CLINTON
J.
Forp,
J.:—Two
informations
have
been
laid
by
the
Crown
(Dominion)
under
the
Income
War
Tax
Act,
R.S.C.
1927,
ch.
97,
and
amendments
thereto,
and
regulations
made
thereunder,
against
the
applicant.
One
is
that
to
evade
payment
of
income
tax
by
a
certain
taxpayer
he
unlawfully
made
a
false
statement
in
a
T-1
general
return
to
the
Minister
of
National
Revenue,
and
the
other
that
for
the
same
purpose
he
destroyed
certain
records
of
the
taxpayer.
The
first
is
charged
as
a
contravention
of
sec.
80,
subsec.
(1),
of
the
said
Act
and
the
second
is
a
contravention
of
subsec.
(2)
of
the
said
section
[as
enacted
by
1944-45,
ch.
43,
sec.
18].
The
applicant
appeared
with
counsel
on
the
return
of
the
summons
before
one
of
the
police
magistrates
of
the
city
of
Calgary,
and
pleaded
not
guilty
to
each
charge,
and
elected
to
proceed
with
the
hearing
of
each
by
way
of
summary
conviction.
Counsel
for
the
crown
intimated
his
intention
to
call
at
the
hearing
as
witnesses
persons
employed
in
the
service
of
His
Majesty
;
that
is,
persons
employed
in
the
administration
of
the
said
Act,
and
also
to
tender
written
statements
furnished
to
the
department
under
the
provisions
of
the
Act.
Counsel
for
the
applicant
thereupon
applied
for
the
proceedings
on
each
charge
to
be
held
in
camera,
and
in
a
written
judgment,
delivered
later,
this
application
was
refused,
with
the
result
that
a
motion
was
made
before
me
in
respect
of
each
charge
for
(1)
an
order
of
prohibition
that
the
police
magistrate
be
prohibited
from
taking
any
further
proceedings
in
open
court
;
(2)
an
order
of
mandamus
that,
if
the
police
magistrate
proceeds
to
hear
the
said
charge,
he
shall
hold
all
proceedings
in
connection
therewith
in
camera,
and
that
any
publication
or
communication
of
any
part
of
the
proceedings
in
respect
thereto
be
prohibited;
(3)
in
the
alternative,
an
order
of
mandamus
that,
if
the
police
magistrate
proceeds
to
hear
the
charge,
he
shall,
before
hearing
any
evidence
whatsoever,
exercise
his
discretion
as
to
whether
the
proceedings
as
to
the
said
charge
shall
be
held
in
camera
or
not.
Several
grounds
were
set
out
in
the
notice
of
motion
and
these
were
very
fully
presented
in
a
written
brief
and
in
an
oral
argument
by
counsel
for
the
applicant
and
replied
to
by
counsel
for
the
crown,
who
stated
that
the
crown
was
neither
opposing
nor
consenting
to
the
applications,
and
regarded
the
matter
as
a
question
of
the
proper
administration
of
justice.
This
is,
in
my
view,
if
T
may
say
so,
the
correct
attitude.
Although
there
are
two
separate
charges
and
two
applications
pending
before
me,
the
general
principles
that
must
govern
the
outcome
of
both
appear
to
be
the
same,
and
I
am
dealing
with
the
two
in
this
judgment.
The
basis
of
the
claim
for
a
hearing
in
camera
is
sec.
81
of
the
Act.
It
reads
:
""
(1)
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.”
It
is
conceded
that
the
magistrate
is
a
person
to
whom
any
such
information
may
be
communicated
for
the
purpose
of
the
hearing,
but
it
is
objected
that
as
it
would
in
this
way
be
given
to
the
public
in
open
court,
the
section
would
be
contravened
unless
the
trial
is
held
in
camera.
My
attention
was
drawn
by
counsel
for
the
crown
to
a
regulation
signed
by
the
Minister
and
Deputy
Minister
of
National
Revenue,
dated
July
31,
1944,
and
found
in
vol.
78,
Canada
Gazette,
p.
3494.
