Docket: CACR2127 Douglas Preston Amell Appellant - v. -, 2013 SKCA 48

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 48 Date: 2013-05-03 Between: Docket: CACR2127 Douglas Preston Amell Appellant - and - Her Majesty the Queen (Canada) Respondent Between: Docket: CACR2128 Heidi Lynne Keyzer Appellant - and - Her Majesty the Queen (Canada) Respondent Between: Docket: CACR2129 Robert Lawrence Amell Appellant

- and - Her Majesty the Queen (Canada) Respondent Coram: Cameron, Lane and Herauf JJ.A. Counsel: Douglas Christie for the appellants Douglas Curliss and Kirsten Janis for the respondent Appeal: From: 2012 SKQB 87 Heard: January 11, 2013 Disposition: CACR2127 - Appeal dismissed CACR2128 - Appeal allowed CACR2129 - Appeal dismissed Written Reasons: May 3, 2013 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Herauf

Lane J.A. [1] These are

summary conviction appeals of conviction and sentence pursuant to s. 839(1) of the Criminal Code. The parties were convicted of a number of offences under the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.) (the “ITA”). Such appeals require leave onany ground which involves a question of law alone but that question of law must be one of importance (R. v. Mellquist (1988), (SK CA), 42 C.C.C. (3d) 231 (Sask. C.A.)).

Douglas Preston Amell (“Douglas”) has previously received leave to appealand it is appropriate in these circumstances to grant leave to appeal to Heidi Lynne Keyzer (“Heidi”) and Robert Lawrence Amell(“Robert”). [2] Douglas was convicted on four counts including failing to report income and evading payment of tax, wilfully obtaining goodsand services tax credits, and wilfully assisting his common-law spouse, Heidi, to obtain both goods and services tax credits to which shewas not entitled and to obtain Canada child tax benefits to which she was not entitled.

Heidi was convicted on three counts includingfailing to report income and evading payment of tax, wilfully obtaining goods and services tax credits to which she was not entitled, andwilfully obtaining Canada child tax benefits to which she was not entitled.

Robert, father of Douglas, was convicted on two countsincluding failing to report income and evading payment of tax, and wilfully obtaining goods and services tax credits to which he was notentitled. [3] Douglas was sentenced to 16 months imprisonment and fined the amount of the unpaid taxes; Heidi was sentenced to 5 monthsimprisonment and fined the amount of the unpaid taxes; and Robert was sentenced to 3 months imprisonment and again fined theamount of the unpaid taxes.

Robert has served his sentence. [4] Douglas is a registered naturopathic practitioner practicing through his clinic, Moose Jaw Naturopathic Clinic Inc., and was thesole director and shareholder of the corporation. Heidi and Robert were employed by the corporation. [5] The facts are more completely set out in the judgments of the trial judge at 2010 SKPC 107, 361 Sask. R. 61, and the

summaryconviction appeal court judge at 2012 SKQB 87, 391 Sask. R. 196. Suffice it to say the parties, led by Douglas, participated in a schemewhere each decided they could sign a “contract for hire” as a “natural person” and receive compensation in exchange for property, whichproperty was their time and labour, without this compensation counting as taxable income.

Douglas testified to the effect that if he wasexercising his rights to dispense with his private property, that to consider this as income for the purposes of the ITA would constitute aviolation of rights afforded by the Canadian Bill of Rights, S.C. 1960, c. 44. As will be noted, this scheme has received much judicialcomment and the participants have had little, if any, success before the courts.

For the reasons which follow, the appellants, save forHeidi, will have no success and their appeals of conviction and sentence are dismissed. [6] The appellants represented themselves at trial because, according to Douglas, they could not find legal counsel who wouldpresent the defence the way they wished it presented. Douglas was the only spokesman for the appellants handling the trial and the voirdire and was the only one who testified.

The appellants were represented on appeal. [7] The appellants raise several grounds that, unless hereinafter commented on, are without merit or no prejudice was suffered by theappellants. We did not require the respondent to respond to these issues. For example, the appellants argue the

summary convictionappeal court judge erred when he upheld the trial judge’s decision to enter “not guilty” pleas on behalf of the accused appellants. Section 606(2) of the Criminal Code is a full answer to this ground and this ground fails. The

summary conviction appeal court judgemade no error in upholding, as a proper exercise of the trial judge’s discretion, his allowing the chief investigating officer to remain inthe courtroom while other witnesses testified. Further, it was clearly open to find on the evidence the appellants had the necessary mensrea to evade the payment of income tax, and that Heidi and Robert specifically had the necessary criminal intent to evade the payment ofincome tax. The

summary conviction appeal court judge made no error in upholding this finding. [8] There were, however, five grounds raised which we asked the respondent to address:

(1) The validity of the search warrants;

(2) The right not to testify;

(3) The failure to order disclosure of an “Early Warning Report”;

(4) The failure to grant Heidi an adjournment; and

(5) The fitness of the sentences imposed. I will discuss each in turn below.

