R. v. Dobberthien, [1975] 2 SCR 560

Supreme Court of Canada

R. v. Dobberthien, [1975] 2 S.C.R. 560

Date: 1974-10-01

Michael William Dobberthien Appellant;

and

Her Majesty The Queen Respondent.

1974: May 28; 1974: October 1.

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

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Criminal law—Evidence—Order excluding witnesses—Crown witnesses failing to comply and permitted to testify—Trial judge expressly reserving question of weight to be attached to rebuttal evidence of only one witness—Whether error in law—Criminal Code, R.S.C. 1970, c. C-34, s. 618 (1).

The appellant was convicted at trial for having narcotics in his possession for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1. At the outset of the trial an order excluding all witnesses was granted on the application of counsel for the appellant. Despite this order a number of Crown witnesses remained in the court-room while defence evidence was being given and later were called in rebuttal. Although the trial judge expressly reserved to himself the question of the weight to be attached to the evidence of one of these witnesses, no similar reservation was expressly stated in relation to the evidence of the others. On appeal, the Appellate Division of the Supreme Court of Alberta, by a majority, affirmed the appellant’s conviction. An appeal under s. 618(1) of the Criminal Code was then brought to this Court.

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

Per Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ.: In criminal cases where a trial judge has ordered witnesses to be excluded from the court-room, the rule is that if a witness nevertheless remains in court (a) he is not necessarily disqualified, although, in certain circumstances, the trial judge may exclude his evidence; (b) the weight, if any, to be given to his evidence is for the jury, or for

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the judge, if there is no jury, to decide. Under the present circumstances, where the trial judge had expressly indicated his understanding of the rule in the case of one of the rebuttal witnesses, it should be assumed that he governed himself by the same considerations in evaluating the testimony of the other witnesses who remained in court notwithstanding the order excluding them. Accordingly, no question of substantial wrong or miscarriage of justice arose in this case.

Per Laskin C.J. and Spence J., dissenting: It was with respect to the rebuttal evidence of only one of the Crown witnesses that the trial judge mentioned the necessity to caution himself as to the weight it should be given. He regarded the evidence given by the other witnesses, upon the rebuttal, as being important, but the record indicated that he did not feel under any compulsion to consider the effect on the weight of their evidence caused by their remaining in court to hear the very evidence which they later, in their testimony, rebutted. There was error in law not in the failure to recite the caution as to these witnesses but rather in the failure to realize that a caution was required.

[Moore v. Lambeth County Court Registrar, [1969] 1 W.L.R. 141; Cook v. Nethercotte (1835), 6 Car. & P. 741, 172 E.R. 1443; Thomas v. David (1836), 7 Car. & P. 350, 173 E.R. 156; Chandler v. Home (1842), 2 M. & Rob. 423, 174 E.R. 338; R. v. Briggs (1930), 22 Cr. App. R. 68; R. v. Thompson, [1967] Crim. L.R. 62; Black v. Besse (1887), 12 O.R. 522; R. v. Carefoot (1948), 90 C.C.C. 331, referred to.]

APPEAL from a judgment of the majority of the Appellate Division of the Supreme Court of Alberta[1], affirming the appellant’s conviction at trial for having narcotics in his possession for the purpose of trafficking contrary to s. 4 (2) of the Narcotic Control Act, R.S.C. 1970, c. N‑1. Appeal dismissed, Laskin C.J. and Spence J. dissenting.

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R. Sadownik, for the appellant.

A.A. Sarchuk, Q.C., for the respondent.

The judgment of Laskin C.J. and Spence J. was delivered by

SPENCE J. (dissenting)—I have had the opportunity of reading the reasons for judgment which are being delivered by Ritchie J. With respect, I must differ with my learned brother’s conclusion. I am of the opinion that Sinclair J.A., in his dissenting reasons in the Appellate Division of the Province of Alberta, accurately cited the practice with respect to the exclusion of witnesses that ought to be followed in a criminal case, as follows:

1. The trial judge may order any witness, other than the accused, excluded from the court room. Such a direction will ordinarily apply to all witnesses whose names are listed on the indictment, to any other persons who may be called by the prosecution, and to witnesses who may be called by the accused.

