Supreme Court of Canada Hearings

The issue in dispute is whether, during the 2001 to 2005 and 2008 and 2010 taxation years, the income of Glenhuron Bank Limited (“GBL”), a bank licenced in Barbados, was foreign accrual property income (“FAPI”) pursuant to ss. 91 and 95 of the Act. If so, the taxable income of Loblaw Financial Holdings Inc. in Canada must include a percentage of its affiliate’s FAPI equivalent to the participating percentage of the respondent’s shares in GBL. FAPI includes income from an investment business. The definition of investment business in s. 95(1) of the Act exempts a business, other than a business conducted principally with non-arm’s length persons, of a regulated foreign bank with greater than five full-time employees. The respondent appealed its tax reassessments on the basis that as GBL was a regulated foreign bank that met the added conditions, its income for the taxation years in question was not FAPI. The appellant argued that GBL was not a foreign bank, did not have greater that five full time employees and was not conducting business principally with non-arm’s length persons, since it was not in competition with anyone. The Crown also argued that the general anti-avoidance rule applied to a series of transactions by the respondent and GBL to give the appearance of compliance with the “investment business” exception.The Tax Court allowed the respondent’s appeals in part, holding that the foreign exchange gains or losses arising on GBL’s investment in short term securities should be on income account. However, the Court determined that while GBL is a regulated foreign bank with more than the equivalent of five full time employees, it was conducting business principally with related persons and therefore could not benefit from the financial institution exemption from investment business. It found, in obiter, that there had been no tax avoidance transactions. The Federal Court of Appeal allowed the respondent’s appeal, set aside the decision of the Tax Court, and referred the reassessment back to the Minister for reconsideration and reassessment on the basis that GBL’s FAPI consists only of income from investment management services provided to non-arm’s length parties. In its view, the receipts side of banking should not be considered when determining whether the investment business was conducted principally with non-arm’s length parties. Keywords Taxation - Income tax, Legislation, Interpretation - Taxation - Income tax - Tax avoidance - Legislation - Interpretation - Interpretation of foreign accrual property income provisions - Whether the business of the respondent’s foreign affiliate as a foreign bank was conducted principally with persons with whom it does not deal at arm’s length - Did the Federal Court of Appeal err in its interpretation of the definition of “investment business” in s. 95(1) of the Income Tax Act, particularly the phrase other than any business conducted principally with persons with whom the affiliate does not deal at arm’s length in the financial institution exception- Income Tax Act, R.S.C. 1985, c. 1 (5th Supp) ss. 91 and 95. Notes (Federal Court) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Charter of Rights - Criminal law - Search and seizure - Reasonable expectation of privacy - Digital recording ammeter - Exclusion of evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms - Whether the majority of the Court of Appeal erred in law in concluding that police actions in asking the electrical service provider to measure the Respondent’s electrical consumption with a digital recording ammeter (“DRA”), and in reviewing the results produced by the DRA, involved a search subject to the requirements of s. 8 of the Charter - Whether the majority of the Court of Appeal erred in law in concluding that requesting the installation of the DRA and reviewing the DRA data constituted an unreasonable search.The Respondent’s home became suspicious to Calgary police when they were in his neighbourhood investigating an unrelated matter. The police observed condensation on the Respondent’s home windows, considerable moisture being vented through the chimney and under the deck, and unusual ice buildup around the vents. The officers also noticed a smell of “growing” marihuana from the public roadway and therefore suspected that the Respondent had a marihuana grow operation in his home. The police then requested an electrical service provider in the area to install a digital recording ammeter (“DRA”) which would create a record of when the electrical power was consumed on the Respondent’s property. No judicial authorization for the DRA installation was obtained. With the information provided by the DRA and the earlier observations, the police obtained a search warrant to search the Respondent’s home. The trial judge dismissed the Respondent’s application to exclude the DRA evidence, although she did find that the Respondent’s s. 8 Charter rights had been breached. The Respondent was convicted of two drug offences. The majority of the Court of Appeal allowed the appeal and ordered a new trial, finding that the use of the DRA amounted to a form of surreptitious surveillance of an individual by the police which, without prior judicial authorization, constituted unreasonable search and seizure. O’Brien J.A. would have dismissed the appeal. Keywords Canadian charter - criminal. Notes (Alberta) (Criminal) (As of Right) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

