Skogman v. The Queen

Skogman v. The Queen
Collection
Supreme Court Judgments
Date
1984-07-26
Report
[1984] 2 SCR 93
Case number
17031
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha
On appeal from
British Columbia
Subjects
Criminal law
Prerogative writs
Notes
SCC Case Information: 17031
Decision Content
SUPREME COURT OF CANADA
Skogman v. The Queen, [1984] 2 S.C.R. 93
Date: 1984-07-26
Larry Cliff Skogman Appellant;
and
Her Majesty The Queen Respondent.
File No.: 17031.
1982: November 22; 1984: July 26.
Present: Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law — Preliminary hearing — Committal for trial — Charge of conspiracy — Whether any evidence of conspiracy involving the accused — Whether certiorari available to quash committal if no evidence on an essential ingredient of the charge — Criminal Code, R.S.C. 1970, c. C-34 (as am. by R.S.C. 1970 (2nd Supp.), c. 2, s. 8), s. 475.
Certiorari — Committal for trial — Charge of conspiracy — Application to quash committal for trial — Whether evidence supporting the committal — Whether certiorari available if no evidence on an essential ingredient of the charge — Criminal Code, R.S.C. 1970, c. C-34 (as am. by R.S.C. 1970 (2nd Supp.), c. 2, s. 8), s. 475.
Appellant with two others was charged with conspiracy to use a forged document contrary to s. 326 of the Criminal Code. At the preliminary hearing, the Provincial Court Judge was satisfied that there was sufficient evidence upon which a jury properly instructed could convict and accordingly committed the appellant for trial. Appellant successfully petitioned the Supreme Court of British Columbia for certiorari to quash the committal for trial on the ground that there was no evidence before the Provincial Court Judge of his membership in the conspiracy, an essential ingredient of the offence charged, and that therefore, it was beyond the Provincial Judge's jurisdiction to commit in the circumstances. On appeal, the Crown conceded that there was no evidence of a conspiratorial agreement but argued that, in any event, certiorari did not lie to review a committal order under s. 475 of the Code in circumstances where there was no evidence to support that order. The Court of Appeal set aside the order to quash. Hence this appeal.
[page 94]
Held (Beetz, McIntyre and Chouinard JJ. dissenting): The appeal should be allowed.
Per Dickson, Estey, Lamer and Wilson JJ.: The committal of an accused for trial in the absence of evidence on an essential ingredient of the charge constitutes a jurisdictional error reviewable on certiorari. Under section 475 of the Criminal Code, a judge sitting on a preliminary inquiry is called upon to form an opinion as to whether or not the evidence is sufficient to put the accused on trial. "No evidence" on an essential element of the charge can never amount to "sufficient evidence" under s. 475. The Court must independently assess the record to determine whether there was any evidence to support the committal: it is not bound to accept the Crown's view of the evidence or its submission. The parties cannot alter the record nor convert the appeal into a request for an advisory opinion. Here, where there was some evidence of the accused's membership in the conspiracy, the reviewing judge erred in quashing the committal order. The Crown, however, in the exercise of its enforcement discretion, took as its sole position both here and below that even in the absence of any evidence of an essential element of the charge no review of the decision to commit lay by certiorari; and which position was tantamount to a submission of a reference on a point of law. Instead of seeking a reversal of the order on a ground known to law, the Crown is trying to extend a principle or even to establish new law. This Court, in finding that the order of the reviewing judge should not have been invalidated by the Court of Appeal on the basis advanced by the Crown, is free to restore that order and so leave the Crown in the same position as if it had elected not to appeal the order of the reviewing judge. The prosecutorial arm of the state holds the view that there is no evidentiary basis for the charge against this accused and accordingly he should not be put on trial.
