Paul v. R., [1960] SCR 452

Supreme Court of Canada

Paul v. R., [1960] S.C.R. 452

Date: 1960-04-11

Charles Paul (Plaintiff) Applicant;

and

Her Majesty The Queen (Defendant) Respondent.

1959: October 7, 8; 1960: April 11.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Appeals—Criminal law—Summary convictions—Leave to appeal—Jurisdiction of Supreme Court of Canada to hear application for leave to appeal from order of Court of Appeal refusing leave to appeal or alternatively from County Court—Whether refusal to grant leave tantamount to dismissal of appeal—The Supreme Court Act, R.S.C. 1952, c. 259, s. 41(1), (3) Criminal Code, 1953-54 (Can.), c. 51, Part XXIV.

[Page 453]

The accused was tried and summarily convicted of impaired driving. The County Court judge dismissed his appeal for want of jurisdiction because the grounds raised in the notice of appeal were insufficiently stated. Leave to appeal to the Court of Appeal for Ontario was refused by that Court, indicating orally that it was bound by its prior decisions with respect to the point decided by the County Court judge in conformity with these decisions. The accused applied for leave to appeal to this Court either from the judgment of the Court of Appeal or alternatively from the judgment of the County Court.

Held (Cartwright, Martland and Ritchie JJ. dissenting): The application for leave to appeal should be dismissed.

Per Taschereau and Abbott JJ.: This Court had no jurisdiction under s. 41(1) or (3) of the Supreme Court Act to entertain the application for leave to appeal. As the Criminal Code does not provide for an appeal to this Court in summary conviction matters, s. 41 is the only one under which leave could be granted. The Court of Appeal did not acquit or convict, set aside or affirm the conviction, but simply refused leave to appeal, there was, therefore, no judgment that could be appealed under s. 41(3). Furthermore, a refusal to grant leave to appeal is not tantamount to a dismissal of the appeal; it is not a disposal of the case on its merits. There was no alternative jurisdiction in s. 41(1) to allow this Court to grant the relief prayed for. In summary matters, jurisdiction to appeal to this Court is found in s. 41(3). The general proposition that matters which are not mentioned in s. 41(3) must be taken to be included in s. 41(1) was ruled out in Goldhar v. The Queen, [1960] S.C.R. 60. Consequently, since no appeal is given under s. 41(3) against a judgment refusing leave, it is not permissible to resort to s. 41(1) which gives an appeal with leave of the Court only from a final or other judgment of the highest Court of final resort in a province in which judgment can be had, but subject to s. 41(3).

Moreover, there was no jurisdiction to grant leave to appeal against the judgment of the County Court judge. Section 41(1) does not say the highest Court of final resort in a province in which judgment “was had” but in which judgment “can be had in the particular case”, which meant, in this case, the Court of Appeal for Ontario.

Per Fauteux, Abbott and Judson JJ.: This Court had not jurisdiction to grant leave to appeal from either the judgment of the Court of Appeal or that of the County Court.

In 1949, by introducing, in s. 41(1), the words “in which judgment can be had in the particular case sought to be appealed”, Parliament indicated that the Court referred to was the highest Court of final resort in the particular case and not generally. There could be only one Court so qualifying in a province. It could not be suggested that the Court of Appeal was not constituted by s. 743(1) of the Code as the highest Court of final resort in the province, in which judgment could be had in this case. The suggestion that the Court of Appeal disqualified itself as such highest Court by refusing leave and thereby qualified the County Court, could not be entertained. Section 41(1) refers to the Court which, under statute and not as a result of the proceedings made thereunder, is the highest Court in the particular case.

[Page 454]

The judgment of the Court of Appeal, which in this case was the highest Court of final resort, was not appealable under s. 41. It was not a judgment determining an appeal but a judgment refusing leave to appeal and as such was not within the terms of s. 41(3). Nor did it come within s. 41(1). The proposition that judgments not within the scope of s. 41(3) were necessarily embraced in s. 41(1) was ruled out in Goldhar v. The Queen, supra.

Per Cartwright, Martland and Ritchie JJ., dissenting: The order sought to be appealed was a “judgment” within the meaning of s. 2 of the Supreme Court Act and had the effect of “affirming a conviction¼ of an offence other than an indictable offence.” That judgment came within the latter words of s. 41(3) and the provisions of s. 41(1) and could be the subject of an appeal to this Court since, in taking the position that as the outcome of the appeal was a foregone conclusion it would serve no useful purpose to grant leave, the Court of Appeal decided the question of law before it on the merits. The circumstances of this case were such as to make the reasoning employed in Lane v. Easdaile, [1891] A.C. 210, inapplicable. It was quite legitimate, in a case such as the present, to raise in the notice of appeal to the County Court the broader issue of whether or not the accused had been wrongly convicted. R. v. Bamsey [1960] S.C.R¼; R. v. Dennis [1960] S.C.R. Leave to appeal to this Court should therefore be granted, the appeal should be allowed, and as s. 46 of the Supreme Court Act is capable of being construed, and in this case should be so construed, as empowering this Court to give the judgment on the merits “that the Court, whose decision appealed against, should have given or awarded”, the case should be remitted to the County Court judge to be heard on appeal by way of trial de novo.

Per Cartwright J., dissenting: Alternatively, on the assumption that the Court of Appeal refused leave to appeal simply in the exercise of its discretion and without having reached a decision as to how it felt itself bound to decide the appeal on the merits, this Court had jurisdiction to grant leave to appeal from the judgment of the County Court Judge.

