Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for saskatchewan
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Self‑incrimination ‑‑ Right to silence ‑‑ Whether accused separately charged with offence compellable as witness at preliminary inquiry of another accused charged with same offence ‑‑ Whether compellability in such circumstances violates principles of fundamental justice ‑‑ Canadian Charter of Rights and Freedoms, s. 7 .
Criminal law ‑‑ Procedure ‑‑ Subpoenas ‑‑ Third party ‑‑ Accused subpoenaed to testify at preliminary inquiry of co‑accused separately charged ‑‑ Accused claiming that compellability in such circumstances violates principles of fundamental justice ‑‑ Procedure to be followed by third party to challenge subpoena issued by provincial court judge.
Courts ‑‑ Supreme Court of Canada ‑‑ Jurisdiction ‑‑ Correct procedure for third party challenge of provincial court order not followed since unknown at time ‑‑ Procedure followed by third party substantially similar to correct procedure ‑‑ Whether Supreme Court has jurisdiction to entertain appeal.
P and C were charged with first degree murder and, on a separate information, L was charged with the same offence. P was later subpoenaed by a provincial court judge to testify at L's preliminary inquiry. P's counsel filed a motion seeking relief under s. 24(1) of the Canadian Charter of Rights and Freedoms and by means of prohibition. The Saskatchewan Court of Queen's Bench granted the motion and quashed the subpoena, holding that to compel P to testify would violate his rights under s. 7 of the Charter . The Court of Appeal allowed the Crown's appeal. This appeal raises two issues: (1) whether this Court has jurisdiction to entertain this appeal; and (2) whether an accused separately charged with an offence is compellable as a witness at the preliminary inquiry of another accused charged with the same offence.
Held: The appeal should be dismissed.
(1) Jurisdiction
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: Since P is a third party to L's criminal proceedings, to challenge the subpoena order issued by the Provincial Court, P must follow the procedures for third parties outlined recently in Dagenais and apply to a superior court judge for the issuance of a writ of certiorari. While, technically, P has not followed the correct procedure since he did not have the benefit of this Court's reasons in Dagenais, the remedy sought by P is substantially similar to the type that could be sought through a certiorari after Dagenais and the proceedings in the present case should, for the purposes of determining jurisdiction, be treated as tantamount to a Dagenais certiorari application. This Court therefore has jurisdiction to entertain this appeal.
Per L'Heureux‑Dubé J.: While the procedure followed by P in challenging the subpoena was not the one suggested by the majority in Dagenais, it nonetheless was, on the facts of this case, open to him. A superior court judge is a court of competent jurisdiction to hear an application for Charter relief and, in the present circumstances, P could apply for a writ of prohibition. Although, applicants challenging subpoenas issued by provincial court judges in the criminal context should, from now on, follow the procedural route set out in Dagenais, P should not be faulted for having followed a somewhat different route, given that he first applied to quash his subpoena prior to the release of this Court's decision in Dagenais. Furthermore, since P's s. 24(1) application to quash the subpoena is identical in substance to an application to quash the subpoena through the writ of certiorari (as expanded in Dagenais), form must yield to substance and the appeal rights set out in Dagenais from an application for certiorari must be available. While there is no general right of appeal from a s. 24(1) application, in the case at hand, P's application to quash the subpoena was tantamount to an application for certiorari and as such was subject to the appellate procedures set out in Dagenais. Moreover, if a court order issued in the criminal context would be, according to Dagenais, open to challenge by an affected third party, it must also be open to challenge, through the same procedures, by parties to the criminal proceeding who are also effected by it. Accordingly, the Crown could appeal the Court of Queen's Bench's decision to the Court of Appeal, and P could, with leave, appeal the Court of Appeal's decision to this Court.
