IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. and Ms. McCartie are charged with a number of counts of false reporting, and one count each of tax evasion, under section 239 of the Income Tax Act.  Mr. McCartie is also charged with one count of tax evasion under section 327 of the Excise Tax Act.  

[2]           This case has an extensive procedural history:  R vs McCartie 2012 BCSC           928;  R vs McCartie 2012 BCPC 510;  R vs McCartie 2013 BCPC 150;  R vs McCartie 2013 BCPC 174;  R vs McCartie 2013 BCPC 221; R vs McCartie 2013 BCSC 1805;  R vs McCartie 2013 BCPC 289.

[3]           Relying on R vs Jarvis 2002 SCC 73 (CanLII), [2002] 3 SCR 757, Mr. & Ms. McCartie seek to exclude certain evidence which the Crown proposes to tender, on the ground that the evidence was obtained from them by compelled disclosure under the statutory audit powers of the Canada Revenue Agency (“CRA”) at a time when the predominant purpose of CRA’s enquiries was to obtain evidence for use in a criminal prosecution.  In order to rule on that issue, it would be necessary for me to determine the date upon which the predominant purpose of CRA’s enquiries changed from a civil audit to a criminal investigation (“the Key Date”).  I commenced a voir dire on that issue on July 31, 2013.  After 19 days of hearing (some of which were part-days), the “Jarvis voir dire” (as we have come to call it) is incomplete.  Mr. Preshaw, Crown counsel, informs me that I have heard all of the evidence which the Crown considers to be necessary or appropriate on the Jarvis voir dire.  Mr. & Ms. McCartie ask me to direct that further Crown witnesses be called.  They have not yet said whether there will be defence evidence on the Jarvis voir dire.

[4]           In September, 2013, Mr. & Ms. McCartie filed an application for a judicial stay of these proceedings, on the ground that they have been materially prejudiced in presenting their defence by the loss of certain notes prepared by Ms. Coles, an auditor employed by CRA, during CRA’s audit of Mr. & Ms. McCartie’s tax returns.  If they had not been lost, those notes might have assisted in the determination of the Key Date.  I will refer to that application as “the Stay Application”.

[5]           On May 22, 2014, I asked the parties to consider whether it would then be appropriate to hear and decide the Stay Application, although the Jarvis voir dire was then (and remains) incomplete.  Mr. & Ms. McCartie and Mr. Preshaw all replied that they thought that it would be useful and appropriate to hear and decide the Stay Application at that time.  I heard Mr. McCartie’s submissions on the Stay Application on the afternoon of May 22, 2014, and expected to hear the submissions of Ms. McCartie and Mr. Preshaw on May 23, 2014.  However, on the morning of May 23, 2014, Mr. & Ms. McCartie informed me that they had reconsidered, and that:

[6]           In R vs Bero [2000] OJ #4199; 2000 CanLII 16956 (ON CA), 151 CCC (3d) 545, and in R vs Buyck 2007 YKCA 11; [2007] YJ #52 @ paragraph 23, the Courts of Appeal of Ontario and the Yukon Territory expressed the view that an application for a stay of proceedings should not be heard or decided until the end of the trial.  However, that categorical statement is not supported by the seminal authority on the point: R vs La (appeal by Vu) 1997 CanLII 309 (SCC), [1997] 2 SCR 680.  The apposite passage is found in the judgment of Sopinka, J @ paragraph 27.

[7]           In this case, the issues on the Jarvis voir dire are distinct from the issues which will arise during the trial proper.  On the Jarvis voir dire, the issues are:

[8]           For the reasons given in paragraphs 6 and 7, I do not think it appropriate to continue with the Stay Application until (i) I have heard all of the evidence on the Jarvis voir dire, or (ii) Mr. & Ms. McCartie and Mr. Preshaw all agree that I have heard enough of the evidence on the Jarvis voir dire to render it appropriate to complete argument on the Stay Application and to render a decision.  However, I do not think it necessary or appropriate to defer a decision on the Stay Application until the end of the trial.

[9]           A summary of the evidence given thus far is necessary to understand this issue.

