Harper
J.
Part
One:
Statement
of
Facts
The
instant
matter
is
a
Summary
Conviction
prosecution
which
was
commenced
on
the
Information
of
one
Claudette
Miller
and
is
dated
the
second
day
of
December,
1991.
The
Jurat
reads
as
follows:
Sworn
or
solemnly
affirmed
before
me
this
2nd
day
of
December,
1991
at
Newcastle,
New
Brunswick.
"Drew
Stymiest"
Judge
of
Provincial
Court
Province
of
New
Brunswick
The
information
originally
contained
three
counts,
but
on
January
10,
1994
the
Crown
moved
to
amend
each
count,
and
the
defendant
moved
to
quash
all
counts.
His
Honour,
Judge
Stymiest
presided
and
adjourned
to
consider
the
applications
until
February
20,
1994,
at
which
time
he
permitted
the
Crown
to
amend
the
first
two
counts
and
quashed
count
three.
No
transcript
is
available,
so
that
his
reasons
for
his
decision
are
not
available
at
this
time.
The
operative
words
of
the
two
remaining
counts
(as
amended)
read
as
follows:
The
informant
says
that
she
has
reasonable
and
probable
grounds
to
believe
and
does
believe
that:
(1)
Brian
donovan,
of
Renous,
in
the
county
of
Northumberland
and
Province
of
New
Brunswick
on
or
about
April
30,
1988
at
or
near
Renous,
in
the
county
of
Northumberland
and
Province
of
New
Brunswick
did
make
false
or
deceptive
statements
in
his
T-l
return
for
the
taxation
year
1987
by
suppressing
income
in
the
amount
of
$40,627
contrary
to
paragraph
239(l)(a)
of
the
Income
Tax
Act
R.S.C.
1952
Chapter
148
as
amended;
(2)
Brian
Donovan,
of
Renous,
in
the
county
of
Northumberland
and
Province
of
New
Brunswick
on
or
about
the
25th
day
of
September,
1989
at
or
near
Renous,
in
the
county
of
Northumberland
and
Province
of
New
Brunswick
did
make
false
or
deceptive
statements
in
his
T-1
return
for
the
taxation
year
1988
by
suppressing
income
in
the
amount
of
$93,178.
Contrary
to
paragraph
239(1
)(a)
of
the
Income
Tax
Act
R.S.C.
1952
Chapter
148
as
amended....
The
history
of
the
information,
as
revealed
from
the
notes
of
the
said
Judge
Stymiest
recorded
thereon,
is
as
follows:
2/12/91
S
5
JAN
92
DS
JPC
Jan
3/92
-
Adj
at
request
of
Def
Mr.
Oley
&;
w/c
Mr.
Logan
for
Crown
to
Feb
24/92
1.30
pm
to
permit
certain
civil
actions
to
be
concluded
prior
to
trial
DS
JPC
Feb
7/92
-
Appearance
made
by
conference
call
John
Logan
representing
Crown.
David
Oley
representing
accused.
By
agreement
matter
is
adjourned
sine
die.
Def.
Put
on
record
that
they
(sic)
would
not
argue
on
askoff
(sic)
motion
on
pre-trial
delay
due
to
this
adjournment.
DS
JPC.
(Note:
there
are
no
indications
on
the
information
of
any
matters
occurring
for
the
next
23
months!)
Jan
10/94
Accused
present
with
counsel,
D.
Oley.
Crown,
John
B.D.
Logan.
Crown
moved
to
amend
the
three
counts
on
the
information.
defence
objected
to
proposed
amendments
and
motioned
(sic)
to
quash
all
three
counts.
Decision
adj.
to
21
Feb/94
at
9.30
am.
DS
JPC
Feb
21/94
Cr:
John
Logan.
defense:
D.
Oley.
Accused
present
with
counsel.
Count
#3
quashed.
Count
#1
&;
2
motion
to
quash
denied
and
both
counts
amended.
Matter
adj.
For
plea
to
april
5/94
at
1.30
pm.
DS
JPC
April
5/94
Cr.
John
logan.
defence:
Mr.
Oley
accused
present
with
counsel.
Motion
by
defence
for
stay
of
proceedings
on
ct.
1
And
2.
Decision
set
w/c
to
May
17/94
at
9.30
am
DS
JPC
May
17/94
-
John
Logan,
Crown.
Mr.
David
Oley,
defense.
Adjd
at
request
of
Court
w/c
of
def
&;
Crown
to
June
15/94
at
1.30
pm.
June
15/94
-
J.
Logan
-
Crown.
D.
Oley
-
defense.
Accused
present.
Charges
read.
Pleads
not
guilty
-
trial
date
set
for
nov.
14/94
9.30
(Week
of
nov
14/94)
DS
JPC
Prior
to
November
14,
1994,
I
was
requested
to
hear
the
trial
of
the
within
matter
but
was
not
informed
that
any
unusual
matters
were
involved
or
that
there
had
been
any
prior
proceedings
in
this
case.
I
arrived
on
the
morning
set
for
the
commencement
of
the
trial
not
even
aware
of
the
name
of
the
defendant.
In
advance
of
the
adduction
of
any
evidence,
Mr.
Mockler
for
the
defendant
filed
written
argument
and
argued
orally
in
support
of
a
motion
to
quash
the
two
remaining
charges
as
amended
on
the
grounds
that
said
charges
lacked
essential
averments.
He
also
filed
an
affidavit
of
the
defendant
under
paragraph
11(b)
of
the
Charter
in
support
of
an
order
similar
to
that
envisaged
by
the
Supreme
Court
of
Canada
decision
in
À.
v.
Askov,
[1990]
2
S.C.R.
1199,
59
C.C.C.
(3d)
449.
Since
no
formal
evidence
has
as
yet
been
heard
the
details
of
the
alleged
unreasonable
delay
must
in
large
part
be
deduced
from
the
nota-
tions
on
the
information
itself,
from
the
said
affidavit
of
the
defendant,
(the
truth
of
which
is
unchallenged)
and
in
part
by
the
admissions
of
Counsel.
The
parties
have
also
agreed
that
certain
facts
which
are
apparent
from
the
decision
of
the
Honourable
Thomas
J.
Riordon
herein
dated
the
29th
day
of
November,
1993
may
also
be
considered
by
this
Court
in
reaching
a
conclusion
in
the
"Askov’’
application.
I
shall
attempt
to
summarize
the
facts
which
are
apparent
from
said
decision;
and
in
doing
so
am
aware
of
the
fact
that
some
of
the
matters
referred
to
by
Mr.
Justice
Riordon
are
not
recorded
on
the
information
at
all
although
they
apparently
occurred
in
Provincial
Court
before
Judge
Stymiest.
1:
In
1989
The
Department
of
National
Revenue
began
investigating
the
affairs
of
the
defendant.
It
will
hereinafter
be
referred
to
as
the
Department.
2:
As
a
result
the
Department
obtained
three
search
warrants
which
were
issued
by
Mr.
Justice
Tumey-Jones
on
July
10,
1990
under
the
authority
of
section
2313
of
the
Income
Tax
Act.
3:
The
warrants
were
executed
by
members
of
the
Department
on
July
17,
1990
on
the
premises
of
the
defendant’s
home;
his
office,
and
the
premises
of
his
accountant,
H.
M.
Parlee
and
Company.
On
August
3rd,
1990,
Mr.
Justice
Jones
issued
an
order
for
the
retention
of
the
various
items
seized.
4:
On
November
28,
1990,
the
Federal
Court
of
Appeal,
in
its
decision
in
Baron
v.
The
Queen,
[1991]
1
C.T.C.
125,
1
C.T.C.
400,
91
D.T.C.
5055,
91
D.T.C.
5134
(F.C.A.)
declared
S.
231.3
of
the
Income
Tax
Act
invalid
in
that
it
was
unconstitutional.
Relying
upon
this
the
defendant
requested
return
of
the
documents
seized
thereunder.
5:
Rather
than
return
the
documents
the
Department
notified
Counsel
for
Donovan
that
application
would
be
made
before
His
Honour
Judge
Stymiest
on
May
28th,
1991
for
authority
to
again
seize
the
records
pursuant
to
s.
487
of
the
Criminal
Code.
6:
On
that
date,
(according
to
Mr.
Justice
Riordon,)
the
parties
appeared,
argument
was
heard
and
decision
was
reserved
by
Judge
Stymiest.
No
information
had
at
that
time
yet
been
laid.
7:
On
October
1,
1991
Judge
Stymiest
refused
the
request
of
the
Department
for
further
search
warrants
under
section
487
as
he
found
that
what
was
being
requested
was
a
"Simultaneous
search
warrant"
rather
than
a
"successive”
Search
warrant
and
that
it
should
not
be
issued.
No
record
of
this
was
found
in
the
Court
file
given
to
me.
8:
On
December
2,
1991,
the
present
information
was
laid
and
at
that
time
it
contained
three
counts.
9:
Prior
to
that
date,
On
May
24,
1991,
legal
action
was
commenced
in
the
Court
of
Queen’s
Bench
on
behalf
of
the
defendant
challenging
the
validity
of
section
231.3
of
the
Income
Tax
Act.
That
action
was
discontinued
and
a
new
action
was
commenced
against
the
[Department]
by
the
defendant
on
July
9,
1991.
10:
On
January
2,
1992
a
notice
of
motion
was
filed
in
the
Court
of
Queen’s
Bench
requesting
determination
of
several
questions
of
law
including
the
constitutional
validity
of
section
233.3
of
the
Income
Tax
Act,
the
validity
of
the
search
warrants
that
were
issued
on
July
10,
1990,
the
effect
of
the
searches
carried
out
and
for
the
return
of
the
documents
seized.
That
motion
was
set
to
be
heard
on
February
3,
1992.
11:
On
January
3,
1992,
proceedings
on
the
present
information
were
adjourned
without
plea
at
the
request
of
the
defendant
and
consent
of
the
Crown
to
February
24,
1992
"to
permit
certain
civil
actions
to
be
concluded
prior
to
trial".
12:
On
January
29,
1992
agreement
was
reached
by
exchange
of
letters
between
the
parties
to
adjourn
both
the
civil
proceedings
and
criminal
proceedings
sine
die
to
abide
the
decision
of
the
Supreme
Court
of
Canada
in
the
case
of
À.
v.
Baron,
supra.
13:
Said
agreement
also
provided
that
the
Department
would
file
an
"Intent
to
defend"
but
no
formal
defence.
In
the
interim
it
was
agreed
that
the
documents
seized
would
be
sealed
and
remain
in
safe
storage
in
the
custody
of
the
Director
of
the
Department
at
Saint
John.
14:
Said
agreement
further
provided
that
"Once
Baron/Kourtessis
has
been
decided
the
Crown
would
have
a
period
of
10
days
from
the
date
of
the
decision
to
file
its
defence.
Should
the
Supreme
Court
decision
go
against
the
Department
of
National
Revenue
it
would
forthwith
return
the
seized
documents
to
the
taxpayer
and
the
taxpayer
would
have
the
right
to
immediately
apply
to
the
Court
for
an
order
for
return
from
the
Department
of
all
copies
of
seized
documents
together
with
all
summaries,
notes
or
diagrams
taken
from
the
documents...seized
from
the
taxpayer."
15:
The
decision
of
the
Supreme
Court
in
Baron
was
delivered
on
January
21,
1993
and
is
reported
in
[1993]
1
S.C.R.
416,
1
C.T.C.
111,
93
D.T.C.
5018.
