Hyperlawhypertext legal database Attorney-General for Ontario and Display Service Co. v. Victoria Medical Building et al. [1960] SCR 32

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Attorney-General for Ontario and Display Service Co. v. Victoria Medical Building et al.

[1960] SCR 32 Court SCC Decision date 1959-11-30 English

Contents
Montrial par I'appelante pour le bois qu'elle vend h ses clients. I s'agit d'un prix d6termin6 et non d'un prix sus- C. ceptible de fluctuations.
Si, comme je le crois, les relations entre les parties ont 6t6 J.chang6es radicalement h partir du janvier, et si l'intim6 est devenu le vendeur et l'appelante 1'acheteuse, le premier a en cons6quence regu tout ce qu'il pouvait exiger lgalement. En effet, A la date du 16 janvier 1950, il avait regu un exc6dent sur les quantit6s de bois livr6, et depuis cette da'te, il a 6t6 pay6 suivant les termes de la nouvelle entente. L'appelante n'avait pas l'obligation de lui d6voiler, comme antirieurement, les prix auxquels elle vendait son bois h Montr6al ou ailleurs. C'6tait "res inter alios acta". L'intim6 devait se contenter des prix stipul6s f.a.b. St-Paulin, et il les a pergus.
L'erreur des tribunaux inf6rieurs a 6t6 de ne pas con sid6rer l'addition au contrat principal comme une alt6ration fondamentale A la premibre entente, et de voir dans ses termes simplement 1'6tablissement d'un prix de "plancher". Avec ce d6part que je crois erron6, on avait raison de dire que 1'appelante devait divoiler A l'intim6 les prix qu'elle recevait pour le bois, et payer en consequence. Mais, A mon sens, tel n'est pas le cas qui se pr6sente.
L'intim6 a pr6tendu, malgr6 l'objection du procureur de 1'appelante, ajouter par une preuve testimoniale des clauses qui ne se trouvent pas au contrat. Ces clauses auraient pour effet d'6tablir que, malgr6 "I'addition" de janvier 1950, les termes du premier contrat subsistaient, et que les prix nouvellement fix6s n'6tablissaient qu'un "plancher", un minimum, qui ne privait pas l'intim6 de percevoir 1'exc6dent s'il y en avait.
Je crois que cette preuve qu'on a tent6 de faire est inadmissible vu les termes pr6cis de l'art. 1234 C.C. qui stipule que dans aucun cas la preuve testimoniale ne peut 6tre admise pour contredire ou changer les termes d'un 6crit valablement fait. Dans le cas pr6sent, l'6crit du 16 janvier 1950 est un 6crit valablement fait, qui est complet par lui-mime. Quand les termes d'un contrat sont clairs et non ambigus, aucune preuve testimoniale ne peut 6tre reque pour interpreter le document, ou pour d6terminer ce que les parties avaient l'intention de dire mais que, malheureusement, elles n'ont pas consign6 dans cet 6crit.
M~me si cette preuve 6tait admissible, ce que je ne crois DupuIs pas, je suis d'opinion que la preuve tent6e par 1'intim6 pour Taschereau J. modifier les termes du contrat 6crit est insuffisante. Au cours de 1'examen de ce dossier, je me suis demand6, h maintes reprises, pourquoi l'appelante qui, le 16 janvier, 6tait cr6ancibre de 1'intim6, aurait ainsi 6tabli ce plancher, que d'ailleurs "I'addition" ne r6vile pas. Elle empirait 6videmment, par cet acte, sa situation en consentant A payer 1'intim6 un prix supdrieur h celui qu'elle pouvait ellememe recevoir, et s'exposait gravement a ne pas pouvoir percevoir le surplus d'avances au montant de $5,188.41 consenties jusqu'h la date du 16 janvier 1950. Privoyant sans doute une hausse dans les prix du march6 du bois, elle a voulu se prot6ger aux fins de percevoir ce remboursement des avances qu'elle avait consenties.
