http://www.mediafire.com/view/i2m5cbw91 ... r2015).pdf
The standard Poriskyite promoter indictment, False statements on income tax returns, income tax evasion and Goods and Services tax evasion, and counseling to commit fraud. But this just relates to his more recent activities. I mentioned the word "Detaxer" in the title so let's look at that aspect of his life before getting to current events. Who were the detaxers? Let their own website explain;
http://www.detaxcanada.org/intro.htm
Very basic, hasn't changed much since I first saw it in the early 2000s. Far more informative is this goldmine, the Topica Archive that Canada's detaxers used as a central clearing house to discuss strategies, analyze failures, and plan future action;
http://lists.topica.com/lists/Important/read
Essentially detaxers were the precursors to the Freeman tax protesters but far more organized and competent. They felt that taxes were not legal and fought against them with various theories and court actions. All failed and the movement (if it can be called such) dissipated with followers moving on, some to the Porisky Paradigm scheme. This is where Millar ended up.
I initially planned to have one posting covering a review of Millar's past jurisprudence then cover his current issues and my attendance at his hearings. However my review of the prior Millar cases (husband and wife) ballooned to such a size that I'm doing it in two steps. History in this posting, current events in the second.
So first we'll review Michael's past cases then move on to his wife Teresa. Detaxing is a family affair. First up;
Her Majesty the Queen v. Millar, 2002 BCSC 182 (Feb. 5, 2002)
http://canlii.ca/t/1gnbx
This is in the Supreme Court of British Columbia and starts;
The decision appealed from was a stupid decision by a judge who misunderstood the law and precedence. There was no question that Millar had failed to comply with the notice sent by the CRA. But the judge figured the notice wasn't valid because it had been signed by the wrong guy.[1] On May 24, 2001, Mr. Millar was acquitted in the Provincial Court of four counts of the charge of failing to comply with a notice to provide the Minister of National Revenue with tax returns. The notices required Mr. Millar to file returns for the years 1994 to 1997. The Crown appeals the acquittals.
And why was it the wrong guy;[6] A number of defences were raised by Mr. Millar. The trial judge rejected all but one of them. The charges were dismissed on the ground that Mr. Purda was not identified on the face of the notices as a “Director-Taxation of a District Office.” The learned trial judge held that the Mr. Purda’s title as set out in the notices was not “an office with authority to issue Requirements pursuant to Regulation 900.”
[4] Mr. Millar was served with four notices, one for each year, requiring him to produce his income tax returns. The notices were issued over the signature of John Purda. Below his signature was the title, “Director Burnaby/Fraser Taxation Services Office”. At the time Mr. Purda was in fact a “Director-Taxation” and the office in which he was employed is a District Office.
There was no question that John Purda was the correct person authorized under the Income Tax Act to sign the notices so the requirements of the Act had been met but the trial judge decided to add another requirement not stipulated in the Income Tax Act. Purda's correct job title had not been given in the line under his signature. This was irrelevant because the Income Tax Act does not require that the proper administrative position of the signatory be included in the notice, just that it is signed by the right person. It would have been entirely legally valid if the line under Purda's name had said "President of the Buck Rogers Rocket Ship Captains Club". The result was that the trial judge let Millar off because the CRA had not met a legal requirement regarding the notices that did not exist apart from inside the judge's head.
So the appeal court judge decided;
So on to;[13] In both Galbraith and the case before me there is no confusion or ambiguity as to the identity of the signatory. Mr. Purda in the instant case is identified sufficiently. It is not necessary in this case for me to go further and decide whether the absence of any title on the face of the letter would affect its validity so long as the signatory in fact holds the position designated in Regulation 900(2).
[14] As a result, I conclude that the trial judge was in error in holding that because of the insufficient identification of Mr. Purda’s position on the face of the notices, the notices did not meet the requirements of the Income Tax Act.
[15] I have reviewed the trial judge’s reasons. It appears to me that the trial judge found that all other elements of the offences had been made out by the Crown and the other defences of Mr. Millar could not succeed. For that reason I am satisfied that the Crown’s appeal should be allowed and the verdicts of acquittal on all counts should be set aside.
[16] The Crown has urged that, rather than ordering a new trial, verdicts of guilty should be entered against Mr. Millar. I am satisfied that in this case this is the appropriate order.
[17] This matter will therefore be remitted to the trial court to impose a sentence that is warranted in law.
R v Millar, 2002 BCCA 604 (Nov. 5, 2002)
http://canlii.ca/t/5ggs
Millar figured if you don't succeed try again. So he went with the same argument to the Court of Appeal for British Columbia which disposed of his attempt in very short order.
