Smith
J.
[Orally]:—The
question
in
this
proceeding
is
whether
Judge
J.D.
Smith
was
right
to
stay
proceedings
in
the
prosecution
of
the
accused
Yogendra
Sharma
under
section
239
of
the
Income
Tax
Act,
the
prosecution
being
under
section
239
of
the
Income
Tax
Act.
The
learned
judge
invoked
the
provisions
of
paragraph
11(h)
of
the
Charter
which
reads
as
follows:
Proceedings
in
Criminal
and
Penal
Matters
11.
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
He
held
that
the
section
applied
in
that
the
accused
had
already
been
assessed
penalties
of
25
per
cent
of
the
reassessed
amounts
under
subsection
163(2).
A
similar
situation
developed
in
British
Columbia
where
a
Provincial
Court
judge
in
R.
v.
Georges
Contracting
Ltd.
and
George
Arthur
Cloarec
had
reasoned
as
did
Judge
Smith
in
this
instance.
Mr.
Justice
Toy,
who
heard
the
appeal,
disagreed.
I
respectfully
agree
with
Toy,
J.'s
disposition
of
the
matter.
He
appears
to
have
based
his
decision
mainly
upon
the
absence
of
a
hearing.
I
am
not
certain
that
it
ought
to
be
the
determining
factor.
However,
I
agree
that
the
imposition
of
the
penalties
did
not
amount
to
either
a
trial
or
to
a
final
finding
of
guilt
in
the
sense
contemplated
by
paragraph
11(h)
of
the
Charter.
With
respect
for
Judge
Smith
and
for
counsel
who
appeared
before
me
and
argued
the
case
well
and
forcefully,
the
Ontario
case
of
Re
Trumbley
et
al.
and
Re
Fleming
et
al.
and
three
other
appeals
(1986),
55
O.R.
(2d)
570,
do
not
assist
him.
In
my
view
it
supports
the
Crown
position,
even
though
the
question
before
the
Court
was
a
different
one.
It
was
there
held
that
the
thrust
of
the
section
11
provision
of
the
Charter
was
entirely
of
a
criminal
law
nature
and
unless
it
was
confined
to
criminal
or
penal
offences
there
would
be
serious
difficulties
in
the
way
of
giving
it
a
reasonably
consistent
application.
Morden,
J.A.,
speaking
for
the
Court,
said
in
part
at
page
582:
The
proper
determination
of
the
scope
of
the
opening
words
of
s.
11
requires
that
they
be
interpreted
in
the
context
of
the
whole
of
s.
11,
i.e.,
taking
into
account
all
of
its
nine
paragraphs.
He
goes
on
to
set
out
section
11
in
full
and
then
on
page
583
he
adds
the
following:
This
section
is
replete
with
criminal
law
terms,
such
as
“tried”,
"presumed
innocent
until
proven
guilty”,
“reasonable
bail”,
“punishment
for
the
offence”,
“acquitted
for
the
offence”,
and
"found
guilty
of
the
offence”.
Indeed,
the
word
“offence”
is
itself
a
criminal
law
term,
as
opposed
to
a
civil
law
term.
Accordingly,
the
clear
impression
created
by
s.
11,
read
as
a
whole,
is
that
it
is
intended
to
provide
procedural
safeguards
relating
to
the
criminal
law
process.
The
thrust
of
the
provision
is
entirely
of
a
criminal
law
nature.
Taking
this,
and
the
features
of
context
which
I
shall
discuss,
into
account,
it
is
my
view
that
offence
means
an
“offence”
which
is
prosecuted
in
a
criminal
or
penal
proceeding.
I
do
not
think
that
these
penalties,
which
were
imposed
by
the
Department,
were
imposed
in
a
criminal
or
a
penal
proceeding.
I
am
further
of
the
view
that
the
Kienapple
principle
has
no
application.
The
section
163
penalty
is
not
the
result
of
a
prosecution
with
a
consequent
punishment.
I
agree
with
the
Crown
in
its
initial
comments
that
the
effect
of
Judge
Smith's
decision
in
the
circumstances
before
him
was
to
have
ruled
as
unconstitutional
the
provisions
calling
for
both
the
penalty
of
the
section
163
variety,
and
a
penalty
following
a
prosecution.
That
matter
was
not
before
him
and,
like
Toy,
J.,
I
say
nothing
of
the
validity
of
the
income
tax
provisions
in
respect
of
penalties.
In
fact
the
Crown,
I
believe,
if
I
heard
counsel
correctly,
concedes
in
this
case
that
the
penalty
should
not
have
been
assessed
and
is
a
nullity
because
it
followed
the
issue
of
the
warrant.
In
the
result,
the
appeal
is
allowed,
the
order
of
Judge
Smith
is
set
aside
and
the
case
is
remitted
back
to
him
or
to
a
judge
of
his
court
for
trial
at
Brampton.
Appeal
allowed.
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