Dorron, J.:—This is an appeal by way of stated case. The stated case follows:
“Case Stated by His Worship H. J. Cumming, Q.C., one of Her Majesty’s Provincial Magistrates in and for the Province of Saskatchewan, under the provisions of Section 734 of the Criminal Code of Canada.
1. Whereas on the 26th day of February, A.D. 1960, an information was laid under oath, before me, by the above named Ronald Louis Lehman, for that Lloyd Benell of the Town of Watrous, Saskatchewan, on the 15th day of December, A:D. 1959, did at the said Town of Watrous, by the 15th day of December, 1959, being a person who paid salary, wages or other remuneration in the month of November, 1959, to officers or employees and who deducted from said salaries, wages or other remuneration, amounts stipulated by the Income Tax Act, R.S.C. 148, as amended and Regulations made thereunder, fail to remit to the Receiver General of Canada the amount deducted, namely One Hundred and Six Dollars and ninety cents ($106.90), thereby contravening Section 47(1) and committing an offence under Section 131(2) of the said Act.
2. On the 22nd day of March, 1960, the said charge was duly heard before me in the presence of both parties, and, after hearing the evidence adduced and the statement of counsel for the Crown, I reserved my decision. On the 21st day of June, 1960, I found the said Lloyd Benell not guilty of the said offence and acquitted him thereof, but at the request of counsel for the Crown I state the following case for the opinion of this Honourable Court :
It was shown before me that the said Lloyd Benell was, at the relevant time, a contractor in the Town of Watrous, Saskatchewan. During the month of November, 1959, the said Lloyd Benell deducted from the wages of his employees the amount of One Hundred and Six Dollars and ninety cents ($106.90) as stipulated by the Income Tax Act, R.S.C. 148, as amended and Regulations made thereunder. This amount was remitted to the Receiver-General of Canada by the said Lloyd Benell on the 12th day of January, 1960, and in addition thereto a late payment penalty of $19.90 was paid by the said Lloyd Benell to the Receiver-General of Canada.
Counsel for the Crown referred me to Section 136(11) of the Income Tax Act. I dismissed the charge and found the accused not guilty on the ground that I had no knowledge of any Regulations made under the Income Tax Act fixing the time within which the amount deducted as aforesaid must be remitted to the Receiver-General of Canada.
Counsel for the Crown desires to question the validity of the said acquittal on the ground that it is erroneous in point of law, the question submitted for the judgment of this Honourable Court being:
Whether I was correct in holding that I had no knowledge of any Regulation made under the Income Tax Act and amend- ments thereto fixing the time for remitting the said amounts deducted to the Receiver-General of Canada in view of the provisions of Section 136(11) of the said Act requiring me to ‘take judicial notice of all regulations made under the Income Pax Act, R.S.C. 148 and amendments thereto.
DATED at the City of Saskatoon, in the Province of Saskatchewan, this 29th day of June, A. D. 1960.
j
Sgd. ‘H. J. Cumming’
H. J. Cumming, Q.C.
Provincial Magistrate,
Saskatoon, Saskatchewan. ’ ’
The pertinent sections of the Act are:
“47. (1) Every person paying •»
(a) salary or wages or other remuneration to an officer or employee, ‘
at any time in a taxation year shall deduct or withhold therefrom such amount as may be prescribed and shall, at such ‘time as may be prescribed, remit that amount to the Receiver General of Canada on account of the payee’s tax for the year under this Part.
131. (2) Every person who has failed to comply with or contravened subsection (1) of section 47, subsection (5) of section 123, section 125 or section 126 is guilty of an offence and, in addition to any penalty otherwise provided is liable on summary conviction to
.~ (a) a fine of not less than $200 and not exceeding $10,000, or
(b) both the fine described in paragraph (a) and imprisonment for a term not exceeding 6 months.
136. (11) Judicial notice shall be taken of all orders or regulations made under this Act without such orders or regulations being specially pleaded or proven.’’ (Italics are mine.)
