His Majesty the King v. J. Donen, [1917-27] CTC 270, [1920-1940] DTC 66

FULLERTON, J.A.:—Sec. 1142 of the Criminal Code, R.S.C. 1906, c. 146, as amended by 1907 (Can.), ec. 8, sec. 2, provides that: "‘In the case of any offence punishable on summary conviction, if no time is specially limited for making any complaint, or laying any information, in the Act or law relating to the particular case, the complaint shall be made, or the information laid, within six months from the time when the matter of the complaint or information arose .” I think there is no doubt but that this section is applicable to prosecutions under the Income War Tax Act, 1917 (Can.), c. 28. Under the provisions of that Act the Minister of Finance on March 9, 1922, demanded from the defendant a return of his income for the 1920 taxation period. The defendant failed to comply with this demand, and on June 20, 1924, an information was laid against the defendant for that he did on March 13 and 14, 1924, fail to make a return of his income for the year 1920 required of him to be given. The Police Magistrate held that, as the complaint was not lodged within 6 months after the expiration of the time allowed in the demand notice served, sec. 1142 of the* Code applied and no prosecution lay, and this is the point which has been reserved for our determination.

Counsel for the Crown contends that this is a continuing offence and consequently that the information is laid in time.

Sec. 8 of the Income War Tax Act, as amended by 1920 (Can.), c. 49, sec. 11, empowers the Minister to call for a return and sec. 9(1), as amended by 1919 (Can.), ce. 55, sec. 7 ; 1920 (Can.),

c. 49, sec. 13; 1921 (Can.), c. 33, sec. 4, enacts that: ‘‘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.’’

The imposition of a penalty for each day’s default in complying with the demand shows that the Legislature regarded the offence as susceptible of continuance.

I think the offence created by the statute is clearly a continuing offence. Does it follow from the fact that the offence is a continuing one that the defendant may be prosecuted at any time in the future without regard to sec. 1142 of the Code? The words of the section are “within six months from the time when the matter of the complaint or information arose’’. One would suppose that this meant that the prosecution must be begun within 6 months from the day on which the offence was first committed.

There do not appear to be any Canadian cases dealing with the construction of sec. 1142 in relation to continuing offences.

The English Act, 1848 (Imp.), ce. 43, usually referred to as the Jervis Act, contains a limitation section substantially similar to our sec. 1142. Sec. 11 of that Act reads: ‘‘And be it enacted, That in all Cases where no Time is already or shall hereafter be specially limited for making any such Complaint or laying any such Information in the Act or Acts of Parliament relating to each particular Case, such Complaint shall be made and such Information shall be laid within Six Calendar Months from the Time when the Matter of such Complaint or Information respectively arose.’’

I have examined a number of English cases dealing with the application of this section to continuing offences but have found them very difficult to reconcile.

In Meyer v. Harding (1867) 32 J.P. 421, the Court went so far as to hold that the offence being a continuing one, the limitation of time in the Jervis Act, sec. 11, was not applicable. In this case M., a collector, under a local board of health, was summoned before Justices under the Public Health Act, 1848 (Imp.), c. 63, sec. 39, for not delivering up, after 5 days’ notice to do so, a certain cash book containing entries of receipts of rates collected by him. The notice was dated and served February 2, 1865, and the book not being delivered, the summons was served in March 1867, and the Justices committed M. until he delivered up the book. It was held that the offence being a continuing offence, the limitation of time in the Jervis Act was not applicable. Cockburn, C.J. said at p. 422:

"‘I think there is nothing in the objections raised. All that the statute means is, that the party shall be compelled to do the thing required, and if he do not, after notice, and the expiration of the five days, the offence is complete, but still, if he continue to refuse, the offence also continues, and he may be committed to prison till he deliver up the book and purges the offence. It is a continuing offence. It is not within the enactment in Jervis’s Act, because that applies only to byegone offences for which a punishment one for all is awarded, the offence being complete.”

Lush, J. said at p. 422:

"‘I am of the same opinion. Jervises Act applies only to bye-gone acts for which imprisonment or distress is a punishment. Here the object is not-punishment, but the delivery of the book.’’

This case was decided in November, 1867.

