Whealy,
D.C.J.:—This
is
a
summary
conviction
appeal
by
the
Crown
from
the
decision
of
His
Honour
Provincial
Court
Judge
T.
Mercer
in
which
he
stayed
count
one
of
the
information
because
he
found
that
the
accused
had
been
placed
in
double
jeopardy
contrary
to
section
7
of
the
Charter
of
Rights
and
Freedoms.
The
information
contained
originally
seven
counts.
Count
one
will
be
further
dealt
with
below.
The
Crown
elected
not
to
proceed
against
the
accused
on
counts
two,
three
and
four
and
the
accused
entered
pleas
of
guilty
on
counts
five,
six
and
seven.
Although
the
accused
admits
all
the
factual
allegations
of
the
Crown
with
respect
to
count
one,
he
entered
a
plea
of
not
guilty
at
trial
and
as
his
only
defence
pleaded
the
protection
of
section
7
of
the
Charter
of
Rights
and
Freedoms.
What
gave
rise
to
the
claim
of
protection
was
that
the
Minister
of
National
Revenue
on
February
4,
1986,
pursuant
to
section
163
of
the
Income
Tax
Act,
reassessed
the
respondent
by
imposing
the
25
per
cent
penalty
referred
to
in
that
section.
The
file
was
then
referred
to
the
Attorney
General
of
Canada
who
caused
an
information
to
be
sworn
with
the
seven
counts
on
March
13,
1986.
The
respondent
had
90
days
within
which
to
appeal
the
reassessment
under
section
163
but
apparently
filed
his
appeal
a
few
days
late
in
the
Tax
Court
of
Canada.
It
would
appear
that
the
Minister
of
National
Revenue
is
either
resisting
or
has
successfully
resisted
the
validity
of
the
appeal,
but
counsel
before
me
were
uncertain
as
to
whether
the
reassessment
was
final
or
would
be
the
subject
of
further
proceedings
on
the
civil
side.
The
section
which
the
Minister
purported
to
reassess
under
reads
as
follows:
163
(2)
Every
person
who,
knowingly,
or
under
circumstances
amounting
to
gross
negligence
in
the
carrying
out
of
any
duty
or
obligation
opposed
by
or
under
this
Act,
has
made
or
has
participated
in,
assented
to
or
acquiesced
in
the
making
of,
a
false
statement
or
omission
in
a
return,
.
.
.
is
liable
to
a
penalty
of:
(a)
25%
of
the
amount,
if
any,
by
which
.
.
.
the
tax
payable
has
been
evaded.
Subsection
239(1)
of
the
same
Act
reads
as
follows:
239
(1)
Every
person
who
has
(a)
made,
or
participated
in,
assented
to
or
acquiesced
in
the
making
of,
false
or
deceptive
statements
in
a
return,
.
.
.
filed
or
made
as
required
or
under
this
Act
or
a
regulation;
(d)
wilfully,
in
any
manner,
evaded
or
attempted
to
evade,
compliance
with
this
Act
or
payment
of
taxes
imposed
by
this
Act,
or
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.
Finally,
subsection
239(3)
reads:
239(3)
Where
a
person
has
been
convicted
under
this
section
of
wilfully,
in
any
manner,
evading
or
attempting
to
evade
payment
of
taxes
imposed
by
Part
I,
he
is
not
liable
to
pay
a
penalty
imposed
under
s.
163
for
the
same
evasion
or
attempt
unless
he
was
assessed
for
that
penalty
before
the
information
or
complaint
giving
rise
to
the
conviction
was
laid
or
made.
An
argument
was
made
to
Judge
Mercer
at
trial,
which
he
accepted,
concerning
section
7
of
the
Charter
of
Rights
and
Freedoms
which
reads
as
follows:
7.
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.
The
successful
argument
ran:
that
section
7
is
a
statement
of
general
principle
and
is
larger
and
subsumes
sections
8
to
14
inclusive
with
which
it
is
associated
under
the
same
heading
of
the
Charter.
In
addition
to
the
cases
considered
by
Judge
Mercer,
two
new
cases
have
been
placed
before
me
which,
although
decided
before
Judge
Mercer's
decision
on
October
27,
1987,
were
apparently
unknown
to
either
counsel
or
the
learned
judge.
The
earliest
of
these
cases
is
R.
and
Georges
Contracting
Ltd.,
George
Arthur
Cloarec,
15
B.C.L.R.
(2d)
240,
a
decision
of
Mr.