However this wasn't quite the end of the story. Millar, obsessed that he was right, appealed this one too. He had not been heard by the formal Court of Appeals for British Columbia which has a three judge panel but by a single judge in Chambers whose function was to cut out the obvious losers before they wasted real court time. Millar thought that he had the right to appeal a Chambers decision. So he appealed to the panel which disabused him of that belief in very short order.[1] This is an application for leave to appeal from the verdicts of guilty pronounced by the British Columbia Supreme Court on 6 February 2002 on a summary conviction appeal by the Crown from the appellant’s acquittal in provincial court.
. . . . . . . . .
[7] To succeed on an application for leave to appeal in these circumstances, the applicant must show that there was an error by the summary conviction appeal judge which raises an issue of law alone; that the appeal is one of general importance; and that there is a reasonable possibility of success.
[8] The summary conviction appeal judge held that Regulation 900(2) did not impose a statutory requirement that the exact words of “Director-Taxation in a District Office of the Department of National Revenue” be used. The judge also held that there was no ambiguity as to the identity of the signatory. He found Mr. Purda was a “Director-Taxation” and the office in which he was employed was a District Office.
[9] These findings are supported by the evidence of Ms. Tish Woode, a witness called by the Crown.
[10] The applicant argued that the evidence of Ms. Woode was hearsay and should not have been relied on by the summary conviction appeal judge. The evidence as to the job title of her superior was within Ms. Woode’s personal knowledge. It was not hearsay. The applicant did not object to this evidence at trial which was elicited in both direct and cross examination as shown in the transcript.
[11] Mr. Millar ably argued his application in person. At the hearing he was unable to identify for me a question of law alone which he would seek to raise on the appeal. Having given the matter further consideration, I have been unable to detect any such question of law alone myself.
[12] Whether the letters of 2 November 1998 are invalid or ineffective because they do not adequately or correctly identify Mr. Purda’s authority, is a question of mixed fact and law. I cannot see any other issue that would meet the test.
[13] I would refuse leave to appeal.
R v Millar, 2003 BCCA 78 (Jan. 15, 2003)
http://canlii.ca/t/5dnl
But, just to rub it in, the panel pointed out that even if he could have appealed it they would have just squashed him like a bug anyhow;[1] PROWSE, J.A.: This is an application on behalf of the federal Crown seeking to have Mr. Millar’s motion for an extension of time to review the order of the Chief Justice quashed on the basis that a panel of three members of this Court does not have jurisdiction to review the decision.
[2] The manner in which this application arose is that Mr. Millar was initially acquitted of charges under the Income Tax Act by a Provincial Court judge. The Crown appealed that decision to the Supreme Court, and the Supreme Court justice substituted convictions on the four counts. Mr. Millar then sought leave to appeal the decision of the Summary Conviction Appeal Court to this Court. That application was heard by Chief Justice Finch. In reasons for judgment dated November 5, 2002, Chief Justice Finch dismissed Mr. Millar’s application for leave to appeal from the Summary Conviction Appeal Court. He dismissed the application primarily on the basis that Mr. Millar had not identified a question of law alone on the appeal, but rather that the issue Mr. Millar raised involved questions of mixed fact and law.
[3] On December 13th, Mr. Millar brought on an application seeking an extension of time in which to seek a variation of the order of the Chief Justice. It was that motion which triggered the Crown’s motion which is before me today.
[4] The question of whether or not there is jurisdiction in a panel of this Court to review the decision of a single justice on an application for leave to appeal in a summary conviction matter has now been resolved definitively by the decision of this Court in R. v. Stojanovski, (2002) B.C.J. No. 2863. The Court in that case held that there is no jurisdiction in this Court to review the decision of a single justice in that regard. That decision followed upon earlier decisions which, as Mr. Millar noted, might have cast some doubt on whether or not this Court had such jurisdiction. As I say, the matter has been laid to rest by the Stojanovski decision.
So on to Teresa Ellen, Michael's wife and fellow-traveler.[5] Mr. Millar sought to raise arguments before me that he had not been granted a fair hearing or fair process before Chief Justice Finch. He indicates that he was told something by a justice in chambers on a 13(3) reference which led him to believe that he would have to come prepared on his application for leave to appeal to argue the appeal as a whole. He says that when he appeared before Chief Justice Finch he was advised that that was not the case. Mr. Millar says he does not feel that he was given sufficient guidance by the Chief Justice to indicate how he should proceed. He said there was an unfairness in the process which, in his view, should be the subject of review. He reads the cases decided by this and other courts as leaving a doorway open for special circumstances in order to seek a review. He also says that his circumstances amount to special circumstances.