In 1874, the case of Knight v. Halliwell (1874) L.R. 9 Q.B. 412, came before a Court consisting of Cockburn, C.J., Lush, J. (the two Judges who decided Meyer v. Harding, supra) and Blackburn, J. This was a prosecution under the Vaccination Acts, 1867 (Imp.), c. 84, and 1871 (Imp.), ec. 98, against the defendant for neglecting to comply with a notice requiring him to have his child vaccinated. The notice was dated May 10, 1872, requiring him to have his child vaccinated within 14 days. The information was laid on June 24, 1873. It was admitted that the above notice was the only notice that had been given and that the defendant had been repeatedly convicted for failing to comply with the notice. It was contended on behalf of the appellant that, in order to comply with the provisions of the section, it was necessary that a fresh notice should be given before each occasion on which proceedings were taken for disregarding such notice and that the appellant could only be convicted once for non-compliance with such notice, as the notice became exhausted after the appellant had been once convicted for not complying therewith. The Vaccination Act itself contained a limitation provision to the effect that any complaint may be made and any information laid for an offence under the Vaccination Act at any time not, exceeding 12 months from the time when the matter of such complaint or information arose, and not subsequently. This provision, with the exception of the last three words is the language of sec. 1142 of the Criminal Code and of see. 11 of the Jervis Act.

The Court held that the information having been laid at a time exceeding 12 months from the time the matter of such complaint ( that is, the giving of the notice) arose, the appellant could not be convicted without a fresh notice being given.

The case of Meyer v. Harding was not referred to.

Cockburn, C.J. said, at p. 415 :

66 . . As to the question raised during the argument, were it not for this last Act there would have been a continuing offence, and the appellant would have been liable to be convicted. But sec. 11 has introduced a provision that any complaint can be made for an offence under the Vaccination Acts 1867 and 1871 at any time not exceeding twelve months from the time when the matter of such complaint arose, and not subsequently. It is true that when a notice is given there is a continuing cause of complaint so long as it is disregarded; yet inasmuch as the section says that the complaint shall be made at a time not exceeding twelve months from the time when the matter of complaint arose and not subsequently, it limits the proceedings to twelve months from the day mentioned in the notice: consequently when the year expires there must be a fresh notice.’’

Blackburn, J., at p. 416-7:

"The notice to have the child vaccinated within fourteen days was given to the appellant on the 10th May, 1872, so that the child ought to have been vaccinated on the 24th of May. The disregard of that notice was the matter of complaint. On the 24th June, 1873, the present information was laid before the justices, being a period of thirteen months after the notice was disregarded and the time that the subject matter of the complaint arose. It has been said that the neglect to have the child vaccinated is a continuing offence, and although the notice was disobeyed on the 24th of May it was continually disobeyed every day the child remained un- vaccinated, so that there was a continual cause of complaint, and consequently that an order to vaccinate the child could be made at any time. I do not think we could so hold without upsetting the law with regard to the Statute of Limitations. In cases of neglect to pay a sum of money due, the statute runs from the first day the debt is due, but there is a debt continuing due from day to day; the statute, however, runs from the first day, and not from the day of continuing nonpayments. I think in all probability the period of limitation created by s. 11 was inserted in the recent Act in consequence of Allen v. Worthy [(1870) ] Law Rep. 5 Q.B. 163. According to that decision, after notice had been given to a parent to vaccinate a child and had been disregarded by him, he hight be fined from time to time; the legislature thought that this might be a hardship, and enacted that a fresh notice should be given after twelve months had elapsed; this provision, however, in no way alters the law laid down in Allen v. Worthy, but only requires that if a notice has been disregarded for a year another notice must be given.”

Lush, J. said at pp. 417-8:

"Had it not been for the statute 34 & 35 Vict., c. 98, passed since that case \ Allen v. Worthy] was decided, the party might have been proceeded against toties quoties until the order to vaccinate the child had been obeyed.’’

Regina v. Catholic Life d F. Ass’ce (1883) 47 J.P. 503, 48 L.T. 675, was decided in 1883.

By sec. 26 of the Companies Act, 1862 (Imp.), c. 89, every company having a capital divided into shares is required to make once a year a list of persons who were members on a certain day and send the same to the Registrar of Joint Stock Companies ; and by sec. 27, any company making default in complying with the above provision shall incur a penalty not exceeding £5 for every day during which such default continues. A company made default in the years 1877, 1879, 1880, 1181 and 1882. The several matters of complaint which arose in respect of the defaults made for the years 1877, 1879, 1880, 1881 and 1882 respectively, were all laid as continuing offences on the same six days in 1882, that is to say,

On October 2, 3, 4, 5, 6 and 7, 1882, in respect of the default in not forwarding the lost of members and summary in and for the year 1877. And so for the years 1879, 1880, 1881 and 1882.

