Barrette v. The Queen, [1977] 2 SCR 121

Supreme Court of Canada

Barrette v. The Queen, [1977] 2 S.C.R. 121

Date: 1976-01-30

Serge Barrette Appellant;

and

Her Majesty The Queen Respondent.

1975: November 26 and 27; 1976: January 30.

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

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Right to obtain the assistance of counsel—Application for adjournment—Judge’s discretion—Prejudice suffered by accused—Criminal Code, R.S.C. 1970, c.C-34, ss. 577(3), 613.

Charged with assaulting a peace officer, appellant was sentenced to imprisonment for one year. At his trial on April 6, 1973 the accused filed an application for adjournment because his counsel was not present. The judge denied the application on the grounds that the case dated back to the previous November and that counsel, who was occupied elsewhere, had not justified his absence. Appellant was therefore directed to proceed without the assistance of counsel. The majority of the Court of Appeal held that appellant, even though not represented by counsel, was given the opportunity to make a full defence and received a fair trial, and refused to order a new trial. Hence the appeal to this Court.

Held (Martland, Ritchie and de Grandpré JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Judson, Spence, Pigeon, Dickson and Beetz JJ.: However serious the fault of counsel, a fault which constituted prima facie contempt of court, there was nothing which authorized the trial judge to presume the connivance or complicity of the accused or without any evidence to lay the blame for the fault of counsel on him. The accused has the right “to make full …defence personally or by counsel” (s. 577(3) Cr. C). Although the decision on an adjournment necessary for the exercise of this right is in the judge’s discretion, he must exercise this discretion judicially. His decision may thus be reviewed on appeal if it is based on reasons which are not well founded in law. This right of review is especially wide when the consequence of the exercise of discretion was that someone was deprived of his rights, whether in criminal or in civil proceedings.

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As to the English judgments where the Court refused to quash the conviction of accused persons deprived of the services of counsel, it must not be overlooked that at that time in England the quashing of a verdict by the Court of Appeal meant the definitive’ acquittal of the accused. Hence the tendency to uphold a conviction, despite an error of law, if there was no miscarriage of justice.

It cannot be said in the case at bar that the accused suffered no prejudice by being forced to defend himself without enjoying the assistance of counsel, and without being able to summon as a witness a person having knowledge of the incident which led up to the conviction. While it is true that counsel for the prosecution treated the accused with consideration, it cannot be concluded that he had a fair trial. The accused cannot be considered manifestly guilty when the evidence for the defence is incomplete and imperfect as a result of the absence of counsel and of a, witness. The principle to be followed is as stated by the Court of Appeal of Quebec in Talbot v. R. ([1965] Que, Q.B. 159), namely, that if the offence was serious enough to warrant a sentence of six months imprisonment, it was serious enough to warrant that the appellant be allowed to be defended by a lawyer if he so wished.

Per Martland, Ritchie and de Grandpré JJ. dissenting: As it must be determined whether a miscarriage of justice was perpetrated by the trial judge in the exercise of his discretion, and his decision was upheld by the Court of Appeal, this Court must interfere only if it is clear that the judgment a quo is based on an error of principle. This rule is particularly important when the decision a quo presupposes an intimate knowledge of the local situation. The Court of Appeal of England, which has a much freer hand than this Court because it is a first court of appeal, has intervened in cases of this kind only when the fact that the accused was not represented by counsel might have constituted a denial of justice and have modified the result of the trial. The accused has not convinced this Court that the presence of his lawyer would have changed the outcome, indeed to the contrary. The right to the presence of counsel is a right which has limits, and the administration of justice requires that society be protected as well.

[Talbot v. R., [1965] Que. Q.B. 159, applied; Spataro v. R., [1974] S.C.R. 253; Mary Kingston (1948), 32 Cr. App. Rep. 183, distinguished; McKeown v. R., [4971] S.C.R. 446; Frank v. Alpert, [1971] S.C.R. 637; Basarsky v. Quinlan, [1972] S.C.R. 380; Ladouceur v. Howarth,: [1974] S.C.R. 1111; Whitco Chemical Co. v. Oakville, [1975] 1 S.C.R. 273, (1974), 43 D.L.R. (3d)

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413; General Foods v. Struthers, [1974] S.C.R. 98; Hamel v. Brunelle, [1977] 1 S.C.R. 147; Donald Winston Sowden (1964), 49 Cr, App. Rep. 32; Lacey and Wright (1966), 50 Cr. App. Rep. 205; R. v. Lane and Ross (1969), 6 C.R.N.S. 273, referred to]

APPEAL from a decision of the Court of Appeal of Quebec dismissing appellant’s application for a new trial. Appeal allowed and a new trial ordered, Martland, Ritchie and de Grandpré JJ. dissenting.

