Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Criminal law - What is the standard of review applicable to a trial judge’s ruling, pursuant to the analysis established in R. v. Jarvis [2002] 3 S.C.R. 757, concerning whether a given inquiry is auditorial or investigatory in nature? - In view of the applicable standard of review, did the trial judge err in finding that CRA official Jorge Liviero was engaged in an investigation so his use of the inspection and requirement powers violated the Canadian Charter of Rights and Freedoms? - Whether this Court should decline to exercise its discretion to hear this appeal because the issues raised by the Appellants are moot, as the prosecution has been stayed by the Crown.

The Appellants, Thomas Tiffin and F. Marc Holterman, were the subjects of a complaint to the Royal Canadian Mounted Police (“RCMP”), which alleged that they had been involved in a complex scheme to defraud an American citizen of the sum of $100,000 (U.S.) through a “high yield investment” scam. The RCMP decided not to pursue a criminal investigation and referred the matter to the Special Enforcement Program (“SEP”), a branch of the Canada Revenue Agency (the “CRA”).

After the evidence was gathered by the CRA, the Appellants were charged with the offences of making false or deceptive statements in their tax returns, tax evasion, and fraud. The Supreme Court of Canada, in the meantime, released its decision in Jarvis, which holds that CRA officials must cease using their inspection and requirement powers once the predominant purpose of their inquiry shifts from the determination of tax liability to the determination of penal liability.

At the outset of their trial, the Appellants brought an application under s. 24(2) of the Charter to exclude all of the evidence gathered by the CRA. Relying on Jarvis, the Appellants argued that the audit of Holterman had actually been a criminal investigation from the outset and that the search warrants should be quashed.

The trial judge held that the use of the inspection and requirement powers by the auditor violated s. 8 of the Charter. He acquitted the Appellants and also quashed the search warrants and ordered the Crown to pay costs to Tiffin. On appeal, the Court of Appeal allowed the appeal, set aside the order of costs against the Crown, set aside the acquittals and ordered a new trial at which the information obtained by Fish and Liviero would be treated in accordance with the reasons of the court. The court agreed that it should defer to the trial judge’s decision to exclude the information gathered by Fish. LaForme J.A., dissenting in part, held that the trial judge did not err in excluding the evidence of Fish and Liviero and would have dismissed the appeal from the acquittals.