Strasser v. Roberge

Strasser v. Roberge
Collection
Supreme Court Judgments
Date
1979-10-02
Report
[1979] 2 SCR 953
Judges
Martland, Ronald; Ritchie, Roland Almon; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Quebec
Subjects
Labour law
Decision Content
Supreme Court of Canada
Strasser v. Roberge, [1979] 2 S.C.R. 953
Date: 1979-10-02
J. Gordon Strasser Appellant;
and
Claude Roberge Respondent.
1978: March 16; 1979: October 2.
Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE SUPERIOR COURT OF QUEBEC
Labour law—Participation in an unlawful strike—Elements of the offence—Burden of proof—Strict liability offence—Labour Code, R.S.Q. 1964, c. 141, ss. 1(h), 124.
Labour law—Penal prosecution—Preliminary arguments—Interested party—Multiple charge—Several offences in a single count—Labour Code, R.S.Q. 1964, c. 141, ss. 46, 93, 94, 95, 124, 126, 131, 133—Summary Convictions Act, R.S.Q. 1964, c. 35, s. 12, as amended by 1970 S.Q., c. 11, s. 4.
Respondent Roberge, who is president of his union, was charged in 1974 with participating in an unlawful strike, contrary to the provisions of ss. 124, 94, and 46 of the Labour Code. The information was signed by appellant Strasser, who was general manager of the business affected by the strike. The information consisted of two counts, the first referring to June 27, 1974, and the second mentioning July 3, 4, 5, 8, 9 and 10, as dates on which the offence was committed. The Labour Court having found him guilty on both counts, Roberge appealed to the Superior Court by trial de novo and was acquitted on both counts. As the law did not provide for an appeal to the Court of Appeal at the time, appellant obtained special leave from this Court to appeal here. The appeal deals first with the following three preliminary arguments, relied on by respondent:
1. the prosecutor did not allege or show that he was an interested party within the meaning of the Labour Code (s. 131);
2. the two counts of the complaint do not contain all the essential aspects of the offence alleged;
3. the second count of the complaint alleges several offences in the same count, contrary to the Summary Convictions Act (s. 12).
The question turns primarily on the elements of the offence and the evidence which the prosecution must present. Held (Dickson, Estey and Pratte JJ. dissenting): The appeal should be allowed.
Per Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ.: On the first preliminary argument, the evidence disclosed that Strasser was authorized to act for the employer, which is obviously an interested party. It was not necessary for appellant to have specific authorization to lay a complaint, as the general authorization which he held was sufficient. There is also nothing in the relevant legislation requiring him to state his authorization when he is laying a complaint. The second argument is also without merit. First, the fact that s. 124 of the Labour Code, under which the complaint was laid, does not contain the words “is guilty of an offence” does not mean that the offence was not created. The existence of the words “is liable to” is sufficient. It also cannot be argued that the counts are multiple, since each essentially corresponds to the terms of s. 124, adding certain details, and each charges respondent with only one of the three offences created by the section, namely with having participated in an unlawful strike. So far as the third argument is concerned, it relates only to the second count of the complaint, and it supports the conclusion that the latter should be quashed. The provisions of s. 12 of the Summary Convictions Act are peremptory: each offence charged must be set out in a separate count. Whether the offence in the case at bar is continuous or not, there should have been a separate count for each day on which the offence is alleged to have been committed.
