Present: Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for quebec
Constitutional law ‑‑ Charter of Rights ‑‑ Double jeopardy ‑‑ Dismissal of complaint for illegal practice of medicine ‑‑ Appeal by way of trial de novo from acquittal ‑‑ Whether appeal by way of trial de novo mentioned in ss. 75 and 78 of Summary Convictions Act infringes s. 11(h) of Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement saved by s. 1 of Charter ‑‑ Meaning of phrase "finally acquitted".
Constitutional law ‑‑ Charter of Rights ‑‑ Scope ‑‑ Double jeopardy ‑‑ Appeal by way of trial de novo from acquittal ‑‑ Appeal dismissed before Canadian Charter of Rights and Freedoms came into effect ‑‑ Charter in effect at time plea of autrefois acquit raised ‑‑ Whether accused can claim protection of s. 11(h) of Charter .
Constitutional law ‑‑ Charter of Rights ‑‑ Scope ‑‑ Exception by express provision ‑‑ Expiry of five‑year period after exception clause came into effect ‑‑ Exception clause not applicable ‑‑ Canadian Charter of Rights and Freedoms, s. 33 ‑‑ Summary Convictions Act, R.S.Q., c. P‑15, s. 132.
Appeal ‑‑ Appeal by way of trial de novo ‑‑ Whether appeal by way of trial de novo inconsistent with s. 11(h) of Canadian Charter of Rights and Freedoms ‑‑ Summary Convictions Act, R.S.Q., c. P‑15, ss. 75, 78.
The Court of Sessions of the Peace dismissed a complaint of unlawfully practising medicine filed against appellant by respondent. In March 1981, respondent appealed from this acquittal to the Superior Court pursuant to s. 75 of the Summary Convictions Act, which confers a right of appeal by trial de novo. Appellant filed a motion to dismiss, alleging that s. 75 does not authorize the prosecutor to appeal from an acquittal. The Court dismissed this motion and the Court of Appeal denied leave to appeal this interlocutory judgment. When the hearing resumed before a new judge in February 1983, appellant filed a new motion to dismiss based on the same grounds. The Court dismissed the motion, but also accidentally dismissed respondent's appeal without proceeding to hear the case. In May 1985, the Court of Appeal allowed respondent's appeal and referred the matter back to the Superior Court for a trial de novo to be held. In this Court, appellant argued for the first time that ss. 75 and 78 of the Act were inconsistent with s. 11( h ) of the Canadian Charter of Rights and Freedoms . The Charter was adopted on April 17, 1982, after the first hearing of the trial de novo, and until April 17, 1987, s. 132 of the Summary Convictions Act removed this Act from the scope of ss. 2 and 7 to 15 of the Charter . The issue in this appeal is thus (1) whether s. 75 of the Act allows the prosecutor to appeal by way of trial de novo from the acquittal of an accused; (2) whether the appeal by trial de novo, provided for in ss. 75 and 78 of the Act, contravenes the rights guaranteed by s. 11( h ) of the Charter , which provides that "Any person charged with an offence has the right...if finally acquitted of the offence, not to be tried for it again . . . ."; and (3) whether s. 132 of the Act is inconsistent with s. 33 of the Charter .
Held: The appeal should be allowed.
Section 75 of the Summary Convictions Act confers on the prosecutor a right to appeal from an acquittal by way of trial de novo. This section applies only to this type of appeal and not to appeals by stated case.