This
regulation,
following
several
recitals
setting
out
the
reasons
for
it,
declares
the
Judge
or
magistrate
of
any
court
of
competent
jurisdiction
in
any
proceeding
under
the
provisions
of
the
Criminal
Code
relating
to
prosecutions
authorized
by
the
Minister
of
National
Revenue
arising
from
the
administration
or
enforcement
of
the
Income
War
Tax
Act
(and
other
named
Acts)
to
be
and
to
be
deemed
to
be
legally
entitled
to
receive
evidence
by
and
from
any
person
employed
in
the
service
of
His
Majesty
with
respect
to
any
information
obtained
under
the
provisions
of
the
said
laws
or
to
recelve
or
view
any
written
statement
or
document
obtained
under
the
provisions
of
the
said
laws
which
are
relevant
to
the
matter
before
the
court.
It
will
be
readily
seen
that
the
purpose
of
this
regulation
is
to
put
the
presiding
justice
into
the
position
of
being
legally
entitled
to
receive
information,
which
sec.
81
above
quoted
prohibits
from
being
communicated
to
any
person
not
so
entitled.
The
recitals
indicate
that
the
regulation
was
made
in
the
interests
of
greater
certainty
for
and
on
behalf
of
the
employees
of
the
departments
concerned;
or,
as
it
would
appear
to
me,
to
assure
them
that
they
can
give
such
information
to
a
court
of
competent
Jurisdiction
and
not
be
subject
to
a
penalty
for
doing
so.
Behind
this
is
the
basic
fact,
as
recited,
that
it
is
necessary
in
such
proceedings
that
disclosure
of
the
information
be
made
to
the
court
with
a
view
to
efficient
administration
or
enforcement
of
the
Act.
However,
as
the
validity
of
the
regulation
was
not
raised
or
argued
before
me,
I
prefer
not
to
base
my
decision
upon
it
but
to
follow
along
other
lines.
The
Income
War
Tax
Act
fixes
penalties
for
breach
of
certain
of
its
provisions.
One
of
these
is
that
under
which
the
charges
are
made.
A
prosecution
for
a
breach
can
be
commenced
only
by
laying
information
under
the
Criminal
Code
and,
upon
this
being
done,
the
procedure
recognized
thereunder
must
be
followed
to
obtain
a
verdict.
The
intention
of
Parliament
as
to
the
method
of
enforcing
the
Act
is
thus
shown.
It
would
stultify
the
purpose
if
on
such
a
prosecution
the
information
required
to
prove
an
alleged
breach
could
not
be
placed
before
the
judge
or
officer
presiding
in
the
criminal
court.
The
concession
made
that
the
magistrate
presiding
over
the
criminal
court
is
entitled
to
receive
the
information
or
evidence
intended
to
be
given
on
behalf
of
the
crown
to
prove
the
charges
must,
I
think
in
fairness,
be
deemed
to
have
been
limited
to
the
right
to
receive
such
if
holding
the
trial
in
camera.
Nevertheless,
in
my
opinion,
if
he
is
entitled
to
receive
it
at
all,
and
I
think
he
is,
it
follows
that
the
charges
may
be
tried
according
to
the
practice
of
the
criminal
court
under
the
Criminal
Code.
It
is
true
that
in
the
administration
of
criminal
law
the
presumption
is
that
an
accused
person
is
innocent
until
proven
guilty.
This
presumption
is
for
the
protection
of
such
person
and
for
the
preservation
of
the
cherished
liberty
of
the
subject,
but
that
is
not,
I
think,
a
valid
reason
for
holding
that
the
court,
as
constituted
to
administer
justice,
has
no
jurisdiction
to
try
charges
such
as
these
in
accordance
with
its
recognized
procedure.
In
my
view
the
question
before
me
resolves
itself
into
one
of
the
jurisdiction
of
the
magistrate,
who
is
seized
with
the
matter,
to
exercise
his
discretion
as
to
the
mode
of
trial.
See.
714
of
the
Criminal
Code
reads:
"The
room
or
place
in
which
the
justice
sits
to
hear
and
try
any
complaint
or
information
shall
be
deemed
an
open
and
public
court,
to
which
the
public
generally
may
have
access
so
far
as
the
same
can
conveniently
contain
them.”
Sec.
645(1)
states
that
in
trying
certain
named
offences
the
court
or
judge
or
presiding
justice
may
exclude
the
public.
These
offences
have
to
do
with
acts
of
indecency
and
obscenity.
Sub-
sec.
(2)
further
enlarges
the
discretion
where
in
the
opinion
of
the
court
or
judge
or
justice
it
will
be
in
the
interests
of
public
morals
to
do
so.
Then
follows
subsec.
