Hinkson, J.A.:—This is an appeal from the conviction of the appellant for failure to comply with demands made by the Minister, pursuant to the provisions of subsection 231(3) of the Income Tax Act.
The circumstances are that the Minister made four demands, pursuant to that section on December 21, 1982. Those demands were as follows:
(a) a signed statement of assets and liabilities as at December 31, 1979;
(b) a signed statement of assets and liabilities as at December 31, 1980;
(c) a signed statement of assets and liabilities as at December 31,1981;
(d) a list of the names and addresses of all persons and/or corporations from whom he or anyone acting on his behalf received salary, wages, commissions, gratuities, director’s or other fees and any other remuneration for the period January 1, 1979 to December 31, 1981, and the production of certain books and records.
The appellant failed to comply with these demands and was charged by Information, pursuant to the provisions of the Income Tax Act.
On May 27, 1983, the appellant pled guilty to the four counts and received a fine of $200 on each count, which fines were paid by the appellant.
On October 18, 1983, the appellant was served again with demands pursuant to subsection 238(3) [sic] of the Income Tax Act to provide the Department of National Revenue with the same information and documents previously requested on December 21, 1982.
The appellant failed to comply with these demands and was charged pursuant to subsection 238(2) of the Income Tax Act with three counts under paragraph 231(3)(a) and one count under paragraph 231 (3)(b). On June 26, 1984, the appellant was convicted of the four counts. He was then fined $300 on each of the first three counts and sentenced to 90 days in jail on the fourth count.
An appeal was taken to the County Court and on appeal a fine of $2,500 was substituted for the sentence on count 4 of 90 days imprisonment. Otherwise, the appeal was dismissed.
It is from these convictions that this appeal is brought.
The issue raised by the appellant is whether or not, having regard to the fact that he was charged and convicted as a result of the demand made on December 21, 1982, it was open to the Minister to lay a fresh Information and obtain another conviction on June 26, 1984.
Counsel for the Minister has referred us to the provisions of subsection 238(1) of the Income Tax Act, which deals with failure to file a return. That section provides:
(1) Every person who has failed to file a return as and when required by or under this Act or a regulation is guilty of an offence and, in addition to any penalty otherwise provided, liable on summary conviction to a fine of not less than $25 for each day of default.
The section pursuant to which the Minister made the demands in the present case is subsection 231(3). It provides:
(3) The Minister may, for any purposes related to the administration or enforcement of this Act, by registered letter or by a demand served personally, require from any person
(a) any information or additional information, including a return of income or a supplementary return, or
(b) production, or production on oath, of any books, letters, accounts, invoices, statements (financial or otherwise) or other documents,
within such reasonable time as may be stipulated therein.
The charging section is contained in subsection 238(2). It provides:
(2) Every person who has failed to comply with or contravened subsection 116(3), 127(3.1) or (3.2), 153(1), 227(5), 230.1(1) or 230.1(2), or section 230 or 231 is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to
(a) a fine of not less than $200 and not exceeding $10,000, or
(b) both the fine described in paragraph (a) and imprisonment for a term not exceeding 6 months.
It is the submission of the appellant on this appeal that the provisions of subsection 231(2) provide for one demand only and that when a conviction is obtained for failure to comply with that demand it is not open to the Minister to then make a fresh demand covering the same period of time and the same information sought in the first demand.
Counsel for the appellant made reference to the decision of the Quebec Court of Appeal, R. v. Filteau, [1985] 1 C.T.C. 19; 17 C.C.C. (3d) 570. The court in that case concluded that it was not open to the Minister to lay a fresh charge for failure to comply with a second demand.
Counsel for the Minister contended that decision was erroneous and made reference to decisions in the Ontario Courts, R. v. Smith, (1958) 120 C.C.C. 241; [1958] O.W.N. 277, a decision of Chief Justice McRuer; R. v. Subacious, [1978] C.T.C. 610; (1978) 43 C.C.C. (2d) 42, a decision of the Ontario Court of Appeal; and R. v. Sakellis, [1970] C.T.C. 342; (1970) 2 C.C.C. 378.
The decisions in Smith and Subacious dealt with the provisions of subsection 238(1) of the Income Tax Act. Mr. Justice Martin, in delivering the judgment of the Court in Subacious said at 612 (C.C.C. 44) in dealing with a contention that subsection 238(1) of the Income Tax Act provided for only one charge and one conviction:
Kienapple v. The Queen, supra, precludes more than one conviction for the same matter or delict. We think it is quite clear that under the Income Tax Act, each day of default constitutes a separate matter or delict and hence the principle in Kienapple v. The Queen does not apply. Dean Friedland, in his well-known work Double Jeopardy (Oxford: Clarendon Press, 1969), says at 217:
As pointed out above the rule preventing multiple convictions must give way to a clear legislative intent; and there are numerous statutes which provides specifically for cumulative penalties, such as a certain penalty for each day that the offence continues.
I respectfully agree with that reasoning with reference to subsection 238(1) of the Income Tax Act, but when regard is had for the provisions of subsection 231(3) of the Act, it is not clear that Parliament intended that the Minister, having laid a charge for failure to comply with a demand pursuant to that subsection, and having obtained a conviction, was at liberty to make a fresh demand and upon failure to comply with that fresh demand to then lay a charge and obtain a conviction for failure to comply with that fresh demand, When the penalty provided in subsection 238(2) of the Act is considered in relation to a failure to comply with a demand pursuant to subsection 231(3) in my opinion the type of penalty provided in that subsection indicates that Parliament intended that the penalty be imposed only once for failure to comply with a demand pursuant to subsection 231(3). The amount provided of between $200 and $10,000 does not indicate to me that Parliament intended that the Minister be able to repeatedly make the demand if the taxpayer failed to comply with the first demand, and then when subparagraph (b) is considered, that in addition to a maximum fine of $10,000 a term of imprisonment not exceeding six months is provided, I am of the view that Parliament did not intend that the taxpayer be open to continued demands by the Minister and the imposition of continued penalties of that magnitude.
For these reasons I would allow the appeal.
Appeal allowed.