Tale of the tape
A St. John’s man says his evidence has been tampered with; court blames faulty recording
PART 2 OF 2
Gary Hennessey and his wife Lynette have a huge document collection at their home in St. John’s — voluminous evidence of his titanic struggle to clear his name and business reputation in a nine-year legal battle with the Canada Revenue Agency.
“I’ve got a house that’s full of paper,” Hennessey says. “It’s like we’re living in a shoebox because we can’t afford to throw anything out.”
Years of court hearings and the resulting financial pressure have cost Hennessey plenty: it’s put stress on his family life, cost him his St. John’s administrative business, forced him to mortgage his house, led to bankruptcy — and now, perhaps, to contemplate it for a second time, as the legal bills keep amassing.
But perhaps the highest price Hennessey has paid is the loss of his faith in the federal justice system; his belief that when you need your government’s help, the court’s help, to right a wrong, they’ll be there to listen.
He no longer believes that and it’s left him with a bitter taste he can’t get rid of.
“You can spend a lifetime building up your credibility, and that can be gone in a heartbeat,” he says.
Gary Hennessey is working three homecare jobs to try to keep the wolf from the door, but it keeps on coming anyway in the form of legal bills.
He’s representing himself in court these days because he can’t afford a lawyer.
Hennessey has two court dates on the horizon. Five months have been set aside for a jury trial in Supreme Court in January where he will face one count of tax evasion plus three counts of fraud for failing to pay CRA arrears he says weren’t his responsibility.
In 2013, Hennessey brought a civil suit against the CRA in Federal Court, claiming “(its) officials acted maliciously and unlawfully in their efforts to collect payroll remittance arrears and, in so doing, caused the collapse of his payroll management business, Administrative Services.”
He lost that suit, with the judge noting in his March 2014 decision, “the CRA’s conduct was fair, responsible and reasonable throughout. It was also lawful.”
Hennessey is appealing that decision in part on the grounds the judge seemed biased towards him, and his Charter rights were violated, with the matter to be heard tomorrow in St. John’s.
He contends CRA withheld information needed for his defence for years until the federal information commissioner weighed in.
But the judge decided there wasn’t anything untoward at play, noting, “There is nothing to suggest that CRA officials in Newfoundland withheld information from Mr. Hennessey to cover up their actions … in other words, there are no ‘smoking guns’ contained in any documents that were belatedly produced.”
The Federal Court decision laid the blame for Hennessey’s financial woes at his own doorstep, saying, essentially, his sense of altruism was the source of his undoing.
“There is no doubt that Mr. Hennessey assumed some responsibilities that were not his, partly at the behest of Eastern Health and partly to fulfil the expectations or, in some cases, the demands of his clients,” the judge wrote.
“But the responsibility for those decisions was his alone. He was not obliged to cover unfunded payroll accounts on behalf of Eastern Health, and a number of other payroll providers refused to do so. He was similarly not responsible for attending to preexisting payroll remittance arrears on behalf of his clients and, indeed, the CRA did not contend otherwise.”
Hennessey disputes that assessment, but he’s not confident the appeal will change anything, in part because he believes evidence that could work in his favour has been tampered with.
Words disappear
When the civil case was heard in Federal Court in 2013, Hennessey, his wife, and his friend (and sometimes pro bono legal counsel) Noel Daley, all say they heard the judge make a comment that sounded biased against Hennessey: “So, tell me about this big conspiracy by CRA to cause Mr. Hennessey harm.”
All three have sworn affidavits saying the comment was made in their earshot.
But when Hennessey was finally able to get an audiotaped copy of the court proceedings, those 14 words were nowhere to be heard.
Hennessey scrabbled together $4,000 to have the tape examined by experts — a forensic lab in Ontario that does work for the police and the courts — they concluded the tape had been cut in two places.
A second, separate review of the tape concurred.
“It calls the integrity of the system into question,” Hennessey says.
He cites a recent decision from the Ontario Supreme Court, which notes “A proper and accurate record (of court proceedings) is for the protection of the accused,” and that “Individual or systemic action contributing to haphazard or inaccurate maintenance of the record of court proceedings cannot be tolerated.”
Hennessey asked the court to allow his findings about the audiotape to be aired at his appeal, but was denied, with a Federal Court of Appeal judge writing:
“…(The) appellant has not persuaded me that the new evidence is relevant to the question of alleged bias, but rather may speak to the quality of the recording only, nor has the appellant convinced me that, if believed and if found to be credible, the new evidence could reasonably be expected to have affected the result of the trial...”
For Hennessey, it felt like another door slammed in his face.
“I don’t expect anyone to care about me,” he said. “But this is our federal justice system, not just mine. This affects so many people. This goes to the heart of the federal justice system.”
Hennessey knows some people will dismiss him as a conspiracy theorist, with his claims of altered evidence and systemic railroading, but he is undeterred.
“He still believes there’s light at the end of the tunnel,” Lynette Hennessey says. “He’s actually given the evidence to prove what he’s saying — it’s not a conspiracy theory. … I really respect him. Sometimes it feels tempting to give up. Everything we’re doing is costing us money that we don’t have. Justice is for the rich, that’s one thing I’ve gotten from this.”
Asked what he will do if he doesn’t win in court, Hennessey’s voice cracks.
“I can’t tell you how much time, energy …” he says. “If it wasn’t for my wife—”
He breaks down for a moment and then gathers himself again.
“I intend to expose the injustice, by whatever means I can. … I know I’m right and I’ll fight as long as I can.”