The Queen v. Zelensky

The Queen v. Zelensky
Collection
Supreme Court Judgments
Date
1978-05-01
Report
[1978] 2 SCR 940
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Manitoba
Subjects
Constitutional law
Decision Content
SUPREME COURT OF CANADA
The Queen v. Zelensky, [1978] 2 S.C.R. 940
Date: 1978-05-01
Her Majesty The Queen Appellant;
and
Anne Zelensky Respondent;
and
The T. Eaton Company Limited, The Attorney General of Canada, The Attorney General of Quebec and The Attorney General of Alberta Interveners.
1977: November 29; 1978: May 1.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Constitutional law — Criminal law — Theft — Plea of guilty — Sentence of imprisonment and probation — Order for compensation and for restitution — Require­ments not met for compensation but for restitution only — Validity of s. 653 of Criminal Code, R.S.C. 1970, c. C-34.
The accused, who was an adjuster in the catalogue sales operation of the T. Eaton Co. Ltd., and her husband were charged with defrauding Eaton to a value of $18,000 more or less and a day later some relatives of the accused were charged with receiving stolen goods. Still later, a charge of fraud was laid against another relative of the accused. Subsequently, a new charge was laid against the accused, her husband, her daughter, her son-in-law and her sister of theft of money, to the amount of $18,000 more or less and merchandise to the amount of $7,000 more or less, the property of Eaton. As a result of plea bargaining, the accused and her husband elected to be tried before a provincial court judge. They pleaded guilty to the charge of theft of money to the amount of $18,000 "more or less" and merchandise to the amount of $7,000 "more or less". All the other charges were stayed.
Eaton instituted civil proceedings, for the recovery of money and merchandise stolen from it by the offenders, a day before the criminal charges were brought against them. It continued with the civil proceedings, taking steps in connection therewith while the criminal pro­ceedings were in progress, and even after the offenders had pleaded guilty to theft. Eaton then decided to seek a compensation order under s. 653 of the Criminal Code and a dispute arose with respect to the amount of loss, particularly in relation to the money that was allegedly stolen. So far as appeared, the civil proceedings were maintained while the application for a compensation order was pursued.
The trial judge gave a suspended sentence to the accused's husband but he meted out to her a sentence of imprisonment for two years less a day. In addition, the accused was sentenced to one year of supervised proba­tion. At the same time, the trial judge made an order for compensation under s. 653(1) in the amount of $18,000, and directed restitution of recovered goods under s. 655.
On appeal to the Court of Appeal it was first unani­mously decided that the incarceration and probation sentence should be affirmed. Later, the majority expressed the view that s. 653 was ultra vires, the minority that it was valid. However, the majority also found, contrary to the conclusion of the dissenting judges, that in any case the orders of compensation and of restitution had been improperly made. An appeal by the Crown, with leave of this Court, followed:
Held: The appeal should be allowed in part; the order of the Court of Appeal is affirmed in so far as it set aside the order for compensation under s. 653 of the Code but is varied so as to reinstate that part of the composite order of the trial judge directing restitution. There should be a declaration that s. 653 is valid, Pigeon, Beetz and Pratte JJ. dissenting as to s. 653(1) and (2).
Per Laskin C.J. and Martland, Ritchie, Spence, Dickson and Estey JJ.: The validity of s. 655 was not impeached before the Court of Appeal or before this Court, and the order for restitution must stand as a severable order validly made under s. 655.
Section 653 is valid as part of the sentencing process. Although a good deal was made by those attacking the validity of the section of the provision therein for filing and entering a compensation order as a judgment of the provincial superior court, this is simply administrative machinery which cannot control the issue of validity.
In the reasons of the majority of the Court of Appeal, Matas J.A. adverts to various considerations affecting the applicability of s. 653 and draws an adverse constitu­tional conclusion when comparisons are drawn between the procedures in a civil action for damages and the relative position of the accused as a defendant in such an action and his position as a convicted person against whom an order is sought under s. 653. In assessing constitutionality there is merit in such an approach, but relative advantages in applicable procedures cannot be determinative of validity where the primary consider­ation is a more functional one, with regard being had to the object of the impugned legislation and its connection with other admittedly valid aspects of the criminal process.
