[OFFICIAL ENGLISH TRANSLATION]
Date: 20011214
Docket: 2000-5119(IT)I
BETWEEN:
FERNANDE CHAMPOUX
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
For the
Appellant:
The Appellant herself
Counsel for the
Respondent:
Simon-Nicolas Crépin
REASONS FOR JUDGMENT
(edited transcript of the Reasons for Judgment
delivered orally from the bench on
October 18, 2001, at Québec, Quebec)
[1] THE COURT: I understand you
completely, madam. The only thing is that I do not think you are
in the right forum to express the difficulties you are facing.
That is too bad, but it is not within the power of a court of
justice bound by an act, which is passed by Parliament, and which
must therefore be strictly enforced, to exercise discretion in
applying it or not applying it, depending on its analysis of an
individual case. It must be applied in all cases. And I agree
with you that it is definitely not easy for a single person to
live on $11,000 a year. Except that I have no other choice, in
the forum where I preside, but to apply the law. And the credit
you were allowed is the credit to which you are entitled, nothing
more. Now I agree with you that that may be far from sufficient
for many people. And I am going to add that this credit (it was
transformed into a credit a number of years ago and was
previously a basic exemption) entails a somewhat different way of
calculating. However, the credit nevertheless has not been
indexed to increases in the cost of living for a number of years.
That has just recently been done at the federal level.
[2] APPELLANT: Yes, I know that. I
know that, yes.
[3] THE COURT: Those amounts have just
recently been re-indexed at the federal level and will be indexed
at the provincial level only for the coming year.
[4] APPELLANT: Well, they increased
the amounts, they increased them by a lot.
[5] THE COURT: Yes, but, since we are
talking about the federal level, let us stick to that, indexation
as such was halted for a number of years and was halted for
everyone.
[6] APPELLANT: Yes,
I . . .
[7] THE COURT: Indexation of those
amounts has just started once again.
[8] APPELLANT: Yes, I am aware of
that.
[9] THE COURT: Precisely, so that they
can be adjusted in accordance with increases in the cost of
living. For many people, you will tell me that that is not
sufficient. It may not be sufficient, except that it is not up to
a judge to decide whether or not it is sufficient. The position
we are in, whether in your case or in other cases, is that we
must strictly apply the act and we cannot override it. The most
appropriate forum for your demands is the political forum. You
will tell me: [TRANSLATION] "Things do not move quickly, and
I am all alone, and . . ." Well, you are not
all alone; many groups make demands; anti-poverty groups
demonstrated again yesterday. The way to make things change is to
put pressure on governments for them to pass laws that better
suit the needs of the people who make those demands, to the
extent the government deems it necessary. Unfortunately, you have
explained it all to me; I sympathize with your situation and I
understand it. I do find it difficult, except that that does not
give me any more power. And it does not give me special
jurisdiction to deal with individual cases on the basis of a
difficult personal financial situation. Nor does it give me more
discretion to interpret the law. Do you understand?
[10] APPELLANT: But you cannot even give an
opinion that would wake people up?
[11] THE COURT: No. As a judge, I am not
asked for my opinion; I am asked to render judgment on the law on
the basis of . . . And since you mention the
Charter, I can add one thing, and that is that, in Canada, the
Charter of Rights and Freedoms does not cover what are
generally called economic rights.
[12] APPELLANT: Well, it says we have the
right to life.
[13] THE COURT: To life, liberty and
security of the person.
[14] APPELLANT: Yes.
[15] THE COURT: But the analysis that case
law has made at this point, even in the highest court in the
land, does not cover strictly economic rights.
[16] APPELLANT: But, it is there for rights;
it is universal; Canada . . .
[17] THE COURT: Yes, that is the United
Nations Universal Declaration of Human Rights; it is not the
Canadian Charter of Rights and Freedoms.
[18] APPELLANT: But we must be included in
it, since it is universal.
[19] THE COURT: Yes, but there is no
protection¾how can I say it?¾for strictly economic
rights in terms of dollars or income levels, of
. . .
[20] APPELLANT: Yes, that cannot be put in
line with the credit, as you say now; it is called a credit; that
cannot be put in line with the credit that is allowed. The credit
allowed is $6,700; that clearly cannot be put in line, but when
I'm told, in principle 9, that you must be protected
from all forms of exploitation, I think this is a form of
exploitation.
[21] THE COURT: In fact, that is your
opinion. I do not think I can render a judgment of that
nature.
[22] APPELLANT: No, but, if in the universal
rights it says¾ask someone for what he cannot give; what
is that called? It is . . . I don't know.
