Panton v. J. H. Spencer, [1917-27] CTC 104, [1920-1940] DTC 10

McKay, J.:—The information charged that the said respondent J. H. Spencer on November 15, 1920, at North Battleford, Saskatchewan, did fail to make a return of his income for the year 1917 required of him to be given pursuant to sec. 8 of the Income War Tax Act, 7-8 Geo. V, 1917 (Can.), ch. 28, and amendments.

The question submitted is: "1. Whether I have jurisdiction as a Police Magistrate and Justice of the Peace to try and convict the said J. H. Spencer in the charge notwithstanding section 18 of the Income War Tax Act 1917.”

The information is laid for an alleged breach of see. 8 of the Income War Tax Act, 1917, as amended. The only sections of the said Act dealing with the question of jurisdiction are sees. 9, 18 and 21.

Sec. 9 as amended reads as follows:

4 ‘9. (1) For every default in complying with the provisions of the next preceding section, the taxpayer and also the person or persons required to make a return shall each be liable on summary conviction to a penalty of one hundred dollars for each day during which the default continues.

"" (2) Any person making a false statement in any return or in any information required by the Minister, shall be liable on summary conviction to a penalty not exceeding ten thousand dollars or to six months ‘ imprisonment. ‘ ‘

The above section does not expressly say what Court is to make the summary conviction’’, but considering this expression, in connection with sec. 28, of the Interpretation Act, R.S.C. 1906, ch. 1, and secs. 705 and 706 of the Criminal Code, R.S.C. 1906, ch. 146, I come to the conclusion that it must be a Justice of the Peace under Part XV of the Criminal Code who is to make the summary conviction, if the evidence warrants such conviction.

Sec. 28 of ch. 1, R.S.C. 1906, in so far as it is material to this case reads as follows:

"28. Every Act shall be read and construed as if any offence for which the offender may be, (a) prosecuted by indictment, howsoever such ocence may be therein described or referred to, wrere described or referred to as an indictable offence; and (b) punishable on summary conviction, were described or referred to as an offence; and all provisions of the Criminal Code relating to indictable offences, or offences, as the case may be, shall apply to every such offence.’’

The default for which a person is liable on summary conviction under said sec. 9 is an offence or breach of sec. 8 of the Income War Tax Act (1917), although not described as an offence, and by virtue of the above in part quoted sec. 28, as it is punishable on summary conviction, the provisions of the Criminal Code relating to offences, namely Part XV, applies to it.

Having come to the conclusion that the words ‘‘summary conviction’’ in said sec. 9 mean, summary conviction by a Justice of the Peace under Part XV of the Criminal Code, I do not think the subsequent general secs. 18 and 21 take away the jurisdiction already conferred on the Justices of the Peace by said sec. 9.

Maxwell on Statutes, 3rd ed., p. 232, says:

Where a general intention is expressed, and also particular intention which is incompatible with the general one the particular intention is considered an exception to the general one. Even when the latter; or latter part of the enactment is in the negative, it is sometimes reconcilable with the former one by so treating it. If, for instance, an Act in one section authorised a corporation to sell a particular piece of land, and in another prohibited it to sell ‘‘any land”, the first section would be treated not as repealed by the sweeping terms of the other, but as an exception to it.”

My answer then to the question submitted is, ‘‘Yes’’. ‘‘You have jurisdiction as a Police Hagistrate and Justice of the Peace to try and convict the said Spencer on the charge laid notwithstanding sec. 18 of the Income War Tax Act, 1917.”

As there is no evidence before me as to what witnesses appeared before the Justice of the Peace and I am not in a position to fix the costs, I will remit the matter to the Justice of the Peace who heard the case to be dealt with by him.

The respondent will pay appellant’s costs of this appeal.

Judgment accordingly.