Wright v. The Queen / McDermott v. The Queen / Feeley v. The Queen

Wright v. The Queen / McDermott v. The Queen / Feeley v. The Queen
Collection
Supreme Court Judgments
Date
1963-06-24
Report
[1963] SCR 539
Judges
Taschereau, Robert; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Judson, Wilfred; Hall, Emmett Matthew
On appeal from
Ontario
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Wright v. The Queen / McDermott v. The Queen / Feeley v. The Queen, [1963] S.C.R. 539
Date: 1963-06-24
Robert J. Wright, Joseph P. McDermott and Vincent B. Feeley (Plaintiffs) Appellants;
and
Her Majesty The Queen (Defendant) Respondent.
1963: March 20, 21; 1963: June 24.
Present: Taschereau, Cartwright, Fauteux, Judson and Hall JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Special pleas—Conspiracy—Interference with administration of justice—Six count indictment—Whether acquittal on conspiracy charge a bar to prosecution on second conspiracy charge—Autrefois acquit—Res judicata—Criminal Code, 1953-54 (Can.), c. 51, ss. 101(b), 518.
The three appellants, W, M and F, were indicted on six counts. Count 1 related to a conspiracy to commit an indictable offence by giving money to a peace officer with intent that the said officer should interfere with the administration of justice. This count was tried separately. All three were acquitted and the Crown’s appeal was abandoned.
Count 2 related to a conspiracy to effect the unlawful purpose of obtaining from the same peace officer information which it was his duty not to divulge. Counts 3, 4 and 5 related only to W and charged him with paying money to the peace officer with intent that the latter should interfere with the administration of justice. Count 6 related to the keeping of a common gaming house by F and M, to which they pleaded guilty at a later trial.
At the second trial, the conspiracy under count 2 was tried as well as the substantive offences against W under counts 3, 4 and 5. The special plea of autrefois acquit and the defence of res judicata were raised not only against count 2 but also by W against the substantive offences. On the conspiracy charge, the trial judge held against the appellants on the plea of autrefois acquit, also that the defence of res judicata did not arise and declined to submit it to the jury. The jury convicted. However, on the three counts against W, the judge gave effect to the defence of res judicata and directed the jury to acquit. The appellants appealed against the conspiracy conviction and the Crown appealed against W’s acquittal. The Court of Appeal affirmed the conviction on count 2 and ordered a new trial for W on counts 3, 4 and 5. The appellants were granted leave to appeal to this Court on count 2 and W appealed as of right from the order setting aside his acquittal.
Held (Cartwright and Hall JJ. dissenting): The appeal against the conviction on count 2 should be dismissed as well as the appeal of W against a new trial on counts 3, 4 and 5.
Per Taschereau, Fauteux and Judson JJ.: The Court of appeal was right in rejecting the plea of autrefois acquit and in finding that the trial judge was correct in his ruling under s. 518 of the Criminal Code. The conspiracies charged in count 1 and in count 2 were not substantially identical. Count 1 involved not only the payment of money but required proof of the intent that the officer should interfere with the administration of justice. On the other hand, count 2 did not involve as an element the payment of money with the intent mentioned in s. 101(a) but charged the appellants with having conspired for an object which did not necessarily involve an intent that the officer should interfere with the administration of justice.
The trial judge was right in ruling that there was nothing to submit to the jury on the defence of res judicata in respect of count 2. An acquittal on a charge of conspiracy does not pronounce against every part of it. There was no issue on which it could be said that the Crown was estopped in the second trial. The two counts charged two conspiracies with different component elements, and it was impossible to say that the substantial basic facts common to both counts had been determined in favour of the appellants in the first trial.
As to counts 3, 4 and 5 relating to W, the Court of Appeal was right in ordering a new trial. The verdict at the first trial acquitted W of nothing more than his participation in the conspiracy charged on count 1 and did not of necessity involve a finding that he did not commit the substantive offence against s. 101(b) charged in those counts.
