Attorney General (Quebec) v. Cohen, [1979] 2 SCR 305

Supreme Court of Canada

Attorney General (Quebec) v. Cohen, [1979] 2 S.C.R. 305

Date: 1979-06-14

The Attorney General of the Province of Quebec (Respondent in Superior Court) Appellant;

and

Ronald Cohen (Applicant in Superior Court) Respondent;

and

Rhéal Brunet and Denis Forget Mis en cause.

1979: March 12; 1979: June 14.

Present: Martland, Ritchie, Pigeon, Beetz, Estey, Pratte and McIntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Preliminary inquiry—Cross-examination on pre-inquiry denied by magistrate—Certiorari denied.

At a preliminary inquiry a magistrate allowed an objection by counsel for the Crown to cross-examination of a prosecution witness by counsel for the accused on the witness’ deposition at a pre-inquiry. The Superior Court issued certiorari to quash the magistrate’s decision. The Court of Appeal affirmed the judgment of the Superior Court, and appellant appealed to this Court.

Held: The appeal should be allowed.

Certiorari lies against a magistrate holding a preliminary inquiry only for lack of jurisdiction and a decision concerning the admissibility of evidence, even if erroneous, does not affect jurisdiction. In the instant case, nothing shows that the questions disallowed were on a vital point and that the decision to disallow them was apt to influence the outcome. Certiorari is a discretionary remedy. In the exercise of this discretion with reference to proceedings at a preliminary inquiry, it is essential to bear in mind that, in the interest of the effective administration of criminal justice, it is of paramount importance to avoid unnecessary delays, especially delays in bringing the case to trial.

Patterson v. The Queen, [1970] S.C.R. 409, followed; R. v. Norgren (1975), 27 C.C.C. (2d) 488, referred to; R. v. Mahony, [1910] 2 I.R. 695, distinguished.

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APPEAL from a decision of the Court of Appeal of Quebec[1] affirming a judgment of the Superior Court[2] which granted certiorari to quash the decision of a magistrate. Appeal allowed.

Yves Berthiaume, for the appellant.

Jeff Boro, for the respondent.

The judgment of the Court was delivered by

PIGEON J.—This is an appeal by leave of this Court from the judgment of the Quebec Court of Appeal, (1976), 32 C.C.C. (2d) 446, affirming the judgment of Malouf J., (1975), 29 C.C.C. (2d) 158, granting certiorari to quash a decision of a magistrate sustaining an objection of counsel for the Crown at a preliminary inquiry. This inquiry was being held on two counts of having illegally and wilfully attempted to obstruct, pervert or defeat the course of justice contrary to s. 127(2) of the Criminal Code, and two counts of having illegally counselled or incited another person to commit an offence contrary to s. 422(a) of the Criminal Code. Prior to the issue of a warrant, another magistrate before whom the information had been laid had made ex parte and in camera a pre-inquiry on oath in accordance with s. 455.3(1)(a). Counsel for the accused had obtained from that magistrate a copy of the depositions so taken and when cross-examining at the preliminary inquiry a witness called by the Crown from whom a deposition had been taken at the pre-inquiry, he sought to put questions related to such deposition. Counsel for the Crown objected, and after argument and consideration of s. 10 of the Canada Evidence Act, the magistrate sustained the objection. This decision is the order quashed by certiorari.

The first question which arises in this case is whether certiorari lies to quash a decision on objections in the course of a preliminary inquiry. It was conceded at the hearing that this is completely unprecedented as far as reported cases go. No such case was referred to by any of the judges below. In

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the Court of Appeal Kaufman J.A. said (at p. 456):

That certiorari will lie, at least in this Province, to review and quash, if necessary, a committal for trial, cannot be denied: Chromium Mining & Smelting Corp. Ltd. v. Fortin et al., [1968] Que. Q.B. 536. Why then, once we accept the principle that a review can be had at that stage, should we not push the matter one step further and, in appropriate cases, permit an examination of the proceedings even before they are terminated? Why, for instance, should we refuse a review in cases such as this, where even now it is apparent that the Magistrate has erred, not in the exercise of his discretion, but on a fundamental right conferred by the Code? Why waste time and effort and money to carry on with a preliminary hearing which, if it results in committal, would have to be quashed? Why not correct the error now?