Section 75 of the Act is in part inconsistent with s. 11( h ) of the Charter . The appeal by trial de novo mentioned in ss. 75 and 78 of the Summary Convictions Act is not a true appeal but a new trial disguised as an appeal. The appeal is automatic and the prosecutor does not have to allege errors committed by the justice. The trial de novo can raise questions of law as well as questions of fact. At the hearing, the parties can also present their evidence over again and even add to it in the event of any deficiency. There can thus be a second trial even if the trial judgment was rendered in accordance with all the rules of law. This is precisely the type of abuse that s. 11(h) seeks to prevent. This paragraph guarantees the accused the right to plead autrefois acquit if the prosecution attempts to have him tried again for an offence of which he has been acquitted. Section 75 of the Act bars an accused from raising this argument by authorizing the prosecution to repeat the trial as part of the appeal proceedings. Section 75 is therefore inconsistent with the rights secured by s. 11( h ) of the Charter to the extent that it allows a prosecutor or complainant to appeal by way of trial de novo from the acquittal of an accused. An accused who is acquitted by a judgment which contains no error is "finally acquitted" within the meaning of s. 11(h). However, the accused retains the right to appeal his conviction by trial de novo, presenting his evidence over again in the Superior Court. Section 78 is thus valid in its entirety, as it goes without saying that if an accused has the right to present evidence, the prosecutor may also use this right in an appeal brought by the accused.
It is for the party arguing for the validity of a rule of law under s. 1 to establish that it is a reasonable limit which can be demonstrably justified in a free and democratic society. As such evidence was not presented, s. 75 of the Act is found to be of no force or effect under s. 52 of the Constitution Act, 1982 , as regards a right of appeal by the prosecutor or complainant.
Since April 17, 1982 all accused persons have acquired a right not to be tried again for an offence of which they have been finally acquitted. The protection conferred by this right is related not to the time the offence was committed or the acquittal entered, but to the time at which an attempt is made to re‑try the accused. In the case at bar, even though the Charter was not in effect at the time the proceedings began, it applies at the time this Court has to decide whether it should order the holding of a trial which will be an infringement of appellant's rights. It is apparent that such an order cannot be made.
Under section 33(3) of the Charter , s. 132 of the Summary Convictions Act, designed to remove this Act from the scope of ss. 2 and 7 to 15 of the Charter , ceased to have effect on April 17, 1987, five years after it came into effect. In light of the foregoing observations on the time at which the right conferred by s. 11( h ) of the Charter applies, therefore, it is not necessary to rule on the validity of the exception clause, since it is no longer in effect at the present time.
Cases Cited
Distinguished: R. v. Jordan (1971), 1 C.C.C. (2d) 385; R. v. McCaugherty, [1971] 2 W.W.R. 579; not followed: Dupont c. Rheault, [1987] R.J.Q. 1121; referred to: R. v. Wigglesworth, [1987] 2 S.C.R. 541; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Act to amend the Charter of human rights and freedoms, S.Q. 1982, c. 61, s. 34.
Canadian Charter of Rights and Freedoms , ss. 1 , 2 , 7 to 15 , 33 .
Charter of human rights and freedoms, R.S.Q. 1977, c. C‑12, ss. 1, 23 [am. 1982, c. 17, s. 42], 33, 37.1 [ad. 1982, c. 61, s. 14].
Constitution Act, 1982 , s. 52 .
Medical Act, S.Q. 1973, c. 46 [now R.S.Q. 1977, c. M‑9].
Summary Convictions Act, R.S.Q. 1977, c. P‑15, ss. 75, 78, 90, 132 [ad. 1982, c. 21, s. 1].
APPEAL from a judgment of the Court of Appeal for Quebec*1, allowing respondent's appeal from a judgment of the Superior Court*2, which dismissed an appeal by way of trial de novo against appellant's acquittal on a complaint filed by respondent for illegally practising medicine. Appeal allowed.
1 Que. C.A., No. 200‑10‑000034‑830, May 7, 1985.
2 sup. Ct. Montmagny, No. 300‑36‑000008‑80, March 23, 1983.
Guy Bertrand and Isabelle Hudon, for the appellant.
Pierre Laurin and Pierre Lachance, for the respondent.
Paul Monty and Lyne Morais, for the intervener the Attorney General of Quebec.
André Bluteau and René Leblanc, for the Attorney General of Canada.
