Walsh,
J:—Three
petitions
were
presented
by
petitioner
in
this
matter
and
argued
at
the
same
time,
the
first
seeking
the
cancellation
and
suspension
of
an
order
rendered
ex
parte
invoking
rules
330
and
1909
of
the
Federal
Court
and
sections
8
and
12
of
the
Constitution
Act,
1982,
the
second
being
a
petition
opposing
and
seeking
the
cancellation
of
the
garnishment
of
moveable
property,
invoking
section
627
of
the
Quebec
Code
of
Civil
Procedure,
sections
8
and
12
of
the
Constitution
Act,
1982
and
article
56
of
the
Federal
Court
Act,
the
third
being
a
petition
to
cancel
or
suspend
the
execution
of
the
judgment
rendered
ex
parte
invoking
rules
330
and
1909
of
the
Federal
Court
and
articles
11,
12,
24
and
52
of
the
Constitution
Act,
1982.
In
argument
it
was
conceded
that
there
is
considerable
duplication
in
these
petitions.
The
facts
giving
rise
to
this
litigation
may
be
outlined
as
follows.
On
January
13,
1984
a
provisional
garnishment
order
was
rendered
by
Justice
Dubé
ordering
the
garnishee
to
appear
on
February
24,
1984,
to
declare
all
amounts
due
by
it
to
the
debtor
and
retain
same
until
the
Court
decided
how
they
should
be
dealt
with.
This
was
based
on
a
certificate
registered
in
the
Court
on
December
7,
1983
pursuant
to
subsection
223(1)
of
the
Income
Tax
Act
claiming
indebtedness
of
Charron
for
1981
and
1982
income
tax,
penalty
and
interest
amounting
to
$19,631.54
with
interest
on
the
amount
of
$13,852.71
from
November
10,
1983
to
the
date
of
payment
pursuant
to
subsection
161(1)
of
the
Act.
Subsection
223(1)
of
the
Act
reads
as
follows:
223.
(1)
An
amount
payable
under
this
Act
that
has
not
been
paid
or
such
part
of
an
amount
payable
under
this
Act
as
has
not
been
paid
may
be
certified
by
the
Minister
(a)
where
there
has
been
a
direction
by
the
Minister
under
subsection
158(2),
forthwith
after
such
direction,
and
(b)
otherwise,
upon
the
expiration
of
30
days
after
the
default.
Subsection
(2)
reads:
(2)
On
production
to
the
Federal
Court
of
Canada,
a
certificate
made
under
this
section
shall
be
registered
in
the
Court
and
when
registered
has
the
same
force
and
effect,
and
all
proceedings
may
be
taken
thereon,
as
if
the
certificate
were
a
judgment
obtained
in
the
said
Court
for
a
debt
of
the
amount
specified
in
the
certificate
plus
interest
to
the
day
of
payment
as
provided
for
in
this
act.
An
affidavit
by
Robert
Lefrançois
dated
December
15,
1983,
supporting
a
petition
dated
January
5,
1984
for
the
provisional
garnishment
contains
a
paragraph
stating
that
the
Minister
demanded
payment
immediately
after
the
assessment
pursuant
to
subsection
158(2)
of
the
Income
Tax
Act,
being
of
the
opinion
that
the
taxpayer
was
attempting
to
avoid
payment.
This
paragraph
was
necessary
to
bring
the
filing
of
the
certificate
within
the
provisions
of
paragraph
223(l)(a)
since
the
assessment
was
only
made
on
November
9,
1983
and
hence
only
28
days
before
registration
of
the
certificate.
The
said
section
158
reads
as
follows:
158.
(1)
The
taxpayer
shall,
within
30
days
from
the
day
of
mailing
of
the
notice
of
assessment,
pay
to
the
Receiver
General
any
part
of
the
assessed
tax,
interest
and
penalties
then
remaining
unpaid,
whether
or
not
an
objection
to
or
appeal
from
the
assessment
is
outstanding.
(2)
Where,
in
the
opinion
of
the
Minister,
a
taxpayer
is
attempting
to
avoid
payment
of
taxes,
the
Minister
may
direct
that
all
taxes,
penalties
and
interest
be
paid
forthwith
upon
assessment.
