COURT OF APPEAL FOR BRITISH COLUMBIACitation:
R. v. David Lindsay(David-Kevin: Lindsay),2006 BCCA 150
Date: 20060328
Docket: CA032693
Between:
ReginaRespondent
And
David Lindsay (David-Kevin: Lindsay)Appellant
Before:
The Honourable Madam Justice Newbury
The Honourable Mr. Justice Hall
The Honourable Madam Justice Kirkpatrick
David Lindsay (David-Kevin: Lindsay)
Acting on his own behalf
J. Hyman
Counsel for the Respondent
Place and Date of Hearing:
Vancouver, British Columbia
March 13, 2006
Place and Date of Judgment:
Vancouver, British Columbia
March 28, 2006
Written Reasons by:The Honourable Madam Justice Newbury
Concurred in by:The Honourable Justice Hall
The Honourable Madam Justice Kirkpatrick
Reasons for Judgment of the Honourable Madam Justice Newbury:[1] Mr. Lindsay appeals the dismissal by the Chambers judge below, Mr. Justice Barrow, of an application for orders in the nature of prohibition and
certiorari in respect of five charges laid against “David Kevin Lindsay (David-Kevin: Lindsay)” under s. 238(1) of the
Income Tax Act for allegedly failing to file income tax returns. Mr. Lindsay claims that an incident which took place in Provincial Court on March 2, 2004 resulted in the Provincial Court’s “loss of jurisdiction” over him on these charges. Since the reasons of Barrow J. (indexed as 2005 BCSC 484) contain a fairly detailed description of the incident, I will describe it only briefly.
The Question of Identity[2] At the outset, however, I should note a unique, or at least unusual, feature of this case – Mr. Lindsay’s assertion that he is neither “a person” for income tax purposes nor “the person” charged with the income tax offences. When the Crown’s Information setting out the charges and the Summons were left at his house, he purported to refuse them and returned the Information and Summons to the Justice of the Peace marked “Void. Refused and Returned for Fraud, David-Kevin: Lindsay”. (A copy of his letter to the Justice of the Peace dated December 22, 2003, is unfortunately obscured in the Appeal Book, but that letter and Mr. Lindsay’s affidavit leave no doubt that Mr. Lindsay received the Information and Summons.) Mr. Lindsay also wrote on the documents:
I, David-Kevin: Lindsay, Am A Free will, Full Liability, Flesh And Blood Living Man, Created By God. I Am Not The “Person” David Kevin Lindsay Charged And/or Named And/or Otherwise Identified On Each Count 1, Count 2, Count 3, Count 4 And Count 5 On This Information.He did not say he is not “David-Kevin: Lindsay”, which name also appeared on the Information.
[3] As far as not being “a” person, Mr. Lindsay relies on the definition of “person” at s. 248 of the
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as amended, which states:
"person", or any word or expression descriptive of a person, includes any corporation, and any entity exempt, because of subsection 149(1), from tax under Part I on all or part of the entity's taxable income and the heirs, executors, liquidators of a succession, administrators or other legal representatives of such a person, according to the law of that part of Canada to which the context extends;Notwithstanding the word “includes”, Mr. Lindsay takes the position that only artificial persons such as corporations come within the definition, so that he is not subject to the requirement to file a return under the
Income Tax Act. This position ignores the fact that the ordinary meaning of “person” is a natural person (including, I would have thought, a “free will, full liability flesh and blood living man”) and that the purpose of the statutory definition is to
extend the meaning to include other specified legal entities as well. Mr. Lindsay’s position that he is not a “person” for purposes of the
Income Tax Act is simply not tenable.