[10]        CRA maintains separate departments for civil audits and criminal investigations.  The name of the latter changed during the period in issue, having formerly been called the “Enforcement” department and latterly the “Investigations” department.  I will refer to it as the “Investigations Department”.  The Audit Department and the Investigations Department have separate offices, separate staff and separate files.

[11]        The function of the Audit Department is to conduct civil audits.  When an auditor suspects that a criminal offence has been committed, the auditor is required to report the suspicion to her team leader.  If the team leader considers it appropriate, the team leader reports the facts to the Investigations Department, which then decides whether to launch a criminal investigation.  If the Investigations Department decides to launch a criminal investigation, the Audit Department hands over its file to the Investigations Department and ceases to have any role in the case.  The sole function of the Investigations Department is to conduct criminal investigations.

[12]        Two CRA auditors, Ms. Coles and Mr. McLachlan, gave divergent evidence about CRA’s note-taking and note retention policies.  Ms. Coles said that:

[13]        Mr. McLachlan said that he would make a note on Form T-2020 whenever he met with his team leader, but that the note would not necessarily record what was said at the meeting  -  it might simply record that a meeting occurred.  Similarly, if he met with staff of the Investigations Department, and the Investigations Department decided not to launch a criminal investigation, he would note the existence, but not necessarily the substance, of the discussion, on Form T-2020.  He said that, if the Investigations Department decided to launch a criminal investigation, he would hand over his files (paper and electronic) to the Investigations Department, and would not thereafter have access to the file, with the result that he could not make any further notes on Form T-2020.

[14]        The evidence includes some examples of Mr. McLachlan’s T-2020 notes on the McCartie file.  They are consistent with his oral evidence of his note-taking practice;  i.e. they provide few or no details of the matters discussed on the occasions which are the subject of the notes.

[15]        Mr. & Ms. McCartie made access-to-information requests of CRA, seeking to obtain copies of CRA’s written policies on the subject of note-taking and note retention.  They received some documents in response to those requests, and those documents were tendered in evidence.  It is clear that the policies changed from time to time.  The evidence does not clearly establish which policies were in force at any particular time, nor whether there were different policies applicable in the Audit and Investigations Departments.

[16]        About the end of June, 2004, Mr. Jason Brown, who worked in the Audit Department, was assigned to audit the tax returns of Ms. & Mr. McCartie for the years 2002 and 2003.  Mr. Brown completed his audit in March, 2005.  As a consequence, he disallowed certain deductions which Mr. McCartie had claimed for certain expenses and issued a notice of reassessment.  Mr. McCartie appealed the re-assessment, and was successful in achieving a substantial reduction in the tax assessed by Mr. Brown.

[17]        After the appeal, Mr. McCartie made an assignment in bankruptcy.

[18]        Shortly after issuing his notice of reassessment, Mr. Brown was approached by Ms. Karen Etches and Mr. Greg Chan.  Ms. Etches was then the Assistant Director of the Investigations Department and Mr. Chan was an investigator who worked under her supervision.  Mr. Brown, Ms. Etches and Mr. Chan met.  Mr. Brown described the meeting in the following terms:

[19]        Mr. Preshaw informed me that Ms. Etches and Mr. Chan have no notes of the meeting, and profess to have no recollection of it.

[20]        Mr. Brown denied that he suspected Mr. or Ms. McCartie of fraud or tax evasion.  However, three passages in his report to his team leader, Mr. Gordon Lidster, cast some doubt on the assertion.  

[21]        Mr. Brown was transferred from the Audit Department to the Investigations Department for a period of about 6 months in mid-2007.

[22]        In November, 2007, Mr. Brown completed and submitted a document, on CRA Form T-133, entitled “Tax Lead or Project Information”, the purpose of which was to recommend a further audit of Ms. & Mr. McCartie, in relation to their tax returns for the years 2005 - 2006.  In that document, Mr. Brown said:

[23]        At the conclusion of Mr. Brown’s evidence, I was left in some doubt about the reliability of his evidence.  I found it difficult to reconcile his assertion that he did not suspect Mr. & Ms. McCartie of tax evasion with the documents quoted in paragraphs 20 and 22.  That, in turn, led me to doubt his assertion that Ms. Etches and Mr. Chan disclaimed any interest in a criminal investigation.