[23] THE COURT: I understand that your
situation is difficult, madam, but there are people in much worse
situations than yours.
[24] APPELLANT: Yes, I know, there are some
who are completely out on the streets, but
. . .
[25] THE COURT: Yes, that is correct.
[26] APPELLANT: There was another section
that states that you must be protected from practices that can
lead to any form of discrimination. The first time I was here, my
whole argument dealt with that, discrimination against welfare
recipients, because they . . . But the judge told
me outright that that was because they, the benefits, they pay no
tax because, when they receive the T5 . . . I was
on welfare while waiting for alimony after my divorce, so I know
how it works. We receive the T5 at the start of the year, at the
end of the year or the start of the year, for our income tax
return, if necessary, but the only amounts that appear on the T5
are what we received at home. If we changed our dentures, glasses
or fridge, that is not written on it, and we pay no tax. And that
is why the department's lawyer told me afterwards-well, the
judge explained to me, saying: [TRANSLATION] "Yes, but that
is right; he pays no tax, but . . ." He told
me; he made me understand because he said: [TRANSLATION]
"When you ask to have your dentures changed, how does that
work?" Well, I said: [TRANSLATION] "You file a request
with welfare and they study it. If it is valid, they will give us
permission. We go ahead and present our health record, which we
have with us at all times with our cheque, which comes with it.
We present our health record and we just have to sign. They take
down the number and send the bill to welfare." So, the judge
said that that is why they do not include it in their taxes,
because they cannot use it as they wish; they do not have it. But
that changes nothing when you experience that,
because . . ."
[27] THE COURT: No, I understand you, but in
this case, we're dealing with the question of the basic
personal credit.
[28] APPELLANT: Yes, that is correct;
I . . .
[29] THE COURT: As I told you, that
credit . . . You can argue in economic terms that
it is not sufficient, that it should be twice or three times what
it is or that it should be worth X amount. What I'm telling
you is that, factually speaking, Parliament made a firm decision
not to index that amount for a number of years. That has just
been changed and it will now be indexed. And I do not think we
will go back to the old system for a long time. We have just
begun to re-index it and that will definitely help a little. It
does not help . . . it never helps enough.
Everybody complains, everyone complains and people who are less
well off and people who are a little better off, who in any case
pay too much tax at all levels. So that is an argument that can
work at the political level, but that cannot work at a legal
level as long as Parliament has passed legislation that we are
obliged to apply. And that is the situation at this time.
[30] APPELLANT: In other words, here the
Court is only . . . it exists only to determine
whether a thing has been done, to determine whether the tax laws
are applied?
[31] THE COURT: To determine whether the
assessment is consistent with the law. Is the assessment that you
have received consistent with the law or is it not consistent
with the law? If it is not, the appeal is allowed. If it is,
unfortunately it must be dismissed. That is the Court's only
jurisdiction because this is a very specialized court; its sole
jurisdiction with respect to federal income tax is to determine
whether the assessment made is correct or not correct. Are the
things that are not right in that assessment based on the act as
Parliament passed it? It is not up to us to change them, the
laws, and to say: [TRANSLATION] "Well, this morning, I'm
going to take your case. I am very sensitive to your case, and
I'm going to decide that, in your case, I will not apply
it." Well, no.
[32] APPELLANT: Yes, but who decides that
the laws will be changed? It is
the . . .
[33] THE COURT: The parliamentarians. It is
the parliamentarians . . .
[34] APPELLANT: The legislative
assembly?
[35] THE COURT: . . . It is the
members of the House of Commons and the senators who pass the
statutes. So it is at that level; you told me yourself that you
had already written to your Member of Parliament.
[36] APPELLANT: Excuse me?
[37] THE COURT: You told me yourself that
you had already written to your MP. That takes place at the
legislative level. Once in court, the idea is to determine
whether the government has done its job properly. Is the
assessment that it has made correct or not correct based on the
act as it exists? Based on the explanations you have given me, I
am indeed obliged to answer that yes, it is correct. I am also
obliged to dismiss the appeal, and it is not up to me to change
the law.
[38] APPELLANT: Excuse me?
[39] THE COURT: It is not for me to send my
message to Parliament. This is precisely what is called the
principle of judicial deference, which means minding our own
business and deciding what we have to decide. For other matters,
we have no jurisdiction and nothing to say.
[40] APPELLANT: Here, in the notice of
assessment, it is written that¾I hope I have not taken the
wrong title. I read somewhere that, with regard to fairness,
people now had . . . It's here on page 2:
[TRANSLATION] "As part of our fairness initiative, we are
taking important steps to protect your rights. We pledge to
continue to improve our programs and services. Information is
available . . ." Fairness
initiative . . . because they always talk about
that on the back of our tax return sheets. I think that, the time
when the person had marked zero, let's suppose that I had
accepted it. What would that have done?
