The Queen v. Harrison, [1977] 1 SCR 238

SUPREME COURT OF CANADA

The Queen v. Harrison, [1977] 1 S.C.R. 238

Date: 1976-01-30

Her Majesty The Queen Appellant;

and

Laurence Arthur Harrison Respondent.

1975: October 27; 1976: January 30.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Appeal by Crown—Notice of appeal signed by counsel for Attorney General—Instructions to counsel signed by official in Attorney General's depart­ment—Implied authority to delegate—Notice of appeal valid—Manner of proof when authority of counsel questioned—Criminal Code, R.S.C. 1970, c. C-34, s. 605(1).

The respondent was acquitted at trial on twelve counts of theft by conversion. On appeal by the Crown a preliminary objection to jurisdiction was taken on the ground that the notice of appeal did not comply with the provisions of s. 605(1) of the Criminal Code. The notice of appeal had been signed "J. E. Spencer, Counsel for the Attorney General". Mr. Spencer's authority was derived from a letter bearing the letterhead "Attorney General, Province of British Columbia", signed by an official of that department, Mr. N. A. McDiarmid, "Director, Criminal Law". The respondent argued suc­cessfully before the Court of Appeal that in order to comply with s. 605(1) of the Code, Mr. Spencer's instructions must come directly from the Attorney Gen­eral or from the Deputy Attorney General of the Prov­ince. The Crown appealed from the judgment of the Court of Appeal to this Court.

Held: The appeal should be allowed.

There is implied authority in the Attorney General to delegate the power to instruct in s. 605(1). Section 605(1) does not require the Attorney General personally to appeal or personally to instruct counsel to appeal in every case. Although there is a general rule of construc­tion in law that a person endowed with a discretionary power should exercise it personally (delegatus non potest delegare) that rule can be displaced by the lan­guage, scope or object of a particular administrative scheme. Where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be pre­sumed that the acts will be performed, not by the Minister in person, but by responsible officials in his

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department. While there was no evidence in the present case that the Attorney General of British Columbia personally instructed Mr. McDiarmid to act on his behalf in appealing judgments or verdicts of acquittal of trial courts it was reasonable to assume the "Director, Criminal Law" of the Province would have that author­ity to instruct. The definition of Attorney General in s. 2 of the Criminal Code includes "the lawful deputy" of the Attorney General. The words "lawful deputy" are not confined to "Deputy Attorney General"; they com­prehend all persons appointed to act on behalf of the Attorney General when acting within the scope of their authority.

In the absence of direct challenge, no evidence need be adduced to confirm the authority of counsel who appeals on behalf of the Crown and describes himself as "counsel for" or "counsel instructed by" or "agent for" the Attorney General or in words to like effect. Advo­cates are officers of the Court and it is to be taken, in the normal course, that when a counsel is acting with the authority of the Attorney General he is indeed clothed with that authority. If objection is taken which raises ground for doubt as to authority, it is normally sufficient if counsel produces a letter which he can say he received and believes to be signed by the Attorney General or Deputy Attorney General or an officer of the department whom he understands to have requisite au­thority to institute criminal appeals.

R. v. Wiens (1970), 74 W.W.R. 639, approved; R. v. Badall, [1975] 2 S.C.R. 503, considered; R. v. Green (1970), 1 C.C.C. (2d) 145; R. v. Martin (No. 1) (1971), 4 C.C.C. (2d) 271, disapproved; Metropolitan Borough and Town Clerk of Lewisham v. Roberts, [1949] 2 K.B. 608; Carltona, Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560; Lemay v. The King, [1952] 1 S.C.R. 232; R. v. Turner, [1910] 1 K.B. 346, referred to.

APPEAL by the Crown from the dismissal of an appeal to the Court of Appeal for British Columbia on a preliminary objection to jurisdic­tion on the ground that the notice of appeal did not comply with the provisions of s. 605(1) of the Criminal Code. Appeal allowed.

