BECK, J.A.:—This is a stated case—stated by Sanders, Police Magistrate.
The case before the Magistrate was on an information laid for a breach of sec. 8 of the Income War Tax Act, 1917 (Can.), c. 28, as amended 1920 (Can.), c. 49, secs. 11 and 12. That is a provision under which the Minister of Finance may require a return of income and further information. The penalty for a breach is provided in sec. 9 as amended by 1919 (Can.), ce. 55, sec. 7; 1920 Can.), c. 49, sec. 13; and 1921 (Can.), c. 383, sec. 4, which reads as follows:
"‘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 default continues.”
The defendant pleaded guilty.
The Magistrate imposed a fine of $3 for each day’s default.
The question of law stated for the opinion of the Court is substantially, whether the Magistrate had jurisdiction to impose a fine less than $25 for each day’s default.
I am of the opinion that the question should be answered in the affirmative.
Sec. 571 of the Criminal Code enacts that every one who attempts to commit any indictable offence for commmitting which the longest term to which the offender can be sentenced is less than 14 years and no express provision is made by law for the punishment of such attempt, is guilty of an indictable offence and liable to imprisonment for a term equal to one-half of the longest term to which a person committting the indictable offence attempted to be committed may be sentenced.
It can hardly be contended otherwise than that where the Code says that a person convicted of an offence is liable to . . . years imprisonment’’ the meaning is that the number of years stated is 'the longest term to which the offender can be sentenced” or in other words that the provision fixes the maximum term of imprisonment which the Court can impose but that the Court has a discretion to impose any less term of imprisonment.
I think that is clearly so, notwithstanding that in some sections of the Code (e.g., sec. 110) we find the expression: ‘‘liable to imprisonment for any term not exceeding 5 years.’’ So, too, I think that in several sections of the Code which say that a convict shall be "liable to . . . years imprisonment and to be whipped” the Court is not bound to impose the punishment of whipping.
Sec. 1060 says: ‘‘Whenever whipping may be awarded for any offence, the court may sentence etc.”
Imprisonment for a maximum term of years and whipping are forms of punishment obviously subject to division into periods or numbers or degrees. The punishment of death or of imprisonment for life is obviously not subject to any such division. Then if the expression "liable to . . . years imprisonment’’ means the fixing of the number of years as the maximum term of imprisonment, it seems that the like expression ‘‘liable to a penalty of . . . dollars’’, means the fixing of a maximum fine.
Although, as in the case of imprisonment, we find the form of words: "not exceeding’’ used (e.g., sec. 285B. as amended 1910 (Can.), c. 11, sec. 1), the difference in the form of expression is I am satisfied to be accounted for by the different sources from which many of the sections have been taken and not in consequence of an intention on the part of the compiler of the Code to place the different forms of expression in contrast.
See. 1054 reads:
“Every one who is liable to imprisonment for life, or for any term of years, or other term, may be sentenced to imprisonment for any shorter term. Provided that no one shall be sentenced to any shorter term of imprisonment than the minimum term, if any, prescribed for the offence of which he is convicted.”
Sec. 1028 reads:
"Whenever it is provided that the offender shall be liable to different dégrees or kinds of punishment, the punishment to be inflicted shall, subject to the limitations contained in the enactment, be in the discretion of the court or tribunal before which the conviction takes place.”
And sec. 1029 reads :
"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.”
The Criminal Code, in as much as it is a code, is very largely declaratory of both the substantive and adjective law as previously existed and had been the growth of Common Law principles, statutory enactments, judicial interpretation and development and traditional practice. In my opinion the three sections of the Code which I have just quoted are merely declaratory ; except perhaps where the statutory punishment was imprisonment for life, such a term being as I have pointed out by its very nature indivisible; but whether or not, these sections to my mind are intended to make it clear that, unless the statutory enactment providing the punishment expressly prescribes a minimum term (see. 1054) or contains a minimum limitation (see. 1028) or prescribes minimum limits (see. 1029), the punishment is in the discretion of the tribunal imposing the sentence subject to the limitation of the term or amount stated which is thereby constituted the maximum. In order words, where the convict is declared to be liable to a stated term of imprisonment or to a stated amount of fine, that is to be understood as the maximum or longest term or largest fine and the minimum is merely nominal.
