Faber v. The Queen, [1976] 2 SCR 9

SUPREME COURT OF CANADA

Faber v. The Queen, [1976] 2 S.C.R. 9

Date: 1975-03-26

Claude Faber Appellant;

and

Her Majesty The Queen et al. Respondents; and

Attorney General and Minister of Justice of the Province of Quebec and another

Mis en cause.

1974: October 15 and 16; 1975: March 26.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH, PROVINCE OF QUEBEC

Criminal Law—Coroner's inquest—Committal for refusing to testify—Application for writ of prohibition refused—Civil proceeding—Court of Queen's Bench (Criminal Side) lacks jurisdiction—Criminal Code, 1953-54 (Can.), c. 51, ss. 2(10), 413(2)—Coroners Act, 1966-67 (Que.), c, 19, ss. 1, 7, 13 and 30.

Appellant had been called by the coroner as a witness. Having refused to testify, he was repeatedly committed for contempt of court. At the continuation of the inquest, appellant was again invited to testify and refused to do so. In the interval of adjournment, he submitted to the Court of Queen's Bench, Criminal Side, a motion praying that a writ of prohibition be issued against the coroner, arguing that the matter was dealt with by the Criminal Code and that the coroner had exhausted his jurisdiction with respect to contempt of court. This motion was dismissed for the reason that the matter in question was dealt with by the Code of Civil Procedure. This judgment was upheld by the Court of Appeal which concluded that, as the matter was of a civil nature, only the Superior Court had authority to hear a motion for prohibition against the coroner. Appellant was granted leave to appeal by this Court.

Held (Laskin C.J. and Spence, Pigeon and Beetz JJ. dissenting): The appeal should be dismissed.

Per Martland, Judson, Ritchie, Dickson and de Grandpré JJ.: The Coroners Act, which is not claimed to be unconstitutional, does not create a court in the ordinary sense. The coroner has not been a part of the structure of criminal justice since 1892. The link was completely severed at that time, and subsequent legisla­tive changes have only made this fact more apparent. The traditional role of the coroner, as it existed in

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England, disappeared, and was replaced by a function which was not primarily of a criminal nature, but came to have a social context. While the investigation of crime is important, it is no longer the determining aspect. The proceeding itself is not as such concerned with. the investigation of crime because the inquest is not a trial and there is no accused. It goes without saying that if the writ of prohibition is to be regarded as a "proceeding in criminal matters", the Superior Court alone has jurisdiction, and the finding of the Court of Appeal in the case at bar is not in error.

Per Laskin C.J. and Spence, Pigeon and Beetz JJ., dissenting: At the date of Confederation, by the common law and by statute proceedings at a coroner's inquest were Procedure in Criminal Matters which were subsequently properly dealt with as such by the Parlia­ment of Canada. It cannot be said to be otherwise when a "coroner's inquisition" was the equivalent of an indictment returned by a grand jury, It cannot be said that as a result of the changes subsequently made by Parlia­ment, a coroner no longer has any criminal jurisdiction. His duties under the Code cannot be considered of negligible importance.

Concerning the definition of "court of criminal jurisdiction" in s. 2(10) of the Criminal Code, it in no way implies that all courts not enumerated have no criminal jurisdiction. All it means is that such courts have no jurisdiction to try indictable offences.

[Minister of National Revenue v. Lafleur, [1964] S.C.R. 412; Batary v. Attorney General for Saskatche­wan et al., [1965] S.C.R. 465; R. v. McDonald, (1968) 2 D.L.R. (3rd) 298; R. v. Hammond, (1898) 1 C.C.C. 373; R. v. Lalonde et al., (1898) 7 Q.B. 204; Wolfe v. Robinson, (1961) 27 D.L.R. (2d) 98, referred to.]

APPEAL from a judgment of the Court of Queen's Bench[1], province of Qubec, affirming a judgment of the Court of Queen's Bench, Criminal Side, dismissing an application for a writ of prohi­bition against a coroner. Appeal dismissed, Laskin C.J., Spence, Pigeon and Beetz JJ., dissenting.

Raymond Daoust, Q.C., for the appellant.

J. Richard and G. Tremblay, for the respondents.

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The judgment of Laskin C.J. and Spence, Pigeon and Beetz JJ. was delivered by

PIGEON J. (dissenting)—This appeal is from a judgment of the Court of Appeal for the Province of Quebec affirming a judgment of the Court of Queen's Bench (Crown side) dismissing an application for a writ of prohibition against the coroner for the District of Montreal. One Pocetti who had joined with Faber on the application and on the appeals, died before the hearing in this Court.

The appelant had been called as a witness at the continuation of an inquest held by the coroner over a death which the coroner had earlier stated to be in his opinion due to a crime. The appellant had refused to testify after being repeatedly committed for contempt. The Court of Appeal held that the proceedings were not in a criminal matter and, therefore, the Court of Queen's Bench (Crown side) being a superior court of criminal jurisdiction exclusively, had no jurisdiction in the circum­stances. This is the only question arising for deci­sion on this appeal.

It appears desirable at first to review the history of coroner's inquests. When the criminal law of England was introduced in Quebec at the start of the British regime as confirmed by the Quebec Act, a coroner's inquisition, as it was called, could be treated as equivalent to an indictment when it was presented charging some person with murder or manslaughter. In Blackstone's Commentaries on the Laws of England (21st ed.), one reads (at p. 274):

The court of the coroner is also a court of record, to inquire, when any one dies in prison, or comes to a violent or sudden death, by what manner he came to his end. And this he is only entitled to do super visum corporis.

