Griffiths,
J
[ORALLY]:—The
applicant
seeks
an
order
of
prohibition
prohibiting
His
Honour
Judge
Lampkin
or
any
other
Provincial
Court
judge
from
hearing
charges
against
the
applicant.
The
ground
on
which
such
prohibition
is
sought
is
that
the
charges
against
the
applicant
are
prescribed
and
beyond
the
statutory
limitation
period.
The
applicant
stands
charged
with
four
counts
of
filing
false
or
deceptive
income
tax
returns
for
the
years
1974,
1975,
1976
and
1977,
contrary
to
paragraph
239(1)(a)
of
the
Income
Tax
Act,
RSC
1952,
c
148.
The
information
came
before
Provincial
Court
Judge
Lampkin
at
Toronto
on
February
6,
1984.
The
applicant
was
arraigned
on
the
four
counts
and
the
Crown
elected
to
proceed
summarily.
The
applicant
declined
to
enter
a
plea,
but
moved
to
quash
the
information
on
the
ground
that
it
was
not
laid
within
the
limitation
provided
by
subsection
244(4)
of
the
Income
Tax
Act.
That
subsection
reads
as
follows:
(4)
Limitation
of
prosecutions.
—
An
information
or
complaint
under
the
provisions
of
the
Criminal
Code
relating
to
summary
convictions,
in
respect
of
an
offence
under
this
Act,
may
be
laid
or
made
on
or
before
a
day
5
years
from
the
time
when
the
matter
of
the
information
or
complaint
arose
or
within
one
year
from
the
date
on
which
evidence,
sufficient
in
the
opinion
of
the
Minister
to
justify
a
prosecution
for
the
offence,
came
to
his
knowledge,
and
the
Minister’s
certificate
as
to
the
day
on
which
such
evidence
came
to
his
knowledge
is
conclusive
evidence
thereof.
The
information
here
was
sworn
on
May
6,
1983
and
admittedly
was
beyond
the
five-year
limitation
period
provided
in
subsection
244(4).
The
Crown,
however,
tendered
the
certificate
of
P
W
Shoobert,
Director
of
Taxation
of
the
Toronto
District
Office,
issued
pursuant
to
subsection
244(4)
certifying
that
the
date
on
which
sufficient
evidence
in
the
opinion
of
the
Minister
sufficient
to
justify
the
prosecution
of
the
applicant
for
the
offences
before
the
Court,
was
the
11th
day
of
June,
1982;
a
day
less
than
one
year
prior
to
the
laying
of
the
information.
By
Regulation
900(2)(b)
and
900(5)
the
Director
of
Taxation
may
exercise
the
powers
and
perform
the
duties
of
the
Minister
under
subsection
244(4).
The
certificate
was
validly
issued
here
by
Mr
Shoobert
and
had
the
force
and
effect
of
a
Minister’s
certificate.
Before
His
Honour
Judge
Lampkin,
the
applicant
objected
to
the
admissibility
of
the
certificate
on
two
grounds:
(1)
that
there
was
evidence
available
to
the
Minister
sufficient
to
justify
the
prosecution
on
three
occasions,
two
of
which
were
long
before
June
11,
1982
and
therefore
the
certificate
was
false
and
fraudulent.
Counsel
for
the
applicant
contended
that
evidence
could
be
adduced
to
show
that
the
Minister
had
information
brought
to
his
attention
years
earlier
that
constituted
reasonable
and
probable
cause
for
prosecution
and
therefore
the
certificate
issued
pursuant
to
subsection
244(4)
contained
a
false
opinion
and
should
not
be
admitted
into
evidence;
(2)
that
subsection
244(4)
of
the
Income
Tax
Act
is
unconstitutional
in
so
far
as
it
deems
the
certificate
of
the
Minister
“conclusive
evidence”
and
offends
section
7
and
paragraph
11(d)
of
the
Charter.
The
learned
Provincial
Court
Judge
was
persuaded
by
the
applicant
to
go
behind
the
Minister’s
certificate
on
the
basis
that
fraud
was
alleged
and
to
hear
viva
voce
evidence
in
that
respect.
A
fairly
lengthy
hearing
followed
in
which
the
applicant
and
the
respondent
Crown
each
called
witnesses
to
testify
on
the
issues
of
the
allegations
of
fraud
and
the
date
on
which
the
Minister
had
evidence
sufficient
to
justify
the
prosecution
of
the
applicant.
His
Honour
Judge
Lampkin,
in
a
very
thorough
and
carefully
reasoned
analysis
of
the
evidence,
found
as
a
fact
that
the
date
on
which
there
was
evidence
to
justify
the
prosecution
and
the
issuance
of
the
certificate
by
the
Minister
was
June
11,
1982
and
that
the
certificate
was
not
fraudulently
issued.
The
learned
Judge
dismissed
the
application
to
quash
the
information
finding
it
unnecessary
to
consider
whether
subsection
244(4)
was
rendered
inoperative
by
the
provisions
of
the
Canadian
Charter.
As
I
read
his
reasons,
it
is
evident
that
having
concluded
on
the
evidence
that
the
Minister’s
certificate
had
accurately
stated
the
facts,
there
was
no
need
to
consider
the
statutory
provision
deeming
that
certificate
to
be
conclusive
evidence
of
the
facts.
Principally,
the
same
grounds
were
raised
by
the
applicant
on
this
hearing
as
a
basis
to
issue
an
order
of
prohibition.
I
start
with
the
proposition
that
prohibition,
a
remedy
provided
by
way
of
prerogative
writ,
is
not,
in
any
sense,
a
substitute
for
an
appeal.
