Supreme Court of Canada
Dennis v. The Queen, [1958] S.C.R.
473
Date: 1958-06-26
Vern Glen
Dennis Appellant;
and
Her Majesty
The Queen Respondent.
1958: May 7; 1958: June 26.
Present: Kerwin C.J. and
Taschereau, Locke, Fauteux and Martland JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR BRITISH COLUMBIA
Criminal law—Summary
convictions—Parties to proceedings—Appeal—Service of notice of appeal—Who is
"respondent"—Information laid by police officer—Service on
informant's superior—The Criminal Code, 1958—54 (Can.), c. 51, s. 722.
The appellant was convicted by a magistrate on an information
laid by a constable of the Royal Canadian Mounted Police. He served a notice of
appeal from his conviction on the corporal in charge of the detachment to which
the informant was attached. The County Court Judge dismissed the appeal for
want of jurisdiction because the notice of appeal had not been served on the
informant. This judgment was affirmed by the Court of Appeal. A further appeal
was taken by leave.
Held (Kerwin C.J. and Martland J. dissenting): The
appeal should be dismissed.
Per Taschereau, Locke and Fauteux JJ.: In proceedings
under Part XXIV of the Criminal Code, at least if the Attorney General
does not intervene, the parties to the proceedings are the informant and the
accused. If the accused, having been convicted, appeals, the
"respondent" on whom the notice of appeal must be served under s.
722(1) (b) (ii) is the informant. Section 722(3) makes it clear by
implication that the informant may be a person other than one engaged in
enforcement of the law, but it also makes it clear that, unless an order is
obtained from the appeal Court, the notice of appeal must be served on the
informant personally. The fact that the informant in laying the information
describes himself as doing so "on behalf of Her Majesty the Queen"
does not change the position, nor does the style given to the proceedings
before the magistrate and the County Court Judge.
Per Kerwin C.J. and Martland J., dissenting: The
"respondent" mentioned in s. 722(1) (b) (ii) is not
necessarily in all cases the person who laid the information. Where, as in the
present case, the information is laid by a police officer, the Crown is in name
and substance the respondent, and service of the notice of appeal on the informant's
superior officer is sufficient service within the meaning of the subsection.
APPEAL from a judgment of the
Court of Appeal for British Columbia, dismissing an appeal from a judgment of Fraser Co.
Ct. J. Appeal dismissed, Kerwin C.J. and Martland J. dissenting.
E. Patrick Hartt, for the
appellant.
Lee A. Kelley, Q.C., for
the respondent.
[Page 474]
The judgment of Kerwin C.J. and
Martland J. was delivered by
THE CHIEF JUSTICE (dissenting):—Vern
Glen Dennis appeals by leave against the judgment of the Court of Appeal for British Columbia. That Court had dismissed his appeal from a finding
by Judge Fraser that his Honour had no jurisdiction to hear his appeal from his
conviction by Magistrate Krell on a charge under s. 223 of the Criminal Code
of driving a motor vehicle while his ability so to do was impaired by alcohol.
The information was sworn to by Laurence Martin, a constable of the Royal
Canadian Mounted Police stationed at Haney, "on behalf of Her Majesty the
Queen". At the hearing before the magistrate, Corporal A. Calvert, in
charge of the Haney detachment, appeared as prosecutor and Constable Martin
testified. Notice of appeal from the magistrate's decision, which was given July 31, 1956, was
duly served upon the magistrate and upon Corporal Calvert but not on Constable
Martin. The reason given for this was that Constable Martin had left on his
vacation for three or four weeks from August 1, 1956, and hence it was
impracticable, if not impossible, to serve him.
The matter came before the learned
County Judge on March 12, 1957, and,
as we are advised, counsel appeared for the Crown and stated that the
preliminary matters were in order. However, it appeared to the judge that this
was not so and the hearing was adjourned to March 26, 1957,
in order to enable counsel for Dennis to submit written argument. This was done
on March 22, 1957, and on March 26, 1957, the judge indicated that he proposed to dismiss the
appeal for reasons then given. Formal dismissal of the appeal was withheld
until May 28, 1957, in order to permit Dennis to file a notice of appeal,
perfect his appeal and apply for bail pending its disposition. The reasons of
the judge and of the Court of Appeal proceed upon the basis that Constable
Martin was the "respondent" and as he had not been served with notice
of the appeal there was no jurisdiction.
