Sherstobitoff,
J.A.:
—
The
major
issue
on
this
appeal
is
the
validity
of
a
certificate
under
subsection
244(4)
of
the
Income
Tax
Act,
S.C.
1970-71-72,
c.
63,
certifying
the
day
on
which
evidence,
sufficient
in
the
opinion
of
the
Minister
of
National
Revenue
to
justify
a
prosecution
under
the
Act,
came
to
his
knowledge.
The
date
[of]
knowledge,
in
this
case,
was
not
that
of
the
Minister
personally,
but
that
of
one
of
his
officers,
a
Director—Taxation.
In
order
to
understand
the
facts,
one
must
first
consider
the
relevant
sections
of
the
Income
Tax
Act,
the
regulations
made
thereunder,
and
the
Interpretation
Act,
R.S.C.
1970,
c.
1-23.
Income
Tax
Act
244.(4)
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.
220.(1)
The
Minister
shall
administer
and
enforce
this
Act
and
control
and
supervise
all
persons
employed
to
carry
out
or
enforce
this
Act
and
the
Deputy
Minister
of
National
Revenue
for
Taxation
may
exercise
all
the
powers
and
perform
the
duties
of
the
Minister
under
this
Act.
221.
(1)
The
Governor
in
Council
may
make
regulations
(f)
authorizing
a
designated
officer
or
class
of
officers
to
exercise
powers
or
perform
duties
of
the
Minister
under
this
Act,
Regulations
under
the
Income
Tax
Act
900.
(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
(b)
subsection
.
.
.
244(4)
of
the
Act.
Interpretation
Act
23.(2)
Words
directing
or
empowering
a
Minister
of
the
Crown
to
do
an
act
or
thing,
or
otherwise
applying
to
him
by
his
name
of
office,
include
a
Minister
acting
for
him,
or,
if
the
office
is
vacant,
a
Minister
designated
to
act
in
the
office
by
or
under
the
authority
of
an
order
in
council,
and
also
his
successors
in
the
office,
and
his
or
their
deputy,
but
nothing
in
this
subsection
shall
be
construed
to
authorize
a
deputy
to
exercise
any
authority
conferred
upon
a
Minister
to
make
a
regulation
as
defined
in
the
Regulations
Act.
The
information
in
this
case
contained
23
counts
charging
the
four
appellants
with
various
violations
of
the
Income
Tax
Act
at
various
times
during
a
period
exceeding
six
years
and
varying
from
the
earliest
date
of
January
31,
1977,
to
the
latest
date
of
April
29,
1983.
The
information
was
sworn
before
a
Justice
of
the
Peace
on
the
17th
day
of
December
of
an
unspecified
year.
A
summons,
dated
December
21,
1987,
was
issued
by
the
Justice
of
the
Peace
with
respect
to
each
appellant
and
subsequently
served.
The
various
summonses
were
returnable
January
28,
1988,
at
which
time
all
of
the
appellants
appeared
by
counsel.
The
Crown
elected
to
proceed
by
way
of
summary
conviction.
At
this
point,
before
any
plea
was
entered,
and
before
any
certificate
under
subsection
244(4)
of
the
Income
Tax
Act
was
filed,
the
appellants
moved
to
quash
the
information
on
the
ground
that
the
omission
of
the
year
during
which
the
information
was
sworn
rendered
it
a
nullity
and
furthermore,
beyond
the
five
year
limitation
period
specified
in
subsection
244(4)
of
the
Income
Tax
Act.
Archambault,
Prov.
Ct.
J.
held,
in
a
judgment
dated
May
17,
1988,
that,
as
the
limitation
period
for
prosecution
was
five
years
and
the
jurat
failed
to
disclose
that
the
information
was
sworn
within
that
period
with
respect
to
counts
2
to
16
inclusive
and
19
to
22
inclusive,
he
was
obliged,
in
the
absence
of
a
certificate
extending
the
limitation
period,
to
rule
that
the
information
was
invalid
in
so
far
as
those
counts
were
concerned.
