Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

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Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby Burnaby49 » Wed Feb 24, 2016 11:01 am

The Canada Revenue Agency is getting flagrant in it's brutal treatment of the Fiscal Arbitrator appellants, those diligent, responsible taxpayers who sought only to file their income tax returns correctly by trying to deduct from their income hundreds of thousands of dollars of fake expenses from their non-existent businesses.

This recent Tax Court of Canada case finally rips the lid off the scandal and exposes the depravity into which the CRA has sunk in its quest to break the Fiscal Arbitrators. Only one brave, solitary lawyer stands between Douglas McCarthy, our current terrified victim, and the CRA Torquemada's most diabolical torture device; The Comfy Chair! Or in legal terms, asking him questions that he doesn't want to answer!

McCarthy v. The Queen
http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/142521/index.do

This is an appeal to the Tax Court of Canada regarding the CRA's reassessment of Mr. McCarthy which disallowed all of his claimed fake business expenses and hit him with a gross negligence penalty under subsection 163(2) of the Income Tax Act for claiming them. This penalty is equal to 50% of the taxes the taxpayer attempted to avoid.

All of the Fiscal Arbitrators have been reassessed and penalized under 163(2). A few have appealed the entire reassessment, expense claims and penalty and lost because the Tax Court of Canada agrees with the CRA that you can't claim what were basically fraudulent faked expenses against your income. Some have appealed just the 163(2) penalty on the basis that they weren't grossly negligent but had tried really hard to file an accurate return by getting highly qualified scammers to prepare their tax returns. They all, without exception, lost. But Mr. McCarthy, is confronting the odds and going for the gusto, apparently appealing both the reassessment and the penalty. I say "apparently" because it is uncertain at the moment since the decision I'm reviewing isn't the actual Tax Court hearing to decide on the issues but a procedural hearing to decide on some matters relating to discovery.

For those of you unfamiliar with the term discovery this is how Wikipedia defines it;

Discovery, in the law of the United States and other countries, is a pre-trial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as a request for answers to interrogatories, request for production of documents, request for admissions and depositions. Discovery can be obtained from non-parties using subpoenas. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.


https://en.wikipedia.org/wiki/Discovery_(law)

The Crown was attempting to do a discovery on Mr. McCarthy and he was refusing to participate so the Crown, rather than doing the decent humane thing and just let him have his unverified expenses, went to the Tax Court of Canada to force the issue;

[5] I turn now to the Respondent’s request, the reasons for allowing it and the reasons for not accepting the opposition of the Appellant. This matter was set down for hearing previously. There was a previous scheduling order requiring discoveries to be completed. They were extended by the prior case management judge and, in spite of an appointment for examination being taken out within the time frame contemplated by the extended scheduling order, the taxpayer did not appear for discovery.


But Mr. McCarty wasn't just flying blind. He had top-notch legal advice. He'd retained a lawyer to advocate his position that the Crown should just drop the whole thing without a trial and allow him his deductions.

The lawyer had come up with four reasons why his client should not be compelled to participate in discovery and why the case should be dropped. They involved court tyranny and the Canadian government's torture of his client, the violation of his right to enjoy property under the Canadian Bill of Rights, and common law coercion.

First the tyranny;

[6] The taxpayer’s counsel has opposed the Respondent’s motion to extend the time to complete discovery on four grounds. Mr. Sumner’s first argument was that the hearing date of November 27, 2015 was adjourned by an order of the Judicial Administrator. This was done in response to requests from both parties and, most recently before her order, a request from the Respondent.

[7] Mr. Sumner argued that the Judicial Administrator’s behaviour is that of a tyrant, that she has no basis to issue scheduling orders, or this adjournment order, nor does the Court or the Chief Justice have any power to authorize her to do that. Mr. Sumner points out his concern that an order that is not signed by a judge may not be appealable to a higher court.


His remedy? His client had already won and the case was over!!

[8] He takes the position that since the November 27, 2015 trial was never properly adjourned and, since the onus with respect to the penalties under dispute is on the Respondent, the taxpayer should be considered to have already won his appeal, at least in respect of the penalties.

[9] Mr. Sumner’s position on this ground is that, if they have already won the appeal, they should not have to be completing discoveries ahead of another trial date.


But the court wasn't buying it since McCarthy had chosen to appeal to The Tax Court and the acts of the Judicial Administrator were foursquare within the legislated rights of the court;

[10] As pointed out to counsel by the Court, the Tax Court of Canada Act, duly passed by Parliament, provides expressly in section 23:

23(1) The Chief Justice may designate an employee of the Courts Administration Service as the Judicial Administrator of the Court.

(2) The Judicial Administrator of the Court shall perform any non-judicial work that may be delegated to him or her by the Chief Justice of the Court, in accordance with the instructions given by the Chief Justice, including

(a) the making of an order fixing the time and place of a hearing, or adjourning a hearing; and

(b) arranging for the distribution of judicial business in the Court.


[11] For that reason, I am rejecting Mr. Sumner’s opposition on that ground.


Well on to the next argument, enjoyment of the use and posession of property;

[12] Taxpayer counsel’s second argument was that Mr. McCarthy’s right under the Canadian Bill of Rights to not be deprived of the enjoyment of his property except in accordance with due process of law is offended if Mr. McCarthy is required to answer questions on discovery.


Why? Because he doesn't want to pay any taxes at all so it is his right not to pay regardless of whether or not he has been correctly assessed. If he files saying that he owes no tax that should be the end of the matter. What could be fairer?

[13] Mr. Sumner’s argument is that the property the enjoyment of which Mr. McCarthy is being deprived is Mr. McCarthy’s right to not be legally obligated to pay money to the government and that Mr. McCarthy is deprived of that right when the government assessed him differently than he filed because, following an assessment, he is obligated to pay the amount or have a debt owing.