[Re Martin, Simard and Desjardins and The Queen (1977), 20 O.R. (2d) 455, affirmed sub nom. Martin v. The Queen, [1978] 2 S.C.R. 511; Re Guttman and The Queen (1981), 64 C.C.C. (2d) 342; Procureur général du Québec v. Poirier, [1981] C.A. 228, sub nom. Re Poirier and The Queen (1981), 62 C.C.C. (2d) 452; Re Leroux and The Queen (1978), 43 C.C.C. (2d) 398; Re Robar and The Queen (1978), 42 C.C.C. (2d) 133; Re Mackie and The Queen (1978), 43 C.C.C. (2d) 269;
[page 95]
Stillo v. R. (1981), 22 C.R. (3d) 224; Forsythe v. The Queen, [1980] 2 S.C.R. 268; Patterson v. The Queen, [1970] S.C.R. 409; R. v. Nat Bell Liquors Ltd., [1922] 2 A.C. 128; R. v. Botting, [1966] 3 C.C.C. 373; R. v. Norgren (1975), 27 C.C.C. (2d) 488; United States of America v. Shephard, [1977] 2 S.C.R. 1067; Douglas Aircraft Company of Canada Ltd. v. McConnell, [1980] 1 S.C.R. 245; Hodgkinson v. Fernie (1857), 3 C.B. (N.S.) 189; Re King and Duveen, [1913] 2 K.B. 32; Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382; Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; City of Toronto v. Polai (1969), 8 D.L.R. (3d) 689; R. v. Kopan (1975), 3 B.C.L.R. 102, referred to.]
APPEAL from a judgment of the British Columbia Court of Appeal (1982), 66 C.C.C. (2d) 14, [1982] 3 W.W.R. 367, allowing the Crown's appeal from a judgment of Bouck J. (1981), 62 C.C.C. (2d) 385, allowing appellant's application for certiorari to quash his committal for trial. Appeal allowed, Beetz, McIntyre and Chouinard JJ. dissenting.
B. A. Crane, Q.C., and Christopher Brennan, for the appellant.
A. M. Stewart, for the respondent.
The judgment of Dickson, Estey, Lamer and Wilson JJ. was delivered by
ESTEY J.—The essential characteristic of this appeal is derived from the stance adopted by the Crown here and below, namely that certiorari does not lie for the review of a committal order under s. 475 of the Criminal Code even where there is no evidence to support the order committing the accused for trial. The Crown factum on this point in this Court stated:
In the Court of Appeal, the Crown took the position that this case should be viewed as a case in which there was "no evidence" to support the justice's opinion that the accused should be committed for trial (A.B. 283). The issue before the Court of Appeal, said the Crown, was the scope of the remedy available by way of an application for an order in the nature of certiorari.
[page 96]
This was the ultimate response of the Crown to the grounds upon which the appellant-accused brought his motion in the Supreme Court of British Columbia for an order in the nature of certiorari to quash the order of committal.
THAT proof of an "agreement" is an essential ingredient of the charge alleged against LARRY CLIFF SKOGMAN; that there was no evidence led at the preliminary inquiry to prove such an "agreement" and that without such evidence it was beyond the jurisdiction of His Honour Judge Giles to commit LARRY CLIFF SKOGMAN to stand trial.
This litigation has proceeded, since the order of Bouck J., on the footing that there was no evidence of the conspiratorial agreement which, of course, is the bedrock requirement in a charge of conspiracy.
The following is the history of these proceedings in the courts below.
a) The appellant was committed to trial, after a preliminary inquiry, on a conspiracy charge. The committing judge was "satisfied that there [was] sufficient evidence to put to a jury and sufficient evidence upon which a jury properly instructed could convict". In his reasons for committal, the learned judge adopted the submissions of Crown counsel including the submission that there was evidence from which an inference could be drawn that the appellant had joined the common purpose of tendering forged bonds.
b) The appellant petitioned the Supreme Court for an order in the nature of certiorari to quash the committal for trial. The ground upon which relief was sought was that the committing judge exceeded his jurisdiction by committing the appellant to trial when there was no evidence of an essential element of the offence with which he was charged, that is, of a conspiratorial agreement.
[page 97]
c) Bouck J., who heard the petition to quash, held that:
i) there was no evidence that the accused was a member of the conspiracy alleged;
ii) a committal order can be quashed by certiorari when there is a loss of jurisdiction during the preliminary inquiry;
iii) in this case the committing judge lost his jurisdiction when he committed the accused for trial when there was no evidence of his membership in the conspiracy alleged.
