Judgment of the Court
CARTWRIGHT J.:-Adrienne Laroche was convicted before His Honour Judge Macdonald and a jury on February 16, 1962, on an indictment charging that she did between the 17th day of September, 1956 and the 17th day of May, 1960, at the Town of Eastview, in the County of Carleton, unlawfully convert to her own use money to the amount of $10,790.52, the property of the Municipal Corporation of the Town of Eastview and did thereby steal the same, contrary to the Criminal Code of Canada.
She appealed to the Court of Appeal on a number of grounds, some of which that Court found it unnecessary to discuss. The Court of Appeal by a unanimous judgment delivered by McLennan J.A. allowed the appeal, quashed the conviction and directed a new trial.
The Crown seeks leave to appeal to this Court on the following question of law:
Whether the Court of Appeal erred in law in holding that the learned trial judge misdirected the jury as to the theory of the defence.
The question as stated appears to be one of law but counsel for the respondent opposes the motion on the ground, inter alia, that the judgment of the Court of Appeal was based upon two separate and distinct grounds which he summarizes as follows:
He submits that the first of these does not raise a question of law alone and that this Court is without jurisdiction to entertain an appeal upon it.
It is clear from the judgment of this Court in The Queen v. Warner', that where a Court of Appeal has quashed a conviction on two grounds of which one is, and the other is not, appealable to this Court, the appeal to this Court must be dismissed.
In support of his submission that the first of the two grounds summarized above does not raise a question of law alone, Mr. Martin relies on R. v. Bateman , particularly at 207 and R. v. Curlett'. Both of these judgments appear to lend considerable support to Mr. Martin's argument but neither of them is binding on us. The first is that of the Court of Criminal Appeal in England composed of Channell, Jelf and Bray, JJ. The second is a majority decision of the Court of Appeal for Alberta, Harvey C.J.A., Ewing and McGillivray JJ.A. being the majority and Clarke and Lunney JJ.A. dissenting. Both cases appear to hold that whether there has been nondirection or misdirection by the trial judge in dealing with the evidence is not a question of law alone. In the latter case Harvey C.J.A. points out that while this Court appears to have decided Brooks v. R.1 as if the failure to make adequate reference to an item of importance in the evidence raised a question of law appealable to this Court, the point was not raised or discussed.