The Events of March 2, 2004[4] On March 2, 2004, Mr. Lindsay was attending Provincial Court in connection with a traffic ticket matter. As I have said, the Crown had been experiencing difficulty in serving Mr. Lindsay with a Summons on the income tax charges, as Mr. Lindsay purported to refuse to “accept” service. Mr. Burnett, counsel for the federal Crown, was in court March 2, and became aware that Mr. Lindsay would be attending. (Contrary to Mr. Lindsay’s assertion, this was not “confidential information”.) Mr. Burnett had the income tax file brought forward, using a “call date” form for that purpose. Perhaps because he was in doubt as to whether Mr. Lindsay had in fact been served, he asked the Court to “deal with this matter” then and there – i.e., to have the Information in respect of the income tax charges read to Mr. Lindsay. However, the Provincial Court judge dealt first with the traffic ticket file, specifically, with Mr. Lindsay’s objection to the date proposed for a pre-trial meeting on the basis of an unexplained “conflict”. It became apparent that the alleged “conflict” was not valid, and the judge rejected his objection. Mr. Lindsay then left the courtroom — notwithstanding that the judge told him he did not have the Court’s permission to do so. The judge told a sheriff, “we need … do need Mr. Lindsay back.”
[5] The record does not reflect this, but Mr. Lindsay says he was then physically assaulted by one or more sheriffs in the hallway, and forced back into the courtroom. He told the judge, “I’m not a party to any proceedings and I have left already.” Crown Counsel again requested that the Court read the five charges to Mr. Lindsay. The Provincial Court judge told Mr. Lindsay:
Mr. Lindsay, there are five counts, as I said, before me. I appreciate that you’re unhappy with this process. Ultimately, you can pursue remedies under the Charter
, or under the Income Tax Act
or under the Criminal Code
, but that’s not something that I can consider at this point in time. I simply have an information before me. Any remedies that you might have with respect to the matter coming before the court, and whether or not the court is satisfied that you are properly before the court, is something for a later date.
Mr. Lindsay, the prosecutor has indicated that this matter has been call-dated. I do, in fact, have the matter before me. There are five counts, as I said.
Madam Registrar, could I see that traffic ticket again for one moment, please? Thanks.
Mr. Lindsay, the name on this court information, 59021, is David Kevin Lindsay. Is that you, sir?There was no response to this question or to additional questions regarding Mr. Lindsay’s name. The Court proceeded to read the charges to Mr. Lindsay and adjourned the matter over to the following week. No plea was taken.
[6] I gather from Mr. Lindsay’s transcript evidence (the Crown’s factum being singularly unhelpful) that Mr. Lindsay did not appear in court when required to do so at a date later in March; that a warrant was issued; and that in due course he was brought before another judge of the Provincial Court, Judge Stansfield (as he then was) on the five income tax charges and a charge of failing to appear. After various adjournments, and after giving Mr. Lindsay several opportunities to undertake to appear voluntarily for trial, Judge Stansfield ordered Mr. Lindsay detained. (I assume he was released some time later, though I have found no transcript evidence to that effect.)
[7] We are advised that several days have been scheduled for the hearing of the income tax charges since then. Mr. Lindsay tells us, however, that to date he (Mr. Lindsay) has “restricted all issues to jurisdictional ones” in Provincial Court. That fact, and other appeals on other jurisdictional objections, have evidently delayed any hearing of the substantive charges thus far. (One such objection is the subject of a second appeal brought by Mr. Lindsay which was scheduled to be heard with this one and had to be adjourned. In that appeal, Mr. Lindsay seeks to have all the statutes of Canada declared void on the theory that the Governor General of Canada was not appointed in accordance with the Constitution and that therefore her assent and the assent of her predecessors to Canada’s laws were and are “invalid.”)
The Judgment Appealed From[8] Against this background, Mr. Lindsay applied in the Supreme Court of British Columbia for orders in the nature of prohibition and
certiorari, to have the income tax charges in Provincial Court quashed. He argued that the “call date” form by which his file was brought forward to the Provincial Court judge on March 2, 2004 was invalid. Mr. Lindsay relies on s. 34(2) of the
Interpretation Act, R.S.C. 1985, c. I-21, which provides in essence that the procedures provided at Part XVI of the
Criminal Code apply to
Income Tax Act offences. Since the
Code makes no provision for a court to compel an accused to attend in court by means of a “call date” form, Mr. Lindsay contends that the use of the form tainted, and indeed invalidated, all that occurred in Provincial Court thereafter.
