SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen
Applicant
and
Thomas
Robert Shea
Respondent
Coram: LeBel, Deschamps and Cromwell JJ.
Reasons
for judgment (application for leave to appeal):
(paras. 1 to
13)
|
|
Cromwell J.
(LeBel and Deschamps JJ. concurring)
|
______________________________
R. v. Shea, 2010 SCC 26, [2010] 2 S.C.R. 17
Her Majesty The Queen Applicant
v.
Thomas Robert Shea Respondent
Indexed as: R. v. Shea
2010 SCC 26
File No.: 33466.
2010: May 10; 2010: July 15.
Present: LeBel, Deschamps and Cromwell JJ.
application for leave to appeal
Appeals — Supreme Court of Canada — Jurisdiction —
Leave to appeal — Three‑judge panel of Court of Appeal overturning
decision rendered by one of its judges and granting accused’s motion for
extension of time to serve and file notice of appeal against his conviction —
Crown seeking leave to appeal, challenging jurisdiction of Court of Appeal to
overturn decision rendered by one of its judges — Whether Supreme Court has
jurisdiction to entertain leave application — If so, whether leave to appeal
raised question of sufficient importance — Supreme Court Act, R.S.C. 1985, c.
S-26, s. 40(1) , (3) .
The accused was convicted of sexual offences and,
several years later, sought to appeal his conviction. A judge of the Court of
Appeal dismissed his motion for leave to extend the time to serve and file a
notice of appeal, but a three‑judge panel of the same court granted the
motion in the interests of justice. The Crown applied for leave to appeal to
the Supreme Court, challenging the Court of Appeal’s jurisdiction to overturn
the decision rendered by one of its judges.
Held: The application for
leave to appeal should be dismissed.
In light of its role as the final court of appeal for
Canada, a liberal interpretation of s. 40(1) of the Supreme Court Act is
required. This section states that, subject to s. 40(3) of the Act, the Court’s
jurisdiction to grant leave under s. 40(1) extends to “any final or other
judgment of the Federal Court of Appeal or of the highest court of final resort
in a province”. The wording “any final or other judgment” is broad enough to
include the order which is the subject of the leave application. This
conclusion is reinforced by the expansive definition of “judgment” in s. 2 of
the Act. Section 40(3) , read in conjunction with ss. 691 to 693 of the Criminal
Code , excludes many criminal appeals from the ambit of s. 40(1) , but the present
application is not so excluded. In this case, however, while the Court has
jurisdiction to entertain the leave application, this application must be
dismissed as it raises no question of sufficient importance within the meaning
of s. 40(1) .
Cases Cited
Not followed: Hind v.
The Queen, [1968] S.C.R. 234; considered: Hill
v. The Queen, [1977] 1 S.C.R. 827; R. v. Gardiner,
[1982] 2 S.C.R. 368; referred to: Goldhar v. The Queen,
[1960] S.C.R. 60; Paul v. The Queen, [1960] S.C.R. 452; R. v. J.
Alepin Frères Ltée, [1965] S.C.R. 359; R. v. MacDonald, [1965] S.C.R. 831; Ernewein v. Minister of Employment and
Immigration, [1980] 1 S.C.R. 639; MacDonald v. City of Montreal,
[1986] 1 S.C.R. 460; Roberge v. Bolduc, [1991] 1 S.C.R. 374; R. v.
Hinse, [1995] 4 S.C.R. 597; R. v. Mentuck, 2001 SCC 76, [2001] 3
S.C.R. 442.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C-46, ss. 691 to 693 .
Supreme Court Act, R.S.C. 1985, c. S-26,
ss. 2 , 40(1) , (3) .
APPLICATION for leave to appeal to the Supreme Court of
Canada. Application dismissed.
Alexander V. Hrybinsky
and Christine Tier, for the applicant.
Lisa Loader and Michael
Hefferon, for the respondent.