The term "respondent"
is not defined in Part XXIV of the Criminal Code, "Summary
Convictions", with which we are concerned. By s. 719(f) "appeal
court" means in
[Page 475]
British Columbia the County Court of the county in which the cause of
the proceedings arose and by s. 720 the defendant in proceedings under Part
XXIV may appeal to the appeal court from a conviction made against him. Section
722 reads in part as follows:
722. (1) Where an appeal is
taken under section 720, the appellant shall
(a) prepare 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;
(b) cause the notice
of appeal to be served upon
(i) the summary conviction
court that made the conviction or order or imposed the sentence, and
(ii) the respondent,
within thirty days after the
conviction or order was made or the sentence was imposed; and
(c) file in the
office of the clerk of the appeal court
(i) the notice of appeal
referred to in paragraph (a), and
(ii) an affidavit of service
of the notice of appeal,
not later than seven days
after the last day for service of the notice of appeal upon the respondent and
the summary conviction court. . . .
(3) Where the respondent is
a person engaged in enforcement of the law under which the conviction or order
was made or the sentence was imposed, the appeal court may direct that a copy
of the notice of appeal referred to in subsection (1) be served upon a person
other than the respondent, and where the appeal court so directs, that service
shall, for the purposes of this section and section 723, be deemed to be
service upon the respondent.
Under s. 727 the appellant would
have the right to a trial de novo before the County Court Judge and by
the orders under review he is deprived of that right. Undoubtedly the general
rule is that there is no appeal unless expressly given by statute and that any
conditions imposed thereby must be strictly complied with. An appeal is given
by s. 720 and the sole question is whether the service of the notice thereof
upon Corporal Calvert was service upon the "respondent". I have
examined the numerous decisions upon the point referred to by counsel, most of
which are mentioned in the decision of the Court of Appeal for Ontario in Regina
ex rel. Payne v. Feron,
and in the reasons for judgment delivered by Mr. Justice Bird on behalf of the
Court of Appeal in the present matter. To the
list might be added the recent decision of the Ontario Court of Appeal in Desaulnier
v. Desaulnier.
[Page 476]
It is quite true that some were
decided before the enactment of the new Code, when subs. (3) of s. 722 was
added, although it may be mentioned, as Mr. Justice Bird noted, that s. 750(b)
of the old Code gave power to a judge of the Court appealed to to direct that
service be made upon a person other than the respondent. It was argued on
behalf of the Crown and so found in the Courts below that subs. (3) of s. 720
left no room for any decision other than that the informant was the respondent.
With respect, my view is that the "respondent" mentioned in s. 722(1)
(b) (ii) is not confined in all cases to the person who laid the
information. In the present case we are not dealing with circumstances where a
private individual laid an information or where at the latter's request a
police officer did so, and the proceedings were carried on without the
intervention of the Crown authorities. In such cases the subsection may have
its operation to prevent an appeal being heard unless the informant is served
with notice thereof or an order obtained. I agree with the submission of
counsel for Dennis that the subsection does not apply where, as here, the Crown
is in name and substance the respondent and it is a matter of public order. The
charge was laid by Constable Martin "on behalf of Her Majesty the
Queen" and the proceedings before the magistrate are intituled:
The reasons of the County Judge are headed:
REGINA
vs.
VERN GLEN DENNIS
His
final order is headed:
REGINA
Complainant
(Respondent)
VERN GLEN DENNIS
Defendant
(Appellant)
and his report to the Court of
Appeal:
Respondent
HER MAJESTY THE QUEEN
against
VERN GLEN DENNIS
Appellant
[Page 477]
Corporal Calvert, the officer in
charge of the Haney detachment, conducted the proceedings before the magistrate
and counsel for the Crown appeared before the County Judge, before the Court
of Appeal and before this Court. The notice of appeal to the County Court was
headed:
REGINA
Complainant
(Respondent)
VERN GLEN DENNI
Defendant
(Appellant)
The latter, by itself, might be
taken as being self-serving but the others indicate that in the minds of all
concerned the Queen was the real respondent. Service of the notice of appeal
upon Corporal Calvert was, within the meaning of s. 722(1) (b) (ii),
service upon the respondent.