D. Pontbriand, for the appellant.

Claude Millette, for the respondent.

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

PIGEON J.—The report of the trial judge to the Court of Appeal reads as follows:

[TRANSLATION] The accused was charged, at Montreal, district of Montreal as follows:

On September 27, 1972, Serge BARRETTE unlawfully assaulted Officer Gilles Lafond, No. 5694, a peace officer engaged in the execution of his duty, thereby committing an indictable offence specified in section 246(2)(a) of the Criminal Code.

I was in court at 10:15, and the accused was present but his lawyer was not. He then told me that his counsel was Mr. Shoofey. I sent a peace officer to ask Mr. Shoofey when he would be ready to proceed. He replied that he wanted the case postponed. I refused to do so because too many cases are postponed when lawyers, without informing anyone, either the judge or the Crown attorney, absent themselves for whatever reason. This is a case which dated back to September 27, 1972, and the accused had been committed to trial on November 3, 1972.

Although the accused ordinarily has the right to have counsel present, he may not delay cases of his own accord. At the present time we have a delay of six months and I directed the accused Barrette to proceed nevertheless. The case itself was simple. It was a question of an assault by Barrette on a peace officer engaged in the execution of his duty. In my opinion, there was ample evidence to prove Barrette’s guilt, and I therefore found him guilty as charged. …

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The appeal is based on the dissenting opinion of Casey J. who, after quoting the second paragraph of the report and the following two sentences, said:

While the unexplained conduct of Appellant’s lawyer is to be deplored and while appropriate sanctions should be imposed or at least considered by the proper authorities, I see no justification for punishing Appellant for the sins of his lawyer or because the trial courts are running behind. These are matters over which Appellant had no control and they must not be allowed to deprive him of the full and fair trial to which he is entitled. By obliging him to go on without the benefit of counsel and by permitting, perhaps forcing, him to be examined at (p. 39) the trial judge did just that.

I agree with this view, Concerning the behaviour of the lawyer whose services the accused said he had retained, and who was not present when the case was called, it is certain that prima facie it constituted contempt of court (McKeown v. Regina[1]). It would nevertheless have been necessary to give him the opportunity to be heard before punishing him. However, even if he was really guilty of serious misconduct, there was nothing which authorized the trial judge to presume the connivance or complicity of the accused, as he seems to have done when, on the accused saying “I am taken by surprise”, he commented: “You knew from November 3 that the case would be heard today: that is being taken by surprise? Liar”.

There is nothing in the record which could legally support the presumption that counsel’s absence was a premeditated scheme in complicity with the accused. It was the first time the case was being called and there was nothing to justify such inference father than mere suspicion. The accused has the right “to make full … defence personally or by counsel” (s. 577(3) Cr. C). An adjournment necessary for the exercise of this right may be refused only for a reason based on established facts.

Here the reason given by the trial judge is legally unavailable against the accused. He cannot be held responsible for the fact that “too many

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cases are postponed when lawyers … absent themselves”. When the learned judge adds that the accused “may not delay cases of his own accord”, he is without any evidence laying the blame for the fault of counsel on the accused. The situation is quite different from that dealt with by this Court in Spataro v. Regina[2], where after the jury was sworn in, the accused without any valid reason claimed the right to dismiss his counsel, and thus obtain an adjournment.

