Lowry et al. v. R., [1974] SCR 195

Supreme Court of Canada

Lowry et al. v. R., [1974] S.C.R. 195

Date: 1972-03-30

Ronald Byron Lowry and David Gerald Lepper Appellants;

and

Her Majesty the Queen Respondent.

1972: February 7, 8; 1972: March 30.

Present: Martland, Judson, Ritchie, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Criminal law—Appeal—Powers of Court of Appeal—Aquittal set aside and conviction entered—Power to impose sentence—Accused respondent not present in Court—Respondent not given opportunity to make submissions in respect of sentence—Canadian Bill of Rights, 1960 (Can.), c. 44, ss. 1,2—Criminal Code, ss. 615(4), 613(4), 577(1).

The appellants were aquitted at trial on charges of unlawful assault upon four peace officers engaged in the execution of their duty. The Court of Appeal convicted the appellants and, at the same time, imposed upon each of them a sentence of six months imprisonment. The sentence was imposed without the appellants being present and having an opportunity to make submissions in respect of that matter. At the conclusion of the argument of Counsel for the appellants, this Court ruled that there had been no error made by the Court of Appeal in setting aside the acquittal of the appellants. However, there remained the issue as to whether the Court of Appeal was entitled to impose sentence in this case.

Held: The appeal should be dismissed on the merits and the case remitted to the Court of Appeal to pass sentence after receiving submissions from the appellants.

The Criminal Code does not require that the accused must be present when sentence is passed by a Court of appeal under s. 613(4)(b)(i). In the light of the history of s. 594 (4), it cannot be concluded that the enactment of s. 594 (4) in 1955, enabling the Court of Appeal to impose sentence notwithstanding that the appellant is not present, can be interpreted also as leading to the illogical result that when sentence is imposed after a Crown appeal from an aquittal the accused must be present.

[Page 196]

However, in the imposition of sentence under s. 613 (4), the Court of appeal must, by virtue of s. 2 (2) of the Canadian Bill of Rights, give the accused an opportunity to make, or to have made on his behalf, any submission on this matter. A “fair hearing” of a criminal trial includes the matter of sentence, and, accordingly, the power to pass sentence is a power which can only be exercised after a fair hearing on that issue. This Court has jurisdiction to deal with this matter. The case should therefore be remitted to the Court of appeal to pass sentence, after the appellants have been given the opportunity to make submissions to that Court on that matter.

APPEAL from a judgment of the Court of Appeal for Manitoba[1], setting aside the acquittal of the appellants and imposing upon them a sentence. Appeal dismissed on the merits and case remitted to Court of Appeal to pass a new sentence.

R. Penner, Q.C., and R. Carbert, for the appellants.

W. Morton, for the respondent.

The judgment of the Court was delivered by

MARTLAND J.—The appellants appealed to this Court from the judgment of the Court of Appeal for Manitoba, which allowed an appeal by the respondent from the judgment at trial acquitting the appellants on charges of unlawful assault upon four peace officers while engaged in the lawful execution of their duty. The Court of Appeal convicted the appellants on the said charges and, at the same time, imposed upon each of the appellants a sentence of six months imprisonment on each charge, the sentences to be concurrent. The appeal to this Court was made pursuant to s. 597 (2) (now s. 618 (2)) of the Criminal Code, which gave them an appeal as of right on a question of law.

At the conclusion of the argument of counsel for the appellants, counsel for the respondent was advised that it was not necessary for him to submit argument in respect of the decision of the Court of Appeal to allow the respondent’s

[Page 197]

appeal from the acquittal of the appellants, as this Court was unanimously of the opinion that there had been no error by the Court of Appeal on a question of law.

There remains, however, the issue raised by the appellants that the Court of Appeal was not entitled, upon convicting the appellants, to impose sentence upon them without their being present and having the opportunity to make submissions in respect of that matter.

In support of the contention that the Court of Appeal could not impose sentence in the absence of the appellants, reference was made to the provisions of s. 594 (4) (now s. 615 (4) of the Criminal Code, which provides that:

The power of a court of appeal to impose sentence may be exercised notwithstanding that the appellant is not present.

It was submitted that the maxim “expressio unius exclusio alterius” was applicable and that, as the present appellants were not appellants before the Court of Appeal, but were respondents, the power of that court to impose sentence could not be exercised unless they were present.

I do not agre with this contention, in the light of the history of this provision. Prior to 1923, the 1892 Criminal Code provided for the reservation of questions of law for the opinion of the court of appeal, and for appeals to the court of appeal against a refusal to reserve such a question. The Crown enjoyed the same rights as the accused in respect of these matters. In 1923 these provisions were replaced by what was practically a verbatim copy of the English Criminal Appeal Act of 1907 (7 Edw. VII, c. 23), save that provision was made for a right of appeal against sentence, by the Crown, and for directing a new trial when a conviction was quashed.

In s. 1012 (a) “appellant” was defined as including a person who has been convicted on indictment and who desires to appeal. Section 1021A (4) provided that:

The power of the court of appeal to pass any sentence under section 1015 of this Act may be

[Page 198]

exercised notwithstanding that the appellant is for any reason not present.

