Law Times

PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Evidence CONFESSIONS AND ADMISSIONS "Duncan instruction" should not be adopted by Canadian courts Accused appealed judgment upholding convictions for sec- ond degree murder. In charging jury, trial judge gave "Duncan instruction" that incriminat- ing statements likely to be true while excuses for one's own be- havior do not necessarily carry same persuasive weight. Appeals dismissed. Duncan instruction should not be adopted by Cana- dian courts. Expounding ratio- nale for admissibility exception for accused's out-of-court state- ments containing both inculpa- tory and exculpatory elements risked confusing jury. Dangerous to suggest that inculpatory and exculpatory statements should be weighed differently. In context here, however, instruction could not have misled the jury and did not constitute reversible error. R. v. Rojas (Oct. 24, 2008, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ., File No. 32080; 32087) Appeal from 70 W.C.B. (2d) 552 dismissed. Order No. 008/301/120 (30 pp.). Trial judge erred by instructing jury that law presumes incriminating part of accused's statement likely to be true while excuses do not carry same weight Accused appealed judgment up- holding conviction for first de- gree murder. After arrest, accused wrote letters proclaiming his in- nocence. Accused conceded that letters written as ruse but main- tained that expressions of inno- cence truthful. Crown relied on letters as post-offence conduct evidence of guilt. Appeal allowed and new trial ordered. Trial judge erred by instructing jury that law presumes incriminating part of accused's statement likely to be true while excuses do not carry same weight. Instruction sug- gested that more weight should be given to incriminating infer- ences from letters than to facially exculpatory statements. Couch- ing instruction in terms of legal presumption exacerbated preju- dice to accused. Instruction not harmless error. Court of Appeal erred in imposing curative pro- viso. Charron, Deschamps and Rothstein JJ. dissenting. R. v. Illes (Oct. 24, 2008, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Char- ron and Rothstein JJ., File No. 31954) Appeal from 72 W.C.B. (2d) 549 allowed. Order No. 008/301/119 (40 pp.). Murder FIRST-DEGREE MURDER Fact that accused confined victim for purpose of committing non- enumerated offence of robbery did not make s. 231(5)(e) inapplicable Accused appealed judgment upholding conviction for first degree murder. Victim was shot during robbery. Jury con- victed accused under s. 231(5) (e) of Criminal Code, which ap- plied where death caused while committing unlawful confine- ment. Appeal dismissed. Section 231(5)(e) applied if murder and enumerated offence of unlawful confinement were linked tem- porally and causally. Fact that accused confined victim for pur- pose of committing non-enu- merated offence of robbery did not make s. 231(5)(e) inapplica- ble. Ample evidence to support finding of unlawful confinement independent of killing. Open to jury to conclude that accused used gun to achieve position of dominance over victim for sig- nificant duration and exploited position by killing her to elimi- nate potential witness. Temporal and causal link was established. R. v. Pritchard (Oct. 30, 2008, S.C.C., McLachlin C.J.C., Bin- nie, Deschamps, Fish, Abella, Charron and Rothstein JJ., File No. 31970) Appeal from 72 W.C.B. (2d) 288 dismissed. Or- der No. 008/308/002 (28 pp.). FEDERAL COURT OF APPEAL Criminal Law PROCEEDS OF CRIME Reasonably open to Minister to confirm forfeiture Appellant failed to report she was carrying $21,843 in Cana- dian, American, Hong Kong and Chinese currency, contra- vening s. 12(1) of Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.). Customs officers seized money as forfeited in accordance with s. 18(2) of Act. Minister deter- mined that forfeiture of seized currency shall be maintained. Judge did not err in denying ap- plication for judicial review from Minister's decision. Minister was not satisfied that any credible information had been provided respecting legitimacy of funds. It was reasonably open to Minister to confirm forfeiture. December 8, 2008 • Law Times COURT DECISIONS ainmaker_LT_June2_08.indd 1 CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: 5/28/08 10:43:29 AM i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. Yang v. Canada (Minister of Public Safety) (Sep. 23, 2008, F.C.A., Decary, Blais and Ryder JJ.A., File No. A-97-08) Appeal from 163 A.C.W.S. (3d) 968; 76 W.C.B. (2d) 621 dismissed. Or- der No. 008/281/001 (9 pp.). FEDERAL COURT Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY Government had discretion to decide not to grant a new lease Applicant sought judicial re- view of Parks Canada decision to renew its existing Outlying Commercial Accommodation ("OCA") lease for 21 years rather than to grant a new lease for 42 years. Existing lease ini- tially granted for 42-year term in 1963 that expired on December 31, 2004 with right of renewal for 21 years under specified rent rates set in the National Parks of Canada Lease and License of Occupation Regulations (Can.). Applicant notified in writing in 2001 that redevelop- ment and expansion of the ap- plicant's OCA would have to meet certain Guidelines that would be environmentally ad- vantageous and that a policy di- rective was in place that would allow the same rent rates in the Regulation