Supreme Court of Canada
Miles v. R., [1977] 1 S.C.R. 195
Date: 1976-02-25
Robert Logan Miles Appellant;
and
Her Majesty The Queen Respondent.
1976: February 9; 1976: February 25.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Criminal law—Order of absolute discharge—Appeal by Crown—Jurisdiction of appellate Court to interfere with provincial judge’s order and to enter conviction and impose sentence—Criminal Code, R.S.C. 1970, c. C-34, ss. 605(1)(a), 614, 618(2)(a), 662.1(1), (3)(a) [enacted 1972, c. 13, s. 57].
The appellant, who pleaded guilty to a charge of assault causing bodily harm, was granted an absolute discharge by the Provincial Judge, pursuant to s. 662.1(1) of the Criminal Code. On appeal, the Appellate Division of the Supreme Court of Alberta quashed the order of absolute discharge, entered a conviction and imposed a fine of $200 with imprisonment for 30 days in default of payment. The appellant appealed to this Court, asserting he had an appeal as of right under s. 618(2)(a) because he was a person who had been acquitted of an indictable offence and whose acquittal had been set aside on appeal. His principal submission was that the Appellate Division was without jurisdiction to hear the Crown’s appeal because the effect of s. 662.1(3)(a) was to require the Crown, if it would appeal from an order of discharge, to found its appeal on s. 605(1)(a) and hence to be limited to a question of law alone.
Held: The appeal should be dismissed.
The appellant could come to this Court only by leave, pursuant to s. 41(1) of the Supreme Court Act. Leave was granted nunc pro tunc to enable the Court to consider the appellant’s principal submission.
The Appellate Division had jurisdiction to interfere with the order of the Provincial Judge and to enter a conviction and impose a penalty. The words in s. 662.1(3)(a) “in the case of an appeal by the Attorney General, [as if that direction were] a finding that the accused was not guilty” were necessary in order to
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enable the provincial appellate Court to enter a conviction upon setting aside an order of discharge and thereafter to impose a sentence pursuant to s. 614. In order to fit an appeal from a discharge into the scheme of appeals from sentence, which are predicated upon a conviction, it was necessary to give the appellate Court power to enter a conviction where it was disposed to allow an appeal from a discharge order and this was done by s. 662.1(3)(a). This provision cannot be regarded as giving a right of appeal on a different foundation than that for existing appeals against sentence so as to make it virtually impossible for the Crown to appeal a discharge order.
APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], quashing an order of absolute discharge, entering a conviction and imposing a penalty. Appeal dismissed.
A.M. Harradence, Q.C., for the appellant.
B.A. Crane and P. Chrumka, Q.C., for the respondent.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—The appellant in this case pleaded guilty to a charge of assault causing bodily harm. After making this finding the Provincial Judge declared that “I do not convict the accused, I find that it is in the interests of the accused and not contrary to the public interest to grant to the accused an absolute discharge pursuant to s. 662.1 of the Criminal Code.” The Provincial Judge, before making the order of absolute discharge, delineated the considerations which moved him to that determination. The Crown appealed to the Appellate Division of the Supreme Court of Alberta, coupling its assertion of an appeal de plano with an application for leave if it should be necessary. The Appellate Division quashed the order of absolute discharge, entered a conviction and imposed a fine of $200, with imprisonment for 30 days in default of payment.
The convicted appellant now appeals to this Court, asserting he has an appeal as of right under
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s. 618(2)(a) of the Criminal Code because he was a person who had been acquitted of an indictable offence and whose acquittal had been set aside on appeal. For the reasons that follow, it is my opinion that (1) the appellant can come to this Court only by leave, pursuant to s. 41(1) of the Supreme Court Act, R.S.C. 1970, c. S-19, as amended; (2) leave should be granted nunc pro tunc to enable this Court to consider the appellant’s principal submission, namely, that the Alberta Appellate Division was without jurisdiction to hear the Crown’s appeal to it from the order of absolute discharge; (3) the Alberta Appellate Division had jurisdiction to interfere with the order of the Provincial Judge and to enter a conviction and impose a penalty; and (4) I would dismiss the appeal to this Court from the decision of the Alberta Appellate Division.
By amendments to the Criminal Code made by 1972 (Can.), c. 13, s. 662.1 was enacted to provide for absolute or conditional discharges in certain circumstances and for appeals in such cases and, concurrently, the definition of “sentence” in s. 601 was amended to include “a disposition made under s. 662.1(1)…”. It will suffice for present purposes to set out the provisions of s. 662.1(1) and (3), and they are as follows:
662.1 (1) Where an accused, other than a corporation, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable, in the proceedings commenced against him, by imprisonment for fourteen years or for life or by death, the court before which he appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or upon the conditions prescribed in a probation order.
…
(3) Where a court directs under subsection (1) that an accused be discharged, the accused shall be deemed not to have been convicted of the offence to which he pleaded guilty or of which he was found guilty and to which the discharge relates except that
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(a) the accused or the Attorney General may appeal from the direction that the accused be discharged as if that direction were a conviction in respect of the offence to which the discharge relates or, in the case of an appeal by the Attorney General, a finding that the accused was not guilty of that offence; and
(b) the accused may plead autrefois convict in respect of any subsequent charge relating to the offence to which the discharge relates.
Were it not for s. 662.1(3)(a), it would be clear beyond peradventure that an appeal from an order of absolute or conditional discharge is an appeal against sentence, and hence governed, where the appeal is by the accused, by s. 603(1)(b) and s. 614; and, where the appeal is by the Crown, governed by s. 605(1)(b) and s. 614. Leave is required in either case from the Court of Appeal. Counsel for the appellant contends, however, that the effect of s. 662.1(3)(a) (and especially the words “in the case of an appeal by the Attorney General, [as if that direction were] a finding that the accused was not guilty”…) is to require the Crown, if it would appeal from an order of discharge, to found its appeal on s. 605(1)(a) and hence, to be limited to a question of law alone. In short, the contention is that the appeal is from an acquittal and this contention is also carried forward to support the appellant’s position that there is an appeal de plano to this Court under s. 618(2)(a).
The effective answer to this line of argument was given by counsel for the respondent who submitted, correctly in my opinion, that the quoted words of s. 662.1(3)(a) were necessary in order to enable the provincial appellate Court to enter a conviction upon setting aside an order of discharge and thereafter to impose a sentence pursuant to s. 614. The drafting in s. 662.1(3)(a) could have been clearer, but there is no doubt, when regard is had to the amended definition of sentence and to the distinction made between guilt and conviction in s. 662.1, that in order to fit an appeal from a discharge into the scheme of appeals from sentence, which are predicated upon a conviction, it was necessary to give the appellate Court power to
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enter a conviction where it was disposed to allow an appeal from a discharge order and this was done by s. 662.1(3)(a). I cannot agree that this provision is to be regarded as giving a right of appeal on a different foundation than that for existing appeals against sentence so as to make it virtually impossible for the Crown to appeal a discharge order.
In the present case, leave to appeal the discharge order was sought, and I take the Appellate Division’s decision to have been made by granting leave and concurrently disposing of the appeal on the merits. This is not a case in which leave to appeal to this Court pursuant to s. 41(1) should be given. I would therefore quash the appeal to this Court in so far as it was brought de plano, and dismiss it on the point on which leave was granted.
Appeal dismissed.
Solicitor for the appellant: A.M. Harradence, Calgary.
Solicitor for the respondent: Paul S. Chrumka, Calgary.