Sherstobitoff, J.A.: — The major issue on this appeal is the validity of a certificate under subsection 244(4) of the Income Tax Act, S.C. 1970-71-72, c. 63, certifying the day on which evidence, sufficient in the opinion of the Minister of National Revenue to justify a prosecution under the Act, came to his knowledge. The date [of] knowledge, in this case, was not that of the Minister personally, but that of one of his officers, a Director—Taxation.
In order to understand the facts, one must first consider the relevant sections of the Income Tax Act, the regulations made thereunder, and the Interpretation Act, R.S.C. 1970, c. 1-23.
Income Tax Act
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 evidence, 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.
220.(1) The Minister shall administer and enforce this Act and control and supervise all persons employed to carry out or enforce this Act and the Deputy Minister of National Revenue for Taxation may exercise all the powers and perform the duties of the Minister under this Act.
221. (1) The Governor in Council may make regulations
(f) authorizing a designated officer or class of officers to exercise powers or perform duties of the Minister under this Act,
Regulations under the Income Tax Act
900. (2) An official holding a position of Director-Taxation in a District Office of the Department of National Revenue, Taxation, may exercise the powers and perform the duties of the Minister under
(b) subsection . . . 244(4) of the Act.
Interpretation Act
23.(2) Words directing or empowering a Minister of the Crown to do an act or thing, or otherwise applying to him by his name of office, include a Minister acting for him, or, if the office is vacant, a Minister designated to act in the office by or under the authority of an order in council, and also his successors in the office, and his or their deputy, but nothing in this subsection shall be construed to authorize a deputy to exercise any authority conferred upon a Minister to make a regulation as defined in the Regulations Act.
The information in this case contained 23 counts charging the four appellants with various violations of the Income Tax Act at various times during a period exceeding six years and varying from the earliest date of January 31, 1977, to the latest date of April 29, 1983. The information was sworn before a Justice of the Peace on the 17th day of December of an unspecified year.
A summons, dated December 21, 1987, was issued by the Justice of the Peace with respect to each appellant and subsequently served. The various summonses were returnable January 28, 1988, at which time all of the appellants appeared by counsel. The Crown elected to proceed by way of summary conviction. At this point, before any plea was entered, and before any certificate under subsection 244(4) of the Income Tax Act was filed, the appellants moved to quash the information on the ground that the omission of the year during which the information was sworn rendered it a nullity and furthermore, beyond the five year limitation period specified in subsection 244(4) of the Income Tax Act.
Archambault, Prov. Ct. J. held, in a judgment dated May 17, 1988, that, as the limitation period for prosecution was five years and the jurat failed to disclose that the information was sworn within that period with respect to counts 2 to 16 inclusive and 19 to 22 inclusive, he was obliged, in the absence of a certificate extending the limitation period, to rule that the information was invalid in so far as those counts were concerned. As the information was obviously sworn prior to January 28, 1988, the time limitation period was not spent with regard to at least parts of the offences alleged in counts 1, 17, 18 and 23. He relied largely on R. v. Government of Saskatchewan (1983), 20 Sask. R. 213 (Sask. C.A.).
The Crown then tendered in evidence a certificate of the Minister issued under subsection 244(4) of the Income Tax Act in order to extend the time for prosecution of those parts of counts 1, 17 and 18 which fell outside the five-year limitation period. The appellants objected to the admission of the certificate into evidence on the basis of an agreed statement of facts which disclosed that the Minister of National Revenue did not personally possess any knowledge of the files or material with respect to the appellants. There was also viva voce evidence as to the facts and procedures used leading up to the issue of the certificate. The certificate was issued by a Director- Taxation and the knowledge and the opinion referred to in the certificate were not those of the Minister, but of the Director-Taxation who issued the certificate.