Per Cartwright and Hall JJ., dissenting: The plea of autrefois acquit was not available to the appellants at the trial on count 2. On their trial on count 1 the appellants could not have been convicted on count 2.
It is for the judge to decide as a matter of law whether the defence of res judicata has been made out, and, therefore, the trial judge was right in refusing to admit as an exhibit to go to the jury the complete record of the first trial.
The trial judge should have held that the defence of res judicata had been established at the trial on count 2. The Crown was now estopped from questioning that which was (in fact and law) the ratio of and fundamental to the decision in the first trial. Although the two counts differed in language and in their essential elements, in reality they dealt with the same offence. There was only one conspiracy—if there was a conspiracy. The conspirators were not interested in just getting information or in just having the officer give information unlawfully, they wanted the information so as to be forewarned of the impending raids on their gambling clubs. Everything that could be considered unlawful under count 2 was part and parcel of the agreement under count 1. Only one agreement was in evidence and it could not be severed arbitrarily at some point by the Crown so as to create the illusion of two offences from what was in fact only one.
The Crown was not estopped by W’s acquittal under count 1 from proceeding to try him for the substantive offences under counts 3, 4 and 5. McDonald v. The Queen, [1960] S.C.R. 186, referred to. However, his acquittal under count 1 negatived the essentially criminal element of these substantive offences—the intent that the officer should interfere with the administration of justice. It would not now be open to the jury to find that the money which W admitted having given was given with that intent. W’s acquittal should be restored.
APPEALS by the three appellants from a judgment of the Court of Appeal for Ontario[1], affirming their conviction on a conspiracy charge and setting aside a verdict of acquittal in the case of W on charges of corruption. Appeals dismissed, Cartwright and Hall JJ. dissenting.
J.J. Robinette, Q.C., for the appellant, McDermott.
J. Sedgwick, Q.C., for the appellant, Feeley.
P. Hartt, Q.C., for the appellant, Wright.
R.P. Milligan, Q.C., for the respondent.
The judgment of Taschereau, Fauteux and Judson JJ. was delivered by
JUDSON J.:—The three appellants were tried before Spence J. and a jury and acquitted in May 1961 on the first count in an indictment, which was:
1. ROBERT J. WRIGHT, JOSEPH P. McDERMOTT and VINCENT B. FEELEY, between the first day of January, 1960, and the first day of July, 1960, in the Province of Ontario, did unlawfully agree and conspire together to commit an indictable offence under Section 101(b) of the Criminal Code of Canada by corruptly giving money to George Scott, a Peace Officer of the Ontario Provincial Police, with intent that the said George Scott should interfere with the administration of justice, contrary to the Criminal Code of Canada, Section 408(1) (d).
The Crown abandoned an appeal against the acquittal and in March 1962, the three appellants were tried before Donnelly J. and a jury on the second count in the indictment, which was:
2. AND FURTHER THAT the said ROBERT J. WRIGHT, JOSEPH P. McDERMOTT and VINCENT BERNARD FEELEY, between the first day of January, 1960, and the first day of July, 1960, in the Province of Ontario, did unlawfully agree and conspire together to effect an unlawful purpose, to wit, to obtain from George Scott, a constable of the Ontario Provincial Police, information which it was his duty not to divulge, contrary to the Criminal Code of Canada, Section 408(2).