[41] THE COURT: If you had accepted what?
You would have left . . .
[42] APPELLANT: Well, he made an assessment
for me.
[43] THE COURT: Yes?
[44] APPELLANT: And I wrote and expressed my
point of view to those who had made the calculation.
[45] THE COURT: Yes.
[46] APPELLANT: He said: [TRANSLATION]
"You asked for it." I have his name, but I did not
bring it with me today. [TRANSLATION] "I know you are right.
I grant you that." I called him and I said: [TRANSLATION]
"Is there going to be further action? Will someone else take
that, type on the computer and say, no, that won't work, and
stop what you . . ." He thought about it and
he did not know. So I said, [TRANSLATION] "In that case,
strike it out." But suppose I had accepted it.
[47] THE COURT: Yes.
[48] APPELLANT: Because it was said, he said
[TRANSLATION] "As part of the fairness initiative"
because I had talked about that. And he said . . .
At that point, he had decided, no one could have said:
[TRANSLATION] "I challenge the way your assessment is
made." I read it that way, as part of the fairness
initiative. He had taken an initiative.
[49] THE COURT: Yes, well, I will explain to
you what that is. It is quite limited despite everything. It is a
power that has been conferred on the federal Department of
Revenue, now the Canada Customs and Revenue Agency, in certain
circumstances to make it possible to go back to 1985, in fact,
first, to allow deductions that were not previously allowed but
to which people were entitled, second, to eliminate interest in
certain circumstances and, third, to set aside penalties in
certain circumstances. I will not cite 25 examples; I will
cite one.
[50] APPELLANT: Yes.
[51] THE COURT: The department makes a hasty
assessment and comes back three years later when it realizes
that an obvious error was made. At the taxpayer's request, it
will be agreed to set aside the interest. So the department
claims more tax from the taxpayer, with interest because a
mistake has clearly been made, and so on, and the taxpayer says:
[TRANSLATION] "Yes, but that's your fault; I am
in . . ." etc., and it is realized that
errors have in fact been made. The taxpayer is told one thing,
then a second thing, then a third thing; everyone is confused. I
am exaggerating in this example. It will be accepted at that
point that, yes, the taxpayer will be reassessed and the amount
of tax he actually owes will be claimed, but it will be agreed to
set aside the interest. So that is the fairness initiative. That
began in the mid . . .
[52] APPELLANT: In any case, it has not been
around for a long time.
[53] THE COURT: Yes, that dates back to the
mid-1980s, 1985.
[54] APPELLANT: Yes, well, on the back of
our returns where we took our . . . it was
written, but . . .
[55] THE COURT: Yes, but that means that the
authorities can go back and allow you a deduction to which you
were entitled. And despite the fact that it may be time-barred, a
deduction to which you were entitled for a particular year. But
what you are being given is what you are entitled to. You are
entitled to the basic personal amount; it is a fixed amount; we
know the amount; it is the one that was applied, based on what I
can see in your case. So there's no question of allowing an
additional amount, and on the basis of that principle, that does
not enable officials to do what they want, to assess or not to
assess depending on how sympathetic they are to the case.
[56] APPELLANT: And he found that I had
outlined my . . . I had with my
return . . . I explained the case, with the
welfare recipients and everything, and he found that it was, that
I was right.
[57] THE COURT: That it made sense and he
did you justice himself.
[58] APPELLANT: He found that I was right,
yes.
[59] THE COURT: Yes, but I am not saying
that, on the merits, you are not right, I am not saying
that . . . I am not ruling
on . . . I am not giving an opinion on the fact
that those basic personal amounts or equivalent to married
amounts, or amounts for dependants, and so
on . . .
[60] APPELLANT: No, I understand.
[61] THE COURT: I'm not saying that the
amounts are right and that this satisfies everyone; I am not
making a value judgment on that. I am simply telling you that
that is the way it is, and if you were given that, it was based
on the act and the act was applied. And I see that it was
applied, so I do not have much else to do. I do not have
. . . It is not because one is a judge that one has all
the powers.
[62] APPELLANT: In future perhaps, when we
are asked whether, when they write after a decision,
[TRANSLATION] "If you do not agree," it seems to me
that, in order to avoid our coming over here and disturbing
things, that that should be written.
[63] THE COURT: Well, if you do not agree in
the sense that you do not agree in a moral sense or in the value
sense or in the economic sense, that is not what that means. You
do not agree legally; in other words, you are persuaded that,
based on the act, you are entitled to something and you were
denied it. When you do not agree, that is what that means.