It is true that a decision on an application for adjournment is in the judge’s discretion. It is, however, a judicial discretion so that his decision may be reviewed on appeal if it is based on reasons which are not well founded in law. This right of review is especially wide when the consequence of the exercise of discretion is that someone is deprived of his rights, whether in criminal or in civil proceedings. At a glance, I have found in the last few years no less than half a dozen judgments in civil proceedings where a decision depriving a litigant of an important right was reversed on account of insufficient reasons given. (Frank v. Alpert[3]; Basarsky v. Quinlan[4]; Ladouceur v. Howarth[5]; Whitco Chemical Co. v. Oakville[6]; General Foods v. Struthers[7]; Hamel v. Brunelle[8]). This being so in civil proceedings, there is all the more reason to so regard a discretionary decision in criminal proceedings, the effect whereof is to deprive the accused of his right to obtain the assistance of counsel and to summon witnesses in his defence. This principle is fully recognized in the English case law which was cited to us. Thus, in Mary Kingston[9], where the case proceeded in the absence of counsel retained by the accused, and the judge had refused the suggestion of Crown prosecutor that other counsel be invited to provide services immediately, the Court of Appeal quashed the conviction and said (at p. 188):

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it seems to us that that was tantamount to depriving the appellant of the right which she had of being defended by counsel.

As to the English judgments where the Court refused to quash the conviction of accused persons deprived of the services of counsel, it must not be overlooked that until quite recently in England the quashing of a verdict by the Court of Appeal meant the definitive acquittal of the accused, as was noted with regret in Mary Kingston. It is understandable that in such circumstances there was a tendency to apply as often as possible the provision which allows a conviction to be upheld, despite an error of law, if it is found that there has been no miscarriage of justice. This concern is apparent in Donald Winston Sowden[10]. The Court of first instance had refused to issue a second legal aid certificate after the first counsel appointed was authorized to withdraw. A conviction for fraud was quashed but a conviction for breach of the Road Traffic Act was upheld, on the grounds that this was a very simple case where the absence of counsel could not have caused any prejudice. As to the case of Lacey and Wright[11], of which the brief summary published in [1966] Crim. L.R. 387 was cited to this Court, it is necessary to read the complete text of the judgment rendered by Parker C.J. It will be seen that the Court did not, in the circumstances, find it necessary to consider whether it was certain that the accused had suffered no prejudice from the denial of legal aid, because it came to the conclusion that this discretionary denial was not reviewable.

In the case at bar, I cannot hold that the accused suffered no prejudice by being forced to defend himself without enjoying the assistance of counsel, and without being able to summon as a witness a person having knowledge of the incident which led up to the conviction. When the case against the accused is such that he cannot defend himself without testifying, he certainly is in great need of the assistance of counsel. When he denies in his testimony a significant part of what the witnesses for the prosecution relate against him, in

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this case a blow delivered to an officer, it appears to me impossible to find that the absence of a possible witness was definitely not prejudicial.

It is true that counsel for the prosecution treated the accused with consideration. He did not cross-examine him and did not put in evidence his record of previous convictions. Even if he thus did what was within his power to attenuate the consequences of the situation created by the erroneous decision of the trial judge, I cannot find that the accused, who was sentenced to a year in prison, had a fair trial. The following words of Addy J. in R. v. Lane and Ross[12] were cited to the Court (at p. 278):

There would also be a miscarriage of justice when a person who is evidently guilty is found not guilty, for, in the administration of justice, there is a duty not only to the accused but to society for the protection of which laws have been enacted.

Without embarking on a discussion of this statement, I cannot be satisfied that appellant here is manifestly guilty, when the evidence for the defence is incomplete and imperfect as a result of the absence of counsel and of a witness. It appears to me that in the case at bar, the principle to be followed is as stated by the Court of Appeal of Quebec in Talbot v. Regina[13]:

though our courts have not yet gone as far as to hold that the fact that the accused was not represented by an attorney, for reasons other than his own choice, means per se that he has not had the opportunity to make a full answer and defence, it appears that, if the offence was serious enough to warrant a sentence of six months imprisonment, it was serious enough to warrant that the appellant be allowed to be defended by a lawyer if he so wished.

For these reasons, I would reverse the decision of the Court of Appeal, quash the conviction against appellant and order a new trial.

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

DE GRANDPRE J. (dissenting)—Appellant was convicted by a judge sitting alone of having com-

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mitted an assault on the person of a peace officer, and applied to the Court of Appeal for a new trial, because he was denied an adjournment by the trial judge when his lawyer was occupied elsewhere. This appeal was dismissed, the two judges of the majority holding that “Barrette, even though not represented by counsel, was given the opportunity to make a full defence and he received a fair trial”. The dissenting judge, however, was of the opinion that Barrette had not received “the full and fair trial to which he is entitled”.

