Supreme Court Judgments

Supreme Court of Canada

Hill v. R., [1977] 1 S.C.R. 827

Date :1975-12-19

Edgar Wesley Hill (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1975: March 19; 1975: October 7.

Re-hearing: 1975: December 2; 1975: December 19.

Present: Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

Re-hearing: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Appeal—Supreme Court of Canada—Jurisdiction—Appeal against sentence—No cross-appeal by Crown—Increased sentence requested in Crown’s statement of fact and law—Sentence increased by Court of Appeal—Right of Court of Appeal to increase sentence—Supreme Court Act, R.S.C. 1970, c. S-19, s. 41—Criminal Code, R.S.C. 1970, c. C-34, ss. 603, 605, 607 and 614—Criminal Appeal Rules (Ont.), 10 to 25.

The accused had pleaded guilty to charges of rape and wounding. He was sentenced to 12 years concurrent. On his appeal against sentence this was increased to life imprisonment. Leave to appeal to the Supreme Court of Canada was granted on the question whether, on an appeal by the accused against sentence, where there was no cross appeal by the Crown to have the sentence increased, the Court of Appeal on dismissing the appeal had the power to increase the sentence imposed on the accused. The appeal was heard before a Court composed of eight judges. In the result the appeal failed on an equal division of the members of the Court. The accused made application for a re-hearing; this was granted and the full bench considered the appeal on re-argument.

Held (Laskin C.J. and Spence, Dickson and Beetz JJ. dissenting): The appeal should be dismissed.

Per Curiam: The Supreme Court of Canada has jurisdiction under s. 41 of the Supreme Court Act to entertain an appeal against a sentence imposed for the commission of an indictable offence but will not entertain an appeal against the fitness of a sentence.

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Goldhamer v. The King, [1924] S.C.R. 290, applied; Goldhar v. The Queen, [1960] S.C.R. 60, not followed; Goodyear Tire & Rubber Co. of Canada Ltd. et al. v. The Queen, [1956] S.C.R. 303; Paul v. The Queen, [1960] S.C.R. 452; Parkes v. The Queen, [1956] S.C.R. 134, and [1956] S.C.R. 768; Poole v. The Queen, [1968] S.C.R. 381; Smith v. The Queen, [1959] S.C.R. 638; R. v. J. Alepin Frères Ltée et al., [1965] S.C.R. 359; R. v. MacDonald, [1965] S.C.R. 831, referred to.

Per Martland, Judson, Pigeon and de Grandpré JJ.: Section 614(1) provides that, where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against and may… vary the sentence with(in) the limits prescribed by law for the offence… The words “vary the sentence within the limits prescribed by law” are plain words which fix the scope of the power conferred upon the Court by reference to the maximum applicable penalty and are not to be read as restricted to a variation by way of reduction.

If the accused had not been given adequate notice that at the hearing of his appeal consideration would be given to an increase in his sentence, it would have to be held that he was not given an opportunity to be heard before the adverse determination was made against him. In this case, Counsel for the Crown made it known in the statement of fact and law filed prior to the hearing. Due to this notice the objection to jurisdiction is based purely on a matter of form. There is no basis for adverse comment against Counsel for the Crown or the Court below.

Per Ritchie and de Grandpré JJ.: Parliament having fixed the Court of Appeal with the obligation to “consider the fitness of the sentence”, it would take clear statutory language to limit that consideration to the question of whether the sentence was too severe while precluding any consideration of whether it was severe enough. There is no such language in the Criminal Code and s. 614(1) constitutes a mandatory direction to the Court of Appeal to consider both aspects of the question. The Court of Appeal has power to increase a sentence when an appeal is taken in accordance with s. 603(1) by a person convicted at trial and this power is not dependant on an appeal being asserted by the Crown under s. 605.

Per Laskin C.J. and Spence, Dickson and Beetz JJ. dissenting: A right of appeal is altogether statutory (s. 602) and is governed by the Criminal Code and as to procedure (s. 607) by the rules of court, in this case the Criminal Appeal Rules (Ont.), 10 to 25. The Crown in serving notice on the appellant attempted to assert a

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right of appeal from sentence without complying with the provisions of the Code or the Rules. Further, the powers of the Court of Appeal defined in s. 614 of the Code are exact and do not permit that court to exercise powers other than these given. The powers in paras. (a) and (b) are disjunctive. The word “or” at the end of para. (a) does not permit the Court to exercise its jurisdiction under both paragraphs. It must choose whether to exercise its powers under para. (a) by varying or under para. (b) by dismissing the appeal. The Crown attempted to short-circuit the proper procedure and to intimidate the accused from asserting his right of appeal.

Per Laskin C.J. and Dickson J., dissenting (after the first hearing): An appeal should not be understood to carry additional jeopardy to an appellant beyond that already incurred as a result of the trial, especially where criminal justice is involved. The judgment in appeal is a departure by a provincial appellate Court from judicial justice and a venture into a species of administrative justice, a departure from ordinary appellate procedure all the more startling because criminal justice is involved.

Per Beetz J., dissenting: After a re-hearing of the appeal there is no reason to alter the views previously expressed.

Per Beetz J., dissenting (after the first hearing): The wording of s. 614 was not meant to relieve the Crown from the need to seek leave and, such leave being granted, from actually appealing, merely because a convicted person avails himself of his right to try to have his sentence reduced; nor does s. 614 give to the Court of Appeal jurisdiction to hear what amounts to an appeal as of right by the Crown despite the explicit provision in the Code and where no formal notice was given to the convicted person.

[R. v. McBain (1946), 31 Cr. App. R. 113, applied; Richard v. The Queen, [1970] S.C.R. 1022, distinguished; R. v. Willis, [1969] 1 O.R. 64; R. v. Christakos (1946), 87 C.C.C. 40; Valade v. The Queen (1970), 15 C.R.N.S. 42; Lowry and Lepper v. The Queen [1974] S.C.R. 195; R. v. Badall (1974), 17 C.C.C. (2d) 420; Dennis v. The Queen, [1958] S.C.R. 473; R. v. Raymond, [1962] Que. Q.B. 658; R. v. Antoine (1972), 6 C.C.C. (2d) 162, 17 C.R.N.S. 313, [1972] 2 W.W.R. 305, referred to.]

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RE-HEARING OF AN APPEAL from a judgment of the Court of Appeal for Ontario[1] imposing a sentence of life imprisonment on the appellant on an appeal from sentence, 12 years concurrent, on a plea of guilty to rape and to causing bodily harm. Appeal dismissed, Laskin C.J. and Spence, Dickson and Beetz JJ. dissenting.

J.R. Belleghem, for the appellant.

E.G. Hachborn, for the respondent.