The
notice
of
assessment
was
allegedly
sent
to
the
debtor
at
his
address
the
same
day
it
was
made,
that
is
to
say,
November
9,
1983.
Petitioner
contends
that
as
of
December
7,
1983
he
had
never
received
notice
of
this
assessment,
which
was
in
effect
a
reassessment,
since
he
had
already
been
assessed
for
the
1981
and
1982
taxation
years
on
the
basis
of
the
returns
he
had
made
without
any
additional
amounts
being
claimed.
Petitioner
alleges
that
it
was
only
about
January
30,
1984
after
having
learned
of
the
procedures
taken
to
execute
the
judgment
that
he
made
formal
notices
of
opposition
to
these
reassessments.
Respondent
does
not
deny
that
these
were
made
in
time
and
will
be
dealt
with
in
due
course.
Petitioner
raises
a
variety
of
arguments
in
contesting
the
provisional
garnishment
order
of
January
13,
1984.
He
states
that
the
affidavit
by
virtue
of
which
it
was
obtained
was
defective
as
it
did
not
say
that
the
certificate
of
December
7,
1983,
having
the
effect
of
a
judgment
has
not
been
satisfied.
This
contention
is
wrong
since
paragraph
1
of
the
affidavit
states
that
the
amount
remains
unpaid.
He
states
that
the
affidavit
does
not
state
the
amounts
of
the
debt
owing
to
him
by
the
garnishee.
The
affidavit
of
necessity
contained
certain
information
necessary
to
indicate
why
an
order
should
be
issued
against
the
garnishee
calling
upon
him
to
declare.
It
is
conceded
that
he
was
arrested
on
October
19,
1983
on
a
charge
under
the
Narcotics
Act,
that
on
his
arrest
the
following
sums
were
found,
$800
on
his
person,
$4,670
with
his
effects
in
a
bag,
and
$14,000
at
2
Place
Dupuis
L’Esterel,
and
that
they
are
in
the
possession
of
the
Clerk
of
the
Court
of
the
Sessions
of
the
Peace,
the
garnishee.
Supporting
documents
were
annexed
to
the
affidavit.
On
November
17,
1983
an
order
to
produce
the
sums
seized
was
served
on
the
police
of
the
Montreal
Urban
Community
pursuant
to
subsection
224(3)
of
the
Income
Tax
Act,
and
on
December
1,
1983
a
peremptory
demand
for
payment
was
made
on
the
Clerk
of
the
Court
of
the
Sessions
of
the
Peace,
Montreal.
While
it
seems
doubtful
whether
the
sums
held
by
the
police
come
within
the
provisions
of
subsection
224(3)
of
the
Act
which
only
refers
to
amounts
payable
to
the
tax
debtor
as
“interest,
rent,
remuneration,
a
dividend,
an
annuity
or
other
periodic
payment’’,
the
issue
of
whether
these
sums
can
be
properly
garnisheed
should
await
a
decision
when
the
garnishee
has
made
his
declaration,
at
which
time
oppositions
to
seizure
whether
by
the
debtor
or
the
garnishee
or
by
a
third
party
having
an
interest
in
the
said
sums
can
be
dealt
with.
While
certainly
the
guilt
or
innocence
of
the
debtor
is
not
an
issue
before
this
Court,
and
he
must
in
any
event
be
presumed
to
be
innocent
until
proven
guilty,
this
information
to
which
his
counsel
strongly
objected,
was
necessary
to
indicate
the
nature
of
the
funds
held
by
the
garnishee.
Petitioner’s
counsel
pointed
out
however
that
he
was
charged
together
with
others,
so
that
it
has
not
been
established
that
the
money
seized
by
the
police
was
his.
In
particular
there
is
nothing
to
show
that
the
$14,000
seized
at
the
address
2
Place
Dupuis
L’Esterel
was
at
an
address
belonging
to
him
although
documents
produced
indicate
that
this
was
done
by
virtue
of
a
search
warrant.
