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When Can Our Rights Be Wrong?

Legal Article Guide

By: Marc Holterman

As a general principle the law does not allow something to be done indirectly, which cannot be done directly; but, this has never prevented some from trying.

A Working Arrangement

In January 1992 the Royal Canadian Mounted Police (“RCMP”) and the Department of National Revenue (“CRA”) signed a Working Arrangement (“MOU”) with two (2) stated objectives:

1. to collect taxes; and

2. to increase the effectiveness of criminal law enforcement.

For the RCMP the MOU was termed the “Tax Program” and for CRA it was called the Special Enforcement Program (“SEP”); and for both the ostensible target was “Organized Crime.”

An Offer He Couldn't Refuse

For most people “organized crime” involves the Mafia (e.g. , Don Vito Corleone sending a movie producer the severed head of his horse); or outlaw biker and street gangs; but, the MOU (Part II, §4) definitions “organized crime” to “mean one person alone, or more than one person consorting together, who participate(s) on a continuing basis in illegal activities either directly or indirectly for gain.”

Based on that language, a soccer mom who ‘speeds’ home from work twice a week (doing sixty kilometers per hour, through a fifty zone) to pick up her son, so he can get from school to his job at the car wash, could be a member of organized crime and thus, a target of a joint RCMP-CRA investigation under the MOU.

Ridiculous – maybe so; except, what’s to stop it from happening?

The True Meaning…

Congress has defined “organized crime” as, “the unlawful activities of... a highly organized, disciplined association... ”: The Organized Crime Control Act (U.S., 1970).

In 1997 Canada’s Parliament enacted Bill C-95 (in response to a violent turf war between rival outlaw biker gangs in Québec) to introduce the concepts of “criminal organization” and “criminal organization offence” into the Criminal Code of Canada (“CC”).

Forests of trees have died since to refine what is, and is not, organized crime, with nary a soccer mom to be seen.

In 1992, when the MOU was signed (revising an early version), there was either some confusion about what “organized crime” really meant; or the MOU had another, more sinister, purpose than pursuing Mafia types who didn’t pay their taxes.

The Criminal Code now defines “criminal organization” to mean “any group, however organized, composed of three or more persons in or outside Canada, that has one of its main purposes or activities the facilitation or commission of one or more indictable criminal offences that, if committed, would likely result in the direct or indirect receipt of material benefit, by the group’s member”: §467.1(1).

In other words, it would include Don Corleone and his Family, as well as, the outlaw bikers and street gangs; but, it would exclude the soccer mom.

Criminal Law Enforcement

It is the second branch the MOU’s goal, to “increase the effectiveness of criminal law enforcement”, which is of particular interest here.

The 1982 Canadian Charter of Rights and Freedoms §7 guarantees that, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Since even members of organized crime have rights, the RCMP/police may not violate them (i.e., Charter §8 “Everyone has the right to be secure against unreasonable search or seizure”) by ignoring the strictures of criminal procedure (e.g., §487 CC search warrants).

The Loophole

Conversely, for CRA can compel the production of information and documents without a warrant (§231.2(1) ITA), a prima facie violation of §8: R. v. Collins, [1987] 1 S.C.R. 265 per LAMER, J. at §22 is not held to be unreasonable because if falls within the administrative framework of the ITA: R. v. McKinlay Transport Ltd. , [1990] 1 S.C.R. 627.

All CRA needs to use these Requirement powers are: 1) a genuine and serious inquiry into a tax liability (Canadian Bank of Commerce v. A.G. Canada (1962), 35 D.L.R. (2d) 49 and 2) a named taxpayer: §232.2(2) ITA; James Richardson & Sons, Limited v. Minister of National Revenue, [1984] 1 S.C.R. 614), to ensure that they are not “fishing.”

Thus, while CRA can as a rule compel (under §238(1) ITA) productions under §231.2(1) ITA, should their audit become a criminal investigation (e.g., under §239(1) ITA) then neither the police nor CRA can obtain such information without a search warrant: §287(1) CC or §231.3(1) ITA: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; (1985) per Dickson J. at p. 160: Thomson Newspapers Ltd. v. Canada, [1990] 1 S.C.R. 425).

This dichotomy between civil functions under the ITA and criminal investigations under the CC, could potentially permit the RCMP to acquire information from CRA that they would otherwise be prohibited from acquiring directly, because of the Charter §§7 & 8.