The judge held against the accused on a special plea of autrefois acquit and they then entered a plea of “Not Guilty” and offered the alternative defence of res judicata. The judge held that this defence did not arise and declined to submit it to the jury. The jury convicted and the conviction was sustained by a unanimous judgment in the Court of Appeal[2]. I adopt in their entirety the reasons of the Court of Appeal in rejecting the defence of autrefois acquit, and their finding that the learned trial judge was correct in his ruling under s. 518 of the Criminal Code. The matter is summarized by Schroeder J.A. in the following paragraph:
The conspiracy alleged in count 1 involved not only the payment of money to Constable Scott, but an essential ingredient of the offence was the intent of the alleged conspirators that George Scott should interfere with the administration of justice. Count 2, on the other hand, accuses the appellants of having entered into an entirely different kind of conspiracy. It does not involve as an element the payment of money corruptly to Scott or to any other person with the intent mentioned in s. 101 (a) (iv) but its object or purpose was stated simply to be the obtainment from Constable Scott of information which it was his duty not to divulge. It was established at the trial that the provisions of the Police Act, now R.S.O. 1960, c. 298 and the Regulations passed pursuant thereto prohibited a police officer from disclosing such information to anyone, but the procurement of that breach of duty did not necessarily involve an intent on the part of the procurers that the police officer should interfere with the administration of justice. Count 2 simply charges the commission of the common law offence of “conspiracy to effect an unlawful purpose.” The intent with which the parties are alleged to have entered into the conspiracy charged in count 1, namely, that he (Scott) should interfere with the administration of justice, is not an ingredient of the offence charged in count 2, and its absence is a significant point of distinction between the two offences. They are not substantially indentical or practically the same, and on that ground alone the defence based on the special plea of autrefois acquit cannot prevail.
On the defence of res judicata the trial judge treated the case as one in which there was no evidence to go to the jury that the first trial had determined in favour of the accused an issue or issues which would determine the second trial in their favour. But the defence says that the facts proved at both trials were the same or substantially the same, the conspirators were the same, the payments of money were the same and the person to whom the payments were made was the same person in each count. The defence argues from this that all the issues in count 2 have been litigated in favour of the accused by their acquittal on count 1, and that the case should have been submitted to the jury on this basis with an appropriate direction from the trial judge. The argument is supported by reference to the defence put forward at the first trial where everything was admitted in the presentation to the jury except the corrupt intent.
The weakness in this submission is in trying to read too much into the verdict of not guilty on count 1 where the two counts charge conspiracy. At the first trial, the jury found that the proven facts did not amount to the conspiracy charged. At the second trial, the jury found that the same or substantially identical facts did amount to the, conspiracy charged in count 2. An acquittal on a charge of conspiracy does not pronounce against every part of it. On what issue is there an estoppel against the Crown? Is it on the agreement or the corruptly giving or the intent in count 1? All that a judge or a jury, if it becomes fit matter for submission to a jury at the second trial, can determine is that the evidence fell short of warranting a conviction on the precise charge. There is no issue on which it can be said that the Crown is estopped in the second trial. This distinguishes the defence of res judicata in this case from the comparatively simple examples of its application in cases where there is an estoppel on issues such as identity of the accused (The King v. Quinn[3]); possession (Sambasivam v. The Public Prosecutor[4]), responsibility for the death of two persons as a result of the same catastrophe, where an acquittal on a charge of manslaughter of A must result in an acquittal on the same charge for the death of B, the whole matter having been litigated, adversely to the prosecution in the first trial (R. v. Sweetman[5]; Gill v. The Queen[6]).
These simplicities do not arise when the two counts charge two conspiracies with different component elements. It is impossible in the present case to say that the substantial basic facts common to both counts have been determined in favour of the accused in the first trial. The trial judge was right in his ruling that there was nothing to submit to the jury on this defence and I agree with the reasons of the Court of Appeal in affirming his ruling.
Counts 3, 4 and 5 in the indictment relate only to the appellant Wright. Count 3 reads:
3. AND FURTHER THAT the said ROBERT J. WRIGHT at the Municipality of Metropolitan Toronto in the County of York on or about the 29th day of February, 1960, did give corruptly to Constable George Scott, a peace officer of the Ontario Provincial Police Force, $400.00 in money with intent that the said George Scott should interfere with the administration of justice contrary to the Criminal Code of Canada, Section 101(b). Counts 4 and 5 are in the same terms but refer to payments on subsequent dates.
On these counts, at the second trial, the learned trial judge did give effect to the defence of res judicata and directed an acquittal. The Crown appealed to the Court of Appeal against this acquittal and it was there held that there was error in law in giving this direction. The Court of Appeal set aside the order of acquittal on these counts and directed that there should be a new trial. I would affirm the order of the Court of Appeal on this aspect of the appeal for the reasons given by them, namely, that the verdict at the first trial acquitted Wright of nothing more than his participation in the conspiracy charged in count 1 and did not of necessity involve a finding that he did not commit the substantive offence against s. 101(b) charged in counts 3, 4 and 5.