Bouck J. accordingly quashed the committal order.
d) The Crown appealed to the British Columbia Court of Appeal from the order quashing the committal for trial. The Crown formally abandoned, before the Court of Appeal, the ground of appeal as to whether there was sufficient evidence before the committing judge to support a committal for trial. The appeal was then argued on the basis that Bouck J. was correct in finding that there was no evidence that the appellant had joined the conspiracy.
e) The British Columbia Court of Appeal allowed the Crown's appeal and restored the committal for trial. One cannot be certain whether the majority opinion proceeded on the basis that, in fact and in law, there was 'no evidence' or 'some evidence' in relation to the essential elements of the charge. On the one hand, it is stated by the majority:
If, as is assumed for the purposes of this appeal, there was no evidence to support the Provincial Court Judge's opinion that the evidence was sufficient to put the respondent on trial, the Judge made an error in the exercise of a jurisdiction which he did possess.
On the other hand, this statement is followed by the statement:
I think the Chambers Judge erred in substituting his opinion of the sufficiency of the evidence for the opinion of the Provincial Court Judge on that question.
[page 98]
The concurring opinion by Lambert J.A. on this point includes the statement:
This is not a case where there is no evidence at all in the sense of an entire absence of proper material as the basis for the foundation of a judicial opinion that the evidence was sufficient to put the accused on trial. Nor is this a case where there is no evidence to provide a platform for the committing Judge's exercise of his powers, or for his assumption of jurisdiction in accordance with the jurisdictional prescriptions of s. 475 of the Criminal Code.
In restoring the committal order, the British Columbia Court of Appeal held that the committing judge did not lose his jurisdiction in committing the appellant and that certiorari does not lie in the circumstances. Lambert J.A. concurring, did not wish to adopt what the learned justice took to be obiter in the decision of this Court in Martin v. The Queen, [1978] 2 S.C.R. 511, that a committal order, unsupported by any evidence on each essential issue of the charge, can be quashed by writ of certiorari. The learned justice preferred to follow R. v. Kopan (1975), 3 B.C.L.R. 102, in allowing the appeal.
f) Argument before this Court, by all counsel, proceeded on the basis that Bouck J. was correct in finding that there was no evidence of an essential element of the offence. In its factum, at p. 4, para. 5, the Crown stated that it was proceeding "on the basis that the issue before this Court is whether or not certiorari should be granted in such circumstances."
This calls into question the reach of the writ of certiorari as a tool for the review of committals for trial at preliminary hearings. In its earliest application by the courts, the prerogative or royal writs, including certiorari, were a mechanism whereby the Royal Courts of Justice maintained a surveillance over the conduct of the inferior tribunals of the land. Gradually, as the organization of justice and the judiciary developed, these review mechanisms were broadened in their reach and
[page 99]
refined in the degree of control until, by 1878, certiorari was available not only for the review of jurisdictional transgressions by statutory tribunals, but also for errors committed by those tribunals in the course of the discharge of their assigned function, where such errors were apparent on the face of the record. See Williams J. in Hodgkinson v. Fernie (1857), 3 C.B. (N.S.) 189. During this same epoch, there developed a parallel procedure by way of application to a court of general jurisdiction for the judicial control of non-statutory tribunals and emanations of the state which did not have the attributes of an inferior court. Limitations, as will be seen in Re King and Duveen, [1913] 2 K.B. 32, per Channell L. J., were gradually introduced whereby certiorari review was precluded in the case of a tribunal determining a question of law submitted to it for determination as the primary issue by the parties to the proceeding. Other refinements in this branch of the law have come and gone; for example, the concept of collateral issues whereby the doctrine of certiorari review was limited to calling into question in the court of general jurisdiction decisions made by the lesser tribunals which were a prelude to the exercise of the primary or principal jurisdiction of the body whose conduct was under review. We are no longer concerned with such matters: Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382; Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation., [1979] 2 S.C.R. 227.
