Super Jewellers Inc. v. Minister of National Revenue, [1986] 1 CTC 2591, 86 DTC 1404

Rip, T.C.J.:—The appellant, Super Jewellers Inc., appeals a reassessment for its 1980 taxation year, notice of which is dated April 11, 1985, in which the respondent, the Minister of National Revenue ("Minister") assessed a penalty under subsection 163(2) of the Income Tax Act ("Act"). The Court is asked to determine whether the assessment under appeal is erroneous in law for any or both of the following reasons, namely:

(a) that the penalty is barred by subsection 239(3) of the Act; and

(b) the assessment of the penalty infringes or denies the appellant's rights guaranteed by paragraph 11(h) of the Canadian Charter of Rights and Freedoms ("Charter").

Facts

The facts are not in issue.

By notice of reassessment no. 773039 dated April 22,1982 (the "first notice of reassessment"), the Minister advised the appellant of a reassessment of its 1980 taxation year which increased its taxable income from nil, as reported in its income tax return for 1980, to $217,617 and levied a penalty in the amount of $11,760.25 under subsection 163(2) of the Act. The notation in the notice of reassessment states “Penalty of $11,760.25 levied under section 163(2)* [1] of the Income Tax Act is included in Federal Tax.” The appellant objected to the reassessment.

On February 24, 1984, an information was laid or made against the appellant under section 239 of the Act for wilful evasion of payment of the taxes for the taxation years 1979 and 1980.

On November 15, 1984, the appellant pleaded guilty before the Provincial Court of Ontario to the wilful evasion of payment of taxes in the amount of $37,578.25 by failing to report income in the 1979 and 1980 taxation years in the amount of $201,186.20. The unreported income for the 1980 taxation year to which such evasion related was $184,530.20.

On November 15, 1984, as a result of the plea of guilty, the appellant was convicted under section 239 of the Act of wilful evasion of payment of taxes in the amount of $37,578.25 by failing to report income in the taxation years 1979 and 1980 in the amount of $201,186.20. The punishment imposed on the appellant was a fine equal to 100 per cent of the amount of tax sought to be evaded, namely $37,578.25, or distress.

Subsequent to the disposition of the proceedings before the Provincial Court, the appellant, through its solicitors, wrote to the respondent confirming the amount of tax to be reassessed and indicated that it would not object to such reassessments of tax; the letter did not indicate that the appellant would not object to any assessment of a penalty under subsection 163(2) of the Act.

By notice of reassessment dated April 11, 1985, (“second notice of reassessment”) the Minister advised the appellant that its unreported income for 1980 was reduced from $217,617.00 to $185,530.20; the second notice of reassessment included ‘notification of a penalty levied against the appellant under subsection 163(2) of the Act in the amount of $8,769.71. The assessment of the penalty was based on the assumption that during its fiscal year ending January 1, 1980 the appellant failed to report all of its gross sales from its jewellery business from which sales it derived taxable income of $184,530.20. The notation on the notice of reassessment, dated April 11, 1985, stated “Penalty of $8,769.71 levied under section 163(2) of the Income Tax Act is included in Federal Tax.”

Is assessment of penalty contrary to subsection 239(3) of the Act?

Subsection 239(3) of the Act reads as follows:

taxation year as required by or under this Act or a regulation, is liable to a penalty of

(a) 25% of the amount, if any, by which

(i) the tax for the year that would be payable by him under this Act if his taxable income for the year were computed by adding to the taxable income reported by him in his return for the year that portion of his understatement of income for the year that is reasonably attributable to the false statement or omission

exceeds

(ii) the tax for the year that would have been payable by him under this Act had his tax payable for the year been assessed on the basis of the information provided in his return for the year, and

(b) 25% of the amount, if any, by which

(i) the amount that would be deemed by subsection 122.2(1) to be paid for the year by him or his spouse, as the case may be, if that amount were calculated by reference to the information provided in the form

exceeds

(ii) the amount that is deemed by subsection 122.2(1) to be paid for the year by him or his spouse, as the case may be.

