R. v. Armstrong, [1976] 1 SCR 783

Supreme Court of Canada

R. v. Armstrong, [1976] 1 S.C.R. 783

Date: 1975-06-26

Her Majesty The Queen Appellant;

and

George Arnold Armstrong Respondent.

1975: May 13; 1975: June 26.

Present: Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Appeal—Crown’s notice of application for leave to appeal sentence—Crown counsel’s name signed by law student—Court of Appeal allowing preliminary objection to legal sufficiency of form of notice—Jurisdiction of Supreme Court of Canada to entertain appeal—Application for leave remitted to Court of Appeal—Supreme Court Act, R.S.C. 1970, c. S-19, s. 41.

[Goldhar v. The Queen, [1960] S.C.R. 60; Paul v. The Queen, [1960] S.C.R. 452; Hind v. The Queen, [1968] S.C.R. 234, distinguished.]

APPEAL by the Crown from the refusal by the Court of Appeal for British Columbia to consider an application for leave to appeal from a sentence imposed upon the accused following his conviction of an indictable offence. Appeal allowed.

No one appearing for the appellant.

R.A. Easton, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This appeal by the Crown, which comes here by leave of this Court, arises out of a refusal by the British Columbia Court of Appeal to enter upon a consideration of the Crown’s application for leave to appeal a sentence imposed upon the accused following his conviction of an indictable offence. The British Columbia Court of Appeal allowed a preliminary objection by counsel for the accused to the legal sufficiency of the form of the notice of the application for leave to appeal.

[Page 784]

The notice purported to be signed with the name of a qualified barrister and solicitor, followed by the words “Crown Counsel, Agent for and on behalf of the Attorney-General”, and to the left of the signature was the following, in quotation marks: “per J.M.E.”. The record shows that the Crown counsel’s name was signed, apparently on his instructions, by his law student on his behalf.

Counsel for the respondent accused did not contest the legal sufficiency, under s. 605(1)(b) of the Criminal Code, of the notice of application for leave to appeal, apparently because of the judgment of this Court in R. v. Badall[1], which had not been handed down when the matter was before the British Columbia Court of Appeal. He did, however, urge very strongly that this Court had no jurisdiction to entertain the Crown’s appeal because, first, the issue related to sentence and was foreclosed by Goldhar v. The Queen[2]; and, second, what was involved was a refusal by the British Columbia Court of Appeal to give leave to appeal and this was a matter outside this Court’s jurisdiction under its decisions in Paul v. The Queen[3], and Hind v. The Queen[4].

Neither of these contentions is tenable here. Goldhar, Paul and Hind do not touch this case. No question of sentence, whether as to its legality or otherwise, is directly before this Court, nor is this a case where this Court is being asked to review a considered refusal by the provincial Court of Appeal to grant leave. The present case is simply one where the provincial Court of Appeal said there was no proper application for leave before it and hence nothing to require it to act. It is distinguishable from the three cases above mentioned, and, in my opinion, it is properly before this Court under s. 41 of the Supreme Court Act, R.S.C. 1970, c. S-19.

[Page 785]

In the result, the appeal should be allowed and the application for leave remitted to the British Columbia Court of Appeal for consideration on the merits.

Appeal allowed.

Solicitors for the appellant: Macaulay & Co., Vancouver.

Solicitors for the respondent: Russell & DuMoulin, Vancouver.