ITA-5319-83
Serge Charron (Petitioner) (Seized debtor)
v.
Claude Dufour (Garnishee)
and
The Queen (Respondent)
Trial Division, Walsh J.-Montreal, February 13
and 24, 1984.
Income tax - Seizures - Provisional garnishment for tax
indebtedness - Demand for immediate payment under s.
158(2) of Act based on Minister's opinion taxpayer attempting
to avoid payment - Purpose of s. 158(2) and circumstances
where procedure therein may be resorted to - Income Tax
Act, S.C. 1970-71-72, c. 63, ss. 152(2), 158(1),(2), 161(1),
223(1),(2), 224(3) (as am. by S.C. 1980-81-82-83, c. 48, s.
103), 231, 239(1).
Income tax - Practice - Provisional garnishment for tax
indebtedness - Demand for immediate payment under s.
158(2) of Act based on Minister's opinion taxpayer attempting
to avoid payment - Proper use of s. 158(2) procedure
Adequacy of affidavits - Registration of certificate of indebt
edness - Appropriate moment to decide whether sums prop
erly garnisheed - Obligations of Minister re giving notice of
reassessment - Affidavit sufficient as proof of mailing of
notice - Income Tax Act, S.C. 1970-71-72, c. 63, ss. 152(2),
1j8(1),(2), 161(1), 223(1),(2), 224(3) (as am. by S.C. 1980-81-
82-83, c. 48, s. 103), 231, 239(1) - Income Tax Regulations,
C.R.C., c. 945, s. 900(1) - Federal Court Rules, C.R.C., c.
663, RR. 330 (as am. by SOR/79-58, s. 1), 1909 - Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 56 - Code of
Civil Procedure of Quebec, R.S.Q., c. C-25, art. 627.
Constitutional law - Charter of Rights - Legal rights
Provisional garnishment for tax indebtedness - Seizure not
unreasonable within meaning of Charter s. 8 as not unreason
able to garnishee assets as result of filing certificate of indebt
edness - No cruel or unusual punishment within meaning of
Charter s. 12 as procedure very common and in application of
Act - S. 158(2) of Income Tax Act not contrary to Charter
s. 11(d) as not creating criminal offence, being merely civil
matter permitting demand for payment - S. 158(2) not con
trary to Charter s. 24(1) - Income Tax Act, S.C. 1970-71-72,
c. 63, s. 158(2) - Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 8, 11(d), 12, 24(1)
Constitution Act, 1982, s. 52.
When the petitioner was arrested on a narcotics charge,
money apparently belonging to him was seized and placed in
the custody of the garnishee. Learning of the substantial sums
seized, the Department of National Revenue reassessed the
petitioner's taxes for previous taxation years and determined
that the petitioner owed close to $20,000 in income tax, penalty
and interest. A notice of reassessment was sent and then,
instead of following the standard procedure set out in para
graph 223(1)(b) of the Act and waiting 30 days before register
ing a certificate of indebtedness, the Minister chose to register
it only 28 days after the sending of the notice and to make a
peremptory demand for payment under subsection 158(2) of
the Act on the ground that the petitioner was attempting to
avoid the payment of taxes. A provisional garnishment order
was rendered ex parte in this Court pursuant to that certificate.
This case involves three petitions seeking the cancellation
and suspension of the ex parte order and the cancellation of the
garnishment itself. Various arguments were raised concerning
the adequacy of the affidavits. It is further alleged that the
sums could not be properly garnisheed and that they were not
properly garnisheed because the petitioner never received the
notice of reassessment. The petitioner contends that the reas
sessments were unjustified and that there is no justification for
saying that he was attempting to avoid the payment of taxes.
The Charter rights to be secure against unreasonable search or
seizure and not to be subjected to any cruel and unusual
treatment or punishment were also invoked. Subsection 158(2)
is said to infringe the right, guaranteed in paragraph 11(d) of
the Charter, to be presumed innocent until proven guilty and to
be contrary to subsection 24(1). The petitioner finally argues
that invoking subsection 158(2) in the present case was con
trary to natural justice and the duty to act fairly.
