Rex v. Neff, Snell and Neff., [1947] CTC 163

I. F. Fitch:—In view of the importance of this matter, and my own suggestion that the party dissatisfied with my decision on this application might properly consider taking appropriate proceedings to prohibit me acting upon this decision when trial begins at a later date, I consider it right to indicate my reasons.

Counsel for the accused have made application, strenuously opposed by counsel for the Crown, for the hearing of these charges in camera. They all relate to offences under sec. 80 of the Income War Tax Act, and in substance are the making of false statements in returns under that Act and destruction of records.

The foundation of the application is see. 81 of the Act, as follows :

Secrecy.

"" (1) No person employed in the service of His Majesty shall communicate or allow to be communicated to any person not legally entitled thereto, any information obtained under the provisions of this Act, or allow any such person to inspect or have access to any written statement furnished under the provisions of this Act.’’

Penalty.

“(2) Any person violating any of the provisions of this section shall be liable on summary conviction to a penalty not exceeding two hundred dollars.’’

Counsel for the Crown states that in making a case for the prosecution, he will call as witnesses "‘persons employed in the service of His Majesty’’, and he will tender "‘written statements furnished under the provisions of this Act”..

Counsel for the accused, in a very able argument, puts a strong ease for a closed court substantially as follows:

(a) One object of this statutory secrecy is to prevent persons from obtaining information of the business of their competitors and that information of great value, substantially is in the same category as in trade secret trials where secrecy is of the essence of the cause ([1913] A.C., p. 482).

(b) By this section of the Act, Parliament has invited the public to deal with the Department of Income Tax on a. confidential basis, and the confidence of the public in the honour of the Department should not be destroyed by the simple act of swearing out informations and opposing this application.

(c) The term "‘persons not legally entitled thereto’’ is not defined in the Act, but it is common ground that as a Magistrate, I am a pérson legally entitled to the information and statements produced in evidence, but if this trial is not held in camera, the indirect, indeed the direct result, so far as these accused are concerned, will be to destroy the statutory secrecy given under sec. 81.

(d) These accused are at this stage presumed to be innocent of any offience, and if found innocent and indeed, if found guilty, will have suffered an injustice which cannot be undone.

(e) A trail in camera will avoid these results.

High authority is cited for the proposition that every Court has inherent jurisdiction to hold proceedings in camera, if the Court, in the exercise of its discretion, considers the exclusion of the public to be necessary for the administration of justice.

Ogle v. Brandling, 39 E.R. 557;

The King v. Governor of Lewis Prison [1917] 2 K.B. 254:

Millar v. Thompson, 31 Ch. D. 55 ;

Scott v. Scott [1913] A.C. 417.

In my opinion, however, the general principle laid down ir those cases does not apply, because this prosecution is brought by way of summary conviction and Part XV of the Criminal Code establishes a procedure of its own.

See. 714 is as follows:

"The room or place in which the justice sits to hear and try any complaint or information shall be deemed an open and public court, to which the publie generally may have access so far as the same can conveniently contain them.”

Mr. German contends that Mr. Riley’s argument based on sec. 714 is sufficiently answered by mere reference to sec. 645(3), but in my opinion that i is not enough.

Sec. 645(1) enumerates by section numbers certain offences which may be tried in camera and 645(2) provides for closed trials in the interests of public morals. Neither subsection applies to this case.

Sec. 645(3) is as follows:

"Nothing in this section shall be construed by implication or otherwise as limiting any power heretofore possessed at Common law by the presiding judge or other presiding officer of any court of excluding the general public from the courtroom in any case when such judge or officer deems such exclusion necessary or expedient.”

I have not examined the numerous sections contemplated by 645(1) and 645(2) to ascertain whether any of them are summary conviction matters, but assuming that 645(3) found in Part XII applies to sec. 714 found in Part XV, the limitations of 645(3) must be considered.

