Upcoming Hearings: Dunne v Quebec and R v Teskey

The Supreme Court’s docket includes hearings today and tomorrow.

In today’s case, Dunne v Quebec (Deputy Minister of Revenue), Mr. Dunne, a resident of Ontario who has never lived or worked in Quebec, is appealing a decision of the Quebec Court of Appeal (see 2005 QCCA 739 (French)). As a retired partner of Ernst & Young, Mr. Dunne draws an annual retirement benefit, paid out of the general revenue of the partnership. The Ministry assessed income tax against Mr. Dunne on a percentage of his benefit equal to the percentage of Ernst & Young’s national revenue which is earned in Quebec. Although the trial judge allowed Mr. Dunne’s appeal, the decision was reversed by the Quebec Court of Appeal, which held that Mr. Dunne was a continuing member of an establishment carrying on business in Quebec, and was therefore liable for Quebec taxes. Mr. Dunne also raised constitutional issues based on the legislation’s extra-territorial effect, an argument which was rejected by the Court of Appeal.

Tomorrow, the Supreme Court will hear R v Teskey, an appeal as of right from the Alberta Court of Appeal (see 2003 ABCA 26). The case deals with the adequacy of oral and written judgments delivered by the trial judge.

Mr. Teskey was convicted of aggravated assault, break and enter, and theft over $5,000 on February 22, 2002. The trial judge delivered his judgment orally, but said that “I have indicated before and I plan on still issuing written reasons within a short period of time.” Teskey filed a Notice of Appeal on March 22, 2002, before the sentencing and before written reasons were issued. His factum, filed in September, 2002, outlined four grounds of appeal based on the judge’s oral decision. The judge’s written reasons were issued on January 29, 2003. Teskey was finally sentenced on February 28, 2005 and found to be a dangerous offender.

The majority of the Court of Appeal held that although the judge’s oral reasons were inadequate, the written reasons did meet the required standard. They also held that there was no reasonable apprehension that the trial judge had tailored his reasons to address the grounds of appeal in Teskey’s factum.

Justice Berger dissented, arguing that the delay in issuing reasons was fatal. He suggested that the inoridinate length of time that passed before the reasons were issued, the fact that they were issued long after the Notice of Appeal (to which the trial judge had access) was filed, the way the reasons seemed responsive to the grounds of appeal. Although the majority had suggested that in the face of unequivocal evidence of unfairness, a “presumption of regularity” should prevail, Justice Berger asks what more the appellant could do to support his contention that there was an appearance of unfairness.

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