Woods,
JA:—This
is
an
appeal
by
the
Crown
from
the
dismissal
by
Macdonald,
J
[[1975]
WWD
177]
of
an
appeal
by
way
of
stated
case
from
Bence,
JMC.
The
charge
against
the
respondent,
George
E
Paveley,
was
laid
on
December
6,
1974
and
was
as
follows:
The
Informant
says
that
he
has
reasonable
and
probable
grounds
to
believe
and
does
believe
that
GEORGE
E
PAVELEY,
of
the
City
of
Regina,
in
the
Province
of
Saskatchewan,
between
the
1st
day
of
January,
1970
and
the
30th
day
of
April,
1973
wilfully
evaded
payment
of
taxes
imposed
by
the
Income
Tax
Act,
RSC
1952,
Chapter
148,
and
amendments
thereto,
with
respect
to
income
received
by
him
in
the
amount
of
$33,053.06,
contrary
to
Section
239(1
)(d)
of
the
said
Act.
The
pertinent
portion
of
paragraph
239(1
)(d)
of
the
Income
Tax
Act,
SC
1970-71-72,
c
63,
reads:
239.
(1)
Every
person
who
has
(d)
wilfully,
in
any
manner,
evaded
.
.
.
payment
of
taxes
imposed
by
this
Act
.
.
.
is
guilty
of
an
offence
.
.
.
Bence,
JMC
found
the
respondent
not
guilty.
The
facts
stated
in
the
appeal
by
way
of
stated
case
were
as
follows:
1.
The
facts
established
at
trial
were
not
in
dispute.
The
Respondent,
George
E
Paveley,
a
practising
medical
doctor,
failed
to
file
income
tax
returns
for
the
taxation
years
1970,
1971
and
1972,
notwithstanding
formal
demands
having
been
made
of
him
that
he
file
the
returns
and
the
fact
that
he
was
convicted
of
failing
to
file
the
1970
and
1971
returns
and
paid
the
fines
assessed
in
this
regard.
In
addition,
Robert
Williams,
who
was
in
1973
Chief
of
Verifications
and
Collection
Branch,
Department
of
National
Revenue,
Regina
Taxation
District
testified
that
on
September
25,
1973
he
went
to
see
the
Respondent
in
his
office
and
discussed
at
length
the
Respondent’s
failure
to
file
the
1970,
1971
and
1972
income
tax
returns.
The
Respondent
at
that
time
informed
Mr
Williams
he
would
file
the
returns
not
later
than
the
date
agreed
upon,
but
the
returns
were
not
forthcoming.
2.
The
Respondent’s
problems
with
the
Department
of
National
Revenue
did
not
start
in
1970.
He
was
assessed
and
reassessed
for
the
taxation
years
1967
to
1969
(both
inclusive)
and
the
last
return
he
filed
was
in
1969.
In
January,
1971
the
assessments
owing
totalled
$11,570.00.
The
Department
of
National
Revenue
saw
fit
to
take
action
to
attach
moneys
due
to
the
accused
from
the
Medical
Care
Insurance
Commission
and
an
agreement
was
reached
whereby
a
trustee
was
to
receive
the
moneys
due
and
accruing
due
from
that
source
and
divide
them
between
the
Department
of
National
Revenue
and
the
Bank
of
Montreal,
to
which
the
accused
was
also
heavily
indebted.
It
appears
that
some
$17,000.00
was
eventually
paid
to
the
Department
of
National
Revenue
in
this
way
and
that
this
met
the
accused's
indebtedness
up
to
January
1,
1970.
3.
it
was
admitted
on
behalf
of
the
Respondent
at
trial
that
the
total
taxable
income
of
the
Respondent
during
the
relevant
period
was
the
amount
set
out
in
the
Information.
4.
The
informant,
an
Officer
of
the
Department
of
National
Revenue,
testified
that
he
had
prepared
schedules
of
income
and
expenses
of
the
Respondent
for
the
1970,
1971
and
1972
taxation
years,
and
he
produced
such
schedules
at
trial.
To
prepare
the
schedules
it
was
necessary
for
the
Informant
to
spend
many
hours
checking
the
files
of
Saskatchewan
Medical
Care
Insurance
Commission,
cancelled
cheques
and
payment
lists
and
records
of
the
Respondent.
Utilization
fees
were
determined
from
books
seized
from
the
Respondent’s
office
as
were
sundry
items
of
income.
Expenses
were
determined
from
a
summary
of
the
Respondent’s
expense
journal
and
cross-checking
banking
transactions.
The
Informant
also
testified
that
it
was
necessary
for
him
to
contact
third
parties,
such
as
the
jockey
clubs
in
Regina
and
in
Winnipeg,
because
the
Respondent
was
involved
in
horse
racing.
