BECK,
J.A.:—This
is
a
stated
case—stated
by
Sanders,
Police
Magistrate.
The
case
before
the
Magistrate
was
on
an
information
laid
for
a
breach
of
sec.
8
of
the
Income
War
Tax
Act,
1917
(Can.),
c.
28,
as
amended
1920
(Can.),
c.
49,
secs.
11
and
12.
That
is
a
provision
under
which
the
Minister
of
Finance
may
require
a
return
of
income
and
further
information.
The
penalty
for
a
breach
is
provided
in
sec.
9
as
amended
by
1919
(Can.),
ce.
55,
sec.
7;
1920
Can.),
c.
49,
sec.
13;
and
1921
(Can.),
c.
383,
sec.
4,
which
reads
as
follows:
"‘9.
(1)
For
every
default
in
complying
with
the
provisions
of
the
next
preceding
section,
the
persons
in
default
shall
each
be
liable
on
summary
conviction
to
a
penalty
of
twenty-five
dollars
for
each
day
during
which
default
continues.”
The
defendant
pleaded
guilty.
The
Magistrate
imposed
a
fine
of
$3
for
each
day’s
default.
The
question
of
law
stated
for
the
opinion
of
the
Court
is
substantially,
whether
the
Magistrate
had
jurisdiction
to
impose
a
fine
less
than
$25
for
each
day’s
default.
I
am
of
the
opinion
that
the
question
should
be
answered
in
the
affirmative.
Sec.
571
of
the
Criminal
Code
enacts
that
every
one
who
attempts
to
commit
any
indictable
offence
for
commmitting
which
the
longest
term
to
which
the
offender
can
be
sentenced
is
less
than
14
years
and
no
express
provision
is
made
by
law
for
the
punishment
of
such
attempt,
is
guilty
of
an
indictable
offence
and
liable
to
imprisonment
for
a
term
equal
to
one-half
of
the
longest
term
to
which
a
person
committting
the
indictable
offence
attempted
to
be
committed
may
be
sentenced.
It
can
hardly
be
contended
otherwise
than
that
where
the
Code
says
that
a
person
convicted
of
an
offence
is
liable
to
.
.
.
years
imprisonment’’
the
meaning
is
that
the
number
of
years
stated
is
'the
longest
term
to
which
the
offender
can
be
sentenced”
or
in
other
words
that
the
provision
fixes
the
maximum
term
of
imprisonment
which
the
Court
can
impose
but
that
the
Court
has
a
discretion
to
impose
any
less
term
of
imprisonment.
I
think
that
is
clearly
so,
notwithstanding
that
in
some
sections
of
the
Code
(e.g.,
sec.
110)
we
find
the
expression:
‘‘liable
to
imprisonment
for
any
term
not
exceeding
5
years.’’
So,
too,
I
think
that
in
several
sections
of
the
Code
which
say
that
a
convict
shall
be
"liable
to
.
.
.
years
imprisonment
and
to
be
whipped”
the
Court
is
not
bound
to
impose
the
punishment
of
whipping.
Sec.
1060
says:
‘‘Whenever
whipping
may
be
awarded
for
any
offence,
the
court
may
sentence
etc.”
Imprisonment
for
a
maximum
term
of
years
and
whipping
are
forms
of
punishment
obviously
subject
to
division
into
periods
or
numbers
or
degrees.
The
punishment
of
death
or
of
imprisonment
for
life
is
obviously
not
subject
to
any
such
division.
Then
if
the
expression
"liable
to
.
.
.
years
imprisonment’’
means
the
fixing
of
the
number
of
years
as
the
maximum
term
of
imprisonment,
it
seems
that
the
like
expression
‘‘liable
to
a
penalty
of
.
.
.
dollars’’,
means
the
fixing
of
a
maximum
fine.
Although,
as
in
the
case
of
imprisonment,
we
find
the
form
of
words:
"not
exceeding’’
used
(e.g.,
sec.
285B.
as
amended
1910
(Can.),
c.
11,
sec.
1),
the
difference
in
the
form
of
expression
is
I
am
satisfied
to
be
accounted
for
by
the
different
sources
from
which
many
of
the
sections
have
been
taken
and
not
in
consequence
of
an
intention
on
the
part
of
the
compiler
of
the
Code
to
place
the
different
forms
of
expression
in
contrast.
See.
1054
reads:
“Every
one
who
is
liable
to
imprisonment
for
life,
or
for
any
term
of
years,
or
other
term,
may
be
sentenced
to
imprisonment
for
any
shorter
term.
