They make 'em dumb in Canada too

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They make 'em dumb in Canada too

Postby Demosthenes » Wed May 19, 2010 7:40 pm

http://www.windsorstar.com/Klundert+eva ... story.html

Excerpt:

Klundert, 58, is charged with wilfully evading more than $348,000 in taxes by failing to report the $1.5 million he earned between 1993 and 1997.

Klundert maintains that he didn’t evade anything, given that he filed income tax returns for those years, providing his name, address and social insurance number. But rather than fill in financial information, he said he wrote a note on his returns denying the right of the Canadian government to charge tax.
Demo.

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Re: They make 'em dumb in Canada too

Postby bmielke » Wed May 19, 2010 7:52 pm

A Medical Professional big surprise.

Windsor optometrist Jack Klundert’s testimony that he was a tax protester or that he considers the Income Tax Act unconstitutional are no defence in his tax-evasion trial, a jury was told Wednesday.

Read more: http://www.windsorstar.com/Klundert+eva ... z0oP2mu4gG

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Re: They make 'em dumb in Canada too

Postby Burnaby49 » Tue Feb 05, 2013 2:51 am

Time for an update on Mr. Klundert. It took three trials to find the guy guilty of tax evasion, not because his guilt wasn't abundantly clear but because of boneheaded jury instructions by the first two judges. In the first trial Klundert's defense was that he didn't pay his tax because he had a sincere heartfelt belief that he wasn't required to. He was pulling the Porisky "natural person" argument explored in the "The Infection is Heading North" thread;

viewtopic.php?f=8&t=7827

Although this is not a defense in law in Canada (we have no Cheek equivalent) the judge actually instructed the jury that if they believed that Klundert had a sincere belief that he did not have to pay tax he was innocent of tax evasion. So the jury found him innocent.

The Crown appealed this and the appeals court slapped the judge around a bit and ordered a new trial. Klundert used the same defense again. As the appeals court said in respect to the second trial;

[11] At his second trial, despite this court’s ruling, the respondent again took the position that the Act was beyond the powers of the federal government. However, he did not argue that he failed to pay taxes that he knew were owed because he believed the Act to be unlawful and so inapplicable. Rather, he explained his failure to pay taxes as arising from his belief that he was not obligated to pay taxes. Klundert took the position that he was not obligated to pay income tax because he believed the Act does not apply to him. Klundert testified that he is neither a “person” nor a “taxpayer” as defined in the Act.

[12] The “defence” offered by the respondent at his second trial was merely a nuanced version of the defence offered at his first trial, a defence this court held was unavailable to him.


However the judge in the second trial, while stating that Klundert couldn't use this argument, allowed him to use it!

[24] In his charge, the trial judge correctly told the jury that the respondent’s evidence that he was a tax protestor did not provide a defence to the charge of tax evasion and did not go to the issue of Klundert’s intent to evade the payment of taxes. However, when he put the position of the defence to the jury, he stated that it was the position of the defence that:

[A]ny rational person could not have intended to evade by acting in the manner of the accused. They should acquit unless they are satisfied beyond a reasonable doubt that his stated intention to solely protest was not his honest intent.

[25] In so doing the trial judge erred in law. Where as a matter of law a defence is not available to an accused, it must not be put to the jury. Where defence counsel argue such a defence before a jury, the trial judge’s obligation is to clearly and unequivocally tell the jury that defence counsel was in error and that arguments to that effect cannot be relied upon in coming to a verdict.


http://www.canlii.org/en/on/onca/doc/20 ... ca767.html

So the appeals court ordered a third trial. This time the judge stomped all Klundert's attempts to argue that he really, really, really didn't believe he had to pay tax and the jury found him guilty of tax evasion in 2010. He was ordered by the Ontario Superior Court of Justice to pay a fine of $522,346.73 with respect to the taxation years 1993 through 1997 and in 2011 was ordered to pay a further $101,393.80 pursuant to a conviction for income tax evasion for the years 2000 to 2005.

