Lazier,
JCC
(orally):—This
is
in
the
matter
of
Her
Majesty
the
Queen
v
Arthur
D
Lyall.
This
matter
came
on
for
trial
on
November
15,
when
the
evidence
was
heard
and
arguments
with
respect
to
the
matter,
and
judgment
was
reserved
until
today.
This
was
a
trial
de
novo
and
the
accused
had
been
charged
with
two
counts
of
unlawfully
failing
to
file
income
tax
returns
pursuant
to
subsection
150(2)
of
the
Income
Tax
Act,
contrary
to
subsection
238(1)
of
the
said
Act.
The
first
count
relates
to
the
date
of
March
31,
1976
and
the
second
count
relates
to
April
1,
1976.
The
charges
were
dismissed
by
Donald
Patterson,
Esq,
Justice
of
the
Peace,
on
September
17,
1976
and
as
a
result,
the
Crown
has
brought
this
appeal
before
me.
An
affidavit
of
an
officer
of
the
Department
of
National
Revenue
has
been
filed;
both
parties
to
the
appeal
agree
that
this
affidavit
complies
with
subsection
244(5)
of
the
Income
Tax
Act
and
no
return
has
been
filed
pursuant
to
subsection
244(7).
The
evidence
reveals
that
no
return
has
been
filed
by
the
taxpayer,
pursuant
to
the
demand,
a
copy
of
which
is
attached
to
the
said
affidavit.
The
sole
defence
is
that
subsection
26(3)
of
the
Canada
Evidence
Act
should
apply,
and
if
that
is
the
case,
section
28
of
that
Act
also
would
apply,
requiring
reasonable
notice
of
the
intention
to
use
such
affidavit
and
the
exhibits
attached
thereto
to
be
given
to
the
accused.
It
is
conceded
that
no
such
notice
of
such
intention
was
given
to
the
taxpayer.
I
have
been
referred
to
a
decision
of
the
New
Brunswick
Court
of
Appeal,
namely,
Pierce
v
Steen,
[1976]
CTC
321,
76
DTC
6143,
which
was
heard
February
27,
1976.
That
case
is
identical
with
the
situation
before
me,
except
that
notice
was
given
and
it
was
conceded
in
that
case
that
such
notice
was
insufficient
in
view
of
the
provisions
of
section
28
of
the
Canada
Evidence
Act,
if
it
were
to
apply.
That
Court
held
that
section
28
of
the
Canada
Evidence
Act
had
no
application
to
the
mode
of
proof
authorized
under
subsection
244(5)
of
the
Income
Tax
Act.
I
would
further
add
that
section
36
of
the
Canada
Evidence
Act
reads
as
follows:
This
Part
shall
be
deemed
to
be
in
addition
to
and
not
in
derogation
of
any
powers
of
proving
documents
given
by
any
existing
Act,
or
existing
at
law.
“This
Part’’
referred
to
in
that
section
refers
to
Part
I
of
the
Canada
Evidence
Act
which
includes
sections
26
and
28,
to
which
I
have
already
referred.
It
is
clear
from
section
36
that
sections
26
and
28
are
in
addition
to
and
not
in
derogation
of
the
powers
of
proving
documents
set
forth
in
section
244
of
the
Income
Tax
Act.
To
my
mind,
that
means
that
the
provisions
of
subsection
244(5),
which
are
consistent
with
subsection
26(3),
which
are
consistent
with
that
section
practically
word
for
word,
prevail
and
section
28
is
not
to
be
employed
to
derogate
from
the
powers
of
proving
documents,
as
set
forth
in
subsection
244(5)
of
the
Income
Tax
Act.
I
think
it
is
significant,
there
is
a
statement—it’s
true
it
is
in
a
civil
action,
but
in
reference
to
the
case
of
Smith
v
Hydro-Electric
Power
Commission
of
Ontario
(1976),
11
OR
(2d)
645,
which
is
a
decision
of
Mr
Justice
Osler,
involving
a
conflict,
a
possible
conflict
between
The
Public
Authorities
Protection
Act,
and
The
Power
Commission
Act,
he
ruled
that
the
provisions
of
The
Power
Commission
Act
were
those
he
should
deal
with
and
he
makes
a
statement
on
page
648
which
I
think
covers
the
principle
and
could
be
applied
to
this
case,
and
I
quote:
Both
on
the
principle
that
a
special
Act
governs
in
case
of
a
conflict
between
its
provisions
and
those
of
a
general
Act
and
on
the
principle
that
to
mention
one
matter
is
to
exclude
others,
I
find
that
The
Public
Authorities
Protection
Act
has
no
application
to
the
Power
Commission.
Now,
that
reasoning,
I
think,
applies
here
and
provisions
of
the
special
Act
in
question,
the
Income
Tax
Act,
apply
over
and
above,
in
this
case,
the
provisions
of
the
Canada
Evidence
Act.
Accordingly,
the
appeal
is
allowed.
There
will
be
a
conviction
on
each
count,
as
it
was
conceded
by
both
counsel
that
the
evidence
herein
would
apply
to
each
count,
and
accordingly,
I
apply
the
evidence
to
each
count.
A
fine
of
$25
on
each
count.
How
long
does
the
accused
require
to
pay
this?
Mr
Murray:
The
accused
couldn’t
be
here,
Your
Honour,
and
he
asked
me
if
two
weeks
would
be
allowed?
His
Honour:
Mr
Pepe,
that
should
be
reasonable?
Mr
Pepe:
Yes,
Your
Honour.
His
Honour:
That’s
effective
December
10,
1976.
Accordingly,
I
have
endorsed
the
Notice
of
Appeal
“for
oral
reasons,
appeal
allowed,
accused
convicted
on
both
counts.
A
fine
of
$25
on
each
count
or
ten
days
in
default
of
payment
concurrent,
effective
tenth
of
December,
1976.”
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