2. Unless otherwise directed by the judge, such a witness must remain outside the court room until all of the evidence, including that given in rebuttal is completed.

3. If a witness nevertheless remains in court:

(a) he is not necessarily disqualified, although, in certain circumstances, the trial judge may exclude his evidence.

(b) the weight, if any, to be given to his evidence is for the jury, or for the judge, if there is no jury, to decide.

In my opinion, the discretion exercised by Bowen J. when he received the evidence of the various witnesses who had remained in the court room despite the order for their exclusion made at the commencement of the hearing, cannot be criticized. Bowen J. realized that when exercising his discretion to receive the evidence of such a witness he should none the less have regard for the fact that the witness had wilfully disobeyed the order of the Court by remaining in the court-room despite the order for exclusion and should consider that in weighing

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the evidence of the said witness. I quote the learned trial judge’s comments when admitting the evidence of Sergeant John William Fitzpatrick:

I think, sir, this witness will be heard. The question of the weight of his evidence will certainly be weighed by this court.

However, Bowen J. made no similar comment as to the evidence of any of the other witnesses who had heard the order of exclusion and then had remained in the courtroom relying, perhaps, on the fact that they had not been called in chief. I would not be ready to say that such failure to mention the necessity to caution himself as to weight in each of these cases would justify an inference that the learned trial judge had failed to exercise such caution apart from certain important circumstances at the trial. I cite from the transcript as to what occurred when Detective Walter Porfon was called in the Crown’s reply:

DETECTIVE WALTER PORFON, sworn, examined by Mr. Mousseau:

Q. Detective Porfon, you were present while Mr. Fallis gave his evidence?

A. Yes, I was.

Q. And—

MR. SADOWNIK: By what right does he have to be present while Fallis gave his evidence? That was one of the conditions that the witnesses be excluded as I understood—

MR. MOUSSEAU: If I may, My Lord, he was not called as a witness in these proceedings. He is now being called as a witness in rebuttal.

MR. SADOWNIK: A witness is a witness. I fail to see the distinction.

THE COURT: I think there is quite a distinction in terms of being able to use the rebuttal evidence properly, Mr. Sadownik. I will allow him to go ahead.

Detective Porfon had been listed as a Crown witness on the indictment but had not been called to give evidence as part of the Crown’s

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case. He was therefore in the same position as Sergeant John William Fitzpatrick as to whom the Court had made the remark which I have quoted above in reference to the weighing of his evidence. Detective Porfon’s evidence in rebuttal was most critical. The accused’s companion, Fallis, had sworn that it was he and not the accused who placed the prohibited drugs in the trunk of the accused’s automobile. Detective Porfon testified, in rebuttal, that Fallis had told him, Detective Porfon, that the appellant himself had placed the drugs in the vehicle.

The learned trial judge was under a duty to warn himself even more strictly as to the evidence of Detective Porfon than as to the evidence of Sergeant Fitzpatrick and yet the learned trial judge was silent as to any such necessity.

Another rebuttal witness was Corporal Murray. He had given evidence upon the Crown’s case and he was fully cognizant of the order excluding witnesses because part way through his testimony he noticed that another constable, Meggison, was present despite the order excluding him and pointed out this fact so that Meggison was directed personally by the judge to leave the court-room. Corporal Murray was also recalled in rebuttal and although Sinclair J.A. has come to the conclusion that he had been present during the defence evidence there was no reference to that fact during the course of the trial. I would presume that neither the learned trial judge nor the defence counsel realized that Murray had been present during that period. Corporal Murray gave very important evidence of a conversation which he had with the accused man at the preliminary hearing when the accused had asked Corporal Murray why he wanted a certificate of analysis that indicated there were some empty capsules since the capsules had all been full, and also why the accused’s name appeared on the certificate of analysis. Despite a very long cross-examination during his evidence given upon the Crown’s case in-chief, Corporal Murray had not referred

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to this important evidence which might well have been considered an admission by the accused.

