Withdrawing A Guilty Plea Years Later: What Bernier v The King Teaches Canadian Taxpayers Facing Tax Fraud Charges

Overview: When a Tax Fraud Guilty Plea Comes Back to Haunt a Taxpayer

Pleading guilty to a tax fraud charge is rarely the end of a taxpayer’s troubles. In Bernier v The King, a taxpayer who pleaded guilty to Income Tax Act and Excise Tax Act offences in 2022 tried, more than three years later, to reopen his case: he asked the Ontario Superior Court of Justice for an extension of time to appeal his convictions and sentence, hoping to have his guilty pleas set aside and his fine vacated. His stated reason was that he had not appreciated the collateral consequences of pleading guilty, in particular the Canada Revenue Agency’s (CRA) practice of publicly naming convicted taxpayers online.

The application was dismissed. But the reasoning in Bernier is essential reading for any Canadian taxpayer, director, or business owner weighing a guilty plea in a CRA prosecution, and for anyone who has already pleaded guilty and is now having second thoughts. This article, from an experienced Canadian tax litigation lawyer, breaks down what happened, why the taxpayer lost, and what taxpayers facing similar charges should do differently from the outset.

Background: From False SR&ED and GST/HST Claims to a Guilty Plea

The taxpayer in Bernier was the shareholder and senior officer of two corporations. A CRA investigation found that, between 2013 and 2015, he used forged invoices and falsified business records to support false GST/HST returns and Scientific Research and Experimental Development (SR&ED) claims. On the strength of those false filings, he obtained or attempted to obtain roughly $160,000 in GST/HST refunds under the Excise Tax Act and over $220,000 in Ontario Innovation Tax Credit (OITC) refunds under the Taxation Act, 2007, according to the CRA’s own published enforcement notice on the case. Had the underreporting come to light before CRA opened its investigation, a voluntary disclosure application might have avoided prosecution entirely; once CRA has already begun investigating, that door is closed.

He was charged with eight offences under the Income Tax Act, eight under the Excise Tax Act, and, in a separate information, eight under the Taxation Act, 2007. On September 28, 2022, he pleaded guilty to six counts; the tax litigation lawyer acting for the CRA withdrew the rest. The Ontario Court of Justice sentenced him on October 6, 2022, to a 12-month conditional sentence, a fine of $190,100, and 12 months’ probation.

Three weeks later, within the standard 30-day appeal period, the taxpayer discovered a CRA publication that referenced his guilty pleas, the admitted facts, and his sentence. He went back to the Ontario Court of Justice seeking an order forcing the CRA to take the information down and imposing a publication ban. In February 2024, the Ontario Court of Justice dismissed that application for want of jurisdiction. He appealed that jurisdictional ruling to the Superior Court of Justice, and after several delays, that appeal was dismissed on December 12, 2025.

Three days later, on December 15, 2025, he took a different tack: he applied to the Superior Court to extend the time to appeal his original convictions and sentence, to set aside his guilty pleas, and to vacate the fine outright. His argument was that he would never have pleaded guilty had he understood that CRA would publish the details of his case online.

Key Issues and Findings: The Four-Part Test for Extending Time to Appeal

An application to extend the time to appeal a criminal conviction under the Criminal Code is not simply granted for the asking. The court weighed four factors:

1. Whether the taxpayer had a genuine, bona fide intention to appeal within the original appeal period.
2. Whether the delay had been reasonably explained.
3. Whether the proposed appeal had merit.
4. Whether the interests of justice favoured granting the extension.

The court found against the taxpayer on every branch of the test. On intention to appeal, the taxpayer had never actually challenged his convictions, only their collateral consequences. He had not retained appeal counsel, prepared a notice of appeal, or made any inquiries directed at overturning the convictions themselves during the appeal window or for years afterward. On the delay, the court found more than three years unaccounted for was neither adequately explained nor consistent with someone who had genuinely intended to appeal from the outset.

On the merits of the proposed appeal, the court flagged an internal contradiction in the taxpayer’s own position: the remorse he had expressed at his 2022 sentencing hearing did not sit well with his affidavit in support of this application, in which he claimed to be factually innocent. A guilty plea that is later attacked as involuntary or uninformed faces a high bar, and inconsistent positions taken by the same taxpayer at different stages of the same proceeding tend to undermine that bar rather than clear it.

