Re Pica and The Queen, 85 DTC 5041, [1985] 1 CTC 73 (S.C.O.)

Montgomery, J:—This application by way of certiorari and prohibition seeks to preclude the Provincial Court judges in Hamilton-Wentworth from hearing twenty-two counts of filing false and deceptive income tax returns against the respondents on the ground that the charges are statute barred.

Two issues are to be decided:

(1) Can I hear the application?

(2) If I can hear it, are the charges statute barred?

The facts

At the commencement of trial the Crown filed a certificate pursuant to subsection 244(4) of the Income Tax Act (“the certificate”). The certificate was executed by J R Giles, Director — Taxation, Hamilton District Office of the Department of National Revenue. The certificate purported to certify that “sufficient evidence in the opinion of the Minister to justify the prosecution of Frank Pica and Antony Pica . . . for the wilful evasion of the payment of taxes and the making of false statements . . . came to his knowledge on the 14th day of April, 1983”.

Upon the filing of the certificate the applicants contended on motion to quash that the certificate was false, that is not [sic] that of the Minister. The Provincial Court Judge heard evidence on the motion and argument and concluded that the certificate was proper. He then directed the trial continue. The applicant moved before this Court on certiorari.

Subsection 244(4) of the Income Tax Act says:

(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 day 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.

It must be read with Regulation 900 which states:

900. (1) An official holding a position of Assistant Deputy Minister of National Revenue for Taxation may exercise all the powers and perform all the duties of the Minister under the Act.

(2) An official holding a position of Director—Taxation in a District Office of the Department of National Revenue, Taxation, may exercise the powers and perform the duties of the Minister under

(a) sections 48, 224, 224.1, 224.3 and 233 of the Act;

(b) subsections 10(3), 13(6), 28(3), 34(2), 58(5), 65(3), 74(5), 83(3.1), 104(2), 109(5), 116(2), (4) and (5.2), 125(4), 127(10.2), 131(1.2), 133(7.4), 149.1(15), 150(2), 153(1.1), 159(2), (4) and (5), 162(3), 165(6), 220(4), 230(1), (3), (7) and (8), 230.1(3) (with respect to the application of subsections 230(3), (7) and (8) of the Act), 231(2) and (3) and 244(4) of the Act;

(c) the definition “fiscal period’’ in subsection 248(1) of the Act;

(d) paragraphs 85(l)(e. 1), 89(1)(g) and (3)(b), 104(23)(a), 133(7.2)(b), 149(1)(1), 150(l)(e) and 184(3. l)(e) of the Act;

(d.1) subparagraphs 184(3. l)(c)(iii) and (d)(ii) of the Act;

(e) subsection 39(3a) of the Act as it read in its application to the 1971 and previous taxation years;

(f) paragraph 23(5)(c) of the Income Tax Application Rules, 1971;

(g) sections 106, 210 and 2200 of these Regulations; and

(h) subsection 805(2) of these Regulations.

I address the first issue. The only basis on which this Court can quash a decision of an inferior court which rules on admissibility of evidence, even if erroneous, is if the ruling is made outside the jurisdiction of that court.

See Re Regina and Jones: Re Regina and Daley (Nos 1 and 2) (1974), 2 OR (2d) 741 (Ont CA) and Mailloux v R (1980), 30 CR (3d) 121 (Ont CA) where Martin, JA states:

We are in complete agreement with the decision of O’Driscoll J that a ruling on the admissibility of evidence, even if erroneous, made by a Provincial Judge conducting a preliminary hearing is a ruling made in the exercise of the jurisdiction which he possesses and does not affect his jurisdiction to commit the accused for trial: see R v Norgren 31 CRNS 247, [1976] 3 WWR 196, 27 CCC (2d) 488 (BCCA); A G Que v Cohen, [1979] 2 SCR 305, 13 CR (3d) 36, 46 CCC (2d) 473, 97 DLR (3d) 193, 27 NR 344 (at p 122).

