Keith David Lawson - Poriskyite Tax Evader

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Re: Keith David Lawson - Poriskyite Tax Evader

Postby notorial dissent » Tue Nov 01, 2016 7:46 pm

That is what I had wondered. It sounded like they had gotten the whole bunch of them, but tax scams here have a way of being reborn or tre-titled and coming back from the grave. It doesn't sound like this one will, since it is the "private person" argument they were hinging on and the Canadian courts do seem to have really and publicly stomped on that one. I'm sure as you say that there are others still wending their way through the courts considering the numbers we're talking about, and I'm sure a few will drag out for as long as they can that just being the nature of tax cases.
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Re: Keith David Lawson - Poriskyite Tax Evader

Postby The Observer » Wed Nov 02, 2016 4:01 pm

The other shoe to drop though is some other two-bit scammer picking up the Porisky Doctrine, altering it a bit, and then peddling it to another generations of greedy marks.
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Re: Keith David Lawson - Poriskyite Tax Evader

Postby Burnaby49 » Thu Nov 03, 2016 2:51 am

And he's out on bail. Granted October 31st. I checked his new appeal file online. He's case number CA44027 and he filed an appeal Oct, 31, no hearing yet scheduled. He is currently unrepresented.

In addition both Russell Porisky and Elaine Gould filed appeals on August 25th. It will be interesting to see what grounds they, and Lawson, state for their appeals.
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Re: Keith David Lawson - Poriskyite Tax Evader

Postby grixit » Fri Nov 04, 2016 8:02 am

I don't think his health is that much of an issue. He's going to white collar prison. They can send a specialist once a week to deliver fresh catheters and antibiotics and collect a urine sample. They can have his cell disinfected every day while he's at lunch. If things get worse he can get a weekly escort to the hospital for dialysis. There are plenty of prisoners all over the world who'd gladly trade.
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Re: Keith David Lawson - Poriskyite Tax Evader

Postby Burnaby49 » Wed Nov 09, 2016 1:55 am

Yesterday morning I went to the British Columbia Court of Appeal registry in downtown Vancouver and got copies of Keith Lawson's and Russell Porisky's Notice of Appeal or Leave to Appeal. These give the basic information required to get an appeal of a court decision in motion and, critically, they give the appellant's grounds for appeal.

I've posted the basis of Russ Porisky's grounds for appeal here;

http://www.quatloos.com/Q-Forum/viewtopic.php?f=50&t=10485&start=40#p236184

This is Keith's last chance to save himself from jail time and he's gone off the rails in a doomed double-or-nothing suicide run. He's discarded all of his baggage from the past. He's abandoned capitalization, jurisdiction, even his beloved natural man, and is gambling everything on one last throw. He's going to convince the British Columbia Court of Appeal that the Supreme Court of Canada has told him that he could exempt himself from paying income tax by declaring his Paradigm income to be derived from a tax-free hobby.

So he hasn't evaded tax or counseled tax evasion because he never owed any income tax in the first place and the people he counseled were just hobbyists like himself. He was just diligently following the law which only he, with his genius for legal analysis, is able to comprehend. Hopefully the judges at his appeals court hearing are intelligent and learned enough to finally understand how the law really works after he explains it all to them.

He's relying on his totally deluded interpretation of the Stewart decision. I've already discussed Stewart in detail in this discussion and explained why Lawson is entirely wrong in his interpretation of it but, since it is apparently the hill that he's chosen to die on, I'll go through it one more time.

This is the Stewart decision;

Stewart v. Canada, [2002] 2 SCR 645, 2002 SCC 46
http://canlii.ca/t/51sg

This is what I said in my posting on May 3, 2016;

This was a Supreme Court of Canada case about REOP (Reasonable Expectation of Profit). Up until Stewart the CRA could reassess someone on claimed business losses if the CRA auditor thought that the business did not have a reasonable expectation of profit. A purely subjective conclusion on the part of the Auditor. In Stewart a real estate investor lost money year after year on some rental apartments he owned because they were very highly levered and interest expenses exceeded the rent. He claimed losses and was reassessed on the basis he had no expectation of profit.

This is how the Supreme Court explained the decision

The appellant, an experienced real estate investor, acquired four condominium units from which he earned rental income. The properties were part of a syndicated real estate development, and were sold on the basis that the purchaser would be provided with a turnkey operation, that management would be provided, and that a rental pooling agreement would be entered into. All units were highly leveraged with the appellant paying only $1,000 cash for each unit. The appellant was provided with projections of rental income and expenses in respect of each of the properties. The projections contemplated negative cash flow and income tax deductions for a ten year period. However, the actual rental experience ended up being worse than what had been set out in the projections. For the taxation years 1990 to 1992, the appellant claimed losses, mainly as a result of significant interest expenses on money borrowed to acquire the units. These losses were disallowed by the Minister of National Revenue on the basis that the taxpayer had no reasonable expectation of profit and therefore no source of income for the purposes of s. 9 of the Income Tax Act, and that the interest expenses were not deductible pursuant to s. 20(1)(c)(i) of the Act. Both the Tax Court of Canada and the Federal Court of Appeal upheld the decision.

Held: The appeal should be allowed.

The “reasonable expectation of profit” test should not be accepted as the test to determine whether a taxpayer’s activities constitute a source of income for the purposes of s. 9 of the Income Tax Act. In recent years, this test has become a broad based tool used by both the Minister and courts independently of provisions of the Act to second guess bona fide commercial decisions of the taxpayer and therefore runs afoul of the principle that courts should avoid judicial rule-making in tax law. The test is problematic owing to its vagueness and uncertainty of application; this results in unfair and arbitrary treatment of taxpayers.

The following two-stage approach should be employed to determine whether a taxpayer’s activities constitute a source of business or property income: (i) Is the taxpayer’s activity undertaken in pursuit of profit, or is it a personal endeavour? (ii) If it is not a personal endeavour, is the source of the income a business or property? The first stage of the test is only relevant when there is some personal or hobby element to the activity. Where the nature of an activity is clearly commercial, the taxpayer’s pursuit of profit is established. There is no need to take the inquiry any further by analysing the taxpayer’s business decisions. However, where the nature of a taxpayer’s venture contains elements which suggest that it could be considered a hobby or other personal pursuit, the venture will be considered a source of income only if it is undertaken in a sufficiently commercial manner. In order for an activity to be classified as commercial in nature, the taxpayer must have the subjective intention to profit and there must be evidence of businesslike behaviour which supports that intention. Reasonable expectation of profit is no more than a single factor, among others, to be considered at this stage.

The deductibility of expenses, which presupposes the existence of a source of income, should not be confused with the preliminary source inquiry. Once it has been determined that an activity has a sufficient degree of commerciality to be considered a source of income, the deductibility inquiry is undertaken according to whether the expense in question falls within the words of the relevant deduction provision(s) of the Act. To deny the deduction of losses on the simple ground that the losses signify that no business (or property) source exists is contrary to the words and scheme of the Act. Whether or not a business exists is a separate question from the deductibility of expenses. To disallow deductions based on a reasonable expectation of profit analysis would amount to a case law stop-loss rule which would be contrary to established principles of interpretation which are applicable to the Act. As well, unlike many statutory stop-loss rules, once deductions are disallowed under the “reasonable expectation of profit” test, the taxpayer cannot carry forward such losses to apply to future income in the event the activity becomes profitable.

