BETWEEN:
NASEER AHMAD CHAUDHRY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS
FOR JUDGMENT
Bocock J.
[1]
The nature of this appeal may be summarized
briefly. There are no facts in dispute. No arguments were advanced before the
Court regarding the specifics of the reassessment made under the Income Tax
Act, RSC, 1985, c. 1 (5th Supp.) (the “Act”).
Instead the purely legal argument of the Appellant, advanced through his agent,
Mr. Chris Shannon, was that the legislation comprising the Act per se was
not properly before the Court.
[2]
Some expansion and summary of this unique
argument is needed. The appellant contends there is no basis before the Court
that the Minister has reassessed (or for that matter, assessed) Mr. Chaudhry
according to the official version of the Act as passed by
Parliament and certified by the Clerk of Parliament.
[3]
Mr. Chaudhry’s agent argues that, sections 3, 4,
5, 6 and 7 of the Publication of Statutes Act, RSC, 1985 c S-21 decrees
how laws are certified, recorded and published once Parliament has enacted
them. He concludes that such requirements have not been met on the basis which
follows.
[4]
Firstly, section 3 of the Publication of Statutes
Act provides that all original Acts passed by Parliament and assented to by
the Governor General shall remain in the custody of the Clerk of the Senate of
Canada.
[5]
The Clerk of the Senate shall furnish to the
Queen’s Printer a certified copy of every Act of Parliament as soon as it has
received royal assent. The Queen’s Printer shall then print and distribute the
statutes under various provisions of sections 9 to 14 of the Publication of
Statutes Act.
[6]
The Clerk of the Senate shall affix his seal to
copies of all Acts required to be produced before the courts of justice, either
within or outside Canada. These certified copies are deemed to be duplicate
originals and to be evidence of the context of those Acts. Specifically, the
relevant sections provide as follows:
4. The Clerk of the Parliaments shall have a seal of office and
shall affix the seal to certified copies of all Acts required to be produced
before courts of justice, either within or outside Canada,
and in any other case in which the Clerk of the Parliaments considers it
expedient.
5. All copies of the Acts certified by the Clerk of the
Parliaments pursuant to section 4 shall be held to be duplicate originals
and to be evidence of those Acts and of their contents as if printed
under the authority of Parliament by the Queen’s Printer. [underlining added]
[7]
Additionally, the Clerk of the Senate shall also
furnish, to every person applying for a copy, a certified copy of any Act in his
custody pursuant Section 7 of the Publication of Statutes Act. These
copies are deemed to be true copies of the Act passed by the Parliament. An
excerpt from that provision is as follows:
7. The Clerk of the Parliaments shall furnish certified copies of
any of the Acts mentioned in section 3 … to any person applying for a copy … […]
[8]
With an eye turned to the conjunctive effect of Sections
4 and 5, Mr. Chaudhry’s agent submits that:
a)
A sealed version of the Act is “required
to be produced before courts of justice …, within … Canada”, and;
b) Only “copies of the Acts certified by the Clerk…pursuant to
section 4 shall be held … to be evidence of those Acts and of their
contents as if printed under the authority of Parliament by the Queen’s
Printer.”
[9]
In short, the appellant’s agent states that the
Minister has not produced a certified copy of the Act nor has respondent’s
counsel made a request of the Clerk of the Senate for a copy.
[10]
On that basis, the Court has no evidence that
the reassessment against the appellant has been raised by the Minister pursuant
to validly subsisting and promulgated legislation. Reference to third party-published
copies or website reproductions are simply not sufficient to legally comply
with the requirements imposed under the Publication of Statutes Act.
[11]
The appellant’s agent, in response to the
Court’s queries, confirmed that there was no legal authority to support the
argument other than a plain reading of the statutes. He also confirmed there
were no further grounds of appeal, including those otherwise referenced in the
Notice of Appeal, but ignored by the agent before the Court.
[12]
The issue remains: must the Senate Clerk’ certified
copy of the Act be before the Court? If such a certified copy need not
be tendered before the Court, then the supplementary question remains: what
legal authority does the Court have to reference other sources and receive such
sources as the current and effective version of the Act? The Court has
elected to address these arguments by written judgement for two reasons: the
current absence of such a decision in the jurisprudence and the frequency and
number of amendments to this, Parliament’s largest Act.
