R. v. White (H.S.) and Sennet (S.), (1997) 99 O.A.C. 1 (CA)

• Judge: Weiler, Laskin and Charron, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 10, 1997
• Jurisdiction: Ontario
• Citations: (1997), 99 O.A.C. 1 (CA);1997 CanLII 2426 (ON CA);1997 CanLII 2426 (NS CA);32 OR (3d) 722;114 CCC (3d) 225;[1997] CarswellOnt 1328;[1997] OJ No 961 (QL);34 WCB (2d) 110;43 CRR (2d) 1;99 OAC 1

R. v. White (H.S.) (1997), 99 O.A.C. 1 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Howard S. White and Sydney Sennet (appellants)

(C17336; C17698)

Indexed As: R. v. White (H.S.) and Sennet (S.)

Ontario Court of Appeal

Weiler, Laskin and Charron, JJ.A.

March 10, 1997.

Summary:

White, an engineer and businessman, controlled two companies that participated in the Scientific Research Tax Credit (SRTC) program. The SRTC program provided income tax credits to Canadian companies that carried out scientific research and de­velopment. White was charged with three counts of defrauding Revenue Canada of income tax because of designations made by his companies under the SRTC program. Sennet, White's accountant, was charged with one count of conspiring to commit the frauds. A jury convicted White and Sennet. The sentencing judge sentenced White to seven years' imprisonment on each charge to be served concurrently. Sennet was sen­tenced to four and one-half years' imprison­ment. White and Sennet appealed their convictions and sentences. The Crown cross-appealed the sentence.

The Ontario Court of Appeal dismissed the conviction appeals, the sentence appeals and the cross-appeal.

Barristers and Solicitors - Topic 1509

Relationship with client - Tactical deci­sions or errors by counsel - The Ontario Court of Appeal stated that "the decision to call a particular witness is generally that of the defence counsel not of the client. Once a client has pleaded not guilty, apart from a few fundamental decisions such as whether the client should testify, defence counsel decides how a case should be conducted. Defence counsel are not mere mouthpieces for their clients. They conduct the case by exercising their professional skill and judgment in what they consider to be the best interests of their clients. Their control over the conduct of the case ordinarily includes deciding what witnesses to call, what witnesses to cross-examine and how to cross-examine them." - See paragraph 90.

Barristers and Solicitors - Topic 1509

Relationship with client - Tactical deci­sions or errors by counsel - The accused appealed his conviction for fraud, alleging, inter alia, incompetence by counsel - In particular, he alleged that counsel failed to interview and subpoena important witnesses - Counsel had the witness state­ments and the preliminary inquiry testi­mony of the two witnesses - Counsel felt that the witnesses' testimony could have been detrimental to the accused - The Ontario Court of Appeal stated that defence counsel should have interviewed the witnesses before deciding not to call them as witnesses - The court held that counsel's decision not to call the witnesses was reasonable and the accused did not suffer any prejudice - See paragraphs 88 to 96.

Barristers and Solicitors - Topic 1556

Relationship with client - Duty to client - Preparation for trial - [See second Barris­ters and Solicitors - Topic 1509 ].

Barristers and Solicitors - Topic 1608

Relationship with client - Conflict of interest - Resulting from lawyer's relations - White was charged with income tax fraud - White's counsel had a controlling interest in a mining company - White initiated a business relationship between the company and a consortium - White had no known financial interest in the consortium, he had no known position with it and he received no known fee for his occasional representation of the consortium - During White's trial, his counsel's com­pany and the consortium had a disagree­ment - White was convicted of fraud - He appealed, claiming that his counsel had a conflict between his interest in the com­pany and his duty to defend White - The Ontario Court of Appeal held that there was no conflict of interest - See para­graphs 119 to 130.

Barristers and Solicitors - Topic 1609

Relationship with client - Conflict of interest - Resulting from lawyer's self-interest - [See Barristers and Solicitors - Topic 1608 ].

