R. v. Gardiner

R. v. Gardiner
Collection
Supreme Court Judgments
Date
1982-08-09
Report
[1982] 2 SCR 368
Case number
15806
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Dickson, Robert George Brian; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien
On appeal from
Ontario
Subjects
Appeal
Criminal law
Decision Content
Supreme Court of Canada
R. v. Gardiner, [1982] 2 S.C.R. 368
Date: 1982-08-09
Her Majesty The Queen (Plaintiff) Appellant;
and
Obed Ebenezer Gardiner (Defendant) Respondent.
File No.: 15806.
1981: November 23; 1982: August 9.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, McIntyre and Chouinard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Appeal—Criminal law—Supreme Court of Canada jurisdiction—Whether jurisdiction to entertain appeal against sentence—Supreme Court Act, R.S.C. 1970, c. S-19 as amended, s. 41—Criminal Code, R.S.C. 1970, c. C-34 as amended, ss. 614, 618.
Criminal law—Indictable offence—Plea of guilty—Sentencing—Proper standard of proof of disputed aggravating facts.
Following respondent’s guilty plea, the trial judge, in the course of sentencing, assessed conflicting testimony given by the victim and the respondent as to the gravity of the offence. He found that the Crown need only prove the aggravating facts on a balance of probabilities, accepted the victim’s version and sentenced the respondent. The Court of Appeal allowed respondent’s appeal holding that the Crown must prove the aggravating facts beyond a reasonable doubt and reduced the sentence. This appeal raises two issues: (1) whether the Supreme Court of Canada has jurisdiction to entertain appeals arising out of sentencing and (2) if so, whether the Crown must prove aggravating facts beyond a reasonable doubt or upon a balance of probabilities.
Held (Laskin C.J. and Estey and McIntyre JJ. dissenting as to jurisdiction): The appeal should be dismissed.
Per Martland, Ritchie, Dickson and Chouinard JJ.: Appeals against sentence are included under s. 41(1) and not excluded by s. 41(3) of the Supreme Court Act. An expansive reading of s. 41(1) enables this Court to discharge its role better. Although the Court has the jurisdiction to assess fitness or quantum of sentence, as a matter of policy it should not do so. The rule against assessing fitness does not, however, exclude the assessment of important questions of law arising out of sen- tencing. The leave granting process is available to screen out these cases which do not give rise to legal issues of high importance. In this case the question of the proper standard of proof raises an issue of the legality, not the fitness of the sentence.
[Hill v. The Queen, [1977] 1 S.C.R. 827; Smith v. The Queen, [1959] S.C.R. 638; Parkes v. The Queen, [1956] S.C.R. 134, followed; Goldhar v. The Queen, [1960] S.C.R. 60; R. v. J. Alepin Frères Liée, [1965] S.C.R. 359; R. v. MacDonald, [1965] S.C.R. 831; Paul v. The Queen, [1960] S.C.R. 452, not followed; Goldhamer v. The King, [1924] S.C.R. 290, considered; Lake Erie and Detroit River Railway Co. v. Marsh (1904), 35 S.C.R. 197; United States of America v. Link and Green, [1955] S.C.R. 183; Ottawa Electric Co. v. Brennan (1901), 31 S.C.R. 311; Furlan v. City of Montreal, [1947] S.C.R. 216; Chagnon v. Normand (1889), 16 S.C.R. 661; Cully v. Ferdais (1900), 30 S.C.R. 330; McKenzie v. Hiscock, [1967] S.C.R. 781; Goodyear Tire and Rubber Co. of Canada Ltd. v. The Queen, [1956] S.C.R. 303; R. v. Zelensky, [1978] 2 S.C.R. 940; R. v. Skolnick, [1982] 2 S.C.R. 47; Lees v. The Queen, [1979] 2 S.C.R. 749; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265, referred to]
In deciding disputed facts in sentencing, a trial judge should not depart from the traditional criminal standard of proof beyond a reasonable doubt. Sentencing is the critical stage of the criminal process. Facts which justify the sanction are no less important than facts which justify the conviction. Crime and punishment are inextricably linked. Both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence militate in favour of the retention of the criminal standard of proof beyond a reasonable doubt.
