By
The
Court:—These
are
summary
conviction
appeals.
The
appeals
to
this
court
are,
therefore,
restricted
to
questions
of
law.
As
will
be
seen,
they
raise
a
number
of
questions
of
law,
the
principal
one
being
the
validity
of
the
procedure
for
appeals
from
the
trial
court
to
the
summary
conviction
appeal
court
provided
by
Part
XXIV
of
the
Criminal
Code,
R.S.C.
1970,
c.
C-34.
There
were
two
separate
informations.
The
first
information
related
to
the
appellant
Urbano
L.
Ramos
(Ramos)
only.
It
charged
that:
URBANO
L.
RAMOS
.
.
.
unlawfully
did
in
the
Township
of
Ekfrid,
in
the
County
of
Middlesex
or
elsewhere
in
the
Province
of
Ontario,
between
the
31
day
of
December,
1977
and
the
22nd
day
of
August,
1981,
wilfully
evade
the
payment
of
$29,515.70
in
taxes
imposed
on
him
by
the
Income
Tax
Act,
R.S.C.
1952,
Chapter
148,
as
amended,
by
failing
to
report
income
in
the
sum
of
$25,000.00
for
the
taxation
year
1978
and
$75,000.00
for
the
taxation
year
1980,
and
he
has
thereby
committed
an
offence
contrary
to
Section
239(1)(d)
of
the
said
Act.
The
second
information
related
to
both
the
appellant
Ramos
and
the
appellant
Century
21
Ramos
Realty
Inc.
(Ramos
Realty).
It
charged
that:
CENTURY
21
RAMOS
REALTY
INC.
(formerly
known
as
L.
Ramos
Realty
Limited)
.
.
.
and:
URBANO
L.
RAMOS
.
.
.
being
an
officer,
director
or
agent
of
the
said
Century
21
Ramos
Realty
Inc.,
(formerly
known
as
L.
Ramos
Realty
Limited)
unlawfully
did
in
the
City
of
London,
in
the
County
of
Middlesex
or
elsewhere
in
the
Province
of
Ontario,
between
the
31st
day
of
December,
1977
and
the
4th
day
of
July,
1979
wilfully
evade
the
payment
of
$15,000.00
in
taxes
imposed
by
the
Income
Tax
Act,
R.S.C.
1952,
Chapter
148,
as
amended,
upon
the
said
L.
Ramos
Realty
Limited,
by
failing
to
report
income
in
the
sum
of
$100,000.00
for
the
taxation
year
1978,
and
they
have
thereby
committed
an
offence
contrary
to
Section
239(1)(d)
of
the
said
Act.
Section
239
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148,
as
amended,
creates
a
hybrid
offence.
The
Crown
elected
to
proceed
summarily.
The
trial
on
the
first
information
commenced
on
July
27,
1983.
Following
the
completion
of
the
evidence
on
the
first
information,
the
appellant
was
arraigned
on
the
second
information,
and
counsel
agreed
that
the
evidence
called
on
the
first
information
would
apply
to
the
second
information.
It
was
not
suggested
that
the
procedure
followed
infringed
the
principle
laid
down
in
Phillips
and
Phillips
v.
The
Queen
(1983),
8
C.C.C.
(3d)
118.
At
the
close
of
the
Crown's
case
on
the
second
information,
defence
counsel
moved
for
an
acquittal
on
both
informations.
The
provincial
judge
granted
the
motions.
With
respect
to
both
informations,
he
held
that
on
a
charge
under
paragraph
239(1)(d)
of
the
Income
Tax
Act,
it
is
essential
for
the
Crown
to
prove
that
an
assessment
has
been
made
pursuant
to
section
152
of
the
Act
before
the
charge
has
been
laid,
and
the
Crown
had
failed
to
do
so.
With
respect
to
the
second
information,
he
held
that
it
was
essential
for
the
Crown
to
prove
that
the
tax
payable
($15,000)
had
not
been
paid,
and
the
Crown
had
failed
to
do
this,
notwithstanding
the
filing
by
it
of
the
income
tax
return
of
the
company
for
the
taxation
year
1978
which
showed
income
of
$6,747
and
tax
due
of
$1,012.
An
appeal
was
taken
by
way
of
stated
case
from
the
decision
of
the
provincial
judge
to
Ewaschuk,
J.
who
allowed
the
appeal.
In
a
short
endorsement,
he
ruled
that
the
provincial
judge
had
erred
on
both
grounds.
The
defendants
then
appealed
to
this
Court.
The
appeal
was
dismissed.
On
the
ground
common
to
both
informations,
the
Court
held
that
on
a
charge
under
paragraph
239(1)(d)
of
the
Income
Tax
Act,
it
is
not
essential
for
the
Crown
to
prove
that
prior
to
the
charge
being
laid
an
assessment
has
been
made
pursuant
to
section
152
of
the
Act.
On
the
ground
which
related
to
the
second
information
only,
it
held
that
there
was
evidence
that
the
tax
had
not
been
paid
in
that
the
tax
return
for
the
company
for
the
taxation
year
1978,
filed
as
an
exhibit
by
the
Crown,
did
not
disclose
the
$100,000
income
which
the
Crown
alleged
had
been
wilfully
omitted
from
the
company's
tax
return
with
a
view
to
avoiding
tax.
The
trial
then
continued
before
the
provincial
judge.
At
the
conclusion
of
the
case,
the
provincial
judge
in
a
short,
oral
judgment
acquitted
the
appel-
lants.
The
Crown
appealed
to
the
District
Court.
After
hearing
argument,
the
summary
conviction
appeal
court
judge
reserved
judgment.
In
a
long,
carefully
reasoned
judgment,
he
set
aside
the
acquittals
and
found
the
appellants
guilty
as
charged.
The
appellants
have
appealed
to
this
court
pursuant
to
section
771
of
the
Criminal
Code.
The
appellants
served
notice
on
the
respondent
and
on
the
Attorney
General
of
Ontario
of
their
intention
to
argue
a
constitutional
question,
namely,
the
validity
of
sections
613(4),
748,
755
and
771
of
the
Criminal
Code.
The
Attorney
General
of
Ontario
saw
fit
to
intervene,
filed
an
intervenantes
factum,
and
was
represented
on
the
arguments
of
the
appeal.
1.
Facts
Prior
to
trial,
the
parties
agreed
in
a
letter
upon
certain
facts.
Unfortunately,
the
letter
of
agreed
facts
is
not
as
clear
as
it
might
be,
and
what
is
worse,
as
will
be
seen,
some
of
the
statements
contained
in
it
are
contradictory.
Ramos
was
the
president
and
sole
shareholder
of
Ramos
Realty,
a
company
engaged
in
the
real
estate
brokerage
business.
In
1978,
Ramos
Realty
acted
for
the
vendor,
Baycrest
Consolidated
Holdings
Limited
(Baycrest)
in
the
sale
of
certain
properties
on
the
south
side
of
Huron
Street
in
the
City
of
London,
known
as
the
Dorvan
Apartments.
The
sale
price
was
$5,350,000,
and
the
vendor
agreed
to
pay
Ramos
Realty
a
commission
of
$125,000
for
its
services
in
procuring
the
offer.
The
purchaser
of
the
property,
a
company
known
as
388144
Ontario
Limited
(388144),
did
not
have
sufficient
funds
to
close
the
transaction.
It,
therefore,
arranged
with
Baycrest
and
Ramos
Realty
that
as
part
of
the
purchase
price,
it
would
assume
the
liability
for
payment
of
the
$125,000
real
estate
commission
due
to
Ramos
Realty.
It
is
the
events
surrounding
the
payment
of
the
$125,000
by
388144
which
give
rise
to
the
charges
against
the
appellants.
388144
was
incorporated
under
the
Business
Corporations
Act,
R.S.O.
1970,
c.
53
on
June
16,
1978.
It
was
incorporated
for
the
purpose
of
buying
the
Dorvan
Apartments.
The
authorized
capital
of
the
corporation
was
$40,000
divided
into
40,000
shares
of
no
par
value.
The
money
to
purchase
the
apartments
was
provided
by
a
number
of
investors.
A
person
who
invested
in
the
company
received
shares
and
a
promissory
note.
The
financial
statement
of
the
company
for
the
period
ending
June
30,
1979,
showed
815
common
shares
issued
for
a
cash
consideration
of
$815
and
notes
payable
to
shareholders
of
$814,185.
On
July
13,
1978,
388144
issued
25
common
shares
to
Ramos
in
his
personal
capacity.
By
letter
dated
September
18,
1978,
Paul
Downs,
the
solicitor
for
388144
in
the
purchase
of
the
Dorvan
Apartments,
forwarded
the
shares
to
Ramos.
In
his
letter,
he
said:
I
enclose
herewith
Share
Certificates
representing
the
shares
you
purchased
in
the
above
Company
[388144],
at
a
cost
of
$1,000.00
per
share.
The
letter
of
agreed
facts
states
that
“Paul
Downs
never
received
instructions
from
Ramos
that
the
shares
were
not
to
be
issued
to
him
personally”.
On
November
20,
1978,
Ramos
Realty
wrote
to
Baycrest
to
confirm
that
the
amount
of
outstanding
commission
on
the
sale
of
the
Dorvan
Apartments
was
$100,000.
On
November
23,
1978,
Paul
Downs
executed
an
undertaking
in
writing
addressed
to
Baycrest
and
their
solicitors
to
obtain
a
full
and
final
release
from
Ramos
Realty
with
respect
to
the
balance
of
the
real
estate
commission
of
$100,000
on
the
sale
of
the
Dorvan
Apartments.
The
letter
of
agreed
facts
states
that
these
two
documents
indicate
that
by
November
1978,
the
real
estate
commission
owed
to
Ramos
Realty
“had
been
reduced
by
$25,000
which
was
the
25
shares
and
the
promissory
note
paid
to
Ramos
by
388144”.
As
the
summary
conviction
appeal
court
judge
pointed
out,
this
cannot
be
so,
since,
as
will
be
seen,
the
promissory
note
was
not
in
existence
at
this
time.
On
December
6,
1978,
388144
paid
$25,000
to
Ramos
Realty.
The
fiscal
year
end
of
Ramos
Realty
was
December
31,
and
this
amount
was
included
by
Ramos
Realty
in
income
in
its
tax
return
for
the
year
1978.
Since
this
payment
was
reported
by
Ramos
Realty
as
income,
it
forms
no
part
of
the
charges
against
the
appellants.
In
December
1978,
388144
executed
a
mortgage
for
$75,000
on
the
Dor-
van
Apartments
to
Ramos
Realty
as
mortgagee.
The
mortgage
is
dated
December
11,
1978.
It
was
payable
in
full
on
November
23,
1979,
and
repayment
was
personally
guaranteed
by
two
of
the
officers
of
388144.
The
mortgage
was
not
shown
in
the
financial
statement
of
Ramos
Realty
filed
with
its
tax
return
for
the
year
ending
December
31,
1978,
nor
was
it
ever
reported
as
income
by
Ramos
Realty.
Although
the
date
is
unclear
—
presumably
it
was
some
time
in
1979
—
the
principals
of
388144
realized
that
an
error
had
been
made
in
issuing
the
25
shares
for
$25,000
and
that
they
should
only
have
been
issued
for
$25.
It
was
agreed,
therefore,
with
Ramos
that
his
25
shares
had
a
value
of
$25,
and
the
company
executed
a
promissory
note
dated
October
15,
1979,
to
Ramos
for
$24,975.
The
note
was
payable
July
31,
1981,
or
on
the
sale
of
the
property
(the
note
does
not
identify
the
property
but
it
was
clearly
the
Dorvan
Apartments),
whichever
first
occurred.
Again,
the
letter
of
agreed
facts
states
that
"Paul
Downs
never
received
instructions
from
Ramos
that
the
note
was
not
to
be
issued
to
Ramos
personally”.
A
list
of
the
shareholders
of
388144
from
the
working
papers
of
its
accountants
showed
Ramos
as
the
holder
of
25
of
the
815
issued
common
shares
shown
on
the
company's
balance
sheet
for
the
period
ending
June
30,
1979.
The
letter
of
agreed
facts
is
confusing
and
to
some
extent
contradictory
on
the
date
on
which
the
promissory
note
was
issued
to
Ramos.
In
para.
