Papalia v. R.

Papalia v. R.
Collection
Supreme Court Judgments
Date
1979-03-06
Report
[1979] 2 SCR 256
Judges
Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Pratte, Yves
On appeal from
Ontario
Subjects
Criminal law
Evidence
Decision Content
Supreme Court of Canada
Papalia v. R., [1979] 2 S.C.R. 256
Date: 1979-03-06
John Papalia Appellant;
and
Her Majesty The Queen Respondent.
Her Majesty The Queen Appellant;
and
Vincent Cotroni Respondent.
1978: June 12 (Cotroni), June 12, 13 (Papalia); 1979: March 6.
Present: Martland, Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Conspiracy—Elements of offence—Common object—Extortion—Conspiracy to possess money obtained by extortion—Criminal Code, s. 305.
Evidence—Admissibility—Best evidence rule—Tape recordings—Re-recordings—Admissibility of re-recordings—Requirement of proof of authenticity and accuracy.
Criminal law—Indictable offences—Duplicity—Criminal Code, s. 519(1)(b).
Papalia and Cotroni were convicted with others, Swartz and Violi, on an indictment alleging that they unlawfully did conspire together to have possession of some $300,000 more or less, knowing that the said $300,000 was obtained by the commission in Canada of the indictable offence of extortion. The Court of Appeal quashed the convictions of Violi and Cotroni and entered acquittals, but dismissed the appeals of Swartz and Papalia. These two further appeals, by Papalia from conviction and by the Crown from the acquittal of Cotroni, were from the unanimous judgments of the Court of Appeal.
Swartz had been involved with a Toronto stock promoter (Bader) who in turn was associated in some business venture with a man named Rosen. Swartz and Bader borrowed funds from Rosen for the purpose of lending money at high rates of interest. The funds passed from Rosen to Bader to Swartz. Bader had only the word of Swartz that the funds were actually being loaned. Subsequently after Rosen had advised Bader that he would make no further advances Swartz told Bader that the loans which he (Swartz) was supposed to have arranged did not exist. Swartz also advised Bader of threats, which had been relayed to him through someone, whom Bader believed to be John Papalia. Bader, and subsequently Rosen, believed Swartz and Rosen became convinced that Bader’s life was in peril. Rosen advanced $175,000 to Swartz and Bader to save Bader from harm (Swartz having told Bader that he, Swartz, had already paid $120,000 from moneys obtained from Rosen for lending purposes towards the $300,000 which Swartz alleged “the people in Montreal” had lost in a stock collapse which they blamed on Rosen). Swartz’s improved life-style gave rise to suspicion and Bader made some inquiries. At this time however Cotroni and Violi came to believe that their names had been used to acquire funds from Bader. There were conversations involving Cotroni, Violi and Papalia and the evidence of what was going on at that time consisted entirely of recordings of three private conversations, largely in the Calabrese language intercepted by the Montreal Police Department. The first conversation was between Violi and Cotroni; for the second, later the same day, they were joined by Papalia; and the third conversation, some two weeks later, was again between Violi and Cotroni. The Court of Appeal found that the only evidence of agreement between Violi and Cotroni and Papalia that emerged from the recorded conversations was for Papalia to arrange a meeting in Toronto between them or one of them and Swartz; and that presumably at such meeting Swartz would have been made the subject of extortion. The judgment in the Court of Appeal could be read in two ways either that the verdict of the jury was unreasonable and unsupported by the evidence or that there was not one but two conspiracies, the object of the second (involving Violi and Cotroni) being different from that alleged in the indictment.
Held: Both appeals should be dismissed.
Per Spence, Dickson, Beetz and Pratte JJ.: Where, as here, several conspiracies are shown to have been committed the problem is to determine which was the one envisaged by the charge. Whether all or any of those that have been proven are covered by the indictment depends on the construction of the charge.