Quand l'intim6 a sign6 les quittances et 6tats de compte en janvier, f6vrier, mars, avril, mai, juin et juillet 1950, et quand il a accepth en juillet 1950 le chique endoss6 "en riglement final", je suis persuad6, malgr6 ses d6n6gations, qu'il savait bien qu'il avait cess6 d'6tre le principal h un contrat d'agence, pour devenir simplement le vendeur de son bois h un prix d6termin6 d'avance f.a.b. St-Paulin. C'est un nomm6 McMaster, ancien employ6 cong6di6 par l'appelante, qui s'est rendu h St-Paulin h deux reprises pour rencontrer 1'intim6 et qui, en outre, 'a invit6 h sa maison sur la rue Atwater, h Montr6al, pour 1'informer qu'il 6tait pay6 au prix du "plancher", et que le bois avait 6t6 vendu A un prix superieur. C'est ce M. McMaster qui, suivant son propre t6moignage, a quitt6 1'emploi de l'appelante "in anger" et qui a convenu avec 1'intim6 de recevoir 50 pour cent des b6n6fices 6ventuels du prochs A 6tre intent6. Comme M. le Juge Montgomery, je crois que ce t6moignage de McMaster doit 6tre regu avec une extreme r6serve, et j'ajoute s'il ne doit pas 6tre totalement ignor6. N'est-ce pas comme cons6quence de ces conversations avec McMaster, personnage financibrement int6ress6 & l'issue du procks, qu'il faut chercher la cause d6terminante de la r6clamation de 1'intim6.
Malgr6 qu'il ffit mis au courant par McMaster, I'intim6 a sign6 quand mime les onze riglements bi-mensuels oil apparaissent les prix d6terminds A l'addition de janvier 1950, et il endosse, le 21 juillet de la mime annie, le chbque .en riglement final. Je crois que 1'intim6 est mal venu de se presenter devant les tribunaux pour dire qu'on lui a repr6sent6 que 1'6tat de choses original n'avait pas 6t6 chang6. Les nombreuses signatures qu'il donne, les riglements qu'il consent, tous conformes h "I'addition" de janvier 1950, contredisent les pr6tentions qu'il a voulu soutenir devant la Cour. Je suis port6 A penser que l'intim6, qui est un homme d'affaires, a plus d'intelligence qu'il ne semble vouloir manifester. La conclusion qui s'impose est que 1'6crit du 16 janvier 1950 est un amendement fondamental au contrat original; qu'il a 6tabli depuis cette date des relations d'acheteur et de vendeur entre les parties et que rien n'indique qu'A 1'addition de janvier 1950 un prix minimum a 6t6 fix6; que l'intim6 a regu tous les montants auxquels il pouvait pr6tendre et qu'il n'a pas le droit d'exiger les prix pour lesquels le bois a 6t6 vendu h des tiers par I'appelante. Pour ces raisons, et pour celles donn6es par M. le Juge Montgomery, je suis d'opinion que l'appel doit 6tre maintenu et Faction rejet6e avec d6pens de toutes les Cours. Appeal allowed with costs. Attorneys for the defendant, appellant: Walker, Chauvin, Walker, Allison & Beaulieu, Montreal.
Attorney for the plaintiff, respondent: H.
Baker, Montreal.
JACK GOLDHAR .......................
HER MAJESTY THE QUEEN ......... 1953-54(Can.), c. ss. 408(1)(d), 697(l)(b)-Criminal Code, R.S.C. 1927, c. 36, ss. 573, 1023-The Supreme Court Act, R.S.C. 1952, c. 259, GOLAR 8. 41.
The appellant was convicted of conspiracy to traffic in drugs and sentenced THE to 12 years imprisonment, pursuant to s. 408(1)(d) of the new Criminal Code, which came into force during the period of time within which the offence was committed. His appeal against the conviction was dismissed by the Court of Appeal and leave to appeal to this Court from that judgment was refused. His subsequent appeal against the sentence was also dismissed by the Court of Appeal, and from that judgment he applied to this Court for leave to appeal against the sentence on the question of law as to whether s. 408(1)(d) was applicable, since, if it was not, the maximum sentence for a conspiracy not specifically named in the former Code, as found in s. 573, was 7 years. The Crown submitted that this Court was without jurisdiction to grant leave. The appellant alleged an alteration of the prior state of the law.
