R. v. Stanley J. Tessmer Law Corporation – FCA: GST Payable on Criminal Defence Fees Does Not Offend the Charter

Bill Innes on Current Tax Cases

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The Queen v. Stanley J. Tessmer Law Corporation[1] (December 12, 2013) involved an appeal by the Crown heard at the same time as five consolidated appeals by Stanley J. Tessman Law Corporation (“Tessmar”).

The Crown’s appeal dealt with the Tax Court’s conclusion that Tessmar had standing to argue that GST payable on criminal defence fees offends the Charter.

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The Crown’s appeal was not successful:

[6]               Under ss. 221 and 225 of the ETA, Tessmer is an agent of the Crown. It is required, as a “person who makes a taxable supply,” to collect from its clients the GST payable on legal fees and to remit to Her Majesty in right of Canada the appropriate GST net tax amount. Although Tessmer technically initiated the appeals to the Tax Court of Canada, it did so because, as Miller J. found, “the onus is placed on the taxpayer to show an error in the Minister’s assessment” (Miller J.’s reasons at paragraph 20). This, Justice Miller wrote, is a “nuance of our self-assessing system” (ibidem). As a result of its decision not to collect or remit, Tessmer was assessed GST, interest and penalties totalling approximately $360,000. Faced with the five above-mentioned assessments, it could either pay the amounts notwithstanding its belief that collecting GST from its clients violates their constitutional rights, or appeal the assessments to the Tax Court of Canada.

[7]               On this basis, I see no error in Justice Miller’s finding that Tessmer was brought to the Court involuntarily or with the result that Tessmer was granted standing based on the exception set out in CEMA. Having found that Tessmer has standing, I turn now to the appeal on the merits.

Tessmer appealed the Tax Court’s finding that the imposition of GST on criminal defence fees did not violate section 10(b) of the Charter.[2]

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That appeal was also unsuccessful:

[10]           As discussed in John Carten Personal Law Corp. v. British Columbia (Attorney General) (1997) 40 B.C.L.R. (3d) 181 (BCCA), leave to appeal denied, [1998] S.C.C.A. No. 205, there are many reasons why the cost of legal services, or a lack of financial means may restrict, hamper or even prevent someone from exercising rights of access to courts or to other legal services (at paragraph 33). This accords with the Supreme Court of Canada’s decision in British Columbia (Attorney General) v. Christie 2007 SCC 21, [2007] 1 S.C.R. 873 [Christie] in which the Court cited with approval the position of the Attorney General of British Columbia who was arguing that “the economics of legal services may be affected by a complex array of factors, suggesting the need for expert economic evidence to establish that the [provincial] tax [on the purchase price of legal services] will in fact adversely affect access to justice” (ibidem at paragraph 28).  Once again in Christie, the Supreme Court cautioned against deciding constitutional cases without an adequate evidentiary record (at paragraph 28).

[11]           Here, there is a total lack of evidence and counsel for Tessmer was unable to point to any authority justifying our Court to depart from the teachings of the Supreme Court of Canada in Danson or Christie. On the facts of this case, this complete lack of evidence is fatal to the constitutional challenge launched by Tessmer.

[12]           As a result, I need not address Tessmer’s argument regarding the scope of s. 10(b) of the Charter. My silence, however, should not be interpreted as an endorsement of Paris J.’s reasons on this issue (see in particular paragraphs 61 and ff. of Paris J.’s reasons).

[13]           Consequently, I propose to dismiss the appeal in file A-104-09 with costs. I also propose to dismiss the appeals in files A-50-13, A-51-13, A-52-13, A-53-13 and A-54-13 with one set of costs.

[14]           Finally, I would respond to the constitutional question, as amended by Paris J., as follows:

Based on the facts set out in the Agreed Statement of Facts filed by the parties, the goods and services tax (GST) imposed by s. 165 of the Excise Tax Act does not infringe and is not inconsistent with the rights of the Appellant’s clients guaranteed by s. 10(b) of the Charter of Rights and Freedoms.

Comment:  It is interesting that the Federal Court of Appeal chose to decide the Tessmer appeal strictly on the basis of the lack of any evidence of prejudice to the clients of Tessmer rather than the more expansive basis adopted by the Tax Court.  This presumably leaves the question of a Charter challenge to GST on criminal defence fees an open issue if a sufficient evidentiary foundation were put before a court.

[1] 2013 FCA 290.

[2] Arrest or detention

10. Everyone has the right on arrest or detention


    (b) to retain and instruct counsel without delay and to be informed of that right;  …