Jerilynn C. Prior v. Minister of National Revenue, [1987] 1 CTC 2076, 87 DTC 26

Tremblay T.CJ.:—This appeal was heard on February 27, 1986 in the City of Vancouver, British Columbia. It was taken under advisement on March 14, 1986 upon receipt of the transcript.

1. The Point at Issue

The point at issue is whether the appellant is correct, in the computation of her tax for the 1982 taxation year, to deduct 10.5 per cent of the tax amounting to $1,675.58. The appellant instead deposited the said amount to the credit of the Peace Tax Fund of Victoria, British Columbia. The basis for this deduction is that 10.5 per cent of the 1982 Canadian Budget was used for military purposes. The appellant contends that the payment of tax for military purposes infringes her conscience and religious freedom. She invokes paragraph 2(a) of the Canadian Charter of Rights and Freedoms (the "Charter").

The respondent contends on the one hand that the Tax Court of Canada has no jurisdiction to hear the appeal and on the other hand that the payment of tax does not violate the appellant's freedom of conscience nor the provisions of the Charter.

2. The Burden of Proof

2.01 The burden of proof is on the appellant to show that the respondent's assessment is incorrect. This burden of proof results particularly from several judicial decisions, including the judgment delivered by the Supreme Court of Canada in Johnston v. M.N.R., [1948] S.C.R. 486; [1948] C.T.C. 195; 3 D.T.C. 1182.

2.02 In the same judgment, the Court decided that the assumed facts on which the respondent based his assessment or reassessment are also deemed to be correct. In the present case, the assumed facts are described in the reply to notice of appeal as follows:

6. In so assessing the Appellant, the Respondent relied inter alia, upon the following assumptions:

(a) the amount of tax payable for the Appellant's 1982 taxation year was

properly determined in accordance with the provisions of the Income Tax Act;

(b) the payment of the tax as assessed for her 1982 taxation year does not violate the Appellant's freedom of conscience;

(c) the provisions of the Income Tax Act with regard to the tax payable by an individual upon his taxable income do not violate the provisions of Section 2(a) of the Charter of Rights and are therefore not illegal.

3. The Facts

In substance, the material facts are not in dispute.

3.01 In filing her income tax return for the 1982 taxation year, the appellant declared a total tax payable of $21,970.22 (net federal tax payable: $15,040.58, plus net British Columbia tax payable: $6,929.64) of which a balance of $15,957.87 was due (Exhibit R-1). The appellant admits that the calculation of the tax payable is not under appeal.

3.02 With her tax return, the appellant enclosed a cheque in the amount of $14,282.29 and a letter, dated May 2, 1983, explaining that 10.5 per cent of such balance due, or $1,675.58, had been deposited to the credit of the Peace Tax Fund of Victoria, British Columbia.

In the letter one can read:

As a person of conscience who would refuse to fight in a war on moral and religious grounds, I also refuse to pay for war on the same grounds. My constitution allows me freedom of conscience.

A receipt for the amount of $1,675.58, issued by Peace Tax Fund, was filed as Exhibit A-2.

3.03 A newsletter headed "Taxes for Peace Not War”, issued in the spring of 1983 by the Peace Tax Fund Committee, was filed as Exhibit A-1. This document recommends sending to the Peace Tax Fund 10.5 per cent of the Net Federal Tax Payable.

3.04 The appellant, a physician, is an endocrinologist and an assistant professor at the University of British Columbia. She was raised in the United States and became a Canadian citizen in July 1984.

3.05 An excerpt from “A Declaration from the Harmless and Innocent People of God, called Quakers, presented to Charles 11, 1660” was filed as Exhibit A-3. This document, entitled "Peace Testimony of the Society of Friends”, forms part of the foundation of the Quakers’ faith. It reads as follows:

WE UTTERLY DENY all outward wars and strife, and fightings with outward weapons, for any end, or under any pretence whatever; this is our testimony to the whole world. The Spirit of Christ by which we are guided is not changeable, so as once to command us from a thing as evil, and again to move unto it; and we certainly know, and testify to the world, that the Spirit of Christ, which leads us into all truth, will never move us to fight and war against any man with outward weapons, neither for the kingdom of Christ, nor for the kingdoms of this world.

3.06 The appellant said that to pay taxes which are used for military purposes would destroy her credibility, her conscience and her religious principles.

3.07 Edith Adamson, president of "Conscience Canada Inc.”, testified that this corporation, incorporated in 1983, created the Peace Tax Fund Committee. It administers the four Peace Tax Funds across Canada and is in trust for peace activists and the Federal Government. In February 1986, there was approximately $85,000 in those funds, deposited by 315 individual taxpayers.

