Kissick v. The King

Kissick v. The King
Collection
Supreme Court Judgments
Date
1952-01-08
Report
[1952] 1 SCR 343
Judges
Kerwin, Patrick; Taschereau, Robert; Estey, James Wilfred; Locke, Charles Holland; Fauteux, Joseph Honoré Gérald
On appeal from
Manitoba
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Kissick v. The King, [1952] 1 S.C.R. 343
Date: 1952-01-08
John Kissick, Peter Kissick, William Kissick, Stella (Sally) Smallwood Appellants;
and
His Majesty The King Respondent.
1951: December 3, 4; 1952: January 8.
Present: Kerwin, Taschereau, Estey, Locke and Fauteux JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA.
Criminal law—Evidence—Conspiracy to sell, etc. narcotic drugs—Certificates of analysts only evidence of narcotics—Whether certificates admissible—No objection by defence—Testimony of analysts heard before Court of Appeal—Whether Court has that power and whether it could then affirm conviction—Opium and Narcotic Drug Act, 1929, S. of C. 1929, c. 49, s. 18—Criminal Code, ss. 1014, 1021.
The appellants were found by a jury to be guilty on three charges laid under s. 573 of the Criminal Code of conspiracy to possess, to sell and to transmit narcotic drugs in violation of the Opium and Narcotic Drug Act, 1929, (S. of C. 1929, c. 49). The only proof tendered at the trial that the substance was a narcotic drug, consisted of certificates of two analysts. The analysts were not heard as witnesses, although one of them was offered for cross-examination. Counsel for the accused did not at any time object to the admission of the certificates nor to the trial judge's reference to them in his charge as being "conclusive evidence" of the substance of the narcotic drug. On appeal, the accused contended that this evidence, although admissible under s. 18 of the Opium and Narcotic Drug Act, 1929, on a charge under that Act, was not admissible where the charge was one of conspiracy under the Code. Thereupon, the Crown asked for, and obtained, leave under s. 1021 of the Code to call the analysts at the hearing of the appeal; their testimony was heard in the absence of the accused, who declined to attend but who were represented by counsel who cross-examined the witnesses on behalf of the accused. The Court of Appeal for Manitoba affirmed the convictions.
By leave granted by this Court, the accused appealed on two questions of law: (a) whether the Court of Appeal was empowered under ss. 1014 and 1021(1) (b) of the Criminal Code to allow the Crown to produce before that Court the oral evidence given by the analysts, and (b) whether the Court of Appeal was empowered on such evidence, taken in conjunction with that given at the trial, to affirm the convictions.
Held: The appeals should be dismissed and the convictions affirmed since the Court of Appeal was justified in allowing the taking of further evidence and in affirming the convictions (Kerwin J., dissenting in part, would have ordered a new trial).
Per Kerwin, Estey and Locke JJ.: The certificates were not admissible in evidence (Desrochers v. The King, 69 C.C.C 322, overruled). (Taschereau J. expressing no opinion on that question, and Fauteux J. contra). Per Taschereau, Estey and Locke JJ.: In the circumstances of this case, having considered that it was necessary or expedient in the interests of justice to admit further evidence on a non-controversial issue, the Court of Appeal did not infringe any principle of law governing the exercise of the power to hear further evidence given to it by s. 1021 (1) (b) of the Code, whose provisions are available to a respondent as well as to an appellant.
Since there is no restriction as to the effect to be given by the Court of Appeal to the further evidence in disposing of the appeal under s. 1014 of the Code, and since the evidence heard before the Court of Appeal was in its nature conclusive and did not reveal new facts that might influence a jury to come to a different conclusion, the Court of appeal followed the proper course in confirming the convictions.