Provided
that
no
one
shall
be
sentenced
to
any
shorter
term
of
imprisonment
than
the
minimum
term,
if
any,
prescribed
for
the
offence
of
which
he
is
convicted.”
Sec.
1028
reads:
"Whenever
it
is
provided
that
the
offender
shall
be
liable
to
different
dégrees
or
kinds
of
punishment,
the
punishment
to
be
inflicted
shall,
subject
to
the
limitations
contained
in
the
enactment,
be
in
the
discretion
of
the
court
or
tribunal
before
which
the
conviction
takes
place.”
And
sec.
1029
reads
:
"Whenever
a
fine
may
be
awarded
or
a
penalty
imposed
for
any
offence,
the
amount
of
such
fine
or
penalty
shall,
within
such
limits,
if
any,
as
are
prescribed
in
that
behalf,
be
in
the
discretion
of
the
court
or
person
passing
sentence
or
convicting,
as
the
case
may
be.”
The
Criminal
Code,
in
as
much
as
it
is
a
code,
is
very
largely
declaratory
of
both
the
substantive
and
adjective
law
as
previously
existed
and
had
been
the
growth
of
Common
Law
principles,
statutory
enactments,
judicial
interpretation
and
development
and
traditional
practice.
In
my
opinion
the
three
sections
of
the
Code
which
I
have
just
quoted
are
merely
declaratory
;
except
perhaps
where
the
statutory
punishment
was
imprisonment
for
life,
such
a
term
being
as
I
have
pointed
out
by
its
very
nature
indivisible;
but
whether
or
not,
these
sections
to
my
mind
are
intended
to
make
it
clear
that,
unless
the
statutory
enactment
providing
the
punishment
expressly
prescribes
a
minimum
term
(see.
1054)
or
contains
a
minimum
limitation
(see.
1028)
or
prescribes
minimum
limits
(see.
1029),
the
punishment
is
in
the
discretion
of
the
tribunal
imposing
the
sentence
subject
to
the
limitation
of
the
term
or
amount
stated
which
is
thereby
constituted
the
maximum.
In
order
words,
where
the
convict
is
declared
to
be
liable
to
a
stated
term
of
imprisonment
or
to
a
stated
amount
of
fine,
that
is
to
be
understood
as
the
maximum
or
longest
term
or
largest
fine
and
the
minimum
is
merely
nominal.
As
is
said
in
9
Hals.,
p.
425,
para.
879,
tit.
Criminal
Law”:
"‘The
policy
of
the
law
is
as
regards
most
crimes
to
fix
a
maximum
penalty,
which
is
only
intended
for
the
worst
cases,
and
to
leave
to
the
discretion
of
the
judge
to
determine
to
what
extent
in
a
particular
case
the
punishment
awarded
should
approach
to
or
recede
from
the
maximum
limit.
‘
I
have
written
so
much
because
my
opinion
differs
from
the
decision
of
Latchford,
C.J.,
in
Rex
v.
Thompson
Mfg.
Co.
(1920)
47
O.L.R.
103,
and
the
majority
of
the
Supreme
Court
of
Nova
Scotia
in
The
King
v.
Smith
[1923]
1
D.L.R.
820,
38
Can.
C.C.
321,
96
N.S.R.
72.
That
case
was
decided
by
a
Court
of
four,
Harris,
C.J.,
dissenting.
I
prefer
the
reasoning
of
the
Chief
Justice.
As
I
have
already
stated,
I
think
the
Magistrate
acted
within
his
jurisdiction
in
imposing
a
less
fine
than
$25
a
day
and
I
would
so
declare.
HYNDMAN,
J.A.:—This
is
an
appeal
by
way
of
stated
case
on
the
application
of
the
Crown
by
Sanders,
Police
Magistrate
for
the
City
of
Calgary.
Defendant
was
charged
with
a
breach
of
the
Income
War
Tax
Act,
1917,
sec.
8,
as
amended.
The
accused
pleaded
guilty
and
the
said
Magistrate
imposed
a
fine
of
$3
for
each
day’s
default
(two
days
being
claimed),
namely,
$6.
It
is
contended
by
the
Crown
that
the
Magistrate
erred
in
imposing
only
$3
per
day
but
should
have
exacted
a
penalty
of
$25
for
each
day’s
default.
Sec.
9(1),
the
section
in
question,
is
quoted
ante
p.
307.
(1)
Whether
I
was
required
by
sec.
9(1)
of
the
Income
War
Tax
Act
.
.
.
to
impose
a
penalty
of
$25
for
each
day
on
which
default
is
alleged
continued.
