Scullion, Prov. Ct. J. [Orally]: —This is an application by the accused for me to review my rulings that were made on November 24 and December 22, 1987. Review of the facts is in order and I am quoting mostly from the defence's Outline of Argument.
On December 3, 1986, an information was laid charging the accuseds with offences allegedly committed contrary to paragraphs 239(1)(a) and 239(1)(d) of the Income Tax Act, S.C. 1970-71-72, c. 63, as amended (herein the
"I.T.A.").
On November 23, 1987, before entering a plea, the defendants moved to quash the information on the grounds that paragraph 239(1)(d) I.T.A. was inconsistent with sections 7 and 11(a) of the Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) (herein the "Charter"), and consequently, pursuant to section 52 of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) (herein the "Constitution") was of no force or effect.
On November 24, 1987, the Court presided by myself, dismissed the defendants' motion referred to above and ruled that the provisions of paragraph 239(1)(d) I.T.A. did not breach the provisions of the Charter, and, after referring to R. v. Cohn (1984), 42 C.R. (3d) 1, held that I was bound by the decisions of the Ontario Court of Appeal in R. v. Morgentaler et al. (1985), 22 C.C.C. (3d) 353; 48 C.R. (3d) 1, and Century 21 Ramos Realty Inc. et al. v. The Queen, [1987] 1 C.T.C. 340; 87 D.T.C. 5158.
I made a ruling at that time where I stated:
The Crown set out the facts in Ramos and reading those facts, it becomes very, very clear that the information on which Mr. Ramos and Century 21 were charged are almost identical with the informations that the accuseds are charged with. The Court of Appeal does not appear to have any problem at all with going through the facts of the case and coming to certain conclusions as to what the evidence is and how it relates to the charge itself. There is no suggestion by the Court as I read Century 21 that there was any problem as to vagueness or that the section is unconstitutional.
In fact, they come to the conclusion that the section is constitutional.
It is to be noted that Mr. Justice Martin sat on all three appeals: R. v. Cohn; R. v. Morgentaler; R. v. Century 21 Ramos Realty Inc. and Ramos (supra). And I have difficulty to believe that Martin, J. was not alive to the provisions of s. 11(a) when they were dealing with those three judgments. The Court of Appeal on all three of these judgements has come to the conclusion that the sections that they are dealing with are not vague to the point where there is a breach of s. 7 or s. 11(a) of the Charter.
I have a lot of sympathy for the accused's position when I read Section 239(1). I would have thought that section 239(1) in its wording, and the complexity of the Canadian Income Tax and its Regulations, the number of offences that are in the Act and the problems that face an accused person when attempting to defend himself against such a section that would have been declared unconstitutional. I have great sympathy for that position but I think that I am bound by the Court of Appeal.
The Court of Appeal has found that the law of contempt which has evolved over a thousand years, the sections dealing with criminal negligence and abortion are all unconstitutional. The Court dealing again with section 239(1) in R. v. Ramos, supra, found this section constitutional. Martin, J. sat on all three of these appeals, as I said, I find it very difficult to believe that he was not alive to that question. Defence counsel says that it was not directly put to them, and I agree as I read the judgments, it certainly was not directly put to them. But I find it very difficult to imagine that the Court of Appeal was not aware of Section 11(a), of the Charter, and in the circumstances, the application is refused.”
The trial then began, the defendants moved to quash the information charging them with offences allegedly committed before December 3, 1981, on the grounds that prosecution of the said offences was barred, the information having been laid more than five years after the alleged commission of the said offences, that there was no evidence of the conditions precedent to the one-year limitation period and that, in any event, subsection 244(4) I.T.A. was inconsistent with sections 7, 11(a) and 15 of the Charter and consequently pursuant to section 52 of the Constitution, was of no force or effect.
After having heard evidence on a voir dire and having listened to arguments from both counsel, I dismissed the application.