[R. v. Cieslak (1977), 37 C.C.C. (2d) 7, overruled; R. v. Sayer, Ont. C.A., released February 27, 1976; R. v. Gortat and Pirog, [1973] Crim. L.R. 648; Alberton Fisheries Ltd. v. The King (1944), 17 M.P.R. 457; R. v. Maitland, [1963] S.A.S.R. 332; Law v. Deed, [1970] S.A.S.R. 374; O’Malley v. French (1971), 2 S.A.S.R. 110; Weaver v. Samuels, [1971] S.A.S.R. 116; R. v. Thompson (1975), 11 S.A.S.R. 217; R. v. Stehbens (1976), 14 S.A.S.R. 240; R. v. O’Neill, [1979] 2 N.S.W. L.R. 582; Bierkowski v. Pearson (1971), 18 F.L.R. 110; Browne v. Smith (1974), 4 A.L.R. 114; R. v. Browne, [1950] N.I.L.R. 20; R. v. Afrtee, [1947] N.I.L.R. 27; R. v. Pinder (1923), 40 C.C.C. 272; R. v. Christopher, Alta. C.A., unreported; R. v. Knight (1975), 27 C.C.C. (2d) 343; R. v. Wettlaufer, 6 W.C.B. 311; R. v. Parenteau, (1980), 52 C.C.C. (2d) 188; R. v. Dimora (1978), 45 C.C.C. (2d) 96; R. v. Boileau; R. v. Lepine (1979), 50 C.C.C. (2d) 189; R. v. Davis and Fancie (1976), 15 N.S.R. (2d) 461; R. v. Sadler, Engl. C.A. (Crim. Div.), November 22, 1973; R. v. Miller, Vella and Walker, Engl. C.A. (Crim. Div.), December 2, 1974; R. v. Taggart (1979), 1 Cr. App. R. (S.) 144; S. v. Manchester City Recorder, [1969] 3 All E.R. 1230; R. v. Proudlock, [1979] 1 S.C.R. 525; Dingwall v. J. Wharton (Shipping), Ltd., [1961] 2 Lloyd’s Rep. 213; United States v. Fatico, 458 F. Supp. 388 (1978); Gardner v. Florida, 430 U.S. 349, 51 L Ed 2d 393 (1977); Gregg v. Georgia, 428 U.S. 153, 49 L Ed 2d 859 (1976); Curr v. The Queen, [1972] S.C.R. 889; Williams v. New York, 337 U.S. 241, 93 L ed 1337 (1949), referred to]
Per Laskin C.J. and Estey and McIntyre JJ. (dissenting): This Court has no appellate jurisdiction to assess the quantum of a sentence and cannot acquire it by reason of alleged errors in the courts below in arriving at or in fixing the quantum. Here, the sentence imposed by the trial judge and reduced by the Court of Appeal was within the statutory limits of the offence. There was no question of legality—in the sense of the legal right to impose the particular sentence—or of constitutionality. This Court is a statutory court with circumscribed jurisdiction in criminal matters (s. 618 Cr. C) and s. 41(1) of the Supreme Court Act should not be opened to matters outside of the Criminal Code unless they relate to constitutionality or legality.
APPEAL from a judgment of the Court of Appeal for Ontario (1979), 52 C.C.C. (2d) 183, allowing respondent’s appeal from the sentence imposed following his plea of guilty of a charge of assault causing bodily harm. Appeal dismissed, Laskin C.J. and Estey and McIntyre JJ. dissenting on the question of jurisdiction.
S. Casey Hill, for the appellant.
Clayton C. Ruby, for the respondent. The reasons of Laskin C.J. and Estey and McIntyre JJ. were delivered by
THE CHIEF JUSTICE (dissenting)—This case raises an important question of jurisdiction, a question that is open notwithstanding that leave to appeal has been given: R. v. Warner, [1961] S.C.R. 144; R. v. J. Alepin Frères Ltée, [1965] S.C.R. 359; R. v. MacDonald, [1965] S.C.R. 831. The jurisdictional issue, raised by the Court suo motu, is simply whether this Court, a statutory Court, is entitled to entertain an appeal as to the proper standard of proof of disputed facts in a sentencing proceeding in respect of an indictable offence to which the accused pleaded guilty.
