Doré v. Attorney General of Canada, [1975] 1 SCR 756

Supreme Court of Canada

Doré v. Attorney General of Canada, [1975] 1 S.C.R. 756

Date: 1974-02-12

Fernand Doré Appellant;

and

Attorney General of Canada Respondent.

*1972: October 25; 1974: February 12.

**Re-hearing: 1974: June 4; 1974: June 28.

*Present: Fauteux C.J. and Abbott, Martland, Ritchie and Pigeon JJ.

**Re-hearing: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Criminal law—Employee of Crown corporation—Payments from person dealing with corporation—Offences part of the same transaction—Conviction on several counts—Multiplicity—Right of accused to be heard prior to sentencing—Criminal Code, 1953-54 (Can.), c. 51, ss. 11, 102(1)(a)(ii), 102(1)(c) and 103—Canadian Bill of Rights, 1960 (Can.), c. 44.

Appellant was employed by the CBC as Director of Youth Programs and was responsible for supervising certain broadcasts. He screened films which producers offered to the Corporation and rejected them or recommended that they be accepted by the Corporation. Two firms had a number of their films accepted, the scripts of some of which had been prepared by appellant who received several sums of money from these firms on various occasions. Some of the payments were made in cash without a receipt being required and others were made through a company registered in the name of a Miss Laberge, who sent all the moneys that she received to appellant. Appellant was acquitted in the Court of Sessions of the various offences with which he was charged, but the Quebec Court of Appeal convicted him of six offences under ss. 102(1)(a)(ii), 102(1)(c) and 103 of the Criminal Code, and sentenced him to two years of imprisonment without his having an opportunity to be heard on the matter of sentence, either personally or through counsel. Appellant appealed to this Court alleging that he was not an “official” within the meaning of the Criminal Code by virtue of the Broadcasting Act and also on the grounds of multiplicity of convictions for the same act and the failure of the Court of Appeal to hear him before imposing sentence.

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Held: The appeal should be allowed in part.

Per Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ. (after re-hearing): The appeal should be allowed on the ground that multiple convictions were entered against appellant for the same matters, contrary to the principle in Kienapple v. The Queen, and the case should be remitted to the Quebec Court of Appeal to pass sentence on the accused in respect of the two counts on which he stands convicted but only after hearing submissions on his behalf.

Per Ritchie J. (after re-hearing): Having regard to the concession made by counsel for the respondent to the effect that this case was governed by Kienapple v. The Queen, the matter should be disposed of in the manner proposed by Laskin C.J.

Per Fauteux C.J. and Abbott and Ritchie JJ. (after the first hearing): This Court has not established as a principle that an individual is punished more than once for the same offence when, as here, he is convicted of more than one offence committed upon the same act. The provisions of s. 11 of the Criminal Code refer to an act or omission which is an offence under more than one Act, and not a transaction which constitutes several offences.

Every judgment must be read as applicable to the particular facts, proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides. The decision arrived at in Kienapple cannot have any bearing on the question of law that arises in the case at bar.

In the particular circumstances of the case it is only where there is only one offence that there be any question of pleas of autrefois acquit or autrefois convict, of res judicata or of maxims used to limit multiplication of convictions, when the acts complained of, constituting but one offence, cannot result in more than one conviction.

Appellant’s contention that, in convicting him, the Court of Appeal imposed sentence on him without affording him an opportunity to be heard on the matter, personally or through his counsel, is a valid

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one, as this Court found in Lowry and Lepper v. The Queen, [1974] S.C.R. 195 that such a right existed, in light of s. 2(e) of the Canadian Bill of Rights, 1960 (Can.), c. 44.

Per Martland J. (after the first hearing): In the light of the decision in Kienapple, the present appeal should be disposed of in the manner proposed by Pigeon J.

Per Pigeon J. (after the first hearing): Appellant argues that under the statute governing the CBC, that is s. 26 of c. 22 of the Broadcasting Act, 1958, he is not an “official”. Though in the French version of ss. 102 and 103 of the Criminal Code, the word used is «fonctionnaire», as in the indictment, in the English version the word “official” is used, while in the English version of the Broadcasting Act the expression used is “officers and employees”. Since this expression is not defined therein, it must be taken in its ordinary meaning. The exception found at the beginning of s. 27, certainly does not extend the scope of s. 26, to which it refers. In the Criminal Code, on the other hand, the word “official” (fonctionnaire) is given a special definition which is complemented by those of “office” and “public department”, in para (e) and (d) s. 99, and subs. (15) of s. 2. From these definitions it is clear that the CBC is a public department under the Criminal Code, though it is not under various administrative statutes. The wording of the Broadcasting Act accordingly does not prevent appellant from being an official within the meaning of the Criminal Code, because at the time in question he had employment in a “public department”.

It is not necessary to consider in what circumstances an official may accept payment for work done for someone other than the public department which employs him. Under para. (c) of subs. (1) of s. 102 of the Criminal Code, it is sufficient for an offence to be committed that the official accepts a benefit from anyone having business dealings with the government, “unless he has the consent in writing of the head of the branch of government that employs him or of which he is an official, the proof of which lies upon him”.

Even admitting that the accused received from the persons named in the indictment only the true value of the services rendered outside his working hours, he committed an offence under s. 102(1)(c) of the Criminal Code because he received the benefit with-

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out the written consent of the head of the branch of government which employed him. A salary received for manual or intellectual labour is a benefit within the meaning of the Income Tax Act, and it is no different under the Criminal Code. So far as exercise of influence is concerned, the clandestine nature of the transaction is clear proof of the guilty intent of appellant.