Then, on December 22, 1987, I ruled that I was bound by the decision of the Supreme Court of Ontario in Pica et al. v. The Queen, [1985] 1 C.T.C. 73; 85 D.T.C. 5041 on the issue of personal knowledge and James v. The Queen, [1984] C.T.C. 672; 84 D.T.C. 6570 on the validity of subsection 244(4) I.T.A.
On March 1, 1988, the defendants made an application for certiorari and prohibition to the Supreme Court of Ontario with respect to the rulings of November 24, 1987, and December 22, 1987.
On March 1, 1988, Mr. Justice Maloney dismissed the defendants' application on the basis that because the trial had commenced, the Supreme Court of Ontario's supervisory powers ought not to be exercised. In his reasons, Mr. Justice Maloney stated:
Though I have some misgivings about the correctness of both those rulings, it is clear that they can, inter alia, be the subject matter of an appeal at the conclusion of the trial if the result thereof is unfavourable, on the merits, to the accused (the applicants before me).
For example, it appears to me that in respect of the Charter attack on section 239(1)(d) Scullion Prov. Ct. J. ascribed to three decisions of our Court of Appeal (R. v. Cohn, R. v. Morgentaler and R. v. Century 21 Ramos) an effect which they may not have at all; he considered them as being determinative of a point which seemingly had not been raised at all in the course of argument or of the Court's deliberations. Notwithstanding, it appears as though these decisions led him to a conclusion he was otherwise disinclined to reach.
The defence now ask me to reverse both of those rulings. And I have heard argument over a two-day period dealing with my power to reverse my rulings and on the merits of the cases.
I am instructed by both counsel that although Mr. Justice Maloney had the factums of both counsel, and I take it that Mr. Justice Maloney read both factums, that the only issue that was really argued before Mr. Justice Maloney was whether or not he should intervene with the Supreme Court's supervisory powers, and entertain the application.
It appears that Mr. Justice Maloney was satisfied from the numerous authorities that were put before him by the Crown that he should not exercise the supervisory powers of the Supreme Court and sent the matter back to be heard by me.
I should state that the argument began on May 9 and continued through until today before me and I heard both counsel extensively.
The defence argues (a) there is no longer any impediment from holding paragraph 239(1)(d) I.T.A. of no force or effect; and (b) in any event, the prosecution has failed to prove that the offences alleged to have been committed prior to December 3, 1981 were not barred.
Since this matter left this Court on December 22, 1987, the decision of Morgentaler, Smoling and Scott v. The Queen, [1988] 1 S.C.R. 30; 37 C.C.C. (3d) 449 has been brought down by the Supreme Court of Canada. And the Court of Appeal in Regina v. Morgentaler has been overruled.
I wish to deal, firstly, with the paragraph 239(1)(d) I.T.A. and whether or not I should reverse my ruling on that section.
Defence counsel argues that the Supreme Court of Canada in Morgentaler, supra, found the impugned provisions which were found by the Court of Appeal not to be overly vague as to violate the Charter, and to be inconsistent with the provisions of the Charter and consequently of no force or effect.
And, the Supreme Court of Canada held, inter alia, that such provisions were inconsistent with the provisions of the Charter in that the statutory scheme of the Criminal Code, R.S.C. 1970, c. C-34, as amended (herein the “Cr. C") relating to abortions failed to provide clear norms, definitions, standards, and guidelines for the application of its provisions, and left unacceptable room for arbitrary decisions to be made by those responsible for the application of those provisions.
The defence argues that the Supreme Court of Canada clearly accepted the proposition that vagueness in the context of penal statutes was fatal and could not be remedied by mere administrative policies or practices purporting to provide uniform application of overly vague provisions. It was stated that such uncertainty in the application of statutory provisions was clearly in conflict with the principles of fundamental justice. The Chief Justice, in discussing whether the infringement was in accordance with the principles of fundamental justice, stated:
At page 64 (C.C.C. 472):
Interestingly, the term "health" is not defined for the purposes of s. 251, so it would appear that the therapeutic abortion committees are free to develop their own theories as to when a potential impairment of a woman's "health" would justify the granting of a therapeutic abortion certificate.
