R. v. Gardiner, [1982] 2 SCR 368

Supreme Court of Canada

R. v. Gardiner, [1982] 2 S.C.R. 368

Date: 1982-08-09

Her Majesty The Queen (Plaintiff) Appellant;

and

Obed Ebenezer Gardiner (Defendant) Respondent.

File No.: 15806.

1981: November 23; 1982: August 9.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Appeal—Criminal law—Supreme Court of Canada jurisdiction—Whether jurisdiction to entertain appeal against sentence—Supreme Court Act, R.S.C. 1970, c. S-19 as amended, s. 41—Criminal Code, R.S.C. 1970, c. C-34 as amended, ss. 614, 618.

Criminal law—Indictable offence—Plea of guilty—Sentencing—Proper standard of proof of disputed aggravating facts.

Following respondent’s guilty plea, the trial judge, in the course of sentencing, assessed conflicting testimony given by the victim and the respondent as to the gravity of the offence. He found that the Crown need only prove the aggravating facts on a balance of probabilities, accepted the victim’s version and sentenced the respondent. The Court of Appeal allowed respondent’s appeal holding that the Crown must prove the aggravating facts beyond a reasonable doubt and reduced the sentence. This appeal raises two issues: (1) whether the Supreme Court of Canada has jurisdiction to entertain appeals arising out of sentencing and (2) if so, whether the Crown must prove aggravating facts beyond a reasonable doubt or upon a balance of probabilities.

Held (Laskin C.J. and Estey and McIntyre JJ. dissenting as to jurisdiction): The appeal should be dismissed.

Per Martland, Ritchie, Dickson and Chouinard JJ.: Appeals against sentence are included under s. 41(1) and not excluded by s. 41(3) of the Supreme Court Act. An expansive reading of s. 41(1) enables this Court to discharge its role better. Although the Court has the jurisdiction to assess fitness or quantum of sentence, as a matter of policy it should not do so. The rule against assessing fitness does not, however, exclude the assessment of important questions of law arising out of sen-

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tencing. The leave granting process is available to screen out these cases which do not give rise to legal issues of high importance. In this case the question of the proper standard of proof raises an issue of the legality, not the fitness of the sentence.

[Hill v. The Queen, [1977] 1 S.C.R. 827; Smith v. The Queen, [1959] S.C.R. 638; Parkes v. The Queen, [1956] S.C.R. 134, followed; Goldhar v. The Queen, [1960] S.C.R. 60; R. v. J. Alepin Frères Liée, [1965] S.C.R. 359; R. v. MacDonald, [1965] S.C.R. 831; Paul v. The Queen, [1960] S.C.R. 452, not followed; Goldhamer v. The King, [1924] S.C.R. 290, considered; Lake Erie and Detroit River Railway Co. v. Marsh (1904), 35 S.C.R. 197; United States of America v. Link and Green, [1955] S.C.R. 183; Ottawa Electric Co. v. Brennan (1901), 31 S.C.R. 311; Furlan v. City of Montreal, [1947] S.C.R. 216; Chagnon v. Normand (1889), 16 S.C.R. 661; Cully v. Ferdais (1900), 30 S.C.R. 330; McKenzie v. Hiscock, [1967] S.C.R. 781; Goodyear Tire and Rubber Co. of Canada Ltd. v. The Queen, [1956] S.C.R. 303; R. v. Zelensky, [1978] 2 S.C.R. 940; R. v. Skolnick, [1982] 2 S.C.R. 47; Lees v. The Queen, [1979] 2 S.C.R. 749; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265, referred to]

In deciding disputed facts in sentencing, a trial judge should not depart from the traditional criminal standard of proof beyond a reasonable doubt. Sentencing is the critical stage of the criminal process. Facts which justify the sanction are no less important than facts which justify the conviction. Crime and punishment are inextricably linked. Both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence militate in favour of the retention of the criminal standard of proof beyond a reasonable doubt.

[R. v. Cieslak (1977), 37 C.C.C. (2d) 7, overruled; R. v. Sayer, Ont. C.A., released February 27, 1976; R. v. Gortat and Pirog, [1973] Crim. L.R. 648; Alberton Fisheries Ltd. v. The King (1944), 17 M.P.R. 457; R. v. Maitland, [1963] S.A.S.R. 332; Law v. Deed, [1970] S.A.S.R. 374; O’Malley v. French (1971), 2 S.A.S.R. 110; Weaver v. Samuels, [1971] S.A.S.R. 116; R. v. Thompson (1975), 11 S.A.S.R. 217; R. v. Stehbens (1976), 14 S.A.S.R. 240; R. v. O’Neill, [1979] 2 N.S.W.

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L.R. 582; Bierkowski v. Pearson (1971), 18 F.L.R. 110; Browne v. Smith (1974), 4 A.L.R. 114; R. v. Browne, [1950] N.I.L.R. 20; R. v. Afrtee, [1947] N.I.L.R. 27; R. v. Pinder (1923), 40 C.C.C. 272; R. v. Christopher, Alta. C.A., unreported; R. v. Knight (1975), 27 C.C.C. (2d) 343; R. v. Wettlaufer, 6 W.C.B. 311; R. v. Parenteau, (1980), 52 C.C.C. (2d) 188; R. v. Dimora (1978), 45 C.C.C. (2d) 96; R. v. Boileau; R. v. Lepine (1979), 50 C.C.C. (2d) 189; R. v. Davis and Fancie (1976), 15 N.S.R. (2d) 461; R. v. Sadler, Engl. C.A. (Crim. Div.), November 22, 1973; R. v. Miller, Vella and Walker, Engl. C.A. (Crim. Div.), December 2, 1974; R. v. Taggart (1979), 1 Cr. App. R. (S.) 144; S. v. Manchester City Recorder, [1969] 3 All E.R. 1230; R. v. Proudlock, [1979] 1 S.C.R. 525; Dingwall v. J. Wharton (Shipping), Ltd., [1961] 2 Lloyd’s Rep. 213; United States v. Fatico, 458 F. Supp. 388 (1978); Gardner v. Florida, 430 U.S. 349, 51 L Ed 2d 393 (1977); Gregg v. Georgia, 428 U.S. 153, 49 L Ed 2d 859 (1976); Curr v. The Queen, [1972] S.C.R. 889; Williams v. New York, 337 U.S. 241, 93 L ed 1337 (1949), referred to]

Per Laskin C.J. and Estey and McIntyre JJ. (dissenting): This Court has no appellate jurisdiction to assess the quantum of a sentence and cannot acquire it by reason of alleged errors in the courts below in arriving at or in fixing the quantum. Here, the sentence imposed by the trial judge and reduced by the Court of Appeal was within the statutory limits of the offence. There was no question of legality—in the sense of the legal right to impose the particular sentence—or of constitutionality. This Court is a statutory court with circumscribed jurisdiction in criminal matters (s. 618 Cr. C) and s. 41(1) of the Supreme Court Act should not be opened to matters outside of the Criminal Code unless they relate to constitutionality or legality.

APPEAL from a judgment of the Court of Appeal for Ontario (1979), 52 C.C.C. (2d) 183, allowing respondent’s appeal from the sentence imposed following his plea of guilty of a charge of assault causing bodily harm. Appeal dismissed, Laskin C.J. and Estey and McIntyre JJ. dissenting on the question of jurisdiction.

S. Casey Hill, for the appellant.

Clayton C. Ruby, for the respondent.

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The reasons of Laskin C.J. and Estey and McIntyre JJ. were delivered by

THE CHIEF JUSTICE (dissenting)—This case raises an important question of jurisdiction, a question that is open notwithstanding that leave to appeal has been given: R. v. Warner, [1961] S.C.R. 144; R. v. J. Alepin Frères Ltée, [1965] S.C.R. 359; R. v. MacDonald, [1965] S.C.R. 831. The jurisdictional issue, raised by the Court suo motu, is simply whether this Court, a statutory Court, is entitled to entertain an appeal as to the proper standard of proof of disputed facts in a sentencing proceeding in respect of an indictable offence to which the accused pleaded guilty.

Counsel for the parties were alerted in advance that jurisdiction would be put in issue when the appeal came on for hearing, notwithstanding that the matter was not raised on the application for leave to appeal nor considered by them in their factums. However, after argument on jurisdiction the Court reserved judgment and felt it advisable to hear the parties on the merits since they had prepared their submissions without concern for jurisdiction, relying, of course, on the fact that leave to appeal had been given. Judgment was also reserved on the merits but they will only be reached if jurisdiction exists, and so I turn to consider that question. I should say at the outset that this is a case which both the Crown appellant and the respondent wish to have decided on the merits, and they joined in contending that this Court had jurisdiction to that end.

It has been and is the view of this Court that it has no jurisdiction to deal with the quantum of a sentence, whether too heavy a penalty was imposed or too light a penalty, so long as it was within the statutory limits. This follows from s. 618 of the Criminal Code in respect of sentences for indictable offences and from the view taken of s. 41(3) of the Supreme Court Act, R.S.C. 1970, c. S-19 in respect of the quantum of a sentence imposed upon a summary conviction. Moreover, this Court has not viewed its general jurisdictional authority in appeals under s. 41(1) of the Supreme Court Act

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as empowering it to entertain appeals as to the quantum of a legal sentence, although as Cartwright C.J. noted in R. v. MacDonald, supra, at p. 842, the words of the subsection are literally wide enough to embrace such appeals. Section 41(1) in its present formulation reads as follows:

41. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from such judgment is accordingly granted by the Supreme Court.

I would refer also to s. 41(3) which is in these words:

(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.

It is only fair to say that there has been no consistency in this Court in its approach to sentence questions, whether arising in relation to a sentence upon a conviction of an indictable offence or arising in relation to a sentence of preventive detention upon a finding that an accused is an habitual criminal. I shall come to the authorities shortly, but the important point to note in respect of what I have called inconsistency is that the issue of quantum appears to have been suppressed in some instances when it has been alleged that a question of law has arisen in a sentence proceeding, as it is alleged to arise here in respect of the proper standard of proof to be met by the Crown when seeking a heavier sentence because of

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aggravating circumstances which are disputed.

