R. v. E. (A.W.)

R. v. E. (A.W.)
Collection
Supreme Court Judgments
Date
1993-09-09
Report
[1993] 3 SCR 155
Case number
22810
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Cory, Peter deCarteret; Iacobucci, Frank; Major, John C.
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 22810
Decision Content
R. v. E. (A.W.), [1993] 3 S.C.R. 155
Her Majesty The Queen Appellant
v.
A.W.E. Respondent
Indexed as: R. v. E. (A.W.)
File No.: 22810.
1993: January 29; 1993: September 9.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Cory, Iacobucci and Major JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Appeal ‑‑ Procedure ‑‑ Trial judge's report to Court of Appeal ‑‑ Jury convicting accused of sexual offence against young boy ‑‑ Report to Court of Appeal submitted by trial judge on his own initiative indicating that had he been sitting alone he would not have convicted accused ‑‑ Report taken into account by Court of Appeal in finding verdict unsafe ‑‑ Whether report should have been considered by Court of Appeal ‑‑ Whether verdict unsafe ‑‑ Whether trial judge's charge adequate ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 682(1) .
Criminal law ‑‑ Appeal ‑‑ Procedure ‑‑ Trial judge's report to Court of Appeal ‑‑ Scope of report ‑‑ Circumstances in which Court of Appeal should request report from trial judge ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 682(1) .
Criminal law ‑‑ Sexual offence -- Young complainant ‑‑ Credibility -- Charge to jury ‑‑ Trial judge bringing to jury's attention problems they should consider in assessing young complainant's testimony ‑‑ Accused convicted of sexual offence largely on basis of complainant's testimony ‑‑ Whether trial judge's instructions to jury adequate -- Whether trial judge properly exercised his discretion in excluding comment on the evidence from his charge.
The accused was found guilty by a jury of engaging in anal intercourse with his step‑son. The complainant was 13 years old at the time of the trial and the only Crown witness on the material points. He was permitted to give sworn testimony after the appropriate inquiry by the trial judge. He testified that, from the age of five, he was subjected to repeated and violent sexual acts by the accused. The accused testified on his own behalf and denied the allegations. Credibility was the crucial issue and the jury believed the complainant over the accused. He appealed his conviction. The judgment of the Court of Appeal was still reserved, when the trial judge wrote, on his own initiative, a letter to the appeal panel expressing his reservations about the verdict. He indicated that he would not have found the accused guilty on the evidence at trial as he was of the view that such a verdict would have been unsafe. In light of the letter, the court received further submissions from counsel. In its judgment, the court held that it was entitled to factor the letter into its decision‑making, as the communication did not amount to reasons, or supplementary reasons, for judgment. The court found that the evidence of the complainant seemed difficult to believe as true, both on the face of the transcripts and in the eyes of the trial judge as conveyed through the trial judge's report, and concluded that the verdict was unsafe and ordered a new trial. The offence of "anal intercourse" did not exist at the time of the commission of the offence, though there was an offence of "buggery". The court held that this defect did not go to the heart of the charge, and gave leave to the Crown to amend the indictment to allege "buggery" instead of "anal intercourse". However, on the chance that some factual, legal or procedural remedy might be open to the accused based on this discrepancy, the court ruled that this was an independent ground for quashing the conviction and ordering a new trial.
Held (Lamer C.J. and Sopinka and Major JJ. dissenting): The appeal should be allowed.
Per La Forest, L'Heureux‑Dubé, Cory and Iacobucci JJ.: A Court of Appeal should not routinely request a report from a trial judge. Section 682(1) of the Code originated at a time when there was seldom a transcript made of the trial proceedings. Transcripts are now routinely available to the Courts of Appeal and it is on the basis of that record that their decisions should be made. It is only in those rare situations where something occurred which is not reflected in the record and upon which opposing counsel cannot agree that a report from a trial judge might be requested. A desire for comments with regard to the demeanour of a witness does not justify a request for a report. The assessment of the demeanour of a witness falls within the exclusive domain of the jurors as the triers of the facts. Here, the unsolicited report of the trial judge was not authorized by s. 682(1) and should not have been considered by the Court of Appeal. It pertained exclusively to evidence already in the record of the trial which was before the Court of Appeal.