The result of the 1923 amendment was to take away the previously existing right of appeal by the Crown from an acquittal, on a question of law, apparently through inadvertence, since the provision for appeals to this Court “by any person whose acquittal has been set aside” was left intact.

The Crown’s right of appeal on a question of law was restored in 1930 (20-21 Geo. V, c. 11, s. 28) by enacting new subs. (4) and (5) in s. 1013, as follows:

(4) Notwithstanding anything in this Act contained, the Attorney General shall have the right to appeal to the court of appeal against any judgment or verdict of acquittal of a trial court in respect of an indictable offence on any ground of appeal which involves a question of law alone.

(5) The procedure upon such an appeal and the powers of the court of appeal, including the power to grant a new trial, shall mutatis mutandis and so far as the same are applicable to appeals upon a question of law alone, be similar to the procedure prescribed and the powers given by sections one thousand and twelve to one thousand and twenty-one of this Act, inclusive, and the Rules of Court passed thereto, and to section five hundred and seventy-six of this Act.

In the 1955 Criminal Code the 1923 and 1930 amendments were reproduced, without changes in substance. The definition of “appellant” was omitted. The “mutatis mutandis” provision of s. 1013 (5) disappeared, appropriate changes being made in some other sections. But s. 1021A (4) was reproduced as s. 594 (4), previously cited, leaving the word “appellant” unchanged. It would appear that, through oversight, modification of this provision, required by the suppression of the “mutatis muntandis” provision, was overlooked.

In the light of this history, I cannot conclude that the enactment of s. 594 (4) in 1955, enabling the court of appeal to impose sentence

[Page 199]

notwithstanding that the appellant is not present, can be interpreted also as leading to the illogical result that when sentence is imposed after a Crown appeal from an acquittal the accused must be present.

The power of the court of appeal on such an appeal is defined in s. 613 (4), formerly s. 592 (4):

(4) Where an appeal is from an acquittal the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or

(ii) order a new trial.

Referring to this subsection, Martin, in his 1955 Criminal Code, says: “Subsec. (4) is the former s. 1013 (5) and sets out what is there incorporated by reference.”

Where it is intended by the Criminal Code that the accused must be present, it specifically so provides. Section 577(1) (formerly s. 577 (1)) states that, subject to subs. (2) (which covers the case of interruption of proceedings by the accused, or permitting his absence) “an accused other than a corporation shall be present in court during the whole of his trial.”

In my opinion the Code does not require that the accused must be present when sentence is passed by a court of appeal under s. 613 (4) (b) (i).

The next question which arises is as to the power of the Court of Appeal to impose sentence without having given to the appellants an opportunity to make, or to have made on their behalf, any submission on this matter. We were advised by counsel for the appellants that submissions on the matter of sentence had not been made before the Court of Appeal, apart from his suggestion that, if the appeal were allowed, the matter of sentence might be referred back to the magistrate. This course

[Page 200]

commended itself to Chief Justice Smith, but the majority of the Court decided to impose sentence.

In R. v. Lunn[2], the Nova Scotia Supreme Court (in banco), at p. 362, held that, in a case where the court had allowed an appeal from an acquittal, the accused “should be given the right to be heard” before sentence was imposed.

The subsequent enactment of the Bill of Rights (S.C. 1960, c. 44 ) strengthens this view. Section 1 declares the right of an individual not to be deprived of his liberty without due process of law. Section 2 requires the law of Canada to be construed and applied so as not to abridge or infringe on such right and, in particular, under para, (e) so as not to “deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.”

The opinion has been expressed in the judgment of the Appeal Division of the Nova Scotia Supreme Court in R. v. Russell[3], that s. 2(e) of the Bill of Rights does not apply where the issue is guilt or innocence under the criminal law. The same opinion was expressed by Jessup J.A. in the Ontario Court of Appeal in R. v. Duke[4]. However, the other two members of the Court in that case preferred to express no opinion on this point.

In my opinion, the application of s. 2 (e) should not be restricted in this way. It is clear that paras, (a), (b), (c), (d), (f) and (g) of s. 2 all have application in criminal proceedings and, this being so, it is difficult to see why Parliament should have intended to limit the application of one paragraph out of this group of provisions to civil cases, particularly when it is remembered that Parliament cannot legislate in

[Page 201]

the field of civil procedure in provincial courts. The impact of para. (e), on the interpretation suggested, would be limited, as indicated in the Russell case, to hearings before federal administrative boards or tribunals exercising judicial or quasi-judicial functions.

The various paragraphs in s. 2 particularize aspects of those human rights and fundamental freedoms defined in s. 1. Paragraph (a) of s. 1 refers to the right to life, liberty and security of the person, as well as to enjoyment of property and the right not to be deprived thereof except by due process of law. The right to a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations, provided for in s. 2 (e), relates back to those rights guaranteed by s. 1. In my opinion it includes the right to a fair hearing in criminal proceedings.

