Petersen v. The Queen, [1982] 2 SCR 493

Supreme Court of Canada

Petersen v. The Queen, [1982] 2 S.C.R. 493

Date: 1982-09-28

Walter Petersen Appellant;

and

Her Majesty The Queen Respondent.

File No.: 16288.

1982: February 16; 1982: September 28.

Present: Laskin C.J. and Ritchie, Dickson, Estey, Mclntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Criminal law—Autrefois acquit—Identical informations—First informations dismissed by provincial court judge—Whether or not trial judge trying the indictment on the second informations erred in dismissing the plea of autrefois acquit—Criminal Code, R.S.C. 1970, c. C-34, ss. 2, 234(1), 235(2), 440.1, 535(4), 720, 721(2), 734, 735(1), 736(3), 738(1),(3),(4), 739—The Provincial Court Act, R.S.S. 1978 (Supp.), c. P-30.1, ss. 3, 4.

A provincial court judge dismissed two informations under Part XXIV of the Code on an erroneous finding that he had lost jurisdiction. The Crown without appealing the dismissal commenced proceedings by indictment in the identical terms of the informations. A plea of autrefois acquit was refused.

Held: The appeal should be allowed.

The provincial court judge, in deciding that he lacked jurisdiction, simply made an error in law in the disposition of the case which was properly before him and within his jurisdiction. The appellant was put in jeopardy, and the summary conviction court dismissed the informations thus giving the appellant a determination of the issue that could be raised in bar of any later proceedings on the same charge. The judge’s order, even if made in error, must stand until rescinded, quashed or reversed on appeal. It was in force and effect when the plea of autrefois acquit was raised and should have received effect. The Crown could have appealed or have sought relief by prerogative proceedings, but it could not simply conclude that the summary conviction court’s order was ex facie a nullity and ignore it by commencing new proceedings.

[Page 494]

R. v. Riddle, [1980] 1 S.C.R. 380, discussed; R. v. Elrington (1861), 1 B. & S. 688, 121 E.R. 870; R. v. Miles (1890), 24 Q.B. 423; R. v. Hilton (1895), 59 J.P. 778; Batchelor v. The Queen, [1978] 2 S.C.R. 988; Re Thompson and The Queen (1978), 38 C.C.C. (2d) 498; Haynes v. Davis, [1915] 1 K.B. 332; R. v. Hatherley (1971), 4 C.C.C. (2d) 242; R. v. Blair and Karashowsky (1975), 25 C.C.C. (2d) 47; R. v. Day (1980), 37 N.S.R. (2d) 193, referred to.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1980), 4 Sask. R. 357, allowing the Crown’s appeal from a judgment of MacLean D.C.J. acquitting the accused. Appeal allowed.

David C. Woods and Henry S. Brown, for the appellant.

Kenneth MacKay, for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—This appeal raises questions relating to the plea of autrefois acquit where the Crown has commenced proceedings by indictment after the dismissal of informations in identical terms by a provincial court judge under Part XXIV of the Criminal Code.

The appellant was charged with impaired driving, under s. 234(1) of the Criminal Code, and with a refusal to comply with a demand made by a police officer to furnish a sample of his breath, under s. 235(2) of the Code. The offences were alleged to have occurred on July 4, 1978 and were the subject of two separate informations sworn on July 31, 1978. The Crown elected to proceed by way of summary conviction on August 3, 1978 and the proceedings were adjourned until September 7, 1978. On that date the appellant appeared and entered pleas of not guilty to each charge and the proceedings were adjourned until October 27, 1978. On October 26, 1978 an adjournment was made setting the trial date at December 15, 1978 and a further adjournment was later made to January 11, 1979. On all of these occasions the accused was represented by counsel and the adjournments were made at his request.

[Page 495]

While it is difficult to decipher the endorsements on the reverse side of the informations, it appears that the adjournment of October 26, 1978 was made by consent, and that the information alleging impaired driving was adjourned by consent on December 15, 1978. On January 11, 1979, the provincial court judge dismissed both informations without hearing evidence on the basis that he lacked jurisdiction, it not having been shown that the appellant had consented to the various adjournments which had exceeded eight days. He was, presumably, considering s. 738(1) of the Criminal Code, which provides:

738. (1) The summary conviction court may, in its discretion, before or during the trial, adjourn the trial to a time and place to be appointed and stated in the presence of the parties or their counsels or agents, but no such adjournment shall be for more than eight clear days unless both parties or their counsel or agents consent to the proposed adjournment whether or not the defendant is in custody.

