Joseph Machacek v. Her Majesty the Queen, [1960] CTC 251, [1960] DTC 1166

MacDonald, J.:—These are four separate appeals, by leave, on points of law, from convictions of the appellant by Chief Judge Feir at Lethbridge on January 22, 1960.

The appellant was convicted by Police Magistrate Gore- Hickman at Lethbridge on four charges of making a false return for income tax purposes in each of the years 1954, 1955, 1956 and 1957, contrary to Section 132(1) (a) of the Income Tax Act, as amended. The proceedings were by summary conviction under Part XXIV of the Criminal Code.

From these convictions the appellant appealed to the District Court under Section 720 of the Criminal Code on each of the four charges, and in each case Chief Judge Feir found the appellant guilty and in each case imposed a fine of $25 and a sentence of two months’ imprisonment, the sentences to run concurrently.

For the purpose of argument before this Division, the appeals, by agreement of counsel, were consolidated by an order of a judge of this Division.

The first ground of appeal is as follows :

“That the learned trial judge erred in holding that Section 136(4) of the Income Tax Act has not been repealed by Section 693(2) of the Criminal Code and by reason thereof the four Informations against the Appellant were not barred by the said Section 693(2) of the Criminal Code.

And in the alternative, that the learned trial judge erred in holding that no Minister’s Certificates mentioned in the said Section 136(4) of the Income Tax Act were required to bring the Informations relating to 1954, 1955 and 1956 tax returns of the Appellant within the time limit provided in the said Section 136(4).”

Section 132(1) (a) of the Income Tax Act reads, in part, as follows:

“132. (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, certificate, statement or answer filed or made as required by or under this Act or a regulation,

is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to

(1) a fine of not less than $25 and not exceeding $10,000 plus, in an appropriate case, an amount not exceeding double the amount of the tax that should have been shown to be payable or that was sought to be evaded, or

(ii) both the fine described in paragraph (i) and imprisonment for a term not exceeding 2 years.

(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 the penalty otherwise provided, liable to imprisonment for a term not exceeding 5 years and not less than 2 months.’’

Section 136, subsection (4) of the same Act reads :

“136. (4) An information or complaint under the provisions of the Criminal Code relating to summary convictions, in respect of an offence under this Act, may be laid or made on or before a day 5 years from the time when the matter '. of the information or complaint arose or within one year from the day on which evidence, sufficient in the opinion of the Minister to justify a prosecution for the offence, came to his knowledge, and the Minister’s certificate as to the day on which such evidence came to his knowledge is conclusive evidence thereof.’’

The Criminal Code (1953-54, c. 51) came into force on April 1, 1955. Section 693 provides:

“693. (1) Except where otherwise provided by law, this Part applies to proceedings as defined in this Part.

(2) No proceedings shall be instituted more than six months after the time when the subject matter of the proceedings arose.”

The word “proceedings” is defined in Section 692(d) as follows :

“(d) ‘proceedings’ means

(i) proceedings in respect of offences that are declared by an Act of the Parliament of Canada or an enactment made thereunder to be punishable on summary conviction, and

(ii) proceedings where a justice is authorized by an Act of the Parliament of Canada or an enactment made thereunder to make an order;”.

The appellant contends that Section 136(4) of the Income Tax Act, supra, was repealed by implication by Section 693(2) of the Criminal Code, supra, and that, consequently, the four informations on which the convictions were based were statute barred. Each information was sworn more than six months after the alleged offence covered by each information.

The old Criminal Code in force previous to the present Criminal Code had a section dealing with limitation and provided:

“1142. In the case of any offence punishable on summary conviction, if no time is specially limited for making any complaint, or laying any information, in the Act or law relating to the particular case, the complaint shall be made, or the information laid, within six months from the time when the matter of the complaint or information arose, except in the Northwest Territories and the Yukon Territory, in all which Territories the time within which such complaint may be made or such information laid shall be twelve months from the time when the matter of the complaint or information arose.”