(X)
Whether
I
was
entitled
under
said
Act
to
exercise
discretion
in
enabling
me
to
impose
a
penalty
of
$6
for
the
two
days’
default
for
which
the
said
Charles
Bell
was
convicted.
The
Magistrate
held
that
he
had
the
right
to
exercise
discretion
on
the
ground
"
"
that
the
penalty
imposed
in
the
said
section
is
in
the
same
wording
as
penalties
imposed
by
some
sections
of
the
Criminal
Code^
1
,
The
question
involved
is
the
interpretation
of
sec.
1029
of
the
Criminal
Code
which
reads
[quoted
ante
p.
309].
That
this
section
is
applicable
to
summary
convictions
is
hardly
open
to
question.
The
summary
conviction
part
is
not
a
code
itself.
Part
XX
in
which
sec.
1029
is
included
is
not
expressed
to
be
applicable
to
any
particular
or
special
part
of
the
Code
and
in
the
absence
of
express
terms
limiting
it
should
be
held
to
refer
to
XV.
At
any
rate
the
authorities
in
favour
of
this
conclusion
are
of
long
standing.
Reg.
v.
Rob
idoux
(1898)
2
Can.
C.C.
19,
having
been
decided
in
1898
and
Ex
parte
Kent
(1903)
7
Can.
C.C.
447,
in
1908.
If
it
had
not
been
intended
that
Part
XX
was
applicable
to
Part
XV
I
have
no
doubt
but
that
Parliament
would
have
amended
the
Code
in
that
respect.
The
King
v.
Smith
[1923]
1
D.L.R.
820,
38
Can.
C.C.
327,
relied
on
by
the
Crown
in
respect
of
the
more
important
phase
of
the
case,
is
also
an
authority
in
agreement
with
Reg.
v.
Robidoux,
supra.
But
for
the
words
"within
such
limits
if
any
as
are
prescribed
in
that
behalf’
‘
there
is
no
doubt
of
course
that
a
fine
less
in
amount
than
$25
would
be
within
the
Magistrate’s
right
to
impose.
In
The
King
v.
Smith,
supra,
a
majority
of
the
Court
of
Appeal
in
Nova
Scotia
held
that
a
fixed
penalty
of
$25
was
intended
and
the
imposition
of
a
lesser
amount
was
beyond
the
jurisdiction
of
the
Justice,
Harris,
C.J.,
dissenting.
With
great
respect
to
the
majority
of
that
Court
I
am
in
accord
with
the
reasoning
and
conclusion
of
the
Chief
Justice.
The
case
of
Rex
v.
Thompson
Mfg.
Co.,
47
O.L.R.
103,
was
cited
as
an
authority.
But
as
pointed
out
by
the
Chief
Justice
no
reference
was
made
by
Latchford,
J.,
to
sec.
1029
and
he
suggests
that
the
section
was
never
called
to
his
attention.
It
is
not
improbable
that
this
was
the
case
and
if
so
materially
reduces
the
weight
of
authority
of
his
decision.
It
would
appear
to
me
that
it
is
for
just
such
a
case
as
this
sec.
1029
was
enacted.
It
reads
that
whenever
<4
a”
fine
may
be
awarded
or
"
1
a”
penalty
imposed.
Here
4
"a”
fine
of
$25
is
authorized.
There
are
no
limits
set
such
as
"‘a
fine
of
$25
and
not
less
than
$5’’.
There
being
no
limits
prescribed
therefore
it
seems
to
me
that
whilst
the
Court
may
not
award
a
greater
fine
than
$25
it
may
impose
a
smaller
one;
there
is
a
limit
as
to
the
maximum
but
not
as
to
the
minimum.
Sec.
1028
applies
in
the
same
manner
with
regard
to
the
length
of
term
of
imprisonment.
The
Code
deals
with
many
offences
where
the
wording
with
regard
to
the
term
of
imprisonment
and
amount
of
fine
is
precisely
the
same
as
in
the
section
of
the
Income
Tax
Act
under
consideration.
Lesser
terms
and
fines
for
these
other
offences
have
been
imposed
as
a
matter
of
course
ever
since
the
Code
was
enacted
without
question
such
as
under
secs.
84,
89,
174,
200,
228
(as
amended
1909
(Can.),
c.
9,
sec.
2),
242(a)
(as
enacted
1913
(Can.),
c.
13,
sec.
14),
299,
301,
512
and
many
others.
I
fail
to
distinguish
between
the
provision
before
us
and
the
others
to
which
I
have
referred.
I
would
answer
the
first
question
in
the
negative
and
the
second
in
the
affirmative.
Judgment
accordingly.
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