R. v. Hinse

R. v. Hinse
Collection
Supreme Court Judgments
Date
1995-11-30
Report
[1995] 4 SCR 597
Case number
24320
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Quebec
Subjects
Action
Appeal
Notes
SCC Case Information: 24320
Decision Content
R. v. Hinse, [1995] 4 S.C.R. 597
Réjean Hinse Applicant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Hinse
File No.: 24320.
1995: October 2; 1995: November 30.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
application for reconsideration of an order refusing leave to appeal
Practice ‑‑ Supreme Court of Canada ‑‑ Application for reconsideration of order refusing leave to appeal from Court of Appeal's judgment ‑‑ Policy governing such applications ‑‑ Unique question of jurisdiction raised by application ‑‑ Whether application for reconsideration should be allowed ‑‑ Rules of the Supreme Court of Canada, SOR/83‑74, Rules 7, 51(12).
Appeal ‑‑ Supreme Court of Canada ‑‑ Jurisdiction ‑‑ Accused appealing conviction for armed robbery 27 years later on basis of fresh evidence ‑‑ Court of Appeal allowing accused's appeal and setting aside his conviction but entering stay of proceedings for abuse of process instead of ordering new trial or acquittal ‑‑ Whether Supreme Court has jurisdiction to entertain application for leave to appeal from Court of Appeal's order entering stay of proceedings ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40(1) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(8) .
The applicant was convicted of armed robbery in 1964. The Quebec Court of Appeal allowed his appeal and set aside his conviction in 1994 on the basis of fresh evidence. However, instead of directing a verdict of acquittal or ordering a new trial pursuant to s. 686(2) of the Criminal Code , the Court of Appeal invoked its inherent authority and entered a stay of proceedings for abuse of process. Although successful in the result, the applicant, perceiving that he had been deprived of the opportunity to obtain a judicial pronouncement of innocence through a directed verdict of acquittal, or alternatively, through the granting of a new trial, sought leave to appeal the order imposing the stay to this Court. His application for leave was denied. The applicant then filed an application for reconsideration of the order refusing leave. The sole issue in this case is whether an accused may seek review in this Court of an appellate court order directing a stay of proceedings rendered in the context of a larger judgment setting aside an accused’s conviction.
Held (L'Heureux‑Dubé J. dissenting): The application for reconsideration of the order refusing leave to appeal should be allowed and leave to appeal should be granted.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The Court does not normally reconsider its decisions regarding leave to appeal. This judicial policy is well enshrined in Rule 51(12) of the Supreme Court Rules, which provides that "[t]here shall be no re‑hearing on an application for leave or a motion". Given the large number of leave applications processed annually, it is simply not feasible for this Court to second‑guess its initial determinations of leave regularly without significantly undermining its indispensable role as a general court of appeal for the better administration of the laws of Canada. Notwithstanding the strict language of Rule 51(12), however, this Court may, in exceptional cases, direct a hearing to reconsider a decision made on an application for leave by virtue of its residual authority under Rule 7. Circumstances warranting reconsideration will be exceedingly rare. Given the exceptional and unique question of jurisdiction which came to light in the course of this application, this Court should exercise its discretion under Rule 7 to hear the present application.
The question of jurisdiction arises in this case because the Court of Appeal allowed the applicant's appeal and set aside his conviction for an indictable offence. Under the Criminal Code , an accused's right to appeal a conviction to this Court for an indictable offence is limited to cases where the accused's conviction at trial is affirmed by the court of appeal rather than set aside. The applicant has thus no right to appeal the order of a stay of proceedings under the procedural regime set out in the Code. He may, however, seek leave to appeal this particular order under s. 40(1) of the Supreme Court Act . Such an appeal is not prohibited by the language of either s. 674 of the Code or s. 40(3) of the Act.
