Dorron,
J.:—This
is
an
appeal
by
way
of
stated
case.
The
stated
case
follows:
“Case
Stated
by
His
Worship
H.
J.
Cumming,
Q.C.,
one
of
Her
Majesty’s
Provincial
Magistrates
in
and
for
the
Province
of
Saskatchewan,
under
the
provisions
of
Section
734
of
the
Criminal
Code
of
Canada.
1.
Whereas
on
the
26th
day
of
February,
A.D.
1960,
an
information
was
laid
under
oath,
before
me,
by
the
above
named
Ronald
Louis
Lehman,
for
that
Lloyd
Benell
of
the
Town
of
Watrous,
Saskatchewan,
on
the
15th
day
of
December,
A:D.
1959,
did
at
the
said
Town
of
Watrous,
by
the
15th
day
of
December,
1959,
being
a
person
who
paid
salary,
wages
or
other
remuneration
in
the
month
of
November,
1959,
to
officers
or
employees
and
who
deducted
from
said
salaries,
wages
or
other
remuneration,
amounts
stipulated
by
the
Income
Tax
Act,
R.S.C.
148,
as
amended
and
Regulations
made
thereunder,
fail
to
remit
to
the
Receiver
General
of
Canada
the
amount
deducted,
namely
One
Hundred
and
Six
Dollars
and
ninety
cents
($106.90),
thereby
contravening
Section
47(1)
and
committing
an
offence
under
Section
131(2)
of
the
said
Act.
2.
On
the
22nd
day
of
March,
1960,
the
said
charge
was
duly
heard
before
me
in
the
presence
of
both
parties,
and,
after
hearing
the
evidence
adduced
and
the
statement
of
counsel
for
the
Crown,
I
reserved
my
decision.
On
the
21st
day
of
June,
1960,
I
found
the
said
Lloyd
Benell
not
guilty
of
the
said
offence
and
acquitted
him
thereof,
but
at
the
request
of
counsel
for
the
Crown
I
state
the
following
case
for
the
opinion
of
this
Honourable
Court
:
It
was
shown
before
me
that
the
said
Lloyd
Benell
was,
at
the
relevant
time,
a
contractor
in
the
Town
of
Watrous,
Saskatchewan.
During
the
month
of
November,
1959,
the
said
Lloyd
Benell
deducted
from
the
wages
of
his
employees
the
amount
of
One
Hundred
and
Six
Dollars
and
ninety
cents
($106.90)
as
stipulated
by
the
Income
Tax
Act,
R.S.C.
148,
as
amended
and
Regulations
made
thereunder.
This
amount
was
remitted
to
the
Receiver-General
of
Canada
by
the
said
Lloyd
Benell
on
the
12th
day
of
January,
1960,
and
in
addition
thereto
a
late
payment
penalty
of
$19.90
was
paid
by
the
said
Lloyd
Benell
to
the
Receiver-General
of
Canada.
Counsel
for
the
Crown
referred
me
to
Section
136(11)
of
the
Income
Tax
Act.
I
dismissed
the
charge
and
found
the
accused
not
guilty
on
the
ground
that
I
had
no
knowledge
of
any
Regulations
made
under
the
Income
Tax
Act
fixing
the
time
within
which
the
amount
deducted
as
aforesaid
must
be
remitted
to
the
Receiver-General
of
Canada.
Counsel
for
the
Crown
desires
to
question
the
validity
of
the
said
acquittal
on
the
ground
that
it
is
erroneous
in
point
of
law,
the
question
submitted
for
the
judgment
of
this
Honourable
Court
being:
Whether
I
was
correct
in
holding
that
I
had
no
knowledge
of
any
Regulation
made
under
the
Income
Tax
Act
and
amend-
ments
thereto
fixing
the
time
for
remitting
the
said
amounts
deducted
to
the
Receiver-General
of
Canada
in
view
of
the
provisions
of
Section
136(11)
of
the
said
Act
requiring
me
to
‘take
judicial
notice
of
all
regulations
made
under
the
Income
Pax
Act,
R.S.C.
