Batary v. Attorney General for Saskatchewan

Batary v. Attorney General for Saskatchewan
Collection
Supreme Court Judgments
Date
1965-04-06
Report
[1965] SCR 465
Judges
Taschereau, Robert; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett
On appeal from
Saskatchewan
Subjects
Constitutional law
Criminal law
Decision Content
Supreme Court of Canada
Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465
Date: 1965-04-06
George William Batary Appellant;
and
The Attorney General For Saskatchewan Et Al Respondents.
1964: December 7, 8, 9; 1965: April 6.
Present: Taschereau C.J. and Cartwright, Fauteux, Martland, Judson, Ritchie and Spence JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Criminal law—Coroner's inquest—Examination of person charged with murder at inquest into the death in question—Whether compellable witness—Coroners Act, R.S.S. 1953, c. 106, ss. 8, 8a, 15, 20, as amended by 1960 (Sask.), c. 14—Canada Evidence Act, R.S.C. 1952, c. 307, ss. 2, 4, 5—Canadian Bill of Rights, 1960 (Can.), c. 44, s. 2(d), (e)—Criminal Code, 1953-54 (Can.), c. 51, ss. 448, 488(3).
Constitutional law—Validity of legislation—Provincial legislation compelling person accused of murder to testify at coroner's inquest—Whether intra vires—Coroners Act, R.S.S. 1953, c. 106, ss. 8, 8a, 15, 20, as amended by 1960 (Sask.), c. 14—B.N.A. Act, 1867, ss. 91(27), 92(14).
On the same day that the coroner was holding an inquest into the death of one Thomas, the appellant and eight others were arrested and each of them was separately charged with the non-capital murder of Thomas. The coroner immediately closed the inquest. Subsequently, on the order of the Attorney-General, made pursuant to s. 8a of the Coroners Act, R.S.S. 1953, c. 106, as amended in 1960, the inquest was re-opened. On the fourth day of the inquest, counsel for the Crown stated his intention to call and examine as witnesses the appellant and the eight others who were present, they having been served with a subpoena. The coroner ruled that each of them was a compellable witness. The appellant applied for a writ of prohibition. The writ was refused by the trial judge, and his judgment was affirmed by the Court of Appeal. The appellant was granted leave to appeal to this Court.
Held (Fauteux J. dissenting): The appeal should be allowed.
Per Taschereau C.J. and Cartwright, Martland, Judson, Ritchie and Spence JJ.: 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 carefully 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.
Per Fauteux J., dissenting. The proposition that the competency and compellability of a person to be called as a witness must be determined with reference solely to the particular proceeding in which it is proposed to call the person as a witness is a rule that receives an application even in criminal trials where several persons, though jointly indicted, are proceeded against separately. In such cases, it is the settled law that neither one is regarded as an accused person or a party in the trial against the others. Under our law, there is no party, no accused in a coroner's inquest and it is only at the conclusion of the inquest that may arise the possibility of a person being alleged to have committed murder and then compelled, by a coroner's warrant, to appear in the criminal Courts. The rule nemo tenetur seipsum accusare has, through the years, been modified or trenched upon by statute and the privileges to which it gave rise have, in certain cases, been conditioned or abrogated. The word "charged" in s. 4(1) of the Canada Evidence Act makes it clear that the privilege mentioned in that section is conferred to no other than a person charged with an offence, to whom it becomes available on no occasion and time other than when the prosecution against him for that offence is actually proceeded with in the criminal Courts. The provisions of s. 5(1) and (2) of the Canada Evidence Act are unqualified and of general application. Subject only to some exceptions which do not apply at a coroner's inquest, no one—other than a person charged of an offence, on the occasion and at the time at which he is actually proceeded against for that offence—is excused on the ground that the answers he might give may tend to incriminate him. If a co-accused, of which the prosecution is not actually proceeded with in the criminal Courts, is a compellable and competent witness when called to testify in the prosecution of another co-accused, a fortiori a person, whether charged or not with an offence is a compellable and competent witness at a coroner's inquest where no one is regarded by law as an accused.