[6] Apart from the fact that this Court has no jurisdiction to review, as already stated, I note that the Chief Justice stated in his reasons that:
Mr. Millar ably argued his application in person. At the hearing he was unable to identify for me a question of law alone which he would seek to raise on the appeal. Having given the matter further consideration, I have been unable to detect any such question of law alone myself.
[7] The Chief Justice then went on to make the finding that the question which Mr. Millar was seeking to raise was a question of mixed law and fact.
[8] In the circumstances, I am satisfied that the application by the Crown should be granted, and that Mr. Millar’s application for an extension of time to vary the order should be quashed.
R v Millar, 2002 BCPC 145 (April 11, 2002)
http://canlii.ca/t/5std
This is just a decision on a technicality, the manner in which the Crown can appeal a judge's ruling made during the course of a trial. Teresa tried to enter some form of disclosure into evidence, the Crown objected and the judge overruled the objection. The Crown wanted to appeal the ruling before the trial continued because they felt that it was pointless to appeal after the trial since the disclosure would have been reviewed by the trial judge regardless of how the appeal went. The judge declined the Crown's request to stay proceedings to let them appeal.
So the Crown found a prior decision by a higher British Columbia court that said what they wanted to do was appropriate. The judge agreed;[2] What the prosecution has asked the court to do today, Mrs. Millar, is that they have asked me to issue a stay of proceedings so that they can bring the issue of the correctness of my ruling with respect to disclosure before the Supreme Court, which is an appeal level of court. That is the court that probably would end up with the appeal of this matter, should we proceed directly through.
[3] The prosecution says that it wants to pursue this matter of appealing my ruling because, in the event that we press ahead now with the trial and the opinions are disclosed, the basis of the objection of privilege is lost, because it will be waived. Once it is out of the bag, it does not get back in again.
[4] As I indicated earlier, I thought that was not the best way to proceed, because normally what happens during the course of a trial is that somebody who is unhappy with a ruling made during the course of a trial has to wait until the end of the trial before deciding whether they can appeal or not. You do not appeal a ruling, you appeal a finding at the end of a case; guilty or not guilty. The ruling is made during the course of a trial. So this is a very unusual thing that the Crown is asking the court to consider. My first reaction was that is not an appropriate way to proceed.
On to the appeal.[5] Madam Justice Ryan, in the British Columbia Court of Appeal, however, approved of this way of proceeding in the Creswell decision, where a similar sort of ruling was made by a trial court in that case. The manner of the Crown's proceeding in persuading the trial judge to issue a stay of proceeding and appealing right away rather than waiting until the outcome of the case was known was raised before the Court of Appeal. It was argued and Madam Justice Ryan and the other two judges sitting with her approved this as a practical way to deal with a practical problem. That is, how do you get a ruling on a matter like this, which, if the ruling is obeyed, the significance of an appeal is lost as of right away?
[6] So I am going to follow that procedure. I think it was approved by the Court of Appeal in the Creswell decision and I am going to direct a stay of proceedings. At this point this will be my stay of proceedings. I expect that the Crown will be filing its appeal in the Supreme Court. You will have an opportunity to have your say on whether the ruling that I have made is an appropriate one in the Supreme Court. Whether the Supreme Court says yes, this is an appropriate ruling, or this is not an appropriate ruling, there will be some direction from the Supreme Court about the manner in which the case will follow from there.
[7] The Crown, again, will have an opportunity along the way to decide whether or not they still wish to proceed, and that is a matter within their discretion. They are the prosecuting authority and it is their job to make that decision.
[8] So I am directing a stay of proceedings. Until I have some further direction from the Supreme Court, that is it.
R v Millar, 2002 BCSC 958, (June 25, 2002)
http://canlii.ca/t/5jhk
Whoops! Turns out it was more than a ruling on a technicality but a major error on the part of the trial judge and one which would have had very significant ramifications for the Crown if his ruling had stood. The judge, in an overzealous attempt to make sure that all of Teresa's rights were respected, decided to throw the Crown's right to solicitor-client privilege right out the window and allowed Teresa to strip-mine the Canada Revenue Agency and the Department of Justice for anything she wanted. Essentially an open-ended fishing expedition though the government's files.
Sounded great to the judge, why not make the CRA publicly reveal everything they had about their ongoing reviews of all detaxers?;[7] The Respondent was represented at trial by her husband, Michael Millar.
[8] Before any evidence was called, the Respondent applied for disclosure of legal opinions provided by the DOJ to the CCRA or to agents conducting prosecutions on behalf of the DOJ.
