R. v. MacNeil (J.P.), 2009 NSCA 46

• Judge: Roscoe, Bateman and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 31, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSCA 46;(2009), 277 N.S.R.(2d) 22 (CA)

R. v. MacNeil (J.P.) (2009), 277 N.S.R.(2d) 22 (CA);

    882 A.P.R. 22

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. MY.020

Her Majesty the Queen (appellant) v. John Peter MacNeil (respondent)

(CAC 303681; 2009 NSCA 46)

Indexed As: R. v. MacNeil (J.P.)

Nova Scotia Court of Appeal

Roscoe, Bateman and Hamilton, JJ.A.

May 12, 2009.

Summary:

A Revenue Canada audit disclosed that MacNeil, a medical doctor, had under-reported his income and exaggerated his expenses for the years 1997-2000. MacNeil was charged with making false or deceptive statements in his income tax returns and wilfully evading taxes by failing to report additional taxable income.

The Nova Scotia Provincial Court, in a decision reported at (2007), 254 N.S.R.(2d) 369; 810 A.P.R. 369, convicted MacNeil of filing false or deceptive statements and acquitted him of wilfully evading taxes. MacNeil appealed from the convictions.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, allowed the appeal, quashed the convictions and entered acquittals. The Crown sought leave to appeal and, if granted, appealed only on the issue of whether a new trial should have been ordered.

The Nova Scotia Court of Appeal granted leave to appeal and allowed the appeal. The acquittals were reversed and a new trial was ordered.

Criminal Law - Topic 7633

Summary conviction proceedings - Appeals - New trials - Grounds - MacNeil was charged with four counts of making false or deceptive statements in his income tax return for the years 1997 to 2000 (s. 239(1)(a) in the Income Tax Act) and one count of willfully evading payment of income tax by under-reporting his taxable income (s. 239(1)(d)) - He was acquitted of the wilful evasion charge and convicted of the four offences of making false or deceptive statements - The Summary Conviction Appeal Court (SCAC) judge found that the trial judge had erred by finding MacNeil guilty after making a finding of fact that MacNeil had no intention to file false or deceptive statements - The convictions for making false or deceptive statements were quashed and acquittals entered - The Crown sought leave to appeal and, if granted, appealed only on the issue of whether a new trial should have been ordered - The Nova Scotia Court of Appeal granted leave to appeal and allowed the appeal - First, the SCAC judge erred in concluding that the trial judge had found that MacNeil had not intended to make false or deceptive statements - The paragraph in the trial judge's decision that the SCAC judge relied on did not refer to the four s. 239(1)(a) charges, but to the s. 239(1)(d) charge on which MacNeil was acquitted - Second, the SCAC judge failed to consider the admissible evidence in the record to see if it was such that a properly instructed trier of fact could reasonably convict MacNeil - Had he done so, he would have seen that there was such evidence in the record such that a new trial was in order - The acquittal was reversed and a new trial ordered.

Criminal Law - Topic 7652

Summary conviction proceedings - Appeals - Grounds - Error of law - [See Criminal Law - Topic 7633 ].

Cases Noticed:

R. v. R.R. (2008), 238 O.A.C. 242; 234 C.C.C.(3d) 463; 2008 ONCA 497, refd to. [para. 9].

R. v. Levy (1991), 44 O.A.C. 5; 62 C.C.C.(3d) 97 (C.A.), refd to. [para. 11].

R. v. D.C.S. (2000), 184 N.S.R.(2d) 299; 573 A.P.R. 299; 2000 NSCA 61, refd to. [para. 16].

R. v. Pittiman (R.), [2006] 1 S.C.R. 381; 346 N.R. 65; 209 O.A.C. 388; 2006 SCC 9, refd to. [para. 17].

R. v. Schneider (A.) (2004), 228 N.S.R.(2d) 344; 723 A.P.R. 344; 2004 NSCA 151, refd to. [para. 17].

R. v. Stratton (M.) et al. (2003), 218 N.S.R.(2d) 23; 687 A.P.R. 23; 2003 NSCA 104, refd to. [para. 17].

R. v. Reid and Stratton - see R. v. Stratton (M.) et al.

R. v. Schoenthal (D.L.) (2007), 299 Sask.R. 1; 408 W.A.C. 1; 2007 SKCA 80, refd to. [para. 17].

R. v. Keepness (S.C.) (2007), 293 Sask.R. 77; 397 W.A.C. 77; 2007 SKCA 42, refd to. [para. 17].

R. v. Morin (J.) (1997), 5 C.R.(5th) 331 (Que. C.A.), refd to. [para. 17].

R. v. Thorne (B.) (2004), 279 N.B.R.(2d) 92; 732 A.P.R. 92; 2004 NBCA 102, refd to. [para. 17].

R. v. Wood (D.W.) (2006), 397 A.R. 389; 384 W.A.C. 389; 2006 ABCA 343, refd to. [para. 17].

R. v. Sobus (J.W.), [2005] B.C.T.C. Uned. 195; 2005 BCSC 526, refd to. [para. 17].

R. v. Moore (T.), [2005] B.C.A.C. Uned. 38; 2005 BCCA 85, refd to. [para. 19].

R. v. Karametch, [2000] O.J. No. 3744 (C.A.), refd to. [para. 19].

Authors and Works Noticed:

Sopinka, John, and Gelowitz, Mark A., The Conduct of an Appeal (2nd Ed. 2000), p. 145 [para. 18].

Counsel:

Mark Donohue, for the appellant;

Elizabeth A. Buckle and M. Gerard Tompkins, Q.C., for the respondent.

This appeal was heard at Halifax, Nova Scotia, on March 31, 2009, by Roscoe, Bateman and Hamilton, JJ.A., of the Nova Scotia Court of Appeal. On May 12, 2009, Hamilton, J.A., delivered the following reasons for judgment for the court.