Majority
I would, accordingly, dismiss this appeal.
O'GRADY SPAVu.a JJ. dissenting.
- Ritchie J. Solicitor for the applicant, appellant: H. P. Blackwood, Winnipeg.
Solicitor for the respondent: The Attorney-General of Manitoba.
WILLIAM E. STEPHENS ............... APPELLANT; *May 16,17 AND
Oct.4 HER MAJESTY THE QUEEN .........
RESPONDENT. ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA Constitutional law-Provincial legislation respecting duties of drivers involved in accidents-Whether matter so related to substance of s. 221(2) of the Criminal Code as to be brought within scope of the criminal law-Whether ultra vires-The Highway Traffic Act, R.S.M. 1954, c. 112, s. 147(1)--Criminal Code, 1953-54 (Can.), c. s. 221(2). Criminal law-Power to grant leave to appeal to the Supreme Court of Canada.
The accused was convicted in magistrate's court for having failed to remain at or return to the scene of an accident for certain defined purposes, contrary to s. 147(1) of The Highway Traffic Act of Manitoba, and he then appealed to the County Court, which held that s. 147(1) of the Act was ultra vires the Provincial Legislature. On appeal it was decided, by a majority, that the section was intra vires. The Court of Appeal granted the accused leave to appeal to this Court, where it was determined that the Court of Appeal lacked jurisdiction so to do. A constitutional question being involved, leave to appeal was granted by this Court.
Held (Locke and Cartwright JJ. dissenting): The appeal should be dismissed.
Per Kerwin C.J. and Taschereau, Fauteux, Abbott, Martland, Judson and Ritchie JJ.: The two pieces of legislation (s. 147(1) of the Act and s. 221(2) of the Code) differ in legislative purpose and in legal and practical effect. The section in the Act was enacted for provincial purposes by creating a duty to stop, render assistance and give information, whereas the section of the Code creates an offence to omit certain acts if done with a specified intent. Regina v. Dodd, [19571 O.R. 5, overruled; Regina v. Yolles, 119591
O.R. 206, approved; O'Grady v. Sparling, [19601 S.C.R. 804; Rex v. Corry, 26 Alta. L.R. 390; Regina v. Mankov, 28 W.W.R. 433, referred to.
Kerwin C.J. and Taschereau, Locke, Cartwright, Fauteux, Abbott, Martland, Judson and Ritchie JJ.
Per Locke and Cartwright JJ., dissenting: Where Parliament has, in the valid exercise of its exclusive power under head 27 of s. 91 of the British North America Act to make laws in relation to the criminal law, enacted that a certain course of conduct shall be punishable as an offence against the state provided it is accompanied by a specified intent, it is not within the power of the Legislature to enact that the very same course of conduct shall be punishable as an offence whether or not that specified intent exists.
The whole subject-matter of the charge against the appellant has been drawn by Parliament within the ambit of the criminal law with the effect of suspending the provincial legislative authority in relation to that subject-matter.
Provincial Secretary of P.E1. v. Egan, [19411 S.C.R. 396: Regina v. Dodd, supra, referred to.
APPEAL from the judgment of the Court of Appeal for Manitoba', reversing the judgment of Philp Sr. Co. Ct. J. Appeal dismissed, Locke and Cartwright JJ. dissenting. No oral argument was presented, as this case was to be decided at the same time and in the same way as the case of O'Grady v. Sparling, [1960] S.C.R. 804.
THE
CHIEF
JUSTICE:-The appellant, William E. Stephens, was convicted in magistrate's court in the City of Winnipeg, in the Province of Manitoba, on the 4th day of September 1958, for that he at the City of Winnipeg, on the 7th day of August, A.D., 1958, did unlawfully operate a motor vehicle on Furby St., and being involved in an accident fail to remain at the scene of the accident, fail to render all reasonable assistance and fail to give in writing to the parties sustaining loss or injury his name and address and the number of his driver's licence contrary to the provisions of the Highway Traffic Act 147-1 in such case made and provided.
He appealed to the County Court of Winnipeg and His Honour Judge Philp without hearing any evidence decided on a motion by counsel for Stephens that s. 147(1) was ultra vires the Provincial Legislature and set aside the conviction. On an appeal against this order to the Court of Appeal' for Manitoba, Tritschler J.A., with whom Schultz J.A. agreed, decided (Chief Justice Adamson dissenting) that the section was intra vires. The order of the Court was 1(1959-60), 30 W.W.R. 145, 32 C.R. 72.