An order for compensation should only be made with restraint and with caution, and in the circumstances of the present case there should be no interference with that part of the judgment of the majority of the Court of Appeal holding that the order for compensation should not have been made.
It is important to contain s. 653 within its valid character as part of the sentencing process and thus avoid the allegation of intrusion into provincial legisla­tive authority in relation to property and civil rights in the province. Although the Courts have recognized the wide scope of the federal power in relation to criminal law and criminal procedure, and although there is now a broad range of powers in a sentencing court to deal with offenders, it nonetheless remains true that the criminal law cannot be used to disguise an encroachment upon provincial legislative authority. Any serious contest on legal or factual issues, or on whether the person alleging himself to be aggrieved is so in fact, should signal a denial of recourse to an order under s. 653.
With reference to the question of appeal from an order for compensation, the filing of such an order in the provincial superior court does not put in motion any civil proceedings other than those relating to enforcement. A compensation order, being included in the definition of "sentence" under s. 601 of the Criminal Code, is appealable as provided by that Code, and the application of the principle of Pringle v. Fraser, [1972j S.C.R. 821, excludes any suggestion that civil appeal proceedings are open.
Section 616 of the Criminal Code deals with the powers of a provincial court of appeal in respect of an order for compensation and provides for suspension of the operation of the order during the time it is appealable and until appeal proceedings, if taken, are conclud­ed. Section 616(2) empowers the provincial court of appeal to annul or vary a compensation order, whether or not the conviction is quashed. It does not itself give a right of appeal. It appears, therefore, that only the accused has a right of appeal against a compensation order, a right given by s. 603(1)(b), and not the person in whose favour the compensation order is made. This is consistent with the character of such an order as part of sentence. Re Torek and The Queen (1974), 15 C.C.C. (2d) 296; Turcotte c. Gagnon, [1974] R.P. 309, applied; City of Toronto v. The King, [1932] A.C. 98; In re Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919, [1922] 1 A.C. 191; Attorney-General of Ontario v. Hamilton Street Railway, [1903] A.C. 524; Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, aff'd [1951] A.C. 179; R. v. Scherstabitoff, [1963] 2 C.C.C. 208; Industrial Acceptance Corporation Ltd. v. The Queen, [1953] 2 S.C.R. 273; Goodyear Tire & Rubber Co. of Canada Ltd. v. The Queen, [1956] S.C.R. 303; Sunbeam Corporation (Canada) Ltd. v. The Queen, [1969] S.C.R. 221; R. v. Groves (1977), 39 C.R.N.S. 366; Papp v. Papp, [1970] 1 O.R. 331; R. v. Cohen and Miller, [1922] 3 W.W.R. 1126; Attorney-General for Ontario v. Reciprocal Insurers, [1924] A.C. 328, referred to.
Per Pigeon, Beetz and Pratte JJ., dissenting in part: The accused admitted only having stolen some merchan­dise and a substantial sum of money the amount of which she was unwilling to admit. The trial judge was quite correct in accepting the submission by counsel for the Crown that this attitude of the accused was proof of her continuing dishonesty, in other words, that she was unrepentant. However, no matter how much this made accused's case unsympathetic and also reflected against counsel who co-operated in such tactics, it could not constitute a proper foundation for a compensation order. The making of a compensation order could not be justified without clear evidence of a definite amount by admission or otherwise.
With respect to the order for restitution, the situation was somewhat different. There were no civil proceedings pending, all the merchandise that the accused was charged with having stolen was seized by the police and nothing was said which might indicate that the plea of guilty to the charge of theft of merchandise to the amount of $7,000 more or less did not cover each of the articles seized. Also, the order of restitution was made under a section of the Code, the constitutionality of which was not disputed. The making of such order is not discretionary as the order for compensation, but is man­datory in the case specified in s. 655(1). The order of restitution should, therefore, be restored.
