SUPREME COURT OFCANADA
The Queen v. Zelensky,[1978] 2 S.C.R. 940
Date: 1978-05-01
Her Majesty The Queen Appellant;
and
Anne Zelensky Respondent;
and
The T. Eaton Company Limited, The Attorney General of Canada,The Attorney General of Quebec and The Attorney General of Alberta Interveners.
1977: November 29; 1978: May 1.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon,Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Constitutional law — Criminal law — Theft — Plea of guilty —Sentence of imprisonment and probation — Order for compensation and forrestitution — Requirements not met for compensation but for restitution only —Validity of s. 653 of Criminal Code, R.S.C. 1970, c. C-34.
The accused, who was an adjuster in the cataloguesales operation of the T. Eaton Co. Ltd., and her husband were charged withdefrauding Eaton to a value of $18,000 more or less and a day later somerelatives of the accused were charged with receiving stolen goods. Still later,a charge of fraud was laid against another relative of the accused.Subsequently, a new charge was laid against the accused, her husband, herdaughter, her son-in-law and her sister of theft of money, to the amount of$18,000 more or less and merchandise to the amount of $7,000 more or less, theproperty of Eaton. As a result of plea bargaining, the accused and her husbandelected to be tried before a provincial court judge. They pleaded guilty to thecharge of theft of money to the amount of $18,000 "more or less" andmerchandise to the amount of $7,000 "more or less". All the othercharges were stayed.
Eaton instituted civil proceedings, for the recoveryof money and merchandise stolen from it by the offenders, a day before thecriminal charges were brought against them. It continued with the civilproceedings, taking steps in connection therewith while the criminal proceedingswere in progress, and even after the offenders had pleaded guilty to theft.Eaton then decided to seek a compensation order under s. 653 of the CriminalCode and a dispute arose with respect to the amount of loss, particularlyin relation to the money that was allegedly
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stolen. So far as appeared, the civil proceedingswere maintained while the application for a compensation order was pursued.
The trial judge gave a suspended sentence to the accused'shusband but he meted out to her a sentence of imprisonment for two years less aday. In addition, the accused was sentenced to one year of supervised probation.At the same time, the trial judge made an order for compensation under s.653(1) in the amount of $18,000, and directed restitution of recovered goodsunder s. 655.
On appeal to the Court of Appeal it was first unanimouslydecided that the incarceration and probation sentence should be affirmed.Later, the majority expressed the view that s. 653 was ultra vires, theminority that it was valid. However, the majority also found, contrary to theconclusion of the dissenting judges, that in any case the orders of compensationand of restitution had been improperly made. An appeal by the Crown, with leaveof this Court, followed:
Held: The appeal should be allowed in part;the order of the Court of Appeal is affirmed in so far as it set aside theorder for compensation under s. 653 of the Code but is varied so as toreinstate that part of the composite order of the trial judge directingrestitution. There should be a declaration that s. 653 is valid, Pigeon, Beetzand Pratte JJ. dissenting as to s. 653(1) and (2).
Per Laskin C.J. and Martland, Ritchie,Spence, Dickson and Estey JJ.: The validity of s. 655 was not impeached beforethe Court of Appeal or before this Court, and the order for restitution muststand as a severable order validly made under s. 655.
Section 653 is valid as part of the sentencingprocess. Although a good deal was made by those attacking the validity of thesection of the provision therein for filing and entering a compensation orderas a judgment of the provincial superior court, this is simply administrativemachinery which cannot control the issue of validity.
In the reasons of the majority of the Court of Appeal,Matas J.A. adverts to various considerations affecting the applicability of s.653 and draws an adverse constitutional conclusion when comparisons are drawnbetween the procedures in a civil action for damages and the relative positionof the accused as a defendant in such an action and his position as a convictedperson against whom an order is sought under s. 653. In assessing constitutionalitythere is merit in such an approach, but relative advantages in applicableprocedures cannot be
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determinative of validity where the primary considerationis a more functional one, with regard being had to the object of the impugnedlegislation and its connection with other admittedly valid aspects of thecriminal process.
An order for compensation should only be made withrestraint and with caution, and in the circ*mstances of the present case thereshould be no interference with that part of the judgment of the majority of theCourt of Appeal holding that the order for compensation should not have beenmade.
It is important to contain s. 653 within its validcharacter as part of the sentencing process and thus avoid the allegation ofintrusion into provincial legislative authority in relation to property andcivil rights in the province. Although the Courts have recognized the widescope of the federal power in relation to criminal law and criminal procedure,and although there is now a broad range of powers in a sentencing court to dealwith offenders, it nonetheless remains true that the criminal law cannot beused to disguise an encroachment upon provincial legislative authority. Anyserious contest on legal or factual issues, or on whether the person alleginghimself to be aggrieved is so in fact, should signal a denial of recourse to anorder under s. 653.
With reference to the question of appeal from anorder for compensation, the filing of such an order in the provincial superiorcourt does not put in motion any civil proceedings other than those relating toenforcement. A compensation order, being included in the definition of"sentence" under s. 601 of the Criminal Code, is appealable asprovided by that Code, and the application of the principle of Pringlev. Fraser, [1972j S.C.R. 821, excludes any suggestion that civil appealproceedings are open.
Section 616 of the Criminal Code deals with thepowers of a provincial court of appeal in respect of an order for compensationand provides for suspension of the operation of the order during the time it isappealable and until appeal proceedings, if taken, are concluded. Section616(2) empowers the provincial court of appeal to annul or vary a compensationorder, whether or not the conviction is quashed. It does not itself give aright of appeal. It appears, therefore, that only the accused has a right ofappeal against a compensation order, a right given by s. 603(1)(b), and not theperson in whose favour the compensation order is made. This is consistent withthe character of such an order as part of sentence.
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Re Torek and The Queen (1974), 1974 CanLII 759 (ON SC), 15 C.C.C. (2d) 296;Turcotte c. Gagnon, [1974] R.P. 309, applied; City of Toronto v.The King, 1931 CanLII 465 (UK JCPC), [1932] A.C. 98; In re Board of Commerce Act, 1919, and theCombines and Fair Prices Act, 1919, 1921 CanLII 399 (UK JCPC), [1922] 1 A.C. 191; Attorney-Generalof Ontario v. Hamilton Street Railway, 1903 CanLII 121 (UK JCPC), [1903] A.C. 524; ProvincialSecretary of Prince Edward Island v. Egan, 1941 CanLII 1 (SCC), [1941] S.C.R. 396; Referencere Validity of Section 5(a) of the Dairy Industry Act, 1948 CanLII 2 (SCC), [1949] S.C.R. 1, aff'd1950 CanLII 342 (UK JCPC), [1951] A.C. 179; R. v. Scherstabitoff, 1962 CanLII 562 (BC CA), [1963] 2 C.C.C. 208; IndustrialAcceptance Corporation Ltd. v. The Queen, 1953 CanLII 50 (SCC), [1953] 2 S.C.R. 273; GoodyearTire & Rubber Co. of Canada Ltd. v. The Queen, 1956 CanLII 4 (SCC), [1956] S.C.R. 303;Sunbeam Corporation (Canada) Ltd. v. The Queen, 1968 CanLII 33 (SCC), [1969] S.C.R. 221; R. v.Groves (1977), 1977 CanLII 1045 (ON SC), 39 C.R.N.S. 366; Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R.331; R. v. Cohen and Miller, 1922 CanLII 418 (MB CA), [1922] 3 W.W.R. 1126; Attorney-Generalfor Ontario v. Reciprocal Insurers, 1924 CanLII 460 (UK JCPC), [1924] A.C. 328, referred to.
Per Pigeon, Beetz and Pratte JJ., dissentingin part: The accused admitted only having stolen some merchandise and asubstantial sum of money the amount of which she was unwilling to admit. Thetrial judge was quite correct in accepting the submission by counsel for theCrown that this attitude of the accused was proof of her continuing dishonesty,in other words, that she was unrepentant. However, no matter how much this madeaccused's case unsympathetic and also reflected against counsel who co-operatedin such tactics, it could not constitute a proper foundation for a compensationorder. The making of a compensation order could not be justified without clearevidence of a definite amount by admission or otherwise.
With respect to the order for restitution, thesituation was somewhat different. There were no civil proceedings pending, allthe merchandise that the accused was charged with having stolen was seized bythe police and nothing was said which might indicate that the plea of guilty tothe charge of theft of merchandise to the amount of $7,000 more or less did notcover each of the articles seized. Also, the order of restitution was madeunder a section of the Code, the constitutionality of which was notdisputed. The making of such order is not discretionary as the order forcompensation, but is mandatory in the case specified in s. 655(1). The orderof restitution should, therefore, be restored.
As to the constitutional validity of s. 653, theorders that the section purports to authorize are clearly intended to be insubstitution for the civil remedy and not in addition to it. In the lattercase, the section would be
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valid as providing for punishment. The question thatarises is whether Parliament's jurisdiction over "The Criminal Law, ...including the Procedure in Criminal Matters" extends to procedure in civilmatters arising out of the same set of facts that constitute a criminaloffence. This question must be answered in the negative. The authority todefine crimes does not include the authority to legislate concerning the purelycivil consequences of the facts that constitute a crime. Similarly theauthority to legislate respecting procedure in criminal matters does notinclude the authority to legislate on procedure in civil matters even when thesame set of facts are involved in the criminal offence as in the civil claim.In this respect one should note that s. 10 of the Criminal Code reads:"No civil remedy for an act or omission is suspended or affected by reasonthat the act or omission is a criminal offence." It also should be notedthat a finding of guilt under the Criminal Code has been held not to beconclusive from a civil point of view: La Foncière v. Perras, 1943 CanLII 42 (SCC), [1943] S.C.R.165.
This, however, does not decide the issue of constitutionalityin the present case because an important aspect of the constitutional divisionof legislative authority remains to be considered namely, the extent of thefederal ancillary power. Subsections (1) and (2) of s. 653 cannot beconsidered as necessarily incidental to the full exercise by Parliament of itsauthority over criminal law and criminal procedure. A compensation order isnothing but a civil judgment.
The provisions of s. 653(3) are of adifferent character than subss. (1) and (2) under which the compensationorder becomes a civil judgment. Subsection (3) has its origin in a differentsection of the previous Criminal Code namely, s. 1049, traceable to theold Larceny Act. In so far as this deals with moneys found in the possessionof the accused at the time of his arrest, it is properly incidental to criminalprocedure. The arrest of a person suspected of crime, a search of his personand the detention of money found in his possession are all part of the normalcriminal process. The proper disposition of money thus seized is therefore anecessary part of the criminal procedure, just as the adjudication on the guiltor innocence of the accused.
It followed that s. 653(1) and (2) shouldbe held to be ultra vires save to the extent contemplated in s. 653(3).