At page 68 (C.C.C. 474):
A further flaw with the administrative system established in s. 251(4) is the failure to provide an adequate standard for therapeutic abortion committees which must determine when a therapeutic abortion should, as a matter of law, be granted.
It was noted above that "health" is not defined for the purposes of the section. The Crown admitted in its supplementary factum that the medical witnesses at trial testified uniformly that the "health" standard was ambiguous, but the Crown derives comfort from the fact that "the medical witnesses were unanimous in their approval of the broad World Health Organization defines "health" not merely as the absence of disease or infirmity, but as a state of physical, mental and social well-being.
I do not understand how the mere existence of a workable definition of "health" can make the use of the word in s. 251(4) any less ambiguous when that definition is nowhere referred to in the section. There is no evidence that therapeutic abortion committees are commonly applying the World Health Organization definition. Indeed, the Badgley Report indicates that the situation is quite the contrary (p. 20):
There has been no sustained or firm effort in Canada to develop an explicit and operational definition of health, or to apply such a concept directly to the operation of induced abortion. In the absence of such a definition, each physician and each hospital reaches an individual decision on this matter. How the concept of health is variably defined leads to considerable inequity in the distribution and the accessibility of the abortion procedure.
Various expert doctors testified at trial that therapeutic abortion committees apply widely differing definitions of health.
At page 69 (C.C.C. 475):
It is not typically possible for women to know in advance what standard of health will be applied by any given committee. Parker A.C.J.H.C., at page 37, found clear evidence that s. 251(4) provided no adequate guidelines for therapeutic abortion committees charged with determining when an abortion should legally be available:
The [Badgley] report, and other evidence adduced in support of this motion, indicates that each therapeutic abortion committee is free to establish its own guidelines and many committees apply arbitrary requirements. Some committees refuse to approve applications for second abortions unless the patient consents to sterilization, others require psychiatric assessment, and others do not grant approval to married women.
It is no answer to say that “health” is a medical term and that doctors who sit on therapeutic abortion committees must simply exercise their professional judgment.
At pages 69-70 (C.C.C. 476) :
When the decision of the therapeutic abortion committee is so directly laden with legal consequences, the absence of any clear legal standard to be applied by the committee in reaching its decision is a serious procedural flaw.
The combined effect of all of these problems with the procedure stipulated in s. 251 for access to therapeutic abortions is a failure to comply with the principles of fundamental justice. In Re B.C. Motor Vehicle Act, Lamer, J. held, at p. 503, that "the principles of fundamental justice are to be found in the basic tenets of our legal system. One of the basic tenets of our system of criminal justice is that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory. The criminal law is a very special form of governmental regulation, for it seeks to express our society's collective disapprobation of certain acts and omissions. When a defence is provided, especially a specifically-tailored defence to a particular charge, it is because the legislator has determined that the disapprobation of society is not warranted when the conditions of the defence are met.
And at page 72-73 (C.C.C. 478):
Similarly, Parliament must be given room to design an appropriate administrative and procedural structure for bringing into operation a particular defence to criminal liability. But if that structure is "so manifestly unfair, having regard to the decisions it is called upon to make, as to violate the principles of fundamental justice”, that structure must be struck down. In the present case, the structure — the system regulating access to therapeutic abortions — is manifestly unfair. It contains so many potential barriers to its own operation that the defence it creates will in many circumstances be practically unavailable to women who would prima facie qualify for the defence, or at least would force such women to travel great distances at substantial expense and inconvenience in order to benefit from a defence that is held out to be generally available.
I conclude that the procedures created in s. 251 of the Criminal Code for obtaining a therapeutic abortion do not comport with the principles of fundamental justice. It is not necessary to determine whether s. 7 also contains a substantive content leading to the conclusion that, in some circumstances at least, the deprivation of a pregnant woman's right to security of the person can never comport with fundamental justice. Simply put, assuming Parliament can act, it must do so properly.
