Supreme Court of Canada
Patterson v. R., [1970] S.C.R. 409
Date: 1970-01-27
Richard Franklin Patterson Appellant;
and
Her Majesty the Queen Respondent.
1969: October 29; 1970: January 27.
Present: Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Criminal law—Preliminary inquiry—Intent to procure a miscarriage—Written statement to police given by complainant—Magistrate refused production of statement—Whether ruling correct—Whether ruling reviewable on certiorari—Criminal Code, 1953-54 (Can.), c. 51, ss. 237(1), 453(1)(a)—Canada Evidence Act, R.S.C. 1952, c. 307, s. 10(1).
The appellant was charged under s. 237(1) of the Criminal Code with using an instrument with intent to procure a miscarriage. During the cross-examination, at the preliminary hearing, of the woman mentioned in the charge, it appeared that she had given a written statement to the police. The Crown refused the production of that statement and the magistrate ruled that he could not order it to be produced. Defence counsel then closed his cross-examination of the witness. The same course was followed with another witness. The appellant did not make a statement nor call evidence, and he was committed for trial. On a motion by way of certiorari, it was ordered that the preliminary inquiry and the committal for trial be quashed. By a majority judgment, the Appellate Division restored the committal. The appellant was granted leave to appeal to this Court.
Held (Spence J. dissenting): The appeal should be dismissed.
Per Abbott, Martland, Judson, Ritchie and Pigeon JJ.: Production of the statements could not be compelled at that stage of the proceedings and the refusal was not reviewable on certiorari. Lack of jurisdiction is the only ground on which a committal for trial can be reviewed. The refusal by the magistrate did not go to the question of jurisdiction. The power given explicitly by s. 10(1) of the Canada Evidence Act to a judge “at any time during the trial” to require the production of a statement in writing given by a witness, is not given to a magistrate
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during the conduct of a preliminary hearing. The preliminary inquiry is not a trial and should not be allowed to become a trial.
Even if the magistrate was in error, there was no jurisdictional defect. It would be no more than error in the exercise of jurisdiction.
Per Hall J.: On the record, it does not appear that counsel for the appellant was actually deprived of his lawful right to cross-examine the two witnesses given by s. 453(1)(a) of the Criminal Code. If production of a statement made by a witness then under cross-examination at a preliminary hearing is shown to be essential to the full exercise of the right to cross‑examine, then a refusal to order production could result in a denial of natural justice, and such a denial would be a failure in the observance of the law in the course of exercising jurisdiction. But that was not the situation here.
Per Spence J., dissenting: Failure to permit the right of cross-examination conferred by s. 453(1)(a) of the Code is a failure to accord the accused an important right granted him by the Criminal Code and a denial of jurisdiction by the magistrate. Certiorari should be granted to bring the record before the Supreme Court and to quash the preliminary hearing. Certiorari does lie to quash a magistrate’s committal for trial when he has exceeded his jurisdiction or when he has refused to exercise his jurisdiction. When the magistrate refused to require the production of the statements so the counsel for the accused could use it in cross-examination, he not merely made an error in the exercise of his jurisdiction but he declined jurisdiction.
APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division, restoring the committal for trial which had been quashed on a motion by way of certiorari. Appeal dismissed, Spence J. dissenting.
M.I. Shannon, Q.C., for the appellant.
B.A. Crane, for the respondent.
The judgment of Abbott, Martland, Judson, Ritchie and Pigeon JJ. was delivered by
JUDSON J.—The issues in this appeal are, first, whether, at a preliminary hearing, counsel for
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the defence may require production of a statement given to the police by a witness for the prosecution, and second, whether a ruling on this point adverse to the defence is reviewable on certiorari. My opinion is that production of such a statement cannot be compelled at this stage of the proceedings and that a refusal of production is not reviewable on certiorari.
The accused was charged under s. 237(1) of the Criminal Code with using an instrument with intent to procure a miscarriage. During the cross-examination of the woman mentioned in the charge, it appeared that she had given a written statement to the police. There was an immediate request for its production. It was refused and the magistrate said that he could not order it to be produced “at this time.” Defence counsel then closed his cross-examination of this witness. The same course was followed with another witness. After the Crown witnesses had given their evidence, the accused did not make a statement nor call evidence. The magistrate then committed him for trial. He did not in any way limit or restrict the cross‑examination. Counsel made no attempt to cross-examine on the contents of the two statements or the recollection of the witness of those contents. He simply said that he had no further questions.
On a motion by way of certiorari, Milvain J. ordered that the preliminary inquiry and committal for trial be quashed. The Appellate Division, by a majority, reversed this order and restored the committal. The appeal is here with leave of this Court.
