Hunt v. The Queen, [1979] 2 SCR 73

Supreme Court of Canada

Hunt v. The Queen, [1979] 2 S.C.R. 73

Date: 1979-03-20

James Charles Hunt Appellant;

and

Her Majesty The Queen Respondent.

1979: February 26, 27; 1979: March 20.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Appellant found guilty of theft by trial judge—Absolute discharge set aside on appeal to Court of Appeal—Right of Attorney General to appeal against direction for absolute discharge—Criminal Code, ss. 601, 605(1), 662.1(1), (3).

The appellant was found guilty of the theft of money exceeding $200 by a judge of the County Court of Vancouver. The trial judge granted to the appellant an absolute discharge pursuant to the provisions of subs. 662.1(1) of the Criminal Code.

The respondent applied to the Court of Appeal for British Columbia for leave to appeal against the sentence of absolute discharge. Leave was granted, the appeal was allowed, the direction for an absolute discharge was set aside and a sentence of imprisonment for one year was imposed. From that judgment, with leave, the present appeal was brought.

Subsection (3)

of s. 662.1 contains provisions for an appeal by the accused or by the Attorney General from a direction made under subs. 662.1(1). Paragraph 605(1)(a), referred to in para, (a.1) of subs. 662.1(3), gives to the Attorney General a right of appeal to the Court of Appeal against a judgment or verdict of acquittal on any ground of appeal involving a question of law alone.

The appellant submitted that para. (a.1) of subs. 662.1 (3) provides the only right of appeal given to the Attorney General from a direction for an absolute discharge. That right of appeal is limited, by the reference to para. 605(1)(a), to an appeal on a question of law alone. As the appeal by the Attorney General to the Court of Appeal in the present case was an appeal only as against sentence, and did not involve any question of law, the Court of Appeal did not have the power to entertain it.

The respondent contended that the right of appeal given to the Attorney General by para (a.1) is not exclusive and that, in addition to that right of appeal, the Attorney General can, with leave, appeal against a direction for absolute discharge, as a matter of sentence.

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Paragraph (b) of subs. 605(1) states that the Attorney General, or counsel instructed by him for the purpose, may appeal to the Court of Appeal “with leave of the Court of Appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law”. The word “sentence” as defined in s. 601 includes a disposition made under subs. 662.1(1). The definition of “sentence” in s. 601 applies to Part XVIII of the Criminal Code, in which part para. (b) of subs. 605(1) is found. Consequently, when that paragraph gives to the Attorney General the right, with leave, to appeal against sentence, it confers a right to appeal, with leave, against a disposition made under subs. 662.1(1).

Held: The appeal should be dismissed.

The Court agreed with the submission of the respondent.

The right of the Attorney General, under para. 605(1)(b), to appeal against sentence arises in respect of an accused who has been sentenced in proceedings by indictment. In the absence of special legislative provision, the right of appeal against sentence in relation to a direction made under subs. 662.1(1) would not exist since a discharge could hardly be regarded as a sentence. However, this difficulty was met by amending the meaning of “sentence” in s. 601 so as to include within that definition a disposition made under subs. 662.1(1). That amendment enabled the Attorney General, with leave, to appeal against a direction under subs. 662.1(1), by resorting to para. 605(1)(b) because it would be appealing against “the sentence passed by a trial court in proceedings by indictment”, and so would be squarely within the paragraph.

Unless the amendment of the definition of the word “sentence” had that effect, it would be redundant and meaningless. Parliament introduced that amendment in the same statute which created the right to direct an absolute or conditional discharge. It was repeated in the same statute which revised the form of subs. 662.1(3). It was obvious that its purpose was to maintain a right of appeal against a direction for an absolute or conditional discharge as a matter of sentence and effect should be given to that purpose. Otherwise, there would be the anomalous situation that if., in the present case, a minimal sentence of imprisonment had been imposed, the Attorney General could seek leave to appeal against it if he considered the punishment inadequate, but because no punishment at all was imposed, no appeal would be possible.

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Miles v. The Queen, [1977] 1 S.C.R. 195, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia allowing an appeal by the Crown against the granting of an absolute discharge to the appellant following his being found guilty of the theft of money exceeding $200. Appeal dismissed.

Peter C.P. Thompson, for the appellant.

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

The judgment of the Court was delivered by

MARTLAND J.—The appellant was found guilty of the theft of money exceeding $200 by a judge of the County Court of Vancouver. The trial judge granted to the appellant an absolute discharge pursuant to the provisions of subs. 662.1(1) of the Criminal Code.

The respondent applied to the Court of Appeal for British Columbia for leave to appeal against the sentence of absolute discharge. Leave was granted, the appeal was allowed, the direction for an absolute discharge was set aside and a sentence of imprisonment for one year was imposed. From that judgment, with leave, the present appeal is brought.

