Forsythe v. R., [1980] 2 SCR 268

SUPREME COURT OF CANADA

Forsythe v. The Queen, [1980] 2 S.C.R. 268

Date: 1980-06-27

Gregory Forsythe Appellant;

and

Her Majesty The Queen Respondent. 1980: May 14; 1980: June 27.

Present: Laskin C.J. and Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Criminal law — Charge of rape — Certiorari — Motion to quash — Preliminary hearing — Committal for trial — Whether complainant compellable witness at in camera hearing— Questions on sexual conduct — Adequacy of notice and particulars — Denial of natu­ral justice — Right to cross-examine — Criminal Code, R.S.C. 1970, c. C-34 as amended, ss. 142, 455.3(1)(a), 468(1)(a).

The appellant and a co-accused were charged with rape. During the preliminary inquiry, the appellant was denied the right to question the complainant with respect to her sexual conduct with persons other than himself in an in camera hearing held pursuant to s. 142(1) of the Criminal Code. A request of appellant's counsel to cross-examine a police sergeant on the notes he made during an interview with the complainant was also refused. The appellant was eventually committed for trial and he applied for an order quashing the committal for trial. The application was dismissed by the Supreme Court of Ontario and the appeal from that judgment was dismissed by the Court of Appeal.

Held: The appeal should be dismissed.

That certiorari may be invoked to quash a committal for trial is accepted law in Canada, but only in cases of lack or loss of jurisdiction, which can only occur when a magistrate fails to observe a mandatory provision of the Criminal Code or when there is a denial of natural justice, which denial, in the case of a preliminary inqui­ry, has to be a complete denial to the accused of a right to call witnesses or to cross-examine prosecution wit­nesses. Mere disallowance of questions on cross-exami­nation or a ruling on the admissibility of evidence, even if erroneous, do not go to jurisdiction and do not open the way to certiorari. The refusal of a request to cross-examine a police sergeant on some notes does not, therefore, even if wrong, support reviewability on certiorari.

With respect to the in camera hearing, it is the first time that the interpretation and application of s. 142(1)

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of the Criminal Code, introduced in 1976, are before this Court. It cannot be doubted, having regard to the reference in s. 142(1) to "the judge, magistrate or justice", that its provisions apply to a preliminary inqui­ry. Section 142 has affected the prior law which disenti­tled an accused to pursue and seek to contradict a denial by a complainant of sexual misconduct with persons other than the accused. Section 142 may be regarded as balancing the interests of both the complainant (whereas she may now be required to answer the question in public, she may not have to do so if the Court rules against it although she may have to submit to the question in private) and the accused (whereas he could formerly put the question in public without necessarily being entitled to an answer, he now has the right of answer and the right to contradict it if the Court rules in his favour in the in camera hearing).

The presiding judge or magistrate should go into an in camera hearing in respect of the adequacy or sufficiency of the "reasonable notice" and the "particulars of evi­dence" required by clause (a) of s. 142(1). It would defeat the purpose of s. 142 if the notice and particulars were revealed prior to the in camera hearing. The requirement of particulars does not oblige the accused to set out the very questions that he seeks to put. The findings of the judge or magistrate on the adequacy or sufficiency of the notice and particulars are not review-able on certiorari or on a motion to quash brought to challenge a committal for trial or to challenge a decision made in the course of a preliminary inquiry.

The in camera hearing being for the purpose, inter alia, of enabling the judge or magistrate to satisfy himself as to the weight of the evidence, evidence may be taken at the hearing, although the judge or magis­trate may decide, after hearing submissions or represen­tations of counsel, that he does not need to hear any evidence. If evidence is taken, the witnesses proposed to be called must be regarded as compellable, and the complainant, whose credibility is an issue of fact speci­fied in s. 142(1)(6), must be equally compellable, becoming, however, the accused's witness if called by him at the hearing. However, the judge or magistrate has discretion to decide not to hear a proposed witness, be the witness the complainant or some other person, though he would generally be better able to exercise his judgment about a witness after hearing his evidence rather than by not hearing it at all. Here, the presiding judge did not think that any assistance would be pro­vided by compelling the complainant to testify at an in camera hearing, and his decision does not amount to a denial of natural justice.