In sum, whether a taxpayer has a source of income from a particular activity is determined by considering whether the taxpayer intends to carry on the activity for profit, and whether there is evidence to support that intention. In this case, the taxpayer purchased four rental properties which he rented to arm’s length parties in order to obtain rental income. A property rental activity which, as here, lacks any element of personal use or benefit to the taxpayer is clearly a commercial activity. As a result, the appellant satisfies the test for source of income and is entitled to deduct his rental losses. Section 20(1)(c)(i) of the Income Tax Act, which permits the deduction of interest on borrowed money for the purpose of earning income from a business or property, is not a tax avoidance mechanism and, in light of the specific anti-avoidance provisions in the Act, courts should not be quick to embellish provisions of the Act in response to tax avoidance concerns. In addition, since a tax motivation does not affect the validity of transactions for tax purposes, the appellant’s hope of realizing an eventual capital gain and expectation of deducting interest expenses do not detract from the commercial nature of his rental operation or its characterization as a source of income.


I'm guessing that Lawson wanted to use this as some kind of proof that, even if he made money from promoting Paradigm, he wasn't in business, it was a hobby and therefore not taxable. I'm assuming that he planned to rely on this sentence;

In order for an activity to be classified as commercial in nature, the taxpayer must have the subjective intention to profit and there must be evidence of businesslike behaviour which supports that intention.


To try and persuade the jury that he didn't have the subjective intention to profit, he was just helping his fellow truth-seekers and therefore he didn't have a business.

However Lawson has it backwards. The point of the Stewart decision wasn't that profits can be made non-taxable based on your claimed subjective intent but to allow business losses when you conducted yourself in a business-like manner. Mr. Stewart lost money on his apartment rentals which he applied against other income to reduce his taxable income from other sources. The CRA disallowed those losses on the basis he had no hope of making an operating profit from his apartments (as opposed to long-term capital gains) and the Supreme Court allowed him to have them on the basis that he ran a business-like operation, acted in a prudent business-like manner, and that it wasn't up to the CRA to decide whether or not he had a business.

However you can't flip this around when you are doing something that makes a profit, say by flogging Paradigm materials, and rely on Stewart to make the profits non-taxable by just claiming that you didn't intend to profit and you are actually just doing it as a hobby. The fact that you are acting in at least a basic business-like manner by selling a course of instructions and the accompanying materials at an amount in excess of your cost, contracting to perform duties for a client, invoicing for materials sold and services and making a profit from this is proof you have an actual business regardless of whatever you chose to call it.

I'm also guessing, from my seat in the stalls, that claiming that although he made a pile of money over the years it wasn't taxable just because he chose to call his endeavors a hobby didn't go down well with the jurors. A tactical mistake.


So let's go through Lawson's grounds for appeal. The first one is really, really stupid and we haven't even come to Stewart yet. I plan to paraphrase much of Lawson's grounds with the actual document put up on media Fire later but this deserves a full quote;

1. The Honourable Trial judge erred in entering a plea of guilty in the presence of stated position of the Appellant that he did not understand the charges and did not fail or refuse to enter a plea. The Trial Judge further erred in failing to explain the charges to the appellant at all, or alternatively, sufficient to permit the Appellant to understand them.


In other words if I claim that I'm too dense to understand the charges I can't be tried. Lawson was articulate and focused throughout his trial. He demonstrated a grasp of difficult concepts and argued the convoluted interpretations of law that formed his defense. But when faced with the task of understanding the charges against him he claims to have suddenly devolved into the village idiot. Any readers having unusual difficulty understanding the basics of these;

Count 1
Keith David LAWSON, at or near the City of Burnaby in the Province of British Columbia and elsewhere, between April 15, 2002 and August 26, 2010, did counsel various persons to commit the indictable offence of fraud in excess of five thousand dollars, contrary to section 380 of the Criminal Code and did thereby commit an offence contrary to section 464(a) of the Criminal Code.

Count 2
Keith David LAWSON, of the City of Burnaby, Province of British Columbia, between December 31, 2003 and May 1, 2009, did wilfully evade or attempt to evade payment of taxes imposed by the Income Tax Act in the amount of $46,176.20 for failing to report his taxable income in the amount of $213,213.13 for the 2004, 2005, 2006, 2008, and 2008 taxation years and did thereby commit an offence contrary to section 239(1)(d) of the said Act.


Keep in mind that Lawson had, literally, years between the charges being laid and his trial. Yet he purports to have arrived in court in a fog with no understanding of why he was being tried.

On to his second ground for appeal. This is a compound section based on errors by the judge in instructing the jury;

A - The Judge informed jury to use the ordinary meaning of income instead of it's legal definition.

This is his first venture into Stewart. Just a preliminary dipping of his toe in the waters.

B - Improperly instructing the jury to apply Section 9 of the income Tax Act against Lawson. This is Section 9;

9 (1) Subject to this Part, a taxpayer’s income for a taxation year from a business or property is the taxpayer’s profit from that business or property for the year.

(2) Subject to section 31, a taxpayer’s loss for a taxation year from a business or property is the amount of the taxpayer’s loss, if any, for the taxation year from that source computed by applying the provisions of this Act respecting computation of income from that source with such modifications as the circumstances require.

(3) In this Act, “income from a property” does not include any capital gain from the disposition of that property and “loss from a property” does not include any capital loss from the disposition of that property.


This argument relates to his interpretation of Stewart. As Lawson will flesh out later he didn't have "income" because he had money from a hobby which wasn't taxable under the Act. All approved by the Supreme court of Canada.

C - The judge did not instruct the jury that the legal definition of income was a question of law set out in Stewart.

D - More of this income bullshit and hints of how Stewart will save his ass by showing that he had no taxable income.

Ground 3 is a touch vague.

3. The jury's findings are unreasonable and unsupported by the required evidence. The jury was misled by the Court and the Crown.


Keith, some advice. That bald unsupported comment will count for nothing at your appeal hearing. You need to cite specific examples not just empty accusations. Give chapter and verse at your appeal hearing. I'll probably be there to record it for Quatloos.

His fourth ground is a favorite of mine. Since he was unrepresented it was the judge's job, and one she failed at dismally, to step in and act as his lawyer!

4. The Honourable Trial Judge failed to assist the Appellant to bring forth any or all of his defenses with full force.


This one is a perennial. When this appeal goes down in total defeat Keith can include, as part of his Leave to Appeal application to the Supreme Court of Canada, an argument how the appeals court judges also failed him by not acting as his lawyers either.

Then, in Count 5, we at last arrive at full-frontal Stewart. Number 5 while purportedly covering different issues in respect to the law was really one long complaint that he'd declared his income as coming from a non-taxable hobby but everybody ignored this. The opening says it all;

5. The Honourable Trial judge failed to properly apply the principles of law set out in Stewart v Canada, 2002 by;


Then a laundry list of the things the judge was too dense to understand. This was a personal endeavor, failing to consider his subjective intent, failing to tell the jury that the Crown had to prove that he knew he actually had a business when he actually made all of his money from his hobby.