The three counts dealing with the sums received from Artek Film Productions, Paul Legault and André Legault, like the three other counts, are based on the same act viewed in different ways, and the principle stated in s. 11 of the Criminal Code must be applied. In Kienapple v. The Queen, a case on which all members of this Court sat, the majority judgment follows the principle of R. v. Siggins, [1960] O.R. 284, to the effect that conviction is a bar to all further proceedings for the same offence. This Court cannot uphold more than one conviction against appellant for what is in substance the same matter, namely the unlawful taking of sums of money from persons having dealings with the government of which he was an official. As the Court trying the case accepted the sincerity of the deposition given by the accused, the sum mentioned in the indictment should be reduced to the amount admitted by him i.e. $12,000.

[Kienapple v. The Queen, [1975] S.C.R. 729; Lowry and Lepper v. The Queen, [1974] S.C.R. 195; Jones et Maheux v. Gamache, [1969] S.C.R. 119; The Queen v. Sheets, [1971] S.C.R. 614; Martineau v. The Queen, [1966] S.C.R. 103; Sommers v. The Queen, [1959] S.C.R. 678; The King v. Quon, [1948] S.C.R. 508; Regina v. Siggins, [1960] O.R. 284; Lake v. The Queen, [1969] S.C.R. 49, referred to.]

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec[1], reversing a judgment of acquittal handed down by the Court of Sessions. Appeal allowed in part and record returned to the Court of Queen’s Bench for sentencing after appellant has been heard.

Morris J. Fish, for the appellant.

Bruno J. Pateras, for the respondent.

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On the hearing the judgment of Fauteux C.J. and Abbott and Ritchie JJ. was delivered by

CHIEF JUSTICE FAUTEUX—Appellant was arraigned on an indictment containing several counts, only six of which relate to this appeal. These counts may be briefly summarized as follows.

On the first three counts he was charged with having, in Montreal and elsewhere, at various times between September 1, 1960 and June 30, 1963, being or in his capacity as an official of the Government of Canada employed by the CBC, accepted from Artek Film Productions and its agents Paul Legault and André Legault, who had business dealings with the Government of Canada, various sums of money amounting to a total of $27,318, (i) some as commissions, rewards, advantages or benefits, without having obtained the consent in writing of the head of the branch of government, contrary to the provisions of s. 102(1)(c)—now s. 110(1)(c)—of the Criminal Code, (ii) the remainder as loans, rewards, advantages or benefits, as consideration for cooperation, assistance and exercise of influence in connection with the transaction of business, the granting of contracts, contrary to the provisions of s. 102(1)(a)(ii)—now s. 110(1)(a)(ii)—of the Criminal Code; and finally, of having, by accepting the sums of money paid as consideration for cooperation, assistance and exercise of influence in connection with the transaction of business with the Government, committed a breach of trust contrary to the provisions of s. 103 of the Criminal Code—now s. 111.

On the three other counts he was charged with the same offences, with, however, some differences as to: (i) the total amount of the various sums accepted, i.e. $7,200, (ii) the persons from whom he accepted them, i.e. Armand Serge Roy and Serge Roy Productions Ltée, and (iii) the period in which the offences were committed, i.e. between 1959 and 1962.

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At the conclusion of the trial appellant was acquitted on all counts by Judge Lagarde of the Court of Sessions of the Peace.

The Attorney-General of Canada appealed against this verdict of acquittal, as permitted on a question of law by the combined provisions of ss. 584 and 601—now ss. 605 and 624. This appeal was however limited to the six counts based on the aforementioned sections.

The Court of Appeal, then composed of Tremblay C.J. and Hyde and Rivard JJ., allowed this appeal, convicted the accused on the counts covered by the appeal and, proceeding to impose sentence, sentenced the accused to two years’ imprisonment on each count, all terms to be served concurrently.

Appellant appeals against this unanimous judgment.

In an opinion well-founded both on the facts and in law, and concurred in by all his colleagues, Rivard J.A. stated the reasons for the decision of the Court of Appeal.

On the facts: I do not propose to restate all the facts revealed by the evidence, and more specifically, the admissions and explanations of the accused whose version, accepted by Judge Lagarde, has, on the different interpretation given by the trial court and the Court of Appeal to the legal consequences arising from that evidence, served as the basis for an acquittal in the Court of Sessions and a conviction in the Court of Appeal. Limiting myself to the detailed analysis of the evidence by Rivard J.A. and adopting the conclusions reached by his colleagues and himself, I shall be content to give a broad outline of the essential and incontrovertible facts in the record, so far as required for the consideration and disposition of those grounds of appeal which it is proper to consider.

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During the periods mentioned in the counts of the indictment appellant was employed by the CBC and was responsible for supervising “youth” broadcasts in the Montreal area. He had to screen films offered to the CBC for such broadcasts by producers. On the basis of the opinion which he formed about those films, Doré was required to reject them or recommend that they be accepted by the CBC, which by his own admission trusted him completely. Acceptance of the films thus virtually depended on his opinion and his recommendation. During these periods also, Artek Film Productions and Serge Roy Productions Ltée, firms engaged in the production of films, had business dealings with the Government of Canada, offering films to the CBC for, among other things, the “youth” broadcasts. Incontrovertible proof resulting from the admissions of the accused, or corroborated by those admissions, established that these two firms managed to get numerous films accepted; that the scripts for some of the films produced by Serge Roy Productions Ltée had been prepared by Doré, who as part of his duties had to pass judgment on them; that the latter had received several sums of money from these firms on various occasions, either as gifts without having obtained written consent from his superiors, or as loans, rewards, advantages or benefits as consideration for his cooperation, assistance and exercise of influence; that there was definite clandestinity in the methods used to transfer these sums to Doré, some payments being made to him in cash at his residence without a receipt being required or given in exchange, and others being made through a company he decided to form under the name of Scripto Productions, which he registered in the name of one Miss Laberge, who sent him all the moneys she received; that Doré’s name did not appear in the books of either Artek Film Productions or Serge Roy Productions Ltée to justify these disbursements, which were only referred to as gratuities; and that by his own admission Doré lied deliberately to the R.C.M.P. officers who went to question him regarding certain large sums paid to him by Artek Film Productions when he was in Paris.

