Gatto and Tonellatto v. The King

Mayle. 1*

June 23. AND

HIS MAJESTY THE KING ............ RESPONDENT. ON APPEAL FROM THE SUPREME SCOTIA IN

BANCO

THE

CHIEF JUSTICE.-This is an appeal from the Town oTm Supreme Court of Nova Scotia dismissing by an equal THE division an appeal from the judgment of Mr. Justice Duff CJ. Graham who, at the trial, had rejected a motion to quash the indictment. The indictment is as follows:- Louis Gatto and Alphonse Tonellatto, of the Town of New Waterford, in the County of Cape Breton, Province of Nova Scotia, did on or about the twenty-fourth day of December, in the year of Our Lord, One Thousand Nine Hundred and Thirty-six, at or near Gabarus, in the said county and province, assist or were otherwise concerned in the importing, unshipping, landing or removing or subsequent transporting or in the harbouring of goods liable to forfeiture under the Customs Act, to wit:

spirituous liquors of a value for duty of over Two Hundred Dollars, contrary to subsection 3 of section 193 of the Customs Act, being chapter 42 of the Revised States of Canada, 1927, and amendments thereto, being the form of Statute in that behalf made and provided.

The application to quash proceeded on the ground that the indictment is bad for multiplicity, that is to say, that several offences are charged in one count.

We have carefully considered the able judgment of Mr. Justice Carroll (with whom Mr. Justice Archibald concurred) who thought the appeal should be allowed and the indictment quashed; but have come to the conclusion that the weight of argument is definitely in favour of the view expressed in the judgment of Mr. Justice Doull, who agreed with the view of the learned trial judge.

The charge is laid under subsection 3 of section 193 of the Customs Act. Section 193 is in these words:- 193. (1) All vessels, with the guns, tackle, apparel and furniture thereof, and all vehicles, harness, tackle, horses and cattle made use of in the importation or unshipping or landing or removal or subsequent transportation of any goods liable to forfeiture under this Act, shall be seized and forfeited.

(2) Every person who assists or is otherwise concerned in the importing, unshipping, landing or removing or subsequent transporting, or in the harbouring of such goods, or into whose control or possession the same come without lawful excuse, the proof of which shall be on the person accused, shall, in addition to any other penalty, forfeit a sum equal to the value of such goods, which may be recovered in any court of competent jurisdiction, and, where the value for duty of such goods is under two hundred dollars, shall further be liable on summary conviction before two justices of the peace to a penalty not exceeding two hundred dollars and not less than fifty dollars, or to imprisonment for a term not exceeding one month, or to both fine and imprisonment.

offence and liable on conviction, in addition to other penalties to which he is subject for any such offence, to a penalty not exceeding one TGAO thousand dollars and not less than two hundred dollars, or to imprisonment for a term not exceeding four years and not less than one year, THE KING. or to both fine and imprisonment.

Duf C.

The argument on behalf of the appellant is that under this section " importing " goods of the character to which it relates is one offence, " unshipping" another offence, " landing " another offence, " removing" another offence, " transporting " another and " harbouring " still another, and, accordingly, that the appellants were charged with six offences in the alternative in the one count.

Mr. Justice Doull, with whom Mr. Justice Hall concurred, says:- The fallacy in this argument is that the appellants were not charged with any one of the offences mentioned.

They were charged with an offence created by section 193 of the Customs Act, which, leaving out irrelevant matter for the moment, provides that " Every person who assists or is otherwise concerned in the importing, unshipping, landing or removing or subsequent transportation or in the harbouring of such goods (i.e., goods liable to forfeiture under this Act), where the value of the goods so imported, is Two Hundred Dollars or over, shall be guilty of an indictable offence and liable to a penalty not exceeding One Thousand Dollars and not less than Two Hundred Dollars or to imprisonment for a term not exceeding four years and not less than one year or to both fine and imprisonment.

Section 193 creates a substantive offence, and the guilt of a person charged thereunder depends in no degree whatever upon the fact or otherwise that the acts in which such person is concerned are themselves offences.

We agree with this view and we think it is conclusive of the controversy. Section 854 of the Code applies. We agree also with Mr. Justice Doull and Mr. Justice Hall that the form of the verdict is unobjectionable when it is read in connection with the indictment and the charge of the learned trial judge.