Whealy, D.C.J.:—This is a summary conviction appeal by the Crown from the decision of His Honour Provincial Court Judge T. Mercer in which he stayed count one of the information because he found that the accused had been placed in double jeopardy contrary to section 7 of the Charter of Rights and Freedoms. The information contained originally seven counts. Count one will be further dealt with below. The Crown elected not to proceed against the accused on counts two, three and four and the accused entered pleas of guilty on counts five, six and seven.
Although the accused admits all the factual allegations of the Crown with respect to count one, he entered a plea of not guilty at trial and as his only defence pleaded the protection of section 7 of the Charter of Rights and Freedoms. What gave rise to the claim of protection was that the Minister of National Revenue on February 4, 1986, pursuant to section 163 of the Income Tax Act, reassessed the respondent by imposing the 25 per cent penalty referred to in that section. The file was then referred to the Attorney General of Canada who caused an information to be sworn with the seven counts on March 13, 1986.
The respondent had 90 days within which to appeal the reassessment under section 163 but apparently filed his appeal a few days late in the Tax Court of Canada. It would appear that the Minister of National Revenue is either resisting or has successfully resisted the validity of the appeal, but counsel before me were uncertain as to whether the reassessment was final or would be the subject of further proceedings on the civil side.
The section which the Minister purported to reassess under reads as follows:
163 (2) Every person who, knowingly, or under circumstances amounting to gross negligence in the carrying out of any duty or obligation opposed by or under this Act, has made or has participated in, assented to or acquiesced in the making of, a false statement or omission in a return, . . . is liable to a penalty of:
(a) 25% of the amount, if any, by which . . .
the tax payable has been evaded. Subsection 239(1) of the same Act reads as follows:
239 (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, . . . filed or made as required 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, or
is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to . . .
(f) a fine of not less than 25% and not more than double the amount of the tax that was sought to be evaded, or . . ."
(g) both the fine described in paragraph (f) and imprisonment for a term not exceeding 2 years.
Finally, subsection 239(3) reads:
239(3) Where a person has been convicted under this section of wilfully, in any manner, evading or attempting to evade payment of taxes imposed by Part I, he is not liable to pay a penalty imposed under s. 163 for the same evasion or attempt unless he was assessed for that penalty before the information or complaint giving rise to the conviction was laid or made.
An argument was made to Judge Mercer at trial, which he accepted, concerning section 7 of the Charter of Rights and Freedoms which reads as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The successful argument ran: that section 7 is a statement of general principle and is larger and subsumes sections 8 to 14 inclusive with which it is associated under the same heading of the Charter.
In addition to the cases considered by Judge Mercer, two new cases have been placed before me which, although decided before Judge Mercer's decision on October 27, 1987, were apparently unknown to either counsel or the learned judge. The earliest of these cases is R. and Georges Contracting Ltd., George Arthur Cloarec, 15 B.C.L.R. (2d) 240, a decision of Mr. Justice Toy in the Supreme Court of British Columbia. He was hearing an appeal of a Provincial Court decision and in essence rejected a claim of Charter protection pursuant to paragraph 11(h) of the Charter in circumstances virtually identical to those before me.
The second was The Queen v. Yogendra Sharma, a decision of Mr. Justice Smith in the Supreme Court of Ontario also dealing with a claim of protection under paragraph 11(h) of the Charter decided September 29, 1987 (unreported) in which he considered Mr. Justice Toy's decision in Cloarec. He also came to the same conclusion and denied Charter protection.
In this appeal the respondent has not sought to employ paragraph 11(h) of the Charter and indeed concedes that I am bound by the two cases I have already mentioned as well as perhaps other case law.
The respondent argues that under section 239 his liberty is certainly at risk because of the penalty clause and thus under section 7 what he must establish to my satisfaction on this appeal is that his liberty is unfairly at risk in accordance with the principles of fundamental justice; in this case, the fundamental principles of justice forbidding double jeopardy. It is further argued that the phrase double jeopardy, although most commonly applied to multiple trials, really originates in a principle forbidding double punishment. The respondent argues, therefore, that having been penalized under section 163 he is in jeopardy of being penalized a second time under subsection 239(1) and that this is contrary to well established principles of fundamental justice.
