Jarman v. Canada, [1998] 3 CTC 398

McEwan J.:

The petitioner seeks:

(a) an order or orders pursuant to the provisions of Section 24(1) of the Charter of Rights and freedoms, the inherent jurisdiction of this Court, the Judicial Review Procedure Act, and Section 244(3) of the Income Tax Act, staying or otherwise setting aside or terminating an information filed in the Victoria Registry of the Provincial Court of British Columbia alleging that on or about the 1st day of December, 1995, at or near the City of Victoria, Province of British Columbia, the Petitioner unlawfully failed to comply with the notice served on him on June 28, 1995, in that he did not provide to the Minister of National Revenue, Taxation Branch, at Victoria, British Columbia, the following:

(i) an Income Tax Return on Form T-l for the taxation year 1994;

(ii) an Income Tax Return of Bee True Ventures Ltd., on Form T-2, including a balance sheet and an income statement for the fiscal period ended during 1993;

(iii) an Income Tax Return of Bee True Ventures Ltd., on Form T-2, including a balance sheet and an income statement for the fiscal period ended during 1994;

(b) in the alternative, an order stipulating that, as these proceedings arose out of Port Alberni, British Columbia, that they be held and conducted at Port Alberni, British Columbia, and not at Victoria, British Columbia. [FROM THE PETITION]

The petitioner is a helicopter pilot who lives in Port Alberni. He is also the principal of a small business enterprise called Bee True ventures Ltd. which markets a form of portable tree house.

He has, according to Revenue Canada, run afoul of the tax system. He is alleged to have failed to file a personal income tax return for 1994 and tax returns for the business for 1993 and 1994 as required by the Income Tax Act.

The petitioner was given notice on or about June 28, 1995 that failure to file these returns at the Victoria District Office of Revenue Canada by November 30, 1995 would lead to prosecution under s. 238(1) of the Act. It provides as follows:

(1) Every person who has failed to file or make a return as and when required by or under this Act or a regulation or who has failed to comply with subsection 116(3), 127(3.1) or (3.2), 147.1(7) or 153(1), any of sections 230 to 232 or a regulation made under subsection 147.1(18) or with an order made under subsection (2) is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to

(a) a fine of not less than $1,000 and not exceeding $25,000; or

(b) such a fine and imprisonment for a term not exceeding 12 months.

The petitioner was, in fact given an extension of the deadline to January 31, 1996. When he failed to meet this deadline, charges were issued out of the Victoria Registry of the Provincial Court of British Columbia.

The petitioner seeks a stay of that prosecution in this Court on the grounds that, in the circumstances, the proceedings constitute an abuse of process and a violation of his Charter rights.

In support of this remedy the petitioner has filed an affidavit deposing that, for a number of reasons, compliance was impossible despite his best efforts. He submits that the offences for which he stands charged are strict liability, not absolute liability offences and that “due diligence” is a defence. He cites as authority, an Alberta Court of Appeal decision, R. v. Merkle (1979), 80 D.T.C. 6027 (Alta. C.A.), applied in British Columbia in R. v. John & Murray Motors Ltd. (1979), 12 B.C.L.R. 155 (B.C. C.A.).

I do not understand Revenue Canada to disagree with the proposition that “due diligence” may constitute a defence. The Compliance Officer assigned to the petitioner’s file, however, deposes to facts which, if believed, would cast doubt on the petitioner’s diligence.

The petitioner deposes further that the Compliance Officer has demonstrated an excess of prosecutional zeal in this case as evidenced by, among other things:

(a) a request for a substantial fine in his correspondence with Crown Counsel;

(b) his “rudeness” throughout;

(c) the choice of venue (Victoria vs. Port Alberni);

(d) the choice of charge (s .238(1) vs. s. 150)

all of which he submits warrants the intervention of this court.

Revenue Canada, by its Compliance Officer, denies any rudeness or impropriety and deposes that the venue was chosen because the offence, being in essence a failure to deliver returns, is committed where the returns are required by Revenue Canada.

Respecting choice of charge, the petitioner’s argument was not anticipated by Crown. Counsel for the petitioner allowed that on that issue Crown ought to be afforded an opportunity to fully develop its argument. The matter was heard on the basis that I would not find in favour of the petitioner on this ground without inviting further submissions from Crown. It will not be necessary to do so.

Ruling

This petition is an attempt to pre-empt the prosecution of offences under the Income Tax Act in the Provincial Court of British Columbia.