4. Law — Cases at law — Analysis

4.01 Law

The main provisions involved in this case are section 1 and paragraph 2(a) of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.). These provisions read as follows:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

4.02 Cases at Law

The cases at law referred to the Court by the parties are as follows:

1. The Queen v. Big M Drug Mart Ltd.,, [1985] 1 S.C.R. 295; 18 D.L.R. (4th) 321;

2. Regina v. Videoflicks Ltd. et al. (1984), 48 O.R. (2d) 395; 14 D.L.R. (4th) 10; (Ont. C.A.);

3. The Queen v. Operation Dismantle Inc. et al., [1983] 1 F.C. 745, (1983), 3 D.L.R. (4th) 193; [1985] 1 S.C.R. 441; 18 D.L.R. (4th) 481;

4. Baxter v. Baxter (1983), 6 D.L.R. (4th) 557 (Ont. H.C.); 45 O.R. (2d) 348;

5. Re Federal Republic of Germany and Rauca (1983), 41 O.R. (2d) 225; 145 D.L.R. (3d) 638; (Ont. C.A.);

6. United States v. Lee, 71 L Ed 2d 127;

7. Barton v. Commissioner of Internal Revenue, 737 F. 2d 822 (1984);

8. Hodson v. M.N.R., [1985] 2 C.T.C. 2326; 85 D.T.C. 615 (T.C.C.);

9. The Queen v. B. & J. Music Ltd., [1980] 2 F.C. 775; [1980] C.T.C. 287; 80 D.T.C. 6219;

10. Mills v. The Queen, [1986] 1 S.C.R. 863; 26 C.C.C. (3d) 481.

4.03 Analysis

A. Appellant's Arguments

A-1 First Argument of the Appellant

4.03.1 The first argument of counsel for the appellant is that the Charter can apply to invalidate the assessment, because the assessment has the effect of infringing on the appellant's constitutionally guaranteed rights.

In support of this submission, she relies on two cases. The first is Big M Drug Mart Ltd. (para. 4.02(1)). In that case the constitutional validity of the Lord's Day Act was challenged.

In the second case: Videof licks Ltd. et al. (para. 4.02(2)), the original appellants claimed an exemption on religious grounds from the application of the Retail Business Holidays Act for carrying on business on a Sunday.

4.03.2 Big M Drug Mart Ltd. case

With respect to the approach to take to this kind of Charter challenge, counsel for the appellant refers to the reasons for judgment of Mr. Justice Dickson (as he then was) at page 334 (D.L.R. 351-52):

In short, I agree with the respondent that the legislation’s purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test. If the legislation fails the purpose test, there is no need to consider further its effects, since it has already been demonstrated to be invalid. Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose.

In Big M Drug Mart Ltd. case, the Lord's Day Act was held to have an invalid purpose, so it was not necessary to further consider the effects of the legislation.

4.03.3 Videoflicks case

In that case the challenged legislation, the Retail Business Holidays Act, was held to be inactive for a valid legislative purpose within the jurisdiction of the Ontario Legislature, mainly providing holidays on certain days to employees.

Tarnopolsky, J.A., who wrote the decision for the Ontario Court of Appeal, put the issue at page 414 (D.L.R. 29) under the heading "The 'effect' test":

The “effect” test

The issue here, as indicated earlier, is whether this Court, having held that the Retail Business Holidays Act is a law with a secular “purpose” or “intent”, can also conclude that the Act infringes s. 2(a) of the Charter on the ground that its “effect” is to infringe freedom of conscience or religion. In short, can a law having a valid “purpose”or “intent”, as far as legislative jurisdiction is concerned, still be held to infringe the Charter because of its “effect”?

At pages 415-16 (D.L.R. 30-1), Tarnopolsky, J.A. said:

Regardless of whether the courts have, with respect to the determination of the distribution of powers and the characterization of laws in relation thereto, looked to “intent” or “effect” or to both, as in Re Reciprocal Insurance Legislation (1924), 41 C.C.C. 336 at pp. 343-6, [1924] 1 D.L.R. 789 at pp. 794-7, [1924] A.C. 328 at pp. 337-40 sub nom. A.-G. Ont v. Reciprocal Insurers et al., in my view the interpretation of the Charter necessarily requires an assessment of the “effect” of impugned legislation. Intent and purpose will undoubedly still have relevance. For the most part, however, in determining the appropriate balance between government action on the one hand and individual rights as set out in the Charter on the other, it will be the determination of the “effect” or “effects” of impugned legislation that is most important. While a law may have a legitimate purpose, its actual operation may result in the infringement of rights and freedoms guaranteed by the Charter. In the absence of legislative resort to s. 33 of the Charter, it will be rare indeed that legislation will have the direct and open purpose of taking away Charter rights or limiting Charter freedoms. An adverse impact, however, can occur as a result of the operation and enforcement of legislation or even because of its intended scope. To ignore the “effect” of the Act in issue before this Court would be to ignore reality and to concede the rights of the individual or a minority to the interests of the majority, even if these interests appear legitimate as far as the majority are concerned.

