R. v. Kelly, 2001 SCC 25, [2001] 1 SCR 741

R. v. Kelly, [2001] 1 S.C.R. 741, 2001 SCC 25

Her Majesty The Queen                                                                   Applicant

v.

Patrick Kelly                                                                                      Respondent

Indexed as:  R. v. Kelly

Neutral citation:  2001 SCC 25.

File No.:  28007.

2000:  October 2; 2001: April 20.

Present:  Iacobucci, Major, Bastarache, Binnie and Arbour JJ.

motion to quash an application for leave to appeal

Criminal law -- Appeals -- Supreme Court of Canada – Jurisdiction -- Reference to Court of Appeal -- Accused applying to Supreme Court for leave to appeal decision of Court of Appeal on reference under s. 690  of Criminal Code  – Whether Court of Appeal provided only an opinion under s. 690(c) of Code – Whether Crown’s motion to quash application for leave should be granted – Criminal Code, R.S.C. 1985, c. C-46, s. 690 (b), (c).

The accused was convicted of first degree murder in 1984.  In 1993, he applied to the federal Minister of Justice to have his conviction reviewed on the basis of fresh evidence.  By way of reference to the Ontario Court of Appeal pursuant to s. 690  of the Criminal Code , the Minister requested an opinion as to whether the fresh evidence would be admissible on appeal; if so, the case would be referred to the Court of Appeal to be  determined as if it were an appeal by the accused on the issue of fresh evidence.  The majority of the Court of Appeal concluded that the fresh evidence would  not be admissible on appeal.  The accused sought leave to appeal to this Court but the Crown brought a motion to quash the application for leave to appeal.

Held (Arbour J. dissenting):  The motion should be granted and the application for leave to appeal quashed.

Per Iacobucci, Major, Bastarache and Binnie JJ.: The Court of Appeal was asked to provide only an opinion to assist the Minister of Justice in coming to a final determination.  Since an opinion is not a final judgment from a legal proceeding, no appeal to this Court is available. The procedures described in paras. (b) and (c) of s. 690 of the Code are separate.  Under para. (b), the Minister may refer a matter to a court of appeal for hearing and determination; under para. (c), a question is referred to the court of appeal for its opinion. While the Minister may elect to have a court of appeal act under both paragraphs together,  the request in this case did not meld para. (c) with para. (b).  It is clear that the court was asked to undertake the para. (b) determination only if it concluded that there was admissible evidence.  As the majority of the Court of Appeal concluded that there was no admissible evidence, it did not move to para. (b). That the dissenting judge did go on to consider the para. (b) issue does not change the fact that the court, per se, provided only a para. (c) opinion.

Per Arbour J. (dissenting): The majority’s interpretation of the reference question places undue emphasis on the form of the question rather than giving due consideration to both its form and substance. Since the substance of the reference question involved a consideration at both stages of the admissibility of the fresh evidence and of its effects if admitted, the decision rendered by the Court of Appeal was a decision that either the Crown or the accused may appeal. The Court of Appeal’s “opinion” under s. 690(c) on the admissibility of the fresh evidence is inseparable from its determination of the appeal under s. 690(b).  Given the conclusion that both paras. (b) and (c) of s. 690 were engaged, it follows that the decision on the reference is a “judgment” within the meaning of the Supreme Court Act , from which leave to appeal may be sought. Furthermore, in this case, s. 691(1) (a) of the Criminal Code  applies and the appeal to this Court is as of right. The response of the Court of Appeal to both questions was a judgment affirming a conviction with a dissent on a question of law.

Cases Cited

By Major J.

Distinguished:  Marcotte v. The Queen, [1965] S.C.R. 209, [1965] 3 C.C.C. 285; Reference re Gruenke, [2000] 1 S.C.R. 836, 2000 SCC 32.

By Arbour J.  (dissenting)

Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Morin (1995), 37 C.R. (4th) 395; Marcotte v. The Queen, [1965] S.C.R. 209; Reference re Gruenke, [2000] 1 S.C.R. 836, 2000 SCC 32, aff’g (1998), 131 C.C.C. (3d) 72.

Statutes and Regulations Cited

Criminal Code , R.S.C. 1985, c. C-46 , ss. 686(1) (b)(iii), 690, 691(1)(a), (b) [rep. & sub. c. 34 (3rd Supp.), s. 10].

Supreme Court Act , R.S.C. 1985, c. S-26 , ss. 2(1) , 40(1)  [rep. & sub. 1990, c. 8, s. 37].

