4. International Tax Enforcement in Canada

In the Supreme Court of Canada case R v McKinlay Transport Ltd, [1990] 1 SCR 627 [McKinlay], Wilson J stated that s 150(1) of the Income Tax Act, RSC 1985, c 1 (5th Supp) [Act], is based on the principle of self-reporting and self-assessment. This case had many important elements. For example, the Court held that the requirement to produce documents does not violate an individual’s rights, as an unreasonable search and seizure, as protected by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. Moreover, Wilson J, McKinlay, ibid at 649, indicated that “a taxpayer may have little expectation of privacy in relation to his business records relevant to the determination of his tax liability.”

Act, above note 1. A non-resident person or corporation that has a taxable capital gain, sells taxable Canadian property, or is subject to tax under Part I on taxable income earned in Canada must file a tax return similarly to a resident. Section 150(2) is directed at preventing abuse and states:

Every person, whether or not the person is liable to pay tax under this Part for a taxation year and whether or not a return has been filed under subsection (1) or (3), shall, on demand sent by the Minister, file, within such reasonable time stipulated in the demand, with the Minister in prescribed form and containing prescribed information a return of the income for the taxation year designated in the demand.

Failure to comply with a demand can have serious consequences. Section 238(1) states:

Every person who has failed to file or make a return as and when required by or under this Act or a regulation . . . is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to (a) a fine of not less than $1,000 and not more than $25,000; or (b) [such a fine] . . . and imprisonment for a term not exceeding 12 months.

There is also the possibility that a taxpayer could be charged with the offence of willful tax evasion under s 239(1)(d) of the Act. Section 239(1) states:

Every person who has . . . (d) wilfully, in any manner, evaded or attempted to evade compliance with this Act or payment of taxes imposed by this Act . . . is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to (f) a fine of not less than 50%, and not more than 200%, of the amount of the tax that was sought to be evaded, or (g) both the fine described in paragraph 239(1)(f) and imprisonment for a term not exceeding 2 years.

Furthermore, s 239(2) states:

Every person who is charged with an offence described in subsection 239(1) . . . may, at the election of the Attorney General of Canada, be prosecuted on indictment and, if convicted, is, in addition to any penalty otherwise provided, liable to (a) a fine of not less than 100% and not more than 200% of . . . the amount of the tax that was sought to be evaded, and . . . (b) imprisonment for a term not exceeding 5 years.

[1990] 2 SCR 338 at 350.

Act, above note 1, s 230(1). For CRA policy regarding the retention and destruction of books and records, see CRA, Information Circular 78-10R5, “Books and Records Retention/Destruction” (June 2010). For a historical review, see also Michael G Quigley, “Controlling Tax Information: Limits to Record-Keeping and Disclosure Obligations” (1999) 47 Canadian Tax Journal 1.

Act, above note 1, s 230(1). For a case dealing with judicial review of a requirement to keep adequate books and records of a business, see Merchant (2000) Ltd v Canada (AG), 2000 CanLII 15779 (FC).

Act, above note 1, s 238(2). See, for example, Sidhu v MNR (1993), 93 DTC 5453 (FCA).

There is a great deal of literature on the scope of s 231.1. See, for example, Colin Campbell, Administration of Income Tax 2015 (Toronto: Carswell, 2015); Ed Kroft, “Recent Developments in CRA’s Reach for Information — Questions You Want Answered” (Paper delivered at the Ontario Tax Conference, 24 October 2011) [unpublished]; Carole Benoit, Susan Betts, & Andrew Kingissepp, “Taxpayer Access to Government Papers and Government Access to Taxpayer Papers” in 2012 Tax Dispute Resolution Conference Report: Proceedings of the Tax Dispute Resolution, Compliance, and Administration in Canada Conference (Toronto: Canadian Tax Foundation, 2013) 19:1 [2012 Tax Dispute Resolution Conference Report].

Act, above note 1, s 231.1(1). See James Richardson & Sons v MNR (1982), 82 DTC 6204 (FCA) [Richardson]; AGT Ltd v Canada (AG) (1996), 96 DTC 6388 (FCTD), aff’d (1997), 97 DTC 5189 (FCA) [AGT Ltd CA], leave to appeal to SCC refused, [1997] SCCA No 314.

Act, above note 1, s 231.3(1). A warrant under the Act must be issued by a judge of a provincial superior court or of the Federal Court, as opposed to a judge of an inferior court.

Criminal Code, RSC 1985, c C-46, s 487. Regular warrants under s 487 may be issued by a justice of the peace or other judicial officer. A warrant under section 487.01 of the Criminal Code, ibid, more commonly referred to as the general warrant provision, must be issued by a provincial court judge.