The respondent, a resident of Luxembourg, claimed an exemption from Canadian income tax under Article 13(5) of the Canada-Luxembourg Income Tax Convention 1999 (Treaty) for a large capital gain arising from the sale of the shares of its wholly-owned Canadian subsidiary, Alta Energy Partners Canada Ltd. (“Alta Canada”). Alta Canada carried on an unconventional shale oil business in the Duvernay shale oil formation of Northern Alberta, controlling a net acreage of 67,891 and drilling six horizontal and vertical wells in the relevant period. An issue arose as to the application of Article 13(4) of the Treaty, under which Canada retains the right to tax capital gains arising from the disposition of shares whose value derives principally from immovable property. The respondent relied upon an exclusion to that provision that applies when the business of the company was carried on in the property. The appellant denied the exemption on the ground that substantially all Alta Canada’s interest remained Immoveable Property because it drilled and extracted in only a small portion of the area it controlled and had allegedly acquired the leases and licenses with an intention of selling them in the short-term. Alternatively, the appellant argued that the General Anti-Avoidance Rule (“GAAR”) under s. 245 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp) (the “Act”) operated to deny the tax benefit. The parties agreed that there was a “tax benefit” and an “avoidance transaction” but disagreed on whether an “abuse” or “misuse” triggered the application of GAAR.The Tax Court of Canada allowed the respondent’s appeal of the reassessments for the 2013 taxation year and referred the matter back to Minister for reconsideration and reassessment in accordance with its reasons for judgment. It held that the respondent’s interest in the property constituted Excluded Property and that the GAAR did not prevent the respondent’s entitlement to the exemption under Article 13(5) of the Treaty. The Federal Court of Appeal dismissed the appellant’s appeal. Keywords Legislation - Interpretation, Taxation - Legislation - Interpretation - Taxation - International Tax Treaties - Did the Federal Court of Appeal err in law in equating the object, spirit and purpose of the relevant treaty provisions with their textual meaning - Did the Federal Court of Appeal err in law and in fact in concluding that the avoidance transactions in this case did not result in an abuse of the relevant treaty provisions - Income Tax Act, R.S.C. 1985, c. 1 (5th Supp), ss. 2(3), 115(1) and 248(1) - Convention between the Government of Canada and the Government of the Grand Duchy of Luxembourg for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital, Articles 1, 4, 13(4) and 13(5). Notes (Federal Court) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

Steven Devecseri was insured by the respondent Royal & Sun Alliance Insurance Company of Canada (“RSA”) under a standard motor vehicle policy. Under this policy, Mr. Devecseri was prohibited from operating a motorcycle with any alcohol in his bloodstream. To do so would constitute a policy violation. In 2006, Jeffrey Bradfield, Mr. Devecseri and another were riding their motorcycles. Mr. Devecseri drove onto the wrong side of the road and collided with an automobile. Mr. Devecseri was killed. Mr. Bradfield the automobile driver were injured. RSA engaged an adjuster to investigate the accident. The adjuster obtained the police report, which made no mention of alcohol. The adjuster noted that the coroner’s report would confirm whether alcohol had been a factor in the accident, but neither he nor RSA took steps to obtain the report. Mr. Bradfield commenced and later settled an action against Mr. Devecseri’s estate and his own insurer for uninsured and underinsured coverage. The other motorcyclist brought a personal injury action against Mr. Devecseri and Mr. Bradfield. RSA retained counsel to defend Mr. Devecseri’s estate in both actions.Three years after the accident, RSA became aware that Mr. Devecseri had consumed beer before the accident. It then took steps to obtain the coroner’s report, which confirmed that Mr. Devecseri’s blood alcohol level was above zero at the time of death. RSA then took the position that the matter was off-coverage and it stopped defending Mr. Devecseri’s estate. Mr. Bradfield commenced an action against RSA alleging that it was too late for RSA to take an off-coverage position. He argued that, having defended Mr. Devecseri’s estate to the point of examinations for discovery even though it was or should have been aware of the policy breach, RSA had waived Mr. Devecseri’s policy breach, or was estopped for denying the coverage.The chambers judge granted the application, finding that RSA’s failure to take an off-coverage position after June 2006, and its defence of the claim amounted to a waiver by conduct of Mr. Devecseri’s breach of the insurance policy. The Court of Appeal allowed RSA’s appeal and dismissed Mr. Bradfield’s action. Keywords Insurance - Automobile insurance, Contracts, Estoppel - Insurance - Automobile insurance - Exclusions - Contracts - Waiver - Estoppel - Reasonable investigation of policy breach - Insured caused vehicular accident insured by defendant insurer - Plaintiff injured in accident - Policy prohibited operating vehicle with blood alcohol level above zero - Insurer retained counsel to defend insured’s estate - Insurer later obtained coroner’s report indicating insured’s blood alcohol level was above zero at time of accident - Insurer took off-coverage position - Whether the Court should decide case despite mootness - Whether insurer could use insured’s policy breach as a defence to injured party’s action - How the Insurance Act scheme interacts with waiver and estoppel with respect to rights under insurance contract - When insurer’s assumption and continuation of defence of action is assurance of coverage for purposes of estoppel - If so, what amounts to “detrimental reliance”. Notes (Ontario) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