MOTION to quash an application for leave to appeal from an opinion of the Ontario Court of Appeal (1999), 122 O.A.C. 201, 135 C.C.C. (3d) 449, [1999] O.J. No. 1781 (QL), in the matter of a reference by the Minister of Justice pursuant to s. 690  of the Criminal Code  concerning the admissibility of new evidence.  Motion granted, Arbour J. dissenting.

Paul S. Lindsay, David Finley and Alexander Alvaro, for the applicant.

Delmar Doucette, for the respondent.

The judgment of Iacobucci, Major, Bastarache and Binnie JJ. was delivered by

1                          Major J. — This is a motion by the Attorney General for Ontario to quash Patrick Kelly’s application for leave to appeal to this Court.  In my opinion the Court of Appeal was asked to provide only an opinion, to assist the Minister of Justice in coming to a final determination.  The opinion is not a final judgment from a legal proceeding and no appeal to this Court is available.

2                          Kelly was convicted of first degree murder in 1984.  In 1993 he learned of a possible recantation by a key witness and of new evidence relating to a re-enactment performed during the trial.  He applied to the Minister of Justice to have his conviction reviewed in light of this new evidence.  In 1996, the Minister of Justice referred the matter to the Court of Appeal for Ontario, requesting an opinion as to whether the new evidence was admissible, and if it was, to then proceed to deal with its effect.  A majority (Goudge J.A. dissenting) concluded that the new evidence was not admissible:  (1999), 122 O.A.C. 201.  Subsequently, the Minister of Justice determined nothing further remained and notified Kelly to that effect.  Kelly sought leave to appeal to the Supreme Court of Canada.

3                          The applicant Crown brought this motion to quash the application for leave to appeal, claiming that the Court of Appeal issued an advisory opinion only, and that that opinion was not a judicial proceeding.

4                          The provision governing the reference to the court of appeal is s. 690  of the Criminal Code , R.S.C. 1985, c. C-46 :

690.  The Minister of Justice may, on an application for the mercy of the Crown by or on behalf of a person who has been convicted in proceedings by indictment or who has been sentenced to preventive detention under Part XXIV,

(a) direct, by order in writing, a new trial or, in the case of a person under sentence of preventive detention, a new hearing, before any court that he thinks proper, if after inquiry he is satisfied that in the circumstances a new trial or hearing, as the case may be, should be directed;

(b) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person under sentence of preventive detention, as the case may be; or

(c) refer to the court of appeal at any time, for its opinion, any question on which he desires the assistance of that court, and the court shall furnish its opinion accordingly.

5                          The question is whether the procedures described in paras. (b) and (c) are separate.  I will refer to them as the “para. (c) opinion” and the “para. (b) determination”.

6                          The Criminal Code  separates para. (c) and para. (b) and so keeps them distinct.  The provision does not provide that the Minister on referral requests the court of appeal to give both its advisory opinion and its determination as if the matter were an appeal.  To the contrary, the language of s. 690 indicates that the two procedures are alternatives. 

7                          The Minister may elect to have the court of appeal act under paras. (b) and (c), separately or together.  What was his request in this case?

8                          The answer lies in the Minister of Justice’s letter of November 25, 1996, where he referred the matter under s. 690, with the request that the court review the matter under para. (c), and only if the new evidence was admissible was it to proceed  under para. (b).  The Minister wrote:

The unique circumstances of this case require me to obtain the opinion of the Court of Appeal for Ontario pursuant to paragraph 690 (c) of the Criminal Code . . . .

If the Court of Appeal for Ontario concludes, in answer to the questions I have referred to the Court, that the new information . . . would be admissible on appeal, I am satisfied that in those circumstances it would be an appropriate exercise of my discretion under paragraph 690 (b) of the Criminal Code  to refer the matter to the Court of Appeal for Ontario for hearing and determination by that Court as if it were an appeal by the Applicant. . . .

Accordingly, pursuant to paragraph 690 (c) of the Criminal Code , I do hereby respectfully refer to the Court of Appeal for Ontario for its opinion ... [two questions regarding the admissibility of new evidence].  [Emphasis added.] 

9                          The request in this case did not meld the para. (c) opinion with the para. (b) determination.  It is clear that the court was asked to undertake the para. (b) determination only if it concluded that there was admissible evidence.  This was a sequential assignment:  the court was asked “look at C, but look at B only if you answer ‘yes’ to C”.  As the Court of appeal concluded there was no admissible evidence, it did not move to para. (b).  The Minister’s request made a distinction between the para. (c) opinion and the para. (b) determination, unlike in Marcotte v. The Queen, [1965] S.C.R. 209, [1965] 3 C.C.C. 285, at p. 287 C.C.C., where the reference asked the Court of appeal to provide both a “hearing and determination” of the issues.

