Supreme Court of Canada
Robillard v. The Queen, [1978] 2 S.C.R. 728
Date: 1978-05-01
Michel Robillard Appellant;
and
Her Majesty The Queen Respondent.
1978: March 14; 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 QUEBEC
Criminal law—Incomplete evidence—Reopening of inquiry—Absence of prejudice—Criminal Code, ss. 302 and 643.
Appellant was convicted by a jury of armed robbery. An accomplice, Sévigny, who had identified him at the preliminary inquiry as one of the robbers, refused to testify at the trial. The evidence given by Sévigny at the inquiry was then read to the jury and the Crown closed its case. After counsel for the Crown had addressed the jury, counsel for the appellant argued that appellant had not been identified at the trial as the Robillard referred to in Sevigny’s testimony. The judge granted the Crown leave to reopen the inquiry in order to produce this evidence. In the Court of Appeal, the dissenting judge regarded this as a fatal error, while the two majority judges held that the trial judge had exercised his discretionary power judiciously and refused to interfere.
Held: The appeal should be dismissed.
A trial judge may allow the Crown to submit additional evidence after the Crown has closed its case, and this power is discretionary and not subject to the strict limitation accepted by the dissenting judge in the Court of Appeal, namely that reopening may be allowed only if “some matter arises ex improviso which no human ingenuity could have foreseen”. According to the weight of authority, the trial judge may allow the inquiry to be reopened in order to rectify an inadvertent omission, for example, and the Court of Appeal may interfere only if it is shown that an injustice has resulted or that there was some prejudice to the accused.
In the case at bar there could be no doubt about the identity of the accused. It had been positively established in the absence of the jury at the voir dire, and all that was required was to have this evidence repeated before the jury. There was no prejudice to appellant in the fact that this purely formal evidence was made at that later stage rather than earlier.
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Sullivan v. R. (1922), 16 Cr. App. R. 121; R. v. Grégoire (1927), 60 O.L.R. 363; McKenna v. R. (1956), 40 Cr. App. R. 65; R. v. Huluszkiw (1962), 37 C.R. 386, followed; Day v. R. (1940), 27 Cr. App. R. 168; R. v. Marsh (1940), 74. C.C.C. 312, distinguished; R. v. Kishen Singh (1941), 76 C.C.C. 248; R. v. “Evgenia Chandris”, [1977] 2 S.C.R. 97; Norman Clement Pilcher et al. v. R. (1974), 60 Cr. App. R. 1, referred to.
APPEAL from a decision of the Court of Appeal of Quebec affirming a verdict of guilty delivered by a jury. Appeal dismissed.
Roland Blais, Q.C., for the appellant.
Rémi Bouchard, for the respondent.
The judgment of the Court was delivered by
PIGEON J.—This appeal, brought as of right on the basis of the dissent of Casey J.A., is from the judgment of the Court of Appeal of the province of Quebec, [1975] C.A. 63, affirming the conviction for armed robbery entered against appellant. Since the judgment does not specify as required by s. 606 of the Criminal Code the grounds in law upon which the dissent is based, I find it useful to quote the major part of Casey J.A.’s reasons. They include a fair summary of the relevant facts:
The robbery occurred on January 17th, 1971, and several people were involved, one being Ferland. In due course the Crown proceeded with his preliminary inquiry and present thereat was one Robillard. At this inquiry another member of the group—Sevigny—testified and it was he who identified the robbers, one being the Robillard then present in Court. The next day Sevigny’s evidence was deposited to serve as proof in Appellant’s preliminary inquiry.
Called by the Crown at Appellant’s trial Sevigny refused to testify. He was then found guilty of contempt (p. 200) following which the Crown (C.C. 643) asked that the evidence given by him at Ferland’s preliminary inquiry be read to the jury. This was done (p. 312) and after the Crown had closed its case (p. 35) Appellant declared (p. 36) that he had no witnesses to offer. After the Crown had addressed the jury, Appellant (p. 1046) argued that he had not been identified as having been one of the bandits. His argument was that Sevigny’s deposition, if it identified anyone, identified the Robil-
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lard who was present in Court during the Ferland inquiry but that since there was no evidence that he and that Robillard were the same person there was no case for him to answer.
The Crown then moved that the enquete be re-opened to permit evidence on the identification issue and this motion was granted, the trial judge saying, amongst other things:
[TRANSLATION] I am sure that this was an oversight—that this important factor, this important evidence, was inadvertently omitted by the Crown in the confusion caused by the fact that Sevigny did not testify.