239 (3) Where a person has been convicted under this section of wilfully, in any manner, evading or attempting to evade payment of taxes imposed by Part I, he is not liable to pay a penalty imposed under section 163 for the same evasion or attempt unless he was assessed for that penalty before the information or complaint giving rise to the conviction was laid or made.

The appellant’s position is that the penalty included in the notice of reassessment dated April 11, 1985, was imposed for the same wilful evasion of payment of taxes as that for which it already had been convicted and that the penalty was assessed after the information or complaint giving rise to the conviction was laid or made.

Counsel for the appellant argued that where a notice of reassessment under the Act is issued against a taxpayer for a taxation year subsequent to another notice of reassessment (or an original notice of assessment) against the same taxpayer for the same year, the subsequent reassessment supersedes, displaces and nullifies the prior assessment. Counsel relied on the decision of the President of the Exchequer Court of Canada, as he then was, in Abrahams [No. 1] v. M.N.R., [1966] C.T.C. 690 at 692; 66 D.T.C. 5451 at 5452, who stated that:

Assuming that the second re-assessment is valid, it follows, in my view, that the first re-assessment is displaced and becomes a nullity. The taxpayer cannot be liable on an original assessment as well as on a re-assessment. It would be different if one assessment for a year were followed by an “additional” assessment for that year. Where, however, the “re-assessment” purports to fix the taxpayer's total tax for the year, and not merely an amount of tax in addition to that which has already been assessed, the previous assessment must automatically become null.

Counsel also cited the decisions of Walkem v. M.N.R., [1971] C.T.C. 513; 71 D.T.C. 5288 (F.C.T.D.), per Walsh, J. and Greenspoon et al. v. M.N.R., [1982] C.T.C. 2163; 82 D.T.C. 1181 (T.R.B.), per G. Tremblay, as he then was. In Greenspoon, Mr. Tremblay held that penalties assessed after a conviction are nullities, whether they increase or decrease the penalties assessed prior to the laying or making of the information or complaint giving rise to the conviction. He stated at 2178 (D.T.C. 1191):

These (later) penalties are legally severed from the ones provided in the former assessments or reassessments even if the appellants were convicted (earlier) substantially for the same evasion.

Counsel for the appellant submitted the appellant was not assessed for the penalty “before the information or complaint giving rise to the conviction was later made,’ as contemplated by subsection 239(3) of the Act, because the issuance of the second notice of reassessment operated to render the first notice of reassessment, and hence the penalty thereby, a nullity; the information or complaint giving rise to the conviction of the appellant was laid or made on February 24, 1984; the second notice of reassessment, which included a penalty levied under subsection 163(2) of the Act, ws made April 11, 1985, which is after the information or complaint giving rise to the conviction was laid or made.

The respondent's position is twofold: the second notice of reassessment did not result in the first notice of reassessment becoming a nullity and if it is a nullity, the construction of subsection 239(3) authorizes him to do what he did in the second notice of reassessment.

Counsel for the respondent argued that the penalty levied in the second notice of reassessment is the same penalty as that levied in the first notice of reassessment, and the penalty therefore was levied on the date of the first notice of reassessment, April 22, 1983, prior to the time the information or complaint giving rise to the conviction was laid or made. Counsel cited the cases of Walkem (supra), Abrahams (supra), Andrulionis v. M.N.R., [1967] Tax A.B.C. 1135; 68 D.T.C. 76, and the practice note in Elgin Cooper Realties Ltd. v. M.N.R., [1969] C.T.C. 426; 69 D.T.C. 5276, to support his submission that with the exception of Greenspoon, (supra), where a subsequent reassessment merely reduced the taxable income, the Court has been predisposed to find the previous reassessment has not been rendered a nullity; the second reassessments in these cases have merely modified the first reassessments. In counsel's view a second reassessment which merely reduces the first reassessment and does not affect the issue that was raised in the first reassessment is in the nature of an additional assessment.