[9] Again, Mr. Lindsay’s argument ignores an obvious fact — that the form was used to order court staff to bring
his file to the judge on March 2, not to compel
his appearance before the Court. (Mr. Lindsay was of course already in the courtroom on the traffic ticket matter). The Chambers judge rejected his submission, stating at para. 12 of his reasons:
There is no merit to this argument. The court is entitled to administer its affairs as it sees fit. The information in question was properly sworn and a file had been generated in the court's system. The court is of necessity required to adopt any number of administrative procedures in order to effectively carry out its responsibilities under the Criminal Code
. The "call date" form is but one illustration of those procedures. The fact that the Provincial Court is a statutory court without inherent jurisdiction does not prevent it from implementing internal or, indeed, informal procedures intended to promote the efficient administration of its statutory responsibilities.I see no error in this reasoning.
[10] Mr. Lindsay’s more substantive argument was that the Provincial Court had not “acquired” jurisdiction over him in respect of the income tax charges on March 2, 2004, and if it did, it had lost and did not “reacquire” jurisdiction, when he was forcibly brought back into the courtroom by the sheriff. In response, the Crown contended below that the Provincial Court’s jurisdiction over the person of Mr. Lindsay was not “affected by the manner in which the person is brought before the Court” and that it had jurisdiction over Mr. Lindsay “both when he initially appeared and when he involuntarily appeared later that same day.” (Reasons of Barrow J., para 14.)
[11] The Chambers judge acceded to the Crown’s arguments. He noted that the weight of authority is to the effect that provided the information or other process before the court is otherwise proper, the court’s jurisdiction over an accused is not affected by the manner in which he or she is brought before it. In this regard, Barrow J. cited certain
dicta of Riddell J.A. in
Rex v. Isbell (1928) 51 C.C.C. 362 (Ont. S.C., App Div); as well as
R. v. Gougeon (1980) 55 C.C.C. (2d) 218 (Ont. C.A.),
R. v. Walton (1905) 10 C.C.C. 269 (Ont. C.A.),
R. v. Poje [1953] 1 S.C.R. 516,
R. v. Sidor (1982) 39 A.R. 541 (Q.B.), and a statement in Ewaschuk,
Criminal Pleadings and Practice in Canada (looseleaf, 2nd ed.), at para. 1: 7120:
Jurisdiction over an offender may be acquired or regained in any manner which results in his appearance before a court with jurisdiction over the offence, e.g., by summons, warrant or voluntary or involuntary appearance. [Emphasis added.]
Barrow J. then noted
R. v. Tait [2001] O.J. No. 2948 (Ont. C.J.), on which Mr. Lindsay relied. He commented:
As noted above, Mr. Lindsay relies on R. v. Tait
in support of his position. He quotes from that case at para. 71 as follows:A person may be brought before the court by means of a summons, an offence notice, a notice of trial, an undertaking, a recognizance, a warrant, a judge's order, or by voluntary appearance...He concludes from the foregoing that absent one of those methods of securing the accused's attendance the court does not have jurisdiction. In my view, R. v. Tait
does not stand for that proposition. Indeed, later in that case Justice of the Peace Quon adopted the remarks of Mr. Justice Dubin from R. v. Naylor
in the Ontario Court of Appeal as follows:A distinction must be made between those matters which relate to the validity of an information and those matters which relate to the validity of a summons or warrant or to matters relating to the confirmation of an appearance notice, promise to appear or recognizance. Where there is a valid information and an accused attends, the trial Judge has jurisdiction to proceed with the matter notwithstanding that there has been a defect in the process respecting a summons or warrant or confirmation. The invalidity of such process, not invalidating the information, would not deprive the Court of proceeding with the matter when the accused is before it. However, where the information itself is invalid, the trial Judge would have no basis upon which to proceed.(emphasis added)
Although not expressly dealing with appearances brought about in circumstances such as those before me that principle, in my judgment, applies here. As long as the defect,
whether it is a defect in the issuance of process or a defect in the manner by which the accused is otherwise brought before the court, does not invalidate the information (and in this case there is no suggestion that it does) then the court has jurisdiction to proceed once the accused is before it
.Mr. Lindsay applies for orders in the nature of prohibition. The writ of prohibition is as pointed out in Criminal Pleadings and Practice in Canada
at para. 26:300,
... the means whereby a superior court prevents (prohibits) a court of inferior jurisdiction from exercising, or attempting to exercise, a jurisdiction which it does not possess or which it has lost.Given that I am satisfied the Provincial Court had jurisdiction in this matter, the writ does not lie and the orders sought will not be granted. [Paras. 21-4; emphasis added.]
