James Puskas Appellant,
Respondent on the Application
Her Majesty The Queen Respondent,
Applicant on the Application
Delbert Ross Chatwell Appellant,
Respondent on the Application
Her Majesty The Queen Respondent,
Applicant on the Application
Indexed as: R. v. Puskas
File Nos.: 26373, 26492.
Hearing and judgment: May 4, 1998.
Reasons delivered: June 18, 1998.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
applications before the supreme court of canada
Courts ‑‑ Procedure ‑‑ Appeal as of right ‑‑ Procedure giving rise to appeal as of right existing before appeal as of right abolished ‑‑ Conditions precedent to appeal as of right met only after appeal as of right abolished ‑‑ Whether appeals should be quashed ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 691(2).
Applications to quash two appeals, purportedly brought as of right, were based on the recent changes to s. 691(2) of the Criminal Code (effective May 14, 1997) which eliminated an appeal as of right if an acquittal or its equivalent were overturned by a court of appeal and a new trial ordered. Both appellants (respondents on the applications) had either been acquitted or received a stay tantamount to an acquittal before May 14, 1997. The Court of Appeal overturned these verdicts and ordered new trials after the new provision had come into force. At issue is whether the applications to quash the appeals should be allowed on the ground that the right has been eliminated.
Held: The applications should be granted.
Since no authority was specifically applicable, the Court determined the matter on the basis of statutory interpretation and principle. The ability to appeal as of right to this Court is only “acquired,” “accrued” or “accruing” upon the court of appeal’s rendering judgment. A right cannot accrue, be acquired, or be accruing until all conditions precedent to the exercise of the right have been fulfilled. Since all conditions precedent existing under the former s. 691(2) had not been fulfilled, the Interpretation Act did not exclude the cases at bar from the operation of s. 44 of this Act which provides that every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment. The old proceedings therefore should be continued under the new enactment. The appeals were quashed because the new enactment does not grant an appeal as of right.
Counsel for the accused requested, at the hearing of these motions, and were granted an extension of time for filing an application for leave.
Considered: Singer v. The King,  S.C.R. 70; Kootenay & Elk Railway Co. v. Canadian Pacific Railway Co.,  S.C.R. 600; distinguished: Boyer v. The King,  S.C.R. 89; Marcotte v. The King,  S.C.R. 352; referred to: R. v. Kalanj,  1 S.C.R. 1594; Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd.,  S.C.R. 1038; Williams v. Irvine (1893), 22 S.C.R. 108; Cowen v. Evans (1893), 22 S.C.R. 331; Mitchell v. Trenholme (1893), 22 S.C.R. 333; Doran v. Jewell (1914), 49 S.C.R. 88; Hyde v. Lindsay (1898), 29 S.C.R. 99; Hurtubise v. Desmarteau (1891), 19 S.C.R. 562; Scott v. College of Physicians and Surgeons of Saskatchewan (1992), 95 D.L.R. (4th) 706.
Statutes and Regulations Cited
Act to Amend the Supreme Court Act, S.C. 1949, c. 37, s. 3.
Criminal Code, R.S.C., 1985, c. C‑46, s. 691(2) [as am. by Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 99].
APPLICATION to quash appeal (R. v. Puskas, File No. 26373) purportedly brought as of right from judgment of the Ontario Court of Appeal (1997), 36 O.R. (3d) 474, 120 C.C.C. (3d) 548, 104 O.A.C. 310,  O.J. No. 4665 (QL), allowing an appeal from an acquittal by Marshall J. Application granted.
APPLICATION to quash appeal (R. v. Chatwell, File No. 26492) purportedly brought as of right from judgment of the Ontario Court of Appeal (1998), 122 C.C.C. (3d) 162, 106 O.A.C. 226,  O.J. No. 206 (QL), allowing an appeal from stay of proceedings entered by Salhany J. Application granted.
Robert Frater, for the respondent, applicant on the application to quash in R. v. Puskas.
Jennifer Woollcombe, for the respondent, applicant on the application to quash in R. v. Chatwell.
James Lockyer, for the appellants, respondents on the applications to quash.
