R. v. Tardif Date:, 2017 BCPC 262

Citation: R. v. Tardif Date: 20170906 2017 BCPC 262 File No: 205341-3-BC Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. WAYNE PATRICK TARDIF RULING ON APPLICATION OF THE HONOURABLE JUDGE G.S. GILL Counsel for the Crown: T. Spasojevic Counsel for the Defendant: M. Magaril Place of Hearing: Surrey , B.C. Date of Hearing: July 21, 2017 Date of Judgment: September 6, 2017

[1] The accused, Wayne Patrick Tardif, makes an application for an order pursuant to

section 601 of the Criminal Code quashingInformation No. 205341-3-BC.

That information provides as follows: Wayne Patrick Tardif, on or about December 14, 2015, at or near the City of Surrey, in the Province of British Columbia, did unlawfullyfail to comply with a compliance order, made pursuant to section 238(2) of the Income Tax Act, by the Honourable Judge Arthur-Leungof the Provincial Court of British Columbia on June 11, 2015, on Information 205341-1 in that he failed to file individual income taxreturns on form T1 for the taxation years 2007, 2008, 2009, 2010, 2011, 2012, and 2013, and did thereby commit an offence contrary tosection 238(1) of the Income Tax Act. [2] The Information sought to be quashed replaced Information No. 205341-2-B, which charged in a separate count the failure tocomply for each of the 7 relevant taxation years, thereby making for a total of 7 counts.

Given that each count is identically framed, Iwill reproduce only the first count, in respect of the 2007 taxation year: Wayne Patrick Tardif, on or about December 14, 2015, at or near the City of Surrey, in the Province of British Colombia, did unlawfullyfail to comply with a compliance order issued on June 11, 2015 pursuant to section 238(2) of the Income Tax Act, in that he failed to file acompleted individual income tax return on form T1 for the taxation year 2007, including a statement of income and expenses for eachbusiness activity carried on during the year, as required pursuant to the provisions of

section 231.2(1) of the Income Tax Act, by thedeadline specified in the order and did thereby commit an offence contrary to section 238(1) of the Income Tax Act. [3] The accused contends that the new Information rolling up the 7 counts into one offends the "single transaction rule” prescribedby

section 581 of the Criminal Code and should be quashed as a nullity pursuant to s. 601(1). Legislative Provisions [4] Section 601(1) of the Criminal Code provides as follows: An objection to an indictment preferred under this part or to a count in an indictment, for a defect apparent on its face, shall be taken bymotion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of thecourt before which the proceedings take place. The court before which an objection is taken under this

section may, if it considersnecessary, order the indictment or count to be amended to cure the defect. [5] Section 581(1) provides as follows: Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused ordefendant committed an offence therein specified. [6] The accused submits that the new, single count Information incorporates different elements as compared to the previousInformation, takes away his right to object to those changes that would otherwise occur by Crown seeking to amend, impedes his abilityto plead guilty only in respect of some of the taxation years as opposed to all of them, and is prejudicial to his ability to present differentdefences for each of the relevant taxation years.

The Law [7] The single transaction rule has been canvassed in a number of authorities. [8] In R. v. P.E.L., 2017 B.C.J. No. 174, the court held that an indictment alleging more than one instance of historical sexualassault in a single count did not violate the single transaction rule despite the theoretical evidentiary advantage the accused might havebenefited from had the instances been framed in separate counts. The court noted at para. 43 that no objection was taken during trial thatthe admission of any such evidence was actually prejudicial to the accused. [9] The court, at para. 44 citing R. v.

Hulan, (ON CA), [1970] 1 C.C.C. 36 (Ont. C.A.), interpreted s. 581(1) to bea rule of general application that may not necessarily apply in all cases. At para. 45, the court noted Hulan to have been adopted in R. v.G.L.M., 1999 BCCA 467, quoting from Ryan J.A. in that decision as follows: A "single transaction" may validly encompass a number of occurrences, each in themselves capable of constituting an offence, where theacts relate to a similar activity or involve a similar course of conduct.

Thus, an indictment will not necessarily offend the singletransaction rule even where it spans a lengthy period of time and involves a number of separate incidents in a variety of locations. [10] In R. v. Sharpe, [2007] B.C.J.

No. 626, a conviction on a single count alleging indecent assault against a single complainant butspanning two different time periods, one when he was under the age of 14 and the other when he was over, was set aside; not on the basisthat it offended the single transaction rule but rather, that it contained different elements of proof for each such time period, one requiringthe Crown to prove lack of consent, and the other not, thereby setting out two offences.