The judge issued certificates of dismissal covering each information, certifying that the informations had been dismissed for want of jurisdiction. It is not entirely clear when the certificates were issued. They are certified as true copies and are dated the 2nd and 3rd of March, 1981, long after the plea of autrefois acquit was raised. I have mentioned these certificates to complete the record, but little emphasis was given to them in argument and they form no significant part of the appellant’s case. 1 will not deal with them further, other than to say that they form part of the record and confirm, if confirmation is needed, that the reason given for the dismissals was a want of jurisdiction.

On January 15, 1979, some four days after the dismissals, two new informations were sworn in identical terms, relying on the same circumstances as the earlier ones. The Crown elected to proceed on the new informations by indictment because the limitation period of six months, provided for in s. 721(2) of the Criminal Code, had elapsed. Separate preliminary hearings were held in respect of each information, but on committal for trial following the preliminary hearings the two charges were included in one indictment. On November 15, 1979, prior to trial, the appellant appeared

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before MacLean D.C.J. and made a plea of autrefois acquit to each charge in the indictment. The judge rejected the plea and on December 13, 1979 directed the appellant to enter pleas to the charges in accordance with the provisions of s. 535(4) of the Criminal Code. The indictment was tried before MacLean D.C.J. and judgment given on March 24, 1980. The appellant was acquitted on the refusal count, under s. 235(2) of the Code, and the Crown entered a stay on the impaired driving count.

The Crown’s appeal against the acquittal on the refusal to supply a breath sample charge was allowed, a conviction entered, and the matter referred back to the trial judge for sentence. Beyond saying that “the learned trial judge found all of the essential facts necessary to found a conviction”, Culliton C.J.S., who wrote the judgment of the Saskatchewan Court of Appeal, made no mention of the disposal of the plea of autrefois acquit and it is not clear whether the matter was canvassed in that Court. The appeal in this Court turned largely on that argument and the result is that this appeal has become, in effect, an appeal against the pre-trial decision refusing the plea of autrefois acquit.

The appellant advanced four grounds of appeal in this Court. In my view, only the first ground requires any consideration. It asserts that the trial judge erred in failing to give effect to the plea of autrefois acquit and, presumably, that the Court of Appeal was in error in not correcting him. Counsel for the appellant argued that the provincial court judge who dismissed the two original informations was in error when he held that he was without jurisdiction. He had jurisdiction to proceed to trial and his decision to the contrary amounted to an error in law. It led, nonetheless, to a disposition of the case, a dismissal of each information, and while that decision might have

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been reviewable on appeal, or subject to attack by prerogative writ, it constituted a trial on the merits and it would stand until lawfully set aside.

The Crown argued that the provincial court judge, acting under Part XXIV of the Criminal Code, had jurisdiction to dismiss an information only under ss. 734, 735(1), 736(3), 738(3) and (4), and s. 739. Only under those sections, none of which was invoked here, could the court grant an order of dismissal under s. 743(1), that is, one which would be effective to bar subsequent proceedings. His action then was ineffective to dismiss the informations and permit the issue of certificates of dismissal, or to support a plea of autrefois acquit.

MacLean D.C.J. seems to have refused the plea of autrefois acquit on the basis that the judgment of the provincial court judge, dismissing the informations, was not an adjudication or judgment resulting in an acquittal. He seems to have accepted the provincial court judge’s finding of an absence of jurisdiction when he said:

To paraphrase Latchford, C.J. was the dismissal by Judge King an adjudication or judgment resulting in an acquittal? I think not. In my view, Judge King in dismissing the information decided that he was without jurisdiction to hear the informations due to a procedural error in granting an adjournment of over eight days without the accused’s consent appearing on the record. In my opinion, a judge who is without jurisdiction cannot make an adjudication upon a case. If a judge cannot make an adjudication, the accused was not in jeopardy and if he was not in jeopardy, he cannot successfully plead autrefois acquit.

In my view, MacLean D.C.J. failed to address the real issue. He accepted the provincial court judge’s finding of an absence of jurisdiction and then seems to have concluded that any order he made was a nullity. Instead, he should have asked himself whether the provincial court judge had jurisdiction and, if he had, irrespective of the correctness of any finding made on that subject by the provincial court judge, whether the order of

[Page 498]

that court was effective to dismiss the informations.