Adgey v. The Queen, 1973 CanLII 37 (SCC), [1975] 2 S.C.R. 426; Lake v.The Queen, 1968 CanLII 28 (SCC), [1969] S.C.R. 49; Provincial Secretary of Prince EdwardIsland v. Egan, 1941 CanLII 1 (SCC), [1941] S.C.R. 396; Switzman v. Elbling, 1957 CanLII 2 (SCC), [1957] S.C.R.285; Ross v. Registrar of Motor Vehicles, 1973 CanLII 176 (SCC), [1975] 1 S.C.R. 5; City of
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Toronto v. The King, 1931 CanLII 465 (UK JCPC), [1932] A.C. 98; Basted v.Grafton, [1948] 1 W.W.R. 614; Attorney General for Canada v.Attorney General for British Columbia, 1929 CanLII 439 (UK JCPC), [1930] A.C. 111; AttorneyGeneral for Quebec v. Attorney General for Canada, 1945 CanLII 51 (SCC), [1945] S.C.R. 600;R. v. Scherstabitoff, 1962 CanLII 562 (BC CA), [1963] 2 C.C.C. 208; Toronto Corporation v. YorkCorporation, 1938 CanLII 252 (UK JCPC), [1938] A.C. 415; Re State of Nebraska and Morris (1971), 1970 CanLII 957 (MB KB), 2C.C.C. (2d) 282, referred to.
APPEAL from a judgment of the Court of Appeal for Manitoba[1],allowing an appeal from a judgment of Collerman P.C.J. Appeal allowed in part,Pigeon, Beetz and Pratte JJ. dissenting in part.
J. D. Dangerfield and A. Jacksteit, for the appellant.
D. A. Yanofsky, Q.C., for the respondent.
S. Froomkin, Q.C., and S. R. Fainstein, for the AttorneyGeneral of Canada.
M. Pothier and Y. Berthiaume, for the Attorney General ofQuebec.
W. M. Henkel, Q.C., for the Attorney General of Alberta.
M. L. Ostfield and B. A. Crane, for T. Eaton Co. Ltd.
The judgment of Laskin C.J. and Martland, Ritchie, Spence,Dickson and Estey JJ. was delivered by
THE CHIEF JUSTICE—This appeal, brought here by leave to thisCourt, challenges the majority judgment of the Manitoba Court of Appeal (MatasJ.A., Hall and O'Sullivan JJ.A. concurring, Monnin J.A., Guy J.A. concurring,dissenting) which invalidated s. 653 of the Criminal Code and heldalso, and in any event, that Provincial Court Judge Collerman erred in law inmaking an order for compensation under that provision and in directing restitutionof stolen property under s. 655. The order for compensation and for restitutionwas a composite order made at the time the respondent Anne Zelensky wassentenced to imprisonment and to a term of probation after pleading guilty totheft and was in pursuance of an
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application for such relief made by T. Eaton Company Limited,the victim of the theft.
The validity of s. 655 was not impeached before the ManitobaCourt of Appeal or before this Court, and there was nothing in the reasons of MatasJ.A. which pertained particularly to the direction for restitution of thestolen goods by way of contesting that part of the trial judge's compositeorder. It appears to have been swept out by reason of its association with theorder for compensation. Counsel .for the respondent Anne Zelensky did notcomplain here of the order for restitution and, in my view, it must stand as aseverable order validly made under s. 655, whatever be the disposition as tothe order for compensation under s. 653 and as to the validity of thislast-mentioned provision.
Sections 653 and 655 read as follows:
653. (1) A court that convicts an accused of an indictableoffence may, upon the application of a person aggrieved, at the time sentenceis imposed, order the accused to pay to that person an amount by way ofsatisfaction or compensation for loss or damage to property suffered by theapplicant as a result of the commission of the offence of which the accused isconvicted.
(2) Where an amount that is ordered to be paid undersubsection (I) is not paid forthwith the applicant may, by filing the order,enter as a judgment, in the superior court of the province in which the trialwas held, the amount ordered to be paid, and that judgment is enforceableagainst the accused in the same manner as if it were a judgment renderedagainst the accused in that court in civil proceedings.
(3) All or any part of an amount that is ordered to be paidunder subsection (1) may, if the court making the order is satisfied thatownership of or right to possession of those moneys is not disputed byclaimants other than the accused and the court so directs, be taken out ofmoneys found in the possession of the accused at the time of his arrest.
655. (1) Where an accused is convicted of an indictableoffence the court shall order that any property obtained by the commission ofthe offence shall be restored to the person entitled to it, if at the time ofthe trial the property is before the court or has been
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detained so that it can be immediately restored to thatperson under the order.
(2) Where an accused is tried for an indictable offence butis not convicted, and the court finds that an indictable offence has beencommitted, the court may order that any property obtained by the commission ofthe offence shall be restored to the person entitled to it, if at the time ofthe trial the property is before the court or has been detained, so that it canbe immediately restored to that person under the order.
(3) An order shall not be made under this section in respectof
(a) property to which an innocent purchaser for value hasacquired lawful title,
(b) a valuable security that has been paid or discharged ingood faith by a person who was liable to pay or discharge it,
(c) a negotiable instrument that has, in good faith, beentaken or received by transfer or delivery for valuable consideration by aperson who had no notice and no reasonable cause to suspect that an indictableoffence had been committed, or
(d) property in respect of which there is a dispute as toownership or right of possession by claimants other than the accused.
(4) An order made under this section shall be executed bythe peace officers by whom the process of the court is ordinarily executed.
(5) This section does not apply to proceedings against atrustee, banker, merchant, attorney, factor, broker or other agent entrustedwith the possession of goods or documents of title to goods, for an offenceunder section 290, 291, 292 or 296.
I think it desirable to set out s. 654 as well because it standsas a reinforcement and adjunct to the policy reflected in s. 653. It is inthese words:
654. (1) Where an accused is convicted of an indictableoffence and any property obtained as a result of the commission of the offencehas been sold to an innocent purchaser, the court may, upon the application ofthe purchaser after restitution of the property to its owner, order the accusedto pay to the purchaser an amount not exceeding the amount paid by thepurchaser for the property.
(2) Where an amount that is ordered to be paid undersubsection (1) is not paid forthwith the applicant may, by filing the order,enter as a judgment, in the superior court of the province in which the trialwas
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held, the amount ordered to be paid, and that judgment isenforceable against the accused in the same manner as if it were a judgmentrendered against the accused in the court in civil proceedings.
(3) All or any part of an amount that is ordered to be paidunder subsection (1) may, if the court making the order is satisfied thatownership of or right to possession of those moneys is not disputed byclaimants other than the accused and the court so directs, be taken out ofmoneys found in the possession of the accused at the time of his arrest.
Sections 653, 654 and 655 have been in the Criminal Code insimilar but not exact formulation since the Code's enactment in1892: see ss. 836, 837, 838. The original of the present s. 653, namely, s.836, provided for compensation not exceeding one thousand dollars upon theapplication of the person aggrieved, the amount to be deemed a judgment debtowing by the accused and enforceable in the same way as an order for costsunder s. 832, which provided, inter alia, for satisfaction in whole orin part out of money belonging to and taken from the accused on his arrest.
The provision for compensation was not then tied expressly to thesentencing process as is now the case under s. 653. Under the original of thepresent s. 654, namely, s. 837, where property involved in the offence was soldto a bona fide purchaser and restored to the true owner, the purchasercould apply for compensation out of money of the accused taken from him on hisapprehension. The present s. 654 clearly goes farther in providing for anorder for a money payment, subject to the Court being able to direct that allor part of the compensation to the purchaser be paid out of money in thepossession of the accused at the time of his arrest and which is indisputablyhis. Neither in ss. 836 or 837 was there any such express provision as nowexists in ss. 653 and 654 for filing the order for compensation, with effect asa judgment enforceable as if it was a judgment in civil proceedings.
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The principle of restitution under the present s. 655 is carriedforward from the original s. 838, but the present provision is more explicit(if, indeed, the original provision covers the point at all) that an order willnot be made if there is a dispute as to ownership of the property involved by claimantsother than the accused. No such issue arose in the present case and, as I havealready said, the order for restitution must stand.
It appears to me that ss. 653, 654 and 655, historically andcurrently, reflect a scheme of criminal law administration under whichproperty, taken or destroyed or damaged in the commission of a crime, isbrought into account following the disposition of culpability, and may beordered by the criminal court to be returned to the victimized owner if it isunder the control of the court and its ownership is not in dispute or thatreparation be made by the offender, either in whole or in part out of moneyfound in his possession when arrested if it is indisputably his and otherwiseunder an order for compensation, where the property has been destroyed ordamaged.
I think s. 655(2) gives particular emphasis to the scheme inproviding for an order of restitution, even if the accused has been acquitted,where the property involved in the commission of an offence is under the controlof the court. The integrity of the scheme is seen in s. 654, already mentioned,which enables the criminal court to tidy up a situation where stolen propertyhas been sold to a bona fide purchaser and it is available for restorationto the victimized owner, the court being authorized upon such restitution toinflict upon the offender a liability to pay to the innocent purchaser what hegave for the goods.
I regard s. 654 as of a piece with s. 388(2)(3) which deals with wilfuldamage to property where the damage does not exceed fifty dollars. The summaryconviction court is authorized to make an award of compensation, not exceedingthat amount, to the aggrieved person in addition to any punishment imposed,payment being enforced by a term of imprisonment not exceeding two months. Thepecuniary sanction under both s. 388 and s. 654 may be regarded as theimposition of restitutionary
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fines, with a direction as to the destination of the money, adirection which it is open to Parliament to give: see Toronto v. The King[2].It is true that in that case the challenged legislation of Parliament, aprovision of the Criminal Code, provided for certain fines to be paid tothe municipal or local authority but I see no departure from principle and fromlawful constitutional authority if they are directed to a victim of a crime orto someone, e.g. the bona fide purchaser under s. 654 who hasalso been victimized as a result thereof. Of course, the characterization ofthe compensation provided under ss. 388 and 654 spills over to the provisionsof s. 653 and has a relation as well to s. 655.
There is a passage in the reasons in Toronto v. The King,supra, at p. 104, which is relevant here. Lord Macmillan, speaking for thePrivy Council, said this:
Turning now to s. 91 of the British North America Act,their Lordships find that "notwithstanding anything in this Act,"and therefore notwithstanding the provisions of s. 109, "the exclusivelegislative authority of the Parliament of Canada extends to all matters comingwithin ... the criminal law". Plainly, and indeed admittedly, this conferson the Dominion Parliament the exclusive right by legislation to create anddefine crimes and to impose penalties for their commission. In their Lordships'opinion it no less empowers the Dominion legislature to direct how penaltiesfor infraction of the criminal law shall be applied. It has always beenregarded as within the scope of criminal legislation to make provision for thedisposal of penalties inflicted, as innumerable instances show, and the powerto do so is, if not essential, at least incidental, to the power to legislateon criminal matters for it may well go to the efficacy of such legislation. Ifthe power to direct the manner of application of penalties were to bedissociated from the power to create such penalties and were to be lodged inanother authority, it is easy to see how penal legislation might be seriouslyaffected, if not stultified.