that the appeal should be allowed and the matter remitted to the Senior County Court Judge for the County Court of Winnipeg to hear the evidence and dispose of the charge. The Court of Appeal granted Stephens leave to appeal KerwinCJ. to this Court. After notice to the parties we determined that that Court had no jurisdiction so to do. Stephens was prosecuted in accordance with The Summary Convictions
Act, R.S.M. 1954, 254, s. 7 of which provides for the application of certain named sections of the Criminal Code of Canada. The 1954 Revised Statutes of Manitoba and the new Criminal Code of Canada came into force on the same day but whether one refers to the sections of the old Code or of the new Code the result is the same. No power is given to a provincial Court of Appeal to grant leave to appeal to the Supreme Court of Canada from its judgment setting aside a conviction of a non-indictable offence. That power is conferred upon this Court and then only in respect of a question of law or jurisdiction. A constitutional question is involved in the present case and although, as will appear later, the point is now determined by what the majority of this Court holds in O'Grady v. Sparling', we granted leave so that the matter might be disposed of at the same time as the last mentioned case and Smith v. The
Queen.
Section 147(1) of the Manitoba Highway Traffic Act, under which the charge against Stephens was laid, reads:
We were advised that this provision originated in an amendment to the Act in 1930 by s. 61(1) of c. 19 of the Statutes of that year. Subsection (2) of s. 221 of the new Criminal
Code requires consideration:
This subsection originated in an amendment to the Criminal Code by s. 2 of c. 13 of the Statutes of 1910.
Judge Philp, with whom Chief Justice Adamson agreed, considered that s. 147(1) of the Manitoba Highway Traffic Act and s. 221(2) of the new Criminal Code were in pari materia and that, therefore, the former could not stand. As indicated earlier the point is really determined by the judgment of this Court in O'Grady v. Sparling', as the reasons of Judson J., which are those of the majority, referred to Regina v. Dodd , a decision of the Court of Appeal for Ontario relied upon by the County Court Judge in this case. It is pointed out in O'Grady v. Sparling that the problem there in question was the same "as that raised by the sideby-side existence of provincial legislation dealing with the duty to remain at or return to the scene of an accident for certain defined purposes, and s. 221(2) of the Criminal Code dealing with failure to stop at the scene of an accident 'with intent to escape civil or criminal liability' Judson J. continues by considering the Dodd case, Rex v. Corny', Regina v. Mankow', a decision of the Alberta Court of Appeal, and the decision of the Court of Appeal for Manitoba in the present case. It suffices to reiterate that the two pieces of legislation differ in legislative purpose and in legal and practical effect. The County Judge in this case considered that (a), (b), (c) of s. 147(1) of the Manitoba Highway Traffic Act referred to something that had happened after an accident and that all infractions against the rules of driving, for negligence, and other provisions for prevention of accidents and injuries to persons and property, were over and completed prior to the time of the alleged offences as charged. He states further that there was no degree of care such as in Regina v. Yolles', a decision of the Court of Appeal for Ontario. While we had refused leave to appeal to this Court because Yolles had been found not guilty on another ground, his counsel took part in the argument of the present appeal.
Here the County Judge considered that what was in question in s. 147(1) of the Manitoba Highway Traffic Act was one act (a) "remain at . . the scene of the accident"; (b) "render . . assistance"; "give in writing . . information". However, I agree with Tritschler J.A. that the section of the Manitoba Act was enacted for provincial purposes by creating a duty to stop, render assistance and give information, while the section of the Code creates an offence to omit certain acts if done with a specified intent. The result is that the decision of the Ontario Court of Appeal in Regina v. Dodd' is overruled and that of the same Court in Regina v. Yolles approved.
The appeal should be dismissed.
J. (dissenting) :-The charge against the appellant and the proceedings in the courts below are set out in the reasons of the Chief Justice.
The question to be decided is stated in the written argument of the Attorney-General for the Province of Manitoba as follows:
I think it clear that s. 147(1) would be intra vires of the legislature if there were no legislation of Parliament dealing with similar subject matter and I do not understand the appellant to argue the contrary. The question before us is that stated by Duff C.J. in Provincial Secretary of P.E.I. v. Egan':
facie The inquiry in the case at bar is directed to the specific charge brought against the appellant. It will be observed that to substantiate the charge the prosecution would have to prove (i) that the appellant was operating a motor vehicle that was involved in an accident on Furby Street causing loss or injury, (ii) that he failed to remain at the scene of the accident, (iii) that he failed to render all reasonable assistance, and (iv) that he failed to give in writing to the parties sustaining loss or injury his name, address and driver's licence number.
If the charge against the appellant had been laid under s. 221(2) of the Criminal Code instead of under s. 147(1) of The Highway Traffic Act, it would have been necessary for the prosecution to prove not only the matters set out above but also that the failure of the accused was accompanied by the intent to escape civil or criminal liability. This is a substantial difference which is somewhat lessened in practice by the terms of subsection (3) of section 221 of the Code making proof of the objective fact of the failures mentioned prima facie evidence of the existence of the guilty intent.
