Eight-year period had not elapsed so it was not unlawful to access record. Rea- sonable and probable grounds existed to arrest accused. R. v. B. (G.) (Mar. 30, 2010, Ont. S.C.J., Charbonneau J., File No. 07-826) 88 W.C.B. (2d) 29 (10 pp.). FEDERAL COURT OF APPEAL Taxation INCOME TAX Tax Court judge did not err in finding evidence insufficient to prove that employer provided parking space primarily for business reasons Appellant received free parking pass when he was promoted to position of Director of Income Taxation. Driving to work re- duced daily commute time by one hour a day. During au- dit, employer advised Canada Revenue Agency that parking generally provided to employ- ees in pay bands 5 and above and to limited number of em- ployees below band 5 who had particular need. Director of Income Taxation position in pay band 5. Tax Court Judge adopted approach set out in previous test case in which Tax Court concluded relevant provision of Income Tax Act (Can.), required consideration of number of facts, key factor www.lawtimesnews.com being who primarily benefi ted from complimentary parking arrangement. Th is, in turn, re- quired assessment of totality of evidence to assess whether, in each taxpayer's circumstances, enjoyment of parking privileges ancillary to benefi t derived by employer. Judge held that evi- dence insuffi cient to fi nd busi- ness purpose such that benefi t of pass accrued primarily to Te- lus. Appellant testifi ed manager told him parking pass given to facilitate overtime required in new position but he failed to call manager as witness. Judge found that although travel time appellant saved spent at work, this was essentially mat- ter of personal choice. In as- sessing value of pass, Tax Court Judge felt compelled to apply "cost saved" approach. She concluded most eff ective way for appellant to work longer hours without intruding on personal time was to drive to work. Cost saved, therefore, was price charged to members of public who paid to park in employer's garage. Appeal dis- missed. Relevant provision of Act is s. 6(1)(a) which states that income from offi ce or em- ployment shall include "the val- ue of board, lodging and other benefi ts of any kind whatever received or enjoyed by the tax- payer in the year in respect of, in the course of, or by virtue of an offi ce or employment". PAGE 19 Th is paragraph quite broad, referring to material acquisi- tion which confers economic benefi t. Tax Court Judge's fi nding that economic benefi t conferred was legal conclusion that fl owed from evidence that employer provided parking passes to some employees free of charge while other employees had to pay for parking. Without more, provision of parking pass in that circumstance conferred economic benefi t. Tax Court Judge addressed conferral of economic advantage when she considered valuation of benefi t. She rejected argument that costs appellant incurred for using car for daily commute eliminated economic advantage otherwise conferred by parking pass. Tax Court Judge did not err in fi nding evidence insuffi cient to prove that employer pro- vided parking space primarily for business reasons. Open for her to fi nd it necessary for ap- pellant to have called manager to testify. Nor did Tax Court Judge err by valuing parking pass in amount of fair market value given inherent fairness of this method of valuation and absence of objective evidence demonstrating it was inappro- priate. Schroter v. Canada (Apr. 15, 2010, F.C.A., Sharlow, Dawson and Layden-Stevenson JJ.A., File No. A-36-09) 188 A.C.W.S. (3d) 592 (18 pp.). LT 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. 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