Constitution Act, 1982

With respect to a submission that the sixteen-month delay between the announcement in the November 1981 Budget of the repeal of the income averaging annuity contract provisions and the enactment of the implementing legislation was excessive and, therefore, was contrary to the rule of law, Noël J. noted that the courts only were able to determine whether an asserted parliamentary privilege (in this instance, the budget process) was necessary to the legislative body's capacity to function, and was not able to examine the content of a particular exercise of a valid privilege. Because it is well recognized that the budgetary process, and specifically the practice of making taxation measure applicable as of the date of the ministerial announcement, is well within the framework of parliamentary privilege, in this case, the particular exercise of that privilege (i.e., the sixteen-month delay) could not be challenged.

S.34 of the Excise Tax Act, which the trial judge found to give arbitrary administrative discretion to the Minister and to thus be contrary to the rule of law, was held by the Court of Appeal not to be contrary to the rule of law. However the determination by the Minister of the "fair" price of goods was quashed, because he omitted to consider relevant material.

The search and seizure procedures described in s. 231.3 are acceptable and within the reasonable limits prescribed by law under s. 1 of the Charter.

The fact that s. 118(1) at the time provided a greater benefit to an unmarried couple with a child than to a married couple with a child could not be characterized as discrimination based on religion contrary to s. 15 of the Charter; nor did it interfere with either's religious belief or practice contrary to s. 2(a) of the Charter.

The taxpayer's statement of claim, which sought a reduction in his tax on the basis that part of those taxes would be used to finance abortions, did not disclose any reasonable cause of action.

The taxpayer (a Quaker) who paid 10.5% of her tax liability to the Peace Tax Fund rather than to the Receiver General, was not entitled to a declaration that being required to pay the full amount of her tax liability would infringe her rights under ss.2(a) and 15 of the Charter.

Different methods of taxing income from a business or employment did not place any direct restrictions on the appellants' freedom of expression under s. 2(b) or freedom of association under s. 2(d).

The requirement under s. 151 to calculate and estimate taxes owing does not breach the right to freedom of opinion.

Contributions paid by the taxpayer (a former resident of the U.K. and a dual citizen of Canada and the U.K.) to the U.K. Inland Revenue Department in order to maintain rights to a future old age pension in the U.K. did not qualify as non-business income taxes because the payments were made on a voluntary basis. Campbell T.C.J. quoted Lawson v. Interior Tree, Fruit and Committee of Direction, [1931] S.C.R. 357 that "A tax is a levy, enforceable by law imposed under the authority of a legislature imposed by public body and levied for a public purpose".

Campbell T.C.J. stated (at p. 766) that:

"The failure of the Act to include a deduction or tax credit for contributions to a foreign insurance plan in no way interferes with the Appellant's right to move within Canada, to leave or to pursue a livelihood here."

The Proceeds of Crime (Money Laundering) and Terrorist Financing Act required law firms to verify the identity and record the identity of clients for whom they acted as "financial intermediaries," collect and retain financial records when receiving or paying funds for purposes other than professional fees, disbursements, expenses or bail, and allowed the anti-money laundering a federal agency (FINTRAC) to make warrantless reviews of such records subject to the firm following a specified procedure for claiming solicitor-client privilege. Non-compliance was punishable by imprisonment.

The Court largely confirmed the findings below that the provisions should be variously struck (in the case of the search and seizure provisions), or read down to exclude lawyers (for record keeping etc.). The impugned provisions breached the clients' rights against unreasonable search and seizure (see summary under Charter, s. 8).

The majority also found that the provisions contravened Section 7. One of the elements of a lawyer's duties is commitment to the client's cause - i.e. "ensuring that a divided loyalty does not cause the lawyer to 'soft peddle' his or her defence of a client" (para. 103, quoting Neil, 2002 SCC 70, at para. 70). Cromwell J stated (at para. 84):

We should, in my view, recognize as a principle of fundamental justice that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients' causes. Subject to justification being established, it follows that the state cannot deprive someone of life, liberty or security of the person otherwise than in accordance with this principle.

Metzger J. rejected a submission of the accused that as the Crown did not produce the original Income Tax Act but instead utilized a commercial consolidation of the Act published by CCH Canadian Limited, the accused was unable to make a full answer and defence, contrary to section 7 of the Charter.