There is a central and, to me, a dominating point to be made. If this Court, as is conceded, has no appellate jurisdiction to assess the quantum of a sentence simpliciter, I do not see how it can acquire it by reason of alleged errors in the courts below in arriving at or in fixing quantum. There is some analogy here—I do not press it as perfect—with administrative law cases where, in order to overcome the effect of a privative clause, errors in the course of a proceeding are raised to the stature of jurisdictional errors when it is clear that the statutory body had jurisdiction to deal with the issues before it and was entitled to be wrong without courting review for errors of law.

A provincial court of appeal has jurisdiction, expressly given, to entertain an appeal against sentence upon a conviction of an indictable offence if leave to appeal is given by the court or a judge thereof, unless the sentence is one fixed by law: see Criminal Code, s. 603(1)(b) and s. 605(1)(b). Leave is generally sought at the time a sentence appeal comes on for hearing, and it is rarely refused. That, at least, was my own experience as a member of the Ontario Court of Appeal for almost five years. Rules of Court govern the procedure on appeal and the time period within which leave must be sought, but the time may be extended: see Criminal Code, s. 607(1) and (2). Excessive delay may well be a ground for refusing leave or refusing to extend the time but this, I understand, is not frequent. The courts of appeal prefer, in the interests of fairness, to dispose of sentence appeals on their merits. There is no such general appellate authority in respect of sentence conferred upon the Supreme Court of Canada.

The leading case in this Court on sentence appeals under the equivalent of our present statu-

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tory authority has been Goldhar v. The Queen, [1960] S.C.R. 60. It was distinguished, and in my opinion properly so, in Hill v. The Queen, [1977] 1 S.C.R. 827; and on a rehearing, Hill v. The Queen, [1977] 1 S.C.R. 827, which I will consider in due course. In the Hill cases, Pigeon J. spoke for the whole Court on the question of its jurisdiction to entertain an appeal from a determination of the provincial Court of Appeal that it had the power to increase a sentence imposed upon an accused upon a motion to that end by the Crown made during the hearing of a sentence appeal by the accused alone. Although I was in a minority of four on the question of the Court of Appeal’s power, I subscribed fully to the view expressed by Pigeon J. that this Court had jurisdiction because it was not called on to deal with a sentence appeal but with the legal authority of the provincial court of appeal. In the course of his reasons, Pigeon J. canvassed the cases on the issue now before us and he has, in so doing, relieved me of the necessity of going through them as meticulously as he did. Nonetheless, I do wish to review them to provide perspective for the present case.

Goldhar was an application for leave to appeal heard by a Bench of five. Fauteux J., as he then was, delivered the judgment of the Court (Cartwright J., as he then was, alone dissenting) and he held that this Court had no jurisdiction to entertain an appeal against a sentence imposed on a conviction of an indictable offence. I disagree with Pigeon J.’s observation in the Hill cases that Goldhar was not binding and should not be followed. Although I said in my reasons in the first Hill hearing, at p. 830, that I agreed with Pigeon J. that Goldhar should be overruled, this was only in the context of the issue in the Hill case and only in so far as Goldhar might be taken as prohibiting an appeal to this Court on the legality of a sentence or on the power of a Court to increase a sentence against which no appeal was taken. I can agree that Goldhar was not binding (none of our decisions now are, theoretically, binding) but it was unnecessary to say that it should not be followed when the Hill cases were of a completely

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different order than Goldhar.

Goldhar was decided at a time when the Supreme Court Act contained as s. 41(1) a provision which, for present purposes, was similar to the present section above quoted. It was preceded by Goldhamer v. The King, [1924] S.C.R. 290, an easier case for rejecting jurisdiction as to sentence, because when it was decided there was no provision in the Supreme Court Act conferring jurisdiction on this Court in criminal matters, nor was the Act even neutral as it now literally is, because it expressly excluded criminal causes from its conferment of appellate jurisdiction. Reliance had to be placed therefore on the then equivalent of the present s. 618 which spoke, inter alia, of appeals by leave from judgments setting aside or affirming a conviction of an indictable offence. Hence, jurisdiction was denied to entertain an appeal from a judgment of the Quebec Court of Appeal increasing a sentence. Goldhamer was, quite clearly, an easier case for refusal of jurisdiction than Goldhar.

Prior to Goldhar but after the introduction of s. 41(1) jurisdiction, this Court was called on to deal with an application for leave to appeal in Goodyear Tire and Rubber Co. of Canada Ltd. v. The Queen, [1956] S.C.R. 303, reported on the merits only. Pigeon J.’s research in the Hill cases disclosed that the question of the Court’s jurisdiction was raised on the application for leave and, indeed, there was re-argument before leave to appeal was granted, the Court’s Minute Book carrying a note that the majority of the Court was of the opinion that it had jurisdiction. What was put in issue in the Goodyear Tire case was an order of prohibition under the Combines Investigation Act following a conviction upon an indictment for an offence under the Act. The Court of Appeal of Ontario

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treated the appeal to it as a sentence appeal, under a relevant definition, and it is clear that the appeal to this Court was pursuant to s. 41 of the Supreme Court Act. In so far as Pigeon J. intimates in the Hill cases that this Court was giving leave in a sentence matter, I disagree with him. The real issue in this Court in the Goodyear Tire case was the constitutionality of a prohibitory order forbidding the repetition of the offence of which the corporation had been convicted. That was surely a question within the competence of this Court, and the granting of leave had nothing to do with the fact that the prohibitory order was characterized as a sentence for the purposes of an appeal to the Ontario Court of Appeal.

Paul v. The Queen, [1960] S.C.R. 452 was decided shortly after Goldhar and it affirmed the principle of Goldhar in relation to a summary conviction matter that cases which fell outside of s. 41(3) were not on that account brought within s. 41(1), any more than were cases of indictable offences which fell outside of what is now s. 618 of the Criminal Code. Paul v. The Queen was not an attempted sentence appeal in the same sense as Goldhar but was rather a case where the provincial Court of Appeal refused to hear an appeal in respect of a summary conviction or, alternatively, refused to hear an appeal from the dismissal of an appeal in the matter to a County Court Judge. As such, notwithstanding that it was a bare majority decision, it is squarely within this Court’s plurality decision in Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639 where this Court held that it had no jurisdiction to give leave to appeal from a decision of the Federal Court of Appeal from the latter’s refusal to grant leave to it where such leave was required to entitle that Court to deal with the case. Hence, the denial of leave in the Paul case does not, under our present view, depend on whether a matter of sentence is involved but would equally result where required leave to appeal on any matter is denied by an appellate

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Court and it is sought to bring the matter here.

The same ruling, denial of leave, that was made in Paul was made in R. v. J. Alepin Frères Ltêe, [1965] S.C.R. 359. This Court affirmed again in the proposition that matters not mentioned in s. 41(3) are not thereby brought within s. 41(1) and thus sentence appeals are excluded.

Before turning to the latest case on sentence appeals in this Court, Lees v. The Queen, [1979] 2 S.C.R. 749, a short summation is in order. The quantum or fitness of a sentence, as such, no other considerations being involved, does not engage the jurisdiction of this Court. This was re-affirmed in the Hill cases by Pigeon J. However, quantum or fitness is not involved where the Court is asked to consider the legality of a sentence, legality in the sense of the legal right to impose the particular sentence as contrasted with the imposition of a lawful sentence which is alleged to have been the result of errors of law in determining its fitness. So too, quantum is not involved where the constitutionality of a certain type of sentence is put in issue. Nor is it involved where the Court is asked, in the Hill cases, whether there is power in a provincial appellate court to increase a sentence upon a motion by the Crown made during a sentence appeal taken by the accused alone, there having been no cross-appeal by the Crown. In such cases, the question is one of judicial or legislative authority to act and not one whether, there being such authority, it was improperly exercised.

Another type of case which can properly rest on s. 41 of the Supreme Court Act is Smith v. The Queen, [1959] S.C.R. 638 where this Court granted leave to appeal from the dismissal of an application for certiorari to quash a finding of delinquency against a child under the Juvenile Delinquents Act. The appeal was allowed and it is

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clear that s. 41(1) was an appropriate base for hearing the appeal which concerned a substantive matter. Leave could have been refused as a matter of discretion but jurisdiction to grant it was beyond question.

Since s. 41(1) of the Supreme Court Act is couched in very broad terms and it is, in effect, left to this Court to determine the ambit of its provisions, why should this Court set its face against entertaining applications for leave to appeal from sentencing considerations? The ordinary expectation would be that provisions to that end, if thought desirable, would be found in the Criminal Code. They are not, and I think that Fauteux J. demonstrated sufficiently in Goldhar why it would be improper to escape the limitations of what is now s. 618 of the Criminal Code by resorting to s. 41(1). The question, in so far as it is one of policy, is answered by the fact that this Court is a statutory court, with a circumscribed jurisdiction in criminal matters, and s. 41(1) should not be opened to matters outside of the Criminal Code unless they relate to such things as constitutionality or judicial power or authority.

Lees v. The Queen appears to be out of step with the authorities that I have canvassed to this point. I was a member of the Court which delivered a unanimous judgment in that case. The opening line of the judgment assesses the appeal as one attacking the legality of a sentence but the narrative of the case shows that it was not legality as I explained above, but rather an attack on a lawful sentence allegedly imposed by the trial judge by erroneously taking into account evidence of a potential but untried charge of an offence other than the robbery to which the accused pleaded guilty. Although in the result the appeal was dismissed, jurisdiction was nonetheless taken and, wrongly so, in the light of the cases that I have examined in these reasons.

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I examined the material filed on the application for leave to appeal in the Lees case, an application upon which I sat along with Dickson and Estey JJ. Our jurisdiction to give leave, that is to entertain the proposed appeal, was not raised either in the application for leave or in the material or argument presented at the hearing of the appeal. I readily confess to a lapse in not raising the question from the Bench, either when leave was sought or when the appeal was heard. In my opinion, we were wrong to have accepted the case for hearing when we had no jurisdiction to do so.