And the defence argues that the above extracts make it plain that the doctrine of Void for Vagueness is now enshrined in the protection under section 7 of the Charter.
I have great difficulty with the Morgentaler decision. The Court was composed of Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and La Forest J].
The first judgment was given by Dickson, C.J.C., with Lamer, J. concurring. The second judgment was given by Beetz, J., with Estey, J. concurring. And then, the third judgment was given by Wilson, J., with the conclusion that five out of the seven justices overruled the Court of Appeal's decision. The dissent was given by McIntyre, J., with La Forest, J. concurring. So we have a majority decision with three judgments and the dissenting decision with the one judgment.
The Supreme Court of Canada does not really deal with the issue that was before me on December 22, 1987.
At page 47 (C.C.C. 458), the Chief Justice outlines the following constitutional questions:
1. Does s. 251 of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms?
2. If s. 251 of the Criminal Code of Canada infringes or denies the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights and Freedoms, is s. 251 justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
3. Iss. 251 of the Criminal Code of Canada ultra vires the Parliament of Canada? 4. Does s. 251 of the Criminal Code of Canada violate s. 96 of the Constitution Act, 1867?
5. Does s. 251 of the Criminal Code unlawfully delegate federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees, and in doing so, has the Federal Government abdicated its authority in this area?
6. Do ss. 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms.
7. If ss. 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7,11(d), 11(f), 11(h) and 24(1) of the Canadian Charter of Rights and Freedoms, are ss. 605 and 610(3) justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 19822
The relevant sections of the Criminal Code and the Constitution Act as set out by the Chief Justice gives the procedural history.
Then, at page 51 (C.C.C. 461), he states:
In my opinion, it is neither necessary nor wise in this appeal to explore the broadest implications of s. 7 as counsel would wish us to do. I prefer to rest my conclusions on a narrower analysis than that put forward on behalf of the appellants. I do not think it would be appropriate to attempt an all-encompassing explication of so important a provision as s. 7 so early in the history of Charter interpretation. The court should be presented with a wide variety of claims and factual situations before articulating the full range of s. 7 rights. I will therefore limit my comments to some interpretive principles already set down by the court and to an analysis of only two aspects of s. 7, the right to "security of the person” and "the principles of fundamental justice”.
And further he says at page 55 (C.C.C. 465):
It may well be that constitutional protection of the above interests is specific to, and is only triggered by, the invocation of our system of criminal justice. It must not be forgotten, however, that s. 251 of the Code, subject to subs. (4), makes it an indictable offence for a person to procure the miscarriage and provides a maximum sentence of two years in the case of the woman herself, and a maximum sentence of life imprisonment in the cases [sic] of another person. Like Justice Beetz, I do not find it necessary to decide how s. 7 would apply in other cases.
And further:
I wish to reiterate that finding a violation of security of the person does not end the s. 7 inquiry. Parliament could choose to infringe security of the person if it did so in a manner consistent with the principles of fundamental justice. The present discussion should therefore be seen as a threshold inquiry and the conclusions do not dispose definitively of all the issues relevant to s. 7. With that caution, I have no difficulty concluding that the encyclopedic factual submissions addressed to us by counsel in the present appeal establish beyond any doubt that s. 251 of the Criminal Code is prima facie a violation of the security of the person of thousands of Canadian women who have made the difficult decision that they do not wish to continue with a pregnancy.
So it is clear that the Chief Justice was dealing with the violation of the woman's right to privacy and whether or not the procedures are consistent with the principles of fundamental justice nor does he really deal with the issue of vagueness.