Rothstein J.A., in rejecting an argument that the GAAR was contrary to section 7, stated that there was no suggestion in Gosselin v. Quebec (A.G.), 2002 SCC 84 "that section 7 is broad enough to encompass economic rights generally or, in particular, in respect of reassessments of income tax" and, in rejecting an argument that the "abuse" test in subsection 245(4) was unconstitutionally vague, stated that "subsection 245(4), having been interpreted and applied on numerous occasions by the Courts, is capable of supporting legal debate and coherent judicial interpretation".

All statements made by the taxpayer to Revenue Canada were not admissible given the failure of Revenue Canada to caution him as to his rights and inform him that he was under investigation for tax evasion. However, there is a distinction for section 8 purposes between oral admissions made out of compulsion and documents containing communications made before such compulsion and independently of it. Various documentary evidence did not qualify as derivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the compelled statements of the accused. Accordingly, there was no breach of s. 7 of the Charter in obtaining such documentary evidence.

The trial judge had erred in agreeing to set down the question, as to whether s. 245 of the Act was unconstitutionally vague, without the benefit of adjudicative facts which had given rise to the application of s. 245 in the case before him.

An enquiry under s. 231.4 into the financial affairs of a taxpayer ("Del Zotto") did not violate s. 7 of the Charter given that Del Zotto was not subpoenaed to attend or to give evidence or produce documents at the enquiry, and that the lawyer and business executive who was served with such a subpoena did not (unlike Del Zotto) face criminal charges under the Act. Accordingly, there was no violation of the "case to meet" and "right to silence" principles.

The requirement to appear and to bring documents was not sufficiently intrusive to justify imposing the Hunter standards under the aegis of section 8 of the Charter.

A retroactive amendment to s. 110(1)(f)(iii) of the Act was not contrary to ss.7 and 15 of the Charter.

The taxpayer's rights under s. 7 of the Charter were not infringed by s. 167(5)(a) of the Income Tax Act.

The laying of tax evasion charges approximately two years after the Minister first reassessed the taxpayer for the taxation years in question was reasonable given that "evidence needed to make a tax assessment is not of the same high standard required for criminal prosecution", and the fact that investigation continued up to the time of the laying of the charges.

A demand under s. 231.2(1)(a) of the Act for information the disclosure of which potentially could prejudice the taxpayer in relation to charges which had previously been brought against him under the Narcotics Act was contrary to section 7 of the Charter given that there was no prohibition against Revenue Canada communicating the information obtained to the police.

Revenue Canada officials obtained a warrant to search the residence of the appellant and then, six months later, obtained an appointment for a hearing pursuant to s. 231.4(2). An application to quash the hearing was dismissed, because the taxpayer had made no specific claim to immunity in respect of any specific question, and had not shown any basis upon which any answer might tend to inciminate him with respect to any specific criminal offence.

With respect to s. 8 of the Charter, no search or seizure was involved, and the procedure under s. 231.4 was not unreasonable.

Where the Department of National Revenue had acted in gross disregard of the rights of the accused, the proceedings against the accused were stayed, for to permit the prosecution to proceed would not be in accordance with fundamental principles of justice.

S.7 cannot be relied upon where infringement of the individual's liberty or security, if any, does not result from the operation of Canadian law, but solely from the operation of Bahamian law in the Bahamas.

The Proceeds of Crime (Money Laundering) and Terrorist Financing Act required law firms to verify the identity and record the identity of clients for whom they acted as "financial intermediaries," collect and retain financial records when receiving or paying funds for purposes other than professional fees, disbursements, expenses or bail, and allowed the anti-money laundering a federal agency (FINTRAC) to make warrantless reviews of such records subject to the firm following a specified procedure for claiming solicitor-client privilege.

The Court largely confirmed the findings below that the provisions should be variously struck (in the case of the search and seizure provisions), or read down to exclude lawyers (for record keeping etc.). The impugned provisions breached the clients' rights against unreasonable search and seizure. The statutory accommodations for privilege in the Act were less robust than conventional solicitor-client privilege. For example, privilege could be lost if not asserted on a timely basis, which was found in Lavallee to be unacceptable. The Minister argued that Lavallee applied where law enforcement officials were seeking evidence of criminal wrongdoing, and not in connection with a regulatory compliance regime. The immediate problem with this position was that the Act was expressly aimed at finding criminal wrongdoing, and threatened imprisonment of lawyers for non-compliance.

