Sobier
J.T.C.C.:-The
appellant
appeals
from
the
assessments
made
by
the
Minister
of
National
Revenue
(the
’’Minister”)
for
his
1986,
1987,
1988
and
1989
taxation
years,
whereby
the
Minister:
A.
attributed
additional
income
for
those
years
aggregating
$527,341
as
the
result
of
the
appellant
misappropriating
funds;
B.
added
interest
income
aggregating
$4,062
for
the
1988
and
1989
taxation
years;
and
C.
added
$950
additional
income
received
from
F.
Gallent
Enterprises
in
the
1986
taxation
year.
The
appellant
does
not
dispute
the
amounts
of
income
resulting
from
misappropriation
for
the
1986,
1987
and
1989
taxation
years,
but
he
does
dispute
approximately
$90,000
($89,985.54)
for
the
1988
taxation
year.
The
interest
income
set
forth
in
paragraph
B
above
was
earned
on
the
misappropriated
funds.
By
1986,
the
appellant
was
the
deputy
treasurer
of
the
town
of
Richmond
Hill,
Ontario
(the
"town”).
During
the
years
1986
through
1989
inclusive,
the
appellant
used
his
position
to
misappropriate
from
the
town
$31,942,
$182,797,
$242,502
and
$69,150
respectively.
Although
the
actual
amounts
misappropriated
differ
depending
on
the
source,
.!»
will
take
it
from
the
appellant’s
instructions
to
his
counsel,
who
advised
in
connection
with
the
criminal
charges,
that
he
misappropriated
approximately
$518,000;
that
$488,000
was
found
as
having
been
misappropriated
and
that
$26,000
of
the
$488,000
is
disputed.
In
August
1989,
the
appellant
met
with
the
mayor
of
the
town
and
confessed
to
his
misdeeds
and
together
with
the
mayor
went
to
the
York
Regional
Police
and
confessed
to
them.
The
appellant
made
his
records
available
to
the
authorities
and
to
forensic
accountants
retained
by
the
town.
Although
he
eventually
admitted
stealing
approximately
$590,000,
in
August
1989
he
confessed
to
stealing
only
approximately
$380,000.
However
the
appellant
maintains
that
he
confessed
to
larger
amounts
in
order
to
put
everything
behind
him,
including
criminal
charges
and
his
problems
with
Revenue
Canada.
The
news
media
carried
the
story
of
the
thefts
and
it
was
given
great
publicity
for
a
few
days.
In
November
1989,
as
a
result
of
these
newspaper
articles,
Revenue
Canada
became
interested
in
the
matter
and
began
its
investigation.
It
was
at
that
time
that
the
appellant
was
first
contacted
by
Revenue
Canada.
On
August
29,
1989,
the
appellant
retained
counsel
in
the
persons
of
Mr.
Austin
Cooper
and
Mr.
Peter
West
who
acted
on
his
behalf
in
relation
to
criminal
matters.
Messrs.
Cooper
and
West
negotiated
with
the
police
and/or
Crown
Attorney
with
the
result
that
Mr.
Taylor
eventually
agreed
to
make
restitution
and
pleaded
guilty
to
one
count
of
theft
over
$1,000.
Mr.
West
was
aware
that
Revenue
Canada
had
contacted
Mr.
Taylor
in
November
1989.
The
next
contact
between
Mr.
Taylor
and
Revenue
Canada
took
place
at
a
meeting
held
in
February
1990,
at
which
Mr.
Taylor,
Ms.
Pope
and
Mr.
Macri,
both
of
Revenue
Canada
were
present.
Ms.
Pope
was
the
investigator
in
charge
and
Mr.
Macri
was
her
supervisor.
It
was
at
this
meeting
that
Mr.
Taylor
claims
that
Revenue
Canada
stated
that
if
restitution
was
made,
taxes
would
"wash”
and
there
would
be
no
interest
or
penalties
assessed.
Mr.
Taylor
claims
that
the
same
offer
was
made
to
him
during
the
telephone
call
conversation
in
November
1989.
A
further
meeting
was
held
in
April
1990,
attended
by
Ms.
Pope,
Mr.
Macri
and
Mr.
West.
Mr.
Taylor
did
not
attend
but
was
nearby.
After
the
meeting,
Mr.
Taylor
met
with
Mr.
West,
and
was
told
by
Mr.
West
that
there
would
be
a
’’wash”.
In
his
evidence
concerning
the
April
1990
meeting,
Mr.
West
claimed
that
he
made
inquiries
of
Ms.
Pope
and
Mr.
Macri
as
to
the
tax
consequences
of
Mr.
Taylor
making
restitution.
Mr.
West
stated
that
he
was
informed
by
them
that
if
restitution
was
made,
there
would
be
a
"balancing
out";
that
there
would
be
a
"wash".
He
claims
that
he
was
told
that
he
had
nothing
to
worry
about,
because
if
there
was
a
"wash"
with
respect
to
taxes,
there
would
be
no
penalties
or
interest.
Mr.
West
stated
that
he
then
met
with
Mr.
Taylor
and
informed
him
that,
as
a
result
of
the
meeting,
he
had
nothing
to
worry
about;
again
stating
that
the
word
"wash"
had
been
used.
Once
armed
with
what
he
believed
to
be
an
agreement
with
Revenue
Canada
Mr.
West
was
prepared
to
meet
with
the
Crown
Attorney
to
negotiate
a
plea.
Part
of
the
plea
bargaining
with
the
Crown
Attorney
included
an
agreement
that
the
authorities
would
look
only
to
the
proceeds
of
the
sale
of
the
assets
purchased
with
stolen
money.
If
there
was
any
Shortfall,
it
would
be
dealt
with
in
a
restitution
order
and
not
by
realizing
on
Mr.
Taylor’s
other
assets.
This
would
mean
that
Mr.
Taylor’s
matrimonial
home
would
not
be
seized
and
sold.
Mr.
West
claims
he
was
led
to
believe,
from
his
dealings
with
Revenue
Canada,
that
if
restitution
was
not
made,
Mr.