[12] In addition, Barrow J. in the case at bar noted that a writ of prohibition, being a prerogative writ, is not granted if alternative remedies are available: see
Dubois v. The Queen (1986) 25 C.C.C. (3d) 221 (S.C.C.). He stated that other remedies might be available to Mr. Lindsay in respect of the alleged assault of his person on March 2 — for example, under s. 24 of the
Charter, or at common law by means of the doctrine of abuse of process.
[13] With respect to Mr. Lindsay’s argument that he is not the person charged under the income tax Information and that he would be deprived of his defence (which is that he is not the person charged) if he were compelled to proceed to trial, the Chambers judge adopted at para. 27 the comments of Bernard J. in
HMTQ v. Lindsay, 2004 BCSC 1181, who stated:
Court attendance, per se
, cannot prejudice a defendant in his or her defence, whether based upon lack of identification or otherwise. Mr. Lindsay is wrong in his belief that by attending court his defence (that he is not the person named in the Information) would have been prejudiced. He was free to advance that defence and any other; however, he was not free to evade the court process once he was named as a defendant, even if erroneously named.(I note parenthetically that other Provincial Court judges have given similar assurances to Mr. Lindsay, and that counsel for the Crown has clearly acknowledged in court that by appearing in court on the charges, Mr. Lindsay would not be taken as “attorning” to its jurisdiction or somehow conceding that he is the person named in the Information.)
[14] The Chambers judge also rejected Mr. Lindsay’s argument in favour of an order in the nature of
certiorari; but since this was not pursued on appeal, I need not recount the Court’s findings in that regard. In the result, Mr. Lindsay’s applications were dismissed.
ANALYSIS[15] Returning to the incident of March 2, 2004, I note that there is nothing on the record of the proceedings to suggest that the Provincial Court judge ordered the sheriff to drag Mr. Lindsay forcibly back into the courtroom. It is likely she assumed that, like most people, Mr. Lindsay would do the Court the courtesy of returning when requested. But Mr. Lindsay did not do so, apparently being under the (erroneous) impression that he had not been served with the Summons and Information and was entitled to leave unimpeded. The question for this court is not whether he was correct, but whether the Chambers judge below erred in concluding that the Provincial Court did not “lose jurisdiction”, and that it now has jurisdiction over him in respect of the income tax charges.
[16] Mr. Lindsay likens the incident of March 2 to a forcible “kidnapping” such as occurred in
R. v. Horseferry, Rhode Magistrate’s Court, ex parte Bennett [1994] 1 A.C. 42 (H.L.). It concerned a New Zealand citizen who was alleged to have committed criminal offences in the United Kingdom. He was traced to South Africa by the English police and was returned forcibly to the U.K., which had no extradition treaty with South Africa. According to the headnote, the accused claimed that he had been kidnapped from South Africa as a result of collusion between the South African and English police, and sought to challenge the jurisdiction of the court in the U.K. to commit him for trial. He requested an adjournment in order to challenge the court’s jurisdiction but that application was refused by a magistrate. The Court of Queen’s Bench upheld the refusal.
[17] On appeal to the House of Lords, the Crown sought to rely on various older English authorities, as well as two Canadian cases (
R. v. Walton [1905] 10 C.C.C. 269, and
Rex. v. Whiteside (1904) 8 C.C.C. 478) which supported the proposition that once an accused is before the court, the circumstances under which he or she was brought there are not the concern of the court, but of the executive branch of government. The majority of the House of Lords held, however, that the doctrine of abuse of process should be extended and that the judiciary should “accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action, and refuse to countenance behaviour that threatens either basic human rights or the rule of law.” (At 62.) This conclusion was reached even though there was no suggestion the accused would not receive a fair trial or that it would have been unfair to try him if he had been returned to England through proper extradition procedures. Lord Griffiths observed:
I have no doubt that the judiciary should accept this responsibility in the field of criminal law. The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is a function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended. So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it. …The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as abuse of process and thus preventing a prosecution.In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party. [At 62.]