As
the
information
was
obviously
sworn
prior
to
January
28,
1988,
the
time
limitation
period
was
not
spent
with
regard
to
at
least
parts
of
the
offences
alleged
in
counts
1,
17,
18
and
23.
He
relied
largely
on
R.
v.
Government
of
Saskatchewan
(1983),
20
Sask.
R.
213
(Sask.
C.A.).
The
Crown
then
tendered
in
evidence
a
certificate
of
the
Minister
issued
under
subsection
244(4)
of
the
Income
Tax
Act
in
order
to
extend
the
time
for
prosecution
of
those
parts
of
counts
1,
17
and
18
which
fell
outside
the
five-year
limitation
period.
The
appellants
objected
to
the
admission
of
the
certificate
into
evidence
on
the
basis
of
an
agreed
statement
of
facts
which
disclosed
that
the
Minister
of
National
Revenue
did
not
personally
possess
any
knowledge
of
the
files
or
material
with
respect
to
the
appellants.
There
was
also
viva
voce
evidence
as
to
the
facts
and
procedures
used
leading
up
to
the
issue
of
the
certificate.
The
certificate
was
issued
by
a
Director-
Taxation
and
the
knowledge
and
the
opinion
referred
to
in
the
certificate
were
not
those
of
the
Minister,
but
of
the
Director-Taxation
who
issued
the
certificate.
The
form
of
the
certificate
was
as
follows:
Pursuant
to
subsection
244(4)
of
The
Income
Tax
Act,
R.S.C.
1952
Chapter
148,
I,
S.W.
Cochrane,
Director-Taxation,
Saskatoon
District
Office
of
the
Department
of
National
Revenue,
Taxation,
do
hereby
certify
that
sufficient
evidence
in
the
opinion
of
the
Minister
to
justify
the
prosecution
of
Precision
Service
and
Engineering
Ltd.,
P.S.
&
E.
Contractors
Ltd.
Arne
Frederik
Petersen,
and
Sergei
Doo-
chenko
of
Prince
Albert,
in
the
Province
of
Saskatchewan,
for
the
offences
set
forth
in
the
form
annexed
as
Exhibit
A,
came
to
his
knowledge
on
the
11th
day
of
March,
1987.
Given
under
my
hand
at
the
City
of
Saskatoon
in
the
Province
of
Saskatchewan
this
2
day
of
February,
1988.
'S.W.
Cochrane'
Director-Taxation,
Saskatoon
District
Office
of
the
Department
of
National
Revenue,
Taxation
On
May
24,
1988
Archambault,
Prov.
Ct.
J.
issued
a
judgment
finding,
with
some
misgivings,
that
the
Director-Taxation
had
the
requisite
power
and
authority
to
prepare
and
issue
the
certificate
under
subsection
244(4)
of
the
Act
and
that
any
knowledge
possessed
by
him
and
required
for
this
purpose
must
be
deemed
to
be
that
of
the
Minister.
He
therefore
ruled
the
certificate
to
be
admissible.
The
appellants
then
applied
to
the
Court
of
Queen's
Bench
for
an
order
of
prohibition
and
certiorari
in
aid
thereof
directed
to
the
Provincial
Court
judge
to
prohibit
him
from
proceeding
with
the
trial
of
counts
1,
12
and
18.
(The
numbers
of
the
counts
do
not
correspond
throughout
the
judgments.
The
parties
advise
us
that
this
need
not
concern
us
—they
are
errors
in
numbering.)
The
Attorney
General
of
Canada
simultaneously
applied
to
the
Queen's
Bench
for
an
order
of
mandamus
compelling
the
Provincial
Court
judge
to
hear
and
determine
counts
2
through
11
inclusive,
13
to
16
inclusive
and
19
to
22
inclusive.
