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Page 18 July 13, 2015 • Law Times www.lawtimesnews.com Act (Can.), existed. Appeal al- lowed. Application of control test determinative. Clients were often not present when work- ers were doing housekeeping. Although work not specialized workers had measure of inde- pendence in how they carried it out. Court not bound by terms of contract where contract did not ref lect realities of situa- tion. Agency contribution to expenses did not occur. Bur- den of proof rested on Minister. Minister failed to establish that workers were under direction and control of agency. Barbeau c. Ministre du Revenu national (May. 22, 2015, T.C.C. [Employment Insurance], Rob- ert J. Hogan J., File No. 2012- 4560(EI), 2013-2811(EI)) 252 A.C.W.S. (3d) 736. Taxation INCOME TAX Favourable income tax consequenc- es did not change nature of gift Taxpayer purported to make gift to city of ecologically sensi- tive property he had purchased from father. Minister assessed taxpayer under Income Tax Act (Can.), for 2009 taxation year, treating transaction as disposi- tion of inventory and including value of land less its original cost as income from business. Taxpayer appealed. Appeal al- lowed. Transaction was chari- table gift. Taxpayer was cred- ible. Taxpayer did not acquire and dispose of land as part of business. No indicia of business existed. Putting land in posses- sion of corporation and taking steps to rezone it did not make venture business. Adventure or concern that involves acquisi- tion of land that is ultimately subject of bona fide charitable donation for no consideration is not adventure or concern in nature of trade. Land had been purchased by taxpayer's father for no reason beyond owning land, and purchased by taxpay- er as pretext to give money to father. Application for subdivi- sion and construction of gravel road were not indication of business, but merely steps taken to protect asset. Taxpayer did not have primary intention to purchase land, and whether de- velopment of land was second- ary purpose was unclear and not carried out. Favourable in- come tax consequences did not change nature of gift. Transac- tion was gift subject to capital gain deemed to be zero. Staltari v. R. (May. 13, 2015, T.C.C. [General Procedure], John R. Owen J., File No. 2013- 1038(IT)G) 252 A.C.W.S. (3d) 863. ONTARIO CRIMINAL CASES Appeal SENTENCE APPEAL Parity principle does not require that all co-accused receive equal sentences Accused appealed from his sentence of 12 months' incar- ceration followed by 12 months' probation imposed on convic- tion for possession of over three kilograms of marijuana for purpose of trafficking. Leave to appeal granted; appeal dis- missed. Parity principle does not require that all co-accused receive equal sentences. It was not court's function to mi- nutely reassess relative roles and culpability of various of- fenders. Sentencing judge in this case expressly considered parity principle and recognized it would tend to drive quantum of sentence down. Sentencing judge also considered whether conditional sentence was ap- propriate for accused. Sentence was well within range and in absence of error of principle in sentencing judge's analysis, there was no basis to interfere. R. v. Lin (May. 4, 2015, Ont. C.A., R.G. Juriansz J.A., Paul Rouleau J.A., and C.W. Hou- rigan J.A., File No. CA C58717) 121 W.C.B. (2d) 216. Disclosure DUTY ON CROWN Jury rolls likely relevant to attribution of delay Accused challenged representa- tiveness of jury pools. Accused sought disclosure of jury rolls for preceding year. Applica- tion for disclosure granted. Jury rolls were third party records outside control of prosecution. Jury rolls were likely relevant to attribution of delay for s. 11(b) Charter application that will ul- timately be brought by accused and should be disclosed. R. v. Madahbee-Cywink (Jul. 25, 2014, Ont. S.C.J., Varpio J., File No. 12-0003, 12-0034, 13-0003, 13-0013, 13-0018, 13-0025) 121 W.C.B. (2d) 248. Evidence CONFESSIONS AND ADMISSIONS That accused clearly of operat- ing mind most strongly illustrated with his negotiation for cigarette Accused charged with first- degree murder in which Crown alleged that murder was planned and deliberate and in- cluded torture, stabbing, burn- ing, blunt force trauma and dis- memberment. Crown wished to enter into evidence videotaped statements accused made dur- ing police interview following his arrest. Accused claimed he was exhausted at outset of 5.5 hour interview, to point he was hearing auditory hallucina- tions, that accused repeatedly asserted his right to silence, and pointed out that interview only ended when accused became so frustrated he threatened to smash something. During course of videotaped interview, accused made number of con- fessions and also stated many times that he did not wish to speak to police. Confessions or indirect confessions were numerous and significant. In- terview statements admissible. Court did not find that fact that accused asserted his right to remain silent 29 times was automatically determinative of breach of s. 7 or issue of volun- tariness. Videotaped statement showed that detective was cour- teous and respectful to accused at all times. Detective provided accused with food, drinks, op- portunity to go to bathroom and speak to his lawyer in pri- vate. Detective did not raise his voice at accused nor did he try to persuade him to talk based on false information, or promise of reduced or different charges. Detective was clearly attempting to ingratiate himself with accused so accused would feel comfortable and likely pro- vide information to him as re- sult which was accepted inves- tigative technique. While it may have been preferable to re-read both cautions, court did not find it to be fatal to Crown's ap- plication. Accused clearly knew that he was being recorded both on arrest and during interview. Accused, while not sophisti- cated in criminal world, was experienced. Within five min- utes of hearing caution and acknowledging he understood, accused acted upon it by stat- ing he did not wish to speak on record. Accused understood he had right to remain silent but chose to speak to detective of his own free will and not- withstanding possible implica- tions of speaking to police. Ac- cused, despite protesting that he needed sleep, told detective if he brought accused cigarette, they