(PUBLICATION BAN IN CASE)On December 22, 2016, the appellant, Mr. Albashir, was charged with several offences related to his operation of a commercial trade, including living on the avails of prostitution contrary to s. 212(1)(j) of the Criminal Code, R.S.C. 1985, c. C-46, between March 15 and December 5, 2014. Despite finding factual guilt on all counts, the trial judge quashed the s. 212(1)(j) counts on the indictment as unconstitutional, relying on Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. On December 20, 2013, in Bedford, the Court held that s. 212(1)(j) was overbroad and could not be saved under s. 1 of the Canadian Charter of Rights and Freedoms, but suspended the declaration of invalidity for a period of one year.The British Columbia Court of Appeal allowed the Crown’s appeal and ordered that convictions be entered for the s. 212(1)(j) counts, finding that the trial judge fell into error when he quashed them. Since Parliament replaced s. 212(1)(j) with a new offence that largely mirrors its predecessor in substance but carves out a number of exceptions intended to address concerns over security of the person raised in Bedford within the period of the suspension, conduct captured by the former iteration of the offence during the suspended declaration of invalidity is prosecutable. During the suspension period, s. 212(1)(j) was constitutionally valid. The retroactive effect of a suspended declaration of invalidity is pre-empted by the passing of remedial legislation: the declaration of invalidity never came into effect to render the provision a nullity ab initio. Keywords Constitutional law - Criminal law, Legislation - Constitutional law - Criminal law - Legislation - Declaration of invalidity - Living on avails of prostitution - Temporary suspension of declaration of invalidity - Parliament repealing and replacing legislation before expiration of suspended period - What is the effect of a suspended declaration of invalidity if Parliament repeals and replaces the legislation found to be constitutionally invalid prior to the expiry of the suspended declaration?. Notes (British Columbia) (Criminal) (As of Right) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