Section 41(3) does not confer jurisdiction, but excepts certain matters which would otherwise be included in the jurisdiction conferred by s. 41(1). When, in 1949, Parliament for the first time introduced the words “in which judgment can be had in the particular case sought to be appealed to the Supreme Court”, it intended to give to this Court power to grant leave to appeal from the judgment of whatever Court in the Province had become the highest Court of final resort in which judgment could be had in the particular case, regardless of whether that Court was or was not the highest Court of appeal having jurisdiction generally in the Province. In the present case, the judgment of the County Court judge was one affirming a conviction of an offence other than an indictable offence and the leave sought was to appeal from that judgment on a question of law and jurisdiction. There was therefore, under the combined effect of s. 41(1) and s. 41(3) jurisdiction since that judgment became that of the highest Court of final resort in this particular case when the Court of Appeal, as is assumed, in the exercise of its discretion, refused to grant leave. Leave should be granted and the appeal allowed.

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APPLICATION for leave to appeal from refusal of Court of Appeal to hear appeal or alternatively from dismissal of appeal by County Court judge in a summary conviction matter. Application dismissed, Cartwright, Martland and Ritchie JJ. dissenting.

G.D. Finlayson, for the appellant.

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

The judgment of Taschereau and Abbott JJ. was delivered by

TASCHEREAU J.:—The appellant was charged that on or about the third day of October, 1958, at the Town of Brockville in the United Counties of Leeds and Grenville, while his ability to drive a motor-vehicle was impaired by alcohol or a drug, he did unlawfully drive his motor‑car, contrary to s. 223 of the Criminal Code of Canada,

In view of the election which was made by the prosecutor not to proceed under Part 17 of the Criminal Code, the trial was held under Part 24 (Summary Convictions). Magistrate Gordon H. Jermyn found the accused guilty of the said offence, ordered that he be detained in the County gaol at Brockville for the term of three days, ordered him to pay a fine of $100, and prohibited the accused from driving a motor-vehicle on the highway in Canada for a period of six months.

The accused, then, appealed to the County Court Judge, and the reasons for the appeal were the following:

1. That the conviction was against the evidence and the weight of evidence, and contrary to law.

2. That the learned Magistrate applied the wrong standard of care to the facts and circumstances of the alleged infraction.

3. On such further and other grounds as the evidence may disclose and that the Court may permit.

The learned County Court Judge, His Honour Judge Lewis, dismissed the appeal. Without hearing any evidence he declined jurisdiction in view of the Crown’s preliminary objection to the wording used in the Notice of Appeal. His honour held that the grounds set out in cls. 1 and 3 referred

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to were substantially the same as those dealt with in Regina v. Gillespie^[1], and that the second ground of appeal was irrelevant to an appeal from a conviction of driving while impaired. On an application for leave to appeal, the Ontario Court of Appeal refused leave, holding that it was bound by its own decision in Regina v. Souter^[2], and that His Honour Judge Lewis was right in holding that the second clause was inapplicable to an appeal of this nature.

The appellant made an application for leave to appeal to this Court on May 25, 1959, and the judgment of the Court was that this application should be referred to the Court at its sittings in October, 1959, “for disposition in the event that it is held that there is jurisdiction in this Court to grant leave to appeal from an order of the Court of Appeal refusing leave to appeal, or in the event that it is held that there is jurisdiction in this Court to grant leave to appeal, from the decision of the County Court Judge.”

The case was heard by the Court, and the first question which has to be resolved is whether the Supreme Court of Canada has jurisdiction under s. 41(1) or s. 41(3) of the Supreme Court Act to hear the application for leave to appeal.

It is only under s. 41 that such a leave may be granted to the applicant. Subsection (1) of s. 41 reads as follows:

41. (1) Subject to subsection (3), an appeal lies to the Supreme Court with leave of that Court from any final or other judgment 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.

Subsection (3) to which subs. (1) refers is in the following terms:

(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.

As the Criminal Code does not provide for an appeal to this Court in summary conviction matters, it follows that our only authority to grant leave to appeal in the present case, if it exists, must be found in s. 41 of the Supreme Court Act

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Section 41(3) permits an appeal to this Court in summary conviction matters, against a judgment from any court acquitting or convicting, or setting aside or affirming a conviction or acquittal, only on a question of law or jurisdiction. Our powers are strictly limited, and we would exercise a legislative and not a judicial power if we went beyond what Parliament has decided.

The Court of Appeal for Ontario did not acquit or convict, did not set aside or affirm a conviction; it simply refused leave to appeal. There is no judgment that, under the Act, may be appealed from.

It is furthermore my strong view, that a refusal by a Court of Appeal to grant leave to appeal is not tantamount to a dismissal of the appeal. It simply means that the right of appeal which does not exist as of right, but only by leave, never came into being. A judgment on an application for leave to appeal is one judgment, and the disposal of the case on its merits when leave has been granted is another judgment. The refusal by the Court of Appeal to grant leave is not a disposal of the case on its merits.

It has been submitted that if s. 41(3) does not give jurisdiction to this Court to entertain the present application, s. 41(1) of the Act is sufficiently wide in its terms to allow this Court to grant the relief prayed for. In other words, if our jurisdiction in summary conviction matters cannot be found in 41(3), it is open to this Court to find it in 41(1).