I intend to confine these reasons within the very narrow issues raised by the case and to repeat what has been emphasized so often that if it is sought to review a committal for trial, there is only one ground for action by the reviewing Court and that is lack of jurisdiction. The refusal by the magistrate, on this hearing, to order production of these statements does not
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go to the question of jurisdiction. In the first place, I think that his ruling was correct and, further, even if it was in error that there would still be no problem of jurisdiction.
The reason for the quashing of the committal by Mailvain J. was that the refusal to order production constituted a denial of the right “of full cross-examination and consequently of natural justice.” The right to cross-examine is given by s. 453(1) of the Criminal Code in these terms:
453. (1) When the accused is before a justice holding a preliminary inquiry, the justice shall
(a) take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross‑examine them.
By s. 10(1) of the Canada Evidence Act, the judge, “at any time during the trial”, may require the production of a statement in writing given by a witness. The section reads:
10. (1) Upon any trial a witness may be cross-examined as to previous statements made by him in writing, or reduced to writing, relative to the subject-matter of the case, without such writing being shown to him; but, if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing that are to be used for the purpose of so contradicting him; the judge, at any time during the trial, may require the production of the writing for his inspection, and thereupon make such use of it for the purposes of the trial as he thinks fit.
This power is given explicitly to a judge “at any time during the trial.” It is not given to a magistrate during the conduct of a preliminary hearing. There is a real distinction here. The purpose of a preliminary inquiry is clearly defined by the Criminal Code—to determine whether there is sufficient evidence to put the accused on trial. It is not a trial and should not be allowed to become a trial. We are not concerned here with the power of a trial judge to compel production during the trial nor with the extent to which the prosecution, in fairness to an accused person, ought to make production after the preliminary hearing and before trial.
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This is a subject which received some comment in the British Columbia Court of Appeal in Reg. v Lantos, and Archbold, Criminal Pleading, Evidence and Practice, 37th ed., para. 1393.
Even if the magistrate, on a preliminary inquiry, had the power to order production and failed to exercise it on request in a case where an appellate tribunal thinks that he ought to have exercised it, I would still hold that there was no jurisdictional defect. It would be no more than error in the exercise of jurisdiction.
I would dismiss the appeal.
HALL J.—The definitive statement relating to certiorari was made by Lord Sumner in Rex v. Nat Bell Liquors, Limited, where at p. 156 he said:
That the superior Court should be bound by the record is inherent in the nature of the case. Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes on two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise. (Emphasis added)
Applying this statement to the instant case requires a consideration of whether on the record it appears that learned counsel for the appellant was actually deprived of his lawful right to cross-examine the two witnesses in question given by s. 453(1)(a) of the Criminal Code. If that was what happened, I would agree with my brother Spence that the committal for trial should be quashed. However, on the record I am unable to come to such a conclusion. What the record shows is as stated by my brother Judson that when the magistrate said he could not order production of the statement which counsel had asked for, counsel closed his cross‑examination
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of the first witness. The same procedure was followed with the second witness. Counsel made no attempt to elicit from the witnesses what the statements given by them contained or whether the evidence then being given was at variance with what was contained in the statements. Had counsel pursued the cross-examinations further he might well have made out a case for the immediate production of the statements.
I am unable to accede to the view that an accused or counsel for an accused at a preliminary hearing is under no circumstances entitled to production of statements given by witnesses for the prosecution who are then being cross-examined. It is my view that if production of a statement made by a witness then under cross-examination at a preliminary hearing is shown to be essential to the full exercise of the right to cross-examine, then a refusal to order production could result in a denial of natural justice, and such a denial would, within the language of Lord Sumner quoted above, be a failure in the observance of the law in the course of exercising jurisdiction, but that was not the situation here.
I agree with my brother Judson that s. 10(1) of the Canada Evidence Act has no application to the situation under review here. It has nothing to do with the right to production generally or as to the time when a witness’ statement in the hands of the prosection should be made available to the defence.
I would dismiss the appeal.
SPENCE J. (dissenting)—This is an appeal from the judgment of the Appellate Division of the Supreme Court of Alberta pronounced on February 14, 1969. In that judgment the Appellate Division, by a majority, granted an appeal from the order of Mr. Justice Milvain (as he then was) pronounced on December 3, 1968. By the latter order, Milvain J. had quashed the committal for trial of the appellant. I have had the advantage of reading the reasons for judgment of my brother, Mr. Justice Judson, and I therefore shall not repeat references to the facts except where some extension is required
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for the purpose of these reasons. With all deference, I must, however, differ from his opinion that the appeal should be dismissed.
