Houlden,
JA
[ORALLY]:—The
respondent
was
charged
by
an
information
sworn
February
1,
1983,
that
it:
.
.
.
between
the
1st
day
of
December
1982
and
the
31st
day
of
January
1983,
at
the
Municipality
of
Metropolitan
Toronto,
in
the
Judicial
District
of
York,
unlawfully
did
being
required
to
pay
sales
tax
imposed
by
Part
V
of
the
Excise
Tax
Act,
RSC
1970,
Chapter
E-13,
and
amendments
thereto,
fail
to
pay
within
the
time
prescribed
by
Section
50(3)
of
the
said
Act
the
sales
tax
payable
for
the
month
of
October
1982,
in
the
amount
of
ONE
THOUSAND
SIX
HUNDRED
AND
TWO
DOLLARS
AND
THIRTY
THREE
CENTS
($1,602.33)
and
did
thereby
commit
an
offence
contrary
to
Section
55(1)
of
the
said
Act
and
amendments
thereto,
AND
FURTHER
between
the
1st
day
of
January
1983
and
the
31st
day
of
January
1983,
at
the
Municipality
of
Metropolitan
Toronto,
in
the
Judicial
District
of
York,
unlawfully
did
being
required
to
pay
sales
tax
imposed
by
Part
V
of
the
Excise
Tax
Act,
RSC
1970,
Chapter
E-13,
and
amendments
thereto,
fail
to
pay
within
the
time
prescribed
by
Section
50(3)
of
the
said
Act
the
sales
tax
payable
for
the
month
of
November
1982,
in
the
amount
of
ONE
THOUSAND
FIVE
HUNDRED
AND
SIXTY
EIGHT
DOLLARS
AND
FIFTY
SIX
CENTS
($1,568.56)
and
did
thereby
commit
an
offence
contrary
to
Section
55(1)
of
the
said
Act
and
amendments
thereto.
On
March
15,
1983,
the
respondent
pleaded
guilty
to
the
two
charges.
Crown
counsel
advised
the
trial
judge
that
with
respect
to
the
amount
referred
to
in
count
one,
the
tax
was
paid
in
full
on
February
15,
1983;
and
with
respect
to
the
amount
referred
to
in
count
two,
the
sum
of
$500
was
paid
on
March
3,
1983,
leaving
a
balance
owing
at
the
date
of
trial
of
$1,068.56.
The
trial
judge
imposed
a
fine
on
count
one
of
$25
and
on
count
two
of
$25
plus
the
amount
still
owing
for
tax
at
the
date
of
trial.
The
Crown
appealed
to
the
County
Court
against
the
amount
of
the
fine,
but
the
appeal
was
dismissed.
In
dismissing
the
appeal,
the
County
Court
Judge
said:
The
appeal
is
dismissed.
There
is
nothing
in
Section
55
of
the
Excise
Tax
Act
which
states
that
the
amount
of
unpaid
tax
upon
which
the
fine
is
levied
is
not
the
amount
unpaid
as
of
the
date
of
trial.
The
relevant
sections
of
the
Excise
Tax
Act
are
the
following:
50.
(3)
The
return
required
by
this
section
shall
be
filed
and
the
tax
payable
shall
be
paid
(a)
in
a
case
where
the
return
is
required
to
be
filed
in
accordance
with
subsection
(1)
or
(2),
not
later
than
the
last
day
of
the
first
month
succeeding
that
in
which
the
sales
were
made;
(b)
in
a
case
where
the
return
is
authorized
to
be
filed
in
accordance
with
a
regulation
made
under
paragraph
(2.
l)(a),
not
later
than
the
thirty-first
day
following
the
end
of
the
perid
to
which
the
return
relates;
and
(c)
in
a
case
where
the
return
is
authorized
to
be
filed
in
accordance
with
a
regulation
made
under
paragraph
(2.1)(b)
or
(c),
not
later
than
the
last
day
of
the
first
month
following
the
end
of
the
period
to
which
the
return
relates.
54.
(1)
The
amount
of
all
penalties,
except
as
herein
otherwise
provided,
belong
to
Her
Majesty
for
the
public
uses
of
Canada
and
form
part
of
the
Consolidated
Revenue
Fund.
(2)
Where
a
penalty
calculated
by
reference
to
the
amount
of
the
tax
that
should
have
been
paid
or
collected
or
the
amount
of
stamps
that
should
have
been
affixed
or
cancelled
is
imposed
and
recovered
under
or
pursuant
to
this
Act,
the
Minister
may
direct
that
the
amount
thereof
be
applied
on
account
of
the
tax
that
should
have
been
paid
or
collected
or
the
indebtedness
arising
out
of
the
failure
to
affix
or
cancel
the
stamps.
55.
(1)
Every
person
who,
being
required,
by
or
pursuant
to
this
Act,
to
pay
or
collect
taxes
or
other
sums,
or
to
affix
or
cancel
stamps,
fails
to
do
so
as
required
is
guilty
of
an
offence
and,
in
addition
to
any
other
penalty
or
liability
imposed
by
law
for
such
failure,
is
liable
on
summary
conviction
to
a
penalty
(a)
not
being
less
than
the
aggregate
of
twenty-five
dollars
and
an
amount
equal
to
the
tax
or
other
sum
that
he
should
have
paid
or
collected
or
the
amount
of
stamps
that
he
should
have
affixed
or
cancelled,
as
the
case
may
be,
and
(b)
not
exceeding
the
aggregate
of
one
thousand
dollars
and
an
amount
equal
to
the
aforesaid
tax
or
other
sum
or
aforesaid
amount
of
stamps,
as
the
case
may
be;
and
in
default
of
payment
thereof
to
imprisonment
for
a
term
of
not
less
than
thirty
days
and
not
more
than
twelve
months.
69.
(1)
Notwithstanding
any
other
statute
or
law,
the
court
in
any
prosecution,
suit
or
proceeding
under
this
Act,
has
no
power
to
impose
less
than
the
minimum
penalty
or
punishment
prescribed
by
this
Act
and
the
court
has
no
power
to
suspend
sentence.
The
respondent
committed
an
offence
under
subsection
55(1)
when
on
the
day
following
the
last
day
of
the
applicable
period
it
failed
to
pay
the
tax
payable
under
the
Act.
By
pleading
guilty
to
the
charges
contained
in
the
information,
the
respondent
admitted
that
the
amounts
set
out
in
the
information
should
have
been
paid
but
were
not
paid
within
the
times
prescribed
by
subsection
50(3).
By
subsection
69(1)
the
court
must
impose
the
minimum
penalty
prescribed
by
the
Act.
Under
paragraph
55(l)(a)
the
minimum
penalty
is
$25
plus
an
amount
equal
to
the
tax
that
should
have
been
paid.
The
lower
court
judges
erred
by
taking
into
consideration
the
amounts
paid
on
account
of
tax
subsequent
to
the
commission
of
the
offences.
Subsection
54(2)
confers
a
discretion
on
the
Minister
to
direct
that
the
amount
of
the
penalty
based
on
the
amount
of
the
taxes
that
should
have
been
paid
shall
be
applied
on
account
of
the
tax,
but
that
is
a
matter
for
ministerial
discretion,
not
for
the
court.
Leave
to
appeal
is
granted,
the
appeal
allowed,
and
on
count
one
the
penalty
will
be
increased
to
$25
plus
$1,602.33
and
on
count
two
to
$25
plus
$1,568.56.
Email this Content