Majority
A charge of conspiracy to commit offences under the Immigration Act is one of criminal conspiracy under the Criminal Code and is neither Conso in form nor in substance a charge under the Immigration Act. Consequently the provisions of the latter Act as to time-limits for THE instituting prosecutions have no application to such a charge.
Judgment of the Court
THE JUSTICE:-This is an appeal by the accused against the judgment of the Court of Queen's Bench (Appeal Side), Province of Quebec, setting aside the judgment of Judge W. Proulx, a Judge of the Sessions of the Peace for the District of Montreal, which latter judgment had granted a motion to quash the indictments. preferred against the appellants. The first argument on their behalf is that Judge Proulx did not acquit them and that there was no right of appeal by the Crown from his. decision. It might be pointed out that, if this argument were correct, there would be no appeal to this Court, because under s. 597 of the Criminal Code the accused would not be persons who had been acquitted of an indictable offence and whose acquittal had been set aside by the Court of Appeal.
However, the appellants' first contention cannot prevail. The following appears at the end of the formal judgment of Judge Proulx:
His reasons conclude:
His report to the Court of Appeal ends:
j'ai Reading all of these documents in their entirety I agree with the Court of Appeal that the judgment of Judge Proulx was a final judgment quashing the indictment because he considered that all criminal proceedings as a result of the alleged acts of the accused were prescribed. I also agree that it was not a judgment on procedural grounds owing to a defect in the indictment and therefore if the accused were charged subsequently with the same offences as those embodied in the indictment, they could plead autrefois acquit. It was a decision on a question of law alone and being a judgment or verdict of acquittal was appealable under s. 584 of the Code. As to the grounds upon which Judge Proulx proceeded, there was no obligation on the Crown to lay charges under the Immigration Act, but it was entitled to prefer an indictment, as it did, charging conspiracy which could be laid only under the Code. Any period of prescription that might apply under the Immigration Act is not applicable to charges of conspiracy under the Code.
The appeal should be dismissed but the judgment of the Court of Queen's Bench (Appeal Side) should be amended by striking out the last paragraph thereof* and inserting in lieu thereof the following:
Appeal dismissed subject to a variation in the judgment. Attorney for the appellant Lattoni: J. Cohen, Montreal.