provided lease agree- ment reached prior to proposed changes to rent regime that were to be implemented shortly after lease expected to expire. Ex- tensive negotiations started in 2001 did not result in new lease agreement prior to expiry of ex- isting lease as government did not accept applicant's proposed redevelopment plans. Applicant signed renewal for 21 years and in October 2006 submitted a re- vised proposal for redevelopment based on 42-year lease with rent to be fixed by the Regulation. Government advised in writing that any new lease would have to be under new rent provisions. Government has discretion to decide not to grant a new lease and its decision was reasonable. If a new lease had been agreed to in time, government would have been bound to accept the rent rates chosen by the appli- cant from the Regulations. Ap- plicant continues to have option to enter new lease for 42 years with government on terms ac- ceptable to government subject to the new rent regime. Johnston Canyon Co. v. Can- ada (Attorney General) (Aug. 14, 2008, F.C., Mosley J., File No. T-1688-06) Order No. 008/253/125 (18 pp.). www.lawtimesnews.com MOBILITY RIGHTS Applicant's mobility rights were restricted by virtue of U.S. prison sentence Applicant, aged 24, was serving sentence in U.S.A. for convic- tion on several counts of child molestation. Applicant request- ed transfer to Canada to serve sentence, pursuant to s. 10 of International Transfer of Of- fenders Act. Minister denied request. Applicant sought judi- cial review of decision. Applica- tion allowed. Applicant did not have constitutional right to serve sentence in Canada. Act did not engage applicant's mobility rights under Canadian Charter of Rights and Freedoms. Applicant's mobility rights were restricted by virtue of U.S. prison sentence. Minister's decision was in error for being made with disregard to rel- evant factors in Act and evidence in record. Getkate v. Canada (Minister of Public Safety and Emergency Pre- paredness) (Aug. 25, 2008, F.C., Kelen J., File No. T-817-07) Or- der No. 008/253/131 (24 pp.). TAX COURT OF CANADA Taxation INCOME TAX No evidence that appellant adopted investment intent with respect to property Appellant transferred land to company of which appellant owned 80% of shares. Appel- lant and company filed joint election designating $494,900 as fair market value of land and $186,500 as agreed amount. Ap- pellant reported gain of $79,500. CRA argued land was inventory in hands of appellant and was not eligible property. CRA re- garded joint election as invalid and determined appellant real- ized profit of $387,900. Appeal was dismissed. There was no evidence appellant adopted in- vestment intent with respect to property. Appellant wrote down book value of property as inven- tory. Offer to lease was not evi- dence of change of intent. Dalron Construction Ltd. v. Canada (Aug. 26, 2008, T.C.C., Mogan D.J.T.C.C., File No. 2006-2078(IT)G) Order No. 008/255/040 (13 pp.). Appellant had reasonable expectation of profit from emu farming Minister reduced appellant's claimed farm losses. Appel- lant resided with wife on farm. Appellant was successful den- tist and operated dental clinic. Appellant owned 20 horses and actively promoted them at show rings. Appellant changed focus to emu farming. Appellant had no profitable emu sale since 1995. Appeals were allowed. Appel- lant had reasonable expectation of profit from emu farming. In- come was derived from farming and another source. Appellant's dental business was supporting farming business. Farming was not hobby for appellant, but was commercial source of income for years in question. Loyens v. Canada (Aug. 29, 2008, T.C.C., McArthur J.T.C.C., File No. 2004- Parties were dealing at arm's length. 3590(IT)G) Or- der No. 008/255/041 (13 pp.). Parties were dealing at arm's length Deceased owned 100% of shares of FRM. FRM paid deceased management fees by interest bearing promissory note. De- ceased gifted notes to Foundation of which deceased was control- ling mind. Foundation sold notes to third party on same terms as donated notes. CRA disal- lowed charitable donation credits claimed by deceased. CRA argued sale was not arm's length. Appeal was allowed. Section 251(1) (a), (b) and (c) of Income Tax Act (Can.), did not apply. Par- ties were dealing at arm's length. GAAR did not apply. Act specif- ically allowed nature of transac- tion conducted in case. Remai Estate v. Canada (Aug. 19, 2008, T.C.C., Ros- siter A.C.J.T.C.C., File No. 2007-1132(IT)G) Order No. 008/254/044 (22 pp.). ONTARIO CIVIL CASES Arbitration STAY OF PROCEEDINGS Plaintiff did not prove arbitration clause was incapable of performance Parties entered partnership to acquire commercial shopping malls. Plaintiff claimed defen- dant made misrepresentations, stole from plaintiff and wrong- fully diverted moneys from ven- tures. Defendant argued action should be stayed because dispute was subject of arbitration agree- ment. Defendant sought Mareva injunction restraining plain- tiff from dealing with property other than in normal course of business. Application for stay was granted. Substance of claims arose out of dispute with respect to arbitration agreement. Plain- tiff did not prove arbitration clause was incapable of perfor- mance. Plaintiff did not estab- lish strong prima facie case of fraud. Plaintiff did not establish substantial prima facie evidence

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