Moreover, the bar in Lavallee against erosions of privilege was not confined to a criminal context. Cromwell J stated (at para. 38) "the reasonable expectation of privacy in relation to communications subject to solicitor-client privilege is invariably high, regardless of the context," and quoted with approval the statement of Arbour J in Lavalee that "all information protected by the solicitor-client privilege is out of reach for the state."

He further noted (at para. 55) that one of the objectionable features of the procedure for claiming privilege under the Act was that it had to be asserted on behalf of a named client (stating that "the name of the client may itself be (although is not always) subject to solicitor-client privilege") and further stated that "the same ... may be said about the obligation of the lawyer under s. 64(10) to provide the authorities with the latest known address for the client."

The taxpayer had been convicted of over 30 GST-related offences. In the course of appealing the related reassessments, she moved, on Charter grounds, to exclude from evidence any information the Minister obtained from Requests for Information, arguing that the RFIs were made in the course of a criminal investigation.

The trial judge dismissed the taxpayer's motion, finding that the situation involved a concurrent criminal investigation and audit. Trudel JA further added (at para. 9):

The Judge's legal finding accords with Jarvis and with the self-assessment and the self-reporting nature of the income tax regime. Whether the CRA could properly use such documents to prosecute the appellant for criminal offences under the ETA is irrelevant to the current civil proceedings.

In any event, even if the taxpayer were correct that her rights were breached, it was "at best a technical breach" which did not call for a remedy under s. 24(2) of the Charter (para. 9).

The respondent ("Jakabfy") was a lawyer who received a Request from the Minister for information relating to his clients' sale of a property. Claiming solicitor-client privilege pursuant to his clients' instructions, he refused to disclose the documents without a court order. Zinn J found that the documents in question did not relate to legal advice and therefore granted the Minister's requested order, but agreed with Jakabfy that he should not have costs awarded against him.

In the course of his reasons, Zinn J stated:

Counsel for the Minister ... brought to our attention the decision of the Québec Superiour Court in Chambre des notaires du Québec c. Canada (Precureur général), 2010 QCCS 4215, [2010 JQ 8868] which held that sections 231.2 and 231.7 and the definition of "solicitor-client privilege" in subsection 232(1) of the Income Tax Act were contrary to sections 7 and 8 of the Canadian Charter of Rights and Freedoms and are of no force and effect as against Quebec notaries and lawyers with respect to documents and information protected by "professional secrecy." That decision is under appeal.

This Court declines to follow that decision for three reasons. First, a decision of the Québec Superior Court is not binding on this Court. Second, the decision appears to rely heavily on the professional obligations of notaries and lawyers set out in their respective Codes of Professional Conduct, which is not applicable to the Respondent. Third, and most importantly, there is no "professional secrecy" or privilege attaching to the requested documents and information in Ontario jurisprudence.

The trial judge had erred in excluding evidence obtained by Revenue Canada given that the auditors were not shown to have obtained their information in the course of an investigation rather than an audit.

An investigation by CCRA of the taxpayer was not transmuted into a criminal investigation until the auditor met with Special Investigations and referred the file to them for their consideration. Reilly J. noted (at p. 5219) that:

"The mere fact that the audit was provoked as a result of suspicion of non-compliance does not turn it into an investigation to determine penal liability."

The applicants received letters entitled Requirement to Provide Information and Documents With Respect to Donations Made For Charitable Organizations

The record as a whole including testimony of CCRA investigators indicated that the predominant purpose of the investigation giving rise to the Requirements was prosecution of the applicants for tax evasion. The Requirements issued to the individual applicants were ordered to be quashed, whereas those issued to the corporate applicants were upheld given that the privacy interests of corporate entities are minimal as compared with those of individuals.

In addition to other defects that potentially could be cured by a modest judicial redrafting of the provision, section 488.1 of the Criminal Code was fundamentally flawed in that it failed to ensure that clients were given a reasonable opportunity to exercise their constitutional prerogative to assert or waive their privilege but, instead, established a procedure whereby the privilege could be lost if the lawyers whose law offices were being searched did not advance claims of solicitor-client privilege on a timely basis. Arbour J stated (at para. 24):

It is critical to emphasize here that all information protected by the solicitor-client privilege is out of reach for the state. It cannot be forcibly discovered or disclosed and it is inadmissible in court. It is the privilege of the client and the lawyer acts as a gatekeeper, ethically bound to protect the privileged information that belongs to his or her client. Therefore, any privileged information acquired by the state without the consent of the privilege holder is information that the state is not entitled to as a rule of fundamental justice.

