roy
2004-10-27 03:00:50 UTC
Docket no. 15743
Nelson, B.C.
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
THE QUEEN
Plaintiff
v.
JOSEPH JACQUES
Accused
REASONS FOR JUDGMENT
THE HONOURABLE MADAM ) Hearing held on 17 May 1999
JUSTICE T. ALEXANDER ) Judgment reserved on 3 September 1999
The accused, Joseph Jacques, has been charged with four counts of having
disobeyed, in contravention of subsection 238(1) of the Income Tax Act,
an order of this Court made by Mr. Justice Paradis on 13 December 1997.
The accused has pleaded not guilty.
The Crown called the following witnesses: Michel Leblanc of Revenue
Canada; Ms. Best, court clerk in the hearing room at the time of
sentencing; and Elaine Hill, a manager of records at the Revenue Canada
Taxation Centre in Surrey.
For its part, the defence called David Strang and Jim Bass. The accused
did not testify.
The Crown argued that Mr. Justice Paradis' order, made on 13 December
1997, required the accused to file his tax returns for the years 1992,
1993, 1994 and 1995 no later than the 31st of March, 1998. Exhibit 3
consists of four documents presented as tax returns for the years 1992,
1993, 1994 and 1995; they are signed by the accused and dated 28 March
1998.
Mr. Leblanc testified that Revenue Canada did indeed receive the
documents in question. However, he added, he removed them from the
records of Revenue Canada because, in his view, the documents as
submitted were incomplete: the accused had written "N/A" to identify his
sources of income and to report all other information required on the T1
form.
The Crown alleges that the documents filed by the accused as income tax
returns do not provide any information and, as such, are not proper tax
returns. The prosecution further alleges that the accused is making a
mockery of the taxation system and is guilty of disobeying a court
order.
The defence, for its part, alleges that the prosecution has failed to
prove the existence of the compliance order. In the alternative, the
defence argues that the documents submitted as tax returns are
sufficient as presented to fulfil the requirements of the Income Tax Act
and the order itself. The two defence witnesses, it is argued, both
filled out their income tax returns in the same manner after facing
similar charges, and Revenue Canada accepted them.
The case at bar is a criminal trial. The prosecution has the burden of
proving every element of the alleged offences beyond a reasonable doubt.
The accused does not have to prove his innocence. Nor is it the role of
the Court to speculate regarding the facts under dispute. The Court's
sole function is to determine, after hearing all of the evidence,
whether the prosecution has met its burden of proof.
In the case before us, we have but two issues to decide: Has the
prosecution proven the existence of the compliance order issued on 13
December 1997 by Mr. Justice Paradis? And, if so, are the documents
submitted as returns, as filed by the accused, sufficient in the sense
that the accused has complied with the requirements of the said order?
As to the first issue, there is more than one way to prove the existence
of a court order; the prosecution is not restricted to those means
prescribed by the Canada Evidence Act.
Construction
36. This Part shall be deemed to be in addition to and not in derogation
of any powers of proving documents given by any existing Act or existing
at law.
To prove the existence of the order in question, the prosecution relied
on the provisions of the Income Tax Act, specifically, subsection 244
(12):
Judicial notice
244(12) Judicial notice shall be taken of all orders or regulations made
under this Act without those orders or regulations being specially
pleaded or proven.
In support of its contentions, the prosecution cited the decision of the
New Brunswick Court of Appeal in R. v. Steen (1976) 30 C.C.C. (2d) 456.
The defence did not base its objections on any authority.
The prosecution also cited the verbal transcripts in this case and
called on the testimony of the court clerk, Ms. Best, who was in charge
of recording the hearing and the sentencing on 13 December 1997. In her
testimony, Ms. Best identified the accused and confirmed that he was
present in the hearing room on 13 December 1997. It was also Ms. Best
who obtained the signature of Mr. Justice Paradis on the court
transcript.
The evidence clearly demonstrates that the accused was subject to a
compliance order issued by Mr. Justice Paradis on 13 December 1997, and
I am convinced of that fact beyond any reasonable doubt. In the order,
Mr. Justice Paradis requires the accused to file his income tax returns
for the years 1992, 1993, 1994 and 1995. I would add that the efforts
made by the accused in filing his T1s and sending them to Revenue Canada
prior to the deadline set out in the order indicate that he understood
his obligations.
It remains to be determined whether the documents submitted as returns
are sufficient to comply with the order issued pursuant to subsection
238(2) of the Income Tax Act, which reads as follows:
Compliance order
238(2) Where a person has been convicted by a court of an offence under
subsection (1) for a failure to comply with a provision of this Act or a
regulation, the court may make such order as it deems proper in order to
enforce compliance with the provision.
