MCGILLIVRAY
?
J.
A.
:—This
:
is
an
application
for
leave
to
appeal
and
for
appeal’from
the
judgment
of
Henderson,
J.,
whereby
he
allowed.an
appeal
by
way
of
a
stated
case
from
the
judgment
of
J.
M.
Seneshen,
t.J.
Leave
to
appeal
was
given
ny.’
this
Court.
j
;
The
respondent
John
Sakellis
was
charged
on
information
laid
on
April
25,
1968,
that
he,
on
January
16,
1968,
in
the
City
of
London,
failed
to
comply
with
Section
47
(1)
of
the
Income
Tax
Act,
RS.
C.
1952,
c.
148,
as
amended,
in
that
he
did
not
remit
to
the
Receiver
General
of
Canada
on
or
before
January
15,1968,
the
sum
of
$60.23
which
he
deducted
and
withheld
from
salaries,
wages,
or
other
remuneration
paid
to
his
employees
during
the
month
of
December
1967,
as
prescribed
by
the
Regulations
under
the
said
Act,
and
thereby
committed
an
offence
under
Section
131(2)
of
the
said
Act.
At
trial
evidence
established
that
the
accused
was
,
during
the
time
in
question,
an
employer
carrying’
on’
business
in
the
City
of
London,
that
he
had
deducted
the
stated
sum
for
income
tax
from
remuneration
paid
employees,
and
that
the
said
sum
had
not
been
remitted
to
the
Receiver
General
of
Canada
on
or
before
January
15,
1968.
No
dispute
has
been
raised
as
to
these
facts.
The
charge
x
was
laid
within
the
prescribed
limitation
period.
The
respondent
was
found
guilty
and
a
fine
of
$200
+
was
imposed
with
the
alternative
of
30
days’,
imprisonment.
Upon
application
to
the
Provincial
Judge
t()
state
a
case
by
way
of
appeal
he
formulated
the
following
questions
for
determination
of
the
superior
Court:
.
..
r
7
(a)
Did
I
err
in
ruling
that
the
date
of
the
commission
of
the
offence
was
correctly
stated
in
the
information,
namely
the
16th
day
of
January
1968?
(b)
Should
I
have
dismissed
the
charge
on
the
ground
that
the
offence
occurred
on
or
before
the
15th
day
of
January
1968?
(c)
Did
the
evidence
for
the
prosecution
constitute’
any
evidence
upon
which
the
said
Johr
Sakellis
could
be:
convicted
of
the
charge
set
out
in
the.
information?
Henderson,
J.
allowed
the
appeal
and
answered
questions
(a)
and
(b)
in
the
affirmative.
He
held
there
to
be
insufficient
evidence
before
him
to
permit
an
answer
to
question
(c)
but
in
view
of
the
answers
to
questions
(a)
and
(b)
none
was
required.
The
relevant
sections
and
Regulations
of
the
Act
are
as
follows
:
Section
47
(1)
(£)
of
the
‘Act:
47.
(1)
Every
person
paying
(f)
fees,
commissions
or
other
amounts
for
services,
at
any
time
in
a
taxation
year
shall
deduct
or
withhold
therefrom
such
amount
as
may
be
prescribed
and
shall,
at
such
time
as
may
be
prescribed,
remit
that
amount
to
the
Receiver
General
of
Canada
on
account
of
the
payee’s
tax
for
the
year
under
this
Part.
Income
Tax
Regulations,
P.C.
1954-
1917,
SOR
1955,
Vol.
2,
p.
1872,
Section
108(1)
:
108.
(1)
Amounts
deducted
or
withheld
under
the
provisions
of
subsection
(1)
of
section
47
of
the
Act
shall
be
paid
to
the
Receiver
General
of
Canada
on
or
before
the
fifteenth
day
of
the
month
next,
succeeding
the
month
in
which
the
employer
paid
the
remuneration.
Section
131(2)
of
the
Act:
131.
