Hipkin and Jacobs v. R., [1961] SCR 608

Supreme Court of Canada

Hipkin and Jacobs v. R., [1961] S.C.R. 608

Date: 1961-06-26

Geoffrey Hipkin (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

John Fabian Jacobs (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1961: June 9, 26.

Present: Kerwin C.J. and Taschereau, Locke, Cartwright, Fauteux, Abbott, Martland, Judson and Ritchie JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Summary conviction—Careless driving—Whether grounds of appeal to County Court within requirements of s. 722(1) (a) of the Criminal Code—The Summary Convictions Act, R.S.O. 1950, c. 379, s. 3—The Criminal Code, 1953-54 (Can.) c. 51, ss. 719 to 739.

The two accused were convicted of careless driving contrary to s. 21(1) of The Highway Traffic Act. Both appealed to the County Court on the grounds, inter alia, that (i) the magistrate erroneously convicted the accused of the offence and (ii) the conviction was contrary to law, the evidence and the weight of evidence. The County Court dismissed the appeals on the preliminary objection that no proper grounds were set out in the notice of appeal. The Court of Appeal gave no reasons for its orders dismissing the appeals from these judgments. The accused were granted leave to appeal to this Court.

Held: The appeals should be allowed, and the cases remitted to the County Court judge to be heard by way of trial de novo.

Per Kerwin C.J. and Taschereau, Locke, Cartwright, Abbott, Martland, Judson and Ritchie JJ.: The grounds set forth in the notice of appeal were sufficient to clothe the County Court with jurisdiction to hear the appeals. Because the appeal under Part XXIV for which provision is made by s. 727 is by way of trial de novo, the grounds do not have to be stated with the same particularity as those required in a notice of appeal to the Court of Appeal in appeals from trials of indictable offences. It is enough that such a notice evidences the appellant’s sincerity of purpose in asserting his appeal for the reason that he genuinely believes that he has been wrongly convicted and this excludes grounds which are obviously irrelevant, frivolous or irreconciliable with the plea in the Court below or with the other material before the Court. Under s. 727 the appellant is not to be confined by being required to designate in advance the specific issues to be raised at the second trial.

Per Fauteux J.: The ground that the “conviction was contrary to law, the evidence and the weight of evidence” met the requirements of s. 722(1) (a) of the Criminal Code.

[Page 609]

APPEALS from two judgments of the Court of Appeal for Ontario, dismissing the appeals from two judgments of the County Court for the County of Peel. Appeals allowed.

S.J.G. Lane, for the appellants.

W.C. Bowman, Q.C., for the respondent.

The judgment of Kerwin C.J. and of Taschereau, Locke, Cartwright, Abbott, Martland, Judson and Ritchie JJ. was delivered by

RITCHIE J.:—By order of this Court dated January 24, 1961, leave to appeal was granted to these two appellants from two judgments of the Court of Appeal of Ontario dismissing their appeals from the County Court for the County of Peel whereby it was decided that the grounds of appeal set forth in the appellants’ notices of appeal from their respective convictions by different magistrates did not comply with the requirements of s. 722(1) (a) of the Criminal Code. Leave was also granted to file a single factum with respect to both appeals and the appeals were heard together.

Each of the appellants was convicted for unlawfully driving his automobile carelessly contrary to s. 21(1) of The Highway Traffic Act, and each appealed to the County Court of the County of Peel on the same ground, namely:

(1) That the magistrate erroneously convicted the appellant of the offence aforesaid;

(2) That the said conviction was contrary to law, the evidence and the weight of evidence;

(3) Upon such other grounds as counsel may be permitted to address the Court upon the hearing of the appeal.