It
declared
section
231.3
of
the
Act
invalid
in
that
it
purported
to
remove
the
discretion
of
a
judge
in
deciding
whether
or
not
a
Search
Warrant
should
issue.
16:
On
the
same
day
that
Judgment
was
handed
down
in
Baron
the
defendant
through
Counsel
demanded
inter
alia
immediate
return
of
all
documents
seized
together
with
all
copies
made
thereof.
The
Crown
consented
and
the
date
return
was
scheduled
to
be
made
was
January
26,
1993.
It
refused
to
return
a
"working
copy"
already
made
or
any
extracts
and/or
summaries
made
therefrom.
Mr.
Oley
expected
the
documents
to
be
returned
to
his
office
in
Fredericton
in
accordance
with
his
request.
They
were
not
so
returned
and
some
of
the
documents
which
had
been
seized
from
Donovan’s
home
as
well
as
those
seized
from
a
building
which
housed
the
office
of
the
defendant
at
the
time
of
original
seizure,
(and
which
was
now
a
garage)
were
returned
to
that
building
without
being
delivered
to
the
custody
of
any
one
of
the
office
staff
of
the
defendant.
17:
Other
documents
were
returned
to
the
office
of
his
accountant,
Mr.
Parlee
from
whence
they
had
been
previously
seized.
In
any
event,
however,
both
locations
were
re-visited
within
half
an
hour
or
so
of
said
return
and
all
said
documents
were
once
more
seized
by
the
Department
on
the
authority
of
other
warrants
issued
by
His
Honour
Judge
Drew
Stymiest
on
January
26th,
1993,
within
a
few
minutes
of
the
applicant
being
notified
that
the
return
of
the
documents
had
been
effected.
No
record
of
the
issue
of
said
warrants
is
apparent
from
the
original
information.
18:
As
soon
as
counsel
for
the
defence
learned
of
this
second
seizure
he
informed
counsel
for
the
Crown
that
application
would
be
made
to
set
the
warrants
of
January
26,
1993
aside
in
the
Court
of
Queen’s
Bench
and
on
February
16,
1993
notice
of
the
application
that
was
eventually
dealt
with
by
Mr.
Justice
Riordon
was
filed.
On
February
18th
the
Department
made
a
return
to
the
warrants
and
obtained
two
orders
under
the
hand
of
Judge
Stymiest
for
the
retention
of
the
documents
seized.
19:
Argument
was
made
before
said
Mr.
Justice
Riordon
on
April
30,
1993,
and
Judgment
was
reserved
until
November
29
of
the
same
year.
On
that
date
the
learned
Justice
found
inter
alia
that
the
search
warrants
issued
by
Mr.
Justice
Jones
on
July
10,
1990
were
still
in
effect
and
he
ordered
them
quashed
and
that
all
documents
seized
thereunder
and
any
copies
made
of
those
documents
be
returned
to
Mr.
Donovan.
Mr.
Justice
Riordon
also
criticized
the
manner
in
which
the
documents
seized
under
the
July
1990
warrants
were
returned
without
first
obtaining
permission
of
a
judge
pursuant
to
paragraphs
231.3(7)(a)
and
(b)
of
the
Income
Tax
Act
which
require
the
documents
seized
to
be
brought
before
a
Judge
who
must
be
satisfied
that
the
documents
will
not
be
required
for
an
investigation
or
a
criminal
proceeding;
or
in
the
alternative
were
not
seized
in
accordance
with
the
warrant
or
section
231.3
of
the
Act.
20:
Said
Justice
Riordon
found
as
a
matter
of
law
that
the
original
Retention
Order
of
August
3rd,
1990
was
still
in
effect
until
such
time
as
the
Court
would
sanction
the
agreement,
and
as
a
result
the
search
warrants
issued
by
Judge
Stymiest
on
January
26,
1993
were
simultaneous
and
NOT
successive.
He
further
found
that
full
disclosure
of
the
manner
in
which
the
documents
first
seized
were
returned
to
Mr.
Donovan
had
not
been
made
to
said
Judge
Stymiest
on
the
day
said
new
warrants
were
issued.
21
:
Mr.
Justice
Riordon
stated
as
follows
on
page
15
of
his
written
reasons:
The
information
does
not
specifically
disclose
that
copies
of
all
documents
seized
were
kept.
The
information
does
not
specifically
state
that
the
earlier
search
warrants
had
been
abandoned.
The
information
does
not
specifically
disclose
that
documents
seized
from
the
residence
of
Mr.
and
Mrs.
Donovan
were
not
returned
there
and
why
they
were
not
returned
there.
The
information
states
that
the
documents
listed
in
the
appendices
were
returned.
There
is
no
indication
that
these
were
all
of
the
documents
seized
and
retained.
In
any
event,
as
i
stated
earlier,
no
mention
is
made
that
copies
were
retained.
It
was
not
disclosed
that
the
documents
seized
had
not
been
returned
personally
to
Mr.
Donovan
or
to
an
authorized
representative...
(And
on
page
16)....
The
purported
return
of
the
seized
documents
to
Mr.
Donovan
to
unknown
individuals
at
a
garage
which
obviously
was
not
his
office
business
premises
cannot
be
said
to
be
an
actual
return
of
the
seized
documents
to
Mr.
Donovan....
As
I
see
it
this
misleading
statement
in
the
information
is
sufficiently
significant
and
sufficiently
misleading
and
incomplete
in
specifics
that
the
proper
course
is
to
department
obtained
two
new
search
warrants
on
January
26,
1993
when
in
actual
fact
the
validity
of
the
first
warrants
that
had
been
obtained
from
Mr.
Justice
Jones
in
july
of
1990
were
not
yet
finally
decided
upon
and
were
still
legally
and
technically
in
effect
irrespective
of
the
agreements
of
counsel
and
decisions
of
other
courts
in
other
cases....
It
is
also
quite
significant
as
i
see
it
that
the
Federal
Court
of
Canada
decision
in
Baron
was
decided
on
or
about
November
28,
1990;
a
few
months
after
the
documents
were
seized
from
Mr.
Donovan
and
though
an
application
for
warrants
was
denied
by
Judge
Stymiest
in
October,
1991,
the
application
for
the
new
warrants
was
only
made
some
two
years
after
the
Trial
Decision
in
Baron.
|
quash
the
search
warrants
|
(And
on
page
17)
|
Also
as
1
see
it
the
|
Although
apparently
no
application
for
dismissal
of
the
information
under
Askov,
supra
was
made
before
Mr.
Justice
Riordon
he
did
consider
the
aspect
of
delay
vis-à-vis
future
applications
for
search
warrants.
He
referred
to
the
case
of
R.
v.
Peel
Air
Services
Ltd.,
[1993]
1
C.T.C.
71,
92
D.T.C.
6553,
where
the
Crown,
having
been
guilty
of
delay
in
furthering
a
prosecution
sought
to
introduce
documents
that
had
been
seized
under
a
search
warrant.
He
quoted
with
approval
from
page
73
(D.T.C.
6554)
as
follows:
Not
surprisingly,
Judge
Takach
held,
at
page
182
of
his
ruling,
that
some
action
must
be
taken
to
legitimize
conduct
that
is
subsequently
said
to
be
"inappropriate",
and
excluded
the
documents
under
section
24
of
the
charter.
Refusing
to
save
their
admission
under
section
1,
he
stated
at
page
181
of
his
ruling
as
follows:
In
my
view,
the
administration
of
justice
will
be
brought
into
disrepute
by
judicial
condonation
of
unacceptable
action
or
inaction
by
prosecutorial
agencies.
Permitting
evidence
that
had
been
unlawfully
obtained
and
held
where
immediate
specific
action
was
possible
to
legitimize
the
seizure
and
retention,
in
my
view,
would
bring
the
administration
of
justice
into
disrepute.
This
Court
cannot
condone
the
unlawful
retention
of
documents
of
any
person
facing
a
charge
even
though
the
unlawful
retention
and
possession
was
undertaken
without
evil
intent
or
without
malice.
In
this
case,
the
retention
of
the
documents,
on
the
evidence
before
me,
is
attributable
to
nothing
more
than
inaction,
which
I
suspect
in
itself
is
or
was
caused
by
a
number
of
factors....
The
short
point,
however,
is
that
documents
were
in
the
possession
of
the
investigatorial
and
prosecutorial
authorities
for
a
long
period
of
time
without
judicial
sanction
or
authorization.
The
facts
in
Peel
were
as
follows:
Pursuant
to
a
warrant
issued
under
subsection
231(3)
of
the
Income
Tax
Act,
Revenue
Canada
obtained
certain
documents
from
the
defendant’s
premises.
While
it
held
said
documents
Baron
was
decided
by
the
Supreme
Court
of
Canada.
The
Department
retained
possession
of
the
material
seized
for
over
one
year
after
said
decision
and
failed
to
take
steps
to
legitimize
said
seizure
under
section
487
of
the
code
as
it
could
have
done.
At
trial,
the
documents
were
excluded
pursuant
to
subsection
24(2)
of
the
Charter.
In
fact
it
did
apply
twice
for
a
warrant
under
the
Code,
once
to
a
Justice
and
once
to
a
Provincial
Court
Judge,
but
neither
application
was
made
until
the
expiration
of
just
short
of
a
year;
(or
over
two
years
if
Baron
be
considered
as
applying
retroactively.)
The
warrants
were
refused
and
the
Crown
retained
the
documents
and
went
to
trial
in
any
event.
As
stated
above
they
were
not
admitted
into
evidence.
There
is
no
indication
on
the
information
as
to
how
or
why
the
parties
appeared
before
Judge
Stymiest
on
January
10,
1994,
but
apparently
the
Crown
at
that
time
moved
to
amend
all
three
counts
and
the
defence
moved
for
dismissal.
Judgment
was
reserved
on
all
motions
until
the
date
certain
of
February
21,
1994
although
there
is
no
record
of
the
parties
consenting
to
such
adjournment.
All
parties
appeared
on
February
21
and
on
that
date
the
Crown
was
permitted
to
amend
counts
1
and
2
of
the
information
and
count
3
was
stricken.
No
reasons
are
apparent
for
either
of
these
decisions.
The
matter
was
then
adjourned
until
April
15
at
which
time
the
defendant
moved
for
a
stay
of
proceedings
on
counts
1
and
2.
No
grounds
were
recorded,
but
judgment
was
reserved
and
the
matter
further
adjourned
(with
consent)
to
May
17
for
decision.
On
May
17
the
matter
was
again
adjourned
by
consent
at
the
request
of
the
Court
to
June
15
1994.
On
said
date
the
parties
appeared
but
no
decision
was
recorded
on
the
defendant’s
motion
of
April
15.
Nothing
is
endorsed
on
the
information
as
to
the
disposition
of
said
motion,
but
on
this
date,
some
two
and
one
half
years
after
the
information
was
laid
both
remaining
charges
were
FOR
THE
FIRST
‘TIME
read
to
the
defendant
and
he
pleaded
"not
guilty"
to
each.
On
the
same
said
date
the
parties
consented
to
an
adjournment
for
trial
to
November
14,
1994,
which
is
when
I
first
became
involved.
The
parties
have
also
agreed
that
for
the
purposes
of
the
present
Motions
by
the
defendant,
this
Court
should
consider
various
items
of
correspondence
between
Counsel,
and
I
have
done
so,
but
have
omitted
quoting
therefrom
in
extenso
for
the
sake
of
brevity.
Part
Two:
The
Law
and
Argument
Thereon
The
defendant
moves
to
have
the
Court
quash
both
counts
of
the
information
and
requests
relief
on
several
grounds.
