The King v. Boak, [1926] SCR 481

Supreme Court of Canada

The King v. Boak, [1926] S.C.R. 481

Date: 1925-04-14

His Majesty The King Appellant ;

and

E. W. Boak Respondent.

1925: April 14

Present: Anglin C.J.C. in Chambers.

On Appeal From The Court Of Appeal For British Columbia

Criminal law—Appeal—Conviction for manslaughter quashed by court of appeal—Leave to appeal to Supreme Court of Canada—Sections 1013, 1021, 1011, 1024A Cr. Code—Appeal to court of appeal on objection as to qualification of juror not raised at trial—Right of appeal to court of appeal without leave—Court of appeal judgment conflicting with judgment of another court of appeal in like case.

The Court of Appeal for British Columbia quashed a conviction for manslaughter on the ground of disqualification of a juror by deafness, which disqualification that court found to be established by evidence taken subsequent to the trial. The defendant had not before the verdict raised objection as to the juror's qualification. The Court of Appeal held that the question as to the deafness of the juror and its effect in respect to the trial and conviction was a question of law only, and under s. 1013 (1) (a) of the Criminal Code an appeal to it lay without leave, and it therefore refused leave to appeal as being unnecessary. The Attorney-General for British Columbia moved for leave to appeal to the Supreme Court of Canada.

Held, that, having regard to clauses (b) and (c) of s. 1013 (1), and to s. 1011, of the Criminal Code, the motion should be favourably considered if the pre-requisite of jurisdiction to entertain the projected appeal, viz., conflict between the judgment from which it was sought to appeal and that of any other court of appeal in a like case (Criminal Code, s. 1024A) existed; that decisions prior to the enactment of s. 1013 in 1923 on some of the matters covered by that section might properly be regarded as having been rendered in like cases; that such conflict as aforesaid existed by reason of the cases of Reg. v. Earl (10 Man. R. 303), and Rex v. Battista (21 Can. Cr. Cases 1) ; and the motion should be granted.

MOTION under s. 1024A. of the Criminal Code by counsel representing the Attorney-General of British Columbia for leave to appeal from the judgment of the Court of Appeal for British Columbia[1] setting aside the conviction of the defendant for manslaughter. Leave to appeal was granted by the judgment now reported. The subsequent judgment of this court on the merits has been already reported[2].

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J. A. Ritchie K.C. for the motion.

Geo. F. Henderson K.C. contra.

ANGLIN C.J.C.—Counsel representing the Attorney General of British Columbia moves under s. 1024A of the Criminal Code (10-11 Geo. V., c. 43, s. 16) for leave to appeal from the judgment of the Court of Appeal for British Columbia setting aside the conviction of the defendant for manslaughter. The defendant appealed upon one notice of appeal to the Court of Appeal under s. 1013 of the Criminal Code (13-14 Geo. V, c. 41, s. 9) on grounds of misdirection, non-direction and irregularities in the course of the trial. He also appealed by a second notice on the ground that two of the petit jurors—George Keown and Thomas Worledge—who sat on the trial, were incapacitated by deafness from serving on the jury. Moreover, he at the same time moved the Court of Appeal, on a third and distinct notice of appeal, to quash the indictment on which he had been tried and convicted on the ground that five of the jurors who sat on the alleged grand jury by which it was found had not been "summoned" as grand jurors (Criminal Code, s. 921).

Notice of motion for leave to appeal was given in connection with the matters covered by the notice of motion first mentioned but not in connection with the alleged defects in the constitution of the grand and petit juries. An application for leave to appeal would appear to have been made, however, on the hearing of the appeal in connection with the alleged disqualification of the petit jurors.

The court directed that separate judgments should be pronounced by its several members. (Criminal Code, s. 1013 (5)).

No allusion is made to the subject matters of the notice of motion, first above referred to, in any of the judgments of the appellate judges beyond the statement that error in the judge's charge formed one of the grounds of appeal.

The Court of Appeal consisted of five members. Two of the learned judges (Martin and M. A. Macdonald J.J.A.) would have acceded to the motion to quash the indictment; two (Macdonald, C.J.A. and Galliher, J.A.)

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would have refused it; McPhillips, J.A., while alluding to it as a ground of appeal, expresses no opinion upon the alleged defect in the constitution of the grand jury.

The alleged disqualification of the juror Worledge was either not pressed or was not regarded as of sufficient importance to be noticed in the judgments delivered.