Accordingly, the proper course of action was to declare section 488.1 unconstitutional and strike it down pursuant to section 52 of the Constitution Act, 1982.

The photocopying by a Revenue Canada auditor of notes made by an accountant in his interview with the taxpayer which the auditor obtained from an empty office at the time the accountant was out of town was not authorized by s. 231.1(1). Sharlow J.A. stated (at p. 5114) that "one might question whether an auditor can be said to have exercised his powers of investigation at a 'reasonable time' if he takes a document from an accountant's private office when he knows the accountant is out of town". Furthermore, because the taxpayer had a reasonable expectation of privacy (notwithstanding that "a taxpayer's expectation of privacy in an accountant's notes recording personal information are at the low end of the scale"), there was a breach of the taxpayer's rights under s. 8 of the Charter. The appropriate remedy under s. 24 of the Charter was exclusion of the notes as evidence given that the notes were not relied upon to justify the reassessments of the taxpayer.

Although Revenue Canada investigators improperly had not informed the taxpayer that he was being investigated for tax evasion, this failure in their evidence-gathering process did not boot-strap Revenue Canada into a position where they obtained a search warrant that would otherwise be unobtainable. In particular, the documents pre-existed the improper audit investigation, they were all readily discoverable, they were real evidence, they were reliable and formed part of a self-reporting scheme. Accordingly, there was no s. 8 breach.

The taxpayer successfully argued that because the effect of s. 176(1) was to make their tax return publicly available, such requirement entailed an unreasonable seizure contrary to s. 8 of the Charter. S.176(1) was struck down in its entirety.

The evidence collected by Revenue Canada auditors respecting the taxpayer was excluded because, from the start, the evidence had been gathered in connection with an investigation by Revenue Canada of the underground economy including, in this case, the sale of used cars.

Revenue Canada was unable to use in prosecution documents and statements that Special Investigations had obtained without letting the accused know (and, in fact, misleading him in this regard) that he was the subject of a criminal investigation rather than an ordinary audit.

The use of s. 231.1 to obtain bank records and records of a solicitor who had acted for the accused breached the reasonable expectations of privacy of the accused. Bagnall J. found that the use of the evidence so obtained without judicial authorization was not permitted under s. 24(2) of the Charter.

A demand made pursuant to s. 231.1(1), to a trustee in bankruptcy for working papers that it had prepared to analyze irregularities between the corporation in question and its shareholders did not violate the Charter.

S.231.4 and subpoenas issued under it were of no force and effect because s. 231.4 violated s. 8 of the Charter.

Because the purpose of the Special Enforcement Branch of Revenue Canada Special Investigations was to cause maximum disruption to criminal operations rather than collecting revenue, a demand made by the Special Investigations Branch pursuant to s. 231.2(1) of the Act had a criminal aspect rather than a purely regulatory or administrative aspect. Accordingly, the accused could not be charged with failure to comply with the demand because it, in turn, was based on information that had been obtained from the RCMP Drug Squad in contravention of the accused's rights under s. 8 of the Charter.

Because s. 231.3 removed the residual discretion of the issuing judge to refuse to issue a search warrant in the proper circumstances, notwithstanding that the statutory criteria for its issuance had been met, it violated s. 8 of the Charter and, therefore, was of no force or effect, and search warrants issued and executed pursuant to it were invalid.

Brockenshire J. was persuaded by the decision of the Federal Court of Appeal in the Baron decision that s. 231.3 of the Act was invalid, and that therefore, search warrants issued thereunder were also invalid.

After finding that a demand under former s. 231(3) would constitute a "seizure" for purposes of s. 8 of the Charter because the compelled production of documents pursuant to s. 231(3) very well could extend to information and documents to which the taxpayer had a privacy interest in need of protection under s. 8 of the Charter, Wilson J. went on to find that such a seizure did not entail an unreasonable intrusion on the taxpayer's privacy interest. She stated (at p. 6251):

"s.231(3) provides the least intrusive means by which effective monitoring of compliance with the Income Tax Act can be effected. It involves no invasion of a taxpayer's home or business premises. It simply calls for the production of records which may be relevant to the filing of an income tax return. A taxpayer's privacy interest with regard to these documents vis-á-vis the Minister is relatively low."

