Law Times

Law Times • June 11, 2012 and verdict was unreliable. R. v. Lam (Feb. 23, 2012, Ont. S.C.J., Kelly J., File No. SCA 199/09) 100 W.C.B. (2d) 4 (6 pp.). Breathalyzer REFUSAL TO PROVIDE SAMPLE Arresting officer amply justified in believing that accused' Trial of accused for impaired driving and for failing to provide breath sample. Crown' drive impaired by alcohol events was accepted as accused's s version of recollection of events was unreli- able and she was not credible. Accused sideswiped another car. When both cars stopped accused was loud and rude in her deal- ings with other driver. Pedestrian smelled alcohol on her breath. Accused exchanged information with other driver and drove away without waiting for police. Just before she drove away police offi- cer saw two cars and he followed accused. When accused pulled over she yelled at officer and she demanded to know why she was stopped. Officer saw that she was impaired and he arrested her. Accused continued to be aggres- sive when she was informed of her right to counsel and when she was given breath demand. She was given amount of opportunities to pro- vide breath sample but she failed to do so. Accused convicted of both offences. Her ability to drive was impaired by alcohol. Police acted reasonably and fairly when they attempted to obtain proper samples. Technician was justified in refusing to give accused anoth- er chance to blow because there was no indication that she would have provided sample. Accused was faking and she knew she was doing so. Accused' s. 8 of Canadian Charter of Rights and Freedoms were not violated. There was no unlawful search or seizure. Based on her conduct arresting officer was amply justi- fied in believing that accused' s rights under ability to drive was impaired by alcohol. Her rights under s. 7 of Charter were not violated. There was no evidence that accused' decision to not provide suitable sample was influenced by offi- cer' s s decision to shield instru- ment's screen from her. R. v. Grant (Mar. 15, 2012, Ont. C.J., Schwarzl J., File No. 10-17602) 100 W.C.B. (2d) 51 (12 pp.). Charter of Rights Accused charged with impaired driving and "over 80". Accused applied for stay of proceedings based on breach of s. 9 Charter rights. Accused was served with documentation and was released unconditionally on promise to appear just over five hours later. Accused was belligerent and drunk. Police were aware that accused had no criminal record, no outstanding charges, and that ARBITRARY DETENTION OR IMPRISONMENT Accused failed to demonstrate that post-offence detention arbitrary considerable s ability to his motor vehicle had been seized and towed. Police were aware that accused' CASELAW to station. Application dismissed. Five hour period of detention was not long enough to establish prima facie s. 9 Charter breach. Detention was of modest dura- tion and Crown was not required to provide explanation. There were numerous factors that mili- tated against immediate release, including that accused was vola- tile and belligerent, insisted that he did not understand what was going on, and that it was not clear that there was respon- sible person willing to pick him up. There was no evidence that accused' s father was coming tion or what happened after his arrival. Consideration was taken for accused' s father ever entered sta- to prevent repetition of offence. Accused was not detained for improper purpose. Accused failed to demonstrate that his post-offence detention was arbi- trary. R. v. Baxter Ont. C.J., Schwarzl J., File No. 10-2252) 100 W.C.B. (2d) 50 (37 pp.). (Feb. 7, 2012, Evidence CONFESSIONS AND ADMISSIONS Accused' s Application by Crown for order to establish that videotaped and sworn statement that accused made to police was voluntarily made. Accused was charged with three counts of robbery for three bank robberies that occurred in January 2010. Statement was made to police officer in differ- ent investigation in May 2008. Crown also sought to admit offi- cer' oral evidence regarding his knowledge of and dealings with accused. Statement was given by accused when he was arrested for several bank robberies that were committed by his father. Officer told accused he could return to his cell and say nothing further and by so doing he would remain under actions not sufficiently probative to outweigh prejudicial effect s knowledge of his father's he could make statement and become witness for prosecu- tion against his father. Accused immediately chose to become Crown witness and in statement he detailed techniques used by his father to commit robberies. Crown' arrest. Alternatively, used some of these methods in robberies for which he was being charged. Application dis- missed. Crown failed to prove that statement was voluntarily made. Threat of arrest for rob- bery charges versus being witness against his father in exchange of removal of any jeopardy was inducement that rendered state- ment inadmissible. Furthermore, acts sought to be admitted were not unique enough for there to be high degree of similar- ity between father' s theory was that accused in robbing banks and those of accused. Accused' his father's actions were not suf- ficiently probative to outweigh s methodology s knowledge of s safety and desire prejudicial effect of introduc- ing this evidence. Prejudice to accused could not be resolved by editing statement. Officer could testify about his knowledge of accused provided that he did not testify that accused was first accused and then witness to his father' R. v. Fawcett (Feb. 14, 2012, Ont. S.C.J., Warkentin s bank robberies. 