Friedman – Federal Court of Appeal suggests that Jarvis also applies to allegations that CRA information requirements violate the Charter right not to self-incriminate
The Friedmans, a married couple, who had each received Requests for Information under s. 231.1(1) (“RFIs”) that were addressed to them personally, appealed the Federal Court decision granting a compliance order against them under s. 231.7(1). They submitted:
- ss. 231.1(1) and 231.7(1) infringed their rights under s. 13 of the Charter in that those provisions did not prohibit use of the information gathered in any subsequent criminal proceedings and
- the Federal Court failed to follow Lin which, in dealing with RFIs with essentially identical wording, found that compliance with the RFIs was not required because it was unclear whether the RFIs were directed to the taxpayers individually or to their related foreign entities.
In rejecting the second submission, Pelletier JA stated that any failure to follow “judicial comity,” i.e., the expectation “that judges will consider the decisions of their colleagues carefully and, if they choose to differ, will explain why … is not a basis for appellate intervention.”
In rejecting the first submission, he stated that “courts should not decide constitutional cases in a factual vacuum” such as here, where there were “merely hypothetical possibilities which may or may not arise” (e.g., a subsequent criminal investigation commencing) – speaking of which, he went on to find that, in any event, even though Jarvis (which “established a predominant purpose test to determine if inquiries by the Minister were intended to determine a taxpayer’s tax liability or a taxpayer’s criminal liability” (para. 41)) dealt explicitly only with ss. 7 and 8 of the Charter, and not s. 13 thereof, that test nonetheless appeared to be applicable here, where there was no criminal investigation.