The purpose of a compliance order is to rectify the omission of which a
taxpayer has been convicted and to ensure that he fulfils the
requirements of the Act.
In the so-called tax returns filed by the accused, he disclosed his
name, address, date of birth, social insurance number, marital status
and name of spouse. For every item of financial information required,
though, he indicated "N/A". As in Hart (1959) 59 D.T.C. 1192 (Man.
C.A.), cited by the Crown, the accused provided no other information or
explanation.
The fact that Revenue Canada may have accepted similar returns from
other taxpayers does not constitute the test for determining whether the
accused has met the requirements of a court-issued compliance order;
rather, the actions of the accused must be considered in the light of
the purpose of the order and the legislation itself. In R. v. McKinlay
Transport [1991] 1 S.C.R. 636, the Supreme Court of Canada observed
that:
A chief source of revenue for the federal government is the collection
of income tax. The legislative scheme which has been put in place to
regulate the collection of tax is the Income Tax Act. The Act requires
taxpayers to file annual returns and estimate their tax payable as a
result of calculations made in these returns. [...] In essence, the
system is a self?reporting and self?assessing one which depends upon the
honesty and integrity of the taxpayers for its success. [...]
Nonetheless, it would be naive to think that no one attempts to take
advantage of the self?reporting system in order to avoid paying his or
her full share of the tax burden by violating the rules set forth in the
Act.
In the case before us, I am persuaded that the accused did in fact
submit documents as returns for the years 1992, 1993, 1994 and 1995. Mr.
Justice Paradis' order requires that the accused file T1s for the years
indicated. However, as presented by the accused, these documents have no
value as income tax returns because he failed to provide any of the
financial information required on the T1 form.
The conditions of the compliance order are clear. The defence's
contention to the effect that the accused is not under any obligation to
comply with the provisions of section 150 (Returns) of the Income Tax
Act when the return in question is one required by the court runs
counter to the purpose of an order made under subsection 238(2) of the
Act.
Having heard all of the evidence and considered the arguments of
counsel, I am persuaded beyond a reasonable doubt that the prosecution
has met its evidentiary burden.
For these reasons, I find the accused guilty of all counts brought
against him.
(signed)
T. Alexander, PCJ
Nelson, B.C.
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
THE QUEEN
Plaintiff
v.
JOSEPH JACQUES
Accused
REASONS FOR JUDGMENT
THE HONOURABLE MADAM ) Hearing held on 17 May 1999
JUSTICE T. ALEXANDER ) Judgment reserved on 3 September 1999
The accused, Joseph Jacques, has been charged with four counts of having
disobeyed, in contravention of subsection 238(1) of the Income Tax Act,
an order of this Court made by Mr. Justice Paradis on 13 December 1997.
The accused has pleaded not guilty.
The Crown called the following witnesses: Michel Leblanc of Revenue
Canada; Ms. Best, court clerk in the hearing room at the time of
sentencing; and Elaine Hill, a manager of records at the Revenue Canada
Taxation Centre in Surrey.
For its part, the defence called David Strang and Jim Bass. The accused
did not testify.
The Crown argued that Mr. Justice Paradis' order, made on 13 December
1997, required the accused to file his tax returns for the years 1992,
1993, 1994 and 1995 no later than the 31st of March, 1998. Exhibit 3
consists of four documents presented as tax returns for the years 1992,
1993, 1994 and 1995; they are signed by the accused and dated 28 March
1998.
Mr. Leblanc testified that Revenue Canada did indeed receive the
documents in question. However, he added, he removed them from the
records of Revenue Canada because, in his view, the documents as
submitted were incomplete: the accused had written "N/A" to identify his
sources of income and to report all other information required on the T1
form.
The Crown alleges that the documents filed by the accused as income tax
returns do not provide any information and, as such, are not proper tax
returns. The prosecution further alleges that the accused is making a
mockery of the taxation system and is guilty of disobeying a court
order.
The defence, for its part, alleges that the prosecution has failed to
prove the existence of the compliance order. In the alternative, the
defence argues that the documents submitted as tax returns are
sufficient as presented to fulfil the requirements of the Income Tax Act
and the order itself. The two defence witnesses, it is argued, both
filled out their income tax returns in the same manner after facing
similar charges, and Revenue Canada accepted them.
The case at bar is a criminal trial. The prosecution has the burden of
proving every element of the alleged offences beyond a reasonable doubt.