Accordingly, the House of Lords returned the matter to the Court of Queen’s Bench with the instruction that it had the power to inquire into the circumstances by which the accused had been brought into the jurisdiction, and to stay the prosecution if satisfied that it was in “disregard of extradition procedures”.
[18] Although the House of Lords made no reference to “loss of jurisdiction”, and indeed obviously contemplated that the court would continue to have jurisdiction — including jurisdiction to grant a stay if appropriate — Mr. Lindsay contends that this court should follow the lead of
Horseferry and express its outrage at his treatment by ruling that the Provincial Court lost jurisdiction over him by virtue of the March 2 incident.
[19] Before us, the Crown simply relied on
R. v. Naylor (1978) 42 C.C.C. (2d) 12 (Ont. C.A.) and
R. v. Gougeon,
supra, for the proposition that the jurisdiction of the Provincial Court “was not affected by the manner in which the appellant was brought before the Court.” As well, counsel emphasized that Mr. Lindsay was not precluded from pursuing other remedies, nor from asserting that he is not the person referred to in the Information.
[20] I agree with the Chambers judge that the weight of Canadian authority is to the effect that jurisdiction will not be affected by the manner in which the accused is brought before the court, assuming the charging document is not defective. It is true that the authorities relied on by the Crown and by the Court on this point are not recent and pre-date the
Charter; but Mr. Lindsay was not able to cite any case to us in which the involuntary appearance of an accused pursuant to a valid warrant or other process has been held to deprive a court of jurisdiction. Since the
Charter came into effect, new remedies have been available to persons who are arbitrarily detained in violation of their rights under s. 9. Those rights are enforceable by a stay of proceedings where appropriate, as well as by the traditional civil law remedies. The new developments only strengthen the Crown’s submission that an order in the nature of prohibition is not available in this case,
even if one were to accept (which I do not) that the incident of March 2, 2004 was in any way comparable to that in
Horseferry.
[21] Even if this were not the case, any defect in the process whereby Mr. Lindsay was brought before the Court on the income tax charges became moot once a warrant was issued later in March 2004 by Judge Stansfield. The Provincial Court has clearly had jurisdiction over Mr. Lindsay from
at least that point.
[22] As Mr. Lindsay has been told on many occasions, the fact he was compelled to attend in Provincial Court does not preclude him from advancing his defence, based on identity, to the income tax charges. He is still entitled to put the Crown to the proof of its case against him, which must include proof of his identity as the offender, assuming the offences took place. This is true even though on April 5, 2004, after the warrant was issued for Mr. Lindsay’s arrest and he was charged with failing to appear, Judge Stansfield requested that Crown counsel provide proof that it was indeed Mr. Lindsay who had been served with the “Requirements to File”. Crown counsel called Ms. Tracy Todd to the stand, who testified that she had served the “Requirements to File” on “David Kevin Lindsay” and that he was the individual in the courtroom that day. Judge Stansfield then stated:
David Kevin Lindsay, I put the Crown to that burden in order to be careful that you, the man to whom I’m speaking, are the same man who is charged in this information. I recognize that you do not recognize the validity of these proceedings, but I am satisfied that the Crown is seeking to prosecute you,
the man to whom I’m speaking. [Emphasis added.]
Again, this does not obviate the necessity for the Crown to prove, in the actual trial of the income tax charges, that Mr. Lindsay is in fact
the person who has failed to file income tax returns as alleged, if indeed that is proven to be the case. In the meantime, the Provincial Court has the jurisdiction, which it has not lost, to proceed with the trial of the charges laid out in the Information
[23] I would dismiss the appeal.
“The Honourable Madam Justice Newbury”
I Agree:
“The Honourable Mr. Justice Hall’
I Agree:
“The Honourable Madam Justice Kirkpatrick”