The form of the certificate was as follows:
Pursuant to subsection 244(4) of The Income Tax Act, R.S.C. 1952 Chapter 148, I, S.W. Cochrane, Director-Taxation, Saskatoon District Office of the Department of National Revenue, Taxation, do hereby certify that sufficient evidence in the opinion of the Minister to justify the prosecution of Precision Service and Engineering Ltd., P.S. & E. Contractors Ltd. Arne Frederik Petersen, and Sergei Doo- chenko of Prince Albert, in the Province of Saskatchewan, for the offences set forth in the form annexed as Exhibit A, came to his knowledge on the 11th day of March, 1987.
Given under my hand at the City of Saskatoon in the Province of Saskatchewan this 2 day of February, 1988.
'S.W. Cochrane'
Director-Taxation, Saskatoon District Office
of the Department of National Revenue,
Taxation
On May 24, 1988 Archambault, Prov. Ct. J. issued a judgment finding, with some misgivings, that the Director-Taxation had the requisite power and authority to prepare and issue the certificate under subsection 244(4) of the Act and that any knowledge possessed by him and required for this purpose must be deemed to be that of the Minister. He therefore ruled the certificate to be admissible.
The appellants then applied to the Court of Queen's Bench for an order of prohibition and certiorari in aid thereof directed to the Provincial Court judge to prohibit him from proceeding with the trial of counts 1, 12 and 18. (The numbers of the counts do not correspond throughout the judgments. The parties advise us that this need not concern us —they are errors in numbering.) The Attorney General of Canada simultaneously applied to the Queen's Bench for an order of mandamus compelling the Provincial Court judge to hear and determine counts 2 through 11 inclusive, 13 to 16 inclusive and 19 to 22 inclusive. Milliken, J. granted fiats on the applications, first, dismissing the application of the appellants for prohibition, and second, granting the order of mandamus compelling the Provincial Court judge to proceed with all of the other counts. He found the certificate under subsection 244(4) to be valid and admissible in evidence, and he found that the Provincial Court judge should not have dealt with the limitation period without first giving the Crown the opportunity to introduce evidence.
Neither side objected to the procedure used, that is, applications for prerogative writs as opposed to appeals. This judgment is not to be taken as approbation of the procedure used.
One other preliminary point warrants mention. Subsection 244(4) provides that the certificate is conclusive evidence of the day on which the evidence came to the Minister's knowledge. That raises the issue of whether we can go behind the certificate. The "conclusivity" provision applies only to the contents of the certificate as to date, not to the validity of the certificate itself. The provision does not preclude an accused from showing that the purported certificate is not a “certificate” within the meaning of subsection 244(4) by reason of its being founded upon not the Minister's personal "opinion" and "knowledge" as subsection 244(4) requires it to be, but on the opinion and knowledge of some other person, namely one of his officers.
The issue of whether or not a certificate under subsection 244(4) was required to refer to the knowledge of the Minister personally, rather than to an authorized officer of the department, was first considered at the Court of Appeal level by the Quebec Court of Appeal in Procureur General du Canada v. Marcotte, [1975] C.A. 570. The Court there considered a certificate issued by an Assistant Deputy Minister of National Revenue-Taxation which certified that "on March 14, 1972 sufficient evidence came to my knowledge to justify the prosecution of Maurice Marcotte . . .”. Mayrand, J. ruled the certificate to be inadmissible. He said as follows:
[Translation]
This knowledge acquired by the Minister, the starting point for the one-year limitation period, is a fact and not a “power” or "duty"; the knowledge acquired by the Deputy Minister or one of the Assistant Deputy Ministers cannot therefore be substituted for it. As the judge of the Superior Court wrote:
It would be inconceivable that evidence that was sufficient in the opinion of the Assistant Deputy Minister having come to his knowledge and he having done nothing for more than one year, the same evidence could come freshly to the attention of the Deputy Minister or the Minister, and they could arrive at the same opinion and cause a limitation period that had already run twice (or three times) to be restarted a second (or even third) time.
In certifying "that on March 14, 1972, sufficient evidence came to my knowledge to justify the prosecution”, the Assistant Deputy Minister did not certify that on March 14, 1972, sufficient evidence came to the knowledge of the Minister to justify the prosecution".