Per Martland, Ritchie, Pigeon and Beetz JJ.: In order to decide on the principal point, it must be determined what are the elements of the offence charged and what evidence it is incumbent upon the prosecution to adduce. So far as the material element of the offence is concerned, the Labour Court correctly held that this element is proven once it is established that the accused abstained from providing his services at the same time as other workers abstained in concert from providing theirs. Participation in a strike does not necessarily mean active participation by the commission of positive acts. According to the Superior Court, the offence also contains an intentional element, due to the fact that the offence is described as the participation by one or more persons in the concerted inaction of a group. While the Superior Court was correct on this point, it erred in holding that proof of this intentional element lies on the prosecution and that the rule in Hodge’s case must be applied to this evidence. Accordingly, its conclusions giving Roberge the benefit of the reasonable doubt cannot be sustained. On the other hand, the Labour Court concluded that the offence had been committed due to the fact that the existence of the material element of the offence was proven beyond all reasonable doubt. Although the judgment of the Labour Court was rendered before that of this Court in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, several indications suggest that it treated this case as one of strict liability, and it did so correctly for the following reasons: (1) this was an offence created by a provincial statute; (2) the legislator has not explicitly indicated his intention to require proof of the intentional element by the prosecution; (3) the offence is of a regulatory nature; (4) nothing in the wording of the offence indicates that this may be an offence of absolute liability; (5) in the great majority of cases to which the prohibition applies, it would be virtually impossible for the prosecution to establish the existence of intent except through proof of the material factor. Finally, the non-participation of respondent in the concerted action preceding the strike is not a ground of defence. Although it is necessary for the prosecution to prove the strike, and therefore, prior concerted action, it does not have to prove that the accused was connected with such concerted action and participated in it. What is important is that respondent associated himself with the strike, not that he was one of its instigators.
In conclusion, in view of the fact that respondent is charged with an offence of strict liability, the material element of this offence was proven beyond any doubt, and respondent presented no evidence capable of exculpating him, the Labour Court properly found him guilty, and its judgment should be restored as to the first count.
Per Dickson, Estey and Pratte JJ., dissenting: The decision of this Court in R. v. Sault Ste. Marie cannot be employed to shift the burden of proof of the mental element of intention necessary to the commission of the offence. Sault Ste. Marie was solely concerned with “responsibility for negligence” in the context of public welfare offences and the introduction of some notion of fault to what would otherwise be absolute liability offences. If one accepts that the offence under s. 124 of the Labour Code has, as one of its components, an intentional element, the result is to negate not only a finding of absolute liability, but also a finding of strict liability. Once one has found an intentional element necessary to the commission of the offence, negligence becomes irrelevant, for the offence then falls into the first category of offences, that of mens rea, according to the classification made in Sault Ste. Marie. This case therefore cannot be used to justify the rejection of any need for proof of mens rea by the prosecution and the shifting of the burden of proof to the accused for an offence which requires mens rea. There is nothing in the language of s. 124 to support such a reversal of the burden of proof.
Whether one holds the view that the motion of non-suit should have been granted because there was no evidence of intention laid by the prosecution, or the alternative view that a reasonable doubt had been raised as to the participation of Roberge in the unlawful strike, the appeal must fail.
R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 (applied); Transport Savard Ltée v. Séguin, [1965] R.D.T. 56; Burke v. Chénier Inc., [1973] T.T. 320; Thivierge v. Les Editions Graphiques Inc., [1973] T.T. 365; Rodrigue v. Lapointe, [1973] T.T. 370; Pert Knitting Ltd. v. Roy, [1975] R.D.T. 575; Christie Brown and Co. Ltd. v. Paradis, [1975] T.T. 348; Reilly v. Lehouiller, [1976] T.T. 183; Girard v. Paquet, [1978] T.T. 164; Labrie v. Métallurgistes unis d’Amérique, Local 7443 [1977] T.T. 113; Burke v. Gasoline Station Ltd., [1973] T.T. 13; Dressler v. Tallman Gravel & Sand Supply Ltd., [1963] 2 C.C.C. 25; R. v. Mason (1972), 8 C.C.C. (2d) 546; Office de la Construction du Québec v. Amco Door Installations Ltd., [1977] C.A. 135, leave to appeal denied [1977] 1 S.C.R. x; Recorder’s Court v. Dufour, [1947] Que. K.B. 331; R. v. Weston Bakeries Ltd., [1969] R.L. 37; Bossé v. Commission Scolaire Régionale Honoré Mercier, [1977] T.T. 1; Marchand v. Boivin, [1977] T.T. 125; International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628, affirming (1966), 57 D.L.R. (2d) 141; Int. Longshoremen’s Ass. v. Maritime Employers’ Ass., [1979] 1 S.C.R. 120; R. v. Mitchell, [1964] S.C.R. 471; R. v. Cooper, [1978] 1 S.C.R. 860; R. v. Paul, [1977] 1 S.C.R. 181; Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Martin, [1942] 1 D.L.R. 391; Proudman v. Dayman (1941), 67 C.L.R. 536; Montreal Hardware Mfs. Co. Ltd. v. Dupuis, [1974] R.D.T. 506; Paradis v. The King, [1934] S.C.R. 165; R. v. Gagnon, [1956] S.C.R. 635, referred to.
