Sayers v. The King, [1941] SCR 362

Supreme Court of Canada

Sayers v. The King, [1941] S.C.R. 362

Date: 1941-05-30

Arthur Sayers and Joe Hall Appellants;

and

His Majesty The King Respondent.

1941: May 30.

Present: Rinfret, Crocket, Davis, Hudson and Taschereau JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Charge of conspiracy to steal—Option by accused for trial before a judge without a jury—Speedy trial—Bill of indictment later signed by the Attorney-General for trial before a jury—Whether this procedure was a sufficient compliance with section 825 (5) Cr. C. Question of jurisdiction of trial court ought to have been raised as special plea before arraignment.

The appellants, charged with conspiracy to commit the crime of stealing, made the option to be tried by a judge, without the intervention of a jury, under the provisions of section 827 of the Criminal Code. But, as such offence was punishable with imprisonment for a period exceeding five years, the Attorney-General could "require" that the charge be tried by a jury, under the provisions of subsection 5 of section 825 of the Criminal Code. After the election made by the appellants for a speedy trial, the Attorney-General preferred a bill of indictment over his own signature for a trial before a jury. Such trial took place and the appellants were found guilty. The ground of appeal was that, under section 825 (5) Cr. C, there must be a definite statement in writing by the Attorney-General that he " required" that the charge be tried by a jury and that the mere signature of the Attorney-General on a bill of indictment did not constitute sufficient compliance with that section.

Held that the preferment of a bill of indictment by the Attorney-General over his own signature for a trial before a jury was a sufficient compliance with section 825 (5) of the Criminal Code. There are no form or words specified to indicate that the Attorney-General "requires" the charge to be tried by a jury. In the present case, it must be assumed that the Attorney-General had knowledge of

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the facts in respect to the election made by the appellants, which were of public record, and that, when he intervened by preferring an indictment over his own signature for trial before a jury, he did so for the purpose of complying with section 825 (5) Cr. C. and of exercising the right conferred upon him by that section. Moreover, it is no longer open to the appellants to question before this Court the jurisdiction of the trial court; that was a matter for special plea before arraignment and before pleading the general issue. The appellants, by not having raised then the question of jurisdiction, have waived any right to put forward such a contention, even if the preferment under the signature of the Attorney-General had not been otherwise sufficient and effective under section 825 (5) Cr. C.

Minguy v. The King (61 Can. S.C.R. 263); Collins v. The King (62 Can. S.C.R. 154), and Giroux v. The King (56 Can. S.C.R. 63) discussed.

APPEAL from the judgment of the Court of Appeal for British Columbia affirming the conviction of the appellants on a charge of conspiracy to steal, after trial by a jury.

The material facts of the case and the questions at issue are stated in the above head-note and in the judgment now reported.

R. A. Hughes for the appellant.

W. L. Scott K.C. for the respondent.

The judgment of the Court was delivered by

RINFRET J.—In this case, the appellants had made the option to be tried by a judge, without the intervention of a jury (s. 827 Cr. C.). But, as the offence charged was punishable with imprisonment for a period exceeding five years, the Attorney-General could require that the charge be tried by a jury, notwithstanding the consent of the appellants to be tried by a judge alone (s. 825, ss. 5 Cr. C.): "Thereupon," so it is enacted, " the judge shall have no jurisdiction to try or sentence the accused under this Part" (i.e., under Part XVIII, Speedy trial of indictable offences).

After the election made by the appellants for a speedy trial, the Attorney-General preferred a bill of indictment over his own signature for trial before a jury.

The question is whether this was a sufficient compliance with s. 825 (5) of the Criminal Code.

In the Court of Appeal, the Chief Justice of British Columbia decided that it was sufficient, and McQuarrie

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and McDonald JJ.AA. agreed with him, thus forming the majority of the Court. Sloan and O'Halloran JJ.AA. dissented.

It was argued before us that the form in which the indictment was signed by the Attorney-General was nothing more than the form adopted under the practice in British Columbia, where the indictment is usually preferred by the Attorney-General; and it was said that the appellants could not be deprived of the benefit of the election they had made, except by a requirement couched by the Attorney-General in terms which unmistakably implied action under subs. 5 of s. 825 Cr. C.