English version of the judgment of the Court delivered by
1. Lamer J.‑‑This appeal turns primarily on the question of whether an appeal by trial de novo, provided for in s. 75 of the Summary Convictions Act, R.S.Q., c. P‑15, which authorizes the parties to adduce their evidence over again, and even correct deficiencies therein, contravenes the rights guaranteed by the Canadian Charter of Rights and Freedoms (hereinafter the Canadian Char ter).
Facts and Judgments
2. On February 14, 1980, respondent filed against appellant a complaint containing four counts of unlawfully practising medicine contrary to the Medical Act, S.Q. 1973, c. 46. This complaint was dismissed by the Court of Sessions of the Peace on November 3, 1980, for lack of evidence identifying the accused.
3. Respondent appealed from this acquittal to the Superior Court pursuant to s. 75 of the Summary Convictions Act, which confers a right of appeal by trial de novo. At the start of the hearing appellant filed a motion to dismiss, alleging that s. 75 does not authorize the prosecutor to appeal from an acquittal. On June 8, 1981, Bédard J. of the Superior Court dismissed this motion; on June 29 following, the Court of Appeal denied leave to appeal this interlocutory judgment.
4. As Bédard J. had meanwhile retired, the hearing of the trial de novo resumed on February 9, 1983 before Doiron J. of the Superior Court. Appellant again submitted a motion to dismiss based on the same grounds. On March 23, 1983, Doiron J. held that in his opinion s. 75 does not allow an appeal from an acquittal; however, he said he could not reverse the Bédard J.'s decision to the contrary on this point because he was not sitting in appeal from that decision. He accordingly concluded that the motion had to be dismissed, but at the same time dismissed respondent's appeal without proceeding to hear the case. Respondent, alleging that this was manifestly a clerical error, asked him to correct his judgment, but Doiron J. said he lacked jurisdiction to do this without the consent of the other party.
5. On May 7, 1985, the Court of Appeal rendered judgment on an appeal by respondent. Chevalier J. (ad hoc) noted that Doiron J. of the Superior Court had dismissed the appeal accidentally; he further held that s. 75 authorized an appeal from an acquittal by way of a trial de novo. Appellant raised for the first time the conflict between s. 75 and s. 37.1 of the Charter of human rights and freedoms, R.S.Q., c. C‑12 (hereinafter the Quebec Charter), which guarantees the right not to be tried again for an offence of which one has been acquitted. Chevalier J. dismissed this argument because a judgment does not have "status as res judicata" within the meaning of s. 37.1 until the matter has come before all the levels of jurisdiction to which it can be appealed. As section 75 authorizes an appeal by trial de novo, the decision rendered at the trial level hearing was only the first step in the judicial process: as it does not have the effect of res judicata, it does not fall within the scope of s. 37.1 of the Quebec Charter.
6. The Court of Appeal accordingly allowed the appeal and referred the matter back to the Superior Court for a trial de novo to be held: hence the appeal to this Court.
Points at Issue
7. On an application by appellant, this Court stated the following constitutional questions:
1. Are Division I and ss. 5, 6 and 7(2) of Division III of the Act respecting the Constitution Act, 1982 (S.Q. 1982, c. 21) and s. 132 of the Summary Convictions Act of Quebec (R.S.Q., c. P‑15) inconsistent with the provisions of s. 33 of the Constitution Act, 1982 and so of no force or effect under s. 52(1) of the Constitution Act, 1982 , in so far as they are intended to place provincial legislation beyond the ambit of the provisions of ss. 2 and 7 to 15 of the Constitution Act, 1982 ?
2. If so, and if the Supreme Court decides that the Summary Convictions Act of Quebec allows Respondent to appeal by trial de novo from the verdict of acquittal in favour of Appellant, for lack of identification, do ss. 75 and 78(2) of the Act in question infringe the rights of Appellant guaranteed by ss. 7 , 11( h ) and 15 of the Canadian Charter of Rights and Freedoms , in so far as they allow Respondent to make good the deficiencies in its evidence at the trial de novo?