Milliken,
J.
granted
fiats
on
the
applications,
first,
dismissing
the
application
of
the
appellants
for
prohibition,
and
second,
granting
the
order
of
mandamus
compelling
the
Provincial
Court
judge
to
proceed
with
all
of
the
other
counts.
He
found
the
certificate
under
subsection
244(4)
to
be
valid
and
admissible
in
evidence,
and
he
found
that
the
Provincial
Court
judge
should
not
have
dealt
with
the
limitation
period
without
first
giving
the
Crown
the
opportunity
to
introduce
evidence.
Neither
side
objected
to
the
procedure
used,
that
is,
applications
for
prerogative
writs
as
opposed
to
appeals.
This
judgment
is
not
to
be
taken
as
approbation
of
the
procedure
used.
One
other
preliminary
point
warrants
mention.
Subsection
244(4)
provides
that
the
certificate
is
conclusive
evidence
of
the
day
on
which
the
evidence
came
to
the
Minister's
knowledge.
That
raises
the
issue
of
whether
we
can
go
behind
the
certificate.
The
"conclusivity"
provision
applies
only
to
the
contents
of
the
certificate
as
to
date,
not
to
the
validity
of
the
certificate
itself.
The
provision
does
not
preclude
an
accused
from
showing
that
the
purported
certificate
is
not
a
“certificate”
within
the
meaning
of
subsection
244(4)
by
reason
of
its
being
founded
upon
not
the
Minister's
personal
"opinion"
and
"knowledge"
as
subsection
244(4)
requires
it
to
be,
but
on
the
opinion
and
knowledge
of
some
other
person,
namely
one
of
his
officers.
The
issue
of
whether
or
not
a
certificate
under
subsection
244(4)
was
required
to
refer
to
the
knowledge
of
the
Minister
personally,
rather
than
to
an
authorized
officer
of
the
department,
was
first
considered
at
the
Court
of
Appeal
level
by
the
Quebec
Court
of
Appeal
in
Procureur
General
du
Canada
v.
Marcotte,
[1975]
C.A.
570.
The
Court
there
considered
a
certificate
issued
by
an
Assistant
Deputy
Minister
of
National
Revenue-Taxation
which
certified
that
"on
March
14,
1972
sufficient
evidence
came
to
my
knowledge
to
justify
the
prosecution
of
Maurice
Marcotte
.
.
.”.
Mayrand,
J.
ruled
the
certificate
to
be
inadmissible.
He
said
as
follows:
[Translation]
This
knowledge
acquired
by
the
Minister,
the
starting
point
for
the
one-year
limitation
period,
is
a
fact
and
not
a
“power”
or
"duty";
the
knowledge
acquired
by
the
Deputy
Minister
or
one
of
the
Assistant
Deputy
Ministers
cannot
therefore
be
substituted
for
it.
As
the
judge
of
the
Superior
Court
wrote:
It
would
be
inconceivable
that
evidence
that
was
sufficient
in
the
opinion
of
the
Assistant
Deputy
Minister
having
come
to
his
knowledge
and
he
having
done
nothing
for
more
than
one
year,
the
same
evidence
could
come
freshly
to
the
attention
of
the
Deputy
Minister
or
the
Minister,
and
they
could
arrive
at
the
same
opinion
and
cause
a
limitation
period
that
had
already
run
twice
(or
three
times)
to
be
restarted
a
second
(or
even
third)
time.
In
certifying
"that
on
March
14,
1972,
sufficient
evidence
came
to
my
knowledge
to
justify
the
prosecution”,
the
Assistant
Deputy
Minister
did
not
certify
that
on
March
14,
1972,
sufficient
evidence
came
to
the
knowledge
of
the
Minister
to
justify
the
prosecution".
The
Crown
says
that
this
case
is
distinguishable
because
the
certificate
here
refers
not
to
the
knowledge
of
the
issuer,
but
refers
to
the
knowledge
of
the
Minister.