The whole question in issue in this appeal was recently canvassed in this Court in R. v. Riddle, [1980] 1 S.C.R. 380. Dickson J., speaking for the Court, examined the authorities and concluded that the provisions of s. 743 of the Criminal Code, providing for the issue by the summary conviction court of a certificate of dismissal to a person acquitted of a summary conviction offence, do not deprive that person of the benefit of the special plea of autrefois acquit. It was open then to the appellant to raise this plea before the commencement of his trial on the indictment and it follows that had that plea been successful, the proceedings on the indictment would have been brought to an end.

While, in Riddle, the accused pleaded the fact of his acquittal on summary proceedings as a bar to subsequent proceedings of the same nature, the result would not have differed if the later proceedings had been, as in the case at bar, by way of indictment. Conviction or acquittal of an offence on summary proceedings will bar further proceedings on the same charge by indictment: see Spencer Bower on Res Judicata (1924), at pp. 35-36, where it was said:

49. In foregoing portions of this Chapter, incidental illustrations have been given of the conclusiveness of decisions of a court of summary jurisdiction in the exercise of auxiliary civil or quasi-civil authority conferred by statute or otherwise, and also of decisions as to wrongful acts of both a civil and a criminal complexion, such as assault, trespass, and defamation of certain kinds.

50. It is no less true that purely criminal decisions have the same effect, and cannot be called in question in any subsequent proceeding, whether criminal or civil, to which the King is a party, in respect of the same offence. Thus, the decision of a criminal court having jurisdiction to deal with indictable offences is conclusive in any court of the like jurisdiction, and, a fortiori, in any court of summary jurisdiction; whilst the decision of

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a court of summary jurisdiction is conclusive, not only in any similar court, but also in any court of superior criminal jurisdiction, that is, in any court having authority to deal with indictable offences.

In support of this proposition the author cited R. v. Elrington (1861), 1 B. & S. 688, 121 E.R. 870, where an acquittal before Justices of the Peace on a charge of assault was held to bar subsequent proceedings by indictment for an assault with aggravating circumstances, but concerning the same event. Other cases which have adopted this view include R. v. Miles (1890), 24 Q.B. 423, where a conviction for assault by a court of summary jurisdiction barred an indictment for the same assault. At page 433, Hawkins J. said:

After a summary conviction or dismissal of a charge upon which they have lawfully adjudicated, evidence may be discovered which would probably have induced them to come to an opposite conclusion. Yet, as in the case of an acquittal or conviction upon an indictment, their acquittal or conviction upon complaint within their jurisdiction is equally final, and their decisions upon matters within their jurisdiction cannot, as I have already shewn, be altered by presenting the same charge in the shape of an indictment before a jury in an aggravated form.

And see, as well, R. v. Hilton (1895), 59 J.P. 778.

Dickson J. dealt, as well, in Riddle with the nature of the plea of autrefois acquit and with the term “trial on the merits” as it applies to the plea and to the application of the bis vexari principle. I need not repeat in detail what he said, but I can summarize the effect of his words and the authorities on which they are based by saying that a plea of autrefois acquit is available and should succeed where an accused shows that he was placed in jeopardy on the same matter on an earlier occasion before a court of competent jurisdiction, and that

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there was a disposition in his favour resulting in an acquittal or dismissal of the charges. The question for decision in this case then is whether the proceedings before the provincial court had that effect. Was the court a court of competent jurisdiction? Was the appellant placed in jeopardy before that court, and did his trial commence and proceed to a final disposition of the charges by dismissal or acquittal?

The record does not make apparent how the judge reached the decision that he had no jurisdiction. He had assumed jurisdiction; heard the informations read; taken pleas of not guilty; ordered several adjournments; and fixed a date for trial before he reached his conclusion. It has not been suggested at any time that he lacked jurisdiction to hear the matters raised in the informations when they were presented. The provisions of ss. 720 and 2 of the Criminal Code, together with ss. 3 and 4 of The Provincial Court Act, R.S.S. 1978 (Supp.), c. P-30.1, clearly cover the point. Furthermore, any loss of jurisdiction which could have occurred prior to the enactment of s. 440.1 of the Criminal Code would now be prevented. The section is reproduced hereunder:

440.1 (1) The validity of any proceeding before a court, judge, magistrate or justice is not affected by any failure to comply with the provisions of this Act relating to adjournments or remands, and where such failure has occurred and an accused or a defendant does not appear at any such proceeding or upon any adjournment thereof, the court, judge, magistrate or justice may issue a summons or, if it or he considers it necessary in the public interest, a warrant for the arrest of the accused or defendant.