The accused does not have to prove his innocence. Nor is it the role of
the Court to speculate regarding the facts under dispute. The Court's
sole function is to determine, after hearing all of the evidence,
whether the prosecution has met its burden of proof.
In the case before us, we have but two issues to decide: Has the
prosecution proven the existence of the compliance order issued on 13
December 1997 by Mr. Justice Paradis? And, if so, are the documents
submitted as returns, as filed by the accused, sufficient in the sense
that the accused has complied with the requirements of the said order?
As to the first issue, there is more than one way to prove the existence
of a court order; the prosecution is not restricted to those means
prescribed by the Canada Evidence Act.
Construction
36. This Part shall be deemed to be in addition to and not in derogation
of any powers of proving documents given by any existing Act or existing
at law.
To prove the existence of the order in question, the prosecution relied
on the provisions of the Income Tax Act, specifically, subsection 244
(12):
Judicial notice
244(12) Judicial notice shall be taken of all orders or regulations made
under this Act without those orders or regulations being specially
pleaded or proven.
In support of its contentions, the prosecution cited the decision of the
New Brunswick Court of Appeal in R. v. Steen (1976) 30 C.C.C. (2d) 456.
The defence did not base its objections on any authority.
The prosecution also cited the verbal transcripts in this case and
called on the testimony of the court clerk, Ms. Best, who was in charge
of recording the hearing and the sentencing on 13 December 1997. In her
testimony, Ms. Best identified the accused and confirmed that he was
present in the hearing room on 13 December 1997. It was also Ms. Best
who obtained the signature of Mr. Justice Paradis on the court
transcript.
The evidence clearly demonstrates that the accused was subject to a
compliance order issued by Mr. Justice Paradis on 13 December 1997, and
I am convinced of that fact beyond any reasonable doubt. In the order,
Mr. Justice Paradis requires the accused to file his income tax returns
for the years 1992, 1993, 1994 and 1995. I would add that the efforts
made by the accused in filing his T1s and sending them to Revenue Canada
prior to the deadline set out in the order indicate that he understood
his obligations.
It remains to be determined whether the documents submitted as returns
are sufficient to comply with the order issued pursuant to subsection
238(2) of the Income Tax Act, which reads as follows:
Compliance order
238(2) Where a person has been convicted by a court of an offence under
subsection (1) for a failure to comply with a provision of this Act or a
regulation, the court may make such order as it deems proper in order to
enforce compliance with the provision.
The purpose of a compliance order is to rectify the omission of which a
taxpayer has been convicted and to ensure that he fulfils the
requirements of the Act.
In the so-called tax returns filed by the accused, he disclosed his
name, address, date of birth, social insurance number, marital status
and name of spouse. For every item of financial information required,
though, he indicated "N/A". As in Hart (1959) 59 D.T.C. 1192 (Man.
C.A.), cited by the Crown, the accused provided no other information or
explanation.
The fact that Revenue Canada may have accepted similar returns from
other taxpayers does not constitute the test for determining whether the
accused has met the requirements of a court-issued compliance order;
rather, the actions of the accused must be considered in the light of
the purpose of the order and the legislation itself. In R. v. McKinlay
Transport [1991] 1 S.C.R. 636, the Supreme Court of Canada observed
that:
A chief source of revenue for the federal government is the collection
of income tax. The legislative scheme which has been put in place to
regulate the collection of tax is the Income Tax Act. The Act requires
taxpayers to file annual returns and estimate their tax payable as a
result of calculations made in these returns. [...] In essence, the
system is a self?reporting and self?assessing one which depends upon the
honesty and integrity of the taxpayers for its success. [...]
Nonetheless, it would be naive to think that no one attempts to take
advantage of the self?reporting system in order to avoid paying his or
her full share of the tax burden by violating the rules set forth in the
Act.
In the case before us, I am persuaded that the accused did in fact
submit documents as returns for the years 1992, 1993, 1994 and 1995. Mr.
Justice Paradis' order requires that the accused file T1s for the years
indicated. However, as presented by the accused, these documents have no
value as income tax returns because he failed to provide any of the
financial information required on the T1 form.
The conditions of the compliance order are clear. The defence's
contention to the effect that the accused is not under any obligation to
comply with the provisions of section 150 (Returns) of the Income Tax
Act when the return in question is one required by the court runs
counter to the purpose of an order made under subsection 238(2) of the
Act.
Having heard all of the evidence and considered the arguments of
counsel, I am persuaded beyond a reasonable doubt that the prosecution
has met its evidentiary burden.
For these reasons, I find the accused guilty of all counts brought
against him.
(signed)
T. Alexander, PCJ