The basic facts are related in the report prepared by the trial judge, cited at length by Pigeon J. in his reasons. From this report and the other facts disclosed by the record, I wish to stress in particular:

(1) the date of the trial was fixed some five months in advance and until 10:15 on the morning of the trial, no one had mentioned a postponement;

(2) the defence had not summoned any witnesses;

(3) on the morning of the trial, as the record shows, the articling student of the lawyer chosen by the accused was present but he did not make any representation, although the By-laws of the Bar Association permitted him not only to present reasons in support of the application for a postponement but also, if need be, to conduct the defence;

(4) while the judge showed some impatience with the conduct of the accused’s lawyer, in other respects he directed the trial perfectly; thus he refused to allow the Crown to file photographs which were not provided by a qualified witness;

(5) the accused was able to cross-examine Crown witnesses;

(6) the accused testified and was not cross-examined;

(7) the only witness who apparently could have been heard in order to complete knowledge of the facts was the companion of the accused; at best, he could only have corroborated the latter;

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(8) Barrette’s record of previous convictions was not placed before the judge before the guilty verdict.

The question in this appeal, which of course can only raise a question of law, is as to whether a miscarriage of justice was perpetrated by the trial judge in the exercise of his discretion, when he refused to grant the application for postponement which Barrette made in the absence of his lawyer. That is the criterion of s. 613 of the Criminal Code which this Court upheld in two decisions which resemble the case at bar because they deal with the fundamental rights of the accused: Vescio v. The King[14], and Spataro v. The Queen[15], to which both parties have referred us.

The decision of the trial judge was weighed by the Court of Appeal and found to be in accordance with the relevant rules. In any matter where the judgment at first instance is upheld by the Court of Appeal, this Court must interfere only if it is clear that the judgment a quo is based on an error of principle. We must be particularly aware of this rule when the decision a quo has been pronounced in the exercise of a discretion which presupposes an intimate knowledge of the local situation. That such knowledge played a major role in the case at bar is evident from comparison of the decision a quo with Talbot v. The Queen[16], in both cases the Chief Justice and Owen J. were on the bench; here, they held that there was no miscarriage of justice, whereas in Talbot, they reached the opposite conclusion because the facts as a whole showed that the accused had not been able to present a full and complete defence.

There are no decisions of this Court exactly in point. Reference must be made to the case law of the Court of Appeal of England for examples which can enlighten us and enable the Court to decide whether the courts of Quebec have committed a miscarriage of justice which would permit us to intervene.

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In Mary Kingston[17], the accused’s lawyer was not present in court on the morning of the trial because he was erroneously under the impression that the case would not be called before the afternoon. The Crown itself suggested that the case be adjourned and when this suggestion was rejected, added that another lawyer present could represent the accused. This suggestion in its turn having been ignored, the accused was not represented during the trial, and she chose not to cross-examine and not to offer her own testimony. From the reasons of Humphreys J., speaking for the Court, I take this extract (at p. 187):

We have had a report in this case from the learned Recorder of Manchester, and it is quite clear from that report that the primary cause of this unfortunate situation was the failure of the counsel who had been briefed to do his duty to his client and the Court in attending when the case was in the list for trial. If he was unable for any good reason to attend, his duty, as everybody knows, was to see that some other member of the Bar held his brief and was in a position to represent the accused person. It was owing to the fact that that member of the Bar agreed with counsel for the prosecution that neither would go to the Court till 2 p.m. that all this trouble arose. In those circumstances, we think it right to say that in our opinion the Assistant-Recorder was perfectly justified in continuing with the trial of a person although she was unrepresented. The jury had to be considered. It would have been quite wrong for the Assistant-Recorder at 10.30 a.m. to waste the jury’s time and tell them there was nothing for them to do and that they must come back at 2 p.m. for the convenience of counsel. No application had been made to the Court to fix the case for 2 p.m. or postpone it in any way.

If the matter rested on the facts which I have stated so far, this Court would not have interfered, …

The only reason for the intervention of the Court of Appeal was the decision of the trial judge not to allow another lawyer to represent the accused.

