Regina v. James Stewart Tyhurst, [1962] CTC 119, [1962] DTC 1042

WOO’I‘TON, J.:—This was an appeal by way of stated case. The stated case reads as follows:

“ James Stewart Tyhurst was charged that he did, on the 14th, 15th, 16th, 17th, 18th and 19th days of November, A.D. 1960, unlawfully fail to file T1 1959 Income Tax Return, after demand under Section 44(2) of the Income Tax Act contrary to Section 131(1) of the ‘Income Tax Act .

The charge was heard by me on the 19th day of April, 1961 and 7th day of June, 1961. On the former day, Mr. J. D. Beaubier appeared for the Attorney General of Canada and Mr. R. V. Anderegg for the accused. On the latter day, Mr. J. D. Beaubier again appeared for the Attorney General of Canada and Mr. C. R. J. Skatfeld appeared for the accused. I dismissed the charge for the sole reason that the Crown had not proved the receipt by the accused of a demand issued pursuant to Section 44(2) of the ‘Income Tax Act .

The accused called no evidence. The evidence called by the Crown consisted of an Affidavit of an officer of The Department of National Revenue, which I found complied with Section 136(5) and (6) of the ‘Income Tax Act and from which I accordingly found:

1. That a registered letter from the Minister of National Revenue was mailed on October 11th, 1960, to James Stewart Tyhurst that he file by November 11th, 1960, a form T1 for the taxation year 1959.

2. That James Stewart Tyhurst did not on the 14th, 15th,

16th, 17th, 18th or 19th days of November, 1960, file a form T1 for the taxation year 1959.

No further evidence was adduced by the Crown and I held:

(a) That the James Stewart Tyhurst referred to in the Crown Affidavit evidence as having been sent a letter of demand was the accused, because counsel appeared for him in answer to a summons.

(b) That no evidence was required to be adduced by the Crown that the James Stewart Tyhurst referred to in the Crown’s Affidavit evidence as having been sent a letter of demand, is the same person as the accused named in the summons.

(ce) That by reason of my finding (a) and (b) and by reason of Section 136 of the ‘Income Tax Act’, a prima facie case was established of the demand and that it was sent to the accused.

(d) That there was no presumption raised by Section 136 of the ‘Income Tax Act’ that the demand was received by the accused, and for this reason, I dismissed the charge.

On the 14th day of June, Mr. J. D. Beaubier, as agent for the Attorney General of Canada, applied to me to state a case for the consideration of the Supreme Court of British Columbia.

The question upon which the opinion of this Honourable Court is requested is whether I was correct in holding that the Crown must prove that the accused received the demand sent by registered mail in accordance with the provisions of the Section 44(2) of the ‘Income Tax Act’ before the accused may be convicted of the above charge.

Dated at Vancouver, British Columbia, this 18th day of July, 1961.

‘Gordon W. Scott’

DEPUTY Police MAGISTRATE for the City of Vancouver”

Mr. Skatfeld for the respondent took preliminary objections as to the procedure by the appellant and claimed that I had no jurisdiction to hear this appeal because certain formalities required to be completed were not so complied with and the principal objections were:

1. That there was no proof that the application for the stated case was made within the time required by Section 734 of the Criminal Code.

2. That there was no proper proof of service of the stated case and notice of appeal.

Mr. Skatfeld cited the following case: Regina v. Moroz, 83 C.C.C. 239, and other cases.

I have carefully considered these preliminary objections and have also had reference to the cases on the subject of procedure cited in Crankshaw, 7th Edition, at page 1267, and Snow, 6th Edition, at page 749.

I have concluded that if there were fatal irregularities then such irregularities are not apparent upon the face of the proceedings nor are irregularities to be found in the documents on file. As to the service of the writ and the notice of appeal, I have read the affidavit of Hilton Francis Bacon, Constable of the Royal Canadian Mounted Police and although this affidavit of service is somewhat informal in its appearance and its context, it conveys sufficient information in proof of service to require a conflicting affidavit to be filed if the service is to be challenged. The appellant has offered no material in proof of irregularities and I therefore find that the preliminary objections fail.

This brings me to the merits of the stated case. The relative section involved here is subsection (5) of Section 136 of the Income Tax Act which reads as follows :

“Proof of Service by Mail

136. (5) Where, by this Act or a regulation, provision is made for sending by mail a request for information, notice or demand, an affidavit of an officer of the Department of National Revenue sworn before a commissioner or other person authorized to take affidavits setting out that he has charge of the appropriate records, that he has knowledge of the facts in the particular case, that such a request, notice or demand was sent by registered letter on a named day to the person to whom it was addressed (indicating such address) and that he identifies as exhibits attached to the affidavit the post office certificate of registration of the letter or a true copy of the relevant portion thereof and a true copy of the request, notice or demand, shall be received as prima facie evidence of the sending and of the request, notice or demand.”

Mr. Skatfeld argued on behalf of the appellant that if the subsection is to have the force suggested for it by the Crown the following words should be added thereto, namely, ‘‘and the receipt of the request, notice or demand by the accused’’ or some words to like effect. And of course these additional words are not there.

In my opinion, however, such words are unnecessary if the comprehensive meaning is given to the following words ‘‘and of the request, notice or demand” that includes the meaning of the effect and fact of receipt by the individual to whom such request, notice or demand was addressed. If such comprehensive meaning is not given then the said words ‘‘and of the request, notice or demand” in the context of the subsection appear to have no meaning or purpose whatever.

Reference to recognized dictionaries indicates quite clearly that in the comprehensive interpretation of the words ‘‘request’’, 44 notice” and ‘‘demand”, there is a meaning which includes the fact of the receipt by the individual addressed of the request, notice or demand. Particularly on this subject of the interpretation I refer to the Oxford University Dictionary 1955 at page 477 when dealing with the word 44 demand” we have the following among other interpretations: ‘‘the action or fact of demanding in legal form’’. The extent of this meaning here is made more conclusive by the marginal note of the subsection, viz., ‘‘ Proof of Service by Mail’’.

I accordingly answer the question raised by the learned Magis trate in the negative and remit the case to him for his disposal thereof.

Appeal allowed.