7,
the
letter
states
that
388144
paid
the
$125,000
commission
as
follows:
—
$25,000
in
shares
.
.
.
of
388144
Ontario
Limited
and
a
promissory
note
.
.
.
from
388144
to
Urbano
Ramos
personally
in
1978;
[our
italics].
However,
para.
8
states:
Exhibit
2F,
a
promissory
note
dated
October
15,
1979
was
subsequently
issued
by
388144
Ontario
Limited
to
Urbano
Ramos
personally
and
replaced
$24,975.00
worth
of
consideration
of
the
$25,000
worth
of
shares
referred
to
above.
This
substitution
was
necessitated
when
the
company
realized
it
had
exceeded
its
share
capital
authorization
allowed
by
its
Charter.
[our
italics].
Then,
in
para.
10,
it
contains
the
sentence
which
we
have
quoted
earlier
that
the
letter
of
November
20,
1978,
and
the
undertaking
of
November
23,
1978,
indicate
that
by
November
1978,
the
real
estate
commission
owed
to
Ramos
Realty
by
388144
of
$125,000
had
been
reduced
by
$25,000
which
was
the
25
shares
and
the
promissory
note.
At
the
trial,
the
Crown
called
Mario
Ferreira,
the
president
of
388144,
as
a
witness
for
the
prosecution.
His
evidence
is
equally
confusing
as
to
the
date
when
the
note
was
issued.
Crown
counsel
at
the
trial
seems
to
have
been
unaware
of
the
problem.
The
letter
of
agreed
facts
states
that
the
mortgage
of
December
11,
1978,
was
discharged
December
12,
1979,
and
on
the
same
day
a
new
mortgage
was
placed
on
the
Dorvan
Apartments
from
388144
to
409668
Ontario
Limited
(409668).
If
the
discharge
and
mortgage
are
examined,
they
indicate
that
they
were
executed
and
registered
not
in
1979
but
in
1980.
The
discharge
was
clearly
executed
and
registered
on
March
4,
1980.
The
only
thing
that
links
the
new
mortgage
to
1979
is
the
date
on
the
first
page
of
December
12,
1979.
The
affidavit
of
execution
by
the
guarantor
is
sworn
February
14,
1980,
and
the
affidavit
as
to
age
and
spousal
status,
which
contains
a
declaration
for
the
purpose
of
the
Planning
Act
and
the
Income
Tax
Act
is
also
sworn
on
February
14,
1980.
The
mortgage
was
registered
March
4,
1980,
the
same
day
as
the
discharge.
Again,
Crown
counsel
at
the
trial
does
not
appear
to
have
directed
her
attention
to
the
matter,
and
it
is
not
mentioned
in
the
judgments
below.
Accordingly,
we
must
decide
these
appeals
on
the
basis
of
the
statements
contained
in
the
letter
of
agreed
facts,
1.
e.,
that
the
mortgage
of
December
11,
1978,
was
discharged
and
replaced
by
a
new
mortgage
to
409668
on
December
12,
1979.
409668
was
a
corporation
of
which
Ramos
was
the
sole
shareholder
and
director.
The
new
mortgage
was
payable
in
full
on
November
23,
1980.
Interest
ran
from
November
23,
1979.
Payment
was
personally
guaranteed
by
one
of
the
officers
of
388144.
By
an
assignment
of
mortgage
dated
March
3,
1980
and
registered
March
6,
1980,
409668
assigned
the
new
mortgage
to
the
Bank
of
Montreal
as
collateral
security
for
a
loan
of
$35,000
to
409668.
2.
Evasion
of
Tax
as
Charged
in
the
Second
Information
We
believe
it
is
more
convenient
to
deal
first
with
the
alleged
evasion
of
tax
as
charged
in
the
second
information.
There
is
no
doubt
that
Ramos
Realty
had
earned
the
$125,000
commission
in
1978,
and
should,
therefore,
have
reported
it
as
income
in
that
year.
This
is
clear
from
paragraph
12(1)(b)
of
the
Income
Tax
Act
which
provides:
12.(1)
There
shall
be
included
in
computing
the
income
of
a
taxpayer
for
a
taxation
year
as
income
from
a
business
or
property
such
of
the
following
amounts
as
are
applicable:
(b)
any
amount
receivable
by
the
taxpayer
in
respect
of
property
sold
or
services
rendered
in
the
course
of
a
business
in
the
year,
notwithstanding
that
the
amount
or
any
part
thereof
is
not
due
until
a
subsequent
year,
unless
the
method
adopted
by
the
taxpayer
for
computing
income
from
the
business
and
accepted
for
the
purpose
of
this
Part
does
not
require
him
to
include
any
amount
receivable
in
computing
his
income
for
a
taxation
year
unless
it
has
been
received
in
the
year,
and
for
the
purposes
of
this
paragraph,
an
amount
shall
be
deemed
to
have
become
receivable
in
respect
of
services
rendered
in
the
course
of
a
business
on
the
day
that
is
the
earlier
of
(i)
the
day
upon
which
the
account
in
respect
of
the
services
was
rendered,
and
(ii)
the
day
upon
which
the
account
in
respect
of
those
services
would
have
been
rendered
had
there
been
no
undue
delay
in
rendering
the
account
in
respect
of
the
services;
In
acquitting
the
appellants
on
the
second
information,
the
provincial
judge
said
that
the
mortgage
and
the
promissory
note
were
given
for
the
$100,000
which
it
was
alleged
that
Ramos
Realty
had
failed
to
report
and
that
the
mortgage
and
the
note
were
not
due
until
1979
and
1981
respec
tively.
While
what
the
provincial
judge
stated
was
undoubtedly
true,
with
respect,
it
in
no
way
affects
the
liability
of
Ramos
Realty
for
tax
on
the
commission.
The
provincial
judge
concluded
his
reasons
for
acquitting
the
appellants
by
stating
that
“I
find
that
there
is
no
evidence
of
any
appropriation
during
the
1978
and
1980
years”.
With
respect,
this
also
was
wrong.
While
“appropriation”
is
a
relevant
consideration
for
the
first
information,
it
has
no
relevance
for
the
second:
the
issue
on
the
second
information
was
whether
the
commission
was
an
“amount
receivable”
falling
within
paragraph
12(1)(b)
of
the
Income
Tax
Act.
The
provincial
judge
thus
erred
in
law
in
his
reasons
for
acquitting
the
appellants
on
the
second
information,
and
counsel
for
the
appellants
did
not
attempt
to
support
them.
Rather,
he
submitted
that
there
was
a
legal
impediment
or
condition
precedent
to
the
payment
of
the
commission
to
Ramos
Realty,
and
hence
it
did
not
have
to
be
reported
as
income
for
the
taxation
year
1978:
see
M.N.R.
v.
John
Colford
Contracting
Co.
Ltd.,
[1960]
C.T.C.
178;
60
D.T.C.
1131
(Ex.Ct.),
and
A.G.
Rodgers
Real
Estate
Ltd.
v.
M.N.R.,
[1984]
C.T.C.
2051;
84
D.T.C.
1034
(T.C.C.).
The
legal
impediment
or
condition
precedent
to
payment
flowed,
counsel
contended,
from
a
letter
written
by
William
Ash
of
the
legal
firm
of
Ash
and
Cale,
the
solicitors
for
Baycrest,
to
Paul
Downs,
the
solicitor
for
388144,
on
November
21,
1978.
In
the
letter,
Mr.
Ash
detailed
the
amounts
required
to
discharge
the
third
and
fourth
mortgages
received
by
Baycrest
from
388144
on
closing
and
set
out
certain
amounts
that
could
be
properly
deducted
from
the
amounts
owing
on
the
mortgages.
One
of
the
deductions
was
$75,000,
being
the
real
estate
commission
owing
to
Ramos
Realty.
Mr.
Ash
in
his
letter
put
the
matter
this
way:
I
also
confirm
that
it
is
in
order
for
you
to
deduct
from
the
balance
of
$75,000.00
being
the
balance
of
real
estate
commission
payable
subject
to
your
providing
me
with
a
release
from
the
real
estate
agent
before
the
discharges
of
the
two
mortgages
will
be
released.
In
the
letter
of
agreed
facts,
it
is
acknowledged
that
Mr.
Ash
was
in
error
as
to
the
amount
of
commission
owing
to
Ramos
Realty
and
that
the
correct
amount
was
$100,000
not
$75,000.
The
release
requested
by
Mr.
Ash
was
executed
by
Ramos
Realty
on
February
27,
1979,
and
was
sent
to
Ash
and
Cale
by
Mr.
Downs
on
February
28,
1979.
The
release
did
not
refer
to
any
specific
sum;
it
merely
acknowledged
that
Ramos
Realty
had
received
“its
commission
in
full
re
the
sale
of
the
Dorvan
Apartments”.
On
this
point,
the
learned
summary
appeal
court
judge
said:
I
cannot
accept
that
argument.
Firstly,
the
issue
between
Baycrest
and
388144
was
payment
in
full
of
the
purchase
price.
Obviously,
Baycrest
was
not
willing
to
provide
discharges
of
the
mortgages
from
388144
until
it
was
satisfied
that
the
purchase
price
had
been
paid
in
full
and
this
entailed
performance
by
388144
of
its
agreement
to
pay
the
real
estate
commission
to
Ramos
Realty.
As
soon
as
the
sale
had
been
completed,
the
commission
was
earned
by
Ramos
Realty.
The
only
issue
then
was
how
the
commission
was
to
be
paid.
Because
of
the
circumstances
outlined
above,
388144
agreed
to
pay
the
commission.
As
between
the
person
responsible
to
pay
the
commission
(388144)
and
the
person
entitled
to
receive
the
commission
(Ramos
Realty),
there
was
no
condition
precedent
or
legal
impediment
to
the
payment
of
the
commission.
The
commission
had
been
fully
earned
at
that
time.
The
only
issue
was,
failing
388144’s
ability
to
make
immediate
payment,
what
arrangements
would
be
made
to
secure
future
payment
of
the
commission?
The
cases
relied
upon
by
Mr.
Giffen
are
distinguishable
on
their
facts
and
do
not
assist
him.
I
conclude
that
the
transaction
in
question
falls
squarely
within
s.
12(1)(b)
of
the
Income
Tax
Act
and
that
the
commission
of
$100,000.00
should
have
been
included
in
computing
the
income
of
Ramos
Realty
in
the
1978
taxation
year.
We
agree
with
this
reasoning.
The
request
by
Mr.
Ash
was,
in
our
opinion,
only
a
request
for
a
receipt
and
was
not
a
legal
impediment
or
condition
precedent
to
the
payment
of
the
commission
by
388144.
The
$100,000
should,
therefore,
have
been
included
as
income
by
Ramos
Realty
for
the
year
1978.
We
shall
deal
subsequently
with
the
personal
liability
of
Ramos
on
the
second
information.
3.
Evasion
of
Tax
by
Ramos
on
Income
of
$25,000
for
the
Taxation
Year
1978
as
Charged
in
the
First
Information
On
the
failure
to
report
income
in
the
sum
of
$25,000
for
the
taxation
year
1978,
the
provincial
judge
accepted
the
evidence
of
the
Crown
witness
Mario
Ferreira,
the
president
of
388144,
that
the
share
certificates
had
only
a
value
of
$25,
not
$25,000,
in
the
taxation
year
1978.
Accordingly,
he
acquitted
Ramos
of
this
charge.
The
evidence
on
the
value
of
the
shares
in
the
taxation
year
1978
is
confusing,
and
the
letter
of
agreed
facts,
as
we
have
pointed
out,
does
not
assist
in
clarifying
the
issue.
In
our
opinion,
there
was
evidence
to
support
the
finding
of
the
provincial
judge
that
the
shares
had
a
value
of
only
$25
in
1978.
This
being
so,
the
summary
conviction
appeal
court
judge
should
not
have
interfered
with
that
finding.
In
his
reasons,
the
summary
conviction
appeal
court
judge
directed
his
mind
to
the
issue
of
what
the
result
would
have
been
if
he
was
wrong,
and
the
shares
had
a
value
of
only
$25
in
1978.
He
was
of
the
opinion
that
Ramos
should
still
have
reported
$25,000
in
his
1978
tax
return
since
all
of
the
parties
concerned,
including
Ramos,
were
of
the
belief
that
the
shares
had
a
value
of
$25,000.
