His Majesty the King v. R. Cyril Smith, [1917-27] CTC 173

Harris, C.J. (dissenting) :—The accused was charged before the stipendiary magistrate of the city of Halifax with failure on August 1 and 2, 1922, to make a return of his income for the year 1919 as required by sec. 8 of the Income War Tax Act, 1917 (Can.), ch. 28, and amending Acts, after demand by registered letter mailed to him for more than 30 days before August 1.

The accused was convicted and the stipendiary magistrate imposed a fine of only $20 in respect of the two days.

At the request of the prosecutor the stipendiary magistrate has stated a case to this Court as to the validity of the penalty on the ground that it is erroneous in point of law and in excess of jurisdiction and has submitted the following questions for the judgment of the court: 1. Whether I was required by subsec. 1 of sec. 9 of the Income War Tax Act, 1917 (Can.), ch. 28, and the Acts in amendment thereto, to impose a penalty of $25 for each day on which the default continued. 2. Whether I was entitled under the said Acts to exercise a discretion enabling me to impose a penalty of $20 for the two days’ default for which the said R. Cyril Smith was convicted.

1917 (Can.), ch. 28, sec. 9(1) amended by 1919, ch. 55, see. 7 ; 1920, ch. 49, see. 13 and 1921, ch. 33, sec. 4 now reads :

"‘9 (1) For every default in complying with the provisions of the next preceding section the persons in default shall each be liable on summary conviction to a penalty of twenty-five dollars for each day during which the default continues.’’

It was argued that see. 1029 of the Criminal Code does not apply to proceedings under the Summary Convictions provisions of the Code, but a perusal of the various sections of the Code shews that many of them do apply to summary proceedings under Part XV and there are express decisions to the effect that sec. 1028 which deals with the same question as sec. 1029 applies to summary convictions. The Queen v. Robidoux (1898) 2 Can. Cr. Cas. 19 ; Ex parte Kent (1903) 7 Can. Cr. Cas. 447.

I have no doubt sec. 1029 Criminal Code applies to such proceedings and the sole question is as to its meaning. Sec. 1029 reads as follows:

“ ‘1029. Whenever a fine may be awarded or a penalty imposed for any offence, the amount of such fine or penalty shall, within such limits, if any, as are prescribed in that behalf, be in the discretion of the Court or person passing sentence or convicting, as the case may be.”

If the words ‘‘within such limits if any as are prescribed. in that behalf’’ are read as if in brackets it makes the meaning of sec. 1029 clear. The section so read gives the Court an unlimited discretion as to the amount of a penalty or fine in all cases provided that where there are any limits prescribed the discretion must be exercised within those limits, and it gives the Court the same discretion regarding a fine or penalty as it has under sec. 1054 with regard to imprisonment.

After giving the matter careful consideration I am convinced that is the proper interpretation. The attention of the Court was called to various sections of the Criminal Code which prescribe fixed penalties for a violation, e.g., sec. 208 immoral theatrical performances 4 "liable to a fine of five hundred dollars’’ ; sec. 231, gaming in stock "‘five hundred dollars’’; sec. 242(a), as amended 1913 (Can.), ch. 13, sec. 14, neglect to provide for wife and children, "‘five hundred dollars’’; sec. 407(a) as amended 1913 (Can.), ch. 15, sec. 16, false statements in writing “two thousand dollars’’, ete.

These are but examples. They all prescribe imprisonment for a definite time as an alternative or as additional punishment. sec. 1054 of the Criminal Code gives power to reduce the term of imprisonment and unless sec. 1029 is to be interpreted in the same way so far as the penalty is concerned it results in this that the full amount of the fine fixed by the section must be imposed. It is, I think, intended by the various sections under Part XX to give the Court the same discretion with regard to fines as 18 given to it with regard to imprisonment. Under both sections the discretion is, I think, general subject to the terms or limits prescribed by the special Act.

The Supreme Court of Canada in the ease of Re Richard (1907) 38 Can. 8.C.R. 394 has held that where a penalty was. imposed by the words ‘‘not less than $50’’ it meant a penalty of $50 precisely but Parliament has not used these words in the present case as it might have done if it was the intention to fix the penalty at precisely $25.

