[OFFICIAL ENGLISH TRANSLATION]
Date: 20011214
Docket: 2000-5119(IT)I
BETWEEN:
FERNANDE CHAMPOUX
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
For the Appellant: The Appellant herself
Counsel for the Respondent: Simon-Nicolas Crépin
REASONS FOR JUDGMENT
(edited transcript of the Reasons for Judgment
delivered orally from the bench on
October 18, 2001, at Québec, Quebec)
[1] THE COURT: I understand you completely, madam. The only thing is that I do not think you are in the right forum to express the difficulties you are facing. That is too bad, but it is not within the power of a court of justice bound by an act, which is passed by Parliament, and which must therefore be strictly enforced, to exercise discretion in applying it or not applying it, depending on its analysis of an individual case. It must be applied in all cases. And I agree with you that it is definitely not easy for a single person to live on $11,000 a year. Except that I have no other choice, in the forum where I preside, but to apply the law. And the credit you were allowed is the credit to which you are entitled, nothing more. Now I agree with you that that may be far from sufficient for many people. And I am going to add that this credit (it was transformed into a credit a number of years ago and was previously a basic exemption) entails a somewhat different way of calculating. However, the credit nevertheless has not been indexed to increases in the cost of living for a number of years. That has just recently been done at the federal level.
[2] APPELLANT: Yes, I know that. I know that, yes.
[3] THE COURT: Those amounts have just recently been re-indexed at the federal level and will be indexed at the provincial level only for the coming year.
[4] APPELLANT: Well, they increased the amounts, they increased them by a lot.
[5] THE COURT: Yes, but, since we are talking about the federal level, let us stick to that, indexation as such was halted for a number of years and was halted for everyone.
[6] APPELLANT: Yes, I . . .
[7] THE COURT: Indexation of those amounts has just started once again.
[8] APPELLANT: Yes, I am aware of that.
[9] THE COURT: Precisely, so that they can be adjusted in accordance with increases in the cost of living. For many people, you will tell me that that is not sufficient. It may not be sufficient, except that it is not up to a judge to decide whether or not it is sufficient. The position we are in, whether in your case or in other cases, is that we must strictly apply the act and we cannot override it. The most appropriate forum for your demands is the political forum. You will tell me: [TRANSLATION] "Things do not move quickly, and I am all alone, and . . ." Well, you are not all alone; many groups make demands; anti-poverty groups demonstrated again yesterday. The way to make things change is to put pressure on governments for them to pass laws that better suit the needs of the people who make those demands, to the extent the government deems it necessary. Unfortunately, you have explained it all to me; I sympathize with your situation and I understand it. I do find it difficult, except that that does not give me any more power. And it does not give me special jurisdiction to deal with individual cases on the basis of a difficult personal financial situation. Nor does it give me more discretion to interpret the law. Do you understand?
[10] APPELLANT: But you cannot even give an opinion that would wake people up?
[11] THE COURT: No. As a judge, I am not asked for my opinion; I am asked to render judgment on the law on the basis of . . . And since you mention the Charter, I can add one thing, and that is that, in Canada, the Charter of Rights and Freedoms does not cover what are generally called economic rights.
[12] APPELLANT: Well, it says we have the right to life.
[13] THE COURT: To life, liberty and security of the person.
[14] APPELLANT: Yes.
[15] THE COURT: But the analysis that case law has made at this point, even in the highest court in the land, does not cover strictly economic rights.
[16] APPELLANT: But, it is there for rights; it is universal; Canada . . .
[17] THE COURT: Yes, that is the United Nations Universal Declaration of Human Rights; it is not the Canadian Charter of Rights and Freedoms.
[18] APPELLANT: But we must be included in it, since it is universal.
[19] THE COURT: Yes, but there is no protection¾how can I say it?¾for strictly economic rights in terms of dollars or income levels, of . . .
[20] APPELLANT: Yes, that cannot be put in line with the credit, as you say now; it is called a credit; that cannot be put in line with the credit that is allowed. The credit allowed is $6,700; that clearly cannot be put in line, but when I'm told, in principle 9, that you must be protected from all forms of exploitation, I think this is a form of exploitation.
[21] THE COURT: In fact, that is your opinion. I do not think I can render a judgment of that nature.
[22] APPELLANT: No, but, if in the universal rights it says¾ask someone for what he cannot give; what is that called? It is . . . I don't know.