Held, the petitions should be granted, but only so far as to
annul the certificate of indebtedness, the provisional garnish-
ment order and the seizure resulting from it, mainlevée being
granted to the garnishee.
The affidavits submitted in these proceedings were adequate.
Also, the decision as to whether sums held by the police could
properly be garnisheed should await the garnishee's declaration
and oppositions to seizure. Other questions such as the owner
ship of the money and the correctness of the reassessment need
not be decided in these proceedings.
The petitioner's right to be secure against unreasonable
search or seizure and not to be subjected to cruel and unusual
punishment, guaranteed by sections 8 and 12 of the Charter
respectively, have not been infringed. Section 8 does not apply
since it remains to be seen whether the seizure is valid or not.
An irregular seizure is not necessarily unreasonable. And it is
not unreasonable to garnishee assets pursuant to a certificate of
indebtedness. Nor is there anything cruel or unusual in apply
ing the provisions of the Income Tax Act in an attempt to
collect taxes. The procedure is very common and the prejudice
suffered in this case is no greater than that of any other seized
debtor.
Whether or not the petitioner received the notice of reassess
ment is of no consequence with respect to the validity of the
certificate. All that subsection 152(2) of the Act requires is
that the Minister "shall send a notice of assessment". There is
no obligation to make sure that it is received. As for the proof
of the mailing, it is sufficient for the affidavit to state that the
notices were sent.
Subsection 158(2) of the Act is not contrary to paragraph
11 (d) of the Charter since it does not create a criminal offence
but is merely a civil matter concerning a demand for payment.
Nor is it contrary to subsection 24(1) of the Charter since the
petitioner's rights were not infringed and since he is not
deprived of his remedy, by an opposition to the seizure, to
oppose the presumption that he is avoiding payment of taxes.
Invoking subsection 158(2) was, however, contrary to the
principles of natural justice and the duty to act fairly, and the
registration of the certificate is therefore invalid. It should only
be used exceptionally and where there is clear evidence of an
attempt to avoid payment of taxes. Subsection 158(2) is direct
ed to situations where a taxpayer is making away with his
assets or some similar circumstances justifying a seizure before
judgment under provincial law. It is not meant to permit the
Minister to avoid compliance with paragraph 223(1)(b) requir
ing a 30-day delay before registering the certificate.
COUNSEL:
André Dugas for respondent.
Louise Gagné for petitioner (seized debtor).
SOLICITORS:
Leduc, LeBel, Montreal, for respondent.
Gagné, Alferez, Montreal, for petitioner
(seized debtor).
The following are the reasons for order ren
dered in English by
WALSH J.: Three petitions were presented by
petitioner in this matter and argued at the same
time, the first seeking the cancellation and suspen
sion of an order rendered ex parte invoking Rules
330 [as am. by SOR/79-58, s. 1] and 1909 of the
Federal Court [Federal Court Rules, C.R.C., c.
663] and sections 8 and 12 of the Constitution
Act, 1982 [Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.)], the second being a petition opposing
and seeking the cancellation of the garnishment of
moveable property, invoking section 627 of the
Code of Civil Procedure of Quebec [R.S.Q., c.
C-25], sections 8 and 12 of the Constitution Act,
1982 and section 56 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10], the third being a
petition to cancel or suspend the execution of the
judgment rendered ex parte invoking Rules 330
and 1909 of the Federal Court and sections 11, 12,
24 and 52 of the Constitution Act, 1982. In argu
ment it was conceded that there is considerable
duplication in these petitions.
