Judge
Grossberg
(orally):—It
will
not
assist
me
to
reserve
judgment
in
this
case.
It
is
better
if
I
now
give
my
decision
and
reasons
while
the
evidence
and
the
arguments
of
counsel
are
fresh
in
my
mind.
The
charge
against
the
accused,
as
set
out
in
the
information,
is
as
follows:
Between
the
1st
day
of
January
1967,
and
the
31st
day
of
December
1972,
at
the
Municipality
of
Metropolitan
Toronto,
in
the
judicial
district
of
York,
wilfully
did
evade
payment
of
taxes,
imposed
by
the
Income
Tax
Act
to
wit;
by
failing
to
report
income
in
the
sum
of
$144,312.08,
for
the
taxation
years
1967,
1968,
1969,
1970,
and
1971,
thereby
evading
payment
of
$47,587.32
in
taxes,
contrary
to
Section
239(1
)(d)
of
the
Income
Tax
Act.
The
accused
was
found
guilty
of
the
charge
by
the
Provincial
Judge
on
December
10,
1973.
The
penalty
imposed
was
a
fine
of
$35,000
or
2
years
in
jail.
An
appeal
was
taken
by
the
accused
to
this
Court,
both
as
to
conviction
and
penalty.
Counsel
for
the
Crown
and
counsel
for
the
accused
have
agreed
that
in
hearing
and
deciding
the
appeal,
by
way
of
trial
de
novo,
the
exhibits
filed
in
the
Provincial
Court,
and
the
evidence
of
the
witnesses
in
the
Provincial
Court,
be
the
evidence
for
the
trial
de
novo.
Paragraph
239(1
)(d),
including
the
penalty
provision,
is
as
follows:
239.
(1)
Every
person
who
has
(d)
wilfully,
in
any
manner,
evaded
or
attempted
to
evade,
compliance
with
this
Act
or
payment
of
taxes
imposed
by
this
Act,
.
.
.
is
guilty
of
an
offence
and,
in
addition
to
any
penalty
otherwise
provided,
is
liable
on
summary
conviction
to
(f)
a
fine
of
not
less
than
25%
and
not
more
than
double
the
amount
of
the
tax
that
was
sought
to
be
evaded,
or
(g)
both
the
fine
described
in
paragraph
(f)
and
imprisonment
for
a
term
not
exceeding
2
years.
Counsel
for
the
accused
does
not
in
this
Court,
submit
that
the
failure
of
the
accused
to
file
income
tax
returns
and
pay
income
tax
was
inadvertent.
On
the
evidence
it
is
clear
that
the
failure
to
file
such
returns
and
to
pay
income
tax
was
wilful.
I
have
no
hesitation
in
so
finding.
Counsel
for
the
accused
submitted,
firstly,
that
the
evidence
does
not
support
a
finding
that
the
accused
“evaded
or
attempted
to
evade”
compliance
with
the
Act
or
payment
of
income
taxes.
He
submitted,
secondly,
that
paragraph
(d)
of
subsection
239(1)
must
be
related
to
either
paragraph
(a),
(b)
or
(c)
of
subsection
239(1).
I
find
it
a
fact
that
the
Crown
has
proved
beyond
a
reasonable
doubt
that
the
accused
is
guilty
of
the
offence
as
charged.
I
find
on
the
totality
of
the
evidence
that
the
deliberate
failure
to
file
returns
and
to
pay
income
taxes
on
the
part
of
the
accused
was
a
cunning
scheme
and
was
conceived
in
evil
and
intended
deceit,
and
in
trickery,
and
in
subterfuge.
Counsel
for
the
accused
argued
that
ultimately
it
would
come
to
the
attention
of
the
Department
of
National
Revenue
that
the
accused
had
not
filed
returns
or
paid
taxes.
He
accordingly
argued
that
there
was
no
evasion.
I
cannot
accept
that
submission.
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
within
paragraph
239(1
)(d).
One
must
remind
himself
that
the
accused
in
this
case
is
manifestly
a
highly
sophisticated
person
in
relation
to
income
tax.
This
is
apparent
on
the
whole
of
the
evidence.
I
do
not
propose
to
relate
his
experiences
with
the
Department
and
all
that
has
happened
in
the
past.
The
evidence
indicates
that
he
is
a
knowledgeable
person
with
respect
to
the
requirements
of
filing
income
tax
returns
and
paying
income
taxes.
In
addition
he
has
a
responsible
position.
It
is
straining
credulity
to
believe
that
his
conduct
was
other
than
a
deliberate
and
wicked
scheme
to
evade
payment
of
taxes.
I
have
been
referred
to
R
v
Baker,
16
CCC
(2d)
126,
which
is
a
decision
of
His
Honour
Judge
McLellan,
of
the
County
Court,
of
District
No
4
in
Nova
Scotia.
It
has
many
times
been
said
that
each
case
is
authority
only
for
its
particular
facts.
Stare
decisis
requires
me
to
respect
that
decision,
but
I
am
not
bound
by
it.
With
the
utmost
deference
I
am
constrained
to
comment
I
have
found
it
to
be
a
surprising
decision
on
the
facts.
I
am
unable
to
say
that
I
would
have
come
to
the
same
conclusion
on
the
evidence
referred
to
in
the
report
of
the
case.
I
reject
the
contention
of
counsel
for
the
accused
that
there
should
not
be
a
conviction
under
paragraph
239(1)(d)
unless
one
can
find
that
there
be
a
class
of
act
referred
to
in
paragraph
239(1)(a),
(b)
or
(c).