//The Chief Justice//
The judgment of the Court was delivered by
1 The Chief Justice -- Before the Court are motions to quash two appeals, purported to be brought as of right from the Ontario Court of Appeal. Both motions are based on the recent changes to s. 691(2) of the Criminal Code, R.S.C., 1985, c. C-46, enacted by s. 99 of the Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, and proclaimed, May 14, 1997, in SI/97-62. These changes eliminated the right of a criminal accused to appeal to this Court without obtaining leave if his or her acquittal (or a stay of proceedings, which is tantamount to an acquittal — R. v. Kalanj,  1 S.C.R. 1594) was overturned by a Court of Appeal, and a new trial was ordered.
2 While it is unnecessary, for the purpose of this motion, to get into the substantive merits of either case, it is useful to set out their procedural histories, keeping in mind that the relevant date for the change to the legislation is the date on which it came into force: May 14, 1997. On February 15, 1994, Mr. Chatwell was charged with one count of sexual interference and one count of sexual assault. On January 10, 1997, Salhany J. of the Ontario Court (General Division) ordered a stay of proceedings because of unreasonable delay. On February 4, 1997, the Attorney General for Ontario filed a Notice of Appeal to the Ontario Court of Appeal from the decision of Salhany J. The appeal was heard by a panel of that Court on January 16, 1998, and judgment was reserved. On January 22, the Court of Appeal released its unanimous judgment. The Crown’s appeal was allowed, the stay was lifted, and the matter was remitted for trial.
3 The history of Mr. Puskas’ case is similar. On September 9, 1995, he was charged with two narcotics offences. On February 17, 1997, he was acquitted on both charges. On March 11, 1997, the Attorney General of Canada filed a Notice of Appeal. That appeal was heard on October 30, 1997, and on November 19, 1997, a panel of the Ontario Court of Appeal set aside the acquittal and ordered a new trial.
4 Under the former s. 691(2) of the Code, both Mr. Puskas and Mr. Chatwell clearly would have been entitled to appeal to this Court “as of right” (that is, without having to obtain leave). Mr. Puskas and Mr. Chatwell both filed Notices of Appeal as of right in this Court in reliance of the previous provision of the Code. In turn, the Attorney General of Canada sought to quash the Puskas appeal and the Attorney General for Ontario sought to quash the Chatwell appeal on the grounds that, under the amended section, that right has been eliminated. We granted both motions and quashed the appeals from the bench, with reasons to follow.
5 Our conclusion is based largely on s. 44 of the federal Interpretation Act, R.S.C., 1985, c. I-21. That section states in part:
44. Where an enactment, in this section called the “former enactment”, is repealed and another enactment, in this section called the “new enactment”, is substituted therefor,
. . .
(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;
(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto
. . .
(ii) in the enforcement of rights, existing or accruing under the former enactment, and
(iii) in a proceeding in relation to matters that have happened before the repeal. . . .
Subsection (c) is particularly instructive in this instance. Subsection (c) as it may be applied to the cases at bar suggests that a proceeding which was taken under the Code as it stood before May 14, 1997 should be “taken up and continued under and in conformity with” the Code as amended, upon the coming into force of that amendment. In other words, proceedings that commenced before the amendment was made should generally continue in accordance with the amendment.
6 Of course, s. 44 cannot be read in isolation from the other provisions of the Interpretation Act. In particular, the appellants (respondents to the motion) argue that s. 43(c) of the Act operates to protect their appeals as of right. That section states:
43. Where an enactment is repealed in whole or in part, the repeal does not
. . .
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed . . . .
Hence, the question that must be answered before s. 44 of the Interpretation Act can be applied is whether the ability to appeal to this Court without obtaining leave is a “right” or “privilege” which was “acquired, accrued [or] accruing” by the appellants under the former s. 691(2) of the Code. There is no question that the possibility of an appeal is a substantive right, not merely a question of procedure (see Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd.,  S.C.R. 1038, at p. 1040). The real question is whether the appellant’s right to appeal to this Court without leave was “acquired, accrued [or] accruing” before May 14, 1997.