Barristers and Solicitors - Topic 1617

Relationship with client - Conflict of interest - Situations not resulting in a conflict - [See Barristers and Solicitors - Topic 1608 ].

Barristers and Solicitors - Topic 1620.2

Relationship with client - Conflict of interest - Raised on appeal - The Ontario Court of Appeal stated that "[i]f a client first alleges on appeal that his lawyer has a conflict of interest at trial, then the client must demonstrate: (i) that the lawyer had an actual conflict of interest - a mere appearance of conflict will not suffice; and (ii) that the conflict adversely affected the lawyer's representation of the client. If these two requirements are established, the client has been denied his right to make full answer and defence and his right to a fair trial" - See paragraph 124.

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Delay - White was charged with tax evasion under the Income Tax Act on March 12, 1987 - He was living in the United States and could not be extradited for tax evasion - On October 6, 1989, White was charged with fraud and forgery under the Criminal Code - The Crown promptly sought extradition - White was extradited on December 15, 1991 - His trial began on September 7, 1993 - On December 17, 1993, White was convicted on two counts of fraud - White claimed that the delay (six years and nine months) violated his s. 11(b) Charter right to a trial within a reasonable time - The Ontario Court of Appeal affirmed that White's s. 11(b) right was not violated - White caused much of the delay - The case was very complicated - White was not prejudiced by the delay - See para­graphs 22 to 57.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The Ontario Court of Appeal stated that to make out a suc­cessful claim of incompetent representa­tion, an appellant had to establish: 1) the factual foundation for the claim (i.e., prove on a balance of probabilities the acts or omissions of trial counsel that are alleged to be incompetent), 2) that trial counsel's conduct of the defence was incompetent and 3) that trial counsel's incompetence prejudiced the defence - See paragraph 63.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - The accused ap­pealed his conviction for fraud, alleging, inter alia, incompetence by counsel - In particular, he alleged that counsel failed to challenge a search and seizure conducted by Revenue Canada investigators with a search warrant issued under s. 231.3 of the Income Tax Act - Section 231.3 was held unconstitutional in Baron et al. v. Minister of National Revenue - The Ontario Court of Appeal held that defence counsel's decision not to challenge the search and seizure was not unreasonable - Even if it was unreasonable, the accused was not prejudiced, where even if the accused's s. 8 rights were violated, the evidence would likely not have been excluded in the cir­cumstances and if excluded an acquittal was still not a realistic possibility - See paragraphs 79 to 87.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - White was con­victed by a jury of income tax fraud - He appealed, alleging, inter alia, that his trial counsel was incompetent and that he was therefore denied his ss. 7 and 11(d) Char­ter rights to the effective assistance of counsel - The Ontario Court of Appeal rejected the argument - The court stated that there may be cases in which the col­lective effect of a number of instances of claimed ineffective representation would support a finding of incompetence, though no individual instance does so - The court held that this was not such a case - White failed to show that he was incompetently defended at trial or that he was prejudiced by the impugned acts and omissions of trial counsel - See paragraphs 58 to 118.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - [See second Bar­risters and Solicitors - Topic 1509 ].

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Denial of right - [See Civil Rights - Topic 3130 ].

Civil Rights - Topic 4620.1

Right to counsel - Right to effective as­sistance by counsel - [See second Barris­ters and Solicitors - Topic 1509 and first, second and third Civil Rights - Topic 3158 ].

Criminal Law - Topic 253

Abuse of process - What constitutes - White was charged with tax evasion under the Income Tax Act - He was living in the United States and could not be extradited for tax evasion - Subsequently, the Crown charged White with fraud and forgery under the Criminal Code - The Crown had White extradited on the fraud charges - White claimed that the substitution of the fraud charges for the income tax evasion charges amounted to an abuse of process - The Ontario Court of Appeal stated that the Crown's exercise of its prosecutorial discretion in substituting fraud charges did not amount to an abuse of process - The Crown had a valid reason for substituting fraud charges, to bring White back to Canada to stand trial - See paragraphs 97 to 102.