Some
arguments
are
based
on
the
technical
aspects
of
the
information
itself
and
the
averments
made
in
each
count,
and
other
arguments
are
based
upon
alleged
delays
and/or
improprieties
occasioned
by
the
conduct
of
the
Crown
and
are
based
upon
the
Supreme
Court
decision
in
À.
v.
Askov,
supra,
I
shall
consider
each
separately.
(a)
The
Jurat:
The
Court
of
its
own
motion
alerted
the
parties
to
two
technical
matters
arising
out
of
the
information
itself.
The
Jurat
indicates
that
the
information
was
"SWORN
OR
SOLEMNLY
AFFIRMED."
Sections
788
and
789
of
the
Code
provide
that
a
summary
conviction
information
must
be
in
Form
2,
in
writing
and
under
oath.
The
body
of
the
present
information
is
certainly
in
conformity
with
"Form
2"
but
the
Jurat
is
not.
Subsection
14(1)
of
the
Canada
Evidence
Act
provides
in
part
that
"Where
a
person
called
or
desiring
to
give
evidence,
objects,
on
grounds
of
conscientious
scruples,
to
take
an
oath....that
person
may
make
the
following
solemn
affirmation:
"I
solemnly
affirm
that
the
evidence
to
be
given
by
me
shall
be
the
truth,
the
whole
truth,
and
nothing
but
the
truth."
Subsection
(2)
of
section
14
provides
that
such
evidence
shall
be
taken
and
shall
be
of
the
same
force
and
effect
as
if
taken
under
oath.
It
is
arguable
that
the
prime
requisite
that
must
be
provided
by
an
informant
is
his
"oath”,
and
it
is
only
when
he
objects
to
such
procedure
on
conscientious
scruples
that
he
may
"solemnly
affirm."
It
seems
also
that
such
solemn
affirmation
must
be
in
the
wording
set
out
in
subsection
14(1)
of
the
Act.
Nowhere
is
it
found
to
be
permissible
to
indicate
on
the
face
of
an
information
that
it
may
have
been
sworn
or
that
in
the
alternative
the
informant
may
have
proceeded
by
way
of
solemn
affirmation.
It
is
true
that
certain
provisions
affecting
summary
conviction
matters
under
provincial
statutes
in
New
Brunswick
specifically
provide
for
the
facts
alleged
in
an
information
to
be
"Solemnly
Affirmed",
but
such
is
not
the
case
under
the
Criminal
Code.
In
neither
case,
however,
is
provision
made
for
a
Jurat
which
is
not
specific
as
to
one
or
the
other.
One
would
expect
the
Judge
to
at
least
strike
out
part
of
the
printed
Jurat
so
that
it
would
be
obvious
as
to
which
approach
were
adopted
by
the
informant
although
even
then
it
may
be
that
the
Jurat
must
show
that
it
was
laid
by
way
of
that
it
was
laid
by
way
of
solemn
affirmation
because
of
the
"conscientious
scruples"
of
the
informant.
(b)
Adjournments:
The
endorsements
on
the
information
indicate
that
proceedings
were
adjourned
sine
die
on
at
least
one
occasion.
On
February
7,
1992,
during
an
appearance
made
by
"conference
call"
the
parties
consented
to
an
adjournment
sine
die.
The
purpose
of
the
adjournment
is
not
recorded
on
the
information,
but
I
can
only
surmise
that
it
was
to
await
the
decision
of
the
Trial
Court
in
Baron.
It
is
true
that
at
that
time
an
agreement
was
made
that
no
"Askov"
motion
would
be
made
as
a
result
thereof,
but
it
is
trite
law
to
state
that
jurisdiction
cannot
be
given
by
consent.
There
are
absolutely
no
provisions
in
the
Code
for
appearances
to
be
made
by
"teleconference"
and
it
is
arguable
that
jurisdiction
was
lost
on
February
7,
1992.
Even
a
cursory
examination
of
the
information
reveals
that
on
February
3,
1992
the
matter
was
adjourned
by
consent
of
counsel
to
February
24,
1992.
The
next
endorsement
is
that
of
February
7,
and
there
is
no
indorsement
at
all
for
February
24.
I
can
only
conclude
that
nothing
occurred
on
that
date.
Subsection
803(1)
of
the
Code
reads
as
follows:
803(1)
The
summary
conviction
court
may,
in
its
discretion.
Before
or
during
the
trial,
adjourn
the
trial
to
a
time
and
place
to
be
appointed
and
stated
in
the
presence
of
the
parties
or
their
counsel
or
agents,
but
no
adjournment
shall
be
for
more
than
eights
clear
days
unless
both
parties
or
their
counsel
or
agents
consent
to
the
proposed
adjournment
whether
or
not
the
defendant
is
in
custody.
The
Supreme
Court
of
Canada
decision
in
Doyle
v.
The
Queen,
[1977]
1
S.C.R.
597,
[1977]
C.T.C.
530,
78
D.T.C.
6027,
makes
it
very
clear
that
there
is
no
inherent
jurisdiction
in
the
Provincial
Court
and
its
jurisdiction
is
purely
statutory.
Ritchie
J.S.C..
in
delivering
the
Judgment
of
the
Court
stated
on
page
602
(C.T.C.
538,
D.T.C.
6035)
as
follows:
Whatever
inherent
powers
may
be
possessed
of
a
superior
court
judge
on
controlling
the
process
of
his
own
Court,
it
is
my
opinion
that
the
powers
and
functions
of
a
magistrate
acting
under
the
criminal
code
are
circumscribed
by
the
provisions
of
that
statute
and
must
be
found
to
have
been
thereby
conferred
either
expressly
or
by
necessary
implication....
I
regard
the
powers
of
a
magistrate
or
justice
acting
under
the
criminal
code
as
entirely
statutory.
Doyle
is
still
the
law.
Under
the
facts
of
that
case
a
person
accused
of
an
Indictable
offence
appeared
before
Magistrate’s
Court
on
several
occasions
and
several
adjournments
from
time
to
time
to
dates
certain
were
consented
to
by
the
parties.
On
one
occasion
the
Crown
requested
a
four
month
adjournment
and
the
accused
did
not
consent.
The
adjournment
was
granted
in
any
event
to
a
date
certain
and
the
accused
applied
by
way
of
Mandamus
that
requested
return
of
his
cash
bail
posted
and
further
requested
an
order
declaring
his
Recognizance
be
declared
void.
The
Chief
Justice
sitting
alone
refused
the
application
as
did
the
Newfoundland
Court
of
Appeal;
but
the
Supreme
Court
found
that
jurisdiction
over
both
the
person
and
the
offence
had
been
lost
by
the
adjournment
of
over
eight
days
without
consent.
In
the
instant
case,
the
adjournment
was
not
only
for
more
than
eight
days
but
was
not
even
to
a
date
certain.
The
Code
was
amended
after
Doyle
and
sections
485
and
485.1
are
the
present
sections
providing
relief
after
procedural
irregularities.
The
relevant
sections
read
in
part
as
follows:
485(1)
Jurisdiction
over
an
offence
is
not
lost
by
reason
of
the
failure
of
any
court,
judge,
provincial
court
judge
or
justice
to
act
in
the
exercise
of
that
jurisdiction
at
any
particular
time,
or
by
reason
of
a
failure
to
comply
with
any
of
the
provisions
of
this
act
respecting
adjournments
or
remands.
(2)
Where
jurisdiction
over
an
accused
or
a
defendant
is
lost,
and
has
not
been
regained,
a
court,
judge,
provincial
court
judge
or
justice
may,
within
three
months
after
the
loss
of
jurisdiction,
issue
a
summons,
or
if
it
or
he
considers
it
necessary
in
the
public
interest,
a
warrant
for
the
arrest
of
the
accused
or
defendant.
(3)
Where
no
summons
or
warrant
is
issued
under
subsection
(2)
within
the
period
provided
therein,
the
proceedings
shall
be
deemed
to
be
dismissed
for
want
of
prosecution
and
shall
not
be
recommenced
except
in
accordance
with
section
485.1.
Section
485.1
reads
as
follows:
4851
Where
an
indictment
in
respect
of
a
transaction
is
dismissed
or
deemed
by
any
provision
of
this
act
to
be
dismissed
for
want
of
prosecution,
a
new
information
shall
not
be
laid
and
a
new
indictment
shall
not
be
preferred
before
any
court
in
respect
of
the
same
transaction
without
(a)
the
personal
consent
in
writing
of
the
attorney-general
or
deputy
attorney-general,
in
any
prosecution
conducted
by
the
attorney-general
or
in
which
the
attorney-general
intervenes;
or
(b)
the
written
order
of
a
judge
of
that
court,
in
any
prosecution
conducted
by
a
prosecutor
other
than
the
attorney-general,
and
in
which
the
attorneygeneral
does
not
intervene.
(c)
Essential
Averments
of
information:
The
present
charges
allege
violations
of
the
Income
Tax
Act,
but
their
prosecution
is
subject
to
the
provisions
of
the
Criminal
Code.
Objections
have
been
raised
as
to
the
substance
of
each
of
the
counts
before
the
Court.
PART
XXVII
of
the
Code
governs
prosecutions
by
way
of
Summary
Convictions.
Section
788
of
the
Code
in
Part
XXVII
requires
that
proceedings
be
commenced
by
the
laying
of
an
information
in
Form
2.
Section
789
requires
the
information
to
be
in
writing
and
under
oath.
Section
801
requires
that
the
substance
of
the
charge
be
read
to
the
defendant
when
he
appears
and
that
a
plea
be
taken
from
him.
Section
795
provides
that
the
provisions
of
PART
XX
apply
to
summary
convictions
in
so
far
as
they
are
not
contradictory
to
Part
XXVII
and
apply
mutatis
mutandis.
Section
581
subsections
(1)
and
(2)
in
Part
XX
set
out
the
requirements
of
a
valid
charge
and
provide
that
each
count
shall
apply
to
a
single
transaction;
allege
that
the
accused
has
committed
an
offence;
may
be
in
popular
language;
and
may
be
in
the
wording
of
the
enactment
providing
for
the
offence;
but
must
contain
words
sufficient
to
the
accused
notice
of
the
offence
with
which
he
is
charged.
Subsections
(3,)
(5)
and
(6)
describe
the
basics
of
a
valid
charge
and
subsection
(4)
is
not
applicable
to
the
present
situation.
The
other
said
subsections
read
in
full
as
follows:
(3)
A
count
shall
contain
sufficient
detail
of
the
circumstances
of
the
alleged
offence
to
give
to
the
accused
reasonable
information
with
respect
to
the
act
or
omission
to
be
proved
against
him
and
to
identify
the
transaction
referred
to,
but
otherwise
the
absence
or
insufficiency
of
detail
does
not
vitiate
the
count.
(5)
A
count
may
refer
to
any
section,
subsection,
paragraph
or
subparagraph
of
the
enactment
that
creates
the
offence
charged,
and
for
the
purpose
of
determining
whether
a
count
is
sufficient,
consideration
shall
be
given
to
any
such
reference.
(6)
Nothing
in
this
part
relating
to
matters
that
do
not
render
a
count
insufficient
shall
be
deemed
to
restrict
or
limit
the
application
of
this
section.
Section
601
provides
great
powers
of
amendment
to
a
court
or
a
judge,
and
in
its
eleven
subsections
seem
to
envisage
almost
any
situation
where
a
count
is
defective
in
either
form
or
substance.