5.
The
Crown
conceded
that
there
had
been
no
subterfuge
nor
was
there
any
scheme
or
device
to
mislead
the
taxation
officials
nor
any
suggestion
of
falsification
or
records
but
simply
a
deliberate
failure
to
file.
There
was
was
no
doubt
that
the
Respondent
acted
wilfully
because
he
had
ample
warning
and
offered
no
explanation
for
ignoring
all
requests
to
file
the
aforesaid
income
tax
returns.
The
question
posed
in
the
appeal
was:
Did
I
err
in
law
in
concluding
that
the
wilful
refusal
of
the
Respondent
to
file
income
tax
returns,
for
the
taxation
years
1970,
1971
and
1972,
as
required
by
the
Income
Tax
Act,
RSC
1952,
Chapter
148,
and
amendments
thereto,
did
not
constitute
wilful
evasion
of
payment
of
taxes
imposed
by
the
said
Act
on
unreported
taxable
income
of
the
Respondent
during
the
said
years
in
the
amount
of
$33,053.06?
MacDonald,
J
accepted
the
decision
of
McLellan,
Co
Co
J
in
Regina
v
Baker
(1973),
26
CRNS
285;
16
CCC
(2d)
126;
45
DLR
(3d)
247;
6
NSR
(2d)
38,
and
answered
“no”
to
the
question.
Like
the
learned
judge
I
am
in
substantial
agreement
with
the
reasoning
and
conclusions
of
that
case.
References
to
cases,
lexicons
and
dictionaries
show
a
range
of
meanings
for
“wilfully”
from
“intentionally”
to
“with
evil
intention”.
Meanings
for
“evade”
go
from
“avoidance”
to
“escape
by
artifice”.
To
apply
the
rule
using
the
plain
or
ordinary
meaning
of
the
words
provides
a
choice
of
answers.
Subsection
150(1)
of
the
Act
requires
that
a
return
shall
be
made
for
the
income
of
each
year
for
which
tax
is
payable.
Section
162
provides
a
penalty
for
failure
to
do
so.
Section
163
provides
heavier
penalties
for:
163.
(1)
Every
person
who
wilfully
attempts
to
evade
payment
of
the
tax
payable
by
him
.
.
.
by
failing
to
file
a
return
of
income
as
and
when
required
by
subsection
150(1)
.
.
.
Paragraph
239(1
)(d),
as
above
set
out,
makes
wilful
evasion
of
payment
an
offence
punishable
by
fine
and
imprisonment.
It
is
under
this
latter
section,
of
course,
that
the
present
proceedings
are
taken.
Subsection
246(1)
provides
that
where
the
Treasury
Board
decides
that
the
main
purpose
of
a
transaction
was
improper
avoidance
or
reduction
of
taxes
it
may
give
directions
to
counteract
it.
Viewing
paragraph
239(1)(d)
in
the
context
of
the
other
provisions
of
the
Act,
and
taking
note
that
the
provisions
of
the
section
are
penal,
it
would
seem
to
me
that
to
fall
within
the
section
would
require
a
scheme
or
artifice
with
intent
to
deceive.
The
facts
in
the
case
as
stated
makes
it
clear
that
such
is
not
the
case
here.
The
appeal
is
dismissed.
Brownridge,
JA:—The
facts
of
this
case
are
set
out
in
the
judgment
of
my
brother
Woods
and
I
need
not
repeat
them.
However,
I
should
like
to
refer
to
the
reasons
given
by
Bence,
JMC
in
paragraph
6
of
the
stated
case:
6.
The
matter
of
the
guilt
or
innocence
of
the
Respondent
appeared
to
me
to
be
based
on
the
answer
to
the
simple
question
of
whether
wilful
refusal
to
file
income
tax
returns
constituted
wilful
evasion
of
payment
of
taxes
imposed
by
the
Income
Tax
Act.
I
considered
the
dictionary
definitions
of
the
meaning
of
the
word
“evade”
and
conflicting
judicial
decisions
involving
the
same
question
and
concluded
that
the
word
“evade”
is
capable
of
being
used
in
two
senses,
one
of
which
suggests
underhanded
dealing
and
the
other
nothing
more
than
the
intentional
avoidance
of
something
disagreeable,
and
that
In
penal
statutes
it
is
the
first
of
these
two
meanings
in
which
the
word
is
generally
used
and
if
not,
there
is
doubt
as
to
which
meaning
was
intended.
I
concluded
that
in
the
penal
provision
any
such
doubt
must
be
resolved
in
favour
of
the
accused
and
I
therefore
acquitted
the
Respondent.