Per Fauteux J.: The additional evidence, introduced in appeal, was not essential to legally support the verdict since the certificates were admissible evidence of the facts therein stated, as on a true interpretation of s. 18 of the Opium and Narcotic Drug Act the prosecution in the present case was a prosecution under that Act. (Simcovitch v. The King [1935] S.C.R. 26 and Robinson v. The King [1951] S.C.R. 522 referred to). But in any event, although the failure to object to inadmissible evidence is not always fatal, since the defence manifested a positive intention to accept the certificates as sufficient evidence of the facts therein stated or else opted to attempt to preserve a possible ground of appeal, the accused cannot now raise this point; and, as there was no substantial wrong or miscarriage of justice, the appeal should be dismissed.
Per Kerwin J. (dissenting in part) : The Court of Appeal was empowered by s. 1021 (1) (b) of the Code to direct that further evidence be taken to support the convictions of the appellants, but it was not empowered on the evidence of the analysts taken before it and on the evidence at the trial to affirm the convictions because it would thereby be usurping the functions of the jury; it is impossible to say what view the jury might have taken if they had heard the analysts and hence it cannot be said that no substantial wrong or miscarriage of justice had occurred within s. 1014(2) of the Code.
APPEALS from the judgment of the Court of Appeal for Manitoba 1 affirming the appellants' convictions by a jury on charges of conspiracy to sell, etc. narcotic drugs in violation of the Opium and Narcotic Drug Act, 1929.
Harry Walsh and C. N. Kushner for the appellants. The certificates of analysis were wholly inadmissible in evidence, they were not proof of a drug or drugs within the meaning of the Opium and Narcotic Drug Act, 1929, and the jury should not have been directed that these certificates constituted such proof and that the jury was to take the contents of the said certificates as conclusive evidence of the facts stated therein, since s. 18 of the Opium and Narcotic Drug Act, 1929, is not applicable to a charge of conspiracy under s. 573 of the Criminal Code. It is clear from the wording of s. 18 of the Act, that the departure from the ordinary rules of evidence requiring oral testimony, is only authorized in a prosecution under that Act. It became therefore vitally necessary for the prosecution to prove the existence of narcotic drugs within the meaning of the Act. When the certificates are eliminated there is no proof anywhere of the existence of a drug. The jury therefore should have been directed that there was a complete lack of proof of the existence of any drug within the meaning of the Act.
The Court of Appeal having come to the conclusion that the jury's verdict was unsupported by proper evidence, and that the certificates had been improperly admitted in evidence, should have allowed the appeal under s. 1014(1) (a) of the Code (Govin v. The King 2 and The King v. Drummond 3).
For an interpretation of what is meant by the words "having regard to the evidence" in s. 1014(1) (a) of the Code, the case of R. v. Dashwood 4 is referred to.
The Court of Appeal had no power to order the examination of the analysts before that Court. S. 1021 (1) (b) of the Code must be interpreted as referring only to the hearing of "newly-discovered evidence" or "new evidence" and not to evidence that was known and that could have been produced at the trial as was the case here. Furthermore, s. 1021 (1) (b) applies only to evidence that is brought forward on behalf of an appellant in order to set aside the verdict of a jury, but not to the evidence that is tendered by a respondent in order to supply gaps in a case or to support or bolster up a verdict. All the decisions both in England and Canada point up the fact that such evidence will not be received unless it was such that could not have been adduced at the trial and the power to hear fresh evidence is exercised with great caution. S. 1021 was first passed in Canada in 1923 and is practically the same as s. 9 of the English Criminal Appeal Act, 1907. A resume of the English decisions indicates that the instances in which evidence is admitted before the Court of Appeal are very limited and that, without exception, so far as can be found, it is always at the instance of the appellant in the case that new evidence is admitted, if at all. (McGrath v. R. 5, Thorne v. R. 6, Hyman Kurasch v. R. 7, Warren v. R. 8, Knox v. R. 9, Hullett v. R. 10, Allaway v. R. 11, William Ward v. R. 12, Mason v. R. 13, Weisz v. R. 14, Starkie v. R. 15, R. v. Mortimer 16, R. v. Hewitt 17, R. v. Dutt 18, R. v. McGerlymchie 19, R. v. Livock 20 and R. v. Robinson 21). It would be usurping the function of the jury altogether, if every time a certain essential bit of evidence was not proved properly and by evidence properly admissible, by the prosecution, it was permitted to the Crown respondent to adduce that evidence before the Court of Appeal in order to have the appeal dismissed.