With deference, I do not think so. Appeals against convictions or sentence in criminal matters are dealt with in s. 41(3). In matters of indictable offences, it confers no jurisdiction on this Court, and we must find in the Criminal Code the rules that govern such appeals. In summary matters, on the other hand, jurisdiction to appeal to this Court is given in s. 41(3). It was held in Goldhar v. The Queen^[3], that if an appeal from a sentence was not given by 41(3), nor the Criminal Code, we could not find any authority in 41(1) to review a sentence imposed by the Courts below. In that case it was stated by Fauteux J. with whom all the members of the Court agreed, Cartwright J. dissenting, that in order to determine if a convicted person could appeal against a sentence in a matter of indictable offence, it was

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not permissible to look to s. 41(1) for the authority to intervene, but only in the Criminal Code which does not permit an appeal against a sentence.

The general proposition that matters which are not mentioned in 41(3) must be taken to be included in 41(1) has been ruled out in Goldhar, supra. If it were otherwise the result would be that even if not given under 41(3), against a judgment acquitting or convicting, or setting aside or affirming a conviction or acquittal, in indictable offences, an appeal would, nevertheless, lie from a judgment of the Court of Appeal, refusing leave on a mixed question of law and fact, or on a pure question of fact. (Cr. C. 583(a)(2)).

Since no appeal is given under 41(3) against a judgment refusing leave, it is not permissible in my view to resort to s. 41(1) which, as I have said, gives an appeal with leave of the Court only from a final or other judgment of the highest court of final resort in a province in which judgment can be had, but subject to subs. (3) of s. 41.

Moreover, it is contended that if this Court has no jurisdiction to grant leave to appeal from the judgment of the Court of Appeal, it has jurisdiction to grant leave to appeal against the judgment of the County Court Judge. I think that this proposition is untenable. The highest court of final resort in Ontario is the Court of Appeal, which had jurisdiction, and although the matter had been referred to it, declined to entertain the application.

Section 41(1) states clearly that an appeal lies to this Court with leave from any final or other judgment of the highest court of final resort in a province or a judge thereof, in which judgment can be had in the particular case. The section does not say “in which judgment was had”, but “can be had”, which means “can be had” as a matter of law, and the expression “in the particular case” means in the particular class of cases to which the case belongs. If we were to entertain a different view, we would be confronted in this case with a judgment of the Court of Appeal refusing leave to appeal, and a judgment of this Court granting leave to appeal on the same matter. This would amount to a total disregard of the jurisdiction of the Court of Appeal, and the unauthorized bypassing of that tribunal

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Since writing this judgment I had the advantage of considering the reasons of my brother Fauteux with which I entirely agree.

I would refuse the application for leave to appeal. It becomes therefore unnecessary to deal with the other branches of this case.

CARTWRIGHT J. (dissenting):—I agree with the reasons and conclusion of my brother Ritchie and would dispose of the appeal as he proposes.

I wish, however, to state my opinion as to the disposition which should be made of this application on the assumption that the Court of Appeal refused leave to appeal simply in the exercise of its discretion and without having reached a decision as to how it felt itself bound to decide the appeal on the merits.

On this assumption, two questions arise; the first, whether we have jurisdiction to grant leave to appeal to this Court from the refusal of the Court of Appeal to grant the applicant leave to appeal to it from the decision of His Honour Judge Lewis; the second, whether we have jurisdiction to grant the alternative application for leave to appeal to this Court from the judgment of His Honour.

I have reached the conclusion that the second of these questions should be answered in the affirmative and that leave to appeal to this Court from the judgment of His Honour should be granted; consequently I do not find it necessary to answer the first question.

The words of subss. (1) and (3) of s. 41 of the Supreme Court Act are plain and unambiguous. They are as follows:

41. (1) Subject to subsection (3), an appeal lies to the Supreme Court with leave of that Court from any final or other judgment 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.

* * *

(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.

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It will be observed that subs. (3) does not confer jurisdiction. It excepts certain matters which would otherwise be included in the jurisdiction which subs. (1) confers in terms which, when read in the light of the definitions of “judgment” and “final judgment” contained in s. 2, could scarcely be more widely expressed. While it appears to me to be self-evident that it is subs. (1) of s. 41 which confers upon this Court the jurisdiction to grant leave, it may be observed that it was so declared in the unanimous judgment of this Court in Parkes v. The Queen^[4].

In my view, when s. 41 is considered in the light of the history of the legislation defining, restricting and enlarging the jurisdiction of this Court it appears that the intention of Parliament in enacting the section in its present form was to give this Court the widest power in every case, subject only to the limitations imposed by subs. (3) of the section, to permit a litigant, who has exhausted all rights of appeal which are open to him in the provincial courts, to obtain the decision of this Court. No doubt this is a jurisdiction to be exercised with great care but, in my opinion, it ought not to be cut down by judicial decision.

The judgment of His Honour Judge Lewis is one affirming a conviction of an offence other than an indictable offence and the leave sought is to appeal from that judgment on a question of law and jurisdiction. We therefore clearly have jurisdiction under the combined effect of s. 41(1) and s. 41(3) if the judgment of His Honour is that of the highest court of final resort in the Province of Ontario in which judgment can be had in this particular case. When the applicant was convicted by the learned Magistrate he had an appeal as of right to the learned County Court Judge, provided he followed the procedure prescribed in the Criminal Code. When His Honour dismissed the appeal, the applicant had no further appeal as of right; but he could not, at that point, have applied for leave to appeal to this Court under s. 41, as it was then uncertain whether judgment could be had in a higher court in the province. When, however, he had applied for leave to appeal to the Court of Appeal and that Court, as is assumed, had, in the exercise of its discretion, refused to grant leave, it was established

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that in the particular case sought to be appealed to this Court the judgment of His Honour was that of the highest court of final resort in the province in which judgment could be had. It is nihil ad rem to point out that it would have been otherwise if the Court of Appeal had granted leave instead of refusing it. In this particular case that did not happen; and it is on the particular case and not on classes of cases that s. 41(1) concentrates attention.