The question therefore is, if a case is statute barred does the judge have jurisdiction to hear it? And further, does that determination not go to jurisdiction?

In Viger Co Ltd v Cloutier and Leroux, [1947] BR 120 (Que CA), a motion was brought to dismiss the complaint on the ground that it was no longer an offence or was prescribed. The motion was dismissed. On appeal the Court of Appeal held that the objection went to jurisdiction. Barclay, J at 122 says:

With respect, I am of the opinion that the objections raised by the petitioner appellant go directly to the jurisdiction of the Magistrate. When a complaint discloses no offence known to the law, the Magistrate has no jurisdiction; a conviction thereon would be an absolute nullity. When there is a time within which a complaint must be laid, non-compliance with this requirement deprives a Court of jurisdiction to entertain the complaint. (Paley, on Summary Convictions (1926) 9th ed, p 110, sec 2.) While the want of jurisdiction in this case is not apparent on the face of the proceedings, the motion called for a decision on a point of law as to whether or not the Magistrate had jurisdiction. By dismissing the motion, the Magistrate decided that he had made an erroneous decision on the point of law, a prohibition will lie. The Magistrate was entitled to decide that point of law, but he cannot give himself jurisdiction if in law it does not exist.

In Salhany’s, Canadian Criminal Procedure, 2nd ed, at 307, the author states:

Prohibition on the grounds of loss of jurisdiction will lie to restrain a magistrate from proceeding under a statute which is inoperative or ultra vires. Similarly, prohibition will issue to prevent a magistrate from proceeding upon an information laid after a limitation period or amended to add a material element after the expiration of the limitation period for laying the charge.

DeSmith, Judicial Review of Administrative Action, 3rd ed, says at 96-97:

This theory of jurisdiction may be stated as follows. Jurisdiction means authority to decide. Whenever a judicial tribunal is empowered or required to inquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. “Where a court has jurisdiction to entertain an application, it does not lose its jurisdiction by coming to a wrong conclusion, whether it was wrong in law or in fact.’’ It does not lose its jurisdiction even if its conclusion on any aspect of its proper field of inquiry is entirely without evidential support. The question whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to inquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable “at the commencement, not at the conclusion, of the inquiry.’’

In my view a limitation period goes to jurisdiction. I conclude therefore that I must decide whether the limitation period has barred these prosecutions.

Subsection 244(4) of the Income Tax Act governs the period of limitation of prosecutions. There would be no prescription if the case proceeded by indictment. An information may be laid under the provisions of the Criminal Code relating to summary conviction on or before five years from the time the matter arose or “within one year from the day 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’’. Counts 9, 10, 11, 17 and 18 are on their face within the five-year period. The other counts were outside the five-year period. The Provincial Court Judge held the certificate to be valid.

Mr Giles, Director of Taxation, Hamilton Office, Taxation Division, signed the certificate purportedly to act on behalf of the Minister.

The thrust of the applicants’ case is that “Minister” in subsection 244(4) means Minister and not his designee.

Regulation 900(1) provides that an Assistant Deputy Minister of National Revenue may exercise all the powers and duties of the Minister under the Act.

Regulation 900(2) says a Director-Taxation in a district office may exercise the powers and perform the duties of the Minister under . . . subsection 244(4) of the Act.

It is argued that in the certificate the Minister is simply required to state when sufficient knowledge came to his attention to justify prosecution. It is a statement of fact. It is not a “power” nor a “duty” and cannot therefore be delegated. This argument was addressed by the Québec Court of Appeal in the case of Attorney General of Canada v Marcotte, [1975] CA 570 , per Mayrand, J A, adopted the words of the trial judge:

. . . The certificate merely replaces the testimony of the Minister himself, and there is nothing to oblige the prosecution to rely on this element of proof. It is conceivable — though improbable — that the Minister can personally come to the trial to testify as to the date on which there came to his knowledge evidence which, in his opinion, was sufficient to justify the prosecution. If that date falls within the year preceding the date of the information, the latter would be valid. Consequently, the defence’s contentions regarding this first part of the argument are unfounded.

