R. v. Amell (D.P.) et al., 2012 SKQB 87

Judge:Whitmore, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:February 23, 2012
Jurisdiction:Saskatchewan
Citations:2012 SKQB 87;(2012), 391 Sask.R. 196 (QB)
 
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R. v. Amell (D.P.) (2012), 391 Sask.R. 196 (QB)

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Temp. Cite: [2012] Sask.R. TBEd. MR.013

Her Majesty the Queen (respondent) v. Douglas Preston Amell, Heidi Lynne Keyzer, and Robert Amell (appellants)

(2010 Q.B. No. 115; 2010 Q.B. No. 148; 2012 SKQB 87)

Indexed As: R. v. Amell (D.P.) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Moose Jaw

Whitmore, J.

February 23, 2012.

Summary:

The three accused were charged with offences under the Income Tax Act, including filing false returns in 2003 to 2006, inclusive, and obtaining tax credits/benefits to which they were not entitled.

The Saskatchewan Provincial Court, in a decision reported at 361 Sask.R. 61, found each of the accused guilty as charged. Douglas Amell was sentenced to 16 months in prison and was ordered to pay a fine of 100% of the amount evaded (over $170,000). Heidi Keyzer was sentenced to five months' imprisonment, while Robert Amell was sentenced to three months, and both were ordered to pay fines in the amount of 100% of the tax evaded. Each of the accused appealed both conviction and sentence.

The Saskatchewan Court of Queen's Bench dismissed the conviction and sentence appeals with respect to each of the accused.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Income Tax - Topic 9311 ].

Criminal Law - Topic 127

General principles - Rights of accused - Right to be present at trial - The three accused were convicted of several counts under the Income Tax Act - Each had represented himself or herself at trial, although one (D. Amell) was the preferred representative - On the appeal, the accused argued that the trial judge erred in allowing the voir dire to proceed in the absence of one of the accused (Keyzer) - Section 802.1 of the Criminal Code prevented an agent from appearing for an accused where the accused was liable on summary conviction to imprisonment for more than six months - Keyzer was liable to a term of imprisonment not exceeding two years on each count - The Saskatchewan Court of Queen's Bench applied the curative provision of s. 686(1)(b)(iv) of the Criminal Code - Although there was an irregularity here, Keyzer did not suffer any prejudice as a result of her absence, and her right to a fair trial was not impaired - See paragraphs 53 to 64.

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - [See Income Tax - Topic 9311 ].

Criminal Law - Topic 4222

Procedure - Pleas - Requirement of plea prior to trial - The three accused (unrepresented by counsel) were convicted of charges under the Income Tax Act - On the summary conviction appeal, the accused argued that the trial judge erred by entering "not guilty" pleas on their behalf - The Saskatchewan Court of Queen's Bench rejected the argument - More than one year had passed between the time the charges were laid and the time of trial, and the accused did not find counsel to defend them in the manner they wished to defend themselves - There was no lack of understanding on the part of the accused - Further, the wording of s. 606(2) of the Criminal Code was clear: "Where an accused refuses to plead or does not answer directly, the court shall order the clerk of the court to enter a plea of not guilty" - The judge had no other reasonable course of action in this case - See paragraphs 45 to 52.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - The three accused were convicted of charges under the Income Tax Act - They had advised the court that they had interviewed lawyers but could not find anyone to present their case in the way they wished - Each had represented himself or herself at trial, although one (D. Amell) was the preferred representative - On the summary conviction appeal, the accused argued that the trial judge erred in failing to explain to them their procedural rights at the close of the Crown's case, including failing to advise D. Amell that he was not required to testify and that if he did testify, he would be cross-examined - The two other accused did not testify - The Saskatchewan Court of Queen's Bench stated that "[d]espite the fact that The Income Tax Act is a complex piece of legislation, the appellants' defence was well articulated and ably argued" - The trial judge exercised his discretion reasonably - See paragraphs 78 to 84.

Criminal Law - Topic 4487

Procedure - Trial - Attendance of accused - [See Criminal Law - Topic 127 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Income Tax - Topic 9686 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Income Tax - Topic 9686 ].

Criminal Law - Topic 5897

Sentence - False statements (Code, Income Tax Act, etc.) - [See Income Tax - Topic 9686 ].

Criminal Law - Topic 7472.1

Summary conviction proceedings - Appeals - General - Appeal from sentence - [See Income Tax - Topic 9686 ].

Income Tax - Topic 3910

Interpretation - General - Intention of taxpayer - [See Income Tax - Topic 9512 ].

Income Tax - Topic 9302

Enforcement - Search and seizure - Search warrants - [See Income Tax - Topic 9311 ].

Income Tax - Topic 9311

Enforcement - Search and seizure - Validity - The Canada Revenue Agency searched the accused's offices and home pursuant to a search warrant issued under s. 487 of the Criminal Code - The accused were convicted of charges under the Income Tax Act - On appeal, the accused argued that it was inappropriate to use s. 487 of the Code when s. 231 of the Income Tax Act was enacted specifically for that purpose, and thus a s. 487 search amounted to unreasonable search and seizure, a breach of s. 8 of the Charter - The Saskatchewan Court of Queen's Bench rejected the argument - "Section 487 of the Code specifically enables the use of the search warrant provisions in relation to any other Act of Parliament. I agree with the trial judge's ultimate conclusions that the use of the provisions of s. 487 of the Code to obtain a search warrant was appropriate and find those conclusions reasonable" - There was no Charter breach - In any event, the trial judge could not make a determination of the constitutionality of s. 487 of the Code because no notice was given under The Constitutional Questions Act - See paragraphs 26 to 41.