APPEAL from a judgment of the Superior Court of Quebec, reversing a judgment of the Labour Court[1]. Appeal allowed, Dickson, Estey and Pratte JJ. dissenting.
Gilles Touchette, for the appellant.
Richard Cleary, for the respondent. The judgment of Martland, Ritchie, Pigeon and Beetz JJ. was delivered by
BEETZ J.—Appellant layed a complaint against respondent as follows:
[TRANSLATION] This constitutes the information of:
J. Gordon Strasser
Occupation: General Manager
Address: Pointe Campbell, Chibougamau, District of Abitibi
who states: I have reasonable and probable grounds to believe, and do believe, that:
Mr. Claude Roberge, 1406 O’Connell, in Chibougamau, District of Abitibi,
1. On June 27, 1974 Mr. Claude Roberge, being an officer of Local 5186 of the United Steelworkers of America, an organization of employees duly certified to represent the employees of Campbell Chibougamau Mines Ltd., participated in an unlawful strike at the mine of Campbell Chibougamau Mines Ltd., the whole contrary to the provisions of the Labour Code, in particular ss. 124, 94 and 46 of the said Code;
2. On July 3, 4, 5, 8, 9 and 10, 1974 Mr. Claude Roberge, being an officer of Local 5186 of the United Steelworkers of America, an organization of employees duly certified to represent the employees of Campbell Chibougamau Mines Ltd. participated in an unlawful strike at the mine of Campbell Chibougamau Mines Ltd., the whole contrary to the provisions of the Labour Code, in particular ss. 124, 94 and 46 of the said Code.
I therefore ask for justice and do sign:
(signed) J. GORDON STRASSER
Sworn before me at
Chibougamau, this 15th day
of July, 1974.
(signed) DENISE PLOURDE
Justice of the Peace acting
in and for the Province of Quebec.
On August 6, 1974 the respondent entered a plea of not guilty. On October 28, 1974 Judge Melançon of the Labour Court—as he then was—found respondent guilty on both counts of the complaint and imposed on him a fine of $700 plus costs, namely $100 for each day of the offence, the minimum provided by the Act: [1974] T.T. 432.
Respondent appealed to the Superior Court by trial de novo, but this trial was based solely on the evidence presented to Judge Melançon, the transcript of which was entered in the record of the Superior Court. On June 30, 1975 McNicoll J. of the Superior Court allowed the appeal and found respondent not guilty on both counts.
At the time, the law of Quebec did not provide for an appeal to the Court of Appeal. Appellant obtained special leave from this Court to appeal here.
I—Facts
In his brief, appellant gives a summary of the facts which is not disputed by respondent:
[TRANSLATION] At all times relevant hereto, respondent was president of the union certified to represent the employees of Campbell Chibougamau Mines Ltd., in accordance with the provisions of the Labour Code of Quebec.
During 1974, while a collective agreement was in effect, the employees asked that their salary rates be revised. There was an initial agreement in March 1974; however, subsequently representatives of the union, including respondent, submitted new demands to the company in light of the increase in the cost of living.
In particular, there were four meetings in June 1974 between representatives of the company and of the union. At these meetings, respondent asked for a readjustment of wages on the order of one dollar ($1.00) an hour; in addition, he suggested at one of these meetings that the company “could foresee problems” if the union’s demand was not granted.
In fact, a concerted work stoppage occurred on each of the dates mentioned in the information. On each of these dates, the respondent did not report to work. It was also admitted that respondent did not call the company on these dates to request permission to be absent, in accordance with established procedure. Respondent put forward no evidence in his defence.