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Concluding his review of the facts Rivard J.A. stated, in reference to the testimony of the accused:

[TRANSLATION] “This testimony shows beyond any doubt that the accused is guilty on the counts covered by ss. 102(1)(a), 102(1)(c) and 103”.

That statement has in no way been shown to be erroneous.

On the law: I have nothing to add to the reasons which Rivard J.A., relying on well‑established authorities, stated on behalf of the Court of Appeal in disposing of the relevant questions of law in this case. Indeed, of all the grounds of law argued against the judgment of the Court of Appeal in this Court only two, in my opinion, require further consideration. According to appellant the Court of Appeal erred (i) in convicting the accused on an indictment which rendered him liable to be punished more than once for the same act, and (ii) in proceeding to impose sentence without affording him an opportunity to be heard on the matter, either personally or through counsel.

In support of the first ground appellant relies on s. 11 of the Criminal Code and on the judgment of this Court in The King v. Peter Quon[2]. I should say at once, with all due respect for the contrary opinion, that in my view, and for the following reasons, the decision of this Court in the Quon case is of no assistance to appellant. Quon was charged in the same indictment with (i) having, while armed with a revolver, robbed a certain Sam Lun, and (ii) carrying a firearm that can be concealed on the person while in the process of committing an offence. It was admitted that these two charges related to one and the same act, and that the firearm referred to in both counts was the same. Quon pleaded guilty on the first count and not guilty on the second. He was sentenced to two years on the first and,

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having been convicted on the second, sentenced to a further term of two years. The Ontario Court of Appeal quashed the conviction on the second count[3], and the appeal brought to this Court by the Crown against this judgment was dismissed. The ratio of the decision in the Court of Appeal and in this Court related solely to interpretation of the words “any criminal offence” or “acte criminel” in the context of s. 122(1), both versions of which are worth citing:

122. (1) Quiconque a sur soi une carabine, un fusil de chasse, un pistolet, un revolver ou quelque arme à feu qui peut être dissimulée sur la personne pendant qu’il commet un acte criminel est coupable d’une infraction au présent article et passible d’emprisonnement pendant au moins deux ans en sus de toute peine à laquelle il peut être condamné pour l’infraction en premier lieu mentionnée; et une infraction au présent article est punissable, soit sur mise en accusation, soit sur déclaration sommaire de culpabilité, de la même manière que pour l’infraction en premier lieu mentionnée.

122. (1) Every one who has upon his person a rifle, shotgun, pistol, revolver or any firearm capable of being concealed upon the person while committing any criminal offence is guilty of an offence against this section and liable to imprisonment for a term not less than two years in addition to any penalty to which he may be sentenced for the first mentioned offence, and an offence against this section shall be punishable either on indictment or summary conviction in the same manner as the first mentioned offence.

All that was decided by the two Courts was that the words “any criminal offence” or “acte criminel”, in the context of that particular section, had a limited meaning, and did not include a criminal offence an essential element of which was the possession of a firearm that may be concealed on the person. I do not see how it can be deduced from the interpretation given to that section that the Court established as a principle that an individual is punished more than once

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for the same offence when he is convicted of more than one offence committed upon the same act, as occurred in the case at bar.

Neither is appellant’s case better advanced by the provisions of s. 11 of the Criminal Code. That section, the wording of which has not been altered, prescribes:

11. Where an act or omission is an offence under more than one Act of the Parliament of Canada, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.

One must well note at the outset that the section refers to an act or omission which is an offence under more than one Act, and not, which is quite different, to an act which constitutes several offences. The provisions of this section were recently considered by the Saskatchewan Court of Appeal in R. v. Lavoie[4]. In that case the accused was convicted on two counts of an indictment under the Income Tax Act, R.S.C. 1952, c. 148. The first of these counts charged him with making false or deceptive statements in his tax return, contrary to the provisions of s. 132(1)(a), and the other with having wilfully attempted to evade compliance with the statute and avoid payment of a tax imposed under it, contrary to the provisions of s. 132(1)(b). Lavoie appealed, and in support of his appeal pleaded, as was done in the case at bar, the provisions of s. 11 and the decision of this Court in Quon. That appeal was rejected by a unanimous decision of the Court. Culliton C.J., delivering the judgment of the Court, referred inter alia to the provisions of s. 11 and said:

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The foregoing section, apart from some differences in wording, is similar to s. 33 of the Interpretation Act, 1889 (U.K.), c. 63, which reads:

When an act or omission constitutes an offence under two or more Acts, or both under an Act and at common law… the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but shall not be liable to be punished twice for the same offence.

In interpreting the effect of this section of the English Interpretation Act, Humphreys J., in R. v. Thomas (1949) 33 Cr. App. R. 200 at p. 204 said:

Mr. Paget has argued that we ought so to read the section that the last word “offence” should be read as meaning “act”, and it was submitted that “act”, “cause” and “offence” all mean the same thing.

In our view that is not correct. It is not the law that a person shall not be liable to be punished twice for the same act; no one has ever said so in any case, and the Interpretation Act does not say so. What the Act says is that a person “shall not be liable to be punished twice for the same offence”. Not only is it not the law, but it never has been the law, and that it is not the law was expressly decided in the highest criminal Court in the land then existing, the Court for the Consideration of Crown Cases Reserved, as far back as 1867, in Morris (1867) L.R. 1, C.C.R. 90; 10 Cox C.C. 480.

It was correctly held that the mere fact that two offences resulted from the same act or acts, and that Lavoie was found guilty of both offences, did not mean that he was being punished twice for the same offence. I would therefore reject appellant’s first ground.

