Maritime Construction Limited and Raymond P. Slattery v. Her Majesty the Queen, [1989] 1 CTC 306

McLellan, J.: —In these six proceedings Maritime Construction Ltd. and Raymond P. Slattery each appeal three separate convictions against each of them for failing to file income tax returns of Maritime Construction Ltd. following demands to do so. The convictions were made by a judge of the Provincial Court in Saint John on July 14, 1988.

The main issues are whether certain certified copies of documents were legally admissible in evidence and whether a person making an affidavit used in the prosecutions should have been subject to cross-examination.

An essential element of the Crown's case on each charge against Maritime Construction Ltd. was to prove incorporation. An essential element of the Crown's case on each charge against Raymond P. Slattery was to prove that he was an officer of Maritime Construction Ltd. Proof of those facts was offered in the form of certified copies of a certificate of incorporation and annual returns filed with the provincial government.

Such certified copies are ordinarily receivable in evidence in accordance with sections 24 and 28 of the Canada Evidence Act. Section 28 provides as follows:

28. (1) No copy of any book or other document shall be received in evidence, under the authority of section 23, 24, 25, 26 or 27, upon any trial, unless the party intending to produce the same has before the trial given to the party against whom it is intended to be produced reasonable notice of such intention.

(2) The reasonableness of the notice shall be determined by the court, judge or other person presiding, but the notice shall not in any case be less than seven days.

Notice of intention to produce the certified copies was not given before the trial. Accordingly counsel for the Crown could not tender them in accordance with sections 24 and 28 of the Canada Evidence Act in the usual way. Instead he offered the certified copies under the authority of section 37 of that Act which is as follows:

37. In all proceedings over which the Parliament of Canada has legislative authority, the laws of evidence in force in the province in which such proceedings are taken, including the laws of the proof of service of any warrant, summons, subpoena or other document, subject to this and other Acts of the Parliament of Canada, apply to such proceedings.

By section 36 of the New Brunswick Evidence Act copies of certain documents that have been "certified . . . to have been carefully compared with such original and to be a true copy" are admissible in evidence without the notice required by section 28 of the Canada Evidence Act.

The copies tendered in these proceedings have not been certified as having been "carefully compared" as required by section 36 of the New Brunswick Evidence Act. Accordingly they are not admissible under that section. R. v. Boudreau (1987), 81 N.B.R. (2d) 148 (N.B.C.A.).

The Crown also relies on the Business Corporations Act, particularly on subsections 180(2) and 181(2). Those subsections provide that a certified copy of corporate documents "when introduced as evidence in any . . . proceeding . . . is . . . proof of the facts so certified”.

The appellants would prefer that the words "when introduced as evidence" be understood as referring to that point in time at which the copy is taken, received or admitted as evidence. The Crown would prefer that the words "when introduced as evidence” be understood as referring to that point in time at which the copy is presented, tendered or offered as an exhibit.

In my view the word “introduced” in this context means "presented, tendered or offered”. The certified copies having been so introduced, the trial judge was in the absence of evidence to the contrary under a duty to accept them as proof under the Business Corporations Act subsections 180(2) and 181(2). As such proof the copies were correctly taken, received or admitted as evidence and marked as exhibits.

Counsel for the appellant also argues that the trial judge erred in not allowing cross-examination of Patricia O'Driscoll on her affidavit in two of the cases. Her affidavits were in the wording authorized by subsection 244(7) of the Income Tax Act. She deposed that she had been unable to find the requested income tax returns on file.

Such affidavits in the prescribed wording are clearly admissible as prima facie evidence of their contents. However the Income Tax Act does not purport to abolish the right of an adverse party to request that the affiant be cross-examined on the affidavit.

To the contrary the Canada Evidence Act section 37 preserves that right by providing that "the laws of evidence in force in the province in which such proceedings are taken . . . apply to such proceedings”. Under the Rules of Court of New Brunswick rule 55.02(1) an adverse party may require the attendance of the deponent at trial for cross-examination. That rule is also the common law and is not inconsistent with any part of section 244 of the Income Tax Act.

The trial judge specifically asked counsel for the appellant during the trial on the first charge regarding the 1985 returns if he wanted to cross-examine Mrs. O'Driscoll on her affidavit. His response was “No, not on this one". Accordingly I am satisfied that the appellants waived their right of cross- examination of Mrs. O'Driscoll regarding the 1985 return.

On the trials relating to the 1986 and 1987 returns cross-examination of her on her affidavit was requested and was not allowed. With great respect to the learned trial judge I am of the view that he should have allowed that request and permitted that cross-examination.

Her cross-examination might have been very helpful to the appellants' case. An example where such cross-examination was very effective in a similar situation is R. v. Brecknock (1976), 5 W.W.R. 575, [1976] C.T.C. 776.

Not every error made by a trial judge warrants setting aside a conviction. The issue is was there "no substantial wrong or miscarriage of justice". Criminal Code subparagraph 613(1)(b)(iii).

In my view failure to permit requested cross-examination is a substantial wrong. I do not think that the admission by counsel after conviction that the returns "have been filed” is relevant. Accordingly I am not convinced I should exercise any discretion under subparagraph 613(1 )(b)(iii) of the Code.

In the result the appeal by Maritime Construction Ltd. regarding its 1985 return (S/M/152/88) and by Raymond P. Slattery regarding the 1985 return of Maritime Construction Ltd. (S/M/159/88) are dismissed and those two convictions are confirmed. Their appeals regarding the 1986 and 1987 returns (Maritime Construction Ltd. S/M/157/88 and S/M/158/88: Raymond P. Slattery S/M/160/88 and S/M/161/88) are allowed and those four convictions are set aside and acquittals entered.

Appeals allowed in part.