The judgment of the Court was delivered by
[1] Cromwell J. — The applicant Crown
applies for leave to appeal from an order of the Ontario Court of Appeal
granting the respondent an extension of time to serve and file his notice of
appeal. As a question about the Court’s jurisdiction to grant leave was raised,
this Court ordered an oral hearing. I would dismiss the application for leave
to appeal as it raises no question of sufficient importance within the meaning
of s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26 . Our
review of the jurisprudence reveals that the courts of appeal recognize that
there are narrow circumstances where a court can reconsider the decision of a
judge sitting alone. We are not persuaded from the record that guidance is
required on this question or that the circumstances of this case warrant
granting the application.
[2] The
respondent was convicted of historical sexual offences. He was sentenced to
imprisonment for two years less one day. Some eight and one half years later,
the respondent sought from a judge of the Court of Appeal sitting alone an
extension of time to serve and file a notice of appeal against conviction. His
motion was dismissed. Subsequently, a three‑judge panel of the Court of
Appeal granted the motion in the interests of justice. The Crown seeks leave to
appeal, challenging the jurisdiction of the Court of Appeal to overturn the
decision rendered by one of its judges. The question is whether this Court has
jurisdiction to hear the appeal.
[3] The
relevant jurisdictional provision is s. 40(1) of the Supreme Court Act which
currently reads as follows:
40. (1) Subject to subsection (3), an appeal lies to the Supreme
Court from any final or other judgment of the Federal Court of Appeal or 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 that 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
that judgment is accordingly granted by the Supreme Court.
Jurisdiction to
grant leave under s. 40(1) extends to any final or other judgment of the
Federal Court of Appeal or of the highest court of final resort in a province
in which judgment can be had in the particular case. On its face, this
language is broad enough to include the order which is the subject of this
leave application, subject of course to the requirement that the question
involved in the case be of sufficient importance. This conclusion is reinforced
by the expansive definition of “judgment” in s. 2 of the Act. I note that while
s. 40(3) of the Act, read in conjunction with ss. 691 to 693 of the Criminal
Code, R.S.C. 1985, c. C-46 , excludes many criminal appeals from the ambit
of s. 40(1) , the present application is not so excluded.
[4] The
main authority supporting the view that the Court does not have jurisdiction to
entertain this leave application is Hind v. The Queen, [1968]
S.C.R. 234. In that case, a three-judge panel of this Court held that it did
not have jurisdiction to grant leave to appeal from the refusal of a Court of
Appeal to grant an extension of time to hear a sentence appeal. The Court relied
on Goldhar v. The Queen, [1960] S.C.R. 60, Paul v. The Queen,
[1960] S.C.R. 452, and R. v. J. Alepin Frères Ltée, [1965] S.C.R. 359.
However, each of those cases has been overruled by subsequent decisions of the
Court and, in my view, the time has come to say that Hind itself should
no longer be followed.
[5] As
noted in Hill v. The Queen, [1977] 1 S.C.R. 827, and subsequently in R. v.
Gardiner, [1982] 2 S.C.R. 368, the changes made in 1949 to what is now
s. 40 resulted in large part from the change in the role of this Court when
appeals to the Privy Council were abolished. Not only was the wording of the
provision changed, but the Court, in light of its role as the final court of
appeal for Canada, took a broader approach to the interpretation of its
appellate jurisdiction which was inconsistent with many earlier decisions,
including the cases relied upon by the Court in Hind.
[6] Hill
itself was a turning point. In that case, the Court granted leave to appeal to
consider whether the Court of Appeal had jurisdiction to lengthen the
appellant’s sentence when there had been no cross-appeal by the Crown. As this
was a sentencing issue, the jurisdiction of the Court to hear the appeal was
squarely before the Court as were its earlier decisions which had taken a
narrow view of its jurisdiction to grant leave to appeal from sentencing
decisions. The Court in Hill specifically refused to follow Goldhar and
held that s. 41(1) (now s. 40(1) ) was to have a broad interpretation rather
than the narrow interpretation previously attributed to it.
[7] The
Court in Hill also noted that Goldhar had been followed in Paul
which was in turn relied upon in J. Alepin Frères and R. v.
MacDonald, [1965] S.C.R. 831. In considering the proper
interpretation of s. 41(1) in light of legislative changes, the Court held at
p. 850:
. . . the literal construction [i.e. of the words
“final or other judgment”] 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 the Statute of
Westminster.