7 There is a considerable amount of competing jurisprudence from this Court on precisely when appeal rights vest in litigants. Although there are numerous possibilities, the majority of the case law takes one of two positions. Some decisions say that a right to appeal vests as soon as the action is commenced or the charge is laid. Other decisions have held that it does not vest until the judgment appealed from is rendered by the court below. However, a careful review and consideration of the case law strongly suggests that there is no authority which specifically governs the cases at bar, and therefore we must look to principle, as well as precedent, for the correct answer.
8 The earliest cases of this Court were often divided, and occasionally contradict one another. In Williams v. Irvine (1893), 22 S.C.R. 108; Cowen v. Evans (1893), 22 S.C.R. 331; Mitchell v. Trenholme (1893), 22 S.C.R. 333; Doran v. Jewell (1914), 49 S.C.R. 88, and Hyde v. Lindsay (1898), 29 S.C.R. 99, the majority of the Court held that new rights of appeal do not apply to cases which have already been commenced. However, it should be noted that Taschereau and Gwynne JJ. never accepted this position, and either dissented (as in Williams, Cowen, or Mitchell), or commented that they were only agreeing because of previous authority (Hyde). They both took the position that new rights of appeal applied to any case where the amendment was made before the court appealed from rendered its judgment. This was also the view taken by Ritchie C.J. (for a majority) in Hurtubise v. Desmarteau (1891), 19 S.C.R. 562.
9 The question of the time at which appeal rights vest in litigants was before the Court again in Singer v. The King,  S.C.R. 70. Singer arose out of the enactment of a Criminal Code appeal as of right to this Court (in that case, it was for a person who had been convicted and had such conviction upheld by a court of appeal, and who had been tried jointly with a person who had been acquitted). Singer had been convicted and his conviction was upheld by a court of appeal before the section allowing an appeal was enacted. This Court held that, because there was no statutory right to appeal at the time the accused was charged, no appeal as of right lay. Subsequently, Rinfret C.J. (in chambers) heavily relied on Singer in Boyer v. The King,  S.C.R. 89. In that decision, the Chief Justice held that no appeal lay to the Supreme Court under an amendment to the Code which was enacted after the accused was charged and convicted, but before the Court of Appeal released its judgment upholding the conviction. Relying on Rinfret C.J.’s decision, the full Court came to the same conclusion in Marcotte v. The King,  S.C.R. 352, which dealt with the same amendment.
10 The appellant relies quite heavily on this entire line of jurisprudence for the proposition that appeal rights crystallize at the time at which the action is commenced (or the accused is charged). In our view, these cases do not govern the case at bar, for a number of reasons. First and foremost, they are almost all about the creation of new appeal rights. When appeal rights are being created, there is a risk that cases that had appeared to be finally decided (i.e., all routes of appeal had been exhausted) will be “revived” by the new rights of appeal. In Singer, the Court of Appeal’s decision had already been rendered at the time the new appeal right was proclaimed. In other words, the case was already out of the system. Hence, the only ratio that can truly be deduced from Singer is that the Court should not construe new appeal rights so as to revive cases which had been conclusively determined under the former system. Any discussion of the appropriate date for the crystallization of appeal rights would therefore be obiter dicta.
11 Although the same situation did not exist in Boyer, Rinfret C.J. appeared to believe that he was bound by Singer. In Marcotte, the full panel of the Court simply followed the Chief Justice’s reasoning from the year before. However, the amendment to the Code which is before the Court on these motions is not about an expansion of appeal rights and, as a result, the Court does not need to concern itself with the possibility of reviving cases that have already been conclusively determined. The circumstances presented in these motions are entirely different.