Subsection
1
provides
that
objection
to
an
information
or
to
a
count
therein
that
is
apparent
from
the
face
thereof
must
be
taken
by
motion
to
quash
prior
to
plea,
and
thereafter
only
by
leave
of
the
Court,
and
gives
jurisdiction
to
the
Court,
if
it
considers
it
necessary,
the
power
to
order
amendment
to
cure
the
defect.
In
the
present
instance
objection
was
taken
on
January
10,
1994,
some
five
months
before
plea
was
entered.
In
addition
thereto
the
defendant
filed
further
argument
and
cited
the
following
further
precedents
by
letter
to
Judge
Stymiest
dated
January
11,
1994;
(a)
R.
v.
Wis
Developments
Corp.,
[1994]
1
S.C.R.
485,
12
C.C.C.
(3d)
129;
(b)
R.
v.
King,
[1956]
O.W.N.
810,
16
C.C.C.
284
(Ont.
C.A.);
and
(c)
R.
v.
Solowoniuk
(1960),
129
C.C.C.
273
(B.C.C.A.)
Further
argument
as
to
the
sufficiency
of
the
counts
was
heard
on
November
14
before
me,
but
the
Crown
made
no
further
application
to
amend
that
day
or
the
day
following,
so
I
take
it
for
granted
that
the
Crown
is
satisfied
that
the
Court
examine
the
counts
as
they
stand
at
present
and
make
its
findings
thereon.
A
written
brief
was
filed
by
counsel
for
the
defence
on
November
14,
and
oral
argument
was
held
that
day
as
well
as
the
day
following.
It
is
the
position
of
the
defendant
that
both
counts
lack
essential
averments
and
should
be
quashed
in
that
they
disclose
no
offence
known
to
law.
Counsel
for
the
defence
commenced
his
argument
by
quoting
from
subsection
239(1)
of
the
Income
Tax
Act,
which
reads
in
part
as
follows:
239(1)
Every
person
who
has
(a)
made,
or
participated
in,
assented
to
or
acquiesced
in
the
making
of,
false
or
deceptive
statements
in
a
return,
certificate,
statement
or
answer
filed
or
made
as
required
by
or
under
this
act
or
a
regulation,
(b)
to
evade
payment
of
a
tax
imposed
by
the
act,
destroyed
altered,
mutilated,
secreted
or
otherwise
disposed
of
the
records
or
books
of
account
of
a
taxpayer,
(c)
made,
or
assented
to
or
acquiesced
in
the
making
of,
false
or
deceptive
entries,
or
omitted,
or
assented
to
or
acquiesced
in
the
omission,
to
enter
a
material
particular,
in
records
or
books
of
account
of
a
taxpayer,
(d)
wilfully,
in
any
manner,
evaded
or
attempted
to
evade
compliance
with
this
act,
or
(e)
conspired
with
any
person
to
commit
an
offence
described
in
paragraphs
(a)
to
(d),
is
guilty
of
an
offence
and,
in
addition
to
any
penalty
otherwise
provided,
is
liable
on
summary
conviction
to
(f)
a
fine
of
not
less
than
50
per
cent,
and
not
more
than
200
per
cent,
of
the
amount
of
the
tax
that
was
sought
to
be
evaded,
or
(g)
both
the
fine
described
in
paragraph
(f)
and
imprisonment
for
a
term
not
exceeding
two
years.
It
is
the
contention
of
the
defendant
that
it
is
not
an
offence
under
the
Income
Tax
Act
to
complete
a
false
return.
Such
an
act
by
itself
bears
no
legal
consequence.
It
is
only
when
the
false
or
deceptive
return
is
"filed
or
made
as
required
by"
said
Act
or
Regulation
that
it
acquires
legal
significance
and
that
therefore
any
averment
charging
false
or
deceptive
returns
contrary
to
subsection
239(1),
must
allege
that
said
return
was
"required
to
be
made."
Counsel
argues
that
the
phrase
"as
required
by"
is
vital
and
its
absence
is
fatal
for
a
reason
similar
to
the
fact
that
the
absence
of
the
word
"wilfully"
proved
fatal
to
the
Crown’s
charge
of
obstruction
contrary
to
paragraph
110
(a);
[now
paragraph
129(a)]
in
the
case
of
R.
v.
Solowoniuk,
supra,
Similarly
in
Wis
Developments,
supra,
the
meaning
of
sections
510
and
732
of
the
Code,
[which
were
the
predecessors
of
sections
581
and
601,
supra]
were
considered
by
the
Supreme
Court
of
Canada.
In
Wis
the
facts
involved
several
charges
under
the
Aeronautics
Act
and
the
charges
as
laid
were
in
the
express
words
of
section
17
of
the
Act.
Each
count
alleged
that
the
defendant
did,
at
a
certain
place
on
or
about
a
date
certain
"operate
a
commercial
air
service
without
holding
a
valid
and
subsisting
licence"
contrary
to
section
17
of
the
Act.
Section
9
of
the
Act
defined
"commercial
air
service"
in
part
as
"the
use
of
any
aircraft
in
or
over
Canada
for
hire
or
reward."
Lamer
J.
(as
he
then
was,)
delivered
the
judgment
of
the
Court.
His
was
prior
to
the
decision
of
the
same
Court
in
À.
v.
Stinchcombe,
[1991]
3
S.C.R.
326,
68
C.C.C.
(3d)
191
and
although
the
Crown
failed
to
supply
particulars
after
demand
was
made
by
the
defendant,
the
case
did
not
turn
on
that
point.
In
Wis
the
defendant
argued
against
the
sufficiency
of
the
counts
and
as
well
demanded
particulars
from
the
time
it
first
became
aware
of
the
charges.
The
Crown
elected
not
to
furnish
particulars
nor
did
it
move
to
amend
the
informations.
Lamer,
after
remarking
on
the
diverse
activities
envisaged
by
said
section
9
stated
as
follows
on
page
120
as
follows:
To
sum
up,
I
am
of
the
view
that
under
Part
XXIV
of
the
code
an
information
that
fails
to
comply
with
either
subsection
510(1)
or
(3),
if
objected
to
prior
to
plea,
must
be
quashed
and
cannot
be
salvaged
by
particulars
or
by
amendment.
It
is
also
argued
by
the
defence
that
paragraph
239(1
)(a)
of
the
Act
contemplates
as
part
of
the
offence
that
tax
was
sought
to
be
evaded.
The
foregoing
is
premised
upon
the
fact
that
the
penalties
upon
conviction
under
the
present
charges
are,
by
virtue
of
paragraph
239(1
)(f)
of
the
Act,
subject
to
a
penalty
in
addition
to
any
other
punishment
that
may
be
imposed
by
the
Court.
Such
being
the
case,
argues
the
defendant,
it
is
vital
that
the
taxpayer
be
made
aware
of
the
amount
of
tax
he
is
alleged
to
have
sought
to
evade.
Thus
it
is,
that
the
Department
normally
combines
in
the
one
information
a
charge
under
paragraph
239(1
)(a)
with
a
wilful
evasion
charge
under
paragraph
239(1
)(d).
This
was
done
originally
in
the
instant
case,
but
the
third
count
was
struck
out
by
Judge
Stymiest.
It
is
the
position
of
the
defendant
that
because
of
the
foregoing
the
information
was
rendered
wholly
deficient
and
is
a
nullity
and
should
be
struck
out.
The
defendant
further
argues
that
since
he
is
an
individual
his
"requirement
to
file"
is
found
in
subsection
150(1)
of
the
Act.
That
section
requires
filing
by
an
individual
"for
each
taxation
year
for
which
tax
is
payable".
An
individual
may
also
be
"required
to
file"
under
subsection
150(2)
if
the
Minister
demands
that
he
file
a
return.
Counsel
for
the
defence
alleges
that
the
charge
must
also
reflect
the
nature
of
the
requirement.
The
Crown
did
not
dispute
any
of
the
foregoing
factual
findings,
and
admitted
that
it
retained
a
copy
of
the
papers
improperly
seized
at
least
up
to
and
including
November
29,
1993.
Mr.
Logan
did
not
advance
any
convincing
arguments
that
would
justify
most
of
the
delays
that
occurred.
(c)
"Askov."
At
the
hearing
of
November
15,
1994
held
before
me
at
Newcastle,
the
defendant
made
application
for
dismissal
of
the
remaining
two
charges
against
him
on
the
ground
of
unreasonable
delay.
He
filed
an
affidavit
in
support
thereof
in
which
he
set
out
that
several
applications
had
been
made
by
the
defendant
between
the
months
of
February
and
June
of
that
year;
one
of
which
had
culminated
in
one
of
the
counts
in
the
information
being
quashed.
The
defendant
further
swears
that
one
James
Simpson
died
on
July
19
of
1994,
and
that
said
Mr.
Simpson
during
the
relevant
period
encompassed
by
the
present
charges,
(namely
1987
to
September
1989,)
was
much
involved
in
the
keeping
of
the
defendant’s
Records
particularly
cheques
and
revenue
received.
The
defendant
deposes
in
part
that:
6:
For
each
year
involved
in
this
matter
Mr.
Simpson
prepared
papers
showing
income
which
he
compiled
from
tally
or
explanatory
sheets
attached
to
cheques
received
from
Miramichi
Pulp
and
Paper
and
the
Crown
obtained
some
of
his
work
papers
from
my
office
in
the
course
of
an
audit
of
my
records
in
the
fall
of
1989.
7:
That
as
a
result
of
Mr.
Simpson’s
death,
I
will
be
left
without
evidence
from
him
to
explain
the
papers
and
records
he
compiled
and
which
are
very
material
to
the
charge
against
me.
In
the
result
my
defence
has
been
seriously
and
unfairly
prejudiced.
8:
That
the
decision
of
Mr.
Justice
Riordon
indicates
that
rather
than
proceed
with
the
charges
against
me
in
February
of
1993
after
the
Supreme
Court
of
Canada
in
Baron
the
Crown
attempted
to
get
additional
search
warrants
and
engage
in
what
Mr.
Justice
Riordon
indicated
was
conduct
that
could
not
BE
CONSIDERED
TO
BE
ENTIRELY
STRAIGHT
FORWARD
and
swore
out
an
affidavit
or
information
that
in
the
words
of
Mr.
Justice
Riordon
lacked
detail,
lack
(sic)
specificity
and
its
correctness
was
questionable
(page
15
of
judgment).
9:
That
this
charge
was
laid
in
December
1991
and
I
waived
any
objection
to
delay
for
a
period
of
one
year
while
the
search
warrant
issue
was
decided
by
the
Supreme
Court
of
Canada.
From
February
1993
until
the
present,
some
21
months,
a
delay
in
bringing
this
matter
to
trial
has
taken
place
which
is
contrary
to
my
Charter
rights
to
be
tried
within
a
reasonable
time.
10:
That
I
am
advised
by
my
solicitor
David
Oley,
Esq.,
and
verily
believe
it
to
be
true
that
he
intended
to
call
Mr.
Simpson
as
a
witness
in
defence
of
this
charge
and
that
he
was
a
necessary
witness
to
my
defence.
For
the
foregoing
reasons,
the
defendant
claims
that
his
right
to
be
tried
within
a
reasonable
time
as
guaranteed
by
paragraph
11
(b)
of
the
Charter
has
been
violated.
The
Crown
does
not
challenge
the
truth
of
any
of
the
facts
deposed
to
by
Mr.
Donovan.
Askov,
(paragraph
5
supra,
is
the
leading
case
with
reference
to
unreasonable
delay.
The
Supreme
Court
set
out
four
factors
which
it
directed
must
be
considered
by
a
trial
court
in
coming
to
a
decision
whether
or
not
there
has
been
an
unreasonable
delay
in
the
prosecution
of
any
case.