The finding of such inquest is equivalent to the find­ing of a grand jury; and, therefore, a woman tried on the coroner's inquest for the murder of her bastard child may be found guilty, under the statute, of endeavoring to conceal its birth, there being no distinction in this respect between the coroner's inquisition and a bill of indictment returned by the grand jury. 2 Leach, 1095; 3 Campb., 371; Russ. & Ry., C.C., 240. But in order to found an indictment on a coroner's inquest, the jurors,

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and not merely the coroner, must have suscribed it. Imp. Cor., 65.—(Chitty.)

That such became the practice in Canada is apparent from the following provisions of the Act 4-5 Vict. c. 24, passed in 1841 at the first session of the first provincial parliament of Canada:

IV. And be it enacted, that every Coroner, upon any inquisition taken before him, whereby any person shall be indicted for manslaughter or murder, or as an acces­sory to murder before the fact, shall, in presence of the party accused, if he can be apprehended, put in writing the evidence given to the jury before him, or as much thereof as shall be material, giving the party accused full opportunity of cross-examination; and shall have author­ity to bind by recognizance all such persons as know or declare any thing material touching the said manslaughter or murder, or the said offence of being acces­sory to murder, to appear at the next Court of Oyer and Terminer, or Gaol Delivery, or other Court at which the trial is to be, then and there to prosecute or give evidence against the party charged; and every such Coroner shall certify and subscribe the same evidence, and all such recognizances, and also the inquisition before him taken, and shall deliver the same to the proper Officer of the Court in which the trial is to be, before, or at the opening of the Court.

V. And be it enacted, that when and so often as any person shall be committed for trial by any Justice or Justices, or Coroner as aforesaid, it shall and may be lawful for such Prisoner, his Counsel, Attorney or Agent, to notify the said committing Justice or Justices, or Coroner, that he will so soon as Counsel can be heard, move Her Majesty's Court of Superior Jurisdiction for that part of the Province in which such person stands committed, or one of the Judges thereof, for an order to the Justices of the Peace, or Coroner for the District where such Prisoner shall be confined, to admit such Prisoner to bail, .. .

After Confederation those provisions were promptly reenacted by the Parliament of Canada in an act passed in 1869 entitled "An Act respect­ing the duties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable Offences", (1869 (Can.), c. 30, s. 60,

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61). In the Revised Statutes of Canada 1886, the same provisions essentially unchanged were s. 92 and 93 of c. 174, The Criminal Procedure Act, under the heading "Duties of Coroners and Justices".

From this it seems clear to me that, at the date of Confederation, by the common law and by statute, proceedings at a coroner's inquest were Procedure in Criminal Matters and were properly dealt with as such by the Parliament of Canada. I fail to see how it could be said to be otherwise when a "coroner's inquisition" was the equivalent of an indictment returned by a grand jury. That the coroner proceeded on his own initiative without a charge being laid certainly could not make any difference when it is remembered that a grand jury might investigate on its own and return a presentment. See Blackstone, same edition, p. 301:

A presentment, generally taken, is a very comprehen­sive term, including not only presentments properly so called, but also inquisitions of office, and indictments by a grand jury. A present, properly speaking, is the notice taken by a grand jury of any offense from their own knowledge or observation, without any bill of indictment laid before them at the suite of the king, as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterward frame an indictment, before the party presented can be put to answer it.

An important change was made when s. 642 of the Criminal Code 1892 was enacted as 1892 (Can.), c. 29:

642. After the commencement of this Act no one shall be tried upon any coroner's inquisition.

At the same time s. 568 determined the duties of a coroner after an inquest, as follows:

568. Every coroner, upon any inquisition taken before him whereby any person is charged with manslaughter or murder, shall (if the person or persons, or either of them, affected by such verdict or finding be not already charged with the said offence before a magistrate or justice), by warrant under his hand, direct that such person be taken into custody and be conveyed, with all

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convenient speed, before a magistrate or justice; or such coroner may direct such person to enter into a recogni­zance before him, with or without a surety or sureties, to appear before a magistrate or justice. In either case, it shall be the duty of the coroner to transmit to such magistrate or justice the depositions taken before him in the matter. Upon any such person being brought or appearing before any such magistrate or justice, he shall proceed in all respects as though such person had been brought or had appeared before him upon a warrant or summons.

These provisions in somewhat different form are now to be found in s. 462 (formerly s. 448) and s, 506 (3) (formerly s. 488 (3)) of the present Crimi­nal Code.

I cannot agree that as a result of those changes it can properly be said that a coroner no longer has any criminal jurisdiction. Even if his duties under the Code, when a person is alleged to have com­mitted murder or manslaughter, are only to issue a warrant or to require a recognizance and, in either case, to transmit the evidence to the justice before whom the person charged is to appear, those duties certainly cannot be considered of negligible impor­tance. If a justice who receives an information hears the evidence of witnesses for the sole purpose of deciding whether he will issue a summons or warrant under s. 440 (now s. 455.3(1)) of the 1953 Criminal Code, will anyone contend that the pro­ceedings before him are not in a criminal matter? At the date of Confederation, the proceedings at an inquest by a coroner undoubtedly came within the ambit of Procedure in Criminal Matters just as much as the proceedings before a grand jury. Parliament gave them a different effect when enacting the Criminal Code, 1892. There is noth­ing in that enactment indicating an intention to alter the legal character of those proceedings.

