Judgments

[1993] 2 F.C. 26

A-1085-90

Distribution Canada Inc. (Appellant)

v.

Minister of National Revenue (Respondent)

Indexed as: Distribution Canada Inc. v. M.N.R. (C.A.)

Court of Appeal, Pratte, Stone and Desjardins JJ.A.—Vancouver, November 18 and 19, 1992; Ottawa, January 8, 1993.

Customs and Excise — Customs Tariff — Independent grocers organization seeking mandamus to compel enforcement of Customs Tariff — Members losing trade due to cross-border shopping — Departmental policy not to collect duty of $1 or less — Even larger amounts waived to avoid delays when traffic heavy or interdiction activities in progress — Whether all reasonable means to enforce Act taken outside Court’s domain as requiring policy considerations assessment — M.N.R. limited by budget constraints — Only one charged with public duty can decide how best to utilize resources — M.N.R. having established difficulties in implementation where discretion enjoyed.

Judicial review — Prerogative writs — Mandamus — Appeal by independent grocers organization from denial of mandamus as no enforceable duty to appellant — Customs Tariff, s. 4 (now s. 19) providing duties “shall” be collected on imported goods — Ministerial policy giving customs officers discretion not to collect duties depending upon extraneous considerations — Appellant’s members hurt by cross-border shopping — Appeal dismissed — Minister owing public legal duty to enforce law — Implies must take reasonable means to enforce Act — Reasonableness of measures requiring assessment of policy considerations, outside Court’s domain — Minister having discretion as to how best to fulfil duty — Only person charged with public duty can determine how to utilize resources.

Practice — Parties — Standing — Appeal from trial judgment dismissing application for mandamus to compel Minister to collect import duties on basis appellant lacking standing — Appellant representing independent grocers in border communities — Losing business due to cross-border shopping — Review of S.C.C. cases on standing — Important considerations: economic loss suffered as result of non-enforcement making appellant aggrieved person; who Customs Tariff intended to protect; matter of strong public interest; may be no other way to bring matter to Court’s attention — Unnecessary to decide issue in view of decision on mandamus.

This was an appeal from the trial judgment dismissing a motion for mandamus requiring the respondent to comply with Customs Tariff, section 4 (now section 19), which provided that customs duties “shall” be collected on imported goods. The action was brought on behalf of independent grocers carrying on business in border communities which have suffered significant business losses as a result of the Minister’s policy not to collect duty on certain non-exempt groceries and other purchases made by Canadians in the United States, particularly those who have been in that country for less than twenty-four hours. It is the department’s policy not to collect duty of $1 or less and higher amounts may be waived when other priorities, such as traffic volumes, or other concurrent enforcement activities, dictate. The appellant complained that the Minister was not enforcing the Customs tariff strictly as he is required to do under section 19. The Trial Judge held that the appellant had no standing to seek mandamus, and there was no duty enforceable by the Court which was owed to the appellant. Although Customs Tariff, section 4 uses “shall”, he believed that the Minister had a discretion as to the means to enforce the law. He found that the duty to enforce the legislation was owed to the Crown only.

The issues were whether the appellant had standing to bring an application for mandamus, and the meaning to be attributed to “shall” in section 19.

Held, the appeal should be dismissed.

The Minister enjoys a discretion with which the law will not interfere. He owes a legal duty to the public to enforce the law. This implies that he must take all reasonable means to enforce the provisions of the Customs Tariff, but the reasonableness of those measures requires the assessment of policy considerations which are outside the domain of the courts since they deal with the manner in which the law ought to be enforced. The appellant suggested that the Minister was not doing all that he could. One of the purposes of the Customs Act is the collection of revenue. If the Minister finds that the cost of collecting duty and taxes from persons returning to Canada exceeds the amount collected, he ought to have the discretion so as to appropriately tailor the means to the end. If the enforcement of the Act leads to a depletion of revenues, the respondent cannot be said to be acting in conformity with the Act. In such cases, no more can reasonably be expected of him. The respondent showed that he was conscious of his responsibilities under the Customs Act. He is considering means to enable his officials to collect small amounts of duties without causing unreasonable border delays. The respondent’s operations are subject to budget constraints, limited facilities and personnel considerations. To compel him to proceed would be to enter into an area where the respondent must be the only one to manoeuvre. A voluntary assessment, as proposed by the appellant, with no reasonable means of checking its accuracy, might belittle the assessment process. It might provide little encouragement to the taxpayer who would be given no receipt as evidence of duty paid. Only he who is charged with a public duty can determine how to utilize his resources. The Minister has not ignored his duties. Neither negligence nor bad faith was demonstrated.