As is said in 9 Hals., p. 425, para. 879, tit. Criminal Law”:
"‘The policy of the law is as regards most crimes to fix a maximum penalty, which is only intended for the worst cases, and to leave to the discretion of the judge to determine to what extent in a particular case the punishment awarded should approach to or recede from the maximum limit. ‘
I have written so much because my opinion differs from the decision of Latchford, C.J., in Rex v. Thompson Mfg. Co. (1920) 47 O.L.R. 103, and the majority of the Supreme Court of Nova Scotia in The King v. Smith [1923] 1 D.L.R. 820, 38 Can. C.C. 321, 96 N.S.R. 72. That case was decided by a Court of four, Harris, C.J., dissenting. I prefer the reasoning of the Chief Justice.
As I have already stated, I think the Magistrate acted within his jurisdiction in imposing a less fine than $25 a day and I would so declare.
HYNDMAN, J.A.:—This is an appeal by way of stated case on the application of the Crown by Sanders, Police Magistrate for the City of Calgary.
Defendant was charged with a breach of the Income War Tax Act, 1917, sec. 8, as amended. The accused pleaded guilty and the said Magistrate imposed a fine of $3 for each day’s default (two days being claimed), namely, $6.
It is contended by the Crown that the Magistrate erred in imposing only $3 per day but should have exacted a penalty of $25 for each day’s default.
Sec. 9(1), the section in question, is quoted ante p. 307.
(1) Whether I was required by sec. 9(1) of the Income War Tax Act . . . to impose a penalty of $25 for each day on which default is alleged continued. (X) Whether I was entitled under said Act to exercise discretion in enabling me to impose a penalty of $6 for the two days’ default for which the said Charles Bell was convicted.
The Magistrate held that he had the right to exercise discretion on the ground " " that the penalty imposed in the said section is in the same wording as penalties imposed by some sections of the Criminal Code^ 1 ,
The question involved is the interpretation of sec. 1029 of the Criminal Code which reads [quoted ante p. 309].
That this section is applicable to summary convictions is hardly open to question. The summary conviction part is not a code itself. Part XX in which sec. 1029 is included is not expressed to be applicable to any particular or special part of the Code and in the absence of express terms limiting it should be held to refer to XV. At any rate the authorities in favour of this conclusion are of long standing. Reg. v. Rob idoux (1898) 2 Can. C.C. 19, having been decided in 1898 and Ex parte Kent (1903) 7 Can. C.C. 447, in 1908. If it had not been intended that Part XX was applicable to Part XV I have no doubt but that Parliament would have amended the Code in that respect. The King v. Smith [1923] 1 D.L.R. 820, 38 Can. C.C. 327, relied on by the Crown in respect of the more important phase of the case, is also an authority in agreement with Reg. v. Robidoux, supra.
But for the words "within such limits if any as are prescribed in that behalf’ ‘ there is no doubt of course that a fine less in amount than $25 would be within the Magistrate’s right to impose.
In The King v. Smith, supra, a majority of the Court of Appeal in Nova Scotia held that a fixed penalty of $25 was intended and the imposition of a lesser amount was beyond the jurisdiction of the Justice, Harris, C.J., dissenting.
With great respect to the majority of that Court I am in accord with the reasoning and conclusion of the Chief Justice. The case of Rex v. Thompson Mfg. Co., 47 O.L.R. 103, was cited as an authority. But as pointed out by the Chief Justice no reference was made by Latchford, J., to sec. 1029 and he suggests that the section was never called to his attention. It is not improbable that this was the case and if so materially reduces the weight of authority of his decision.
It would appear to me that it is for just such a case as this sec. 1029 was enacted. It reads that whenever <4 a” fine may be awarded or " 1 a” penalty imposed. Here 4 "a” fine of $25 is authorized. There are no limits set such as "‘a fine of $25 and not less than $5’’. There being no limits prescribed therefore it seems to me that whilst the Court may not award a greater fine than $25 it may impose a smaller one; there is a limit as to the maximum but not as to the minimum. Sec. 1028 applies in the same manner with regard to the length of term of imprisonment. The Code deals with many offences where the wording with regard to the term of imprisonment and amount of fine is precisely the same as in the section of the Income Tax Act under consideration. Lesser terms and fines for these other offences have been imposed as a matter of course ever since the Code was enacted without question such as under secs. 84, 89, 174, 200, 228 (as amended 1909 (Can.), c. 9, sec. 2), 242(a) (as enacted 1913 (Can.), c. 13, sec. 14), 299, 301, 512 and many others. I fail to distinguish between the provision before us and the others to which I have referred.
I would answer the first question in the negative and the second in the affirmative.
Judgment accordingly.