Coffen v. Minister of National Revenue, (1998) 106 O.A.C. 210 (CA)

• Judge: McMurtry, C.J.O., Doherty and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 17, 1997
• Jurisdiction: Ontario
• Citations: (1998), 106 O.A.C. 210 (CA)

Coffen v. MNR (1998), 106 O.A.C. 210 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. JA.008

Her Majesty the Queen (appellant) v. Kenneth N. Coffen (respondent)

(C26902)

Indexed As: Coffen v. Minister of National Revenue

Ontario Court of Appeal

McMurtry, C.J.O., Doherty and Rosenberg, JJ.A.

January 13, 1998.

Summary:

A taxpayer was charged with one count of wilfully evading the payment of federal taxes in the amount of $86,814.16 by failing to report income of $312,535.86 respecting the taxation years 1985, 1986 and 1987 (Income Tax Act, s. 239(1)(d)) and three counts of unlawfully making false or decep­tive state­ments in his 1985, 1986 and 1987 tax returns by understating his income in the respective years by $40,701.61, $203,152.60 and $68,681.66 (s. 239(1)(a)).

The Ontario Court of Justice (Provincial Division) convicted the taxpayer on all charges and imposed a fine of $146,000. The taxpayer appealed his conviction and sen­tence.

The Ontario Court (General Division), in a decision reported 26 O.T.C. 321, allowed the appeal, set aside the conviction and sentence and ordered a new trial. The Crown appealed.

The Ontario Court of Appeal allowed the appeal, restored the conviction subject to an amendment respecting the amount of income the taxpayer failed to report. The court remitted the matter to the General Division for submissions on the sentencing appeal. The court directed the General Division to consider the effect of the amendment to the conviction.

Criminal Law - Topic 4516

Procedure - Trial - Special duties of Crown - Splitting Crown's case - A taxpayer was charged with tax evasion - The Crown introduced an affidavit from an officer of the taxpayer's bank showing deposits to the taxpayer's personal account - Many of the deposits had been made by the taxpayer's son - In its case in-chief, the Crown asserted that the deposits were the taxpayer's income as there was no evi­dence as to the source of the funds - The taxpayer called his son as a witness - In cross-examination, the son testified that to the best of his knowledge the deposits pertained to the revenue of the taxpayer's company - At the close of the defence case and following argument, the Crown re­called a witness in reply to quantify the additional amounts of revenue - The Ontario Court of Appeal affirmed the admission of the reply evidence, rejecting the assertion that the Crown had improp­erly split its case - See paragraphs 2, 3.

Criminal Law - Topic 5235

Evidence and witnesses - Rebuttal evi­dence - By Crown - [See Criminal Law - Topic 4516 ].

Criminal Law - Topic 7253

Summary conviction proceedings - Informations - Laying of informations - A taxpayer was convicted of, inter alia, one count of tax evasion respecting the tax­ation years 1985, 1986 and 1987 - A summary conviction appeal judge, set aside the conviction, holding that the count was a nullity because it related to more than one taxation year - The Ontario Court of Ap­peal restored the conviction - Section 581(1) of the Criminal Code required each count in an information to "in general apply to a single transaction" - Here, the Crown alleged a single transaction of tax evasion committed over several years - The Crown was not required to allege a separate offence for each taxation year - There was no evidence of prejudice - If the count was defective, the taxpayer should have objected at trial (Criminal Code, s. 601) - Absent irreparable preju­dice, the taxpayer was not entitled to raise the issue for the first time on the summary convic­tion appeal - See paragraphs 5, 6.

Criminal Law - Topic 7263

Summary conviction proceedings - Informations - Nullities - General - [See Criminal Law - Topic 7253 ].

Criminal Law - Topic 7268

Summary conviction proceedings - Informations - Objections - Time for - [See Criminal Law - Topic 7253 ].

Criminal Law - Topic 7285

Summary conviction proceedings - Informations - Form and content (incl. sufficiency of charge) - [See Criminal Law - Topic 7253 ].

Evidence - Topic 511

Presentation of evidence - Rebuttal evi­dence - Criminal cases - [See Criminal Law - Topic 4516 ].

Income Tax - Topic 7853

Returns, assessments, payment and appeals - Assessments and reassessments - Setting aside - Grounds - A taxpayer was charged with tax evasion - The taxpayer's son had made several deposits to the taxpayer's personal bank account - While being cross-examined by the Crown, the son testified that to the best of his knowledge the de­posits pertained to the revenue of the taxpayer's company - At the close of the defence case and following argument, the Crown recalled a witness in reply to quan­tify the additional amounts of revenue - The Ontario Court of Appeal held that the rule which prohibited the Minister of National Revenue from appealing his own reassessment did not apply - The rule was developed for the purposes of the civil assessment procedure and had no applica­tion to a criminal prosecution for tax eva­sion - See paragraph 4.

Income Tax - Topic 7926

Returns, assessments payment and appeals - Appeals (incl. objections) - General - [See Income Tax - Topic 7853 ].

Income Tax - Topic 9404

Enforcement - Procedure - Form of charge - [See Criminal Law - Topic 7853 ].

Cases Noticed:

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193; 29 C.R.(4th) 113, refd to. [para. 10].

R. v. Keegstra (J.), [1995] 2 S.C.R. 381; 180 N.R. 120; 169 A.R. 50; 97 W.A.C. 50, refd to. [para. 11].

Counsel:

Ivan S. Bloom, Q.C., Gordon S. Campbell and Gary C. Valiquette, for the appli­cant/appellant;

Maxwell M. Steidman, Q.C., and Richard G. Pyne, for the respondent.

This appeal was heard on December 17, 1997, before McMurtry, C.J.O., Doherty and Rosenberg, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was endorsed on the appeal record and released on January 13, 1998.