TREMBLAY, J.C.P.Q.:—Je partage l’avis de monsieur le juge Montgomery.
PRATTE, J.:—Je partage l’opinion de Monsieur le juge Montgomery.
CASEY, J.:—I agree with Mr. Justice Montgomery.
MONTGOMERY, J.:—This is an appeal from a judgment of the Court of Queen’s Bench, Crown Side, for the District of Montreal, setting aside the writ of prohibition whereby appellant had stayed proceedings against him in the Court of Sessions of the Peace for the District of Montreal, one of the respondents herein.
The charge before the Respondent Court with which we are here concerned was laid on April 11, 1961, by the respondent Waechter, an officer of the Department of National Revenue, under Section 132(1) of the Income Tax Act, R.S.C. 1952, c. 148. It is very long, containing eight counts, and is directed against Edifice Lafleur Ltée as well as against the appellant. It concludes with the following paragraph:
“Conformément à l’Article 132(2) de ladite Loi, le Procureur Général du Canada, pour les fins de cette poursuite, choisit de procéder par voie de mise en accusation.’’
The two accused were summoned to appear before the Respondent Court on April 26th, but the summons did not contain the paragraph above quoted. When they appeared, counsel for the prosecution produced a document dated April 12th signed by the Attorney General for Canada (joint case, pp. Ila-12) consenting to the prosecution of the accused upon indictment. The preliminary enquiry was fixed for May 19th, but proceedings were subsequently suspended by an application made for a writ of prohibition in the Superior Court. Counsel for the prosecution declined the jurisdiction of that court to issue the writ and, after prolonged litigation, the Supreme Court held by judgment dated May 11, 1964, that the Superior Court has no jurisdiction to restrain criminal proceedings by writ of prohibition ([1964] S.C.R. 412).
On May 21, 1964, appellant again applied for a writ of prohibition, this time to the Court of Queen’s Bench, Crown Side, and the issue of the writ was ordered by judgment dated June 12th. This writ was set aside by the judgment a quo.
The present charge is one of seven similar charges laid against appellant. It appears that similar proceedings have been taken on each charge, and, by agreement between the parties, the judgment that we are to render on this appeal will be applied to all (Joint case, p. 5).
Both in the court below and before us, appellant attacked the Jurisdiction of the Respondent Court primarily on the ground that the Attorney General had not validly made election to pro- secute appellant upon indictment in accordance with subsection
(2) of Section 132 of the Income Tax Act. This reads as follows:
“Every person who is charged with an offence described by subsection (1) may, at the election of the Attorney General of Canada, be prosecuted upon indictment and, if convicted, is, in addition to any penalty otherwise provided, liable to imprisonment for a term not exceeding 5 years and not less than 2 months.”
It will be noted that the election of the Attorney General was expressed in two ways : firstly, by the above-quoted paragraph in the charge and, secondly, by the ‘‘consent’’ filed when the accused appeared.
As regards the notice in the charge, it is conceded that the respondent Waechter did not himself have authority to make the election, and he did not profess to have such authority but rather declared that the Attorney General so elected. It is appellant’s argument that, the election not having been validly made when the charge was laid, the accused were entitled to presume that they were being prosecuted by summary conviction proceedings and that it was subsequently too late for the Attorney General to proceed by way of indictment. I agree with the trial judge, who has dealt with the question at some length, that it was competent for the Attorney General to signify his election to prosecute upon indictment when the accused first appeared. Subsection (2) of Section 132 refers to ‘‘every person who is charged with an offence described by subsection (1).’’ I agree with the trial judge that this suggests that the election is to take place after the accused is charged.
The authorities cited on behalf of appellant relate to statutes which make the consent of the Attorney General a condition precedent to prosecution and these have, in my opinion, no application. See on the other hand the decision of the Supreme Court cited by the trial judge, R. v. Karpinski, [1957] S.C.R. 343. This was a prosecution for leaving the scene of an automobile accident, under Section 221 of the Criminal Code. The Crown elected to proceed summarily but, after the accused had pleaded not guilty, withdrew the charge and laid a new information, electing to proceed by way of indictment. The accused was convicted, and the Supreme Court, reversing the decision of the Ontario Court of Appeal, held that the conviction was valid. In the present case, there seems to have been nothing that would have prevented the prosecution from withdrawing the charge and starting anew, but I see no reason why it should have done so. I cannot agree that an invalid election to proceed by indictment is the equivalent of an election to proceed by way of summary conviction.