Taylor
would
be
assessed
under
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
At
the
time
of
his
conviction,
Mr.
Taylor
had
repaid
approximately
$190,000
and
the
judge
entering
the
conviction
issued
a
restitution
order
in
the
amount
of
$298,000,
making
a
total
of
$488,000.
As
a
result
of
the
April
1990
meeting
with
the
representatives
of
Revenue
Canada,
Mr.
West
believed
that
he
had
struck
a
bargain
and
in-
itiated
no
further
contact
with
Revenue
Canada
and
in
turn,
Revenue
Canada
did
not
contact
Mr.
Taylor
or
Mr.
West
until
November
1990.
Mr.
Taylor
was
convicted
on
July
26,
1990
and
later
sentenced
to
18
months
in
prison,
of
which
he
served
approximately
six
months.
On
November
16,
1990,
while
he
was
serving
his
sentence,
Ms.
Pope
wrote
to
Mr.
Taylor
with
a
copy
of
the
letter
sent
to
Mr.
West.
The
upshot
of
this
letter
was
that
Revenue
Canada
intended
to
assess
Mr.
Taylor
for
his
1986
through
1989
taxation
years,
a
total
of
$527,341
of
unreported
income
resulting
from
the
misappropriations.
In
addition,
interest
income
to
that
date
of
$4,062
was
also
to
be
assessed.
Most
important
however,
was
Ms.
Pope’s
statement
that
Revenue
Canada
intended
to
levy
penalties
against
Mr.
Taylor,
under
subsection
163(2)
of
the
Act.
While
admitting
liability
for
most
of
the
tax
resulting
from
the
misappropriation
and
the
interest
earned
on
the
funds,
the
thrust
of
the
appellant’s
appeal
is
aimed
at
penalties
and
interest.
Counsel
for
the
appellant
puts
forth
the
following
issues
as
the
heart
of
the
appeal:
1.
What
was
the
amount
of
the
additional
income
and
the
tax
that
should
be
imposed
upon
that
additional
income?
2.
Is
the
Minister
estopped
from
assessing
penalties
and
interest
upon
the
appellant
on
the
basis
of
promissory
estoppel
or
waiver?
3.
Is
the
Minister
estopped
from
assessing
penalties
and
interest
on
the
basis
of
’’abuse
of
process",
(Common
Law
and
section
7
of
the
Charter
of
Rights
and
Freedoms,
(the
"Charter”))
or
in
the
alternative,
public
policy
and
Revenue
Canada’s
own
formal
policy?
Is
the
appellant
entitled
to
a
remedy
under
subsection
24(1)
of
the
Charter?
4.
Is
the
imposition
of
penalties
in
excess
of
$99,000
a
"true
penal
consequence”
pursuant
to
section
11
of
the
Charter?
(i)
If
yes,
has
the
appellant
been
subjected
to
double
jeopardy
pursuant
to
paragraph
11
(h)
of
the
Charter?
(ii)
If
no,
has
the
appellant
been
subjected
to
double
jeopardy
pursuant
to
section
7
of
the
Charter?
(iii)
Is
the
appellant
entitled
to
a
remedy
under
subsection
24(1)
of
the
Charter?
Amount
of
income
to
be
attributed
Mr.
Taylor’s
evidence
dealing
with
the
first
issue
as
to
unreported
income
falls
short
of
what
is
required
to
discharge
the
onus
placed
upon
him
to
demolish
the
Minister’s
assessment.
The
appellant
denies
taking
cash
of
approximately
$90,000
while
admitting
to
taking
between
$5,000
and
$10,000.
This
denial
together
with
the
evidence
submitted
dealing
with
the
employee
bonspiel
and
the
town
planning
department
with
no
further
evidence,
are
insufficient
and
accordingly
the
inclusion
of
these
amounts
in
dispute
must
stand.
No
evidence
was
led
to
counter
the
assessment
with
respect
to
the
$950
of
unreported
income
from
F.
Gallent
Enterprises.
Promissory
estoppel
The
authorities
have
long
set
forth
the
requirements
of
estoppel.
The
appellant
puts
forth
the
major
elements
of
promissory
estoppel
as
follows
(P.M.
Perell,
Remedies
and
the
Sale
of
Land
(1988),
at
page
71)
:
A.
a
pre-existing
legal
relationship
between
the
parties;
B.
a
representation
or
conduct
amounting
to
a
representation;
C.
the
representation
or
conduct
was
intended
to
induce
a
course
of
conduct
on
the
part
of
the
person
to
whom
the
representation
was
made
[the
intention
may
be
inferred
from
the
factual
circumstances];
D.
the
person
to
whom
the
representation
was
made
detrimentally
relied
on
the
representation
[either
by
some
act
or
omission].
The
matter
was
also
succinctly
put
by
Mr.
Justice
Martland
of
the
Supreme
Court
of
Canada
in
Canadian
Superior
Oil
Co.
et
al.
v.
Paddon-Hughes
Development
Co.
et
al.,
[1970]
S.C.R.
932
at
page
939:
The
essential
factors
giving
rise
to
an
estoppel
are
I
think:
(1)
A
representation
or
conduct
amounting
to
a
representation
intended
to
induce
a
course
of
conduct
on
the
part
of
the
person
to
whom
the
representation
is
made.
(2)
An
act
or
omission
resulting
from
the
representation,
whether
actual
or
by
conduct,
by
the
person
to
whom
the
representation
is
made.
(3)
Detriment
to
such
person
as
a
consequence
of
the
act
or
omission.
It
must
be
established
that
the
representatives
of
Revenue
Canada
did
make
the
representations
which
the
appellant
relied
upon,
and
that
having
relied
upon
these
representations,
he
did
so
to
his
detriment.
The
evidence
of
the
appellant
and
Mr.
West
was
that
Ms.
Pope
and/or
Mr.
Macri
of
Revenue
Canada
made
representations
to
the
effect
that
by
making
restitution,
the
matter
with
respect
to
taxes
would
be
a
’’wash”
and
no
interest
or
penalties
would
be
assessed.