Proper consideration must be given to the jurisdictional limits of the court before which the indictment is laid; it must be assumed that the indictment was intended to relate to a crime over which the court had jurisdiction rather than to a crime over which it had no jurisdiction. In the present case there existed two conspiracies; that of Papalia and Swartz to have possession of extorted funds and that of Cotroni and Violi (and possibly Papalia) to acquire and have possession of part of the same extorted funds. The indictment might be broad enough to include both conspiracies, but as the second took place only within the Province of Quebec and Ontario had therefore no jurisdiction with respect to it, it must be inferred that this was not the conspiracy described in the indictment. There was evidence to go to the jury on the basis that Papalia and Swartz conspired as charged and Papalia was properly convicted. The only evidence against Cotroni was however in respect of a conspiracy not covered by the indictment.
Per Martland J.: While agreeing that the appeal by Papalia should be dismissed on the basis proposed, the appeal by the Crown against Cotroni should be dismissed for want of jurisdiction. In the absence of any dissent in the Court of Appeal on a question of law, the right of the Crown to appeal further, with leave is restricted by subs. 621(1) of the Criminal Code to an appeal on a question of law. The Court of Appeal here exercised its power to allow further appeal under para. (i) of s. 613(1) rather than under paras. (ii) or (iii). It was suggested that the reasons of the Court of Appeal constituted a finding of “no evidence” and that this raised a question of law on which to base a further appeal. That Court did not however find that there was “no evidence” but rather that the evidence pointed to “a different object”.
Per Ritchie and Pigeon JJ.: The recordings of the three conversations were the only evidence incriminating Violi and Cotroni and these were also essential evidence against Papalia. Transcripts, translated where necessary from Calabrese to English, are part of the record of the case. While the recordings proffered in evidence were re-recordings and it was argued that these should not be admissible in the circumstances the re-recordings were properly admitted. No question was raised as to their authenticity and the onus of showing that the destruction of the originals was done in good faith and explaining the circumstances of the destruction was in this case met by the Crown.
The issue of duplicity was raised by Papalia. There was however no finding of prejudice caused by the alleged duplicity and in view of s. 519(1)(b) of the Code such duplicity or multiplicity do not invalidate an indictment.
Further, the only evidence against Violi and Cotroni was not evidence of the conspiracy alleged and was of conversations in Montreal. There was no evidence that any part of Cotroni’s conspiracy took place or was carried out in Ontario. [D.P.P. v. Doot, [1973] A.C. 807; Paradis v. R., [1934] S.C.R. 165; D.P.P. v. Nock, [1978] 3 W.L.R. 57 (H.L.); R. v. Meyrick and Ribuffi (1929), 21 Cr. App. R. 94 (C.C.A.); Brodie v. The King, [1936] S.C.R. 188; Shumiatcher v. Attorney-General for Saskatchewan (1962), 133 C.C.C. 69 (Sask. C.A.); R. v. Harrison and Burdeyney, [1965] 1 C.C.C. 367 (B.C.S.C.); Re Regina and Marcoux and Desfosses (1973), 13 C.C.C. (2d) 222 (B.C.S.C.); R. v. Greenfield, [1973] 1 W.L.R. 1151 (CCA.); R. v. Dawson, [1960] 1 All E.R. 558 (CCA.); R. v. Warner, [1961] S.C.R. 144; R. v. Cipolla (1965), 46 C.R. 78; Minchin v. The King (1914), 23 C.C.C. 414; R. v. Laroche, [1963] 3 C.C.C 5 rev’d [1964] S.C.R. 667; R. v. Canavan and Busby, [1970] 5 C.C.C 15, leave denied [1970] S.C.R. viii; Cox and Paton v. The Queen, [1963] S.C.R. 500; Archer v. The Queen, [1955] S.C.R. 33; Kienapple v. The Queen, [1975] 1 S.C.R. 729; The Queen v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 3 C.R. (3d) 30; Demenoff v. The Queen, [1964] S.C.R. 79; R. v. Taylor, [1963] S.C.R. 491; R. v. Morabito, [1949] S.C.R. 172; R. v. Kyling, [1970] S.C.R. 953 referred to.]
APPEALS from judgments of the Court of Appeal for Ontario[1] dismissing an appeal by Papalia and allowing an appeal by Cotroni from conviction for conspiracy to possess money obtained by extortion. Both appeals dismissed.
David Doherty, for the Crown.
Clive Bynoe, Q.C., and Douglas Simpson, for the appellant, Papalia.