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R. v. Botting, [1966] 2 O.R. 121; Chromium Mining and Smelting Corp. Ltd. v. Fortin, [1968] Que. Q.B. 536; Patterson v. The Queen, [1970] S.C.R. 409; Doyle v. The Queen, [1977] 1 S.C.R. 597; Alliance des Pro­fesseurs catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140; Attorney Gener­al for Quebec v. Cohen, [1979] 2 S.C.R. 305; R. v. Moulton, [1980] 1 W.W.R. 711; R. v. Roussel (1979), 10 C.R. (3d) 184; R. v. Lawson (1978), 39 C.C.C. (2d) 85; R. v. Morris (1977), 1 C.R. (3d) 284; R. v. O'Brien (1976), 31 C.C.C. (2d) 396; R. v. Maclntyre (1978), 42 C.C.C. (2d) 217; R. v. McKenna, McKinnon and Nolan (1976), 32 C.C.C. (2d) 210; R. v. Finnessey (1906), 10 C.C.C. 347; R. v. Basken and Kohl (1974), 21 C.C.C. (2d) 321; R. v. Krausz (1973), 57 Cr. App. R. 466, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario[1], dismissing an appeal from a judgment of the Supreme Court of Ontario[2] dismissing an application for an order quashing the appellant's committal for trial on a charge of rape. Appeal dismissed.

Keith E. Wright, for the appellant.

Bonnie J. Wein, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The issue in this appeal, which is here by leave of this Court, is whether the appellant is entitled to quash on certiorari a com­mittal for trial on a charge of rape. This issue engages Criminal Code, s. 142, as enacted by 1974-75-76 (Can.), c. 93, s. 8. The application to quash was dismissed by Hollingworth J., and his judgment was affirmed by the Ontario Court of Appeal without calling on counsel for the respond­ent Crown. Brooke J.A., in very short reasons, stated that the Court of Appeal was "in substan­tial agreement with the judgment of Mr. Justice Hollingworth, and in our view on the facts of this case he was correct in refusing to make the order [to quash]". I shall come shortly to Judge Holling­worth's reasons but I wish first to delineate the grounds upon which a committal for trial may be quashed.

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That certiorari may be invoked to quash a com­mittal for trial is accepted law in Canada; see R. v. Botting[3] Chromium Mining and Smelting Corp. Ltd. v. Fortin[4]. The fact that it is a discretionary remedy and may be refused where there is another recourse does not affect resort to it in respect of a committal for trial since there is no other recourse. Committals for trial are not appealable and can only be challenged by certiorari or motion to quash. What then are the grounds upon which a successful challenge may be made? In Patterson v. The Queen[5], this Court stated that lack of jurisdic­tion was the only ground for quashing a committal for trial. The decision was based upon a particular fact situation. Counsel for the accused sought, on the preliminary inquiry, to compel production of a statement given to the police by a prosecution witness. Although the request for production was denied, the defence was not prohibited from cross-examining on the contents of the statement. It discontinued cross-examination without seeking to delve into the statement. This Court held that even if the denial of production was wrong (and it held that it was not), this did not go to jurisdiction. Spence J., in dissent, felt that there was a denial of natural justice (and hence a jurisdictional error) by viewing the facts as depriving the accused of the right to cross-examine given by what is now Criminal Code, s. 468(1)(a).

In speaking of lack of jurisdiction, this Court was not referring to lack of initial jurisdiction of a judge or a magistrate to enter upon a preliminary inquiry. This is hardly a likelihood. The concern rather was with the loss of this initial jurisdiction and, in my opinion, the situations in which there can be a loss of jurisdiction in the course of a preliminary inquiry are few indeed. However, jurisdiction will be lost by a magistrate who fails to observe a mandatory provision of the Criminal

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Code: see Doyle v. The Queen[6]. Canadian law recognizes that a denial of natural justice goes to jurisdiction: see Alliance des Professeurs catholi­ques de Montréal v. Labour Relations Board of Quebec[7]. In the case of a preliminary inquiry, I cannot conceive that this could arise otherwise than by a complete denial to the accused of a right to call witnesses or of a right to cross-examine prosecution witnesses. Mere disallowance of a question or questions on cross-examination or other rulings on proffered evidence would not, in my view, amount to a jurisdictional error. However, the judge or magistrate who presides at a preliminary inquiry has the obligation to obey the jurisdictional prescriptions of s. 475 of the Crimi­nal Code.

