Granted (1)
Criminal Law: Admissibility of Witness Statement
R. v. Tessier, 2020 ABCA 289 (39350)
A man’s body was found in a ditch. He had died from gunshot wounds to the head. Police investigating the murder began establishing a victimology and determining the victim’s movements before he was shot. Police ascertained Mr. Tessier was a friend and business associate of the victim. They asked Mr. Tessier for an interview. Mr. Tessier was interviewed twice by police. Police later testified Mr. Tessier was viewed and treated as a witness and not a suspect. The second interview was followed by a voluntary trip to his apartment, at Mr. Tessier’s suggestion, to show the officer where his gun was stored. The officer testified Mr. Tessier only became a suspect and was cautioned at the apartment when it was determined his gun was missing. Mr. Tessier challenged the admissibility of his statements to the police during the interviews on the basis they were obtained in breach of ss. 7, 10(a) and 10(b). They were admitted into evidence. A jury convicted Mr. Tessier of first degree murder. The C.A. allowed an appeal and ordered a new trial. “The application for leave to appeal…is granted.”
Dismissed (8)
Constitutional Law: Anti-Spam Legislation
3510395 Canada Inc. v. Canada (Attorney General), 2020 FCA 103 (39396)
Canada’s anti-spam legislation came into force in 2014: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio‑television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23 (CASL). It provided for the regulation of certain forms of commercial conduct relating to e‑commerce, most notably the sending of commercial electronic messages (CEMs). The Applicant, 3510395 Canada Inc. was issued a Notice of Violation (NOV) under CASL alleging it had not obtained recipients’ consent prior to sending the CEMs in question. The NOV also alleged some of the CEMs did not contain a functioning “unsubscribe” link. The NOV imposed a $1,1M administrative monetary penalty. Two related constitutional and compliance and enforcement decisions of the Canadian Radio‑Television and Telecommunications Commission were issued. The CRTC determined the CASL was intra vires Parliament’s trade and commerce power under s. 91(2) of the Constitution Act,1867 and its infringement of freedom of expression pursuant to s. 2(b) of the Charter was justified under s. 1. The CRTC also dismissed claims under ss. 7, 8 and 11. In the second decision, the CRTC found the Applicant company had committed four violations under CASL and imposed a $200K penalty. The Applicant company appealed the CRTC’s decisions to the Fed. C.A. Both appeals were dismissed. “The motion to join two Federal Court of Appeal files in a single application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”
Criminal Law: Forfeiture
Vellone v. R., 2020 QCCA 665 (39281)
In 2013, the Applicant, Mr. Vellone, was arrested for trafficking in a narcotic. Following his arrest, a telewarrant was obtained for his residence. During that search, the police found various pieces of evidence. In 2018, during criminal proceedings against Mr. Vellone, the Court of Québec excluded the evidence obtained at Mr. Vellone’s residence. However, Mr. Vellone pleaded guilty to the offence of possession of cocaine for the purposes in connection with the arrest for trafficking in a narcotic. The Respondent prosecutor applied for the forfeiture of Mr. Vellone’s residence as offence‑related property. The Court of Québec found it was clear Mr. Vellone was keeping the unlawful substances and the proceeds of his unlawful activities at his home. After weighing the specific circumstances of the case and the factors for analyzing proportionality, the Court of Québec concluded the forfeiture of half of Mr. Vellone’s residence was appropriate. The C.A. unanimously dismissed the appeal, finding the trial judge had not made any error that would warrant its intervention. “The application for leave to appeal…is dismissed.”
Criminal Law: Jury Challenges
Wilkins v. R., 2020 ONCA 308 (39412)
Prior to his trial on two drug charges, the Applicant obtained an order under s. 530 directing his trial proceed in English. He then sought to challenge every potential juror at trial on their competency in English pursuant to s. 638(1)(f). Dawson J. dismissed the application. The Applicant was convicted of possession for the purposes. The C.A. dismissed the appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
Criminal Law: Prior Consistent Statements
T.W.S. v. R., 2020 ABCA 157 (39341)
There is a publication ban in this case, in the context of alleged sexual abuse by a stepfather. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
Professions: Solicitor-Client Privilege
Gong v. R., 2020 ONCA 587 (39040)
Following an Ontario Securities Commission investigation, Mr. Gong was charged with fraud over $5K, possession of property obtained by crime, laundering proceeds of crime and uttering a forged document. The Ontario Securities Commission obtained a production order under the Criminal Code for documents held by PricewaterhouseCoopers LLP, which had been retained by Gowling WLG (Canada) LLP to provide accounting advice in relation to tax‑related legal advice provided to Mr. Gong. Mr. Gong claimed solicitor‑client and litigation privilege. A motion judge rejected the claim of litigation privilege but found it necessary to appoint referees to review each document to make a determination on solicitor-client privilege. Mr. Gong filed an appeal to the C.A. The C.A. quashed the appeal for want of jurisdiction. “The application for leave to appeal…is dismissed.”
Securities: Disclosure
BridgeMark Financial Corp. v. British Columbia (Securities Commission), 2020 BCCA 301 (39520)
In 2018, the B.C. Securities Commission initiated an investigation into a group of people and companies (collectively “BridgeMark”) for allegedly participating in the abuse of capital markets and the illegal distribution of securities. BridgeMark was temporarily prohibited from trading certain securities and the Order subsequently extended. The Commission determined a hearing would be conducted on the allegations once its staff concluded their investigation. In April 2019, Glacier Media applied for, and was granted access to, certain redacted exhibits and transcripts in the Commission’s proceedings. In July 2019, Camp Fiorante Matthews Mogerman LLP (a law firm representing clients in a related civil proceeding) applied for access to nine exhibits. The Commission granted access to the redacted exhibits. The B.C.C.A. dismissed the subsequent appeal. The B.C.C.A. subsequently stayed production of the exhibits until leave to appeal to the S.C.C. was determined. “The application for leave to appeal…is dismissed with costs to the respondents, British Columbia Securities Commission, Executive Director of the British Columbia Securities Commission and Camp Fiorante Matthews Mogerman LLP.”
Securities: Disclosure
BridgeMark Financial Corp. v. British Columbia (Securities Commission), 2020 BCCA 301 (39528)
Similar summary to that immediately above. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs to the respondents, British Columbia Securities Commission, Executive Director of the British Columbia Securities Commission and Camp Fiorante Matthews Mogerman LLP.”
Tax: Civil Liability For Tax Audits
Ludmer, et al. v. Attorney General of Canada, 2020 QCCA 697 (39334)
In 2005, the Applicants’ offshore investment vehicle became of interest for the Canada Revenue Agency (“CRA”). They were subject to a tax audit which lasted several years, resulting in a reassessment of more than $25M in unpaid taxes, interest and penalties. The Applicants filed notices of appeal to the Tax Court of Canada, and the CRA ultimately abandoned its claims in 2014. The Applicants sued the CRA for over $117M in damages and punitive damages, alleging the conduct of the CRA in the course of the audit was abusive and caused the failure of their offshore investment vehicle. The Superior Court granted the Applicants’ action in part and ordered the CRA to pay $ 4,844,658 in damages for committing several faults during the tax audit, but dismissed their claim for punitive damages. The C.A. dismissed both the appeal and incidental appeal. “The application for leave to appeal…is dismissed with costs. Côté J. took no part in the judgment.”