Barnett,
Prov
J:—Donald
Brecknock
is
charged
with
failing
to
file
his
1974
income
tax
return
following
a
demand
made
December
23,
1975
pursuant
to
subsection
150(2)
of
the
Income
Tax
Act.
When
the
matter
came
on
for
trial
on
April
23,
1976,
the
Crown
did
not
call
any
viva
voce
evidence.
Instead,
as
is
usual
in
these
matters,
the
Crown
sought
to
prove
its
case
by
affidavit
evidence
relying
upon
subsections
244(5)
and
(7)
of
the
Act.
The
affidavit
of
Ms
M
Selvage
was
filed
as
Exhibit
1.
She
swears
that
she
is
an
officer
of
the
Department
of
National
Revenue,
Taxation,
and
in
charge
of
certain
records
in
the
Department’s
Vancouver
office.
After
referring
to
the
demand
in
question
(which
was
admittedly
made
and
received
by
Mr
Brecknock),
Ms
Selvage
swears:
4.
That
after
careful
examination
and
search
of
the
appropriate
records
mentioned
in
paragraph
1
above,
I
have
been
unable
to
find
in
this
particular
case
that
the
said
return
or
information
by
statement
or
answer
required
and
demanded
has
been
made
and
filed
or
provided,
up
to
and
including
the
26th
day
of
February,
1976
by
the
said
Donald
Brecknock.
After
this
affidavit
was
submitted
in
evidence,
defence
counsel,
Mr
Messner,
applied
for
an
order
requiring
that
Ms
Selvage
attend
in
Court
to
be
cross-examined
upon
her
affidavit.
Following
argument
upon
that
application,
I
ruled
on
April
28,
1976
that
although
there
is
no
specific
provision
for
the
making
of
such
an
order
to
be
found
in
the
Income
Tax
Act,
such
an
order
could
be
made
in
a
proper
case,
and
that
this
was
a
proper
case.
Ms
Selvage
attended
in
Court
on
June
8,
1976.
When
she
was
asked
to
describe
how
she
had
examined
and
searched
the
appropriate
records,
she
answered
that
she
had
not
done
this
work
herself
at
all.
It
had
been
done
by
members
of
her
staff,
and
they
had
reported
upon
the
matter
to
her.
That
is
apparently
the
invariable
procedure
in
these
cases.
I
do
not
suggest
that
Ms
Selvage
consciously
made
a
false
affidavit.
But
the
fact
remains
that
the
material
portion
of
her
affidavit
is
false.
She
swears
she
did
something
which,
in
fact,
she
did
not
do.
The
only
evidence
she
can
give
upon
the
matter
is,
in
truth,
hearsay.
Subsection
244(7)
of
the
Income
Tax
Act
authorizes
the
reception
of
affidavit
evidence
in
these
cases.
It
does
not
authorize
the
deponent
of
such
an
affidavit
to
swear
to
matters
which
are
not
within
his
or
her
personal
knowledge.
But
that,
in
fact,
is
what
Ms
Selvage
did
here,
although
the
form
concealed
the
fact.
it
is
inexcusable
that
the
persons
swearing
such
affidavits
are
apparently
not
adequately
instructed
concerning
the
solemn
nature
of
an
affidavit.
I
have
commented
upon
this
subject
previously.
See
Regina
v
Worrell;
Regina
v
Chilcotin
Taxi
Ltd,
[1975]
WWD
93.
The
charge
against
Mr
Brecknock
is
dismissed.
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