A-825-76
Albert Glen Johnston (Applicant)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Jackett C.J., Pratte and Urie
JJ.—Ottawa, January 21, 1977.
Judicial review — Motion by respondent to quash applica
tion for want of jurisdiction Whether prosecutor 'federal
board, commission or other tribunal" Whether action taken
to comply with s. 740(1) of Criminal Code involves a "deci-
sion" within the meaning of s. 28 — Whether such a decision
in this case would be of an administrative nature — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2 and 28(1) —
Criminal Code, R.S.C. 1970, c. C-34, ss. 236(1) and 740(1) —
Federal Court Rule 324.
The respondent claims that the Court has no jurisdiction
under section 28(1) to review a decision taken pursuant to
section 740(1) of the Criminal Code because a Crown Attorney
representing the Attorney General of Canada is not a "federal
board, commission or other tribunal", the action taken by him
did not involve a "decision" within the meaning of section 28 of
the Federal Court Act and, even if it did, the decision herein
was of a purely administrative nature.
Held, the application to quash the application for judicial
review is granted. It would seem that by virtue of the definition
of "federal board, commission or other tribunal" in section 2 of
the Federal Court Act and by virtue of section 28 of the
Interpretation Act a prosecutor in the Northwest Territories
could not be a "federal board, commission or other tribunal"
and that section 740(1) of the Criminal Code merely lays down
a procedural step and does not confer any discretionary powers.
In any event, even if the prosecutor comes within the ambit of
section 28 and has the power to make a decision under section
740(1) of the Criminal Code, that decision is an administrative
one, not required to be made on a judicial or quasi-judicial
basis and is therefore excluded from review by section 28.
Wiseman v. Borneman [1969] 3 W.L.R. 706 and Smythe
v. The Queen [1971] S.C.R. 680, applied.
MOTION in writing under Rule 324.
COUNSEL:
Peter Ayotte for applicant.
S. M. Froomkin, Q. C., for respondent.
SOLICITORS:
Ayotte, Cooper, Geldreich, Johnson & Stefu-
ra, Yellowknife, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a Rule 324' motion in
writing to quash a section 28 application. The
motion was made by the respondent and counsel
for the applicant has indicated, by the letter con
taining his representations against the motion, that
he has no objection to the motion to quash being
disposed of without personal appearance of
counsel. 2
On November 29, 1976, the section 28 applica
tion was filed seeking an order under section 28 of
the Federal Court Act 3 setting aside "the decision
of the Attorney General of Canada, as represented
' Rule 324 reads as follows:
Rule 324. (1) A motion on behalf of any party may, if the
party, by letter addressed to the Registry, so requests, and if
the Court or a prothonotary, as the case may be, considers it
expedient, be disposed of without personal appearance of that
party or an attorney or solicitor on his behalf and upon
consideration of such representations as are submitted in
writing on his behalf or of a consent executed by each other
party.
(2) A copy of the request to have the motion considered
without personal appearance and a copy of the written
representations shall be served on each opposing party with
the copy of the notice of motion that is served on him.
(3) A party who opposes a motion under paragraph (1)
may send representations in writing to the Registry and to
each other party or he may file an application in writing for
an oral hearing and send a copy thereof to the other side.
(4) No motion under paragraph (I) shall be disposed of
until the Court is satisfied that all interested parties have had
a reasonable opportunity to make representations either in
writing or orally.
2 See the first paragraph of the letter of December 31, 1976,
from the applicant's solicitors to the Administrator of the
Court.
3 Section 28 (1) of the Federal Court Act reads as follows:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
by the Crown Attorney in and for the Northwest
Territories ... to seek a greater punishment
against the applicant by reason of a previous con
viction pursuant to the terms of sections 236(1)(d)
and 740(1) of the Criminal Code ...."
On December 9, 1976, the respondent made this
motion to quash that section 28 application on the
grounds that this Court has no jurisdiction to
entertain it.
By virtue of section 28(1) of the Federal Court
Act, this Court has jurisdiction to set aside a
"decision"' of a "federal board, commission or
tribunal" but there is specifically excepted from
that jurisdiction any jurisdiction to set aside "a
decision ... of an administrative nature not
required by law to be made on a judicial or
quasi-judicial basis".
