R. v. Purves, (1979) 3 Man.R.(2d) 88 (CA)

• Judge: Freedman, C.J.M., Huband, Matas, Monnin and O'Sullivan, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 18, 1979
• Jurisdiction: Manitoba
• Citations: (1979), 3 Man.R.(2d) 88 (CA)

R. v. Purves (1979), 3 Man.R.(2d) 88 (CA)

MLB headnote and full text

R. v. Purves

Indexed As: R. v. Purves

Manitoba Court of Appeal

Freedman, C.J.M., Huband, Matas, Monnin and O'Sullivan, JJ.A.

September 18, 1979.

Summary:

This case arose out of a charge of tax evasion contrary to the federal Income Tax Act. The accused was charged with failing to disclose income on his income tax return. The accused testified at his trial that the failure to disclose was inadvertent. The trial judge accepted the accused's explanation and acquitted the accused. The Crown appealed to the Manitoba County Court under s. 748 of the Criminal Code. The County Court allowed the appeal, set aside the acquittal of the accused and convicted the accused. The accused appealed to the Manitoba Court of Appeal.

The Manitoba Court of Appeal allowed the appeal, set aside the judgment of the Manitoba County Court and restored the acquittal of the accused.

Monnin, J.A., dissenting, in the Manitoba Court of Appeal, would have dismissed the appeal and would have affirmed the judgment of the Manitoba County Court.

An application for leave to appeal to the Supreme Court of Canada was dismissed on December 18, 1979 - see Bulletin of Proceedings taken in the Supreme Court of Canada, dated December 21, 1979 at p. 13.

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact by a trial judge - The Manitoba Court of Appeal stated that an appeal court should not interfere with primary findings of fact by a trial judge which are to be distinguished from findings of fact based on inferences from primary findings of fact - See paragraphs 13 and 14.

Evidence - Topic 8

General principles - What constitutes a question of fact - The accused was charged with failing to report income on his income tax return - The accused testified at his trial that the failure to disclose was inadvertent - The trial judge acquitted the accused - The Manitoba Court of Appeal held that such a finding supported by direct evidence was a finding of fact not ordinarily reviewable on appeal - The Court of Appeal stated that such a finding should be distinguished from findings based on circumstantial evidence or based on inferences from primary facts - See paragraphs 11 to 14.

Criminal Law - Topic 5020

Appeals - Indictable offences - Whether verdict "unreasonable or cannot be supported by the evidence" (s. 613 of the Criminal Code) - The Manitoba Court of Appeal stated that s. 613(1)(a)(i) applies only to appeals against conviction and not to appeals against acquittal - See paragraph 21.

Cases Noticed:

R. v. Antonelli (1977), 38 C.C.C.(2d) 206, refd to. [para. 8].

Benmax v. Austin Motor Co. Ltd., [1955] 1 All E.R. 326, refd to. [para. 14].

Watt (or Thomas) v. Thomas, [1947] 1 All E.R. 582, refd to. [para. 15].

MacNeill and Shanahan v. Briau, 9 Nfld. & P.E.I.R. 346; [1977] 2 S.C.R. 205, refd to. [para. 16].

Hoyt et al. v. Grand Lake Development Corporation et al., 16 N.R. 65; [1977] 2 S.C.R. 907, refd to. [para. 17].

S.S. Hontestroom v. S.S. Sagaporack, [1927] A.C. 37, refd to. [para. 17].

Powell v. Streatham Manor Nursing Home, [1935] A.C. 243, refd to. [para. 18].

Prudential Trust Company Limited v. Forseth, [1960] S.C.R. 210, refd to. [para. 18].

Metivier and Metivier v. Cadorette, 8 N.R. 129; [1977] 1 S.C.R. 371, refd to. [para. 18].

R. v. Zantec Industries Ltd. (1976), 60 D.L.R.(3d) 98, refd to. [paras. 19, 45].

Corbett v. The Queen (1974), 14 C.C.C.(2d) 385, refd to. [para. 19].

Ciglen v. The Queen (1970), 11 D.L.R.(3d) 1, refd to. [para. 22].

Yuill v. Yuill, [1945] 1 All E.R. 183, refd to. [paras. 27, 46].

R. v. Antonelli (1978), 38 C.C.C.(2d) 206, refd to. [para. 38].

Mersey Docks and Harbour Board v. Procter, [1923] A.C. 253, refd to. [para. 44].

Corbett v. Regina (1974), 25 C.R. 296, refd to. [para. 45].

R. v. White, [1947] S.C.R. 268, refd to. [para. 48].

R. v. Lampard, [1969] S.C.R. 373, refd to. [para. 49].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 613(1)(a)(i) [para. 21]; sect. 613(2) [para. 24].

Counsel:

D.G. Frayer, for the (informant) respondent;

W.B. Williston, Q.C. and A.J. Irving, for the (accused) appellants.

This appeal was heard by FREEDMAN, C.J.M, MONNIN, MATAS, O'SULLIVAN and HUBAND, JJ.A., of the Manitoba Court of Appeal on June 21, 1979.

The judgment of the Manitoba Court of Appeal was delivered on September 18, 1979, and the following opinions were filed:

O'SULLIVAN, J.A. - see paragraphs 1 to 30;

MONNIN, J.A., dissenting - see paragraphs 31 to 52.

FREEDMAN, C.J.M., MATAS and HUBAND, JJ.A., concurred with O'SULLIVAN, J.A.