Sejer Jensen and Donald R. Chalmers v. Her Majesty the Queen, [1966] CTC 684, 66 DTC 5408

TAVENDER, J.D.C.:—This is a criminal appeal from a conviction by a magistrate on five counts under the Income Tax Act. Jensen appeals against conviction; Chalmers appeals against conviction and sentence; and the Crown appeals against sentence.

The appellants-accused are charged that:

“1. On or about the 6th day of April, 1959, Sejer Jensen of Wayne, in the Province of Alberta, Farmer, and Donald R. Chalmers, of the City of Calgary, in the Province of Alberta, Accountant, did at Calgary, Alberta, make, participate in, assent to or acquiesce in the making of false statements in the 1958 T1 General Return of the income of the said Sejer Jensen for the taxation year 1958 filed pursuant to the Income Tax Act, being Chapter 148 of the Revised Statutes of Canada, 1952, and amendments thereto, contrary to Section 132(1) (a) of the said Income Tax Act;’’

Counts 2, 3, 4 and 5 read the same except that they relate to subsequent years.

Upon opening the trial de novo both counsel for the appellants- accused objected to the appeal proceeding on the ground that each of the counts in the Information was void for duplicity. It was agreed that this objection had been taken before the magistrate.

The charges were laid very much in the language of Section 132(1) (a) of the Income Tax Act, R.S.C. 1952, c. 148, which reads :

“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 . . .”?

The Criminal Code of Canada in dealing with Summary Con- victions provides :

‘4696. (1) In proceedings to which this Part applies, the information

(a) shall be in writing and under oath, and

(b) may charge more than one offence or relate to more than one matter of complaint, but where more than one offence is charged or the information relates to more than one matter of complaint, each offence or matter of complaint, as the case may be, shall be set out in a separate count.

703. No information, summons, conviction, order or process shall be deemed to charge two offences or to be uncertain by reason only that it states that the alleged offence was committed

(a) in different modes, or

(b) in respect of one or other of several articles, either conjunctively or disjunctively.”’

By Sections 704 and 727(4) of the Criminal Code it is provided that an objection to an information for a defect apparent on its face shall be taken before plea and thereafter only by leave of the summary conviction court. Such an objection was taken before the magistrate in this case and it is therefore open to me to consider the validity of the information (Regina v. Dillon (1964), 47 W.W.R. 510).

Counsel referred me to a considerable number of cases and I have examined a few additional ones. These cases are : Rex v. Madill No. 1, [1943] 1 W.W.R. 365; Regina v. Schultz (1962), 39 W.W.R. 23: Archer v. The Queen, [1955] S.C.R. 33; Regina v. Gulvas (1962), 39 W.W.R. 452; Regina v. Chaikoff (1953), 16 CLR. 385: Regina v. Kitchener News Co. (1954), 18 C.R. 239; Rex v. Switucha (1950), 10 C.R. 114; Regina v. Horwitz (1963- 64), 45 W.W.R. 507; Rex. v. Safeway Stores Ltd., [1938] 2 W.W.R. 479; The Queen v. Machacek, [1961] S.C.R. 163; [1961] 0.T.0. 1; Rex v. Clarke & Tomkins (1947), 90 C.C.C. 280; Eddy Match Co. Ltd. v. The Queen (1953), 109 C.C.C. 1; Regina v. Zentner (1959), 29 W.W.R. 679; De Bussche v. Alt (1878), 8 Ch. D. 286: The King v. Michaud (1909), 17 C.C.C. 86; Rex v. McManus (1919), 31 C.C.C. 180; Brown v. The Queen, [1957] Rap. Jud. de Que. (Q.B.) 169; Regina v. Dominion Glass Co.

(1964), 43 C.R. 288; Regina v. Dillon (1964), 47 W.W.R. 510; Regina v. Lehedor, [1962] O.W.N. 233; and Regina v. Worden,

[1962] O.W.N, 61.