With
respect,
we
do
not
agree.
The
belief
of
Ramos,
in
our
judgment,
was
immaterial.
Paragraph
15(1)(b)
of
the
Income
Tax
Act
provides:
15.(1)
Where
in
a
taxation
year
(b)
funds
or
property
of
a
corporation
have
been
appropriated
in
any
manner
whatever
to,
or
for
the
benefit
of,
a
shareholder,
.
.
.
the
amount
or
value
thereof
shall
.
.
.
be
included
in
computing
the
income
of
the
shareholder
for
the
year.
It
is
thus
only
the
"amount
or
value”
of
the
property
appropriated
to
or
for
the
benefit
of
the
shareholder
that
must
be
included
in
computing
the
income
of
the
shareholder
for
the
taxation
year.
Since
there
was,
as
we
have
noted,
evidence
to
support
the
finding
of
the
provincial
judge
that
the
value
of
the
shares
in
1978
was
only
$25,
the
summary
conviction
appeal
court
judge
erred
in
law
in
finding
that
it
was
incumbent
upon
Ramos
to
report
$25,000
of
income
for
the
1978
taxation
year.
We
shall
deal
later
with
the
effect
of
this
error.
4.
Evasion
of
Tax
by
Ramos
on
Income
of
$75,000
for
the
Taxation
Year
1980
as
Charged
in
the
First
Information
This
portion
of
the
appeal
was
argued
on
the
basis
that
the
discharge
of
the
mortgage
of
December
11,
1978,
and
the
giving
of
the
new
mortgage
both
occurred
on
December
12,
1979.
There
is,
as
has
been
pointed
out,
considerable
evidence
that
the
documents
were
not,
in
fact,
executed
until
February
and
March
of
1980.
However,
assuming,
as
we
must,
that
the
doc-
uments
were
given
in
1979,
was
the
information
in
error
when
it
charged
tax
evasion
for
the
year
1980?
The
answer
to
this
question
turns
on
subsection
15(1)
of
the
Income
Tax
Act
which
we
have
quoted
above.
The
Crown
called
an
expert
witness,
Gilbert
J.
Claerhout,
an
employee
of
Revenue
Canada.
On
the
assumption
that
the
mortgage
of
December
11,
1978,
was
discharged
and
the
new
mortgage
to
409668
was
registered
on
December
12,
1979,
he
was
of
the
opinion
that
Ramos
had
appropriated
the
mortgage
in
1979.
However,
because
409668
had
a
fiscal
year
end
of
February
29,
1980,
and
because
409668
could
up
to
that
date
have
taken
remedial
steps
to
correct
the
situation,
he
was
of
the
view
that
there
was
also
an
appropriation
in
1980.
Up
until
February
29,
1980,
according
to
Mr.
Claerhout,
because
of
the
year
end
of
409668
which
straddled
1979
and
1980,
Ramos
had
the
option
of
reporting
the
$75,000
in
either
1979
or
1980.
On
the
basis
of
Mr.
Claerhout's
evidence,
the
provincial
judge
held
that
the
appropriation
had
occurred
in
1979,
not
in
1980,
and
hence
Ramos
should
be
acquitted.
The
summary
conviction
appeal
court
judge
came
to
the
opposite
conclusion.
He
accepted
Mr.
Claerhout's
evidence
that
Ramos
had
an
option
to
report
the
$75,000
as
income
in
1979
or
1980.
He
concluded,
therefore,
that
the
Crown
had
proved
beyond
a
reasonable
doubt
that
having
failed
to
declare
the
income
in
1979,
Ramos
was
obligated
to
report
it
in
1980
and
having
failed
to
do
so,
he
was
guilty
of
failing
to
report
income
of
$75,000
for
the
taxation
year
1980
as
charged
in
the
first
information.
With
respect,
we
do
not
believe
that
the
witness
Claerhout
should
have
been
permitted
to
give
an
opinion
as
to
when
the
appropriation
occurred.
It
was
a
question
of
law
for
the
judge
as
to
what
constitutes
an
appropriation.
It
was
for
the
judge
to
determine,
in
compliance
with
the
legal
definition,
if
and
when
an
appropriation
took
place.
This
was
not
something
on
which
an
expert
witness
could
give
evidence.
The
Income
Tax
Act
does
not
define
the
word
"appropriate".
It
is,
however,
a
common
English
word.
The
Shorter
Oxford
English
Dictionary
gives
the
following
definitions:
"1.
to
make
over
to
any
one
as
his
own;
.
.
.
2.
To
take
for
one's
own,
or
to
oneself
.
.
.”.
In
our
opinion,
the
mortgage
was
taken
by
Ramos
as
his
own
in
1980,
and
the
provincial
judge
erred
in
law
in
finding
that
the
appropriation
occurred
in
1979.
The
Crown
called
as
a
witness
a
chartered
accountant,
Gregory
Francis
Mosey,
the
accountant
for
Ramos,
Ramos
Realty
and
409668
during
the
years
1979
and
1980.
He
testified
that
he
received
instructions
from
Ramos
for
the
preparation
of
the
financial
statement
of
409668
for
the
fiscal
period
ending
February
29,
1980.
On
the
financial
statement
of
409668
for
that
period,
there
is
shown
a
mortgage
receivable
from
388144
of
$75,000.
Mr.
Mosey
gave
evidence
that
on
April
17,
1980,
he
discussed
this
mortgage
with
Ramos.
He
was
informed
by
Ramos
that
Ramos
had
been
holding
the
mortgage
personally;
he
was
never
told
that
the
mortgage
was
the
property
of
Ramos
Realty.
In
his
adjusting
entries
for
the
year
end,
Mr.
Mosey
debited
accounts
receivable
$75,000
and
credited
the
amount
due
to
shareholder
(Ramos)
$75,000.
The
amount
due
to
shareholder
of
$75,000
appeared
on
the
balance
sheet
of
the
company
under
the
heading
“Current
Liabilities"
and
was
included
in
the
item
"Due
to
shareholder"
of
$121,453.
The
financial
statement
was
not
finalized
by
Mr.
Mosey
until
the
end
of
April
1980.
The
witness
testified
that,
as
a
result
of
the
way
in
which
the
mortgage
had
been
handled,
Ramos
could
have
drawn
the
amount
due
to
him
out
of
the
company
tax
free.
In
light
of
the
evidence
of
the
witness
Mosey,
we
are
of
the
opinion
that
Ramos
did
not
appropriate
the
mortgage
until
1980.
It
was
only
in
April
1980,
when
Ramos
informed
Mr.
Mosey
that
the
mortgage
was
owned
by
him
personally
and
the
financial
statement
of
409668
was
finalized,
that
Ramos
had
irrevocably
made
the
mortgage
his
own.
The
appropriation
of
the
mortgage
occurred,
therefore,
in
1980.
The
fact
that
the
mortgage
was
given
to
409668
and
not
directly
to
Ramos
is
covered
by
subsection
56(2)
of
the
Income
Tax
Act
which
provides:
56.(2)
A
payment
or
transfer
of
property
made
pursuant
to
the
direction
of,
or
with
the
concurrence
of,
a
taxpayer
to
some
other
person
for
the
benefit
of
the
taxpayer
or
as
a
benefit
that
the
taxpayer
desired
to
have
conferred
on
the
other
person
shall
be
included
in
computing
the
taxpayer's
income
to
the
extent
that
it
would
be
if
the
payment
or
transfer
had
been
made
to
him.
Although
we
do
not
agree
with
his
reasons,
the
summary
conviction
appeal
court
judge
was
right
in
finding
Ramos
guilty
of
failing
to
report
income
in
the
sum
of
$75,000
for
the
taxation
year
1980.
It
was
agreed
by
the
parties
that
if
we
came
to
this
conclusion,
the
amount
of
the
tax
avoided
was
$22,338.74,
not
$29,515.70
as
charged
in
the
first
information.
5.
Failure
of
the
Crown
to
Prove
that
Ramos
Evaded
the
Payment
of
Tax
for
Both
1978
and
1980
as
Charged
in
the
First
Information
Counsel
for
the
appellants
submitted
that
if
we
concluded
that
the
Crown
had
proved
that
Ramos
failed
to
report
income
for
the
taxation
year
1980
but
not
for
the
taxation
year
1978,
then,
since
the
charges
are
conjunctive,
Ramos
should
be
acquitted
on
the
first
information.
The
summary
conviction
appeal
court
judge
rejected
this
submission
on
the
basis
of
the
decision
of
this
court
in
R.
v.
Hoffman-La
Roche
Ltd.
(Nos.
1
&
2)
(1981),
62
C.C.C.
(2d)
118.
In
Hoffman-La
Roche
the
accused
had
been
charged
with
selling
the
drugs
librium
and
valium
at
unreasonably
low
prices
contrary
to
paragraph
34(1
)(c)
of
the
Combines
Investigation
Act,
R.S.C.
1970,
c.C-23,
as
amended.
The
trial
judge
convicted
the
appellant
of
selling
valium
only,
and
he
amended
the
indictment
by
deleting
the
words
referring
to
librium.
On
appeal,
it
was
argued
that
the
trial
judge
had
erred
in
amending
the
indictment.
Martin,
J.A.,
at
136,
disposed
of
this
argument
as
follows:
Mr.
Sexton
for
the
Crown
contended
before
us
and
before
the
trial
Judge
that
the
indictment
alleged
a
single
illegal
policy
with
respect
to
both
Librium
and
Valium.
His
position
was
that
no
amendment
was
necessary
to
enable
a
conviction
to
be
made
for
engaging
in
that
illegal
policy
with
respect
to
Valium
only,
but
that
if
an
amendment
were
required,
it
could
be
made
pursuant
to
s.
529(2)(a)
and
(4)
without
injustice
to
the
appellant.
I
am
of
the
view
that
it
would
have
been
open
to
the
trial
Judge,
without
amending
the
indictment,
to
convict
the
appellant
of
the
offence
charged
under
s.
34(1)(c)
with
respect
to
Valium
only.
Where
an
indictment
charges
an
accused
with
stealing
a
number
of
articles,
it
is
unnecessary
to
prove
that
the
accused
stole
all
the
articles
specified;
the
accused
may
be
convicted
of
stealing
only
those
articles
which
he
is
proved
to
have
stolen.
Similarly,
where
an
accused
is
charged
with
stealing
or
obtaining
by
false
pretenses
a
sum
of
money,
the
accused
may
be
convicted
of
stealing
or
obtaining
by
false
pretenses
a
lesser
sum
established
by
the
evidence
without
amending
the
indictment:
see
Mâchent
v.
Quinn,
[1970]
2
All
E.R.
255;
Lake
v.
The
Queen,
[1969]
S.C.R.
49,
[1969]
2
C.C.C.
224,
1
D.L.R.
(3d)
322.
In
my
opinion,
the
same
principle
is
applicable
here,
and
a
conviction
could
have
been
made
on
the
original
indictment
of
the
offence
charged
under
s.
34(1
)(c),
restricted
to
Valium
only.
Although,
as
I
have
indicated,
it
was
not
necessary
to
amend
the
indictment
to
enable
the
Court
to
convict
the
appellant
on
that
part
of
the
indictment
which
related
to
Valium,
I
am
satisfied
that
the
amendment
did
not
amount
to
a
substantial
wrong
to
the
appellant
or
result
in
a
miscarriage
of
justice.
I
would
not
therefore
give
effect
to
this
ground
of
appeal.
This
statement
of
the
law
was
approved
by
Dickson,
J.
(as
he
then
was)
in
R.
v.
Giguère
et
al.,
[1983]
2
S.C.R.
448
at
465-66.
We
agree
with
the
summary
conviction
appeal
court
judge
that
failure
to
prove
the
entire
offence
as
charged
in
the
first
information
is
of
no
consequence.
The
information
charged
Ramos
with
wilfully
evading
the
payment
of
$29,515.70
in
taxes.
Although
the
Crown
has
not
proved
that
this
full
amount
of
tax
was
evaded,
it
has
proved
that
Ramos
evaded
payment
of
$22,338.74
of
tax.
On
the
basis
of
Hoffman-La
Roche,
Ramos
is
properly
convicted
of
wilfully
evading
payment
of
the
lesser
amount
of
tax.
