Alan Tyler v. Minister of National Revenue, 91 DTC 5022, [1991] 1 CTC 13 (FCA)

Stone, J.A.:—This is an appeal from a judgment of the Trial Division rendered on December 6, 1988, [1989] 1 C.T.C. 153; 89 D.T.C. 5044] wherein an application for relief under section 18 of the Federal Court Act, R.S.C. 1985, c. F-7, was dismissed. The appellant sought to prohibit the respondent from demanding information, pursuant to paragraph 231.2(1)(a) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the"Act"), from or concerning him and from communicating the same to any other person, and to require the return of information and documents already so obtained.

Background

In July 1987, the appellant and others were charged with the offences that, between October 1, 1982, and June 6, 1987, they imported into Canada and trafficked in a narcotic contrary to subsection 5(1) and 4(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1 and section 312 of the Criminal Code and that, in the same period, they conspired and agreed to have in possession property or things, or the proceeds of property or things of a value exceeding $1000 knowing the same to be derived directly or indirectly from the commission in Canada of the offence of trafficking in a narcotic contrary to subsection 4(1) of that Act and section 312 of the Criminal Code.

Shortly after the existence of these charges came to the notice of Revenue Canada via a newspaper article of September 4, 1987, the Department began to investigate the possibility that the appellant had not reported all of his income in earlier years. Income tax returns on file were reviewed, and documents seized by the RCMP in the criminal proceedings, and made available to Revenue Canada for the purpose, were inspected. Upon request of the RCMP, Revenue Canada furnished orally a rough net worth of the appellant and, later, a draft net worth calculation which was based, in part, upon information gained from the appellant in an interview conducted by the Department. The Department acted in both instances on the prior legal advice of the Department of Justice.

Desiring access to more information than was thus available, Revenue Canada next decided to serve the appellant with a set of ''requirements" pursuant to paragraph 231.2(1)(a) of the Income Tax Act, which reads:

231.2 (1) Notwithstanding any other provision of this Act, the Minister may, subject to subsection (2), for any purpose related to the administration or enforcement of this Act, by notice served personally or by registered or certified mail, require that any person provide, within such reasonable time as is stipulated in the notice,

(a) any information or additional information, including a return of income ora supplementary return; or

Seven "requirements" dated October 15, 1987, were served on November 2, 1987. The appellant was required to respond within thirty days. Several of these requirements call for a "signed statement of your personal and living expenses" while others require a "signed statement of your assets and liabilities” as at December 31, 1983, 1984, 1985 and 1986. These latter statements are to show certain assets separately, and must give “full details of any other assets owned by you, whether or not registered in your name" as at these December 31 year ends. Each of the demands conclude as follows:

This information is to be certified by you as being correct in every respect to the best of your knowledge and belief and is to be forwarded to the District Taxation Office, 36 Adelaide St. East, Toronto, Ontario, MSC 117.

If this requirement is not complied with, you will be liable to prosecution without further notice. Subsection 238(2) of the said Act provides that a person who fails to comply with this requirement is guilty of an offence and liable on summary conviction to a fine of not less than $200.00 and not more than $10,000.00 or both the fine and imprisonment not exceeding six months. Further, subsection 231.2(7) also provides that where a person is found guilty of an offence under subsection 238(2) for failing to comply with a requirement, the court may make such order as it deems proper in order to enforce compliance with the requirement. [1]

It is apparent that the appellant will be required by his signed statements, under pain of prosecution, to give, inter alia, correct details of assets on hand at different times during the period the offences are alleged to have been committed (between October 1, 1982, and June 6, 1987), which statements will include details of property of the kind the appellant is charged with possessing, i.e., "property or things or the proceeds of property or things of a value exceeding one thousand dollars ($1000.00) knowing the same to be derived directly or indirectly from the commission in Canada of the offence of trafficking in a narcotic . . .” contrary to subsection 4(1) of the Narcotic Control Act.