If there were doubt as to the meaning of the phrase “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”, it would be of assistance to consider the state of the law prior to 1949 when s. 41 was first enacted in substantially its present form by 1949 (2nd Sess.), 13 Geo. VI, c. 37, s. 2.

In International Metal Industries Ltd. v. The Corporation of the City of Toronto^[5], an appeal to this Court was launched from a decision of a judge of the County Court of the County of York, affirming an assessment of the appellant in respect of income for the year 1936. The relevant sections of The Assessment Act, R.S.O. 1927, c. 238, gave a right of appeal to the County Court Judge but provided that no appeal should lie from his decision.

The respondent moved to quash the appeal on the ground that the judgment of the County Court Judge was not a judgment of the highest court of final resort established in the Province of Ontario within the meaning of the Supreme Court Act, R.S.C. 1927, c. 35, ss. 35 to 41, as amended by I Geo VI, c. 42. The appeal was quashed.

At that time s. 37(3) read as follows:

(3) Save as provided by this section, but subject to section forty-four, no appeal shall lie to the Supreme Court except from the highest court of final resort having jurisdiction in the province in which the proceedings were originally instituted.

Duff C.J.C., at page 272, dealt with the point as follows:

In Farquharson v. Imperial Oil Co. Strong C.J. said:

In the case of Danjou v. Marquis, which was an appeal to this court from a judgment of the Court of Review in the Province of Quebec, instituted before the original Act had been amended by the addition of the provision now contained in subsection 3 of section 26, it was held that the words ‘highest court of last resort’ were to be

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construed as meaning the highest Court of Appeal having jurisdiction generally in the province, and not as referring to the highest Court of Appeal in the particular case sought to be appealed; thus excluding jurisdiction in a case in which the court of Review was by provincial legislation made the court of last resort in the province.

The phrase “highest court of last resort” is not distinguishable from the phrase “highest court of final resort” in section 37(3) of the Supreme Court Act as it now stands. The words “whether the judgment or decision in such proceeding was or was not a proper subject of appeal to such highest court of final resort” appearing in the section as it formerly stood were discarded as being surplusage in the amending Act of I Geo. VI, ch. 42, s. 1. Nevertheless, their presence in the section in its earlier form would be sufficient to demonstrate that the words “highest court of final resort in the province” had and have the meaning ascribed to the “highest court of last resort” by Strong C.J. in the passage quoted.

A somewhat similar question arose in Furlan v. City of Montreal^[6], where leave was sought to appeal to this Court from a judgment of Gibsone J. quashing a writ of certiorari. The relevant sections of the Supreme Court Act were in the same form as those considered in the International Metal case, supra. Leave was refused on the ground that the Court had no jurisdiction to grant it.

The unanimous judgment of the Court reads in part as follows, at page 218:

It is contended on behalf of the applicant that it is contemplated by section 36 that an appeal lies from a provincial court of original jurisdiction where, for the purposes of the particular proceeding in question, there is no further appeal. Even if there were any ambiguity in the language of that section (and we think there is not) such ambiguity would be resolved by the express language of section 37, subsection 3. In our opinion all that section 36 does is to make it immaterial whether “the highest court of final resort” has appellate or original jurisdiction, or both. In either event there is to be no appeal except from such highest court and not merely from a court which may be the court of last resort in any particular proceeding.

The question of the jurisdiction of this court in a matter such as this has already been determined adversely to the applicant’s contention by the Privy Council in James Bay Railway Company v. Armstrong. Their Lordships in dealing with a similar argument there said:

Now, unquestionably, the Court of Appeal in Ontario is the highest court of last resort having jurisdiction in the province. The High Court is not. It was argued that in this particular case the High Court becomes ‘the highest court of last resort’ when no appeal lies from it to the Court of Appeal, and it is placed by statute for the purpose in hand on an equal footing with the Court of Appeal. But their Lordships think that that result cannot be attained without

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unduly straining the words of the statute, and that, except in certain specified cases within which the present case does not come, an appeal to the Supreme Court lies only from the Court of Appeal.”

Since the amendment of the Supreme Court Act in 1937, already referred to, this court has decided the same point in a similar sense in International Metal Industries Limited v. The Corporation of the City of Toronto.

It will be observed that in both of these cases and in the case of James Bay Railway v. Armstrong^[7], quoted in the latter case, it had been submitted that an appeal lay to this Court provided that the judgment sought to be appealed was that of the highest court in which judgment could be had in the particular case, and, on the then wording of the Act, this submission was uniformly rejected. This appears particularly from the words, in the quotations above, which I have italicized.

The conclusion appears to me to be inescapable that when in 1949 Parliament for the first time introduced the words which appear in s. 41(1) “in which judgment can be had in the particular case sought to be appealed to the Supreme Court” it did so with the intention of changing the law which had been declared in the cases cited and of giving to this Court power to grant leave to appeal from the judgment of whatever court in the Province has become the highest court of final resort in which judgment can be had in the particular case, regardless of whether that court is or is not the highest court of appeal having jurisdiction generally in the province.

Having concluded that we have the necessary jurisdiction, I would, always on the assumption made above, have granted leave to appeal from the judgment of His Honour Judge Lewis, and would have allowed the appeal on the merits for the reasons given by my brother Ritchie.