Section 653 is at the heart of the compensation provisions of theCriminal Code, and the question of its validity is a matter of firstinstance in this Court. We have Iong abandoned the notion expressed in thejudgment of the Privy Council in
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In re Board of Commerce Act, 1919, and the Combines and FairPrices Act, 1919[3], atp. 198, that there is some fixed "domain of criminal jurisprudence".The Privy Council itself had a different view in Attorney-General of Ontariov. Hamilton Street Railway[4], atp. 529, where it noted that it was "the criminal law in its widest sense"that fell within exclusive federal competence. If that was true of thesubstantive criminal law, it was equally true of "procedure in criminalmatters", which is likewise confided exclusively to Parliament. Indeed,Duff C.J.C. said in Provincial Secretary of Prince Edward Island v. Egan[5],at p. 401, that "the subject of criminal law entrusted to the Parliamentof Canada is necessarily an expanding field by reason of the authority of theParliament to create crimes, impose punishment for such crimes and to deal withcriminal procedure." We cannot, therefore approach the validity of s. 653as if the fields of criminal law and criminal procedure and the modes ofsentencing have been frozen as of some particular time. New appreciationsthrown up by new social conditions, or reassessments of old appreciations whichnew or altered social conditions induce make it appropriate for this Court tore-examine courses of decision on the scope of legislative power when freshissues are presented to it, always remembering, of course, that it is entrustedwith a very delicate role in maintaining the integrity of the constitutionallimits imposed by the British North America Act.
We are concerned in this case not with a novel form of relief topersons aggrieved by another's criminal conduct, resulting in the loss ordestruction of property, but with one in respect of which the novelty is thatno challenge has come to this Court on the matter until now. Certainly, as hasbeen often said, time does not validate a statute which is unconstitutional,but I point out that there is an instance in our law where time has invalidateda statute which was generally regarded as constitutional. That was the resultof the Margarine
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Reference, Reference re Validity of Section 5(a) of the DairyIndustry Act[6],holding that federal legislation prohibiting the manufacture, possession andsale of margarine, (first enacted in 1886 when there was concern about thenutritional quality of the product and its danger to health) could not besustained as an exercise, inter alia, of the federal criminal law powerbecause in the intervening years, changes in methods of manufacture and ofingredients had removed any danger to health. Correlatively, it seems to me,the passage of time has resulted in new approaches to criminal lawadministration so as to confirm the propriety of the long-standingprovisions of the Criminal Code for compensation and restitution.
I would refer in this connection to Working Paper 5 of the LawReform Commission of Canada, October 1974, where in dealing with restitution(which it conceives in wide terms covering and going beyond what is embraced byss. 653, 654 and 655), the Commission says (at p. 6) that "not only isrestitution a natural and just response to crime, it is also a rationalsanction". In proposing that "restitution ... become a centralconsideration in sentencing and dispositions" that it should meritforemost but not exclusive consideration, the Commission made a number of relevantobservations (at pp. 7-8):
Recognition of the victim's needs underlines at the sametime the larger social interest inherent in the individual victim's loss. Thus,social values are reaffirmed through restitution to victim. Society gains fromrestitution in other ways as well. To the extent that restitution works towardself-correction, and prevents or at least discourages the offender's committalto a life of crime, the community enjoys a measure of protection, security andsavings. Depriving offenders of the fruits of their crimes or ensuring thatoffenders assist in compensating victims for their losses should assist indiscouraging criminal activity. Finally, to the extent that restitutionencourages society to perceive crime in a more realistic way, as a form ofsocial interaction, it should lead to more productive responses not only byParliament,
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the courts, police and correctional officials but also byordinary citizens and potential victims.
Until the decision of the majority of the Manitoba Court ofAppeal in the present case, there has not been any pronouncement by a court inthis country in challenge of the validity of ss. 653, 654 and 655. Thereare decisions which have either assumed the validity of s. 653, or havebeen silent on it, as for example, Regina v. Scherstabitoff[7],but where validity has been faced it has been affirmed and I shall come tothose cases shortly. At the same time, other types of sanctions than thetraditional ones of imprisonment and of fines payable to the Crown have beenenacted and sustained upon a challenge to their constitutionality. To takethree examples, in Industrial Acceptance Corporation Ltd. v. The Queen[8],this Court upheld the validity of a provision for forfeiture of propertyused in the commission of a criminal offence, whether or not the property wasowned by a person other than the one convicted; in Goodyear Tire &Rubber Co. of Canada Ltd. v. The Queen[9], thisCourt sustained the validity of a provision for a prohibitory order against thecontinuation or repetition of certain offences defined in the provision, theorder to be in addition to any other penalty imposed on the person convictedand to be one which could be directed to the convicted person or any otherperson and, as indicated in Sunbeam Corporation (Canada) Ltd. v. The Queen[10],one which may prohibit the repetition or continuance of the offence inrespect of other persons than those who were the victims under the charge or byother means than those condemned under the particular conviction; and in Reginav. Groves[11] O'DriscollJ. of the Ontario Supreme Court upheld the validity under the federal criminallaw power of s. 663(2)(e) of the Criminal Code which providesthat the Court may include in a probation order a requirement that theconvicted person
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"make restitution or reparation to any person aggrieved orinjured by the commission of the offence for the actual loss or damagesustained by that person as a result thereof'.
I wish to dwell for a moment on s. 663(2)(e) because, in the courseof argument on this appeal when reference was made to it, there seemed to belittle challenge to its validity on the view that provision for restitution orreparation was so integrally a part of the sentence as to distinguish it froms. 653; and there was the further point that a wilful breach of a probationorder was an offence under s. 666(1) and punishable on summary conviction.
Apart from the question of enforcement under s. 666(1) (which maybe contrasted with the enforcement open under s. 653 by filing the compensationorder in a superior court with effect as a judgment thereof), I see nodifference in principle between a provision for reparation in a probationorder, as an additional term of what is in effect a sentence, and a directionfor compensation or reparation by an order under s. 653 which, if made at all,must be made at the time sentence is imposed. I find little to choose, excepton the side of formality, in the requirement of s. 653 that the compensationorder must be based on an application by the person aggrieved rather than bemade by the Court suo motu as is apparently, but only apparently, theposition under s. 663(2)(e).
The reasons of the majority of the Manitoba Court of Appealagainst the validity of s. 653 are those of Matas J.A., concurred in by HallJ.A., and fortified by additional concurring reasons of O'Sullivan J.A. I notethat O'Sullivan J.A. agreed that monetary penalties may constitutionally bedirected for the benefit of victims of crime because, in imposing a pecuniarypenalty which would benefit the victim, the Court would still be imposing apenal sanction, that is to say, punishment, and the compensation would flowfrom the imposition of the penalty. Why then would the learned Justice hold s.653 to be invalid? He stated his reasons as follows:
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The vice of sec. 653, in my opinion, is that it does notregard the payment of an amount equivalent to damage done by a criminal as partof a punishment which will vary with the circ*mstances of the offence and theoffender. It seeks to confer directly on the victim of a crime a right to claimcompensation from the wrongdoer. The section, if valid, would confer on thevictim of a crime an additional and alternative civil right to sue in acriminal court for that for which he already has the right to sue in a civilcourt. In my opinion, this constitutes an invasion of the field of propertyand civil rights and is beyond the powers of Parliament.
Matas J.A. acknowledged in his reasons that an order forcompensation under s. 653 is part of the sentencing process but qualified thisobservation in two ways; first, by pointing out that, although it is included,along with orders under ss. 654 and 655 and dispositions under s. 663(1), inthe definition of "sentence" under s. 601, this provision occurs in apart of the Criminal Code relating to appeals; and, second, thisinclusion in a definition does not itself determine validity, nor is validityestablished by the fact that an order under s. 653 is, even apart from the definitionin s. 601, made part of the sentencing process under its very terms, since itbecomes necessary, in either case, to decide whether it can validly be madepart of the sentencing process under the federal criminal law power.
I find these reservations in turn diluted by the agreement of MatasJ.A. with the view of Haines J. in Re Torek and The Queen[12]that compensating victims of crime is a valid object in sentencing. I amunable to appreciate, therefore, why there should be any doubt about the validityof a compensation provision, tied to the sentencing process as is s. 653,unless refuge is taken in a renewal of a notion that there is a proper domainof criminal law which forecloses an extension of the scheme of sanctions,although, admittedly, there is a rational connection between that part of s.653 which is challenged and that part which is valid: see Papp v. Papp[13],at p. 336.
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Re Torek and The Queen, supra, appears to contain the mostextensive consideration of the issue under review prior to the conclusions ofthe Manitoba Court of Appeal in the present case. It is relied on heavily by MonninJ.A., Guy J.A. concurring, in the dissenting reasons. The Torek casecarne before Haines J. on a motion for certiorari by a convicted person toquash a compensation order against him in favour of the victim. (I note in thereasons that the order was sought by the Crown Attorney acting on behalf of thevictim.) I reproduce certain portions of the reasons in Torek that sumup most of the considerations, pro and con, that were urged in the argument inthis Court. At pp. 298-9 Haines J. said this:
Counsel for the applicant argued forcefully that s. 653 isreally legislation pertaining to property and civil rights and falls within theambit of s. 92(13) of the British North America Act, 1867, rather thancriminal law. Counsel pointed out that under s. 653, the accused is deprived ofmany of the protections which he would have in an ordinary civil action. Forinstance, the defendant does not really have notice of the claim beforehand andcannot defend it properly. He has no right to discovery by which he couldattempt to elicit proper proof of value of the articles which allegedly havebeen stolen. In the present case, one of the articles allegedly stolen by theapplicant was a ring owned by Mrs. Kaminsky. The value of that ring was placedat $1,500, but no proof of purchase or of the value of the ring was led beforethe Court. In arriving at the sum of $4,377.50, His Honour Judge Revilleclearly accepted Mr. Kaminsky's testimony as to exactly what was stolen incash, the ring and liquor. The applicant argues that had Mr. Kaminsky beenforced to undertake a civil action to recover the sum, he would have beenforced to prove his loss in a stricter manner. However, under s. 653, all thatthe complainant need do is merely testify as to value and the accused cannotreally disprove it. In other words, the protection afforded to a defendant bythe Judicature Act, R.S.O. 1970, c. 228, and the Rules of Practice, areremoved, but the consequence is really the same in the sense in that thecomplainant gets what is, in effect, a judgment, which by s. 653(2) can beenforced in the provincial superior Courts in the ordinary manner.
