Law Times

Law Times • OcTOber 5, 2015 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Constitutional Law CHARTER OF RIGHTS Appellant was not person "charged with an offence" and not entitled to protec- tions under s. 11 of Charter Section 163.2 of Income Tax Act imposes monetary penal- ties on every person who makes false statement that could be used by another person for purpose of act. Appellant was assessed substantial penalties under s. 163.2(4) in respect of false statements made by her in donation receipts issued by her on behalf of charity. Minister of National Revenue claimed appellant knew or would rea- sonably be expected to have known statements could be used by taxpayers to claim un- warranted tax credit. Appellant argued she was person "charged with an offence" because penal- ty imposed under s. 163.2(4) is criminal. She claimed she was therefore entitled to procedural safeguards provided for in s. 11 of Canadian Charter of Rights and Freedoms. Her appeal of Minister's assessment to Tax Court of Canada was allowed despite fact she did not raise any Charter issue in her notice of appeal nor did she provide notice of constitutional ques- tion to attorneys general as re- quired by s. 19.2 of act. Federal Court of Appeal set aside Tax Court's decision and restored assessment. Appellant's appeal dismissed. This court has nar- row discretion to address mer- its of constitutional issue when it receives proper notice of constitutional questions even though issue was not properly raised in courts below. Discre- tion ought to be exercised in this case. Proceedings under s. 163.2 of act are not criminal in nature and do not lead to imposition of true penal con- sequences. Appellant was not person "charged with an of- fence" and not entitled to pro- tections under s. 11 of Charter. Proceedings under s. 163.2 are of administrative nature. Pro- cess does not bear traditional hallmarks of criminal proceed- ing. True penal consequence is imprisonment or fine. Mon- etary penalty may be true penal consequence when it is, in pur- pose or effect, punitive. Penal- ties assessed against appellant, however, ref lect objective of de- terring conduct of type she en- gaged in. In signing charitable tax receipts, she chose to rely on her own legal opinion which she knew to be incomplete. Tax Court found her conduct was indicative either of complete disregard of law or of wilful blindness. Guindon v. R. (Jul. 31, 2015, S.C.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Kara- katsanis J., Wagner J., and Gas- con J., File No. 35519) Decision at 228 A.C.W.S. (3d) 94 was af- firmed. 256 A.C.W.S. (3d) 78. FEDERAL COURT OF APPEAL Elections CONTROVERTED ELECTIONS Application contesting federal election results untimely Appellant contested May 2011 federal election results in rid- ing of Guelph, Ont. Respondent brought motion for summary dismissal. Prothonotary's Sep- tember 2013 decision dismissed appellant's application under s. 524 of Canada Elections Act. Appellant could not establish that voter suppression efforts impacted outcome or integrity of election. Application was un- timely under s. 527 of act. April 2014 decision dismissed appeal from September 2013 decision. Appeal was untimely. Appel- lant appealed April 2014 deci- sion. Appeal dismissed. Appel- lant should have known about activity underlying application by March 29, 2012. Chief elec- toral officer's testimony then entered public domain. That appellant did not actually know information because on remote island on that date did not re- quire different result. Applica- tion was not commenced until June 26, 2012, beyond 30-day time limit under act. Klevering v. Canada (Attorney General) (Jun. 23, 2015, F.C.A., C. Michael Ryer J.A., Wyman W. Webb J.A., and Donald J. Rennie J.A., File No. A-232-14) 256 A.C.W.S. (3d) 114. FEDERAL COURT Criminal Law PRISONS Minister did not consider com- peting factors regarding public safety on transfer application Applicant was Canadian citi- zen incarcerated in Ohio. Ap- plicant pleaded guilty and was sentenced to 10 years for at- tempting enticement of minor to engage in sexual activity. Ap- plicant had moved to United States to pursue relationship with American citizen who was now his ex-wife. Applicant had brother and sister in Canada. Applicant applied for transfer to Canada to serve remainder of sentence. Respondent min- ister denied applicant's request for transfer of sentence pursu- ant to International Transfer of Offenders Act. Minister found that transfer would not contrib- ute to administration of justice, including public safety, in Can- ada or to applicant's effective reintegration into community. Applicant applied for judicial review. Application granted. Standard of review was reason- ableness. Minister's decision appeared to rely on community assessment report and did not consider clearly competing fac- tors outlined in memorandum to minister and Correctional Service Canada summary. Minister stated transfer would not contribute to public safety but there was clear evidence to contrary. Minister did not consider contrary position that public safety in Canada might be enhanced by applicant's transfer. There was no weigh- ing of evidence. Correctional Service Canada summary and memorandum did not contain statement regarding rehabilita- tion programs available to ap- plicant in United States. There was lack of consideration of competing factors by minis- ter and it was not clear how he arrived at decision and why strong evidence in favour of transfer was rejected. Some of minister's findings were direct- ly