The judgment of Laskin C.J. and Dickson J. after the first hearing was delivered by

THE CHIEF JUSTICE (dissenting)—I have had the advantage of seeing the reasons proposed by my brothers Spence and Pigeon. There are two questions in this appeal, a preliminary question of jurisdiction and the question going to the merits on which leave to appeal was granted. Like my brother Spence, I am in agreement with my brother Pigeon in his disposition of the question of jurisdiction, a disposition that affirms jurisdiction in this case and which consequently involves the overruling of the Goldhar case[2], and of other cases which adopted its approach to deny jurisdiction. On the question of the merits, I am fully in accord with the reasons and conclusion of my brother Spence.

What prompts me to add observations of my own is a troubled concern about the way in which I think the two questions in this appeal have been assessed. Both in the Goldhar case and in other cases, such as Paul v. The Queen[3], which applied it, and in the reasons of my brother Pigeon in the present case, the issue of jurisdiction was resolved according to different canons of statutory construction leading to different results. My brother Pigeon declares in the preseSupreme Court of Canadant case in favour of literal construction while Fauteux J. (as he then was) in Goldhar and in Paul was of the view that literal construction would lead to repugnancy with other statutory provisions.

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Does this mean then that the choice of a canon of construction determines the meaning and application of a statutory provision which is under review? My experience does not persuade me that the matter is so simple. The relevant question is surely that of determining why one approach is selected rather than another, involving therefore a consideration of the factors that bear on the selection. I assume in this connection that different results will flow according to the selection made. This is not however invariably so. In the vast majority of the cases where statutes have to be interpreted and the interpretation determines the result, it makes no difference which canon of interpretation (be it the so-called literal rule or the golden rule or the mischief rule) is chosen.

There are contradictions or difficulties in all of the canons that have been usually relied on. Judges may disagree on what the plain meaning is even when they agree that it is the plain meaning or literal approach that should prevail. Similarly, judges may disagree on what is the social purpose of a statute, although agreeing that under the mischief rule that is what they should seek in construing a statutory provision. In my view, we cannot escape making our own determination of purpose, or policy, regardless of the canon that is invoked; indeed, we make it when we purport to apply one canon rather than another. The present appeal is illustrative of this view in respect of both of the questions that are involved in it.

I take first the preliminary question of jurisdiction. It is to me unreal to think that literal construction determines the result when in order to arrive at it a detailed review of legislative history is required (and properly so) and the purpose of the measure under review is pursued through an examination of the changes made in the jurisdiction and role of this Court. Once it is admitted, as it must be here, that reasonable men can differ on the effect of language directed to a particular end which itself is in issue, we are in a situation where our conclusion will be influenced by our view of what this Court’s jurisdiction and role should be. Since I would not exclude cases from the leave jurisdiction of this Court unless it is quite plain

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that they have been excluded by statute, and since I do not regard the present appeal as plainly excluded I support the conclusion of my brother Pigeon on the question of jurisdiction.

On the question of the merits, I think this is eminently a case where under any canon of construction the result reached by my brother Spence is the preferable one. I readily admit to a predisposition to that result by reason of my dissent, as a member of the Ontario Court of Appeal, in R. v. Willis[4]. My conclusion there was based on a full examination of the legislative history, on an assessment of social purpose as I saw it reflected in the statutory language, and on my appreciation of the nature of an appeal. I have never understood an appeal to carry additional jeopardy to an appellant beyond that already incurred as a result of the trial; and this must be especially so where criminal justice is involved.

The result that I reached in the Willis case and that I would reach here has been made even clearer to me by the canvass that my brother Spence has made of the language of the various provisions of the Criminal Code bearing upon the issue, a canvass which emphasizes literal construction of the whole of s. 614(1) in the context of the rights of appeal open to the Crown as well as to the accused.

The provincial appellate Courts in this country appear to have been influenced by English cases without, at least so far as their reasons disclose, dwelling on the terms of the English legislation on which those cases were based. The judgment of the Manitoba Court of Appeal in R. v. Christakos[5], which seems to have become a pivotal case on the question at issue, contains nothing but a bare reference to some English cases. The majority in R. v. Willis purported to proceed on a literal approach and it was applied without more by the Quebec Court of Appeal in Valade v. R.[6] Since this was the approach taken by my brother Spence in reaching an opposite result, I am reinforced in

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my observations on the canons of construction.

As is well known, the English Criminal Appeal Act of 1907 (U.K.), c. 23 gave express power to increase a sentence on an appeal by the accused. There was no right of appeal against sentence in the Crown, and hence it might well have been the view of the Court of Appeal that the language of s. 4(3) of the 1907 Act (which empowered it “if they think that a different sentence should have been imposed… [to] pass such other sentence warranted in law by the verdict”) would support the exercise of power to impose a harsher sentence even without express authority to do so. But s. 4(3) included the words “whether more or less severe”, indicating an appreciation by the British Parliament of the ordinary limits of an appeal, especially in criminal matters. I may add that the English Criminal Appeal Act of 1968 (U.K.), c. 19, s. 10, as amended by the Courts Act, 1971 (U.K.), c. 23, s. 56 and Sch. 8 has removed the express power theretofore given to increase a sentence upon an appeal against it by an accused.

I regard the judgment in appeal as a departure by a provincial appellate Court from judicial justice and as a venture into a species of administrative justice, a departure from ordinary appellate procedure all the more startling because criminal justice is involved.

I would allow the appeal as proposed by my brother Spence.

Laskin C.J. and Dickson and Beetz JJ. also concurred in the judgment of

SPENCE J. (dissenting)—This appeal was argued at an earlier date before a court composed of eight judges. Several members of this Court, including myself, wrote reasons for judgment and in the result the appeal failed upon an equal division of the eight members of the Court. The

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appellant made application for a rehearing which application was granted and all nine members of the Court considered the appeal upon reargument.

I am still of the opinion that the appeal should be allowed and I, therefore, repeat hereunder my reasons for judgment as previously delivered. They are as follows:

I have had the opportunity to peruse the reasons for judgment written by Mr. Justice Pigeon and I adopt the facts as stated in those reasons and will find it necessary to refer to very few other facts.

In so far as Mr. Justice Pigeon finds that this Court had jurisdiction to consider this appeal, I am in complete agreement with him and I have nothing to add. With respect, however, I am of the opinion that the appeal should succeed and that the Court of Appeal for Ontario had no jurisdiction to increase the sentence imposed upon the accused when the Crown had chosen merely to serve upon the accused a notice that if he persisted in his appeal the Crown would request the court to impose a more severe sentence. This conclusion entails the determination that in my opinion, the decision of the Court of Appeal in R. v. Willis[7], was in error and that also the decision of the Court of Appeal for Manitoba in R. v. Christakos[8], and of the Quebec Court of Appeal in Valade v. The Queen[9], suffered from like defect.

I commence with the proposition that a right of appeal is altogether statutory. This principle itself appears in the Criminal Code in s. 602. It reads:

602. No proceedings other than those authorized by this Part and Part XXIII shall be taken by way of appeal in proceedings in respect of indictable offences.