The result is that the appeal of the three appellants against their conviction on count 2 is dismissed and the appeal of the appellant Wright against the order of the Court of Appeal directing a new trial on counts 3, 4 and 5 is also dismissed.
CARTWRIGHT J. (dissenting):—I agree with the reasons and conclusions of my brother Hall and wish to add only a few words.
In my respectful view the Court of Appeal[7] erred in considering and comparing the wording of the several counts in the indictment without making a sufficiently careful examination of the evidence adduced and the directions given by the presiding judge at each of the trials. The extracts from the transcripts of the proceedings in the two trials set out in the reasons of my brother Hall appear to me to make plain, what becomes, if possible, even more plain on an examination of the complete records, that in the trial on count 2 the jury were invited to pass upon the very same issue of fact as had already been decided in favour of the appellants by the jury at the trial of count 1.
The following words of Douglas J. delivering the unanimous judgment of the Supreme Court of the United States in Sealfon v. U.S.[8] appear to me to be in accordance with our law and applicable to the circumstances of the case at bar:
It has long been recognized that the commission of the substantive offence and a conspiracy to commit it are separate and distinct offences, thus with some exceptions, one may be prosecuted for both crimes. But res judicata may be a defence in a second prosecution. That doctrine applies to criminal as well as civil proceedings and operates to conclude those matters in issue which the verdict determined though the offences be different.
Thus the only question in the case is whether the jury’s verdict in the conspiracy trial was a determination favorable to petitioner of the facts essential to conviction of the substantive offence. This depends upon the facts adduced at each trial and the instructions under which the jury arrived at its verdict at the first trial.
Respondent argues that the basis of the jury’s verdict cannot be known with certainty.
* * *
The instructions under which the verdict was rendered, however, must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings. We look to them only for such light as they shed on the issues determined by the verdict.
* * *
So interpreted the earlier verdict precludes a later conviction of the substantive offence. The basic facts in each trial were identical.
* * *
It was a second attempt to prove the agreement which at each trial was crucial to the prosecution’s case and which was necessarily adjudicated in the former trial to be non‑existent. That the prosecution may not do.
With the greatest respect for those who hold a contrary view, after an anxious perusal of the records in the two trials I see no escape from the conclusion that the trial before Donnelly J. was a second attempt by the Crown to prove the agreement which was necessarily adjudicated in the trial before Spence J. to be non-existent. I am in complete agreement with the opinion of the Supreme Court of the United States from which I have quoted above that this the prosecution may not do.
In The Queen v. King[9], Hawkins J., with the concurrence of Cave, Grantham, Lawrance and Wright JJ., stated, not as a new rule but as one which was long established, that “it is against the very first principles of the criminal law that a man should be placed twice in jeopardy upon the same facts”. I am unable to see how the judgment appealed from can be upheld without a violation of those first principles. I would dispose of the appeals as proposed by my brother Hall.
HALL J. (dissenting):—On May 29, 1961, the appellants came before Spence J. and a jury on an indictment as follows:
1. ROBERT J. WRIGHT, JOSEPH P. McDERMOTT and VINCENT B. FEELEY, between the first day of January, 1960, and the first day of July, 1960, in the Province of Ontario did unlawfully agree and conspire together to commit an indictable offence under Section 101(b) of the Criminal Code of Canada by corruptly giving money to George Scott a peace officer of the Ontario Provincial Police Force, with intent that the said George Scott should interfere with the administration of justice, contrary to the Criminal Code of Canada, Section 408(1) (d).
2. AND FURTHER THAT the said ROBERT J. WRIGHT, JOSEPH P. McDERMOTT and VINCENT BERNARD FEELEY between the first day of January, 1960 and the first day of July, 1960, in the Province of Ontario did unlawfully agree and conspire together to effect an unlawful purpose, to wit: to obtain from George Scott, a constable of the Ontario Provincial Police, information which it was his duty not to divulge, contrary to the Criminal Code of Canada, Section 408(2).