Although it was unnecessary to decide the issue of standing in light of the finding concerning mandamus, the following observations might be made. The law on standing has developed through several Supreme Court of Canada cases. The notion of public interest was enlarged in Finlay v. Canada (Minister of Finance) so that the Court would have discretion to recognize public interest standing to bring an action for a declaration when there was no other reasonable way the matter could be brought to Court. With the addition of Finlay, the case law does not clearly exclude the possibility of extending standing to a proceeding in mandamus where there is a public interest to be expressed. Otherwise, a court could declare the law, but could not make the order under it. The appellant was aggrieved in the sense that it suffered an economic loss as a consequence of the non-enforcement of the Act, but the Customs Tariff is intended for the protection of Canadian producers, not distributors. The matter raised by the appellant is one of strong public interest and there may be no other way such an issue could be brought to the attention of the Court, were it not for the efforts of the appellant.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Bill of Rights, R.S.C. 1970, Appendix III.

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5].

Criminal Code, R.S.C. 1970, c. C-34.

Customs Act, R.S.C., 1985 (2nd Supp.), c. 1.

Customs Tariff, R.S.C., 1985, c. C-54, s. 4.

Customs Tariff, R.S.C., 1985 (3rd Supp.), c. 41, s. 19.

Excise Act, R.S.C. 1970, c. E-12, s. 6 (as am. by R.S.C. 1970 (1st Supp.), c. 15, s. 3).

CASES JUDICIALLY CONSIDERED

DISTINGUISHED:

Rothmans of Pall Mall Canada Limited v. Minister of National Revenue (No. 1), [1976] 2 F.C. 500; (1976), 67 D.L.R. (3d) 505; [1976] C.T.C. 339; 10 N.R. 153 (C.A.).

CONSIDERED:

Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1 W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23 Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338; Re North Vancouver (District of) et al. and National Harbours Board et al. (1978), 89 D.L.R. (3d) 704; 10 C.E.L.R. 31; 7 M.P.L.R. 151 (F.C.T.D.); Friends of the Oldman River Society v. Canada (Minister of Transport), [1990] 2 F.C. 18; (1990), 68 D.L.R. (4th) 375 (C.A.); Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; (1974), 43 D.L.R. (3d) 1; 1 N.R. 225; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; (1975), 12 N.S.R. (2d) 85; 55 D.L.R. (3d) 632; 32 C.R.N.S. 376; 5 N.R. 43; R. v. Metropolitan Police Comr., Ex parte Blackburn, [1968] 1 All E.R. 763 (C.A.); Regina v. Comr. of Police of the Metropolis, Ex parte Blackburn (No. 3), [1973] 1 Q.B. 241 (C.A.).

APPEAL from trial judgment ([1991] 1 F.C. 716; (1990), 46 Admin. L.R. 34; 39 F.T.R. 127) dismissing application for mandamus to compel Minister to collect duties under Customs Tariff, section 19. Appeal dismissed.

COUNSEL:

H. Shapray for appellant.

Gunnar O. Eggertson for respondent.

SOLICITORS:

Freeman & Company, Vancouver, for appellant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Desjardins J.A.: This is an appeal from a decision of the Trial Division [[1991] 1 F.C. 716] which dismissed a motion for a writ of mandamus or other relief in the same nature so as to oblige the respondent to comply with the provisions of section 4 of the Customs Tariff [R.S.C., 1985, c. C-54] (the Act).[1] At issue is the meaning to be given to the word “shall” found in that provision.

The appellant is a non-profit organization whose members are independent merchants, primarily grocers, operating some 1,300 stores located in Nova Scotia, Quebec, Ontario, Manitoba and British Columbia. It bargains on behalf of its members with grocery suppliers in order to make its members more competitive with the larger grocery chains. It also lobbies governments on behalf of its members and handles various legal problems for them.