These
statements
were
made
on
at
least
two,
if
not
on
three
occasions.
First,
the
meeting
of
February
1990,
at
which
Mr.
Taylor
attended;
second,
the
meeting
of
April
1990,
at
which
Mr.
West
attended;
and
third,
the
telephone
conversation
in
November
1989.
While
Messrs.
Taylor
and
West
insist
that
the
word
"wash"
was
used
at
the
meeting
each
of
them
attended,
and
Mr.
Taylor
further
states
that
the
word
’’wash”
was
used
during
the
November
1989
telephone
conversation
as
well.
Ms.
Pope
denies
that
this
word
or
any
similar
word
or
phrase
was
ever
used
or
mentioned.
On
balance,
I
must
accept
the
evidence
of
the
appellant
and
Mr.
West
that
the
representations
were
made
that
taxes,
penalties
and
interest
would
not
be
assessed
if
restitution
was
made.
Reference
by
both
of
these
witnesses
as
to
the
use
of
the
word
’’wash”
leads
me
to
that
conclusion.
The
word
is
too
specific,
too
colloquial
and
very
memorable.
The
evidence
was
not
that
"restitution
would
result
in
favourable
treatment
vis-à-vis
taxes"
but
that
there
would
be
a
"wash"
and
no
penalties
and
interest
would
be
assessed.
Having
determined
that
the
representation
was
made,
I
also
find
that
the
appellant
acted
upon
it
to
his
detriment.
The
bargain
struck
with
the
Crown
Attorney
did
not
require
the
appellant
to
mortgage
his
home
to
raise
money
to
pay
restitution.
The
Crown
Attorney
agreed
to
realize
on
assets
acquired
from
the
proceeds
of
the
misappropriation.
However,
to
satisfy
the
perceived
requirements
of
Revenue
Canada,
Mr.
Taylor
mortgaged
his
home
in
the
amount
of
$108,000.
This
was
over
and
above
liquidating
the
embezzlement-related
assets.
I
do
not
find
that
Mr.
Taylor
was
mistaken
in
his
perception.
I
find
that
he
believed
that
he
had
to
go
beyond
the
Crown
Attorney’s
requirements
in
order
to
assure
favourable
tax
treatment
by
Revenue
Canada.
The
guilty
plea
and
the
less
severe
requirements
of
the
Crown
as
to
restitution
may
have
been
inducements
in
the
plea
bargaining
process,
but
not
mortgaging
the
matrimonial
home.
Having
found
the
first
two
elements,
it
must
then
be
determined
whether
the
Crown
was
estopped
from
assessing
the
taxes,
penalties
and
interest.
That
the
Crown
can
be
estopped
is
not
in
doubt
(see
R
v.
Langille,
[1977]
C.T.C.
144,
77
D.T.C.
5086
(F.C.T.D.).
At
page
150
(D.T.C.
5089),
Grant
D.J.
stated:
Mrs.
McLaren
who
sold
the
annuity
contract
to
Langille
was
an
employee
in
the
Federal
Department
of
Labour.
She
was
acting
within
the
scope
of
her
employment.
In
describing
the
terms
of
the
contract
to
such
a
purchaser,
she
described
it
as
one
in
which
if
he
did
not
deduct
the
premium
paid
from
his
taxable
income
he
would
not
have
to
pay
tax
on
the
refund
of
capital
but
would
only
have
to
pay
tax
on
the
interest
element
of
each
year’s
annuity.
Such
statement
was
not
an
opinion
of
law
but
a
statement
of
fact
descriptive
of
the
type
of
contract
being
offered
to
him.
If
the
statement
had
been
an
opinion
or
interpretation
of
section
146
of
the
Act,
stoppai
[estoppel]
would
not
lie
against
the
Minister.
(See
Stickel
v.
M.N.R.,
[1972]
C.T.C.
210,
72
D.T.C.
6178
at
page
219
(D.T.C.
6185).)
The
purchaser
relied
upon
and
acted
upon
such
statements
throughout.
There
is
no
suggestion
that
such
saleslady
did
not
herself
believe
such
description
to
be
true.
If
I
am
right
in
my
interpretation
of
the
contract
it
was
true.
The
principle
of
estoppel
is
binding
on
the
Crown.
The
fact
that
the
Crown’s
servant
who
sold
the
contract
worked
in
a
different
department
of
the
government
does
not
affect
this
responsibility.
(See
Robertson
v.
Minister
of
Pensions,
1949
1
K.B.
227,
1948
2
All
E.R.
767.)
However,
estoppel
against
the
Crown
only
lies
with
respect
to
statements
of
fact.
The
issue
of
estoppel
against
the
Crown
dealing
with
question
of
law
was
dealt
with
thoroughly
in
Wo
on
v.
M.N.R.,
[1950]
C.T.C.
263,
50
D.T.C.
871
[Ex.
Ct.].
After
referring
to
cases
dealing
with
the
applicability
of
the
doctrine
of
estoppel
against
the
Crown,
Mr.
Justice
Cameron
said
at
pages
270-71
(D.T.C.
874):
It
is
not
necessary
in
this
case,
however,
to
consider
the
effect
of
the
cases
to
which
reference
has
just
been
made.
It
is
sufficient
to
state
that
the
assessment
here
under
appeal
was
made
pursuant
to
the
terms
of
a
statute
and
that,
therefore,
it
is
not
open
to
the
appellant
to
set
up
an
estoppel
to
prevent
its
operation.
In
Phipson
on
Evidence,
8th
Ed.,
667,
it
is
stated
that:
Estoppels
of
all
kinds,
however,
are
subject
to
one
general
rule:
they
cannot
override
the
law
of
the
land.
Thus,
where
a
particular
formality
is
required
by
statute,
no
estoppel
will
cure
the
defect.
The
most
recent
case
that
I
am
aware
of
is
Maritime
Electric
Co.
Ltd.
v.
General
Dairies
Ltd.
(1937),
A.C.
610,
in
which
it
was:
Held,
that
the
appellants
were
not
estopped
from
recovering
the
sum
claimed.
