Supreme Court of Canada
R. v. Nabis, [1975] 2 S.C.R. 485
Date: 1974-06-28
Her Majesty The Queen Appellant;
and
Ralph Nabis Respondent.
1974: March 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 SASKATCHEWAN
Criminal law—Oral threat to cause injury made face to face—No offence under Criminal Code, R.S.C. 1970, c. C-34, s. 331(1)(a).
The respondent was found guilty of having, by speaking to a certain person, uttered a threat to cause injury to the said person, contrary to s. 331(1)(a) of the Criminal Code. The Saskatchewan Court of Appeal set aside the conviction and the appellant appealed to this Court from that decision. The point at issue was whether the words “or otherwise” in s. 331(1) are intended to cover purely oral threats made directly or face to face by the person who utters them to the person they are aimed at.
Held (Martland, Judson and Pigeon JJ. dissenting): The appeal should be dismissed.
Per Laskin C.J. and Ritchie, Spence, Dickson, Beetz and de Grandpré JJ.: In order to conclude that s. 331 does not cover purely oral threats made face to face, it suffices to fall into line with the technique used by Parliament in delimiting the offence. The definition of the offence lists specifically, though not exhaustively, a number of means of expressing a threat. The non-exhaustive nature of the listing is not meant to do away with the very technique used by Parliament to delimit the boundaries of the offence and thereby to suppress all delimitation. A line must therefore be drawn at some point with respect to the means by which threats can be uttered. A stop should at least be made at the simplest, most direct and most frequently used mode of expression, the oral proffering of a threat face to face, especially as it appears never to have amounted to a criminal offence.
Per Martland, Judson and Pigeon JJ., dissenting : The word “otherwise” in s. 331(1) includes an oral threat made face to face. There is no valid reason for
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reading this enactment otherwise than literally. There is no ambiguity whatsoever, it covers any threat of the kind that is specified, the word “otherwise” being completely general.
The fact that oral threats are already covered in certain cases under other sections is no reason for putting a restrictive construction on the wording of a section written in general terms.
APPEAL by the Crown from a judgment of the Court of Appeal for Saskatchewan, allowing an appeal from the conviction of the accused under s. 331(1)(a) of the Criminal Code. Appeal dismissed, Martland, Judson and Pigeon JJ. dissenting.
K.W. MacKay, for the appellant.
T.G. Graf, for the respondent.
The judgment of Laskin C.J. and Ritchie, Spence, Dickson, Beetz and de Grandpré JJ. was delivered by
BEETZ J.—The facts of the present case are reported elsewhere: Regina v. Nabis1. It will suffice to summarize them. Respondent was found guilty of having, by speaking to one Donald Brown, uttered a threat to cause injury to said Brown, contrary to s. 331 (1)(a) of the Criminal Code.
The Saskatchewan Court of Appeal set aside the conviction and appellant appealed to this Court from that decision.
Counsel for the appellant submitted that the Court of Appeal had erred in holding that oral threats made face to face do not constitute an offence prohibited by s. 331 of the Criminal Code and that there could be no offence under this provision unless there had been recourse to some instrument or means of communication. Appellant also submitted that the Court of Appeal erred in following the reasoning of the British Columbia Court of Appeal in R. v. Wallace, rather than that of the High Court of
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Ontario in R. v. DiLorenzo.
Section 331 of the Criminal Code reads as follows:
331. (1) Every one commits an offence who by letter, telegram, telephone, cable, radio, or otherwise, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or injury to any person, or
(b) to burn, destroy or damage real or personal property, or
(c) to kill, maim, wound, poison or injure an animal or bird that is the property of any person.
(2) Every one who commits an offence under paragraph (1)(a) is guilty of an indictable offence and is liable to imprisonment for ten years.
(3) Every one who commits an offence under paragraph (1)(b) or (c) is guilty of
(a) an indictable offence and is liable for imprisonment for two years, or
(b) an offence punishable on summary conviction.
What the Court must decide is whether the words “or otherwise” in s. 331 (1) are intended to cover purely oral threats made directly or face to face by the person who utters them to the person they are aimed at.
