Gerard O’sullivan v. Minister of National Revenue, [1990] 2 CTC 2500, 90 DTC 1912

Mogan, T.CJ.: — The appellant filed his 1988 income tax return and computed his income, his taxable income, his net federal tax and his Ontario tax. He then remitted what was payable except for the amount of $50 which he withheld for the following reason stated in a letter attached to his 1988 return: “This money will be held in trust in solemn protest against the use of taxpayer's

(sic) money to pay for the murder of the unborn". The appellant had taken the same position in the preceding six years but only the 1988 taxation year is under appeal. In his notice of appeal, the appellant stated his first reason for appealing: "The use of taxpayers [sic] money to pay for the annual killing of an estimated 100,000 unborn children is a flagrant violation of law, and cannot be justified by any method of tax assessment."

In the reply to notice of appeal, the respondent raised a preliminary objection on the basis that this Court has no jurisdiction because the appellant is not seeking a change to his taxable income as assessed but is challenging the allocation of tax revenue after it is collected. To get around this preliminary objection, the appellant then stated orally that he wanted his federal income tax liability reduced by $1 as a sign that his conscience has been violated. The appellant did not identify any particular source of his 1988 income which should be reduced in order to achieve a $1 reduction of his federal tax.

The appellant's real complaint is that he opposes the use of taxpayers' money to fund lawful abortions under the various provincial medical and health plans. He relied on section 2 of the Canadian Charter of Rights and Freedoms, The Constitution Act, 1982 (the "Charter") (freedom of conscience and religion) and section 24 of the Charter with respect to jurisdiction and remedy. In order to confer jurisdiction on this Court, the appellant placed great reliance on the decision in Prior v. M.N.R., [1987] 1 C.T.C. 2076; 87 D.T.C. 26, apparently without realizing that that decision was, in effect, overruled by the Federal Court of Appeal in Prior v. Canada, [1989] 2 C.T.C. 280; 89 D.T.C. 5503.

The appeal herein is without merit. The appellant does not challenge the respondent's computation of his income or his taxable income. Section 169 of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") provides an appeal to this Court "to have the assessment vacated or varied". If the appellant does not challenge the amount of tax which the Minister has assessed by challenging the Minister's computation of his income, taxable income or tax credits, then he cannot institute an effective appeal under section 169 because he is not attempting to have the assessment "vacated or varied".

The appellant's oral statement at the commencement of the hearing that he wanted his federal income tax liability reduced by $1 as a sign that his conscience has been violated is not a challenge to his assessment of income tax for 1988. The appellant's attempt to use paragraph 2(a) of the Charter is demolished by the following statement of the Federal Court of Appeal in Prior v. Canada, [1989] 2 C.T.C. 280; 89 D.T.C., 5503 at 283 (D.T.C. 5505):

. . .neither the payment of income tax nor the defence expenditures of the Government of Canada in any way affect, curtail, diminish or infringe the appellant's conscience or religion within the meaning of paragraph 2(a) of the Charter. The income tax paid by her under the secular scheme of the Income Tax Act charging her business or employment income to tax, in no way identifies her with any of the functions of the Government of Canada be they political, social, economic, defence or for the peace order and good government of Canada.

The appellant's freedom of conscience and religion has not been violated or even infringed by his requirement to pay the full amount of tax lawfully assessed under the Income Tax Act. He is not required to participate in the performance of any abortions. He is not required to affirm his support for the concept of lawful abortion. And he is not prevented from expressing in public his opposition to lawful abortions. The appeal is dismissed.

Appeal dismissed.