R. v. Martin

R. v. Martin

Applying Jarvis factors the judge found that by November 7, 2007 the audit had effectively become a criminal investigation because auditors were expressly instructed to verify the truthfulness of the taxpayer's explanation (a mens rea inquiry) and the focus was on penal liability; therefore the use of statutory audit compulsion powers thereafter violated ss.7 and 8 of the Charter and the evidence obtained as a result was excluded under s.24(2).

Citation
2013 NSPC 49
Parties
Crown/prosecution: Her Majesty the Queen; Accused/applicant: Darren Martin; Amicus: Stephen Robertson
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
20 June 2013
Procedural Posture
Criminal Charter Motion Re Evidence Exclusion / Decision on Charter Motion (pre Trial)
Outcome
Charter breaches found (ss.7 and 8); evidence obtained as a result of the impugned search warrant excluded
Legal Topics
Charter S.7, Charter S.8, S.24(2) Exclusion, Income Tax Act S.239, Excise Tax Act S.237, Search Warrant, Audit Vs Investigation, Self Incrimination, Jarvis Test
Source Language
English
Constitutional Law Tax Law Criminal Law Administrative Law Evidence Charter S.7 Charter S.8 S.24(2) Exclusion +6 more

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Parties

Her Majesty the Queen

Crown/prosecution

Darren Martin

Accused/applicant

Stephen Robertson

Amicus

Procedural Posture

Criminal Charter Motion Re Evidence Exclusion / Decision on Charter Motion (pre Trial)

Legal Issues

  1. 1 When did a CRA compliance audit morph into a criminal investigation?
  2. 2 Whether Mr. Martin's s.7 right against self-incrimination was violated by compelled audit evidence
  3. 3 Whether Mr. Martin's s.8 right against unreasonable search and seizure was violated

Ratio Decidendi

Applying Jarvis factors the judge found that by November 7, 2007 the audit had effectively become a criminal investigation because auditors were expressly instructed to verify the truthfulness of the taxpayer's explanation (a mens rea inquiry) and the focus was on penal liability; therefore the use of statutory audit compulsion powers thereafter violated ss.7 and 8 of the Charter and the evidence obtained as a result was excluded under s.24(2).

Court Disposition

Charter breaches found (ss.7 and 8); evidence obtained as a result of the impugned search warrant excluded

Orders

  • Exclude evidence collected as a result of the search warrant against Darren Martin pursuant to s.24(2) of the Charter