In Attorney General for Quebec v. Cohen[8], this Court was faced with an attempt by an accused to quash a decision of a magistrate during the course of a preliminary inquiry and before there was a committal for trial. Pigeon J., speaking for this Court, noted that this was an unprecedented pro­ceeding. The decision which the accused sought to quash was a refusal by the magistrate to allow accused's counsel to put questions to a Crown witness on cross-examination in respect of deposi­tions taken ex parte and in camera, under Crimi­nal Code, s. 455.3(1)(a), by a magistrate before whom an information had been laid against the accused. An order to quash was denied on the ground that a ruling on the admissibility of evi­dence, even if erroneous, did not go to jurisdiction. There can be no gainsaying the correctness of this conclusion.

I come now to Criminal Code, s. 142 and to the course of proceedings before Provincial Court Judge McMahon and to the reasons of Holling­worth J. on the motion to quash the committal for trial. Criminal Code, s. 142 reads as follows:

142. (1) Where an accused is charged with an offence under section 144 or 145 or subsection 146(1) or 149(1), no question shall be asked by or on behalf of the accused

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as to the sexual conduct of the complainant with a person other than the accused unless

(a) reasonable notice in writing has been given to the prosecutor by or on behalf of the accused of his intention to ask such question together with particu­lars of the evidence sought to be adduced by such question and a copy of such notice has been filed with the clerk of the court; and

(b) the judge, magistrate or justice, after holding a hearing in camera in the absence of the jury, if any, is satisfied that the weight of the evidence is such that to exclude it would prevent the making of a just determi­nation of an issue of fact in the proceedings, including the credibility of the complainant.

(2) The notice given under paragraph (1)(a) and the evidence taken, the information given or the representa­tions made at a hearing referred to in paragraph (1)(b) shall not be published in any newspaper or broadcast.

(3) Every one who, without lawful excuse the proof of which lies upon him, contravenes subsection (2) is guilty of an offence punishable on summary conviction.

(4) In this section, "newspaper" has the same mean­ing as it has in section 261.

(5) In this section and in section 442, "complainant" means the person against whom it is alleged that the offence was committed.

I have reproduced the whole section although the issues in this case touch only subss. 1(a) and (b), as amplified by subs. (2).

The interpretation and application of s. 142(1) is before this Court for the first time, but it has been the subject of case law in the Courts of Appeal of Alberta and British Columbia (see R. v. Moulton[9], R. v. Roussel[10] and R. v. Lawson[11]); in the Supreme Court of British Columbia (see R. v. Morris[12]); in District Courts in Newfoundland and in Ontario (see R. v. O'Brien[13]); R. v. MacIntyre[14] and in a Provincial Court of Ontario (see R. v. McKenna, McKinnon and Nolan[15]).

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There has been advertence in this line of cases to what the various courts have considered to be the purpose of s. 142, namely, to alleviate the trauma and the humiliation and embarrassment of a complainant by an inquiry into her past sexual conduct with persons other than the accused. The provision also appears, however, to balance the interests of an accused because, under the prior law, a denial of sexual misconduct with others precluded any fur­ther inquiry into what was considered to be a collateral issue. However, inquiry into previous sexual encounters with the accused was not a collateral matter into which inquiry was foreclosed by a denial. It was relevant to consent which is so often the main issue in sexual offences. It was, also, open to an accused under the prior law to ask questions as to the complainant's general reputa­tion for chastity, as a matter going to credibility and consent, but the accused was entitled to bring evidence to contradict a denial of unchastity, sub­ject in some circumstances to the discretion of the trial judge to disallow such questions: see R. v. Finnessey[16], at p. 351; R. v. Basken and Kohl[17], at p. 337; and see also the wider scope of questions as to general reputation for prostitution approved in R. v. Krausz[18], at p. 472. These last mentioned inquiries are not directly affected by s. 142.