Thus, while it
explicitly stated that fitness of sentence should never be considered by the
Court, the earlier jurisprudence indicating that the Court did not have
jurisdiction to hear appeals from sentencing decisions was no longer good law.
That earlier jurisprudence included the three key decisions relied upon by the
Court in Hind.
[8] In
1982, in Gardiner, this Court considered once again its
jurisdiction to grant leave to appeal from sentencing decisions and affirmed
the breadth of its authority to grant leave under what is now s. 40(1) of the Supreme
Court Act . Dickson J. (as he then was) stated at pp. 397-98:
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.
. . .
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.
With respect to Hill,
the Court in Gardiner stated at pp. 402-4:
In Hill
all nine judges joined in support of the view that s. 41 [now s. 40] 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.
. . .
. . . Hill gave the quietus to Goldhar and to the
abnegation which underpinned 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.
[9] A
similar evolution may be observed with respect to the Court’s jurisdiction to
grant leave to appeal when the highest appellate tribunal in the province has
refused leave to appeal to it. The Court held in Ernewein v. Minister of
Employment and Immigration, [1980] 1 S.C.R. 639, that it did not have
jurisdiction in such cases. However, in 1986, the Court revisited this question
and decided in favour of its jurisdiction. In MacDonald v. City of Montreal,
[1986] 1 S.C.R. 460, the Court considered its jurisdiction to consider the
appellate court’s refusal to grant leave to appeal and overturned Ernewein
and expanded upon its reasoning in Hill, Gardiner and subsequent
cases thereby indicating that “final or other judgment” provides jurisdiction
to this Court to hear any issue it deems to be of sufficient importance as long
as resort to s. 40 is not excluded by s. 40(3) of the Supreme Court Act .
Wilson J. discussed the question in these terms in MacDonald v. City of
Montreal, at pp. 508-9:
The proposition that under s. 41(1) the Court has jurisdiction to
intervene even in the case of discretionary decisions of intermediate appellate
courts is supported by other provisions of the Supreme Court Act .
Section 44 , for example, provides that the Court has no power to hear an appeal
from a judgment or order made in the exercise of judicial discretion except
where leave to appeal is granted by this Court pursuant to s. 41 of the Act.
The section 44 restriction on the Court’s power would clearly apply to appeals
arising under s. 38 of the Act, i.e., where a provincial court of appeal
had granted leave to appeal to the Supreme Court of Canada. It would also apply
to appeals arising under s. 39 of the Act, i.e., where the parties have
agreed to appeal a judgment of a lower court directly to the Supreme Court of
Canada instead of to the provincial Court of Appeal. Accordingly, in the less
usual situations in which leave to appeal to this Court is not granted by a
panel of this Court, the statutory jurisdiction excludes appeals from the
exercise of judicial discretion. On the other hand, the explicit exception of
s. 41 from the s. 44 restriction serves to indicate that where the route to
this Court is the more usual one, i.e., where leave to appeal is granted
by this Court itself, its jurisdiction is not restricted to non‑discretionary
decisions. Rather, under s. 41 of the Act the Court’s jurisdiction is confined
only by its own exercise of discretion in determining which decisions of an
intermediate appellate court are of sufficient national importance to warrant a
grant of leave.
It was stated in R. v. Gardiner, [1982] 2
S.C.R. 368, that while there are many instances in which this Court is
justifiably reluctant to intervene in decisions of the courts below, it is
incorrect to confuse this attitude of reluctance with lack of jurisdiction.
Dickson J. (as he then was) came to his conclusion as to the broad ambit of the
Court’s jurisdiction after a thorough survey of its history and a consequent
appreciation of its expanded role and increased significance since the days
when most appeals were as of right and the Supreme Court of Canada was itself
an intermediate appellate court. Given this expansion, the broadly phrased
statutory language in which the Court’s jurisdiction was framed, and the role
of the Court as the ultimate appellate tribunal, he concluded that in the
absence of any irrefutable indication to the contrary, the Court’s jurisdiction
should not be restrictively construed. [Underlining added.]