It is because one of the bases (the most favourable from the point of view of the Crown) on which the appeal was argued was that the Court of Appeal refused leave simply in the exercise of its judicial discretion that I have examined the question as to how, on that basis, the appeal should be dealt with. In so doing I arrive at the same result as that reached by my brother Ritchie and I rest my judgment on the grounds above set out as well as on the reasons which

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he has given. I wish, however, to make it plain that in the peculiar circumstances of the case before us it is my opinion that the view of my brother Ritchie as to what was done by the Court of Appeal is the right one. We are concerned with substance rather than form.

I would dispose of the appeal as proposed by my brother Ritchie.

The judgment of Fauteux, Abbott and Judson JJ. was delivered by

FAUTEUX J.:—The facts pertaining to the consideration of this case are detailed in the reasons for judgment of other members of the Court and need be stated here only briefly.

An appeal sought by Paul to the County Court from a conviction under Part XXIV of the Criminal Code was dismissed for want of jurisdiction, the grounds raised in the notice of appeal being considered insufficiently stated. Leave to appeal from that judgment to the Court of Appeal for Ontario was sought but refused, the members of the Court indicating orally that the Court was bound by its prior decisions with respect to the point decided by the County Court in conformity with these decisions. An application was then made for leave to appeal to this Court, either from the judgment of the Court of Appeal or alternatively from the judgment of the County Court. This application, allegedly made under s. 41 of the Supreme Court Act, was, upon first being considered, referred to the Bench hearing appeals on the merits, for disposition of the appeal itself in the event that our jurisdiction to grant leave from either the judgment of the Court of Appeal or that of the County Court, should be found to exist.

The primary question is that of our jurisdiction. The relevant parts of s. 41 read as follows:

41. (1) Subject to subsection (3), an appeal lies to the Supreme Court with leave of that Court from any final or other judgment 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.

(2) Leave to appeal under this section may be granted during the period fixed by section 64 or within thirty days thereafter or within such further extended time as the Supreme Court or a judge may either before or after the expiry of the said thirty days fix or allow.

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(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.

The judgment from which an appeal may lie with leave under s. 41(1) is the judgment of the highest court of final resort in a province,¼, in which judgment can be had in the particular case. That there can be only one Court in a province qualifying as “the highest court of final resort¼in which judgment can be had in the particular case”, and that the identification of such a Court, in any particular case, can only be ascertained by reference to the Act or Acts relevant to the case under consideration, goes without saying. Depending upon the law governing in the particular case, that highest Court of final resort in a province may be the Court of Appeal or may be a Court of lower jurisdiction if the judgment of the latter Court is not appealable to another Court in the province. In a criminal matter such as the one here involved, the Criminal Code governs and s. 743(1) thereof gives an appeal with leave to the Court of Appeal of the province. No one suggests that the Court of Appeal is not constituted by that section the highest Court of final resort in the province, in which judgment can be had in this case. However, it is said that the dismissal, by the Court of Appeal, of the motion for leave to appeal, had two consequences: it disqualified the Court of Appeal as the highest Court of final resort in the province and qualified the County Court as such. Thus, and on this view of the matter, the nature of the judgment rendered in this case by the highest Court of final resort, the Court of Appeal, becomes the determining factor of the question. With deference, I am unable to agree with this suggestion. The true test, in my opinion, is not one of result, i.e. the actual fate of the proceedings legally taken before the Court of Appeal, but whether the Court of Appeal is, in this case, the highest Court of final resort in the province, in which these proceedings could be taken.

The cases of International Metal Industries Limited v. The Corporation of the City of Toronto^[8], Furlan v. City of Montreal^[9], as well as the authorities quoted therein, and the

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law under which they were decided as well as the subsequent amendment thereto have been considered but, in my view, supply no support for the proposition advanced for the appellant. When the above cases were decided, the relevant law was contained in s. 37(3) reading as follows:

(3) Save as provided by this section, but subject to s. 44, no appeal shall lie to the Supreme Court except from the highest court of final resort having jurisdiction in the province in which the proceedings were originally instituted.

What these cases decided is that the highest Court of final resort referred to in this section was the Court which is generally, and not in a particular case, the highest Court of final resort in the province, i.e. the Court of Appeal. By introducing, in 1949, the following words in s. 41(1) “in which judgment can be had in the particular case sought to be appealed to the Supreme Court”, Parliament indicated that the Court referred to in this amendment was the highest Court of final resort in the particular case and not generally.

Section 41(1) refers to the Court which, under statute and not as a result of the proceedings made thereunder, is the highest Court of final resort in the province in the particular case.

With deference, the suggestion that the County Court must, from the date of the dismissal by the Court of Appeal of the motion for leave to appeal be considered in this case as the highest Court of final resort brings a rather novel situation in appellate proceedings. For on the view that the judgment of the County Court is the judgment to be appealed to this Court, the delays within which proceedings in appeal to this Court are to be made, must, by force of s. 41(2) and s. 64 of the Supreme Court Act, be computed from the date of the signing or entry or pronouncing of the judgment of the County Court. Thus time for the exercise of the right of appeal begins to run while this conditional right does not yet exist and while it is still problematical whether it will ever exist.

Agreeing as I do that the highest Court of final resort in the province, in this particular case, is the Court of Appeal, the next point to consider is whether the judgment of that Court, which is here sought to be appealed, is appealable under s. 41.

