R. v. Century 21 Ramos Realty Inc. and Ramos, (1987) 19 O.A.C. 25 (CA)

• Judge: Martin, Houlden and Tarnopolsky, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 27, 1987
• Jurisdiction: Ontario
• Citations: (1987), 19 O.A.C. 25 (CA);1987 CanLII 171 (ON CA);1987 CanLII 171 (NS CA);58 OR (2d) 737;37 DLR (4th) 649;32 CCC (3d) 353;56 CR (3d) 150;[1987] 1 CTC 340;[1987] OJ No 178 (QL);19 OAC 25;29 CRR 320;41 DTC 5158

R. v. Century 21 (1987), 19 O.A.C. 25 (CA)

MLB headnote and full text

Century 21 Ramos Realty Inc. (formerly known as L. Ramos Realty Limited) and Urbano L. Ramos (appellants) v. Her Majesty the Queen (respondent)

(No. 592/85)

Urbano L. Ramos (appellant) and Her Majesty the Queen (respondent)

(No. 593/85)

Indexed As: R. v. Century 21 Ramos Realty Inc. and Ramos

Ontario Court of Appeal

Martin, Houlden and Tarnopolsky, JJ.A.

February 27, 1987.

Summary:

Ramos was charged with evading the payment of $29,515.70 in income taxes and Ramos and his one-man company were charged with evading $15,000.00 in income taxes, contrary to s. 239(1)(d) of the Income Tax Act. The Crown elected to proceed summarily. At the close of the Crown's case the accused moved for an acquittal. The trial judge granted the motion. On the first charge, the trial judge held that the Crown failed to prove an assessment was made under s. 152 of the Act before the charge was laid. On the second charge, the trial judge held that the Crown failed to prove the alleged evaded taxes were not paid. The Crown appealed by way of stated case.

The Ontario Supreme Court allowed the appeal and held that the trial judge erred on both grounds. The accused appealed.

The Ontario Court of Appeal dismissed the appeal and remitted the matter to the trial judge for completion of trial. The trial judge acquitted the accused. The Crown appealed to the District Court, the summary conviction appeal court.

The Ontario District Court allow ed the appeals and substituted convictions. The accused appealed under s. 771 of the Criminal Code, submitting, inter alia, that s. 239 of the Income Tax Act, so far as it permitted the Crown to proceed by indictment or summarily and thus create different appeal procedures, violated ss. 7, 11(h) and 15 of the Charter of Rights and Freedoms. The accused also submitted that the summary conviction appeal court was not empowered to substitute convictions, but was limited to ordering a new trial.

The Ontario Court of Appeal dismissed the appeal, except to the extent of amending downward the amount of evaded tax on the first charge and remitting the amended first conviction to the trial judge for the imposition of sentence.

Civil Rights - Topic 902

Discrimination - Defined - Canadian Charter of Rights and Freedoms, 1982, s. 15 - The Ontario Court of Appeal held that the words "without discrimination" did not mean that any distinction in treatment constituted discrimination and must be justified under s. 1 of the Charter - The court stated that "without discrimination" prohibited distinctions that were invidious, unreasonable and unjustifiable - See paragraphs 50 to 79.

Civil Rights - Topic 1124

Discrimination - Criminal and quasi-criminal law - Hybrid offences - Section 239 of the Income Tax Act made it an offence to evade taxes - The Crown could elect to proceed by indictment or summarily - Different appeal procedures applied for each - The Ontario Court of Appeal held that assuming persons charged with indict able offences and persons charged with summary conviction offences are class es, it may be difficult to conclude that two persons who have committed the same hybrid offence are not similarly situated for the purposes of s. 15 of the Charter of Rights and Freedoms - The court held that a taxpayer charged summarily failed to prove that the appeal procedure avail able to him, as compared to that available to a person proceeded against by indictment, constituted "discrimination" - See paragraphs 50 to 79.