The situation might be different had appellant pleaded guilty to the charge before the Attorney General validly elected to proceed upon indictment. It might then have been too late for the prosecution to make this election, but I cannot agree that the mere appearance of appellant before a magistrate so seized the magistrate with a charge tryable on summary conviction that the election could not thereafter be made. See in this connection our recent decision in Richstone Bakeries Ltd. v. Court of Sessions of the Peace (Montreal No. 8840, judgment dated January 20, 1966), where it was held that a plea of not guilty did not so seize the magistrate receiving it as to deprive another magistrate of jurisdiction to try the charge.
As regards the form of the election made by the document produced at the first appearance of the accused, I agree that it is not happily worded, because it takes the form of a consent rather than an election. It does not, however, appear that the wording could have given rise to any misunderstanding or prejudice to the accused.
Subsidiarily, it is argued on behalf of appellant that Section 132(2) is unconstitutional, it being a violation of the Canadian Ball of Rights (8-9 Eliz. II, ce. 44, Part I) and particularly of ‘ ‘the right of the individual to equality before the law and the protection of the law’’ (Section 1(b)). I note that it is not contended that the trial judge should have given an interpretation to Section 132(2) that does not violate the Canadian Bill of Rights, no such interpretation being suggested.
I cannot conceive of a system of enforcing the law where someone in authority is not called upon to decide whether or not a person will be prosecuted for an alleged offence. Inevitably there will be cases where one man is prosecuted while another man, perhaps equally guilty, goes free. A single act, or series of acts, may render a person liable to prosecution on more than one charge, and someone must decide what charges are to be laid. If an authority such as the Attorney General can have the right to decide whether or not a person shall be prosecuted, surely he may, if authorized by statute, have the right to decide what form the prosecution shall take. I cannot see that the situation is altered because Section 132(2) provides for a minimum term of imprisonment. I note that there is no suggestion of bad faith on the part of the Attorney General in making the election.
Finally, counsel for appellant challenged the jurisdiction of the judge who set aside the writ. The petition for the writ is addressed as follows:
“A L’HONORABLE COUR DU BANC DE LA REINE (JURIDICTION CRIMINELLE) OU A TOUS JUGES DE LA COUR SUPERIEURE SIEGEANT COMME JUGES DE LA DITE COUR DANS ET POUR LE DISTRICT DE MONTREAL.”
It is acknowledged that both the judge who authorized the issue and the one who set it aside were judges of the Superior Court acting as Judges of the Court of Queen’s Bench, Crown Side, in accordance with the second paragraph of Section 185 of the Courts of Justice Act, R.S.Q. 1941, c. 15 (now replaced by R.S.Q. 1964, ce. 20, Section 61), which reads as follows:
“For all purposes of the administration of justice in criminal matters in first instance, the judges of the. Superior Court shall act as judges of the Court of King’s Bench, shall preside over that court in the various districts, and shall, in such capacity, have such jurisdiction and such powers as are given them by competent authority.”
Although appellant originally elected to proceed before such a judge, he now maintains that judges of the Superior Court, not having been appointed judges of the Court of Queen’s Bench by Federal authority, have no power to act as such. Respondent’s answer to this is, firstly, that Section 185 essentially reproduces the provisions of a pre-Confederation statute (C.S.L.C. 1861, ce. 77, Section 72) and, secondly, that by Order of the Governor General in Council, P.C. 1964-1546, dated October 8, 1964, and published in the Canada Gazette on October 31, 1964, each judge of the Superior Court for the Province of Quebec was appointed to be ex officio a judge of the Court of Queen’s Bench, Crown Side.
I do not deem it necessary to consider this question further, because it is evident that the authority of the judge who set aside the writ was at least as good as that of the judge who issued it. It would therefore be futile for us to set aside a judgment that had set aside a writ that was invalid in the first place. Counsel for appellant seems to have recognized this and asks that, if we find lack of jurisdiction, we dismiss the charge for failure of the prosecution to proceed with due diligence. I cannot accept this suggestion, because the delays have been primarily of appellant’s making.
I would dismiss the appeal. Respondents asks for costs, but it appears from Section 589(3) of the Criminal Code that we have no authority to allow this.
RIVARD, J.:—Je partage l’opinion de M. le Juge Montgomery. Pour les motifs qu’il exprime dans ses notes et auxquels je souseris, Je conclurais comme lui.