Although Howes[18], belongs to the area of legislation on legal aid in England, it is of relevance here. Two paragraphs of the headnote describe the problem:

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The appellant, who was charged with a serious offence, applied to quarter sessions for legal aid, but was refused. At the trial he obtained a dock brief, but the counsel whom he had selected returned the brief without informing the court. At the opening of the trial the appellant, who was then unrepresented, owing to a misunderstanding, did not apply for a dock brief, but did so in the course of the trial. The Deputy-Chairman, who did not realise the actual position, refused the application, and the appellant conducted his own defence. The case against him was an extremely strong one.

Held that, as in the opinion of the court representation of the appellant by counsel could not have produced a different result, no miscarriage of justice had resulted despite the fact that the appellant was unrepresented, and the conviction must be affirmed.

Before the Court of Appeal, the accused submitted that the assistance of a lawyer would have had the result that:

(a) the police officer could have been subjected to cross-examination;

(b) the evidence would not have been presented in such a way as to suggest that he had a record of past convictions;

(c) the tone of the cross-examination to which he himself was subjected might have been different.

Lord Parker C.J. stated as follows the question now before this Court (at p. 179):

The court has considered all those matters. The real question at the end of the day is whether the court is completely satisfied that, notwithstanding the unfortunate course this case took in regard to the appellant not being represented, there has been no miscarriage of justice. If there is the slightest doubt in the matter, then the court ought to quash the conviction.

And the Court held (at p. 180):

…that there is no reason to interfere at all, that really the case was overwhelming, and that no counsel could have produced any different result.

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The same year, in Sowden[19], the Court of Appeal studied two convictions which had resulted in sentences of three years and six months respectively. It dismissed the first and upheld the second. On the first issue, the thinking of the Court is found in the following extract from the reasons of Lord Parker C.J., speaking for the Court (at p. 40):

That was the sort of issue, and one has only to state that to realise that no layman could adequately deal with questions of joint possession arising out of acting in concert and matters of that sort. The appellant really ought to have been legally represented if his case was to be put properly. Mr. Hazan has taken other points, that it might be that further evidence could have been called if he had been legally represented, and matters of that sort. It is sufficient to say that this court is not satisfied, that if he had been represented, the result must have been the same.

As to the second conviction, however, the Chief Justice, after having stressed that it was a simple matter, a “hopeless case”, concluded (at p. 41):

It does not seem to this court that any legal representation could conceivably have made any difference…

Two years later, in Lacey[20], the Court of Appeal refused to interfere with a conviction which had resulted in a sentence of three years. I do not wish to encumber these reasons by referring to the facts. I need only once again cite Lord Parker C.J., who asks the question which the Court must answer (at p. 210):

This court finds it quite unnecessary to consider the position that would have emerged if these appellants had had legal aid. No doubt, the course of the trial would have been different from what it was, but it is by no means clear that the result would not have been exactly the same. The court finds it unnecessary to go into that matter, for the simple reason that the first step in the argument must be to satisfy the court that the Deputy Chairman wrongly exercised his discretion by refusing legal aid.

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And the Court found that there was no reason to intervene in such a discretionary matter.

It is, therefore, with a great deal of hesitation that the Court of Appeal of England intervenes in cases such as that now before the Court. That Court is a first court of appeal, which has a much freer hand than we do. Furthermore, it must be emphasized that in each of these cases the trial took place a short time after criminal proceedings were instituted; in none of them did such a considerable length of time elapse as the period of five months in the case at bar.

The parties have also referred us to the decision of the Privy Council, Galos Hired v. The King[21]. I do not see how this decision applies. It suffices to point out that this was a matter of a sentence of death for murder, that the absence of the lawyer before the Court of Appeal was due to unforeseeable circumstances caused by the war, and that the accused had to present his own case even though he was not prepared to do so.

On the whole, I am of the opinion that the judgment a quo is not in error. The right to the presence of counsel is a right which has limits, and the administration of justice requires that society be protected as well. The accused has not convinced me that the presence of his lawyer would have changed the outcome, indeed to the contrary.

I would dismiss the appeal.

Appeal allowed, MARTLAND, RITCHIE and DE GRANDRÉ JJ. dissenting.

Solicitors for the appellant: Paquin & Pontbriand, Montreal.

Solicitor for the respondent: Gérard Deslandes, Montreal.