Act, above note 1, s 231.4(1). See the decisions in Del Zotto v Canada (MNR), [1997] 2 FC 428 (TD) [Del Zotto TD], and Strayer J’s dissent in the appeal, [1997] 3 FC 40 (CA) [Del Zotto CA], leave to appeal to SCC granted, [1999] 1 SCR 3 [Del Zotto SCC].

Ibid, s 231.7(1). In the recent decision Canada (National Revenue) v BP Canada Energy Co, 2015 FC 714 [BP Canada], the Minister brought an application to the Federal Court seeking an order to compel BP Canada Energy Company to comply with a request to produce records with respect to an audit being carried out by CRA. The Minister had sought production of tax accrual or tax reserve working papers and issues lists prepared by BP’s in-house accounting personnel that indicated certain tax positions and the possibility that there may be tax liabilities by way of contingent liabilities. After BP objected to producing the documents as requested by way of a request under s 231.1(1) of the Act, above note 1, the Minister sought a compliance order under s 231.7(1) of the Act that would force BP to provide the documents. BP argued that the Minister was involved in a fishing expedition and that producing the working papers would offend the fundamental tenets of a self-reporting tax system. The court disagreed and found that the working papers and issues lists were compellable. Justice Campbell of the Federal Court concluded, BP Canada, ibid at para 37, that he was “unable to give any weight to BP Canada’s arguments.” He further added, ibid at para 38, that an “audit is not [a fishing] expedition.” Justice Campbell dismissed out of hand the bad faith argument raised by BP. It was his view, ibid at para 44, that “no supportable finding can be made on the existing evidence that the Minister’s officials made the demands for the Issues List in bad faith.” The court granted the compliance order under s 231.7(1) of the Act for the production of BP’s working papers as requested by the Minister. See also Canada (National Revenue) v Marshall, 2006 FC 279, where the Minister was successful in obtaining a compliance order, and for the opposite result, Canada (National Revenue) v Chamandy, 2014 FC 354.

2003 FCA 307 at para 20.

See McKinlay, above note 1; Fraser Milner Casgrain LLP v MNR, 2002 FCT 912; Richardson, above note 12; NM Skalbania Ltd v R (1989), 89 DTC 5495 (BC Co Ct); AGT CA, above note 12; MNR v Sand Exploration Ltd (1995), 95 DTC 5469 (FCTD); Artistic Ideas Inc v Canada Revenue Agency, 2004 FC 573, aff’d 2005 FCA 68.

2003 FCT 102.

Pacific Network Services Ltd v MNR, 2002 FCT 1158 [Pacific Network].

2 May 1975, Can TS 1976 No 30 (as signed on 2 May 1975, and amended by the protocols signed on 16 January 1987, 30 November 1995, and 2 February 2010), online: www.​fin.​gc.​ca/​treaties-conventions/​france_​-eng.​asp [Canada–France Tax Treaty].

Ibid at para 25. Compare with the decision of the Federal Court, Trial Division in Montreal Aluminum Processing Inc v Canada (AG) (1991), 91 DTC 5424 (FCTD), and the Federal Court of Appeal’s overturning of the Trial Division’s decision in Montreal Aluminum Processing Inc v Canada (AG) (1992), 92 DTC 6567 (FCA).

Act, above note 1, s 231.7(1). See Canada (National Revenue) v Revcon Oilfield Constructors Incorporated, 2015 FC 524; Canada (National Revenue) v SML Operations (Canada) Ltd, 2003 FC 868 [SML Operations]; Canada (National Revenue) v Lee, 2015 FC 634. In SML Operations, ibid at para 14, Tremblay-Lamer J set out the three requirements that must all be satisfied before a judge will exercise the discretion to order a person to provide the information or documents sought by the Minister:

See, for example, Canada (National Revenue) v Money Stop, 2013 FC 133; Canada (National Revenue) v Vallelonga, 2013 FC 1155.

Del Zotto SCC, above note 22; Charter, above note 1.

See Section 3, above in this chapter.

See Section 4, above in this chapter.

eBay Canada Ltd v Canada (National Revenue), 2007 FC 930 [eBay FC]. Justice Hughes issued reasons and partial judgment on 18 September 2007 dismissing eBay’s principal arguments, but he delayed releasing his final decision dealing with whether there was enough evidence that the Minister required the information to audit Canadian Power Sellers for compliance with the Act until after the release of the Federal Court of Appeal’s decision in MNR v Greater Montreal Real Estate Board, 2007 FCA 346 [Greater Montreal], leave to appeal to SCC refused, [2007] SCCA No 605. Following its release, and accepting written submissions from the parties in the case, Hughes J held that he was bound by the Federal Court of Appeal’s decision in Greater Montreal, ibid, regarding the “good faith audit” test and that since the Minister in his view had met the test, his earlier ex parte order authorizing the requirement was affirmed but in amended form to include the information regarding the Power Sellers.