In indicating as I have that, in my opinion s. 142 has affected the prior law which disentitled an accused to pursue and seek to contradict a denial by a complainant of sexual misconduct with others, I am endorsing a view that was expressed by Meredith J. in R. v. Morris, supra. This, however, is not the view taken by McDermid J.A. in R. v. Moulton, supra, at p. 726. He said this:

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The rules as to the examination of a complainant as to her sexual conduct are judge-made rules. In my opinion if Parliament had intended to extend the rights of an accused by providing that evidence could be called to contradict a complainant's evidence in respect of specific acts of sexual intercourse with men other than the accused it would have so provided specifically and not by implication.

Since McDermid J.A. also held that a complainant could be a compellable witness at an in camera hearing under s. 142(1) (b) (a point which I address later in these reasons), I am puzzled by his statement quoted above. If the presiding judge or magistrate finds in an in camera hearing that the conditions upon which questions may be asked about sexual misconduct by the complainant with others have been met, it follows that her credibility becomes an issue of fact which can properly be pursued upon the resumption of the preliminary inquiry or of the trial, as the case may be. The accused, in making his defence, is not limited to cross-examining the complainant to expose the falsity of a denial of sexual encounters with others (if she does deny them), but may put forward other witnesses (those whose evidence was given in the in camera hearing) to impugn the credibility of the complainant. If this cannot be done, s. 142 becomes almost a dead letter, notwithstanding that the judge or magistrate, who has taken evidence in an in camera hearing, has concluded that to exclude the evidence, including that going to the credibility of the complainant, would prevent the making of a just determination of her credibility and of other issues of fact in the proceedings against the accused. I would note too that Lieberman J.A. in the Moulton case takes a view con­trary to that of McDermid J.A. and one in con­formity with R. v. Morris.

It follows from the foregoing that the complai­nant must now answer the type of question envisaged by s. 142(1) and must do so in public, unless the Court, in the exercise of its discretion, refuses to allow such an inquiry after the in camera hearing. It may refuse because, for exam­ple, counsel for the accused is engaging in a fishing expedition and has no reasonable basis for putting such a question. Of course, the accused must not

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be prevented from making full answer and defence. Section 142 may, therefore, be regarded as balancing the interests of both the complainant and the accused through this change in the law of evidence. The gain of the complainant is that whereas she may now be required to answer the question in public she may not have to do so if the Court rules against it, although she may have to submit to the question in private. As for the accused, whereas he could formerly put the ques­tion in public without necessarily being entitled to an answer, he now has the right of answer and the right to contradict it if the Court rules in his favour in the in camera hearing.

As already noted, the issues touching the mean­ing and scope of s. 142 arose in this case upon a preliminary inquiry, and it cannot be doubted, having regard to the reference in the section to "the judge, magistrate or justice", that its provi­sions apply to such an inquiry. (In appearing to hold otherwise, R. v. Roussel, supra, was wrongly decided.) The section, applicable to charges of rape, attempted rape, sexual intercourse with a female under age fourteen and indecent assault of a female, is dominated by the words "no question shall be asked ... unless" clauses (a) and (b) of s. 142(1) are complied with and satisfied.

I turn first to a consideration of clause (a). The case law to which I have referred above indicates that what is reasonable notice is a question of fact in each case, and there can be no quarrel with this view. It follows, of course, that even if the question of reasonable notice might give rise to an appeal-able issue where s. 142 is invoked in the course of a trial, it does not give rise to an issue reviewable on certiorari brought to challenge a committal for trial or to challenge a decision made in the course of a preliminary inquiry. The second principal element of clause (a) is the requirement that the notice include "particulars of the evidence sought to be adduced by such question", that is, a ques­tion or questions sought to be put by the accused as to the sexual conduct of the complainant with a person or persons other than the accused. The

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term "particulars of the evidence" appears to me to be a self-defining dictionary term, but I think some latitude must be given to the judge or magis­trate to assess the sufficiency of the particulars that are given. The requirement of particulars would, ordinarily, encompass time and place and the names of the other persons allegedly involved with the complainant but I do not think that the requirement obliges an accused to set out the very questions that he or his counsel seeks to put. The questions that are sought to be put are, in my view, sequential to the particulars and not themselves a part thereof, although it would be open to the accused to specify the questions in the particulars if he so wishes. I see no reason, moreover, why the presiding judge or magistrate should not permit an amendment to the particulars, so long as the requirement of reasonable notice remains satisfied and so long as there is no prejudice to the complainant.