The right of appeal of the attorney general or counsel at his direction is granted by s. 605 of the Code and as to sentence is dealt with in para. 1(b) thereof which reads:

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605. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

. . .

(b) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law.

Section 607 [am. 1972 (Can.), c. 13, s. 53] of the Code governs procedure on appeals by either the Crown or the accused and provides particularly that the appellant “shall give notice of appeal or notice of his application for leave to appeal, in such manner and within such period as may be directed by rules of court”. Those rules of court, in the case of Ontario, are contained in Rules 10 to 25 of the Criminal Appeal Rules and Rule 12(2) thereof provides that:

12. (2) Where the appeal is from sentence… the Notice of Appeal shall be served within thirty days from the day of sentence.

Rule 13(b) provides:

13. (b) Service of a Notice of Appeal shall be effected… in all other cases by delivering to the office of the Registrar personally or by registered mail three copies of a Notice of Appeal, and, in addition, in appeals by an Attorney General, by personal service on the convicted person.

When the Crown served notice upon the accused, the appellant in the Court of Appeal and in this Court, of an intention to request a more severe sentence, it was, in fact, attempting to assert a right of appeal from sentence. The Crown was doing so without carrying out the formalities required by the provisions of the Code which I have cited and the proper carrying out of such requirements was, in my view, requisite for obtaining the right to ask the Court of Appeal to increase the sentence, and failing due compliance with those requirements, the Crown had no jurisdiction to apply for an increase in sentence and the Court had no jurisdiction to grant such an increase: Dennis v. The Queen[10].

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If the Crown had complied with the requirements, then the Crown would have had to make application for leave to appeal from the sentence and both upon such application and on the appeal itself, if leave to appeal had been granted, the Crown would have the same onus as has an appellant on all appeals. Using the procedure which the Crown used in this particular case, there was no statutory onus at all upon the Crown and it would appear that, in fact, the onus was thrown upon the accused not only in his vain attempt to demonstrate that the sentence imposed on him was too severe but to prevent that sentence from being increased. I am, moreover, of the opinion that the powers of the Court of Appeal defined in s. 614 of the Code are exact and do not permit the Court to exercise powers other than those given. Section 614(1) provides:

614. (1) Where an appeal is taken against sentence the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may upon such evidence, if any, as it thinks fit to require or to receive,

(a) vary the sentence with the limits prescribed by law for the offences of which the accused was convicted, or

(b) dismiss the appeal.

In the present appeal, the certificate of the formal judgment of the Court of Appeal reads, in part:

THIS COURT DID ORDER THAT the said appeal should be and the same was thereby dismissed but that the sentence of twelve (12) years on the charge of rape should be varied to one of life imprisonment.

Jessup J.A., in giving reasons for the Court of Appeal, said:

In the result I would dismiss the appellant’s appeal but vary the sentence on the charge of rape by changing it to one of life imprisonment.

So the certificate of the formal order accurately reflects the reasons given for the Court of Appeal.

It will be seen, therefore, that the Court of Appeal purported to act under both para. (a) and para. (b) of s. 614(1) in that it not only dismissed the appeal as authorized by para. (b) but it also varied the sentence as authorized by para. (a). The

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powers in paras. (a) and (b) are disjunctive. The word “or” is the word which is at the end of para. (a) and I am of the opinion that s. 6114 of this Code does not permit a court on the consideration of a specific appeal to exercise its jurisdiction under both paras. (a) and (b) but that the Court of Appeal must choose whether to exercise its powers under para. (a) by varying or under para. (b) by dismissing the appeal. I think this is a convincing indication that by the words of s. 614(1)(a) “vary the sentence with the limits prescribed by law for the offences of which the accused was convicted”, Parliament only intended to permit a variation by way of decrease upon the appeal of an accused person or, if the Crown were the appellant, to consider a variation by way of increase upon the Crown’s appeal.

It is, I think, of some interest and value to note that in the United Kingdom, when the power of the Court of Appeal to increase sentence was granted by s. 4(3) of the Criminal Appeal Act, 1907 (U.K.), c. 23, the Appellate Court was empowered to quash the sentence passed at trial and “(2) pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor”. Thus, the Parliament in the United Kingdom by specific words granted a power to increase. No such words as “whether more or less severe” appear in s. 614(1)(a) of the Code and, in my view, the words “such other sentence warranted in law” as they appear in the United Kingdom statute and the words “the sentence with the limits prescribed by law” as they appear in the Criminal Code are exactly in pari materia. It is, I think, indeed significant that Parliament in the United Kingdom thought it necessary to add a specific authorization for the imposition of a more severe sentence.

I note also the opening words of s. 614(1) “where an appeal is taken against sentence” and that the words are not “where any appeal is taken against sentence”, again indicating that the power to vary is limited to a power in considering an appeal not in considering a motion by the Crown urged at the time that an appeal by the accused is before the Court.

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There is another reason for my conclusion which I find most convincing. In the present case, counsel for the Attorney General relying on R. v. Willis, supra, first advised counsel for the appellant by telephone and later confirmed by letter that if the appellant had put his sentence in issue the Court of Appeal would be at liberty to increase it if it saw fit and that the Crown would be asking the Court of Appeal to increase the sentence, possibly to life. The Crown and the appellant’s counsel agreed to adjourn the appeal and maintain the status quo of the proceedings to enable the appellant’s counsel to obtain instructions. Jessup J.A., in his reasons for judgment, said:

The appellant was given notice of the Crown’s motion from its Statement of Law and Fact and did not abandon his appeal but rather argued it with vigour.

I am of the opinion that this is a most objectionable in terrorem procedure.

An accused person, on the advice of counsel, is of the opinion that he has a serious appeal as to the quantum of sentence which he wishes to urge before the Court of Appeal. The Crown seeks to intimidate him from doing so by threatening that if he does urge his appeal then the Crown will ask that the sentence be increased. If the Crown desires to obtain an increase in sentence, then the Crown should apply for leave to appeal against sentence and take on the burden of an appellant to which I have already referred, rather than by threatening the accused that if he is bold enough to assert his own right of appeal dire results will ensue.

To the foregoing reasons, I wish to add the following.

I am of the opinion that there is another factor of some importance. Had the Crown acted in accordance with the usual procedure and cross-appealed against sentence as I have already pointed out, the Crown would have had to obtain leave to do so. The time for application for leave, as I

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have noted above and as fixed by Rule 12(2) of the Criminal Appeal Rules, was within thirty days from the date of sentence.

