R. v. Amell (D.P.), (2013) 414 Sask.R. 152 (CA)

• Judge: Cameron, Lane and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 11, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 414 Sask.R. 152 (CA);2013 SKCA 48

R. v. Amell (D.P.) (2013), 414 Sask.R. 152 (CA);

    575 W.A.C. 152

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MY.016

Douglas Preston Amell (appellant) v. Her Majesty the Queen (Canada) (respondent)

(CACR2127)

Heidi Lynne Keyzer (appellant) v. Her Majesty the Queen (Canada) (respondent)

(CACR2128)

Robert Lawrence Amell (appellant) v. Her Majesty the Queen (Canada) (respondent)

(CACR2129; 2013 SKCA 48)

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

Saskatchewan Court of Appeal

Cameron, Lane and Herauf, JJ.A.

May 3, 2013.

Summary:

Douglas Amell practised naturopathy through his incorporated clinic, and was the sole director and shareholder of the corporation. His wife (Heidi) and his father (Robert) were employed by the corporation. Douglas, Heidi and Robert participated in a scheme, masterminded by Douglas, where they signed a "contract for hire" as a "natural person" and received compensation in exchange for property (their time and labour), without the compensation counting as taxable income. Each were charged with summary conviction offences under the Income Tax Act.

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

The Saskatchewan Court of Queen's Bench, in a decision reported at 391 Sask.R. 196, dismissed the appeals. Each appealed both conviction and sentence.

The Saskatchewan Court of Appeal dismissed the appeals of conviction and sentence of Douglas and Robert. The appeal of Heidi was allowed, her convictions set aside, and a new trial ordered.

Criminal Law - Topic 127

General principles - Rights of accused - Right to be present at trial - The appellants (Douglas, Heidi and Robert) were convicted of a number of summary conviction offences under the Income Tax Act - They were unrepresented by counsel - While Douglas had full control of the trial, Heidi had been assisting him - During the course of the voir dire, Heidi was unable to attend court due to a medical emergency - Heidi argued that the trial judge's failure to grant her an adjournment denied her the right to be present during the whole of her trial, and that the summary conviction appeal court judge erred by not allowing her appeal - The Saskatchewan Court of Appeal allowed Heidi's appeal and ordered a new trial - Her right to attend the voir dire was breached - She ought to have been granted an adjournment - "Heidi was not represented by counsel, her absence was raised immediately and repeatedly and she was absent for a considerable part of the voir dire. Further, she was absent for arguments regarding whether her Charter rights were breached and some of this testimony was applied at trial. And, ... because of the limitation imposed by s. 802.1 [of the Criminal Code] she had no one to represent her interests throughout much of the voir dire" - The curative provision, s. 686(1)(b)(iv) of the Code, could not be applied - While no actual harm resulted from Heidi missing a portion of the voir dire, "it would be very difficult in the circumstances of this case to say that a person with serious medical difficulties requiring immediate hospitalization would not have a negative perception of the administration of justice" - See paragraphs 30 to 50.

Criminal Law - Topic 3046

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

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - The appellants (Douglas, Heidi and Robert) were convicted of a number of summary conviction offences under the Income Tax Act - They had advised the trial judge that they could not find a lawyer to present their case in the way they wished - Each had represented himself or herself at trial, although Douglas was the preferred representative - Heidi and Robert did not testify - The appellants argued that the trial judge erred in failing to advise Douglas that he was not required to testify - The Saskatchewan Court of Appeal stated that "The appellants are correct the trial judge has a duty to ensure an accused receives a fair trial and there is no miscarriage of justice ... Reviewing the transcripts from the trial, it is clear that Douglas had every intention of testifying in order to put his side of the story before the trial judge. ... Given Douglas had carriage of the voir dire as the spokesperson for the appellants who chose not to testify, it must be inferred he knew he had the right not to testify like his co-accused. Assuming an error, the appellants have demonstrated no prejudice from such error nor have they demonstrated the error led to any trial unfairness." - See paragraphs 23 to 26.

Criminal Law - Topic 4302.1

Procedure - Trial judge - Duties and functions of - Respecting adjournments - [See Criminal Law - Topic 127 ].

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - [See Criminal Law - Topic 127 ].

Criminal Law - Topic 4487

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

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The appellants were convicted of a number of offences under the Income Tax Act - The trial judge had refused to compel disclosure of an Early Warning Report allegedly prepared by officials in Canada Revenue Agency (CRA) - There was conflicting evidence as to the existence of such a document - The appellants contended their right to full disclosure was breached - They believed the document would show that the CRA violated the law by using the requirement power of the audit to gather evidence for a criminal investigation - If their Charter rights were violated, such a document could potentially change the outcome of a new trial - The Saskatchewan Court of Appeal saw no error - "The onus is on the defence to show there was in existence potentially relevant material and they did not meet this burden." - The trial judge concluded the document, if it existed, was not relevant and the summary conviction appeal court judge was correct to find no error - See paragraphs 27 to 29.

Criminal Law - Topic 5720.3

Punishments (sentence) - Conditional sentence - Considerations - [See Income Tax - Topic 9684 ].

Criminal Law - Topic 5897

Sentence - False statements (Code, Income Tax Act, etc.) - [See Income Tax - Topic 9684 ].