On
the
basis
of
the
decision
in
Regina
v
Baker
(1973),
26
CRNS
285;
16
CCC
(2d)
126;
45
DLR
(3d)
247;
6
NSR
(2d)
38,
the
learned
judge
of
the
Magistrates’
Court
did
not
err
in
law
in
acquitting
the
respondent
in
this
case.
The
real
problem,
however,
in
answering
the
question
posed
by
the
stated
case
is
whether
the
interpretation
placed
on
the
word
“evade”
by
the
Baker
case,
that
is,
to
‘‘avoid
by
craft,
stratagem
or
artifice’,
should
be
approved
and
adopted.
With
the
greatest
respect
I
am
not
prepared
to
give
unqualified
approval
to
that
decision.
!
am
not
satisfied,
for
example,
that
there
must
be
an
attempt
on
the
part
of
the
respondent
to
conceal
his
income
and,
unless
that
is
found,
then
his
reasons
for
failing
to
file
returns
are
not
material.
Likewise,
I
am
not
persuaded
that
there
is
no
such
thing
as
a
temporary
evasion.
It
may
well
be,
as
counsel
for
the
appellant
argued,
that
the
deliberate
failure
or
refusal
to
file
income
tax
returns
as
and
when
required
is
itself
a
crude
artifice
or
stratagem
to
attempt
to
evade
the
payment
of
taxes,
even
temporarily.
If
this
is
so,
then
the
reasons
for
failing
to
file
returns
are
not
only
relevant
but
vital.
In
Thistle
v
The
Queen,
[1974]
CTC
798;
74
DTC
6632
(Ont),
Grossberg,
Co
Ct
J
found
(p
799
[6633]):
The
accused
deliberately
conceived
and
planned
his
failure
to
file
returns
to
refrain
and
avoid
paying
income
taxes
and
to
evade
the
required
yearly
payments.
I
am
unable
to
accept
the
contention
that
there
was
no
evasion
with
paragraph
239(1
)(d).
Again
in
Regina
v
Greer
(1973),
13
CCC
(2d)
318
(Ont),
Marshman.
Prov
J
found
the
accused
guilty
of
wilfully
evading
the
payment
of
taxes
contrary
to
paragraph
239(1
)(d)
of
the
Income
Tax
Act,
SC
1970-71-72,
c
63,
notwithstanding
the
evidence
of
the
accused
that
his
reason
for
failing
to
file
returns
was
that
he
did
not
believe
that
he
was
taxable.
The
Court
found
such
a
belief
to
be
unreasonable
under
the
circumstances.
On
the
hearing,
I
drew
to
the
attention
of
counsel
the
provisions
of
section
163
of
the
Income
Tax
Act
which
says:
163.
(1)
Every
person
who
wilfully
attempts
to
evade
payment
of
the
tax
payable
by
him
under
this
Part
by
failing
to
file
a
return
of
income
as
and
when
required
by
subsection
150(1)
is
liable
to
a
penalty
of
50%
of
the
amount
of
the
tax
sought
to
be
evaded.
(The
italics
are
mine.)
And
also
to
the
provisions
of
subsection
239(3)
which
reads:
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
J,
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
italics
are
mine.)
Under
section
163
it
is
an
offence
to
wilfully
attempt
to
evade
payment
of
tax
by
failing
to
file
a
return
as
and
when
required.
Why
should
the
word
“evade”
as
used
in
paragraph
239(1
)(d)
bear
a
different
meaning
than
the
same
word
as
used
in
subsection
163(1)?
And
yet,
as
pointed
out
in
Regina
v
Baker
(supra)
at
page
132,
the
Department
of
National
Revenue
itself
has
accepted
the
definition
which
was
adopted
by
the
Court
in
that
case.
In
my
opinion
“wilfully”
should
be
interpreted
as
“with
an
evil
intention”:
Regina
v
Miller,
[1944]
1
WWR
415
at
417;
81
CCC
110;
[1944]
1
DLR
802
(Sask),
so
that
the
question
in
this
case
becomes
not,
was
the
wilful
refusal
to
file
income
tax
returns
as
required
by
the
Act
“evasion”
under
paragraph
239(1
)(d),
but
rather:
Did
the
respondent
in
wilfully
refusing
to
file
income
tax
returns,
as
and
when
required,
do
so
with
the
intention
of
evading
or
attempting
to
evade
the
payment
of
taxes?
If
the
answer
to
that
question
is
either
“no”
or
If
the
issue
cannot
be
resolved
beyond
a
reasonable
doubt,
then
the
respondent
is
entitled
to
an
acquittal.
But
if
the
question
is
answered
in
the
affirmative
there
should
be
a
conviction
even
if
there
is
no
intention
to
deceive
within
the
meaning
of
Regina
v
Baker.