A
superior
court
will
only
interfere
to
quash
the
decision
of
an
inferior
court
on
grounds
of
excess
or
want
of
jurisdiction;
Re
Martin
Simard
and
Desjardins
and
The
Queen
(1977),
41
CCC
(2d)
308
(Ont
CA)
affirmed
41
CCC
(2d)
342
(SCC).
Counsel
for
the
applicant
relied
on
the
authority
of
Viger
Co
Ltd
v
Cloutier
and
Leroux,
[1947]
Que
KB
120
for
the
proposition,
that
where
the
charge
against
the
accused
is
prescribed
by
law,
the
lower
court
has
no
jurisdiction
and
prohibition
against
that
court
proceeding
on
the
charge
will
lie.
I
agree
with
the
proposition
that
where
on
the
face
of
it,
the
information
or
indictment
is
clearly
out
of
time,
then
the
Provincial
Court
Judge
cannot
give
himself
jurisdiction
beyond
deciding
any
preliminary
point
of
law
that
may
arise.
But
here
the
applicant
recognized
the
jurisdiction
of
the
Provincial
Court
Judge
to
deal
with
what
was
essentially
a
question
of
fact
and
invited
the
Judge
to
embark
upon
an
inquiry
as
to
the
issue
of
fraud
and
the
propriety
generally
of
the
issuance
of
the
Minister’s
certificate
pursuant
to
subsection
244(4).
Counsel
for
the
applicant
submitted
to
the
Provincial
Court
Judge
that
on
the
evidence
established
there
were
three
earlier
dates
before
June
11,
1982
when
the
Minister
should
be
considered
to
have
had
knowledge
of
the
facts
sufficient
to
warrant
a
prosecution.
The
Trial
Judge
carefully
reviewed
that
evidence
and
found
against
the
applicant’s
contention
on
the
three
earlier
dates.
Those
findings
of
fact
are
not
now
attacked
as
being
unsupported
by
the
evidence.
Indeed
those
findings
appear
to
be
completely
consistent
with
the
evidence.
I
see
no
jurisdiction
in
this
Court
to
interfere
with
the
decision
of
the
Trial
Judge
by
way
of
prerogative
writ
in
the
circumstances.
Even
if
I
had
concluded
that
this
Court
had
authority
to
exercise
a
supervisory
jurisdiction
over
the
decision
and
proceedings
in
the
lower
court,
I
would
not
interfere
in
the
circumstances
of
this
case.
Subsection
244(4)
of
the
Income
Tax
Act
is
clear
and
unambiguous
in
providing
that
in
cases
proceeding
on
summary
conviction
there
is
an
alternative
one-year
prescription
from
the
day
on
which
evidence
sufficient
to
justify
a
prosecution
comes
to
the
Minister’s
knowledge.
The
section
leaves
it
entirely
in
the
hands
of
the
Minister
to
state
when
in
his
“opinion”
sufficient
information
was
brought
to
his
knowledge
to
justify
prosecution.
His
opinion
is
in
no
way
limited
or
fettered
by
the
words
of
this
section.
There
is
no
specific
requirement
that
he
have
“reasonable
and
probable
cause”
for
the
prosecution.
In
Fee
et
al
v
Bradshaw
et
al
(1982),
68
CCC
(2d)
425,
the
Supreme
Court
of
Canada
held
that
the
Minister
under
subsection
244(4)
is
not
exercising
a
discre-
tionary
power
or
making
an
administrative
decision
in
issuing
a
certificate.
As
Mr
Justice
Chouinard
delivering
the
reasons
of
the
Court
said
at
432:
The
Minister
is
not
taking
a
decision
and
he
is
not
exercising
a
discretionary
power.
So
far
as
he
is
concerned
he
is
testifying
as
to
a
fact.
He
does
not
have
to
take
any
position
favouring
one
course
of
conduct
over
another.
He
does
not
have
to
exercise
any
discretion
in
determining
when
evidence
came
to
his
knowledge.
It
is
a
fact.
He
cannot
alter
it
to
suit
himself.
As
counsel
for
the
respondents
observed
(translation):
“He
is
simply
stating
a
fact.’’
There
is,
in
my
opinion,
no
good
reason
to
hold
in
this
case
in
the
absence
of
fraud,
that
the
certificate
of
the
Minister
should
not
be
admitted
in
evidence
on
the
issue
of
the
limitation
period.
As
to
the
second
ground
advanced
by
the
applicant
that
subsection
244(4)
offended
the
Charter
provisions,
it
is
evident
as
I
have
indicated
earlier
that
His
Honour
Judge
Lampkin
concluded
that
it
was
unnecessary
to
consider
that
argument
because
he
had
permitted
the
applicant
to
fully
examine
the
background
facts
leading
up
to
the
Minister’s
certificate
and
had
required
the
Minister
to
prove
that
the
information
contained
in
the
certificate
was
accurate.
I
agree
with
his
approach
in
this
respect.
As
well,
it
is
my
view
that
the
conclusivity
feature
of
section
244
does
not
render
it
inoperative
under
the
provisions
of
section
7
or
subsection
11(d)
of
the
Charter.
The
section
is
procedural
only
for
the
narrow
purpose
of
establishing
the
limitation
period.
The
section
in
no
way
affects
the
substantive
offence
with
which
the
accused
is
charged.
It
in
no
way
alters
the
burden
of
proof
on
the
Crown
or
affects
the
presumption
of
innocence
of
the
accused.
I
conclude
that
the
section
is
constitutionally
sound.
In
the
circumstances,
the
application
will
be
dismissed.
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