We
reject
that
argument.
Although
Mayrand,
J.
in
his
judgment
did
suggest
that
different
wording
in
the
certificate
might
have
changed
the
result,
the
substance
of
the
judgment
is
unequivocal.
The
knowledge
must
be
the
knowledge
of
the
Minister
personally
and
the
knowledge
of
someone
else
cannot
be
substituted
for
it.
The
use
of
different
words
in
the
certificate
cannot
remedy
the
inherent
defect
of
a
lack
of
personal
knowledge
on
the
part
of
the
Minister.
The
matter
was
next
considered
at
the
appellate
level
by
the
Supreme
Court
of
Alberta,
Appellate
Division
in
Medicine
Hat
Greenhouses
Limited
and
German
v.
The
Queen,
[1979]
1
W.W.R.
296;
45
C.C.C.
(2d)
257.
Lieberman,
J.A.,
at
page
306
(C.C.C.
36),
quotes
with
approval
the
finding
of
the
judge
in
the
court
below
([1977]
5
W.W.R.
532
at
545;
37
C.C.C.
(2d)
287
at
300):
In
my
opinion,
however,
the
acquisition
of
knowledge
by
the
minister
as
contemplated
by
s.
244(4)
is
neither
a
power
nor
a
duty
but
a
fact,
and
consequently
is
not
delegated.
To
say
in
relation
to
the
minister
that
evidence,
as
defined,
came
to
his
knowledge
on
a
given
day
is
a
statement
of
fact.
In
the
sense
used
in
ss.
220
and
221
of
the
Act
and
in
Reg.
900,
a
power
is
the
ability
of
authority
or
capacity
to
act
and
a
duty
is
that
which
one
is
bound
by
legal
obligation
to
do.
The
minister's
acquisition
of
knowledge
is
not
within
either
definition
and
is
not
therefore
delegated.
Ironically,
the
judgment
in
the
Medicine
Hat
case
was
in
favour
of
the
Crown.
In
that
case
the
Minister
did
have
personal
knowledge
of
the
case,
largely
as
a
result
of
demands
on
the
part
of
the
taxpayer.
As
a
result,
the
limitation
period
did
not
begin
to
run
until
the
Minister
personally
acquired
the
knowledge.
The
appellants
had
claimed
that
the
Department
had
had
all
of
the
necessary
information
for
a
long
time
prior
to
the
date
on
which
the
Minister
personally
acquired
knowledge
and
that
the
time
should
have
run
from
the
point
when
the
officers
of
the
Department,
as
delegates
of
the
Minister,
first
acquired
the
knowledge.
They
invoked
the
principle
of
abuse
of
process.
The
Alberta
Court
of
Appeal
rejected
that
argument.
Support
for
the
proposition
that
the
acquisition
of
knowledge
by
the
Minister
and
formulation
of
the
opinion
under
subsection
244(4)
is
a
matter
of
fact
as
opposed
to
the
exercise
of
a
power
or
discharge
of
a
duty
may
be
found
in
the
statement
of
Chouinard,
J.
in
Fee
v.
Bradshaw,
[1982]
1
S.C.R.
608
at
617;
[1982]
C.T.C.
201
at
206:
With
regard
to
the
first
alternative,
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.
As
counsel
for
the
respondents
observed,
[TRANSLATION]
"He
is
simply
stating
a
fact.”
The
reasoning
in
both
Marcotte
and
Medicine
Hat
Greenhouses
was
adopted
and
affirmed
by
the
Quebec
Court
of
Appeal
in
a
recent
judgment,
Procureur
General
du
Canada
v.
Les
Habitations
Périgord
Inc.,
[1988]
2
C.T.C.
64;
88
D.T.C.
6267.
We
agree
with
the
reasoning
on
this
point
in
the
three
appeal
court
decisions.
