Yip Sing v. The King

There was no dissenting judgment to the affirmance of the conviction, but the formal judgment contains this para- YIP graph:- KINo. The Honourable Mr. Justice McPhillips and the Honourable M. A. MacDonald dissented from the judgment of this Court on the motion Lamont J. to set aside the conviction and order a new trial on the ground of the discovery of the new evidence.

It is upon these disenting judgments on the motion to admit new evidence that the appellants claim a right to appeal to this Court under section 1023 of the Criminal Code, which provides that any person convicted of any indictable offence, whose conviction has been affirmed by an appeal taken under section 1013, may appeal to the Supreme Court of Canada against the affirmance of such conviction on any question of law on which there has been dissent in the Court of Appeal.

We are all of opinion that the dissent in the Court of Appeal on the motion for leave to introduce new evidence is not a dissent against the affirmance of the appellants' conviction on a question of law within the meaning of section 1023.

This Court has therefore no jurisdiction to entertain the appeal. Rex v. Boak (1).

The motion to quash will therefore be granted.

Appeal quashed. SHOPRITE

STORES

AND

ANOTHER

APPELLANTS; (DEFENDANTS)

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AND*

Feb. ROBERT W. GARDINER (PLAINTIFF) . . RESPONDENT. ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME OF

Where one of the grounds of appeal to this Court is misdirection by the trial judge in his charge to the jury, such ground should have been stated with reasonable definiteness in the notice of appeal to the C.J. and Lamont, Cannon and Davis JJ. and Dysart J. ad hoc.

(1) [19251 S.C.R. 525.

;S.C.R.]