In both cases preliminary objection was taken by counsel for the respondent before the County Court that no proper grounds were set out in the Notice of Appeal, and in dismissing the appeals for this reason the County Court judge appears to have followed the decision of the Court of Appeal of Ontario in the case of Regina v. Souter[1], as opposed to the decision of that Court in Regina v. Kuusela[2]. After referring to the fact that the Court of Appeal of Ontario had

[Page 610]

characterized the grounds of appeal set forth in the Kuusela case, supra, as “the bare minimum”, the learned County Court judge goes on to say:

The grounds set out in the case before me fall far short of this bare minimum, in that it simply states that the Magistrate erroneously convicted the Appellant of the offence. It does not refer to any of his findings that would lead to such a conviction and it provides little, if any, difference from the form of Notice set out in the Souter or Gillespie cases, and upon this ground I must dismiss the Appeal.

This decision was rendered in the case of Jacobs, but the Hipkin appeal was dismissed for the same reasons. The Court of Appeal gave no reasons for its orders dismissing the appeals from these judgments.

The applications for leave to appeal in these cases raise the following questions of law and jurisdiction:

(1) Was the Court of Appeal for Ontario right in holding that there were not sufficient grounds set forth in the Notice of Appeal before His Honour, Judge R. Stewart Clark, to comply with Section 722 of the Criminal Code?

(2) Was the Court of Appeal for Ontario right in holding that His Honour, Judge R. Stewart Clark, on appeal, had no jurisdiction to hear the said appeal by way of trial de novo?

By virtue of the provisions of s. 3 of the Summary Convictions Act, R.S.O. 1950, c. 379, these are cases to which Part XXIV of the Criminal Code applies, and the appeals to the County Court judge were, therefore, governed by ss. 719 to 739 of the Criminal Code.

The right of appeal from the magistrate to the County Court is accorded by s. 720, the relevant portions of which are as follows:

720. Except where otherwise provided by law,

(a) the defendant in proceedings under this Part may appeal to the appeal court

(i) from a conviction or order made against him, or

(ii) against a sentence passed upon him;…

This right is limited only by the necessity of complying with the provisions of s. 722 wherein the requisite notice of appeal is described as:

722. (a)… a notice of appeal in writing setting forth

(i) with reasonable certainty the conviction or order appealed from or the sentence appealed against, and

(ii) the grounds of appeal;…

[Page 611]

As the setting forth of the grounds of appeal in such a notice forms a part of the foundation upon which the jurisdiction of the County Court rests, it follows that a notice which states no grounds at all cannot form the basis of an appeal, but because the appeal under Part XXIV for which provision is made by s. 727 is by way of trial de novo the grounds do not have to be stated with the same particularity as those required in a notice of appeal to the Court of Appeal in appeals from trials of indictable offences.

In the vast majority of appeals from trials of indictable offences the Court of Appeal is required to decide the issue before it on the sole basis of the record of the proceedings at a trial which has been concluded before the notice of appeal is prepared, whereas in appeals taken pursuant to s. 727 the trial upon which the Appeal Court must base its decision cannot commence until after the notice of appeal has been filed and served. It follows that in the former cases the errors at the trial which are alleged as grounds for the appeal must be specified in such manner as to inform the respondent of the issues to be met in the Court of Appeal, but in the latter case as the appeal is by way of a new hearing and the Appeal Court is not concerned with specific errors in the conduct of the first trial, the notice of appeal takes on an altogether different character. In my view it is enough that such a notice evidences the appellant’s sincerity of purpose in asserting his appeal for the reason that he genuinely believes that he has been wrongly convicted and this requirement of necessity excludes notices of appeal in which the grounds are obviously irrelevant, frivolous or irreconcilable with the plea in the Court below or with the other material to be kept by the clerk of the Appeal Court with the records of the Court in accordance with s. 726(1). See Regina v. Bamsey[3].

In conformity with this view, I am of opinion that the grounds set forth in the present notices of appeal are sufficient to clothe the County Court with jurisdiction to hear these appeals.