A trial court has the power to suspend a course of abusive proceedings which offend the community's sense of fair play, and an appellate court also possesses an analogous power to direct a stay of proceedings. Although a court of appeal's power to order a stay of proceedings for abuse of process traces its origins to the common law, when the court of appeal imposes such a stay it is necessarily engaged in an exercise of its residual order power under s. 686(8) of the Criminal Code to "make any order . . . that justice requires". The statutory form of this judicial power does not alter the substantive constraints imposed on the exercise of the power by the common law. Unlike orders for an acquittal or for a new trial under s. 686(2) of the Code, which are inextricably linked to the resolution of the merits of an appeal, an order under s. 686(8) is by nature ancillary to the underlying judgment rendered by the court. The court's s. 686(8) power is often exercised with regard to considerations that are well removed from the issue of the accused's innocence or culpability and may even be exercised independently of a prior order under s. 686(2) . Given the inherently supplementary and remedial nature of an order imposed under s. 686(8) , such an order does not represent a functionally integral part of a "judgment . . . setting aside or affirming a conviction" within a purposive interpretation of s. 40(3) and the definition of "judgment" in s. 2 of the Supreme Court Act . Rather, an order rendered under s. 686(8) represents a separate, divisible judicial act from which the accused or the Crown may independently seek leave to appeal under s. 40(1) .
Such an interpretation is in accordance with sound judicial policy. When a court of appeal allows an accused's appeal and enters an order for an acquittal or for a new trial under s. 686(2) of the Code, it is necessarily entering an order in furtherance of its underlying judgment. But when a court of appeal enters an order under s. 686(8) , there is a risk that it may enter an order which is at direct variance with its underlying judgment. Given this troubling concern, a more generous interpretation of s. 40(1) (and a correspondingly more narrow interpretation of s. 40(3)) should be adopted, thereby facilitating this Court's supervisory role in ensuring the underlying consistency of appellate court orders rendered under the procedural regime of the Criminal Code . An accused or the Crown ought to be permitted to seek leave to appeal the legality of an order rendered under s. 686(8) independently as a "final or other judgment . . . of the highest court of final resort in a province" under this Court’s general jurisdiction under s. 40(1) of the Supreme Court Act .
Accordingly, the applicant may seek leave to appeal the legality of the stay of proceedings for abuse of process entered by the Court of Appeal notwithstanding the fact that the court allowed his original appeal and set aside his conviction. Since the application for reconsideration raises a genuine and serious question of law of sufficient public importance to warrant review by this Court, this application should be allowed and leave to appeal granted. It is unnecessary to offer any further comment on the legality and constitutionality of the stay of proceedings. Consistent with the Court's established practice of refusing to elaborate justifications for granting or denying leave to appeal, any potential discussion of substantive issues raised by this case should be postponed until the Court is seized with the merits of the appeal.
Per L'Heureux‑Dubé J. (dissenting): It was agreed with the majority that a court of appeal may render orders which are ancillary and of supplemental character to its judgment under s. 686(8) of the Criminal Code and this Court has jurisdiction to entertain an application for leave to appeal from such an order under s. 40(1) of the Supreme Court Act . Similar to orders in Kienapple or entrapment situations, orders directing a stay of proceedings, as in this case, can be entered by appellate courts.
The application for reconsideration of this Court's order refusing leave to appeal should be dismissed. The Court of Appeal held that ordering a new trial would constitute an abuse of process and entered a stay of proceedings. It is well-settled law that courts can order a stay of proceedings. Whether or not the Court of Appeal was right in exercising its discretion in this way in this case, the exercise by provincial appellate courts of their discretionary power to enter a stay of proceedings does not raise a genuine and serious question of law of sufficient "public importance" to warrant granting leave to appeal.
Cases Cited
By Lamer C.J.