The verdict of the jury must stand. In light of the evidence presented at trial, it is highly unlikely that the Court of Appeal would have concluded that the guilty verdict was unreasonable under s. 686(1)(a) of the Code were it not for the trial judge's comments contained in his report. The jury could have based its verdict upon the testimony of the complainant alone. The medical evidence was also consistent with the sexual abuse described by the complainant. There was thus clear evidence to support the verdict.
Further, the trial judge's charge did not contain any errors that would necessitate a new trial. The trial judge's directions adequately brought to the attention of the jury the problems that they should consider in assessing the testimony of a young complainant. Taken in the context of the entire charge, they provide proper instructions to the jury and there was no duty or need for the trial judge to make other comments upon the evidence. The charge was not only fair but also favourable to the accused. The trial judge's report must not be considered when reviewing the charge. To find misdirection upon reading the charge and the trial judge's report together would be to direct a new trial based upon the very report that should not have been considered.
Per Lamer C.J. and Major J. (dissenting): The Court of Appeal erred in finding that the trial judge's report was authorized under s. 682(1) of the Code. The section makes no provision for a report of a trial judge as was produced in this case. No request was made by the Court of Appeal for the report and the trial judge's comments pertained exclusively to evidence already in the record of the trial before the Court of Appeal. A report submitted on the trial judge's initiative, which does nothing more than elaborate on the evidence in the record in support of a conviction, is invalid under s. 682(1) . In any event, even if the report were valid, the trial judge's comments exceeded the bounds of what properly could be received and relied upon by the Court of Appeal in a s. 682(1) report. Where a trial judge takes issue with the verdict of the jury, such a report cannot be taken into consideration by the Court of Appeal. This would amount to nothing less than inviting the trial judge to enter the appellate arena. In the context of a jury trial, the jury's version of the findings of fact must prevail over that of the trial judge. The comments contemplated within a trial judge's report are comments relating to material issues not apparent on the face of the transcript, such as the demeanour of witnesses, the comportment of counsel, the behaviour of the jury and the general atmosphere of a trial. A Court of Appeal may, however, request a report on any matter pertaining to a trial which, in its view, requires elaboration. Here, the intent of the trial judge in submitting the report was to express his view that the verdict of the jury was unsafe. The s. 682(1) report was not designed to provide trial judges with an open forum for impugning the findings of the jury and, assuming that the Court of Appeal had requested the trial judge's report, the contents of that report would amount to an improper interference by the trial judge in the appellate process, and should not have been relied upon.
The Court of Appeal erred in ordering a new trial on the ground that the verdict was unsafe. It is highly unlikely that the court would have concluded that the guilty verdict was unreasonable under s. 686(1)(a) of the Code were it not for the comments contained in the report. There was evidence in the testimony of the complainant and the other witnesses upon which the jury could have reasonably based a verdict of guilty. A physical examination of the complainant revealed findings consistent with the sexual abuse described by him. Given that the trial judge was satisfied that the complainant was of sufficient maturity to be sworn, and that his testimony was given in detail without significant internal inconsistencies, there was not a sufficient basis apart from the trial judge's report for the Court of Appeal to have found the verdict of the jury unsafe.
The proper forum for a trial judge to express his reservations regarding the credibility of the witnesses in the context of a jury trial is in the charge to the jury. Although the trial judge could not in his remarks to the jury go so far as to assert that he disbelieved the complainant's testimony, or that he believed the testimony of the defence witnesses, he could at least have suggested that, in his view, the jury should proceed cautiously in assessing the complainant's testimony. The ability of the jury to arrive at a just verdict is enhanced where such comment is offered, so long as the trial judge emphasizes to the jury that they remain at liberty to disagree with his view. Where, as in this case, the ultimate verdict rests largely on the complainant's credibility, added prudence on the trial judge's part is necessary to ensure that the primacy of the jury as the trier of fact is not compromised. Thus, while the charge to the jury appears sound on its own, when it is read together with the subsequent trial judge's report accepted by the Court of Appeal it is clear that the trial judge misdirected himself in his charge to the jury. This is an error of law which cannot be ignored. This error cannot be cured by application of the proviso in s. 686(1)(b)(iii) of the Code. Had the trial judge not misdirected himself with respect to the ambit of his charge to the jury, given the centrality of credibility to the verdict, it is not possible to say that a properly instructed jury would necessarily have convicted.