Concerning the definition of "court of criminal jurisdiction" in s. 2(10) of the Criminal Code of 1953 (now an unnumbered paragraph of s. 2), I must point out that this is not a definition of that expression in its usual meaning, but in the very special meaning it has in s. 413(2) (now s. 427). In short, it means a court having jurisdiction to try an indictable offence. This is apparent from the fact

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that this definition does not include summary con­viction courts, although such courts do exist and are mentioned frequently in Part XXIV of the Criminal Code. It is also apparent from the refer­ence to courts presided over by a municipal judge in the cities of Montreal and Quebec. Therefore, the definition of "court of criminal jurisdiction" in no way implies that all courts not enumerated have no criminal jurisdiction. All it means is that such courts have no. jurisdiction to try indictable offences.

It is established by the decision of this Court In Re Storgoff[2] that any remedy by prerogative writ against proceedings in a criminal matter is to be treated as a matter of criminal procedure. Estey J., at p. 593, quotes these words from Lord Esher in Ex Parte Woodhall[3] (at p. 836):

If the proceeding before the magistrate was a pro­ceeding the subject-matter of which was criminal, then the application in the Queen's Bench Division for the issue of a writ of habeas corpus, which if issued would enable the applicant to escape from the consequences of the proceeding before the magistrate, was a proceeding the subject-matter of which was criminal.

From the judgment rendered in the Ontario Court of Appeal by Schroeder J.A. in Wolfe v. Robinson[4], I will quote the following passages (at pp. 135, 137):

It is too late in the day to contend, as did counsel for the Attorney-General, but not too strenuously, that the Coroner's Court is not a criminal Court of record. The office of coroner is one of great antiquity and is believed by some historians to go back to Saxon times, but its historical development can with greater certainty be traced back to a period close to the time of the Norman Conquest. ...

The Coroner's Court being a criminal Court of record, only the Parliament of Canada has authority to enact legislation as to the Rules of Practice and. Procedure

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to be followed in that forum in accordance with the provisions of s. 91(27) of the B.N.A. Act.

In Batary v. Attorney General for Saskatchewan[5], this Court gave consideration to some provisions of the Coroners Act of Saskatche­wan including the following:

15. (1) The coroner and jury shall at the first sitting of the inquest view the body unless a view has been dispensed with under section 9 or 10, and the coroner shall examine on oath, touching the death, all persons who tender their evidence respecting the facts and all persons who in his opinion are likely to have knowledge of relevant facts.

(2) Subject to subsection (3), no person giving evi­dence at the inquest shall be excused from answering a question upon the ground that the answer thereto may tend to criminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person or to a prosecution under any Act of the Legislature, but if he objects to answering the question upon any such ground he shall be entitled to the protection afforded by section 5 of the Canada Evidence Act and by section 33 of the Saskatchewan Evidence Act.

(3) Before a person gives evidence at the inquest subsection (2) shall be read to him by the coroner... .

Cartwright J. said, speaking for the majority of this Court (at pp. 477-8):

Considered by themselves, without regard to the history of the Act, and bearing in mind the rule that the intention to legislate outside its allotted field is not lightly to be imputed to the legislature, these sections could, I think, be construed as not rendering a person charged with an offence arising out of the death compel­lable to give evidence at the inquest; but when s. 15 as it now reads is contrasted with its predecessor s. 15 which was repealed by Statutes of Saskatchewan, 1960, c. 14, s. 3, this construction scarcely seems possible.

The earlier s. 15 read as follows:

The coroner and jury shall, at the first sitting of the inquest, view the body, unless a view has been dis­pensed with under section 9 or 10, and the coroner shall examine on oath, touching the death, all persons who tender their evidence respecting the facts and all persons whom he thinks it expedient to examine as being likely to have knowledge of relevant facts; pro­vided that a person who is suspected of causing the

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death, or who has been charged or is likely to be charged with an offence relating to the death, shall not be compellable to give evidence at the inquest, and if he does so shall not be cross-examined and provided further that before such person gives any evidence this section shall be read to him by the coroner.

I think the conclusion inescapable that by enacting s. 15 in its present form the legislature intended to change the law and to render a person charged with murder compellable to give evidence at the inquest on the body of his alleged victim. Such legislation trenches upon the rule expressed in the maxim nemo tenetur seipsum accusare which has been described (by Coleridge J. in R. v. Scott, 1856, Dears & B. 47 at 61, 169 E.R. 909) as "a maxim of-our law as settled, as important and as wise as almost any other in it." This rule has long formed part of the criminal law of England and of this country. With great respect for the contrary view expressed in the Court of Appeal, I am of opinion that any legisla­tion, purporting to make the change in the law referred to in the first sentence of this paragraph or to abrogate or alter the existing rules which protect a person charged with crime from being compelled to testify against himself, is legislation in relation to the Criminal Law including the Procedure in Criminal Matters and so within the exclusive legislative authority of the Par­liament of Canada under head 27 of s. 91 of the British North America Act.

I can see no reason for viewing in a different light the general character of the Coroners' Act of Quebec and I cannot agree with the suggestion that the legal character of a coroner's inquest be different when a charge has already been laid. If that was true, it would mean that the procedure would be governed by Federal law in such a. case and by provincial law in all other cases. In my view, the decision in Batary, although rendered in a case where the suspected person was actually charged before the inquest, is equally applicable where a person is likely to be charged. The legisla­tion under consideration purported to replace a provision expressly dealing with both situations on the same footing and it was held invalid on the basis that it was "in relation to the Criminal Law including the Procedure in Criminal Matters". No distinction was made in pronouncing such invalidi­ty on that basis and this conclusion on the charac­ter and validity of the legislation cannot be treated as restricted to the particular situation arising out

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of the facts of the case. Even if it could be so considered, the same conclusion should be reached in the instant case as to the character of the coroner's inquest.

