R. v. Chaulk (Application), [1989] 1 S.C.R. 369
Francis Darren Morrissette
and Robert Matthew Chaulk Applicants
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada Intervener
indexed as: r. v. chaulk (application)
File Nos.: 21035, 21012.
1989: March 13*.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka and Cory JJ.
on appeal from the court of appeal for manitoba
Jurisdiction -- Applications for leave to appeal -- Supreme Court of Canada jurisdiction -- Determination of applications on the basis of written material without oral hearing -- Supreme Court Act, R.S.C. 1970, c. S-19, as amended, ss. 41, 45.
Criminal law -- Indictable offence -- Applications for leave to appeal -- Supreme Court of Canada jurisdiction -- Determination of applications on the basis of written material without oral hearing -- Criminal Code, R.S.C. 1970, c. C-34, s. 618 -- Supreme Court Act, R.S.C. 1970, c. S-19, as amended, ss. 41, 45.
Applicants, whose murder convictions were upheld on appeal, sought leave to appeal to this Court pursuant to s. 618(1)(b) of the Criminal Code . After filing the application for leave to appeal, counsel for applicant Morrissette argued that, under the newly adopted s. 45 of the Supreme Court Act, the Court did not have jurisdiction to decide the application without according applicant an oral hearing.
Held: The application is dismissed.
The Court held that it had jurisdiction to determine the application on the basis of the written material and without according an oral hearing. It is important to distinguish (1) grounds for appeal from (2) procedure to be followed and the criteria to be applied in deciding whether to grant leave to appeal. The right to appeal to this Court from a judgment dismissing an appeal from a conviction for an indictable offence is conferred by the Criminal Code and not by the Supreme Court Act. Section 41(3) of the Supreme Court Act relates only to the grounds for appeal and, even when read with s. 45, bears no relation to the procedure to be followed or to the criteria to be applied when the Court is deciding whether or not to grant leave. Section 45 was intended by Parliament to establish a procedure of general application and to afford this Court the authority to control its own docket. Hence s. 45, in its present form, should be interpreted in that light.
Cases Cited
Applied: R. v. Gardiner, [1982] 2 S.C.R. 368; Argentina v. Mellino, [1987] 1 S.C.R. 536.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C-34, ss. 618, 620, 621.
Supreme Court Act, R.S.C. 1970, c. S-19, ss. 41, 45 [am. S.C. 1987, c. 42].
APPLICATION challenging the jurisdiction of the Supreme Court of Canada to determine without oral hearing a motion for leave to appeal brought under the Criminal Code . Application dismissed.
G. Greg Brodsky, Q.C., for the applicant Morrissette.
Heather Leonoff, for the applicant Chaulk.
J. G. B. Dangerfield, for the respondent.
S. R. Fainstein, Q.C., for the intervener.
//The Court//
The following is the judgment delivered by
THE COURT -- The issue to be addressed on this application is whether the Court has jurisdiction to decide, on the basis of written materials and without an oral hearing, an application for leave to appeal from a judgment of a court of appeal affirming a conviction for an indictable offence.
I Statutory Provisions
For ease of reference, the relevant statutory provisions may be set out here:
Supreme Court Act
41. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from such judgment is accordingly granted by the Supreme Court.
(2) An application for leave to appeal under this section shall be brought in accordance with paragraph 64(1)(a).
(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.
45. (1) Notwithstanding any other Act of Parliament, an application the Supreme Court for leave to appeal shall be made to the Court in writing and the Court shall
(a) grant the application if it is clear from the written material that the application comes within the provisions of section 41 and does not warrant an oral hearing;
(b) dismiss the application if it is clear from the written material that the application does not come within the provisions of section 41 and does not warrant an oral hearing; and
(c) order an oral hearing to determine the application, in any other case.
Criminal Code
618. (1) A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada
(a) on any question of law on which a judge of the court of appeal dissents, or
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada within twenty-one days after the judgment appealed from is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may, for special reasons, allow.
