Citation: 2009TCC15
Date: 20090128
Docket: 2008-804(IT)I
BETWEEN:
BARRY J. BRADLEY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Margeson J.
[1]
The facts in this case
are not in dispute. It was agreed at the outset by the Appellant that he was
incarcerated in Springhill Penitentiary in April 2003 and that he continued to
be incarcerated throughout 2003, 2004 and 2006 (the “period under appeal”)
until at least November 2007.
[2]
It was agreed by the
Respondent that during the period under appeal the Appellant did pay G.S.T. on
all purchases that he made inside the institution and that he paid G.S.T. on
purchases made on his behalf from sources outside the institution.
[3]
The Appellant worked at
the institution and received money for his work. He believes that he is
qualified for the G.S.T. rebate because he had to pay G.S.T. on whatever he
purchased. He opined as to why the government collected G.S.T. from him when he
was not entitled to the rebate.
[4]
His position was that
the government should make the inmates exempt from the G.S.T. when they make
purchases.
[5]
The store within the
institution where he is incarcerated is run by the institution in the same way
as any store is operated on the outside. He believed that section 122.5 of
the Income Tax Act has no relation to this issue.
[6]
He admitted that the
Tax Court of Canada had advised him that if he wished to raise a Canadian
Charter of Rights and Freedoms (“Charter”) argument during
his appeal, that he had to give the proper notice before the Court could strike
down a section of the Act and that he had failed to do so in accordance
with section 57 of the Federal Courts Act, R.S. 1985, c.F-7, as amended.
[7]
Counsel referred to the
case of Yun v. Minister of National Revenue, [2008] 2 C.T.C.
2465, and took the position that the Court should hear the Charter argument,
and if there is any merit in it, to adjourn the case to permit the proper
notices to be given under the Federal Courts Act, supra, as well as
under section 19.2 of the Tax Court of Canada Act, R.S. 1985, c. T-2 and
to the Attorney General of Canada under the British Columbia
Constitutional Question Act, R.S.B.C. 1996, c. 68.
[8]
This Court proceeded to
hear the Charter argument on that basis. Simply put, the Appellant
argued that the denial by the Minister to grant him the Goods and Services Tax
Credit (“GSTC”) during the relevant period violated his rights under sections 1
and 15 of the Charter.
Argument by the Respondent
[9]
Counsel argues that
there are three issues here:
1.
Is the Appellant entitled
to the GSTC; and
2.
If he is not so
entitled, is the effect of the relevant sections such as to violate his Charter
rights; and
3.
If the infringed provisions
do offend subsection 15(1), are they justified under the Charter?
[10]The answer to question 1. is that paragraph 122.5(2)(b)
disentitles him to the GSTC because he was confined to a prison or similar
institution for a period of at least 90 days that includes the first day
of the specified month.
[11]There can be no doubt that the Appellant was so
confined.
2.
There was no infringement
of subsection 15(1) of the Charter;
3.
Since there was no
infringement of subsection 15(1), there is no argument under section 1.
[12]The appeal should be dismissed.
Analysis and Decision
[13]This issue has been addressed by the Tax Court of
Canada on a number of occasions. In Armstrong v.
R., [1996] 1 C.T.C. 2745 Justice Mogan was faced with the identical
argument that has been put forth here.
[14]Justice Mogan, as he then was, quoted from the Federal
Court of Appeal in Lister v. R., [1994] 2 C.T.C. 365 which concluded
that the legislation was not discriminatory in its effect. In that case the
argument was that they were discriminated against on the basis of age.
[15]The Federal Court of Appeal “found no evidence that
the impugned provision reinforces disadvantages or promotes stereotyping”.
[16]In Armstrong v. R., supra, Justice Mogan
found further that “the characterization of being in prison is not a ground
analogous to race, religion, sex or ethnic origin”. The prison population was
not part of “a discrete and insular minority”. He was in prison because of his
conduct before he went into prison. He then dismissed the appeal.
[17]This same issue was considered thoughtfully by Justice
Sobier in the case of McKinnon v. Minister of National Revenue, [1991] 2
C.T.C. 2284 when he said:
Parliament has chosen to exclude those individuals who it saw fit
not to benefit, namely certain types of prison inmates. This is a valid
distinction since the objective is to assist low income families and
individuals and not to benefit persons sewing [sic] prison terms.
[18]The distinction is made as part of a legitimate
exercise of social policy‑making which is Parliament’s right. To strike
this down would be tantamount to “overstating” the actual right being sought to
be protected (R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R.
295).
[19]The Court dismissed the appeal and found no violation
of the Charter.
[20]The same conclusion was reached by Justice Bowie in Mulligan
v. R., [1997] 2 C.T.C. 2062 (T.C.C.) where he agreed with the
decisions of Justices Sobier and Mogan.
[21]As Justice Bowie pointed out in Mulligan, supra,
he considered himself bound by the decision of the Federal Court of Appeal in Lister
where an enumerated ground of appeal was insufficient to find the provisions
unconstitutional and so it would be contrary to all reason to find that denial
of the credit based upon a ground not enumerated in section 15 of the Charter
would be unconstitutional.
[22]This Court is satisfied that the above-referred to
cases are squarely on point and are determinative of the issue before it.
[23]The appeals are dismissed and the Minister’s
assessment is confirmed.
Signed at Toronto, Ontario, this 28th day of January 2009.
“T. E. Margeson”
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