However,
because
of
the
doubt
which
he
expressed
and
which,
in
my
opinion,
Is
well
founded,
!
agree
that
the
respondent
must
be
given
the
benefit
of
that
doubt.
The
appeal
is
dismissed.
Bayda,
JA:—The
charge
and
facts
relating
to
this
appeal
by
way
of
stated
case
are
set
forth
in
the
judgment
of
my
brother
Woods.
In
addition,
the
judgment
of
my
brother
Brownridge
quotes
paragraph
6
of
the
stated
case,
in
which
the
learned
judge
of
the
Magistrates’
Court
detailed
his
reasons
for
the
disposition
he
made.
The
material
part
of
paragraph
239(1
)(d)
of
the
Income
Tax
Act,
SC
1970-71-72,
c
63,
under
which
the
respondent
was
charged
is
as
follows:
239.
(1)
Every
person
who
has
(d)
wilfully,
in
any
manner,
evaded
.
.
.
payment
of
taxes
imposed
by
this
Act
.
.
.
is
guilty
of
an
offence
.
.
.
The
question
posed
is
as
follows:
Did
I
err
in
law
in
concluding
that
the
wilful
refusal
of
the
Respondent
to
file
income
tax
returns,
for
the
taxation
years
1970,
1971
and
1972,
as
required
by
the
Income
Tax
Act,
RSC
1952,
Chapter
148,
and
amendmenis
thereto,
did
not
constitute
wilful
evasion
of
payment
of
taxes
imposed
by
the
said
Act
on
unreported
taxable
income
of
the
Respondent
during
the
said
years
In
the
amount
of
$33,053.06?
The
trial
judge
concluded
that
for
there
to
be
an
evasion
of
payment
of
taxes
there
must
be
present
an
"underhanded
dealing".
(It
is
common
ground
that
this
is
simply
another
way
of
describing
an
artifice
or
scheme.)
The
wrongdoing
proved
against
the
respondent
was
a
“wilful
refusal”
to
file
his
1970,
1971
and
1972
income
tax
returns.
The
trial
judge
found
that
such
a
wrongful
act,
or,
more
precisely,
such
a
wrongful
omission,
ought
not
be
classified
as
an
underhanded
dealing
and
thus
acquitted
the
respondent.
In
arriving
at
his
decision
he
appears
to
have
been
influenced
by
Regina
v
Baker
(1973),
26
CRNS
285;
16
CCC
(2d)
126;
45
DLR
(3d)
247;
6
NSR
(2d)
38.
The
learned
chambers
judge
who
heard
the
appeal
in
the
Court
of
Queen's
Bench
[[1975]
WWD
177]
agreed
with
the
reasoning
in
Regina
v
Baker
and
dismissed
the
appeal.
The
Crown
has
now
appealed
to
this
Court.
In
argument
before
us
counsel
dwelt
considerably
on
whether
there
should
or
should
not
be
proof
of
an
artifice
or
scheme
for
a
conviction
to
take
place
under
paragraph
239(1)(d)
of
the
Act.
This
approach
hinges
upon
the
interpretation
to
be
placed
upon
the
word
“evaded"
contained
in
that
subsection.
Both
counsel
also
argued
the
issue
from
another
standpoint:
What
proof
must
there
be
of
the
necessary
mens
rea
for
a
conviction
to
take
place,
and
particularly,
is
proof
of
the
“wilful
refusal”
to
file
tax
returns
alone
sufficient
proof
of
mens
rea
or
must
there
be
something
more?
This
latter
approach
does
not
isolate
the
word
“evade”
and
place
emphasis
on
its
construction
as
does
the
first
approach,
but
instead
recognizes
the
use
of
the
word
“wilfully”
in
relation
to
a
prohibited
act
and
concentrates
on
the
consequences
which
flow
from
the
conjunctive
use
of
these
two
words,
“wilfully
evaded”.
The
approach
does
not
involve
drawing
nice
distinctions
between
the
different
shades
of
meaning
of
the
word
“evade”.
In
my
respectful
view
the
proper
approach
to
determine
the
answer
to
the
question
posed
is
the
second
approach.
The
Crown
and
respondent
both
agree
that
for
a
conviction
to
take
place
there
must
be
proof
of
two
ingredients:
first,
the
“manner”
through
which
the
evasion
was
accomplished
(the
actus
reus)
and
second,
the
intention
to
accomplish
an
evasion
of
payment
of
taxes
in
the
sense
of
accomplishing
something
forbidden
by
or
in
defiance
of
the
law
(mens
rea).
Learned
counsel
for
the
Crown
submits
that
where
the
“manner”
is
the
wilful
refusal
to
file
returns,
as
it
is
here,
the
proof
of
the
“manner”
is
proof
not
only
of
the
actus
reus
but
also
of
the
mens
rea.