J. E. Smith, for the appellant.

J. T. Steeves, for the respondent.

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The judgment of the Court was delivered by

DICKSON J.—The respondent Harrison was acquitted before Judge Mussallem in Provincial Court at Vancouver on twelve counts of theft by conversion of sums of money. On appeal by the Crown a preliminary objection to jurisdiction was taken on the ground that the notice of appeal did not comply with the provisions of s. 605(1) of the Criminal Code which reads:

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

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

The notice of appeal had been signed "J. E. Spenc­er, Counsel for the Attorney General". Mr. Spenc­er's authority was derived from a letter bearing the letterhead "Attorney General, Province of British Columbia", signed by an official of that department, Mr. N. A. McDiarmid, "Director, Criminal Law". The respondent Harrison argued successful­ly before the Court of Appeal that in order to comply with s. 605(1) of the Code, Mr. Spencer's instructions must come directly from the Attorney General or from the Deputy Attorney General of the Province.

In reaching its conclusion, the Court of Appeal relied on R. v. Badall, a decision of that Court then under appeal to this Court. Some three weeks after the present case was before the British Columbia Court our Court, in a unanimous deci­sion of the full bench, set aside the judgment of the Court in Badall[1]. Counsel for the Crown submits that the rationale of Badall applies to the case at bar. I am by no means persuaded that such is the case. In Badall the Court concentrated on the form of the notice of appeal and did not deal with the question of implied authority to delegate at issue here. As in the present case the question was whether the Crown's notice of appeal from the respondent's acquittal complied with s. 605 of the Criminal Code. In Badall, however, counsel had

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signed the notice of appeal as "Agent for the Attorney General of Canada" rather than "Coun­sel for the Attorney General of Canada". It was contended that an agent could not bring an appeal in the name of the Attorney General if the notice was signed by such "agent" even though no doubt had been cast on the fact of agency. Support for the contention was said to be found in s. 748(6) of the Code dealing with appeals in summary convic­tion matters, which in contrast to the words of s. 605(1) authorizes an appeal by, inter alia, "the Attorney General or his agent". In the course of his reasons delivered on behalf of this Court, the Chief Justice referred to Lemay v. The King[2], which had not been brought to the notice of the British Columbia Court of Appeal, in which this Court rejected the contention that the Attorney General must sign the notice of appeal personally. At the time Lemay was decided, the section of the Code corresponding to the present s. 605(1) was s. 1013(4) which gave a right of appeal only to "the Attorney General". The right has been extended in the present s. 605(1) to "the Attorney General or counsel instructed by him for the purpose". The Chief Justice's observations in Badall with respect to the difference between a counsel who is "agent of the Attorney General" and one who is "instructed by the Attorney General" were in these terms:

In my opinion, the extension of the Crown's right to appeal to counsel instructed by the Attorney General, while also keeping the right in the Attorney General as before, has not made the Lemay case inapplicable. Indeed, I am unable to appreciate any but a semantic difference between a counsel who is an agent of the Attorney General and a counsel instructed by the Attor­ney General; the latter can surely be no more than an agent, albeit perhaps a special one for the occasion.

In Badall, counsel for the respondents contended also that there was no proof that the person signing as agent was in fact counsel for the Attor­ney General or that he had been instructed by the Attorney General for the purpose of the appeal. While that is the substantial point in the present appeal, it was not essential to the decision in

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Badall. Nor was it discussed by the Court because the only argument raised in the Court of Appeal had been that an agent was not empowered by s. 605 to sign the notice of appeal.

Therefore this Court has not considered R. v. Green[3] or R. v. Martin (No. 1)[4], to which we have been referred by counsel for the respondent in this appeal. Neither Green nor Martin is directly on point. In Martin's case, an application for an order extending the time for giving notice of appeal was made by "Mr. MacMillan for F. Sigsworth repre­senting the Attorney-General of Canada". The form of the signature was explained as "due to Mr. Sigsworth's absence in Japan". Nowhere in the record of the application was there any allegation that either Mr. MacMillan or Mr. Sigsworth had been instructed by the Attorney General of Canada for the purpose of the appeal. The judg­ment of the Court was delivered by Traynor C.J. P.E.I. who directed attention to the distinction (rejected by this Court in Badall) between s. 605(1) appeals and those in summary conviction matters. The learned Chief Justice said, p. 275:

On the appeal, counsel for the appellant strenuously urged that the application had not been properly made within the provisions of s. 584(1). He argued that there was nothing to show that Mr. Sigsworth was the agent of the Attorney-General of Canada, although as I intimated above, the statute requires more than agency. He demonstrates from the record that there was nothing to show connection between Mr. MacMillan and the Attorney-General of Canada and that there was nothing to show any delegation of authority to Mr. MacMillan.

and continued, p. 276:

When objection was raised, it was still open to counsel to apply for leave to adduce evidence that at the date of the application Mr. Sigsworth had in fact been instructed to enter an appeal against the order of July 20, 1970. However, no attempt was made to have such evidence presented; and we do not think that the deficiency was cured by the filing of the notice of appeal on September 28, 1970, in which the signature is followed by the words, "counsel instructed by the Attorney-General of Canada" without further evidence that instruction by

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the Attorney-General of Canada had been given before the application for the order now under appeal.

The order appealed against was set aside.

In Green's case the notice of application for leave to appeal from sentence was signed by coun­sel as "Agent of the Minister of Justice for Canada" and not as "Counsel for the Attorney General for Canada". The Minister of Justice is ex officio Attorney General of Canada. Limerick J.A. deliv­ered the judgment of the New Brunswick Supreme Court, Appeal Division, and in the course of that judgment said, p. 146:

Any presumption of proper authority to institute the appeal was rebutted when Crown counsel filed with the Court a letter on which he relied for his authority to appeal. This letter purported to be signed by one "J. M. Bentley, For Director, Criminal Law Section", and was written on the letterhead of the Department of Justice. There was no indication as to J. M. Bentley's occupa­tion; it might be that of a stenographer.

Section 2(2) ... of the Code provides that with cer­tain inapplicable exceptions "Attorney General" includes Deputy Attorney-General.

The learned judge of appeal continued, p. 147:

Where a statutory power is given to an officer or an individual that power cannot be delegated to another in the absence of statutory authority so to do. See Abrahams v. The Queen (1881), 6 S.C.R. 10.

Section 584 clearly intends that there must be instruc­tion to appeal given by the Attorney-General or Deputy Attorney-General directly to counsel. The wording "instructed by him for the purpose" must be given its ordinary meaning.

The right of appeal is not a common law right but a statutory creation and, in the case of an appeal by the Crown, one of quite recent creation and must be strictly construed. The wording "instructed by him", differing so materially from the wording conferring the right of appeal given by s. 720 of the Code, would suggest that in the case of an appeal by the Crown in procedure by indictment there is a greater responsibility resting on the Crown than in summary conviction matters and the Attorney-General or his Deputy must take the personal responsibility for instituting such an appeal. That au­thority cannot be delegated to others, certainly not to a

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person or [sic] unidentified capacity purporting to sign "For Director, Criminal Law Section". (Italics are mine.)

The Court concluded that counsel for the Crown was not vested with the power to make the applica­tion for leave to appeal as "he had not been instructed by the Attorney-General or his Deputy for the purpose."

The Appellate Division of the Supreme Court of Alberta reached a different, and, I believe, prefer-able conclusion on identical facts in R. v. Wiens[5]. The notice of appeal had been authorized, it appeared, by Mr. J. M. Bentley of the Department of Justice. The Court referred to what had been said by Jenkins J. and by Denning L.J. (as he then was) in Metropolitan Borough and Town Clerk of Lewisham v. Roberts[6]. Lord Denning said, p. 621:

... Now I take it to be quite plain that when a minister is entrusted with administrative, as distinct from legisla­tive, functions he is entitled to act by any authorized official of his department. The minister is not bound to give his mind to the matter personally. This is implicit in the modern machinery of government...

