Judgment of the Court
J.:-This is an application for leave to appeal to this Court from a judgment of the Court of Appeal for British Columbia pronounced on May 1, 1962, and entered on October 3, 1962.
On August 11, 1960, the applicant was acquitted by a deputy police magistrate in and for the City of Vancouver on two charges of evading payment of income tax. The sole ground of acquittal was that the proceedings against the applicant, having been instituted more than six months after the time when the subject-matter of the proceedings arose, were barred by the provisions of s. 693(2) of the
Criminal Code, despite the provisions of s. 80(4) of the
Income War Tax Act, R.S.C. 1927, c. 97 as amended by
11-12 George VI, c. 53, s. 13, which provided:
On August 17, 1960, an application was made on behalf of the Attorney General for Canada to the learned deputy magistrate to state a case pursuant to s. 734 of the Criminal Code.
At that date the procedure to be followed was governed by the Crown Office Rules (Criminal) of the Province of
British Columbia, Rule 13 of which read:
On September 9, 1960, a case was stated by the learned deputy police magistrate and notice dated September 16,
1960, that a case had been stated and was to be heard in the Supreme Court of British Columbia on November 1,
1960, was served on the applicant.
On November 1, 1960, the hearing of the stated case was adjourned by the presiding judge in chambers pending the result of the appeal to the Supreme Court of Canada, taken from the judgment of the Appellate Division of the Supreme Court of Alberta in The Queen v. Machacek'. By judgment of this Court pronounced on January 24, 1961, the appeal in Machacek's case was allowed. This judgment is reported in [1961] S.C.R. 163.
The stated case came on for hearing before Lord J. on February 21, 1961, at which time an application was made on behalf of the Attorney General, pursuant to Rule 13, supra, to extend the time for applying for the said stated case, which application was refused and the appeal by way of stated case dismissed on the ground that the case was not stated within the time prescribed.
By notice, dated March 1, 1961, an appeal was entered in the Court of Appeal for British Columbia from the judgment of Lord J. and by judgment of the Court of Appea pronounced on June 12, 1961, the appeal was allowed and it was ordered that the stated case be remitted back to the Supreme Court to consider whether the time for applying for the stated case should be extended and if so to hear the said stated case.
The application that the time for applying for the stated case be extended to August 17, 1960, came on for hearing before Wilson J. on September 13, 1961, and that learned judge dismissed the application, giving the following oral reasons:
The formal order of Wilson J. reads as follows:
It is clear that Wilson J. dealt with the question whether the extension of time should be granted and having decided that it should not he did not deal with the stated case on its merits.
Notice of motion for leave to appeal to the Court of
Appeal from the judgment of Wilson J. was filed and served on September 27, 1961. On May 1, 1962, the Court of Appeal granted leave to appeal, allowed the appeal and J. ordered:
It is from this judgment of the Court of Appeal that the applicant now asks leave to appeal on a number of grounds including the following:
No reference to the question of its jurisdiction is made in the reasons for judgment given orally by the Court of
Appeal.
The application to this Court is met in limine by the objection that we are without jurisdiction. To this it is answered that jurisdiction is conferred by s. 41 of the
The reasons of the majority of this Court in Paul v. The
Queen' appear to me to hold that on the true construction of s. 41 the power thereby conferred on this Court to grant leave to appeal from judgments relating to offences other than indictable offences is limited to cases in which the judgment sought to be appealed is that of a court acquitting or convicting an accused or setting aside or affirming a conviction or acquittal. The judgment of the Court of Appeal of May 1, 1962, does none of these things. For the time being the acquittal of the applicant stands; the effect of the judgment of the Court of Appeal is not to set it aside but to require a judge of the Supreme Court of British
Columbia to hear and dispose of the stated case on its merits and thereby to decide whether the acquittal shall be
Cases cited
- The Queen v. Machacek scr-1961-163
- Rule 13 Rule 13, supra