Criminal Law - Topic 7472.1

Summary conviction proceedings - Appeals - General - Appeal from sentence - [See Income Tax - Topic 9684 ].

Criminal Law - Topic 7633

Summary conviction proceedings - Appeals - New trials - Grounds - [See Criminal Law - Topic 127 ].

Income Tax - Topic 9302

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

Income Tax - Topic 9311

Enforcement - Search and seizure - Validity - These were summary conviction appeals of conviction and sentence pursuant to s. 839(1) of the Criminal Code - The appellants were convicted of a number of offences under the Income Tax Act - The Canada Revenue Agency (CRA) had searched the appellants' offices and home pursuant to a search warrant issued under s. 487 of the Code - The appellants contended that CRA should have obtained the search warrants pursuant to ss. 231.1(3) and 231.3(1) of the Income Tax Act (ITA) - They argued that a search warrant issued pursuant to the Code provided fewer constitutional protections because it provided fewer procedural safeguards than a search warrant issued pursuant to s. 231 of the ITA - The Saskatchewan Court of Appeal held that the summary conviction appeal court judge did not err in law by upholding the search warrants - The differences between s. 231 of the ITA and s. 487 of the Code were of no constitutional effect in the case - The appellants had the onus of establishing their Charter rights were breached, and failed to meet that onus - See paragraphs 9 to 22.

Income Tax - Topic 9684

Tax evasion and tax avoidance - Punishments - Sentence - Imprisonment - The appellants (Douglas, his wife and father) were convicted of summary conviction offences under the Income Tax Act - Douglas was sentenced to 16 months in prison and fined the amount of the unpaid taxes - Douglas argued that his sentence was overly harsh and that a conditional sentence would have met the sentencing objectives of deterrence and denunciation for a first-time offender - The Saskatchewan Court of Appeal held that the summary conviction appeal court judge was correct to uphold the sentence - "Douglas was the mastermind who dragged his wife and father into the scheme. He very deliberately chose to ignore professional advice and ignore the opportunity to get an advance ruling. He took advantage of social programs not designed for someone earning the amount of income he was drawing from the business. There was no remorse demonstrated until the eve of the sentencing hearing. The trial judge was correct to be sceptical. The federal tax evasion was approximately $190,000 and there was a very significant, but unproven, provincial revenue loss." - See paragraphs 51 to 58.

Income Tax - Topic 9686

Tax evasion and tax avoidance - Punishments - Sentence - Fines - [See Income Tax - Topic 9684 ].

Cases Noticed:

R. v. Mellquist (No. 1) (1988), 68 Sask.R. 198; 42 C.C.C.(3d) 231 (C.A.), refd to. [para. 1].

Baron et al. v. Minister of National Revenue et al., [1993] 1 S.C.R. 416; 146 N.R. 270, refd to. [para. 12].

Multiform Manufacturing Co. et autres v. R. et autres, [1990] 2 S.C.R. 624; 113 N.R. 373; 32 Q.A.C. 241, refd to. [para. 13].

R. v. Charania (A.), [1999] O.T.C. 199; [2000] 1 C.T.C. 134 (Sup. Ct.), refd to. [para. 13].

R. v. Porisky (R.A.), [2012] B.C.T.C. Uned. 68; 2012 D.T.C. 5038; 2012 BCSC 68, refd to. [para. 18].

United States of America v. Anekwu, [2009] 3 S.C.R. 3; 393 N.R. 77; 275 B.C.A.C. 282; 465 W.A.C. 282; 2009 SCC 41, refd to. [para. 22].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 22].

R. v. Harris (R.L.) (2009), 331 Sask.R. 283; 460 W.A.C. 283; 2009 SKCA 96, refd to. [para. 25].

R. v. Nguyen (T.C.) (2006), 285 Sask.R. 85; 378 W.A.C. 85; 2006 SKCA 83, refd to. [para. 29].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 42].

R. v. Walker (K.J.) (2010), 362 Sask.R. 169; 500 W.A.C. 169; 2010 SKCA 84, refd to. [para. 44].

R. v. L.W.T. (2008), 307 Sask.R. 246; 417 W.A.C. 246; 2008 SKCA 17, refd to. [para. 44].

R. v. Schofield (W.T.) (2012), 289 O.A.C. 25; 286 C.C.C.(3d) 555; 2012 ONCA 120, refd to. [para. 50].

R. v. Klundert (J.) (2011), 285 O.A.C. 153;; 107 O.R.(3d) 561; 2011 ONCA 646, dist. [para. 53].

R. v. Sydel, [2006] 5 C.T.C. 88; 2006 BCPC 346, refd to. [para. 56].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 487 [para. 9]; sect. 650(1) [para. 31]; sect. 800(2), sect. 802(2), sect. 802.1, sect. 803(2) [para. 32].

Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, sect. 231.1(3), sect. 231.3(1) [para. 10].

Counsel:

Douglas H. Christie, for the appellants;

Douglas G. Curliss, Q.C., and Kirsten Janis, for the respondent.

These appeals were heard on January 11, 2013, before Cameron, Lane and Herauf, JJ.A., of the Saskatchewan Court of Appeal. In reasons written by Lane, J.A., the Court delivered the following judgment, dated May 3, 2013.