Hughes,
CJNB
(per
curiam):—This
is
an
appeal
by
the
informant
by
way
of
stated
case
pursuant
to
the
provisions
of
section
762
of
the
Criminal
Code
from
the
dismissal
by
a
judge
of
the
Provincial
Court
at
Fredericton
of
an
information
which
charged
that
the
defendant
on
or
before
August
13,
1975,
did
unlawfully
fail
to
provide
to
the
Officer
of
the
Minister
of
National
Revenue
at
Saint
John,
in
the
County
of
Saint
John,
Province
of
New
Brunswick,
certain
information
to
wit:
to
provide
information
to
establish
any
tax
liability
following
demand,
therefore,
dated
the
14th
day
of
July,
1975
made
upon
him
pursuant
to
Section
231(3)
of
the
Income
Tax
Act
contrary
to
Section
238(2)
of
the
Income
Tax
Act.
In
order
to
prove
service
of
the
alleged
demand
for
information
to
establish
tax
liability,
and
the
unlawful
failure
of
the
defendant
to
provide
such
information,
counsel
for
the
informant
tendered
an
affidavit
of
an
officer
of
the
Department
of
National
Revenue
which
the
parties
agree
complied
with
the
provisions
of
subsections
244(5)
and
(7)
of
the
Income
Tax
Act,
RSC
1970-71-72,
c
63,
which
read
as
follows:
244.
(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.
(7)
Where,
by
this
Act
or
a
regulation,
a
person
is
required
to
make
a
return,
statement,
answer
or
certificate,
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
and
that
after
a
careful
examination
and
search
of
the
records
he
has
been
unable
to
find
in
a
given
case
that
the
return,
statement,
answer
or
certificate,
as
the
case
may
be,
has
been
made
by
such
person,
Shall
be
received
as
prima
facie
evidence
that
in
such
case
that
person
did
not
make
the
return,
statement,
answer
or
certificate,
as
the
case
may
be.
When
the
affidavit
of
the
officer
of
the
Department
of
National
Revenue
was
tendered
counsel
for
the
defendant
objected
to
iis
sufficiency
to
prove
the
facts
therein
deposed
to
without
proof
that
notice
of
intention
to
use
the
affidavit
had
been
given
to
the
defendant
as
required
by
the
provisions
of
section
28
of
the
Canada
Evidence
Act,
RSC
1970,
c
E-10,
which
read:
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.
It
was
conceded
by
counsel
for
the
informant
on
this
appeal
that
if
Section
28
is
applicable
the
notice
of
intention
to
use
the
affidavit
given
to
the
defendant
was
insufficient.
The
trial
judge
ruled
that
notice
by
the
informant
of
intention
to
use
the
affidavit
of
the
officer
of
National
Revenue
in
evidence
was
required
by
subsection
28(1)
and
there
being
no
other
evidence
to
prove
the
facts
contained
in
the
affidavit,
he
dismissed
the
information.
The
question
submitted
by
the
trial
judge
to
this
Court
reads:
Did
I
err
in
law
in
holding
that
the
Informant
in
attempting
to
introduce
an
Affidavit
pursuant
to
the
power
in
Section
244(9)
of
the
Income
Tax
Act,
SC
1970-71-72,
c
63,
was
bound
to
comply
with
the
provisions
of
Section
28
of
the
Canada
Evidence
Act,
RSC
1970,
c
E-10?
On
this
appeal
counsel
for
the
informant
in
seeking
the
reversal
of
the
ruling
of
the
trial
judge
submits
(1)
that
the
affidavit
of
the
officer
of
the
Department
of
National
Revenue
does
not
fall
within
the
scope
of
section
28
of
the
Canada
Evidence
Act,
and
(2)
that
the
provisions
of
the
Income
Tax
Act
respecting
proof
of
service
by
registering
mail
of
a
demand
made
pursuant
to
subsection
231(3)
by
the
affidavit
of
an
officer
of
the
Department
of
National
Revenue
made
in
compliance
with
subsection
244(5)
of
the
Income
Tax
Act
is
not
subject
to
any
of
the
provisions
of
the
Canada
Evidence
Act
by
reason
of
section
36
thereof.
Subsection
(5)
of
section
244
of
the
Income
Tax
Act
provides
a
Statutory
device
for
proving
by
affidavit
the
service
of
a
demand
by
registered
mail
where
provision
is
made
by
the
Act
or
a
regulation
for
sending
by
mail
a
request
for
information,
notice
or
demand.
When
the
provisions
of
the
subsection
are
properly
observed
the
affidavit
of
the
officer,
including
the
exhibits
attached
thereto
being
(1)
the
post
office
certificate
of
registration
of
the
letter
and
(2)
the
true
copy
of
the
request,
notice
or
demand,
constitutes
‘‘prima
facie
evidence
of
the
sending
and
of
the
request,
notice
or
demand”.
