|
Citation: 2004TCC829
|
|
Date: 20050106
|
|
Docket: 2004-2800(IT)I
|
|
BETWEEN:
|
|
VITO NOREJKO,
|
|
Appellant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
REASONS FOR ORDER
O'Connor,
J.
Issues
[1] The Appellant appeals his income tax assessments and or
reassessments for the years 1988 through 1999. He also claims that he is exempt
from the payment of income tax in those years as well as in the years 2000
through 2003 for which latter years there are no assessments or reassessments.
[2] The
position of the Appellant is set forth in the following extracts from his
Notice of Appeal dated April 13, 2004:
... I hereby file an objection as
allowed under the provisions of the Income Tax Act. Through this submission, I
request an exemption from the payment of personal income tax.
The basis for my
request is centred on the fundamental freedom of conscience and religion
granted by the Canadian Charter of Rights and Freedoms. I make this objection
at this time because the current legislative circumstances can no longer be
tolerated by me without remedial action. For the most part, I refer to the absence
of a law to protect the most innocent human beings in Canada from being victimized as a result
of a legislative and/or constitutional flaw in our nation. ...
Up to the time of the
1988 Supreme Court ruling, which deemed the 1969 abortion law as being
unconstitutional, the enwombed children were at least afforded some measure of
protection and respect for their immeasurable value and worthiness as human
beings. ... the Supreme Court of Canada ruling invited Parliament to introduce
a new law on abortion which to this day has not been fulfilled by our
legislators. ...
Since 1988, the abrogation
of responsibility by our federal legislators (in the meantime, resulting in
instances of an assortment of law-forming actions by the judiciary) has led to
abortion becoming a health care procedure funded by the Ontario government (and by
other provinces as well). Because of my strong beliefs against abortion, I
object to personally financing this life-taking medical procedure through the
collection of income tax from me by the provincial and federal governments. The
lack of success in resolving the abortion issue in Parliament alludes to its
complex, divisive nature; and in turn, reveals how out of place this type of
coercion is under these circumstances in a democracy. Most objectionable are
the abortions procured as contraceptive measures. ...
I thereby call for the
refund of all my (net) income tax payments to the government, retroactive to
1988. Furthermore, I seek the application of this objection to all my future
income until such time that the situation described is remedied by legislation.
...
In closing, as factual
circumstances pertinent to this case, I inform you of my decision against filing
my income tax returns since the taxation year of 2000. ... This decision has
the same basis as for the situation outlined herein. ...
[3] The
Appellant also refers to income tax advantages to be accorded to homosexual
relationships and raises that issue as another reason for his appeals. This latter
issue was not pressed by the Appellant, whose main concern relates to the
abortion issue. In any event, the decision in these appeals is equally
applicable to both issues.
[4] The
Appellant also filed with the Court a written submission dated December 13,
2004 and the following extracts from that submission will attempt to summarize
the highlights thereof:
...
On the matter of killing a human
being no doubt exists as to the abhorrence of such an act of God and man alike.
I put to the court that this obviously extends to the human being within a
mother's womb. Our common sense and reasoning, applied honestly, leads us to
this conclusion and no other. How can the enwombed child be considered as
something else before being born and all of a sudden, as if by magic, spring
into a human life form – attaining the full privileges and rights of a human
being granted by the laws of our land exclusively through birth?
...
It is my understanding
that scientific evidence examining the humanity of enwombed children was not
considered to any significant degree at the time of the debates and formulation
of the 1969 abortion law. Since that time, technological developments have
further established the humanity of enwombed children in a more visible way.
... Over the span of the past thirty years or so, such advancements have
without doubt swayed many people into recognizing the humanity of enwombed
children.
...
Upon reaching the conclusion being
advanced, there possibly remains one aspect that might trouble one's
conscience. It is related to the concern regarding the will of the mother over
the life of the child that she carries inside her womb.
...
[The Appellant
offers his own quotation]
... "doesn't the actuality of
our present world – as evidenced by abortion statistics - cry out for
protecting innocent human life even at the cost of compromising a mother's will
over her enwombed child?".
[The Appellant offers certain statistics establishing that at least in 1997
abortion was the leading cause of death in Canada. The Appellant also asserts that abortion is contrary to the will of God;
and continues]
...
For the purposes of court
procedures, I hereby request leave to appeal on the basis that my freedom of
conscience is being infringed upon through the payment of income tax which is
subsequently used by the government to fund abortions and associated services.
As I have explained, I believe abortion is the cruel annihilation of a
precious, innocent human being and I do not wish to be party to such an act, in
any way – even indirectly, as through the payment of income tax.
[5] The
Respondent's Motion is for an Order quashing the Appellant's appeals on the following
grounds, inter alia:
a) The Tax Court
of Canada does not have jurisdiction to grant the remedy of an exemption from
the payment of income tax; this ground is raised pursuant to Rule 58(3)(a)
of the Tax Court of Canada Rules (General Procedure) ("Rules")
which provides that the respondent may apply to have an appeal dismissed on the
ground that the Court has no jurisdiction over the subject matter of an appeal.