The sentence was passed on July 11, 1973. The appellant appealed to the Court of Appeal by notice dated July 13, 1973 but served on July 18, 1973. The time for application for leave to cross-appeal, therefore, had expired on August 10, 1973. There is nothing in the appeal to show that the Crown had at that date any intention to cross-appeal and, in fact, there is no indication that the Crown was considering asking for an increase of sentence until October 16, 1973 when counsel for the Attorney General verbally advised counsel for the appellant of an intention to ask the Court of Appeal to increase the sentence.

If the Crown had sought to bring the matter before the Court of Appeal at that time, it would have had to apply for an extension of the time within which application for leave might be given. Such application is governed by the provisions of s. 607(2) of the Code which provides:

(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given, but this subsection does not apply where a sentence of death has been imposed pursuant to a conviction.

Although the said subsection does not set out any criteria for the grant of such extension of time, it has been said in a series of cases that such extension will not be granted as of course butt only upon special circumstances. So, in R. v. Raymond[11], Montgomery J.A., considering such an application, said at p. 659:

The reason given is insufficient: It should not be beyond human ingenuity to devise an administrative system whereby the proper officers of the Crown could decide whether or not to appeal within 15 days of such a judgment; if this cannot be arranged, the department should make representations to have either the Court’s rules of practice or the Criminal Code suitably amended. To accept this as a reason for extending the delay would be tantamount to deciding that the Crown is more or less automatically entitled to a delay in every case of

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an appeal of this nature. The accused, if he wishes to obtain a delay, must demonstrate some special circumstances; there is no reason why this rule should not apply to the Crown.

and in R. v. Antoine[12], Guy J.A., considering such an application as a member of the Court of Appeal for Manitoba, held that in order to grant the application he would have had to find that there was an intention to appeal sentence prior to the time for making the application for leave having expired. As I have said, no such intention on the part of the Crown was manifest in the present case.

I cite this point as further demonstration of the fact that the Crown, by choosing the procedure it has chosen in the present case, has in fact short-circuited the proper procedure provided in the Criminal Code for bringing to the Court of Appeal the Crown’s submission that a sentence passed at trial should be increased. Not only must theCrown, under the ordinary procedure, apply for and obtain leave to appeal but the Crown must do so within a thirty-day period after the sentence and if the Crown does not make application within that limited period it must obtain an extension of that period for some special reason. None of that procedure, of course, was required from the Crown under the circumstances existing in the present appeal.

The result of the rehearing is that the appeal stands dismissed by a majority of five judges to four. Therefore, it is apparent that after two arguments in this Court the appellant still is condemned to a sentence of life imprisonment by this slim majority after an experienced provincial court judge having heard all the evidence was of the opinion that a twelve-year sentence was proper.

It may well be that Parliament will wish to consider whether the provisions of s. 614 of the Criminal Code should be at least clarified if not amended. Parliament, in such consideration, might

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have regard for the fact that the statutes in the United Kingdom, which as I have pointed out previously made specific provision permitting the Court of Criminal Appeal to increase the appellant’s sentence upon his application to decrease it, have been amended by the Criminal Appeal Act, 1968 (U.K.), c. 19, s. 11(3), by which the power of the Court of Appeal was limited to quashing the sentence or passing such sentence or making such order as the Court thought appropriate for the case and as the court below had power to pass or make “but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below”. This provision was enacted despite the fact that the Crown in the United Kingdom has no appeal against the sentence passed after trial.

For all of those reasons, I would allow the appeal and restore the sentence imposed by the Provincial Court Judge.

The judgment of Martland, Judson, Pigeon and de Grandpré JJ. was delivered by

PIGEON J.—This case having been reheard before the full Court I will first repeat the reasons written by me after the first hearing.

Before Provincial Court Judge, D.V. Latimer, the appellant pleaded guilty to charges of rape and wounding. He was sentenced to twelve years concurrent. On his appeal against sentence, this was increased to life imprisonment. Leave to appeal was granted by this Court on the following question of law:

On an appeal by the accused against sentence, where there is no cross-appeal by the Crown to have the sentence increased does the Ontario Court of Appeal on dismissing the accused’s appeal have the power to increase the sentence imposed upon the accused?

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Rather than summarize the reasons stated by Jessup J.A. for the Court of Appeal, I will quote the essential.

The Appellant appeals his sentence of twelve years imposed after his plea of guilty to a charge of rape and his sentence of twelve years concurrent imposed upon his plea of guilty to a charge of causing bodily harm with intent to wound, maim or disfigure. The sentences having been put in issue, the Crown moves for their increase, citing Regina v. Willis, [1969] 1 O.R. 64. The appellant was given notice of the Crown’s motion from its Statement of Law and Fact and did not abandon his appeal but rather argued it with vigour.

Under circumstances indicating planning and deliberation, the appellant went at night to a home where the fourteen-year-old, virginal complainant was baby-sitting. After assaulting her with his fists he forcibly stripped her of all her clothes and, although she was menstruating, then raped her. He then forced the complainant, unclothed except for a jacket she threw on, to go outside with the evident intention of taking her somewhere in his car. When the complainant attempted to run away he overtook her and forced her back into the house. When the complainant then attempted to use the telephone, the appellant knocked her to the floor and with a paring knife stabbed her repeatedly in the face and eyes and about the throat until the knife broke. As a result the complainant may lose the sight of one eye. The appellant then fled the house abandoning the wounded complainant. While the appellant had considerable to drink the evening of the crimes, there is no suggestion that he lacked the requisite intent to commit them.

. . .

The reports and evidence available to the learned Provincial Judge at the time of sentencing show that the appellant is not insane, mentally ill or psychotic. However, he suffers from a personality disorder manifested in impulsiveness, low stress tolerance, anger which he does not know how to handle properly and difficulty in knowing his own sexual identity. Dr. Karen Galbraith, a psychologist, and Dr. Peter Rowsell, a psychiatrist, both agreed that he was dangerous to the community. Both were testifying for the appellant.

. . .

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When an accused has been convicted of a serious crime in itself calling for a substantial sentence and when he suffers from some mental or personality disorder rendering him a danger to the community but not subjecting him to confinement in a mental institution and when it is uncertain when, if ever, the accused will be cured of his affliction, in my opinion the appropriate sentence is one of life. Such a sentence, in such circumstances, amounts to an indefinite sentence under which the Parole Board can release him to the community when it is satisfied, upon adequate psychiatric examination, it is in the interest of the accused and of the community for him to return to society. The policy expressed in my opinion is that of the Criminal Division of the English Court of Appeal, cf. Thomas, Principles of Sentencing at pp. 272-279.

In the result I would dismiss the appellant’s appeal but vary the sentence on the charge of rape by changing it to one of life imprisonment.

On the hearing of this appeal, counsel for the Crown objected to the jurisdiction of this Court relying on Goldhar v. The Queen[13], a decision rendered on an application for leave to appeal heard by a court of five judges in which it was held, Cartwright J. dissenting, “that this Court has no jurisdiction to entertain an appeal against a sentence imposed for the commission of an indictable offence”. In my view, that decision is not binding and should not be followed for the following reasons.