The provision for an absolute discharge, after a finding of guilt, is contained in subs. 662.1(1) of the Criminal Code, which provides as follows:

662.1(1) Where an accused, other than a corporation, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable, in the proceedings commenced against him, by imprisonment for fourteen years or for life, the court before which he appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or upon the conditions prescribed in a probation order.

Subsection (3)

of s. 662.1 contains provisions for an appeal by the accused or by the Attorney General from a direction made under subs. 662.1(1). They are as follows:

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(3) Where a court directs under subsection (1) that an accused be discharged the accused shall be deemed not to have been convicted of the offence to which he pleaded guilty or of which he was found guilty and to which the discharge relates except that

(a) the accused may appeal from the direction that the accused be discharged as if that direction were a conviction in respect of the offence to which the discharge relates;

(a.1) the Attorney General may appeal from the direction that the accused be discharged, as if that direction were a judgment or verdict of acquittal referred to in paragraph 605(1)(a);

Paragraph 605(1)(a), referred to in para. (a.1) above, gives to the Attorney General a right of appeal to the court of appeal against a judgment or verdict of acquittal on any ground of appeal involving a question of law alone. It reads as follows:

605(1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone.

The submission of the appellant is that para. (a.1) of subs. 662.1(3) provides the only right of appeal given to the Attorney General from a direction for an absolute discharge. That right of appeal is limited, by the reference to para. 605(1)(a), to an appeal on a question of law alone. As the appeal by the Attorney General to the Court of Appeal in the present case was an appeal only as against sentence, and did not involve any question of law, the Court of Appeal did not have the power. to entertain it.

The contention of the respondent is that the right of appeal given to the Attorney General by para. (a.1) is not exclusive and that, in addition to that right of appeal, the Attorney General can, with leave, appeal against a direction for absolute discharge, as a matter of sentence.

Paragraph (b) of subs. 605(1) states that the Attorney General, or counsel instructed by him for the purpose, may appeal to the court of appeal:

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(b) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law.

The respondent refers to s. 601 of the Criminal Code which defines the word “sentence” as follows:

“sentence” includes a declaration made under subsection 181(3), an order made under subsection 98(1) or (2), subsection 178.21(1) or 218(6), section 653, 654 or 655 and a disposition made under subsection 234(2), 236(2), 662.1(1), 663(1) or 664(3) or (4);

This definition applies to Part XVIII of the Criminal Code, in which Part para. (b) subs. 605(1) is found. Consequently, when that paragraph gives to the Attorney General the right, with leave, to appeal against sentence, it confers a right to appeal, with leave, against a disposition made under subs. 662.1(1).

It should be mentioned that the definition of the word “sentence” in Part XXIV, dealing with summary convictions, in subs. 720(1) also includes a disposition made under subs. 662.1(1), and that para. 748(b)(ii) gives the Attorney General a right of appeal against sentence.

I agree with the submission of the respondent.

The provisions of the Criminal Code providing for absolute or conditional discharges, in certain circumstances, are contained in the Criminal Law Amendment Act, 1972, 1972 (Can.), c. 13, in s. 57, which introduced s. 662.1 into the Code. At the same time, s. 52 was enacted which repealed the definition of “sentence” in s. 601 of the Code and replaced it with a new definition which included a disposition made under subs. 662.1(1).

Subsection (3)

of s. 662.1, as originally enacted, read as follows:

3. Where a court directs under subsection (1) that an accused be discharged, the accused shall be deemed not to have been convicted of the offence to which he pleads

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guilty or of which he was found guilty and to which the discharge relates except that

(a) the accused or the Attorney General may appeal from the direction that the accused be discharged as if that direction were a conviction in respect of the offence to which the discharge relates or, in the case of an appeal by the Attorney General, a finding that the accused was not guilty of that offence; and

The definition of “sentence” was repealed and a new definition substituted by 1973-74 (Can.), c. 38, s. 6.1 and again by c. 50, s. 3, but in each case the reference to “a disposition made under subsection 662.1(1)” remained unchanged.

The Criminal Law Amendment Act, 1975, 1974-75-76 (Can.), c. 93, repealed para. 662.1(3)(a) (cited above) and substituted instead paras, (a) and (a.1), already quoted. Again, in this statute, the definition of “sentence” was repealed and a new one substituted, but the reference to a disposition made under subs. 662.1(1) remained the same.

Counsel for the appellant suggested that the changes made in subs. 662.1(3) supported his contention that it was intended that the only appeal permitted to the Attorney General from a direction for an absolute discharge made under subs. 662.1(1) was on a question of law. I do not accept this contention. In my opinion the change in subs. (3) was made for purposes of clarity.

