Schuldt v. The Queen, [1985] 2 S.C.R. 592

Herman Eric Schuldt Appellant;

and

Her Majesty The Queen Respondent.

File No.: 17810.

1985: February 20; 1985: December 17.

Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.

on appeal from the court of appeal for manitoba

Courts ‑‑ Appellate court jurisdiction ‑‑ Jurisdiction restricted to errors of law ‑‑ Acquittal set aside by appeal court and new trial ordered ‑‑ Whether error of law so as to confer jurisdiction on appellate court or error of fact.

Criminal law ‑‑ Attempted break and enter with intent to commit indictable offence ‑‑ Acquittal set aside and new trial ordered on appeal ‑‑ Appellate jurisdiction where error of law ‑‑ Whether or not appellate court had jurisdiction ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 24(1), (2), 306(1)(a), (2)(a), 605(1)(a).

Appellant and another person fled the vicinity of an attempted break and enter on the arrival of the police. The police apprehended appellant, positively identified him, and established his presence at the scene of the attempted entry. The second individual was never caught, but the tire iron that he was carrying was located nearby and found to match the nicks and paint chips of the damaged door.

Appellant was charged with attempting to break and enter with intent to commit an indictable offence. The trial judge acquitted appellant but the Manitoba Court of Appeal, on a Crown appeal, quashed that acquittal and ordered a new trial. The prevailing issue here was whether a finding of fact could become, per se, an error of law conferring on the Crown a right of appeal from acquittal under s. 605(1)(a), and if so, when does that finding of fact became an error of law.

Held: The appeal should be allowed.

A finding as regards intention is a finding of fact. The total absence of a foundation for a finding of fact, however, is an error of law. As regards an acquittal, this may only occur if there has been a transfer to the accused by the law of the burden of proof of a given fact. Absent a shifting of the burden of proof of a given fact upon the accused, there is always some evidence upon which to make a finding of fact in favour of the accused.

However wrong the Court of Appeal or this Court may think the trial judge was in reaching his conclusion in that regard, such error cannot be determined without passing judgment on the reasonableness of the verdict or the sufficiency of the evidence. These are matters upon which an appellate court has no jurisdiction on an appeal by the Crown.

It is only when the burden of proof has been shifted (as is the case for proof of intent when a person is found on premises that he or she has broken into), that it can be said, absent any evidence to the contrary, that there is no evidence upon which a reasonable doubt could exist as regards that fact, and an appeal against the ensuing acquittal raises a question of law alone conferring on the Crown a right of appeal pursuant to s. 605(1)(a) of the Criminal Code.

The doubt here concerned both the accused's intent to enter the premises and his intention once inside, assuming he intended to enter. There is no onus placed on the accused as regards proof of his intent to enter. The presumption of s. 306(2) is not triggered by an attempt to enter. There is, however, no onus on the accused as regards his intent once inside as would have been the case had he been found inside. Given the presumption of innocence and the undisplaced burden of proof placed upon the Crown, there was some evidence upon which the trial judge could rest his finding and that finding, if in error, would be an error of fact, not of law.

Cases Cited

Lampard v. The Queen, 1969 CanLII 695 (SCC), [1969] S.C.R. 373; Sunbeam Corporation (Canada) Ltd. v. The Queen, 1968 CanLII 33 (SCC), [1969] S.C.R. 221, applied; Belyea v. The King, 1932 CanLII 1 (SCC), [1932] S.C.R. 279, considered; R. v. Johnson (1973), 1973 CanLII 1405 (BC CA), 11 C.C.C. (2d) 101; St‑Jean v. The Queen (1974), 28 C.R.N.S. 1; Edwards (Inspector of Taxes) v. Bairstow, [1956] A.C. 14, referred to; Wild v. The Queen, 1970 CanLII 148 (SCC), [1971] S.C.R. 101; R. v. Lemire, 1964 CanLII 52 (SCC), [1965] S.C.R. 174, not followed.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, ss. 21, 24(1), (2), 306(1)(a), (2)(a), 605(1)(a).

Combines Investigation Act, R.S.C. 1927, c. 26.

Combines Investigation Act, R.S.C. 1952, c. 314, ss. 34(2), 41(2).