[9] The Respondent’s disclosure application was described by the trial judge as follows:
[10] Mr. Millar indicated an intention to make an application for a judicial stay of proceedings on the basis of an abuse of process. The abuse of process alleged was that Mrs. Millar was selectively prosecuted because she was identified to be part of a tax protest group.[14] This is what is requested. I am quoting from a letter dated March 6, 2002 from Mr. Millar on behalf of his wife to the prosecutor. Amongst other things, this is what is requested in paragraphs 3 and 4, and these are the subject of the present dispute and the present ruling: Paragraph 3, copies of all legal advice/opinions from the Department of Justice to CCRA regarding (a) the use of the non-authorized and non-prescribed demand letter format; (b) the use of non-authorized and non-prescribed T1 forms; (c) the handling of information requests from detax, tax protestor or other difficult situations; (d) the handling of prosecutions regarding detax, tax protestor or other difficult situations; (e) and general advice regarding detax, tax protestor, or other difficult situations; Paragraph 4, copies of all legal advice/opinions from the Department of Justice to the Crown regarding: (a) the handling of information requests from detax, tax protestor, or other difficult situations; (b) the handling of prosecutions regarding detax, tax protestor, or other difficult situations; and (c) any general advice regarding detax, tax protestor, or other difficult situations.
[11] The Respondent argued that the legal opinions requested should be disclosed on the basis that (if they exist) they would be relevant to the abuse of process argument.
[13] In arguing the relevance of the request for internal advice from the DOJ to its prosecutors, Mr. Millar referred to specific incidents which had occurred prior to the trial to suggest that she was not being treated well by prosecutors and that this led her to ask what advice the prosecutors were receiving from the DOJ in regards to detax cases.
The Supreme Court of British Columbia was not happy with the trial judge's ruling. It had problems both with the relevance of the documents to the proceeding and to the breach of client-solicitor privilege disclosure would require. First to relevance;[14] The Honourable Judge Antifaev held:
[18] I think, however, that it is at least arguable that the documents referred to in paragraphs (c), (d) and (e), so far as they relate to detax or tax protesters, may have some bearing on the factual basis which might or might not form support for Ms. Millar’s argument in favour of a judicial stay of proceedings in this case. I make the direction that those documents, so far as they relate to the handling of information or prosecutions or general advice regarding detax persons or tax protestors will be disclosed.
[19] With respect to paragraph 4, in my view, all of the documents sought to be disclosed should be disclosed because they may possibly form the basis of an argument in favour of the stay of proceedings being advanced here, so far as these documents relate to detax persons or tax protestors.
[20] I state, as well, that in view of the evidence that has been advanced before me that this particular situation, that is, the question of persons being identified as belonging to any detax or tax protestor organization started to arise in the late summer of 1998, I will confine that order to any legal advice or opinions given from the start of June of 1998 to the present.
[21] So far as paragraph 4 refers to legal advice or opinions flowing from the Department of Justice to the Crown are concerned, my directive refers to any legal advice from lawyers on behalf of, or employed by, the Department of Justice to its front-line prosecutors. The Crown is an expression that can encompass anybody who is employed by the Crown. It is necessary for this order to be limited in this fashion, in order to allow the defence to advance and to focus the argument, and to allow the Crown to focus its search for those documents which will allow the defence to advance the argument.
Note the reference to Dr. Lenard-Zephirin, I'll be getting back to him.[38] I agree with Crown Counsel that the documents the Respondent brought before the trial judge reveal no trace of oblique motive or improper purpose on the part of the CCRA or the Crown. The documents show the CCRA was aware of the existence and tactics of “tax protesters” and had considered how this might affect the administration and enforcement of the Act. This cannot, in my view, support an abuse of process argument. On this appeal the Respondent produced an affidavit from Dr. Lenard-Zephirin which may be evidence for a trial judge to consider. It is not, however, my role to consider its contents on this appeal.
[39] I also agree with Crown counsel that the only differences between the material before the Court of Appeal in McMordie and the material before the trial judge in this case were:
(a) a note indicating that the CCRA had sought advice from the DOJ on dealing with the employee questionnaire;
(b) Exhibit “H” contained material of a similar nature to Exhibit “C”; and
(c) the material relied on mentioned McMordie by name, but did not mention the Respondent.
[40] I also agree with Crown counsel when she states that there was nothing in the material before the trial judge (or the Court of Appeal in McMordie) that suggested that the Respondent had been prosecuted for any reason other than that she had failed to comply with the Act. The McMordie decision makes clear that there is no immunity from prosecution for failing to comply with the Act because one acts out of “political beliefs” rather than “self-interest” or is identified as a tax protester.
iii. Conclusion on the relevance issue
[41] It is not open to the trial judge to overrule the Court of Appeal in McMordie and order disclosure of the requested documents. After reviewing the law as enunciated above, it is my view that the documents that were requested by the Respondent were simply not relevant. The demand for disclosure by the accused was in my view obstructive, speculative, fanciful and unmeritorious. In my view opinions and advice relating to other cases, provided after the decision to prosecute was made in this case, cannot be relevant to the Respondent’s selective prosecution argument. Even if logical relevance has been established, the evidence is nevertheless excluded because its probative value is overreached by its prejudicial impact in the circumstances of the case at bar. I arrive at this conclusion even after considering the low threshold requirement for disclosure.
