Date:
20110411
Docket:
A-137-08
Citation: 2011 FCA 131
CORAM: NOËL
J.A.
PELLETIER J.A.
TRUDEL
J.A.
BETWEEN:
DAVID L.
BRACE
Appellant
and
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR
JUDGMENT BY THE COURT
[1]
We
are of the view that this appeal should be allowed and that the matter should
be remitted back to the Tax Court for a new trial.
[2]
While
the appellant complained that the trial was rushed and that he was not given
the opportunity to present his case, we are of the view that notwithstanding
the unfortunate references to the need to catch a plane, the trial judge was
clear that the appellant should take the time he needed to put in his case. In
response to a suggestion by the appellant that he would not be calling
witnesses because of shortage of time, the trial judge said, at page 655 of the
Appeal Book:
No, no, but you’re not going
to not be calling witnesses because of a time factor. If you have witnesses,
we’ll hear your witnesses. That’s no problem.
Later
at pages 666 to 668 of the Appeal Book, the trial judge said:
The reason I’m raising this is because if
at all possible, if we could finish the evidence tomorrow and if it means
having to sit until five tomorrow, we’ll do it. I mean, I’m trying to find out
if there are any flights out of St. John’s on Saturday and I’ll probably know in
a few minutes if there are, and if there are, well, I would much prefer that we
at least finish the evidence part and if we can’t do the argument, well, we can
probably ask the parties to provide those in writing. So this would eliminate
having to come back to finish the trial. On the other hand, if there’s no way
possible that we can finish this tomorrow, and I’m talking the evidence part or
the witnesses, then there’s no point staying on tomorrow afternoon. We’ll
adjourn at noon tomorrow and we’ll reschedule a new hearing, and I don’t know
when we’ll be able to resume the trial. But if it means that we can do all of
the evidence tomorrow and we need the half day tomorrow afternoon, I don’t
mind. We’ll fly out of here on Saturday. But at least we won’t be – we won’t
have to come back to finish the trial, and this I’d like to avoid because
everybody knows that trying to get back into a trial four or five months after
we’ve started it, it’s a nightmare for everybody. So I guess we’ll play it by
ear and we’ll see tomorrow what happens, but bear in mind that its possible
that we may be here until five, unless there’s a major problem that you are not
available or you would need to be somewhere, either you or Mr. Hickey,
somewhere tomorrow night or Saturday or something, or even you.
The trial judge then returned to the issue
later that day and said, at page 670 of the Appeal Book:
Okay. So let’s try that at least, because
obviously we need to be out of here by 2:00 if we want to leave tomorrow
afternoon, and if at all possible, if we can do it by two, fine. If not, we’ll
go on, as long as we can finish the evidence tomorrow, and unless there’s a
major obstacle, we’ll simply finish or fly out of here Saturday and we’ll
finish the trial, the evidence part at least tomorrow. Okay. So we’ll see –
we’ll start at nine, and we’ll take it from there. All right.
[3]
In
the circumstances, we are not persuaded that the trial judge failed to give the
appellant the time to put in his case.
[4]
That
said, there are three other matters which, in our view, lead us to the
conclusion that the appellant did not get a fair trial.
[5]
The
first was the trial judge’s acquiescence in the Crown’s failure to call Mr.
Parsons, the Revenue Canada auditor, after the Crown’s counsel led both the
appellant and the trial judge to believe that he would call him. When the Crown
failed to call Mr. Parsons, the appellant lost the opportunity to cross examine
him with respect to the calculation of the amounts of the assessments and the
circumstances of the seizure of documents which the appellant alleged were
seized illegally. The trial judge went on to find that the appellant had not
led any evidence as to the accuracy of the assessment and confirmed the amount
of the assessment. Similarly, the question of the legality of the seizure was
never addressed by Court. In all the circumstances, the trial judge ought to
have held the Crown to its implied undertaking to call Mr. Parsons, even if
only for the limited purpose than of producing him for cross-examination. His
failure to do so was unfair to the appellant.
[6]
The
trial judge formed a very unfavourable view of Mr. Harvey, a witness called by
the appellant. The witness was examined and cross-examined by video-link as he
was present in Vancouver while the trial was unfolding in St. John’s. The parties
were to have arranged to have the documents on which they wished to examine Mr.
Harvey sent to Vancouver so that they could be put before him during his
examination and cross-examination. Inexplicably, the Crown’s documents were not
available when Mr. Harvey testified. The trial judge allowed the Crown to cross
examine Mr. Harvey with respect to those documents even though the witness did
not have them before him. This was unfair to the witness. It was not
surprising that the witness could not remember matters contained in documents
upon which he was being cross-examined and which he did not have before him. It
was unfair for the trial judge to allow the Crown to cross-examine Mr. Harvey
on documents which the Crown, for whatever reason, was unable to put before him
for purposes of cross-examining him and then to draw adverse inferences from
the witnesses failure to remember various matters.
[7]
Finally,
the appellant raised a number of preliminary objections at the start of the
trial, one of which involved a document which he said had been illegally seized
from his lawyer’s files. The trial judge correctly observed that the
appropriate time for making the objection was the point at which the Crown
sought to introduce the document in evidence. However, when the Crown tendered
the document, the trial judge allowed the Crown to cross-examine the appellant
on the document without first disposing of the issue of admissibility. At page
731 of the Appeal Book, the trial judge said, in relation to this document:
So what we’re going to do is, as I’ve
said, I was going to take the admissibility of that document, I would reserve
my decision on it, but I’m not going to prevent or stop the evidence or the
trial until I rule on that.
[…]
So I’m going to allow Mr. Bodurtha to
cross examine you on the document. It will be admitted in evidence, under
reserve, pending my decision on its admissibility, and of course, everything
you said – that will be said about the document as well goes, okay?
[8]
It
is not unusual for judges to defer questions of admissibility so as to preserve
the flow of the trial. But where the objection to the admissibility of a
document is that it was illegally seized from the custody of a solicitor, the
Court has an obligation to ensure that illegally obtained evidence, in breach
of solicitor client privilege, is not tendered to the detriment of the
taxpayer. In this case, the trial judge relied on this document to draw one (of
many) inferences which were adverse to the appellant’s credibility. In the end,
the trial judge never did rule on the appellant’s objection as to
admissibility.
[9]
In
so saying we do not purport to rule on the legality of the seizure; we say only
that it was an important issue which ought to have been dealt with.
[10]
All
of these circumstances, taken together, lead us to the conclusion that the
appellant did not get a fair trial and that, as a result, a new trial must be
ordered. We would therefore allow the appeal with costs, set aside the judgment
of the Tax Court, and remit the matter to the Tax Court for a new trial before
a different judge.
“Marc
Noël”
“J.D. Denis Pelletier”
“Johanne Trudel”
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