Loos v. R., [1971] SCR 165

Supreme Court of Canada

Loos v. R., [1971] S.C.R. 165

Date: 1971-02-01

David Roger Loos Appellant;

and

Her Majesty The Queen Respondent.

1970: November 17; 1971: February 1.

Present: Fauteux C.J. and Martland, Judson, Ritchie and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Indecent assault—Conviction by magistrate—Jurisdiction of judge of Supreme Court to declare accused a dangerous sexual offender—Jurisdiction of Court of Appeal to order new hearing—Criminal Code, 1953-54 (Can.), c. 51, ss. 2(10), 468, 659, 661, 662, 667.

The appellant was convicted of indecent assault by a magistrate without a jury and was sentenced to a term of imprisonment of ten years. An application to have him declared to be a dangerous sexual offender was filed in the Supreme Court and was

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heard by a judge of the Supreme Court. The declaration was made and a sentence of preventive detention was imposed. The Court of Appeal allowed the appeal and ordered a new hearing. The appellant was granted leave to appeal to this Court and contended that the finding at trial and the judgment of the Court of Appeal were both nullities because the judge who entertained the application, not being “any other judge or magistrate who might have held or sat in the same Court”, was without jurisdiction to do so, and, alternatively, that the Court of Appeal was without jurisdiction to order a new hearing.

Held: The appeal should be allowed.

The trial judge was without jurisdiction to hear the application. The phrase “the same Court” in s. 662(4) of the Code must refer to “the judge or magistrate who sentenced the accused”, and as the accused elected in this case to be tried by a magistrate, the application to have him declared to be a dangerous sexual offender must be heard by another magistrate to accord with the meaning of Part XVI of the Code.

The Court of Appeal was without jurisdiction to order a new hearing. The 1969 amendment to s. 667 (2a) of the Code, which empowers the Court of Appeal to order a new hearing, could not act retrospectively to affect the appellant’s rights which were fixed by his notice of motion for leave to appeal as of a date prior to the amendment. Accordingly, the Court of Appeal could only have quashed the sentence of preventive detention and restored the sentence for a definite term.

APPEAL from a judgment of the Court of Appeal for British Columbia1, allowing an appeal from a finding that the appellant was a dangerous sexual offender and ordering a new hearing. Appeal allowed.

C.R. Kennedy, for the appellant.

W.G. Burke-Robertson, Q.C., for the respondent.

The judgment of the Court was delivered by

JUDSON J.—This is an appeal from a judgment of the Court of Appeal for British Columbia[1] which allowed an appeal by the accused from a finding that he was a dangerous sexual offender,

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and ordered a new hearing. On this appeal, the accused contends that the finding at trial and the judgment of the Court of Appeal are both nullities because the judge who entertained the application was without jurisdiction to do so, and, alternatively, that the Court of Appeal was without jurisdiction to order a new hearing, being only empowered to quash the finding and sentence at trial.

The appellant was charged with indecent assault under s. 148 of the Criminal Code. Pursuant to his right under s. 468 in Part XVI, he elected to be tried by a magistrate without a jury. He was convicted on December 23, 1968, before Magistrate Denroche, and on January 9, 1969, was sentenced to a term of imprisonment of ten years. A Notice of Application to have Loos declared to be a dangerous sexual offender was then filed in the Supreme Court of British Columbia on February 27, 1969, and on being heard on June 4, Mr. Justice Dohm of the Supreme Court made the declaration and imposed a sentence of preventive detention upon him in lieu of the sentence imposed on January 9, 1969.

A Notice of Motion for Leave to Appeal dated July 3, 1969, was filed in the Court of Appeal on July 7, 1969. After several adjournments sine die for the purpose of amending the notice, the matter came on for hearing on April 23, 1970, and the Court of Appeal allowed the appeal and ordered a new hearing in judgment rendered May 8, 1970. The accused now appeals from that judgment.