However, while guilty of tax evasion Klundert, like Chandler Turnnir, the idiot in "The Infection is Heading North" has decided to go to Tax Court to argue the correctness of his assessments. Normally in Canada when a taxpayer appeals to Tax Court, as Klundert is doing, he does not have to pay the taxes assessed until his appeal is finalized. However in this case the Canada Revenue Agency got a court approved jeopardy order way back in the late 1990s allowing them to seize Klundert's funds regardless of any pending appeals because of a not unnatural concern that, by the time the glacially slow process came to a conclusion, Klundert would have placed his assets outside of the government's reach.

Klundert recently went to the Federal Court of Appeal to get the court to order the Canada Revenue Agency to allow him to determine how the $871,291.90 collected under the jeopardy order was to be applied. The FCA just issued a short totally unsympathetic decision telling him to get lost;

[7] Should at the end of the day Dr. Klundert be successful before the Tax Court of Canada, the money collected under the jeopardy order will be applied to other tax years or returned to him as the case may be.

I'm awaiting, with great interest, the eventual Tax Court decision to find out what arguments Klundert presented there.
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Re: They make 'em dumb in Canada too

Postby wserra » Tue Feb 05, 2013 12:25 pm

Burnaby49 wrote:Although this is not a defense in law in Canada (we have no Cheek equivalent)
...
The Crown appealed this and the appeals court slapped the judge around a bit and ordered a new trial.
...
So the appeals court ordered a third trial.


No Cheek and no double jeopardy? Man, you guys are jack-booted thugs.

Would you please take some of our idiots?
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Re: They make 'em dumb in Canada too

Postby Famspear » Tue Feb 05, 2013 4:14 pm

wserra wrote:
Burnaby49 wrote:Although this is not a defense in law in Canada (we have no Cheek equivalent)
...
The Crown appealed this and the appeals court slapped the judge around a bit and ordered a new trial.
...
So the appeals court ordered a third trial.


No Cheek and no double jeopardy? Man, you guys are jack-booted thugs.

Would you please take some of our idiots?


Boy, that's right. Let our Canadian cousins run our wackadoosters through their legal system.

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Re: They make 'em dumb in Canada too

Postby Burnaby49 » Tue Feb 05, 2013 7:38 pm

wserra wrote:
Burnaby49 wrote:Although this is not a defense in law in Canada (we have no Cheek equivalent)
...
The Crown appealed this and the appeals court slapped the judge around a bit and ordered a new trial.
...
So the appeals court ordered a third trial.


No Cheek and no double jeopardy? Man, you guys are jack-booted thugs.

Would you please take some of our idiots?


You kicked the Crown out over some petty hissy-fit about tea, we kept it. As subjects of the Crown we just do what the Queen tells us. So blame her for the thuggery.
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Re: They make 'em dumb in Canada too

Postby Pottapaug1938 » Tue Feb 05, 2013 7:48 pm

I just thought of a perfect and timely punishment for Klundert. He should be incarcerated at a spot near where all the pennies which are being withdrawn from circulation are to be sent. Make him count them, one by one, and manually sort the old bronze ones from the plated-zinc and plated-steel varieties, in the same manner. That ought to keep him busy for a while....
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Re: They make 'em dumb in Canada too

Postby grixit » Wed Feb 06, 2013 7:23 am

the hope finding a 42 copper can sustain him.
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Re: They make 'em dumb in Canada too

Postby Pottapaug1938 » Wed Feb 06, 2013 12:57 pm

grixit wrote:the hope finding a 42 copper can sustain him.