Justice
Toy
in
the
Supreme
Court
of
British
Columbia.
He
was
hearing
an
appeal
of
a
Provincial
Court
decision
and
in
essence
rejected
a
claim
of
Charter
protection
pursuant
to
paragraph
11(h)
of
the
Charter
in
circumstances
virtually
identical
to
those
before
me.
The
second
was
The
Queen
v.
Yogendra
Sharma,
a
decision
of
Mr.
Justice
Smith
in
the
Supreme
Court
of
Ontario
also
dealing
with
a
claim
of
protection
under
paragraph
11(h)
of
the
Charter
decided
September
29,
1987
(unreported)
in
which
he
considered
Mr.
Justice
Toy's
decision
in
Cloarec.
He
also
came
to
the
same
conclusion
and
denied
Charter
protection.
In
this
appeal
the
respondent
has
not
sought
to
employ
paragraph
11(h)
of
the
Charter
and
indeed
concedes
that
I
am
bound
by
the
two
cases
I
have
already
mentioned
as
well
as
perhaps
other
case
law.
The
respondent
argues
that
under
section
239
his
liberty
is
certainly
at
risk
because
of
the
penalty
clause
and
thus
under
section
7
what
he
must
establish
to
my
satisfaction
on
this
appeal
is
that
his
liberty
is
unfairly
at
risk
in
accordance
with
the
principles
of
fundamental
justice;
in
this
case,
the
fundamental
principles
of
justice
forbidding
double
jeopardy.
It
is
further
argued
that
the
phrase
double
jeopardy,
although
most
commonly
applied
to
multiple
trials,
really
originates
in
a
principle
forbidding
double
punishment.
The
respondent
argues,
therefore,
that
having
been
penalized
under
section
163
he
is
in
jeopardy
of
being
penalized
a
second
time
under
subsection
239(1)
and
that
this
is
contrary
to
well
established
principles
of
fundamental
justice.
The
appellant's
position,
extremely
briefly,
is
that
the
procedure
under
section
163
is
in
the
first
instance
merely
administrative,
and
if
appealed
against
follows
the
format
of
a
civil
action
or
appeal
and
that
the
25
per
cent
assessment
should
be
considered
in
the
nature
of
punitive
damages
in
a
Civil
sense,
while
section
239
is,
to
quote
Mr.
Justice
Toy,
“S.
239(1)(a),
although
a
provision
of
the
Income
Tax
Act
is
truly
an
exercise
of
the
power
of
the
Government
of
Canada
to
legislate
in
the
field
of
criminal
law."
Mr.
Stone
argues
vigorously
that
there
are
many
situations
where
both
criminal
prosecution
and
a
civil
"remedy"
are
available
and
cites
as
an
example
a
conviction
under
the
Criminal
Code
for
what
is
generally
referred
to
as
impaired
driving
which
automatically
results
in
another
penalty
outside
the
criminal
court,
the
loss
of
the
accused's
driving
privileges
by
the
administrative
act
of
a
provincial
legislature.
One
argument
put
to
me
by
the
respondent
which
impresses
me
is
that
in
the
situation
before
me
the
Crown
being
one
and
indivisible
has
chosen
two
routes
under
the
same
statute
over
which
it
has
total
control
as
to
its
content
which
results
in
two
penalties
being
imposed,
whereas
in
all
of
the
other
cases
either
two
different
governments,
i.e.
Crowns,
are
involved
or
there
is
only
one
Crown
and
an
individual
involved.
Another
argument
which
appeals
to
me
is
the
fact
that
there
appears
to
be
no
decision
which
squarely
faces
the
issue
I
am
dealing
with
although
I
will
make
some
allusion
to
a
Supreme
Court
of
Canada
decision
further
down.
I
have
no
hesitation
in
saying
that
I
agree
with
Mr.
Stone's
argument
that
where
there
is
a
matter
of
claiming
protection
under
paragraph
11(h)
the
result
would
be
automatic
as
I
would
be
bound
by
the
Sharma
decision
noted
above.
The
most
recent
case
of
the
Supreme
Court
of
Canada
brought
to
my
attention
concerning
the
issue
of
double
jeopardy
plus
the
issue
of
Charter
protections
is
Wigglesworth
v.
The
Queen,
an
as
yet
unreported
judgment
of
November
19,
1987
with
reasons
for
judgment
by
The
Honourable
Madam
Justice
Wilson
and
concurred
in
by
Chief
Justice
Dickson
and
Mr.
