Martin et al. v. R., [1978] 2 SCR 511

Supreme Court of Canada

Martin et al. v. R., [1978] 2 S.C.R. 511

Date: 1978-01-26

Hugh A. Martin, Jean Simard and Bruno Desjardins (Plaintiffs) Appellants;

and

Her Majesty The Queen (Defendant) Respondent.

1978: January 26.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Committal for trial—Application for habeas corpus with certiorari in aid to review the sufficiency of evidence—Issue already determined adversely to accused on previous certiorari appeal from which leave to appeal refused—Criminal Code, s. 475, 719(3).

APPEALS from a judgment of the Court of Appeal for Ontario dismissing an appeal from a judgment of Morden J.[1] dismissing the applications for habeas corpus with certiorari in aid. Appeals dismissed.

Douglas K. Laidlaw, Q.C., and Roy E. Stephenson, for the appellant Martin.

H. Lorne Morphy, Q.C., Charles F. Scott and Marilyn L. Pilkington, for the appellants Simard and Desjardins.

R.M. McLeod and S.C. Hill, for the respondent.

The judgment of the Court was delivered orally by

THE CHIEF JUSTICE—We do not need to hear you, Mr. McLeod and Mr. Hill. We are all of the opinion that the appeals fail for the reasons which follow.

The appellants claim the right to habeas corpus in order to have a judge of the Supreme Court of Ontario pass on the sufficiency of the evidence to support the committal of the accused for trial. The claim is made under the pre-Confederation Habeas Corpus Act, in force in Ontario, under which on habeas corpus with certiorari in aid, the

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Court is entitled to review the sufficiency of the evidence upon which an accused has been confined or restrained. It is conceded that without certiorari in aid, a review of the evidence would not be open.

In the present case, Morden J. refused to grant habeas corpus with certiorari in aid for reasons that need not be canvassed here, but he went on to consider the challenge of the accused to their committal for trial under a separate and concurrent application for certiorari. It was his view that he was not precluded by any judgments binding on him, such as R. v. Pickett[2], from extending review by certiorari beyond jurisdictional error and from examining the proceedings, including the evidence, to determine whether there was any error of law on the face of the record. He considered that the question whether there was any evidence to warrant the committals for trial was included among the errors of law examinable on certiorari alone. Indeed, he was invited by all counsel to consider on the merits what he called the substantive issue of no evidence, which was the basis of the applications by the accused to quash their committals for trial.

Morden J. concluded on the certiorari application that there was no evidence to warrant committal of the accused Martin on count 4, the only count on which he stood committed for trial, no evidence to support the committal of the accused Simard on count 3, being one of three counts on which he stood committed, and no evidence to support the committal of the accused Desjardins on counts 3 and 4, leaving only count 6 outstanding against him and, accordingly, he quashed the committals on those counts. The Court of Appeal rejected the accused’s appeal against the refusal of habeas corpus with certiorari in aid, but went on to allow the Crown’s appeal on the certiorari application and reinstated the committals on all counts on which the committals had been quashed by Morden J. In the course of its reasons, it made the following relevant pronouncements:

…It remained therefore to examine the excerpts of evidence, as placed before this Court from the lengthy transcript taken at the preliminary hearing, in order to determine whether there was any evidence at all on

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which the committing tribunal was able to base its opinion to commit, as required by the terms of the Code already cited. There is, of course, a considerable volume of evidence, testimonial and documentary, and it is my view that in the case of each of the three respondents there is sufficient evidence relating to the charges and the counts in issue to call upon the learned Provincial judge to form an opinion as to whether there was sufficient evidence to commit the accused for trial, pursuant to s. 475, set out above. Having properly directed his mind to the evidence and to the question of whether there was “sufficient evidence” to commit, his decision is not subject to review.

The accused applied here for leave to appeal from the judgment of the Court of Appeal but leave was refused, and so the judgment of the Court of Appeal stands against them as a judgment in which that Court had determined that there was sufficient evidence upon which the committing Judge was in a position to form an opinion on whether there was enough to send the accused to trial.