The Motion may also be considered to be pursuant to Rule 58(1)(b)
of the Rules which provides that a party may apply to strike a pleading
because it discloses no reasonable grounds for appeal.
b) There are no
valid Notices of Objection filed with respect to the 1988 through 1999 taxation
years as required by subsection 169(1) of the Income Tax Act, R.S.C.
1985, c.1; and
These grounds will be discussed separately below in paragraphs (A) and (B).
[6] Another
ground that exists relates to the legal requirement that the constitutional
validity of an Act cannot be judged upon, absent a notice to the Attorney
General of Canada and the attorneys
general of the provinces pursuant to section 19.2 of the Tax Court of Canada
Act ("Act"), which provides as follows:
19.2(1) If the
constitutional validity, applicability or operability of an Act of Parliament
or its regulations is in question before the Court, the Act or regulations
shall not be judged to be invalid, inapplicable or inoperable unless notice has
been served on the Attorney General of Canada and the attorney general of each
province in accordance with subsection (2).
(2) The notice must be
served at least 10 days before the day on which the constitutional question is
to be argued, unless the Court orders otherwise.
(3) The Attorney
General of Canada and the attorney general of each
province are entitled to notice of any appeal to the Federal Court of Appeal
made in respect of the constitutional question.
(4) The Attorney
General of Canada and the attorney general of each
province are entitled to adduce evidence and make submissions to the Curt in
respect of the constitutional question.
...
A further ground raised by the Respondent was that there can be no appeal
from a "nil assessment" or no appeal when there is no assessment. This
ground and the ground based on section 19.2 of the Act are commented
upon in the conclusion of this judgment.
(A) With respect to the jurisdiction of the Tax Court of Canada, the
Respondent refers to section 12 of the Act, which enumerates the
statutes over which the Tax Court has jurisdiction (not in itself conclusive) and
to subsection 171(1) of the Income Tax Act which provides:
171.(1) The Tax Court of Canada may dispose of an
appeal by
(a) dismissing it; or
(b) allowing it and
(i) vacating
the assessment,
(ii) varying the
assessment, or
(iii) referring
the assessment back to the Minister for reconsideration and reassessment.
The conclusion from these provisions is that the Tax Court does not have
the jurisdiction to grant the relief sought by the Appellant of granting an
exemption from the payment of income tax.
(B) With respect to the requirement of a valid Notice of Objection,
the Respondent refers to subsection 169(1) of the Income Tax Act which
reads as follows:
169.(1) Where a taxpayer has served
notice of objection to an assessment under section 165, the taxpayer may appeal
to the Tax Court of Canada to have the assessment vacated or varied after
either
(a) the Minister
has confirmed the assessment or reassessed, or
(b) 90 days have
elapsed after service of the notice of objection and the Minister has not
notified the taxpayer that the Minister has vacated or confirmed the assessment
or reassessed,
but no appeal ....
[7] The
Respondent also refers to Rule 58(3)(b) of the Rules which reads:
58(3) The Respondent may apply to
the Court to have an appeal dismissed on the ground that,
...
(b) a condition precedent to
instituting a valid appeal has not been met, ...
The conclusion from these provisions is
that unless a valid notice of objection has been filed there can be no appeal.
[8] On the issue of jurisdiction, (ground A) counsel
for the Respondent referred to several decisions. In Prior v. Her Majesty
The Queen, [1989] 2 C.T.C. 280 the head note reads as follows:
The taxpayer, who was opposed to expenditures for
military or war purposes, withheld from Revenue Canada and paid, instead, to
the Peace Tax Fund of Victoria, British Columbia, 10.5 per cent of the tax
owing by her in respect of her 1982 taxation year, on the grounds that 10.5 per
cent of the 1982 Canadian Budget was used for military purposes. The Tax Court
of Canada dismissed her appeal from the Minister's assessment against her for
the tax so withheld, holding that if her Charter rights had been infringed, as
she had contended, such infringement was demonstrably justifiable in a free and
democratic society. The taxpayer then applied to the Federal Court -- Trial
Division for a declaratory order: (1) that to require her to pay the full
amount of her income tax to Revenue Canada infringed her
Charter rights, and (2) that she was entitled to pay to the Peace Fund 10.5 per
cent of her total income tax owing as she had done. On the Crown's application,
the Federal Court -- Trial Division struck out the taxpayer's Statement of
Claim as disclosing no cause of action (88 DRS P80-582) and the taxpayer
appealed to the Federal Court of Appeal.
