R. v. Merrill, 2020 BCPC 150

Citation: R. v. Merrill 2020 BCPC 150 Date: 20200807 File No: 91448-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Income Tax Act and Criminal Code of Canada REGINA v. Steven James Merrill REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: Francois LePine Appearing on his own behalf: Steven James Merrill Place of Hearing: Kelowna , B.C. Date of Hearing: July 13 & Aug 4, 2020 Date of Judgment: Aug 7, 2020 I. Introduction [ 1 ] Mr.

Merrill is charged with four counts under the Income Tax Act for failing to comply with Notices of Requirement to file his T1 Income Tax Returns by 1 May 2019 for tax years 2014, 2015, 2016 and 2017. Mr. Merrill is self-represented. He believes he is not a “person” within the definition of the Income Tax Act and that he is wrongly charged.

II. Issues [ 2 ] Mr.

Merrill argues the following issues: Notice of Requirement Issues: 1) The collections officer for Canada Revenue Agency had no authority to serve the Notices of Requirement; 2) The service of the Notices of Requirement was not valid; 3) The Notices of Requirement were served on the wrong person; 4) The Notices of Requirement were not a legally binding demand, but rather, a contract offer which he could decline if his precedent conditions of acceptance were not met; Court Process Issues 5) The Information was defective in form and thus not valid; 6) The service of the Summons was not valid; 7) The Provincial Court had no jurisdiction to hear the matter; Fairness Issues: 8) The Canada Revenue Agency conspired against him unfairly; 9) The Crown conspired against him unfairly, given the Crown failed to withdraw the charges after Mr.

Merrill’s belated filing of the tax returns; 10) The court intimidated him and did not allow him to make full answer and defence. III. Analysis Notices of Requirement Issues [ 3 ] Christopher Pagett, as a collections officer for Canada Revenue Agency, personally served Steven James Merrill on January 30, 2019 with Notices of Requirement to file his T1 Income Tax Returns by 1 May 2019 for tax years 2014, 2015, 2016 and 2017. Mr. Merrill wrongly believed that if he did not accept the documents, then he was not served. This was a mistake of law by Mr.

Merrill and s. 19 of the Criminal Code clarifies that no such mistake of law is a defence. Ultimately Mr. Pagett, after speaking with Mr. Merrill and leaving the documents at the feet of Mr. Merrill, deemed him served. I find that when Mr. Merrill refused to pick up the documents that were before him, he was properly served. [ 4 ] Mr. Merrill also claimed the service was invalid because it was served upon “Steven James Merrill” and Mr.

Merrill again wrongly believed that it had to be served on a person named “STEVE MERRILL” because this is the name Bob Hamilton, Commissioner of the Canada Revenue Agency used when he once wrote to Mr. Merrill years earlier. Mr. Pagett testified that Canada Revenue Agency uses social insurance numbers (“SIN”) and the name under which that SIN is registered, when formally serving a tax payer. The social insurance number of [omitted for posting] is in the name of Steven James Merrill, and is the name Mr. Pagett used in the Notices of Requirement. The fact that Mr.

Merrill identified himself to others and to the court as “Steven James Merrill, Sui Juris, for STEVE MERRILL Acct [omitted for publication]”, in no way creates any defence to these charges. Such “straw man” logic defies any rational response, as was found in R. v. Lindsay, 2011 BCCA 99 at para.27 leave refused [2011] S.C.C.A. No 265. [ 5 ] Furthermore, I reject the twisted definition of “individual” used by Mr. Merrill, where he advances that only a corporation and not an individual person has an obligation under the Income Tax Act to respond to Notices of Requirement. ( See R. v.

Pinno , 2002 SKPC 118 at para. 12-13 , 15-16 where a similar argument was also rejected.) There is no air of reality to these arguments. Mr. Merrill, in his personal capacity, was required to respond to the Notices of Requirement. [ 6 ] I accept that the Notices of Requirement were served on “Steven James Merrill” and that “Steven James Merrill” is the name of the person charged on the Information before the court and is the person I am referencing as “Mr. Merrill” and is the person who has appeared before the court with this matter. [ 7 ] Mr.

Merrill wrongly believed that he had no legal obligation to respond to the Notices of Requirement until Mr. Pagett first provided him with a certified copy of Mr. Pagett’s Oath of Allegiance to Her Majesty. The court can appreciate that in modern society, from time to time, one receives requests for money from unknown fraudulent senders claiming to be entitled to that money. However, this is not a case of Mr. Pagett requesting any money from Mr. Merrill. It was simply a Notice of Requirement to file tax returns with the Canada Revenue Agency.

The returns were to be delivered to the Canada Revenue Agency office and not to some fly-by-night fraudulent address. The simplest of searches by Mr. Merrill would have confirmed the address was the business address for Canada Revenue Agency and that Mr. Pagett had an office there. [ 8 ] Mr. Merrill made yet another error in law when he maintained that the Notices of Requirement were a contract offer. It is no contract at all—it is a demand from an authorized government agency tasked with and having authority to make such demands. The potential consequences were correctly set out to Mr.

