Viau v. The Queen, (1898) 29 SCR 90

Supreme Court of Canada

Viau v. The Queen, (1898) 29 SCR 90

Date: 1881-06-10

CORDELIA VIAU

Appellant;

And

HER MAJESTY THE QUEEN

Respondent.

1898: Oct 13

PRESENT-: Sir Henry Strong C.J. and Taschereau, Sedgewick, King and Girouard JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE.)

Appeal — Jurisdiction — criminal law — Criminal Code, 1892, ss. 742-750—New trial—Stutete, construction of—55 & 56 V. c. 29, s. 742.

An appeal to the Supreme Court of Canada does not lie in cases where a new trial has been granted by the Court of Appeal under the provisions of the Criminal Code, 1892, sections 742 to 750 inclusively.

The word " opinion" as used in the second subsection of section seven hundred and forty-two of "The Criminal Code, 1892," must be construed as meaning a "decision" or "judgment" of the Court of Appeal in criminal cases.

APPEAL from the judament of the Court of Queen's Bench for Lower Canada, (Appeal Side) ([1]) on an appeal from the Court of Queen's Bench (crown side) in the District of Terrebonne, by which the verdict of guilty against the appellant was quashed and set aside

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and a new trial ordered upon the indictment for murder presented against her.

The appellant was indicted for murder, and upon her trial the jury found a verdict of guilty on the 2nd February, 1898. In the course of the trial, objections were raised by counsel for the prisoner against the reception of some of the evidence adduced, upon four points, as follows:

"1. That certain admissions alleged to have been made by the prisoner, had been obtained under the influence of improper inducements by persons in authority;"

"2. That the prisoner's deposition made before the coroner at the inquest was not admissible in evidence against her.

"3. That the evidence of a witness who was under accusation of having been a party to the murder, was not admissible against her; and

"4. That secondary evidence of the contents of two letters was not admissible, as there was no proof that their production was impossible."

The first point was reserved as a question of law by the presiding judge on the trial, but he refused to reserve the case upon the three other objections raised on behalf of the prisoner. Leave to appeal on the three last points was subsequently obtained on application to the Attorney General for Quebec and the trial judge accordingly stated the case to be sub mitted to the Court of Queen's Bench, sitting in appeal, for the opinion of the court upon all the objections so taken.

The Court of Appeal decided:

1. That it did not appear that the confession had been made under the influence of improper inducements, but was free and voluntary, and admissible as evidence before the jury;

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2. That the deposition before the corner should not have been received in evidence at the trial in consequence of the provisions of the Canada Evidence Act, 1893;

3. That the evidence of the witness accused of having been a party to the murder was admissible as he had not been indicted jointly with the prisoner, and was not being tried jointly with her; and

4. That the secondary evidence of the contents of the letters should not have been admitted, as it had not been proved that it was impossible to produce them, nor even that they had ever existed.

The Court of Appeal accordingly ordered and adjudged that there had been a mistrial; that the verdict against the prisoner should be quashed and set aside, and a new trial of the prisoner had upon the indictment, two of the judges of the Court of Appeal dissenting from the opinion of the majority of the court, upon the question as to the admission of the confession in evidence.

The prisoner on this appeal did not attack the order in a new trial but her object was to obtain a reversal of the decision that the confession had been properly admitted in evidence, and was based upon the dissent of these two judges upon that question as above mentioned.

On the appeal being called for hearing a motion was made to quash the appeal for want of jurisdiction.

Cannon Q.C., Assistant-Attorney-General for Quebec,

for the motion. No appeal lies, inasmuch as the conviction was not affirmed on the appeal to the Court of Queen's Bench, but on the contrary the conviction was quashed and set aside by the judgment of the Court of Queen's Bench and a new tidal granted. See Criminal Code, s. 750.

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Poirier contra The appeal in the court below was on several grounds, and as to one of the questions raised, that respecting the admission of the confession in evidence, the decision of the Court of Queen's Bench affirmed the decision of the trial judge allowing this evidence to go to the jury. We contend that the decision is not according to the law of evidence that should govern the case, and it may have a serious effect to the prejudice of the prisoner on her new trial unless that part of the judgment is reversed on the appeal now sought to this court. There are dissents from this part of the judgment by two of the judges who heard the appeal in the court below, and consequently an appeal on this ground should be allowed, as was done in the case of Mclntosh v. The Queen ([2]), for there has been upon this point both affirmance and a dissent as contemplated by the statute.

The judgment of the court was delivered by:

THE CHIEF JUSTICE (Oral.) The court is unanimously of opinion that there is no jurisdiction to entertain the appeal in this case. Section 742 of the Criminal Code, 1892, makes provision for appeals to this court where there has been dissent in the Court of Appeal, but that appeal is given only as there in after provided; this proviso refers to section 750 of the Criminal Code, by which such appeals are restricted to cases where the judgment of the majority of the Court of Appeal has affirmed the conviction on an appeal under section 742. in the present case the Court of Appeal did not affirm the conviction, but on the contrary quashed it and set it aside upon two of the grounds raised by the appellant and directed a new trial upon the indictment. This distinguishes the case from that of McIntosh v. The Queen (1) in which

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the decision appealed from was affirmed by the Court of Queen's Bench. In this case, although the majority of the Court of Appeal affirmed the decision as to the admission of the confession in evidence against the prisoner, and two of the judges who heard the appeal dissented from the view of the majority of the court upon that question, yet this difference of opinion and the questions raised as to the confession and whether it was improperly obtained, and what effect this opinion of the majority of the Court of Appeal might have at the new trial of the prisoner, cannot in any manner affect the competence of this court. The jurisdiction of this court depends entirely upon the statutes from which it derives its powers in both civil and criminal matters, and we are given no jurisdiction to hear appeass in criminal cases except in those where there has been not only an affirmance of the conviction but also some dissent among the judges in the Court of Appeal. We have been given no jurisdiction in cases where the Court of Appeal by a unanimous judgment has ordered a new trial.

In section 742 the word "opinion" must be construed as meaning the decision or judgment of the court as clearly appears on reading the context contained in the first sentence of the subsection in which that word is used.

The appeal must be quashed.

Appeal quashed.

Solicitor for the appellant: Poirier & Leduc.

Selicitor for the respondent: L. J. Cannon.