Here
again
if
the
money
seized
or
part
of
it
does
not
belong
to
the
debtor
the
owners
can
make
an
opposition
to
seizure
in
due
course.
The
fact
that
the
debtor
is
in
prison
does
not
deprive
him
of
any
civil
rights
other
than
those
necessarily
resulting
from
his
incarceration
nor
can
it
taint
his
right
to
appeal
the
assessment.
It
appears
from
a
further
affidavit
of
Robert
Lefrançois
produced
at
the
hearing
that
Charron
had
filed
no
tax
returns
for
1978
or
1979,
had
only
declared
income
of
$1,084.05
for
1980,
$2,332
for
1981
and
$1,719
for
1982
so
that
representatives
of
the
Minister
on
learning
of
the
substantial
sums
seized
made
a
further
investigation
of
his
bank
deposits
in
1982
and
1983
and
his
living
expenses
adding,
as
a
result,
$38,532
as
business
income
to
his
1981
return
and
$42,826
as
business
income
to
his
1982
return
in
new
tax
assessments
dated
November
9,
1983.
Whether
these
new
assessments
were
justified
or
not
is
a
matter
which
will
only
be
determined
following
the
decision
on
his
notices
of
objection
and
whatever
appeals
he
may
bring.
Meanwhile,
whether
the
assessments
are
right
or
wrong,
the
certificates
resulting
from
them
were
registered
on
December
7,
1983.
Petitioner
contends
however
that
there
is
no
justification
for
saying
that
he
is
avoiding
payment
of
tax.
Certainly
the
mere
fact
of
non-payment
is
not
equivalent
to
avoidance,
nor
is
the
fact
of
making
erroneous
declarations
(and
this
has
not
yet
been
proved
in
view
of
the
notice
of
objection).
This
is
clearly
not
the
intention
of
subsection
158(2)
of
the
Act.
The
Minister
may
have
had
good
reason
for
using
this
section
for
registering
the
certificate
only
28
days
after
the
assessments
instead
of
waiting
for
the
normal
delay
of
30
days
which
would
not
require
an
allegation
of
avoidance
of
payment.
Petitioner
contends
however
that
Robert
Lefrançois
who
made
the
affidavit
could
not
make
this
statement
as
it
was
only
the
Minister
who
could
make
this
finding.
All
the
affidavit
states
though
is
that
the
Minister
was
of
this
opinion,
not
that
it
is
Lefrançois’
opinion.
While
petitioner
states
that
this
is
hearsay
it
is
supported
by
an
exhibit
annexed
to
the
affidavit
and
a
copy
of
the
letter
by
the
Deputy
Minister
dated
November
9,
1983
advising
the
debtor
of
the
reassessments
and
demanding
immediate
payment
which
states
(translated)
This
directive
is
addressed
to
you
by
virtue
of
Paragraph
2
of
Article
158
of
the
Income
Tax
Act.
The
Deputy
Minister
can
exercise
the
powers
of
the
Minister.
While
petitioner
invokes
section
8
of
the
Charter
of
Rights
in
the
Canadian
Constitution
of
1982
which
provides
that
everyone
has
the
right
to
be
secure
against
unreasonable
search
or
seizure
and
article
12
providing
that
“Everyone
has
the
right
not
to
be
subject
to
any
cruel
and
unusual
treatment
or
punishment’’
I
do
not
believe
that
article
8
can
have
any
application
since
it
remains
to
be
seen
whether
the
seizure
was
valid
or
not.
There
is
undoubtedly
a
difference
between
an
irregular
seizure
and
an
“unreasonable’’
seizure.
It
is
not
unreasonable
to
garnishee
assets
as
a
result
of
the
filing
of
a
certificate
under
section
231
[sic]
of
the
Act
for
income
tax
assessments.
With
respect
to
article
12
there
is
certainly
no
question
of
any
unusual
treatment
or
punishment.