The appellant is pursuing this proceeding on behalf of those members carrying on business in border communities which have suffered significant business losses as a direct result of the Minister’s policy not to collect duty on certain non-exempt groceries and other purchases made by Canadians in the United States, particularly those who have been in that country for less than twenty-four hours. Fourteen of the members’ stores are in close proximity to the Canada/United States border and claim they are seriously affected by Canadians shopping in the United States. Those which are not so close to the border claim they are also affected since many Canadian shoppers come from communities which are at substantial distances from the border.[2]

The appellant complains that the respondent is not enforcing the Customs Tariff strictly as he is required to do under the wording of section 19 of the Act.

The policy of the respondent is set out in a letter of August 3, 1989, from the Minister of National Revenue, the Honourable Otto Jelinek, to Mr. Gerry Prins, the President of the appellant. The key paragraph reads as follows:[3]

At the outset, I should explain that it is my department’s policy that Customs inspectors not refer travellers for duty payment on their goods when the amount owing is $1.00 or less. In addition, higher amounts may be waived when other priorities dictate. In cases where the volume of traffic results in unacceptable delays, for example, or when interdiction activities are under way, it is recognized that Customs inspectors might waive assessments of $2.00, $3.00 and $4.00 or more, depending upon conditions at the time and their ability to efficiently process traffic.[4]

The policy of the respondent is well known; it has been publicized and deliberately disseminated on television, on open-line shows, on radio, and in newspapers.[5]

The decision under appeal

The Motions Judge concluded that the appellant had no standing to seek mandamus and that there was no duty enforceable by the Court which was owed to the appellant.

The Motions Judge gave great weight to the decision of our Court in Rothmans of Pall Mall Canada Limited v. Minister of National Revenue (No. 1)[6] in support of his finding that the applicant had no standing to seek mandamus. He quoted [at page 723] in particular the following passage from the decision of Le Dain J.:

… In so far as mandamus is concerned, there is no public duty of any kind that the appellants have a right to enforce. The duty of the respondent officials under section 202 of the Excise Act is one owing to the Crown rather than the appellants.

He found that the decisions of the Supreme Court of Canada in Minister of Justice of Canada et al v. Borowski[7] and Finlay v. Canada (Minister of Finance)[8] had not extended standing in respect of mandamus, although they had extended standing to seek declarations in non-constitutional cases where the issue was alleged conflict between a statute and the Canadian Bill of Rights [R.S.C. 1970, Appendix III] or alleged failure of a Minister to comply with a federal statute. There was a tendency in mandamus cases, he said, for the issues of standing and the existence of a judicially enforceable duty to be intermixed. He explained that even if a more generous view of standing were taken in light of the widening of that concept in respect of other public law remedies, there still remained the core need for a judicially enforceable duty to be identified.[9] If a public officer was obliged by statute to do a particular thing in particular circumstances for the benefit of particular persons, such persons could seek judicial enforcement of that duty. But if a public officer had been left a discretion as to what he does, how he does it, or when he does it, there was no judicially enforceable duty on his part to do that thing at a particular time or in favour of a particular person. Although section 4 of the Customs Tariff used the verb “shall”, he believed the Minister had a discretion as to the means to enforce the law. When the Minister established in good faith some credible system of collection, even if the system was not “leak-proof” or if he acquiesced in some failures to pay customs duties, this did not entitle the Court to assume control as to how duties were to be collected. He distinguished on that basis the decisions of the Federal Court, Trial Division, in Re North Vancouver (District of) et al. and

National Harbours Board et al.[10] and that of the Federal Court of Appeal in Friends of the Oldman River Society v. Canada (Minister of Transport).[11] He stated that the case at bar was not one where the respondent had totally refused or failed to enforce the Customs Tariff.[12]¹

Instead, it is his policy and practice to enforce that Act through collections to the extent that it is feasible to do so, given the resources made available to him by Parliament through the funding of staff and facilities. He has also obviously taken into account the impact of different levels of enforcement on U.S. tourist traffic into Canada and the impact on U.S. border areas in respect of lineups for entry into Canada. The law is clear that, if these considerations were completely irrelevant to the proper administration of the Act or if they involved bad faith or improper motives on the part of the Minister and his Department, they might invite some sort of judicial review. But I can see nothing of the sort in the explanations given by the Minister for his policy of not collecting every possible dollar in duty from those visiting the United States for less than twenty-four hours.