The present case cannot, any more than the Lees case, be considered as one where the legality of a sentence is in issue. The trial judge, in imposing a term of imprisonment of four and one-half years, was within the sentence limits of the offence, and so was the Court of Appeal in reducing the sentence to two years. There is no question of legality here as there was in the Hill cases or of constitutionality as there was in the Goodyear Tire case. Rather, the question in the present case was whether the trial judge, in imposing sentence, must be governed by a standard of proof beyond a reasonable doubt on disputed facts and not merely by a standard of proof on a balance of probabilities. By thus judicializing the sentencing proceedings, do we bring a quantum case within the jurisdiction of this Court under s. 41(1) of the Supreme Court Act? If with respect to the standard of proof as here or with respect to the error alleged in the Lees case, why not with respect to other considerations which enter or may enter into the determination of a fit sentence? The possibilities are various, if not infinite, of charging the sentencing judge with errors as, for example, applying the wrong principles, failing to apply correct sentencing principles, taking irrelevant matters into consideration, failing to admit or exclude certain evidence offered at the sentencing hearing, and so on.

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All these matters are, of course, significant because they may affect the quantum of a sentence but they have no effect upon the trial judge’s power to act. If there is to be a circumscription or enlargement of the range or character of the considerations that he may weigh or the standards that he may apply, it falls to the provincial appellate court to give the necessary directions as part of the sentencing process.

There is a wide discretion in a trial judge on sentence, a discretion made evident in the latitude he is given where only a maximum sentence is fixed for an offence or where only a minimum is fixed or a minimum and a maximum. If he imposes a sentence within the prescribed limits, the statutory check upon him lies in the Court of Appeal, provided leave is given. How can this mean that the Supreme Court may still monitor the considerations that should enter into the fixing of a permissible sentence or set standards for the exercise of discretion by a sentencing judge? I do not seek to rely on it here but reference may appropriately be made to s. 44 of the Supreme Court Act which, to put it generally, excludes any right of appeal from a discretionary order.

It seems to me that once the lid is lifted for the proper standard of proof of disputed facts, it must equally be open for the assessment by this Court of other considerations that may enter into a sentence. To say that this Court still retains control through its power to refuse leave is to yield the principle. This is hardly the way to deal with initial jurisdiction if it does not clearly exist.

I do not doubt the importance of the issue raised by this case on its merits. But important issues of criminal law, substantive criminal law, abound without it being contended that this Court can entertain them, as, for example, where a conviction or an acquittal or a new trial is challenged because of an alleged error of mixed fact and law or an error of fact alone. Unless there is a question of law alone (or of jurisdiction) in the courts below, this Court has no jurisdiction to entertain such

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criminal appeals; they stop in the provincial appellate courts. For the reasons I have given, it cannot be said that what cannot be brought within s. 618 can be redressed by invoking s. 41(1).

I turn now to consider, for their analogical value, cases in this Court dealing with dangerous offenders (habitual criminals) and sentences of preventive detention, now referred to as sentences of detention for an indeterminate period. Criminal Code, ss. 687 to 695.1, as Part XXI, govern the present dangerous offender provisions which, as enacted by 1976-77 (Can.), c. 53, s. 14, came into force on October 16, 1977. Under s. 694 there is an appeal to the provincial Court of Appeal from a sentence of indeterminate detention on any ground of law or fact or mixed law and fact. The Attorney General is given a right of appeal to the Court of Appeal against the dismissal of an application for an order for a sentence of indeterminate detention but only on a question of law. There is no provision in Part XXI which confers any right of appeal to the Supreme Court. In my opinion, although this Court may be entitled to entertain an appeal from a finding that an offender is a dangerous offender where a question of law is raised, I do not think that there is any jurisdiction in this Court to review a sentence of indeterminate detention.

There have been no cases brought here under the present Part XXI, but there was a course of decision on predecessor provisions. Preventive detention for persons found to be habitual criminals was introduced into the Criminal Code by 1947 (Can.), c. 55, adding thereto ss. 575A to 575H. Under these provisions, an allegation that an accused was an habitual criminal was to be added to the indictment after the charge of the substantive offence. More important, under s. 575E it was provided that a person convicted and sentenced to preventive detention may appeal

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against his conviction and sentence, and “the provisions of this Act relating to an appeal from a conviction for an indictable offence shall be applicable thereto”. In thus combining the finding of habitual criminality and the sentence of preventive detention in a composite right of appeal to be treated as an appeal from a conviction of an indictable offence, the Criminal Code gave the Supreme Court power to entertain such an appeal where a question of law was involved: see R. v. Robinson, [1951] S.C.R. 522. However, in Brusch v. The Queen, [1953] 1 S.C.R. 373 it was held that the allegation of being an habitual criminal was not a charge of a criminal offence for the purpose of entitling the accused to elect as to his mode of trial but because the sentence of preventive detention attached to the finding that the accused was an habitual criminal, the case could come here by reason of a dissent on a question of law in the provincial Court of Appeal.

The 1947 preventive detention provisions were replaced by 1953-54 (Can.), c. 51 and recast as Part XXI of the Criminal Code. A new procedure was instituted under s. 660 to provide for an application for the imposition of a sentence of preventive detention, in addition to the sentence for the substantive offence, if the accused was found to be an habitual criminal and the Court was thereby of opinion that it was expedient for the protection of the public so to sentence him. Section 667 provided for an appeal to the Court of Appeal against a sentence of preventive detention and a right of appeal was given to the Attorney General against dismissal of an application. There was no longer any such provision as appeared in the former s. 575E.

Parkes v. The Queen, [1956] S.C.R. 134, came to this Court under the new procedure. It is a case that presents some difficulty because my former brother Pigeon in the Hill cases viewed it as asserting jurisdiction in this Court under s. 41(1) to entertain a conjoint appeal against a finding of habitual criminality and a consequent sentence of preventive detention, and as giving jurisdiction to

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quash the sentence of preventive detention alone. On the other hand, my brother Ritchie in Poole v. The Queen, [1968] S.C.R. 381 (true, in a dissenting judgment, speaking for himself and three other members of the Court) considered that the Parkes case did not support authority in this Court to entertain an appeal from the sentence of preventive detention in insolation from an appeal on the finding of the status of being an habitual criminal. Ritchie J. pointed out in Poole that there was a change made by 1960-61 (Can.), c. 43, s. 33(2) in Criminal Code, s. 660 as it stood when the Parkes case was decided. The change in the words of the amended provision was that the sentence of preventive detention could be in lieu of the sentence for the substantive offence or in addition thereto. Ritchie J. in Poole did not question this Court’s jurisdiction to invoke s. 41(1) in appeals from findings as to status and he added these words (at p. 404):

I have read the habitual criminal cases which have come to this Court since the Parkes case and it appears to me that until the case of The Queen v. MacDonald,…there was no case of an appeal against sentence when the question of the finding as to status was not in issue. In each case the appeal was treated as an appeal from the “habitual criminal” finding and was decided on that basis.

However, the majority view in the Poole case was that this Court did have jurisdiction under s. 41(1), particularly because the matter did not come within s. 41(3), to deal with the sentence of preventive detention alone. The majority in Poole did not discuss the Parkes case in detail, saying only in the words of Cartwright C.J.C. (speaking for himself and for Judson and Hall JJ.) that the jurisprudence of the Court on the question of its jurisdiction to give leave and to hear an appeal from a sentence of preventive detention was settled and applied consistently since the decisions in Brusch and Parkes.

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Parkes v. The Queen is reported on the merits in [1956] S.C.R. 768. None of the five judges of this Court who sat on the case made any mention of jurisdiction, that question having been dealt with on the application for leave, reported in [1956] S.C.R. 134. On the merits, the sentence of preventive detention was set aside by reason of a procedural error in violation of the statutory prescriptions governing the hearing of an application for such detention. Nor was there anything in the hearing on the merits to indicate that the Court was concerned conjointly with the finding that the accused was an habitual criminal and with the sentence of preventive detention. It was perhaps unnecessary to deal with that finding because it fell away once the sentence of preventive detention was set aside. Yet it is important to notice that leave to appeal in Parkes was given under s. 41(1) of the Supreme Court Act (in the words of this Court on the application for leave) “from the affirmation by the Court of Appeal of the decision of His Honour Judge Grosch that the applicant is an habitual criminal”. Yet, as I indicated, there is not a word on the hearing of the appeal about the finding of habitual criminality.

In assessing whether there was jurisdiction in Poole, consideration had, however, to be given to R. v. MacDonald, [1965] S.C.R. 831 in which the Court majority, including Cartwright J., as he then was, took an adverse view to jurisdiction.

In R. v. MacDonald, the Court was unanimous in the view that the Criminal Code did not support jurisdiction to entertain an appeal from a sentence of preventive detention. In that case there was a finding that the accused was an habitual criminal and a sentence of preventive detention was imposed upon him in lieu of a sentence for the substantive offence. Although leave to appeal this sentence was granted, the appeal was quashed, Taschereau C.J.C. and Martland J. dissenting. The majority of the Court noted that the finding as to status was not in issue but that it was the conviction of an indictable offence that gave rise to the sentence of preventive detention. Accordingly,

[Page 385]

the Goldhar case governed to preclude an appeal by the Crown from an order of the provincial Court of Appeal which had set aside the order of preventive detention. It would be, said the majority, incongruous if an appeal as to sentence were allowed under s. 41(1) of the Supreme Court Act. The two dissenting judges said that the Goldhar case was inapplicable because the punishment by way of a sentence of preventive detention was not imposed for an indictable offence, but because the accused had the status of an habitual criminal and it was expedient for the protection of the public to sentence him. The dissenting judges rejected the contention that because the Crown was limited to questions of law in appeals to a Court of Appeal, it could not invoke s. 41(1) here and seek leave thereunder, it being understood that it would be limited to questions of law. Moreover, it was their view that since the accused could appeal, there was no valid reason for precluding the Crown.