What
has
been
done
is
a
very
common
procedure
and
although
petitioner
alleges
that
as
a
result
of
the
seizure
he
is
now
deprived
of
any
source
of
income
and
that
he
suffers
a
grave
prejudice
this
is
no
more
than
the
prejudice
suffered
by
any
debtor
whose
assets
are
seized
by
a
creditor,
nor
is
there
anything
cruel
or
unusual
in
applying
the
provisions
of
the
Income
Tax
Act
in
an
attempt
to
collect
taxes
believed
to
be
due.
As
already
stated
the
petitioner
has
every
right
to
oppose
the
seizure
before
it
is
made
definitive,
and
also
to
contest
his
liability
for
taxes
which
led
to
the
seizure.
A
number
of
arguments
were
submitted
on
behalf
of
petitioner
most
of
which
cannot
be
sustained
with
the
exception
of
one
serious
argument
which
I
will
deal
with
at
the
end
of
these
reasons.
Petitioner
contends,
as
previously
indicated,
that
he
did
not
receive
the
notice
of
reassessment
and
that
for
this
reason
the
registration
certificate
was
invalid.
All
that
subsection
152(2)
of
the
Income
Tax
Act
requires
is
that
the
Minister
“shall
send
a
Notice
of
Assessment’’.
It
is
possibly
quite
true
that
Charron
did
not
receive
it.
There
is
no
obligation
to
serve
it
or
even
to
send
it
by
registered
mail.
It
was
quite
properly
sent
to
the
address
of
the
taxpayer
as
shown
in
his
return
and
if
he
happened
to
be
in
jail
at
the
time
and
it
was
not
forwarded
to
him
this
is
not
the
responsibility
of
the
Minister.
Even
if
the
representatives
of
the
Minister
were
aware
that
he
was
in
jail
there
would
be
no
obligation
to
send
the
notice
to
him
there,
since
if
this
policy
were
adopted
it
would
make
the
Minister
responsible
for
attempting
to
trace
the
address
of
a
taxpayer
who
has
moved
since
filing
his
return
in
order
to
send
the
notice
to
him.
The
obligation
imposed
by
the
Act
is
to
send
the
notice
not
to
make
sure
that
it
is
received.
Moreover
in
this
case,
no
doubt
as
a
matter
of
excessive
caution
as
a
result
of
the
petitions
brought,
a
further
affidavit
of
Robert
Lefrançois
was
filed
at
the
opening
of
the
hearing
which
gives
the
names
of
the
persons
who
posted
the
notices
to
Charron
and
annexes
affidavits
from
them
to
this
effect
indicating
the
mailing
on
November
9,
1983.
While
petitioner
points
out
that
these
affidavits
do
not
strictly
comply
with
the
rules
of
this
Court
with
respect
to
affidavits
in
that
the
address
and
occupation
of
the
deponent
are
not
given
nor
does
it
state
that
the
persons
making
them
are
employees
of
the
Department
of
National
Revenue
this
makes
little
difference
because
in
the
first
place,
as
respondent
points
out
these
letters
could
have
been
posted
by
anyone,
not
necessarily
an
employee
of
the
Ministry,
and
moreover
as
I
have
stated
such
rigorous
proof
of
the
mailing
of
a
letter
is
certainly
not
necessary
or
feasible
in
connection
with
the
thousands
of
notices
of
assessment
or
reassessment
sent
regularly
as
a
matter
of
course.
It
is
sufficient
for
the
affidavit
to
state
as
it
did
that
the
notices
were
sent.
On
the
same
date,
November
9,
1983,
formal
demands
for
payment
were
also
sent.
The
standard
form
states
that
“A
certificate
has
been
registered
in
the
Federal
Court
of
Canada
in
respect
of
the
federal
arrears
indicated”.
This
is
obviously
incorrect
since
the
certificate
was
only
registered
on
December
7,
so
the
standard
form
was
obviously
not
applicable
in
the
circumstances
of
this
case.
In
any
event
the
letters
advising
of
the
reassessments
sent
on
November
9,
1983
demanded
immediate
payment
and
refer
to
subsection
158(2)
of
the
Income
Tax
Act
and
moreover
in
any
event
the
taxpayer
admits
becoming
aware
in
due
course,
although
after
registration
of
the
certificate
on
December
7,
of
the
notices
of
reassessment
and,
as
already
indicated,
filed
a
notice
of
opposition
within
the
proper
legal
delays.