The appellant's position, extremely briefly, is that the procedure under section 163 is in the first instance merely administrative, and if appealed against follows the format of a civil action or appeal and that the 25 per cent assessment should be considered in the nature of punitive damages in a Civil sense, while section 239 is, to quote Mr. Justice Toy, “S. 239(1)(a), although a provision of the Income Tax Act is truly an exercise of the power of the Government of Canada to legislate in the field of criminal law." Mr. Stone argues vigorously that there are many situations where both criminal prosecution and a civil "remedy" are available and cites as an example a conviction under the Criminal Code for what is generally referred to as impaired driving which automatically results in another penalty outside the criminal court, the loss of the accused's driving privileges by the administrative act of a provincial legislature.
One argument put to me by the respondent which impresses me is that in the situation before me the Crown being one and indivisible has chosen two routes under the same statute over which it has total control as to its content which results in two penalties being imposed, whereas in all of the other cases either two different governments, i.e. Crowns, are involved or there is only one Crown and an individual involved.
Another argument which appeals to me is the fact that there appears to be no decision which squarely faces the issue I am dealing with although I will make some allusion to a Supreme Court of Canada decision further down.
I have no hesitation in saying that I agree with Mr. Stone's argument that where there is a matter of claiming protection under paragraph 11(h) the result would be automatic as I would be bound by the Sharma decision noted above. The most recent case of the Supreme Court of Canada brought to my attention concerning the issue of double jeopardy plus the issue of Charter protections is Wigglesworth v. The Queen, an as yet unreported judgment of November 19, 1987 with reasons for judgment by The Honourable Madam Justice Wilson and concurred in by Chief Justice Dickson and Mr. Justices Beetz, McIntyre, Lamer and LaForest. There was a dissent by Mr. Justice Estey. In brief, the factual basis of that case was that a member of the R.C.M. Police had been disciplined under the Royal Canadian Mounted Police Act for a "major service offence” which was followed by the laying of an information under the Criminal Code and the accused policeman sought to have the information quashed claiming the protection of section 11 of the Charter. The outcome of the appeal in the Supreme Court of Canada is summed up in these words of Madam Justice Wilson,
I would hold that the appellant in this case is not being tried and punished for the same offence. The “offences” are quite different. One is an internal disciplinary matter. The accused had been found guilty of a major service offence and has, therefore, accounted to his profession. The other offence is a criminal offence of assault. The accused must now account to society at large for his conduct. He cannot complain, as a member of a special group of individuals subject to private internal discipline, that he ought not to account to society for his wrongdoing.
In the course of reaching this conclusion, Madam Justice Wilson accepted a large number of cases as well as articles dealing with double punishment. At page 18 of the released judgment, she says, in part,
In "Annotation to R. v. Wigglesworth" (1984), 38 C.R. (3d) 388 at 389, Professor Stuart states: . . . other punitive forms of disciplinary measures, such as fines or imprisonment, are indistinguishable from criminal punishment and should surely fall within the protection of s. 11(h)". I would agree with this comment but with two caveats. First, the possibility of a fine may be fully consonant with the maintenance of discipline and order within a limited private sphere of activity and thus it may not attract the application of s. 11. It is my view that if a body or an official has an unlimited power to fine, and it does not afford the rights enumerated under s. 11, it cannot impose fines designed to redress the harm done to society at large. Instead it is restricted to the power to impose fines in order to achieve particular private purpose. One indicium of the purpose of a particular fine is how the body is to dispose of the fines that he collects. If, as in the case of proceedings under the Royal Canadian Mounted Police Act the fines are not to form part of the Consolidated Revenue Fund but are to be used for the benefit of the Force, it is more likely that the fines are purely an internal or private matter of discipline: Royal Canadian Mounted Police Act, s. 45. The second caveat I would raise is that it is difficult to conceive of the possibility of a particular proceeding failing what I have called the “by nature” test but passing what I have called the “true penal consequence" test. I have grave doubts whether any body or official which exists in order to achieve some administrative or private disciplinary purpose can ever imprison an individual. Such a deprivation of liberty seems justified as being in accordance with fundamental justice under s. 7 of the Charter only when a public wrong or transgression against society, as opposed to an internal wrong, is committed. However, as this was not argued before us in this appeal I shall assume that it is possible that the “by nature” test can be failed but that the "true penal consequence" test passed.