It so happens that this Court has not so far given a final decision on the point so raised. In Minguy v. The King[1], the indictment had been signed by the Crown Prosecutors on behalf of the Attorney-General, but in addition to this the indictment carried the following endorsement:

Le présent acte d'accusation (indictment) est porté devant le grand jury par ordre du soussigné procureur général de la province de Québec.

(Signé) L. A. Taschereau,

Proc. Général de la prov. de Québec.

Sir Louis Davies C.J. and Duff J., as he then was, held that the "requirement" signed by the Attorney-General was in compliance with section 825 Cr. C. Of the other members of the Court, Anglin, Brodeur and Mignault JJ. did not find it necessary to decide the point, because they were of opinion that the election for a speedy trial made by the accused before a District Magistrate was not valid. Idington J. dissented on the ground that the election made by the accused was valid and "any irregularity could not affect the appellant's right." There was, therefore, no majority decision on the question whether the endorsement signed by the Attorney-General of Quebec in the form above reproduced could be held to comply with sec. 825 (5) Cr. C., the appeal having been dismissed on a different point in respect to which the majority of the Court was in agreement.

In Collins v. The King[2], the accused was held not to have elected for a speedy trial. The indictment was preferred before the Grand Jury by the Crown Attorneys, who had signed it in the following way:

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L. A. Taschereau, by Aimé Marchand, Lucien Cannon, duly authorized.

And the endorsement found upon it was:

This indictment is preferred by the undersigned, the Attorney-General for the Province of Quebec.

L. A. Taschereau,

Attorney-General for the Province of Quebec

Duff J., as he then was, and Brodeur J. held that the right of the appellant to elect to be tried summarily had been taken away by the " requirement" made by the Attorney-General for a jury trial, the preferment of the indictment by the Attorney-General under s. 873 Cr. C. constituting such requirement within the meaning of sec. 825 (5) Cr. C. But Idington J. was of the opinion that the accused, having previously renounced any desire for a speedy trial and having later pleaded to the indictment without raising any objection, had waived any right he had for a speedy trial. Anglin and Mignault JJ. found that the application made on behalf of the accused for a postponement of the trial to permit him to re-elect was not an election for a speedy trial. In the result, the appeal was dismissed, but as will be seen, again there was no majority decision on the point whether the preferment of the indictment in the form above stated was a sufficient compliance with sec. 825 (5) Cr. C.

In the Collins case[3], however, there are to be noted the following statements made by the respective members of the Court:

By Idington J.:

The accused, having been charged before the magistrate, expressly renounced any desire for speedy trial without jury and later notwithstanding pleaded to the indictment without raising any sort of objection thereto, in my opinion, had waived any legal right he had up to that time to elect for a speedy trial.

He further referred to Giroux v. The King[4], another decision of this Court, where Sir Charles Fitzpatrick C.J. observed (p. 67):

To sum up. Both courts had jurisdiction to try the offence. Assuming that the prisoner had by his plea to the indictment selected his forum and acquired the right to be tried by a jury, it was open to him to waive that choice and he was free to forego the privilege of a trial by a jury. Consent cannot confer jurisdiction, but a privilege defeating jurisdiction may always be waived if the trial court has jurisdiction over the subjectmatter.

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I venture to say that to set aside the proceedings below would in the circumstances of this case amount to a travesty of justice.

Reverting to the Collins case[5], the present Chief Justice of this Court said:

In Minguy v. The King[6], I concurred in the opinion of the Chief Justice of this Court that where the Attorney-General prefers a bill of indictment under sec. 873 or where the bill of indictment is, by the special direction of the Attorney-General, so preferred, that, in itself, constitutes a requirement that the case should be tried by a jury within the meaning of section 825, ss. 5.

I am not at all impressed by the argument that the power given by section 873 is a different power from that given by ss. 5 of sec. 825. They are not the same power, no doubt; but it does not follow that each must be exercised by an independent proceeding. A proceeding under sec. 873 may and prima facie does import a determination that the accused shall be tried by jury, a determination negativing his right to be tried without a jury and at all events, in the absence of some qualifying declarations, it is an exercise of the authority given by sec. 825, ss. 5.

