In McCartie v The King, 2024 TCC 16, the Court, in a 158-paragraph judgment, held that the Crown, in the taxpayer’s Tax Court appeal, would not be able to rely on evidence gathered in violation of the taxpayer’s Charter rights, as identified by the BC provincial court.
[5] The Charter violations found by the BC Court are not being relitigated in this proceeding, and this Court has not been asked to decide if there were events giving rise to other Charter violations. The only Charter issues in this voir dire are whether a section 24 remedy can be imposed by this Court in respect of Mr. McCartie’s tax appeal for the Charter breaches found by the BC Court in respect of which remedies were already granted in that court and, if so what remedy is appropriate in this Court. This includes possible remedies for breaches of section 8 Charter rights that only exist with respect to criminal proceedings.
[6] For the reasons that follow, I have decided that section 24 of the Charter permits this Court to impose remedies if appropriate in respect of Charter breaches determined by another court in which a remedy is already being, or has been, imposed in respect of that court’s proceedings. I have concluded this could extend, if appropriate, to breaches of Mr. McCartie’s section 7 and section 11 Charter rights which can only be breached in the context of criminal proceedings.
[7] I have concluded that, in Mr. McCartie’s particular circumstances, certain evidence will not be able to be used by the respondent in this proceeding for certain purposes, whether by way of tendering it in evidence, using it to impeach credibility, referring to it in any manner that is even implicitly suggestive that an adverse inference might be drawn, or otherwise. The excluded evidence is set out below, and includes evidence subsequently obtained by the respondent as a result of having obtained evidence in breach of Mr. McCartie’s Charter rights. Nor can the respondent use the transcript in this voir dire or these reasons except, as permitted below, with respect to the evidence of the respondent’s witnesses on the substantive issues alone.
[8] I do not and cannot address at this voir dire stage whether Mr. McCartie’s alleged under-reporting of his income and revenue in the years in question, was done “knowingly or under circumstances amounting to gross negligence” permitting the assessment of penalties, or whether it was a misrepresentation permitting reassessments beyond the normal reassessment period. Those issues have to be left until the hearing resumes on the substantive merits.
