R. v. Zelensky, T. Eaton Co. Ltd. and Attorney General of Canada et al., (1978) 21 N.R. 372 (SCC)

• Judge: Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 01, 1978
• Jurisdiction: Canada (Federal)
• Citations: (1978), 21 N.R. 372 (SCC);[1978] 3 WWR 693;[1978] ACS no 48;[1978] 2 SCR 940;2 WCB 320;[1978] CarswellMan 51;2 CR (3d) 107;86 DLR (3d) 179;21 NR 372;1978 CanLII 8 (SCC);41 CCC (2d) 97;[1978] SCJ No 48 (QL)

R. v. Zelensky (1978), 21 N.R. 372 (SCC)

MLB headnote and full text

R. v. Zelensky, T. Eaton Co. Ltd. and Attorney General of Canada et al.

Indexed As: R. v. Zelensky, T. Eaton Co. Ltd. and Attorney General of Canada et al.

Supreme Court of Canada

Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.

May 1, 1978.

Summary:

This case arose out of a charge of theft of money and merchandise against a former employee of the T. Eaton Co. Ltd. The accused pleaded guilty. The trial judge made an order for restitution of certain stolen goods. In addition, on the application of T. Eaton Co. Ltd. the trial judge made a compensation order against the accused in the amount of $18,000.00 pursuant to s. 653 of the Criminal Code of Canada. The accused appealed to the Manitoba Court of Appeal.

The Manitoba Court of Appeal set aside both the compensation order and the restitution order because they should have been refused in the circumstances. In addition, the Manitoba Court of Appeal stated that s. 653 respecting compensation orders was invalid and beyond the legislative competence of the Parliament of Canada. The judgment of the Manitoba Court of Appeal is reported at [1977] 1 W.W.R. 155. The Crown appealed to the Supreme Court of Canada.

The Supreme Court of Canada allowed the appeal in part and restored the order for restitution made against the accused. The Supreme Court of Canada held that s. 653 of the Criminal Code was constitutionally valid because a compensation order is a valid part of the criminal sentencing process - see paragraph 25. The Supreme Court of Canada agreed with the Manitoba Court of Appeal that in the circumstances the application for a compensation order should be refused - see paragraph 28.

Pigeon, Beetz and Pratte, JJ., dissenting in part, in the Supreme Court of Canada, would have held that the compensation order was invalid because s. 653 of the Criminal Code was beyond the legislative competence of the Parliament of Canada. Pigeon, J., stated that s. 653 was prima facie within provincial jurisdiction under the heading "property and civil rights" in s. 92(13) of the British North America Act - see paragraph 80. Pigeon, J., stated that a compensation order under s. 653 "is nothing but a civil judgment" - see paragraph 92.

Constitutional Law - Topic 6440

Enumeration in s. 91 of the British North America Act, 1867 - The criminal law (s. 91(27)) - General principles - The Supreme Court of Canada stated that the legislative competence of the Government of Canada respecting criminal law and criminal procedure is necessarily an expanding field - See paragraph 11.

Constitutional Law - Topic 6538

Enumeration in s. 91 of the British North America Act, 1867 - Criminal law - Sentencing - Compensation order - Direction (to accused) for compensation of a victim under s. 653 of the Criminal Code - Whether s. 653 was within the legislative competence of the Parliament of Canada - The Supreme Court of Canada held that s. 653 was constitutionally valid - The Supreme Court of Canada stated that s. 653 was a valid part of the criminal sentencing process - See paragraph 25.

Criminal Law - Topic 5636

Sentence - Punishments - Compensation order (against accused) in favour of a victim under s. 653 of the Criminal Code - The Supreme Court of Canada stated that an application for compensation must be directly associated with the sentence imposed "as the public reprobation of the offence" (see paragraph 26) - The Supreme Court of Canada stated that a compensation order was a part of the criminal sentencing process - See paragraph 25.

Criminal Law - Topic 5636

Sentence - Punishments - Compensation orders under s. 653 of the Criminal Code - The Supreme Court of Canada stated that an order for compensation is discretionary and should be made with restraint and caution - See paragraph 27.

Criminal Law - Topic 5639

Sentence - Punishments - Compensation orders under s. 653 of the Criminal Code - Circumstances when compensation order should be refused - The accused pleaded guilty to a charge of theft from T. Eaton Co. Ltd. - On the day before the charge was laid Eaton's commenced a civil action against the accused, a former employee, for recovery of stolen money and merchandise - The civil proceedings were maintained while Eaton's applied during the criminal proceedings for a compensation order - The Supreme Court of Canada held that in such circumstances a compensation order should be refused - See paragraph 28.

Criminal Law - Topic 5639

Sentence - Punishments - Compensation orders under s. 653 of the Criminal Code - Circumstances when a compensation order should be refused - The Supreme Court of Canada stated that a compensation order should not be made where the amount of compensation cannot be easily determined or where serious questions of law or fact must be resolved - See paragraphs 31 and 32 and 74.

Criminal Law - Topic 5642

Sentence - Punishments - Compensation orders under s. 653 of the Criminal Code - Appeals - The Supreme Court of Canada stated that only the accused has a right of appeal against a compensation order - The Supreme Court of Canada stated that a compensation order does not put in motion any civil proceedings other than those relating to enforcement of the order - See paragraphs 34 and 35.