The question for determination is whether the learned Magistrate should have taken judicial notice of the regulations. Counsel for the applicant admits that he himself was unable to find the regulations in the Court House library at Saskatoon and that he is not in possession of The Canada Gazette in which the regulation in question is published. When required by me he stated that regulation 108 provided that the monies retained should be forwarded to the Receiver General of Canada by the loth of the month next following the deduction and produced to
me a booklet setting out the regulation but it definitely purported not to be official as it was not issued by the Queen’s Printer. His instructions were that the Court must take it upon itself to acquaint itself with such regulation and that it was not for the appellant to produce or prove same. I pointed out to him that I did not require proof of the regulation but that it should be submitted to me for perusal just as a statute or an authority cited is produced for the perusal of the Court. Again he countered that this was against his instructions and that the appellant desired a decision on the point as a test case, and it was for me to find the regulations by whatever means I deemed necessary even by obtaining same from the Income Tax authorities. To me this cavalier manner is most discourteous, not on the part of Mr. Scott but by whoever gave him the instructions. How could a Magistrate not in a Judicial Centre in this Province find the regulations when even in the Court House in the City of Saskatoon these regulations cannot be found in the library? Without the assistance of counsel he is left in doubt.
A number of authorities were cited in support of the appellant’s contention. In Rex v. Fitzgerald, 100 C.C.C. 234, the following excerpt of the judgment fully sets out the facts and the law:
“This is an appeal from an order of dismissal of an information charging that the accused did unlawfully operate on a highway a commercial motor vehicle to wit, a truck having a weight with load of 20,150 lbs., such being in excess of the weight in pounds for which such vehicle is registered and which is shown on the permit issued in respect of such vehicle, namely, 16,000 lbs., contrary to the provisions of s. 3(6) of the regulations made under s. 153 of the Motor Vehicle Act, 1932 (N.S.), c. 6, and amendments thereto.
The reference in the information to the section of the regulations alleged to be contravened or violated is inaccurate but as no objection was raised on that scope either before the Magistrate or on appeal and, in any case, as the trial proceeded on the footing that the vehicle of the accused allegedly carried, on the occasion set out in the information, a greater load than was permitted by the regulations no prejudice was thereby occasioned the accused.
The Magistrate dismissed the information because he thought the relevant regulations were not proved, or in other words that no copy thereof as published by the Royal Gazette was tendered in evidence.
Section 153(1) (a) (am. 1934, c. 54, s. 2) of the Motor Vehicle Act authorizes the Minister of Highways, subject to the approval of the Governor in Council, to make regulations governing the weight of any vehicle or class of vehicle which may be operated on a highway, the weight of the load which may be carried by such vehicle and the combined weight of any such vehicle and the load carried by it and the ascertaining of the weight of such load and of such vehicle.
Subsection (1) (f) provides for prescribing penalties for the violation of such regulations, and s-s. (3) requires that such regulations be published in the ‘Royal Gazette and shall thereupon become effective and have the same force as if enacted by the Act itself.
If there were no legislation or rule of evidence to the contrary it would appear that on the trial of an information under the regulations proof of their publication in the Royal Gazette would be necessary. There is, however, in my opinion, such legislation, embodied in s. 9A of the Evidence Act, R.S.N.S. 1928, c. 225 (enacted 1927, c. 48, s. 1) which is as follows:
‘9A. Notwithstanding anything in this chapter every proclamation and every order made or issued by the Governor General or by the Lieutenant Governor in Council, and every publication thereof in the “Canada Gazette’’ and in the ‘‘ Royal Gazette’’ shall be judicially noticed by all courts, magistrates, justices of the peace, and others.’
I think that a regulation by the Minister, approved by the Lieutenant-Governor in Council would be included in the meaning of ‘every proclamation and every order, made or issued’ in Section 9A, and if this be so, then Section 9A provides that it shall be judicially noticed, and every publication thereof in the Royal Gazette shall likewise be judicially noticed. Judicial notice excludes or obviates proof therefore, evidence. It makes evidence unnecessary. The question raised here is one of evidence.
