Supreme Court of Canada
Re:
Schumiatcher, [1962] S.C.R. 38
Date:
1961-09-27
In Re Morris C. Shumiatcher
1961: September 18, 26, 27.
Present: Judson J. in Chambers.
Criminal law—Habeas corpus—Counselling to commit perjury
before Registrar of Saskatchewan Securities Commission—Whether examination by
Registrar a judicial proceeding—Registrar's power to examine on oath— Solemn
declaration—Perjury—Powers of Court on habeas corpus—The Securities Act, 1954
(Sask.), c. 89, s. 13—The Saskatchewan Evidence Act, R.S.S. 1953, c. 73, s.
41—Criminal Code, 1953–54 (Can.), c. 61, ss. 22, 112, 114.
The petitioner, a barrister and solicitor, was committed for
trial in Saskatchewan on an indictment of ten charges. Seven charges were that
the petitioner counselled seven named individuals to commit perjury in their
examination before the Registrar of the Saskatchewan Securities Commission held
pursuant to s. 13 of The Securities Act, 1954 (Sask.), and thereby
became a party to the said perjury by reason of s. 22(1) of the Criminal
Code. The other charges were that he counselled and procured one L to make
a false declaration on oath before an authorized person and thereby became a
party to an offence under s. 114 of the Criminal Code. The plaintiff
applied to the Supreme Court of Canada for a writ of habeas corpus on
two grounds: (1) that there was no offence at law shown in the first seven
charges because the examination of the individuals before the Registrar was not
a judicial proceeding within the meaning of s. 112 of the Criminal Code; and
(2) that L was not a person permitted, authorized or required by law to make
the said declaration within the meaning of s. 114 of the Criminal Code, and
that there existed no authorization at law for the taking or receiving of these
solemn declarations.
Held: The application was dismissed.
Under s. 13 of The Securities Act, 1954, the Registrar
had by law authority to examine under oath. He also had the power to administer
the oath if not under that section then under s. 41 of The Saskatchewan
Evidence Act. Consequently, counts one to seven disclosed offences known to
the law and for which the accused was properly committed for trial.
The jurisdiction of this Court in a writ of habeas corpus was
limited to a consideration of the warrant of committal and other germane order,
and if they were regular on their face, that was the end of the matter. The
Court in such a writ has no more power to look at the solemn declarations
alleged to have been made than it has to look at the evidence given on a
preliminary hearing. No distinction can be drawn between a warrant of committal
before and one after conviction.
APPLICATION before Judson J. in chambers for a writ of habeas
corpus. Application dismissed.
A. W. Embury, Q.C., and P. H. Gordon, Q.C.,
for the petitioner.
N. L. Mathews, Q.C., and J. P.
Nelligan, contra.
[Page 39]
The following judgment was delivered
Judson J.
(orally):—This is an application for habeas corpus. Before I can deal
intelligibly with the issues raised on the application, I think I should set
out in chronological order the steps that have been taken in this prosecution
before the application was launched.
The accused came before the magistrate on a summons
containing eleven charges on which the magistrate conducted a preliminary
hearing lasting seven days. He committed the accused for trial on all charges
except number nine, in which he made an amendment to reduce it to
"counselling, procuring or inciting the commission of an offence"
which was not committed, under s. 407(a) of the Criminal Code.
I should say at this point that the magistrate on that date,
that is, the 30th November 1960, signed no warrant of committal. He admitted
the accused to bail immediately on his own recognizance.
On January 23, 1961, an indictment containing eleven counts
was preferred against the accused in the Court of Queen's Bench presided over
by Mr. Justice Disbery. Without analyzing the counts in the indictment in
detail, it is accurate, I think, to say that they are substantially in the same
form as the charges contained in the summons before the magistrate, as amended.
I can make this rough classification at this point, that the
first seven counts in the indictment have to do with counselling seven named
individuals to commit perjury before the Registrar under The Securities Act of
Saskatchewan and an allegation that that offence of perjury was afterwards
committed. The charge, therefore, on the first seven counts was that of
perjury.
