R. v. Henneberry

R. v. Henneberry

A s.238(2) compliance order is a sentence component that falls within the BIA exception for fines/penalties under s.178(1)(a) and thus is not extinguished by a bankruptcy discharge; the accused's guilty pleas precluded raising s.227.1 defences at sentencing, the court retains discretion to grant a compliance order and may consider the accused's ability to pay when exercising that discretion, and accordingly the court ordered payment of $22,069.23 under s.238(2).

Citation
2002 NSPC 20
Parties
Crown: Her Majesty the Queen; Accused: Paul Henneberry
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
30 May 2002
Procedural Posture
Criminal (income Tax Act) / Sentencing/decision
Outcome
Court ordered compliance under s.238(2) of the Income Tax Act and imposed fines of $1,000 for each of 12 offences; payment of $22,069.23 was ordered by Sept 5, 2002.
Legal Topics
Failure to Remit Source Deductions, Director/officer Liability, Compliance Order Under S.238(2), Effect of Bankruptcy Discharge, Defences Under S.227.1
Source Language
English
Tax Law Criminal Law Bankruptcy Law Failure to Remit Source Deductions Director/officer Liability Compliance Order Under S.238(2) Effect of Bankruptcy Discharge Defences Under S.227.1

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Parties

Her Majesty the Queen

Crown

Paul Henneberry

Accused

Procedural Posture

Criminal (income Tax Act) / Sentencing/decision

Legal Issues

  1. 1 Whether court has jurisdiction to issue a s.238(2) Income Tax Act compliance order after bankruptcy discharge
  2. 2 Whether unremitted employee deductions constituted trust funds not subject to bankruptcy
  3. 3 Whether the accused's ability to pay is relevant to exercising discretion to make a compliance order

Ratio Decidendi

A s.238(2) compliance order is a sentence component that falls within the BIA exception for fines/penalties under s.178(1)(a) and thus is not extinguished by a bankruptcy discharge; the accused's guilty pleas precluded raising s.227.1 defences at sentencing, the court retains discretion to grant a compliance order and may consider the accused's ability to pay when exercising that discretion, and accordingly the court ordered payment of $22,069.23 under s.238(2).

Court Disposition

Court ordered compliance under s.238(2) of the Income Tax Act and imposed fines of $1,000 for each of 12 offences; payment of $22,069.23 was ordered by Sept 5, 2002.

Orders

  • Fines of $1,000 imposed for each of the 12 offences pursuant to Income Tax Act s.238(1) (total $12,000).
  • Pursuant to Income Tax Act s.238(2) Paul Henneberry must pay $22,069.23 to the Receiver General on or before September 5, 2002.