APPEAL from a judgment of the Manitoba Court of Appeal (1983), 1983 CanLII 3758 (MB CA), 23 Man. R. (2d) 75, allowing the Crown's appeal from an acquittal entered by Ferg Co. Ct. J. and ordering a new trial. Appeal allowed.

Waldy Derksen, for the appellant.

Donald Melnyk, for the respondent.

The judgment of the Court was delivered by

1. Lamer J.‑‑

Introduction

2. The accused was charged with having attempted to break and enter a Winnipeg gun shop with intent to commit therein an indictable offence. The trial judge acquitted and, upon a Crown appeal, the Manitoba Court of Appeal quashed the acquittal and ordered a new trial. Huband J.A., dissenting, would have dismissed the appeal. The accused now comes to this Court as of right.

3. The prevailing issue in this appeal is: Can and when does a finding of fact become, per se, an error of law, thereby conferring on the Crown a right of appeal from an acquittal under s. 605(1)(a) of the Criminal Code?

The Facts

4. The Court of Appeal proceeded on the summary of the facts set out in Huband J.A.'s opinion and I propose to do the same. They are as follows:

On the early morning of March 10, 1982, the back door entrance of 655 Archibald Street, a building housing the business known as Ernie's Gun Shop Ltd., was tampered with and damaged. The silent alarm in the building was triggered and two police cruisers arrived at the scene within minutes of each other. The first officers who arrived disturbed two men in the vicinity of the rear entrance of the building. One of the men ran off in a northerly direction carrying what appeared to be a tire iron, and the second man ran off in a southerly direction, turning east toward Archibald Street. The individual with the tire iron was not apprehended, although a tire iron was located nearby the next morning. Paint chips on the tire iron were the same colour as the damaged door, and the iron itself appeared to fit into the nicks which had been created when the door was tampered with. The individual who ran off in a southerly direction was seen by police officers in a second police car, was followed by them, and ultimately apprehended. He is the accused, Schuldt.

All the police officers involved positively identified the accused, and the print of his footwear was matched with imprints in the snow around the back entrance of the gun shop. After his arrest Mr. Schuldt was interrogated by the police and made only one statement of any consequence, which was admitted in evidence. In response to a request to use the phone the investigating officers asked him what he wanted to use it for, and the accused replied, "to phone home", to which the police officer responded, "to call your brother?", to which Mr. Schuldt replied, "He's a faster runner".

5. Before entering upon an analysis of the trial judgment, I think it would be desirable to set out the sections that the trial judge was called upon to apply to the facts.

6. Section 306(1)(a) of the Criminal Code makes it an offence to "break[s] and enter[s] a place with intent to commit an indictable offence therein".

7. Supporting the Crown in its burden of proving the intent for breaking and entering is s. 306(2)(a), which enacts that:

306.. . .

(2) For the purposes of proceedings under this section, evidence that an accused

(a) broke and entered a place is, in the absence of any evidence to the contrary, proof that he broke and entered with intent to commit an indictable offence therein: . . .

8. The charge being one of attempt, regard must be had to s. 24:

9. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

9. It is common ground that what was done to the door went beyond mere preparation. It is also common ground that the presumption of s. 306(2) is not triggered by an attempt, and we are, therefore, not invited to consider whether proof of a break coupled with proof of an intent to enter would be prima facie proof of an intent to commit therein an indictable offence. Indeed, the Crown adopted what was said in R. v. Johnson, a British Columbia Court of Appeal decision, reported at (1973), 1973 CanLII 1405 (BC CA), 11 C.C.C. (2d) 101, (see also St‑Jean v. The Queen (1974), 28 C.R.N.S. 1 (Que. C.A.)) Therefore, the Crown acknowledged that it had to make its case without the help of the presumption.

10. The Crown had to overcome three hurdles in order to establish guilt beyond a reasonable doubt:

(1) that the appellant was either directly forcing the door or, according to s. 21 of the Criminal Code, was a party to what was done to the door, that is, aided or abetted the other person in forcing the door, or, formed a common intention to commit in the gun shop an indictable offence in circumstances where he knew, or should have known, that the carrying out of the common intention probably required breaking and entry;

(2) that what was done to the door was done with the intent to break and enter into the gun shop, and

(3) that the intended break and entry was accomplished for the further intent to commit therein an indictable offence.

