[107623] in Cypherpunks
RevCan challenged Fwd: FUNDAMENTAL RIGHTS PROTECTED
daemon@ATHENA.MIT.EDU (Jean-Francois Avon)
Tue Jan 19 18:32:50 1999
From: "Jean-Francois Avon" <jf_avon@citenet.net>
To: "e$@vmeng.com" <e$@vmeng.com>, "Cypherpunks" <cypherpunks@toad.com>,
"=?iso-8859-1?q?Le_Qu=E9becois_Libre?=" <libre@colba.net>,
"OFFSHORE Magazine" <OFFSHORE@dnai.com>
Date: Tue, 19 Jan 1999 18:08:58 -0500
Reply-To: "Jean-Francois Avon" <jf_avon@citenet.net>
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>From: "Breitkreuz, Garry - Assistant 1" <BreitG0@parl.gc.ca>
>To: Avon <jf_avon@citenet.net>, [long list deleted]
>Subject: FUNDAMENTAL RIGHTS PROTECTED
>Date: Tue, 19 Jan 1999 14:10:38 -0500
Here's an interesting court ruling which may help in some future court case
involving our right to privacy, our right to be protected against
self-incrimination and our right to be free from unreasonable search and
seizure.
Here's the relevant quote from the Jan 19/99 Globe and Mail article:
"In 1997, the Federal Court of Appeal agreed with Mr. Del Zotto that Revenue
Canada's powers to set up special inquiries under the Income Tax Act were
unconstitutional. It ruled by a 2-1 majority that the inquiries violate an
individual's right to privacy by allowing investigators to pore freely over
papers likely to contain intimate personal information. The court found
violations of the right to be protected against self-incrimination and the
right to be free from unreasonable search and seizure. It said that scrutiny
of an individual's finances automatically opens a window into his or her
most private life."
PUBLICATION GLOBE AND MAIL
DATE: TUE JAN.19,1999
PAGE: A2
BYLINE: KIRK MAKIN
CLASS: National News
DATELINE:
WORDS: 566
Ottawa goes to court to protect tax powers
Revenue Canada probe held unconstitutional
KIRK MAKIN
Justice Reporter Federal government lawyers will launch a high-stakes battle
in the Supreme Court of Canada tomorrow to uphold Revenue Canada's
extraordinary powers to delve into the financial affairs of Canadian
citizens. The little-known case involves a tax-evasion probe into the
finances of Angelo Del Zotto, a prominent Toronto developer.
The investigation was launched in 1992, after Revenue Canada came to suspect
Mr. Del Zotto of trying to evade $1.67-million in income tax by failing to
report $5-million in stock profits from 1979 to 1985.
In 1997, the Federal Court of Appeal agreed with Mr. Del Zotto that Revenue
Canada's powers to set up special inquiries under the Income Tax Act were
unconstitutional.
It ruled by a 2-1 majority that the inquiries violate an individual's right
to privacy by allowing investigators to pore freely over papers likely to
contain intimate personal information.
The court found violations of the right to be protected against
self-incrimination and the right to be free from unreasonable search and
seizure. It said that scrutiny of an individual's finances automatically
opens a window into his or her most private life.
In a brief to the Supreme Court, Justice Department lawyers argue that even
should the court rule that the special inquiries are unconstitutional, they
are justified in a system of government that depends so profoundly on tax
revenue.
Ivan Bloom and Gordon Campbell contend that the economic need for government
to be able to collect valid taxes constitutes a "pressing and substantial"
objective.
Special inquiries are authorized under s. 234.1 of the act. Although they
appear as a regulatory function, they can root out evidence that leads to
serious criminal charges.
Investigators can subpoena individuals and seize documents in the course of
an inquiry, despite the absence of any requirement to persuade an impartial
judicial officer that they have reasonable and probable grounds for their
demands. It is a power even police officers do not have.
In its 1997 ruling, the Federal Court of Appeal remarked in no uncertain
terms that Revenue Canada can use inquiries as a back-door method of
acquiring evidence in what is really a criminal matter -- while at the same
time avoiding the rigid safeguards that apply to actual criminal
investigations.
The court said Mr. Del Zotto's right to privacy was in peril from the moment
the inquiry into his affairs began in 1992.
The inquiry was launched following an audit of his 1985 tax return. While
Mr. Del Zotto was never personally served with any subpoenas, an associate,
Herbert Noble, was subpoenaed to provide evidence against him.
Lawyers for Mr. Del Zotto and Mr. Noble regarded this as an attempt to avoid
the obvious element of self-incrimination that would have been involved had
Mr. Del Zotto been subpoenaed. They moved immediately to shut down the
inquiry.
However, Mr. Bloom and Mr. Campbell maintain there was no Charter breach
because Mr. Del Zotto was not summoned to testify or produce documents
himself.
The principle against self-incrimination is exclusively a "personal" right,
their brief says. "The principle against self-incrimination does not
preclude the calling of third persons to incriminate an individual."
Unlike the solicitor-client relationship, the federal lawyers argue, many
financial relationships entail a risk that one individual may disclose
details to a third party.
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