In my opinion this was a fatal error. Having declared his case closed Appellant was entitled to ask the trial judge to instruct the jury that there was a complete absence of proof on an essential element and that he, having no case to answer, should be acquitted. Instead of granting this demand the trial judge re-opened the enquete and allowed the Crown to produce additional evidence.
We are dealing with evidence introduced after Appellant had stated that he had no witnesses to offer. In these circumstances the trial judge’s power to reopen existed only if, in the words of Sloan, J.A. (Kishen Singh, 76 C.C.C. 248, Day, (1940), 27 Cr. App. R. 168) “…some matter arises ex improviso which no human ingenuity could have foreseen”. In the present case the additional evidence does not satisfy this test; …
On the contrary, Montgomery J.A. stated, with the concurrence of Bernier J.A.:
The rule followed in England was stated by Mr. Justice Byrne, giving the opinion of the Court of Criminal Appeal in McKenna, (1956), 40 Cr. App. R. 65. The accused was charged with the illegal export of goods made of iron or steel. At the close of the prosecution’s case, the defence submitted that there was no case to answer because the prosecution had not made evidence that the goods exported were in fact made of such a substance. The commissioner hearing the case accordingly recalled one of the prosecution witnesses to make such evidence. The accused was convicted, and his appeal was dismissed, Byrne J. saying (at pp. 66-67):
It is, in the opinion of this court, sufficient to say that the course taken by the learned Commissioner is one which has been recognized as being a perfectly proper course for many years. It is only necessary to refer to
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Sullivan, (1922), 16 Cr. App. R. 121; [1923] 1 K.B. 47, where it is at once be seen that a judge, in the circumstances in which the learned Commissioner acted in this case, has complete discretion whether a witness shall be recalled, and this court will not interfere with the exercise of his discretion unless it appears that thereby an injustice has resulted. It is quite obvious that there was no injustice in this case, and indeed this court is of opinion that without the evidence of the recalled witness there would have been sufficient evidence for the case to go to the jury.
In the Sullivan case, cited above, the Court of Criminal Appeal upheld a murder conviction, although the trial judge had recalled certain of the Crown’s witnesses to rebut an argument made by the defence counsel in addressing the jury.
Our own courts have gone even farther, permitting the Crown to make before a court of appeal formal evidence omitted at the trial; see Kissick v. R., [1952] 1 S.C.R. 343, where the accused were charged with conspiracy to sell narcotic drugs. On appeal, it was argued that there was a defect in the proof that the substance in question was in fact a narcotic drug. The Manitoba Court of Appeal then permitted the Crown to make formal proof to this effect. The Supreme Court held that the Court of Appeal had acted properly in so doing, though Kerwin, J., dissenting, would have ordered a new trial.
The above case was followed by the Ontario Court of Appeal in one where the facts bear some resemblance to those now before us, R. v. Huluszkiw, (1962), 37 C.R. 386. In that case, a witness who had testified at the preliminary inquiry died before the trial. Her testimony was placed before the trial judge, who held that he could not consider it because certain formal proof as to the circumstances under which it had been given had not been made. On an appeal by the Crown, the Court of Appeal permitted this proof to be made before it and convicted the accused. Speaking for the court, McLennan, J.A. said (at p. 390):
It would be unfortunate if the ends of justice were defeated by the inadvertence of counsel in failing to prove what is essentially a matter of form in relation to procedure and provided always that the calling of further evidence, whatever its character, is for an honest purpose and that there are no unfair consequences to the opposite party so far as the presentation of that case is concerned. Such was the case in Rex v. Perreault, (1941), 78 C.C.C. 236, 3 Abr. Con. (2nd) 843, where in a trial of an accused for man-
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slaughter the Crown through inadvertence failed to prove that the accused was the driver of the car which killed a person and permission was given to the Crown to prove this fact after the Crown had closed its case. No doubt the burden on the Crown to satisfy the Court that there are no unfair consequences is greater after the defence has closed its case.
