Wells v. R., [1998] 1 CTC 2118

Bowie T.C.J.:

These appeals were originally scheduled to be heard in September 1996, along with seven others. [1] The pleadings in all seven appeals are identical in their terms; all of them challenge the constitutional validity of paragraph 122.5(2)(c) of the Income Tax Act. The other appeals were heard at that time, but this case was adjourned due to illness of the Appellant. The appeals came on again for hearing before me on March 12, 1997. At that time the Appellant was brought to Fredericton, New Brunswick from Renous, where he is incarcerated, in order to be present for the hearing of his appeals. He was represented by Mr. Norville Getty of the New Brunswick bar. Mr. Getty requested a further adjournment, on the basis that he was recently retained, and had not read the pleadings or had the opportunity to consult with his client. At that time counsel for the Respondent formally admitted on the record that all of the allegations of fact in the Notice of Appeal are true. A similar admission had been made in the other seven appeals.

After a recess sufficient to permit Mr. Getty to peruse the pleadings, consult with the Appellant, and read my Reasons for Judgment delivered in the other seven cases, he advised me that the Appellant would not call any evidence. It was then agreed that the appeals should proceed by way of written argument to be filed by the parties in accordance with the following schedule:

the Appellant’s argument to be filed by May 30, 1997

the Respondent’s argument to be filed by June 20, 1997

the Appellant’s reply to be filed by June 30, 1997

On June 17, 1997, no argument having been filed by Mr. Getty, and he not having moved to vary the schedule established, the trial co-ordinator wrote to him to advise that “...unless your argument is filed within 10 days from the receipt by you of this letter [Judge Bowie] will proceed to give judgment without the benefit of your submissions.” Mr. Getty still has not been heard from, although the time for filing his argument elapsed more than a month ago.

The present case cannot be distinguished from the other seven to which I have referred above. As I pointed out in my Reasons for Judgment in those cases, I am bound by the decision of the Federal Court of Appeal in Lister v. 7?. [2] to reject the constitutional attack on section 122.5(2)(c) of the Act.

These appeals are dismissed for the reasons given by me in the other seven cases, a copy of which is attached hereto as Appendix ‘A’.

Appeals dismissed.

Appendix ‘A’

Reasons for Judgment

Bowie T.C.J.

These seven appeals were heard together on common evidence. Most of the relevant facts were agreed upon by way of the admission by the Respondent of the facts alleged in the Notices of Appeal, which are identical in their wording. These admitted facts were supplemented by the evidence of the Appellants Fleming and Allen.

At the opening of the trial Mr. Miller, the agent for the Appellant Allen, requested that I adjourn the hearing. The basis of his request was that he wished to obtain opinion evidence to be adduced at the hearing. I understood the evidence which he wished to call to be directed to the question whether the legislation being attacked under the Canadian Charter of Rights and Freedoms (the Charter) could be justified under section 1 of the Charter. He referred to it as evidence similar to that which was led in Belczowski v. R.\ [3] In that case, section 1 of the Charter was necessarily in play, as the legislation under attack removed the right to vote from the plaintiff and other incarcerated citizens. As counsel for the Crown took the position that she did not rely on section 1 in this case, the proposed evidence would have been superfluous. I therefore refused the requested adjournment. Mr. Miller also indicated that he expected and wished to obtain some assistance with respect to the argument of the case from a Professor McEvoy, who was temporarily unavailable. I therefore offered him the opportunity to submit written argument to supplement his oral argument. The time within which written argument was to be filed has now long passed and none has been filed, and so I proceed to give judgment without it.

Each of the Appellants was, in respect of each of the years under appeal, detained in a penal institution for a period of six months or more during the year, and was so detained at the end of each of the years. They thus are all, for the relevant years, persons described in subparagraph 122.5(2)(c) of the Income Tax Act [4] (the Act). As such, they were denied the Federal Sales Tax credit (FST credit) and the Goods and Services Tax credit (GST credit) for which they would otherwise have been eligible. None of this is in dispute.

There is no dispute, either, that each of these Appellants made purchases of taxable goods during the years in question, and that the prices they paid for those goods contained an element of FST in the earlier years, and of GST in the later years. All of the Appellants work within the institutions in which they are incarcerated, at jobs for which they are paid on the basis of the minimum wage. Some of them earn more than others, but all of them have income tax, Canada Pension Plan contributions, and unemployment insurance premiums deducted from the wages paid to them. They can, and do, purchase such items as radio and television receivers, tapes and compact disc players, and the tapes and discs which they play, clothing, toiletries, hobby supplies, and the like. The amount of FST or GST paid by them on these purchases varies, of course, from one individual to another, but in some cases it is substantial.

The position advanced by the Appellants is that they are unfairly discriminated against by reason of their incarceration, and that their exclusion from the group of persons entitled to receive the credit in question is contrary to section 15(1) of the Charter [5] . They therefore ask that I strike down paragraph 122.5(2)(c) of the Act as unconstitutional.

This is not the first such case to be brought before this Court. In McKinnon v. Minister of National Revenue [6] , Sobier J. considered the judgments of the Supreme Court of Canada in Andrews v. Law Society (British Columbia)! [7] and Rudolph Wolff & Co. v. Canada®, [8] and concluded that, applying the principles set out there, the exclusion of prison inmates from the class of persons eligible to receive the tax credits was not discrimination contrary to section 15 of the Charter. Mogan J. reached the same result in Armstrong v.

(c) is, at the end of the year, confined to a prison or similar institution and has been so confined for a period of, or periods the total of which in the year was more than, 6 months.

R.?, [9] where he agreed with the reasoning of Sobier J. in McKinnon. I, too, agree with Judge Sobier’s reasoning.

In R. v. [10] Swain^Chief Justice Lamer said this about the operation and the purpose of section 15 of the Charter:

Furthermore, in determining whether the claimant’s s. 15(1) rights have been infringed, the court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure that the claim fits within the overall purpose of s. 15 - namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.

Persons incarcerated for a period of six months or more as the result of crimes for which they have been tried and found guilty do not by any stretch of the imagination fit this mold. The Supreme Court has recently been called upon to decide a number of cases involving section 15 of the Charter, and more specifically, what grounds of discrimination are analogous to the ones there enumerated [11] . These more recent cases are entirely consistent with the decisions relied upon by Sobier J., and with the approach described by Chief Justice Lamer.

Judge Mogan pointed out in his reasons in Armstrong that the Federal Court of Appeal had decided in Lister v. ft. [12] that no prohibited discrimination arose from the denial of the GST credit to children under the age of nineteen. Age is a ground enumerated in section 15; incarceration for crime is not. I therefore consider myself bound by the decision of the Federal Court of Appeal to reach the same result here. It would be contrary to all reason to conclude that denial of the credit on the basis of a ground not enumerated in section 15 is unconstitutional, while denial of the same credit on the basis of an enumerated ground is not.

The appeals are dismissed.