Finally, the Court of Appeal also erred in ordering a new trial on the basis of a difference between the laws at the time of trial and the laws at the time of the offence. The trial judge was correct in accepting the complainant's uncorroborated evidence based on the law in force at the time of trial and there is no factual, legal, or procedural argument triggered by the old offence or by the change of offence which would affect the outcome of a new trial. The Court of Appeal's order granting the Crown leave to amend the indictment should the Crown proceed with a new trial should be affirmed.
Per Sopinka J. (dissenting): The trial judge's report was not authorized by s. 682(1) of the Code. Such a report should be made only in the circumstances described by Cory J. However, the report's having been made and received discloses an error of law which might have affected the verdict. This cannot be ignored. When considered in the absence of the trial judge's views as to the credibility of the complainant, the trial judge's comments in the charge on the problems that the jury should consider in assessing the complainant's evidence were fair. Nonetheless, but for an error of law, the trial judge would have added a comment with respect to the reliability of this evidence. For the reason given by Lamer C.J., the trial judge was entitled to make such a comment which would have enured to the benefit of the accused. Absent the error in law, the verdict would not necessarily have been the same.
Cases Cited
By Cory J.
Referred to: R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Barrow, [1987] 2 S.C.R. 694; Vézina v. The Queen, [1986] 1 S.C.R. 2; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Sherratt, [1991] 1 S.C.R. 509; Mezzo v. The Queen, [1986] 1 S.C.R. 802; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. B. (G.), [1990] 2 S.C.R. 30.
By Lamer C.J. (dissenting)
R. v. Bowles (1985), 21 C.C.C. (3d) 540; R. v. Hawke (1975), 22 C.C.C. (2d) 19; R. v. MacEwen (1978), 39 C.C.C. (2d) 523; R. v. Chapman (1958), 29 C.R. 168; R. v. Pressley (1948), 7 C.R. 342; R. v. James (1945), 83 C.C.C. 369; R. v. Schrager (1911), 6 Cr. App. R. 253; R. v. Hart (1914), 10 Cr. App. R. 176; R. v. Boyd (1953), 105 C.C.C. 146; R. v. Gould (1958), 122 C.C.C. 253; R. v. Harris (1953), 105 C.C.C. 301; Baron v. The King, [1930] S.C.R. 194; R. v. Mathieu, [1967] 3 C.C.C. 237; Ungaro v. The King, [1950] S.C.R. 430; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Sherratt, [1991] 1 S.C.R. 509; Mezzo v. The Queen, [1986] 1 S.C.R. 802; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. B. (G.), [1990] 2 S.C.R. 30; R. v. Buxbaum (1989), 70 C.R. (3d) 20; R. v. R. (D.J.) (1991), 7 C.R. (4th) 300; Steinberg v. The King, [1931] S.C.R. 421; R. v. B. (F.F.), [1993] 1 S.C.R. 697; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v. Barbeau, [1992] 2 S.C.R. 845.
Statutes and Regulations Cited
Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, ss. 3, 11, 15.
Criminal Code, R.S.C. 1927, c. 36, s. 1020.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 155, 586 [rep. idem, s. 15], 609(1) [rep. & sub. 1972, c. 13, s. 55; am. 1985, c. 19, s. 206].
Criminal Code, R.S.C., 1985, c. C‑46, ss. 159(1) [en. c. 19 (3rd Supp.), s. 3 ], 682(1) [am. c. 27 (1st Supp.), s. 203 ], 686(1)(a)(i), (b)(iii).
Criminal Code, S.C. 1953‑54, c. 51, s. 588(1).
Criminal Code, 1892, S.C. 1892, c. 29, s. 745.
Crown Cases Act (U.K.), 11 & 12 Vict., c. 78.
Authors Cited
Del Buono, Vincent M. "The Right to Appeal in Indictable Cases; A Legislative History" (1978), 16 Alta. L. Rev. 446.
Lagarde, I. Droit pénal canadien, 2e éd. Wilson & Lafleur, 1974.
O'Halloran, C. H. "Development of the Right of Appeal in England in Criminal Cases" (1949), 27 Can. Bar Rev. 153.