The
Crown,
he
submits,
need
prove
nothing
moie.
He
argues
that
upon
proof
of
such
wilful
refusal
to
file
returns,
the
Court
is
bound
in
law
to
infer
that
the
accused
intended
to
evade
payment
of
his
taxes
for
that
is
the
natural
and
probable
consequence
of
a
wilful
refusal
to
file
returns.
He
asks:
‘‘What
other
reason
could
the
accused
possibly
have
for
refusuing
to
file
his
returns?”
Learned
counsel
for
the
respondent,
on
the
other
hand,
submits
that
the
Court,
to
decide
whether
the
accused
intended
to
evade
payment
of
his
taxes,
must
have
reference
to
all
the
evidence
and
should
draw
such
inferences
from
the
evidence
as
appear
proper
in
the
circumstances.
He
asserts
that
in
certain
situations
the
court
may
draw,
from
the
fact
of
a
wilful
refusal
to
file
returns,
an
inference
of
intention
to
evade
payment
of
taxes
but
it
is
always
up
to
the
trier
of
fact
to
decide
whether
in
the
particular
circumstances
such
an
inference
is
warranted.
In
the
present
case,
he
argues,
the
trier
of
fact
chose
not
to
draw
the
inference
and
that
must
end
the
matter.
The
submission
of
the
Crown
brings
into
sharp
focus
the
distinction
referred
to
by
Ritchie,
J
in
Regina
v
George,
34
CR
1;
[1960]
SCR
871,
which
must
be
borne
in
mind
when
dealing
with
the
issue
of
mens
rea.
He
said
at
page
890:
In
considering
the
question
of
mens
rea,
a
distinction
is
to
be
drawn
between
“intention”
as
applied
to
acts
done
to
achieve
an
immediate
end
on
the
one
hand
and
acts
done
with
the
specific
and
ulterior
motive
and
intention
of
furthering
or
achieving
an
illegal
object
on
the
other
hand.
Illegal
acts
of
the
former
kind
are
done
“intentionally”
in
the
sense
that
they
are
not
done
by
accident
or
through
honest
mistake,
but
acts
of
the
latter
kind
are
the
product
of
preconception
and
are
deliberate
steps
taken
towards
an
illegal
goal.
The
former
acts
may
be
purely
physical
products
of
momentary
passion,
whereas
the
latter
involve
the
mental
process
of
formulating
a
specific
intent.
Is
the
illegal
act
under
consideration
in
the
present
case
of
the
first
class
mentioned
by
Ritchie,
J
or
the
second
class?
If
it
is
of
the
kind
where
to
simply
describe
the
behaviour
is
to
describe
the
behaviour
as
intentional,
then
It
is
of
the
first
class.
In
a
case
of
assault,
for
example,
evidence
establishing
that
A
hit
B
is
really
evidence
establishing
that
A
hit
B
intentionally
(in
the
sense
that
it
was
not
done
by
accident
or
honest
mistake):
Regina
v
George
(supra).
On
the
other
hand
if
the
illegal
act
under
consideration
is
of
a
kind
which
requires
conduct
carried
out
with
a
particular
purpose,
then
it
is
of
the
second
class.
In
a
case
of
murder,
for
example,
to
say
that
A
pulled
the
trigger
of
a
gun
and
killed
B
is
not
to
say
that
A
murdered
B.
It
is
necessary
to
prove
that
A
pulled
the
trigger
with
a
particular
purpose—with
a
particular
intent
(eg,
the
intent
to
kill).
The
offence
contemplated
by
the
subsection
under
consideration
is
the
wilful
evasion
of
payment
of
taxes.
There
is
a
mass
of
authorities
defining
the
terms
“wilful”
and
“wilfully”,
as
used
in
various
contexts,
but
in
my
research
I
was
unable
to
find
any
authority
which
defines
the
expression
“wilfully
evaded”
or
“wilful
evasion”
or,
apart
from
Regina
v
Sumarah,
10
CRNS
169;
[1970]
5
CCC
317;
70
DTC
6164
(NS),
any
authority
which
defines
“wilfully”
where
it
is
used
in
conjunction
with
the
word
“evaded”.
In
Sumarah,
O’Hearn,
Co
Ct
J
found
that
the
word
“wilfully”
where
it
is
used
in
paragraph
132(1)(d)
of
the
income
Tax
Act,
RSC
1952,
c
148
(the
predecessor
of
the
present
paragraph
239(1
)(d))
“is
the
equivalent
of
the
phrase
‘with
intent
to
do
so’
(p
6168).
