Sunbeam Corporation (Canada) Limited v. The Queen

Sunbeam Corporation (Canada) Limited v. The Queen
Collection
Supreme Court Judgments
Date
1968-11-01
Report
[1969] SCR 221
Judges
Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe
On appeal from
Ontario
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Sunbeam Corporation (Canada) Limited v. The Queen, [1969] S.C.R. 221
Date: 1968-11-01
Sunbeam Corporation (Canada) Limited (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
1968: April 25, 26; 1968: November 1.
Present: Cartwright C.J. and Fauteux, Martland, Judson, Ritchie, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Appeal to Court of Appeal—Question of law alone—Minimum resale, price specified by manufacturer—Whether acquittal of attempt resale price maintenance subject to appeal—Presumptions—Whether sufficiency of evidence question of fact or law—Combines Investigation Act, R.S.C. 1952, c. 814, ss. 34(2), 41(2)—Criminal Code, 1953-54. (Can.), c. 51, s. 584(1)(a).
The appellant corporation, a manufacturer of electrical appliances, was indicted on four counts of attempting to induce retail dealers to resell its products at prices not less than the minimum prices specified by it, contrary to s. 34(2) (b) of the Combines Investigation Act, R.S.C. 1952, c. 314. The evidence tendered consisted in large measure of documents such as letters addressed to all dealers in certain commodities, price lists distributed to dealers and interdepartmental correspondence. The appellant was convicted on two counts and an order of prohibition was granted. The trial judge acquitted on the other two counts on the ground that there was insufficient evidence of inducement. An appeal by the Crown from the acquittal was allowed by a majority judgment of the Court of Appeal which also varied the order of prohibition. The corporation appealed to this Court.
Held (Judson, Spence and Pigeon JJ. dissenting): The appeal should be allowed in part and the verdict of acquittal restored.
Per Cartwright C.J. and Fauteux, Martland and Ritchie JJ.: The finding by the trial judge that the case presented by the Crown did not establish the appellant’s guilt beyond a reasonable doubt does not involve “a question of law alone” so as to entitle the Attorney General to appeal to the Court of Appeal under the provisions of s. 584(1) (a) of the Criminal Code. Section 41(2) (c) of the Combines Investigation Act provides that documents, such as the letters in this case, which were in the possession of the accused “shall be admitted in evidence without further proof thereof and shall be prima facie evidence” that the accused had knowledge of the documents and their contents and that anything recorded in them as having been done, said or agreed upon by the accused or its agent, was done, said or agreed upon. The trial judge is in no way precluded by that section from considering the weight to be attached to that evidence in considering the issue of the accused’s guilt or innocence. Accepting the view of the Court of Appeal that the evidence here was sufficient to support a conviction, the further question of whether the guilt of the accused should be inferred from that evidence, was one of fact within the province of the judge. It is well settled that the sufficiency of evidence is a question of fact and not a question of law. However wrong the Court of Appeal or this Court may think that the trial judge was in reaching the conclusion that the evidence was not sufficient to satisfy him beyond a reasonable doubt, this error cannot be determined without passing judgment on the reasonableness of the verdict or the sufficiency of the evidence, and these are not matters over which the Court of Appeal has jurisdiction under s. 584(1)(a) of the Code.
Per Judson, Spence and Pigeon JJ., dissenting: The evidence contained in the documents produced at the trial amounted to an admission of an attempt to induce dealers to sell at not less than a specified minimum price. There was no evidence which could give rise to a reasonable doubt that the accused had committed the offence so as to rebut the presumption created by s. 41 of the Combines Investigation Act. Reasonable doubt must be based upon evidence adduced at the trial. There was therefore no course but to convict the accused.
The Court of Appeal had jurisdiction to consider the appeal from the acquittal by the trial judge. It was an error in law for the trial judge to charge himself, as it would appear that he did, that the Crown in order to support the charges had to prove an inducing by agreement, threat or promise. The Crown had only to prove the intent to induce and an overt act toward the accomplishment of that intent. These were proven on prima facie evidence which by lack of contradiction became conclusive evidence. When there is, as in the present case, a statutory presumption to be applied, once the facts necessary to give rise to it are found by the trial judge to be established beyond reasonable doubt, the question whether the inference of guilt should be made is no longer anything but a question of law alone.