Justices
Beetz,
McIntyre,
Lamer
and
LaForest.
There
was
a
dissent
by
Mr.
Justice
Estey.
In
brief,
the
factual
basis
of
that
case
was
that
a
member
of
the
R.C.M.
Police
had
been
disciplined
under
the
Royal
Canadian
Mounted
Police
Act
for
a
"major
service
offence”
which
was
followed
by
the
laying
of
an
information
under
the
Criminal
Code
and
the
accused
policeman
sought
to
have
the
information
quashed
claiming
the
protection
of
section
11
of
the
Charter.
The
outcome
of
the
appeal
in
the
Supreme
Court
of
Canada
is
summed
up
in
these
words
of
Madam
Justice
Wilson,
I
would
hold
that
the
appellant
in
this
case
is
not
being
tried
and
punished
for
the
same
offence.
The
“offences”
are
quite
different.
One
is
an
internal
disciplinary
matter.
The
accused
had
been
found
guilty
of
a
major
service
offence
and
has,
therefore,
accounted
to
his
profession.
The
other
offence
is
a
criminal
offence
of
assault.
The
accused
must
now
account
to
society
at
large
for
his
conduct.
He
cannot
complain,
as
a
member
of
a
special
group
of
individuals
subject
to
private
internal
discipline,
that
he
ought
not
to
account
to
society
for
his
wrongdoing.
In
the
course
of
reaching
this
conclusion,
Madam
Justice
Wilson
accepted
a
large
number
of
cases
as
well
as
articles
dealing
with
double
punishment.
At
page
18
of
the
released
judgment,
she
says,
in
part,
In
"Annotation
to
R.
v.
Wigglesworth"
(1984),
38
C.R.
(3d)
388
at
389,
Professor
Stuart
states:
.
.
.
other
punitive
forms
of
disciplinary
measures,
such
as
fines
or
imprisonment,
are
indistinguishable
from
criminal
punishment
and
should
surely
fall
within
the
protection
of
s.
11(h)".
I
would
agree
with
this
comment
but
with
two
caveats.
First,
the
possibility
of
a
fine
may
be
fully
consonant
with
the
maintenance
of
discipline
and
order
within
a
limited
private
sphere
of
activity
and
thus
it
may
not
attract
the
application
of
s.
11.
It
is
my
view
that
if
a
body
or
an
official
has
an
unlimited
power
to
fine,
and
it
does
not
afford
the
rights
enumerated
under
s.
11,
it
cannot
impose
fines
designed
to
redress
the
harm
done
to
society
at
large.
Instead
it
is
restricted
to
the
power
to
impose
fines
in
order
to
achieve
particular
private
purpose.
One
indicium
of
the
purpose
of
a
particular
fine
is
how
the
body
is
to
dispose
of
the
fines
that
he
collects.
If,
as
in
the
case
of
proceedings
under
the
Royal
Canadian
Mounted
Police
Act
the
fines
are
not
to
form
part
of
the
Consolidated
Revenue
Fund
but
are
to
be
used
for
the
benefit
of
the
Force,
it
is
more
likely
that
the
fines
are
purely
an
internal
or
private
matter
of
discipline:
Royal
Canadian
Mounted
Police
Act,
s.
45.
The
second
caveat
I
would
raise
is
that
it
is
difficult
to
conceive
of
the
possibility
of
a
particular
proceeding
failing
what
I
have
called
the
“by
nature”
test
but
passing
what
I
have
called
the
“true
penal
consequence"
test.
I
have
grave
doubts
whether
any
body
or
official
which
exists
in
order
to
achieve
some
administrative
or
private
disciplinary
purpose
can
ever
imprison
an
individual.
Such
a
deprivation
of
liberty
seems
justified
as
being
in
accordance
with
fundamental
justice
under
s.
7
of
the
Charter
only
when
a
public
wrong
or
transgression
against
society,
as
opposed
to
an
internal
wrong,
is
committed.
However,
as
this
was
not
argued
before
us
in
this
appeal
I
shall
assume
that
it
is
possible
that
the
“by
nature”
test
can
be
failed
but
that
the
"true
penal
consequence"
test
passed.
Very
shortly
later,
Madam
Justice
Wilson
makes
the
following
observation,
Before
turning
to
the
application
of
the
law
to
the
facts
of
this
case,
I
want
to
emphasize
that
nothing
in
the
above
discussion
takes
away
from
the
possibility
that
constitutionally
guaranteed
procedural
protections
may
be
available
in
a
particular
case
under
s.