Civil Rights - Topic 5502

Equality and protection of the law - Right to equality - Whether denied - The Ontario Court of Appeal held that s. 15 of the Charter of Rights and Freedoms required that those who were similarly situated were to be treated similarly - The court stated that minor differences in classes did not mean they were not similarly situated - Section 239 of the Income Tax Act made it an offence to evade taxes - The Crown could elect to proceed by indictment or summarily - Two virtually identical cases could be treated differently if the Crown elected to proceed by indictment on one and summarily on the other - The Ontario Court of Appeal held that a taxpayer who was proceeded against summarily failed to prove a denial of his right to equality under s. 15 of the Charter - See paragraphs 50 to 79.

Civil Rights - Topic 8404

Canadian Charter of Rights and Freedoms - Criminal proceedings - Double jeopardy - Section 755 of the Criminal Code entitled the Crown to appeal summary conviction acquittals on questions of fact - The summary conviction appeal court was not empowered to retry the case and on a review of the record to substitute its findings on credibility for those of the trial judge; the court was entitled to set aside an acquittal on questions of fact only where the verdict was unreasonable or could not be supported by the evidence - The Ontario Court of Appeal held that the Crown's limited right of appeal under s. 755 on questions of fact on the record did not violate the accused's right to life, liberty and security of the person under s. 7 of the Charter or the accused's right not to be tried again following acquittal under s. 11(h) - See paragraphs 81 to 93.

Civil Rights - Topic 8408

Canadian Charter of Rights and Freedoms - Criminal proceedings - Jury trial - Section 239 of the Income Tax Act made it an offence to evade taxes - The Crown had the right to proceed by indictment or summarily - The Ontario Court of Appeal held that the Crown's right of election did not deny a taxpayer's right to a jury trial under s. 11(f) of the Charter - See paragraph 80.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - [See Civil Rights - Topic 8404 above].

Criminal Law - Topic 82

Res judicata - Multiple convictions for same subject matter precluded - Bars to raising defence - An accused convicted of two offences under the Income Tax Act submitted that a conviction on the first offence precluded a conviction on the second, because the offences involved the same money - The Ontario Court of Appeal held that the Kienapple principle did not apply, because the two offences constituted different delicts, they were not founded on the same acts and the second offence had additional and distinguishing elements from the offence charged in the first charge - See paragraphs 100 to 101.

Criminal Law - Topic 4220

Procedure - Pleas - Arraignment procedure - Section 736 of the Criminal Code provided that "where the defendant appears, the substance of the information shall be stated to him ... and he shall be asked whether he pleads guilty or not guilty ..." - An individual defendant and his one-man company were charged with an offence under the Income Tax Act - The clerk of the court read the charge and omitted to describe the defendant as "R.R.#3 Glencoe, Ontario being an officer, director or agent of the said [corporate defendant] ..." - The Ontario Court of Appeal stated that the omission was innocuous; that s. 736 was complied with - See paragraphs 102 to 104.

Criminal Law - Topic 7464

Summary conviction proceedings - Appeals - Powers on appeal - Section 613(4) of the Criminal Code provided that an appeal court could substitute a conviction for an acquittal where the accused would have been convicted "but for the error in law" - Section 755(1) made s. 613(4) applicable to summary conviction appeals - The Ontario Court of Appeal stated, without deciding, that it was inclined to agree with the view that the words "but for the error of law" could be deleted to permit a summary conviction appeal court to substitute a conviction on an appeal on a question of fact - See paragraphs 94 to 99.

Income Tax - Topic 1001

Income from business or property - Actual receipt of income - Whether required - A real estate company earned a commission in 1978, but payment was deferred - The Ontario Court of Appeal held that the commission was an "amount receivable" under s. 12(1)(b) of the Income Tax Act and must be reported as income for 1978 - The court added that there was no legal impediment or condition precedent to payment - See paragraphs 24 to 28.