To
appreciate
the
significance
of
the
use
of
the
word
“wilfully”
when
used
in
relation
to
a
statutory
prohibition,
it
is
helpful
to
consider
and
pay
heed
to
the
following
observation
made
by
Brett,
J
in
Regina
v
Prince
(1875),
LR
2
CCR
154
(of
no
less
value
by
reason
of
the
fact
that
it
appears
in
a
dissenting
judgment
or
the
fact
that
it
appears
in
a
nineteenth
century
decision)
at
page
161:
“Wilfully”
is
more
generally
applied
when
the
prohibited
acts
are
in
their
natural
consequences
not
necessarily
or
very
probably
noxious
to
the
public
interest,
or
to
individuals;
so
that
an
evil
mind
is
not
the
natural
inference
or
consequence
to
be
drawn
from
the
doing
of
the
acts.
The
presence
of
the
word
requires
somewhat
more
evidence
on
the
part
of
the
prosecution
to
make
out
a
prima
facie
case,
than
evidence
that
the
prisoner
did
the
prohibited
acts.
Grimmer,
J,
speaking
for
the
New
Brunswick
Supreme
Court,
Appeal
Division,
in
Rex
v
Griffin,
63
CCC
286;
[1935]
2
DLR
503;
9
MPR
84,
in
construing
the
word
“wilfully”
in
the
context
of
section
167
(the
section
dealing
with
the
wilful
obstruction
of
a
peace
officer)
of
the
Criminal
Code,
RSC
1927,
c
36,
said
at
page
290:
.
.
.
“wilful”
imports
design,
intention
and
purpose
and
that
when
applied
to
the
intent
with
which
an
act
Is
done
implies
a
purpose
or
willingness
to
commit
the
act.
This
also
applies
when
it
is
used
in
criminal
or
penal
statutes
or
criminal
law
in
respect
to
a
violation
of
which
it
has
been
said
the
word
“wilfully”
has
an
understood
and
accepted,
unrestricted
or
well
defined
meaning
and
is
to
be
given
some
force,
implying
as
it
does
a
dellberate
purpose
to
accomplish
something
forbidden,
a
determination
to
execute
one’s
own
will
in
spite
of
and
in
defiance
of
law.
In
Rex
v
Duggan
(1906),
16
Man
R
440;
12
CCC
147;
4
WLR
481,
the
Manitoba
Court
of
Appeal
considered
the
meaning
of
the
word
“wilfully”
in
relation
to
an
election
offence.
Richards,
J
A
at
page
160
stated:
if
the
word
“wilfully”
only
meant
“voluntarily”
or
“knowingly”
the
argument
would
perhaps
have
more
substance.
But
I
think
the
word,
when
used
as
a
part
of
the
definition
of
a
crime,
means
more
than
that.
Its
true
meaning
in
such
a
case
seems
to
me
to
be
that
given
it
by
Mr
Justice
Wuriele
In
Ex
parte
O’Shaughnessy
(1904),
13
Que
KB
178;
10
RLNS
38;
8
CCC
136,
at
the
top
of
page
139.
The
learned
Judge
says
there:
“Wilfully
means
not
merely
to
commit
an
act
voluntarily,
but
to
commit
it
purposely
with
an
evil
intention,
or
in
other
words
it
means
to
do
so
deliberately,
intentionally
and
corruptly
and
without
any
justifiable
excuse.”
The
word
“wilfully”,
as
used
in
the
subsection
under
consideration,
carries
a
distinct
connotation
of
deliberate
purpose
and
ulterior
motive.
To
ascribe
to
the
word
a
meaning
which
negates
or
overlooks
that
purpose
or
motive
is
to
dilute
the
meaning
of
the
word
to
a
point
where
its
use
is
rendered
completely
unnecessary.
I
have
no
hesitation
in
concluding
that
the
offence
with
which
the
appellant
is
charged
falls
into
the
second
class
of
offence
mentioned
by
Ritchie,
J.
It
follows
then
that
for
a
conviction
to
take
place
under
paragraph
239(1)(d)
of
the
Act
there
must
be
proof
of
the
actus
reus,
the
“manner”,
to
use
the
word
of
the
statute,
in
which
the
alleged
offence
was
committed,
and
also
proof
of
a
specific
intent,
that
is
to
say,
proof
that
the
act
which
constitutes
the
“manner”
was
done
with
a
particular
purpose—
the
purpose
of
evading
the
payment
of
tax.
(I
use
the
term
“specific
Intent”
in
the
sense
in
which
the
courts
generally
have
used
the
term
and
not
in
the
narrower,
and
perhaps
more
precise,
sense
in
which
some
academic
writers
have
chosen
to
use
the
term.)
The
Crown’s
submission,
as
I
understand
it,
is
that
a
finding
that
the
offence
is
of
the
second
class—one
requiring
specific
intent—
presents
no
particular
problem
in
this
case.