Count number eight charged an attempt to obstruct and defeat
the course of justice by attempting to induce the seven named individuals in
the first seven counts to give false evidence in a judicial proceeding, namely,
an examination before the Registrar under The Securities Act.
Counts nine, ten and eleven have to do with procuring or
inciting two named individuals to make a solemn declaration.
I will deal with all these counts in more detail later.
[Page 40]
Counsel for the accused moved to quash all counts in the
indictment. The application was dismissed by the trial judge, with the
exception of count number eight on which the accused had elected a non-jury
trial and on which the Crown had no right of election before a judge and jury.
Count number eight, therefore, requires no further consideration here.
The remaining counts were then severed and the accused was
arraigned on counts nine, ten and eleven. He pleaded not guilty.
At the conclusion of the evidence there was a motion for a
directed verdict, which was rejected by the trial judge. The jury found the
accused not guilty on count eleven and disagreed on counts nine and ten.
The trial judge then adjourned the trial on counts nine and
ten and the remaining seven counts, counts one to seven, to the next sittings
of the Court to be held in May 1961; and continued the bail.
The next step was a motion by the accused before the
Saskatchewan Court of Appeal for a Writ of Certiorari to quash the committal
for trial on counts one to seven and counts nine and ten and to quash the
indictments corresponding to those counts. Judgment was given dismissing this
application on August 16, 1961, and on September 15, 1961, the accused launched
this application for habeas corpus.
On September 15, 1961, the accused was still at liberty on
bail, but on Monday, September 18, he appeared before Judge Hogarth and,
according to the order made by Judge Hogarth on that day, surrendered himself
into the custody of the judge for the purpose of satisfying the conditions of
the recognizance; and applied to be relieved of his obligations under the terms
of the recognizance and no longer acknowledged himself to be bound by its
terms.
The order recites that the accused was so relieved of his
obligations and then commands W. H. Williams, Sheriff of the Judicial Centre of
Regina, to take the accused into custody and convey him to
Regina Gaol.
On the same day, an order was made by a Judge of this Court
directing the issue of a Writ of Habeas Corpus to W. H. Williams, the Sheriff,
and to the Keeper of the Regina
[Page 41]
Gaol, to have the body of the accused before the judge
making the order on September 25, 1961. At that time the accused was admitted
to bail. The writ was served but no formal return to the writ has been made.
I have before me, first of all, the recognizance entered into
by the accused on November 30, 1960; a copy of the order of Judge Hogarth; and
a certified copy of a warrant of committal dated November 30, 1960.I have
already mentioned that this warrant was not signed on that day because the
accused was immediately admitted to bail.
There is evidence before me that this warrant was not signed
until September 21, or possibly September 22. In any event, I am not in any
doubt how the accused came to be in custody and I assume that if any formal
return had been made it would recite the facts that I have recited.
The application for habeas corpus is made on two grounds—the
first ground having reference to the first seven counts and the second ground
having reference to counts nine and ten. The first seven counts have been
referred to throughout these proceedings as the "registrar charges"
and counts nine and then have been referred to as "Leier charges".
I will set out now count number one, the first of the
registrar charges. The others are in exactly the same terms but with a
different name. I am quoting not from the indictment but from the summons.
The first charge is that the accused, during the month of
January 1958, at the City of Regina, did counsel another
person, to wit, one Edward Joseph Leier to commit the
offence of perjury, which offence was afterwards committed by the said Edward
Joseph Leier at the examination before the Registrar of
the Saskatchewan Securities Commission held pursuant to s. 13 of The
Securities Act, 1954, on the 23rd day of January, A.D. 1958, by swearing
falsely to the following effect:
(a) that he did not make
certain representations to prospective purchasers of shares in Columbia Metals
Exploration Co. Ltd., including statements regarding the listing of the shares,
the resultant increase in the price of the shares, the financial position of
the said Company, and its association with other companies, including the Ford
Motor Company, and
[Page 42]
(b) that the information
contained in the said representations was not given to him by Walter Luboff,
and
(c) that he could not
remember certain facts which he did actually remember,
while knowing the same to be false and with intent to
mislead the said Registrar contrary to the Criminal Code, and did
thereby become a party to the said perjury by virtue of 22(1) of the Criminal
Code.