[23] THE COURT: I understand that your situation is difficult, madam, but there are people in much worse situations than yours.
[24] APPELLANT: Yes, I know, there are some who are completely out on the streets, but . . .
[25] THE COURT: Yes, that is correct.
[26] APPELLANT: There was another section that states that you must be protected from practices that can lead to any form of discrimination. The first time I was here, my whole argument dealt with that, discrimination against welfare recipients, because they . . . But the judge told me outright that that was because they, the benefits, they pay no tax because, when they receive the T5 . . . I was on welfare while waiting for alimony after my divorce, so I know how it works. We receive the T5 at the start of the year, at the end of the year or the start of the year, for our income tax return, if necessary, but the only amounts that appear on the T5 are what we received at home. If we changed our dentures, glasses or fridge, that is not written on it, and we pay no tax. And that is why the department's lawyer told me afterwards-well, the judge explained to me, saying: [TRANSLATION] "Yes, but that is right; he pays no tax, but . . ." He told me; he made me understand because he said: [TRANSLATION] "When you ask to have your dentures changed, how does that work?" Well, I said: [TRANSLATION] "You file a request with welfare and they study it. If it is valid, they will give us permission. We go ahead and present our health record, which we have with us at all times with our cheque, which comes with it. We present our health record and we just have to sign. They take down the number and send the bill to welfare." So, the judge said that that is why they do not include it in their taxes, because they cannot use it as they wish; they do not have it. But that changes nothing when you experience that, because . . ."
[27] THE COURT: No, I understand you, but in this case, we're dealing with the question of the basic personal credit.
[28] APPELLANT: Yes, that is correct; I . . .
[29] THE COURT: As I told you, that credit . . . You can argue in economic terms that it is not sufficient, that it should be twice or three times what it is or that it should be worth X amount. What I'm telling you is that, factually speaking, Parliament made a firm decision not to index that amount for a number of years. That has just been changed and it will now be indexed. And I do not think we will go back to the old system for a long time. We have just begun to re-index it and that will definitely help a little. It does not help . . . it never helps enough. Everybody complains, everyone complains and people who are less well off and people who are a little better off, who in any case pay too much tax at all levels. So that is an argument that can work at the political level, but that cannot work at a legal level as long as Parliament has passed legislation that we are obliged to apply. And that is the situation at this time.
[30] APPELLANT: In other words, here the Court is only . . . it exists only to determine whether a thing has been done, to determine whether the tax laws are applied?
[31] THE COURT: To determine whether the assessment is consistent with the law. Is the assessment that you have received consistent with the law or is it not consistent with the law? If it is not, the appeal is allowed. If it is, unfortunately it must be dismissed. That is the Court's only jurisdiction because this is a very specialized court; its sole jurisdiction with respect to federal income tax is to determine whether the assessment made is correct or not correct. Are the things that are not right in that assessment based on the act as Parliament passed it? It is not up to us to change them, the laws, and to say: [TRANSLATION] "Well, this morning, I'm going to take your case. I am very sensitive to your case, and I'm going to decide that, in your case, I will not apply it." Well, no.
[32] APPELLANT: Yes, but who decides that the laws will be changed? It is
the . . .
[33] THE COURT: The parliamentarians. It is the parliamentarians . . .
[34] APPELLANT: The legislative assembly?
[35] THE COURT: . . . It is the members of the House of Commons and the senators who pass the statutes. So it is at that level; you told me yourself that you had already written to your Member of Parliament.
[36] APPELLANT: Excuse me?
[37] THE COURT: You told me yourself that you had already written to your MP. That takes place at the legislative level. Once in court, the idea is to determine whether the government has done its job properly. Is the assessment that it has made correct or not correct based on the act as it exists? Based on the explanations you have given me, I am indeed obliged to answer that yes, it is correct. I am also obliged to dismiss the appeal, and it is not up to me to change the law.
[38] APPELLANT: Excuse me?
[39] THE COURT: It is not for me to send my message to Parliament. This is precisely what is called the principle of judicial deference, which means minding our own business and deciding what we have to decide. For other matters, we have no jurisdiction and nothing to say.
[40] APPELLANT: Here, in the notice of assessment, it is written that¾I hope I have not taken the wrong title. I read somewhere that, with regard to fairness, people now had . . . It's here on page 2: [TRANSLATION] "As part of our fairness initiative, we are taking important steps to protect your rights. We pledge to continue to improve our programs and services. Information is available . . ." Fairness initiative . . . because they always talk about that on the back of our tax return sheets. I think that, the time when the person had marked zero, let's suppose that I had accepted it. What would that have done?
