R. v. Osborn, [1971] SCR 184

Supreme Court of Canada

R. v. Osborn, [1971] S.C.R. 184

Date: 1970-10-06

Her Majesty The Queen (Plaintiff) Appellant;

and

Frederick John Osborn (Defendant) Respondent.

1969: June 19, 20; 1970: October 6.

Present: Fauteux, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Trials—Abuse of process—Oppression—Charge of possession of cheques adapted and intended to be used to commit forgery—Acquittal—Subsequent charge of conspiring to utter same cheques—Plea of “autrefois acquit” disallowed—Discretion to stay second indictment.

The respondent was indicted on a charge of having had in his possession seven cheques and other papers that were adapted and intended to be used to commit forgery. In September 1966, he was acquitted on a directed verdict. The basis for the directed verdict was that the forgeries were complete so that the cheques could not be held to be adapted or intended to be used to commit forgery. An appeal by the Crown was dismissed. In May 1967, the respondent was indicted on a charge of conspiring with a person or persons unknown to commit the indictable offence of uttering the same seven forged cheques. At the opening of this second trial, a plea of “autrefois acquit” was entered. Counsel for the respondent also urged upon the trial judge that he had a discretion to stay the indictment on the ground that the proceedings were oppressive and an abuse of the process of the Court. The trial judge disallowed the special plea and convicted the respondent. The Court of Appeal directed a verdict of acquittal to be entered on the ground that the trial judge should have exercised his discretion by staying the second indictment because it was so oppressive as to constitute an abuse of the process of the Court. The Crown was granted leave to appeal to this Court.

Held: The appeal should be allowed and the conviction restored.

Per Fauteux J.: The appeal should be allowed.

Per Martland, Judson and Pigeon JJ.: There does not exist in our criminal law a rule that in the case of a multiplicity of charges successively made on

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the same facts, a trial judge has discretion to stay an indictment when, on all the facts of the case, laying it is considered as an injustice amounting to oppression. The duty of the Courts is to apply the law as it exists. There is no legal basis for holding that criminal remedies are subject to the rule that they are to be refused whenever in its discretion, a Court considers the prosecution oppressive. In our legal system, it is not considered unfair or oppressive to have an accused undergo several trials on the same charge when his conviction is quashed even if this happens repeatedly. A different view should not be taken if the error consists in not laying the correct charge so that instead of being irregularly convicted and then ordered to stand a new trial, the accused is acquitted of the incorrect charge and then brought to second trial on a fresh indictment for the correct charge.

Per Ritchie, Hall and Spence JJ.: The question of whether or not the Court has jurisdiction to intervene to prevent an abuse of its process does not fall to be decided because there was here no evidence to support the conclusion of the Court of Appeal that there was oppression. The Court of Appeal placed undue weight on the long delay and the Crown’s intervening appeal. The exercise of its right to appeal cannot be considered as oppression on the part of the Crown. It is a right given by statute. In respect of the delay, the record clearly shows that such delays as did occur were principally attributable to the accused and not to the Crown. The Court of Appeal was therefore wrong in concluding that the trial judge should have stayed the proceedings and was also wrong in interfering with the discretion he exercised in that regard.

APPEAL by the Crown from a judgment of the Court of Appeal for Ontario[1], acquitting the respondent of a charge of conspiring to utter forged cheques. Appeal allowed.

C.M. Powell and Archie Campbell, for the appellant.

C.G. Stewart McKeown and David R.G. Griner, for the respondent.

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FAUTEUX J.—I agree that the appeal should be allowed.

The judgment of Martland, Judson and Pigeon JJ. was delivered by

PIGEON J.—The facts of this case are stated as follows in the reasons of the Court of Appeal for Ontario¹.

On November 23rd, 1965, the appellant, Frederick John Osborn, while being followed by an officer, was seen to throw an envelope from the window of an automobile. In the envelope were found seven forged cheques fully made out to various payees and endorsed. The cheques were complete save as to the dates on them. Also in the envelope were two pieces of paper giving the names of payees, together with the addresses of certain banks and some account numbers. At his trial, the appellant testified that he was directed to the envelope in a cache by one “Frank” who instructed him to cash the cheques in return for one third of the proceeds but that, after only glancing at the contents of the envelope, he had resolved not to cash any of the cheques. There was no other evidence connecting the appellant with the forgery of the cheques.