(2)
Every
person
who
has
failed
to
comply
with
or
contravened
subsection
(1)
of
section
47,
subsection
(5)
of
section
123,
section
125
or
section
126
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.
In
his
reasons,
when
allowing
the
appeal,
Henderson,
J.,
stated
:
The
Act
under
which
the
accused
was
charged
is
an
Act
where
dates
and
limitations
are
to
be
strictly
adhered
to
—
that
is
the
whole
tenor
of
the
statute.
To
find
the
accused
guilty
of
the
offence
charged,
it
would
be
necessary
to
interpret
the
word
“on”
to
mean
the
same
as
the
word
“by”.
.
.
.
Interpret
“on”
by
any
other
meaning
would
prejudice
the
accused
in
his
pleading.
With
all
deference
to
the
contrary
opinion
of
Henderson,
J.
I
reach
a
different
conclusion.
Income
Tax
Regulations,
Section
108(1),
requires
the
amount
to
be
paid
on
or
before
the
loth
day
of
the
month
following
the
month
in
which
deduction
from
salary
was
made.
The
offence
could
not
be
committed
within
that
15
days.
It
can
only
be
established
after
this
period
has
elapsed.
It
then
exists
and
must
continue
to
exist
until
payment
is
made.
In
R,
v.
Donen,
[1925]
1
D.L.R.
1141;
43
C.C.C.
271;
34
Man.
R.
597,
the
Court
of
Appeal
dealt
with
a
prosecution
under
the
Income
War
Tax
Act,
1917
(Can.),
c.
28,
when
the
accused
had
failed
to
answer
a
demand
from
the
Minister
on
March
9,
1922,
for
an
income
return
covering
the
1920
period.
An
information
was
laid
on
June
20,
1924
that
he
did
on
March
13
and
14,
1924
fail
to
make
the
return.
The
Magistrate
held
that,
as
the
complaint
was
not
lodged
within
six
months
after
the
expiration
of
the
time
in
the
demand
notice,
Section
1142
of
the
Criminal
Code
applied
and
no
prosecution
lay.
Fullerton,
J.A.
with
whom
Perdue,
C.J.M.
and
Dennistoun,
J.A.
concurred,
after
a
review
of
the
authorities,
held
the
offence
to
be
a
continuing
one,
and
as
a
consequence
so
long
as
the
offence
continued
and
within
six
months
thereafter
an
information
might
be
laid.
As
a
result
he
held
the
limitation
in
the
Criminal
Code
had
no
application
in
that
case.
Upon
similar
grounds
McRuer,
C.J.H.C.
in
À.
v.
Smith,
[1958]
O.W.N.
277;
120
C.C.C.
241;
28
C.R.
48,
held,
in
two
charges
of
failure
to
comply
with
a
demand
made
under
Section
44(2)
of
the
Income
Tax
Act
within
the
time
prescribed,
that
the
Magistrate
was
in
error
in
finding
duplication
in
the
two
charges.
The
charges
were
for
the
same
offence,
one
being
for
failure
on
July
17,
1957
to
comply
with
the
demand
and
the
other
in
identical
terms
for
failure
to
comply
on
July
18,
1957.
As
the
offence
was
a
continuing
one
he
held
each
information
to
be
valid.
I
have
examined
the
authorities
referred
to
in
R.
v.
Donen
as
well
as
others.
Apart,
however,
from
any
authorities
I
would
have
no
hesitation
in
reaching
the
conclusion
that
the
offence
herein
is
a
continuing
offence
commencing
from
the
expiry
of
the
prescribed
15
days.
The
information
in
this
instance
was
that
the
accused
was
in
default
on
the
16th
day,
the
earliest
time
at
which
he
could
be
said
to
be
in
default.
I
find
no
fault
under
the
circumstances
in
the
use
of
the
word
‘‘on’’
rather
than
‘by”
in
the
information.
Having
reached
that
conclusion
I
would
allow
the
appeal
and
direct
that
the
answers
of
the
Court
below
be
varied
to
read
as
follows:
(a)
No
(b)
No
(c)
Yes.
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