Before the 1949 amendments, the Supreme Court Act did not confer jurisdiction to this Court in criminal cases. This was due to the following words in s. 36: “except in criminal causes and in proceedings for or upon a writ of habeas corpus, certiorari or prohibition arising out of a criminal charge”. Therefore, any jurisdiction in criminal matters had to be found in the Criminal Code or other statute.

In Goldhamer v. The King[14], the appeal to this Court was from a judgment of the Quebec Court of Appeal increasing the sentence passed on conviction. This had been done on an appeal by the Crown under s. 1013 of the Criminal Code then in

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force as replaced by 1923 (Can.), c. 41, s. 9 and reading in part as follows:

1013. A person convicted on indictment may appeal to the Court of appeal against his conviction,…

(2) A person convicted on indictment, or the Attorney General, or the counsel for the Crown at the trial, may with leave of a judge of the court of appeal, appeal to that court against the sentence passed by the trial court, unless that sentence is one fixed by law.

Appeals to this Court were then governed by ss. 1024 and 1024(a) of the Criminal Code. The latter section* governed appeals by leave from judgments setting aside or affirming a conviction of an indictable offence in the case of a conflict with a judgment of another court of appeal in a like case. Therefore, it was clear that the only possible foundation for the appeal was in s. 1024 of which the only relevant part, subs. 1, then read as follows:

1024. Any person convicted of any indictable offence, whose conviction has been affirmed on an appeal taken under section ten hundred and thirteen may appeal to the Supreme Court of Canada against the affirmance of such conviction:** Provided that no such appeal can be taken if the court of appeal is unanimous in affirming the conviction, nor unless notice of appeal in writing has been served on the Attorney General within fifteen days after such affirmance or such further time as may be allowed by the Supreme Court of Canada or a judge thereof.

It was held that this Court had no jurisdiction Duff J. saying:

As my brother Idington points out, the word “conviction” cannot, perhaps, be said to be capable of only one necessarily exclusive meaning, and it may be capable of being employed with a signification including the sentence. Section 1013 does, however, I think, distinguish very clearly between the conviction and the sentence for

[Page 845]

the purposes of appeal, and the Act of 13-14 Geo. V, by which the present section was brought into force, made no change in section 1024. Accordingly, I think the word “conviction” in the last mentioned section should be read in its less technical sense, and consequently that there is no right of appeal to the Supreme Court of Canada from the judgment given by a court of appeal on an appeal under subsection (2) of section 1013.

In 1949, after the Privy Council had affirmed[15] (A.G. Ont. v. A.G. Can.) the opinion of this Court on a reference[16] (Re Privy Council Appeals), Parliament enacted important amendments to the Supreme Court Act by 1949 (Can.), c. 37. Appeals to the Privy Council which had previously been abolished in criminal matters only, by re-enacting in 1933 s. 1024.4 of the Criminal Code, were definitely abolished in all cases. Much wider provision than before was made for appeals by special leave in a new s. 41, the material part of which is as follows (parentheses indicate words deleted in 1956):

41. (1) Subject to subsection three (and to section forty-four) an appeal lies to the Supreme Court of Canada with leave of that court from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court of Canada, whether or not leave to appeal to the Supreme Court of Canada has been refused by any other court.

(3) No appeal to the Supreme Court of Canada 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.

The first case in which leave to appeal in a criminal cause was sought to be obtained under those provisions appears to be The Goodyear Tire and Rubber Co. of Canada Ltd. et al. v. The Queen. It is unfortunately reported on the merits only[17]. The judgment appealed to this Court was a decision of the Court of Appeal for Ontario

[Page 846]

affirming with variation an order of prohibition issued out of the Supreme Court of Ontario under the provisions of s. 31 of the Combines Investigation Act, R.S.C. 1927, c. 26, as amended, subsequent to a conviction upon indictment for an offence under that Act. The appeal to the Court of Appeal for Ontario had been taken under the provisions of the Criminal Code pertaining to an appeal from a sentence and the Court of Appeal had varied the judgment appealed from expressly holding it to be a sentence by virtue of s. 1012(e) of the Criminal Code providing that for the purposes of appeal: “ ‘sentence9 includes any order of a trial court made on conviction with reference to the person convicted.” ([1954] O.R. 377, at p. 396). The application for leave was first heard on June 22, 1954. A re-argument was directed that took place on December 6, 1954. On January 25, judgment granting leave was rendered by the full Court. No written reasons were delivered and the decision was recorded as follows in the Minute Book:

The majority being of the opinion that this Court has jurisdiction to grant leave to appeal, the applications therefor are allowed.

The material filed by the applicants on the motions for leave shows that the applications were made exclusively under s. 41 of the Supreme Court Act. The decision in Goldhamer was referred to as showing that this Court did not have jurisdiction under the Criminal Code. On the merits, the judgment of the Court of Appeal was affirmed and this would seem to indicate that this Court did not consider that the Court below had erred in asserting jurisdiction to deal with the order as being a sentence.

The next case of an application for leave to appeal in a criminal cause under the Supreme Court Act was Parkes v. The Queen[18]. The subject-matter of the appeal was a judgment of the Court of Appeal for Ontario dismissing an appeal from a decision of a County Court judge finding

[Page 847]

that the appellant was an habitual criminal and sentencing him to an undetermined term in the penitentiary under the provisions of s. 660 of the Criminal Code. It was held unanimously by a Court of five judges that such a decision is a judgment within the meaning of that word in s. 41(1) and does not fall within the terms of s. 41(3) so that this Court had jurisdiction to grant leave. In the reasons of the Court no reference was made to the decision in the Goodyear case, but it was referred to in the material on the application for leave. On the merits, the appeal was allowed unanimously and the sentence of preventive; detention was quashed[19]. (This precedent has been uniformly followed in appeals from sentences of preventive detention, jurisdiction being asserted to hear such appeals in a number of cases culminating in Poole v. The Queen[20] where the majority of the full Court held that this applied not only against the finding that the accused is an habitual criminal but also to the conclusion that it is expedient to sentence him to preventive detention.)

A few years later, s. 41 was considered in connection with an offence other than an indictable offence in Smith v. The Queen[21]. The appeal was from the dismissal of an application for a writ of certiorari against a finding of delinquency against a child under the Juvenile Delinquents Act. Leave to appeal was granted subject to argument as to the right to grant leave. On the merits, the appeal was allowed. The reasoning of Kerwin C.J. (at p. 642), concurred in expressly by Judson J. and inferentially by the other members of the Court, was as follows on the question of jurisdiction.

This Court had power to grant leave to appeal under subs. (1) of s. 41 of the Supreme Court Act, R.S.C. 1952, c. 259:

41. (1) Subject to subsection (3), an appeal lies to the Supreme Court with leave of that Court from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which

[Page 848]

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.