The appeal should be allowed, the
orders below set aside and the matter remitted to the County Court of New
Westminster to be heard upon the merits.
The judgment of Taschereau, Locke
and Fauteux JJ. was delivered by
FAUTEUX J.:—On the information of
Constable Martin, of the Haney detachment of the Royal Canadian Mounted Police,
in British Columbia, the appellant was tried by way of summary
conviction and found guilty under s. 223 of the Criminal Code. An appeal
lodged against this conviction, to the County Court of Westminster, was quashed
for lack of jurisdiction, for the reason that the notice of appeal had not been
served on the informant. In fact, the notice was served on Corporal A. Calvert,
a superior officer at the detachment who had conducted the case at trial.
A further appeal to the Court of
Appeal for British Columbia was likewise and for the same reason dismissed by a
unanimous judgment .
Hence, pursuant to s. 41 of the Supreme
Court Act, R.S.C. 1952, c. 259, the appellant sought and obtained leave to
appeal to this Court on the following grounds of law:
(1) Was the Court of Appeal
for British Columbia right in holding that "the respondent" mentioned
in section 722(1) (b) (ii) of the Criminal Code means the informant in cases
where the defendant is the Appellant.
[Page 478]
(2) Was the Court of Appeal
for British Columbia right in holding that service on Corporal A. Calvert
who conducted the prosecution before the convicting Court was not proper
service on the Respondent within the meaning of section 722(1) (b)(ii)
of the Criminal Code.
(3) Was the Court of Appeal
for British Columbia right in holding that service must be made on the
informant in all cases where an order for substitutional service has not been
obtained pursuant to section 722(3) in order to perfect an appeal by the
defendant pursuant to section 722 of the Criminal Code.
Reduced to proper dimensions, the
real questions to be determined in this appeal are (i) whether, in the
circumstances of this case, the informant Constable Martin was the respondent
within the meaning of s. 722(1) (b) (ii) of the Criminal Code,
upon whom notice of appeal should have been served and, if so, (ii) whether the
failure to serve the notice of appeal upon him goes to the jurisdiction of the
Court appealed to.
Dealing with the first question:
As there is no definition of the term "respondent", it may be
expedient to examine the status of the informant under Part XXIV, both in
proceedings at first instance as well as on an appeal to the County Court.
Sections 701 to 719 of Part XXIV
are related to proceedings at first instance. That the informant, whether a law-enforcement
officer or not, is at that stage a party to the case, cannot be doubted. He is
the person at whose initiative the proceedings are commenced by the laying of
the information: ss. 692(a) and 695(1). For the conduct of the
proceedings, he is also given the status of prosecutor and, as such, is
entitled to conduct the case, examine and cross-examine witnesses, personally
or by counsel or agent: ss. 692(e) and 709. While the Attorney General
of the Province is also given a similar status, i.e., the status of
prosecutor, the latter is not, qua prosecutor and within the definition
of the latter term, a party to the case. The failure of the informant or the
Attorney General or their respective counsel or agents to appear for the trial
permits the summary conviction Court to either dismiss the information or
adjourn the trial to some other time: ss. 706 and 710(4). Upon adjudication of
the case, the Court may, in its discretion, award and order costs to be paid to
the informant by the defendant, in the case of a conviction or
[Page 479]
an order against the latter, or
to be paid by the informant to the respondent in the case of a dismissal
of the information: s. 716.
Sections 719 to 733 deal with the
appeal to the County Court from the conviction, order or sentence terminating
the proceedings at first instance. That the informant may also be a party to
this appeal is clear. Under s. 720, the right of appeal is given, namely, (i)
to the defendant from the conviction or order made against him or the sentence
passed upon him and (ii) to the informant or the Attorney General of the
Province or, in certain cases, to the Attorney General of Canada, from an order
dismissing the information or against the sentence passed upon the defendant.
