Griffiths, J [ORALLY]:—The applicant seeks an order of prohibition prohibiting His Honour Judge Lampkin or any other Provincial Court judge from hearing charges against the applicant. The ground on which such prohibition is sought is that the charges against the applicant are prescribed and beyond the statutory limitation period.
The applicant stands charged with four counts of filing false or deceptive income tax returns for the years 1974, 1975, 1976 and 1977, contrary to paragraph 239(1)(a) of the Income Tax Act, RSC 1952, c 148.
The information came before Provincial Court Judge Lampkin at Toronto on February 6, 1984. The applicant was arraigned on the four counts and the Crown elected to proceed summarily. The applicant declined to enter a plea, but moved to quash the information on the ground that it was not laid within the limitation provided by subsection 244(4) of the Income Tax Act. That subsection reads as follows:
(4) Limitation of prosecutions. — 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 date 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.
The information here was sworn on May 6, 1983 and admittedly was beyond the five-year limitation period provided in subsection 244(4). The Crown, however, tendered the certificate of P W Shoobert, Director of Taxation of the Toronto District Office, issued pursuant to subsection 244(4) certifying that the date on which sufficient evidence in the opinion of the Minister sufficient to justify the prosecution of the applicant for the offences before the Court, was the 11th day of June, 1982; a day less than one year prior to the laying of the information.
By Regulation 900(2)(b) and 900(5) the Director of Taxation may exercise the powers and perform the duties of the Minister under subsection 244(4). The certificate was validly issued here by Mr Shoobert and had the force and effect of a Minister’s certificate.
Before His Honour Judge Lampkin, the applicant objected to the admissibility of the certificate on two grounds:
(1) that there was evidence available to the Minister sufficient to justify the prosecution on three occasions, two of which were long before June 11, 1982 and therefore the certificate was false and fraudulent. Counsel for the applicant contended that evidence could be adduced to show that the Minister had information brought to his attention years earlier that constituted reasonable and probable cause for prosecution and therefore the certificate issued pursuant to subsection 244(4) contained a false opinion and should not be admitted into evidence;
(2) that subsection 244(4) of the Income Tax Act is unconstitutional in so far as it deems the certificate of the Minister “conclusive evidence” and offends section 7 and paragraph 11(d) of the Charter.
The learned Provincial Court Judge was persuaded by the applicant to go behind the Minister’s certificate on the basis that fraud was alleged and to hear viva voce evidence in that respect. A fairly lengthy hearing followed in which the applicant and the respondent Crown each called witnesses to testify on the issues of the allegations of fraud and the date on which the Minister had evidence sufficient to justify the prosecution of the applicant.
His Honour Judge Lampkin, in a very thorough and carefully reasoned analysis of the evidence, found as a fact that the date on which there was evidence to justify the prosecution and the issuance of the certificate by the Minister was June 11, 1982 and that the certificate was not fraudulently issued. The learned Judge dismissed the application to quash the information finding it unnecessary to consider whether subsection 244(4) was rendered inoperative by the provisions of the Canadian Charter. As I read his reasons, it is evident that having concluded on the evidence that the Minister’s certificate had accurately stated the facts, there was no need to consider the statutory provision deeming that certificate to be conclusive evidence of the facts.
Principally, the same grounds were raised by the applicant on this hearing as a basis to issue an order of prohibition. I start with the proposition that prohibition, a remedy provided by way of prerogative writ, is not, in any sense, a substitute for an appeal. A superior court will only interfere to quash the decision of an inferior court on grounds of excess or want of jurisdiction; Re Martin Simard and Desjardins and The Queen (1977), 41 CCC (2d) 308 (Ont CA) affirmed 41 CCC (2d) 342 (SCC).
Counsel for the applicant relied on the authority of Viger Co Ltd v Cloutier and Leroux, [1947] Que KB 120 for the proposition, that where the charge against the accused is prescribed by law, the lower court has no jurisdiction and prohibition against that court proceeding on the charge will lie. I agree with the proposition that where on the face of it, the information or indictment is clearly out of time, then the Provincial Court Judge cannot give himself jurisdiction beyond deciding any preliminary point of law that may arise. But here the applicant recognized the jurisdiction of the Provincial Court Judge to deal with what was essentially a question of fact and invited the Judge to embark upon an inquiry as to the issue of fraud and the propriety generally of the issuance of the Minister’s certificate pursuant to subsection 244(4).
Counsel for the applicant submitted to the Provincial Court Judge that on the evidence established there were three earlier dates before June 11, 1982 when the Minister should be considered to have had knowledge of the facts sufficient to warrant a prosecution. The Trial Judge carefully reviewed that evidence and found against the applicant’s contention on the three earlier dates. Those findings of fact are not now attacked as being unsupported by the evidence. Indeed those findings appear to be completely consistent with the evidence.
I see no jurisdiction in this Court to interfere with the decision of the Trial Judge by way of prerogative writ in the circumstances. Even if I had concluded that this Court had authority to exercise a supervisory jurisdiction over the decision and proceedings in the lower court, I would not interfere in the circumstances of this case. Subsection 244(4) of the Income Tax Act is clear and unambiguous in providing that in cases proceeding on summary conviction there is an alternative one-year prescription from the day on which evidence sufficient to justify a prosecution comes to the Minister’s knowledge. The section leaves it entirely in the hands of the Minister to state when in his “opinion” sufficient information was brought to his knowledge to justify prosecution. His opinion is in no way limited or fettered by the words of this section. There is no specific requirement that he have “reasonable and probable cause” for the prosecution.
In Fee et al v Bradshaw et al (1982), 68 CCC (2d) 425, the Supreme Court of Canada held that the Minister under subsection 244(4) is not exercising a discre- tionary power or making an administrative decision in issuing a certificate. As Mr Justice Chouinard delivering the reasons of the Court said at 432:
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.’’
There is, in my opinion, no good reason to hold in this case in the absence of fraud, that the certificate of the Minister should not be admitted in evidence on the issue of the limitation period.
As to the second ground advanced by the applicant that subsection 244(4) offended the Charter provisions, it is evident as I have indicated earlier that His Honour Judge Lampkin concluded that it was unnecessary to consider that argument because he had permitted the applicant to fully examine the background facts leading up to the Minister’s certificate and had required the Minister to prove that the information contained in the certificate was accurate. I agree with his approach in this respect. As well, it is my view that the conclusivity feature of section 244 does not render it inoperative under the provisions of section 7 or subsection 11(d) of the Charter. The section is procedural only for the narrow purpose of establishing the limitation period. The section in no way affects the substantive offence with which the accused is charged. It in no way alters the burden of proof on the Crown or affects the presumption of innocence of the accused.
I conclude that the section is constitutionally sound. In the circumstances, the application will be dismissed.