In the present case, unfortunately, the notice in writing embodying the particulars was not made part of the record, although there is a reference to it in the transcript of the proceedings before Judge McMahon. Counsel for the respondent Crown urged that Judge McMahon had ruled against the sufficiency of the notice and particulars. I do not think that the record supports this view. On the contrary, Hollingworth J. in his reasons had this to say on the matter:

In this case, Mr. Wright [counsel for the accused] gave notice naming the complainant's boyfriend and Judge McMahon has accepted that notice as being adequate and I do not quarrel with him because that is his right.

The affirmation of Judge Hollingworth's reasons by the Ontario Court of Appeal means that there are concurrent findings on the adequacy or suffic­iency of the notice and particulars. I would add this. Even if the question of sufficiency or insuffi­ciency should be challenged, it would not be reviewable on certiorari or on a motion to quash at this stage, whatever be its appealability, if the matter arose in the course of a trial.

This brings me to clause (b), which is the nub of the present case under the competing and irreconcilable

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positions thereon by the accused and by the Crown. A preliminary issue is whether the presid­ing judge or magistrate should go into an in camera hearing in respect of the adequacy of the notice and particulars required under clause (a). I come back to what I said were the dominating words in s. 142, namely, "no question shall be asked ... unless". In my view, it would defeat the purpose of s. 142 if the notice and particulars were revealed prior to the in camera hearing because it may turn out that they are inadequate or do not properly indicate a relevant line of proposed ques­tioning. If that be the case, then there should be no public revelation of "the particulars of the evi­dence sought to be adduced". Coming then direct­ly to clause (b), there are two issues that were raised in the submissions of counsel for the accused and counsel for the Crown. They are (1) whether evidence may be or must be taken at the in camera hearing, and (2) whether, if so, the complainant, as well as any other person, is a compellable witness at the in camera hearing.

Counsel for the accused urged, of course, that s. 142(1)(b) envisaged the taking of evidence at the in camera hearing and, further, the credibility of the complainant being a matter expressly men­tioned in s. 142(1) (b), she was necessarily a com­pellable witness to whom he was entitled, therefore, to put questions referable to the particulars set out in the notice. Counsel for the Crown sub­mitted that s. 142(1)(b) did not envisage the prof­fering of evidence of witnesses at an in camera hearing, and certainly not the compellability of the complainant. According to Crown counsel, it was for the Court to determine merely on oral submis­sions whether the provisions of clauses (a) and (b) were met, and if the Court so concluded then the accused was free to put his questions at the resumption of the preliminary inquiry or of the trial, as the case might be. Alternatively, Crown counsel submitted that there is a broad discretion in the presiding judge to control the conduct of the in camera hearing and any error committed in the course of it would not be a ground to quash on certiorari.

I cannot subscribe to the main contention of Crown counsel that clause (b) envisages only oral

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submissions or representations by counsel. There are two main reasons for rejecting the contention. First, the in camera hearing is for the purpose, inter alia, of enabling the judge or magistrate to satisfy himself as to the weight of the evidence, and I am unable to appreciate how weight can be determined without an assessment of witnesses called to give evidence, an assessment which would take into account their demeanor, their knowledge of the events about which they are examined, the consistency of their testimony and so on. Second, s. 142(2) appears to me to be conclusive that evi­dence may (not must) be taken in the in camera hearing. That provision, if I may repeat its rele­vant portion, speaks of "the evidence taken, the information given or the representations made at a hearing referred to in paragraph 1(b)". In my opinion, the judge or magistrate conducting the in camera hearing may decide, after hearing submis­sions or representations of counsel, that he does not need to hear any evidence. It is more likely that a decision not to hear any evidence would result in a holding adverse to the accused but this need not be invariably so. However, he may be persuaded by the representations made, or even without them, that evidence should be taken so that he can assess its weight to determine whether "[he] is satisfied ... that to exclude it would prevent the making of a just determination of an issue of fact in the proceedings, including the credibility of the complainant".