contradictory to what was stated in memorandum and summary. Minister must en- gage in process of considering and weighing of evidence. Ap- plication was remitted to min- ister for reconsideration. Tosti v. Canada (Minister of Public Safety and Emergency Preparedness) (Jun. 12, 2015, F.C., Glennys L. McVeigh J., File No. T-2132-13) 256 A.C.W.S. (3d) 104. ONTARIO CIVIL CASES Civil Procedure AFFIDAVITS Applicant granted permission to cross-examine affiants in rela- tion to preservation motion Police executed search warrant at residence of K and seized $17,700 Canadian in cash from vehicle parked in garage. Vehicle was registered to H. During criminal proceedings, K's lawyer advised court that money seized belonged to K. Crown withdrew drug traffick- ing charges against K. Lawyer then met with civil remedies for illicit activities office that he now represented H as well and that $17,700 belonged to H not K. Lawyer served application pursuant to s. 490 of Crimi- nal Code requesting $17,700 seized from K's residence be released to H and return or- der was obtained. Applicant brought application for forfei- ture of $17,700 pursuant to Civ- il Remedies Act and brought preservation motion. H had new lawyer who responded to preservation motion. H's ma- terials included affidavit sworn by former lawyer. Appended as exhibit to former lawyer's affi- davit was copy of s. 490 applica- tion record that included affi- davits of H, K and H's husband V. Applicant brought motion to compel cross-examination of deponents of exhibit affida- vits. Motion granted. H was not named as respondent but she had interest in money and in preservation motion. H was party with adverse interest and her affidavit was essential part of civil application. H could be cross-examined on her af- fidavit, which was appended to former lawyer's affidavit. Since new lawyer took step of filing exhibit affidavits, applicant had right to cross-examine on them. Court exercised its discretion to allow cross-examination of H, K and V on exhibit affida- vits. Exhibit affidavits were not spent. This was not collateral attack against order made in s. 490 application. Applicant had to be able to meet case on mer- its and that must include ability to cross-examine on exhibit af- fidavits. Applicant was able to cross-examine deponents on any affidavit filed in proceed- ing, including exhibit affida- vits. Ontario (Attorney General) v. $17,700.00 in Canadian Curren- cy (In Rem) (Jul. 3, 2015, Ont. S.C.J., Kershman J., File No. Picton 15-0175) 256 A.C.W.S. (3d) 27. COMMENCEMENT OF PROCEEDINGS Use of civil action to initi- ate collateral attack on final decision in criminal court was abuse of process Plaintiff and common law part- ner had one child. Common law partner made complaints against plaintiff. Plaintiff as- serted police acted improperly in their review of allegations against him, his arrest, charges against him, and subsequent tri- als. Plaintiff asserted informa- tion communicated by police to Children's Aid Society was false and biased against him. Al- legations against police defen- dants extended over 17 years. Police defendants brought mo- tion for summary judgment. Motion granted. Proceeding against police defendants was dismissed. Affidavits did not contain material facts on which plaintiff relied in support of claims. All action or inactions of police defendants including police investigations, police notes, arrest and detention of plaintiff and laying of criminal charges prior to specified date were statute barred by s. 7 of Public Authorities Protection Act and s. 4 of Limitations Act, 2002 and could not form basis of civil action. Absence of evi- dence and negative disposition as to charges laid eliminated charges as basis of claim for malicious prosecution. Plaintiff failed to meet evidentiary onus to support breaches of his rights under Charter. Plaintiff did not plead material facts or present evidence to support bald alle- gations that police defendants failed to meet standard of care. Claims of false arrest, false im- prisonment and absence of rea- sonable and probable grounds were dismissed. Claims against negligence investigation were dismissed because plaintiff presented no evidentiary basis. Withdrawal of criminal charg- es or absence of conviction did not lead to conclusion that po- lice defendants lacked reason- able and probable grounds. Use of civil action to initiate collat- eral attack on final decision in criminal court was attempt to re-litigate issue already deter- mined and was abuse of pro- cess. Plaintiff had no triable is- sue in relation to his complaints to police regarding common law partner. Police defendants owed no private law duty of care to victims of or to complainants in relation to investigation of alleged crime. Plaintiff had no cause of action against police defendants for their reporting of suspected emotional harm of child to Children's Aid Society. Arguments as to invalidity of search warrant could have been presented at trial leading to conviction and plaintiff could not now seek determination of invalidity of search warrant. Fragomeni v. Greater Sudbury Police Service (Jul. 14, 2015, Ont. S.C.J., Kane J., File No. Sudbury C-2835-13) 256 A.C.W.S. (3d) 34. Contempt Of Court APPEAL Evidence justified finding of con- tempt beyond reasonable doubt Parties had five-year-old daughter. Father brought con- tempt motion alleging mother failed to comply with terms of temporary access order. Motion CASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164.

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