Supreme Court of Canada

Ritcey et al. v. The Queen, [1980] 1 S.C.R. 1077

Date: 1980-01-29

Henry Murray Ritcey, Harvey Ernest Rafuse, John Leonard Rafuse, Melbourne Elijah Kaizer and Mervyn Rhyndress Appellants;

and

Her Majesty The Queen Respondent.

1979: November 26, 27, 28; 1980: January 29.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Chouinard JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION

Constitutional law—Jurisdiction of judges—Criminal Code cases—Action by County Court Judge after his retirement—County Court Act, R.S.N.S. 1967, c. 64—Judicature Act, 1972 (N.S.), c. 2—British North America Act, s. 91(27), 92(14)—Criminal Code, R.S.C. 1970, c. C‑34, ss. 482(c), 488, 489, 499(1), 747(c), 748.

The case arose out of the Crown’s application for orders of certiorari to quash various acquittals and sentences pronounced by a County Court Judge after the date of his resignation from judicial office as a result of deteriorating health. The judge had heard a number of cases in respect of which no decision had been rendered prior to the acceptance of his resignation by the Governor General in Council on February 2, 1978. The Chief Justice of the Trial Division granted the ex parte application by the Crown quashing some fourteen decisions. The Appeal Division dismissed the appeal and held the decisions properly quashed as being made without jurisdiction and accordingly nullities. The further appeal related to only five of the cases, four of which are concerned with the disposition made by the judge after “hearing an appeal from a summary conviction” and the Rhyndress case in which the judge had neither tried nor heard the case when he called witnesses and took evidence in respect of sentence.

Held: The appeals of Ritcey, H.E. Rafuse, J.L. Rafuse and Kaizer should be allowed and that of Rhyndress dismissed.

The issue should be determined in accordance with the answer given to the constitutional question stated by order of the Chief Justice “If Section 33(1) of the Judicature Act, Statutes of Nova Scotia, 1972, Chapter 2, as amended—which authorizes a Judge who has resigned his office to give at any time within eight weeks after his resignation Judgment or grant an Order in any

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proceeding previously tried or heard by him, as if he had continued in office—applies to a County Court Judge trying an indictable offence without a jury under Part XVI of the Criminal Code and to a County Court Judge hearing an Appeal from a summary conviction and an Appeal against sentence in a summary conviction matter under Sections 747(c) and 748 of the Criminal Code, then is such provision ultra vires the legislature of the Province of Nova Scotia or inoperative to the extent that it so applies?”

The question involves the constitution, maintenance and organization of the county courts of Nova Scotia and the authority to make laws in relation to the constitution of provincial courts is vested exclusively in the provincial legislature under s. 92(14). In so far as the Criminal Code assigns any functions to county courts or their judges, this is to be taken as referring to such courts or judges as constituted by the provincial legislature. Applying Di Iorio and Fontaine v. The Warden of the Common Jail of the City of Montreal and Brunet, [1978] 1 S.C.R. 152, per Dickson J. at pp. 208-210, in determining the nature of the jurisdiction assigned to county court judges in Nova Scotia, it is clear that the statutes were validly enacted by the provincial legislature for the administration of justice in the province and that, at least for summary conviction appeals, gave such judges the authority to render judgments for eight weeks after their retirement in respect of cases previously heard by them. The judges’ extended authority described in s. 33 of the Judicature Act is however limited to “any proceedings previously tried or heard before him …” and accordingly Cowan C.J.T.D. and the Appeal Division properly quashed the order made by Judge Burke as to Mr. Rhyndress.

Di Iorio and Fontaine v. The Warden of the Common Jail of the City of Montreal and Brunet, [1978] 1 S.C.R. 152; A.G. Quebec v. A.G. Canada, [1945] S.C.R. 600, followed; Pringle v. Fraser, [1972] S.C.R. 821, referred to.

