Wright, McDermott and Feeley v. The Queen

FAUTEUX J.:-On June 24, 1963, this Court dismissed an appeal' entered by Robert J. Wright, Joseph P. Mc- Dermott and Vincent B. Feeley against their conviction on the following charge:

1 [19631 S.C.R. 539.

R.C.S.

Some six months later, in December 1963, both McDermott and Feeley, purporting to be so entitled under rule 61 of the Rules of this Court, applied to this Court for an order granting a rehearing of the appeal on the ground that the above indictment did not disclose an offence under the Criminal Code of Canada. Having heard and considered the submissions of counsel for the applicants, the Court, indicating that reasons would later be delivered, declared that, assuming it had jurisdiction to entertain the application, the ground upon which it was made was illfounded. The application was dismissed.

The charge is laid under s. 408(2) of the Criminal Code providing that:

The argument made in support of the application is centred upon the meaning to be ascribed to the term "unlawful purpose". It was contended that the unlawful purpose contemplated in the section must be one which, if carried into effect, would constitute an act declared to be criminal by the Criminal Code of Canada and that, as the purpose alleged in the charge was made unlawful under s. 60 of The Police Act, R.S.O. 1960, 298, the charge did not disclose an offence under the Criminal Code. The case of Regina v. Sommervill and Kaylich' was particularly relied on.

While marginal notes in the body of an Act form no part of the Act, the marginal note appended to s. 408(2) accurately designates as "Common Law conspiracy" the offence described in this section which, as defined by Lord Denman in Rex v. Jones , consists in a combination "either to do an unlawful act, or a lawful act by unlawful means". Common Law conspiracy is one of the few Common Law offences which, upon the 1954 revision of the Criminal Code, Parliament thought advisable to perpetuate by codification. Martin's Criminal Code 1955 ed., p. 35. Hence the law pertaining to this offence, its elements and the wide embracing import of the term "unlawful purpose", J remains unchanged. While the term, as shown in Harrison The Law of Conspiracy, encompasses more than criminal offences, sufficient it is to say, for the purpose of this case, that the purpose alleged in the charge, to wit, the obtention from a constable of information which it is his duty not to divulge, is an unlawful purpose. In the language of Lord Mansfield, in Rex v. Bembridgel:

The fact that the purpose or the breach of trust contemplated by the conspirators, whether as their ultimate aim or only as a means to it, be, if carried into effect, punishable either under s. 103 of the Criminal Code (vide Rex v. McMorran ) or under s. 60 of the Ontario Provincial Police Act, adequately manifests the unlawfulness of the purpose within the meaning of the law attending Common Law conspiracies.

With deference, I am unable to agree with the decision rendered in Regina v. Sommervill and Kaylich, supra, and to accept as well founded the ground alleged in support of this application which, as indicated above, has been dismissed at the issue of the hearing.

Application dismissed.