R. v. German and Medicine Hat Greenhouses Ltd., (1977) 6 A.R. 357 (TD)

• Judge: Laycraft, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 29, 1977
• Citations: (1977), 6 A.R. 357 (TD)

R. v. German (1977), 6 A.R. 357 (TD)

MLB headnote and full text

R. v. German and Medicine Hat Greenhouses Ltd.

Indexed As: R. v. German and Medicine Hat Greenhouses Ltd.

Alberta Supreme Court

Trial Division

Judicial District of Calgary

Laycraft, J.

July 29, 1977.

Summary:

This case arose out of charges against the accused of income tax evasion and making false statements in income tax returns contrary to the Income Tax Act, S.C. 1970-71-72, c. 63. Investigators of the Department of National Revenue completed their investigation of the accused and were ready to prosecute the accused in August, 1971 and the Minister was given a recommendation to prosecute. However, the Minister did not give the matter his attention and his successor approved the prosecution in January, 1973. When the six informations were laid, four were outside the five year limitation period provided by s. 244(4) of the Income Tax Act, but the Minister submitted a certificate under s. 244(4) extending the limitation period. Under s. 244(4) the extended limitation period was for one year from the day on which evidence came to the Minister's knowledge which was sufficient in his opinion to justify a prosecution. Section 244(4) also provided that the certificate of the Minister respecting the day the evidence came to his knowledge was conclusive evidence thereof. The accused argued that the knowledge of the investigators and prosecutors of the Minister in August, 1971 should be deemed to be the knowledge of the Minister under s. 244(4), so that the informations were laid more than one year from the Minister's acquisition of knowledge. The accused applied for an order of prohibition to prohibit the provincial court judge from proceeding on the informations.

The Alberta Supreme Court, Trial Division, dismissed the application and held that the informations were valid. The Trial Division held that the one year limitation period did not start to run until the Minister was briefed on the case and decided to prosecute in January, 1973. The Trial Division held that the knowledge and opinion of the Minister were required to be the Minister's own and could not be delegated to someone else to acquire. The Trial Division held that knowledge and opinion of his officers was not that of the Minister - see paragraphs 32 to 46.

For a prior proceeding in this case, see German v. Government of Canada et al. (1977), 2 A.R. 612.

Administrative Law - Topic 6401

Judicial review - Prohibition - When remedy available - The accused was charged with four income tax offences in which the informations were laid outside the five year limitation period under s. 244(4) of the Income Tax Act, S.C. 1970-71-72, c. 63 - The accused applied for an order of prohibition to prohibit the provincial court judge from proceeding on the informations - The Alberta Supreme Court, Trial Division, held that prohibition was the appropriate remedy, when it was not apparent on the face of the informations that the limitation period had expired - See paragraphs 25 to 32.

Criminal Law - Topic 253

Abuse of process - Oppressive or other conduct by the Crown constituting abuse of process - The Minister of National Revenue laid informations against the accused, which would normally have been out of time, but the limitation period was extended by a certificate from the Minister under s. 244(4) of the Income Tax Act, S.C. 1970-71-72, c. 63 - However, the informations were not laid for 16 months after the Department was ready to prosecute - The accused submitted that the informations should be quashed, because the delay constituted abuse of process - The Alberta Supreme Court, Trial Division, refused to quash the informations and held that delay in initiating a prosecution which is not barred by a limitation period was not an abuse of process - See paragraphs 47 to 49.

Criminal Law - Topic 7267

Summary conviction proceedings - Informations - Procedure - Objections - The Alberta Supreme Court, Trial Division, stated that, where a defect is apparent on the face of an information, the accused should object and move to quash the information before plea - The Trial Division stated that an application for an order of prohibition was not an appropriate remedy - See paragraphs 27 to 28.

Crown - Topic 703

Authority of Minister - Delegation of authority - Delegable matters - Section 244(4) of the Income Tax Act, S.C. 1970-71-72, c. 63, provided a limitation period for prosecutions of one year from the day on which evidence came to the Minister's knowledge which was sufficient in his opinion to justify a prosecution - Section 244(4) also provided that the certificate of the Minister respecting the day the evidence came to his knowledge was conclusive evidence thereof - The Alberta Supreme Court, Trial Division, held that the Minister could delegate the power to sign the certificate - See paragraphs 41 to 43.