The
duty
imposed
by
the
Public
Utilities
Act
on
the
appellants
to
charge,
and
on
the
respondents
to
pay,
at
scheduled
rates,
for
all
the
electric
current
supplied
by
the
one
and
used
by
the
other
could
not
be
defeated
or
avoided
by
a
mere
mistake
in
the
computation
of
accounts.
The
relevant
sections
of
the
Act
were
enacted
for
the
benefit
of
a
section
on
the
public,
and
in
such
a
case
where
the
statute
imposed
a
duty
of
a
positive
kind
it
was
not
open
to
the
respondent
to
set
up
an
estoppel
to
prevent
it.
An
estoppel
is
only
a
rule
of
evidence,
and
could
not
avail
to
release
the
appellants
from
an
obligation
to
obey
the
statute,
nor
could
it
enable
the
respondents
to
escape
from
the
statutory
obligation
to
pay
at
the
scheduled
rates.
The
duty
of
each
party
was
to
obey
the
law.
The
judgment
in
that
case
was
delivered
by
Lord
Maugham.
At
page
620
he
said:
The
Court
should
first
of
all
determine
the
nature
of
the
obligation
imposed
by
the
statute,
and
then
consider
whether
the
admission
of
an
estoppel
would
nullify
the
statutory
provision.
And
at
page
621
:
If
we
now
turn
to
the
authorities
it
must
be
admitted
that
the
reported
cases
in
which
the
precise
point
now
under
consideration
has
been
raised
are
rare.
It
is,
however,
to
be
observed
that
there
is
not
a
single
case
in
which
an
estoppel
has
been
allowed
in
such
a
case
to
defeat
a
statutory
obligation
of
an
unconditional
character.
The
textbooks
have
regarded
the
case
as
one
closely
analogous
to
the
cases
of
high
authority
where
it
has
been
decided
that
a
corporation
could
not
be
estopped
from
contending
that
a
particular
act
was
ultra
vires.
He
referred
also
to
In
re
A
Bankruptcy
Notice
(1924),
2
Ch.
76,
in
which
Atkin
L.
J.
stated:
Whatever
the
principle
may
be
(referring
to
a
contention
as
regards
approbation
and
reprobation)
it
appears
to
me
that
it
does
not
apply
to
this
case,
for
it
seems
to
me
well
established
that
it
is
impossible
in
law
for
a
person
to
allege
any
kind
of
principle
which
precludes
him
from
alleging
the
invalidity
of
that
which
the
statute
has,
on
grounds
of
that
which
the
statute
has,
on
grounds
of
general
public
policy,
enacted
shall
be
invalid.
In
the
instant
case,
section
19.1
of
the
statute
expressly
provides
that
the
payment
received
by
a
taxpayer
under
the
circumstances
there
mentioned
shall
be
a
dividend
and
therefore
part
of
a
taxpayer’s
assessable
income.
It
was
therefore
the
duty
of
the
taxing
authorities
to
apply
the
provisions
of
the
section
to
the
case
of
any
taxpayer
falling
within
its
terms
and
it
was
the
duty
of
such
taxpayer
to
pay
such
tax
as
might
properly
be
payable
thereunder.
It
was
the
duty
of
both
to
obey
the
law.
I
think
it
is
quite
clear
that
the
"ruling”
said
to
have
been
made
in
this
case,
was
made
without
authority
and
was
not
in
any
way
binding
upon
the
Crown.
There
is
nothing
in
the
section
itself
which
confers
any
sort
of
discretionary
powers
on
the
Minister
or
his
officials.
Parliament
has
said
that
under
certain
circumstances
certain
things
are
deemed
to
be
dividends
and
manifestly
the
Commissioner
of
Taxation
had
no
power
to
declare
otherwise
or
to
settle
the
limit
of
taxation
thereunder,
other
than
according
to
the
statute
itself.
Associate
Chief
Judge
Christie
of
this
Court
concurred
with
this
interpretation
in
Lamash
Estate
v.
M.N.R.,
[1990]
2
C.T.C.
2534,
91
D.T.C.
9.
In
addition,
in
the
reasons
for
judgment
in
Stecko
v.
Canada,
[1995]
1
C.T.C.
269,
95
D.T.C.
5215
(F.C.T.D.),
Mr.
Justice
Cullen
of
the
Federal
Court-Trial
Division,
referred
to
the
issue
of
estoppel
at
C.T.C.
page
275
of
his
reasons,
where
he
wrote:
However,
that
being
said,
I
do
not
accept
that
the
plaintiff
could
reasonably
have
relied
on
the
statements
made
by
Mr.
Mardell.
Moreover,
even
if
the
plaintiff
did
rely
on
the
representations
made
by
Mr.
Mardell
to
his
detriment,
the
plaintiff
cannot
rely
on
the
doctrine
of
estoppel.
First,
as
Mr.
Balfe
admitted,
advice
or
assurances
made
by
a
Revenue
Canada
agent
are
not
binding.
They
may
be
a
reasonable
way
of
"testing
the
waters”
but
they
are
not
iron-clad
guarantees.
Second,
the
defence
of
estoppel
can
be
invoked
neither
against
the
Crown,
nor
against
the
acts
of
the
Crown’s
servants
or
agents.
This
principle
was
enunciated
in
Gibbon
v.
The
Queen,
[1977]
C.T.C.
334,
77
D.T.C.
5193
(F.C.T.D.).
Although
this
case
was
not
cited
by
counsel
for
the
defendant,
I
think
it
provides
a
clear
statement
of
the
law
in
this
area.
Walsh
J.,
having
reviewed
British
authorities
relating
to
estoppel
against
the
Crown,
stated
at
page
338
(D.T.C.
5196):
This
judgment
therefore
makes
a
clear
distinction
between
an
erroneous
decision
on
questions
of
fact
which
has
nevertheless
induced
the
beneficiary
of
the
decision
to
act
on
it,
and
a
failure
to
apply
the
law,
and
in
the
latter
case
no
decision
by
a
servant
or
officer
of
the
Crown
can
bind
it.