The facts giving rise to this litigation may be
outlined as follows. On January 13, 1984 a provi
sional garnishment order was rendered by Justice
Dubé ordering the garnishee to appear on Febru-
ary 24, 1984, to declare all amounts due by it to
the debtor and retain same until the Court decided
how they should be dealt with. This was based on a
certificate registered in the Court on December 7,
1983 pursuant to subsection 223(1) of the Income
Tax Act [R.S.C. 1952, c. 148 (as am. by S.C.
1970-71-72, c. 63, s. 1)] claiming indebtedness of
Charron for 1981 and 1982 income tax, penalty
and interest amounting to $19,631.54 with interest
on the amount of $13,852.71 from November 10,
1983 to the date of payment pursuant to subsec
tion 161(1) of the Act.
Subsection 223 (1) of the Act reads as follows:
223. (1) An amount payable under this Act that has not been
paid or such part of an amount payable under this Act as has
not been paid may be certified by the Minister
(a) where there has been a direction by the Minister under
subsection 158(2), forthwith after such direction, and
(b) otherwise, upon the expiration of 30 days after the
default.
Subsection (2) reads:
223... .
(2) On production to the Federal Court of Canada, a certifi
cate made under this section shall be registered in the Court
and when registered has the same force and effect, and all
proceedings may be taken thereon, as if the certificate were a
judgment obtained in the said Court for a debt of the amount
specified in the certificate plus interest to the day of payment
as provided for in this Act.
An affidavit by Robert Lefrançois dated
December 15, 1983, supporting a petition dated
January 5, 1984 for the provisional garnishment
contains a paragraph stating that the Minister
demanded payment immediately after the assess
ment pursuant to subsection 158(2) of the Income
Tax Act, being of the opinion that the taxpayer
was attempting to avoid payment. This paragraph
was necessary to bring the filing of the certificate
within the provisions of paragraph 223(1)(a) since
the assessment was only made on November 9,
1983 and hence only 28 days before registration of
the certificate. The said section 158 reads as
follows:
158. (1) The taxpayer shall, within 30 days from the day of
mailing of the notice of assessment, pay to the Receiver Gener
al of Canada any part of the assessed tax, interest and penalties
then remaining unpaid, whether or not an objection to or
appeal from the assessment is outstanding.
(2) Where, in the opinion of the Minister, a taxpayer is
attempting to avoid payment of taxes, the Minister may direct
that all taxes, penalties and interest be paid forthwith upon
assessment.
The notice of assessment was allegedly sent to the
debtor at his address the same day it was made,
that is to say, November 9, 1983. Petitioner con
tends that as of December 7, 1983 he had never
received notice of this assessment, which was in
effect a reassessment, since he had already been
assessed for the 1981 and 1982 taxation years on
the basis of the returns he had made without any
additional amounts being claimed.
Petitioner alleges that it was only about January
30, 1984 after having learned of the procedures
taken to execute the judgment that he made
formal notices of opposition to these reassess
ments. Respondent does not deny that these were
made in time and will be dealt with in due course.
Petitioner raises a variety of arguments in con
testing the provisional garnishment order of Janu-
ary 13, 1984. He states that the affidavit by virtue
of which it was obtained was defective as it did not
say that the certificate of December 7, 1983,
having the effect of a judgment, has not been
satisfied. This contention is wrong since paragraph
1 of the affidavit states that the amount remains
unpaid. He states that the affidavit does not state
the amounts of the debt owing to him by the
garnishee. The affidavit of necessity contained cer
tain information necessary to indicate why an
order should be issued against the garnishee call
ing upon him to declare. It is conceded that he was
arrested on October 19, 1983 on a charge under
the Narcotic Control Act [R.S.C. 1970, c. N-1],
that on his arrest the following sums were found,
$800 on his person, $4,670 with his effects in a
bag, and $14,000 at 2 Place Dupuis, L'Esterel, and
that they are in the possession of the Clerk of the
Court of the Sessions of the Peace, the garnishee.