At para. 26 the Court wrote: I do not agree with the appellant that this count runs afoul of the single transaction rule, as the circumstances of these offences do notamount to separate transactions. The single transaction requirement is to be applied flexibly and is not necessarily contravened because acount spans lengthy periods of time or involves separate incidents: R. v. Hulan, (ON CA), [1970] 1 C.C.C. 36 (Ont.C.A.); R. v. G.L.M., supra at para. 11.

If anything, the defect in this count is better characterized as violating the rule against duplicity inthat for practical purposes, the Crown was required to make out two substantively different offences. That is to say, because the countcovered the time during which C.M. turned 14 years old, the count lacked precision and suggested two substantive offences. [11] At para. 33 of Sharpe, the court in further quoting R. v. G.L.M. noted the importance of keeping separate the concept of"essential ingredients" from the facts which prove them:

Essential elements, or ingredients of an offence are found in the statute which defines the offence. Essential ingredients must be provedbeyond a reasonable doubt. In reaching the ultimate conclusion with respect to an ingredient jurors may take different routes toconviction and need not rely on the same facts. [12] The Court summarized at para. 35: The principle that emerges from these cases is, first and foremost, that the jury must unanimously agree that the Crown has made out theessential elements or ingredients of the offence.

The corollary is that the count must be framed so that there is a single set of elementsupon which the jury can be unanimous. [13] In Lilly and The Queen, (SCC), [1983] 1 S.C.R. 794, a conviction on a single count alleging multipleinstances of theft of trust monies was set aside where the accused advanced the defence of colour of right in respect of some but not all ofthe trust transfers. The Supreme Court found the trial judge misdirected the jury on the defence of colour of right.

Because the case washeard by a jury, it was impossible to know which transactions the guilty verdict was founded upon and in particular, whether any of theminvolved the available defence upon which the trial judge had misdirected. [14] Other cases referenced by the parties addressed principles, facts and issues not applicable to the present application or otherwisenot in dispute. As such, I have not reviewed those in these reasons. Analysis [15] The accused maintains that every taxation year that the order in question was allegedly not complied with can constitute aseparate offence.

While that may be true, it does not, however, settle the issue. Just because multiple instances of an offence can becharged separately, does not necessarily mean that they must. [16] The accused also notes he may have different defences regarding different taxation years and that combining all of the yearsinto one count will prejudice his ability to present them. The Crown contends there is only one defence realistically available to him,namely that of due diligence.

Regardless, I conclude there to be nothing in the framing of multiple taxation years into a single count thatwould preclude the accused from presenting any defence or defences applicable to some, but not all of the taxation years charged, orfrom presenting different defences for different years. [17] The accused did not specifically identify which defences may arise in a way that could become problematic.

While he is notrequired to do so, I would only add that any such issues that actually do arise in the course of the trial would be expected to be brought tothe attention of the trial judge in order that any prejudice to the accused actually identified might then be addressed in a contextual asopposed to a theoretical basis. [18] Further, any potential agreement with Crown to accept a plea of guilty in respect of only some of the taxation years in questionwould not be hampered as suggested by the accused.

There could be a consent amendment deleting the years not applicable to the guiltyplea or, at the very least, the sentencing submissions could make clear which year or years the plea involved. In any event, there wouldbe no confusion in what was intended. [19] The accused contends the new single count consolidating each of the taxation years in question contains different elements ofthe offence as compared to the previous multi-count Information. I am not sure what, if anything turns on that argument. The Crowndecides how to frame any charge and the elements then flow from that.

There is no rule I am aware of, or that was cited to me, thatwould preclude the Crown from replacing a count with one differently framed at this stage of the proceedings. [20] A plain reading of the new rolled up count alleges non-compliance with the Order of the Honourable Judge Arthur-Leung. Foreach of the relevant years in question, the breach of the order is alleged to have occurred on a common date, being December 14, 2015. Here it is important to distinguish the actual offence is not, per se, the failure to file tax returns, but rather the non-compliance with theOrder.

The failure to file the returns in any one or more years is the alleged factual basis of the charged offence. [21] As noted in para. 27 of Sharpe, supra, having multiple possible factual pathways to a conviction is not of itself a contraventionof section 581(1), as long as the elements of the offence for each of the pathways are the same.

There is no suggestion in the presentcase that the elements the Crown must prove differ from any one taxation year to the next. [22] I would note in respect of the requirements of s. 601(1), the Information, as drawn, is neither lacking in detail nor is it sooverbroad as to deprive the accused of knowledge of the case he must meet. [23] While accepting that non-compliance with the order in respect of any single taxation year could constitute a separate offence, Iam of the view that this does not in and of itself contravene the single transaction rule set out in section 581(1) of the Criminal Codehaving regard to the facts of this case and applying the principles in the cases above cited.

Any potential prejudice is at this pointunproven. [24] The application is dismissed. The Honourable Judge G.S. Gill Provincial Court of British Columbia