Cartwright J., as he then was, in an opinion concurring with the majority, distinguished an appeal by the accused from a sentence of preventive detention (which he said has been recognized by this Court, as in the Parkes case) and an appeal by the Crown from the dismissal of an application for such a sentence or the setting aside of such a sentence. In this, he relied on the majority opinion of Ritchie J. He also noted that the question of a right of appeal to this Court was not discussed in the Brusch case, and that although the Robinson case was correctly decided under the legislation then in force, the subsequent changes in wording made the Robinson case no longer applicable to support a Crown appeal.

The majority decision in the MacDonald case rests on the following observation of Ritchie J. (at p. 851 of [1965] S.C.R.):

As has been pointed out, the Criminal Code makes express provision under s. 667 for appealing to the court

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of appeal of a province from the disposition made by a trial judge of an application for preventive detention and by s. 667(2) the Attorney General is limited to “any ground of law” in appealing from the dismissal of such an application. If counsel for the appellant were right in his contention that an appeal can be had to this Court under s. 41(1), at the instance of the Crown, from an order of the court of appeal setting aside a sentence of preventive detention, it would mean that although the Crown is restricted to “any ground of law” when appealing to the Court of Appeal of a province against the dismissal of an application for preventive detention by a trial judge, it can obtain access to this Court on unrestricted grounds when appealing from a judgment of the Court of Appeal which has the same effect. I cannot think that Parliament intended such an anomaly to result from the provisions of s. 667(2) of the Criminal Code and s. 41(1) of the Supreme Court Act.

The limitation to “any ground of law” of the right of the Attorney General to appeal to the Court of Appeal was first enacted by Chapter 43 of the Statutes of Canada, 1960-61, and s. 667(2) in its present form has not been previously considered by this Court.

I do not find the cases in this Court on sentence of preventive detention and on sentence of indeterminate detention of any assistance in coming to a conclusion on the issue of jurisdiction under consideration. Those cases would appear to have an acceptable rationale where they invoke s. 41(1) in connection with a finding of habitual criminality and a consequent sentence of preventive or indeterminate detention. This follows from the consistent view of this Court that a finding that a person is an habitual criminal is a finding of a status and is not to be considered as a finding of guilt of an indictable offence. Certainly, if the consequent sentence flows from the finding of the status of being an habitual criminal and is dependent on that finding, the two matters can be considered as intertwined for the purposes of an appeal to this Court by leave under s. 41. This was the view of Spence J. and of Pigeon J. in their separate reasons in Poole. If they are to be considered separately, I question whether, at least under the present provisions governing imposition of sentences of indeterminate detention there can be any

[Page 387]

jurisdiction in this Court to entertain an appeal from the sentence alone.

However, as I have already said, the cases on habitual criminality and sentences of preventive or indeterminate detention do not assist on the question in issue here. They rather persuade me, by their special character, as having no relevance for jurisdiction in sentence proceedings following a conviction of an indictable offence or a summary conviction offence.

There is an understandable concern with variations in approach by provincial courts, both trial courts and appellate courts, if this Court should decline jurisdiction. There are, however, already well known variations in sentencing according to the offence and in relation to the same offence and in relation to the particular offender. There is a large subjective (it may be called discretionary) element in sentencing which may properly be influenced by regional or even local considerations. It is worth adding here that s. 614 of the Criminal Code, respecting the powers of the Court of Appeal on a sentence appeal, provides that the Court shall consider the fitness of the sentence appealed against and may, upon such evidence, if any, as it thinks fit to receive, vary the sentence or dismiss the appeal. If Parliament has thought fit to leave the quantum of a sentence to be finally determined at the Court of Appeal level, it should similarly be considered that this carries with it the final determination of the considerations which enter into the measure of a sentence.

This Court would enter into a trackless waste if it sought to separate quantum pure and simple from quantum according to a list of permissible and impermissible considerations that should govern quantum. Calling those considerations questions of law does not, in my opinion, take them outside of the sentencing process which results in a particular level of punishment.

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For the foregoing reasons, it is my view that this Court should not accept jurisdiction under s. 41(1) to deal with the question submitted here. I would, accordingly, quash the appeal.

The judgment of Martland, Ritchie, Dickson and Chouinard JJ. was delivered by

DICKSON J.—In the second edition of his text Principles of Sentencing (1979), Professor D.A. Thomas speaks of an “evolving body of principle designed to ensure that the version of the facts adopted for the purpose of sentence is supported by evidence and reached according to appropriate procedural standards” (at pp. 366-67). One of those evolving principles, lying at the heart of this appeal, concerns the standard of proof to be applied for establishing aggravating facts which, while not affecting guilt or innocence, do have a critical effect on the length of sentence.

Two issues are raised. The first preliminary question: does the Supreme Court of Canada have jurisdiction to entertain appeals arising out of sentencing proceedings for indictable offences? The second issue, only reached if the first question is answered affirmatively, is this: where, on a sentencing hearing following conviction, the Crown seeks to prove aggravating facts relating to the offence committed and those facts are controverted, is the burden on the Crown the traditional criminal onus of proof of beyond a reasonable doubt or the lesser onus of proof upon a balance of probabilities?

I

How the case arose

The respondent, Obed Ebenezer Gardiner, pleaded guilty on December 13, 1978 to assault causing bodily harm. The victim was his wife. At the sentencing hearing the victim testified on behalf of the Crown with respect to the details of the assault. According to her version of the attack,

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the respondent brutally beat and strangled her, tore off her clothes, threatened her with sexual mutilation and forced her to commit an act of incest with her paralyzed son who suffered from cerebral palsy. In her housecoat, nightgown and bare feet she had walked to a service station in the early morning hours where the police and an ambulance were called. She spent four days in hospital. In the attack she suffered injuries to her face, a hairline fracture of the skull and extensive bruising.

The respondent’s version of the attack was very different. His wife had been drinking heavily and had threatened to commit suicide. She had hit her head on the head board of the bed. The respondent admitted to having slapped his wife on the side of the face but claimed to have then blacked out until his arrest the next morning.

At trial Judge Graburn sentenced the respondent to four years and six months in penitentiary. The maximum penalty for assault causing bodily harm is five years imprisonment. In the judge’s opinion this was “one of the worst cases of assault causing bodily harm to come before this Court”. In assessing the conflicting testimony respecting the circumstances serving to aggravate the offence, the judge felt himself bound by the Ontario Court of Appeal decision in R. v. Cieslak (1977), 37 C.C.C. (2d) 7; the Crown need only prove such facts on a balance of probabilities following a guilty plea.

The judge preferred the evidence of the victim to that of the respondent. He went further to say that as the burden of proof was upon a balance of probabilities it was not necessary to call the victim’s son to testify in order to satisfy the onus resting on the Crown.

The respondent appealed. In a short unanimous judgment the Ontario Court of Appeal held that the obiter in R. v. Cieslak, supra, to the effect that the onus on the Crown was merely that of a preponderance of credible evidence, was in error:

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…in the case of sentencing where a Judge is faced with conflicting evidence going to the gravity of the offence the onus on the Crown is to prove the aggravating facts beyond a reasonable doubt [per Jessup J.A].

The Court remitted the matter to the trial judge to consider the evidence in the light of the proper onus and to report whether the aggravating factors referred to in the trial judge’s Reasons for Sentence in fact obtained. The trial judge reported. He said that it would be unfair to the Court of Appeal, to the accused and to the administration of justice for him to endeavour to apply to the evidence the criminal standard of proof when he had directed his mind solely to the civil burden of proof when sentencing ten months earlier.

The Court of Appeal allowed the appeal and reduced the sentence of imprisonment to two years.

II

The jurisdictional point

The Crown moved before this Court for leave to appeal the decision of the Ontario Court of Appeal, and leave to appeal was granted. When the matter came on for argument, however, the Court raised the question as to the jurisdiction of this Court to entertain an appeal relating to sentencing. Counsel for the Crown and counsel for the appellant were both of opinion that the Court did indeed have the necessary jurisdiction. Following argument as to jurisdiction and as to the merits the Court reserved decision on both points.

The task of determining the limits of the Court’s criminal appeals jurisdiction for indictable offences is arduous due in part to the difficulty in reconciling the statutory language of the Supreme Court Act, R.S.C. 1970, c. S-19, as amended and Part XVIII of the Criminal Code, R.S.C. 1970, c. C-34, as amended, and in part due to earlier decisions of this Court, which cannot be said to be in harmony. The importance of the jurisdictional issue need not be stressed, as it is obvious that it radiates far beyond the bounds of the present appeal.

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The Supreme Court of Canada was created by federal statute in 1875 pursuant to s. 101  of the Constitution Act, 1867,  30 & 31 Vict., c. 3  (U.K.). Section 101 reads:

101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.

The Supreme and Exchequer Court Act of 1875 (Can.), c. 11 “constituted, and established, a Court of Common Law and Equity, in and for the Dominion of Canada…called The Supreme Court of Canada’” (s. 1). This newly created court was given “appellate civil and criminal jurisdiction within and throughout the Dominion of Canada” (s. 15). The model chosen for the Supreme Court of Canada, among several possible options open to the legislators, was that of a “national appellate court, functioning like an English appellate court, or like the House of Lords, with a general jurisdiction (be it as of right or by leave) not limited to any class or classes of cases” (Laskin C.J., “The Role and Functions of Final Appellate Courts: The Supreme Court of Canada” (1975), 53 Can. Bar Rev. 469, at p. 471).

An important factor in the choice of this model for the Supreme Court of Canada “was and is the fact that many important branches of law, such as the criminal law, the law of negotiable instruments, the law of bankruptcy, the law of shipping, railway law, the law of patents and copyright have a national operation because they fall within exclusive federal competence; and even though they may interact in some respects with some aspects of the common law their interpretation and application must necessarily be uniform, and perhaps all the more so because of the interaction” (Laskin C.J., ibid., at p. 473).