The appellant took the position that he is" unwilling to furnish any financial information [pursuant to the paragraph 231.2(1)(a) demands] which may be used as evidence against me" [2] in the criminal proceedings. Accordingly, on November 26, 1987, he commenced an application in the Trial Division for the following relief :

(a) a Writ of Prohibition, or relief in the nature of prohibition, directed against the Respondent, the Minister of National Revenue, to prohibit the Minister from demanding information from or concerning the Applicant under section 231.2(1)(a) of the Income Tax Act, on the grounds that the Minister is acting for a purpose unrelated to the administration or enforcement of the Income Tax Act,

(b) an order directing the Minister of National Revenue to return any and all documents or information already obtained under subsection 231.2(1)(a) of the Income Tax Act concerning the Applicant and prohibiting the Minister from communicating any knowledge thereof to any other person, and

The application was dismissed by the Trial Division with costs on December 6, 1988, Mr. Justice Strayer concluding that subsection 231.2(1) had been properly invoked and that the voluntary communication of the information obtained pursuant thereto to peace officers engaged in prosecuting criminal offences for which charges have already been laid should not be prohibited. Arguments based upon alleged infringement of the appellant's rights under sections 7, 8, 11(c), 11(d) and 13 of the Canadian Charter of Rights and Freedoms (the Constitution Act, 1982, Part 1) were also rejected.

The Issues

The issues raised on this appeal, basically as formulated by the appellant, are that the trial judge:

(a) failed to draw the inference from the facts that the actions of the respondent were done, in part, to assist the RCMP, and hence the demands upon the respondent under the Income Tax Act were invalid;

(b) failed to find that the appellant's rights under sections 7, 8, 11(c) and 11(d) of the Charter of Rights and Freedoms were being infringed by the actions of the respondent, and failed to provide an appropriate remedy under section 24 of the Charter; [3]

(c) failed to hold subsection 241(3) of the Income Tax Act to be of no force and effect pursuant to subsection 52(1) of the Constitutional Act, 1982.

It will also be necessary to deal with a further argument advanced by the appellant to the effect that the trial judge's construction of subsection 241(3) of the Income Tax Act was erroneous.

Discussion

Subsection 241(3) issue (constitutionality)

I shall deal first with the last of the enumerated issues. Subsection 241(1), (2) and (3) of the Income Tax Act read:

241. (1) Except as authorized by this section, no official or authorized person shall

(a) knowingly communicate or knowingly allow to be communicated to any person any information obtained by or on behalf of the Minister for the purposes of this Act or the Petroleum and Gas Revenue Tax Act,

(b) knowingly allow any person to inspect or to have access to any book, record, writing, return or other document obtained by or on behalf of the Minister for the purposes of this Act or the Petroleum and Gas Revenue Tax Act, or

(c) knowingly use, other than in the course of his duties in connection with the administration or enforcement of this Act or the Petroleum and Gas Revenue Tax Act, any information obtained by or on behalf of the Minister for the purposes of this Act or the Petroleum and Gas Revenue Tax Act.

(2) Notwithstanding any other Act or law, no official or authorized person shall be required, in connection with any legal proceedings,

(a) to give evidence relating to any information obtained by or on behalf of the Minister for the purposes of this Act or the Petroleum and Gas Revenue Tax Act, or

(b) to produce any book, record, writing, return or other document obtained by or on behalf of the Minister for the purposes of this Act or the Petroleum and Gas Revenue Tax Act.

(3) Subsections (1) and (2) do not apply in respect of criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information, under an Act of the Parliament of Canada, or in respect of proceedings relating to the administration or enforcement of this Act or the Petroleum and Gas Revenue Tax Act.

Even though the issue respecting the constitutionality of subsection 241(3) was not raised in the Trial Division, the appellant seeks to raise it before this Court. After launching the appeal, the appellant filed a“ "Notice of Constitutional Question per Rule 1101" [4] dated April 3, 1990 which reads:

Take notice that the Appellant intends to raise the question of the constitutionality of subsection 241(3) of the Income Tax Act in the above noted appeal, stating that said section is of no force and effect due to subsection 52(1) of The Constitution of Canada, and is also unconstitutional due to its violation of the Appellant's rights under ss. 7, 8, 11(c), 11(d) and 13 of The Charter of Rights and Freedoms.

