Bisaillon c. La Reine, 2005 TCC 17

[OFFICIAL ENGLISH TRANSLATION]

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Application heard on August 25, 2004, at Montréal, Quebec.

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ORDER

          Considering the Applicant's application to this Court to make a decision on the following question of law:

[translation]

If the provisions in subsection 163(2) of the Income Tax Act (R.S.C. 1985, c.1 (5th supp.)) are of the same nature as a criminal offence, is it an offence within the meaning of the Canadian Charter of Rights and Freedoms [more specifically, paragraphs 10(b), 11(c) and 11(d)].

          The answer is no, and this, in accordance with the attached Reasons for Order.

Signed at Ottawa, Canada, this 11th day of January 2005.

Bédard J.

Translation certified true

on this 11th day of April 2005.

Elizabeth Tan, Translator

[OFFICIAL ENGLISH TRANSLATION]

REASONS FOR ORDER

Bédard J.

[1]      Counsel for the Applicant is asking the Court, under section 58 of the Tax Court of Canada Rules (General Procedure), to make a decision on the following questions:

          (i)       Is subsection 163(2) of the Income Tax Act (the "Act") a penal provision?

          (ii)       If so, were the legal guarantees specifically set out in the Canadian Charter of Rights and Freedoms (the "Charter") respected in this case? In other words, he is asking the Court to verify whether the Applicant had the right to counsel[1], the right against self-incrimination[2] and the right to be presumed innocent.[3]

[2]      Relying on Wigglesworth[4], the Applicant tried hard to persuade me that subsection 163(2) of the Act includes genuine criminal consequences that give rise to the application of section 11 of the Charter.

[3]      In my opinion, the Federal Court of Appeal's analysis in Martineau[5] clearly answers the Applicant's first question. It is worthy of note that the Supreme Court of Canada[6] very recently confirmed the decision rendered by the Federal Court of Appeal in this case.

[4]      For these reasons, I find that the penalties set out in subsection 163(2) of the Act do not amount to a genuine criminal consequence within the meaning of section 11 of the Charter, and it is therefore of no use for me to make a determination on the other issues raised by the Applicant.

Signed at Ottawa, Canada, this 11th day of January 2005.

Bédard J.

Translation certified true

on this 11th day of April 2005.

Elizabeth Tan, Translator