II Facts
The applicants were convicted of first degree murder and their appeals to the Manitoba Court of Appeal were dismissed. They now seek leave to appeal to this Court pursuant to s. 618(1)(b) of the Criminal Code . Upon filing the application for leave to appeal, counsel for the applicant Morrissette indicated that he took the position that the Court did not have jurisdiction to decide the application for leave to appeal without according him an oral hearing. A hearing was ordered to determine the jurisdictional point, and by order of the Court, notice was given to the Attorney General of Canada and to the provincial Attorneys General of the motion challenging the Court's jurisdiction. The Attorney General of Canada intervened, making both written and oral submissions. At the conclusion of the argument on the jurisdictional issue, the Court gave judgment holding that it did have jurisdiction to determine the application on the basis of the written material and without according an oral hearing and indicated that reasons would follow. The Court also held, however, that in the circumstances, a panel of three judges would hear oral submissions on the application for leave to appeal itself. These reasons deal solely with the question of the Court's jurisdiction.
III Submission of the Applicant
The applicant contends that a literal reading of ss. 41 and 45 of the Supreme Court Act leads to the conclusion that the Court cannot dispose of an application for leave to appeal without an oral hearing where, as in the case at bar, the right to seek leave is conferred by s. 618(1)(b) of the Criminal Code . This argument is based upon s. 41(3) of the Supreme Court Act which expressly provides that no appeal lies to the Supreme Court of Canada "under this section" from the judgment of a court affirming a conviction for an indictable offence. The applicant contends that s. 45 expressly exempts cases which fall within s. 41(3) from the procedure whereby the Court has jurisdiction to dispose of an application for leave to appeal on the basis of written materials and without according an oral hearing. Section 45(1)(a) provides that the Court shall grant the application for leave to appeal where "it is clear . . . that the application comes within the provisions of section 41 . . ." and s. 45(1)(b) provides that the Court shall dismiss the application where "it is clear . . . that the application does not come within the provisions of section 41 . . .". As appeals from conviction for an indictable offence are expressly excluded from s. 41 by virtue of s. 41(3), it will always be clear that the application does not come within s. 41, and the applicant therefore submits that the procedure contemplated by s. 45 can have no application to him.
IV Analysis
It is our view that the applicant's argument is unpersuasive and that a careful analysis of the relevant statutory provisions leads to the conclusion that the Court does indeed have jurisdiction pursuant to s. 45 to determine the application for leave to appeal without affording the applicant an oral hearing.
We do not believe that the approach to interpretation relied upon by the applicant yields the conclusion he urges upon the Court. As counsel for the Attorney General of Canada contended, a strictly literal approach taken to its logical conclusion would produce a highly implausible, indeed absurd result, namely, that the Court could not grant leave without an oral hearing under s. 45(1)(a), but it could refuse leave without a hearing pursuant to s. 45(1)(b). The latter subsection provides that an application is to be dismissed where it is clear from the written materials that it does not come within the provisions of s. 41. The applicant contends that he does not fall within s. 41 and hence, the reference to s. 41 in s. 45(1)(b) would create no impediment to the Court's dismissing the application on the basis of the written material alone. On the other hand, the Court could not grant the application without a hearing, as s. 45(1)(a) only applies to applications coming within s. 41. Parliament could not possibly have intended to require an oral hearing where the Court considers it appropriate to grant the application, but not where the Court decides to dismiss it. A reading of the statute which would distinguish between applications to be granted and applications to be dismissed for procedural purposes should surely be avoided, particularly where the result would be to accord greater procedural rights where the application is to be allowed than where it is to be denied. An intention to produce an unreasonable result should not be imputed to a statute, particularly where another interpretation is available.
