Smythe v. The Queen, [1971] SCR 680

Supreme Court of Canada

Smythe v. The Queen, [1971] S.C.R. 680

Date: 1971-06-28

Conn Stafford Smythe Appellant;

and

Her Majesty The Queen Respondent.

1971: June 14; 1971: June 28.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Taxation—Civil rights—Equality before the law—False and deceptive income tax return—Attorney General electing to proceed by indictment instead of summary conviction—More severe penalties—Canadian Bill of Rights, 1960 (Can.), c. 44, ss. 1, 2—Income Tax Act, R.S.C. 1952, c. 148, s. 132.

The appellant was charged with evading income tax payments and with having made false and deceptive statements in his income tax returns, contarary to ss. 132(1) (d) and 132(1) (a) of the Income Tax Act, R.S.C. 1952, c. 148. Pursuant to s. 132(2), the Attorney General elected that these charges be prosecuted upon indictment, thereby

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rendering the appellant liable to more severe penalties than if prosecuted by way of summary convicition pursuant to s. 132(1). A judge of the County Court held that he had no jurisdiction to try the charges because s. 132(2) was inoperative by reason of the provisions of ss. 1 and 2 of the Canadian Bill of Rights, 1960 (Can.), c. 44. An application by the Attorney General for an Order of mandamus was granted by the High Court of Ontario. This judgment was affirmed by the Court of Appeal. The appellant appealed to this Court where his fundamental submission is that s. 132(2) is made inoperative because it violates the principle established under s. 1(b) of the Canadian Bill of Rights of the right of the individual to equality before the law and the protection of the law.

Held: The appeal should be dismissed.

The provisions of s. 132(2) of the Act are not discriminatory and do not offend the principle of equality before the law. They do not, by themselves, place any particular person or class of persons in a condition of being distinguished from any other member of the community. They are applicable without distinction to everyone. The manner in which a Minister of the Crown exercises a statutory discretionary power conferred upon him for the proper administration of a statute is irrelevant in the consideration of the question whether the statute, in itself, offends the principle of equality before the law. Enforcement of the law and especially of the criminal law would be impossible unless someone in authority be vested with some measure of discretionary power. If an authority such as the Attorney General can have the right to decide whether or not a person shall be prosecuted, surely he may, if authorized by statute, have the right to decide what form the prosecution shall take. The situation is not altered because s. 132(2) provides for a minimum term of imprisonment. Before the enactment of the Canadian Bill of Rights, the discretion of the Attorney General to elect the mode of prosecution as he saw fit was part of the British and Canadian conception of equality before the law. It is not possible to infer from the provisions of the Canadian Bill of Rights any suggestion that Parliament diferred from that view or had any intention to depart so radically from that state of law. The appellan’t submission is tantamount to a recognition that Parliament has used an oblique method to paralyse the administration of the law.

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APPEAL from a judgment of the Court of Appeal for Ontario[1], affirming a judgment of the High Court which had granted an Order of mandamus. Appeal dismissed.

John J. Robinette, Q.C., for the appellant.

Joseph Sedgwick, Q.C., and N.A. Chalmers, Q.C., for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This is an appeal from a unanimous judgment of the Court of Appeal for Ontario¹ refusing to set aside an Order of Mandamus issued by Chief Justice Wells of the High Court, whereby he directed His Honour Judge Joseph P. Kelly, a judge of the County Court Judge’s Criminal Court for the County of York or some other judge of that court, to proceed with the trial of the appellant on an indictment presented in that court.

The circumstances leading to this appeal may be stated briefly. By information, sworn to on July 9, 1969, the appellant was charged to have, between April 28, 1965 and March 2, 1968, evaded income tax payments in the amount of $289,372.33 and also to have made false and deceptive statements in his income tax returns for taxation years 1964, 1965, 1966 and 1967, committing thereby infractions respectively described in s. 132(1) (d) and in s. 132(1) (a) of the Income Tax Act, R.S.C. 1952, c. 148, as amended.

Pursuant to s. 132(2) of the Act, the Attorney General of Canada elected that these charges be prosecuted upon indictment. The accused elected trial by a county court judge alone and, after a preliminary inquiry, was committed for trial on February 18, 1970. An indictment was then preferred with respect to these charges by the agent of the Attorney General of Canada. On October 5, 1970, the accused appeared before His Honour Judge Kelly and after being arraigned on the indictment, without any plea having been taken, his counsel moved to quash the indictment on

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the ground that s. 132(2) of the Income Tax Act was inoperative by reason of the provisions of ss. 1 and 2 of the Canadian Bill of Rights, 1960 (Can.), c. 44, and that the presiding judge had therefore no jurisdiction to try the charges for the alleged infractions of s. 132(1) of the Income Tax Act.