[24]        Mr. Brown was asked no questions about notes, note-taking or Form T-2020.  Mr. & Ms. McCartie say that they asked no questions on that subject because Mr. Brown’s T-2020 notes were not disclosed to them until after Mr. Brown had given his evidence and been excused.  I asked him no questions about note-taking because I first learned about Form T-2020 from Ms. Coles, who gave evidence after Mr. Brown.  If Ms. Coles’ evidence of CRA’s note-taking policies is correct, Mr. Brown ought to have made detailed notes, in Form T-2020, of his meeting with Ms. Etches and Mr. Chan.  Some of his T-2020 notes have since been disclosed by the Crown and tendered in evidence.  However, the notes disclosed do not include notes from the period after he issued his notice of re-assessment, and so do not span the period in which he met with Ms. Etches and Mr. Chan, and later with Ms. Coles.  No notes of those meetings have been disclosed.

[25]        The CRA auditor first assigned in response to Mr. Brown’s Form T-133 was Mr. Ian Chabot.  Mr. Chabot wrote to Mr. & Ms. McCartie on July 24, 2008, requesting certain types of documents relevant to the assessment of their income for the years 2005 - 2007.  There is no indication in the file that Mr. Chabot received any meaningful response to his enquiries, or that he made any progress in the audit.

[26]        Mr. Chabot fell ill later that summer, and Ms. Annette Coles, another CRA auditor, was assigned to replace him on August 14, 2008.  Ms. Coles does not recall whether she met with Mr. Chabot when she assumed conduct of the file.  She agrees that, in the normal course, she would meet with the preceding auditor on assuming conduct of an audit, so as to be briefed about what had been done and what remained to be done to complete the audit assignment.  However, she believes that she may not have done so in this case because Mr. Chabot was unwell.  She is simply uncertain about whether the meeting occurred or not.

[27]        Ms. Coles said that, if she had met with Mr. Chabot, she would have entered her notes of the meeting on Form T-2020.  

[28]        Ms. Coles met with Mr. Brown at an early stage of her audit of the McCartie file.  She said that she would have made detailed notes of that meeting on Form T-2020.

[29]        At some point in the chronology, CRA received an informer tip in relation to Mr. & Ms. McCartie.  Such tips are routed to the Investigations Department.  Sometimes, such tips are referred by the Investigations Department to the Audit Department.  That was done in relation to Ms. & Mr. McCartie.  When first assigned to the file, Ms. Coles attended at the office of the Investigations Department and reviewed the informer tip.  She said that she did not discuss the tip with anyone in the Investigations Department, and that she had no other communication with the Investigations Department (in relation to Ms. or Mr. McCartie) until after the McCartie file had been formally referred to the Investigations Department by Mr. McLachlan (see paragraph 43, below).

[30]        On August 25, 2008, Mr. McCartie sent a letter, entitled “Notice of Facts”, to Ms. Coles.  Although the document is confusing, it would be reasonable for the reader to infer from it that Mr. McCartie espoused the theory that “natural persons” (however defined) are not liable to pay income tax.  That theory is promoted by a number of people to whom CRA employees commonly refer as “tax protesters”.  Ms. Coles said that: (i) after she read the letter, she probably reviewed it with her team leader, Mr. Lidster, at a meeting; and (ii) they both probably concluded that Mr. & Ms. McCartie were tax protesters.  If the meeting occurred, she would have recorded the fact of the meeting, the substance of the discussion, and the conclusion reached in a T-2020 note.  However, she does not recall the meeting.

[31]        I pause for a necessary digression.  The “natural person” theory is complete nonsense.  It has no basis in law.  It is not even remotely arguable.  It is important to make that clear because some people have been persuaded by it that they are not liable to pay tax, and have suffered as a result.

