The Queen v. Sheets, [1971] SCR 614

Supreme Court of Canada

The Queen v. Sheets, [1971] S.C.R. 614

Date: 1971-02-01

Her Majesty The Queen Appellant;

and

Roy Sheets Respondent.

1970: November 17, 18; 1971: February 1.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Criminal Law—Appeals—Breach of trust by elected municipal official—Indictment quashed—Crown’s right to appeal—Judgment or verdict of acquittal—Meaning of “official”—Criminal Code, 1953-54 (Can.), c. 51, ss. 99, 103, 510(1), 584 (1)(a).

The respondent, an elected municipal official, was charged with a breach of trust in connection with the duties of his office by causing payment to be made out of the County funds for work done for his personal benefit on his own lands, contrary to s. 103 of the Criminal Code. He moved, before plea, to quash the indictment on the ground that it did not disclose any offence known to law. The trial judge quashed the indictment on the ground that a municipal officer or a municipal official could not be charged under s. 103 as the Code made it clear that there was a difference between an “official” and a “municipal official”. The appeal of the Crown was dismissed by a majority judgment of the Appelate Division on the ground that this was not a judgment or verdict of acquittal within the meaning of s. 584(1)(a) of the Code. The Crown was granted leave to appeal to this Court, which reserved the question of jurisdiction of this Court in the matter to be decided by the tribunal hearing the appeal.

Held: The appeal should be allowed.

The grounds upon which the trial judge proceeded to maintain the motion to quash are not founded on procedural or technical defects in the indictment; on the contrary, his judgment is predicated on the interpretation he gave to the provisions of s. 103. His judgment was, in essence, tantamount to a judgment rendered in a case tried on the merits. If the respondent were charged subsequently for the same offence, a plea of autrefois acquit would lie. Being

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thus a final judgment or verdict of acquittal resting on a question of law alone, the Attorney General had a right of appeal to the Court of Appeal.

The respondent, as an elected municipal official, is an official holding an office within the meaning of s. 103 of the Code and, as such, subject to the provisions of that section. The position held by the respondent is a position of duty, trust or authority in the public service or is a service under constituted authority. Hence, the respondent may be held to be an official holding an office within the meaning of s. 99(e)(i) and 99(e)(ii) of the Code.

APPEAL by the Crown from a judgment of the Supreme Court of Alberta, Appellate Division[1], affirming a judgment of the trial judge quashing the indictment. Appeal allowed.

Ross Paisley, for the appellant.

A.M. Harradence, Q.C., for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—On September 29, 1969, respondent appeared before Mr. Justice H.W. Riley, in the Trial Division of the Supreme Court of Alberta, on an indictment preferred under s. 103 of the Criminal Code. Section 103 provides that:

103. Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and is liable to imprisonment for five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

The indictment against Roy Sheets reads as follows:

That he at or near Red Deer in the Judicial district of Red Deer in the Province of Alberta between the 1st day of October, A.D. 1966, and the 30th day of November, A.D. 1966, did, being an official, unlawfully commit a breach of trust in connection with the duties of his office, namely as a member of the Council of the County of Red Deer, to wit: by causing payment to be made out of the County of

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Red Deer funds for work done for the personal benefit of the said Roy Sheets on his lands contrary to the Criminal Code.

On the arraignment, respondent, pursuant to s. 510(1), moved, before plea, to quash the indictment on the ground that it did not disclose any offence known to law. After argument, the learned judge took the matter under advisement and, by judgment rendered on November 18, 1969, he quashed the indictment for reasons thus expressed:

A municipal officer or a municipal official cannot be charged under section 103 as the Code makes it clear that there is a difference between an official and a “municipal official”. The word official is defined and it is clearly an office which is involved with either the federal or provincial government.

The Crown appealed from this decision to the Appellate Division of the Supreme Court, pursuant to s. 584(1)(a) which provides that:

584. (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, or …

At the hearing of the appeal, respondent submitted (i) that a judgment quashing an indictment is not “a judgment or verdict of acquittal” within the meaning of s. 584(1)(a) and, consequently, the Crown had no right of appeal in the premises and (ii) that the judgment of Riley J. is well-founded.