In the result, certiorari, or the newer term of judicial review, runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term 'jurisdiction' being given its narrow or technical sense. In the absence of a privative clause, the Court may also review for error of law on the face of the record. However, even then, under the most recent authorities, the error must assume a jurisdictional dimension.
[page 100]
These authorities and the development and Darwin-like elimination of subdoctrines are reviewed in Douglas Aircraft Company of Canada Ltd. v. McConnell, [1980] 1 S.C.R. 245, particularly at pp. 265-78. It is clear, however, that certiorari remains available to the courts for the review of the functioning of the preliminary hearing tribunal only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction (see Forsythe v. The Queen, [1980] 2 S.C.R. 268). It need only be added by way of emphasis that such certiorari review does not authorize a superior court to reach inside the functioning of the statutory tribunal for the purpose of challenging a decision reached by that tribunal within its assigned jurisdiction on the ground that the tribunal committed an error of law in reaching that decision, or reached a conclusion different from that which the reviewing tribunal might have reached.
This brings me to the question of the reviewability by the writ of certiorari of the conduct of a judge sitting in preliminary hearing under s. 475 of the Criminal Code. Section 475 states:
475. (1) When all the evidence has been taken by the justice he shall,
(a) if in his opinion the evidence is sufficient to put the accused on trial,
(i) commit the accused for trial, or
(ii) order the accused, where it is a corporation, to stand trial in the court having criminal jurisdiction; or
(b) discharge the accused, if in his opinion upon the whole of the evidence no sufficient case is made out to put the accused on trial.
At minimum, this section calls upon the presiding justice to form an opinion as to whether evidence is "sufficient" or whether "no sufficient case is made out" so as to justify a conclusion by the presiding
[page 101]
justice "to put the accused on trial" or not to commit the accused to trial. There is no rule within the statutory framework adopted by Parliament for arbitrary action by the tribunal. The question therefore arises as to whether or not the reviewing judge can commit an accused for trial where there is no evidence on an essential element on a charge with which the accused is faced. In applying the test of the applicability of certiorari in such circumstances, we are not concerned with the older test of the presence or absence of an error of law on the face of the record, but rather we are concerned with ascertaining whether the preliminary hearing tribunal has discharged its assigned jurisdiction under s. 475. This Court, speaking through Judson J. in Patterson v. The Queen, [1970] S.C.R. 409, stated at p. 411 with reference to the review of preliminary hearing:
... there is only one ground for action by the reviewing Court and that is lack of jurisdiction.
This is the starting point, the theorem of review applicable in determining the availability of the prerogative writ of certiorari for the purpose of calling into question a committal for trial under s. 475. Spence J., in dissent, agreed, however, with regard to the availability of certiorari when he said, at p. 419:
I am, however, of the view that certiorari does lie to quash a magistrate's committal for trial when he has exceeded his jurisdiction or when he has refused to exercise his jurisdiction.
Patterson emerged from this court after an extensive review of the subject in the provincial Courts of appeal; vide R. v. Botting, [1966] 3 C.C.C. 373 (Ont. C.A.) and R. v. Norgren (1975), 27 C.C.C. (2d) 488 (B.C. C.A.) All of these authorities draw their principal support from the judgment of Lord Sumner in R. v. Nat Bell Liquors Ltd., [1922] 2 A.C. 128. While that judgment of the Privy Council deals with the review of a conviction under a provincial statute, it has long been regarded as applicable in determining the review jurisdiction in the superior court of the proceedings at preliminary hearing: Re Martin, Simard and Desjardins and The Queen (1977), 20 O.R. (2d) 455, at p.
[page 102]
486. Lord Sumner, at p. 144 in the Appeal Cases, said in part:
On certiorari, so far as the presence or absence of evidence becomes material, the question can at most be whether any evidence at all was given on the essential point referred to. Its weight is entirely for the inferior Court:...