3. AND FURTHER THAT the said ROBERT J. WRIGHT at the Municipality of Metropolitan Toronto in the County of York on or about the 29th day of February, 1960, did give corruptly to Constable George Scott, a peace officer of the Ontario Provincial Police Force, $400.00 in money with intent that the said George Scott should interfere with the administration of justice contrary to the Criminal Code of Canada, Section 101(b).
4. AND FURTHER THAT the said ROBERT J. WRIGHT at the Municipality of Metropolitan Toronto in the County of York on or about the 29th day of March, 1960, did give corruptly to Constable George Scott, a peace officer of the Ontario Provincial Police Force, $200.00 in money with intent that the said George Scott should interfere with the administration of justice, contrary to the Criminal Code of Canada, Section 101(b).
5. AND FURTHER THAT the said ROBERT J. WRIGHT at the Municipality of Metropolitan Toronto in the County of York on or about the 27th day of April, 1960, did give corruptly to Constable George Scott a peace officer of the Ontario Provincial Police Force, $400.00 in money with intent that the said George Scott should interfere with the administration of justice, contrary to the Criminal Code of Canada, Section 101 (b).
6. AND FURTHER THAT the said JOSEPH P. McDERMOTT and VINCENT BERNARD FEELEY at the Township of Toronto in the County of Peel during the month of May, 1960, and previously, did unlawfully keep a disorderly house, to wit: a common gaming house at the premises situate and known as 2165 Centre Road South in the Township of Toronto in the County of Peel, contrary to the Criminal Code of Canada, Section 176(1).
The Crown elected to proceed with the trial of count 1 only. After a trial which lasted nine days, the jury found the appellants not guilty. An appeal from that verdict was taken by the Crown but later abandoned, so the acquittal on count 1 stands.
Then on March 12, 1962, the appellants came before Donnelly J. and a jury to be tried on counts 2, 3, 4, 5 and 6.
When called upon to plead to count 2, Wright, by his counsel, Mr. O’Driscoll, entered a special plea pursuant to s. 516 of the Code as follows:
I have a special plea for the accused Wright. Having heard the said indictment read here in Court, the said Robert J. Wright saith that our said Lady the Queen ought not further to prosecute the said Indictment against him, the said Robert J. Wright, because he saith that, heretofore, to wit, on the 9th day of June, 1961, in the Supreme Court of Ontario, in the City of Toronto, in the Province of Ontario, before the Honourable Mr. Justice Spence and a Jury, he, the said Robert J. Wright, was lawfully acquitted of the said offence charged in the said Indictment.
Wherefore he, the said Robert J. Wright, prays Judgment and that he may be discharged from the said premises in the said Indictment specified.
being a plea of autrefois acquit.
McDermott by his counsel Mr. Brooke entered the same special plea.
Feeley followed the same course by his counsel Mr. Sedgwick.
Mr. Milligan for the Crown replied as follows:
In reply thereto and hereupon I, R.P. Milligan, Crown Counsel who prosecutes for our said Lady the Queen in this behalf, says that by reason of anything in the said plea of the said all three accused above pleaded in bar alleged, our said The Lady, The Queen, ought not to be precluded from prosecuting the said indictment against the said three accused; because she says that the said three accused were not lawfully acquitted of the said offence charged in the said indictment, in manner and form as the said three accused hath above in their said plea alleged; and this he, the said R.P. Milligan prays may be inquired of by the country.
The issues of these special plea of autrefois acquit were fully argued by counsel for the accused and counsel for the Crown. Intertwined in the autrefois acquit argument were submissions that the plea of res judicata was also available and that it was being put forward on behalf of the three appellants.
Donnelly J. gave judgment on the special plea as follows:
The three accused rely on a special plea of autrefois acquit. Section 517 of the Code requires that I decide this issue. The three accused were before this Court in May and June, 1961, on the first count in the indictment at which time the jury acquitted all three on the charge on which they were then before the Court.
