Hughes, J.:—The respondents were charged jointly on December 3, 1986 with one count of unlawfully evading the payment of income tax and three counts of unlawfully making false or deceptive statements in Print Three Inc’s income tax returns, contrary to paragraphs 239(1)(d) and 239(1)(a), respectively. The respondent Benquesus was similarly charged with respect to his own returns. On April 8, 1987, the Attorney General of Canada elected to proceed by way of summary conviction these charges and trial was fixed for November 23 of the same year in the Provincial Court at Toronto.
In the meantime on November 4, R. Lewin, J.P. on the application of the respondents issued a subpoena ad testificandum to the Director of Taxation at Toronto, James R. Giles, who moves before me to quash it because of the combined effect of subsection 626(1) of the Criminal Code and subsection 244(4) of the Income Tax Act, S.C. 1970-71-72, c. 63. The former section of the Criminal Code reads as follows:
s. 626(1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence.
and the latter section of the Income Tax Act:
s. 244(4) An information or complaint under the provisions of the Criminal Code relating to summary convictions, in respect of an offence under this Act, may be laid or made on or before a day 5 years from the time when the matter of the information or complaint arose or within one year from the day on which evi- dence, sufficient in the opinion of the Minister to justify a prosecution for the offence, came to his knowledge, and the Minister's certificate as to the day on which such evidence came to his knowledge is conclusive evidence thereof.
The respondents in proper form have raised a constitutional issue as to the validity of subsection 244(4) in light of sections 7, 11(a) and 15 of the Charter of Rights and Freedoms. I had no difficulty in dismissing this on the ground that it should be raised at trial and Mr. Du Pont was given leave to do so. I also dismissed the motion to quash because trial was set so soon after the hearing before me and undertook to provide short reasons in dye course for doing so.
It has been held that subsection 244(4) is conclusive as to the fact of the Minister's knowledge: see Fee et al. v. Bradshaw et al., [1982] 1 S.C.R. 609; [1982] C.T.C. 201; 68 C.C.C. (2d) 426, a judgment of the Supreme Court of Canada and James v. The Queen, [1984] C.T.C. 672; 84 D.T.C. 6570, a judgment of Griffiths, J. These authorities do not deal with the quashing of a subpoena and I am reluctant to prevent enquiry which might be directed to relevant matters other than the conclusiveness of the Minister's certificate. It is indeed arguable that Mr. Giles’ evidence could shed some light upon the operation of a section which appears to deprive income tax debtors of the customary period of limitation of actions enjoyed by other debtors similarly situated, and assist a court in the application of section 15 of the Charter not considered in James v. The Queen, supra.
The respondents will have their cost of the motion to quash.
Motion denied.