The procedure in s. 231.3 is consistent with s. 8 of the Charter.

s.231.3 meets the deficiencies previously found in the search and seizure procedure under the former s. 231(4).

S. 231(1)(d) was contrary to the Charter because it did not provide for prior judicial authorization, there was no objective standard against which to test the validity of the seizure, only the appearance of a violation was required to justify a seizure, there was too broad a category of documents that could be seized, there was no limitation of the section to situations of urgency and there was no opportunity to contest the seizure before it took place.

"S.8 of the Charter cannot be applied to a search or seizure which occurred before the coming into effect of the Charter."

"The completely arbitrary and discretionary power of seizure from third parties" conferred by s. 231(3) was found to contravene s. 8. S.231(1)(d) was conceded by the Crown also to be inconsistent with s. 8 of the Charter.

Documents seized at a private residence were excluded from evidence.

Evidence obtained from an illegal seizure is inadmissible, regardless whether the seizure was made in good faith. Here, however, bad faith was amply demonstrated.

The temporary lifting of writs of execution under a consent order to allow for the sale of the applicant's home and to allow for the payment of the proceeds into Court, followed by the refiling of the writs, did not entail any "seizure".

Articles improperly seized by the Crown should be returned even if they may be required as evidence in subsequent proceedings.

S. 231(4) contravenes the right of the taxpayer to be secure against unreasonable search or seizure because it confers "on the Minister, when he has grounds to believe that one particular offence has been committed, the power to authorize a general search and seizure relating to the violation of any of the provisions of the Income Tax Act or the Regulations." The Court could not "accept the general proposition that the mere fact that a taxpayer has, at a particular time, committed an offence ... however trifling that offence, affords sufficient justification for the general power of search and seizure conferred by subsection 231(4)."

Since a purpose of s. 8 is to protect individuals from unjustified state intrusions upon their privacy, s. 8 requires a means of preventing unjustified searches before they happen, and thus in general requires a system of prior authorization, not one of subsequent validation. The person authorizing the search must be able to act in a judicial capacity in applying what must be an objective standard embodied in legislation as to what must be established in order for the interests of the individual to give way to those of the state.

"It is not unreasonable to garnishee assets as a result of the filing of a certificate under Section [223] of the Act for income tax assessments."

"The powers and procedures set forth in section 231 of the Act are necessary and appropriate for the due functioning of the Taxation system in effect in Canada. They have not become unnecessary or inappropriate by virtue of the enactment of the Charter and they are demonstrably justified in a free and democratic society."

The seizure of the taxpayer's shares in a private company under a writ of fi. fa. as security for what, under the operation of ss.222 and 223(2), was a debt owing to the Crown in respect of reassessed taxes, would not constitute an unreasonable seizure, it being expected that Revenue Canada will not maliciously, or unnecessarily, sell shares or other assets of the taxpayer.

The preparer's penalty under s. 163.3(4) is not a criminal penalty so that the preparer does not benefit from procedural protections under s. 11 of the Charter. Rothstein J stated that "the magnitude of penalties under s. 163.2(4) is directly tied to the objective of deterring non-compliance with the ITA" (para. 84).

See summary under s. 163.2(4).

The taxpayer provided grossly negligent opinions on a charitable donation scheme (which unbeknownst to her was a scam) and signed charitable donation receipts in connection therewith. The Minister assessed her for penalties under s. 163.2(5).

The Tax Court had found that s. 163.2 created an offence - so that the taxpayer's assessment should be vacated as she had not been given the rights guaranteed by s. 11 of the Charter. The Tax Court lacked jurisdiction to make this finding as the taxpayer had not served notice of this constitutional question on the federal and provincial Attorneys General.

Stratas JA rejected an alternative submission that the taxpayer could assert those s. 11 rights (such as proof beyond a reasonable doubt) which did not override the wording of s. 163.2 ("section 11 is not a buffet table" (para. 35)) - and went on to note that, in any event, s. 163.2 did not create an offence: the penalties under s. 163.2 are "not about condemning morally blameworthy conduct," but rather for "ensuring that this discrete regulatory and administrative field of endeavour [i.e. taxation] works properly" (para. 41).