In the Wallace case, the accused had been charged with having, in the presence of a witness, uttered a threat to cause death or injury to another person, but the indictment did not specify the means by which the threat was uttered. At the outset of the trial the indictment was quashed for reasons which are not reported. The Crown appealed. The only question before the Court of Appeal of British Columbia was the following: did the indictment disclose an offence known to the law? Branca J.A., speaking for the Court, said that even though, generally, an indictment is not required to specify the means by which an offence is committed, the matter stands on a different basis where a section makes such means an element of the offence; further, in his opinion the words “let-
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ter, telegram, telephone, cable, radio” used in s. 331 refer to a category of means of communication, all of which are not mentioned in the section, and “or otherwise” must be restrictively construed so as not to extend outside of this category. In other words, Branca J.A. applied the ejusdem generis rule. The appeal was accordingly dismissed.
In the DiLorenzo case the accused had been charged with having, by procuring one Norman Menezes to make the threat, threatened to cause injury to a certain Richard Zavitz and his family. Replying on Wallace, the accused moved before the presiding judge that the jury be directed to bring in a verdict of acquittal on the ground that he was charged with an offence unknown to the law. Keith J., of the High Court of Ontario, treated as obiter the consideration of the ejusdem generis rule in the Wallace case; in his opinion, the indictment could have been quashed merely on the basis that the specific means by which the threat had been expressed by the accused was not referred to in the indictment. Besides, he differed with the British Columbia Court of Appeal and was of the opinion that the words “or otherwise” in s. 331 ought to be interpreted as meaning “or in any other way”. He declined to direct an acquittal.
In the instant case in the Court of Appeal, Hall J.A.—with whom Woods J.A. concurred—after setting out his analysis of s. 331, and the history thereof, and comparing it with other Criminal Code provisions which make it an offence to utter threats if a particular purpose is proven, opted in favour of the interpretation given in Wallace rather than that given in DiLorenzo. He held further that the acts charged against the accused in the DiLorenzo and Wallace cases could be distinguished from the act charged here in that they involved threats meant to be communicated to the victim through or by a third person instead of a threat made face to
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face. Brownridge J.A. for his part rejected the latter distinction. In his view, one had to choose between the two interpretations above mentioned, and, for reasons pertaining to the history of the legislation, he adopted the interpretation which had prevailed in the Wallace case.
It is certain that, taken literally, the words “or otherwise” in s. 331 may have a sufficiently broad meaning to embrace purely oral threats made face to face. This is one of the arguments put forward by counsel for the appellant.
In their present form, the provisions of s. 331 date back to the Statutes of 1960-61, c. 43, s. 10, which repealed the former s. 316, adopted by the 1953-54, c. 51, revision. This latter section read as follows:
316. (1) Every one commits an offence who sends, delivers, utters or directly or indirectly causes any, person to receive
(a) a letter or writing that he knows contains a threat to cause death or injury to any person; or
(b) a letter or writing that he knows contains a threat
(i) to burn, destroy or damage real or personal property, or
(ii) to kill, maim, wound, poison or injure an animal or bird that is the property of any person.
(2) Every one who commits an offence under paragraph (a) of subsection (1) is guilty of an indictable offence and is liable to imprisonment for ten years.
(3) Every one who commits an offence under paragraph (b) of subsection (1) is guilty of
(a) an indictable offence and is liable to imprisonment for two years, or
(b) an offence punishable on summary conviction.
These provisions had their origins in statutes of 1869 which rendered uniform the law of the various Provinces respecting offences against the person and property rights: Offences Against the Person Act, 1869 (Can.), c. 20, s. 15, and Malicious Injuries to Property, 1869 (Can.), c. 22, s. 58. These, in turn, were derived
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from English statutes such as the Offences against the Person Act, 1861 (U.K.), c. 100, s. 16:
Whosoever shall maliciously send, deliver or utter, or directly or indirectly cause to be received, knowing the content thereof, any letter or writing threatening to kill or murder any person, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding ten years.
Before the 1960-61 amendment therefore, the Criminal Code, in s. 316, dealt only with threats made by a letter or writing. The 1960-61 amendment no longer refers to a writing but it prohibits the uttering of threats by letter, telegram, telephone, cable, radio, or otherwise. Moreover, the structure of the sentence containing the prohibition has been altered: under the 1953-54 wording, a person commits an offence when he “…utters …a letter or writing that he knows contains a threat…”, whereas, since the 1960-61 amendment, “every one commits an offence who by letter… or otherwise, knowingly utters… a threat…”. So counsel for the appellant submitted a second argument: it is the threat itself which is now prohibited whatever means are adopted to express it whereas, before 1960-61, the statute merely prohibited the uttering of a letter or writing which was known to contain a threat.