However, in a concurring decision, Beetz, J. at page 106 (C.C.C. 504) of the decision says:
The principles of fundamental justice
I turn now to a consideration of the manner in which pregnant women are deprived of their right to security of the person by s. 251. Section 7 of the Charter states that everyone has the right not to be deprived of security of the person except in accordance with the principles of fundamental justice. As I will endeavour to demonstrate, s. 251(4) does not accord with the principles of fundamental justice.
I am of the view, however, that certain elements of the procedure for obtaining a therapeutic abortion which counsel for the appellants argued could not be saved by the second part of s. 7 are in fact in accordance with the principles of fundamental justice. The expression of the standard in s. 251(4)(c), and the requirement for some independent medical opinion to ascertain that the standard has been met as well as the consequential necessity of some period of delay to ascertain the standard are not in breach of s. 7 of the Charter.
Counsel for the appellants argued that the expression of the standard in s. 251(4)(c) is so imprecise that it offends the principles of fundamental justice. He submits that pregnant women are arbitrarily deprived of their s. 7 right by reason of the different meanings that can be given to the word “health” in s. 251 (4)(c) by therapeutic abortion committees.
I agree with Mr. Justice McIntyre and the Ontario Court of Appeal that the expression "the continuation of the pregnancy of such female person would or would be likely to endanger her life or health" found in s. 251 (4)(c) does provide, as a matter of law, a sufficiently precise standard by which therapeutic abortion committees can determine when therapeutic abortions should be granted.
As the Court of Appeal said at pp. 387-8 C.C.C., p. 676 D.L.R.:
In this case . . . from a reading of s. 251 with its exceptions, there is no difficulty in determining what is proscribed and what is permitted. It cannot be said that no sensible meaning can be given to the words of the section. Thus, it is for the courts to say what meaning the statute will bear.
Chief Justice Laskin held in Morgentaler 1975 that s. 251(4)(c) was not so vague so as to constitute a violation of “security of the person" without due process of law under s. 1(a) of the Canadian Bill of Rights (at p. 463 C.C.C., p. 175 D.L.R., p. 634 S.C.R.):
It is enough to say that Parliament has fixed a manageable standard because it is addressed to a professional panel, the members of which would be expected to bring a practised judgment to the question whether "the continuation of the pregnancy ... would or would be likely to endanger ... life or health”. Moreover, I am of the view that Parliament would assign such an exercise of judgment to a professional group without colliding with any imperatives called for by due process of law under s. 1(a).
So, in effect, we have four of the seven judges of the Supreme Court of Canada agreeing with the decision of the Court of Appeal as regards to whether or not the paragraph 251(4)(c) is in effect constitutional in that it can be read and given sensible meaning and that the section is constitutional in that effect.
So, after reading Morgentaler and I wish to quote just one more paragraph from Mr. Justice Beetz where he says at p. 109 (C.C.C. 506):
Not only is the standard expressed in s. 251(4)(c) sufficiently precise to permit therapeutic abortion committees to determine when therapeutic abortions should be granted, but the crime of procuring a miscarriage is expressed with sufficient clarity for those subject to its terms so as not to offend the principles of fundamental justice. In this respect, counsel for the respondent correctly observed in his written argument that
. . . s. 251 presents no degree of uncertainty or vagueness as to potential criminal liability: anyone charged with an offence would know whether prohibited conduct was being undertaken and whether an exemption certificate had been received. Equally, any official entrusted with enforcing this section would know whether an offence had been committed.
Police officers are not called upon by the section to define “health” but, in respect of the medical justification for therapeutic abortion, they must ensure that a certificate in writing has been duly issued.
So, in the circumstances of this application, and I have gone through the arguments of both counsel the best I could in the very limited time that I have had to read them, I am not satisfied that the case of Regina v. Morgentaler, supra, the Supreme Court of Canada decision really in effect overrules the test that was set out by the Ontario Court of Appeal and the test which I followed in my judgment.
So, the application for me to reverse my decision of November 24 is refused.