148
and
amendments
thereto.
DATED
at
the
City
of
Saskatoon,
in
the
Province
of
Saskatchewan,
this
29th
day
of
June,
A.
D.
1960.
j
Sgd.
‘H.
J.
Cumming’
H.
J.
Cumming,
Q.C.
Provincial
Magistrate,
Saskatoon,
Saskatchewan.
’
’
The
pertinent
sections
of
the
Act
are:
“47.
(1)
Every
person
paying
•»
(a)
salary
or
wages
or
other
remuneration
to
an
officer
or
employee,
‘
at
any
time
in
a
taxation
year
shall
deduct
or
withhold
therefrom
such
amount
as
may
be
prescribed
and
shall,
at
such
‘time
as
may
be
prescribed,
remit
that
amount
to
the
Receiver
General
of
Canada
on
account
of
the
payee’s
tax
for
the
year
under
this
Part.
131.
(2)
Every
person
who
has
failed
to
comply
with
or
contravened
subsection
(1)
of
section
47,
subsection
(5)
of
section
123,
section
125
or
section
126
is
guilty
of
an
offence
and,
in
addition
to
any
penalty
otherwise
provided
is
liable
on
summary
conviction
to
.~
(a)
a
fine
of
not
less
than
$200
and
not
exceeding
$10,000,
or
(b)
both
the
fine
described
in
paragraph
(a)
and
imprisonment
for
a
term
not
exceeding
6
months.
136.
(11)
Judicial
notice
shall
be
taken
of
all
orders
or
regulations
made
under
this
Act
without
such
orders
or
regulations
being
specially
pleaded
or
proven.’’
(Italics
are
mine.)
The
question
for
determination
is
whether
the
learned
Magistrate
should
have
taken
judicial
notice
of
the
regulations.
Counsel
for
the
applicant
admits
that
he
himself
was
unable
to
find
the
regulations
in
the
Court
House
library
at
Saskatoon
and
that
he
is
not
in
possession
of
The
Canada
Gazette
in
which
the
regulation
in
question
is
published.
When
required
by
me
he
stated
that
regulation
108
provided
that
the
monies
retained
should
be
forwarded
to
the
Receiver
General
of
Canada
by
the
loth
of
the
month
next
following
the
deduction
and
produced
to
me
a
booklet
setting
out
the
regulation
but
it
definitely
purported
not
to
be
official
as
it
was
not
issued
by
the
Queen’s
Printer.
His
instructions
were
that
the
Court
must
take
it
upon
itself
to
acquaint
itself
with
such
regulation
and
that
it
was
not
for
the
appellant
to
produce
or
prove
same.
I
pointed
out
to
him
that
I
did
not
require
proof
of
the
regulation
but
that
it
should
be
submitted
to
me
for
perusal
just
as
a
statute
or
an
authority
cited
is
produced
for
the
perusal
of
the
Court.
Again
he
countered
that
this
was
against
his
instructions
and
that
the
appellant
desired
a
decision
on
the
point
as
a
test
case,
and
it
was
for
me
to
find
the
regulations
by
whatever
means
I
deemed
necessary
even
by
obtaining
same
from
the
Income
Tax
authorities.
To
me
this
cavalier
manner
is
most
discourteous,
not
on
the
part
of
Mr.
Scott
but
by
whoever
gave
him
the
instructions.
How
could
a
Magistrate
not
in
a
Judicial
Centre
in
this
Province
find
the
regulations
when
even
in
the
Court
House
in
the
City
of
Saskatoon
these
regulations
cannot
be
found
in
the
library?
Without
the
assistance
of
counsel
he
is
left
in
doubt.
A
number
of
authorities
were
cited
in
support
of
the
appellant’s
contention.
In
Rex
v.
Fitzgerald,
100
C.C.C.