The
Canadian
courts
have
consistently
so
held.
I
relied
on
these
statements
in
the
case
of
Cohen
v.
Canada,
[1991]
1
C.T.C.
288,
91
D.T.C.
5239
(F.C.T.D.)
and
stated
at
page
297
(D.T.C.
5245):
With
respect
to
the
argument
that
the
Crown
is
estopped
from
arguing
that
the
maintenance
is
not
deductible
because
of
its
previous
representations
in
the
case
of
Naomi
Cohen,
the
case
of
Gibbon
v.
The
Queen,
[1977]
C.T.C.
334,
77
D.T.C.
5193,
makes
it
clear
that
the
Minister
or
other
subordinate
of
the
Crown
cannot
by
any
conduct
or
representation
bar
the
Crown
from
enforcing
a
statute
where
there
has
previously
been
a
failure
to
apply
the
law.
Estoppel
cannot
override
the
rule
of
the
land.
In
the
case
at
bar,
the
representations
made
by
Mr.
Mardell
concerned
the
application
of
the
Income
Tax
Act.
Relying
on
the
decisions
in
Gibbon
and
Cohen,
supra,
the
plaintiff's
arguments
on
estoppel
are
without
merit.
These
authorities
in
themselves
are
not
finally
determinative
of
the
issue
since
there
are
three
issues:
the
assessment
of
taxes,
the
assessment
of
interest
and
the
assessment
of
penalties.
Subsection
152(1)
of
the
Act
states:
152(1)
The
Minister
shall,
with
all
due
dispatch,
examine
a
taxpayer’s
return
of
income
for
a
taxation
year,
assess
the
tax
for
the
year,
the
interest
and
penalties,
if
any,
payable
and
determine....
These
words
are
mandatory
and
impose
an
obligation
on
the
Minister
to
assess
not
only
taxes
but
penalties
and
interest
as
well.
The
Act,
not
an
assessment,
creates
the
liability
for
tax.
The
Minister
cannot
‘contract
out"
of
the
Act.
It
is
a
question
of
law
whether
the
appellant
is
taxable.
The
doctrine
of
estoppel
is
therefore
not
applicable
to
the
issue
of
taxes.
The
remaining
issues
in
this
appeal
deal
with
estoppel
as
it
may
apply
to
the
assessment
of
penalties
and
interest.
The
appellant
admittedly
failed
to
report
substantial
amounts
of
income
in
the
years
under
appeal.
That
he
did
so
knowingly
or
under
circumstances
amounting
to
gross
negligence
is
not
in
question.
In
addition,
it
is
clear
that
he
made
a
false
statement
or
omission
in
a
return
filed
in
respect
of
a
taxation
year
as
required
by
the
Act.
On
its
face,
subsection
163(2)
creates
a
liability.
Similarly,
the
provisions
of
subsection
161(1)
impose
an
obligation
on
a
taxpayer
to
pay
interest
on
unpaid
taxes.
Again,
there
was
a
statutory
obligation
to
pay
interest
out
of
which
the
Minister
cannot
contract.
If
the
matter
were
left
there,
I
would
then
be
forced
to
say
that
the
doctrine
of
estoppel
would
not
be
applicable
to
penalties
and
interest
for
the
reasons
given
above
concerning
the
appellant’s
liability
for
tax.
However,
subsection
220(3.1)
of
the
Act
has
a
direct
bearing
on
penalties
and
interest:
220(3.1)
The
Minister
may
at
any
time
waive
or
cancel
all
or
any
portion
of
any
penalty
or
interest
otherwise
payable
under
this
Act
by
a
taxpayer
or
partnership
and,
notwithstanding
subsections
152(4)
to
(5),
such
assessment
of
the
interest
and
penalties
payable
by
the
taxpayer
or
partnership
shall
be
made
as
is
necessary
to
take
into
account
the
cancellation
of
the
penalty
or
interest.
[Emphasis
added.]
Without
the
provisions
of
subsection
220(3.1)
the
Minister
would
be
without
power
or
authority
to
waive
or
cancel
penalties
or
interest.
The
enactment
of
subsection
220(3.1)
gave
him
that
power
and
that
power
is
discretionary.
However,
this
discretion
cannot
be
exercised
until
there
has
been
an
assessment
of
penalties
and
interest.
As
stated
above,
subsection
152(1)
of
the
Act
provides
that
the
Minister
shall
assess
the
taxes
for
the
year
and
the
interest
and
penalties,
if
any,
payable.
It
is
only
the
penalties
and
interest
which
are
payable
that
may
be
waived
or
cancelled
by
the
Minister.
The
penalties
and
interest
which
are
payable
become
payable
only
after
they
are
assessed
and
therefore
there
must
be
an
assessment
before
the
provisions
of
subsection
220(3.1)
come
into
play.
See
Turkstra
v.
Canada,
[1993]
2
C.T.C.
2405
at
page
2407
(T.C.C.)
and
Wasson
v.
Canada,
[1993]
2
C.T.C.
2338
(T.C.C.).
The
events
giving
rise
to
the
estoppel
claim
arose
prior
to
any
assessment
of
penalties
and
interest
and
are
therefore
outside
the
ambit
of
subsection
220(3.1)
of
the
Act.
Accordingly
the
doctrine
of
promissory
estoppel
is
inapplicable
to
the
issues
of
penalties
and
interest
as
well.
Charter
of
Rights
and
Freedoms
The
appellant
put
forth
several
arguments
under
the
Charter
and
specifically
under
section
7
and
paragraph
11(h)
as
they
pertain
to
penalties
when
coupled
with
the
appellant’s
conviction
for
theft
over
$1,000.
Paragraph
11(h)
of
the
Charter
reads
in
part
as
follows:
11.
Any
person
charged
with
an
offence
has
the
right
(h)
...if
finally
found
guilty
and
punished
for
the
offence,
not
to
be
tried
or
punished
for
it
again....
Counsel
for
the
appellant
in
dealing
with
this
paragraph
referred
to
R
v.