The second ground appears to me to be well-founded. In Lowry and Lepper v. The Queen[5], the question of the right of an accused who has

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been acquitted at first instance and convicted in the Court of Appeal to be heard prior to sentencing, either personally or by counsel, was for the first time considered by this Court in the light of the provisions of s. 2(e) of the Canadian Bill of Rights 1960 (Can.), c. 44. This Court concluded that such a right existed and, although it dismissed the appeal on the merits, ordered that the case be remitted to the Court of Appeal for it to pass sentence after appellants would have been afforded an opportunity to make submissions, either personally or by counsel.

Since writing the foregoing I have seen the addition made into the reasons of our brother Pigeon to the effect that the decision to be rendered in John Edward Kienapple v. Her Majesty the Queen concurrently with the decision in this case has by itself the effect of binding and requiring this Court to invalidate some of the convictions entered in the case at bar by the Court of Appeal. The reason given for this view is that the five majority judges in Kienapple approved an extract from the opinion of Kellock J. in The King v. Quon[6], at pp. 519-20, an extract which MacKay J. cited in extenso in Regina v. Siggins[7], at pp. 285-6, and which is cited in part by our brother in his reasons in the present case. With all due respect for the contrary opinion, I must state that I am completely unable to agree with this view.

At the very outset of the comments which follow on this view, it seems appropriate to reproduce here the text of the two observations of the Earl of Halsbury L.C. in Quinn v. Leathem[8]:

Now, before discussing the case of Allen v. Flood (1898) A.C. 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed

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to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.

Let us now contrast the particular facts of the Kienapple and the Doré cases, and define the question of law to be decided in each on the basis of such particular facts.

Kienapple

Following his trial on an indictment consisting of two counts, one of having had sexual intercourse with a girl under the age of fourteen years, contrary to s. 146(1) of the Criminal Code, and the other of having, in the circumstance, raped the girl, contrary to s. 143 of the Criminal Code, Kienapple was convicted of these two offences by a jury, whose verdict was unanimously upheld by a decision of the Court of Appeal of Ontario. Hence the appeal to this Court, solely on the question of law stated as follows in the judgment granting leave to appeal:

Whether the accused, having been convicted of rape, should in respect to the same single act have been convicted of sexual intercourse with a female under the age of 14 not being his wife?

Doré

As indicated at the beginning of these reasons, the case concerned numerous transactions, conducted in different cities at various times over a period of about three years, implicating two different groups of persons and involving the payment of various sums of money given either as rewards or as remunerations or loans for totals of $27,318, paid to appellant by one group, and $7,200, paid by the other. The question of law raised by these particular facts is simply whether the Court of Appeal erred in convicting appellant on all the

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counts which had been covered by the appeal to the Court of Appeal and which charged appellant with the non-interchangeable offences described in ss. 102(1)(a)(ii), 102(1)(c) and 103 of the Criminal Code.

Hence it can be seen that the question of law raised by each of these appeals, on the basis of the particular facts of each case, is strikingly different; and this, in my view, lends singular relevance to the first observation of the Lord Chancellor in Quinn v. Leathern, supra. The same is true of his second observation. Indeed, all that is decided by the judgment to be rendered in Kienapple, and consequently the only question of law as to which that judgment can be authority on the aspect which concerns us, is that a case in which the accused is tried concurrently for having had sexual intercourse with a girl under the age of fourteen years, and having also, in the circumstance, raped the girl, will fall, if all these facts are established, under s. 143 and not under s. 146(1) of the Criminal Code, which would then not be applicable. The fundamental premise of such a decision lies essentially in the interpretation given to the intent of Parliament with respect to these provisions of the Code the effect of which, in the circumstances stated, is to wholly merge the offence specified in s. 146(1) with that of rape. This may be seen from the following extracts taken, first, from the early part, and second, from the conclusion itself, of the decision:

From the beginning:

It is plain, of course, that Parliament has defined two offences in sections 143 and 146(1) but there is an overlap in the sense that one embraces the other when the sexual intercourse has been with a girl under age 14 without her consent.

From the conclusion:

In the circumstances of the present case, the superadded element of age in section 146(1) does not operate to distinguish unlawful carnal knowledge from rape. Age under 14 is certainly material where consent to the sexual intercourse is present; but once that is

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ruled out, as it is in the present case, it becomes meaningless as a distinguished feature of the offence of rape and unlawful carnal knowledge.

Accordingly, I cannot see how that decision could have any bearing on the question of law in Doré considering the particular facts of the latter case.

Nor do I see how the complete quotation from the reasons of Kellock J. in Quon, supra, as well as the approval of this quotation by the judges of the majority in Kienapple, can bind and oblige this Court, in the instant case, to put aside from the convictions entered in the Court of Appeal those which relate to the offences stated in ss. 102(1)(a)(ii)—reward for the exercise of influence—and 103—breach of trust—so as to maintain only those involving the offence stated in s. 102(1)(c)—accepting advantages without the written consent of superiors—without, be it noted in passing, furnishing at the same time reasons for so choosing among such non-interchangeable offences.

The fact that there may be nothing exceptionable in the remarks of Kellock J. does not decide the question. First, it should be noted that they were made obiter, and moreover concerned a point which the three other judges who with Kellock J. composed the majority did not feel it necessary or even appropriate to deal with and which, what is more, was disposed of by Roach J.A. as follows in concluding his judgment on behalf of the Court of Appeal in the Quon case:

The words “any criminal offence” must be given the modified meaning which I earlier stated. To do so avoids repugnancy and inconsistencies and results in an “harmonious whole”. That interpretation is “consonant to reason” and in my firm opinion gives to the section the full effect which Parliament intended.