The law is clear that this court has jurisdiction under Section 24(1). I doubt, although I do not decide, that the provisions of s. 2 of the Judicial Review Procedure Act R.S.B.C. 1979, c. 209 as amended, or the inherent jurisdiction of the court, are hierarchical or alternative remedies in a practical sense. This court has the power to restrain abuse of process, by government (specifically under the Charter) or anyone else, in appropriate circumstances. In the context of s. 24(1), Lamer, J. said in R. v. Mills (1986), 26 C.C.C. (3d) 481 (S.C.C.) at page 518:

In recognizing both original and supervisory jurisdictions in superior courts with respect to s. 24(1) applications I am seeking to give effect to the basis proposition that there should always be a court of competent jurisdiction to award such relief as is just and appropriate in the circumstances.

This power is to be exercised with restraint. The trial court is generally to be preferred as Lamer, J. goes on to say at page 519:

At the same time, however, superior courts will rarely be the only competent court. As a general rule it is the trial court that is not only competent, but to be preferred in matters arising under the Charter. Viewed in this light, an unrestrained exercise of this jurisdiction by superior court judges is undesirable in that it could only give way to unnecessary delay or disruption of proceedings.

For these reasons it is necessary that superior courts have discretion to decline jurisdiction where there is a trial court and that court is competent to award just and appropriate relief.

Further in his reasons (at p. 519) Mr. Justice Lamer comments on a quote from À. v. Krakow ski (1983), 4 C.C.C. (3d) 188 (Ont. C.A.) at p. 192:

In most instances it is preferable where the charges are to be tried in

the provincial court that the provincial court decide whether the accused has been denied the right to a trial within a reasonable time as guaranteed by the Charter. The provincial court is in the position to hear viva voce evidence and is familiar with any problems so far as its case-load is concerned. The Supreme Court, on the other hand, might be faced with the difficulty of trying to deal with the matter on the basis of conflicting affidavits. Furthermore, there would be resulting delay if cross-examination of the deponents was required. It is much more satisfactory for the matter to be dealt with at a supervisory or appellate level on the basis of the entire record in the provincial court where all of the relevant issues have been considered in one forum, rather than having been litigated piecemeal.

The provincial court is therefore the court of competent jurisdiction within s. 24(1) of the Charter where the appellant should seek his remedy in this case.

I say this because, apart from the fact that the trial courts are usually the best equipped to deal with Charter issues arising in extant cases before them, their decisions are eventually open to reconsideration through the ordinary appeal process. In determining the exercise of this restraint, I am of the view that we should somewhat extend and adapt to Charter issues (as suggested by Professor J.C. Levy, ibid, at p. 537) “a principled doctrine for declining to exercise jurisdiction”, along the lines of forum non conveniens...

The burden should, therefore, be upon a claimant under the Charter to establish to the court’s satisfaction that the case is an appropriate one for the superior court’s immediate consideration. When there are proceedings pending or underway in the lower courts, and in the absence of any evidence as to why jurisdiction should be assumed under s. 24, the superior court should generally decline to exercise its jurisdiction.

In similar terms, the Ontario Court of Appeal addressed the issue in R. v, Duvivier (1991), 64 C.C.C. (3d) 20 (Ont. C.A.) at p. 23, per Doherty, J.A.:

The jurisdiction to grant ... relief, either by way of prerogative writ or under s. 24(1) of the Charter, is discretionary. It is now firmly established that a court should not routinely exercise that jurisdiction where the application is brought in the course of ongoing criminal proceedings. In such cases, it is incumbent upon the applicant to establish that the circumstances are such that the interests of justice necessitate the immediate granting of the prerogative or Charter remedy by the superior court: see R. v. Rahey; per Lamer J. at pp 289-9, per La Forest J. at pp. 318-9; R. v. Gamble (1988), 45 C.C.C. (3d) 204 at pp. 232-3, [1988] 2 S.C.R. 595, 66 C.R. (3d) 193; R. v. Whitmore (1989), 51 c.C.C. (3d) 294 at p. 296, 35 O.A.C. 373, 8 W.C.B. (2d) 430 (C.A.); affirming 41 C.C.C. (3d) 555 at P. 560 (Ont. H.C.J.); R. v. Corbeil (1986), 27 C.C.C. (3d) 245 at p. 250-6, 24 C.R.R. 174, 13 O.A.C. 382 (C.A.); R. v. Krakowski (1983), 4 C.C.C. (3d) 188 at p. 191, 146 D.L.R. (3d) 760, 41 O.R. (2d) 321 (C.A.); R. v. Potma (1983), 2 C.C.C. (3d) 383 at p. 394, 144 D.L.R. (3d) 620, 41 O.R. (2d) 43 (C.A.); leave to appeal to S.C.C. refused D.L.R., O.R. loc. cit., 33 C.R. (3d) xxv; Re Anson and The Queen (1983), 4 C.C.C. (3d) 199 at p. 131, 146 D.L.R. (3d) 661, 35 C.R. (3d) 179 (B.C.C.A.); Re Kenall and The Queen (1982), 2 C.C.C. (3d) 244 at pp. 225-6, 144 D.L.R. (3d) 185, 18 M.V.R. 252 (Alta. C.A.); Re Thatcher and Merchant and The Queen (1983), 7 C.C.C. (3d) 446, 1 D.L.R. (4th) 763, 27 Sask. R. 68 (C.A.).