The appellant could not be excused and was bound by s. 5(1) of the Canada Evidence Act, but was entitled to the protection of subs. 2. He was also protected by s. 2(d) of the Canadian Bill of Rights.
Droit criminel—Enquête du coroner—Interrogatoire d'une personne accusée de meurtre à l'enquête relativement au décès en question—Témoin est-il contraignable—Coroner's Act, S.R.S. 1953, c. 106, arts. 8, 8a, 15, 20, tels qu'amendés par 1960 (Sask.), c. 14—Loi sur la preuve au Canada, S.R.C. 1952, c. 307, arts. 2, 4, 5—Loi sur la déclaration canadienne des droits, 1960 (Can.), c. 44, s. 2(d), (e)—Code criminel, 1953-54, (Can.), c. 51, arts. 448, 488(3). Droit constitutionnel—Validité de la législation—Statut provincial contraignant une personne accusée de meurtre de rendre témoignage à l'enquête du coroner—Statut est-il intra vires—Coroner's Act, S.R.S. 1953, c. 106, arts. 8, 8a, 15, 20, tels qu'amendés par 1960 (Sask), c. 14—Loi de l'Amérique britannique du Nord, 1867, arts. 91(27), 92(14).
Le jour même où le coroner tenait une enquête relativement au décès d'un nommé Thomas, l'appelant et huit autres personnes étaient mis sous arrêt et chacun d'eux était accusé séparément du meurtre non qualifié de Thomas. Le coroner mit fin immédiatement à l'enquête. Subséquemment, le procureur général ordonna, en vertu de l'art. 8a du Coroner's Act, S.R.S. 1953, c. 106, tel qu'amendé en 1960, la réouverture de l'enquête. Advenant le quatrième jour de l'enquête, le procureur de la Couronne déclara son intention d'assigner et d'interroger comme témoins l'appelant et les huit autres personnes qui étaient alors présents, ayant reçu signification d'un subpoena. Le coroner jugea que chacun d'eux était un témoin contraignable. L'appelant fit une requête pour l'obtention d'un bref de prohibition. Ce bref fut refusé par le juge au procès et son jugement fut confirmé par la Cour d'Appel. L'appelant a obtenu permission d'en appeler devant cette Cour.
Arrêt: L'appel doit être maintenu, le Juge Fauteux étant dissident.
Le Juge en Chef Taschereau et les Juges Cartwright, Martland, Judson, Ritchie et Spence: Le droit criminel en force dans la Saskatchewan est celui de l'Angleterre tel qu'il existait le 15 juillet 1870, excepté tel qu'amendé, varié, modifié ou affecté par le Code criminel ou tout autre statut du parlement du Canada. Sous le régime de ce droit tel qu'il existait à cette date, une personne accusée de meurtre et attendant son procès ne pouvait pas être contrainte de témoigner à l'enquête relativement au décès de la personne dont elle était accusée d'avoir causé la mort. Aucun changement n'a été fait à ce droit par l'effet combiné des arts. 2, 4(1) et 5 de la Loi sur la preuve au Canada et des arts. 448 et 488(3) du Code criminel. Ces articles de la Loi sur la preuve au Canada n'ont pas l'effet de rendre un accusé un témoin contraignable à l'enquête du coroner. Il faudrait des mots précis pour apporter un changement aussi complet au droit tel qu'il existait en 1870. Ce serait une étrange inconsistance si la loi qui protège soigneusement un accusé contre la contrainte de faire une déclaration à l'enquête préliminaire, permettait que cette enquête soit ajournée pour que la poursuite ait l'opportunité d'amener l'accusé devant un coroner et de la soumettre contre sa volonté à un interrogatoire et contre-interrogatoire sur sa prétendue culpabilité. En l'absence de mots précis dans une loi du parlement ou autre autorité irrésistible, ceci n'est pas la loi. La cause de R. v. Barnes, 36 C.C.C. 40, non suivie.