[32]        Ms. Coles, accompanied by another CRA auditor, Mr. Lecznar, met with Mr. & Ms. McCartie in November, 2008.  At the meeting, Mr. & Ms. McCartie provided copies of some of the documents which Ms. Coles wanted to see.  Among those were some cancelled cheques with the names of the payees blanked out.  Mr. & Ms. McCartie declined to provide the names of the payees or unredacted copies of the cheques.  Mr. Lecznar and Ms. Coles each took handwritten notes at the meeting.  After the meeting, Mr. Lecznar gave his notes to Ms. Coles and Ms. Coles used them, along with her own, to prepare her T-2020 notes of the meeting.  She put the handwritten notes in the file.

[33]        In December, 2008, Ms. Coles met with Mr. Lidster.  They decided to exercise CRA’s statutory power to issue notices to certain financial institutions to require those institutions to provide copies of financial records pertaining to Mr. & Ms. McCartie.  Among the documents sought were unredacted copies of the cheques produced by Mr. & Ms. McCartie at their meeting with Ms. Coles and Mr. Lecznar.  Ms. Coles said that she would have made T-2020 notes of her meeting with Mr. Lidster, recording the decision to issue notices to the financial institutions and the reasons for that decision.

[34]        Ms. Coles was transferred to other duties early in 2009.  As a result, it was necessary for another auditor to be assigned to the McCartie file.  Mr. McLachlan was chosen for that assignment.  Because Ms. Coles and Mr. McLachlan belonged to different teams, a meeting or discussion between the two team leaders was necessary to effect the transfer.  If Ms. Coles’ evidence about CRA’ record-keeping policies is correct, there ought to have been a T-2020 note of that communication.  No such note has been produced.

[35]        Ms. Coles believes that she met with Mr. McLachlan in or about April, 2009 to acquaint him with the file.  She has little recollection of the meeting.  She believes that she told him of her suspicion that Mr. & Ms. McCartie were tax protesters.  She gave Mr. McLachlan her file, including all handwritten and typed notes and all of her T-2020 notes (in electronic form).  She did not make a T-2020 note of her meeting with Mr. McLachlan - she expected that he would do that.

[36]        Ms. Coles said that, when she transferred the file to Mr. McLachlan: 

[37]        After the initiation of this prosecution, Ms. Coles was asked to produce her notes, including her T-2020 notes.  She has looked for them, but cannot find them.  The last time she saw them was when she handed the file to Mr. McLachlan.  As noted below, the evidence provides very little information about how the notes came to be lost.  Mr. Preshaw says that the answer to that question may never be known.

[38]        Mr. McLachlan’s team leader, then Mr. Rick Gill, asked him to take on the McCartie audit.  Mr. McLachlan does not recall whether he met with Mr. Lidster.  He recalls meeting with Ms. Coles, but does not recall what occurred or was discussed at the meeting.  He does not recall whether he made notes of the meeting.  It was not his view that he was expected or required to make T-2020 notes of the meeting.  He recalls that he subsequently met with his team leaders (initially Mr. Gill and latterly Ms. Sally Biggar), but does not recall how many times he met with them about the McCartie audit, nor what was discussed on each occasion.  He did not make T-2020 notes of those meetings.

[39]        Mr. McLachlan was busy with other matters, and so unable to give attention to the McCartie audit for some months after receiving the file from Ms. Coles.  He thinks that he began work on the file in June, 2009.  The only information which he received was: (i) that contained in Ms. Coles’ file; (ii) responses received from financial institutions during the period April - September, 2009 in response to the requests sent out by Ms. Coles in December, 2008.  From that material, he concluded that there were “vast discrepancies” between the income reported by Mr. & Ms. McCartie for the years in question and the information provided by the financial institutions.

[40]        Mr. McLachlan had no communication with Mr. or Ms. McCartie on any matter of substance, asked them for no information and received none from them.

[41]        On March 2, 2010, Mr. McLachlan prepared a “Penalty Recommendation Report”, recommending the imposition of a penalty on Mr. McCartie under section 163(2) of the Income Tax Act.  In the Penalty Recommendation Report, Mr. McLachlan said (bold print in the original document):

[42]        Mr. McLachlan reviewed the Penalty Recommendation Report with his team leader, Ms. Sally Biggar, on March 4, 2010.  Ms. Biggar approved the report on that day.

