R. v. Shea

Cromwell J. — The applicant Crown applies for leave to appeal from an order of the Ontario Court of Appeal granting the respondent an extension of time to serve and file his notice of appeal. As a question about the Court’s jurisdiction to grant leave was raised, this Court ordered an oral hearing. I would dismiss the application for leave to appeal as it raises no question of sufficient importance within the meaning of s. 40(1) of the Supreme Court Act , R.S.C. 1985, c. S-26 . Our review of the jurisprudence reveals that the courts of appeal recognize that there are narrow circumstances where a court can reconsider the decision of a judge sitting alone. We are not persuaded from the record that guidance is required on this question or that the circumstances of this case warrant granting the application.

The respondent was convicted of historical sexual offences. He was sentenced to imprisonment for two years less one day. Some eight and one half years later, the respondent sought from a judge of the Court of Appeal sitting alone an extension of time to serve and file a notice of appeal against conviction. His motion was dismissed. Subsequently, a three‑judge panel of the Court of Appeal granted the motion in the interests of justice. The Crown seeks leave to appeal, challenging the jurisdiction of the Court of Appeal to overturn the decision rendered by one of its judges. The question is whether this Court has jurisdiction to hear the appeal.

The relevant jurisdictional provision is s. 40(1) of the Supreme Court Act which currently reads as follows:

40. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.

Jurisdiction to grant leave under s. 40(1) extends to any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province in which judgment can be had in the particular case. On its face, this language is broad enough to include the order which is the subject of this leave application, subject of course to the requirement that the question involved in the case be of sufficient importance. This conclusion is reinforced by the expansive definition of “judgment” in s. 2 of the Act. I note that while s. 40(3) of the Act, read in conjunction with ss. 691 to 693 of the Criminal Code , R.S.C. 1985, c. C-46 , excludes many criminal appeals from the ambit of s. 40(1), the present application is not so excluded.

The main authority supporting the view that the Court does not have jurisdiction to entertain this leave application is Hind v. The Queen, [1968] S.C.R. 234. In that case, a three-judge panel of this Court held that it did not have jurisdiction to grant leave to appeal from the refusal of a Court of Appeal to grant an extension of time to hear a sentence appeal. The Court relied on Goldhar v. The Queen, [1960] S.C.R. 60, Paul v. The Queen, [1960] S.C.R. 452, and R. v. J. Alepin Frères Ltée, [1965] S.C.R. 359. However, each of those cases has been overruled by subsequent decisions of the Court and, in my view, the time has come to say that Hind itself should no longer be followed.

As noted in Hill v. The Queen, [1977] 1 S.C.R. 827, and subsequently in R. v. Gardiner, [1982] 2 S.C.R. 368, the changes made in 1949 to what is now s. 40 resulted in large part from the change in the role of this Court when appeals to the Privy Council were abolished. Not only was the wording of the provision changed, but the Court, in light of its role as the final court of appeal for Canada, took a broader approach to the interpretation of its appellate jurisdiction which was inconsistent with many earlier decisions, including the cases relied upon by the Court in Hind.

Hill itself was a turning point. In that case, the Court granted leave to appeal to consider whether the Court of Appeal had jurisdiction to lengthen the appellant’s sentence when there had been no cross-appeal by the Crown. As this was a sentencing issue, the jurisdiction of the Court to hear the appeal was squarely before the Court as were its earlier decisions which had taken a narrow view of its jurisdiction to grant leave to appeal from sentencing decisions. The Court in Hill specifically refused to follow Goldhar and held that s. 41(1) (now s. 40(1)) was to have a broad interpretation rather than the narrow interpretation previously attributed to it.

The Court in Hill also noted that Goldhar had been followed in Paul which was in turn relied upon in J. Alepin Frères and R. v. MacDonald, [1965] S.C.R. 831. In considering the proper interpretation of s. 41(1) in light of legislative changes, the Court held at p. 850:

. . . the literal construction [i.e. of the words “final or other judgment”] is preferable not only because in the absence of ambiguity the literal meaning should always be adhered to despite any inconsistencies short of absurdity, but also because any assumption that Parliament did not intend to depart from the previous state of the law is unjustified. Section 41 was enacted substantially in its present form at the time when appeals to the Privy Council were being abolished and this Court was being made truly supreme. The Privy Council had enjoyed unlimited jurisdiction by special leave and it is apparent that the new provision was intended to effect the change from a limited specific jurisdiction to a broad general jurisdiction. To hold that the inconsistencies resulting from this sweeping change indicate the intention of leaving some wide gaps open is, in my view, entirely unwarranted. On the contrary, the enactment of a provision that undoubtedly confers some jurisdiction in criminal matters beyond that existing under the Criminal Code , clearly indicates Parliament’s will to remedy the omission to extend the jurisdiction of this Court in criminal cases when the Privy Council’s jurisdiction in such cases was effectively abolished after the Statute of Westminster.

Thus, while it explicitly stated that fitness of sentence should never be considered by the Court, the earlier jurisprudence indicating that the Court did not have jurisdiction to hear appeals from sentencing decisions was no longer good law. That earlier jurisprudence included the three key decisions relied upon by the Court in Hind.

In 1982, in Gardiner, this Court considered once again its jurisdiction to grant leave to appeal from sentencing decisions and affirmed the breadth of its authority to grant leave under what is now s. 40(1) of the Supreme Court Act . Dickson J. (as he then was) stated at pp. 397-98:

It is incorrect, however, in my opinion, to characterize our justifiable reluctance to consider questions of fitness of sentence as lack of jurisdiction. It is to compound the error to extend the argument of lack of jurisdiction to what are clearly important questions of law arising out of the sentencing process. The function of this Court is precisely that, to settle questions of law of national importance in the interests of promoting uniformity in the application of the law across the country, especially with respect to matters of federal competence. To decline jurisdiction is to renounce the paramount responsibility of an ultimate appellate court with national authority.

. . .

It is important to remember that between Goldhamer and Goldhar significant revisions to the Supreme Court Act had intervened in 1949. The Supreme Court had replaced the Privy Council as the ultimate appeal court for Canada.

With respect to Hill, the Court in Gardiner stated at pp. 402-4:

In Hill all nine judges joined in support of the view that s. 41 [now s. 40] of the Supreme Court Act was intended to confer a broad general jurisdiction, beyond that existing under the Criminal Code . The Court rejected as “entirely unwarranted” the notion dominating the Goldhar line of cases that possible inconsistencies arising from a broad construction of s. 41 indicated Parliamentary intention to leave some wide gaps open.

. . .

. . . Hill gave the quietus to Goldhar and to the abnegation which underpinned that decision and those which followed in its wake. Hill mandated an expansive reading of s. 41(1), the better to enable this Court to discharge its role at the apex of the Canadian judicial system, as the court of last resort for all Canadians.

If policy considerations are to enter the picture, as they often do, there would appear to me to be every reason why this Court should remain available to adjudicate upon difficult and important questions of law in the sentencing process, in particular where there are, as here, conflicting opinions expressed in the provinces. Indeed we are asked, in effect, in this appeal to decide between two opinions of the Ontario Court of Appeal which are in direct conflict. I can see no advantage to litigants or to the orderly administration of justice in closing doors which do not have to be closed.

A similar evolution may be observed with respect to the Court’s jurisdiction to grant leave to appeal when the highest appellate tribunal in the province has refused leave to appeal to it. The Court held in Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639, that it did not have jurisdiction in such cases. However, in 1986, the Court revisited this question and decided in favour of its jurisdiction. In MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, the Court considered its jurisdiction to consider the appellate court’s refusal to grant leave to appeal and overturned Ernewein and expanded upon its reasoning in Hill, Gardiner and subsequent cases thereby indicating that “final or other judgment” provides jurisdiction to this Court to hear any issue it deems to be of sufficient importance as long as resort to s. 40 is not excluded by s. 40(3) of the Supreme Court Act . Wilson J. discussed the question in these terms in MacDonald v. City of Montreal, at pp. 508-9:

The proposition that under s. 41(1) the Court has jurisdiction to intervene even in the case of discretionary decisions of intermediate appellate courts is supported by other provisions of the Supreme Court Act . Section 44 , for example, provides that the Court has no power to hear an appeal from a judgment or order made in the exercise of judicial discretion except where leave to appeal is granted by this Court pursuant to s. 41 of the Act. The section 44 restriction on the Court’s power would clearly apply to appeals arising under s. 38 of the Act, i.e., where a provincial court of appeal had granted leave to appeal to the Supreme Court of Canada. It would also apply to appeals arising under s. 39 of the Act, i.e., where the parties have agreed to appeal a judgment of a lower court directly to the Supreme Court of Canada instead of to the provincial Court of Appeal. Accordingly, in the less usual situations in which leave to appeal to this Court is not granted by a panel of this Court, the statutory jurisdiction excludes appeals from the exercise of judicial discretion. On the other hand, the explicit exception of s. 41 from the s. 44 restriction serves to indicate that where the route to this Court is the more usual one, i.e., where leave to appeal is granted by this Court itself, its jurisdiction is not restricted to non‑discretionary decisions. Rather, under s. 41 of the Act the Court’s jurisdiction is confined only by its own exercise of discretion in determining which decisions of an intermediate appellate court are of sufficient national importance to warrant a grant of leave.