Well, he's Canadian, so maybe the object of his dreams can be a 1936 "dot" cent....
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Re: They make 'em dumb in Canada too

Postby notorial dissent » Wed Feb 06, 2013 1:41 pm

Somehow, based on what has been said, more likely to spend it in a penny gumball machine.
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: They make 'em dumb in Canada too

Postby Burnaby49 » Mon Feb 11, 2013 6:59 am

A newspaper aticle on Klundert that makes him look like a stalwart defender of our constitutional rights. What he really shows in the quotes is bone-headed stubborness and ignorance bound together by an ego that will not let him admit, even to himself that, he could be wrong. He just read a few documents and suddenly he was a tax expert showing how generations of taxpayers have been wrong. One area of bias in the article is the way it is written to make his three trials look like government harassment of an innocent man rather than the result of incompetent handling of the trials from the bench.

http://news.nationalpost.com/2013/02/10 ... ncome-tax/

And here's yet another Porisky follower I previously missed that used Porisky's can't-fail methods and ended up in jail;

http://news.nationalpost.com/2011/11/25 ... -over-her/

Her refusal to attend trial cost her a six month jail sentence she would have otherwise avoided;

http://www.winnipegfreepress.com/local/ ... 83123.html

The newspaper article is incorrect about the reason for her jail term. She didn't get the jail time for tax evasion, she got it for skipping out and refusing to abide by conditions set for a conditional sentence. To quote;

"With all due respect, I do not accept this offer," Chobotar told provincial court Judge Lynn Stannard before being taken into custody. "This offer is not accepted," she said as court officers gathered her purse and jacket and led her away for transfer to the women's jail.

Where have we heard that one before?

Although Chobotar has no criminal record, the judge said she couldn't impose a conditional sentence on the 53-year-old woman because she wouldn't abide by the conditions.

At the beginning of her sentencing hearing Monday, Chobotar submitted a letter to the court saying "At no point have I ever willingly agreed to legally represent a taxpayer in these proceedings and I certainly have never agreed to do it for free... I charge a standard fee of $10 million to carry out any court order that this court issues."

The judge said it wasn't mental illness, fraud or concealment but "self-centred greed" that led Chobotar to claim she doesn't have to pay income tax.

Chobotar has shown no remorse, the judge said before sending her to jail as a deterrent and a denunciation.

"She has displayed a lack of respect for the court and the risk to reoffend is a concern," Stannard said.


The judge felt that there might be just a touch of hypocrisy in her stance;

She didn't want to pay any taxes but a good chunk of her living came from them, the court heard. More than 40 per cent of her income came from billing Manitoba Health, Manitoba Public Insurance and the Workers Compensation Board, which benefit from government funding provided by taxpayers.

Stannard said Chobotar didn't choose to live on an "island" but benefited from taxpayer-funded services such as roads, police and fire protection and schools. Chobotar didn't want to pay her fair share and didn't care if others would have to pay more, the judge said.
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Re: They make 'em dumb in Canada too

Postby Burnaby49 » Wed Mar 27, 2013 12:45 am

An update on Mr. Klundert. In a previous post I said:

Klundert recently went to the Federal Court of Appeal to get the court to order the Canada Revenue Agency to allow him to determine how the $871,291.90 collected under the jeopardy order was to be applied. The FCA just issued a short totally unsympathetic decision telling him to get lost;

[7] Should at the end of the day Dr. Klundert be successful before the Tax Court of Canada, the money collected under the jeopardy order will be applied to other tax years or returned to him as the case may be.

I'm awaiting, with great interest, the eventual Tax Court decision to find out what arguments Klundert presented there.


Well he is now appealing this decision. They guy just can't quit trying to convince courts he is right. One difference this time. In previous cases he was represented by Doug Christie. For those of you who don't know about Christie he was the lawyer of last resort because he would represent anyone over anything. Holocaust deniers, hate speach prosecutions, human rights criminals, Doug was the go-to guy. Not a particularly good lawyer and lost almost all of his cases but he tried. Wserra comments frequently that everyone deserves a defense (agreed) and Christie was it for a lot of the fringe elements. His clients generally lost badly because they would rather go down in flames than cut a deal and they were an unsavory bunch to put in front of a jury. Anyhow Doug died last month and, while he received a lot of negative press, he served a necessary purpose.
"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: They make 'em dumb in Canada too

Postby grixit » Wed Mar 27, 2013 6:55 am

Agreed. I've always maintained that even if someone were nabbed right in the middle of the Superbowl spraying the crowd with a machine gun, they're still entitled to a trial, to plead not guilty and to be represented by a lawyer who'll at least pretend to believe them. It is the only way to make certain that the rest of us would have full rights if we were subject to criminal charges.
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Re: They make 'em dumb in Canada too