Respondent’s first submission was acceded to by Johnson and McDermid, JJ.A., who relied on the decision of this Court in Kipp v. The Attorney General of Ontario[2]. This, being decisive of the appeal, the learned judges did not deal with respondent’s second submission. Kane, J.A., dissented. Resting his opinion on the decision of

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this Court in Lattoni and Corbo v. The Queen[3], he found that the judgment under review was a judgment or verdict of acquittal on a question of law alone and, accordingly, one from which the Crown had a right of appeal. Having then considered the appeal on the merits, the learned judge rejected, as ill-founded, the view that a municipal officer or a municipal official cannot be charged under s. 103 of the Code. In the result, the appeal of the Crown was dismissed by a majority judgment of the Appellate Division[4].

The Crown then sought leave to appeal from this decision to this Court on the grounds that the Appellate Division erred in failing to hold that the judgment of Riley J. was a judgment or verdict of acquittal and that the indictment disclosed a good and valid charge against the accused. Respondent opposed this application, on the basis that this Court had no jurisdiction in the matter. The Court granted leave, reserving the question of jurisdiction to be decided by the tribunal hearing the appeal.

Dealing with the question of jurisdiction:—If the judgment quashing the indictment in this case is “a judgment or verdict of acquittal” on a question of law alone, then the Attorney General had a right of appeal de piano from this judgment to the Appellate Division of the Supreme Court, pursuant to s. 584(1)(a) and, from the judgment of the latter Court dismissing his appeal, he now has a right of appeal de piano to this Court on the question of law on which Kane, J.A., dissented and, with leave of this Court, a right of appeal on any other question of law; the whole, as provided by the relevant parts of s. 598 of the Code, enacting that:

598. (1) Where a judgment of a court of appeal… dismisses an appeal taken pursuant to paragraph (a) of subsection (1) …of section 584, the Attorney General may appeal to the Supreme Court of Canada

(a) on any question of law on which a judge of the court of appeal dissents, or

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(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada…

As to the nature of the judgment of Riley J., I must say, with deference to the opinion expressed by the majority in the Appellate Division, that I am in respectful agreement with the conclusion reached by Kane, J.A. The grounds upon which Riley J. proceeded to maintain the motion to quash are not founded on procedural or technical defects in the indictment, such as duplicity and misjoinder or the omission of an essential allegation. On the contrary, his judgment is predicated on the interpretation he gave to the provisions of s. 103 under which respondent was charged. Thus, in his view, the accused—who, as indicated in the judgment of first instance, was conceded to be an elected municipal official,—could not, as such, be validy charged under these provisions which, properly interpreted, are referable only to an office involved with either the Federal or a Provincial Government.

In my opinion, this case is governed by the decision in Lattoni and Corbo, supra, where this Court unanimously agreed with the Court of Appeal of the province of Quebec, that the judgment quashing the indictment, in that case, was a judgment or verdict of acquittal because it rested upon the ground that criminal proceedings against the accused were prescribed.

The situation in the Kipp case, supra, is quite different. Indeed, as it appears from the reasons of Judson J., who delivered the judgment for the majority, the Court proceeded on the basis that the objection of counsel for the accused was to “the form of the indictment”, and that the indictment was quashed by the County Court judge “on the sole ground that it was void for duplicity”. This Court, having then found the judgment of the County Court judge to be erroneous and having noted that it was common ground that there was no right of appeal from that decision, held that it was proper, in the circumstances, to issue a writ of mandamus directing the County Court judge to proceed with the trial.

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In my view, the judgment of Riley J., is, in essence, tantamount to a judgment rendered in a case tried on the merits and I am clearly of opinion that, were respondent charged subsequently for the same offence as the one embodied in the indictment, a plea of autrefois acquit would Me. Being thus a final judgment or verdict of acquittal resting on a question of law alone, the Attorney General could, as he did, appeal to the Appellate Division and, consequential to the dismissal of his appeal, further appeal to this Court.

I would add that the difficulty on this point appears to have arisen because of a loose use of language. On the view taken by Riley J., the accused should have been acquitted or the charge against him should have been dismissed.

Dealing with the merits of the appeal:—The issue is whether respondent,—who was conceded, in first instance, to be an elected municipal official,—is an official holding an office, within the meaning of s. 103 of Part III of the Code and, as such, subject to the provisions of that section.