(1) The validity of the search warrants [ 9 ] Canada Revenue Agency obtained search warrants pursuant to s. 487 of the Criminal Code which reads as follows: Information for search warrant 487

(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place (

a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (

b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, (

c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or (c.1) any offence-related property, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant (

d) to search the building, receptacle or place for any such thing and to seize it, and (

e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with

section 489.1. Endorsement of search warrant

(2) If the building, receptacle or place is in another territorial division, the justice may issue the warrant with any modifications that the circumstances require, and it may be executed in the other territorial division after it has been endorsed, in Form 28, by a justice who has jurisdiction in that territorial division. The endorsement may be made on the original of the warrant or on a copy of the warrant transmitted by any means of telecommunication. Operation of computer system and copying equipment

(2.1) A person authorized under this

section to search a computer system in a building or place for data may (

a) use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system;

(

b) reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output; (

c) seize the print-out or other output for examination or copying; and (

d) use or cause to be used any copying equipment at the place to make copies of the data. Duty of person in possession or control

(2.2) Every person who is in possession or control of any building or place in respect of which a search is carried out under this

section shall, on presentation of the warrant, permit the person carrying out the search (

a) to use or cause to be used any computer system at the building or place in order to search any data contained in or available to the computer system for data that the person is authorized by this

section to search for; (

b) to obtain a hard copy of the data and to seize it; and (

c) to use or cause to be used any copying equipment at the place to make copies of the data. Form

(3) A search warrant issued under this

section may be in the form set out as Form 5 in

Part XXVIII, varied to suit the case. Effect of endorsement

(4) An endorsement that is made in accordance with subsection (2) is sufficient authority to the peace officers or public officers to whom the warrant was originally directed, and to all peace officers within the jurisdiction of the justice by whom it is endorsed, to execute the warrant and to deal with the things seized in accordance with

section 489.1 or as otherwise provided by law. [ 10 ] The appellants contend Canada Revenue Agency should have obtained the search warrants pursuant to ss. 231.3(1) and 231.1(3) of the Income Tax Act which reads as follows: Search warrant 231.3

(1) A judge may, on ex parte application by the Minister, issue a warrant in writing authorizing any person named therein to enter and search any building, receptacle or place for any document or thing that may afford evidence as to the commission of an offence under this Act and to seize the document or thing and, as soon as practicable, bring it before, or make a report in respect of it to, the judge or, where the judge is unable to act, another judge of the same court to be dealt with by the judge in accordance with this section. Inspections 231.1

(1) An authorized person may, at all reasonable times, for any purpose related to the administration or enforcement of this Act, (

a) inspect, audit or examine the books and records of a taxpayer and any document of the taxpayer or of any other person that relates or may relate to the information that is or should be in the books or records of the taxpayer or to any amount payable by the taxpayer under this Act, and (

b) examine property in an inventory of a taxpayer and any property or process of, or matter relating to, the taxpayer or any other person, an examination of which may assist the authorized person in determining the accuracy of the inventory of the taxpayer or in ascertaining the information that is or should be in the books or records of the taxpayer or any amount payable by the taxpayer under this Act, and for those purposes the authorized person may

(

c) subject to subsection 231.1(2), enter into any premises or place where any business is carried on, any property is kept, anything isdone in connection with any business or any books or records are or should be kept, and (

d) require the owner or manager of the property or business and any other person on the premises or place to give the authorized personall reasonable assistance and to answer all proper questions relating to the administration or enforcement of this Act and, for that purpose,require the owner or manager to attend at the premises or place with the authorized person. Prior authorization

(2) Where any premises or place referred to in paragraph 231.1(1)(

c) is a dwelling-house, an authorized person may not enter thatdwelling-house without the consent of the occupant except under the authority of a warrant under subsection 231.1(3). Application

(3) Where, on ex parte application by the Minister, a judge is satisfied by information on oath that (

a) there are reasonable grounds to believe that a dwelling-house is a premises or place referred to in paragraph 231.1(1)(c), (

b) entry into the dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act, and (

c) entry into the dwelling-house has been, or there are reasonable grounds to believe that entry will be, refused, the judge may issue a warrant authorizing an authorized person to enter the dwelling-house subject to such conditions as are specified inthe warrant but, where the judge is not satisfied that entry into the dwelling-house is necessary for any purpose relating to theadministration or enforcement of this Act, the judge may (

d) order the occupant of the dwelling-house to provide to an authorized person reasonable access to any document or property that is orshould be kept in the dwelling-house, and (

e) make such other order as is appropriate in the circumstances to carry out the purposes of this Act, to the extent that access was or may be expected to be refused and that the document or property is or may be expected to be kept in thedwelling-house. The appellants say the

summary conviction appeal court judge erred in law by upholding the search warrants. [11] The appellants argue a search warrant issued pursuant to the Criminal Code provides fewer constitutional protections because itprovides fewer procedural safeguards than a search warrant issued pursuant to s. 231 of the ITA. They say s. 231 should have been usedbecause s. 487 is a general power, while s. 231 was specifically designed for use by Canada Revenue Agency. [12] Amending this provision in 1993 to conform with Charter rights shows that Parliament intended that s. 231 was to be used in thesesituations—the previous

section had been struck down in Baron v. Canada, (SCC), [1993] 1 S.C.R. 416, because thewording deprived the issuing judge of a residual discretion and thus contravened s. 8 of the Charter. The subsequent amended provision,according to the appellants, was specifically drafted to comply with the Charter and the Criminal Code provisions were not. [13] R. v. Multiform Manufacturing Co., (SCC), [1990] 2 S.C.R. 624, says the warrant provision under the Codeapplies to any federal statute even when another statute has a search warrant provision.

