Six months from my last posting another chapter in the Martin saga. To recap, taxpayer charged with OPCA tax evasion, goes to trial, gets things quashed on a judge's mistake about how to apply a constitutional right. Crown appeals, judge's bone-headed decision reversed, and a new trial ordered;
[24] For the reasons set out below, I respectfully find:
(1) The determination by the trial judge that the audit had become a criminal investigation prior to February, 2008 unreasonable and cannot be supported by the evidence;
(2) The trial judge erred in law in his application of the predominant purpose test; and
(3) The trial judge erred in law in finding insufficient evidence to support the Information to Obtain.
[25] Accordingly the Appeal is granted and a new trial is ordered
. . . . . . . .
[41] From a review of the transcripts, I restate my conclusion that I find the evidence is clearly consistent with and strongly supports a finding the auditor was engaged in a legitimate audit function to determine tax payer liability more generally. In other words, a civil matter and not crossing into the territory of penal or criminal investigations which would trigger Charter protections for the Respondent. There is insufficient evidence to conclude that an investigation was underway de facto or otherwise prior to the crystallization of the investigative decision in February 2008.
[42] The decision of the trial judge created procedural shackles on CRA regulatory officers; something to be guarded against, assuming the regulatory officers are acting appropriately and within the scope of their authority. In my view, the evidence consistently and strongly supports the auditor was acting appropriately, lawfully and within the scope of her authority and the trial judge erred in his application of the Jarvis factors to the evidence.
Now another trial decision has come out and it seems that Martin has decided to fight simultaneous battles in different courts on the same issue;
R. v. Martín, 2015 NSPC 57
http://canlii.ca/t/gkv1k
The relevant sentence in the new decision is this;
[10] Mr. Martin, in turn, appealed that decision to the Court of Appeal pursuant to the provisions of s. 839 of the Code. I do not believe that the case has been inscribed for hearing as yet.
However, while everybody was waiting for this further hearing in an interminable string of hearings to commence Mr. Martin was back at the original trial court demanding that the judge order the Crown to give him a pile of information.
[11] In his written application dated 4 August 2015, which was brought to my attention late last week, Mr. Martin seeks an array of disclosure from the prosecution.
Since there is still another appeal hearing in the works and nobody knows how it will end up (hint, hint, Darren is going to lose) the judge in this decision says there is no point in bothering with Darren's request, at least as yet;
[12] I dismiss the application as I find that this court has no jurisdiction to deal with it. Mr. Martin is in the wrong court. While a trial court is typically the proper venue for advancing applications for Charter relief, the status of this court at this time as a trial court is notional only; this is because the issue of whether there will be a re-trial remains to be settled in the Court of Appeal. What would be the point of this court ordering today that the prosecution turn over additional disclosure? Answer: no point. Even if ordered disclosed—assuming for the sake of argument that what Mr. Martin seeks exists in a fashion capable of being disclosed—any new evidence would not get to go before the Court of Appeal, absent a fresh-evidence application under R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759; and if not put before the Court of Appeal, what good would it do for Mr. Martin to have it before the question of whether there should be a new trial winds up getting settled?
The judge seems to be getting a little irritated at all the apparently pointless court time that is being wasted on Martin's stupidity;
[16] The unfortunate backwards irony here is that, notwithstanding Mr. Martin’s protests against income taxation, it remains clear to me from the evidence that I heard at Mr. Martin’s trial that he was paying it. Whether in the amounts or at the times stipulated by law are questions that would have to be settled at trial, should there be another one; but the simple fact is that Mr. Martin was reporting income and remitting tax, all on a regular basis—which leads me to believe that this is a situation that might have been worked out satisfactorily years ago, had Mr. Martin sought the advice and assistance of legal counsel.
[17] In his field of expertise, Mr. Martin does work of breathtaking beauty. His artistry in metalwork is almost without compare.
[18] However, in the field of legal analysis and advocacy, Mr. Martin’s work is deficient.
[19] If represented by counsel, Mr. Martin would have the constitutional assurance of effective and competent representation. Self-represented, he has no such assurance.
[20] Mr. Martin informs me in his written application that he has obsessed over this case to the extent that it has required him to spend a great deal of time away from his business. That represents a substantial amount of lost revenue which would undoubtedly have paid for excellent legal representation many times over.
[21] I cannot compel Mr. Martin to hire a lawyer. What I can do is ensure that Mr. Martin’s time, and that of the court, not be expended in any more unproductive efforts.
[22] As I have ruled already, the court dismisses Mr. Martin’s application, and the court will hear no further applications by Mr. Martin until the appeal has been determined. The outcome of the appeal will decide what might have to be done next and who might have to do it.