Postby Burnaby49 » Wed Mar 27, 2013 7:55 am

Bit of an addendum to my previous post. Christie can be found on Wikipeida at:

http://en.wikipedia.org/wiki/Doug_Christie_(lawyer)

Wikipedia gives a list of some of his clients which included:

Ernst Zündel, holocaust denier
Terry Long, former leader of the Aryan Nations in Canada;
Malcolm Ross, a teacher fired for anti-Semitic activity;
three alleged leaders of the Ku Klux Klan in Manitoba;
Rudy Stanko of the World Church of the Creator;
Tony McAleer, charged with broadcasting hate speech over the phone and online;
John Ross Taylor of the Western Guard Party and Aryan Nations;
Imre Finta, alleged to be a Nazi war criminal and collaborator
Doug Collins, newspaper columnist brought before the British Columbia Human Rights Commission for antisemitic and racist comments;
Paul Fromm, head of the far-right "Citizens for Foreign Aid Reform" and "Canadians for Freedom of Expression", and participant in neo-Nazi and racist gatherings, who was fired from his job as a teacher for his political activity;
Lady Jane Birdwood, British follower of Oswald Mosley and distributor of hate propaganda;
Wolfgang Droege of the Heritage Front;
David Ahenakew, who acknowledged making antisemitic comments in a 2002 interview with the Saskatoon StarPhoenix
Jack Klundert, a Windsor optometrist who does not believe the Constitution of Canada grants the Federal Government the power to collect income tax

Hate speach and human-rights enthusiasts used to go nuts over his defense of these types but they were entitled to legal representation and Christie was willing to take on the job, unlike many lawyers who feared sullying their reputations. Not many of his clients had much money and he didn't get rich by representing them. The Law Society of British Columbia noted, when they found him guilty of professional misconduct, that he was only making about $50,000 a year (not a lot in Vancouver-Victoria) and so cut him a deal on penalties.
"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: They make 'em dumb in Canada too

Postby Burnaby49 » Wed Jul 03, 2013 1:56 am

Just after I mentioned Klundert as part of a mea culpa in this thread;

viewtopic.php?f=8&t=9373&start=40

He pops up again in court still pursuing justice as he sees it.

http://decision.tcc-cci.gc.ca/en/2013/2 ... cc208.html

This time it's Tax Court in Victoria, right in my own backyard. Klundert is still fighting ancient battles, trying to get his 1993 to 1996 reassessments reversed. He had previously been criminally convicted for having evaded tax on about $1,500,000 of unreported income in those years. However he doesn't think it fair that his conviction should be considered sufficient reason for the Canada Revenue Agency to actually demand that he now pay taxes on this amount. So he went to Tax Court to flog the same dead horse that he he'd previously ridden to criminal court. Essentially the CRA were meanies who didn't treat him nice. To wit:

[8] In essence argues the Appellant, the information obtained under the CRA's investigative powers were used in pursuance of its criminal investigation and trial contrary to the principles enunciated in the Supreme Court of Canada's ruling in R v Jarvis, [2002] 3 SCR 757, which found that the use of audit functions to further criminal investigation infringes upon sections 7 (the right to life, liberty and the security of the person) and 8 (the right to be secure against unreasonable search and seizure) of the Charter, and accordingly, any evidence obtained from such improper searches, including any of the admissions made by the Appellant in any of the criminal proceedings should be excluded as evidence under subsection 24(2) of the Charter and that such violation is serious enough for the Tax Court of Canada to exercise its discretion to quash the reassessment in full. No material facts were pleaded in the Notice of Appeal to lay before the Court the specific violations complained of.

However the court wasn't buying it, stating that if he had a case to plead he was supposed to actually enter evidence in support of his arguments rather than just whine about how unfair it all was:

[20] The Appellant must make more than broad statements inviting conjecture on the part of the Court. His pleadings must set out a concise statement of the material facts he relies on in sufficient detail to enable the Court and the Respondent to know each cause of action to properly address. Here, the Appellant has done no such thing.