Counsel for the parties were alerted in advance that jurisdiction would be put in issue when the appeal came on for hearing, notwithstanding that the matter was not raised on the application for leave to appeal nor considered by them in their factums. However, after argument on jurisdiction the Court reserved judgment and felt it advisable to hear the parties on the merits since they had prepared their submissions without concern for jurisdiction, relying, of course, on the fact that leave to appeal had been given. Judgment was also reserved on the merits but they will only be reached if jurisdiction exists, and so I turn to consider that question. I should say at the outset that this is a case which both the Crown appellant and the respondent wish to have decided on the merits, and they joined in contending that this Court had jurisdiction to that end.
It has been and is the view of this Court that it has no jurisdiction to deal with the quantum of a sentence, whether too heavy a penalty was imposed or too light a penalty, so long as it was within the statutory limits. This follows from s. 618 of the Criminal Code in respect of sentences for indictable offences and from the view taken of s. 41(3) of the Supreme Court Act, R.S.C. 1970, c. S-19 in respect of the quantum of a sentence imposed upon a summary conviction. Moreover, this Court has not viewed its general jurisdictional authority in appeals under s. 41(1) of the Supreme Court Act as empowering it to entertain appeals as to the quantum of a legal sentence, although as Cartwright C.J. noted in R. v. MacDonald, supra, at p. 842, the words of the subsection are literally wide enough to embrace such appeals. Section 41(1) in its present formulation reads as follows:
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.
I would refer also to s. 41(3) which is in these words:
(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.
It is only fair to say that there has been no consistency in this Court in its approach to sentence questions, whether arising in relation to a sentence upon a conviction of an indictable offence or arising in relation to a sentence of preventive detention upon a finding that an accused is an habitual criminal. I shall come to the authorities shortly, but the important point to note in respect of what I have called inconsistency is that the issue of quantum appears to have been suppressed in some instances when it has been alleged that a question of law has arisen in a sentence proceeding, as it is alleged to arise here in respect of the proper standard of proof to be met by the Crown when seeking a heavier sentence because of aggravating circumstances which are disputed.
There is a central and, to me, a dominating point to be made. If this Court, as is conceded, has no appellate jurisdiction to assess the quantum of a sentence simpliciter, I do not see how it can acquire it by reason of alleged errors in the courts below in arriving at or in fixing quantum. There is some analogy here—I do not press it as perfect—with administrative law cases where, in order to overcome the effect of a privative clause, errors in the course of a proceeding are raised to the stature of jurisdictional errors when it is clear that the statutory body had jurisdiction to deal with the issues before it and was entitled to be wrong without courting review for errors of law.
A provincial court of appeal has jurisdiction, expressly given, to entertain an appeal against sentence upon a conviction of an indictable offence if leave to appeal is given by the court or a judge thereof, unless the sentence is one fixed by law: see Criminal Code, s. 603(1)(b) and s. 605(1)(b). Leave is generally sought at the time a sentence appeal comes on for hearing, and it is rarely refused. That, at least, was my own experience as a member of the Ontario Court of Appeal for almost five years. Rules of Court govern the procedure on appeal and the time period within which leave must be sought, but the time may be extended: see Criminal Code, s. 607(1) and (2). Excessive delay may well be a ground for refusing leave or refusing to extend the time but this, I understand, is not frequent. The courts of appeal prefer, in the interests of fairness, to dispose of sentence appeals on their merits. There is no such general appellate authority in respect of sentence conferred upon the Supreme Court of Canada.
The leading case in this Court on sentence appeals under the equivalent of our present statu- tory authority has been Goldhar v. The Queen, [1960] S.C.R. 60. It was distinguished, and in my opinion properly so, in Hill v. The Queen, [1977] 1 S.C.R. 827; and on a rehearing, Hill v. The Queen, [1977] 1 S.C.R. 827, which I will consider in due course. In the Hill cases, Pigeon J. spoke for the whole Court on the question of its jurisdiction to entertain an appeal from a determination of the provincial Court of Appeal that it had the power to increase a sentence imposed upon an accused upon a motion to that end by the Crown made during the hearing of a sentence appeal by the accused alone. Although I was in a minority of four on the question of the Court of Appeal’s power, I subscribed fully to the view expressed by Pigeon J. that this Court had jurisdiction because it was not called on to deal with a sentence appeal but with the legal authority of the provincial court of appeal. In the course of his reasons, Pigeon J. canvassed the cases on the issue now before us and he has, in so doing, relieved me of the necessity of going through them as meticulously as he did. Nonetheless, I do wish to review them to provide perspective for the present case.