7
of
the
Charter
even
though
s.
11
is
not
available.
The
appellant
in
this
case
has
chosen
to
base
his
case
solely
on
s.
11
of
the
Charter.
In
view
of
this
I
make
no
comment
on
the
applicability
of
s.
7.
The
portions
of
the
Wigglesworth
decision
that
I
have
quoted
above
seem
clearly
to
invite
the
kind
of
application
and
argument
that
has
been
placed
before
me.
And
the
issue
would
seem
to
be
twofold:
first
of
all,
is
it
a
factual
situation
which
will
not
fit
within
section
11
of
the
Charter
but
might
well
fit
within
section
7
as
Madam
Justice
Wilson
remarks.
And
the
second
point
is,
what
fundamental
principles
of
justice
are
being
violated
for
the
latter
inquiry
is
really
a
qualifier
to
the
general
statement
in
the
opening
words
of
section
7.
As
well,
I
would
note
that
the
Wigglesworth
decision
is
clearly
dealing
with
double
punishment
rather
than
double
prosecution.
Both
counsel
in
this
appeal
attach
a
great
deal
of
importance
to
this
appeal
and
I
have
little
doubt
that
it
may
well
be
brought
to
the
attention
of
another
court.
Accordingly,
I
intend
only
now
to
cite
the
various
cases
which
were
referred
to
me
which
I
have
read
and
assimilated
in
order
to
reach
the
conclusion
that
I
have
reached.
The
following
cases:
Reference
re
s.
94(2)
of
the
Motor
Vehicle
Act
(1985),
23
C.C.C.
(3d)
289;
Kienapple
v.
The
Queen,
[1975]
1
S.C.R.
729;
15
C.C.C.
(2d)
524;
Hudson
v.
Lee
(1589),
4
Co.
Rep.
43a,
76
E.R.
989;
Wemyss
v.
Hopkins
(1875),
10
L.R.Q.B.
378;
Duhamel
v.
The
Queen,
[1984]
2
S.C.R.
555;
14
D.L.R.
(4th)
92;
Krug
v.
The
Queen
(1982),
7
C.C.C.
(3d)
324,
affm'd
21
D.L.R.
(4th)
161
(S.C.C.);
Wigglesworth
v.
The
Queen
(1987),
November
19,
1987,
(unreported);
Re
Trumbley
et
al.
and
Fleming
et
al.
and
three
other
appeals,
55
O.R.
(2d)
570
[which
seems
to
be
affirmed
by
the
Supreme
Court
of
Canada
in
the
Wigglesworth
decision
as
it
was
the
same
issue];
Re
Regina
and
Green
(1983),
5
C.C.C.
(3d)
95;
R.
v.
Mingo
et
al.,
2
C.C.C.
(3d)
23;
as
well
as
the
two
cases
which
I
cited
at
the
very
beginning
of
this
judgment.
In
addition,
I
have
read
the
following
article:
Double
Jeopardy,
Martin
L.
Friedland,
1969,
Oxford,
Clarendon
Press,
pages
3-5,
8,
9,
195-196,
315-318.
It
is
my
view
that
subsection
163(2)
in
the
opening
paragraph
makes
it
absolutely
clear
that
a
penalty
is
being
imposed
on
the
taxpayer
by
way
of
a
reassessment
but
which
is
appealable
according
to
a
civil
procedure.
It
is
equally
apparent
to
me
that
subsection
239(1)
imposes
a
penalty
but
in
these
words,
”.
.
.
and,
in
addition
to
any
other
penalty
otherwise
provided,
is
liable
on
summary
conviction
.
.
.".
Notwithstanding
the
apparent
authority
under
section
239
to
impose
a
penalty
thereunder
in
addition
to
any
other
penalty,
it
is
my
view
that
that
language
is
subject
to
the
overriding
purview
of
section
7
of
the
Charter
and
that
the
respondent
in
this
case
is
being
exposed
to
double
punishments
for
the
same
delict.
It
matters
not
whether
the
penalties
fall
under
the
rubric
of
civil
or
criminal
if
a
single
and
indivisible
"Crown"
is
the
author
of
both
matters.
Under
those
circumstances
I
am
of
the
view
that
the
declaration
of
Judge
Mercer
was
correct
and
the
appeal
is
dismissed.
Appeal
dismissed.
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