Some complication has, on occasion in the past, resulted from the presence in the Nat Bell judgment, supra, of observations which were directed at the position of the reviewing tribunal where the action below consisted not of a preliminary hearing committal or discharge but rather a conviction in a quasi-criminal process conducted in a tribunal of restricted jurisdiction, which was the actual case before the Privy Council in Nat Bell. The Ontario Court of Appeal in Martin, supra, in examining a certiorari review of a preliminary hearing, stated at pp. 486-87:
… we conclude that the learned Provincial Court Judge here acted within his jurisdiction, unless it can be said that he committed these respondents on the counts specified without any evidence at all, in the sense of an entire absence of proper material as a basis for the formation of a judicial opinion that the evidence was sufficient to put the accused on trial. That is quite a different question from the question "whether in the opinion of the reviewing tribunal there was evidence upon which a properly instructed jury acting judicially could convict". It remained, therefore, to examine the excerpts of evidence, as placed before this Court from the lengthy transcript taken at the preliminary hearing, in order to determine whether there was any evidence at all on which the committing tribunal was able to base its opinion to commit, as required by the terms of the Code
The Court of Appeal of Ontario then concluded:
... in the case of each of the three respondents there is sufficient evidence relating to the charges and the counts in issue to call upon the learned Provincial Judge to form an opinion as to whether there was sufficient evidence to commit the accused for trial, pursuant to
[page 103]
s. 475 . . . . Having properly directed his mind to the evidence and to the question of whether there was "sufficient evidence" to commit, his decision is not subject to review.
(Emphasis added.)
An appeal was dismissed by this Court, [1978] 2 S.C.R. 511, the Chief Justice concluding as follows, at p. 514:
... the review on sufficiency must be a review to determine whether the committal was made arbitrarily or, at the most, whether there was some evidence upon which an opinion could be formed that an accused should go to trial.
More recently, this Court engaged the problem of review of the preliminary hearing process in Forsythe v. The Queen, supra. Again it was Chief Justice Laskin, speaking for the Court, and in reference to Patterson, supra, who stated at pp. 271-72:
In speaking of lack of jurisdiction, this Court was not referring to lack of initial jurisdiction of a judge or a magistrate to enter upon a preliminary inquiry. This is hardly a likelihood. The concern rather was with the loss of this initial jurisdiction and, in my opinion, the situations in which there can be a loss of jurisdiction in the course of a preliminary inquiry are few indeed. However, jurisdiction will be lost by a magistrate who fails to observe a mandatory provision of the Criminal Code: see Doyle v. The Queen, [1977] 1 S.C.R. 597. Canadian law recognizes that a denial of natural justice goes to jurisdiction:…
A helpful comparison was drawn by Ritchie J. in United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080, between the standard applied by the tribunal under s. 475 (s. 475(1)) and the function performed by a judge sitting at trial with jury:
I agree that the duty imposed upon a 'justice' under s. 475(l) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is 'sufficient' to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.
The Ontario Court of Appeal in Stillo v. R. (1981), 22 C.R. (3d) 224, was faced with the issue
[page 104]
of reviewability of a committal where there was no evidence capable of corroborating a minor's testimony in a charge of indecent assault. The reviewing court, the High Court of Justice of Ontario, had quashed the committal because of the jurisdictional error committed by the tribunal at the preliminary hearing in committing the accused. Morden J.A., speaking for the Court of Appeal of Ontario, stated, at p. 227:
In our view, there was no evidence in this case satisfying these requirements. There was, in law, no evidence at all upon which a finding of guilt could be made. Mr. Watt conceded, accurately and fairly, in our view, that if failure to meet a mandatory corroboration requirement has to result in a case being taken from a jury, which it does, then he could not reasonably argue that a different result should occur with respect to a preliminary inquiry, unless it could be said that the error fell short of being of a jurisdictional nature. In our view, it is established that complete absence of evidence does amount to jurisdictional error.
