Law Times

Law Times • November 23, 2009 of solicitors to lead evidence on issues of inadvertence and preju- dice militated against motion. Perera v. Pierre (Oct. 13, 2009, Ont. S.C.J., Master Dash, File No. 06-CV-304744PD2) Order No. 009/287/005 (10 pp.). Professions BARRISTERS AND SOLICITORS Counsel ordered to pay $250 directly to Crown for coming late to court Special hearing to address con- duct of defendant's counsel who had been late for court twice. Counsel ordered to pay $250 in costs, directly to the Crown. Contempt power to be used spar- ingly, but necessary in this case to protect rule of law. Despite being reprimanded by court for first incident of lateness, counsel appeared late again with no apol- ogy. In submission for this hear- ing, counsel still failed to apolo- gize, instead insisting that court owed his client an apology for not proceeding with trial when he arrived. Since counsel refused to see he was at fault, despite lack of excuse for his habitual lateness, a sanction was required to change his behaviour. Nicol (Re) (Sep. 21, 2009, Ont. S.C.J., Smith J.) Order No. 009/286/021 (6 pp.). ONTARIO CRIMINAL CASES Evidence Provincial Offences GENERAL Conviction for interfering with watercourse without written permission of Conservation Authority upheld on appeal Accused appealed conviction for interfering with watercourse with- out written permission of Con- servation Authority. Creek ran through accused's property. Ac- cused obtained permit in 1993 to dredge mud hole. Accused placed rocks along edge of mud hole to keep it separate from creek. Jus- tice of peace found that dredging work of accused had created sec- ond channel of creek on accused's property and stones had therefore been placed in creek. Appeal dis- missed. Interference with water- course constituted continuing offence even though accused did not place rocks in water on date of alleged offence. Permit ac- cused obtained in 1993 was time- limited. Accused did not obtain authorization from Conservation Authority. Justice of peace was entitled to find that accused had created second channel of creek. Justice of peace clearly rejected accused's evidence. Given finding that accused had created second- ary channel, it was not necessary for justice of peace to address whether it was caused by flooding by downstream obstruction. Rea- sons of justice of peace were suf- ficient to explain basis of decision and to permit appellate review. R. v. Allan (Oct. 13, 2009, Ont. C.J., Wake J.) Order No. 009/293/051 (11 pp.). Publication Bans And Restrictions Crown's application for publication ban was granted Application by the Crown for a publication ban. Accused plead- ed guilty to assisting JR to escape knowing that he committed murder. Proceeding was then ad- journed for the purpose of obtain- ing a pre-sentence report and the preparation of a statement of facts in respect of the offence. Crown sought deferral of the publication and broadcasting of the evidence to be proferred as the basis for finding the accused guilty, includ- ing the statement of facts, the de- tailed submissions made by coun- sel during the sentencing hearing, and, any factually specific reasons of the Court for the sentence im- posed, pending completion of the criminal proceedings against JR. Application allowed. Appropri- ate remedy was to release to the media a judicial summary of the facts, and, pending completion of the trial of JR, or further court order, a ban on the publication of any and all evidence, submis- sions and findings that referred to or extended beyond the sum- mary. Without the ban there was a substantial risk to a fair trial for JR. Circumstances that gave rise to the charges against the accused and JR were extremely sensa- tional. This was a case in which a temporary and limited restriction of the public's right to know was necessary to prevent a real and substantial risk to the fairness of JR's trial. Reasonably available alternative measures were insuf- ficient to prevent the risk of taint- ing a potential jury's impartial- ity. Blanket prohibition was also inappropriate. Judicial summary would meet the ends of justice and would ensure protection of JR's right to a fair trial while it rec- ognized the freedom of the press and the public's right to know. R. v. Gilbert-Cassidy (Aug. 31, 2009, Ont. S.C.J., Templeton J.) Order No. 009/273/062 (20 pp.). Sentence PREVENTIVE DETENTION Sentencing sanctions available under long-term offender regime demonstrably insufficient to reduce threat to public safety posed by accused to acceptable level Exercise of judicial discretion. Sentencing sanctions available under long-term offender regime were demonstrably insufficient to reduce threat to public safety posed by accused to acceptable level. No less intrusive sentenc- ing alternative was available after consideration of accused's back- ground and nature of offence. In case of dual status offenders, nei- ther Part XX.1 nor Part XXIV of Criminal Code contains any pro- vision that expressly or implicitly refers to influence of custodial disposition under s. 672.54(c) of Code or supervisory authority ex- ercised by Ontario Review Board on residual discretion provided to sentencing judges. Unless prior NCRMD finding and ongoing supervisory authority of Review Board mandated exercise of dis- cretion against dangerous offend- CASELAW er designation fully supported by evidence, which court was not prepared to conclude, there was no reasonable possibility that conclusion reached here would have been any different had Part XX.1 been taken into account. R. v. Bedard (Sep. 24, 2009, Ont. C.A., Laskin, Blair and Watt JJ.A., File No. C44846) Order No. 009/267/112 (39 pp.). Requirements of s. 754(1)(b) of Criminal Code were met Accused was notified of pros- ecutor's intention to have him declared dangerous offender in open court. Requirements of s. 754(1)(b) of Criminal Code were met. Timely notice of applica- tion, albeit filed in support of request for assessment, outlined factual basis of application and articulated substance of s. 753(1) (a)(i) and (ii) upon which appli- cation was based. Although pros- ecutor's disclosure obligations cannot substitute for notice and outline required by s. 754(1)(b), sentencing judge was required to consider cumulative effect of documents given to accused in context of evidentiary disclosure provided by prosecutor. R. v. Bedard (Sep. 24, 2009, Ont. C.A., Laskin, Blair and Watt JJ.A., File No. C44846) Order No. 009/267/112 (39 pp.). Trial ACCUSED NOT REPRESENTED BY COUNSEL Court appointed amicus curiae Determination as to whether an amicus curiae was to be ap- pointed in this matter. Accused was charged with wounding with a firearm and attempted murder with a weapon. He faced a maxi- mum term of life imprisonment. Accused selected a trial by judge and jury. He represented himself. Court appointed amicus curiae to ensure that the accused received a fair trial. Lawyer with over 20 years' experience, who charged $400 per hour, was appointed at hourly rate of $200. Communi- cations between the accused and amicus curiae were protected by privilege in the same way as those would be in a solicitor-client re- lationship. Accused was not en- titled to discharge amicus curiae. R. v. Clarke (Oct. 1, 2009, Ont. S.C.J., Thorburn J., File No. P43/08; P861/08) Order No. 009/293/038 (9 pp.). Accused permitted to sit at counsel table behind amicus curiae Application by the self-represented accused to sit at the counsel table, allowed. He was allowed to sit at the counsel table located immedi- ately behind the one occupied by the amicus curiae appointed in this matter. He was allowed this right because he needed to refer to the box of documents provided to him by the Crown in order to properly prepare his defence. He would also be able to communi- cate with amicus curiae if he sat near him. Court security officers could sit near the accused and he was not to leave his seat for any reason without leave of the court. If the accused abused any of these privileges or was proven to be a security risk he would be required www.lawtimesnews.com Bestcase-reduce costs (LT 3.875 x 7.375).indd 1 6/10/09 10:43:52 AM to sit in the prisoner's box. R. v. Clarke (Oct. 8, 2009, Ont. S.C.J., Thorburn J., File No. P43/08; P861/08) Order No. 009/293/068 (6 pp.). TAX COURT OF CANADA Taxation INCOME TAX "Capital property step-up strategy" ran afoul of general anti-avoidance rule Appellants were involved in transaction known in tax com- munity as "capital property step- up strategy". Strategy involved shifting of capital property (with accumulated gain) from hus- band to Barbados spousal trust, and in this case, trust then selling property to beneficiary wife, wife selling property to third party purchaser using proceeds to pay off trust, trust then distributing funds to wife as beneficiary and trust then dissolving. Result was no tax, as there was no capital gain taxable in Canada, as there would have been had husband sold capital property directly to third party. Capital gain arises in trust in Barbados where there is no tax on capital gains. Strategy failed on basis that no trust was duly constituted. Certainty of intention and certainty of sub- ject matter were in question and, more significantly, there was no actual transfer of shares. Trust never came into existence. Trust's appeal was therefore quashed. With respect to husband's appeal, with no valid trust he either sold shares to his wife and triggered PAGE 15 gain in his hands or he rolled shares to his wife and had gain at- tributed back to him. Either way, he had been correctly assessed on resulting capital gain, and his ap- peal was dismissed. In event lan- guage of trust deed was sufficient to establish certainty of intention and, notwithstanding lack of transfer of property, peripheral documents were sufficient to es- tablish certainty of subject matter, and lack of de facto discretion by trustee was overridden by de jure discretion as set out in trust deed, this form of avoidance planning ran afoul of general anti-avoid- ance rule. Antle v. Canada (Sep. 18, 2009, T.C.C., Miller J., File No. 2005-1619(IT)G; 2005- 1620(IT)G) Order No. 009/267/004 (58 pp.). Res judicata applied to bar appeal from reassessment Pursuant to judgment Minister reassessed appellant to reduce amount of benefit included in calculation of appellant's income. Appellant sought to offset share- holder loans against benefit ap- pellant received resulting from reassessment in accordance with decision. Minister argued appel- lant was barred from appealing reassessment by res judicata and s. 169(2) of Income Tax Act (Can.). Appeal was dismissed. Res judi- cata applied and appellant was barred from appealing reassess- ment. Shareholder's loan did not constitute new evidence and no serious injustice would be caused by applying res judicata. Coutre v. Canada (Sep. 15, 2009, T.C.C., McArthur J., File No. 2007-2083(IT)G) Order No. 009/274/036 (15 pp.). LT Find the best in… eREPORTS included for no extra charge CANADA LAW BOOK's law reports and case summaries are no longer available on Quicklaw LexisNexis. 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