In the case of an appeal entered
by the defendant, as in the present instance, there is nothing, either
expressed or implied, in these provisions, suggesting that the Attorney General
of the Province, qua prosecutor, or the Attorney General of Canada, may
be a party to the appeal as respondent; and if this is a true view of the
provisions relating to such an appeal, it follows that the only possible
respondent, for purposes of service of the notice of appeal, is the informant
himself.
That this is the situation flows
from the nature and the form of this appeal as well as from the provisions of
s. 722.
Indeed, and under s. 727, the
appeal is heard and determined as a trial de novo in conformity with ss.
701 to 716, in so far as they are not inconsistent with ss. 720 to 732. This so-called
appeal is not really an appeal, but a trial; and in the case of an appeal by
the defendant, the judge presiding over the Court appealed to must himself find
him guilty before affirming the conviction. The informant and the
defendant, the parties in first instance, are thus the parties in such proceedings
and, for their purpose, are designated as respondent and appellant,
respectively.
The conditions precedent to the
exercise of this right of appeal are set forth in s. 722 enacting:
722. (1) Where an appeal is
taken under section 720, the appellant shall
(a) prepare 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 480]
(b) cause the notice
of appeal to be served upon
(i) the summary conviction
court that made the conviction or order or imposed the sentence, and
(ii) the respondent,
within thirty days after the
conviction or order was made or the sentence was imposed; and
(c) file in the
office of the clerk of the appeal court
(i) the notice of appeal
referred to in paragraph (a), and
(ii) an affidavit of service
of the notice of appeal,
not later than seven days
after the last day for service of the notice of appeal upon the respondent and
the summary conviction court.
(2) In the Northwest
Territories, the appeal court may fix, before or after the expiration of the
periods fixed by paragraphs (b) and (c) of subsection (1), a
further period not exceeding thirty days within which service and filing may be
effected.
(3) Where the respondent is
a person engaged in enforcement of the law under which the conviction or order
was made or the sentence was imposed, the appeal court may direct that a copy
of the notice of appeal referred to in subsection (1) be served upon a person
other than the respondent, and where the appeal court so directs, that service
shall, for the purposes of this section and section 723, be deemed to be
service upon the respondent.
The provisions of the last
subsection of this section are specially and exclusively applicable in the case
of an appeal entered by the defendant, who then becomes the appellant. In
express terms, these provisions show that the respondent in such an appeal may
be a person engaged in enforcement of the law or, as they also show by
necessary implication, a person other than one engaged in enforcement of the
law. In either case, such respondent must of necessity be the informant himself
for—with the exception of a party intervening in the first instance, if this be
legally possible—who else but the informant could, under the provisions related
to such an appeal, and at least in a case such as the present, be suggested as
respondent? In the case under consideration, and this is all that needs to be
decided, there is no doubt, in my view, that Constable Martin, the informant in
this case, was the respondent and, as such, the person upon whom the notice of
appeal had to be served.
The provisions of s. 722(3) are
clear and call for no construction; they must be given effect to.
The fact that, in laying the
information, Constable Martin alleged that he was doing so "on behalf of
Her Majesty the Queen", adds nothing to the other allegation
[Page 481]
that he was laying it as a
constable of the Royal Canadian Mounted Police, i.e., as a person
engaged in enforcement of the law; as such, he was indeed acting on behalf of
the Crown for the enforcement of criminal law; and the case, for the purpose of
the service of the notice of appeal to the County Court, was clearly one to
which the special provisions of subs. (3) were applicable.
Nor can the style given to the
proceedings, before the Magistrate and the County Court Judge, to wit: "REGINA v.
VERN GLEN DENNIS", affect the operation of the subsection, in this case.
With respect, I am unable to accept
the submission that service on Corporal Calvert amounted to a substantial
compliance with s. 722. The impossibility of serving the notice upon Constable
Martin was precisely one of the grounds which would, had an application been
made under subs. (3) of s. 722, have permitted the Court appealed to to direct
copy of the notice of appeal to be served upon a person other than Constable
Martin, such service, if so directed, then availing as service upon the latter.