Tarnopolsky, J.A. applied the above principles to the facts of Videoflicks case at page 423 (D.L.R. 38-9):

However, with respect to those appellants who do sincerely observe a day other than Sunday as the sabbath by having to close their business establishments, the effect is dramatically different. As discussed previously, a law which prohibits certain practices which are an essential part of one’s religion must be considered an abridgement or infringement of freedom of religion. This is so even though the impact on religion occurs, as here, in an indirect sense. While the Act does not require that one work on one’s sabbath, it nevertheless constitutes a major inducement to do so. For those who observe a sabbath other than Sunday, being forced to close on both days of a week-end or, for that matter, any two days in a week, when one’s competitors can remain open for six days, makes observance of one’s sabbath financially onerous.

I refer to those who “sincerely” observe a day other that Sunday as the sabbath. In my view, where one claims exemption on grounds of religion or conscience to a particular government regulation or requirement, one must be prepared to show that the objection is based upon a sincerely held belief based upon a lifestyle required by one’s conscience or religion.

Counsel for the appellant contends that the instant case is similar to the above despite the fact that the Income Tax Act is enacted for a valid purpose. It has the effect of requiring the appellant “to participate through her tax dollars to pay for certain activities which she cannot, in all conscience, do and which are contrary as well to her religious beliefs” (T.S., p. 82).

Those practices, which are prohibited by the dictates of the conscience or religion, “must be considered an abridgement of the freedom to conscience and religion, even though the impact occurs indirectly"" (T.S., p. 82).

A-2 Second Argument of the Appellant

4.03.4 The second argument of the counsel for the appellant deals with the scope of paragraph 2(a) of the Charter. In sum, she argues that the said provision includes the right to take action based on one"s conscience and religion.

The Court is again referred to the Big M Drug Mart Ltd. case. It is at page 344 (D.L.R. 359-60) under the heading “The Purpose of Protecting Freedom of Conscience and Religion”, that the Supreme Court states that the approach that should be taken in defining the rights and freedoms set out in the Charter is with respect to their purpose:

(iii) The Purpose of Protecting Freedom of Conscience and Religion

This Court has already, in some measure, set out the basic approach to be taken in interpreting the Charter. In Hunter v. Southam Inc., [1984] 2. S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court’s decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.

4.03.5 Mr. Justice Dickson, after discussing the historical context and reviewing some of the history of freedom of conscience and religion in North America, made the following comments at pages 346-47 (D.L.R. 361-62):

Viewed in this context, the purpose of freedom of conscience and religion becomes clear. The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously-held beliefs and manifestations and are therefore protected by the Charter. Equally protected, and for the same reasons, are expressions and manifestations of religious non-belief and refusals to participate in religious practice. It may perhaps be that freedom of conscience and religion extends beyond these principles to prohibit other sorts of governmental involvement in matters having to do with religion. For the present case it is sufficient in my opinion to say that whatever else freedom of conscience and religion may mean, it must at the very least mean this: government may not coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose. I leave to another case the degree, if any, to which the government may, to achieve a vital interest or objective, engage in coercive action which s. 2(a) might otherwise prohibit.

According to counsel for the appellant, that issue, which the Supreme Court of Canada leaves open in the Big M Drug Mart Ltd. case, is essentially the same as the instant case.

4.03.6 To discover what is meant by freedom of conscience and religion, it is important to quote definitions:

The Oxford English Dictionary defines “conscience” and “conscientious” as follows:

Conscience ... 4. The internal acknowledgement or recognition of the moral quality of one’s motives and actions; . . . the faculty or principle which pronounces upon the moral quality of one’s actions or motives, approving the right and condemning the wrong.

Conscientious ... Obedient or loyal to conscience; habitually governed by a sense of duty; scrupulous.

In the submission of counsel for the appellant: “conscience is something personal. Conscience dictates the way people and freedom of conscience must permit the action or non action dictated by conscience.”

In the Canadian Bill of Rights, there is no reference to freedom of conscience, simply to “freedom of religion".

However, in the Universal Declaration of Human Right, Article 18 says:

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

4.03.7 The Videoflicks case, at page 420 (DLR 35) under the heading "Freedom of Conscience and Religion under the Charter" is also helpful in the definition of these terms:

Freedom of Conscience and Religion under the Charter

What follows is in no way to be taken as an exhaustive definition of the fundamental freedom of religion embodied in s. 2(a) of the Charter. In my view, while it would certainly include the rights enunciated by Ritchie J. in Robertson and Rosetanni, supra, that definition is too restrictive. Freedom of religion goes beyond the ability to hold certain beliefs without coercion and restraint and entails more than the ability to profess those beliefs openly. In my view, freedom of religion also includes the right to observe the essential practices demanded by the tenets of one's religion and, in determining what those essential practices are in any given case, the analysis must proceed not from the majority's perspective of the concept of religion but in terms of the role that the practices and beliefs assume in the religion of the individual or group concerned.

At page 422 (D.L.R. 37-8), Tarnopolsky, J.A. said:

In my view, essentially the same reasoning would apply to the fundamental freedom of conscience, except that freedom of conscience would generally not have the same relationship to the beliefs or creed of an organized or at least collective group of individuals. None the less, and without attempting a complete definition of freedom of conscience, the freedom protected in s. 2(a) would not appear to be the mere decision of any individual on any particular occasion to act or not act in a certain way. To warrant constitutional protection, the behaviour or practice in question would have to be based upon a set of beliefs by which one feels bound to conduct most, if not all, of one’s voluntary actions. While freedom of conscience necessarily includes the right not to have a religious basis for one's conduct, it does not follow that one can rely upon the Charter protection of freedom of conscience to object to an enforced holiday simply because it happens to coincide with someone else's sabbath. Rather, to make such an objection one would have to demonstrate, based upon genuine beliefs and regular observance, that one holds as a sacrosanct day of rest a day other than Sunday and is thereby forced to close one's business on that day as well as on the enforced holiday. No appellant informed this Court of any such fundamental belief based upon conscience rather than religion.

4.03.8 Counsel for the appellant suggests in her conclusion that freedom of conscience and religion, guaranteed in section 2 of the Charter, must not only guarantee the right to believe deeply in something, but also to act on those beliefs.

The appellant relies on the whole of paragraph 2(a), the “freedom of conscience and religion". “Her conscience," said her counsel, “and her religion are inextricably woven together, although that will not be the case with all individuals. . . . The paying for military activity is contrary to both her conscience and religion, and if the right guaranteed in section 2(a) of the Canadian Charter of Rights and Freedoms is to have any meaning at all, it must permit her to follow the dictates of her conscience and religion in this regard, and in this action” (T.S., pp. 93-94).

A-3 Third Argument of the Appellant

4.03.9 The third argument of the appellant concerns section 1 of the Charter. The appellant argues that the Charter guarantees the rights and freedoms set out within it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

4.03.10 In the Videoflicks case, at pages 428 and 429, Tarnopolsky, J.A. shows that the burden of proof under section 1 of the Charter, in showing that there is a reasonable limit prescribed by law which is demonstrably justifiable in a a free democratic society, is on the party who would seek to uphold the validity of the legislation.

Counsel for the appellant contends this burden rests on the respondent's shoulders.

Before concluding, she referred again to the reasons for judgment of Dickson, J. in the Big M Drug Mart Ltd. case at page 346 (D.L.R. 361):

It should also be noted, however, that an emphasis on individual conscience and individual judgment also lies at the heart of our democratic political tradition. The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self- government. It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democractic [sic] political system that American jurisprudence has emphasized the primacy or “firstness” of the First Amendment. It is this same centrality that in my view underlies their designation in the Canadian Charter of Rights and Freedoms as “fundamental”. They are the sine qua non of the political tradition underlying the Charter.

4.03.11 The learned counsel submits that in light of these comments, the burden which the Minister must carry with respect to section 1 of the Charter is a heavy one: "How can it be in a free democratic society that people are forced to pay, this appellant is forced to pay for military purposes when, by so doing, it contravenes her deeply held beliefs” (T.S., p. 99).

The money was deposited in the Peace Tax Fund in trust for the government “allowing [the appellant] to pay her taxes into a fund which the government would not use for military related purposes, would not in any way impair the government's ability to raise revenue, or to implement policy objectives of the majority,” said counsel for the appellant (T.S., p. 97).

B. Arguments of Counsel for the Respondent

B-1 First Argument of Counsel for the Respondent

4.03.12 Referring to statutory law:

(a) from the Income Tax Act (para. 4.03.13),

(b) from the Financial Administration Act (para. 4.03.14) and

(c) from the National Defence Act (para. 4.03.15),

counsel for the respondent argues that the Tax Court of Canada has no jurisdiction to hear the case.

4.03.13 To begin, counsel for the respondent drew upon the following provisions of the Income Tax Act:

Subsection 117(5.2) — Calculation of the tax payable which is not under appeal in this case.

Subsection 152(1) — The duty of the Minister of National Revenue to examine the return, to assess and to determine the amount of refund and the amount of tax, if any, to be paid.

Section 156 — The tax to be paid must be paid to the Receiver General.

Section 165 — The taxpayer's right to object to the assessment.

Section 169 — The taxpayer's right to appeal and to have assessment vacated or varied.

Section 171 — The power of the Tax Review Board (now the Tax Court of Canada) concerning the manner in which an appeal may be disposed of: either dismissed or allowed and vacated, allowed and varied, or allowed and referred back to the Minister for reconsideration and reassessment.

Section 220 — The duty of the Minister to administer and enforce the Act.

Section 222 — Taxes payable are debts due to Her Majesty.

Counsel for the respondent submits that once an amount is payable, the Minister's function is complete because the assessment then becomes a debt due to Her Majesty, which can be collected in the Federal Court of Canada.

Moreover, nowhere in the Income Tax Act is there any duty on the Minister to learn what happens to the money once it has been assessed. It is paid to the Receiver General and it becomes part of the Consolidated Revenue Fund.

As the Tax Court's jurisdiction also flows from the Income Tax Act, counsel for the respondent submits that the said Court has no jurisdiction to be concerned with the fate of the taxes once they are duly assessed; in the instant case the appellant has admitted that the taxes are correctly assessed pursuant to the Income Tax Act.

4.03.14 Statutory Provisions of the Financial Administration Act, R.S.C. 1970,

c. F-10, as amended.

Counsel for the respondent also invoked statutory provisions in the Financial Administration Act. The Minister of Finance is responsible for that particular Act, not the Minister of National Revenue.

Section 5 — The Treasury Board has some input to administer the Consolidated Revenue Fund into which taxes are deposited.

Sections 8 and 9 — Set out the power of the Minister of Finance, who has the supervision, control and direction of all matters relating to the financial affairs of Canada.

Section 17 — The Governor in Council, on the recommendation of the Treasury Board, can order remission of tax.

The learned counsel submits that, as the appellant does not object to the Income Tax Act nor to the tax assessed pursuant to the said Income Tax Act, and as she does not want to pay part of it because this offends her conscience, the route she must pursue is not in an appeal to the Tax Court of Canada, but through a request to the Governor in Council for a remission of the 10.5 per cent of tax involved, amounting to $1,675.58. The Tax Court of Canada, according to counsel for the respondent, cannot deal with remission orders.

Finally, referring to sections 19 and 21 of the Financial Administration Act, the counsel contends that it is Parliament which decides the destination of the revenue, not the Minister of National Revenue.

4.03.15 Statutory Provisions from the National Defence Act, R.S.C. 1970, c. N-4, as amended.

Section 4 of the National Defence Act grants the Minister of National Defence control and management of all matters relating to national defence, including preparation for civil defence against enemy action. Canada IS not at war.

The expenses relating to national defence mainly concern the protection of Canada against outside forces. Despite the fact that the appellant’s beliefs are genuine, the counsel says the guarantee of freedom of conscience and religion is not an absolute freedom that must be upheld against any other interest and against any other law in this country.

The Charter is the supreme law. If there is anything in the Income Tax Act which offends the Charter, the Income Tax Act must be put aside, except where section 1 of the Charter applies. However, the counsel for the respondent contends, there is very clear evidence indicating nothing in the Income Tax Act as such offends the Charter.

The appellant does not refuse to pay her taxes. She merely wants to be sure that none of her money goes towards military purposes. Even if the Court would share her view, what guarantee can it give that that part of her assessment, the amount of $1,675.58, will not be used for national defence, asks counsel for the respondent. All the revenue goes into the Consolidated Revenue Fund. Maybe none of her tax will be eventually allocated to defence, maybe all her tax shall be allocated to this purpose. “Where is the line?” the counsel argues.

B-2 The Second Argument of Counsel for the Respondent

4.03.16 Assessing and collecting taxes is a secular purpose. The Income Tax Act imposes no prohibition upon one religious group over another and it does not protect one religious group from another.

Counsel for the respondent refers to the Supreme Court decision in the Big M Drug Mart Ltd. case, at pages 336-37 (D.L.R. 354), under the heading "Freedom of Religion":

Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. . . . Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is forced to act in a way contrary to his beliefs or his conscience.

Counsel for the respondent submits that the limitation placed on a guaranteed freedom is the necessity of protecting public safety, order, health and morals. “I would say that the payment of taxes is one such necessary limitation" (T.S., pp. 116-117).

Counsel for the respondent goes one step further by saying that the Government of Canada, in spending money for the defence of the nation, also falls within the “reasonable limits” provided in section 1 of the Charter.

B-3 The Third Argument of Counsel for the Respondent

4.03.17 The counsel referred to the following excerpt of Dickson, J. in the Big M Drug Mart Ltd. case at pages 345-46 (D.L.R. 360-61):

Beginning, however, with the Independent faction within the Parliamentary party during the Commonwealth or Interregnum, many, even among those who shared the basic beliefs of the ascendent religion, came to voice opposition to the use of the State’s coercive power to secure obedience to religious precepts and to extirpate non-conforming beliefs. The basis of this opposition was no longer simply a conviction that the State was enforcing the wrong set of beliefs and practices but rather the perception that belief itself was not amenable to compulsion. Attempts to compel belief or practice denied the reality of individual conscience and dishonoured the God that had planted it in His creatures. It is from these antecedents that the concepts of freedom of religion and freedom of conscience became associated, to form, as they do in s. 2(a) of our Charter, the single integrated concept of “freedom of conscience and religion”.

This sets paragraph 2(a) of the Charter, granting the freedom of conscience and religion, in its right perspective. Counsel for the respondent said: “It is there because that was meant to be guarded against.” In the same line of thinking he referred further to page 350 (D.L.R. 364) of the Big M Drug Mart Ltd. case:

In my view, the guarantee of freedom of conscience and religion prevents the government from compelling individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to others. The element of religious compulsion is perhaps somewhat more difficult to perceive (especially for those whose beliefs are being enforced) when, as here, it is non-action rather than action that is being decreed, but in my view compulsion is nevertheless what it amounts to.

“Taxation,” submits counsel for the respondent, “does not have to do with religion” (T.S., p. 119).

Moreover, counsel for the respondent said (T.S., pp. 121-122):

I do not think by any stretch of the imagination, paying taxes has any religious significance to anyone, and the government, by assessing taxes, is not asking or compelling individuals to perform an otherwise harmless act because of others who believe in it. And that is the kind of religious compulsion that this case talks about.

Now, because nothing is imposed on this taxpayer for religious purposes, and the taxpayer is not prevented from doing anything, nothing prevents her from donating money for peace purposes, the State is not preventing her from that, there is no religious coercion, and no compulsion to do anything, especially in view that she has admitted that the tax payable has been properly calculated, and that she feels that paying taxes is a privilege.

4.03.18 Operation Dismantle Inc., et al. case

Counsel for the respondent refers to the Operation Dismantle case (para. 4.02(3)). This case also led to a decision of the Supreme Court of Canada, written by Mr. Justice Dickson (as he then was). Dickson, J. addresses an attempt to prevent the government from allowing cruise missile testing in Canada.

The argument was that allowing this missile testing would bring a risk of war, because it would prompt other foreign nations to act in a particular fashion, based on the Canadian government's actions with regard to allowing these tests.

Section 7 of the Charter was involved. It reads as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

At page 453 (D.L.R. 489), Mr. Justice Dickson discussed the statement of claim’s mention of the risk of war.

Finally, paragraph (e) asserts that the development of the cruise will lead to an escalation of the nuclear arms race. This again involves speculation based on assumptions as to how foreign powers will react. One could equally argue that the cruise would be the precipitating factor in compelling the nuclear powers to negotiate agreements that would lead to a de-escalation of the nuclear arms race.

In substance, counsel for the respondent refers to the expenditures made by the Minister of National Defence in 1982. They are far from being as dangerous as the development of the cruise.

Mr. Justice Dickson summarized his analysis of the statement of claim at 454 (D.L.R. 490):

What can be concluded from this analysis of the statement of claim is that all of its allegations, including the ultimate assertion of an increased likelihood of nuclear war, are premised on assumptions and hypotheses about how independent and sovereign nations, operating in an international arena of radical uncertainty, and continually changing circumstances, will react to the Canadian government’s decision to permit the testing of the cruise missile.

The point of this review is not to quarrel with the allegations made by the appellants about the results of cruise missile testing. They are, of course, entitled to their opinion and belief. Rather, I wish to highlight that they are raising matters that, in my opinion, lie in the realm of conjecture, rather than fact. In brief, it is simply not possible for a court, even with the best available evidence, to do more than speculate upon the likelihood of the federal cabinet’s decision to test the cruise missile resulting in an increased threat of nuclear war.

In the instant case, counsel for the respondent says: "We cannot do more than speculate whether this money allocated by the Cabinet to defend [sic] spending would lead to any violent action. We are even here more removed, because we are only talking with an assessment of tax.” (T.S., pp. 124-25)

At pages 455-56 (D.L.R. 491) of the Operation Dismantle case, Mr. Justice Dickson, considering the duty put on the government by section 7 of the Charter, says:

(b) The Absence of a Duty on the Government to Refrain from Allowing Testing

I do not believe the action impugned in the present case can be characterized as contrary to the duties of the executive under the Charter. Section 7 of the Charter cannot reasonably be read as imposing a duty on the government to refrain from those acts which might lead to consequences that deprive or threaten to deprive individuals of their life and security of the person. A duty of the federal cabinet cannot arise on the basis of speculation and hypothesis about possible effects of government action. Such a duty only arises, in my view, where it can be said that a deprivation of life and security of the person could be proven to result from the impugned government act.

Later, at page 456 (D.L.R. 491-92), we also added:

A person, whether the government or a private individual, cannot be held liable under the law for an action unless that action causes the deprivation, or threat of deprivation, of legal rights. And an action cannot be said to cause such depriva- tion where it is not provable that the deprivation will occur as a result of the challenged action. I am not suggesting that remedial action by the courts will be inappropriate where future harm is alleged. The point is that remedial action will not be justified where the link between the action and the future harm alleged is not capable of proof.

According to counsel for the respondent, in the instant case, there is no evidence that assessing the full amount of tax including 10.5 per cent, to which the appellant objects, will result in an infringement upon her freedom or violation of her religious beliefs or her conscience. The coercive link is not there, and assessment of tax cannot produce this link.

It is appropriate to quote the decision of Mme. Justice Wilson from the same case at page 488 (D.L.R. 516-17):

In my view, even an independent, substantive right to life, liberty and security of the person cannot be absolute. For example, the right to liberty, which I take to be the right to pursue one’s goals free of governmental constraint, must accommodate the corresponding rights of others. The concept of “right” as used in the Charter postulates the inter-relation of individuals in society all of whom have the same right. The aphorism that “A hermit has no need of rights” makes the point. The concept of “right” also premises the existence of someone or some group against whom the right may be asserted. As Mortimer J. Adler expressed it in Six Great Ideas (1981), at p. 144:

Living in organized societies under effective government and enforceable laws, as they must in order to survive and prosper, human beings neither have autonomy nor are they entitled to unlimited liberty of action. Autonomy is incompatible with organized society. Unlimited liberty is destructive of it.