Referred to: R. v. Stolar, [1988] 1 S.C.R. 480; Reekie v. Messervey, [1990] 1 S.C.R. 219; Johnson v. The Queen, [1994] 3 S.C.R. viii; R. v. Barnes, [1991] 1 S.C.R. 449; R. v. MacKenzie, [1993] 1 S.C.R. 212; R. v. Laba, [1994] 3 S.C.R. 965; Meddoui v. The Queen, [1991] 3 S.C.R. ix; R. v. Finta, [1994] 1 S.C.R. 701; R. v. Keegstra, [1995] 2 S.C.R. 381; R. v. O'Connor (1994), 89 C.C.C. (3d) 109; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Young (1984), 40 C.R. (3d) 289; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Scott, [1990] 3 S.C.R. 979; R. v. Power, [1994] 1 S.C.R. 601; R. v. E. (L.) (1994), 94 C.C.C. (3d) 228; R. v. B. (A.J.) (1994), 90 C.C.C. (3d) 210, rev'd [1995] 2 S.C.R. 413; R. v. Zurlo (1990), 57 C.C.C. (3d) 407; Hill v. The Queen, [1977] 1 S.C.R. 827; R. v. Gardiner, [1982] 2 S.C.R. 368; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Provo, [1989] 2 S.C.R. 3; Elliott v. The Queen, [1978] 2 S.C.R. 393; Kienapple v. The Queen, [1975] 1 S.C.R. 729; Terlecki v. The Queen, [1985] 2 S.C.R. 483; R. v. Sullivan, [1991] 1 S.C.R. 489; R. v. Wade (1994), 29 C.R. (4th) 327, rev'd [1995] 2 S.C.R. 737.
By L'Heureux‑Dubé J. (dissenting)
R. v. Terlecki (1983), 4 C.C.C. (3d) 522, aff'd [1985] 2 S.C.R. 483; R. v. Provo, [1989] 2 S.C.R. 3; R. v. Sullivan, [1991] 1 S.C.R. 489; R. v. Barnes, [1991] 1 S.C.R. 449; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Scott, [1990] 3 S.C.R. 979; R. v. Power, [1994] 1 S.C.R. 601.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 24(1) .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 674 , 683(3) , 686(1) (a) [am. 1991, c. 43, s. 9 (Sch., item 8)], (2), (4) [am. c. 27 (1st Supp.), s. 145], (8), 691 [am. c. 34 (3rd Supp.), s. 10; 1991, c. 43, s. 9 (Sch., item 9)], 693(1) [am. c. 27 (1st Supp.), s. 146; am. c. 34 (3rd Supp.), s. 12].
Criminal Code, S.C. 1953‑54, c. 51, s. 288(d) [now R.S.C., 1985, c. C‑46, s. 343 (d)].
Rules of the Supreme Court of Canada, SOR/83‑74, Rules 7, 29(1) [rep. & sub. SOR/93‑488, s. 2 ], 51(12).
Supreme Court Act, R.S.C., 1985, c. S‑26, ss. 2 "judgment", 40(1) [rep. & sub. 1990, c. 8, s. 37], (3).
Authors Cited
Jacob, I. H. "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23.
APPLICATION for reconsideration of an order of the Supreme Court of Canada, [1995] 1 S.C.R. viii, refusing leave to appeal from a judgment of the Quebec Court of Appeal (1994), 64 Q.A.C. 53, setting aside the accused's conviction for armed robbery and ordering a stay of proceedings. Application allowed and leave to appeal granted, L'Heureux‑Dubé J. dissenting.
Jean‑François Longtin and Josée Ferrari, for the applicant.
Pierre Sauvé, for the respondent.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
Lamer C.J. --
I. Introduction
1 This is an application for reconsideration of an order of this Court refusing leave to appeal. The applicant, Réjean Hinse, was convicted of armed robbery over 30 years ago. In 1991, on the presentation of fresh evidence, the Quebec Court of Appeal allowed his appeal and set aside his conviction. However, instead of directing a verdict of acquittal or ordering a new trial, the Court of Appeal invoked its inherent authority and entered a stay of proceedings for abuse of process. The applicant, perceiving that he had been denied a clear judicial pronouncement of his innocence, sought leave to appeal the legality and constitutionality of the stay. His initial request for leave was denied, and he promptly filed an application for reconsideration. Given the serious and exceptional question of jurisdiction presented by this application, we convened an oral hearing to consider the application and directed the parties to limit their argument to the threshold question of this Court's jurisdiction. Accordingly, the sole issue presented by these proceedings concerns whether or not an accused may seek review in this Court of a discrete order entered by a court of appeal in the context of a larger judgment setting aside an accused’s conviction.