I am quite aware that this decision is in conflict with the decision of the Court of Appeal of Manitoba in R. v. Maskiew, (1946) 1 D.L.R. 378, 85 Can. C.C. 138, 53 Man. R. 281, [1945] 3 W.W.R. 529. Counsel for the Crown in this Court cited that decision. Counsel for the appellant faced it, and pointed out that the

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Court there simply rejected the argument of autrefois convict and that the defense of res judicata was not argued. He cited such cases as Wemyss v. Hopkins (1875), L.R. 10 Q.B. 378; Reg. v. King, (1897) 1 Q.B. 214, and in our own Courts R. v. Quinn (1905), 10 Can. C.C. 412, 11 O.L.R. 242, and R. v. Sweetman, (1939), 2 D.L.R. 70, O.R. 131, 71 Can. C.C. 171. On my interpretation of s. 122 neither the defense of autrefois convict nor that of res judicata has any application. The admitted facts do not bring the accused within that section.

On the basis of the interpretation given to ss. 143 and 146(1) by the majority judges in Kienapple—according to which in the circumstances under consideration the offence stated in s. 143 embraces that stated in s. 146(1)—I do not see why the conclusion reached by Roach J.A. in Quon would not also apply to that Kienapple case.

Whether it was, as he pointed out, in light of the general principles of the criminal law that Kellock J. approached the interpretation of s. 122 of the Criminal Code, R.S.C. 1927, c. 36, it does not follow that he did not, in common with his colleagues of the majority, base his opinion specifically on the rule of interpretation that the grammatical and ordinary sense of a word must yield if absurdity would result.

In my opinion, and with deference, it is going beyond what was intended by Kellock J. to apply what he said about the case of an individual who, having already been the subject of criminal proceedings, is subsequently prosecuted again on another aspect of the same matter, to the case of an accused who is tried once on several counts simultaneously—for the latter is clearly the situation in Kienapple and Doré. In the two decisions which were cited by the learned judge in support of his view, the proceedings were clearly subsequent, and not simultaneous, as may be seen from the accurate summary contained in the headnote in each case.

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In Wemyss v. Hopkins[9]:

The appellant was summarily convicted under s. 78 of 5 & 6 Wm. 4, c. 50, for that he, being driver of a carriage on a highway, by negligence and wilful misconduct, to wit, by striking a horse ridden by the respondent, caused hurt and damage to the respondent; he was afterwards convicted, on the same facts, under s. 42 of 24 & 25 Vict. c. 100, for unlawfully assaulting the respondent:

Held, that the first conviction was a bar to the second.

In The Queen v. R.J. Elrington et al.[10]:

Where, under 9 G. 4, c. 31, ss. 27-29, a complaint of assault or battery has been made to two justices of the peace, who dismiss the complaint and give the party a certificate accordingly, the certificate may be pleaded in bar to an indictment, founded on the same facts, charging assault and battery accompanied by malicious cutting and wounding so as to cause grievous or actual bodily harm.

I note that the dismissal of the subsequent prosecution was based, (i) in the Wemyss case, supra, on the principle which we have incorporated in our Code in s. 11, supra—formerly s. 15—, a principle which Lord Blackburn mentions in the case by ascribing to it the meaning and effect given to s. 11 in the Lavoie case, supra, and (ii), in the Elrington case, supra, on the provisions of the Imperial statute 9 Geo. IV, c. 31, ss. 27-29, the tenor of which was reproduced substantially in our Criminal Code in ss. 733 and 734, as they stood when the Quon decision was rendered.

733. If the justice, upon the hearing of any case of assault or battery upon the merits where the information is laid by or on behalf of the person aggrieved, under the last preceding section, deems the offence not to be proved, or finds the assault or battery to have been justified, or so trifling as not to merit any punishment, he shall dismiss the complaint and shall forthwith make out a certificate under his hand stating the fact of such dismissal, and shall deliver such

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certificate to the person against whom the complaint was preferred. R.S., c. 146, s. 733.

734. If the person against whom any such information has been laid, by or on behalf of the person aggrieved, obtains such certificate, or, having been convicted, pays the whole amount adjudged to be paid or suffers the imprisonment, or imprisonment with hard labor, awarded, he shall be released from all further or other proceedings, civil or criminal, for the same cause. S.R., c. 146, s. 734.

It should also be noted that at the conclusion of his remarks Kellock J. hastened to add:

It is obvious of course that Parliament may, if it sees fit, constitute two separate offences out of the same act or omission or make part of an act or omission or one or more of a series of acts or omissions a separate offence additional to that constituted by the complete act or omission or the whole series.

Siggins

In that case, supra, the Court of Appeal of Ontario, composed of Porter C.J.A. and MacKay and Morden JJ.A., had to determine whether a person stealing an article, who has had it in his possession continuously since the theft, can be charged and convicted of both theft and unlawful possession. The members of the Court held that he could not, but were divided on the limits of the decision and the reasons supporting it. On the one hand, MacKay J.A., in whose opinion Porter C.J.A. concurred, said first at p. 285:

I am of the opinion that in the circumstances of this case, the convictions for both theft and possession cannot stand…

and after citing the foregoing observations of Kellock J., said the following, at p. 286, concerning the decision rendered by the British Columbia Court of Appeal in R. v. Van Dorn:

Counsel for the Crown referred us to R. v. Van Dorn (1956), 116 C.C.C. 325, in which it was held that convictions for both offences, i.e. theft and possession, could stand where the possession charged is not

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so intimately identified in time and place as to form part of the theft itself. It may be that in certain circumstances this might be so. But in a case such as the present where the appellant was the actual thief and had had continuous possession of the motor vehicle from the time it was stolen by him, I think the two offences arise from the one act. The same act that constituted the theft constituted the offence of having unlawful possession. To apply the principles of the Quon case it is of course necessary to treat the unlawful possession, whether, it be for a matter of minutes or months, as one continuing offence. In my opinion this is so.