(3)
which
reads:
4
‘Nothing
in
this
section
shall
be
construed
by
implication
or
otherwise
as
limiting
any
power
heretofore
possessed
at
common
law
by
the
presiding
judge
or
other
presiding
officer
of
any
court
of
excluding
the
general
public
from
the
courtroom
on
any
case
when
such
judge
or
officer
deems
such
exclusion
necessary
or
expedient.’’
The
italics
are
mine.
Thus
the
power
of
the
presiding
magistrate
is
further
widened.
The
inherent
jurisdiction
of
the
court
at
common
law
to
exclude
the
general
public
from
the
court
room
in
any
case
has
been
the
subject
of
much
judicial
inquiry
and
of
many
decisions.
It
has
been
defined
by
most
eminent
judges
in
different
terms,
each
expressing
in
his
own
way
the
principle
involved
in
the
exercise
of
such
power.
In
all
of
the
cases
the
primary
principle
of
the
open
administration
of
justice
is
recognized.
This
is
clearly
enunciated
in
Scott
v.
Scott
(No.
1)
[1913]
A.C.
417,
82
L.J.P.
74,
by
Lord
Shaw
of
Dunfermline
at
p.
477,
who
says
that
it
is
needless
to
quote
authority
on
this
topic
from
legal,
philosophic
or
historical
writers.
He
does,
nevertheless,
quote
from
Bentham
a
noted
passage
as
follows:
"
1
Publicity
is
the
very
soul
of
justice.
It
is
the
keenest
spur
to
exertion,
and
the
surest
of
all
guards
against
improbity.
It
keeps
the
judge
himself
while
trying
under
trial.”
And
again:
‘‘The
security
of
securities
is
publicity.’’
He
quotes
also
from
Hallam
to
the
same
effect.
However,
in
this
case
Viscount
Haldane,
L.C.
said
:
“The
general
rule
as
to
publicity
must
yield
to
the
paramount
duty
of
the
court
to
secure
that
justice
is
done.”
In
Rex
v.
Lewes
Prison
(Governor)
;
Ex
parte
Doyle
[1917]
2
K.B.
254,
at
271,
86
L.J.K.B.
1514,
Viscount
Reading,
C.J.
Says
:
“It
is
in
my
judgment
plain
that
inherent
jurisdiction
exists
in
any
court
which
enables
it
to
exclude
the
public
where
it
becomes
necessary
in
order
to
administer
justice.
That
is
the
true
meaning
of
the
language
used
by
Earl
Loreburn
and
by
Viscount
Haldane,
L.C.,
in
Scott
v.
Scott
[supra].
The
general
principle
enunciated
in
those
judgments
is
stated
in
a
sentence
by
Earl
Loreburn
who
said
that
the
court
may
be
closed
or
cleared
if
such
precaution
is
necessary
for
the
administration
of
justice.’’
The
principle
on
which
the
court
may
act
in
excluding
the
public
is,
I
think,
well
stated
by
Lush,
J.
in
Norman
v.
Mathews
(1916)
85
L.J.K.B.
857,
32
T.L.R.
303,
affirmed
32
T.L.R.
369.
At
p.
859
he
says
:
"‘I
do
not
think
that
the
court
ought
lightly
to
decide
to
hear
a
case
in
camera.
It
does
not
follow
that
if
there
is
an
application
for
a
case
to
be
heard
in
camera
the
order
ought
to
be
made
as
of
course.
The
court
should
consider
for
itself
whether
there
is
a
prima
facie
ground
for
setting
aside
the
ordinary
method
of
the
administration
of
justice;
but
if
there
are
materials
before
the
court
for
concluding
that
it
is
necessary
in
order
to
secure
that
justice
is
done,
the
proceedings
should
be
in
camera.
There
is
no
question
that
the
court
has
power,
apart
from
any
particular
regulation,
to
hear
a
ease
in
camera
upon
such
grounds
as
these—see
Scott
v.
Scott
[supra].
From
the
various
speeches
of
the
learned
law
lords
in
that
case
it
appears
that
if
it
is
necessary
in
the
interests
of
justice
that
the
public
should
be
excluded,
the
court
has
Jurisdiction
to
exclude
the
public
and
to
hear
and
try
the
case
in
camera.^
Thus
far
I
have
been
dealing
with
the
inherent
jurisdiction
of
the
court
at
common
law
to
exclude
the
public,
because
see.
645,
subsec.