II. Factual and Procedural Background
2 On the evening of December 14, 1961, five armed individuals forced their way into a private home in Mont-Laurier, beating and robbing Mr. and Mrs. Henriot Grenier. A short time afterwards, through a casual encounter, the victims identified the applicant as one of the armed perpetrators. In a subsequent police line-up, the victims confirmed their identification of the applicant. On September 23, 1964, on the basis of this identification and other circumstantial evidence, Judge Omer Côté of the Court of Sessions of the Peace found the applicant guilty of armed robbery under s. 288(d) of the Criminal Code, S.C. 1953-54, c. 51 (now s. 343 (d) of the Criminal Code, R.S.C., 1985, c. C-46 ) and sentenced him to 15 years imprisonment. After approximately five years in prison, the applicant was released on parole. During the period of his incarceration up to the present day, the applicant has consistently maintained his innocence.
3 In June 1991, the Quebec Court of Appeal granted the applicant’s motion to extend the operative limitation periods for appeal. In November of the same year, the court granted the applicant’s motion to submit fresh evidence which challenged the reliability of the original line-up identification and the veracity of the surrounding circumstantial evidence. On the basis of this new body of evidence, the Quebec Court of Appeal allowed the appeal and set aside the applicant’s conviction under s. 686(1) (a) of the Criminal Code . Applying the standard set out by this Court in R. v. Stolar, [1988] 1 S.C.R. 480, the Court of Appeal held that the original conviction could not be maintained in light of the fresh evidence presented by the applicant. Steinberg J.A., speaking for the court, turned to the question of the appropriate disposition for the case. The strict wording of s. 686(2) of the Criminal Code appeared to present the court with only two options: the entry of a verdict of acquittal or the order of a new trial. Steinberg J.A., however, rejected both alternatives. To begin, he concluded that a verdict of acquittal was not warranted given the remaining evidence submitted at trial which had not been impugned on appeal. Furthermore, he held that a new trial was also not appropriate given the immense lapse of time since the original conviction. But Steinberg J.A. ruled that the binary structure of s. 686(2) did not exhaust his inherent powers to dispose of the case. More specifically, he held that he had the authority to direct a stay of proceedings pursuant to a number of recent Supreme Court precedents. As he wrote:
The Supreme Court of Canada has recognized that despite the wording of Section 686 of the Criminal Code , there remains vested in a court of appeal a residual power to order a stay of proceedings in the most exceptional circumstances. R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Power [[1994] 1 S.C.R. 601]. [Parallel citations omitted.] The circumstances outlined render this one of those exceptional cases which justifies the use of the residual power of this court to order a stay of proceedings.
((1994), 64 Q.A.C. 53, at p. 60.)
4 Accordingly, Steinberg J.A. vacated the applicant’s conviction, and entered a stay of proceedings rather than directing a verdict of acquittal or granting a new trial. As an aside, it should be noted that Steinberg J.A. appeared to locate his power to impose a stay of proceedings for abuse of process at common law. Steinberg J.A. made no finding of a constitutional abuse of process contrary to the "principles of fundamental justice" which triggered his remedial powers to impose a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms .
5 In October 1994, the applicant filed an application for leave to appeal to this Court challenging the legality and constitutionality of the stay. More specifically, he sought leave to appeal on the following grounds:
[translation]
A- First Question
1-Having allowed the appeal and set aside the conviction of the applicant for the reason that: “The fresh evidence as well as the various irregularities which occurred are more than sufficient to justify allowing the appeal under [s.] 686(1)(a) of the Criminal Code ”, and having ruled to the effect that “Special circumstances militate against proceeding with a new trial in this case”, did the Court of Appeal commit an error of law in ordering a stay of proceedings instead of entering a verdict of acquittal in accordance with s. 686(2) (a) Cr. C.?