(2) Compellability
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The focus required by the Charter is not on P's status as an accused but on the purpose for which the state wishes to compel his testimony. Even if separately charged as an accused person, a witness appearing in another person's criminal trial will ordinarily be compellable in that trial unless it is established that the predominant purpose in compelling the testimony is incrimination of the witness. A similar test must be applied in respect of the preliminary inquiry. P was thus properly compellable at L's preliminary inquiry since there is no evidence to suggest that the predominant purpose of the inquiry is a form of pre‑trial interrogation in respect of P or is otherwise objectionable. At subsequent proceedings against him, P would be entitled to the protections against self‑incrimination described in R. v. S. (R.J.), [1995] 1 S.C.R. 451, and British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3.
Per L'Heureux‑Dubé J.: For the concurring reasons given in R. v. S. (R.J.), [1995] 1 S.C.R. 451, P is compellable at L's preliminary inquiry. P has not demonstrated that he is within any of the conditions described in those reasons which would allow him to challenge the subpoena. P will enjoy all the Charter protections outlined in these concurring reasons as well as those of s. 5 of the Canada Evidence Act .
Cases Cited
By Sopinka and Iacobucci JJ.
Applied: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. S. (R.J.), [1995] 1 S.C.R. 451, aff'g (1993), 80 C.C.C. (3d) 397 (Ont. C.A.); British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; disapproved: Re Praisoody (1990), 1 O.R. (3d) 606, 61 C.C.C. (3d) 404 (sub nom. R. v. Devasagayam); referred to: Perreault v. Thivierge (1992), 17 C.R.R. (2d) 361; R. v. Jobin, [1995] 2 S.C.R. 78.
By L'Heureux‑Dubé J.
Applied: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; referred to: R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Jewitt, [1985] 2 S.C.R. 128; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Laba, [1994] 3 S.C.R. 965.
Statutes and Regulations Cited
Canada Evidence Act , R.S.C., 1985, c. C‑5 , s. 5 .
Canadian Charter of Rights and Freedoms , ss. 7 , 11( c ) , 13 , 24(1) .
Criminal Code , R.S.C., 1985, c. C‑46 , s. 784(1) .
Supreme Court Act , R.S.C., 1985, c. S‑26 , s. 40(1) [rep. & sub. 1990, c. 8, s. 37].
Authors Cited
Ratushny, Ed. "The Role of the Accused in the Criminal Process", in Gérald‑A. Beaudoin and Ed Ratushny, eds., The Canadian Charter of Rights and Freedoms , 2nd ed. Toronto: Carswell, 1989, 451.
Warren, Earl. "The Law and the Future", in Fortune (November 1955), 106.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1993), 113 Sask. R. 4, 52 W.A.C. 4, 85 C.C.C. (3d) 188, 17 C.R.R. (2d) 356, allowing the Crown's appeal from a judgment of Geatros J. (1993), 108 Sask. R. 193, quashing a subpoena. Appeal dismissed.
Hugh M. Harradence, for the appellant.
Graeme G. Mitchell, for the respondent.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
I. Sopinka and Iacobucci JJ. -- The important question in this appeal is very similar to that which was raised in R. v. S. (R.J.), [1995] 1 S.C.R. 451, heard together with this appeal, namely, are persons separately charged with an offence compellable as witnesses at the preliminary inquiries of other persons charged with the same offence?
I. Facts
II. The appellant, Dorne James Primeau, was jointly charged along with Rory Michael Cornish with the first degree murder of Calvin Aubichon. On a separate information, Jerry Allan Lefort was charged with the same murder.
III. A preliminary inquiry against Primeau and Cornish was scheduled at the Saskatchewan Provincial Court for June 1993. Lefort's preliminary inquiry, however, began in March 1993. Primeau was subpoenaed to testify at Lefort's inquiry (an order of production was obtained, Primeau being on remand). As a result, Primeau filed a motion seeking: (1) relief under s. 24(1) of the Canadian Charter of Rights and Freedoms to prevent him from being compelled as a witness at the preliminary inquiry of Lefort; and, (2) a writ of prohibition to prevent the Provincial Court judge from compelling his presence at the inquiry, and to prevent him from being compelled to testify at that inquiry.