Droit criminel—Appel à la Cour d’appel—Question de droit seulement—Prix minimum de revente spécifié par fabricant—Acquittement de l’accusation de tentative de maintenir un prix de revente est-il susceptible d’appel—Présomptions—Suffisance de la preuve est-elle une question de fait ou de droit—Loi relative aux enquêtes sur les coalitions, S.R.C. 1952, c. 814, art 34(2), 41(2)—Code criminel, 1953-54 (Can.), c. 51, art. 584(1)(a). La compagnie appelante, qui fabrique des appareils électriques, a été poursuivie par acte d’accusation sous quatre chefs d’avoir tenté d’engager des marchands au détail à revendre ses produits à un prix non inférieur à un prix minimum spécifié par elle, le tout contrairement à l’art. 34(2) (b) de la Loi relative aux enquêtes sur les coalitions, S.R.C. 1952, c. 314. La preuve offerte consistait en grande partie en documents tels que des lettres adressées à tous les marchands de certains produits, en listes de prix distribuées aux marchands et en correspondance interdépartementale. L’appelante a été déclarée coupable sous deux chefs et un ordre de prohibition a été émis. Le juge au procès a rendu un verdict d’acquittement sur les deux autres chefs pour le motif que la preuve d’incitation était insuffisante. Un appel de la Couronne du jugement d’acquittement a été accueilli par un jugement majoritaire de la Cour d’appel qui a aussi modifié l’ordre de prohibition. La compagnie en a appelé à cette Cour.
Arrêt: L’appel doit être accueilli en partie et le verdict d’acquittement rétabli, les Juges Judson, Spence et Pigeon étant dissidents.
Le Juge en Chef Cartwright et les Juges Fauteux, Martland et Ritchie: La conclusion du juge au procès que la preuve de la Couronne n’établissait pas hors d’un doute raisonnable la culpabilité de l’appelante ne comporte pas une «question de droit seulement» permettant au procureur général d’en appeler à la Cour d’appel en vertu des dispositions de l’art. 584(1) (a) du Code Criminel. L’article 41 (2) (c) de la Loi relative aux enquêtes sur les coalitions stipule que les documents qui, tels que les lettres dans cette cause, étaient en la possession du prévenu «font foi sans autre preuve et attestent prima facie» que le prévenu connaissait les documents et leur contenu et que toute chose inscrite dans ces documents comme ayant été accomplie, dite ou convenue par le prévenu ou son agent, l’a été ainsi que le document le mentionne. Cet article n’empêche pas le juge au procès de considérer le poids qu’il doit attaché à cette preuve lorsqu’il considère la question de la culpabilité du prévenu. Si on accepte le point de vue de la Cour d’appel que la preuve était suffisante pour permettre de conclure à la culpabilité, la question supplémentaire de savoir si on doit tirer de cette preuve une conclusion de culpabilité, est une question de fait de la compétence du juge. D’après une jurisprudence bien établie, la suffisance de la preuve est une question de fait et non pas une question de droit. Même si la Cour d’appel ou cette Cour sont d’avis que le juge au procès a erré en concluant que la preuve n’était pas suffisante pour le convaincre hors d’un doute raisonnable, cette erreur ne peut pas être constatée sans passer un jugement sur le caractère raisonnable du verdict ou la suffisance de la preuve, et ce ne sont pas là des questions sur lesquelles la Cour d’appel a juridiction en vertu de Fart. 584(1) (a) du Code.
Les Juges Judson, Spence et Pigeon, dissidents: La preuve qui se trouve dans les documents produits au procès équivaut à l’aveu d’une tentative d’engager les marchands à vendre à pas moins qu’à un prix minimum spécifié. Il n’y a aucune preuve pouvant faire naître un doute raisonnable que le prévenu a commis l’infraction de manière à ce que la présomption créée par l’art. 41 de la Loi relative aux enquêtes sur les coalitions puisse être réfutée. Le doute raisonnable doit être basé sur la preuve produite au procès. Dans le cas présent, il n’y avait pas d’autre alternative qu’une déclaration de culpabilité.