The Trial Judgment

11. A reading of the trial judge's reasons indicates that the Crown did not get past the first step, the applicant's participation in the commencement of the breaking of the door. In his reasons he says:

Now, there is certainly no proof, and certainly it is not proved beyond a reasonable doubt, that the accused intended anything else other than to be there. Most suspicious circumstances I grant you: two accused persons or two persons in the back lane, later at night, and we know, we were told although that the silent alarm went off in the building, and there is no question that someone had been tampering with the lock, no proof that it was this accused, however. But, of course, being there of itself is not sufficient to sustain a conviction. As far as I am concerned, there must be much much more evidence of intent than simply to have been there.

12. This would have been sufficient to put an end to the matter and to enter an acquittal. He further found however, that there was no proof as regards the purpose of the breaking and therefore no proof as regards an intention to enter:

Now, what proof do we have as to this accused's intentions? Firstly, on the night in question what he was doing, and even if he‑‑he must prove his intention, even if he were to get into the premises which were‑‑which were damaged, perhaps it was only his friend's intention to get in. We had no proof that it was the accused's intention to get into the premises or to get into the gun shop, whether to steal anything or to do whatever was going to go on in there.

Obviously, absent an entry, he found no evidence as regards the ultimate purpose, namely the intent to commit an indictable offence.

13. The Crown appealed. Section 605(1)(a) of the Criminal Code governs appeals from acquittals:

14. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone....

The Court of Appeal Judgments

14. The gist of the majority's (per Hall J. A., Monnin C.J. concurring) views of the matter were briefly but clearly expressed in the following passage in the reasons of Hall J.A.:

The facts as recited by my brother Huband are more than enough from which to find or infer that the accused, in concert with another, attempted to break and enter the gun shop with intent to commit an indictable offence. To entertain any doubt on the issue of intent is, in my opinion, not reasonable but fanciful and quite out of touch with the reality of the case. There must be a factual foundation upon which to have reasonable doubt, and it simply does not exist in the present case. It should here be noted that the accused did not testify at his trial nor did he adduce any evidence in his defence.

Applicable to this case are the remarks of Martland, J. in Wild v. The Queen, 1970 CanLII 148 (SCC), [1971] S.C.R. 101. At pp. 111‑112 he stated:

"In the Lemire case (1964 CanLII 52 (SCC), [1965] S.C.R. 174, 45 C.R. 16, [1965] 4 C.C.C. 11, 51 D.L.R. (2d) 312), to which reference was made in the reasons of the Appellate Division, quoted above, it was stated, in this Court, that on an appeal from a conviction, if an appellate court allows the appeal on the ground that certain specified evidence creates a reasonable doubt as to the guilt of the accused, when, on a proper view of the law, that evidence is not capable of creating any doubt as to his guilt, there is an error of law. In my opinion, that proposition applies equally in a case in which a trial judge, in his reasons, finds that certain specified evidence creates a reasonable doubt as to the guilt of the accused, when, on a proper view of the law, that evidence is not capable of creating any doubt as to his guilt."

In the present case, I do not think the evidence is capable of creating any doubt as to the guilt of the accused.

In sum, it was unreal and unreasonable for the learned trial judge to have had a reasonable doubt about the intent of the accused, and that, as I have stated, is a misapplication of that doctrine and an error in law.

15. Huband J.A. in his dissenting reasons unequivocally stated that he would have convicted had he been the trial judge. Having emphasized the Crown's limited right of appeal, he then made an exhaustive and most helpful review of the cases on point. He then found that he was to be governed by this Court's decision in Lampard v. The Queen, 1969 CanLII 695 (SCC), [1969] S.C.R. 373, where it was held that an accused's state of mind was an issue of fact and that an error in that regard was not an error of law alone. Consequently, he would have disallowed the Crown's appeal.

