R. v. Michaud (R.), (2012) 397 N.B.R.(2d) 219 (CA)

• Judge: Richard, Bell and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 20, 2012
• Jurisdiction: New Brunswick
• Citations: (2012), 397 N.B.R.(2d) 219 (CA);2012 NBCA 77

R. v. Michaud (R.) (2012), 397 N.B.R.(2d) 219 (CA);

    397 R.N.-B.(2e) 219; 1028 A.P.R. 219

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.B.R.(2d) TBEd. DE.003

Renvoi temp.: [2012] N.B.R.(2d) TBEd. DE.003

Rosaire Michaud (appellant) v. Her Majesty the Queen (respondent)

(106-11-CA; 2012 NBCA 77)

Indexed As: R. v. Michaud (R.)

Répertorié: R. v. Michaud (R.)

New Brunswick Court of Appeal

Richard, Bell and Quigg, JJ.A.

November 29, 2012.

Summary:

Résumé:

Michaud was charged with multiple counts alleging offences under s. 6.1 of the Tax Rebate Discounting Act (Can.) and s. 239(1.1)(a) of the Income Tax Act (Can.).

The New Brunswick Provincial Court, in a decision reported at 2011 NBCP 18, convicted him of four out of 126 counts under the former legislation and 134 out of 148 counts under the latter. He was given a conditional sentence of two years less a day in addition to fines totalling $391,704.49. Michaud appealed the convictions on several grounds. On September 6, 2011, a judge of the Court of Appeal directed that the appeal first proceed with the hearing of two of these grounds because they could be considered without the parties incurring the expense of a full transcript of the trial proceedings. These two grounds concerned the trial judge's consideration of similar fact evidence.

The New Brunswick Court of Appeal allowed the appeal in part. The convictions under s. 239(1.1)(a) of the Income Tax Act were quashed and verdicts of acquittal were entered. The appeal was dismissed respecting the convictions under s. 6.1 of the Tax Rebate Discounting Act.

Courts - Topic 560

Judges - Powers - Authority to act ex mero (on own motion) - The accused was charged with, inter alia, 148 counts alleging offences under s. 239(1.1)(a) of the Income Tax Act - It was alleged that he had filed false income tax returns on the basis of false information for clients of his tax discounting business - The trial judge reserved decision - The trial judge wrote the parties and raised concerns about the similar fact evidence rule - It had not been mentioned during the trial or in argument - The parties filed written submissions and made oral arguments on the issue - Michaud argued, inter alia, that the court could not "on its own motion" raise the question of similar fact evidence and where, as here, the matter was not raised at trial, it should not even be considered - The trial judge concluded that the criteria for the admissibility of similar fact evidence had been met - He inferred that Michaud had been aware from the outset the prosecution was seeking to have the evidence of all counts considered in support of each, and concluded that no procedural unfairness ensued from the prosecution's failure to make a formal request for the admissibility of similar fact evidence - Michaud was convicted of 134 counts - He appealed - The New Brunswick Court of Appeal stated that it was not persuaded that a judge who raised a question of law after arguments had been made but before decision was rendered thereby entered the fray and demonstrated partiality - The trial judge noted he had not been formally asked to consider similar fact evidence, and invited counsel to address the question whether he could nevertheless do so - This was a question of law - Both parties received proper notice and were afforded an opportunity to file written submissions and make oral arguments - The characterization of how the similar fact issue came to be argued as going to the partiality of the judge or to the fairness of the trial was "preposterous" - See paragraphs 18 to 23.

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - [See Courts - Topic 560 ].

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial hearings - [See Courts - Topic 560 ].

