MACFARLANE, J.:—The defendant Bourassa was charged in the Court below with failing to file an income tax return pursuant to a Demand made upon him under Section 126(2) of the Income Tax Act of Canada. He was acquitted of this offence, which was brought under Section 131(2) of the Income Tax Act.
In the Stated Case which is before me, the learned magistrate has posed this question :
Was I correct in holding that pursuant to Section 126(6) of the Income Tax Act the accused was not personally required to do that demanded upon or required from him of completing the income tax returns of a corporation of which he was a director and the principal officer since he did not have the physical and mental ability to personally do that demanded upon or required from him.
The magistrate has found as a fact, in paragraph 6 of the Stated Case:
That Mr. Bourassa personally was physically and mentally unable to do those things which were demanded upon him by the letter of demand of August 7, 1967 by reason of his lack of ability to read and write.
In paragraph 5 of the facts stated, the magistrate noted that Mr. Bourassa has had very little schooling, but he also noted that Mr. Bourassa, in the past, had relied upon other persons to handle his correspondence and to handle his bookkeeping and that his bookkeeper had become ill and that the work in connection with the bookkeeping of the company had piled up.
The clear question which I am asked to decide is whether the defendant Bourassa has a good defence under Section 126(6) of the Income Tax Act by reason of the words therein, ‘‘ . . . unless he is unable to do so.’’ These words are very wide and seem to be unrestricted in the statute.
It is not for me to decide the facts but to decide whether or not there has been an error of law. The magistrate has heard the evidence and he has decided as a matter of fact that the defendant was unable to comply with this demand. I have to find that there was some evidence upon which that finding could be made and that is as far as I am permitted to go in an application by way of Stated Case.
I cannot find that there is any error in law.
I would not want my judgment, however, to be interpreted as an invitation to persons to raise a defence based on their inability to deal with either of the official languages, and I think it would be only in most exceptional and extraordinary circumstances that a defence such as this would succeed. Therefore, I want to make it clear that I am establishing no precedent here by this judgment as to what, in any given case, will be found to be as a fact a defence falling within the words, ‘‘unable to do so,” as used in the Act.
Accordingly, I would dismiss the appeal.