II—Preliminary arguments put forward by respondent for quashing the complaint Before the trial commenced before the Labour Court and then in the Superior Court, respondent unsuccessfully put forward three arguments for quashing the complaint; and he continued to plead them in this Court:
[TRANSLATION] (1) the prosecutor did not allege or show that he was an interested party within the meaning of s. 131 of the Labour Code;
(2) the two (2) counts of the complaint do not contain all the essential aspects of the offence alleged, and in particular, do not disclose in what way the strike was unlawful;
(3) the second count of the complaint alleges several offences in the same count, contrary to s. 12 of the Summary Convictions Act, S.R.Q. 1964, c. 35, as amended by S.Q. 1970, c. 11.
1. First argument. This argument is based on s. 131 of the Labour Code, R.S.Q. 1964, c. 141:
131. Any penal prosecution under this code may be taken by the chief investigation commissioner or by any interested party.
The fines provided for in this act shall be paid into the consolidated revenue fund.
The Labour Code does not explain what an “interested party” is. Respondent contended that interested parties are only [TRANSLATION] “persons who have rights under the Labour Code”, and that only an employer is authorized by the Code to bring proceedings for participation in an unlawful strike.
In an initial unpublished judgment, rendered on October 8, 1974, on preliminary arguments, the Labour Court refused to allow this argument [TRANSLATION] “declining its jurisdiction… because this is a question which might be the subject of evidence when the case is heard”; however, it reserved respondent’s right to move for nonsuit subsequently if the prosecution did not establish this fact. In other words, the Court held that this argument was not a true declinatory exception on which it was necessary and possible to rule in limine litis, but an argument raising a question of fact on which jurisdiction might depend. On this point, the Labour Court followed the principal line of authority: Transport Savard Ltée v. Séguin[2]; Burke v. Chénier Inc.[3]; Thivierge v. Les Éditions Graphiques Inc.[4]; Rodrigue v. Lapointe[5]; Pert Knitting Ltd. v. Roy[6]; Christie Brown and Co. Ltd. v. Paradis[7]; Reilly v. Lehouiller[8] and Girard v. Paquet[9]. However, this line of authority is not consistent: see Labrie v. Métallurgistes unis d’Amérique, Local 7443[10].
There was in fact in the case at bar a motion for nonsuit once the prosecution evidence was complete, but this motion, which was dismissed, no longer dealt with the first preliminary argument: it was based on the contention that there had been a total absence of evidence that respondent had participated in the strike. In its final judgment, the Labour Court did not expressly dispose of the first argument, but dismissed it by implication since it found respondent guilty. The Superior Court did not decide the matter either, merely expressing its concurrence with the Labour Court so far as the preliminary arguments were concerned.
In my opinion, the first preliminary argument was dismissed because the evidence disclosed another fact making that argument irrelevant: appellant was authorized to act for the employer, and it is not disputed that the employer is an interested party.
Appellant was called as a witness and identified himself as follows:
[TRANSLATION] Mr. J. GORDON STRASSER
47 years old, GENERAL MANAGER OF
CAMPBELL CHIBOUGAMAU MINE
DOMICILED AT 1 POINTE CAMPBELL
CHIBOUGAMAU
He then began his deposition:
[TRANSLATION] Q. Mr. Strasser, in identifying yourself you mentioned that you were the General Manager of the Campbell Chibougamau Mine: is that the case?
A. Yes.
Q. Mr. Strasser, were you General Manager of the Campbell Chibougamau Mine from June twenty-seven (27) and including that date, and during the month of July, nineteen seventy-four (1974)?
A. Yes.
In cross-examination, appellant testified as follows:
[TRANSLATION] Q. Mr. Strasser, were you authorized in any way whatever to sign this information?
A. Yes.
Q. By whom and at what time, on what day?
A. I have authority to take such action as senior officer in the region.
Q. In what way—you were not specially authorized to lay this complaint by a resolution of your company, or by some other means?
At this point, the deposition was interrupted by an objection which the Court dismissed. The following passage then occurs:
[TRANSLATION] A. I was not specially authorized to lay this complaint, but I had general authorization to act in this manner as part of my responsibilities and my duties.
By Mr. RICHARD CLEARY, Counsel for the accused:
Q. So, if I understand you correctly, there was no resolution by the board of directors or by any other authority in the company authorizing you specifically to lay this complaint?
