Re Shulman and the Queen,

• Date: 09 January 1975
• Court: Court of Appeal (Canada)

Canada, British Columbia Court of Appeal.

(Maclean, Robertson and McIntyre JJ.A.)

Re Shulman and The Queen

JURISDICTION

Jurisdiction — In general — Territorial jurisdiction — Territorial limits of jurisdiction — Power to make laws having extraterritorial operation — Service of summons in criminal proceedings — Service in foreign State — Whether court can assume jurisdiction over person thus served — The law of Canada

Summary: The facts:—Shulman was charged with offences alleged to have been committed by him in Vancouver. The summons was served on him in Australia. He contended that the service of the summons outside Canada was not authorized and that the Court had no jurisdiction to proceed. There was no statutory provision authorizing such service outside Canada. The Court of first instance acceded to Shulman's request for a writ of prohibition to prohibit the Provincial Court from hearing the charges. The Crown appealed.

Held:—In the absence of statutory authorization a summons could not property be served on a person outside Canada and the Court had no jurisdiction to proceed, even though it may have had jurisdiction over the alleged offence itself.

The following is the text of the judgment of the Court:

Robertson, J.A.:—An information having been laid, a Justice of the Peace in and for the Province of British Columbia issued a summons against the respondent. It set out in seven counts offences alleged to have been committed at Vancouver, British Columbia in each of the years 1962 to 1968 respectively against s. 132(1) (a) of the Income Tax Act, R.S.C. 1952, c. 148 [am. 1970–71–72, c. 63], as it was in those years (‘the Act’), which reads:

132(1) Every person who has

• (a) made, or participated in, assented to or acquiesced in the making of, false or deceptive statements in a return, certificate, statement or answer filed or made as required by or under this Act or a regulation,

. . . . .

is guilty of an offence, and, in addition to any penalty otherwise provided, is liable on summary conviction to …

The summons was addressed to ‘Isaac Shulman, formerly of 1128 West 47 Avenue, Vancouver, British Columbia, and presently of Sydney, New South Wales, Australia’. It required him to appear at the Provincial Courts in Vancouver at 10 a.m. on October 16, 1973. The summons was served on the respondent personally in Sydney on September 3, 1973, by a constable of the R.C.M.P., being a peace officer required by s. 455.5 [enacted R.S.C. 1970, c. 2 (2nd Supp.), s. 5] of the Criminal Code (‘the Code’) to serve summonses. Upon the return of the summons in the Provincial Court counsel for the Crown appeared, but the respondent did not, nor did anyone on his behalf. The Crown then asked, under this provision of the Criminal Code

738(3) Where a defendant to whom an appearance notice that has been confirmed by a justice under section 455.4 has been issued or who has been served with a summons does not appear at the time and place appointed for the trial and the issue of the appearance notice or service of the summons within a reasonable time before the appearance was required is proved, or where a defendant does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1), the summary conviction court

• (a) may proceed ex parte to hear and determine the proceedings in the absence of the defendant as fully and effectually as if the defendant had appeared,

that the Court proceed ex parte to hear and determine the proceeding's in the absence of the respondent. The Judge acceded to the request and the matter was adjourned to a later date. The respondent then applied for a writ of prohibition to prohibit the Provincial Court from hearing and determining the charges, on the ground that the service of the...