We
would
therefore
amend
the
conviction
of
Ramos
on
the
first
information
for
evading
payment
of
tax
by
failing
to
report
income
in
the
sum
of
$25,000
for
the
taxation
year
1978
and
substitute
the
figure
of
$22,338.74
as
the
amount
of
tax
avoided.
6.
Whether
Subsection
239(1)
of
the
Income
Tax
Act
Conferring
on
the
Attorney
General
of
Canada
the
Right
to
Elect
to
Proceed
by
Indictment
or
by
Summary
Conviction
Contravenes
Section
15
of
the
Charter
The
appellant
challenges
the
constitutional
validity
of
sections
613(4),
748,
755
and
771
of
the
Criminal
Code
on
the
ground
that
these
provisions
violate
sections
7,
11(f),
11(h)
and
15
of
the
Canadian
Charter
of
Rights
and
Freedoms.
In
fact,
his
challenge
must
be
taken
to
be
to
section
239
of
the
Income
Tax
Act,
under
which
he
was
charged
and
convicted,
because
it
is
a
hybrid
offence
provision.
His
submissions
that
section
15
of
the
Charter
is
violated
by
the
Criminal
Code
sections
mentioned
are
not
based,
per
se,
on
the
procedures
therein
set
out,
but
rather
on
those
procedures
as
compared
to
procedures
that
would
have
applied
if
the
election
provided
for
in
section
239
for
prosecuting
upon
indictment
had
been
taken.
Subsection
(1)
of
section
239
provides:
(1)
Every
person
who
has
(d)
wilfully,
in
any
manner,
evaded
or
attempted
to
evade,
compliance
with
this
Act
or
payment
of
taxes
imposed
by
this
Act,
.
.
.
is
guilty
of
an
offence
and,
in
addition
to
any
penalty
otherwise
provided,
is
liable
on
summary
conviction
to
(f)
a
fine
of
not
less
than
25%
and
not
more
than
double
the
amount
of
the
tax
that
was
sought
to
be
evaded,
or
(g)
both
the
fine
described
in
paragraph
(f)
and
imprisonment
for
a
term
not
exceeding
2
years.
However,
subsection
(2)
permits
the
Attorney
General
of
Canada
to
choose
an
alternate
proceeding:
(2)
Every
person
who
is
charged
with
an
offence
described
by
subsection
(1)
may,
at
the
election
of
the
Attorney
General
of
Canada,
be
prosecuted
upon
indictment
and,
if
convicted,
is,
in
addition
to
any
penalty
otherwise
provided,
liable
to
imprisonment
for
a
term
not
exceeding
5
years
and
not
less
than
2
months.
In
the
present
case
the
Attorney
General
did
not
elect
to
prosecute
upon
indictment,
thereby
proceeding
under
subsection
(1)
and
the
relevant
pro-
visions
in
Part
XXIV
of
the
Criminal
Code.
Thus
the
appeal
provisions
in
sections
613(4),
748,
755
and
771
of
the
Criminal
Code
came
into
operation
and
it
is
these
provisions
to
which
the
appellant
objects
as
compared
to
the
procedures
that
would
have
been
applicable
if
the
prosecution
had
proceeded
upon
indictment.
The
question
to
be
addressed,
therefore,
is
whether
the
distinctions
between
the
rights
of
appeal
in
summary
conviction
offences,
which
applied
to
the
appellant,
and
those
in
indictable
offences,
which
did
not,
violate
sections
7,
11(h)
and
15
of
the
Charter.
Section
15
of
the
Charter
provides:
Every
individual
is
equal
before
and
under
the
law
and
has
the
right
to
the
equal
protection
and
equal
benefit
of
the
law
without
discrimination,
and
in
particular
without
discrimination
based
on
race,
national
or
ethnic
origin,
colour,
religion,
sex,
age
or
mental
or
physical
disability.
Perhaps
the
best
way
to
discuss
the
possible
meaning
of
the
equality
rights
in
section
15
of
the
Charter
is
to
start
with
the
first
opinion
expressed
on
the
issue
by
this
Court
in
Re
McDonald
and
The
Queen
(1985),
21
C.C.C.
(3d)
330.
At
349
Morden,
J.A.
put
forth
the
basic
proposition
that:
.
.
.
[T]he
purpose
of
s.
15
is
to
require
“that
those
who
are
similarly
situated
be
treated
similarly”:
Tussman
and
tenBroek,
“The
Equal
Protection
of
the
Laws”,
37
Cal.
L.
Rev.
341
(1948),
at
p.
344.
In
the
subsequent
case
of
R.
v.
R.L.
(1986),
26
C.C.C.
(3d)
417,
Morden,
J.A.
added
a
second
observation
as
to
the
“essentially
relational
nature
of
equality”.
His
two
propositions
were
stated
thus
at
424-25:
...
The
essentially
relational
nature
of
equality
has
been
described
as
follows.
“The
concept
of
equality
is,
by
definition,
relational
or
comparative.
A
person
can
only
be
found
to
be
equal
in
relation
to
or
in
comparison
with
some
other
person
who
serves
as
a
standard
or
criterion.”
Monroe
H.
Freedman,
“Equality
in
the
Administration
of
Criminal
Justice”,
Nomos
IX
(1967)
250
at
pp.
253-4.
The
concern
for
equality
is
that
those
who
are
similarly
situated
with
respect
to
the
purpose
of
the
law
be
treated
similarly:
see
Tussman
and
tenBroek
.
.
.
and
Re
McDonald
and
The
Queen
.
.
.
referring
to
the
Tussman
and
tenBroek
article.
The
views
of
Morden,
J.A.
in
Re
McDonald
were
subsequently
referred
to
with
approval
by
Howland,
C.J.O.
and
Robins,
J.A.
in
their
dissenting
opinion
in
Reference
re
an
Act
to
Amend
the
Education
Act
(1986),
53
O.R.
(2d)
513
at
554-55,
and
by
Dubin,
J.A.
in
Re
Blainey
and
Ontario
Hockey
Association
(1986),
54
O.R.
(2d)
513
at
524-25.
It
was
applied
by
this
court
in
Bregman
and
Bregman
v.
Attorney
General
for
Canada
(unreported,
released
29,
November
1986)
to
hold
that
someone
who
was
a
member
of
an
allied
force
at
a
time
when
he
had
no
connection
with
Canada,
even
though
he
subsequently
became
a
citizen,
is
not
"similarly
situated”
to
someone
who
was
domiciled
in
Canada
when
he
joined
an
allied
force
for
the
purpose
of
the
war.
Applying
this
approach,
the
determination
of
whether
two
or
more
particular
classes
of
persons
are
in
fact
similarly
situated
becomes
the
analytical
point
of
departure
in
any
section
15
analysis.
It
would
seem
that
if
persons
are
held
not
to
be
similarly
situated,
then
no
further
analysis
is
required.
However,
it
is
not
always
clear
whether
persons
are
or
are
not
similarly
situated,
and
whether,
even
if
they
are
not,
this
is
relevant
to
a
section
15
inquiry.
It
is
necessary
to
be
cautious
in
this
classification.
It
is
usually
possible
to
find
differences
between
classes
of
persons
and,
on
the
basis
of
these
differences,
conclude
that
the
persons
are
not
similarly
situated.
However,
what
are
perceived
to
be
significant
"differences”
between
persons
or
classes
of
persons
could
be
the
result
of
stereotypes
based
on
existing
inequalities
which
the
equality
provisions
of
the
Charter
are
designed
to
eliminate,
not
perpetuate.
The
effects
of
past
discrimination
between
classes
of
persons
can
result
in
these
classes
in
fact
not
being
similarly
situated.
Certain
differences,
such
as
the
biological
ones
between
the
sexes,
result
in
there
being
no
actual
comparable
class,
as
with
respect
to
reproductive
issues.
While
some
of
these
situations
may
well
require
differential
treatment
in
the
interests
of
equality,
it
is
important
that
some
differences
between
the
classes
of
persons
not
operate
to
prevent
a
valid
section
15
equality
analysis
by
concluding
that
classes
are
not
similarly
situated.
Rather,
the
determination
of
whether
persons
are
similarly
situated
must
also
consider
the
relevance
of
the
differences
and,
thus,
the
question
ought
to
be
whether
the
differences
among
those
being
treated
differently
by
the
legislation
in
question
are
relevant
for
the
purposes
of
that
legislation.
In
the
present
case,
the
two
relevant
classes
of
persons
are
those
persons
whose
acquittals
for
indictable
offences
are
being
appealed
and
those
persons
whose
acquittals
for
summary
conviction
offences
are
being
appealed.
It
is
not
clear,
however,
that
these
are
the
types
of
classifications
contemplated
by
section
15
of
the
Charter.
In
considering
whether
the
Crown's
discretion
to
proceed
either
by
way
of
summary
conviction
or
by
way
of
indictment
violated
the
equality
provision
of
the
Canadian
Bill
of
Rights,
Fauteux,
C.J.C.
in
R.
v.
Smythe,
[1971]
S.C.R.
680;
3
C.C.C
(2d)
366,
stated
at
685
(C.C.C.
370):
In
my
opinion,
appellant’s
views
fail
to
recognize
that
the
provisions
of
s.
132(2)
[present
s.
239]
do
not,
by
themselves
place
any
particular
person
or
class
of
persons
in
a
condition
of
being
distinguished
from
any
other
member
of
the
community
and
that,
applicable
without
distinction
to
everyone,
as
indeed
they
are,
these
provisions
simply
confer
upon
the
Attorney-General
of
Canada
the
power
of
deciding,
according
to
his
own
judgment
and
in
all
cases,
the
mode
of
prosecution
for
offences
described
in
s.
132(1).
A
similar
issue
was
addressed
by
the
Oregon
Supreme
Court
in
State
v.
Clark,
630
P.
2d
810
(1981),
in
considering
whether
the
distinction
between
those
persons
accorded
a
preliminary
hearing
because
charged
by
information,
and
those
persons
denied
such
a
hearing
because
indicted,
violated
the
equal
protection
guarantees
of
the
Fourteenth
Amendment.
With
regard
to
the
term
“class”,
the
court
held,
at
p.
816:
The
terms
"class”
and
"classification”
are
invoked
sometimes
to
mean
whatever
distinction
is
created
by
the
challenged
law
itself
and
sometimes
to
refer
to
a
law's
disparate
treatment
of
persons
or
groups
by
virtue
of
characteristics
which
they
have
apart
from
the
law
in
question.
Familiar
examples
of
the
latter
kind
of
"class”
are
personal
characteristics
such
as
sex,
ethnic
background,
legitimacy,
past
or
present
residency
or
military
service.
On
the
other
hand,
every
law
itself
can
be
said
to
"classify”
what
it
covers
from
what
it
excludes.
For
instance,
the
rule
of
this
court
that
limits
the
time
for
filing
a
petition
for
review
..
.
“classifies”
persons
by
offering
the
"privilege”
of
review
to
those
who
file
within
30
days
and
denying
it
to
those
who
file
later.
Similarly,
a
law
that
licenses
opticians
and
optometrists
to
perform
different
functions.
See
Williamson
v.
Lee
Optical,
348
U.S.
483
.
.
.
(1955),
does
not
grant
or
deny
privileges
to
classes
of
persons
whose
characteristics
are
those
of
“opticians”
and
"optometrists”;
rather,
the
law
creates
these
classes
by
the
licensing
scheme
itself.
Attacks
on
such
laws
as
“class
legislation”
therefore
tend
to
be
circular
and,
as
the
above
quotations
from
early
decisions
show,
have
generally
been
rejected
whenever
the
law
leaves
it
open
to
anyone
to
bring
himself
or
herself
within
the
favoured
class
on
equal
terms
.
.
.
With
respect
to
the
classification
suggested
by
the
defendant,
that
is,
those
persons
who
are
indicted,
and
those
persons
who
are
charged
by
information,
the
court
held,
at
817-18:
.
.
.
[W]e
think
this
is
an
example
of
the
“circular”
use
of
the
concept
of
“class”
mentioned
above.
The
distinction
to
be
tested
is
the
use
or
nonuse
of
preliminary
hearings.
The
“classes”
said
to
fail
the
test
of
equal
protection
are
the
“class”
of
those
defendants
who
receive
preliminary
hearings
(because
charged
by
information)
and
the
“class”
of
those
who
do
not
(because
indicted).