In Jorganson v. N, Vancouver Magistrates, Pool, Stipendiary Magistrate, and North Vancouver (City), 18 W.W.R. (N.S.) 265, at page 267, Coady, J.A., in delivering the judgment of the Court, states as follows :

“It is clear that under Section 1142, if the information was laid for an offence provided in the old Code, the time limit was six months. If the information was laid for an offence under some other federal statute the special time limit therein provided would govern the time for the taking of proceedings. ’’

In the factum of counsel for the Crown, the following appears:

“It is conceded that there is a noticeable difference between the wording of Section 693 of the Criminal Code and that of Section 1142 of the former Code. If Section 693 of the Code had read

‘ Except where otherwise provided by law

(1) This Part applies to proceedings as defined by this part

(2) No proceedings shall be instituted more than six months after the time when the subject matter of the proceedings arose’

it would, it is submitted, have been immediately apparent that there is no substance in the argument of the Appellant. Equally, it is conceded that had subsection (2) of the section stood alone as a separate section his present argument would have been greatly strengthened. But as the words of the section actually read, Counsel for the Appellant is forced to argue that the words ‘Except where otherwise provided by law . . .’ apply only to the first subsection and not to the second. ’ ’

It may well be that Parliament intended by Section 693 to exempt from subsection (2) federal statutes that expressly deal with the time in which proceedings can be instituted, but to construe that intention from the words there used, it seems to me it would be necessary to interpolate before subsection (2) the words “Except where otherwise provided by law’’. To add such words would, in my opinion, be legislation, not construction.

In The King v. Chapman, [1931] 2 K.B. 606, the headnote reads as follows :

“By s. 2 of the Criminal Law Amendment Act, 1922, a certain defence is open to ‘a man of twenty-three years of age’. The accused was twenty-three years and six months of age at the time the offence charged was committed. He con: tended that he was ‘a man of twenty-three years of age’;

Held, that, the language of the section being ambiguous, the accused was entitled to the benefit of the doubt, and was entitled to rely on the said defence.”

In delivering the judgment of the Court, Lord Hewart, C.J., states, at page 609 :

“The appellant became twenty- three years of age on September 27, 1929, and the offence charged was committed in March, 1930. The words of the proviso to s. 2 of the Act of 1922 are: ‘Provided that in the case of a man of twenty-three years of age or under the presence of reasonable cause to believe that the girl was over the age of sixteen years shall be a valid defence on the first occasion on which he is charged with an offence under this section.’ Much argument has taken place and may yet take place on the meaning of the words, ‘of twenty-three years of age’, but we have come to the conclusion that in this case the observations, based upon a series of cases, which are to be found in Maxwell on the Interpretation of Statutes, 7th ed., p. 244, apply. They are as follows: ‘Where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the Legislature which has failed to explain itself.’ On that ground the Court has decided to allow the appeal and quash the conviction.’

In Remmington v. Larchin, [1921] 3 K.B. 404, the Court was called upon to construe a clause of The Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. Bankes, L.J., states at page 408:

“We are dealing with a penal section, and therefore one must apply the well-known general rule of construction, that if there are two reasonably possible meanings the Court should adopt the more lenient one.”

In the same case, Scrutton, L.J., states as follows :

“I think the construction of s. 8 is a matter of considerable doubt. I am very much influenced in the conclusion at which I have arrived by the well-recognized rule as to construing penal sections. In Truck v. Priester ((1887), 19 Q.B.D. 629, 638) Lord Esher, M.R., said: ‘But then comes the question whether the plaintiffs are also entitled to recover penalties under s. 6. We must be very careful in construing that sec- tion, because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.’ ”’

Atkin, L.J., states at page 411.

“The conclusive consideration however is that this is a penal section. I think there is quite sufficient doubt about the matter to compel one to take the more lenient view. There are two reasonably possible constructions which can be put upon the section. Under these circumstances I think I am forced to come to the conclusion that the view taken by Shearman, J., is the right one, and I agree that this appeal should be dismissed.”

