R. v. Inco Limited

R. v. Inco Limited Collection Decisions of the Court of Appeal Date 1999-11-05 Docket numbers M24923, M24938 Judges Borins, Stephen Subject Criminal Decision Content DATE: 19991105 DOCKET: M24923 M24938 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Applicant) and INCO LIMITED (Respondent) RE: HER MAJESTY THE QUEEN (Respondent) and INCO LIMITED (Applicant) BEFORE: BORINS J.A. (IN CHAMBERS) COUNSEL: J.G. Herlihy, for Her Majesty the Queen David Stratas and Doug Hamilton for Inco Limited HEARD: November 4, 1999 On appeal from the judgment of Wilson J. dated September 20, 1999 ENDORSEMENT [1] In my view, and with the consent of Inco Limited, this is an appropriate case in which to grant to the Crown leave to appeal pursuant to s. 131 of the Provincial Offences Act, as the proposed appeal is upon a question of law and it is both essential in the public interest and for the due administration of justice, that leave be granted. [2] Although the appeal judge allowed Inco Limited’s appeal and set aside the convictions, he also directed that there be a new trial. Inco Limited had advanced two grounds of appeal. The first ground was that the trial justice of the peace had erred in dismissing a motion seeking an order to stay or quash the charges against Inco Limited based on sections 6 to 10 of the Charter. The second ground was that the trial justice of the peace had erred in applying the legal test regarding the proof of offences contrary to s. 30(1)(2) of the Ontario Water Resources Act. In allowing the appeal, the appeal judge gave effect to the second ground. Consequently, he felt that it was unnecessary to deal with the first ground. [3] Inco Limited now seeks leave to appeal from the failure of the appeal judge to decide the first ground of appeal. It contends that it was entitled to succeed in its appeal on both grounds and that if leave to appeal is not granted the opportunity to raise this ground before this court on the Crown’s appeal will be unavailable. Thus, it submits that leave to appeal should be granted to prevent a potential miscarriage of justice. In my view, this contention is well taken because if this court allows the Crown’s appeal and restores the convictions, Inco Limited will have been deprived of the opportunity of an appellate court’s opinion in respect to its Charter defence which had been rejected at trial. [4] As in R. v. Valente (1982), 144 D.L.R. (3rd) 111, a decision of this court, the decision of the appeal judge giving rise to this application for leave poses awkward procedural problems. However, I am satisfied that they are resolved by the reasons of Blair J.A. in Valente, which stand for the proposition that when a provincial appeal judge makes a decision not to deal with an issue this qualifies as a decision, and therefore, is a judgment within the meaning of s. 131(1) of the Provincial Offences Act, in respect to which leave to appeal may be granted. [5] If the court declines to grant leave to appeal in what is, functionally, a cross-appeal, an unsatisfactory result may follow from the Crown’s appeal. On the one hand, if the appeal succeeds and the convictions are restored, Inco Limited will have been deprived of an appellate review of the ruling made by the trial justice of the peace rejecting its Charter defence. On the other hand, if the Crown’s appeal fails and there is a new trial, the Charter defence will, no doubt, be raised again by Inco Limited. The trial court will have to rule upon the defence without the benefit of a ruling from this court. In such circumstances, there would be a serious likelihood of another appeal. This suggests that leave to appeal should be granted to enable the Court of Appeal to be able to adjudicate upon all the relevant issues and avoid a potential miscarriage of justice, or another series of appeals. [6] In my view, Inco Limited’s application for leave to appeal involves a question of law. As well, the test in s. 131(2) is satisfied as the due administration of justice requires that leave to appeal be granted to Inco Limited. [7] In the circumstances, there will be no costs of either application. “S. Borins J.A.”