Canada, Department of Finance, The White Paper: Tax Reform 1987 (Ottawa: Department of Finance, 1987). See eBay CA, above note 67 at para 44.

26 September 1980 (as amended by the protocols signed on 14 June 1983, 23 March 1984, 17 March 1997, 29 July 1997, and 21 September 2007) [Canada–US Tax Treaty]; Fidelity Investments, above note 80 at paras 18–19.

2013 FC 291, aff’d 2014 FCA 10.

Sanctions and penalties available under US tax laws for the failure to produce foreign-based information are discussed in Chapter 5.

Act, above note 1, s 239. See also William Innes & Ralph Cuervo-Lorens, Tax Evasion (Toronto: Carswell, 1995) (loose-leaf); Johanne Charbonneau, “Tax Evasion from the Government’s Perspective” in 2012 Tax Dispute Resolution Conference Report, above note 11 at 22:1–22:12; Craig C Sturrock & Jessie Meikle-Kahs, “Tax Evasion from the Practitioner’s Perspective” in 2012 Tax Dispute Resolution Conference Report, above note 11 at 23:1–23:14; Marie Comiskey & Matthew Sullivan, “Avoidance, Deception and Mistake of Law: The Mens Rea of Tax Evasion” (2005–2006) 51 Criminal Law Quarterly 303.

Ibid at para 56. See Act, above note 1, s 239(2).

Ibid at para 96. For several different Charter rulings, see R v Chen, 2007 ONCJ 177; R v Martin, 2015 NSSC 8; R v Mori, [2015] DTC 5081 (Ont Ct J); Stanfield v MNR, 2005 FC 1010; R v McCartie, 2015 BCPC 254; R v Dolinski, 2014 ONSC 681; R v McCartie, 2015 BCPC 69.

In the post-Jarvis world, much has been written on the case’s impact: see, for example, David Stratas, “Crossing the Rubicon: The Supreme Court and Regulatory Investigations” 6 Criminal Reports (Sixth Series) 74; Tim Quigley, “The Impact of the Charter on the Law of Search and Seizure” (2008) 40 Supreme Court Law Review, 2d, 117; Jeffrey S Clarke, “R. v. Jarvis and Corporations” (2008) 54 Criminal Law Quarterly 167; David M Porter, “A Contextual Analysis of Section 8 Charter Rights in Regulatory Audits” (2002) 46 Criminal Law Quarterly 341; Chris Sprysak, “Life after Jarvis — Just How Much Help Must You ‘Voluntarily’ Give the Canada Revenue Agency?” (2005–2006) 43 Alberta Law Review 713; Christopher Sherrin, “Distinguishing Charter Rights in Criminal and Regulatory Investigations: What’s the Purpose of Analyzing Purpose?” (2010) 48:1 Alberta Law Review 93; Croft Michaelson, “The Limits of Privacy: Some Reflections on Section 8 of the Charter” (2008) 40 Supreme Court Law Review, 2d, 87.

2005 BCPC 398.

Act, above note 1, s 239(1). See R v Burko, 2011 ONSC 479 [Burko]. In tax evasion cases, it is up to the Crown to prove beyond a reasonable doubt that an accused voluntarily performed an act or engaged in a course of conduct that either attempted to avoid or avoided the payment of tax owing under the Act: see R v Klundert (2004), 187 CCC (3d) 417 (Ont CA) [Klundert].

Ibid, s 239(1)(d). For an example of a decision where the criminal conviction was dependent upon the proof of mens rea in the form of willful blindness, see R v Tempelman, 2006 ONCJ 55.

As a succinct way to summarize the actus reus and mens rea of the crime of tax evasion, Myers J in R v Porisky & Gould, 2012 BCSC 67 at para 14, referred to the charge to the jury in Klundert, above note 121, wherein the Ontario Court of Appeal had stated as follows:

In most cases of tax evasion, the trial judge will adequately describe the elements of the offence by instructing the jury that they must be satisfied beyond a reasonable doubt that the accused:

• did something or engaged in a course of conduct that avoided or attempted to avoid the payment of tax imposed by the Act;
• knew there was tax imposed by the Act; and
• engaged in the conduct for the purpose of avoiding or attempting to avoid payment of tax imposed by the Act or knowing that avoiding payment of tax imposed by the Act was a virtual certain consequence of his actions.