The Court could "find no evidence of any real or concrete prejudice having been suffered or likely to be suffered by Mr. Rahey as a result of the trial judge's delay," and Mr. Rahey's s. 11(b) right accordingly had not been infringed.

There is no offence in issue in the tax audit. Therefore, s. 11(c) of the Charter has no application to a requirement for information made in an audit pursuant to s. 231.2(1).

It was indicated that the statement in S.244(4) that the Minister's certificate as to the day on which sufficient evidence of the occurrence of an offence came to his knowledge "is conclusive evidence thereof", is not rendered inoperative under SS.7 or 11(d) of the Charter. "The section in no way affects the substantive offence with which the accused is charged".

S.158(2) of the Act is not contrary to s. 11(d) of the Charter. It "does not create a criminal offence but is merely a civil matter permitting a demand for payment to be made without waiting 30 days from the mailing of the Notice of Assessment."

Because proceedings under s. 163(2) are of an administrative nature (there being no charge, no trial, no sentence or any fine in excess of an amount calculated to compensate the Minister for the costs of an investigation), there was no violation of s. 11(h) of the Charter in bringing proceedings against the taxpayer under s. 239(1)(d) after the taxpayer had been assessed under s. 163(2).

The Minister assessed the taxpayers under s. 163(2) for penalties, and shortly thereafter the taxpayers were convicted under s. 239(1). The taxpayers applied to the Supreme Court of British Columbia for an order declaring that the imposition of the penalties, in light of their previous convictions, amounted to their being punished for the same offence twice. It was held that s. 163(2) did not create an "offence", because the penalty assessments were "properly characterized as private matters of a regulatory nature - primarily intended to regulate the conduct of taxpayers with reference to their complying with the requirements" of the income tax legislation, whereas prosecutions for a violation of s. 239 "are properly characterized as criminal and penal matters intended to 'promote public order and welfare within a public sphere of activity' by deterring the public from the commission of flagrant breaches of the Income Tax Act." In addition, s. 163(2) did not impose "punitive sanctions [which] were so severe as to constitute 'a true penal consequence'." Finally, in light of the presumption that an assessment is valid and binding until an appeal court varies or vacates it, the penalties effectively constituted punishment of the taxpayers before their conviction under s. 239(1), rather than afterwards.

S.11 deals only with offences that are prosecuted in a criminal or penal proceeding, and s. 163(2) penalties are not assessed in such a proceeding.

The Court found that the taxpayer was liable for penalties under s. 163.2 for participating in the making of false statements relating to 134 taxpayers' claims for charitable tax credits.

Stratas JA stated obiter dicta that it was unlikely that s. 163.2 penalties could ever amount to cruel and unusual punishment given that s. 163.2 penalties are based on a formula that attempts to "gauge the extent to which the impugned conduct may have affected the tax system" - in this case, 50% of the amount of tax that the 134 participants sought to avoid.

The taxpayer's son did not reside with him when he incurred expenses in caring for his son, and therefore the expenses were not "child care expenses" under s. 63(3). Near J. confirmed that s. 63(3) is not discriminatory under the Charter, as it does not perpetuate a disadvantage by perpetuation of prejudice or stereotypes. The mere deprivation of a financial benefit that would be available to parents with custody of their children is not enough to establish discrimination against parents without custody.

The legislative choice reflected in s. 118(1)(b)(ii)(D), that no credit would be provided to young adults over the age of 18 who remained dependant upon their parents but were not suffering from a mental or physical infirmity, did not engage the right to equality set out in s. 15 of the Charter given the absence of direct or indirect discrimination in this legislative design.

The Tax Court erred in considering the taxpayer's claim that his section 15 Charter rights had been violated when officials at the Department of Indian Affairs caused an order-in-council to be issued that specified that members of an Indian band had to be of Canadian ancestry (the taxpayer being of American ancestry) in the absence of notice being given by the taxpayer under subsection 19.2(1) of the Tax Court of Canada Act that he was raising an issue as to the constitutional operability of a regulation. The impugned conduct by the officials represented a breach of proper conduct under administrative law rather than representing differential treatment based on the taxpayer's personal characteristic and, therefore, did not represent a Charter violation.

