Tax fraud Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, so the Crown is the side that has to prove the charge. That presumption is part of section 11(d) of the Canadian Charter of Rights and Freedoms.

Section 239(1) of the Income Tax Act lists five kinds of conduct. They are making, or taking part in, false or deceptive statements in a return, certificate, statement or answer; destroying, altering or hiding the records or books of account of a taxpayer to evade payment of a tax; making false entries in those records, or leaving out a material particular; wilfully evading, or attempting to evade, compliance with the Act or payment of taxes; and conspiring with another person to commit one of those offences. Section 239(1.1) adds obtaining or claiming a refund or credit to which the person or any other person is not entitled.

Section 327(1) of the Excise Tax Act follows the same pattern for the tax imposed under Part IX of that Act. It also covers wilfully obtaining, or attempting to obtain, a rebate or refund to which the person is not entitled. The word wilfully appears in some paragraphs and not in others. The evidence on each part of the wording is for the court to weigh, and a lawyer can explain how courts have read it.

Under section 239(1) of the Income Tax Act, a person found guilty on summary conviction is liable, in addition to any penalty otherwise provided, to a fine of not less than 50% and not more than 200% of the amount of the tax that was sought to be evaded. The court may instead impose both that fine and imprisonment for up to 2 years.

Under section 239(2), a person charged may, at the election of the Attorney General of Canada, be prosecuted on indictment. A person convicted on that route is liable to a fine of not less than 100% and not more than 200% of the same amount, and to imprisonment for up to 5 years. Section 239 sets a minimum for the fine, but no minimum term of imprisonment.

Section 327 of the Excise Tax Act is built the same way. On summary conviction, the fine is not less than 50% and not more than 200% of the tax or net tax sought to be evaded, or of the rebate or refund sought. Where the amount cannot be ascertained, the fine is not less than $1,000 and not more than $25,000. The court may instead impose both a fine and imprisonment for up to two years. On indictment, section 327(2) sets a fine of not less than 100% and not more than 200%, or, where the amount cannot be ascertained, $2,000 to $25,000, or both a fine and imprisonment for up to five years.

Under section 239(4), where substantially the same facts are at issue in a tax appeal and in a prosecution, the Minister may file a stay of proceedings with the Tax Court of Canada. A maximum is the ceiling the law allows. It does not say what sentence a court would give in any case.

Fraud is an offence in section 380 of the Criminal Code. A person commits it by deceit, falsehood or other fraudulent means defrauding the public or any person of any property, money or valuable security or any service. It is a separate offence from those in the tax statutes, with its own penalties.

Section 380(1) ties the penalty to the value of the subject matter. If the subject matter is a testamentary instrument, or its value exceeds five thousand dollars, the offence is indictable with imprisonment of up to 14 years. If the value does not exceed five thousand dollars, the offence is either indictable with imprisonment of up to two years, or punishable on summary conviction. Unless another penalty is set, a summary conviction offence carries a fine of up to $5,000, imprisonment of up to two years less a day, or both, under section 787(1).

Section 380(1.1) sets a minimum. When a person is prosecuted on indictment and convicted, the court shall impose imprisonment for two years if the total value of the subject matter of the offences exceeds $1 million. A court that convicts may also order restitution under section 738, in the cases that section lists.

Whether a defence is open in a particular case depends on the evidence. The wording of the statutes shows where the questions lie: whether a statement was false or deceptive, whether the evidence meets the word wilfully where a paragraph uses it, and the amount of tax, refund or credit at issue, because the fines in sections 239 and 327 are measured on it.

Charter rights apply from the start. Section 10 gives everyone on arrest or detention the right to retain and instruct counsel without delay and to be informed of that right. Section 8 gives everyone the right to be secure against unreasonable search or seizure, which may raise a question if records were gathered in a search. Section 11(b) gives a person charged the right to be tried within a reasonable time. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute. Whether a right was infringed is for the court to decide on the facts.

In Ontario, every charge under the Criminal Code and most other federal statutes starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones.

On a release decision, section 515 says the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order should be made. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause.

After a conviction on indictment, an appeal goes to the court of appeal: as of right on a question of law alone, and with leave on questions of fact or mixed law and fact, or against sentence. A summary conviction appeal goes, in Ontario, to the Superior Court of Justice sitting in the region, district or county where the case was decided.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction. Duty counsel is a lawyer at the courthouse for that day who can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258. The Law Society of Ontario keeps a public Lawyer and Paralegal Directory. Nothing on this page ranks or recommends any lawyer.