The appellants argue this authority does notapply because Multiform explicitly says it does not deal with Charter arguments. They believe they have fashioned a Charter argumentwhich was not advanced in Multiform and, indeed, the fact such an argument could be made was mentioned in R. v.

Charania, (ON SC), [2000] 1 C.T.C. 134, wherein the trial judge stated: 17 … While it is conceivable that a Charter argument may be fashioned that the internal search and seizure code of another federalstatute is significantly more protective of Charter values than the s. 487 Code regime, an argument not advanced in the Multiform case,that submission was not articulated in this proceeding.

[14] The appellants argue there is greater protection of constitutional rights under a warrant issued pursuant to s. 231 of the ITA forthree reasons. First, it is required to be issued by a superior or federal court judge while a warrant authorized by the Criminal Code maybe issued by any justice, including a justice of the peace. Second, that a more highly ranked employee is required to apply for warrantsunder the ITA and the particular official who applied for the warrant under the Code in this case did not have the authority to do so underthe ITA.

The third distinction the appellants point out pertains to the scope of the search warrants. They allege that the taking ofphotographs and searching the appellants’ vehicles on their property would not have been lawful under the search warrant provisions ofthe ITA because those searches did not directly relate to an investigation under the ITA. [15] The respondent says the Code and the ITA provisions are equally subject to and compliant with the Charter. [16] The respondent, in response to the scope of the search warrant argument, says there is no material difference in terms of the scopeof the warrant.

The only difference in the scope is what offences warrants can be issued for. Under the ITA it is obvious warrants canonly be issued in relation to offences under that Act while under the Code search warrants can be issued for any offences under the Codeor “any other Act of Parliament”. This distinction is irrelevant in this case because the appellants were being investigated solely forviolations of the ITA. It concedes the appellants’ vehicles should not have been searched.

No evidence seized from the vehicles wastendered as evidence by the Crown and the photographs taken were simply a precautionary measure to show the state of the premisessearched. [17] The respondent continues the Minister has the power pursuant to s. 220(2.01) of the ITA to authorize an officer or a class of officersto exercise powers or perform duties of the Minister under the Act. It would be unreasonable to read the ITA as saying only the Ministercould obtain search warrants. Such an

interpretation would “create a disordered and inefficient government” (para. 73 of therespondent’s factum). The search warrants issued were constitutionally valid. [18] This ground of appeal must fail. I do not see the ITA search warrant provisions giving greater constitutional protections than theequivalent provisions in the Code. This issue was dealt with in R. v.

Porisky, 2012 BCSC 68, 2012 D.T.C. 5038, where the trial judgedismissed the accused’s arguments and in a brief judgment concluded the decision in Multiform was decisive of the issue and found theCode provisions applicable to any federal statute whether or not the other statute made reference to search and seizure powers. He foundthe search procedures under the two statutes to be “essentially identical constitutionally” (para. 7).

I agree. [19] The appellants did not allege there would have been any difference on the facts of this case whether the warrant was issued by asuperior or federal court judge as opposed to a justice of the peace or a provincial court judge. They do not say a superior court judgewould have refused to issue the warrants in this case.

The appellants have not persuaded me there is any difference constitutionally. [20] The appellants’ second argument on the search warrant issue is that under the ITA a more highly ranked employee is required toapply for warrants and the individual in this case did not have the appropriate authority to do so under the ITA. As pointed out by therespondent, it is clearly open to the Minister to delegate authority to employees of the Ministry. The appellants did not argue it wouldhave been impossible for the authority to be delegated to the individual, just that it was not done.

Nor did they argue the individual whoapplied for the warrant under the Code could not have been delegated the authority to apply for the warrant under the ITA. There isnothing to indicate that any difference as to who can apply for the warrants caused the appellants any prejudice. [21] With regard to the scope of the warrant, when one compares the legislation the difference is essentially one of semantics. The onlyreal difference is what offences warrants can be issued for. Under the ITA, warrants can only be issued in relation to offences under thatAct.

Under the Code, warrants can be issued for offences under the Code or “any other Act of Parliament”. This difference is notmaterial in this case because the appellants were being solely investigated, and ultimately charged, for violations of the ITA. [22] In my view, the differences between s. 231 of the ITA and s. 487 of the Code are of no constitutional effect in the case before us. The appellants have the onus of establishing their Charter rights were breached (see for example: United States of America v. Anekwu,2009 SCC 41, [2009] 3 S.C.R. 3 and R. v.

Belnavis, (SCC), [1997] 3 S.C.R. 341) and have failed to meet this onus.

(2) The right not to testify [23] The next issue raised by the appellants is the issue of the failure of the trial judge to warn the appellants of their right not to testifyand the error of the

summary conviction appeal court judge in finding the trial judge reasonably exercised his discretion when he did nottell the accused they had a right not to testify. The appellants say the trial judge had a particular duty, because they were unrepresented,to ensure they received a fair trial. They were not required to testify and should have been so advised. The failure to warn them resultedin an unfair trial. [24] The respondent says the appellants knew they did not have to testify and, indeed, Heidi and Robert did not testify. It was clearDouglas intended to testify in order to tell his side of the story.

No prejudice to the appellants has been demonstrated contends therespondent. [25] The appellants are correct the trial judge has a duty to ensure an accused receives a fair trial and there is no miscarriage of justice,see: R v. Harris, 2009 SKCA 96, 331 Sask. R. 283 at para. 28. In this case it must be noted the appellants did not have counsel at trialbecause they could not find counsel who would present the case the way they wanted. Reviewing the transcripts from the trial, it isclear that Douglas had every intention of testifying in order to put his side of the story before the trial judge.

He commenced hisevidence-in-chief with a lengthy explanation of his position which was obviously prepared in advance. Indeed, the fact his testimonywent on virtually uninterrupted for approximately 35 pages of transcript shows just how fully prepared he was to present the appellants’defence as he saw it. For example, he made reference to his use of Black’s Law Dictionary and other legal dictionaries. He referencedcase authorities which he contended supported his position, and referenced his use of Driedger on the Construction of Statutes whichhelped him to interpret the ITA. He clearly intended to testify.

It is also clear Heidi and Robert chose not to testify. [26] Given Douglas had carriage of the voir dire as the spokesperson for the appellants who chose not to testify, it must be inferred heknew he had the right not to testify like his coaccused. Assuming an error, the appellants have demonstrated no prejudice from sucherror nor have they demonstrated the error led to any trial unfairness.

(3) The failure to order disclosure of an “Early Warning Report” [27] The third issue is the issue of disclosure of the Early Warning Report. The trial judge refused to compel disclosure of an EarlyWarning Report allegedly prepared by officials in Canada Revenue Agency. There was conflicting evidence as to the existence of such areport with an official testifying that after reviewing the files, no such report had been prepared. The trial judge found the notessurrounding its production were not “relevant to anything”. The appellants say the

summary conviction appeal court judge erred infailing to find the trial judge erred by failing to compel disclosure of the report and they contend their right to full disclosure wasbreached. They believe the document would show that the Canada Revenue Agency violated the law by using the requirement power ofthe audit to gather evidence for a criminal investigation. If their Charter rights were violated, they may have the right to a new trial andsuch a document could potentially change the outcome of the new trial. [28] The respondent denies such a document exists.

The individual who supposedly prepared it did not remember writing one for thiscase. The investigator on the case had never seen such a report as no such report could be found. [29] I see no error with any failure to disclose the Early Warning Report. The onus is on the defence to show there was in existencepotentially relevant material and they did not meet this burden. See: R. v. Nguyen, 2006 SKCA 83, 285 Sask. R. 85 at para. 13-14: 13 … However, establishing a breach of the duty to disclose is only the first step of the analysis required to resolve this appeal.

Incircumstances where disclosure is made after the trial, the appeal court must consider the effect of non-disclosure. 14 In order to obtain a stay of proceedings, the accused must establish an irreparable prejudice to the right to make full answer anddefence. Where the remedy sought is a new trial, the accused need only demonstrate that the failure to disclose affected either theoutcome at trial or the overall fairness of the trial process. See: R. v. Dixon, (SCC), [1998] 1 S.C.R. 244 at paras. 35-39; R. v. Taillefer, 2003 SCC 70 , [2003] 3 S.C.R. 307 at paras. 81-84.

The trial judge concluded the document, if it existed, was not relevant and the

summary conviction appeal court judge was correct tofind no error.

(4) The failure to grant Heidi an adjournment [30] During the course of the voir dire Heidi was unable to attend court due to a medical emergency. While Douglas had full control ofthe appellants’ trial, Heidi had been assisting him. Eventually an adjournment was granted to accommodate Douglas but it was notgranted soon enough or for a long enough period to accommodate Heidi’s medical emergency and as a result she was not present for partof the voir dire. The appellants say this denied her the right to be present during trial and is a procedural irregularity which cannot becured by the curative provisions of the Code. They say the

summary conviction appeal court judge erred by not allowing her appeal. [31] Heidi claims her right to be present during the whole of her trial, as provided for in s. 650 of the Code, was breached. The relevantportion of the provision reads as follows: 650(1) Subject to subsections (1.1) to (2) and