Robert Carter, Q.C., for the respondent, Cotroni.
MARTLAND J.—With respect to the case of John Papalia v. Her Majesty The Queen, I agree with the conclusion reached by my brothers Pigeon and Dickson that the appeal should be dismissed.
With respect to the case of Her Majesty the Queen v. Vincent Cotroni, in my opinion the appeal by the Crown should be dismissed because this Court does not have jurisdiction to deal with it. In the absence of any dissent in the Court of Appeal on a question of law, the right of the Crown to appeal to this Court, with leave, is restricted by subs. 621(1) of the Criminal Code to an appeal on a question of law. In the Court of Appeal, Jessup, J.A., when dealing with the appeal of Cotroni, said this:
The main ground of appeal of the appellants Violi and Cotroni is that, as against them, the verdict of the jury is unreasonable and cannot be supported by the evidence. In their case I think that argument has to be given effect to. The only evidence of an agreement between them and Papalia that emerges from the recorded conversations is for Papalia to arrange a meeting in Toronto between them or one of them and Swartz. Presumably at such meeting Swartz would have been made a subject of extortion. The theory of the Crown was that Cotroni and Violi joined the existing conspiracy between Swartz and Papalia, but any conspiracy between Papalia, Violi and Cotroni had a different object than that alleged in the indictment. While the roles of the several persons in a conspiracy may be entirely different, they must have a common object. Here the evidence led against Violi and Cotroni points to a different object.
Section 613(1) of the Criminal Code defines the powers of a court of appeal on an appeal from conviction. It provides that the court of appeal:
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
In my opinion the Court of Appeal in this case exercised its power to allow the appeal under para. (i) and not under para. (ii) or para. (iii). The passage cited from the judgment of the Court states that the appellant’s main ground of appeal was that “the verdict of the jury is unreasonable and cannot be supported by the evidence”, using the words of para. (i). He then goes on to say that “that argument has to be given effect to”.
Paragraph (i) refers to the verdict of a jury. Paragraph (ii) empowers a court of appeal to set aside a judgment of the trial court on the ground of a wrong decision on a question of law. The Court of Appeal did not allow the appeal on that ground. Paragraph (iii) is irrelevant in this case. It is suggested that the reasons of the Court of Appeal constitute a finding of no evidence and that this raises a question of law which may come to this Court. The Court of Appeal did not find that there was no evidence to support the conviction. It found that the evidence “points to a different object”. In my view the finding of the Court of Appeal was as to an insufficiency of evidence and not a finding of no evidence at all.
In The Queen v. Warner, [1961] S.C.R. 144, it was held that this Court was powerless to interfere with a judgment of a court of appeal based on the ground that a verdict of a jury should be set aside because it could not be supported by the evidence. Such a finding is one of fact and does not raise a question of law.
For these reasons, it is my opinion that the appeal of the Crown as against Cotroni should be dismissed.
The judgment of Ritchie and Pigeon JJ. was delivered by
PIGEON J.—These two appeals are from unanimous judgments of the Court of Appeal of Ontario affirming John Papalia’s conviction and quashing Vincent Cotroni’s.
Convictions were entered after a jury trial, on October 28, 1976, against all four accused on an indictment charging that:
SHELDON SWARTZ, JOHN PAPALIA, VINCENT COTRONI AND PAOLO VIOLI, between the 1st day of April, 1973, and the 30th day of May, 1974, in the Judicial District of York and elsewhere in the Province of Ontario and in the Province of Quebec, unlawfully did conspire together each with the other and with persons unknown to have possession of $300,000, more or less, knowing that the said $300,000 was obtained by the commission in Canada of the indictable offence of extortion punishable by indictment contrary to Section 423(1)(d) and Section 312(1)(a) of the Criminal Code of Canada.
There was an appeal by each accused. The appeals of Swartz and Papalia were dismissed, those of Cotroni and Violi were allowed. Leave to appeal was granted by this Court to Papalia and to the Crown, but due to Violi’s death the Crown’s appeal is now against Cotroni only. The Court of Appeal issued one set of reasons on all four appeals and it will be convenient to do likewise on the two appeals to this Court.