The Marcotte case turned on the fact that in the certificate S E Bernier, Assistant Deputy Minister of National Defence, stated sufficient evidence came to his attention and not when it came to the attention of the Minister. The significant time is when the sufficient evidence comes to the attention of the Minister, not when it comes to the attention of a Deputy Minister, Assistant Deputy Minister or a director.

The certificate in this case signed by Mr Giles, Director-Taxation, Hamilton District Office of the Department of National Revenue, states, “sufficient evidence in the opinion of the Minister to justify the prosecution . . . came to his knowledge on the 14th day of April 1983.” [Emphasis mine] The Marcotte case is therefore of no assistance to the applicants on these facts.

The Minister may or may not form an opinion concerning the viability of a prosecution. Subsection 244(4) recognizes that if the Minister formed an opinion on a given day he may simply state the fact by certificate. See Fee v Bradshaw (1982), 68 CCC (2d) 425 (SCC) where Chouinard, J, speaking for the Court, says, at 432:

. . . the statement as to the day on which the evidence came to the Minister’s knowledge cannot in any way be likened, in my opinion, to an administrative decision or the exercise of a discretionary power. 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. . . .

I find the statement of Lord Greene, MR of assistance in Carltona, Ltd v Commissioners of Works and Others, [1943] 2 All ER 560 at 563:

In the administration of government in this country the functions which are given to ministers . . . are functions so multifarious that no minister could ever personally attend to them. . . . It cannot be supposed that the regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official 1s, of course, the decision of the minister. . . .

The English Court of Appeal again addressed delegation of responsibility in Regina v Skinner, [1968] 2 QB 700 (Eng CA). In referring to Carltona, at 707 Widgery, LJ said:

. . . It is, however, important, in the judgment of the court, to realise that the dictum of Lord Greene MR, which I have read, was not in any way based on the special power of delegation in regulation 51(5). Regulation 51(5) was never referred to at all, and the dictum of Lord Greene MR, as it stands, fully recognises that in matters such as those with which we are presently concerned the Minister is not expected personally to take every decision entrusted to him by Parliament. If a decision is made on his behalf by one of his officials then that constitutionally is the Minister’s decision. It is not strictly a matter of delegation; it is that the official acts as the Minister himself and the official’s decision is the Minister’s decision.

Carltona was approved in the Supreme Court of Canada by Mr Justice Dickson (as he then was) in The Queen v Harrison, [1977] 1 SCR 238 (SCC) where he said at 245:

In my opinion there is implied authority in the Attorney General to delegate the power to instruct, in s 605(1). I do not think that s 605(1) requires the Attorney General personally to appeal or personally to instruct counsel to appeal in every case. Although there is a general rule of construction in law that a person endowed with a discretionary power should exercise it personally (delegatus non potest delgare) that rule can be displaced by the language, scope or object of a particular administrative scheme. A power to delegate is often implicit in a scheme empowering a Minister to act. As Professor Willis remarked in “Delegatus Non Potest Delegare”, (1943), 21 Can Bar Rev 257 at p 264:

. . . in their application of the maxim delegatus non potest delegare to modern governmental agencies the Courts have in most cases preferred to depart from the literal construction of the words of the statute which would require them to read in the word “personally” and to adopt such a construction as will best accord with the facts of modern government which, being carried on in theory by elected representatives but in practice by civil servants or local government officers, undoubtedly requires them to read in the words “or any person authorized by it”.

See also S A DeSmith, Judicial Review of Administrative Action, 3d ed, at p 271. Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his department: Carltona, Ltd v Commissioners of Works. The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds of their respective grants of authority, in the discharge of ministerial responsibilities. Any other approach would but lead to administrative chaos and inefficiency. . . .

In my view the certificate was proper. The application is dismissed.