[43]        Once a Penalty Recommendation Report is approved, a copy is sent to the Investigations Department as a matter of routine.  That was done in this case.  On March 4, 2010, Ms. Biggar signed a document entitled “Referral to Enforcement Division”, in which the following allegation was made (bold print in the original document):

[44]        Sometime after March 4, 2010, staff of the Investigations Department came to Mr. McLachlan’s office with a search warrant and seized his file.  That seemed to him to be an unusual procedure.  In the ordinary case, if a file was to be referred to the Investigations Department, the file would simply be handed over without a warrant.

[45]        Mr. & Ms. McCartie wish to explore the hypothesis that CRA targeted them for audit and prosecution because CRA believed them to be tax protesters.  They allege that CRA initiated and pursued a Canada-wide program of such targeted prosecutions, entitled “Project Fable”.  They say that records and witnesses from Project Fable are necessary to determine whether, and when, CRA targeted them.  They ask that I direct the Crown to call two other CRA employees on the Jarvis voir dire, being Ms. Cheryl Boggs, whom they allege to be the director of Project Fable, and another CRA employee, unknown to them, who was the Vancouver Island liaison with Project Fable

[46]        A second hypothesis is that Ms. Etches and Mr. Chan decided:

[47]        Mr. & Ms. McCartie ask that I direct:

[48]        Mr. Preshaw concedes that I have jurisdiction to make the orders sought, and submits that the orders are purely discretionary.  I was referred to no authority in which the principles governing the exercise of that discretion were articulated.  In my view, jurisdiction is conferred by section 699(2) of the Criminal Code, and the governing principles were stated in the following authorities:

[49]        I must exercise my discretion by reference to two distinct questions.

[50]        In considering those questions, I bear in mind an unusual feature of this case.  When they were Crown counsel, Mr. Gibson and Ms. Down told me that, because Mr. & Ms. McCartie allege a breach of their Charter rights, they carry the onus of proving the breach which they allege.  So, they said, Mr. & Ms. McCartie carry the onus of proving the Key Date, and so carry the onus of proving when the predominant purpose of CRA’s enquiries changed from civil audit to criminal investigation.  I understand Mr. Preshaw to concur with them on that point.  Mr. Gibson and Ms. Down told me that the issue is to be decided by reference to the subjective state of mind of Ms. Coles and Mr. McLachlan.  Mr. Preshaw has indicated that he advocates a more nuanced approach to the determination of CRA’s corporate purposes from time to time.  Whatever the correct approach to that question, Crown counsel have taken the position that Mr. & Ms. McCartie carry the onus of proving CRA’s motivation and intention at the relevant time(s).  I confess to some doubt on the point because of the principle that, where the evidence necessary to prove a fact is in the exclusive possession of one party, that party carries the onus of proving that fact.  However, the time has not yet come for me to decide that issue, and it may be that Crown counsel are correct.  On that premise, the onus carried by Mr. & Ms. McCarty is a formidable one, and can, as a practical matter, be discharged only by effective cross-examinations of CRA employees.  The contemporaneous notes of a witness are among the most effective tools available to the cross-examiner.

[51]        As noted in paragraph 23, there is reason to be sceptical of Mr. Brown’s evidence.  If he has notes of his meeting with Ms. Etches and Mr. Chan or of his meeting with Ms. Coles, those notes might be of significant use to the cross-examiner.  Mr. Preshaw objects on grounds of relevance.  He says that the documents which are the subject of the Jarvis voir dire were procured during the course of the audit conducted by Ms. Coles and Mr. McLachlan, not during the earlier audit conducted by Mr. Brown, and that Mr. Brown’s intentions and motives are irrelevant.  I disagree.  The audit conducted by Ms. Coles and Mr. Brown was initiated on Mr. Brown’s recommendation.  Mr. & Ms. McCartie are entitled to test the hypothesis that, during his audit, Mr. Brown came to suspect them of criminal misconduct, that he reported his suspicion to Ms. Etches, and that he and Ms. Etches decided to initiate a second audit to obtain evidence to confirm that suspicion.   On that hypothesis, Ms. Cole’s and Mr. McLachlan’s denial that they were concerned with a criminal investigation might be perfectly true.   They might have been the unwitting tools chosen by Ms. Etches and Mr. Brown.   This hypothesis demonstrates the flaw in the assertion by Mr. Gibson and Ms. Down that the only relevant state of mind is that of the auditor who compelled disclosure of the documents in question.