La Cour d’appel avait juridiction pour déterminer l’appel du verdict d’acquittement. Le juge au procès a erré en droit en se donnant les directives, ainsi qu’il semble l’avoir fait, que la Couronne devait, en vue de supporter les chefs d’accusation, prouver une incitation par entente, menace ou promesse. La Couronne n’avait qu’à prouver l’intention d’engager les marchands et un acte manifeste en vue de l’accomplissement de cette intention. Ces choses ont été prouvées par une preuve prima facie qui, vu l’absence de contradiction, est devenue une preuve concluante. Lorsqu’il s’agit, comme dans le cas présent, de l’application d’une présomption statutaire, et que le juge a conclu que les faits nécessaires pour la faire naître sont établis hors d’un doute raisonnable, la question de savoir si on doit en tirer une conclusion de culpabilité est une question de droit seulement.
APPEL d’un jugement de la Cour d’Appel de l’Ontario[1] accueillant un appel de la Couronne à l’encontre d’un verdict d’acquittement. Appel accueilli en partie, les Juges Judson, Spence et Pigeon étant dissidents.
APPEAL from a judgment of the Court of Appeal for Ontario1 allowing an appeal by the Crown from an acquittal. Appeal allowed in part, Judson, Spence and Pigeon JJ. dissenting.
George D. Finlayson, Q.C. and Burton Tait, for the appellant.
B.J. MacKinnon, Q.C. and R.B. Tuer, for the respondent.
The judgment of Cartwright C.J. and of Fauteux, Martland and Ritchie JJ. was delivered by
RITCHIE J.:—This is an appeal from a judgment of the Court of Appeal for Ontario[2] (Laskin J.A. dissenting) whereby that Court allowed an appeal by the Crown from the acquittal of the appellant on the 3rd and 4th counts of an indictment charging attempted resale price maintenance contrary to s. 34(2) (b) of the Combines Investigation Act, which reads as follows:
34. (2) No dealer shall directly or indirectly by agreement, threat, promise or any other means whatsoever, require or induce or attempt to require or induce any other person to resell an article or commodity
(b) at a price not less than a minimum price specified by the dealer or established by agreement. The indictment contains four counts, each specifying offences contrary to s. 34(2) (b) and the evidence tendered consisted in large measure of documents such as letters addressed to “all dealers” in certain commodities, price lists distributed by the appellant to various dealers, and interdepartmental correspondence between some of the appellant company’s salesmen and the company’s head office.
The circumstances giving rise to these charges were that the appellant had devised and was seeking to implement a plan which it described as its “minimum profitable resale price plan” or “M.R.P.” plan. This plan purported to be conceived in conformity with the provisions of s. 34(5) of the Act which are generally accepted as having been enacted in order to enable dealers to control the practice employed by some retailers of selling a product or products at a loss in order to induce customers to patronize their sales outlet for other products. Section 34(5) reads as follows:
(5) Where, in a prosecution under this section, it is proved that the person charged refused or counselled the refusal to sell or supply an article to any other person, no inference unfavourable to the person charged shall be drawn from such evidence if he satisfies the court that he and any one upon whose report he depended had reasonable cause to believe and did believe
(a) that the other person was making a practice of using articles supplied by the person charged as loss-leaders, that is to say, not for the purpose of making a profit thereon but for purposes of advertising;
(b) that the other person was making a practice of using articles supplied by the person charged not for the purpose of selling such articles at a profit but for the purpose of attracting customers to his store in the hope of selling them other articles;
(c) that the other person was making a practice of engaging in misleading advertising in respect of articles supplied by the person charged; or
(d) that the other person made a practice of not providing the level of servicing that purchasers of such articles might reasonably expect from such other person.
There was ample evidence to show that in putting its “M.R.P.” plan into effect, in purported compliance with this section, the appellant had in fact violated s. 34(2) (b) of the Act in the cities of Toronto and St. Catharines in the Province of Ontario in the manner alleged in the 1st and 2nd counts of the indictment upon which it was convicted, but the 3rd and 4th counts related to attempts- to induce retailers in the City of Vancouver to comply with the plan in the same fashion and, as I have indicated, the learned trial judge did not find that these charges had been proved beyond a reasonable doubt.