section 650.01, an accused, other than an organization, shall be present in court during thewhole of his or her trial. [32] Although this was a

summary conviction proceeding, Heidi was charged with several

summary conviction offences which couldresult in possible sentences of more than six months. This brings into play ss. 800(2), 802(2), 802.1 and 803(2) of the Code which readsas follows: 800(2) Counsel or agent A defendant may appear personally or by counsel or agent, but the

summary conviction court may require the defendant to appearpersonally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearancepursuant thereto. 802(2) Examination of witnesses The prosecutor or defendant, as the case may be, may examine and cross-examine witnesses personally or by counsel or agent. 802.1 Limitation on the use of agents Despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable,on

summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent isauthorized to do so under a program approved by the lieutenant governor in council of the province. 803(2) Non-appearance of defendant If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been

notified of that time and place, or does not appear for the resumption of the a trial that has been adjourned in accordance with subsection (1), the

summary conviction court (

a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or (

b) may, if it thinks fit, issue a warrant in Form 7 for the arrest of that defendant and adjourn the trial to await their appearance under the warrant. [emphasis added] Douglas, therefore, could not be her agent to appear or examine or cross-examine witnesses (there being no issue as to the existence of an authorized program referred to in s. 802.1). [ 33 ] Heidi was pregnant during the voir dire and had to be hospitalized due to vaginal haemorrhaging. Douglas advised the trial judge as to Heidi’s difficulty and told the judge he had only a few more questions and asked whether he should go ahead or not.

The trial judge asked him to carry on saying that it was only a voir dire , not the trial proper, and that Heidi had indicated there were times where she might have to be outside the courtroom. The trial judge saw it as a

summary procedure matter and said it was her right to leave. He did not mention s. 802.1 and that because of that

section neither Heidi nor any of the appellants could appear by agent. He noted Douglas had been primarily involved in the conduct of the defence at which point Douglas advised the trial judge Heidi had been taking notes and assisting him. Douglas then advised the trial judge he did not know how much assistance he needed at that time because he only had a few more questions for the witness and said “I’d rather at least get through this and then maybe adjourn until I can get more information anyway before we proceed.” [ 34 ] The trial judge picked up on that and suggested they finish with that witness.

The prosecutor could then call his next witness and they would proceed through examination-in-chief of that witness and then see where they stood. [ 35 ] Douglas was also advised, when he then asked about witnesses testifying in Heidi’s absence, if he would have the right to cross- examine the witnesses during trial. [ 36 ] At that point the prosecutor interjected and said he was hoping to avoid bringing these particular witnesses back because he said they were irrelevant to the trial itself and he was hoping he would not have to call them again. [ 37 ] Douglas objected to the Crown calling its next witness, stating: “I object, Your Honour, I think my wife should be here because he’s going to be giving potential testimony for other things, too, right, not just the warrant” (transcript pp. 142-143).

Douglas’s objection was overruled. [ 38 ] Douglas stressed his position during this exchange with the trial judge: The Court: Mr. Amell, all of this relates to the search and the search procedures. Mr. Amell: Procedurally though doesn’t she have a right to be here to listen to this, Your Honour? The Court: Well, yeah, she has the right but she’s not here. Mr. Amell: How does it hurt proceedings if we hold off until, you know, get more information or she can be here? I’m just saying it’s convenience of proceedings versus perhaps, you know, a procedural right we might have, Your Honour.

That’s my only objection to that, it’s - you know, I understand you’ve got a time line and everything but - The Court: But, like I - Mr. Amell: This is to do with her as well, not just me, Your Honour. It’s not just to do with me. It’s her house that went - was rummaged through as well as mine. It’s - she’s got a right to, you know, hear and make comments and make notes about it. The Court: He hasn’t even talked about the house, though, except that he made a copy from the computer. And all he says is he made copies from computers at the office.

Mr. Amell: I’m just - I’m requesting that the Court wait until she’s here, Your Honour. That’s my request, you know. The Court: And - and - Mr. Amell: And it’s fair due process of law, Your Honour, or principles of fundamental justice, that’s all. The Court: If the evidence was at all germane or I thought that there was anything that she was going to add then I would grant the request but - Mr. Amell: Well, she might think it’s - what if she thinks of something to ask that I don’t? The Court: This is the most mundane kind of evidence - Mr. Amell: Okay. Well, you’ve heard my objection. I understand.

Okay. [ 39 ] The next day, Douglas very pointedly raised the issue of Heidi’s right to be present during the voir dire during this exchange: Mr. Amell: Can I say something just preliminary? The Court: Yes. Mr. Amell: The baby was – died – was dead yesterday afternoon. She’s still got the foetus - it’s inside still. They got to wait for her to abort itself and she can haemorrhage. I got a note from – I’ve got a copy. I understand if we still need to go through the disclosure, Your Honour. I don’t know that it’ll affect – it’s – it’s, you know, you’re right.