And then this statement, breathtaking in both it's bone-headed wrongness and its arrogance in proclaiming and demanding new and absolute rights for himself. Rights which other Canadians don't realize they have because, apart from Lawson, we are all just too stupid to understand what the Supreme Court of Canada was telling us in Stewart.

c. failing to consider and apply the principles and findings by the Supreme Court of Canada that the determination of whether the activities of the Appellant are to constitute a personal endeavor and thus non-taxable or a business or other source of income which is taxable, is to be legally made by the Appellant, not the CRA, nor the Crown, nor the Court. Neither the CRA, nor the Crown, nor the Court has the power to override the Appellant's decision and intentions on this matter;


So we're down to magical incantations. If I declare my pensions to be derived from a hobby they are no longer taxable! Do I need an eye of newt and some henbane? I think I'll just hold back until after Keith's appeal hearing before I try it.

Keith, one nitpicking point about your opening statement in ground 5. If you are going for broke with Stewart you should really give the correct citation for it.

Stewart v. Canada, [2002] 2 S.C.R. 645, 2002 SCC 46

These little things matter when your case is being reviewed by the British Columbia Court of Appeal. It demonstrates at least a basic level of competence.

Number 6 is that the judge screwed up by saying he made income and profit. We're still on Stewart. Same with 7 where he claims that the judge erred in her interpretation of s. 464 of the Criminal Code, his counseling charge;

Counselling offence that is not committed

464 Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,

· (a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and
·
· (b) every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.


Because s. 464 only applies to commercial activities and he was involved in a hobby.

Number 8 is a querulous complaint about how the judge mistreated him and favoured the Crown. Continuous interruptions! Denial of evidence he wanted entered! Restricting his testimony "based on rules he didn't understand and which the judge did not fully explain and/or improperly applied". Keith, a point you should work on before your hearing. If you didn't understand the rules that the judge used against you how can you claim she applied them improperly? It's one or the other. The appeals court is going to want to know.

As a result of all of the endless, relentless interruptions he was prevented from fully presenting evidence and submissions in his defense. He lost focus and was extremely frustrated!

Part d was how the judge allowed the Crown to give incorrect, impermissible, and/or improper instructions to the jury. I must have missed something because I was there for jury instructions and I didn't see the Crown give any instructions to the jury, improper, impermissable or otherwise. Only the judge gave instructions. Since Keith also included the judge as a party misrepresenting things to the jury he can just switch his complaints about the Crown in this part to the real culprit, Justice Watchuk.

Then a part that deserves to be quoted in full. Everything should be thrown out because the Crown believed that he was guilty and wanted to obtain a conviction!

e. The Crown was prosecuting for improper purposes such as obtaining a conviction, indicative by such comments as inter alia referring to the Appellant as "Mr. Guilty", which comment did or could reasonably could be seen to have biased the jury. Such comments could reasonably have influenced the jury;


Actually that Mr. Guilty quote is true. Crown counsel was saying something to the effect that Mr. Lawson was guilty of whatever but instead said that Mr. Guilty was guilty. No wonder Lawson feels persecuted. How can the court of appeal not toss out Keith's convictions after finding out that Crown Counsel, the person prosecuting Lawson, told the jury that she thought Lawson was guilty?

The rest of number 8 is a confused complaint about failures by Crown and the Court to separate assumed facts from issues of law.

Point 9 speaks for itself;

9. The Honourable Trial Judge failed to consider and apply the initial test for commerciality as set out in Stewart, to the Appellant's activities.


Number 10 was his complaint that the Crown didn't call some unidentified witness. This resulted in an obstruction of justice, abuse, and prevented him from giving a full defense.

Number 11 yammers on and on about prosecutorial abuse of process. Essentially the Crown and the CRA knew that there was insufficient evidence to convict Keith but went ahead and tried him anyhow. Keith, a suggestion, better give this point a bit more thought. You were convicted. That's pretty compelling proof that there was in fact enough evidence to convict. At least it will prove it to the court of appeal.

Also the Crown provided evidence at trial that the Crown knew proved he was innocent but chose to continue the trial anyhow. Keith, back to the point of my prior note. If the Crown gave evidence proving your innocence why were you convicted? It's irrelevant what the Crown thought about the evidence they entered. The Crown didn't convict you, the jury did. They heard the evidence that you feel proved your case but they obviously though it less compelling than you do.

What is really at issue here is the weight to be given to the evidence. Lawson feels that anything that he thinks proves his innocence should have been accepted by the jury while whatever rubbish and lies that the Crown used to convict him should be discarded. But Keith's problem is that the jury was the trier of fact and it was their duty to weigh the evidence. They apparently disagreed with Keith's opinion on this, as they were free to do, and an appeals court is not going to overturn the jury's judgment on the weight to be given to the evidence.

The next point requires a bit of background. During the trial Keith was constantly trying to enter evidence proving that the CRA staff who investigated him were not, at least in his opinion, properly trained. This was based both on his direct experience in dealings with them and from what he said was the training level required by the CRA's own policy manuals. Who cares, you ask? Same question the court had when it disallowed this line of questioning as being irrelevant.

His point in all this, as I understand it, was that he'd explained to the CRA during the investigation, amongst other things (natural man, capitalization, jurisprudence) that he had not made any taxable income because Stewart allowed him to exempt himself from being a taxpayer. Yet they continued their investigation and eventually charged him. He seemed to be arguing in court, and in this application, that the CRA staff working on his file were not qualified to investigate him because they were too ignorant of the law to understand the meaning of Stewart. Had they done so, and he'd tried to explain it to them, they would have realized that he was right and dropped the investigation. The only people who were qualified to investigate him were those staff members (if any) smart enough and well versed enough in law to understand and accept his interpretation of Stewart. Had those people been involved instead of the dullards he unfortunately got they would have agreed with his analysis and dropped the investigation. Still with me? Hope so because, frankly, this argument is way over my head and I've obviously explained it very badly. The way I've written up his argument makes it sound abysmally stupid. That's probably just my inability to understand complex legal analysis.

Anyhow almost done. A point about how he wasn't given the opportunity to test the Crown's case and a final point about statutory interpretation. Apparently if he interprets a statute differently than the Crown this is proof that the Crown has no basis to lay a criminal charge. To quote;

14. Where a statute is reasonably capable of two interpretations, the most favourable to the liberty of the Appellant was to be utilized. In a complex statute such as the Income Tax Act, where the legal onus is on the Appellant to voluntarily comply with the terms and provisions therein, errors of interpretation and/or application of the Act by the Appellant cannot form a basis for criminal or penal liability. These are not strict nor absolute liability offenses. The Honourable Trial Judge failed to so exercise her discretion accordingly.


Of course the critical two words in all of that verbiage are "reasonably capable".

It should be noted that this paragraph goes right to the heart of what the Crown has said all along was the entire reason that Paradigm existed. It was a cover to give justification for a defense against tax evasion charges, essentially insurance if Paradigm customers were caught not reporting their income. They had the entire Paradigm edifice to serve as their defense, masses of publications and videos with impossibly complex theories proving that they didn't have to pay income tax. If the CRA started making hurtful suggestions that they were criminals about to be charged with criminal offenses the Paradigm material was to serve as proof that they had no mens rea, no guilty mind.

