Two of the four cases cited related to situations where the Canadian government tried to take a short cut in the process of proving that a taxpayer had not filed a tax return. They most assuredly do not establishe that no tax was due in the absence of a SIN:
R. v Layne
http://www.courts.gov.bc.ca/jdb-txt/sc/ ... 8-0112.txt
R v. Naudi
http://www.provincialcourt.bc.ca/judgme ... 3_0453.htm
(I was unable to download the other two cited cases because of problems with the BC Provincial Court's judgments database, but I will do so in the future.)
The
Layne holding have been limited to it's facts as the following cases, most of which involve Canadian TP types, establish:
http://www.courts.gov.bc.ca/jdb-txt/CA/ ... CA0337.htm
http://www.courts.gov.bc.ca/jdb-txt/SC/ ... 31cor1.htm
http://www.courts.gov.bc.ca/jdb-txt/sc/ ... sc1585.htm
http://www.courts.gov.bc.ca/jdb-txt/sc/ ... sc1493.htm
Finally, I note that
R v Larsen was reversed by the BC Supeme Court:
http://www.courts.gov.bc.ca/jdb-txt/sc/ ... sc1867.htm
IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: R. v. Larsen
2005 BCSC 1867
Date: 20051215
Docket: 57945-2
Registry: Kelowna
REGINA
v.
ROBERT JOHN KONRAD LARSEN
Before: The Honourable Mr. Justice Brine
Oral Reasons for Judgment
December 15, 2005
Counsel for the Federal Crown:
J. Hyman
Appearing on his own behalf:
R.J.K. Larsen
Place of Trial/Hearing:
Kelowna, B.C.
[1] THE COURT: This is an appeal of an acquittal on three counts of failing to comply with the requirements to file a return against the respondent. The appeal raises two issues. First is the admissibility of statements made by the respondent to a C.C.R.A. field officer, and the second, whether the Crown must prove that a person has a specific social insurance number in order to prove that they have not filed a return.
[2] The respondent was charged with three counts of failing to comply with requirements to file returns which have been served on him pursuant to s. 231.2 of the Income Tax Act, contrary to s. 238 of that Act, by not providing tax returns and statements of income and expenses for the years 2000, 2001 and 2002. Section 231.2(1) of the Act provides:
Notwithstanding any other provision of this Act, the Minister may, subject to subsection (2), for any purpose related to the administration or enforcement of this Act, including the collection of any amount payable under this Act by any person, by notice served personally or by registered or certified mail, require that any person provide, within such reasonable time as is stipulated in the notice,
(a) any information or additional information, including a return of income or a supplementary return; or
(b) any document.
[3] Section 238(1) of the Act provides:
Every person who has failed to file or make a return as and when required by or under this Act or a regulation or who has failed to comply with subsection 116(3), 127(3.1) or 127(3.2), 147.1(7) or 153(1), any of sections 230 to 232 or a regulation made under subsection 147.1(18) or with an order made under subsection 238(2) is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to
(a) a fine of not less than $1,000 and not more than $25,000; or
(b) both the fine described in paragraph 238(1)(a) and imprisonment for a term not exceeding 12 months.
[4] On January 21, 2005, a trial commenced on Information 57945 in the Provincial Court of British Columbia in Kelowna. The respondent appeared on his own behalf at trial and pleaded not guilty to each of the three counts. The Crown's case consisted of one witness who had been employed in the Penticton office of the C.C.R.A. as a field officer. This individual, Mr. Ambler, first took charge of the file with respect to the respondent, and when he did so it contained the following information: That the file pertained to a person named Robert John Konrad Larsen. That Robert John Konrad Larsen, whose social insurance number was 714 671 260. That the address of Robert John Konrad Larsen was 26 - 3737 Gellatly Road South, Westbank, B.C. Robert John Konrad Larsen's date of birth was April 21, 1956. Robert John Konrad Larsen was employed by a water supply company by the name of Eco Water, and Hannah Chesher, a collections officer with the C.C.R.A., had attempted to contact Robert John Konrad Larsen.