Popple, A. E. "Magistrate's report to Court of Appeal" (1961), 35 C.R. 56.
Stephen, Sir James Fitzjames. A History of the Criminal Law of England, vol. 1. London: MacMillan & Co., 1883.
Tremeear's Annotated Criminal Code, 6th ed. By Leonard J. Ryan. Toronto: Carswell, 1964.
APPEAL from a judgment of the Alberta Court of Appeal (1991), 84 Alta. L.R. (2d) 220, 120 A.R. 63, 8 W.A.C. 63, allowing the accused's appeal from his conviction on a charge of having anal intercourse with a small boy, and ordering a new trial. Appeal allowed, Lamer C.J. and Sopinka and Major JJ. dissenting.
Ken Tjosvold, for the appellant.
A. Clayton Rice, for the respondent.
//Lamer C.J.//
The reasons of Lamer C.J. and Major J. were delivered by
Lamer C.J. (dissenting) -- This case raises two related questions: under what circumstances may comments on the evidence by the trial judge be placed before a Court of Appeal in a trial judge's report under s. 682(1) of the Criminal Code, R.S.C., 1985, c. C-46 ; and how far may a trial judge go in commenting on evidence in his charge to the jury?
I. Facts
On February 23, 1990, before a judge and jury, the respondent was found guilty of engaging in anal intercourse with his step-son and sentenced to four years imprisonment. J.E., the complainant, was 13 years of age at the time of the trial and kindergarten-aged at the time of the alleged incidents. If his story is true, he lived for a period of some months in a household marked by brutal physical and sexual abuse.
The trial judge conducted an inquiry into J.E.'s understanding of the oath and was satisfied that he could be sworn to testify. J.E. was the only Crown witness on the material points. His sworn testimony was that, from the age of five, he was subjected to repeated and violent sexual acts by his step-father, the respondent. The respondent testified on his own behalf and denied the allegations.
Additionally, J.E. testified that his mother forced him to perform oral sex with her, that his step-brother forced him to perform oral and anal sex with him and that his step-sister coerced him to participate in sexual acts with her. All of these individuals denied such incidents took place. The defence's theory of the case was that J.E. was actually the victim of abuse over this period at the hands of his natural father. J.E. testified that he was not abused by his natural father, whom he saw periodically during this time; his mother, however, testified that he looked nervous and shaken after these visits. The case boiled down to a question of credibility and the jury believed J.E. over the accused.
The respondent's appeal to the Alberta Court of Appeal was argued on February 28, 1991. On June 21, 16 months after the trial, and while the judgment of the Court of Appeal was still reserved, the trial judge wrote a letter to the Chief Justice of the Court of Appeal containing the following comments:
This accused's appeal from conviction, as I understand it, has been argued and is now reserved.
I recall this trial very clearly. Were I sitting alone, I would not have found the accused guilty on the evidence at trial. I was of the view that a verdict of guilty would be an unsafe one and I would have said as much to the jury if I thought it were proper for me to do so -- bearing in mind the jury's function.
There were some improbabilities in the young complainant's testimony which concerned me and this, together with the evidence of the accused and the other defence witnesses, created a reasonable doubt in my mind.
I have been concerned about this case since the verdict, particularly when I sentenced [A.W.E.] for this serious crime. I remain concerned today.
Copies of this letter were forwarded to the Crown prosecutor and to defence counsel. The Court of Appeal asked for further submissions in light of this letter. Further written submissions were received and judgment rendered on November 21, 1991. The Court of Appeal found the verdict of the jury unsafe, quashed the conviction, and gave the Crown leave to proceed with a new trial if it so desired. On April 9, 1992, the Crown was granted leave to appeal to this Court, [1992] 1 S.C.R. x.
II. Relevant Statutory Provisions
Trial Judge's Report
682. (1) Where, under this Part, an appeal is taken or an application for leave to appeal is made, the judge or provincial court judge who presided at the trial shall, at the request of the court of appeal or a judge thereof, in accordance with rules of court, furnish it or him with a report on the case or on any matter relating to the case that is specified in the request.
(R.S.C., 1985, c. C-46 (as am. by c. 27 (1st Supp.), s. 203 ))
Buggery and Anal Intercourse
155. Every one who commits buggery or bestiality is guilty of an indictable offence and is liable to imprisonment for fourteen years.