3. If sections 75 and 78(2) of the Summary Convictions Act of Quebec infringe the rights guaranteed by ss. 7 , 11( h ) and 15 of the Canadian Charter of Rights and Freedoms , can they be saved by s. 1 of the Charter, and are they therefore consistent with the Constitution Act, 1982 ?
8. It will be noted that appellant argued that the disputed sections were unconstitutional under the Canadian Charter in this Court for the first time: this is why none of the lower courts ruled on the point. The reason for this is that at the time the case was heard de novo before Bédard J., the Canadian Charter had not yet been adopted. From then until April 17, 1987, s. 132 of the Summary Convictions Act removed this Act from the application of ss. 2 and 7 to 15 of the Canadian Charter . In so far as that clause was valid, appellant could not exercise the rights guaranteed by the Canadian Charter either in the Superior Court or in the Court of Appeal. Appellant further referred to the Quebec Charter, which has only had priority over the disputed provisions since January 1, 1986 (S.Q. 1982, c. 61, s. 34).
I
Interpretation of s. 75 of Summary Convictions Act
9. In the lower courts most of the discussion centered on the question of whether s. 75 of the Summary Convictions Act allowed the prosecutor to appeal by way of trial de novo from the acquittal of the accused. In this Court, appellant repeated this ground, alleging that under a narrow interpretation of various sections of the Act such right of appeal does not exist. Counsel for the appellant did not make this argument orally at the hearing, but relied on the detailed statement in his submission.
10. I will not repeat the arguments made by appellant here, since I am in substantial agreement with the reasons of the Court of Appeal on this point and that in any case I consider that appellant should succeed on his second argument. In my view, s. 75 of the Summary Convictions Act does confer on the prosecutor a right to appeal from an acquittal by way of trial de novo. With respect, however, I must point out that, in my view, s. 75 does not apply generally to all of Part II of the Act, that is, to both the trial de novo and to the stated case, as the Court of Appeal found. Part II is divided into three divisions, the first of which is titled "Appeal" and the second "Stating a Case". Section 75 is the first section in Division I, which indicates the cases in which an appeal by way of trial de novo is available; in Division II, this function is performed by s. 90. Section 75 therefore does not cover both the remedies provided by the legislator, but applies only to an appeal by way of trial de novo.
11. As in my opinion the prosecutor had a right of appeal in the case at bar, I will now consider the second ground of appeal, namely the constitutionality of this right of appeal.
II
Canadian Charter of Rights and Freedoms
12. Appellant maintained inter alia that a de novo appeal from an acquittal is inconsistent with s. 11( h ) of the Canadian Charter , which reads as follows:
11. Any person charged with an offence has the right
...
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;
13. There is no doubt that appellant was "charged with an offence" within the meaning of s. 11, since he was charged with a provincial penal offence. In a recent case, R. v. Wigglesworth, [1987] 2 S.C.R. 541, this Court held that a person charged with such an offence benefits from the protection conferred by s. 11 (at p. 554):
The rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the State for public offences involving punitive sanctions, i.e., criminal, quasi‑criminal and regulatory offences, either federally or provincially enacted.
14. The crux of the present issue is therefore whether appellant was "finally acquitted" by the decision of the judge of the Court of Sessions of the Peace. If so, s. 11(h) guarantees him the right not to be tried again for these offences, and so not to have to undergo a new trial.
15. In the Court of Appeal, appellant raised the inconsistency of ss. 75 and 78(2) of the Summary Convictions Act with s. 37.1 of the Quebec Charter, which is substantially to the same effect as s. 11( h ) of the Canadian Charter :
37.1 No person may be tried again for an offence of which he has been acquitted or of which he has been found guilty by a judgment that has acquired status as res judicata.
The Court of Appeal dismissed this argument on the ground that the trial level decision had not acquired "status as res judicata", since it could be appealed under s. 75. In the Court's view, only a judgment which has come before all the appellate levels of jurisdiction can have status as res judicata and thereby fall within s. 37.1 of the Quebec Charter.