He concluded that the Court could not direct the Minister with regard to the means to enforce the law.

The appellant’s contention

The appellant contends that this Court is not being asked to decide how duty and taxes are to be collected but, rather, whether the Minister has a duty to collect them. The purpose of the Customs Tariff is to protect distributors and the respondent Minister has an obligation to collect the duty and taxes at issue.

The most frequent purchases in the United States by day-tripping Canadians are gasoline and groceries.[13]

With regard to gasoline, the evidence shows that the Department of National Revenue does not collect duty and taxes on gasoline purchased in the United States and brought into Canada in the normal tank of private passenger vehicles. Safety considerations are involved. The respondent has explained that, in order to collect duty and taxes on gasoline, it would be necessary to determine the amount of gasoline in the tank upon leaving Canada and upon returning to Canada. Since gasoline fumes are extremely flammable and the ignition of the gasoline or the fumes would endanger Customs officials, occupants of the vehicle and neighbouring vehicles and their occupants, Customs officials do not engage in such measurements.[14] Moreover, the evidence suggests that strict enforcement of the Customs Tariff at border points would create unreasonable delays to Canadian vehicles entering the United States from Canada, as well as to all vehicles entering Canada from the United States with both resident and non-resident passengers, and would place a tremendous stress on inspection resources available at these points[15] which are deployed not only to administer the Customs Tariff but also some fifty-nine additional federal statutes[16] depending on their application in given circumstances.

The appellant claims, however, that voluntary assessment, which is the basis of our income tax system,[17] would be a consistent and practical method to determine whether gasoline was acquired in the United States. It claims, on the basis of its observations that, at the Tsawwassen, British Columbia/ Point Roberts, Washington crossing, virtually all of the Canadian cars crossing the border at one time travelled straight to either the grocery store, gas station or liquor store, and immediately returned to the border crossing; most of these cars had groceries in them. Approximately 99% of the Canadian cars returning to Canada via the crossing were waived through even though most of them presented receipts for their purchases to the Customs officers.[18] In accordance with specific and explicit ministerial policy, therefore, duties at the Canada-United States border are deliberately not collected, at the discretion of officers on duty, depending on a variety of extraneous considerations such as the amount payable, traffic volumes, or other concurrent enforcement activities, etc. The more traffic there is, the less any attempt is made to collect these amounts of duty on declared dutiable goods.

With regard to groceries, the respondent has explained that it has prepared what is called a “Grocery List” which sets out for the travelling public, in a general way, the rates of duty, quantity restrictions, prohibited goods, federal sales tax and exemptions therefrom, and other information applicable to groceries imported by returning residents. The use of the “Grocery List” and its update have significantly cut down the time spent by officials in responding to requests since it would take up to twenty minutes if the tariff classification and duty had to be ascertained for each separate commodity from the Customs Tariff itself. As a result, many travellers segregate the purchases of goods shown on the List and mark up their cash register receipts to indicate whether the goods are free of duty or carry the duty or other charges set out in the List. Some items attract no duty at all. Others do but, because they represent a few cents a kilogram, it is sometimes uneconomic for the respondent to collect them. On purchases presented by travellers in quantities which a Customs inspector thinks are beyond the personal weekly needs of a family, Customs inspectors are instructed to disregard the “Grocery List” in assessing the duty owed.[19]

The policy applied, with regard to groceries, is also contained in the Minister’s letter to the President of the appellant, dated August 3, 1989:[20]

With regard to grocery items in particular, there are a number of factors which make their importation somewhat unique. As you are no doubt aware, the vast majority of everyday food items are exempt from the payment of the 13.5% federal sales tax. In addition, many items are either free of duty, such as bread, citrus fruit and vegetables (depending upon the season), or are subject to a very low rate of duty based upon their weight (i.e. pennies per pound), such as beef, chicken, coffee, butter, peanut butter and cheese. In view of this, you will appreciate that if the traveller insists on having the Customs inspector treat each grocery commodity separately in determining the amount of duty payable, it is possible, if the shopper is prudent, to import a high value of groceries without exceeding the $1.00 cut-off mark. In practice, however, most travellers do not insist on using the regular provisions of the Tariff, and Customs inspectors apply the general grocery tariff item which provides for a rate of duty of 15.3%. Using this method, a value of $6.50 in groceries would yield $1.00 in revenue. Of course, in addition to the collection of revenue, Customs inspectors also enforce the quota restrictions which apply to certain commodities such as dairy products and poultry, and travellers are limited to the amounts specified in each case regardless of the revenues involved.