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As pointed out by our brother Taschereau, the judgment of the Court of Appeal is not a judgment determining an appeal but a judgment refusing leave to appeal and as such not within the terms of s. 41(3). The question is then whether it comes within s. 41(1). The proposition that judgments which are not within the scope of s. 41(3) are necessarily embraced in s. 41(1) has been ruled out in the Goldhar case^[10], where a strict adherence to the rule of literal construction of s. 41 was, in the matter, shown to lead to repugnancy. Such a result would equally obtain if the judgment refusing leave to appeal, in this case, was held to come within s. 41(1). For on the same reasoning, one would have to hold that, for indictable offences, s. 41(1) authorizes an appeal to this Court from a judgment of the Court of Appeal refusing leave to appeal to its Court from the verdict or judgment of first instance on grounds of mixed law and facts or pure facts. Such a jurisdiction would be inconsistent with the limitation of our jurisdiction to pure questions of law in criminal appeals from convictions or acquittals of offences.

For all these reasons, I agree that this appeal should be dismissed for want of jurisdiction.

The judgment of Martland and Ritchie JJ. was delivered by

RITCHIE J. (dissenting):—The applicant in this case, having been charged with driving a motor vehicle while his ability to do so was impaired, was proceeded against by way of summary conviction before Magistrate Gordon M. Jermyn, and having been arraigned and pleaded “not guilty” he was tried, convicted and sentenced to be imprisoned for three days and to pay a fine of $100 together with costs and also to be prohibited from driving a motor vehicle on the highway in Canada for six months from the date of conviction. From this conviction the applicant gave Notice of Appeal to the County Court of the United Counties of Leeds and Grenville setting forth therein the following grounds of appeal:

1. That the conviction was against the evidence and the weight of evidence and contrary to law.

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2. That the learned magistrate applied the wrong standard of care to the facts and circumstances of the alleged infraction.

3. On such further and other grounds as the evidence may disclose and this court doth permit.

At the hearing in the County Court, objection was taken by counsel for the Crown that these grounds of appeal were not sufficient to comply with s. 722(1) (a) (i) of the Criminal Code, and that the County Court, therefore, had no jurisdiction to hear the appeal. After hearing argument of counsel, the learned County Court judge delivered reasons for judgment in which he made reference to the cases of Regina v. Souter^[11], Regina v. Wisnoski^[12] and Regina v. Gillespie^[13], and concluded by saying,

I find that the preliminary objection is well taken and on the preliminary objection I must dismiss the appeal for want of jurisdiction.

From this decision the applicant gave Notice of Application for Leave to Appeal to the Court of Appeal for Ontario upon the grounds following:

1. The learned County Court judge on appeal erred in finding that there were not sufficient grounds set forth in my Notice of Appeal to comply with s. 722 of the Criminal Code.

2. The learned County Court judge on appeal erred in finding that he had no jurisdiction to hear the said appeal by way of trial de novo.

The order of the Court of Appeal for Ontario, made on the return of this notice, directed “that leave to appeal should be and the same was thereby refused”. Although no written reasons were given for this decision, an affidavit has been filed by the solicitor for the applicant as a part of the appeal case before this Court in which he states that

I am advised by counsel who appeared on his (Paul’s) behalf and verily believe that leave to appeal was refused without written reasons being given on the grounds that the court felt it was bound by its previous decision in Regina v. Souter (1959) O.W.N. 40.

As will hereafter appear, this statement of fact is not disputed by counsel for the respondent.

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Application for leave to appeal from the judgment of the Court of Appeal for Ontario or alternatively from the said County Court was made to this Court on May 25, 1959, upon 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 Lewis, to comply with s. 722 of the Criminal Code?

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

and in the alternative, upon the following questions of law and jurisdiction:

1. Was the learned County Court judge on appeal right in holding that there were not sufficient grounds set forth in the Notice of Appeal to comply with s. 722 of the Criminal Code?

2. Was the learned County Court judge on appeal right in holding that he had jurisdiction to hear the said appeal by way of trial de novo?

On June 25, 1959, by order of this Court, the above applications for leave to appeal were adjourned to the sittings of the Court commencing in October 1959, and it was further ordered that these applications be

referred to this Court at its sittings in October 1959 for disposition in the event that it is held that there is jurisdiction in this Court to grant leave to appeal from an order of the Court of Appeal refusing leave to appeal or in the event that it is held that there is jurisdiction in this Court to grant leave to appeal from the decision of the County Court judge.

Sections 41(1) and 41(3) of the Supreme Court Act, pursuant to the provisions of which leave to appeal is now sought, read as follows:

41. (1) Subject to subsection (3), an appeal lies to the Supreme Court with leave of that Court from any final or other judgment 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.

* * *

(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.

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“Judgment” is defined by s. 2(d) of the Supreme Court Act as follows:

“judgment,” when used with reference to the court appealed from, includes any judgment, rule, order, decision, decree, decretal order or sentence thereof; and when used with reference to the Supreme Court, includes any judgment or order of that Court;

I am of opinion that the order sought to be appealed from in this case is a “judgment” within the meaning of s. 2(d) of the Supreme Court Act and that it has the effect of “affirming a conviction¼ of an offence other than an indictable offence”. If it can also be said that the judgment is one “in respect of a question of law” and that it constitutes a determination of the merits of the questions raised by the Notice of Application for Leave to Appeal, then I am of the opinion that it comes within the latter words of s. 41(3) and the provisions of s. 41(1) of the Supreme Court Act and can be made the subject of an appeal to this Court if it is considered an appropriate case in which to grant leave so to appeal.

Section 743 of the Criminal Code provides in part as follows:

743. (1) An appeal to the court of appeal, as defined in section 581, may, with leave of that court, be taken on any ground that involves a question of law alone, against

(a) a decision of a court in respect of an appeal under section 727¼

In my opinion this section confers on the Court of Appeal a discretionary power to determine whether or not leave should be granted by that court in such a case as the present, and if it could be said that leave had been refused in this case simply in the exercise of that discretion then different considerations would apply. In the present case, however, it has been made to appear in this Court to my satisfaction that the learned judges of the Court of Appeal took the position that they were required to decide the questions of law sought to be raised by the application for leave to appeal adversely to the applicant in accordance with the earlier

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decision of that court in Regina v. Souter, supra, and that as the outcome of the appeal was a foregone conclusion it would serve no useful purpose to grant leave for it to be heard.