I am not overlooking the argument of Crown counsel that the Criminal Code of Canada is general legislation and that, as such, its provisions, supra, do not abrogate by mere implication the express provisions of the Income Tax Act. The principle of law is contained in the maxim generalia specialibus non derogant. That principle was applied in The City of Vancouver v. Bailey, 25 S.C.R. 62, where at page 67, Sedgewick, J., states as follows :

“A general later statute (and a fortiori a statute passed at the same time), does not abrogate an earlier special one by mere implication; the law does not allow an interpretation that would have the effect of revoking or altering, by the construction of general words, any particular statute where the words may have their proper operation without it.”

Can it be said that the general words of Section 693 of the Criminal Code can have their proper application without altering the limitation clause, supra, of the Income Tax Act ! What construction should be placed upon Section 693(2), supra?

In relation to the points in issue in the present case, it does seem to me that there are two reasonable constructions to be placed upon Section 693(2) of the Criminal Code, the first being that its meaning is governed by the expression appearing in Section 693(1) ‘‘Except where otherwise provided by law”, and the second, that the limitation period of six months is of general application and would apply to Section 132(1) (a) of the Income Tax Act, notwithstanding the provisions of Section 136(4) of the latter Act.

Though I lean to the first construction as being the more reasonable, nevertheless I cannot say that the second construction is not reasonably possible. In other words, I have a reasonable doubt of the meaning of Section 693, which the application of the canons of interpretation has failed to solve. I am in doubt whether the words of Section 693(2) can have their proper operation without altering the effect of the limitation clause of the Income Tax Act.

Such being the case, it seems to me that considering that the statute is a penal one, I should give the benefit of the doubt to the accused and adopt the construction which is the more lenient one. When the liberty of the subject is involved, it seems to me that the legislation pertaining thereto should be so clear as to leave no room for reasonable doubt.

I would accordingly allow the appeals and quash the convictions.

PORTER, J.:—I coneur.

JOHNSON, J.:—These are appeals by leave from the dismissal of appeals by His Honour Chief Judge Feir of a series of convictions under the Income Tax Act for making false statements in returns made for the years 1953 to 1956 inclusive. There were five grounds of appeal, only one of which we considered merited further consideration. This is:

That the learned trial judge erred in holding that Section 136(4) of the Income Tax Act has not been repealed by Section 693(2) of the Criminal Code and by reason thereof the four Informations against the Appellant were not barred by the said Section 693(2) of the Criminal Code.’’

The sections mentioned are as follows: the Income Tax Act, Section 136, subsection (4) :

*'An information or complaint under the provisions of the Criminal Code relating to summary convictions, in respect of an offence under this Act, may be laid or made on or before a day 5 years from the time when the matter of the information or complaint arose or within one year from the day on which evidence, sufficient in the opinion of the Minister to justify a prosecution for the offence, came to his knowledge, and the Minister’s certificate as to the day on which such evidence came to his knowledge is conclusive evidence thereof.”

The Criminal Code, Section 698, subsections (1) and (2):

"(1) Except where otherwise provided by law, this Part applies to proceedings as defined in this Part.

(2) No proceedings shall be instituted more than six months after the time when the subject matter of the proceedings arose.”

Chief Judge Feir, in a carefully reasoned judgment, disposed of this objection by holding that ‘‘ Except where otherwise provided by law’’ in subsection (1) applied to both subsections of Section 693. It may be that this is what was intended, but, if so, the draftsman of the Act took a strange way of expressing it. If “Except where otherwise provided by law” were intended to apply to both subsections, a form of section similar to that used in Section 720 of the Criminal Code would have been more appropriate. I am more inclined to the view expressed by Coady, J.A., in Jorgensen v. North Vancouver Magistrate et al., 28 W.W.R. (N.S.) at page 267, that Section 693(1) does not assist when dealing with the limitation provisions contained in subsection (2).

This, however, does not conclude the matter if the two subsections, 2.e., Section 136(4) of the Income Tax Act and Section 693(2) of the Criminal Code, can each stand independent of the other. It must be implied that the subsection in the Income Tax Act has been repealed by the subsection in the Criminal Code for the appellant to succeed.