Finally, on the interests of justice, the court noted that the plea had been voluntary, unequivocal, and informed at the time it was entered; that the taxpayer had already benefited from a substantially reduced sentence and reduced set of charges as a result of the plea deal; and that reopening a three-year-old conviction on this record would compromise the public interest in the finality of criminal proceedings. The application was dismissed.

Practical Implications: What This Means for Taxpayers Facing CRA Prosecution

Bernier is a warning about sequencing, not really a case about CRA’s publication practices at all. The taxpayer’s real complaint, that CRA’s enforcement notices identify convicted taxpayers by name and describe the underlying conduct, was never actually adjudicated on its merits in this application; his separate attempt to get that specific relief had already failed on jurisdictional grounds in the Ontario Court of Justice. What the Superior Court decided was narrower and, for other taxpayers, more instructive: a guilty plea entered with the advice of counsel, followed by years of silence, cannot later be undone simply because the taxpayer did not fully appreciate one of its consequences. The fact pattern echoes our earlier analysis of Regina v Reynolds, another case combining Income Tax Act, Excise Tax Act, and Criminal Code charges from the same underlying conduct, where sentencing outcomes turned heavily on how the facts were characterized at the plea stage rather than argued after the fact.

For taxpayers currently facing CRA criminal referral or already charged, the practical lesson is that the collateral consequences of a guilty plea, including CRA’s practice of publicizing convictions through its enforcement notification program, need to be discussed with a Canadian tax litigation lawyer before a plea is entered, not after sentencing. Once a plea is entered and accepted, the window to unwind it narrows quickly, and simply not liking the consequences later is not a basis the courts will accept.

Bernier underscores that time matters enormously for taxpayers who have already pleaded guilty and are having second thoughts. A genuine intention to appeal has to be demonstrable through concrete steps, retaining counsel, drafting a notice of appeal, making inquiries, taken within or shortly after the standard appeal period. Waiting years and then applying for an extension once an unrelated grievance surfaces is unlikely to succeed.

Bernier also illustrates why the standard advice on a Notice of Objection or Notice of Appeal deadline applies with even more force in the criminal context: extensions of time are available, but only where the applicant can show a continuing intention to appeal and a reasonable explanation for delay, and courts scrutinize both closely.

“The CRA is sending a clear message that tax evasion does not pay. And it will cost you more than restitution, penalties and jail time. It will cost you your reputation. Try re-building any business when you’re a convicted criminal and no one will do business with you.” — David J. Rotfleisch, Certified Specialist in Taxation Law (Law Society of Ontario)

Takeaway

Bernier v The King confirms that Canadian courts will not use an extension-of-time application as a backdoor to reopen a validly entered guilty plea in a CRA prosecution years after the fact, even where the taxpayer’s underlying complaint, about how CRA discloses convictions, may be a genuine grievance. The taxpayer’s real error was not in the plea itself but in waiting more than three years, and pursuing an unrelated publication-ban application first, before ever challenging the conviction. Taxpayers negotiating a resolution with the CRA’s criminal investigators or the Public Prosecution Service of Canada need full advice on every consequence of a guilty plea before signing off on it, because the courts will hold them to that plea afterward.

Pro Tax Tips

• Any Canadian taxpayer or business owner contacted by CRA’s Criminal Investigations Program should retain an experienced Canadian tax litigation lawyer immediately, before making any statement and well before any plea discussion begins, because the strategic decisions that matter most in these files, whether to cooperate, whether to negotiate a reduced set of charges, and whether a guilty plea is in the taxpayer’s overall interest, are made early and are difficult to reverse.
• A knowledgeable tax lawyer will walk through the full range of consequences of a guilty plea before it is entered, not only the fine and conditional sentence but also professional licensing implications, immigration and travel consequences, and the likelihood that CRA will name the taxpayer in a public enforcement notice, so that the plea is genuinely informed rather than something the taxpayer only understands in hindsight.
• Taxpayers who believe CRA’s public disclosure of a conviction was improper, or who want to know whether a case for a publication ban or takedown exists, should raise it at sentencing, where the sentencing court has jurisdiction to consider it, rather than years later, since Bernier shows that the Ontario Court of Justice has already held it lacks jurisdiction to order CRA to remove published information after the fact.
• Finally, taxpayers who genuinely believe their guilty plea was uninformed or involuntary need to move immediately: retain appeal counsel, prepare a notice of appeal, and take demonstrable steps within days or weeks, not years, because an extension of time to appeal depends on showing a continuing intention to appeal from the outset, and a long, unexplained gap will be fatal to the application regardless of how the underlying merits might otherwise look.

