the sentence. Section 1013 does, however, I think, distinguish very clearly between the conviction and the sentence for the purposes of appeal, and A the Act of 13-14 Geo. V., by which the present section was brought into force, made no change in section 1024. Accordingly, I think the word THE "conviction' in the last mentioned section should be read in its lessCartwright J. technical sense, and consequently that there is no right of appeal to the Supreme Court of Canada from the judgment given by a court of appeal on an appeal under subsection (2) of section 1013.
and in the reasons of Mignault J. (with whom Malouin J. agreed) at pages 293 and 294:
Our jurisdiction is governed by article 1024 of the Criminal Code, which states, with a proviso which need not be mentioned here, that any person convicted of any indictable offence, whose conviction has been affirmed on an appeal taken under article 1013, may appeal to the Supreme Court of Canada against the affirmance of such conviction.
As now amended, article 1013 gives a right of appeal against a conviction, and against a sentence pronounced by the trial court against a person convicted on indictment. Article 1024 was not amended by the 1923 statute and under it the right of appeal is restricted to an appeal against the affirmance of the conviction. Reading it with article 1013, as amended, the appeal from the sentence under paragraph 2 of article 1013 cannot be brought before this Court.
When Goldhamer was decided the sections referred to in the passages quoted, so far as relevant, read as follows: 1013 (1) A person convicted on indictment may appeal to the court of appeal against his conviction- (a) on any ground of appeal which involves a question of law alone; and
(b) with leave of the court of appeal, or upon the certificate of the trial court that it is a fit case for appeal, on any ground of appeal which involves a question of fact alone or a question of mixed law and fact; and
(c) with leave of the court of appeal, on any other ground which appears to the court of appeal to be a sufficient ground of appeal. (2) A person convicted on indictment, or the Attorney General, or the counsel for the Crown at the trial, may with leave of a judge of the court of appeal, appeal to that court against the sentence passed by the trial court, unless that sentence is one fixed by law.
1024. Any person convicted of any indictable offence, whose conviction has been affirmed on an appeal taken under section ten hundred and thirteen may appeal to the Supreme Court of Canada against the affirmance of such conviction: Provided that no such appeal can be taken if the court of appeal is unanimous in affirming the conviction, nor unless notice of appeal in writing has been served on the Attorney General within G
A fifteen days after such affirmance or such further time as may be allowed ~ by the Supreme Court of Canada or a judge thereof.
The Supreme Court of Canada shall make such rule or order Cartwright J. thereon, either in affirmance of the conviction or for granting a new trial, or otherwise, or for granting or refusing such application, as the justice of the case requires, and shall make all other necessary rules and orders for carrying such rule or order into effect.
The section now in force which corresponds with s. 1013 quoted above is s. 583 of the new Code reading as follows: A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal
(a) against his conviction
(i) on any ground of appeal that involves a question of law alone, (ii) on any ground of appeal that involves a question of fact alone or a question of mixed law and fact, with leave of the court of appeal or upon the certificate of the trial judge that the case is a proper case for appeal, or
(iii) on any ground of appeal not mentioned in subparagraph (i) or (ii) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal; or (b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law.
For the purposes of the problem before us the differences in wording between this section and s. 1013 are not significant.
When, however, s. 597 of the new Code is compared with s. 1024 under which Goldhamer was decided it will be observed that there are the following points of difference; (i) as pointed out above, the words in s. 1024 "against the affirmance of such conviction" have disappeared; (ii) while under s. 1024 the appeal to this Court was at large, provided there was a dissent in the Court below, the rights of appeal given by s. 597 are restricted to questions of law; (iii) under s. 1024 the time for appealing ran from "such affirmance" but under s. 597 it runs from the day when "the judgment appealed from is pronounced"; the usual meaning of the word "judgment" in criminal matters is, in my opinion, correctly stated in the Dictionary of English Law by Earl Jowitt (1959) at p. 1025:
In criminal proceedings, the. judgment is the sentence of the court on the verdict of the jury, or on the prisoner pleading guilty to the indictment. Where the jury acquits the prisoner, the judgment is that These three differences appear to me to be sufficientlyCartwright substantial to prevent the decision in Goldhamer being regarded as decisive of the question before us.
If the meaning of the words used were ambiguous it would be proper to consider the apparent intention of Parliament in enacting s. 597 in its present form, as appearing from the history of the legislation. One of the primary purposes appears to me to have been to confer upon this Court a jurisdiction, to determine points of law arising in cases of indictable offences, wide enough to ensure uniformity in the interpretation of the criminal law throughout Canada. That purpose would be pro tanto thwarted if we were to hold we are without jurisdiction to deal with a pure point of law as to whether a sentence imposed is or is not authorized by statute.
In my opinion no sufficient reason has been advanced for interpreting s. 597 so as to refuse a jurisdiction which appears to me to be conferred upon the Court by the words of that section construed in their ordinary and literal meaning.
There is another line of reasoning which leads me to, the same conclusion. Section 41 of the Supreme Court Act is in pari materia with s. 597 of the new Code. Both sections deal with the jurisdiction of this Court to grant leave to appeal from decisions of provincial Courts.
In Rex v. Loxdale', Lord Mansfield said:
Section 597 of the Code has already been quoted. Subsections (1) and (3) of s. 41 of the Supreme Court Act read as THE follows:
Cartwright J.
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.
(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.
The words of subs. (1) unless they are cut down by the opening phrase, "Subject to subsection (3)", are obviously wide enough to confer jurisdiction to grant leave to appeal from the judgment of the Court of Appeal affirming the sentence of 12 years' imprisonment passed upon the applicant; it is a judgment, and indeed a final judgment, of the highest court of final resort in the province in which judgment can be had in the particular case, for "judgment" is defined in s. 2(d) as follows:
(d) "judgment", when used with reference to the court appealed from, includes any judgment, rule, order, decision, decree, decretal order or sentence thereof;
If the words in subs. (3) "the judgment of any court ... affirming a conviction . . . of an indictable offence" are to be interpreted as having the limited meaning "affirming a verdict or finding of guilt excluding the sentence imposed" and not, to use the words of Duff J., quoted above, "with a signification including the sentence", it would follow that the jurisdiction to grant leave to appeal from sentence is not excluded by the words of subs. (3) from the wide power given by subs. (1). From this in turn it would follow that under subs. (1) this Court would have jurisdiction to give leave to appeal from a sentence and such an appeal would not be restricted to questions of law. It appears to me extremely unlikely that Parliament intended this result; it can be avoided by construing the words "the judgment of any court . . . affirming a conviction of an indictable offence" so as to include the affirmation of the sentence.
When s. 597 of the Code and s. 41 of the Supreme Court Act are read together it is my opinion that the word "conviction" in both sections should be read "with a signification including the sentence" which construction gives effect to the apparent intention of Parliament that our jurisdiction 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 Canada.
It may be observed in passing that cases in which a sentence can be questioned on a pure point of law are likely to be few and far between.
Having concluded that we have jurisdiction, I would, for the reasons mentioned earlier, grant leave to appeal 'on the ground set out in the notice of motion.
Application dismissed, J. dissenting.
Statutes and regulations cited
-
- s. 1013
- s. 1024
- s. 597
- ss. 583
- 592
- 593
- Section 597
-
Supreme Court Act
-
Unresolved citations
- Section 1013
- section 1024
- subsection (2)
- section 1013
- s s. 583 of the new Code
- paragraph (i)
- (ii)
- s. 597 of the new Code
- Subsections (1)
- (3)
- subsection (3)
- subs. (1)
- subs. (3)