A resume of the Canadian decisions also indicates that the application can only be made by an appellant who is seeking to upset the verdict of the jury or trial Court and cannot be invoked by a respondent in order to fill a gap in the evidence presented to the jury. Neither the case of R. v. Feeney 22 nor R. v. Buckle 23 support the course that was adopted by the Court of Appeal in hearing the analysts. The case of Berret v. Sainsbury 24 is useful to show what is done in civil matters where the Court has the same power as given by s. 1021.
Even if the Court of Appeal did have the power to hear the evidence of the analysts, such evidence could only be used for the purpose of determining whether there should be a new trial or an acquittal, and could not be used for the purpose of taking same in conjunction with the evidence given at the trial, and then used to dismiss the appeal. The Court of Appeal should have allowed the appeal since there was no proof adduced of any drugs within the meaning of the Act, and then either quash the convictions or direct a new trial (R. v. Drummond 25). S. 1014(2) of the Code cannot effect the result of a dismissal of the appeal, since the onus is on the respondent to show that the balance of the evidence, apart from the impugned certificates, would certainly or inevitably result in a conviction of the appellants. Without the certificates there cannot have been any possibility of conviction of any of the appellants since there was then no proof of the existence of any drugs within the meaning of the Act. (Northey v. The King 26).
A. M. Shinbane, K.C., for the respondent. The certificates were admissible in evidence (Jacobs v. R. 27 and Desrochers v. The King 28.
The Court of Appeal was empowered to allow the respondent to produce before that Court the oral evidence given by the analysts. S. 1021(1) (b) of the Code gives it that power. This section corresponds substantially to s. 9 of the English Criminal Appeal Act, 1907. But the Court of Criminal Appeal has no jurisdiction to direct a new trial and this limitation of power in some measure at least accounts for the reluctance of that Court to allow evidence to be called which might have been heard at the trial. (R. v. Mason 29). Almost all the reported cases deal with "fresh" or "new" evidence. Here the evidence was merely supplementary and confirmatory. Inasmuch as the form in which their evidence was tendered was to be considered faulty, the analysts were called merely to confirm the accuracy of their analyses, the introduction of which as evidence and the reference thereto were not at any time objected to by the defence at any stage of the trial. But under s. 1021, the evidence may be of a character other than "new" or "fresh".
Although the omission by the defence to object does not prevent the defence from raising the objection in the Court of Appeal, nevertheless that omission was a circumstance properly to be considered by the Court. It indicated that the defence either shared in the mistake of the prosecution and the Court, or believed that the accused was not substantially prejudiced by the erroneous form in which the proof of drugs was put before the jury. More so in this case when the notice of appeal arguing that the certificates were not admissible was filed the day after the verdict was rendered and on the same day that sentence was passed. (R. v. Stirland 30 and R. v. Cutter 31).
The power and the practice of the Court of Appeal in respect of fresh or new evidence not tendered at the trial may be summarized thus: (a) The Court has power to admit it; (b) It is a power which must always be exercised with great care; (c) The Court will not lay down any definition of what will constitute exceptional or special circumstances; (d) The Court will allow evidence to be given which might have been given at the trial, if it is satisfied that the omission was due to a misunderstanding, inadvertence or mistake. (R. v. Robinson 32, R. v. Weisz 33, R. v. Hullett 34, R. v. Warren 35, R. v. Knox 36 and R. v. Collins 37.
Furthermore, that section is a remedial provision and there is no ambiguity in its language. (R. v. Robinson et al 38 and R. v. McTemple 39.
The Court of Appeal was empowered on the evidence of the analysts taken in conjunction with that given at the trial, to confirm the convictions, as there was then such overwhelming evidence of guilt that no reasonable jury on a proper direction could or would have failed to convict the appellants, and there was therefore no miscarriage of justice. The converse of the principle in R. v. Gach 40 is applicable to the present case, and the Court of Appeal was authorized to dismiss the appeal by ss. 1014, 1021 of the Code, and by the provisions of the Court of Appeal Act of Manitoba. Because fresh evidence or further or additional evidence is admitted on appeal, it does not follow that the case must be sent back for a new trial (R. v. Feeney 41 and R. v. Buckle 42.