[41] THE COURT: If you had accepted what? You would have left . . .
[42] APPELLANT: Well, he made an assessment for me.
[43] THE COURT: Yes?
[44] APPELLANT: And I wrote and expressed my point of view to those who had made the calculation.
[45] THE COURT: Yes.
[46] APPELLANT: He said: [TRANSLATION] "You asked for it." I have his name, but I did not bring it with me today. [TRANSLATION] "I know you are right. I grant you that." I called him and I said: [TRANSLATION] "Is there going to be further action? Will someone else take that, type on the computer and say, no, that won't work, and stop what you . . ." He thought about it and he did not know. So I said, [TRANSLATION] "In that case, strike it out." But suppose I had accepted it.
[47] THE COURT: Yes.
[48] APPELLANT: Because it was said, he said [TRANSLATION] "As part of the fairness initiative" because I had talked about that. And he said . . . At that point, he had decided, no one could have said: [TRANSLATION] "I challenge the way your assessment is made." I read it that way, as part of the fairness initiative. He had taken an initiative.
[49] THE COURT: Yes, well, I will explain to you what that is. It is quite limited despite everything. It is a power that has been conferred on the federal Department of Revenue, now the Canada Customs and Revenue Agency, in certain circumstances to make it possible to go back to 1985, in fact, first, to allow deductions that were not previously allowed but to which people were entitled, second, to eliminate interest in certain circumstances and, third, to set aside penalties in certain circumstances. I will not cite 25 examples; I will cite one.
[50] APPELLANT: Yes.
[51] THE COURT: The department makes a hasty assessment and comes back three years later when it realizes that an obvious error was made. At the taxpayer's request, it will be agreed to set aside the interest. So the department claims more tax from the taxpayer, with interest because a mistake has clearly been made, and so on, and the taxpayer says: [TRANSLATION] "Yes, but that's your fault; I am in . . ." etc., and it is realized that errors have in fact been made. The taxpayer is told one thing, then a second thing, then a third thing; everyone is confused. I am exaggerating in this example. It will be accepted at that point that, yes, the taxpayer will be reassessed and the amount of tax he actually owes will be claimed, but it will be agreed to set aside the interest. So that is the fairness initiative. That began in the mid . . .
[52] APPELLANT: In any case, it has not been around for a long time.
[53] THE COURT: Yes, that dates back to the mid-1980s, 1985.
[54] APPELLANT: Yes, well, on the back of our returns where we took our . . . it was written, but . . .
[55] THE COURT: Yes, but that means that the authorities can go back and allow you a deduction to which you were entitled. And despite the fact that it may be time-barred, a deduction to which you were entitled for a particular year. But what you are being given is what you are entitled to. You are entitled to the basic personal amount; it is a fixed amount; we know the amount; it is the one that was applied, based on what I can see in your case. So there's no question of allowing an additional amount, and on the basis of that principle, that does not enable officials to do what they want, to assess or not to assess depending on how sympathetic they are to the case.
[56] APPELLANT: And he found that I had outlined my . . . I had with my return . . . I explained the case, with the welfare recipients and everything, and he found that it was, that I was right.
[57] THE COURT: That it made sense and he did you justice himself.
[58] APPELLANT: He found that I was right, yes.
[59] THE COURT: Yes, but I am not saying that, on the merits, you are not right, I am not saying that . . . I am not ruling on . . . I am not giving an opinion on the fact that those basic personal amounts or equivalent to married amounts, or amounts for dependants, and so on . . .
[60] APPELLANT: No, I understand.
[61] THE COURT: I'm not saying that the amounts are right and that this satisfies everyone; I am not making a value judgment on that. I am simply telling you that that is the way it is, and if you were given that, it was based on the act and the act was applied. And I see that it was applied, so I do not have much else to do. I do not have . . . It is not because one is a judge that one has all the powers.
[62] APPELLANT: In future perhaps, when we are asked whether, when they write after a decision, [TRANSLATION] "If you do not agree," it seems to me that, in order to avoid our coming over here and disturbing things, that that should be written.
[63] THE COURT: Well, if you do not agree in the sense that you do not agree in a moral sense or in the value sense or in the economic sense, that is not what that means. You do not agree legally; in other words, you are persuaded that, based on the act, you are entitled to something and you were denied it. When you do not agree, that is what that means.