Income Tax - Topic 9512

Tax evasion and tax avoidance - General principles - Requirement of intent or wilfulness - A naturopathic practitioner incorporated a clinic and carried on his practice under the company - His common law spouse and his father were employed by the company - Each of the three (collectively, the accused/the appellants) executed a "contract for hire, independent agent agreement" with the company - The accused declared no income from the clinic - The three were charged with offences under the Income Tax Act - The accused argued that they did not have the requisite intent to avoid payment of taxes, rather they honestly held the view that the compensation they received was not income - The trial judge found that the doctrine of "wilful blindness" applied and concluded that the view of the accused was a mistake of law and not a mistake of fact - The Saskatchewan Court of Queen's Bench found the trial judge's conclusion was reasonable - "The appellants developed a scheme that was designed to avoid payment of taxation. They also were well aware that this scheme was a variation of a scheme that had been tested and failed in courts in this country many times" - See 86 to 101.

Income Tax - Topic 9684

Tax evasion and tax avoidance - Punishments - Sentence - Imprisonment - [See Income Tax - Topic 9686 ].

Income Tax - Topic 9686

Tax evasion and tax avoidance - Punishments - Sentence - Fines - Tax sought to be evaded - The accused (D. Amell, Keyzer (his common law wife) and R. Amell) were convicted of charges under the Income Tax Act, including filing false returns in 2003 to 2006, inclusive, and obtaining tax credits/benefits to which they were not entitled - The trial judge found that denunciation and deterrence were the most important factors in this case: large scale fraud (D. Amell); premeditated and carried out over four years; motivated by greed; none of the parties demonstrated any remorse; no taxes had been repaid - D. Amell was sentenced to 16 months in prison and was ordered to pay a fine of 100% of the amount evaded; Keyzer was sentenced to five months' imprisonment, while R. Amell was sentenced to three months, and both were ordered to pay fines in the amount of 100% of the tax evaded - The Saskatchewan Court of Queen's Bench dismissed the sentence appeal - The trial judge considered the relevant sentencing factors including the fact that all three accused had no criminal record and had a positive reputation in the community - The sentences were not demonstrably unfit - See paragraphs 104 to 117.

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; [1987] 6 W.W.R. 97, refd to. [para. 23].

R. v. Heilman (J.R.), [2011] Sask.R. Uned. 149; 2011 SKQB 340, refd to. [para. 24].

R. v. Charania (A.) et al., [1999] O.T.C. 199 (Sup. Ct.), refd to. [para. 32].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 11 D.L.R.(4th) 641, refd to. [para. 34].

Times Square Book Store, Re (1985), 10 O.A.C. 105; 21 C.C.C.(3d) 503 (C.A.), refd to. [para. 34].

R. v. Brosseau, [1969] S.C.R. 181; 2 D.L.R.(3d) 139, refd to. [para. 45].

R. v. Milina, [1947] 1 D.L.R. 124; [1946] 2 W.W.R. 584 (B.C.C.A.), refd to. [para. 45].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, dist. [para. 53].

R. v. Hertrich, Stewart and Skinner (1982), 137 D.L.R.(3d) 400; 67 C.C.C.(2d) 510 (Ont. C.A.), refd to. [para. 53].

R. v. McLeod (1983), 49 A.R. 321 (N.W.T.S.C.), consd. [para. 59].

R. v. Toor (J.S.) (2000), 279 A.R. 259; 2000 ABQB 983, consd. [para. 59].

R. v. Pickton (R.W.), [2007] B.C.T.C. Uned. I73; 2007 BCSC, refd to. [para. 65].

Durham (Regional Municipality) v. Saeed, 2010 ONCJ 251, refd to. [para. 76].

R. v. Harris (R.L.) (2009), 331 Sask.R. 283; 460 W.A.C. 283; 2009 SKCA 96, refd to. [para. 79].

R. v. Klundert (J.) (2004), 190 O.A.C. 36; 242 D.L.R.(4th) 644 (C.A.), refd to. [para. 87].

R. v. Bodnarchuk (M.M.) (2008), 254 B.C.A.C. 6; 426 W.A.C. 6; 2008 BCCA 39, refd to. [para. 109].

R. v. Adams, 2009 ONCJ 383, refd to. [para. 109].

R. v. Coffin (2006), 210 C.C.C.(3d) 227; 2006 QCCA 471, refd to. [para. 115].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 487 [para. 30]; sect. 606(2) [para. 48].

Income Tax Act, sect. 231 [para. 30].

Counsel:

Douglas G. Curliss, Q.C., for the Crown;

Douglas H. Christie, for the appellants.

This appeal was heard before Whitmore, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Moose Jaw, who delivered the following judgment, dated February 23, 2012.

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