I do not think that there can be any doubt that the right tobring and defend an ordinary civil action is a civil right, which is within thecompetence of provincial legislation. Nor can there be any doubt that in these
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circ*mstances, Mr. Kaminsky could have commenced an actionagainst the applicant. However, it does not follow that the federal Governmentis entirely without power to order restitution or compensation in somecirc*mstances.
In my view, proceedings under s. 653 can be considered tobe part of the sentencing process. It is worth noting that in s. 601, whichdeals with appeals on indictable offences, the word "sentence" isdefined to include an order made under s. 653. It seems to me that it is avalid object in sentencing to prevent a convicted criminal from profiting fromhis crime by serving a jail term and then keeping the gains of his illegalventure. Counsel for the applicant admitted that it would be proper for theorder complained of to have been made as a term of probation, pursuant to s.663(2)(e) and (h) .. .
I fail to see that there is any meaningful distinctionbetween an order requiring an accused to make restitution or reparation as setout in s. 663(2)(e) and an order requiring an accused to pay by way ofsatisfaction or compensation as set out in s. 653(1).
More than fifty years ago, Perdue C.J.M. in Rex v. Cohen andMiller[14], cameto a similar conclusion in the Manitoba Court of Appeal, saying, with respectto the provisions for restitution and compensation, that the matters dealtwith in the relevant provisions "seem to me to be incidental to theexclusive legislative authority of Parliament over criminal law and procedurein criminal cases and therefore within its power" (at p. 1127). MatasJ.A. referred briefly to Rex v. Cohen and Miller but refused to regardit as an authority for holding s. 653 to be valid, probably because PerdueC.J.M. was the only member of the Court who took the constitutional point and,in any event, his pronouncement on it was obiter.
In Iine with the view taken by Haines J. in Re Torek and TheQueen, supra, is the judgment of Hugessen A.C.J. in Turcotte c. Gagnon[15],which arose by way of an application to enter as a judgment of the SuperiorCourt of Quebec an
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order for compensation made under s. 653 against a convictedperson in favour of his victim. In sustaining the validity of the compensationorder and allowing it to be entered and enforced as a judgment of the SuperiorCourt, Hugessen A.C.J. made two points: first, the fact that Parliament hasmade the compensation order enforceable as a judgment in a civil action is morea call on the administrative side of the Superior Court than on the judicialside but it is, in any event, a means open to Parliament to provide for theexecution of an order validly made; and, second, the compensation order may beregarded as a fine or penalty. His reasons contain the following observations(at pp. 317-318):
In my view, an order for restitution to the victim of acrime is not only incidental to criminal law and procedure; it may be aninherent part of the sentencing process. While it may be true that,historically, the Common Law did not recognize compensatory orders as beingpart of the criminal process, I can see no reason why appropriate legislationwithin the exercise of the criminal law power should not render them so.
…
In my opinion, Parliament has attempted to provide for suchcompensation, albeit in an imperfect and partial manner, by the provisions ofsection 653. As is made clear by section 601, an order under section 653 is apart of the sentence rendered by the criminal court. Proceedings such as thepresent ones taken in a civil court in order to effect the execution of such anorder do not cause it thereby to lose its criminal law character. In effect,all that Parliament has done is to impose upon the provincial superior courts,which are equipped for such purpose, the duty of providing for the execution ofan order already given by a court of competent jurisdiction. As already statedin the present judgment, the function of the civil court in such a case is notso much judicial as administrative and I would have no right, on a petition ofthe present sort, to vary the order made by the Court of Sessions of the Peaceeven were I minded to do so.
That Parliament may, by appropriate legislation, vest in aprovincial superior court a jurisdiction which it did
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not possess at common law has been established almost sincethe time of Confederation... .
I regard the point taken by Hugessen A.C.J. with reference to theenforcement procedure under s. 653 as a central one, having regard to theposition of the majority of the Manitoba Court of Appeal in the present case.It is not unusual for Parliament to invoke the aid of the provincial courts forthe effective administration of its legislation. A prime example is in thefield of bankruptcy where Parliament has enacted not only a comprehensivestatute on the substantive law but also has provided for rules of procedurewhich are administered in the provincial courts. A good deal was made by thoseattacking the validity of s. 653 of the provision therein for filing andentering a compensation order as a judgment of the provincial superior court.This, to me, as it was to Justice Hugessen, is machinery which cannot controlthe issue of validity.
The Criminal Code exhibits another illustration in ss. 656and 657 of the resort to provincial courts for enforcement of criminal courtorders. Those sections deal with the imposition of costs in defamatory libelprosecutions, and authorize the party in whose favour costs are awarded toenter judgment for the costs by filing the order in the superior court of theProvince in which the trial was held, and the judgment is to be enforceable inthe same way as if it were a judgment in a civil proceeding.
In his extensive reasons for judgment, Matas J.A. adverts tovarious considerations affecting the applicability of s. 653 and draws anadverse constitutional conclusion when comparisons are drawn between theprocedures in a civil action for damages and the relative position of theaccused as a defendant in such an action and his position as a convicted personagainst whom an order is sought under s. 653. I do not disagree that inassessing constitutionality there is merit in such an approach, but relativeadvantages in applicable procedures cannot, in my opinion, be determinative ofvalidity where the primary consideration is a more functional one, with regardbeing had to the object of the impugned legislation and its
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connection with other admittedly valid aspects of the criminalprocess. It appears to me that in his stress on the comparisons above noted MatasJ.A. has put answer before question in remarking that "a compensationorder which is invalid as an unwarranted invasion of provincial jurisdictiondoes not become valid because of the objective in preventing a criminal fromprofiting from his crime". In my opinion, the issue before us has been metby Monnin J.A. in his dissenting reasons where he said this:
... In pith and substance section 653 is part and parcel ofthe sentencing process set out in The Criminal Code of Canada. If itwere not, the hands of our Courts would be sadly tied and the victims of crimeswould of necessity have to seek recovery of property or moneys illegally takenaway from them through civil courts on the basis that one cannot mix that whichis criminal with that which is civil and on the further basis what provinciallyappointed judges are not fit persons to deal with matters of civil law. Can onethink of a more ridiculous proposition and one bound to bring the entire legalprocess—already badly challenged—in disrepute? Distinctions for the sake ofdistinctions have no place in courts of law.
I agree with his conclusion that s. 653 is valid as part of thesentencing process.
The constitutional basis of s. 653 must, in my opinion, be heldin constant view by a judge called upon to apply its terms. It would be wrong,therefore, to relax in any way the requirement that the application for compensationbe directly associated with the sentence imposed as the public reprobation ofthe offence. Monnin J.A. mentioned this in bringing compensation, restitutionand probation into relation with one another, saying this in his reasons:
I see little or no difference between restitution andcompensation as they are described in ss. 653 and 663. Compensation must berequested by the aggrieved person at the time sentence is about to be imposedand there is case law to the effect that a request for compensation must bemade at the time of sentencing and cannot be made at a later date. Restitutioncan be ordered by the sentencing judge as a part of his total sentence if itforms part of the probation order. In ordering restitution the judge may actpursuant to a request by Crown counsel or by the aggrieved party or
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may also do so of his own free will without any request byanyone.
Restitution has often been equated with compensation exceptthat there is a special section, namely, s. 653, which deals with compensationfor loss or damage of property suffered by a victim. So much so that even thiscourt, though differently constituted, in Regina v. Butkans, 18th June1970 (not reported)—a court composed by Smith C.J.M., Dickson J.A. and myself—confirmedwhat we called in that particular case an order of restitution under s.638(2)(e) of the Criminal Code, 1953-54 (Can.), c. 51, which section is almostidentical to the existing s. 663(2)(e). In the Butkans case the courtwas actually dealing with a matter of compensation, though it had been calledan order of restitution. Was that bench acting per incuriam? I doubt it.
There is, moreover, another important aspect of s. 653 that mustbe kept in mind. The Court's power to make a concurrent order for compensationas part of the sentencing process is discretionary. I am of the view that inexercising that discretion the Court should have regard to whether theaggrieved person is invoking s. 653 to emphasize the sanctions against theoffender as well as to benefit himself. A relevant consideration would bewhether civil proceedings have been taken and, if so, whether they are beingpursued. There are other factors that enter into the exercise of thediscretion, such as the means of the offender, and whether the criminal courtwill be involved in a long process of assessment of the loss, although I do notread s. 653 as requiring exact measurement. A plea of guilty will, obviously,make the Court's task easier where it is asked to make an order of compensation,but there is no reason why an attempt to secure agreement on the amount of lossshould not be made where the conviction follows a plea of not guilty. It isprobable, of course, that the likelihood of an appeal will militate againstagreement but 1 would add that I do not regard it as a function of the criminalcourt to force agreement to enable it to make an order for compensation. Whatall of this comes to is that I agree with Matas J.A. that, constitutionalityapart, an order for compensation should only be made with restraint and withcaution.
The present case is one in which restraint and caution shouldhave been exercised in a refusal to
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make a compensation order. The aggrieved company institutedcivil proceedings, for the recovery of money and merchandise stolen from it bythe offenders, a day before criminal charges were brought against them. Itcontinued with the civil proceedings, taking steps in connection therewithwhile the criminal proceedings were in progress, and even after the offendershad pleaded guilty to theft. The aggrieved company then decided to seek acompensation order under s. 653 and a dispute arose with respect to the amountof the loss, particularly in relation to the money that was allegedly stolen.So far as appears, the civil proceedings were maintained while the applicationfor a compensation order was pursued. The civil proceedings were justifiedbecause of the desire to get a garnishment order. In all the circ*mstances, Iwould not interfere with that part of the judgment of the majority of theManitoba Court of Appeal holding that the order for compensation should nothave been made.
I wish to dwell further on the course of proceedings in this casein order to provide some guidance to trial judges on the proper application ofs. 653 and in order to make clear that s. 653 is not to be used in terrorem asa substitute for or a reinforcement for civil proceedings. Its validity isbased, as I have already said, on its association with the sentencing process,and its administration in particular cases must be limited by thatconsideration.
What emerges from the facts here is that the T. Eaton Companysought to use the criminal process as a more expeditious means of recoveringthe money lost by the fraudulent activities of the accused. Its co-operationwith the Crown during the early course of the criminal proceedings isunderstandable, but at the same time it was pursuing a civil remedy againstthe accused, and the civil proceedings had reached the stage of discovery whenthe accused came up for sentencing by the criminal court. Eaton's then joinedin the criminal proceedings as an "aggrieved person", and it becameevident immediately that the amount of the loss suffered by it was in dispute.The dispute was not resolved, as it would have been under the proceduresavailable in a civil
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court, and the order for compensation made in the criminalproceedings was somewhat arbitrary as to amount.