I mean how much questioning – I think I might be able to deal with it. The Court: Okay. …. [later in that same exchange before questioning of witnesses starts that morning] Mr. Amell: Okay. I’d like it considered, sir, that, you know, if you find that the search and seizure was unreasonable anyway just take into account that I – I can’t help but blame some of the stress yesterday morning and us being put through this that the foetus – on what happened. I’m sorry, I don’t know what else to say. That’s – I’m done. The Court: Okay. Mr. Dahlem? Mr. Dahlem: I really don’t know what to say.

If – I think the Court – I don’t know whether he’s asking for an adjournment or what. I’m in a slightly better position to – to – to adjourn actually because the – the out-of-town witnesses we – the real important ones we dealt with. What I have now is Regina witnesses and Moose Jaw witnesses. If the Court considers that Mr. Amell is unfit to conduct his defence at the present time I don’t really want to push to continue. I’d sooner adjourn myself in that sense because never know what happens down the road, so. What I’m saying is it would not be a great inconvenience for us at this point to adjourn for some time.

I may advise the Court that, you know, the balance of the search team is really a mechanical kind of event which is of no great importance as far as I can see but Mr. Amell is raising issues which I’ve actually previously argued in other courts but that’s another story, but I need to spend some time in the office to recover the case law. I have it all easily available but I need to review it.

I need to write a brief to the Court to – to address the issue of whether or not first of all the procedure that we employed is in fact approved by the Court and secondly, whether or not, you know, if anything else comes up that he may raise in this so I would suggest that it may well be convenient if that’s Mr. Amell’s wish to do the adjournment right now which would give me an opportunity to recover the law and then write the brief because I pretty well know what the issues are and then continue sometimes next week.

Once all the sort of peripheral witnesses are out of the way then it’s just the chief investigator which will be some time.

[40] The issue then came up as to the length of an adjournment and during the exchange Douglas presented a note from the doctoradvising that Heidi would not be able to return to court for two weeks. The trial judge expressed concern that two weeks was too long atwhich point Douglas suggested the following: The Court: My problem with it is that the note that you’re talking about talks about two weeks and Mr. Dahlem is talking aboutMonday morning. And I’m not willing to – to scrub out the – all of this week and next week. Mr. Amell: Oh, I don’t think I need a two weeks [sic] adjournment, Your Honour.

I just – this is just hitting me hard right now what’s– she doesn’t need to be here, I don’t think, for the voir dire stuff so I don’t think it has to be a two-week adjournment, Your Honour. An adjournment was granted from March 30, 2010 to April 6, 2010. It must be noted the adjournment was in response to Douglas’sstated needs but also reflected a Crown request. Heidi missed the rest of the voir dire. [41] The appellants say Douglas could not be the agent for Heidi and had no authority to make the decision she need not attend.

Shehad a right to be there, was denied that right, and was denied a fair trial as a result. The curative provision of s. 686(1)(b)(iv) should notbe called upon because she did not receive a fair trial. [42] The respondent says each of the appellants chose to represent themselves at trial and Douglas was merely the preferredrepresentative. He presented the entire case on behalf of the coaccused. Heidi did not question any witnesses or present any argumentsto the court. Heidi had told the judge during a pre-trial conference there may be times she would need to be away from the courtroomduring the trial.

The trial judge advised her against being absent but as it was a

summary conviction proceeding, she had the right tochoose not to be present. Her absence is not necessarily fatal contends the respondent. This was a procedural irregularity and, in thecircumstances, Heidi suffered no prejudice. The curative provision, s. 686(1)(b)(iv) of the Code, if necessary, should be called onbecause she was not prejudiced and the verdict would have been the same had the error not been made. It relies on R. v.

Khan, 2001SCC 86, [2001] 3 S.C.R. 823 at para. 16: 16 … [S]ince the procedural irregularities in issue would have been serious ones, it is appropriate to infer prejudice withoutrequiring in every case that the accused demonstrate prejudice. The inference may of course be rebutted and the test of prejudice underthat subsection should be the same as the no substantial wrong or miscarriage of justice, under s. 686(1)(b)(iii), which has been thesubject of extensive pronouncement by this Court. [43] It is clear Heidi’s right to attend the voir dire was breached.

Her medical emergency was not a stalling tactic nor an attempt todelay the proceedings. Given the operation of s. 802.1, she had the right to attend and an adjournment, in the circumstances, ought tohave been granted. This breach of Heidi’s rights may be cured by s. 686(1)(b)(iv) of the Code which provides that the Court of Appealmay allow a trial decision to stand where no harm results from the breach.

In my view, in the circumstances of this case, with Heidideferring to Douglas as the only spokesperson, no actual harm resulted from her missing a portion of the voir dire. [44] However, that does not end the matter. A second aspect of s. 686(1)(b)(iv) is whether the error affected the accused’s perceptionof the fairness of the trial to such an extent it would be inappropriate to apply the curative provision, see R. v. Walker, 2010 SKCA 84,362 Sask. R. 169 at paras. 31-32 and R. v. T. (L.W.), 2008 SKCA 17, 307 Sask. R. 246 at para. 28.

