Published: October 10, 2024
Introduction – A taxpayer sought an exemption from paying income tax due to abortion law
In August 2024, the Supreme Court of Canada (SCC) denied the application for leave to appeal to the SCC by the appellant taxpayer Vito Norejko. The taxpayer previously appealed, unsuccessfully, to the Tax Court of Canada (TCC) and then to the Federal Court of Appeal (FCA). In the appeals, the taxpayer sought an exemption from paying federal and provincial personal income taxes on the basis that the tax payments were used to finance abortion, a procedure that was in contrary to his conscience and religious belief. The appellant elaborated that a fetus in the womb of the mother is an enwombed child and hence an abortion is the killing of a human being, an act that is naturally abhorrent to God and man alike. In both instances, the appeals were quashed.
Abortion law in Canada: past and present
To understand this case, it is necessary to understand the development of abortion law in Canada, leading to the taxpayer’s appeal to the TCC in 1988.
Abortion was formally banned in Canada in 1869 and remained illegal for the next 100 years. In 1969, a bill to amend the Criminal Code was passed in the Parliament to partially decriminalize abortion, whereby abortions performed in a hospital with the approval of that hospital’s three-doctor therapeutic abortion committee shall be permitted. The federal abortion law was challenged twice by Doctor Morgentaler, who operated private abortion clinics across the country and stated publicly that he had performed more than 5,000 abortions without the prerequisite approval of the three-doctor committees. Finally, in R. v. Morgentaler, a landmark decision in 1988, the SCC ruled in a 5-2 decision that the abortion law was in contrary to section 7 of the Canadian Charter of Rights and Freedom and thus unconstitutional. As a result, abortions are now legally provided on request for any reason, confidential, and publicly funded.
Conscientious objection in Canada: past and present
The appellant Vito Norejko’s request to be exempted from paying taxes centred on the argument that the legalization of abortion was intolerable to him and violated his fundamental freedom of conscience and religion granted by the Canadian Charter of Rights and Freedom. This is referred to as a conscientious objector.
Traditionally, conscientious objectors have been used for men who refuse to enlist in the military, because killing, as an unavoidable consequence of a war effort, was repugnant to their conscience and religion. But in the course of the twentieth century, and especially after the Second World War, its use has broadened to include anyone, men and women, who objected to any support for war, whether it was refusing to serve in the military or refusing to pay taxes, as well as opposed to other governmental policies, whether with personal or political motivations.
In the context of military services, the current law is that enrolment in the Canadian Armed Forces (CAF) is voluntary and a CAF member must be prepared to perform any lawful duty to defend Canada. An applicant to the CAF who has a conscientious objection shall not be accepted to join the CAF. A CAF member who subsequently raises a conscientious objection must request for a voluntary release, and if the objection is approved, shall be released from service.
In the context of tax, the tax jurisprudence has provided that the courts do not have the jurisdiction to grant the requested relief of exempting the taxpayers from paying taxes. Such provision was made in Prior v Her Majesty the Queen, [1989] 2 C.T.C. 280 (Prior), and affirmed in later cases. The courts also found that the payment of taxes was not closely connected to the government’s military expenses and did not identify the taxpayers with the military exercise or the exercise of other functions of the government.
Norejko: conscientious objector to abortion law
In Norejko v. the King, the Canadian tax litigation lawyer for CRA attacked the taxpayer’s case on three grounds:
First, the Crown attacked the taxpayer’s compliance with the tax litigation procedure. In order to appeal to the TCC, the taxpayer must first utilize the internal appeal mechanism within the Canada Revenue Agency (CRA). Specifically, the taxpayer must file a Notice of Objection to the CRA. It is only when the taxpayer disagrees with the decision of the CRA regarding the objection of the taxpayer or when the objection is not dealt with by the CRA within the prescribed time limitations that the taxpayer may file a Notice of Appeal to the TCC. For more information on the procedure, please visit our article on tax court procedure. In this case, the taxpayer did not file the prerequisite Notice of Objection with the CRA.
Second, the Crown attacked the taxpayer’s compliance with the procedural requirement for a constitutional challenge. Where the constitutional validity, applicability or operability of an Act of Parliament or its regulations is questioned before the court, a notice must be served to the Attorney General of Canada and the attorney general of each province. Again, in this case, the taxpayer did not notify the Attorney General of Canada and the attorneys general of the provinces of his challenge.
Finally, and most importantly, the CRA contended that the TCC does not have the jurisdiction to grant an exemption from payment of income tax. The Crown referred to Prior as well as other cases on the subject. Particularly, it mentioned the O’Sullivan v. Her Majesty the Queen, [1991] 2 C.T.C. 177, where the TCC denied the requested relief from paying income tax and held further that the taxpayer’s freedom of conscience was not infringed because the payment of income tax did not cause the taxpayer to participate personally in the counselling or performance of an abortion.
Ruling – The Courts do not have the jurisdiction to exempt tax payment obligation
The TCC ultimately ruled against the taxpayer, following the long-held jurisprudence that the courts do not have jurisdiction to exempt a taxpayer from paying federal and provincial income taxes. An appeal by the taxpayer was later dismissed by the FCA, and application for leave to appeal to the SCC was also denied.
Pro tax tips – Disagreeing with the government’s actions does not exempt the taxpayers from paying taxes
It is entirely within a citizen’s right to disagree with the government’s actions. But disagreeing with or even feeling violated by the government’s actions does not exempt a taxpayer from tax obligations. The taxpayer will be charged interest on any taxes owed if he or she pays late. The taxpayer will face a late-filing penalty when his or her return is filed late and has a balance owing. The taxpayer will further face gross negligence penalty if his or her return is filed late knowingly or under circumstances amounting to gross negligence. It is always recommended that the taxpayer files his or her returns and pays any taxes owed on time while retaining an experienced Canadian tax litigation lawyer to advise on how to challenge his or her tax obligations.
FAQ
I object to paying income taxes on the grounds of conscience and/or religion. Can I take the government to court?
Technically, you can. But remember that the long-held tax jurisprudence is that the courts do not have jurisdiction to exempt a taxpayer from paying income taxes, federal or provincial. The courts have historically held that paying income tax is not closely connected to one particular function of the government, does not identify the taxpayer with that particular function, does not impose the taxpayer to personally participate in that function, and does not infringe the taxpayer’s freedom of conscience or religion.
What if I want to take the government to court anyway?
In that case, you need to follow the procedures required for a tax challenge and a constitutional challenge. For a tax challenge, you must file a Notice of Objection to the CRA, and if the objection is not resolved to your satisfaction or not at all, you may file a Notice of Appeal to the TCC. Please see our article on tax court procedure for more information. For a constitutional challenge, you must serve a notice to the Attorney General of Canada and to the attorneys general of the provinces. Failure to comply with the prescribed procedures risks you of losing the case even if the substantive ruling is on your side.
DISCLAIMER: This article just provides broad information. It is only up to date as of the posting date. It has not been updated and may be out of date. It does not give legal advice and should not be relied on. Every tax scenario is unique to its circumstances and will differ from the instances described in the article. If you have specific legal questions, you should seek the advice of a Canadian tax lawyer.
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