Held (Cartwright J. dissenting): This Court has no jurisdiction to entertain an appeal against a sentence imposed for the commission of an indictable offence.
Per Taschereau, Fauteux, Abbott and Ritchie JJ.: The question whether this Court had any jurisdiction to entertain such an appeal has always been negatively answered prior to the coming into force of the new Code. Goldhamer v. The King, [19241 S.C.R. 290 and Parthenais v. The King (1945) (unreported). An intent of Parliament to depart from this state of the law could not be found either under the provisions of the new Code or under s. 41 of the Supreme Court Act. As to the new Code. It is clear that no change has been made as to the appellate provisions related to appeals to the Court of Appeal in indictable offences. The distinction between an appeal against a conviction and an appeal against a sentence still obtains. Both appeals are still separate appeals as to substance and procedure and lead to two distinct judgments. As to appeals to the Supreme Court of Canada, the true meaning of the expression "whose conviction is affirmed by the Court of Appeal" in s. 597(1)(b) must be ascertained by reference to the appellate provisions related to an appeal to the Court of Appeal. On these provisions, the "conviction" which the latter Court may affirm is a conviction within the narrow meaning of Goldhamer v. The King. "The judgment appealed from", referred to in s. 597(1)(b), is the judgment against which an appeal is given under s. 597(1); and, as nowhere but in the opening words of the section is an appeal given, that judgment must be a judgment capable of coming within the language of the opening words. Although the words "in affirmance of the conviction", which were in s. 1024 of the former Code, do not appear in s. 597(1), they are clearly and necessarily implied in s. 597. No significance could be attached to the fact that s. 1024 provided for an appeal at large while under s. 597 the appeal is restricted to pure questions of law. Because it may be said in certain cases that an applicant comes within the description of a person to whom a right of appeal is given in the opening words of s. 597, it does not follow that his application does so or in other words, that the right given is a right to appeal against a conviction in the wider sense.
As to s. 41 of the Supreme Court Act. The inconsistencies flowing from the interpretations put by the appellant on s. 41, clearly indicate that it was never intended by Parliament that the right of appeal THE given under this section would extend to indictable offences, as distinguished from non indictable offences. This is supported by the fact that, under the Code, the appeals to this Court with respect to indictable offences are dealt with in the appellate provisions related to appeal to this Court under the Code. It is further supported by the clear contradiction which would exist between the special appellate provisions under the Code and the general appellate provisions under s.
Per Cartwright J., dissenting: The application falls within the literal meaning of the words in s. 597; and the terms of ss. 583, 592 and 593 do not appear to require the Court to construe s. 597 in the limited sense contended for by the respondent. The case of Goldhamer v. The King was distinguishable. One of the primary purposes of Parliament in enacting s. 597 in its present form would be pro tanto thwarted if it were held that this Court was without jurisdiction to deal with a pure point of law as to whether a sentence imposed was or was not authorized by statute. No sufficient reason has been advanced for interpreting s. 597 so as to refuse a jurisdiction which appears to be conferred by the words of that section construed in their ordinary and literal meaning.
Another line of reasoning leads to the same conclusion. Reading s. 597 of the Code and s. of the Supreme Court Act together and as explanatory of each other, as should be done since they are in pari materia, the word "conviction" in both sections should be read "with a signification including the sentence", giving thereby effect to the apparent intention of Parliament that the jurisdiction of this Court in criminal matters should be strictly limited to points of law and yet wide enough to assure uniformity in the interpretation of the criminal law throughout the country.
APPLICATION for leave to appeal from a judgment of the Court of Appeal for Ontario, affirming a sentence. Application refused, Cartwright J. dissenting.