In 2016, the respondent, Mr. Vallières, was convicted by a jury of offences relating to fraud, trafficking and theft of maple syrup from the Fédération des producteurs acéricoles du Québec. The proceeding that led to this appeal concerned the sentencing for those offences.The Superior Court was of the view that the various criteria applicable to fines in lieu, established both by the Criminal Code and by the case law, were met in this case. As a result, it found that it had no choice but to impose a fine in lieu, given that the stolen property could not be recovered. With regard to determining the value of the property (s. 462.37(3) of the Criminal Code), it noted that judicial discretion was limited and that the amount of the fine had to be equal to the value of the property the accused had in his possession or under his control. It held that the evidence in this case showed beyond a reasonable doubt that Mr. Vallières had received $10,000,000 from the theft, and it therefore found that it had no choice but to order the payment of a fine of $9,393,498 ($10,000,000 minus US$606,501 claimed under the restraint order, which was not in issue).The Court of Appeal unanimously allowed the appeal on this point. In its view, the amount of the fine in lieu — $10,000,000 minus the amount of the restitution order — seemed exorbitant. It found that the proper approach was the one taken by the Ontario Court of Appeal in Dieckmann (2017 ONCA 575): where there is sufficient evidence, a court may exercise its discretion to set a fine that reflects the profit the offender received from the criminal activity, provided that the dual objectives of depriving offenders of the proceeds of crime and deterring criminal organizations and accomplices are met. It found that the trial judge had erred in stating that he had no choice but to order the payment of $9,393,498.44 and that this error in principle had led to the imposition of a fine that was demonstrably unfit and was a substantial and marked departure from the fine imposed on the other co accused who had the stolen syrup in their possession. The Court of Appeal held that the fine in lieu should be $1,000,000 minus the amount of the restitution order (US$606,501) based on the foreign currency conversion suggested by the Crown, for a total of $171,397.57. Keywords Criminal law - Sentencing - Criminal law - Sentencing - Fine in lieu - Whether Quebec Court of Appeal erred in law in determining and applying proper legal framework for calculating fine in lieu of forfeiture of proceeds of crime - Whether Court of Appeal erred in law by failing to allow parties to be heard regarding change to quantum of fine in lieu even though Mr. Vallières had not raised this issue in his appeal - Criminal Code, R.S.C. 1985, c. C 46, s. 462.37. Notes (Quebec) (Criminal) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

The appellant attended a party where he consumed alcohol and magic mushrooms. While intoxicated, he broke into two homes. In the first, he beat the lone occupant with a hard object, causing her serious injuries. In the second, he caused damage to property. At trial, the appellant brought a constitutional challenge to s. 33.1 of the Criminal Code, R.S.C. 1985, c. C-46, which precluded him from availing himself of the defence of non-mental disorder automatism to the charge of breaking and entering with commission of an aggravated assault. The application judge held that s. 33.1 infringes both ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms, and declared s. 33.1 to be of no force or effect. The trial judge accepted expert evidence that the appellant was in a state of automatism at the time of the offences, and acquitted him of all charges. The Crown appealed, and the Court of Appeal for Alberta allowed the appeal, set aside the declaration of invalidity, set aside the acquittal on the charge of breaking and entering with commission of an aggravated assault, and entered a conviction on the lesser and included offence of aggravated assault. Keywords Constitutional law - Canadian charter (Criminal) - Constitutional law - Charter of Rights and Freedoms - Defence of non-mental disorder automatism not available if accused’s state of automatism due to self-induced intoxication pursuant to s. 33.1 of Criminal Code, R.S.C. 1985, c. C-46 - Whether s. 33.1 infringes ss. 7 or 11(d) of the Charter - If so, whether the infringement justified under s. 1 of the Charter. Notes (Alberta) (Criminal) (As of Right) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

This case arises from disciplinary proceedings pursued by the appellant, the Law Society of Saskatchewan (“LSS”), against the respondent lawyer, Peter V. Abrametz. Those proceedings, which began with an audit investigation initiated in 2012, resulted in a January 10, 2018, decision in which a Hearing Committee of the LSS found Mr. Abrametz guilty of four counts of conduct unbecoming a lawyer. The convictions were for breaches of the Law Society of Saskatchewan Rules and the version of the Code of Professional Conduct that was then in effect.On January 18, 2019, the Hearing Committee ordered Mr. Abrametz disbarred, with no right to apply for readmission as a lawyer prior to January 1, 2021. In its November 8, 2018, stay decision, the Hearing Committee dismissed Mr. Abrametz’s application to stay the proceedings as a result of undue delay constituting an abuse of process.Mr. Abrametz appealed his conviction and the penalty decision to the Court of Appeal pursuant to s. 56(1) of The Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1. The Court of Appeal allowed the appeal in part; it stayed the Law Society proceedings; set aside the imposed penalty and costs awards but findings of professional misconduct were maintained. Keywords Administrative law - Abuse of process - Administrative law — Abuse of process — Delay — Disciplinary proceedings pursued by Law Society against lawyer — Hearing Committee dismissing lawyer’s application to stay proceedings as a result of undue delay constituting an abuse of process — Court of Appeal allowing appeal in part — What is applicable standard of review — What are principles applicable to administrative delay — Whether Court of Appeal erred in its Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 analysis — Whether law in respect of administrative delay should be changed in light of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 and Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. Notes (Saskatchewan) (Civil) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