As to the constitutional validity of s. 653, the orders that the section purports to authorize are clearly intended to be in substitution for the civil remedy and not in addition to it. In the latter case, the section would be valid as providing for punishment. The question that arises is whether Parliament's jurisdiction over "The Criminal Law, ... including the Procedure in Criminal Matters" extends to procedure in civil matters arising out of the same set of facts that constitute a criminal offence. This question must be answered in the negative. The authority to define crimes does not include the authority to legislate concerning the purely civil conse­quences of the facts that constitute a crime. Similarly the authority to legislate respecting procedure in crimi­nal matters does not include the authority to legislate on procedure in civil matters even when the same set of facts are involved in the criminal offence as in the civil claim. In this respect one should note that s. 10 of the Criminal Code reads: "No civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence." It also should be noted that a finding of guilt under the Criminal Code has been held not to be conclusive from a civil point of view: La Foncière v. Perras, [1943] S.C.R. 165.
This, however, does not decide the issue of constitu­tionality in the present case because an important aspect of the constitutional division of legislative authority remains to be considered namely, the extent of the federal ancillary power. Subsections (1) and (2) of s. 653 cannot be considered as necessarily incidental to the full exercise by Parliament of its authority over criminal law and criminal procedure. A compensation order is nothing but a civil judgment.
The provisions of s. 653(3) are of a different charac­ter than subss. (1) and (2) under which the compensa­tion order becomes a civil judgment. Subsection (3) has its origin in a different section of the previous Criminal Code namely, s. 1049, traceable to the old Larceny Act. In so far as this deals with moneys found in the posses­sion of the accused at the time of his arrest, it is properly incidental to criminal procedure. The arrest of a person suspected of crime, a search of his person and the detention of money found in his possession are all part of the normal criminal process. The proper disposi­tion of money thus seized is therefore a necessary part of the criminal procedure, just as the adjudication on the guilt or innocence of the accused.
It followed that s. 653(1) and (2) should be held to be ultra vires save to the extent contemplated in s. 653(3).
Adgey v. The Queen, [1975] 2 S.C.R. 426; Lake v. The Queen, [1969] S.C.R. 49; Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396; Switzman v. Elbling, [1957] S.C.R. 285; Ross v. Regis­trar of Motor Vehicles, [1975] 1 S.C.R. 5; City of Toronto v. The King, [1932] A.C. 98; Basted v. Grafton, [1948] 1 W.W.R. 614; Attorney General for Canada v. Attorney General for British Columbia, [1930] A.C. 111; Attorney General for Quebec v. Attor­ney General for Canada, [1945] S.C.R. 600; R. v. Scherstabitoff, [1963] 2 C.C.C. 208; Toronto Corpora­tion v. York Corporation, [1938] A.C. 415; Re State of Nebraska and Morris (1971), 2 C.C.C. (2d) 282, referred to.
APPEAL from a judgment of the Court of Appeal for Manitoba[1], allowing an appeal from a judgment of Collerman P.C.J. Appeal allowed in part, Pigeon, Beetz and Pratte JJ. dissenting in part.
J. D. Dangerfield and A. Jacksteit, for the appellant.
D. A. Yanofsky, Q.C., for the respondent.
S. Froomkin, Q.C., and S. R. Fainstein, for the Attorney General of Canada.
M. Pothier and Y. Berthiaume, for the Attorney General of Quebec.
W. M. Henkel, Q.C., for the Attorney General of Alberta.
M. L. Ostfield and B. A. Crane, for T. Eaton Co. Ltd.
The judgment of Laskin C.J. and Martland, Ritchie, Spence, Dickson and Estey JJ. was deliv­ered by
THE CHIEF JUSTICE—This appeal, brought here by leave to this Court, challenges the majority judgment of the Manitoba Court of Appeal (Matas J.A., Hall and O'Sullivan JJ.A. concurring, Monnin J.A., Guy J.A. concurring, dissent­ing) which invalidated s. 653 of the Criminal Code and held also, and in any event, that Provincial Court Judge Collerman erred in law in making an order for compensation under that provision and in directing restitution of stolen property under s. 655. The order for compensation and for restitu­tion was a composite order made at the time the respondent Anne Zelensky was sentenced to imprisonment and to a term of probation after pleading guilty to theft and was in pursuance of an application for such relief made by T. Eaton Com­pany Limited, the victim of the theft.