Pertaining to my ruling of December 22, 1987, is my interpretation of subsection 244(4) I.T.A. At that time, I considered the provisions of subsection 244(4) I.T.A. which reads:
(4) Limitation of prosecutions. An information or complaint under the provisions of the Criminal Code relating to summary convictions, in respect of an offence under this Act, may be laid or made on or before a day five years from the time when the matter of the information or complaint arose or within one year from the day on which evidence, sufficient in the opinion of the Minister to justify a prosecution for the offence, came to his knowledge, and the Minister's certificate as to the day on which such evidence came to his knowledge is conclusive evidence thereof.
I do not intend to go through my judgment and my ruling at that time. However, on December 22, I gave a 52-page judgment in which I went through all of the authorities that had been presented to me at that time and I came to the conclusion that I was bound by the decision of Pica et al. v. The Queen, [1985] 1 C.T.C. 73; 85 D.T.C. 5041 (Ont. S.C.), the judgment of Mr. Justice Montgomery.
Since that time, there has now been further developments and the decision of the Québec Court of Appeal has come down in the case of The Queen v. Les Habitations Périgord Inc. and Magella Dionne, [1988] 2 C.T.C. 64, an appeal from the judgment of the Honourable Associate Chief Justice Pierre Cote.
At the time that I heard the argument on December 22, I had before me the judgment of the Honourable Associate Chief Justice Pierre Côté and the judgment of Mr. Justice Montgomery in Regina v. Pica.
Since that time, I am informed by defence counsel, Mr. Du Pont, that the Crown obtained permission to have the Périgord decision argued for the purpose as the Crown stated of having the Court overrule its previous deicision in A.G. Canada v. Marcotte, [1975] C.A. 570.
There are three judgments and I wish to quote rather extensively from the judgments but I also bring to attention a quote from the budget papers released on February 10, 1988, where the Honourable Michael H. Wilson, Minister of Finance, tabled in the House of Commons the budget papers and on the second page under the heading of:
Limitation Period on Prosecutions
Subsection 244(4) of the Income Tax Act provides that criminal prosecution by summary conviction in respect of an offence under the Act must be initiated within five years from the time the matter giving rise to the offence occurs. This time limitation does not apply where the Minister of National Revenue has knowledge that there exists evidence, sufficient in his opinion to justify prosecution for the offence, and where prosecution is initiated within one year from the time such knowledge is acquired. The Minister's certificate as to the day on which such evidence came to his knowledge is conclusive evidence thereof. Recent court cases have indicated that the Minister must have personal knowledge of the evidence supporting the prosecution.
The subsection will be amended to clarify that, for purposes of the exception to the five-year limitation period, the Deputy Minister and certain other prescribed officials of Revenue Canada, Taxation may also formulate the opinion that evidence sufficient for prosecution exists and issue a certificate to that effect. This amendment will avoid the necessity for the Minister to review the supporting evidence for prosecution, while ensuring that any decision to prosecute after the five-year limit is taken promptly by senior officials who have personal knowledge of the evidence.
It is clear now that the Court can take into consideration the Budget papers that have been filed to show that there is certain indication on the part of the government to amend the statute which the court is considering. Of course, it has minimal weight but it is an indication as to where the government is going.
I wish to go back to the case of Regina v. Périgord and I want to quote from the decision of LeBel, J. at page 5 [of the reasons for judgment].
And, again, I reiterate that I understand from defence counsel that the case of Regina v. Pica and the decisions from Ontario and as I understand my decision was before the Québec Court of Appeal.
At page 5 :
In its grounds of appeal, the Crown first attempts to distinguish the case before us from the Marcotte case. It asserts that the certificates filed on the record were worded differently from those examined by our Court in the Marcotte case. The certificates in question here expressly refer to the opinion of the Minister. The officer is said to have acted as the Minister's “alter ego".
