Tennen v. R., [1960] SCR 302

Supreme Court of Canada

Tennen v. R., [1960] S.C.R. 302

Date: 1960-01-26

Esther Tennen (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1959: October 8; 1960: January 26.

Present: Taschereau, Cartwright, Fauteux, Abbott, Martland, Judson and Ritchie JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Summary convictions—Plea of guilty—Whether right to appeal—Trial de novo—Whether right to withdraw plea—Discretion of County Court Judge—Conviction for non-payment of sales taxes—Criminal Code, 1958-54 (Can.), c. 51, ss. 720, 727—The Excise Tax Act, R.S.C. 1952, c. 100.

The accused, the registered owner of a business, was summarily convicted and fined by a magistrate on her plea of guilty to a charge of failing to pay sales tax. The County Court judge dismissed her appeal and refused to strike out the plea of guilty on the accused’s affidavit that she was only the nominal owner of the business which was under the complete control and operation of her husband. The Court of Appeal dismissed her further appeal and she appealed to this Court.

Held: The appeal should be dismissed.

An accused who has pleaded guilty in a summary conviction Court has the same right to apply for leave to change such plea on his appeal by way of a trial de novo under s. 727 of the Code as he would have had in the Court below before sentence. However, the decision as to whether or not permission to withdraw the plea of guilty should be given is a matter of discretion for the tribunal, and where, as here, such discretion was exercised judicially, it should not be interfered with.

APPEAL from a judgment of the Court of Appeal for Ontario[1], affirming the conviction of the Appellant. Appeal dismissed.

E.R. Murray, for the appellant.

G.W. Ford, Q.C., for the respondent.

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The judgment of the Court was delivered by

RITCHIE J.:—Two informations were laid against the appellant “carrying on business under the name and style of Majestic Lamp Company” for failing to pay the sales tax imposed by Part VI of the Excise Tax Act, R.S.C., 1952, c. 100, and upon these matters coming on for hearing before S.A. Williamson, Esq., a Justice of the Peace in and for the County of York, the appellant did not appear personally but was represented by duly authorized counsel who pleaded “guilty” on her behalf whereupon she was duly convicted of both offences and sentenced in respect of one information to a fine of $466.93 or thirty days in jail and in respect of the other information to a fine of $746.30 or alternatively to thirty days in jail.

In the proceedings before the magistrate and after the pleas of “guilty” had been entered, the evidence of a collection officer of the Department of National Revenue was called on behalf of the Crown, in the course of which it was proved that the taxes referred to in the two informations had not been paid to date and that the appellant was the sole owner of the Majestic Lamp Company.

In due time the appellant filed and served one notice of appeal in respect of both offences to the County Court of the County of York upon the grounds following:

1. The learned magistrate erred in his finding that the information disclosed an offence;

2. The learned magistrate erred in failing to apply correctly the law and the relevant provisions of the Excise Tax Act, the Bankruptcy Act, and the Criminal Code to the facts of this case;

3. The learned magistrate erred in finding that the accused had failed to comply with the said Act;

4. The learned magistrate lacked jurisdiction to order the accused to pay the arrears of sales tax herein.

Upon the appeal coming on for hearing before His Honour, Judge Shea, there was filed with the Court an affidavit of the appellant setting forth that while she was the registered owner of Majestic Lamp Company she had never at any time operated or exercised any control of the said business nor drawn any salary or profits nor taken any interest in the said business which was under the complete control and operation of her husband. In this affidavit she also stated that she had never been aware of the payment

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or non-payment of any sales tax until she received the summonses and that a month or two before the date of the informations her husband had informed her that the business was failing and that she was bankrupt. She stated also that her husband had advised her that the sales tax had not been paid and that she should plead “guilty”, and further that she never realized that she would have to pay any money or be subject to a jail sentence, believing that the money would have to be collected out of the bankrupt estate. The affidavit concludes by stating that the appellant was at all times up to and including the time of her conviction totally ignorant of the whole procedure and completely under the influence of her husband and that she had been advised that she had a good defence in law and on the merits and that she was not guilty of the offences.

In the course of the hearing before the learned County Court judge, there was a lengthy argument between counsel, and conflicting decisions were cited as to whether an appeal lay in this case under the provisions of ss. 720 to 727 of the Criminal Code, and in the course of these submissions counsel on behalf of the appellant made the following statement:

The facts they are not in dispute; the evidence was put in by the crown at the magistrate’s court proceedings; we do not quarrel with that, as far as the facts go, and I do not think they are in dispute. The sole question is whether the conviction itself is bad in law.