10                      The respondent Kelly submits that due consideration must be given to both the form and substance of the request.  However, under s. 690, the Minister alone can decide the issue.  There is no requirement that it be referred to the court of appeal.  It was open to the Minister to refer as much or as little as was considered appropriate to the case.  The Minister used clear language to emphasize the limited and sequential nature of the mandate.  The argument of substance over form invites us to ignore these precise and explicit limitations, and it should be rejected.

11                      The Court of Appeal’s reasons support the view that it did not undertake a para. (b) determination.  At para. 232, the majority explicitly said “it is not necessary to deal with” the s. 690(b) issue.  That the dissenting judge did go on to consider that issue does not change the fact that the court, per se, provided only a para. (c) opinion.

12                      An appeal to this Court requires a statutory right of appeal.  There is none here.  The Court of Appeal’s opinion was not an affirmation of a conviction, the court did not issue any order, nor did it make any final determination.  The Court of Appeal, like any court, speaks through its majority.  That is, the decision governs, not the dissent, no matter how eloquent.

13                      In Reference re Gruenke, [2000] 1 S.C.R. 836, 2000 SCC 32, leave to appeal from a s. 690 reference was granted, but there was no challenge on the question of jurisdiction and consequently it is of no guidance or assistance on the issue raised here.

14                      The motion is granted, and the application for leave to appeal is quashed.

The following are the reasons delivered by

Arbour J.  (dissenting)  –

I.  Facts

15                      Patrick Kelly was convicted of the first degree murder of his wife in 1984.  Mrs. Kelly died as a result of falling from the balcony of the Kelly’s 17th floor apartment in Toronto.  At trial, Dawn Taber testified that she had witnessed Mr. Kelly drop his wife over the balcony.  Mr. Kelly maintained that his wife fell accidentally over the balcony and that Ms. Taber was not at the apartment on the day in question.  Mr. Kelly’s appeal to the Court of Appeal was dismissed and his subsequent application for leave to appeal to this Court was denied: [1986] 1 S.C.R. x. 

16                      In December 1993, Mr. Kelly applied for a review of his conviction on the basis of a partial recantation by Dawn Taber and new scientific information questioning the validity of the re-enactment evidence presented by the Crown at trial.  On November 25, 1996, the then Minister of Justice referred the case to the Ontario Court of Appeal under s. 690  of the Criminal Code , R.S.C. 1985, c. C-46 , on the following terms:

I HEREBY REFER, pursuant to paragraph 690 (c) of the Criminal Code , the application of Patrick Kelly to this Honourable Court with directions to the said Court to hear evidence relating to Dawn Taber and new scientific evidence on the following questions:

1.    In the circumstances of this case, would the new information from Dawn Taber be admissible on appeal to the Court of Appeal?

2.    In the circumstances of this case, would the new information from the scientific experts be admissible on appeal to the Court of Appeal?

If this Honourable Court concludes that the new information from either or both Dawn Taber and the scientific experts would be admissible on appeal, I do hereby respectfully refer to this Honourable Court, pursuant to paragraph 690 (b) of the Criminal Code , based on a consideration of the existing record herein, the evidence already heard, and such further evidence as this Honourable Court in its discretion may receive and consider, to determine the case as if it were an appeal by Patrick Kelly on the issue of the fresh evidence.

17                      On the reference, the majority of the Court of Appeal concluded that none of the new evidence would be admissible on appeal: (1999), 122 O.A.C. 201.  Goudge J.A. agreed with the majority on the issue of the scientific evidence.   However, he was of the view that  the new information from Dawn Taber was admissible and that a new trial should be ordered.  After receiving the Court of Appeal’s decision, the Minister of Justice decided not to order any further action under s. 690  of the Criminal Code  or a reference to this Court.

18                      In July of 2000, Mr. Kelly filed an application for leave to appeal to this Court from both the decision of the Court of Appeal and the decision of the Minister of Justice not to order any further action under s. 690  of the Criminal Code .  The Attorney General for Ontario responded with a motion to quash the leave application on the basis that this Court had no jurisdiction to consider Mr. Kelly’s application for leave to appeal.

II.  Relevant Statutory Provisions

19                      Criminal Code , R.S.C. 1985, c. C-46 

690.  The Minister of Justice may, on an application for the mercy of the Crown by or on behalf of a person who has been convicted in proceedings by indictment or who has been sentenced to preventive detention under Part XXIV,

(a) direct, by order in writing, a new trial or, in the case of a person under sentence of preventive detention, a new hearing, before any court that he thinks proper, if after inquiry he is satisfied that in the circumstances a new trial or hearing, as the case may be, should be directed;

(b) refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person under sentence of preventive detention, as the case may be; or

(c) refer to the court of appeal at any time, for its opinion, any question on which he desires the assistance of that court, and the court shall furnish its opinion accordingly. 