[64] APPELLANT: Based on the act,
I . . .
[65] THE COURT: Because that is a legal
argument; it is based on the law.
[66] APPELLANT: Yes, it is based on the law,
but just the Income Tax Act, not the other laws.
[67] THE COURT: No, the Canadian Charter
of Rights and Freedoms also applies at the federal level.
[68] APPELLANT: But is the Charter of
Rights and Freedoms related to the Charter proclaimed by the
United Nations? Is that valid?
[69] THE COURT: Well, in the sense that it
is related, it is a . . . You first mentioned the
universal declaration of human rights . . .
[70] APPELLANT: Yes.
[71] THE COURT: . . . then you
mentioned the Declaration of the Rights of the Child; that
has no . . .
[72] APPELLANT: But that is because that
one, it can no longer be explained.
[73] THE COURT: There's no direct link.
The Canadian Charter . . .
[74] APPELLANT: But is that recognized?
[75] THE COURT: . . . is
entrenched in the Constitution and takes precedence over the
Income Tax Act, which means, without elaborating too much
in legal terms, that certain provisions of the Income Tax
Act could in fact be struck down by using the Canadian
Charter.
[76] APPELLANT: Because I heard one day that
all the laws must . . . they call that passing the
Charter test.
[77] THE COURT: Yes.
[78] APPELLANT: I do not think the Income
Tax Act passes the Charter test.
[79] THE COURT: Yes, that's right.
That's right.
[80] APPELLANT: As far as I'm
concerned.
[81] THE COURT: I believe it does,
but . . .
[82] APPELLANT: Well, it
cannot . . . it has not been explained enough for
me to back up what I say formally but that one, it has been
explained enough.
[83] THE COURT: Now you are talking about
the Declaration of the Rights of the Child.
[84] APPELLANT: Of the rights. Yes, but if
it is valid; I do not know whether it is still valid.
[85] THE COURT: Yes, yes, it is valid in the
sense that it is not the law of the land, but
. . .
[86] APPELLANT: But it is universal; it is
significant.
[87] THE COURT: Yes, yes, it was in fact
declared by the United Nations.
[88] APPELLANT: But if it is universal and
I'm entitled to that, how can the other act be fair in my
case? I do not mean in all cases. I have a son who has just
received a big pay increase. I mean $8,000 a year. I often think
about income tax and I asked him: [TRANSLATION] "How much of
that are you going to have in your pocket?" Because he has
risen to quite a high level . . . [TRANSLATION]
"Half that." And that did not bother him because he had
$4,000 more to live on.
[89] THE COURT: There are people who are
bothered at having to give half their pay increase to the
government.
[90] APPELLANT: Excuse me?
[91] THE COURT: I said there are people who
are bothered by that.
[92] APPELLANT: Well yes, but he
. . . I mean, that will not prevent him from
living.
[93] THE COURT: He has enough to live
on.
[94] APPELLANT: Well, I mean he has $4,000
more.
[95] THE COURT: Yes, I understand.
[96] APPELLANT: He said . . .
I told him this: [TRANSLATION] "You'll be left with
$4,000." Well, he said: [TRANSLATION] "If they had
given me $4,000, I would have had $2,000."
[97] THE COURT: That is correct.
[98] APPELLANT: That is correct, but I mean
that does not trouble him, in his case, because he is still
living and he will not be prevented from doing anything all year
because of that. So that's it. But I always say, if you
compare it with that, the Income Tax Act is not fair. But
I don't know the value of that. I know the Charter because it
was done recently; it's from here, I became aware of it; it
was signed by Pierre-Elliott Trudeau. I know that, but
it hasn't been explained enough. They say "right to
life".
[99] THE COURT: To life, liberty and
security of the person. You were being referred to
section 7, madam.
[100] APPELLANT: Yes, but the right to life, liberty and
security of the person . . . my
liberty . . . if you include liberty, my liberty
is interfered with all year round, but, for me, it is not always
that that . . . I mean, I cannot argue on that
point. For me, it is especially the right to life. Do I have a
right for people not to kill me? Do I have the
right . . . For an unborn child, we do not have a
right to abortion; the right to life, is that what it means? I do
not know what . . .
[101] THE COURT: Above all, that's what it is,
yes.
[102] APPELLANT: Right. But that's it. But, for me,
in my case, what does this law do? I cannot
say . . . it does not bother me a great deal.
[103] THE COURT: No.
[104] APPELLANT: I mean it does not say much.