16. I do not think that there was an issue made in the courts below of the question whether a finding as regards an accused's intention is or is not a finding of fact. The judgment of the majority in the Court of Appeal makes no mention of that issue but focuses on whether a finding of fact that is "unreasonable", "fanciful", or "unreal" is an error of law. In this Court, the Crown seems to take the same position. The Crown's position can be summarized in the following passage of her factum, where it is said at p. 8:

The Respondent respectfully submits that the Court of Appeal for Manitoba did not err in holding that the learned trial Judge's incorrect conclusion as to the intent of Appellant in the circumstances of this case amounted to an error of law alone. While the evidence offered in proof of a prima facie case in a criminal case will not necessarily result in a finding of guilt, there must be some factual foundation on which the trial Judge can properly base a finding of reasonable doubt.

17. This Court, in Lampard, supra, and inferentially in Wild v. The Queen, 1970 CanLII 148 (SCC), [1971] S.C.R. 101, said that a finding as regards intention is a finding of fact, and I see no reason to reconsider that conclusion. This Court in Wild had also said that total absence of a foundation for a finding of fact is an error of law. I agree, but with respect, I do not agree as to the circumstances under which a finding that there is a total absence of evidence can properly be made.

18. Wild was charged with criminal negligence causing death. It was alleged that he had recklessly driven a car while in a state of intoxication and caused an accident resulting in the death of the three other occupants of the car. The ground upon which the judge rested his decision to acquit was that he had had a reasonable doubt as to whether the accused was the driver of the car at the time of the accident. As quoted at pp. 104‑05 the sole ground upon which the Crown appealed the verdict of acquittal was that

The learned trial Judge misdirected himself in law in ordering an acquittal as there was no evidence on the basis of which a reasonable doubt could arise as to the respondent's guilt.

19. Notwithstanding the fact that all of the evidence had indicated that the accused, found pinned down behind the steering wheel, was the driver at the time of the impact, the trial judge, in his reasons for judgment, speculated as to the possibility that one of the other occupants might have been the driver, as quoted at p. 104:

What can happen to the occupants of a vehicle which comes to such a sudden stop, is, I think, a matter for conjecture.

And, further on, he concluded that he was left in doubt as to whether the accused was the driver.

20. This to me was stating and applying the wrong test to the evidence and was an error of law, and for that reason I would have agreed in the result of the majority of this Court in that decision. On that point, Martland J., writing for the majority, said at p. 113:

On the facts of this case, however, the issue to be determined was whether, in the light of the appellant's having been pinned behind the wheel, there was any rational conclusion, on the evidence, other than that the appellant was the driver of the car at the time of the accident. He did not find that there was such a rational conclusion. What he did was to conjecture that the appellant might have been riding as a passenger in the back seat and, if so, might have been thrown into the front seat on impact.

and then, at p. 114:

In the result, it is my opinion hat the learned trial judge failed properly to apply the rule in Hodge's case to the facts before him in that he acquitted the appellant, not because he found that there was a rational conclusion on the facts inconsistent with his guilt, but because there was, in his opinion, a conjectural conclusion which he considered might be inconsistent with his guilt.

I do not take issue with this passage of his judgment. However, Martland J., at p. 111, added a reference to what he had said in R. v. Lemire, 1964 CanLII 52 (SCC), [1965] S.C.R. 174, as follows:

In the Lemire case (1964 CanLII 52 (SCC), [1965] S.C.R. 174, 45 C.R. 16, [1965] 4 C.C.C. 11, 51 D.L.R. (2d) 312), to which reference was made in the reasons of the Appellate Division, quoted above, it was stated, in this Court, that on an appeal from a conviction, if an appellate court allows the appeal on the ground that certain specified evidence creates a reasonable doubt as to the guilt of the accused, when, on a proper view of the law, that evidence is not capable of creating any doubt as to his guilt, there is an error of law. In my opinion, that proposition applies equally in a case in which a trial judge, in his reasons, finds that certain specified evidence creates a reasonable doubt as to the guilt of the accused, when, on a proper view of the law, that evidence is not capable of creating any doubt as to his guilt.

21. This is the precise passage which was relied upon by the Court of Appeal in this case and argued by the Crown before this Court. Lemire was a case where the issue was the existence of fraudulent intent on the part of the accused who had, at the suggestion of the Attorney General, submitted false expense accounts to the government. The purpose of that suggestion was to give him a raise in pay while avoiding having to do the same for other government employees. Convicted at trial, the accused's appeal was allowed by the Court of Appeal. The Crown's appeal to this Court was allowed and the conviction restored.