The courts of this country have, since the judgment in Martin, supra, generally adopted the rule that a committal of an accused at a preliminary, in the absence of evidence on an essential ingredient in a charge, is a reviewable jurisdictional error. See: Re Guttman and The Queen (1981), 64 C.C.C. (2d) 342 (Que. S.C.); Procureur général du Québec v. Poirier, [1981] C.A. 228, sub nom. Re Poirier and The Queen (1981), 62 C.C.C. (2d) 452; Re Leroux and The Queen (1978), 43 C.C.C. (2d) 398 (Que. S.C.); Re Robar and The Queen (1978), 42 C.C.C. (2d) 133 (N.S.C.A.), leave to appeal to the Supreme Court of Canada refused, October 3, 1978, [1978] 2 S.C.R. x; Re Mackie and The Queen (1978), 43 C.C.C. (2d) 269 (Ont. H.C.); Stillo v. R., supra. "No evidence" on an essential element of the charge against the accused cannot amount to "sufficient evidence" under s. 475. In my view, this is the state of the law in this country on this issue.
[page 105]
I return, therefore, to the essential characteristic of this proceeding, accepting for the moment the concession by the prosecutorial authority that there is no evidence whatever of the involvement of the accused in the allegedly conspiratorial agreement which underlies and sustains, if it be sustainable, the charge before the preliminary hearing tribunal. In my view, with all respect to those including the courts below who may hold the view to the contrary, a committal cannot survive in these circumstances. The purpose of a preliminary hearing is to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process. In addition, in the course of its development in this country, the preliminary hearing has become a forum where the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present. The status of the preliminary inquiry in the United Kingdom is discussed by Patrick Devlin in The Criminal Prosecution in England (1960), at p. 10:
The preliminary inquiry before the magistrates is now a purely legal proceeding; it was designed as an instrument of the prosecution for finding the culprit and preparing the evidence against him; it has become a shield for the defence, allowing the defendant to ascertain precisely what the material is that is to be used against him and relieving him from the expense and odium of a trial if in the judgment of impartial persons there is not enough evidence to justify it.
The development of the institution of the preliminary hearing has taken a slightly different course in our country:
The Canadian preliminary inquiry stems from an inquisitorial system of criminal investigation and prosecution in England, in which justices of the peace originally performed all of the investigative functions now performed by the police. The role of the justice of the peace gradually changed and eventually began to take on judicial characteristics. At the same time the inquiry over which the justice of the peace presided also changed, becoming mainly a judicial examination of the justification and need for pre-trial detention of the
[page 106]
accused as well as an examination of the need for a trial itself. In this proceeding the prosecution was required to present its case, or at least to present sufficient evidence to establish a prima facie case. [Footnotes omitted.]
(Law Reform Commission of Canada Study Report: Discovery in Criminal Cases (1974), at p. 8.)
It is interesting to go back to a description applied by G. Arthur Martin, Q.C., to the preliminary hearing in Canada:
The preliminary hearing has two aspects. Its primary purpose, of course, is to ascertain whether or not there is sufficient evidence to warrant the accused being placed upon his trial. In determining this, a magistrate, who is conducting a preliminary hearing is not determining whether or not the accused is guilty or not guilty. His function is to ascertain whether or not there is sufficient evidence to induce the belief in the mind of a cautious man that the accused is probably guilty. Therefore, considerations of reasonable doubt have no application at this stage of the proceedings.
[…]
From the point of view of defence counsel the preliminary hearing has another aspect. It affords counsel an opportunity of ascertaining the nature and the strength of the case against his client and it may be likened in that respect to an Examination for Discovery.
(G. Arthur Martin, Q.C.: "Preliminary Hearings", Special Lectures of the Law Society of Upper Canada, 1955, p. 1.)
In the course of a preliminary hearing, evidence may be adduced through witnesses, exhibits, or admissions. The purpose of adducing evidence is to enable the judge to exercise his jurisdiction by making determinations of fact, applying the law to those facts, and finally, to exercise his discretion to commit or discharge the accused. Where the record established in the preliminary hearing does not include evidence relating to each essential element of the charge brought against the accused, a committal of the accused to stand trial can be brought forward by way of a writ of certiorari to a superior court and can be quashed. I return then to explore the precise effect on these proceedings of the Crown's concession made here and in the Court of Appeal.