Income Tax - Topic 1015

Income from business or property - In come from property - Appropriation of property to shareholder by company - Ramos was given 25 shares at $1,000.00 each in 1978 - It should have been 25 shares at $1.00 each plus a $24,975.00 promissory note - The error was corrected in 1979 - Ramos was charged with failing to report the $25,000.00 as income in 1978 - Section 15(1)(b) of the Income Tax Act provided that only the amount or value of the property appropriated was to be included in income - The Ontario Court of Appeal agreed that only $25.00 was appropriated to Ramos in 1978 - See paragraphs 29 to 31.

Income Tax - Topic 1015

Income from business or property - Income from property - Appropriation of property to shareholder by company - Ramos was given a $75,000.00 mortgage in 1978 - The mortgage was discharged in 1979 and a new mortgage was given to Ramos' numbered company - In 1980 Ramos informed his company's accountant that the mortgage was owned by him personally - The Ontario Court of Appeal held that the mortgage was appropriated in 1980 for the purposes of s. 15(1)(b) of the Income Tax Act - Therefore Ramos should have included the $75,000.00 as income for the year 1980 - See paragraphs 33 to 42.

Income Tax - Topic 9665

Tax evasion - Evidence and proof - Where lesser amount of evaded tax proved - A taxpayer charged with failing to report income in 1978 and 1980 submitted that if the Crown proved the 1978 offence, but not the 1980 offence, the taxpayer should be acquitted because the charges were conjunctive - The Ontario Court of Appeal held that the failure to prove both offences did not preclude a conviction for one of them - The court stated that the taxpayer was properly convicted of evading payment of the lower amount and the conviction was amended to reflect the correct amount of evaded tax.

Cases Noticed:

R. v. Phillips and Phillips (1983), 48 N.R. 372; 8 C.C.C.(3d) 118 (S.C.C.), refd to. [para. 3].

Minister of National Revenue v. John Colford Contracting Co. Ltd. (1960), 60 D.T.C. 1131 (Ex. Ct.), refd to. [para. 26].

A.G. Rodgers Real Estate Ltd. v. Minister of National Revenue (1983), 84 D.T.C. 1034 (T.C.C.), refd to. [para. 26].

R. v. Hoffmann-La Roche Ltd. (Nos. 1 & 2) (1981), 62 C.C.C.(2d) 118 (Ont. C.A.), refd to. [para. 43].

R. v. Giguere et al., [1983] 2 S.C.R. 448; 50 N.R. 347, refd to. [para. 44].

R. v. McDonald (1985), 10 O.A.C. 321; 21 C.C.C.(3d) 330 (C.A.), appld. [para. 50].

R. v. R.L. (1986), 14 O.A.C. 318; 26 C.C.C.(3d) 417 (C.A.), appld. [para. 51].

Reference re Roman Catholic Separate High Schools Funding (1986), 13 O.A.C. 241; 53 O.R.(2d) 513 (C.A.), refd to. [para. 52].

Blainey v. Ontario Hockey Association (1986), 14 O.A.C. 194; 54 O.R.(2d) 513 (C.A.), refd to. [para. 52].

R. v. Smythe (1971), 3 C.C.C.(2d) 366 (S.C.C.), refd to. [para. 55].

State v. Clark (1981), 630 P. 2d 810, refd to. [para. 56].

Andrews v. Law Society of British Columbia, [1986] 4 W.W.R. 242, agreed with [para. 66].

R. v. LeGallant (1987), 54 C.R.(3d) 46 (B.C.C.A.), refd to. [para. 68].

Belgian Linguistic case (1968), 1 E. H.R.R. 252, refd to. [para. 69].

City of Klamath Falls v. Winters (1980), 619 P. 2d 217, refd to. [para. 71].

State v. Jones (1977), 569 P. 2d 19, refd to. [para. 75].