The accused had a trial by jury, because, apart from anything else, there was ample evidence to support the verdict as found out by the Court of Appeal, and therefore there was no substantial wrong or miscarriage of justice. Kerwin J. (dissenting in part):—The four appellants were found by a jury to be guilty on three counts of an indictment charging conspiracies to commit indictable offences, i.e., to unlawfully sell drugs, to unlawfully possess drugs, and to unlawfully cause drugs to be taken or carried from one place to another in Canada—all within the meaning of the Opium and Narcotic Drug Act, 1929, as amended, without first having obtained a licence. Convictions were entered and sentences imposed. From these convictions they appealed to the Court of Appeal for Manitoba (1) and during the hearing of their appeals the Crown applied to be allowed to produce before the Court of Appeal, in support of the convictions, the evidence of two analysts who had certified that certain material sold, possessed, or taken or carried, was a narcotic drug within the meaning of the Opium and Narcotic Drug Act. The certificates had been put in evidence as if the prosecutions had been under that Act instead, as was the fact, for conspiracies under section 573 of the Criminal Code. The evidence of the sale, possession, taking or carrying was given as part of the evidence upon which the charges of conspiracy were based.
The Court of Appeal 43 granted the Crown's application and the evidence of the analysts was taken. Upon that evidence and the evidence at the trial, the Court of Appeal dismissed the appeals of the accused. By leave granted under subsection 1 of section 1025 of the Code as enacted by section 42 of chapter 39 of the 1948 Statutes, the accused appeal to this Court on the following questions of law:
(1) On the appellants' appeal from their conviction was the Court of Appeal for Manitoba empowered under sections 1014 and 1021 (1) (b) of the Criminal Code or otherwise to allow the respondent to produce before that Court the oral evidence actually given?
(2) If so, was that Court empowered, on such evidence taken in conjunction with that given at the trial, to affirm the conviction, or was it authorized merely to order a new trial? As to the first point, section 1021 (1) (b) of the Code is in the following terms:
1021. For the purposes of an appeal under this Part, the court of appeal may if it thinks it necessary or expedient in the interest of justice
. . .
(b) if it thinks fit, order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court of appeal, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in manner provided by rules of court before any judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose, and allow the admission of any deposition so taken as evidence before the court of appeal; and
exercise in relation to the proceedings of the court of appeal any other powers which may for the time being be exercised by the court of appeal on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the court of appeal.
It is contended that by the words "For the purposes of an appeal under this Part", Parliament never intended to give the Crown, on an accused's appeal, the right to ask, or to give the Court the right to permit, that evidence be heard in support of the conviction of the appellant, particularly when the trial had been with a jury. Emphasis is placed upon section 1014 of the Code which provides that on the hearing of an appeal against conviction the Court of Appeal shall allow the appeal if it is of opinion
(a) that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) that the judgment of the trial court should be set aside on the ground of a wrong decision of any question of law;
It is said that the convictions cannot be supported on the evidence because without the certificates there was no evidence that the material in question was a drug within the meaning of the Opium and Narcotic Drug Act. Testimony was given at the trial by which, the Crown contends, the jury would have been entitled to find that it was such a drug. The Court of Appeal evidently felt that proposition to be doubtful because, if it were sound, there would have been no occasion to order the taking of the evidence of the analysts. Presuming in the meantime that this is so, the question is squarely raised as to the power of the Court of Appeal to make the order. We are told that no Canadian case can be found where evidence was taken before the Court of Appeal to support a conviction. Reliance is placed upon the decision of the Ontario Court of Appeal in Rex v. Drummond 44, where it was held that on a charge of perjury committed at the trial of an indictment, such trial and the indictment, verdict and judgment therein must be proved as matters of record and this not having been done, the conviction was set aside. It is to be noted that that part of section 1021 quoted above was first enacted by section 9 of chapter 41 of the Statutes of 1923, so that at the time of the Drummond decision there was no power in the Court of Appeal to receive further evidence. In another case, which was not referred to, Rex v. Ivall 45, the Ontario Court of Appeal ordered a new trial on a charge that the accused removed a child under the age of fourteen years from the custody of the Children's Aid Society where, on the first trial, the child's age had not been proved. No application was made for leave to produce the evidence before the Court of Appeal.