However, because in the present case we are solely concerned with the jurisdiction of the Court of Queen's Bench (Crown side) to issue a writ of prohibition, no opinion has to be expressed respect­ing the constitutional validity of any part of the Quebec Coroners' Act. The Provincial Legislature undoubtedly has some jurisdiction, coroners are provincial appointees. Where should the line be drawn between Procedure in Criminal Matters which is within federal jurisdiction and the Administration of Justice in the Province which is within provincial competence does not come for decision today. However, one must remember that in matters which are in themselves of criminal law, the abstinence of the Federal Parliament from legislating to the full limit of its powers does not enlarge the field of provincial jurisdiction: Henry Birks & Sons Ltd. v. City of Montreal,[6] (at p. 811).

I would allow the appeal, set aside the judgment of the Court of Appeal and refer the case back to that Court for a decision on the merits of the appeal from the judgment refusing to allow a writ of prohibition to issue.

The judgment of Martland, Judson, Ritchie, Dickson and de Grandpré JJ. was delivered by

DE GRANDPRÉ J.—Appellant Claude Faber (Jacques Pocetti now being deceased) asks this Court to quash a unanimous decision of the Court of Appeal[7], affirming the judgment at first instance, and to authorize the issuance of a writ of prohibition against the Coroner for the district of Montreal.

In the fall of 1967 the Coroner conducted an inquest into the death of one Jules Csoman. Sever-al times during the course of that inquest the Coroner summoned appellant before him as a wit­ness: on each occasion appellant declined to testify

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and was accordingly convicted of contempt of court. The relevant details are the following:

—December 11, 1967—seven days; —December 18, 1967—four days; —December 20, 1967—three months.

On January 8, 1968 the Coroner handed down the following "open" verdict:

[TRANSLATION] That in my opinion a crime was com­mitted, that the acts constituting it are those described above, and that one or more persons unknown should be held responsible. Police recommended to continue their investigations and make a report in due course.

At the instance of counsel for the Crown the Coroner, on March 5, 1968, again summoned appellant, and the latter maintained his refusal to testify. The inquest was continued to March 12, 1968, and in the interval appellant submitted to George S. Challies A.C.J., sitting in the Court of Queen's Bench, Criminal Side, a motion praying that a writ of prohibition be issued. The principal argument relied on by appellant in his motion was that the matter was dealt with by the Criminal Code, and the Coroner had exhausted his jurisdic­tion with respect to the offence of contempt of court.

Challies A.C.J. refused to accept this argument, and took the view of the Crown, that the matter in question was dealt with by the Code of Civil Procedure.

The question of the jurisdiction of the Court of Queen's Bench, Criminal Side, was not raised before Challies A.C.J. It was, however, argued before the Court of Appeal, which on May 28, 1969 unanimously concluded that, as the matter was of a civil nature, only the Superior Court had authority to hear a motion for prohibition against the Coroner.

On June 16, 1969, on a motion by appellant, this Court granted leave to appeal on the following question of law:

[TRANSLATION] Did the Court of Appeal err in law in holding that the Court of Queen's Bench (Criminal Side) was without jurisdiction to hear and determine the

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merits of the motion by appellant to have a writ of prohibition issued?

There is no question that if the writ of prohibi­tion sought by appellant is to be regarded as a "proceeding in criminal matters" pursuant to s. 708 of the Criminal Code (formerly s. 680), the Court of Queen's Bench, Criminal Side, had jurisdiction to hear and determine the merits of appel­lant's motion. In Minister of National Revenue v. Lafleur[8] this Court pointed out, at p. 416:

[TRANSLATION] Since In re Storgoff, supra, a writ of prohibition is considered as a civil or criminal proceed­ing depending on the subject-matter to which it applies.

The Lafleur decision also notes that if the subject-matter is of a criminal nature the Superior Court lacks jurisdiction, as the latter then belongs at first instance exclusively to the Court of Queen's Bench, Criminal Side.

Further, it goes without saying that if the case is of a civil nature the Superior Court alone has jurisdiction, with the result that the finding of the Court of Appeal in the case at bar is not in error.

Before proceeding with consideration of the arguments raised by appellant, two points in the record should be noted:

(1) appellant does not dispute the constitutionality of the Coroners Act, but asks the Court to interpret it in the light of prior decisions holding that a coroner's inquest is first and foremost a criminal matter;

(2) appellant does not maintain that the Coroner lacked jurisdiction to sentence him to prison as a result of his refusal to testify, but he contends that this jurisdiction is conferred on the Coroner by the Criminal Code, and that consequently it is more restrictive (e.g. s. 472, formerly 456) than it would be if the case were governed by the Code of Civil Procedure (Arts. 49 et seq.).

Within the lines thus indicated appellant relies especially on the authority of the decision of this Court in Batary v. The Attorney General for Saskatchewan et al[9]. In my opinion that case does not resolve the issue: it is only necessary to re-read the reasons of Cartwright J., as he then was,

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delivering the majority ruling (Fauteux J., as he then was, dissenting) in order to realize this. The headnote summary being sufficiently precise, I cite it here in extenso:

The criminal law in force in Saskatchewan is that of England as it existed on July 15, 1870, except as altered, varied, modified or affected by the Criminal Code or any other Act of the Parliament of Canada. Under that law as it existed on that date, a person charged with murder and awaiting trial could not be compelled to testify at an inquest into the death of the deceased with whose murder he was charged. No alteration has been made in this state of the law by the combined effect of ss. 2, 4(1) and 5 of the Canada Evidence Act and ss. 448 and 488(3) of the Criminal Code. These sections of the Canada Evidence Act do not have the effect of render­ing an accused a compellable witness at the coroner's inquest. It would require clear words to bring about so complete a change in the law as it existed in 1870. It would be a strange inconsistency if the law which care-fully protects an accused from being compelled to make any statement at a preliminary inquiry should permit that inquiry to be adjourned in order that the prosecu­tion be permitted to take the accused before a coroner and submit him against his will to examination and cross-examination as to his supposed guilt. In the absence of clear words in an Act of Parliament or other compelling authority, that is not the state of the law. The case of R. v. Barnes, 36 C.C.C. 40, not followed.