A. There was no specific authorization to lay this complaint.
This deposition is not contradicted. In my opinion, it proves that appellant held sufficient authority from his employer to lay the complaint; and the trial judge appears to have correctly concluded in his final judgment of October 28, 1974 that appellant acted in his capacity as agent of the employer. At p. 436, he wrote:
[TRANSLATION] “The first witness for the prosecution was Mr. J. Gordon Strasser, General Manager of the Campbell Chibougamau Mine. He stated that it was in this capacity and in light of his responsibilities in this regard that he layed and signed this complaint, his interest clearly being in seeing that the mines managed by him produced and were not stopped by an unlawful strike.” (My underlining.)
I do not think it is necessary for appellant to have received specific authorization to lay this complaint. I do not see why, in the case of a strike in which it may be thought advisable to lay complaints against scores or hundreds of persons, the general manager of a mine, the senior officer of a company in a given region, needs a specific resolution from the board of directors authorizing him to file each complaint. His case is covered by art. 1705 of the Civil Code:
Art. 1705. Powers granted to persons of a certain profession or calling to do any thing in the ordinary course of the business which they follow, need not be specified; they are inferred from the nature of such profession or calling.
In his submission counsel for the respondent argued that appellant did not purport to act on his employer’s behalf. Of course, the information could have been worded differently. For example, it could have been made in his name by the appellant “in his capacity as a duly authorized agent of Campbell Chibougamau Mines Ltd.”, or by “Campbell Chibougamau Mines Ltd., represented by its agent, J. Gordon Strasser”. However, I find nothing in the Labour Code or in the Summary Convictions Act, R.S.Q. 1964, c. 35, as amended, requiring a person laying a complaint to give notice of his mandate. Section 133 of the Labour Code provides that:
Any employer or association may be represented, for the purposes of this code, by duly empowered representatives.
This provision extends to penal proceedings covered by the Code and differs from the general rule of procedure that in a civil matter a person cannot use the name of another to plead, except the Crown through authorized representatives (art. 59 C.C.P.).
I know of no peremptory provision in the legislation in effect at the relevant period which requires a complainant to state in the information in what respect he is an interested party or whether he is acting for an interested party. I also do not see what detriment the person charged can suffer from the fact that the complaint does not contain these items of information. What is important is that the person filing the complaint be in fact an interested party or the agent of an interested party, and that this interest or mandate be proven. In the case at bar appellant’s mandate was proven. In order to dismiss the first preliminary argument relied on by respondent, there is accordingly no reason to decide whether, apart from his mandate, appellant was personally an interested party.
2. Second argument. In order to understand this argument and weigh its validity, the relevant provisions of the Labour Code must first be cited or summarized:
46. If the intervention of the conciliation officer has been unsuccessful, the right to strike or lock-out shall accrue sixty days or, in the case of the making of a first agreement, ninety days after the Minister has received the notification provided for in section 43, unless the parties submit their dispute to a council of arbitration.
93. Strikes are prohibited in all circumstances to the police officers and firemen in the employ of a municipal corporation.
94. It is forbidden to strike so long as an association of the employees concerned has not been certified or recognized and has not obtained the right to strike under section 46.
95. It is forbidden to strike during the period of a collective agreement, unless the agreement contains a clause permitting the revision thereof by the parties and the conditions prescribed in the preceding section have been observed.
Section 99 contains provisions relating to strikes by employees of a public service. Like ss. 94 and 95, it refers to s. 46.
Sections 124 and 126 read as follows:
124. Any person declaring or instigating a strike or lock-out contrary to the provisions of this code, or participating therein, shall be liable, in the case of an employer, association or officer or representative of an association, to a fine of one hundred to one thousand dollars for each day or part of a day during which such strike or lock-out exists and, in all other cases, to a fine of ten to fifty dollars for each such day or part of a day. 126. Any person who fails to comply with any obligation or prohibition imposed by this code, by a regulation of the Lieutenant-Governor in Council or by a regulation or decision of the Board, is guilty of an offence and liable, unless another penalty is applicable, to a fine of twenty five to one hundred dollars and of one hundred to one thousand dollars for any subsequent offence within two years.