There are many statements of the law relating to repeal by implication, many of them are collected in 39 S.C.R. at pages 518 to 522 inclusive. That a later statute does not always repeal an earlier one has been best and most concisely stated by A. L. Smith, J., in Kutner v. Phillips, [1891] 2 Q.B. at page 271:

“Now a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one, that the two cannot stand together, in which case the maxim, Leges posterior es contrarias abrogant’ (2 Inst. 685) applies. Unless two Acts are so plainly repugnant to each other, that effect cannot be given to both at the same time, a repeal will not be implied, and special Acts are not repealed by general Acts unless there is some express reference to the previous legislation, or unless there is a necessary inconsistency in the two Acts standing together: Thorpe v. Adams (L.R. 6 C.P. 125).”

Like so many legal precepts which are clear and precise, application to a given set of facts is not easy. Certainly the language of Section 693(2) is so uncompromising that if the language used were the determining factor, it would be difficult to say that this subsection permits any exception. There are, however, other considerations which are equally important. In the first place, Section 136(4) of the Income Tax Act deals with and is limited to a special type of information, while the Criminal Code subsection is general in application. White, J., in the Supreme Court of the United States in Petra v. P. E. Creelman Lumber Co., 199 U.S. 497, says:

“It is elementary that repeals by implication are not favored, and that a repeal will not be implied unless there be an irreconcilable conflict between the two statutes. And especially does this rule apply where the prior law is a special act relating to a particular case or subject, and the subsequent law is general in its operation. ’ ’

In Craies on Statute Law, 5th ed., page 339, it is stated:

‘‘To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act.”

This is but an application of the rule for construing statutes which is stated by Turner, L.J., in Hawkins v. Gathercole, 6 De G.M. & G. at page 21 :

“In determining the question before us, we have therefore to consider not merely the words of this Act of Parliament, but the intent of the Legislature, to be collected from the cause and necessity of the Act being made, from a comparison of its several parts, and from foreign (meaning extraneous) circumstances, so far as they can justly be considered to throw light upon the subject.’’

While it is true that the Criminal Code is a later statute, it is not significantly so. The Income Tax Act as part of the Revised Statutes of Canada of 1952 was proclaimed in force on September 15, 1953; the new Criminal Code was given royal assent on June 26, 1954, and I think it is common knowledge that this legislation was being considered by both Houses of Parliament for some time before it was passed. It is interesting that Part XXV of the new Criminal Code, after repealing the earlier one, makes changes in several Acts which are criminal in nature. It would be reasonable to assume that if Parliament intended to repeal this subsection of the Income Tax Act it would have done so here.

Prosecutions for income tax offences, particularly of the kind we are considering, present particular problems. Because of the large number of returns which must be made before a certain date and because violations can only be detected after investiga- tions which involve an examination of the suspect’s books and records and other records (in the present case the records of banks and the Wheat Board provided some of the evidence) it becomes clear that a longer than ordinary limitation period must be required for such cases. To apply the limitation of the Criminal Code subsection to such cases would mean that few, if any, prosecutions could be laid under the summary trial provisions of the Code, and an accused could only be prosecuted, except in very few instances, by indictment with its heavier and mandatory penalties.

These are matters which we are entitled to consider in deciding whether or not Section 136(4) has been impliedly repealed.

Reference can be made to City of Vancouver v. Bailey, 25 S.C.R. 62 ; Sherman v. Kay, 29 N.Z.L.R. 540; Lukey v. Edmunds et al., 21 Com. L.R. 336, which are cases dealing with conflict between general and special legislation.

Bearing in mind that the Courts do not favour repeal by implication and because Section 136(4) was passed to meet special problems created by income tax prosecutions, it cannot be said that Section 693(2) of the Criminal Code is an exception to the general rule that a later statute of general application does not repeal an earlier special one.

I would dismiss these appeals.

Appeals allowed.