They thought that, if caught, they could proclaim that they'd done their absolute best to comply with the law. But it's all so darn complicated that they just couldn't figure it out. So they quite reasonably relied on the analysis of Russell Porisky, a carpenter with no background or training in law or income tax, to instruct them how to fulfill their legal obligations under the Income Tax Act. They didn't try to evade tax. At worst they made, as Lawson put it "errors of interpretation and/or application of the Act". We know how that played out in real life. Apparently the courts have not, as yet, considered the Paradigm bullshit to be a "reasonably capable" interpretation.

But let's end on an optimistic note. Keith still has faith in the jury system! When filling out their appeals applications both Keith and Russell Porisky had to answer the question "If a new trial is ordered and you have a right to a trial by jury do you wish a trial by jury?" Porisky, soured on the whole jury experience, answered no. Keith has chosen yes!

I was playing Mozart's Symphonies by Trevor Pinnock and the English Concert while writing this. Why do I have this feeling that Wagner's Ride of the Valkyries would have been the more appropriate choice? Or Garryowen, the marching tune of Custer's seventh cavalry and the last tune played for them as they rode out from Terry's camp on their way to their appointment with Gall and Crazy Horse at the Little Bighorn. This application is doomed, dead on arrival.

And yet, and yet . . .

I looked out my kitchen window this morning and saw sunlight and blue sky. In Vancouver. In November. It's continued through the day. In a world where November 8th in Vancouver can be anything but endless rain the old rules that maintained the order of things no longer apply and even the impossible can become possible. Even (dare I say it?) Keith's appeal.
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Re: Keith David Lawson - Poriskyite Tax Evader

Postby Burnaby49 » Fri Nov 18, 2016 8:47 am

I'm feeling a bit guilty about the way I've treated Keith. Really. Well a bit. I gave Russell Porisky the germ of an idea about one of his grounds to appeal his convictions on tax evasion and counseling tax evasion but I haven't given Keith any advice at all. So this post will rectify that omission.

Keith is appealing his convictions on tax evasion and counseling income tax evasion on the basis of his interpretation of the Supreme court of Canada's decision in the Stewart case;

http://canlii.ca/t/51sg

Stewart was released over fourteen years ago. It was a very important case for income tax practitioners. It changed how the CRA viewed the tax deductibility of claimed expenses in money-losing businesses. It has been closely scrutinized by income tax professionals both inside and outside of the CRA. I can speak first hand on this because I was a CRA auditor when Stewart was released and I remember the ruckus it caused. Whenever I went out to meet tax lawyers and accountants they'd crow about how we'd finally had our asses handed to us by the Supreme Court. Stewart has been cited in 250 cases to date.

But nobody, apart from Keith, has ever correctly understood what the Supreme Court was really saying in this decision. I won't go into details yet again on it. Sufficient to say that all we people who made our living in income tax by interpreting and applying court precedence took too shallow a look at Stewart. We just skimmed the surface and saw only the superficial meaning. This was that taxpayers could deduct expenses from a money losing business if it was run in a professional manner and there was no personal component to it. A classic and much litigated example of taxpayers claiming personal expenses is Amway members with no sales who deduct personal and household expenses against other income. In the past when a real attempt to start a business resulted in a loss the CRA would often disallow expenses on the basis of the REOP (reasonable expectation of profit) test, an arbitrary test made by the CRA auditor handling the file, a guy who'd never started a business. Stewart ended REOP.

This is all that the best minds in Canadian tax litigation could see in Stewart but Keith dug much deeper and saw the real meaning that eluded the rest of us. The Supreme court was actually telling us that we Canadians have the individual choice whether we wished to be taxed or not. This is based on a source of income test. If we want to be taxed, no problem, we just say that the source of our income is from a commercial activity, in other words business income. That makes us taxable. But if we choose not to pay tax Stewart allows this too. All we have to do is say that the source of our income is from a personal endeavour, in other words a hobby. This simple declaration exempts us from income tax regardless of the amount of the income or the actual basis on which we made it. If we make this declaration, and Keith says that he did, then the CRA, the Crown, and the courts are required to accept it as legally binding because Stewart orders them to allow complete taxpayer discretion on how the source of income test is applied. Why didn't we practitioners see this?

Keith explained this over and over, to the CRA auditors, to the Crown, to the Supreme Court of British Columbia, but nobody had the depth of understanding of tax necessary to see that he was right and so he was convicted notwithstanding Stewart. And he's going to lose at the British Columbia Court of Appeal (those guys are no better than the rest of us at understanding what Stewart was really trying to tell us).

So Keith, here is my suggestion. The Supreme Court must be very frustrated by the grossly incorrect interpretation the entire tax community has placed on Stewart. They must be burning to have this corrected after fourteen years of seeing Canadian courts applying their reasons totally incorrectly (250 citations!). But they can't do anything unless they have a case in front of them which is based on the CRA using the incorrect interpretation. So when you lose at the British Columbia Court of Appeal you should make Leave to Appeal at the Supreme Court of Canada. If you are correct they will be eager to grant Leave to Appeal and finally set the record straight on what they clearly meant all along.

And now a bit of housekeeping on my part. In my review of Keith's Notice of Appeal application I said;

Number 11 yammers on and on about prosecutorial abuse of process. Essentially the Crown and the CRA knew that there was insufficient evidence to convict Keith but went ahead and tried him anyhow. Keith, a suggestion, better give this point a bit more thought. You were convicted. That's pretty compelling proof that there was in fact enough evidence to convict. At least it will prove it to the court of appeal.

Also the Crown provided evidence at trial that the Crown knew proved he was innocent but chose to continue the trial anyhow. Keith, back to the point of my prior note. If the Crown gave evidence proving your innocence why were you convicted? It's irrelevant what the Crown thought about the evidence they entered. The Crown didn't convict you, the jury did. They heard the evidence that you feel proved your case but they obviously though it less compelling than you do.


But, on re-reading Keith's Notice of Appeal, I found that the second part is wrong. Keith actually said that the Crown had evidence that proved him innocent but did not submit it at trial. His statement in his Notice of Appeal was;

"10 - The Crown's decision not to all its sole CRA witness, is contrary to R v Boucher 1955 SCR in that it was against the Crown's duty to ensure that all relevant facts are on the record to obtain the truth of allegations and defenses, and further amounts to an obstruction of justice, abuse, prevention of relevant evidence that would or could have assisted the Appellant in providing full answer and defense."

"The CRA witness proved exculpatory evidence at the pre-trial which the Crown knew, or ought to have known, would have mitigated against a finding of guilt, and was highly beneficial to the Appellant's case. . . . "


So what was this bombshell evidence that the Crown suppressed? It was that the Crown witness, at a prior hearing, had;

"testified that she was unaware of the Supreme Court's decision in Stewart and the "source of income test" outlined therein and did not consider it in her investigation of the Appellant. The witness admitted that she'd laid the charges on the basis that because the Appellant received money, which she equated to profit and which thus immediately resulted in taxability. This is incorrect and the Crown should have, and had a legal duty to have known this, given the existence of the source of income test set out in Stewart."