Supporting documents were annexed to the affida
vit. On November 17, 1983 an order to produce
the sums seized was served on the police of the
Montreal Urban Community pursuant to subsec
tion 224(3) of the Income Tax Act [as am. by S.C.
1980-81-82-83, c. 48, s.103], and on December 1,
1983 a peremptory demand for payment was made
on the Clerk of the Court of the Sessions of the
Peace, Montreal.
While it seems doubtful whether the sums held
by the police come within the provisions of subsec
tion 224(3) of the Act which only refers to
amounts payable to the tax debtor as "interest,
rent, remuneration, a dividend, an annuity or other
periodic payment", the issue of whether these
sums can be properly garnisheed should await a
decision when the garnishee has made his declara
tion, at which time oppositions to seizure whether
by the debtor or the garnishee or by a third party
having an interest in the said sums can be dealt
with.
While certainly the guilt or innocence of the
debtor is not an issue before this Court, and he
must in any event be presumed to be innocent until
proven guilty, this information, to which his coun
sel strongly objected, was necessary to indicate the
nature of the funds held by the garnishee. Petition
er's counsel pointed out however that he was
charged together with others, so that it has not
been established that the money seized by the
police was his. In particular there is nothing to
show that the $14,000 seized at the address 2
Place Dupuis, L'Esterel was at an address belong
ing to him although documents produced indicate
that this was done by virtue of a search warrant.
Here again if the money seized or part of it does
not belong to the debtor the owners can make an
opposition to seizure in due course.
The fact that the debtor is in prison does not
deprive him of any civil rights other than those
necessarily resulting from his incarceration nor
can it taint his right to appeal the assessment. It
appears from a further affidavit of Robert Lefran-
cois produced at the hearing that Charron had
filed no tax returns for 1978 or 1979, had only
declared income of $1,084.05 for 1980, $2,332 for
1981 and $1,719 for 1982 so that representatives
of the Minister on learning of the substantial sums
seized made a further investigation of his bank
deposits in 1982 and 1983 and his living expenses
adding, as a result, $38,532 as business income to
his 1981 return and $42,826 as business income to
his 1982 return in new tax assessments dated
November 9, 1983. Whether these new assess
ments were justified or not is a matter which will
only be determined following the decision on his
notices of objection and whatever appeals he may
bring. Meanwhile, whether the assessments are
right or wrong, the certificates resulting from them
were registered on December 7, 1983.
Petitioner contends however that there is no
justification for saying that he is avoiding payment
of tax. Certainly the mere fact of non-payment is
not equivalent to avoidance, nor is the fact of
making erroneous declarations (and this has not
yet been proved in view of the notice of objection).
This is clearly not the intention of subsection
158(2) of the Act. The Minister may have had
good reason for using this section for registering
the certificate only 28 days after the assessments
instead of waiting for the normal delay of 30 days
which would not require an allegation of avoidance
of payment. Petitioner contends however that
Robert Lefrançois who made the affidavit could
not make this statement, as it was only the Minis
ter who could make this finding. All the affidavit
states though is that the Minister was of this
opinion, not that it is Lefrançois' opinion. While
petitioner states that this is hearsay it is supported
by an exhibit annexed to the affidavit and a copy
of the letter by the Deputy Minister dated Novem-
ber 9, 1983 advising the debtor of the reassess
ments and demanding immediate payment which
states
[TRANSLATION] This directive is addressed to you by virtue of
Paragraph 2 of Article 158 of the Income Tax Act of Canada.
The Deputy Minister can exercise the powers of
the Minister.