(2) Where, in the opinion of the court, judge, magistrate or justice, an accused or a defendant who appears at a proceeding has been misled or prejudiced by reason of any matter referred to in subsection (1), the court, judge, magistrate or justice may adjourn the proceeding and may make such order as it or he considers proper.

(3) The provisions of Part XIV apply mutatis mutandis where a summons or warrant is issued under subsection (1).

The effect of this section was noted by Laskin C.J.C. in Batchelor v. The Queen, [1978] 2 S.C.R. 988, at p. 991. I would add that I am in agreement with Tallis J. (as he then was) in Re Thompson

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and The Queen (1978), 38 C.C.C. (2d) 498, where he held that s. 440.1 of the Code applied both to summary proceedings and proceedings by indictment.

I am therefore of the opinion that the provincial court judge was seized with jurisdiction to hear the informations from the outset and he never lost it and was, therefore, a court of competent jurisdiction. It should be noted here, however, that the Crown did not appeal his order of dismissal, nor did it seek to attack it by means of a prerogative proceeding.

I am also of the opinion that the appellant was placed in jeopardy and that his trial commenced upon the informations. He had pleaded not guilty and he stood prepared to meet the Crown’s case. In Riddle, the Crown’s case was dismissed because the Crown, despite the refusal of an adjournment and the Court’s direction that the trial proceed, declined to call evidence. There was accordingly no case for the accused to meet and the acquittal resulted. In that case Dickson J. said, at p. 398:

In my view, a criminal trial commences and an accused is normally in jeopardy from the moment issue is joined before a judge having jurisdiction and the prosecution is called upon to present its case in court. The person accused continues in jeopardy until final determination of the matter by rendering of the verdict.

I do not consider that Dickson J. imposed by those words a requirement that some direct invitation must be issued to the Crown to call evidence before it could be said that the issue had been joined and the accused placed in jeopardy. The authorities he relied upon in his reasons support the proposition that once a plea is entered before a court of competent jurisdiction the accused is in jeopardy. Where that court proceeds to a determination, in the nature of an acquittal or dismissal, proceedings on new informations raising the same allegations will be barred: Haynes v. Davis, [1915] 1 K.B. 332; R. v. Hatherley (1971), 4 C.C.C. (2d) 242; R. v. Blair and Karashowsky (1975), 25 C.C.C. (2d) 47; R. v. Day (1980), 37 N.S.R. (2d) 193; and other authorities referred to in Riddle, supra.

[Page 502]

I am in agreement with Dickson J. when, referring to the question of “trial on the merits”, he said, at p. 399, in the Riddle case:

The term “on the merits” does nothing to further the test for the application of the bis vexari maxim. There is no basis, in the Code or in the common law, for any super-added requirement that there must be a trial “on the merits”. That phrase merely serves to emphasize the general requirement that the previous dismissal must have been made by a court of competent jurisdiction, whose proceedings were free from jurisdictional error and which rendered judgment on the charge.

In my view, when he concluded his comment, above quoted, with the words “whose proceedings were free from jurisdictional error”, he was not referring to such an error as was present here where the provincial court judge decided, in error, that he had no jurisdiction. The jurisdictional error contemplated in Dickson J.’s expression is one which leads the court to exceed its jurisdiction by exercising, or purporting to exercise, a jurisdiction it does not possess. The provincial court judge in the case at bar, in deciding he lacked jurisdiction, simply made an error in law in the disposition of the case which was properly before him and within his jurisdiction.

In the facts of this case I am of the view that the appellant was put in jeopardy, and the summary conviction court dismissed the informations thus giving the appellant such a determination of the issue that it could be raised in bar of any later proceedings on the same charge. The fact that the provincial court judge may have made an error in law in dismissing the informations does not alter the situation. He made an order. Assuming, as I do, that his order was wrong, it nonetheless disposed of the informations. Such an order, though voidable, must stand, however, until it is rescinded, quashed, or reversed on appeal. It was therefore in force and effect when the plea of autrefois acquit was raised and it should have received effect. This is not to say the Crown was left without remedy in the face of judicial error. The Crown could have appealed; it might have had the right to relief by prerogative proceedings, but it could not simply conclude that the summary conviction court’s order was ex facie a nullity and ignore it by

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commencing new proceedings. By this approach, the Crown has foregone its remedy and a plea of autrefois acquit should have succeeded. I would allow the appeal.

Appeal allowed.

Solicitor for the appellant: Clarence W. Vause, Swift Current.

Solicitor for the respondent: C. Richard Quinney, Regina.