INCOME TAX |
Practice |
Canada v. Gregory
A-192-00
Noël, Létourneau JJ.A.
11/10/00
10 pp.
Appeal from interlocutory T.C.C. order question of constitutionality of Income Tax Act, s. 245 appropriate question to be determined under Tax Court of Canada Rules (General Procedure), s. 58(1)(a)--T.C.C. Associate Chief Justice held constitutionality of s. 245 separate and discrete issue of law which can be determined without reference to any of other facts in issue in appeal--Appeal allowed--Per Noël J.A. (Rothstein J.A. concurring): A.C.J. erred in law when agreed to set question down for preliminary determination without benefit of adjudicative facts which have given rise to application of s. 245 in proceeding before him: Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031--Per Létourneau J.A. (concurring): Question to be addressed in Charter, s. 7 challenges not whether alleged fact can engage s. 7, but whether respondent's s. 7 rights actually engaged in circumstances of case--Here, no evidence as to how, why and when s. 7 rights of respondent engaged by potential application of s. 245--Indeed, liability of taxpayer herein may be determined by T.C.C. adjudicating upon non-245 (general anti-avoidance rules (GAAR)) issues, thereby making it unnecessary to rule on constitutionality of GAAR--To accept s. 245 unconstitutional for vagueness without evidence respondent's s. 7 rights engaged would elevate freedom from vagueness to statute of constitutionally protected s. 7 right, something which cannot be done: Blencoe v. British Columbia (Human Rights Commission) (2000), 190 D.L.R. (4th) 513 (S.C.C.)--Finally, to say legislation impermissibly vague and therefore offending principles of fundamental justice transforms these principles into protected interest--However, principles of fundamental justice not protected interest, but rather qualifier of right not to be deprived of life, liberty and security of person: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486--Necessary adjudicative facts with respect to constitutional challenge missing, and lead to conclusion question as framed and developed by respondent cannot be, and should not have been made, subject of preliminary determination--Furthermore, preliminary determination of constitutional issue will probably not result in shorter hearing or substantial saving of costs--Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 245--Tax Court of Canada Rules (General Procedure), SOR/90-688, s. 58(1)(a)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.