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In addition to the general appellate jurisdiction conferred by s. 15 of the 1875 Act, s. 49 specifically limited criminal appeals:

49. Any person convicted of treason, felony or misdemeanor…before any other Superior Court of criminal jurisdiction, whose conviction has been affirmed by any Court of last resort…may appeal to the Supreme Court against the affirmation of such conviction… Provided that no such appeal shall be allowed where the Court affirming the conviction is unanimous...[Emphasis added]

The limitation on criminal appeals is indicative of the function envisaged by Parliament for the Supreme Court, that of the resolution of division of opinion as to questions of law, especially in criminal matters, and the positing of uniform rules applicable throughout Canada.

Nesbitt J. in Lake Erie and Detroit River Railway Co. v. Marsh (1904), 35 S.C.R. 197 espoused this view of the role of the Supreme Court (at p. 200):

We think it was the intention of the framers of the Act creating this court that a tribunal should be established to speak with authority for the Dominion as a whole and, as far as possible, to establish a uniform jurisprudence, especially within matters falling within section 91 of the B.N.A. Act, where the legislation is for the Dominion as a whole, or, as I have said, where purely provincial legislation may be of general interest throughout the Dominion. [Emphasis added]

Although a very broad jurisdiction was given by s. 15, and undoubtedly it was the intention of the framers of the Act that the Supreme Court speak with authority for the Dominion as a whole, several factors compounded the difficulties experienced by the Court in establishing its general and ultimate appellate jurisdiction.

The first difficulty was the fact that until the year 1933 in respect of criminal appeals and 1949 in respect of civil appeals, ultimate appellate jurisdiction lay with the Judicial Committee of the Privy Council and not with the Supreme Court of Canada. Not only was the Supreme Court of Canada an intermediate appellate Court and thus

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not the final arbiter in either civil or criminal matters, but in certain circumstances appeal could be had directly to the Judicial Committee of the Privy Council.

The second important factor in the development of the appellate jurisdiction of the Supreme Court was the transition from the predominance of appeal as of right to appeal by leave. It is difficult to overestimate the significance of this transition. Originally all appeals were by right in both civil and criminal matters; appeal by right was of course subject to the fulfilment of the various conditions attaching to the exercise of the right. This was perfectly consonant with an intermediate appellate function. The legislature had attempted to predetermine the appropriate cases for appeal; no room was made for judicial discretion in controlling the Court’s docket. “Thus, the most significant fact about the statutory basis of the Supreme Court of Canada’s jurisdiction is that throughout the Court’s history the appeal as of right has been the predominant mode of appeal” (Russell, “The Jurisdiction of the Supreme Court of Canada: Present Policies and a Programme for Reform” (1968), 6 Osgoode Hall L.J. 1, at p. 13). The possibility of appeal by special leave as an alternate means of access to the Court gradually made its appearance over a number of years in both civil and criminal matters but until the abolition of the de piano right to appeal in civil cases in 1975, the vast majority of appeals came by right.

Faced with a burgeoning caseload and inadequate discretionary means of controlling it, a tendency to read down the jurisdiction of the Court is discernible in the decisions.

In adjudicating claims to this [statutory right of appeal], the Supreme Court has found ample opportunity to introduce qualifications to the right which sometimes reflect the judges’ own view of the Court’s proper function. Even though all the statutory requirements for a de piano appeal may appear to have been met, nevertheless the Court has frequently quashed an appeal on the grounds, for instance, that the case turns on a

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question of provincial procedure [Russell, supra, at p. 12].

Two qualifying conditions attached to the appeal as of right in civil cases were that it be from a “final judgment…of the highest court of final resort in a province” (R.S.C. 1927, c. 35, s. 36, as amended by 1949 (Can.), 2nd Sess., c. 37, s. 2). Both these conditions were very narrowly construed (see United States of America v. Link and Green, [1955] S.C.R. 183; Ottawa Electric Co. v. Brennan (1901), 31 S.C.R. 311; Furlan v. City of Montreal, [1947] S.C.R. 216). A further rule of construction was applied in cases of appeal as of right: if the Court’s jurisdiction were doubtful it would not be assumed (Chagnon v. Normand (1889), 16 S.C.R. 661; Cully v. Ferdais (1900), 30 S.C.R. 330; McKenzie v. Hiscock, [1967] S.C.R. 781). As the appeal as of right predominated appeals to this Court these “rules” originated and were developed in the context of appeals as of right. They were measures which were probably justified as a means of controlling the Court’s docket and reflected the strict constructionist inclinations of members of the Bench. The applicability of rules with a built-in bias against jurisdiction to issues of discretionary leave to appeal, however, seems unfounded. The discretionary element provides the screening mechanism formerly supplied by a narrow interpretation of jurisdiction.

Nevertheless, with the rising importance of special leave to appeal, especially after the major revision of the Supreme Court Act in 1949 (1949 (Can.), 2nd Sess., c. 37), it was inevitable that this narrow interpretation of jurisdiction would spill over, unjustifiably in my view, into the area of discretionary leave.

The problem of construction was exacerbated by the complexity of the statutory provisions relating to appeals, especially criminal appeals. The amending process was both erratic and piece-meal. Between 1892 and 1906, for example, essentially similar provisions for criminal appeals existed in

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both The Supreme and Exchequer Courts Act, R.S.C. 1886, c. 135 and the new Criminal Code, 1892 (Can.), c. 29. In 1906 in the Revised Statutes the duplication was eliminated by s. 36 of the Supreme Court Act, R.S.C. 1906, c. 139 which provided that “there shall be no appeal in a criminal case except as provided in the Criminal Code”. At this time an appeal as of right was the only means of appealing a criminal matter.

An amendment to the Criminal Code in 1923 precipitated the troublesome case of Goldhamer v. The King, [1924] S.C.R. 290. The issue of the jurisdiction of the Supreme Court to entertain an appeal from sentence arose. The Court had difficulty reconciling the plain meaning of then s. 1024 which gave a right of appeal to “any person convicted of any indictable offence, whose conviction has been affirmed” with the newly amended s. 1013 which dealt with appeals to the Court of Appeal under a double rubric, appeals as to “conviction” and appeals as to “sentence”. Idington J. felt that it was “fairly arguable” that there was a right of appeal to the Supreme Court of Canada from sentence by one convicted under s. 1013. “I cannot therefore confidently assert and hold that there is no appeal possible under such circumstances” (at pp. 292-93). Duff J., in one short paragraph, read s. 1024 together with s. 1013 and concluded that there was “no right of appeal to the Supreme Court of Canada from the judgment given by a court of appeal on an appeal under subsection (2) of section 1013” (at p. 293). Mignault J. said essentially the same thing (at pp. 293-94):

As now amended, article 1013 gives a right of appeal against a conviction, and against a sentence pronounced by the trial court against a person convicted on indictment. Article 1024 was not amended by the 1923 statute and under it the right of appeal is restricted to an appeal against the affirmance of the conviction. Reading it with article 1013, as amended, the appeal from the sentence under paragraph 2 of article 1013 cannot be brought before this court.

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Thus the rule against sentence appeals in the Supreme Court of Canada was born. It would appear that the jurisdiction of this Court to hear appeals on sentence had formerly not been questioned. Counsel for the appellant in Goldhamer had been caught by surprise and no submissions were in fact made on the jurisdictional issue.

Upon said appeal coming on for hearing herein, some members of our court took the objection that we had no jurisdiction.

I suggested to counsel for appellant, who was thereby taken by surprise, that he better urge anything he had to say on the merits, and take a few days to submit a further factum, answering the point of want of jurisdiction.

A week has elapsed but nothing further submitted, possibly because I had submitted to him that I could see no merits in the appeal, including the objection upon which he chiefly relied, that the fine having been paid there could be no appeal to the Court of King’s Bench [at p. 291 per Idington J.].

The sections dealing with Supreme Court appeals had not been amended at the time of the 1923 amendment to the Court of Appeal provisions and it is unlikely that the legislators directed their minds to the possible effect their wording of s. 1013 would have on then s. 1024. But the rule against sentence appeals to the Supreme Court prevailed, despite a statutory basis which was, at the very least, arguable. This is easily explainable. The case afforded the opportunity to contain the rising tide of appeals as of right.

The rule, in one of its aspects, was a good one which became better as the role of the Supreme Court shifted from that of an intermediate appeal court to final arbiter in issues of national importance. “Fitness” or “quantum” of sentence is best left to the courts of appeal. The power of the Court of Appeal to “consider the fitness of the sentence appealed against” is now contained in s. 614(1) of the Criminal Code. I have no quarrel with this. The Supreme Court of Canada should not consider questions of the fitness of an individual’s sentence. That is not its role:

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Here, the fundamental factor to keep in mind is that most of the disputes which reach the Supreme Court have first been adjudicated by a trial court and a provincial appeal court. The litigant has had his “day in court.” It is not the function of the Supreme Court to give him yet another day. “Review by the Supreme Court”, to quote Chief Justice Hughes of the United States Supreme Court, “is thus in the interests of the law, its appropriate exposition and enforcement, not in the mere interest of the litigants.” The Canadian Supreme Court, too, should be designed and operated to serve not the private interests of dissatisfied litigants but the community’s interest in obtaining an authoritative settlement of questions of law of importance to the whole nation [Russell, supra, at pp. 28-29].

It is incorrect, however, in my opinion, to characterize our justifiable reluctance to consider questions of fitness of sentence as lack of jurisdiction. It is to compound the error to extend the argument of lack of jurisdiction to what are clearly important questions of law arising out of the sentencing process. The function of this Court is precisely that, to settle questions of law of national importance in the interests of promoting uniformity in the application of the law across the country, especially with respect to matters of federal competence. To decline jurisdiction is to renounce the paramount responsibility of an ultimate appellate court with national authority.

In Goldhar v. The Queen, [1960] S.C.R. 60, Cartwright J., in his dissenting judgment, sought a construction of the applicable statutory provisions which would give “effect to the apparent intention of Parliament that our jurisdiction in criminal matters should be strictly limited to points of law and yet wide enough to assure uniformity in the interpretation of the criminal law throughout Canada” (at p. 79). The “pure point of law” which the appellant sought to have decided in the Goldhar case, Cartwright remarked, fell “within the literal meaning” of the appeals by leave, s. 597(1)(b) of the revised Criminal Code, 1953-54 (Can.), c. 51. After distinguishing the Goldhamer decision he found that (at p. 77):

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In my opinion no sufficient reason has been advanced for interpreting s. 597 so as to refuse a jurisdiction which appears to me to be conferred upon the Court by the words of that section construed in their ordinary and literal meaning.