Criminal Law - Topic 4226

Procedure - Pleas - Acceptance of a guilty plea - The Supreme Court of Canada stated that a judge is not bound to accept a guilty plea - See paragraph 73.

Criminal Law - Topic 1647

Theft - Elements of charge of theft - Proof of amount stolen - The Supreme Court of Canada stated that the amount stolen is an essential element of the offence of theft of money - See paragraph 73.

Cases Noticed:

Toronto v. The King, [1932] A.C. 98, refd to. [para. 9].

In re Board of Commerce Act, 1919 and the Combines and Fair Prices Act, 1919, [1922] 1 A.C. 191, refd to. [para. 11].

Attorney-General of Ontario v. Hamilton Street Railway, [1903] A.C. 524, refd to. [para. 11].

Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396, refd to. [paras. 11 and 78].

Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, affd, [1951] A.C. 179, refd to. [para. 12].

R. v. Scherstabitoff, [1963] 2 C.C.C. 208, refd to. [paras. 14 and 92].

Industrial Acceptance Corporation Ltd. v. The Queen, [1953] 2 S.C.R. 273, refd to. [para. 14].

Goodyear Tire & Rubber Co. of Canada Ltd. v. The Queen, [1956] S.C.R. 303, refd to. [para. 14].

Sunbeam Corporation (Canada) Ltd. v. The Queen, [1969] S.C.R. 221, refd to. [para. 14].

R. v. Groves (1977), 39 C.R.N.S. 366, refd to. [para. 14].

Re Torek v. The Queen (1974), 15 C.C.C.(2d) 296, refd to. [para. 19].

Papp v. Papp, [1970] 1 O.R. 331, refd to. [para. 19].

R. v. Cohen and Miller, [1922] 3 W.W.R. 1126, refd to. [para. 21].

Turcotte c. Gagnon, [1974] Que. P.R. 309, refd to. [para. 22].

Attorney-General of Ontario v. Reciprocal Insurers, [1924] A.C. 328, refd to. [para. 31].

Reference re Validity of s. 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, refd to. [para. 31].

Canadian Federation of Agriculture v. Attorney-General of Quebec, [1951] A.C. 179, refd to. [para. 31].

Pringle v. Fraser, [1972] S.C.R. 821, folld. [para. 34].

The King v. Elliott, [1908] 2 K.B. 452, refd to. [para. 35].

Adgey v. The Queen, [1975] 2 S.C.R. 426, refd to. [para. 73].

Lake v. The Queen, [1969] S.C.R. 49, refd to. [para. 73].

Switzman v. Elbling, [1957] S.C.R. 285, refd to. [para. 78].

Ross v. Registrar of Motor Vehicles, 1 N.R. 9, [1975] 1 S.C.R. 5, refd to. [para. 81].

City of Toronto v. The King, [1932] A.C. 98, refd to. [para. 84].

Basted v. Grafton and Wilde, [1948] 1 W.W.R. 614, refd to. [para. 86].

La Foncie ;re v. Perras, [1943] S.C.R. 165, refd to. [para. 88].

Attorney-General for Canada v. Attorney-General for British Columbia, [1930] A.C. 111, folld. [para. 89].

Attorney General for Quebec v. Attorney General for Canada, [1945] S.C.R. 600, folld. [para. 90].

Toronto Corporation v. York Corporation, [1938] A.C. 415, refd to. [para. 96].

Re: State of Nebraska and Morris (1971), 2 C.C.C.(2d) 282, refd to. [para. 99].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 10 [para. 87], sect. 653(3).

British North America Act, 1867, sect. 91(27), sect. 92(13).

Authors and Works Noticed:

Law Reform Commission of Canada, Working Paper 5 [para. 13].

Halsbury's Laws of England, 3rd Ed., vol. 10, page 271 [para. 80].

Jowitt, Dictionary of English Law [para. 84].

Oxford Dictionary [para. 84].

McGregor on Damages, 13th Ed., page 303 [para. 86].

Counsel:

J.D. Dangerfield and A. Jacksteit, for the appellant;

D.A. Yanofsky, Q.C., for the respondent Zelensky;

S. Froomkin, Q.C. and S.R. Fainstein, for the Attorney General of Canada;

Michel Pothier and Yves Berthiaume, for Attorney General of Quebec;

W.M. Henkel, Q.C., for Attorney General of Alberta;

M.L. Ostfield and B.A. Crane, for T. Eaton Co. Ltd.

This appeal was heard by LASKIN, C.J.C., MARTLAND, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ, ESTEY and PRATTE, JJ., at Ottawa, Ontario, on November 29, 1977

The judgment of the Supreme Court of Canada was delivered on May 1, 1978 and the following opinions were filed:

LASKIN, C.J.C. - see paragraphs 1 to 36.

PIGEON, J., dissenting - see paragraphs 37 to 100.

MARTLAND, RITCHIE, SPENCE, DICKSON and ESTEY, JJ., concurred with LASKIN, C.J.C.

BEETZ and PRATTE, JJ., concurred with PIGEON, J.