On to solicitor-client privilege;
However the Supreme Court of British Columbia judge made an error in his next paragraph;[43] It is perhaps unfortunate that the learned judge’s attention was not drawn to R. v. Brown (2002), 2002 SCC 32 (CanLII), 162 C.C.C. (3d) 257 (S.C.C.). Brown reiterates the fact that the solicitor-client privilege is a hallowed principle of the law and that the innocence at stake exception is a stringent one. It also establishes that the occasions when the privilege yields to the innocence at stake exception would be very rare indeed.
But he'd clearly stated earlier that Michael was representing Teresa. If that doesn't count as counsel what does?[44] Because the Respondent is unrepresented by counsel, however, it may be prudent for me to canvass some of the law in this area.
The next part of the decision is a long review of precedence and an analysis of prior caselaw. I'll pass on that and get to the meat;
I mentioned fishing expedition?F. Analysis
[68] I agree with the Crown that in the trial judge’s decision and in argument before her, no distinction was made between the privilege associated with opinions and legal advice from the DOJ to the CCRA and with opinions and advice in internal DOJ communications. It appears to have been correctly accepted by the trial judge, however, that both types of advice were privileged: Idziak v. Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 S.C.R. 631.
[69] In Idziak, supra, the court considered whether or not an internal memorandum submitted to the Minister when considering whether or not to exercise the discretion to refuse to extradite, pursuant to the Extradition Act, s.25, ought to be produced. Justices Cory, L’Heureux Dubé and Iacobucci J. were of the view that the document was subject to solicitor/client privilege. Justices Lamer, McLachlin and Sopinka specifically reserved judgment on this issue to another case, disposing of the appeal on alternative grounds. Justice La Forest emphasized that the Minister was engaged in making a policy decision and that accordingly she was entitled to the confidential views of her officials, thus making a ruling on the issue of solicitor/client privilege unnecessary.
[70] After reviewing the judgment of the learned trial judge, however, it becomes clear that she did not follow the steps with respect to the innocence at stake exception to solicitor-client privilege laid down so clearly in McClure and Brown. The trial judge’s disclosure ruling was, in my view, premature and overly broad.
Instead of just telling the trial judge to drop the ruling the Supreme Court apparently decided that the whole process had become too tainted to continue;[71] The trial judge’s disclosure order goes far beyond the parameters of this case. The disclosure order covers all of Canada for a period of over four years. Opinions provided to the CCRA by the DOJ in Nova Scotia and internal DOJ communications relating to such a prosecution are thus covered by the disclosure order, even though no member of the CCRA or the DOJ involved in this prosecution was aware of them. The order is also overly broad by time, as it includes opinions and advice provided by DOJ after charges were laid in this case in May 2001. This type of broad disclosure is also contrary to the type of disclosure that is suggested by the Supreme Court of Canada if it is established that the innocence at stake exception to solicitor privilege should apply: see McClure, Brown and Smith v. Jones, supra.
[72] Apart from that, I agree with Crown counsel when they assert that the trial judge erred when, instead of applying the test set out in McClure, she set aside the privilege on the basis that “it was at least arguable” that the material requested “may have some bearing” on the Respondent’s application for a stay of proceedings. I agree that in doing so, she erred in law by failing to apply the standard required by the Supreme Court of Canada.
As is the Millar's habit they appealed this decision for a myriad of reasons. Essentially "It's So Unfair"G. Disposition
[73] In view of the foregoing, I order that the stay of proceedings be set aside and a new trial ordered.
R v Millar, 2003 BCCA 164, 57 DTC 5524 (March 17, 2003)
http://canlii.ca/t/5cn0
So what was Teresa complaining about this time;[1] This is an application for leave to appeal the order of a summary conviction appeal judge (the "appeal judge") allowing a Crown appeal of an order made by a Provincial Court judge (the "trial judge") staying the proceedings against the applicant. The reasons of the appeal judge setting aside the stay of proceedings and ordering a new trial may be found at 2002 BCSC 958 (CanLII).
[2] Leave to appeal a summary conviction matter to this Court will be granted if the proposed ground of appeal raises a question of law alone, the issue raised is one of general importance, and an appeal on the point has a reasonable possibility of success: R. v. Westwood (1995), 63 B.C.A.C. 236, [1995] B.C.J. No. 2146 (Q.L.) (C.A.).