[page 107]
The argument, agreement or undertaking, as the case may be, of a Crown agent as to the consequence to be drawn from testimony taken at trial is not in any way binding upon the Court. Indeed, quite the opposite is true. The Court still must be satisfied that the evidentiary test has been passed or failed, as the case may be, as a matter of law. This includes a burden of proof in some cases and in others the presence or absence, as here, of some evidence to support a committal under s. 475. Neither party, separately or jointly, can alter the record nor convert the appeal into a request for an advisory opinion. It follows that the court is not in any way bound to accept the Crown's view of this evidence nor the Crown submission of law based upon the Crown's view of that evidence. Rather, the Court must independently assess the record to determine whether there was any evidence to support the committal for trial.
In my view, here there was some evidence of the essential element of an agreement. The evidence at the preliminary hearing reveals that the accused came into possession of the bogus bond which had been prepared by others alleged to be the accused's co-conspirators. The evidence further revealed that at an earlier time a person alleged to be a co-conspirator had caused the counterfeit bond to be created and had unsuccessfully attempted to persuade an employee at a branch of a trust company to cash the counterfeit bond. The accused, according to the evidence, later took the bogus bond to the same branch of the trust company where the aforementioned employee worked, and cashed the bond. It should here be noted that the evidence includes a denial by the unindicted co-conspirator and by the employee of the trust company, unsuccessfully importuned as aforesaid, of any knowledge of or relationship with the accused. The evidence further reveals that the accused, in presenting the bond at the trust company, did not approach that employee for the purpose of cashing the bond. From this evidence it is remotely but nonetheless possible, in my view, to distill an agreement between the accused and the creators of the counterfeit bond to convert the bond to cash by presenting it to a trust company or a bank. This evidence approaches the traditional
[page 108]
expression "a scintilla of evidence" but falls short of what may be classified as fanciful. Consequently, there can be gleaned from the record 'some evidence' to support the action of committal. In so stating, it must always be added that the "some evidence" and "no evidence" rules must relate to all the essential elements of the charge in question.
The conclusion which I have reached, that there was a scintilla of evidence to support the committal of the appellant to trial, brings us back full circle to the unusual procedural history of this case. On appeal, the Crown did not seek to impeach the finding of Bouck J. that there was 'no evidence' of a conspiratorial agreement. Rather, it was argued that in any event certiorari was not available to review for 'no evidence' at all on the essential elements of the charge. The executive branch of government has assumed primary responsibility for the enforcement of the criminal law. The historic ascendency of the executive branch as the agency for the enforcement of criminal law in the community is recognized in Canada today, in fact and in law, in the Criminal Code where it is given an ascendency at critical junctures of a prosecution over the private prosecutor. This branch may, in its wisdom, decide to lay or not to lay a charge. It might decide at any stage in the process to withdraw the charge. The Attorney General of the province, as represented by the Crown agent in the courtroom, might, for example, decide to withdraw a charge in the course of a preliminary hearing. Similarly, the charge might be withdrawn with the permission of the Court in the course of a trial. The following dicta of Schroeder J.A. in City of Toronto v. Polai (1969), 8 D.L.R. (3d) 689 in a different context, accurately, in my view, reflects the importance of the role assumed by the executive with respect to criminal prosecutions (at p. 697):
The decision whether or not the Attorney-General should prosecute or sue is a matter for him, and the
[page 109]
Courts have no power to question his right to do so or to refrain from doing so as distinct from his right to relief.
The Attorney-General is in a different position from the ordinary litigant, for he represents the public interest in the community at large; …
The Crown agent in this case might have decided, in its exclusive discretion as the public enforcement agency of the community, the executive branch, not to oppose the application for an order to quash; or the Crown might have decided not to appeal from the quashing order. Here the Crown exercised its enforcement discretion by asking the Court of Appeal, and this Court as well, to set aside the quashing order on a ground not known to the law. No other request was made by the Crown, and indeed, the Crown expressed its agreement that the Court should dispose of the appeal on the one ground selected by the Crown. The sole position taken by the Crown on this appeal in this Court, and apparently in the court below, is tantamount to a submission of a Reference on a point of law to this Court. The Crown does not here seek a reversal of the order of the reviewing judge of first instance on a ground known to the law. Rather the Crown seeks to establish a new or extended rule of law.