If evidence is taken at the in camera hearing, the witnesses proposed to be called must be regarded as compellable, and the complainant, whose credibility is an issue of fact specified in s. 142(1) (b), must be equally compellable, becoming, however, the accused's witness if called at the in camera proceedings. I agree, in respect of the compellability of the complainant, with the deter­mination to this effect by the Alberta Appellate Division in R. v. Moulton, supra. There may be some reason or reasons why a proposed witness, be the witness the complainant or some other person, will not be heard by the presiding judge or magis­trate who decides to take evidence. The presiding judge or magistrate may regard proposed evidence

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as too remote or he may conclude that its proba­tive value is outweighed by its prejudicial effect. Again, he may be of the view that an intended witness should not be called if his evidence will involve the court in speculating on its relevance.

However, it seems to me that it will be a rare case where an accused will be denied the right to call a witness once evidence is to be taken. I say this because the presiding judge or magistrate will have already passed on the adequacy of the notice and the particulars and, hence, on the range of the questions to be asked. The presiding judge or magistrate, concerned with the weight of evidence, will be better able to exercise his judgment about a witness after hearing his evidence rather than by not hearing him at all. Of course, the presiding judge or magistrate may have to make rulings during the course of the evidence as to the proprie­ty of questions and as to admissibility of testimony sought to be offered and, even if he be wrong in any such ruling, it would not give rise to a success­ful challenge on certiorari.

In the present case, Judge McMahon refused to allow counsel for the accused to examine the com­plainant at an in camera hearing pursuant to s. 142(1)(b). The ground of refusal appeared to be that a preliminary hearing was concerned only with whether the Crown had made out a sufficient case to warrant committal for trial and Judge McMahon did not think that any assistance in that respect would be provided by compelling the com­plainant to testify at an in camera hearing. He indicated to counsel that the matter could be raised, apparently more properly, at the ensuing trial. Hollingworth J. held, following R. v. Morris, supra, that the complainant was a compellable witness at an in camera hearing, provided that a proper foundation was laid for the reception of her evidence. In his opinion, there was no such founda­tion and this was sufficient to dismiss the applica­tion to quash the committal for trial. Hollingworth J. noted that s. 142 gave the presiding judge or magistrate considerable power to control the course of proceedings, having regard, particularly, to the remedial purpose of the section.

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Although there appears to be some contradic­tion in the reasons of Hollingworth J. between his assertion that the notice under s. 142(1)(a) was accepted by Judge McMahon as adequate (a point to which I adverted earlier in these reasons) and his assertion made immediately following in his reasons that no proper basis had been laid for the examination of the complainant at an in camera hearing, the reconciliation of those views lies in an earlier passage of Judge Hollingworth's reasons. There he said that it would only be in exceptional cases that a complainant could be called first (as was requested here), so that, presumably, if there are other witnesses (there were no others who could be called in R. v. MacIntyre, supra, where the complainant was held to be compellable), one or more of them should be called first to establish a foundation for the examination of the complai­nant.

Although I do not think that this should be a rigid rule, I would not regard its application in this case as amounting to a denial of natural justice or as impeding an accused's right to make full answer and defence. There is a discretion in a judge or magistrate holding an in camera hearing during a preliminary inquiry as to the order in which wit­nesses may be called.

Another issue raised before Judge McMahon concerned a request of accused's counsel to cross-examine a police sergeant on the notes he made during an interview with the complainant. Counsel for the accused had seen the notes but his request to cross-examine on them was refused. I agree with Judge Hollingworth that this ruling, even if wrong, did not support reviewability on certiorari and, indeed, this Court did not call upon Crown counsel to deal with the matter. The main issue before Judge Hollingworth and before this Court concerned the effect of the refusal of Judge McMahon to allow the complainant to be exam­ined in an in camera hearing.

It follows, in my opinion, that the Courts below were right in refusing to quash the committal for trial.

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I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Keith E. Wright, Toronto.

Solicitor for the respondent: The Attorney Gen­eral of Ontario, Toronto.