To come to a proper understanding of the interaction between ss. 41 and 45 of the Supreme Court Act, it is important to distinguish (1) grounds for appeal from (2) procedure to be followed and the criteria to be applied in deciding whether to grant leave to appeal. The right to appeal to this Court from a judgment dismissing an appeal from a conviction for an indictable offence is conferred by the Criminal Code and not by the Supreme Court Act: hence, s. 41(3) which makes it clear that the grounds for an appeal in such a case must be those prescribed by the Criminal Code and not by s. 41(1). Section 618 of the Criminal Code restricts appeals from conviction for an indictable offence to questions of law. Sections 620 and 621 of the Criminal Code impose similar restrictions on appeals from a verdict of insanity, unfitness to stand trial, and appeals by the Attorneys General. The effect of s. 41(3) of the Supreme Court Act is to make it clear that resort cannot be had to the broader grounds for appeal conferred by s. 41(1), according a right of appeal not only on a question of law, but as well on issues of mixed law and fact. In our view, s. 41(3) relates solely to the grounds for appeal and, even when read with s. 45, bears no relation to the procedure to be followed or to the criteria to be applied when the Court is deciding whether or not to grant leave. When s. 45(1) asks whether the case "comes within the provisions of section 41" (s. 45(1)(a)) or "does not come within the provisions of section 41" (s. 45(1)(b)), the question concerns the legal standard prescribed by s. 41(1), in other words, whether or not the case is, by reason of its public importance or the importance of any issue of law, one that ought to be decided by the Supreme Court.
Section 45 was intended by Parliament to provide for uniform and universally applicable procedure for the determination of applications for leave to appeal, a conclusion supported by the opening words of the section which indicate that it is to apply notwithstanding any other act of Parliament; nothing in s. 41(3) undermines that basic purpose. The French version of s. 45(1)(a) and (b), which reads as follows, supports this position:
45. (1) Par dérogation à toute autre loi fédérale, toute demande d'autorisation d'appel est présentée par écrit à la Cour qui, selon le cas:
a) l'accueille si sa conformité avec l'article 41 ressort des conclusions écrites et si elle ne justifie pas la tenue d'une audience;
b) la rejette si sa non-conformité avec l'article 41 ressort des conclusions écrites et si elle ne justifie pas la tenue d'une audience; [Emphasis added.]
In our view, the use of the word "conformité" in the French version is indicative of Parliament's intention that all leave applications should be made in writing so that the Court may determine the "compliance" or "non-compliance" of the arguments with the standards set in s. 41(1).
The statutory history of ss. 41 and 45 lends strong support to the conclusion that the purpose of s. 45 is to establish a procedure of general application. As noted in the factum of the applicant, s. 45 was first enacted in 1956 and "was obviously intended as a comprehensive procedural measure, affecting all applications for leave brought under all statutes, including the Criminal Code ." The amended version of s. 45 now in force retains the character of its precursor as a comprehensive scheme establishing the procedure to be followed in relation to all applications for leave to appeal. Indeed, amendments to the Supreme Court Act since s. 45 was first enacted have transformed the jurisdiction. Formerly, our caseload was predominantly comprised of appeals as of right; now it is predominantly appeals by leave. As was stated in R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 393, "It is difficult to overestimate the significance of this transition." Parliament has chosen to afford this Court the authority to control its own docket and s. 45, in its present form, should be interpreted in that light. While the 1987 amendments (of which the present s. 45 forms a part) did not eliminate all appeals as of right, they did further enhance the capacity of this Court to manage its docket by conferring jurisdiction to decide leave applications on the basis of written material. Had Parliament intended to limit this important newly-conferred jurisdiction by excepting applications for leave in certain criminal cases, it would have said so explicitly. This Court has recently affirmed the desirability of "an expansive reading" of the provisions relating to leave to appeal "the better to enable this Court to discharge its role at the apex of the Canadian judicial system as the court of last resort for all Canadians": Argentina v. Mellino, [1987] 1 S.C.R. 536 at p. 547, quoting R. v. Gardiner, supra, at p. 404. The result of the foregoing analysis is entirely consistent with this approach and in keeping with the important objective of enhancing this Court's capacity to control and manage its docket in a manner consistent with its role at the apex of the Canadian judicial hierarchy.
V Conclusion
For these reasons, we conclude that the applicant's claim to an oral hearing as of right and challenge to the Court's jurisdiction to decide his application for leave to appeal without according him an oral hearing must fail.
Application dismissed.
Solicitors for the applicant Morrissette: Walsh, Micay and Company, Winnipeg.
Solicitors for the applicant Chaulk: Wolch, Pinx, Tapper, Scurfield, Winnipeg.
Solicitor for the respondent: The Department of the Attorney General, Winnipeg.
Solicitor for the intervener: John C. Tait, Ottawa.
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