The learned judge allowed this motion to quash. He held that the provisions of s. 132(2) permitting the Attorney General of Canada to proceed by indictment at his election,—in which event the accused is liable to more severe penalties than if prosecuted by way of summary conviction pursuant to s. 132(1),—were repugnant to the requirement of s. 1(b) of the Canadian Bill of Rights that every law of Canada be construed and applied so as not to abrogate the right to equality before the law. The learned judge relied on the decision of the Supreme Court of Oregon in State of Oregon v. Pirkey[2] which was subsequently applied by the Supreme Court of the State of Washington in Olsen v. Delmore[3], and he declined to follow the unanimous judgment rendered in Regina v. Court of the Sessions of the Peace et al., ex parte Lafleur[4], where the Court of Appeal for the province of Quebec had rejected as ill founded a similar argument made in a case similar to the present.

The Attorney General of Canada then applied to the High Court for an Order of Mandamus. The application was heard and ultimately granted by Chief Justice Wells. In lengthy reasons for judgment, the Chief Justice of the High Court reviewed the history of the Office of the Attorney General, found that the discretion of the latter to conduct criminal proceedings as he saw fit was, at the time of the coming into force of the Canadian Bill of Rights, part of the British and Canadian conception of equality before the law, held that in view of the existing difference in the system of Government in Canada and that of the United States of America, the cases decided in the American State Courts had no application in

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Canada notwithstanding any similarity of wording between the 14th Amendment of the Constitution of the United States of America and the relevant provisions of the Canadian Bill of Rights and, finally, he held that the refusal of the Supreme Court of Canada to grant leave to appeal from the judgment in the Lafleur case, supra, made that judgment binding upon him.

The appeal of Smythe from this judgment of the High Court was dismissed at the conclusion of the argument. Delivering orally the judgent for the Court of Appeal, Chief Justice Gale referred to the decision in Lafleur, supra, and the refusal of this Court to grant leave to appeal from the same; and the learned Chief Justice also pointed out that in Regina v. Drybones[5] there was no suggestion in any of the reasons for judgment that the correctness of the decision in the Lafleur case was in doubt. Hence the present appeal to this Court.

It is convenient, at the outset, to reproduce the provisions of s. 132(2) of the Income Tax Act and state the substance of appellant’s submissions expressed in the concluding paragraphs of his factum.

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

In appellant’s views, s. 132(2) is made inoperative by the Canadian Bill of Rights because:

(i) the section violates the principle established under s. 1(b) of the Canadian Bill of Rights., that is “the right of the individual to equality before the law and the protection of the law”;

(ii) in the alternative, the section violates s. 2(a) of the Canadian Bill of Rights in that it authorizes the Attorney General to decide in advance, when at the highest he can only have prima facie evi-

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dence before him, that the sentence must be at least two months should the accused be convicted;

(iii) in the further alternative, the section violates s. 2(e) of the Canadian Bill of Rights in that the Attorney General can decide in advance without any hearing at all, much less a fair hearing, that the sentence must be at least two months if the accused is convicted and this at a time when the Minister of Justice can at the highest only have prima facie evidence before him.

In essence, appellant’s basic submission is that the unfettered discretionary power, conferred by s. 132(2) upon the Attorney General of Canada, to decide whether a person charged of an offence under s. 132(1) should be prosecuted by way of summary conviction or by way of indictment,—and thus be subjected, if convicted, to more severe mandatory penalties in the latter than in the former case,—constitutes a disparity or discrimination completely destructive of the concept of equality before the law. It is argued that there being no standard whatsoever set out or even indicated in s. 132(2) to guide or control this unfettered discretionary power, the Attorney General of the day is empowered to treat differently persons charged under s. 132(1) or to treat differently cases which are similar, or to require less serious cases to proceed by indictment or to adopt a policy which differs from that of another Attorney General and which may even vary, in its application, from province to province and from city to city.

