R. v. Moman (R.), 2011 MBCA 34

• Judge: Monnin, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 24, 2011
• Jurisdiction: Manitoba
• Citations: 2011 MBCA 34;(2011), 268 Man.R.(2d) 10 (CA)

R. v. Moman (R.) (2011), 268 Man.R.(2d) 10 (CA);

      520 W.A.C. 10

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. MY.002

Her Majesty The Queen (respondent/applicant) v. Robert Moman (accused/appellant/respondent)

(AR 10-30-07421; 2011 MBCA 34)

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

Manitoba Court of Appeal

Monnin, J.A.

April 13, 2011.

Summary:

In 2003, Tarwid, P.C.J., convicted Moman of five counts of failing to file income tax returns and sentenced him accordingly. Moman was charged with making false statements on his income tax returns, understating his income and not remitting G.S.T. Tarwid, P.C.J., was assigned as the trial judge. Moman sought her recusal. Tarwid, P.C.J., denied the motion. The trial proceeded. Moman sought an order of prohibition to preclude Tarwid, P.C.J., from hearing any further evidence.

The Manitoba Court of Queen's Bench, in a decision reported at (2008), 234 Man.R.(2d) 149, denied the motion. Moman was convicted of tax evasion and of failing to remit GST and was sentenced accordingly. Moman appealed from both the convictions and the sentence.

The Manitoba Court of Queen's Bench, in a decision reported at (2010), 256 Man.R.(2d) 53, allowed the appeal from the convictions and ordered a new trial before a different trial judge. The Crown sought leave to appeal.

The Manitoba Court of Appeal, per Monnin, J.A., denied the motion.

Criminal Law - Topic 7602

Summary conviction proceedings - Appeal to a court of appeal - Requirement of leave - Moman was charged with filing deceptive returns, tax evasion and failing to remit GST - Records seized during the investigation, together with calculations made by Canada Revenue Agency employees, were filed as exhibits - At trial, an investigator testified as to calculations undertaken by her to determine Moman's income - She testified that, although she had done the revenue calculations, an auditor had determined expense calculations - The trial judge admitted the auditor's expense calculations as business documents and convicted Moman - The summary conviction appeal judge allowed Moman's appeal on the basis that admitting the auditor's calculations as a business record was an error in law - Section 30(10)(a) of the Canada Evidence Act specifically excluded a record made in the course of an investigation from being admissible in evidence as a business record - A new trial was ordered - The Crown sought leave to appeal, asserting, inter alia, that the appeal judge had erred in law in interpreting the offences as requiring the Crown to prove Moman's expenses - The Manitoba Court of Appeal, per Monnin, J.A., denied the motion - In order to obtain leave to appeal from a summary conviction appeal, there had to be an arguable error of law in the decision under review which was that of the summary conviction appeal court, not of the trial court - The appeal judge's decision could not be read as requiring that expenses be proven - The crux of the decision was that the Crown's trial strategy had made expenses an issue and the trial judge had improperly relied on inadmissible evidence to reach her decision on that issue - While the ground of appeal raised a question of law, it was not one that was arguable on the basis of the appeal judge's decision - See paragraphs 17 to 27.

Criminal Law - Topic 7607

Summary conviction proceedings - Appeal to a court of appeal - When available - General - [See Criminal Law - Topic 7602 ].

Evidence - Topic 1581

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Exceptions to admission - Moman was charged with filing deceptive returns, tax evasion and failing to remit GST - Records seized during the investigation, together with calculations made by Canada Revenue Agency employees, were filed as exhibits - At trial, an investigator testified as to calculations undertaken by her to determine Moman's income - She testified that, although she had done the revenue calculations, an auditor had determined expense calculations - The trial judge admitted the auditor's expense calculations as business documents and convicted Moman - The summary conviction appeal judge allowed Moman's appeal on the basis that admitting the auditor's calculations as a business record was an error in law - Section 30(10)(a) of the Canada Evidence Act (CEA) specifically excluded a record made in an investigation from being admissible as a business record - A new trial was ordered - The Crown sought leave to appeal, asserting, inter alia, that the appeal judge had erred in concluding that the reference to business records in the trial judge's reasons was a reference to s. 30 of the CEA - The Crown asserted that the calculations were either admissible in their own right or as business records under the common law exception to the hearsay rule - The Manitoba Court of Appeal, per Monnin, J.A., denied the motion - The trial judge's reference to business records was unclear - If it was a reference to the CEA, then the trial judge had erred - If it was a reference to a business record under the common law exception, the calculations might have been admissible after an assessment of their necessity and reliability - That was not undertaken - The Crown had not demonstrated an arguable case that the appeal judge had erred in concluding that the reference was to a business record as contemplated by the CEA and that the evidence was inadmissible under the CEA - See paragraphs 28 to 34.

Income Tax - Topic 9361

Enforcement - Evidence and proof - General - [See Evidence - Topic 1581 ].

Income Tax - Topic 9661

Tax evasion and tax avoidance - Evidence and proof - General - [See Evidence - Topic 1581 ].

Cases Noticed:

R. v. Oliver (B.), [2011] Man.R.(2d) Uned. 6; 2011 MBCA 12, refd to. [para. 14].

R. v. Denys (C.D.) (2009), 240 Man.R.(2d) 13; 456 W.A.C. 13; 2009 MBCA 39, refd to. [para. 14].

R. v. McCorriston (G.J.) (2010), 251 Man.R.(2d) 106; 478 W.A.C. 106; 2010 MBCA 3, refd to. [para. 14].

R. v. Langlois (D.J.) (2008), 228 Man.R.(2d) 256; 427 W.A.C. 256; 2008 MBCA 72, refd to. [para. 15].

R. v. R.R. (2008), 238 O.A.C. 242; 234 C.C.C.(3d) 463; 2008 ONCA 497, refd to. [para. 16].

R. v. Scheel (1979), 42 C.C.C.(2d) 31 (Ont. C.A.), refd to. [para. 30].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 33].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 33].

Counsel:

C.J. Mainella and O.A. Siddiqui, for the applicant;

J.C. Prober and H.A. Khan, for the respondent.

This motion was heard in Chambers on March 24, 2011, by Monnin, J.A., of the Manitoba Court of Appeal, who delivered the following decision on April 13, 2011.