[14] Mr. Sumner argues that at that point, given the nature of the objection and appeals process under the Income Tax Act and the Tax Court of Canada Act, there has been an absence of due process that is total; Mr. McCarthy had no hearing before the assessment or reassessment against him was issued


I'm guessing that paragraph 14 means that the CRA has to have a trial hearing prior to reassessing him rather than after. However this argument wasn't a complete stand-alone argument. It was just legal foreplay leading to the money shot, government's blatant torture of his client!

[15] Mr. Sumner did not wish to argue at today’s hearing that the entire assessment is invalid because of this breach of the Canadian Bill of Rights.

[16] After a thorough discussion of the Bill of Rights, Mr. Sumner ultimately indicated he was not pursuing the Bill of Rights’ property-interest argument against attending discovery, but merely to inform certain aspects of the torture and coercion arguments he advanced.


So fine, after that preamble, let's move on to the torture argument;

[17] Mr. Sumner’s third argument opposing attending discovery is that, in circumstances where Her Majesty the Queen is a party to the proceedings, being compelled to attend at discovery and provide answers under oath constitutes torture as defined in the Criminal Code of Canada.

[18] His position is that Her Majesty seeking to exercise her right to discovery constitutes torture. Mr. Sumner’s position is that the Rules of this Court which require the Appellant to provide information on discovery sanction coercion constituting torture given that this is causing Mr. McCarthy mental distress, and since Her Majesty the Queen is a party to this proceeding and Her Majesty the Queen is always behaving coercively.

[19] Similarly, fleshed out, he believes any order of this Court to complete such a discovery, assuming that order also causes further mental distress to Mr. McCarthy, constitutes torture.


And, admit it, who amongst us doesn't think that having to fill out an income tax return is a form of torture? I was a CRA auditor and, for most of my working life, I filled out my own income tax return sitting at the kitchen table with the receipts and the blank return. I considered it a form of discipline. Even I finally couldn't take it any more and I now pay someone else do it for me. So I feel your pain Doug, I've been tortured by them too!

Sadly the court's comments on this aspect of the hearing were so cursory that they were just a blatant insult to a fellow human being suffering under the yoke of an antagonistic dictatorial government;

[20] Subsection 269.1(4) of the Criminal Code dealing with torture provides that, in any proceedings over which Parliament has jurisdiction, any statement obtained as a result of torture is inadmissible in evidence, except as evidence that the statement was obtained as a result of torture. Mr. Sumner’s position is that this means that attending discovery would not only constitute torture, but would only provide inadmissible evidence.

[21] I am not at all persuaded by Mr. Sumner’s arguments or his authorities that this Court’s discovery processes mandated by the Rules, and which form a very integral part of due process and natural justice in this Court, and provide processes to be followed for the better administration of justice, constitute torture. Enough said.


What? Enough said? It's like the court is dismissing the pleas of yet another broken victim of the CRA as just so much bullshit!

So on to Douglas's last shot;

[22] Mr. Sumner’s fourth argument is related to torture, and that is that compelling a person to complete discovery constitutes coercion at common law. If coercion is applied, then it is the taxpayer counsel’s position that the person being coerced has a reaction to it that it is not voluntary. He then takes the position that if Her Majesty the Queen is a party she is always coercive, in effect assuming the coercion, and concludes that if the result is that the answers on discovery under oath are not voluntary as a result, those answers would be inadmissible because they would not be credible, presumably because the taxpayer, his client, might not be telling the truth.

[23] This argument is very similar to, but different from, the torture argument. It is not being raised with respect to the Rules requiring an appellant to deliver a list of documents and documents on that list; the Appellant is in fact willing to do that within seven days. Mr. Sumner does again state that the Court would be coercive if it issued an order compelling discovery of the Appellant.


But, yet again, the result was nothing but another Tax Court Beat-down.

[24] I am not persuaded that the Crown is always coercive or should be presumed to always be coercive or always acts in a coercive manner. What was argued before me falls short, far short, of persuading me that such is the case.

[25] For those reasons, I will be signing the order that I outlined at the outset, providing for a list of documents, providing full copies of the documents on that list and extending the time within which discovery is to be completed, which is in effect ordering the taxpayer to complete discoveries in accordance with the Rules, all as I said at the outset.


So who is this fearless budding Clarence Darrow presenting these four cutting-edge arguments to the court, all of which were brutally kneecapped? He's this guy;

For the Appellant: Joel Allan Sumner
Firm: Sumner LawToronto, Ontario

But he's also this guy;

JOEL ALLAN SUMNER [#243307], 38, of Toronto, was disbarred Dec. 20, 2014 and ordered to comply with rule 9.20 of the California Rules of Court.

Sumner failed to appear at his disciplinary trial which led to his default being entered. He then filed a motion to set aside the default but the State Bar Court denied it.

The charges were deemed admitted. Sumner committed an act involving moral turpitude by sending intimidating and threatening emails to San Bernardino County Chief Deputy District Attorney John P. Kochis and others.


For more details try this;

http://members.calbar.ca.gov/courtDocs/12-O-10288-2.pdf

or these;

http://www.calbarjournal.com/May2015/AttorneyDiscipline/Disbarments.aspx

http://members.calbar.ca.gov/fal/Member/Detail/243307

Apparently being disbarred from practicing law in California for moral turpitude is not a barrier to practicing law in Ontario.

According to the schedule set by the judge the case should have it's hearing on Friday February 26th so our lawyer has one more shot at it. I wait with anticipation to see how he will pull a last moment miraculous win from this series of disasters!
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Re: Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby notorial dissent » Thu Feb 25, 2016 1:51 am

This guy sounds like quite a putz. Sounds like he ought to be a Taft Law School alumni, still don't know how he got licensed in Canada, sorry he did.
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Re: Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby grixit » Thu Feb 25, 2016 7:29 am

Don't lawyers have to disclose any status they have incurred in other jurisdictions?
I voted for Hillary, and i didn't even get a stupid tshirt!

10 . . . . . . . . . . . . . . . 2
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Re: Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby Burnaby49 » Tue Mar 01, 2016 1:28 am

I said in my previous posting;

According to the schedule set by the judge the case should have it's hearing on Friday February 26th so our lawyer has one more shot at it. I wait with anticipation to see how he will pull a last moment miraculous win from this series of disasters!