IV. The Saskatchewan Court of Queen's Bench granted Primeau's motion: (1993), 108 Sask. R. 193. The Crown's appeal to the Court of Appeal was allowed: (1993), 113 Sask. R. 4, 52 W.A.C. 4, 85 C.C.C. (3d) 188, 17 C.R.R. (2d) 356. This Court granted leave to appeal from the Court of Appeal's decision: [1993] 4 S.C.R. vii.
II. Relevant Constitutional and Statutory Provisions
V. With one exception, the constitutional and statutory provisions relevant to this appeal are the same as those relevant to the judgment in S. (R.J.), supra, and they are reproduced in those reasons for judgment. The exception is the following:
Criminal Code , R.S.C., 1985, c. C-46
784. (1) An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition.
III. Judgments
Saskatchewan Court of Queen's Bench (1993), 108 Sask. R. 193
VI. Geatros J. first noted the alternative remedies sought in Primeau's motion, namely, relief under s. 24(1) of the Charter , and relief by way of a writ of prohibition. Geatros J. then followed Re Praisoody (1990), 1 O.R. (3d) 606 (Gen. Div.), 61 C.C.C. (3d) 404 (sub nom. R. v. Devasagayam), and stated that the rights protected by s. 7 of the Charter go beyond the rights protected in ss. 11(c) and 13. He quoted a passage from E. Ratushny, "The Role of the Accused in the Criminal Process", in G.-A. Beaudoin and E. Ratushny, eds., The Canadian Charter of Rights and Freedoms (2nd ed. 1989), 451, at pp. 483-84, in which it is suggested that "many of the protections provided by the criminal process may be subverted by calling the suspect or accused as a witness at some other proceeding prior to his criminal trial". He indicated that Primeau did not seek relief prematurely, and concluded (at p. 198):
By compelling Primeau to testify at the preliminary inquiry of Lefort, his right to silence has been effectively denied. It is not an answer for the Crown to say that Primeau's testimony at the preliminary inquiry could not be used against him at his trial. He is entitled to say nothing until his trial, and then only if he chooses to testify. If Primeau were required to testify at this time the Crown would acquire an advantage indirectly that it could not obtain directly.
Geatros J. granted Primeau's motion and ordered, "under s. 24(1) of the Charter , that [Primeau could not] be compelled to testify" at the preliminary inquiry of Lefort.
Court of Appeal for Saskatchewan (1993), 85 C.C.C. (3d) 188
VII. Gerwing J.A., for the court, discussed the appeal before her almost exclusively with regard to other reported decisions. In this regard, she indicated that two decisions cited to her were in direct conflict, Praisoody, supra, and Perreault v. Thivierge (1992), 17 C.R.R. (2d) 361 (Que. C.A.). She quoted from the latter case, in which the following was stated:
[TRANSLATION] Up to the present time, except for the isolated decision referred to by the appellant rendered by the Ontario Court (General Division) in [Re Praisoody (1990), 1 O.R. (3d) 606, at p. 618], I know of no other precedent which has held that the fact of being charged or of having already been committed for trial prevents the subpoena of an individual as a witness at the preliminary inquiry of another on the ground that he might thereby be required to disclose his defence at an earlier time than he would otherwise have had to.
Further, Gerwing J.A. indicated that the decision in Praisoody was considered by the Ontario Court of Appeal in R. v. S. (R.J.) (1993), 80 C.C.C. (3d) 397, and she noted that: "[w]hile the court [in S. (R.J.)] did refer to and distinguish [Praisoody], supra, on the basis that it dealt with a preliminary inquiry, it did not do so, in our view, in a way which suggested its correctness" (p. 191).