Morden J.A., on the other hand, in contrast with his two colleagues, made no mention of Quon, supra, rejected the principle in Van Dorn, supra, and, basing himself on decisions rendered by this Court prior to substitution of s. 296—unlawful possession—for s. 399—receiving and retaining stolen goods—, concluded as follows, at p. 289:

Having regard to the views expressed by the majority of the Judges in the Clay case as to the effect to be given to former s. 399, I cannot accept the argument that parliament in enacting the present s. 296 to replace the former s. 399, intended that a person could be convicted of the offence of theft as well as guilty possession of the thing stolen.

Accordingly, what emerges from the reasons stated by MacKay J.A., and concurred in by Porter C.J.A., is that in the particular circumstances of the case there was only one offence, and that only in such circumstances would the Quon, supra, principle apply. So, and I say it in all deference, I cannot really see why in such circumstances there can be question of pleas of autrefois acquit or autrefois convict, of res judicata or of maxims used to limit multiplication of convictions, when the acts complained of, constituting but one offence, cannot result in more than one conviction.

For these reasons, I would dismiss the appeal on the merits and order that the case be remitted to the Court of Appeal for it to impose the sentences after giving appellant an opportunity,

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personally or through counsel, to make representations on the subject.

MARTLAND J.—Had it not been for the judgment of the full Court in the case of John Edward Kienapple v. Her Majesty The Queen, to be rendered concurrently with the judgment in the present appeal, I would have agreed with Chief Justice Fauteux in holding that the appellant’s appeal against his convictions should be dismissed. However, in the light of the decision in the Kienapple case, I feel obligated to agree with my brother Pigeon in holding that the present appeal should be disposed of in the manner which he has proposed.

PIGEON J.—This appeal is against a decision of the Court of Appeal of Quebec, quashing the acquittal ordered by the Court of Sessions, and convicting appellant of offences under ss. 102 and 103 (now ss. 110 and 111) of the Criminal Code. The first three counts of the indictment against appellant read as follows:

[TRANSLATION] (1) In the city and district of Montreal, and elsewhere, between September 1, 1960 and June 30, 1963, FERNAND DORE, being an official of the Federal Government of Canada, to wit: Director of Youth Programmes for the Montreal district of the CBC, a federal Crown corporation, did unlawfully accept from Artek Film Productions, Paul Legault and André Legault, loans, rewards, advantages or benefits, and more particularly sums of money totalling $27,318.00, as consideration for cooperation, assistance and the exercise of influence in connection with the transaction of business with the Government, and more particularly the granting of contracts by the CBC to the said ARTEK FILM PRODUCTIONS, committing thereby an offence contrary to the provisions of section 102(1)(a)(ii) of the Criminal Code.

(2) In the city and district of Montreal, and elsewhere, between September 1, 1960 and June 30, 1963, FERNAND DORE, being an official of the Federal Government of Canada, to wit: Director of Youth Programmes for the Montreal district of the CBC, a federal Crown corporation, did accept from persons having dealings with the Government,

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namely: ARTEK FILM PRODUCTIONS, PAUL LEGAULT and ANDRE LEGAULT, commissions, rewards, advantages or benefits, and more particularly sums of money totalling $27,318.00, without having the consent in writing of the head of the branch of government that employs him, committing thereby an offence contrary to the provisions of section 102(1)(c) of the Criminal Code.

(3) In the city and district of Montreal, and elsewhere, between September 1, 1960 and June 30, 1963 FERNAND DORE, being an official of the Federal Government of Canada, to wit: Director of Youth Programmes for the Montreal district of the CBC, a federal Crown corporation, did commit a breach of trust in connection with the duties of his office, by accepting from ARTEK FILM PRODUCTIONS, PAUL LEGAULT and ANDRE LEGAULT loans, rewards, advantages or benefits, and more particularly sums of money totalling $27,318.00, as consideration for cooperation, assistance and exercise of influence in connection with the transaction of business with the Government, and more particularly the granting of contracts by the CBC to the said ARTEK FILM PRODUCTIONS, committing thereby an indictable offence contrary to the provisions of section 103 of the Criminal Code.

The three other counts on which conviction was pronounced are similar in every respect, except that they concern sums of money, totalling $7,200, received from Serge Roy Productions Ltée and from Armand Serge Roy, between 1959 and 1962.

It should be noted at the outset that, in finding appellant guilty, Rivard J.A. who wrote the unanimous opinion of the Court of Appeal, relied essentially on the deposition of the accused, which was accepted as sincere by the trial judge. There is thus no disagreement as to the facts, which is as it should be since an appeal against an acquittal may only be made on a point of law.

The first ground put forward before us was that under the statute governing the CBC, appellant was not an “official”. The enactment in force at the time was subs. (1) of s. 26 of the Broadcasting Act (1958 (Can.), c. 22, now replaced by R.S.C., c. B-11, s. 38(2)). It reads as follows:

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26. (1) The Corporation may on its own behalf employ such officers and employees as it considers necessary for the conduct of its business, at such remuneration and upon such other terms as it deems fit, but the officers and employees so employed are not officers or servants of Her Majesty.

Though it is true that, in the French version of ss. 102 and 103 of the Criminal Code, the word used is “fonctionnaire”, as in the indictment, it must be noted that the word “official” is used in the English version, while in the English version of the Broadcasting Act the expression used is “officers and employees”. Furthermore, this expression is not defined therein, and must accordingly be taken in its ordinary meaning.