On the appeals to the Court of Appeal an elaborate agreed statement of facts was filed. In this one reads:
The offence alleged by the Crown involved three distinct stages,. . .
The first stage in the spring of 1973 to August 30th, 1973 involved events leading up to the alleged extortion of $300,000.00 perpetrated on Stanley Bader in Toronto.
The second stage involved observations made by Bader and his girlfriend and certain conversations they had with certain persons in Montreal.
The third stage involved conversations between John Papalia of Hamilton, Vincent Cotroni and Paolo Violi, both of Montreal, which occurred in the City of Montreal. These conversations concerned the sum of $300,000.00 and the events of the first and second stage.
The first conversation mentioned in the last paragraph took place on April 30, 1974 between Violi and Cotroni. For the second, which took place on the same day, they were joined by Papalia. Violi and Cotroni were alone for the third conversation on May 13, 1974.
It is common ground that the recordings of those conversations are the only evidence incriminating Violi and Cotroni and that they are also essential evidence against Papalia. Transcripts, translated where necessary from Calabrese to English, are part of the record of the case. The agreed summary of the first conversation is as follows:
Cotroni and Violi discussed certain information which they received from Kott and/or Lanza relating to an alleged extortion of $300,000 that had taken place in Toronto some eight to twelve months previous through the use of their names. They were advised Johnny (Papalia) had approached someone and said: “If you don’t pay the people from Montreal. they are Kott’s partners…they will put you away”. He (Papalia) said it could be settled for $300,000 which Swartz was to deliver to Papalia who, in turn, was to give the money to Vittorio (Cotroni). Swartz was said to have received $150,000 which was to be lent out on “Shylock” but he gave the money to Papalia. Then Swartz was alleged to have told Bader he needed to give another $150,000.00 to Papalia to give to Cotroni. Cotroni did not receive any monies from Papalia and he believed Papalia kept it all himself. Violi and Cotroni concluded the conversation by agreeing to meet later that day at Gelateria Violi to discuss the matter with Johnny (Papalia).
No satisfactory summary could be agreed upon for the other two conversations but it may be said that there is no doubt Papalia stated he had been promised $50,000 by Swartz and had received $40,000. Violi and Cotroni were taking the stand that $300,000 had been obtained by the use of their names and they should get one half of that sum.
The first ground of appeal which Jessup J.A. dealt with in the reasons of the Court below concerned the admissibility of the recordings as evidence. On that point he said:
…The recordings proffered in evidence were re-recordings. The explanation for this was that, after re-recording, the original recordings had been erased and the tapes of them re-used. The reason was that at that time it was not the practice of the Montreal police to use tape recordings as evidence in Court. The further reason was that electronic surveillance of the premises in Montreal had extended over a protracted period and the storage of the many resultant tapes presented a problem. As a result, a record only of significant conversations was kept by re-recording such significant parts on fresh tapes which were preserved.
It was argued that the re-recordings proffered were inadmissible as not being the best evidence of the conversations they reproduced. However, counsel made the significant admission that no question was raised as to the authenticity of the re-recordings.
Of the “best evidence” rule Halsbury states in the 4th ed., Vol. 17, p. 8:
“That evidence should be the best that the nature of the case will allow is, besides being a matter of obvious prudence, a principle with a considerable pedigree. However, any strict interpretation of this principle has long been obsolete, and the rule is now only of importance in regard to the primary evidence of private documents. The logic of requiring the production of an original document where it is available rather than relying on possibly unsatisfactory copies, or the recollections of witnesses, is clear, although modern techniques make objections to the first alternative less strong.”
The rule itself, in its relatively modern form did not absolutely exclude secondary evidence. It is stated by Lord Esher, M.R. in Lucas v. Williams & Sons, (1892) 2 Q.B. at 116:—
“‘Primary’ and ‘secondary’ evidence mean this: primary evidence is evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper explanation is given of the absence of that better evidence.”
Lord Denning would remove the question of secondary evidence entirely from the area of admissibility to that of weight. In Garton v. Hunter, (1969) 2 Q.B. 37 at 44 he said:
“It is plain that Scott, L.J. had in mind the old rule that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded. That old rule has gone by the board long ago. The only remaining instance of it that I know is that if an original document is available in your hands, you must produce it. You cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility.”