In this case the subject matter of the section 28
application that is the object of the motion to
quash is described as "the decision of the Attorney
General of Canada, as represented by the Crown
Attorney in and for the Northwest Territories
... to seek a greater punishment against the appli
cant by reason of a previous conviction pursuant to
the terms of sections 236(1)(d) and 740(1) of the
Criminal Code ...". Section 740(1) of the Crimi
nal Code reads as follows:
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
° The jurisdiction also extends to an "order" but there is no
suggestion that that aspect of the jurisdiction applies in this
matter.
740. (1) Where a defendant is convicted of an offence for
which a greater punishment may be imposed by reason of
previous convictions, no greater punishment shall be imposed
upon him by reason thereof unless the prosecutor satisfies the
summary conviction court that the defendant, before making
his plea, was notified that a greater punishment would be
sought by reason thereof.
Section 236(1) 5 creates an offence "for which a
greater punishment may be imposed by reason of
previous convictions".
In considering the question whether this section
28 application should be quashed on the ground
that section 28 does not operate to give the Court
jurisdiction in the matter, three questions are obvi
ous, viz:
(a) Is the "prosecutor" a "federal board, com
mission or other tribunal"?
(b) Does action taken to comply with section
740(1) of the Criminal Code involve a "deci-
sion" within section 28(1) of the Federal Court
Act? and
(c) Assuming that the answer to (b) is in the
affirmative, is the "decision" a "decision ... of
an administrative nature not required by law to
be made on a judicial or quasi-judicial basis"?
With reference to the first of these questions, for
5 Section 236(1) reads:
236. (1) Every one who drives a motor vehicle or has the
care or control of a motor vehicle, whether it is in motion or
not, having consumed alcohol in such a quantity that the
proportion thereof in his blood exceeds 80 milligrams of
alcohol in 100 millilitres of blood, is guilty of an indictable
offence or an offence punishable on summary conviction and
is liable
(a) for a first offence, to a fine of not more than two
thousand dollars and not less than fifty dollars or to
imprisonment for six months or to both;
(b) for a second offence, to imprisonment for not more
than one year and not less than fourteen days; and
(c) for each subsequent offence, to imprisonment for not
more than two years and not less than three months.
the purpose of the Federal Court Act, "federal
board, commission or other tribunal" is so defined,
by section 2 6 thereof, as to exclude therefrom "any
person ... appointed under or in accordance with a
law of a province ...". If therefore, the question
had arisen in one of the ten provinces of Canada, I
should have thought that one could take judicial
notice of the fact that the "prosecutor" did not fall
within this statutory definition of "federal board,
commission or other tribunal". Having regard to
the fact that, by virtue of section 28 of the Inter
pretation Act, the word "province" in a federal
statute is to be read as including the Northwest
Territories, I should have thought that the same
question would have to be considered in a case
arising in those Territories. However, as it seems
to me, there are not enough facts on the record as
yet for a decision to be made with regard thereto.
On the second of such questions, as it seems to
me, all that section 740(1) does is lay down a
procedural step as a condition precedent for the
imposition of a higher penalty imposed by Parlia
ment for offences after the first one. I doubt that it
was intended to confer a discretion or a power to
decide. However, the point is one that need not, in
my view, be decided in this case, having regard to
my conclusion on the third question.
Assuming that the "prosecutor" has authority to
decide, under section 740(1) of the Criminal Code,
whether a subsequent offence shall be prosecuted
as such (as opposed to a duty to serve a notice as
contemplated by section 740(1) in every case
where there has been, to his knowledge, a prior
offence), and assuming that a decision made pur
suant to such authority under section 740(1) is a
"decision" under section 28(1) of the Federal
Court Act, in my opinion such a decision is a
decision that does not fall within section 28(1) of
the Federal Court Act because it is "a deci
sion ... of an administrative nature not required
6 The relevant portion of section 2 reads:
"federal board, commission or other tribunal" means any
body or any person or persons having, exercising or pur
porting to exercise jurisdiction or powers conferred by or
under an Act of the Parliament of Canada, other than any
such body constituted or established by or under a law of a
province or any such person or persons appointed under or
in accordance with a law of a province or under section 96
of The British North America Act, 1867;
by law to be made on a judicial or quasi-judicial
basis".