Because only the construction of the subsection 241(3) was before the Trial Division and not its constitutionality, the respondent objects to the issue being dealt with in that it is raised for the first time upon the appeal. As a general rule, an appellate court ought not to deal with a point so raised "unless it be clear that, had the question been raised at the proper time, no further light could have been thrown upon it": Lamb v. Kincaid (1907), 38 S.C.R. 516, at page 539 as cited by Duff, C.J. in Thomson v. Lambert, [1938] S.C.R. 253, at page 269.

I am in agreement with the respondent's submission that it might well suffer some prejudice if the Court were to deal with the issue when it was not raised below. That prejudice would lie in the fact that if the Court were to give effect to the appellant's contention that the subsection was inconsistent with the Charter, the respondent would be faced with having to show, if it could, pursuant to section 1 of the Charter, that the subsection was nevertheless justified in a free and democratic society, even though it has had no opportunity to present any evidence of legislative facts which might enable it to discharge the section 1 onus. The fact is that section 1 evidence was not presented in the Trial Division for the simple reason that no issue as to the constitutionality of subsection 241(3) was there raised.

The importance of the existence of pertinent facts to a Charter decision was recently underscored by the Supreme Court of Canada in MacKay v. Manitoba, [1989] 2 S.C.R. 357; 61 D.L.R. (4th) 385, per Cory, J. at 361-62 (D.L.R. 388):

Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. . . .Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.

The Supreme Court of Canada has also refused to permit a section 7 issue to be raised for the first time before that Court. In R. v. Amway Corp., [1989] 1 S.C.R. 21; 56 D.L.R. (4th) 309, at 42 (D.L.R. 324), Sopinka, J. said:

In my opinion, given the importance of section 7 of the Charter, a decision should not be rendered with respect to its operation without the opinion of the courts below and without affording possible interveners the opportunity to participate in the proceedings.

In the circumstances, I would decline to deal with the issue respecting the constitutionality of subsection 241(3) of the Income Tax Act.

Inferences issue

As I understand it, the appellant quarrels with the trial judge’s finding that the information sought pursuant to the paragraph 231.2(1)(a) “ requirements” was not being sought at the request of the RCMP for the purpose of prosecuting the criminal charges referred to above. The trial judge rejected this submission, characterizing the evidence relied upon as consisting of but “a flimsy tissue of innuendos” (page 156 (D.T.C. 5046)). He specifically declined to draw an inference that the tax audit activities were solely related to the criminal charges because they were undertaken after the Department became aware that those charges had been laid. I can see no proper ground for interfering with the refusal of the trial judge to draw an inference that the information being sought by the respondent under the" requirements’ was for the purpose of prosecuting those charges. The learned trial judge found that the "requirements" are for a purpose related to the administration or enforcement of the Income Tax Ac^, [5] and it was quite within his province to so view the matter. Nowhere in the record is there the slightest suggestion that the respondent was not acting solely for a purpose related to the administration or enforcement of the statute.

Charter violations issues

The appellant contends that communication of the signed statements to the respondent or to the police would infringe rights he possesses under sections 7, 8 and 11(c) of the Charter and asks this Court to grant an "appropriate and just" remedy under subsection 24(1) of the Charter [6] . It thus becomes necessary to deal with the appellant's contention that his rights under sections 7, 8 and 11(c) would be so infringed and, if so, to determine whether the sought after relief is available in the circumstances.

I begin by addressing the submissions that rights guaranteed by sections 8 or 11(c) are being infringed. This approach would seem to be required by the decided cases which are to the effect that rights protected by sections 8 to 14 of the Charter are illustrative of the greater right guaranteed in section 7: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, per Lamer, J. speaking for the majority, at 502-503; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; 67 D.L.R. (4th) 161, per Lamer, J. at 442 (D.L.R. 175), per Wilson, J. at 470 (D.L.R. 216), per La Forest, J. at 536-37 (D.L.R. 264), per L’Heureux-Dubé, J. at 570-71 (D.L.R. 290), per Sopinka, J. at 601 (D.L.R. 304). Thus, if we were to conclude that the action of the respondent in requiring the signed statements to be made or in communicating them to the police would infringe a right protected by section 8 or section 11(c), it would not be necessary to consider whether a right guaranteed under section 7 would also be infringed.