It is not, and could not successfully be, argued that the enactment of s. 221(2) and (3) is not a valid exercise of the exclusive power conferred on Parliament by head 27 of s. 91 of the British North America Act. The question before us may therefore be stated in the following terms. Where Parliament has, in the valid exercise of its exclusive power under head 27 of section 91 to make laws in relation to the criminal law, enacted that a certain course of conduct shall be punishable as an offence against the state provided it is accompanied by a specified intent, is it within the power of the Legislature to enact that the very same course of conduct shall be punishable as an offence whether or not that specified intent exists? With the greatest respect for all those who have, in this and other cases, expressed a different view I am of opinion that so long as section 221(2) of the Code continues in force, the Legislature has no such power, and I am in agreement with the conclusion reached in the case at bar by the learned Chief Justice of Manitoba and by the learned County Court Judge and also with the conclusion reached by Laidlaw J.A. in delivering theCartwright unanimous judgment of the Court of Appeal for Ontario in
Regina v. Dodd'.
The whole subject-matter of the charge against the appellant has, in my opinion, been drawn by Parliament within the ambit of the criminal law with the effect of suspending the provincial legislative authority in relation to that subject-matter.
I would allow the appeal, set aside the order of the Court of Appeal and restore the order of the learned County Court
Judge setting aside the conviction and directing the return of the fine, costs and security paid by the appellant.
J.:-I agree with the Chief Justice that s. 147(1)
of the Manitoba Highway Traffic Act is valid legislation enacted for provincial purposes and that the subject-matter with which it deals is substantially different from the offence defined in s. 221 of the Criminal Code in that the specific intent required under the latter section forms no part of the offence created by the provincial statute.
I would accordingly dismiss this appeal.
Appeal dismissed without costs, LocKE and
JJ. (dissenting)
.
Solicitors for the appellant: Yanofsky & Pollock,
Winnipeg.
Solicitor for the respondent: Gordon E. Pilkey, Winnipeg.
BOB MILINKOVICH (Plaintiff) ......... APPELLANT; *May 26,27
Oct. 4
AND
CANADIAN
MERCANTILE
INSUR- ANCE COMPANY (Defendant) .
R.S.P.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Insurance-Fire-Insured building and contents destroyed by fire-Proofs of loss-What constitutes delivery-Proofs sent by mail but not received-Mandate of agent-Waiver-Whether action premature- Civil Code, art. 2478-The Quebec Insurance Act, R.S.Q. 1941, c. 299, s.
When the plaintiff's building and contents, which were insured against fire by the defendant company, were completely destroyed by fire, the plaintiff notified the defendant. C, an adjuster, inspected the site and had the plaintiff sign an unsworn statement. Later on, having had no word from the defendant, the plaintiff consulted a lawyer who wrote to the defendant. The lawyer received from C a letter in which C disclosed that he had a mandate and complete discretion to deal with the matter, and asked the lawyer to have the plaintiff fill out the enclosed form of proof of loss and to return it to him. The form was duly filled out by the plaintiff and mailed by the lawyer himself. The defendant denied having received it. The plaintiff sued and the action was maintained by the trial judge. This judgment was reversed by a majority judgment of the Court of Appeal. The plaintiff appealed to this Court.
Held: The appeal should be allowed and the action maintained.
By virtue of the law governing this insurance contract, the insurer had the right to require delivery of the proofs of loss, but he also had the right to modify this requirement. In the present case, this is exactly what happened when C, the insurer's adjuster, informed the insured's lawyer that he had a mandate and complete discretion in the matter and elected to use the postal service for the return of the proofs of loss. The lawyer's obligation ended when he complied with that invitation. Magann v. Auger, S.C.R. 186, applied.
As to the procedural reason put forward by one of the judges of the Court of Appeal that no waiver had been alleged, the defendant had all the required information in the statement of claim.
APPEAL from a judgment of the Court of Queen's Bench, Appeal Side, Province of Quebec', reversing a judgment of Casgrain J. Appeal allowed.
A. J. McNally, for the plaintiff, appellant.
P. Pothier, Q.C., for the defendant, respondent.
Taschereau, Cartwright, Fauteux, Abbott and Ritchie JJ. '[19591
Que. Q.B. 186.
Judgment of the Court
FAUTEUx J.:-Par suite d'un incendie d6clar6 vers 6 heures a.m. le 2 f6vrier 1952, A Arntfield, province de Qubec, l'immeuble en lequel se trouvait l'appelant, ainsi que les meubles y contenus, furent complitement d6truits. En l'occurrence, l'appelant 6chappa de justesse et dut, aprbs avoir saut6 d'un 6tage sup6rieur au sol, 6tre, semiconscient et A peine vitu, recueilli par des voisins.