But
these
defendants
do
not
exist
as
categories
or
as
classes
with
distinguishing
characteristics
before
and
apart
from
a
prosecutor's
decision
who
to
charge
—
one,
or
some,
or
all
defendants.
Aside
from
the
manner
in
which
the
decision
is
made,
see
City
of
Klamath
Falls,
.
.
.
619
P.
2d
217
.
.
.
,
defendants
charged
under
either
procedure
are
“classes”
only
as
an
effect
of
the
dual
procedural
scheme
itself
.
.
.
Similarly,
the
intervenant
submits,
it
is
not
so
much
the
provisions
of
the
Criminal
Code
that
distinguish
any
particular
person
or
class
of
persons
from
any
other
member
of
the
community,
as
that
all
members
of
the
community
are
equally
subject
to
the
dual
procedure.
He
argues
that
there
are
no
personal
characteristics
or
attributes
of
an
individual
person
or
class
of
persons
upon
which
the
distinction
is
drawn.
Rather,
the
distinction
is
based
on
the
Attorney
General’s
judgment
with
regard
to
the
act
allegedly
committed
by
the
accused.
As
in
Clark,
the
categories
of
accused
persons
do
not
exist
as
categories
or
classes
with
distinguishing
characteristics
before
and
apart
from
the
Attorney
General’s
decision
of
how
to
charge
them.
We
would
not
be
prepared
to
accept
the
proposition
that
it
is
necessary,
if
the
persons
alleging
a
section
15
infringement
are
to
succeed,
that
these
persons
constitute
categories
or
classes
with
distinguishing
characteristics
before
and
apart
from
the
prosecutor's
decision.
It
is
true
that
there
are
no
personal
characteristics
or
attributes
of
an
individual
person
or
class
of
persons
upon
which
the
distinction
in
this
case
is
drawn.
However,
in
a
section
15
case
the
question
is
not
whether
those
alleging
a
violation
of
their
equality
rights
have
differences
which
exist
independently
of
the
law,
but
rather,
whether
the
law
treats
those
persons
differently.
Nonetheless
we
would
be
wise
to
heed
the
caution
of
the
Court
in
Clark
about
avoiding
the
circular
use
of
the
term
“class”
in
an
analysis
of
equality.
However,
assuming
that
persons
charged
with
indictable
offences
and
persons
charged
with
summary
conviction
offences
can
be
considered
classes
for
the
purpose
of
a
section
15
analysis,
it
must
then
be
determined
whether
these
classes
are
similarly
situated.
In
the
context
of
offences
which
are
classified
exclusively
as
indictable
offences,
such
as
murder,
on
the
one
hand,
and
those
classified
exclusively
as
summary
conviction
offences,
such
as
fraudulently
obtaining
food
or
lodging,
on
the
other
hand,
it
is
not
difficult
to
conclude
that
persons
charged
with
these
indictable
offences
are
not
in
the
same
class
as
persons
charged
with
these
summary
conviction
offences.
The
differences
between
these
classes
of
persons,
namely,
the
seriousness
of
the
offence
committed,
can
be
seen
to
be
relevant
to
the
general
purpose
of
the
criminal
procedure
provisions
of
the
Criminal
Code,
that
is,
providing
the
accused
with
a
fair
trial
and
appeal.
Since
the
indictable
offences
carry
with
them
harsher
penalties,
that
is,
greater
threats
to
the
liberty
of
the
accused,
the
legislation
demands
that
greater
safeguards
be
provided.
However,
this
distinction
becomes
somewhat
less
clear
in
the
context
of
hybrid
offences.
The
choice
of
procedure
in
hybrid
offences
could
also
be
seen
to
be
based
on
the
degree
of
seriousness
of
the
offence.
This
choice
is
not
made
on
an
a
priori
basis,
but
rather,
is
left
to
the
discretion
of
the
Attorney
General
to
determine
according
to
the
particular
circumstances
of
the
case.
However,
where
a
hybrid
offence
is
involved
two
virtually
identical
cases
may
nevertheless
be
treated
differently
if
the
Attorney
General
elects
to
proceed
by
indictment
in
one,
and
by
summary
conviction
in
the
other.
While
the
differential
treatment
thereby
accorded
these
persons
may
well
be
justifiable
in
some
cases,
it
may
be
difficult
to
conclude
that
two
persons
who
have
committed
the
same
offence
are
not
in
fact
similarly
situated
for
the
purpose
of
a
section
15
analysis.
It
would
appear
that
the
appellant
is
attempting
to
compare
either
the
general
class
of
the
persons
charged
with
indictable
offences
with
the
general
class
of
persons
charged
with
summary
conviction
offences,
or
the
somewhat
narrower
class
of
persons
involved
in
an
appeal
concerning
summary
conviction
offences
with
persons
involved
in
an
appeal
concerning
indictable
offences.
Nevertheless,
it
is
necessary
to
proceed
to
the
next
step
of
a
section
15
analysis,
namely,
whether
differential
treatment
within
the
context
of
hybrid
offences
constitutes
“discrimination”
within
the
meaning
of
section
15.
There
are
at
least
two
approaches
to
the
meaning
of
the
term
“without
discrimination”
in
section
15,
whether
it
prohibits
any
distinction
or
only
such
distinctions
as
are
invidious,
unreasonable
or
unjustifiable.
These
two
approaches
were
set
out
by
Morden,
J.A.
in
the
McDonald
case,
supra,
at
348-49:
.
.
.
On
the
one
hand,
the
section
can
be
read
as
providing
that
there
is
no
infringement
unless
there
is
unequal
treatment
resulting
from
discrimination,
that
is,
discrimination
in
the
sense
of
invidiousness
—
unjustifiability,
unreasonableness
or
irrelevance.
On
this
approach,
putting
it
in
its
simplest
terms,
there
would
be
no
infringement
unless
the
person
alleging
infringement
could
show
an
inequality
that
was
unreasonably
imposed:
see
Gold,
“A
Principled
Approach
to
Equality
Rights”,
4
Supreme
Court
L.R.
131
(1982),
at
pp.
151-3,
where
this
approach
discussed
on
the
basis
that
“the
equality
rights
.
.
.
in
the
Charter
contain
within
them
a
non-absolutist
conception”
without
reference
in
this
part
of
the
article
to
the
words
“without
discrimination”.
On
the
other
hand,
it
has
been
argued
that
discrimination
should
be
read
in
a
neutral
sense,
as
meaning
merely
distinction
or
classification,
with
the
result
that
“s.
15
should
be
interpreted
as
providing
for
the
universal
application
of
every
law.
Where
a
law
draws
a
distinction
between
individuals,
on
any
ground,
that
distinction
is
sufficient
to
constitute
a
breach
of
s.
15,
and
to
move
the
constitutional
issue
to
s.
1
[to
consider
whether
the
law
is
justified]”:
Hogg,
Constitutional
Law
of
Canada,
2nd
ed.
(1985),
pp.
799-801.
Chief
Justice
Howland
and
Robins,
J.A.,
in
their
dissenting
opinion
in
the
Education
Act
Reference,
supra,
at
554-55,
although
also
not
needing
to
choose
between
the
two
approaches,
clearly
recognized
that
more
than
just
the
making
of
distinctions
is
necessary
before
finding
that
section
15
is
infringed;
.
.
.
There
is
no
infringement
of
the
section
unless
the
unequal
treatment
is
discriminatory.
Most
laws
provide
for
distinctions
and
prescribe
different
results
based
on
those
distinctions.
Indeed,
a
State
could
not
function
without
classifying
its
citizens
for
various
purposes
and
treating
some
differently
from
others.
As
Mr.
Justice
Stewart
pointed
out
in
his
discussion
of
the
equal
protection
clause
of
the
U.S.
Fourteenth
Amendment
in
San
Antonio
School
District
v.
Rodriguez
(1973),
411
U.S.
1
at
p.
60:
“There
is
hardly
a
law
on
the
books
that
does
not
affect
some
people
differently
from
others.”
Similarly,
although
spoken
in
a
different
context,
Chief
Justice
Dickson
said
at
p.
347
S.C.R.,
p.
362
D.L.R.
of
Big
M
Drug
Mart
Ltd.,
supra,
.
the
interests
of
true
equality
may
well
require
differentiation
in
treatment”.
.
.
We
agree.
The
reasons
for
rejecting
the
neutral
approach,
which
would
hold
any
distinction
to
be
in
violation
of
section
15,
were
persuasively
summarized
by
McLachlin,
J.A.
for
the
British
Columbia
Court
of
Appeal
in
Andrews
v.
Law
Society
of
British
Columbia,
[1986]
4
W.W.R.
242
at
249-50:
It
cannot
have
been
the
intention
of
Parliament
to
guarantee
a
general
right
against
unequal
treatment.
Almost
all
statutes
draw
distinctions
between
individuals.
It
cannot
be
supposed
that
in
all
such
cases
the
individual’s
constitutional
rights
are
infringed.
To
call
every
legislative
distinction
between
people
an
infringement
of
s.
15
is
to
trivialize
the
fundamental
rights
guaranteed
by
the
Charter.
Second,
such
an
approach
deprives
the
phrase
“without
discrimination”
of
content:
provided
the
treatment
is
unequal,
one
passes
immediately
to
s.
1
of
the
Charter.
That
would
run
counter
to
accepted
canons
of
statutory
interpretation.
Hogg,
p.
800
acknowledges
this
problem,
but
says,
because
“discrimination"
is
ambiguous
and
can
be
read
in
a
“neutral
sense",
it
should
be
taken
to
remit
the
entire
question
of
justification
to
s.
1.
!
cannot
accept
that
view.
“Discrimination”
must
be
taken
to
have
meaning
within
s.
15
itself.
Third,
it
cannot
have
been
the
intention
of
Parliament
that
the
government
be
put
to
the
requirement
of
establishing
under
s.
1
that
all
laws
which
draw
distinction
between
people
are
“demonstrably
justified
in
a
free
and
democratic
society".
If
weighing
of
the
justifiability
of
unequal
treatment
is
neither
required
nor
permitted
under
s.
15,
the
result
will
be
that
such
universally
accepted
and
manifestly
desirable
legal
distinctions
as
those
prohibiting
children
or
drunk
persons
from
driving
motor
vehicles
will
be
viewed
as
violations
of
fundamental
rights
and
be
required
to
run
the
gauntlet
of
s.
1.
Although
we
find
her
fourth
reason
for
rejecting
a
neutral
interpretation
of
section
15
less
persuasive
than
the
three
quoted
above,
it
adds
a
caution
worth
contemplating
(at
250-1):
Finally,
it
may
further
be
contended
that
to
define
“discrimination”
under
s.
15
as
synonymous
with
unequal
treatment
on
the
basis
of
personal
classification
will
be
to
elevate
s.
15
to
the
position
of
subsuming
the
other
rights
and
freedoms
defined
by
the
Charter
.
.
.
That,
however,
may
be
what
will
become
of
s.
15
if
it
is
interpreted
as
being
violated
by
any
distinction
or
unequal
treatment.
Section
15,
like
the
14th
Amendment
in
the
United
States
Constitution
will
dwarf
the
other
provisions
of
the
Charter
and
be
the
central
issue
in
virtually
all
Charter
litigation.
Laws
which
do
not
violate
any
other
fundamental
right
or
freedom
will
almost
always
(if
the
United
States
experience
is
any
guide)
be
alleged
to
violate
s.
15
because
the
legislature
classified
or
failed
to
classify.
Even
though
legislation
does
not
violate
any
other
sections,
it
will
always
be
required
to
run
the
gauntlet
of
ss.
15
and
1.
In
my
view,
this
cannot
have
been
the
intention
of
the
enactors
of
the
Charter.
To
interpret
s.
15
as
other
than
a
section
guaranteeing
equal
protection
and
benefit
without
discrimination
in
the
sense
of
unequal
treatment
that
is
unfair
or
unjustified
is
to
quote
Dickson
J.
[now
C.J.C.]
“to
overshoot
[its]
actual
purpose":
Big
M
Drug
Mart,
supra,
at
p.
344.
Without
a
detailed
and
definitive
analysis
of
what
would
be
a
proper
test
for
the
pejorative
view
of
the
words
“without
discrimination”
in
section
15,
we
are
content
for
the
purposes
of
this
case
to
adopt
that
of
Madam
Justice
McLachlin
in
the
Andrews
case,
supra,
at
253:
.