Goldhar was an application for leave to appeal heard by a Bench of five. Fauteux J., as he then was, delivered the judgment of the Court (Cartwright J., as he then was, alone dissenting) and he held that this Court had no jurisdiction to entertain an appeal against a sentence imposed on a conviction of an indictable offence. I disagree with Pigeon J.’s observation in the Hill cases that Goldhar was not binding and should not be followed. Although I said in my reasons in the first Hill hearing, at p. 830, that I agreed with Pigeon J. that Goldhar should be overruled, this was only in the context of the issue in the Hill case and only in so far as Goldhar might be taken as prohibiting an appeal to this Court on the legality of a sentence or on the power of a Court to increase a sentence against which no appeal was taken. I can agree that Goldhar was not binding (none of our decisions now are, theoretically, binding) but it was unnecessary to say that it should not be followed when the Hill cases were of a completely different order than Goldhar.
Goldhar was decided at a time when the Supreme Court Act contained as s. 41(1) a provision which, for present purposes, was similar to the present section above quoted. It was preceded by Goldhamer v. The King, [1924] S.C.R. 290, an easier case for rejecting jurisdiction as to sentence, because when it was decided there was no provision in the Supreme Court Act conferring jurisdiction on this Court in criminal matters, nor was the Act even neutral as it now literally is, because it expressly excluded criminal causes from its conferment of appellate jurisdiction. Reliance had to be placed therefore on the then equivalent of the present s. 618 which spoke, inter alia, of appeals by leave from judgments setting aside or affirming a conviction of an indictable offence. Hence, jurisdiction was denied to entertain an appeal from a judgment of the Quebec Court of Appeal increasing a sentence. Goldhamer was, quite clearly, an easier case for refusal of jurisdiction than Goldhar.
Prior to Goldhar but after the introduction of s. 41(1) jurisdiction, this Court was called on to deal with an application for leave to appeal in Goodyear Tire and Rubber Co. of Canada Ltd. v. The Queen, [1956] S.C.R. 303, reported on the merits only. Pigeon J.’s research in the Hill cases disclosed that the question of the Court’s jurisdiction was raised on the application for leave and, indeed, there was re-argument before leave to appeal was granted, the Court’s Minute Book carrying a note that the majority of the Court was of the opinion that it had jurisdiction. What was put in issue in the Goodyear Tire case was an order of prohibition under the Combines Investigation Act following a conviction upon an indictment for an offence under the Act. The Court of Appeal of Ontario treated the appeal to it as a sentence appeal, under a relevant definition, and it is clear that the appeal to this Court was pursuant to s. 41 of the Supreme Court Act. In so far as Pigeon J. intimates in the Hill cases that this Court was giving leave in a sentence matter, I disagree with him. The real issue in this Court in the Goodyear Tire case was the constitutionality of a prohibitory order forbidding the repetition of the offence of which the corporation had been convicted. That was surely a question within the competence of this Court, and the granting of leave had nothing to do with the fact that the prohibitory order was characterized as a sentence for the purposes of an appeal to the Ontario Court of Appeal.
Paul v. The Queen, [1960] S.C.R. 452 was decided shortly after Goldhar and it affirmed the principle of Goldhar in relation to a summary conviction matter that cases which fell outside of s. 41(3) were not on that account brought within s. 41(1), any more than were cases of indictable offences which fell outside of what is now s. 618 of the Criminal Code. Paul v. The Queen was not an attempted sentence appeal in the same sense as Goldhar but was rather a case where the provincial Court of Appeal refused to hear an appeal in respect of a summary conviction or, alternatively, refused to hear an appeal from the dismissal of an appeal in the matter to a County Court Judge. As such, notwithstanding that it was a bare majority decision, it is squarely within this Court’s plurality decision in Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639 where this Court held that it had no jurisdiction to give leave to appeal from a decision of the Federal Court of Appeal from the latter’s refusal to grant leave to it where such leave was required to entitle that Court to deal with the case. Hence, the denial of leave in the Paul case does not, under our present view, depend on whether a matter of sentence is involved but would equally result where required leave to appeal on any matter is denied by an appellate Court and it is sought to bring the matter here.