They
are
as
follows:
(1)
the
length
of
the
delay;
(2)
explanation
for
the
delay;
(3)
waiver;
and
(4)
Prejudice
to
the
accused.
Mr.
Logan
admitted
that
he
had
just
discovered
the
unfortunate
fact
of
Mr.
Simpson’s
death;
that
he
had
caused
a
Summons
to
Witness
to
be
issued
for
service
upon
him;
and
while
he
did
not
go
so
far
as
to
state
that
he
would
have
been
called
as
a
witness
at
trial,
he
did
say
that
Mr.
Simpson
doubtless
would
have
had
material
evidence
to
give,
and
that
he
would
have
wished
to
interview
him
were
he
alive.
I
will
attempt
to
outline
the
rather
convoluted
chronology
of
this
matter
in
the
following
manner.
(a)
The
Department
commenced
investigating
the
defendant’s
affairs
in
1989.
Search
Warrants
under
section
231.3
of
the
Income
Tax
Act
were
issued
on
July
10,
1990,
and
as
a
result
many
of
the
defendant’s
records
were
seized
from
three
different
locations.
(b)
The
Federal
Court
of
Appeal
decision
in
Baron
was
delivered
on
November
28,
1990
declaring
section
231.3
unconstitutional.
(c)
The
defendant
then
demanded
return
of
his
records
but
the
Department
elected
to
retain
them.
(d)
On
May
28,
1991
(after
notice)
the
Department
applied
to
Judge
Stymiest
for
new
warrants
under
section
487
of
the
Code.
Judge
Stymiest
reserved
his
decision
until
October
1,
1991,
at
which
time
he
refused
the
application
for
new
warrants
on
the
ground
that
the
warrants
requested
were
"simultaneous
warrants."
(e)
The
information
herein
was
laid
on
December
2,
1991,
and
a
summons
issued
that
same
date
returnable
January
5,
1992.
(f)
On
January
2,
1992
a
notice
of
motion
was
filed
by
the
defendant
in
the
Court
of
Queen’s
Bench
questioning
the
propriety
of
the
Crown’s
actions
thus
far.
It
was
to
be
heard
February
3,
1992.
(g)
On
January
3,
1992,
(whether
by
consent
or
otherwise
or
whether
the
parties
appeared
voluntarily
in
advance
or
appeared
at
all
is
not
apparent)
the
criminal
matter
was
adjourned
to
February
24,
1992.
(h)
Again
in
advance
of
the
date
set
there
apparently
was
an
"appearance
made
by
conference
call"
made
on
February
7,
1992
and
the
matter
was
purportedly
adjourned
sine
die
by
consent.
(i)
In
the
Court
of
Queen’s
Bench,
on
January
29,
1992,
prior
to
the
hearing
on
the
defendant’s
motion,
agreement
was
reached
between
Counsel
that
the
instant
application
(as
well
as
the
criminal
matter)
would
be
adjourned
pending
the
decision
of
the
Supreme
Court
of
Canada
in
Baron.
(j)
The
Judgment
of
the
Supreme
Court
of
Canada
came
down
January
21,
1993.
It
upheld
the
findings
of
the
Federal
Court
of
Appeal.
The
defendant
again
immediately
demanded
the
return
of
the
documents
to
the
office
of
Mr.
Oley
in
Fredericton,
and
the
Department
agreed,
but
as
it
informed
Mr.
Oley,
it
kept
copies
of
all
documents.
(k)
It
set
January
26,
1993
as
the
date
upon
which
return
would
be
effected,
and
notified
the
defence
counsel
of
its
intention.
Because
of
Mr.
Oley’s
understanding
that
the
documents
would
be
returned
to
his
office
in
Fredericton
he
notified
Mr.
Donovan
to
come
from
his
home
at
Renous
to
Fredericton
to
take
possession
of
the
his
records
that
had
been
seized
in
1990.
(l)
On
said
date,
the
Department
did
(in
a
manner
of
speaking)
return
the
documents
in
the
manner
hereinbefore
set
out
in
paragraph
7,
subparagraphs
16
to
18,
but
it
did
not
inform
the
defendant
that
it
would
be
immediately
requesting
a
new
warrant
from
Judge
Stymiest
under
section
487
of
the
Code
on
the
same
said
date.
(m)
No
notice
was
in
fact
necessary,
but
full
disclosure
to
Judge
Stymiest
was.
Application
was
made
on
said
January
26
and
new
warrants
were
issued
by
Judge
Stymiest
a
few
minutes
after
the
time
the
papers
were
disposed
of
in
the
manner
heretofore
described.
(n)
The
new
search
warrants
were
also
issued
on
the
information
of
the
same
Claudette
Miller,
but
she
did
not
make
either
accurate
or
full
disclosure
before
said
Judge
Stymiest,
and
in
particular
failed
to
disclose
before
him
that
the
Department
had
kept
copies
of
all
the
documents.
She
also
failed
to
disclose
the
agreement
that
had
been
reached
to
return
the
documents
to
Mr.
Oley’s
office
in
Fredericton;
and
the
fact
that
the
search
warrants
issued
in
1990
were
still
in
effect.
(o)
As
soon
as
the
defendant
became
aware
of
this,
he
made
another
application
before
Mr.
Justice
Riordon
to
set
aside
the
new
warrants.
Argument
was
heard
before
him
on
April
10,
1993
and
judgment
was
reserved
until
November
29,
1993.
He
quashed
the
original
warrants
of
July,
1990
which
he
found
were
still
in
effect
up
to
that
time
and
further
quashed
the
new
warrants
issued
on
January
26,
1993
on
the
ground
that
inter
alia
they
were
"simultaneous
warrants".
(p)
Mr.
Justice
Riordon
also
sets
out
several
other
facts
which
were
either
not
disclosed
to
Judge
Stymiest
or
materially
misrepresented
to
him.
He
said
on
page
16;
"It
is
difficult
to
say
if
this
misleading
and
incorrect
information
was
done
deliberately
or
inadvertently."
(q)
In
any
event
he
found
the
sworn
statement
of
Ms.
Miller
to
be
so
"sufficiently
significant
and
sufficiently
misleading
and
incomplete
in
specifics"
that
he
ordered
the
warrants
quashed
on
November
29,
1993.
(r)
The
ultimate
result
of
his
judgment
was
to
quash
all
outstanding
search
warrants
and
to
order
all
documents
and
copies
thereof
returned
to
the
defendant.
This
Court
has
been
informed
that
a
specific
return
of
documents,
satisfactory
to
the
defendant,
was
made
by
the
Crown
in
a
timely
manner
in
accordance
with
the
Order
of
Mr,
Justice
Riordon.
(s)
If
the
endorsements
on
the
criminal
information
are
correct,
nothing
at
all
occurred
in
Provincial
Court
with
reference
to
the
prosecution
of
this
matter
between
February
7,
1992
and
January
10,
1994!
The
appearances
on
the
latter
date
do
not
seem
to
be
occasioned
by
any
process
issuing
out
of
the
Provincial
Court
and
perhaps
the
parties
appeared
voluntarily.
If
so,
it
is
not
apparent
from
any
endorsement
upon
the
information.
(t)
On
said
January
10
of
1994
the
Crown
moved
to
amend
the
information
and
the
defendant
moved
that
the
charges
be
quashed.
Both
motions
were
adjourned
to
February
21,
1994.
There
is
no
indication
on
the
information
that
the
parties
consented.
(u)
The
parties
appeared
on
said
February
21,
and
Count
three
was
struck
out;
Counts
1
and
2
were
amended
and
the
defendant’s
motion
to
quash
denied.
The
matter
was
adjourned
for
plea
to
April
5,
1994.
Again
the
information
does
not
reflect
that
the
adjournment
was
by
consent.
(v)
On
April
5
the
parties
also
appeared
and
the
defendant
moved
for
a
stay
of
proceedings.
This
Court
is
not
aware
of
the
grounds
relied
upon.
The
matter
was
adjourned
with
consent
to
May
17,
1994
with
an
indication
that
the
Court
would
render
a
decision
on
that
date.
(w)
On
May
17
Mr.
Logan
appeared
as
did
Mr.
Oley.
The
matter
was
again
adjourned
to
June
15,
1994.
That
particular
adjournment
was
at
the
request
of
the
Court
and
with
the
consent
of
the
parties.
(x)
On
said
June
15
no
decision
on
the
defendant’s
Motion
for
a
stay
is
apparent
from
the
endorsements,
but
apparently
for
the
first
time
since
the
information
was
laid
on
December
2,
1991
the
charges
were
read
to
the
defendant
and
he
pleaded
"not
guilty"
to
both
remaining
counts.
(y)
On
that
day
the
trial
was
set
for
November
14,
1994.
There
is
no
endorsement
indicating
that
the
parties
consented
to
this
adjournment,
but
an
endorsement
reads
"week
of
November
14/94"
and
I
assume
the
Court
expected
trial
to
take
place
at
that
time.
(z)
On
July
19,
1994,
James
Simpson
died.
Part
Three:
Conclusions
There
are
so
many
variations
from
the
norm
in
the
instant
matter
that
it
is
difficult
to
sort
the
wheat
from
the
chaff.
I
have
come
to
each
of
the
following
conclusions
in
the
alternative
in
the
various
classifications
I
have
set
out
herein.
(1)
The
Jurat:
Paragraph
789(1
)(a)
of
the
Code
requires
that
an
information
must
be
in
writing
and
under
oath.
No
specific
provision
is
made
in
the
Code
for
informations
made
on
application
of
any
person
who
does
not
wish
to
swear
to
its
truth.
Subsection
14(1)
of
the
Evidence
Act
provides
as
follows:
Where
a
person
called
or
desiring
to
give
evidence
objects,
on
grounds
of
conscientious
scruples,
to
take
an
oath,
or
is
objected
to
as
incompetent
to
take
an
oath
that
person
may
make
the
following
solemn
affirmation:
I
solemnly
affirm
that
the
evidence
to
be
given
by
me
shall
be
the
truth,
the
whole
truth
and
nothing
but
the
truth.
The
recent
British
Columbia
Court
of
Appeal
decision
in
R.
v.
Hanna
(1993)
80
C.C.C.
(3d)
289,
27
B.C.A.C.
42
(C.A.)
holds
that
subsection
14(1)
applies
only
where
the
witness
himself
objects
to
taking
the
oath.
In
any
event,
the
objection
by
whomsoever
taken
must
be
based
upon
the
witness’
lack
of
religious
belief.
In
the
case
of
Netley
v.
The
Queen
&;
Greer,
Prov.
J.;
(1983)
5
W.W.R.
508,
a
single
judge
of
the
B.C.
Supreme
Court
found
that
an
information
that
is
affirmed
rather
than
sworn
is
valid.
Even
assuming
that
he
is
correct,
that
decision
is
of
no
assistance
in
the
instant
case
as
it
is
impossible
to
conclude
either
that
the
information
is
under
oath;
or
in
the
alternative
"based
upon
the
informant’s
lack
of
religious
beliefs"
it
was
solemnly
affirmed.
This
Court
finds
said
information
for
that
reason
is
a
nullity.
(2)
Loss
of
Jurisdiction:
Paragraph
803(1
)(b)
of
the
Code
is
mandatory
in
its
requirements
that
Summary
Conviction
Courts
are
limited
to
adjournments
not
exceeding
eight
clear
days
in
the
absence
of
the
consent
of
both
the
defendant
and
the
prosecutor.