Mr. Malette referred to his second argument as an “object and spirit” interpretation of subsection 239(3) of the Act; he based himself on Estey, J.'s guidelines in Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536 at 580, [1984] C.T.C. 294 at 316 (S.C.C.). The purpose of subsection 239(3) of the Act is for the Minister to assess a penalty under section 163 of the Act for the same evasion or attempt before an information or complaint is laid or made so that the court of jurisdiction hearing the offence under subsection 239(1) of the Act can be made aware of any administrative fine imposed on a taxpayer under subsection 163(2) of the Act before it imposes its own fine: Robertson v. M.N.R., [1972] C.T.C. 2588 at 2589; 72 D.T.C. 1489 at 1490. See also Savoy Hotel Co. (London) Ltd. et al. v. M.N.R., [1969] Tax A.B.C. 384; 69 D.T.C. 294, and Lorenz v. M.N.R., [1969] Tax A.B.C. 580; 69 D.T.C. 428. Thus, affirms counsel for the respondent, the court having jurisdiction for offences under subsection 239(1) of the Act will not be misled as to the taxpayer's maximum exposure to the aggregate amounts of fine and penalty in determining the quantum of the fine it ought to impose. When after the trial a penalty imposed under subsection 163(2) of the Act is reduced from that originally imposed, the purpose of subsection 239(3) of the Act remains intact: the judge presiding at the trial for the offence under subsection 239(1) of the Act has had the opportunity of considering the maximum penalty that would have been imposed administratively under subsection 163(2) of the Act. Further, added Mr. Malette, where there has been a decrease in penalty, say from $100 to $50, the amount of the lower penalty, $50, has already been assessed or included in the original penalty of $100. Counsel acknowledges that subsection 239(3) of the Act provides a taxpayer shall not be liable for a penalty under section 163 of the Act unless he has been assessed for that penalty before the information was laid; he submitted however that in the case at bar the appellant was assessed for a penalty under section 163 of the Act before the information was laid. The words “that penalty” in subsection 239(3) of the Act refer to a penalty being assessed prior in time to the information or complaint being laid or made. The penalty set out in the second notice of assessment was made prior to the information or complaint being laid or made.

Counsel for the respondent asked the Court to reject the findings in Abrahams, (supra), and Walkem, (supra), since the issue before this Court is not one where the Court's jurisdiction to hear an appeal is in issue, as it was in those cases. Like Mr. Nathanson, Mr. Malette also relied on a decision of this Court, namely Fitzgerald v. M.N.R., [1980] C.T.C. 2949; 80 D.T.C. 1822. In Fitzgerald (supra), Mr. Goetz, as he than was, stated, on page 2951 (D.T.C. 1823-24) that:

In my view, the only reasonable interpretation of subsection 239(3), as it relates to the facts in this case, is that prior to the swearing of the information to which the appellant pleaded guilty, a penalty had been imposed. Subsequent to the criminal proceedings, the penalty was still in existence but was reduced by a reas- sessment. Consequently, the appellant cannot take advantage, as he seeks to do, that he is protected from paying a penalty in the situation in which he now finds himself.

Mr. Malette also drew the Court's attention to the reasons for judgment of Heald, J. in M.N.R. v. Ritchie, [1971] C.T.C. 860 at 864; 71 D.T.C. 5503 at 5506, where the learned Judge wrote:

It is an essential canon of construction that if words are susceptible of a reasonable and also of an unreasonable construction, the former construction must prevail.*

Maxwell on Interpretation of Statutes, 12th ed., states the rule to be followed very clearly on page 199:

In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one: An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.

*Beal’s Cardinal Rule of Legal Interpretation, 3rd Ed., page 371.

In his reply to the argument of respondent's counsel concerning the nullity of the second notice of reassessment, Mr. Nathanson submitted that subsections 165(7) and 164 (4.1) of the Act support his client’s position. The former provision which, has been in force since 1972, provides that a taxpayer may appeal to this Court or the Federal Court of Canada from a reassessment or additional assessment, or if an appeal from the first assessment is before either Court, the taxpayer may amend his appeal by joining an appeal in respect of the second reassessment or additional assessment on such terms as the Court may direct; no notice of objection to the subsequent reassessment or additional assessment need be filed. Subsection 164(4.1) of the Act came into force in 1984 and provides that notwithstanding any decision of the Court against the Minister which he appeals, he shall issue a reassessment, or vary or vacate the assessment appealed from, and repay tax, interest or penalties in accordance with the decision of the Court; the Minister may appeal to the Supreme Court and Federal Court notwithstanding a variation or vacation of any assessment by the Court or any reassessment and an appeal from a decision of this Court shall proceed as if it were an appeal from the assessment that was referred back, varied or vacated. Counsel stated that Parliament, in legislating subsection 165(7) of the Act, was concerned with the fact situation that emerged in Abrahams, (supra), Andrulonis, (supra) and Elgin Cooper Realties Ltd., (supra), and in legislating subsection 164(4.1) of the Act intended to deal with the nullity problem of Abrahams, (supra).