10-10425) 100 W.C.B. (2d) 37 (20 pp.). Motor Vehicles IMPAIRED DRIVING AND "OVER 80" Height and weight not relied upon by expert in order to give opinion Accused's first breath test was J., File No. taken more than two hours after driving. Expert testified that accused' tration at time of driving was between 176 and 223mg of alco- hol in 100ml of blood. Expert' s blood alcohol concen- opinion rested on assumed rate of elimination, two hour plateau, no consumption of alcohol after accused' s cant consumption of alcohol just prior to driving. No evidence was led as to how much alcohol accused actually drank, when he started to drink, or when he fin- ished drinking. Accused did not consume any alcohol while in police custody. Accused argued there was no reliable evidence of his height and weight, and that Crown did not disprove bolus drinking. Accused found guilty. Officer made mental compari- son between known height and weight of his father and size of accused and found them to be very similar. Accused appeared to be height and weight stated by officer. There was reliable evidence of accused' s arrest, and no signifi- weight. Height and weight were not relied upon by expert order to give opinion of blood alcohol concentration at time of driving. There was common sense inference that normal peo- ple do not ingest large amounts of alcohol shortly before getting into their car and driving. In cir- cumstances, bolus drinking was not in play. Crown disproved bolus drinking. Expert' s height and in ion regarding accused's blood s opin- alcohol concentration at time of driving was based on proven assumptions. Crown proved beyond reasonable doubt that accused operated motor vehicle with blood alcohol concentra- tion well in excess of legal limit. R. v. Baxter Ont. C.J., Schwarzl J., File No. 10-2252) 100 W.C.B. (2d) 50 (37 pp.). (Feb. 7, 2012, TAX COURT OF CANADA Taxation GOODS AND SERVICES TAX Application by registrant for order that request for extension be deemed valid. Registrant was Registrant had attitude of indifference or negligence toward tax obligations www.lawtimesnews.com status Indian who operated con- venience store and gas station on reserve. Mother of registrant operated facility. Registrant did not file quarterly returns for provincial sales tax and GST as required. Auditor for Revenu Quebec sent requirement to pro- vide documents in 2009. Revenu Quebec began assessment pro- ceedings in 2009. Garnishment orders were issued. Registrant sought to become involved in existing proceedings in Quebec Superior Court regarding liabil- ity for taxes by persons in simi- lar circumstances. In May 2010, registrant brought application to extend time to file objection to notice of assessment, which was rejected. Application dismissed. Aboriginal rights of registrant were not violated. Excise Tax Act (Can.), only required col- lection and remittance of GST and did not impose tax on those with Indian status. Section 87 of Indian Act (Can.), does not release individuals with Indian status from obligation to col- lect and remit GST when they are selling goods in commercial mainstream to non-Indian con- sumers. Illness did not prevent registrant and mother from filing objection. Business still operated during relevant period. Attempt to join proceedings in Quebec Superior Court did not show bona fide intention to object to assessment in current pro- ceedings, and were not under- taken within 90 days of notice of assessment. Registrant' tion was prompted by demands for payment and garnishment orders. Registrant had attitude of s reac- towards legal tax obligations. Diome v. Canada (Feb. 15, 2012, T.C.C., Angers J., File No. 2011- 307(GST)APP) 212 A.C.W.S. (3d) 1059 (11 pp.). indifference or negligence INCOME TAX Practice of dealing in cash Appeals by taxpayers from reas- sessments by Minister under Income Tax Act (Can.), for 2003 and 2004 taxation years. Taxpayers filed income tax returns under Act for 2003 and 2004 taxation years. Taxpayers claimed various amounts in respect of taxpayers' real estate business for advertising, profes- sional dues, phone, parking, cli- ent incentives, gifts for referrals, client meals and office supplies. Minister and not keeping records left too many gaps in evidence disallowing various expenses. Main basis for Minister' sion was insufficiency of sup- porting documentation and dubious quality of such docu- ments as were eventually pro- duced at audit and objection stage. Appeals allowed in part. Reassessments were referred back to Minister for reconsid- eration and reassessment only to extent contemplated by Minister' reassessed taxpayers, s deci- conceded certain amounts in relation to advertising, profes- sional dues, phone, third-party payments, meals, supplies and s concessions. Minister PAGE 15 parking. Taxpayers were not entitled to more than amounts conceded by Minister. Taxpayers' failure to keep proper books and records coupled with practice of dealing in cash made it impos- sible to prove claims. No expla- nation was given for not having kept records. Practice of dealing in cash and not keeping records left too many gaps and unan- swered questions in evidence. Considered against this back- drop, concessions presented by Minister at hearing were more than fair. Hafizy v. Canada (Feb. 16, 2012, T.C.C., Sheridan J., File No. 2009- 1160(IT)G; 2009-1159(IT)G; 2009-1148(IT)G) 212 A.C.W.S. (3d) 1070 (13 pp.). Appeal by taxpayer from deci- sion by Minister determining that taxpayer was overpaid Child Tax Benefit ("CTB"). Taxpayer and father were divorced par- ents of child. Taxpayer had pri- mary residence of child and was receiving CTB. At end of December 2009, child went to visit father and did not contact taxpayer for two weeks. At end of January, father brought appli- cation to have child' Child did not have settled and usual abode with taxpayer during period residence changed to his resi- dence. Taxpayer and father both filed notice under s. 122.62(1) of Income Tax Act (Can.). Minister notified taxpayer that she was entitled to CTB dur- ing six-month period in 2010, but later notified taxpayer that entitlement to CTBs had been re-determined and that taxpayer was overpaid CTBs for February 2010 to June 2010, because tax- payer was no longer child' s primary mary caregiver as of February 2010. Appeal dismissed. As child was not residing with taxpayer at beginning of any month during period, taxpayer was not "eligible individual" under s. 122.6 of Act. While child spent several con- secutive days with taxpayer in February, took some trips with taxpayer and likely spent some nights at taxpayer' s pri- od, child did not have settled and usual abode with taxpayer or live with taxpayer regularly during period. Taxpayer' s during peri- ments and R.E.S.P. contributions on child' s tuition pay- that child was residing with tax- payer. Taxpayer' chase of clothing and food for child and payments of expenses during trips were insufficient to support finding that child was residing with taxpayer in any month during period. Although two assumptions Minister relied on were not proper assump- tions of fact, taxpayer was noti- fied that issue was whether child was residing with taxpayer and taxpayer appeared to understand that issue and whether taxpay- er was primary caregiver were issues in appeal. Nadalin v. Canada (Feb. 13, 2012, T.C.C., Webb J., File No. 2011- 1798(IT)I) 212 A.C.W.S. (3d) 1078 (19 pp.). s behalf did not establish s occasional pur- LT

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