[3] Crown counsel concedes that some of the proposed grounds of appeal raise issues of law alone but submits that leave ought not to be granted because none of the grounds raises issues of general importance and none has a reasonable prospect of success.
Note;[20] Following the Crown's successful appeal, Ms. Millar filed an application for leave to appeal to this Court which sets out a number of grounds of appeal. I have restated the grounds and have inserted the number or numbers in brackets which correspond to the numbering of the grounds set out in Ms. Millar's leave application. The grounds of appeal on which Ms. Millar seeks leave are these:
(a) The appeal judge displayed bias against the applicant (#1).
(b) The appeal judge erred in refusing the applications for intervener status (#2 & #3).
(c) The appeal judge erred in finding facts contrary to those found by the trial judge (#4).
(d) The appeal judge erred in law in limiting his consideration of relevance to the issue of selective prosecution (#5).
(e) The appeal judge erred in law in not distinguishing the decisions of this court in McMordie and Bruno (#6).
[21] On the first ground, Ms. Millar submitted that the following matters would support her contention that the appeal judge displayed bias:
(a) The appeal judge concluded, based on an affidavit filed by one of the applicants for intervener status, that Ms. Millar appeared to be a member of the Canadian DeTax Group.
(b) The appeal judge concluded that the demand for disclosure was "obstructive, speculative, fanciful and unmeritorious".
(c) The appeal judge did not provide adequate assistance to Ms. Millar as to the remedies available to her.
(d) The appeal judge did not hear oral arguments from all the applicants for intervener status, and shortened the time for oral argument for those he did hear.
This goes back to a prior paragraph in this decision;(a) The appeal judge concluded, based on an affidavit filed by one of the applicants for intervener status, that Ms. Millar appeared to be a member of the Canadian DeTax Group.
I have no idea what this is all about but I assume that Dr. Lenard-Zephirin was one of the four interveners and the affidavit is the one noted in my review of the appeal decision.[11] After the Crown appeal had been brought, four individuals applied for leave to intervene in the summary conviction appeal but their applications were dismissed. The decision refusing the application for intervener status was given by the judge who later heard the summary conviction appeal.
The Court of Appeal of British Columbia had no problem stomping on Teresa's complaints;
And that's it. No information if there was a new trial or, if there was, what happened. A few points based on these cases. First note the reference to McMordie just above. Kenneth Robert McMordie, aka Byron Fox, aka Byrun Fox, aka Byron Foxx, aka As Byrun Foxx is no stranger to Quatloos. Check out my June 1, 2014 posting in this discussion;[22] It is no issue that all parties to a proceeding are entitled to a fair hearing devoid of actual or apprehended bias. The conduct of the presiding judge must not give rise to a reasonable apprehension of bias as viewed by an informed and reasonable observer, fully apprised of all relevant circumstances, including the social reality that forms the background to the particular case. However, there must be a real likelihood of bias; mere suspicion is not enough, and the onus of demonstrating bias lies with the person who is alleging its existence. Judges are entitled to a presumption of judicial integrity and impartiality devoid of bias, such that the presumption may be displaced only by cogent evidence that the judge's conduct has given rise to a reasonable apprehension of bias.
[23] In my opinion, a reasonable observer of the proceedings would not conclude that the matters to which Ms. Millar has referred would give rise to an apprehension of bias.
[24] As to the first complaint, it is apparent both from the trial judge's ruling on the disclosure issue and the appeal judge's reasons for judgment that Ms. Millar was asserting that she was being selectively prosecuted because she was part of a tax protest group. In light of that allegation, it is unremarkable that the appeal judge would make reference to Ms. Millar being part of such a tax protest group.
[25] When the appeal judge referred to Ms. Millar's disclosure application as "obstructive, speculative, fanciful and unmeritorious" he was using the language of the Supreme Court of Canada in R. v. Chaplin, supra, at para. 32. The appeal judge made clear in his reasons that the documents for which disclosure was demanded were not relevant because the abuse of process argument Ms. Millar said she was going to advance could not succeed in any event. The appeal judge used the terms used in Chaplin as an apt description of the disclosure demand made by Ms. Millar.
[26] The next complaint concerns what Ms. Millar states was a lack of assistance by the appeal judge in the conduct of her appeal. It is unclear from her material what further assistance Ms. Millar believes the appeal judge should have provided to her but, in any event, the complaint provides no foundation for the allegation that the appeal judge displayed bias.
