Court of Appeal for Ontario

Citation: R. v. Hunter, 2008 ONCA 103

Dates: 2008-02-14

Docket: C46422

Before: Weiler, Rouleau JJ.A. and Pardu J. (ad hoc)

Between:

Her Majesty the Queen

Appellant

and

Jonathan James Hunter

Respondent

Counsel:

Rick Visca and Lisa Csele for the appellant

No one appearing for the respondent

Heard and released orally: January 31, 2008

On appeal from the acquittal entered on December 6, 2006 by Justice Frances P. Kiteley of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The respondent did not appear for the appeal. From the material filed, it is apparent that he is aware of the date but has not advised the court that he wishes an adjournment.

[2] We agree with the appellant Crown that the trial judge found that all of the essential elements of the offences of tax evasion and of making false statements in the tax return had been made out. At para. 94 of her reasons she found:

I am satisfied beyond a reasonable doubt that Mr. Hunter made false statements in his 1996 and 1997 T1Returns of Income and that he intentionally made the statements knowing that they were false. I am also satisfied beyond a reasonable doubt that Mr. Hunter engaged in a course of conduct that avoided or attempted to avoid the payment of tax imposed by the Income Tax Act; that Mr. Hunter knew there was tax imposed by the Act; and that Mr. Hunter 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 virtually certain consequences of his actions. Mr. Hunter wilfully evaded compliance with his obligation to pay taxes in 1996 and 1997.

[3] The trial judge acquitted the respondent, however, because she was not able to calculate the amount of income tax that the respondent had not paid. At para. 39 of her reasons, she inferred that the opening net worth statement understated the respondent’s assets because no amount was attributed to take into account the possibility that the value of the shares owned by the respondent in December 1995 exceeded the $8,005 indicated.

[4] While the burden of proof remains on the Crown, the taxpayer is required to keep proper books and records. The opening net worth statement represented all of the tax payor’s existing assets based on the documentation that had been seized. The statement was an approximation because the respondent did not keep proper records and did not testify as to his net worth. The appellant submits that it is only if a net worth statement was so inaccurate that it totally undermined the conclusion that any tax was owed that the respondent should have been acquitted on the evidence. We have no evidence that the net worth statement here are is grossly inaccurate.

[5] The Crown tendered evidence that the taxpayer had a certain amount of assets as of a particular date and had increased his net worth as a result of taxable income that had not been disclosed. The taxpayer offered no evidence by way of explanation. In these circumstances, the Crown is not required to negate every possibility respecting the amounts put forward especially when the matters in issue are peculiarly within the knowledge of the taxpayer.

[6] Accordingly, the appeal is allowed, the acquittals are set aside and convictions entered. The matter is remitted to the trial judge for sentencing.

“K.M. Weiler J.A.”

“Paul Rouleau J.A.”

“G. Pardu J. (Ad hoc)”