Hinkson,
J.A.:—This
is
an
appeal
from
the
conviction
of
the
appellant
for
failure
to
comply
with
demands
made
by
the
Minister,
pursuant
to
the
provisions
of
subsection
231(3)
of
the
Income
Tax
Act.
The
circumstances
are
that
the
Minister
made
four
demands,
pursuant
to
that
section
on
December
21,
1982.
Those
demands
were
as
follows:
(a)
a
signed
statement
of
assets
and
liabilities
as
at
December
31,
1979;
(b)
a
signed
statement
of
assets
and
liabilities
as
at
December
31,
1980;
(c)
a
signed
statement
of
assets
and
liabilities
as
at
December
31,1981;
(d)
a
list
of
the
names
and
addresses
of
all
persons
and/or
corporations
from
whom
he
or
anyone
acting
on
his
behalf
received
salary,
wages,
commissions,
gratuities,
director’s
or
other
fees
and
any
other
remuneration
for
the
period
January
1,
1979
to
December
31,
1981,
and
the
production
of
certain
books
and
records.
The
appellant
failed
to
comply
with
these
demands
and
was
charged
by
Information,
pursuant
to
the
provisions
of
the
Income
Tax
Act.
On
May
27,
1983,
the
appellant
pled
guilty
to
the
four
counts
and
received
a
fine
of
$200
on
each
count,
which
fines
were
paid
by
the
appellant.
On
October
18,
1983,
the
appellant
was
served
again
with
demands
pursuant
to
subsection
238(3)
[sic]
of
the
Income
Tax
Act
to
provide
the
Department
of
National
Revenue
with
the
same
information
and
documents
previously
requested
on
December
21,
1982.
The
appellant
failed
to
comply
with
these
demands
and
was
charged
pursuant
to
subsection
238(2)
of
the
Income
Tax
Act
with
three
counts
under
paragraph
231(3)(a)
and
one
count
under
paragraph
231
(3)(b).
On
June
26,
1984,
the
appellant
was
convicted
of
the
four
counts.
He
was
then
fined
$300
on
each
of
the
first
three
counts
and
sentenced
to
90
days
in
jail
on
the
fourth
count.
An
appeal
was
taken
to
the
County
Court
and
on
appeal
a
fine
of
$2,500
was
substituted
for
the
sentence
on
count
4
of
90
days
imprisonment.
Otherwise,
the
appeal
was
dismissed.
It
is
from
these
convictions
that
this
appeal
is
brought.
The
issue
raised
by
the
appellant
is
whether
or
not,
having
regard
to
the
fact
that
he
was
charged
and
convicted
as
a
result
of
the
demand
made
on
December
21,
1982,
it
was
open
to
the
Minister
to
lay
a
fresh
Information
and
obtain
another
conviction
on
June
26,
1984.
Counsel
for
the
Minister
has
referred
us
to
the
provisions
of
subsection
238(1)
of
the
Income
Tax
Act,
which
deals
with
failure
to
file
a
return.
That
section
provides:
(1)
Every
person
who
has
failed
to
file
a
return
as
and
when
required
by
or
under
this
Act
or
a
regulation
is
guilty
of
an
offence
and,
in
addition
to
any
penalty
otherwise
provided,
liable
on
summary
conviction
to
a
fine
of
not
less
than
$25
for
each
day
of
default.
The
section
pursuant
to
which
the
Minister
made
the
demands
in
the
present
case
is
subsection
231(3).
It
provides:
(3)
The
Minister
may,
for
any
purposes
related
to
the
administration
or
enforcement
of
this
Act,
by
registered
letter
or
by
a
demand
served
personally,
require
from
any
person
(a)
any
information
or
additional
information,
including
a
return
of
income
or
a
supplementary
return,
or
(b)
production,
or
production
on
oath,
of
any
books,
letters,
accounts,
invoices,
statements
(financial
or
otherwise)
or
other
documents,
within
such
reasonable
time
as
may
be
stipulated
therein.
The
charging
section
is
contained
in
subsection
238(2).
It
provides:
(2)
Every
person
who
has
failed
to
comply
with
or
contravened
subsection
116(3),
127(3.1)
or
(3.2),
153(1),
227(5),
230.1(1)
or
230.1(2),
or
section
230
or
231
is
guilty
of
an
offence
and,
in
addition
to
any
penalty
otherwise
provided,
is
liable
on
summary
conviction
to
(a)
a
fine
of
not
less
than
$200
and
not
exceeding
$10,000,
or
(b)
both
the
fine
described
in
paragraph
(a)
and
imprisonment
for
a
term
not
exceeding
6
months.