Merrill in the Notices of Requirement served on him: If you do not comply with this notice of requirement, you may be subject to prosecution without further notice. Subsection 238(1) of the Income Tax Act provides that a person who fails to comply with this notice is guilty of an offence and is liable, on

summary conviction,

to a fine of not less than $1,000, and not more than $25,000 or both the fine and imprisonment not exceeding twelve months… The information, as described above, is required to be filed to the: Southern Interior Tax Services Office 277 Winnipeg Street, Penticton, British Columbia, V2A 1N6 Attention: Christopher Pagett Court Process Issues [ 9 ] Mr. Merrill failed to timely file his tax returns by May 1, 2019. On September 11, 2019 the Information was filed with the court and these proceedings administratively commenced. Mr.

Merrill wrongly claimed that the Information was defective because it does not include a seal, a flag, a coat of arms, or any official insignia or logo that would confirm its origin. The Information did contain the usual affirmation before a Justice of the Peace and was properly before the court. Mr. Merrill also wrongly claimed that the police officer serving the court summons on him on October 24, 2019 had no authority to do so because that Summons did not include a seal, a flag, a coat of arms, nor any official insignia or logo that would confirm its origin.

A review of the Summons shows it was digitally signed by a Justice of the Peace on September 11, 2019 and was therefore a valid Summons. [ 10 ] Mr. Merrill believed the court did not have jurisdiction to hear this matter unless the presiding judge confirmed his/her oath of allegiance to Her Majesty. While I had no legal obligation to do so given the presumption of regularity when Mr. Merrill appeared in open court before me, I chose to verbally confirm to Mr. Merrill that I have in fact made such an oath and I would deal with his matter fairly.

He was unwilling to enter a plea, so I followed the law by directing the not guilty plea be recorded. The trial commenced July 13, 2020 and was adjourned for completion on August 4, 2020. [ 11 ] Mr. Merrill wrongly believed the Provincial Court had no jurisdiction to hear the matter given the court could not clarify, to his satisfaction, whether the matter was proceeding in Admiralty Court, Civil Court, Criminal Court or Quasi-Criminal court. I explained to him on multiple occasions that this had nothing to do with Admiralty Court or Civil Court.

I further explained how the offence was under sections 231.2 and 238(1) of the Income Tax Act and the potential penalties were set out in that Act, but the matter is quasi-criminal because even though the offences weren’t under the Criminal Code , the court process and procedures fell under the Criminal Code . The criminal court process began by the laying of the Information. The Criminal Code s.6 applied such that there was a presumption of innocence.

The Crown had the onus and burden of proving the strict liability allegations beyond a reasonable doubt, but it was open to the accused to establish a due diligence defence. The court entered the not guilty plea on behalf of Mr. Merrill pursuant to s. 606(2) of the Criminal Code when Mr. Merrill refused to enter any plea. It is simply a mistake in law if Mr. Merrill continues to believe this matter is being prosecuted in any court other than in a criminal court. The definition of “Act” in s. 2 of the Criminal Code is worded broadly enough to include

an Act of Parliament such as the Income Tax Act . Fairness Issues [ 12 ] Mr. Merrill claims that beginning in the summer of 2014, certain collection agents of the Canada Revenue Agency conspired against him unfairly. He believes the conspiracy continued through 2019, when Mr. Pagett served the Notices of Requirement. The credible evidence simply does not reflect any such conspiracy and is not worthy of any further analysis, given there is no air of reality to the claim. [ 13 ] On January 21, 2020 Canada Revenue Agency did receive Mr. Merrill’s tax returns for the years in question. Mr.

Merrill claims Crown Counsel acted unfairly by continuing the prosecution after his belated filing of the returns. While the belated filing could be a mitigating factor to consider if convicted, it did not change the fact that the filings were made after the May 1, 2019 deadline set out in the Notices of Requirement. The matter properly proceeded in court. [ 14 ] Mr. Merrill claims he was intimidated by the court when at the outset of the trial, he was temporarily taken into custody for a couple of hours for alleged contempt of court in the face of the court.

He also believes the court further limited his ability to make full answer and defence when the court found some of his evidence to be irrelevant and not admissible. [ 15 ] The court has a positive duty to be fair and courteous to litigants. This task becomes more complicated when an accused choses to be disruptive throughout much of the court process. Mr. Merrill continued to maintain he was not the accused but rather, an agent for the accused. He acknowledged with me that his given name at birth was Steven James Merrill. He ran a business on Bernard Street in Kelowna named Sun City Silver and Gold Exchange.

It is Steven James Merrill that is charged on the Information and was served with the Summons. However, Mr. Merrill continued throughout his court appearances to claim the proper accused should have been a fiction person named STEVE MERRILL. I have already addressed the total nonsense of this straw man logic, which has been rejected by all courts that have heard similar such arguments. Naturally, if in fact Mr. Merrill was not the accused, then he had no obligation to attend court and there would be a bench warrant for the arrest of the charged Mr. Merrill. If on the other hand, where the Mr.