It
is
submitted
that
where
the
“manner”
of
committing
the
offence
is
such
that
its
natural
consequence
produces
a
result
certain,
the
Court
must
infer,
from
the
“manner”
of
committing
the
act,
a
specific
intention
to
produce
that
result.
Here
the
“manner”
is
one
of
wilful
refusal
to
file
returns.
Its
natural
consequence,
it
is
said,
produces
a
result
certain,
namely,
evasion
of
payment
of
tax.
It
follows,
so
it
is
argued,
that
the
Court
must
draw
the
necessary
inference
of
a
specific
intent
to
accomplish
an
evasion
of
tax.
With
respect,
that
appears
not
to
be
the
law.
This
Court,
speaking
through
Culliton,
JA
(as
he
then
was)
in
Regina
v
Patrygura
(1960),
129
CCC
333,
adopted
(at
p
335)
the
principles
stated
by
Goddard,
CJ
in
Rex
v
Steane,
[1947]
KB
997
at
1004;
32
Cr
App
R
61;
[1947]
1
All
ER
813,
as
follows:
The
important
thing
to
notice
in
this
respect
is
that
where
an
intent
is
charged
in
the
indictment,
the
burden
of
proving
that
intent
remains
throughout
on
the
prosecution.
No
doubt,
if
the
prosecution
prove
an
act
the
natural
consequence
of
which
would
be
a
certain
result
and
no
evidence
or
explanation
is
given,
then
a
jury
may,
on
a
proper
direction,
find
that
the
prisoner
is
guilty
of
doing
the
act
with
the
intent
alleged,
but
if
on
the
totality
of
the
evidence
there
is
room
for
more
than
one
view
as
to
the
Intent
of
the
prisoner,
the
jury
should
be
directed
that
it
is
for
the
prosecution
to
prove
the
intent
to
the
jury’s
satisfaction,
and
if,
on
a
review
of
the
whole
evidence,
they
either
think
that
the
intent
did
not
exist
or
they
are
left
in
doubt
as
to
the
intent,
the
prisoner
is
enitled
to
be
acquitted.
(The
italics
are
mine.
By
adopting
those
principles
this
Court
expressed
itself
unequivocally
that
in
those
cases
where
a
particular
purpose
or
a
specific
intent
is
an
essential
element
of
the
offence,
then
proof
of
the
act
the
natural
consequence
of
which
would
be
a
certain
result
and
no
explanation
is
given,
entitles,
but
does
not
bind,
the
court
hearing
the
matter
to
find
the
accused
guilty
of
doing
the
act
with
the
necessary
intent.
Lord
Denning
in
Hosegood
v
Hosegood
(1950),
66
TLR
735
at
738,
in
a
civil
case,
put
it
this
way:
When
people
say
that
a
man
must
be
taken
to
intend
the
natural
consequences
of
his
acts,
they
fall
Into
error:
there
is
no
“must”
about
#;
it
is
only
"may”.
The
presumption
of
intention
is
not
a
proposition
of
law
but
a
proposition
of
ordinary
good
sense.
It
means
this:
that,
as
a
man
is
usually
able
to
foresee
what
are
the
natural
consequences
of
his
acts,
so
it
is,
as
a
rule,
reasonable
to
infer
that
he
did
foresee
them
and
Intend
them.
But,
while
that
is
an
inference
which
may
be
drawn,
it
is
not
one
which
must
be
drawn.
If
on
all
the
facts
of
the
case
it
is
not
the
correct
inference,
then
it
should
not
be
drawn.
See
also
the
Ontario
Court
of
Appeal
decisions
in
Regina
v
Glannotti,
23
CR
259;
[1956]
OR
349;
115
CCC
203;
Regina
v
Ortt,
6
CRNS
233;
[1969]
1
OR
461;
[1970]
1
CCC
223;
11
Cr
LQ
328;
Regina
v
Mulligan
(1974),
26
CRNS
179;
18
CCC
(2d)
270,
and
the
British
Columbia
Court
of
Appeal
decision
in
Regina
v
Crawford
(1970),
1
CCC
(2d)
515.
It
is
plain,
therefore,
that
upon
proof
of
a
“wilful
refusal”
to
file
an
income
tax
return—the
“manner”
in
which
it
is
alleged
the
offence
under
paragraph
239(1)(d)
of
the
Income
Tax
Act
is
committed—the
Court
may,
not
must,
infer
that
the
accused
committed
the
act
with
the
intent
to
evade
payment
of
taxes.
If
on
the
whole
evidence
the
Court
reaches
the
conclusion
that
it
is
proper
to
draw
that
inference,
then
it
may
do
so.
If
it
reaches
the
conclusion
that
it
is
not
proper
to
do
so,
or
is
left
in
reasonable
doubt,
then
it
should
not
draw
the
inference.