2-In the circumstances of this case, did the stay of proceedings as opposed to an acquittal constitute a violation of the applicant’s fundamental rights guaranteed under s. 7 of the Canadian Charter of Rights and Freedoms ?
B- Second Question
Having admitted the body of fresh evidence presented under the aegis of s. 683 Cr. C. and having concluded that this fresh evidence was more than sufficient to allow the appeal under s. 686(1) (a) Cr. C., did the Court of Appeal commit an error of law in failing to acquit the applicant pursuant to s. 686(2) (a) Cr. C. on the basis of the criterion of s. 686(1) (a)(i) Cr. C., on the ground that, in light of the evidence as a whole, the trier of fact, properly instructed, could not have reasonably found the accused guilty beyond a reasonable doubt? [Emphasis in original.]
6 The applicant’s initial request for leave to appeal was denied by this Court: Hinse v. The Queen, [1995] 1 S.C.R. viii. He subsequently filed an application for reconsideration of the order refusing leave. This Court convened an oral hearing to address the issue, and directed the parties to limit their arguments to the threshold question of jurisdiction. The application was heard by this Court on October 2, 1995, and we reserved judgment.
III. Relevant Statutory Provisions
Criminal Code, R.S.C., 1985, c. C-46
674. No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences.
686. ...
(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and
(a) direct a judgment or verdict of acquittal to be entered; or
(b) order a new trial.
...
(4) Where an appeal is from an acquittal, the court of appeal may
(a) dismiss the appeal; or
(b) allow the appeal, set aside the verdict and
(i) order a new trial, or
(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.
...
(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.
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.
(2) A person
(a) who is acquitted of an indictable offence other than by reason of a verdict of not criminally responsible on account of mental disorder and whose acquittal is set aside by the court of appeal, or
(b) who is tried jointly with a person referred to in paragraph (a) and is convicted and whose conviction is sustained by the court of appeal,
may appeal to the Supreme Court of Canada on a question of law.
693. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3), the Attorney General 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
2. ...
"judgment", when used with reference to the court appealed from, includes any judgment, rule, order, decision, decree, decretal order or sentence thereof....
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.
...
(3) No appeal to the 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.
Rules of the Supreme Court of Canada, SOR/83-74
7. Whenever these Rules contain no provision for exercising any right, any procedure that is specified by the Court, a Judge or the Registrar and that is not inconsistent with these Rules or the Act may be adopted.
29. (1) A respondent who seeks to set aside or vary the whole or any part of the disposition of the judgment appealed from shall apply for leave to cross-appeal....
51. ...
(12) There shall be no re-hearing on an application for leave or a motion.
IV. Analysis
7 This application raises an important jurisdictional question concerning this Court’s authority to entertain appeals from orders entered by a court of appeal under its residual power of s. 686(8) of the Criminal Code . However, at the outset, I have a number of comments concerning the nature of the applicant's motion. More specifically, given that this case represents a rare instance where this Court has chosen to hear argument and write reasons in relation to an application for reconsideration of an order refusing leave to appeal, it would be appropriate to clarify this Court's long-standing policy governing the treatment of such applications.
A. The Application for Reconsideration of an Order Refusing Leave
8 This Court does not normally make a habit of reconsidering its decisions regarding leave to appeal. The ability to grant or deny leave represents the sole means by which this Court is able to exert discretionary control over its docket. In order to ensure that this Court enjoys complete flexibility in allocating its scarce judicial resources towards cases of true public importance, as a sound rule of practice, we generally do not convene oral hearings on applications for leave, nor do we produce written reasons for our grants and denials of leave. The same practical considerations govern our treatment of applications for reconsideration of orders granting or refusing leave. Given the hundreds of leave applications processed by this Court on an annual basis, it is simply not feasible for this Court to regularly second-guess its initial determinations of leave without significantly undermining this Court’s indispensable role as a general court of appeal for the better administration of the laws of Canada. This judicial policy is well enshrined in Rule 51(12) of the Rules of the Supreme Court of Canada, which provides that "[t]here shall be no re-hearing on an application for leave or a motion."