Counsel for the appellants allege that the determination by the Court of Appeal does not foreclose their right to habeas corpus because, if granted, it will give them a right to a wider review than that afforded to them under certiorari alone. What they point to, of course, is the scope of review by habeas corpus with certiorari in aid. Assuming for the purpose of this case, that their right of appeal to this Court under Criminal Code s. 719(3), which refers only to habeas corpus ad subjiciendum, embraces habeas corpus with certiorari in aid, it does not follow that their position will be any different than that considered and already adjudicated upon by the Court of Appeal on the certiorari appeal alone.

There are a number of reasons which point to this conclusion. It should be said, first, that the argument of the appellants as to habeas corpus with certiorari in aid makes it unnecessary for this Court to review its decisions in Patterson v. The Queen[3], or in Masella v. Langlais[4]. On their own assertion, the appellants have a statutory right to a

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review on the sufficiency of the evidence, and neither of the aforementioned cases touches this point. The first was concerned with the scope of review where there was no such statutory direction on the matter as exists here, and the second was concerned, inter alia, with the question whether habeas corpus lies where the applicant is on bail. Second, the question of sufficiency cannot be considered at large, but only in relation to the statutory authority of the committing provincial Judge, as spelled out in Criminal Code, s. 475. That provision, so far as relevant, provides that “When all the evidence has been taken by the justice he shall if, in his opinion, the evidence is sufficient to put the accused on trial commit the accused for trial”. It cannot be that the pre-Confederation statute can enlarge the authority to review the determination of the committing justice, but the position is rather that it must be read in consonance with the later enacted provisions of the Criminal Code. Third, the review on sufficiency must be a review to determine whether the committal was made arbitrarily or, at the most, whether there was some evidence upon which an opinion could be formed that an accused should go to trial.

Counsel for the accused Martin, supported by counsel for the accused Simard and Desjardins, argued strenuously that the Court of Appeal had applied a narrower test in their reversal of Morden J. on the certiorari application than the test applicable to review by habeas corpus with certiorari in aid; and that, if otherwise entitled to habeas corpus, they were not precluded from having the committals for trial reviewed merely because of the Court of Appeal’s ruling adverse to them on certiorari. Since Morden J. had addressed himself to the issue of no evidence or some evidence, (and it was conceded that he gave full review) and this same issue was considered by the Court of Appeal, with an assertion by the Court that it had reviewed the evidence as to its sufficiency for the purpose of seeing whether it provided the platform for the committing Judge’s exercise of his powers under Criminal Code, s. 475, there is difficulty in understanding what different review would be open on habeas corpus with certiorari in aid, once it is

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conceded (as counsel for the accused did) that the review contemplated under the Habeas Corpus Act is not a straight appeal. Whatever difficulty accused’s counsel see in reconciling certain statements of principle by the Court of Appeal, their dispositive reasons make clear enough the scope of review that they gave to the sufficiency of the evidence.

Having regard to the determination that they in fact made on the certiorari appeal, the present applications become moot. In short, even assuming that in the circumstances of this case, they would have been entitled to the grant of habeas corpus and to certiorari in aid, the issue that would have been open for review has already been determined adversely to the accused. They cannot claim to have the same merits reviewed under a different procedure when there has been review of the same scope under a procedure which they had previously invoked.

This is sufficient to dispose of these appeals without canvassing the other issues raised by the appellants on which we express no opinion, and the appeals are, accordingly, dismissed.

Appeals dismissed.

Solicitors for the appellant Martin: McCarthy & McCarthy, Toronto.

Solicitors for the appellant Simard: Tory, Tory, Deslauriers & Binnington, Toronto.

Solicitor for the appellant Desjardins: Maurice Hébert, Montreal.

Solicitors for the respondent: The Ministry of the Attorney General for Ontario, Toronto.