[105] THE COURT: No, because it guarantees minimum
fundamental rights.
[106] APPELLANT: It's vague.
[107] THE COURT: I believe you have more than the
minimum.
[108] APPELLANT: It's vague.
[109] THE COURT: I believe you have more than the
minimum.
[110] APPELLANT: Excuse me?
[111] THE COURT: You may not have much financially, but
you have more than the minimum.
[112] APPELLANT: But is the minimum defined by the
poverty line?
[113] THE COURT: Huh?
[114] APPELLANT: Is it the poverty line that defines it?
No?
[115] THE COURT: Well, the poverty line is defined by
Statistics Canada based on a certain number of factors.
But . . .
[116] APPELLANT: But it's still the government.
[117] THE COURT: Yes, yes. Well, yes.
[118] APPELLANT: I find it funny
that . . . If you put yourself in my son's
shoes, when he files his return, he is not troubled by the
poverty line, whether it is $6,000 or $15,000, because he always
has enough money left, but it's a different situation in my
case.
[119] THE COURT: No, I understand, madam.
[120] APPELLANT: And it is . . .
[121] THE COURT: As I said, I can do nothing on that
point.
[122] APPELLANT: But if I'm told that this act is
valid since it is universal and . . . It can be
explained better. I am not very good with words. When you look at
the act they passed, it cannot be said that it is fair.
[123] THE COURT: No, because in this case you are
referring to the Declaration of the Rights of the Child.
In any case, I cannot make a connection between that and your
situation.
[124] APPELLANT: It is based on human rights.
[125] THE COURT: Yes, but I cannot make a connection
between that and your economic situation.
[126] APPELLANT: And you do not even have the authority,
you cannot even give an opinion that might wake them up a little,
and say, there are a lot of people . . .
[127] THE COURT: No. The only opinion I can give, madam,
is to say, having regard to the Canadian Charter of Rights and
Freedoms, that those provisions of the Income Tax Act
are not valid. And I do not think that you have proven that to me
today.
[128] APPELLANT: Are not valid?
[129] THE COURT: Section 7 to which you did not
refer to, but I'm going to talk to you about it because that
is clearly the one you may be referring to. I said that it did
not cover economic rights.
[130] APPELLANT: Ah, it didn't cover economic
rights?
[131] THE COURT: No. It is the right to life, liberty
and security of the person, and, at present, that has been
interpreted by the highest courts of the land as not covering
economic rights. So what I have to do afterwards is to ask
myself: is the assessment that was made for Ms. Champoux
consistent with the act? Yes, it is consistent with the act
because you were given all the deductions to which you were
entitled.
[132] APPELLANT: Yes, I do not doubt that. I mean it is
consistent with their act.
[133] THE COURT: Well yes, but . . .
[134] APPELLANT: With their act.
[135] THE COURT: . . . it is the law of the
land, madam.
[136] APPELLANT: Yes, but the charters as well
. . .
[137] THE COURT: That is not their act; this is the act
that covers you, which covers Mr. Crépin and the
people here in this room, and me as well.
[138] APPELLANT: Yes, I know. I know, I know, I know, I
know. But that is what I mean, but if . . .
Suppose I were to say I'm going to another court.
[139] THE COURT: You can go to another court, but there
are no others that have original jurisdiction in federal tax
matters.
[140] APPELLANT: To determine whether the act is fair or
not fair. Do you understand? Someone who would decide whether
they have the right to pass that act? Do they have the right
to . . . Sometimes I think that, but that
is . . . If, as I see here, of
course . . . I cannot get it into my head that
there is no place in this country where someone will acknowledge
this. It's almost impossible.
[141] THE COURT: Well, the most direct action would be
to go to Parliament. There are a lot of people in your situation
who demonstrate, write to their MP, put pressure and so on to
change the laws, because . . .
[142] APPELLANT: They did that before I started doing
this, and . . .
[143] THE COURT: They are still doing it
and . . .
[144] APPELLANT: . . . but things are no
further ahead.
[145] THE COURT: . . . they
aren't through, but things have moved forward a little all
the same. Progress is slowly being made. The act has in fact just
been amended with respect to the subject you are discussing
today. The act has just been amended in this respect to re-index
these amounts to take inflation into account.
[146] APPELLANT: It's recent because I
learned about it . . . In any case, I thank
you.
[147] THE COURT: Unfortunately, madam, I
must dismiss your appeal for the reasons I have given you. Thank
you.
Transcript edited at Ottawa, Canada, this 14th day of December
2001.
J.T.C.C.
Translation certified true
on this 21th day of March 2003.
Sophie Debbané, Revisor
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