234,
the
following
excerpt
of
the
judgment
fully
sets
out
the
facts
and
the
law:
“This
is
an
appeal
from
an
order
of
dismissal
of
an
information
charging
that
the
accused
did
unlawfully
operate
on
a
highway
a
commercial
motor
vehicle
to
wit,
a
truck
having
a
weight
with
load
of
20,150
lbs.,
such
being
in
excess
of
the
weight
in
pounds
for
which
such
vehicle
is
registered
and
which
is
shown
on
the
permit
issued
in
respect
of
such
vehicle,
namely,
16,000
lbs.,
contrary
to
the
provisions
of
s.
3(6)
of
the
regulations
made
under
s.
153
of
the
Motor
Vehicle
Act,
1932
(N.S.),
c.
6,
and
amendments
thereto.
The
reference
in
the
information
to
the
section
of
the
regulations
alleged
to
be
contravened
or
violated
is
inaccurate
but
as
no
objection
was
raised
on
that
scope
either
before
the
Magistrate
or
on
appeal
and,
in
any
case,
as
the
trial
proceeded
on
the
footing
that
the
vehicle
of
the
accused
allegedly
carried,
on
the
occasion
set
out
in
the
information,
a
greater
load
than
was
permitted
by
the
regulations
no
prejudice
was
thereby
occasioned
the
accused.
The
Magistrate
dismissed
the
information
because
he
thought
the
relevant
regulations
were
not
proved,
or
in
other
words
that
no
copy
thereof
as
published
by
the
Royal
Gazette
was
tendered
in
evidence.
Section
153(1)
(a)
(am.
1934,
c.
54,
s.
2)
of
the
Motor
Vehicle
Act
authorizes
the
Minister
of
Highways,
subject
to
the
approval
of
the
Governor
in
Council,
to
make
regulations
governing
the
weight
of
any
vehicle
or
class
of
vehicle
which
may
be
operated
on
a
highway,
the
weight
of
the
load
which
may
be
carried
by
such
vehicle
and
the
combined
weight
of
any
such
vehicle
and
the
load
carried
by
it
and
the
ascertaining
of
the
weight
of
such
load
and
of
such
vehicle.
Subsection
(1)
(f)
provides
for
prescribing
penalties
for
the
violation
of
such
regulations,
and
s-s.
(3)
requires
that
such
regulations
be
published
in
the
‘Royal
Gazette
and
shall
thereupon
become
effective
and
have
the
same
force
as
if
enacted
by
the
Act
itself.
If
there
were
no
legislation
or
rule
of
evidence
to
the
contrary
it
would
appear
that
on
the
trial
of
an
information
under
the
regulations
proof
of
their
publication
in
the
Royal
Gazette
would
be
necessary.
There
is,
however,
in
my
opinion,
such
legislation,
embodied
in
s.
9A
of
the
Evidence
Act,
R.S.N.S.
1928,
c.
225
(enacted
1927,
c.
48,
s.
1)
which
is
as
follows:
‘9A.
Notwithstanding
anything
in
this
chapter
every
proclamation
and
every
order
made
or
issued
by
the
Governor
General
or
by
the
Lieutenant
Governor
in
Council,
and
every
publication
thereof
in
the
“Canada
Gazette’’
and
in
the
‘‘
Royal
Gazette’’
shall
be
judicially
noticed
by
all
courts,
magistrates,
justices
of
the
peace,
and
others.’
I
think
that
a
regulation
by
the
Minister,
approved
by
the
Lieutenant-Governor
in
Council
would
be
included
in
the
meaning
of
‘every
proclamation
and
every
order,
made
or
issued’
in
Section
9A,
and
if
this
be
so,
then
Section
9A
provides
that
it
shall
be
judicially
noticed,
and
every
publication
thereof
in
the
Royal
Gazette
shall
likewise
be
judicially
noticed.
Judicial
notice
excludes
or
obviates
proof
therefore,
evidence.
