WHITTAKER, J.:—The Crown has issued a subpoena requiring the Director of Taxation of the Vancouver district office of the Taxation Division of the Department of National Revenue to give evidence in this case and to produce the income tax returns filed by the accused for the years 1944 to 1950 inclusive.
The Minister of National Revenue has filed an affidavit objecting both to the production of the documents and to the giving of oral evidence on the general ground that the production of the documents and the giving of the evidence would be prejudicial to the public interest.
I have had the benefit of argument by counsel engaged by the Minister and by Crown Counsel engaged in this ease.
Thus we have the Crown (Provincial) contending that the proper administration of justice requires the production of the documents, and the Crown (Dominion) through the Minister of National Revenue contending that the public interest demands that production be withheld.
The Minister’s claim of privilege is based on Section 81 of the Income War Tax Act, R.S.C. 1927, ce. 97, and Section 121 of the Income Tax Act, 1948, c. 52, and also, I gather, on authorities apart from statute.
Said Section 81 provides:
“81. No person employed in the service of His Majesty shall communicate or allow to be communicated to any person not legally entitled thereto, any information obtained under the provisions of this Act, or allow any such person to inspect or have access to any written statement furnished under the provisions of this Act.
“2. Any person violating any of the provisions of this section shall be liable on summary conviction to a penalty not exceeding two hundred dollars.’’
Section 121 provides:
“Every person who, while employed in the service of His Majesty, has communicated or allowed to be communicated to a person not legally entitled thereto any information obtained under this Act or has allowed any such person to inspect or have access to any written statement furnished under this Act is guilty of an offence and liable on summary conviction to a fine not exceeding $200.’’
There have been many cases in which the courts have, in civil suits between private parties, refused to order production of documents in the custody of a public official on the ground that disclosure would be prejudicial to the public welfare.
The exigencies of this long and complicated trial have made it impossible for me to read all those cases, but in general I think it may be said that the effect of them is that if the production would be injurious to the public service the general public interest must be considered paramount to the individual interest of a suitor in a court of justice. It was so stated by Pollock, C.B. in Beatson v. Skene (1860), 5 H. & N. 838, at 852; 157 E.R. 1415, at 1421. Also in Duncan v. Cammell Laird & Co. Ltd., [1942] A.C, 624; 111 L.J.K.B. 406, Viscount Simon, L.C., said at 410:
‘‘There is thus express authority in this House that a Court of law ought to uphold an objection, taken by a public department called on to produce documents in a suit between private citizens, that on grounds of publie policy the documents should not be produced.’’
Viscount Simon, L.C., later in his judgment, is careful to say that the judgment of the House is limited to civil actions.
In Weber v. Pawlik [[1952] C.T.C. 32], a civil suit between private parties, the learned Chief Justice of this Court refused to order production of income tax returns, the Minister having filed an objection, and was sustained by the Court of Appeal, O’Halloran, J.A., dissenting. Robertson, J.A., stated that there might be other cases where the minister would not have adequate justification to object to production.
This is not a suit between private citizens. It is a criminal trial, and it seems strange that there should be this conflict between two branches of government, one charged with the collection of revenue and the other with the administration of justice in criminal matters.
I have been referred to only one criminal case in which this question arose. In Rex v. Ship (1949), 8 C.R. 26; 95 C.C.C. 143 (Que.) the accused was charged with keeping a common gaming house. The Crown put in evidence income tax returns filed by the accused. The accused was convicted. He appealed, one of the grounds of appeal being that the returns were improperly admitted in evidence because of Section 81 of the Income War Tax Act. The Minister had not objected to the production of the returns, and on that ground Mr. Owen seeks to distinguish the case from this. It seems clear, however, from the reasons for judgment that the decision would have been the same even if the Minister had objected. The Court of King’s Bench, Appeal Side, ruled that the returns were properly admitted. Barclay, J., said at p. 155 :
“It would be a curious position to take that when the Crown obtains knowledge through returns of the commission of some crime not connected with the Act, it should be prohibited from using that information against the perpetrator of the crime. I am of the opinion that when evidence contained in the tax return is pertinent as evidence on any criminal charge, the Magistrate before whom that charge is being tried is a person legally entitled to the information. ’ ’
I am in respectful agreement with that.
I rule that the returns must be produced and, if relevant and otherwise admissible, may be given in evidence.