22. Writing for the majority in Lemire, Martland J. stated the passage to which he subsequently referred in Wild, supra, and went on to say, at p. 194:

These facts are not in dispute. In the reasons given in the Court below, which I have reviewed, certain inferences have been drawn from the facts in evidence, but the fundamental error which exists in each, and which is an error in law, is in holding that, on the basis of those inferences, some element in the offence was lacking.

In Belyea and Weinraub v. The King (1932 CanLII 1 (SCC), [1932] S.C.R. 279), this Court considered a case in which the Appellate Division of the Supreme Court of Ontario had allowed an appeal by the Crown from an acquittal by the trial court in proceedings by indictment. The right of appeal to the Appellate Division was limited, as is the appellant's right to appeal to this Court in the present case, to questions of law. It was contended by the appellants in that case that the issues before the Appellate Division did not involve a question of law alone. Chief Justice Anglin, who delivered the judgment of the Court, said at p. 296:

"The right of appeal by the Attorney‑General, conferred by s. 1013(4), Cr. C., as enacted by c. 11, s. 28, of the Statutes of Canada, 1930, is, no doubt, confined to "questions of law". That implies, if it means anything at all, that there can be no attack by him in the Appellate Divisional Court on the correctness of any of the findings of fact. But we cannot regard that provision as excluding the right of the Appellate Divisional Court, where a conclusion of mixed law and fact, such as is the guilt or innocence of the accused, depends, as it does here, upon the legal effect of certain findings of fact made by the judge or the jury, as the case may be, to enquire into the soundness of that conclusion, since we cannot regard it as anything else but a question of law,‑‑especially where, as here, it is a clear result of misdirection of himself in law by the learned trial judge."

In my opinion, the guilt of the respondent in the present appeal depends upon the legal effect of facts found, or inferred, in the Court below. This raises questions of law in respect of which, for the reasons already stated, I think there was error. There is no ground not involving such questions upon which Lemire's appeal could have been allowed. There was, therefore, a right of appeal to this Court and the appeal should succeed.

(Emphasis added.)

23. His reliance on Belyea v. The King, 1932 CanLII 1 (SCC), [1932] S.C.R. 279, requires an examination of that case. Belyea had been acquitted at trial of a conspiracy to commit an offence under the Combines Investigation Act, R.S.C. 1927, c. 26, on the basis that "there [was] not sufficient evidence that the appellants participated in, or were privy to, the subsequent admittedly illegal acts of the Windsor group...." (p. 292)

24. As quoted by Anglin C.J. at p. 294, the Court of Appeal entered a conviction on the grounds that "the error in law into which the learned judge fell was in not distinguishing between the conspiracy itself and overt acts which, while not themselves the conspiracy, were evidence of the existence of the conspiracy."

25. In my view, Chief Justice Anglin's remarks, cited above, relied upon by Martland J. in Lemire, supra, and subsequently in Wild, supra, were in answer to, and must be understood with that context in mind, what the Chief Justice reports had been argued by Belyea at p. 295:

If sitting as a jury, we should have no hesitation in finding that the illegal acts done at Windsor were a result intended by the defendants and their fellow conspirators when they formed the organizations found to have been a combine and a conspiracy. But we do not proceed on this ground, since to do so would involve making a finding of fact contrary to a finding of the trial judge.

Counsel for the appellants argued at considerable length that the Appellate Division had exceeded its jurisdiction in this case because it reversed the trial judge on what counsel called a finding of fact, i.e., the innocence of the accused of participation in the formation of an illegal combine and of conspiracy within s. 498, Cr. C. This, it seems to us, involves a clear misconception of the true question in issue.

Having determined that the formation of the various organizations in question amounted to the formation of an illegal combine, and to a conspiracy within s. 498, Cr. C., the learned judge proceeded to deal with the questions as to who had incurred criminal responsibility. He convicted Singer, Paddon and Ward on evidence which, in our opinion, clearly implicated Belyea and Weinraub, in much the same manner in which Singer and his companions were involved, in the formation of the combine and conspiracy in question. He fell into error, however, when he proceeded to find that it was essential to a finding of guilt of the accused, that they should be held to have had actual knowledge of, or to have actually participated in, the overt acts at Windsor.

