Dave Lindsay Wednesday, May 27, 2009

For those still unfortunately 'in the system', there is still hope!!

Congratulations to Pat Pugsley - the most recent victor here in B.C. against CRA.

Pat is a strong supporter of freedom and knows of the criminality of the tax and monetary

systems in this land.

Pat was charged with 8x counts of failing to comply with a notice to file an income tax return.

I was agent for Pat 'behind the scenes', as the courts, because pursuant to the new s. 802.1 of the Criminal

Code where Parliament has as much banned all agents across Canada in summary conviction matters now, the trial judge refused to permit me to actually appear at court. So I assisted drafting the questions for Pat and his trial and appeal 'arguments' if I may use that term, without prejudice.

Previously, the courts in B.C. have continuously ruled in R v Layne, R v Naudi (B.C.S.C.) R v Lutes (B.C.P.C.), and R v Bohemier in Man. Q.B., that hearsay evidence is not permitted in these types of offences and that CRA officials, who have repeatedly evidenced that their primary search tool is the SIN to locate filed income tax returns, must have personal knowledge that the SIN is that of the accused.

But how can they when this number is created by Human Resources Canada (HRC) - a very different department?

CRA field officers who lay these charges, must go through at least 2 and frequently up to 4 other people to finally obtain a copy of the SIN application form, which itself can be 20-40 or more years old!!!

So even if this application could be entered into evidence, (which it cannot) how can the information thereon be linked to you???

NOTE: I pause to note in Nelson Meikle's case here in Kelowna, CRA official Dwayne Sol evidenced in his affidavit that he provided a 'true, certified copy' of the alleged SIN application form of Nelson. He later admitted that this was false as he never did certify it and because it was at least, in that case, triple hearsay!!!

This can only be done if YOU COMMUNICATE WITH CRA AND SOMEHOW ADMIT THAT IT IS YOUR NUMBER - either by referencing it in some written communication or orally in discussions with CRA officials. If you don't admit that this number is yours - or that you are using it or attached to it or however you wish to phrase the linkage - then CRA must prove it. Unfortunately, this linkage has been established by one's own admission in their correspondence in at least one other case.

LESSON - don't talk to CRA - don't admit nothing to CRA, orally or in writing. Including your name and/or SIN and/or address and/or birthdate nor any other information. They will use this against you.

Better yet, the Crown must prove this element now in chief - ie: they must prove that this SIN is actually yours in their direct evidence and is not dependant upon whether you raise the issue or not. This is, as you will see, problematic.

But CRA and Crown Prosecutors continually avoid raising this issue and most lawyers do not know of it or are on the take.

Here in B.C. a recent case of R v Larsen was used by judges in CLEAR's Chairman, Nelson Meikle's case and others, for judges to claim that suddenly the law has "been changed" and that CRA no longer had to do this and could use hearsay as well. This was the cause of Pat's conviction before Judge Burdett in Penticton too. The Provincial Court judges were trying fevershishly to change the law on their own because they know what is going to happen.

We appealed Pat's case to the Supreme Court of B.C. Although a judgment was rendered in his favour last year in the fall, the Crown immediately filed an application for leave (permission) to appeal to the Court of Appeal. This sends the message that the Crown is now worried - they do not make such applications unless they fear a precedential outcome.

Pat's case has sent a strong message to the lower courts who were trying to circuituously make life easier for the Crown - the Crown must adduce personal knowledge of this SIN and that it is that of the defendant in their case in chief.

Para. 47 Judgment of Justice Cullen:

"In the present case, on the other hand, Mr. Raybould was unable to say where the social insurance number he relied on came from, and there is no evidence that Mr. Raybould obtained evidence that linked the appellant to the 'person whose records he was searching.' "

CRA has tried to get around this by claiming that their officer linked this number to the defendant by way of "cross referencing" the SIN to the address, DOB and name. This was rejected in R v Lutes and other cases. Of course, all this information on the CRA database has also been confirmed by CRA officials to be hearsay as well; the CRA official working on the case has no idea who entered this information nor whose it is - or if it is even correct. It is hearsay chasing hearsay.

Because of the Crown's appeal, we were loathe to go public however, we have just learned that the Crown filed a Notice of Abandonment of their appeal some 6 months ago on December 19, 2008 - final realization by the Crown that it has lost on this issue. However, CRA never informed Pat of this at any time, leading Pat to believe of course that this case was still ongoing. Only upon my demand to the Court of Appeal for a show cause hearing was it made known to us that the Crown has abandoned their appeal.

As a result the following is now settled law in B.C. and Manitoba, and likely throughout Canada in s. 238 (1) failing to file income tax return charges, at least for those who still are unfortunately in the system:

1. CRA cannot utilize hearsay and the judges in these cases are required to construe the law strictly - this is more significant when you read s. 244 of the Income Tax Act which has basically stripped all of a defendant's procedural criminal and constitutional rights from him.

2. The Crown must lead CRA officials to evidence in their case to the court, that the SIN which CRA officials have repeatedly evidenced in court is the primary searching tool, is that of the defendant and that the CRA official has personal knowledge that this SIN is correct and belongs to the defendant. You do not have to prove that the SIN is not yours. If CRA fails to do this, then after your cross examination of the witness, demand a no evidence motion to dismiss the charges.

NOTE: Considering this number 'belongs' (again if I may use that term) to HRC, this can only be done, at best, by now being required to subpoena an official of HRC into court to prove this. But again, how is he going to be able to link the number to the 'man' standing in court when he has no knowledge who this man is and has never met nor corresponded with him?

3. Cross referencing to other hearsay information in the CRA database such as an address or DOB is not sufficient. In R v Lutes for example, CRA admittedly went to his home, as they did in Pat's case to serve the documents.

This makes obtaining convictions substantially more difficult, time consuming and costly for the Crown and CRA.

Hurray for freedom!!!!!

Remember - never admit anything to CRA at any time - they will use all of this against you in court. In the absence of your admissions, they will have a much more difficult time now to prove this!

We are starting to build our own victories one by one, even for those 'in the system' - providing more inspiration to all of us. Let's hope we can make it so difficult to prosecute us that they simply back out when they see us coming!!!!

Remembering also, that all talk of positive change is futile as long as usury and the present money system is in place. Our goal must be to eliminate the problem at source - usury. This starts with the adherence to moral and ethics which we subscribe to and must put into practice - just say NO!

Just a warning note to all:

Before anyone thinks of attempting to use the previous victory in court, remember you must know what you are doing.

You must know and have read the previous cases, you must understand them and be able to know how to present them and you must be able to answer questions the Crown and Court will ask you.

You must know what questions to ask the witness, and how to respond if they are lying.

We have had a couple of cases where people attempted to use this at court with disastrous (though fortunately not permanently fatal) results. Our most recent victory in Pugsley has ensured I believe that we are correct and the previous attempts in error are not precedent setting. Phew!!!

Attempts to just run into court and throw a couple of cases on the table could and likely will lead to problems.

It definitely and readily can be done, but there is much to learn to so do. Similar to beating radar, it can easily be done for those who have read up on the issue and are prepared even before going into court. Those who have not prepared, even if they know the general idea, will likely fail.

Please ensure that before taking any action, you have talked with people and know full well what you are doing. YOUR case can affect thousands of others and we all have a responsibility to each other to ensure that we do our homework.

In freedom I remain