My mistake, the lawyer has three more shots at it. The conventional one is to try the case on it's merits but the Tax Court has already ruled out McCarthy's best defenses, torture and tyranny. So Sumner would have to defend his client by actually applying income tax law. That hasn't worked out too well for the fiscal Arbitrators. So he's taken shot number 2 and has appealed this decision to the Federal Court of Appeal. Since there is absolutely no chance whatever that the Federal Court of Appeal will decide in Mr. McCarthy's favour this will leave him with shot number 3, an appeal to the Supreme Court of Canada. So it will take a while for the case to finally go down in flames at the Tax Court.

On the plus side I can get copies of the Federal Court of Appeal filings and post them here.
"Yes Burnaby49, I do in fact believe all process servers are peace officers. I've good reason to believe so." Robert Menard in his May 28, 2015 video "Process Servers".

https://www.youtube.com/watch?v=XeI-J2PhdGs

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Re: Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby Burnaby49 » Fri Mar 04, 2016 3:06 am

There's no point in appealing to the Federal Court of Appeal to stop the Canada Revenue Agency and the Department of Justice from torturing you if the Tax Court order allowing this infamy is not quashed, or at least stayed, until the Federal Court is made aware of the shocking facts of the CRA's depravity and inhumanity. An inhumanity almost as unconscionable as my inflicting the preceding sentence on you. So McCarthy went back to the Tax Court and requested a stay on the order requiring him to talk to the Crown and for his scheduled court hearing to be deferred.

http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/142699/index.do

And got it!

This Court orders as follows:
1. The hearing of this appeal scheduled for February 26, 2016 is adjourned sine die.
2. Counsel for the Appellant shall communicate in writing with the hearings coordinator within 60 days of the date of this order to provide a status report on the appeals to the FCA of this Court’s orders in this appeal.

I should point out that Judge Boyle, who wrote this and the prior decision, is not the trial judge. Judge Boyle is the case manager for the McCarthy appeal and other Fiscal Arbitrator appeals, essentially getting them through what I used to call procedural skirmishing on the way to trial. In this case the skirmishing seems to have turned into outright warfare. Judge Boyle took over the responsibility for managing the Fiscal Arbitrator files from Judge Rip who retired last year.

You'll note that the court order did not mention the order for discovery that it had made inthe prior decision. That was because the taxpayer had already gone to discovery and refuesed to answer question on the grounds that he was being tortured again;

[1] Counsel for the Appellant requested a stay of Mr. McCarthy's appeal on the Wednesday before the Friday upon which that appeal is set down for hearing. Mr. Sumner did so in response to communication to the Court by the Respondent that the Appellant was again in breach of an order of this Court to complete documentary and oral discoveries, being my order of February 15, 2016. Counsel for the Appellant acknowledges that they had not filed their list of documents as ordered, but maintains that this was a mistake which has been remedied. The Respondent disagrees. Counsel for the Appellant says the Appellant did attend the examination for discovery as requested by the Respondent, identified himself and objected to most of the Respondent's questions on the grounds of torture. The Respondent adjourned the examination and intends to bring a further motion. I will not be resolving the parties' concerns with discoveries at this stage, only the issue of the Appellant's request of yesterday for a stay of tomorrow's hearing.


When I'd checked at the Federal Court of Appeals I found that McCarthy had two appeals from Tax Court decision and this is explained in this decision;

[4] The appeal is scheduled to be heard this Friday by Justice Hershfield in Toronto. The appeal had previously been set down for hearing on November 27, 2015. That hearing had to be adjourned at the last minute because the Appellant had failed, without notice to the Court or the Respondent, to attend to the pretrial discovery ordered by Justice Rip notwithstanding the appointment taken out by the Respondent after consulting with Mr. Sumner. The Appellant had decided not to attend because he had appealed that interlocutory order of Justice Rip, along with another order of Justice Rip of the same day, to the Federal Court of Appeal. Those appeals have not yet been heard by the Federal Court of Appeal.


This decision goes into a significant amount of the procedural history of the appeal.

[5] The Court set down this Friday's new hearing date last November. The prior order of Justice Rip scheduling discovery fixed dates by reference to the trial date. Therefore, new dates for documentary and oral discovery were automatically triggered by Justice Rip's prior order. The Appellant failed to meet those dates.

[6] Counsel for the Appellant wrote a two-sentence letter to the Court in December 2015 requesting Mr. McCarthy's appeal be held in abeyance pending the appeals to the Federal Court of Appeal and informing the Court that discussions had opened up with the Respondent to resolve the matter. This led to a case management conference at the Respondent's request being heard by me by telephone on January 19, 2016. In that case management call, the Respondent sought new dates for discovery given the Appellant's default. The parties were both clearly interested in having the right to appeal any order I made on those two issues during that case management call. I therefore sought the parties' agreement to treat their requests as formal motions. That was not forthcoming. Mr. Sumner was initially unsure about making a motion about his request that the hearing be stayed pending decisions from the Federal Court of Appeal. He expressed concern that a formal motion gave rise to the risk of costs if unsuccessful. He asked for, and was given, time to resume the case management conference later during the day after he had time to consider whether he wished to make such a motion. Mr. Sumner ultimately decided that the Appellant did not want to bring that motion, and that he would not consent to hearing a Crown motion for new discovery dates at that time.

[7] We ended the January case management call without dealing with these matters in order that each side could file whatever motions they wished in accordance with the Tax Court of Canada Rules (General Procedure).

[8] The Respondent filed a motion to order discoveries. No motion was filed by the Appellant. The Respondent's motion was heard by me in Toronto, and decided with oral reasons, on February 11, 2016. My order was signed on February 15, 2016, along with a copy of my oral reasons allowing the Respondent's motion and rejecting Mr. Sumner's position that this Court's Judicial Administrator was an extrajudicial tyrant and that Court-ordered discovery constituted criminal torture and coercion given the anguish it is causing Mr. McCarthy as he is aware the Crown has the burden of proof with respect to his Fiscal Arbitrators penalty.