Merrill before the court was the Mr. Merrill served with the Notices of Requirement and served with the court Summons, then his pretending to be someone else was contemptuous, especially when he chose to walk out on the trial. It is always open to an accused, who has been served with a court Summons, to argue in court that the police have served the wrong person. It is not acceptable that Mr. Merrill not respond to the Summons and attend court when required to do so by the court.

He can think what he chooses to think, but once his thoughts turn into actions, such as walking out of the court, after repeatedly being told by the judge not to leave the courtroom, then such conduct, if done in a defiant manner and without lawful excuse, becomes contemptuous. [ 16 ] Even before the hearing of evidence commenced on the July 13, 2020 trial date, Mr. Merrill conducted himself in a manner very obstructive to completing the trial. He was lecturing the court on how the Crown had no legal reason to proceed given he had eventually filed his tax returns.

He demanded that the Crown prove court jurisdiction before having the trial proceed. At this point I reminded Mr. Merrill that he was not the person in control of the trial and it was proceeding. Mr. Merrill took exception to this and he packed up his things and started to walk right out of the courtroom. As he approached the exit door, the following conversation

happened: Judge Smith: If you leave, the sheriffs are just going to arrest you sir. Mr. Merrill: For what? Judge Smith: If you want to find out, just try leaving and see what happens. Don’t leave. (Mr. Merrill continued walking out). Judge Smith: Don’t leave. Mr. Merrill: I am not on the ship. Judge Smith: Don’t walk out. (Mr. Merrill continued walking totally outside the door) Sheriffs, will you please put him into custody. That is what he chooses and I am not going to put up with this nonsense. Sheriffs: (bring Mr. Merrill back into the courtroom) Mr. Merrill: What have I done?

Judge Smith: You are not going to stop this trial from happening. Mr. Merrill: Then I will sit here. Judge Smith: Sit…. Mr. Merrill: Why am I being detained? Judge Smith: You are having a trial and you just--- Mr. Merrill: You are having a trial. Judge Smith: Sir, you may not like the way this is proceeding—I am trying to be as calm as I can, but you are very disruptive and in the end, I am the one in control here and not you…you need to understand that you are not stopping this process from happening. Mr. Merrill: I wasn’t planning to stop it from happening. Judge Smith: When you walked out, that stopped it. Mr.

Merrill: How? Judge Smith: You are the accused. Mr. Merrill: No I am not, I am agent for the accused. Judge Smith: Because of your denial in that regard and your disruptive behaviour, that is exactly why you now find yourself in custody. [ 17 ] Mr. Merrill had appeared before me a few times prior on this matter, claiming to just be the agent for the accused. I was not allowing any such agency appearance by him. He had been told that if he was not the accused person served with the Summons, then he was free to go but then there would be a warrant for the arrest of the Mr. Merrill who was served with the Summons.

On those occasions, Mr. Merrill was not denying he was the person served with the Summons, but he simply believed the Summons was either invalid or served on the wrong person. However, it is with this background, that the court told him on July 13, 2020 that if he left the courtroom, he would be arrested. [ 18 ] Ultimately the Crown witness testified in chief while Mr. Merrill was in custody. For cross-examination, the court allowed Mr. Merrill out of custody, after Mr.

Merrill promised to conduct himself in a way that did not disrupt the trial. [ 19 ] The “straw man” argument of not being the accused has been addressed by many courts over the years. I concur with the words of Justice Rooke found in paragraph 72 of Meads v Meads , 2012 ABQB 571 . No Canadian court has accepted an OPCA concept or approach as valid. This part of the decision identifies a common basis to reject these ideas as a category: they directly attack the inherent jurisdiction of Canadian courts.

That fact is also a basis for why OPCA schemes are inherently vexatious, and provide evidence that may potentially lead to orders for contempt of court. [ 20 ] Any claim by Mr. Merrill that the court, in detaining him, did not allow him to make full answer and defence is an interesting claim, given it is a claim only open to an accused as opposed to some agent of an accused not on trial. It was the constant contemptuous conduct of Mr. Merrill that led to his arrest, but the court finds it in no way stopped him from making full answer and defence. [ 21 ] Mr.

Merrill also claims the court did not allow him to make full answer and defence by denying him an opportunity to call certain witnesses. The court has the responsibility of only accepting relevant evidence. No relevant evidence tendered by Mr. Merrill was excluded.

Summary [ 22 ] In the simplest of terms, Mr. Merrill refused to timely file his personal tax returns when they were due for the tax years 2014, 2015, 2016, 2017.

[ 23 ] When personally served with the Notices of Requirement on January 30, 2020, he again simply refused to timely file these tax returns by the May 1, 2020 deadline set out in the Notices of Requirement. [ 24 ] I am not left with any reasonable doubt that Mr. Merrill is guilty as charged and I find him guilty on all counts. _________________________ R.R. SMITH, P.C.J.