The same ruling, denial of leave, that was made in Paul was made in R. v. J. Alepin Frères Ltêe, [1965] S.C.R. 359. This Court affirmed again in the proposition that matters not mentioned in s. 41(3) are not thereby brought within s. 41(1) and thus sentence appeals are excluded.
Before turning to the latest case on sentence appeals in this Court, Lees v. The Queen, [1979] 2 S.C.R. 749, a short summation is in order. The quantum or fitness of a sentence, as such, no other considerations being involved, does not engage the jurisdiction of this Court. This was re-affirmed in the Hill cases by Pigeon J. However, quantum or fitness is not involved where the Court is asked to consider the legality of a sentence, legality in the sense of the legal right to impose the particular sentence as contrasted with the imposition of a lawful sentence which is alleged to have been the result of errors of law in determining its fitness. So too, quantum is not involved where the constitutionality of a certain type of sentence is put in issue. Nor is it involved where the Court is asked, in the Hill cases, whether there is power in a provincial appellate court to increase a sentence upon a motion by the Crown made during a sentence appeal taken by the accused alone, there having been no cross-appeal by the Crown. In such cases, the question is one of judicial or legislative authority to act and not one whether, there being such authority, it was improperly exercised.
Another type of case which can properly rest on s. 41 of the Supreme Court Act is Smith v. The Queen, [1959] S.C.R. 638 where this Court granted leave to appeal from the dismissal of an application for certiorari to quash a finding of delinquency against a child under the Juvenile Delinquents Act. The appeal was allowed and it is clear that s. 41(1) was an appropriate base for hearing the appeal which concerned a substantive matter. Leave could have been refused as a matter of discretion but jurisdiction to grant it was beyond question.
Since s. 41(1) of the Supreme Court Act is couched in very broad terms and it is, in effect, left to this Court to determine the ambit of its provisions, why should this Court set its face against entertaining applications for leave to appeal from sentencing considerations? The ordinary expectation would be that provisions to that end, if thought desirable, would be found in the Criminal Code. They are not, and I think that Fauteux J. demonstrated sufficiently in Goldhar why it would be improper to escape the limitations of what is now s. 618 of the Criminal Code by resorting to s. 41(1). The question, in so far as it is one of policy, is answered by the fact that this Court is a statutory court, with a circumscribed jurisdiction in criminal matters, and s. 41(1) should not be opened to matters outside of the Criminal Code unless they relate to such things as constitutionality or judicial power or authority.
Lees v. The Queen appears to be out of step with the authorities that I have canvassed to this point. I was a member of the Court which delivered a unanimous judgment in that case. The opening line of the judgment assesses the appeal as one attacking the legality of a sentence but the narrative of the case shows that it was not legality as I explained above, but rather an attack on a lawful sentence allegedly imposed by the trial judge by erroneously taking into account evidence of a potential but untried charge of an offence other than the robbery to which the accused pleaded guilty. Although in the result the appeal was dismissed, jurisdiction was nonetheless taken and, wrongly so, in the light of the cases that I have examined in these reasons. I examined the material filed on the application for leave to appeal in the Lees case, an application upon which I sat along with Dickson and Estey JJ. Our jurisdiction to give leave, that is to entertain the proposed appeal, was not raised either in the application for leave or in the material or argument presented at the hearing of the appeal. I readily confess to a lapse in not raising the question from the Bench, either when leave was sought or when the appeal was heard. In my opinion, we were wrong to have accepted the case for hearing when we had no jurisdiction to do so.
