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Supreme Court of Canada

Criminal law—Possession of housebreaking instruments—Failure of counsel to appear before Court of Appeal—Appeal dismissed—Court of Appeal rescinded its judgment—Administration of justice—Criminal Code, 1953-54 (Can.), c. 51, s. 295(1).

The respondent was found guilty by a judge of the Court of Sessions of the Peace of possession of housebreaking instruments, and appealed to the Court of Queen’s Bench. On the day of the hearing his counsel failed to appear. Thereupon, the Crown requested and was granted dismissal of the appeal. A few weeks later, on a motion explaining counsel’s default, the Court of Appeal, constituted differently, rescinded its judgment dismissing the appeal. The Crown was granted leave to appeal to this Court.

Held: The appeal should be dismissed.

The two judgments were given by the Court of Appeal in the exercise of the discretionary power relating to practice concerning the proper administration of justice in criminal matters. The Court accepted the explanations offered by the respondent’s counsel and held that the latter was not to suffer the loss of his right to appeal on account of the oversight of his counsel’s secretary. It was virtually held and correctly so that the remedy sought by the respondent was due him ex debito justitiae.

APPEAL by the Crown from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec, rescinding its own previous judgment. Appeal dismissed.

Claude Chamberland, for the appellant.

F.D. Shoofey, for the respondent.

The judgment of the Court was delivered by

[Page 93]

THE CHIEF JUSTICE—The appellant appeals from a unanimous decision, delivered on April 18, 1969, by the Court of Queen’s Bench (Appeal Side), Province of Quebec, rescinding, at the request of the respondent, a unanimous decision delivered by the same Court, on March 24 preceding.

The circumstances giving rise to this appeal may be stated immediately.

On October 31, 1968, the respondent, Joseph Jacobs, was found guilty by a judge of the Court of Sessions of the Peace of having, in Montreal on or about July 8, 1968, committed the offence described in s. 295(1) of the Criminal Code, namely possession of housebreaking instruments.

The respondent entered an appeal to the Court of Queen’s Bench (Appeal Side) against this conviction. This appeal came up for hearing on March 24, 1969. Counsel for Jacobs, then duly called upon to proceed with his case, failed to appear. Thereupon, in view of this default, counsel for the Crown requested and was granted dismissal of the appeal by the Court, then composed of Hyde, Rivard and Salvas JJ.

Jacob’s counsel, who was informed of this decision the same day it was handed down, immediately went to one of the judges of the Court of Appeal, and, in the presence of the Crown counsel, gave reasons to justify or excuse his absence, all with a view to having the case put back on the list of appeal cases. The Crown counsel did not agree in any manner to this request by respondent’s counsel, but a few days later, on April 1, 1969, the latter served his opponent with a motion returnable to the Court of Queen’s Bench on April 3, 1969, to obtain rescission of the decision given the previous March 24. After taking the matter under advisement, the Court of Appeal, then composed of Tremblay C.J. and Rinfret and Taschereau JJ., gave judgment on April 18 following, granting respondent’s motion.

[Page 94]

The Crown then applied to this Court for leave to appeal from this judgment. Respondent Jacobs opposed the motion for leave: he contended that the Supreme Court did not have jurisdiction, in the matter, to grant leave to appeal. Without prejudice to this objection, the Court granted the Crown’s motion, and left it to the Court that would be hearing it to decide whether it was well founded.

Neither the judgment of April 18, 1969, rescinding that of March 24, nor in fact the latter judgment, deal in any way with the merits of the appeal lodged by Jacobs against the conviction pronounced against him. These are judgments given by the Court of Appeal in the exercise of the discretionary power relating to practice concerning the proper administration of justice in criminal matters. In this case the Court of Appeal, which pronounced the judgment a quo, accepted the explanations offered by Jacobs’ counsel, and held that the latter was not to suffer the loss of his right to appeal on account of the oversight of his counsel’s secretary, who failed to inform the latter, as she ought to have done, of the date on which the case would be called for hearing. It was virtually held—and correctly so, in my humble opinion—that the remedy sought by Jacobs was due him ex debito justitiae.

This being the case, there is no need to consider the objection raised by the respondent as regards the jurisdiction of this Court. I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: C. Chamberland, Montreal.

Solicitor for the respondent: F.D. Shoofey, Montreal.

 

 

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