[52]        Mr. Preshaw objects that Mr. & Ms. McCartie have already had the opportunity to cross-examine Mr. Brown, and did not pursue the hypothesis outlined above during that cross-examination.  He says that some minimal standard of diligence is to be expected even of an unrepresented accused.  I think that the answer to that objection is that Mr. Brown’s notes (T2020 and otherwise) ought to have been disclosed to Mr. & Ms. McCartie before the trial began.  Some of his notes were disclosed, but only after Mr. Brown gave evidence, and then only those notes which relate to events before he issued his notice of reassessment.  The most important notes, if they exist, would be of his meetings with Ms. Etches and Ms. Coles, which have not yet been disclosed.  I point out that the Crown’s disclosure obligations do not depend on a request by the accused for specific documents or classes of documents.  It is the duty of the Crown to disclose relevant documents whether or not it is asked for them.  The reason is obvious - the Crown knows what it has and the accused does not.  Unless the Crown makes proactive disclosure, the accused may not know what to ask for.

[53]        I think it clear that the hypothesis under consideration could be thoroughly tested only by cross-examination of Ms. Etches and Mr. Chan, and that any notes which they may have would be of material assistance to the cross-examiner.

[54]        Mr. Lidster was the team leader for both Mr. Brown (when he worked in the Audit Department) and Ms. Coles.  If the hypothesis mentioned is correct, he may or may not have known of the scheme.  He may also be able to give useful evidence on either or both of two additional points:

[55]        The application to compel Ms. Biggar’s evidence is less compelling.  She was Mr. McLachlan’s team leader in the latter stages of his audit.  Mr. McLachlan did not use CRA’s audit powers to compel production of any documents from, or about, Mr. & Ms. McCartie.  He received documents from the financial institutions, but only because Ms. Coles and Mr. Lidster had decided to compel production of those documents, and had issued notices to compel production, before Mr. McLachlan had any role in the audit.  He neither compelled nor received any relevant information from Mr. or Ms. McCartie.  The essence of the complaint on the Jarvis voir dire is the allegation that CRA used its audit powers to compel production of evidence for use in a criminal prosecution.  If that was done, it was done (wittingly or unwittingly) by Ms. Coles and Mr. Lidster, not by Mr. McLachlan or by Ms. Biggar.

[56]        I do not think that a sufficient basis has been shown to compel Mr. Robbie to give evidence.  As far as I can tell from the limited information I was given, the circumstances were these.  As a result of Mr. Brown’s reassessment, and subject to an appeal which was partly successful, Mr. McCartie owed CRA some money.  Mr. Robbie was assigned to collect it.  He was unable to find any assets to seize.  Nothing in that sequence of events gives rise to a plausible suspicion that anyone at CRA was then interested in a criminal prosecution.  The word “investigation” has different meanings in different contexts.  In this context, its use does not lead me to think it likely that Mr. Robbie is able to give material evidence.

[57]        Mr. Gibson’s letter contains the only information provided to me about how Ms. Coles’ notes came to be lost.  The significance of that information depends on the correct understanding of R vs La (appeal by Wu).  At paragraph 20 of his judgment in that case, Sopinka, J said:

[58]        I put to Mr. Preshaw the following propositions:

[59]        Mr. Preshaw objected to the admissibility of Mr. Gibson’s letter.  I was surprised by that, and said so.  In a civil case, a letter written by counsel to an opposing party, in which assertions of relevant fact are made, is admissible in evidence as an admission by the author’s client, if tendered by a party opposed in interest.  If the authenticity of the document is disputed, it may be necessary to call the author to prove the document, but the document itself is evidence.  Mr. Preshaw says that a different rule applies to letters written by Crown counsel to the accused in a criminal case.  He cites no authority for that proposition, but assures me, on the strength of his experience as criminal counsel, that it is so.  I have struggled, and failed, to discern any principled basis for the distinction asserted by Mr. Preshaw.  However, I am prepared to address the present question (whether Mr. Gibson should be compelled to give evidence) on the assumption that Mr. Preshaw is correct.