However enough of the past and on to the current legal victory. Mr. McCarthy wanted everything at the Tax Court stopped dead until such time as the Federal Court of Appeal heard his plea for relief from the merciless CRA. He didn't quite get it;

[11] On February 24, 2016 the Appellant's written position on the Respondent's request for a case management call was received. Mr. Sumner confirmed that the Appellant did not complete discovery as described above. He indicated that the Appellant appealed that order to the Federal Court of Appeal. He indicated he had asked the Federal Court of Appeal for a stay of my order in the interim. He also asked in his response for a stay from this Court. In response to a request for clarification from the Court, Mr. Sumner confirmed that he was asking the Court to have Mr. McCarthy's appeal stayed until the Federal Court of Appeal has decided the appeals before it of the three orders of this Court and that he did not think an adjournment would suffice.

[12] In the circumstances, the stay requested by counsel for the Appellant will not be granted. However, the Court will be adjourning this Friday's hearing of the appeal sine die. The Appellant will be ordered to communicate with the Court within 60 days in respect of the status of each of his appeals of this Court's orders involving Mr. McCarthy to the Federal Court of Appeal. Similar 90-day orders can be expected to follow.


There is a significant difference between a stay of proceedings, which Sumner requested, and an adjournment sine die, which he was granted. Wikipedia defines a stay as;

A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial.[1] The court can subsequently lift the stay and resume proceedings. However, a stay is sometimes used as a device to postpone proceedings indefinitely.

And adjournment sine die is defined as;

Adjournment sine die(from the Latin "without day") means "without assigning a day for a further meeting or hearing".[1] To adjourn an assembly sine die is to adjourn it for an indefinite period. A legislative body adjourns sine die when it adjourns without appointing a day on which to appear or assemble again.[2]

As I understand it this gives the Tax Court more flexibility to restart the process but also allows it to continue proceedings in respect to another matter, costs. Now I have to be fair here. Sumner has just won a major victory for his client. If you read the decision you'll find that he has had great concerns regarding the issue of costs against McCarthy. Generally the losing party pays costs as determined by the trial judge and Sumner has battled mightily to ensure that this not be inflicted on McCarthy on top of the brutal torture he's stoically enduring. He was quite specific about this during case management meetings;

[9] Mr. Sumner was given the opportunity at the hearing of the Respondent's motion to bring a motion to stay or to have the Appellant's hearing of this Friday adjourned sine die to await decisions from the Federal Court of Appeal on his appeals of Justice Rip's orders. He indicated he did not wish to do so. It was again evident that one of his considerations was his desire to minimize the risk of a cost award against the Appellant if his request was turned down. That was his decision to make on behalf of the Appellant.


Well the judge has relieved Mr. McCarthy of at least part of the anxiety that he must be feeling at the thought that costs might be eventually be imposed on him by ordering costs imposed against him right now without waiting for the outcome of the trial!

[13] This is no longer a case in which I believe costs will be best left to the trial judge. The Court is particularly concerned with the following:

1. The Appellant has twice not complied with the Court’s orders for the completion of discoveries without coming back to the Court until after the Respondent returned to the Court.

2. While the Appellant’s decision whether to, and how to, complete discoveries is his own, Mr. Sumner is counsel of record and an officer of the Court and did not inform the Court promptly of Mr. McCarthy’s refusal to appear at the previously scheduled examination, either immediately following his failure, much less when it was probably earlier clear to Mr. Sumner that his client would not be attending.

3. The Appellant, having decided that he would not bring a motion for a stay, instead again asked for a stay two days before the hearing date. This need not have been a last minute request for a stay as there were two clear opportunities to make this request earlier, one of which would even have allowed the Court to schedule another appeal in its place in an efficient use of public resources.

4. The last minute further stay request tactic by the Appellant, after not bringing a motion, has had the result of effectively forcing the Court to deal with the request by formal order as if it was a motion in order to not deprive the Respondent of her full right to appeal which she had made known in January would be important.

[14] This Court has the inherent jurisdiction to regulate its processes from abuse and costs awards may be used to do that. See, for example, Fournier v. Canada, 2005 FCA 131.

[15] I am asking the parties for their written submissions on costs within 30 days.


So, you ask, how is this a victory for our learned litigator? Because he's managed to persuade the court to shift the responsibility for paying the costs, all or partial, from his client to himself!

[16] Further, this Court has the power to order that costs be payable personally by counsel in appropriate circumstances under Rule 152 of the Tax Court of Canada Rules (General Procedure) “where a counsel for a party has caused costs to be incurred improperly or without reasonable cause or to be wasted by undue delay, misconduct or other default”. I am asking Mr. Sumner to make written submissions within 45 days on why this Court should not consider an order under Rule 152 in respect of some portion or all of any costs awarded against the Appellant in favour of the Respondent.

Now that's effective lawyering!
"Yes Burnaby49, I do in fact believe all process servers are peace officers. I've good reason to believe so." Robert Menard in his May 28, 2015 video "Process Servers".

https://www.youtube.com/watch?v=XeI-J2PhdGs

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Re: Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby Burnaby49 » Thu May 12, 2016 2:52 am

Things aren't going well for our brutally tortured appellant, his fellow appellants who we have not yet discussed who are also being brutally tortured, and their dauntless lawyer Mr. Sumner who, it turns out, has also been tortured. Becoming a torturer seems like a solid career choice in the CRA.

Actually I should say their ex-lawyer since the Law Society of Upper Canada has issued an interlocutory suspension order that Sumner stop practicing law in Ontario until they hold a conduct hearing to determine if he should be permanently barred from practicing law. They are reviewing, amongst other things, comments like this that he made to public officials in the United States;

[32] On January 4, 2016, Mr. Sumner contacted the San Bernardino County Sheriffs Dispatch (Valley) Center by telephone. A recording of that call is in evidence before this panel as is a transcript of the call. During this call Mr. Sumner said the following, as well as other things:

Hi I would like to file a complaint about a criminal enterprise.