Section 653 does not spell out any procedure for resolving adispute as to quantum; its process is, ex facie, summary but I do notthink that it precludes an inquiry by the trial judge to establish the amountof compensation, so long as this can be done expeditiously and without turningthe sentencing proceedings into the equivalent of a civil trial or into areference in a civil proceeding. What is important is to contain s. 653 withinits valid character as part of the sentencing process and thus avoid theallegation of intrusion into provincial legislative authority in relation toproperty and civil rights in the Province. Although, as I have already noted,the Courts have recognized the wide scope of the federal power in relation tocriminal law and criminal procedure, and although there is now a broad range ofpowers in a sentencing court to deal with offenders, it nonetheless remainstrue that the criminal law cannot be used to disguise an encroachment uponprovincial legislative authority: see Attorney-General for Ontario v.Reciprocal Insurers[16];Reference re Validity of s. 5(a) of the Dairy Industry Act[17],at p. 50, aff'd sub nom. Canadian Federation of Agriculture v. Attorney-General for Quebec[18].
It must be obvious, therefore, that s. 653 is not the platformupon which to unravel involved commercial transactions in order to providemonetary redress to those entitled thereto as against an accused. The latter,too, may have a proper interest in insisting that civil proceedings be takenagainst him so that he may avail himself of the procedures for discovery and productionof documents, as well as of a proper trial of issues which go to the merit ofmonetary claims against him. Again, the criminal court cannot be expected tonor should it act under s. 653 if it would be required to interpret writtendocuments in order to
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arrive at a sum of money sought through an order of compensation.So too, it would be improper to invoke s. 653 if the effect of provinciallegislation would have to be considered in order to determine what order shouldbe made. Indeed, any serious contest on legal or factual issues, or on whetherthe person alleging himself to be aggrieved is so in fact, should signal adenial of recourse to an order under s. 653.
There looms in this case an obvious question of the effect of adiscretionary order for compensation under s. 653 upon subsequent civilproceedings by the victim against the accused, if he has not been made whole bythe order. Parliament has not purported to interfere with any right of civilrecourse which thus remains open despite s. 653. What is involved is whetherthe obtaining of an order under s. 653 (not the mere application therefor)amounts to an election against civil proceedings or whether the order goessimply to quantum if civil proceedings are later taken. I am inclined to theview of an election as being consistent with the criminal law character of s.653, but no argument was addressed to the Court on this point, the respondentbeing content with a submission in her supplementary factum that if s. 653 wasvalid, the trial judge's admitted discretion to make a compensation ordershould not have been exercised. It does not raise a constitutional issue andsince the result here does not call for its determination, I prefer to leave itopen.
I wish to advert to one further point and that is the question ofappeal from an order for compensation. The filing of such an order in theprovincial superior court does not, in my opinion, put in motion any civilproceedings other than those relating to enforcement. A compensation order,being included in the definition of "sentence" under s. 601 of the CriminalCode, is appealable as provided by that Code, and I would apply theprinciple of Pringle v. Fraser[19]to exclude any suggestion that civil appeal proceedings are open.
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Section 616 of the Criminal Code deals with the powers ofa provincial court of appeal in respect of an order for compensation andprovides for suspension of the operation of the order during the time it is appealableand until appeal proceedings, if taken, are concluded. Section 616(2) empowersthe provincial court of appeal to annul or vary a compensation order, whetheror not the conviction is quashed. It does not itself give a right of appeal, aview expressed on the then similar English legislation in Rex v. Elliott[20].It appears, therefore, that only the accused has a right of appeal againsta compensation order, a right given by s. 603(1)(b), and not the person inwhose favour the compensation order is made. This, in my view, is consistentwith the character of such an order as part of sentence.
I would, accordingly, allow the appeal, in part, set aside theorder of the Manitoba Court of Appeal in so far as it interfered with the orderfor restitution and restore that part of the composite order made by the trialjudge. In accordance with the terms of the order of this Court granting leave,the Attorney-General of Manitoba will pay the costs of the respondent in thisCourt. There will be no other order as to costs.
The judgment of Pigeon, Beetz and Pratte JJ. was delivered by
PIGEON J. (dissenting in part)—This is an appeal by leaveof this Court from a judgment setting aside orders of compensation and restitution,made under ss. 653(1) and 655(1) of the Criminal Code respectivelyagainst the respondent accused, Anne Zelensky. These orders were in favour ofThe T. Eaton Company Limited ("Eaton") which was granted leave tointervene in this appeal by order of the Chief Justice. The majority in theCourt of Appeal of Maniboba having expressed the view that s. 653 of the CriminalCode was ultra vires, notice of this constitutional question wasgiven. The Attorney General of Canada has intervened to support the constitutionalityof s. 653 and the Attorneys General of Quebec and of Alberta, to attack it.
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I find it necessary to state the facts in some detail and inchronological order. I should point out that 1 am not doing this on the basisof evidence, because none was given in this case, but on the basis ofunchallenged statements by counsel to the trial judge and, with respect to thecourse of the criminal proceedings and of the civil action by Eaton against theaccused, on the basis of statements in the reasons of Matas J.A. for themajority in appeal.
The accused is a middle-aged married woman, who for some tenyears, had been employed by Eaton as adjuster in the catalogue sales operation.As such, she had authority to direct on her signature payments by money orderup to $250 on each claim, she could also order the delivery of merchandise. OnDecember 17, 1975, the accused was turned over to the police in the Eaton'scatalogue sales office. Under charge and caution she made the followingstatement:
"It was about a year ago that I started doing this. Idon't know why. I just made the money orders out, cashed them at my bank, sentthem to my house, some of them, and later banked them. My husband told me I wasan idiot and would get caught and pay for it. There was very littlemerchandise, mostly money orders that I did. I have no idea of what amount. Itwas mostly money orders. My husband has been after me to stop. The money ordersfor Fedak and Marquardson, I just put in their address and their name. I wouldtell them the order was cancelled or whatever and the refund was coming to yourplace. I would then go to their place, pick up the money orders, sign them andcash them. Some I made out to myself and made them payable to the Royal Bank,Portage and Edmonton. During my lunch hour I would go there and deposit themtowards the loan there. Some I made out in my daughter's name or my sister'sname. I would sign them and deposit them into my husband's and my joint accountat McPhillips and Mountain. My sister, Nettie Fedak, would receive money ordersthat I sent to her house. I would always go down to her house and pick up thesemoney orders. I would tell her this was a cancelled order or something and shewas ignorant of the fact I was involved in a fraud or whatever. I don'tremember, but she may have cashed one of the money orders, but I have gone toher house after and picked up the money. That would be about the only time Iwould have done this."
The same day the accused was arrested, Eaton filed a statement ofclaim against her in the Court
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of Queen's Bench for $18,564.13 and obtained a garnishing orderunder which $10,563.50 was seized in a bank account of hers and paid intocourt. The following day, the accused and her husband were charged by thepolice with defrauding Eaton to a value of $18,000 more or less and a daylater some relatives of the accused were charged with receiving stolen goods.It also appears that the police had seized from the residence of the accusedand of a relative forty-one items of merchandise, mostly furniture and otherhousehold goods.
On February 3, 1976, the accused pleaded not guilty and thepreliminary hearing was scheduled for April 14 and 15, 1976.
On February 20, counsel for the accused requested particulars ofthe civil claim from counsel for Eaton.
On February 28, 1976, a charge of fraud was laid against anotherrelative of the accused.
On April 7, a new charge was laid against the accused, herhusband, her daughter, her son-in-law and her sister, of theft of money to theamount of $18,000 more or less and merchandise to the amount of $7,000 more orless, the property of Eaton.
On April 12, particulars of the claim in the action were suppliedby counsel for Eaton to counsel for the accused. It was stated that theselisted 111 money orders some of which were payable to the accused, to her husband,to her sister, to her daughter and to her son-in-law, for a total sum of$11,064.20 and the others were made payable to the Royal Bank of Canada in theamount of $7,486.26 which went to the credit of the accused and her husband.
On April 14, as a result of plea bargaining, the accused and herhusband elected to be tried before provincial Judge H. Collerman. They pleadedguilty to the charge of theft of money to the amount of $18,000 "more orless" and merchandise to the amount of $7,000 "more or less".All the other charges were stayed. On being asked why advance notice had notbeen given so that other cases could be scheduled for the two days reserved
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for the preliminary hearing, counsel for the Crown said:
I might indicate, your honour, that this matter has beenunder discussion for the period of approximately one month now, and I wouldcertainly not in any way indicate that there has been any dragging by eitherparty. It was just a matter of resolving issues, going in detail through the evidenceand then sitting down and having some serious talks with clients... .
... A good number of exhibits which form a crucial part ofour negotiations were not received until approximately a month ago from outeast and until they arrived nobody could really sit down and start talking.
After informing the Court that counsel for Eaton was present formaking an application for a compensation order she added:
I might also indicate at this point that as between Mr.Ornstein (counsel for the accused) and myself, at any rate, there is noagreement as to the amount, actual amount of compensation owed. And the figurethat is laid in the Information is $18,000 more or less but there is aconsiderable variance in where he stands and where I stand, and I will just apprisethe Court of that fact.
Counsel for the accused spoke again saying:
... although there is a plea of guilty to the sum of $18,000more or less, merchandise to $7,000.00 more or less, in no way is that to beconstrued as an admission by the Defendants that they are liable in the sum of$18,000.00 and $7,000.00. It is an amount of any where between $200.00 and$25.000.00 and it is something that is to be either worked out or it can beagreed upon or it could be adjudicated on by either this Court or the Court ofQueen's Bench... .
The judge interjected:
… If there is a discrepancy to that extent then I amsomewhat concerned about there being a plea of guilty entered....
Counsel for the accused ended up saying:
Now, the Defendants, by pleading guilty, have admitted thecharge of Theft of an amount of $18,000.00 more or less. We don't know how muchthat is and we want the complainant to prove how much that is. And, we arereally leaving it up to the Plaintiff to prove this claim.
Counsel for Eaton said:
These discussions may all be resolved.
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Counsel for the Crown then gave a statement of the factsincluding some details of the various fraudulent schemes whereby the money andthe merchandise had been obtained and the matter was adjourned to April 29,1976, for a pre-sentence report.
On April 28, 1976, a statement of defence was filed in the actionas to which Matas J.A. says:
… counsel for appellant said that the defence was intendedto admit liability but dispute quantum, but that is not in accord with myreading of it.
