http://decisions.fca-caf.gc.ca/site/fca-caf/decisions/en/item/62835/index.do
Breau v. The Queen[1] (September 16, 2013) involved Mr. Breau’s appeal of an unsuccessful application in the Federal Court for an order quashing requirements issued to him and others in connection with his tax affairs. The basis for the application was that the requirements violated the rule established by the Supreme Court of Canada in
R. v. Jarvis[2] in that it was alleged that the predominant purpose for the requirements was a criminal investigation into his affairs.
The Court of Appeal dismissed his appeal from the bench:
[5] In this Court, Mr. Breau accepts Jarvis as the controlling authority. In Mr. Breau’s view, the Federal Court mischaracterized certain matters, thereby wrongly concluding the requirement was civil in nature. In particular, Mr. Breau that submitted the audit branch was acting as an agent for the enforcement branch in collecting evidence, the evidence gathered by the audit branch was relevant to penal liability, and the contact between the audit and enforcement branches while the criminal investigation was ongoing was important and significant.
[6] In our view, the Federal Court’s rulings on these matters are questions of mixed fact and law suffused by fact. Therefore, in this Court, Mr. Breau must demonstrate palpable and overriding error in order to set them aside.
[7] This he has not done. In our view, the Federal Court examined the particular constellation of evidence before it, which included some isolated incidents of contact between the audit and enforcement branches after the criminal investigation started. Based on this constellation of evidence, it made defensible findings.
[8] In this Court, Mr. Breau also challenged the Federal Court’s overall conclusion that the Minister’s predominant purpose in issuing the requirement was civil in nature under the Jarvis test. We see no reversible error on the part of the Federal Court based on the particular evidence before it.
[9] In rejecting Mr. Breau’s submissions, we do not foreclose a court in any later criminal proceedings from reaching a different conclusion if, based on the evidence then available, a different light is cast on the matter.
[1] 2013 FCA 215.
[2] 2002 SCC 73, [2002] 3 S.C.R. 757.