It
makes
evidence
unnecessary.
The
question
raised
here
is
one
of
evidence.
There
is
no
denial
by
the
accused
that
there
are
regulations
dealing
with
the
matters
here
tried
or
of
the
fact
of
publication
in
the
Royal
Gazette.
The
objection
is
simply
that
there
is
no
evidence
of
the
regulations,
that
the
Royal
Gazette
should
have
been
produced
and
put
in
evidence.
Now
Section
9A
of
the
Evidence
Act
makes
it
unnecessary
in
my
opinion,
as
already
stated,
to
produce
the
Gazette
as
evidence
or
to
tender
any
evidence
of
the
regulations.
The
objection,
therefore,
of
lack
of
evidence
of
publication
is,
I
think,
untenable.’’
Section
136(11),
supra,
specially
provides
that
the
regulations
need
not
be
pleaded
or
proven.
The
leading
case
of
Rex
v.
Peu-
gnet,
1
W.W.R.,
1911-1912
at
703,
sets
out
succinctly
that
it
is
unnecessary
to
tender
or
produce
(italics
are
mine)
The
Gazette
as
evidence:
“It
is
also
objected
that
there
is
no
evidence
of
an
extradition
treaty
with
the
Republic
of
France,
or
that
the
offences
charged,
namely
the
offences
of
murder
and
robbery,
are
extraditable
offences.
It
is
not
objected
that
there
is
no
treaty,
or
that
such
treaty
and
the
Order-in-Council
with
reference
thereto
were
not
published
in
The
Gazette
but
the
objection
is
that
there
was
no
evidence
offered
of
such
treaty,
that
The
Gazette
should
have
been
put
in
as
evidence.
I
am
of
opinion
that,
in
view
of
Section
8
of
the
Extradition
Act,
the
publication
of
the
treaty
and
of
the
Order-in-Council
with
reference
thereto
in
The
Gazette
is
sufficient,
and
that
it
is
not
necessary
for
the
prosecution
to
tender
or
produce
The
Gazette
as
evidence.
It
seems
to
me
impossible
to
give
the
latter
portion
of
Section
8
an
intelligent
meaning
at
all
unless
it
means
that
the
court
can
take
judicial
notice
of
the
treaty
and
of
the
Order-in-Council
without
production
of
The
Gazette
to
the
court.
I
may
say
further
that
I
am
confirmed
in
that
view
of
the
section
by
the
fact
that
I
am
unable
to
find
in
any
reported
case
in
our
country
that
evidence
in
this
respect
was
ever
tendered,
or
that
it
was
ever
called
for,
or
that
it
was
ever
held
to
be
necessary.”
I
was
also
referred
to
Rex
v.
Wagner,
[1931]
2
W.W.R.
650.
This
was
a
prosecution
under
The
Game
and
Fisheries
Act
of
Manitoba.
The
Act
was
assented
to
on
April
14,
1930,
but
its
coming
into
force
was
deferred
until
proclaimed
by
the
Lieutenant
Governor.
It
was
argued
by
the
defence
that
it
was
a
necessary
part
of
the
Crown’s
case
to
prove
that
at
the
material
time
the
Act
had
been
brought
into
force.
The
following
is
an
excerpt
of
the
judgment
of
Robson,
J.A.:
“It
seems
to
me
to
be
rather
a
question
of
an
inquiry
by
the
magistrate
at
some
time
or
other
before
he
parted
with
the
matter
to
satisfy
himself
what
the
law
was
rather
than
of
the
production
by
the
Crown
of
evidence
of
a
proclamation
as
part
of
its
prosecution
case.
Section
10
of
The
Manitoba
Evidence
Act,
R.S.M.
1913,
ch.
65,
provides
for
proof
of
proclamations,
orders,
etc.,
by
the
production
of
The
Manitoba
Gazette
containing
them
and
by
other
simple
means.
