R. v. Badall, [1975] 2 SCR 503

Supreme Court of Canada

R. v. Badall, [1975] 2 S.C.R. 503

Date: 1974-06-28

Her Majesty The Queen Appellant;

and

Bawa Singh Badall, Kenneth Lester Joss, Asa Singh Banes, Sujan Singh Grewall, Sirget Badall and Frances Joss Respondents.

1974: June 6; 1974: June 28.

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

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Notice of appeal signed by “agent” for Attorney General—Notice of appeal valid—Criminal Code, R.S.C. 1970, c. C-34, s. 605.

Lemay v. The King, [1952] 1 S.C.R. 232, applied.

APPEAL from a judgment of the Court of Appeal for British Columbia dismissing an appeal from the acquittal of the respondents on a charge of conspiracy in violation of the Immigration Act. Appeal allowed.

C.R. Lander and G. Pinos, for the appellants.

T. Braidwood, Q.C., and J.W. Hogan, for the respondents.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The question at issue here is whether the Crown’s notice of appeal to the British Columbia Court of Appeal from the acquittal of the respondents on a charge of conspiracy in violation of the Immigration Act complied with s.605 of the Criminal Code. Upon a preliminary objection taken before the British Columbia Court of Appeal, that Court held that the notice of appeal was a nullity because of non-compliance with s.605, and that this was a matter of substance which obliged the Court to dismiss the appeal.

Section 605, so far as material here, reads as follows:

(1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

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(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone…

The notice of appeal in this case was in these words in its material parts:

Take notice that the Attorney General of Canada appeals to this Court …from the acquittal of the above-named respondents upon the following grounds involving a question of law only…

…

Dated at Vancouver, British Columbia, this 28th day of May, A.D. 1973

(sgd) “Cory Stolte”

Agent for the Attorney General of Canada.

This notice of appeal is filed by C. Stolte, Esq., Agent for the Attorney General of Canada….

The gravamen of the complaint against the validity of the notice of appeal was that s. 605 limited the right to appeal, and hence the right to file the notice required under s. 607, to the Attorney General or to counsel instructed by him for that purpose, and that a notice signed by a person as “agent” of the Attorney General would not do. It was conceded, as indeed it had to be by reason of s. 2 of the Criminal Code, that the Deputy Attorney General of Canada could have brought the appeal and signed the notice of appeal. It was contended, however, that an agent, even though no doubt is cast on the fact of the agency, cannot bring the appeal in the name of the Attorney General when the notice is signed by such agent in that character. Support for this contention was said to reside in s. 748 (b) of the Criminal Code which, with respect to appeals in summary conviction matters, authorizes an appeal by, inter alia, “the Attorney-General or his agent”, thus pointing up a contrast with s. 605.

The position taken by the respondents, in support of the ruling of the British Columbia Court of Appeal, is that although the Attorney General may himself appeal and bring the notice of appeal in his name and sign it, and although this is also true of his deputy, and is also true of

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counsel instructed by him, it cannot be done by a person who signs as agent, nor can such a person properly sign a notice of appeal taken in the Attorney General’s name. I am unable to accept this view of s. 605 for the reasons that follow.

In Lemay v. The King[1],a case that was not brought to the notice of the British Columbia Court of Appeal, this Court held (and it was unanimous on this point) that the then s. 1013(4) of the Criminal Code, R.S.C. 1927, c.36, as enacted by 1930 (Can.), c. 11, s. 28, giving the Attorney General (and he alone is mentioned) a right of appeal on questions of law alone to the provincial Court of Appeal against an acquittal on a charge of an indictable offence, was not violated where the notice of appeal was signed by a counsel as agent of the Attorney General. This Court (and it was the full Court) rejected the contention that the Attorney General should have signed the notice of appeal personally. In my opinion, the extension of the Crown’s right to appeal to counsel instructed by the Attorney General, while also keeping the right in the Attorney General as before, has not made the Lemay case inapplicable. Indeed, I am unable to appreciate any but a semantic difference between a counsel who is an agent of the Attorney general and a counsel instructed by the Attorney General; the latter can surely be no more than an agent, albeit perhaps a special one for the occasion.

Counsel for the respondents contended also that there was no proof that the person signing as agent was in fact counsel for the Attorney General or that he had been instructed by the Attorney General for the purpose of the appeal. I do not think that this objection can be pressed here when the issue raised by preliminary objection in the Court of Appeal was that an agent was not empowered by s. 605 to sign the notice of appeal. Moreover, I find it unnecessary in

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this case to consider either R.V. Green[2], where the agency alleged was stated as being for the Minister of Justice for Canada instead of for the Attorney General of Canada, or Martin v. The Queen[3], where the notice of appeal was by “Mr. MacMillan for S. Sigsworth representing the Attorney General of Canada”.

I would, accordingly, allow the appeal, set aside the order of dismissal and remit the case to the British Columbia Court of Apeal for determination on the merits.

Appeal allowed.

Solicitor for the appellant: D.S. Thorson, Ottawa.

Solicitors for the respondents: Braidwood, Nuttall, MacKenzie, Brewer, Greyell & Co., Vancouver.

Solicitors for the respondents, Kenneth Lester Joss and Frances Joss: Mulligan, Hogan, Ritchie & Firman, Vancouver.