The
Supreme
Court
of
Canada
decision
in
the
case
of
Batchelor
v
The
Queen
(1978)
38
C.C.C.
(2d)
113
is
authority
for
the
proposition
that
where
the
parties
cannot
agree
to
a
trial
date
it
should
be
set
by
the
Court
of
its
own
motion
and
then
the
Court
should
adjourn
the
matter
for
periods
not
exceeding
eight
clear
days
until
the
trial
date
is
reached.
It
necessarily
follows
that
any
adjournment
sine
die
is
unlawful
and
results
in
an
immediate
loss
of
jurisdiction
over
the
person
of
the
accused.
As
stated
before
herein,
jurisdiction
cannot
be
conferred
by
consent.
It
either
exists
or
it
does
not.
Subsection
485(1)
of
the
Code
provides
that
jurisdiction
over
the
offence
is
not
lost
by
virtue
of
improper
adjournments
alone.
Subsection
485(2)
provides
that
a
Court
may
regain
jurisdiction
over
the
person
of
the
defendant
by
the
issuance
of
a
summons
or
warrant
within
three
months
of
the
initial
loss
of
jurisdiction
provided
that
it
has
not
in
the
meantime
been
regained
by
his
voluntary
appearance
or
by
some
other
means.
Subsection
485(3)
provides
that
if
no
summons
or
warrant
is
issued
under
Subsection
2
within
the
time
limited
"the
proceedings
shall
be
deemed
to
be
dismissed
for
want
of
prosecution."
This
section
absolutely
precludes
any
further
process
on
the
original
information.
It
is
very
interesting
to
note
that
these
remedial
sections
apply
to
all
prosecutions
in
every
Court!
Section
485.1
prohibits
the
laying
of
a
new
information
or
the
preferring
of
a
new
Indictment
with
respect
to
the
same
transaction
in
the
absence
of
the
personal
consent
in
writing
of
the
Attorney
General
or
his
Deputy,
where
the
proceedings
are
conducted
by
the
Attorney
General
or
in
which
he
intervenes;
or
by
a
written
order
of
a
judge
of
that
court,
in
any
prosecution
conducted
by
a
person
other
than
the
Attorney
General
or
his
agent,
or
in
which
he
does
not
intervene.
As
I
understand
the
above
sections,
their
application
to
a
summary
conviction
court
precludes
an
adjournment
of
more
than
eight
clear
days
in
the
absence
of
the
consent
of
all
parties.
It
follows
a
fortiori
that
an
adjournment
sine
die
results
in
the
immediate
loss
of
jurisdiction
over
the
person
of
the
defendant,
but
not
at
that
time
over
the
offence
itself.
In
the
event
that
the
above
situation
continues
unabated
for
a
period
in
excess
of
three
months
the
Court
not
only
loses
jurisdiction
over
the
person
of
the
defendant,
but
also
over
the
offence
itself.
This
section
is
mandatory,
and
the
loss
is
permanent
and
cannot
be
regained.
This
Court
finds
that
in
adjourning
matters
sine
die
on
February
7,
1992,
the
Provincial
Court
lost
jurisdiction
over
the
person
of
the
defendant.
Because
jurisdiction
was
not
regained
within
three
months
of
that
date
proceedings
herein
were
deemed
in
law
to
be
dismissed
for
want
of
prosecution
on
or
about
May
7,
1992.
At
that
time
the
instant
information
became
unenforceable
for
any
purpose
and
thereupon
became
null
and
void.
and
this
Court
so
finds.
(3)
Averments
in
Counts:
This
Court
accepts
the
reasoning
of
the
defendant
as
detailed
in
paragraphs
2729
herein
and
finds
that
both
Counts
are
unlawful
in
that
each
lack
the
essential
averments
specified
in
mid
paragraphs.
(4)
"Askov"
Application:
The
defendant
also
requests
a
stay
under
the
provisions
of
subsection
24(1)
of
the
Canadian
Charter
of
Rights
and
Freedoms.
He
bases
his
claim
on
the
Supreme
Court
of
Canada
decision
in
R.
v.
Askov;
(see
paragraph
5
supra.
The
defendant
claims
that
the
many
delays
apparent
in
the
prosecution
of
this
information
have
in
the
aggregate
deprived
him
of
his
Charter
right
to
a
trial
within
a
reasonable
time
as
guaranteed
by
paragraph
11(b)
thereof.
The
Supreme
Court
set
out
four
factors
to
be
considered
by
a
Court
contemplating
an
order
staying
proceedings
based
upon
unreasonable
delay
in
bringing
a
case
to
trial.
They
are
as
set
out
in
paragraph
33
(supra);
the
length
of
the
delay;
the
explanation
for
it;
waiver
by
the
accused;
and
prejudice
to
the
accused
occasioned
by
the
stay.
The
defendant’s
affidavit,
(which
is
reproduced
in
part
in
para
31
supra,)
together
with
the
findings
of
Justice
Riordon;
the
admissions
of
Counsel
and
the
history
of
the
information
itself
as
evidenced
by
the
entries
thereon
have
all
been
considered
by
myself
in
coming
to
a
conclusion
on
this
alternative
ground.
The
defendant
cannot
rely
on
my
previous
findings
on
loss
of
jurisdiction
in
support
of
this
argument.
It
stands
or
falls
on
its
own
merits.
Notwithstanding
the
fact
that
the
defendant
agreed
to
a
delay
of
approximately
one
year,
and
thus
is
deemed
to
have
waived
any
complaint
for
that
period,
the
Crown
has
been
far
from
zealous
in
its
attempts
to
carry
on
this
prosecution.
As
is
apparent
from
my
schedule
of
events
as
chronicled
in
paragraph
35
supra,
the
information
was
laid
on
December
2,
1991.
The
decision
of
the
Supreme
Court
in
Baron
was
delivered
January
21,
1993,
and
the
Crown
still
elected
to
illegally
retain
a
copy
of
the
documents
seized,
and
kept
them
until
after
the
Judgment
of
Mr.
Justice
Riordon
on
November
29,
1993.
Because
of
the
illegal
acts
of
the
Crown,
(including
the
application
for
new
warrants
before
Judge
Stymiest,)
the
defendant
was
required
to
make
applications
to
the
Supreme
Court
for
relief
thus
further
delaying
the
trial
which
said
delays
were
occasioned
solely
by
the
improper
acts
of
the
Crown.
It
is
apparent
from
the
information
itself
that
nothing
happened
in
Provincial
Court
between
February
7,
1992
and
January
10,
1994.
The
defendant
was
not
even
required
to
plead
until
June
15,
1994,
and
no
satisfactory
explanation
for
this
delay
was
offered
by
Crown
Counsel.
Although
the
parties
were
unaware
of
it
at
the
time,
a
vital
witness
for
the
defendant,
one
James
Simpson
died
on
July
19th
of
1994.
It
is
apparent
from
the
affidavit
of
the
defendant
and
the
other
relevant
factors
mentioned
herein
that
he
has
been
prejudiced
as
a
result.
It
is
the
finding
of
this
Court
that
the
instant
factual
situation
satisfies
all
of
the
four
criteria
laid
out
in
Askov
and
a
stay
of
proceedings
is
ordered
herein.
Order
accordingly.
Her
Majesty
The
Queen
v.
Silvio
Solano,
[Indexed
as:
Solano
(S.),
R.
v.]
Alberta
Provincial
Court
(Criminal
Division),
|
(Daniel
J.),
December
6,
1994,
(Doc.
Calgary
|
|
40338642P1,
40338618P1,
40346496P1,
40338667P1,
|
|
40338665PI).
|
40338665P1).
|
Income
tax-Federal-Income
Tax
Act,
R.S.C.
1985,
c.
1
(5th
Supp)-230(l),
Two
corporations,
which
carried
on
business
as
Mexican
restaurants,
and
S,
in
his
capacity
as
director,
were
charged
with
failing
to
file
completed
corporate
income
tax
returns
for
the
1990,
1991
and
1992
years
pursuant
to
notices
served
on
November
2,
1993
requiring
the
respective
filings
on
or
before
January
31,
1994.
In
addition,
S
was
charged
in
his
personal
capacity
with
failing
to
file
a
completed
individual
income
tax
return
for
the
1991
year.
S
raised
the
defence
of
due
diligence.
S
argued
that
he
had
delegated
bookkeeping
and
accounting
tasks
to
others
and
could
not
be
held
responsible
for
their
failures.
HELD:
It
was
admitted
that
the
corporations
did
not
exercise
due
diligence
in
the
maintenance
of
their
books
and
records
as
required
by
subsection
230(1).
Furthermore,
the
Crown
successfully
proved
the
actus
reus,
being
the
failure
to
file
the
requisite
tax
returns
within
the
required
90
day
period.
In
such
circumstances,
the
Crown
had
discharged
its
burden
of
proving
the
elements
of
the
offences
and
the
corporations
were
found
guilty
as
charged.
The
evidence
disclosed
that
S
was
aware
of
his
legal
obligations
and
of
the
mismanagement
of
the
corporations’
books
and
records.
As
director,
S
could
not
delegate
essential
responsibilities
without
retaining
ultimate
accountability.
In
such
circumstances,
S
had
failed
to
show
due
diligence.
In
the
result,
S
was
found
guilty
in
both
his
personal
capacity
and
in
his
capacity
as
director.
Convictions
registered
on
all
counts.
J.P.
Petch
for
the
Crown.
J.K.
Conley
for
the
accuseds.
Cases
referred
to:
R
v.
Rogo
Forming
Ltd.
(1980)
56
C.C.C.
(2d)
31;
R.
v.
Whissell-McLeod
Ventures
Ltd.,
[1994]
1
C.T.C.
141,
140
A.R.
286;
R.
v.
Slupek,
(Wilson
J.),
(Alta.
Q.B.),
January
13,
1992,
Alta
C.A.
(unreported);
The
Queen
v.
Swendson,
[1987]
2
C.T.C.
199,
87
D.T.C.
5335;
Canada
v.
Gill,
[1990]
2
C.T.C.
318,
40
B.C.L.R.
(2d)
360.
Cheryl
L.
Daniel
J.
Charges
The
corporations
Salt
&;
Pepper
Mexican
Restaurant
Ltd.,
and
370259
Alberta
Ltd.
(sometimes
operating
as
The
Red
Iguana
Mexican
Restaurant)
herein
called
the
"Companies",
and
Silvio
Solano
in
his
capacity
as
Director
of
those
Companies
are
charged
with
failing
to
file
completed
Corporation
Income
Tax
Returns
on
Form
T-2,
for
the
years
1990,
1991
and
1992
pursuant
to
Notices
served
on
November
2,
1993
requiring
the
respective
filings
on
or
before
January
31,
1994,
all
contrary
to
subsection
238(1)
of
the
Income
Tax
Act
(the
"Act").
Contrary
to
the
same
section,
and
in
his
personal
capacity,
Silvio
Solano
is
charged
with
failing
to
file
a
completed
Individual
Income
Tax
Return
on
Form
T-l
for
the
1991
year,
pursuant
to
a
notice
served
on
November
2nd,
1993,
requiring
the
filing
on
or
before
January
31,
1994.
Issues
The
issues
relate
to
the
guilt
or
innocence
of
the
companies
and
Silvio
Solano
in
his
individual
capacity
and
as
director
of
the
companies.
(A)
Charges
Against
The
Companies:
(i)
Facts
Counsel
for
the
companies
admitted
the
companies,
through
their
officers,
did
not
exercise
due
diligence
in
the
maintenance
of
their
books
and
records.
