Her Majesty the Queen v. Sophie Fedoruk, [1965] CTC 566, 65 DTC 5280

CULLITON, C.J.S.:—The respondent was charged with an offence under Section 131(1) of the Income Tax Act, R.S.C. 1952, c. 148, on an Information which reads as follows:

“THAT Sophie Fedoruk of Prince Albert, Saskatchewan, on the 23rd day of October, A.D. 1964, at Prince Albert in the said Province, did fail to file a return required by or under the Income Tax Act to wit: her Information Return on Form T-4 for the year 1963, following demand therefor dated the 23rd day of October, 1964, made upon her pursuant to Section 127 of the Income Tax Act, contrary to Section 131(1) of the Income Tax Act.’’

On December 15, 1964, Mr. Harradence appeared as counsel for a Sophie Fedoruk and entered a plea of not guilty. The case was adjourned from time to time, and finally was heard by the learned Judge of the Magistrates Court on February 24, 1964. Counsel for the Informant filed an affidavit by Joseph Olchoway, an officer of the Taxation Division of the Department of National Revenue in charge of the appropriate records, in which he deposited :

“2. That by registered letter addressed to the said Sophie

Fedoruk, Proprietress of Flamingo Coffee Bar, at City of Prince Albert, Sask. a demand and requirement was on the twenty-third day of October 1964, sent to and made upon the said Sophie Fedoruk for a tax Deduction Information Return on Form TD14.

3. That I identify as exhibits attached to this my affidavit and marked exhibits A’ and ‘B’ respectively, a true copy of the said demand and requirement and a true copy of the relevant portion of the Certificate of Post Office Registration of the said letter.

4. That after careful examination and search of the appropriate records mentioned in paragraph 1 above, I have been unable to find in this particular case that the said return or information by statement or answer required and demanded has been made and filed or provided, up to and including the first day of December, 1964, by the said Sophie Fedoruk.

5. That the said registered letter has not been returned by the Post Office.’’

Learned counsel for the prosecution then submitted that a prima facie case was established within the provisions of Section 136 of the Income Tax Act, supra.

Learned counsel for the defendant called no evidence but contended that a prima facie ease had not been established in that there was no evidence to prove that the Sophie Fedoruk named in the Information and served with a summons was in fact the Sophie Fedoruk to whom the notice was mailed. He further contended that there was no proof of receipt of the demand by Sophie Fedoruk. The learned Judge of the Magis- trates Court gave effect to these contentions and dismissed the Information.

An appeal was taken pursuant to Part 24 of the Criminal Code. On appeal the prosecutor proceeded as he had in the Magistrates Court and learned counsel for the defendant again called no evidence and repeated the submission which he had made in the court below. The learned District Court Judge, in dismissing the appeal said:

‘‘In the case at bar, the Crown proved the proper mailing of a notice to Sophie Fedoruk of Prince Albert and the failure of one, Sophie Fedoruk of Prince Albert, to file a return as required by the notice, but it did not prove that the person upon whom either the Information or the Summons, if any, was served was in fact the Sophie Fedoruk to whom the notice was mailed. It seems to me that if counsel appears for a person who has the same name as the person to whom the notice was sent, but where there is no evidence that such person lives at the same address as that to which the notice was sent, or that she has the same occupation, then it might well be an entirely different person with the same name. who was represented by counsel in court. Counsel in this case pleaded ‘not guilty’ for one, Sophie Fedoruk, and it might well be that he could have presented evidence to show that she was not the Sophie Fedoruk to whom it had been the intention of the Income Tax authorities to serve with the notice.

In my opinion, the Crown should at least have shown that the Information or Summons if any was served on a Sophie Fedoruk who resided at the same place as the address to which the registered letter was sent, which would then give rise to an inference that she might be the same person, but in the present case there is nothing whatever to show any connection whatsoever between the Sophie Fedoruk represented by counsel and the Sophie Fedoruk to whom the registered letter containing the notice was sent. Nor is there any evidence to show on whom the Information or Summons if any was served.”

An appeal is now taken to this Court on the grounds that the learned District Court Judge erred in law in holding,

(1) that it was incumbent upon the prosecution to present evidence that the notice shown by the exhibits to have been forwarded to Sophie Fedoruk, had in fact been received by her; and

(2) that it was incumbent upon the prosecution to present evidence of proof of identity of Sophie Fedoruk served with the summons to be the Sophie Fedoruk named in the exhibits filed by the prosecution.

As to the first ground, I have no hesitation in holding, with all respect, that the learned District Court Judge was in error. In my view, proof of the mailing of the Demand to the person named in the Information is prima facie evidence that such person received the Demand. To defeat this presumption there must be some evidence that the person so named has not received the letter. This was the view expressed by Stewart, J., in Attorney- General Canada v. Storey, 127 C.C.C. 36, and by Wootton, J. in Regina v. Tyhurst, 131 C.C.C. 89; [1962] C.T.C. 119, with which I am in complete agreement.

Section 707(2) of the Criminal Code provides that in a summary conviction proceeding the defendant may appear personally or by counsel or agent. In this case counsel appeared and entered a plea of not guilty. Such a plea could only be entered on behalf of the person named in the Information. Counsel having done so, it was no longer open to him to argue either that the person named in the Information had not been served with the summons (vide Regina v. Tyhurst, supra), or that he was not appearing for the person named in the Information. It is for this reason, with respect, that I cannot follow the reasoning of the learned District Court Judge which suggests that the learned counsel may have been appearing for a Sophie Fedoruk not named in the Information. If this, in fact, was learned counsel’s position, then he should not have entered a plea of not guilty (see Ex parte Dolan (Rex v. Kay), 26 Can. C.C. 171), but should have so advised the judge of the Magistrates Court so the said judge, pursuant to Section 707(2), could have required the respondent to appear personally. Even had there been no plea, it was open to the learned judge of the Magistrates Court, as well as to the learned judge of the District Court, to hold, in the absence of any evidence to the contrary, that the similarity of name and address in the exhibits, and in the Information, raised a presumption of identity sufficient to establish a prima facie case. Vide: R. v. Leach, 17 O.L.R. 648; R. v. Blackburn, 32 Can. C.C. 119; À. v. Streatch, 12 C.R. 193; and R. v. Chowinard, 36 C.R. 421 at 425.

The appeal will be allowed and the judgment dismissing the Information set aside. The matter will be referred back to the learned Judge of the District Court for hearing and disposition. The appellant will have his costs of this appeal and of the appeal in the District Court against the respondent.