The evidence has been extensively reviewed in the judgment rendered by Mr. Justice Schroeder on behalf of the majority of the Court of Appeal and I do not find it necessary to deal with it in any detail because I am satisfied that the point to be determined on this appeal is a very narrow one and turns on the question of whether or not the grounds of appeal alleged before the Court of Appeal involved “a question of law alone” so as to give that court jurisdiction under the provisions of s. 584(1) of the Criminal Code which read as follows:
584. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal
(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone,…
In support of the allegations of attempted inducement contained in the 3rd and 4th counts, the Crown produced correspondence between two of the Company’s salesmen in Vancouver, (Schell and Thompson) and the Company’s head office which described their dealings with the Army and Navy Department Store Limited and ABC Television & Appliances Limited respectively in furtherance of the Company’s “M.R.P.” plan.
As to the allegation respecting the Army and Navy Department Store Limited, (count 3), the learned trial judge, after reviewing the Schell correspondence and pointing out that the Company’s representative at head office had written to say that he had never called on this retailer during the whole time that he was in Vancouver, went on to say:
This would indicate that Army & Navy was not a Sunbeam retailer and may not have received copies of Exhibits 4 and 5. While it would appear that the period of three weeks in which the calls were made by Schell on Army & Navy Stores was within the period set out in the count, such fact is not clear. The evidence as to inducement on this count does not bear that quality of certainty that ought to exist in the case of a criminal charge and it will therefore be dismissed.
In considering the 4th count, the learned trial judge reviewed the evidence contained in the letter from Thompson to his head office concerning ABC Television & Appliances Limited and concluded:
There is here neither sufficient evidence of inducement on the part of the accused nor that the alleged offence took place within the time charged. This charge must therefore be dismissed.
The italics are my own.
As the evidence on the 3rd and 4th charges was almost entirely documentary, the judgment of the majority of the Court of Appeal turns in some measure on the meaning to be attached to the provisions of s. 41(2) of the Act which read as follows:
(2) In a prosecution under Part V,
(a) anything done, said or agreed upon by an agent of a participant, shall prima facie be deemed to have been done, said or agreed upon, as the case may be, with the authority of that participant;
(b) a document written or received by an agent of a participant shall prima facie be deemed to have been written or received, as the case may be, with the authority of that participant; and
(c) a document proved to have been in the possession of a participant or on premises used or occupied by a participant or in the possession of an agent of a participant shall be admitted in evidence without further proof thereof and shall be prima facie evidence
(i) that the participant had knowledge of the document and its contents,
(ii) that anything recorded in or by the document as having been done, said or agreed upon by any participant or by an agent of a participant was done, said or agreed upon as recorded and, where anything is recorded in or by the document as having been done, said or agreed upon by an agent of a participant, that it was done, said or agreed upon with the authority of that participant,
(iii) that the document, where it appears to have been written by any participant or by an agent of a participant, was so written and, where it appears to have been written by an agent of a participant, that it was written with the authority of that participant.
In the course of his reasons for judgment, Mr. Justice Schroeder expressed the view that the Crown’s proof as to the 3rd and 4th counts was “sufficiently clear and cogent to support a conviction on these charges” (the italics are my own) and that as no evidence was called on behalf of the defence, the trial judge was not justified as a matter of law in acquitting the accused. In reaching this conclusion, Mr. Justice Schroeder cited, amongst other cases, the decision of this Court in Girvin v. The King[3] where Sir Charles Fitzpatrick C.J.C., speaking for the Court at page 169, said:
I have always understood the rule to be that the Crown in a criminal case is not required to do more than produce evidence which if unanswered and believed is sufficient to raise a prima facie case upon which the jury might be justified in finding a verdict.