The validity of s. 655 was not impeached before the Manitoba Court of Appeal or before this Court, and there was nothing in the reasons of Matas J.A. which pertained particularly to the direction for restitution of the stolen goods by way of contesting that part of the trial judge's compos­ite order. It appears to have been swept out by reason of its association with the order for com­pensation. Counsel .for the respondent Anne Zelensky did not complain here of the order for restitution and, in my view, it must stand as a severable order validly made under s. 655, whatever be the disposition as to the order for compen­sation under s. 653 and as to the validity of this last-mentioned provision.
Sections 653 and 655 read as follows:
653. (1) A court that convicts an accused of an indictable offence may, upon the application of a person aggrieved, at the time sentence is imposed, order the accused to pay to that person an amount by way of satisfaction or compensation for loss or damage to prop­erty suffered by the applicant as a result of the commis­sion of the offence of which the accused is convicted.
(2) Where an amount that is ordered to be paid under subsection (I) is not paid forthwith the applicant may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the accused in the same manner as if it were a judgment rendered against the accused in that court in civil proceedings.
(3) All or any part of an amount that is ordered to be paid under subsection (1) may, if the court making the order is satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the accused and the court so directs, be taken out of moneys found in the possession of the accused at the time of his arrest.
655. (1) Where an accused is convicted of an indictable offence the court shall order that any property obtained by the commission of the offence shall be restored to the person entitled to it, if at the time of the trial the property is before the court or has been detained so that it can be immediately restored to that person under the order.
(2) Where an accused is tried for an indictable offence but is not convicted, and the court finds that an indictable offence has been committed, the court may order that any property obtained by the commission of the offence shall be restored to the person entitled to it, if at the time of the trial the property is before the court or has been detained, so that it can be immediately restored to that person under the order.
(3) An order shall not be made under this section in respect of
(a) property to which an innocent purchaser for value has acquired lawful title,
(b) a valuable security that has been paid or discharged in good faith by a person who was liable to pay or discharge it,
(c) a negotiable instrument that has, in good faith, been taken or received by transfer or delivery for valuable consideration by a person who had no notice and no reasonable cause to suspect that an indictable offence had been committed, or
(d) property in respect of which there is a dispute as to ownership or right of possession by claimants other than the accused.
(4) An order made under this section shall be execu­ted by the peace officers by whom the process of the court is ordinarily executed.
(5) This section does not apply to proceedings against a trustee, banker, merchant, attorney, factor, broker or other agent entrusted with the possession of goods or documents of title to goods, for an offence under section 290, 291, 292 or 296.
I think it desirable to set out s. 654 as well because it stands as a reinforcement and adjunct to the policy reflected in s. 653. It is in these words:
654. (1) Where an accused is convicted of an indictable offence and any property obtained as a result of the commission of the offence has been sold to an innocent purchaser, the court may, upon the application of the purchaser after restitution of the property to its owner, order the accused to pay to the purchaser an amount not exceeding the amount paid by the purchaser for the property.
(2) Where an amount that is ordered to be paid under subsection (1) is not paid forthwith the applicant may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the accused in the same manner as if it were a judgment rendered against the accused in the court in civil proceedings.
(3) All or any part of an amount that is ordered to be paid under subsection (1) may, if the court making the order is satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the accused and the court so directs, be taken out of moneys found in the possession of the accused at the time of his arrest.