In the Criminal Code, on the other hand, the word “official” (fonctionnaire) is given, for the purposes of the Part with which we are concerned, a special definition which is complemented by those of “office” and “public department”. These provisions are para. (e) and (d) of s. 99 (now s. 107), and subs. (34) of s. 2:

(e) “official” means a person who

(i) holds an office, or

(ii) is appointed to discharge a public duty;

(d) “office” includes

(i) an office or appointment under the government;

(ii) a civil or military commission, and

(iii) a position or employment in a public department;

(34) “public department” means a department of the Government of Canada or a branch thereof or a board, commission, corporation or other body that is an agent of Her Majesty in right of Canada.

From these definitions it is clear that the CBC is a public department under the Criminal Code, though it is not under various administrative statutes. Indeed, subs. (1) of s. 27 of the Broad-

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casting Act (now replaced by R.S.C., c. B-11, s. 40(1)) provides:

27. (1) Except as provided in subsection (1) of section 26, the Corporation is, for all purposes of this Act, an agent of Her Majesty, and its powers under this Act may be exercised only as an agent of Her Majesty.

The exception found at the beginning of this provision certainly does not extend the scope of the section to which it refers. The latter does not contain any special definition, and so must be taken in the ordinary meaning of the words used. As to this ordinary meaning, the following observation was made in the reasons issued in Jones and Maheux v. Gamache[11], at p. 132:

[TRANSLATION]… it must be pointed out that the word “fonctionnaire” does not necessarily mean “civil servant”, although this is indeed the meaning ordinarily given to it at the present time.

This remark was made in connection with the meaning of the word “fonctionnaire” in para. (c) of s. 29 of the Exchequer Court Act. It may well be that the effect of the wording of the Broadcasting Act is to exclude the employees of the CBC from the scope of this provision, as well as from subs. (1) of s. 3 of the Crown Liability Act. It is reasonable to suppose that, corporate status being conferred upon their employer, the intention was that the latter should be answerable for them, not the government.

It is quite a different thing to assume that Parliament wished to grant them immunity from the Part of the Criminal Code entitled “Offences against the Administration of Law and Justice”. This assumption is even less justified as the word “official” is there given a meaning which goes considerably beyond the ordinary meaning. It need only be noted that in The Queen v. Sheets[12] this Court held that a member of a municipal council is an official within the meaning of this provision, though an elected representative, not an employee of the

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municipality. Identical decisions were given in Martineau v. The Queen[13] in respect of a member of a Legislative Council, and in Sommers v. The Queen[14] regarding a Minister of the Crown. I conclude, therefore, that the wording of the Broadcasting Act did not prevent the appellant from being an official within the meaning of the Criminal Code, because at the time in question he had employment in a “public department”.

Secondly, it was argued that as the trial judge accepted the version of the facts given by the accused, it must be admitted that the sums received by the accused were paid, not in consideration of exercise of influence in connection with the transaction of business with the government, but in payment for work done. On this point, Mr. Justice Rivard correctly observed:

[TRANSLATION] There is no doubt that an employee is entitled to work for other persons outside his normal working hours, provided that it is not for persons who do business with the government, and provided that the work done has no direct influence on decisions and recommendations to be made by him in his official capacity.

In the case at bar, I do not feel it is necessary to consider in what circumstances an official may accept payment for work done for someone other than the public department which employs him. Under para. (c) of subs. (1) of s. 102 Crim. Code (second and eighth counts of the indictment), it is sufficient for an offence to be committed that the official accepts a benefit from anyone having business dealings with the government, “unless he has the consent in writing of the head of the branch of government that employs him or of which he is an official, the proof of which lies upon him”. Only the offence under para. (a) (first and seventh counts of the indictment) requires that the benefit be received “as consideration for cooperation, assistance, exercise of influence or…”

[Page 780]

As concerns the second and eighth counts of the indictment, therefore, even admitting that the accused received from the persons named in the indictment only the true value of services rendered outside his working hours, he committed the offence because he received the benefit without the written consent of the head of the branch of government which employed him.

Clearly, the fact that a sum of money or other value represents only the equivalent of the benefits conferred does not prevent it from being “a commission, reward, advantage or benefit”. The words “commission” and “reward” suggest the idea of compensation for services rendered. A salary received for manual or intellectual labour is undoubtedly a benefit within the meaning of the Income Tax Act, and there is no reason why it should be otherwise under the Criminal Code. Only a loan, which requires the return of the sum received, may be regarded differently, and it is worth noting that it is not mentioned in para. (c), where the word “commission” is used instead of the word “loan” in para. (a). This difference is significant.

Under para. (a) it is proper to consider whether the sum paid exceeds the equivalent of the value given, because this may be important in deciding whether it is in consideration of an exercise of influence. This point does not arise under para. (c), because only an authorization from the head of the branch of government prevents the official from being regarded as putting himself in a conflict of interest situation by accepting compensation of any kind from a person dealing with the government.

In the case at bar it is unnecessary to consider whether the evidence has to show guilty intent on the part of the official who is in breach of para. (c). Here the clandestine nature of the transaction is clear proof of such guilty intent. It would be a gross misinterpretation of the standards of honesty required in public life to accept

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as an explanation the accused’s contention that such clandestinity was prompted by the desire to defraud the tax collector.

Having found that the accused was properly convicted on the two counts based on para. (c) of subs. (1) of s. 102, it does not appear to me necessary to consider whether the facts supported his conviction on the other counts. The offences in question are all equally serious, they carry exactly the same penalty. There is thus no need to consider whether the most serious offence has been established. In my view this is a case for application of the principle stated in s. 11 of the Criminal Code, in the following terms:

11. Where an act or omission is an offence under more than one Act of the Parliament of Canada, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.

