Moir, J (concurred in by Sinclair and Clement, JJ):
1 On November 20, 1973 Robert J Jacobs, an employee of the Department of National Revenue, Taxation, swore two informations, one against German and the other against Medicine Hat Greenhouses Limited (the Company) and German jointly. The information against the respondent German contained six separate counts which read as follows:
1. between the 31st day of December, A.D. 1964 and the 13th day of March, A.D. 1970, did wilfully evade payment of taxes imposed by the Income Tax Act, RSC 1952, Chapter 148, with respect to income received by him in the amount of $40,860.90 and did thereby commit an offence contrary to Section 239(1)(d) of the Income Tax Act.
2. on or about the 6th day of April, A.D. 1966 made a false or deceptive statement in a return of income for the taxation year, 1965, filed by him as required by the provisions of the Income Tax Act RSC 1952, Chapter 148, by stating that his net income for the said year was $28,167.85, which said statement is false by reason of his failure to include income of $3,765.26 for the said taxation year, and did thereby commit an offence contrary to Section 239(1)(a) of the Income Tax Act.
3. on or about the 15th day of March, A.D. 1967 made a false or deceptive statement in a return of income for the taxation year 1966 filed by him as required by the provisions of the Income Tax Act, RSC 1952, Chapter 148, by stating that his net income for the said year was $33,536.36, which said statement is false by reason of his failure to include income of $5,876.50 for the said taxation year, and did thereby commit an offence contrary to Section 239(1)(a) of the Income Tax Act.
4. on or about the 18th day of March, A.D. 1968 made a false or deceptive statement in a return of income for the taxation year 1967 filed by him as required by the provisions of the Income Tax Act, RSC 1952, Chapter 148, by stating that his net income for the said year was $37,531.62, which said statement is false by reason of his failure to include income of $4,910.17 for the said taxation year, and did thereby commit an offence contrary to Section 239(1)(a) of the Income Tax Act.
5. on or about the 28th day of March, A.D. 1969 made a false or deceptive statement in a return of income for the taxation year 1968 filed by him as required by the provisions of the Income Tax Act, RSC 1952, Chapter 148, by stating that his net income for the said year was $33,663.81, which said statement is false by reason of his failure to include income of $14,513.43 for the said taxation year and did thereby commit an offence contrary to Section 239(1)(a) of the Income Tax Act.
6. on or about the 13th day of March, A.D. 1970 made a false or deceptive statement in a return of income for the taxation year 1969 filed by him as required by the provisions of the Income Tax Act, RSC 1952, Chapter 148, by stating that his net income for the said year was $34,501.77, which said statement is false by reason of his failure to include income of $11,795.54 for the said taxation year and did thereby commit an offence contrary to Section 239(1)(a) of the Income Tax Act.
2 The joint information contained only one count as follows:
he has reasonable and probable grounds to believe and does believe that Medicine Hat Greenhouses Limited, and Neil V. German, an officer of Medicine Hat Greenhouses Limited, both of Calgary, in the Province of Alberta, between the 31st day of December, A.D. 1964 and the 2nd day of March, A.D. 1970, did wilfully evade payment of taxes imposed by the Income Tax Act, RSC 1952, Chapter 148, with respect to income received by Medicine Hat Greenhouses Limited during its 1965, 1966, 1967, 1968 and 1969 taxation years in the amount of $42,419.08 and did thereby commit an offence contrary to Section 239(1)(d) of the Income Tax Act.
3 Summonses were apparently issued and the matter came on before Provincial Judge F A Thurgood on December 11, 1973. At that time W J Major, Esq, QC, appearing for the Attorney General of Canada, indicated that the Crown elected to proceed by way of summary conviction. No plea was taken. The charges were not read but were adjourned until January 8, 1974. On that date the matters were further adjourned to February 19, 1974.
4 In the interval both German and the Company applied to the Supreme Court for an order quashing the informations and prohibiting all proceedings in respect thereto. The applications were heard on February 12, 1974. On February 25, 1974 the learned Chamber Judge granted an order quashing the joint information against German and the Company and counts 1, 2, 3, and 4 of the individual information against German. The Crown appealed from the order quashing the joint information and counts 1, 2, 3, and 4. German cross- appealed in respect of the failure of the learned Chamber Judge to quash counts 5 and 6.
5 The learned Chamber Judge, in his written reasons, stated:
The basic attack on the informations was launched on four grounds:(1) the Provincial Judge lacked jurisdiction because the offences alleged were statute barred by limitations.