(R.S.C., 1970, c. C-34)
159. (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
(R.S.C., 1985, c. C-46 (as am. by c. 19 (3rd Supp.), s. 3 ))
III. Judgment Below
Court of Appeal (1991), 84 Alta. L.R. (2d) 220 (McClung and Côté JJ.A., and Wachowich J. (ad hoc))
The members of the Court of Appeal recognized that credibility was the central issue in this case, and based on the evidence in the record, they expressed having "very serious doubts" about the conviction. These doubts were apparently reinforced by the receipt of the communication from the trial judge expressing his reservations about the jury's verdict.
Côté J.A. considered the issue of the trial judge's report, noting that an earlier decision of the Alberta Court of Appeal, R. v. Bowles (1985), 21 C.C.C. (3d) 540, had interpreted s. 682(1) of the Code (then s. 609(1)) as constituting an open invitation from the court to the trial judge to make a report wherever circumstances dictate such a step. Côté J.A. held that the Court of Appeal was entitled to factor the letter into its decision-making, as the communication did not amount to supplementary reasons, nor could it be said to amount to "reasons for judgment" (p. 223).
Côté J.A. found that the evidence of the complainant seemed difficult to believe as true, whereas the witnesses who denied the allegations of the complainant seemed credible, both on the face of the transcripts and in the eyes of the trial judge as conveyed through the trial judge's report. He concluded (at p. 224):
In our view, the only way to do justice here is to say that this verdict is unsafe, order a new trial (should the Crown choose to have one), and say nothing more about the facts. That way we will not prejudice the course which any new trial might take.
The Court of Appeal also addressed the question of the offence under which the respondent was charged. At the time of the commission of the offence, there was no offence of "anal intercourse", though there was an offence of "buggery". The court held that this defect did not go to the heart of the charge, and that there would be no point in obliging the Crown to prefer a new information and indictment; however, on the chance that some factual, legal or procedural remedy might be open to the respondent based on this discrepancy, the court ruled that a new trial should be ordered. Côté J.A. refers to this finding as "an independent ground for quashing the conviction and ordering a new trial" (p. 225).
IV. Analysis
The issue to be decided in this case is whether the Court of Appeal was correct in ordering a new trial either on the basis of the unsafeness of the jury's verdict at trial, or alternately, on the basis of the discrepancy between the laws in force at the time the incidents occurred and the laws in force at the time of trial.
During its deliberations on the question of the unsafeness of the verdict in this case, the Court of Appeal accepted a report from the trial judge pursuant to s. 682(1) of the Code. This report cast serious doubt on the finding of guilt by the jury based on the trial judge's opinion on the credibility of the witnesses. What I shall consider below is both whether the trial judge was authorized to furnish a report to the Court of Appeal and whether the Court of Appeal was correct in receiving and relying on the contents of that report. Additionally, in the course of his report, the trial judge indicated that he would have conveyed his opinion in the charge to the jury if it had been proper for him to do so. I shall therefore also consider whether the trial judge was correct in directing himself not to place his comments on credibility before the jury.
A. The Trial Judge's Report
1. The History of the Trial Judge's Report in Canadian Criminal Law
While trial judge's reports have served an important function in the appellate process in Canada, the proper nature and scope of these reports have rarely been explored. In his annotation "Magistrate's report to Court of Appeal" (1961), 35 C.R. 56, A. E. Popple surveyed the case law considering this provision of the Code and aptly concluded that "[i]t is obvious that this report is no ordinary document" (p. 56). In order to determine if the trial judge's report in the present case was properly furnished to the Court of Appeal, it is necessary to better understand the purpose behind these reports. Toward this end, it is useful to briefly review the history of the trial judge's report in the context of the development of criminal appeals in Canada.