The following day Judge Collerman was informed that counsel forthe accused had refused to meet with counsel for Eaton because the latter didnot provide all the documentation that was requested in addition to the moneyorders. There was a further adjournment for medical reports on the accused'scondition. Judge Collerman was prompted to say to counsel to the accused:
... This is not a direction, perhaps, just an observation.The Police investigation has led to the charging of Theft in the approximateamount of $18,000.00 and you have, on behalf of your client, entered a plea ofguilty to that particular charge. I would assume that prior to having enteredthat plea or prior to having your client enter that plea, you must have satisfiedyourself, to some extent, at least, of the facts and of the evidence availableto the Crown supporting that charge. Otherwise, I wouldn't think that you wouldenter that plea.
That being the case, and bearing in mind that the Crown hasaccess to the specifics of the money orders, and certainly Eatons have accessto and have provided you with these specifics as to the money orders, I wouldsuggest, very strongly, that the two of you get together between now and remanddate and perhaps co-operate a little more than both of you have to date.
There is some indication before me that there is evidence tosupport the Theft of $18,547.07 in money orders. I must agree with some of whatMr. Flett has said, that with respect to the additional information that you areseeking, your client would be in the best position to provide you with thatinformation and not Eatons or counsel for Eatons.
That is merely an observation, and, perhaps we could dealwith the matter on the 27th of May.
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What then happened in the civil action is thus stated in Matas J.A.'sreasons:
April 30, 1976—Counsel for the company was servedwith a notice for discovery of documents and an appointment for examination fordiscovery of an officer of the company to be held on May 12, 1976.
May 6, 1976—Counsel for the company wrote to counselfor Anne Zelensky advising of their intention to amend the statement of claimand requesting consent to the amendments. The amendment was to add a claim forconversion of merchandise in the amount of $7,000.00 more or less and to addSteve Zelensky as a defendant in respect of the total $25,000.00. The latteralso proposed a meeting of counsel and clients to review the documentation ofamounts claimed.
May 11, 1976—Counsel for Anne Zelensky replied,reviewed the proceedings to date and advised that examination for discovery hadbeen rescheduled for June 29, 1976.
May 18, 1976—Notice of motion was filed, returnableon May 21, 1976, to compel production of documents or to have the statement ofclaim dismissed. The motion was adjourned sine die at the request ofcounsel for the company. Counsel for appellant understood that the statement ofclaim would be amended, amended statement of defence would be filed andexamination for discovery of an officer of the company would be held on June29, 1976.
In April and May, counsel for the company furnisheddocuments to appellant's counsel in support of the company's claim. Affidaviton production of documents was not filed.
The hearing on sentence took place on June 4, 1976. Judge Collermanhad a pre-sentence report and several medical reports. At the outset, he askedfor information as to the outcome of his suggestion. Counsel for the accusedsaid:
... There are still negotiations going on between counselfor both sides. There has been obtained a date for examination for discovery ofone of the officers of the Eatons Company and that will be taking place in acouple of weeks, I don't have the exact date and, however, your honour, thereis no question there is a defence filed. The defence merely questions theamount of quantum and not the liability, so this is, it's all the matter ofquantum that's still in issue. However, I can assure your honour that monieshave been paid into Court, some $12,000.00 I believe, under a garnishing order.A clear Certificate of Title of the accuseds' home has been lodged with theCourt which can always be used to raise
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any restitution. There is no question that as soon as thequantum is settled, a certain amount is fixed, that restitution will be made.The money is available for restitution, it's just a question of how much.
Counsel for Eaton replied:
... There are no negotiations going on... .
... Statement of defence admits only, paragraphs one and twosetting out the parties and it denies that the defendant Mrs. Zelensky isindebted to the plaintiff to the straight proof thereof. [sic]
Counsel for the Crown made on that subject the followingobservations:
In so far as cooperating in terms of putting Eatons backinto the position that it was in so far as restitution is concerned, I'm notgoing to get involved in the amounts or the how much. It may be thattwenty-five thousand more or less may be out by a couple of hundred dollars.The only money that was paid into Court had nothing to do with any voluntaryact of Mrs. Zelensky's.
... What I am saying is this, your honour, that the onlymoney that Eatons has in Court they have because they slapped a garnishingorder against her bank account on exactly the date that the police affected thearrest of Mrs. Zelensky, not because of any show of good faith or I am going tohelp you or I am going to assist you. As a matter of fact, in so far as makingthings easy, being cooperative and putting people back in the position thatthey would have been but for her illegal act, she stood here at the time of herguilty plea and through counsel said, we put them to the strict proof of everypenny except that it's over two hundred dollars. That's been the degree ofcooperation shown.
... If Mrs. Zelensky took the point of view that it wasn'teighteen thousand, it was only around fifteen thousand, she could pay fifteenthousand into Court, they could fight later about the three thousand. Not onepenny has voluntarily been paid over. Not one piece of merchandise hasvoluntarily been replaced.
At this point Judge Collerman remarked:
So in effect what you're saying is that the actions of theaccused after the discovery of the offence is an indication of her criminality.
Counsel for the Crown answered:
Yes, your honour, very very much so. And it continues, toright to this day it continues.
[Page 972]
While counsel for the accused was speaking, Judge Collerman said tohim:
... I am advised there were 111 money orders amounting tothe sum in question, I believe if I have it exact, $18,547.07, albeit that theInformation shows $18,000.00 more or less, but that each money order, or thetotal sum of each of the money orders upon which her endorsem*ntis shown amounts to that sum. What can you say with respect to that.
The answer was:
All I can say with respect to that, your honour, is that herposition is that certain of those money orders were legitimate and were notfraudulently or illegally obtained and it's simply a working out of the quantumand I'd rather not try to get into that, that mess at this stage.
... If there's such great certainty as to the quantum, I putit, I question why the Crown was not able to specify in the charge how much itwas, why the Crown could not say anything more than $18,000.00 more or less andthat is my only comment with regard to that, your honour.
In conclusion he said:
... I submit, with respect, that the appropriate dispositionof her case is a period of suspension or a conditional discharge followed,concurrent with probation, concurrent with counselling for both her and herhusband and if your honour is inclined to make an order of restitution, thatwill certainly be complied with; if not, there is another Court that cancertainly order restitution and that will be done.
On his being asked by the judge:
You're talking about restitution as opposed to compensation.
He answered:
No, I'm using those words interchangeably.
Counsel for Eaton concluded his submission by saying:
....I think it's in the interest of all parties that therebe no further proceedings in any Court with respect to this matter, to ordercompensation and restitution. I am authorized to say, your honour, that becausethe amount is $18,000.00 and $7,000.00 more or less, that that certainly givesyour honour a leaway and to the extent that the amount is somewhat less than$18,000.00, we take no objection to it... .
[Page 973]
Thereupon a second counsel for, the accused said after somereferences to the civil action:
I understand there is to be an amended statement of claim,an amended statement of defence in reply and an examination for discovery hasbeen rescheduled, postponed at the request of Mr. Labman (counsel for Eaton)to June the 29th and that examination is forthcoming. I submit, your honour,that I notice in the first transcript that your honour referred to amultiplicity of actions. You were concerned, your honour, about the fact thatthere is another forum dealing with this matter, and I respectfully suggestthat the Court of Queen's Bench can explore the matter thoroughly and exactamounts determined at that time.
Thereupon the Provincial Judge said, as quoted
by Matas J.A.:
Well, since you are on your feet, perhaps you can comment onthe following. I am becoming increasingly concerned about one particular area,and I feel that perhaps counsel are not being as cooperative in this Court asthey could be. I am advised that there are 111 money orders and that thesemoney orders bear the endorsem*nt of the accused Zelensky and that the totalamount of these money orders comes to eighteen thousand, seven hundred and someodd dollars. I am aware further, and 1 have heard from Mr. Labman to the effectthat legitimate purchases by Zelensky amounted to a hundred and seventy someodd dollars and that proof could be made of them. I have asked on repeatedoccasions that counsel get together for the purpose of my being better able todeal with the application for compensation in this Court, regardless of whatother application may be taken in some other forum, and there appears to havebeen very little in the way of cooperation, and I am referringspecifically from Mr. Ornstein's office. I am faced at this point in time withevidence of all those money orders endorsed by the accused amounting toeighteen thousand plus dollars, combined with, and this cannot be overlooked,combined with a plea of guilty to an offence of theft of eighteen thousanddollars more or less, plus the certain amount of merchandise that was stolen.Now bearing that in mind, and keeping in mind completely that there is anapplication in another forum and there has been an application for compensationmade before me in this Court, there is evidence before me in this Court tosupport that application. I have, short of begging counsel, I have requestedtime and time again for them to get together and come up with the figure whichthe two of them would be in agreement with, and they are no closer to agreementnow than they were at the commencement, except for
[Page 974]
the fact and I say, I have before me the plea, and I havebefore me the evidence, and I might indicate that I have given this matter anawful lot of thought over the past few weeks and I came to the conclusion thatwere the matter not improved, that is had the matter not reached some finalitythrough the cooperation of counsel, then I was going to rely on the plea ofguilty to the offence of theft, combined with the information which has beenprovided me and I am prepared on today's date to make an order with respect tocompensation. As to the amount, I will deal with that in a short while. I justfeel that there has not been the degree of cooperation that should have existedin this particular matter. I just wanted that on the record.
The trial judge then refused to allow further comment by accused'sfirst counsel and proceeded to deliver his sentence. He gave a suspended sentenceto accused's husband but he meted out to her a sentence of imprisonment for twoyears less a day. After a brief adjournment to enable the accused to regain herconsciousness, the sentence of imprisonment was completed by the addition ofone year of supervised probation. The judge then said:
Dealing with respect to the application for order ofcompensation, pursuant to the provision of Section 653, I am satisfied that acase has been made out for such an order for compensation and I am making thatorder for compensation in the sum of $18,000.00. In addition, there will be anorder for restitution of the recovered goods. That is the disposition of theCourt.
It was also specified that the two orders were made with respectto both accused.
On appeal it was first unanimously decided on October 27, 1976,that the incarceration and probation sentence should be affirmed. Later, onNovember 29, a majority judgment was delivered by Matas J.A., Hall J.A. andO'Sullivan J.A. concurring, Monnin J.A. and Guy LA. dissenting. Besidesstatements of the facts, the reasons on both sides were devoted mostly to aconsideration of the constitutionality of s. 653 of the Criminal Code whichwas challenged by counsel for the accused and defended by counsel for theAttorney General of Canada who has intervened in the case. The majorityexpressed the view that s. 653 was ultra vires, the minority that it wasvalid. However, the majority also found, contrary to the
[Page 975]
conclusion of the dissenting judges, that in any case the ordersof compensation and of restitution had been improperly made. Matas J.A. afterciting a comment made in England under somewhat different statutory provisions,said:
… see Dashner, supra (R. v. Dashner, 1973 CanLII 1372 (BC CA), [1974] 2 W.W.R.11) at p. 13, where the court approved the following quotation from Reginav. Stewart (1968), 1968 CanLII 803 (BC CA), 63 W.W.R. 442 at p. 445, [1968] 4 C.C.C. 54:
… It must be remembered, however, that it is most importantthat the sanctions of the criminal law and its administration should not beused, or be permitted to appear to be used, for the purpose of enforcing civilobligations...."