M. Robb, Q.C., for the appellant.
J. D. Hilton, Q.C., for the respondent.
FAUTEUX J.:-This is a motion for leave to appeal to this Court against a sentence, imposed by the trial judge and subsequently confirmed by a judgment of the Court of Appeal for Ontario, on a conviction for an indictable offence.
Goldhar was indicted for having, in the city of Toronto and elsewhere in the province of Ontario, between the 15th of March and the 6th of August, 1955, conspired with others to commit the indictable offence of having in their possession a drug for the purposes of trafficking. On this charge, he was found guilty by a jury, on the 4th of May, 1956, and thereupon sentenced to twelve years imprisonment, pursuant to s. 408(1) (d) of the Criminal Code,
2-3 Elizabeth II, hereafter referred to as the new Code.
During the period of time, within which the offence charged was committed, i.e. on the first day of April 1955, the new Code came into force; and this fact gives rise to the question of law on which leave to appeal is now sought.
As formulated, on behalf of the applicant, the question is whether s. 408(1) (d) of the new Code is applicable to the conspiracy committed, since, if it is not, the maximum sentence for a conspiracy not specifically named in the
Criminal Code, R.S.C. 1927, c. 36, is found under s. 573 of the said Statute, namely seven (7) years.
The point of law raised is undoubtedly one of substance and may possibly, depending particularly of the evidence in the record, affect the judgment rendered by the Court of Appeal, if leave is granted. However, the primary and major question to be considered and determined is whether this Court has any jurisdiction to entertain an appeal against a sentence imposed for the commission of an indictable offence.
That such a question has always been negatively answered, prior to the coming into force of the new Code, is not open to question.
In Goldhamer v. His Majesty the King', the appellant, having been found guilty of a criminal offence, was sentenced to pay a fine of four hundred dollars or to be imprisoned during three months in default of payment.
After the fine had been paid, the Attorney-General appealed against the sentence, under s. 1013 Cr. C.; and by a majority judgment, the Court of Appeal, in addition to the fine, condemned the appellant to be imprisoned for a period of six months. On a further appeal to this Court, it was decided that there was no jurisdiction in the Supreme
Court of Canada to entertain an appeal in the matter of sentence, the right of appeal being restricted to an appeal against the affirmance of a conviction. At the time of the decision of this Court, the relevant part of s. 1024, under J. which the appeal purported to be based, read as follows: It is pointed out, in the reasons for judgment of this Court, that the word "conviction" in s. 1024 cannot perhaps be said to be capable of only one necessarily exclusive meaning, but can be capable of being employed with the signification including the sentence. The majority, however, felt compelled to ascribe to the word the less technical sense which excludes the sentence as distinguished from the conviction. The sole reason for this interpretation and the decision consequential thereto is exclusively founded on the clear distinction made in s. 1013, for the purposes of appeal in indictable matters, between an appeal against a conviction and an appeal against a sentence. The appellant in that case did not question the appropriateness of the measure the sentence but challenged, as a matter of law, the right of the provincial Court of Appeal to interfere with a sentence which had already been satisfied when the appeal to that Court was taken by the Attorney-General. The nature of the ground, however, is entirely foreign to the ratio decidendi. It is the right of appeal itself which was found not to have been given by Parliament, in the matter of sentence.
Some twenty years after this decision, again the question arose in the case of Parthenais v. The King'. Parthenais had entered an appeal in this Court against a majority judgment of the Court of Appeal which had increased the sentence imposed upon him on a plea of guilty to the. charge iNot of an indictable offence. At that time, the matter was governed by what was then s. 1023 Cr. C., the relevant part of which read as follows:
The point of law, uponi which there was a dissent, was whether the Attorney-General,-who took a more serious view of the facts of the case than did the Crown prosecutor, in first instance,-could appeal to the Court of Appeal against a sentence imposed upon a plea of guilty which had been entered by the accused on the condition that the sentence, pre-agreed between his counsel and counsel for the Crown, would be passed by the trial judge. The distinction between an appeal against a conviction and an appeal against a sentence, which had brought about the decision of this Court in Goldhamer, supra, was still present in the appellate provisions related to appeals to the provincial Courts. This Court followed the same course and, on the 2nd of October, 1945, quashed the appeal for want of jurisdiction to entertain an appeal against a sentence.
