Martin + Associates also have broad experience, as reflected in some of the examples below, in the defence of Canadians charged with criminal tax evasion, failure to file tax returns and other tax matters including those related to GST and Customs tax enforcement.
As full disclosure of all elements of the government’s investigation of a tax evasion case is critical to the mounting of an effective defense Mr. Martin has consistently resisted various claims by government seeking to exempt themselves from their duty to make full and complete disclosure of their case and the investigative means used to assemble it. Accordingly, in
Canada (Attorney General) v. Sander [1992] B.C.J. No. 2781 (opens pdf) and
Canada (Attorney General) v. Sander [1994] B.C.J. No. 998 (opens pdf) Mr. Martin successfully litigated the right to the disclosure of high level policy advice from Revenue Agency central headquarters to regional Revenue Agency investigative offices respecting the observance of Charter s. 8 constitutional standards when carrying out document seizures. Then, when state claims to public interest immunity from disclosure were defeated the underlying tax evasion charges were stayed
R. v. Sander [1995] B.C.J. No. 790 (opens pdf) in consequence of the government’s breach of the right to trial within a reasonable time guaranteed by Charter s. 10(d).
Mr. Martin’s work in this field is further illustrated by his early vigilance to ensure that tax authorities do not use their unique statutory right to compel the targets of their investigations contrary to their right to remain silent as protected by the s. 7 fundamental justice guarantees of the Canadian Charter of Rights and Freedoms. Accordingly, in
R. v. Roberts [1998] B.C.J. No. 3184 (opens pdf) tax evasion charges were dismissed as an abuse of process following factual findings by a trial court that tax investigators disguised their criminal investigative purposes from the tax payers and then gave misleading trial testimony regarding such purposes. The abuses exposed in Roberts and similar cases ultimately led the Supreme Court of Canada to establish a bright line test precluding the use of audit powers for criminal investigative purposes in
R. v. Jarvis [2002] S.C.J. No. 76 at paras. 86 and 94 (opens pdf).
Following on Mr. Martin has utilized these principles to successfully resist efforts by the CRA and RCMP Organized Crime Special Forces Unit to compel members of a targeted class to produce otherwise confidential net worth financial information to the CRA in the first instance where there was evidence that the information would ultimately be passed on by the CRA to the RCMP for use for their criminal investigative purposes: see:
Vancouver Sun, July 21, 2008 (opens pdf).
Mr. Martin also defends domestic tax cases on their specific factual merits as illustrated by his successful defence at trial and on appeal of a Canadian citizen charged in a test case with intra-provincial tax evasion alleged by the CRA to have been committed by virtue of the differences in rates of taxation levied by the various provincial governments of Canada. At the moment M+A acts as advisory counsel in relation to IRS and CRA initiatives to inappropriately tax a number of senior business figures and are actively engaged in the defence of an accountant who is alleged to have committed fraud.
Finally, M+A is presently very actively engaged in challenging purported civil “audits” arising from the unauthorized release of the so-called “Panama Papers” and is challenging those provisions of the Income Tax Act that purport to authorize the warrantless transfer of “audit” information gathered to domestic and international criminal law enforcement agencies. (See “News” – April 18, 2018).