In other words exactly what I've written above as being Keith's interpretation of Stewart and what I wrote in the quote below in my posting on this point in my review of his grounds for appeal,

The next point requires a bit of background. During the trial Keith was constantly trying to enter evidence proving that the CRA staff who investigated him were not, at least in his opinion, properly trained. This was based both on his direct experience in dealings with them and from what he said was the training level required by the CRA's own policy manuals. Who cares, you ask? Same question the court had when it disallowed this line of questioning as being irrelevant.

His point in all this, as I understand it, was that he'd explained to the CRA during the investigation, amongst other things (natural man, capitalization, jurisprudence) that he had not made any taxable income because Stewart allowed him to exempt himself from being a taxpayer. Yet they continued their investigation and eventually charged him. He seemed to be arguing in court, and in this application, that the CRA staff working on his file were not qualified to investigate him because they were too ignorant of the law to understand the meaning of Stewart. Had they done so, and he'd tried to explain it to them, they would have realized that he was right and dropped the investigation. The only people who were qualified to investigate him were those staff members (if any) smart enough and well versed enough in law to understand and accept his interpretation of Stewart. Had those people been involved instead of the dullards he unfortunately got they would have agreed with his analysis and dropped the investigation. Still with me? Hope so because, frankly, this argument is way over my head and I've obviously explained it very badly. The way I've written up his argument makes it sound abysmally stupid. That's probably just my inability to understand complex legal analysis.


As I've said. This is the hill that he's chosen to die on.
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Re: Keith David Lawson - Poriskyite Tax Evader

Postby The Observer » Fri Nov 18, 2016 6:52 pm

Burnaby49 wrote:So Keith, here is my suggestion. The Supreme Court must be very frustrated by the grossly incorrect interpretation the entire tax community has placed on Stewart. They must be burning to have this corrected after fourteen years of seeing Canadian courts applying their reasons totally incorrectly (250 citations!). But they can't do anything unless they have a case in front of them which is based on the CRA using the incorrect interpretation. So when you lose at the British Columbia Court of Appeal you should make Leave to Appeal at the Supreme Court of Canada. If you are correct they will be eager to grant Leave to Appeal and finally set the record straight on what they clearly meant all along.


Burnaby, why do you hate the Supreme Court of Canada?
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Re: Keith David Lawson - Poriskyite Tax Evader

Postby Burnaby49 » Fri Nov 18, 2016 9:06 pm

The Observer wrote:
Burnaby49 wrote:So Keith, here is my suggestion. The Supreme Court must be very frustrated by the grossly incorrect interpretation the entire tax community has placed on Stewart. They must be burning to have this corrected after fourteen years of seeing Canadian courts applying their reasons totally incorrectly (250 citations!). But they can't do anything unless they have a case in front of them which is based on the CRA using the incorrect interpretation. So when you lose at the British Columbia Court of Appeal you should make Leave to Appeal at the Supreme Court of Canada. If you are correct they will be eager to grant Leave to Appeal and finally set the record straight on what they clearly meant all along.


Burnaby, why do you hate the Supreme Court of Canada?


I first attended a Lawson court session on February 23, 2015. Since then I've spent uncounted days at the British Columbia Supreme Court listening to him and Millar yammering away about their idiotic beliefs. I still have Millar's sentencing hearings and both of their appeal hearings to get through (alcohol might help). Even the Crown counsel that had these two inflicted on them are now almost out of the picture since one quit and the other won't handle the appeals because Justice Canada has the policy of assigning new lawyers to appeals. I think that the Supreme Court should share the pain.
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Re: Keith David Lawson - Poriskyite Tax Evader

Postby notorial dissent » Fri Nov 18, 2016 10:58 pm

From what I've seen so far, I should think LOTS of alcohol would be the only help. I would think one round as a lawyer with this bunch would be more than enough to start contemplating a career change.
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Re: Keith David Lawson - Poriskyite Tax Evader

Postby Burnaby49 » Wed Jan 11, 2017 2:17 am

Lawson's sentencing decision has been released and I didn't notice. So, belatedly, here it is;

R. v. Lawson
2016 BCSC 2446

http://canlii.ca/t/gwp31
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Re: Keith David Lawson - Poriskyite Tax Evader

Postby Jeffrey » Wed Jan 11, 2017 11:05 pm

Oh I wanted to run something by ya Burnaby. This case has been thrown around recently in the SovCit crowds I monitor as some sort of "proof" that the CRA can be beaten.

http://business.financialpost.com/legal ... -taxpayers

Suspicious to me because it's a year old and it's only now trickled down to the tax protesters.

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Re: Keith David Lawson - Poriskyite Tax Evader

Postby Burnaby49 » Thu Jan 12, 2017 2:22 am

Jeffrey wrote:Oh I wanted to run something by ya Burnaby. This case has been thrown around recently in the SovCit crowds I monitor as some sort of "proof" that the CRA can be beaten.

http://business.financialpost.com/legal ... -taxpayers

Suspicious to me because it's a year old and it's only now trickled down to the tax protesters.


I suppose it depends on what you mean by "beaten". There are two cases mentioned in the article. You can read Leroux here;

Leroux v. Canada Revenue Agency
2014 BCSC 720 (CanLII)
http://canlii.ca/t/g6px8

And, as the write-up said;

Leroux won the war but lost the battle. Tax professionals are calling the B.C. court’s ruling a milestone for taxpayers who seek to hold the CRA accountable for its actions. But the court also found that the CRA’s actions were not the cause of Leroux’s losses. Not only did Leroux fail to receive compensation, the court ordered him to pay the CRA’s legal fees. The case settled earlier this month with Leroux paying the nominal sum of $10 to the CRA for legal costs.


No question that he was fairly harshly treated by the CRA but he still lost. The decision set a general level of care that the CRA owed but the standard is so high that no case, at least that I'm aware of, has triggered it to the point of requiring the CRA to pay damages.

The second case noted in the article, Scheuer, was much more significant because it involved a claimed duty of care to taxpayers before they filed their tax returns, indeed before they made the transactions that the CRA disallowed. The claim in this case was that the CRA had a general duty of care to warn taxpayers away from getting involved in shady tax avoidance schemes. This is Scheuer;

Canada v. Scheuer
2016 FCA 7 (CanLII)
http://canlii.ca/t/gmzdf

To start with there was a lot of money involved. Here is the list of taxpayers in this one appeal.