A police search of Mr. Parranto on arrest and searches of his residence found fentanyl, other drugs, cash, weapons and drug paraphernalia. Mr. Parranto pleaded guilty to 8 offences including two counts of wholesale trafficking in fentanyl. On the two counts of wholesale trafficking in fentanyl, he was sentenced to 4 years and 5 years consecutive. In six transactions, Mr. Felix sold fentanyl and cocaine to an undercover police. Mr. Felix pleaded guilty to four offences including two counts of wholesale and commercial trafficking in fentanyl. On the counts of trafficking in fentanyl, Mr. Felix was sentenced to two 7-year terms concurrent. On appeals from the sentences, the Court of Appeal established a starting point of 9 years for sentences for wholesale trafficking in fentanyl. It sentenced Mr. Parranto to two 7-year terms consecutive for trafficking in fentanyl and Mr. Felix to two 10-year terms concurrent for trafficking in fentanyl. Keywords Criminal law - Sentencing - Criminal law - Sentencing - Standard of review on sentence appeal - Whether Court of Appeal erred in setting a starting-point for sentencing for wholesale fentanyl trafficking - Whether starting point approach to sentencing improperly emphasizes parity of sentence at the expense of individualization of sentence - Whether Court of Appeal erred in reversing sentencing judge because sentencing judge refused to adopt a starting-point approach- Whether Court of Appeal misapplied standard of appellate review for sentencing decisions?. Notes (Alberta) (Criminal) (By Leave) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).

The appellant was jointly charged and tried by a jury with his co-accused of possession of a loaded restricted firearm. It was alleged that the appellant had brought the firearm to a nightclub and used it to threaten a security guard (“witness”) at the club’s entrance, and that the co-accused took possession of the weapon shortly thereafter. The witness’s credibility was central to the Crown’s case. The trial judge made a number of mid-trial rulings which had the effect of preventing the appellant’s counsel from cross-examining the witness on his prior statements to police and at the preliminary inquiry, and she disallowed a line of questioning related to alleged discreditable conduct by the co-accused. The trial judge also directed the jury that the witness had made prior consistent statements, but did not require those statements to be put into evidence. Both the appellant and his co-accused were found guilty.The appellant appealed his conviction, alleging that the trial judge erred in limiting the witness’s cross-examination by the appellant’s counsel and in misdirecting the jury on the witness’s prior consistent statements. He also argued that the errors undermined the fairness of the trial. A majority of the Court of Appeal dismissed the appeal, holding that the rulings were trial management decisions within the discretion of the trial judge which are entitled to deference. The rulings did not deprive the appellant of material evidence necessary for his defence and did not impact the fairness of the trial. In dissent, Paciocco J.A. would have allowed the appeal and ordered a new trial. In his view, the trial judge’s rulings deprived the appellant of important evidence related to the witness’s credibility, and the fairness of the trial was undermined by the trial judge’s errors. Keywords Criminal law - Evidence - Criminal law - Trial management powers - Evidence - Admissibility of evidence - Cross-examination - Credibility - Prior inconsistent statements - Prior consistent statements - Trial fairness - Whether the majority of the Court of Appeal erred in finding that the trial judge’s mid-trial rulings were a proper exercise of her trial management powers and subject to deference - Whether the majority of the Court of Appeal erred in finding that the mid-trial rulings did not render the trial unfair by depriving the appellant of the ability to make full answer and defence. Notes (Ontario) (Criminal) (As of Right) Disclaimers This podcast is created as a public service to promote public access and awareness of the workings of Canada's highest court. It is not affiliated with or endorsed by the Court. The original version of this hearing may be found on the Supreme Court of Canada's website. The above case summary was prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch).