R. v. Lin, [1998] 1 CTC 298, 98 DTC 6459

Mr. Justice Hollinrake:

This is a motion for

... an Order pursuant, inter alia, to the inherent jurisdiction of this Honourable Court, that the execution of those sentences imposed upon the Appellant, PAUL YIN MEW LIN, by the Honourable Judge K.A.P.D. SMITH, a Provincial Court Judge in and for the Province of British Columbia, at the City of Vancouver, Province of British Columbia, on September 4, 1996 and varied, on appeal, by the Honourable Madam Justice BOYD, on May 28, 1997, be stayed pending the determination of the Appellant’s appeal against the Judgment of BOYD, J. (May 28, 1997) dismissing his appeal against his convictions (by SMITH, PCJ.), September 4, 1996 at the City of Vancouver, Province of British Columbia of offences contrary to the provisions of the “INCOME TAX ACT”, Section 231.2(l)(a);

The appellant was charged with failing to provide a signed statement of assets and liabilities as at December 31, 1989 (count 1) and December 31, 1992 (count 2) contrary to s.231.2(1)(a) and s.238(1 ) of the Income Tax Act.

He was convicted and the sentence imposed was $1,000 fine on each of the two counts/ID 10 days imprisonment and a compliance order was made under s.238(2) of the Act.

The execution of these sentences was stayed by order of Vickers J. in the Supreme Court of British Columbia pending the determination of conviction and sentence appeals to that Court as the Summary Conviction Appeal Court. On appeal, appeals against conviction were dismissed. As to the sentences, the Summary Conviction Appeal Court Judge said this:

The appeal against sentence is allowed in part to the extent that while the accused will be compelled to comply with the requirement letter, he will be entitled to immunity with respect to any subsequent derivative use of the information provided by the appellant.

This variation to the sentence appeals resulted from the finding of that judge that the Minister “was conducting a criminal investigation under the guise of an audit” which was the position of the appellant throughout. On this ground the appellant sought a judicial stay in the courts below and this was refused.

In his notice of application for leave to appeal from the order of the Summary Conviction Appeal Court Judge the appellant asserts

That the learned Judge erred, in law, in failing/refusing to grant the application of the Appellant to judicially stay the proceedings as against him; having regard to the fact that, in the premises, they constituted a colourable attempt by the Minister of National Revenue, Taxation, calculated to compel the Appellant, in the context of an ongoing penal investigation for offences contrary to the provisions of the “INCOME TAX ACT”, to waive and/or to abandon his right to silence (“CHARTER OF RIGHTS”, Section 7) and to be free of unreasonable search or seizure (“CHARTER OF RIGHTS”, Section 8), contrary to the principles of fundamental justice (“CHARTER OF RIGHTS”, Section 7).

During the course of the hearing before me I granted leave to appeal and the issue became whether or not I had jurisdiction to compel a stay of the compliance orders made under s.238(2) of the Income Tax Act. The Crown’s position is that no such jurisdiction exists. The appellant says I can make such an order (1) under the inherent jurisdiction of the Court; (2) under s.24( 1 ) of the Charter of Rights and Freedoms; and (3) by extending the time frame of the stay order of Mr. Justice Vickers in the Supreme Court of British Columbia to encompass this appeal and its final determination.

The position of the Crown at the hearing was that this was a criminal matter and its argument flowed from that premise.

The jurisdiction to stay the fines alone is found in s.683(5)(a) of the Criminal Code which now reads:

(5) Where an appeal or an application for leave to appeal has been filed in the court of appeal, that court, or a judge of that court, may where it considers it to be in the interests of justice, order that

(a) any obligation to pay a fine,

(b) any order of forfeiture or disposition of forfeited property,

(c) any order to make restitution under section 725 or 726,

(d) any order to pay a victim fine surcharge under section 727.9, or

(e) the conditions prescribed in a probation order under subsection 737(2)

be suspended until the appeal is determined.

Pursuant to that section I order the suspension of the obligation to pay these fines until this appeal is determined.

I turn now to the issue of whether or not I have jurisdiction to stay the compliance orders made by the Summary Conviction Appeal Court Judge. It is these orders that concern the appellant.

The Crown says, this being a criminal matter, the provincial Court of Appeal Act cannot apply to give the Court the jurisdiction it would not otherwise have and there is no statutory authority for such an order as the appellant now seeks with respect to the stay of these compliance orders. The Crown says that while it can be said this Court has “ancillary” jurisdiction it is clear from the authorities and in particular British Columbia Ferry Corp. v. British Columbia Ferry & Marine Workers Union (1979), 100 D.L.R. (3d) 705 (B.C. C.A.) at 711 that

... under the Act [Court of Appeal Act] this Court has only appellate jurisdiction, • supplemented by such original jurisdiction as is set forth in the Act, and it being confined to what may be necessary or incidental to the hearing and determination of any appeal.

In À. v. Banks (1990), 61 C.C.C. (3d) 189 (B.C. C.A.) this Court was asked to adjourn a sentence appeal and further for an order that the term of a probation order that the appellant not be found in British Columbia after a period of five days following his release from custody be suspended until the determination of the sentence appeal. In concluding the Court did not have jurisdiction to make this suspension order Lambert J.A. said at p. 191 :

I concede that the Court may have some ancillary powers. But, in my opinion, the power that the Court is called upon to exercise in this application is not a minor or incidental power but a power of sufficient importance that it cannot be regarded as having been conferred on the court unless it is specifically conferred by the Criminal Code. I consider that the fact that a similar power with respect to suspension of a driver’s licence was specifically set out in s.261 is an indication that the power that we are being asked to exercise is a power which does not exist unless it is specifically given. It is not specifically given in this case.

Counsel for the applicant also sought to rely on the general provisions of the Court of Appeal Act and in particular the provisions of s.9(4). In the decision of this Court in the R. v. Gelz (1990), 55 C.C.C. (3d) 425 at 427, 9 W.C.B. (2d) 569, Mr. Justice Seaton, in delivering the judgment of the court, confirmed that Provincial legislation cannot bestow jurisdiction in a Criminal Code matter and, specifically, that the Court of Appeal Act cannot confer that jurisdiction. I would follow that decision with respect to the argument that in a matter not dealt with in the Criminal Code the Court of Appeal Act should apply. It cannot apply.

For those reasons I consider that this court does not have jurisdiction in relation to the application for a suspension of the term of the probation order and I would refuse the suspension of the term of the probation order.

Since this decision s.683(5) has been amended to specifically provide that the Court or a judge may suspend a condition in a probation order. Counsel for the appellant submits that a condition in a probation order is the same as a compliance order under the Income Tax Act and that being so, I should conclude that I have jurisdiction to suspend these compliance orders under s.683(5) of the Criminal Code. With respect, I cannot agree. In my view the simple answer to this submission is that a condition in a probation order made under the Criminal Code is not a compliance order under s.238(2) of the Income Tax Act.

The appellant then says that I can turn to s.24(1) of the Charter of Rights and Freedoms as the basis for the jurisdiction to make the order sought. The answer to this submission is found in the judgment of this Court in R. v. Earle (1993), 36 B.C.A.C. 232 (B.C. C.A.). In that case the appellant sought leave to appeal as well as relief under s.24(l) of the Charter. In dismissing the motion for relief under the Charter the Chief Justice said:

Are we a court of competent jurisdiction within the meaning of s.24(1) of the Charter? The answer to this question is no. We are restricted to the powers granted to us by s.686 of the Criminal Code and we are not able to hear free standing applications for constitutional relief.

The submission of the Crown is that before s.24(1) of the Charter can be invoked it must be shown that there is a jurisdictional basis for the order sought. In view of my conclusion that there is no inherent jurisdiction or statutory authorization for the order sought by the appellant, it is my opinion that I cannot look to s.24(l) of the Charter for jurisdiction. To do so would be to entertain a “free standing application for constitutional relief’ which R. v. Earle tells us cannot be done.

Then there is the invitation of counsel for the appellant to extend the time frame of the stay order made by Mr. Justice Vickers in the court below. In my opinion, there is no jurisdictional basis to permit me to do that.

Since the hearing before me Crown counsel has brought to my attention the case of Kourtessis v. Minister of National Revenue (1993), 81 C.C.C.

(3d) 286 (S.C.C.) in the Supreme Court of Canada and has filed a written submission dealing with the impact or otherwise of that case on the issue before me. In response to this counsel for the appellant has filed a written submission.

Crown counsel’s position on Kourtessis is that it does not impact on the Crown’s position at the hearing and which I have set out above. Counsel in his written submissions says this:

Kourtessis (sic), supra, recognized that provincial civil appellate jurisdiction and procedure may, in some instances, have application to matters arising under a non-criminal head of federal power. However, it is clear from the judgments of both La Forest and Sopinka JJ. that where an appeal is taken under the provisions of the Criminal Code, that statute governs, subject to provisions of the offence creating federal enactment. In other words in the case at bar, matters of jurisdiction and procedure are governed by the Code, unless supplemented or overridden by a provision of the Income Tax Act. This follows from s. 34(2) of the Interpretation Act (Can.), which provides:

All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of that Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides. [emphasis added]

The application of the Code to tax offences falling under both ss 91(3) and 91(27) of the Constitution Act, 1982 was dealt with by La Forest J. (at pp. 72 S.C.R., 296 C.C.C.):

Such offences, of course, require a procedural scheme for their enforcement. As in the case of other federal statutes containing penal provisions, the procedure selected by Parliament is that set forth in the Criminal Code, R.S.C. 1985, c. C-46. Section 34(2) of the Interpretation Act, R.S.C., 1985, c. I-21, provides that the provisions of the Criminal Code are to apply to indictable and summary conviction offences created by Parliament unless the statute creating the offence provides otherwise. The Criminal Code, of course, provides for a comprehensive scheme of criminal procedure. ... [emphasis added]

It cannot be said that because s. 683(5) of the Code does not specifically address the “suspension” of a Compliance Order, this question falls to be dealt with under provincial legislation. As submitted above, in enacting s. 34(2) of the Interpretation Act, Parliament has “occupied the field”. All appeals taken with respect to federal offences, be they under the Code, the Income Tax Act, the Fisheries Act, the Controlled Drugs and Substance Act, etc., are governed by the Code, subject to what may be contained in other applicable federal statute. There is simply no room remaining in which provincial laws can operate.

I agree with this submission of the Crown and in my opinion Kourtes- sishas no impact on what I have set out above in these reasons.

In his submissions counsel for the appellant repeats his submission that the principle enunciated in R. v. Banks (above) cannot for the purposes of this motion, and, being mindful of “the nature of the legislation pursuant to which Lin was sentenced”, survive the coming into force on June 16, 1997 of the provisions of s. 683 (5)(a) and (e) of the Criminal Code. I have dealt with this submission above.

I have concluded on the facts of this case and the findings of the court below that I have no jurisdiction to entertain that part of the motion before me that seeks a stay or suspension of the compliance orders made by the Summary Conviction Appeal Court Judge.

That being so, the motion insofar as it relates to a stay or suspension of the compliance orders is dismissed. Leave to appeal is granted and there will be a stay of the payment of the fines. If the stay of payment of the fines requires any terms upon which counsel cannot agree that may be spoken to.

Leave to appeal granted. Stay granted in part.