Archive for February, 2010

Archive for February, 2010

GUIDANCE TO THE TAX PROFESSIONAL

On behalf of Neuberger & Partners LLP posted in Uncategorized on Tuesday February 23, 2010.

Auditors meet Investigators at the Point of Predominant Purpose For the last several years, tax professionals have been in a state of confusion about the implications of when a tax audit has been used by the CCRA for purposes of investigating tax evasion. Recently, the Supreme Court of Canada has provided guidance on this issue, but has also left the tax professional and the taxpayer with lingering questions. In Regina...
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Impaired Driving Investigations – Right in Your Own Driveway

On behalf of Neuberger & Partners LLP posted in Uncategorized on Tuesday February 23, 2010.

In a recent decision, the Ontario Court of Appeal visited the issue of police investigation powers at a private driveway. In R. v. Lotozky the respondent had been investigated and arrested by two police officers in his driveway. Their interest had been generated by a radio call that an impaired driver had been attempting to use the drive-through window of a local restaurant. The police matched the licence plate to...
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R. v. Khelawon, 2006 SCC 57 – Clarifying Hearsay, Again

On behalf of Neuberger & Partners LLP posted in Domestic Violence on Tuesday February 23, 2010.

This recent decision of the Supreme Court of Canada has once again attempted to clarify how lower courts are to deal with issues of necessity and reliability in the determination of whether an out-of-court video taped statement ought to be admitted into evidence at trial. The issue often arises in domestic violence cases where a complainant does not wish to attend court or proceed to trial after having given the...
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WHEN TO TALK AND NOT TO TALK: Voluntariness in the Context of Drinking and Driving

On behalf of Neuberger & Partners LLP posted in Drunk Driving on Tuesday February 23, 2010.

Defending impaired driving and over 80 cases often involves a challenge to the actions of police officers holding up their conduct to the scrutiny of the Charter. One such area is the right to remain silent and to advise from counsel. Technology has yielded digitally recorded real time evidence showing the interaction between the police and the detainee while in the police station. This has a dual affect. All actions...
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Keep it in – Minor Breaches of the Charter are Okay with the Court

On behalf of Neuberger & Partners LLP posted in Drunk Driving on Tuesday February 23, 2010.

There is no doubt that impaired driving is a serious social issue affecting Canadians across Canada. The consequences of a conviction for impaired driving can have long lasting implications for an individual. This is partly why impaired driving cases account for the largest percentage of cases litigated in the Provincial courts. Charter jurisprudence has matured within this context. Consequences for Charter breaches such as the right to speak with counsel...
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BANG! BANG! BANG! – IS SECTION 24(2) DEAD?

On behalf of Neuberger & Partners LLP posted in Criminal Defence on Tuesday February 23, 2010.

Given the prevalence of gang and gun related homicides, exclusion of illegally obtained evidence has become difficult if not impossible to achieve on a section 24(2) Charter analysis. It is submitted, however, that we should not determine rights based on moral panic respecting the issue. Commonly, compelling Charter Applications are advanced on section 8 and/or section 9 violations, wherein officers detain young black men on city streets, in vehicles or...
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Who Polices the Police? Not the Court of Appeal!

On behalf of Neuberger & Partners LLP posted in Criminal Defence on Tuesday February 23, 2010.

The Ontario Court of Appeal in the recent case of Regina v. Harrison, 2008 ONCA 85, has given a license for police to trample on individual rights so long as the fruits of their conduct yields evidence of a crime. Under what appears to be a new form of analysis of s. 24(2) of the Charter, as long as the Crown can establish that the admission of the impugned evidence...
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BAD BOYS, BAD BOYS, What you going to do – Police Disciplinary Reports and Disclosure

On behalf of Neuberger & Partners LLP posted in Criminal Defence on Tuesday February 23, 2010.

For years, criminal defence lawyers across Canada have been told by their Crown Attorney counterparts that a third party record application was required in order to obtain police disciplinary records in defence of their clients. For years, criminal defence lawyers have argued, mostly unsuccessfully, that an officer's prior improper conduct was relevant to the police investigation and essential to making full answer and defence. On January 16, 2009, the Supreme...
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The Rise and Fall of Evidence to the Contrary: A Brief History

On behalf of Neuberger & Partners LLP posted in Criminal Defence on Tuesday February 23, 2010.

Introduction Although charges of impaired/over 80 have decreased in the past two decades, these driving offences currently constitute 12% of all cases on the dockets of lower courts. With approximately 15,000 impaired/over 80 cases being heard every year in the low courts, these offences represent the largest category of offence currently being tried in this court. Parliament first introduced the offence of "driving while intoxicated" in 1921 but it was...
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