… the San Bernardino District Attorney's Office engages in a pattern of threatening criminal defendants with prosecutions unless they pay money to a charity or other organization. They have probably done this [to] over 10,000 people they're probably one of the biggest criminal enterprises of United States of America. I have lots of evidence if you want it …

OK well then John Kochis, Chief of the San Bernardino District Attourney's [sic] office is under arrest and if he so much as moves a muscle I'll blow a fucking hole through his brain ok. That man is fucking guilty right he's under arrest, bang mother fucker, bang bang bang bang bang mother fucker.

he's fucking dead. That fucking ... [unintelligible] ... Fucking dead that fucking piece of shit mother fucker is under arrest, you understand me? He's fucking under arrest and you are too if you think ... [Unintelligible] ... you have to arrest that mother fucker he's a fucking gangster .. . [unintelligible] ... he's under arrest.

[33] Based on both the recording and the transcript of this call, Mr. Sumner appears to have been highly agitated at this time.


More on that later. First the next step in the saga of McCarthy's attempts to get the Tax Court to allow him all of his false expenses while refusing to provide the Crown with any information. In my last post I wrote;

So, you ask, how is this a victory for our learned litigator? Because he's managed to persuade the court to shift the responsibility for paying the costs, all or partial, from his client to himself!


The court had asked for submissions from both parties (well, three parties now that Sumner might be on the hook for costs) prior to holding a hearing on costs. The cost hearing has been concluded and the results weren't favourable to our dauntless litigator or his client.

ORDER
Upon reviewing submissions on costs from counsel of both parties, the Court orders as follows, in accordance with the attached reasons:

1. The Appellant shall pay costs to the Respondent fixed at $5,052 within 30 days of the date of this order.

2. Counsel for the Appellant shall reimburse the Appellant one half of such costs award, being $2,026, promptly upon the payment of such costs to the Respondent.

3. Counsel for the Appellant shall send a copy of this order and the reasons for order promptly to the Appellant.


It is very unusual for counselto be assessed costs personally. It requires very egregious conduct on the part of the lawyer before the court imposes this. The judge's authority for imposing these costs is in Section 152 of the Tax Court of Canada Rules which states;

Liability of Counsel for Costs

152 (1) Where a counsel for a party has caused costs to be incurred improperly or without reasonable cause or to be wasted by undue delay, misconduct or other default, the Court may make a direction,

(a) disallowing some or all of the costs as between the counsel and the client,
(b) directing the counsel to reimburse the client for any costs that the client has been ordered to pay to any other party, and
(c) requiring the counsel to indemnify any other party against costs payable by that party.

(2) A direction under subsection (1) may be made by the Court on its own initiative or on the motion of any party to the proceeding, but no such direction shall be made unless the counsel is given a reasonable opportunity to make representations to the Court.

(3) The Court may direct that notice of a direction against a counsel under subsection (1) be given to the client in the manner specified in the direction.

Costs in Vexatious Proceedings

152.1 Where a judge has made an order under section 19.1 of the Act, costs may be awarded against the person in respect of whom the order has been made.


The judge had no problem fitting Sumner's conduct into the legislation;

[4] I now turn to the Rule 152 issue raised by the circumstances of this case. The most reasonable inference I see from the facts of this case, from what was argued, and from what was said and what was not said, is that Mr. McCarthy’s initial decision to not attend the originally scheduled discovery, and his subsequent refusal to answer questions when he attended his second, were made on the advice of his counsel that he was not required to do so on grounds of claims of torture and unlawful coercion.

[5] This implicates counsel directly and causally to the breaches by Mr. McCarthy of orders of this Court to complete discoveries. At least one of the examination dates had been scheduled with Mr. Sumner’s input. He did not inform the Respondent in advance of the failure to attend.

[6] The more complete chronology and listing of concerns with the non�attendance and non-completion of discoveries can be found in my earlier reasons on the merits of these motions.

[7] In the grounds put forward by counsel in support of his position that this Court’s ordinary pretrial discovery process constituted torture and unlawful coercion, he was unable to put forward anything approaching an arguable case and the authorities he cited fell far short of saying what he said that they did. I am tempted to compare the sophomoric arguments advanced to those one might expect to hear in a high school civics or Canadian law class, or to hear amongst young adults at a family dinner table, but I am not sure that would be entirely fair to Canadian high school students or family dinner times.

[8] My costs award against the Appellant reflects the appropriate non-punitive contributions set in the Tariff as the portion of the Respondent’s costs that should be borne by the unsuccessful appellant. The Rule 152 issue is whether his counsel should be required to reimburse Mr. McCarthy in respect of all or a portion of those costs.

[11] The Appellant’s waste of the time and resources of both the Respondent and of the Court are a waste of public resources. One of the purposes of Rule 152 is to discourage the wasting of such valuable, limited and expensive public resources by officers of the Court who are counsel to a party. What can reasonably be described as wasting resources needs to be determined cautiously, charitably and generously in order to ensure that the courts do not discourage counsel from fearlessly representing their client’s interest including putting forward novel, unpopular or heretofore unrecognized positions.

[12] In these circumstances, I am entirely satisfied that the requirements of Rule 152 and the preconditions for the Court’s inherent power are met. Costs have been necessitated without reasonable cause, and costs have been wasted by undue delay at the very least. I am satisfied this is an exceptional case in which it is appropriate to order that an award of costs be borne by counsel personally. What I wrote in paragraphs 26 through 28 of Dacosta v. The Queen, 2008 TCC 136 (CanLII), quoted in 9128-8456 Québec, above, applies equally to counsel’s performance in this case to date.


