Federal Appeal

Income tax

Motion was collateral attack on jeopardy order proceedings

Taxpayer wrote on income tax returns, “collecting income tax by government is against Constitution of Canada.” Taxpayer was charged with income tax evasion. Taxpayer’s objections to 1993 to 1996 income tax assessments were being held pending disposition of tax evasion charges. Between June 1999 and May 2003, CRA collected $871,291.90 from taxpayer pursuant to 1999 jeopardy order. In 2010 and 2011, taxpayer was twice convicted of tax evasion and ordered to pay fines of $522,346.73 and $101,393.80. Taxpayer’s case before Tax Court was reactivated. Taxpayer wished funds collected pursuant to jeopardy order to be applied to liability which would survive potential bankruptcy. Federal Court dismissed taxpayer’s motion for order directing that money collected pursuant to jeopardy order be first applied to fines arising from criminal convictions. Court considered that, when jeopardy order was issued and money was collected pursuant to order, only debt owing was tax debt, not criminal fine and that taxpayer was not permitted to choose how to allocate involuntary payment. Taxpayer appealed. Appeal dismissed. Judge did not err in dismissing taxpayer’s motion. Taxpayer was not challenging validity of search warrant so there was no basis to conclude taxpayer’s Charter rights were violated. Taxpayer failed to show that judge’s factual finding that CRA had every reason to believe taxpayer would not voluntarily pay his taxes was wrong or that jeopardy order would not have issued but for evidence obtained by way of search warrant. There was no impropriety in fact that some evidence obtained through search warrant was put before court in motion to obtain jeopardy order. Nor was CRA’s use of jeopardy order to enforce payment of tax debt analogous to use of criminal powers to enforce civil debt. Only way to vary or vacate jeopardy order was by application for review by judge of court which issued order and no appeal lies from such review. Jeopardy order was already reviewed and upheld so motion was collateral attack on jeopardy order proceedings. Finally, taxpayer failed to demonstrate that process followed to date, or to be followed, was not in accordance with principles of fundamental justice.

R. v. Klundert (Jun. 16, 2014, F.C.A., Eleanor R. Dawson J.A., Johanne Trudel J.A., and D.G. Near J.A., File No. A-83-13) Decision at 107 W.C.B. (2d) 155 was affirmed.  116 W.C.B. (2d) 179.

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