Majority
pas eu h consid6rer la question. M. le Juge Bissonnette, d'autre part, a trouv6 que ce grief 6tait sans fondement et, devant cette Cour, l'intim6e en a formellement fait 1'abandon.
Dans ces vues, je maintiendrais 'appel et infirmerais le jugement de la Cour du banc de la reine, avec d6pens des Fauteux J. deux Cours.
Judgment of the Court
J.:-In the year 1956 the two appellants were municipal officials of the Township of York, Frederick W. Hall being the reeve and Harold D. Linden one of the councillors. They were jointly indicted under s. 104(1) of the Criminal Code for offering to accept a sum of money from one Neil J. May to aid in procuring the adoption of a measure, motion or resolution concerning the issue of a building permit to him. The second count of the indictment contains a separate charge against Harold D. Linden of accepting from one Harry D. Payne a sum of money for the same purpose. At the conclusion of the case for the Crown, on the motion of counsel for the defence, the learned trial judge directed the jury to return a verdict of not guilty on both counts. The Court of Appeal' held that there was error in so directing the jury, being unanimously of the opinion that there was some evidence fit for submission to the jury on both counts. The two accused now appeal to this Court from the judgment of the Court of Appeal setting aside the verdict of acquittal and directing a new trial.
The evidence on which the Court of Appeal acted is set out in full in its reasons. I do not propose to repeat more than the following brief summary.
Early in 1956 Neil J. May, the president and sole shareholder of Carbide Tool Company Limited, decided to extend his factory building in the Township of York. He first discussed a building permit with the Township Engineer and, on March.6, 1956, he completed the filing of the necessary documents for the issue of the permit. On March 8, he entered into a building contract with Harry D. Payne for I uL& the construction of the building.
On March 12, at a meeting of the Committee of General Purposes of the township, May's application for the permit was approved subject to a ten-foot set-back of the north wall of the proposed building from the neighbouring lands. On March 19, the next meeting of the Committee of General Purposes took place. In the meantime May secured the consent of the owners of the neighbouring lands to the erection of the building as shown on the original plans. At this meeting of the Committee the application was approved unanimously.
The general building by-law of the township provides as follows:
Evidence was given by the township solicitor that the usual practice was to issue a building permit without waiting for the passing of the by-law approving the minutes of the meeting of the Committee for General Purposes, and that the passing of the by-law authorizing the permit was regarded as a mere formality. The township engineer gave evidence to the same effect.
On March 20, 1956, May applied to the township office for his building permit and was told that it was not ready. On March 21, May had a meeting with Hall in the latter's office, having made the appointment by telephone the day before. May says that at this meeting Hall solicited a bribe and sent him on to see Linden, who also made the same suggestion. May also says that Linden called Hall in his presence and discussed the issue of the permit and stated that May understood what the position was. Following this conversation, May spoke to his lawyer before he returned to S.C.R.
speak to Hall. On the second interview with Hall the township engineer was called in. He said that everything in connection with the permit was in order. After the engineer had left Hall referred to the arrangement which May had J. made with Linden and suggested that the money could be left in the glove compartment of his car. He pointed out where the car was parked. May also says that Hall, after a telephone conversation with the building department, told him that the permit was ready and to go down to the building department. May says that he did go down to the building department but the permit was not ready and that he was told to pick it up the following day. He did attend on the following day at the building inspector's department and the permit was delivered to him. May says that he did not give any money either to Linden or to Hall. He had already spoken to a solicitor and afterwards he and his solicitor interviewed the Assistant Crown Attorney. Payne says that he did give the sum of $100 to Linden for the issue of a permit.
Up to this time, of course, the authorizing by-law had not been passed. There was nothing except the minute of the General Purposes Committee and what was referred to as the general practice to support the issue of the permit. The grounds on which the learned trial judge directed the jury to acquit both accused were as follows:
The case for the prosecution is that it is open to the jury to infer from the evidence that the two appellants made an offer to accept money for assistance in obtaining a valid building permit and that this necessarily involved the passing of a by-law upon which each was entitled to vote and subsequently did in fact vote. I have outlined above the chronology of the evidence until the building by-law was passed. May, as an applicant, was in no position to demand of the building inspector that he issue a permit. It is true that the permit was issued before the passing of the