Warawa v. Canada (Attorney General), 2005 FCA 34

Date: 20050125

Docket: A-502-03

Citation: 2005 FCA 34

CORAM:        LÉTOURNEAU J.A.

SHARLOW J.A.

PELLETIER J.A.

BETWEEN:

                                                              ALLAN WARAWA

                                                                                                                                            Appellant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                        Heard at Edmonton, Alberta on January 25, 2005.

                  Judgment delivered from the Bench at Edmonton, Alberta on January 25, 2005.

REASONS FOR JUDGMENT OF THE COURT BY:                                              SHARLOW J.A.

CONCURRED IN BY:                                                                                     LÉTOURNEAU J.A.

PELLETIER J.A.

Date: 20050125

Docket: A-502-03

Citation: 2005 FCA 34

CORAM:        LÉTOURNEAU J.A.

SHARLOW J.A.

PELLETIER J.A.

BETWEEN:

                                                              ALLAN WARAWA

                                                                                                                                            Appellant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                     REASONS FOR JUDGMENT OF THE COURT

                    (Delivered from the Bench at Edmonton, Alberta on January 25, 2005)

SHARLOW J.A.

[1]                The appellant Allen Warawa has been reassessed for 1985, 1986, 1987, 1988, 1989 and 1990 under the Income Tax Act, R.S.C. 1985 (5^th Supp.), c. 1. He has appealed those reassessments to the Tax Court of Canada. It appears to be undisputed that the Crown has the onus of proving its entitlement to reassess after the normal reassessment period.

[2]                The transactions that are the subject of the reassessments had been the subject of criminal tax evasion charges against Mr. Warawa. The Crown did not proceed with those charges because

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Clarke J. of the Alberta Court of Queen's Bench ruled, after a voir dire, that a substantial part of the Crown's evidence was inadmissible because of breaches of Mr. Warawa's rights under section 7 and section 8 of the Canadian Charter of Rights and Freedoms; see R. v. Warawa (1997), [1998] 1 C.T.C. 345, 98 D.T.C. 6471.

[3]                In 2001, Mr. Warawa brought a motion in the Tax Court seeking an order to have the reassessments vacated, and in the alternative an order that he was not required to submit to an examination for discovery, on the basis of the Charter breaches found by Clarke J. Those motions were dismissed on December 20, 2001 by Mogan J.: Warawa v. Canada, [2002] 2 C.T.C. 2080, 2002 D.T.C. 1264 (T.C.C.). That decision was not appealed.

[4]                On October 3, 2003, Mr. Warawa brought another motion in the Tax Court seeking an order allowing his income tax appeals and vacating the reassessments, again on the basis of the same Charter breaches. That motion was dismissed by Beaubier J. on October 17, 2003, for reasons that are now reported as Warawa v. Canada, 2003 D.T.C. 1399, [2004] 1 C.T.C. 2927. Mr. Warawa now appeals the dismissal of that motion.

[5]                The theory underlying the motion is that the reassessments must necessarily be vacated because they are based entirely on evidence that cannot be admitted in the Tax Court because of the Charter breaches found by Clarke J. The argument for Mr. Warawa in the Tax Court, and in

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this Court, is that this case cannot be distinguished from Canada v. O'Neill Motors Ltd. (C.A.), [1998] 4 F.C. 180, [1998] 3 C.T.C. 385, 98 D.T.C. 6424.

[6]                Beaubier J. did not consider the O'Neil Motors case to be dispositive. He dismissed the motion for a number of reasons. In our view, the most important points he made may be summarized as follows. First, the admissibility of the evidence in Mr. Warawa's income tax appeal is a question to be determined by the Judge hearing the appeal. Second, the fact that Clarke J. found a substantial part of the Crown's evidence to be inadmissible in the criminal proceedings against Mr. Warawa does not by itself establish that all evidence presented by the Crown in the income tax appeal, which is a civil proceeding, will be found to be inadmissible.

[7]                Despite the able submissions of counsel for Mr. Warawa, we are unable to find any error in the decision of Beaubier J. that warrants the intervention of this Court. This appeal will be dismissed with costs.

"K. Sharlow"                                                                                       _________________________________________

                Judge/J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-502-03

(APPEAL FROM A JUDGEMENT OR ORDER OF THE TAX COURT OF CANADA DATED OCTOBER 17, 2003)

STYLE OF CAUSE:                                                             ALLEN WARAWA v. AGC

PLACE OF HEARING:                                                        Edmonton, AB

DATE OF HEARING:                                                           January 25, 2005

REASONS FOR JUDGMENT OF THE COURT             L ourneau, Sharlow, Pelletier JJ.A.

DELIVERED FOR THE BENCH BY:                               Sharlow, J.A.

APPEARANCES: