Steinberg v. The King

C.J.C.-This Court was created by the Dominion Parliament in 1875 as a " General Court of Appeal for Canada " by virtue of the power conferred by section 101 of the British North America Act. Purely statutory in its origin,-although the Court is, by the Supreme Court Act, declared to be a court of law and equity, and, by section 35 of that Act, is constituted an appellate court with " civil and criminal jurisdiction within and throughout Canada "-by section 36, criminal causes are expressly excluded from its appellate jurisdiction. It follows that the general appellate jurisdiction of this Court is confined to civil matters and that, as provided for by section 44 of the Act, resort must be had to some special statutory provision enacted by the Dominion Parliament to found an appeal to the Court in any criminal matter. Such a provision is made by section 1023 of the Criminal Code, which reads as follows:

Save the special case provided for by section 1025 of the Code, I know of no other right of appeal in any criminal cause to this Court than that conferred by section 1023. Two conditions must exist in order that an appeal may come within section 1023, viz., the conviction must have been affirmed by the court below, and there must have been dissent by some member of that court on a question of law. In the present case, the conviction was affirmed by a majority of the Appellate Division of the Supreme Court of Ontario (1), two of its members dissenting on what the order of the court declared to be questions of law. Such a declaration was formerly necessary under section 1013 (5) (Davis v. The King (2) ), and, notwithstanding the repeal of that provision in 1930 (Statutes of Canada, c.c. 1930, 20-21 Geo. V, c. 11, s. 28), is found in the order presently before the Court. Presumably, the repeal of subsection 5 escaped the notice of the Registrar and of the solicitors for the Crown and for the defendant who are responsible for the wording of the order; otherwise, it is difficult to account for the presence of the declaratory provision referred to. At all events, it is not binding upon us. At the threshold of the present appeal, we are confronted with the question of the jurisdiction of this Court to entertain it, which depends upon whether or not the dissent rests upon " any question of law " within the meaning of section 1023 of the Criminal Code. Although notice of application for leave to appeal was given, the record before the Court contains nothing, save a passing reference to it by Hodgins J.A., to shew that such application was actually made, or as to its disposition. The appeal to the Appellate Division should probably, therefore, be regarded as having been confined to the subject matter of clause (a) of section 1013, which enables an appeal to be taken de plano " on any ground of appeal which involves a question of law alone." Prima facie, the words " any question of law " found in section 1023 of the Code should be read as referring to "any ground of appeal which involves a question of law alone," as set out in clause (a) of section 1013, and should receive the same construction as that obviously applicable to that clause, i.e., the grounds of appeal to this Court must be confined to " questions of law alone," the appeal to this Court under section 1023 being likewise de plano.

However that may be, some of my learned brothers are of the opinion that this Court lacks jurisdiction to hear the appeal because they are unable to find any question of law whatever in the grounds of dissent stated by the Chief Justice of Ontario, in which Mr. Justice Grant agreed, their S.C.R.]

view being that all matters dealt with by the learned Chief Justice are really matters which it was competent for the jury to pass upon, and depend entirely upon an appreciation of the weight of evidence in regard to the several cueC points discussed. Personally, I am inclined strongly to this But it seems unnecessary to dispose of the case on this ground, having regard to our view upon the merits in respect to which we are unanimous.

Assuming that there may be one or more points of law involved in the grounds of dissent, a careful examination of those grounds and the evidence referred to in them, and of the entire record, including the charge of the learned trial judge as a whole, has satisfied us that, while that charge may not have been ideally perfect, in that the learned judge (as was not at all improper) shewed, especially by his adverse comments on the evidence offered in support of the defence of alibi, that he had been more favourably impressed by the Crown's case than by that of the defence, the meticulous criticism made by the Chief Justice of Ontario of that charge cannot be justified. The defence of alibi was the main, if not the sole, defence raised at the trial and the evidence in support of it was fully presented to the jury, accompanied, it is true, by some comments, which may or may not have discredited that evidence. Such comments, if they had such a tendency, were quite within the competence of the trial judge and did not amount to a withdrawal of the issue as to alibi, or of any evidence in support of it from the consideration of the jury. On the contrary, they were told more than once by the learned trial judge that that issue, and the evidence offered in support of it, were matters exclusively for their consideration.

It is true that the learned Chief Justice concludes his judgment by stating that the charge, as a whole, was unfair to the accused, but he qualified that statement by adding, " For the reasons above mentioned."

Examining these reasons one by one, we fail to find therein anything amounting to a withdrawal of any evidence from the jury, or any direction to the jury contrary to law. On the contrary, while criticising the evidence offered by the defence, at times, perhaps, somewhat severely, the learned trial