It
is
clear
they
did
not
comply
with
subsection
230(1)
of
the
Act,
which
reads
as
follows:
Books
and
Records
Every
person
carrying
on
business
and
every
person
who
is
required,
by
or
pursuant
to
this
Act,
to
pay
or
collect
taxes
or
other
amounts
shall
keep
records
and
books
of
account
(including
an
annual
inventory
kept
in
prescribed
manner)
at
his
place
of
business
or
residence
in
Canada
or
at
such
other
place
as
may
be
designated
by
the
Minister,
in
such
form
and
containing
such
information
as
will
enable
the
taxes
payable
under
this
Act
or
the
taxes
or
other
amounts
that
should
have
been
deducted,
withheld
or
collected
to
be
determined.
To
support
a
conviction
for
this
offence
against
the
companies,
the
Crown
need
merely
prove
the
actus
reus,
while
the
companies
may
exculpate
themselves
by
proof
of
reasonable
care
on
the
part
of
persons
in
control
of
the
operations
of
the
companies
whose
acts
may
be
regarded
as
the
acts
of
the
companies.
(ii)
Conclusion
It
has
been
proven
beyond
a
reasonable
doubt
Revenue
Canada
was
engaged
in
a
genuine
and
ongoing
investigation
into
the
tax
liabilities
of
the
companies
and
the
enforcement
of
the
Act
against
the
companies.
The
notices
to
file
the
requisite
tax
returns
were
in
order
and
properly
served.
The
time
for
compliance
was
reasonable.
In
this
case,
the
Crown
has
proven
the
actus
reus,
being
the
failure
to
file
the
requisite
tax
returns
within
the
required
90-day
period.
It
has
also
been
proven
beyond
a
reasonable
doubt
the
books
and
records
of
both
companies
were
not
kept
as
required
by
subsection
230(1)
above
cited,
and
that
reasonable
care
and
due
diligence
were
not
exercised
by
the
officers
and
directors
of
the
companies.
The
evidence
before
the
Court
falls
far
short
of
establishing
a
defence
of
reasonable
care
and
due
diligence.
The
burden
of
proof
is
upon
the
companies
to
prove
such
defence
upon
a
balance
of
probabilities
and
this
burden
has
not
been
discharged.
The
companies
are,
therefore,
found
guilty
as
charged
in
Information
numbers
#40338667P1
and
40338642P1
respectively.
(B)
Charges
Against
Silvio
Solano:
(i)
Defence
Silvio
Solano’s
defence
revolved
around
his
delegation
of
corporate
administrative
tasks
such
as
bookkeeping
and
accounting
to
the
purview
of
his
son,
Alex
Solano,
who
was
to
maintain
the
ordinary
books
and
records
of
the
companies
and
secure
the
services
of
accountants
to
complete
the
requisite
accounting
necessary
to
file
the
required
returns.
His
counsel
submitted
his
client
faced
strict
liability
offenses
and
that
Silvio
Solano
exercised
due
diligence
in
taking
all
reasonable
steps
to
comply
with
the
Revenue
Canada
demands.
He
submitted
that
for
a
corporate
director
to
be
found
a
guilty
party
to
such
an
offence,
section
242
of
the
Act
required
that
he
be
shown
to
have
"directed,
authorized,
assented
to,
acquiesced
in,
or
participated
in"
the
commission
of
an
offence.
(ii)
Onus
of
Proof
The
onus
of
proof
is
upon
the
Crown
to
prove
all
the
ingredients
of
the
offenses
beyond
a
reasonable
doubt,
including
the
elements
of
active
or
passive
participation
in
the
substantive
offenses
within
the
meaning
of
those
key
words.
Passive
participation
would
require
proof
that
Silvio
Solano,
having
knowledge
of
the
circumstances
surrounding
the
default
of
the
companies
and
being
in
a
position
to
influence
the
conduct
of
the
companies,
stood
by
and
allowed
the
infraction
to
occur
without
taking
any
reasonable
steps
to
prevent
it,
all
as
stated
in
the
case
of
R
v.
Rogo
Forming
Ltd.
(1980)
56
C.C.C.
(2d)
31
(Ont.
Prov.
Ct.).
(iii)
Definitions
The
Act
introduces
five
concepts
of
conduct
by
which
a
person
other
than
the
taxpayer
involved
may
be
guilty
of
an
offence
as
a
party:
assent,
acquiescence,
participation,
direction
and
authorization.
In
Webster’s
Third
New
International
Dictionary
(New
York:
1985),
the
terms
are
defined
as
follows:
acquiesce
...
to
accept
or
comply
tacitly
or
passively;
accept
as
inevitable
or
indisputable-often
used
with
"in",
sometimes
used
with
"to",
and
formerly
with
"with"...
assent...to
give
or
express
one’s
concurrence,
acquiescence,
or
compliance:
consent...
authorize...to
endorse,
empower,
justify,
or
permit
by
or
as
if
by
some
recognized
or
proper
authority
(as
custom,
evidence,
personal
right,
or
regulating
power)
a
new
version:
sanction...
direct...to
regulate
the
activities
or
course
of;
to
guide
and
supervise;
to
administer,
conduct...
participate...to
take
part
in
something
(as
an
enterprise
or
activity)
usually
in
common
with
others...
I
adopt
the
interpretations
of
these
words
as
set
out
in
Tax
Evasion
in
Canada
by
William
I.
Innes,
Carswell,
1987
at
page
79:
The
concept
of
participation
in
an
offence
seems
reasonably
clear,
in
that
it
would
involve
actively
joining
in
the
conduct
of
a
person
committing
an
offence
under
the
Act.
The
concept
of
assent
seems
to
imply
something
less
than
active
participation,
that
is,
the
expression
of
concurrence
without
the
necessity
of
taking
an
active
role
in
the
perpetration
of
the
offence.
Acquiescence
would
seem
to
be
even
further
removed
from
the
action,
involving
a
tacit
consent
or
perhaps
a
wilful
blindness.
In
the
case
of
offenses
by
corporations,
the
concepts
of
a
direction
and
authorization
would
seem
to
be
quite
closely
related.
The
former
concept
appears
to
be
closer
to
the
day-to-day
administration
of
the
operations
of
the
corporation;
the
latter
appears
to
involve
the
formal
authorization
of
conduct
(for
example
by
a
Board
of
Directors).
(iv)
Case
Law
Reference
was
made
to
a
number
of
cases
respecting
the
requistes
which
must
be
present
to
find
Director’s
liability:
R.
v.
Whissell-McLeod
Ventures
Ltd.,
[1994]
1
C.T.C.
141,
140
A.R.
286
(Alta.
Q.B.)
(appeal
dismissed
on
October
31,
1994
and
memorandum
or
Reasons
not
yet
available);
R.
v.
Slupek,
(Wilson,
J.),
(Alta.
Q.B.),
January
13,
1992,
Alta
C.A.
(unreported);
The
Queen
v.
Swendson,
[1987]
2
C.T.C.
199,
87
D.T.C.
5335
(Alta.
Q.B.)
and
R.
v.
Gill,
[1990]
2
C.T.C.
318,
40
B.C.L.R.
(2d)
360
(B.C.
Co.
Ct.)
Of
particular
interest
from
the
Gill
decision
is
the
quotation
at
page
8
of
Harris,
C.C.J.:
I
have
noted
the
evidence
of
Mr.
Leonard
McIntosh,
C.A.
for
the
defence
to
the
effect
that
the
books
of
the
various
companies
at
the
time
the
demands
were
served
were
in
a
mess
and
would
have
required
four
to
six
months
of
professional
work
and
a
cost
of
between
$25,000
and
$40,000
to
do
a
proper
full
return
situation.
That
in
my
view
does
not
constitute
a
valid
defence
to
any
of
the
charges:
The
operator
of
any
business
(whether
an
individual
or
limited
company)
is
under
a
duty
to
maintain
such
proper
books
of
account
and
financial
records
as
to
enable
that
person
to
comply
with
his
or
its
statutory
reporting
duties
to
the
Revenue
authorities:
If
a
taxpayer
fails
regularly
to
maintain
its
records,
and
allows
them
to
get
in
such
a
state
that
his
or
its
income
tax
obligations
can
only
be
fulfilled
through
a
lengthly
and
costly
investigation
which
the
taxpayer
may
have
difficulty
in
affording,
the
taxpayer
does
so
at
his
peril.
This
view
of
the
law
was
accepted
by
the
Court
in
the
Whissell-McLeod
case.
(v)
Facts
After
hearing
and
considering
all
the
evidence,
I
find
the
following
facts.
370159
Alberta
Ltd.,
sometimes
operating
as
The
Red
Iguana
Mexican
Restaurant,
was
incorporated
August
10,
1987
and
is
a
valid
and
subsisting
company
currently
in
bankruptcy.
Salt
and
Pepper
Mexican
Restaurant
Ltd.
was
incorporated
on
August
9,
1987
and
was
as
of
November
2,
1993,
a
valid
and
subsisting
corporation,
however,
action
had
been
initiated
to
strike
the
corporation
from
the
register
and
it
was
struck
off
the
register
and
deemed
to
have
ceased
to
carry
on
business
in
the
Province
of
Alberta
on
January
3,
1994.
A
certificate
of
dissolution
issued
March
1,
1994.
The
companies
carried
on
active
businesses
as
Mexican
Restaurants
during
the
periods
in
question
and
had
substantial
monthly
sales.
The
GST
investigators
assessed
$1
million
in
sales
and
$70,000
in
GST
owing,
which
latter
sum
was
seized
from
the
companies’
bank
accounts
in
the
early
fall
of
1993.
All
requisite
tax
filings
for
1989
were
completed.
Completed
corporate
tax
returns
for
the
corporations
in
Form
T-2
were
not
filed
for
the
years
1990,
1991
and
1992,
nor
did
Silvio
Solano
file
his
Individual
Tax
Return
in
Form
T-l
for
1991.
Silvio
Solano
had
worked
as
a
chef
in
various
Mexican
Restaurants
since
coming
to
Canada
in
1970.
From
1989
to
its
dissolution,
Silvio
Solano
was
the
sole
Director
of
Salt
&;
Pepper
Mexican
Restaurant
Ltd.
From
1989
to
the
date
of
trial,
Silvio
Solano
and
his
son
Alex
Solano
were
the
only
Directors
of
370259
Alberta
Ltd.
On
November
2,
1993,
both
Alex
Solano
and
Silvio
Solano
were
properly
served
with
Notices
pursuant
to
the
provisions
of
paragraph
231.2(l)(a)
of
the
Income
Tax
Act
to
file
completed
Corporate
Income
Tax
Returns
(T-2)
for
the
companies
for
the
1990,
1991
and
1992
taxation
years
within
90
days.
Silvio
Solano
was
served
with
a
similar
Notice
with
respect
to
his
Individual
Return
(T-l)
for
the
1991
year.
No
such
corporation
or
individual
returns
were
filed
by
the
requisite
date
(being
January
31,
1994),
nor
have
any
been
filed
to
the
date
of
trial.
The
demands
for
filing
the
requested
returns
resulted
from
an
ongoing
investigation
by
Revenue
Canada
and
followed
an
investigation
commenced
in
May
of
1993
by
the
Revenue
Canada
GST
branch
with
respect
to
GST
infractions.
Revenue
Canada
was
conducting
a
genuine
and
ongoing
investigation
into
the
tax
liabilities
of
the
accused
personally
as
well
as
the
companies.
The
90
days
given
for
response
was
reasonable,
notwithstanding
the
state
of
Silvio
Solano’s
personal
records
and
the
companies’
books
and
records.