Counsel
for
the
Crown
argued
that
these
judgments
did
not
properly
take
into
account
the
principles
laid
down
by
the
Supreme
Court
of
Canada
in
R.
v.
Harrison,
[1977]
1
S.C.R.
238
at
245,
[1976]
3
W.W.R.
536
at
542:
.
.
.
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
delegare)
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
the
respective
grants
of
authority,
in
the
discharge
of
ministerial
responsibilities.
Any
other
approach
would
but
lead
to
administrative
chaos
and
inefficiency
.
.
.
Along
the
same
vein,
Crown
counsel
referred
to
and
relied
upon
Carltona,
Ltd.
v.
Commissioners
of
Works,
[1943]
2
All
E.R.
560
(C.A.),
Lewisham
Borough
Council
v.
Roberts,
[1949]
1
All
E.R.
815
(C.A.),
Ahmad
v.
The
Appeal
Board,
Public
Service
Commission,
[1974]
2
F.C.
644
(Fed.
C.A.).
A
similar
argument
was
considered
and
rejected
by
LeBel,
J.A.
in
Les
Habitations
Périgord.
We
agree.
First,
we
are
here
concerned
with
interpretation
of
specific
legislative
provisions
rather
than
application
of
general
legal
principles.
Second,
the
distinction
made
in
Marcotte,
Medicine
Hat,
and
Les
Habitations
Périgord
between
the
fact
of
acquisition
of
knowledge
on
the
one
hand,
and
exercise
of
a
power
or
discharge
of
a
duty
on
the
other
hand,
operates
to
remove
this
case
from
the
application
of
the
principles
in
Harrison.
Furthermore,
application
of
the
principles
in
Harrison
to
the
acquisition
of
knowledge
under
subsection
244(4)
of
the
Income
Tax
Act
would
extend
to
all
employees
of
the
Department
of
National
Revenue,
Taxation
acting
within
the
scope
of
their
authority.
The
time
would
start
to
run
from
the
moment
that
the
first
employee
of
the
Department
acting
within
his
scope
of
authority
acquired
the
knowledge
necessary
to
support
the
opinion
that
there
was
sufficient
evidence
to
justify
a
prosecution.
And
that
is
not
the
date
which
was
certified
in
this
case,
nor
is
it
the
date
which
Crown
counsel
said
should
be
certified.
In
addition,
there
are
sound
policy
reasons
for
maintaining
the
interpretation
put
on
subsection
244(4)
by
the
Alberta
Court
of
Appeal
and
the
Quebec
Court
of
Appeal.
They
are
stated
by
Nichols
J.A.
in
Les
Habitations
Périgord
at
page
701
(D.T.C.
6271):
Si
le
législateur
a
voulu
d'une
part
accorder
à
l'autorité
publique
un
moyen
efficace
de
poursuivre
ceux
qui
se
rendent
coupables
de
fraude
fiscale,
il
a
aussi
voulu
que
le
justiciable
ne
reste
pas
indéfiniment
sous
la
menace
de
poursuites.
ll
fallait
donc
fixer
un
point
de
départ
à
cette
prescription
exceptionnelle.
Non
pas
un
point
de
départ
que
l'administration
pourrait
fixer
à
sa
guise
mais
un
point
de
départ
que
le
justiciable
pourrait
lui-même
connaître
avec
certitude.
Car
à
quoi
servirait
une
prescription
si
celui
en
faveur
de
qui
elle
est
édictée,
ne
peut
savoir
quand
elle
commence.
Pour
fixer
ce
point
de
départ
il
fallait
donc
se
replier
sur
un
fait
certain.
Le
législateur
a
choisi
de
l'arrêter
au
jour
où
le
Ministre,
selon
qu'en
attesterait
un
certificat
juridiquement
concluant,
aurait
acquis
la
conviction,
à
sa
connaissance,
que
la
preuve
est
suffisante
pour
intenter
des
poursuites.