[13]
For the reasons which follow, the appeal is
dismissed. There exists legal certainty to afford the Court authority to rely
upon a publically accessible and legally authenticated version of the Act and,
for that matter, other legislation and regulations of Parliament.
[14]
Firstly, sections 2 and 26 of the Legislation
Revision and Consolidation Act, RSC, 1985, c S-20 (“LRCA”)
allow the Minister of Justice and Attorney General of Canada (the “Minister”) to maintain a consolidation of the public statutes of Canada.
2. In this Act,
“Minister” means the Minister of Justice and Attorney General of
Canada;
26. The Minister may maintain a consolidation of the public statutes
of Canada and a consolidation of the regulations of Canada.
[15]
In this respect, the Minister may cause
consolidated statutes to be published in printed or electronic form. This power
is embedded in Subsection 28(1) of the LRCA.
28. (1) The Minister may cause the consolidated statutes or
consolidated regulations to be published in printed or electronic form, and in
any manner and frequency that the Minister considers appropriate.
[16]
This consolidation of statutes allows the
Minister to publish a Parliamentary Act with all subsequent amendments in a
cumulative fashion. As a slightly ironic example, the former Statute
Revision Act, 1974-75-76, ch 20, s 1 (the “Statute
Revision Act”), was revised and enacted in 1985. On December 31,
2002, the Statute Revision Act was amended to alter, add and repeal
numerous sections. This occurred again on June 1, 2009. These amendments are
combined with the original version of the Statute Revision Act,
resulting in a cumulative consolidated statute that appears on the Department
of Justice’s website. Examples of major amendments undertaken include the
addition of Sections 26 to 32, as well as the change of name of the Statute
Revision Act to the LRCA. The power to consolidate all federal
legislation (statutes and regulations) is expressly given to the Minister under
Section 26 of the LRCA.
[17]
As importantly, pursuant to Subsection 31(1) of
the LRCA, either the print or the electronic consolidated statutes
published by the Minister constitute evidence of that statute:
31. (1) Every copy of a consolidated statute or consolidated
regulation published by the Minister under this Act in either print or
electronic form is evidence of that statute or regulation and of its contents
and every copy purporting to be published by the Minister is deemed to be so
published, unless the contrary is shown.
[18]
In the case of inconsistency between
consolidated statutes published by the Minister and the original statute or
amendments retained by the Clerk of the Senate, the original statute or amendments
shall prevail. Subsection 31(2) of the LRCA says so:
31(2) In the event of an inconsistency between a consolidated
statute published by the Minister under this Act and the original statute or a
subsequent amendment as certified by the Clerk of the Parliaments under the
Publication of Statutes Act, the original statute or amendment prevails to the
extent of the inconsistency.
[19]
Section 18 of the Canada Evidence Act,
RSC, 1985, c C-5, states that no proof before a Court of any Parliamentary
Acts, public or private, is necessary in order to establish evidence of a
Parliamentary Act.
18. Judicial notice shall be taken of all Acts of Parliament, public
or private, without being specially pleaded.
[20]
In summary, the Court finds that:
(i)
Senate Clerk certified copies of public Acts
need not be before the Court;
(ii)
Copies of the Act printed from the
Department of Justice’s website in electronic form and containing the imprimatur
of Sections 31(1) and 31(2) of the LRCA are official copies of federal
statutes and regulations; and
(iii)
Once produced before the Court, as above, the
version constitutes an Act of Parliament and judicial notice may be taken of it.
[21]
In conclusion, the Court may rely upon the
extracted version of the Act produced by the Respondent containing subsections
31(1) and (2) which are automatically printed with any excerpt or extract. No
further proof is needed. Further, the appellant’s agent did not assert that two
differing versions of the Act required reconciliation under subsection
31(2) of the LRCA.
[22]
For these reasons, as stated, the appeal is
dismissed.
Signed at Ottawa, Canada,
this 29th day of January 2016.
“R.S. Bocock”
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