When the Registrar charges became the first seven counts in
the indictment the application to quash was based on the same argument that has
been addressed to me on this motion for habeas corpus. Its outlines are set out
in the Notice of the application.
The argument is that there is no offence at law shown in
these counts, because the examination before the Registrar of the Saskatchewan
Securities Commission which he is said to have held under s. 13 of The
Securities Act, 1954, is not a judicial proceeding within s. 112 of the Criminal
Code. Section 112 of the Criminal Code reads:
Every one commits perjury who, being a witness in a judicial
proceeding, with intent to mislead gives false evidence, knowing that the
evidence is false.
"Judicial proceeding" is defined in s. 99 of the
Code. I think the only subsection that I am concerned with is para. (iv) of
subs. (c), which reads:
(c) "judicial
proceeding" means a proceeding
* * *
(iv) before an arbitrator or
umpire, or a person or body of persons authorized by law to make an inquiry and
take evidence therein under oath,
* * *
I next set out s. 13 of The Saskatchewan Securities Act, which
reads:
13. The registrar may and shall when so directed by the
commission require any further information or material to be submitted by any
applicant or any registered person or company within a specified time and may
require verification by affidavit or otherwise of any information or material
then or previously submitted or may require the applicant or the registered
person or any partner, officer, director or employee of the registered person
or company to submit to examination under oath.
[Page 43]
Counsel for the applicant submits that this section does not
authorize the registrar to make an inquiry or examination. His argument is that
if it did so authorize the registrar the concluding words of the section would
be, not "to submit to examination under oath" but "to submit to
examination under oath before him".
That is reducing the argument to its simplest elements. The
answer that is made by the Crown to it is that the plain meaning of the section
is that the registrar has this power to require the named person, in this case,
to submit to examination under oath and that the section cannot mean anything
else but submit to examination under oath before him.
Two other parts of the Act are referred to in support of
that argument. The first is s. 2(5) (f), which defines
"fraud", in part, as
the making of a material false statement in any application,
information, material or evidence submitted or given to the commission or the
registrar under the provisions of this Act or the regulations, or in any prospectus
or return filed with the commission;
The subsection that I have just read, it is argued,
contemplates the giving of information, material or evidence to the registrar.
Section 65(1) (c) is also relevant. It provides:
65. (1) Every person, including any officer, director,
official or employee of a company, who is knowingly responsible for
* * *
(c) the making of any
material false statement in any application, information, statement, material
or evidence submitted or given under this Act or the regulations to the
commission, its representative, the registrar or any person appointed to make
an investigation or audit under this Act;
I have no doubt, after listening to the two arguments
and the reading of the sections that I have already mentioned, that the
registrar has the power under s. 13 to take evidence and to take evidence under
oath.
That was Mr. Justice Disbery's opinion when he dismissed the
motion to quash, and it is also my opinion.
I think it is the plain meaning of s. 13 that the registrar
may require this particular person to give this information under oath, to
submit to examination under oath and before the registrar. To what other
possible place or person could he send the man for examination?
[Page 44]
If the person to conduct the examination is the registrar, I
think it is implicit in the terms of the section too that the registrar can
administer the oath. In any event, there is s. 41 of The Saskatchewan
Evidence Act which I had better set out in full:
41. Every court, judge, police magistrate, justice of the
peace, arbitrator or other person now or hereafter having by law or by consent
of parties authority to hear, receive and examine evidence may administer an
oath to any witness who is legally called before such court, judge, police
magistrate, justice of the peace, arbitrator or other person respectively.
In my opinion the registrar, under s. 13, has by law
authority to examine under oath. I think he has, by s. 13, also the power to
administer the oath, but if he has not got that power by s. 13 of The
Securities Act, I think he has it by s. 41 of the Evidence Act.