In November, 1965, the appellant was indicted on a charge that, knowingly and without lawful authority or excuse, he had in his possession certain writings, to wit: seven cheques and two pieces of paper that were adapted and intended to be used to commit forgery, contrary to the Criminal Code, Section 312(b).

After a two day trial with a jury in September, 1966, the appellant was acquitted on a directed verdict. It would appear the basis for the directed verdict was that the forgeries were complete so that the cheques could not be held to be adapted or intended to be used to commit forgery.

An appeal by the Crown was dismissed.

In May, 1967, the appellant was indicted on a charge of conspiring with a person or persons unknown to commit the indictable offence of uttering seven forged cheques.

At the opening of the second trial in January, 1968, the special defence of autrefois acquit was disallowed by the trial judge. Counsel for the appellant also urged upon the trial judge that he had a discretion to stay the indictment on the ground that the proceedings were oppressive and an abuse of

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the process of the Court. No express ruling was made by the trial judge as to whether he considered he had such a discretionary power and, after disallowing the plea of autrefois, he simply directed the trial to proceed. The appellant was convicted.

Appeal is taken to this Court on the sole ground that the trial judge had a discretion to stay or dismiss the indictment on the ground that it was so oppressive and vexatious as to amount to an abuse of the process of the Court and that such discretion should have been exercised in favour of the appellant.

After referring especially to speeches in Connelly v. Director of Public Prosecutions[2], Jessup J.A., speaking for the Court, said:

In civil law the doctrine of res judicata occupies the same place as the plea of autrefois does in the criminal law. But apart from res judicata and Rule 126 the Courts of this Province have from earliest times invoked an inherent jurisdiction to prevent the abuse of their process through oppressive or vexatious proceedings. The principle on which they have acted is stated by Lord Watson in Haggard v. Pelicier Frères, (1892) A.C. 61…

* * *

I am unable to recognize any basis or principle on which such inherent jurisdiction is confined to the civil side of the Courts or why it cannot be invoked to abate oppression caused by a multiplicity of charges successively made on the same facts by a private or Crown prosecutor…

I am not prepared to hold that in the absence of special circumstances the laying of a second indictment upon the same facts is simpliciter and in all cases productive of such injustice as to invoke the Court’s inherent jurisdiction. Everything depends on all the facts of the case. The discretion is to be exercised in favour of an accused only where a real injustice will otherwise result and such a case should be rare. It should always be invoked before arraignment on the indictment alleged to be oppressive and cannot be raised after trial on such indictment. Here, however, I think that the long delay coupled with the Crown’s intervening appeal results in unjust oppressiveness from the second indictment.

With deference, this reasoning is erroneous. The starting point appears to be that in civil mat-

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ters there is admittedly an inherent jurisdiction to prevent the abuse of the process of the Court through oppressive or vexatious proceedings. The case cited to support that assertion, Haggard v. Pelicier Frères[3], is indeed concerned with a question of jurisdiction, the matter under consideration being the contention that the defendant had incurred liability towards the plaintiff in summarily dismissing a case as vexatious because in so doing he had allegedly acted without jurisdiction.

In the instant case, it does not appear to me that I need consider whether the trial judge had jurisdiction to make the order that the Court of Appeal held he should have made. The real problem, in my view, is whether there exists in our criminal law a rule that in the case of a multiplicity of charges successively made on the same facts, a trial judge has discretion to stay an indictment when, on all the facts of the case, laying it is considered as an injustice amounting to oppression. In this Court as in the Court of Appeal, counsel have been unable to cite any case in Canada where such a discretionary rule has been recognized or acted upon other than the obiter dictum of Mackay J.A. in Regina v. LeClair[4].

Concerning the opinions expressed in Connelly v. Director of Public Prosecutions, it is essential to observe that the basis of the difficulty in that case was a most important difference between our criminal law and the criminal law of England in force at that time. Lord Reid said (at p. 1295):

Ever since the passing of the Criminal Appeal Act, 1908, Parliament has persistently refused to permit a retrial in respect of the same offence after a verdict of guilty has been quashed on any ground by the Court of Criminal Appeal. Refusal to allow a new trial has always been put on the ground of fairness to the accused and I cannot see why, if it is unfair to allow a retrial for the same offence, it is fair to allow a fresh trial on the same facts merely because the offence now charged is different.