Frequently Asked Questions

Can I withdraw a guilty plea after being sentenced for tax fraud in Canada?

It is possible but difficult. A court will only allow a guilty plea to be set aside where the taxpayer can show the plea was not voluntary, unequivocal, and informed, and applications made years after sentencing face a very high bar, as Bernier demonstrates.

What is an extension of time to appeal, and when is it available?

It is an application asking a court to allow an appeal to be filed after the normal appeal deadline has passed. Courts generally weigh whether the applicant had a genuine intention to appeal within the original period, whether the delay is reasonably explained, whether the proposed appeal has merit, and whether the interests of justice favour granting it.

Does CRA publish the names of taxpayers convicted of tax evasion or tax fraud?

Yes. CRA regularly issues public enforcement notifications identifying taxpayers who have been convicted of tax evasion, tax fraud, or related offences, along with a summary of the conduct, the charges, and the sentence imposed. This is a deliberate policy choice on CRA’s part, rooted in general deterrence, a recognized sentencing principle aimed at discouraging the public at large from committing similar offences, rather than only punishing the individual taxpayer involved.

Can I force CRA to remove a published enforcement notice about my conviction?

Based on the Bernier line of proceedings, the Ontario Court of Justice held that it lacks jurisdiction to order CRA to remove such a publication or to impose a publication ban after sentencing has already occurred. Any argument for restricting publication is best raised at the sentencing hearing itself.

What happens if I plead guilty without knowing CRA might publicize the conviction?

Not knowing about a collateral consequence of a guilty plea, on its own, is unlikely to be enough to have the plea set aside later. Courts expect taxpayers to obtain full advice on the consequences of a plea before entering it.

What is the difference between a tax audit and a CRA criminal investigation?

A CRA tax audit is a civil compliance review focused on whether the correct amount of tax was reported and paid. A CRA criminal investigation for tax evasion or tax fraud, carried out by CRA’s Criminal Investigations Program, examines whether an offence such as tax evasion or fraud was committed and can lead to charges prosecuted by the Public Prosecution Service of Canada.

How long do I have to appeal a criminal tax conviction in Ontario?

The standard appeal period following sentencing is short, generally 30 days, so taxpayers who believe they have grounds to appeal need to retain counsel and act immediately rather than waiting.

What factors did the court consider in denying the extension in Bernier?

The court considered whether the taxpayer had a bona fide intention to appeal within the appeal period, whether the delay of more than three years was reasonably explained, whether the proposed appeal had merit, and whether the interests of justice favoured an extension. It found against the taxpayer on all four factors.

Can a taxpayer be factually innocent after pleading guilty and expressing remorse at sentencing?

Courts view this combination with real skepticism. In Bernier, the court noted that the remorse expressed at the original sentencing was inconsistent with a later claim of factual innocence, and treated that inconsistency as undermining the merit of the proposed appeal.

What are the real consequences of a guilty plea in a CRA tax fraud prosecution?

Beyond the fine, conditional sentence, or jail term imposed by the court, a guilty plea can trigger professional licensing consequences, travel and immigration complications, and public identification through CRA’s enforcement notification program. All of these should be discussed with counsel before a plea is entered.

Should I get a second opinion before agreeing to plead guilty to a CRA tax charge?

Yes. Given how difficult it is to unwind a guilty plea afterward, as Bernier shows, taxpayers facing serious tax fraud charges should ensure they have candid, complete advice on every consequence of a plea, including CRA’s publication practices, before signing off on any plea agreement.

Where can I read more about appealing CRA reassessments or tax decisions generally?

See our overviews on Tax Court appeals, Federal Court appeals, and deadlines and extensions for objections and appeals.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.