The provisions of subs. (3) would be absolutely nugatory were appellant's
submission accepted. Furthermore, referring to the exceptional nature of a
right of appeal, this Court in Welch v. The King,
said at p. 428:
That all the substantive and
procedural provisions relating to it must be regarded as exhaustive and
exclusive, need not be expressly stated in the statute. That necessarily flows
from the exceptional nature of the right.
Dealing with the second question:
I am also in respectful agreement with the unanimous conclusion of the Court of
Appeal that the County Court Judge was right in deciding he had no jurisdiction
in the matter, in view of the failure of appellant to comply with the
requirements of s. 722, and I did not Understand counsel for appellant to
challenge the suggestion that non-compliance with the provisions of s. 722
fatally affected the jurisdiction of the County Court.
In Wills & Sons v.
McSherry et al.,
where circumstances as to facts and law were different, it was held that
notwithstanding the want of service, the Court, in that particular case, had
jurisdiction to hear the appeal. An examination
[Page 482]
of this qualified decision shows
that it rested on an application of the maxim lex non cogit ad impossibilia
aut inutilia. The general principles were stated as follows by Channell J.
at pp. 25-6:
The statute gives this Court
jurisdiction to hear appeals from justices by way of case stated subject to
certain conditions. The law applicable to the point is clearly stated in
Maxwell on the Interpretation of Statutes (5th ed.) at p. 621: "Enactments
which impose duties on conditions are, when there are not conditions precedent
to the exercise of a jurisdiction, subject to the maxim that lex non cogit ad
impossibilia aut inutilia. They are understood as dispensing with the performance
of what is prescribed, when performance is idle or impossible. In such cases,
the provision or condition is dispensed with, when compliance is impossible in
the nature of things. It would seem to be sometimes equally so where compliance
was, though not impossible in this sense, yet impracticable, without any
default on the part of the person on whom the duty was thrown." The author
then refers to Morgan v. Edwards, 5 H. & N. 415, Woodhouse v.
Woods, 29 L.J.(M.C.) 149, and Syred v. Carruthers, E.B. & E.
469, and says: "If the respondent in an appeal kept out of the way to
avoid service of the notice of appeal, or at all events could not be found
after due diligence in searching for him, the service required by the statute
would probably be dispensed with … Where, however, the act or thing required by
the statute is a condition precedent to the jurisdiction of the
tribunal, compliance cannot be dispensed with; and if it be impossible, the
jurisdiction fails." That last passage shews that there is a difficulty in
holding that the Court has power to dispense with the performance of the
conditions precedent laid down in this statute. If the point is put in that way
I think the Court clearly cannot do so. But that is not quite the question
which we have to decide. The question is whether the statute has been
sufficiently complied with if the party has done everything in his power to
effect service and it is clearly impossible for him to do so.
(The last phrase has been
italized by myself.)
The provisions of the Summary
Jurisdiction Act, 1857, which were considered in the case just quoted, are,
as well as the facts to which they were applied, different from those here
under consideration. Under s. 723(1) of our Code, it is only "where an
appellant has complied with section 722" that arises the duty of the Court
appealed to to set down the appeal for hearing. Under s. 727(1), it is also
only "where an appeal has been lodged in accordance with this Part"
that there arises the duty of the Court appealed to, to hear and determine the
appeal. These enactments impose duties on conditions which are precedent to the
exercise of the jurisdiction and compliance cannot be dispensed with. It is,
however, quite unnecessary to decide the case upon that basis, for even if the conditions
prescribed in these enactments were not conditions precedent to the exercise of
jurisdiction, the maxim lex non cogit ad
[Page 483]
impossibilia aut inutilia could have no application in the circumstances of
this case. Indeed, the record does not show, nor was it ever suggested at the
hearing, that it was impossible for appellant to resort to the relief specially
provided by Parliament under subs. (3) of s. 722. I find it impossible to
ignore the latter provisions.
I would therefore dismiss the appeal.
Appeal dismissed, KERWIN C.J. and MARTLAND J. dissenting.
Solicitor for the
appellant: E. P. Hartt, Toronto.
Solicitor for the
respondent: A. Miles Nottingham, New
Westminster.
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