http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/142521/index.do
McCarthy v. The Queen (February 15, 2016 – 2016 TCC 45, Boyle J.).
Précis: Mr. McCarthy was a member of the “Fiscal Arbitrator” group of appellants. This group has flooded the Tax Court with cases in recent year, all unsuccessful. This decision may be the most amusing of the bunch. Mr. McCarthy’s lawyer argued, among other things, that “being compelled to attend at discovery and provide answers under oath constitutes torture as defined in the Criminal Code of Canada” [para. 17]. Not surprisingly Justice Boyle gave this argument short shrift and ordered Mr. McCarthy to comply with his discovery obligations failing which, presumably, his appeal would be dismissed.
Decision: Justice Boyle was remarkably restrained in responding to the “torture” argument:
[20] Subsection 269.1(4) of the Criminal Code dealing with torture provides that, in any proceedings over which Parliament has jurisdiction, any statement obtained as a result of torture is inadmissible in evidence, except as evidence that the statement was obtained as a result of torture. Mr. Sumner’s position is that this means that attending discovery would not only constitute torture, but would only provide inadmissible evidence.
[21] I am not at all persuaded by Mr. Sumner’s arguments or his authorities that this Court’s discovery processes mandated by the Rules, and which form a very integral part of due process and natural justice in this Court, and provide processes to be followed for the better administration of justice, constitute torture. Enough said.
[22] Mr. Sumner’s fourth argument is related to torture, and that is that compelling a person to complete discovery constitutes coercion at common law. If coercion is applied, then it is the taxpayer counsel’s position that the person being coerced has a reaction to it that it is not voluntary. He then takes the position that if Her Majesty the Queen is a party she is always coercive, in effect assuming the coercion, and concludes that if the result is that the answers on discovery under oath are not voluntary as a result, those answers would be inadmissible because they would not be credible, presumably because the taxpayer, his client, might not be telling the truth.
[23] This argument is very similar to, but different from, the torture argument. It is not being raised with respect to the Rules requiring an appellant to deliver a list of documents and documents on that list; the Appellant is in fact willing to do that within seven days. Mr. Sumner does again state that the Court would be coercive if it issued an order compelling discovery of the Appellant.
[24] I am not persuaded that the Crown is always coercive or should be presumed to always be coercive or always acts in a coercive manner. What was argued before me falls short, far short, of persuading me that such is the case.
It will be interesting to follow the next steps in this rather remarkable case.