The words “official” and “office” are referred to in s. 99, the definition section of Part III, entitled “Offences against the administration of law and justice”, and are defined as follows:

99. In this Part,

(e) “official” means a person who

(i) holds an office, or

(ii) is appointed to discharge a public duty;

* * *

(d) “office” includes

(i) an office or appointment under the government,

(ii) a civil or military commission, and

(iii) a position or employment in a public department;

According to recognized rules of interpretation, the expression “means”, used in s. 99(e) with respect to the word “official”, is of an explanatory and restrictive nature and, in contradistinction, the expression “includes”, used in s. 99(d) with respect to the word “office”, is of an extensive nature. The definition of official in s. 99(e)(i) being, as it is, governed by the definition of office

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in s. 99(d), it follows that an official is a person who holds an office either within the meaning of sub-paragraphs (i), (ii) and (iii) of paragraph (d) of section 99 or within the usual meaning of the word office which, validly ascertainable by reference to dictionaries, means, in part, as noted in the dissent of Kane, J.A., “a position of duty, trust or authority, esp. in the public service or in some corporation, society or the like” (cf. The New Century Dictionary) or “a position to which certain duties are attached, esp. a place of trust, authority or service under constituted authority” (cf. The Shorter Oxford Dictionary).

It goes without saying that the position held by a member of a council of a county is a position of duty, trust or authority in the public service or is a service under constituted authority. Hence, respondent may be held to be an official holding an office, within the meaning of s. 99(e)(i).

A like conclusion obtains on the basis of the text of s. 99(e)(ii), for it is equally obvious that a member of a council of county “is appointed to discharge a public duty”.

In support of the contention that respondent is not an official holding an office, within the meaning of s. 103, under which he was charged, it is argued (a) that the case of a municipal official is dealt with exhaustively in s. 104; (b) that respondent is not an official under s. 99(e)(i), because he is not holding an office within the description of s. 99(d)(i), (ii) and (iii) and that s. 99(d) does not apply to a municipal official; (c) that he is not an official under s. 99(e)(ii), because he is not a person appointed but a person elected to discharge a public duty.

For reasons hereafter stated, I am unable to accept these submissions.

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As to the first:—The fact that a person may, because of an act or omission, be subject to prosecution under two statutory provisions, is not per se a decisive criterion of interpretation of either one. Above all, it must be noted that s. 103 and s. 104 are dealing with two different offences. The former deals with a breach of trust by every official and such an offence is one that may be committed by the action or omission of a single person. The latter deals with municipal corruption and the influencing of municipal officials, which are two offences in respect to which at least two persons must necessarily be concerned. And it may finally be observed that s. 104 makes no reference whatever to a breach of trust simpliciter and it follows that, if respondent’s first contention were entitled to prevail, a municipal official could, in contradistinction with other officials, commit with impunity a breach of trust within the meaning of s. 103.

As to the second submission:—I have already stated my views with regard to the extensive meaning and effect of the word “includes” in s. 99(d), and only wish to make a few comments on the decision of this Court in Belzberg v. The Queen[5]. In that case, the accused was charged, under s. 104, with offering bribes to the Chief Building Inspector for the City of Calgary. Whether such an inspector was a “municipal official”, within the meaning of s. 104(3), was, as stated by Ritchie J., who delivered the judgment of the Court, an issue of which the solution depended on the meaning to be ascribed to the word “office” as used in s. 104(3). In considering the matter, reference was made to s. 99 in the last paragraph of page 258. It is respondent’s contention that what was there said supports the proposition that s. 99(d) does not apply, in a case under s. 103, to an office under a municipal government. It appears to me, from the context of that case, that this reference to the provisions of s. 99 must be confined to the application of subsection (d)(i), (ii) and (iii) of s. 99 to an office under a municipal government within the meaning of s. 104(3) and cannot be extended to

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a case under s. 103 of which the opening words are “every official …”

With respect to the last submission:—It must be recognized that the word “appointed” is often contrasted with the word “elected”. However, in this particular case, I fail to see any reason why this distinction should obtain or to perceive any intent of Parliament to discriminate on the basis of the method by which one accedes to a public office. A like distinction was rejected by this Court in the case of Martineau v. The Queen,[6] where the accused, appointed to the Legislative Council of the province of Quebec pursuant to an order-in-council, was prosecuted under s. 102 (1)(a)(ii)(iii). Relying on the comments made in the first paragraph of page 108, Kane, J.A., rejected, and in my respectful view rightly so, a like distinction made by respondent in this case.

For all these reasons, I would allow the appeal, quash the decision of the Appellate Division of the Supreme Court of Alberta, and direct that the record be returned to the Supreme Court of Alberta in order that the trial judge of that court proceed to try the respondent on the indictment as preferred.

Appeal allowed.

Solicitor for the appellant: R.W. Paisley, Red Deer.

Solicitor for the respondent: A.M. Harradence, Calgary.