McCarthy v. The Queen, 2016 TCC 86
http://canlii.ca/t/gphrq

Now, on to Mr. McCarthy's fellow appellants. There are currently four that I'm aware of who have used the services of Mr. Sumner to expose the depredations of the CRA. The first two were involved in this decision;

Oberkirsch v The Queen, 2016 TCC 84
http://canlii.ca/t/gphrs

They are not fighting the reassessment of their claimed false expenses but are appealing the gross negligence penalties. First that old tried and true; torture;

[10] Counsel acknowledged that his torture arguments, aside from his position regarding the burden of proof, are the same as he advanced in McCarthy No. 1. I decided McCarthy No. 1 against the taxpayer and that decision has been appealed to the Federal Court of Appeal. I remain of the view that this line of argument is devoid of any possible merit whatsoever. As I said in McCarthy No. 1, enough said.

[11] Mr. Sumner argued at the hearing that case law on evidentiary burden of proof was clear that in torture cases, once a party complains of torture, the onus shifts to the other party to prove that the act complained of was not torture. When asked, he did not have any case law developed for the hearing so I agreed to allow him to file written submissions on this point. They were received and reviewed. These submissions and the authorities put forward do not persuade me at all that the Respondent should bear the burden of proving that an examination for discovery would not be torture.


Then on to the violation of their rights under the Canadian Bill of Rights;

[15] As in McCarthy No. 1, the Appellants herein maintain they have been deprived of their property without due process in violation of the Bill of Rights upon the reassessments being issued by the Canada Revenue Agency. As in McCarthy No. 1, counsel for the Appellants found it easier to describe and identify the deprivation than to identify and describe the property of which the Appellants were deprived. He agreed that I described his position accurately in McCarthy No. 1 that the property was each Appellant’s right to not be legally obligated to pay money to the government, which obligation resulted in law from the reassessment.

[16] That is simply not a property right of the Appellants. There is no recognized property in what counsel is describing. The position of counsel for the Appellants is that property includes rights and choses in action. He goes on that a debt is property. The problem that he cannot surmount is that, with respect to a debt, the holder of the right that could be considered property is the creditor. The debtor is not the holder of the right under the debt, the debtor bears the burden of the debt. No authority was put forward for the proposition that the debtor’s obligation is a property, an interest in property or a property right of the debtor.


Apparently Mr. Sumner has deduced that the Bill of Rights, legislation passed by the government of Canada, includes the provision that the government can't compel Canadians to give it any of their money. If he's right a very foolish move on the government's part since it would seem to make it difficult to finance government operations under that interpretation. Such as the Tax Court of Canada.

So the Tax Court judge, thinking only of his own paycheck, denied Sumner's well-reasoned argument;

[18] The Appellants’ Bill of Rights argument is therefore baseless.


So on top the second argument. Make Canada a leader amongst Western nations by allowing the appeal!

Universal Declaration of Human Rights

[19] The United Nations’ Universal Declaration of Human Rights provides that no one shall be arbitrarily deprived of their property. The Appellants’ position under this U.N. Declaration must also fail as, for the reasons given above with respect to the Canadian Bill of Rights, the reassessments did not deprive the Appellants of property, nor could they be said to be arbitrary given the scope of the objection and appeal rights granted in the same legislation in respect of the reassessments in issue.

[20] In his original written submissions in support of his motions, counsel for the Appellants wrote two paragraphs under the heading “Conclusion”. They read as follows:

Providing notice and an opportunity to contest a tax assessment before a Court or tribunal is required by the due process clause of the Bill of Rights. It is not impossible, as in the United States, except with jeopardy and termination assessments and some minor other exceptions like assessing interest, they provide taxpayers with a notice of deficiency, which is quite literally a taxpayer’s ticket to tax court.

In addition, providing Canadians with due process before an assessment is made would put Canada as a leader amongst Western nations for providing a robust tax system that listens to taxpayer’s concerns before they are deprived of their property.


[21] Conclusions that a different approach to providing due process would not be impossible and would make Canada a leader amongst Western nations clearly fall short of a persuasive argument to a court that a judicial remedy is available or required under existing Canadian law.


But again, the judge saw fit to stomp on this argument too;

[22] The Appellants’ motions will be dismissed for the above reasons.


And yet another hint that Sumner might be ordered to dig into his own pockets to finance his client's ongoing litigation;

[26] It also appears to me that costs on these motions should most appropriately be dealt with as in McCarthy No. 2 and for similar reasons. Written submissions on costs are to be filed within 30 days of the date of the order herein, including submissions from counsel for the Appellants with respect to the possible application of Rule 152.


McCarthy No. 2 is the case I just reviewed above.

Now on to our last pair of appellants. They seem to have made the regrettable rookie mistake of not retaining Mr. Sumner immediately when they started their appeal and lived to regret that foolish decision. I'm only surmising this from the contents of this decision;

Di Mauro v. The Queen, 2016 TCC 87
http://canlii.ca/t/gphrr

Which related their attempts to make some retroactive changes to their Amended Notice of Appeal by substituting a New Amended Notice of Appeal in its place. This is a Notice of Appeal;

http://cas-cdc-www02.cas-satj.gc.ca/tcc-cci/forms/general_appeal_form21(1)(a)_e.pdf

It sets out the issues under appeal, the statutory provision to be relied on, and the reasons for the appeal. Once an appeal starts this cannot be changed without the permission of the court and the appellant can't argue any reasons, or rely on any statutory relief, not in it.

The appellants were allowed to amend but when they came back for yet another amendment the court refused permission. So they went off in a huff to the Federal Court of Appeal to get an order from the FCA requiring the Tax Court to allow yet another amendment. But the FCA refused. Notwithstanding that the appellant made yet another demand to the Tax Court that they be allowed to amend their Notices of Appeal and, not surprisingly, the Tax Court refused yet again. So what earth-shaking arguments required that they be allowed to amend a second time? These;

[1] The Appellants, Giovanni (John) Di Mauro and Debora Do Couto, are represented by the same counsel with respect to what they describe as their Fiscal Arbitrators fictional principal/agent generated losses. They have each filed motions to file New Amended Notices of Appeal to replace their Amended Notices of Appeal. They have asked that the motions be decided based upon their motion material without an appearance. I have reviewed and considered both parties’ materials for these motions.
[2] Each of the Appellants previously sought to file Fresh Amended Notices of Appeal to replace their Amended Notices of Appeal. This Court did not allow it. Their appeals to the Federal Court of Appeal were unsuccessful in those regards.