While petitioner invokes section 8 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] in the
Canadian Constitution of 1982 which provides
that everyone has the right to be secure against
unreasonable search or seizure and section 12 pro
viding that "Everyone has the right not to be
subjected to any cruel and unusual treatment or
punishment", I do not believe that section 8 can
have any application since it remains to be seen
whether the seizure was valid or not. There is
undoubtedly a difference between an irregular sei
zure and an "unreasonable" seizure. It is not
unreasonable to garnishee assets as a result of the
filing of a certificate under section 231 of the Act
for income tax assessments. With respect to sec
tion 12 there is certainly no question of any unusu
al treatment or punishment. What has been done
is a very common procedure and although petition
er alleges that as a result of the seizure he is now
deprived of any source of income and that he
suffers a grave prejudice this is no more than the
prejudice suffered by any debtor whose assets are
seized by a creditor, nor is there anything cruel or
unusual in applying the provisions of the Income
Tax Act in an attempt to collect taxes believed to
be due. As already stated the petitioner has every
right to oppose the seizure before it is made defini
tive, and also to contest his liability for taxes
which led to the seizure.
A number of arguments were submitted on
behalf of petitioner most of which cannot be sus
tained with the exception of one serious argument
which I will deal with at the end of these reasons.
Petitioner contends, as previously indicated, that
he did not receive the notice of reassessment and
that for this reason the registration certificate was
invalid. All that subsection 152(2) of the Income
Tax Act requires is that the Minister "shall send a
notice of assessment". It is possibly quite true that
Charron did not receive it. There is no obligation
to serve it or even to send it by registered mail. It
was quite properly sent to the address of the
taxpayer as shown in his return and if he happened
to be in jail at the time and it was not forwarded to
him this is not the responsibility of the Minister.
Even if the representatives of the Minister were
aware that he was in jail there would be no
obligation to send the notice to him there, since if
this policy were adopted it would make the Minis
ter responsible for attempting to trace the address
of a taxpayer who has moved since filing his return
in order to send the notice to him. The obligation
imposed by the Act is to send the notice not to
make sure that it is received. Moreover in this
case, no doubt as a matter of excessive caution as a
result of the petitions brought, a further affidavit
of Robert Lefrançois was filed at the opening of
the hearing which gives the names of the persons
who posted the notices to Charron and annexes
affidavits from them to this effect indicating the
mailing on November 9, 1983. While petitioner
points out that these affidavits do not strictly
comply with the Rules of this Court with respect
to affidavits in that the address and occupation of
the deponent is not given nor does it state that the
persons making them are employees of the Depart
ment of National Revenue this makes little differ
ence because in the first place, as respondent
points out these letters could have been posted by
anyone, not necessarily an employee of the Minis
try, and moreover as I have stated such rigorous
proof of the mailing of a letter is certainly not
necessary or feasible in connection with the thou
sands of notices of assessment or reassessment sent
regularly as a matter of course. It is sufficient for
the affidavit to state as it did that the notices were
sent.
On the same date, November 9, 1983, formal
demands for payment were also sent. The standard
form states that "A certificate has been registered
in the Federal Court of Canada in respect of the
federal arrears indicated". This is obviously incor
rect since the certificate was only registered on
December 7, so the standard form was obviously
not applicable in the circumstances of this case. In
any event the letters advising of the reassessments
sent on November 9, 1983 demanded immediate
payment and refer to subsection 158(2) of the
Income Tax Act and moreover in any event the
taxpayer admits becoming aware in due course,
although after registration of the certificate on
December 7, of the notices of reassessment and, as
already indicated, filed a notice of opposition
within the proper legal delays. Moreover a consid
erable time elapsed between the registration of the
certificate on December 7, 1983 and the provision
al order of January 13, 1984. Furthermore the
affidavit of Mr. Lefrançois produced at the hear
ing states that on November 25, 1983 he sent to
Charron at his residential address a copy of a
peremptory demand for payment, copy of which is
annexed to the affidavit. This makes no reference
to the date of registration of the certificate.
A further affidavit of André Héroux, an
employee of the Department states that on
November 17, 1983, he had had a telephone call
from Charron inquiring as to the reasons why
Revenue Canada were demanding the payment of
about $19,000 from him. Héroux advised him that
an assessor would call to see him. Another affida
vit of Jean-Pierre Paquette, an employee of the
Department states that on December 6, he had a
call from an officer of the Detention Centre, Par-
thenais Street, indicating that Charron had
received different papers from Revenue Canada
and wished to meet him. This is of course hearsay.