It is not my intention to consider the effect of s. 10(1) of the Canada Evidence Act, R.S.C. 1952, c. 307, as that section is, by its express words, confined to a trial, and what is here in issue is the conduct of the preliminary hearing. Nor am I concerned with the provisions of s. 512 of the Criminal Code dealing with material which the accused is entitled to inspect after he has been committed for trial. In my opinion, the appellant’s case is based solely on the provisions of s. 453(1)(a) of the Criminal Code, which reads:
453. (1) When the accused is before a justice holding a preliminary inquiry, the justice shall
(a) take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross‑examine them.
(The underlining is my own.)
Mahadeo v. R. is concerned with the conduct of the trial but the pronouncement made by Sir Sidney Rowlatt at pp. 816 and 817 in reference to the right of cross-examination and the production of documents for that purpose are relevant. There the learned Law Lord said:
There is no question but that they ought to have been produced, and their Lordships can find no impropriety in the letter asking for their production. It is true that upon cross‑examination without the statements Sukraj admitted that he had at first put forward a story of suicide. But it is obvious that counsel defending the appellant was entitled to the benefit of whatever points he could make out of a comparison of the two documents in extenso with the oral evidence given and an examination of the circumstances under which the statements of the witnesses changed their purport.
Again, in Regina v. Churchman and Durham, Label J. at p. 93, said:
At a preliminary hearing an accused person is always entitled to cross-examine for the purpose of
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demolishing the Crown’s case then and there if he can, or, as more frequently happens, for the purpose of demolishing it later at the trial, and where the defence is misidentification he is entitled to the widest latitude in delving into the circumstances of the alleged identification.
I should point out that the issue of identification is an issue in the prosecution of this appellant.
I take it as firmly established and need cite no further authority that the right of cross‑examination conferred by s. 453(1)(a) is a right to full, detailed and careful cross‑examination, and, as pointed out in the two cases which I have cited, a failure to permit that cross-examination is a failure to accord the accused an important right granted him by the provisions of the Criminal Code and, as I wish to extend hereafter, a denial of jurisdiction by the magistrate. That right could not be exercised when the Crown refused to permit counsel for the accused to peruse and use in his cross-examination of the complainant and the second witness the statements in writing which they had previously signed.
The question, therefore, in my view is resolved into whether or not certiorari should be granted to bring the record before the Supreme Court and to quash the preliminary hearing. Preliminary hearings, despite the authorities to which I shall refer hereafter, have been quashed in Canada. Regina v. Churchman and Durham, supra, is only one example. In Re Shumiatcher, the Saskatchewan Court of Appeal were called upon to consider an application for certiorari to quash not only the committal for trial but the indictment of an accused person. Culliton J.A., giving reasons for the Court, refused to quash an indictment holding that the Court of Queen’s Bench, before whom the indictment had been laid, was a Court of co‑ordinate jurisdiction and that, therefore, certiorari did not lie to that court. But in his reasons he made it quite plain that if the application had been taken immediately after the committal for trial by the magistrate where the court would have been
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concerned with the committal only and not with an indictment, the court would have considered such an application, and, further, that the court upon such a consideration would have had a right to consider the evidence given upon a preliminary hearing.
In the present case the application for certiorari was made by virtue of Rule 865 of the Consolidated Rules of Court of the Supreme Court of Alberta, which provides in subs. (1):
Upon receiving the notice so endorsed the magistrate, justice or justices, coroner, officer or clerk, shall return forthwith to the office mentioned therein the conviction, order, warrant, or inquisition, together with the information and evidence, if any, and all things touching the matter and the notice served upon him…
(The underlining is my own.)
Culliton J.A., in so deciding, quoted and accepted the judgment of Williams C.J.Q.B., in R. v. Schellenberg, where the learned Chief Justice said at p. 134:
I have examined all the cases that were cited to me, together with a great many others, and I have come to the conclusion that this is a case in which certiorari will lie and that I have a right and indeed, a duty, to look at the evidence taken before the committing Magistrate.
The view that certiorari should not be granted to quash a committal for trial relies on the authority of the Queen v. The Justices of the County of Roscommon, and particularly on the judgments of Sir Peter O’Brien C.J., at p. 173:
The granting of the writ now sought for would, in my opinion, be fraught with inconvenience and mischief. It would cause great delay and embarrassment in the administration of the law… considerations of hardship are far more than counterbalanced by consideration of convenience. The decision of the magistrate is not in such cases final.
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And of O’Brien J. at p. 176:
It is perfectly alarming to think of the consequence, if in the common tendency, out of a desire to meet a case of flagrant wrong or injustice, to push the law into new and unknown applications, such a fatal invasion of it were allowed. The precedent, as the learned Attorney-General could not but foresee, would be applied to other and different cases. Other people would come here. It is needless, in a law-abiding country, to specify a class who would be frequent in their attention to the Queen’s Bench. But in the case of a powerful or wealthy offender he would have a thousand chances against justice. All that money and influence, and power and false art could do under the urgency of the strongest of human motives—the desperation of a struggle for reputation, liberty, or life—would be brought to bear, to the last extremity, to avert, or postpone, or prejudice prosecutions, until, in fact, the criminal law was choked in the fountain.