I
do
not
consider
these
means
as
being
exclusive.
They
are
merely
provided
to
simplify
proof.
They
do
not
in
my
view
limit
the
means
by
which
a
judicial
officer
may
officially
become
acquainted
with
the
law.
In
the
similar
case
of
Marshall
v.Wet-
tenhall
Bros.
(1914),
V.L.R.
266,
A’Beckett,
J.,
at
269,
says:
“Section
17
of
the
Evidence
Act,
1890,
provides
various
modes
by
which
a
proclamation
may
be
proved,
but
this
does
not
affect
the
question
of
whether
proof
is
necessary
when
the
judicial
officer
knows
the
contents
of
a
proclamation
independently
of
proof.
Obviously
in
acting
on
such
knowledge,
or
supposed
knowledge,
he
does
so
at
the
risk
of
his
recollection
being
at
fault;
but
is
he
obliged
to
require
proof
of
that
which
he
thinks
he
knows?
It
is
not
disputed
that
he
could
require
it
if
he
wished
to
assure
himself.
Judges
have
discretion
to
require
information
on
some
matters
which
they
may,
if
they
think
fit,
judicially
note
(italics
are
mine).
See
Stephen’s
Digest
of
the
Law
of
Evidence,
art.
59,
as
to
whether
proclamations
such
as
this
may
be
judicially
noticed.
Taylor
on
Evidence,
art.
5
of
chap.
2,
says
that
the
Judges
must
recognize
without
proof
Royal
proclamations,
such
being
Acts
of
State.
Neither
this
passage
nor
the
other
passages
in
Phipson
on
Evidence
and
Steven’s
Digest
of
the
Law
of
Evidence,
to
which
I
have
been
referred,
appear
to
me
conclusive
on
the
point.
before
me.
What
weighs
with
me
is
the
manifest
intention
of
the
Act
under
which
the
proclamation
was
made,
that
the
proclamation
should
inform
all
persons
of
the
state
of
the
law,
and
the
apparent
absurdity
of
refusing
to
permit
a
judicial
officer,
to
act
on
his
knowledge
of
the
law
so
supposed
to
be
made
public.
I
hold
that
the
magistrates
were
entitled
to
act
on
their
knowledge
of
the
state
of
the
law
without
having
before
them
the
proclamation
which
formed
part
of
the
law.’
On
the
day
fixed
for
the
coming
into
force
of
the
law
everyone
was
bound
to
take
notice
of
it,
even
the
accused,
and
I
respectfully
consider
that
that
fundamental
rule
of
law
also
extended
to
the
magistrate.
In
Reg.
v.
Westley
(1860),
29
L.J.M.C.
35;
8
Cox
C.C.
244,
at
250,
Pollock,
C.B.,
said:
r
“The
Court
is
bound
to
take
notice
of
all
statutes,
and
we
know
there
is
no
other
statute
that
could
be
referred
‘to
except
the
one
in
question.’
Salmond,
Jurisprudence,
6th
ed.,
at
28,
says:
‘A
judge
may
know
much
in
fact
of
which
in
law
he
is
deemed.
ignorant
and
of
which,
therefore,
he
must
be.
in-
_..
formed
by
evidence
legally
produced.
Conversely
he
may
be
ignorant
in
fact
of
much
that
by
law
he
is
entitled
judicially
to
notice,
and
in
such
a
case
it
is
his
right
and
duty
to
inform
(…:
himself
by
such
means
as
seem
good
to
him
(italics
are
mine).
The
general
rule
on
the
matter
is
that
courts
of
justice
know
the
law,
but
are
ignorant
of
the
facts.
The
former
may
and
must
be
judicially
noticed,
while
the
latter
must
be.
proved.
And
he
gives
exceptions
such
as
local
customs,
mercantile
customs,
private
legislation,
foreign
law
and
conventional
law.
In
Mighell
v.
Johore
(Sultan),
[1894]
1
Q.B.