The learned trial judge regarded the evidence given by these two witnesses, Detective Porfon and Corporal Murray, upon the rebuttal, as being important. He said:

If there were any doubt in my mind the rebuttal evidence has certainly overcome it, particularly the evidence of Corporal Murray who recited to the Court the statement of the accused at the time of the Preliminary Hearing, when the accused asked why on one certificate it indicated empty capsules—or at least why one certificate indicated empty capsules because they were all full.

Before placing such reliance upon the evidence of these two witnesses, Corporal Murray and Detective Porfon, the learned trial judge should have been careful to consider the effect on the weight of their evidence caused by their remaining in court to hear the very evidence which they later, in their testimony, rebutted. I am, however, of the opinion, with respect, that the learned trial judge did not feel that he was under any such compulsion and I rely upon the remarks which I have quoted above and which I repeat:

I think there is quite a distinction in terms of being able to use rebuttal evidence properly, Mr. Sadownik. I will allow him to go ahead.

I am therefore of the opinion that there was an error in law not in the failure to recite the caution as to these last-two named witnesses but rather in the failure to realize that a caution was required. For that reason, I would allow the appeal.

Sinclair J.A. in giving dissenting reasons in the Appellate Division would have quashed the conviction saying:

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The problem in this case is that the evidence given by the Crown witnesses in rebuttal may be material in a new trial. If such evidence were to be given its value would still be affected by the fact that it came into being, at the first trial, in conditions where its character may have been adversely affected, consciously or unconsciously, by the evidence given by the defence witnesses. For that reason, it seems to me that in the circumstances of this case it would be impossible for the accused to receive a fair trial if a new one were to be directed. Accordingly, a verdict of acquittal ought to be entered.

Surely, that comment would be applicable to any case where an Appellate Court directed a new trial. I think that the matter will have to be handled at that new trial and, therefore, I would, in allowing the appeal and quashing the conviction not enter an acquittal but rather direct a new trial.

The judgment of Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Granpré JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the majority of the Appellate Division of the Supreme Court of Alberta, Mr. Justice Sinclair dissenting, which affirmed the appellant’s conviction at trial for having narcotics in his possession for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1. It appears that no formal order was taken out embodying the conclusion reached by the majority of the Appellate Division or reciting the reasons for Mr. Justice Sinclair’s dissent, but the appeal is clearly brought under s. 618(1) of the Criminal Code on the ground that that dissent was on a question or questions of law.

Broadly speaking, Mr. Justice Sinclair’s dissenting opinion appears to me to be limited to the proposition that, whenever a trial judge has made an order excluding all witnesses and some

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are later called who have remained in court and hear the evidence which they are called to rebut, the trial judge is required, as a matter of law, to instruct himself orally in respect of the evidence of each such witness that he will consider the weight to be given to that evidence in light of the witness having remained in court in breach of the order. In view of the narrow grounds upon which Mr. Justice Sinclair based his reasons for judgment, I do not consider it necessary to deal with the facts which the learned trial judge found to constitute proof of the offence as charged.

At the outset of the trial before Mr. Justice Bowen, counsel for the appellant moved for the exclusion of the witnesses and the learned trial judge made the following order:

All of the witnesses that are in this court room that are going to give evidence in this matter will go outside the court room and will remain there until such time as they are called. And they will not communicate with any witnesses who have given evidence and gone out of the court room.

During the course of the Crown’s evidence in chief it was pointed out to the Court that one Constable Meggison, whose name appeared as a witness on the indictment, had remained in the court and he was duly excluded from the courtroom. Constable Meggison was, however, later called for the sole purpose of proving the service on the appellant of the certificates of analysis of the narcotics which had been seized. No objection was taken to this evidence at the time but he was subjected to cross-examination as to the facts by counsel for the appellant. While Mr. Justice Sinclair does not take express objection to Meggison having been called as he was, it is quite apparent that the fact of calling him after the order for exclusion is viewed at least with suspicion by counsel for the appellant.