In my view, although no harm toHeidi was demonstrated, it would be very difficult in the circumstances of this case to say that a person with serious medical difficultiesrequiring immediate hospitalization would not have a negative perception of the administration of justice when an application for anadjournment for health reasons was rejected and she was required to be absent for much of the voir dire. [45] In R. v. T. (L.W.), the accused was inadvertently absent during a pre-trial telephone conference call.

His counsel was present onthe call and the issue of the accused’s absence from the call was not raised at the time by the judge, the Crown or defence counsel. Theissue discussed at the conference was the severance of charges and did not relate to facts or evidence. The Court restated the underlyingobjectives of the right of an accused to be present at trial at para. 23 and said as follows: 23 Two important objectives underlie the right of an accused person to be present at his or her trial. They were described by MartinJ.A. in R. v. Hertrich (1982), (ON CA), 67 C.C.C. (2d) 510 (Ont.

C.A.) at p. 537: The essential reason the accused is entitled to be present at his trial is that he may hear the case made out against him and, having heardit, have the opportunity of answering it: R. v. Lee Kun (1915), 11 Cr. App. R. 293. The right of the accused to be present at his trial,however, also gives effect to another principle. Fairness and openness are fundamental values in our criminal justice system. Thepresence of the accused at all stages of his trial affords him the opportunity of acquiring first-hand knowledge of the proceedings leadingto the eventual result of the trial.

The denial of that opportunity to an accused may well leave him with a justifiable sense of injustice.Indeed, in my view, an examination of the Canadian decisions shows that the latter principle is, in fact, the implicit and overridingprinciple underlying those decisions. [46] The Court also restated the principle that in these circumstances it is necessary to consider more than the question of prejudicewhen the accused is absent from his or her trial at para. 28: 28 The authorities also suggest that, in considering the application of s. 686(1)(b)(iv) in the circumstances of a case such as this one,it is necessary to consider more than the question of whether Mr.

T. was prejudiced by the fact he was not present for the severanceapplication. It is also necessary to consider whether, even in the absence of such prejudice, Mr. T.’s absence nonetheless damaged theperception or realities of the administration of justice more generally so as to warrant a refusal to apply s. 686(1)(b)(iv). Goodman J.A.made the point as follows at p. 52 of Cloutier:

... There may be cases, for example, where a trial judge excludes an appellant intentionally after it has been brought to his attention that such exclusion is contrary to the provisions of s. 577(1) [now s. 650(1)]. It may be that in such a case, the Court of Appeal is satisfied that an appellant suffered no real prejudice as a result of such exclusion.

Nevertheless, it seems to me that in such circumstances the Court of Appeal may refuse to exercise the discretion given to it under s. 613(1)(b)(iv) [now s. 686(1)(b)(iv)] to dismiss the appeal so that justice will not only be done but will be seen to be done. [ 47 ] In that case, the accused was represented by counsel and the Court said the accused had suffered no prejudice. On the larger issue of the impact of the accused’s absence on “either the reality or the perception of the administration of justice” (para. 32), the Court invoked the curative provision.

The Court reasoned that, because none of the parties present considered the problem of proceeding in the accused’s absence and defence counsel did not raise the issue until the appeal, the matters under consideration did not concern the facts, the evidence, or the particulars of the case and finally, because the call was being held only because defence counsel chose to make the application returnable on the first day of the trial, rather than in advance of that date as had been suggested by the trial judge who was wanting to avoid another adjournment, that in all of the circumstances the failure to comply with s. 650(1) of the Code did not negatively affect the administration of justice and thus the curative provision could be applied. [ 48 ] In the case before us, Heidi was not represented by counsel, her absence was raised immediately and repeatedly and she was absent for a considerable part of the voir dire .

Further, she was absent for arguments regarding whether her Charter rights were breached and some of this testimony was applied at trial. And, as set out earlier, because of the limitation imposed by s. 802.1 she had no one to represent her interests throughout much of the voir dire. [ 49 ] In Walker , the trial judge, in mid-trial, held a private off the record conversation with Crown and defence regarding the trial judge’s thoughts on the case. The accused was not present.

This Court found the situation harmed the perception of the administration of justice and said the curative provision could not be applied: 36 In my view, this is the sort of situation where larger concerns about the administration of justice operate to render s. 686(1)(b)(iv) inapplicable. The trial judge in this case no doubt acted innocently and there is no suggestion that she was biased or impartial in fact. However, this is not the point. The perception of fairness and impartiality is an essential characteristic of the criminal justice system and it must be guarded rigorously.

The decision to provide counsel with an assessment of the case and inquire about the state of plea bargaining necessarily worked to significantly undercut the important notion that justice must not only be done, but must be seen to be done. The judge was presiding over a criminal trial. It was critical that she be perceived as being wholly impartial and as not having prejudged the outcome of the proceedings. … 38 … the trial judge’s actions in this case were sufficiently ill advised that it would not be appropriate to invoke s. 686(1)(b)(iv).