En promulguant l'art. 15 du Coroner's Act dans son état présent, la législature avait l'intention de changer la loi et de rendre une personne accusée de meurtre contraignable à rendre témoignage à l'enquête relativement au décès de sa prétendue victime. Une telle législation empiète sur la règle exprimée dans la maxime nemo tenetur seipsum accusare. Toute législation dont le but est de faire un tel changement dans la loi ou d'abroger ou de modifier les règles existantes qui protègent une personne accusée d'un crime contre la contrainte de témoigner contre elle-même est une législation concernant le droit criminel, y compris la procédure en matières criminelles, et conséquemment de l'autorité législative exclusive du parlement en vertu de l'art. 91(27) de la Loi de l'Amérique britannique du Nord. Le Juge Fauteux, dissident: La proposition que la compétence et la contraignabilité d'une personne d'être assignée comme témoin doivent être déterminées en référant seulement à l'instance particulière dans laquelle on se propose d'assigner la personne comme témoin, est une règle qui reçoit son application même dans un procès criminel où plusieurs personnes, quoique accusées conjointement, subissent leur procès séparément. Dans de tels cas, il est de règle bien arrêtée qu'aucune de ces personnes n'est considérée comme une personne accusée ou une partie au procès des autres. Sous le régime de notre droit, il n'y a aucune partie, aucun accusé à l'enquête du coroner, et c'est seulement à la conclusion de l'enquête que peut survenir la possibilité qu'une personne soit accusée d'avoir commis un meurtre et alors contrainte, par mandat du coroner, de se présenter devant les Cours criminelles. Avec les années, la règle nemo tenetur seipsum accusare a été modifiée ou empiétée par les statuts, et les privilèges qui en découlent ont en certains cas été conditionnés ou abrogés. L'expression « accusé » dans l'art. 4(1) de la Loi sur la preuve au Canada démontre clairement que le privilège mentionné dans cet article est conféré à nulle autre personne que la personne accusée d'un crime, à qui il devient accessible à nulle autre occasion et temps que lorsqu'elle est actuellement poursuivie pour ce crime devant les Cours criminelles. Les dispositions de l'art. 5(1) et (2) de la Loi sur la preuve au Canada sont absolues et d'application générale. Sujet seulement à quelques exceptions qui n'ont pas d'application à l'enquête du coroner, aucune personne—autre qu'une personne accusée d'un crime, à l'occasion et au temps où elle est actuellement poursuivie pour ce crime—est exemptée pour le motif que les réponses qu'elle pourrait donner pourraient tendre à l'incriminer. Si un co-accusé, qui n'est pas actuellement poursuivi devant les Cours criminelles, est un témoin contraignable et compétent lorsqu'il est assigné à témoigner au procès de son co-accusé, a fortiori une personne, qu'elle soit accusée ou non d'un crime est un témoin contraignable et compétent à l'enquête du coroner où personne n'est considéré par la loi comme étant un accusé.
L'appelant ne pouvait pas être exempté et était lié par l'art. 5(1) de la Loi sur la preuve au Canada, mais avait droit à la protection de l'alinéa (2). Il était aussi protégé par l'art. 2(d) de la Loi sur la déclaration canadienne des droits.
APPEL d'un jugement de la Cour d'Appel de Saskatchewan[1] , rejetant un appel du jugement du Juge Bence qui avait refusé un bref de prohibition. Appel maintenu, le Juge Fauteux étant dissident.
Appeal from a judgment of the Court of Appeal for Saskatchewan[2], dismissing an appeal from a judgment of Bence J. who had refused a writ of prohibition. Appeal allowed, Fauteux J. dissenting.
David W. Scott, for the appellant.
Serge Kujawa, for the Attorney General for Saskatchewan T. D. MacDonald, Q.C., for the Attorney General for Canada.
Gérald LeDain, Q.C., for the Attorney General of Quebec.
F. W. Callaghan, for the Attorney General for Ontario.
W. Henkel, for the Attorney General for Alberta.
The judgment of Taschereau C. J. and Cartwright, Martland, Judson, Ritchie and Spence JJ. was delivered by
CARTWRIGHT J.:—This appeal is brought, pursuant to leave granted by this Court, from a judgment of the Court of Appeal for Saskatchewan[3] dismissing an appeal from a judgment of Bence C.J.Q.B. whereby the appellant's application for an order or writ of prohibition was dismissed.