(3),
quoted
above,
expressly
reserves
such
power
to
the
judge
or
other
presiding
officer
of
the
criminal
court
when
such
judge
or
officer
deems
such
exclusion
necessary
or
expedient
;
that
is
to
say,
necessary
or
expedient
for
the
administration
of
Justice;
since,
as
has
appeared
from
the
cases
quoted
from
above,
the
inherent
jurisdiction
of
the
court
at
common
law
is
to
exclude
the
public
where
it
is
necessary
for
such
purpose.
But
it
will
be
noted
that
the
subsection
also
uses
the
word
""expedient”.
This
is
defined
in
the
New
Standard
Dictionary
as
""that
which
furthers
or
promotes
a
desired
end
or
interest
:
a
means
to
an
end’’.
Its
use
in
the
subsection
following
the
word
‘‘necessary’’
cannot
be
to
limit,
and
its
effect
is
rather
to
widen,
the
discretion
of
the
presiding
officer.
In
my
opinion,
the
magistrate
has
the
jurisdiction
under
this
subsection
to
exercise
his
discretion
to
close
the
court
to
the
general
public
on
the
principle
that
it
is
necessary
for
the
proper
administration
of
justice,
or
expedient
for
such
purpose;
that
is,
as
a
practical
means
to
that
end.
Such
a
power
may
be
exercised
before
the
trial
begins
or
at
any
time
during
its
course
as
circumstances
arise
or
a
situation
develops.
But
it
is
said
that
in
his
judgment,
and
the
subsequent
proceedings,
the
magistrate
made
it
clear
that
he
did
not
in
fact
exercise
his
discretion,
since
he
indicated
that,
according
to
the
law
and
the
facts
so
far
advanced
before
him,
he
felt
bound
to
proceed
to
try
the
charges
in
open
court.
If
this
is
the
correct
view
of
his
position,
it
would
mean
that
he
has
reached
a
conclusion,
according
to
his
interpretation
of
the
provisions
of
the
Code,
that
the
should
hold
the
trials
in
open
court.
It
is
to
be
noted
in
this
connection
that
there
is
no
provision
in
the
Code
to
the
effect
that
he
must
hold
a
trial
in
camera.
In
the
view
that
I
take
it
is
these
provisions
that
govern
his
exercise
of
discretion
and
not
the
section
of
the
Income
War
Tax
Act
relied
on
by
the
applicant.
This
brings
me
to
deal
more
particularly
with
the
question
of
whether
an
order
of
prohibition
and
of
mandamus
can
be
granted
on
these
applications.
First,
as
to
prohibition.
In
Segal
v.
Montreal
[1931]
S.C.R.
460,
Lamont,
J.
said:
"
"
In
dealing
with
the
question
of
prohibition
it
is
important
to
bear
in
mind
that
the
functions
of
a
superior
court
on
an
application
for
a
writ
are
in
no
sense
those
of
a
court
of
appeal.
It
has
nothing
to
do
with
the
merits
of
the
dispute
between
the
parties;
it
is
concerned
only
to
see
that
the
[inferior]
court
did
not
transgress
the
limits
of
its
jurisdic-
tion.
,,
Hodgson,
J.A.
in
Re
Rex
v.
Seguin
(1921)
49
O.L.R.
28,
34
C.C.C.
374,
59
D.L.R.
534,
said:
"‘These
objections
.
.
.
deal
with
matters
of
procedure
.
.
.
which
are
within
the
jurisdiction
of
the
learned
Judge
if
he
became
seised
of
the
matter,
as
he
undoubtedly
did;
and
so
are
not
any
ground
for
prohibition.
‘If
justices
have
juris-
disition
over
the
subject-matter
of
the
proceedings
before
them,
a
prohibition
cannot
be
issued
upon
the
ground
that
they
may
make
a
mistake
in
law
in
exercising
their
jurisdiction
.
.
.
.
But
it
is
necessary
that
the
subject-matter
of
the
inquiry
should
be
within
their
jurisdiction
:’
Regina
v.
Justices
of
Kent
(1889)
24
Q.B.D.
181,
183,
194,
59
L.J.M.C.
51.
‘The
question
is
whether
the
inferior
court
has
jurisdiction
to
enter
upon
the
inquiry
and
not
whether
there
has
been
miscarriage
in
the
course
of
the
inquiry:’
In
re
Long
Point
Co.
v.
Anderson
(1891)
18
O.A.R.
401,
405.
‘Prohibition
will
not
lie
unless
there
is
lack
of
jurisdiction
in
the
judicial
officer
or
court
dealing
with
the
proceedings
:’
Per
Boyd,
C.
in
Rex
v.