Mr. Nathanson further argued that the Minister ought only to have reassessed tax on the basis of the recomputation of the appellant’s income, but ought to have refrained from issuing the penalty because subsection 239(3) of the Act precludes him from doing so. Counsel submitted that in first assessing a penalty under section 163 of the Act the Minister must be absolutely certain as to the quantum of the tax evaded under subsection 163(1) of the Act, or the income unreported in circumstances described in subsection 163(2) of the Act, because if he errs as to the quantum when assessing the penalty at the very outset, he ceases to be able to levy a penalty under section 163 of the Act even if he subsequently determines the tax evaded or the unreported income ought to be reduced.

If one accepts the appellant’s position that the penalty included in the first notice of assessement is nullified by the second notice of reassessment Parliament’s purpose in enacting section 165 to permit a taxpayer to object to an assessed penalty under section 165 of the Act becomes meaningless if it is then followed by a prosecution under subsection 239(1) of the Act. Counsel in effect is saying that except for confirming or vacating the penalty, the Minister is barred from otherwise reducing the amount of the penalty. Section 165 provides for the right of a taxpayer to object to an assessment and for the Minister to reconsider the assessment. In the event the Minister erred in the making of the first assessment he is obliged to correct his actions by vacating, confirming or varying the assessment or reassessing.

Section 169 of the Act provided that:

169. Where a taxpayer has served notice of objection to an assessment under section 165, he may appeal to the Tax Review Board to have the assessment vacated or varied after either

(a) the Minister has confirmed the assessment or reassessed,

but no appeal under this section may be instituted after the expiration of 90 days from the day notice has been mailed to the taxpayer under section 165 that the Minister has confirmed the assessment or reassessed.

Thus section 169 of the Act contemplates an appeal from the assessment, not the reassessment. This is precisely the procedure followed by the appellant in the Elgin Cooper Realties Ltd. appeal, (supra), and which was approved by the President of the Exchequer Court, notwithstanding his earlier decision in Abrahams, (supra). The assessment is not necessarily a nullity.

Subsection 165(7) of the Act recognizes that the making of an assessment after a notice of objection has been filed against a previous assessment for the same year does not nullify the process of the Minister reconsidering the assessment objected to and what has taken place up to that point. Subsection 165(7) contemplates that the Minister may make some changes to the first assessment which are not to the entire satisfaction of the taxpayer. Subsection 164(4.1) of the Act merely provides a mechanism to permit the Minister to repay tax, interest and penalties to a taxpayer who has successfully appealed from an assessment and to enable the Minister to appeal the decision of the Court.

A notice of assessment (or of reassessment) is not an assessment (or reassessment). Thorson, P. stated in Morch v. M.N.R., [1949] C.T.C. 250 at 258; 49 D.T.C. 649 at 653, that:

It is well to keep in mind that the notice of assessment is not the same thing as the assessment. The former is merely a piece of paper whereas the latter is an important administrative Act within the exclusive function of the Minister, the character of which was discussed fully, in Pure Springs Company Limited v. Minister of National Revenue, [1946] Ex. C.R. 471 at 498; [1946] C.T.C. 169 at p. 178.

Subsection 152(8) of the Act provides that an assessment shall be deemed to be valid and binding, subject to being varied or vacated on objection or appeal. "Vary" is defined as follows:

a) Intr. 1. Of things: To undergo change or alteration; to pass from one condition, state, etc., to another ... 4. To differ in respect of statement; to give a different or divergent account.

Trans. 1. To cause to change or alter; to introduce changes or alterations into (something) . . . 2. To express in different words.