12 Although these different circumstances, in and of themselves, ought to be sufficient to distinguish Boyer and Marcotte, there is another important consideration. In 1949, appeals from Canadian cases to the Judicial Committee of the Privy Council were abolished (through s. 3 of An Act to amend the Supreme Court Act, S.C. 1949, c. 37). Although the legislation did not specifically say so, appeals were still permitted for all cases which were in the system at the time of the amendment. This may suggest that the same rule should be adopted for the Criminal Code amendment at issue in these motions. However, in both the Boyer line of cases and the Privy Council appeals, the legal question was the jurisdiction of the court to hear the appeal. In the cases at bar, no changes have been made to the Court’s jurisdiction. What has been changed is the mechanism whereby the appeals reach this Court. While they used to be heard “as of right,” they now will only be heard with leave. Simply put, the road has not been shortened (as it was when Privy Council appeals were abolished) or lengthened (as in Boyer or Marcotte). It has merely been narrowed. Even if the jurisdiction of the Court was said to have crystallized upon the charges being laid, this does not preclude Parliament from changing the mechanism by which appeals reach this Court, even for cases already in the justice system.
13 Finally, as the Attorney General for Ontario (applicant in the Chatwell motion) points out, there are some more recent cases which stray from the principle set down in Boyer and Marcotte, albeit in obiter dicta. In particular, in Kootenay & Elk Railway Co. v. Canadian Pacific Railway Co.,  S.C.R. 600, the Canadian Transport Commission and the Immigration Appeal Board had handed down judgment on May 13, 1971, and January 7, 1971, respectively. The appellants filed notices of appeal to this Court. On June 1, 1971, the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), came into force, which gave a right of appeal to the Federal Court, and precluded any other right to appeal. Fauteux C.J., for the Court, held that the Supreme Court could still hear the appeals, stating at p. 601:
We are all of the opinion that the decision which is the subject matter of the motion for leave made in each case, having been made prior to the coming into force of the Federal Court Act, this Court has jurisdiction to entertain each of these motions [for leave].
This passage strongly suggests that the appropriate time for the determination of appeal rights is the time at which the judgment sought to be appealed from is rendered. However, it should be noted that, as in Singer, there was no legislative change between the commencement of the action and the delivery of the judgment. Hence, this decision cannot be taken as conclusively refuting the principle from Boyer and Marcotte, although it clearly casts doubt upon the strength of these authorities.
14 Since the usefulness of the jurisprudence is limited, it falls to the Court to determine the matter on the basis of statutory interpretation and principle. In our view, there are numerous reasons for deciding that the ability to appeal as of right to this Court is only “acquired,” “accrued” or “accruing” when the court of appeal renders its judgment. The first is a common-sense understanding of what it means to “acquire” a right or have it “accrue” to you. A right can only be said to have been “acquired” when the right-holder can actually exercise it. The term “accrue” is simply a passive way of stating the same concept (a person “acquires” a right; a right “accrues” to a person). Similarly, something can only be said to be “accruing” if its eventual accrual is certain, and not conditional on future events (Scott v. College of Physicians and Surgeons of Saskatchewan (1992), 95 D.L.R. (4th) 706 (Sask. C.A.), at p. 719). In other words, a right cannot accrue, be acquired, or be accruing until all conditions precedent to the exercise of the right have been fulfilled.
15 Under the former s. 691(2) of the Code, there were a number of conditions precedent to the acquisition of the right to appeal to this Court without leave. The first is that the accused is charged with an indictable offence. The second is that he is acquitted of that offence at trial. The third is that the acquittal must be reversed by the Court of Appeal, and the fourth is that the Court of Appeal order a new trial. Until those events occur, the accused does not acquire the right to appeal to this Court without leave, nor does it accrue, nor is it accruing to him or her. As a result, s. 43 of the Interpretation Act does not exclude the cases at bar from the operation of s. 44, which indicates that the old proceeding should be continued under the new enactment. Since the new enactment does not grant an appeal as of right, the appeals must be quashed.
16 Since the time for an application for leave has long since expired, at the hearing of these motions, counsel for Mr. Chatwell and Mr. Puskas requested that they be granted an extension of time for filing an application for leave. We granted this extension, and they shall have 60 days to file applications for leave to appeal from the date of the hearing, as agreed to by counsel for the Crown.
Solicitor for the respondent, applicant on the applications to quash: The Attorney General of Canada, Ottawa.
Solicitors for the appellants, respondents on the applications to quash: Pinkofsky, Lockyer, Toronto.