691. (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.

Supreme Court Act , R.S.C. 1985, c. S-26 

40.  (1)  Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or 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 that 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 that judgment is accordingly granted by the Supreme Court.

III.   Analysis

20                      This motion raises the issue of whether this Court has jurisdiction to consider an  application for leave to appeal the decision of the Court of Appeal on this reference under s. 690  of the Criminal Code .  Counsel for Mr. Kelly argues that both paras. (b) and (c) of s. 690 were engaged on the reference and that, accordingly, the Court of Appeal’s  reasons constitute a “judgment” from which leave to appeal may be sought under s. 40(1)  of the Supreme Court Act .  He did not raise in his oral argument his written submission that there is an appeal from the decision of the Minister of Justice.  Clearly, there is not.  Counsel for the Ontario Crown submits that the Court of Appeal only provided an “opinion” under s. 690(c) of the Code, which cannot be the subject of a leave application because it is not a “judgment” within the meaning of  the Supreme Court Act . 

21                      My colleague, Justice Major, concludes that since the reference was pursuant to s. 690(c) of the Code, this Court does not have jurisdiction to consider the application for leave to appeal. In his view, the reasons of the Court of Appeal constitute an “opinion”, pursuant to s. 690 (c) of the Criminal Code , which is not appealable to this Court.  In my view, this interpretation of the reference question places undue emphasis on the form of the question rather than giving due consideration to both the form and substance of the question. 

22                      The substance of the reference asks  the Court of Appeal to decide, just as it would on an ordinary appeal, whether fresh evidence is admissible and, if so, what impact it has on the conviction.  The form of the question asks the Court of Appeal to offer only an “opinion” if it concludes the new evidence is inadmissible on appeal, but to provide a decision on the merits of the appeal if the evidence is deemed admissible.  The result of the way in which the question is structured is that if the Court of Appeal’s “opinion” is unfavourable to Mr. Kelly, he has no recourse to this Court.  However, if the Court of Appeal decides in Mr. Kelly’s favour and finds that the new evidence is admissible and a new trial should be ordered, the Crown may apply for leave to appeal to this Court, or indeed may appeal as of right if there is a dissent, since it constitutes an appeal of a final order.  Thus, the Crown may appeal an unfavourable decision, while  Mr. Kelly is barred from appealing a decision which is not in his favour.

23                      In my view, such a formalistic interpretation of the reference question should not be adopted.   The division of the issues between the unappealable opinion on the admissibility of the fresh evidence, and the appealable decision on the effect of the evidence if admitted, appears to serve no other purpose than to curtail Mr. Kelly’s access to appellate review.  No other purpose has been advanced.  Moreover, I find it artificial to purport to sever the issue of whether the fresh evidence would be admissible (the s. 690(c) opinion) from the issue of whether a new trial should be ordered solely on the basis of the fresh evidence (the s. 690(b) appeal).  Since the substance of the reference question involved a consideration at both stages of the admissibility of the fresh evidence and of its effects if admitted, it is my view that the decision rendered by the Court of Appeal was a decision that either the Crown or Mr. Kelly may appeal to this Court.  To hold otherwise would result in the untenable conclusion that the portion of the Court of Appeal judgment written by Goudge J.A., had it been expressed by the majority, would have been a final decision and therefore appealable, while the majority reasons constitute only an “opinion” that may not be appealed.  It cannot be that the legal significance of the reference question depends upon the answer to the question.

24                      The test for the admissibility of fresh evidence set out by this Court in Palmer v. The Queen, [1980] 1 S.C.R. 759, supports the view that the fresh evidence issue is inseparable from the appeal itself.   As part of the Palmer test, the court of appeal is required to consider, in part, whether the fresh evidence, if believed and taken together with the other evidence adduced at trial, is likely to have affected the outcome.  Once the court of appeal has decided whether or not the fresh evidence could reasonably have affected the result of the trial,  the appeal follows suit.  Thus, in an appeal solely on the issue of fresh evidence, the court’s decision on the admissibility of the fresh evidence will be determinative of the appeal itself.