Finally, appellant’s counsel pleaded that a purely oral threat made face to face can be serious enough to warrant prohibition. And, he argued, it is apparently not an offence under any other provision of the Criminal Code. In this regard, appellant’s counsel urged that mere words cannot, under s. 244, amount to an assault, a proposition which is generally accepted though it may sometimes be disputed: Glanville Williams, “Assault and Words”, [1957] Crim. L.R. 219. He urged further that s. 745, under which the person making the threat could be forced to enter into a recognizance to keep the peace, is a section which does not create an offence.
[Page 491]
Nevertheless, a simple analysis of the wording of s. 331 is far from being wholly supportive of appellant’s theory.
One can indeed ask why Parliament would take the trouble to enumerate, even in a manner which is not exhaustive, various means of expressing or conveying threats if its purpose was to prohibit threats by whatever means they are uttered: the words “by letter, telegram, telephone, cable, radio, or otherwise” would then serve no purpose in s. 331 other than to enlighten the reader by a list of examples which not only would not be limiting but would logically not even refer to essential elements of the offence.
It appears rather, upon reading the 1960-61 amendment, that Parliament intended to include in its prohibition an increased number of means whereby threats can be expressed or conveyed, having regard to the advances of technology, which does not necessarily mean that it intended to make a new type of offence the main object of which would be the threat itself, however expressed.
I am reinforced in this view by the fact that the conduct with which respondent is charged did not constitute a statutory offence prior to 1960-61. It may be noted also that such conduct does not appear to have constituted an offence at common law either: Brownridge J.A. in the Court of Appeal quoted the following passage from the U.S. Corpus Juris Secundum, vol. 86, p.787:
“At common law a mere threat was not a criminal offence, at least when made in words not written, and without intent thereby to influence the acts of the person threatened, although it might be sufficient to invoke security to keep the peace”.
The question has been asked why purely oral threats should not be prohibited. Some have reasoned that a person who goes to the trouble of writing a threatening letter, for example, has already proceeded from words to deeds and
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thereby manifested his resolve. Also, the use of certain means may conceal the identity of the person making the threat or prevent the prospective victim from judging what steps he can take to ensure his safety. Lastly, it is possible that resort to any means other than the one which human beings most usually employ to communicate with each other is likely to amplify the threat, something which Parliament would seek to prevent.
Be that as it may, the offence contemplated in s. 331 is remarkable in many respects. For the offender to be guilty of it, it does not matter whether or not he intended to carry out his threat (R. v. Syme; R. v. Johnson), or that he acted for any specific purpose. His motives are not relevant (R. v. Solanke). Whether the threat raised the possibility of imminent or remote danger is equally of no consequence. Nor is the effect of the threat on the prospective victim: it is not even necessary that the person threatened be ever aware of the fact that he was threatened.
The offence contemplated in s. 331 differs in those respects from most other offences involving threats as the particular objective aimed at is an essential element of the latter; it also differs from another offence in some respects closely related to it, namely, that of attempting or threatening, by an act or gesture, to apply force to the person of another, for the commission of which the offender must have a present ability to effect his purpose or cause the other party to believe on reasonable grounds that he has such ability: Criminal Code, s. 244(b).
The offence prohibited by s. 331 is of singular flexibility. One may say that it consists of the simple expression of a thought. That the expression of a thought, albeit a sinister one, should of itself constitute a serious crime, regardless of the form it takes, the motives of its author, and
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its present or probable effects on the victim or on any other individual, seems to me to be contrary to the general economy of our criminal law and also likely to lead to many difficulties, for countless are those who do not weigh their words. I think it unlikely, in the absence of more definite language, that the statute intended this. Such an offence must almost of necessity be delimited. To achieve this result, two main techniques, among others, can be used, and they are not mutually exclusive. The one consists of taking into consideration the intent of the person making the threat or his ability to carry it out or to cause others to believe, on reasonable grounds, that he is able to do so; this is the technique generally used by Parliament in other cases of threats; and the other consists of taking into account the means used in expressing the threat, independently of the intent of the person uttering it, the ability he has to carry it out and the probable effect the threat will produce.
