Martin,
JA:—The
Attorney
General
of
Canada
applies
for
leave
to
appeal
and,
if
leave
be
granted,
appeals
from
the
decision
of
Mr
Justice
Labrosse,
dismissing
an
appeal
by
the
Attorney
General
of
Canada
by
way
of
stated
case
from
an
order
of
Provincial
Court
Judge
Vanek
dismissing
four
charges
against
the
respondent,
under
the
Income
Tax
Act,
SC
1970-71-72,
c
63,
for
failure
to
file
a
return
after
a
demand
was
made
upon
him.
The
respondent
was
charged
in
an
information
containing
eight
counts,
each
of
which
charged
him
with
an
offence
of
failing
to
file
a
return,
following
a
demand
made
upon
him
on
August
27,
1976,
pursuant
to
subsection
150(2)
of
the
Income
Tax
Act,
contrary
to
Subsection
238(1)
of
the
Act.
Count
one
charged
the
respondent
with
the
offence
of
failing
on
November
4,
1976
to
make
a
return
for
the
taxation
year
1972.
Count
two
charged
the
respondent
with
failing
on
November
5,
1976
to
make
a
return
for
the
taxation
year
1972.
Counts
three
and
four
charged
offences
of
failing
on
the
same
dates
(that
is,
November
4
&
5,
1976)
to
file
a
return
for
the
taxation
year.
1973.
Counts
five
and
six
charged
offences
of
failing
on
the
same
dates
to
file
a
return
in
relation
to
the
taxation
year
1974.
Counts
seven
and
eight
charged
offences
of
failing
on
the
same
dates
to
file
a
return
in
relation
to
the
taxation
year
1975.
Thus,
the
respondent
was
charged
with
having
committed
on
successive
days
two
separate
offences
of
failing
to
file
a
return
in
relation
to
each
taxation
year.
The
respondent
pleaded
guilty
to
counts
one,
three,
five
and
seven,
that
is,
to
the
counts
which
alleged
the
commission
of
an
offence
for
failing
to
file
a
return
on
November
4,
1976,
following
a
demand
made
upon
him,
in
relation
to
each
of
the
taxation
years
1972-5
inclusive.
The
trial
judge
then
dismissed
counts
two,
four,
six
and
eight,
that
is,
the
counts
charging
the
commission
of
an
offence
on
November
5,
1976,
by
failing
to
file
a
return
for
each
of
the
taxation
years
in
question.
The
learned
trial
judge
was
of
the
opinion
that
the
failure
to
file
a
return,
following
a
demand,
was
a
single
offence,
and
that
each
day
of
default
did
not
constitute
a
separate
offence.
He
also
held
that
the
failure
to
file
a
return
in
relation
to
a
taxation
year
following
a
demand
made
constituted
a
single
matter,
and
that
the
decision
of
the
Supreme
Court
of
Canada
in
Kienapple
v
The
Queen
(1974),
15
CCC
(2d)
524,
precluded
more
than
one
conviction
for
the
same
matter.
With
deference,
we
are
unable
to
agree
with
the
reasoning
of
the
trial
judge.
We
are
all
of
the
view
that
the
failure
on
each
successive
day
to
file
the
return,
after
demand,
constituted
a
separate
offence
under
subsection
238(1)
of
the
Income
Tax
Act.
Subsection
238(1)
of
the
Act
reads:
(1)
Every
person
who
has
failed
to
file
a
return
as
and
when
required
by
or
under
this
Act
or
a
regulation
is
guilty
of
an
offence
and,
in
addition
to
any
penalty
otherwise
provided,
liable
on
summary
conviction
to
a
fine
of
not
less
than
$25
for
each
day
of
default.
In
Regina
v
Smith,
[1958]
OWN
277,
McRuer,
CJHC
held
that
the
failure
on
each
successive
day
to
file
a
return
constituted
a
separate
offence
under
tne
provisions
of
subsection
131(1)
of
the
Income
Tax
Act,
RSC
1952,
c
148,
the
predecessor
of
subsection
238(1).
In
that
case,
the
accused
had
been
charged
for
failure
to
make
a
return
on
July
17,
and
further
charged
for
failure
to
make
a
return
on
July
18.
In
respect
of
the
second
charge,
the
Magistrate
held
that
he
could
not
convict
because
the
charge
was
for
the
same
offence
as
the
previous
charge.
The
present
subsection
238(1)
of
the
Income
Tax
Act
is
in
the
Same
words
as
subsection
131(1)
which
was
considered
by
McRuer,
CJHC
in
Regina
v
Smith,
supra.
McRuer,
CJHC
said
at
278:
On
the
main
question
authorities
are
quite
clear.
The
offence
created
by
section
131
is
a
continuing
offence
for
which
the
offender
is
liable
to
prosecution
from
day
to
day
until
he
files
a
return.
To
hold
otherwise
would
put
a
construction
on
the
section
that
would
defeat
its
purpose.
Its
purpose
is
to
compel
persons
coming
within
its
scope
to
file
income
tax
returns.
That
purpose
could
not
be
accomplished
if,
after
conviction,
the
offender
should
be
immune
from
prosecution
although
continuing
to
fail
to
file
the
income
tax
return
required
by
the
section.
He
said
at
280:
I
have
therefore
come
to
the
conclusion
that
the
information
charging
an
offence
on
July
18,
1957
did
not
charge
the
same
offence
for
which
the
accused
was
convicted,
ie
a
charge
that
the
accused
did
on
July
17
fail
to
file
a
return
under
the
Income
Tax
Act.
Kienapple
v
The
Queen,
supra,
precludes
more
than
one
conviction
for
the
same
matter
or
delict.
We
think
it
is
quite
clear
that
under
the
Income
Tax
Act,
each
day
of
default
constitutes
a
separate
matter
or
delict
and
hence
the
principle
in
Kienapple
v
The
Queen,
supra,
does
not
apply.
Dean
Friedland,
in
his
well
known
work
Double
Jeopardy
(Oxford:
Clarendon
Press,
1969),
says
at
217:
As
pointed
out
above,
the
rule
preventing
multiple
convictions
must
give
way
to
a
Clear
legislative
intent;
and
there
are
numerous
statutes
which
provide
specifically
for
cumulative
penalties,
such
as
a
certain
penalty
for
each
day
that
the
offence
continues.
Accordingly,
leave
to
appeal
is
granted,
the
appeal
is
allowed,
the
acquittal
is
set
aside,
and
the
matter
is
remitted
to
the
summary
conviction
court
with
our
opinion.