WHITTAKER,
J.:—The
Crown
has
issued
a
subpoena
requiring
the
Director
of
Taxation
of
the
Vancouver
district
office
of
the
Taxation
Division
of
the
Department
of
National
Revenue
to
give
evidence
in
this
case
and
to
produce
the
income
tax
returns
filed
by
the
accused
for
the
years
1944
to
1950
inclusive.
The
Minister
of
National
Revenue
has
filed
an
affidavit
objecting
both
to
the
production
of
the
documents
and
to
the
giving
of
oral
evidence
on
the
general
ground
that
the
production
of
the
documents
and
the
giving
of
the
evidence
would
be
prejudicial
to
the
public
interest.
I
have
had
the
benefit
of
argument
by
counsel
engaged
by
the
Minister
and
by
Crown
Counsel
engaged
in
this
ease.
Thus
we
have
the
Crown
(Provincial)
contending
that
the
proper
administration
of
justice
requires
the
production
of
the
documents,
and
the
Crown
(Dominion)
through
the
Minister
of
National
Revenue
contending
that
the
public
interest
demands
that
production
be
withheld.
The
Minister’s
claim
of
privilege
is
based
on
Section
81
of
the
Income
War
Tax
Act,
R.S.C.
1927,
ce.
97,
and
Section
121
of
the
Income
Tax
Act,
1948,
c.
52,
and
also,
I
gather,
on
authorities
apart
from
statute.
Said
Section
81
provides:
“81.
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.
“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.’’
Section
121
provides:
“Every
person
who,
while
employed
in
the
service
of
His
Majesty,
has
communicated
or
allowed
to
be
communicated
to
a
person
not
legally
entitled
thereto
any
information
obtained
under
this
Act
or
has
allowed
any
such
person
to
inspect
or
have
access
to
any
written
statement
furnished
under
this
Act
is
guilty
of
an
offence
and
liable
on
summary
conviction
to
a
fine
not
exceeding
$200.’’
There
have
been
many
cases
in
which
the
courts
have,
in
civil
suits
between
private
parties,
refused
to
order
production
of
documents
in
the
custody
of
a
public
official
on
the
ground
that
disclosure
would
be
prejudicial
to
the
public
welfare.
The
exigencies
of
this
long
and
complicated
trial
have
made
it
impossible
for
me
to
read
all
those
cases,
but
in
general
I
think
it
may
be
said
that
the
effect
of
them
is
that
if
the
production
would
be
injurious
to
the
public
service
the
general
public
interest
must
be
considered
paramount
to
the
individual
interest
of
a
suitor
in
a
court
of
justice.
It
was
so
stated
by
Pollock,
C.B.
in
Beatson
v.
Skene
(1860),
5
H.
&
N.
838,
at
852;
157
E.R.
1415,
at
1421.
Also
in
Duncan
v.
Cammell
Laird
&
Co.
Ltd.,
[1942]
A.C,
624;
111
L.J.K.B.
406,
Viscount
Simon,
L.C.,
said
at
410:
‘‘There
is
thus
express
authority
in
this
House
that
a
Court
of
law
ought
to
uphold
an
objection,
taken
by
a
public
department
called
on
to
produce
documents
in
a
suit
between
private
citizens,
that
on
grounds
of
publie
policy
the
documents
should
not
be
produced.’’
Viscount
Simon,
L.C.,
later
in
his
judgment,
is
careful
to
say
that
the
judgment
of
the
House
is
limited
to
civil
actions.
In
Weber
v.
Pawlik
[[1952]
C.T.C.
32],
a
civil
suit
between
private
parties,
the
learned
Chief
Justice
of
this
Court
refused
to
order
production
of
income
tax
returns,
the
Minister
having
filed
an
objection,
and
was
sustained
by
the
Court
of
Appeal,
O’Halloran,
J.A.,
dissenting.
Robertson,
J.A.,
stated
that
there
might
be
other
cases
where
the
minister
would
not
have
adequate
justification
to
object
to
production.
This
is
not
a
suit
between
private
citizens.
It
is
a
criminal
trial,
and
it
seems
strange
that
there
should
be
this
conflict
between
two
branches
of
government,
one
charged
with
the
collection
of
revenue
and
the
other
with
the
administration
of
justice
in
criminal
matters.
I
have
been
referred
to
only
one
criminal
case
in
which
this
question
arose.
In
Rex
v.
Ship
(1949),
8
C.R.
26;
95
C.C.C.
143
(Que.)
the
accused
was
charged
with
keeping
a
common
gaming
house.
The
Crown
put
in
evidence
income
tax
returns
filed
by
the
accused.
The
accused
was
convicted.
He
appealed,
one
of
the
grounds
of
appeal
being
that
the
returns
were
improperly
admitted
in
evidence
because
of
Section
81
of
the
Income
War
Tax
Act.
The
Minister
had
not
objected
to
the
production
of
the
returns,
and
on
that
ground
Mr.
Owen
seeks
to
distinguish
the
case
from
this.
It
seems
clear,
however,
from
the
reasons
for
judgment
that
the
decision
would
have
been
the
same
even
if
the
Minister
had
objected.
The
Court
of
King’s
Bench,
Appeal
Side,
ruled
that
the
returns
were
properly
admitted.
Barclay,
J.,
said
at
p.
155
:
“It
would
be
a
curious
position
to
take
that
when
the
Crown
obtains
knowledge
through
returns
of
the
commission
of
some
crime
not
connected
with
the
Act,
it
should
be
prohibited
from
using
that
information
against
the
perpetrator
of
the
crime.
I
am
of
the
opinion
that
when
evidence
contained
in
the
tax
return
is
pertinent
as
evidence
on
any
criminal
charge,
the
Magistrate
before
whom
that
charge
is
being
tried
is
a
person
legally
entitled
to
the
information.
’
’
I
am
in
respectful
agreement
with
that.
I
rule
that
the
returns
must
be
produced
and,
if
relevant
and
otherwise
admissible,
may
be
given
in
evidence.
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