Retroactive Legislation, Errors in Legality and Fraudulent Backdating of our Criminal Records Act Pr

For citizens facing serious criminal charges, simply put, ensure that the provisions stipulated in the Criminal Code of Canada were in place at the time you may have committed the offense. This is based on the fact that a large proportion of individuals have been charged with criminal offenses which were not legislated at the time the offenses occurred. According to CBC, this has significantly obstructed the process of judicial fairness and impeded the Canadian legal system with erroneous, trumped-up charges fraught with errors in legality.

One example includes the Criminal Records Act which was said to be legislated in 1985, unfortunately, the Criminal Records Act only existed post de facto of Bill C-10 which occurred in 2012. Individuals who have committed offenses prior to Bill C-10, namely the provisions for record suspensions may have had to wait for a longer duration (wait time) then the eligibility requirements set forth in the retroactive legislation. In this particular instance, Bill C-10 increased the duration in which someone could apply for a pardon from 5 years to 10 years. Recently in R. v. Charron (2017), those retroactive changes to criminal pardons were found to be unconstitutional in Superior Court. In addition, they were found to be in violation of the Canadian Charter of Rights and amendments to the omnibus crime bill have been taking place still to this day.

In another case centered on retroactive legislation, the Supreme Court of Canada ruled in Attorney General v. Whaling (2014) that retroactive legislation means you follow the laws in place at the time your offenses occurred, if the laws contained a provision in the Conditional Release Act when you were charged (release in 1/6th your sentence), then repealing the Act once you were sentenced before the crime bill passed in parliament would result in double jeopardy (for an accused who had his or her eligibility for APR denied).

Another case in our Ontario Court of Appeals in which retroactive legislation was used to determine the outcome of a decision is in Proctor & Gamble v. the Minister of Finance. In this particular case, the appellant (Proctor & Gamble) paid taxes to another company (unknown) for ‘wooden pallets’, the respondent (Minister of Finance) attempted to collect taxes on those pallets based on an assumption that they fell under the definition of ‘returnable container’ (for purposes of the Retail Sales Tax Act 1990 RSO). The appellant paid taxes for the specific years, but subsequently applied for refunds, since the payment was for leased equipment from another company. The decision was upheld in the low courts (no sales taxes were owed on the pallets i.e. Rule 14 -Rules of Civil Procedure), however, appealed by the respondent in the Court of Appeals. This was based on the fact that these disallowances fell under a broad definition of ‘returnable container’. Ultimately, the decision in the low courts was upheld by the Court of Appeals and essentially allowed the respondent to bypass those taxes owed to the Minister of Finance respectively.

"Ultimately, the decision in the low courts was upheld by the Court of Appeals and essentially allowed the respondent to bypass those taxes owed to the Minister of Finance"

In this particular case, the Minister of Finance in conjunction with the federal government amended the Retail Sales Tax Act ‘post de facto’ of the appellant’s tax years and retroactively broadened the definition of "returnable containers". After doing so, the Minister of Finance moved on the taxpayer's assessment and the retroactive amendment was applied to the taxpayer. It is important to note from this particular decision that retroactive legislation; meaning new laws cannot be used in prior cases where the laws did not exist.

The Supreme Court of Canada decision in R. v. Markevich ruled that the collection of a tax debt past 6 years contravened the legislation in the Ontario Limitations Act. In this particular case, the CRA attempted to collect a tax debt after the 6 year limitation period expired. In a unanimous decision, the Supreme Court of Canada found that the taxpayer was not responsible for his or her tax debt after the 6 year limitation period expired. As a response, the Government of Canada introduced subsection 221(3) of the Income Tax Act thru parliament increasing the limitations period from 6 years (ruled in the R. v. Markevich decision) to 10 Years. This meant that the CRA may not commence or continue an action to collect a tax debt after the end of the limitation period.

A Niagara Falls- based business owner Lenard Ro, who has previously owned a nightclub on Richmond St. W and co-owned 4 clothing stores, along with several online start-ups has been given tax debt which erroneously overlooked the retroactive legislation in R. v. Markevich. According to the business owner, he was given a tax debt by the CRA for an undisclosed amount of taxes owing from 20 years ago and is currently in the process of disputing the notice of assessment he has received. Lenard Ro indicates “I’ve contested the CRA’s notice of assessment about 10 years ago and had the tax debt reduced to 0, only to receive another notice of assessment 10 years later”. He further states “the retroactive limitations of 6 years definitively apply to this case, since my tax debt was accumulated prior to the limitations increasing from 6 years to 10 years respectively. Nonetheless, I’ve already paid the government my tax proportion in 2004”.

Recently in Toronto, Ontario, Canada, legal fraudsters have begun to backdate various provisions in the Criminal Code, along with various Provincial Acts in our legislation. A significant proportion of the laws in various legal matters have not been legislated thru Parliament but by these same mentally deranged, fraudsters who have taken it upon themselves to bypass the legal process by diminishing ambiguity with fraudulent and deceptive laws.

"by these same mentally deranged, fraudsters who have taken it upon themselves to bypass the legal process by diminishing ambiguity with fraudulent and deceptive laws"

In this particular instance, ex-police officers shadowing as legal representatives and court-appointed administration have backdated various provision in the Criminal Code. This includes the introduction of laws which essentially did not exist in the past. More importantly, these laws were not passed thru Parliament (via: Bills or Acts which are then voted upon by your legal representative). If a law was not legislated or codified in the Criminal Code for that matter, then applying the new law retroactivity would easily result in a Charter of Rights violation and an accused would be subjected to cruel and unusual punishments respectively.

A recent example would be the legalization of recreational marijuana on July 1, 2018. Prior to July 1, 2018, the Canadian public must follow the provisions in the Canadian Criminal Code, namely smoking marijuana may result in a criminal offense. After July 1, 2018, you are allowed to smoke marijuana recreationally without charge. If an individual is charged after July 1, 2018, the charges would likely be dropped based on the new legislation, since retroactively applying the old Criminal Code provisions making marijuana illegal would violate your Charter of Rights and bring the administration of justice in disrepute.

Deficiencies within the law and inaccurate interpretations of the retroactive legislation has resulted in a significant backlog of cases which have clogged our court system and also resulted in ‘presumptively unreasonable’ delay times for an accused facing charges.

By: Rudolph Watts LLB – Editor of Anti-Crime Association