It is now agreed that there will be no new evidence offered if the trial proceeds on the second count. If there was any change in the evidence it will simply be that the Crown will not offer all the evidence which was adduced before. Section 518 of the Code provides that where an issue on a plea of autrefois acquit to a count is tried and it appears that the matter on which the accused was given in charge of the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and that on the former trial, if all proper amendments had been made that might then have been made, he might have been convicted of all the offences of which he may be convicted on the count to which the plea of autrefois acquit is pleaded judgment shall be given discharging the accused in respect of that count.
In considering the matter. I must keep in mind the statement of Crown counsel that no new evidence will be offered on the second count. The test is not the similarity of the evidence or the facts in the particular case. The question is whether the charges are identical, or substantially identical. It then remains to consider whether the charges under Count 1 and Count 2 are substantially identical. By Count 1 the accused were charged that they conspired together to commit an indictable offence under Section 101(b) of the Criminal Code of Canada by corruptly giving money to George Scott, a peace officer of the Ontario Provincial Police Force, with intent that the said George Scott should interfere with the administration of justice, contrary to Section 408(1) (d). The second count charges that the accused did unlawfully agree and conspire together to effect an unlawful purpose, to wit, to obtain from George Scott, a constable of the Ontario Provincial Police Force, information which it was his duty not to divulge contrary to the Criminal Code of Canada, Section 408(2).
On behalf of the accused it is urged that the jury having rendered a verdict of not guilty they found that the accused did not conspire together. People, when conspiring, may conspire to do one or more unlawful acts. It does not follow that because the jury found the accused not guilty on a charge of conspiring to do a specific unlawful act that the jury found the accused did not conspire to do any unlawful act.
On the first trial the jury was instructed that the essential elements of the offence were, firstly, the agreement to give money to Scott corruptly; secondly, the intent that Scott should interfere with the administration of justice. It is clear that these are the elements of the offence charged in the first count. In order to establish the offence charged in the second count it is not necessary for the Crown to prove any agreement to give or pay money to Scott corruptly. Section 101 makes it an essential part of the offence that the person committing the offence intend that the party offered or receiving the money interfere with the administration of justice. No such intent is required under Section 482. It was argued by counsel for Feeley that Count 1 could have been drawn in such a way that it would have included the second count. If this had been done it is my opinion that the count would be bad for duplicity. I find that the offence charged in the second count is not an offence included in the first count and that it would not have been possible on the former trial, no matter what amendment had been made, to have convicted the accused of the offence charged in the second count.
It is well established that a person must not be placed in peril of being convicted twice for the same offence. Here the offences are not the same or substantially the same. The result is that the accused are not being asked to stand trial a second time for the same offence notwithstanding that the evidence will be the same as on the former trial.
The accused have failed to establish that the offence charged in the second count is substantially the same as that charged in the first count, or one on which they could have been convicted at. the first trial and the plea of autrefois acquit fails.
Will you have the prisoners plead, please.
And as to res judicata the record is as follows:
HIS LORDSHIP: Before leaving the matter I should deal with the question of res judicata. I am of the opinion that this is a defence included in a plea of not guilty and should not be dealt with by me at this time.
Mr. SEDGWICK: SO long as that is clear, that in pleading not guilty res judicata is pleaded as being an included plea.
HIS LORDSHIP: That is my view.
Mr. SEDGWICK: It is not provided for as an included plea. I intend to stress that as part of the defence.
HIS LORDSHIP: As far as I am concerned you are free to raise it as part of your plea of not guilty.
Following this counsel for the appellants applied to have count 2 tried separately from counts 3, 4, 5 and 6. Donnelly J. directed the Crown to proceed with count 2 only and the trial proceeded on that basis after pleas of Not Guilty had been directed to be entered by Donnelly J. following similar statements by all three appellants that “I enter no plea at this time.”