Whether there is, in the judicial sense, 'no evidence' revealed in the record, is a question of law. In finding there was 'no evidence' in the record at the preliminary hearing, the learned reviewing judge committed an error of law. Such a finding, unsupported by the record, is, in my view, a reversible error which, in the absence of other overriding considerations, would dispose of the appeal.
There now remains to be examined the question as to whether these proceedings reveal a further and finally controlling factor which ordains another disposition of the proceeding. This Court, on the review of the proceedings below, must conclude that, while the committing judge was in law correct in his order under s. 475, and the reviewing judge was wrong in law in quashing the committal, the quashing order was attacked by the
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Crown on a basis unknown to the law. The Crown in its executive role can, at that point, elect not to appeal or to appeal on a limited basis, or to appeal from the order on all possible grounds known to the law. The Crown role continues at this stage in the same way as in the earliest stages of the process when it determines whether to lay a charge, against whom the charge should be laid, and if so, whether to proceed to or by way of the preliminary hearing.
In determining the proper disposition to be made of this appeal, one should not overlook the effect the position taken by the Crown in the appellate process has had, not only upon the criminal process itself but upon the accused. The accused has not been called upon to address the issue of 'no evidence' in either the Court of Appeal or in this Court. He has not been called upon to meet the 'no evidence' or 'some evidence' issue because of the quasi-reference approach taken by the Crown in the form of an appeal from the order of Bouck J.
As a result of all these proceedings and steps, this Court, making the order which is respectfully found to be the order which the Court of Appeal should have made, finds that this appeal should be allowed and the order of the reviewing judge restored. This is the disposition which must, in law, follow from the course chosen by the executive branch in the discharge of its function as an agency charged with law enforcement in the province. The Crown having pursued this course, as in its wisdom it is free to do, the result must be the restoration of the order quashing the committal. The focus of this entire process is on the liberty of the subject. The appellant stands accused under the criminal law. The agency charged with the administration of justice on behalf of the Crown in the right of the province has, upon its investigation and initial prosecutorial steps, determined that the community is possessed of no evidence that the
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accused is guilty of the conspiracy charged. Can the community be expected to tolerate, let alone support, a law which permits a person, against whom the state enforcement agency claims possession of no evidence of guilt as charged, to be prosecuted on such a charge with the full power and resources of the state? This is not an absence of process; it is an abandonment of process. It is fundamental to our criminal law traditions that no citizen shall be called upon to answer a charge in this stark circumstance. Any other criminal law technique is but organized tyranny focussed on the wrongly accused in the view of the arm of the state empowered to initiate and process that accusation. Section 475 cannot, in my opinion, be properly construed in the tradition of statutory interpretation of criminal statutes as requiring such a startling result in a free society.
It follows that in doing so, the Court has not treated itself as bound by, nor indeed in any way has it acted upon, the submission by the Crown that there was no evidence of each essential element of the charge. Rather, the Court has responded to the only position taken by the prosecution.
I therefore would allow the appeal and restore the order of Bouck J. in Chambers in the Supreme Court of British Columbia.
The reasons of Beetz, McIntyre and Chouinard JJ. were delivered by
MCINTYRE J. (dissenting)—This appeal again raises the question of an application in the nature of certiorari to quash a committal for trial after preliminary hearing where it was agreed between the Crown and the appellant that there was no evidence adduced before the committing Provincial Court Judge on an essential ingredient of the offence charged.
The appellant was charged with two others named Grenon and Pellerin, and others unknown, with conspiracy to use a forged document as if it were genuine, contrary to s. 326 of the Criminal Code. At the opening of the preliminary hearing a
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stay of proceedings was entered in respect of Grenon, who gave evidence for the Crown, and Pellerin did not appear. The hearing proceeded in respect of the appellant Skogman.
The evidence revealed that Grenon worked in the office of the Queen's Printer in Victoria. Early in the year 1980 he stole an unnumbered British Columbia School Di