After the evidence for the defence had been completed three witnesses were called in rebuttal. The first was Corporal Murray who had

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already testified in chief and of whom Mr. Justice Sinclair says:

Although the record is not clear on this point, it seems probable that he had remained in the court room after leaving the stand, and that he was present while the appellant and Fallis testified. No objection was, however, made by counsel for the appellant.

The next Crown witness in rebuttal was Detective Porfon who had been named on the indictment and not previously examined by either side. Counsel for the appellant at once objected and the following colloquy ensued:

MR. SADOWNIK: (for the appellant) By what right does he have to be present while Fallis gave his evidence? That was one of the conditions that the witnesses be excluded as I understood—

MR. MOUSSEAU: (for the Crown) If I may, My Lord, he was not called as a witness in these proceedings. He is now being called as a witness in rebuttal.

MR. SADOWNIK: A witness is a witness. I fail to see the distinction.

THE COURT: I think there is quite a distinction in terms of being able to use the rebuttal evidence properly, Mr. Sadownik. I will allow him to go ahead.

The Crown then called Staff Sergeant Fitzpatrick whose name had appeared on the indictment but who had not been previously examined, although he had been present for part of the appellant’s evidence and for that of the appellant’s companion, Mr. Fallis. Counsel for the accused again objected and the Court made the following ruling:

THE COURT: I think, sir, this witness will be heard. The question of the weight of his evidence will certainly be weighed by this Court.

The ratio decidendi of the dissenting opinion is, in my opinion, aptly summarized in the fol-

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lowing paragraph of Mr. Justice Sinclair’s reasons for judgment:

As I have mentioned, in my opinion none of the Crown witnesses called in rebuttal ought to have been present while defence evidence was being given. The fact that they were undoubtedly affects the weight to be given to their testimony. It was only with respect to the rebuttal evidence given by Detective Sergeant Fitzpatrick that the learned trial judge said he would consider the weight it should be given. However, nowhere did he direct himself as to the weight to be given to the rebuttal evidence of Corporal Murray and Detective Porfon, bearing in mind that it may have been affected by their being present when the very evidence they were called to rebut was being heard. In my view, in the circumstances here, that was a wrong decision on a question of law, and the judgment should be set aside unless this Division is of the opinion that no substantial wrong or miscarriage of justice has occurred.

In the result Mr. Justice Sinclair would have directed that a verdict of acquittal be entered.

In the course of his reasons for judgment the learned dissenting judge examined a number of cases and appears to have given at least tacit approval to the observations of Edmund Davies L.J. in the case of Moore v. Lambeth County Court Registrar[2], where he said, at p. 142:

No rule of law requires in a trial that the witnesses to be called by one side must all remain out of the court until their turn to give testimony arises. This is purely a matter within the discretion of the court. Indeed, if the court rules that witnesses should be out of court and a witness nevertheless remains inside, while the judge may well express his grave displeasure over such disobedience, he has no right to refuse to hear the evidence of such a witness.

This state of the law has existed in England from the earliest times and reference can conveniently be made to the case of Cook v.

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Nethercotte[3], which is a judgment of Baron Alderson, and Thomas v. David[4], in which Mr. Justice Coleridge presided at Assize in March 1836. In the former case, the headnote reads:

It is no ground for rejecting a witness’s evidence, that he remained in Court after an order for all witnesses to leave the Court, it is merely a matter of observation on his evidence.

while in the latter case Coleridge J. stated the rule as follows:

The rule you refer to in in the Court of Exchequer is confined to revenue cases, in other cases, the rule there is the same as it is in the other Courts, namely, that the rejection of the evidence is entirely in the discretion of the Judge; and that being so, I think that under the particular circumstances of this case I shall be exercising sound discretion in rejecting the evidence.