Crown - Topic 704

Authority of Minister - Delegation of authority - Non-delegable matters - Section 244(4) of the Income Tax Act, S.C. 1970-71-72, c. 63, provided a limitation period for prosecutions of one year from the day on which evidence came to the Minister's knowledge which was sufficient in his opinion to justify a prosecution - The Alberta Supreme Court, Trial Division, held that the knowledge and opinion of the Minister were required to be the Minister's own and could not be delegated to someone else to acquire - The Trial Division held that knowledge or opinion of the Minister's officers or employees was not that of the Minister - See paragraphs 33 to 40.

Evidence - Topic 4238

Witnesses - Privilege - Lawyer-client communications - Documents prepared in contemplation of litigation - An investigator for the Department of National Revenue prepared a "Prosecution Report" after his investigation of a taxpayer - The report was for the use of the Department's lawyers in a recommended prosecution of the taxpayer and was a detailed summary of all facts and documents known to the investigator - It included a list of proposed witnesses and briefs of the evidence of each - The Alberta Supreme Court, Trial Division, held that the report was a privileged communication - See paragraph 16.

Income Tax - Topic 9428

Enforcement - Limitation of actions - Extension of period - Knowledge of Minister - Income Tax Act, S.C. 1970-71-72, c. 63, s. 244(4), provided a limitation period for prosecutions of one year from the day on which evidence came to the Minister's knowledge which was sufficient in his opinion to justify a prosecution - Section 244(4) also provided that the certificate of the Minister respecting the day the evidence came to his knowledge was conclusive evidence thereof - Investigators of the Department of National Revenue completed their investigation and were ready to prosecute the accused in August, 1971 and the Minister was given a recommendation to prosecute - However, the Minister did not give the matter his attention and his successor approved the prosecution in January, 1973 - When the six informations were laid, four were outside the five year limitation period provided by s. 244(4), but the Minister submitted a certificate under s. 244(4) extending the limitation period - The accused argued that the knowledge of the investigators and prosecutors of the Minister in August, 1971 should be deemed to be the knowledge of the Minister under s. 244(4), so that the informations were laid more than one year from the Minister's acquisition of knowledge - The Alberta Supreme Court, Trial Division, held that the informations were valid and that the one year period did not start to run until the Minister was briefed on the case and decided to prosecute in January, 1973 - The Trial Division held that the knowledge and opinion of the Minister were required to be the Minister's own and could not be delegated to someone else to acquire - The Trial Division held that knowledge or opinion of the Minister's officers was not that of the Minister - See paragraphs 32 to 46.

Cases Noticed:

R. v. Keddy (1961), 130 C.C.C. 226 (N.S.C.A.), appld. [para. 26].

R. v. Karpinski, [1957] S.C.R. 343, appld. [para. 26].

Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756, appld. [para. 30].

R. v. Tottenham and District Rent Tribunal ex p. Northfield (Highgate) Ltd., [1957] 1 Q.B. 103, appld. [para. 30].

Granby Construction and Equipment Ltd. v. Milley, 74 D.T.C. 6300, revd. 74 D.T.C. 6543, consd. [para. 38].

Weintraub v. The Queen, [1972] F.C. 611, appld. [para. 41].

Mungoni v. Attorney General for Northern Rhodesia, [1960] A.C. 336, consd. [para. 44].

Potter v. The Queen, 37 C.R.N.S. 313; 1 A.R. 415, folld. [para. 48].

R. v. Rourke, [1975] 6 W.W.R. 591; 16 N.R. 181, appld. [para. 48].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 732(1) [para. 27].

Income Tax Act, S.C. 1970-71-72, c. 63, sect. 220(1) [para. 35]; sect. 221(f) [para. 36]; sect. 244(4) [para. 5].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 23(2) [para. 34].

Counsel:

J.E. Redmond, Q.C. and D.G. McKenzie, for N.V. German and Medicine Hat Greenhouses Ltd.;

W.J. Major and C.J. Wilson, for Her Majesty the Queen and Attorney General for Canada.

This case was heard at Calgary, Alberta, before LAYCRAFT, J., of the Alberta Supreme Court, Trial Division, Judicial District of Calgary.

On July 29, 1977, LAYCRAFT, J., delivered the following judgment: