Paiement v. The Queen, docket 2001-572-IT-I (Informal Procedure)

[OFFICIAL ENGLISH TRANSLATION]

2001-572(IT)I

BETWEEN:

DENIS PAIEMENT,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeals heard on January 17, 2002, at Montréal, Quebec, by

the Honourable Judge P.R. Dussault

Appearances

For the Appellant:                                         The Appellant himself

Counsel for the Respondent:                         Mounes Ayadi

JUDGMENT

          The appeals from the determinations made under the Income Tax Act concerning the goods and services tax ("GST") credit for the 1994, 1995, 1998 and 1999 taxation years are dismissed in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 29th day of January 2002.

"P.R. Dussault"

J.T.C.C.

Translation certified true

on this 1^st day of May 2003.

Sophie Debbané, Revisor

[OFFICIAL ENGLISH TRANSLATION]

Date: 20020129

Docket: 2001-572(IT)I

BETWEEN:

DENIS PAIEMENT,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

P.R. Dussault, J.T.C.C.

[1]      These are appeals from determinations by the Minister of National Revenue ("the Minister") concerning the goods and services tax ("GST") credit provided for in section 122.5 of the Income Tax Act ("the Act") for the 1994, 1995, 1998 and 1999 taxation years. On the basis of paragraph 122.5(2)(c), the Minister determined that the appellant was not an eligible individual or a qualified relation or qualified dependant of an individual for the purposes of the credit. Paragraph 122.5(2)(c) reads as follows:

Persons not eligible individuals, qualified relations or qualified dependants - Notwithstanding subsection (1), a person shall be deemed not to be an eligible individual for a taxation year or a qualified relation or qualified dependant of an individual for a taxation year where the person

(a)         . . .

(b)         . . .

(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.

[2]      The facts assumed by the Minister for the purposes of the determinations are set out in subparagraphs 7(a) to (c) of the Reply to the Notice of Appeal, which read as follows:

[TRANSLATION]

7.          In making and confirming the assessment at issue, the Minister assumed the following facts, inter alia:

(a)         the appellant did not report any income for the years at issue;

(b)         the appellant was incarcerated starting on September 26, 1989, for a period of seven years and again in 1996 for a period of eight years;

(c)         the appellant was confined for more than six months during each of the years at issue.

[3]      These facts are not in dispute. In his Notice of Appeal, the appellant relied in particular on section 15 of the Canadian Charter of Rights and Freedoms ("the Charter") and claimed to have been discriminated against because, while he was incarcerated, he paid both the GST and the Quebec sales tax ("QST") on certain goods he purchased, including cigarettes. During his testimony, he also said that prisoners work and therefore have as much of a right to receive the GST and QST credits as persons who are not incarcerated but who do not work and who receive social assistance in addition to tax credits. The appellant further argued that Quebec granted the QST credit to inmates from 1991 to 1996 and that the federal government should do the same for the GST credit.

[4]      First, it is important to point out that the Tax Court of Canada has no jurisdiction as regards the credits that taxpayers are or are not entitled to claim from the Government of Quebec under that province's Taxation Act.

[5]      As for the question of a taxpayer's eligibility for the credit provided for in section 125.5 of the Act, this Court has already ruled on the constitutionality of paragraph 122.5(2)(c) in relation to section 15 of the Charter several times, in McKinnon v. Canada (Minister of National Revenue - M.N.R.), [1991] T.C.J. No. 509; Armstrong v. Canada, [1995] T.C.J. No. 1561; Rochon v. Canada, [1996] T.C.J. No. 952; Mulligan v. Canada, [1996] T.C.J. No. 1688, and Wells v. R., [1998] 1 C.T.C. 2118.

[6]      In the decisions in Armstrong and Wells, reference is made to the Federal Court of Appeal's decision in Lister v. R., 94 DTC 6531, [1994] 2 C.T.C. 365, in which it was established that the fact that persons under 19 years of age at the end of a year are not eligible for the GST credit does not constitute prohibited discrimination under section 15 of the Charter, even though age is one of the grounds enumerated in that section. Since imprisonment for a crime is not a ground referred to in section 15 of the Charter, Judge Bowie found in Wells that it would be contrary to all reason to conclude that denial of the GST credit on the basis of a ground not enumerated in section 15 of the Charter is unconstitutional, while denial of the same credit on the basis of an enumerated ground is not. Being imprisoned for a period of, or periods the total of which in a year was more than, six months and being confined to a prison or similar institution at the end of the year are not grounds analogous to those enumerated in section 15 of the Charter. I therefore see no reason to reach a conclusion other than the one reached by my colleagues in the above-mentioned cases.

[7]      The other provisions of the Charter referred to by the appellant when he presented his arguments, including sections 1, 7, 12 and 32, are clearly inapplicable in this case.

[8]      In light of the foregoing, the appeals are dismissed.

Signed at Ottawa, Canada, this 29th day of January 2002.

"P.R. Dussault"

J.T.C.C.

Translation certified true

on this 1^st day of May 2003.

Sophie Debbané, Revisor