Subsection (3) reads:

41. (3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.

It has no application as the judgment of the Court of Appeal is not one affirming a conviction.

It will be noted that up to nearly ten years after the enactment of s. 41, this Court uniformly adhered to literal construction and granted leave to appeal in criminal matters from any judgments not excluded by subs. (3). Consideration must now be given to the decisions in which a different view was taken. This will be done in chronological order.

In Goldhar v. The Queen[22], the application was for leave to appeal a judgment of the Court of Appeal for Ontario dismissing an appeal against a sentence imposed on conviction for an indictable offence. In the reasons of the majority of the five judges sitting, Fauteux J., after saying that no right of appeal to this Court was given in such case by the provisions of the Criminal Code, pointed out the inconsistencies that would ensue if this Court had jurisdiction in the matter of sentence under s. 41 of the Supreme Court Act and said (at p. 70):

I cannot think that Parliament ever intended or even contemplated these inconsistencies flowing from either one of these interpretations. And this, in my view, clearly indicates that it was never intended by Parliament that the right of appeal given under s. 41 would extend to indictable offences, as distinguished from non indictable offences.

Reference was made to Goldhamer v. The King but not to any of the previous decisions above mentioned dealing with the application in criminal matters of s. 41 of the Supreme Court Act after its replacement by the statute of 1949.

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In Paul v. The Queen[23], substantially the same reasoning was made on an application for leave to appeal from the refusal of a Court of Appeal to hear an appeal in a summary conviction matter or alternatively from the dismissal of the appeal to a County Court judge. It was held on a four to three division that this Court did not have jurisdiction. Taschereau J. (as he then was) said (at pp. 457-458):

It was held in Goldhar v. The Queen, that if an appeal from a sentence was not given by 41(3), nor the Criminal Code, we could not find any authority in 41(1) to review a sentence imposed by the Courts below. In that case it was stated by Fauteux J. with whom all the members of the Court agreed, Cartwright J. disisenting, that in order to determine if a convicted person could appeal against a sentence in a matter of indictable offence, it was not permissible to look to s. 41(1) for the authority to intervene, but only in the Criminal Code which does not permit an appeal against a sentence.

The general proposition that matters which are not mentioned in 41(3) must be taken to be included in 41(1) has been ruled out in Goldhar, supra.

Fauteux J. said (at p. 467):

The proposition that judgments which are not within the scope of s. 41(3) are necessarily embraced in s. 41(1) has been ruled out in the Goldhar case, where a strict adherence to the rule of literal construction of s. 41 was, in the matter, shown to lead to repugnancy. Such a result would equally obtain if the judgment refusing leave to appeal, in this case, was held to come within s. 41(1). For on the same reasoning, one would have to hold that, for indictable offences, s. 41(1) authorizes an appeal to this Court from a judgment of the Court of Appeal refusing leave to appeal to its Court from the verdict or judgment of first instance on grounds of mixed law and facts or pure facts. Such a jurisdiction would be inconsistent with the limitation of our jurisdiction to pure questions of law in criminal appeals from convictions or acquittals of offences.

The majority decision in Paul v. The Queen was followed by a Court of five judges in R. v. J.

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Alepin Frères Ltée[24]. Also in R. v. MacDonald[25], a four to three decision, an appeal by the Crown from a judgment setting aside a sentence of preventive detention was quashed, the majority relying on the decisions in Goldhar, Paul and Alepin Frères.

There is a clear conflict between the four last mentioned cases and the other judgments adhering explicitly or implicitly to a different view of s. 41. This means that on any view of the rule of stare decisis the Court has to choose between the two conflicting views.

In my opinion, the literal construction is preferable not only because in the absence of ambiguity the literal meaning should always be adhered to despite any inconsistencies short of absurdity, but also because any assumption that Parliament did not intend to depart from the previous state of the law is unjustified. Section 41 was enacted substantially in its present form at the time when appeals to the Privy Council were being abolished and this court was being made truly supreme. The Privy Council had enjoyed unlimited jurisdiction by special leave and it is apparent that the new provision was intended to effect the change from a limited specific jurisdiction to a broad general jurisdiction. To hold that the inconsistencies resulting from this sweeping change indicate the intention of leaving some wide gaps open is, in my view, entirely unwarranted. On the contrary, the enactment of a provision that undoubtedly confers some jurisdiction in criminal matters beyond that existing under the Criminal Code, clearly indicates Parliament’s will to remedy the omission to extend the jurisdiction of this Court in criminal cases when the Privy Council’s jurisdiction in such cases was effectively abolished after the Statute of Westminster.

No reason has been advanced for construing the words “convicting” and “conviction” in subs. (3) of s. 41 otherwise than the same words in s. 1024.1 of the Criminal Code in force when it was enacted

[Page 851]

had been construed in the Goldhamer case. It is already firmly established by a long line of cases in this Court that those words in s. 41(3) do not include a judgment imposing a sentence of preventive detention. It is also established by the decision of the full Court in the Goodyear case that those same words do not apply to an order of prohibition that was a sentence within the meaning of the definition of that word in the same Criminal Code. Although the possibility of a distinction with respect to other sentences was left open in Poole, this now appears impossible on further consideration especially in view of what was said in Goldhamer.

For those reasons, it does not appear to me that s. 41(3) should be construed otherwise that in accordance with the strict meaning of “convicting” and “conviction” as established by the Goldhamer decision. This means that, in my view, the objection to jurisdiction fails. However, I consider it appropriate to point out that such conclusion implies no departure from our rule of never entertaining an appeal concerning the fitness of a sentence.

Dealing now with the question on which leave was granted in this case, the relevant provisions of the Criminal Code are the following:

603. (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal

(a) against his conviction.

or

(b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law.

605. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

. . .

(b) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in

[Page 852]

proceedings by indictment, unless that sentence is one fixed by law.

607. (1) An appellant who proposes to appeal to the court of appeal or to obtain the leave of that court to appeal shall give notice of appeal or notice of his application for leave to appeal, in such manner and within such period as may be directed by rules of court.

(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given, but this subsection does not apply where a sentence of death has been imposed pursuant to a conviction.

. . .

614. (1) Where an appeal is taken against sentence the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may upon such evidence, if any, as it thinks fit to require or to receive,

(a) vary the sentence with the limits prescribed by law for the offence of which the accused was convicted, or

(b) dismiss the appeal.

(In 614(1) (a) “with” is a typographical error, it should read “within” as in s. 593 of the Criminal Code as enacted by 1953-54, c. 51).

The question, in my view, is whether, on an appeal against sentence by the accused, the words “vary the sentence within the limits prescribed by law” are to be read as restricted to a variation by way of reduction.