Florence Mining Co. v. Cobalt Lake Mining Co. (1909), 18 O.L.R. 275, affd. 43 O.L.R. 474, refd to. [para. 78].

Cripen v. Attorney General for Ontario (1925), 56 O.L.R. 327, affd. 56 O.L.R. 530, refd to. [para. 78].

R. v. Court of Sessions of the Peace et al., ex parte Lafleur, [1967] 3 C.C.C. 244 (Que. C.A.), refd to. [para. 78].

R. v. Morgentaler (1975), 4 N.R. 277; 20 C.C.C.(2d) 449 (S.C.C.), refd to. [para. 78].

Saikaly and The Queen, Re (1979), 48 C.C.C.(2d) 192 (Ont. C.A.), refd to. [para. 78].

Stolar v. The Queen (1983), 4 C.R.R. 252 (B.C.C.A.), refd to. [para. 78].

R. v. Taylor (1983), 8 C.R.R. 29 (B.C.S.C.), refd to. [para. 78].

Operation Dismantle v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 78].

R. v. Arviv (1985), 8 O.A.C. 92; 19 C.C.C.(3d) 395 (C.A.), refd to. [para. 78].

R. v. Kworak, Balian and Ghara Khanian (1986), 20 C.R.R. 325 (Ont. H.C.), refd to. [para. 78].

R. v. Morgentaler, Smoling and Scott (1985), 6 O.A.C. 53; 22 C.C.C.(3d) 353 (C.A.), refd to. [para. 84].

R. v. Dennis (1960), 125 C.C.C. 321 (S.C.C.), refd to. [para. 86].

R. v. Antonelli (1977), 38 C.C.C.(2d) 206 (B.C.C.A.), refd to. [para. 90].

R. v. Purves and Purves (1979), 50 C.C.C.(2d) 211 (Man. C.A.), refd to. [para. 90].

R. v. Colbeck (1978), 42 C.C.C.(2d) 117 (Ont. C.A.), refd to. [para. 90].

R. v. Gillis (1981), 45 N.S.R.(2d) 137; 86 A.P.R. 137; 60 C.C.C.(2d) 169 (C.A.), refd to. [para. 90].

R. v. Medicine Hat Greenhouses Ltd. and German (1981), 59 C.C.C.(2d) 257, refd to. [para. 90].

R. v. Jordan (1971), 2 N.S.R.(2d) 594; 1 C.C.C.(2d) 385 (C.A.), refd to. [para. 92].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, not appld. [para. 100].

R. v. Prince (1987), 70 N.R. 119; 54 C.R.(3d) 97 (S.C.C.), refd to. [para. 100].

R. v. Arnott and St. James, [1970] 5 C.C.C. 190 (Ont. C.A.), dist. [para. 104].

R. v. Paish (1979), 5 C.R.(3d) 281 (B.C.C.A.), refd to. [para. 104].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 82]; sect. 11(h) [para. 83]; sect. 15 [para. 49].

Criminal Code, R.S.C. 1970, c. C-34, sect. 613(4), sect. 748, sect. 755, sect. 771. Income Tax Act, R.S.C. 1952, c. 148, sect. 12(1)(b) [para. 24]; sect. 15(1)(b) [para. 32]; sect. 56(2) [para. 41]; sect. 239(1)(d), sect. 239(1)(f), sect. 239(1)(g), sect. 239(1)(h), sect. 239(2) [para. 47]; sect. 242 [para. 105].

Authors and Works Noticed:

Shorter Oxford Dictionary [para. 38].

Counsel:

J.A. Giffen, Q.C., for the appellants;

Robert W. Hubbard, for the Attorney General of Canada, respondent;

W.J. Blacklock, for the Attorney General of Ontario, intervenant.

This appeal was heard on November 17-19, 1986, before Martin, Houlden and Tarnopolsky, JJ.A., of the Ontario Court of Appeal. The judgment of the Court of Appeal was delivered by the court and released on February 27, 1987.