Such was the state of the law when the new Code was enacted in 1954. The question is therefore whether an intent of Parliament to make such a substantial departure from this state of the law, as would represent the creation of a new right of appeal to this Court, can be found, as is suggested, either under the relevant provisions of the new Code or under s. 41 of the Supreme Court Act. In approaching the question, one must be mindful that a legislature is not presumed to make any substantial alteration in the law beyond what it explicitly declares, either in express terms or by clear implication. This presumption against the implicit alteration of the law is not, I think, of lesser moment where the new law, under which the alteration is claimed, is of a nature such as that of the one here considered, to wit, a revision of a Code.
The new Code. With respect to the appellate provisions related to appeals to the Court of Appeal in indictable offences, it is clear that no change has been made, in that, the distinction between an appeal against a conviction and an appeal against a sentence still obtains. Both appeals are Still separate appeals as to substance and procedure, and Fauteux J lead to two distinct judgments. With respect to the appellate provisions related to appeals to the Supreme Court of Canada, the section of the new Code, relied on by counsel for the applicant as a basis for his application and under which the alteration of the prior state of the law is claimed, is s. 597(1) (b), which reads as follows:
The opening words of that section make it equally clear that the right of appeal to this Court'is given to one who is (i) a person who is convicted of an indictable offence and (ii) whose conviction is affirmed by the Court of Appeal. The true meaning of the expression, in (ii), "whose conviction is affirmed by the Court of Appeal" must, of necessity, be ascertained by reference to the appellate provisions related to an appeal to the Court of Appeal. And again, on these provisions, the "conviction", which the latter Court may affirm, is a conviction within the narrow meaning ascribed by this Court in Goldhamer, supra. If, contrary to that decision, the word was here given the wider sense which includes the sentence, it would follow that one "whose sentence is affirmed by the Court of Appeal" would have a right of appeal to this Court, while one, whose sentence is not affirmed but increased by the Court of Appeal, would not.
Adverting now to the provisions of (a) and (b) of s. 597(1). These provisions are related to the right of appeal given under the opening words. In (a), they restrict the right of appeal to questions of law. And, in (b), they condition the exercise of the right to the bbtention of a leave and prescribe the delay within which, after "the judgment appealed from is pronounced", such leave must be granted. "The judgment appealed from", referred to in (b), is the judgment against which an appeal is given under s. 597(1);
and, as nowhere, but in the opening words thereof, is an appeal given, "the judgment appealed from" must be a judgment capable of coming within the language of the opening words. On this language and for the reasons just mentioned, such a judgment can only be a judgment in affirmance of a conviction and not related to the matter of sentence.
Having considered the following points advanced in support of the application, I must say, with deference, that I am unable to find that they are valid.
. Reference is made and significance is attached to two points of difference emerging from a comparison of s. 1024, under which Goldhamer was decided, with s. 597(1) of the new Code. The first is that the words "in affirmance of the conviction", which were in the former section, do not appear in the latter. In my view and for the reasons just mentioned, these words are clearly and necessarily implied in s. 597. The second point is that s. 1024 provided for an appeal at large while under s. 597, the appeal is restricted to pure questions of law. The range or nature of the questions raised.in support of an appeal is foreign to the rdtio decidendi in Goldhamer. Furthermore, when the decision in that case was, twenty years later, followed in Parthenais, the appeal to this Court was then, under the relevant section, s. 1023, as it is to-day under s. 597(1), restricted to questions of law.
It is then sought to ascribe to the word "judgment" in the phrase "the judgment appealed from is pronounced", the usual meaning given to the word in a law dictionary.
This, I think, one is precluded to do for, in the context of s. 597, and in the light of the other sections of the Code to which this particular section is inextricably related, a judgment as to conviction and a judgment as to sentence are, for the purposes of appeal, two separate judgments, each having a distinct technical meaning under the Code.