Three of the learned appellate judges (Martin, Galliher and McPhillips) held that the question as to the deafness of the juror Keown and its effect in respect to the trial and conviction of the defendant was a question of law and not a question of fact or a question of mixed fact and law and on that ground refused leave to appeal as unnecessary. They found that the disqualification of Keown was established by evidence taken subsequent to the trial—no doubt under s. 1021 of the Criminal Code (13-14 Geo. V, c. 41, s. 9) (and vide Rex v. Syme[3] )— and on that ground quashed the conviction and directed a new trial. Mr. Justice M. A. Macdonald expressed no opinion on this aspect of the case. The learned Chief Justice dissented holding the question raised as to the disqualification of Keown to be essentially a question of fact or of mixed fact and law, on which an appeal does not lie without leave and that, under the circumstances, which he details, leave to appeal should be refused.

The learned Chief Justice appears to assume the competency of an appeal by leave on this ground; but does not advert to the question, now raised by the Attorney General, whether such an appeal, by the present defendant, is not precluded by the fact that he first raised the objection to the disqualification of the jurors after the verdict.

The decision of the majority of the court clearly involves an adjudication that such an appeal lies; that failure to object to the jurors' disqualification before the verdict does not debar the defendant from making it; and that the Court of Appeal may determine the fact on which alleged disqualification of a juror is based on evidence taken under s. 1021 of the Criminal Code. That the appeal involved merely a question of law and therefore fell within clause (a) of s. 1013 (1) and lay without leave is distinctly affirmed by the formal order of the court. Upon both

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points—the competency of the appeal on an objection to the qualification of the jurors not raised at the trial and the right to have brought the appeal without leave—the judgment from which leave to appeal is now sought is asserted by counsel for the Attorney General to conflict with judgments of other courts of appeal. (Criminal Code, s.2 (7)).

Proceedings in error in criminal cases and the procedure and practice in provincial courts of criminal appeal in respect of motions for or the granting of new trials of persons convicted on indictment have been entirely superseded (Criminal Code, s. 1013(3)). The Court of Appeal must, therefore, have dealt with the defendant's application in the exercise of the appellate jurisdiction conferred on it by s. 1013(1). Indeed the Chief Justice said that

redress in all cases like the present one must be sought by an appeal only.

Having regard to the provisions of clauses (b) and (c) of s. 1013(1) in respect to the need of leave to appeal and to the provisions of s. 1011 that no omission to observe the directions of any Act as to (inter alia) the qualification of a juror shall be ground for impeaching any verdict or shall be allowed for error on any appeal, I think the application of the Attorney General for leave to appeal to this court should be favourably considered if the pre-requisite of jurisdiction to entertain the projected appeal, viz., conflict between the judgment from which it is sought to appeal and that of any other court of appeal in a like case (s. 1024A), exists.

Section 1013 having been enacted only in 1923, a conflicting judgment under it is scarcely to be looked for. But earlier decisions on some of the matters covered by that section are in point and may properly be regarded as having been rendered in like cases.

I regard the decision, in 1894, of the Court of Queen's Bench in Manitoba—then the Court of Appeal for that province (55-56 Vic., (D.) c. 29, s. 3 (e) )—in Regina v. Earl [4] as sufficiently in consimili casu. The court there rejected an appeal based on the ground, first raised after the trial, that one of the petit jurors was unable to understand the language in which the trial had been conducted. The observations of Killam, J., at pp. 312, 313,

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of Taylor, C.J., at p. 308 and of Bain, J., at p. 317 are in point. I do not overlook the distinction between the two cases that deafness is a ground of disqualification under the British Columbia statute (R.S.B.C., 1924, c. 123, s. 6), whereas ignorance of English is not a disqualification under the law of Manitoba.

On the question whether alleged disqualification through deafness is a ground of appeal which falls within clause (a) or within clause (b) of s. 1013(1), the decision of the Court of King's Bench (Que.) in Rex v. Battista (1) is in conflict with the judgment now before us. The appeal there was based on the qualification of a petit juror which it was held "was a question of fact and not a question of law" and " should have been raised before verdict was rendered."

But it may well be that the questions of fact or of mixed fact and law covered by clause (b) are confined to questions in issue between the Crown and the defendant on the trial and that the ground of appeal in the present case arising out of the constitution of the petit jury falls rather under clause (c). (Archbold Cr. PI. Ev. & Pr. (26th Ed.) 338).

For these reasons leave to appeal will be granted. I advisedly refrain from any observation affecting the merits of the case to come before the court. The case may be set down as the first case on the Western list for the session of this court commencing on the 5th of May next.

Motion granted.