[64] APPELLANT: Based on the act, I . . .
[65] THE COURT: Because that is a legal argument; it is based on the law.
[66] APPELLANT: Yes, it is based on the law, but just the Income Tax Act, not the other laws.
[67] THE COURT: No, the Canadian Charter of Rights and Freedoms also applies at the federal level.
[68] APPELLANT: But is the Charter of Rights and Freedoms related to the Charter proclaimed by the United Nations? Is that valid?
[69] THE COURT: Well, in the sense that it is related, it is a . . . You first mentioned the universal declaration of human rights . . .
[70] APPELLANT: Yes.
[71] THE COURT: . . . then you mentioned the Declaration of the Rights of the Child; that has no . . .
[72] APPELLANT: But that is because that one, it can no longer be explained.
[73] THE COURT: There's no direct link. The Canadian Charter . . .
[74] APPELLANT: But is that recognized?
[75] THE COURT: . . . is entrenched in the Constitution and takes precedence over the Income Tax Act, which means, without elaborating too much in legal terms, that certain provisions of the Income Tax Act could in fact be struck down by using the Canadian Charter.
[76] APPELLANT: Because I heard one day that all the laws must . . . they call that passing the Charter test.
[77] THE COURT: Yes.
[78] APPELLANT: I do not think the Income Tax Act passes the Charter test.
[79] THE COURT: Yes, that's right. That's right.
[80] APPELLANT: As far as I'm concerned.
[81] THE COURT: I believe it does, but . . .
[82] APPELLANT: Well, it cannot . . . it has not been explained enough for me to back up what I say formally but that one, it has been explained enough.
[83] THE COURT: Now you are talking about the Declaration of the Rights of the Child.
[84] APPELLANT: Of the rights. Yes, but if it is valid; I do not know whether it is still valid.
[85] THE COURT: Yes, yes, it is valid in the sense that it is not the law of the land, but . . .
[86] APPELLANT: But it is universal; it is significant.
[87] THE COURT: Yes, yes, it was in fact declared by the United Nations.
[88] APPELLANT: But if it is universal and I'm entitled to that, how can the other act be fair in my case? I do not mean in all cases. I have a son who has just received a big pay increase. I mean $8,000 a year. I often think about income tax and I asked him: [TRANSLATION] "How much of that are you going to have in your pocket?" Because he has risen to quite a high level . . . [TRANSLATION] "Half that." And that did not bother him because he had $4,000 more to live on.
[89] THE COURT: There are people who are bothered at having to give half their pay increase to the government.
[90] APPELLANT: Excuse me?
[91] THE COURT: I said there are people who are bothered by that.
[92] APPELLANT: Well yes, but he . . . I mean, that will not prevent him from living.
[93] THE COURT: He has enough to live on.
[94] APPELLANT: Well, I mean he has $4,000 more.
[95] THE COURT: Yes, I understand.
[96] APPELLANT: He said . . . I told him this: [TRANSLATION] "You'll be left with $4,000." Well, he said: [TRANSLATION] "If they had given me $4,000, I would have had $2,000."
[97] THE COURT: That is correct.
[98] APPELLANT: That is correct, but I mean that does not trouble him, in his case, because he is still living and he will not be prevented from doing anything all year because of that. So that's it. But I always say, if you compare it with that, the Income Tax Act is not fair. But I don't know the value of that. I know the Charter because it was done recently; it's from here, I became aware of it; it was signed by Pierre-Elliott Trudeau. I know that, but it hasn't been explained enough. They say "right to life".
[99] THE COURT: To life, liberty and security of the person. You were being referred to section 7, madam.
[100] APPELLANT: Yes, but the right to life, liberty and security of the person . . . my liberty . . . if you include liberty, my liberty is interfered with all year round, but, for me, it is not always that that . . . I mean, I cannot argue on that point. For me, it is especially the right to life. Do I have a right for people not to kill me? Do I have the right . . . For an unborn child, we do not have a right to abortion; the right to life, is that what it means? I do not know what . . .
[101] THE COURT: Above all, that's what it is, yes.
[102] APPELLANT: Right. But that's it. But, for me, in my case, what does this law do? I cannot say . . . it does not bother me a great deal.
[103] THE COURT: No.
[104] APPELLANT: I mean it does not say much.
[105] THE COURT: No, because it guarantees minimum fundamental rights.