Si
le
pouvoir
général
de
délégation
permettait
aux
officiers
et
fonctionnaires
du
Ministère
d'agir
au
lieu
et
place
du
Ministre,
le
point
de
départ
de
la
prescription
pourrait
varier
aux
caprices
de
la
conviction
personnelle
de
tous
ceux
qui
sont
autorisés
par
la
Loi
à
agir
au
nom
du
Ministre.
Lorsque
la
loi
exprime
un
pouvoir
exceptionnel
et
lorsqu'il
s'agit
par
surcroît
d'une
matière
de
prescription,
je
ne
puis
me
convaincre
qu'il
faille,
comme
le
propose
l'appelante,
recourir
à
des
principes
d'interprétation
larges
et
généreux.
[Translation]
While
Parliament
intended,
first,
to
provide
the
public
authorities
with
an
effective
method
for
prosecuting
those
who
are
guilty
of
tax
fraud,
it
also
intended
that
those
subject
to
this
provision
not
remain
indefinitely
under
threat
of
prosecution.
It
was
therefore
necessary
to
determine
a
starting
point
for
this
exceptional
limitation
period.
Not
a
starting
point
that
the
administration
could
set
where
it
chose,
but
a
starting
point
that
those
affected
by
it
could
themselves
determine
with
certainty.
What
would
be
the
purpose
of
having
a
limitation
period
if
those
in
whose
favour
it
was
enacted
could
not
know
when
it
commences?
In
order
to
set
this
starting
point,
there
must
be
a
determined
fact
to
which
it
refers.
Parliament
chose
to
set
it
at
the
day
when
evidence
sufficient
in
the
opinion
of
the
Minister
to
justify
a
prosecution
came
to
his
knowledge,
as
attested
by
a
legally
conclusive
certificate.
If
the
general
power
of
delegation
permitted
the
officers
and
officials
of
the
Department
to
act
in
the
place
and
stead
of
the
Minister,
the
starting
point
for
the
limitation
period
could
vary,
at
the
caprice
of
the
personal
determination
of
everyone
who
is
authorized
by
the
Act
to
act
on
behalf
of
the
Minister.
When
the
Act
expresses
an
exceptional
power,
and
further,
when
this
is
a
question
of
a
limitation
period,
I
cannot
be
convinced
as
the
appellant
has
argued
that
it
is
necessary
to
apply
the
principles
of
broad
and
liberal
interpretation.
Finally,
if
we
are
wrong
in
our
conclusions
above,
the
certificate
in
this
case
does
not
meet
the
requirements
of
subsection
244(4).
The
certificate
simply
states
that
the
knowledge
of
the
evidence
came
to
the
attention
of
the
Minister
on
March
11,
1987.
It
does
not
say
that
that
date
was
the
first
date
on
which
the
knowledge
came
to
the
attention
of
the
Minister.
As
noted
by
LeBel,
J.A.
in
Les
Habitations
Périgord
at
page
68
(D.T.C.
6269):
.
.
.
Il
aurait
fallu
identifier
le
jour
où
avait
lieu
une
premiere
prise
de
connaissance.
Si
l'on
veut
donner
a
l’article
244
une
effet
qui
assure
une
certain
diligence
dans
l’exercice
des
droits
du
Ministère
et
le
respect
de
ceux
des
contribuables,
la
date
de
connaissance
attestée
doit
être
celle
où
est
acquisé
la
premiere
connaissance.
Autrement,
des
poursuites
pourraient
être
engagées
n'importe
quand
et
a
l'initiative
de
n'importe
qui.
Le
certificat
produit
ici
peut
être
interprété
comme
visant
l'un
des
jours
où
la
connaissance
aurait
pu
être
acquisé.
Cela
ne
suffit
pas:
en
utilisant
le
terme
“le
jour",
que
l'on
atteste
qu'il
s'agit
bien
du
premier
moment
auquel
cette
connaissance
du
fait
a
été
acquisé.