There is no denial by the accused that there are regulations dealing with the matters here tried or of the fact of publication in the Royal Gazette. The objection is simply that there is no evidence of the regulations, that the Royal Gazette should have been produced and put in evidence. Now Section 9A of the Evidence Act makes it unnecessary in my opinion, as already stated, to produce the Gazette as evidence or to tender any evidence of the regulations. The objection, therefore, of lack of evidence of publication is, I think, untenable.’’
Section 136(11), supra, specially provides that the regulations need not be pleaded or proven. The leading case of Rex v. Peu- gnet, 1 W.W.R., 1911-1912 at 703, sets out succinctly that it is unnecessary to tender or produce (italics are mine) The Gazette as evidence:
“It is also objected that there is no evidence of an extradition treaty with the Republic of France, or that the offences charged, namely the offences of murder and robbery, are extraditable offences. It is not objected that there is no treaty, or that such treaty and the Order-in-Council with reference thereto were not published in The Gazette but the objection is that there was no evidence offered of such treaty, that The Gazette should have been put in as evidence. I am of opinion that, in view of Section 8 of the Extradition Act, the publication of the treaty and of the Order-in-Council with reference thereto in The Gazette is sufficient, and that it is not necessary for the prosecution to tender or produce The Gazette as evidence. It seems to me impossible to give the latter portion of Section 8 an intelligent meaning at all unless it means that the court can take judicial notice of the treaty and of the Order-in-Council without production of The Gazette to the court. I may say further that I am confirmed in that view of the section by the fact that I am unable to find in any reported case in our country that evidence in this respect was ever tendered, or that it was ever called for, or that it was ever held to be necessary.”
I was also referred to Rex v. Wagner, [1931] 2 W.W.R. 650. This was a prosecution under The Game and Fisheries Act of Manitoba. The Act was assented to on April 14, 1930, but its coming into force was deferred until proclaimed by the Lieutenant Governor. It was argued by the defence that it was a necessary part of the Crown’s case to prove that at the material time the Act had been brought into force. The following is an excerpt of the judgment of Robson, J.A.:
“It seems to me to be rather a question of an inquiry by the magistrate at some time or other before he parted with the matter to satisfy himself what the law was rather than of the production by the Crown of evidence of a proclamation as part of its prosecution case. Section 10 of The Manitoba Evidence Act, R.S.M. 1913, ch. 65, provides for proof of proclamations, orders, etc., by the production of The Manitoba Gazette containing them and by other simple means. I do not consider these means as being exclusive. They are merely provided to simplify proof. They do not in my view limit the means by which a judicial officer may officially become acquainted with the law. In the similar case of Marshall v.Wet- tenhall Bros. (1914), V.L.R. 266, A’Beckett, J., at 269, says:
“Section 17 of the Evidence Act, 1890, provides various modes by which a proclamation may be proved, but this does not affect the question of whether proof is necessary when the judicial officer knows the contents of a proclamation independently of proof. Obviously in acting on such knowledge, or supposed knowledge, he does so at the risk of his recollection being at fault; but is he obliged to require proof of that which he thinks he knows? It is not disputed that he could require it if he wished to assure himself. Judges have discretion to require information on some matters which they may, if they think fit, judicially note (italics are mine). See Stephen’s Digest of the Law of Evidence, art. 59, as to whether proclamations such as this may be judicially noticed. Taylor on Evidence, art. 5 of chap. 2, says that the Judges must recognize without proof Royal proclamations, such being Acts of State. Neither this passage nor the other passages in Phipson on Evidence and Steven’s Digest of the Law of Evidence, to which I have been referred, appear to me conclusive on the point. before me. What weighs with me is the manifest intention of the Act under which the proclamation was made, that the proclamation should inform all persons of the state of the law, and the apparent absurdity of refusing to permit a judicial officer, to act on his knowledge of the law so supposed to be made public. I hold that the magistrates were entitled to act on their knowledge of the state of the law without having before them the proclamation which formed part of the law.’