9 However, as with all rules of practice, Rule 51(12) must occasionally yield to circumstance. In exceptional cases, this Court may direct a hearing to reconsider the merits of an initial order refusing leave. For the same policy rationale addressed above, in order to allow this Court the widest degree of flexibility in controlling access to its docket, we have not barred ourselves from revisiting an original decision on leave in the appropriate case. As such, notwithstanding the strict language of Rule 51(12), we have interpreted our residual authority under Rule 7 of the Rules to authorize the Court to reconsider a decision made on an application for leave. See Reekie v. Messervey, [1990] 1 S.C.R. 219, at pp. 222-23. We have also interpreted Rule 7 to permit this Court, to reconsider and quash a previous ruling on leave on its own motion. See Johnson v. The Queen, [1994] 3 S.C.R. viii. But while this Court is not precluded from revisiting its original rulings on leave, for the policy reasons outlined above, circumstances warranting reconsideration will be exceedingly rare. For all intents and purposes, litigants before this Court should consider a grant or denial of leave to appeal as a final and binding statement on whether their case raises a question of law of sufficient public importance to merit review by this nation’s highest court of appeal.
10 In this instance, given the exceptional and unique question of jurisdiction which came to light in the course of this application, we chose to exercise our discretion under Rule 7 to hear the applicant’s motion for reconsideration of our initial order denying leave.
B. Jurisdiction
(1) General Principles
11 The question of jurisdiction arises in this case because the Quebec Court of Appeal allowed the applicant’s appeal and set aside the applicant’s conviction for an indictable offence. Under such circumstances, the Crown is free to appeal the decision of the Court of Appeal, either by leave or as of right based on a dissent, under s. 693(1) of the Criminal Code . But in this instance, it is the accused who is seeking to review the ruling of the Court of Appeal. More specifically, while the applicant was successful in the result he obtained before that court, he seeks to appeal the particular order entered by the Court of Appeal. The applicant was presumably pleased that his original conviction was set aside. However, as I understand his motivations, he is seeking to challenge the stay of proceedings imposed by the court because he feels he has been improperly deprived of the opportunity to obtain a judicial pronouncement of innocence through a directed verdict of acquittal, or alternatively, through the granting of a new trial.
12 However, the Criminal Code does not expressly provide for any avenue of appeal for an accused who has secured a favourable result before the highest court of last resort of a province. An accused’s right to appeal a conviction to the Supreme Court of Canada under the procedural regime for indictable offences is limited to cases where the accused’s conviction was affirmed rather than set aside on appeal. As s. 691(1) of the Code reads:
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 in 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. [Emphasis added.]
13 Furthermore, in the past, this Court has held quite consistently in the context of Crown appeals under s. 693(1) (b), that once the Crown has secured a favourable result before a provincial court of appeal, it may not seek leave to appeal the particular order of the court of appeal entered under s. 686(4)(b) (i.e., the order of a new trial as opposed to the entry of verdict of guilty). In R. v. Barnes, [1991] 1 S.C.R. 449, the accused was convicted, but the trial judge entered a stay of proceedings for entrapment. The Court of Appeal allowed the Crown’s appeal on the finding of entrapment, set aside the stay, and ordered a new trial. Upon the accused’s appeal to this Court, the Crown sought an order dismissing the appeal and entering a conviction. Speaking for the majority of the Court, I held that this Court lacked jurisdiction to vary the Court of Appeal’s order at the prosecution’s request in the absence of a Crown appeal, and more importantly, that the Crown had no underlying right of appeal under s. 693(1) (b). As I wrote (at p. 466):
The Crown is not given by statute the ability to appeal to this Court a decision which allowed its appeal from an acquittal or judicial stay of proceedings, but which gave the Crown less than what had been requested. As a result, there is no statutory provision which would allow the Crown to appeal from the Court of Appeal’s judgment. Absent a statutory right of appeal, there is no right of appeal. [Emphasis in original.]
