The Court -- This appeal by the Crown was filed as of right under s. 693(1) (a) of the Criminal Code , R.S.C. 1985, c. C-46 , which provides that:
693. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3), the Attorney General may appeal to the Supreme Court of Canada
(a) on any question of law on which a judge of the court of appeal dissents; . . .
The respondent did not appear and the Court appointed an amicus curiae to assist in responding to this Crown appeal. We are grateful to the amicus for her submissions.
We have considered the proper application of s. 693(1)(a) and, for the reasons that follow, we are all of the view that we have no jurisdiction to hear this appeal as the dissent in the Court of Appeal ((2000), 38 C.R. (5th) 130) is not a dissent on a question of law within the meaning of that section. Accordingly, the appeal must be quashed.
The respondent was convicted of driving while disqualified, contrary to s. 259(4) of the Criminal Code , and his conviction was set aside by the Quebec Court of Appeal, Chamberland J.A. dissenting. The oral judgment of the trial court was very brief, and led to different interpretations in the Court of Appeal as to some critical findings of fact made -- or not made -- by the trial judge.
Dussault J.A., for the majority, concluded that the trial judge believed the respondent, or at least had a reasonable doubt, as to whether he knew that he was disqualified from driving at the relevant time (para. 22). It is on that basis that he embarked upon an examination of the issues of mistake of fact, mistake of law, and officially induced errors. In his conclusion Dussault J.A. reiterated that [translation] “unless he found that the [accused’s] explanation was not credible, the judge could not base a verdict of guilty on the fact that he failed to carry out certain research” (para. 25).
In contrast, Chamberland J.A. stated at the outset, referring to the reasons of Dussault J.A.: [translation] “. . . I do not view the matter in the same way as he does” (para. 32). Although he appeared to leave open any factual resolution of the issues at the outset of his reasons, Chamberland J.A. stated later that: [translation] “The trial judge’s reasoning, brief though it is, makes it possible, in my view, to say that he found that the mental element of the offence, namely knowledge of the disqualification from driving, was established” (para. 51); [translation] “This finding by the trial judge was entirely justified” (para. 52).
Even though the reasons in the Court of Appeal express differences of opinion of legal issues, the dissent of Chamberland J.A. does not rest on a question of law alone. Rather, his dissent is based, at most, on a mixed question of fact and law and, as such, does not give rise to the application of s. 693(1)(a).
The appeal is quashed.
Cases cited
- 38 C.R. (5th) 130 38 C.R. (5th) 130 ¶ 3
Statutes and regulations cited
-
Unresolved citations