Criminal Law - Topic 2673

Attempts, conspiracies, accessories and parties - Conspiracies - Jury charge - White was convicted of three counts of income tax fraud - Sennet was convicted of conspiracy to commit fraud - They appealed, claiming that the trial judge erred in his direction with respect to the second and third stages of the co-con­spirator rule - Specifically, the accused alleged that the trial judge failed to ade­quately charge the jury with respect to (a) what direct evidence could be considered in determining either accused's probable membership in the conspiracy, (b) how to determine the probable membership of alleged co-conspirators and (c) that only acts and declarations of co-conspirators that were "in furtherance" of the conspir­acy could be considered - The Ontario Court of Appeal rejected the accused's arguments - See paragraphs 131 to 162.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - [See Criminal Law - Topic 2673 ].

Criminal Law - Topic 4725

Procedure - Information or indictment, charge or count - Indictable offences - Laying of charge - Abuse of process - [See Criminal Law - Topic 253 ].

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See Crimi­nal Law - Topic 5857 ].

Criminal Law - Topic 5857

Sentence - Conspiracy - Income tax fraud - White was convicted of three counts of defrauding Revenue Canada of income tax - Sennet, White's accountant, was con­victed of one count of conspiring to com­mit the frauds - It was one of the largest tax frauds in Canada - White appealed his sentence of seven years' imprisonment on each charge (concurrent) - Sennet ap­pealed his sentence of four and one-half years' imprisonment - The accused claimed that their sentences should be consistent with sentences for income tax evasion - Sennet claimed that his sentence should be proportional to that of a co-conspirator who testified for the Crown - The Crown cross-appealed seeking to increase Sennet's sentence and the imposi­tion of a fine against both accused - The Ontario Court of Appeal affirmed the sentences - See paragraphs 168 to 175.

Criminal Law - Topic 5859

Sentence - Fraud - Income tax - [See Criminal Law - Topic 5857 ].

Cases Noticed:

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 24].

Hogan v. O'Neill (1921), 255 U.S. 52, refd to. [para. 35].

United States v. Deleon (1983), 710 F.2d 1218 (7th Cir.), refd to. [para. 35].

R. v. Terry (R.S.), [1996] 2 S.C.R. 207; 197 N.R. 105; 76 B.C.A.C. 25; 125 W.A.C. 25; 106 C.C.C.(3d) 508, refd to. [para. 38].

State v. Robbins (1985), 708 P.2d 227 (Montana S.C.), refd to. [para. 42].

State v. McDonald (1974), 526 P.2d 698 (Arizona S.C.), refd to. [para. 42].

United States of America v. McVey, [1992] 3 S.C.R. 475; 144 N.R. 81; 16 B.C.A.C. 241; 28 W.A.C. 241; 77 C.C.C.(3d) 1, refd to. [para. 43].

United States v. Sensi (1989), 879 F.2d 888 (D.C. Cir.), refd to. [para. 43].

United States v. Manzi (1989), 88 F.2d 204 (lst Cir.), refd to. [para. 43].

Strickland v. Washington (1984), 466 U.S. 668 (S.C.), refd to. [para. 62].

R. v. Garofoli et al. (1988), 27 O.A.C. 1 (C.A.), refd to. [para. 63].

R. v. Silvini (1991), 50 O.A.C. 376 (C.A.), refd to. [para. 63].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186 (C.A.), refd to. [para. 63].

R. v. L.C.B. (1996), 88 O.A.C. 81 (C.A.), refd to. [para. 63].

Baron et al. v. Minister of National Rev­enue et al., [1993] 1 S.C.R. 416; 146 N.R. 270, refd to. [para. 79].

Kimmelman v. Morrison (1986), 477 U.S. 365 (3rd Cir.), refd to. [para. 81].

Baron et al. v. Minister of National Rev­enue et al. (1989), 30 F.T.R. 188 (T.D.), refd to. [para. 85].