16. To determine whether appellant was "finally acquitted" in the case at bar, one must have a clear understanding of the nature of the appeal by trial de novo under the Summary Convictions Act. Section 75 sets forth the cases in which the right of appeal is available:
75. In the cases provided for in section 2, any person who thinks himself aggrieved by any conviction, order or dismissal, the prosecutor or complainant, as well as the defendant or the accused, may appeal to the Superior Court, sitting in and for the district in which the conviction was pronounced or the order issued.
Both parties may thus exercise an automatic right of appeal: as no leave to appeal is necessary, the courts have no control over the exercise of this right. Moreover, the party appealing does not really have to state grounds of appeal: it will suffice if he thinks himself "aggrieved" by the decision made, that is, he is dissatisfied because the justice did not rule in his favour.
17. The procedure on appeal is set forth in s. 78:
78. (1) When an appeal has been lodged in compliance with the requirements of this act, the court appealed to shall try the case and shall be the judge, as well of the facts as of the law.
(2) Any of the parties to the appeal may call witnesses and adduce evidence, whether or not such witnesses were called or evidence adduced at the hearing before the justice of the peace, either as to the credibility of any witness or as to any other fact material to the inquiry.
The hearing thus takes the form of a trial: the judge hears witnesses and the parties may adduce evidence both as to the credibility of those witnesses and as to the essential facts of the case. As it does not really matter whether such evidence was adduced at trial, a prosecutor whose evidence has been found inadequate has an opportunity of adding to it on appeal. In his decision the appellate judge rules on both the law and the facts. In short, to all intents and purposes, an "appeal" under ss. 75 and 78(2) could be taken for a first instance trial.
18. The question of whether an accused confronted by an appeal by way of trial de novo is "tried again" for the same offence has already been considered by the courts. In R. v. Jordan (1971), 1 C.C.C. (2d) 385, the accused argued that the trial de novo under the old s. 720 of the Criminal Code was contrary to s. 2(e) of the Canadian Bill of Rights, R.S.C. 1970, App. III, which specifies a right to a fair hearing in accordance with the principles of fundamental justice. This is what the Nova Scotia Court of Appeal wrote at pp. 391 and 392, in answer to the argument by the accused that a trial de novo placed him in double jeopardy:
Considering the above, as well as a review of other cases, it would appear that the application of the doctrine of double jeopardy is related to proceedings on a second indictment, following a final adjudication on an earlier indictment. To enable an accused person to rely on the plea of autrefois acquit, there should be two charges involved, and the offence with which he is charged on the second occasion must be the same offence, or practically the same offence as that with which he was charged on the first occasion.
...
In view of the above, it does not appear to me that the trial Judge's finding that the de novo provisions of the Code, where the Crown appeals from an acquittal, constitutes double jeopardy for the accused, is tenable. Furthermore, it seems to be obvious that where the statutory conditions of appeal have been complied with, in the case of an acquittal or a conviction, the Court has an obligation imposed on it by statute to hear and determine the appeal: s. 727(1).
19. The same reasoning was followed in R. v. McCaugherty, [1971] 2 W.W.R. 579 (Alta. Dist. Ct.) It should however be mentioned that these decisions were rendered under the Canadian Bill of Rights: the courts assumed that as an appeal by way of trial de novo had long been part of our law it could not be contrary to the rules of fundamental justice. Judicial interpretation of the rights listed in the Canadian Bill of Rights is not conclusive where a court is required to define the scope of the guarantees conferred by the Canadian Charter (R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at pp. 343‑44; R. v. Therens, [1985] 1 S.C.R. 613, at p. 639). The restrictive interpretation of the double jeopardy rule put forward in those two cases therefore does not necessarily resolve the issue before the Court.
20. In a more recent judgment rendered under the Canadian Charter , Dupont c. Rheault, [1987] R.J.Q. 1121, the Quebec Superior Court held on other grounds that ss. 75 and 78 of the Summary Convictions Act were in part unconstitutional. However, the Court considered that s. 11( h ) of the Canadian Charter could not be applied there, because a judgment only becomes final once the time period allowed for filing an appeal has expired. As trial de novo is an appellate procedure provided by the Act, the Court held that the accused had not been finally acquitted.