The three counts dealing with the sums received from Artek Film Productions, Paul Legault and André Legault are, like the three other counts, based on the same act viewed in different ways. This act consisted of having, while an official, accepted this reward from these persons. In the first count of the indictment the act is characterized as a crime because the consideration for it was an alleged exercise of influence in connection with the transaction of business with the Government. In the second count the same act is characterized as a crime because it was done without the consent in writing of the head of the branch, and involved persons having dealings with the Government. Finally, in the third count this act is characterized as a crime on the same basis as in the first, but with the further allegation that it constituted a breach of trust.

In The King v. Quon[15], which upheld a deci-

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sion quashing a conviction for unlawful possession of a firearm, on the ground that such conviction had been pronounced concurrently with a conviction for armed robbery involving possession of the same weapon at the same time, Kellock J. said (at pp. 519-520):

In approaching the question as to the proper view to be taken of the meaning of the statute, I think there are well settled principles to be kept in mind. The first is illustrated by Wemyss v. Hopkins (1875) L.R. 10 Q.B. 378. In that case a complaint was preferred against the appellant under 5 and 6 Wm. IV, c. 50 (1), s. 78, for that being the driver of a carriage on a highway, by negligence or wilful misbehaviour, viz., by striking a certain horse ridden by the respondent, caused her hurt and damage. The appellant was convicted on this charge and fined. Subsequently a complaint was preferred against him under 24 and 25 Vict., c. 100, s. 42, for that he did on the same date as that in question on the first complaint and by reason of the same conduct, unlawfully assault, strike, and otherwise abuse the respondent. On this charge he was also convicted and fined. The question for the court was whether, the appellant having been convicted on the first, could also be convicted on the second complaint. It was held he could not, Blackburn, J., at p. 381 said:

The defence does not arise on a plea of autrefois convict, but on the well established rule at common law, that when a person has been convicted and punished for an offence by a court of competent jurisdiction, transit in rem judicatam, that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence… It is necessary in the present case to have it proved… that on a former occasion the appellant was charged with the same assault, although not in the same words, yet in terms the same, and that he was then convicted and punished.

The above principle is embodied in section 14 of the Code. The common law principle is as applicable, in my opinion, in the case of two sections of the same statute as in the case of separate statutes.

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There is also to be borne in mind the second principle, as stated by Cockburn, C.J., in Queen v. Elrington (1861) 1 B.&.S. 688 at 696, viz.: “the well established principle of our criminal law that a series of charges shall not be preferred and, whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form”. Section 907 embodies this latter principle.

What was at that time s. 907 of the Criminal Code is now s. 537, which deals with the defence of autrefois acquit or autrefois convict. This provision applies to a case where, provided it can be made identical by amendment, “the matter… is the same, in whole or in part”.

Relying essentially on the aforementioned opinion of Kellock J., the Court of Appeal of Ontario held in Regina v. Siggins[16] that it should quash a conviction for unlawful possession of certain goods, pronounced concurrently with a conviction for theft of the same goods. MacKay, J.A., said (at p. 285):

The offence of theft where the person charged is the actual thief, necessarily involves the taking of possession by him of the article stolen, and the person found in possession of goods which he himself has stolen has also committed the offence of having in his possession goods knowing them to have been stolen.

The Crown is entitled to lay both charges against him, but at the trial, if the jury convict of theft they should not convict on the charge of unlawful possession. If they acquit on the charge of theft they may then consider and, if they see fit to do so, convict on the charge of unlawful possession.

After referring to the opinion of Kellock J., he also noted that subs. (2) (now subs. (3)) of s. 7 of the Criminal Code recognizes defences at common law, even when they are not expressly enshrined in an enactment.

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In Kienapple v. The Queen, a case on which all members of this Court sat, the majority judgment rendered today follows the principle of the Siggins case and Kellock’s opinion above quoted.

On that basis I fail to see how we could uphold more than one conviction against appellant for what is in substance the same matter namely the unlawful taking of sums of money from persons having dealings with the government of which he was an official.

Accordingly, only the conviction on the second and eighth counts should be allowed to stand. Further, as the Court trying the case accepted the sincerity of the deposition given by the accused, the sum mentioned in the second count should be reduced to the amount admitted by him, that is to $12,000 (Lake v. The Queen)[17].

Finally, appellant complains that, the Court of Appeal having found him guilty, sentenced him without giving him an opportunity to make submissions on sentence. This complaint is well‑founded, in the light of our later decision in Lowry and Lepper v. The Queen[18].

For these reasons, I would allow the appeal and quash the conviction on the first, third, seventh and ninth counts, vary the conviction on the second count by reducing the sum mentioned to $12,000, and remit the case to the Court of Appeal of the Province of Quebec for it to pass sentence on the second and eighth counts of the indictment, after hearing the accused.

On the rehearing the judgment of Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ. was delivered by

CHIEF JUSTICE LASKIN—The rehearing ordered in this case pursuant to Rule 61 was limited to the question whether multiple convic-

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tions for the same matters had been entered against the appellant, contrary to the principle in Kienapple v. The Queen[19].

I am of the opinion that the appeal should be allowed on this ground, and that, accordingly, the convictions on counts two and eight only should stand, and that the convictions on counts one, three, seven and nine should be set aside. The case should be remitted to the Court of Appeal of Quebec to pass sentence on the accused in respect of the two counts on which he stands convicted but only after hearing submissions on his behalf, in accordance with the principle of Lowry and Lepper v. The Queen[20].

RITCHIE J.—I have not changed the view which I expressed at the original hearing of this appeal, but having regard to the concession made by counsel appearing on behalf of the Attorney General of Canada at the re-hearing to the effect that this case was governed by the judgment of this Court in Kienapple v. The Queen, I agree that the matter should be disposed of in the manner proposed by the Chief Justice.

Appeal allowed in part.

Solicitors for the appellant: Kaufman, Yarosky & Fish, Montreal.

Solicitor for the Attorney General of Canada: Bruno J. Pateras, Montreal.