Sharp v. R. - FC: “Fabricated” evidence allowed to remain on record with appropriate notation

Sharp v. R. - FC:  “Fabricated” evidence allowed to remain on record with appropriate notation

Sharp v. Canada (National Revenue) (July 13, 2017 – 2017 FC  684, Martineau J.).

Précis:  The applicants moved to set aside a ministerial requirement for information under subsection 231.1(2) of the Income Tax Act on the basis that it was being used to further a criminal investigation of their affairs.  In support of the application the applicants tendered an affidavit of a Ms. Kaiser which purported to attach correspondence involving an employee of CRA.  That correspondence was found to have been fabricated.  The sole question before the Court not already agreed upon by the parties was whether the fabricated correspondence should continue to form part of the record with an appropriate notation that it was fabricated (the position of the Crown) or whether it should be removed and replaced by a fresh affidavit provided by the applicants (the position of the applicants).

Decision:  The Court concluded that the Crown’s position was preferable:

[9]               Today, there is no compelling reason justifying that in the administration of justice, the Court exercises its discretion to allow the removal from the Court file of the Kaiser affidavit. The applicants did not make any inquiries about the authenticity of the fabricated letters before including them in the affidavit of Ms. Kaiser. The applicants must bear the consequences of their negligence, as well as the costs of these motions, which I find entirely reasonable. This is not a case where a solicitor has done something unauthorized to the detriment of his client. Indeed, while confessing his ignorance that the letters provided to him by Mr. Nagin were fabricated, Mr. Sharp paid Mr. Nagin’s legal fees to retain Mr. Donaldson and attended a meeting between Mr. Donaldson and Mr. Nagin. The applicants suggest that not removing the Kaiser affidavit “has the potential to create confusion and administrative and logistical issues for the parties [and] the Court Registry”. I disagree. The fabricated letters should remain in the Court record. The present order and reasons are public. Moreover, the Court is ordering that any copies of the Kaiser Affidavit to be filed in Court shall clearly indicate that paragraph 11 and Exhibits H and I have been struck out by order of the Court. Therefore, there is no risk of confusion.

[10]           For these reasons, the motions shall be allowed in part. I am satisfied that the relief proposed in respect of both motions in paragraph 28 of the respondent’s written representations dated June 22, 2017 is appropriate in the circumstances of this case. This is reflected in the order accompanying these reasons.

The Court awarded, on consent, costs to the Crown in the lump sum amount of $8000, inclusive of disbursements payable forthwith.  The comparatively large costs award appears to reflect the Court’s perception of the gravity of the situation.