The concept of “right” as used in the Charter must also, I believe, recognize and take account of the political reality of the modern state. Action by the state or, conversely, inaction by the state will frequently have the effect of decreasing or increasing the risk to the lives or security of its citizens.

4.03.19 Baxter v. Baxter

Counsel for the respondent also refers to the Baxter case (para. 4.02(4)) heard by Pennell, J. of the Ontario High Court of Justice. The argument by the husband in a divorce action is that termination of the marriage by his wife would infringe upon his freedom to practise his religious beliefs through marriage.

Pennell, J. said at page 560 (O.R. 351):

The Charter stands as command that an individual’s religious scruples are free from government interference. That command the government must obey. However, I find that a grant here of decree absolute would not be violative of freedom of religion within the meaning of the Charter. For me, the opinion of Mr. Justice Douglas in Sherbert v. Verner et al (1963), 374 U.S. 398 at p. 416, has a peculiar value in relation to the matter now under consideration. To paraphrase borrowed language, the Charter is written in terms of what the State cannot do to the individual, not in terms of what the individual can exact from the State. The fact that the government cannot exact from the individual a surrender of the smallest part of his religious scruples does not mean that he can demand of the government exclusion of his marriage from the provisions of the Divorce Act, the better to exercise his religious beliefs. The Divorce Act is not an enactment which operates so as to discriminate against religion as such.

Counsel for the respondent submits that the same situation exists in the instant case. She says the appellant is trying to exact something from the government "that is not what is meant in the Charter. She cannot demand to be relieved of paying that part of the taxes to which she objects to better follow her religious beliefs and her conscience” (T.S., p. 130).

Moreover, according to the counsel, if the assessment of tax is such that it infringes upon the taxpayer's religious freedom, then it must be reasonably and demonstrably justified in a free and democratic society, pursuant to section 1 of the Charter.

She admits that the onus lies on the Minister to prove it but contends the “assessment of taxes, collection of taxes for the common operation of Canada as a nation is such a limit” (T.S., p. 131).

4.03.20 United States v. Lee

The American case of Lee (para. 4.02(6)), referred to by counsel for the respondent, is the case of a member of the Old Order Amish religion who objected to paying social security tax on the basis that his religion forbids him to take benefits, or to pay for benefits, because the Amish firmly believe that they must care for their own people.

The decision was delivered February 23, 1982 by Burger, C.J. of the United States Supreme Court.

The first point raised was whether freedom of belief was violated. The Court accepted Mr. Lee's contention at page 132 “that both payment and receipt of social security benefits is forbidden by the Amish faith. Because the payment of the taxes or receipt of benefits violates Amish religious beliefs, compulsory participation in the social security system interfaces with their free exercise rights".

At page 132, the learned Chief Judge stated:

[4] The conclusion that there is a conflict between the Amish faith and the obligations imposed by the social security system is only the beginning, however, and not the end of the inquiry. Not all burdens on religion are unconstitutional. . .. The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.

Later at page 133, Burger C.J. stated:

The difficulty in attempting to accommodate religious beliefs in the area of taxation is that "we are a cosmopolitan nation made up of people of almost every conceivable religious preference/’ Braunfeld, supra, at 606, 6 L Ed 2d 563, 81 S Ct 1144, 17 Ohio Ops 2d 241. The Court has long recognized that balance must be struck between the values of the comprehensive social security system, which rests on a complex of actuarial factors, and the consequences of allowing religiously based exemptions. To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good. Religious beliefs can be accommodated, see e.g., Thomas, supra; Sherbert, supra, but there is a point at which accommodation would “radically restrict the operating latitude of the legislature.” Braunfeld, supra, at 606, 16 L Ed 2d 563, 81 S Ct 1144, 17 Ohio Ops 2d 241.

He also gave an example, the facts of which are exactly those of the instant case, at page 134:

If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax. The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief. See, e.g. Lull v Commissioner, 602 F2d 1166 (CA4 1979), cert denied, 444 US 1014, 62 L Ed 2d 643, 100 S Ct 664 (1980); Autenrieth v Cullen, 418 F2d 586 (CA9 1969), cert denied, 397 US 1036, 25 L Ed 2d 647, 90 S Ct 1353 (1970). Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.

4.03.21 Barton v. Commissioner of Internal Revenue

The facts in the Barton case (para. 4.02(7)) decided on July 13,1984 by the United States Court of Appeals were exactly the same as those in the instant case.

The Court said at page 823:

Assuming the existence of a right to conscientious objections to war protected by the ninth amendment of the United States Constitution, such a right would not justify appellant’s failure to pay the tax deficiency at issue in this case.