However, the counsel of prudence mentioned by Halsbury accords with the principle stated by McCormick on Evidence, 2nd ed. at p. 571:
“If the original document has been destroyed by the person who offers evidence of its contents, the evidence is not admissible unless, by showing that the destruction was accidental or was done in good faith, without intention to prevent its use as evidence, he rebuts to the satisfaction of the trial judge, any inference of fraud.”
The same principle should apply to tape recordings.
In the present case, in my opinion, the onus mentioned by McCormick was met by the Crown. Here the destruction of the original tapes was done in good faith and the re‑recordings are acknowledged to be authentic. For the proposition that only original tape recordings are admissible the appellants rely on the rulings of single judges in R. v. Stevenson, 55 Cr. App. R. 171 and R. v. Robson, 56 Cr. App. R. 450. However, in both those cases the authenticity of the recordings proffered in evidence was in serious issue and the rulings on admissibility in neither case provide a guide for the facts in this case. Similarly the appellants have referred to several judgments of American State courts where the best evidence rule has been applied rigidly to exclude copies of tape recordings. However, I prefer the Federal Court view expressed in United States v. Knohl, 379 F. 2d. 427 (1967) at p. 440:
“Where a re-recording of a tape recorded conversation is offered in evidence and the trier finds that a proper foundation has been laid for it, and that the re-recording is authentic and accurate, a technical and rigorous application of the best evidence rule makes no sense and is not required. Johns v. United States, 323 F. 2d. 421 (5 Cir. 1963). The discussion of the rule by Mr. Justice Sutherland, sitting as a Circuit Justice in the Second Circuit, in United States v. Manton, 107 F. 2d. 834, 845 (2 Cir. 1939) is pertinent:
‘The rule is not based upon the view that the so-called secondary evidence is not competent, since, if the best evidence is shown to be unobtainable, secondary evidence at once becomes admissible. And if it appear, as it does here, that what is called the secondary evidence is clearly equal in probative value to what is called the primary proof, and that fraud or imposition, reasonably, is not to be feared, the reason upon which the best evidence rule rests ceases, with the consequence that in that situation the rule itself must cease to be applicable, in consonance with the well-established maxim—cessante ratione legis, cessat ipsa lex.
An over-technical and strained application of the best evidence rule serves only to hamper the inquiry without at all advancing the cause of truth.’
We are not unmindful, however, that tape recordings are susceptible to alteration and that they often have a persuasive, sometimes a dramatic, impact on a jury. It is therefore incumbent on the Government to produce clear and convincing evidence of authenticity and accuracy as a foundation for the admission of such recordings; and where the Court accepts them as authentic and accurate but the evidence is conflicting on these points, it must caution the jury to scrutinize the evidence with care.”
In my opinion the learned trial Judge properly received in evidence in the present case the re-recordings proffered. In spite of the elaborate argument submitted by counsel for Papalia and for Cotroni, I can see no reason to doubt the correctness of the opinion thus expressed and I find it unnecessary to add anything on the point. Most of the other points taken by Papalia before the Court of Appeal were also raised again before us but I am satisfied they were properly rejected and do not consider it necessary to deal explicitly with any of them. There is however an important point which arises out of the reasons given for disposing the appeals of Violi and Cotroni as follows:
The main ground of appeal of the appellants Violi and Cotroni is that, as against them, the verdict of the jury is unreasonable and cannot be supported by the evidence. In their case I think that argument has to be given effect to. The only evidence of an agreement between them and Papalia that emerges from the recorded conversations is for Papalia to arrange a meeting in Toronto between them or one of them and Swartz. Presumably at such meeting Swartz would have been made a subject of extortion. The theory of the Crown was that Cotroni and Violi joined the existing conspiracy between Swartz and Papalia but any conspiracy between Papalia, Violi and Cotroni had a different object than that alleged in the indictment. While the roles of the several persons in a conspiracy may be entirely different, they must have a common object. Here the evidence led against Violi and Cotroni points to a different object.
