Miller and Kyling v. R., [1970] SCR 214

Supreme Court of Canada

Miller and Kyling v. R. [1970] S.C.R. 214

Date: 1969-11-07

Anthony Miller and Werner Kyling Petitioners;

and

Her Majesty the Queen Respondent.

1969: October 20; 1969: November 7.

Present: Fauteux, Abbott and Pigeon JJ.

MOTION FOR LEAVE TO APPEAL

Criminal law—Appeals—Leave to appeal—Refusal by trial judge to allow counsel for the accused to use French language in the examination of French-speaking witnesses—Error in law—No wrong or miscarriage of justice—B.N.A. Act, 1867, s. 133—Criminal Code, 1953-54 (Can.), c. 51, s. 592(1)(b)(iii).

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At the trial of the petitioners on an indictment for attempted murder, counsel for the accused sought to use the French language in the examination of French-speaking witnesses. The trial judge refused the request on the grounds that the two accused were English-speaking, that the jury was made up entirely of jurors speaking that language and that counsel for the accused, although French-speaking, was perfectly familiar with the English language. The conviction was upheld by the Court of Appeal. The petitioners applied for leave to appeal to this Court.

Held: The application should be dismissed.

In view of the provisions of s. 133 of the B.N.A. Act, the refusal by the judge to accede to the request was an error on a question of law. However, no wrong or miscarriage of justice had resulted from that error. The appeal was therefore properly dismissed under the provisions of s. 592(1) (b) (iii) of the Code.

APPLICATION for leave to appeal from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], affirming the conviction of the petitioners. Application dismissed.

Cyrille Goulet, for the petitioners.

Louis Carrier, for the respondent.

The judgment of the Court was delivered by

FAUTEUX J.—On December 2, 1966, a jury of the Court of Queen’s Bench sitting in the district of Beauharnois, province of Quebec, Peter V. Shorteno J. presiding, found the petitioners guilty on two counts of an indictment for attempted murder.

An appeal from this conviction was dismissed on August 7, 1969, by a unanimous judgment of the Court of Appeal¹, then composed of Casey, Taschereau, Choquette, Brossard and Salvas JJ.

The petitioners apply for leave to appeal from this judgment.

We are all of the opinion that this motion should be dismissed. We find it desirable, how-

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ever, to say a few words on the main point raised by the motion and which was urged in support of the appeal to the Court of Queen’s Bench. This is based on the following facts.

At the trial, counsel for the accused sought to use the French language in the examination of French-speaking witnesses. The judge refused to allow him to do so considering that the two accused were English-speaking, that they had elected to be tried by a jury made up entirely of jurors speaking that language, that such was effectively the actual composition of the jury and that, in addition, counsel for the accused, although French-speaking, was perfectly familiar with the English language.

There is nothing to indicate, nor has it been contended before us, that the request made by counsel for the accused was intended to obstruct the regular course of the proceedings. It should therefore be said that, in view of the provisions of s. 133 of the British North America Act, the refusal by the presiding judge to accede to the request is an error on a question of law. It may be added that, in answer to a question put on that point to counsel for the respondent at the outset of the hearing of the motion, the latter did not hesitate to concede that this was indeed an error.

However, we agree with the unanimous opinion of the Court of Appeal, that no wrong or miscarriage of justice has resulted from that error or from the other grievances raised in support of the motion. It follows that the appeal was properly dismissed under the provisions of section 592(1) (b) (iii) of the Criminal Code.

The motion for leave to appeal is dismissed.

Application dismissed.

Solicitor for the petitioners: Ivan Sabourin, St-Jean.

Solicitor for the respondent: L. Carrier, Quebec.