There again, the appellant claims that the Motions Judge erred in interpreting section 19 of the Customs Tariff in such a manner as to confer ministerial discretion on the respondent as to whether or not to collect the duty. It claims that a voluntary system of assessment should also be established for those grocery products which are taxable and that duty ought to be collected.

With regard to standing, the appellant argues that the Motions Judge erred in finding that the duty to enforce the Act is owed to the Crown only. The appellant has a competitive interest recognized in the case of Rothmans of Pall Mall Canada Limited. Moreover, the position taken by the Motions Judge in refusing to extend standing in respect of mandamus was too rigid in light of Finlay v. Canada (Minister of Finance).[21]

Analysis

The first question to be dealt with is whether the Motions Judge was correct in refusing to grant standing in respect of mandamus.

In Rothmans, the issue was whether the filter tip portion of a cigarette should be included in determining its length for purposes of the definition of “cigarette” in the Excise Act [R.S.C. 1970, c. E-12, s. 6 (am. R.S.C. 1970 (1st Supp.), c. 15, s. 3)]. The appellants sought to require the Minister to include the filter tip portion of a cigarette in determining its length for purposes of the definition. Although the appellants themselves did not have any interest in marketing the longer cigarettes, their complaint was that the departmental policy had the effect of conferring a competitive advantage on the respondent companies by permitting them to market a longer cigarette for the same amount of excise duty as was paid by the appellants. Le Dain J., for the Court, rejected the proposition that the appellants were persons aggrieved for purposes of the remedies sought, particularly since they were free to take advantage themselves of the existing possibility. He rejected the argument that the cases of Thorson v. Attorney General of Canada et al.[22] and Nova Scotia Board of Censors v. McNeil[23] indicated a relaxation of the requirement of standing, at least with regards to the circumstances of that case, since there was no constitutional issue raised and duty was not owed to the appellants, but to the Crown.

The law on standing was further developed with Borowski and Finlay.

In Borowski, the substantive question raised by the action for a declaration was whether the abortion provisions of the Criminal Code [R.S.C. 1970. c. C-34] were rendered inoperative by reason of conflict with the Canadian Bill of Rights. The majority and the minority were in agreement that no distinctions were to be drawn, for purposes of the issue of standing, between a declaratory action to obtain a decision as to the validity of a statute under the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] and a declaratory action to obtain a decision as to its operative effect in the face of the Canadian Bill of Rights. Finlay did not raise a constitutional question; it simply had to do with whether a recipient of provincial assistance to persons in need, who claimed to be prejudiced by certain provisions of a provincial legislation respecting such assistance, had standing to seek a declaration that payments made by the federal government to the province were illegal because the provincial Act did not comply with the conditions and undertakings to which the federal cost sharing payments were made subject by the federal legislation. Le Dain J. held that the judgments in Thorson, McNeil and Borowski could not be regarded as providing clear and direct authority for the recognition, as a matter of judicial discretion, of public interest standing so as to bring a non-constitutional challenge by way of declaration to challenge the statutory authority under which some administrative action is performed. These cases did not, however, clearly exclude such recognition.[24] He then stated that the matter before him was justiciable according to the known criteria, that the issue raised was a serious one, that the citizen had a genuine interest in it, and that no one with a more direct interest than the plaintiff was in a position to challenge the statutory authority to make the federal cost-sharing payments.[25] Standing was recognized not only for the declaratory relief but also for the ancillary injunctive relief that was sought.

