March 06, 2012

Winston Blackmore (Appellant) v. Her Majesty the Queen (Respondent)

2012 DTC 1053
Tax Court of Canada
Date: June 29, 2011

Docket No. 2008-101(IT)G

Examination for discovery — Publication ban — Restriction on evidence — Income Tax Act, RSC 1985, c. 1 (5th Supp.), s. 143(4) “congregation” — Canadian Charter of Rights and Freedoms, s. 7, 13.

Facts: The taxpayer was a member of the Bountiful community in British Columbia, where he was charged with practicing polygamy under section 239(1)(a) of the Criminal Code (the “Code”). The criminal charges were stayed pending a determination of the constitutionality of section 293 by the Supreme Court of British Columbia. Meanwhile, the Minister reasssessed the taxpayer for 2000 to 2006, on the basis that his community was not a “congregation” as defined under subsection 143(4) of the Income Tax Act. The taxpayer’s counsel brought a motion a week before a scheduled two-week trial, requesting that a publication ban apply to any evidence adduced on examination for discovery or in response to undertakings that related to polygamy. Counsel for the taxpayer also requested that any evidence of witnesses produced during the trial not be used or made available for use by others in criminal proceedings under section 293 of the Code, or alternatively, adjourning the hearing sine die.

Held: The taxpayer’s motion was denied with costs. It was determined that a publication ban was not necessary, as much information about the taxpayer was already in the public domain on account of his interviews with major news outlets. Furthermore, the Tax Court was not prepared to provide a sweeping restriction on the use of evidence obtained in a tax case for use in a criminal matter; however, it was noted that protections were available to witnesses through sections 7 and13 of the Canadian Charter of Rights and Freedoms and the Evidence Act. Lastly, the balance of convenience favoured moving forward with the tax trial, as the wait time to receive a decision on the reference question would cause more harm to the administration of justice than to the taxpayer.