Murphy, J.:—This is an appeal by the appellant from sentence following a guilty plea to the charge:
That on the 26th day of September, 1990, unlawfully failed to comply with the notice dated the 11th day of May, 1990, served upon her pursuant to paragraph 231.2(1)(a) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act"), in that she did not provide to the Minister of National Revenue, Taxation at Victoria, Province of British Columbia, an Income Tax Return on Form T-1, for the taxation year 1986, required from her, contrary to subsection 238(1) of the Income Tax Tax Act.
A stay of proceedings was entered on each of three other similar counts pertaining to the taxation years 1987, 1988, and 1989.
Pursuant to the Income Tax Act the penalty for failing to file or make the required return is a fine of not less than $1,000 and not exceeding $25,000 or such fine and imprisonment for a term not exceeding 12 months. The appellant was sentenced to pay a fine of $1,000.
The basis of this appeal is that the learned trial judge erred in law in holding that the mandatory minimum fine does not contravene section 12 of the Charter:
Treatment or punishment
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
A motion to this effect was before His Honour Judge Brahan. He delivered his decision with reasons on September 11, 1991 holding that the minimum fine provisions did not contravene section 12 of the Charter.
On September 17, 1991 His Honour Judge Brahan imposed the minimum fine and gave the appellant until April 1, 1992 to pay it.
I agree with the reasons of the trial judge and I dismiss the appeal.
I only wish to note that the charge is not one of failing to file a return but failing to comply with a notice to file a return. In the notice, sufficient time is given to comply and as well the consequences of failing to comply are set out. A person receiving such a notice is well aware of the consequences of failing to comply, and therefore has the opportunity to avoid the consequences. In this respect, as pointed out by His Honour Judge Brahan, the relevant section of the Income Tax Act does not create an absolute liability offence. It creates a strict liability offence which is open to a defence of due diligence.
Appeal dismissed.