[60]        Whether or not Mr. Gibson’s letter is admissible in evidence, it is insufficient, standing alone, to support a conclusion, one way or another, on the question whether Ms. Coles notes were deliberately destroyed, lost through unacceptable negligence, lost through acceptable negligence or lost by innocent inadvertence.  The logical starting point for that enquiry would be a cross-examination of Mr. Gibson to identify his sources of information and to determine exactly what information he was given.

[61]        Mr. Preshaw submits that it would be inappropriate to require Crown counsel to submit to cross-examination.  It has been recognized in many cases that difficulties arise when counsel are asked to give evidence.  If counsel give evidence, care must be taken to ensure that counsel are not compelled to disclose privileged information.  In this case, it would be necessary to consider whether CRA has waived any privilege which might otherwise exist by the disclosure made in Mr. Gibson’s letter.  Difficulties sometimes arise when counsel propose to continue to conduct the case, as counsel, after giving evidence.  That may leave counsel in the embarrassing position of arguing, as counsel, in support of their own credibility, as witnesses.  For that reason, it has often been said that it is unseemly for counsel to continue to act as counsel after giving evidence:  New West Construction Co Ltd vs Canada 1980 CanLII 4239 (FC), [1981] 1 FC 583.  However: (i) that issue does not arise here - Mr. Gibson has withdrawn as Crown counsel and been replaced by Mr. Preshaw; (ii) in any event, that concern is subordinate to, and must yield to, the right of a party to compel the evidence of any witness who has relevant evidence to give:  Phoenix vs Metcalfe 1974 CanLII 1704 (BC CA), [1974] 5 WWR 661; 1974 CanLII 1187 (BC CA), 48 DLR (3d) 631.

[62]        It is apparent that Mr. Gibson’s evidence would only be the starting point in a protracted enquiry to determine how and when Ms. Coles’ notes were lost.  It would be prudent to avoid that enquiry if that is possible.  If I am correct on the issue discussed in paragraph 58, an absence of evidence on the question would mandate a conclusion that the loss of the notes was an infringement of Mr. & Ms. McCartie’s rights under section 7 of the Charter.  If that is right, they don’t need the evidence of Mr. Gibson.  However, if I am wrong, and Mr. Preshaw is right, on that issue, then the enquiry which would begin with Mr. Gibson’s evidence is necessary.  So, I should decide the issue discussed in paragraph 58 before I decide whether to compel Mr. Gibson to give evidence.  The parties should be prepared to argue that issue as the first order of business when the case reconvenes.

[63]        I am not prepared to issue subpoenas in relation to Project Fable on the basis of the information which I now have.  However, I think that the Crown has an existing disclosure obligation in relation to this issue which may have been overlooked.  Evidence that Mr. or Ms. McCartie was a target of Project Fable before Ms. Coles issued her requirements for documents to the financial institutions would be relevant to the issues on the Jarvis voir dire.  If that were true, there would be likely to be references, by name, to Mr. & Ms. McCartie in documents created by the Project Fable team prior to January, 2009.  If such documents exist:

[64]        Subject to any proper claim of privilege, CRA is to produce to Mr. & Ms. McCartie:

[65]        If necessary, subpoenas will be issued for Mr. Lidster, Ms. Etches, Mr. Chan and Mr. Brown.  I suspect that subpoenas will not be necessary because Mr. Preshaw indicated that CRA would make available any witnesses whom I direct to be called.

[66]        Subpoenas will not be issued for Ms. Biggar and Mr. Robbie.  I do not consider them to be necessary witnesses.

[67]        A subpoena will not be issued for Mr. Gibson at this time.  When the case next comes on for hearing, I will hear submissions on the issue identified in paragraph 58, and will decide that issue.  Depending on that decision, a subpoena may be issued for Mr. Gibson.