VIII. Gerwing J.A. expressed a preference for the decision of the Quebec Court of Appeal in Perreault and for the Ontario Court of Appeal decision in S. (R.J.). She allowed the Crown's appeal and set aside the order of Geatros J.
IV. Issues
IX. There are two issues in this appeal:
1.Does this Court have jurisdiction to entertain an appeal?
2.Are persons separately charged with an offence compellable as witnesses at the preliminary inquiries of other persons charged with the same offence, or would compellability in this context violate s. 7 of the Charter ?
No constitutional questions were stated in this appeal, although the judgments below implicitly rest upon conclusions which affect the constitutionality of statutory subpoena powers as well as s. 5 of the Canada Evidence Act , R.S.C., 1985, c. C-5 . However, since the necessary constitutional questions were stated as part of the appeal in S. (R.J.) and R. v. Jobin, [1995] 2 S.C.R. 78, heard together with this appeal, this deficiency can be ignored.
V. Analysis
A. Issue 1: Does this Court have jurisdiction to entertain an appeal?
X. The appellant sought at the outset to challenge a subpoena, issued from the Provincial Court, to testify at the preliminary inquiry of a co-accused. He argued that the subpoena violated his Charter right to protection against self-incrimination. The jurisdictional point in the present appeal is similar to that addressed by this Court in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. Lamer C.J., writing for the majority, phrased the issue as follows (at p. 856):
... what court(s) have jurisdiction to hear a third party challenge to a publication ban order sought by the Crown and/or defendant(s) in a criminal proceeding, and made by a provincial or superior court judge under his or her common law or legislated discretionary authority?
Although the specific order challenged in the case at bar is a subpoena and not a publication ban, this case can nonetheless be evaluated in the light of the procedural scheme laid down in Dagenais, which outlines the channels to follow when seeking redress of a court order that potentially violates the Charter .
XI. In Dagenais, the Court traces two separate paths to follow for challenges to orders made in a criminal proceeding: one for the parties to the proceeding, another for third parties. Both the accused and the Crown must apply for relief to the trial judge, or to the level of court having jurisdiction to hear the trial, if known, or otherwise to a superior court judge. An appeal of such a decision must await the end of the trial.
XII. The procedure for third parties differs for two reasons. First, a third party, being outside the actual proceedings, cannot apply to the trial judge for relief. Second, an order deciding an issue with respect to a third party is a final order. Such a characterization is important in order to comply with the general rule barring interlocutory appeals in criminal matters.
XIII. As a result of these two differences, the procedural route to follow for a third party is determined by the level of court issuing the order. A provincial court order is to be challenged through an application to a superior court judge for the extraordinary remedy of certiorari. However, given that this remedy is limited to the quashing of an order, the Court decided that it was necessary, for specific circumstances, to enlarge the remedial scope of certiorari (at p. 866):
... it is open to this Court to enlarge the remedial powers of certiorari and I do so now for limited circumstances. Given that the common law rule authorizing publication bans must be consistent with Charter principles, I am of the view that the remedies available where a judge errs in applying this rule should be consistent with the remedial powers under the Charter . Therefore, the remedial powers of certiorari should be expanded to include the remedies that are available through s. 24(1) of the Charter . [Emphasis in original.]
By the reasoning of the Court, the advantages of this route lie in its use of established procedures and its consistency with recent decisions of the Court. Moreover, an immediate appeal becomes possible from an order granting or refusing to grant certiorari through the operation of s. 784(1) of the Criminal Code . A further appeal to this Court is possible where leave to appeal is obtained pursuant to s. 40(1) of the Supreme Court Act , R.S.C., 1985, c. S-26 .
XIV. A different route is required for the challenging of an order made by a superior court judge, as certiorari does not lie against the decision of such a judge. As a result, the Court in Dagenais held that such orders should be challenged by seeking leave to appeal directly to this Court pursuant to s. 40(1) of the Supreme Court Act .