On the day fixed for the coming into force of the law everyone was bound to take notice of it, even the accused, and I respectfully consider that that fundamental rule of law also extended to the magistrate. In Reg. v. Westley (1860), 29 L.J.M.C. 35; 8 Cox C.C. 244, at 250, Pollock, C.B., said: r
“The Court is bound to take notice of all statutes, and we know there is no other statute that could be referred ‘to except the one in question.’
Salmond, Jurisprudence, 6th ed., at 28, says:
‘A judge may know much in fact of which in law he is deemed. ignorant and of which, therefore, he must be. in- _.. formed by evidence legally produced. Conversely he may be ignorant in fact of much that by law he is entitled judicially to notice, and in such a case it is his right and duty to inform (…: himself by such means as seem good to him (italics are mine). The general rule on the matter is that courts of justice know the law, but are ignorant of the facts. The former may and must be judicially noticed, while the latter must be. proved.
And he gives exceptions such as local customs, mercantile customs, private legislation, foreign law and conventional law.
In Mighell v. Johore (Sultan), [1894] 1 Q.B. 149; 63 L.J.Q.B. 593, the trial judge communicated with the foreign Office to get information as to an alleged foreign sovereign for use in a cause and the Court of Appeal held that this was a proper procedure.”
The above authorities leave no doubt that judges are bound to take judicial notice of the law and regulation 108 of, the Income Tax Regulations by virtue of Section 136(11) is the law. The language of the said section is so clear and unequivocal that surely it is quite unnecessary to have it interpreted by way of a test case.
At the risk of being prolix I wish to state the difficulty and waste of time I underwent to find the illusive regulation 108— The Canada Gazette is not in the library at Saskatoon. On.:my return to Regina I found Canada Gazettes galore in the Court House library but was unable to find the regulation in question. Later; on my return to Saskatoon to preside over the regular sittings of the Court, I telephoned Mr. Scott for information as to the year it was published and upon ascertaining that he was not available, I received information from another source in the office with which he had been associated that the regulation appeared in 1954. Again, on my return to Regina, I found the 1954 Gazettes and the consolidated index. I thought my task was finally at an end but unfortunately the volumes containing income tax regulations were missing! Fortunately, I found, but not in the library, Vol. 2, Statutory Orders and Regulations Consolidated, 1955, published by the Queen’s Printer in which that portion of regulation 108 applicable to this appeal is as follows :
“108. (1) Amounts deducted or withheld under the provisions of subsection (1) of Section 47 of the Act shall be paid to the Receiver General of Canada on or before the fifteenth day of the month next succeeding the month in which the employer paid the remuneration.’’
I have set out my endeavours to illustrate the waste of time to which I was subjected in order to satisfy the whim of whoever gave instructions to Mr. Scott. Law enforcement officers should take notice that judges and magistrates in this day and age are extremely busy. In matters of this kind counsel should give every assistance to a judge or magistrate by producing any regulation in question not as evidence or proof of publication but for his perusal. This, in my view, is the procedure which should be followed in order to expedite proceedings.
I must find that the learned Magistrate was wrong in holding that he had no knowledge of any regulation made under the Income Tax Act and amendments thereto fixing the time for remitting the said amounts deducted to the Receiver General of Canada in view of the provisions of Section 136(11) of the said Act requiring him to take judicial notice of all regulations made under the Income Tax Act, R.S.C. 148 and amendments thereto.
The appeal will be allowed. I have no alternative but to impose on the respondent the minimum fine of $200.
As to costs I have no doubt that the experienced, learned Magistrate would have found the respondent guilty had the proper procedure been followed. For that reason there will be no costs imposed on the respondent.
Appeal allowed.