As counsel for the respondent explained in his submission, the second argument is twofold. First, he maintained that s. 124 of the Labour Code, mentioned in the complaint, only provides for penalties and creates no offence, because it does not contain the formula “is guilty of an offence”: the complaint should have referred to s. 126. Furthermore, as the complaint does not indicate in what respect the strike is unlawful, he argued that respondent is confronted by a multiple charge, namely that of having contravened ss. 93, 94, 95 and 99.
After hearing counsel for the respondent on this point, the Court did not require counsel for the appellant to reply, as it was of the opinion that the Labour Court and the Superior Court correctly dismissed this argument.
I concur in the reasons of the Labour Court regarding the first part of this preliminary argument:
[TRANSLATION] …it is clear that if s. 126 of the Labour Code creates a complaint, creates an offence of a general nature, s. 124 of the Code also creates, not one offence, but several offences related to what is called a strike instigated or existing contrary to the provisions of the Code.
Thus, under s. 124 of the Labour Code, someone can be charged with having declared a strike, can be charged with having participated in a strike, and can be charged with having instigated a strike, contrary to the provisions of the Code, and these are three (3) different situations giving rise, which may give rise, to three (3) complaints or three (3) counts in the same complaint.
…
…while I admit that action could have been taken under both s. 126 and s. 124 of the Labour Code, the fact that the action was taken purely under s. 124 L.C. does not exclude and does not make unlawful the complaint as laid. It was also expressly contended that s. 124 of the Labour Code does not create an offence, because we do not find in the wording of this section, in contrast with the wording of ss. 123, 125 and 126 in the same section of the Code, the statement that someone who does such a thing “is guilty of an offence” and is “liable …to a fine”.
…
The mere absence of certain words cannot by itself prevent the creation of an offence, and the fact that the words “is guilty of an offence” are not in a provision does not mean that the offence was not created.
The existence of the words “is liable to” corresponds to the level of legal language, which exists in the same way as the language of mining or carpentry or plumbing exists; the existence of these words is therefore sufficient for the offence to be created.
(This passage is contained in the unreported judgment of October 8, 1974.)
The second part of the second preliminary argument is also without merit. Sections 93, 94, 95 and 99 are contained in Chapter V of the Code, entitled “Strikes and lock-outs”. This chapter deals with strikes and lock-outs, without indicating whether criminal prosecution is possible if its provisions are not complied with. As such, the provisions of this chapter do not create offences. The provisions which do create offences are in Chapter VIII, entitled “Penalties”, which includes s. 124. It is to this section that reference must be made in applying the guideline approved by this Court in R. v. Sault Ste. Marie[11], at p. 1308: “does the accused know the case he has to meet, or is he prejudiced in the preparation of his defence by ambiguity in the charge?”. Each of the two counts in the complaint essentially corresponds to the terms of s. 124, adding certain details: each mentions the date or dates on which the alleged offence is supposed to have been committed; each clearly identifies respondent; each indicates the place where the unlawful strike took place, giving the name of the mine, and each charges respondent with only one of the three offences created by the section, namely, having participated in an unlawful strike, but not with having declared or instigated it. As each of these counts only charges respondent with one offence, I do not see how it can be said that they are multiple and that respondent is unable to know which offence he is being charged with in each count, because they do not specify in what respect the strike was unlawful. At the most it might be suggested that this was a case in which the prosecution would have to furnish particulars. These particulars were in fact requested by respondent; the Labour Court dismissed the request and respondent did not appeal from that judgment, which in any case involved a good deal of discretion.
3. Third argument. This argument relates only to the second count of the complaint. It is based on s. 12 of the Summary Convictions Act, as amended by c. 11 of the Statutes of Quebec, 1970, s. 4:
12. (1) Every complaint must be made in writing and, if the issue of a warrant is required, must be supported by oath.
(2) A single complaint may charge several offences; each offence charged must be set out in a separate count.
(3) Any person may make a complaint unless the law constituting the offence requires a special authorization.
(4) When an offence is continuous, such continuation shall constitute a separate offence day by day.