The Crown says that this case is distinguishable because the certificate here refers not to the knowledge of the issuer, but refers to the knowledge of the Minister. We reject that argument. Although Mayrand, J. in his judgment did suggest that different wording in the certificate might have changed the result, the substance of the judgment is unequivocal. The knowledge must be the knowledge of the Minister personally and the knowledge of someone else cannot be substituted for it. The use of different words in the certificate cannot remedy the inherent defect of a lack of personal knowledge on the part of the Minister.
The matter was next considered at the appellate level by the Supreme Court of Alberta, Appellate Division in Medicine Hat Greenhouses Limited and German v. The Queen, [1979] 1 W.W.R. 296; 45 C.C.C. (2d) 257. Lieberman, J.A., at page 306 (C.C.C. 36), quotes with approval the finding of the judge in the court below ([1977] 5 W.W.R. 532 at 545; 37 C.C.C. (2d) 287 at 300):
In my opinion, however, the acquisition of knowledge by the minister as contemplated by s. 244(4) is neither a power nor a duty but a fact, and consequently is not delegated. To say in relation to the minister that evidence, as defined, came to his knowledge on a given day is a statement of fact. In the sense used in ss. 220 and 221 of the Act and in Reg. 900, a power is the ability of authority or capacity to act and a duty is that which one is bound by legal obligation to do. The minister's acquisition of knowledge is not within either definition and is not therefore delegated.
Ironically, the judgment in the Medicine Hat case was in favour of the Crown. In that case the Minister did have personal knowledge of the case, largely as a result of demands on the part of the taxpayer. As a result, the limitation period did not begin to run until the Minister personally acquired the knowledge. The appellants had claimed that the Department had had all of the necessary information for a long time prior to the date on which the Minister personally acquired knowledge and that the time should have run from the point when the officers of the Department, as delegates of the Minister, first acquired the knowledge. They invoked the principle of abuse of process. The Alberta Court of Appeal rejected that argument.
Support for the proposition that the acquisition of knowledge by the Minister and formulation of the opinion under subsection 244(4) is a matter of fact as opposed to the exercise of a power or discharge of a duty may be found in the statement of Chouinard, J. in Fee v. Bradshaw, [1982] 1 S.C.R. 608 at 617; [1982] C.T.C. 201 at 206:
With regard to the first alternative, the statement as to the day on which the evidence came to the Minister's knowledge cannot in any way be likened, in my opinion, to an administrative decision or the exercise of a discretionary power. The Minister is not taking a decision and he is not exercising a discretionary power. So far as he is concerned he is testifying as to a fact. He does not have to take any position favouring one course of conduct over another. He does not have to exercise any discretion in determining when evidence came to his knowledge. It is a fact. He cannot alter it to suit himself. As counsel for the respondents observed, [TRANSLATION] "He is simply stating a fact.”
The reasoning in both Marcotte and Medicine Hat Greenhouses was adopted and affirmed by the Quebec Court of Appeal in a recent judgment, Procureur General du Canada v. Les Habitations Périgord Inc., [1988] 2 C.T.C. 64; 88 D.T.C. 6267.
We agree with the reasoning on this point in the three appeal court decisions.
Counsel for the Crown argued that these judgments did not properly take into account the principles laid down by the Supreme Court of Canada in R. v. Harrison, [1977] 1 S.C.R. 238 at 245, [1976] 3 W.W.R. 536 at 542:
. . . Although there is a general rule of construction in law that a person endowed with a discretionary power should exercise it personally (delegatus non potest delegare) that rule can be displaced by the language, scope or object of a particular administrative scheme. A power to delegate is often implicit in a scheme empowering a Minister to act. As Professor Willis remarked in "Delegatus Non Potest Delegare", (1943), 21 Can. Bar Rev. 257 at p. 264:
. . . in their application of the maxim delegatus non potest delegare to modern governmental agencies the Courts have in most cases preferred to depart from the literal construction of the words of the statute which would require them to read in the word “personally” and to adopt such a construction as will best accord with the facts of modern government which, being carried on in theory by elected representatives but in practice by civil servants or local government officers, undoubtedly requires them to read in the words "or any person authorized by it”.
See also S.A. DeSmith, Judicial Review of Administrative Action, 3d ed., at p. 271. Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his department: Carltona, Ltd. v. Commissioners of Works. The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds of the respective grants of authority, in the discharge of ministerial responsibilities. Any other approach would but lead to administrative chaos and inefficiency . . .
Along the same vein, Crown counsel referred to and relied upon Carltona, Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.), Lewisham Borough Council v. Roberts, [1949] 1 All E.R. 815 (C.A.), Ahmad v. The Appeal Board, Public Service Commission, [1974] 2 F.C. 644 (Fed. C.A.).
A similar argument was considered and rejected by LeBel, J.A. in Les Habitations Périgord. We agree. First, we are here concerned with interpretation of specific legislative provisions rather than application of general legal principles. Second, the distinction made in Marcotte, Medicine Hat, and Les Habitations Périgord between the fact of acquisition of knowledge on the one hand, and exercise of a power or discharge of a duty on the other hand, operates to remove this case from the application of the principles in Harrison.
Furthermore, application of the principles in Harrison to the acquisition of knowledge under subsection 244(4) of the Income Tax Act would extend to all employees of the Department of National Revenue, Taxation acting within the scope of their authority. The time would start to run from the moment that the first employee of the Department acting within his scope of authority acquired the knowledge necessary to support the opinion that there was sufficient evidence to justify a prosecution. And that is not the date which was certified in this case, nor is it the date which Crown counsel said should be certified.
In addition, there are sound policy reasons for maintaining the interpretation put on subsection 244(4) by the Alberta Court of Appeal and the Quebec Court of Appeal. They are stated by Nichols J.A. in Les Habitations Périgord at page 701 (D.T.C. 6271):
Si le législateur a voulu d'une part accorder à l'autorité publique un moyen efficace de poursuivre ceux qui se rendent coupables de fraude fiscale, il a aussi voulu que le justiciable ne reste pas indéfiniment sous la menace de poursuites.
ll fallait donc fixer un point de départ à cette prescription exceptionnelle. Non pas un point de départ que l'administration pourrait fixer à sa guise mais un point de départ que le justiciable pourrait lui-même connaître avec certitude. Car à quoi servirait une prescription si celui en faveur de qui elle est édictée, ne peut savoir quand elle commence.
Pour fixer ce point de départ il fallait donc se replier sur un fait certain. Le législateur a choisi de l'arrêter au jour où le Ministre, selon qu'en attesterait un certificat juridiquement concluant, aurait acquis la conviction, à sa connaissance, que la preuve est suffisante pour intenter des poursuites.
Si le pouvoir général de délégation permettait aux officiers et fonctionnaires du Ministère d'agir au lieu et place du Ministre, le point de départ de la prescription pourrait varier aux caprices de la conviction personnelle de tous ceux qui sont autorisés par la Loi à agir au nom du Ministre.
Lorsque la loi exprime un pouvoir exceptionnel et lorsqu'il s'agit par surcroît d'une matière de prescription, je ne puis me convaincre qu'il faille, comme le propose l'appelante, recourir à des principes d'interprétation larges et généreux.
[Translation]
While Parliament intended, first, to provide the public authorities with an effective method for prosecuting those who are guilty of tax fraud, it also intended that those subject to this provision not remain indefinitely under threat of prosecution.
It was therefore necessary to determine a starting point for this exceptional limitation period. Not a starting point that the administration could set where it chose, but a starting point that those affected by it could themselves determine with certainty. What would be the purpose of having a limitation period if those in whose favour it was enacted could not know when it commences?
In order to set this starting point, there must be a determined fact to which it refers. Parliament chose to set it at the day when evidence sufficient in the opinion of the Minister to justify a prosecution came to his knowledge, as attested by a legally conclusive certificate.