In my opinion, the majority decision is correct. A trial judge may allow the Crown to submit additional evidence after the Crown has closed its case, and this discretionary power is not subject to the strict limitation mentioned by Sloan J.A. in Kishen Singh. Moreover, it should be noted that this strict rule was not applied in that case: on the contrary, the majority, including Sloan J.A., relied on the unanimous decision of the Ontario Court of Appeal in R. v. Grégoire, to the effect that it was proper to permit an omission due to inadvertence to be corrected. In that case, some witnesses had been summoned by the Crown whom the prosecutor had forgotten to call before closing his case. The defence moved for a non-suit but the judge permitted the forgotten witnesses to testify. In Kishen Singh, counsel had omitted to put in evidence the proclamation bringing into force the statute on which the prosecution was based. (Nowadays such evidence would clearly not be necessary, in view of s. 23 of the Statutory Instruments Act, 1970-71-72, c. 38, as interpreted by the majority in The Queen v. “Evgenia Chandris”, according to the English version, under which a “statutory instrument” shall be judicially noticed by judges; although the French version would rather suggest that the document must be put in evidence, since it provides that such an instrument “sera admis d’office en justice”.)
In Day, the indictment was for forgery. In addition to the document alleged to be forged, two authentic documents were filed for comparison purposes, but no handwriting expert was called to testify. The accused testified in his defence and
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denied having committed the forgery. It was only after this testimony that, at the suggestion of the judge, the Crown asked that an expert be permitted to testify. It was not necessary to go as far as the statement quoted by Casey J.A. to hold that the accused has thus suffered prejudice. Be that as it may, subsequent as well as earlier cases in the Court of Criminal Appeal hold that this is a discretionary power which should not be interfered with unless an injustice has resulted. As pointed out by Montgomery J.A., the decision so holding in McKenna in 1956 was based on Sullivan, decided in 1922. A decision to this same effect was also rendered a few years later in 1962 by the Ontario Court of Appeal in Huluszkiw, also cited by Montgomery J.A.
At the hearing, counsel for the appellant relied on what was said by the Manitoba Court of Appeal in R. v. Marsh, where the statement made as in Day was repeated. There too it was unnecessary to go so far. The prejudice was clear. The trial judge had allowed the jury to view the locus in quo during their deliberations and, during this visit, the complainant had indicated a different spot from that mentioned in her evidence.
Although not cited by either side, I think a few words should be said about the judgment rendered in 1974 by the Court of Criminal Appeal in Norman Clement Pilcher et al. After the defence had opened its case, the judge had admitted the evidence of a witness for the Crown who had been forgotten. The Court of Appeal stated (at p. 5):
…We do not say that in cases like the present where the matter has not arisen ex improviso the judge had no kind of discretion at all, but we are firmly of opinion that in cases where the matter does not arise ex improviso the judge’s discretion should not be exercised to allow the late introduction of an additional witness called for the prosecution whose evidence was available before the case for the prosecution closed. …
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In the end, however, the evidence for the Crown was found sufficient without the forgotten witness, and the conviction was affirmed on the ground that the accused had suffered no prejudice. The case is therefore of no great weight, and it appears to me that the rule established by the line of cases mentioned by Montgomery J.A. should be adhered to.
Counsel for the appellant contended that, after deciding to admit further evidence to positively identify the accused as the Michel Robillard mentioned in the deposition read to the jury, the trial judge improperly told counsel for the defence:
[TRANSLATION] I am ready to allow you to present rebuttal evidence …
It was claimed that by these words, the judge intended to allow the defence to present evidence only to contradict the additional evidence on identification. I fail to see how such an intention could be imputed to the trial judge, since there could be no doubt about the identity of the accused—it had moreover been positively established in the absence of the jury at the voir dire—and all that was required was to have this evidence repeated before it. As stated by Montgomery J.A.:
In the course of this trial it was never at any time questioned that, throughout the proceedings, all references to Michel Robillard were to the same person. The Crown had in fact made evidence (by the detective Desjardins, at p. 301) that the Michel Robillard on trial was the one present at the preliminary inquiry, but this evidence was made in the absence of the jury, and specific evidence of identity was not made before them until the Crown was permitted to reopen its case. In my opinion, the jury would have been entitled to presume from the evidence already before them that there was only one Michel Robillard, and I question whether the reopening of the case was really necessary, but I can see no prejudice to Appellant in the fact that this purely formal evidence was made at that late stage rather than earlier …
Furthermore, counsel for the defence, far from asking to be allowed to submit evidence, said to the judge:
[TRANSLATION] I request that you allow me the privilege or right to address the jury after the witness is heard…
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This request was immediately granted by the judge.
In my opinion, the Court of Appeal did not err in holding that there was no reason to reconsider the trial judge’s exercise of his discretion in allowing the case to be reopened.
I therefore conclude that the appeal should be dismissed.
Appeal dismissed.
Solicitor for the appellant: Roland Blais, Montreal.
Solicitor for the respondent: Rémi Bouchard, Quebec.
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