A report of the trial judge was unknown at common law as there was, until the 19th century, no appeal procedure from the verdicts of criminal trials on findings of fact or law. Criminal trials which resulted in convictions, however, could be reviewed by the mechanism of prerogative writs. The two most common writs employed for this purpose were the writ of habeas corpus, which could be used to free a prisoner where an error could be shown on the face of the warrant for committal, and the writ of certiorari, which could be used to overturn a conviction where it could be shown that the trial judge lacked jurisdiction. Another important route by which a conviction could be set aside was the writ of error, which, by the 18th century, could be sought as of right where the record of a criminal trial disclosed a mistake in the recording of the indictment, the plea, the verdict, or some other material aspect of the trial: see C. H. O'Halloran, "Development of the Right of Appeal in England in Criminal Cases" (1949), 27 Can. Bar Rev. 153, at pp. 157-58.
The forerunner of our current system of criminal appeals was the practice which gradually evolved in England whereby a guilty verdict in a criminal case could be reviewed by the trial judge reserving a question of law for the consideration of the other judges who convened informally at Serjeant's Inn, of which all the judges were members. If the judges were persuaded by counsel that the accused had been improperly convicted, a pardon was granted. This practice was regularized in 1848 with the enactment of the Crown Cases Act (U.K.), 11 & 12 Vict., c. 78, under which the trial judge gained the statutory discretion to state a question of law and reserve a case to be heard by the Court for Crown Cases Reserved. However, as with the prerogative writs, the stated question of law had to be decided solely on the basis of the record before the Court of Appeal.
Traditionally, however, no formal record was kept of the evidence at trial, or of the direction given by the judge to the jury. As Sir James Stephen explained in the following passage from A History of the Criminal Law of England (1883), vol. 1, at pp. 308-9, the lack of any reliable record of events at trial was a central impediment to the development of any formal appellate procedure in England:
As I have already observed the only document connected with a trial necessarily put into writing is the indictment. Upon this the clerk of assize or other officer of the court makes certain memoranda, showing the plea of the prisoner and the verdict of the jury. He also keeps a minute book in court in which he makes a note of the names of the jurors by whom different sets of cases are tried, an abstract of the indictments, and a memorandum of pleas, verdicts, and sentences. This is a mere private memorandum book having no legal authority, and kept merely for the purposes of the officer who keeps it. He is under no obligation to keep it. No form is prescribed in which it is to be kept, and it never becomes in any way a public record. In all cases, however, except an infinitesimally small number, it is the only record kept of criminal trials, and nothing more meagre, unsatisfactory, and informal can well be conceived.
In submitting proposals to the Criminal Code Commission on the establishment of a statutory regime of criminal appeals in England in the late 19th century, Sir James Stephen advocated instituting a public record of the proceedings at trial. He suggested in this proposal instituting the following practice (at p. 318):
... that the Court of Appeal should have power to call for the judge's notes, and to supply them if they are considered defective by any other evidence which may be available, -- a shorthand writer's notes for instance. We consider the statutory recognition of the duty of the judge to take notes as a matter of some importance.
This proposal was adopted under Part LII of Canada's first Criminal Code in 1892 (S.C. 1892, c. 29) which consolidated a patchwork of earlier legislation and practice relating to criminal appeals: see V. M. Del Buono "The Right to Appeal in Indictable Cases; A Legislative History" (1978), 16 Alta. L. Rev. 446. In outlining the evidence that was to be put before a Court of Appeal under this new statutory scheme, s. 745 of the Criminal Code, 1892 provided the following:
745. On any appeal or application for a new trial, the court before which the trial was held shall, if it thinks necessary, or if the Court of Appeal so desires, send to the Court of Appeal a copy of the whole or of such part as may be material of the evidence or the notes taken by the judge or presiding justice at the trial. The Court of Appeal may, if only the judge's notes are sent and it considers such notes defective, refer to such other evidence of what took place at the trial as it may think fit. The Court of Appeal may in its discretion send back any case to the court by which it was stated to be amended or restated.
Thus, prior to regular and reliable court reporting, the judge's notes of the trial formed an essential part of the record before the Court of Appeal. These notes would typically refer to the testimony given by particular witnesses, the central pieces of evidence in the case, and any noteworthy occurrences at trial.
The notes of the trial judge are referred to, however, in the 1927 Criminal Code (R.S.C. 1927, c. 36 ), though with the dimension of the trial judge's "report" added. Section 1020 provided:
1020. The judge or magistrate before whom a person has been tried on an indictment shall, in the case of appeal under this Part against the conviction or against the sentence, or in the case of an application for leave to appeal under this Part, furnish to the court of appeal, in accordance with rules of court, his notes of the trial; and shall also furnish to the court of appeal in accordance with rules of court, a report giving his opinion upon the case or upon any point arising in the case.