The facts are not in dispute.
One Allan Thomas died at Glaslyn, Saskatchewan, on May 12, 1963. On the same day the Coroner, J. E. Nunn, commenced the holding of an inquest into the death. Later on the same day the appellant and eight other men were arrested and each of them was separately charged with the non-capital murder of Thomas. The Coroner then discharged the jury and closed the inquest as he was required to do by the terms of s.8(a) (2) of The Coroners Act, R.S.S. 1953, c. 106, as amended by Statutes of Saskatchewan, 1960, c. 14. Subsequently, on a date not given in the record, the Attorney General for Saskatchewan directed, pursuant to the last mentioned sub-section, that the inquest be reopened. On May 18, 1963, the appellant and the eight others charged were granted bail. June 12, 1963, was set for the preliminary hearing of the charges against the appellant and the other eight persons also charged. The Coroner fixed the same date for the commencement of the reopened inquest. On June 12, 1963, at the request of the Attorney General, the preliminary hearings were adjourned until after the conclusion of the inquest.
The inquest opened on June 12, 1963, and continued on June 13 and June 14. During this time twenty-two witnesses were called and examined. The appellant and each of the other persons charged with the murder of Thomas had been served with a Coroner's subpoena requiring attendance at the inquest and all were present. On June 14, counsel appointed by the Attorney General to act for the Crown at the inquest stated that he intended to call the appellant and each of the other accused persons as witnesses at the inquest. Counsel for all of the accused objected that neither the Coroner nor the Crown could compel a person already charged with the murder of Thomas, whose death was being investigated, to be sworn as a witness at the inquest. After hearing argument the Coroner ruled that each of the accused was a compellable witness at the inquest and must give evidence. In his brief reasons the Coroner stated that he was bound to rule as he did by the Saskatchewan legislation. His reasons do not indicate whether the constitutional validity of that legislation had been questioned in argument before him.
Following this ruling, at the request of counsel for the appellant, the Coroner adjourned the inquest sine die to permit the bringing of an application for prohibition. While this application was pending Mr. Nunn, the Coroner, died and the proceedings have been continued with the Attorney General for Saskatchewan substituted as respondent.
The application for prohibition came in due couse before Bence C.J.Q.B. and was dismissed. There is nothing in the material filed in support of the application or in the reasons of the learned Chief Justice to indicate that the validity of any provision of The Coroners Act was questioned.
The learned Chief Justice followed the decision of the Court of Appeal for Ontario in Rex v. Barnes[4] in which it was held, affirming the decision of Orde J., that Barnes who was charged with manslaughter in the death of one Rossiter was a compellable witness at an inquest being held to inquire into Rossiter's death. In the Court of Appeal Meredith C.J.C.P. expressed the opinion that while Barnes was compellable to be sworn as a witness at the inquest it would not be lawful to examine him in any way regarding the charge pending against him; this view was not shared by any other member of the Court of Appeal or by Orde J.
Having quoted ss. 8(a) and 15 of The Coroners Act and s. 5 of The Canada Evidence Act, Bence, C.J. Q.B. said in part:
The provisions of The Coroners Act, which I have quoted, and Section 5 of the Canada Evidence Act seem to me to be quite clear. The applicant herein is called as a witness to give evidence as to his knowledge of what took place. Authority to call him is contained in The Coroners Act and the Canada Evidence Act stipulates that he shall not be excused.
In my view there should be no such limitations on the questions put to him as were suggested by Meredith, C.J., in the Barnes case, which I have quoted.
The appellant appealed to the Court of Appeal; paragraph 2 of the notice of appeal reads as follows:
The Coroner's Court is a Criminal Court of Record and Sections 8a and 15 of The Coroners Act, R.S.S. 1953, as amended by chapter 14 of the Statutes of Saskatchewan, 1960, on which the said judgment is wholly, or partly, based, were and are ultra vires of the Province, being enactments dealing with Criminal Law and Procedure.