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In this country, Parliament’s conception of fairness has always been, on the contrary, that when a conviction is quashed (Cr. Code, sec. 592(2)) a new trial can be ordered instead of an acquittal and such is always the order made except in special circumstances.

It is clear that the new “rule of practice” requiring the inclusion in a single indictment of all charges arising out of the same facts, that was proposed in Connelly by Lord Devlin and agreed to by Lord Pearce and Lord Reid, was motivated exclusively by the desire of avoiding in the future the anomalous result noted by the latter in the passage above quoted. Everyone, including Lord Devlin, agreed that this new rule, being a “rule of practice”, should not be applied to the case at hand. Consequently, it was unanimously decided that there had been no unfairness to the appellant in trying and convicting him of robbery after his conviction for a murder committed in the robbery had been quashed for misdirection, the charges of murder and of robbery having been preferred in separate indictments in accordance with the practice followed at the time. In thus upholding a strict application of autrefois acquit in spite of the fact that in reality it deprived the accused of the benefit of the statutory rule against retrials, the majority who expressed themselves in favor of a new rule for future cases, did not in effect differ from the view of the others as to the proper conclusion in the absence of such a rule. The statutory principle motivating that rule in England having no counterpart in our criminal law, the views expressed as to the state of the law apart from the existence of such a rule appear properly applicable to our circumstances. Lord Morris said (at pp. 1301-1302 and 1304):

The power (which is inherent in a court’s jurisdiction) to prevent abuses of its process and to control its own procedure must in a criminal court include a power to safeguard an accused person from oppression or prejudice. That power, as is demonstrated by a stream of authority to which I will refer, has, however, never been regarded as endowing a court with a power to say that evidence given in reference to one charge may not be repeated in reference to another and different charge. Nor does it enable a court to order that a prosecution be dropped merely because of some rather imprecise regret that an accused should have to face another charge…

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It would, in my judgment, be an unfortunate innovation if it were held that the power of a court to prevent any abuse of its process or to ensure compliance with correct procedure enabled a judge to suppress a prosecution merely because he regretted that it was taking place. There is no abuse of process if to a charge which is properly brought before the court and which is framed in an indictment to which no objection can in any way be taken there is no plea such as that of autrefois acquit or convict which can successfully be made.

Lord Hodson said (at pp. 1336 and 1337):

The inherent power of the court to control its own process, civil or criminal, should not prevent access to the courts when a lawful claim is presented. So to hold would involve grave interference with the liberty of the subject to have access to the courts, which I should be surprised to find to be warranted by authority…

I accept that the history of the development of our law justifies the contention that all rules of common law which emanate from the breast of the judges may in a sense be said to be discretionary in origin, but I cannot concede that there ought to be given to the judge a discretion, which, in my opinion, he has not hitherto been allowed, to interfere with anything that he personally thinks is unfair. If one disclaims such a proposal but seeks to substitute a discretion to determine, in accordance with principle, whether or not a prosecution should be stopped, I do not know what principle can be applied.

It is basic in our jurisprudence that the duty of the courts is to apply the law as it exists, not to enforce it or not in their discretion. As a general rule, legal remedies are available in an absolute way ex debito justitiae. Some are discretionary but this does not destroy the general rule. I can see no legal basis for holding that criminal remedies are subject to the rule that they are to be refused whenever in its discretion, a court considers the prosecution oppressive.

In our legal system, it is not considered unfair or oppressive to have an accused undergo several trials on the same charge when his conviction is quashed even if this happens repeatedly. In other words, it is not considered desirable that a criminal should escape punishment for a misdeed

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because an error was committed in his trial that requires his conviction to be quashed. I fail to see why a totally different view should be taken if the error consists in not laying the correct charge so that instead of being irregularly convicted and then ordered to stand a new trial, he is acquitted of the incorrect charge and then brought to second trial on a fresh indictment for the correct charge.

For those reasons I would allow the appeal, reverse the judgment of the Court of Appeal for Ontario and restore the conviction and sentence.