The purport of Coleridge J.’s statement is made even clearer in the headnote of that case which reads:

If a witness come into Court and hear some of the evidence after the witnesses have been ordered out of Court, it is entirely in the discretion of the Judge whether he shall be examined or not; and this is so in the Exchequer as well as in other Courts, the only difference in that Court being confined to revenue cases, in which the rule is strict, that such witnesses cannot be examined.

As the learned trial judge has noted, Mr. Justice Erskine in the case of Chandler v. Home[5] made the following comment on the treatment to be accorded to witnesses who had remained in court after an order for exclusion:

It used to be formerly supposed that it was in the discretion of the judge whether the witness should be examined. It is now settled and acted upon by all the judges that the judge has no right to exclude the witness; he may commit him for the contempt, but he must be examined; and it is then matter of remarkon the value of his testimony that he has wilfully disobeyed the order.

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Mr. Justice Sinclair also refers to the more recent English cases of R. v. Briggs[6] and R. v. Thompson[7] in which the well-established rule is restated, and he also had occasion to refer to the Canadian case of Black v. Besse[8], where Proudfoot J. said, at p. 523:

…I think the practice is, that the evidence of such a witness should be received, but with great care.

The Canadian case of R. v. Carefoot[9] was also made the subject of comment by the learned dissenting judge. In that case the magistrate presiding at trial had refused to hear a Crown witness who remained in court after an order for exclusion was made. On appeal by way of stated case LeBel J. ordering a new trial said, at p. 335:

When an order has been made for the exclusion of witnesses one side, and sometimes both sides, are unaware of all that a witness may say in the course of his testimony, and if it becomes necessary unexpectedly to call some present in the Court room in rebuttal, this person cannot be said to be included in the order for exclusion. Moreover, if witnesses remain in Court after an order has been made for their withdrawal, a Court has no right to exclude their testimony however much a witness’ disobedience of the order may lessen the value of his evidence and render him liable to prosecution for contempt …

I think that when Mr. Justice LeBel referred to the unexpected necessity of calling some person present in the court-room in rebuttal he must be taken to have been referring to a witness who the Crown had not originally intended to call and I think his remarks are particularly apt in dealing with the case which he had before him where there appears to have been some doubt as to whether the witness had been present in the court when the exclusion order was made.

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Mr. Justice Sinclair, in the course of giving approval to the practice followed in Alberta in criminal cases where a trial judge has ordered witnesses to be excluded from the court room, included the following rule:

If a witness nevertheless remains in court:

(a) he is not necessarily disqualified, although, in certain circumstances, the trial judge may exclude his evidence.

(b) the weight, if any, to be given to his evidence is for the jury, or for the judge, if there is no jury, to decide.

In the present case the learned trial judge expressly reserved to himself the question of the weight to be attached to the evidence of the last Crown witness, Fitzpatrick, and it appears to me that Mr. Justice Sinclair’s dissent rests upon the contention that a similar reservation should have been expressly stated in relation to the evidence of Corporal Murray and Detective Porfon. In my view, however, Mr. Justice Bowen’s failure to state orally that he would reserve to himself the question of the weight to be attached to the evidence of the last‑named witnesses cannot be construed as meaning that he was not giving the same consideration to their evidence as he did to that of Fitzpatrick and thus complying with the rule which Mr. Justice Sinclair himself recognizes. I am in fact of opinion that under the present circumstances, where the learned trial judge had expressly indicated his understanding of the rule in the case of Fitzpatrick, it should be assumed that he governed himself by the same considerations in evaluating the testimony of the other witnesses who had remained in court notwithstanding the order excluding them.

In light of the above, it will be seen that in my view no question of substantial wrong or miscarriage of justice can arise in this case.

For all these reasons I would dismiss this appeal.

Appeal dismissed, LASKIN C.J. and SPENCE J. dissenting.

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Solicitors for the appellant: Archibald, Edwards, Wallbridge, Wheatley & Sadownik, Edmonton.

Solicitor for the respondent: D.S. Thorson, Ottawa.