Subsection
(7)
of
the
same
section
enacts
that
on
proof
of
certain
facts
by
affidavit
(which
in
the
present
case
were
deposed
to)
it
“shall
be
received
as
prima
facie
evidence
that
in
such
case
that
person
did
not
make
the
return,
statement,
answer
or
certificate,
as
the
case
may
be”.
It
is
the
submission
of
counsel
for
the
defendant
that
notwithstanding
the
above
mentioned
provisions
of
the
Income
Tax
Act,
subsection
244(5)
is
subject
to
section
28
of
the
Canada
Evidence
Act
since
an
affidavit
and
proof
of
service
by
registered
mail
under
‘‘any
Act”
falls
within
the
provisions
of
subsection
26(3)
of
the
Canada
Evidence
Act.
This
subsection
reads
as
follows:
26.
(3)
Where
by
any
Act
of
Canada
or
regulation
thereunder
provision
is
made
for
sending
by
mail
any
request
for
information,
notice
or
demand
by
a
department
or
other
branch
of
the
public
service,
an
affidavit
of
an
officer
of
the
department
or
other
branch
of
the
public
service
sworn
before
any
commissioner
or
other
person
authorized
to
take
affidavits
setting
out
that
he
has
charge
of
the
appropriate
records,
that
he
has
a
knowledge
of
the
facts
in
the
particular
case,
that
such
a
request,
notice
or
demand
was
sent
by
registered
letter
on
a
named
date
to
the
person
or
firm
to
whom
ft
was
addressed
(indicating
such
address)
and
that
he
identifies
as
exhibits
attached
to
such
affidavit
the
post
office
certificate
of
registration
of
such
letter
and
a
true
copy
of
such
request,
notice
or
demand,
shall,
upon
production
and
proof
of
the
post
office
receipt
for
the
delivery
of
such
registered
letter
to
the
addressee,
be
received
in
evidence
as
prima
facie
proof
of
such
sending
and
of
such
request,
notice
or
demand.
When
subsection
244(5)
of
the
Income
Tax
Act
is
compared
with
subsection
26(3)
of
the
Canada
Evidence
Act
it
will
be
observed
that
in
addition
to
the
exhibits
required
by
subsection
244(5),
subsection
26(3)
requires
as
a
condition
to
the
sufficiency
of
the
affidavit
as
proof
of
the
fact
of
sending
and
of
the
demand,
“production
and
proof
of
the
post
office
receipt
for
the
delivery
of
such
registered
letter
to
the
addressee”.
It
was
urged
by
counsel
for
the
defendant
that
subsection
26(3)
and
therefore
section
28
of
the
Canada
Evidence
Act
applies
to
the
Income
Tax
Act
in
so
far
as
subsection
231(3)
of
that
Act
makes
provision
for
serving
of
a
demand
by
“registered
letter”.
It
does
not
follow,
in
my
opinion,
that
the
mode
of
proof
of
service
by
registered
mail
described
by
subsection
26(3)
of
the
Canada
Evidence
Act
is
the
only
permissible
statutory
mode
of
proof.
The
affidavit
of
the
officer
of
the
Department
of
National
Revenue
was
made
in
compliance
with
subsection
244(5)
of
the
Income
Tax
Act
which
provides
that
the
affidavit
of
the
officer
with
the
necessary
exhibits
“shall
be
received
as
prima
facie
evidence
of
the
sending
and
of
the
request,
notice
or
demand”.
In
my
opinion
the
Court
must
give
effect
to
this
provision
when
it
is
invoked
and
that
its
application
is
not
limited
by
section
28
of
the
Canada
Evidence
Act.
Had
Parliament
intended
to
require
that
the
mode
of
proving
the
sending
of
a
demand
by
mail
which
is
authorized
by
subsection
244(5)
of
the
Income
Tax
Act
should
be
subject
to
the
requirement
of
notice
prescribed
by
section
28
of
the
Canada
Evidence
Act
I
think
that
section
would
have
specifically
stated
it
applied
to
proof
of
copies
of
documents
authorized
under
any
other
Act
of
Parliament.
In
the
instant
case
the
affidavit
of
the
officer
of
the
Department
of
National
Revenue
to
which
was
attached
a
copy
of
the
demand
sent
by
mail
to
the
defendant
was
tendered
by
the
informant
under
authority
of
subsections
244(5)
and
(7)
and
not
“under
the
authority
of
section
23,
24,
25,
26
or
27’’
of
the
Canada
Evidence
Act.
In
my
opinion
section
28
has
no
application
to
the
mode
of
proof
authorized
under
subsection
244(5).
For
the
foregoing
reasons
I
would
answer
the
question
propounded
by
the
trial
judge
in
the
affirmative,
allow
the
appeal,
set
aside
the
order
of
the
trial
judge
dismissing
the
information
and
remit
the
matter
to
him
for
determination
of
the
merits
pursuant
to
paragraph
768(1)(c)
of
the
Criminal
Code.
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