This interpretation, he felt, was buttressed by s. 41 of the Supreme Court Act which he found to be “in pari materia” with s. 597 of the Code.

It is important to remember that between Goldhamer and Goldhar significant revisions to the Supreme Court Act had intervened in 1949. The Supreme Court had replaced the Privy Council as the ultimate appeal court for Canada.

The powers of this Court in the exercise of its jurisdiction are no less in scope than those formerly exercised in relation to Canada by the Judicial Committee [Re The Farm Products Marketing Act, [1957] S.C.R. 198, at p. 212, per Rand J.].

A narrow interpretation of jurisdiction was not in keeping with the new function of the Court:

At the apex of the single Canadian System is the Supreme Court of Canada. Obviously its jurisdiction should be as comprehensive respecting federal and provincial laws as is that of the lower courts, subject to the screening of cases for their national importance as indicated [Lederman, “Thoughts on Reform of The Supreme Court of Canada” (1970), 8 Alta L.R. 1, at pp. 16-17].

In 1975 appeals as of right in civil matters were abolished and s. 41(1) governing appeals with leave assumed a major importance in the scheme of the Act. It was amended and enlarged in order to adapt it to the role which the Court had assumed and which Nesbitt J. had foreseen in 1904. Sections 41(1) and 41(3) of the Supreme Court Act now read:

41. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme

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Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from such judgment is accordingly granted by the Supreme Court.

…

(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.

In the decision, Hill v. The Queen, [1977] 1 S.C.R. 827 the repercussions of the s. 41 amendments made themselves felt. The case was heard by the full court and in my view goes a long way in sustaining the contentions of both counsel now before us that the Court has jurisdiction to hear and determine the present appeal. Hill had pleaded guilty to charges of rape and wounding. He was sentenced to twelve years and appealed against sentence. The Court of Appeal for Ontario increased the sentence to one of life imprisonment. The question of law presented to the Court was whether, on an appeal by an accused against sentence, where there is no cross-appeal by the Crown to have the sentence increased, the Court of Appeal has the power to increase the sentence imposed upon the accused. The judgment of Martland, Judson, Pigeon and de Grandpré JJ. was delivered by Pigeon J. who introduced his discussion with respect to jurisdiction with these words (at p. 843):

On the hearing of this appeal, counsel for the Crown objected to the jurisdiction of this Court relying on Goldhar v. The Queen, a decision rendered on an application for leave to appeal heard by a court of five judges in which it was held, Cartwright J. dissenting, “that this Court has no jurisdiction to entertain an appeal against a sentence imposed for the commission of an indictable offence”. In my view, that decision is not binding and should not be followed for the following reasons.

Mr. Justice Pigeon then observed that before the 1949 amendments, the Supreme Court Act did not confer jurisdiction on this Court in criminal cases

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due to the exclusionary clause in s. 36: “except in criminal cases and in proceedings for or upon a writ of habeas corpus, certiorari or prohibition arising out of a criminal charge”; therefore, any jurisdiction in criminal matters had to be found in the Criminal Code or other statute. Mr. Justice Pigeon discussed the line of cases in which the Court had uniformly adhered to a literal construction of s. 41 and granted leave to appeal in criminal matters for any judgments not excluded by subs. (3); Goodyear Tire and Rubber Co. of Canada Ltd. v. The Queen, reported on merits only at [1956] S.C.R. 303, Parkes v. The Queen [1956] S.C.R. 134, Smith v. The Queen [1959] S.C.R. 638. He reviewed the decisions in which a different view had been taken, namely, Goldhar v. The Queen [1960] S.C.R. 60, Paul v. The Queen [1960] S.C.R. 452, R. v. J. Alepin Frères Liée [1965] S.C.R. 359, R. v. MacDonald [1965] S.C.R. 831. The judgment continues (at p. 850):

There is a clear conflict between the four last mentioned cases and the other judgments adhering explicitly or implicitly to a different view of s. 41. This means that on any view of the rule of stare decisis the Court has to choose between the two conflicting views.

In my opinion, the literal construction is preferable not only because in the absence of ambiguity the literal meaning should always be adhered to despite any inconsistencies short of absurdity, but also because any assumption that Parliament did not intend to depart from the previous state of the law is unjustified. Section 41 was enacted substantially in its present form at the time when appeals to the Privy Council were being abolished and this court was being made truly supreme. The Privy Council had enjoyed unlimited jurisdiction by special leave and it is apparent that the new provision was intended to effect the change from a limited specific jurisdiction to a broad general jurisdiction. To hold that the inconsistencies resulting from this sweeping change indicate the intention of leaving some wide gaps open is, in my view, entirely unwarranted. On the contrary, the enactment of a provision that undoubtedly confers some jurisdiction in criminal matters beyond that existing under the Criminal Code, clearly indicates Parliament’s will to remedy the omission to extend the jurisdiction of this Court in criminal cases when the Privy Council’s jurisdiction in such cases was effectively abolished after

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the Statute of Westminster.

Mr. Justice Pigeon concludes on this point (at p. 851):

For those reasons, it does not appear to me that s. 41(3) should be construed otherwise that [sic] in accordance with the strict meaning of “convicting” and “conviction” as established by the Goldhamer decision. This means that, in my view, the objection to jurisdiction fails. However, I consider it appropriate to point out that such conclusion implies no departure from our rule of never entertaining an appeal concerning the fitness of a sentence.

The judgment of Laskin C.J. and Dickson J., dissenting as to the merits but in agreement with Pigeon J. on the jurisdictional point, was delivered by the Chief Justice. Two passages bear upon the jurisdictional issue in the present appeal. The first reads (at p. 830):

Like my brother Spence, I am in agreement with my brother Pigeon in his disposition of the question of jurisdiction, a disposition that affirms jurisdiction in this case and which consequently involves the overruling of the Goldhar case, and of other cases which adopted its approach to deny jurisdiction.

The disposition by Pigeon J. affirming this Court’s jurisdiction in Hill was perceived as overruling the Goldhar case and the other cases which adopted its approach to deny jurisdiction. Pigeon J. left no doubt as to his position. He stated that the Goldhar case was not binding and should not be followed. Hill adopted the general proposition, repudiated in Goldhar v. The Queen and Paul v. The Queen that matters 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. With respect, I cannot find in s. 41 of the Supreme Court Act or in the Criminal Code any wording which would accord this Court jurisdiction to hear sentencing matters where the issue was as to constitutionality or judicial power but not otherwise. I simply cannot find the basis for such a distinction in the wording.

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The second passage of Laskin C.J. reads (at pp. 831-32):

I take first the preliminary question of jurisdiction. It is to me unreal to think that literal construction determines the result when in order to arrive at it a detailed review of legislative history is required (and properly so) and the purpose of the measure under review is pursued through an examination of the changes made in the jurisdiction and role of this Court. Once it is admitted, as it must be here, that reasonable men can differ on the effect of language directed to a particular end which itself is in issue, we are in a situation where our conclusion will be influenced by our view of what this Court’s jurisdiction and role should be. Since I would not exclude cases from the leave jurisdiction of this Court unless it is quite plain that they have been excluded by statute, and since I do not regard the present appeal as plainly excluded I support the conclusion of my brother Pigeon on the question of jurisdiction.

It is not plain that a case such as that presently before us is excluded by statute. On the contrary it seems to be common ground that it falls within the literal, broad and embracing words of s. 41 of the Supreme Court Act. The present appeal is brought (i) from a “final judgment”; (ii) “of the highest court of final resort in a province…in which judgment can be had in the particular case”, i.e. from the Court of Appeal of Ontario; (iii) the “question involved” is “by reason of its public importance”…“one that ought to be decided by the Supreme Court”—the granting of leave to appeal testifies to this; (iv) the judgment sought to be appealed is not one falling within the exclusionary words of s. 41(3), for it is not one acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or of an offence other than an indictable offence. In Hill all nine judges joined in support of the view that s. 41 of the Supreme Court Act was intended to confer a broad general jurisdiction, beyond that existing under the Criminal Code. The Court rejected as “entirely unwarranted” the notion dominating the Goldhar line of cases that possible inconsistencies arising from a broad construction of s. 41 indicated Parliamentary intention to leave some wide gaps open.

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Three later cases should be mentioned. The Court in R. v. Zelensky, [1978] 2 S.C.R. 940 considered a provision for compensation under s. 653 of the Code which the Court found to be “tied expressly to the sentencing process” (at p. 948). The judge of first instance made a composite order at the time the respondent, Anne Zelensky, was sentenced to imprisonment and to a term of probation after pleading guilty to theft. The order was made in pursuance of an application for such relief by T. Eaton Company Limited, the victim of the theft. This Court held that s. 653 was valid as part of the sentencing process. The Court went on to provide some guidance to trial judges on the proper application of s. 653.

In R. v. Skolnick[1] the Court recently heard argument and reserved judgment on the question whether the mandatory minimum penalty prescribed by s. 236(1)(c) of the Criminal Code for a third offence applies to an accused who has been previously convicted and sentenced for two offences arising out of the same incident.

In the third case, Lees v. The Queen, [1979] 2 S.C.R. 749 the issue was as to the legality of a sentence of eight years’ imprisonment imposed upon the appellant, it being admitted that the sentencing judge had acted upon evidence of a potential but untried charge not connected with the offence to which the plea of guilty had been entered. The judgment of the Court was delivered by my brother McIntyre and concurred in by the six other members of the Court.

The lack of jurisdictional challenge in Zelensky, in Skolnick, in Lees and by the leave granting panel in Gardiner suggests, to me at least, an acceptance of the view that Hill gave the quietus to Goldhar and to the abnegation which under-

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pinned that decision and those which followed in its wake. Hill mandated an expansive reading of s. 41(1), the better to enable this Court to discharge its role at the apex of the Canadian judicial system, as the court of last resort for all Canadians.

If policy considerations are to enter the picture, as they often do, there would appear to me to be every reason why this Court should remain available to adjudicate upon difficult and important questions of law in the sentencing process, in particular where there are, as here, conflicting opinions expressed in the provinces. Indeed we are asked, in effect, in this appeal to decide between two opinions of the Ontario Court of Appeal which are in direct conflict. I can see no advantage to litigants or to the orderly administration of justice in closing doors which do not have to be closed.

The size of the Court’s docket should not determine jurisdiction. The leave granting process is available to screen out those cases which do not give rise to legal issues of high importance in the sentencing process. It was argued at the time of Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138 and Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265 that a flood of litigation would follow any relaxation of the rules governing standing in constitutional challenges. Experience has shown those fears to be groundless. As Cartwright J. observed in passing in Goldhar, at p. 79, the “cases in which a sentence can be questioned on a pure point of law are likely to be few and far between”.

Although I am of the view that the Court has jurisdiction to assess the fitness, i.e. the quantum of a sentence, I am equally of the view that as a matter of policy we should not do so. It is a rule of our own making and a good rule. But it does not go to limit the general appellate jurisdiction of this Court to determine questions of criminal law of national importance. The sentence here is ques-

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tioned on a point of law. The appeal is against the principle, not the fitness, of a sentence. The legality of the sentence is at issue.

Questions of burden of proof have traditionally been of concern to the judiciary and left to the judiciary and not Parliament to resolve. We are dealing here with a procedure which has evolved at common law and not by statute. It is not an issue which should take the time of Parliament.

It seems to me that there is a positive collective interest in having federal law, in particular the criminal law, one and the same for all Canadians and in knowing that the country’s highest Court is in the background, in case of need, to illuminate difficult points of law arising in the sentencing process. Cases calling for the articulation of governing and intelligible principles bearing upon deprivation of personal liberty would seem rationally to be the paradigm of the type of case which should find its way to this Court.

I would hold that the Court has jurisdiction to entertain this appeal. The statutory language, the historical development of the Court’s jurisdiction and the role of the Court as ultimate appellate tribunal all lead to that conclusion.

III

The Burden of Proof

A

Introduction

The question now to be addressed is this: what burden of proof must the Crown sustain in advancing contested aggravating facts in a sentencing proceeding, for the purpose of supporting a lengthier sentence; is the standard that of the criminal law, proof beyond a reasonable doubt, or that of the civil law, proof on a balance of probabilities.

The Crown argues for the acceptance of a lesser onus of proof at sentencing than the traditional

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criminal onus of beyond a reasonable doubt which applies at trial to the determination of guilt.

Relying heavily on American authorities the Crown suggests that there is a sharp demarcation between the trial process and the sentencing process. Once a plea or finding of guilty is entered the presumption of innocence no longer operates and the necessity of the full panoply of procedural protection for the accused ceases. Sentencing is a discretionary and highly subjective exercise on the part of the trial judge. The primary concern at a sentencing hearing is the availability of accurate information upon which the trial judge can rely in determining an appropriate sentence in the particular circumstances of the offender. For this reason the strict rules on the admissibility of evidence are relaxed. The trial judge is no longer confined to the narrow issue of guilt but is engaged in the difficult task of fitting the punishment to the person convicted. To require that the Crown prove contested issues beyond a reasonable doubt would be to complicate and extend sentencing hearings and convert the sentencing process into a second trial with a resultant loss of economy.

In the event that the essentially civil onus of preponderance of evidence is rejected, the Crown proposes, in the alternative, an “intermediate” standard of “clear and convincing” evidence to apply to sentencing hearings.

The respondent, on the other hand, argues for the application of the reasonable doubt standard to sentencing hearings. The “bifurcation” between trial and sentencing proposed by the Crown the respondent finds artificial and against the authorities. From the offender’s point of view, sentencing is the most critical part of the whole trial process, it is the “gist of the proceeding” and the standard of proof required with respect to controverted facts should not be relaxed at this point. To do so is prejudicial to the accused. Administrative efficiency is insufficient justification for so radical a

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departure from the traditional criminal onus of beyond a reasonable doubt.

B

The Authorities relied upon in Cieslak and in Gardiner

As I have indicated, the Ontario Court of Appeal in R. v. Cieslak, supra, said that it was “up to the Crown to prove the material facts, on a balance of probabilities” (at p. 9). The question of burden of proof was not directly in issue in Cieslak. Arnup J.A. recited the facts and then said:

In our view, the established practice in Ontario following a guilty plea is that which is also followed in the criminal Courts in England as expressed in R. v. Campbell (1911), 6 Cr. App. R. 131, adopted by this Court in R. v. Carey (1951), 102 C.C.C. 25, [1952] O.R. 1, 13 C.R. 333; R. v. Van Pelz (1942), 29 Cr. App. R. 10; R. v. Benson and Stevenson (1951), 100 C.C.C. 247, 13 C.R. 1, 3 W.W.R. (N.S.) 29. In essence that practice is that it is proper for the facts to be stated by the investigating officer, or by Crown counsel on information received from the investigating officer, even though such information may be largely hearsay, but if the facts as given are challenged by the defence, it is then up to the Crown to prove the material facts, on a balance of probabilities, for the purpose of assisting the trial Judge in deciding what is the appropriate sentence.

The Court held that the established practice had not been followed. The appeal was allowed and sentence reduced. The four cases upon which the Court relied dealt with the general practice followed at the time of sentencing rather than with the burden of proof.

In concluding, in the present appeal, that the obiter in Cieslak as to the onus was in error, the Court, speaking through Jessup J.A. relied on nine cases to which brief reference must be made.

(a) The first is an unreported decision of the Ontario Court of Appeal, R. v. Sayer, an appeal heard February 19, 1976. Martin J.A., speaking for the court, said:

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Dealing with the appeal against sentence. The evidence is that following the assault, the complainant had an operation to correct a degenerative disc problem of long standing. It is far from established with that degree of certainty required in a criminal prosecution, that there was a causal connection between the assault and the condition which required the operation, nor can we be sure that the jury found such a causal connection.

(b) R. v. Gortat and Pirog, [1973] Crim. L.R. 648. The trial judge accepted pleas of guilty to a charge of conspiracy to rob and, dispensing with a jury, heard evidence from both the prosecution and defence solely on matters pertinent to the issue of whether the enterprise had been abandoned at some time prior to arrest. The report notes that the trial judge had directed himself as he would a jury on matters of burden of proof.

(c) Alberton Fisheries Ltd. v. The King (1944), 17 M.P.R. 457 (P.E.I.S.C.). Campbell C.J. said: “…on the question of the gravity of the offence, as well as on the question of guilt or innocence, the accused is entitled to the benefit of any reasonable doubt” (at p. 460).

(d) R. v. Maitland, a decision of the Supreme Court of South Australia in banco, reported at [1963] S.A.S.R. 332. The court expressed the view that “…the accused is entitled to have the benefit of any doubt that there may be” (at p. 335).

(e) Law v. Deed, [1970] S.A.S.R. 374, another decision of the South Australian courts, judgment being delivered by Bray C.J. The following passage appears at p. 378 of the report:

I think, as I said in Samuels v. Festa, [1968] S.A.S.R. 118, that the principle by which the defendant has the benefit of any reasonable doubt applies all through the criminal law and to matters of penalty as well as to matters of guilt or innocence except in the case of the defence of insanity or in the case of any special statutory provision to the contrary.

(f) O’Malley v. French (1971), 2 S.A.S.R. 110 following R. v. Maitland and Law v. Deed. Walters J. said (at p. 112): “In the absence of evidence

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negating the matters of mitigation put forward by him, the appellant was entitled to the benefit of any reasonable doubt upon the issue”.

(g) Weaver v. Samuels, [1971] S.A.S.R. 116. This is another decision of Bray C.J. and the following appears at pp. 119 and 120 of the report: “The defendant must be given the benefit of any reasonable doubt on matters of penalty, as well as on matters of guilt or innocence, in the absence of any statutory provision to the contrary. The plea of guilty admits no more than the bare legal ingredients of the crime. Any dispute as to anything beyond this must be resolved on ordinary legal principles, including the presumption of innocence”. Two other cases from South Australia, cases in which the test of beyond reasonable doubt was applied are R. v. Thompson (1975), 11 S.A.S.R. 217 and R. v. Stehbens (1976), 14 S.A.S.R. 240. See commentary on this latter case in (1977), 1 Crim. L.J. 217. The position would appear to be the same in New South Wales, R. v. O’Neill, [1979] 2 N.S.W. L.R. 582 and in the Australian Capital Territory, Bierkowski v. Pearson (1971), 18 F.L.R. 110.

(h) Browne v. Smith (1974), 4 A.L.R. 114, a decision of the Supreme Court of the Northern Territory adopting the principles enunciated in Law v. Deed and R. v. Maitland.

(i) R. v. Browne, [1950] N.I. L.R. 20, a decision of the Court of Criminal Appeal of Northern Ireland. In passing sentence in a manslaughter case the trial judge had said that it might well be that the prisoner had attempted to gas his wife before killing her and he referred to “a certain element of deliberation” on the part of the prisoner. On the appeal, Andrews L.C.J. said at p. 28):

While the inference drawn by the learned judge is certainly a possibility, we do not think that it can be drawn with such a degree of certainty as to justify it in being taken into account against the accused man in assessing sentence.

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Another case from Northern Ireland which might have been mentioned is R. v. McKee, [1947] N.I. L.R. 27 in which the Court of Criminal Appeal held that if the accused disputes aggravating facts the Court should either leave the disputed matter out of account or else receive evidence upon it and reach a finding, the prisoner being given the benefit of any reasonable doubt. The Court added that the practice in England would appear to be similar.

C

Other Canadian Cases

To complete the review of the cases, it may be noted that the Alberta Supreme Court, Appellate Division, in R. v. Pinder (1923), 40 C.C.C. 272 considered that no exception could be taken to giving the benefit of the doubt to the accused. Some sixty years’ later in R. v. Christopher (unreported), the same Court applied Cieslak and the balance of probabilities.