I do not think that any authority is needed for the proposition that, when the Crown has proved a prima facie case and no evidence is given on behalf of the accused, the jury may convict, but I know of no authority to the effect that the trier of fact is required to convict under such circumstances. The Girvin case was an appeal from the verdict of a jury which had found that the Crown’s evidence established the accused’s guilt beyond a reasonable doubt, and it was held that there was sufficient evidence to support that verdict. In the present case the learned trial judge found that the case presented by the Crown did not establish the appellant’s guilt beyond a reasonable doubt, and as I have indicated, the main question raised by this appeal is whether that finding involved a question of law alone so as to entitle the Attorney General to appeal to the Court of Appeal under the provisions of s. 585(1) (a) of the Criminal Code, or whether it was a finding of fact or one of mixed fact and law.
In dealing with the evidence contained in the letters from the appellant’s salesmen in which reference was made to their conversations with the retailers named in counts 3 and 4 of the indictment, Mr. Justice Schroeder, applying the provisions of s. 41(2), found that the statements so made by the salesmen “constitute direct proof by way of admissions of the attempts charged against the respondent in both counts” and he went on to say:
That evidence is not only sufficient to get the case past the judge to the jury, but there being no issue as to the weight or credit to be given to it, it is sufficient to counterbalance the general presumption of innocence and require affirmative action by the court in convicting the accused where, as here, it is not countered or controlled by evidence tending to contradict it or render it improbable, or to prove facts inconsistent with it.
The italics are my own.
With the greatest respect I cannot agree with Mr. Justice Schroeder that the provisions of s. 41(2) in any way preclude a judge or jury from considering the weight to be attached to the evidence contained in the letters in question in determining the issue of whether the Crown has proved its case beyond a reasonable doubt.
Section 4(2)(c) simply provides that documents, such as these letters, which were in the possession of the accused “shall be admitted in evidence without further proof thereof and shall be prima facie evidence” that the accused had knowledge of the documents and their contents and that anything recorded in them as having been done, said or agreed upon by the accused or its agent, was done, said or agreed upon. This does not mean that the trial judge, having accepted the letters as prima facie evidence of their contents, is precluded from assessing the weight to be attached to that evidence in considering the issue of the accused’s guilt or innocence.
Mr. Justice Schroeder, however, went on to say:
Looking at the correspondence between these two salesmen and the Assistant General Sales Manager of the respondent in the light of all the evidence as to the formulation of its carefully conceived plan and the various steps taken to put it into execution across the country, there is no ground upon which their statements—in effect admissions—should be disbelieved. In simply basing his dismissal of the charge against the accused on counts 3 and 4 on the doctrine of reasonable doubt, the learned Judge failed to direct his mind to the fact that the Crown had raised a prima facie case against the accused which clearly afforded evidence of facts from which the accused might have cleared itself, but which it did not even attempt to answer or explain. In the absence of such explanation or contradiction the Crown’s proof was confirmed and became sufficiently clear and cogent to support a conviction. The learned Judge’s failure to direct himself upon this well-settled principle was nondirection amounting to misdirection, and his consequent non-observance of it constituted an error in law which afforded the Crown a right of appeal against the acquittal.
The italics are my own. It appears to me that Mr. Justice Schroeder’s reasoning in the last quoted paragraph is predicated on his finding that the Crown’s proof was “sufficiently clear and cogent to support a conviction”. This may well be so and if a judge or jury had convicted the accused on the 3rd and 4th counts on the evidence tendered by the Crown, I doubt very much whether such a conviction could have been set aside, but we are not dealing with an appeal from a conviction; here the accused was acquitted by the trial judge and the appeal to the Court of Appeal for Ontario was an appeal from that acquittal. While the reasoning employed by Mr. Justice Schroeder would be sound in the case of an appeal from a conviction it is not, in my respectful opinion, applicable to such an appeal as this.
In considering whether or not this appeal “involves a question of law alone” I think that reference may usefully be had to what was said by Rinfret J., speaking on behalf of this Court in Fraser v. The King[4], where he was considering the submission made on behalf of the accused that circumstantial evidence adduced by the Crown was equally consistent with innocence as with guilt, and he had occasion to say of that argument, at p. 301:
To a certain extent, this would assimilate verdicts based on circumstantial evidence ‘as consistent with the innocence as with the guilt of the accused’ to verdicts where it is claimed that there is no evidence at all to support them, the view being that the court of appeal is empowered to set aside those verdicts on the ground that they are unsatisfactory, whether on account of a total lack of evidence or for want of sufficient legal evidence to support them.