APPEALS from a judgment of the Supreme Court of Nova Scotia, Appeal Division[^1], dismissing an appeal from a judgment of Cowan C.J.T.D. quashing certain judgments of His Honour Judge Archibald Burke rendered after the date of his

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retirement from judicial office. Appeals of Ritcey, H.E. Rafuse, J.L. Rafuse and Kaizer allowed, that of Rhyndress dismissed.

David Walker, Q.C., and Albert Bremner, for the appellants.

R.M. Endres and Ms. M. Gallagher, for the respondent.

D.W. Mundell, Q.C., for the intervenor, the Attorney General of Ontario.

Donald G. Gibson, for the intervenor, the Attorney General of Canada.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Appeal Division of the Supreme Court of Nova Scotia, which is now conveniently reported in [(1978), 29 N.S.R. (2d) 50], affirming an order in the nature of certiorari made by the Chief Justice of the Trial Division of that Province whereby certain judgments were quashed as having been rendered by His Honour Judge Archibald Burke after the date of his retirement from judicial office.

His Honour Judge Burke was appointed to the County Court of District Number Two in the Province of Nova Scotia in May, 1971, but unhappily, owing to deteriorating health, he found it necessary to retire. His resignation was accepted by the Governor General in Council on February 2, 1978 at which time he had heard a number of cases in respect of which no decision had been rendered.

The order to quash which was granted by the Chief Justice related to fourteen of such cases but the present appeal is limited to the following cases falling into this category and related to the various appellants:

Henry Murray Ritcey—Mr. Ritcey was convicted in the Provincial Magistrate’s Court of violating ss. 234 and 236 of the Code and was acquitted on a charge under s. 235(2) of the Code. He appealed his convictions and the Crown the acquittal to the County Court of District Number Two. The three appeals were heard by Judge Burke on July 6, 1977. In a written reserved

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decision filed on February 17, 1978 he allowed the appeals from convictions and dismissed the Crown’s appeal from the acquittal.

Harvey Ernest Rafuse—Mr. Rafuse was convicted in the Provincial Magistrate’s Court of a violation of s. 236 of the Criminal Code. From such conviction he appealed to the County Court of District Number Two. The appeal was heard on May 9, 1977 by Judge Burke who, in a reserved decision in writing, delivered and filed on February 17, 1978 allowed the appeal.

John Leonard Rafuse—Mr. Rafuse appealed a conviction under s. 235(2) of the Code to the County Court of District Number Two. The appeal was heard by Judge Burke on May 9, 1977 and was allowed by him in a reserved decision in writing delivered and filed on February 17, 1978.

Melbourne Elijah Kaizer—This individual was acquitted of a summary conviction offence under the Explosives Act, R.S.C. 1970 Ch. E-15. A Crown appeal was heard on December 14, 1976 by Judge Burke who dismissed the same in a reserved written decision delivered and filed on February 15, 1978.

Mervyn Rhyndress—Mr. Rhyndress was convicted on a charge under s. 142 of the Code by the late Judge Levy in the County Court Judge’s Criminal Court of District Number Two. After trial, but before the entry of conviction. Mr. Rhyndress left the jurisdiction of the court. Judge Levy was succeeded in office by Judge Burke. Upon the return of Mr. Rhyndress to the jurisdiction of the court he was brought before Judge Burke on May 2, 1977 for sentencing. Submissions by counsel were made that day and the matter was adjourned from time to time. Finally on February 16, 1978 viva voce medical evidence was given before Judge Burke on behalf of Mr. Rhyndress. On the same day Judge Burke suspended the passing of sentence for a period of two years.

A number of issues were discussed in the Appeal Division arising out of the circumstances here disclosed, but in my view the crux of the matter turns upon the combined effect to be given to s. 48 of the County Court Act, R.S.N.S. 1967, c. 64 and sub. (1) of s. 33 of the Judicature Act, 1972 (N.S.), c. 2, in light of the provisions of the Criminal Code. These respective sections provide:

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County Court Act

48. Every county court, and the judge thereof, shall have and exercise the same powers and authority

(a) to enforce the orders of such court or judge;

(b) to deal with and punish for contempt, and

(c) generally such other powers and authority in actions and matters within the limits of the jurisdiction of such county court or judge thereof;

as are possessed by the Supreme Court or any judge thereof in like cases by virtue of the statutes for the time being of the Province, or otherwise.