[3] To the extent the proposed New Amended Notices of Appeal seek to add facts, matters, issues or reasons sought to be added in their previous Fresh Amended Notice of Appeal, this motion is highly improper and inappropriate.

[4] To the extent the proposed New Amended Notices of Appeal seek to add a deprivation of property rights without due process‎ Bill of Rights issue, and/or to add an arbitrary deprivation of property United Nations Universal Declaration of Human Rights issue, they would not disclose a reasonable cause of action nor have any prospect of success. These arguments have been made unsuccessfully in Fiscal Arbitrators cases already: see Oberkirsch and Dupuis (2016 TCC 84 (CanLII)). Such new amendments will not be allowed.

[5] To the extent the proposed New Amended Notices of Appeal seek to add a cruel and unusual punishment Charter argument, counsel has not provided the Court with any support or authority to allow it to conclude that this is a reasonable cause of action and would have a reasonable prospect of success. It is not the motions judge’s job to do counsel's work. I am not satisfied that this would disclose a reasonable ground for appeal.

[6] The Appellants’ motions are dismissed, with costs. The appeals are to proceed based on the Amended Notices of Appeal as specified in the Reasons for Judgment of the Federal Court of Appeal.


Then, right at the critical moment in all of this paradigm-changing, earth-shattering litigation, disaster struck. Joel Allen Sumner was kicked off of the case!

Law Society of Upper Canada v. Sumner, 2016 ONLSTH 66
http://canlii.ca/t/gp9xq

Summary:
SUMNER – Interlocutory Suspension – Conduct Unbecoming – Threats – The Society’s motion for an interlocutory suspension, pending a conduct application, was granted – The Lawyer previously lived in California where he practised as a lawyer – An incident occurred there that resulted in his arrest, but the charges were ultimately withdrawn and he obtained a declaration of factual innocence – The Lawyer considered that he was unfairly and unlawfully dealt with in that process – In his ongoing attempt to right that wrong, as he saw it, the Lawyer made threatening and harassing communications regarding the California District Attorney involved in that matter – The threats were at least intended to cause the District Attorney mental pain and suffering – Physical pain and suffering to him were threatened as well, although the Lawyer may have had no real expectation of actually acting, or of causing anyone to actually act, as threatened – The Lawyer purported to seek the assistance of two biker gangs to arrest the District Attorney under California law, made express reference to death and serious bodily harm and made this broadly known, including to the District Attorney – The Lawyer’s actions were inconsistent with respect for the administration of justice and the rule of law – His communications regarding the District Attorney created a significant risk that public confidence in the legal profession and the administration of justice would be harmed if he were allowed to continue to practise pending his hearing – The Lawyer made it clear that he would not stop such behaviour, pending his conduct hearing – The Lawyer also made threatening communications in response to actions by the Society – Threats against the Society in response to regulatory scrutiny also give rise to reasonable grounds for believing that there is a significant risk of harm to the public interest in the administration of justice, if not effectively addressed.


Read it for yourselves, it's not long. This probably didn't help his case;

[31] In May 2015, Mr. Sumner was advised that the Law Society Proceedings Authorization Committee (“PAC”) had authorized a discipline proceeding and that a Notice of Application would be served shortly. In response, Mr. Sumner sent an e-mail to Law Society Discipline Counsel stating (emphasis added):

Any person who knowingly takes or withholds an act, including an official act, to comfort a gangster from my summons for assistance for his arrest will not only be the subject of a civil lawsuit, but also of a citizen’s arrest. I do not know what you know, so I am refraining from making a claim at this moment and time regarding your behaviour. However, the members of the committee who were involved in any official decision are under arrest.


Or that he sent this to the Law Society of Upper Canada a few months ago;

[35] On February 19, 2016, Mr. Sumner was advised by e-mail that this motion had been authorized and would be brought. He responded by e-mail to Law Society Discipline Counsel as follows:
You are taking or withholding an official act for the purposes of comforting or insulating an extortionist who used coercion and crossed the line between public and private beneficiaries. Mr. Kochis is under arrest, if he so much moves an inch, I will consider my life to be in danger and I will pop two shots into the side of his head!!!


He tried to get all of the communications in respect to his American squabble excluded from the Law Society hearing on the basis, surprise, surprise, that he's now being tortured and extorted.

[39] Mr. Sumner seeks an order excluding evidence of these communications on the basis that these communications are statements obtained as result of torture and extortion. Mr. Sumner’s motion for exclusion is based on the alleged impropriety of accepting and requiring a release, in exchange for not opposing his petition for a declaration of factual evidence.

[40] Mr. Sumner relied on s. 269.1(4) of the Criminal Code, which provides that statements obtained as a result of a commission of an offence under s. 269.1 of the Criminal Code are inadmissible in evidence in proceedings over which Parliament has jurisdiction. While this is not a proceeding under Parliament’s jurisdiction, the Law Society properly agrees that no such evidence should be admitted here.


However the Law Society refused the pleas of a broken tortured man and, on April 6, 2016, issued an Interlocutory Suspension prohibiting him from practicing law in Ontario.

Sumner's Conduct Application hearing is in June. No doubt his legal eloquence and impassioned rhetoric ("I'll blow a fucking hole through his brain ok. That man is fucking guilty right he's under arrest, bang mother fucker, bang bang bang bang bang mother fucker") will win the day and he'll soon be back defending his Fiscal Arbitrator clients but, until then, they'll just have to hang in there.
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https://www.youtube.com/watch?v=XeI-J2PhdGs

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Re: Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby notorial dissent » Thu May 12, 2016 5:13 am

The man sounds like he is stark staring raving bonkers. I'd say he has no business practicing law any more than he has being out on his own. He sounds like he could get violent at any time, and he certainly is not competent counsel.
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Re: Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby Arthur Rubin » Mon May 16, 2016 4:49 pm

I'm confused. Was he practicing law in Canada or in San Bernardino County, California? It seems unlikely that he would be licensed in both jurisdictions....
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Re: Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby Burnaby49 » Mon May 16, 2016 7:57 pm

Arthur Rubin wrote:I'm confused. Was he practicing law in Canada or in San Bernardino County, California? It seems unlikely that he would be licensed in both jurisdictions....