Criminal Law - Topic 5212

Evidence and witnesses - Admissibility and relevance - Similar acts - General (incl. procedure) - Michaud was convicted of numerous Income Tax Act offences - One issue in his appeal was whether the admissibility of similar fact evidence was predicated upon proper notice of intention being given before an accused embarked on his defence - The New Brunswick Court of Appeal reviewed the rationale for requiring timely notice and adjudication of the similar fact issue - The court stated that timely notice and adjudication before an accused embarked on a defence was the norm - However, the court concluded that there was no strict procedural requirement for notice that would lead to the automatic exclusion of the evidence - The court could not rationalize an inflexible rule of law that would automatically exclude such evidence for the mere failure of the prosecution to follow the usual procedure - However, where timely notice was not given and where adjudication of a similar fact issue was not sought until after an accused embarked on his/her defence, similar fact evidence should not be admitted where it was shown that the lack of notice, or the late adjudication of the issue, had occasioned prejudice to the defence and resulted in an unfair trial - If there was no prejudice, there was no unfairness - But, if there was prejudice, the evidence should be rejected or, if the evidence had already been admitted, it should not be considered across all counts of an indictment - See paragraphs 33 to 47.

Criminal Law - Topic 5212

Evidence and witnesses - Admissibility and relevance - Similar acts - General (incl. procedure) - The accused was charged with, inter alia, 148 counts alleging offences under s. 239(1.1)(a) of the Income Tax Act - It was alleged that he had filed false income tax returns on the basis of false information for clients of his tax discounting business - The trial judge reserved decision - The trial judge wrote the parties and raised concerns about the similar fact evidence rule - It had not been mentioned during the trial or in argument - The parties made written and oral submissions - The trial judge concluded that the criteria for the admissibility of similar fact evidence had been met and that Michaud was not prejudiced - Michaud was convicted of 134 counts - The trial judge held that, but for his ruling on the similar fact evidence and his consequential consideration of the evidence across all counts, he would have acquitted the accused - The New Brunswick Court of Appeal allowed the accused's appeal, quashed the convictions and acquitted Michaud - The late admission of the evidence as similar fact evidence prejudiced the defence and resulted in an unfair trial - Nothing during trial alerted the defence that the similar fact rule would be raised - When Michaud testified, the trial judge requested the defence not go through each of the almost 2,300 transactions he had done in the time frame in question, but that he rather lump many of those together - Since no one was suggesting that all evidence would be considered across all counts, the defence acquiesced - Its presentation of the evidence had clearly been designed to answer only the case that was presented by the prosecution, which was evidence relating to each individual count, and not one where the evidence would be considered across all counts - If a judge was going to infer wilful blindness from similarities in a series of transactions, the defence should be given every opportunity to place the transactions in full context - There was prejudice to the defence - See paragraphs 48 to 52.

Criminal Law - Topic 5212

Evidence and witnesses - Admissibility and relevance - Similar acts - General (incl. procedure) - [See Courts - Topic 560 ].

Criminal Law - Topic 5214

Evidence and witnesses - Admissibility and relevance - Similar acts - Where indictment included several counts - [See second Courts - Topic 5212 ].

Criminal Law - Topic 5214.2

Evidence and witnesses - Admissibility and relevance - Similar acts - To prove intention - [See Courts - Topic 560 and second Courts - Topic 5212 ].

Evidence - Topic 1251

Relevant facts - Relevance and materiality - Similar acts - General - [See Courts - Topic 560 and first and second Courts - Topic 5212 ].

Evidence - Topic 1255

Relevant facts - Relevance and materiality - Similar acts - To prove intent or guilty knowledge - [See Courts - Topic 560 and second Courts - Topic 5212 ].

Droit criminel - Cote 5212

Preuve et témoins - Admissibilité et pertinence - Actes similaires - Généralités (y compris procédure) - [Voir Criminal Law - Topic 5212 ].

Droit criminel - Cote 5214

Preuve et témoins - Admissibilité et pertinence - Actes similaires lorsque l'acte d'accusation comprend plusieurs chefs d'accusation - [Voir Criminal Law - Topic 5214 ].

Droit criminel - Cote 5214.2

Preuve et témoins - Admissibilité et pertinence - Actes similaires - Pour prouver l'intention - [Voir Criminal Law - Topic 5214.2 ].

Preuve - Cote 1251

Faits pertinents - Pertinence et caractère déterminant - Actes similaires - Généralités - [Voir Evidence - Topic 1251 ].

Preuve - Cote 1255

Faits pertinents - Pertinence et caractère déterminant - Actes similaires - Pour prouver l'intention ou la connaissance coupable - [Voir Evidence - Topic 1255 ].

