Patry v. Canada (Attorney General), 2011 FC 1032

• Judge: Mactavish, J.
• Court: Federal Court (Canada)
• Case Date: August 16, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 1032;(2011), 396 F.T.R. 203 (FC)

Patry v. Can. (A.G.) (2011), 396 F.T.R. 203 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. SE.017

Raymond and Tara Patry (applicants) v. The Attorney General of Canada (respondent)

(T-939-10; T-940-10; T-1361-10; T-1421-10; T-1819-10; T-1980-10; T-1981-10; T-1982-10; T-2063-10; T-367-11; T-368-11; T-450-11; 2011 FC 1032)

Indexed As: Patry v. Canada (Attorney General)

Federal Court

Mactavish, J.

August 31, 2011.

Summary:

Raymond and Tara Patry commenced 13 applications for judicial review with respect to various enforcement and collection steps taken by the Canada Revenue Agency and its employees in relation to the couple's tax affairs. They had been charged criminally with various Income Tax Act and Excise Tax Act offences and were scheduled to stand trial. The Patrys brought a motion seeking various forms of interim prohibitory and injunctive relief in 12 of their applications. The final form of relief sought was an order that the applications be held in abeyance pending resolution of the criminal charges.

The Federal Court dismissed all the motions. Given the agreement of the parties that the applications for judicial review be held in abeyance pending the resolution of the criminal trial, the court issued an order to that effect.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See Injunctions - Topic 1888 ].

Civil Rights - Topic 4461

Protection against self-incrimination - Use of incriminating evidence in other proceedings - General - [See Injunctions - Topic 1888 ].

Criminal Law - Topic 59

General principles - Protection against self-incrimination - Application of protection of federal Evidence Act - [See Injunctions - Topic 1888 ].

Evidence - Topic 4322

Witnesses - Privilege - Self-incriminating facts - Extent of the privilege - [See Injunctions - Topic 1888 ].

Income Tax - Topic 8965

Administration - Communication of information - Use in criminal proceedings - The applicants sought judicial review with respect to steps taken by the Canada Revenue Agency in relation to the applicants' tax affairs - They had been charged criminally with various Income Tax Act and Excise Tax Act offences and were scheduled to stand trial - The applicants moved for interim prohibitory and injunctive relief - Many of their submissions rested on their interpretation of R. v. Jarvis (2002) (S.C.C.), a criminal case where the accused was charged with tax evasion - At issue in that case was the admissibility of evidence obtained in the course of an audit - The Federal Court considered what the Supreme Court actually said in that case - See paragraphs 36 to 43 - It was important to keep in mind that the concern addressed in Jarvis was the use of what the Supreme Court described as "the powerful inspection and requirement tools in ss. 231.1(1) and 231.2(1)" of the Income Tax Act to compel information for use in a criminal proceeding, without observing the safeguards afforded to criminal suspects by the warrant process - That was not what had happened in this case - See paragraph 120.

Injunctions - Topic 1606

Interlocutory or interim injunctions - General principles - Balance of convenience - [See third Injunctions - Topic 1802 ].

Injunctions - Topic 1616

Interlocutory or interim injunctions - General principles - Arguable issues of law involved or serious question to be tried - The applicants had both worked for the Burnaby-Fraser Tax Service Office (BFTSO) of the Canada Revenue Agency (CRA) - They applied for judicial review with respect to actions taken by the CRA and its employees in relation to the applicants' tax affairs - Part of the interim relief they sought was an order directing that the BFTSO cease to handle their tax affairs - The applicants submitted that they "had a long and colourful history at the BFTSO", which gave rise to reasonable apprehension on their part that the BFTSO was biased against them - The Federal Court stated that "in order to establish the existence of a serious issue in an underlying application for judicial review for the purposes of granting interim injunctive relief, applicants need only show that the application is neither frivolous nor vexatious" - Nevertheless, the applicants had not met even that low threshold - See paragraphs 17 to 20.

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - The applicants sought an order quashing the 30 day "demands to file" issued to them by the Canada Revenue Agency - They had been charged criminally with various Income Tax Act and Excise Tax Act offences and were scheduled to stand trial - The applicants contended that the demands were served to obtain information in order to further the criminal investigation, and were thus improper - The respondent's evidence indicated that the demands were issued by an automated system - The Federal Court observed that part of what the applicants were seeking was essentially final relief, "clearly inappropriate on an interim motion" - To the extent that the applicants sought an order staying the demands on an interim basis, the court did not need to decide if a serious issue had been shown as the applicants had not satisfied the court that they would suffer irreparable harm if the interim relief was not granted - The applicants had a statutory obligation to file tax returns - Requiring them to comply with their statutory obligations did not constitute irreparable harm - See paragraphs 61 to 69.