.
.
The
ultimate
question
is
whether
a
fair-minded
person,
weighing
the
purposes
of
legislation
against
its
effects
on
the
individuals
adversely
affected
and
giving
due
weight
to
the
right
of
the
legislature
to
pass
laws
for
the
good
of
all,
would
conclude
that
the
legislative
means
adopted
are
unreasonable
or
unfair.
In
the
more
recent
case
of
R.
v.
LeGallant
(1987),
54
C.R.
(3d)
46
at
55,
Hinkson,
J.A.,
also
for
the
British
Columbia
Court
of
Appeal,
expressed
it
in
these
terms:
.
.
.
[Discrimination
involves
the
drawing
of
an
unreasonable
or
unjustifiable
distinction.
The
question
to
be
answered
in
determining
whether
or
not
law
is
discriminatory
is
whether
the
law
is
reasonable
or
fair,
having
regard
to
its
purpose
and
effect.
Involved
in
this
approach
there
is
the
consideration
that
a
law
may
be
discriminatory
if
it
treats
some
persons
unduly
prejudicially.
On
this
point
it
is
interesting
to
note
that
although
the
French
version
of
the
equality
rights
provision
in
the
European
Convention
on
Human
Rights
(art.
14)
uses
the
words
"sans
distinction
aucune”
the
European
Court
of
Human
Rights,
in
the
Belgian
Linguistic
case
(1968),
1
E.H.R.R.
252
at
284,
decided
that
the
pejorative
implication
of
the
English
words
"without
discrimination”
was
more
appropriate:
...
[T]he
principle
of
equality
of
treatment
is
violated
if
the
distinction
has
no
objective
and
reasonable
justification.
The
existence
of
such
a
justification
must
be
assessed
in
relation
to
the
aim
and
effects
of
the
measure
under
consideration,
regard
being
had
to
the
principles
which
normally
prevail
in
democratic
societies.
A
difference
of
treatment
in
the
exercise
of
a
right
laid
down
in
the
convention
must
not
only
pursue
a
legitimate
aim:
Article
14
is
likewise
violated
when
it
is
clearly
established
that
there
is
no
reasonable
relationship
of
proportionality
between
the
means
employed
and
the
aim
sought
to
be
realised.
To
apply
the
pejorative
or
adverse
test
to
this
case,
we
have
to
ask
whether
the
different
rights
of
appeal
in
a
summary
conviction
offence,
as
against
those
in
an
indictable
offence,
do
pose
an
inherent
disadvantage.
The
appellant
submits
that
he
is
disadvantaged
because
in
summary
conviction
procedures
the
Crown
has
a
right
of
appeal
from
an
acquittal
on
questions
of
fact,
which
it
does
not
have
on
appeals
in
proceedings
by
indictment.
In
determining
this
issue
it
is
useful
to
consider
the
decision
of
the
Supreme
Court
of
Oregon
in
City
of
Klamath
Falls
v.
Winters,
619
P.
2d
217
(1980).
The
court,
at
225,
considered
whether
the
differences
in
appeal
rights
available
to
defendants
prosecuted
in
district
court
as
compared
with
those
available
to
defendants
prosecuted
in
municipal
court
or
the
discretion
to
prosecute
defendants
in
municipal
court
rather
than
district
court,
violated
the
constitutional
guarantees
to
the
equal
protection
of
the
law:
To
convicted
defendants
seeking
appeal,
there
are
advantages
inherent
in
each
of
these
systems.
Persons
convicted
in
municipal
court
have
the
advantage
of
a
complete
new
trial,
including
the
right
to
a
new
jury.
Thus,
they
have
the
opportunity
to
seek
review
not
only
of
legal
questions,
but
they
may
also
seek
new
factual
determinations
as
well.
They
also
have
an
advantage
resulting
from
possible
use
of
the
trial
in
municipal
court
for
the
purpose
of
“discovery”
and
prior
to
trial
de
novo
in
the
circuit
court.
Further
appeal
to
the
Court
of
Appeals,
however,
is
limited
to
questions
of
the
constitutionality
of
Charter
provisions
or
ordinances.
Persons
convicted
in
district
court
have
the
advantage
of
appellate
review
before
a
multi-judge
court.
That
review,
however,
is
limited
to
errors
of
law
appearing
on
the
record
..
.,
and
such
persons
do
not
have
the
advantages
resulting
from
a
review
by
trial
de
novo
in
the
circuit
court.
It
would
be
difficult
to
state
categorically
which
system
offers
greater
advantages
to
defendants.
Whether
one
or
the
other
system
is
to
the
advantage
of
a
particular
defendant
depends
on
whether
his
defence
rests
only
on
factual
contentions
or
also
on
legal
contentions.
As
in
Klamath
Falls,
in
the
present
case
there
are
advantages
inherent
in
each
of
the
two
procedures,
and
whether
one
or
the
other
is
to
the
advantage
of
a
particular
individual
may
depend
at
least
partly
on
whether
his
or
her
defence
rests
on
factual
contentions
or
legal
ones.
In
the
present
case,
the
appellant
simply
asserts
that
the
distinctions
between
indictable
and
summary
conviction
procedures
should
end
once
a
trial
is
concluded,
and
that
there
is
no
justification
for
the
distinction
in
the
rights
of
appeal.
He
submits,
further,
that
there
is
no
justification
to
permit
an
appellate
court
on
an
appeal
by
the
Crown
in
summary
conviction
cases
to
review
findings
of
fact.
Since
the
burden
of
proof
is
on
the
appellant
to
demonstrate
that
the
distinction
is
unreasonable
and
thus
contrary
to
section
15
we
consider
that
the
appellant
has
failed
to
meet
this
burden.
The
intervenant,
the
Attorney
General
of
Ontario,
directly
addresses
the
question
of
the
reasonableness
of
the
distinction
in
the
rights
of
appeal.
He
submits
in
his
factum
that:
.
..
[T]he
provisions
of
the
Code
relating
to
summary
conviction
procedure
are
aimed
at
providing
what
is
generally
a
simpler,
more
expeditious
mode
of
criminal
procedure
for
those
matters
which
do
not
call
for
the
significant
punishments
available
upon
conviction
by
way
of
indictment.
The
provision
of
an
intermediary
appeal,
in
such
cases,
to
a
local
court
broad
in
scope,
is
a
rational
method
of
ensuring
that
the
summary
nature
of
the
procedure
set
out
in
part
XXIV
does
not
give
rise
to
miscarriages
of
justice,
whether
they
arise
out
of
questions
of
law
or
act.
In
addressing
this
question,
useful
reference
can
be
made
to
another
decision
of
the
Supreme
Court
of
Oregon
—
State
v.
Jones,
569
P.
2d
19
(1977).
The
defendant
challenged,
inter
alia,
the
constitutionality
of
the
procedure
requiring
a
preliminary
hearing
or
a
grand
jury
indictment
when
a
felony
charge
was
laid,
but
not
when
it
was
a
misdemeanour,
on
the
ground
that
it
denied
him
equal
protection
of
the
law.
However,
the
court
held,
at
24,
that
there
is
a
rational
basis
for
the
difference
in
treatment
because
of
the
distinction
between
felonies
and
misdemeanours:
The
greater
penalties
and
more
onerous
consequences
of
a
felony
conviction
form
a
rational
basis
for
requiring
a
probable
cause
determination
via
preliminary
hearing
or
grand
jury
indictment
in
order
to
try
an
accused
for
a
felony.
It
is
not
a
denial
of
equal
protection
to
not
accord
a
misdemeanant
the
same
treatment.
A
misdemeanant
charged
in
circuit
court
by
information
is
subjected
to
the
same
statutory
penalty
provisions
and
is
accorded
the
same
procedural
safeguards
associated
with
arraignment
and
trial
as
any
other
misdemeanant
charged
in
a
court
of
limited
jurisdiction.
See
State
v.
Belt,
16
O.R.
App.
213,
517
P.
2d.
1219,
Sup.Ct.
review
denied
(1974).
In
other
words
a
misdemeanant
charged
in
circuit
court
is
treated
no
differently
than
any
other
misdemeanant
with
the
exception
that
the
forum
is
different.
The
court
thus
concluded
that
there
was
no
violation
of
the
equality
guarantees
of
the
Fourteenth
Amendment.
One
of
the
main
purposes
of
the
summary
conviction
procedure
is
to
provide,
as
submitted
by
the
intervenant,
for
a
simpler,
more
expeditious
mode
of
criminal
procedure
for
those
less
serious
offences
which
carry
less
significant
punishments
than
for
indictable
offences.
Indictable
offences,
on
the
other
hand,
in
carrying
greater
penalties
and
more
onerous
consequences
for
the
liberty
of
the
accused,
are
thus
provided
with
more
complex
procedural
requirements
to
safeguard
the
liberty
of
the
accused.
The
different
purposes
provide
a
rational
basis
for
the
difference
in
the
right
of
appeal.
As
noted
by
the
intervenant,
the
provision
of
an
intermediate
appeal
in
summary
conviction
offences
by
the
Crown
on
questions
of
fact,
as
set
out
in
the
case
law,
provides
what
appears
to
be
a
rational
method
of
ensuring
that
the
summary
nature
of
the
procedure
does
not
give
rise
to
miscarriages
of
justice.
The
limitation
of
the
Crown's
right
to
appeal
in
indictable
offences
to
grounds
of
law
alone,
on
the
other
hand,
appears
to
be
a
rational
method
of
protecting
the
liberty
of
the
accused.
The
very
purpose
of
a
hybrid
offence
provision
is
to
allow
for
a
variation
in
the
differing
circumstances
that
are
to
be
found
from
one
case
to
another.
An
offence
like
tax
evasion
is
such
that
in
one
case
it
will
be
appropriate,
due
to
the
greater
seriousness
of
the
act
committed,
to
proceed
by
indictment,
whereas
in
another
less
serious
case,
it
will
be
appropriate
to
proceed
by
way
of
summary
conviction.
The
hybrid
offence
provision
in
the
Income
Tax
Act
is
thus
a
means
by
which
the
criminal
law
provides
the
Attorney
General
with
sufficient
flexibility
to
take
the
specific
circumstances
of
each
case
into
account
and
ensure
that,
in
each
case,
the
interests
of
justice
are
served.
In
fact,
lack
of
such
choice
could
lead
to
a
contravention
of
section
15
in
that
persons
who
are
not
similarly
situated
would
get
the
same
treatment
and,
thereby
be
treated
unfairly.
It
should
be
emphasized
that
we
do
not
come
to
our
conclusion
because
of
any
doubts
that
may
have
arisen,
concerning
judicial
review
of
the
Attorney
General’s
discretion,
in
such
older
cases
as
Florence
Mining
Co.
v.
Cobalt
Lake
Mining
Co.
(1909),
18
O.L.R.
275,
affd.
43
O.L.R.
474
and
Cripen
v.
Attorney
General
for
Ontario
(1925),
56
O.L.R.
327,
affd.
56
O.L.R.
530,
or
such
Canadian
Bill
of
Rights
cases
as
R.
v.
Court
of
Sessions
of
the
Peace
et
al.,
ex
parte
Lafleur,
[1967]
3
C.C.C.
244,
(Que.C.A.),
R.
v.
Smythe,
supra,
(S.C.C.),
Morgentaler
v.
The
Queen,
[1975]
S.C.R.
616;
20
C.C.C.
(2d)
449
and
Re
Saikaly
and
The
Queen
(1979),
48
C.C.C.
(2d)
192
(O.C.A.).
These
are
all
pre-Charter
cases
and
any
doubts
as
to
judicial
review
of
ministerial
discretion
in
such
early
Charter
cases
as
Stolar
v.
The
Queen
(1983),
4
C.R.R.
252
(B.C.C.A.),
and
R.
v.
Taylor
(1983),
8
C.R.R.
29
(B.C.S.C.)
were
laid
to
rest
in
the
Supreme
Court
of
Canada
decision
in
Operation
Dismantle
v.
The
Queen,
[1985]
1
S.C.R.
441.