Judicature Act

33 (1) Where a Judge resigns his office, or is appointed to any other court, or ceases to hold office, he may at any time within eight weeks after such event give judgment or grant an order in any proceeding previously tried or heard before him, as if he had continued in office.

It is of importance also to notice that the word “proceeding” as employed in the Judicature Act is defined in s. 1(g) of that statute as follows:

‘proceeding’ means any civil or criminal action, suit, cause or matter, or any interlocutory application therein, including a proceeding formerly commenced by a writ of summons, third party notice, counterclaim, petition, originating summons, originating motion, or in any other manner;…

In my view this appeal falls to be determined in accordance with the correct answer given to the constitutional question stated in the order of the Chief Justice of this Court dated January 22, 1979 which reads as follows:

If Section 33(1) of the Judicature Act, Statutes of Nova Scotia, 1972, Chapter 2, as amended—which authorizes a Judge who has resigned his office to give at any time within eight weeks after his resignation Judgment or grant an Order in any proceeding previously tried or heard by him, as if he had continued in office—applies to a County Court Judge trying an indictable offence without a jury under Part XVI of the Criminal Code and to a County Court Judge hearing an Appeal from a summary conviction and an Appeal against sentence in a summary conviction matter under Sections 747(c) and

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748 of the Criminal Code, then is such provision ultra vires the legislature of the Province of Nova Scotia or inoperative to the extent that it so applies?

As all these appeals except that of Rhyndress are concerned with the disposition made by Judge Burke after “hearing an appeal from a summary conviction”, I propose to treat the present appeal in the first instance as if it related exclusively to summary conviction cases and to give separate consideration to the indictable offence aspect of the Rhyndress case.

The constitutionality of the legislation depends upon the interpretation to be placed on the relevant provisions of the British North America Act and raises the somewhat ticklish question as to the distinction between the power allocated to the provincial legislatures under s. 92(14) and that reserved exclusively to the authority of the Parliament of Canada under s. 91(27). The relevant sections read as follows:

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next herein-after enumerated; that is to say,—…

93. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

94. … the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,—…

95. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

In the course of the reasons for judgment which he delivered on behalf of the Appeal Division, Mr. Justice Macdonald recognized that the combined effect of s. 48 of the County Court Act and s. 33 of the Judicature Act might well be to allow a county court judge exercising civil jurisdiction to give judgment or grant an order in any proceeding previously tried or heard by him within eight weeks after he has ceased to hold office, but he

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declined to accept the view that the same considerations applied in criminal matters and adopting the premise that “the power to determine whether or not an appeal shall lie is a matter of criminal procedure” he continued with the following paragraph (at p. 55) which in my view constitutes the true ratio decidendi of the judgment now under appeal:

Nowhere in Part XXIV of the Code nor in any other enactment of Parliament is any provision made for the exercise of jurisdiction in summary conviction appeals by a county court judge who has resigned his office. What is involved here is, in my view, criminal law and procedure in criminal matters. There being no provision in the Code or in any other Act of Parliament giving Judge Burke jurisdiction after retirement in criminal matters he was, in my opinion functus officio insofar as criminal appeal proceedings were concerned on and after February 2, 1978. Consequently, in my opinion, decisions he purported to render thereafter with respect to summary conviction appeals were nullities.

I am on the contrary of opinion that what is involved here is the constitution, maintenance and organization of the county courts in the Province of Nova Scotia. In my view, s. 48 of the County Court Act and s. 33(1) of the Judicature Act, when read together and in the context of the respective statutes in which they occur, form a part of the overall design established by the Province of Nova Scotia for the administration of justice in that Province and that they are effective to so constitute the county courts of that Province as to endow the judges thereof with the same authority to pronounce judgment after ceasing to hold office as that which is reposed in the judges of the Supreme Court of the Province by the Judicature Act.