Wigglesworth,
[1987]
2
S.C.R.
541,
45
D.L.R.
(4th)
235,
37
C.C.C.
(3d)
385.
Here
the
Court
(Wilson
J.)
dealt
with
the
meaning
of
offence
and
dealt
with
offenses
where
the
Charter
would
be
applicable
if
the
person
affected
is
subject
to
true
penal
consequences.
Madame
Justice
Wilson
at
page
252
(D.L.R.)
of
Wigglesworth
stated:
Some
of
these
matters
may
well
fall
within
section
11,
not
because
they
are
the
classic
kind
of
matter
intended
to
fall
within
the
section,
but
because
they
involve
the
imposition
of
true
penal
consequences.
In
my
opinion,
a
true
penal
consequence
which
would
attract
the
application
of
section
11
is
imprisonment
or
a
fine
which
by
its
magnitude
would
appear
to
be
imposed
for
the
purpose
of
redressing
the
wrong
done
to
society
at
large
rather
than
to
the
maintenance
of
internal
discipline
within
the
limited
sphere
of
activity.
Mr.
Sigurdson
for
the
appellant
argued
that
the
imposition
of
penalties
amounting
to
almost
$100,000
is
tantamount
to
"a
fine
which
by
its
magnitude
would
appear
to
be
imposed
for
the
purpose
of
redressing
the
wrong
done
to
society
at
large
rather
than
to
the
maintenance
of
internal
discipline
within
the
limited
sphere
of
activity".
In
support
of
this
he
referred
to
Re
Knutson
and
Saskatchewan
Registered
Nurses
Association
(1990),
75
D.L.R.
(4th)
723
(Sask.
C.
A.)
at
page
730
where
it
was
found
that
"fines
of
up
to
$10,000
for
each
offence,
leaving
aside
the
additional
liability
to
reprimand,
suspension
and
disbarment,
would,
in
all
likelihood,
have
been
found
to
be
a
true
penal
consequence
within
the
meaning
of
Wigglesworth...."
It
must
be
remembered
however
that
we
are
not
dealing
with
fines
in
a
criminal
or
quasi
criminal
proceeding
or
a
diciplinary
proceeding
but
one
of
penalties
in
respect
of
an
administrative
matter
based
upon
unreported
income.
There
are
no
offenses
since
the
penalties
are
applied
based
on
unreported
income
and
applied
when
a
taxpayer
makes
a
false
statement
on
his
return
either
knowingly
or
under
circumstances
amounting
to
gross
negligence.
I
believe
the
matter
of
the
Charter
and
in
particular
paragraph
11(h)
have
been
ably
reviewed
by
Judge
Sarchuk
of
this
Court
in
Sommers
v.
M.N.R.,
[1991]
1
C.T.C.
2451,
91
D.T.C.
656.
At
pages
2453-54
(D.T.C.
658)
he
states:
In
Re
v.
Georges
Contracting
Ltd.
and
Cloarec,
15
B.C.L.R.
(2d)
240,
the
respondent
was
charged
with
ten
counts
of
making
false
or
deceptive
statements
in
his
income
tax
returns
contrary
to
paragraph
239(1
)(a)
of
the
Income
Tax
Act.
The
Minister
of
National
Revenue
also
levied
a
penalty
against
the
respondent
pursuant
to
subsection
163(2)
of
the
Act.
The
Trial
judge
stayed
the
criminal
charges
on
the
ground
that
a
trial
would
constitute
a
violation
of
paragraph
11(h)
of
the
Charter.
The
Crown
appealed
to
the
Supreme
Court
of
British
Columbia.
The
headnote
to
the
decision
of
the
Supreme
Court
succinctly
sets
out
the
reasons
for
judgment:
The
25
per
cent
penalty,
from
the
perspective
of
the
taxpayer,
is
a
punishment.
However,
the
assessment
of
that
penalty
as
well
as
the
assessments
for
unpaid
tax
and
interest
under
the
Income
Tax
Act
are
purely
administrative
acts.
There
is
no
hearing,
no
tribunal-the
assessment
is
a
unilateral
act
which
results
in
the
taxpayer
being
obliged
to
pay,
in
effect,
a
civil
judgment.
On
the
other
hand,
paragraph
239(1
)(a)
of
the
Act
is
truly
an
exercise
of
the
power
of
the
federal
government
to
legislate
in
the
field
of
criminal
law.
A
proceeding
against
a
taxpayer
under
section
239
is
one
which
brings
the
citizen
out
into
a
public
tribunal
to
be
tried
and,
if
convicted,
punished
for
all
society
to
see.
While
there
are
similarities
between
the
proceeding
under
subsection
163(2)
and
under
section
239,
including
the
fact
that
the
misconduct
previously
penalized
under
the
former
section
is
substantially
the
same
as
that
which
forms
the
subject
matter
of
the
charges
under
the
latter,
since
under
the
former
the
taxpayer
has
not
been
tried
nor
finally
found
guilty
of
any
offenses,
his
right
not
to
be
tried
again
as
envisaged
by
paragraph
11(h)
is
not
violated
by
the
prosecution
proceeding.
[Emphasis
added.
}
This
judgment
was
affirmed
on
appeal
to
the
British
Columbia
Court
of
Appeal
([1988],
24
B.C.L.R.
(2d)
175,
41
C.C.C.
(3d)
95).
In
The
Queen
v.
Sharma,
[1987]
2
C.T.C.
253,
87
D.T.C.
5424,
the
taxpayer
was
charged
with
income
tax
evasion
and
the
Minister
also
imposed
a
penalty
pursuant
to
subsection
163(2)
of
the
Act.
A
judge
of
the
Ontario
Provincial
Court
stayed
the
criminal
proceedings,
utilizing
the
provisions
of
paragraph
11(h)
of
the
Charter.
The
matter
was
appealed
and
the
Supreme
Court
of
Ontario
found
that
the
imposition
of
civil
penalties
did
not
amount
to
either
a
trial
or
to
a
final
finding
of
guilt
as
contemplated
by
paragraph
11(h)
of
the
Charter.