The earlier provision as to an appeal by the accused was not altered, but was dealt with separately in the new paragraph (a). The former provision, dealing with the right of appeal of the Attorney General, referred to an appeal from the direction as if the direction were “a finding that the accused was not guilty of that offence”.

Paragraph 605(1)(a) provides for an appeal by the Attorney General against a judgment or verdict of acquittal. No appeal is provided from a “finding” and the words “finding that the accused was not guilty of that offence” are not appropriate when it is remembered that subs. 662.1(1) only comes into operation after an accused has pleaded guilty or has been found guilty of an offence. The

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words used were inapt and, accordingly, para. (a.1) was enacted giving a right of appeal “as if that direction were a judgment or verdict of acquittal referred to in paragraph 605(1)(a)”.

Subsection 605(1) gives to the Attorney General, in respect of indictable offences, two rights of appeal. If the accused has been acquitted, there is a right to appeal from the acquittal on a question of law. If the accused has been convicted, there is a right of appeal, with leave, in respect of the sentence imposed.

The provision respecting the direction for an absolute or conditional discharge in subs. 662.1(1) created a somewhat anomalous situation. The accused had pleaded guilty or been found guilty but, nonetheless, he was “deemed not to have been convicted of the offence”. In the result, as he had not been convicted, there was no right of appeal from conviction for the accused. As he had not been acquitted, there was no right of appeal for the Attorney General of the kind provided for in para. 605(1)(a).

That difficulty has been met in the present subsection 662.1(3) by enabling the accused, under para, (a), to appeal, as if he had been convicted and by enabling the Attorney General to appeal as if the accused had been acquitted.

Subsection (3) is not concerned with appeals from a direction made under subs. 662.1(3) when considered as a matter of sentence. The word “sentence” does not appear in the subsection. It is designed to enable the accused to appeal against the finding of guilt. It is designed to enable the Attorney General to contest, on the merits, the making of the direction. The occasions when it might be used are obviously limited, but it is conceivable that the Attorney General might seek to contest, as a matter of law, the right of the court to invoke the section. It is also possible, in a case where the accused has been found guilty of an included offence that the Attorney General might contend that, in law, he ought to have been found guilty of the major offence.

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Subsection 662.1(1) also created difficulty in relation to the right of the Attorney General to appeal from a direction for an absolute or conditional discharge when considered as a matter of punishment. The right of the Attorney General, under para. 605(1)(b), to appeal against sentence arises in respect of an accused who has been sentenced in proceedings by indictment. In the absence of special legislative provision, the right of appeal against sentence in relation to a direction made under subs. 662.1(1) would not exist since a discharge can hardly be regarded as a sentence. However, this difficulty was met by amending the meaning of “sentence” in s. 601 so as to include within that definition a disposition made under subs. 662.1(1). That amendment enabled the Attorney General, with leave, to appeal against a direction under subs. 662.1(1), by resorting to para. 605(1)(b) because it would be appealing against “the sentence passed by a trial court in proceedings by indictment”, and so would be squarely within the paragraph.

Unless the amendment of the definition of the word “sentence” had that effect, it would be redundant and meaningless. Parliament introduced that amendment in the same statute which created the right to direct an absolute or conditional discharge. It was repeated in the same statute which revised the form of subs. 662.1(3). It seems obvious to me that its purpose was to maintain a right of appeal against a direction for an absolute or conditional discharge as a matter of sentence and, in my opinion, effect should be given to that purpose. Otherwise, we would have the anomalous situation that if, in the present case, a minimal sentence of imprisonment had been imposed, the Attorney General could seek leave to appeal against it if he considered the punishment inadequate, but because no punishment at all is imposed, no appeal would be possible.

Reference was made in argument to the judgment of this Court in Miles v. The Queen[1]. In that case, which dealt with the effect of subs. 662.1(3)

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as it stood before the amendment made by the Criminal Law Amendment Act, 1975, it was held that the Attorney General could appeal from a direction under subs. 662.1(1) as a matter of sentence by reason of the combined effect of the amendment of the definition of the word “sentence” in s. 601 and the right of appeal from sentence given by para. 605(1)(b). The contention of the appellant that, because of the enactment of para. 662.1(3)(a), an appeal from a direction for an absolute discharge by the Attorney General was limited to the right conferred by para. 605(1)(a) was rejected.

The wording of subs. 662.1(3) has been changed, and so the interpretation, in Miles, of the meaning of para. (a) of that subsection as it then stood is no longer applicable, but the definition of “sentence” has not been altered, nor have the provisions of para. 605(1)(b). For the reasons which I have outlined, it is my view that the amendment of subs. 662.1(3) does not operate so as to take away the right of appeal of the Attorney General which was then found to exist.

For these reasons I would dismiss this appeal.

Appeal dismissed.

Solicitors for the appellant: Scott & Aylen, Ottawa.

Solicitor for the respondent: John E. Hall, Vancouver.