Learned
counsel
for
the
Crown
laid
stress
upon
the
fact
that
here
we
are
dealing
with
a
“wilful
refusal”
to
file
tax
returns
and
not
a
mere
"failure”
to
file
returns.
That,
he
submits,
makes
a
difference
as
to
whether
the
necessary
inference
of
intent
must
or
only
may
be
drawn
from
the
actus
reus.
With
respect
I
am
not
able
to
give
effect
to
that
argument.
The
expression
“wilful
refusal”
when
used
in
relation
to
the
phrase
“to
file
income
tax
returns”
is
nothing
more
than
part
of
the
description
of
the
actus
reus.
It
is
not
a
declaration
of
the
presence
of
the
required
intent.
To
say
that
A
“wilfully”
pulled
the
trigger
of
a
gun
and
killed
B
may
eliminate
the
possibility
of
mistake
or
accident
in
pulling
the
trigger
but
it
is
not
to
say
that
A
murdered
B.
Even
if
the
trigger
were
“wilfully”
pulled
it
would
still
be
necessary
to
say
that
A
pulled
the
trigger
with
the
particular
purpose
or
intent
of,
for
example,
killing
B,
for
there
to
be
a
murder.
The
principle
of
law
which
states
that
an
inference
of
intent
may,
and
not
must,
be
drawn
from
the
act
in
question
is
equally
applicable
to
an
act
consisting
of
a
“wilful
refusal”
to
file
a
return
as
to
one
consisting
of
a
simple
“failure"
to
file
a
return.
That,
of
course,
is
not
to
say
that
it
may
not
be
easier,
in
the
former
case
than
in
the
latter,
to
draw
the
necessary
inference
of
intent.
It
follows
from
what
I
have
said
to
this
point
that
I
am
not
prepared
to
go
so
far
as
to
say
that
only
in
those
cases
where
there
is
an
artifice
or
a
scheme
can
there
be
a
conviction
for
evasion
under
this
subsection.
The
presence
of
an
artifice
or
scheme
would
tend
to
make
it
easier
to
draw
the
necessary
inference
of
intent
to
evade
payment
of
taxes,
but
in
my
respectful
view
it
cannot
be
said
that
the
existence
of
an
artifice
or
scheme
is
a
necessary
element
of
the
offence
created
by
this
subsection.
Where
the
necessary
intent
is
present,
then
the
"manner"
in
which
the
intent
is
carried
out
is
not
important.
The
plain
words
of
the
subsection
specify
it
may
be
done
“in
any
manner”.
That
the
Act
does
not
contemplate
an
artifice
or
scheme
to
be
the
only
manner
in
which
an
“evasion”
may
be
accomplished
is
further
evidenced
by
subsection
163(1)
which
clearly
enacts
that
an
attempted
evasion
under
that
subsection
can
take
place
by
simply
"failing
to
file
a
return
of
income”.
To
the
extent
that
Regina
v
Baker
(supra)
holds
that
an
artifice
or
scheme
is
a
necessary
element
of
an
offence
under
paragraph
239(1)(d)
of
the
Act,
I
find,
with
respect,
that
it
does
not
correctly
state
the
law.
My
answer
to
the
question
posed
is
“No”.
I
give
that
answer
on
the
basis
that
a
plain
reading
of
the
question
requires
that
it
be
read
this
way:
Did
I
err
in
law
in
concluding
that
[proof
of]
the
wilful
refusal
of
the
Respondent
to
file
income
tax
returns
[the
actus
reus]
.
.
.
did
not
[by
itself]
constitute
[proof
of]
wilful
evasion
of
payment
of
taxes?
Were
I
to
read
the
question
this
way
(a
reading
suggested
by
the
trial
judge’s
reasons):
Did
I
err
in
law
in
concluding
that
the
wilful
refusal
of
the
Respondent
to
file
income
tax
returns
.
.
.
did
not
[by
reason
of
the
failure
to
prove
an
artifice
or
scheme]
constitute
a
wilful
evasion
of
payment
of
taxes?
I
would
have
answered
the
question
“Yes”.
It
is
hardly
necessary
to
add
that
an
appellate
court
in
an
appeal
by
way
of
stated
case
is
not
required
to
pass
upon
the
correctness
of
the
reasoning
used
by
the
judge
of
the
summary
conviction
court
in
arriving
at
his
ultimate
decision
but
only
upon
his
ultimate
decision.
Thus
it
is
possible
for
an
appellate
court
to
adopt
the
ultimate
decision
of
the
summary
conviction
court
but
at
the
same
time
not
adopt
entirely
or,
indeed,
reject
entirely
his
reasons
for
arriving
at
that
decision.
The
appeal
is
dismissed.
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