Following the selection of a jury the record of the trial before Spence J. was tendered. Donnelly J. dealt with the matter as follows:
HIS LORDSHIP: I am not going to permit the filing of the evidence. If you wish to file it with the Court I am content that it be filed, but I do not propose to permit these books of evidence or any documents which you have asked to file—I do not propose to permit them to go to the jury. If you wish to file them with the Court for the use of counsel I am content that they be filed for that purpose, but for that purpose only.
But the record was not then filed.
Mr. Milligan opened for the Crown. In view of the arguments advanced on behalf of the appellants, it is desirable to quote rather fully from Mr. Milligan’s opening statement. He said in part:
Mr. MILLIGAN: Gentlemen of the jury, simply put the offence is this, that the three accused agreed and conspired together to obtain information from a police officer which that constable was not at liberty to give them.
Now, gentlemen, the Crown alleges that the accused McDermott and Feeley were gamblers, that they are interested in two clubs—chartered clubs where gambling was allowed, that is legal gambling, and the Crown alleges it was suspected at times there was illegal gambling going on in the club. Now, you will appreciate, gentlemen, that the police would want to check these clubs to see if any illegal gambling was going on in these clubs, and to check these clubs there is only one way to do it, and that is not to tell the people they were coming to inspect them because they would certainly not find anything then, but to raid quickly and without notice, to swoop down on the club, walk in and then see if there is any illegal gambling, and if the police did find that there was illegal gambling, of course the club would be charged and probably put out of business. The Crown alleges that naturally McDermott and Feeley would be very interested to know when these clubs would be raided and on what dates so that they would be ready.
How would they get that information? I submit to you that the only way they can get the information is to get it from some person in authority who knew the raid was going to take place—was going to be conducted. The Crown alleges that for some time the accused Wright in the year 1953/1954 was in what is known as an anti-gambling squad of the Ontario Provincial Police. The anti-gaming squad is a branch of the Ontario Provincial Police which deals almost entirely with the suppression of illegal gambling. Wright was on that squad, and you can draw your inferences from the evidence of what connection Wright had with the accused McDermott and Feeley.
In any event, in the early part of 1960, in January 1960, the accused Wright was transferred out of the anti-gambling squad to duty in the Town of Belleville. The Crown alleges now that the accused McDermott and Feeley had lost their contact. Wright was now out of the anti-gaming squad, he would not be able to tell them when and at what time the raids would be conducted. Another source of information had to be obtained. The Crown alleges that then the three accused conspired together to obtain that information from a member of the anti-gaming squad, namely Constable Scott.
Scott was approached, and how he was approached will be tendered in evidence, and how information was obtained from him will be tendered in evidence, but the Crown alleges that they did conspire to obtain information from Scott, a member of the anti‑gaming squad, that they did obtain information from Constable Scott, and that Constable Scott—and I should say the information they obtained from Constable Scott is unlawful for Constable Scott to give, or for any police officer, of the anti-gaming squad to give.
Now unfortunately for the three accused Scott was approached and without letting the accused know he reported to his superior officers. The superior officer when Scott was first approached by the accused Wright, who was at that time, as I told you, still a member of the Ontario Provincial Police, stationed at Belleville—but Wright did not say whom he was working for, so the superior officers naturally wanted Scott to play along with Wright because they wanted to find out who Wright was working for. In other words, may I put it this way, they were not so much interested, or they were interested in seeing that Wright was arrested and booked, but they were certainly interested in who Wright was working for, and so Scott was instructed to play along and he did play along, and eventually contact was made, particularly with the accused McDermott, eventually directly by Scott to McDermott, and you will hear evidence of McDermott’s dealings with Scott to obtain information as to when and what times the raid would be made on these clubs. You will hear evidence of the implication of the accused Feeley with the accused McDermott in these clubs, that they were partners and had other dealings together and they were associated together, and the Crown is alleging that on that evidence, which will be submitted to you, there is only one inference you gentlemen can draw—that they were all associated together and that for a common purpose and for a common interest they conspired to obtain information from Constable Scott of the anti-gaming squad, and that for the unlawful purpose as set out in the indictment. (The italics are mine.)