Papalia’s first ground of appeal arising out of the above statement is that on this view of the conspiracy, the indictment was void for duplicity. I do not think this is a correct reading of the Court of Appeal decision. What is said is not that two conspiracies were charged in the indictment but that “any conspiracy between Papalia, Violi and Cotroni had a different object than that alleged in the indictment”. This means that in the view of the Court of Appeal, if there was a conspiracy between Papalia, Violi and Cotroni it was not the conspiracy alleged in the indictment. The basis of this finding is, I think, in the preceding sentence: “Swartz would have been made a subject of extortion”, in other words, this was not a conspiracy to have possession of the $300,000 but a conspiracy to extort $150,000 from Swartz.
I have to agree with Jessup J.A. that the alleged conspiracy between Papalia, Violi and Cotroni did not have the same object as the initial conspiracy between Swartz and Papalia. The object of this first conspiracy was to obtain possession of the $300,000 extorted from Bader at the end of August 1973 and of which Papalia got $40,000 out of a promised $50,000. There is no evidence that Cotroni and Violi were actually involved in this matter prior to the end of April 1974 at which time, having been told that their names had been used in the extortion by Swartz, they allegedly conspired with Papalia to obtain part of the $300,000. The theory of the Crown is that they thereby joined the initial conspiracy between Swartz and Papalia, but I think this contention was righly rejected by the Court of Appeal. There was no evidence of any agreement by them with Swartz, only with Papalia, and, in the circumstances, the latter certainly could not be considered as acting for him so as to effect a conspiracy between all four accused in respect of what Violi and Cotroni sought to accomplish. I, therefore, agree with Jessup J.A. that “the evidence led against Violi and Cotroni points to a different object”.
Out of this there arise two groups of appeal raised by Papalia which require consideration, namely, that on the basis of such conclusion the verdict should be quashed for duplicity and also for improper admission of evidence.
As to the duplicity, it is pretty clear that the Court of Appeal did not think it existed, because it held the “conspiracy between Papalia, Violi and Cotroni had a different object than that alleged in the indictment”, that is it was a conspiracy to extort money from Swartz rather than a conspiracy to have possession of the sum extorted by Swartz from Bader. However, I do not think this is the correct view of Violi and Cotroni’s conspiracy with Papalia. The money extorted by Swartz from Bader did not thereby become his in law. Therefore it appears to me that Violi and Cotroni’s conspiracy is properly described as a conspiracy to have possession of that money rather than as a conspiracy to extort some of it from Swartz, so that, although it is a separate conspiracy it is covered by the indictment and makes it duplicitous. But I do not think this invalidates the conviction. Section 519 of the Code reads: 519. (1) A count is not objectionable by reason only that
(a) it charges in the alternative several different matters, acts or omissions that are stated in the alternative in an enactment that describes as an indictable offence the matters, acts or omissions charged in the count, or
(b) it is double or multifarious.
(2) An accused may at any stage of his trial apply to the court to amend or to divide a count that
(a) charges in the alternative different matters, acts or omissions that are stated in the alternative in the enactment that describes the offence or declares that the matters, acts of omissions charged are an indictable offence, or
(b) is double or multifarious,
on the ground that, as framed, it embarrasses him in his defence.
(3) The court may, where it is satisfied that the ends of justice require it, order that a count be amended or divided into two or more counts, and thereupon a formal commencement may be inserted before each of the counts into which it is divided.
In my view, full effect must be given to ss. (1)(b). Duplicity no longer makes an indictment void. In R. v. Cipolla[2] Porter C.J.O. said in giving the majority opinion (at p. 90):
In the present case the charge is “that the accused unlawfully did conspire together, the one with the other and others of them and persons unknown,” so that in the present case all that was required to be proved by the Crown in so far as Cipolla was concerned, was that he conspired to traffic with any of the other persons charged in the indictment. In my view, once the Crown has proved that Cipolla conspired with any of his co‑accused to traffic in narcotic drugs they proved their case and even if there were more than one conspiracy proved, which in my view there was not, it would not be open to Cipolla as a defence to say “you have proved more than one conspiracy against me.”
This decision was affirmed on appeal to this Court ([1965] S.C.R. v, 46 C.R. 197).