When s. 613 (4) of the Code is to be construed, it must be done in a manner which does not abridge or infringe those rights. In my opinion a fair hearing of a criminal trial includes the matter of sentence, and, accordingly, the power to pass sentence is a power which can only be exercised after a fair hearing on that issue. The appellants had the right to be heard on that issue before sentence was passed.

Counsel for the respondent contended that this Court was without jurisdiction to deal with this matter, in the light of the judgment of this Court in Goldhar v. R.[5], in that the issue involved was as to sentence. That case concerned an application for leave to appeal from a judgment of the Court of Appeal for Ontario on an appeal from sentence. The issue before the Court of Appeal was as to whether the sentence imposed at trial was one which, in law, could legally be imposed on conviction of the offence charged. Leave to appeal to this Court was refused on the ground that this Court did not have jurisdiction to entertain an appeal against a

[Page 202]

sentence imposed for the commission of an indictable offence.

In the present case the appellants are before the Court by virtue of their right of appeal under s. 618 (2) (a) (formerly s. 597 (2) (a)), which provides as follows:

(2) A person

(a) who is acquitted of an indictable offence other than

(i) an offence punishable by death, or

(ii) by reason of the special verdict of not guilty on account of insanity, and whose acquittal is set aside by the court of appeal,

may appeal to the Supreme Court of Canada on a question of law.

This provision gives an appeal as of right to a person whose acquittal at trial has been set aside by a court of appeal, on a question of law. There has been no question of an appeal on sentence to the Court of Appeal since there was no sentence passed at trial. The first imposition of sentence was made by the Court of Appeal.

The basic issue presently under consideration does not relate to the length of the sentence imposed, nor as to the power of the Court of Appeal to impose a sentence of that length, but rather relates to the right of the Court of Appeal to deal with the matter of sentence at all without first having given to the appellants the opportunity to exercise their right to be heard.

I am not prepared to interpret the Goldhar case as authority for the proposition that this Court, in relation to an appeal properly before it, has no power to interfere where a court of appeal has acted improperly, under the Criminal Code, solely because the matter in issue affected the imposition of sentence. This appeal is properly before the Court, and, that being so, the Court is entitled to make any order which the Court of Appeal might have made, or any order necessary to give effect to the judgment of this Court (s. 623).

[Page 203]

In R. v. McKay[6], this Court dealt with a criminal appeal from the Court of Appeal for Ontario which, with one judge dissenting, had set aside a conviction on the ground that there was no evidence, implicating the accused, to go to the jury. The appeal to this Court was allowed. The Court of Appeal had not determined whether or not, if there were evidence, the verdict should be set aside as unreasonable. If the Court of Appeal had set aside the verdict on that ground, there could have been no appeal to this Court, that question not being one of law. This Court held, however, that it had power to restore the jury verdict, rather than to remit the case to the Court of Appeal to consider that issue. This conclusion was reached on the basis that this Court, once seized of the appeal, has complete authority to direct the remedy which the court appealed from ought to have granted.

Reference was made in the majority judgment in that case to the reasons of Sir Lyman Duff in the case of Manchuk v. R.[7]. In that case, the appellant had been convicted of murder at a second trial, after a conviction of murder at the first trial had been set aside by the court of appeal. His appeal to the court of appeal after the second conviction failed, but his appeal to this Court succeeded. This Court held that it had authority, instead of ordering a new trial, to substitute a verdict of manslaughter, and also to impose a sentence of life imprisonment.

The McKay case was followed recently in this Court in the case of R. v. Borg[8].

[Page 204]

In the present case the Court is seized of the appeal. An outright dismissal of the appeal would result in the maintenance of the order of the Court of Appeal imposing sentence which, for the reasons already given, I do not think it could properly make. In my opinion this Court has jurisdiction to make an order appropriate to these circumstances.

It is then necessary to consider what is the appropriate order to be made. Counsel for the appellants asks that the matter of sentence be remitted to the magistrate, which was the course suggested by Chief Justice Smith in the Court of Appeal. Counsel points out that such a course was adopted by the Court of Appeal for Ontario in Ashcroft v. R.[9]. A similar procedure was followed by the Appellate Division of the Supreme Court of Alberta in the case of Wild v. R.[10], which came to this Court[11], on another issue.

However, the imposition of sentence, under s. 613 (4), is a duty primarily placed on the court of appeal. In the present case the majority of the Court of Appeal decided to pass sentence after allowing the appeal from acquittal. I do not think it would be proper for this Court to order that the matter of sentence be referred back to the magistrate. In my opinion the case should be remitted to the Court of Appeal to pass sentence, after the appellants have been given the opportunity to make submissions to that Court on that matter.

In the result, I would dismiss this appeal on the merits, but remit the case to the Court of Appeal to pass sentence, after receiving any submissions which the appellants wish to make, or to have made on their behalf, with respect to that matter.

Appeal dismissed.

Solicitors for the appellants: Zuken, Penner, Larsen & Carbert, Winnipeg.

[Page 205]

Solicitor for the respondent: The Attorney General for Manitoba.