John Giagnocavo (Applicant) v. Her Majesty the Queen (Respondent)
Published in: (1995), 95 Dominion Tax Cases 5650
Federal Court-Trial Division
October 3, 1995
(Court File No. T-1836-95.)
On August 30, 1995, the taxpayer applied to the Federal Court- Trial Division for an order declaring that the Income Tax Act ('the Act') is unconstitutional and ultra vires the Parliament of Canada, that the institution of criminal proceedings is unconstitutional, that the Act is an enslavement statute contrary to various sections of the Charter, that by reason of the principles in the Charter the Government is estopped from holding money over the rights of an individual, and that certain warrants and information in relation to himself and his wife be quashed. On September 18, 1995, in response to an application by the Crown, the Associate Senior Prothonotary ordered the taxpayer's Statement of Claim to be struck out in its entirety as either revealing no cause of action, or as being beyond the jurisdiction of the Court. Alleging that the Associate Senior Prothonotary lacked jurisdiction, and that his Order was plainly wrong, the taxpayer appealed to a single judge of the Federal Court-Trial Division.
Held: The taxpayer's appeal was dismissed. The position being taken by the taxpayer, although under the umbrella of judicial proceedings, was in fact a policy position over which courts and their judges had no jurisdiction. In addition, the taxpayer's challenge here was not in respect of an individual section of the Act. He was seeking to have the whole statute set aside by reason of what might be termed the paramountcy of subsection 92(2) of the Constitution Act, 1867. The Income Tax Act, however, has been found to be well within the competence of Parliament under section 91 of the Constitution, and any challenge at this time is now futile. Therefore, the Associate Senior Prothonotary was on good grounds in striking the taxpayer's Statement of Claim.
J. Giagnocavo, the applicant, in person
P. Hajececk for the respondent
Before: Joyal, J.
Joyal, J.: On August 30, 1995, the applicant in this matter prayed the Court to issue a declaratory judgment to the following effect:
On September 5, 1995, an application by the same applicant to quash criminal proceedings and to seek other relief was dismissed by my colleague, Gibson, J.
On September 13, 1995, the respondent Crown filed in this Court an application, pursuant to Rule 419, for an Order striking out the whole of the applicant's statement of claim or otherwise ordering that the pleadings be amended.
This application came to be heard before the learned Associate Senior Prothonotary on September 18, 1995, who ordered: 'the applicant's statement of claim is struck out in its entirety as either revealing no cause of action or as being beyond the jurisdiction of this Court, and the action is dismissed'.
In turn, the applicant filed an appeal from the foregoing decision, which appeal was set to be heard in Toronto, Ontario, on October 2, 1995. The grounds alleged in the applicant's appeal were that the Associate Senior Prothonotary lacked jurisdiction, that the Order of Gibson, J. had been appealed to the Federal Court of Appeal, and that in any event, the Order appealed from was plainly wrong.
At the hearing of the aforesaid appeal, the Court had the privilege of hearing extensive argument by the applicant, most of which was centered on his earnest and deeply-felt belief that the Act is unconstitutional and beyond the powers of Parliament, pursuant to section 91(3) of the Constitution Act, 1967 (the 'Constitution').
As the Court understood applicant's argument, there is a dichotomy between the Act, which permits the legal authorities of the country to forcefully take away funds from citizens and redistribute them to others, and the manifest purpose of the Charter, which is founded on the principle of the supremacy of God and the rule of law. Taxing statutes, according to the applicant, only create involuntary servitude and are reminiscent of acts of war crimes.
No doubt, the applicant is absolutely convinced of his opinion and perfectly satisfied that his conclusions are unassailable. From a philosophical point of view, a case can no doubt be made that the impugned statute is cruel and inhuman, that it is a travesty of recognized moral values, that it constitutes an intrusion of the state not only in the bedrooms of the nation, as was said in another case, but in its piggy-banks as well. One could also say that a good number of citizens share the applicant's view in these matters, and would ring bells and dance in the streets if ever there were liberated from the unconscionable burden of taxation.
The basic difficulty, however, is that the position taken by the applicant, although under the umbrella of judicial proceedings, is in fact a policy position over which courts and their judges have no jurisdiction. Policy issues are for legislators, and judicial issues only for judges. It is noted that the challenge here to the Act is not in respect of an individual or discrete section thereof, which might be challenged under the Charter, but seeks to have the whole statute set aside by reason of what might be termed the paramountcy of section 92(2) of the Constitution. Courts have been faced with many such challenges, few of which have been successful. Courts, like so many other human institutions, have rules; one of them is that the rule of law is paramount, and another is that jurisprudence must be respected.
As is well-noted in Mueller (R.G.) v. Canada, 1 C.T.C. 143, in Re, Goods and Services Tax, 2 S.C.R. 445, and in Winterhaven Stables Ltd. v. A.G. of Canada,1 C.T.C. 16, the applicant's arguments before me cannot meet with a favourable response. The Act has been found to be well within the competence of Parliament under section 91 of the Constitution, and any challenge at this time is now futile. This means, in effect, that the Senior Associate Prothonotary was on good grounds in striking the applicant's claim on September 18, 1995, and any appeal from his decision in that respect cannot be sustained.
The applicant's appeal is therefore dismissed, with costs if demanded.