If the criminal justice system is to be perceived as being fair and impartial, judges cannot convene private and unrecorded meetings in mid- trial for the purpose of expressing their views about the substance of the proceedings and making inquiries about plea bargaining. [ 50 ] In my view, the breach in this case is at least as serious as that in Walker . The Ontario Court of Appeal endorsed Walker on this point, see R. v. Schofield , 2012 ONCA 120 , 286 C.C.C. (3d) 555. Heidi ought to have been granted an adjournment and her appeal must succeed.

(5) The fitness of the sentences imposed [ 51 ] Turning now to the fitness of the sentences of Douglas and Robert. As noted at the outset, Robert has already served his sentence and we are of the view the sentence imposed was not unfit. [ 52 ] Douglas argues his sentence was overly harsh. He says the trial judge failed to consider the absence of a criminal record which led the judge to overemphasize the sentencing objectives of general deterrence and denunciation while ignoring the objective of rehabilitation.

He further takes issue with the trial judge’s conclusion that “greed and personal advancement” were the motivations for the criminal behaviour leading the trial judge to consider motivation as an aggravating factor. He says his behaviour was motivated by a genuine desire to better understand the law and this desire was demonstrated by the fact he contacted his accountant to seek advice and he declared income from other sources.

He says he was really trying to comply with the law to the best of his understanding. [ 53 ] According to Douglas’s argument, a conditional sentence ought to have been imposed and such a sentence would have met the sentencing objectives of deterrence and denunciation for a first-time offender. He continues, arguing his genuinely held beliefs, although errors of law, should not have been ignored as mitigating factors. He said there was a lack of evidence of fraudulent intent on his part and this mitigating factor was completely ignored by the trial judge. He relies on R. v.

Klundert , 2011 ONCA 646 , 107 O.R. (3d) 561, where a conditional sentence was imposed. [ 54 ] The trial judge noted the pre-sentence report was of some concern to him because in this report Douglas minimized his actions and blamed others, including the CRA and the court, for his predicament. The trial judge took notice of the numerous letters in support of the appellants.

The trial judge went on to review the sentencing principles and the aggravating and mitigating factors and particularly noted the fraud amounted to approximately $190,000. [ 55 ] The trial judge estimated Douglas was drawing some $15,000 per month from his business without paying any taxes on that amount. The same time he was drawing this salary, Douglas applied for and received thousands of dollars in GST and child tax rebates. The trial judge found the receipt of these latter funds was “nothing short of morally and legally reprehensible”.

This was particularly egregious because these rebates were from programs designed to assist poor children and poor families (p. 8 of sentencing transcript). The trial judge found the scheme to perpetrate the fraud was long-term and premeditated. He saw it not as a case of tax avoidance, but of tax evasion motivated by greed and personal advancement.

[ 56 ] He referred to authorities and, in particular, was persuaded by the sentence imposed in R. v. Sydel , 2006 BCPC 346 , [2006] 5 C.T.C. 88, from the British Columbia Provincial Court where there was a larger evasion and a sentence of 18 months in jail was imposed. Seemingly using that authority as a benchmark, he went on to impose a sentence of 16 months incarceration with one month of remand credit. [ 57 ] I am satisfied the sentence imposed was not unfit.

Although the trial judge did not reference Douglas’s lack of criminal record, as noted by the respondent the pre-sentence report mentions none of the parties had a criminal record so clearly the judge was aware of the fact. It was clearly open to the trial judge to find on the evidence that “greed and personal advancement” were the motivations for Douglas’s behaviour. He ignored his accountant’s tax advice and refused the opportunity to apply for an advance ruling.

It was also open to the trial judge to suspect Douglas’s remorse was less than sincere given the very lateness—a few days before sentencing and well after trial—of his expression of remorse. [ 58 ] With regard to the argument a conditional sentence ought to have been posed, it must be noted that at the sentencing hearing where he was represented by counsel, his counsel indicated a period of incarceration was in order while also arguing for a conditional sentence. Further, reliance on Klundert is misplaced.

In that case, the court found a lack of fraudulent intent which was clearly not the finding of the trial judge below. Douglas was the mastermind who dragged his wife and father into the scheme. He very deliberately chose to ignore professional advice and ignore the opportunity to get an advance ruling. He took advantage of social programs not designed for someone earning the amount of income he was drawing from the business. There was no remorse demonstrated until the eve of the sentencing hearing. The trial judge was correct to be sceptical.

The federal tax evasion was approximately $190,000 and there was a very significant, but unproven, provincial revenue loss. The

summary conviction appeal court judge was correct to uphold the sentence imposed by the trial judge. [ 59 ] Therefore, the appeals of conviction and sentence of Douglas and Robert are dismissed. The appeal of Heidi is allowed, her convictions set aside and a new trial ordered. DATED at the City of Regina, in the Province of Saskatchewan, this 3 rd day of May, 2013. “Lane J.A.” Lane J.A. I concur “Cameron J.A.” Cameron J.A. I concur “Herauf J.A.” Herauf J.A.