By enacting s. 15 of the Coroners Act in its present form, the Legislature intended to change the law and to render a person charged with murder compellable to give evidence at the inquest on the body of his alleged victim. Such legislation trenches upon the rule expressed in the maxim nemo tenetur seipsum accusare. Any legislation purporting to make such a change in the law or to abrogate or alter the existing rules which protect a person charged with a crime from being compelled to testify against himself, is legislation in relation to the Criminal Law including the Procedure in Criminal Mat­ters and therefore within the exclusive legislative author­ity of the Parliament under s. 91(27) of the B.N.A. Act.

In the case at bar appellant, at the time he was required to testify, had not been charged with any offence as a result of the death of Csoman, and as a matter of fact no charge has been brought against him to date, In my view the effect of this

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fundamental difference is that Batary has no application to the case at bar.

This is especially true as, at p. 478, Cartwright J. takes care to state that:

Questions other than those with which I have dealt above were raised in the course of the argument but I do not find it necessary to deal with them.

The fact remains that, until the decision of the British Columbia Court of Appeal in R. v. McDonald[10], the "criminal nature" of the coron­er's inquest had almost never been questioned. That decision, at the very least, disturbed this quasi-certain position, and I shall only cite the relevant summary here:

A person who may be, but has not been, charged with an offence under the Criminal Code or under a penal provincial statute with respect to his conduct or actions involving the death of a person, is a compellable witness at a Coroner's inquest inquiring into that death. The maxim nemo tenetur seipsum accusare does not exempt him from testifying.

Although certain sections of the Coroners Act, R.S.B.C. 1960, c. 78, may be inoperative or ultra vires they are clearly severable, and the rest of the Act, including a section fixing the number of jurors at six, is intra vires the Legislature of British Columbia as legis­lation in relation to the administration of justice in the Province under s. 92(14) of the B.N.A. Act. A Coroner's Court is not a criminal Court in the sense of a Court administering "the Criminal Law" or dealing with "criminal matters" within the meaning of s. 91(27) of the B.N.A. Act, and hence the procedure in a Coroner's Court does not come under the jurisdiction of Parliament.

In order to answer the question before the Court it is necessary to consider the role of the coroner in Quebec at the present time, the nature of the institution and the purpose of the inquests en-trusted to him by the law. Such an undertaking could take us far afield, and I shall merely indicate the general outline,

The Courts have reviewed the development of the coroner's function on several occasions, and I

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refer to the following decisions here for back-ground purposes, not that I subscribe to their conclusions, but because they provide useful data for analysis of the question: R. v. Hammond[11]; R. v. Lalonde et al.[12]; Wolfe v. Robinson[13].

It must be noted that, notwithstanding the title of the proceedings at bar, no such thing as the "Coroner's Court (Montreal)" or the "Court of Record (Montreal)" exists. As there is no federal legislation concerning the coroner (except inciden­tally), the nature and functions of this institution must be sought exclusively in c. 19 of 1966-67 (Que.), given royal assent on June 29, 1967 and titled the Coroners Act. Nowhere in this Act is any mention made of a Coroner's Court. Rather, the Act provides, inter alia, the following:

(1) a coroner is appointed for a judicial district or part of a judicial district (s. 1);

(2) permanent coroners are appointed in accordance with the Civil Service Act (s. 7);

(3) the coroner is required to make a return to the Attorney General on every case investigated (s. 13);

(4) similarly, the coroner must make a return to the Attorney General on each inquest (s. 30).

These are definitely not the prerogatives of a "court" in the ordinary sense. Even if it could be said that coroners as a whole constitute a court, the latter would not be a court of record, as can clearly be seen from ss. 13 and 32 of the Act. These sections subject the coroner to a requirement, and we need only refer here to the last paragraph of s. 32:

He shall also deposit forthwith in the office of the clerk of the peace of the district where the inquest was held the originals of the documents mentioned in paragraphs a, b and c and a copy of the return contemplated in section 30.

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The conclusion that coroners do not constitute a court, even less a court of record, under the legisla­tion of Quebec, appears to me to be in accordance with the provisions found in the Criminal Code. A "court of criminal jurisdiction" is defined as follows in s. 2:

(a) a court of general or quarter sessions of the peace, when presided over by a superior court judge or a county or district court judge, or in the cities of Montreal and Quebec, by a municipal judge of the city, as the case may be, or a judge of the sessions of the peace,

(b) a magistrate or judge acting under Part XVI, and

(c) in the Province of New Brunswick, the county court.

There is thus no reference to a Coroner's Court. Further, s. 23 of the Canada Evidence Act makes a clear distinction between a court and a coroner:

(1) Evidence of any proceeding or record whatever of, in, or before any court in Great Britain or the Supreme or Exchequer Courts of Canada, or any court in any province of Canada, or any court in any British colony or possession, or any court of record of the United States of America, or of any state of the United States of America, or of any other foreign country, or before any justice of the peace or coroner in any prov­ince of Canada, may be given in any action or proceed­ing by an exemplification or certified copy thereof, purporting to be under the seal of such court, or under the hand or seal of such justice or coroner, as the case may be, without any proof of the authenticity of such seal or of the signature of such justice or coroner, or other proof whatever.