It was stated in R. v. Gardiner, [1982] 2 S.C.R. 368, that while there are many instances in which this Court is justifiably reluctant to intervene in decisions of the courts below, it is incorrect to confuse this attitude of reluctance with lack of jurisdiction. Dickson J. (as he then was) came to his conclusion as to the broad ambit of the Court’s jurisdiction after a thorough survey of its history and a consequent appreciation of its expanded role and increased significance since the days when most appeals were as of right and the Supreme Court of Canada was itself an intermediate appellate court. Given this expansion, the broadly phrased statutory language in which the Court’s jurisdiction was framed, and the role of the Court as the ultimate appellate tribunal, he concluded that in the absence of any irrefutable indication to the contrary, the Court’s jurisdiction should not be restrictively construed. [Underlining added.]

As explained later in Roberge v. Bolduc, [1991] 1 S.C.R. 374, at pp. 392-93:

Any doubt on the issue of jurisdiction is, in my view, resolved by MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, where, as here, the Court of Appeal refused to grant leave to appeal. Although dissenting on the constitutional issue involved, Wilson J. spoke on the issue of jurisdiction at p. 508:

Under s. 41(1) of the Supreme Court Act [now s. 40(1)] this Court retains the discretionary power to interfere with any final or other judgment of the intermediate appellate courts which raises an issue of national importance. This discretion is itself broadly phrased so as to include any case with respect to which “. . . the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it . . . .” While a certain amount of deference to the undoubted competence of intermediate appellate courts to control their own leave granting process is called for, it is equally evident that this Court’s jurisdiction to exercise its own discretion in intervening in such decisions is not statutorily confined. [Emphasis added.]

In 1995, the Court considered R. v. Hinse, [1995] 4 S.C.R. 597. In that case, the Court of Appeal set aside the appellant’s conviction but rather than ordering a new trial, it entered a stay of proceedings. Unhappy with the lack of finality and statement of innocence, the appellant wished to appeal the order of stay of proceedings to this Court. Initially, this Court refused leave to appeal but reconsidered its decision and in doing so, discussed the jurisdiction of the Court as found in s. 40(1). The Court noted the concern that an appellate court, in making an order pursuant to s. 686(8) of the Criminal Code , could overstep its own jurisdiction and make an order in direct contradiction of the underlying judgment. It expressed the need for a broad and liberal interpretation of s. 40(1), stating at paras. 34-35:

Given this troubling concern, I am inclined to adopt a more generous interpretation of s. 40(1) (and a correspondingly more narrow interpretation of s. 40(3)) which would facilitate this Court’s supervisory role in ensuring the underlying consistency of appellate court orders rendered under the procedural regime of the Criminal Code .

For all the foregoing reasons, I am persuaded that an accused or the Crown ought to be permitted to independently seek leave to appeal the legality of an order rendered under s. 686(8) as a “final or other judgment . . . of the highest court of final resort in a province” under this Court’s general jurisdiction under s. 40(1) of the Supreme Court Act .

I conclude my review of the cases with R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442. Although this case involved a publication ban, the Court made a general comment regarding its jurisdiction under s. 40(1) at para. 20:

The Supreme Court Act was passed to allow this Court to serve as a “general court of appeal for Canada”, and s. 40 must be read in light of the purpose of the Court’s enabling legislation. Unless the Court is specifically prohibited from entertaining appeals by s. 40(3) of the Act, it may grant leave to hear any appeal from the decision of any “court of final resort” in Canada. Parliament has seen fit to provide generally for rational routes of appeal in criminal cases. In these cases, we cannot take jurisdiction, nor would we wish to. But a purposive approach to s. 40 requires the Court to take jurisdiction where no other appellate court can do so, unless an explicit provision bars all appeals. Section 40(1) ensures that even though specific legislative provisions on jurisdiction are lacking, this Court may fill the void until Parliament devises a satisfactory solution. [Emphasis added.]

I conclude that under s. 40(1) of the Act, the Court has jurisdiction to grant leave to appeal from an order “of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case” refusing or granting an extension of time to an appellant in an indictable appeal and that the order from which leave to appeal is sought is such an order. However, I would emphasize that the existence of this jurisdiction does not in any way alter the test applicable under s. 40(1), namely that the question “is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it”. It seems to me that only in very rare circumstances would a proposed appeal from an order granting an extension of time for appealing meet this test.

While I would affirm the Court’s jurisdiction to grant leave, I would dismiss the application for leave to appeal without costs.