As a result on December 13, he went there with
Gaetan Côté at which time Charron stated the
documents which he had received from Revenue
Canada had been sent to his lawyer in Quebec. He
further states that he had received no collaboration
from him with respect to establishing the sources
of his income. An affidavit from Côté corroborates
this.
Petitioner contends that subsection 158(2)
(supra) is contrary to the Canadian Charter of
Rights and Freedoms and more specifically para
graph 11(d) thereof providing that any person
charged with an offence has the right to be pre
sumed innocent until proven guilty according to
the law in a fair and public hearing by an
independent and impartial tribunal. All that sub
section 158(2) does is permit the Minister (or
Deputy Minister who can exercise his powers pur
suant to subsection 900(1) of the Income Tax
Regulations [C.R.C., c. 945]) to form an opinion
that the taxpayer is attempting to avoid payment
of taxes and thereby not be required to wait 30
days from the mailing of the notice of assessment
to demand payment of them. Petitioner correlates
this with subsection 239(1) of the Act which cre
ates an offence for evading payment of tax. Cer
tainly anyone charged with an offence under sec
tion 239 would have to be given a fair trial.
Charron has not been charged with any income tax
offence even though the reassessment may have
resulted from the fact that in the opinion of the
Minister the returns he made omitted to include a
substantial part of his income. Subsection 158(2)
by virtue of which the certificate was registered
depends on itself and does not create a criminal
offence but is merely a civil matter permitting a
demand for payment to be made without
waiting 30 days from the mailing of the notice of
assessment. It is also of interest to note that it uses
the word "avoid" payment of the taxes rather than
the word "evade" which is the essence of the
criminal offence.
Neither do I find subsection 158(2) of the
Income Tax Act is in any way contrary to subsec
tion 24(1) of the Canadian Charter of Rights and
Freedoms, nor that the taxpayer's rights are
infringed as a result of it. Subsection 24(1) reads
as follows:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
While it is true that the Minister's opinion in
relation to the fact that the taxpayer is avoiding
payment of taxes was made without first hearing
the taxpayer he is not deprived of his remedy to
oppose this by establishing by an opposition to
seizure that he is not avoiding payment of taxes. In
fact in the present case as the affidavits of Côté
and Paquette which have been referred to above
establish they even went to the prison to interview
Charron (although admittedly after the registra
tion of the certificate) respecting his complaints
against the assessment but were merely informed
that he had sent the documents to his lawyer in
Quebec, and received no collaboration from him.
While the term collaboration is somewhat vague
he certainly had the opportunity at that time to at
least claim that none of the sums which have been
seized belonged to him, or that he had received
them in some manner which would not require
them to be included in taxable income so that they
could investigate his allegations. Instead he chose
to remain silent, although he will still have an
opportunity to make such proof if it is possible in
an opposition to seizure.
This brings us to what I consider to be a serious
argument however on the basis of which I believe
that petitioner must partially succeed in his peti
tions. The standard procedure for registration of a
certificate as set out in paragraph 223(1)(b)
(supra) is to wait 30 days after the notice of
assessment has been sent before registering the
certificate which then becomes equivalent to a
judgment of the Court. This is admittedly a severe
section and the Court has no discretion with
respect to the registration of such certificate when
produced for this purpose signed by a properly
authorized officer of the Department of National
Revenue. The certificate itself gives no reference
to the date of sending the notice of assessment or
reassessment but merely refers to the taxation year
for which the assessment is made. This can be
immediately followed by a petition for a provision
al seizure, although in the present case the Minis
ter waited nearly a month before producing the
petition. For obvious reasons this is done ex parte.