(2) Where any such court, justice or coroner has no seal, or so certifies, such evidence may be made by a copy purporting to be certified under the signature of a judge or presiding magistrate of such court or of such justice or coroner, without any proof of the authenticity of the signature, or other proof whatever.

What can be said of the coroner's functions under Quebec legislation? The answer is to be found in s. 11 in the case of investigations:

The coroner must investigate the circumstances of the death of any person whose death does not appear to him to have resulted from natural causes or to have been purely accidental but which may have occurred from

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violence, or negligent or culpable conduct of a third person.

He shall also make such an investigation whenever the Attorney-General requires him to do so.

and in s. 14 in the case of inquests:

The coroner must hold an inquest into the circum­stances of a death whenever he has reason to believe, after his investigation, that the death occurred from violence, or negligent or culpable conduct of a third person.

He must also hold an inquest whenever the Attorney-General requires him to do so.

The jurisdiction is thus quite general in nature, and not primarily criminal. I shall return to this point below.

The position is quite different from what it was nearly a century ago, when in 1879 the Quebec legislature, by c. 12 of 1879 (Que.), provided as follows:

WHEREAS it is expedient to put an end to the holding of useless inquests in the Province of Quebec, in the case of sudden deaths arising from accidents and without the commission of any crime; Therefore, Her Majesty, by and with the advice and consent of the Legislature of Quebec, enacts as follows:

1. No coroner shall hold an inquest on the death of any person, unless he is furnished with a certificate signed by a justice of the peace establishing that there is reason to suspect that such death has been caused by the commission of a crime, or when such inquest is demanded by a requisition in writing signed by the mayor, the curé, pastor or missionary of the locality, or by a justice of the peace of the county.

Since that time there has been a regular evolu­tion in the thinking of the legislator. We need only refer to the following major dates.

In 1880, by c. 10 of 1880 (Que.), it was enacted that no inquest should be held unless the coroner had reason to believe "that a crime has been committed, or that the deceased died from violence or unfair means, or under such circumstances as require investigation" (s. 1).

In 1892, c. 26 of 1892 (Que.) gave the coroner jurisdiction where "he has good reason for believing

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that the deceased did not come to his death from natural causes or from mere accident or mischance, but came to his death from violence or unfair means or culpable or negligent conduct of others, under circumstances requiring investigation by a coroner's inquest" (s. 1).

In 1964, the penultimate stage of this evolution is found in c. 29 of the Revised Statutes of Quebec, s. 16, which reads as follows:

The coroner may himself investigate the circum­stances which preceded or accompanied the death of any person, when he has good reason to believe that the deceased came to his death, not from natural causes or from mere accident or mischance, but from violence, or negligent or culpable conduct of some other person, under circumstances such as might subsequently require the holding of a coroner's inquest.

The Attorney-General may also, whenever he deems it expedient in the public interest, direct the coroner to make an investigation into the circumstances which have preceded or accompanied the death of any person.

The coroner shall give a burial permit when it is established by his investigation that the deceased came to his death from natural causes or from mere accident or mischance.

This evolution in the legislation of Quebec, which shifts the jurisdiction of the coroner from investigation of crimes to investigation of every-thing that is not natural of purely accidental, is not without relevance, in my opinion, to the development in the thinking of the legislator having jurisdiction in criminal proceedings.

In 1841, by c. 24 of 1841 (Can.), the province of Canada enacted, in ss. IV and V:

IV. And be it enacted, that every Coroner, upon any inquisition taken before him, whereby any person shall be indicted for manslaughter or murder, or as an acces­sory to murder before the fact, shall, in presence of the party accused, if he can be apprehended, put in writing the evidence given to the jury before him, or as much thereof as shall be material, giving the party accused full opportunity of cross-examination; and shall have author­ity to bind by recognizance all such persons as know or declare any thing material touching the said man-slaughter or murder, or the said offence of being acces­sory to murder, to appear at the next Court of Oyer and Terminer, or Gaol Delivery, or other Court at which the

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trial is to be, then and there to prosecute or give evidence against the party charged; and every such Coroner shall certify and subscribe the same evidence, and all such recognizances, and also the inquisition before him taken, and shall deliver the same to the proper Officer of the Court in which the trial is to be, before, or at the opening of the Court.

V. And be it enacted, that when and so often as any person shall be committed for trial by any Justice or Justices, or Coroner as aforesaid, it shall and may be lawful for such Prisoner, his Counsel, Attorney or Agent, to notify the said committing Justice or Justices, or Coroner, that he will so soon as Counsel can be heard, move Her Majesty's Court of Superior Jurisdiction for that part of the Province in which such person stands committed, or one of the Judges thereof, for an order to the Justices of the Peace, or Coroner for the District where such Prisoner shall be confined, to admit such Prisoner to bail, whereupon it shall be the duty of such committing Justice or Justices, or Coroner, with all convenient expedition to transmit to the office of the Clerk of the Crown, close under the hand and seal of one of them, a certified copy of all informations, exami­nations, and other evidences, touching the offence wherewith such Prisoner shall be charged, together with a copy of the warrant of commitment and inquest, if any such there be, and that the packet containing the same shall be handed to the person applying therefor, in order to such transmission, and it shall be certified on the outside thereof to contain the information touching the case in question.

In 1869 Parliament demonstrated the same thinking in ss. 60 and 61 of 1869 (Can.), c. 30.

It was reaffirmed in 1886 in c. 174 of the Revised Statutes of Canada.

92. Every coroner, upon any inquisition taken before him, whereby any person is indicted for manslaughter or murder, or as an accessory to murder before the fact, shall, in the presence of the accused, if he can be apprehended, reduce to writing the evidence given to the. jury before him, or as much thereof as is material, giving the accused full opportunity of cross-examination; and the coroner shall have authority to bind by recogni­zance all such persons as know or declare anything material touching the manslaughter or murder, or the offence of being accessory to murder, to appear at the next court of oyer and terminer, or gaol delivery, or other court or term or sitting of a court, at which the

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trial is to be, then and there to prosecute or give evidence against the person charged; and every such coroner shall certify and subscribe the evidence and all the recognizances, and also the inquisition taken before him, and shall deliver the same to the proper officer of the court at the time and in the manner specified in the seventy-seventh section of this Act. 32-33 V., c. 30, s. 60.

93. When any person has been committed for trial by any justice or coroner, the prisoner, his counsel, attorney or agent may notify the committing justice or coroner, that he will, as soon as counsel can be heard, move before a superior court of the Province in which such person stands committed, or one of the judges thereof, or the judge of the county court, if it is intended to apply to such judge, under the eighty-second section of this Act, for an order to the justice or coroner for the territorial division where such prisoner is confined, to admit such prisoner to bail,—whereupon such committing justice or coroner shall, as soon as may be, transmit to the office of the clerk of the Crown, or the chief clerk of the court, or the clerk of the county court or other proper officer, as the case may be, close under his hand and seal, a certified copy of all informations, examina­tions and other evidences, touching the offence where-with the prisoner has been charged, together with a copy of the warrant of commitment and inquest, if any such there is; and the packet containing the same shall be handed to the person applying therefor, for transmission, and it shall be certified on the outside thereof to contain the information concerning the case in question. 32-33 V., c. 30, s. 61.

Reference should also be made to paras. (c) and (d) of s. 2 of this Act, which contain the following definitions:

(c) The expression "indictment" includes informa­tion, inquisition and presentment as well as indictment, and also any plea, replication or other pleading, and any record;

(d) The expression "finding of the indictment" includes also the taking of an inquisition, the exhibiting an information and the making of a presentment.

This whole position was profoundly altered in 1892, when for the first time a complete Criminal Code was adopted.

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(1) The definitions found in paras. (i) and (j) of s. 3 are quite different, and read as follows:

(i) The expression "indictment" and "count" respectively include information and presentment as well as indictment, and also any plea, replication or other pleading, and any record; R.S.C., c. 174, s. 2(c).

(j) Finding the indictment includes also exhibit­ing an information and making a presentment; R.S.C., c. 174, s. 2(d).

(2) Section 642 states that:

After the commencement of this Act no one shall be tried upon any coroner's inquisition.

(3) Section 568 limits the powers of the coroner:

Every coroner, upon any inquisition taken before him whereby any person is charged with man-slaughter or murder, shall (if the person or persons, or either of them, affected by such verdict or finding be not already charged with the said offence before a magistrate or justice), by warrant under his hand, direct that such person be taken into custody and be conveyed, with all convenient speed, before a magistrate or justice; or such coroner may direct such person to enter into a recognizance before him, with or without a surety or sureties, to appear before a magistrate or justice. In either case, it shall be the duty of the coroner to transmit to such magistrate or justice the depositions taken before him in the matter. Upon any such person being brought or appearing before any such magis­trate or justice, he shall proceed in all respects as though such person had been brought or had appeared before him upon a warrant or summons.

For the purposes of the case at bar (since the issue arose in 1967), the evolution of the Criminal Code ceases with the 1953 version:

448. (1) Where a person is alleged, by a verdict upon a coroner's inquisition, to have committed murder or

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manslaughter but he has not been charged with the offence, the coroner shall

(a) direct, by warrant under his hand, that the person be taken into custody and be conveyed, as soon as possible, before a justice, or

(b) direct the person to enter into a recognizance before him with or without sureties, to appear before a justice.

(2) Where a coroner makes a direction under subsec­tion (1) he shall transmit to the justice the evidence taken before him in the matter.

Simple comparison of these enactments indi­cates that the coroner is not now a part of the structure of criminal justice. The link was com­pletely severed in 1892, and subsequent legislative changes have only made this fact more apparent. The traditional role of the coroner, as it existed in England, disappeared, and was replaced by a duly Canadianized function, one which was not primarily of a criminal nature, but came to have a social context. This development can be seen, for instance, in the last paragraph of s. 30 of the Coroners Act:

The coroner, in his report, may make any useful suggestions for the protection of society.

At the present time the coroner's inquest may be taken to have at least the following functions, apart from the investigation of crime:

(a) identification of the exact circumstances surrounding a death serves to check public imagination, and prevents it from becoming irresponsible;

(b) examination of the specific circumstances of a death and regular analysis of a number of cases enables the community to be aware of the factors which put human life at risk in given circumstances;

(c) the care taken by the authorities to inquire into the circumstances, every time a death is not clearly natural or accidental, reassures the public and makes it aware that the government is acting to ensure that the guarantees relating to human life are duly respected.

In this situation, while the investigation of crime is important, it is not the determining aspect of the

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coroner's functions, with the result that the "crimi­nal" aspect is not predominant.

Furthermore, the proceeding itself is not as such concerned with the investigation of crime. As has been indicated on several occasions,

(a) the inquest is not a trial;

(b) there is no accused.

In view of this, I am unable to accept the conclusions stated in decisions holding that the coroner is a court, or a court of record, with criminal jurisdiction, especially as in many such cases the observation was made obiter. On the contrary, as I indicated above, I accept the conclu­sion of the British Columbia Court of Appeal in R. v. McDonald, cited above; and I extract this sen­tence from the reasons of Bull J. (at p. 305):

I therefore conclude that the very nature of the inquiry held by the Coroner in Canada, which is not a trial and at which there is no party or person accused and the function of which is to investigate many other matters than to find that murder or manslaughter has been committed, is such that this Court cannot fairly be said to be a "Court of Criminal Jurisdiction", whose procedures before such a verdict, if any, are with respect to 'Criminal Matters' or 'criminal law' in order to come under the exclusive authority of Parliament.

Similarly, I adopt the following paragraphs from the reasons of McFarlane J., found at p. 308 following a quotation from the judgment of the Ontario Court of Appeal in Wolfe v. Robinson, cited above:

To this apt description I would add that at a Coron­er's inquest, under the Act, there is no lis, no accused and no charge, The statute does not purport to confer jurisdiction to try any person accused of any wrongful act, to acquit, convict or punish. Where the jury's verdict is that the deceased came to his death by murder or manslaughter their inquisition shall certify the per-sons (if any) guilty of the murder or manslaughter or of being accessories before the fact of such murder (s. 15). This is an incidental or ancillary function and does not of itself set the criminal law in motion. Coroners are also required to hold inquests in many cases where there is no suggestion or suspicion of wrongdoing. It may be said fairly that one of the salutary results of inquests is to allay suspicions and remove doubts.

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In my opinion the legislation in its pitch and sub-stance is enacted in relation to the administration of justice in the Province, thus being within the exclusive legislative jurisdiction of the Province under head 14 of s. 92.

For all these reasons, therefore, Salvas J., speak­ing for the Court of Appeal, properly wrote:

[TRANSLATION] According to the terms of Canada's constitution, ". .. the ... Maintenance, and Organiza­tion of Provincial Courts, both of Civil and Criminal Jurisdiction" falls within the exclusive authority of the legislature of this province (B.N.A. Act, 1867, s. 92(14)).

There is no Coroner's Court in the province of Quebec, In this province the courts "in civil, criminal and mixed matters" are set out in the first section of the Courts of Justice Act (R.S.Q. c. 20). This list does not include a Coroner's Court. Section 3 of the same statute provides that the coroner is an officer of justice, one of the officers of justice appointed in each district by the Lieutenant Governor in Council for "the administration of justice in the Province".

The coroner is dealt with by a special Quebec Act (15-16 Eliz. II, c. 19). The inquest of Coroner Lapointe is that prescribed by s. 14 of this Act (Section IV, para. 1). Paragraph Two of this Section (ss. 19 to 29) pre-scribes the rules of procedure and of evidence which are applicable to this inquest. It is here that the question arises as to whether this proceeding and this evidence are "proceedings in criminal matters" (Cr. Codes. 680). Appellant says they are; this is his fundamental argu­ment. In support of his thesis, he cites s. 27 (15-16 Eliz. II, c. 19), which provides that:

'The ordinary rules of evidence in criminal matters shall apply to coroners inquests.'

With all due respect, I feel that, on the other hand, the argument that appellant derives from this provision is unfavorable to his case. If the coroner's inquest were a criminal matter s. 27 would be superfluous. Thus, the Canada Evidence Act, which applies to the entire coun­try, provides that Part I of the said Act, with which we are concerned here, applies to "all criminal proceedings" (R.S.C. c. 307, s. 2).

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Appellant argues that the Superior Court referred to in the provision of s. 23 (15-16 Eliz. II, c. 19) dealing specifically with the punishment of recalcitrant wit­nesses is the superior court of criminal jurisdiction. In the province of Quebec this court is the Court of Queen's Bench, sitting as a criminal court of original jurisdiction (Cr. Code s. 2(14) and R.S.Q. e. 20, s. 61). The Superior Court is again mentioned in ss. 21 and 22. When in the Coroners Act the Quebec legislator refers to the Superior Court it is clear, in my view, that the intended reference is to the Superior Court, which was established by another Act of the aforesaid legislator (R.S.Q. c. 20, s. 21). If that legislator had wished to refer to a superior court of criminal jurisdiction in s. 23 of the Coroners Act, he would have spoken of the "Court of Queen's Bench, sitting as a criminal court of original jurisdiction" (R.S.Q. c. 20, s. 61). In short, the legislator said clearly what he meant to say.

In my view the inquest prescribed by s. 14 of the Coroners Act is not a criminal matter. On the contrary, its purpose is to determine whether there has been a crime, or more precisely, whether there was a criminal matter associated with the death of an individual. It is limited to the "circumstances of a death". The inquest is that of the coroner, and not of the ,Crown or of some other party. Before the coroner there is neither an accuser or an accused. The purpose of the inquest is not the prosecution or punishment of an accused.

The Coroners Act derives from the exclusive power of provincial legislatures to make laws in relation to "the administration of justice in the province" and "the imposition of punishment ... for enforcing" such laws (B.N.A. Act, s. 92(14) and (15)),

The inquest held by Coroner Lapointe is not a crimi­nal matter within the meaning of s. 680 of the Criminal Code. As the court of first instance was a court sitting "in criminal matters", (of art. 7.08 C. Cr.) it had no jurisdiction to rule on the merits of appellant's motion. For this reason, I conclude that the motion should be dismissed.

I would dismiss the appeal with costs.

Appeal dismissed with costs, LASKIN C.J. and SPENCE, PIGEON and BEETZ JJ. dissenting.

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Solicitor for the appellant: Raymond Daoust, Montreal.

Solicitors for the respondents and mis en cause: Gabriel Lapointe and Louis Paradis, Montreal.