The 1923 Act was taken from the Criminal Appeal Act of England, 1907, and no decisions have been found in England in which the Crown was given leave to do as was done here. In Rex v. Robinson 46, an application was made by the Crown to introduce evidence that arose after the conviction and therefore could not have been called at the trial, but this was on the basis that such evidence would have a material bearing on the accused's application for leave to appeal from a conviction in view of the fact that one of the grounds stated in the application for leave was that the verdict was against the weight of the evidence and in those circumstances one question that would have to be considered was whether there had been any substantial miscarriage of justice. The evidence admitted was a letter written by the accused in which he admitted the act which it was alleged constituted murder.
The case does show that further evidence will be admitted although there it was of something that occurred after the trial. However, the ground of the decision was the provision in the Criminal Appeal Act that the Court of Criminal Appeal may exercise in relation to the proceedings in the Court any other powers which might for the time being be exercised by the Court of Appeal in appeals on civil matters. Considering the similar provisions of section 1021, it appears to me that they are sufficient to empower the Court of Appeal to direct that further evidence be taken.
On the argument, the attention of counsel was directed to the decision of the Court of King's Bench (Appeal Side) of the Province of Quebec in Desrochers v. The King 47. That decision was not referred to before the Manitoba Court of Appeal 48 or on the application for leave to appeal to this Court. There, the accused were charged under section 573 of the Criminal Code with having conspired to commit an indictable offence under The Excise Act, 1934 By section 113 of that Act: "In every prosecution under this Act, the certificate of analysis … shall be accepted as prima facie evidence"; and in the French version: Dans toute poursuite en vertu de la présente loi, le certificat d'analyse … est accepté comme prima facie. It was held that a certificate was admissible by virtue of that section in the prosecution of the charge of conspiracy under the Code.
Section 18 of the Opium and Narcotic Drug Act, 1929, enacts: "In any prosecution under this Act a certificate as to the analysis of any drug or drugs … shall be prima facie evidence." The French version reads: "Dans toute poursuite instituée sous le régime de la présente loi, un certificat relatif à l'analyse d'une drogue ou de drogues, … constitue une preuve prima facie". For present purposes, this section, in either version, may be taken to bear the same meaning as section 113 of The Excise Act, 1934, in either version. The present proceeding not being a prosecution under the Opium and Narcotic Drug Act, section 18 thereof is inapplicable and the decision in Desrochers on that point should be overruled.
Section 28 of the Interpretation Act, R.S.C. 1927, chapter 1, reads as follows:
28. Every Act shall be read and construed as if any offence for which the offender may be
(a) prosecuted by indictment, howsoever such offence may be therein described or referred to, were described or referred to as an indictable offence; (b) punishable on summary conviction, were described or referred to as an offence ; and all provisions of the Criminal Code relating to indictable offences, or offences, as the case may be, shall apply to every such offence.
That section was considered by this Court in Simcovitch v. The King 49 in conjunction with section 69 of the Criminal Code by which anyone is a party to and guilty of an offence who "(d) counsels or procures any person to commit the offence." It was held that one who counselled a bankrupt to commit an offence specified in section 191 of the Bankruptcy Act was by the combined operation of section 28 of the Interpretation Act and section 69 of the Code guilty of an offence under section 191 of the Bankruptcy Act although that section, by its terms, referred only to a person having been a bankrupt or in respect of whose estate a receiving order has been made, or who had made an authorized assignment under the Bankruptcy Act. That decision can have no application here because, within the terms of section 28 of the Interpretation Act, there is no provision of the Criminal Code which it is suggested might be made applicable. On the contrary, the suggestion is that on a prosecution under the Code a certificate of analysis is to be taken as prima facie evidence merely because section 18 of the Opium and Narcotic Drug Act states that in any prosecution under that Act a certificate is to be so treated. With respect I can find no justification for reading the enactment in that manner.