[106] APPELLANT: It's vague.
[107] THE COURT: I believe you have more than the minimum.
[108] APPELLANT: It's vague.
[109] THE COURT: I believe you have more than the minimum.
[110] APPELLANT: Excuse me?
[111] THE COURT: You may not have much financially, but you have more than the minimum.
[112] APPELLANT: But is the minimum defined by the poverty line?
[113] THE COURT: Huh?
[114] APPELLANT: Is it the poverty line that defines it? No?
[115] THE COURT: Well, the poverty line is defined by Statistics Canada based on a certain number of factors. But . . .
[116] APPELLANT: But it's still the government.
[117] THE COURT: Yes, yes. Well, yes.
[118] APPELLANT: I find it funny that . . . If you put yourself in my son's shoes, when he files his return, he is not troubled by the poverty line, whether it is $6,000 or $15,000, because he always has enough money left, but it's a different situation in my case.
[119] THE COURT: No, I understand, madam.
[120] APPELLANT: And it is . . .
[121] THE COURT: As I said, I can do nothing on that point.
[122] APPELLANT: But if I'm told that this act is valid since it is universal and . . . It can be explained better. I am not very good with words. When you look at the act they passed, it cannot be said that it is fair.
[123] THE COURT: No, because in this case you are referring to the Declaration of the Rights of the Child. In any case, I cannot make a connection between that and your situation.
[124] APPELLANT: It is based on human rights.
[125] THE COURT: Yes, but I cannot make a connection between that and your economic situation.
[126] APPELLANT: And you do not even have the authority, you cannot even give an opinion that might wake them up a little, and say, there are a lot of people . . .
[127] THE COURT: No. The only opinion I can give, madam, is to say, having regard to the Canadian Charter of Rights and Freedoms, that those provisions of the Income Tax Act are not valid. And I do not think that you have proven that to me today.
[128] APPELLANT: Are not valid?
[129] THE COURT: Section 7 to which you did not refer to, but I'm going to talk to you about it because that is clearly the one you may be referring to. I said that it did not cover economic rights.
[130] APPELLANT: Ah, it didn't cover economic rights?
[131] THE COURT: No. It is the right to life, liberty and security of the person, and, at present, that has been interpreted by the highest courts of the land as not covering economic rights. So what I have to do afterwards is to ask myself: is the assessment that was made for Ms. Champoux consistent with the act? Yes, it is consistent with the act because you were given all the deductions to which you were entitled.
[132] APPELLANT: Yes, I do not doubt that. I mean it is consistent with their act.
[133] THE COURT: Well yes, but . . .
[134] APPELLANT: With their act.
[135] THE COURT: . . . it is the law of the land, madam.
[136] APPELLANT: Yes, but the charters as well . . .
[137] THE COURT: That is not their act; this is the act that covers you, which covers Mr. Crépin and the people here in this room, and me as well.
[138] APPELLANT: Yes, I know. I know, I know, I know, I know. But that is what I mean, but if . . . Suppose I were to say I'm going to another court.
[139] THE COURT: You can go to another court, but there are no others that have original jurisdiction in federal tax matters.
[140] APPELLANT: To determine whether the act is fair or not fair. Do you understand? Someone who would decide whether they have the right to pass that act? Do they have the right to . . . Sometimes I think that, but that is . . . If, as I see here, of course . . . I cannot get it into my head that there is no place in this country where someone will acknowledge this. It's almost impossible.
[141] THE COURT: Well, the most direct action would be to go to Parliament. There are a lot of people in your situation who demonstrate, write to their MP, put pressure and so on to change the laws, because . . .
[142] APPELLANT: They did that before I started doing this, and . . .
[143] THE COURT: They are still doing it and . . .
[144] APPELLANT: . . . but things are no further ahead.
[145] THE COURT: . . . they aren't through, but things have moved forward a little all the same. Progress is slowly being made. The act has in fact just been amended with respect to the subject you are discussing today. The act has just been amended in this respect to re-index these amounts to take inflation into account.
[146] APPELLANT: It's recent because I learned about it . . . In any case, I thank you.
[147] THE COURT: Unfortunately, madam, I must dismiss your appeal for the reasons I have given you. Thank you.
Transcript edited at Ottawa, Canada, this 14th day of December 2001.
|
"Pierre Dussault" |
J.T.C.C.
Translation certified true
on this 21th day of March 2003.
Sophie Debbané, Revisor