Thus, for the first time, the trial judge was placed under a statutory duty to append a report giving an opinion on the case or any point arising in the case. This amendment to the section entrenched a practice that had, I believe, developed as a result of the growing centrality of the judge's notes. Where such notes were not self-explanatory, or if the trial judge was concerned that something in the notes, or omitted from the notes, could mislead a Court of Appeal, the trial judge might choose to, or be requested to, append an explanation to these notes. It was the informal explanation accompanying the trial judge's notes that most likely evolved into the statutory requirement that trial judges furnish a report to the Court of Appeal.
As accurate transcripts of proceedings became commonly available, the Court of Appeal's need for the judge's notes taken at trial diminished. By the 1950's, the section was amended to remove the statutory duty on the trial judge to provide notes of the trial: S.C. 1953-54, c. 51, s. 588(1). The duty to furnish the Court of Appeal with a report, however, remained in force. The section now read as follows:
588. (1) Where, under this Part, an appeal is taken or an application for leave to appeal is made, the judge or magistrate who presided at the trial shall furnish to the court of appeal, in accordance with rules of court, a report giving his opinion upon the case or upon any matter relating thereto.
Given the increasing reliability of the materials placed before the Court of Appeal, the justification for a report from the trial judge offering his "opinion upon the case" was less clear. This anomaly is concisely expressed in the following passage from Tremeear's Annotated Criminal Code (6th ed. 1964), at p. 1088:
It is difficult to see the justification for the provision, enabling the trial judge or magistrate to make "a report giving his opinion upon the case or upon any matter relating thereto." Where the evidence has not been taken in shorthand, it is obvious that the judge's notes must be made available on the appeal, but the report here contemplated is additional to the notes of the evidence, or to the official shorthand report of the proceedings. It is not usual in other appeals for the trial judge to furnish an ex parte explanation of, or justification for, his decision, and it would seem to be especially objectionable in criminal proceedings, where the liberty of the subject is at stake.
Despite such misgivings, the provision remained unchanged until 1972. In an amendment to the Criminal Code in that year (S.C. 1972, c. 13, s. 55), the provision was redrafted in the following manner:
609. (1) Where, under this Part, an appeal is taken or an application for leave to appeal is made, the judge or magistrate who presided at the trial shall, at the request of the court of appeal or a judge thereof, in accordance with rules of court, furnish to it or him with a report on the case or on any matter relating to the case that is specified in the request.
The requirement that the trial judge include his "opinion" in the report was thus removed. Additionally, the amendment specified that the section no longer imposed a statutory duty on trial judges to furnish a report. This reform did not signify that the trial judge's report was now regarded as less important, but that the continued burden on judges to file a report whether or not they had any opinion of substance to offer was no longer seen as necessary.
The current provision in force, s. 682(1) of the Code, is identical to this last version save for the substitution of "provincial court judge" for "magistrate" (R.S.C., 1985, c. 27 (1st Supp.), s. 203).
In light of this historical background, I shall now consider whether the Alberta Court of Appeal was correct in its interpretation of s. 682(1) of the Code in this case.
2.Was the Trial Judge's Report Authorized under Section 682(1) of the Code?
In the present case, according to Côté J.A., the trial judge's report was received "unexpectedly" by the Court of Appeal while the case was under reserve. After considering submissions from the parties on whether the report was valid and should be received under s. 682(1) , the Court of Appeal concluded the following: "... we cannot say that there was any impropriety whatever in sending in this report, or that we should shut our minds to such relevant information" (p. 223).