In taking this position the Court of Appeal, in my opinion, decided the question of law raised before it on the merits and reached the same conclusion for the same reasons as it would have done if leave had been granted. The fact that formal expression was given to this decision by the granting of an order refusing leave to appeal does not detract from the result which is that for all practical purposes the merits of the appeal have been heard and determined. The Criminal Appeal Rules applicable in the Province of Ontario in such cases and to which further reference will hereafter be made provide that on an application for leave to appeal to the Court of Appeal for Ontario, if that court

is of opinion that leave should be granted, the court may thereupon and without further delay hear the appeal upon its merits (Rule 19).

As has been said, the effect of the order granted in the present case was to dispose of the merits of the appeal without having granted leave, and I am of opinion that in a proper case leave should be granted to appeal to this Court from such an order. In the present case the order from which leave to appeal is sought is based on an earlier decision of the Court of Appeal for Ontario (Regina v. Souter, supra) which is at variance with decisions of some courts of other provinces and indeed somewhat difficult to reconcile with another decision of the same court to the opposite effect (R. v. Kuusela^[14]) and it cannot be overlooked that the liberty of the applicant is involved in these proceedings.

It is true that in this case we are deprived of the benefit of having any written or recorded reasons of the Court of Appeal before us and that the formal record of the decision of its learned members is limited to the certificate of the Assistant Registrar of that Court which reads:

This Court did order that leave to appeal should be and the same was thereby refused.

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However, we have been furnished not only with the affidavit of the applicant’s solicitor which is referred to above but also with the following statement in the factum filed on behalf of the Attorney-General for Ontario whose representative appeared for the respondent herein:

The issue is whether the Court of Appeal was right or wrong in refusing leave. In the present case the position of the Court of Appeal was that the point in issue had already been decided by it and that the appeal, if leave were granted, must inevitably be dismissed. Therefore, to grant leave would serve no useful purpose. In refusing leave, the Court of Appeal followed the principle enunciated by Chief Justice Duff in Laing v. The Toronto General Trusts, (1941) S.C.R. 32 dealing with a motion to quash an appeal, at p. 34:

“And it is also the settled course of this court that when on a motion to quash it plainly appears to the court that the appeal is one, which, if it came on in the ordinary way, must be dismissed, the court will on that ground quash the appeal.” (The italics are mine.)

It has been very forcefully argued on behalf of the respondent that it would be inappropriate for this Court to grant leave to appeal from an order which takes the form of a refusal to grant leave by the Court of Appeal, and it was argued that the reasoning contained in the judgment of Lord Halsbury in Lane v. Esdaile^[15], applied to the present circumstances and that the granting of such leave by this Court would defeat the very purpose of requiring leave to be granted by the Court of Appeal before asserting an appeal under s. 743 of the Criminal Code and that it would open the way to appeals being heard in this Court from the refusal of a provincial Court of Appeal to grant leave to appeal on questions of fact and of mixed fact and law in cases of indictable offences sought to be appealed under s. 583(a) (ii) of the Criminal Code which latter result was never intended by the legislature.

In my view the circumstances of this case are such as to make the reasoning employed in Lane v. Esdaile, supra, and the above arguments which are based, in part thereon, inapplicable. In that case what was decided by the House of Lords was that where the Court of Appeal had exercised its discretion by refusing to grant leave to appeal after the time limited therefor had expired, its decision was not susceptible of further appeal under the provisions of the Appellate

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Jurisdiction Act, 1876. It will be noted that the decision of the Court of Appeal there under consideration did not turn on the merits of the case which were overwhelmingly in the appellant’s favour but rather on the ground that

if people have deliberately elected to let the time for appealing go by, the Court should not give them leave to appeal without special circumstances. (Per Lindley L.J. in Esdaile v. Payne, 40 Ch. D. 520 at 535.)

In the present case, as has been said, although the order from which leave to appeal is now sought is in form simply an order refusing leave to appeal to the Court of Appeal, it is apparent from what has been said by both counsel that the merits of the questions raised were considered and found wanting because the learned judges of the Court of Appeal felt that the decision of that court in Regina v. Souter, supra, governed the circumstances. There would have been no difference in principle if the learned judges of the Court of Appeal had treated the questions as being governed by their view of some general principle of law. That such a decision is not one made in the exercise of judicial discretion is clear from what was said by Cannon J. in Glesby v. Mitchell^[16], where the question was whether an order of a provincial Court of Appeal directing a new trial was made in the exercise of the discretion of that court, and Cannon J. said:

These two learned judges exercised not a discretion but considered themselves bound by their previous decision and their interpretation of certain rules of law.

As has been indicated, I would grant leave to appeal to this Court in the present case, but it should be clearly understood that this decision is strictly confined to the circumstances here disclosed and is based on the assumption that the Court of Appeal dealt with and disposed of the merits of the questions of law raised before it on the application for leave to appeal to that court as fully and effectually and for the same reasons and with the same result as they would have done if leave to appeal had been granted. The granting of this application is not to be construed as a review of the discretion vested in the Court of Appeal by s. 743 of the Criminal Code and can have no bearing on the right of the Court of Appeal to refuse leave to appeal in indictable

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offence cases under s. 583(a) (ii) because what is at issue here is a question of law and cases sought to be appealed under that section are concerned with fact or mixed fact and law. Nor can it be said that the considerations governing this case could apply to an application for leave to appeal to this Court from an order granting leave to appeal to the Court of Appeal because the effect of such an order can only be to pave the way for the questions of law to be decided on the hearing, and such an order cannot, therefore, have the effect of determining the merits of the appeal.

