Regina v. Lucien Lavoie, [1970] CTC 476, [1970] DTC 6113

CULLITON, C.J.S.:—The respondent was charged in an information containing eight counts of offences under the Income Tax Act, R.S.C. 1952, c. 148. The first seven counts charged seven separate offences under Section 132(1) (a) of the Income Tax Act, and the eighth count charged an offence under Section 132(1) (d). After a trial before Carter, P.M., the respondent was acquitted on all counts. An appeal was taken, pursuant to Section 720 (substituted 1959, e. 41) of the Criminal Code, 1953-54, c. 51 by the Attorney- General of Canada to the District Court. A trial de novo was held ‘before Hughes, D.C.J., at the conclusion of which he convicted the respondent on six of the charges under Section 132(1) (a), but dismissed the charge under Section 132(1) (d).

Section 132(1) (a) and (d) of the Income Tax Act is as follows :

132. (1) Every person who has

(a) made, or participated in, assented to or acquiesced in the making of, false or deceptive statements in a return, certificate, statement or answer filed or made as required by or under this Act or a regulation,

(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 . . .

Count 1 in the information reads :

1. Unlawfully, between February 2nd, A.D. 1959, and March 21st, A.D. 1959, at the City of Saskatoon, did make false or deceptive statements in a return filed pursuant to the provisions of the Income Tax Act, R.S.C. 1952, c. 148 and amendments thereto, to wit, his 1958 T1 General Income Tax Return, by understating in the said return to an amount of approximately $7,306.44, the combined total income before deducting expenses for the year 1958 of himself and his father and then partner, Adrien Lavoie (now deceased) contrary to Section 132(1) (a) of the said Income Tax Act.

After amendments by the learned Judge of the District Court, counts 2 to 7 were in identical terms, apart from relating to different years and differing as to the amounts of understated income in each of such years. Count 8' reads as follows:

8. Unlawfully, between February 2nd, A.D. 1959 and November 18th, A.D. 1965 at the City of Saskatoon, did wilfully evade payment of taxes in the total amount of approximately $8,415.69 imposed by the Income Tax Act, R.S.C. 1952, c. 148 and amendments thereto contrary to Section 132(1) (d) of the said Income Tax Act.

The learned Judge of the District Court, in dismissing the charge under count 8, said, in part, as follows:

There remains only a consideration .of count number 8. The essence of that charge is the wilful evasion of the payment of taxes. The taxes, payment 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 Section 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 pay- ment of taxes. How then can the taxpayer be punished also for an offence under Section 132(1) (d)? If that were to be possible then it seems to me he would be punished twice for, in effect, the same thing. I am about to punish him for making a false or 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 8 for I construe the punishment that I will impose for the convictions on counts 1, 3, 4, 5, 6 and 7 as in effect being for the same violation covered in count number 8. In arriving at this decision I am, I believe, following the rule stated by Kellock, J. in Rex v. Quon, [1948] S.C.R. 508; 6 C.R. 160; 92 C.C.C. 1; [1949] 1 D.L.R. 135, affirming [1947] O.R. 856; 4 C.R. 385; 90 C.C.C. 28; [1948] 1 D.L.R. 710, and quoted on a number of occasions, the most recent .of which was, in the judgment of MacKay, J.A. of the Ontario Court of Appeal in Reg. v. Siggins, [1960] O.R. 284; 32 C.R. 306; 127 C.C.C. 409 (C.A.) . . . (Italics are mine.)

The Attorney-General of Canada has now, pursuant to Section 743 of the Criminal Code, appealed to this Court against the judgment of the learned Judge of the District Court, acquitting the respondent of the offence under Section 132(1) (d). The grounds of appeal are as follows:

i. . (1) That the learned Judge below having found in his judgment that the respondent understated the income of himself and his father, Adrien Lavoie, in 1958 by $3,907.87 (count #1), in 1960 by $38,964.58. (count #3), in 1961 by $5,231.21 (count #4), in 1962 by $6,423.23 (count #5), in 1963 by $3,526.60 (count #6), and the income of himself alone in 1964 by $7,095.87 (count #7), and having found the intent or mens rea to convict the said Lucien Lavoie, and having’ convicted him of said counts under Section 132(1) (a) of the Income Tax Act, R.S.C. 1952, c. 148, as set out in said judgment, and having found further in effect that said offences under Section 132(1) (a) were committed "for the purpose of wilfully evading the payment of taxes", or "with the view to evade the payment of taxes”, Erred In Law in not convicting the respondent of. wilfully evading payment of taxes (count #8).