Let it be granted, however, that such a question should be deemed a question of law, or of mixed law and fact, when once it is established that the evidence is of such a character that the inference of guilt of the accused might, and could, legally and properly be drawn therefrom, the further question whether guilt ought to be inferred in the premises is one of fact within the province of the jury…
I think that these observations have a direct bearing on the present case and that, accepting the view of Mr. Justice Schroeder that the evidence here was sufficient to support a conviction, the further question of whether the guilt of the accused should be inferred from that evidence, was one of fact within the province of the judge. The law applicable to the meaning to be placed on s. 584(1) (a) under the present circumstances is stated in the judgment of this Court delivered by Taschereau J. in Rose v. The Queen[5], where he said at p. 443:
The trial judge sitting without a jury was fulfilling a dual capacity. He had, therefore, to discharge the duties attached to the function of a judge and also the duty of a jury. As a judge he had to direct himself as to whether any facts had been established by evidence from which criminal negligence may be reasonably inferred. As a jury he had to say whether from these facts submitted, criminal negligence ought to be inferred. Metropolitan Railway Company v. Jackson, 1877 3 A.C. 193 at 197, The King v. Morabilo, 1949 S.C.R. 172 at 174. I think that the trial judge directed himself properly and that when he decided on the facts submitted to him that criminal negligence ought not to be injerred, he was fulfilling the functions of a jury on a question of fact.
The italics are in the original judgment.
In the quotations which I have taken from the judgment of the trial judge and of Mr. Justice Schroeder, I have italicized the words “sufficient” and “sufficiently” wherever they occur, as it appears to me that the fundamental difference between the trial judge and the majority of the Court of Appeal was that the Court of Appeal was of opinion that the evidence on the 3rd and 4th counts was sufficient to require a verdict of guilty, whereas the trial judge did not consider it to be sufficient to support such a verdict. It is well-settled that the sufficiency of evidence is a question of fact and not a question of law and the law in this regard is well stated by Trenholme J., speaking on behalf of the Quebec Court of King’s Bench in Rex v. White[6], where he said at p. 75:
We hold White had gone through his trial legally and the question of sufficiency of the evidence to convict is a question of fact for the judgment of the magistrate. A question of no evidence is a question of law. But it is a question of sufficiency of evidence here; it is not a question of law. Sufficiency of evidence, is always a matter for the jury to decide, or the Judge in place of the jury, and the Judge is entitled to say there is no evidence to go to the jury, but as to whether the evidence brought before the jury-supports the condemnation or acquittal is for the jury alone, and is a question of fact. Therefore, the question of the sufficiency of the evidence in the case is a question of fact and not a question of law. The reasons for judgment of Mr. Justice St. Jacques in Regina v. Boisjoly[7] are to the same effect. He there said, at page 23:
Alors, le jury a rendu son verdict et a déclaré le prévenu non coupable, et cela a été dit par chacun des jurés. Il y a donc eu un verdict et c’est, en effet, ce verdict que la Couronne demande à la Cour d’Appel de mettre de côté.
Comment cette Cour peut-elle le faire, à moins de prendre connaissance de toute la preuve versée au dossier, afin de déclarer, contrairement à l’opinion du juge et au verdict du jury, qu’il y avait suffisamment de preuve pour rendre un autre verdict que celui qui a été prononcé? Est-ce là un appel en droit uniquement? Assurément non, puisque la Cour aurait à étudier les faits prouvés pour déduire une autre conclusion que celle à laquelle le jury en est arrivé.