(2) the informations were bad for lack of particularity.
(3) the informations were bad for multiplicity and duplicity.
(4) the informations charged offences, the existence of which are unknown to existing law.
6 Point 4 was not argued by the respondent either before the Chief Justice or this Division. I will express no opinion on it.
7 The learned Chamber Judge gave effect to arguments 1 and 2; the limitation argument and the alleged lack of particularity. I will deal with these arguments in reverse order.
8 In June of 1974 this Division dealt with the appeal in Her Majesty the Queen v. Keith N Mah (not yet reported). Charges identical to those faced by German (except in one particular) were held to be proper and not to be bad for lack of particularity. It follows that these charges against German are not bad for lack of particularity. This disposes of all of the objections on this ground.
9 The third objection is that the informations were bad for multiplicity and duplicity. The charges facing German differ from the informations in the Mah case. In the Mah case the accused information stated:
on or about the 30th day of April, A.D. 1968 did unlawfully make, participate in, assent to or acquiesce in making of a false statement in his return of income ...
Each of the charges facing German state:on or about the 6th day of April, A.D. 1966 made a false or deceptive statement in a return of income ...
The respondent's position is that the information alleges two separate offences, one of making a false statement and the other of making a deceptive statement. If this is true, of course, the information would be bad for duplicity.10 In my opinion this argument is invalid. The offence is set out in paragraph 239(1)(a) of the Income Tax Act, RSC 1952, c 148 (amended by 1970–71–72, c 63):
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 under this Act or a regulation
11 It is argued that paragraph 239(1)(a) creates two offences where the section uses the words “false or deceptive”. If these words create two offences then German is charged with both of them. In advancing this argument German's counsel relies upon the dictionary meaning of the words “false” and “deceptive”. In addition, they point to the fact that in Mah and in The Queen v Chalmers and Jensen, 67 D.T.C. 5135, the charges used only the words “false statement”.
12 On the other hand the Crown argues that the words “false or deceptive” do not create two offences but merely deal with the mode of committing the offence. In this respect the Crown further relies on the fact that the exact words of the section are used and upon section 510 of the Criminal Code dealing with indictments.
13 In my opinion the law is correctly set forth by the Saskatchewan Court of Appeal in R v Hawryluk, [1967] 3 C.C.C. 356 at 359:
In the instant case, the information follows the wording of the statute. Under these circumstances, where the information alleges more than one act either conjunctively or disjunctively, the question for determination is whether the enactment itself creates more than one offence or a single offence that may be committed in different ways. The difficulty lies not in the statement of this principle, but in its application. Vide: Gatto and Tonellatto v The King, 70 C.C.C. 249, [1938] 3 D.L.R. 676, [1938] S.C.R. 423, and Archer v The Queen, 110 C.C.C. 321, 20 C.R. 181;(1951), 2 D.L.R. 621, [1955] S.C.R. 33. If the enactment creates two offences then an information in the wording of the enactment would be void for duplicity. On the other hand, if the enactment creates only a single offence that may be committed in a number of ways, in information in the words of the statute is not void for duplicity. Section 703 of the Code specifically provides that no information shall be deemed to charge two offences or to be uncertain by reason only that it states that the alleged offence was committed in different modes. This section, while validating an information so drawn, does not deprive the accused of his right to particulars if requested and, if necessary, to a fair trial.
14 It is therefore the application of the principle to the section that creates the problem. Applying the principle, I am of the opinion that there is only one offence charged in these charges. The words “false or deceptive” set out the mode or method of committing the offence of making the prohibited statement. It will, of course, be clear that I am not dealing with the question of whether or not the later words “statement or answer” create two offences.
15 I turn now to ground (1). The main thrust of the respondent's case is that proceedings against him were barred by the provisions of the limitation section of the Income Tax Act. The Act provides as follows:
244. (4) 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 5 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.
It is to be noted that the limitation applies only to proceedings by way of summary conviction. If the Crown had elected to proceed by way of indictment this section would have no application. Simply by looking at the information one cannot tell how the agent of the Attorney General of Canada intends to proceed. In this case the learned Provincial Court judge, when the matter first came before him on December 11, inquired, “Are these all summary conviction matters?” to which counsel for the Crown replied, “Yes, sir”. It is conceded that from that moment forward subsection (4) of section 244 of the Income Tax Act applied.16 It is urged that the joint count and counts 2, 3, and 4 against the respondent German cannot be proceeded with because the Court has no jurisdiction to hear the counts. Keddy v The Queen (1961), 130 C.C.C. 226, is relied upon. In that case an information was sworn more than six months after the facts complained about in the information arose. Section 10 of the Summary Convictions Act of Nova Scotia provided that unless the statute or law relating to a particular case otherwise provided, the information or complaint had to be made within six months of when the offence or act was committed, or the matter of the complaint arose.