I further held, at p. 465, that the Crown had no right to seek leave to appeal the order of a new trial by virtue of s. 40(3) of the Supreme Court Act . The principle of Barnes was subsequently affirmed and applied in R. v. MacKenzie, [1993] 1 S.C.R. 212. As La Forest J. elaborated in MacKenzie, at pp. 228-29:
The problem for the Crown in this case is that the Court of Appeal allowed the Crown’s appeal, albeit on a different issue than that which the Crown sought to pursue in this Court. The Crown’s overall success in the court below precluded any further appeal, or cross-appeal, to this Court.
...
As in Barnes, a court of appeal has allowed a Crown appeal, thereby precluding any appeal, or cross-appeal, by the Crown to this Court. The subdivision of a case on appeal into discrete grounds does not assist the Crown in this regard: an unfavourable ruling by a court of appeal on one point of law is overtaken by the Crown’s success on other grounds. [Emphasis in original.]
See, also, R. v. Laba, [1994] 3 S.C.R. 965, at pp. 978-81, where I reiterated that this Court has no jurisdiction under s. 693(1)(b) of the Code or s. 40(1) of the Supreme Court Act to entertain an appeal by the Crown of the particular order or reasons entered by a court of appeal where the prosecution’s underlying appeal was allowed before that court.
14 Along similar lines, we have held that an accused has no right to appeal the order of a court of appeal directing a new trial under s. 686(2) (b) where the accused was ultimately successful in the result before that court. In Meddoui v. The Queen, [1991] 3 S.C.R. ix, the accused sought leave to appeal a ruling of the Alberta Court of Appeal setting aside his original conviction, but which entered a new trial as opposed to a verdict of acquittal under s. 686(2) (b). This Court denied leave for want of jurisdiction, since the text of s. 691(1) limits an accused’s right to appeal in indictable cases to circumstances where the court of appeal below affirmed an accused’s conviction or set aside an acquittal. As well, the text of s. 40(3) precludes an accused from appealing such an order of a new trial through resort to this Court's general jurisdiction under s. 40(1) of the Supreme Court Act . See R. v. Keegstra, [1995] 2 S.C.R. 381, at pp. 399-400.
(2) Submissions
15 On the basis of these authorities, the Attorney General of Quebec argues that the applicant Hinse does not enjoy any right to appeal a discrete order of the Quebec Court of Appeal directing a stay of proceedings after having obtained a favourable result on appeal (i.e., his conviction was set aside). Furthermore, the Attorney General contends that the applicant is precluded from seeking leave pursuant to this Court’s general jurisdiction under s. 40(1) of the Supreme Court Act , since s. 40(3) expressly excludes jurisdiction over the "judgment of any court ...setting aside or affirming a conviction ...of an indictable offence”.
16 The applicant offers two arguments in favour of this Court’s jurisdiction. First, the applicant argues that since he is raising a constitutional objection to the stay of proceedings, this Court has jurisdiction to independently address the constitutional question under s. 40(1) under the “dual proceedings” framework articulated in Laba, supra, at pp. 981-84. The “dual proceedings” approach, it will be recalled, permits the Crown or the accused to independently seek leave to appeal on constitutional questions which arise in the context of a criminal case, even when no appeal would otherwise be available by virtue of the appeal provisions of the Criminal Code and s. 40(3) of the Supreme Court Act . See, e.g., R. v. Finta, [1994] 1 S.C.R. 701, and Keegstra, supra, at pp. 390-96. While the "dual proceedings" analysis was originally conceived as a means of appealing "ruling[s]" by a provincial court of appeal "on the constitutionality of a Criminal Code provision" (Keegstra, at p. 392), the applicant argues that the approach is equally applicable as a means of appealing an act or order of a provincial court of appeal which itself raises a constitutional question. Second, the applicant contends that Rule 29 of the Rules of the Supreme Court of Canada explicitly anticipates an avenue for the appeal of an order of a final court of appeal of a province. While the respondent cross-appeals under Rule 29 must have an independent statutory foundation (Keegstra, at p. 403), the applicant argues that Rule 29 at least contemplates the existence of some statutory appeal mechanism for seeking “to set aside or vary the whole or any part of the disposition of the judgment appealed from”.