I do not overlook subs. 510(1) which is the introductory provision under the heading “General Provisions as to Counts” and is in the following terms:
510. (1) Each count in an indictment shall in general apply to a single transaction and shall contain and is sufficient if it contains in substance a statement that the accused committed an indictable offence therein specified.
One should note in this enactment the words “in general” which indicate that this is not a rigid but a flexible rule, also the word “transaction” which has no technical meaning in criminal law and cannot be equated with “offence”. The reason for this indefiniteness in the rule is obvious: it is to be read with s. 519 which governs its application, giving to the trial judge fairly complete discretion in this respect. He may at the request of the accused or of his own motion, at any stage of the trial, divide a double or multiple count. On the other hand, it is provided that this will not be a cause of invalidity.
It has long been recognized that the general rule against duplicity or multifarious counts is subject to exception in some cases. For instance in Minchin v. The King[3] one reads in the head note:
A conviction for theft of an entire sum, although it may have been taken in numberous small amounts at different times during the deficiency period, may be supported without proving the taking of each of any of such several amounts and the case treated as one continuous act of theft although there were a number of distinct takings,…
In R. v. Laroche[4], at p. 10, McLennan J.A. said for the Ontario Court of Appeal:
The argument was addressed to us that the indictment and conviction were bad in law. Section 492(1) (of the Criminal Code, 1953-54 (Can.), c. 51) states: “Each count in an indictment shall in general apply to a single transaction…” Counsel for the appellant argued that each of the nine transactions should have been made the subject of a separate count and since they were not the conviction is void for uncertainty because a general verdict on the indictment as it stands now does not reveal what amount the jury found that the appellant had stolen. This charge is, however, that the appellant between certain dates stole varying sums, in amounts and at times unknown, to a total sum of $10,790.52. In such a case it is proper to charge a general deficiency: Minchin v. The King (1914), 23 C.C.C. 414, 18 D.L.R. 340. The proof of the nine transactions was necessary to show the general deficiency and apart from the first Millcraft cheque the Noel cheque, if that was a substitution for cash previously taken, there was no relation in time between the takings and the substitutions of the cheques. If the charge had been that of falsifying records under s. 340 it would of course have been necessary to set out in a separate count each of the transactions referred to, but that is not this case. The appellant did not apply for particulars before or during the trial under s. 497 or to amend or divide the count under s. 500. I would not be disposed to quash the conviction on these grounds because in substance the charge is of one continuous act of theft. In any event it is not a rule of law but one of practice that in cases like this the charge should be divided into as many counts as possible: R. v. Tomlin (1954), 38 Cr. App. R. 82…
Although rejecting the argument based on multiplicity, the Ontario Court of Appeal quashed the conviction on another ground. On appeal to this Court[5] the conviction was restored by the majority judgment, however, Spence J. Dissenting, agreed with the majority as to the correctness of the above quoted statement.
In R. v. Canavan and Busby[6] at pp. 18, 19, Schroeder J.A. said for the Ontario Court of Appeal after quoting ss. 510(1) (then subs. 492(1)):
“Transaction” is a word of quite comprehensive import, which, so far as I am aware, has never been the subject of any exact legal definition. The word has been interpreted as the justice of each case demanded rather than by any abstract definition. In its ordinary sense it is understood to mean the doing or performing of some matter of business between two or more persons. “Transaction” in its broadest sense expresses the concept of driving, doing, or acting as is denoted by the Latin word trans-agere from which it is derived. In Bendir et al. v. Anson, [1936] 3 All E.R. 326 at p. 330, it was suggested that “transaction” would seem to mean an act the effect of which extends beyond the agent to other persons.
A “transaction” may and frequently does include a series of occurrences extending over a length of time.
. . .
The words “in general” appearing in s. 492(1) would appear to indicate a permissible relaxation of its terms extending to exceptional cases in which a number of acts each in itself constituting an offence is capable of being treated as one transaction. This is implicit in the provisions of s. 500(3) of the Code which empowers the Court, where it is satisfied that the ends of justice require it, to order that a count be amended or divided into two or more counts. This indicates that a number of acts, each in themselves capable of constituting an offence, may be before the Court in one count and a trial on that one count can proceed unless the Court is satisfied that a division is required.