The judgment of Ritchie, Hall and Spence JJ. was delivered by

HALL J.—On November 23, 1965, the respondent was seen by Detective Douglas Baker of the Metropolitan Police Force seated behind the wheel of a 1964 Pontiac automobile, the car being parked on Bloor Street in the City of Toronto. While the car was under observation one Joseph Sullivan approached the respondent, at which time Detective Baker went to the car and identified himself as a police officer. He asked for the respondent’s driver’s license which was not forthcoming. He then questioned the respondent about the car, and being concerned that the car may have been stolen, said that they would have to go to No. 11 Police Station. Detective Baker had Sullivan get in the back seat and he sat in the front seat to the right of the respondent. While proceeding to No. 11 Police Station, the respondent had to drive through a subway on Dupont Street. While in the subway he was observed by Detective Baker to reach down to the car floor, pick up what appeared to be a piece of white paper and throw it out the window on the driver’s side. The paper was seen by Detective Baker to land close to the north curb approximately in the centre of the subway. Detective Baker asked what the paper was and the respondent replied, “Just junk, the car is full of old paper”. On emerging from the tunnel Detective Baker had the respondent make a U-turn and go back in the east-bound lane then make another U-turn and into the subway again. The car was stopped and

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Detective Baker retrieved the paper which he found to be an envelope containing seven cheques and two pieces of paper. On showing them to the respondent, saying “What about these?” the respondent replied: “I don’t know anything about them.” The respondent was directed to continue to No. 11 Police Station. At the police station, after being cautioned, he gave a statement which was ruled admissible after a voir dire to the effect that he had a telephone call from one “Frank” and had been directed to the envelope which was cached in a toilet paper receptacle in the washroom of the Brown Derby tavern. He was to get the envelope, cash what cheques he could, retain one-third of the proceeds and place the balance of the proceeds with any uncashed cheques back in the place where he had found the envelope. He later testified to the same effect at his trial.

The respondent was charged:

that he did, on or about the 23rd day of November, in the year 1965, at the Municipality of Metropolitan Toronto, in the County of York, knowingly and without lawful authority or excuse, had in his possession certain writings, to wit, seven cheques and two pieces of paper, that were adapted and intended to be used to commit forgery, contrary to the Criminal Code.

The case was heard by His Honour Judge Deyman and a jury in September 1966. At the conclusion of the case for the Crown, Judge Deyman, holding that there was no case to go to the jury, directed the jury to bring in a verdict of acquittal on the ground that the cheques were complete and there was no evidence connecting the respondent with the actual forgery of the cheques.

The Crown appealed to the Court of Appeal for Ontario which dismissed the appeal in January 1967. In May 1967 the respondent was indicted on a charge of conspiring with a person or persons unknown to commit an indictable offence, to wit, uttering of seven forged cheques contrary to the Criminal Code. He was remanded for trial and eventually came on for trial on January 22, 1968, before His Honour E.L. Weaver and a jury.

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At the opening of the trial, counsel for the respondent, before plea was taken, entered the special plea of autrefois acquit pursuant to the provisions of ss. 516 to 518 of the Criminal Code. In his submission in support of the plea of autrefois acquit, counsel for the respondent discussed what would be in effect a defence of res judicata. The learned trial judge disallowed the special plea of autrefois acquit. He was right in so doing. His ruling was as follows:

THE COURT: I have come to the conclusion, from a consideration of the law, that the offence as charged here, of conspiring, is a completely different offence to the substantive offence either of possession of forged documents or even of using documents known to be forged. It is a completely different offence and therefore the plea of autrefois acquit, or even of res judicata, does not apply, and I will dismiss your application.

He mentioned res judicata but did not make any reference to the suggestion that the Court should stay the proceedings on the ground that they were oppressive. It is clear from the record that the discussion as to the proceedings being res judicata or being oppressive were incidental to the submission being made on behalf of the respondent in respect of his plea of autrefois acquit. Res judicata is not a special plea within s. 516 of the Criminal Code but is a substantive defence which may, in proper circumstances, be raised during the trial.

Following the learned trial judge’s ruling, the respondent entered a plea of “Not Guilty”, and after a trial on the merits to which no objection has been taken, he was found “Guilty” and sentenced to 18 months in the reformatory.

