Jewers, J.:—The accused (herein the"applicant") applies under subsection 24(1) of the Charter for a stay of proceedings with respect to charges of income tax evasion against him. The ground of the application is alleged undue delay in the laying of the charges affecting his liberty and security of the person guaranteed by section 7 of the Charter.
In March 1987, income tax investigators commenced an inquiry into the tax returns of the applicant for 1986 and prior taxation years. The investigation was lengthy and complex, involving the examination of much documentation, and the interviewing of many witnesses.
On May 19,1988 the Minister of National Revenue assessed the applicant tax of $79,788.14 and penalties and interest of $69,315.64 for a total of $149,103.78 respecting the tax years in question.
On November 24, 1988, the Director of Taxation approved a recommendation of further investigation for purposes of prosecution. On April 25, 1990, the charges in question were laid.
The investigation continued right up until the time the charges were laid. In particular, between June and December 1989, the time was spent in analyzing, reviewing and evaluating approximately 3,500 pieces of financial information and documentation, which the investigators had thus far gathered.
Counsel for the applicant submitted that, as evidenced by the assessment, the prosecution had enough evidence to lay the charges by May 19, 1988, the date of the assessment, and that charges should have been laid then—not almost two years later. However, I agree with the submission of Crown counsel that the evidence needed to make a tax assessment is not of the same high standard required for a criminal prosecution, and the fact that the assessment was made did not necessarily mean that enough evidence had been gathered to launch a criminal prosecution.
The affidavit evidence presented to the court does not make it clear when the prosecution did have sufficient evidence to lay the charges, or, indeed, what would constitute sufficient evidence in the context of this case.
What is clear is that between the date of the assessment and the date the charges were laid, the prosecution actually continued its investigation. By November 1988, all that was authorized was the continuation of the investigation for purposes of prosecution, and not the laying of charges. It is reasonable to infer that the investigators believed that further work was needed to get enough evidence for the successful prosecution of the case. (Certainly, a lot had to be done just to collate the material already gathered and prepare a prosecution report.) It is also reasonable to infer that the investigators were acting in good faith and using their best judgment as to what further research had to be carried out to perfect their case. I don't know whether their additional work was really necessary, or not, or whether they could as easily have proceeded in May 1988 as in April 1990, but I don't think it is generally the business of the court to second guess investigative authorities. I adopt the words of Dubin, J.A., (as he then was) in R. v. Young (1984), 46 O.R. (2d) 520; 13
C.C.C. (3d) 1 (C.A.), at 551:
Courts cannot undertake the supervision of the operation or the efficiency of police departments and to be asked to determine whether the police proceeded as expeditiously as they should have in any given case.
Furthermore, to compel the police or Crown counsel to institute proceedings before they have reason to believe that they will be able to establish the accused's guilt beyond a reasonable doubt would, . . . have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.
The authorities are clear that the court may grant a stay where compelling an accused to stand trial would amount to an abusive process through oppres sive or vexatious proceedings; but that delay in laying charges in itself is not a basis for a stay of process, even where it results in the impairment of the ability to make full answer and defence; although an exception would be where the delay was for the ulterior purpose of depriving an accused of the opportunity to make full answer and defence. (See R. v. Young, supra, page 551.)
In this case there is no reason to stay the proceedings. The investigation was continuing, and the case was being worked on until very shortly before charges were laid. There was no delay. Even if the interval between the assessment and the laying of charges could be characterized as a delay, it was not such as to constitute an abuse: There was purposeful activity, conducted in good faith, with a view to readying the case for prosecution, and not for any ulterior motive.
The applicant has been, and is, in custody on unrelated matters, and the laying of the charges has had the effect of delaying the applicant's potential transfer to a minimum security setting, but this is simply an unfortunate consequence of a perfectly valid process. There was no suggestion that the applicant's ability to make full answer and defence to the charges was prejudiced in anyway.
The application is dismissed.
Application dismissed.