R. v. Cancor Software Corp. (1991), 91 D.T.C. 5456 (Ont. Gen. Div.), refd to. [para. 85].

R. v. Martin (1993), 94 D.T.C. 6104 (Ont. Gen. Div.), refd to. [para. 85].

R. v. Alpherie Brisson Ltée, [1995] O.J. 1777 (Gen. Div.), refd to. [para. 85].

R. v. Strauss (D.W.), (1995), 61 B.C.A.C. 241; 100 W.A.C. 241; 100 C.C.C.(3d) 303 (C.A.), refd to. [para. 93].

R. v. Cancor Software Corp. et al. (1990), 40 O.A.C. 122 (C.A.), refd to. [para. 98].

United States of America v. Leon, [1996] 1 S.C.R. 888; 195 N.R. 228; 90 O.A.C. 217, refd to. [para. 100].

R. v. Boutilier (R.E.) (1995), 147 N.S.R.(2d) 200; 426 A.P.R. 200 (C.A.), dist. [para. 101].

R. v. Profit, [1993] 3 S.C.R. 637; 159 N.R. 395; 68 O.A.C. 37, reving. (1992), 58 O.A.C. 226; 16 C.R.(4th) 332 (C.A.), refd to. [para. 106].

Shumiatcher, Re (1961), 131 C.C.C. 112 (Sask. C.A.), refd to. [para. 111].

Forest and Registrar of Court of Appeal of Manitoba, Re (1977), 35 C.C.C.(2d) 497 (Man. C.A.), refd to. [para. 111].

Canada (Attorney General) v. Pattison (No. 2) (1980), 1 C.C.C.(3d) 314 (Alta. C.A.), refd to. [para. 111].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93, refd to. [para. 111].

R. v. Corbeil (1986), 13 O.A.C. 382 (C.A.), refd to. [para. 111].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 111].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 111].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 25 O.R.(3d) 161 (C.A.), refd to. [para. 124].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 124 A.P.R. 142, refd to. [para. 132].

R. v. Filiault and Kane (1981), 52 N.R. 321; 3 O.A.C. 155; 63 C.C.C.(2d) 321 (C.A.), refd to. [para. 140].

R. v. Nerlich (1915), 24 C.C.C. 256 (Ont. C.A.), refd to. [para. 151].

R. v. Johnston (1902), 6 C.C.C. 232 (Que. C.A.), refd to. [para. 151].

R. v. Giguère (1963), 41 C.R. 308 (Que. Sess. Ct.), refd to. [para. 151].

R. v. Gerson (1947), 89 C.C.C. 138 (Ont. C.A.), refd to. [para. 151].

R. v. Baron and Wertman (1976), 31 C.C.C.(2d) 525 (Ont. C.A.), refd to. [para. 156].

R. v. Cancor Software Corp., Cancor Research Inc. and Corr (1993), 94 D.T.C. 6102 (Ont. C.A.), refd to. [para. 172].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 175].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 59]; sect. 11(b) [para. 23]; sect. 11(d) [para. 59].

Authors and Works Noticed:

Canadian Bar Association, Code of Pro­fessional Conduct (1988), c. 9 [para. 112].

Law Society of Upper Canada, Rules of Professional Conduct (1996), rules 2 [para. 58]; 4 [para. 129]; 5 [para. 125]; 10 [para. 129].

Mackenzie, G., Lawyers and Ethics (1993), pp. 4-21 to 4-23 [para. 90].

Martin, G.A., The Role and the Responsi­bility of the Defence Advocate (1970), 12 Crim. L.Q. 376, p. 384 [para. 129].

Perell, Paul, Conflicts of Interest in the Legal Profession (1995), p. 5 [para. 126].

Counsel:

William S. Hechter and Frank Addario, for the appellant, White;

Paul Chumak, Q.C., and Andras P. Schreck and Howard Morton, for the appellant, Sennet;

Lucia P. Favret, for the respondent, Crown.

This appeal was heard on May 21 and 22, 1996, by Weiler, Laskin and Charron, JJ.A., of the Ontario Court of Appeal. On March 10, 1997, Laskin and Charron, JJ.A., de­livered the following decision for the court.