Lothar Scheuer, Elizabeth Andrusiak, Michael Andrusiak, Donald Belfour, Denise Banga, Ron Billington, Caroline Bird, Wayne Boychuk, Susan Buckle, Wayne Buckle, Michael Cherwenuk, Michael Chillog, Laura Crotenko, Ronald Davidson, Dwayne Deck, Linda Deis, Barabra Dickson, William Dickson, Deborah Dowswell, Robert Dowswell, Patrick Duval, Gary Falkenstein, Colin Fong, Patrick Genoway, Barry Gervais, Cheryl Giambattista, Jordan Giambattista, Nick Giambattista, Ken Hanley, Dale Hanley, Donna Harvey, Cheryl Helmeczi, Dennis Helmeczi, Laurie Helmeczi, Linda Helmeczi, Rand, Duane Hillsendager, Garth Hilts, Carol Hipfner, Jacqueline Hoffert, Russell Holm, Frederrick Howard, Fred Huber, Garth Huber, Lori Ireland, Gordan Joyce, Gordon And Maxine Joyce, Tess Kossick, Kenneth Krawczyk, Frances Kullman, Gordan Kullman, Derrick Lamb, Bradley Lamontagne, Brad Lance, Wayne Larsen, Leslie Padwick, Nick Loffler, Ron Lyke, Shane Lyke, Sheryl Lyke, John Macdonald, Barry Malesh, Martin Marchuk, Alice Mckim, Mark Melnyk, Glen Miskolcz, Herbert Padwick, Sukhdev Parmar, Rochelle Patenaude, Kelly Perkins, Joann Piett, Justin Piett, Lorne Piett, Margaret Pioro, Bernice Predenchuk, Bill Predenchuk, Jason Pugh, Michael Pugh, Dennis Read, Gwendolyn Read, Carla Reinheimer, Jamie Reinheimer, Lance Reinheimer. Alexander Robertson, Cliff Runge, Delores Runge, Kurt Schemmer, Jamie Schneider, Larry Schneider, Michael Schneider, Ronald Schneider, Warren Schultz, Heidi Severson, David Shiplett, Lisa Shotton, Michael Snider, Janet Stanzel, Kent Stanzel, Greg Stewart, Magdaline Stieben, Daniel Szmutko, Katherine Szmutko, Rob Temsland, Anna Trower, David Trower, Margaret Trower, Merlin Trower, Norma Trower, Lyle Ulrich, Marlise Vittur, David Webster, Sheila Webster, Eleanor Welsh, Gerald Welsh, Leonard Weibe, Loretta Weibe, Walter Wilhelms, Gregory Woitas, Christine Younghusband, Jake Zapshalla and Karen Zatylny


What was the issue? A tax avoidance scheme where you purportedly could make a donation to a charity and get a tax refund much greater than the amount you actually paid out of pocket to make the donation.

[2] Lothar Scheuer and the other plaintiffs (the respondents on this appeal) are taxpayers in Canada who participated in a tax shelter donation program marketed and promoted by the Global Learning Group Inc. (GLGI). For the 2004, 2005 and 2006 taxation years, Mr. Scheuer paid, respectively, $10,000, $60,000 and $10,000 to GLGI (paragraph 20 amended statement of claim). In consequence, in those years GLGI provided Mr. Scheuer with charitable donation tax receipts issued by one or more registered Canadian charities in the amounts of $30,047.24, $420,114.91 and $60,053.44 (paragraph 20 amended statement of claim). Mr. Scheuer filed personal income tax returns for each taxation year. In those returns he claimed charitable donation tax credits based on the receipts that he received from GLGI, which credits were applied to reduce the income tax otherwise payable by Mr. Scheuer in each taxation year.


So in the lead plaintiff's case he paid $80,000 to get what was claimed to be about $510,000 in valid tax deductible donation receipts. At an assumed combined federal and provincial tax rate of 30% he would have gotten a refund (had it worked) of over $150,000 for his $80,000 investment. Canadian taxpayers swarmed into these schemes to the tune of billions of dollars of claimed deductions.

I'll give a quick review of how they were supposed to work by considering Global Learning, just one of many of these schemes. They were all, essentially the same. Taxpayers purchased some crap from a promoter, artwork, Chinese manufactured toothpaste, worthless software programs, comic books, whatever, and donated it to a compliant charity at a claimed fair market value much higher than their actual purchase price. As you can see from the above quote Scheuer paid Global Learning $80,000 for a bunch of software licenses which he donated to a compliant charity at a claimed value of $510,000.

They all lost in court because the Tax Court took the common-sense position that if you paid some arm's length individual $80,000 for something then that, at most, was what it was worth and a piece of paper saying it was actually worth $510,00 was irrelevant. Initially the court was somewhat generous with taxpayers and allowed them tax deductions on their actual cash cost but in the end the court got hard-nosed and allowed them nothing at all. I assume that's what eventually happened to Scheuer because that is how the court went on Global Learning when it was heard in Tax Court in 2015;

Mariano v. The Queen
2015 TCC 244
http://canlii.ca/t/glrs3

These were all large organized schemes where the whole sequence of events and property to donate were lined up in advanced so all that taxpayers had to do was write a cheque then claim the donations on their tax returns. They were all reassessed disallowing the donations. All appeals by the taxpayers were dismissed. Some taxpayers, like the ones in the Scheuer case, wanted to find somebody else to cover their loses and chose the CRA for not telling them to keep away from these schemes.

So this leads us back to the Scheuer Federal Court of Appeal case. It is a requirement, under the Income Tax Act, that these large organized schemes get a Tax Shelter Identification Number and that taxpayers, when claiming deductions under the scheme, include the number in their income tax return. A failure to get the number resulted in all deductions under the scheme being disallowed whether valid or not. So Global Learning got a number.

The number is strictly for the administrative convenience of the CRA to identify donations under specific schemes, it serves no other purpose.

[37] For the purpose of the alleged duty of care owed when issuing a tax shelter identification number, the relevant provision is section 237.1 of the Income Tax Act. In brief, the provision prohibits any person from selling, issuing or accepting consideration in respect of a tax shelter unless the Minister of National Revenue has issued an identification number for the tax shelter (subsection 237.1(4)). In addition, it prohibits a taxpayer from claiming a deduction or credit in respect of a tax shelter unless the taxpayer files with the Minister a prescribed form containing prescribed information, including the identification number for the tax shelter (subsection 237.1(6)).

[38] A promoter shall apply to the Minister in prescribed form for a tax shelter identification number (subsection 237.1(2)). Issuance of a tax shelter number is not discretionary. On receipt of an application under subsection 237.1(2) “together with prescribed information and an undertaking satisfactory to the Minister that books and records in respect of the tax shelter will be kept and retained at a place in Canada that is satisfactory to the Minister, the Minister shall issue an identification number for the tax shelter” [underlining added] (subsection 237.1(3), as in force at the relevant time).

[39] Pursuant to paragraph 237.1(5)(c) of the Income Tax Act, every promoter of a tax shelter must prominently display “on every written statement made after 1995 […] that refers either directly or indirectly and either expressly or impliedly to the issuance by the Canada Revenue Agency of an identification number for the tax shelter” and on the copies of the information returns sent to each investor pursuant to subsection 237.1(7.3), the following warning when the return is written wholly or partly in English:

The identification number issued for this tax shelter shall be included in any income tax return filed by the investor. Issuance of the identification number is for administrative purposes only and does not in any way confirm the entitlement of an investor to claim any tax benefits associated with the tax shelter. [emphasis added]

[40] Returning to the application of the Cooper-Anns test, at the second part of the first stage of the test, a court is to ask whether, notwithstanding the proximity between the parties, there are reasons such that tort liability should not be recognized. Had the Judge considered the legislative regime at this stage of the analysis, he would have concluded that no tort liability can, or should, be imposed upon the Minister for simply issuing a tax shelter identification number because, in so acting, the Minister exercises no discretion. Once satisfied that the prescribed information has been provided, that the undertaking to keep the books and records is satisfactory and that the books and records will be kept and retained at a satisfactory place, the Minister must issue the identification number. No duty of care can arise from the issuance of an identification number in this circumstance.

But taxpayers have claimed that issuing a number to a scheme is effectively the equivalent of the Good Housekeeping Seal of Approval and that the CRA was negligent in assigning a number to any scheme that was going to fail in Tax Court.