(5) When a defendant is liable to separate penalties according to whether the offence is a first or a subsequent one, the complaint must mention for which offence other than the first proceedings are instituted. It shall be incumbent upon the complainant to prove a previous conviction.
Respondent maintained that the second count was not worded in accordance with subss. 2 and 4 of s. 12. Judge Melançon held that the second count charged respondent with a continuing offence, that of having participated in a single unlawful strike lasting for several days, and he dismissed the third argument, relying on a judgment which he had himself rendered the previous year (Burke v. Gasoline Station Ltd.[12]), and on a decision of the Court of Appeal of Alberta, Dressier v. Tallman Gravel et al.[13], and a decision of the Court of Appeal of Nova Scotia, R. v. Mason[14]. However, in these two decisions, the legislation to be interpreted was provincial statutes referring to the Criminal Code, and did not include any provision worded like the new s. 12 of the Summary Convictions Act. The Court of Appeal of Quebec had to interpret s. 12 in a decision subsequent to the judgments rendered in the case at bar by the Labour Court and the Superior Court, Office de la Construction du Québec v. Amco Door Installations Ltd.[15] (Special leave to appeal to this Court was denied[16].) In that case, the complaint included two counts charging the accused with having used too many apprentices as compared with the number of qualified workers for a given week, contrary to the Manpower Vocational Training and Qualification Act, S.Q. 1969, c. 51, which also referred to the Summary Convictions Act. The trial judge concluded that the offence alleged was not a continuous offence, but that the information contravened subs. 2 of s. 12; he therefore quashed the information. The Court of Appeal affirmed his decision. Dubé J., speaking for the unanimous Court, gave the following reasons at p. 137:
[TRANSLATION] …in the case at bar the informations at issue are to be considered not according to the usual Criminal Code rules, but according to the rules of the Summary Convictions Act; I consider that s. 12 of that Act is very explicit and cannot give rise to any confusion: thus, it seems clear that each of the informations at issue covers a period of one week; according to what is reported in the judgment a quo, the complainant himself admitted that there had been an offence on each day of the week; accordingly, I think the wording of s. 12 of the Summary Convictions Act places us in the following dilemma: if the complaint includes a continuous offence, as appellant alleges, then it is subs. 4 of s. 12 of the Summary Convictions Act which applies, and this subsection states clearly that: When an offence is continuous, such continuation shall constitute a separate offence day by day;
on the other hand, if the complaint does not constitute a continuous offence, then it is subs. 2 of that section which applies:
each offence charged must be set out in a separate count.
It must accordingly be concluded that in either case the complaints as laid are contrary to the directions of s. 12 of the Summary Convictions Act, directions which in my opinion are peremptory.
I feel that the defect alleged against the complaints at issue relates to an essential aspect of the information, which cannot be remedied under s. 62 of the Summary Convictions Act, because this is not a mere error of form.
I am in agreement with these reasons of the Court of Appeal, although s. 62 of the Summary Convictions Act seems to me to apply to irregularities of substance as well as form. Under the first subsection of this section, such irregularities can be disregarded. When they are serious, they can be remedied, as provided in subs. 4, by amendments and an adjournment. However, s. 61 of the same Act implies that there are irregularities which cannot be remedied, as for example if the description of the offence is much too vague. See Recorder’s Court v. Dufour[17]; R. v. Weston Bakeries Limited[18]. A complaint which does not comply with the provisions of s. 12 must be regarded as vitiated by an irregularity of this kind, otherwise the peremptory provisions of that section would be a dead letter. The legislator saw fit to add to the formal requirements by the amendment made in 1970 to s. 12; the new provision is clear and it must be observed. The second count of the complaint must therefore be quashed.
The decision of the Court of Appeal was followed in Bossé v. Commission Scolaire Régionale Honoré Mercier[19] and, though with hesitation, in Marchand v. Boivin[20]. III—The principal point
In this Court, respondent did not dispute that there had been a strike at the Campbell Chibougamau Mine on June 27, 1974, that this strike was unlawful and that at the time he was an officer of Local 5186 of the United Steelworkers of America, an association duly certified to represent the mine employees.