It is quite possible that the ‘ejusdem generis’’ rule should be applied to the words "‘necessary or expedient’’ and limit their application to offences at common law of the same type as those listed in sees. 645(1) and 645(2), which are in the field of physical relations and public morals.

That appears to be the view expressed in the editorial note appended to sec. 645 in the fourth edition of Tremeear at page 816 and in an article on this subject found in 16 D.L.R. at page 769. Assuming, however, that the rule does not apply there are limitations within the subsection.

To exereise the power of exclusion on the grounds of necessity or expediency, there must first be shown power at common law to exclude, and the whole weight of common law is against excluding the public from presence in a Court of law. The power to exclude from a preliminary inquiry rests on sec. 679 of the Code, and is rarely exercised.

The sole remaining argument that could be advanced for exclusion is that sec, 81 of the Income War Tax Act is directly in conflict with long established law, and should be reconciled by granting this application.

In my opinion, however, sec. 81 was intended, in the enforcement of the Income War Tax Act, to apply only to the administrative and not to the judicial field of law. The distinction between these two fields is in some aspects secrecy or publicity. In the administrative field the administrators, unless bound by Statute as under this Act, usually exercise their discretion without intereference from the Courts, unless in a given case the Court holds that the administrators have not exercised their discretion on judicial principles.

It is true, as Mr. German contends, that the administrators of the Income War Tax Act can, by simply laying a charge, destroy the secrecy imposed by see. 81, but if Parliament had intended by see. 81 to alter the historic position of the Courts providing, with but few exceptions for public hearings, the Parliament would have said that it applied to all Courts as well as to De- partmental administration of the Income War Tax Act and not by sec. 68 limiting the provision for closed courts to appeals in the Exchequer Court.

The historic position taken by the Courts in this important matter of public hearings had been often repeated, but the justification for public trials and the practical difficulties of accomplishing the result of complete secrecy, have not been more concisely expressed than in the words of Lord Atkinson in Scott v. Scott [1913] A.C. p. 643, and are worth repeating.

‘In public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect.

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"If perpetual silence were enjoined upon every one touching what takes place at a hearing in camera, the conduct and action of the judge at the trial, his rulings, directions, or decisions on questions of law or fact, could never be reviewed in a Court of Appeal at the instance of a party aggrieved, un- less indeed upon the terms that that party should consent to become a criminal and render himself liable to be fined and imprisoned for criminal contempt of Court, a serious invasion of the rights of the subject.’’

The latest judgment of direct assistance on this application is found in Re Legal Professions Act [1945] 3 W.W.R. 37. Chief Justice Farris of British Columbia says as follows:

"While the rights of the public and even the Court itself must be protected through publicity, yet there are occasions in which the public is not particularly concerned and there is the right of individuals to be protected from the glare of the light of publicity.

“There are three well-recognized exceptions to the holding of hearings in public in addition to the statutory exceptions.

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‘‘In addition to the statutory and the three definite exceptions above referred to, there are other instances, possibly difficult of determination, based on general principles where the public may be excluded. I emphasize the word ‘principles’ because the exclusion of the public must be upon principle and not expediency. ’ ’

Charges of destroying records and making false entries in order to evade payment of income tax, whereby all others paying into the total fund collected by the Dominion Government through income tax, are defrauded, would, using the language of the learned Chief Justice, appear not to be “occasions in which the public is not particularly concerned’’. The evidence conceded available to me as a Magistrate is in my opinion available to this Court in which I am the presiding Magistrate.

The application for a closed court is made by the accused. If some person accused of a crime requested the converse, desiring to prove his innocence in a Court where all his friends could listen, and the officials of the Department invoked sec. 81 to deny him the right of trial in open court and were upheld in that position, the result might be a denial of the justice which all British Courts are maintained to preserve.

Without attempting to hold that no charges laid under this Act, even including sec. 80, could constitute ‘‘other instances’’, the facts and arguments so far advanced in this hearing are not such as in my opinion justify any departure from the general rule of publicity, and the application for a trial in camera is dismissed.

Application dismissed.