The learned County Court judge, having the aforesaid affidavit before him and having heard what was said by the appellant’s counsel, made the following statement:

…I do not think it will be necessary to have this plea of guilty renewed; there is no exceptional circumstance here. This woman has pleaded guilty, and then she found out that she might be called on to pay money and that is something else.

That is the whole point; and not only was she represented by counsel at the trial,—anyway, she pleaded guilty…

I decline to strike out the plea of guilty.

The learned County Court judge saw no merit in the other grounds of appeal and the appeal was accordingly dismissed. The appellant appealed from this decision to the Court of Appeal for Ontario[2] upon the following grounds:

1. The learned County Court Judge erred in holding that the Appellant was precluded from her right to appeal by reason of her having pleaded guilty before the Magistrate.

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2. The learned County Court Judge erred in refusing to hear evidence on the ground that the Appellant was precluded from adducing evidence by reason of her having pleaded guilty before the Magistrate.

3. The learned County Court Judge misdirected himself with respect to the right of the Appellant to change her plea on a trial de novo.

4. The learned County Court Judge erred in holding in effect that the plea of guilty was not only an admission as to fact but as to law.

5. The learned County Court Judge erred in refusing the Appellant the right to argue that the Crown had no right to proceed against the Appellant notwithstanding her plea of guilty.

On this appeal two identical notices of appeal were prepared respecting the two offences of which the appellant had been convicted, and the appeals having been heard together Roach J.A. rendered the decision of the Court dismissing both appeals. It is from this decision and the order made pursuant thereto that the appellant now appeals to this Court upon the following grounds:

(a) That the proceedings in the County Court of the County of York were a nullity because the accused was not arraigned on the charges or asked to plead to same;

(b) That the learned County Court judge erred in refusing to hear evidence on the ground that the appellant was precluded from adducing evidence by reason of her having pleaded guilty before the Magistrate;

(c) That the learned County Court judge misdirected himself with respect to the right of the appellant to change her plea on a trial de novo;

(d) Such further and other grounds as counsel may advise and which this Honourable Court may deem sufficient grounds for appeal.

After reading the transcript of the proceedings before the County Court judge which are included in the appeal book in the present case, I am satisfied that the second and third of the above grounds disclose a misunderstanding of what took place in the County Court.

As to the first ground, it will appear from what has been said in the cases of Regina v. Dennis[3] and Regina v. Bamsey[4] that I am of opinion that the arraignment and plea form no essential part of the trial de novo contemplated by s. 727 of the Criminal Code, but that an accused who has pleaded

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guilty in the summary conviction Court has the same right to apply for leave to change his plea before the Appeal Court as he would have had in the Court below before sentence.

As to the second and third of the above grounds, it is enough to say that the record of the proceedings in the County Court does not disclose that the learned County Court judge either precluded the appellant from adducing evidence or misdirected himself respecting her right to change her plea.

The learned County Court judge, having read the appellant’s affidavit and heard the argument, exercised his discretion by declining to strike out the plea of guilty. That he was entitled to follow this course is made apparent by what was said by Cartwright J., speaking on behalf of the majority of the Court, in Thibodeau v. The Queen[5]:

…it may first be observed that it is clear that at any time before sentence the Court has power to permit a plea of guilty to be withdrawn. As to this it is sufficient to refer to the following cases; R. v. Plummer, (1902) 2 K.B. 339, The King v. Lamothe, 15 C.C.C. 61, R. v. Guay, 23 C.C.C. 243 at 245-246, and R. v. Nelson, 32 C.C.C. 75. These cases make it equally clear that the decision whether or not permission to withdraw a plea of guilty should be given rests in the discretion of the Judge to whom the application for such permission is made and that this discretion, if exercised judicially, will not be lightly interfered with.

(The italics are mine.)

As I have indicated, I am of opinion that the learned County Court judge in no way exceeded his jurisdiction and that his reasons and decisions in refusing to allow the appellant to change her plea disclose no error in law.

I can see no other grounds for allowing this appeal and in fact none were seriously urged at the argument. The appeal must, therefore, be dismissed.

Appeal dismissed.

Solicitors for the appellant: Freedman, Cohl, Murray & Osak, Toronto.

Solicitor for the respondent: G.W. Ford, Toronto.