The unanimous judgment of the Court of Appeal[5] was delivered by Culliton C. J. S. holding (i) that the impugned sections of The Coroners Act are intra vires of the legislature as being in relation to the administration of justice in the province rather than in relation to the criminal law or the procedure in criminal matters, (ii) that, even if the impugned sections were held to be invalid, the combined effect of ss. 2 and 5(1) of the Canada Evidence Act would render the appellant a compellable witness at the inquest; and (iii) that the provisions of the Canadian Bill of Rights were not contravened, because the appellant, although compelled to testify at the inquest, would be entitled to the protection afforded by s. 5(2) of the Canada Evidence Act. In the result the appeal was dismissed.
It will be convenient to consider first what the position of the appellant, when called upon to take the witness stand at the inquest in Saskatchewan, would be under the existing law apart from the provisions of the impugned sections of The Coroners Act.
By the combined effect of s. 7, of the Criminal Code, 1954, 2-3- Eliz. II, c. 51, s. 16 of the Saskatchewan Act, Statutes of Canada, 1905, 4-5- Ed. VII, c. 42 and s. 11 of the Northwest Territories Act, R.S.C. 1886, c. 50, 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.
In 1870 a person accused of crime and the spouse of such person were incompetent to testify at trial either for or against the accused. This incompetency was done away with as to some offences by s. 216 of The Criminal Procedure Act, R.S.C. 1886, c. 174, but as to most offences, including that of murder, it was preserved by s. 217 of that Act and continued until the coming into force of The Canada Evidence Act, 1893, 56 Vict., c. 31. That Act came into force on July 1, 1893, and on the same day The Criminal Procedure Act was repealed.
Section 4 of The Canada Evidence Act as originally enacted read as follows:
4. Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness, whether the person so charged is charged solely or jointly with any other person. Provided, however, that no husband shall be competent to disclose any communication made to him by his wife during their marriage, and no wife shall be competent to disclose any communication made to her by her husband during their marriage.
2. The failure of the person charged, or of the wife or husband of such person, to testify, shall not be made the subject of comment by the judge or by counsel for the prosecution in addressing the jury.
In Gosselin v. The King[6] , the majority of the Court expressed the opinion that the effect of this section, read with s. 5, was to render an accused and his spouse not merely competent but compellable. We need not pause to inquire whether this opinion was well-founded as the Act was amended by 1906, 6 Ed. VII, c. 10, s. 1, by the insertion of the words "for the defence" after the word "witness".
The present form of s. 4(1) is as follows:
4 (1) Every person charged with an offence, and, except as in this section otherwise provided, the wife or husband, as the case may be, of the person so charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person.
Section 5 is as follows:
5. (1) No witness shall be excused from answering any question upon the ground that the answer to such question 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.
(2) Where with respect to any question a witness objects to answer upon the ground that his answer 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, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering such question, then although the witness is by reason of this Act, or by reason of such provincial Act, compelled to answer, the answer so given shall not be used or receivable in evidence against him in any criminal trial, or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of such evidence. It is now clear that a person who is being tried on a criminal charge is a competent witness if he decides to testify but that he cannot be compelled by the prosecution to enter the witness box. If he decides to testify he is subject to cross-examination and compellable to answer any relevant questions put to him on cross-examination although his answers may tend to establish his guilt of the charge on which he is being tried.
It seems equally clear that where two or more persons are. either jointly or separately, indicted for one offence and are tried separately one of those indicted who is not on trial is a compellable witness, for either the prosecution or the defence, at the trial of any of his co-accused. On this point it is sufficient to refer to the case of Re Regan[7] where the history and reasons of the rule are fully covered in the arguments of counsel and in the judgments.
In the case at bar, it is clear that had the preliminary hearing of the charge against the appellant proceeded he could not have been compelled to testify, and that it would have been the duty of the presiding justice to warn him, in the terms prescribed by s. 454(1) of the Criminal Code, that he was not bound to say anything.