As is revealed by the history of the provision, it is this second technique that the legislator has always employed here, and it does not appear to me to have abandoned it in the present definition of the offence, which lists specifically, though not exhaustively, a number of means of expressing a threat. I do not think that the non-exhaustive nature of the listing is meant to do away with the very technique used by Parliament to delimit the boundaries of the offence and thereby to suppress all delimitation. A line must therefore be drawn at some point with respect to the means by which threats can be uttered. For my part, I would at least stop at the simplest, most direct and most frequently used mode of expression, the oral proffering of a threat face to face, especially as it appears never to have amounted to a criminal offence.
The Court of Appeal also noted an anomaly that would result from a construction of s. 331
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extending its prohibition to purely oral threats. Such threats in fact often accompany an assault, Criminal Code, s. 244. If it is true that mere words cannot constitute an assault and that some overt act is necessary for an assault to be committed, it would follow that the purely oral threats prohibited by s. 331, unaccompanied by any threatening gesture, would constitute a more serious offence than assault. In some cases, therefore, uttering a threat might be treated more severely than carrying it out.
Other anomalies may be mentioned. Thus anyone who may have threatened to injure another person both in the circumstances and with the intent mentioned in s. 381 might be charged with threats, which is an indictable offence, or with intimidation, which is only an offence punishable on summary conviction, and prosecuted either under s. 331 or under s. 381, whereas anyone who actually caused injuries to another in the circumstances and with the intent stated in s. 381, without having first threatened his victim with this harm, could only be charged with intimidation.
Of course, such paradoxes do not by themselves constitute decisive arguments against appellant’s contention: they may often occur as the result of the numerous overlappings in the Criminal Code. Yet, they deserve to be taken account of as legal interpretation must tend to integrate various enactments into a coherent system rather than towards their discontinuity.
In order to conclude that s. 331 does not cover purely oral threats made face to face, it suffices to fall into line with the technique used by Parliament in delimiting the offence. Reference to the ejusdem generis rule would not appear to be essential particularly if applying that rule should restrict the prohibition in s. 331 to the use of mechanical, electronic or physical means or instruments and exclude from its scope the use of messengers or other intermediary means. That is another question, which we are not called on to answer in the present case.
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I feel I should also point out that the partial similarity of language in ss. 330 and 331 of the Criminal Code does not necessarily entail an identical interpretation in view of the specific element of intent used by Parliament to delimit the offence defined in s. 330.
I would dismiss the appeal.
The judgment of Martland, Judson and Pigeon JJ. was delivered by
PIGEON J. (dissenting)—The question in this case is whether the word “otherwise” in s. 331(1) of the Criminal Code includes a threat made by word of mouth or is to be somehow restricted so as not to include such a threat made face to face. It is clear that, at common law, an oral threat was not an offence, although it could be the basis of an information on which a justice of the peace might require the defendant to enter into a recognizance to keep the peace, as is now contemplated in s. 745. It is also clear that, before the 1961 amendment, 331, then known as s. 316, referred only to a letter or writing containing a threat. However, the description of the offence presently covers explicitly not only the written word (letter, telegram, cable), but also the spoken word transmitted by electromagnetic waves (telephone, radio). It also covers threats uttered or conveyed otherwise, and the question really is whether any restriction is to be implied in this expression of general import.
In considering this question, one must bear in mind the basic change effected by the 1961 amendment. Previously, it was only a written message expressing a threat that was covered, not a threat in itself. A threat, as distinguished from a threatening act or gesture which comes under s. 244 (b), is an idea expressed in words. Therefore, it primarily means menacing spoken
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words, seeing that writings are graphic signs conveying the meaning of words. Thus, the basic change made in 1961 is that the section no longer covers only the written transcription of the threatening words, but the threatening words themselves whether uttered or conveyed by a message in writing, or by telephone or radio, or otherwise. The question then is: “Does the word ‘otherwise’ require the interposition of any mechanical, electrical or electronic means for delivering the threat?”