The present case cannot, any more than the Lees case, be considered as one where the legality of a sentence is in issue. The trial judge, in imposing a term of imprisonment of four and one-half years, was within the sentence limits of the offence, and so was the Court of Appeal in reducing the sentence to two years. There is no question of legality here as there was in the Hill cases or of constitutionality as there was in the Goodyear Tire case. Rather, the question in the present case was whether the trial judge, in imposing sentence, must be governed by a standard of proof beyond a reasonable doubt on disputed facts and not merely by a standard of proof on a balance of probabilities. By thus judicializing the sentencing proceedings, do we bring a quantum case within the jurisdiction of this Court under s. 41(1) of the Supreme Court Act? If with respect to the standard of proof as here or with respect to the error alleged in the Lees case, why not with respect to other considerations which enter or may enter into the determination of a fit sentence? The possibilities are various, if not infinite, of charging the sentencing judge with errors as, for example, applying the wrong principles, failing to apply correct sentencing principles, taking irrelevant matters into consideration, failing to admit or exclude certain evidence offered at the sentencing hearing, and so on. All these matters are, of course, significant because they may affect the quantum of a sentence but they have no effect upon the trial judge’s power to act. If there is to be a circumscription or enlargement of the range or character of the considerations that he may weigh or the standards that he may apply, it falls to the provincial appellate court to give the necessary directions as part of the sentencing process.
There is a wide discretion in a trial judge on sentence, a discretion made evident in the latitude he is given where only a maximum sentence is fixed for an offence or where only a minimum is fixed or a minimum and a maximum. If he imposes a sentence within the prescribed limits, the statutory check upon him lies in the Court of Appeal, provided leave is given. How can this mean that the Supreme Court may still monitor the considerations that should enter into the fixing of a permissible sentence or set standards for the exercise of discretion by a sentencing judge? I do not seek to rely on it here but reference may appropriately be made to s. 44 of the Supreme Court Act which, to put it generally, excludes any right of appeal from a discretionary order.
It seems to me that once the lid is lifted for the proper standard of proof of disputed facts, it must equally be open for the assessment by this Court of other considerations that may enter into a sentence. To say that this Court still retains control through its power to refuse leave is to yield the principle. This is hardly the way to deal with initial jurisdiction if it does not clearly exist.
I do not doubt the importance of the issue raised by this case on its merits. But important issues of criminal law, substantive criminal law, abound without it being contended that this Court can entertain them, as, for example, where a conviction or an acquittal or a new trial is challenged because of an alleged error of mixed fact and law or an error of fact alone. Unless there is a question of law alone (or of jurisdiction) in the courts below, this Court has no jurisdiction to entertain such criminal appeals; they stop in the provincial appellate courts. For the reasons I have given, it cannot be said that what cannot be brought within s. 618 can be redressed by invoking s. 41(1).
I turn now to consider, for their analogical value, cases in this Court dealing with dangerous offenders (habitual criminals) and sentences of preventive detention, now referred to as sentences of detention for an indeterminate period. Criminal Code, ss. 687 to 695.1, as Part XXI, govern the present dangerous offender provisions which, as enacted by 1976-77 (Can.), c. 53, s. 14, came into force on October 16, 1977. Under s. 694 there is an appeal to the provincial Court of Appeal from a sentence of indeterminate detention on any ground of law or fact or mixed law and fact. The Attorney General is given a right of appeal to the Court of Appeal against the dismissal of an application for an order for a sentence of indeterminate detention but only on a question of law. There is no provision in Part XXI which confers any right of appeal to the Supreme Court. In my opinion, although this Court may be entitled to entertain an appeal from a finding that an offender is a dangerous offender where a question of law is raised, I do not think that there is any jurisdiction in this Court to review a sentence of indeterminate detention.
There have been no cases brought here under the present Part XXI, but there was a course of decision on predecessor provisions. Preventive detention for persons found to be habitual criminals was introduced into the Criminal Code by 1947 (Can.), c. 55, adding thereto ss. 575A to 575H. Under these provisions, an allegation that an accused was an habitual criminal was to be added to the indictment after the charge of the substantive offence. More important, under s. 575E it was provided that a person convicted and sentenced to preventive detention may appeal against his conviction and sentence, and “the provisions of this Act relating to an appeal from a conviction for an indictable offence shall be applicable thereto”. In thus combining the finding of habitual criminality and the sentence of preventive detention in a composite right of appeal to be treated as an appeal from a conviction of an indictable offence, the Criminal Code gave the Supreme Court power to entertain such an appeal where a question of law was involved: see R. v. Robinson, [1951] S.C.R. 522. However, in Brusch v. The Queen, [1953] 1 S.C.R. 373 it was held that the allegation of being an habitual criminal was not a charge of a criminal offence for the purpose of entitling the accused to elect as to his mode of trial but because the sentence of preventive detention attached to the finding that the accused was an habitual criminal, the case could come here by reason of a dissent on a question of law in the provincial Court of Appeal.