The key reason why the notion of public interest was enlarged in Finlay stems, in my view, from the fact that the Court was concerned that it should have discretion to recognize public interest standing to bring an action for a declaration when there was no other reasonable way the matter could be brought to Court.[26] In Finlay, Le Dain J. was satisfied that the three cases of Thorson, McNeil, and Borowski did not exclude a recognition of standing so as to bring a non-constitutional challenge by way of declaratory relief. I am, for my part, inclined to think that with the addition of the Finlay case, the jurisprudence does not clearly exclude the possibility of extending standing to a proceeding in mandamus where there is a public interest to be expressed and there is no other reasonable way for it to be brought to court. Otherwise, a court could declare the law but could not make the order under it.

Contrary to Rothmans, the appellant, in the case at bar, is a person aggrieved in the sense that it suffers an economic loss as a consequence of the non-enforcement of the Act. But, at the same time, the Customs Tariff is not intended for the protection of distributors such as the appellant, but for the protection of Canadian producers.[27] The strict nature of its interest may therefore be difficult to define. On the other hand, the matter raised by the appellant is one of strong public interest and there may be no other way such an issue could be brought to the attention of the Court, were it not for the efforts of the appellant.

I need not, however, decide the issue of standing in view of the position I take on the second question which is whether it is shown that the Minister has failed in his duty.

The appellant, relying on the cases of R. v. Metropolitan Police Comr., Ex parte Blackburn[28] and Regina v. Comr. of Police of the Metropolis, Ex parte Blackburn (No. 3),[29] claims that the respondent, in waiving collection of duties in the one-dollar to four-dollar range, has not “done what he could under the existing system”. The policy adopted by the Minister with respect to the non-collection of such duty amounts, in its view, to a policy of doing nothing which is contrary to the terms of section 19 of the Act.

There is no doubt that, as in the case of the Commissioner of Police, in R. v. Metropolitan Police Comr., Ex parte Blackburn[30] the Minister “owe[s] the public a clear legal duty to enforce the law”. This implies that he must take all reasonable means to enforce the provisions of the Act. The reasonableness of those measures requires the assessment of policy considerations which are outside the domain of the courts since they deal with the manner in which the law ought to be enforced. What the appellant claims, however, is that the Minister is not doing all he can. An example of a voluntary measure suggested by the appellant at the hearing, and not used by the Minister, consists in the installation of collection boxes into which monies equivalent to the duty owed would be thrown by shoppers as they cross the border returning home.

It must be said at the outset that one of the purposes of the Customs Tariff is the collection of revenue. If the respondent finds that the cost of collecting duty and taxes from persons returning to Canada exceeds the amount collected, the Minister ought to have discretion so as to appropriately tailor the means to the end. If the enforcement of the Act leads to a depletion of revenues, the respondent cannot be said to be acting in conformity with the Act. In such cases, no more can reasonably be expected of him.

With regard to the appellant’s argument that the integrity of the revenue collection must be maintained and that a system of voluntary assessment might be established, there is evidence that the respondent is conscious of his responsibilities under the Customs Tariff. The difficulties he faces in the implementation of the Act represent valid considerations to be resolved if the enforcement is to be proceeded with. In a meeting held with the President of the appellant, in December 1989, the respondent indicated he was considering means to enable his officials to collect small amounts of duties without, at the same time, causing unreasonable border delays.[31] The respondent is limited in his operations by such elements as budget constraints, limited facilities, personnel requirements, etc.[32] To compel him to proceed the way the appellant is asking this Court to direct him would be to enter into an area where the respondent, by necessity, must be the only one to manoeuvre. A voluntary assessment, as suggested by the appellant, with no reasonable means of checking its accuracy, might have the contrary effect of belittling the assessment process. It might provide very little encouragement to the taxpayer who would be given no receipt as evidence of duty paid by him. Protective measures may be necessary to ensure the integrity of the monies collected, the costs of which are unknown at present.

The result, in my view, becomes obvious. Only he who is charged with such public duty can determine how to utilize his resources. This is not a case where the Minister has turned his back on his duties, or where negligence or bad faith has been demonstrated. It is a case where the Minister has established difficulties in implementation and where he enjoys a discretion with which the law will not interfere.

I would dismiss this appeal with costs.

Pratte J.A.: I agree.

Stone J.A.: I agree.

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