R. v. O’Hara

R. v. O’Hara

The court held s.238(1) offences are strict liability: Crown proved identity, jurisdiction, proper personal service of Notices under s.231.2(1) and failure to comply via CRA affidavits; s.242 exposes named officers/directors to party liability without separate mens rea requirement; neither accused proved due diligence or officially induced error on a balance of probabilities; therefore both accused guilty of the charges.

Citation
2017 NSPC 31
Parties
Crown: Her Majesty The Queen; Accused: Linda O’Hara; Accused: Colleen O’Hara-Gallant
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
28 April 2017
Procedural Posture
Criminal Summary Conviction (tax) / Trial Judgment (decision Rendered)
Outcome
Guilty on all counts (convicted under s.238(1) Income Tax Act as parties under s.242)
Legal Topics
Failure to File Tax Returns, Directors/officers Liability, Strict Liability Offences, Due Diligence Defence, Officially Induced Error, Service of Process
Source Language
English
Tax Law Criminal Law Corporate/administrative Law Failure to File Tax Returns Directors/officers Liability Strict Liability Offences Due Diligence Defence Officially Induced Error +1 more

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Parties

Her Majesty The Queen

Crown

Linda O’Hara

Accused

Colleen O’Hara-Gallant

Accused

Procedural Posture

Criminal Summary Conviction (tax) / Trial Judgment (decision Rendered)

Legal Issues

  1. 1 Whether offences under s.238(1) Income Tax Act are strict liability
  2. 2 Whether Notices of Requirement under s.231.2(1) were properly served on named officers/directors
  3. 3 Whether s.242 makes officers/directors criminally liable only with mens rea or as parties to strict liability offences

Ratio Decidendi

The court held s.238(1) offences are strict liability: Crown proved identity, jurisdiction, proper personal service of Notices under s.231.2(1) and failure to comply via CRA affidavits; s.242 exposes named officers/directors to party liability without separate mens rea requirement; neither accused proved due diligence or officially induced error on a balance of probabilities; therefore both accused guilty of the charges.

Court Disposition

Guilty on all counts (convicted under s.238(1) Income Tax Act as parties under s.242)

Orders

  • Both accused convicted of the offences charged under s.238(1) ITA as parties under s.242
  • Decision delivered April 28, 2017