Sections 653, 654 and 655 have been in the Criminal Code in similar but not exact formula­tion since the Code's enactment in 1892: see ss. 836, 837, 838. The original of the present s. 653, namely, s. 836, provided for compensation not exceeding one thousand dollars upon the applica­tion of the person aggrieved, the amount to be deemed a judgment debt owing by the accused and enforceable in the same way as an order for costs under s. 832, which provided, inter alia, for satis­faction in whole or in part out of money belonging to and taken from the accused on his arrest.
The provision for compensation was not then tied expressly to the sentencing process as is now the case under s. 653. Under the original of the present s. 654, namely, s. 837, where property involved in the offence was sold to a bona fide purchaser and restored to the true owner, the purchaser could apply for compensation out of money of the accused taken from him on his apprehension. The present s. 654 clearly goes far­ther in providing for an order for a money payment, subject to the Court being able to direct that all or part of the compensation to the purchaser be paid out of money in the possession of the accused at the time of his arrest and which is indisputably his. Neither in ss. 836 or 837 was there any such express provision as now exists in ss. 653 and 654 for filing the order for compensation, with effect as a judgment enforceable as if it was a judgment in civil proceedings. The principle of restitution under the present s. 655 is carried forward from the original s. 838, but the present provision is more explicit (if, indeed, the original provision covers the point at all) that an order will not be made if there is a dispute as to ownership of the property involved by claimants other than the accused. No such issue arose in the present case and, as I have already said, the order for restitution must stand.
It appears to me that ss. 653, 654 and 655, historically and currently, reflect a scheme of criminal law administration under which property, taken or destroyed or damaged in the commission of a crime, is brought into account following the disposition of culpability, and may be ordered by the criminal court to be returned to the victimized owner if it is under the control of the court and its ownership is not in dispute or that reparation be made by the offender, either in whole or in part out of money found in his possession when arrested if it is indisputably his and otherwise under an order for compensation, where the property has been destroyed or damaged.
I think s. 655(2) gives particular emphasis to the scheme in providing for an order of restitution, even if the accused has been acquitted, where the property involved in the commission of an offence is under the control of the court. The integrity of the scheme is seen in s. 654, already mentioned, which enables the criminal court to tidy up a situation where stolen property has been sold to a bona fide purchaser and it is available for restora­tion to the victimized owner, the court being authorized upon such restitution to inflict upon the offender a liability to pay to the innocent purchas­er what he gave for the goods.
I regard s. 654 as of a piece with s. 388(2)(3) which deals with wilful damage to property where the damage does not exceed fifty dollars. The summary conviction court is authorized to make an award of compensation, not exceeding that amount, to the aggrieved person in addition to any punishment imposed, payment being enforced by a term of imprisonment not exceeding two months. The pecuniary sanction under both s. 388 and s. 654 may be regarded as the imposition of restitutionary fines, with a direction as to the destination of the money, a direction which it is open to Parliament to give: see Toronto v. The King[2]. It is true that in that case the challenged legislation of Parliament, a provision of the Criminal Code, provided for certain fines to be paid to the municipal or local authority but I see no departure from principle and from lawful constitutional authority if they are directed to a victim of a crime or to someone, e.g. the bona fide purchaser under s. 654 who has also been victimized as a result thereof. Of course, the characterization of the compensa­tion provided under ss. 388 and 654 spills over to the provisions of s. 653 and has a relation as well to s. 655.
There is a passage in the reasons in Toronto v. The King, supra, at p. 104, which is relevant here. Lord Macmillan, speaking for the Privy Council, said this:
Turning now to s. 91 of the British North America Act, their Lordships find that "notwithstanding anything in this Act," and therefore notwithstanding the provisions of s. 109, "the exclusive legislative authority of the Parliament of Canada extends to all matters coming within ... the criminal law". Plainly, and indeed admittedly, this confers on the Dominion Parliament the exclusive right by legislation to create and define crimes and to impose penalties for their commission. In their Lordships' opinion it no less empowers the Dominion legislature to direct how penalties for infraction of the criminal law shall be applied. It has always been regarded as within the scope of criminal legislation to make provision for the disposal of penalties inflicted, as innu­merable instances show, and the power to do so is, if not essential, at least incidental, to the power to legislate on criminal matters for it may well go to the efficacy of such legislation. If the power to direct the manner of application of penalties were to be dissociated from the power to create such penalties and were to be lodged in another authority, it is easy to see how penal legislation might be seriously affected, if not stultified.