25                      I find support for this view in the reasons of the Court of Appeal on the reference.  It is clear from the majority reasons that the consideration of the admissibility of evidence under s. 690(c) was inseparable from the issue of whether a new trial should be ordered under s. 690(b).  At paragraph 171 of the reasons, Finlayson and Osborne JJ.A., speaking as the majority, state that “[i]n carrying out the directions of the Minister, we are bound to treat this application as we would any application to admit fresh evidence in a criminal appeal under s. 683(1)(d) of the Code, and the case law flowing therefrom”.  Further, at para. 186, they say:

We reject the suggestion that we should simply report back to the Minister of Justice that after all this extended effort we are not in a position to determine the narrow questions that have been referred to us.  The answer to the s. 690(b) reference being in the negative, the fresh evidence of Ms. Taber’s recantation having been found inadmissible, we are bound to dispose of the s. 690(c) matter by upholding the trial result. [Emphasis added.]  [It appears that the  Court of Appeal may have inadvertently reversed the paragraph numbers in this passage.]

In my view, these passages from the majority reasons illustrate the fact that the Court of Appeal’s “opinion” under s. 690(c) is inseparable from its determination of the appeal under s. 690(b).     

26                      The dissenting opinion of Goudge J.A. is also instructive.  Being of the opinion that the fresh evidence would be admissible, he proceeds to deal with the appeal.  He says at para. 322: “[t]o complete the determination of this case as if it were an appeal by Mr. Kelly on the issue of the fresh evidence, as the Minister asks, I would direct a new trial”.  Since the reference stipulated that the appeal should be “on the issue of the fresh evidence”, little more needed to be considered on the appeal.  The sole remaining issue would be whether the fresh evidence was such that a jury was bound to acquit, in which case an acquittal would be entered: see R. v. Morin (1995), 37 C.R. (4th) 395 (Ont. C.A.).  Otherwise, the matter would  be sent back for a new trial.  There could be no recourse to s. 686(1)(b)(iii) of the Criminal Code  where evidence meeting the Palmer test had not been considered by the trier of fact.  This illustrates, in my view, that there is little left of the appeal ordered in the reference after the opinion to admit the fresh evidence is expressed.  All that remains is for the court to make an order.  This illustrates how completely artificial the breakdown of these issues is in the terms of reference.

27                      In my view, the response of the Court of Appeal to both questions posed in this reference was a judgment affirming a conviction.  I think that was also the understanding of the Court of Appeal.  It is undisputed that this Court has jurisdiction to hear an appeal from a decision of a court of appeal made under s. 690 (b) of the Criminal Code : Marcotte v. The Queen, [1965] S.C.R. 209.  Given my conclusion that both paras. (b) and (c) of s. 690 were engaged on the reference, it follows that the decision of the Court of Appeal on the reference is a  “judgment” within the meaning of the Supreme Court Act , from which leave to appeal may be sought:  Supreme Court Act , ss. 2(1)  and 40(1) .

28                      Given my conclusion that this reference engages both s. 690(b) and (c) of the Code, the question arises whether leave to appeal to this Court is required or whether the appeal is as of right under s. 691(1)(a) of the Code.  While Mr. Kelly has applied for leave to appeal to this Court, his counsel now submits that the appeal should be as of right pursuant to Marcotte, supra.  In my view, the case of Marcotte, supra, is not decisive on this issue as it concerned a provision conferring an appeal as of right for capital offences.  Nor is this Court’s decision in  Reference re Gruenke, [2000] 1 S.C.R. 836, 2000 SCC 32, determinative of the issue.  In that case, the  decision of the Manitoba Court of Appeal was unanimous, therefore leave to appeal to this Court was required and granted pursuant to s. 691(1) (b) of the Criminal Code : see Reference re:  Gruenke (1998), 131 C.C.C. (3d) 72.  (No objection was raised about this Court’s jurisdiction in Gruenke, and therefore the case cannot be used as a precedent affirming this Court’s jurisdiction in the present case.)

29                      Section 690(b) of the Code provides that the Court of Appeal is to hear the reference “as if it were an appeal by the convicted person”.   Section 691(1)(a) of the Code provides that a person convicted of an indictable offence whose conviction is affirmed by the Court of Appeal may appeal as of right to the Supreme Court of Canada on any question of law on which a judge of the court of appeal dissents.  Given my view that the Court of Appeal rendered a decision affirming the conviction of Mr. Kelly, it is also my view that s. 691(1)(a) applies and that the appeal to this Court is as of right. 

30                      For these reasons,  I would dismiss the motion to quash the application for leave to appeal.

Motion granted, Arbour J. dissenting.

Solicitor for the applicant:  The Ministry of the Attorney General, Toronto.

Solicitors for the respondent:  Ruby & Edwardh, Toronto.