We have not been referred to any case in England in which an accused awaiting trial on a charge of the murder of the person whose death was under investigation was compelled to give evidence at the inquest. It is unlikely that such a case would arise after the passing of s. 20 of the Coroners (Amendment) Act 1926, 16 and 17 Geo. V, c. 59; but if the power to compel such an accused person to testify existed previously it would seem strange that it was never exercised. In Ex parte Cook[8] , an application was made to the Court of Queen's Bench at the instance of the Coroner who was conducting an inquest on the body of one Hannah Moore for a writ to bring before the Coroner and jury one Cook who was in custody in Newgate awaiting trial on a charge of having wilfully murdered her. His presence was stated to be required for two purposes, (i) to give evidence as to the deceased's state of mind, it being alleged that Cook and the deceased had entered into a suicide pact and that Cook was the only person who knew her and (ii) so that the witnesses called at the inquest could identify Cook. The writ was refused. In commenting on this case it is suggested in Jervis on Coroners, 4th ed., (1880), at page 214 that an order of the nature sought "will generally be made if the prisoner is not the party under accusation; or, if he is accused or suspected, then when he is desirous of making a statement, and perhaps also when his presence is requisite for the purpose of identification".
In the course of the argument Patteson J, at page 658, asked counsel the question:—"Have you an instance where a writ has been granted to bring up a prisoner before a Coroner?" and the answer was "None has been found".
Earlier in the argument, Coleridge J. had said at page 657:
I think it is usual, on a motion of this nature, to state the readiness of the party to come: at all events when he is to come as a witness.
Williams J. said at page 660:
No case of inconvenience has existed in the Coroner's: Court for centuries, by reason of no such writ having been granted.
In each of the cases of The King v. Scorey[9] and Wakley v. Cooke[10] , referred to by counsel for the respondent, the Coroner was criticized for having refused to hear evidence tendered on behalf of a person suspected of being criminally responsible for the death of the person which was under investigation. In the latter case at page 518, Alderson B. said:
Then comes the question whether the other part of the direction was correct. The direction had reference to the practice which prevailed in the examination of persons before inquests held in Middlesex, in refusing to examine parties whose conduct might afterwards become the subject of a criminal inquiry. I quite agree with what my Brother Parke has said upon the matter. I hope that the practice will be discontinued, for it is highly improper, and that persons will be permitted to make any statements they may wish, when they have any material information to communicate. The refusal to accept a person's testimony casts a gross imputation upon him. A person who comes before a coroner cannot be considered as being a party accused, and he is not so until after a verdict has been found. Such a practice is monstrous and most harassing, and I hope it will be discontinued for the future, and that people will be allowed to make statements. They are not bound to criminate themselves, and ought to be told so at the time.
There is nothing in the judgments in either of these cases to suggest that a person charged with the murder of a person into whose death an inquest was being held could be compelled to testify at such inquest. In Stephen's History of the Criminal Law of England, (1883), vol. 1, at pp. 440 and 441, the learned author after pointing out that soon after the revolution of 1688 the practice of questioning the prisoner died out continues at page 441:
…the statutes of Philip and Mary already referred to, repealed and re-enacted in 1826 by 7 Geo. 4, c. 64 authorized committing magistrates to "take the examination" of the person suspected. This examination (unless it was taken upon oath, which was regarded as moral compulsion) might be given in evidence against the prisoner.
This state of the law continued till the year 1848, when by the 11 and 12 Vic. c. 42, the present system was established, under which the prisoner is asked whether he wishes to say anything, and is warned that if he chooses to do so what he says will be taken down and may be given in evidence on his trial. The result of the whole is that as matters stand the prisoner is absolutely protected against all judicial questioning before or at the trial, and that, on the other hand, he and his wife are prevented from giving evidence in their own behalf. He is often permitted, however, to make any statement he pleases at the very end of the trial, when it is difficult for any one to test the correctness of what is said.
On a consideration of the cases and works of text-writers referred to above and of numerous others which were referred to in the full and helpful arguments of counsel I have reached the conclusion that under the law of England as of July 15, 1870, 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 and it is necessary to consider whether this state of the law has been altered by any Act of the Parliament of Canada.
It has been submitted that an alteration has been made 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.