In the case of Regina v. Souter, supra, the Court of Appeal of Ontario held that the allegation “that the conviction was contrary to law, the evidence and the weight of evidence” was not a ground of appeal at all within the

[Page 612]

meaning of s. 722 of the Criminal Code, and in so doing followed the decision of the County Court judge for Victoria County, British Columbia, in Regina v. Gillespie[4]. In the course of rendering the decision of the Court of Appeal of Ontario[5], Porter C.J.O. said of s. 722:

I think that the section contemplated that grounds sufficiently definite to indicate the issues to be raised on the trial de novo should be set forth in the notice of appeal. Here there were no such grounds given.

With the greatest respect, it seems to me to be one of the characteristics of an appeal under s. 727 that many “issues to be raised on the trial de novo” must arise as the evidence develops in the course of that trial and that the appellant is not to be confined by being required to designate in advance the specific issues to be raised at the second trial.

In the case of Regina v. Kuusela, supra, which was decided by the Court of Appeal of Ontario after Regina v. Souter, supra, that Court held that the appellant had stated grounds which were “sufficient within the meaning of the statute” when he alleged that:

The learned magistrate erred on the facts and law in finding that the said William Kuusela drove his motor vehicle while his ability to drive the same was impaired by the use of alcohol.

In the course of rendering the decision of the Court of Appeal in this case, Porter C.J.O. said at[6]:

It may be that if it were intended to raise any questions such as the admissibility of certain evidence before the Magistrate or any technical matters that the notice should properly set forth such grounds specifically. Here, however, it would appear that the issues would be confined to the question of impairment while driving.

This passage, when read in conjunction with the decision in Regina v. Souter, supra, appears to me to indicate that the Court of Appeal of Ontario was of opinion that a “question as to the admissibility of certain evidence before the Magistrate” could be an issue at the trial de novo, whereas, with the greatest respect, I take the view that the only evidence upon which the Appeal Court judge can base his decision is the evidence introduced before him either directly or pursuant to s. 727(2), and the fact that evidence may have been wrongly admitted by the magistrate cannot be

[Page 613]

an issue at the trial de novo because the judge of the Appeal Court has control of what evidence is or is not to be admitted before him. See Regina v. Dennis[7]. No matter how grave or prejudicial the magistrate’s errors may be in taking the evidence at the initial trial, they do not entitle an appellant to a favourable decision in the Appeal Court. Such errors afford good ground for the appellant believing that he was wrongly convicted but they form no part of the material upon which the appeal is to be decided.

In my view these considerations make it apparent that the main function of the notice of appeal required by s. 722 is to provide evidence of the appellant’s sincerity of purpose in asserting his appeal rather than to indicate the specific issues to be raised at the second trial although when the appellant is seeking to change his plea or to raise pure questions of law apart from the evidence before the Appeal Court, it is desirable that the notice of appeal should be in such form as to make the respondent aware of the reasons to be urged in support of the change of plea or the nature of the legal points which are to be raised.

As I have indicated, I am of opinion that, subject to the limitations above referred to, it is quite legitimate in cases such as the present for the notice of appeal to confine itself to raising the broad issue of whether or not the accused has been wrongly convicted and that sufficient grounds were set forth in the notices of appeal before His Honour, Judge R. Stewart Clark, to comply with s. 722 of the Criminal Code and to clothe the said judge with jurisdiction to hear the said appeals by way of trial de novo.

I would accordingly allow the appeals, set aside the orders of the Court of Appeal and the County Court judge and remit the cases to the County Court judge to be heard by way of trial de novo.

FAUTEUX J.:—Being of opinion that the notice of appeal, to the County Court of the County of Peel, met the requirements of s. 722(1) (a) of the Criminal Code in setting as a ground of appeal in each case:

That the said conviction was contrary to law, the evidence and the weight of evidence

[Page 614]

I would dispose of the appeals to this Court as proposed by our brother Ritchie.

Appeals allowed.

Solicitors for the appellants: Jackson, Van Every, Watson, Gillespie & Lane, Port Credit.

Solicitor for the respondent: The Attorney-General for Ontario, Toronto.