DATE: 20041014
DOCKET: C40752
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – PAUL JOSEPH RICCI (Appellant)
BEFORE: WEILER, ROSENBERG JJ.A. and PARDU J. (ad hoc)
COUNSEL: Douglas Hewson Christie for the appellant Robert F. Goldstein and Gart Caracciolo for the respondent
HEARD: September 24, 2004
On appeal from the order of Justice Terrence P. O’Connor of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated September 22, 2003, dismissing an appeal from the conviction entered and the sentence imposed by Justice Charles H. Vaillancourt of the Ontario Court of Justice dated September 17, 2002.
E N D O R S E M E N T
[1] On May 27, 2002 the appellant was convicted by Justice Vaillancourt of the Ontario Court of Justice on three counts of tax evasion pursuant to s. 239(1)(d) of the Income Tax Act (the “Act”) and fined $29,210. On September 22, 2003, O’Connor J., the Summary Conviction Appeal Judge, dismissed his appeal.
[1] The appellant appealed against conviction and raised three issues in his notice of appeal:
Was the appellant within his rights to withhold paying taxes because he believed the government used the money to violate the rule of law and the Nuremberg principles?
Did the appellant lack the necessary mens rea for the offence of tax evasion?
Did the conduct of the appellant’s agent at trial result in a miscarriage of justice?
[2] The first issue was abandoned at the hearing of this appeal.
[3] The facts in relation to the second issue, whether the appellant lacked the necessary mens rea for the offence of tax evasion, can be briefly stated. The appellant was a sales representative. Between the years 1995 and 1998 he had income tax deducted at source and filed a tax return with respect to commission income in Canada. He did not report income he received from certain commissions in the United States during this period. He also did not file a tax return for the years 1999 and 2000 when he operated as a self-employed person. When the Canada Customs and Revenue Agency (CCRA) informed the appellant that he was under criminal investigation, he wrote them a letter saying that he was not a person included in the Income Tax Act but a “natural person of commoner status” and not subject to payment of income tax. The appellant did not testify at trial.
[4] The appellant submits that he did not attempt to evade income tax. He was open and forthright in what he was doing. He submits he held an honest belief that he was not a person subject to the Income Tax Act. Even if the appellant was mistaken, it was his honestly held belief that he was not a “person” under the Act and therefore could not have had the mens rea required for the offence.
[5] The trial judge concluded that the appellant intentionally disregarded his obligations under the Act thereby finding that the requisite mens rea for the offence had been made out. In our opinion it was open to him to do so. R. v. Klundert made it clear that a person is not exempt from paying taxes based on his political, religious, philosophical or moral beliefs. Doherty J.A., on behalf of the court, stated at para. 59:
A person’s mistaken belief that a statute is invalid or is otherwise not applicable to that person’s conduct is a mistake of law. It is, however, a mistake of law that is irrelevant to the existence of the fault requirement in s. 229(1)(d). Nor can that kind of mistake of law provide a freestanding excuse for the commission of a crime: Criminal Code, s. 19; R. v. Jones (1991), 1991 31 (SCC), 66 C.C.C. (3d) 512 at 516-517 (S.C.C.); R. v. Watson (1999), 1999 13906 (NL CA), 137 C.C.C. (3d) 422 at 431-33 (Nfld. C.A.)
He also held at para. 53 that the appellant’s beliefs concerning the validity of the Act were irrelevant to his liability under s. 239(1)(d). The same is true here.
[6] We would dismiss this ground of appeal.
[7] We now turn to the issue of whether a miscarriage of justice was occasioned because an agent represented the appellant at trial. The appellant submits that the agent’s conduct of the trial fell well below the standards expected of a reasonably competent lawyer and, as a result, his right to a fair and impartial hearing was violated. The appellant also complains that the pre-trial judge failed to advise the appellant of the distinction between an agent and a lawyer.
[8] In our opinion, the appellant made an informed choice to have an agent represent him. In doing so, he could not expect the same level of representation he was entitled to expect from a lawyer. Further, there was no miscarriage of justice because the appellant has presented no evidence that, even with experienced counsel, the result of this case could possibly have been any different.
[9] In the result we would dismiss the appeal.
“Karen M. Weiler J.A.”
“M. Rosenberg J.A.”
“G. Pardu J. (ad hoc)”