[27] In both the first and second proposed grounds of appeal, Ms. Millar asserts that the appeal judge ought to have provided more time for hearing the applications for intervener status and that she was prejudiced by the refusal of their application. In her Memorandum of Argument on the leave application, Ms. Millar states:
[28] The matters to which Ms. Millar referred in her memorandum are not such that they could give rise to a reasonable apprehension of bias. Ms. Millar has no standing to argue that intervener status should have been granted to those who applied. The purpose of allowing intervener status is not to assist a party to bolster his or her arguments. Rather, the purpose is to assist the court by allowing other interested parties to make submissions so that the court may have the benefit of a wider perspective and potentially differing interests: Guadagni v. British Columbia (Worker's Compensation Board) (1988), 1988 CanLII 3134 (BC CA), 30 B.C.L.R. (2d) 259 (C.A.); MacMillan Bloedel Ltd. v. Mullin (1985), 1985 CanLII 695 (BC SC), 66 B.C.L.R. 207 (C.A.).4. During the Intervener Hearing, although proper and correct Court Procedures were followed in applying for time to argue Intervener status, and filing written memoranda by each Applicant, Judge Romilly prejudiced this process by denying each Applicant for Intervener Status an argument, and shortened time as scheduled by the registry to only two of four, and only ten minutes each, instead of twenty. Therefore the full answer and defense of the Applicant in the matter before the same Judge Romilly in the subsequent British Supreme Court Appeal was prejudiced.
[29] The third proposed ground of appeal suggests that the appeal judge erred by finding facts different from those found by the trial judge. However, the "facts" to which Ms. Millar has referred are simply the trial judge's observations as to how the documents might be relevant to the abuse of process argument Ms. Millar wished to put forward. The appeal judge dealt with the question of relevance of the documents demanded in his reasons and, as I have already indicated, I see no merit in an appeal of his decision on that point.
[30] Ms. Millar also wishes to argue before a panel that the disclosure she requested could have been relevant on a number of other bases, and not just to her assertion of selective prosecution. In particular, Ms. Millar argues that the documents could also be relevant to other forms of abuse of process and to raising a reasonable doubt on an essential element of the offence charged.
[31] The appeal judge properly confined his analysis of the disclosure issue to the question of selective prosecution, which was the basis Ms. Millar had put forward for her abuse of process argument.
[33] The final ground of appeal for which Ms. Millar seeks leave is that the appeal judge erred in law in not distinguishing this case from McMordie and Bruno. In my opinion, there was no basis to do so on the facts of this case. The argument advanced by Ms. Millar in the trial and appeal courts is virtually identical to one rejected by Proudfoot J.A. in McMordie. The reasons in McMordie make clear that there is no immunity from prosecution for failing to comply with the Income Tax Act because an individual acts out of "political beliefs" or is identified as a tax protester.
[34] The applicant has failed to satisfy the test for leave to appeal in that she has failed to show that any of the proposed grounds has a reasonable possibility of success.
[35] Accordingly, I would dismiss the application.
viewtopic.php?f=48&t=10036
Secondly while a diligent search of the jurisprudence didn't result in my finding any further jurisprudence in respect to Teresa I did find her case cited in another decision. This one;
R. v. Gibbs - Excerpt Ruling, 2003 BCPC 545
http://canlii.ca/t/1l4d9
In that case the court stated;
Teresa Gibbs was another detaxer who was eventually convicted of failing to file income tax returns.One paragraph in this decision leads me to my next point of discussion, Dr. Lenard-Zephirin who was mentioned in Michael Millar's case.[11] That case has for some time, it seems to me, been found in this province as firm authority for the proposition that where there is an assertion that a person is being prosecuted by virtue of their suspected or indeed direct involvement in a Canadian De-tax Group, or type group, that where the allegation is failing to file, that that association, or maybe even belief by Canada Customs and Revenue of such an association, is not relevant.
[12] The Court of Appeal has recently had an opportunity to revisit that issue, and it's a decision which is certainly more recent than Gagne, and is a decision which seems to firmly affirm Madam Justice Proudfoot in McMordie. That decision is R. v. Teresa Millar. This is a case which originally had started out, I believe, in Burnaby, if I'm not mistaken, where the Provincial Court judge had made a sweeping order for the disclosure of a number of documents, including legal opinions. That ruling was ultimately appealed to the Supreme Court, and Mr. Justice Romilly allowed the Crown's appeal. His decision was appealed to the Court of Appeal and it's that decision, that is the decision of Madam Justice Rowles, which is the Court of Appeal decision in Millar which was rendered in March of this year, 2003.
[13] She, in my view, clearly agreed with Mr. Justice Romilly in the issue of what the case of McMordie stands for. He had held that the McMordie decision makes clear that there is no immunity from prosecution for failing to comply with the Act because one acts out of political belief rather than self-interest, and the Court of Appeal in Millar goes on to confirm that, in my view, certainly in paragraph 33, in finding that the argument advanced by Millar in the trial in appeal courts is virtually identical to one rejected by Proudfoot, J.A. in McMordie.