Section 8

The appellant submits that the trial judge erred in deciding that the procedure authorized by paragraph 231.2(1)(a) of the Income Tax Act would not amount to a" seizure” within the meaning of section 8 of the Charter. Section 8 reads:

8. Everyone has the right to be secure against unreasonable search or seizure.

It was the view of the trial judge that (page 160 (D.T.C. 5049)):

There is no physical intrusion involved. The taxpayer is required by law to provide the information demanded of him, but he is at liberty to challenge, as he is doing in these proceedings, the validity of the requirements before providing the information.

I agree that the appellants contention must be rejected. InMcKinlay Transport Ltd. v. Canada, [1990] 1 S.C.R. 627; [1990] 2 C.T.C. 103; 90 D.T.C. 6243, the Supreme Court of Canada concluded that the subsection 231(3) (the predecessor of subsection 231.2(1)) procedure was “reasonable” and hence not a violation of section 8. That case would seem to be conclusive of the matter.

Section 11(c)

I cannot agree either that the situation before us indicates an infringement of a section 11(c) right. That section reads:

11. Any person charged with an offence has the right

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence.

It was the view of the trial judge (at page 158 (D.T.C. 5047)) that the appellant

. . . is not being compelled to answer "in proceedings against [him] in respect of [an] offence” as required by paragraph 11(c) of the Charter. There is no offence in issue in the tax audit. The common law protection against self-incrimination did not extend to such matters prior to the Charter, nor has the protection of paragraph 11(c) been so regarded since the adoption of the Charter.

If I have properly understood this view, the section 11(c) protection cannot avail the appellant because, in any event, the charges are not related to a failure of the appellant to duly report an amount or amounts of taxable income and to pay the tax exigible thereon under the Income Tax Act. No“ "proceedings" of that nature were underway at the relevant time. Rather, the charges were laid independently of that statute, and allege the commission of offences under the Narcotic Control Act and the Criminal Code.

It seems to be generally accepted that the protection afforded by section 11(c) is a protection against testimonial compulsion of an accused "charged with an offence": see e.g. Thomson Newspapers, supra, per Wilson, J. at page 481 (D.L.R. 200), and per Sopinka, J. at page 601 (D.L.R. 295). Accordingly, section 11(c) itself would not protect against the communication to the respondent or to the police of the signed statements here in issue. The trial judge, though expressing certain views on the subject, found it unnecessary to decide whether the appellant is to be considered "a witness” (page 158 (D.T.C. 5047)).

Section 7

It becomes necessary to examine the appellant's ultimate Charter right contention, namely, that section 7 protects him against making the signed statements to the respondent or the communication of the same to the police in the circumstances of this case. That section reads:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The trial judge had no difficulty in deciding that section 7 could not avail the appellant. He said (at page 160 (D.T.C. 5049)):

With respect to section 7, I am doubtful that it provides additional procedural protection in an area specifically covered by the other legal rights in sections 8 to

14. Counsel has certainly made no compelling argument that some constitutional protection exists in these circumstances beyond those provided in the specific sections of the Charter I have already discussed.

It seems clear, however, that section 7 may provide in certain contexts a residual protection over and above that contained in sections 8 to 14 of the Charter. I would refer here to what was said, for example, by La Forest, J. in the Thomson Newspapers, supra, at page 537 (D.L.R. 243):

Like my colleagues, I am prepared to agree that section 7 of the Charter may in certain contexts at least provide residual protection to the interests the right is designed to protect that goes beyond the specific protection provided by sections 11 (c) and 13.

In my opinion the compulsion of these statements by the respondent pursuant to paragraph 231.2(1)(a) would result in a deprivation of the appellant's liberty and security of the person under section 7. This approach would seem to accord with the analysis contained in Thomson Newspapers, supra, per Wilson, J. at pages 459-61 (D.L.R. 185), per La Forest, J. at page 536 (D.L.R. 257), per L’Heureux-Dubé, J. at pages 572-73 (D.L.R. 272).

