The Queen v. Mackay

the judgment of the majority, said at page 349:- There remains for consideration the grave question to the order that ought to be made by this Court. We have concluded, after full consideration, that, by force of section coupled with the enactments the Supreme Court Act, this Court has authority, not only to order a new trial, or to quash the conviction and direct the discharge of the prisoner, but also to give the judgment which the Court of Appeal for Ontario was empowered to give in virtue of.s. 1016(2);

In Savard and Lizotte v. The King (2), Taschereau J., speaking for the majority, stated at page 33:- La question de droit qui donne juridiction A cette Cour, qui en rdalit6 la saisit du litige, est formul6e par la Cour du Banc du Roi, mais remide qui doit 6tre apport6, quand elle est jug6e fondie, est du ressort de cette Cour, qui peut et doit alors rendre l'ordonnance que requiert la justice. (Manchuk v. The King

The view of Kellock J., on the point, is thus expressed at page 49:- While the existence of a dissent on a question of law, as provided section is a condition precedent for an appeal to this Court, in a case like the present, this Court, once seized of the appeal not limited to the remedy considered appropriate in the dissent, but has complete jurisdiction to direct the remedy which, in its opinion, the Court appealed from ought to have granted.

In Lizotte v. The King (3), Cartwright J., delivering the judgment of the Court, said at the bottom of page 135:- In my opinion, once this court reaches the conclusion, on one or more of the points properly before it, that there has been error in law below it unfettered in deciding what order should be made by the views expressed in the Court of Appeal.

It is true that in each of these cases, the appeal, contrary to what is the situation in the present instance, was entered by the accused and not by the Orown. But the suggestion that this difference as to the person appealing calls for a distinction in law as to the powers of this Court finds, in (1) S.C.R.

[1946] S.C.R. 20 at [1951] S.C.R.

my respectful view, no support, either in the enactments defining them or in the above judicial pronouncements interpreting such enactments.

As to the appropriateness of this order in the present case, I am equally satisfied.

The initial question which this Court had affirmatively to answer in order to reach the conclusion that the appeal should be allowed, was whether, contrary to the view of the majority in the Court below, there was, in the record, legal evidence upon which a jury was entitled to find the respondent guilty. The evidence being wholly circumstantial, the question, in the light of the classical direction to the jury as laid down by Alderson B., in the Hodge's case (1), was, more precisely, whether a jury could be satisfied "not only that those circumstances were consistent with his having committed the act, but also that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person."

In the consideration of the question, the reasonableness of a verdict of guilty based upon such evidence is not, to say the least, a foreign matter. On an exhaustive review of the evidence, it does not appear that the verdict of the jury was unreasonable.

In this view, it would not, in my opinion, be consonant with the diligence 'required in the proper administration of justice in -criminal matters to return this case to the Court of Appeal in order that it may pass on that question, i.e., whether the verdict is unreasonable, which this Court is in as good a position as the former to determine.

The appeal should be allowed and the verdict -of the jury restored.

J. (dissenting):-The respondent was tried jointly with one Woods and one Quinlan before Le Bel J.

and a jury and all three were convicted on the charge that

"on or about the 12th of November, 1952, being armed with offensive weapons, they did unlawfully assault Gordon Robinson, an employee of the Canadian Bank of Commerce.

with intent to rob him of the property the Bank then in his charge or custody as such employee;"

S.C.R.

The respondent and Quinlan appealed to the Court of Appeal for Ontario. Counsel for the Crown stated that in V v his opinion there was not sufficient evidence to support the - .verdict against Quinlan and the Court of Appeal being of the same opinion thereupon allowed his appeal and directed his acquittal. The Court later delivered judgment in the case of the respondent allowing his appeal and directing his acquittal.

Hogg J.A., dissenting, would have dismissed the appeal.

It is common ground that the evidence against the respondent was wholly circumstantial.

During the argument I entertained doubts as to our jurisdiction, which have not been completely dispelled, as it seemed to me to be implicit in Laidlaw J.A. and concurred in by Mackay J.A. that in their opinion the conviction ought to be set aside under s. 1014(1) (a) of the Criminal Code, that this ground was one of fact or of mixed fact and law, and would not be invalidated by reason of its being held, as was done by Hogg J.A., that there was sufficient evidence for the consideration of the jury to justify the refusal of the learned trial judge to -direct a verdict of acquittal.

On this assumption, I am of the opinion that the appeal should be dismissed.

The learned counsel for the Crown at the trial made it clear in his opening address that he was proceeding on the theory that there was evidence from which the jury could properly find that, shortly after the robbery, the respondent was, jointly with Woods, in possession of certain articles of a highly incriminating nature (the most important being a key taken from the bank during the robbery) which were found by the Police in "a hide" reached through a concealed door in a closet opening off a room in the flat of which

Woods was the tenant. As I read the reasons of the Court of Appeal the real difference between the view of the majority and that of Hogg J.A. was as to whether there was evidence from which the jury could infer that the respondent had joint possession of such articles.

After reviewing the relevant evidence Laidlaw J.A. says in part:- After a similar review Hogg J.A. says in part:- The learned Justice of Appeal goes on to decide that there was evidence from which the jury could draw such inference.

I do not think that any useful purpose would be served by my again reviewing the evidence. After a careful consideration of all of it I find myself in agreement with the conclusions of the majority in the Court -of Appeal (i) that there was no evidence from which the jury could infer that the respondent had possession of the incriminating articles in "the hide", and (ii) that, lacking the basis for such a finding of possession, the other circumstances relied upon by the Crown could not be found to be inconsistent with any other rational conclusion than that the accused was guilty.

I would dismiss the appeal.

Appeal allowed and verdict of jury restored.

S.C.R.