[Translation]
.
.
.
It
was
necessary
to
identify
the
day
on
which
the
information
first
became
known.
If
section
244
is
to
be
given
an
effect
which
will
ensure
some
diligence
in
the
exercise
of
the
Minister's
rights
and
respect
of
the
taxpayers'
rights,
the
date
attested
in
the
certificate
must
be
the
date
on
which
knowledge
was
first
acquired.
Otherwise,
prosecutions
could
be
undertaken
at
any
time
and
at
the
whim
of
anyone.
The
certificate
filed
in
this
case
may
be
interpreted
as
referring
to
one
of
the
days
on
which
knowledge
was
acquired.
That
is
not
enough:
as
the
expression
"the
day”
is
used,
the
attestation
must
be
to
the
first
moment
when
knowledge
of
the
fact
was
acquired.
Accordingly,
the
certificate
in
question
does
not
qualify
as
a
"certificate"
within
the
meaning
of
subsection
224(4)
and
is
not
admissible
in
evidence.
It
is
necessary
to
deal
with
one
other
matter
raised
by
the
appellants.
In
his
judgment
dated
May
17,
1988,
the
Provincial
Court
judge
held
as
follows:
As
the
information
was
obviously
sworn
prior
to
January
28th,
1988,
the
time
limitation
was
not
spent
with
regards
to
Counts
number
1,
17,
18
and
23
(Count
12
was
added
thereafter),
and
accordingly
the
Information
is
valid
insofar
as
they
are
concerned.
As
I
understand
the
ratio
in
Regina
vs.
Government
of
Saskatchewan
et
al,
as
long
as
the
Information
discloses
on
its
face
that
the
offence
was
committed
within
the
time
limit,
the
Information
is
valid
and
it
becomes
a
matter
to
be
determined
on
the
evidence
whether
or
not
this
is
in
fact
the
case.
The
appellants
argued
that
the
judge
treated
these
counts
as
continuing
offences,
parts
of
which
fell
within
the
five
year
limitation
period
set
out
in
subsection
244(4)
of
the
Income
Tax
Act.
They
argue
that
the
judge
ought
to
have
amended
the
jurat
on
the
information
to
read
that
it
was
sworn
on
December
17,
1987
and
then
applied
the
five
year
prescription
period
by
severing
those
portions
of
the
counts
falling
outside
of
that
period:
Dressier
v.
Tallman
Gravel
and
Sand
Supply
Ltd.
(1963),
2
C.C.C.
25
(Man.
C.A.);
R.
ex.
rel.
Hoddinott
v.
Wooster
(1959),
123
C.C.C.
255
(Sask.
C.A.);
R.
v.
Slavik
(1955),
111
C.C.C.
399.
In
our
view
the
Provincial
Court
judge
properly
applied
Regina
v.
Government
of
Saskatchewan
(1983),
20
Sask
R.
212,
a
judgment
of
this
Court.
On
the
face
of
the
information
the
offence
may
have
been
committed
before
the
expiration
of
the
limitation
period.
It
then
becomes
a
matter
for
the
trial
judge
to
decide
on
the
evidence
whether
in
fact
the
offence
was
out
of
time.
That
reasoning
applies
whether
or
not
one
characterizes
the
offences
as
"continuing
offences"
or
"global
offences"
(the
appellant's
terminology).
The
appeal
against
the
order
granting
mandamus
is
allowed
and
the
judgment
of
the
Provincial
Court
dated
May
17,
1988
is
reinstated.
The
appeal
against
the
order
dismissing
the
application
for
prohibition
is
dismissed.
The
result
is
that
the
Crown
may
proceed
with
counts
1,
12,
17,
18
and
23
only
in
so
far
as
they
fall
within
the
five-year
limitation
period
in
subsection
244(4)
of
the
Act.
The
other
counts
stand
dismissed
as
being
out
of
time.
Appeal
allowed
in
part.
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