1. The Court, after such notice, . . . may v. such order in such manner . . . as it may think fit.

The Shorter Oxford English Dictionary On Historical Principles

The word “varied” in subsection 152(8) of the Act, in the French version is “modifications qui peuvent y être apportées . . ..” ln section 169 of the Act the words “pour faire . . . modifier” are used.

When a taxpayer objects to an assessment, because one or more items are included in his income by the Minister in determining his tax liability, the Minister is obligated to reconsider all matters touching the issues objected to. The Minister in effect is reviewing his assessment. The taxpayer may submit evidence supporting his objection which the Minister did not have before him when assessing: in his notice of objection to an assessment the taxpayer sets out the reasons for the objection and all relevant facts. It ought not to be forgotten that the facts are, in a special degree if not exclusively, within the appellant’s cognizance: Anderson Logging Co. v. The King, [1925] S.C.R. 45 at 50; [1917-27] C.T.C. 198 at 202; 52 D.T.C. 1209 at 1211. For one reason or another a taxpayer may not have adduced all facts to the Minister prior to the initial assessment and this omission may lead the Minister to err in making the assessment.* [1] But if, on reconsideration of the assessment, all facts are made known to the Minister, he must vary the assessment in accordance with the facts. To interpret subsection 239(1) of the Act to preclude the Minister from varying a penalty assessed under subsection 163(2) of the Act in the first assessment to a lower amount in a second reassessment would render section 163 of the Act meaningless since a taxpayer could escape the penalty by simply waiting until after an information or complaint was laid or made, in particular after the trial, before making all the facts known to the Minister. Parliament did not intend the Act to be administered in such a wanton manner.

In the case at bar the reassessment referred to in the second notice of reassessment was not independent of the reassessment referred to in the first notice of reassessment. The second reassessment, notice of which is dated April 11, 1985, resulted from a notice of objection to the assessment referred to in the first notice of reassessment. The Minister decreased both the unreported income of the appellant and the penalty. The initial reassessment was thus varied in accordance with subsection 165(3) of the Act. The notice of reassessment dated April 11, 1985, was the paper advising the appellant of the variance. The penalty referred to in the second notice of reassessment is the penalty that had been referred to in the first notice of reassessment. The result of the Minister’s reconsideration of the reassessment, notice of which was dated April 22, 1983, was to reduce the assessment of the penalty, not to eliminate it. The penalty appealed from was assessed before the information or complaint giving rise to the conviction was laid or made.

Paragraph 11(h) of the Charter

The appellant further argues that the assessment of a penalty under subsection 163(2) of the Act denies its rights guaranteed by paragraph 11(h) of the Charter since he has already been charged with, and convicted of, the offence of wilful evasion of taxes under section 229 of the Act and sentenced to pay a fine in the amount of $37,578.25. Accordingly, says counsel for the appellant, by virtue of subsection 52(1) of the Constitution Act, 1982 subsection 163(2) of the Act should be held to be inoperative to the extent that it authorizes the assessment of a penalty thereunder after conviction of wilful evasion of payment of taxes to which such penalty relates. The Minister is constrained by paragraph 32(1)(a) of the Charter from assessing the penalty under subsection 163(2) of the Act.

Paragraph 11(h) of the Charter reads as follows:

Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.* [2]

Section 1 of the Charter provides that the Charter:

. . . guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

By virtue of paragraph 32(1 )(a) of the Charter, “the Charter applies to the Parliament and Government of Canada in respect of all matters within the authority of Parliament . . .”. Subsection 24(1) of the Charter provides:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Subsection 52(1) of the Constitution Act, 1982 reads as follows:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

The Charter is included as Part I of the Constitution Act, 1982 and, by virtue of subsection 52(2) of the Constitution Act, 1982 is included in the Constitution of Canada.

Counsel for the appellant submits that the imposition of a penalty under subsection 163(2) of the Act, after his conviction of the charges under section 229 of the Act and punishment, "cannot reasonably be regarded as anything other than punishment for the same evasion?' In support of his position counsel referred the Court to the reasons for judgment of McDonald, J. in Regina v. T.R. (No. 2) (1984), 7 D.L.R. (4th) 263 (Alta. Q.B.) at pages 268-69 and pages 274-75 where he stated that "the word 'offence' as used in s. 11(h) has a meaning which encompasses any violation of the law based on the same facts.”

