MCGILLIVRAY ? J. A. :—This : is an application for leave to appeal and for appeal’from the judgment of Henderson, J., whereby he allowed.an appeal by way of a stated case from the judgment of J. M. Seneshen, t.J. Leave to appeal was given ny.’ this Court. j ;
The respondent John Sakellis was charged on information laid on April 25, 1968, that he, on January 16, 1968, in the City of London, failed to comply with Section 47 (1) of the Income Tax Act, RS. C. 1952, c. 148, as amended, in that he did not remit to the Receiver General of Canada on or before January 15,1968, the sum of $60.23 which he deducted and withheld from salaries, wages, or other remuneration paid to his employees during the month of December 1967, as prescribed by the Regulations under the said Act, and thereby committed an offence under Section 131(2) of the said Act.
At trial evidence established that the accused was , during the time in question, an employer carrying’ on’ business in the City of London, that he had deducted the stated sum for income tax from remuneration paid employees, and that the said sum had not been remitted to the Receiver General of Canada on or before January 15, 1968.
No dispute has been raised as to these facts. The charge x was laid within the prescribed limitation period.
The respondent was found guilty and a fine of $200 + was imposed with the alternative of 30 days’, imprisonment.
Upon application to the Provincial Judge t() state a case by way of appeal he formulated the following questions for determination of the superior Court: . .. r 7
(a) Did I err in ruling that the date of the commission of the offence was correctly stated in the information, namely the 16th day of January 1968?
(b) Should I have dismissed the charge on the ground that the offence occurred on or before the 15th day of January 1968?
(c) Did the evidence for the prosecution constitute’ any evidence upon which the said Johr Sakellis could be: convicted of the charge set out in the. information?
Henderson, J. allowed the appeal and answered questions (a) and (b) in the affirmative. He held there to be insufficient evidence before him to permit an answer to question (c) but in view of the answers to questions (a) and (b) none was required.
The relevant sections and Regulations of the Act are as follows :
Section 47 (1) (£) of the ‘Act:
47. (1) Every person paying
(f) fees, commissions or other amounts for services,
at any time in a taxation year shall deduct or withhold therefrom such amount as may be prescribed and shall, at such time as may be prescribed, remit that amount to the Receiver General of Canada on account of the payee’s tax for the year under this Part.
Income Tax Regulations, P.C. 1954- 1917, SOR 1955, Vol. 2, p. 1872, Section 108(1) :
108. (1) Amounts deducted or withheld under the provisions of subsection (1) of section 47 of the Act shall be paid to the Receiver General of Canada on or before the fifteenth day of the month next, succeeding the month in which the employer paid the remuneration.
Section 131(2) of the Act:
131. (2) Every person who has failed to comply with or contravened subsection (1) of section 47, subsection (5) of section 123, section 125 or section 126 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.
In his reasons, when allowing the appeal, Henderson, J., stated :
The Act under which the accused was charged is an Act where dates and limitations are to be strictly adhered to — that is the whole tenor of the statute. To find the accused guilty of the offence charged, it would be necessary to interpret the word “on” to mean the same as the word “by”. . . .
Interpret “on” by any other meaning would prejudice the accused in his pleading.
With all deference to the contrary opinion of Henderson, J. I reach a different conclusion. Income Tax Regulations, Section 108(1), requires the amount to be paid on or before the loth day of the month following the month in which deduction from salary was made. The offence could not be committed within that 15 days. It can only be established after this period has elapsed. It then exists and must continue to exist until payment is made.
In R, v. Donen, [1925] 1 D.L.R. 1141; 43 C.C.C. 271; 34 Man. R. 597, the Court of Appeal dealt with a prosecution under the Income War Tax Act, 1917 (Can.), c. 28, when the accused had failed to answer a demand from the Minister on March 9, 1922, for an income return covering the 1920 period. An information was laid on June 20, 1924 that he did on March 13 and 14, 1924 fail to make the return. The Magistrate held that, as the complaint was not lodged within six months after the expiration of the time in the demand notice, Section 1142 of the Criminal Code applied and no prosecution lay. Fullerton, J.A. with whom Perdue, C.J.M. and Dennistoun, J.A. concurred, after a review of the authorities, held the offence to be a continuing one, and as a consequence so long as the offence continued and within six months thereafter an information might be laid. As a result he held the limitation in the Criminal Code had no application in that case.
Upon similar grounds McRuer, C.J.H.C. in À. v. Smith, [1958] O.W.N. 277; 120 C.C.C. 241; 28 C.R. 48, held, in two charges of failure to comply with a demand made under Section 44(2) of the Income Tax Act within the time prescribed, that the Magistrate was in error in finding duplication in the two charges. The charges were for the same offence, one being for failure on July 17, 1957 to comply with the demand and the other in identical terms for failure to comply on July 18, 1957. As the offence was a continuing one he held each information to be valid.
I have examined the authorities referred to in R. v. Donen as well as others. Apart, however, from any authorities I would have no hesitation in reaching the conclusion that the offence herein is a continuing offence commencing from the expiry of the prescribed 15 days. The information in this instance was that the accused was in default on the 16th day, the earliest time at which he could be said to be in default. I find no fault under the circumstances in the use of the word ‘‘on’’ rather than ‘by” in the information.
Having reached that conclusion I would allow the appeal and direct that the answers of the Court below be varied to read as follows:
(a) No
(b) No
(c) Yes.