Majority
LTEE and
A
APPELLANTS, CLEMENT ALEPIN ............
AND
HER MAJESTY THE QUEEN .........
RESPONDENT. (Nos. 1839-1841 C.Q.B.)
APPEAL FROM THE COURT OF QUEEN'S BENCH,
APPEAL SIDE, PROVINCE OF QUEBEC
Judgment of the Court
J.:-In May 1961, respondents were found guilty, under Part XXIV of the Criminal Code, by Judge
T. A. Fontaine of the Court of the Sessions of the Peace, for the District of Montreal, of having, in Montreal, on or about November 13, 1960, in violation of s.367 Cr.C.,
(i) dismissed from her employment with respondent company, Th6rbse Latour, for the reason only that she was a member of the International Ladies Garment Workers
Union, a lawful trade union, and (ii) sought by intimidation and by causing actual loss of her employment to compel other employees of the company to abstain from belonging to a trade union to which they had a lawful right to belong. Jointly charged of the same offences,
Camille Alepin was acquitted.
Prior to the date eventually fixed for sentence, respondents appealed from their conviction to the Superior Court pursuant to ss. 719 et seq. Cr.C.; in the result, no sentence was pronounced by Judge Fontaine. The evidence submitted at the trial de novo was, by agreement of the parties through their respective counsel, the evidence adduced in the Court of Sessions of the Peace before
Judge Fontaine. This appeal was heard by Ouimet J. who, having considered the matter, dismissed it in November 1962 and, a few days later, imposed sentence on each of the respondents.
al.
The latter then sought and obtained leave to enter a separate appeal to the Court of Queen's Bench' from the conviction as well as from the sentence. As grounds of appeal against the conviction, they contended that there was no evidence in support thereof and also that Ouimet J. had illegally read and been prejudiced by the reading of the reasons for judgment delivered in the Court of Sessions of the Peace by Judge Fontaine. As grounds of appeal against the sentence, they submitted that, in the circumstances, the jurisdiction to impose sentence was exclusively vested in the Judge of the Court of Sessions of the Peace and not in the Judge of the Superior Court hearing the trial de novo. On these appeals of the company and Cl6ment Alepin, bearing respectively No. 1841 and No. 1839 of its records, the Court of Appeal (Hyde, Rinfret and Montgomery JJ. A.) rendered the following formal judgment:
Thus in each of the appeals:-(i) the conviction was maintained by a majority judgment (Hyde and Montgomery JJ.A.); Rinfret J.A., dissenting on the basis of the second ground of appeal, would have quashed the conviction and returned the record to the Superior Court for a fresh trial de novo; (ii) the sentence was quashed by a majority judgment, Rinfret J.A. because he would have quashed the conviction and Montgomery J.A. for the reason that, in his view, the ground raised as to jurisdiction to impose sentence, was well founded. Hyde J.A., et al. dissenting, would have maintained the sentence. In each of the appeals, the Court ordered the record to be referred back to the Court of Sessions of the Peace for the District of Montreal for the imposition of sentence.
Hence, two appeals were launched in this Court with leave thereof granted under s.41 of the Supreme Court Act, to wit (i) the appeal of Her Majesty the Queen against the finding of the Court of Appeal on the question of jurisdiction to impose sentence and (ii) the appeal of
J. Alepin Frdres Ltie and Cl6ment Alepin, with respect to the conviction.
The recital of the material facts giving rise to these proceedings appears in my reasons for judgment delivered this day in the case of Her Majesty the Queen v.
Frdres Lt6e and Climent Alepin, Nos. 1838-1840 C.Q.B.
With respect to the appeal of Her Majesty the Queen,
I have reached the opinion that this Court has no jurisdiction. Any jurisdiction this Court might have must be found in s.41 of the Supreme Court Act, there being, in the Criminal Code, no provisions permitting, in summary convictions, an appeal to this 'Court. The relevant provisions of s.41 to be considered are:
It is clear from the terms of subsection (3) that, unless the judgment sought to be appealed is a judgment "acquit- 'Ante ting or convicting or setting aside or affirming a conviction or acquittal" of either an indictable offence or an offence other than an indictable offence, there is no jurisdiction in this Court under that subsection to entertain this appeal. The judgment here sought to be appealed does not come within that description. It is not a judgment related to an acquittal or a conviction of an offence and, while an important question of jurisdiction is involved therein, this question does not relate to an acquittal or a conviction within the meaning of subsection (3) but to sentence. Neither can jurisdiction of this Court be found in subsection (1). The general proposition that matters which are not mentioned in s.41(3) must be held to be comprised in s.41(1), with the consequence that this Court would have jurisdiction to entertain an appeal from a judgment of a nature similar to the one here considered, is ruled out by what was said by this Court in Goldhar v. The Queen' and Paul v. The Queen . It may be a matter of regret that this Court has no jurisdiction to decide the important question which gave rise to conflicting opinions in the Court below, but strong as my views may be with respect to that question, I am clearly of opinion that this Court has no jurisdiction to entertain this appeal.
As to the appeal of J. Alepin Frdres Lt6e and Clement Alepin, two submissions made by counsel for appellants are to be considered. The first one is that there was no evidence that Mrs. Latour was dismissed for the reason only that she was a member of a lawful trade union (s. 367(a) Cr.C.) or that appellants wrongfully or without lawful authority sought, by intimidation. and by causing actual loss of her employment, to compel other employees to abstain from belonging to the International Ladies Garment Workers Union (s. 367(b) Cr.C.). In none of the three Courts below was this submission accepted and, in my view, rightly so. From the evidence, it is sufficient to point to the following statement made by Alepin to Mrs. Latour, in the afternoon of the 13th of October 1960:
and to this other statement, also made by Cl6ment Alepin, to foreman Lebeau, apparently with reference to Mrs. Latour's dismissal:
The second submission is that Ouimet J., seized with the trial de novo, illegally read and was prejudiced by the reading of the Judge Fontaine of the Court of Sessions of the Peace. The judgment of Ouimet J. clearly indicates that, while he expressed his agreement with Judge Fontaine, he did form his own conclusions both as to the facts and the law, after due consideration of the evidence submitted by agreement of the parties as well as the written arguments made by their counsel in support of their respective submissions. With deference, I fail to see any substance in this submission which, as well as the first made in support of this appeal, cannot be accepted.
I would therefore quash the appeal of Her Majesty the Queen, with costs, and dismiss the appeal of J. Alepin Frbres Lt6e and Cl6ment Alepin, with costs.
Appeal by the Crown quashed with costs; and appeal by the respondents dismissed with costs.
Attorney for the Crown: J. J. Spector, Montreal. Attorneys for the accused: Beauprg & Trudeau, Montreal.