[5] With respect to the admissibility of the statements, there are two or actually three sub issues. First is whether or not the statements were made to a person in authority, and if so, were they voluntary, and as a collateral issue, was a warning required in the circumstances of this case.
[6] The background of the statements is that in September 2003, Mr. Ambler went to the address at 26 - 3737 Gellatly Road South, Westbank, B.C., which is a townhouse unit, with the intention of meeting with the respondent. On his arrival at the Gellatly Road South address, Ambler knocked on the door. It was answered by a woman. Ambler asked for Mr. Larsen and the woman re-entered the residence.
[7] A short while later, a man appeared at the door, that would be the respondent appeared at the door. Ambler had a conversation with the respondent and then served him three notices of requirement to file addressed to the respondent, which requirements obliged the respondent, pursuant to s. 231.2(1) of the Act, to file income tax returns and statements of income and expenses for the years 2000, 2001 and 2002 within ninety days, and to be sent to the attention of Ambler at the tax office in Penticton.
[8] The conversation and circumstances of Mr. Ambler's conversation with the respondent, which were the subject of a voir dire in the trial, are as follows: As the respondent approached the door to the residence, Ambler asked, "Are you Robert Larsen?" The respondent replied, "Yes," at which time, or during which time Mr. Ambler extended his hand to shake that of the respondent. Mr. Ambler showed a C.C.R.A. identification card to the respondent and provided him with a business card. Ambler explained that he was at the residence with regard to unfiled tax returns for the years in question, that is, 2000, 2001, 2002.
[9] Ambler asked if the respondent was aware of the unfilled tax returns and the respondent replied that, "I haven't had any reportable income." Ambler asked the respondent why he did not file the returns on time and the respondent replied, "That does not matter." Ambler asked if the respondent was working and the respondent said no. When asked when he last worked, the respondent replied, "About six months ago, but that doesn't matter." The respondent said that he had an appointment with Hannah Chesher of the collections department, and Ambler replied he was concerned with the unfilled tax returns, not an income tax debt.
[10] The respondent indicated that he no longer wished to speak to Ambler and attempted to close the door. Ambler prevented the closure by putting his foot in the door and served the respondent with the requirements. As he left the residence, Ambler noted that certain Eco Water decals were attached to a car parked in the driveway of the residence.
[11] Whether a person is a person in authority is dependent on the accused's subjective perception of that person. In Grandinetti, the Supreme Court of Canada Madam Justice Abella, said at ¶38:
The test of who is a “person in authority” is largely subjective, focusing on the accused’s perception of the person to whom he or she is making the statement. The operative question is whether the accused, based on his or her perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment.
[12] In my view, the opening words of the conversation cannot be said to have been made by the respondent to a person in authority. The respondent did not know who Ambler was, had no idea who he represented or the purpose of his visit. The portion of the conversation, therefore, where Ambler asked, "Are you Robert Larsen?" and the respondent's response was, "Yes," ought to have been admitted.
[13] Thereafter, the conversation between the respondent and Ambler is one between a person and an officer or agent of the state. I am not convinced, however, that Ambler is a person in authority. There is, I think, some merit to the Crown's position that it is difficult to be a person in authority regarding an investigation of an offence when, firstly, no offence has occurred, and secondly, it is quite possible that no offence may ever occur.
[14] For the purposes of this analysis, however, I do not propose to determine the issue one way or the other. I am proceeding on the assumption that Ambler was a person in authority and that the Crown was, therefore, obliged to prove that the statements made by the respondent were made voluntarily.
[15] The trial judge found that the respondent had not been detained. The judge did conclude, however, that the statement was involuntary because the respondent did not receive a warning from Ambler in order that he might be able to appreciate the level of his jeopardy. As I said, there had been no detention. In my view, in those circumstances, a warning is not required.