The judgment on this petition fixes a date on
which the debtor, and if it is a garnishment the
garnishee, shall appear to declare and this is duly
served on them and they can make an opposition to
the seizure at that time. In the interval the garni
shee is ordered not to dispose of the object seized.
Invoking subsection 158(2) as was done in the
present case is an exception to the general rule
requiring the 30-day delay from the mailing of the
assessment to the registration of the certificate.
For reasons best known to him the Minister only
waited 28 days, therefore the certificate could not
be validly registered except by invoking subsection
158(2).
The debtor Charron cannot contend that he had
no knowledge that this was intended since refer
ence to this section was made in the letters advis
ing him of the notices of reassessment. While I do
not find that this article itself is contrary to the
Canadian Charter of Rights and Freedoms, I do
conclude that as a matter of natural justice and
the well established duty to act fairly it should
only be used exceptionally and when there is clear
evidence in the possession of the Minister that the
taxpayer is "attempting to avoid payment of
taxes". If this were not so then the Minister could
use this article in all cases thereby avoiding com
pliance with paragraph 223(1)(b) requiring the
30-day delay. In a sense it can be said that any
taxpayer who files an incomplete or false return is
attempting to avoid payment of taxes. In a general
way it is also perhaps arguable that any taxpayer
who has substantial sums of money in his posses
sion but has not paid his taxes is avoiding payment
of them. I do not find that either such circum
stances however is what subsection 158(2) is
intended to cover. It would appear to be directed
more to a situation where a taxpayer is found to be
making away with his assets, transferring them to
others for insufficient consideration, is about to
leave the country, or some such circumstance as
would justify a seizure before judgment under
provincial law. In the present case the taxpayer
disputes that the assets are his, or that they result
ed from undeclared income, and in fact has filed a
notice of objection to the assessments. While it is
true that at the time the affidavit was made none
of this was before the Minister, the affidavit read
in conjunction with the facts which are now before
the Court gives no indication of the Minister's
justification for reaching the opinion that the
debtor is attempting to avoid payment of taxes.
The fact that he is in prison awaiting trial certain
ly adds nothing to this.
In conclusion therefore I find that subsection
158(2) should not have been used so as to register
the certificate prematurely and that this registra
tion is therefore invalid. It follows that the provi
sional garnishment judgment issued by Justice
Dubé on February 13, 1984 must be set aside.
These issues were not raised before him and the
judgment was properly rendered on the basis of
the affidavits supporting the petition for provision
al judgment which invoked subsection 158(2).
Accordingly I grant petitioner's petition but
only so far as to set aside the provisional seizure by
garnishment made by virtue of the judgment of
January 13, 1984 and suspending the execution of
a judgment resulting from it. I do not however
grant the third conclusion sought in the petitions
that the money seized should be paid to petitioner.
The period of 30 days now having lapsed since the
sending of the notice of reassessment respondent
can register a new certificate pursuant to para
graph 223(1)(b) without invoking the provisions of
subsection 158(2) and if it so chooses forthwith
apply for a new provisional garnishment order
based on this new certificate and need not await
the date normally set aside by the Rules of this
Court for presentation of motions by virtue of the
Income Tax Act but may present same forthwith.
In due course as already stated if this is done the
debtor Charron or anyone claiming ownership of
the sums seized can present an opposition to sei
zure at the date fixed for making the provisional
judgment definitive. There will be one set of costs
in favour of petitioner on the three motions.
ORDER
This Order is applicable to the three motions
presented herein.
1. Neither subsection 158(2) nor section 223 of the
Income Tax Act are unconstitutional.
2. The certificate for taxes registered on December
7, 1983 is annulled without prejudice to the right
to re-register same.
3. Consequently the provisional garnishment judg
ment rendered on January 13, 1984 is annulled as
well as the seizure resulting from it, mainlevée
being granted to the garnishee.
One set of costs on the three motions, in favour
of petitioner.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.