It would seem clear to me that, assuming it is a
"decision", such a decision is of an "administrative
nature". It is certainly not legislative or judicial in
nature. Assuming that it is a "decision", it is of the
same character as the "decision" of a prosecutor,
after having examined the available evidence, as to
whether or not there is a case that warrants
launching a prosecution. The Attorney General or
other prosecutor has a function as part of the
administrative or executive branch of government
to see that cases warranting prosecution are
brought before the judicial branch.
Furthermore, as I read the authorities, such a
decision is not a decision that is "required by law
to be made on a judicial or quasi-judicial basis".
The only possible basis that occurs to me for so
regarding it is that there is an implied requirement
to hear the accused before taking the authorized
action. From this point of view I can see no
difference between a prosecutor's decision to
prosecute and his "decision" (always assuming
there is authority therefor) to prosecute a subse
quent offence as being a subsequent and not a first
offence. With regard to a decision to prosecute, the
law would seem to be correctly stated as follows:
"Every public officer who has to decide whether to
prosecute ... ought first to decide whether there is
a prima facie case, but no one supposes that
justice requires that he should first seek the com
ments of the accused ... on the material before
him."' There is an even closer parallel between the
requirement of section 740(1) (if it involves the
implied power of decision underlying this applica
tion) and the power so often found to proceed by
indictment instead of summary conviction with a
resultant possibility of stiffer penalty provisions
applying. However, such a power is not subject to
any implied requirement of a prior hearing where
the proposed accused is entitled to be heard. See
7 See Wiseman v. Borneman [1969] 3 W.L.R. 706, per Lord
Reid at 710. Compare Furnell v. Whangarei High Schools
Board [1973] A.C. 660, per Lord Morris, at page 681.
Smythe v. The Queen. 8 In that case the provision
in question was section 132(2) of the Income Tax
Act, which reads:
132. (2) Every person who is charged with an offence
described by subsection (1) may, at the election of the Attorney
General of Canada, be prosecuted upon indictment and, if
convicted, is, in addition to any penalty otherwise provided,
liable to imprisonment for a term not exceeding 5 years and not
less than 2 months.
and one of the attacks made on it was
(iii) In the further alternative, the section violates s. 2(e) of
the Canadian Bill of Rights in that the Attorney General can
decide in advance without any hearing at all, much less a fair
hearing, that the sentence must be at least two months if the
accused is convicted and this at a time when the Minister of
Justice can at the highest only have prima facie evidence before
him.
See the judgment of the Supreme Court of Canada
delivered by Fauteux C.J.C. at pages 684-5. This
attack was disposed of as follows:
In these views, I find it unnecessary to say more with respect
to the appellant's two alternative submissions, than that I am
unable to find any substance in either. Suffice it to say that
prima facie evidence tendered in an ex parte application before
a justice of the peace is sufficient to permit him to compel,
either by summons or warrant, the appearance before the court
of the person charged and that prima facie evidence may also
permit a justice of the peace to commit the person charged for
trial at the end of the preliminary inquiry. To invite a person to
be charged to make representations to the Attorney General
before an information is laid before a justice of the peace
would, in many cases and surely in most of the important ones,
be tantamount to an invitation to that person to abscond. The
following comments made by Kerwin J., as he then was, in
Dallman v. The King [1942] S.C.R. 339, 77 C.C.C. 289,
[1942] 3 D.L.R. 145, at the bottom of page 344, are here
relevant:
However, the gist of this ground of appeal is that the
appellant is the only one entitled to exercise the option as to
the mode of trial. It would be strange if that were so as it
would mean that a person against whom it was decided to
prefer charges would first have to be found in order to
ascertain his wishes in that regard; and we are clearly of
opinion that this contention cannot prevail.
See page 688 of the decision.
8 [19711 S.C.R. 680.
In my view, the application to quash should be
granted.
* * *
PRATTE J.: I agree.
* * *
URIE J.: I concur.
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