Supreme Court of Canada
Ead v. The King, (1908) 40 S.C.R. 272
Date: 1908-05-18
Thomas Ead Appellant;
and
His Majesty The King Respondent.
1908: May 13; 1908: May 18.
Present: Girouard, Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.
Appeal—Criminal law—Reserved case—Application for “during trial"—Crim. Code s. 1014(3).
By sec. 1014(3) of the Criminal Code either party may "during the trial" of a prisoner on indictment apply to have a question which has arisen reserved for adjudication by the Court of Appeal.
Held, that for the purposes of such provision the trial ends with the verdict after which no such application can be entertained.
APPEAL from a decision of the Supreme Court of Nova Scotia affirming, on a reserved case, the verdict of guilty on the trial of the appellant for forgery..
The indictment charged appellant with forging a promissory note and the evidence at the trial shewed that he had signed a fictitious name to a blank form of note and given the document to a merchant in payment for goods. He was found guilty, and after verdict his counsel took the objection that the evidence did not warrant a conviction, and asked the judge to reserve a case for the Court of Appeal which he refused to do. On the prisoner's behalf application was then made to the Supreme Court of Nova Scotia, the Court of Appeal for the province under the Criminal Code, and that court made an order directing the trial judge to reserve a case which he did, submitting, with
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a statement of the proceedings, two questions for the Court of Appeal.
1. Does the indictment disclose any criminal offence?
2. In view of the fact that the instrument signed was a blank form of a promissory note, not filled in, was the prisoner rightly convicted of forgery of a promissory note?
The Court of Appeal, one member dissenting, affirmed the conviction and the prisoner appealed to the Supreme Court of Canada.
W. F. O'Connor, for the appellant.
A. C. Morrison K.C. for the respondent.
W. F. O'Connor, for the appellant. An application made before sentence is made "during the trial." See Reg. v. Martin.
The document alleged to have been forged was not a promissory note. Reg. v. Harper; Reg. v. Mopsey; Rex v. Randall.
A. C. Morrison K.C. for the respondent. The application for a reserved case must be made "during the trial"; Crim. Code, sec. 1014(3); and after verdict is too late.
The indictment is good on its face and any defect in the proof of the offence is cured by the verdict. Rex v.Wright; Reg. v. Mason.
The judgment of the court was delivered by
Idington J.—The appellant was indicted for forgery of an alleged promissory note and tried upon
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such indictment at the criminal term of the Supreme Court of Nova Scotia held by Mr. Justice Longley with a jury. The evidence to support the charge was that he signed the name "Thomas Healey" to a piece of paper of which the following is a copy:
$14.00. Nov'r. 18th, 1907.
after date promise to pay to the order of
dollars, at value received.
No. . Due (Sgd.) Thomas Healey.
The evidence further shewed clearly that he was not the person he represented himself to be and whose name he signed and that his signing was fraudulent and to the prejudice of the private prosecutor who had sold him a coat for the price of fourteen dollars in payment of which at the sale thereof he signed and gave the vendor the paper in question.
There was no objection taken to the indictment, the reception of the evidence, or the direction of the learned trial judge, and the accused was found guilty. Thereupon and before sentence was passed, objection was taken, for the first time, that the accused could not on such evidence be convicted of the crime alleged.
The learned trial judge declined to reserve a case as requested upon this objection and sentenced the accused to three years in the penitentiary.
The Supreme Court of Nova Scotia, being the proper appellate court in the premises, was moved on behalf of the prisoner to direct the learned judge to state a case and so directed accordingly.
The learned judge stated with a brief report of the case the following points:
1. Does the indictment disclose any criminal offence?
2. In view of the fact that the instrument signed was a blank form of a promissory note, not filled in, was the prisoner rightly convicted of forgery of a promissory note?
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The Supreme Court of Nova Scotia upon hearing this appeal dismissed it, but Mr. Justice Meagher, one of the Court of Appeal that so heard the appeal, dissented in regard to the second question and held that there should be a new trial.
The prisoner has appealed from that decision.
The objection is taken here, as it was in the court below, that the prisoner had not any such right of appeal, as he was given leave to present, to the said court.
The question thus raised turns upon the interpretation of the Criminal Code, sec. 1014, sub-sec. 3, which can better be considered with and in relation to sub-sec. 2 of the same section. These sub-sections are as follows:
1014 * * *.
2. The court before which any accused person is tried may, either during or after the trial, reserve any question of law arising either on the trial or on any of the proceedings preliminary, subsequent, or incidental thereto, or arising out of the direction of the judge, for the opinion of the court of appeal in manner hereinafter provided.
3. Either the prosecutor or the accused may during the trial, either orally or in writing, apply, to the court to reserve any such question as aforesaid, and the court, if it refuses so to reserve it, shall nevertheless take a note of such objection.
It is urged on the one hand that the words "during the trial" in this sub-section 3 must include everything up to and including the sentencing of the prisoner.
On the other hand, it is said that the plain ordinary meaning of the word trial must be adopted and that according to such reading the trial ends with the verdict of the jury.
