The taxpayer did not collect GST on the legal fees charged to some of its clients, who were defending against criminal charges. Paris J. found that the defendants' Charter rights under s. 10(b) and 11(d) to legal counsel did not entail a right to be exempt from GST. As a law of general application, s. 165 of the Excise Tax Act (the GST charging provision) did not have a purpose of impeding a defendant's right to counsel.
If s. 165 were unconstitutional in its effects, the onus would be on the appellant to provide an "evidentiary foundation" to show such effects. Generally, the appellant must show actual unconstitutional effects. If actual facts are not available to the appellant, the appellant may use hypotheticals, which would be accepted as true "because they could commonly arise in day-to-day life or are indisputable on their face." Finally, the taxpayer is under no such burden if the impugned legislation is unconstitutional on its face (paras. 54-56).
Paris J. found that, in the present case, the taxpayer should not be relieved of the burden of presenting "actual facts." This was irrelevant, however, because the taxpayer had failed to meet either the factual burden or the hypothetical one. The GST remittance assessments against the taxpayer were confirmed.