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

Citation: R. v. Moman (R.), 2011 MBCA 34 Date: 20110413 Docket: AR 10-30-07421 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) C. J. Mainella and ) O. A. Siddiqui (Respondent) Applicant ) for the Applicant ) ) J. C. Prober and ) H. A. Khan - and - ) for the Respondent ) ) Chambers motion heard: ) March 24, 2011 ROBERT MOMAN ) ) Decision pronounced: (Accused) (Appellant) Respondent ) April 13, 2011 MARC M. MONNIN J.A. 1 The Crown seeks leave to appeal a decision of a

summary conviction appeal judge pursuant to s. 839 of the Criminal Code (the Code ). After a trial, the accused was convicted on two counts (under s. 239(1)(

a) of the Income Tax Act ) of making false or deceptive statements in his income tax returns by understating his taxable income, on one count (under s. 239(1)(

d) of the Income Tax Act ) of wilfully evading the payment of taxes by understating his taxable income, and on one count (under s. 327(1)(

c) of the Excise Tax Act ) of wilfully evading the remittance of GST by failing to declare income. Stays were entered on the first two counts and he was sentenced to 12 months in jail and payment of a fine equal to the taxes owed. He appealed the convictions and sentence to a judge of the Court of Queen’s Bench, sitting as a

summary conviction appeal judge (the appeal judge). The appeal judge overturned the trial judge’s decision, set aside the convictions on all counts and ordered a new trial before a different judge. The Crown now seeks leave to appeal. FACTS 2 The accused is a resident of Neepawa, Manitoba, and for the taxation years in question operated a construction business. He failed to file tax returns for the taxation years 1996 through 2000 and received notices to do so. He was charged with failing to comply with these notices and convicted on January 8, 2003, in the Provincial Court of Manitoba.

In addition to a fine, he was ordered to file tax returns for the relevant years. 3 He did file his tax returns, but inserted the number zero with respect to income and net taxable income. The Canada Revenue Agency (CRA) conducted an investigation which included reviewing bank accounts, building permits and documents seized upon a search of his home. 4 As a result of the investigation, he was charged with the four counts which form the basis of these proceedings. PROVINCIAL COURT TRIAL 5 The trial took place over a period of four days.

At the outset of the trial, counsel for the Crown indicated that, in addition to calling a number of witnesses who had commissioned work from the accused, they would also call two employees from the CRA involved in the investigation. The first was the lead investigator in the Special Investigations Unit who performed the analysis on the information obtained and concluded that there had been failure to report income and to remit tax.

That investigator relied upon the calculation of expenses performed by a second CRA employee, an auditor, who derived the figures from suppliers’ invoices seized from the accused’s home. As only the invoices for 2002 were available, expenses using the invoices for that year were used to calculate a percentage of what expenses were to the gross revenue. For the years 1999 to 2001, those percentage figures were used to estimate expenses based on the gross revenues for each of those three years and ultimately assess taxable income.

Under cross-examination, the lead investigator could offer no information as to the calculation of expenses other than referring to the work done by the auditor. 6 When the auditor who had prepared the expense calculations was called to testify at trial, Crown counsel (not the same

counsel as on appeal) sought to introduce additional documents. Defence counsel asked for an adjournment to allow him to review the documents. The Crown took the position that the witness was not necessary to prove its case and opted not to call the auditor and to close its case. At that point, defence counsel moved to dismiss for insufficient evidence although being advised that he would be precluded from calling evidence if he was unsuccessful.

The thrust of the accused’s motion was that the Crown had led no admissible evidence on the issue of expenses, thereby failing to establish that there was taxable income as opposed to mere revenue. The Crown argued that the evidence provided by the Crown was sufficient to establish a net income and that the expenses were irrelevant to a determination of guilt. 7 The trial judge concluded that the accused was conducting a business and that he had wilfully avoided reporting net taxable income.

She referred to the expenses for the year 2002 as business records of the CRA, having been obtained by the CRA as part of its investigation. She found that reliance upon those expense figures by the lead investigator was not reliance upon hearsay evidence.

She found that the accused had evaded paying income taxes and also failed to pay the GST, based on the evidence of income. 8 At the sentencing hearing, at the suggestion of the Crown, the trial judge entered conditional stays on the two counts of filing false returns and sentenced the accused to one year incarceration and payment of fines equal to the amounts of the tax evaded.

SUMMARY CONVICTION APPEAL 9 The accused appealed to the Court of Queen’s Bench. The only ground of appeal relevant to this leave application was that the trial judge erred in admitting the expense figures into evidence as a business record. Counsel for the accused noted that under s. 30(10)(a)(

i) of the Canada Evidence Act (the CEA ), the exception provided for the admissibility of business records does not include documents obtained as a result of an investigation. 10 In response, the Crown’s position before the appeal judge was that, having established that the accused had received income and paid no taxes, the charges had been made out. In its submission, expense calculations were irrelevant to the conviction. The Crown also argued that the expense figures and corroborating invoices were exhibits in the cause and therefore properly before the trial judge.