As explained
later in Roberge v. Bolduc, [1991] 1 S.C.R. 374, at pp. 392-93:
Any doubt on the issue of jurisdiction is, in my view, resolved by
MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, where, as here, the
Court of Appeal refused to grant leave to appeal. Although dissenting on the
constitutional issue involved, Wilson J. spoke on the issue of jurisdiction at
p. 508:
Under s. 41(1) of the Supreme Court Act [now s.
40(1) ] this Court retains the discretionary power to interfere with any final
or other judgment of the intermediate appellate courts which raises an issue of
national importance. This discretion is itself broadly phrased so as to
include any case with respect to which “. . . 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 . . . .” While a certain amount of deference to the
undoubted competence of intermediate appellate courts to control their own
leave granting process is called for, it is equally evident that this Court’s
jurisdiction to exercise its own discretion in intervening in such decisions is
not statutorily confined. [Emphasis added.]
[10]
In 1995, the Court considered R. v. Hinse, [1995] 4 S.C.R.
597. In that case, the Court of Appeal set aside the appellant’s conviction but
rather than ordering a new trial, it entered a stay of proceedings. Unhappy
with the lack of finality and statement of innocence, the appellant wished to
appeal the order of stay of proceedings to this Court. Initially, this Court
refused leave to appeal but reconsidered its decision and in doing so,
discussed the jurisdiction of the Court as found in s. 40(1) . The Court noted
the concern that an appellate court, in making an order pursuant to s. 686(8)
of the Criminal Code , could overstep its own jurisdiction and make an
order in direct contradiction of the underlying judgment. It expressed the need
for a broad and liberal interpretation of s. 40(1) , stating at paras.
34-35:
Given this
troubling concern, I am inclined to adopt a more generous interpretation of s.
40(1) (and a correspondingly more narrow interpretation of s. 40(3) ) which
would facilitate this Court’s supervisory role in ensuring the underlying
consistency of appellate court orders rendered under the procedural regime of
the Criminal Code .
For all the foregoing reasons, I am persuaded that an
accused or the Crown ought to be permitted to independently seek leave to
appeal the legality of an order rendered under s. 686(8) as a “final or other
judgment . . . of the highest court of final resort in a province” under this
Court’s general jurisdiction under s. 40(1) of the Supreme Court Act .
[11]
I conclude my review of the cases with R. v. Mentuck, 2001
SCC 76, [2001] 3 S.C.R. 442. Although this case involved a publication ban, the
Court made a general comment regarding its jurisdiction under s. 40(1) at para.
20:
The Supreme Court Act was passed to allow this
Court to serve as a “general court of appeal for Canada”, and s. 40 must be
read in light of the purpose of the Court’s enabling legislation. Unless the
Court is specifically prohibited from entertaining appeals by s. 40(3) of the
Act, it may grant leave to hear any appeal from the decision of any “court
of final resort” in Canada. Parliament has seen fit to provide generally
for rational routes of appeal in criminal cases. In these cases, we cannot take
jurisdiction, nor would we wish to. But a purposive approach to s. 40
requires the Court to take jurisdiction where no other appellate court can do
so, unless an explicit provision bars all appeals. Section 40(1) ensures that
even though specific legislative provisions on jurisdiction are lacking, this
Court may fill the void until Parliament devises a satisfactory solution.
[Emphasis added.]
[12]
I conclude that under s. 40(1) of the Act, the Court has jurisdiction to
grant leave to appeal from an order “of the Federal Court of Appeal or of the
highest court of final resort in a province, or a judge thereof, in which
judgment can be had in the particular case” refusing or granting an extension
of time to an appellant in an indictable appeal and that the order from which
leave to appeal is sought is such an order. However, I would emphasize that
the existence of this jurisdiction does not in any way alter the test
applicable under s. 40(1) , namely that the question “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 that 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”. It seems to me that only in very rare
circumstances would a proposed appeal from an order granting an extension of
time for appealing meet this test.
[13]
While I would affirm the Court’s jurisdiction to grant leave, I would
dismiss the application for leave to appeal without costs.
Application dismissed.
Solicitor for the applicant: Attorney General of Ontario,
Toronto.
Solicitor for the respondent: Community Legal Clinic — Simcoe,
Haliburton, Kawartha Lakes, Orillia.