It was argued that there was sufficient evidence without the certificates but it must be borne in mind that having admitted them, the trial judge instructed the jury that they were conclusive. I am not now dealing with a situation where, on a charge of conspiring to commit an indictable offence under the Opium and Narcotic Drug Act, the evidence of such conspiracy is based upon something other than the actual commission of an offence itself. What is relied upon in the present case to prove the conspiracy are specific acts, and the circumstances that witnesses testified at the trial that the article dealt with was heroin and that the accused, or some of them, so designated it to those witnesses, are not sufficient. If articles be sold which were mere substitutes for a narcotic and not within the class of specified drugs, there would be no offence. On the other hand, the gist of an offence under section 573 of the Code is the conspiracy itself, and in a proper case a jury might find that a conspiracy existed to sell a specified narcotic without first having obtained a licence.
In my opinion the second question raises a question of law and the Court of Appeal was not empowered on the evidence of the analysts taken before it and on the evidence at the trial to affirm the conviction because it would thereby usurp the functions of the jury. It is not a matter of interfering with a discretion exercised by the Court of Appeal since it is impossible to say what view a jury might take if they had the analysts before them and hence it cannot be said that no substantial wrong or miscarriage had occurred within section 1014(2) of the Code.
The appeal should be allowed and a new trial directed.
Taschereau J.:—The appellants were jointly charged on four counts of conspiracy to violate the Opium and Narcotic Drug Act, and were found guilty on three.
At trial, the respondent filed certificates of analysis to establish that the drugs which were possessed and sold by the appellants, were heroine, a drug within the meaning of the Act, but the analysts themselves were not heard. Section 18 of the Act is to the effect that "in any prosecution under the Act", such certificates signed by a Dominion analyst, constitute prima facie evidence of the facts therein stated.
Before the Court of Appeal 50, the appellants submitted that, not having been prosecuted under the Act, but for conspiracy under the Criminal Code, the certificates were illegal evidence, and that the analysts should have been called. The Court of Appeal 51 obviously agreed with this contention, for at the request of the respondent, it received the evidence of the analysts and unanimously confirmed the conviction. Leave to appeal to this Court was granted by Mr. Justice Kerwin on the two following questions of law:
(1) Was the Court of Appeal empowered under section 1014 and 1021 (1) and (b) of the Code or otherwise, to allow the respondent to produce before that Court the oral evidence actually given? (2) If so, was the Court empowered on such evidence taken in conjunction with that given at the trial, to affirm the conviction or was it authorized merely to order a new trial?
If a prosecution for conspiracy to possess and sell heroine, is a prosecution under the Opium and Narcotic Drug Act, the conviction was valid, and the Court of Appeal did not need to hear new evidence; but in view of the conclusion which I have reached, I do not think it necessary to determine this question.
Section 1021 (b) of the Criminal Code is as follows:
1021. For the purposes of an appeal under this Part, the court of appeal may if it thinks it necessary or expedient in the interest of justice.
(b) if it thinks fit, order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court of appeal, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in manner provided by rules of court before any judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose, and allow the admission of any deposition so taken as evidence before the court of appeal;
As to the power of the Court of Appeal to hear fresh evidence, I have no doubt, if any meaning is to be given to section 1021(b), which states that "for the purposes of the appeal", witnesses may be examined before the court. It is obviously in order to enable the court to properly determine the case, that such a power is conferred, and these plain words used by the legislator must be given effect to. Otherwise, the section would be nugatory, and Parliament's expressed intentions would be defeated.
