Barnett, Prov J:—Donald Brecknock is charged with failing to file his 1974 income tax return following a demand made December 23, 1975 pursuant to subsection 150(2) of the Income Tax Act.
When the matter came on for trial on April 23, 1976, the Crown did not call any viva voce evidence. Instead, as is usual in these matters, the Crown sought to prove its case by affidavit evidence relying upon subsections 244(5) and (7) of the Act.
The affidavit of Ms M Selvage was filed as Exhibit 1. She swears that she is an officer of the Department of National Revenue, Taxation, and in charge of certain records in the Department’s Vancouver office. After referring to the demand in question (which was admittedly made and received by Mr Brecknock), Ms Selvage swears:
4. That after careful examination and search of the appropriate records mentioned in paragraph 1 above, I have been unable to find in this particular case that the said return or information by statement or answer required and demanded has been made and filed or provided, up to and including the 26th day of February, 1976 by the said Donald Brecknock.
After this affidavit was submitted in evidence, defence counsel, Mr Messner, applied for an order requiring that Ms Selvage attend in Court to be cross-examined upon her affidavit.
Following argument upon that application, I ruled on April 28, 1976 that although there is no specific provision for the making of such an order to be found in the Income Tax Act, such an order could be made in a proper case, and that this was a proper case.
Ms Selvage attended in Court on June 8, 1976. When she was asked to describe how she had examined and searched the appropriate records, she answered that she had not done this work herself at all. It had been done by members of her staff, and they had reported upon the matter to her. That is apparently the invariable procedure in these cases.
I do not suggest that Ms Selvage consciously made a false affidavit. But the fact remains that the material portion of her affidavit is false. She swears she did something which, in fact, she did not do. The only
evidence she can give upon the matter is, in truth, hearsay. Subsection 244(7) of the Income Tax Act authorizes the reception of affidavit evidence in these cases. It does not authorize the deponent of such an affidavit to swear to matters which are not within his or her personal knowledge. But that, in fact, is what Ms Selvage did here, although the form concealed the fact.
it is inexcusable that the persons swearing such affidavits are apparently not adequately instructed concerning the solemn nature of an affidavit. I have commented upon this subject previously. See Regina v Worrell; Regina v Chilcotin Taxi Ltd, [1975] WWD 93.
The charge against Mr Brecknock is dismissed.