21. With respect, I consider that the appeal by way of trial de novo mentioned in ss. 75 and 78 of the Summary Convictions Act infringes s. 11( h ) of the Canadian Charter . It is true that an accused has not been finally acquitted until all the appeals provided for by law have been exhausted, as this Court held in R. v. Morgentaler, [1988] 1 S.C.R. 30, at pp. 155‑56:
It was contended that s. 605(1)(a), giving the Crown a right of appeal against an acquittal in a trial court on any ground involving a question of law alone offended ss. 7 and 11 (d), (f) and (h) of the Charter. Reliance was placed primarily on s. 11(h). There is a simple answer to this argument. The words of s. 11(h), "if finally acquitted" and "if finally found guilty", must be construed to mean after the appellate procedures have been completed, otherwise there would be no point or meaning in the word "finally".
22. Naturally, the accused cannot avoid an appeal based on an error by the trial judge, since there was no real acquittal if the decision rendered was the result of an error. However, one should not confuse an appeal which is decided in accordance with the record established in the lower court, and a hearing at which each party adduces his evidence over again and may even add to it in the event of any deficiency.
23. The proceeding in the case at bar is not a true appeal, but actually a new trial disguised as an appeal. As I mentioned, an appeal by trial de novo can raise questions of fact as well as questions of law; the appeal is as of right, and the prosecutor does not have to allege errors committed by the justice of the peace. There can thus be a second trial even if the trial judgment was rendered in accordance with all the rules of law. In fact, it is just as if once the accused was acquitted the prosecutor filed a new information alleging the same offence based on the same facts. This is precisely the type of abuse that s. 11(h) seeks to prevent. Section 11(h) guarantees the accused the right to plead autrefois acquit if the prosecution attempts to have him tried again for an offence of which he has been acquitted. Section 75 of the Summary Convictions Act bars him from raising this argument by authorizing the prosecution to repeat the trial as part of the appeal proceedings. The fact that a proceeding is called "appeal" is not sufficient to make it a true appeal and so prevent the accused from relying on s. 11( h ) of the Canadian Charter .
24. The word "finally" used in s. 11(h) should not be deprived of all meaning, but care must also be taken not to give it a meaning contrary to the Canadian Charter . In respondent's submission, the Canadian Charter would have to be infringed‑‑that is, the accused would have to go through two trials in addition to all the true appeals‑‑before it could be said that he had been finally acquitted. I cannot agree with this interpretation, as it contradicts the actual spirit of s. 11(h). An accused who is acquitted by a judgment containing no error is "finally acquitted" within the meaning of s. 11(h). Accordingly, I think that s. 75 of the Summary Convictions Act, to the extent that it allows a prosecutor or complainant to appeal by way of trial de novo from an acquittal of the accused, is inconsistent with the rights secured by s. 11( h ) of the Canadian Charter . The accused retains the right to appeal his conviction by trial de novo, adducing his evidence over again in the Superior Court. Section 78 is thus valid in its entirety, as it goes without saying that if an accused has the right to adduce evidence, the prosecutor may also use this right in an appeal brought by the accused.
25. Neither respondent nor the intervener submitted evidence on the justification and reasonableness of an appeal by way of trial de novo under s. 1 of the Canadian Charter . It is for the party arguing for the validity of a rule of law under s. 1 to establish that it is a "reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society" (R. v. Oakes, [1986] 1 S.C.R. 103). As such evidence was not adduced, I would find s. 75 of the Summary Convictions Act of no force or effect under s. 52 of the Constitution Act, 1982 , as regards the right of appeal by the prosecutor or complainant.
