Supreme Court of Canada

Matheson v. The Queen, [1981] 2 S.C.R. 214

Date: 1981-06-22

Lawrence Graham Matheson Appellant;

and

Her Majesty The Queen Respondent.

1980: December 8; 1981: June 22.

Present: Martland, Ritchie, Dickson, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Evidence—Criminal law—Preliminary hearing evidence not read into trial record after re‑election—Conviction on basis of all evidence—Alleged intention that all evidence be considered—Whether or not conviction should be overturned and new trial ordered—Criminal Code, R.S.C. 1970, c. C-34, ss. 484, 485(1), 491.

The trial judge, during a preliminary inquiry, granted appellant’s motion re-electing trial by magistrate. Inadvertently, the evidence adduced before the election was not read into the trial record. Accused appealed his conviction. The issue considered by this Court was whether or not all the evidence called should have been considered in the question of guilt, given the contention that accused intended the evidence to be so used.

Held: The appeal should be allowed.

To secure conviction, the Crown had to legally adduce evidence at the accused’s trial. Speculation as to accused’s intentions would not remedy the fatal oversight of the evidence not being read into the trial record. It was immaterial that the trier of fact at the trial was the same person as the one who presided over the preliminary hearing.

APPEAL from a decision of the Court of Appeal for Manitoba[^1], dismissing an appeal from conviction by Dubienski P.J. Appeal allowed.

No one appearing on behalf of the appellant.

J.G.B. Dangerfield, for the respondent.

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The judgment of the Court was delivered by

LAMER J.—The appellant was charged before a Provincial Court Judge in Winnipeg with four offences, two of which are relevant to this appeal: in the same charge, a count of robbery, s. 302(d) of the Criminal Code, and one of using a firearm to commit an indictable offence, s. 83 of the Criminal Code. As the accused had elected to be tried by a judge without a jury and the Crown had chosen to proceed on the first count, the magistrate commenced a preliminary inquiry into that offence. After twelve witnesses were examined, the appellant moved to re-elect for a trial by a magistrate under Part XVI, as is permitted in accordance with the provisions of s. 491 of the Code. The Provincial Court Judge granted the motion, took a plea of not guilty, continued the proceedings as a trial, heard the rest of the evidence and, the evidence adduced at the trial on that first count having been read into the record of the second count, found the appellant guilty of both offences.

The accused appealed to the Court of Appeal for Manitoba on grounds raising various issues which he now argues before this Court. They turn mainly upon the question whether there must be and, if so, whether in fact there was in this case strict compliance with the operative provisions of ss. 484 (election) and 491 (re-election) of the Code; he also takes issue with those who hold that it is sufficient that there be substantial compliance with those provisions, and questions the right of an accused to waive same, strict or substantial, either personally or through counsel. Those grounds need not here be considered, as I am of the view that the appeal should succeed on a ground raised in the Crown’s factum.

Crown counsel, to his credit, and all the more so as the appellant is unrepresented before this Court,

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drew our attention to the fact that inadvertently the evidence adduced prior to the re-election and plea of not guilty had, save some admissions, not been in any way read into the trial record. Having raised the issue Crown-respondent then argued that “it is clear that it was Appellant’s intention that all the evidence called was to be used in deciding his guilt or innocence”. Respondent then suggested that “it was quite within the power of the learned Provincial Court Judge in the circumstances of the case at bar to consider all of the evidence called in the question of guilt”.

I cannot agree. Whatever may have been appellant’s intentions, it is incumbent upon the Crown to adduce evidence at the accused’s trial and we cannot compensate for that understandable but no less fatal oversight by resorting to speculating as to appellant’s intentions at the time; be they as the Crown suggests, an accused cannot be convicted on evidence he thought was adduced at his trial, but only on evidence which was legally adduced before the trier of fact in the course of that trial. That the trier of fact at the trial be the same person as the one who presided at the abortive preliminary hearing is immaterial. We are not here facing a mistake concerning a mere formality though the matter could have been dealt with then quite simply, since respondent is right at least as to appellant’s attorney’s intention at the time. It was evidently an oversight on the part of all; but that oversight, understandable as it may be, nevertheless resulted in evidence, necessarily relied upon for the convictions, not having been actually adduced before the trial judge. We are not here governed by s. 485(1) of the Code, where a magistrate, conducting a trial, and being of the view that the charge should be prosecuted by indictment, continues the proceedings as a preliminary inquiry. My reading of s. 485(1) is that, in such a case, the magistrate need not read the trial evidence into the inquiry’s record. Parliament differentiated between the two situations no doubt because evidence admissible at an accused’s trial will of neces-

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sity be so at his preliminary, but not necessarily conversely.

A person may be convicted for an offence only after having been accused of that offence and after a trial at which proof of that person’s guilt has been adduced before a judge (or judge and jury) having jurisdiction to hear the case. An accused may waive (subject to that waiver being accepted by the judge) his right to a trial by a plea of guilty. Short of that there must be compliance with the rule that guilt must be established during the trial before the trier of fact. As regards evidence by witnesses, strict compliance means their being sworn or affirmed and heard at the trial before the trier of fact. An accused may, if the Crown consents and the Court accepts, waive strict compliance with that rule in many ways and in various degrees; indeed, he may relieve the Crown from proving certain facts by admitting them; he may dispense with the swearing in of witnesses and the taking of their evidence by admitting what their evidence would be as regards certain facts if those witnesses were called; he may, if the evidence has already been adduced at a previous proceeding, accept that the evidence be read or even be deemed to be read into the trial proceedings; he may even accept, when as in this case the trial judge is the same person before whom the witnesses testified in the previous proceedings, that their evidence be deemed read into the record of his trial without even awaiting the filing of the transcript of their oral evidence. But, whatever be the method chosen for satisfying at least substantial compliance, there are two prerequisites to be met, short either one of which there is no compliance at all (save the exception found in the Code at s. 485(3)(b): that the consent by the accused and the Crown departing from strict compliance be conveyed to the Court in the course of the trial, and then that the evidence in some way, be it by the filing of transcripts or even by some reference

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to previous judicial proceedings, enter the record some time during that trial. In the present case neither was met. As a result the evidence adduced prior to the re-election cannot form any part of the trial.

In all fairness to the Court of Appeal I should mention that this ground was not raised before that Court. It is not without reluctance that I see myself compelled to considering overruling a Court’s finding on a ground that had not been raised before that Court; nevertheless, given the fatal effect on the proceedings resulting from this oversight, I am compelled to conclude that this appeal should be allowed and a new trial ordered.

Appeal allowed.

Solicitor for the respondent: Deputy Attorney General of Manitoba, Winnipeg.

[^1]: (1979), 1979 CanLII 2939 (MB CA), 90 C.C.C. (2d) 92, 13 C.R. (3d) 62, 1 M.R. (2d) 111; [1979] 6 W.W.R. 738.