It is also suggested that the applicant having been convicted of an indictable offence and his conviction having been affirmed by the Court of Appeal,-as, in fact, it was finally, prior to the launching of his appeal to that Court, against the sentence,-his application falls within the literal meaning of s. 597(1) (b). While, because of these circumstances, it may be said that the applicant comes within the description of a person to whom a right of appeal is given in the opening words of the section, it does not follow that the application he makes does so, or that, in other words, the right given to such a person is a right of appeal against a conviction in the wider sense, as distinguished from a conviction in the narrow technical sense given in Goldhamer. The premise upon which this suggestion is predicated has no relevancy to the nature of the right of appeal which is given under the section. It may also be added that, if the interpretation contended for were accepted, in the result, Parliament would have given a right of appeal against sentence to a person coming within the language of the opening words of the section but would have refused a similar right to a person who, having appealed to the Court of Appeal only against his sentence, and not against his conviction, could never possibly come within that language; for the Court of Appeal cannot affirm an unappealed conviction.
Finally, it is said that in enacting s. 597, in its present form, one must find an apparent intention of Parliament to ensure uniformity in the interpretation of criminal law throughout Canada and that such a purpose would be, pro tanto, thwarted, if we were to hold that we are without jurisdiction to deal with a pure point of law as to whether a sentence imposed is or is not authorized by a statute. With respect to sentence, as distinguished from conviction, I am quite unable, for the reasons above indicated, to find such an intention of Parliament in s. 597. It also appears that such an intent is negatived by the other appellate provisions related to appeals to this Court. Under these appellate provisions, the right of appeal, given to the Attorney- General, namely in s. 598, does not include the right to appeal in the matter of sentence. For the implementation of this alleged intent and purpose of Parliament, it is no less essential that a right, similar to the one contended for on behalf of the applicant, be given to the Attorney- General; but it has not been given.
For these reasons, I am clearly of the view that nowhere in the relevant provisions of the new Code, did Parliament indicate, either in express terms or by clear implication, any intent to alter the prior state of the law, under which Fauteux J. there is no appeal to this Court in the matter of sentence. - Section 41 of the Supreme Court Act. The relevant parts of that section read as follows:
41. (1) Subject to subsection (3), an appeal lies to the Supreme Court with leave of that Court from any final or other judgment 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.
(2) Leave to appeal under this section may be granted during the period fixed by section 64 or within thirty days thereafter or within such further extended time as the Supreme Court or a judge may either before or after the expiry of the said thirty days fix or allow.
(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.
To support applicant's contention that s. 41 confers jurisdiction to this Court to entertain appeals in matters of sentence, imposed in respect of indictable offences, the provisions of subsection (3) are assumed to be subordinated to those of subsection (1)-in that, the latter states the principle and the former, the exception-; and, on that assumption, the following interpretation is given.
If matters of sentence are held to come within the language of subsection (3), then, by force of the latter, they are excepted from the operation of subsection (1); and, for this reason alone, this Court has no jurisdiction. If, on the contrary, matters of sentence are held not to come within the language of subsection (3), then, not being excepted from the operation of subsection (1), there is jurisdiction in this Court.
In both alternatives, however, this interpretation leads to inconsistencies.
In the first alternative, while a judgment affirming a sentence would be excepted from the operation of subsection (1) by force of subsection (3), there are no words in the latter capable of excepting a judgment increasing the sentence. And, in the result, this Court would have jurisdiction to entertain an appeal when the sentence has been increased, but would be without jurisdiction when it has J. been affirmed; and this, even if in either case the question raised in support of the appeal be whether the sentence is authorized or not by statute.
In the second alternative where, on the interpretation of subsection (3), this Court would have jurisdiction in the matter of sentence, the following inconsistencies would ensue. Contrary to what is the situation with respect to every authorized appeal to this Court in criminal matters, the appeal against sentence under s. 41 would not be restricted to pure questions of law but would extend to questions of mixed law and facts and to pure questions fact. In addition, the delay within which leave to appeal must be granted, being determined by subsection (2), would be, in the matter, far in excess of the delay prescribed for the proper administration of justice in criminal matters, for the obtention of leave to appeal to this Court against a conviction or an acquittal.