I am therefore holding that counts one to seven do disclose
offences known to the law and that the accused was properly committed for trial
on those charges and that to that extent the motion to quash the committal on
those charges fails.
I turn now to counts nine and ten, referred to as the Leier charges. I set out count nine in full:
9. And further, that you during the month of August A.D.
1958 at the said City of Regina unlawfully did counsel or
procure one Edward Joseph Leier who, not being a witness
in a judicial proceeding but being permitted or authorized by law to make a
statement by solemn declaration, to make in such statement before a person who
is authorized by law to permit it to be made before her, assertions with
respect to matters of fact, opinion, belief or knowledge knowing the said
assertions to be false, and thereby to be a party to an offence against the
Criminal Code section 114, which offence was afterwards committed by the said
Edward Joseph Leier by solemn declaration declared at the
said City of Regina on the 14th day of August A.D. 1958,
and you did thereby become a party to the said offence against section 114 of
the Criminal Code by virtue of section 22(1) of the Criminal Code.
Count number ten is in the same terms, with this exception,
that the solemn declaration referred to was simply dated "in the month of
August 1958". Section 114 of the Criminal Code reads:
114. Every one who, not being a witness in a judicial
proceeding but being permitted, authorized or required by law to make a
statement by affidavit, by solemn declaration or orally under oath, makes in
such a statement, before a person who is authorized by law to permit it to be
made before him, an assertion with respect to a matter of fact, opinion, belief
or knowledge, knowing that the assertion is false, is guilty of an indictable
offence and is liable to imprisonment for fourteen years.
[Page 45]
The attack on these two counts is made on these
grounds— that Leier was not a person permitted, authorized
or required by law to make the solemn declarations referred to in counts nine
and ten and that there exists no authorization at law for the taking or
receiving of these solemn declarations.
The argument is that the phrase "permitted, authorized
or required by law" to make a statement, means permitted, authorized or
required by some substantive law; that the Crown must point to some statute
which permits, authorizes or requires Leier to make these
solemn declarations, and that there is no such statutory authorization.
The Crown's submission in answer to that is that Leier is permitted by s. 37 of the Canada Evidence Act to
make this declaration if Part I of the Canada Evidence Act is applicable
and, if it is not so applicable, he is permitted under provincial law to make
the declaration; and that the purpose of the declaration may very well
determine which law is applicable and the determination of the purpose is a
matter of evidence for the jury.
All that I have before me is the declaration itself. The
declaration does refer to a statement of claim in an action brought by a
plaintiff, whose name I cannot read, against Columbia Metals Exploration Co.
Ltd., Western Bond and Share Corporation Limited, William Luboff, John J.
Abbott, Edward Leier and Laurence Tetrault.
This brings me to the question of what use may be made of
this material on a motion for habeas corpus before a judge of this Court.
The Crown's submission is that I am limited to looking at
the warrant of committal and that I cannot look at these declarations and the
statement of claim any more than I can look at the evidence—seven or eight
volumes of it— given on the preliminary hearing.
The basis for that submission is to be found in a number of
cases decided in this Court going back to In re Trepanier. This
and the other cases to which I propose to refer in a moment have to do with
motions for habeas corpus after a conviction. The present application is
brought in a case
[Page 46]
where there has been no conviction but only a committal for
trial and a bill of indictment preferred. It is suggested that that makes a
difference and I will deal with that later.
In Re Trepanier an application was made to a judge of this Court on behalf of a
person arrested on a warrant issued on a conviction, for a writ of habeas
corpus with certiorari in aid. The application was dismissed. Chief Justice
Ritchie said, at p. 113:
The jurisdiction of the magistrate being unquestionable over
the subject-matter of complaint and the person of the prisoner, and there being
no ground for alleging that the magistrate acted irregularly or beyond his
jurisdiction, and the conviction and warrant being admitted to be regular, the
only objection being that the magistrate erred on the facts and that the
evidence did not justify the conclusion as to the guilt of the prisoner arrived
at by the magistrate, I have not the slightest hesitation in saying that we
cannot go behind the conviction and inquire into the merits of the case by the
use of the writ of habeas corpus.
