R. v. German and Medicine Hat Greenhouse Ltd., (1978) 13 A.R. 232 (CA)

• Judge: McDermid, Clement and Lieberman, JJ.A.
• Case Date: November 29, 1978
• Citations: (1978), 13 A.R. 232 (CA)

R. v. German (1978), 13 A.R. 232 (CA)

MLB headnote and full text

R. v. German and Medicine Hat Greenhouse Ltd.

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

Alberta Supreme Court

Appellate Division

McDermid, Clement and Lieberman, JJ.A.

November 29, 1978.

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. The accused alleged that the informations laid against him were invalid on several grounds. The accused applied to the Trial Division of the Alberta Supreme Court for an order of prohibition to prohibit the trial judge from proceeding on the informations. The Trial Division dismissed the application and held that the informations were valid. The judgment of the Trial Division is reported at 6 A.R. 357. The accused appealed to the Alberta Court of Appeal.

The Alberta Court of Appeal dismissed the appeal and affirmed the judgment of the Trial Division.

Income Tax - Topic 9428

Enforcement - Limitation of actions - Extension of limitation period by Minister - What constitutes knowledge of the Minister - S. 244(4) of the Income Tax Act 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 - S. 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 six informations were laid, four were outside the five year limitation period provided for 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 Court of Appeal 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 Court of Appeal held that knowledge or opinion of the Minister's officers was not that of the Minister - The Court of Appeal held that the certificate of the Minister was conclusive and that the informations were laid within the applicable limitation period - See paragraph 27.

Crown - Topic 704

Authority of Minister - Delegation of authority - Non-delegable matters - S. 244(4) of the Income Tax Act 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 Court of Appeal, 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 Court of Appeal held that knowledge and opinion of the Minister's officers and employees was not that of Minister.

Crown - Topic 703

Authority of Minister - Delegation of authority - Delegable matters - S. 244(4) of the Income Tax Act 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 prosecution - S. 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 Court of Appeal held that the Minister could delegate the power to sign the certificate.

Criminal Law - Topic 253

Abuse of process - Oppressive or other conduct of 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 - How ever, 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 Court of Appeal refused to quash the informations and held that delay in initiating a prosecution which is not barred by a limitation period does not constitute an abuse of process - See paragraph 30.

Evidence - Topic 4238

Witnesses - Privilege - Lawyer-client communications - Documents prepared in contemplation of litigation - An investigator of 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 - The Alberta Court of Appeal held that the report was a privileged communication - See paragraphs 31 to 36 - The Alberta Court of Appeal referred to four conditions necessary to establish a claim of privilege between "persons standing in a given relation" - See paragraph 33.

Words and Phrases

Conclusive evidence - The Alberta Court of Appeal discussed the meaning of the words "conclusive evidence" as found in s. 244(4) of the Federal Income Tax Act, S.C. 1970-71-72, c. 63 - See paragraphs 19 to 27.

Cases Noticed:

C.P.W. Valve & Instrument Ltd. v. Scott and Vanderheyden, 8 A.R. 451, refd to. [para. 20].

Peel's Case, [1867] 2 Ch. App. 674, refd to. [para. 20].

Oakes v. Turquand et al. (1867), L.R. 2 E & I App. 325, refd to. [para. 20].

In re Laxon & Co., [1892] 3 Ch. D. 555, refd to. [para. 21].

Kerr v. John Mottram Ltd., [1940] 1 Ch. D. 657, refd to. [para. 21].

Letain v. Conwest Exploration Co. Ltd., [1961] S.C.R. 98, refd to. [para. 21].

Harvey Fee and Affiliated Offices Ltd. v. M.J. Bradshaw, Bud Cullen et al. (1976), 76 D.T.C. 6279, refd to. [para. 24].

Orysiuk v. The Queen, 6 A.R. 548; [1977] 6 W.W.R. 410, refd to. [para. 29].

Rourke v. The Queen, 16 N.R. 181; [1977] 5 W.W.R. 487, refd to. [para. 29].

Strass v. Goldsack, [1975] 6 W.W.R. 155, refd to. [para. 33].

Slavutych v. Baker, [1975] 4 W.W.R. 620, refd to. [para. 33].

Statutes Noticed:

Income Tax Act, S.C. 1970-71-72, c. 63, sect. 244(4) [para. 7].

Counsel:

J.E. Redmond, Q.C., for the appellant;

W.J. Major, Q.C., for the respondents.

This appeal was heard by McDERMID, CLEMENT and LIEBERMAN, JJ.A., of the Appellate Division of the Alberta Supreme Court.

The judgment of the Alberta Court of Appeal was delivered at Calgary, Alberta, on November 29, 1978 and the following opinions were filed:

LIEBERMAN, J.A. - see paragraphs 1 to 36.

McDERMID, J.A. - see paragraph 37.

CLEMENT, J.A., concurred with LIEBERMAN, J.A.