The Magistrate convicted on six summonses for the offences laid to have been committed on the several days in October 1882 but declined to convict on the remaining summonses on the ground that the information in respect to these offences had not been laid within six calendar months from the time when the matter of such information arose as required by the Jervis Act. The case came before the Court by way of stated case. Counsel for the Crown admitted that the Jervis Act applied to the case but contended that a new offence was committed on every day that default was made in forwarding a list and summary provided by the statute and therefore that the company was liable to pay penalties for six months in respect of the offence committed in each year. The case was heard by Denman, J. and Hawkins, J. The judgment of Dneman, J., 48 L.T. at pp. 676-7, is reported as follows :

" ‘We must give our judgment for the appellant in this case. The words of the statute are these: ‘Such company shall in- which such default continues.’ It appears to me that the cur a penalty not exceeding five pounds for every day during default continues notwithstanding any number of days have elapsed, and it still going on the penalties are sought within six months.”

It is evident that some words have been accidentally dropped out of the last paragraph. The judgment of Denman, J. is reported thus in 47 J.P. at p. 402 :

"‘I think we must decide in favour of the appellant. The enactment states that the penalty is incurred on every day during which the default continues, and therefor is still continuing and consequently the information was not too late for the earlier years. The magistrate ought, therefore, to have committed the respondents.’’

In Stone’s Justices’ Manual, 56th ed., at p. 65, there is a note (a) dealing with sec. 11 of the Jervis Act, in which it is said :

"‘This section is comprehensive in its operation, and will be found to apply to numerous cases arising under the summary jurisdiction . . . . ”

After naming certain cases to which the section applies, the note proceeds :

‘“but not it seems (per LUSH, J.), to offences which are continuing, as, for instance, an officer failing to render accounts under [the Public Health Act] 38 & 39 Viet., 'c. 55, s. 196 I Meyer v. Harding, 32 J.P. 4B1] ; or to the emission of smoke for want of efficient alteration of a chimney. [Higgins v. Norwich Union [1870] 22 L.T. 752]. In such a case the time runs not from the first discovery, but from the date of each day charged, as if a separate offence.’’

I am unable to distinguish the present case from Reg. v. Catholic Life & F. Ass’ce, supra. In the one case the Minister, under the authority of a statute, in the other the statute itself, required a certain act to be done by a certain time. In both cases the statute imposed a daily penalty for default, and in both cases the default charged was in respect of offences which had been completed in previous years.

The demand for a return in the case at Bar was made on March 9, 1922. At the expiration of 30 days the offence was complete. The offence, however, being a continuing one was repeated daily. The defendant is charged with an offence committed on March 13 and 14, 1924, and the information laid within six months of that date, namely, on July 30, 1924. Under the authority of Reg. v. Catholic Life & F. Ass 9 ce, it must be held that the information was in time.

The question in the stated case must therefore be answered in the negative.

DENNISTOUN, J.A. concurs with Fullerton, J.A.

PRENDERGAST, J.A. (dissenting) :—I must, with all deference, dissent from the view that there should have been a conviction.

It is well established that an offence such as is created by see. 9(1) of the Income War Tax Act as amended, is a continuing offence and that a new and distinct offence is committed each day as long as the requirement of the statute is not complied with. That is the reason which makes it difficult at times to say whether a provision of a general nature limiting the time to prosecute, applies to such cases, and when it does, in what manner and to what extent.

In Meyer v. Harding, 32 J.P. 421, where the prosecution was against a collector for failure to produce a certain book as he was required to do under a certain statute, the Court of Queen’s Bench in appeal decided that the Jervis Act which provides generally that in all cases not specially provided for, every information and complaint "‘shall be laid within Six Calendar Months from the Time when the Matter of such Complaint or Information respectively arose’’ did not apply, because it did not harmonize with the circumstances of a continuing offence. The Court felt free to so find, because the Jervis Act is a distinct and separate enactment from the one under which the prosecution was instituted.

That, however, is not the situation that we have to deal with. We are not free to say that sec. 1142 of the Code does not apply here. It must apply, because it is incorporated in the Income War Tax Act by sec. 9(1) thereof which adopts the provisions of the Code with respect to summary convictions, and a general reference to the latter has always, I believe, been considered by our Court as including this sec. 1142.

If this section applies, as I think that it does, the next step is to determin its meaning,—a task made easier by the fact that it is substantially the same as the Jervis Act, as under both enactment, the six months are to be computed from the time when the matter of complaint or information arose.

Did the matter of information arise on the first day that Donen defaulted, or did it arise on the day, two years later, set forth in the information ?

It seems to me that there are two cases of very high authority, which give a clear answer to that question.

In Meyer v. Harding, Cockburn, C. J., 32 J.P., at p. 422, said :

"‘It is a continuing offence. It is not within the enactment in Jervis 9 s Act, because that applies only to bye-gone offences for which a punishment once for all is awarded, the offence being complete.”

And Lush, J.:

Jervis 9 s Act applies only to bye-gone acts.”

The other case is Knight v. Halliwell, L.R. 9 Q.B. 412, where the prosecution was under the Vaccination Acts 1867 and 1871, which made it a continuing offence for the head of a family to neglect to comply with a notice requiring him to have his child vaccinated within 14 days, and they contained a provision that the complaint should be made or the information laid within 12 months "‘from the time when the matter of such complaint or information arose and not subsequently”.—which, but for the last three words, is the same as the Jervis Act and our Criminal Code, sec. 1142.

Cockburn, C.J., at p. 415, said:

"‘It is true that when a notice is given there is a continuing cause of complaint so long as it is disregarded; yet inasmuch as the section says that the complaint shall be made at a time exceeding twelve months from the time when the matter of complaint arose and not subsequently, it limits the proceedings to twelve months from the day mentioned in the notice ; consequently when the year expires there must be a fresh notice. ‘ ‘

And Blackburn, J., at p. 416:

"The disregard of that notice [dated May 10, 1872] was the matter of complaint. On the 24th June, 1875, the present information was laid before the justices, being a period of thirteen months after the notice was disregarded and the time that the subject-matter of the complaint arose.’’

This establishes clearly that the words "‘when the matter of the complaint or information arose’’, in our Criminal Code, sec. 1142, as well as in the Jervis Act and the Vaccination Acts aforesaid, are meant to refer to the day when the default first occurred, and not to any of the subsequent days when such default continued.

We, however, have also Reg. v. Catholic Life Æ* F. Ass f ce 48 L.T. 675, and 47 J.P. 503, where the prosecution was under the Companies Act, sec. 27 of which provides that any company failing to make a certain return by a certain day shall incur a penalty not exceeding £5 for every day during which such default continues.

The judgment which was in favour of conviction, was delivered by Denman, J., and is contained in six or seven lines. The report in the Law Times cannot be relied upon, as some essential words have evidently been accidentally omitted, which makes the principal phrase meaningless.. The other report (47 J.P.) as I read it, does not preclude the view that the decision was based wholly on the wording of the Companies Act, and that, although counsel for the prosecution took the position that the Jervis Act applied, the Court was of opinion that it did not, as has already been held in Meyer v. Harding, supra.

I fail, at all events, to see that there is anything there that can be said to vary the meaning put in Meyer v. Harding and Knight V. Halliwell upon the words "‘when the matter of com- plaint or information arose’’ as found in said see. 1142, which we cannot disregard as was done in the former case, as it is made part of the Income War Tax Act.

In my opinion, the Magistrate was right in dismissing the information, and the question should be answered "‘yes’’.

TRUEMAN, J.A.:—By sec. 8(1) of the Income War Tax Act, 1917, as amended by 1920 (Can.), c. 49, see. 11, it is provided that :

"If the Minister, in order to enable him to make an assessment or for any other purpose, desires any information or additional information or a return from any person who has not made a return, or a complete return, he may by registered letter demand from such person such information, additional information or return, and such person shall deliver to the Minister such information, additional information or return within thirty days from the date of the mailing of such registered letter.”

A demand for a return of his income for the 1920 period of taxation was made upon the respondent J. Donen, of Winnipeg, by registered letter dated and mailed on March 9, 1922. An information was laid on June 20, 1924, charging that on March 13 and 14, 1924, he had not made a return as required by said demand. At the hearing, the Police Magistrate, Sir Hugh John Macdonald, considering that the offence was subject to see. 1142 of the Criminal Code, dismissed the charge on the ground that the complaint had not been made within six months from the expiration of the 30 days from the date of the mailing of the demand. Sec. 1142 of the Code is as quoted ante p. 1141.

The Police Magistrate on the request of the Crown granted a reserved case.

By sec. 9(1) of the Income War Tax Act, as amended, it is provided, as quoted ante p. 1142.

The question in the construction of this provision read with sec. 8(1) is whether it provides not merely for a penalty but for a continuing offence during each succeeding day’s default. If the latter is its tdue meaning, as I believe it is, the information need not be laid within six months from the expiration of the 30 days.