Acting In Concert

The MOU defines its overall objective in the following language: “in order to address more effectively the accumulation of unreported illicit wealth amassed by Organized Crime and increase the effectiveness of criminal law enforcement and thus cause maximum disruption to Organized Crime, stem the infiltration of legitimate business by criminal elements, and reduce the activities of Organized Crime on society, [CRA] and the RCMP agree to act in concert with one another in combating Organized Crime through enforcement under the Income Tax Act.” [Emphasis added herein]

According to the plain language of the MOU, CRA and the RCMP are working together to, inter alia, combat organized crime through enforcement of the ITA, that is to increase the effectiveness of the RCMP’s enforcement of criminal law (since CRA has no mandate to enforce criminal law, only the ITA).

The language of the MOU states that its purpose is to “enforce [ ] the Income Tax Act” (MOU, p. 1, Part II, §3) by conducting joint RCMP-CRA investigations to “provid[e] the maximum information to the Collections Division in order to maximize the actual collection of taxes…” (Ibid., p. 3, Part III, §(d)).

Yet, other paragraphs in the MOU are worded too expansively to limit the usage to revenue collection: e.g., “tax information” means “information that is (a) obtained by or on behalf of the Minister of National Revenue for the purposes of the ITA… this would include any and all information obtained for purposes of this program…” [Emphasis added].

Tax Information

The predominant collector of information will be CRA, but the MOU says little about the usage of the information once it’s been collected. After the tax purpose of the MOU has been served what of the second branch?

Part VII of the MOU (p. 4, §ii) provides, in part, that “tax information and tax documents” will be given to the RCMP for the purpose of the program, but only in accordance with §241(1)(a) to (c) ITA; that is, no official shall knowingly provide, allow access or use of taxpayer information by any person, except as authorized by the section.

Rules of statutory construction “presume[s] that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose”: Tower v. M.N.R., [2004] 1 F.C. 183 (F.C.A.) §15.

Based on sub-§§241(1) and (2) a taxpayer could expect that indirect violations of Charter §§7 & 8 such as postulated above would be prohibited, but is that really the case?

Secondary Usage

§241(3)(a) ITA provides that notwithstanding §§241(1), (2) if the information is to used in “criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information or the preferring of an indictment, under an Act of Parliament…”, which would, of course, include the CC then there will be no violation of §241 ITA.

Conversely, the MOU (p. 4, Part VII, §(iv)) expressly provides that RCMP information and documents are not to be disclosed outside SEP, without their consent. Evidently the MOU could have extended this protection to taxpayer information, but it could not do so and still fulfill its role as providing indirect information gathering services for the RCMP.

The MOU appears to protect the confidentiality of taxpayer information when, in reality, it does nothing of the sort.

Charter Protections

The Courts use a contextual approach in balancing §7 rights which have been allegedly infringed: R. v. White, [1999] 2 S.C.R. 417.

In R. v. Jarvis, [2002] 3 S.C.R. 757 Iacobucci and Major, JJ. at §96, the Supreme Court of Canada held that, “…with respect to s. 7 of the Charter, when the predominant purpose of a question or inquiry is the determination of penal liability, the ‘full panoply’ of Charter rights are engaged for the taxpayer's protection. There are a number of consequences that flow from this. First, no further statements may be compelled from the taxpayer by way of s. 231.1(1)(d) for the purpose of advancing the criminal investigation. Likewise, no written documents may be inspected or examined, except by way of judicial warrant under s. 231.3 of the ITA or s. 487 of the Criminal Code, and no documents may be required, from the taxpayer or any third party for the purpose of advancing the criminal investigation. CCRA officials conducting inquiries, the predominant purpose of which is the determination of penal liability, do not have the benefit of the ss. 231.1(1) and 231.2(1) requirement powers.”

The RCMP could therefore use the civil administrative procedures of the ITA to indirectly collect information, for subsequent use in a criminal prosecution under the CC. Whether the RCMP has used their MOU with CRA to circumvent the §§7 & 8 of the Charter in this manner is unknown.

Since the release of Jarvis, above, the MOU retains no pretence of legality. The secondary branch of the MOU’s has as its predominant purpose an objective designed to circumvent Charter rights.

While it is the official position of the Director of Operations (CRA Investigations) that SEP does not do criminal investigations, the evidence does not support his viewpoint. SEP obtains files in cases where there is alleged, suspected, or confirmed criminal activity.

Moral Of The Story

There is a legal maxim that says, “Justice must not only be done but also be seen to be done.” Since the MOU could serve an illicit purpose, contrary to the Charter, it ought to be withdrawn and the SEP units inside CRA, which owe their existence to it, ought to be disbanded.

Staff Writer
For Tax Evasion Resources
http://www.taxevasionresources.com

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