Counsel for the Crown said, in this court, that possiblythe learned provincial court judge was frustrated because counsel had not cometo agreement on the matters in dispute. This is not a justification for makingan order for compensation or restitution. Courts are provided to decidedisputes where parties cannot agree. In my view, it is improper to use thepowers of the criminal process as means of enforcing a financial settlement.
In my respectful view, in light of the circ*mstancesoutlined above, the learned trial judge was wrong in exercising his discretionin making an order under sec. 653(1) and was wrong in ordering restitutionunder sec. 655(1).
If it should turn out that appellant's claims are frivolous,the Court of Queen's Bench can take care of that matter by its power to awardcosts against an unsuccessful party, and by its power to allow interest to asuccessful party where payment of a just debt has been improperly withheld.
In dissent Monnin J.A. said:
The transcripts of the proceedings on April 14th, 29th andJune 4th, 1976, consisting of more than 125 pages, are no masterpiece ofclarity. Counsel seemed to have confused the Court more than helped it toobtain the precise information in order to arrive at the exact amount of thetheft. Throughout the proceedings there appears to have been a strong reticenceon the part of various counsel for the accused who appeared throughout thethree hearings and on the part of various counsel appearing on behalf of T.Eaton Co. to come out clearly with the exact facts. The Court was not providedwith a positive statement of the exact amount involved, although Collerman,P.J. attempted to the best of his ability to get the facts from counsel. Thatis a factor in this case and counsel are responsible for that situation.
[Page 976]
Nevertheless, it is clear in my mind that police investigationhas led to a charge of theft of money in the approximate amount of $18,000.00and the theft of merchandise in the approximate amount of $7,000.00 and thatthroughout the proceedings, advised by counsel, the accused entered into a pleaof guilty of these approximate amounts.
Words mean something. Persons do not lightly plead guilty totheft of moneys and merchandise. When they admit to theft of such largeamounts, even if the amount is "more or less", he or she must meanit, otherwise the entire system of entering pleas in criminal matters isfrustrated and appears ridiculous. The plea entered dealt with theft of moneysin the amount of $18,000.00 "more or less" and theft of merchandisein the amount of $7,000.00 "more or less". Counsel for the accusedand the aggrieved person failed to supply the Court with the exact amount andthey cannot be surprised if, at the conclusion of three hearings, they findtheir clients with an order of compensation for $18,000.00 and an order ofrestitution of the goods recovered in the amount of $7,000.00, this despite thefact, that counsel for the accused indicated that some of the goods recoveredmay have been legitimately purchased by his client. That could easily have beenascertained before the plea and before the hearings.
In my view the last words of Monnin J.A. indicate what shouldhave been done. A judge has a discretion to exercise when a plea of guilty istendered, he is not bound to accept it: Adgey v. The Queen[21].When counsel for the accused took the position that, on account of thewords "more or less", the plea of guilty meant a plea of guilty toanything between $200 and $18,000 and implied no admission of the amount stolenand counsel for the Crown on her part said there was a considerable variance inwhere he stood and where she stood, it should have been made clear that a pleaof guilty means a plea of guilty of a definite offence. Where the offence istheft of money, the amount stolen is an essential element (Lake v.The Queen[22]). Thisdoes not mean that the words "more or less" vitiate the charge. Thetrial judge was quite correct in his view that those words imply only a narrowmargin. However, what was said in this case made it clear that the accused did
[Page 977]
not acknowledge having stolen money and merchandise in theamount of approximately $25,000, but admitted only having stolen somemerchandise and a substantial sum of money the amount of which she wasunwilling to admit. The trial judge was quite correct in accepting thesubmission by counsel for the Crown that this attitude of the accused was proofof her continuing dishonesty, in other words, that she was unrepentant.
However, no matter how much this made accused's caseunsympathetic and also reflected against counsel who co-operated in suchtactics, it could not constitute a proper foundation for a compensation order.It is true that on account of its discretionary nature the sentencing processis traditionally permitted to proceed largely on the basis of informationrather than on the basis of evidence. But the special nature of orders forcompensation and for restitution requires that they be made only on the basisof evidence by admission or otherwise. What counsel for the accused said whensuggesting a suspended sentence might by itself have been taken as a consent tothe making of the orders. However, what was subsequently said by the secondcounsel made it clear that the accused was definitely unwilling to admit anyindebtedness and intended to defend the civil action. It was an ill-conceivedposition: this was not a claim for damages on which liability may be admittedand the quantum debated; it was a matter of theft of definite sums of money andmerchandise and no award of interest and costs would ever cover more than a fractionof the additional injury inflicted by stubbornly defending the civil action. Ifthe accused was led to believe she could expect a suspended sentence with thepossibility of holding up restitution by defending the civil proceedings, shewas extremely ill-advised and the shock she suffered when sentenced to twoyears is readily understandable. All this, however, cannot justify the makingof a compensation order without clear evidence of a definite amount byadmission or otherwise.
With respect to the order for restitution, the situation issomewhat different. There were no civil proceedings pending, all themerchandise that
[Page 978]
the accused was charged with having stolen was seized by thepolice and nothing was said which might indicate that the plea of guilty to thecharge of theft of merchandise to the amount of $7,000 more or less did notcover each of the articles seized. It should also be observed that this orderof restitution was made under a section of the Code, theconstitutionality of which was not disputed. I can see no reason for settingaside the order for restitution and I will note that the making of such orderis not discretionary as the order for compensation, but is mandatory in thecase specified in s. 655(1). I would therefore restore the order ofrestitution.
I have noted that in concluding the reasons of the majority MatasJ.A. said:
The goods recovered shall remain in the custody of thepolice and the certificate of title shall remain with the court pending finaldisposition of the civil proceedings commenced by the company.
This appears to have been overlooked in the drafting of theformal order and to remedy this omission, I would direct that the judgment ofthe Court of Appeal be varied, not only to restore the order of restitution butalso to provide that the certificate of title filed in the trial Court remainwith the Court pending final disposition of the civil proceedings commenced byEaton.
Usually this Court does not rule on constitutional questions whennot necessary for the disposition of the case at hand. It has, however,sometimes departed from this practice when it appeared to be desirable in thepublic interest, such as in Provincial Secretary of Prince Edward Island v.Egan[23], andSwitzman v. Elbling[24]. Inthe present case the constitutional question has been fully argued with theassistance of counsel for the attorneys general of Canada and of severalprovinces and we know there are other cases in which the Courts are awaitingour judgment on the constitutional question in respect of importantapplications under s. 653 of the Criminal Code. It is thereforedesirable
[Page 979]
that a final decision be issued promptly on its constitutionalvalidity. Section 653 in its present form reads:
653. (1) A court that convicts an accused of an indictableoffence may, upon the application of a person aggrieved, at the time sentenceis imposed, order the accused to pay to that person an amount by way ofsatisfaction or compensation for loss of or damage to property suffered by theapplicant as a result of the commission of the offence of which the accused isconvicted.
(2) Where an amount that is ordered to be paid undersubsection (1) is not paid forthwith the applicant may, by filing the order,enter as a judgment, in the superior court of the province in which the trialwas held, the amount ordered to be paid, and that judgment is enforceableagainst the accused in the same manner as if it were a judgment renderedagainst the accused in that court in civil proceedings.
(3) All or any part of an amount that is ordered to be paidunder subsection (1) may, if the court making the order is satisfied thatownership of or right to possession of those moneys is not disputed byclaimants other than the accused and the court so directs, be taken out ofmoneys found in the possession of the accused at the time of his arrest.
Subsections 1 and 2 have their origin in s. 836 of the CriminalCode of 1892 which became s. 1048 after the 1906 statute revision. Thesource is given as s. 4 of The Forfeiture and Felony Act, 1870 (33-34 Vict.U.K. c. 23). This was a United Kingdom statute which was not previouslyin force in Canada. The maximum amount which could be awarded was a hundredpounds. In the 1892 Criminal Code this was made a thousand dollars. Thelimitation was removed when the present Criminal Code was enacted (see Martin'sCriminal Code, 1955, under s. 628).
As to the nature of the enactment, it obviously deals with amatter that is prima facie within provincial jurisdiction"satisfaction or compensation for loss of or damage to property"."Property and Civil Rights" is one of the most important heads ofprovincial jurisdiction enumerated in s. 92 of the B.N.A. Act. Counselfor the Attorney General of Quebec has also referred us to Halsbury's
[Page 980]
Laws of England. In the third edition, (vol. 10, p. 271)under the caption "Distinction between criminal and civilproceedings" one reads:
A civil proceeding has for its object the recovery of moneyor other property, or the enforcement of a right for the advantage of theperson suing, while a criminal proceeding has for its object the punishment ofa public offence. Criminal proceedings cannot be used as a means of recoveringa civil debt in the absence of express provision to that effect.
In Ross v. Registrar of Motor Vehicles[25],a majority in this Court agreed with the statement (at p. 13) that:"It should now be taken as settled that civil consequences of a criminalact are not to be considered as 'punishment' so as to bring the matter withinthe exclusive jurisdiction of Parliament."
It should also be noted that under s. 92, head 14, the provinciallegislatures have exclusive jurisdiction over:
The Administration of Justice in the Province, including theConstitution, Maintenance, and Organization of Provincial Courts, both of Civiland of Criminal Jurisdiction, and including Procedure in Civil Matters in thoseCourts.
Unlike practically every other procedural provision of the CriminalCode, the remedy contemplated in s. 653 has the characteristics of a civilremedy. It is available only "upon the application of a personaggrieved". It is not sanctioned by a penalty but it is "enforceable... as ... a judgment rendered ... in civil proceedings". In short thesubstance of s. 653 is that it enables a person who has suffered loss of ordamage to property by the commission of an indictable offence, to obtain fromthe court of criminal jurisdiction a civil judgment against the offender. Itprovides for what is known in the law of France as "constitution de partiecivile" (civil third party claim) before the criminal court, aprocedure which is there so frequently resorted to that an important proportionof tort cases, including malpractice claims, come before the penal, rather thanthe civil jurisdiction. Of course s. 653 being limited to
[Page 981]
crimes against property has a much narrower scope but, ifconstitutionally valid, it would be susceptible of the same extension.
I do not think a sum of money ordered to be paid under s. 653 canbe considered as a "fine", so as to bring the enactment within theprinciple of the decision in City of Toronto v. The King[26].In his Dictionary of English Law Lord Jowitt says: "In criminallaw, a fine is a sum of money ordered to be paid to the Crown by an offender,as a punishment for his offence". In the Oxford Dictionary themeaning of compensation is given as obsolete. The words used in the enactment,namely: "satisfaction or compensation" clearly indicate that what iscontemplated is not punishment to be suffered in addition to the civilobligation.