As the authority to make laws in relation to the constitution of provincial courts is vested exclusively in the provincial legislature under s. 92(14), it appears to me to follow that insofar as the Criminal Code of Canada assigns any functions to be performed by county courts or their judges, it is to be taken as referring to such courts and such judges as they are constituted by the legislature of

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the province in question. Indeed, legislative authority over the constitution of courts of criminal jurisdiction is expressly excluded from the exclusive powers assigned to the Parliament of Canada by s. 91(27) of the B.N.A. Act although “additional courts for the better administration of the laws of Canada” may be constituted by Parliament under the authority of s. 101 of the B.N.A. Act. (See Pringle v. Fraser[^2]).

In the Province of Nova Scotia the right of appeal provided by s. 748 of the Criminal Code with respect to summary conviction offences is a right to appeal to “the county court of the district or county where the cause of the proceedings arose” (see s. 747(c)) and a judge of each such county court, including that over which Judge Burke had formerly presided is, as I have said, endowed with the authority to give judgment under the circumstances described in s. 33(1) of the Judicature Act.

To dispose of this appeal, as the Appeal Division appears to have done, on the basis of “What is involved here is … criminal law and procedure in criminal matters” and thus beyond the jurisdiction of the provincial legislature in my view runs contrary to what was said by Taschereau J. (as he then was) in A.G. Quebec v. A.G. Canada[^3], at p. 608 and is also at variance with the closely reasoned judgment more recently delivered by my brother Dickson in Nicola Di Iorio and Gérard Fontaine v. The Warden of the Common Jail of the City of Montreal and Brunet[^4], at pp. 208 to 210, where he said:

The phrase ‘criminal procedure’ does not lend itself to precise definition. In one sense, it is concerned with proceedings in the criminal Courts and such matters as conduct within the courtroom, the competency of witnesses, oaths and affirmations, and the presentation of evidence. Some cases have defined procedure even more narrowly in finding that it embraces the three technical terms—pleading, evidence and practice. In a broad sense, it encompasses such things as the rules by which, according to the Criminal Code, police powers are exer-

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cised, the right to counsel, search warrants, interim release, procuring attendance of witnesses.

The words of Mr. Justice Taschereau, as he then was, in A.G. Que. v. A.G. Can. (1945), 84 C.C.C. 369 at p. 394, [1945] 4 D.L.R. 305 at p. 328, [1945] S.C.R. 600 at p. 603, would suggest that the narrow construction is the more appropriate:

The power given to the federal parliament to legislate in criminal law and criminal procedure, is the power to determine what shall or what shall not be “criminal”, and to determine the steps to be taken in prosecutions and other criminal proceedings before the courts.

Macdonald, C.J.A. In re Public Inquiries Act: In re Clement (1919), 33 C.C.C. 119 at p. 120, 48 D.L.R. 237 at p. 238 [1919] 3 W.W.R. 115 at 117, wrote to the same effect:

The making of the criminal laws of Canada is assigned exclusively to the Dominion, so is the regulation of procedure in criminal matters. “Criminal matters” are, in my opinion, proceedings in the criminal Courts, and “procedure” means the steps to be taken in prosecutions or other criminal proceedings in such Courts.

It is not necessary and perhaps impossible, to find a satisfactory definition of ‘criminal procedure’. Although I would reject the view which would confine criminal procedure to that which takes place within the courtroom on a prosecution, I am equally of the opinion that ‘criminal procedure’ is not co-extensive with ‘criminal justice’ or that the phrase ‘criminal procedure’ as used in the B.N.A. Act, 1867, can drain from the words ‘administration of justice’ in s. 92(14) that which gives those words much of their substance—the element of ‘criminal justice’.

The courts have long distinguished between procedure and substantive law, and it would be wrong to take the form for the substance.

I take the view that when the exposition of the law as presented in the passage which I have last quoted is applied in determining the nature of the jurisdiction assigned to county court judges in Nova Scotia under the statutes which I have quoted, it is apparent that these statutes were

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validly enacted by the provincial legislature in making provision for the administration of justice in the province and that at least in respect of summary conviction appeals, they had the effect of endowing such judges with the authority to render judgments for eight weeks after their retirement in respect of cases which had been previously heard by them.