In my opinion, appellant’s views fail to recognize that the provisions of s. 132(2) do not, by themselves, place any particular person or class of persons in a condition of being distinguished from any other member of the community and that, applicable without distinction to everyone, as indeed they are, these provisions simply confer upon the Attorney General of Canada the power of deciding, according to his own judgment and in all cases, the mode of prosecution for offences described in s. 132(1). Appellant’s arguments also fail to recognize that the manner

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in which a Minister of the Crown exercises a statutory discretionary power conferred upon him for the proper administration of a Statute is irrelevant in the consideration of the question whether the Statute, in itself, offends the principle of equality before the law. Obviously, the manner in which the Attorney General of the day exercises his statutory discretion may be questioned or censured by the legislative body to which he is answerable, but that again is foreign to the determination of the question now under consideration. Enforcement of the law and especially of the criminal law would be impossible unless someone in authority be vested with some measure of discretionary power. The following statements made in the Lafleur case, supra, at page 248, by Montgomery J., with the concurrence of Chief Justice Tremblay and Pratte J., are to the point and I adopt them.

I cannot conceive of a system of enforcing the law where some one in authority is not called upon to decide whether or not a person should be prosecuted for an alleged offence. Inevitably there will be cases where one man is prosecuted while another man, perhaps equally guilty, goes free. A single act, or series of acts, may render a person liable to prosecution in more than one charge, and someone must decide what charges are to be laid. If an authority such as the Attorney-General can have the right to decide whether or not a person shall be prosecuted, surely he may, if authorized by statute, have the right to decide what form the prosecution shall take. I cannot see that the situation is altered because s. 132(2) provides for a minimum term of imprisonment.

I am also in complete agreement with the view expressed in the present case by Chief Justice Wells who concluded that before the enactment of the Canadian Bill of Rights, the discretion of the Attorney General to elect the mode of prosecution as he saw fit was part of the British and Canadian conception of equality before the law. And I am unable to infer from the provisions of the Canadian Bill of Rights any suggestion that Parliament differed from that view or had any intention to depart so radically from that state of the law. Indeed, if appellant’s fundamental submission was acceded to, some thirty sections of

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the Criminal Code and others in some forty Canadian statutes where, as in s. 132(2), the power to elect to proceed by way of summary conviction or by way of indictment is conferred, would be rendered inoperative. In brief, appellant’s submission is potentially destructive of statutory ministerial discretion conferred upon a Minister of the Crown for the administration of the law in Canada and tantamount to a recognition that Parliament has used an oblique method to paralyze the administration of the law.

With respect to the decision of the Supreme Court of Oregon in the Pirkey case, supra, as well as that of the Supreme Court of the State of Washington in Olsen v. Delmore, supra, I agree that these decisions are of no assistance in view of the differences existing between the systems of Government obtaining in Canada and in the United States of America. And I may, incidentally, point out that, as appears by the following extract of the reasons for judgment delivered by Brand J., in the Pirkey case, this decision rests mainly on the fact that, contrary to what is the case in Canada, the distinction between a felony and a misdemeanor still obtains in the United States of America. The extract can be found at p. 703 of the report:

Since the provision for punishment constitutes one element in the definition of a crime, it would appear that this statute, in effect, defines two crimes as a matter of substantive law; one a felony, and the other a misdemeanor. And since the statute itself furnishes no criterion by which to determine when an accused is to be charged with felony, and when with a misdemeanor, the statute, at least insofar as it provides for alternative charges, must be void by reason of constitutional mandate, unless a criterion not set forth in the statute can be implied therefrom, and unless the power to apply it can be delegated to the grand jury or magistrate.

In my opinion, the provisions of s. 132(2) of the Income Tax Act are not discriminatory and do not offend the principle of equality before the law. It follows that appellant’s basic submission must be rejected as ill founded.

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In these views, I find it unnecessary to say more with respect to the appellant’s two alternative submissions, than that I am unable to find any substance in either. Suffice it to say that prima facie evidence tendered in an ex parte application before a justice of the peace is sufficient to permit him to compel, either by summons or warrant, the appearance before the court of the person charged and that prima facie evidence may also permit a justice of the peace to commit the person charged for trial at the end of the preliminary inquiry. To invite a person to be charged to make representations to the Attorney General before an information is laid before a justice of the peace would, in many cases and surely in most of the important ones, be tantamount to an invitation to that person to abscond. The following comments made by Kerwin J., as he then was, in Dallman v. The King[6], at the bottom of page 344, is here relevant:

However, the gist of this ground of appeal is that the appelant is the. only one entitled to exercise the option as to the mode of trial. It would be strange if that were so as it would mean that a person against whom it was decided to prefer charges would first have to be found in order to ascertain his wishes in that regard; and we are clearly of opinion that this contention cannot prevail.

I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: J.J. Robinette, Toronto.

Solicitor for the respondent: N.A. Chalmers, Toronto.