The test of whether the offence is continuous or not is whether though the offence is complete at the end of 30 days the section provides for a continuing default. The demand made under sec. 8(1) unquestionably does not stop at the end of 30 days: other- wise no compliance could be made with it after that time. But compliance after that time is as much required as it is during the currency of the 30 days. It is this referred compliance, no matter how persistent and long drawn out the delinquency may be, that the coercive pressure of a daily penalty is designed to bring about. The purpose of the legislation is to comple obedience to the demand, and not to punish the default. If the section was concerned only with the primary default, the matter would have been cut short by a fixed penalty. The offence must therefore be held to be a continuous one, and not subject to sec. 1142 of the Code. In Meyer v. Harding, supra, the collector under a local board of health was summoned before Justices under the Public Health Act, sec. 39, for not delivering up, after five days’ notice to do so, a cash book containing entries of rates collected by him. The notice was dated and served February 2, 1865. The summons was taken out in March, 1867. He was committed until he should deliver up the book. An appeal was taken on the ground, among others, that the non-compliance with the notice of February 2, 1865, was the offence proceeded for, and that the proceeding was therefore barred by the Jervis Act, sec. 11. That section enacts, that in all cases where no time is already, or shall hereafter be specially limited for making any such complaint or laying any such information in the Act or Acts of Parliament relating to each particular case, such complaint shall be made, and such information shall be laid with six calendar months from the time when the matter of such complaint or information respectively arose. The conviction was affirmed. The judgment of Cockburn, C.J., at p. 422, is quoted ante p. 1143.

Lush, J., was of the same opinion, pointing out that the object of the Public Health Act, was not punishment but the delivery of the book. The case is also reported in 17 L.T. 140 [Mayer v. Harding]. See also Reg. v. Catholic Life & F. Ass^e, 47 J.P. 003; Metropolitan Bd. of Works v. Anthony (1884), 49 J.P. 229; Rumball v. Schmidt (1882), 8 Q.B.D. 603; Chepstow Elec.

L. & P. Co. v. Chepstow Gas & Coke Consumers’ Co. [1905] 1 K.B. 198; Verney v. Mark Fletcher & Sons, Ltd. [1909] 1 K.B. 444. I refer to these cases because they furnish a useful explanation of what is meant by a continuing offence. Whether an offence is an continuing one or not, is a question of principle turning upon the words of the statute to be construed, in which other decisions based upon different legislation can be of no assistance: Langridge v. Hobbs [1901] 1 K.B. 479, cited by counsel for the defendant, as well as Knight v. Halliwell, L.R. 9 Q.B. 412, since drawn to my attention, are cases which were disposed of on their own facts. In the former, the Vaccination Acts there under consideration require that the parent of every child born in England shall cause it to be vaccinated by some medical practitioner within six months from its birth. If a vaccination has not been made at the end of six months from the birth of the child the offence has been committed. Failure to comply with a notice given by a vaccination officer to the parent under vaccination orders issued by the Local Government Board, was held not to create a fresh offence. The time within which the parent could be prosecuted ran from the expiration of six months from the birth of the child, when the offence was complete. In Knight v. Halliwell, supra, a notice under the Vaccination Acts, 1867 and 1871, was given to the defendant on May 10, 1872, requiring him to have his child vaccinated within 14 days. Having disregarded the notice, information against his was laid on June 24, 1873. By see. 11 of the 1871 Act, any complaint may be made for an offence under the Vaccination Act at any time not exceeding 12 months from the time when the matter of complaint arose, and not subsequently. The matter of complaint therefore arose on May 24, 1872, when the child ought to have been vaccinated. Cockburn, C.J., said that though it was true that when the notive was given there was a continuing cause of complaint so long as it was disregarded; yet inasmuch as the section said that the complaint should be made at a time not exceeding 12 months from the time when the matter of complaint arose and not sub- sequently, it limited the proceedings to 12 months from the day mentioned in the notice. In a plain matter of construction of unequivocal words any other conclusion was not open to the Court, which in addition to Cockburn, C.J., consisted of Blackburn and Lush, JJ.

I have dealt with sec. 8(1) upon its most narrow construction, treating it as making the offence a continuing one, and so outside of sec. 1142 of the Code. I cannot fail to notice, however, that sec. 8(1) excludes sec. 1142 proprio vigore.

It is of no significance for the purpose of construing the sections in question that unless sec. 1142 of the Code applies there is no limit to the time within which a prosecution may be commenced. Periods of limitation for the prosecution of offences, it must be remembered, are but statutory qualifications of the maxim nullum tempus occurrit regi.

The Police Magistrate’s question, "Wsa I right in holding that, as the complaint was not lodged within six months after the expiration of the time allowed in the demand notice, no prosecution lay by reason of sec. 1142 of the Criminal Code’’? I must, with very great respect, answer in the negative.

Question answered in the negative: