Macdonald, J.:—Accused was summarily tried before the Deputy Police Magistrate of Vancouver, on a charge laid by one Saunders, on behalf of the Crown, that on November 1, 1922, and on November 2, 1922, he did fail to make a return of his income for the year 1920, required to be made by sec. 8 of the Income War Tax Act, 1917 (Can.), c. 28, as amended by 1920 (Can.), c. 49, sees. 11, 12.
The charge, on the ground of the lack of territorial jurisdiction, was dismissed. The Crown did not, as has been suggested at the trial before the Magistrate, obtain a stated case, but as an ""aggrieved person” appealed to the County Court. Upon trial by the Judge of that Court, Meehan was fined $50 and costs. He now seeks, through certiorari proceedings, to have the order imposing such penalty, reviewed and reversed on various grounds.
In Rex v. Beamish (1901) 5 Can. C.C. 388, 7 B.C.R. 171, it was held that the decision of a County Court on appeal from a summary conviction is final and conclusive and that a superior Court has no jurisdiction to interfere by habeas corpus. This decision was based upon sec. 752 of the Criminal Code (then Criminal Code, 1892 (Can.), c. 29, sec. 881) as follows:
"‘When an appeal against any summary conviction or order has been lodged in due form, and in compliance with the requirements of this Part, the court appealed to shall try, and shall be the absolute judge, as well of the facts as of the law, in respect to such conviction or order.”
It was coupled with the statement, that being a final judgment of a Judge of the County Court, it was thus the judgment of a "‘Court of Record’’. While such decision might, by analogy to some extent be applicable to this application, still, it is capable of distinction, upon the facts, as in that case the applicant for the writ of habeas corpus has already exhausted by an appeal, one of the remedies open to him upon conviction before the Magistrate. Here, Meehan, who was successful before the Magistrate, seeks redress by certiorari against a decision rendered against him, upon an appeal by the complainant, to the County Court.
The first ground alleged for reversing the judgment of the County Court Judge, was that there was a lack of territorial jurisdiction proved to entitle the Magistrate to try the case, and that this defect still operated, so as to debar the appeal from being heard by the County Court Judge. I think that while the want of such jurisdiction may have existed in the trial before the Magistrate, still, it was only a failure of evidence to support the prosecution in this respect, and that upon the rehearing in the County Court, on appeal, such evidence could be, and was supplied, to destroy any defect that may have existed in the previous trial.
Then it was alleged that, on the face of the proceedings, it was apparent that the charge was laid more than six months after the time, when the matter complained of arose, and was thus contrary to the provisions of sec. 1142 of the Criminal Code, as amended by 1907 (Can.), c. 8, sec. 2, as follows:
"‘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 arose .’’
The note to this section in Crankshaw’s Criminal Code, 5th ed., p. 1263, summarized the enactment as follows: "‘Limitation of prosecutions of offences punishable on summary conviction.”
The information in this case was laid on January 24, 1924, and alleged that the accused on November 1, 1922, and on November 2, 1922, failed to make the return referred to. The particular case, forming the subject of the prosecution arose through an alleged failure of Meehan, to comply with the demand of the Minister of Finance to make a return under sec. 8 of said Income War Tax Act, after 30 days had elapsed. It was provided by the following sec. 9(1) as amended by 1920 (Can.), c. 49, sec. 13, and by 1921 (Can.), c. 33, sec. 4, 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 $25 for each day during which the default continues.”
There is no special limit in the said last-mentioned section, as to the time, within which a remedy should be sought to recover the penalty in a summary manner, and there is no law, tions laid for offences punishable on summary conviction? I do outside such statute, creating the liability against a party so being in default. It is quite apparent that the information laid on January 24, 1924, was for an offence, stated to have been committed in November 1922. If so, is it not contrary to the limit of the six months prescribed by said sec. 1142 of the Code, as amended, within which complaints shall be made or informa- not think that sec. 135 of the Inland Revenue Act, R.S.C. 1906, ec. 51, is applicable to the proceedings taken and a conviction based upon an infraction of any of the provisions of the said Income War Tax Act.
This would be a defect appearing on the face of the record. The County Court Judge, whether possessing the power or not, did not amend the information, as to time or otherwise, nor was any application made for that purpose. In hearing the case on appeal, de novo, he must necessarily have considered the charge, as laid, and imposed a penalty accordingly, for the two specific days, in which Meehan was in default.
Paley on Summary Convictions, 8th ed., p. 139, refers to the necessity of proving every material fact supporting the charge, and assigning a specific date and place to the offence. The evidence should also fix a certain date to the offence in respect of time, viz. :
“As a certain time is usually limited by statute for a summary prosecution before justices of the peace, it was necessary, on that account also, to fix the offence to a certain date, in order that the proceeding might appear to be within the prescribed period; for if that was not shown either by positive proof of the day, or by express reference in the evidence to a date previously mentioned, the conviction could not be supported. ‘ ‘
Rex v. Woodcock (1806) 7 East 146, 103 E.R. 56, is cited as one of the cases supporting this proposition. In that case, through an oversight, the year was not stated, in which the offence was committed, and the headnote sums up the law to be that, ‘‘ Where a penalty is to be sued for before justices of peace, within a certain time after the offence committed, upon a conviction for such offence returned by certiorari into B.R. it ought to appear on the face of the evidence stated in such conviction that the prosecution was in time’’.
The necessity for the prosecution being within the time limited, is emphasized in England by 1848 (Imp.), c. 43, sec. 9, by which it was enacted, that a variance between the information and the evidence, as to the time of committing the offence, was not to be deemed material ‘‘if it be proved that the information was in fact laid within the time limited by law for laying the same’’. Vide: Paley on Summary Convictions, p. 140.
As to an application of sec. 1142 of the Code, as amended, as to the limited time for taking summary proceedings under ‘the Post Office Act, R.S.C. 1906, c. 66. See Rex v. Gourley (1916) 26 Can. C.C. 23.
No formal conviction, imposing the penalty upon Meehan, was signed by the County Court Judge, as there would have been by the Magistrate, had he ordered the payment of a penalty. Assuming, however, that the order allowing the appeal is to be read with the information, so as to form the ‘‘record’’ and show the disposition of the case, then the defect as to the limit of time within which summary proceedings should have been taken is apparent on the face of the record. Such defect is fundamentally irremediable and destroyed the right of the County Court Judge to adjudicate. The result is that the conviction should be quashed.
Another ground submitted, as warranting a reversal of the decision of the County Court Judge, was, that ‘‘mens rea’’ was lacking on the part of Meehan, and that this was an essential, in order to render him liable to the penalty imposed by the statute. This contention, while of considerable weight, was not presented to the County Court Judge for consideration nor passed upon by him in his reasons for judgment. Consideration of this contention would involve discussion, as to what documents constitute the record in an appeal before a County Court Judge, where he gives reasons for his decision, and also as to whether Rex v. Nat Bell Liquors Ltd., 65 D.L.R. 1, [1922] 2 A.C. 128, applied and affected the position. This course, however, would seem needless in the view that I have taken, as to the information being laid against Meehan, beyond the time prescribed for a summary proceeding under the Criminal Code.
In the appeal to the County Court, the appellant was awarded costs. The proceedings against Meehan were not instituted by the Crown and the Crown Costs Act, R.S.B.C. 1924, c. 62, does not apply. I see no reason why I should not give costs to Meehan upon this application, arising out of a proceeding under the Criminal Code, so the order of the County Court Judge, allowing the appeal from the Magistrate, is quashed with costs.
Conviction quashed.