R. v. Allard, 2016 ONSC 7481

Case Summary

The Crown appealed the respondent's acquittal on 14 counts of failing to file corporate tax returns under s. 238(1) of the Income Tax Act. The trial judge had acquitted the respondent based on the defence of due diligence. On appeal, the Crown sought to introduce fresh evidence showing that the respondent had still not filed the returns months after the trial, contradicting his trial testimony. The Superior Court admitted the fresh evidence and found the trial judge erred by failing to consider the respondent's prior knowledge of his obligations and the continuing nature of the duty to file. The appeal was allowed, the acquittals were set aside, and a new trial was ordered on the issue of due diligence.

Court File and Parties

CITATION: R. v. Allard, 2016 ONSC 7481

COURT FILE NO.: CR-14-1255-AP

DATE: 20161130

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN, Appellant

AND:

JUSTIN ALLARD, DIRECTOR OF 2227429 ONTARIO INC., Respondent

BEFORE: MR. JUSTICE CALUM MACLEOD

COUNSEL: Robert Zsigo, Crown Counsel, for the Appellant

Tobias Okada-Phillips, for the Respondent

HEARD: November 30th, 2016

On Appeal From: the decision of His Honour Justice Franco Giamberardino, October 23, 2015

Reasons for Decision

[1] The Attorney General of Canada on behalf of Her Majesty the Queen appeals to this court from a verdict of acquittal on 14 counts under s. 238 (1) of the Income Tax Act.[^1] The summary conviction trial took place in the Ontario Court of Justice at Killaloe, Ontario on August 19th, 2015 and the verdict of acquittal was pronounced at Cornwall, Ontario on October 23rd, 2015.

[2] The grounds for acquittal, and the finding that is under appeal, was a finding by the trial judge that given his circumstances, the accused exercised due diligence in attempting to comply with the notices requiring him to file tax returns for several corporations. The Attorney General contends that the trial judge did not apply the correct test to this question and requests that the verdict be set aside.

[3] The Crown also seeks to introduce fresh evidence. Specifically the Attorney General seeks leave to introduce an affidavit dealing with whether and/or when the respondent filed income tax returns with the CRA either prior to trial or subsequently. It is the contention of the Crown that this evidence could not have been

R. v. Allard, 2016 ONSC 7481

Case Summary

Court File and Parties

Reasons for Decision

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