With respect, I would point out that the judgment in the Chromium Mining case was given prior to the judgment of this Court in Patterson v. The Queen3. The facts of that case are thus stated by Judson J. who spoke for five of the seven sitting judges (at p. 411):

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.

The accused was committed for trial. On a motion by way of certiorari it was ordered by the Supreme Court of Alberta that the preliminary inquiry and the committal be quashed. On appeal,

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the Appellate Division restored the committal. The judgment of the Appellate Division was affirmed in this Court and the essential part of the reasons stated by Judson J., the ratio decidendi of the case, is in these two paragraphs (at pp. 411-13):

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 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.

…

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 cannot accept that what was said in Patterson by the two judges who disagreed with Judson J. on what he said in the last quoted paragraph, although one of them agreed on the conclusion, in any way detracts from the authority of this statement of principle approved by a majority of this Court. I must also note that most of the cases relied on in the courts below deal with convictions not committals. At common law certiorari lies against conviction not only for want of jurisdiction but also for error of law apparent on the face of the record. In the old days the great difficulty was that the record did not include depositions and therefore most errors of law were not apparent, this was the reason why certiorari was not allowed in the King v. Mahony[3] from which Kaufman J.A. quoted at some length. Thus the views so expressed were all obiter and all in relation to a summary conviction not a preliminary inquiry and as to the importance of the distinction, I will quote the following passages from the reasons for judgment

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given by McIntyre J.A. (as he then was) in R. v. Norgren[4], at pp. 489-90:

The learned Provincial Court Judge had jurisdiction to embark upon the preliminary hearing. Central to the exercise of that jurisdiction was the responsibility to determine the admissibility of evidence tendered by the parties. The confession referred to was the sole evidence against the respondent. It is now said, as it was said below, that the Judge applied the wrong test in considering the admissibility of this evidence and that certiorari should lie.

As I have said, the Judge below acceded to that argument and ordered the writ.

If error was made in the admission of this evidence, and for the purpose of this argument and for the purpose of this judgment I am prepared to assume that error was made in the admission of the evidence, such an error was at most an error in the exercise of the jurisdiction properly possessed by the Provincial Court Judge, and it does not go to or affect his jurisdiction. By making such an error he did not lose his jurisdiction or exceed it—and certiorari will not lie to review his decision.

I must observe how much stronger was the case for Patterson than for Cohen. He had been denied production of statements made by witnesses prior to the hearing, thus he had been denied information which it may be presumed he had a substantial interest to obtain before the trial. However, it was held that certiorari did not lie even on the assumption that the refusal to order the production of the statements was erroneous. In the instant case, the accused was denied no information, his counsel had a copy of the deposition given at the pre-inquiry. It is not shown that the questions disallowed really went to anything else than the credibility of the witness. But a preliminary inquiry is not a trial and is not to be turned into a trial because it happens that a pre-inquiry has been held prior to the issue of the warrant. As it is, nothing shows that the questions disallowed were on a vital point and that the decision to disallow them was apt to influence the outcome. In fact, the judgments below would appear to stand for the

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proposition that any questionable decision by a magistrate on the admission of evidence during a preliminary inquiry is open to challenge by certiorari without waiting to see whether there will be a committal or of what importance it will be in the end result.

In dealing with certiorari one must never forget that it is a discretionary remedy. In the exercise of this discretion with reference to proceedings at a preliminary inquiry, it is essential to bear in mind that, in the interest of the effective administration of criminal justice, it is of paramount importance to avoid unnecessary delays, especially delays in bringing the case to trial. If certiorari is issued at the stage of preliminary inquiry, there is a possibility of an appeal and how long this may delay the trial is obvious: the application for certiorari in the present case is dated February 10, 1975.

In my view there are cogent reasons for not departing from the rule that against a magistrate holding a preliminary inquiry certiorari lies only for lack of jurisdiction and a decision concerning the admissibility of evidence, even if erroneous, does not affect jurisdiction. In view of this conclusion, I do not consider it expedient to express any opinion as to the merits of the objection sustained by the magistrate.

I would allow the appeal, reverse the judgment of the Court of Appeal and quash the writ of certiorari issued by the Superior Court.

Appeal allowed.

Solicitor for the appellant: Yves Berthiaume, Montreal.

Solicitors for the respondent: Shadley, Melançon & Boro, Montreal.