(Emphasis added.)

26. It is amply clear to me that the gist of the Court's reasons for finding an error of law is summarized in the last sentence that I have quoted and underlined. There was in that case, in my respectful view, an error of law.

27. Therefore, it is with the greatest of deference for the contrary view that I cannot find in Belyea, as Martland J. did, support for the basis upon which he decided the Lemire and the Wild appeals. I do agree with him, however, that a finding of fact that is made in the absence of any supportive evidence is an error of law. I must say, however, that that will happen as regards an acquittal only if there has been a transfer to the accused by law of the burden of proof of a given fact.

28. The footing for this statement is to be found in the dissenting reasons of Spence J. in this Court's decision in Sunbeam Corporation (Canada) Ltd. v. The Queen, 1968 CanLII 33 (SCC), [1969] S.C.R. 221, and then Cartwright C.J.'s reasons when writing for the majority of the Court in Lampard, supra.

29. Sunbeam Corporation was charged in Ontario under the Combines Investigation Act, R.S.C. 1952, c. 314, on four counts of attempting to require or induce the maintenance of a resale price contrary to s. 34(2) of that Act. As a result of appeals and cross appeals in the Court of Appeal and the abandonment by the accused at the hearing in the Court of Appeal of their appeal on counts 1 and 2, the Court of Appeal heard and allowed the Crown's appeal on counts 3 and 4, and entered a conviction. The Corporation then appealed to this Court. Sunbeam took the position in the Ontario Court of Appeal and in this Court that the Crown's appeal was not on a question of law alone, but at best on a mixed question of law and fact and that upon such ground there lay no appeal. The prosecution's burden of proving its case was assisted by a presumption (s. 41(2) of the Act) to the effect that certain documents, when proved to have been in the possession of the accused, were (1) prima facie evidence that the accused had knowledge of the documents and their contents, and (2) that anything recorded therein as having been done was done by its agent with the authority of the accused.

30. The Crown's case relied upon certain admissions and on the production of documents found under circumstances which triggered the presumption. The accused Corporation's defence was put forward by two witnesses. Neither addressed the aforementioned documents and their testimony did not in any way attempt to rebut the prima facie evidence of the knowledge of the accused, nor of the authority of its agent to act as he did.

31. Spence J. (Judson and Pigeon JJ. concurring) in his dissenting reasons found that the statutory provision had the effect of turning into a question of law alone what would otherwise have been a finding of fact, at pp. 254‑56:

It is contended that even if the evidence is found to be sufficient to support a conviction, the further question of whether the guilt of the accused should be inferred from that evidence is a question of fact and reference is made to Fraser v. The King, 1936 CanLII 25 (SCC), [1936] S.C.R. 296, 66 C.C.C. 240, [1936] 3 D.L.R. 463, and Rose v. The Queen, 1959 CanLII 67 (SCC), [1959] S.C.R. 441, 31 C.R. 27, 123 C.C.C. 175. Those were cases in which facts necessary to establish the guilt of the accused had to be inferred, in the first, from circumstantial evidence, in the other, from other proven facts. In neither case was there a statutory provision enacting that the proven facts would constitute prima facie evidence of the other facts required to establish the guilt of the accused and, therefore, the making or not making of an inference was not a question of law alone although it might be unreasonable. However, when there is, as in this case, a statutory presumption to be applied, once the facts necessary to give rise to it are found by the trial judge to be established beyond reasonable doubt, the question whether the inference should be made is no longer anything but a question of law alone: the statute does not provide that the facts to be inferred may be deemed to exist but that they shall be. To say that such evidence does not bear the quality of certainty that ought to exist in the case of a criminal charge is to ignore or contradict the statute and is, therefore, an error in law and nothing else.

As against this, it is contended that the legal presumption is not a presumption of guilt but a presumption of some facts and that the trier of the facts has to weigh the evidence before reaching a final conclusion.

