McEachern,
CJSC:—The
petitioners
invoke
sections
11(h)
and
24
of
the
Canadian
Charter
of
Rights
and
Freedoms
in
a
challenge
against
penalties
assessed
under
the
Income
Tax
Act,
incuding
the
return
of
such
penalties
which
have
been
paid,
on
the
ground
that
such
penalties
are
further
punishment
for
tax
evasion
offences
for
which
the
petitioners
have
already
been
charged,
convicted
and
sentenced
in
criminal
proceedings.
Such
penalties,
amounting
to
100
per
cent
or
more
of
the
tax
evaded,
include
penalties
assessed
by
Canada
as
agent
for
the
Province
of
British
Columbia.
Hence
the
appearance
of
counsel
for
the
Minister
of
Finance
and
the
Attorney
General
of
British
Columbia
on
this
petition.
Counsel
for
the
Minister
of
National
Revenue
and
the
Attorney
General
of
Canada
takes
the
position
that
section
18
of
the
Federal
Court
Act
gives
exclusive
jurisdiction
in
this
matter
to
the
Trial
Division
of
the
Federal
Court
of
Canada.
Counsel
for
British
Columbia
takes
a
stoic
position.
He
doesn't
care
if
the
federal
portion
of
this
question
is
tried
in
the
Trial
Division
of
the
Federal
Court
but
he
thinks
this
Court
clearly
has
jurisdiction
qua
the
provincial
portion
of
the
assessment.
Uncertain
dual
jurisdiction
in
different
courts
is
a
developing
misfortune
in
this
country
as
more
and
more
cases
fall
easily
within
one
jurisdiction
or
the
other,
and
our
citizens
are
never
sure
that
great
time
and
expense
will
not
be
wasted
litigating
in
the
wrong
court.
This
is
especially
so
now
that
increasing
numbers
of
cases
of
a
local
or
private
nature
seem
to
be
heard
in
the
Federal
Court.
In
this
connection
one
notices
motor
vehicle
accident
cases,
corporate
takeovers,
construction
contract
claims
and
many
other
diverse
kinds
of
cases
which
also
fall
clearly
within
the
jurisdiction
of
the
provincial
superior
courts.
The
language
of
section
18,
supra,
should
be
reconciled
with
the
recent
jurisprudence
which
seems
to
recognize
the
right
of
litigants
to
bring
their
cases
in
the
courts
of
general
jurisdiction
even
where
Her
Majesty
in
the
Right
of
Canada
is
involved.
Dual
jurisdiction
which
exists
in
many
countries
without
noticeable
success
seems
to
be
increasing
in
Canada.
I
must
leave
it
to
Parliament
to
decide
if
dual
jurisdiction
is
in
the
public
interest.
With
great
deference
I
suggest
it
is
not,
except
perhaps
in
particular
matters,
if
any,
which
are
thought
to
require
judicial
specialization
not
available
in
the
provincial
superior
courts.
On
this
application
I
was
treated
to
excellent
technical
arguments
on
the
question
of
jurisdiction.
In
fact,
counsel
agreed
that
there
is
no
point
in
proceeding
to
the
merits
of
this
case
until
the
jurisdictional
question
has
been
resolved.
This
has
required
extensive
argument
and
the
reading
of
many
authorities.
As
a
result,
I
only
have
the
question
of
jurisdiction
to
consider
at
this
time.
The
necessity
of
dividing
cases
on
technical
grounds
is
obviously
a
good
reason
to
have
the
broad
question
of
dual
jurisdiction
reviewed.
I
have
concluded,
after
considering
the
numerous
authorities
cited
by
counsel,
that
this
Court
has
at
least
coordinate
jurisdiction
in
Charter
matters
with
the
Trial
Division
of
the
Federal
Court.
Such
I
think
may
fairly
be
extracted
from
a
number
of
pre-
and
post-Charter
cases
including
AG
of
Canada
et
al
v
Law
Society
of
BC
(1982),
137
DLR
(3d)
1
(SCC)
(the
Jabour
case);
Re
R
L
Crain
Inc
et
al
and
Couture
et
al
(1983),
9
CRR
287
at
300-304
(Sask
QB);
Re
Krakowski
and
The
Queen
(1983),
4
CCC
(3d)
188
at
191-2
(Ont
CA);
Canadian
Labour
Relations
Board
et
al
v
Paul
L'Anglais
Inc
(1983),
146
DLR
(3d)
202
(SCC)
at
207,
209,
211-12;
R
v
Ritter
et
al,
[1984]
2
WWR
623
at
643-44
(BCCA);
Hunter
et
al
v
Southam
Inc
(1984),
11
DLR
(4th)
641
(SCC).
Of
the
foregoing,
and
there
are
undoubtedly
many
others,
I
regard
Jabour,
L'Anglais
and
Hunter
to
be
particularly
appropriate.
Without
conceding
that
there
would
be
jurisdiction
in
this
case
if
the
petitioners
sought
only
a
declaration,
Mr
Purdy
says
that
the
claim
of
the
petitioners
for
the
return
of
the
paid
penalties
removes
this
case
from
the
jurisdiction
of
this
Court.
I
cannot
accept
that
submission
for
it
means
that
this
Court
might
have
jurisdicion
if
the
taxpayer
refused
to
pay
but
does
not
have
jurisdiction
if
he
has
paid
under
protest
and
is
seeking
firstly
to
establish
his
rights
and
secondly
to
recover
what
he
was
forced
to
pay.
Such
a
result
is
so
technical
and
artificial
that
it
must
be
rejected.
Next,
Mr
Purdy
argues
with
his
usual
agility
that
even
if
this
Court
has
jurisdiction
it
should
nevertheless
defer
to
the
Trial
Division
of
the
Federal
Court
as
income
tax
matters
are
said
generally
to
belong
to
that
Court.
As
there
is
so
much
litigation
about
jurisdiction,
the
safe
course
might
be
to
decline
jurisdiction
but
that
has
not
been
the
practice
and
my
view
is
that
judges
who
have
jurisdiction
should
not
lightly
avoid
difficult
questions,
particularly
where
the
petitioners,
with
full
knowledge
of
the
risk,
have
elected
to
proceed
in
this
Court.
In
any
event,
I
regard
this
case
as
much
a
Charter
case
as
an
income
tax
case
and
I
respectfully
do
not
agree
that
this
Court
should
defer
to
the
Federal
Court
in
Charter
matters.
I
regard
fragmented
hearings
as
one
of
the
unfortunate
results
of
dual
jurisdiction,
and
I
do
not
wish
to
be
understood
to
be
pronouncing
an
order
on
the
question
of
jurisdiction
which
someone
may
wish
to
appeal.
I
have
only
made
a
ruling
in
favour
of
this
Court's
jurisdiction,
and
the
order
on
this
and
all
other
questions
will
only
be
made
after
the
completion
of
the
hearing
of
the
entire
petition.
For
this
reason,
of
course,
it
is
not
necessary
to
make
any
order
regarding
costs.
Counsel
may
reset
the
balance
of
the
petition
for
hearing
as
they
may
be
advised
but
they
may
consider
waiting
for
the
decision
of
the
Supreme
Court
of
Canada
in
R
v
Wigglesworth
(1983),
150
DLR
(3d)
748
(Sask
QB);
affirmed
(1984),
7
DLR
(4th)
361
(CA);
leave
to
appeal
granted
May
3,
1984,
where
useful
jurisprudence
on
a
similar
question
may
be
forthcoming.
Rule
accordingly.