I cannot see any valid reason for reading this enactment otherwise than literally. There is no ambiguity whatsoever, it covers any threat of the kind that is specified, the word “otherwise” being completely general. Some may say: “But if this is so, why are five modes of transmission enumerated, are not those words made meaningless if “otherwise” is construed literally?” This objection fails on several grounds. There is first the cardinal rule that there should be no departure from the literal meaning unless there is some ambiguity. It follows that, only when a choice has to be made between several possible constructions, is special consideration to be given to a meaning whereby all words have some effect rather than a meaning whereby some words are deprived of any effect.
Also, it is at least as important to give effect to the word “otherwise” as to the words preceding it. By putting it in the enactment, Parliament has indicated that the enumeration is not complete. While some draftsmen may consider it undesirable to lengthen enactments by enumerating a number of things followed by “or otherwise”, such a method of drafting is so common that it should not be cause for concern. Of course, there is always the ejusdem generis rule, but the enactment already including several methods of voice transmission, I fail to see what genus could be understood to be specified by the enumerated words which would include all those words, leave some scope for non-enumerated things, and yet exclude direct transmission of the human voice through the air face to face.
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That this is a complete departure from common law principles creates no difficulty in my view. The present Criminal Code has done away with the common law entirely as far as the definition of offences is concerned. It is, therefore, to be looked upon purely as a statutory enactment. By the 1961 amendment, Parliament clearly indicated the intention to change the law. There is no presumption that the law was not intended to be changed to the full extent indicated by the words used.
With respect to obstruction of the course of justice, s. 127(3) makes no distinction between written or oral threats. Similarly, with respect to extortion, s. 305 makes no distinction between written or oral threats. Is it not perfectly logical that no distinction should now be made concerning threats uttered for a purpose other than obstructing justice or extorting something? There is also no distinction made as to the mode of making threats in s. 381(1)( a) and (b) dealing with intimidation in the context of industrial disputes. While the two other crimes just mentioned are serious indictable offences involving a maximum penalty of ten years and fourteen years respectively, intimidation under s. 381 is a summary conviction offence. Now s. 331 makes a distinction with respect to the penalty between threats to cause death or injury to a person (subs. 1(a)) and other threats (subs. 1(b) or (c)). In the first case, the offence is indictable and the maximum penalty is ten years. In the other cases, there is the option of an indictment under which the maximum penalty is two years or a summary conviction under which the maximum penalty is a fine of $500 or 6 months, or both (s. 722(1)).
From the above, it is apparent that whichever way s. 331 is construed, there is some overlap-
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ping with s. 127(3), s. 305 or s. 381(1) in many cases. It is now settled by our recent judgment in Lafrance v. The Queen that the Code is not to be construed so as to avoid any duplication or overlapping in the definition of offences. Therefore, it seems to me that the fact that oral threats are already covered in certain cases under other sections is no reason for putting a restrictive construction on the wording of a section written in general terms. It is to be noted that the duplication found to exist in the Lafrance case arose out of a major departure from common law principles. Larceny involved the intention of misappropriating definitively someone else’s property. However, the definition of “theft” in our Criminal Code extends to a taking with intent to deprive the owner of the thing temporarily or absolutely. For this reason, it was held that the taking of an automobile for a joy ride was theft, although it might also be prosecuted as a summary conviction offence under s. 295. This does not mean that the offender can be convicted of both offences, because a conviction for a substantially similar offence will bar any other conviction, as decided in Kienapple v. The Queen (Feb. 12, 1974).
There are not many cases on s. 331 subsequent to the 1961 amendment. In R. v. Wallace, the British Columbia Court of Appeal upheld an order quashing an indictment charging only that the accused did utter threat to cause death or injury to a named person. Branca J.A. speaking for the Court, said (at pp. 43, 44):
Generally speaking, a count is not insufficient by reason of the fact that it does not specify the means by which an alleged offence is committed but where the means by which an act is done is an essential
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ingredient of the offence as defined in any section then its absence from the indictment stands on a different basis.
…
…in my judgment whatever may be the broader meaning of the general words “or otherwise” as used in s. 316(1) if the ejusdem generis rule does not apply is immaterial as in context they do in fact follow the words “letter, telegram, telephone, cable, radio” which enumeration of means of communication are all specimens of a genus or category of communication that is not exhaustive and therefore “or otherwise” as used in the context must be restricted to some means of communication not specifically spelled out in the section, but within the genus or category created.