It
is
the
submission
of
the
appellant
on
this
appeal
that
the
provisions
of
subsection
231(2)
provide
for
one
demand
only
and
that
when
a
conviction
is
obtained
for
failure
to
comply
with
that
demand
it
is
not
open
to
the
Minister
to
then
make
a
fresh
demand
covering
the
same
period
of
time
and
the
same
information
sought
in
the
first
demand.
Counsel
for
the
appellant
made
reference
to
the
decision
of
the
Quebec
Court
of
Appeal,
R.
v.
Filteau,
[1985]
1
C.T.C.
19;
17
C.C.C.
(3d)
570.
The
court
in
that
case
concluded
that
it
was
not
open
to
the
Minister
to
lay
a
fresh
charge
for
failure
to
comply
with
a
second
demand.
Counsel
for
the
Minister
contended
that
decision
was
erroneous
and
made
reference
to
decisions
in
the
Ontario
Courts,
R.
v.
Smith,
(1958)
120
C.C.C.
241;
[1958]
O.W.N.
277,
a
decision
of
Chief
Justice
McRuer;
R.
v.
Subacious,
[1978]
C.T.C.
610;
(1978)
43
C.C.C.
(2d)
42,
a
decision
of
the
Ontario
Court
of
Appeal;
and
R.
v.
Sakellis,
[1970]
C.T.C.
342;
(1970)
2
C.C.C.
378.
The
decisions
in
Smith
and
Subacious
dealt
with
the
provisions
of
subsection
238(1)
of
the
Income
Tax
Act.
Mr.
Justice
Martin,
in
delivering
the
judgment
of
the
Court
in
Subacious
said
at
612
(C.C.C.
44)
in
dealing
with
a
contention
that
subsection
238(1)
of
the
Income
Tax
Act
provided
for
only
one
charge
and
one
conviction:
Kienapple
v.
The
Queen,
supra,
precludes
more
than
one
conviction
for
the
same
matter
or
delict.
We
think
it
is
quite
clear
that
under
the
Income
Tax
Act,
each
day
of
default
constitutes
a
separate
matter
or
delict
and
hence
the
principle
in
Kienapple
v.
The
Queen
does
not
apply.
Dean
Friedland,
in
his
well-known
work
Double
Jeopardy
(Oxford:
Clarendon
Press,
1969),
says
at
217:
As
pointed
out
above
the
rule
preventing
multiple
convictions
must
give
way
to
a
clear
legislative
intent;
and
there
are
numerous
statutes
which
provides
specifically
for
cumulative
penalties,
such
as
a
certain
penalty
for
each
day
that
the
offence
continues.
I
respectfully
agree
with
that
reasoning
with
reference
to
subsection
238(1)
of
the
Income
Tax
Act,
but
when
regard
is
had
for
the
provisions
of
subsection
231(3)
of
the
Act,
it
is
not
clear
that
Parliament
intended
that
the
Minister,
having
laid
a
charge
for
failure
to
comply
with
a
demand
pursuant
to
that
subsection,
and
having
obtained
a
conviction,
was
at
liberty
to
make
a
fresh
demand
and
upon
failure
to
comply
with
that
fresh
demand
to
then
lay
a
charge
and
obtain
a
conviction
for
failure
to
comply
with
that
fresh
demand,
When
the
penalty
provided
in
subsection
238(2)
of
the
Act
is
considered
in
relation
to
a
failure
to
comply
with
a
demand
pursuant
to
subsection
231(3)
in
my
opinion
the
type
of
penalty
provided
in
that
subsection
indicates
that
Parliament
intended
that
the
penalty
be
imposed
only
once
for
failure
to
comply
with
a
demand
pursuant
to
subsection
231(3).
The
amount
provided
of
between
$200
and
$10,000
does
not
indicate
to
me
that
Parliament
intended
that
the
Minister
be
able
to
repeatedly
make
the
demand
if
the
taxpayer
failed
to
comply
with
the
first
demand,
and
then
when
subparagraph
(b)
is
considered,
that
in
addition
to
a
maximum
fine
of
$10,000
a
term
of
imprisonment
not
exceeding
six
months
is
provided,
I
am
of
the
view
that
Parliament
did
not
intend
that
the
taxpayer
be
open
to
continued
demands
by
the
Minister
and
the
imposition
of
continued
penalties
of
that
magnitude.
For
these
reasons
I
would
allow
the
appeal.
Appeal
allowed.
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