The Appellant raises another ground in the alternative. If the case at bar cannot be distinguished from the Marcotte case, it contends that the precedent set by it is no longer valid, as a result of the rapid evolution of the problems in delegating administrative functions over the past few years. Firstly, the provisions of section 220 of the Income Tax Act and section 900 of the Income Tax Regulations contemplate the delegation of authority to the authorized officer over both the issuance of the certificate and the declaration of knowledge. The Director of Taxation, at the Québec City District Revenue Office was delegated such authority by virtue of Rule 900. Moreover, as a result of needs which are peculiar to the Civil Service, the theory of implicit delegation is being recognized to a greater and greater extent in the case law. In this regard, our Court should be guided, in the future, by the principles set forth in R. v. Harrison, [1977] 1 S.C.R. 238. In short, either the Marcotte case is not a precedent that applies or it is no longer valid and should be cast aside because of the evolution of administrative law since 1975.
I should point out that both this Court and Mr. Justice Montgomery relied very heavily on the case of R. v. Harrison, (Supra).
He further states at page 6:
In spite of the changes brought to the legislation and the regulations and certain differences in the wording of the certificates in the two cases, the Marcotte case appears to have fully settled the question which has been presented to us. The certificate reproduced in Mr. Justice Mayrand's opinion, reads:
In accordance with subsection (4) of section 244 of the Income Tax Act, Revised Statutes of Canada 1952, chapter 248, I, the undersigned, S. E. Bernier, Assistant Deputy Minister of National Revenue for Taxation, hereby certify that on March 14, 1972, evidence sufficient, in my opinion, to justify the prosecution of Maurice R. Marcotte . . . (loc. cit. p. 15).
Mr. Justice Mayrand in that case rejected the argument that the officer was acting as the Minister's "alter ego". He also rejected the certificate itself based on the distinction between the fact and the power, knowledge being a fact and not a duty or a power that could be delegated:
Such knowledge acquired by the Minister, which starts the one year limitation period running, is a fact and not a "power" or a "duty"; therefore, the knowledge acquired by the Deputy Minister or by one of the Assistant Deputy Ministers cannot be substituted. In the words of the Superior Court judge:
It would be inconceivable that, the Assistant Deputy Minister having acquired knowledge of evidence which was, in his opinion, sufficient and not having acted upon it for more than one year, the Deputy Minister or the Minister could acquire knowledge of the same evidence, arrive at the opinion and trigger a second (or even a third) limitation period already twice (or three times) lapsed.
By stating "that on March 14, 1972, sufficient evidence, in my opinion, to justify a prosecution came to my knowledge", the Assistant Deputy Minister has not stated "that on March 14, 1972, evidence sufficient to justify the prosecution came to the knowledge of the Minister (loc. cit. p. 16).
He further quotes from the case of Medicine Hat Greenhouses Limited and Neil German v. The Queen, [1981] C.T.C. 141; 81 D.T.C. 5100, the judgment of the Alberta Court of Appeal and quotes from Mr. Justice Chouinard which I have already quoted but I will do so again.
Mr. Justice Chouinard refers to it in obiter dicta in his opinion in Fee et al. v. Bradshaw, [1982] 1 S.C.R. 609; [1982] C.T.C. 201.
With regard to the first alternative, the statement as to the day on which the evidence came to the Minister's knowledge cannot in any way be likened, in my opinion, to an administrative decision or the exercise of discretionay power. The Minister is not making a decision and he is not exercising a discretionary power. So far as he is concerned he is testifying as to a fact. He does not have to take any position favouring one course of conduct over another. He does not have to exercise any discretion in determining what evidence came to his knowledge. It is a fact. He cannot alter it to suit himself. As counsel for the Respondents observed,
(translation) "he is simply stating a fact” (loc. cit. p. 617; C.T.C. 206).
And further:
Section 244, as it now reads, permits suspension of the limitation period, provided that a certificate is issued confirming the knowledge of the Minister. The Marcotte case confirms the requirement that it attest to the knowledge of the Minister himself. That rule remains valid and is determinative of the case at bar.