[23] There is no evidence in the pleadings that would allow the Court to come to the conclusion the Appellant's Charter rights were violated. Unlike in O'Neill Motors above, here there is no admission of the Respondent that evidence was illegally obtained nor do we have a finding from the Ontario Superior Court of Justice as to same notwithstanding that the Appellant had multiple opportunities to plead such issue before both trial and appellate courts. In short, there is no evidence, finding or pleading that would permit this Court to find that the pleadings are sufficient to establish any cause of action. All we have is conjecture, speculation and innuendo. These are not enough to meet the threshold that the Appellant has any chance whatsoever to succeed in his claim.

Nor was the Tax Court happy about Klundert coughing up a new fundamental argument so late in the game and at the lowest possible level of court he could find (barring his next attempt, probably in traffic court):

[34] In essence, I find that the Appellant's obvious failure to have raised the issue of violation of Charter rights in the several previous processes before the Ontario Superior Court of Justice, the Ontario Court of Appeal and in leave to appeal to the Supreme Court of Canada over the period from 2002 to 2012 and then to raise the matter here to be an extreme abuse of this Court's processes and one that would, if permitted, be akin to this Court usurping the jurisdiction of those Courts and in fact placing itself in the role of appellate court to them, which would be ridiculous.

[35] The Appellant is effectively asking this Court to decide the issue as to whether evidence obtained in a civil matter audit was used in evidence, improperly, to obtain a criminal conviction when he could have and should have asked those other courts who had the jurisdiction to do so. That matter is solely within the jurisdiction of the Ontario Courts to decide. The argument of the Appellant is that if they did not do so, even if the Appellant did not raise the issue in the several proceedings before the Ontario Superior Court of Justice, the Ontario Court of Appeal or in leave to the Supreme Court of Canada, that somehow this Court has jurisdiction to entertain the argument. I do not agree. It is one thing for this Court to accept that the decision of those competent Courts on the admissibility of such evidence should apply to proceedings under this Court as the Courts did in Holub and MacIver above, it is quite another to suggest that this Court, in the exercise of its discretionary jurisdiction under subsection 24(2) of the Charter should accept the role of hearing matters outside its jurisdiction just because they were not heard in the court having jurisdiction to hear them in the first place.

[37] It is significant that the Appellant acknowledges that the issue he asks this Court to determine was not raised in any of the three trials, two appeals or one leave to appeal above referenced and he has no knowledge why. If the Appellant himself did not see fit to raise the Charter issue before the competent Court in the first place, especially when the basis for his defence in his tax evasion trials was that he had no intent to commit tax evasion but only intended to protest what he considered unlawful government action or the constitutional validity of the Federal Government's power to impose and collect taxes, then I certainly do not see how it can now be raised in the first instance here.

You can tell from these comments that it is probably not going to end up well for Klundert. The somewhat irate Tax Court judge ended up treating him no more kindly that the evil CRA:

[38] Frankly, coming to this Court after going all the way to the Supreme Court of Canada is nothing short of blatant abuse of process and a frivolous act that attempts to place this Court in a position of appellate Court to those higher appellate courts. I am not prepared to assume such a ridiculous and disrespectful role. The Appellant is doing nothing more than attempting to relitigate the same issue he had or should have had before the Ontario Courts before the Tax Court of Canada which also offends the doctrine of collateral attack as argued by the Respondent and constitutes a blatant abuse of process that is not to be condoned.

[39] Accordingly, on the basis that the Notice of Appeal pleads no facts sufficient to establish a cause of action and is a blatant abuse of process, the motion of the Respondent to dismiss the appeal is allowed and the motion of the Appellant to amend his Notice of Appeal to seek vacating or quashing of the reassessment is denied. The Respondent shall be entitled to costs on these motions.


Klundert will probably appeal this to the Federal Court of Appeal. He isn't stopping until justice is finally done.
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Re: They make 'em dumb in Canada too

Postby notorial dissent » Wed Jul 03, 2013 4:29 am

Burnaby49 wrote:He pops up again in court still pursuing justice as he sees it.