Act, above note 1, ss 239(1) & 239(2). See R v Bulua, 2006 BCSC 1234; R v Andrus, 2013 BCPC 160.

Criminal Code, above note 14, s 718:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a)

to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

 

(b)

to deter the offender and other persons from committing offences;

 

(c)

to separate offenders from society, where necessary;

 

(d)

to assist in rehabilitating offenders;

 

(e)

to provide reparations for harm done to victims or to the community; and

 

(f)

to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

 

Criminal Code, above note 14, s 380. See R v Watts, 2015 ONSC 5597.

Less experienced Crown prosecutors will rely on the Department of Justice’s Public Prosecution Service of Canada Deskbook (Ottawa: AG of Canada, 2014), online: www.​ppsc-sppc.​gc.​ca/​eng/​pub/​fpsd-sfpg/​fps-sfp/​tpd/​d-g-eng.​pdf, to provide guidance on and a framework for the laying of charges, resolution discussions, and determining whether a case should proceed to trial.

Subtitle A of Title V of the Hiring Incentives to Restore Employment Act of 2010, Pub L No 111–147, enacted on 18 March 2010 [FATCA].

Agreement between the Government of Canada and the Government of the United States of America to Improve International Tax Compliance through Enhanced Exchange of Information under the Convention between Canada and the United States of America with respect to Taxes on Income and on Capital (5 February 2014), online: www.​fin.​gc.​ca/​treaties-conventions/​pdf/​FATCA-eng.​pdf [Canada–US IGA].

See Allison Christians & Arthur J Cockfield, “Submission to Finance Department on Implementation of FATCA in Canada: Submission on Legislative Proposals relating to the Canada–United States Enhanced Tax Information Exchange Agreement” (10 March 2014), online: http://​dx.​doi.​org/​10.​2139/​ssrn.​2407264; Allison Christians, “Country Report: Canada” in Eleonor Kristoffersson et al, eds, Tax Secrecy and Tax Transparency: The Relevance of Confidentiality in Tax Law, Part 1 (Frankfurt am Main: PL Academic Research, 2013) 209; Arthur J Cockfield, “Protecting Taxpayer Privacy Rights under Enhanced Cross-border Tax Information Exchange: Toward a Multilateral Taxpayer Bill of Rights” (2010) 42 University of British Columbia Law Review 420; Arthur J Cockfield, “FATCA and the Erosion of Canadian Taxpayer Privacy: Report to the Office of the Privacy Commissioner of Canada” (1 April 2014), online: http://​papers.​ssrn.​com/​sol3/​papers.​cfm?​abstract_​id=​2433198.

Act, above note 1, s 241(1). See George Alatopulos, Bernardo Elizondo Rios, & Xiaolu Su, “Legislative and Regulatory Privacy Considerations in the Context of the Application of, and Amendments to, Section 241 of The Income Tax Act” Confidentiality of Taxpayer Information (Taxnet Pro) (November 2014) 1.

[1993] 3 SCR 430 at 444.

Bill C-31, Serious Offences Amendment to Section 241 of the Income Tax Act, 2nd Sess, 41st Parl, 2014; Act, above note 1, s 241(9.5).

See Alatopulos, Rios, & Su, above note 138.

Canada–United States Enhanced Tax Information Exchange Agreement Implementation Act, SC 2014, c 20; Economic Action Plan 2014 Act, No 1, SC 2014, c 20 [latter two acts together: Implementation Act]; Hillis and Deegan, above note 153 at paras 1 and 3.

Christians & Cockfield, above note 137 at 1–2.

See R v Lavallee, Rackel and Heintz, 2002 SCC 61. Section 232 of the Act, above note 1, contains the solicitor-client privilege protection, and section 232(1), ibid, defines solicitor-client privilege as follows:

the right, if any, that a person has in a superior court in the province where the matter arises to refuse to disclose an oral or documentary communication on the ground that the communication is one passing between the person and the person’s lawyer in professional confidence, except that for the purposes of this section an accounting record of a lawyer, including any supporting voucher or cheque, shall be deemed not to be such a communication.

For further discussion on solicitor-client privilege, see Brian R Carr, “Solicitor-Client Privilege” in Report of Proceedings of the Sixty-Second Tax Conference (Toronto: Canadian Tax Foundation, 2011) 7:1; Dan Misutka, “Select Issues related to Solicitor-Client Privilege” in 2012 Tax Dispute Resolution Conference Report, above note 11, 7:1; Adam M Dodek, Solicitor-Client Privilege (Markham, ON: LexisNexis, 2014); Canada (Procureur général) c Chambre des notaires du Québec, 2014 QCCA 552.