This section corresponds substantially to section 9(b) of the English Criminal Appeal Act 1907. It has been held in England that this authority to hear new evidence must be used with "great care" and in "exceptional circumstances" only, and I think that the rule here is the same. (Rex v. Mason) 52 ; (Rex v. Rowland) 53. A too liberal exercise of this power would undoubtedly conflict with the economy of our criminal law, would in certain instances give the Crown a second chance to make a case which it has failed to make at trial, and could possibly also invest a court of appeal with powers exclusively within the province of the jury. But in the case at bar, in view of the special circumstances, I think that the Court of Appeal was right in granting the application made by the Crown to hear the analysts. The accuracy of the facts contained in the certificates were not an issue before the jury, and all parties seemed to agree that the drug had been properly proved. Although the failure of counsel for the defence to object to illegal evidence, cannot as a rule be considered as fatal, it is important to note in the present case, that he declined to cross-examine one of the analysts who was present at the trial, and offered by the Crown. The Court of Appeal merely corrected an error upon which the jury acted, and as Dysart J. said, it has put the case in exactly the position in which the jury believed it to be, when they convicted the accused.
Under section 1014, Cr. Code, the Court of Appeal could confirm or order a new trial, and I think that it followed the proper course in adopting the former. The fresh evidence was in its nature conclusive and did not reveal new facts that might influence a jury in coming to a conclusion.
I would dismiss the appeals.
Estey J.:—The appellants, whose conviction for conspiracy contrary to s. 573 of the Criminal Code was affirmed by the Court of Appeal for Manitoba 54, have, by way of a further appeal, been granted leave, under s. 1025 of the Criminal Code as amended in 1948 (S. of C. 1948, c. 39, s. 42), to submit two questions of law to this Court:
"(1) On the Appellants' appeal from their conviction was the Court of Appeal for Manitoba empowered under sections 1014 and 1021 (1) (b) of the Criminal Code or otherwise to allow the Respondent to produce before that Court the oral evidence actually given?
(2) If so, was that Court empowered, on such evidence taken in conjunction with that given at the trial, to affirm the conviction, or was it authorized merely to order a new trial?"
These appellants were charged upon four counts of conspiracy to unlawfully (a) sell, (b) possess, (c) cause to be taken and (d) distribute, drugs within the meaning of The Opium and Narcotic Drug Act, 1929, and thereby to have committed an offence contrary to the provisions of s. 573 of the Criminal Code. At their trial before a judge and jury they were found guilty of (a), (b) and (c).
The Crown established the conspiracy by adducing evidence of specific instances of selling, possessing and causing to be taken, drugs contrary to The Opium and Narcotic Drug Act. As proof of the fact that the commodity dealt with in each instance was a narcotic drug, ten certificates of analysis were placed in evidence without objection. Counsel for the Crown, in tendering these certificates, was under the impression that they were admissible by virtue of the provisions of s. 18 of The Opium and Narcotic Drug Act. This impression was concurred in by the learned trial judge. S. 18 reads as follows:
18. In any prosecution under this Act a certificate as to the analysis of any drug or drugs signed or purporting to be signed by a Dominion or provincial analyst shall be prima facie evidence of the facts stated in such certificate and conclusive evidence of the authority of the person giving or making the same without any proof of appointment or signature.
The learned judges in the Court of Appeal held that the provisions of s. 18 had no application to a trial for conspiracy under s. 573 of the Criminal Code and that the ten certificates prepared by the analysts were improperly received. The learned judges, however, were of the opinion that this was an appropriate case in which to hear viva voce evidence of the analysts under the authority of s. 1021 (1) (b) of the Criminal Code:
1021. For the purposes of an appeal under this Part, the court of appeal may if it thinks it necessary or expedient in the interest of justice.
. . .
(b) if it thinks fit, order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court of appeal, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in manner provided by rules of court before any judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose, and allow the admission of any deposition so taken as evidence before the court of appeal; …
and exercise in relation to the proceedings of the court of appeal any other powers which may for the time being be exercised by the court of appeal on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the court of appeal. Messrs. Jones and Blanchard, who had prepared these certificates, were accordingly called as witnesses before the Court of Appeal and there gave evidence to the same effect as set out in their respective certificates.