Finally, it argued that the CEA provisions were enabling and did not prevent admissibility under other common law principles. 11 The appeal judge concluded that the admission of the expense records by the trial judge was an error in law as the CEA specifically excluded records obtained in the course of an investigation. He noted that the trial judge had relied upon the expense calculations and did not do her own calculations.

He concluded that the convictions were founded on inadmissible evidence and set them aside, but sent the matter back for rehearing before another judge, as he found that there was considerable admissible evidence for the court to consider. ALLEGED ERRORS OF LAW 12 The jurisdiction of the Court of Appeal to hear and determine an appeal from an appeal judge is s. 839 of the Code , which requires leave be obtained on a question of law alone. 13 The Crown argues the following errors are to be found in the appeal judge’s reasons: (

a) The appeal judge erred in his

interpretation of the offence of income tax evasion as requiring the Crown to prove the expenses of an accused as an element of the offence. (

b) The appeal judge erred in his

interpretation of the offence of evading the remittance of GST as requiring the Crown to prove the expenses of an accused as an element of the offence. (

c) The appeal judge erred as to the admissibility of the calculation of the 2002 tax year expenses. (

d) The appeal judge erred in ordering a new trial on all counts as opposed to proceeding with a de novo hearing on the question of quantum of income tax evaded pursuant to s. 822 of the Code . STANDARD OF REVIEW ON A

SUMMARY CONVICTION APPEAL 14 There is no dispute that the scope for leave being granted is narrow, given the accepted policy to discourage second-level appeals. The criteria to obtain leave to appeal are as follows: (

a) Any ground of appeal must involve a question of law alone. (

b) Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance. (

c) The arguable case must be of sufficient importance to merit the attention of the full court. See R. v. Oliver , 2011 MBCA 12 ; R. v. Denys (C.D.) , 2009 MBCA 39 , 240 Man.R. (2d) 13 ; and R. v. McCorriston (G.J.) , 2010 MBCA 3 , 251 Man.R. (2d) 106 . 15 To this I would add that the decision under review and in which there must be an arguable error of law is that of the

summary conviction appeal court and not of the trial court. See R. v. Langlois (D.J.) , 2008 MBCA 72 , 228 Man.R. (2d) 256 at para. 1 . 16 As well, a judge on a leave application should be reluctant to grant leave on an issue which has been raised for the first time in this court. See R. v. R. (R.) , 2008 ONCA 497 , 234 C.C.C. (3d) 463 at para. 38 . ANALYSIS Issue No. 1

Did the appeal judge err in law in his

interpretation of the offence of income tax evasion as requiring the Crown to prove the expenses of the accused as an element of the offence? 17 The Crown’s position is that it does not have to prove the amount of the expenses as an element of income tax evasion. It argues that the CRA gave the benefit of the doubt to the accused to offset his gross business revenue by attributing prorated expenses.

It could have simply taken the position that, given the lack of proper records, the revenue had been proven with no expenses attributed against them. 18 The accused’s position is that what is at issue is whether there was net taxable income. All the Crown has proven is that the accused received revenue, not that this revenue was in fact net income. In defence counsel’s words, the Crown has failed to show a tax liability.

While conceding that quantum (the amount of taxes due) is a question for sentencing, the Crown must still prove that there was net income before tax liability and therefore tax evasion is founded. 19 I agree with the defence contention that, on the facts of this case, the expense calculations were relevant to a determination of whether there was a tax liability for the counts under appeal.

The trial judge certainly thought so, hence the ruling on their admissibility. 20 The Crown’s position would be stronger had it not indicated that its case would be presented in a manner whereby there would be evidence as to expenses provided by one of its witnesses and that expenses incurred by the accused in running his business were part and parcel of the CRA’s own determination of tax liability.

It is only once faced with the prospect of a further adjournment that Crown counsel decided not to call the witness whose only purpose was to present evidence relating to expense calculations. 21 I do not read the appeal judge’s decision as requiring that expenses be proven as a necessary element of the offence of tax evasion.

The crux of his decision is that the Crown’s trial strategy had made expenses an issue in determining tax liability and the trial judge had improperly relied upon inadmissible evidence to reach her decision on that issue. 22 Therefore, while the ground of appeal raises a question of law, it is not one that is arguable on the basis of the appeal judge’s decision.

Issue No. 2 Did the appeal judge err in law in requiring the Crown to prove the accused’s expenses as an element of evading the remittance of GST? 23 Again, the Crown argues that it is not required to prove expenses with respect to a charge of avoiding payment of GST, given that all that is required is for it to show that income upon which tax was required to be collected was received by the accused. The accused is then required, by virtue of holding these funds in trust, to remit them to the Crown.

The Crown’s position is that it clearly showed that income was received for which tax was payable and none was remitted by the accused. 24 The accused’s counsel argues that the calculation of expenses is important as it goes to the extent to which taxes had to be remitted, given that the accused would have been entitled to input credits based upon the expenses incurred in producing the income.