I agree, however, that in the context of the tax audit the deprivation does not amount to a breach of the principles of fundamental justice. In the tax audit per se there is no suspect and no accused. The procedure is entirely administrative in nature. See e.g. McKinlay v. Canada, supra, per La Forest, J. at page 115 (S.C.R. 650; D.T.C. 6251).

It remains to be decided whether the deprivation of liberty and security of the person would accord with the principles of fundamental justice given the fact that concurrent criminal charges laid under other federal enactments are pending in the courts. In my view, any communication of the signed statements to the police in these circumstances would amount to "conscripting" the appellant against himself in the existing criminal proceedings in a way that would not accord with the principles of fundamental justice in that it would deprive him, as an accused person, of his right to silence.

That an accused has the right to remain silent has been accepted as a basis tenet of our legal system and, as such, a principle of fundamental justice. I take guidance from what has been said in several of the decided cases, including R. v. Woolley (1988), 40 C.C.C. (3d) 531; 63 C.R. (3d) 333 (Ont. C.A.), per Cory, J.A. (as he then was), at 539:

Section 7 of the Charter provides that a person is not to be deprived of his liberty except in accordance with the principles of fundamental justice. Those fundamental principles are to be found in the basic tenets of our legal system. It has always been a tenet of our legal system that a suspect or accused has a right to remain silent at the investigative stage of the criminal process and at the trial stage. At the very least, it is clear that an accused person is under no legal obligation to speak to police authorities and there is no legal power in the police to compel an accused to speak: see for example, R. v. Esposito (1985), 24 C.C.C. (3d) 88 at p. 94, 53 O.R.

(2d) 356 at p. 362, 49 C.R. (3d) 193 at pp. 200-1 (C.A.); leave to appeal to the Supreme Court of Canada refused February 24, 1986, see C.C.C. & O.R. loc. cit., 65 N.R. 224n; R. v. Manninen (1983), 8 C.C.C. (3d) 193 at p. 199, 3 D.L.R. (4th) 541, 48 O.R. (2d) 731 (Ont. C.A.).

The right to remain silent is a well-settled principle that has for generations been part of the basic tenets of our law.

In Thomson Newspapers, supra, Sopinka, J. said, at page 599 (D.L.R. 292):

The right to remain silent is the basis for the non-compellability of the accused as a witness at trial but it extends beyond the witness box. In R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.), at p. 94, Martin J.A. outlined its scope:

The right of a suspect or an accused to remain silent is deeply rooted in our legal tradition. The right operates both at the investigative stage of the criminal process and at the trial stage.

I would refer as well to what was said by La Forest, J., at page 537 (D.L.R. 243):

. . . the privilege or right against self-incrimination, sometimes referred to as the right to silence, forms an integral part of the principles of fundamental justice under our legal system.

and, at page 540 (D.L.R. 246):

I agree with Sopinka J. that an accused's right to silence must extend beyond the trial itself, but I do not think it must be extended to those who are ordered to testify in a proceeding such as that provided by s. 17 of the Combines Investigation Act.

As I see it, the communication of such compelled information to the police while the charges are outstanding, would deny to the appellant his right to silence contrary to the principles of fundamental justice. [7]

I wish to make two further observations at this juncture. First, that we are not on this appeal concerned with the admissibility in subsequent proceedings of evidence compulsorily required to be given pursuant to the Income Tax Act or otherwise. That question is simply not reached. Secondly, of importance to my conclusion that communication of compelled information to the police would deny the appellant his right to silence contrary to the principles of fundamental justice is that the charges under the other federal enactments were laid prior to the date the paragraph 231.2(1)(a) procedure was invoked. The question whether the result might be different had the charges been laid subsequent to that date does not arise on this appeal.

Charter remedy

It remains for me to determine whether, in the particular circumstances of this case, it is open to the Court to grant an "appropriate and just” remedy under section 24 of the Charter. I must ask myself at the outset whether the granting of such a remedy would, in effect, amount to a thinly disguised attack upon the constitutionality of subsection 241(3) itself when, as I have already said, such an issue was not properly raised in the present proceedings. In my view, this would not be the case. The power to withhold or to communicate the signed statements is not one that is compelled by that subsection; it is, rather, a mere administrative power. The respondent stands in the position of a volunteer, deriving no authority perse from subsection 241(3). That subsection simply removed the prohibitions contained in subsections (1) and (2) “in respect of criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information, under an Act of the Parliament of Canada or in respect of proceedings relating to the administration or enforcement of this Act or the Petroleum and Gas Revenue Tax Act”.

I must also ask myself whether the anticipated Charter infringement is such as to allow the Court to grant a subsection 24(1) remedy. The courts, including both divisions of the Federal Court of Canada, have not been entirely in agreement on the point. Some cases hold, indeed, that a court can grant a remedy only if the infringement has already occurred (see, e.g. Bowen v. Minister of Employment and Immigration, [1984] 2 F.C. 507; 58 N.R. 223 (C.A.), Yri-York Ltd. v. A.-G. Canada, [1988] 3 F.C. 186; 83 N.R. 195 (F.C.A.), while others have come to the opposite conclusion (see, e.g. Kravets v. Minister of Employment and Immigration, [1985] 1 F.C. 434 (T.D.)).

While the Supreme Court of Canada has yet to render a definitive judgment, it seems to me from what has been said in that Court so far that an anticipated infringement of a Charter right may be made the subject of a subsection 24(1) remedy in limited circumstances. Thus in Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441; 59 N.R. 1 (not cited in Yri-York), Dickson, C.J., for the majority, stated at page 456: "A person, whether the government or a private individual, cannot be held liable under the law for an action unless that action causes the deprivation, or threat of deprivation, of legal rights"; and, at page 486, Wilson, J. spoke of the need to "establish at least a threat of violation if not an actual violation”. More recently, R. v. Vermette, [1988] 1 15.C.R. 985; 84 N.R. 296 (rendered subsequent to Yri-York), relying on Operation Dismantle, further illustrates the willingness of the Supreme Court of Canada to take a somewhat expansive view of the power contained in subsection 24(1) to grant a remedy. La Forest, J., speaking for the Court, noted, at page 992, that a remedy under that subsection is available: ”. . . not only in the case of an actual interference with the guaranteed rights, but also when an apprehension of such an interference at a future trial can be established by an applicant."

In my view, unless a remedy is available in the circumstances, the appellant's right to remain silent will be infringed by the communication of the signed statements or any of their contents to the police while the criminal charges remain outstanding in the Courts. The power to prevent such fundamental unfairness occurring in our criminal justice system is, I think, provided for in subsection 24(1).

Subsection 241 issue (interpretation)

I come to a final point of substance raised by the appellant. He contends that the construction placed upon subsections 241(1), (2) and (3) of the Income Tax Act by the learned trial judge that, fairly read, they do not prohibit communication of the signed statements to the police, was in error. With respect, the learned trial judge, in my view, was quite right in rejecting this submission. I would do so also, and for the reasons he has given.

Summary

In summary, the learned trial judge (a) did not err in refusing to draw an inference from the facts that the actions of the respondent were done, in part, to assist the RCMP; (b) did not err in finding that the appellant's rights under either section 8 or section 11(c) of the Charter were not infringed; (c) did err in failing to find that the appellant's right to remain silent under section 7 of the Charter would be infringed by the communication to the RCMP of the signed statements required under paragraph 231.2(1)(a) of the Income Tax Act at any time while the charges in question remain outstanding in the courts, and should be prohibited; (d) did not err in his interpretation of subsections 241(1),

(2) and (3) of the Income Tax Act, or in failing to hold subsection 241(3) to be of no force and effect in that the constitutional validity of that subsection was not raised in the Trial Division.

Disposition

I would, therefore, allow the appeal with costs both here and in the Trial Division, set aside the judgment of the Trial Division rendered December 8, 1988, and would make an order prohibiting the respondent from communicating to the RCMP or to any other person the signed statements of the appellant demanded by the respondent pursuant to the October 15,1987" requirements" under paragraph 231.2(1)(a) of the Income Tax Act, or of any of the contents thereof, at any time while the charges against the appellant under subsections 4(1) and 5(1) of the Narcotic Control Act and under section 312 of the Criminal Code remain outstanding in the courts.

Pratte, J.A.:—I agree.

Hugessen, J.A.:—I agree.

Appeal allowed.