It
is
now
clear
that
a
decision
of
the
Attorney
General,
like
a
decision
of
Cabinet,
is
reviewable,
not
on
the
ground
of
whether
it
was
sound,
but
rather
on
the
ground
of
whether
or
not
it
violates
the
accused's
rights
under
the
Charter.
See
Re
Regina
and
Arviv
(1985),
19
C.C.C.
(3d)
395,
a
decision
of
this
court
which
preceded
Operation
Dismantle,
and
R.
v.
Kworak,
Balian
and
Ghara
Khanian
(1986),
20
C.R.R.
325,
a
decision
of
Smith,
J.
of
the
Ontario
High
Court
which
followed
the
Supreme
Court
decision.
If
the
Attorney
General’s
election
were
otherwise
discriminatory,
it
could
be
found
violative
of
section
15,
but
not
merely
on
the
ground
of
exercise
of
ministerial
discretion.
Thus,
we
conclude
that
section
239
of
the
Income
Tax
Act
and
the
choice
made
in
this
case
of
proceeding
by
way
of
summary
conviction
do
not
contravene
section
15
of
the
Charter.
Because
of
that
conclusion,
we
do
not
need
to
consider
the
application
of
section
1
of
the
Charter.
It
follows
from
these
reasons
that
the
Attorney
General’s
right
of
election,
pursuant
to
section
239
of
the
Income
Tax
Act,
does
not
contravene
paragraph
11(f)
of
the
Charter
providing
for
a
right
to
a
jury
in
the
circumstances
specified
in
that
subsection.
7.
Whether
the
Crown’s
Right
of
Appeal
to
the
Summary
Conviction
Appeal
Court
on
Questions
of
Fact
in
Summary
Conviction
Cases
Contravenes
Sections
7
and
11(h)
of
the
Charter
The
appellant
contended
that
the
Crown's
right
of
appeal
to
the
summary
conviction
appeal
court
on
questions
of
fact
in
summary
conviction
cases
infringed
section
7
and
paragraph
11(h)
of
the
Charter.
Section
7
of
the
Charter
reads:
Everyone
has
the
right
to
life,
liberty
and
security
of
the
person
and
the
right
not
to
be
deprived
thereof
except
in
accordance
with
the
principles
of
fundamental
justice.
Paragraph
11(h)
reads:
Any
person
charged
with
an
offence
has
the
right
(h)
if
finally
acquitted
of
the
offence,
not
to
be
tried
for
it
again
and,
if
finally
found
guilty
and
punished
for
the
offence,
not
to
be
tried
or
punished
for
it
again;
and
[Emphasis
added.]
This
court
held
in
R.
v.
Morgentaler,
Smoling
and
Scott
(1985),
52
O.R.
(2d)
353
at
405-10;
22
C.C.C.
(3d)
353
at
404-10
that
the
Crown's
right
of
appeal
from
an
acquittal
in
proceedings
by
indictment
on
a
question
of
law
alone
had
been
an
established
part
of
the
criminal
process
in
Canada
for
almost
a
century
prior
to
the
advent
of
the
Charter,
and
did
not
offend
against
the
double
jeopardy
principle
guaranteed
therein
by
paragraph
11(h),
which
was
the
relevant
section
in
determining
whether
the
right
of
appeal
conferred
by
the
Criminal
Code
on
the
Crown
contravened
the
Charter.
The
court
in
that
case
accepted
the
view
expressed
by
distinguished
commentators
on
the
Charter
that
the
word
“finally”
was
inserted
in
paragraph
11(h)
to
ensure
that
the
provision
did
not
prevent
the
Court
of
Appeal
from
ordering
a
new
trial.
The
court
found
it
unnecessary
to
decide
whether
the
aspects
of
double
jeopardy
recognized
by
the
defence
of
res
judicata
and
issue
estoppel
might
be
protected
by
section
7
of
the
Charter
if
not
encompassed
by
paragraph
11(h).
The
prosecutor's
right
of
appeal
in
summary
conviction
matters
on
questions
of
fact,
as
well
as
on
questions
of
law,
has
also
been
an
established
part
of
the
criminal
process
in
Canada
for
almost
a
hundred
years.
Under
the
1892
Criminal
Code
(55-56
Vict.,
c.
29,
s.
879,
which
was
derived
from
An
Act
to
Amend
The
Summary
Convictions
Act
(1888),
51
Vict.,
c.
45,
s.
7),
a
aright
of
appeal
from
the
dismissal
of
a
charge
tried
on
summary
conviction
was
conferred
on
the
prosecutor.
The
defendant,
of
course,
had
a
similar
right
of
appeal
from
conviction.
The
appeal
was
by
way
of
a
trial
de
novo.
When
the
appeal
was
properly
lodged
and
called
for
hearing,
although
a
fresh
plea
was
not
taken,
the
prosecutor
was
required
to
prove
his
case
whether
the
appeal
was
by
the
prosecutor
from
a
dismissal
or
was
an
appeal
by
the
defendant
from
conviction.
He
might
do
this
by
calling
the
same
evidence
or
by
calling
additional
evidence:
see
R.
v.
Dennis
(1960),
125
C.C.C.
321
(S.C.C.).
The
defendant,
likewise,
was
entitled
to
adduce
additional
evidence.
The
appeal
in
summary
conviction
matters
by
way
of
a
trial
de
novo
was
continued
under
the
new
Code
which
came
into
force
on
April
1,
1955.
However,
under
the
new
Code,
the
appellant,
for
the
first
time,
was
required
to
set
forth
the
grounds
of
appeal
in
the
notice
of
appeal
(subparagraph
722(1
)(a)(ii).
See
now
section
750
and
the
Rules
thereunder.).
Manifestly,
from
the
very
nature
of
the
appeal
by
way
of
trial
de
novo,
the
parties
had
a
right
of
appeal
on
questions
of
fact.
In
addition
to
the
right
of
appeal
by
way
of
a
trial
de
novo,
the
prosecutor
and
the
accused,
of
course,
had,
and
still
have,
the
more
limited
right
of
appeal
by
way
of
stated
case
from
the
dismissal
of
a
charge
on
questions
of
law
or
questions
involving
jurisdiction.
A
further
appeal
from
the
decision
of
the
summary
conviction
appeal
court
on
the
decision
of
the
appeal
court
in
appeals
by
way
of
stated
case
lies
to
the
Court
of
Appeal
with
leave
of
that
court
on
a
question
of
law.
As
a
result
of
the
changes
effected
by
the
Criminal
Law
Amendment
Act,
S.C.
1974-75-76,
c.
93,
s.
94,
an
appeal
on
the
record,
as
opposed
to
an
appeal
by
way
of
trial
de
novo,
is
now
the
normal
method
of
appeal
in
summary
conviction
matters.
An
appeal
by
way
of
trial
de
novo
is
exceptional
and
requires
an
order
of
the
Summary
Conviction
Appeal
Court
which
may
be
made
only
in
the
circumstances
specified
in
subsection
(4)
of
section
755.
Section
755
of
the
Code
(as
amended
by
S.C.
1983-84,
c.
40,
s.
20(3)),
so
far
as
it
is
material,
reads:
755.
(1)
Where
an
appeal
is
taken
under
section
748
in
respect
of
any
conviction,
acquittal,
sentence
or
order,
the
provisions
of
sections
610
to
616,
with
the
exception
of
subsections
610(3)
and
613(5),
apply
mutatis
mutandis.
(2)
Where
an
appeal
court
orders
a
new
trial,
it
shall
be
held
before
a
summary
conviction
court
other
than
the
court
that
tried
the
defendant
in
the
first
instance,
unless
the
appeal
court
directs
that
the
new
trial
be
held
before
the
summary
conviction
court
that
tried
the
accused
in
the
first
instance.
(3)
Where
an
appeal
court
orders
a
new
trial,
it
may
make
such
order
for
the
release
or
detention
of
the
appellant
pending
such
trial
as
may
be
made
by
a
justice
pursuant
to
section
457
and
the
order
may
be
enforced
in
the
same
manner
as
if
it
had
been
made
by
a
justice
under
that
section
and
the
provisions
of
Part
XIV
apply
mutatis
mutandis
to
the
order.
(4)
Notwithstanding
subsections
(1)
to
(3),
where
an
appeal
is
taken
under
section
748
and
where,
because
of
the
condition
of
the
record
of
the
trial
in
the
summary
conviction
court
or
for
any
other
reason,
the
appeal
court,
upon
application
of
the
defendant,
the
informant,
the
Attorney
General
or
his
agent,
is
of
the
opinion
that
the
interests
of
justice
would
be
better
served
by
hearing
and
determining
the
appeal
by
holding
a
trial
de
novo,
the
appeal
court
may
order
that
the
appeal
shall
be
heard
by
way
of
trial
de
novo
in
accordance
with
such
rules
as
may
be
made
under
section
438
and
for
this
purpose
the
provisions
of
sections
729
to
744
apply
with
such
modifications
as
the
circumstances
require.
(5)
The
appeal
court
may,
for
the
purpose
of
hearing
and
determining
an
appeal
under
subsection
(4),
permit
the
evidence
of
any
witness
taken
before
the
summary
conviction
court
to
be
read
if
that
evidence
has
been
authenticated
in
accordance
with
section
468
and
if
(a)
the
appellant
and
respondent
consent,
(b)
the
appeal
court
is
satisfied
that
the
attendance
of
the
witness
cannot
reasonably
be
obtained,
or
(c)
by
reason
of
the
formal
nature
of
the
evidence
or
otherwise
the
court
is
satisfied
that
the
opposite
party
will
not
be
prejudiced,
and
any
evidence
that
is
read
under
the
authority
of
this
subsection
has
the
same
force
and
effect
as
if
the
witness
had
given
the
evidence
before
the
appeal
court.
We
take
the
following
propositions
to
be
established
by
the
authorities:
1.
The
Crown
is
entitled
under
section
755
to
appeal
on
questions
of
fact:
R.
v.
Antonelli
(1977),
38
C.C.C.
(2d)
206
(B.C.C.A.);
R.
v.
Purves
and
Purves
(1979),
50
C.C.C.
(2d)
211
(Man.
C.A.);
R.
v.
Colbeck
(1978),
42
C.C.C.
(2d)
117
(Ont.
C.A.);
R.
v.
Gillis
(1981),
60
C.C.C.
(2d)
169
(N.S.C.A.).
2.
The
summary
conviction
appeal
court
is
not
empowered
to
retry
the
case
and
on
a
review
of
the
record
to
substitute
its
findings
on
credibility
for
those
of
the
trial
judge;
the
summary
conviction
appeal
court
is
entitled
to
set
aside
an
acquittal
on
questions
of
fact
only
where
the
verdict
is
unreasonable
or
cannot
be
supported
by
the
evidence:
R.
v.
Colbeck
(1978),
42
C.C.C.
(2d)
117
(Ont.
C.A.);
R.
v.
Medicine
Hat
Greenhouses
Ltd.
and
German
(1981),
59
C.C.C.
(2d)
257;
R.
v.
Gillis
(1981),
60
C.C.C.
(2d)
169
(N.S.C.A.).
It
is
thus
apparent
that
historically
in
Canada,
the
prosecutor,
including
the
Crown,
has
always
from
early
times
had
a
right
of
appeal
from
an
acquittal
on
questions
of
fact
in
summary
conviction
matters,
unlike
the
Crown's
right
of
appeal
in
respect
of
an
acquittal
for
an
offence
tried
on
indictment,
which
has
always
been
restricted
to
grounds
of
law
alone.
In
R.
v.
Jordan
(1971),
1
C.C.C.
(2d)
385,
the
Nova
Scotia
Court
of
Appeal
held
that
an
appeal
by
the
Crown
by
way
of
trial
de
novo
from
the
accused's
acquittal
did
not
constitute
double
jeopardy.
This
court
in
R.
v.
Morgentaler,
Smoling
and
Scott,
supra,
found
it
unnecessary
to
decide
for
the
purpose
of
that
appeal
whether
an
appeal
by
the
Crown
by
way
of
a
trial
de
novo
might
in
some
circumstances,
at
any
rate,
contravene
the
principle
that
no
person
shall
be
placed
twice
in
jeopardy
for
the
same
offence
(p.
408),
and
we,
of
course,
are
not
called
on
to
decide
that
issue
in
this
case.