Brodeur J., in the same case, said (p. 163):

II me semble que la signature du procureur-général sur l'acte d'accusation constitue cette demande dont parle l'article 825-5 du code criminel. Je serais enclin â croire d'un autre côté également que du moment que le procureur-général, sous l'article 873, porte devant le grand jury une accusation, qu'il y ait eu enquéte préliminaire ou non, dès ce moment lá la cour du Banc du Roi est dûment saisie de la cause et qu'elle peut la juger et en disposer. Nous n'avons pas à examiner ce qui s'est passé anterieurement; et si l'accusé, comme il l'a fait dans le cas actuel, demande un procès expéditif, la cour a parfaitement le droit de lui refuser ce privilège et de procéder à faire juger la cause par un jury.

Dans le cas actuel, je considère que l'action du procureur-général en signant lui-même l'acte d'accusation démontre d'une manière explicite qu'il requérait que la cause fût jugée par un jury.

It is to be further noted that Mr. Justice Brodeur was one of the judges who sat in the Minguy case[7], and it follows that if he had found himself called upon to decide that case on the question whether the requirement there signed by the Attorney-General was in compliance with section 825, he would evidently have come to the same conclusion as that reached by him in the Collins case[8], which would have meant a majority decision on that point in the Minguy case[9].

It will, therefore, appear from the several pronouncements made in this Court on the matter under discussion that, so far, three judges: Sir Louis Davies C.J., the present Chief Justice, and Brodeur J., have expressed the opinion

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that the endorsement signed by the Attorney-General in Minguy[10] and in Collins[11] was a sufficient requirement that the charge be tried by a jury; and no contrary opinion has been, so far, expressed by any judge in this Court; in each instance, the judges who took part in the decisions having proceeded upon different grounds.

As stated by the Chief Justice of British Columbia, no form or words are specified to indicate that the Attorney-General requires the charge to be tried by a jury.

In the present case, it must be assumed that the Attorney-General had knowledge of the facts in respect to the election made by the appellants, which were of public record, and that, when he intervened by preferring an indictment over his own signature for trial before a jury, he did so for the purpose of complying with sec. 825 (5) Cr. C. and of exercising the right conferred upon him by that section.

We can see no distinction in the pertinent sense between the endorsements signed by the Attorney-General in the cases of Minguy[12] and of Collins[13], and the indictment preferred by the Attorney-General in the present case under his own signature.

Moreover, it is not open to the appellants now to question the jurisdiction of the trial court. That was a matter for special plea before arraignment and before pleading the general issue (The King v. Komiensky No. 1[14]; Rex v. County Judge's Criminal Court, Re Walsh[15]; Rex v. Selock[16], in the Appellate Division of the Supreme Court of Alberta).

Here, the trial court had jurisdiction over the subject-matter. The preferment of the indictment under the signature of the Attorney-General was effective for the purpose of requiring that the charge be tried by a jury; and it did, in fact, bring the charge before the jury. At the opening of the trial at the Assize Court, the accused, assisted by counsel, stood mute, pleaded upon the arraignment, went to trial, examined and cross-examined witnesses, called their defence and addressed the jury. They were content to raise no question of jurisdiction, but rather permit the trial to take its course, in the hope that the

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jury might acquit them; but since the jury did not do so, they now say that the Court had no jurisdiction, and they ask to be sent to another court in order that they may have another opportunity of being acquitted. We are of opinion that, by what they did, they have waived any right to put forward such a contention, even if the preferment under the signature of the Attorney-General had not been otherwise sufficient and effective under sec. 825 Cr. C. This is not a case of a consent conferring jurisdiction upon a court which otherwise has not jurisdiction. In the words of Sir Charles Fitzpatrick C.J. in the Giroux case (1): It is merely the waiver of a privilege which might have defeated the jurisdiction of the trial court which had jurisdiction over the subject-matter. As stated in the judgment of the Privy Council in Nadan v. The King (2),

There can be here no possible question of a disregard of the forms of legal process or the violation of any principle of natural justice.

For these reasons, the appeals are dismissed.

Appeal dismissed.