Counsel for appellant relied heavily on the judgment of this Court in Richard v. The Queen[26].It was an appeal in a summary conviction case. At trial, the accused who had been charged with criminal negligence in the operation of his motor vehicle, was convicted of the lesser offence of driving in a manner that was dangerous to the public. On his appeal from this conviction he was, at the end of the trial de novo, convicted of criminal negligence as originally charged. The majority in this Court, reversing the Ontario Court

[Page 853]

of Appeal, held that, in what is now s. 755(1), the words “the appeal court shall hear and determine the appeal by holding a trial de novo” meant in the case of an appeal “from a conviction” a determination in respect of such conviction, not in respect of the charge originally laid. Consequently, the judge hearing the appeal had no power to enter a conviction of the more serious offence originally charged, because the conviction for the lesser included offence involved an acquittal of the more serious offence. There was no provision which, on an appeal by the accused from the conviction for the lesser offence, authorized the judge hearing such appeal to set aside that acquittal.

In my view, this decision on the construction of a different provision concerning appeals from summary convictions is of no assistance in the instant case. It dealt with the meaning of the words “determine the appeal from a conviction”, while here the words used are “vary the sentence within the limits prescribed by law”. In my view, those are plain words which fix the scope of the power conferred upon the court by reference to the maximum applicable penalty, irrespective of the prior decision. I am unable to find any good reason for departing from this plain meaning or for introducing restrictions.

A full review of the legislative history of the enactment was made by Laskin J.A. (as he then was) in his dissenting reasons in R. v. Willis[27]. Concerning the power to vary mentioned in Rule 503 (Ontario) and in Rule 100 of the Supreme Court of Canada Rules, I cannot, with respect, agree that, without those provisions the power to increase or decrease damages in civil cases, even without a cross-appeal or notice to vary, would exist. In my view, those rules involve a recognition that the jurisdiction exists to do it and do not

[Page 854]

create it. Rule 100 reads:

Rule 100.—It shall not, under any circumstances, be necessary for a respondent to give notice of motion by way of cross-appeal, but if a respondent intends upon the hearing of an appeal to contend that the decision of the court below should be varied, he shall, within fifteen days after the service of the notice of appeal, or such further time as may be prescribed by the Court or a Judge in Chambers, give notice of such intention to all parties who may be affected thereby. The omission to give such notice shall not in any way interfere with the power of the Court on the hearing of an appeal to treat the whole case as open, but may, in the discretion of the Court, be ground for an adjournment of the appeal or for special order as to costs.

It seems to me that this provision as writtenclearly implies that, once the case is inscribed in appeal, jurisdiction exists to “treat the whole case as open”. The giving of notice to vary is only aprocedural requirement which can be remedied or waived, if omitted. The same should be said, I think, with respect to the prescribed form for prisoner appeals including this notification:

11. Further take notice that if you appeal from sentence the Court of Appeal may increase your sentence without further notice to you if the Court of Appeal considers the sentence inadequate.

Although those rules and forms cannot have the effect of conferring a jurisdiction which the courts of appeal would not otherwise have, they ought, I think, to be considered as of great authority in support of the proposition that the jurisdiction does exist. I will also note that decisions similar to that of the Ontario Court of Appeal in the Willis case were rendered by the Manitoba Court of Appeal in R. v. Christakos[28] and by the Quebec Court of Appeal in Valade v. R.[29]

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If the accused had not been given adequate notice that at the hearing of his appeal, consideration would be given to an increase in his sentence, I would think that the same rule ought to be applied as in Lowry and Lepper v. The Queen[30] where sentence was passed without hearing submissions. It would have to be held that the accused was not given an opportunity to be heard before the adverse determination was made against him. In this case however, counsel for the Crown made it known prior to the hearing that an increased sentence would be required. This was mentioned in the statement of fact and law filed by the Crown on the appeal.

Due to this notice, it seems to me that the objection to jurisdiction is based purely on a matter of form. Counsel for the Crown could, under s. 605(b) apply for leave to appeal against the sentence. The time for making this application is not fixed by law and may be extended at any time by the Court of Appeal under s. 607 as well as Rule 28(1) of the Supreme Court of Ontario Criminal Appeal Rules,

Even assuming that an application by counsel for the Crown to the Court of Appeal was necessary for directing an increase in sentence, I fail to see what could prevent the Court at the hearing of the appeal from treating the statement of fact and law as a notice of appeal and granting an extension of time, no question could be raised as to counsel’s instructions, R. v. Badall[31]. To say that the Court of Appeal lacked jurisdiction because all this was not spelled out in a formal order is, in my view, to treat as going to jurisdiction a purely formal objection. Sometimes, as in Dennis v. The Queen[32], a failure to comply with certain formalities is destructive of jurisdiction, but this is so only when, by law, jurisdiction is made dependent on a particular formality that was omitted. This is not one of those cases as I see it.

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I would also consider as without substance the objection that, under s. 614(1) the Court of Appeal may vary the sentence or dismiss the appeal and therefore cannot do both as was done by the formal order in this case. What was intended to be done is abundantly clear: it was to vary the sentence. This cannot be nullified by the superfluous addition of words purporting to dismiss the appeal.

It does not appear to me that the construction of s. 514 Cr. C. can be influenced by consideration of s. 4(3) of the United Kingdom Criminal Appeal Act 1907 (7 Edw. VII, c. 23) which was in the following terms:

4. (3) On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal.

It must first be noted that the United Kingdom Act gave a right of appeal to the person convicted only, not to the Crown as well. In such a situation, one can readily see why it was deemed necessary to provide explicitly that, on an appeal, the Court would have jurisdiction, not only to decrease, but also to increase the sentence. No such implication ever arose under our Code in which there is a right of appeal by the Crown as well as by the person convicted.

It must also be considered that while the sections of our Criminal Code dealing with appeals were, in 1923, generally replaced by verbatim copies of the corresponding provisions of the above-mentioned U.K. Act, such was not the case with respect to the particular provision with which we are here concerned. The right of appeal from sentence by the Crown as well as by the person convicted was preserved. Section 1015(1) defining the powers of the Court of Appeal on appeals against sentence was a re-enactment of s. 1055A enacted by 1921 (Can.) c. 25, s. 22, as noted by Laskin J.A., as he then was, in R. v. Willis, supra,

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at p. 73, it was not copied from s. 4(3) of the U.K. Act, anymore than present s. 614 was.

I should also say that I doubt very much whether, in any case, the omission in an enactment of some words found in a similar enactment of another jurisdiction can ever have the effect of restricting the clear meaning of the words actually used. Would not this imply that words used elsewhere could never be omitted as surplusage?

Concerning the propriety of Crown prosecutors, on an appeal from sentence by the accused, requesting an increase without a formal inscription in appeal to that end, I would quote those words of Goddard L.C.J. spoken on behalf of a Court on which he sat with Lewis J. and Denning J. (as he then was) (Re: Harry John McBain[33], at pp. 114-5):

The appellant was convicted on the clearest possible evidence, and was sentenced to three years’ penal servitude. He had not been convicted before. He applied for leave to appeal against both conviction and sentence. The Court refused his application for leave to appeal against conviction, but gave him leave to appeal against sentence for one reason only, in order that it might consider whether or not it should substantially increase his sentence.