17 In allowing an appeal by way of stated case, Patterson, J said that once the time had passed “the court has no jurisdiction to entertain the information or complaint”. Two of the other judges also used the words “no jurisdiction” so that a majority of the court uses that language. It is on this language that the respondents rely.
18 In my opinion the factual situation in our case is much different. The information sworn does not reveal whether the Crown intends to proceed by indictment or by way of summary conviction. As there is no limitation period for proceedings by indictment, the learned Provincial Court judge had no alternative but to accept the information and to swear it.
19 It was not until December 11, 1973 that the Crown made its election to proceed by way of summary conviction. At that moment the possibility of a defence under section 244 arose.
20 It is obvious that counts 2, 3, and 4 and part of count 1 are beyond the five-year period set by the statute. However, this is not an end to the matter. A longer period is provided by the concluding words of the section:
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.[FN1: <p>Italics added.</p>]
21 Subsection 244(4) gives the Crown the right to call evidence or to put in a certificate. This must, under our system of justice, be done in the presence of the accused and his counsel. Accordingly, it must be done at the trial in open court. It must not be done, as the respondents argue, before the summons is issued and in the absence of the accused. The section uses the word “evidence” and, in my opinion, the word “evidence” there means proof given in court, and only in court.
22 In reaching the conclusion the application cannot be sustained on the grounds of expiration of the five-year limitation I have cited no authority. In my opinion none is needed because the use of prerogative writs to deprive the Crown of its right to call evidence is clearly wrong. The cases relied upon by the respondent all deal with prosecutions which are permitted only by leave of some Minister of the Crown and therefore, in my opinion, have no application here.
23 In any event, I am of the opinion that the Court ought not to grant certiorari with prohibition in aid in cases such as these. Certiorari is a discretionary remedy and in my opinion an order in the nature of certiorari ought not to be granted where the Court clearly has jurisdiction and has made no order beyond its jurisdiction nor without evidence.
24 Any objection by a defendant person should be taken by motion to quash. This is provided for in subsection 732(1) of the Criminal Code:
732. (1) An objection to an information for a defect apparent on its face shall be taken by motion to quash the information before the defendant has pleaded, and thereafter only by leave of the summary conviction court before which the trial takes place.
25 If this procedure is followed, the Crown may elect to apply to amend the charge as provided in subsection (3) of section 732:
732. (3) A summary conviction court may, at any stage of the trial, amend the information as may be necessary if it appears
26 In my opinion the Criminal Code sets out a procedure for the orderly and fair trial of defendant persons. The whole purpose and scheme of the Criminal Code is to facilitate trials, to avoid delays, to do away with technical objections and, at the same time, to ensure, so far as is procedurally possible, that every accused person gets a fair trial. Of course, an accused person must be given an opportunity to make his full answer and defence. If the provisions of the Criminal Code and, in particular, section 732 were followed, this will occur. There will be no unnecessary delay and the Crown will have the right, if it sees fit, to apply for an amendment to the information. In the end the result should be fair to all.
27 In this case resort is made to the prerogative writs. Far from expediting the matter, it causes delay and needless expense. No question of jurisdiction or bias is involved. The limitation question is, as earlier found to be, one of evidence. The question of duplicity—if I am wrong and the counts are duplicitous—can be dealt with by motion to quash. Accordingly—without deciding whether certiorari will lie in these circumstances, I am of the opinion that in the interests of justice, certiorari, being a discretionary remedy (The King v. Stafford Justices, [1940] 2 K.B. 32; Re Whitelaw and Board of Police Commissioners (1973), 35 D.L.R. (3d) 466), ought not to be granted in this case. The procedure that is provided in the Criminal Code was, in my opinion, the one followed by the accused in Regina v Pharmo Products Ltd (No 1) (1974), 17 C.C.C. 329.
28 In the result I would allow the appeal of the Crown and set aside the writ of prohibition with certiorari in aid and send the matter back to the Provincial Court to be dealt with on the merits. The cross-appeal of the respondent is dismissed.
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