The reasons in McMordie make clear that there is no immunity from prosecution for failing to comply with the Income Tax Act because an individual acts out of 'political beliefs' or is identified as a tax protester.
[14] It seems to me that the very issue, that last point, "or is identified as a tax protester", is the issue which Ms. Gibbs would seek to adduce evidence from Mr. Sexsmith and Jacabucci, I take it asking questions regarding why she was being prosecuted and whether or not inferentially their belief that she was, or may be, a tax protester played any role in that. My reading of the Court of Appeal decision in Millar is that the Court of Appeal has made a clear and unequivocal pronouncement that that would not be relevant evidence because there's no such immunity from prosecution.
[15] Based on the case before me, the issues that are raised before me, they are not persons who are likely to give evidence which is material to these proceedings, and I accordingly excuse those two people from attending further pursuant to those subpoenas which have been previously issued in 2002.
His full name is Lenard-Zephirin Gagne. I assume He's the Gagne cited in the preceding paragraph. I can't confirm this because I can't find the cited decision. I've checked into him. He actually is a medical doctor practicing in Burnaby at the Kensington Medical clinic. So why is a doctor caught up in all this detaxer jurisprudence? A hint, he prefers that his name be spelled :Lenard-Zephirin:Gagne. Yes, yet another hyphenated name type. And I found a case of his;9] The Crown argues that the reference in that section to requiring production or provision of certain material for a purpose related to the administration or enforcement of the Act relates to the requirement in s. 231.2 of the Act and does not relate to a decision at some point later down the line to prosecute. The defence argues that really the decision to prosecute is simply part of a continuum of the original decision to give notice of a requirement to provide certain documents or information, and the defence relies on a decision of R. v. Gagne, a decision of the British Columbia Supreme Court, the Honourable Ken Smith, as he then was, he's now in the Court of Appeal, wherein in that case he held that the person sought in that case to be subpoenaed may have evidence relevant to what he perceived to be a live issue in that case, and that is whether or not things were done for a purpose other than the proper administration of the Act.
Gagne v. Canada (Minister of National Revenue), 2003 FCT 18
http://canlii.ca/t/hz2
This was an application to the Federal court Trial Division trying to quash a garnishee of his wages;
Although the good doctor pulled all kinds of arguments out of the air none prevailed and the decision was;[1] This is an application for judicial review challenging a Requirement to Pay by way of garnishee dated February 20, 2002 ("the Decision") and issued by the Respondents to the Applicant's employer, Kensington Medical Clinic Inc., for unpaid personal income taxes for the 1997, 1998 and 1999 taxation years.
[2] In early June of 2001, the Applicant received Notice of Assessments dated May 29, 2001 for unpaid personal income taxes for the 1997, 1998 and 1999 taxation years for the total amount of $237,006.70 as of that date. On October 16, 2001, the Applicant requested an extension to file a Notice of Objection to the assessments.
[3] By letter dated November 20, 2001, the Respondents confirmed the assessments, informing the Applicant that if he disagreed with the assessments, he could file an appeal to the Tax Court of Canada. They provided information on how to proceed with such an appeal. The Applicant made a conscious decision not to appeal the confirmation of the assessments. As a result, collection activity was initiated with regards to the assessments as of February 19, 2002.
As to how this all worked out all that I coud find was a scrambled notation about him on a damaged website;[28] In all respects I dismiss the allegations of the Applicant that the Minister acted beyond the scope of the law and all challenges relating to the collection process by way of garnishee were all within the prescribed sections of the ITA.
[29] No equitable remedy is warranted. The application with respect to challenging the assessments by the Minister are dismissed, this Court having no jurisdiction to entertain this aspect of the application.
[30] The application is dismissed.
Vancouver, British Columbia, March 22, 2006
Vancouver resident, Lenard Zephirin Gagne, a medical doctor, was fined $20,000 in Robson Square Provincial Court after pleading guilty to one count of making false statements in his income tax returns for 1998 and 2000, underreporting his net professional income by $114,372.91. The fine is equal to approximately 75% of the income taxes evaded. Gagne has until June 30, 2008 to pay the fine.
It came from this;
http://lists.pacdat.net/pipermail/centa ... chment.htm
A postscript on the Millars. Michael had an ITA certificate registered on Nov. 9, 2009 (ITA v Michael Millar, Docket ITA-13126-09), Teresa had one too (ITA v Teresa Millar, Docket ITA-12258-06) dated Nov. 2, 2006, but unlike Michael, the Sheriffs did manage to seize Teresa's property and satisfied the debt as of Sept. 6, 2007.
Next posting; Burnaby49 on the scene!
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