R. v. Kerntopf (W.B.), (1998) 232 A.R. 295 (CA)

• Court: Court of Appeal (Alberta)
• Case Date: December 02, 1998
• Citations: (1998), 232 A.R. 295 (CA)

R. v. Kerntopf (W.B.) (1998), 232 A.R. 295 (CA);

   195 W.A.C. 295

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. DE.075

Her Majesty The Queen (respondent) v. Waldemar Bruno Kerntopf (accused/appellant)

(96-16873)

Indexed As: R. v. Kerntopf (W.B.)

Alberta Court of Appeal

McClung and Picard, JJ.A., and  Bensler, J.(ad hoc)

December 8, 1998.

Summary:

The accused was convicted of four counts of fraud involving the misuse of research and development tax credits. The accused appealed.

The Alberta Court of Appeal dismissed the appeal. In dismissing the appeal, the court agreed with the trial judge's ruling on a voir dire reported at 235 A.R. 329.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused was charged with four counts of fraud - Search warrants had been issued under s. 231.3 of the Income Tax Act - Section 231.3 was subsequently found to be inconsistent with s. 8 of the Charter and of no force and effect - Search warrants were obtained under s. 487 of the Criminal Code to reseize the documents - The Supreme Court of Canada later affirmed that s. 231.3(3) of the Act violated the Charter - The accused applied to exclude the seized evidence, arguing that the initial seizures were invalid and the re-seizures under s. 487 of the Code could not cure the defect - Following a voir dire, the trial judge dismissed the application holding that the re-seizures under s. 487 of the Code were valid and exclusion of the evidence would bring the administration of justice into disrepute - The accused was convicted - In dismissing a conviction appeal, the Alberta Court of Appeal agreed with the trial judge's ruling on the voir dire.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1604 ].

Criminal Law - Topic 3046

Special powers - Search warrants - Valid­ity of - General - [See Civil Rights - Topic 1604 ].

Income Tax - Topic 9305

Enforcement - Search and seizure - Seizure of documents - General - [See Civil Rights - Topic 1604 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 4].

R. v. Chan (H.M.) (1993), 145 A.R. 304; 55 W.A.C. 304; 87 C.C.C.(3d) 25 (C.A.), refd to. [para. 4].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 5].

Counsel:

M.A. Gottlieb, for the appellant;

S.R. Creagh and D.R. Beeman, for the respondent.

This appeal was heard on December 2, 1998, before McClung and Picard, JJ.A., and Bensler, J.(ad hoc), of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court on December 8, 1998.