I cannot think that Parliament ever intended or even contemplated these inconsistencies flowing from either one of these interpretations. And this, in my view, clearly indicates that it was never intended by Parliament that the right of appeal given under s. 41 would extend to indictable offences, as distinguished from non indictable offences. This view is supported by the fact that, under the Criminal Code, the appeals to this Court with respect to indictable offences are, contrary to what is the case with respect to non indictable offences, dealt with in the appellate provisions related to appeals to this Court under the Code. It is further supported by the clear contradiction which would exist, on the view that Parliament intended to include indictable offences in s. 41, between the special appellate provisions under the Code and the general appellate provisions under s. 41 of the Supreme Court Act.
Parliament is presumed to be consistent with itself and the language of every Act must be construed as far as possible in accordance with the terms of every other statute which it does not in express terms modify in a way avoiding contradictions. It has been indicated above that, if s. 597 was interpreted as giving a right of appeal as to sentences, inconsistencies would result and that, on the contrary interpretation, there would not be any, the state of the law remaining what it was prior to the enactment of the new
Code. And it has also been pointed out that inconsistencies would flow from the suggested interpretation of s. 41. In these views, one cannot find, either under the Code or under s. 41 of the Supreme Court Act, the explicit language required to indicate an intent of Parliament to alter the prior state of the law as to appeals to this Court in the matter of sentence imposed in respect of indictable offences.
With great deference, I find it impossible to reconcile the two Acts by interpreting the word "conviction" in both subsections 41(3) and 597(1) (b)
as including sentence in indictable offences, for each one of the subsections cannot be so interpreted without leading to inconsistencies.
Under the former Code, appeals against sentence have always been left to the final determination of the provincial
Courts and there is nothing, under the new Code or s. 41 of the Supreme Court Act, indicating a change of policy in the matter, with respect to indictable offences.
This Court is without jurisdiction to entertain the present application which I would dismiss.
This being a matter of jurisdiction, all the Members of the Court have been consulted and I am requested by the
Court to say that all, excepting our brother Cartwright, are in agreement with these reasons.
J. (dissenting) :-This is an application for leave to appeal to this Court from a judgment of the Court of Appeal for Ontario, pronounced on May 29, 1959, dismissing the applicant's appeal against the sentence imposed upon him by His Honour Judge Macdonell on May 4, 1956.
The appeal to the Court of Appeal was brought pursuant to an order of that Court made on April 29, 1959, extending the time for applying for leave to appeal and granting leave to appeal against the sentence mentioned.
On April 27, 1956, the accused was convicted before His Honour Judge Macdonell at the sittings of the Court of THE General Sessions of the Peace for the County of York on Cartwright J. the charge that:
Jacob Rosenblat, Jack Goldhar (the applicant), Leonuell Joseph Craig and Hannelore Rosenblum, at the City of Toronto, in the County of York, and elsewhere in the Province of Ontario, between the 15th day of March and the 6th day of August, in the year 1955, unlawfully did conspire together, the one with the other or others of them and persons unknown, to commit the indictable offence of having in their possession a drug, to wit, diacetylmorphine, for the purpose of trafficking, an indictable offence under the Opium and Narcotic Drug Act, contrary to the Criminal Code. On May 4, 1956, His Honour Judge Macdonell sentenced the applicant to twelve years' imprisonment in Kingston Penitentiary.
An appeal against this conviction (but not against the sentence imposed) was taken to the Court of Appeal for Ontario' and was dismissed on February 13, 1957; leave to appeal to this Court from that judgment was refused on May 1, 1957.