Hitherto, when this Court has considered an application for leave to appeal against sentence, and has formed the opinion that the sentence was not severe enough, it has generally warned the applicant that if he persists in his appeal the Court may increase his sentence. This Court no longer intends to take that course. The Criminal Appeal Act, 1907, does not require it, but by section 4(3) provides that where a prisoner applies for and obtains leave to appeal against his sentence, this Court, if it thinks that a different sentence should have been passed, shall pass such sentence as it thinks ought to have been passed, whether greater or less than the sentence actually passed.

In that case there was no increased sentence, but the benefit of time served pending judgment in

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appeal was denied. However, three other cases are noted in which a two year increase was ordered. Two other such cases are noted in the 1962 Criminal Law Review (pp. 495, 853). It is true that the United Kingdom Parliament provided by the Criminal Appeal Act 1968 (U.K.), c. 19 s. 11(3), that the Court of Appeal shall so exercise their powers that the appellant is not more severely dealt with on appeal than he was dealt with by the Court below. However, the Canadian Parliament has not so amended s. 614(1) Cr. C. and has not repealed the right of appeal by the Crown against sentence.

Inasmuch as counsel for the accused had reasonable notice that an increased sentence was sought and opportunity to be heard on that, as was the case herein as in Willis, every essential of proper judicial conduct was met. On any view of this case, there is no basis for adverse comment against counsel for the Crown or the Court below.

At the rehearing, counsel for the appellant pressed the argument that, if the power of the Court of appeal was sought to be supported on the basis that it could grant an extension of time to the Crown for a cross-appeal against sentence and treat its request for an increase as such a cross-appeal, the accused was entitled to urge that no proper ground was established for such use of the Court’s discretion. In my opinion, the mere fact that the Court of Appeal at the hearing feels that there are serious grounds to question the adequacy of the sentence is quite sufficient to justify a decision to grant an extension and entertain submissions on that issue, provided the accused is not taken by surprise and given an adequate opportunity to be heard on the point. Furthermore, I remain of opinion that upon any appeal against sentence for an indictable offence the Court of Appeal has anyway full jurisdiction to vary as deemed proper.

I would dismiss the appeal.

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de Grandpré J. also concurred in the judgment of

RITCHIE J.—I have had the advantage of reading the reasons for judgment of the other members of the Court which were delivered on the first hearing of this appeal and I agree with their unanimous conclusion as to the jurisdiction of this Court.

The jurisdiction of the Court of Appeal of Ontario was invoked by the appellant himself in accordance with the provisions of ss. 603, 607 and 614 of the Criminal Code, and s. 614(1) makes it plain that in the exercise of that jurisdiction the court “shall… consider the fitness of the sentence.” In the discharge of this duty, the court is not limited to considerations affecting the appellant but must also have regard to the welfare of the community and the public interest generally. The deterrent effect which the sentence may have on others and to some extent the standards which have been established in other cases of a like kind, are also relevant and in the present case the stark horror of the crime itself would of necessity be compelling consideration.

Parliament having fixed the Court of Appeal with the obligation to “consider the fitness of the sentence”, it would, in my view, require clear statutory language to limit that consideration to the question of whether the sentence was too severe while precluding any consideration of whether it was severe enough. There is no such language in the Criminal Code, and I am of opinion that the opening paragraph of s 614(1) constitutes a mandatory directory direction to the Court of Appeal to consider both aspects of the question.

In the result, where an appeal against sentence is taken by the person convicted seeking to have the sentence reduced, the court may see fit to increase the sentence and this is a risk to which all such persons are exposed whether or not the Attorney General has appealed. Conversely, where an appeal is taken against sentence by the Attorney General seeking to have the sentence increased,

[Page 860]

the court may consider it fitting to reduce the sentence and is empowered so to order without any appeal having been asserted by the convicted person.

Whether an appeal is taken by the accused or at the instance of the Attorney General, it is characterized in the Criminal Code as an appeal “against the sentence” and in either event the only restriction upon the power of the court to vary the sentence is that contained in s. 614(1) (a) which provides in effect that the sentence can only be varied “within the limits prescribed by law for the offence of which the accused was convicted”.

It has been suggested that as the powers of s. 614(1)(a) and (b) are phrased in the alternative, the section does not permit a court to exercise its jurisdiction under both subsections in the same case and that it must choose whether it is to vary the sentence or dismiss the appeal. In the present case the court ordered that the appeal be dismissed “but that the sentence of twelve (12) years on the charge of rape should be varied to one of life imprisonment”. I take the view that in exercising its power to increase the sentence the Court of Appeal by implication dismissed the appellant’s appeal and that the portion of the formal judgment ordering that the appeal be dismissed was pure surplusage which in no way vitiates the order.

As I have indicated, I am of opinion that the Court of Appeal has power to increase a sentence when an appeal is taken in accordance with s. 603(1) by a person who has been convicted at trial and that this power is in no way dependant upon an appeal being asserted by the Attorney General under s. 605. I would accordingly answer the question of law upon which leave to appeal was granted in the affirmative.

I would accordingly dismiss this appeal.

BEETZ J. (dissenting)—After a rehearing of this appeal, I see no reason to alter the views I had previously expressed, [v. infra]

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BEETZ J. (dissenting) [after the first hearing]—I agree with Mr. Justice Pigeon as to the jurisdiction of this Court to hear this appeal. But I find myself in agreement with Mr. Justice Spence’s analysis and construction of s. 614 of the Criminal Code.

By virtue of s. 603(1)(b) and s. 605(1)(b), a person convicted by a trial court and the Attorney General may both, with leave of the Court of Appeal or a judge thereof, appeal the sentence passed by the trial court. The wording of s. 614 reflects both possibilities in a single enactment. However, such economy of words was not, in my view, meant to relieve the Attorney General from the need to seek leave and, such leave being granted, from actually appealing, merely because a convicted person avails himself of his right to try to have his sentence reduced. Nor does s. 614 give to the Court of Appeal jurisdiction to hear what amounts to an appeal as of right by the Crown where the Code explicitly provides against such a right and where no formal notice was given to the convicted person. Even if failure to observe formalities relating to application for leave, to the granting of leave and to notice may be remedied in time, it was not remedied in this case.

I would dispose of this appeal as is proposed by Mr. Justice Spence.

Appeal dismissed, LASKIN C.J. and SPENCE, DICKSON and BEETZ JJ. dissenting.

Solicitors for the appellant: Helson, Baines & Langdon, Halton Hills.

Solicitors for the respondent: Department of Justice (Ont.), Toronto.