The problem with pursuing justice, is that more often than not you get it, and it wasn't what you wanted in the first place.

Klundert would be well advised to stop now before justice really gets done with him.
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Re: They make 'em dumb in Canada too

Postby Dr. Caligari » Wed Jul 03, 2013 6:22 pm

The problem with pursuing justice, is that more often than not you get it, and it wasn't what you wanted in the first place.


That reminds me of the old joke: a young lawyer returns to her office after her first trial. The senior partner asks: "how did it go?"
The young associate replies, "justice was done."
The senior partner says, "then appeal immediately!"
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Re: They make 'em dumb in Canada too

Postby Burnaby49 » Wed Jul 03, 2013 7:27 pm

Tax Court of Canada decisions can be appealed to the Federal Court of Appeals. This is an automatic right of appeal. Federal Court of Appeal decisions can be appealed to the Supreme Court of Canada. As with the US it is at the discretion of the supreme court whether it accepts an appeal.

Given Klundert's obsession about the gross perversion of justice in convicting him of tax evasion I have no doubt he will go the Federal Court of Appeal route which will brush him off with a half dozen line decision. He will then make Leave to Appeal to the supreme court which will be denied. That should be it unless he makes another collateral attack somewhere. Res judicata has no meaning for him whatever.


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"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: They make 'em dumb in Canada too

Postby Burnaby49 » Sat Jul 06, 2013 2:18 am

Klundert can be proud of himself, he has set a new standard for Canadian courts to review when determining "intent" in tax evasion cases. R v Andrus is a British Columbia tax evasion decision that just came out today. Citation is 2013 BCPC 0160 but it is not yet posted on the British Columbia Provincial Court website. I get it immediately because of a paid service I subscribe to but it should be available in Canlii under that citation in a few days.

Anyhow Andrus was one of those guys that always wanted to pay his taxes but, darn, just too busy to get around to it or to tell the Canada Revenue Agency that he was actually earning money. The CRA did a raid on his home and premises, got the info that he seemed never to be able to coherently put together, and charged him with tax evasion. At trial his defense was that he did not have the mens rea necessary to convict on wilful tax evasion since it was never his intention not to file tax returns but he just never got around to it. He had a parade of witnesses, friends, business partners, accountants, that testified that he had told them that he planned to file someday, sometime, whenever, along with evidence that he made a few desultory failed stabs at it.

The Crown cited the Kludert appeal decision where Klundert's aquittal was quashed and the case sent back for a new trial as setting a new standard regarding the interpretation of "willfulness". The Andrus judge reviewed it and commented:

[95] The decision in Paveley requiring an ulterior motive has been overtaken by R. v. Klundert, R. v. de Wolf, February 17, 1982, British Columbia Court of Appeal, and R. v. Kennedy, 2004 BCCA 638.

[96] Klundert involved an optometrist who believed that the Government of Canada did not have the legislative power to impose income tax. He was charged firstly with making a false statement in his 1993 tax return by failing to report any income and writing zero as the balance due. Secondly, he was charged with tax evasion between 1992 and 1998, contrary to s. 239(1)(d). He took the position that his refusal to pay taxes was an honest protest. He was convicted of the first charge but acquitted of the tax evasion on the basis that an honest belief that the federal government did not have the requisite legislative power was relevant to a finding of intent.

[97] Both the conviction and the acquittal were appealed.

[98] The Crown submitted that the trial judge erred in instructing the jury that "tax evasion required proof of an intention to deceive and proof of an artifice scheme or strategy; and a refusal to pay tax in protest based on an honest belief that the federal government did not have the power to impose the tax negated an intention to evade the payment of taxes and entitled Dr. Klundert to an acquittal": paragraph 18.

[99] In his reasons for the court, Mr. Justice Doherty held that the mens rea or fault component of tax evasion is in the word wilfully. He referred to the reasons of Mr. Justice Bayda in Paveley, where Mr. Justice Bayda states that wilfully connotes deliberate purpose or ulterior motive: paragraph 45.