Tous ces biens, propri~t6 de 1'appelant et valant, l'immeuble $40,000 et les meubles $3,220.45,
6taient alors et depuis 1950, assurs par l'intim6e contre le risque d'incendie pour les sommes de $8,000 et $2,000 respectivement.
Le fait de la totalit6 de cette perte fut rapport6 A la compagnie et constat6 sur place, quelques jours plus tard, par l'enquiteur Francis Callaghan, qu'elle d6l6gua sur les lieux. Ce dernier questionna I'assur6 sur les causes possibles du sinistre, r6digea et lui fit signer une d6claration. Ceci fait, I'appelant, qui parait peu instruit et 6tait, de toutes fagons, ignorant de la proc6dure h suivre aux fins de sa r6clamation, demanda & Callaghan ce qui lui restait A faire. Ce A quoi cclui-ci r6pondit: "Just wait, the company will let you know."
L'appelant et sa famille quitt~rent Arntfield pour aller prendre r6sidence dans Ontario, dans la r6gion de Niagara Falls. I eut, le mois suivant celui de l'incendie, la visite d'un autre enquiteur, un certain Wilson, venant soi-disant de Toronto et ce, sur les instructions de sup6rieurs dont 1'identit6 ne parait pas avoir 6t6 riv4l6e h l'appelant. Wilson, comme l'avait fait Callaghan, questionna l'appelant et lui fit signer une d6claration.
Au d6but d'avril, l'appelant eut h consulter un avocat au sujet d'une reclamation de taxes scolaires. A Me Wilfred C. LaMarsh, de Niagara Falls, auquel il s'adressa, il apprit le fait de 1'incendie, la perte subie, la notification de la compagnie, les enquites conduites par Callaghan et Wilson, ainsi que les d6clarations qu'on lui avait fait signer. Des informations alors reques, Me LaMarsh ne put former 1'assurance qu'A l'occasion de la premibre ou de la seconde visite d'enquiteurs, une preuve formelle de perte avait 6t6 produite par l'appelant. C'est alors qu'il adressa la lettre VICH
.
.
qui suit A la compagnie intim6e:
MER- Co.
LaMARSH & LaMARSH
Fauteux J.
Barristers, Solicitors, Notaries Public, etc.
Telephone
1881 Ferry Street, Niagara Falls,
ONTARIO.
Avril 3, 1952.
The Canadian Mercantile Insurance Co.
St. Hyacinthe,
Quebec.
Dear Sirs:
By your Policy No. 19935 expiring November 19th, 1955, you insured Bob Milhinkovich of Arntfield, Quebec, for $8,000 on building and $2,000 on contents in connection with a Hotel, Restaurant and Bowling Alley in Arntfield.
There was a loss by fire of these premises early in February. Milhinkovich, who now lives outside Niagara Falls, Ontario, was in Arntfield at the time of the fire and is uncertain whether or not the investigation of the fire at that time and, subsequently, by a man who came to their home here from Toronto, whose name they believe to be Mr. Wilson, constitutes a claim under the policy.
Will you kindly advise me whether you have received Proof of Loss with respect to this claim and, if not, will you send papers forward so that a proper claim may be made. If the Proofs of Loss have been made, kindly advise me when and what the disposition of the claim by your Company is.
Yours truly,
LaMarsh & LaMarsh
(sgd) W.
WCL/vr
Pour toute rdponse h cette lettre adressie par lui directement h la compagnie intim6e, Me LaMarsh recevait, quelque quinze jours plus tard, une lettre de l'enquiteur Callaghan dont le texte, ci-apris reproduit, d6nonce en termes non 6quivoques, le mandat non qualifi6 et l'entibre discr6tion que lui donne 1'intim6e pour prendre charge de l'affaire et comporte, en outre, les instructions de Callaghan relativement au retour des formules de preuve de perte qu'il annexa A sa lettre:
Cases cited
- S.C.R. 396: Regina v. Dodd S.C.R. 396: Regina v. Dodd, supra
- O'Grady v. Sparling scr-1960-804
Statutes and regulations cited
-
- s. 221(2)
- s. 147(1)
- s. 7
- s. 61(1)
- s. 221
- s. 2
- section 221
- (3)
- section 91
- section 221(2)
-
Unresolved citations
- s. 147(1) of The Highway Traffic Act
- s. 91 of the British North America Act
- Section 147(1) of the Manitoba Highway Traffic Act
- Subsection (2)
- s. 147(1) of the Manitoba Highway Traffic Act
- s. 221(2) of the new Criminal Code
- subsection (3)