R. v. Skalbania, [1997] 3 S.C.R. 995

Nelson M. Skalbania Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Quebec and

the Attorney General for Alberta Interveners

Indexed as: R. v. Skalbania

File No.: 25539.

1997: November 6.

Present: Lamer C.J. and L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Appeals ‑‑ Questions of law ‑‑ Appeal raising issue of what mens rea suffices to establish guilt for offence of misappropriation of money held under direction ‑‑ Court of Appeal having jurisdiction to entertain appeal since issue raised was a question of law not of fact.

Criminal law ‑‑ Theft ‑‑ Misappropriation of money held under direction ‑‑ Mens rea ‑‑ Intentional misappropriation, without mistake, sufficing to establish mens rea of offence ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 332(1).

Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Appeal from acquittal ‑‑ Criminal Code permitting court of appeal to substitute guilty verdict for acquittal on trial by judge sitting alone but not on trial by judge and jury ‑‑ Criminal Code provision not violating s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(4)(b)(ii).

Criminal law ‑‑ Sentencing ‑‑ New judge sentencing accused because trial judge had retired before Court of Appeal’s decision substituting conviction for accused’s acquittal ‑‑ No merit to accused’s submission that he was entitled to be sentenced by judge who presided at trial.

Cases Cited

Referred to: Lafrance v. The Queen, 1973 CanLII 35 (SCC), [1975] 2 S.C.R. 201; R. v. Williams, [1953] 1 Q.B. 660.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 7.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 332(1), 669.2 [ad. c. 27 (1st Supp.), s. 137; am. 1994, c. 44, s. 65], 686(4)(b)(ii) [rep. & sub. c. 27 (1st Supp.), s. 145].

APPEAL from a judgment of the British Columbia Court of Appeal (1996), 1996 CanLII 2595 (BC CA), 80 B.C.A.C. 56, 130 W.A.C. 56, 109 C.C.C. (3d) 515, 1 C.R. (5th) 286, [1996] B.C.J. No. 1906 (QL), setting aside the accused’s acquittal on a charge of theft and substituting a conviction. Appeal dismissed.

Leonard T. Doust, Q.C., and Peter Leask, Q.C., for the appellant.

Teresa R. Mitchell‑Banks, for the respondent.

Robert Frater and Chantal Proulx, for the intervener the Attorney General of Canada.

M. David Lepofsky, for the intervener the Attorney General for Ontario.

Jacques Gauvin, for the intervener the Attorney General of Quebec.

Written submissions only by Jack Watson, Q.C., for the intervener the Attorney General for Alberta.

The judgment of the Court was delivered orally by

1 McLachlin J. ‑‑ We would all dismiss the appeal.

2 The appellant raises four issues.

3 The first issue is whether the Court of Appeal had jurisdiction to entertain this appeal. The appellant argues that the trial judge’s conclusion that he lacked the intention (or mens rea) required for the offence is a finding of fact. Since appeals lie only on questions of law, it follows, he argues, that there can be no appeal from his acquittal by the trial judge.

4 This argument fails on the ground that the issue raised in the Court of Appeal (and this Court) was not a question of fact, but an issue of law: namely what mental state or mens rea suffices to establish guilt under s. 332(1) of the Criminal Code, R.S.C., 1985, c. C‑46. The issue is whether the trial judge erred in law in holding that to convict there must be “an intent to steal”, and consequently in acquitting the appellant.

5 It follows that the Court of Appeal had jurisdiction to hear the appeal.

6 The second issue concerns the mens rea required for conviction under s. 332(1). We agree with Rowles J.A. in the British Columbia Court of Appeal that an intentional misappropriation, without mistake, suffices to establish mens rea under s. 332(1): see Lafrance v. The Queen, 1973 CanLII 35 (SCC), [1975] 2 S.C.R. 201; R. v. Williams, [1953] 1 Q.B. 660 (C.A.). The word “fraudulently”, as used in this section, connotes no more than this. The dishonesty inherent in the offence lies in the intentional and unmistaken application of funds to an improper purpose.

7 We also agree with Rowles J.A. that the findings of fact of the trial judge establish both the actus reus and mens rea of the offence. The actus reus is not in issue. On mens rea, the trial judge concluded:

I find that Mr. Skalbania was at all material times the controlling mind of Prime Realty Limited, to whom Mr. Gooch’s cheque was paid. I find that Mr. Skalbania through Prime Realty applied Gooch’s money for a purpose other than that directed by Mr. Gooch.

In short, the trial judge found: that the appellant knew that the money belonged to Mr. Gooch; that the appellant knew the purpose to which the money was supposed to be applied; and that the appellant knowingly, without mistake, applied the money to different purposes.

8 It follows that the Court of Appeal did not err in concluding that the elements required for conviction were established.

9 The third issue is whether s. 686(4)(b)(ii) of the Criminal Code, which permits a court of appeal to substitute a guilty verdict for an acquittal on a trial by a judge sitting alone, but not on a trial by a judge and jury, is unconstitutional.

10 The appellant argues that s. 686(4)(b)(ii) violates the s. 7 Charter right not to be deprived of one’s liberty except in accordance with the principles of fundamental justice for two related reasons: (1) that permitting the substitution of a conviction in cases where the trial was by judge alone but not where it was by judge and jury is arbitrary; and (2) that this is contrary to the alleged principle of fundamental justice that criminal proceedings must be consistent.

11 In our view, the impugned distinction is neither arbitrary nor inconsistent and does not trammel the s. 7 guarantee of fair process.

12 There is a distinction between trial by judge alone and trial by judge and jury that justifies the different procedures. Judges sitting alone give reasons that can be examined for findings of fact and errors of law. Juries, by contrast, do not give reasons. It cannot, therefore, be known if the jury has made the findings of fact necessary to support a conviction. For this reason, the Court of Appeal cannot substitute a conviction for the acquittal and a new trial must be held.

13 We conclude that s. 686(4)(b)(ii) does not violate s. 7 of the Canadian Charter of Rights and Freedoms.

14 The final issue raised by the appellant is whether he was entitled to be sentenced by the judge who presided at trial. Since that judge had retired at the time of the Court of Appeal’s decision, sentence was passed by a new judge.

15 In our view, there is no merit in this submission. Section686(4)(b)(ii) provides that the case be remitted to the “trial court”, not the “trial judge”. Section669.2 confirms this. The constitutionality of these provisions in relation to whether a particular judge can pass sentence was not challenged. Any other system would be unworkable. We note, without prejudice to any outstanding proceedings in relation to sentence, that transcripts of the trial were available and the hearing occupied three days.

16 In conclusion, we are unable to accept any of the grounds of appeal advanced by the appellant. We would dismiss the appeal, affirm the conviction, and answer the first constitutional question* in the negative.

Judgment accordingly.

Solicitors for the appellant: Leask, Daniells, Bahen, Vancouver.

Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.

Solicitor for the intervener the Attorney General of Canada: The Department of Justice, Ottawa.

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

Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Sainte‑Foy.

Solicitor for the intervener the Attorney General for Alberta: Jack Watson, Edmonton.

• Editor’s Note

The constitutional questions read as follows:

1. Is s. 686(4)(b)(ii) of the Criminal Code of Canada inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms in arbitrarily providing that:

. where a verdict is that of a judge and jury, a Court of Appeal cannot substitute a conviction for an acquittal; but

. where a verdict is that of a court composed of a judge alone, the Court of Appeal can substitute a conviction for an acquittal?

2. If the answer to Question 1 is “yes”, is the infringement demonstrably justified as a reasonable limit pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?