Law Times

Page 14 May 15, 2017 • Law TiMes www.lawtimesnews.com CASELAW Supreme Court of Canada Criminal Law CHARTER OF RIGHTS AND FREEDOMS Charter remedies [s. 24] Police entry into accused's residence was not justified by exigent circumstances Officers saw handguns and drugs in plain view after be- ing invited into apartment, and obtained search warrant. Trial judge concluded that police had grounds to obtain search war- rant and since it was impracti- cable to obtain search warrant exigent circumstances under s. 11(7) of Controlled Drugs and Substances Act existed. Accused was convicted of possession of drugs, possession for purpose of trafficking, and unlawful pos- session of firearms. Accused's appeal on ground that trial judge erred in admitting evidence was dismissed. Accused appealed to Supreme Court of Canada. Ap- peal allowed. Police entry into the accused's residence not jus- tified by exigent circumstances making it impracticable to ob- tain warrant. Nature of Charter- infringing state conduct was sufficiently serious to favour exclusion of evidence obtained as a result. Importance of en- suring that such conduct is not condoned by court favoured exclusion. If situation was not serious enough to arrest and ap- ply for warrant, then not serious enough to intrude into private residence without warrant. R. v. Paterson (2017), 2017 CarswellBC 687, 2017 Car- swellBC 688, 2017 SCC 15, 2017 CSC 15, McLachlin C.J.C., Abel- la J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Brown J. (S.C.C.); reversed (2015), 2015 CarswellBC 1256, 2015 BCCA 205, Lowry J.A., Frankel J.A., and Bennett J.A. (B.C. C.A.). POST-TRIAL PROCEDURE Release pending appeal Bail pending appeal for person convicted of murder was not restricted by Parliament Accused was convicted of sec- ond degree murder of his fa- ther. Appeal judge dismissed accused's application for release pending his appeal under pub- lic interest criterion in s. 679(3) (c) of Criminal Code. Court of Appeal review panel dismissed accused's application for review under s. 680(1) of Code and found no material error or un- reasonableness in appeal judge's decision. Accused appealed. Ap- peal allowed. Appeal was heard on merits despite mootness. Guidance was given on public interest criterion and on stan- dard of review by review panel. Detaining accused on public in- terest criterion was unwarranted in circumstances. Appeal judge made material legal error that af- fected outcome, and review pan- el erred in failing to intervene. Aside from seriousness of of- fence, accused presented as ideal candidate for bail. Parliament did not restrict availability of bail pending appeal for persons convicted of murder. Appeal judge found that there were no public safety or f light risk con- cerns and that grounds of appeal were arguable. Appeal judge overlooked important finding made by trial judge, that ac- cused's crime gravitated toward offence of manslaughter, which reduced his degree of moral blameworthiness, attenuating seriousness of crime and en- forceability interest. Cumulative effect of considerations favoured release. Appeal judge erred by not applying correct test of "not frivolous" in assessing strength of accused's appeal by wanting something more than clearly arguable grounds of appeal. R. v. Oland (2017), 2017 Car- swellNB 115, 2017 CarswellNB 116, 2017 SCC 17, 2017 CSC 17, McLachlin C.J.C., Abella J., Mol- daver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellNB 126, 2016 CarswellNB 127, 2016 NBCA 15, J. Ernest Drapeau C.J.N.B., M.E.L. Larlee J.A., and Kathleen A. Quigg J.A. (N.B. C.A.). Federal Court of Appeal Tax INCOME TAX Administration and enforcement Judge held that Rule 58 hearing should not be used as substitute for full hearing Determination of question. Minister of National Revenue issued reassessments against taxpayer for taxation years 2000 through 2007 outside normal re- assessment periods in relation to taxpayer's reporting of income and loss from foreign currency trading activities. Taxpayer's appeal involved issue relating to possibility of reassessments being statute-barred. Taxpayer brought motion, pursuant to R. 58 of Tax Court of Canada Rules (General Procedure), for determination of question of whether taxpayer's report- ing was attributable to neglect, carelessness, or wilful default within meaning of s. 152(4)(a)(i) of Income Tax Act. Tax Court judge dismissed motion and concluded that issue of whether reassessments were statute- barred (statute-barred issue) should be decided in course of trial and not on preliminary basis. Judge found that it would be difficult to address question of misrepresentation in returns, and whether it was attributable to neglect, carelessness or wil- ful default, without full hearing that addressed all issues raised in pleadings. Judge held that Rule 58 hearing should not be used as substitute for full hearing simply because evidentiary issues could be addressed in order. Taxpayer appealed. Appeal dismissed. Judge made no reversible error in dismissing motion. There was no palpable and overriding er- ror in concluding that taxpayer's suggested approach to evidence would not provide fair and just adjudication of statute-barred issue. It was open to judge to conclude that proceeding under R. 58 of Rules would not be ap- propriate. Paletta v. R. (2017), 2017 Car- swellNat 567, 2017 FCA 33, Pelle- tier J.A., Rennie J.A., and Judith M. Woods J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 3148, 2016 TCC 171, John R. Owen J. (T.C.C. [General Procedure]). Combination of errors led Tax Court judge to strike affidavit absent justification C Co made settlement offer which included schedule of C Co's losses. Counsel commu- nicated over period of approxi- mately eight months in course of which various matters were finalized. They concluded min- utes of settlement which incor- porated schedule. In January 2015, counsel advised Tax Court of Canada that they had reached settlement and were awaiting issuance of notices of reassess- ment to implement settlement agreement. Shortly thereafter, counsel for Minister of National Revenue advised that Minister was having difficulty imple- menting minutes of settlement and in February 2015, Minister's counsel advised that Minister determined that there were no non-capital losses available to C Co and that Minister could not issue reassessment that was contrary to provisions of In- come Tax Act. Following case management proceedings in Tax Court of Canada, counsel for C Co filed notice of motion and supporting affidavit seek- ing to have settlement enforced. Deponent was lawyer in C Co's counsel's firm and affidavit set out events leading up to filing of motion by reference to series of documents which were made exhibits to the affidavit, together with references to small number of contacts between counsel. Counsel for Minister cross-ex- amined lawyer on her affidavit and lawyer and counsel for C Co took position that lawyer was not at liberty to disclose any in- formation on basis of privilege. Lawyer would not confirm or deny existence of losses claimed in schedule or whether or not she was counsel for C Co. Min- ister moved successfully to have affidavit struck. C Co appealed. Appeal allowed. Tax Court judge erred in principle in con- cluding prematurely that con- tents of affidavit were tendered in proof of their contents. This error led to further errors as to scope of cross-examination of lawyer on her affidavit and ap- propriateness of her affirming her affidavit. Combination of errors led Tax Court judge to strike affidavit absent justifica- tion, which was palpable and overriding error. CBS Canada Holdings Co. v. R. (2017), 2017 CarswellNat 1315, 2017 FCA 65, J.D. Denis Pelletier J.A., Donald J. Rennie J.A., and J. Woods J.A. (F.C.A.); reversed (2016), 2016 Carswell- Nat 1104, 2016 TCC 85, K. Lyons J. (T.C.C. [General Procedure]). 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 WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an Enhanced listing. ENCHANCE YOUR LISTING TODAY! Untitled-4 1 2017-05-09 8:56 AM

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