The 1947 preventive detention provisions were replaced by 1953-54 (Can.), c. 51 and recast as Part XXI of the Criminal Code. A new procedure was instituted under s. 660 to provide for an application for the imposition of a sentence of preventive detention, in addition to the sentence for the substantive offence, if the accused was found to be an habitual criminal and the Court was thereby of opinion that it was expedient for the protection of the public so to sentence him. Section 667 provided for an appeal to the Court of Appeal against a sentence of preventive detention and a right of appeal was given to the Attorney General against dismissal of an application. There was no longer any such provision as appeared in the former s. 575E.
Parkes v. The Queen, [1956] S.C.R. 134, came to this Court under the new procedure. It is a case that presents some difficulty because my former brother Pigeon in the Hill cases viewed it as asserting jurisdiction in this Court under s. 41(1) to entertain a conjoint appeal against a finding of habitual criminality and a consequent sentence of preventive detention, and as giving jurisdiction to quash the sentence of preventive detention alone. On the other hand, my brother Ritchie in Poole v. The Queen, [1968] S.C.R. 381 (true, in a dissenting judgment, speaking for himself and three other members of the Court) considered that the Parkes case did not support authority in this Court to entertain an appeal from the sentence of preventive detention in insolation from an appeal on the finding of the status of being an habitual criminal. Ritchie J. pointed out in Poole that there was a change made by 1960-61 (Can.), c. 43, s. 33(2) in Criminal Code, s. 660 as it stood when the Parkes case was decided. The change in the words of the amended provision was that the sentence of preventive detention could be in lieu of the sentence for the substantive offence or in addition thereto. Ritchie J. in Poole did not question this Court’s jurisdiction to invoke s. 41(1) in appeals from findings as to status and he added these words (at p. 404):
I have read the habitual criminal cases which have come to this Court since the Parkes case and it appears to me that until the case of The Queen v. MacDonald,…there was no case of an appeal against sentence when the question of the finding as to status was not in issue. In each case the appeal was treated as an appeal from the “habitual criminal” finding and was decided on that basis.
However, the majority view in the Poole case was that this Court did have jurisdiction under s. 41(1), particularly because the matter did not come within s. 41(3), to deal with the sentence of preventive detention alone. The majority in Poole did not discuss the Parkes case in detail, saying only in the words of Cartwright C.J.C. (speaking for himself and for Judson and Hall JJ.) that the jurisprudence of the Court on the question of its jurisdiction to give leave and to hear an appeal from a sentence of preventive detention was settled and applied consistently since the decisions in Brusch and Parkes. Parkes v. The Queen is reported on the merits in [1956] S.C.R. 768. None of the five judges of this Court who sat on the case made any mention of jurisdiction, that question having been dealt with on the application for leave, reported in [1956] S.C.R. 134. On the merits, the sentence of preventive detention was set aside by reason of a procedural error in violation of the statutory prescriptions governing the hearing of an application for such detention. Nor was there anything in the hearing on the merits to indicate that the Court was concerned conjointly with the finding that the accused was an habitual criminal and with the sentence of preventive detention. It was perhaps unnecessary to deal with that finding because it fell away once the sentence of preventive detention was set aside. Yet it is important to notice that leave to appeal in Parkes was given under s. 41(1) of the Supreme Court Act (in the words of this Court on the application for leave) “from the affirmation by the Court of Appeal of the decision of His Honour Judge Grosch that the applicant is an habitual criminal”. Yet, as I indicated, there is not a word on the hearing of the appeal about the finding of habitual criminality.
In assessing whether there was jurisdiction in Poole, consideration had, however, to be given to R. v. MacDonald, [1965] S.C.R. 831 in which the Court majority, including Cartwright J., as he then was, took an adverse view to jurisdiction.