HELD: The taxpayer's appeal was dismissed. The trial
judge's findings were affirmed for the following reasons: (1) The taxes levied
on the taxpayer were not so closely connected to the government's military
expenditures to make those taxes an insult to her beliefs. (2) The taxpayer's
payment of income tax, under the secular scheme of the Income Tax Act, did not
identify her with the military or other functions of the government. (3)
Subsection 15(1) of the Charter (providing for equality before the law without
discrimination) was not relevant to the matters in issue, although s. 2(a) of
the Charter (providing for freedom of conscience and religion) could have been,
had the taxpayer been able to show that she had been compelled to act contrary
to her conscience. (4) The Charter does not override the other provisions of
the Constitution Act, 1867, including the power conferred there under to levy
taxes. The taxpayer had improperly sought to impugn the power to levy taxes if
such taxes were used for allegedly improper purposes. (5) To give effect to the
taxpayer's application would require the Court either to amend the rate
provisions of the Income Tax Act, or to create a credit scheme exempting her
from a portion of her tax otherwise payable -- neither of which the Federal
Court has jurisdiction to do.
[9] In
Woodside v. Her Majesty the Queen, [1993] 2 C.T.C. 2348, Sarchuk, J. of
the Tax Court of Canada, followed the decision of the Federal Court of Appeal
in the Prior case and on the question of jurisdiction, stated as
follows:
...
8 If the Federal Court
does not have the jurisdiction to grant a declaratory order in a similar matter
I guarantee you this Court does not have the power to grant declaratory relief
either.
...
9 Lastly I rely on the
reasons expressed by my colleague Judge Mogan in the Hertzog case
referred to by counsel for the Minister. I think the paragraph that was cited
by counsel is a carefully crafted explanation of the limits of this Court's
jurisdiction. It is not that we cannot hear an appeal that is brought before us
where issues like this are raised. It is simply that we do not have the
jurisdiction to grant the relief sought.
[10] In O'Sullivan v. Her Majesty the Queen, [1991] 2 C.T.C. 177, a
decision of the Federal Court – Trial Division, the head note reads as follows:
The plaintiff sought a reduction in
his income tax for 1980 and subsequent years and a declaration that the law
that permits the use of taxpayer's money to fund legal abortions was of no
force and effect as contrary to the Charter. He argued that the unborn child's
right to life was protected by the Charter and the Universal Declaration of
Human Rights and that there was a coercive link between the payment of income
tax and the deprivation of the life of the child. He did not dispute the
respondent's computation of his tax liability but claimed that his freedom of
conscience and religion were violated by having to pay taxes that were used to
fund abortions. He therefore sought a consequential reduction in his income tax
based on the preamble to the Charter, which states that "Canada is founded upon
principles which recognize the supremacy of God".
The respondent had successfully
applied to the senior prothonotary to strike the statement of claim pursuant to
Rule 419 as disclosing no cause of action. The respondent's position was that
there was no nexus between the payment of income taxes and the various
expenditures of the federal government and the "freedom of religion"
and "security of the person" provisions of the Charter. It was
therefore unreasonable to claim that taxes should be reduced because of funding
of lawful abortions by the government.
HELD:
The Court first ruled that it had
the jurisdiction to hear the action. After extensive consideration of the
relevant Charter provisions, the Court ruled that the taxpayer's freedom of
conscience was not infringed because the payment of income tax did not impose
any obligation to participate personally in the counselling or performance of
an abortion. It further noted that the taxpayer's religious tenets were
contrary to the State-tolerated practice of permitting abortions. In the
result, the Court ruled that the taxpayer's statement of claim did not disclose
any reasonable cause of action and supported the decision of the senior
prothonotary. Appeal dismissed.
Analysis and Conclusion
[11] Having considered the submissions of the Appellant and of counsel for
the Respondent and having reviewed the legal provisions and authorities cited
above, I conclude that this Court has no jurisdiction to
grant an exemption from income tax, federal or provincial. Moreover even if the Court had jurisdiction to consider the
issues raised by the Appellant it does not have the authority to grant the
relief sought of ordering refunds of taxes paid and an exemption from income
taxes. These conclusions are not altered by the fact that the Appellant, whether
because of religious beliefs or otherwise, does not agree with or
conscientiously objects to the laws of the government of Canada and/or to the policies upon which such laws are
based.
[12] I also conclude that even if the foregoing is incorrect, these appeals
cannot be heard because the required condition precedent of giving valid
Notices of Objection has not been met.
[13] I further conclude that, in any event, the appeals cannot succeed to
the extent that they raise the constitutional validity of the Income Tax Act
or any other law because of section 19.2 of the Act which requires
prior notices to the Attorney General of Canada and the attorneys general of the
Provinces which requirement has not been complied with.
[14] Considering the foregoing conclusions, it is not necessary to comment
on the issue of there being no assessments or reassessments for certain years
nor on the alleged issue that there can be no appeal from a nil assessment.
[15] Consequently, the Motion of the Respondent is granted and the appeals
are quashed.
Signed at Ottawa, Canada, this 6th day of January,
2005.
O'Connor,
J.
Email this Content