These cases were both followed in the Quebec Court of Queen’s Bench in 1961 in the case of Regina v. Ferland[8], and it will be found that the courts of the other Provinces have been uniform in their adoption of the views above expressed. See for example, Rex v. Gross[9], per Roach J.A., page 19; R. v. J.[10] (Alberta); The King v. Toubret and Davis[11] (N.S.); Rex v. F.W. Woolworth Company[12] (B.C.), in which latter case the respondent company was charged with discriminating against its employees contrary to s. 4(2) (a) of the Industrial Conciliation Arbitration Act, 1947 (B.C.), c. 44, and Chief Justice Sloan, speaking on behalf of the Court of Appeal for British Columbia, said, at page 176:
I am unable to see how we can say that the learned judge below erred in finding that the Crown had failed to prove the offence charged, unless we ourselves weigh the evidence and reach our own and differing conclusions of fact thereon.
This, however, as a Crown appeal, is limited to questions of law alone. It follows therefore that in my opinion we have no jurisdiction to entertain it.
In the case of The Queen v. Warner[13], the Court of Appeal of Alberta had allowed an appeal from a conviction of murder on the ground that the evidence at trial was not sufficient to support it and this Court decided that that ground did not raise a question of law so as to give it jurisdiction to hear a further appeal. In the course of the reasons for judgment which he rendered on behalf of himself, Taschereau and Abbott J., Chief Justice Kerwin said, at page 147:
In my opinion there is no jurisdiction in the Court to hear this appeal. The first two sentences of the reasons for judgment of the Chief Justice of Alberta, speaking on behalf of the Appellate Division, are as follows:
I am strongly of opinion that the verdict of murder cannot be supported by the evidence. But I feel I must go further, and set out other reasons for setting aside the conviction.
I read the first sentence as meaning that the Chief Justice considered that the evidence was not sufficient to support a conviction,—which is a question of fact.
In the same case, the present Chief Justice, with whom Taschereau and Abbott J. agreed, said, at page 149:
I do not find it necessary to consider the several errors of law alleged by the appellant to have been made by the Appellate Division as I think it is clear that the Appellate Division allowed the appeal on two main grounds:
(1) that, in the opinion of the Appellate Division, the verdict of guilty of murder should be set aside on the ground that it could not be supported by the evidence, and
(2) that there had been errors in law in the charge of the learned trial judge.
So far as the judgment of the Appellate Division is based on the first ground mentioned, this Court is powerless to interfere with it. The question whether the Appellate Division was right in proceeding on this ground is not a question of law in the strict sense. It is a question of fact or, at the best from the point of view of the appellant, a mixed question of fact and law.
The effect of these observations, which represent the view of the majority of the Court, is that the question of whether or not the evidence was sufficient to support a conviction is a question of fact.
Mr. Justice Schroeder, however, while recognizing that there was nothing in the reasons for judgment of the learned trial judge to “disclose ex facie what may be denoted as a positive error of law…” went on to say:
It is not essential that a misconception of law should appear on the face of the judgment or the reasons therefor if the determination upon the evidence was such that, in the opinion of a reviewing court, no person acting judicially and properly instructed as to the relevant principles of law could have reached. If that is readily apparent, as I believe it is here, then this Court is entitled to assume that some misconception of law is responsible for the decision. It appears to me that Mr. Justice Schroeder has cited an excerpt from the reasons delivered on behalf of this Court by Anglin C.J., in Belyea and Weinraub v. The King[14] as some authority in support of this proposition. That was a case in which the trial judge had acquitted the appellants on charges of offences against the Combines Investigation Act, R.S.C. 1927, c. 26, and of conspiracy contrary to the provisions of s. 498 of the Criminal Code and, holding that the error of the trial judge raised a question of law, this Court affirmed the judgment of the Appellate Division of the Supreme Court of Ontario which had reversed the acquittal on the following grounds:
…the Appellate Division…s of the opinion that the learned trial judge had misdirected himself, in that he held that, although it was proven, if not admitted, that they (the appellants) ‘took an active part in the original scheme,—the conspiracy which formed the basis for the prosecution,…use (they) were not proved to have taken part in subsequent overt acts,’ they should be acquitted,…
In my view that case is distinguishable from the case at bar because the trial judge had there made a clear finding of fact against the accused, (i.e., that they had participated in the formation of the combine or agreement which was charged as a conspiracy) from which it followed as a matter of law that they were guilty of the offence with which they were charged. The trial judge did not appear to appreciate the fact that the agreement was the essence of the offence and seems to have thought that in order to find the accused guilty there had to be evidence from which he could conclude beyond a reasonable doubt that they had participated in overt acts done in furtherance of the agreement. This was a manifest error in law which raised a question over which the Court of Appeal had jurisdiction. I cannot see that any such question as was there decided arises in the present case because here there was no finding of fact against the accused in respect of the 3rd and 4th counts which, as a matter of law, required the trial judge to convict.