XV. The appellant has been subpoenaed to testify at the preliminary inquiry of a co-accused. Despite this fact, the subpoena has not occurred in the context of his own trial, and as such we cannot consider him as a party to the criminal proceedings which generated the order he wishes to challenge. He is a third party to the trial of Lefort, and consequently, he must follow the procedures for third parties as outlined in Dagenais.
XVI. As the order in question has been issued by the Provincial Court, the appellant must challenge it by seeking the extraordinary remedy of certiorari from a superior court judge. Technically, of course, the appellant has not followed the correct procedure as he sought relief in the form of a s. 24(1) Charter remedy and by means of prohibition. However, neither the appellant nor the superior court judge had the benefit of the reasons of this Court in Dagenais to guide them. If one examines the nature of the application made by the appellant, there is considerable resemblance between prohibition and the s. 24(1) remedy sought, and the expanded notion of certiorari developed in Dagenais. In that respect, both approaches involve applications for prerogative writs. Since the remedy sought by the appellant is substantially similar to the type that could be sought through certiorari after Dagenais, we are of the view that the proceedings in the present case should, for the purposes of determining jurisdiction, be treated as tantamount to a Dagenais certiorari application. Indeed, we should presume that the appellant would have framed his application in the proper manner had this Court's decision in Dagenais been available to him at the time.
XVII. Because we are willing to consider that the appellant has in effect complied with the requirements set out in Dagenais, we find that this Court has jurisdiction.
B.Issue 2: Are persons separately charged with an offence compellable as witnesses at the preliminary inquiries of other persons charged with the same offence, or would compellability in this context violate s. 7 of the Charter ?
XVIII. Geatros J. adopted the reasoning of Praisoody, supra, in quashing the subpoena issued against Primeau. The approach adopted by Geatros J. is not in accordance with our decision in British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, released concurrently, and the Court of Appeal was right to allow the appeal.
XIX. The argument of the appellant focuses attention upon his status as an accused person, and excludes analysis of the purpose for which the state wishes to compel his testimony. As expressed by Iacobucci J. in his reasons in S. (R.J.), supra, this focus is inappropriate. Those reasons, which were elaborated on in Branch, indicate that, even if separately charged as an accused person, a witness appearing in another person's criminal trial will ordinarily be compellable in that criminal trial unless it is established that the predominant purpose in compelling the testimony is incrimination of the witness. If that be the case, then a similar test must be applied in respect of the preliminary inquiry, since the criminal trial might never be reached if the Crown is unable to call proposed trial evidence at that inquiry. Finally, there is no evidence to suggest that the predominant purpose of the preliminary inquiry is a form of proposed pre-trial interrogation in respect of Primeau or is otherwise objectionable, such that a different analysis might have obtained on the basis of the reasons expressed in S. (R.J.) and Branch.
VI. Disposition
XX. Primeau was properly compellable at the preliminary inquiry against Lefort. At subsequent proceedings against him, Primeau would be entitled to the protections against self-incrimination described in S. (R.J.) and Branch. We would therefore dismiss the appeal.
The following are the reasons delivered by
XXI. L'Heureux-Dubé J. -- This case raises the issue of whether it is consistent with s. 7 of the Canadian Charter of Rights and Freedoms to compel a person charged separately with an offence, here the appellant, to testify at a criminal proceeding of another person charged with an offence arising from the same set of circumstances. In addition to this substantive issue, this case also raises a jurisdictional issue concerning whether and how a witness can challenge a subpoena or other order issued by a justice of the peace or a provincial court judge compelling him to testify at a criminal proceeding. In particular, it is necessary to determine whether this Court has jurisdiction to entertain this appeal.
XXII. I have read the joint reasons of my colleagues Sopinka and Iacobucci JJ. on these two questions. While I agree with their conclusion that this Court has jurisdiction to hear this appeal and that the appellant is compellable at the preliminary inquiry of Jerry Allan Lefort, I do not entirely agree with their reasons to this effect.