Mr. Nathanson invited the Court to give a large and liberal construction to the Charter: Law Society of Upper Canada v. Skapinker (1984), 9 D.L.R.

(4th) 161 (S.C.C.) per Estey, J. at page 168; Re Southam Inc. and The Queen (No. 1) (1983), 146 D.L.R. (3d) 408; 41 O.R. (2d) 113 (Ont. C.A.), per MacKinnon, A.C.J.O. at page 418 (O.R. 123). The word "offence" used several times in paragraph 11(h) of the Charter is not an identical offence in the technical sense, but rather, the identical evasion in the broad sense, according to Mr. Nathanson.

Appellant’s counsel argued that once the appellant was charged with an offence of wilful evasion of taxes under section 229 of the Act, and having been found guilty and punished, it has the right, as provided in paragraph 11(h) of the Charter not to be punished for such offence again; the imposition of the penalty under subsection 163(2) of the Act infringes or denies the appellant’s stated right. To the extent that subsection 163(2) of the Act empowers the Minister to assess a person for a penalty who has also been convicted of wilful evasion of payment of taxes to which such penalty relates, it is inconsistent with the provisions of paragraph 11(h) of the Charter and is accordingly, to the extent of such inconsistency, of no force or effect, by virtue of subsection 52(1) of the Constitution Act, 1982.

The main thrust of the argument of counsel for the respondent is that the word “offence" in paragraph 11(h) of the Charter refers to a criminal, as opposed to a civil offence, and alternatively, the offence under subsection 163(2) of the Act is not the same offence as that in section 239 of the Act. In support of his first argument counsel relied upon the reasons for judgment of the Chief Justice of Canada in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 344; the Ontario Court of Appeal decision in Regina v. Morgentaler, Smoling and Scott, 52 O.R. (2d) 353 at 405; Re Eagle Disposal Systems Ltd. et al. and the Minister of Environment et al. (1983), 9 C.C.C. (3d) 500 at 508; 13 C.E.L.R. 13 at 19; affirmed by (1984), 47 O.R. (2d) 332 at 333; 13 C.C.C. (3d) 351 at 352; Bowen v. The Minister of Employment and Immigration, [1984] 2 F.C. 507, Regina v. Mingo et al. (1982), 1 C.C.C. (3d) 23, per Toy, J. at 36 and Hogg, P. Constitutional Law of Canada, 2nd ed., page 776. The following authorities were cited by counsel in support of his alternative argument: Regina v. Krug (1982), 7 C.C.C. (3d) 324, per Vannini, J. at 331-32 and (1983), 7 C.C.C. (3d) 337 per Dubin, J. at 337; The Queen v. Taylor, [1984] C.T.C. 436 at 440-41; 84 D.T.C. 6459 at 6463; Hogg, P., (supra), page 777.

I have determined that the penalty imposed pursuant to subsection 163(2) of the Act was assessed prior to the laying or making of the information or complaint giving rise to the conviction. Counsel for the appellant appears to have continued his argument on the Charter issue on the basis that the penalty assessed under subsection 163(2) of the Act was made after the conviction under subsection 239(1) of the Act. He argues that since the appellant has already been punished under section 239 of the Act, paragraph 11(h) of the Charter precludes a penalty being assessed under subsection 163(2) of the Act; to assess a penalty would be to punish the appellant a second time. Because of my earlier finding that the assessment of the penalty was prior to the initiation of proceedings under section 239 of the Act, I have had difficulty in following counsel’s reasoning on this point. Since at time of the trial before the Provincial Court the penalty under subsection 163(2) had been assessed, counsel, for the purpose of consistency, ought to have raised at that trial the defence that the prosecution of his client under subsection 239(1) of the Act was contrary to paragraph 11(h) of the Charter, if indeed it is. The penalty assessed under subsection 163(2) of the Act was levied prior to the appellant being found guilty and punished for an offence described in subsection 239(1) of the Act.

Accordingly I need not consider the merits of the respondent counsel's arguments.

The appeal will be dismissed.

Appeal dismissed.