1 - The Canada Revenue Agency failed to properly manage the operational framework established under the Income Tax Act to protect taxpayers from promoters such as GLGI (paragraph 146);

2 - The Canada Revenue Agency failed to properly assess the scheme submitted by GLGI in order to obtain a tax shelter number (paragraph 147);

3 - The plaintiffs’ tax returns “included the specific information of the donations made based on the tax shelter numbers” issued by the Canada Revenue Agency (paragraph 150);

4 - GLGI also made annual filings to the Canada Revenue Agency reporting all information required under the Income Tax Act concerning individuals who invested in the tax shelter (paragraphs 6 and 151);

5 - The Canada Revenue Agency “was aware of potential issues surrounding the charitable donations made to GLGI as early as the year 2000” (paragraph 149);

6 - The Canada Revenue Agency took no steps to warn or inform Canadian taxpayers, and in particular the plaintiffs, of its concerns about GLGI (paragraph 149);

7 - Rather, the tax return of each taxpayer who invested in the tax shelter was assessed separate and apart from the returns of other Canadian taxpayers (paragraph 152);

8 - The Canada Revenue Agency has continued to allow GLGI to market its program to Canadian taxpayers, knowing that the Agency would not honour any of the tax credits issued (paragraph 155);

9 - Mr. Scheuer was advised that GLGI was registered as a tax shelter under the Income Tax Act, and that it had a tax shelter number (paragraph 13);

10 - Mr. Scheuer relied upon the fact that the Canada Revenue Agency had issued a tax shelter number to GLGI and this was the only reason he contributed to it (paragraph 16);

11 - Mr. Scheuer has suffered substantial health problems associated with the stress of his tax situation (paragraphs 23 and 24); and

12 - The plaintiffs seek damages from the defendants arising from the failure of the Canada Revenue Agency to properly protect them (paragraphs 148 to 159).


In other words the CRA had a duty of care to warn taxpayers not to make charitable donations based on shady tax avoidance schemes. The court did not agree and found that;

[29] I will deal first with the allegations of breach of a duty of care when issuing a tax shelter number and breach of a duty of care to warn Canadian taxpayers, including the plaintiffs, of concerns about the tax shelter.

[30] In my view, there is no category of recognized cases that supports the plaintiffs’ assertion that the Canada Revenue Agency and Canada owed a duty of care to all Canadians when issuing tax shelter numbers or a duty to warn all Canadians that participation in a given tax shelter may lead to the denial of the income tax deductions (the charitable tax credits in this case) allegedly available as a result of such participation. The performance of statutory duties generally does not, in and of themselves, give rise to private law duties of care (Reference Re Broome v. Prince Edward Island, 2010 SCC 11 (CanLII), [2010] 1 S.C.R. 360, at paragraph 13). Something more must be alleged to bring the claim within one of the above enumerated classes or an analogous one: for example, misfeasance in public office or acting in a manner inconsistent with the proper and valid exercise of the powers conferred upon the Canada Revenue Agency under the Income Tax Act.

[44] In my view, this policy consideration applies to a duty of care to warn against investment in an improvident or suspect tax shelter. The written warning tax shelter promoters are mandated by paragraph 237.1(3)(c) of the Income Tax Act to display in connection with use of a tax shelter identification number is consistent with Parliament’s intent that taxpayers should participate in a tax shelter at their own peril, not at the peril of Canadian taxpayers generally. Moreover, at paragraph 8 of the amended statement of claim, the plaintiffs acknowledge that they received independent legal opinions, opinions from accountants and valuation appraisals in respect of the tax shelter. The issuers of such opinions, who benefited financially from the provision of their professional advice, are better placed to indemnify the plaintiffs in the event of negligence in the exercise of their professional responsibilities.

[45] It follows from this analysis that I would strike out the amended statement of claim for failing to assert a cognizable cause of action.

Now I fail to see how this can give any comfort to whatever groups Jeffery monitors who are apparently getting excited by these cases. Perhaps they are really clutching at straws and grabbing hold of paragraph 46 of Scheuer.

[46] The above conclusions concerning a duty to warn reflect that the performance of statutory duties does not generally give rise to private law duties of care. However, liability may attach if public officials act in a manner inconsistent with the proper and valid exercise of their statutory duties, in bad faith or in some other improper fashion. As discussed above, the amended statement of claim suggests in a non-particularized and over-generalized fashion bad faith or delay. As liability may attach for such misconduct, the plaintiffs ought to be given leave to further amend their pleading in a manner consistent with these reasons.


In other words, business as usual as per Leroux. As you've probably noted Keith Lawson claimed that the CRA had some kind of vaguely defined duty of care to him which precluded the Crown from charging him and they violated this duty by not agreeing with him that he wasn't a tax evader.
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https://www.youtube.com/watch?v=XeI-J2PhdGs

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Re: Keith David Lawson - Poriskyite Tax Evader

Postby Burnaby49 » Tue Mar 07, 2017 6:23 am

My posting of November 8, 2016 was my analysis of Keith Lawson's Notice of Appeal. However I did not include the actual document. I finally got around to putting it on Media Fire so here it is;

http://www.mediafire.com/file/iibxq69fvpu9mf4/Lawson_BCCA_appeal_application.pdf
"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: Keith David Lawson - Poriskyite Tax Evader

Postby Burnaby49 » Tue Aug 01, 2017 6:52 am

Keith is still batting 1000, continuing his unbroken history of failures in court. He recently went to the Court of Appeal for British Columbia Court to get them to order the appointment of government funded counsel for his appeal from his convictions on counseling fraud, income tax evasion, and GST evasion. He requested this because he claimed he did not have the financial resources to pay a lawyer to handle his appeal. And, just because he fudged a little about his actual financial situation, the court turned him down with this comment;

[33] The burden was on Mr. Lawson to establish he does not have the means to fund his appeal. He failed to meet that burden because I have no faith in the affidavit evidence he presented denying the existence of any assets he could use to fund an appeal. Accordingly, I dismissed his application.


R. v. Lawson, 2017
BCCA 288
http://canlii.ca/t/h544g

What Lawson specifically wanted was a s.684 order from the Court. This is a provision in the Canadian Criminal Code;

Legal assistance for appellant

· 684 (1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance


But Keith needed a lawyer to argue his case that he was entitled to get a s.684 order. So this court hearing was to consider Keith's request for a limited s.684 order so he could get enough funds to retain a lawyer just to argue on his behalf that he was entitled to the full 684(1) funding. And he had a lawyer ready to go if somebody would pay him;

[9] Mr. Lawson’s application came on before me in chambers on June 28, 2017. He advised me he had spoken with a lawyer who is prepared to act for him in the event a limited s. 684 appointment is made.


In order to convince the court that he was entitled to a government funded lawyer Keith had to bare his financial soul to the court, to show that he truly had no means to pay for one himself. So he did, at least to a limited extent. But the Crown found out he had a somewhat selective memory;

[8] On June 21, 2017, Mr. Lawson filed an application for a limited or interim s. 684 order, i.e., for the appointment of counsel to advance a full s. 684 application on his behalf. In support of that application Mr. Lawson filed his own affidavit. He deposed that he, his spouse May Dang-Lawson, and their two children live in a rented apartment in Burnaby, British Columbia. Mr. Lawson says he is unemployed and in poor health. He states Ms. Dang-Lawson’s employment is their family’s only source of funds and that he acts as a full-time home maker and child-care provider. He further states that collectively he and Ms. Dang-Lawson do not have the financial resources to fund his appeal and he does not have any friends or family who can assist him with the appeal.