It appears to me that, if we choose to express an opinion on theconstitutional validity of s. 653, we cannot leave undecided the nature andeffect of the orders it purports to authorize. It is necessary to decidewhether those orders are intended to be in substitution for the civil remedy orin addition to it. In the latter case, the section would be valid as providingfor punishment. But, in my view, those orders are clearly intended to be insubstitution for the civil remedy, not in addition to it and it is apparentthat this was how the matter was considered by all parties concerned in thepresent case.
In this respect, I would point out that it is only by exceptionthat punitive damages can be awarded and they are opposed to "compensatory"damages which are governed by the principle of restitutio in integrum, (seeMcGregor On Damages, 13th ed., p. 303). Satisfaction and compensationboth imply restitutio and are opposed to any idea of punishment. They thereforerelate to the civil consequences of a criminal act not to punishment therefore[sic]. This is not a case where punitive damages could be awarded, (see Bastedv. Grafton and Wilde[27]). Section10 of the Criminal Code cannot prevail over the clear intent of s. 653and allow the creditor who has obtained an order of
[Page 982]
compensation a second recovery before a court of civiljurisdiction.
The question therefore, as I see it, is whether Parliament'sjurisdiction over "The Criminal Law, ... including the Procedure inCriminal Matters" extends to procedure in civil matters arising out of thesame set of facts that constitute a criminal offence. In my view this questionmust be answered in the negative. The authority to define crimes does not includethe authority to legislate concerning the purely civil consequences of thefacts that constitute a crime. Similarly the authority to legislate respectingprocedure in criminal matters does not include the authority to legislate onprocedure in civil matters even when the same set of facts are involved in thecriminal offence as in the civil claim. In this respect one should note that s.10 of the Criminal Code reads:
10. No civil remedy for an act or omission is suspended oraffected by reason that the act or omission is a criminal offence.
It also should be noted that a finding of guilt under the CriminalCode has been held not to be conclusive from a civil point of view: La Foncièrev. Perras[28].
This does not decide the issue of constitutionality in the presentcase because an important aspect of the constitutional division of legislativeauthority remains to be considered namely, the extent of the federal ancillarypower. In the Fish Canneries case (Attorney-General for Canada v.Attorney-General for British Columbia[29]) LordTomlin said at p. 118:
Questions of conflict between the jurisdiction of theParliament of the Dominion and provincial jurisdiction have frequently comebefore their Lordships' Board, and as the result of the decisions of the Boardthe following propositions may be stated:‑
(1) The legislation of the Parliament of the Dominion, solong as it strictly relates to subjects of legislation expressly enumerated ins. 91, is of paramount authority, even though it trenches upon matters assignedto the provincial legislatures by s. 92: see Tennant v. Union Bank ofCanada, [1894] A.C. 31.
[Page 983]
(2) The general power of legislation conferred upon theParliament of the Dominion by s. 91 of the Act in supplement of the power tolegislate upon the subjects expressly enumerated must be strictly confined tosuch matters as arc unquestionably of national interest and importance, andmust not trench on any of the subjects enumerated in s. 92 as within the scopeof provincial legislation, unless these matters have attained such dimensionsas to affect the body politic of the Dominion: see Attorney-General forOntario v. Attorney-General for the Dominion, [1896] A.C. 348.
(3) It is within the competence of the Dominion Parliamentto provide for matters which, though otherwise within the legislativecompetence of the provincial legislature, are necessarily incidental toeffective legislation by the Parliament of the Dominion upon a subject oflegislation expressly enumerated in s. 91: see Attorney-General of Ontariov. Attorney-General for the Dominion, [1894] A.C. 189; and Attorney-Generalfor Ontario v. Attorney-General for the Dominion, [1896] A.C. 348.
(4) There can be a domain in which provincial and Dominionlegislation may overlap, in which case neither legislation will be ultra viresif the field is clear, but if the field is not clear and the two legislationsmeet the Dominion legislation must prevail: see Grand Trunk Ry. of Canada v.Attorney-General of Canada, [1907] A.C. 65.
It should perhaps be noted that in para. 3, the words used are"necessarily incidental", but, in some of the cases referred to, onealso finds the expressions "truly ancillary" and "properly ancillary"which were obviously taken as synonymous.
This ancillary power doctrine was applied by this Court inprocedural matters under the Criminal Code. In AttorneyGeneral for Quebec v. Attorney General for Canada[30],Taschereau J., as he then was, said (at p. 604), after referring to thejudgment I have just mentioned:
It follows as a result of this jurisprudence which isapplicable to the present case, that section 770 of the Criminal Code, althoughnot being strictly legislation in relation to criminal law and procedure, isnevertheless within the competence of the Dominion of Canada, on account of itsincidence upon criminal law and procedure. And in such a case, the field beingoccupied, the provincial legislation becomes inoperative.
[Page 984]
Kerwin J., the other judge who wrote in the case, similarly said(at p. 608):
It is sufficient to say that this enactment is necessarilyincidental to the power to legislate upon criminal law and procedure asallotted to Parliament by head 27 of section 91 of The British North AmericaAct,
The Criminal Law, except the Constitution of Courts ofCriminal Jurisdiction, but including the Procedure in Criminal Matters.
I cannot find anything which would make it possible for me toconsider subss. (1) and (2) of s. 653 of the Criminal Code asnecessarily incidental to the full exercise by Parliament of its authority overcriminal law and criminal procedure. A compensation order is nothing but acivil judgment. As DesBrisay C.J.B.C. said in a passage quoted by Matas J.A. (R.v. Scherstabitoff[31]):
… I think it is perfectly clear that the definition ofthe word "sentence" in s. 628(1) is placed there for the purpose ofenabling an appeal to be taken on such an order as this, which is adiscretionary order which might otherwise have been said to not have been .appealable.Apart from that, I do not think that it is part of the sentence....
I should point out further that a compensation order under 653(1)is not of the same nature as a probation order which includes, under s.663(2)(e), a condition that the accused shall:
(e) make restitution or reparation to any person aggrievedor injured by the commission of the offence for the actual loss or damagesustained by that person as a result thereof;
I do not consider it desirable to comment on the judgments whichwere cited to us respecting the scope of such probation orders. I will onlynote that they do not become civil judgments to be executed at the diligence ofthe creditor by civil process. Failure to comply is an offence under s. 666(1)and, in addition, a suspended sentence may be revoked.
[Page 985]
I should further say that the provisions of s. 653(3) also appearto me to be of a different character than subss. (1) and (2) under which thecompensation order becomes a civil judgment. Subsection (3) has its origin in adifferent section of the previous Criminal Code namely, s. 1049,traceable to the old Larceny Act. In so far as this deals with moneysfound in the possession of the accused at the time of his arrest, it appears tonie to be properly incidental to criminal procedure. The arrest of a personsuspected of crime, a search of his person and the detention of money found inhis possession are all part of the normal criminal process. The properdisposition of money thus seized is therefore a necessary part of the criminalprocedure, just as the adjudication on the guilt or innocence of the accused. Iwould therefore have no hesitation in holding valid a compensation orderlimited to what is contemplated in subs. (3).
Similarly I see no reason for putting in doubt the constitutionalvalidity of s. 655 dealing with the disposition of property that is before theCourt at the time of a criminal trial. It is an incidental part of the criminalprocess to bring before the Court or to put within its control the corpus delicti.This makes it necessary to provide for the proper disposition of suchthings when the trial is over and I consider it clear that it is part of theproper scope of criminal procedure. Even if it could possibly be left to bedetermined by the action of a civil court, it would be unreasonable to deny thepractical necessity for an immediate disposition by the criminal court which isproperly seized of the question as an incident of the adjudication over thecriminal accusation.
Counsel for the Attorney General of Canada contended that, if anyof the various provisions of the Criminal Code dealing with civilaspects of crime was valid, they must necessarily all be valid. I must confessto some surprise at such an assertion which I find entirely unsupported byauthority and totally at variance with the traditional approach which is to askwhether the legislature would have enacted the impugned provisions without theothers, (Toronto Corporation v. York
[Page 986]
Corporation[32], atp. 427). Here no elaborate consideration is required to answer this particularquestion, the provisions are of diverse origin and they are not interlocking.Some provisions of the Criminal Code may not be severable but such isnot the case for s. 653(1) and 653(2). The sentencing process will not beaffected if the criminal courts are prevented from issuing, at the instance ofan aggrieved person, compensation orders in the nature of civil judgments to beexecuted by civil process.
Matas J.A. has underlined some of the difficulties inherent inthis power of issuing civil judgments in a summary way without discovery etc.Much more could be said, however we must not forget that it is not for theCourts to pass judgment on the wisdom of the legislation. In adjudicating onthe constitutional validity we are concerned solely with the properinterpretation of the constitutional division of authority. Furthermore, thejurisdiction contemplated in s. 653 is discretionary and the remedy for thedifficulties lies in the exercise of this discretion: whenever it would be unfairto the accused to issue a compensation order, the duty of the court is torefuse to issue it.
Another aspect mentioned by Matas J.A. is the somewhat indefinitedoctrine that the criminal process should not be resorted to for the purpose ofseeking a civil remedy. I will refrain from reviewing authorities at thispoint. The cases are all cited in Wilson J.'s judgment Re State of Nebraskaand Morris[33] onwhich I express no opinion. All I will say is that the present case, likeseveral other previous decisions cited to us, shows that the prospect ofobtaining in a summary way from the court of criminal jurisdiction an order ofcompensation equivalent to a judgment on a civil action is an open invitationto resort to the criminal process mainly for the purpose of obtaining the civilremedy, especially in cases of crime against property committed by personsagainst whom a civil condemnation is likely to be of some practical
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value.
For all the above reasons I would hold s. 653(1) and (2) to be ultravires save to the extent contemplated in s. 653(3).
As previously stated, I would allow the appeal and order that thejudgment of the Court of Appeal be varied to restore the order of restitutionof the merchandise seized and also to provide that the certificate of titlefiled in the trial Court remain with the Court pending final disposition of thecivil proceedings commenced by Eaton. In accordance with the terms of the orderof this Court granting leave, the Attorney-General of Manitoba will pay the costsof the respondent in this Court. There will be no other order as to costs.
Appeal allowed in part; order of Court of Appealaffirmed in so far as it set aside the order for compensation but varied so asto reinstate that part of the composite order directing restitution.Declaration made that s. 653 of the Criminal Code is valid, PIGEON, BEETZand PRATTE JJ. dissenting as to s. 653(1) and (2).
Solicitor for the appellant: Deputy Attorney General ofManitoba, Winnipeg.
Solicitors for the respondent: D. A. Yanofsky &Assoc., Winnipeg.