Furthermore,
the
Court
held
that
paragraph
11(h)
applied
only
to
criminal
proceedings
and
it
could
not
be
said
that
the
subsection
163(2)
penalties
were
imposed
in
a
criminal
or
penal
proceeding.
In
Yes
Holdings
Ltd.
and
Yesmaniski
v.
R.
(1987),
57
Alta.
L.R.
(2d)
227,
40
C.C.C.
(3d)
30,
the
Alberta
Court
of
Appeal
in
similar
circumstances
rejected
an
argument
that
there
existed
a
violation
of
the
paragraph
11(h)
Charter
right
not
to
be
tried
again
for
an
offence
for
which
one
has
previously
been
acquitted
or
convicted.
That
court
held
that
the
relevant
section
of
the
Charter
only
provides
protection
against
trial,
conviction
and
punishment
in
the
context
of
section
11
which
requires
that
the
proceedings
impugned
must
be
"in
respect
of
an
offence".
"Offence"
means
an
offence
which
is
prosecuted
in
a
criminal
or
penal
proceeding.
Although
there
are
penal
elements
to
penalties
imposed
under
subsection
163(2)
of
the
Income
Tax
Act,
those
penalties
are
not
imposed
through
criminal
process.
Accordingly
the
proceedings
did
not
violate
the
rights
of
the
accused
under
paragraph
11(h).
Stevenson,
J.A.
further
stated:
To
accede
to
the
appellants’
argument
would
be
to
conclude
that
the
state
cannot
impose
a
penalty
other
than
through
the
criminal
process.
This
is
an
extravagant
conversion
of
section
11,
sweeping
into
it
and
criminalizing
all
state
imposed
penalties.
The
same
conclusion
was
reached
in
the
case
of
Lavers
et
al.
v.
M.N.R.,
[1990]
1
C.T.C.
265,
90
D.T.C.
6017.
This
is
a
decision
of
the
British
Columbia
Court
of
Appeal
in
which
the
provisions
of
paragraph
11(h)
of
the
Charter
were
raised
in
similar
circumstances
to
those
before
me.
In
his
consideration
of
the
nature
of
a
penalty
assessment
Wallace
J.
reviewed
a
number
of
decisions
and
concluded,
at
page
285
(D.T.C.
6019-20):
..that
the
assessments
by
the
Minister
and
the
imposition
of
penalties
pursuant
to
subsections
163(1)
and
(2)
of
the
Income
Tax
Act
(Canada)
and
subsections
23(1)
and
(3)
of
the
Income
Tax
Act
(B.C.)
are
properly
characterized
as
private
matters
of
a
regulatory
nature—primarily
intended
to
regulate
the
conduct
of
taxpayers
with
reference
to
their
complying
with
the
requirements
of
the
respective
Income
Tax
Acts.
The
penalties
which
may
be
imposed
upon
such
assessment
are
designed
to
achieve
that
objective.
[Emphasis
added.
]
In
contra-distinction
prosecutions
for
a
violation
of
section
239
are
properly
characterized
as
criminal
and
penal
matters
intended
to
"promote
public
order
and
welfare
within
a
public
sphere
of
activity"
by
deterring
the
public
from
the
commission
of
flagrant
breaches
of
the
Income
Tax
Act.
Accordingly,
I
find
that
the
assessments
by
the
Minister
and
the
imposition
of
penalties
for
a
violation
of
section
163
of
the
federal
Income
Tax
Act
and
section
23
of
the
British
Columbia
Income
Tax
Act
do
not
constitute
a
finding
of
guilty
or
a
punishment
for
an
offence
which
comes
within
paragraph
11
(h)
of
the
Charter.
In
dealing
with
the
issue
of
the
true
penal
consequence
Judge
Sarchuk
continued
on
page
2455
(D.T.C.
659)
with
the
Lavers,
supra
decision:
The
Lavers
decision
is
of
particular
significance
since
in
his
reasons
Wallace
J.
also
considered
the
question
of
whether
the
’’punishment
imposed"
pursuant
to
the
assessments
of
the
Minister
constitutes
"true
penal
consequences"
so
as
to
bring
the
penalties
consequent
upon
assessment
proceedings
within
the
prohibition
expressed
in
paragraph
11(h)
of
the
Charter.
Reference
was
made
to
the
decision
of
the
Supreme
Court
of
Canada
in
Wigglesworth
v.
R.
and
in
particular
to
the
tests
suggested
by
the
judgment
of
Madame
Justice
Wilson.
Utilizing
these
tests
Wallace
J.
concluded
at
pages
287-88
(D.T.C.
6020):
In
my
view,
the
distinction
in
the
severity
of
the
respective
penalties
indicates
that
Parliament
intended
that
the
imposition
of
the
statutory
penalty
following
assessments
by
the
Minister
would
reflect
a
sufficiently
significant
monetary
punishment
to
deter
taxpayers
from
failing
to
comply
with
the
Income
Tax
Acts
and
would
thereby
achieve
the
objective
of
this
administrative
procedure.
It
is
also
an
incentive
to
diligence
for
those
who
might
be
grossly
negligent
but
not
truly
criminal.
On
the
other
hand,
the
severity
of
the
public
sentence
which
could
be
imposed
following
a
conviction
under
section
239
clearly
points
to
Parliament’s
intention
to
provide
a
punishment
designed
to
redress
a
public
wrong.
I
do
not
consider
this
distinction
in
the
nature
and
purpose
of
the
two
punishments
to
be
diminished
by
the
fact
that
all
fines
end
up
in
the
consolidated
revenue
fund,
via
the
Receiver
General
of
Canada.
In
the
circumstances
this
is
the
only
appropriate
office
to
which
such
payments
could
be
made.
In
summary,
therefore,
the
penalty
assessment,
while
not
trivial,
is
not
so
severe
as
to
amount
to
a
"true
penal
consequence".