In Rose v. The Queen, supra, Tashereau J., as he then was, said at p. 443:

"The trial judge sitting without a jury was fulfilling a dual capacity. He had, therefore, to discharge the duties attached to the functions of a judge, and also the duties of a jury. As a judge he had to direct himself as to whether any facts had been established by evidence from which criminal negligence may be reasonably inferred. As a jury he had to say whether, from those facts submitted, criminal negligence ought to be inferred. Metropolitan Railway Co. v. Jackson, (1877), 3 App. Cas. 193 at 197; King v. Morabito, 1949 CanLII 1 (SCC), [1949] S.C.R. 172 at 174. I think that the trial judge directed himself properly, and that when he decided on the facts submitted to him that criminal negligence ought not to be inferred, he was fulfilling the functions of a jury on a question of fact."

However, in that case, the trial judge in coming to his decision that the accused should have been acquitted was performing a function of weighing the evidence. The charge was one of causing death by the operation of a motor vehicle, and the evidence dealt with the conduct of the accused in driving his automobile against a red traffic signal. The learned trial judge found that the accused was not keeping a proper lookout but that his speed was not above the normal at the intersection and reached the conclusion that the accused had not seen the red light. The trial judge, weighing those facts, came to the conclusion that they did not show the wanton or reckless disregard for the lives or safety of other persons required for conviction of the offence charged. Therefore, the learned trial judge had evidence one way and the other way to weigh and a conclusion to arrive at as a result of that weighing whether such conduct showed the standard of negligence required by the provisions of the Criminal Code. In the present case, the learned trial judge had no such task of weighing. There was no evidence contra; there was nothing which needed to be inferred beyond the inference required by the section of the statute. There was a simple admission established as prima facie evidence by the provisions of s. 41 of the Combines Investigation Act that the accused through its agent had attempted to induce these persons to sell at not less than the specified minimum price. I am, therefore, of the opinion that the enunciation of the varying duties of the judge and jury as set out above with which, with respect, I agree, do not apply in the present case to make the learned trial judge's acquittal of the accused a mere matter of fact.

(Emphasis added.)

32. Ritchie J. wrote for the majority (Cartwright C.J., Fauteux and Martland JJ. concurring). The following passage at pp. 234‑35 summarizes the approach adopted by the majority:

In the present case the trial judge accepted the evidence as contained in the letters above referred to and thus gave full effect to s. 41(2) of the Combines Investigation Act, but he concluded that this evidence was not sufficient to satisfy him beyond a reasonable doubt that the accused were guilty on the 3rd and 4th counts. However wrong the Court of Appeal or this Court may think that he was in reaching this conclusion, I am of opinion, with all respect for those who hold a different view, that this error cannot be determined without passing judgment on the reasonableness of the verdict or the sufficiency of the evidence, and in my view these are not matters over which the Court of Appeal has jurisdiction under s. 584(1)(a) of the Criminal Code.

33. Shortly thereafter the Lampard decision was rendered. Lampard is a case where the finding of fact was in relation to the intent with which Lampard had done certain acts. It is in that case that this Court conclusively decided that a person's intention is a question of fact. There was no onus placed upon the accused as regards proof of his intention.

34. Cartwright C.J., for the majority, said at pp. 380‑81 that the applicable principles are to be found in Ritchie J.'s reasons in Sunbeam:

When the onus of establishing a certain fact lies upon a party it may be a question of law whether there is any evidence (as distinguished from sufficient evidence) to prove that fact. In the case at bar the onus was, of course, upon the Crown to prove that the appellant did the acts complained of with the guilty intention specified in the section. If the learned trial Judge erred in finding that that onus had not been satisfied, his error was one of fact, certainly not one of law in the strict sense. The applicable principles are clearly set out in the reasons of my brother Ritchie giving the judgment of the majority of this Court in the Sunbeam case, supra, and it is not necessary to repeat them.

35. Ritchie J., in Sunbeam, commenting on a judgment of the House of Lords in Edwards (Inspector of Taxes) v. Bairstow, [1956] A.C. 14, which had been relied upon by the Court of Appeal in that case had said, at pp. 236‑38:

I am satisfied, after having read the reasons for judgment of Lord Radcliffe, that the Bairstow case was one in which the court was required to decide whether the facts found by the Commissioners were such as to bring the taxpayer within the language employed in s. 237 of the English Income Tax Act, 1918, and that the question of law upon which the House of Lords decided that case was "what is the meaning to be given to the words of the Income Tax Act of `trade, manufacture, adventure or concern in the nature of trade' "? I must say, with all respect, that that case does not appear to me to afford any authority for the proposition that in an appeal against a judgment of acquittal under s. 584(1)(a) of the Criminal Code "a question of law alone" is involved whenever a reviewing court is of opinion that the finding of the trial judge was unreasonable and improper having regard to the evidence.