Paragraph (f) of the definition of in s. 122.6 of the Act, which provided that a female parent is presumed to be primarily responsible for the care and upbringing of a qualified dependant where the dependant resides with her, did not impair the sense of human dignity of the taxpayer as a member of a group (fathers) who were thereby accorded sex-base differential treatment and, therefore, did not violate s. 15 of the Charter.

Article XXVI A of the Canada-U.S. Convention was contrary to section 15 of the Charter in light of the citizenship preference contained in paragraph 8 of Article XXVI A.

The Minister allowed some medical expense tax credits in respect of care for a son of the taxpayer who suffered from congenital brain malformation [ultimately] but disallowed credits in respect of such items as books, compact discs, toys, computer equipment, and a van that was used by all family members. The taxpayer unsuccessfully advanced a Charter remedy that would have involved a judicial redrafting of s. 118.2(2) to allow a medical expense tax credit for all disability related expenses, including those incurred in the home rather than in an institution. The taxpayer failed to advance evidence to establish that the differential treatment accorded by s. 118.2(2) to institutional and home care gave families an incentive to choose institutional care for their disabled children over home care, thereby (as it was argued) perpetuating an historic negative stereotyping of disabled people.

The 18-year age limit in s. 118(1)(b)(ii)(D) was not contrary to s. 15(1) of the Charter (and would have been justified under s. 1 of the Charter if it were).

In rejecting a submission that the forward averaging provisions of the Income Tax Act discriminated against poor taxpayers by tying the forward averaging credit to the top marginal rate, Hugessen J.A. stated that "the establishment of different tax rates for different income tax brackets does not constitute discrimination on a ground enumerated in s. 15 or on any analogous ground".

S.56(1)(b), which required the inclusion of child maintenance payments in the hands of the recipient (in this case, the former wife of the payor) did not, when considered in conjunction with the corresponding deduction in s. 60(b) and in light of the requirement under family law to take the income tax position of the recipient into account, did not impose a burden on the recipient because there would be a corresponding gross-up for the amount of such tax in most instances and, because the income-splitting effect of the provisions made more resources available for the payment of maintenance.

In response to a submission that s. 122.5 discriminated against children under the age of 19 because it is only their parents who are entitled to claim the tax credit on their behalf, Létourneau J.A. found that the applicants had failed to establish any prejudice or stereotyping in these circumstances, nor any fundamental unfairness. Accordingly, the provision was not contrary to s. 15(1) of the Charter.

The exclusion from the definition of "earned income" in s. 146(1) of such sources of income as pensions, family allowances, interests and other investment income was not contrary to s. 15(1) of the Charter. The definition effectively drew a distinction among taxpayers on the basis of sources of income rather than any basis of discrimination proscribed by s. 15(1).

The limitation on the deduction of child care expenses in s. 63 of the Act did not violate s. 15(1) of the Charter in the absence of evidence that women disproportionately pay child care expenses. However, Iacobucci J. noted (p. 6026) that:

"if, for example, it could be established that women are more likely than men to head single-parent households, one can imagine that an adverse effects analysis involving single mothers might well take a different course, since child care expenses would thus disproportionately fall upon women."

The fact that s. 118(1) at the time provided a greater benefit to an unmarried couple with a child than to a married couple with a child could not be characterized as discrimination based on religion contrary to s. 15 of the Charter; nor did it interfere with either's religious belief or practice contrary to s. 2(a) of the Charter.

The more stringent requirements under the Income Tax Act for the deduction of expenses by an employee rather than a self-employed businessman (and, in particular, the alleged deductibility by businesses of fees paid to the National Citizens' Coalition) did not constitute discrimination against a group (i.e., employees) for purposes of subsection 15(1). "This huge group of taxpayers is not a 'discrete and insular minority'".

S.8(1)(m) of the Act (which establishes a $3500 limit for pension plan contributions) is a provision of general application and is not specifically directed at federally-appointed judges (who are required to contribute more than the limit to a statutory plan). S.8(1)(m) accordingly does not offend s. 15 of the Charter.

The Crown is not an "individual" for purposes of s. 15(1) and an attack under s. 15(1) on Crown prerogative powers accordingly failed.

The Attorney General's right of election in s. 239(2) does not contravene s. 15 of the Charter. S.239(2) "provides the Attorney General with sufficient flexibility to take the specific circumstances of each case into account and ensure that, in each case, the interests of justice are served."

The requirement in s. 146(2)(b)(iii) that an RRSP not provide for maturity after the end of the year in which the annuitant attains the age of 71 does not violate the Charter.

In finding that the failure of the Act to allow a deduction or tax credit for contributions to a foreign insurance plan did not represent an infringement of section 15 of the Charter, Campbell T.C.J. stated (at p. 767):

"All employed Canadian citizens are required to make CPP contributions and are entitled to a corresponding deduction ... . Citizens of this country whether of U.K. national origin or Canadian national origin are not entitled to a like deduction for contributions made to a foreign insurance plan. There is no differential treatment as nationality does not come into play."

In finding that the definition of "earned income" in s. 146(1) of the Act did not violate s. 20(1) of the Charter, Mahoney J.A. stated:

"While we would not wish to suggest that it is beyond the wit of the drafters of the Income Tax Act to achieve a measure of incomprehensibility that might run afoul of subsection 20(1), we do not think that paragraph 146(1)(c) has quite arrived."

Where the Crown has made an illegal seizure, the "heavy burden" upon it to justify retention of the seized documents, and copies and extracts thereof, cannot be satisfied by a simple assertion that the things seized are needed for a prosecution.

Although a Court has the discretion under s. 24(1) to award damages to a taxpayer respecting an unconstitutional seizure by the Crown, such an award was not appropriate here where the Crown had made an unconstitutional seizure in good faith. The appropriate sanction was to order a return of the taxpayer's documents (but not documents seized at the premises of his accountant) to him.

Where a seizure of records was unlawful by reason of S.8 of the Charter, the records improperly seized should be returned even if they may be required as evidence in subsequent proceedings.

S.24 cannot be invoked with retrospective effect, and accordingly cannot apply to an alleged seizure that took place before 1982.

Although in an application under the Judicial Review Procedure Act (Ontario) for an order in the nature of certiorari the applicant is generally precluded from adducing evidence to supplement the record, it would appear that such a restriction would not apply to a s. 24 remedy for search or seizure contrary to s. 8 of the Charter.

Following a seizure conducted in good faith of documents of the taxpayer pursuant to s. 231.3 of the Act, that provision was found in the Baron case to be unconstitutional. The Department officials, after having unsuccessfully tried to obtain a further warrant, had agreed to return the documents in question to the taxpayer's law firm. The officials then "concocted a scheme whereby they would not really return the documents but would hand them over temporarily and then reseize them immediately pursuant to a new legal warrant" (which they obtained without informing the Court of the relevant circumstances).

At issue were reassessments of the taxpayer for unreported income. Although the conduct of the officials was "not so 'flagrant and egregious' as to support the extreme remedy of vacating these reassessments in light of the minimal importance of the additional evidence obtained by these violations" (p. 6344), the Department was directed to exclude from the reassessments the amount of additional unreported income discovered as a result of the second seizure. Linden J.A. had previously noted (at p. 6342) that "the use of tainted evidence in a criminal proceeding is a much more serious matter than in a civil proceeding".

The admission of evidence seized pursuant to seizure under s. 231.3 would not bring the administration of justice into disrepute because, when the warrants were originally obtained, there was no suggestion that there might be a constitutional problem with s. 231.3, full and complete disclosure was made to the issuing judge and the Revenue Canada investigators acted appropriately.

Documentary evidence that the Crown had seized pursuant to a search warrant granted pursuant to s. 231.3 of the Act prior to the decision of the Supreme Court of Canada in the Baron case and that the Department had unsuccessfully applied to re-seize pursuant to 487 of the Criminal Code was found to be inadmissible.

The Minister made what was subsequently held to be an unconstitutional seizure pursuant to the former s. 231(1)(d) and was ordered to return the seized documents. The admission of some of this evidence to support a fresh application for a warrant pursuant to s. 231.3 would not bring the administration of justice into disrepute.

S.24(2) cannot apply to exclude illegally obtained evidence where the ilegality did not entail infringement of the Charter.

The secretive photocopying by a tax auditor of a document of the taxpayer and the production of that document at trial would not constitute conduct that 'shocks the community', and thus would not bring the administration of justice into disrepute. (Obiter)