I
find
support
for
that
conclusion
in
the
judgment
of
Mr
Justice
Lacourciére
in
the
case
of
R
v
Ross
Kidd
[74
DTC
6574].
I
was
handed
a
copy
of
the
reasons,
which
were
apparently
issued
on
October
25,
1974,
by
counsel
for
the
Crown.
At
page
5
of
the
reasons
[p
6575]
which
were
handed
to
me
Mr
Justice
Lacourcière,
in
my
submission,
indicates
that
evasion
is
not
limited
to
suppression
of
income
by
false
declaration,
or
falsification
of
books,
or
failure
to
record.
I
think
it
is
implied
in
those
words
that
paragraph
239(1)(d)
stands
by
itself,
and
I
would
so
hold.
In
my
view
the
case
of
Eldon
v
Reliable
Toy
Co
Ltd,
[1966]
1
OR
409,
referred
to
by
counsel
for
the
accused,
cannot
be
applied
to
section
239
of
the
Income
Tax
Act,
nor
can
it
be
applied
to
the
facts
of
the
case
I
have
to
decide.
I
now
turn
to
the
question
of
the
penalty.
Counsel
for
the
Crown
has
referred
me
to
A
v
Bertrand,
67
DTC
5245
at
5246,
and
to
M
F
Galloway
v
The
Queen,
[1968]
CTC
589
at
590-1;
69
DTC
5023
at
5025.
I
agree
with
the
factors
to
be
taken
into
account
which
are
referred
to
in
those
cases,
but
I
would
also
refer
to
a
research
study
by
William
B
Common,
QC
and
Professor
A
W
Mewett,
in
a
pamphlet
“The
Philosophy
of
Sentencing
and
the
Disparity
of
Sentences’’
which
was
published
by
the
Foundation
for
Legal
Research
in
Canada.
Chapter
6
deals
with
fines,
and
I
quote
and
adopt
what
is
said
there
with
regard
to
fines:
As
punishment
it
must
consist
in
a
deprivation
of
property
that
is
discernible
to
the
offender
and
is
appropriate
where
no
other
form
of
punishment,
such
as
the
deprivation
of
liberty
is
indicated.
A
fine
has
no
rehabili-
tive
or
corrective
aspects
and
its
use
consists
solely
in
the
punishment
and
deterrent
value.
It
is
therefore
necessary
that
the
fine
be
geared
to
the
offender’s
ability
to
pay.
It
should
be
sufficiently
heavy
to
be
discernible
to
the
offender
as
punishment,
but
not
so
heavy
as
to
amount
to
an
unjust
‘burden.
Particularly,
it
is
true
that
the
sentencing
tribunal
avoid,
where
possible,
inflicting
undue
punishment
upon
the
offender’s
family
and
dependents,
although
this
is
bound
to
some
extent
to
be
the
inevitable
side
effect
of
all
punishment.
The
Act
provides
a
fine
of
not
less
than
25%
and
not
more
than
double
the
amount
of
the
tax
that
was
sought
to
be
evaded,
or
both
fine
and
imprisonment
for
a
period
not
exceeding
2
years.
I
adopt
what
counsel
for
the
Crown
has
said
with
respect
to
the
elements
to
be
considered,
but
as
he
frankly
conceded
it
is
not
mentioned
in
those
elements
that
one
should
also
take
into
account
the
ability
of
an
accused
to
pay.
As
indicated
in
argument
I
can
understand
a
large
fine
against
a
person
of
wealth,
who
has
ample
means
and
assets,
and
even
the
maximum
fine
if
he
has
substantial
means,
and
where
it
would
cause
no
undue
hardship.
Unless
one
does
that,
it
would
be
giving
a
licence
to
evade
income
tax
and
refrain
from
filing
returns.
In
my
opinion
the
Provincial
Judge
has
erred
in
this
case
in
failing
to
give
sufficient
weight
that
the
payments
made
or
to
be
made,
by
the
accused
as
a
result
of
this
unfortunate
affair
to
the
Department
has
stripped
the
accused
of
his
assets,
and
his
future
financial
situation
is
mortgaged
for
a
considerable
period
of
time.
I
do
not
propose
to
reduce
the
fine
very
much.
I
must
keep
in
mind
the
formidable
submissions
counsel
for
the
Crown
has
urged.
Unless
the
fine
be
substantial,
encouragement
will
be
given
to
persons
to
refrain
from
filing
returns
and
keep
the
Department
unnecessarily
engaged
in
pursuit
of
such
persons,
and
then
having
to
make
a
5-
or
6-year
calculation
when
the
taxpayer’s
default
is
ascertained.
I
also
consider
that
one
must
take
into
account
in
this
case
the
public
interest,
the
repetition
of
offences,
justice
to
other
taxpayers,
the
necessity
to
have
the
law
respected,
and
the
degree
of
deliberation
that
existed
in
this
case.
All
of
these
matters
should
be
weighed
by
the
Court.
But
the
Court
should
not
crush
the
accused
and
his
family.
I
have
an
uneasy
feeling
that,
in
this
case,
the
effect
of
what
has
happened
has
been
to
impose
a
tremendous
financial
burden
on
the
accused.
In
my
view
an
appropriate
fine
in
this
case
would
be
$25,000.
I
propose
to
dismiss
the
appeal
as
to
conviction.
The
appeal
as
to
sentence
is
allowed.
The
fine
is
reduced
to
$25,000,
or
in
default
2
years
imprisonment.
There
will
be
no
costs
on
the
appeal.
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