With respect, I cannot agree that “means of communication” do not include voice communication. In Saumur v. The City of Quebec, the question was the validity of a city by‑law forbidding distribution of “any book, pamphlet, booklet, circular, tract”. Rand J. said (at p. 332):
That public ways, in some circumstances the only practical means available for any appeal to the community generally, have from the most ancient times been the avenues for such communications, is demonstrated by the Bible itself: in the 6th verse of ch. xi of Jeremiah these words appear: “Proclaim all these words in the cities of Judah, and in the streets of Jerusalem”; (My emphasis.)
Branca J. also objected to the literal construction (at p. 44):
If such were the case then the situation that appalled the learned trial Judge in the Court below would in reality result, that is that one who uttered a threat to another with the present ability to effect his purpose could be charged under s. 230 and would be liable to a comparatively lesser period of imprisonment as a maximum punishment than where he had uttered a threat without the present ability to effect his purpose, in which event he could be imprisoned for up to 10 years.
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It must first be pointed out that what was then known as s. 230, and now is s. 244, does not have reference to oral threats. It reads:
244. A person commits an assault when, without the consent of another person or with consent, where it is obtained by fraud,
(a) he applies force intentionally to the person of the other, directly or indirectly, or
(b) he attempts or threatens, by an act or gesture, to apply force to the person of the other, if he has or causes the other to believe upon reasonable grounds that he has present ability to effect his purpose.
Dealing with that provision, Tysoe J.A. with whom Branca J.A. concurred, said in R. v. Byrne, at p. 183, “no mere words can amount to an assault”. However that may be, the 1961 amendment to s. 331 cannot be limited in its scope by reason of such an overlapping. This follows from the principle established in the Lafranee case. Furthermore, it should be borne in mind that mens rea is always required for a crime to be committed/Therefore, only those threats that are intended to be taken seriously are to be covered by s. 331. In R. v. Wilkins, a case that was referred to throughout in Lafrance, the Ontario Court of Appeal held that when an accused had taken a policeman’s motor-cycle intending to drive it a short distance as a prank, he was guilty neither of theft nor of joy-riding. It was said (at p. 195) “His intention was merely to play a joke on Nichol and the judge so found. The intention to perpetrate this joke, stupid though it was, is incompatible with the evil intent which is inherent in the crime of theft.”
Applying the same principle to oral threats, it would have to be said that if they are not meant to be taken seriously, there could clearly be no offence against s. 331. Therefore, there is no need to put a restrictive construction in order to avoid the possibility of prosecution for uttering
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idle threats. In my view, Keith J. was correct when, in R. v. DiLorenzo, he declined to follow the opinion expressed in the Wallace case by the British Columbia Court of Appeal. He said (at pp. 32, 33):
To my mind the words “or otherwise” ought to be interpreted as meaning “or in any other way”. The ejusdem generis rule, as defined by the British Columbia Court of Appeal, acknowledges that while normally, where there has been an enumeration of specific things susceptible of being construed as specimens of a single genus or category—but not exhaustive thereof—their meaning should be restricted to things of that class or category, there is nevertheless an exception where the context in which the general words are used reasonably and clearly demand a broader significance or interpretation. In my view the words “or otherwise” contained in s. 331(1) (a) demand that they be given such broader significance or interpretation. Were one to hold otherwise it would mean that the voice of a threatener communicated through the wires of a telephone or, without wires, by radio would support a charge under this section while vocal threats within human hearing range would not. It seems to me that to state it as simply as that almost demonstrates the reasons why I decline to follow the interpretation of the section enunciated in R. v. Wallace. It is my view that the language of the indictment in the instant case does comply with the requirements of s. 331(1)(a) and it is not liable to be quashed at this time.
In R. v. Vallilee, at p. 414, Martin J.A. speaking for the Ontario Court of Appeal, said with respect to s. 338(1) (obtaining property by fraud):
In my view, the meaning of the section must be gathered from the ordinary meaning of the words used. The interpretation of the section ought not to be encumbered by concepts which were in the outgrowth of excessively technical doctrines relating to the offence of larceny which no longer have any application under our Criminal Code.
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I would allow the appeal, set aside the judgment of the Court of Appeal and restore the conviction.
Appeal dismissed, MARTLAND, JUDSON and PIGEON JJ. dissenting.
Solicitor for the appellant: K.W. MacKay, Regina.
Solicitors for the respondent: Wellman, MacIsaac & Graf, Regina.
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