Sections 4(1) and 5 of the Canada Evidence Act have already been quoted. Section 2 is as follows:
2. This Part applies to all criminal proceedings, and to all civil proceedings and other matters whatsoever respecting which the Parliament of Canada has jurisdiction in this behalf.
Sections 448 and 488(3) of the Criminal Code are as follows:
448. (1) Where a person is alleged, by a verdict upon a coroner's inquisition, to have committed murder or 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.
488. (3) …
No person shall be tried upon a coroner's inquisition.
The effect of the sections of the Canada Evidence Act, referred to above, was to give to a person charged with crime the right to be a witness in his own defence, it was not to enable the prosecution to call him as a witness. The choice as to whether or not he would give evidence was given to the accused alone and if he chose not to testify comment by the judge or by counsel for the prosecution was forbidden. None of this is challenged; but it is said that the sections have the effect of rendering the accused a compellable witness at the inquest into the death which he is charged with having caused by his criminal act.
If I am right in the view, which I have already expressed, that in 1870 the accused would not have been a compellable witness at such an inquest, it would, in my opinion, require clear words to bring about so complete a change in the law. Section 5 does not purport to say who shall or shall not be compelled to take the witness stand. It deals with the rights and obligations of a witness who is already on the stand. It does not protect him from the use against him of the answers he makes in the proceeding in which he makes them but only in "proceedings thereafter taking place". Let it be supposed that the only evidence given before the coroner which in any way implicated the accused was that of the accused himself; such evidence would warrant the jury in bringing in a verdict alleging that the accused had committed murder or manslaughter. It is true that such a verdict would not constitute an adjudication that the accused was guilty but equally the decision of the justice presiding at the preliminary hearing that the accused should be committed for trial is not such an adjudication. It would be a strange inconsistency if the law which carefully 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 I am unable to agree that that is the state of the law. The conclusion which I have reached necessarily involves the view that Rex v. Barnes, supra, was wrongly decided and ought not to be followed.
All that I have so far said is as to the applicable law apart from the provisions of the impugned sections of The Coroners Act. These are as follows:
8a. (1) Where a person has been charged with a criminal offence arising out of a death, an inquest touching the death shall be held only upon the direction of the Attorney General.
(2) Where during an inquest any person is charged with a criminal offence arising out of the death, the coroner shall discharge the jury and close the inquest, and shall then proceed as if he had determined that an inquest was unnecessary, provided that the Attorney General may direct that the inquest be reopened.
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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.
(4) A person giving evidence at the inquest may be represented by counsel who may examine and cross-examine witnesses called at the inquest and may on behalf of his client take the objection mentioned in subsection (2).
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20. Counsel appointed by the Attorney General to act for the Crown, at an inquest may attend thereat and may examine or cross-examine the witnesses called, and the coroner shall summon any witness required on behalf of the Crown.
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 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[11] ) 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.
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.
I would allow the appeal, set aside the judgments in the courts below and direct that an order issue prohibiting any coroner in the Province of Saskatchewan from requiring the appellant to attend as a witness or to give evidence at any inquest or at the continuation of any inquest into the death of Allan Thomas. I would make no order as to costs.
FAUTEUX J. (dissenting):—This is an appeal, with leave of this Court, from a unanimous judgment of the Court of Appeal of Saskatchewan[12] dismissing the appeal of the appellant from the judgment of Bence C.J. Q.B. denying appellant's application for a Writ of Prohibition against Coroner J. E. Nunn of Saskatchewan.
The material facts may be summarized. One Allan Thomas died at Glaslyn, Saskatchewan, on May 12, 1963 and, on the same day, Coroner Nunn opened an inquest into his death. Later in the day, appellant and eight other persons were arrested and separately charged with the non-capital murder of Thomas. The Coroner then discharged the jury and closed his inquest, as he was required by s. 8a(2) of the Coroners Act, R.S.S. 1953, c. 106, as amended by c. 14 of the 1960 Statutes of Saskatchewan. The following day, May 13, each of the accused was separately arraigned and remanded in custody to await Preliminary Inquiry which, contrary to s. 451(b) of the Criminal Code, was then set at a time exceeding eight clear days, to wit, to June 12, 1963. On May 18