His background is unclear, I'm assuming dual citizenship. Yes, he practiced law in both countries. As I follow the story he only started practicing in Ontario after he was in trouble down in California;

According to the summary of facts, Sumner had been charged in California in 2007 with battery and vandalism against a roommate. Sumner signed an agreement of compromise, settlement and mutual release in 2010 releasing himself and the roommate from any further claims arising from the 2007 altercation. He was granted a declaration of factual innocence in 2010 after signing the mutual release.

According to the summary, at some point after signing the release, Sumner came to the conclusion that Kochis “knew” the allegations against him were based on lies and he had been coerced into signing the release. Sumner then began to accuse Kochis of criminal offences, including coercion and extortion, and sent e-mails to him or about him to others that eventually lead to his California disbarment.

Sumner argued he was effectively kidnapped by police when wrongfully arrested in 2007 with Kochis engaging in extortion and torture “by insisting on the settlement/release before agreeing to the Deceleration of Factual Innocence.” He says Kochis extorted him when Kochis forced him to sign the release in exchange for not opposing the motion for declaration of innocence.

. . . .

It goes on to say Sumner began sending threatening e-mails to Kochis as early as 2011, leading to criminal charges in February 2012 and his disbarment in 2014. He was called to the Ontario bar in January 2012.


http://www.canadianlawyermag.com/legalfeeds/3151/lawyer-disbarred-in-california-fighting-to-keep-ontario-licence.html

Apparently he's still facing criminal charges in California;

According to the LSUC factum, Sumner is still facing 27 criminal charges with an outstanding warrant in relation to those emails in California.
"Yes Burnaby49, I do in fact believe all process servers are peace officers. I've good reason to believe so." Robert Menard in his May 28, 2015 video "Process Servers".

https://www.youtube.com/watch?v=XeI-J2PhdGs

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Re: Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby Anon » Sat May 21, 2016 9:52 pm

I went to law school with this attorney and recently looked him up on the American Website called Avvo.

He grew up in Toronto CA. He's a Canada Citizen and I believe, he's got duel citizenship in Israel, but isn't a citizen in America. After graduating with a degree in Economics, he was accepted to Whitter Law School in Costa Mesa. He graduated with a focus on business law and sat for the California BAR exam. Sumner graduated top 1/3 of his class. While waiting for BAR results in California, he attended Chapman University for a LLM in Taxiation, practiced for a small firm in Orange County, CA before moving to New York to work as in house counsel for Delotte. After the financial meltdown of 2008, he moved back to California to room with a friend whom both of us went to law school with. This attorney worked as a Riverside County, DA. They were living in San Bernardino County.

Somehow, they got into a disagreement and the police were called, which led to assault charges. Eventually these charges were dropped and he petitioned the court for a factual finding of innocence so that the arrest would be taken off his record. Apparently, this is where the DA negotiated that if he donated money to the local batter's shelter and agree not to sue the roommate, the DA would not oppose this motion. He accepted the DA's offer and the arrest was stricken from his record..

and THAT's where all hell broke lose......

Sumner flipped out, called the DA and wrote crazy emails, all of which you've mentioned. The DA then filed 27 criminal charges (felony) for threats made unto him and likely reported him to the CA BAR.

In the middle of this, he returned to Canada and began the requirements to be licensed in Canada.

CA Bar began disciplinary hearings and Sumner missed a trial date (likely because the CA BAR makes you pay $5k a day in advance for trial proceedings). Sumner lost by default for non-appearance. He appealed, but the appeal was denied. Subsequently, he was disbarred in CA.

I was absolutely shocked to see that he was disbarred because in the time I knew him, he was ridiculously cautious and afraid of any BAR involvement. When I saw his status, I began research the reason behind the issues out of curiosity because getting disbarred was not like him at all.

Mr. Sumner has likely spent nearly 200k on his legal education.

I seriously can't believe he's done this. In the time I knew him, he was outgoing, social, and law fearing. Becoming an attorney was the most important accomplishment in his life and he would never jeopardize his BAR card.

His obsessive rantings about torture are absolutely absurd and the fact that he has failed to switch arguments, to me, is a demonstration of the fact he's clearly no longer rational.

The only thing I can possibly think that could account for his behavior is mental deterioration, which if true, is extremely sad.

Please bare in mind that I have not had contact with him in nearly a decade and since we graduated school.
Last edited by Anon on Sun May 22, 2016 1:27 am, edited 1 time in total.

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Re: Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby Burnaby49 » Sat May 21, 2016 10:29 pm

Thanks for the background.

I assumed from his self-destructive and incessant harassment of the California DA that he has mental issues. His actions make no sense otherwise. Given the grotesquely absurd, totally hopeless arguments he's making in the Fiscal Arbitrator cases he clearly shouldn't be representing litigants.
"Yes Burnaby49, I do in fact believe all process servers are peace officers. I've good reason to believe so." Robert Menard in his May 28, 2015 video "Process Servers".

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Re: Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby Anon » Sun May 22, 2016 1:25 am

Agreed but it's so very sad to know him one way and see him another way now.

How frightening losing your mind must be.

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Re: Doug McCarthy - A Fiscal Arbitrator tortured by the CRA!

Postby Hercule Parrot » Sun May 22, 2016 9:43 pm

ORDER
Upon reviewing submissions on costs from counsel of both parties, the Court orders as follows, in accordance with the attached reasons:

1. The Appellant shall pay costs to the Respondent fixed at $5,052 within 30 days of the date of this order.

2. Counsel for the Appellant shall reimburse the Appellant one half of such costs award, being $2,026, promptly upon the payment of such costs to the Respondent.

3. Counsel for the Appellant shall send a copy of this order and the reasons for order promptly to the Appellant.


Half of $5,052 is $2,526...
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