Upon
undertaking
his
responsibilities
as
a
Director,
Silvio
Solano
received
legal
and
accounting
advice
as
to
the
legal
and
accounting
responsibilities
which
accrued
to
him
as
a
Director
of
a
corporation.
He
knew
he
had
the
responsibility
to
ensure
a
corporation
of
which
he
was
a
Director
complied
with
Canadian
laws.
He
was
well
aware
he
was
required
to
file
personal
and
corporate
income
tax
returns
and
fully
expected
to
owe
taxes
as
he
and
his
sons
had
been
taking
personal
income
from
the
companies
and
the
Companies
had
been
turning
a
profit.
As
its
sole
Director,
he
was
the
only
directing
mind
of
Salt
&;
Pepper
Mexican
Restaurant
Ltd.
While
he
delegated
to
Alex
the
primary
responsibilities
for
accounting
and
legal
matters
(while
he
focussed
on
food
preparation),
and
presumed
Alex
was
complying
with
those
duties,
it
is
clear
Silvio
Solano
also
met
with
the
accountants
and
lawyer
on
a
substantial
number
of
occasions
and
at
least
knew
the
companies’
general
state
of
affairs.
Clearly
he
would
have
realized
he
had
not
submitted
his
personal
T-1
for
1991
and
should
have
been
vigilant
on
a
frequent
basis
as
to
its
progress
towards
completion.
He
knew
he
was
required
to
keep
business
records
and
he
knew
there
were
cash
tapes,
cheque
stubs
and
receipts.
Six
months
before
Revenue
Canada
demanded
tax
returns
(being
May
of
1993,
when
demands
for
information
were
made
respecting
GST
accounting),
his
lawyer
specifically
told
him
to
get
all
the
paperwork
done
or
’’something
serious
may
happen".
He
knew
there
would
be
grave
consequences
if
he
failed
to
comply.
Until
the
GST
funds
owing
were
seized
by
Revenue
Canada
in
the
fall
of
1993,
there
was
at
least
$70,000
that
could
have
been
applied
for
accounting
work.
Silvio
Solano
had
known
the
companies’
records
were
in
a
mess
for
over
1
1/2
years
prior
to
the
demands
from
Revenue
Canada
Taxation
and
for
over
one
year
prior
to
demands
made
respecting
amounts
owed
for
GST.
He
had
known
since
April
30,
1992
that
his
personal
income
tax
return
(T-l)
for
1991
was
not
filed.
He
knew
since
at
least
that
time,
the
companies’
books
and
records
were
not
in
a
condition
to
provide
the
information
necessary
to
accurately
prepare
his
T-1
for
1991.
He
also
knew
that
Alex
had
not
properly
overseen
the
accountants
and
notwithstanding
this
he
allowed
Alex
to
continue
to
manage
the
financial
end
of
the
companies.
Silvio
Solano
knew
the
accounts
were
in
too
much
of
a
mess
for
one
accountant
to
fix.
He
knew
in
November
1993,
that
the
accountant,
Daphne
Wadlin,
could
not
do
the
requisite
accounting
within
the
90
day
time
period
specified.
In
November
1993,
he
knew
she
did
not
even
have
the
basics
to
complete
the
accounting:
original
books
of
entry,
bank
statements,
general
ledgers,
journals,
source
tapes,
receipts,
cancelled
cheques
and
cheque
stubs.
He
actually
met
with
the
accountant,
Daphne
Wadlin,
twice
in
November
1993
after
he
had
received
the
notices
to
file
the
income
tax
returns
and
did
not
mention
their
receipt.
Although
he
did
instruct
her
to
get
the
accounts
done
as
soon
as
possible,
he
left
her
with
the
impression
the
only
corporate
concern
was
satisfying
the
GST
requirements
and
securing
FBDB
financing.
He
did
not
instruct
her
to
prepare
his
personal
1991
T-1
or
the
requisite
T-2’s
for
the
companies,
either
before
or
immediately
upon
receiving
those
notices.
He
did
not
ask
either
of
the
two
accountants
who
had
been
hired
(one
for
current
processing
and
one
for
past
years
processing),
to
focus
their
dual
efforts
on
completing
the
1990
Corporate
T-2
and
on
his
1991
T-l,
notwithstanding
there
was
some
suggestion
there
was
enough
information
in
the
files
to
complete
same
as
the
first
accountant
thought
he
had
done
the
1991
T-l
but
simply
could
not
find
it
in
the
messy
records.
Daphne
Wadlin
(the
accountant
for
past
accounting
due)
only
found
out
about
the
T-l
and
T-2
requirements
in
late
December,
1993
or
early
January
of
1994.
Had
Silvio
Solano
made
the
T-l
requirement
immediately
known
to
her,
Daphne
Wadlin
postulated
she
could
have
completed
it
in
the
required
time,
and
if
absolutely
necessary,
could
have
advised
him
to
file
an
estimated
return.
Daphne
Wadlin
was
missing
so
much
information
and
the
books
and
records
were
in
such
a
mess,
that
she
indicated
she
could
not
have
had
everything
done
by
the
deadline.
Had
she
had
all
the
information
and
had
the
books
and
records
been
in
appropriate
form,
she
thought
she
could
have
at
least
properly
completed
2
of
the
T-2
returns.
Indeed,
with
additional
help
and
had
she
known
of
the
absolute
time
restraints,
she
may
even
have
been
able
to
complete
estimated
corporate
returns
for
all
the
years
required.
Knowing
the
accounting
could
not
be
done
on
time
by
Daphne
Wadlin,
and
understanding
the
serious
import
of
failure
to
file
the
returns,
Silvio
Solano
did
not
instruct
additional
accountants
or
bookkeepers
to
be
hired
to
complete
the
returns.
As
it
transpired,
in
all
the
calls
and
meetings
Alex
had
with
the
accountants,
he
never
actually
advised
Daphne
Wadlin
of
the
service
of
the
Notices
to
File
received
on
November
2,
1993.
Rather,
he
confirmed
the
requirements
only
after
Daphne
Wadlin
had
found
out
from
the
lawyer
that
there
was
a
January
31,
1994
deadline
for
the
filing
of
those
returns.
By
the
time
Revenue
Canada
filed
its
Notices
to
File,
the
Companies’
records
had
been
badly
mismanaged
and
were
in
a
terrible
state
of
affairs.
Silvio
Solano
knew
his
legal
obligations
and
the
seriousness
of
them.
Had
he
acted
decisively
either
in
1991,
1992
or
early
1993
to
put
the
accounting
in
order,
neither
the
problems
with
GST
nor
with
Revenue
Canada
Taxation
may
have
arisen.
Had
he
ensured
the
books
and
records
were
kept
up
to
date
on
a
regular
basis
and
confirmed
the
appropriate
bookkeeping
and
journal
entries
were
made
to
comply
with
subsection
230(1),
the
records
would
not
have
fallen
so
badly
in
arrears
and
essential
records
may
not
have
gone
missing.
He
delegated
the
accounting
problems
to
others
without
the
proper
follow-up
and
control
which
he
as
sole
Director
in
one
case
and
as
Co-Director
in
the
other,
had
the
legal
obligation
to
maintain.
When
the
demands
for
the
returns
were
made,
he
accepted
the
situation
and
acquiesced
in,
authorized,
permitted
and
sanctioned
his
son’s
plans
for
compliance,
even
though
he
knew
the
proposed
course
of
action
was
not
going
to
produce
the
requisite
results
in
the
time
allotted.
While
he
twice
met
with
the
accountant
and
participated
in
directing
the
accountants,
he
did
not
advise
them
of
Revenue
Canada’s
requirements
for
filing
the
T-1
and
T-2s.
Silvio
Solano
excused
his
ultimate
responsibility
by
saying
it
was
"hard
to
fit
in
’production’
[meaning
work
in
the
kitchen]
with
an
accountant
and
lawyer"
and
that
he
was
"a
little
bit
busy
in
November
and
December"
with
his
role
as
chef
in
the
restaurants.
He
said
be
"did
not
have
a
chance
to
follow
up"
with
his
son
as
to
how
the
accounts
were
progressing.
He
did,
however,
have
at
least
weekly
meetings
with
his
son
Alex,
at
which
time
Alex
would
report
to
his
father
as
to
how
business
and
accounting
matters
were
progressing.
On
some
of
those
occasions,
Silvio
Solano
would
give
instructions
to
his
son
and
his
son
would
follow
them,
such
as
telling
his
son
these
were
"very
touchy
matters"
and
instructing
his
son
to
"look
after
them".
He
offered
his
limited
education,
his
role
as
chef
and
handicap
with
the
English
language
as
an
excuse.
He
also
stated
he
delegated
these
duties
to
Alex
and
trusted
his
son
to
complete
them
properly.
His
son
let
him
down
and
let
the
accounts
get
in
such
a
disarray
non-compliance
with
the
notices
was
inevitable.
Silvio
Solano
now
wishes
to
exonerate
himself
from
responsibility
due
to
his
misguided
trust
in
his
son.
He
blames
all
of
this
on
his
son
and
a
lack
of
cash.
He
suggests
he
could
have
done
nothing
more
than
he
did.
(vi)
Director’s
Duties
I
find
he
cannot
absolve
himself
from
responsibility
by
hiding
behind
his
son’s
negligence.
More
than
anything,
it
is
Silvio
Solano’s
inattentiveness
to
accounting
requirements
and
his
failure
to
maintain
control
and
take
responsibility
as
was
his
legal
duty,
which
initially
caused
the
accounts
to
be
in
such
a
sorry
state.
His
initial
passive
participation
was
not
substantially
changed
once
he
received
the
notices
to
file
in
November
1993.
Directors
must
act
honestly
and
in
good
faith.
They
must
exercise
the
care,
diligence
and
skill
that
a
reasonably
prudent
person
would
exercise
in
the
circumstances.
A
Director
cannot
delegate
essential
responsibilities
without
retaining
ultimate
accountability.
Accountability
for
proper
fiscal
management
lies
with
the
companies’
Directors.
A
Director
who
assumes
those
responsibilities
and
subsequently
ignores
or
abdicates
those
duties
does
so
at
his
peril.
(vii)
Conclusion
(A)
Silvio
Solano
as
Director
The
essential
elements
of
the
charges
against
Silvio
Solano
in
his
capacity
as
Director
of
the
companies
have
been
proven
beyond
a
reasonable
doubt.
I
find
it
has
also
been
proven
beyond
a
reasonable
doubt
that
Silvio
Solano,
in
his
capacity
as
Director
of
the
companies,
acquiesced,
assented,
authorized,
directed
and
participated
in
the
offenses
referred
to
above
against
the
Companies
and
for
which
they
have
been
found
guilty.
Silvio
Solano
is
thus
found
guilty
as
charged
on
Informations
#
40346496P1
and
40338618P1.
(B)
Silvio
Solano
in
his
Personal
Capacity
With
respect
to
Silvio
Solano’s
failure
to
file
his
1991
personal
T-l
within
the
requisite
time
period
as
indicated
on
the
validly
served
Notice
to
File.
I
find
he
did
not
take
reasonable
steps
to
ensure
its
filing,
nor
did
he
exercise
due
diligence
in
this
regard.
I
find
Revenue
Canada
was
engaged
in
a
serious,
genuine
and
ongoing
investigation
and
that
the
time
allotted
to
him
for
completion
of
same
was
reasonable
in
the
circumstances.
He
is
thus
found
guilty
as
charged
in
Information
#40338675P1.
Accused
convicted.
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