Barrett Tax Law successfully litigated what could be a first in Canada. Using the defence of battered women’s syndrome to show L (shortened for privacy of client) never had the opportunity to file her taxes and exercised due diligence.

In the case of R v. L. a woman was charged with five counts of Failure to File under s. 238(1) of the Income Tax Act. The alleged offence is a strict liability offence with the only available defence being one of due diligence. These cases are thus very seldom found in favour of the defendant. Maximum penalty: $25,000 plus 12 months in prison.

It was admitted that she was properly served by the Canada Revenue Agency and that she had never filed her taxes. The question at trial is whether the accused took all reasonable steps and was diligent in trying to file her taxes.

Facts:

L owned a beauty salon and had been married to the same man for more than 30 years, since a young age. Her husband was unemployed for many years and had dealt with the household finances. He controlled L through mental and financial abuse. L would work seven days a week to make enough for the family to live, while the husband did nothing but spend the money earned by L.

At trial, two accountants and two employees of the spa testified. Each described how the husband was controlling, manipulative and abusive. He was the only one allowed to write cheques, pay bills or communicate with utility companies that were threatening to shut off the supply. L testified about how she had fallen in love at a young age, married, had children and started a successful business. She would work hard to provide for her family while her husband spent the money frivolously and yelled at her anytime she tried to ask about finances. He was verbally abusive and controlled what she wore and who she spoke to. While the couple shared a joint bank account, only the husband had access to the funds.

The husband testified that he had been unemployed for years and that he controlled the finances for both home and business. He wrote all cheques. He paid all bills, not necessarily on time. When asked if he belittled his wife for the friends she chose and the clothes she wore, he admitted such facts. He further admitted that he had been unfaithful to L and had extramarital affairs.

Decision:

His Honour, after hearing closing arguments from the Crown and Scott Pommerville of Barrett Tax Law, applied the standard for strict liability offences as decided by the Supreme Court of Canada in R v. Sault Ste-Marie. The Court stated that the defence of strict liability “will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.” His Honour found that L had been so controlled, amounting to financial and emotional abuse, that she exercised due diligence when asking her husband if he had filed the taxes and his response was ‘yes.’ The simple act of asking her abusive husband if he had dealt with the CRA constituted due diligence. It is reasonable for an abused spouse not to explore the issue any further once the abuser states (s)he has dealt with the matter.

This is believed to be the first case in Canada where financial and emotional abuse of a spouse was successfully argued in defence of a strict liability offence. If you or someone you know has been charged with a crime under the Income Tax Act, call Barrett Tax Law and let us defend your rights.