Leave to appeal to this Court was denied ([1970] S.C.R. viii).
Counsel for Papalia relied on what is said by Goode, Criminal Conspiracy in Canada at p. 228, and notes there cited. The notes refer mainly to Cox and Paton v. R.[7] and Archer v. R.[8] I cannot find what Goode says very helpful to Papalia and Cotroni. At p. 222, I read: “Cartwright J. in Cox and Paton v. The Queen recognized that one conspiracy may encompass more than one object,…”. I should however point out that Cox and Paton did not deal with duplicity in the same sense as in the instant case. The problem there was the exact opposite: instead of two conspiracies charged in one count, the same conspiracy was in substance charged differently in several counts. It was a situation similar to that which occurred in Kienapple v. R.[9] where it was likewise held that there should not be more than one conviction entered for what is in substance the same delict, although it may technically constitute two or more offences.
As to Archer v. R. it must be pointed out that this was a summary conviction offence governed by the provisions of the old Criminal Code, which are quoted in the judgment of the majority and where one reads:
710. (3) Every complaint shall be for one matter of complaint only, and not for two or more matters of complaint, and every information shall be for one offence only, and not for two or more offences.
This was a rigid rule against duplicity or multiplicity totally unlike ss. 510(1) and moreover not subject to s. 519.
Even under the present Code, the situation is not the same for summary conviction offences as for indictable offences for the obvious reason that in summary conviction offences, the accused does not have the benefit of a preliminary enquiry. Subsection 724(1) reads:
724. (1) In proceedings to which this Part applies, the information
(a) shall be in writing and under oath, and
(b) may charge more than one offence or relate to more than one matter of complaint, but where more than one offence is charged or the information relates to more than one matter of complaint, each offence or matter of complaint, as the case may be, shall be set out in a separate count.
By virtue of subs. 729(1), ss. 510 and 512 apply but not s. 519. However, here is what Dickson J., speaking for the full Court, said of duplicity in the summary conviction case of Caswell v. Sault Ste. Marie,[10] at pp. 38, 39 and 1307, 1308:
…one must recall, I think, the policy basis of the rule against multiplicity and duplicity. The rule developed during a period of extreme formality and technicality in the preferring of indictments and laying of informations. It grew from the humane desire of judges to alleviate the severity of the law in an age when many crimes were still classified as felonies, for which the punishment was death by the gallows. The slightest defect made an indictment a nullity. That age has passed. Parliament has made it abundantly clear in those sections of the Criminal Code having to do with the form of indictments and informations that the punctilio of an earlier age is not longer to bind us. We must look for substance and not petty formalities. . . .
In my opinion, the primary test should be a practical one, based on the only valid justification for the rule against duplicity: does the accused know the case he has to meet, or is he prejudiced in the preparation of his defence by ambiguity in the charge?
In the present case there is no finding of prejudice caused by the duplicity of the charge and none appears. In my view, the effect of s. 519 is not doubtful: in indictable offences, duplicity and multiplicity do not invalidate an indictment, it is for the judge trying the case to decide whether a division is necessary. In the present case, it is unnecessary to go on to consider under what circumstances the failure of the trial judge to properly exercise his discretion in this respect might be reviewed on appeal, there is no basis for such review. I, therefore, have to reject the objection based on duplicity.
The last ground of appeal submitted by Papalia which has to be dealt with is that, because the second conspiracy did not come within the terms of the indictment, the evidence in support thereof was not properly admitted. There is no substance in this objection. The incriminating part of the three conversations towards Papalia is all in the second in which he took part and which would be admissible in any event.
For those reasons, I conclude that Papalia’s appeal should be dismissed.
On the Crown’s appeal against Cotroni, a threshold question arises: Does the appeal raise a pure question of law? The problem is that in dealing with Violi and Cotroni’s appeal, Jessup J.A. said at the outset:
The main ground of appeal of the appellants Violi and Cotroni is that, as against them, the verdict of the jury is unreasonable and cannot be supported by the evidence. In their case I think that argument has to be given effect to.
If those words were to be considered apart from what follows, it would have to be decided that there ca