Moreover
a
considerable
time
elapsed
between
the
registration
of
the
certificate
on
December
7,
1983
and
the
provisional
order
of
January
13,
1984.
Furthermore
the
affidavit
of
Mr
Lefrançois
produced
at
the
hearing
states
that
on
November
25,
1983
he
sent
to
Charron
at
his
residential
address
a
copy
of
a
peremptory
demand
for
payment,
copy
of
which
is
annexed
to
the
affidavit.
This
makes
no
reference
to
the
date
of
registration
of
the
certificate.
A
further
affidavit
of
André
Héroux,
an
employee
of
the
Department
states
that
on
November
17,
1983,
he
had
had
a
telephone
call
from
Charron
inquiring
as
to
the
reasons
why
Revenue
Canada
were
demanding
the
payment
of
about
$19,000
from
him.
Héroux
advised
him
that
an
assessor
would
call
to
see
him.
Another
affidavit
of
Jean-Pierre
Paquette
an
employee
of
the
Department
states
that
on
December
6
he
had
a
call
from
an
officer
of
the
Detention
Centre,
Parthenais
Street,
indicating
that
Charron
had
received
different
papers
from
Revenue
Canada
and
wished
to
meet
him.
This
is
of
course
hearsay.
As
a
result
on
December
13
he
went
there
with
Gaétan
Côté
at
which
time
Charron
stated
the
documents
which
he
had
received
from
Revenue
Canada
had
been
sent
to
his
lawyer
in
Quebec.
He
further
states
that
he
had
received
no
collaboration
from
him
with
respect
to
establishing
the
sources
of
his
income.
An
affidavit
from
Côté
corroborates
this.
Petitioner
contends
that
subsection
158(2),
(supra),
is
contrary
to
the
Canadian
Charter
of
Rights
and
more
specifically
paragraph
11(d)
thereof
providing
that
any
person
charged
with
an
offence
has
the
right
to
be
presumed
innocent
until
proven
guilty
according
to
the
law
in
a
fair
and
public
hearing
by
an
independent
and
impartial
tribunal.
All
that
subsection
158(2)
does
is
permit
the
Minister
(or
Deputy
Minister
who
can
exercise
his
powers
pursuant
to
Income
Tax
Regulation
900(1))
to
form
an
opinion
that
the
taxpayer
is
attempting
to
avoid
payment
of
taxes
and
thereby
not
required
to
wait
30
days
from
the
mailing
of
the
notice
of
assessment
to
demand
payment
of
them.
Petitioner
correlates
this
with
subsection
239(1)
of
the
Act
which
creates
an
offence
for
evading
payment
of
tax.
Certainly
anyone
charged
with
an
offence
under
section
239
would
have
to
be
given
a
fair
trial.
Charron
has
not
been
charged
with
any
income
tax
offence
even
though
the
reassessment
may
have
resulted
from
the
fact
that
in
the
opinion
of
the
Minister
the
returns
he
made
omitted
to
include
a
substantial
part
of
his
income.
Subsection
158(2)
by
virtue
of
which
the
certificate
was
registered
depends,
on
itself
and
does
not
create
a
criminal
offence
but
is
merely
a
civil
matter
permitting
a
demand
for
payment
to
be
made
without
waiting
30
days
from
the
mailing
of
the
notice
of
assessment.
It
is
also
of
interest
to
note
that
it
uses
the
word
“avoid”
payment
of
the
taxes
rather
than
the
word
“evade”
which
is
the
essence
of
the
criminal
offence.
Neither
do
I
find
subsection
158(2)
of
the
Income
Tax
Act
is
in
any
way
contrary
to
subsection
24(1)
of
the
Canadian
Charter
of
Rights,
nor
that
the
taxpayer’s
rights
are
infringed
as
a
result
of
it.
Subsection
24(1)
reads
as
follows:
24.(1)
Anyone
whose
rights
or
freedoms,
as
guaranteed
by
this
Charter,
have
been
infringed
or
denied
may
apply
to
a
court
of
competent
jurisdiction
to
obtain
such
remedy
as
the
court
considers
appropriate
and
just
in
the
circumstances.