I. Facts and Proceedings
XXIII. The appellant and Rory Michael Cornish are jointly charged with the first degree murder of Calvin Aubichon. On a separate information, Lefort is also charged with the first degree murder of Aubichon. The appellant was subpoenaed by a provincial court judge to testify at the preliminary inquiry of Lefort (an order of production was obtained since Primeau was on remand). In response, the appellant applied to the Court of Queen's Bench, pursuant to s. 24(1) of the Charter , for an order not to be compelled to testify at the preliminary inquiry in question. The appellant also applied for a writ of prohibition to prevent the Provincial Court judge from compelling his presence at the preliminary inquiry and from requiring him to testify. On March 30, 1993, Geatros J. of the Saskatchewan Court of Queen's Bench granted the appellant's motion on the basis that the appellant's rights under s. 7 of the Charter would be violated if he were compelled to testify at the preliminary inquiry: (1993), 108 Sask. R. 193. On June 7, 1993, the Court of Appeal for Saskatchewan allowed the respondent's appeal: (1993), 113 Sask. R. 4, 52 W.A.C. 4, 85 C.C.C. (3d) 188, 17 C.R.R. (2d) 356. It is from this decision that the appellant appeals to this Court.
II. Analysis
A. Jurisdiction
XXIV. The jurisdictional issue raised by this case concerns whether and how a witness can challenge a subpoena or other order compelling him to testify at a criminal proceeding. This issue is a component of the larger question of whether and how third parties can challenge interlocutory court orders arising out of criminal proceedings. This larger question was recently addressed by this Court in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.
XXV. In Dagenais, this Court considered the procedural avenues through which a third party could challenge a publication ban issued in the criminal context. The majority held that where such a publication ban is issued by a superior court judge, a third party can challenge it by appealing (with leave) directly to this Court. On the other hand, where such a publication ban is issued by a provincial court judge, a third party can challenge it by applying to a superior court judge for a writ of certiorari. The decision of the superior court judge is then subject to appeal to the Court of Appeal, and from there, with leave, to this Court.
XXVI. Technically, Dagenais dealt only with third party challenges to publication bans. However, like my colleagues Sopinka and Iacobucci JJ., I believe that the procedures outlined by the majority in Dagenais are, as an inevitable consequence, also applicable with respect to third party challenges to other court orders, such as subpoenas, issued in the criminal context. In saying this, I do not want to be misunderstood as expressing support for the majority's position in Dagenais. I continue to disagree with many aspects of the majority's decision for the reasons outlined in my dissenting reasons. Nonetheless, despite my concerns, I feel bound to follow the decision of the majority.
XXVII. Applying the decision of the majority to the case at hand, I find that the appellant should have challenged the impugned subpoena through the prerogative writ of certiorari, as expanded in Dagenais. This was not, however, the procedure followed by the appellant. Instead, the appellant sought prohibition and a remedy under s. 24(1) of the Charter . Moreover, the decision of Geatros J. quashing the subpoena was grounded not in prohibition, but in s. 24(1) of the Charter .
XXVIII. While the procedure followed by the appellant in challenging the impugned subpoena was not the one suggested in Dagenais, it nonetheless was, on the facts of this case, open to him. This Court, in R. v. Rahey, [1987] 1 S.C.R. 588, determined that a superior court judge is a court of competent jurisdiction to hear an application for Charter relief such as the one made by the appellant. As well, in the circumstances of this case, the appellant could apply for a writ of prohibition. Although applicants challenging subpoenas issued by provincial court judges in the criminal context should, from now on, follow the procedural route set out in Dagenais, the appellant in this case should not be faulted for having followed a somewhat different procedural route, given that he first applied to quash his subpoena prior to the release of this Court's decision in Dagenais. This said, the question which remains is whether the decision of Geatros J., based as it was on s. 24(1) of the Charter , was subject to appeal.
