The Queen v. Doig

LocKE J.:-This is an appeal brought by leave granted by this Court from a judgment of the Court of Appeal for British Columbia' setting aside an order made by His Honour Judge Remnant in the County Court of Vancouver and directing that a sum of $3,275 in American funds, or the equivalent thereof in Canadian funds, be paid to the respondent.

The respondent Doig was on April 25, 1957, found guilty in the County Court Judge's Criminal Court of Vancouver of four charges of counterfeiting and conspiracy to counterfeit and sentenced to four years' imprisonment. At the time of his arrest he had in his possession two envelopes, one of which was said to contain $2,200 in American currency and the second $1,075 of such currency, and the envelopes said to contain these monies were filed as exhibits at his trial. After his conviction they remained in the custody of the registrar of the Court.

Following the release of Doig from the penitentiary, his solicitor served a notice on counsel for the Crown which was entitled "In the County Court Judge's Criminal Court In the Matter of Regina vs. William Thomas Alexander Doig" and which stated that an application would be made before the judge in chambers on September 19, 1960, for an order This application was supported by an affidavit of Mr. Lawrence E. Hill, the solicitor for Doig, which stated, inter alia, that he had been advised by the registrar that: Thereafter, a notice dated October 3, 1960, was served by the solicitor for Doig informing the Crown that:

While the amended notice did not say in terms that what was proposed was an order against the Crown to pay the missing monies, it is common ground that this was the n relief sought.

The learned County Court judge dismissed the application and while no written reasons were given at the time, when the appeal was taken by Doig from the order the learned judge made a report to the Court of Appeal, stated to be made pursuant to s. 588(1) of the Criminal Code, in which it was said that all the monies were proved to be the proceeds of the criminal activities of Doig and that they should remain in custody of the Court. The report concluded by stating that the fact that the money had disappeared from the registry was beside the point.

The formal order dismissing the application was entitled "In the County Court Judge's Criminal Court" and the style of cause was "Regina vs. William Thomas Alexander Doig." the learned Chief Justice of British Columbia did not mention the fact that the monies were missing. After saying that it had been agreed by counsel on the hearing of the appeal that it had not been established that the money had been obtained by the commission of the offence for which the appellant had been convicted, he said:

After referring to authorities indicating that monies taken from an accused person, unless they are shown to have been obtained by the commission of an offence, should be returned to him, the learned Chief Justice said:

The style of cause in the formal judgment entered in the Court of Appeal was "Regina, Respondent, William Thomas Alexander Doig, Appellant." After stating that the appeal was allowed, the judgment reads:

S.C.R.

It will be seen from the foregoing that the matter has been treated in both Courts as if the monies in question were in the hands of the proper official of the Court, the registrar, presumably as a servant of the Crown. While, as I have pointed out, it was known to the parties before the matter came before the learned County Court judge that the monies were missing, the solicitor for the present respondent, while appreciating that he could not obtain the form of relief sought in the original notice of motion, failed to appreciate that the alternative claim advanced was a claim to recover monies from the Crown.

If there was any basis for such a claim, presumably it would be for damages for conversion or for negligence of some servant of the Crown. In whatever form the claim might have been advanced, the matter would be governed by the provisions of the Crown Procedure Act, R.S.B.C. 1960, c. 89, and the Court having jurisdiction, the Supreme Court of British Columbia, if a fiat were obtained from the Lieutenant-Governor in Council, and the proceedings would be by petition of right.

This aspect of the matter does not appear to have been drawn to the attention of the learned County Court judge who treated the application as if it were made in the criminal proceedings against the respondent which had been terminated years before. The appeal to the Court of Appeal which was brought by leave was not one under Part 18 of the Criminal Code and s. 588(1), requiring a report by the judge in appeals and applications for leave to appeal taken under that part, was inapplicable.

In the judgment of the Court of Appeal it was pointed out that the order sought was not one to be made or refused in the exercise of the criminal jurisdiction of the County Court. However, that judgment, with great respect, dealt with the matter on the footing that the monies were then in the custody of the registrar, whereas there were no such monies.

Since this was made known to the Court in the report made by the County Court judge and was common ground between the parties, the proper construction to be placed upon the judgment is, in my opinion, that it constitutes an award against the Crown in favour of the respondent in the amount stated.