One of the “arguments” advanced by amateur lawyers who question the legality of the income tax is that no “official” consolidated version of the Income Tax Act, RSC 1985, c 1 (5th Supp), as amended, exists. Because no official version exists, the argument seems to go, the Act must be illegal or unenforceable. This is nonsense of course. An official consolidated version of the Act does exist (see below). Moreover, validity does not require consolidation.
A variation on the foregoing “argument” was advanced in Chaudhry v R, 2016 TCC 28. The taxpayer’s representative argued that his client’s appeal should be allowed because the provisions of the Act were not properly before the court. Why? Sections 4, 5 and 7 of the Publication of Statutes Act, RSC 1985, c S-21, provide as follows:
4. The Clerk of the Parliaments shall have a seal of office and shall affix the seal to certified copies of all Acts required to be produced before courts of justice, either within or outside Canada, and in any other case in which the Clerk of the Parliaments considers it expedient.
5. All copies of the Acts certified by the Clerk of the Parliaments pursuant to section 4 shall be held to be duplicate originals and to be evidence of those Acts and of their contents as if printed under the authority of Parliament by the Queen’s Printer.
7. The Clerk of the Parliaments shall furnish certified copies of any of the Acts mentioned in section 3 to any department of the federal public administration or the public service of any province or to any person applying for a copy, and on every certified copy shall, before delivering it, receive a fee of two dollars, in addition to the cost of the printed copy, if a printed copy is furnished, or in addition to a fee of ten cents for every hundred words in the copy, if the copy furnished is not printed.
From the foregoing the taxpayer’s representative deduced the following propositions (at ¶8–¶10):
a) A sealed version of the Act is “required to be produced before courts of justice … within … Canada”
b) Only “copies of the Acts certified by the Clerk … pursuant to section 4 shall be held … to be evidence of those Acts and of their contents as if printed under the authority of Parliament by the Queen’s Printer.”
[c) The Minister’s counsel did not produce such a certified copy before the court.]
[10] On that basis, the Court has no evidence that the reassessment against the appellant has been raised by the Minister pursuant to validly subsisting and promulgated legislation.
Of course, the first two propositions do not follow from the statutory provisions cited. In particular, section 4 does not state that certified copies must be produced in all proceedings before the courts. Section 5 does not provide that only certified copies are evidence of the contents of statutes. In fact, other statutes make it clear that, in ordinary circumstances, copies certified by the Clerk of the Parliaments need not be produced before a court. Section 18 of the Canada Evidence Act, RSC 1985, c C-5, states that “Judicial notice shall be taken of all Acts of Parliament, public or private, without being specially pleaded.” What versions of the Act (or any other statute) can (should) a court notice? Section 26 of the Legislation Revision and Consolidation Act, RSC 1985, c S-20 (the “LRCA”), states that “The Minister [of Justice] may maintain a consolidation of the public statutes of Canada and a consolidation of the regulations of Canada.” Subsections 31(1) and (2) of the LRCA provide as follows:
(1) Every copy of a consolidated statute or consolidated regulation published by the Minister under this Act in either print or electronic form is evidence of that statute or regulation and of its contents and every copy purporting to be published by the Minister is deemed to be so published, unless the contrary is shown.
(2) In the event of an inconsistency between a consolidated statute published by the Minister under this Act and the original statute or a subsequent amendment as certified by the Clerk of the Parliaments under the Publication of Statutes Act, the original statute or amendment prevails to the extent of the inconsistency.
Query whether “unless the contrary is shown” in subsection (1) modifies both clauses of the subsection or only the last one. In any event, the import of these provisions is clear: the court must take judicial notice of public statutes, including the Act, and a court is entitled to “notice” the Justice consolidation of the Act, including the consolidated version of the Act published in electronic form on the Justice website. No copy certified by the Clerk is necessary, generally speaking.
When might such a certified copy be necessary? If there is a discrepancy between the Justice version and the “official” copy, then the person alleging the inconsistency could order a certified copy and produce it in court as proof of the inconsistency (per subsection 31(2) of the LRCA). The taxpayer’s representative in Chaudhry, however, did not allege any such discrepancy, which meant that the court could dispense with certification by the Clerk and conclude that the assessment and the Act were both properly before the court.
Appeal dismissed, with costs.