[10] The Crown, in opposing the application, submitted the appeal had little hope of success, but accepted that some of the grounds are arguable, principally those directed at the charge to the jury. The Crown’s main focus was on the financial disclosure contained in Mr. Lawson’s affidavit, which the Crown said was selective, particularly in regard to Ms. Dang-Lawson. In his affidavit, Mr. Lawson deposed:

37. Neither my wife nor I own any RSP nor TFSA accounts, stocks, bonds, CDs, nor any other form of financial instrument or investment instruments of any significant worth.
He also deposed that neither he nor Ms. Dang-Lawson own any assets of significant value that could be used to raise funds.


So what's missing from the list of what they don't have? He mentioned RSPs (Registered Savings Plans, very big in Canada) and TFSA (Tax Free Savings Accounts, also very big), stocks, bonds, certicates of deposits or any other form of financial or investment instruments. But he stopped there and did not state that he did not have an interest in any other non-financial type of investment such as, say, real estate. Unfortunately for Keith it seems that the Crown wasn't inclined to take him at his word and did a province wide title search and found a real property in Merritt, a town in the British Columbia interior, registered in his wife's name that he'd somehow forgotten to mention.

[11] In light of the submissions made by both parties, I asked Crown counsel to provide me authorities dealing with: (a) whether the financial resources of an appellant’s family members is a relevant consideration under s. 684; and (b) appellate consideration of what I will call the “nature person” defence.

[12] When the hearing resumed on June 29, 2017, Crown counsel drew several decisions to my attention. I will refer to some of them later in these reasons. For his part, Mr. Lawson asked for the opportunity to provide additional information with respect to Ms. Dang-Lawson’s financial circumstances. As a result, I adjourned the matter to July 17, 2017.

[13] On July 12, 2017, Mr. Lawson filed an affidavit from Ms. Dang-Lawson. The exhibits to that affidavit include tax returns, and documents relating to a property in Merritt, British Columbia registered to Ms. Dang-Lawson. On July 14, 2017, the Crown filed an affidavit from a Canada Revenue Agency investigator. The exhibits to that affidavit include a recent title search of the Merritt property, documents concerning Ms. Dang-Lawson’s purchase of that property and the building of a house on it, and banking records relating to accounts belonging to Mr. Lawson and accounts belonging to Ms. Dang-Lawson. Some of those exhibits are copies of documents that were seized during the investigation that resulted in Mr. Lawson being charged.

[14] At the July 17, 2017 hearing, Mr. Lawson reasserted that he lacks the financial resources to fund his appeal. He further asserted that Ms. Dang-Lawson’s financial circumstances are such that she is unable to assist him. For its part, the Crown submitted that both Mr. Lawson and Ms. Dang-Lawson have been less than candid in disclosing their financial circumstances. Much of the Crown’s argument focused on the Merritt property, in particular, the sources of funds used to purchase that property and to construct a house on it. The Crown reasserted its position that although Mr. Lawson has arguable grounds, his appeal has little chance of success.

[20] In his affidavit, Mr. Lawson stated neither he nor Ms. Dang-Lawson own any assets of significant value that could be used to raise funds for his appeal. He did not mention the Merritt property. In recent years that property has been assessed for tax purposes as follows:

2015: $235,700 (Land: $190,000; Improvements: $45,700)
2016: $236,300 (Land: $179,000; Improvements: $57,300)
2017: $246,400 (Land: $170,000; Improvements: $76,400)


Whoops! Cough, cough, right. That property. So Keith tried to argue that the property was nothing to do with him. His wife bought it from her own funds, it was in her name, and he couldn't use it as an asset to fund his defense. Unfortunately, again, the Crown declined to accept his explanation and provided the court with hard evidence rather than affidavits;

[23] The picture painted by Ms. Dang-Lawson is that she purchased the Merritt property solely with her own funds and it is, therefore, not an asset Mr. Lawson can use to assist him in funding his appeal. However, the documents presented by the Crown paint a different picture.

[24] On May 8, 2007, Ms. Dang-Lawson offered to purchase the Merritt property for $187,000, with a $5,000 deposit. The vendors accepted that offer on May 18, 2007, and the transaction completed on June 15, 2007.

[25] On May 22, 2007, Ms. Dang-Lawson withdrew $5,000 from her bank account to purchase the draft used to pay the deposit. On June 8, 2007, she withdrew approximately $184,000 from her bank account to purchase a draft payable to the solicitor acting for her on the transaction. What is significant is that $85,000 of the money used to purchase the Merritt property can be traced to Mr. Lawson.

[26] From May 7 to June 4, 2007, Mr. Lawson deposited a total of $49,000 USD in cash into his US-dollar bank account (5 x $9,000, 1 x $4,000). On June 4, 2007, he converted $49,000 USD into $51,489.40 CAD, and transferred that money to his Canadian-dollar account. That same day he transferred $85,000 from his Canadian-dollar account to Ms. Dang-Lawson’s account. Mr. Lawson’s bank’s records describe that transfer as a “Private Loan”.

[27] Ms. Dang-Lawson has not provided any documents to support her statement that $60,000 of the money used to purchase the Merritt property came from her line of credit. The bank statement for the account from which she withdrew both the $5,000 deposit and the $184,000 payment covers the period May 19 to June 15, 2007. On May 19, 2007, that account had a balance of $73,452.34. There is no $60,000 deposit into that account prior to completion of the property transaction. For Ms. Dang-Lawson to have drawn $60,000 against her line of credit weeks before the transaction completed makes no sense. Accordingly, on the evidence before me, I do not accept that funds for that transaction came from her line of credit. What the evidence does show is that Mr. Lawson provided a substantial portion of the funds used to purchase the Merritt property.

[28] Cancelled cheques from Mr. Lawson’s Canadian-dollar account show he paid a construction company $20,044.98 in August 2008 and $5,521.70 in September 2008 for work done on the Merritt property. Those cheques list the account holder as “Keith David Lawson (a natural person)”. In his submissions to me, Mr. Lawson said he did not consider those payments to relate to building the house on the property because the construction company was simply “moving dirt”. The company’s invoices indicate it was involved in excavating and installing water and electrical lines, and a sewage disposal system.


Inevitably leading to this;

[32] Both Mr. Lawson and Ms. Dang-Lawson have been less than forthright with respect to Mr. Lawson’s involvement in the Merritt property. Indeed, I am of the view their failure to disclose that involvement was intentional and designed to obfuscate Mr. Lawson’s past and present financial circumstances. In other words, they sought to falsely make it appear as if he does not have an interest in any assets that could be used to pay for his appeal.

[33] The burden was on Mr. Lawson to establish he does not have the means to fund his appeal. He failed to meet that burden because I have no faith in the affidavit evidence he presented denying the existence of any assets he could use to fund an appeal. Accordingly, I dismissed his application.
"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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