Tribunaux - Cote 560

Juges - Pouvoirs - Autorité d'agir de leur propre initiative - [Voir Courts - Topic 560 ].

Tribunaux - Cote 590

Juges - Obligations - Obligation de paraître juste et impartial - [Voir Courts - Topic 590 ].

Tribunaux - Cote 592

Juges - Devoirs - Tenir des audiences équitables et impartiales - [Voir Courts - Topic 592 ].

Cases Noticed:

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 6].

R. v. Cote (J.J.) (2003), 257 N.B.R.(2d) 194; 674 A.P.R. 194; 2003 NBCA 38, refd to. [para. 8].

R. v. Stymiest (A.R.J.) et al. (2005), 297 N.B.R.(2d) 137; 771 A.P.R. 137; 2005 NBQB 445, refd to. [para. 8].

R. v. Paquet (R.) et al. (1999), 219 N.B.R.(2d) 130; 561 A.P.R. 130 (C.A.), refd to. [para. 9].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 12].

R. v. Shumka, [1985] B.C.J. No. 675 (Co. Ct.), refd to. [para. 20].

R. v. Park (S.J.) (2009), 465 A.R. 20; 2009 ABQB 470, refd to. [para. 21].

R. v. F.Y. (2011), 378 N.B.R.(2d) 37; 973 A.P.R. 37; 2011 NBCA 86, refd to. [para. 22].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 26].

R. v. E.J., [2011] O.T.C. Uned. 195; 2011 ONSC 195, refd to. [para. 28].

R. v. Dubé (M.) (2011), 379 N.B.R.(2d) 275; 978 A.P.R. 275; 2011 NBPC 30, refd to. [para. 34].

R. v. Last (G.E.), [2009] 3 S.C.R. 146; 394 N.R. 78; 255 O.A.C. 334; 2009 SCC 45, refd to. [para. 35].

R. v. Charbonneau, 2005 QCCA 1054, refd to. [para. 37].

R. v. Kirk (A.G.) (2004), 189 O.A.C. 314 (C.A.), refd to. [para. 38].

R. v. McNamara et al. (No. 1) - see R. v. Canadian Dredge & Dock Co. et al.

R. v. Canadian Dredge & Dock Co. et al., [1981] O.J. No. 3254 (C.A.), affd. [1985] 1 S.C.R. 662; 59 N.R. 241; 9 O.A.C. 321, refd to. [para. 38].

R. v. Shead (R.G.S.) (1996), 114 Man.R.(2d) 42 (Q.B.), refd to. [para. 38].

R. v. Wuckert (J.D.) (1999), 137 Man.R.(2d) 1 (Q.B.), varied (2000), 145 Man.R.(2d) 181; 218 W.A.C. 181 (C.A.), refd to. [para. 38].

R. v. deKock (C.R.) (2009), 454 A.R. 102; 455 W.A.C. 102; 2009 ABCA 225, refd to. [para. 38].

R. v. Powell (G.) (2010), 258 O.A.C. 247; 2010 ONCA 105, refd to. [para. 39].

R. v. Poonai (V.R.), [2006] O.T.C. 1520 (Sup. Ct.), refd to. [para. 40].

R. v. Winter (C.) (2008), 276 Nfld. & P.E.I.R. 1; 846 A.P.R. 1 (N.L. Prov. Ct.), refd to. [para. 40].

R. v. T.B.L. (2003), 173 O.A.C. 159 (C.A.), refd to. [para. 41].

Authors and Works Noticed:

Gibson, John L., Criminal Law Evidence, Practice and Procedure (1988) (Looseleaf), p. 56A-3 [para. 33].

Watt, David, Manual of Criminal Evidence (2011), pp. 527, 528 [para. 33].

Counsel:

Avocats:

Christian Michaud and Dale Briggs, for the appellant;

Norman J. Bossé, Q.C., for the respondent.

This appeal was heard on March 20, 2012, by Richard, Bell and Quigg, JJ.A., of the New Brunswick Court of Appeal. On November 29, 2012, Richard, J.A., rendered the following judgment for the court in both official languages.