Very shortly later, Madam Justice Wilson makes the following observation,
Before turning to the application of the law to the facts of this case, I want to emphasize that nothing in the above discussion takes away from the possibility that constitutionally guaranteed procedural protections may be available in a particular case under s. 7 of the Charter even though s. 11 is not available. The appellant in this case has chosen to base his case solely on s. 11 of the Charter. In view of this I make no comment on the applicability of s. 7.
The portions of the Wigglesworth decision that I have quoted above seem clearly to invite the kind of application and argument that has been placed before me. And the issue would seem to be twofold: first of all, is it a factual situation which will not fit within section 11 of the Charter but might well fit within section 7 as Madam Justice Wilson remarks. And the second point is, what fundamental principles of justice are being violated for the latter inquiry is really a qualifier to the general statement in the opening words of section 7. As well, I would note that the Wigglesworth decision is clearly dealing with double punishment rather than double prosecution.
Both counsel in this appeal attach a great deal of importance to this appeal and I have little doubt that it may well be brought to the attention of another court. Accordingly, I intend only now to cite the various cases which were referred to me which I have read and assimilated in order to reach the conclusion that I have reached. The following cases: Reference re s. 94(2) of the Motor Vehicle Act (1985), 23 C.C.C. (3d) 289; Kienapple v. The Queen, [1975] 1 S.C.R. 729; 15 C.C.C. (2d) 524; Hudson v. Lee (1589), 4 Co. Rep. 43a, 76 E.R. 989; Wemyss v. Hopkins (1875), 10 L.R.Q.B. 378; Duhamel v. The Queen, [1984] 2 S.C.R. 555; 14 D.L.R. (4th) 92; Krug v. The Queen (1982), 7 C.C.C. (3d) 324, affm'd 21 D.L.R. (4th) 161 (S.C.C.); Wigglesworth v. The Queen (1987), November 19, 1987, (unreported); Re Trumbley et al. and Fleming et al. and three other appeals, 55 O.R. (2d) 570 [which seems to be affirmed by the Supreme Court of Canada in the Wigglesworth decision as it was the same issue]; Re Regina and Green (1983), 5 C.C.C. (3d) 95; R. v. Mingo et al., 2 C.C.C. (3d) 23; as well as the two cases which I cited at the very beginning of this judgment. In addition, I have read the following article: Double Jeopardy, Martin L. Friedland, 1969, Oxford, Clarendon Press, pages 3-5, 8, 9, 195-196, 315-318.
It is my view that subsection 163(2) in the opening paragraph makes it absolutely clear that a penalty is being imposed on the taxpayer by way of a reassessment but which is appealable according to a civil procedure. It is equally apparent to me that subsection 239(1) imposes a penalty but in these words, ”. . . and, in addition to any other penalty otherwise provided, is liable on summary conviction . . .".
Notwithstanding the apparent authority under section 239 to impose a penalty thereunder in addition to any other penalty, it is my view that that language is subject to the overriding purview of section 7 of the Charter and that the respondent in this case is being exposed to double punishments for the same delict. It matters not whether the penalties fall under the rubric of civil or criminal if a single and indivisible "Crown" is the author of both matters. Under those circumstances I am of the view that the declaration of Judge Mercer was correct and the appeal is dismissed.
Appeal dismissed.