The sentence of twelve years was imposed pursuant to s. 408(1) (d) of the Criminal Code, as enacted by 2-3 Elizabeth II, c. 51, which came into force on April 1, 1955, and is referred to in these reasons as "the new code". Section 408 reads in part as follows:
408(1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy, namely,
(d) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a), (b) or (c) is guilty of an indictable offence and is liable to the same punishment as that to which an accused who is guilty of that offence would, upon conviction, be liable.
The maximum term of imprisonment for the indictable offence of having possession of a drug for the purpose of trafficking is fourteen years, as provided by s. 4(3) of the Opium and Narcotic Drug Act which section came into force on June 10, 1954.
Under the Criminal Code, R.S.C. 1927, c. 36, hereinafter referred to as "the old code", the maximum term of imprisonment which could have been imposed upon the 1[19571 O.W.N. 138, 117 C.C.C. 404.
2119571 S.C.R. IX.
applicant for the offence of which he was convicted would have been seven years, as provided by s. 573 of the old Code which reads as follows:
THE 573. Every one is guilty of an indictable offence and liable to sevenCartwright J. years' imprisonment who, in any case not hereinbefore provided for, conspires with any person to commit any indictable offence.
The question of law on which leave to appeal to this Court is sought is stated in the notice of motion as follows: Whether Section 408(1)(d) of The Criminal Code 1953-1954, Ch. 51 is applicable to the conspiracy committed, since if it is not the maximum sentence for a conspiracy not specifically named in The Criminal Code, R.S.C. 1927, Ch. 36, is found under Section 573 of the said Statute, namely seven (7) years.
On the merits, it is sufficient, for purposes of this motion, to say that the ground of appeal sought to be raised is, in my opinion, one of substance and difficulty; its importance is obvious; if the applicant's contention is upheld he will have been sentenced to five years' imprisonment in excess of the maximum term permitted by law.
Counsel for the respondent submits that we are without jurisdiction to grant leave to appeal from a judgment of the Court of Appeal dismissing an appeal against the sentence passed by the trial Court.
Counsel for the applicant bases his application on s. 597(1) (b) of the new Code which reads:
597.
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada within twenty-one days after the judgment appealed from is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may, for special reasons, allow.
It will be observed that this application falls within the literal meaning of the words quoted. The applicant is a person who has been convicted of an indictable offence whose conviction has been affirmed by the Court of Appeal and he seeks leave to appeal to this Court on a question of law. It is important to observe that the present section does not say "may appeal against the affirmance of such conviction" as did its predecessor. It is contended for the respondent, however, that other provisions of the Code, the history of the legislation and the jurisprudence dealing with require us to construe s. 597 as giving a convicted person a conditional right of appeal against his conviction only and not against his sentence. It is pointed out that s. 583 which confers upon a person convicted of an indictable offence the right of appeal to the Court of Appeal distinguishes between (a) an appeal against conviction and (b) an appeal against sentence, and that this distinction is maintained in sections 592 and 593 the former of which sets out the powers of the Court of Appeal on an appeal against conviction and the latter the powers on an appeal against sentence.
The respondent also relies on the decision of this Court in Goldhamer v. The King'. In that case the appellant had been found guilty of an indictable offence and sentenced by the trial court to pay a fine of $400 and in default of payment thereof to be imprisoned for six months; he immediately paid the fine; the Attorney-General of Quebec appealed to the Court of King's Bench under s. 1013 of the Criminal Code and that Court increased the sentence by adding thereto a term of imprisonment f6r six months; Bernier J. dissented but gave no reasons for his dissent. The appellant thereupon appealed to this Court. The question of jurisdiction was raised by the Court in the course of the argument. Judgment was reserved and the appeal was in due course dismissed. Duff J., as he then was, Mignault J. and Malouin J. were all of opinion that there was no right of appeal and dismissed the appeal on that ground. Idington J. was doubtful as to the Court's jurisdiction but thought that, in any event, the appeal should be dismissed on the merits. He said in part at p. 292:
Maclean J. simply concurred in the dismissal of the appeal. The ratio of the majority is found in the reasons of Duff J. at p. 293:

Cases cited

  • Goldhamer Goldhamer, supra

Statutes and regulations cited