It must then be decided whether the Labour Court was correct in concluding that the participation of respondent in the strike was proven, or whether the Superior Court correctly concluded that it was not. In order to do this, the elements of the offence with which respondent is charged must be ascertained; what evidence it is incumbent upon the prosecution to adduce must also be determined.
The only evidence adduced against respondent was that he was not at work on June 27, 1974, a day on which he should have been there. It was also admitted that he had not asked for leave to be absent.
The Labour Court and the Superior Court arrived at opposite conclusions primarily because they disagreed on the elements of the offence and on the evidence required to establish them.
1. The material element of the offence
As I have noted above, it is no longer in dispute that on June 27, 1974 there was a strike within the meaning of the definition given in s. 1(h) of the Labour Code:
“strike”—the concerted cessation of work by a group of employees.
The Superior Court considered that in order to participate in a strike, it is necessary to take an active part in it as indicated by positive action; it noted, for example, that there was no evidence that on the day of the strike respondent had been seen among the many persons causing an obstruction, participating in picketing the mine or blockading it.
The Labour Court, on the other hand, considered that the material element of the offence was merely abstaining from providing his services at the same time as other employees were on strike, and that the commission of the offence did not require any positive action by the accused when, as in the case at bar, he was employed by a business being subjected to a strike.—The Labour Court noted that it might be otherwise where the accused was not employed by the business, and was participating in the strike or in demonstrations accompanying it, for sympathetic reasons on some political ground or for some other reason. I am not required to decide whether this could be so pursuant to s. 124, s. 128 or any other provision of the Labour Code.
I concur on this point with the Labour Court, in light of the definition of strike by the Labour Code and the meaning of the word “participer” (to participate). This word is not defined by the Code. According to the Robert dictionary, it means:
[TRANSLATION] TO take part in [something], join, contribute to, collaborate, co-operate, intervene, help, belong to, act in, be an accomplice, be involved in, partake, experience the same feelings through sympathy with someone, have a part in.
This word may have a positive or negative meaning depending on the nature of what is being participated in. In the case of an omission, like a work stoppage by a group of employees, the minimum and primary material aspect of participation is also an omission. In my opinion, it is an error to maintain that positive acts must be committed to constitute a participation in what the Act defines as an abstention. What the Labour Code specifically prohibits in s. 124 is not participation in picketing, in a blockade or in any other activity of this kind by a group of employees, but participation in a concerted cessation of work by a group of employees, that is, participation in a suspension of activity. The Labour Court correctly held that, apart from the intentional element of the offence, the essential material element is proven once it is established that the accused abstained from providing his services at the same time as other workers abstained in concert from providing theirs. Moreover, this conclusion seems more compatible than the other with the ordinary meaning of the words: when there is a strike and an employee stays home, it will ordinarily be said that, at first glance, the employee is on strike or is participating in a strike.
2. The intentional element of the offence
According to the Superior Court, the offence with which respondent was charged contains an intentional element which it defined as follows:
[TRANSLATION] AS the strike is defined as a “concerted cessation”, a decision must enter into it, namely a voluntary act which itself follows a statement of the situation having the effect of bringing about the adhesion of the mind, and it is not until this process is complete that it can be said there is a strike, and that someone can take part in it through an identical process, or at least an analogous, equivalent or similar process.
The Superior Court also held that proof of this intentional element lies on the prosecution and that, where this evidence is circumstantial, it must be such that it leads irresistibly to a conclusion of guilt, excluding any other logical explanation, in accordance with the rule in Hodge’s case. The Superior Court held that in fact in the case at bar the evidence was circumstantial and did not meet the rule in Hodge’s case: thus, [TRANSLATION] “there was no positive evidence” that the accused knew that other employees had ceased working; the prosecution also did not establish that the accused’s health permitted him to work on the day of the strike or that he was not the victim of some other impediment; and the Court concluded that the prosecution evidence therefore left open a reasonable doubt from which the accused must benefit.
I am in agreement with the Superior Court on only one point, namely that the offence alleged against respondent includes an intentional element, due to the fact that the offence is described as the participation by one or more persons in the concerted inaction of a group. I would describe this intentional element as follows: if the material element of the offence is abstaining from providing services at the same time a