I think this latter contention the correct one. A man might never be sentenced, yet he stands convicted when found guilty or acquitted when
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found not guilty and either could successfully plead respectively autrefois convict or autrefois acquit as the necessities of any later case might render necessary. Sentence so uniformly followed a conviction in olden times as to give the passing of sentence a semblance of part of the trial. It was also the point at which long ago most of the serious questions of law raised upon a trial came up for final disposition if not conclusion.
Ever since our Canadian statute (in 1869), 32 & 33 Vict. ch. 29, was passed almost all this has changed.
It was by section 32 of that procedure Act, enacted that objections to any indictment for any defect apparent on the face thereof must be taken by demurrer or motion to quash—before defendant pleaded and not afterwards.
Power of amendment was given the court by the same section in order to meet, if possible, the objection that might be so raised.
Thus far the English legislation, 14 & 15 Vict. ch. 100, was followed. Indeed, our whole criminal legislation of 1869 followed largely this beneficient English reformation of the criminal law. In this instance, however, the Parliament of Canada went a great step in advance of the other. Instead of limiting the peremptory requirement for demurrer or motion to quash to any formal defect, our legislation dropped the word "formal" and made the requirement apply to and prohibited the motion for arrest of judgment in any such case where demurrer might have been upheld or power to amend existed. That now stands virtually the same in our Criminal Code, sec. 898, with sub-sec. 2 as follows:
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898. 2. No motion in arrest of judgment shall be allowed for any defect in the indictment which might have been taken advantage of by the demurrer, or amended under the authority of this Act.
This radical difference between the English and Canadian legislation acted upon in Reg. v. Mason, ought always to be kept in view in reading English authorities in relation to proceedings at trial, including indictment.
The important ground left for such a motion seems to be as stated in the Code by sec. 1007, sub-sec. 1, to be founded on the ground shewn therein, which is as follows:
1007. The accused may at any time before sentence move in arrest of judgment on the ground that the indictment does not, after amendment, if any, state any indictable offence.
This is not as clear as one would wish. Is it only in the case of an amended indictment that the motion lies?
The very comprehensive language of section 989 shews how very limited a field is left for motions in arrest of judgment.
It is quite possible that after a prisoner had pleaded instead of demurring that the indictment might erroneously be amended by a trial judge in such a way as to render it bad in law.
If he should, over-confident of his own judgment, make a mistake in refusing to allow a demurrer to an amended indictment, the only recourse the prisoner would have as of right, save objecting to the amendment and noting of it, would be this motion to arrest judgment.
But is there any reason found in that for the extending of the right of appeal? The accused when the
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motion to amend has been made has every chance to object, and then thus comes within the limited meaning of the words "during the trial" and be able to insist on properly laying a foundation for appeal.
The chances of legal wrong ever being done by a trial judge to the accused after the verdict are almost infinitesimal and so easy of remedy by appeal to the clemency of the Crown that one cannot. see injury likely to result from limiting his rights of appeal to that which transpired before the verdict.
On the other hand if the trial referred to in this sub-section 3 of section 1014 of the Code were extended to include proceedings after verdict then the accused would have left open to him in every case the right to keep silence and only interpose his objections after the verdict when nothing could be amended.
The door would be thus thrown wide open to almost interminable appeals nearly all of which might ultimately prove quite unfounded, yet persisted in would serve the purpose of the accused, who was guilty, but desired, proceedings prolonged until he was quite forgotten, as a satirist tells us happens in the administration of the criminal law where justice is not swift of foot.
There is a marked difference between the provision made in sub-section 2 and that in sub-section 3 of section 1014 of the Code.
The first is intended to cover almost every case that a trial judge can reasonably have brought under his notice for reserving a case.
It entrusts to him the protection of the accused in any case in which the law apparently leading to his conviction may be doubtful.
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The trial judge generally and, if I may be permitted to say so, properly, gives the prisoner the full benefit of any such doubt as he may have by reserving a case.
It is better that a number of cases barely arguable be remitted by this means to an appellate tribunal than that a trial judge should feel oppressed by the risk of being responsible for an illegal conviction.
On the other hand the accused is given as of right every opportunity of contesting the ruling of the trial judge on anything that arises in the progress of the trial.
If this prisoner, for example, had availed himself of this right he could easily have laid the foundation at the proper time for carrying his case to appeal.
Of course his doing so might not have led to acquittal, but might have led to amendments or other proceedings or actions of the court that might have ultimately brought about a conviction of what he was properly chargeable with.
That is, however, what the law is designed to effect.
As to the objection taken to the form of indictment, I doubt if that is properly before us.
The court below was unanimous in upholding it. It is only in case of a dissenting opinion that a prisoner can come to this court as of right.
I think the appeal should be dismissed simply on the ground that an appeal founded on the way it was did not lie either to the court below or to this court.
The case was argued fully on all points both as to the right of appeal and the merits of the objection to a conviction for forgery as of a promissory note where such a note never did exist, but a something so indescribable in law as the paper of which above is a copy.
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I have considered the possibility of holding that, as it was a case in which the learned trial judge might have reserved a case, his doing so might, though in obedience to an order of the court be treated as if originating on his own motion.
Doing so would convert what has been done into a something never intended and not within the contemplation of the Act.
Appeal dismissed.
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