S. 1021 (1) (b) was enacted by Parliament in 1923 and is to the same effect as s. 9(b) of the Court of Criminal Appeal Act in Great Britain (1907, 7 Edw. VII, c. 23). In the Court of Criminal Appeal the corresponding English s. 9(b) was commented upon as follows:
Undoubtedly the Legislature has armed this Court with the widest possible powers for the purposes of investigation, and in a proper case this Court would not refuse to make use of the powers which are contained in these paragraphs of s. 9.
Rex v. Thorne 55.
Parliament has indicated what is "a proper case" by expressly providing that the wide powers under s. 1021 (1) (b) shall be exercised only where the court of appeal "thinks it necessary or expedient in the interest of justice." Under this provision it has been repeatedly held, as stated by the learned author of Archibald's Cr. Pl., Ev. & P., 32nd Ed., p. 309, that
The Court will only act upon this power in very special circumstances.
which, as pointed out by the Lord Chief Justice in Rex v. Weisz 56, "they had been careful not to define." A similar view is expressed in Rex v. MacTemple 57. It, therefore, appears that if a court of appeal has concluded that the circumstances are exceptional and directed the reception of the evidence its decision should not be disturbed, unless, in arriving at its conclusion, it has acted contrary to principle.
The learned judges of the Court of Appeal deemed the circumstances here sufficiently special that, in the interest of justice, the evidence of the analysts should be heard. It is an unusual case. Apart from a statutory provision, such evidence as we are here concerned with can only be received viva voce. S. 18 is enacted as part of, and is applicable only "in any prosecution under," The Opium and Narcotic Drug Act. Such a provision has no application to a prosecution for an offence under s. 573 of the Criminal Code. In so far as Desrochers v. The King 58, may be contrary to this view, it must be overruled. S. 28 of the Interpretation Act (R.S.C. 1927, c. 1), which makes certain provisions of the Criminal Code applicable to other statutes, does not make the provisions of those other statutes applicable to prosecutions under the Criminal Code and, therefore, does not assist the prosecution upon this appeal.
We were informed that these certificates were placed in evidence at the preliminary without objection. Then, when counsel for the Crown, prior to the trial, decided that it was unnecessary for him to call all the witnesses who could depose to the relevant facts, he prepared a list of these, together with a summary of their evidence, and submitted it to counsel for the appellant, with a request that if he desired any of these witnesses to be called for the purpose of cross-examination that he so advise him. This list included Jones, one of the analysts, who had prepared some of these certificates. Counsel for the appellant replied that he desired that only one Porter, whose evidence was not upon any question relative to the analysis of the commodities, be alone produced for cross-examination. All of this was explained before the presiding judge and appears in the record of the trial, in part, as follows:
THE COURT: Your answer is, you don't wish him to call any except Porter?
Mr. KUSHNER: I don't wish any witness called for the purpose of cross-examination, other than Inspector Porter.
The failure of counsel for the defence to object to the reception of inadmissible evidence does not, in general, constitute a bar to the objection thereto in an appellate court, nor would it alone justify a court of appeal in exercising its powers under s. 1021 (1) (b). It is, however, an important circumstance in this case because it corroborates what was evidenced throughout the trial that the main contentions of the defence were not directed to whether the substances were narcotic drugs within the meaning of The Opium and Narcotic Drug Act. In Stirland v. Director of Public Prosecutions 59, Viscount Simon stated:
… the court must be careful in allowing an appeal on the ground of reception of inadmissible evidence when no objection has been made at the trial by the prisoner's counsel. The failure of counsel to object may have a bearing on the question whether the accused was really prejudiced. Even if the certificates had been admissible under s. 18, they were only prima facie evidence of their contents and if counsel for the appellant had intended to raise any question as to their correctness or the weight of the statements contained therein he would have, upon receipt of the request from counsel for the Crown, asked that at least Jones be called for cross-examination.
The certificates, though inadmissible, were received at and accepted throughout the trial as evidence of the facts the