While
it
is
true
that
the
Minister’s
opinion
in
relation
to
the
fact
that
the
taxpayer
is
avoiding
payment
of
taxes
was
made
without
first
hearing
the
taxpayer
he
is
not
deprived
of
his
remedy
to
oppose
this
by
establishing
by
an
opposition
to
seizure
that
he
is
not
avoiding
payment
of
taxes.
In
fact
in
the
present
case
as
the
affidavits
of
Côté
and
Paquette
which
have
been
referred
to
above
establish
they
even
went
to
the
prison
to
interview
Charron
(although
admittedly
after
the
registration
of
the
certificate)
respecting
his
complaints
against
the
assessment
but
were
merely
informed
that
he
had
sent
the
documents
to
his
lawyer
in
Quebec,
and
received
no
collaboration
from
him.
While
the
term
collaboration
is
somewhat
vague
he
certainly
had
the
opportunity
at
that
time
to
at
least
claim
that
none
of
the
sums
which
have
been
seized
belonged
to
him,
or
that
he
had
received
them
in
some
manner
which
would
not
require
them
to
be
included
in
taxable
income
so
that
they
could
investigate
his
allegations.
Instead
he
chose
to
remain
silent,
although
he
will
still
have
an
opportunity
to
make
such
proof
if
it
is
possible
in
an
opposition
to
seizure.
This
brings
us
to
what
I
consider
to
be
a
serious
argument
however
on
the
basis
of
which
I
believe
that
petitioner
must
partially
succeed
in
his
petitions.
The
standard
procedure
for
registration
of
a
certificate
as
set
out
in
paragraph
223(l)(b),
(supra),
is
to
wait
30
days
after
the
notice
of
assessment
has
been
sent
before
registering
the
certificate
which
then
becomes
equivalent
to
a
judgment
of
the
Court.
This
is
admittedly
a
severe
section
and
the
Court
has
no
discretion
with
respect
to
the
registration
of
such
certificate
when
produced
for
this
purpose
signed
by
a
properly
authorized
officer
of
the
Department
of
National
Revenue.
The
certificate
itself
gives
no
reference
to
the
date
of
sending
the
notice
of
assessment
or
reassessment
but
merely
refers
to
the
taxation
year
for
which
the
assessment
is
made.
This
can
be
immediately
followed
by
a
petition
for
a
provisional
seizure,
although
in
the
present
case
the
Minister
waited
nearly
a
month
before
producing
the
petition.
For
obvious
reasons
this
is
done
ex
parte.
The
judgment
on
this
petition
fixes
a
date
on
which
the
debtor,
and
if
it
is
a
garnishment
the
garnishee,
shall
appear
to
declare
and
this
is
duly
served
on
them
and
they
can
make
an
opposition
to
the
seizure
at
that
time.
In
the
interval
the
garnishee
is
ordered
not
to
dispose
of
the
object
seized.
Invoking
subsection
158(2)
as
was
done
in
the
present
case
is
an
exception
to
the
general
rule
requiring
the
30-day
delay
from
the
mailing
of
the
assessment
to
the
registration
of
the
certificate.
For
reasons
best
known
to
him
the
Minister
only
waited
28
days,
therefore
the
certificate
could
not
be
validly
registered
except
by
invoking
subsection
158(2).
The
debtor
Charron
cannot
contend
that
he
had
no
knowledge
that
this
was
intended
since
reference
to
this
section
was
made
in
the
letters
advising
him
of
the
notices
of
assessment.
While
I
do
not
find
that
this
article
itself
is
contrary
to
the
Canadian
Charter
of
Rights
I
do
conclude
that
as
a
matter
of
natural
justice
and
the
well
established
duty
to
act
fairly
it
should
only
be
used
exceptionally
and
when
there
is
clear
evidence
in
the
possession
of
the
Minister
that
the
taxpayer
is
“attempting
to
avoid
payment
of
taxes”.