Section 653 is at the heart of the compensation provisions of the Criminal Code, and the question of its validity is a matter of first instance in this Court. We have Iong abandoned the notion expressed in the judgment of the Privy Council in In re Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919[3], at p. 198, that there is some fixed "domain of criminal jurisprudence". The Privy Council itself had a different view in Attorney-General of Ontario v. Hamilton Street Railway[4], at p. 529, where it noted that it was "the criminal law in its widest sense" that fell within exclusive federal competence. If that was true of the substantive criminal law, it was equally true of "procedure in criminal matters", which is likewise confided exclusively to Parliament. Indeed, Duff C.J.C. said in Provincial Secretary of Prince Edward Island v. Egan[5], at p. 401, that "the subject of criminal law entrusted to the Par­liament of Canada is necessarily an expanding field by reason of the authority of the Parliament to create crimes, impose punishment for such crimes and to deal with criminal procedure." We cannot, therefore approach the validity of s. 653 as if the fields of criminal law and criminal procedure and the modes of sentencing have been frozen as of some particular time. New appreciations thrown up by new social conditions, or reassessments of old appreciations which new or altered social con­ditions induce make it appropriate for this Court to re-examine courses of decision on the scope of legislative power when fresh issues are presented to it, always remembering, of course, that it is entrusted with a very delicate role in maintaining the integrity of the constitutional limits imposed by the British North America Act.
We are concerned in this case not with a novel form of relief to persons aggrieved by another's criminal conduct, resulting in the loss or destruc­tion of property, but with one in respect of which the novelty is that no challenge has come to this Court on the matter until now. Certainly, as has been often said, time does not validate a statute which is unconstitutional, but I point out that there is an instance in our law where time has invalidated a statute which was generally regarded as constitutional. That was the result of the Margarine Reference, Reference re Validity of Section 5(a) of the Dairy Industry Act[6], holding that federal legislation prohibiting the manufacture, possession and sale of margarine, (first enacted in 1886 when there was concern about the nutritional quality of the product and its danger to health) could not be sustained as an exercise, inter alia, of the federal criminal law power because in the intervening years, changes in methods of manufac­ture and of ingredients had removed any danger to health. Correlatively, it seems to me, the passage of time has resulted in new approaches to criminal law administration so as to confirm the propriety of the long-standing provisions of the Criminal Code for compensation and restitution.
I would refer in this connection to Working Paper 5 of the Law Reform Commission of Canada, October 1974, where in dealing with res­titution (which it conceives in wide terms covering and going beyond what is embraced by ss. 653, 654 and 655), the Commission says (at p. 6) that "not only is restitution a natural and just response to crime, it is also a rational sanction". In propos­ing that "restitution ... become a central consider­ation in sentencing and dispositions" that it should merit foremost but not exclusive consideration, the Commission made a number of relevant observa­tions (at pp. 7-8):
Recognition of the victim's needs underlines at the same time the larger social interest inherent in the individual victim's loss. Thus, social values are reaf­firmed through restitution to victim. Society gains from restitution in other ways as well. To the extent that restitution works toward self-correction, and prevents or at least discourages the offender's committal to a life of crime, the community enjoys a measure of protection, security and savings. Depriving offenders of the fruits of their crimes or ensuring that offenders assist in compen­sating victims for their losses should assist in discourag­ing criminal activity. Finally, to the extent that restitu­tion encourages society to perceive crime in a more realistic way, as a form of social interaction, it should lead to more productive responses not only by Parliament, the courts, police and correctional officials but also by ordinary citizens and potential victims.
Until the decision of the majority of the Manito­ba Court of Appeal in the present case, there has not been any pronouncement by a court in this country in challenge of the validity of ss. 653, 654 and 655. There are decisions which have either assumed the validity of s. 653, or have been silent on it, as for example, Regina v. Scherstabitoff[7], but where validity has been faced it has been affirmed and I shall come to those cases shortly. At the same time, other types of sanctions than the traditional ones of imprisonment and of fines payable to the Crown have been enacted and sustained upon a challenge to their constitutionality. To take three examples, in Industrial Acceptance Corpo­ration Ltd. v. The Queen[8], this Court upheld the validity of a provision for forfeiture of property used in the commission of a criminal offence, whether or not the property was owned by a person other than the one convicted; in Goodyear Tire & Rubber Co. of Canada Ltd. v. The Queen[9], this Court sustained the validity of a provision for a prohibitory order against the continuation or repe­tition of certain offences defined in the provision, the order to be in addition to any other penalty imposed on the person convicted and to be one which could be directed to the convicted person or any other person and, as indicated in Sunbeam Corporation (Canada) Ltd. v. The Queen[10], one which may prohibit the repetition or continuance of the offence in respect of other persons than those who were the victims under the charge or by other means than those condemned under the par­ticular conviction; and in Regina v. Groves[11] O'Driscoll J. of the Ontario Supreme Court upheld the validity under the federal criminal law power of s. 663(2)(e) of the Criminal Code which provides that the Court may include in a probation order a requirement that the convicted person "make restitution or reparation to any person aggrieved or injured by the commission of the offence for the actual loss or damage sustained by that person as a result thereof'.
I wish to dwell for a moment on s. 663(2)(e) because, in the course of argument on this appeal when reference was made to it, there seemed to be little challenge to its validity on the view that provision for restitution or reparation was so inte­grally a part of the sentence as to distinguish it from s. 653; and there was the further point that a wilful breach of a probation order was an offence under s. 666(1) and punishable on summary conviction.
Apart from the question of enforcement under s. 666(1) (which may be contrasted with the enforcement open under s. 653 by filing the compensation order in a superior court with effect as a judgment thereof), I see no difference in principle between a provision for reparation in a probation order, as an additional term of what is in effect a sentence, and a direction for compensation or reparation by an order under s. 653 which, if made at all, must be made at the time sentence is imposed. I find little to choose, except on the side of formality, in the requirement of s. 653 that the compensation order must be based on an application by the person aggrieved rather than be made by the Court suo motu as is apparently, but only apparently, the position under s. 663(2)(e).
The reasons of the majority of the Manitoba Court of Appeal against the validity of s. 653 are those of Matas J.A., concurred in by Hall J.A., and fortified by additional concurring reasons of O'Sullivan J.A. I note that O'Sullivan J.A. agreed that monetary penalties may constitutionally be directed for the benefit of victims of crime because, in imposing a pecuniary penalty which would benefit the victim, the Court would still be imposing a penal sanction, that is to say, punishment, and the compensation would flow from the imposition of the penalty. Why then would the learned Justice hold s. 653 to be invalid? He stated his reasons as follows: The vice of sec. 653, in my opinion, is that it does not regard the payment of an amount equivalent to damage done by a criminal as part of a punishment which will vary with the circumstances of the offence and the offender. It seeks to confer directly on the victim of a crime a right to claim compensation from the wrongdo­er. The section, if valid, would confer on the victim of a crime an additional and alternative civil right to sue in a criminal court for that for which he already has the right to sue in a civil court. In my opinion, this consti­tutes an invasion of the field of property and civil rights and is beyond the powers of Parliament.
Matas J.A. acknowledged in his reasons that an order for compensation under s. 653 is part of the sentencing process but qualified this observation in two ways; first, by pointing out that, although it is included, along with orders under ss. 654 and 655 and dispositions under s. 663(1), in the definition of "sentence" under s. 601, this provision occurs in a part of the Criminal Code relating to appeals; and, second, this inclusion in a definition does not itself determine validity, nor is validity established by the fact that an order under s. 653 is, even apart from the definition in s. 601, made part of the sentencing process under its very terms, since it becomes necessary, in either case, to decide wheth­er it can validly be made part of the sentencing process under the federal criminal law power.