The case of Rex v. Thompson Mfg. Co. Ltd. (1920) 47 O.L.R. 103 was cited and Latchford, J., is reported to have held in a similar case that the magistrate had no discretion but must fix the penalty prescribed by sec. 9(1) of the Income War Tax Act, 1917, as amended. It is obvious that his intention was not called to sec. 1029 of the Code, as it is not referred to. The decision therefore is not helpful as it otherwise would have been.

I would answer the first question reserved in the negative and the second in the affirmative.

CHISHOLM, J.:—The Income War Tax Act, 1917 (Can.), ch. 28, sec. 9(1) as amended; which I shall simply designate hereafter as sec. 9, is as follows:

“For every default in complying with the provisions of the next preceding section, the persons in default shall each be liable on summary conviction to a penalty of twenty-five dollars for each day during which the default continues.”

An information was laid against the defendant for failure to comply with sec. 8 of the same Act as amended 1920 (Can.), ch. 49, and he was found guilty by the stipendiary magistrate in and for the city of Halifax and was adjudged for his said offence to forfeit and pay the sum of $20 and costs and in default of payment of the said penalty and costs to be imprisoned for 30 days. The magistrate reserves the following questions for the opinion of the Court in banco: [See judgment of Harris, C.J. ante].

In support of the decision of the magistrate, the defendant’s counsel invokes sec. 1029 of the Criminal Code (hereinafter referred to as sec. 1029) which is as follows: [See judgment of Harris, C.J. ante}.

And the Crown meets that argument by saying (1) that sec. 1029 has no application to this case because it is not included in Part XV of the Criminal Code, the part which specifically deals with summary convictions; and (2) that even if see. 1029 has application to cases of summary conviction, it does not aid the defendant’s contention in this case.

I cannot yield to the first point urged by the Crown. Part XV is not a complete code on the subject of summary convictions. It is only a part of the Criminal Code, and many sections outside of Part XV are obviously applicable to cases of summary conviction, although not in express terms made so applicable, for example, the sections dealing with commutation of sentences.

Dealing with sec. 9 of the Income War Tax Act, the language in my view is clear, precise and unambiguous. It seems to me to admit of but one meaning; and I agree with the view taken of it by Latchford, J., in Rex v. Thompson Mfg. Co., Ltd., 47 O.L.R. 103.

Endlich on the Interpretation of Statutes, 1888, pp. 6-7, sec. 4 says:

"‘When, indeed, the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise [and those incidental rules which are mere aids, to be invoked when the meaning is clouded, are not to be regarded, Western Un. Tel. Co. v. District of Columbia, 2 Centr. Rep. 694.] It is not allowable, says Vattel, to interpret what has no need of interpretation. Absolut a sent ent ia ex- positore non eget. Such language best declares, without more, the intention of the lawgiver, and is decisive of it. The Legislature must be intended to mean what it has plainly expressed, and consequently there is no room for construction. It is, therefore, only in the construction of statutes whose terms give rise to some ambiguity, or whose grammatical construction is doubtful, that the Courts can exercise the power of controlling the language in order to give effect to what they suppose to have been the real intention of the law makers. Where the words of a statute are plainly expressive of an intent, not rendered dubious by the context, the interpretation must conform to and carry out that intent. It matters not, in such a case, what the consequences may be. M

See also Craies on the Intepretation of Statutes, 4th ed., pp. 65 and 66.

Standing by itself sec. 9 enacts that a person convicted for violation of the preceding section shall be liable to a penalty of $25 for each day of default. Sec. 1029 enacts that whenever a fine may be awarded or a penalty imposed for any offence, the amount of such fine or penalty shall, within such limits, if any, as are presented in that behalf, be in the discretion of the Court, or the person passing sentence or convicting, as the case may be.

The magisrate’s discretion as to the amount of the fine is not an unrestricted one, it is to be exercised within the limits prescribed in that behalf. I Parliament has fixed the exact penalty, then there are no limits prescribed, and there is nothing in the case to enable sec. 1029 to operate. It would be unsound reasoning to say that sec. 9 gives a discretion to the magistrate because of sec. 1029, and sec. 1029 has application because sec. 9 gives a discretion to the magistrate. If Parliament meant to limit the penalty and to make the smallest coin the minimum and $25 the maximum one would expect it to use the phrase so frequently employed in Acts of Parliament, namely, "‘a penalty not exceeding $25’’.