I am doubtful of the persuasive effect of a judgment given in Ireland in the troubled times of 1894 to guide the administration of the criminal law in Canada in 1968-69, but, in addition, would point out that Ruttan J. in Re Popoff, regarded the statements therein only as dicta and that view was quoted with approval by Culliton J.A., in Re Shumiatcher, supra, at p. 117. Harvey C.J.A., in Rex v. Solloway and Mills, spoke of the importance to the accused of a complete preliminary inquiry:
It is true that a preliminary inquiry is not a trial and the outcome not being necessarily final is not as serious as a trial but it may be a final disposition if no case is made out and the defence ought to be given a fair chance by cross-examination of Crown witnesses or production of evidence to show, if it can, that what might otherwise appear to be a prima facie case of guilt should have an innocent construction placed upon it. As Mr. McGillivray has said, under our system of jurisprudence guilt is never presumed but the Crown authorities after months of investigation of the defendants’ records have found something, which to them, furnishes evidence of guilt and which, without explanation,
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might justify the sending of the defendants to a higher Court. If upon a trial later, they were found “not guilty” they would have suffered, for which they would have no redress, not merely the great expense involved in their defence, and perhaps other financial loss and the injury to their reputation temporary, if not even permanent, but also the mental anxiety of which there can be no monetary measure.
I agree that certiorari will not lie merely to correct errors made by a magistrate in the performance of his duties, nor to permit a review of the exercise of the magistrate’s discretion as to whether or not the accused should be committed for trial. I am, however, of the view that certiorari does lie to quash a magistrate’s committal for trial when he has exceeded his jurisdiction or when he has refused to exercise his jurisdiction. In the Queen v. Marsham, Lord Halsbury said, at p. 375:
The Divisional Court refused to grant a rule for a mandamus upon the ground that, whether the magistrate was right or wrong, all he did (upon the hypothesis of his being wrong) was improperly to reject evidence, and that the proper remedy being by appeal, the Court could not interfere by mandamus. No doubt a magistrate may improperly reject evidence, and the Court may be unable to set him right, and the question is, whether this case comes within that category. I think that it does not; the act of the magistrate was not a mere rejection of evidence, but amounted to a declining to enter upon an inquiry on which he was bound to enter; he has not merely rejected evidence, but has declined jurisdiction, and, therefore, the right of the applicants to call upon him to exercise his jurisdiction is enforceable by mandamus.
In that case the magistrate had refused to hear defence evidence that part of the sum which the Lewisham District Board of Works claimed from the defendant as a proportionate part of the expenses for paving a new street were not in fact such expenses. Lord Esher, M.R., said at p. 378:
Now, the form in which he is said to have declined jurisdiction is, that he refused to hear certain evidence which was tendered before him, and it is suggested on behalf of the board that such refusal,
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at the most, only amounted to a wrongful refusal to receive evidence, and not to a declining of jurisdiction. The distinction between the two is sometimes rather nice; but it is plain that a judge may wrongly refuse to hear evidence upon either of two grounds: one, that even if received the evidence would not prove the subject-matter which the judge was bound to inquire into; the other, that whether the evidence would prove the subject-matter or not, the subject-matter itself was one into which he had no jurisdiction to inquire. In the former case the judge would be wrongly refusing to receive evidence, but would not be refusing jurisdiction, as he would in the latter. Here the magistrate does not say that the evidence tendered would not prove the fact that the claim of the board included matters outside the statute; he has refused to hear the evidence, even though it would prove that fact; he has, therefore declined jurisdiction.
Those statements were accepted in this Court in Toronto Newspaper Guild v. Globe Printing Company. Applying them to the present case I am of the opinion that when the magistrate refused to require the production of the statements made by the complainant and her witness so the counsel for the accused, the present appellant, could use them in cross-examination of such witnesses, he not merely made an error in the exercise of his jurisdiction but he declined jurisdiction. The present Chief Justice in this Court said in Smith v. The Queen:
As to the suggestion that the writ of certiorari should be refused in this case as a matter of discretion, in my opinion the rule by which the Court should be guided is accurately stated in the following passage in Halsbury’s Laws of England, 3rd ed., vol. 11, p. 140:
Although the order is not of course it will though discretionary nevertheless be granted ex debito justitiae, to quash proceedings which the Court has power to quash, where it is shown that the Court below has acted without jurisdiction or in excess of jurisdiction, if the application is made by an aggrieved party and not merely by one of the public and if the conduct of the party applying has not been such as to disentitle him to relief;…
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