I
find
support
for
the
conclusion
I
have
reached
from
the
decision
of
George's
Contracting,
supra,
where
this
Court,
after
considering
the
Wigglesworth
decision,
found
the
Minister’s
assessment
and
consequent
penalty
to
be
a
civil
proceeding
to
which
paragraph
11(h)
of
the
Charter
did
not
apply.
Accordingly,
I
find
that
the
assessments
of
the
Minister
and
the
penalties
imposed
as
a
consequence
of
such
assessments
do
not
come
within
paragraph
11(h);
they
are
not
criminal
or
quasi-criminal
"by
nature";
nor
are
the
penalties
a
"true
penal
consequence".
Finally,
a
similar
conclusion
was
reached
by
the
Ontario
Court
of
Appeal
in
The
Queen
v.
Compton
Joseph
Ferreira,
Ont.
C.A.,
88-4676,
July
12,
1988
(unreported).
I
refer
to
this
case
because
in
the
lower
courts
Ferreira
argued
that
having
been
penalized
under
section
163
of
the
Income
Tax
Act
he
was
in
jeopardy
of
being
penalized
a
second
time
under
subsection
239(1)
of
the
Act
and
that
this
was
contrary
to
well
established
principles
of
fundamental
justice.
Thus
under
section
7
of
the
Charter
his
liberty
was
unfairly
at
risk
in
accordance
with
the
principles
of
fundamental
justice,
in
this
case,
double
punishment
or
double
jeopardy.
Both
the
trial
court
and
the
District
Court
of
Ontario
which
heard
the
matter
by
way
of
summary
conviction
appeal,
concluded
that
prosecution
was
barred
by
reason
of
section
7
of
the
Charter.
The
Ontario
Court
of
Appeal
unequivocally
found
that
section
7
had
no
application
in
the
circumstances,
albeit
without
further
reasons.
I
concur
with
these
reasons
and
find
that
the
penalties
do
not
amount
to
a
’’true
penal
consequence”.
Section
7
of
the
Charter
provides
as
follows:
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.
Section
7
affords
no
safeguard
of
economic
rights.
Counsel
for
the
respondent
referred
to
Canada
v.
Caseley,
[1991]
1
C.T.C.
211,
90
D.T.C.
6618
(P.E.I.S.C.).
The
double
jeopardy
issues
in
that
case
were
penalties
under
subsection
163(2)
and
section
239
of
the
Act,
the
latter
being
a
criminal
charge
dealing
with
tax
evasion.
At
pages
216-17
(D.T.C.
6621)
MacDonald,
C.J.T.D.
dealt
with
the
section
7
argument
as
follows:
Under
subsection
163(2)
there
is
no
threat
to
life,
liberty
or
security
of
the
person.
Only
a
monetary
penalty
may
be
assessed.
In
Whitbread
v.
Walley
(1988),
51
D.L.R.
(4th)
509,
[1988]
5
W.W.R.
313,
the
British
Columbia
Court
of
Appeal,
McLachlin
J.,
giving
the
opinion
of
the
Court,
stated
at
pages
519-20
(W.W.R.
323-24):
To
date
section
7
has
been
applied
mainly
in
cases
where
the
physical
liberty
of
the
complainant
has
been
infringed
or
is
in
danger
of
infringement.
Imprisonment
and
detention
by
the
state
offers
classic
examples
of
situations
where
section
7
clearly
applies....
At
the
other
end
of
the
scale,
it
appears
clearly
that
purely
economic
claims
are
not
within
the
purview
of
section
7
of
the
Charter.
No
one
suggests,
for
example,
that
imposition
of
a
monetary
disability
on
a
corporation
would
infringe
section
7
if
not
effected
in
accordance
with
the
principle
of
fundamental
justice.
McLachlin
J.
went
on
to
examine
the
instance
where
the
matter
complained
of
involves
an
economic
aspect
but
is
connected
to
or
affects
life,
liberty
or
security
of
the
person.
She
stated
that
there
were
two
related
grounds
put
forth
for
the
proposition
that
there
can
be
a
connection
between
the
limitation
of
liability
and
the
liberty
and
security
of
the
person
which
would
bring
section
7
into
play.
The
first
she
summarized
as
being
a
claim
for
an
economic
interest
which
is
founded
on
a
deprivation
of
life,
liberty
or
security
of
the
person.
In
the
present
case,
the
claim
of
an
economic
loss,
resulting
from
the
assessment
of
the
penalty
cannot
be
said
to
arise
from
the
deprivation
of
life,
liberty
or
security
of
the
person.
McLachlin
J.
summarized
the
second
argument
as
being
a
claim
for
an
economic
interest
which
may
enhance
a
person’s
ability
to
acquire
aids
and
amenities
to
improve
the
person’s
life
or
security
of
the
person.
Again
the
respondent
would
not
meet
such
a
test.
McLachlin
J.
points
out
the
difficulties
of
tying
economic
interests
to
section
7.
All
property
and
economic
interest
will
affect
the
life,
liberty
and
security
of
the
person.
She
concluded
that
it
was
not
the
intent
of
the
framers
of
the
Charter
to
give
section
7
that
meaning.
Based
on
another
rationalization
that
she
put
forth,
it
can
be
said
that
any
deprivation
of
life,
liberty
or
security
of
the
person,
which
the
respondent
may
have
suffered,
or
will,
is
not
caused
by
section
163
but
by
the
fact
that
he
made
a
false
statement
in
his
tax
return
or
wilfully
omitted
information
in
his
tax
return.
I
can
see
no
infringement
of
section
7.
I
also
concur
with
Chief
MacDonald’s
conclusions.
Accordingly,
I
find
that
the
appellant’s
rights
under
the
Charter
of
Rights
and
Freedoms
have
not
been
violated
and
that
he
is
entitled
to
no
remedy
under
the
Charter.
Similarly,
the
imposition
of
penalties
under
subsection
163(2)
does
not
constitute
an
"abuse
of
process"
in
any
guise
which
would
entitle
the
appellant
to
a
Charter
remedy.
For
the
above
reasons
the
appeals
are
dismissed
with
costs.
Appeals
dismissed.