might be able to talk more. Notwithstanding his body lan- guage and protests about sleep, accused was well aware of what was going on and what quid pro quo was for cigarette. Accused chose which questions he want- ed to answer and which ones he did not. Accused was clearly of operating mind most strongly illustrated with his negotiation for cigarette. R. v. Martineau (Apr. 20, 2015, Ont. S.C.J., C.A. Gilmore J., File No. Newmarket 12-00002982) 121 W.C.B. (2d) 231. Hearsay Necessity criterion for admission sat- isfied despite availability of witnesses Accused convicted of man- slaughter and arson. Accused alleged to have instigated ar- son of his hardware store in which one arsonist died. Crown tendered evidence of hearsay statements of alleged co-con- spirators that motive for arson was for accused to collect insur- ance. Appeal from conviction dismissed. Necessity criterion for admission satisfied despite availability of witnesses. Post- offence statements were admis- sible as made in furtherance of continuing conspiracy to de- fraud insurance company. R. v. Magno (Feb. 17, 2015, Ont. C.A., Doherty J.A., John Laskin J.A., and C.W. Hourigan J.A., File No. CA C54361) Decision at 97 W.C.B. (2d) 405 was af- firmed. 121 W.C.B. (2d) 312. RES GESTAE Statements made in police cruiser and at station not admitted as res gestae Application by accused for order to allow into evidence statements made by him to two police officers named P and C. Accused's statements to P were made when P physically restrained and arrested him. His statements were made to C when he drove accused to po- lice station. C repeatedly told accused not to say anything while en route to station but accused repeatedly pleaded his innocence. Accused also made statements at station. Accused sought to have statements ad- mitted for their truth pursuant to doctrine of res gestae and as evidence of his reaction, de- meanour and emotional state. Application allowed in part. Arrest statements were admit- ted as res gestae. Evidence sup- ported conclusion that virtually immediately upon gun being located by P near accused, ac- cused proclaimed that it was not his. Statements made in po- lice cruiser and at station were not admitted as res gestae for they were made after accused was handcuffed, formally ar- rested, given his rights to coun- sel, cautioned and left alone for 10 minutes to sit and contem- plate his situation in cruiser before he was driven to station. These factors severed temporal and logical connection between events that inspired original utterances, namely arrest state- ments, and those that followed. However, these statements could be admitted as evidence of reaction of accused to ac- cusation and as proof of con- sistency, provided that accused took stand to give evidence. R. v. Tavares (Apr. 21, 2015, Ont. S.C.J., Douglas J., File No. CR- 13-225) 121 W.C.B. (2d) 257. Murder FIRST DEGREE MURDER Properly instructed jury could not reasonably find accused guilty of constructive first degree murder Application by Crown for trial judge to provide certain in- structions to jury regarding first degree murder charges that ac- cused AB and JH were charged with. AB acknowledged that he shot victim and caused his death. He claimed that he acted in self-defence. Crown claimed that killing was planned and deliberate and jury had to be instructed on planned and de- liberate first-degree murder re- garding AB and JH. It was also submitted that there was alter- native route to first degree mur- der as it pertained to AB. Jury could find AB guilty of first degree murder if they conclud- ed that he criminally harassed victim by threatening him with death and then shot him in course of that criminal harass- ment. Application allowed in part. Properly instructed jury could not reasonably find ac- cused guilty of constructive first degree murder while com- mitting criminal harassment on evidence in this case. Victim was not harassed. There was no basis for concluding that AB must have known or was reck- less that he was being harassed and AB and victim were strang- ers to each other before inci- dent that resulted in victim's death and one threat between strangers was not threatening conduct. Accordingly, in charge to jury they could only be in- structed that they could return conviction for first degree mur- der only if they found that re- quirements for second degree murder had been met, and they were further satisfied beyond reasonable doubt that killing of victim had been both planned and deliberate. R. v. Burnett (May. 8, 2015, Ont. S.C.J., Molloy J., File No. 14-7- 0000132-0000) 121 W.C.B. (2d) 313 Provincial Offences Reasonable inference that amendment or change was made after service on accused Court heard two appeals where accused never showed up at hearing as in each case there was discrepancy between short form description of Highway Traffic Act (Ont.) ("HTA") of- fence accused was alleged to have committed and section number of HTA. Discrepancies appeared on face of certificates of offence and in one case sec- tion number originally entered had been struck out and new and correct section number en- tered and initialled. Appeal al- lowed, convictions quashed. It was reasonable inference that in one case amendment or change was made after service on ac- cused. Court also noted that Crown conceded that certifi- cates of offence, while complete, were not "regular" on their face as required by Provincial Of- fences Act (Ont.). R. v. Farah (Apr. 29, 2015, Ont. C.A., David Watt J.A., S.E. Pep- all J.A., and M.L. Benotto J.A., File No. CA C57186, C57187) 121 W.C.B. (2d) 270. Sentence WEAPONS OFFENCES Exemplary sentence was neces- sary, even for first offender Accused sentenced to three years' imprisonment, less 15 days' credit for time spent in pre-sentence custody and four and one-half months' credit for time spent on house arrest, following guilty plea to pos- session of loaded prohibited firearm. Following car crash, accused exited passenger side of vehicle and threw loaded semi-automatic handgun into nearby grassy area. Accused was 23 years old and had no criminal record. Accused had high school education and had been employed in past. Accused had some community support and had completed 60 hours or more of community service since offence. Principles of gen- eral deterrence, denunciation, CASELAW

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