Here is an exceptional case where evidence was excluded from a criminal prosecution because CRA could not explain the loss of its auditor’s notes and the investigators did not make notes. The accused tax protesters had argued that the auditor’s notes might have shown that the audit was being used unlawfully to conduct a criminal investigation. If so, the fruits of that investigation should be excluded.
“[5] Ms. Coles acknowledged that her recollection of her meetings with other CRA employees was vague. Her notes may have contained a record of comments made by other CRA employees respecting suspicion of tax evasion on the part of Mr. or Ms. McCartie or the intentions of those other CRA employees respecting prosecution for such an offence. Of course, one could not say that with confidence without first seeing the notes. I observe that, at common law, an out-of-court statement by a person of that person’s motivation or intention is admissible as evidence of that person’s motivation or intention, if such motivation or intention is a fact in issue and the statement is tendered by a party adverse in interest. Such out-of-court statements by other CRA employees could be proven by Ms. Coles’ notes.” [2015 BCPC 66]
“THE HYPOTHESIS
“[15] Ms. Coles said that, when she issued the demands to the banks, she had no interest in a criminal investigation. She said that her job was to conduct civil audits of tax returns, and that was what she did in relation to Mr. & Ms. McCartie. Mr. & Ms. McCartie tell me that they do not challenge Ms. Coles’ veracity. However, they do advance the following hypothesis:
a. In 2005, Mr. Brown, Ms. Etches and Mr. Chan formed the opinion that Mr. & Ms. McCartie were guilty of tax evasion, but that CRA lacked the evidence to support a prosecution.
b. Mr. Brown recommended a further audit in 2007 for the purpose of gathering the necessary evidence.
c. Ms. Coles was the unwitting tool of the Investigations Department, and was used by the Investigations Department to procure the evidence from the banks.” [2015 BCPC 69]
So in this case of tax protesters (who argued that as”natural persons” they were not obliged to pay tax), the accused may well escape conviction, despite the fact that the court also reasoned that CRA officers are not required to keep notes:
“[53] I conclude that the CRA staff were under no legal obligation to make notes.” [2015 BCPC 69]
Part of the reason for this conclusion was the court’s decision that the investigators in this case should have kept notes themselves:
[55] These are different questions from the question whether CRA staff had a legal duty to take notes. As I have said, I do not think that they did. … There may be cases in which a fair trial is precluded by some unfortunate accident which is the fault of no one. In such a case, it may be that an unfair trial cannot be allowed to proceed, subject always to the balancing of public and private interests described in Thomson Newspapers. In this case, if it would have been reasonable to expect Mr. Brown, Ms. Etches and Mr. Chan [the CRA investigators] to make notes, and they did not, and the result is an unfair trial, the consequence may be that the trial cannot proceed. [2015 BCPC 69]
See R. v. McCartie and McCartie, 2015 BCPC 66 and R. v. McCartie and McCartie, 2015 BCPC 69