In R. v. MacDonald, the Court was unanimous in the view that the Criminal Code did not support jurisdiction to entertain an appeal from a sentence of preventive detention. In that case there was a finding that the accused was an habitual criminal and a sentence of preventive detention was imposed upon him in lieu of a sentence for the substantive offence. Although leave to appeal this sentence was granted, the appeal was quashed, Taschereau C.J.C. and Martland J. dissenting. The majority of the Court noted that the finding as to status was not in issue but that it was the conviction of an indictable offence that gave rise to the sentence of preventive detention. Accordingly, the Goldhar case governed to preclude an appeal by the Crown from an order of the provincial Court of Appeal which had set aside the order of preventive detention. It would be, said the majority, incongruous if an appeal as to sentence were allowed under s. 41(1) of the Supreme Court Act. The two dissenting judges said that the Goldhar case was inapplicable because the punishment by way of a sentence of preventive detention was not imposed for an indictable offence, but because the accused had the status of an habitual criminal and it was expedient for the protection of the public to sentence him. The dissenting judges rejected the contention that because the Crown was limited to questions of law in appeals to a Court of Appeal, it could not invoke s. 41(1) here and seek leave thereunder, it being understood that it would be limited to questions of law. Moreover, it was their view that since the accused could appeal, there was no valid reason for precluding the Crown.
Cartwright J., as he then was, in an opinion concurring with the majority, distinguished an appeal by the accused from a sentence of preventive detention (which he said has been recognized by this Court, as in the Parkes case) and an appeal by the Crown from the dismissal of an application for such a sentence or the setting aside of such a sentence. In this, he relied on the majority opinion of Ritchie J. He also noted that the question of a right of appeal to this Court was not discussed in the Brusch case, and that although the Robinson case was correctly decided under the legislation then in force, the subsequent changes in wording made the Robinson case no longer applicable to support a Crown appeal.
The majority decision in the MacDonald case rests on the following observation of Ritchie J. (at p. 851 of [1965] S.C.R.):
As has been pointed out, the Criminal Code makes express provision under s. 667 for appealing to the court of appeal of a province from the disposition made by a trial judge of an application for preventive detention and by s. 667(2) the Attorney General is limited to “any ground of law” in appealing from the dismissal of such an application. If counsel for the appellant were right in his contention that an appeal can be had to this Court under s. 41(1), at the instance of the Crown, from an order of the court of appeal setting aside a sentence of preventive detention, it would mean that although the Crown is restricted to “any ground of law” when appealing to the Court of Appeal of a province against the dismissal of an application for preventive detention by a trial judge, it can obtain access to this Court on unrestricted grounds when appealing from a judgment of the Court of Appeal which has the same effect. I cannot think that Parliament intended such an anomaly to result from the provisions of s. 667(2) of the Criminal Code and s. 41(1) of the Supreme Court Act.
The limitation to “any ground of law” of the right of the Attorney General to appeal to the Court of Appeal was first enacted by Chapter 43 of the Statutes of Canada, 1960-61, and s. 667(2) in its present form has not been previously considered by this Court.
I do not find the cases in this Court on sentence of preventive detention and on sentence of indeterminate detention of any assistance in coming to a conclusion on the issue of jurisdiction under consideration. Those cases would appear to have an acceptable rationale where they invoke s. 41(1) in connection with a finding of habitual criminality and a consequent sentence of preventive or indeterminate detention. This follows from the consistent view of this Court that a finding that a person is an habitual criminal is a finding of a status and is not to be considered as a finding of guilt of an indictable offence. Certainly, if the consequent sentence flows from the finding of the status of being an habitual criminal and is dependent on that finding, the two matters can be considered as intertwined for the purposes of an appeal to this Court by leave under s. 41. This was the view of Spence J. and of Pigeon J. in their separate reasons in Poole. If they are to be considered separately, I question whether, at least under the present provisions governing imposition of sentences of indeterminate detention there can be any jurisdiction in this Court to entertain an appeal from the sentence alone.
However, as I have already said, the cases on habitual criminality and sentences of preventive or indeterminate detention do not assist on the question in issue here. They rather persuade me, by their special character, as having no relevance for jurisdiction in sentence proceedings following a conviction of an indictable offence or a summary conviction offence.
There is an understandable concern with