Phillips
(1906)
11
O.L.R.
478.
‘Error
in
law,
upon
a
question
apart
from
the
jurisdiction
to
try,
will
not
give
a
right
to
prohibition:’
Re
Sigurdson
(1916)
9
W.W.R.
940,
25
Man.
R.
832,
25
C.C.C.
291.”
There
is
here
no
want
or
excess
of
jurisdiction
in
the
magistrate
to
entertain
the
charges.
It
may
be
added
that
to
prohibit
him
as
asked
from
holding
the
trials
otherwise
than
in
camera
would
be
to
prevent
him
from
exercising
the
discretion
vested
in
him.
Secondly,
as
to
mandamus:
In
Reg.
v.
Lewisham
Union
(Guardians)
[1897]
1
Q.B.
498,
66
L.J.Q.B.
403,
it
is
said:
"Under
the
law
a
mandamus
is
not
granted
unless
the
applicant
can
show
that
he
has
a
clear
legal
specific
right
to
ask
for
the
intervention
of
the
court.
’
’
The
substantive
right
relied
upon
by
the
applicant
is
that
the
information
contained
in
the
tax
return
is
confidential
to
the
department
under
sec.
81,
and
cannot
be
given
to
the
public
through
the
medium
of
an
open
court
in
breach
of
the
confidence
reposed
in
the
department
by
the
applicant.
If
such
a
statutory
right
exists,
it
is
not
a
right
that
can
be
enforced
by
mandamus
against
the
magistrate.
The
section
does
not
prohibit
him
from
receiving
the
information
in
court.
It
is
rather
the
officials
of
the
department
who
are
concerned
when
called
at
witnessess
for
the
crown.
The
duty
of
the
magistrate
is
to
try
the
charges
and
to
exercise
his
diseretion
as
to
the
mode
of
trial.
There
is
no
refusal
to
do
so.
He
has
considered
how
he
should
hold
the
hearing
and
has
reached
a
conclusion
based
on
the
facts
so
far
advanced.
In
Tremeear’s
Criminal
Code,
5th
ed.,
pp.
1595-6,
by
A.
B.
Harvey,
K.C.,
under
the
heading
‘‘declining
or
exercising
jurisdiction”,
the
‘statement
is
made:
"
"
The
question
which
usually
arises
in
such
cases
is
whether
the
inferior
tribunal
has
declined
to
exercise
a
discretion
which
it
should
exercise,
in
which
case
it
can
be
compelled
by
mandamus
to
exercise
its
Jurisdiction,
or
whether,
on
the
other
hand,
it
has
exercised
its
jurisdiction
and
come
to
a
conclusion,
in
which
case
mandamus
is
not
a
remedy,
no
matter
how
erroneous
the
conclusion
may
be.’’
Many
quotations
follow
to
show
that
the
principle
has
been
repeatedly
laid
down.
One
is
from
Lord
Denman
in
Reg.
v.
Eastern
Counties
Ry.
(1839)
10
Ad.
&
E.
531,
8
L.J.Q.B.
340,
113
E.R.
201,
where
he
said
:
"The
interference
of
the
court
by
mandamus
is
occasioned
by
inferior
courts
or
persons
refusing
to
proceed
in
some
course
prescribed
by
law,
and
not
in
consequence
of
any
misapprehension
or
error
in
that
course,
provided
they
have
entered
upon
it.’’
It
should
be
noted
that
the
mandamus
sought
here
is
that
if
the
police
magistrate
proceeds
to
hear
the
charges
he
shall
hold
all
proceedings
in
connection
therewith
in
camera.
This,
as
stated
before
in
respect
to
prohibition,
would
be
to
take
away
his
discretion
as
to
the
mode
of
conducting
the
trial
and
compel
him
to
exercise
it
in
one
way
only.
Finally,
as
an
alternative,
this
court
is
asked
to
order
the
police
magistrate,
if
he
proceeds
to
hear
the
charges,
to
exercise
his
discretion
before
hearing
any
evidence
whatsoever
as
to
whether
the
proceedings
shall
be
held
in
camera
or
not.
Although,
in
my
opinion,
the
field
for
the
exercise
of
the
magistrate’s
discretion
is
wider
than
he
indicated
in
his
judgment,
for
the
reasons
that
have
already
appeared
the
application
for
an
order
of
mandamus
must
be
refused.
There
will
be
no
costs.
Judgment
accordingly.
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