It was also pointed out that there is no jurisdiction
in this Court to issue a writ of certiorari in aid of habeas corpus. The
certiorari provisions in the Supreme Court Act have to do with appellate
jurisdiction and not with jurisdiction in matters of habeas corpus which is
concurrent with that of jurisdiction of the judges of the Superior Courts of
the provinces.
The next case I refer to is Ex parte Macdonald. That was also an
application for habeas corpus after there had been a conviction. At p. 687, the
judgment reads:
I believe therefore that the jurisdiction of a judge of the
Supreme Court in matters of habeas corpus in any criminal case, is limited to
an inquiry into the cause of commitment, that is, as disclosed by the warrant
of commitment, under any Act of the Parliament of Canada.
Finally on that point, in the case of In re Goldhar, the principle to be found
in the previous cases reported in the court is reaffirmed in the plainest
terms. For example, Chief Justice Kerwin, at p. 435, says:
The Calendar is a certificate regular on its face that the
appellant was convicted by a court of competent criminal jurisdiction and
therefore it is impossible to go behind it on an application for habeas corpus;
Re Trepanier (1885) 12 S.C.R. 111; Re
Sproule (1886) 12 S.C.R. 140; In re Henderson (1930) S.C.R. 45, 1
D.L.R. 420. 52 C.C.C. 95.
[Page 47]
And to the same effect in the judgment of Mr. Justice
Fauteux, at p. 439:
The question, which counsel for the appellant admittedly
sought to be determined by way of habeas corpus proceedings, is stated in the
reasons for judgment of other members of the Court. In my view, it is one which
would require the consideration of the evidence at trial and which, in this
particular case, extends beyond the scope of matters to be inquired under a
similar process. To hold otherwise would be tantamount to convert the writ of
habeas corpus into a writ of error or an appeal and to confer, upon every one
having authority to issue the writ of habeas corpus, an appellate jurisdiction
over the orders and judgments of even the highest Courts. It is well settled
that the functions of such a writ do not extend beyond an inquiry into the
jurisdiction of the Court by which process the subject is held in custody and
into the validity of the process upon its face.
In my opinion the jurisdiction of this Court is
similarly limited in an inquiry into a committal for trial. In the absence of
power to issue a writ of certiorari in aid of habeas corpus, a judge of this
Court has no power to look at the evidence at the preliminary hearing or to
receive affidavit evidence relating to it.
My jurisdiction is limited to a consideration of the warrant
of committal and the other material that I have referred to—the recognizances
and the order of Judge Hogarth. I cannot look at evidence, whether a transcript
of the evidence at the preliminary hearing or evidence sought to be introduced
by way of affidavit identifying a portion of such evidence.
I am founding my reasons on this branch of the case entirely
on that principle and I am expressing no opinion on the point on which I heard
full argument—whether there does exist, by virtue of provincial legislation,
permission to take a declaration of this kind.
It was suggested that that power is to be found in 1835
legislation enacted in the United Kingdom and that that legislation is still in
force in some way in the Province of Saskatchewan. The applicant, on the other
hand, says that that legislation cannot have been in force after the year 1907
when The Saskatchewan Evidence Act was enacted. If that is so, any
statutory declaration made in Saskatchewan before the 1959 amendment to the Evidence
Act is invalid unless it comes within Part I of the Canada
Evidence Act. I am expressing no opinion on that point, but founding my
judgment on the lack of jurisdiction in this Court to do more
[Page 48]
than examine the warrant of committal, and to find that, if
it is regular on its face, that is the end of the matter. I am drawing no
distinction between a warrant of committal after conviction. I see no
distinction in principle between the two.
The application will therefore be dismissed.
The judgment will issue on the 10th October, 1961, to afford
the applicant an opportunity to apply to the full Court on that date for bail
and, in the meantime, I continue the bail.
Application dismissed.