The evidence for the Crown was led and received and was similar to the evidence that had been given in the trial before Spence J. except that some of the evidence at the first trial was omitted at the second trial.
The next matter of importance to note is what transpired at the conclusion of the Crown’s case. Mr. Hartt on behalf of Wright renewed the application to file as an exhibit the record of the trial before Spence J. The discussion between Donnelly J. and Mr. Hartt is as follows:
Mr. HARTT: I understand at the beginning of this trial an application was made by Mr. Sedgwick, then counsel for Mr. Feeley, that the copy of the transcript of the evidence of the former trial of these three accused persons should be entered as an exhibit in this case. I understand that at that time you made a ruling that you would not allow it in at that stage as an exhibit, but you would allow it to be filed with the Court.
I subsequently was informed that the copy that had been furnished to you was a copy that had been marked by some other person and I received a copy to-day that was not in that condition from the Court of Appeal and I would ask your lordship to allow me to file that copy with the Court.
HIS LORDSHIP: As an exhibit?
Mr. HARTT: My application is as an exhibit.
HIS LORDSHIP: What have you to say as to whether it should be filed as an exhibit or not? I am giving you this opportunity of arguing this. It was argued on behalf of the other accused earlier. In view of the fact you were not present I consider you should have an opportunity of making a presentation at this time.
Mr. HARTT: I will be brief.
My submission is that the defence which arises from a plea of not guilty and res judicata is one which I will submit is open to us in this case. With regard to that defence it is my understanding that it is a question, first of all, for your lordship whether or not the evidence in this trial—whether or not the issue in this trial is identical to the issue previously and is judicially determined.
HIS LORDSHIP: No, that is the plea of autrefois acquit or autrefois convict, but not the basis of res judicata. You may have different issues but some essential fact which is common to the two issues on which a decision has been given; it is certainly not the basis of res judicata.
Mr. HARTT: I think res judicata is a wider matter than autrefois acquit. HIS LORDSHIP: In my view it covers the situation entirely. There is some relation but it is a different principle.
Mr. HARTT: If I may put it this way—it is a factual issue which was directly placed before a competent tribunal and it was determined and it is not open to one of the parties to the original inquiry to raise it again. It is my submission to your lordship by reference to the charge in the first trial, to the manner of procedure adopted in relation to that charge, and the issue that eventually went to the jury, the factual issue that went to the jury, realistically went to the jury, that is the same issue that this jury is being asked to determine. If I am right in that, it is my submission that the issue is originally for your lordship, and then if you do not think the jury should be directed in relation to it then it becomes an issue for the jury. On that basis it is my submission that this transcript should be marked as an exhibit in the trial because I see no other way how the jury can ascertain what the real issue was at the first trial, the real factual issue.
My application is an alternative one, that it be marked as an exhibit in the trial for all purposes, and if your lordship does not accede to that request that it be marked as an exhibit before the Court in order to allow me to argue the question of defence before your lordship.
HIS LORDSHIP: Mr. Hartt, I am of the same opinion I was earlier, that the transcript should not be filed as an exhibit. It should not be available to the jury in the jury room. In my opinion that applies even though the evidence in the two trials is exactly the same. It is quite apparent that in this trial there was not as much evidence called as there was in the other trial. Witnesses were called in the other trial who did not testify in this trial. If that evidence was filed as an exhibit the jury would have the evidence of those witnesses before them. In my opinion that would be most improper. If the transcript of the proceedings in the earlier trial went to the jury in their jury room, it is most likely that the jury would dispose of the matter, not on the evidence which they heard at this trial and on which they are sworn to examine the matter, but on the written transcript which they would have before them. Being human beings and having the written transcript of a previous trial, if their memory is at all vague as to what a witness said at this trial, they would consider the evidence which was given at a previous trial.
These accused must be tried on the evidence tendered during this trial and not on the evidence during the previous trial. I must refuse your application to have the transcript filed as an exhibit. I told counsel at the opening of the trial, when this matter was argued, I was quite content to have the transcript filed with the Court for use of counsel