I would answer the first question in the affirmative, and the second in the negative.

MELLISH, J.:—After considerable hesitation I have come to the conclusion that the first question submitted herein must be answered in the affirmative and the second in the negative.

Considering sec. 9(1) of the Income War Tax Act, 1917, as amended: in my opinion this section fixes $25 as the certain amount to be forfeited for each day of default. The words "‘liable to’’ must receive their ordinary primary meaning when used in reference to a penalty which I think is ‘‘bound to pay”.

See. 1029 of the Criminal Code, if applicable, is not intended, I think, to enable a magistrate or Judge to mitigate a penalty fixed by statute. The discretion therein referred to, is I think, expressly confined within the statutory limits if any. There are many criminal statutes which assing no limits to an authorized fine. See Hals, p. 412, sec. 788 and note m., see also sec. 1035 of the Criminal Code.

There appears, however, to be no section in relation to fines similar to sec. 1054 which provides that every one who is liable to imprisonment for any term may be sentenced for any shorter term.

No case has been cited to us as authority for the proposition that on summary conviction Justices of the Peace can mitigate a penalty fixed by statute and there would appear to be long standing authority to the contrary (see sub-tit. Amerciaments and Fines, 3 Salk. 32, 91 E.R. 674).

ROGERS, J.:—The 9th section of the Income War Tax Act, 1917 (Can.), ch. 28, as amended in 1919, ch. 55, see. 7; 1920 ch. 49, sec. 13 ; and 1921 ch. 33, sec. 4, reads as follows :

"" (1) For every default in complying with the provisions of the next preceding section the persons in default shall each be liable on summary conviction to a penalty of twenty-five 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 or to both fine and imprisonment. ’ ‘

The defendant stands convicted of being in default for two days in failing to make a return demanded of him under sec. 8 of the Act and the stipendiary magistrate has imposed a fine of $20 or $10 for each day of the two days. The point is as to whether the magistrate has the right to exercise a discretion as to the amount of the penalty and exact a sum less than $25 per day. In my opinion, and with due respect for the contrary views of my brethren, as well as for those of the experienced magistrate, the section under consideration establishes a penalty in a fixed sum for each day’s default and the magistrate can no more reduce it than he can increase it. The words used ‘‘shall be liable . . . to a penalty of twenty-five dollars for each day during which the default continues’’ convey to my mind only one meaning. They mean what they say; no more or less. The defendant who is in default is liable to, is responsible for, or is under obligation to pay a penalty or fine, the definite amount of which is stated. And if Parliament intended that the amount should be less under certain circumstances or desired to fix limits with which the magistrate could assess a less sum it would have said so and it has very frequently so said in other Acts.

Not only are the quoted words sufficiently specific but it is to be noted that in subsec. (2) immediately following the penalty for ‘‘making a false statement in any return or in any information required by the Minister” is imposed in these words: "‘shall be liable on summary conviction to a penalty not exceeding ten thousand dollars . . . .” These words indicate a wide scope of judicial discretion and for good reasons consistent with the policy of the Act. There may be many varieties or degrees of fault in a false statement or in the required information, some very trivial and unimportant, indicating mere mistake and inadvertence and others suggesting gross carelessness or deliberate perhaps fraudulent design to disregard or evade the requirements of the law. In the case at Bar—failure to make a rteurn—the penalty was originally fixed at $100 now reduced to $25. The punishment here is a fixed sum and also for sound reasons of public policy. The offence implies in every case the same degree or quality of fault—a contempt of the King—and is properly punishable by a fixed and determinate sum. I cannot think that Parliament could intend to put it in the power of the magistrate to impose perhaps a mere nominal fine against one defaulter and the full limit against another, and to my mind there is no indication of such an intention. If the statute on the language used is clear and the penalty is a fixed one, we are not at liberty to invoke sec. 1029 of the Code, and it becomes unnecessary to determine whether under other statutes and upon other words that section could be called to our assistance. In any case, I think that sec. 1029 is to be used only to make it clear that where a statute does not fixt the amount of a fine or penalty the magistrate may do so in his discretion, but where limits are prescribed by the statute his discretion must of course be exercised within these limits. Where the penalty has been determined the section can have no application.

I would answer the first question, Yes : and the second, No.