I find these reservations in turn diluted by the agreement of Matas J.A. with the view of Haines J. in Re Torek and The Queen[12] that compensat­ing victims of crime is a valid object in sentencing. I am unable to appreciate, therefore, why there should be any doubt about the validity of a com­pensation provision, tied to the sentencing process as is s. 653, unless refuge is taken in a renewal of a notion that there is a proper domain of criminal law which forecloses an extension of the scheme of sanctions, although, admittedly, there is a rational connection between that part of s. 653 which is challenged and that part which is valid: see Papp v. Papp[13], at p. 336. Re Torek and The Queen, supra, appears to contain the most extensive consideration of the issue under review prior to the conclusions of the Manitoba Court of Appeal in the present case. It is relied on heavily by Monnin J.A., Guy J.A. con­curring, in the dissenting reasons. The Torek case carne before Haines J. on a motion for certiorari by a convicted person to quash a compensation order against him in favour of the victim. (I note in the reasons that the order was sought by the Crown Attorney acting on behalf of the victim.) I reproduce certain portions of the reasons in Torek that sum up most of the considerations, pro and con, that were urged in the argument in this Court. At pp. 298-9 Haines J. said this:
Counsel for the applicant argued forcefully that s. 653 is really legislation pertaining to property and civil rights and falls within the ambit of s. 92(13) of the British North America Act, 1867, rather than criminal law. Counsel pointed out that under s. 653, the accused is deprived of many of the protections which he would have in an ordinary civil action. For instance, the defendant does not really have notice of the claim beforehand and cannot defend it properly. He has no right to discovery by which he could attempt to elicit proper proof of value of the articles which allegedly have been stolen. In the present case, one of the articles allegedly stolen by the applicant was a ring owned by Mrs. Kaminsky. The value of that ring was placed at $1,500, but no proof of purchase or of the value of the ring was led before the Court. In arriving at the sum of $4,377.50, His Honour Judge Reville clearly accepted Mr. Kaminsky's testimony as to exactly what was stolen in cash, the ring and liquor. The applicant argues that had Mr. Kaminsky been forced to undertake a civil action to recover the sum, he would have been forced to prove his loss in a stricter manner. However, under s. 653, all that the complainant need do is merely testify as to value and the accused cannot really disprove it. In other words, the protection afforded to a defendant by the Judicature Act, R.S.O. 1970, c. 228, and the Rules of Practice, are removed, but the consequence is really the same in the sense in that the complainant gets what is, in effect, a judgment, which by s. 653(2) can be enforced in the provincial superior Courts in the ordi­nary manner.
I do not think that there can be any doubt that the right to bring and defend an ordinary civil action is a civil right, which is within the competence of provincial legislation. Nor can there be any doubt that in these circumstances, Mr. Kaminsky could have commenced an action against the applicant. However, it does not follow that the federal Government is entirely without power to order restitution or compensation in some circumstances.
In my view, proceedings under s. 653 can be con­sidered to be part of the sentencing process. It is worth noting that in s. 601, which deals with appeals on indictable offences, the word "sentence" is defined to include an order made under s. 653. It seems to me that it is a valid object in sentencing to prevent a convicted criminal from profiting from his crime by serving a jail term and then keeping the gains of his illegal venture. Counsel for the applicant admitted that it would be proper for the order complained of to have been made as a term of probation, pursuant to s. 663(2)(e) and (h) .. .
I fail to see that there is any meaningful distinction between an order requiring an accused to make restitu­tion or reparation as set out in s. 663(2)(e) and an order requiring an accused to pay by way of satisfaction or compensation as set out in s. 653(1).
More than fifty years ago, Perdue C.J.M. in Rex v. Cohen and Miller[14], came to a similar conclusion in the Manitoba Co