Roberts, J:
1 The two accused appeared in this Court on June 2nd of this year, represented by Mr Sullivan (Mr McDermid appeared for the Crown) and at that time each of the accused pleaded guilty to three counts alleging a breach of paragraph 239(1)(a) of the Income Tax Act and one count alleging a breach of paragraph 239(1)(d) of the Income Tax Act. The matter was adjourned on that date until June 10th at 10:00 am, and after argument the matter was further adjourned until today for judgment.
2 The sole question to be determined with respect to the disposition of this matter is whether or not it is open to this Court to convict the accused of each and every one of the four counts contained in the Informations. Stated in another way, the question to be determined is whether or not the judgment of the Supreme Court of Canada in Regina v Kienapple, 15 C.C.C. (2d) 524, has any application to the case at bar.
3 In the case of Regina v. Lavoie, which was provided to me by Mr McDermid, reported in[1970] 5 C.C.C. 331, 73 W.W.R. 753, and[1970] C.T.C. 476, the appellant had been convicted by Hughes, JDC of six charges under paragraph 132(1)(a) of the [pre-1972] Income Tax Act, RSC 1952, c 148, and had been acquitted on one charge under paragraph 132(1)(d) of the Income Tax Act. The Attorney General of Canada appealed against the acquittal on the charge under paragraph 132(1)(d) and the Court of Appeal of Saskatchewan allowed the appeal and convicted the appellant on the charge under paragraph 132(1)(d) of the Act. Culliton, CJS in the course of his judgment dealt with the provisions of section 11 of the Criminal Code of Canada and the decision of the Supreme Court of Canada in Rex v Quon, 6 C.R. 160, [1948] S.C.R. 508, 92 C.C.C. 1, [1949] 1 D.L.R. 135. At page 335 of the report in [1970] 5 C.C.C. Culliton, CJS made the following statement:
The foregoing section, apart from some differences in wording, is similar to section 33 of the Interpretation Act, 1889 (UK), Chapter 63, which reads:
“Where an act or omission constitutes an offence under two or more Acts, or both under an Act and at common law ... the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but shall not be liable to be punished twice for the same offence.”
In interpreting the effect of this section of the English Interpretation Act, Humphreys, J, in Rex vs Thomas (1949), 33 Cr App R 200 at 204, said:“Mr Paget has argued that we ought so to read the section that the last word “offence” should be read as meaning “act”, and it was submitted that “act”, “cause” and “offence” all mean the same thing. In our view that is not correct. It is not the law that a person shall not be liable to be punished twice for the same act; no one has ever said so in any case, and the Interpretation Act does not say so. What the Act says is that a person “shall not be liable to be punished twice for the same offence”. Not only is it not the law, but it never has been the law, and that it is not the law was expressly decided in the highest criminal Court in the land then existing, the Court for the Consideration of Crown Cases Reserved, as far back as 1867, in Morris (1867), LR 1 C.C.R 90; 10 Cox CC 480.”
4 In the case of Regina v. Kienapple (supra), the Supreme Court of Canada dealt with the interpretation to be placed upon the provisions of section 11 of the Criminal Code of Canada as well as with a number of the authorities which were dealt with by Culliton, CJS in the case of Regina v. Lavoie. In the course of his judgment in Regina v. Kienapple, Laskin, J, as he then was, had this to say:
Humphreys, J, in Rex vs Thomas, supra insisted on a literal application of those concluding words, rejecting a textbook gloss on them as embracing “act” and “cause” as well as “offence” in the strict sense. I do not think that his illustration of successive successful prosecutions for assault and for manslaughter (after the assault victim dies), as shown in Rex vs Morris[1867] LRCCR 90, is a convincing support for reading section 33 with literal emphasis on its concluding words and no emphasis on its opening words ... without warranting a restrictive reading of the English section 33 and our section 11 ... That is not so in the case at bar ... I can not view section 11 as modifying the scope of res judicata, let alone the scope of pleas of autrefois as defined in sections 535 to 537 of the Criminal Code. The relevant inquiry so far as res judicata is concerned is whether the same cause or matter (rather than the same offence) is comprehended by two or more offences. Moreover, it can not be the case that if an accused is tried on several counts charging different offences, he is liable to be convicted and sentenced on each count, and yet if he was tried and convicted on one only he would be entitled to set up the defence of res judicata as a defence to other charges arising out of the same cause or matter.
5 It is my respectful opinion that the judgment of the Supreme Court of Canada in Regina v. Kienapple overrules the judgment of the Saskatchewan Court of Appeal in the case of Regina v. Lavoie, and applying the law as I understand it in Regina v. Kienapple to the case at bar I have come to the conclusion that I am able only to convict the accused on count one or, in the alternative, counts two, three and four.
6 The facts and circumstances of this case are precisely similar to those with which the Court was faced in the case of Regina v. Lavoie and I can do no better, I believe, than quote from the judgment of Hughes, JDC in the case of Regina v. Lavoie. At page 332 of the report in [1970] 5 C.C.C., the learned judge of the District Court had this to say:
There remains only a consideration of count number eight. The essence of that charge is the wilful evasion of the payment of taxes. The taxes, pay ment of which it is charged were wilfully evaded, are those that accrued or resulted from the income that was understated in the taxpayer's returns over the years for which I have just recorded convictions under paragraph 132(1)(a) of the Act. With respect to those convictions, the guilty intent found present was one to deceive and it must be abundantly clear that the deception was practised only with the view to evade the payment of taxes. How then can the taxpayer be punished also for an offence under paragraph 132(1)(d)? If that were to be possible then it seems to me that he would be punished twice for, in effect, the same thing. I am about to punish him for making a false and deceptive statement in his income tax returns by understating his total income for the purpose of wilfully evading the payment of taxes. I decline to convict and punish him on count eight for I construe the punishment that I will impose for the convictions on counts one, three, four, five, six and seven as, in effect, being for the same violation covered in count number eight. In arriving at this decision I am, I believe, following the rule stated by Kellock, J in Rex vs Quon, 6 C.R. 160, [1948] S.C.R. 508, 92 C.C.C. 1, [1949] 1 D.L.R. 135, and quoted on a number of occasions, the most recent of which was in the judgment of MacKay, JA of the Ontario Court of Appeal in Regina vs Siggins, [1960] O.R. 384, 127 C.C.C. 409; and32 C.R. 306.
7 Accordingly, I find each of the two accused guilty and convict them on count number one in each of the Informations but I decline to register a conviction against either of the accused on counts two, three and four in the Informations.
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