Then, at page 11, he says:
... I do not deny that the jurisprudence and administrative law are becoming more and more sensitive to these aspects of the Civil Service, but I believe that the earlier decision of our Court, in the Marcotte case, poses a distinct problem and that its conclusion is binding upon us with respect to a certificate which does not conform with the text of section 244 of the Income Tax Act.
The Honourable Mr. Justice Dutil, affirmed by the Superior Court, set forth in detail his reasons for judgment. The Appellant has not succeeded in establishing that his reasons were wrong. On the contrary, I believe that his reasons are consistent with the law and therefore the appeal should be dismissed . . .
The judgment of Mr. Justice Beauregard at page 4 in his judgment, he States:
Parliament obviously wanted to relieve the Minister by delegating to the Deputy Minister the jurisdiction of his powers and duties, and the Governor in Council also wanted to relieve the Minister and the Deputy Minister by delegating to the Director, Taxation the jurisdiction for the purposes of section 244(4) of the powers and duties of both. But, in their attempts to relieve the Minister and the Deputy Minister, they in fact imposed upon the Appellant an additional burden of proof where the Appellant wishes to rely on the special one year limitation period under section 244(4). In fact, given the wording of the Act and section 900 of the Regulations, it would have been necessary in this case for the Appellant to prove that neither the Minister, nor the Deputy Minister, nor the Director, Taxation had, more than one year prior to the laying of the complaints, personal knowledge of the existence of evidence sufficient, in his opinion, to justify the prosecutions.
In the decision of Nichols, J. he states at page 3:
In order to establish this point of departure, it was therefore necessary to focus upon a certain fact. Parliament chose the day on which the Minister, as evidenced by a legally conclusive certificate, acquired the belief, to his knowledge, that the evidence is sufficient to institute prosecutions.
If the general power of delegation permitted officers of the Department to act in the place of the Minister, the point of departure from the limitation period could vary with the vagaries of the personal beliefs of all those who are authorized by the statute to act on behalf of the Minister.
Where the law expresses an exceptional power and where it involves, moreover, a limitation period, I cannot be convinced, as the Appellants contends [sic], that broad and generous rules of interpretation should be applied.
It is possible that Parliament did not intend to impose upon the Minister personally the burden of evaluating all the tax fraud files with respect to the quality of the evidence in the possession of his departmental staff, but if such was not its intention, Parliament should have expressed it clearly.
In my opinion, the text of the section does not lend itself to an interpretation other than that which has been given to it in various earlier decisions and the Appellant has not convinced me that there is any reason to reconsider the question in the light of new or different principles.
So, it is clear from the decision of the Québec Court of Appeal that they are satisfied that the knowledge required under subsection 244(4) is the knowledge of the Minister himself.
In my judgment, I took the position that the oral evidence of Mr. Kim- mons and Mr. Giles where they state that the personal knowledge as to the Minister was the knowledge of Mr. Kimmons and there is no suggestion by the Crown that the actual Minister at that time had personal knowledge.
The Crown argues that I am still bound by Pica v. Regina and the decision of Mr. Justice Montgomery because as she states that is an Ontario decision and that he being a Supreme Court judge and this Court being a court of lower jurisdiction that I am bound by that decision.
I came to that conclusion in my first judgment. But I think here that even though the judgment of the Québec Court of Appeal is a judgment from another jurisdiction, I am satisfied that it has great weight and authority when an Appeal Court has considered a judgment from an Ontario Supreme Court decision, and come to the conclusion that it did not apply, I think that I am bound, if not bound, at least I am persuaded by the Québec Court of Appeal that the section calls for the personal knowledge of the Minister.
In the Budget papers, it indicates that the government will be reviewing the matter and intends to make the sections clearer.
I am persuaded by the Québec Court of Appeal and I am prepared to reverse my ruling as of December 22, 1987, that the charges prior to 1981 are out of time.
Thus, any matters that arose prior to December 3, 1981, will be statute- barred.
So ordered.
Order accordingly.
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