In R. v. Knight (1975), 27 C.C.C. (2d) 343 Morden J. applied the “moral certainty”, i.e. beyond reasonable doubt, test. In a recent unreported case of R. v. Wettlaufer[2], Judge Salhany held that before a judge should sentence an accused on the basis of the more culpable or aggravating theory advanced by the Crown, he should be satisfied beyond a reasonable doubt that the evidence supports that theory. This was consistent with the decision of the Manitoba Court of Appeal in R. v. Parenteau (1980), 52 C.C.C. (2d) 188 in which Matas J.A. speaking for the Court said at p. 190):

In our view, where the facts before the Court are presented by way of representations of counsel, and the accused denies important facts which go to the gravity of the offence, it is incumbent on the Crown to prove those facts beyond a reasonable doubt. There is no onus on the accused to call evidence to refute the statements made by Crown counsel. This is consistent with the general principle applicable in criminal prosecutions requiring the Crown to prove its case beyond a reasonable doubt.

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In Quebec, Barrette-Joncas J. in obiter in R. v. Dimora (1978), 45 C.C.C. (2d) 96 followed Cieslak. In R. v. Boileau; R. v. Lepine (1979), 50 C.C.C. (2d) 189 Hugessen J. applied the standard of proof of beyond reasonable doubt.

In the only other Canadian case to which I would refer R. v. Davis and Fancie (1976), 15 N.S.R. (2d) 461 the Appeal Division of the Nova Scotia Supreme Court said, at p. 463 of the report: “Giving the respondents the benefit of all doubt, the fact remains that…”

D

English and Other Cases

Two unreported cases to which we have been referred suggest that the test of beyond reasonable doubt has been applied in England. In R. v. Sadler (decided November 22, 1973) Lord Justice Scar-man said:

This Court takes the view that in those circumstances the benefit of the doubt must be given to the Appellant. Clearly he must be punished. But, equally clearly, his punishment must take into account the benefit of the doubt which this Court believes should in these circumstances be accorded to him.

In R. v. Miller, Vella and Walker (decided December 2, 1974) Lord Justice Lawton said:

We do not agree that the learned Judge was bound to approach the matter on the basis of what was put before him in mitigation. He was entitled to assess the probabilities on such information as he had. He had to bear in mind, of course, that if there was any doubt that doubt had to be resolved in favour of the accused.

In the later case of R. v. Taggart (1979), 1 Cr. App. R. (S.) 144, Mr. Justice Gibson, speaking for the Court of Criminal Appeal, referred to the guilty plea and the sharp difference between the facts of the wounding as the prosecution put them forward and the basis of the plea as stated by Taggart. The judge said (at p. 149):

As is well known, there are various methods of dealing with this difficulty when it arises. The judge is not bound to approach the matter on the basis of what is put forward before him in mitigation. He is entitled to

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determine the matter on the information before him but he will resolve any doubt in favour of the accused.

The author of a commentary upon Taggart and Miller in (1980) Crim. L. Rev. 248, concluded with these words (at p. 249):

Apart from these decisions, it seems to follow from general principle that an offender should not be held accountable for facts unless they have been established against him to the same standard of evidence, irrespective of whether those facts are technically elements of the offence with which he is charged. A finding of fact which goes only to sentence can have consequences for the offender as grave as one which goes to guilt, and the same standard should apply in both cases.

Counsel for the respondent furnished the Court with judgments to which I need not refer in detail, from the Federal Supreme Court of Nyasaland (presently Malawi), the Courts of Appeal of East Africa, Hong Kong and New Guinea, all to the same effect. The standard to be applied is the criminal standard, beyond a reasonable doubt.

E

American Authorities

The appellant calls in aid an uneven line of American jurisprudence, which in my view is neither applicable in the Canadian context nor in this case. The decision most frequently quoted is Williams v. New York, 337 U.S. 241, 93 L ed 1337 (1949) which dealt with the admissibility of hearsay evidence at a sentencing hearing.

Several comments must be made with respect to this decision. First, the case and those following it, turned on the applicability of the due process clause of the American Constitution to sentencing hearings. As counsel for the respondent submits almost all American judicial pronouncements with respect to the burden of proof on sentencing are grounded in considerations of American constitutional protections, particularly those afforded by the “due process” clause. Due process bears a very different meaning in Canada than that which has been accorded the phrase in the United States, and

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consequently American jurisprudence with respect to the proper quantum of proof on sentencing is an inappropriate model for Canadian emulation, Curr v. The Queen, [1972] S.C.R. 889. The controversy surrounding the applicability of the due process clause to sentencing hearings has served to accentuate, in the United States, the division in the trial process before and after conviction. In Canada, there is no such controversy. Rights equivalent to those provided under the due process clause in the United States are here guaranteed at sentencing by statute. In addition, the Williams decision has been severely questioned in the United States and there are signs that the due process clause is finding some applicability in the sentencing process (see United States v. Fatico, 458 F. Supp. 388 (1978); Gardner v. Florida, 430 U.S. 349, 51 L Ed 2d 393 (1977); Gregg v. Georgia, 428 U.S. 153, 49 L Ed 2d 859 (1976); “Procedural Due Process at Judicial Sentencing for Felony” (1968), 81 Harv. L. Rev. 821).

Secondly, the Williams decision dealt with the admissibility of hearsay evidence at sentencing. Arguments militating for a relaxation at a sentencing hearing of the rules dealing with the admissibility of evidence at trial do not necessarily support a reduction of the criminal standard of proof from beyond a reasonable doubt to a preponderance of credible evidence.

F

The Principles

Sentencing is part of a fact finding, decision-making process of the criminal law. Sir James Fitzjames Stephen, writing in 1863 said that “the sentence is the gist of the proceeding. It is to the trial what the bullet is to the powder” (quoted in Olah, “Sentencing: The Last Frontier of the Criminal Law” (1980), 16 C.R. (3d) 97, at p. 98). The statement is equally true today.

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One of the hardest tasks confronting a trial judge is sentencing. The stakes are high for society and for the individual. Sentencing is the critical stage of the criminal justice system, and it is manifest that the judge should not be denied an opportunity to obtain relevant information by the imposition of all the restrictive evidential rules common to a trial. Yet the obtaining and weighing of such evidence should be fair. A substantial liberty interest of the offender is involved and the information obtained should be accurate and reliable.

It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime.

It is well to recall in any discussion of sentencing procedures that the vast majority of offenders plead guilty. Canadian figures are not readily available but American statistics suggest that about 85 percent of the criminal defendants plead guilty or nolo contendere. The sentencing judge therefore must get his facts after plea. Sentencing is, in respect of most offenders, the only significant decision the criminal justice system is called upon to make.

It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure

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can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender.

To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked. “It would appear well established that the sentencing process is merely a phase of the trial process” (Olah, supra, at p. 107). Upon conviction the accused is not abruptly deprived of all procedural rights existing at trial: he has a right to counsel, a right to call evidence and cross-examine prosecution witnesses, a right to give evidence himself and to address the court.

In S. v. Manchester City Recorder, [1969] 3 All E.R. 1230 the suggestion was made that a court might be functus officio in the use of its powers to convict or acquit, as distinct from its powers to sentence. Lord Reid found this proposition to be both novel and erroneous, adding at p. 1233:

In my judgment magistrates have only one officium—to carry the case before them to a conclusion. There is no reason to divide up their functions and hold that at some stage in the proceedings one officium comes to an end and another begins.

In my view, both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence are factors militating in favour of the retention of the criminal standard of proof beyond a reasonable doubt at sentencing.

[B]ecause the sentencing process poses the ultimate jeopardy to an individual enmeshed in the criminal process, it is just and reasonable that he be granted the protection of the reasonable doubt rule at this vital juncture of the process [Olah, supra, at p. 121].

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The rationale of the argument of the Crown for the acceptance of a lesser standard of proof is administrative efficiency. In my view, however, the administrative efficiency argument is not sufficient to overcome such a basic tenet suffusing our entire criminal justice system as the standard of proof beyond a reasonable doubt. I am by no means convinced that if the standard of proof were lowered, conservation of judicial resources would be enhanced. In the event of a serious dispute as to facts, it would be in the interests of the accused to plead not guilty in order to benefit at trial from the higher standard of reasonable doubt. This would not only be destructive of judicial economy but at the same time prejudicial to whatever mitigating effect might have come from a guilty plea, as evidence of remorse. There would seem in principle no good reason why the sentencing judge in deciding disputed facts should not observe the same evidentiary standards as we demand of juries. In R. v. Proudlock, [1979] 1 S.C.R. 525 Pigeon J., dealing with an issue involving conviction, observed (at p. 550):

In my view, there are in our criminal law only three standards of evidence:

1. Proof beyond a reasonable doubt which is the standard to be met by the Crown against the accused;

2. Proof on a preponderance of the evidence or a balance of probabilities which is the burden of proof on the accused when he has to meet a presumption requiring him to establish or to prove a fact or an excuse;

3. Evidence raising a reasonable doubt which is what is required to overcome any other presumption of fact or of law.

The civil test only comes into play when the accused has to meet a presumption and it operates in favour of the accused.

I can see no good purpose served by the alternate Crown submission, namely, the adoption of a third standard of proof, “clear and convincing” evidence, in Canadian law. I agree with the remarks of Lord Tucker in Dingwall v. J. Wharton (Shipping), Ltd., [1961] 2 Lloyd’s Rep. 213 at p. 216:

…I am quite unable to accede to the proposition that there is some intermediate onus between that which is

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required in criminal cases and the balance of probability which is sufficient in timeous civil actions.

In conclusion, I see no justification for the introduction of the complexity and confusion which would inevitably follow upon the acceptance of standards of proof varying from trial to sentence.

I would dismiss the appeal.

Appeal dismissed, LASKIN C.J. and ESTEY and MCINTYRE JJ. dissenting on the question of jurisdiction.

Solicitor for the appellant: The Attorney General for Ontario, Toronto.

Solicitors for the respondent: Ruby & Edwardh, Toronto.