The real question of law raised by the grounds upon which leave is now sought is whether or not the grounds set forth in the Notice of Appeal from the summary conviction court were sufficient to comply with s. 722 of the Criminal Code and to clothe the County Court judge with jurisdiction to hear the appeal by way of trial de novo.

As will be seen from what has been said in the cases of Regina v. Harry P. Bamsey^[17] and Regina v. Raymond John Dennis^[18], I take the view that the provisions of s. 720 of the Criminal Code accord a right of appeal to any “defendant in proceedings under this Part (Part XXIV)” provided that s. 722 is complied with, and I am further of opinion that the grounds of appeal referred to in s. 722(a) (ii) are not required to be set forth with the same particularity as in appeals in indictable offences.

An appeal to the Court of Appeal in the case of an indictable offence is, except in a restricted number of cases, largely based upon the record of what has taken place in the court below and the grounds of appeal in such cases are, generally speaking, concerned with specific errors which are alleged to have occurred in the conduct of the trial. As the decision of the Court of Appeal is likely to turn on whether or not the errors so alleged justify the quashing of the conviction or the granting of a new trial, it is, of course, necessary that the grounds set forth in the Notice of Appeal should detail the errors upon which reliance is to be placed in such manner as to inform the respondent of the issues to be met on the appeal and to afford him an opportunity to prepare his case accordingly.

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In the case of an appeal by way of trial de novo under s. 727 the Appeal Court is not in the least concerned with specific errors in the conduct of the first trial for the very good reason that its decision must be based upon the evidence introduced at the second one, and, accordingly, it is, in my opinion, quite legitimate, in a case such as the present, for the Notice of Appeal under s. 722 to confine itself to raising the broader issue of whether or not the accused has been wrongly acquitted or convicted. I venture to say that the realities of the situation in such cases very often are that an accused who considers himself to have been wrongly convicted is simply launching his appeal in the hope that another judge may take a different view of the evidence from that taken by the magistrate who convicted him, and as I consider that an accused is entitled to do this under the provisions of ss. 722 to 727 of the Criminal Code I am of opinion that by saying “that the conviction was against the evidence and the weight of evidence and contrary to law” the applicant in this case has sufficiently designated the grounds upon which he seeks relief.

Notwithstanding the above, I am far from being of opinion that the statement of grounds required by s. 722 is a mere empty formality. As will appear from what has been said in the case of Regina v. Bamsey, supra, I consider that grounds which are obviously irrelevant, frivolous or irreconcilable with the record of the plea in the court below are unacceptable and that if the ground of appeal is that the accused wrongly or mistakenly pleaded guilty in the court below, the reasons which he proposes to urge for being allowed to change his plea in the Appeal Court should be set forth in the Notice of Appeal. I am also of opinion that if the appeal is based upon questions of law, those questions should also be set out in the Notice of Appeal and it is not enough for the applicant to simply say that the conviction was “contrary to law”.

An example of a ground of appeal which does not meet the requirements of s. 722 because of irrelevance is afforded by the second ground set forth in the applicants Notice of Appeal from the summary conviction court in this case. By that ground the applicant alleged that the magistrate

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“applied the wrong standard of care to the facts and circumstances of the alleged infraction” and as it was not “standard of care” but “degree of intoxication” which was at issue before the magistrate, this ground is bad on its face, not because it is lacking in particularity but because it is meaningless in the context in which it is employed.

It will be seen from the above that I do not agree with the decision of the Court of Appeal for Ontario in Regina v. Souter, supra, and that I am of opinion that the first ground of appeal set forth in the Notice of Appeal to the County Court in this case was effective to clothe the County Court judge with jurisdiction to hear the appeal by way of trial de novo.

The appeal should, therefore, be allowed, but there remains to be considered the question of what order this Court is entitled to grant in the circumstances.

The Criminal Appeal Rules applicable in the Province of Ontario in such cases (see ss. 586 and 743 of the Criminal Code) include the following:

RULE 19:

Where upon an application for leave to appeal the court is of the opinion that leave should be granted, the court may thereupon and without further delay hear the appeal upon its merits or may, if it sees fit, direct the case to be placed upon the list for hearing at such future time as the court may determine.

Section 46 of the Supreme Court Act provides that:

The Court may dismiss an appeal or give the judgment and award the process or other proceedings that the court, whose decision is appealed against, should have given or awarded.

Without having any further material before it and without it being necessary for the applicant to file a Notice of Appeal, the Court of Appeal in the present case could, and in my opinion should, have heard and allowed the appeal on its merits and the judgment which should have been given was to order the case to be remitted to the County Court.

What has been said by counsel enables me to conclude that what in fact happened was that the Court of Appeal reached a decision upon the merits of the appeal, and although its judgment took the form of an order refusing leave to appeal it was in fact a judgment on the merits. I

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am of opinion that s. 46 of the Supreme Court Act is capable of being construed and on the particular facts of this case should be construed as empowering this Court to give the judgment on the merits “that the court, whose decision is appealed against, should have given or awarded”.

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

Application for leave to appeal dismissed, CARTWRIGHT, MARTLAND and RITCHIE JJ. dissenting.

Solicitors for the applicant: Stewart, Corbett & Musclow, Brockville.

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