Following his conviction, the respondent appealed to the Court of Appeal for Ontario by Notice of Appeal dated February 28, 1968, on the grounds:

1. The conviction was contrary to law.

2. The conviction was contrary to the evidence and to the weight of evidence.

3. Upon such further and other grounds as are revealed upon a reading of the transcript of evidence.

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On October 18, 1968, the Notice of Appeal was amended to read:

The learned trial judge erred in the exercise of his judicial discretion in failing to stop a prosecution which on the facts created abuse of process and injustice.

In the Court of Appeal, Jessup J.A. for the Court[5] said:

Here, however, I think that the long delay coupled with the Crown’s intervening appeal results in unjust oppressiveness from the second indictment. In my view, the learned trial judge would have properly exercised his jurisdiction by staying the proceedings before him.

He prefaced his conclusion by saying:

In my opinion, therefore, the learned trial judge should have exercised his discretion as to whether or not he should stay the second indictment on the ground that it was so oppressive as to constitute an abuse of the process of the court. Since he failed to address himself to that decision this Court must do so. I am not prepared to hold that in the absence of special circumstances the laying of a second indictment upon the same facts is simpliciter and in all cases productive of such injustice as to invoke the Court’s inherent jurisdiction. Everything depends on all the facts of the case. The discretion is to be exercised in favour of an accused only where a real injustice will otherwise result and such a case should be rare. It should always be invoked before arraignment on the indictment alleged to be oppressive and cannot be raised after trial on such indictment. (Emphasis added)

I do not think that the question of whether or not the Court has jurisdiction to intervene to prevent an abuse of its process falls to be decided in the instant case because in my view there was here no evidence to support the conclusion of the learned Justice of Appeal that there was oppression. The circumstances which I have outlined in greater detail than might otherwise have been necessary negative any oppressive conduct on the part of the Crown. Jessup J.A. appears to have placed undue weight on what he calls “the long delay”. He accepts the proposition that

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in the absence of special circumstances the laying of a second indictment upon the same facts is not in all cases productive of injustice or oppression. He mentions only two factors: the long delay and the Crown’s intervening appeal. The exercise of its right to appeal cannot be considered as oppression on the part of the Crown. It is a right given by statute and the exercise of that right by the Crown cannot of itself be oppression. Accordingly it would appear that having eliminated the mere preferring of the second indictment as being decisive, Jessup J.A. appears to have been unduly impressed by the delay. Now, in respect of the delay, the record shows that the appeal from the acquittal on the first indictment was disposed of in January 1967. The indictment for conspiracy was preferred to the General Sessions of the Peace for the County of York on May 1, 1967, and the respondent appeared for arraignment on May 12. He was remanded in custody until trial but soon released on bail to appear for trial on September 18, 1967. He did not appear on that date and a bench warrant was issued by His Honour Judge MacRae. An explanation was given that he was in hospital on the morning of September 18 and he was again released on bail to appear for trial on December 1. He did not appear and a bench warrant was issued and the case remanded to December 18 and he was ordered to remain in custody. He was granted bail on an appeal to a judge of the Supreme Court of Ontario and the case remanded peremptorily for trial on January 22, 1968, on which date the trial began.

Then, in regard to the delay between the time of his conviction and his appeal therefrom to the Court of Appeal for Ontario, I pointed out previously that the original Notice of Appeal was dated February 28, 1968, and amended some eight months later on October 18, 1968, and judgment given on November 25, 1968. It is, therefore, clear that such delays as did occur were principally attributable to the respondent and not to the Crown.

I am of the view that the learned trial judge was right in ruling that the charge of conspiracy should be proceeded with and the Court of Appeal was wrong in concluding that he should

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have stayed the proceedings and also wrong in interfering with the discretion he exercised in that regard.

I would, accordingly, allow the appeal and restore the conviction. Leave to appeal was granted on the terms that the appellant would pay to the respondent his costs in this Court, including the costs of the motion for leave to appeal, the whole on a solicitor and client basis in any event of the cause. The order allowing the appeal should, therefore, provide for payment of the respondent’s costs in accordance with the order giving leave.

Appeal allowed.

Solicitor for the appellant: The Attorney General for Ontario, Toronto.

Solicitor for the respondent: C.G.S. McKeown, Toronto.