If
this
were
not
so
then
the
Minister
could
use
this
article
in
all
cases
thereby
avoiding
compliance
with
paragraph
223(1
)(b)
requiring
the
30-day
delay.
In
a
sense
it
can
be
said
that
any
taxpayer
who
files
an
incomplete
or
false
return
is
attempting
to
avoid
payment
of
taxes.
In
a
general
way
it
is
also
perhaps
arguable
that
any
taxpayer
who
has
substantial
sums
of
money
in
his
possession
but
has
not
paid
his
taxes
is
avoiding
payment
of
them.
I
do
not
find
that
either
such
circumstance
however
is
what
subsection
158(2)
is
intended
to
cover.
It
would
appear
to
be
directed
more
to
a
situation
where
a
taxpayer
is
found
to
be
making
away
with
his
assets,
transferring
them
to
others
for
insufficient
consideration,
is
about
to
leave
the
country,
or
some
such
circumstance
as
would
justify
a
seizure
before
judgment
under
provincial
law.
In
the
present
case
the
taxpayer
disputes
that
the
assets
are
his,
or
that
they
resulted
from
undeclared
income,
and
in
fact
has
filed
a
notice
of
objection
to
the
assessments.
While
it
is
true
that
at
the
time
the
affidavit
was
made
none
of
this
was
before
the
Minister,
the
affidavit
read
in
conjunction
with
the
facts
which
are
now
before
the
Court
gives
no
indication
of
the
Minister’s
justification
for
reaching
the
opinion
that
the
debtor
is
attempting
to
avoid
payment
of
taxes.
The
fact
that
he
is
in
prison
awaiting
trial
certainly
adds
nothing
to
this.
In
conclusion
therefore
I
find
that
subsection
158(2)
should
not
have
been
used
so
as
to
register
the
certificate
prematurely
and
that
this
registration
is
therefore
invalid.
It
follows
that
the
provisional
garnishment
judgment
issued
by
Justice
Dubé
on
February
13,
1984
must
be
set
aside.
These
issues
were
not
raised
before
him
and
the
judgment
was
properly
rendered
on
the
basis
of
the
affidavits
supporting
the
petition
for
provisional
judgment
which
invoked
subsection
158(2).
Accordingly
I
grant
petitioner’s
petition
but
only
so
far
as
to
set
aside
the
provisional
seizure
by
garnishment
made
by
virtue
of
the
judgment
of
January
15,
1984
and
suspending
the
execution
of
a
judgment
resulting
from
it.
I
do
not
however
grant
the
third
conclusion
sought
in
the
petitions
that
the
money
seized
should
be
paid
to
the
petitioner.
The
period
of
30
days
now
having
lapsed
since
the
sending
of
the
notice
of
reassessment
respondent
can
register
a
new
certificate
pursuant
to
paragraph
223(1
)(b)
without
invoking
the
provisions
of
subsection
158(2)
and
if
it
so
chooses
forthwith
apply
for
a
new
provisional
garnishment
order
based
on
this
new
certificate
and
need
not
await
the
date
normally
set
aside
by
the
rules
of
this
Court
for
presentation
of
motions
by
virtue
of
the
Income
Tax
Act
but
may
present
same
forthwith.
In
due
course,
as
already
stated,
if
this
is
done
the
debtor
Charron
or
anyone
claiming
ownership
of
the
sums
seized
can
present
an
opposition
to
seizure
at
the
date
fixed
for
making
the
provisional
judgment
definitive.
There
will
be
one
set
of
costs
in
favour
of
petitioner
on
the
three
motions.
ORDER
This
order
is
applicable
to
the
three
motions
presented
herein.
1.
Neither
subsection
158(2)
nor
section
223
of
the
Income
Tax
Act
are
unconstitutional.
2.
The
certificate
for
taxes
registered
on
December
7,
1983
is
annulled
without
prejudice
to
the
right
to
re-register
same.
3.
Consequently
the
provisional
garnishment
judgment
rendered
on
January
13,
1984
is
annulled
as
well
as
the
seizure
resulting
from
it,
main-levee
being
granted
to
the
garnishee.
One
set
of
costs
on
the
three
motions,
in
favour
of
petitioner.
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