The Court of Appeal held that there was a general invitation to trial judges in Alberta to submit a report on a case where the trial judge felt the circumstances justified such a measure. The court relied on its earlier interpretation of this section in Bowles, supra, at pp. 546-47, wherein the following statement regarding the invitation to trial judges was made:
Care must be taken to maintain the distinction between a transcript of those oral reasons for judgment actually delivered at hearing, which must be furnished to the Court of Appeal pursuant to s. 609(2)(c) of the Code, and any report on the case by the trial judge pursuant to s. 609(1). The latter are authored by the trial judge and are not limited to what actually was said at trial; the former are certified by a court reporter to this Court as "a true and faithful transcript of the proceedings taken down by us". Transcripts of oral reasons have been available in Alberta for many years and the resulting practice of this Court has been to refrain from asking for reports under s. 609(1) [now s. 682(1) ] except in unusual circumstances. It is fair to say, however, that the practice is that there is a standing invitation from this Court to make a report under s. 609(1) whenever circumstances dictate such a step. Care must be taken not to abuse the process. ... [Emphasis added.]
With respect, I cannot completely agree with this interpretation. By express amendment to this section of the Code, a trial judge's report is now authorized only where requested by the Court of Appeal. Parliament has dictated that only the Court of Appeal may decide under what circumstances a trial judge's report is needed. Issuing a general invitation to trial judges to submit reports would be tantamount to restoring the old section. However, if the trial judge wishes to make a comment which relates to material issues not apparent on the face of the transcript, such as observations regarding the behaviour of a juror or the demeanour of a witness, there is no way for a Court of Appeal independently to learn of the existence of the judge's opinion. In these circumstances, it is only logical that a Court of Appeal may issue a standing invitation to the judges of that province to inform it of such relevant information.
The correct view was adopted in R. v. Hawke (1975), 22 C.C.C. (2d) 19 (Ont. C.A.), where Dubin J.A. (as he then was) held that a report submitted on the trial judge's initiative, which did nothing more than elaborate on the evidence in the record in support of a conviction, was invalid under s. 609(1) (now s. 682(1) ). The section seems to me similarly unambiguous in such circumstances.
With respect to the report in this case, the trial judge's comments pertained exclusively to evidence already in the record of the trial before the Court of Appeal. Therefore, I find the Court of Appeal erred in finding the report of the learned trial judge authorized under s. 682(1) . However, as I shall now briefly discuss, even if the report in this case were so authorized, I am of the view that the trial judge's comments exceeded the bounds of what properly could be received and relied upon by the Court of Appeal in a report under this section.
3.Did the Court of Appeal Err in Receiving and Relying upon the Trial Judge's Report?
It is well established that a trial judge, in furnishing the Court of Appeal with a report, must be vigilant to avoid simply expanding upon reasons or rulings previously given or providing reasons where none were given at trial. In such circumstances, a trial judge's report will be held invalid: R. v. MacEwen (1978), 39 C.C.C. (2d) 523 (P.E.I.S.C. in banco), at p. 526; R. v. Chapman (1958), 29 C.R. 168 (B.C.C.A.), at p. 177; R. v. Pressley (1948), 7 C.R. 342 (B.C.C.A.), at pp. 343-44; and R. v. James (1945), 83 C.C.C. 369 (B.C.C.A). However, where a trial judge takes issue with the verdict of the jury, a series of older cases adopted the position that this disapproval, which alone cannot justify the setting aside of a verdict, may be a factor taken into consideration by the Court of Appeal: R. v. Schrager (1911), 6 Cr. App. R. 253, at p. 254; R. v. Hart (1914), 10 Cr. App. R. 176, at p. 178; R. v. Boyd (1953), 105 C.C.C. 146 (Ont. C.A.), at pp. 150-51; and R. v. Gould (1958), 122 C.C.C. 253 (Ont. C.A.).
In this case, the Court of Appeal, without expressly referring to this earlier line of cases, justified its reception of the contents of the trial judge's report on the following basis (at p. 223):
The Crown cites authority forbidding a judge appealed from to give supplementary reasons for judgment pending appeal. But that is not the situation here. There was a jury. The trial judge did not give reasons for judgment before appeal, nor is this document reasons for judgment. If anything, it is the opposite, for it gives comments tending strongly against the conviction which was entered at trial after the jury's verdict.
This raises the issue of whether the Court of Appeal was correct in suggesting that a trial judge's report can be utilized to undermine the verdict of the jury.
The trial judge remarked in his report that had he been sitting without a jury, he would not have convicted the accused. A similar statement was made by the trial judge in Gould, supra. In that case, Roach J.A., speaking for the Ontario Court of Appeal, held that such a report should be taken into consideration. After receiving the trial judge's report, however, Roach J.A. conc