The first ground of appeal involves the interpretation of s. 662(4) of the Code:

s. 662(4) Where an application under subsection (1) of section 660 or subsection (1) of section 661 has not been heard before the accused is sentenced for the offence for which he has been convicted, the application shall not be heard by the Judge or Magistrate who sentenced the accused but may be heard by any other Judge or Magistrate who might have held or sat in the same Court.

The appellant contends that Dohm J. was without jurisdiction to hear the application because he was not “any other Judge or Magistrate who might have held or sat in the same Court.”

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Section 659 defined “court” for the purposes of s. 662, and it states:

659. In this Part,

(a) “court” means

(i) a superior court of criminal jurisdiction, or

(ii) a court of criminal jurisdiction.

Section 2(10) defines the latter term:

2.(10) “court of criminal jurisdiction” means (a) a court of general or quarter sessions of the peace, when presided over by a superior court judge …

(b) a magistrate or judge acting under Part XVI, and …

The relevant provision, 10(b), refers to Part XVI within which s. 468 gives to an accused the right to elect trial on an indictable offence before a magistrate without a jury, a judge without a jury, or a court composed of a judge with jury.

The appellant elected to be tried by a magistrate and was convicted and sentenced. Section 661 allows for an application to be made to have the accused declared a dangerous sexual offender, and as to sentence, subsection (3) provides:

661. (3) Where the Court finds that the accused is a dangerous sexual offender it shall … impose upon the accused a sentence of preventive detention in lieu of any other sentence that might be imposed for the offence of which he was convicted or that was imposed for such offence, or in addition to any sentence that was imposed for such offence if the sentence has expired.

In my opinion this section reinforces the view that an application thereunder is essentially a continuation of proceedings which led to the conviction. The majority of this Court have expressed this opinion in Sanders v. Regina.[2] That case involved an application made before the accused was sentenced, but it is no less applicable for that reason.

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Section 662(4) provides that if the accused has already been sentenced, the application is to be heard “by any other judge or magistrate who might have held or sat in the same court.” The phrase “the same Court” must refer to “the judge or magistrate who sentenced the accused”, and as the accused elected to be tried by a magistrate, the application must be heard by another magistrate to accord with the meaning of this Part. The accused has no further right to elect once the application is made, and there is no reason to grant such a right to the Crown.

On this point, I am in agreement with the dissenting opinion of Taggart J.A. in the Court below, and accordingly both the judgments of the trial judge and the Court of Appeal are null and void, as the trial judge was without jurisdiction to hear the application.

The majority of the Court of Appeal were of the opinion that the trial judge had jurisdiction, but allowed the appeal on the ground that two psychiatrists who gave evidence at the hearing took into account prior convictions of the accused. As a result, the Court of Appeal ordered a new hearing. The appellant contends that they were without jurisdiction to so order, being only entitled to quash the sentence of preventive detention and to impose one in respect of the offence committed. The Court of Appeal were acting pursuant to s. 667 (2a) of the Code as enacted by 1969 (Can.), c. 38, s. 80, which reads:

667. (2a) On appeal against a sentence of preventive detention the court of appeal may

(a) quash such sentence and impose any sentence that might have been imposed in respect of the offence for which the appellant was convicted, or order a new hearing; or

(b) dismiss the appeal.

The part I have emphasized was added to the section by this amendment, which was proclaimed on July 30, 1969, to be effective on August 26, 1969. The appellant had filed his Notice of Motion for Leave to Appeal on July 7, 1969, and thereby fixed his substantive rights on appeal as of that date, at which time the Court of Appeal had no

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jurisdiction to order a new hearing. The amendment could not act retrospectively to affect the appellant as his rights are preserved by s. 19 of the Interpretation Act, R.S.C. 1952, c. 158. Accordingly, the Court of Appeal could only have quashed the sentence of preventive detention and restored the sentence for a definite term.

The appellant succeeds on both grounds of appeal, either of which results in the restoration of the sentence of ten years imprisonment imposed upon him by the magistrate.

I would, therefore, allow the appeal.

Appeal allowed.

Solicitor for the appellant: C.R. Kennedy, Vancouver.

Solicitor for the respondent: G.L. Murray, Vancouver.