“[W]hen objection is made that the exercise of a federal power infringes upon rights reserved by the ninth and tenth amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the ninth and tenth amendments, must fail.” United Public Workers v. Mitchell, 330 U.S. 75, 96, 67 S.Ct. 556, 567, 91 L.Ed. 754 (1947). Appellant’s objection is to an exercise of power granted by the Constitution. Article !, section eight of the Constitution specifically grants Congress the power to collect taxes and use the revenues for the national defense. Appellant has not demonstrated that Congress has exceeded any specific limitation on this authorization to collect taxes. The ninth amendment, therefore, does not validate his claim for a tax credit proportionate to the percentage of the national budget expended for defense.

4.03.22 Jurisdiction of the Tax Court of Canada

4.03.22.1 The first point at issue in this case is whether the Tax Court of Canada is “a court of competent jurisdiction", as provided in subsection 24(1) of the Charter. It reads as follows:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The Supreme Court of Canada, in the Mills case (para. 4.02(10)), stated that a person in possession of a right must have a court in which to enforce that right and, in the absence of express legislation, that Court is the superior court.

The Treasury Board and the Governor in Council are not courts and therefore the respondent's position (para. 4.03.14) cannot stand unless the reference to those two organisms is only a suggestion to the appellant to present a request after a court will have dismissed her appeal, so that she can attempt to obtain a remission of tax under section 17 of the Financial Administration Act.

4.03.22.2 The respondent's argument denying the jurisdiction of the Tax Court of Canada in the instant case can be summarized as follows:

(a) as the assessment issued by the respondent is the same as the one voluntarily made by the appellant in filing her return (para. 3.01);

(b) as the appellant admits that the calculation of the tax payable is not at issue (para. 3.01);

(c) as the dispute does not concern the assessment but the use made of the money by the government after it is received by the Receiver General and deposited in the Consolidated Revenue Fund;

(d) as the Minister of National Revenue has no authority pursuant to the Income Tax Act to administer the money once it is deposited in the Consolidated Revenue Fund;

(e) as the taxpayer may appeal to the Tax Court of Canada only to have an assessment vacated or varied, pursuant to section 169 of the Act;

therefore the Tax Court of Canada has no jurisdiction to hear an appeal, the object of which being the use of money paid resulting from an assessment after it is deposited in the Consolidated Revenue Fund.

4.03.22.3 In my opinion, the solution of this problem can be found in section 151 of the Income Tax Act which provides that “every person required by section 150 to file a return of income shall in the return estimate the amount of tax payable.”

The appellant, in the computation of her tax payable for the year 1982, deducted $1,675.82 having regard to paragraph 2(a) of the Charter quoted above.

Despite the fact that the Act referred to to claim a deduction is not the Income Tax Act, this does not mean the Tax Court of Canada does not have jurisdiction to hear the appellant’s appeal.

In my view, indeed, the Tax Court of Canada has the jurisdiction to hear all contentions of any appellant related to the computation of his net income, his taxable income or his tax.

4.03.23 Even if the assessment were objectively and in reality an infringement upon the appellant’s freedom of conscience and religion, it is the Court's opinion that the Canadian tax system, which is required to collect money to provide for the needs of the nation, which include its defence, would be a reasonable limit which must be imposed in a free democratic society, pursuant to section 1 of the Charter.

In this respect, I refer to the Lee case delivered by the United States Supreme Court, summarized in paragraph 4.03.20, in which I cite lengthy quotations from which one can read:

. . . To maintain an organized society that guarantees religious freedom to a great variety of faiths, requires that some religious practices yield to the common good.

. . . Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.

4.03.24 In the Lee case, the Supreme Court of the United States before giving the above quoted reasons, had first arrived at the conclusion “that both payment and receipt of social security benefits are forbidden by the Amish Faith’ (para. 4.03.20).

In the instant case, I have a great doubt that the payment of tax be against the “Spirit of Christ” that is the basis of the appellant’s belief as invoked by her in referring to the declaration (Exhibit A-3) presented to Charles Il in 1660 quoted in paragraph 3.05 above.

Jesus said to the Pharisees: “Render unto Caesar the things which are Caesar’s” (Mat. 22(15-22) Mk 12(13-17) Lk 20 (20-26)). If one doubt about the meaning of these words, he only has to refer to Saint Paul, one of the best interpreters of the Christianity when he wrote to the Christian Romans: . . for conscience sake . .. render to all their dues: tribute to whom tribute is due . . .” (Romans 13 (5-7)).

Jesus and Paul, as citizens of Judah, could not ignore that an important part of the Roman Empire's budget was used for military purposes.

Despite the fact that one’s conscience and religion are deeply personal (paras. 4.03.6 and 4.03.7), an infringement of freedom and religion must have an objective basis. If the basis of an infringement is purely subjective, a scrupulous person would have more right pursuant to paragraph 2(a) of the Charter than another citizen.

5. Conclusion

For these reasons, the appeal is dismissed.

Appeal dismissed.