If the phrase "a question of law alone" as it occurs in that section were to be so construed, then the result in my opinion would be not only to extend the Attorney General's right to appeal under that section, but also to enlarge the meaning of the phrase "a question of law" as it occurs in other sections of the Criminal Code dealing with appeals not only to the Court of Appeal but to this Court. In my opinion such an interpretation could result in a broadening of the scope of appellate jurisdiction under the Criminal Code beyond the limitations which are stipulated in the express language of the Code itself.

The provisions of s. 592(1)(a) of the Code provide that:

592. (1) On the hearing of an appeal against a conviction, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice; ...

The italics are my own.

Parliament has thus conferred jurisdiction on the Court of Appeal to allow an appeal against a conviction on three separate grounds, one of which is the very ground upon which the Court of Appeal allowed the present appeal, i.e., that "the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence". The fact that s. 592(1)(a) recognizes this ground as being separate and distinct from "the ground of a wrong decision on a question of law" appears to me to be the best kind of evidence of the fact that Parliament did not intend the phrase "a question of law" as it is used in the Code to include the question of whether the verdict at trial was unreasonable or could not be supported by the evidence. It is noteworthy that having accorded the Court of Appeal jurisdiction to hear appeals against conviction on the ground that the verdict was unreasonable, Parliament did not confer the same jurisdiction on that Court in appeals by the Crown. No authority is needed for the proposition that appellate jurisdiction must be expressly conferred and with all respect for those who may hold a different view, I am of opinion that the Court of Appeal has exceeded its jurisdiction by allowing this appeal on a ground reserved for appeals against conviction which does not extend to appeals by the Attorney General.

36. With those principles in mind, Cartwright C.J. went on to say, in Lampard, supra, at p. 381:

In a criminal case (except in the rare cases in which a statutory provision places an onus upon the accused) it can sometimes be said as a matter of law that there is no evidence on which the Court can convict but never that there is no evidence on which it can acquit; there is always the rebuttable presumption of innocence.

(Emphasis added.)

37. This passage, and the reference to the occasional displacement of the onus onto the shoulders of the accused as an exception, is in my view an adoption by Cartwright C.J. of the principles set out by Ritchie J. in Sunbeam (in which he had in any event concurred), but qualified by the exception upon which Spence J. and the minority relied in their dissenting reasons. In other words, absent a shifting of the burden of proof upon the accused there is always some evidence upon which to make a finding of fact favourable to the accused, and such a finding, if in error, is an error of fact. But when the burden of proof has been shifted (as is the case for proof of intent when a person is found in a place which he or she has broken into), it can be said, absent any evidence to the contrary, that there is no evidence upon which a reasonable doubt could exist as regards the intent of the accused, and an appeal against the ensuing acquittal raises a question of law alone.

38. I agree with Cartwright C.J.'s reading of the majority and the minority in Sunbeam and, clear as it is, should surely not try to improve upon it. Might I add that if and to the extent that our judgment in Wild is taken as detracting from that statement of the law, the views of Cartwright C.J. in Lampard, are, in my respectful view, the proper exposition of the law.

39. In the present case it is common ground that the doubt is as regards the intent to enter the premises as well as the accused's intention, assuming he intended to enter, once inside. There is no onus placed on the accused as regards proof of his intent to enter. Nor is there as regards his intent once inside, as would have been the case, however, had he been found inside. Given the presumption of innocence and the undisplaced burden of proof which rests with the Crown, there is, therefore, some evidence upon which the trial judge could rest his finding and that finding, if in error, a matter upon which I shall refrain from expressing any views, would be an error of fact, not of law.

40. I would allow the appeal, quash the Court of Appeal's order for a new trial and restore the trial judge's acquittal.

Appeal allowed.

Solicitors for the appellant: Derksen, Follett & Co., Winnipeg.

Solicitor for the respondent: Department of the Attorney General, Winnipeg.