XXIX. On this question, I note that while the appellant's s. 24(1) application to quash the impugned subpoena differed in form from the procedure outlined in Dagenais, it did not differ in substance. The effect of the appellant's s. 24(1) application was identical to the effect of an application to quash a subpoena by way of certiorari (as expanded in Dagenais). Accordingly, I find that the appellant's application was tantamount to such an application for certiorari. Following the reasoning of this Court in R. v. Jewitt, [1985] 2 S.C.R. 128, I conclude that the appellate procedure set out in Dagenais with respect to an application for certiorari is also available in the case at hand.
XXX. The above conclusion should not, however, be interpreted as granting a right of appeal from s. 24(1) applications generally. It was clearly held in Mills v. The Queen, [1986] 1 S.C.R. 863, that no right of appeal lies from a decision with respect to an application for a remedy under s. 24(1) of the Charter save where conferred by statute, or, I would add, where established at common law. In the case at hand, however, since the s. 24(1) application to quash the subpoena made by the appellant, a third party to the criminal proceedings, is identical in substance to an application to quash the subpoena through the writ of certiorari (as expanded in Dagenais), form must yield to substance and the appeal rights set out in Dagenais from an application for certiorari must be available. Such a substance over form approach to appellate jurisdiction is consistent with this Court's decision in Jewitt, supra, and with my reasons in R. v. Laba, [1994] 3 S.C.R. 965. To paraphrase the words of Chief Justice Warren of the United States Supreme Court ("The Law and the Future", in Fortune (November 1955), 106, at p. 224), the spirit and not the form of the law keeps justice alive.
XXXI. Examining the "spirit" or the "substance" of the appellant's initial application to the Saskatchewan Court of Queen's Bench, I conclude that it was tantamount to an application for certiorari and that as such was subject to the appellate procedure set out in Dagenais. Accordingly, the respondent could appeal the decision of Geatros J. to the Court of Appeal. Furthermore, the appellant could, with leave, appeal the Court of Appeal's decision to this Court.
XXXII. The above resolves the jurisdictional question raised by this case. However, before moving on to the substantive question concerning the compellability of the appellant, I wish to emphasize that, in my view, if a court order issued in the criminal context would be, according to Dagenais, open to challenge by an affected third party, it must also be open to challenge, through the same procedures, by parties to the criminal proceeding who are also affected by it. It is for this reason that I conclude that, in this case, the Crown, a party to the underlying criminal proceedings, benefits from the same appellate rights as Primeau, a third party, with respect to the challenge of the impugned subpoena. In light of this, I wish to stress that the procedural route used by the Crown in R. v. S. (R.J.), [1995] 1 S.C.R. 451, to appeal a successful application by a third party to quash a subpoena should be avoided. In S. (R.J.), a third party successfully applied to the trial judge to quash his subpoena. As a result of the quashing of the subpoena, the Crown was forced to request that the charges against the accused be dismissed on the basis of insufficient evidence. The Crown then appealed this dismissal on the grounds that the judge erred in quashing the subpoena. While such a procedure was the only option prior to Dagenais, this is no longer the case.
B. Compellability
XXXIII. The substantive issue raised by this case concerns whether it is consistent with s. 7 of the Charter to compel a person charged separately with an offence, here the appellant, to testify at a criminal proceeding of another person charged with an offence arising from the same set of circumstances.
XXXIV. In answering this question, I refer to my concurring reasons in S. (R.J.) which dealt with a similar issue. Applying the considerations I outlined in S. (R.J.), I find that the appellant is compellable in the case at hand as he has not demonstrated that he is within any of the conditions outlined in S. (R.J.) which would allow him to challenge the impugned subpoena. This said, I note that the appellant, if compelled, will enjoy all of the Charter protections outlined in my concurring reasons in S. (R.J.), as well as those of s. 5 of the Canada Evidence Act , R.S.C., 1985, c. C-5 .
III. Disposition
XXXV. For the reasons outlined above, I would dismiss the appeal.
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