[16] The basis of the confessions rule is reliability. The analysis of whether a statement was or was not made voluntarily requires an examination of the circumstances surrounding the statement in order to determine whether there is any reasonable doubt that the statement was made voluntarily.
[17] R. v. Oickle describes a number of possible circumstances which might give rise to a determination that a statement might not be made voluntarily. At ¶69, Mr. Justice Iacobucci states:
Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.
[18] Here, the lack of voluntariness is found only from the failure to provide a warning to the respondent by Ambler. I conclude that the circumstances in place at the time of the conversation between Ambler and the respondent were not such as required a warning. I am also of the view that none of the hallmarks of situations which might give rise to a determination that the statements made by the respondents were not made voluntarily are present. Indeed, the circumstances lead me to the opposite conclusion.
[19] I find, therefore, that the exclusion of the introductory remarks was improper, as they were not made to a person in authority. I also find that the exclusion of the balance of the statements of the respondent was improper as they were made voluntarily.
[20] I am aware that a finding of voluntariness is a factual one, or may be a factual one, generally, and ought not to be overturned unless there has been some palpable and overriding error affecting the judge's assessment of the facts. In my view, a determination that a warning was required was a palpable and overriding error and clearly affected the judge's assessment of the facts. The statements should have been permitted into evidence in their entirety.
[21] Secondly, must the Crown prove that a person has a specific social insurance number in order to prove that they have not complied with a request to file a return? The Act requires, in effect, that the Crown must prove three essential elements. Firstly, the identity of the accused; secondly, proof of service of the request; and thirdly, proof of failure to comply. If these are proved, a rebuttable presumption arises. It may be rebutted by evidence to the contrary.
[22] Under the relevant sections of the Income Tax Act, proof of failure to file may be proved by filing an affidavit of an officer of the Department of National Revenue. This affidavit becomes proof of the offence in the absence of evidence to the contrary. The authorities hold that in such cases strict compliance with the section permitting the admission of the evidence is required, referring to Layne. Only affidavit evidence of personal knowledge is permitted. Here I refer to R. v. Layne at ¶23, a decision of Madam Justice Bennett, where she said:
In my opinion when the Crown is permitted to prove a case against an accused on the basis of affidavit evidence and that evidence becomes proof of the offence, (as in this statute), in the absence of "proof to the contrary", then there must be strict compliance with the section permitting the admission of the evidence. I agree with Barnet J. in the Brecknock case above wherein he held that only affidavit evidence of personal knowledge was admissible in this type of case. It would have been a very simple matter for Ms. Hill to simply confirm in the records the information that she had been provided by Mr. Blackwell. There is no evidence that she did so. In my opinion, once it has been established that she has received some information on the basis of hearsay, then there is an obligation on the Crown to lead evidence that she also has that information from her own personal knowledge.
[23] In this case, the notices served on the respondent required him to deliver the returns to Ambler. Ambler's evidence in that regard is that he received no returns and it is based on his personal knowledge.
[24] As to Ambler's search of the computer system, he did so personally. He looked up the respondent's social insurance number personally, he obtained information which appeared to link the individual whose records he was searching with the respondent. In short, it appears that Ambler likely had sufficient personal knowledge of information linking the respondent to the person whose records were searched. That person did not file returns as requested and, in the absence of proof to the contrary, would be evidence of the respondent's failure to comply.
[25] However, I am also of the view that the failure to admit the statements of the respondent to Ambler is sufficient to require a new trial. It would not be appropriate to prevent the respondent from defending the charges against him as he sees fit and defending them in their entirety.
[26] I am, therefore, directing that the acquittals be set aside and the matter be remitted to Provincial Court for a new trial.
[27] MS. HYMAN: Thank you, My Lord.
[28] THE COURT: All right.
“D. Brine, J.”
The Honourable Mr. Justice D. Brine
You'll do as well here as you do over at the Ickes.....lol.