R. v. Reddick, [1991] 1 S.C.R. 297

Alexander J. Reddick Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Reddick

File No.: 21625.

1990: December 19; 1991: February 14.

Present: Sopinka J.

motion for an order of reversal of judgment

Criminal law -- Appeal -- Supreme Court of Canada -- Consent to reversal of judgment -- Accused granted leave to appeal to Supreme Court of Canada -- Crown consenting to reversal of judgment to the extent that a new trial be ordered -- Whether s. 70 of Supreme Court Act applies to criminal appeal -- Whether consent order can be forced on unwilling appellant -- Supreme Court Act, R.S.C., 1985, c. S-26, s. 70.

Cases Cited

Referred to: R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R. 480.

Statutes and Regulations Cited

Supreme Court Act, R.S.C., 1985, c. S‑26, s. 70.

MOTION for an order of reversal of judgment. Motion dismissed.

Henry S. Brown, for the appellant.

Stephen Grace, for the respondent.

//Sopinka J.//

The following are the reasons for the Order delivered by

Sopinka J. -- This is an application by the Crown for an order of reversal of judgment pursuant to s. 70 of the Supreme Court Act, R.S.C., 1985, c. S‑26. The Crown has filed a consent to a "reversal of the Judgment, to the extent that a new trial be ordered".

The Facts

The appellant was charged with eight counts relating to various offences under the Criminal Code, R.S.C., 1985, c. C‑46 (then R.S.C. 1970, c. C‑34) and was convicted at trial on all counts except three and eight. The Nova Scotia Court of Appeal allowed the appeal in part and directed an acquittal on count one and a new trial on counts six and seven. The appellant applied for leave to appeal to this Court with respect to counts two, four and five on several grounds. Leave was granted on the following ground only:

That, subsequent to the date of the trial of this matter in the Nova Scotia Supreme Court and the date of the appeal of this matter before the Nova Scotia Court of Appeal, new evidence has surfaced of such a nature that, had it been known at trial, it would have affected the result of the trial.

Section 70

A question arises at the threshold of this application as to whether, in view of the detailed provisions of the Code relating to the right to appeal to this Court and the powers of this Court on a criminal appeal, s. 70 applies to this proceeding. I have considered the submissions of counsel and conclude that the provisions of the Supreme Court Act apply to a criminal appeal unless excluded by the language of the Code or by the terms employed in our Act. This is the reason, for example, that it was necessary to enact s. 40(3) of the Supreme Court Act. See R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368.

The next question is whether the section can be used to force a consent order on an unwilling appellant. Strange as it may seem at first blush, the appellant resists the application to order a new trial. In my opinion, the section does not require the consent of the appellant but rather contemplates a situation in which the respondent consents to a disposition that gives the appellant all the relief that would be available if complete success were achieved on the appeal.

Disposition

In this appeal, if the appellant were completely successful, the convictions on counts two, four and five would be quashed and the appellant acquitted. In R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R. 480, McIntyre J. dealt with the powers of a court of appeal in connection with an application to adduce fresh evidence. At page 488 he stated: "I also agree that a new trial will not be required in every case, for there will be cases where the new evidence may be so conclusive that the Court of Appeal can determine the proceedings on its own."

Whatever the chances are in this case that this will be the outcome for the appellant, he cannot be deprived of them by a unilateral consent to judgment by the respondent. The application is therefore dismissed.

Motion dismissed.

Solicitors for the appellant: Gowling, Strathy & Henderson, Ottawa.

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