None of these cases were exactly in the wording of the charges herein except the case of Regina v. Zentner, supra, in which a charge was laid under the Income Tax Act of that period in the following words:

“That Frank Zentner of Simpson, in the Province of Saskatchewan, did, on or about the 31st day of May, 1949, make or assent or acquiesce in the making of false or deceptive statements in a return required to be filed pursuant to the provisions of the Income War Tax Act, Chapter 97, R.S.C. 1927, and amendments thereto to wit, his 1948 income tax return on Form T1 thereby evading the payment of taxes in the sum of $1,311.52 all contrary to the provisions of Section 80(1) of the Income War Tax Act and amendments thereto.’’

In that case the magistrate after entering on the trial refused to proceed with it. An application for mandamus was refused by McKercher, J. In dealing with the matter he held that one information may not charge an accused both with the making of a false statement contrary to Section 80(1) of the Income War Tax Act and also with evading thereby a stated amount of income tax. (Quoted from headnote, 29 W.W.R. 16.) On appeal Martin, C.J.S., giving judgment for the majority of the Saskatchewan Court of Appeal, Procter, J.A. dissenting, said at p. 684:

“I cannot agree that the information contains two charges. It is plain that the information charges the accused with making false or deceptive statements contrary to the provisions of section 80(1). The learned trial judge in chambers apparently found that the words thereby evading the payment of taxes in the sum of $1,311.52’ had the effect of charging the accused with a second offence.’’

In the result, Martin, C.J.S. held the charge was not void for duplicity. It does not appear that the question was considered in the light of the words ‘‘making or assenting or acquiescing in making”. I do not think I should follow this case.

It is not my intention to consider the remainder of the said cases individually. I think in this Province the case of Rex v. Madill (No. 1), supra, approved by our Court of Appeal recently in Regina v. Schultz, supra, clearly sets out the principles upon which the question of duplicity is to be decided. In the Madill case, F. Ford, J.A., at p. 369 says:

‘The test may, I think, be found in the answer to the question whether evidence can be given the distinct acts, committed by the person charged, constituting two or more offences.??

The principle is clear. The application of the principle is more difficult.

In the present case two accused are charged jointly that they did ‘‘make, participate in, assent to or acquiesce in the making of false statements’’. Jensen is a farmer and the taxpayer, Chalmers is an accountant. Can evidence be given of distinct acts committed by these persons constituting two or more offences?

In my opinion these two accused are charged jointly with two and possibly three distinct offences.

Although the words in the information are words in common use I have looked at The Shorter Oxford English Dictionary and find that some of the definitions are as follows:

‘“make—compose, write as the author, draw up. participate—partake.

assent—to give the concurrence of one’s will, to agree to, to

submit, yield.

acquiesce—to agree tacitly to, concur in, to, with.”

If the accountant composed or drew up the returns in question from information obtained by him, then it can be said that he made the false statements complained of. In this event the taxpayer did not make the statements, at least not in this sense. If the taxpayer made the false statements in he sense of signing the forms, then the accountant did not make the statements in this sense.

If the taxpayer provided false information unknown to the accountant, then I do not think it could possibly be said that the latter participated in, assented to or acquiesced in such statements. If the accountant accidentally made a mistake in the returns which favoured the taxpayer and of which mistake the latter had knowledge, it could be said that the taxpayer assented to or acquiesced in the false statement but I do not think this could be said of the accountant.

In my view evidence could be given in this case of distinct acts committed by the persons charged constituting two or more offences and thus the counts would be multifarious and bad.

‘Counsel for the Crown then argued that if the information charged more than one offence this did not make it void by reason of Section 136(2) of the Income Tax Act which provides:

“136. (2) An information or complaint in respect of an offence under this Act may be for one or more offences and no information, complaint, warrant, conviction or other proceeding in a prosecution under this Act is objectionable or insufficient by reason of the fact that it relates to two or more offences. ’ ’

In my view it would require much stronger words than these for the Courts to hold that Parliament intended to abrogate the duplicity rules. I do not think this section alters in any way the criminal practice. An information may be for one or more offences but where more than one offence is charged each offence shall be set out in a separate count.

The counts in the information each being void for duplicity and objection having been taken in the summary conviction court, I allow the appeals of the appellants-accused and quash the convictions. The appeal of the Crown is dismissed. The appellants-accused ought to have their costs of the appeals. Security for costs will be returned to the respective appellants- accused. The fines and costs below ought to be returned to the respective appellants-accused.