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - The applicants commenced judicial review applications with respect to various steps taken by the Canada Revenue Agency (CRA) in relation to the applicants' tax affairs - They had been charged criminally with various Income Tax Act and Excise Tax Act offences and were scheduled to stand trial - The applicants sought interim relief, including an order quashing the CRA's 30 day "demands to file" - They argued that the CRA had seized the documents required to complete their tax returns - The Federal Court held that the applicants failed to establish with clear and non-speculative evidence that they would suffer irreparable harm - The applicants had not identified which documents they needed - Moreover, it was open to them to bring a motion to have the seized items returned - There was no suggestion that the applicants ever attempted to inspect the documents that they now said they needed or that they were prevented from so doing - Finally, it remained open to them to seek to have any evidence obtained in accordance with the demands excluded at their criminal trial - See paragraphs 73 to 78.

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - The applicants commenced judicial review applications with respect to various steps taken by the Canada Revenue Agency (CRA) in relation to the applicants' tax affairs - They had been charged criminally with various Income Tax Act and Excise Tax Act offences and were scheduled to stand trial - The applicants sought an order granting injunctive and prohibitory relief - The Federal Court accepted that the applicants had established that there was a serious issue in several of the underlying applications insofar as they related to the apparent involvement of the CRA's criminal investigator in the collections process - However, the applicants had not provided "clear and compelling" evidence that they would suffer irreparable harm if interim relief was not granted - It was open to them to seek to have any evidence obtained in contravention of principles articulated in R. v. Jarvis (2002) (S.C.C.) excluded at their criminal trial - Further, the balance of convenience favoured the respondent - "There is a strong public interest in allowing the Minister to continue to perform the statutory duty imposed on him by the Excise Tax Act" - See paragraphs 81 to 101.

Injunctions - Topic 1888

Interlocutory or interim injunctions - Evidence and proof - Affidavit evidence - The applicants commenced applications for judicial review with respect to various actions taken by the Canada Revenue Agency - They had been charged criminally with various Income Tax Act and Excise Tax Act offences and were scheduled to stand trial - They moved for interim prohibitory and injunctive relief - The main affidavits were sworn by their counsel's legal assistant - Neither applicant provided an affidavit - The applicants argued there was a potential for self-incrimination because of the criminal proceedings - The Federal Court stated that the argument failed to take into account the protections afforded by s. 5 of the Canada Evidence Act - If the applicants were cross-examined on their affidavits, it was open to them to refuse to answer questions - If a court order compelled them to answer, the protection afforded by s. 5(2) would apply, precluding the use of their answers in their criminal trial - The applicants might also be entitled to protection under s. 7 of the Charter - See paragraphs 8 to 16.

Cases Noticed:

Copello v. Canada (Minister of Foreign Affairs) et al. (1998), 152 F.T.R. 110 (T.D.), refd to. [para. 20].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 21].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 21].

Canadian Broadcasting Corp. v. Canadian Human Rights Commission et al. (1993), 71 F.T.R. 214 (T.D.), refd to. [para. 22].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 24].

Arthur v. Canada (Procureur général) (2001), 283 N.R. 346; 2001 FCA 223, refd to. [para. 24].

Zündel v. Citron et al., [2000] 4 F.C. 225; 256 N.R. 201 (F.C.A.), refd to. [para. 28].

R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1; 2002 SCC 73, consd. [para. 36].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1, appld. [para. 45].

MacKay v. Rippon, [1978] 1 F.C. 233 (T.D.), refd to. [para. 48].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 51].

Aventis Pharma S.A. et al. v. Novopharm Ltd., [2005] F.T.R. Uned. A18; 2005 FC 815, affd. [2005] N.R. Uned. 155; 44 C.P.R.(4th) 326; 2005 FCA 390, refd to. [para. 52].

International Longshore and Warehouse Union, Canada et al. v. Canada (Attorney General) et al. (2008), 371 N.R. 357; 2008 FCA 3, refd to. [para. 53].

Canada v. Bromley et al., [2002] B.C.T.C. 149; 2002 BCSC 149, refd to. [para. 74].

047424 N.B. Inc. et al. v. Minister of National Revenue (1998), 157 F.T.R. 44 (T.D.), refd to. [para. 77].

Tele-Mobile Company Partnership et al. v. Canada Revenue Agency (2010), 373 F.T.R. 206; 2011 FCA 89, refd to. [para. 80].

Main Rehabilitation Co. v. Minister of National Revenue (2004), 329 N.R. 248; 2004 FCA 402, refd to. [para. 92].

Stanfield et al. v. Minister of National Revenue (2005), 277 F.T.R. 135; 2005 FC 1010, refd to. [para. 95].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 5 [para. 11].

Counsel:

Gavin Laird, for the applicants;

Neva Beckie and David Everett, for the respondent.

Solicitors of Record:

Laird & Company, Pitt Meadows, British Columbia, for the applicants;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

These motions were heard at Vancouver, B.C., on August 16, 2011, before Mactavish, J., of the Federal Court, who delivered the following order and reasons for order, dated August 31, 2011.