The Alberta Court disposed of the preliminary objection in these words, p. 640:

The word "official" is used in each of these quota­tions. This would imply that the person who gave the instructions to appeal held such a position in the Department that it could be implied that he was performing this duty on the instructions of the Minister. I am not suggesting that such a person must hold any specific office in the Department. The present case illustrates the type of person who would be included as an "offi­cial". The criminal law section is charged with the responsibility for all criminal litigation conducted by the Government of Canada. As director of that section, Mr. J. A. Scollin, Q.C. would have the implied authority to authorize these appeals. Mr. Bentley, as the person next senior to Mr. Scollin and authorized to act as director in his absence, would unquestionably have similar author­ity. A similar inference could be drawn from other officials, who, because of their position in the Department, it could be assumed, had been authorized to act for the Minister in such cases. The preliminary objection is dismissed.

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In my opinion there is implied authority in the Attorney General to delegate the power to instruct, in s. 605(1). I do not think that s. 605(1) requires the Attorney General personally to appeal or personally to instruct counsel to appeal in every case. Although there is a general rule of construc­tion in law that a person endowed with a discre­tionary power should exercise it personally (delegatus non potest delegare) that rule can be displaced by the language, scope or object of a particular administrative scheme. A power to dele­gate is often implicit in a scheme empowering a Minister to act. As Professor Willis remarked in "Delegatus Non Potest Delegare", (1943), 21 Can. Bar Rev. 257 at p. 264:

.. in their application of the maxim delegatus non potest delegare to modern governmental agencies the Courts have in most cases preferred to depart from the literal construction of the words of the statute which would require them to read in the word "personally" and to adopt such a construction as will best accord with the facts of modern government which, being carried on in theory by elected representatives but in practice by civil servants or local government officers, undoubtedly requires them to read in the words "or any person authorized by it".

See also S. A. DeSmith, Judicial Review of Administrative Action, 3d ed., at p. 271. Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his department: Carltona, Ltd. v. Commissioners of Works[7]. The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf

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of the Minister, within the bounds of their respec­tive grants of authority, in the discharge of minis­terial responsibilities. Any other approach would but lead to administrative chaos and inefficiency. It is true that in the present case there is no evidence that the Attorney General of British Columbia personally instructed Mr. McDiarmid to act on his behalf in appealing judgments or ver­dicts of acquittal of trial courts but it is reasonable to assume the "Director, Criminal Law" of the Province would have that authority to instruct.

I do not find anything in the Criminal Code which derogates from the thought that the duties imposed upon the Attorneys General are to be exercised under their authority by responsible offi­cials of their respective departments. "Attorney General", according to an amendment to s. 2 of the Code made in 1968-69, includes "the lawful deputy" of the said Attorney General or in the French version de «substitut légitime». I do not read "lawful deputy" as confined to "Deputy Attorney General". The words comprehend all persons appointed to act on behalf of the Attorney General when acting within the scope of their authority.

The authority of Crown counsel to act in instituting an appeal is not something which must be proved as part of the case on appeal. In the absence of direct challenge, no evidence need be adduced to confirm the authority of counsel who appeals on behalf of the Crown and describes himself as "counsel for" or "counsel instructed by" or "agent for" the Attorney General or in words to like effect. Advocates are officers of the Court and it is to be taken, in the normal course, that when a counsel states he is acting with the authority of the Attorney General he is indeed clothed with that authority. Technical challenges to jurisdiction based upon alleged insufficiency of signature to notices of appeal can be wasteful of time and money. If, however, objection be taken which raises ground for doubt as to authority, the ques­tion arises as to how far one must go, and what evidence must be adduced, to establish authority. The answer will depend on the circumstances of the particular case. Without attempting to lay down any general rule, it would normally be sufficient

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if counsel produces a letter which he can say he received and believes to be signed by the Attor­ney General or Deputy Attorney General or an officer of the department whom he understands to have requisite authority to institute criminal appeals. See R. v. Turner[8].

I would allow the appeal, set aside the judgment of the Court of Appeal for British Columbia allow­ing the preliminary objection and direct that the appeal be proceeded with.

Appeal allowed.

Solicitors for the appellant: Bourne, Lyall, Davenport & Spencer, Vancouver.

Solicitors for the respondent: Russell & DuMoulin, Vancouver.