T-3848-79
Peter John Cohoe (Plaintiff)
v.
The Queen and the Minister of Communications
(Defendants)
Trial Division, Mahoney J.—Toronto, February
23; Ottawa, February 24, 1982.
Radio — Plaintiff pleaded guilty to an offence under the
Radio Act and was discharged conditionally — Radio Act
provides for forfeiture of radio apparatus upon conviction of
an offence — Interpretation Act provides that the provisions of
the Criminal Code relating to summary conviction offences
apply to other than indictable offences created by enactment
— Criminal Code provides that where a person is discharged,
he shall be deemed not to have been convicted — Plaintiff was
not convicted of an offence — Radio Act, R.S.C. 1970, c. R-1,
s. 11 — Interpretation Act, R.S.C. 1970, c. 1-23, s. 27(2)
Criminal Code, R.S.C. 1970, c. C-34, s. 662.1(1),(3).
Lew v. Minister of Manpower and Immigration [1974] 2
F.C. 700, applied.
ACTION.
COUNSEL:
R. J. Upsdell for plaintiff.
M. Thomas for defendants.
SOLICITORS:
Gunn, Upsdell, Dick & Eitel, St. Thomas, for
plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: Notwithstanding that other relief
is sought in the statement of claim, the parties
indicated, at the trial, that the only issue they wish
the Court to determine is whether or not, in the
circumstances, the plaintiff was convicted of an
offence supporting the forfeiture of certain radio
equipment to Her Majesty by order of the defend
ant Minister under subsection 11(1) of the Radio
Act.' The plaintiff pleaded guilty to an offence
under the Radio Act and, on February 16, 1979,
was discharged conditionally. The time prescribed
R.S.C. 1970, c. R-1.
for his observation of those conditions has since
elapsed.
The Radio Act provides:
11. (1) Any person who establishes a radio station or
installs, operates or has in his possession a radio apparatus in
violation of this Act is liable on summary conviction to a fine
not exceeding twenty-five hundred dollars or to imprisonment
for a term not exceeding twelve months, and in the case of any
conviction under this section the radio apparatus to which the
offence relates may be forfeited to Her Majesty by order of the
Minister for such disposition as the Minister may direct.
and the Interpretation Act e provides:
27....
(2) All the provisions of the Criminal Code relating to
indictable offences apply to indictable offences created by an
enactment, and all the provisions of the Criminal Code relating
to summary conviction offences apply to all other offences
created by an enactment, except to the extent that the enact
ment otherwise provides.
The Radio Act is, by definition, an enactment. It
contains no provision excepting the full application
of the Criminal Code, 3 which provides:
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, 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 .... [The emphasis is mine.]
None of the exceptions provided by subsection
662.1(3) are in play.
The validity of the plaintiffs position is so clear
as to defy exposition; however, if authority is
required, the decision of the Federal Court of
2 R.S.C. 1970, c. I-23.
3 R.S.C. 1970, c. C-34, as amended by S.C. 1972, c. 13 and
S.C. 1974-75-76, c. 93 and c. 105.
Appeal in Lew v. Minister of Manpower and
Immigration 4 would appear directly on point.
Costs were not spoken to. Under Rule 344(1),
they should follow the event. If the award of costs
to the plaintiff is contrary to any arrangement the
parties have made, the defendants may apply
under Rules 324 and 344(7).
4 [1974] 2 F.C. 700.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.