These cases dictate that issues, including those with a constitutional dimension, which arise in the context of a criminal prosecution should routinely be raised and resolved within the confines of the established criminal process which provides for a preliminary inquiry (in some cases), a trial, and a full appeal on the record after that trial.

Those same cases identify the policy concerns which underline the predilection against resort to the superior court for relief during criminal proceedings. Such applications can result in delay, the fragmentation of the criminal process, the determination of issues based on an inadequate record, and the expenditure of judicial times and effort on issues which may not have arisen had the process been left to run its normal course. The effective and efficient operation of our criminal justice system is not served vy interlocutory challenges to rulings made during the process or by applications for rulings concerning issues which it is anticipated will arise at some point in the process. A similar policy is evident in those cases which hold that interlocutory appeals are not available in criminal matters: see R. v. Morgentaler (1984), 16 C.C.C. (3d) 1, 14 D.L.R. (4th) 184, 41 C.R. (3d) 262 (Ont. C.A.); R. v. Mills, supra, per Mcintyre J. at pp. 495-500; R. v. Meltzer (1989), 49 C.C.C. (3d) 453 at p. 460-2, [1989] 1 S.C.R. 1764, 70 C.R. (3d) 383.

I stress, however, that this limitation on resort to Charter or extraordinary remedy relief during criminal proceedings has been judicially imposed and cannot be taken as the equivalent of an absolute privative clause barring all such applications. Where the circumstances are such that the interests of justice require immediate intervention by the superior court, that jurisdiction can and will be exercised. R. v. Rahey supra, provides a good example of a situation in which such intervention was warranted.

I am not at all satisfied that the interests of justice dictate this court’s intervention in this case. What is before me is an arguable case of “due diligence” which could not be effectively adjudicated, in any event, on the conflicting affidavit material before me. The advantage of the trial court hearing this matter on viva voce evidence is patent. This application is, on that ground, an attempt by the petitioner to obtain “a determination of issues based on an inadequate record.” The same holds true for all of the allegations of oppressive conduct. To the extent that such evidence has a bearing on the petitioner’s case, it can only be adequately resolved in the context of a trial.

With respect to venue, the petitioner cites R. v. Reyat (February 9, 1990), Doc. Vancouver CC880195 (B.C. S.C.), as authority for the proposition that he ought to be tried in Port Alberni. In Reyat, the Crown, in order to change the venue of a trial from Vancouver to New Westminster, issued a new indictment out of the New Westminster Registry rather than making an application for a change of venue. There, Mr. Justice Callaghan of this court referred to the common law rule that “an accused has a prima facie right to be tried in the jurisdiction where the offence took place” in refusing to allow what the Crown had attempted to do.

In this case, the Crown submits that the offence took place where process was initiated. But, even if I assume that Port Alberni is a more appropriate venue, I know of no ground or basis on which this court ought to intervene to direct the process of the trial court in such matters, particularly in the absence of a ruling in that court in the first instance. I note that in Reyat, Mr. Justice Callaghan was directing process in his own court. I also note, as an aside, that this petition was brought out of the Nelson Registry of the Supreme Court, at a location with no connection or proximity to the events and parties involved in these proceedings, an irony not lost on the petitioner’s solicitor. I find, unhesitatingly, that this court is not the appropriate forum for a ruling on the appropriate Provincial Court venue.

The final issue apparently arises out of the petitioner’s reading of R. v. Pacey (April 11, 1995), Harper, Prov. Ct. J. (N.B. Prov. Ct.), an April 11, 1995 judgment of the New Brunswick Provincial Court at Fredericton. There, after hearing evidence, Harper, Prov. Crt. J., found that in the circumstances of that case the Crown pursuit of penalties under s. 238 was an abuse of process and directed a stay of proceedings. I make no comment on the merits of this argument as applied to the petitioner. I simply note that Pacey illustrates the fact that the Charter remedy sought by the petitioner is available in the trial court, and it is plainly obvious that that is where the argument ought to be advanced, upon a hearing of the evidence and not upon the “inadequate record” before me.

The petition is therefore dismissed. Counsel are at liberty to make submissions as to costs should they deem it necessary.

Petition dismissed.