It follows from the above that I would allow the appeals herein which relate to summary conviction offences and restore the disposition thereof which was made by Judge Burke. It will be seen from all the above that I would answer the constitutional question stated by the Chief Justice by holding that s. 33(1) of the Judicature Act of Nova Scotia applies to a county court judge hearing an appeal from a summary conviction under ss. 747(c) and 748 of the Criminal Code and that such provision is neither ultra vires the legislature of the province of Nova Scotia nor inoperative.

Counsel on behalf of the Crown advanced an argument to the effect that the County Court Judges’ Criminal Court Act, R.S.N.S. 1967, c. 66 created a separate court from that which was created by the County Court Act, R.S.N.S. 1967, c. 64 and that the authority to render judgments after retirement accorded to a county court by s. 48 of the County Court Act and s. 33(1) of the Judicature Act did not extend to a county court judge sitting in the county court judges’ criminal court. The argument as I understood it proceeded on the basis that a county court judge dealing with an indictable offence under Part XVI of the Code was sitting in the “County Court Judges’ Criminal Court” and accordingly that no judgments rendered by him after retirement were accorded any validity whatever. Section 1 of the County Court Judges’ Criminal Court Act reads as follows:

The judge of every county court is constituted a court of record for the trial of any person committed to jail on a charge of being guilty of any offence for which such person may be tried by a judge of a county court without a jury, and for which the person so committed consents to be tried without a jury. The court so constituted shall have and exercise the powers and duties

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which the Criminal Code purports to confer or require, so far as the Legislature of this Province can confer or require the same.

It will be seen that this section refers to indictable offences as it is only such offences which “may be tried by a judge of a county court without a jury, and for which the person so committed consents to be tried without a jury”.

I do not find any validity in the contention that a county court judge is accorded a species of dual personality by reason of the enactment of the two statutes which relate to the county courts. Judge Burke in the present case was acting as county court judge for District Number Two in the Province of Nova Scotia and in my view there is only one such court clothed with the powers conferred upon it by two separate provincial statutes.

The judge’s extended authority described in s. 33(1) of the Judicature Act is, however, limited in its application to “any proceedings previously tried or heard before him …” and in the case of Mr. Rhyndress, Judge Burke had neither tried nor heard his case when he embarked on the exercise of calling witnesses and taking evidence in respect of the sentence to be awarded. In this regard he was acting without any authority whatever and in my view Chief Justice Cowan and the Appeal Division were amply justified in quashing the order which he made.

Neither the Rhyndress case nor any of the other appeals under consideration involved “a county court judge trying an indictable offence without a jury under Part XVI of the Criminal Code” and it accordingly becomes unnecessary to supply any answer to the first hypothetical case posed in the order fixing the constitutional question herein.

For all these reasons I would allow the appeals of Henry Murray Ritcey, Harvey Ernest Rafuse, John Leonard Rafuse and Melbourne Elijah Kaizer, set aside the judgments of the Appeal Division and the order of the Chief Justice of the Trial Division and restore the decisions of Judge Burke concerning each of them; but I would dismiss the appeal of Mervyn Rhyndress.

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Judgment accordingly.

Solicitor for the appellant Ritcey: David F. Walker, New Germany, Nova Scotia.

Solicitors for the appellants Harvey Ernest Rafuse, John Leonard Rafuse, Kaizer and Rhyndress: Albert E. Bremner, Bridgewater, Nova Scotia.

Solicitor for the respondent: The Attorney General of Nova Scotia, Halifax.

Solicitor for the intervenant the Attorney General of Ontario: The Attorney General of Ontario, Toronto.

[^1]: (1978), 29 N.S.R. (2d) 50. [^2]: [1972] S.C.R. 821. [^3]: [1945] S.C.R. 600. [^4]: [1978] 1 S.C.R. 152.