26. The Attorney General of Quebec stressed that at the time respondent exercised his right of appeal, in March 1981, appellant could not have taken advantage of his constitutional guarantees because the Canadian Charter was not yet in effect. In my opinion, if what the Attorney General is suggesting by this is that appellant should not benefit from the Charter's protection, these observations are not relevant in the case at bar. What section 11(h) guarantees appellant is the right not to be tried twice, in this case by the holding of a trial de novo. Since the Canadian Charter has been in effect, s. 11(h) allows the accused to make a plea of autrefois acquit to prevent such a trial being held. The date on which the appeal was initially brought is not relevant: what matters is that the Canadian Charter was in effect at the time the accused sought to make this plea. As to this a parallel can be drawn with the following passage from Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 359:
In my view, s. 13 is not being given in this case a retrospective effect. As I have indicated earlier, s. 13 guarantees the right not to have a person's previous testimony used to incriminate him or her in other proceedings. That right came into force on April 17, 1982, the date of the coming into force of the Charter. However, given the nature and purpose of the right, it inures to an individual at the moment an attempt is made to utilize previous testimony to incriminate him or her. The time at which the previous testimony was given is irrelevant for the purpose of determining who may or may not claim the benefit of s. 13 . As of April 17, 1982, all persons acquired the right not to have evidence previously given used to incriminate them. The protection accorded by the right is related not to the moment the testimony is given, but to the moment at which an attempt is made to use that evidence in an incriminating fashion.
27. In the same way, since April 17, 1982 all persons charged with an offence have acquired the right not to be tried again for an offence of which they have been finally acquitted. The protection conferred by this right is related not to the moment the offence was committed or the acquittal entered, but to the moment at which an attempt is made to re‑try the accused. In the case at bar, even though the Canadian Charter was not in effect at the time the proceedings began, it applies at the time this Court has to decide whether it should order the holding of a trial which will be an infringement of appellant's rights. It is apparent that such an order cannot be made.
28. Still in connection with the application of the Canadian Charter , the first constitutional question stated by this Court remains to be answered. That question concerns the validity of the exception clause adopted pursuant to s. 33 of the Canadian Charter to remove all Quebec legislation from the application of ss. 2 and 7 to 15 of the Canadian Charter . In the Summary Convictions Act, this exception clause is to be found in s. 132. However, under s. 33(3) of the Canadian Charter , s. 132 ceased to have effect on April 17, 1987, five years after it came into force. In light of the foregoing observations on the time at which the right conferred by s. 11( h ) of the Canadian Charter applies, it is not necessary for the purposes of the present appeal to rule on the validity of the exception clause, since it is no longer in effect at the present time. I will therefore refrain from answering the first constitutional question.
29. Finally, as I have concluded that s. 75 of the Summary Convictions Act is in part inconsistent with s. 11( h ) of the Canadian Charter , I will not deal with the parties' arguments on ss. 7 and 15 of the Canadian Charter or on ss. 1, 23, 33 and 37.1 of the Quebec Charter.
III
Conclusion
30. In sum, I consider that the right of a prosecutor or complainant to appeal from an acquittal by way of trial de novo is contrary to s. 11( h ) of the Canadian Charter . I would answer the constitutional questions as follows:
1. This question does not need to be answered.
2. Only section 75 infringes s. 11( h ) of the Canadian Charter , to the extent that it confers a right of appeal on the prosecutor or complainant.
3. No.
31. The appeal is accordingly allowed and the acquittal ordered by the judge of the Court of the Sessions of the Peace is restored. Appellant will be entitled to his costs in the Superior Court, the Court of Appeal and in this Court, both against respondent and against the intervener the Attorney General of Quebec.
Appeal allowed with costs.
Solicitors for the appellant: Tremblay, Bertrand, Morisset, Bois &
Mignault, Ste‑Foy.
Solicitors for the respondent: Flynn, Rivard, Québec.
Solicitors for the intervener the Attorney General of Quebec: Paul Monty and Lyne Morais, Ste‑Foy.
Solicitor for the intervener the Attorney General of Canada: Frank Iacobucci, Ottawa.
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