(2) That the learned Judge below erred in law:

(a) In regarding the convictions of the respondent for making false statements in his income tax returns contrary to Section 132(1) (a) of the Income Tax Act (counts 1, 3, 4, 5, 6 and 7) as being, in effect, for wilfully evading payment of taxes as charged in count #8;

(b) in declining to convict the respondent because "I construe the punishment that I will impose for the convictions on counts 1, 3, 4, 5, 6 and 7 as in effect being for the same violation covered in count #8”;

(c). in applying the rule in Rex v. Quon [supra], followed in

Reg. v. Siggins [supra].

In my respectful view, the learned Judge of the District Court erred in law: (1) in holding that the offence’ charged in count 8 was the same as those charged in counts 1, 3, 4, », 6 and 7; and (2) in his interpretation and application of the judgment of the Supreme Court of Canada in Rex v. Quon (supra).

The judgment of the Supreme Court of Canada in Rex v. Quon was, in my opinion, correctly analyzed and explained by Roach, JA. in Rex v. Clark, [1951] O.R. 791; 13 C.R. 190; 101 C.C.C. 166 (C.A.) when he said at page 203 :

On behalf of Clark and Lachek it was argued that they should not have been convicted on count 1 and also on count 3 on the second trial, that to do so was to convict them twice for the same offence. In support of that argument their counsel relied on the judgment in Rex v. Quon [supra]. The judgment in that case does not support the argument. The facts in that case were as follows: The accused, while armed with a revolver, robbed one Sam Lun. Having been charged with that offence he pleaded guilty. He was also charged with and after a trial found guilty of the offence of having on his person a revolver contrary to s. 122 of the Criminal Code.

This Court quashed that conviction and an appeal by the Attorney-General to the Supreme Court of Canada was dismissed.

Section 122, as re-enacted by 1938, c. 44, s. 7, read as follows:

“Every one who has upon his person a rifle, shotgun, pistol, revolver or any firearm capable of being concealed upon the person while committing any criminal offence is guilty of an offence against this section and liable to imprisonment for a term not less than two years in addition to any penalty to which he may be sentenced for the first mentioned offence, and an offence against this section shall be punishable either on indictment or summary conviction in the same manner as the first mentioned offence.

(2) Such imprisonment shall be served after undergoing any term of imprisonment to which such person may be sentenced for the first mentioned offence."

The ratio of the decision in the Quon case, both in this Court and in the Supreme Court of Canada is that on a proper interpretation of the words “any criminal offence” as they appeared in s. 122, those words had a restricted meaning and did not include an offence of which an essential element was the possession of a firearm capable of being concealed upon the person. To give those words their ordinary exhaustive meaning would result in repugnancy to and inconsistencies with other sections of the Code.

It appears to me that the Supreme Court of Canada, in its interpretation of Section 122 of the then Code, did no more than give effect to the opinion expressed by Roach, J.A., in delivering the judgment of the Court of Appeal in that case, when he said at page 899:

In my opinion it is clear that the appellant has a complete defence to the second charge, but it is not the defence of res judicata. It is simply this, that the facts do not come within the offence created by s. 122.

The decision in Rex v. Quon (supra) is not to be construed as suggesting that Parliament may not, if it sees fit, constitute two separate offences out of the same act. I think Kellock, J. made this abundantly clear when he said at page 520 :

It is obvious of course that Parliament may, if it sees fit, constitute two separate offences out of the same act or omission or make part of an act or omission or one or more of a series of acts or omissions a separate offence additional to that constituted by the complete act or omission or the whole series.

Nor, in my opinion, does Section 11 of the Criminal Code assist the respondent. This section is as follows:

11. Where an act or omission is an offence under more than one Act of the Parliament of Canada, whether punishable by indictment or on summary conviction, a person who does. the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.

The foregoing section, apart from some differences in wording, is similar to Section 33 of the Interpretation Act, 1889, 52 & 53 Vict., c. 63, which reads:

33. 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, 1889, Humphreys, J., in Rex v. Thomas, [1950] K.B. 26; 33 Cr. App. R. 200 at 204; [1949] 2 All E.R. 662, 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 Reg. v. Morris (1867), L.R. 1 C.C.R. 90; 36 L.J.M.C. 84; 10 Cox C.C. 480.

In my view, Parliament, in enacting Section 132(1) (a) and (d), created two separate and very distinct offences. The fact that both offences may arise out of the same act or acts does not result in a person being convicted twice for the same offence. Parliament in its wisdom created these separate offences and the court must give effect thereto : Rex v. Clark (supra) ; see also Practice Note (1955), 20 C.R. 360.

I would allow the appeal and enter a conviction upon count 8. The matter will be referred: back to the learned Judge of the District Court for the imposition of the appropriate penalty.