In the present case the trial judge accepted the evidence as contained in the letters above referred to and thus gave full effect to s. 41(2) of the Combines Investigation Act, but he concluded that this evidence was not sufficient to satisfy him beyond a reasonable doubt that the accused were guilty on the 3rd and 4th counts. However wrong the Court of Appeal or this Court may think that he was in reaching this conclusion, I am of opinion, with all respect for those who hold a different view, that this error cannot be determined without passing judgment on the reasonableness of the verdict or the sufficiency of the evidence, and in my view these are not matters over which the Court of Appeal has jurisdiction under s. 584(1) (a) of the Criminal Code.
Mr. Justice Schroeder, however, further relies upon the case of Edwards (Inspector of Taxes) v. Bairstow[15] and he makes particular reference to the reasons for judgment of Lord Radcliffe in that case. That was an appeal from a decision of the Commissioners for the General Purpose of the Income Tax Act on a case stated by them. The facts were not in dispute and the sole question was whether a taxpayer’s profits arose out of an “adventure or concern in the nature of trade” within the meaning of s. 237 of the English Income Tax Act, 1918.
In the course of his reasons for judgment, Lord Radcliffe said, at page 33:
My Lords, I think that it is a question of law what meaning is to be given to the words of the Income Tax Act ‘trade, manufacture, adventure or concern in the nature of trade’ and for that matter what constitute ‘profits or gains’ arising from it. Here we have a statutory phrase involving a charge of tax, and it is for the courts to interpret its meaning, having regard to the context in which it occurs and to the principles which they bring to bear upon the meaning of income.
His Lordship then observed that:
…the law does not supply a precise definition of the word ‘trade’:…
and went on to say:
In effect it lays down the limits within which it would be permissible to say that a ‘trade’ as interpreted by section 237 of the Act does or does not exist.
But the field so marked out is a wide one and there are many combinations of circumstances in which it could not be said to be wrong to arrive at a conclusion one way or the other. If the facts of any particular case are fairly capable of being so described, it seems to me that it necessarily follows that the determination of the Commissioners, Special or General, to the effect that a trade does or does not exist is not ‘erroneous in point of law’; and, if a determination cannot be shown to be erroneous in point of law, the statute does not admit of its being upset by the court of appeal. I except the occasions when the commissioners, although dealing with a set of facts which would warrant a decision either way, show by some reason they give or statement they make in the body of the case that they have misunderstood the law in some relevant particular.
All these cases in which the facts warrant a determination either way can be described as questions of degree and therefore as questions of fact.
Lord Radcliffe was, however, of the opinion that the agreed facts in the Bairstow case were consistent only with the conclusion that the profit there in question “was the profit of an adventure in the nature of trade”. In concluding his judgment, Lord Radcliffe made the following general observation concerning appeals from income tax commissioners at page 38:
As I see it, the reason why the courts do not interfere with commissioners’ findings or determinations when they really do involve nothing but questions of fact is not any supposed advantage in the commissioners of greater experience in matters of business or any other matters. The reason is simply that by the system that has been set up the commissioners are the first tribunal to try an appeal, and in the interests of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law. The court is not a second opinion, where there is reasonable ground for the first. But there is no reason to make a mystery about the subjects that commissioners deal with or to invite the courts to impose any exceptional restraints upon themselves because they are dealing with cases that arise out of facts found by commissioners. Their duty is no more than to examine those facts with a decent respect for the tribunal appealed from and if they think that the only reasonable conclusion on the facts found is inconsistent with the determination come to, to say so without more ado.
I am satisfied, after having read the reasons for judgment of Lord Radcliffe, that the Bairstow case was one in which the court was required to decide whether the facts found by the Commissioners were such as to bring the taxpa