149;
63
L.J.Q.B.
593,
the
trial
judge
communicated
with
the
foreign
Office
to
get
information
as
to
an
alleged
foreign
sovereign
for
use
in
a
cause
and
the
Court
of
Appeal
held
that
this
was
a
proper
procedure.”
The
above
authorities
leave
no
doubt
that
judges
are
bound
to
take
judicial
notice
of
the
law
and
regulation
108
of,
the
Income
Tax
Regulations
by
virtue
of
Section
136(11)
is
the
law.
The
language
of
the
said
section
is
so
clear
and
unequivocal
that
surely
it
is
quite
unnecessary
to
have
it
interpreted
by
way
of
a
test
case.
At
the
risk
of
being
prolix
I
wish
to
state
the
difficulty
and
waste
of
time
I
underwent
to
find
the
illusive
regulation
108—
The
Canada
Gazette
is
not
in
the
library
at
Saskatoon.
On.:my
return
to
Regina
I
found
Canada
Gazettes
galore
in
the
Court
House
library
but
was
unable
to
find
the
regulation
in
question.
Later;
on
my
return
to
Saskatoon
to
preside
over
the
regular
sittings
of
the
Court,
I
telephoned
Mr.
Scott
for
information
as
to
the
year
it
was
published
and
upon
ascertaining
that
he
was
not
available,
I
received
information
from
another
source
in
the
office
with
which
he
had
been
associated
that
the
regulation
appeared
in
1954.
Again,
on
my
return
to
Regina,
I
found
the
1954
Gazettes
and
the
consolidated
index.
I
thought
my
task
was
finally
at
an
end
but
unfortunately
the
volumes
containing
income
tax
regulations
were
missing!
Fortunately,
I
found,
but
not
in
the
library,
Vol.
2,
Statutory
Orders
and
Regulations
Consolidated,
1955,
published
by
the
Queen’s
Printer
in
which
that
portion
of
regulation
108
applicable
to
this
appeal
is
as
follows
:
“108.
(1)
Amounts
deducted
or
withheld
under
the
provisions
of
subsection
(1)
of
Section
47
of
the
Act
shall
be
paid
to
the
Receiver
General
of
Canada
on
or
before
the
fifteenth
day
of
the
month
next
succeeding
the
month
in
which
the
employer
paid
the
remuneration.’’
I
have
set
out
my
endeavours
to
illustrate
the
waste
of
time
to
which
I
was
subjected
in
order
to
satisfy
the
whim
of
whoever
gave
instructions
to
Mr.
Scott.
Law
enforcement
officers
should
take
notice
that
judges
and
magistrates
in
this
day
and
age
are
extremely
busy.
In
matters
of
this
kind
counsel
should
give
every
assistance
to
a
judge
or
magistrate
by
producing
any
regulation
in
question
not
as
evidence
or
proof
of
publication
but
for
his
perusal.
This,
in
my
view,
is
the
procedure
which
should
be
followed
in
order
to
expedite
proceedings.
I
must
find
that
the
learned
Magistrate
was
wrong
in
holding
that
he
had
no
knowledge
of
any
regulation
made
under
the
Income
Tax
Act
and
amendments
thereto
fixing
the
time
for
remitting
the
said
amounts
deducted
to
the
Receiver
General
of
Canada
in
view
of
the
provisions
of
Section
136(11)
of
the
said
Act
requiring
him
to
take
judicial
notice
of
all
regulations
made
under
the
Income
Tax
Act,
R.S.C.
148
and
amendments
thereto.
The
appeal
will
be
allowed.
I
have
no
alternative
but
to
impose
on
the
respondent
the
minimum
fine
of
$200.
As
to
costs
I
have
no
doubt
that
the
experienced,
learned
Magistrate
would
have
found
the
respondent
guilty
had
the
proper
procedure
been
followed.
For
that
reason
there
will
be
no
costs
imposed
on
the
respondent.
Appeal
allowed.
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