[100] He then stated, at paragraphs 46 and 47:

46 Although I would avoid the use of the phrase "ulterior motive", I agree with Bayda J.A. that the word "wilfully" in s. 239(1)(d) signals that culpability will follow only where the accused engages in conduct intended to avoid the payment of tax owing under the Act. More precisely, I think the fault component in s. 239(1)(d) is twofold. First, the accused must know that tax is owing under the Act and second, the accused must intend to avoid or intend to attempt to avoid payment of that tax. An accused intends to avoid, or intends to attempt to avoid, payment of taxes owing under the Act where that is his purpose, or where he knows that his course of conduct is virtually certain to result in the avoiding of tax owing under the Act...

47 In most cases of tax evasion, the trial judge will adequately describe the elements of the offence by instructing the jury that they must be satisfied beyond a reasonable doubt that the accused:

* did something or engaged in a course of conduct that avoided or attempted to avoid the payment of tax imposed by the Act;

* knew there was tax imposed by the Act; and

* engaged in the conduct for the purpose of avoiding or attempting to avoid payment of tax imposed by the Act or knowing that avoiding payment of tax imposed by the Act was a virtual certain consequence of his actions.

[101] Justice Doherty went on to hold that a mistaken belief that a statute is invalid is a mistake of law that is irrelevant to the offence of tax evasion. In the result, a new trial was ordered on both counts.


In his conclusions the judge stated:

115] In my view, the test described by Mr. Justice Doherty in Klundert accurately reflects the current law. The law on intent is broader than the ulterior motive test in Paveley. As stated quite clearly in de Wolfe, ulterior motive is not the only test. I must be satisfied beyond a reasonable doubt that the defendant (1) did something or engaged in a course of conduct that avoided or attempted to avoid the payment of tax imposed by the Act, and this is the actus reus, (2) knew there was tax imposed by the Act or, I will add, was wilfully blind to that fact, and (3) engaged in the conduct for the purpose of avoiding or attempting to avoid payment of tax imposed by the Act or knowing that avoiding payment of tax imposed by the Act was a virtual certain consequence of his actions.

[121] The evidence indicated that Mr. Andrus told others he was going to file and at times during the periods in the charges consulted with his advisers. His submission has been that he always intended to file, and he told people that. But he did not file, although he had more than enough resources to do so. Talking about filing is not filing. Consulting about filing is not filing. He did not report his very substantial income for a number of years.

And, on the basis of Klundert, found Andrus guilty of tax evasion.
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Re: They make 'em dumb in Canada too

Postby Hilfskreuzer Möwe » Sat Jul 06, 2013 5:01 pm

Burnaby49 wrote:Klundert can be proud of himself, he has set a new standard for Canadian courts to review when determining "intent" in tax evasion cases. R v Andrus is a British Columbia tax evasion decision that just came out today. Citation is 2013 BCPC 0160 but it is not yet posted on the British Columbia Provincial Court website. ...

Anyhow Andrus was one of those guys that always wanted to pay his taxes but, darn, just too busy to get around to it or to tell the Canada Revenue Agency that he was actually earning money. The CRA did a raid on his home and premises, got the info that he seemed never to be able to coherently put together, and charged him with tax evasion. At trial his defense was that he did not have the mens rea necessary to convict on wilful tax evasion since it was never his intention not to file tax returns but he just never got around to it. ...


Thanks for highlighting this case Burnaby49. The Ontario Court of Appeal Klundert case is very important outside a tax context as well, because it has been expanded for the more general proposition that choosing to disagree with any law, such as firearms restrictions, provides the mens rea for the offence: R. v. Montague, 2010 ONCA 141 at paras. 39-41.

R. v. Andrus now arguably expands that principle further, and I think bridges any gap with the established rule that a 'mistake of law' is never a defence, so mens rea is proven by:

    1. I disagree with the law? Guilty

    2. I got the law wrong? Guilty

    3. I meant to investigate or get around to conforming with the law, whatever it is? Guilty.
That simplifies the criminal trial process.

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