If the general power of delegation permitted the officers and officials of the Department to act in the place and stead of the Minister, the starting point for the limitation period could vary, at the caprice of the personal determination of everyone who is authorized by the Act to act on behalf of the Minister.
When the Act expresses an exceptional power, and further, when this is a question of a limitation period, I cannot be convinced as the appellant has argued that it is necessary to apply the principles of broad and liberal interpretation.
Finally, if we are wrong in our conclusions above, the certificate in this case does not meet the requirements of subsection 244(4). The certificate simply states that the knowledge of the evidence came to the attention of the Minister on March 11, 1987. It does not say that that date was the first date on which the knowledge came to the attention of the Minister. As noted by LeBel, J.A. in Les Habitations Périgord at page 68 (D.T.C. 6269):
. . . Il aurait fallu identifier le jour où avait lieu une premiere prise de connaissance. Si l'on veut donner a l’article 244 une effet qui assure une certain diligence dans l’exercice des droits du Ministère et le respect de ceux des contribuables, la date de connaissance attestée doit être celle où est acquisé la premiere connaissance. Autrement, des poursuites pourraient être engagées n'importe quand et a l'initiative de n'importe qui.
Le certificat produit ici peut être interprété comme visant l'un des jours où la connaissance aurait pu être acquisé. Cela ne suffit pas: en utilisant le terme “le jour", que l'on atteste qu'il s'agit bien du premier moment auquel cette connaissance du fait a été acquisé.
[Translation]
. . . It was necessary to identify the day on which the information first became known. If section 244 is to be given an effect which will ensure some diligence in the exercise of the Minister's rights and respect of the taxpayers' rights, the date attested in the certificate must be the date on which knowledge was first acquired. Otherwise, prosecutions could be undertaken at any time and at the whim of anyone.
The certificate filed in this case may be interpreted as referring to one of the days on which knowledge was acquired. That is not enough: as the expression "the day” is used, the attestation must be to the first moment when knowledge of the fact was acquired.
Accordingly, the certificate in question does not qualify as a "certificate" within the meaning of subsection 224(4) and is not admissible in evidence.
It is necessary to deal with one other matter raised by the appellants. In his judgment dated May 17, 1988, the Provincial Court judge held as follows:
As the information was obviously sworn prior to January 28th, 1988, the time limitation was not spent with regards to Counts number 1, 17, 18 and 23 (Count 12 was added thereafter), and accordingly the Information is valid insofar as they are concerned. As I understand the ratio in Regina vs. Government of Saskatchewan et al, as long as the Information discloses on its face that the offence was committed within the time limit, the Information is valid and it becomes a matter to be determined on the evidence whether or not this is in fact the case.
The appellants argued that the judge treated these counts as continuing offences, parts of which fell within the five year limitation period set out in subsection 244(4) of the Income Tax Act. They argue that the judge ought to have amended the jurat on the information to read that it was sworn on December 17, 1987 and then applied the five year prescription period by severing those portions of the counts falling outside of that period: Dressier v. Tallman Gravel and Sand Supply Ltd. (1963), 2 C.C.C. 25 (Man. C.A.); R. ex. rel. Hoddinott v. Wooster (1959), 123 C.C.C. 255 (Sask. C.A.); R. v. Slavik (1955), 111 C.C.C. 399.
In our view the Provincial Court judge properly applied Regina v. Government of Saskatchewan (1983), 20 Sask R. 212, a judgment of this Court. On the face of the information the offence may have been committed before the expiration of the limitation period. It then becomes a matter for the trial judge to decide on the evidence whether in fact the offence was out of time. That reasoning applies whether or not one characterizes the offences as "continuing offences" or "global offences" (the appellant's terminology).
The appeal against the order granting mandamus is allowed and the judgment of the Provincial Court dated May 17, 1988 is reinstated. The appeal against the order dismissing the application for prohibition is dismissed. The result is that the Crown may proceed with counts 1, 12, 17, 18 and 23 only in so far as they fall within the five-year limitation period in subsection 244(4) of the Act. The other counts stand dismissed as being out of time.
Appeal allowed in part.