R. v. Ducharme (S.) et al., (1999) 182 Sask.R. 138 (QB)

• Judge: Laing, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 30, 1999
• Jurisdiction: Saskatchewan
• Citations: (1999), 182 Sask.R. 138 (QB)

R. v. Ducharme (S.) (1999), 182 Sask.R. 138 (QB)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. AU.040

Shirley Ducharme and Maymont Highway Sales Service Ltd. (appellants) v. Her Majesty the Queen (respondent)

(1998 Q.B.C.A. No. 51)

Brian Ducharme, Shirley Ducharme and Ducharme Enterprises Ltd. (appellants) v. Her Majesty the Queen (respondent)

(1998 Q.B.C.A. No. 52)

Indexed As: R. v. Ducharme (S.) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Laing, J.

July 30, 1999.

Summary:

Two directors of a corporation and the corporation were convicted on 11 counts as a result of the corporation's failures to file Goods and Services Tax returns as required by s. 282 of the Excise Tax Act contrary to s. 326 of the Act. One of the directors, as the sole director of a second corporation was convicted of six further counts of the same offence. The second corporation was con­victed of eight counts. The minimum fine of $1,000 was imposed on each count. The directors and the corporations appealed. The following issues were raised: (1) the admis­sibility of affidavits of noncompliance with a demand sworn before a commissioner for affidavits in Prince Edward Island; (2) the sentences; and (3) the conviction of one of the directors with respect to the first corpo­ration.

The Saskatchewan Court of Queen's Bench (1) held that the affidavits were admissible; (2) affirmed the sentences; and (3) set aside the conviction.

Evidence - Topic 23

General and definitions - Canada Evidence Act - Application of - Directors and two corporations (the accused) appealed their conviction arising out of the corporations' failures to file Goods and Services Tax returns (Excise Tax Act, ss. 282 and 326) - The accused asserted that the trial judge wrongly admitted affidavits of noncom­pliance with a demand for a tax return - The accused asserted the Prince Edward Island commissioner for oaths who swore the affidavits was not one of the persons listed in s. 51(1) of the Saskatchewan Evidence Act as being entitled to adminis­ter oaths outside the province respecting affidavits intended for use inside the prov­ince - The Saskatchewan Court of Queen's Bench affirmed that the affidavits were admissible - The affidavits were admis­sible under s. 335(3) of the Excise Act and s. 40 of the Canada Evidence Act, which in­corporated provincial laws of evidence by reference, "was subject to ... other Acts of Parliament" - See paragraphs 7 to 14.

Practice - Topic 3604

Evidence - Affidavits - General - Who may make - [See Evidence - Topic 23 ].

Sales and Service Taxes - Topic 5404

Goods and Services Tax - Offences and penalties - Failure to comply with a demand for returns - [See Evidence - Topic 23 ].

Sales and Service Taxes - Topic 5404

Goods and Services Tax - Offences and penalties - Failure to comply with a demand for returns - A director of a cor­poration was convicted of 11 counts as a result of the corporation's failures to file Goods and Services Tax returns as required by s. 282 of the Excise Tax Act contrary to s. 326 of the Act - The direc­tor appealed - The Saskatchewan Court of Queen's Bench set aside the convictions where there was no evidence that the direc­tor had received a notice of demand for a Goods and Services Tax return and no other evidence respecting her involve­ment - See paragraphs 15 to 21.

Sales and Service Taxes - Topic 5404

Goods and Services Tax - Offences and penalties - Failure to comply with a demand for returns - Corporate directors and two corporations were each convicted on multiple counts as a result of the cor­porations' failures to file Goods and Ser­vices Tax returns as required by s. 282 of the Excise Tax Act contrary to s. 326 of the Act - The minimum fine under s. 326(1) of $1,000 was imposed on each count - The directors and corporations appealed, asserting that s. 326(1) should be interpreted to read no less than $1,000 per failure to file a return and, if a director or officer was also convicted, the $1,000 minimum for each count should be appor­tioned between the parties - The Saskatchewan Court of Queen's Bench rejected the assertion and dismissed the appeal - See paragraphs 22 to 28.

Cases Noticed:

R. v. Nickerson (C.A.) (1991), 106 N.S.R.(2d) 300; 288 A.P.R. 300 (C.A.), appld. [para. 12].

R. v. Albright, [1987] 2 S.C.R. 283; 79 N.R. 129, refd to. [para. 12].

R. v. Chilton Insurance Consulting Inc. and Chilton (1995), 138 Sask.R. 308 (Q.B.), refd to. [para. 16].

R. v. Rasmussen and Saskatoon Salvage Co. (1985) Ltd. (1995), 130 Sask.R. 308 (Prov. Ct.), refd to. [para. 16].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 40 [para. 10].

Excise Tax Act, R.S.C. 1985, c. E-15, sect. 326(1) [para. 26]; sect. 335(3) [para. 12].

Saskatchewan Evidence Act, R.S.S. 1978, c. S-16, sect. 51(1) [para. 9].

Counsel:

Ron Dumonceaux and Evatt Merchant, for the appellants;

Barrie Miller, for the Crown.

This appeal was heard by Laing, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on July 30, 1999.