We
are,
however,
satisfied
that
the
Crown's
more
limited
right
of
appeal
under
section
755
on
questions
of
fact
on
the
record,
as
that
right
has
been
delineated
in
the
case
law,
does
not
contravene
either
section
7
or
paragraph
11(h)
of
the
Charter.
8.
Whether
the
Summary
Conviction
Appeal
Court
Judge
was
Empowered
to
Enter
a
Conviction
Counsel
for
the
appellant
also
contended
that
the
summary
conviction
appeal
court
was
not
empowered
to
enter
a
conviction,
but
was
limited
to
ordering
a
new
trial.
It
is
convenient,
for
ease
of
reference,
to
again
reproduce
subsection
755(1)
of
the
Code
which
reads:
755.
(1)
Where
an
appeal
is
taken
under
section
748
in
respect
of
any
conviction,
acquittal,
sentence
or
order,
the
provisions
of
sections
610
to
616,
with
the
exception
of
subsections
610(3)
and
613(5),
apply
mutatis
mutandis.
Subsection
613(4)
of
the
Code
(as
amended
by
S.C.
1985,
c.
19,
s.
143(3))
reads:
(4)
Where
an
appeal
is
from
an
acquittal
the
court
of
appeal
may
(a)
dismiss
the
appeal;
or
(b)
allow
the
appeal,
set
aside
the
verdict
and
(i)
order
a
new
trial,
or
(ii)
except
where
the
verdict
is
that
of
a
court
composed
of
a
judge
and
jury,
enter
a
verdict
of
guilty
with
respect
to
the
offence
of
which,
in
its
opinion,
the
accused
should
have
been
found
guilty
but
for
the
error
in
law,
and
pass
a
sentence
that
is
warranted
in
law,
or
remit
the
matter
to
the
trial
court
and
direct
the
trial
court
to
impose
a
sentence
that
is
warranted
in
law.
[Emphasis
added.]
In
R.
v.
Antonelli,
supra,
the
British
Columbia
Court
of
Appeal
pointed
out
that
the
incorporation
of
subsection
613(4)
by
subsection
755(1)
is
qualified
by
the
words
mutatis
mutandis,
i.e.
“with
the
necessary
changes
in
points
of
detail”.
Farris,
C.J.B.C.,
delivering
the
judgment
of
the
court,
said
at
211-12:
It
seems
to
me
that
a
necessary
change
which
must
be
made
in
s-s.(4)
when
it
is
applied
to
summary
conviction
appeals
is
the
striking
out
of
the
words
“but
for
the
error
in
law”.
Those
words
are
a
necessary
part
of
the
section
as
it
applies
to
appeals
in
proceedings
by
way
of
indictment
because
of
the
application
of
s.
605(1)(a)
restricting
the
Crown
to
appeals
on
questions
of
law
alone.
However,
as
has
already
been
pointed
out,
s.
605(1)(a)
does
not
apply
to
appeals
in
summary
conviction
matters
and
the
words
“but
for
the
error
in
law”
are
thus
irrelevant
in
that
context.
In
R.
v.
Medicine
Hat
Greenhouses
Ltd.
and
German,
supra,
at
269,
Harradence,
J.A.
appears
to
have
accepted
the
reasoning
of
Farris,
C.J.B.C.
that
the
words
mutatis
mutandis
in
subsection
755(1)
make
necessary
a
change
in
subparagraph
613(4)(b)(ii)
by
striking
out
the
words
“but
for
the
error
in
law”.
However,
Stevenson,
J.A.
(with
whom
Lieberman,
J.A.
concurred)
left
open
the
question
whether
the
Summary
Conviction
Appeal
Court's
power
to
enter
a
conviction,
as
distinct
from
ordering
a
new
trial,
was
confined
to
cases
where
there
was
an
error
of
law.
He
said
at
272:
I
assume,
that
under
the
provisions
of
s.
748
of
the
Code
the
Crown
is
not
restricted
to
an
appeal
on
law
alone.
I
prefer,
however,
to
do
as
did
the
majority
in
R.
v.
Purves
and
Purves
(1979),
50
C.C.C.
(2d)
211,
[1980]
1
W.W.R.
148,
12
C.R.
(3d)
362,
and
not
express
an
opinion
on
the
power
of
the
Court
of
Queen's
Bench
acting
under
s.
613
on
an
appeal
from
acquittal.
In
R.
v.
Antonelli
(1977),
38
C.C.C.
(2d)
206,
5
B.C.L.R.
154,
cited
by
Harradence
J.A.,
the
British
Columbia
Court
of
Appeal
found
it
a
“necessary
change
in
detail”
to
delete
the
words
“but
for
the
error
in
law”,
in
s.
613(4)
[am.
1974-75-76,
c.
93,
s.
75].
Harradence
J.A.
accepts
that
deletion.
I
prefer
to
leave
a
decision
on
that
question
for
a
case
in
which
we
have
had
the
benefit
of
full
argument.
It
seems
to
me
at
least
arguable
that
on
an
appeal
which
does
not
involve
an
“error
in
law”
the
Court
of
Queen’s
Bench
may
be
restricted
to
ordering
a
new
trial.
Section
748
gives
the
Crown
a
right
of
appeal
on
an
acquittal.
Section
755
[rep.
&
sub.
1974-75-76,
c.
93
s.
94]
applies
s.
613.
Section
613(4)
prescribes
the
powers
the
appellate
Court
has.
The
imposition
of
a
guilty
verdict
after
acquittal
at
first
instance
is
a
power
not
lightly
granted
and
it
appears
to
me
that
Parliament
might
well
have
chosen
to
allow
the
substitution
of
a
finding
of
guilt
only
where
there
was
an
error
in
law.
I
do
not
want
to
be
taken,
by
this
judgment,
as
foreclosing
that
argument.
Although
we
are
inclined
to
agree
with
the
reasoning
of
the
British
Columbia
Court
of
Appeal
in
R.
v.
Antonelli,
supra,
it
is
unnecessary
to
express
a
final
opinion
on
that
point
in
this
case.
There
were,
as
we
have
previously
mentioned,
errors
of
law
made
by
the
trial
judge.
Credibility
was
not
in
issue
in
this
case,
and,
in
our
view,
the
summary
conviction
appeal
court
was
entitled
to
enter
convictions
for
the
offences.
9.
The
Ki
en
apple
Principle
The
appellant
contended
that
the
conviction
on
the
first
information
precluded
a
conviction
on
the
second
information
on
the
basis
of
the
Kienap-
ple
principle
(Kienapple
v.
The
Queen,
[1975]
1
S.C.R.
729;
15
C.C.C.
(2d)
524),
since
the
same
money
was
involved
in
both
charges.
In
our
view,
the
Kienapple
principle
is
inapplicable
in
this
case.
The
offences
charged
in
the
two
informations
constitute
different
delicts.
The
offences
not
only
are
not
founded
on
the
same
acts,
but
the
offence
charged
in
the
second
information
has
additional
and
distinguishing
elements
from
the
offence
charged
in
the
first:
see
R.
v.
Prince
(1987),
54
C.R.
(3d)
97.
Accordingly,
this
ground
of
appeal
must
be
rejected.
10.
The
Arraignment
Counsel
for
the
appellants
contended
that
the
trial
on
the
second
information
was
a
nullity
since
the
appellants
were
not
arraigned
on
the
offence
charged
in
the
information.
The
appellants
were
arraigned
as
follows:
CLERK
OF
THE
COURT:
URBANO
L.
RAMOS
and
CENTURY
21
RAMOS
REALTY
INC.
(formerly
known
as
L.
Ramos
Realty
Limited)
are
charged
unlawfully
did
in
the
City
of
London,
in
the
County
of
Middlesex
or
elsewhere
in
the
Province
of
Ontario,
between
the
31st
day
of
December,
1977
and
the
4th
day
of
July,
1979
wilfully
evade
the
payment
of
$15,000.00
in
taxes
imposed
by
the
Income
Tax
Act,
R.S.C.
1952,
Chapter
148,
as
amended,
upon
the
said
L.
Ramos
Realty
Limited,
by
failing
to
report
income
in
the
sum
of
$100,000.00
for
the
taxation
year
1978,
and
they
have
thereby
committed
an
offence
contrary
to
Section
239(1)(d)
of
the
said
Act.
Q.
To
that
charge,
how
do
you
plead
—
guilty
or
not
guilty
URBANO
RAMOS?
A.
Not
Guilty.
Q.
And
on
behalf
of
the
company?
A.
Not
Guilty.
It
will
be
seen
that
the
Clerk
of
the
Court
in
reading
to
the
appellants
the
charge
contained
in
the
second
information
omitted
those
words
describing
the
appellant
Urbano
L.
Ramos,
namely,
"R.R.
#3
Glencoe,
Ontario
being
an
officer,
director
or
agent
of
the
said
Century
21
Ramos
Realty
Inc.,
(formerly
known
as
L.
Ramos
Realty
Limited)”.
Counsel
for
the
appellants
relied
upon
the
judgment
of
this
court
in
R.
v.
Arnott
and
St.
James,
[1970]
5
C.C.C.
190.
In
that
case
the
appellant
was
charged
with
theft,
and
there
were
substantial
and
numerous
differences
between
the
information
and
the
arraignment.
The
information
alleged
theft
under
$50
and
the
Canadian
National
Railway
was
stated
to
be
the
owner
of
the
goods
alleged
to
have
been
stolen.
The
arraignment
alleged
theft
over
$50
and
made
no
reference
at
all
to
ownership
in
the
goods
alleged
to
have
been
stolen.
In
addition,
the
arraignment
mentioned
a
different
alleged
place
of
commission
of
the
offence
than
that
specified
in
the
information.
Although
counsel
in
that
case
conceded
that
neither
he
nor
his
clients
were
deceived
or
misled
in
any
way,
the
court
held
that
there
had
been
such
a
grave
departure
from
proper
procedure
that
the
appellants'
convictions
must
be
set
aside
and
a
new
trial
directed.
That
case
is
readily
distinguishable
from
the
one
at
bar.
It
was
unnecessary
to
describe
the
appellant
Urbano
L.
Ramos
in
the
information
as
“an
officer,
director
or
agent”
of
Century
21
Ramos
Realty
Inc.:
see
R.
v.
Paish
(1979),
5
C.R.
(3d)
281
(B.C.C.A.).
The
omission
on
arraignment
of
the
description
of
the
appellant
contained
in
the
information
was
innocuous.
Furthermore,
section
736
of
the
Code
applicable
to
summary
conviction
matters
provides,
in
part:
"Where
the
defendant
appears,
the
substance
of
the
information
shall
be
stated
to
him
.
.
.
and
he
shall
be
asked
whether
he
pleads
guilty
or
not
guilty
.
..”.
[Emphasis
added.]
There
is
no
merit
in
this
ground
of
appeal.
Section
242
of
the
Income
Tax
Act
reads
as
follows:
Where
a
corporation
is
guilty
of
an
offence
under
this
Act,
an
officer,
director
or
agent
of
the
corporation
who
directed,
authorized
assented
to,
acquiesced
in,
or
participated
in,
the
commission
of
the
offence
is
a
party
to
and
guilty
of
the
offence
and
is
liable
on
conviction
to
the
punishment
provided
for
the
offence
whether
or
not
the
corporation
has
been
prosecuted
or
convicted.
Ramos
was
the
sole
shareholder,
director
and
officer
of
Ramos
Realty.
We
have
found
that
Ramos
Realty
was
guilty
of
the
offence
charged
in
the
second
information.
By
virtue
of
section
242,
Ramos
is
also
guilty
of
the
offence.
11.
Conclusion
For
the
reasons
previously
set
out,
leave
to
appeal
is
granted
and
the
conviction
on
the
first
information
is
amended
by
substituting
the
figure
of
$22,338.74
as
the
amount
of
the
tax
avoided
for
the
figure
of
$29,515.70
alleged
in
the
information.
The
sentence
imposed
on
this
conviction
is
set
aside
and
the
matter
is
remitted
to
the
summary
conviction
appeal
court
judge
to
impose
a
fit
sentence
on
the
amended
conviction.
We
should
add
that
counsel
for
the
Attorney
General
of
Canada
agreed
that
if
the
court
amended
the
conviction
as
aforesaid,
this
was
the
appropriate
course
to
follow
with
respect
to
sentence.
The
appeal
is
otherwise
dismissed.
Order
accordingly.
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