The expenses would have been used to determine what, if any, tax was owed by the accused to the government. 25 There is an interrelationship between the two in that the Crown was seeking convictions based upon the evidence as applying to both counts. The Crown used the expense calculations for the purposes of determining the amount of tax which it claims was owed and the GST to be remitted.

It would appear that the trial judge used the expense calculations to decide whether or not tax liability or GST remittances were owed. 26 The appeal judge did not differentiate between the liability for income tax and GST remittances. His reasoning would have been the same.

That is, if the expense calculations were germane to the Crown’s case, they needed to be adduced by admissible evidence before the trial judge could use them to reach her conclusion that there was a GST liability as required to convict. 27 Consequent upon my decision as to the first ground advanced by the Crown, I do not believe this ground raises an arguable question of law on the basis of the appeal judge’s decision.

Issue No. 3 Did the appeal judge err as to the admissibility of the auditor’s calculations of the accused’s 2002 tax year expenses? 28 The Crown argues that the appeal judge erred in concluding that the reference to business records in the trial judge’s oral reasons was a reference to s. 30 of the CEA and that, if it was, s. 30(10)(a)(

i) was applicable. Section 30(10)(a)(

i) provides as follows: Evidence inadmissible under this

section 30 .

(10) Nothing in this

section renders admissible in evidence in any legal proceeding (

a) such part of any record as is proved to be (

i) a record made in the course of an investigation or inquiry. 29 The Crown’s submission is that whether or not the expense calculations were created as a result of an investigation does not answer the question as s. 30 of the CEA is an enabling section, not a restrictive one. The provisions of s. 30 of the CEA are in addition to whatever rules of admissibility which exist at common law (see s. 30(11)).

30 In the Crown’s submission, the information provided to the lead investigator by the other CRA employee was simplysummaries of calculations which are admissible in their own right since they were based on evidence which had already been properlyadmitted at the trial. See R. v. Scheel (1978), (ON CA), 42 C.C.C. (2d) 31 (Ont. C.A.). Furthermore, as arguedpreviously by the Crown, there was no legal relevance to the calculations. The Crown did not have to prove the accused’s expenses. They were relevant only for sentencing.

Finally, since they were business records according to the common law exception to the hearsayrule, they could have been admitted on that basis. 31 It is noteworthy that, before the

summary conviction appeal court, the Crown did not argue that the expense calculationswere admissible as business records under the common law exception. It argued that the expense figures in the corroborating invoiceswere exhibits in the cause properly before the trial judge. They were facts the trial judge was entitled to consider and ultimately acceptthrough the evidence of the lead investigator. 32 However, as noted by the appeal judge and defence counsel, that is not how the matter was treated by the trial judge. Thetrial judge considered the expense calculations and records as business records of the CRA.

She relied upon the calculations in herassessment of overall tax liability. The accused’s counsel had indicated at the outset that he was intending to question the expensescalculated by the CRA, what steps were taken to determine what they were and what was included. 33 The reference to business records by the trial judge is unclear. If it is a reference to a business record as contemplated by theCEA, then the trial judge erred.

If it is a reference to a business record under the common law exceptions, they may have beenadmissible in appropriate circumstances after an assessment of their necessity and reliability had been done in accordance with theprincipled approach for the admissibility of hearsay statements. See R. v. Khan, (SCC), [1990] 2 S.C.R. 531, and R. v.Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.

That does not appear to have been undertaken or even argued. 34 In my view, the Crown has not demonstrated an arguable case of substance that the appeal judge erred in concluding that thereference was to a business record as contemplated by the CEA and that the evidence was inadmissible under that Act. Issue No. 4 Did the appeal judge err in ordering a new trial as opposed to proceeding with a de novo hearing? 35 The

summary conviction appeal proceeded under s. 813 of the Code. The Crown argues that s. 822 of the Code applied tothe appeal. Pursuant to that section, the appeal court, if it is of the opinion that the interests of justice would be better served, has thejurisdiction to determine the appeal by holding a trial de novo. In the Crown’s submission in this case, the trial de novo would have beena sentencing hearing where evidence on the expenses could have been adduced to determine the proper quantum. The Crown argues thatthis is an important issue which will allow this court to provide direction to the

summary conviction appeal court with respect toproceedings under s. 822. 36 Section 822(4) provides that conducting an appeal by holding a trial de novo can only occur upon application by one of theparties. No such application was made to the appeal judge. I fail to see that this ground raises an arguable point of law.

CONCLUSION 37 Even if I had found arguable points of law with respect to the grounds advanced by the Crown, I would have not found any socompelling that they warranted review by this court and would not have exercised my discretion to grant leave. 38 I am also of the view that the decision to return this matter to Provincial Court for a retrial is the appropriate course of actionin order to ensure fairness to the accused. 39 The application for leave to appeal is dismissed. __________________________ J.A.