17 Since I am of the view that this Court has jurisdiction to hear this appeal on alternative grounds, it is unnecessary for me to dispose of the merits of the applicant’s two arguments for the existence of jurisdiction.
18 On the basis of the foregoing authorities, I am in agreement with the respondent that the applicant has no right to appeal the imposition of the stay under the procedural regime set out in the Criminal Code . But I am not equally convinced that the applicant is prohibited from seeking leave to appeal the stay of proceedings issued by the Court of Appeal under this Court’s general jurisdiction under s. 40(1) of the Supreme Court Act . More specifically, I do not believe that such an appeal is prohibited by the language of either s. 40(3) of Act or s. 674 of the Code. While s. 40(3) clearly precludes an accused or the Crown from seeking leave with regard to an order of a new trial in accordance with the principle of Barnes, MacKenzie and Meddoui, I do not think that the language of s. 40(3) necessarily prohibits an accused or the Crown from appealing an order of a stay of proceedings for abuse of process.
(3) The Nature of an Order for a Stay of Proceedings for Abuse of Process
19 As a preface to my discussion of this Court's jurisdiction, it is necessary to draw a preliminary distinction between the legal foundation of a court of appeal's power to direct a new trial in response to a successful appeal by the accused and a court of appeal's power to direct a stay of proceedings for abuse of process. Needless to say, I am reluctant to engage in an extensive discussion of the origins, nature and limits of a court's power to suspend abusive and vexatious criminal proceedings given the narrow focus of this application. Rather, such a comprehensive examination (if necessary) ought to occur during our consideration of the full merits of this appeal, following proper written and oral argument on the issue. Furthermore, it is unnecessary to delve into any discussion of the relationship between the power of a court to order a stay of proceedings for abuse of process at common law or by statute, and the power of a court to order a stay of proceedings for abuse of process under ss. 7 and 24 of the Charter. See, e.g., R. v. O'Connor (1994), 89 C.C.C. (3d) 109 (B.C.C.A.). Nonetheless, I am required to engage in a brief examination of the source of a court of appeal's power to suspend criminal proceedings whether at common law or by statute, as this legal foundation of the court's power necessarily impacts my discussion of the more immediate question of this Court's jurisdiction under s. 40(1) of the Supreme Court Act .
20 Once a court of appeal has allowed an accused's appeal and set aside his or her conviction, the court is empowered by s. 686(2) of the Code to enter one of two orders: an order for a directed verdict of acquittal, or an order for a new trial. The statutory provision is set out as follows:
686. ...
(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and
(a) direct a judgment or verdict of acquittal to be entered; or
(b) order a new trial.
However, notwithstanding the apparently exhaustive language of this provision, it seems clear from recent decisions of this Court that a court of appeal may also direct a stay of proceedings for abuse of process as an alternative to these two orders under the appropriate circumstances.
21 To begin, it is now well established that a trial court has the power to suspend a course of abusive criminal proceedings which offend the community's sense of fair play. In R. v. Jewitt, [1985] 2 S.C.R. 128, at pp. 136-37, citing R. v. Young (1984), 40 C.R. (3d) 289 (Ont. C.A.), at p. 329, this Court acknowledged that "there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings". We noted in Jewitt, at p. 131, that the origin of this power derives from the inherent authority of a court of common law to control and discipline an abuse of its processes. As I. H. Jacob has argued in the seminal article, "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23, at p. 27:
[T]he essential character of a superior court of law necessarily involves that it should