Supreme Court of Canada

Phillips and Phillips v. The Queen, [1983] 2 S.C.R. 161

Date: 1983-10-13

James Reginald Phillips and Robert Paul Phillips Appellants;

and

Her Majesty The Queen Respondent.

File No: 16935.

1983: February 3; 1983: October 13.

Present: Ritchie, Dickson, McIntyre, Chouinard and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK

Criminal law—Procedure—Separate informations—Joint trial—No jurisdiction to try together separate informations—New trials ordered.

Appellants were charged in separate informations of hunting with a light contrary to s. 24 of the New Brunswick Game Act. Another person was also charged in a third information of wilfully obstructing police officers in the execution of their duty contrary to s. 118(a) of the Criminal Code. All charges arose out of the same incident. By agreement between the counsel of the prosecution and counsel for the defence, the defendants were tried together. The appellants’ convictions in Provincial Court were upheld by the Court of Queen’s Bench and the Court of Appeal. This appeal is to determine whether the trial judge had jurisdiction to try more than one information at the same time.

Held: The appeal should be allowed and new trials ordered.

Even with the consent of counsel of the parties, a trial judge is without jurisdiction to try together separate informations or indictments. The principle applies to charge laid under the Criminal Code or under provincial statutes unless those statutes expressly provide otherwise.

Crane v. Public Prosecutor, [1921] 2 A.C. 299, applied; R. v. Kennedy, R. v. Dowdall (1971), 1971 CanLII 419 (ON CA), 3 C.C.C. (2d) 58; R. v. Torangeau (1980), 1980 CanLII 2875 (ON CA), 53 C.C.C. (2d) 574, not followed; R. v. Levesque, 1965 CanLII 707 (QC CA), [1967] 2 C.C.C. 49, distinguished; R. v. Dennis, R. v. Parker, [1924] 1 K.B. 867; R. v. Theirlyock (1928), 1928 CanLII 515 (AB SCAD), 50 C.C.C. 296; R. v. Hart and Kozaruk (1929), 1929 CanLII 488 (AB SCAD), 51 C.C.C. 145; R. v. Sargent (1943), 1943 CanLII 309 (MB CA), 79 C.C.C. 384; R. v. Gray (1947), 1947 CanLII 376 (ON CA), 4 C.R. 363; Kezar v. The Queen (1960), 1960 CanLII 478 (QC CA), 132 C.C.C. 54; R. v.

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Cassidy (1927), 1927 CanLII 434 (ON CA), 49 C.C.C. 93; R. v. Longo (1941), 1941 CanLII 64 (ON CA), 76 C.C.C. 142; R. v. Johns (1945), 1945 CanLII 110 (ON CA), 84 C.C.C. 213; R. v. Elkins (1961), 1961 CanLII 460 (BC CA), 35 C.R. 314; Brown v. The Queen (1961), 1961 CanLII 513 (NB CA), 46 M.P.R. 321; R. v. McDonald (1928), 1928 CanLII 362 (ON SC), 50 C.C.C. 65; R. v. Bannister (1954), 1954 CanLII 431 (ON SC), 19 C.R. 419; Peterson v. Peterson, 1970 CanLII 346 (ON SC), [1970] 5 C.C.C. 315; R. v. Armstrong (1977), 1977 CanLII 3219 (NS SC), 28 N.S.R. (2d) 431; R. v. Yeadon (1979), 1979 CanLII 4254 (NS SC), 36 N.S.R. (2d) 271; R. v. Mansell and Veilleux (1971), 18 C.R.N.S. 398; R. v. Kosowan (1971), 1971 CanLII 1228 (ON SC), 3 C.C.C. (2d) 73; R. v. Burns (1975), 1975 CanLII 1509 (ON SC), 27 C.C.C. (2d) 316; Morena v. R.; Iacampo v. R., [1977] C.A. 140, referred to.

APPEAL from a judgment of the New Brunswick Court of Appeal (1981), 1981 CanLII 3686 (NB CA), 37 N.B.R. (2d) 72, 97 A.P.R. 72, dismissing the accused’s appeal from a judgment of the Court of Queen’s Bench, Trial Division (1980), 1980 CanLII 3247 (NB QB), 33 N.B.R. (2d) 50, 80 A.P.R. 50, upholding the convictions of the accused. Appeal allowed.

Gary A. Miller and J. Brian Neill, for the appellants.

Paul Thériault, Q.C. for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—The two appellants were charged in separate informations with hunting game by means or with the assistance of a light, contrary to the provisions of s. 24 of the Game Act, R.S.N.B. 1973, c. G-1. The informations were identical save only for the name of the person accused in each one. A third person, Beulah Phillips, was charged in a third information with wilfully obstructing police officers in the execution of their duty contrary to the provisions of s. 118(a) of the Criminal Code. All charges arose out of the same incident. By consent all three defendants were tried at the same time on common evidence. The two appellants were convicted and their appeal was dismissed in the Court of Appeal. Beulah Phillips did not appeal to this Court and her position is not relevant to these proceedings.

At trial and in the Court of Appeal the matter was disposed of on the merits. In this Court, the

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merits were not argued. Instead, new grounds not raised below were advanced and they may be most conveniently set out by quoting from the appellants’ factum, where it is stated:

The conviction of the Appellants was made without jurisdiction in that their trial was a nullity for the reasons that:

(a) Each of the Appellants was charged in a separate information for an offence contrary to section 24 of the New Brunswick Game Act and each of their trials was held together with no motion being made to read in the evidence heard in relation to one charge as constituting the evidence on the other charge;

(b) Each of the Appellants was tried with one Beulah Phillips who was charged with an offence contrary to section 118 of the Criminal Code of Canada, and there is no jurisdiction for a Provincial Court Judge to try a Criminal Code offence together with an information charging an offence under the New Brunswick Game Act.

It should be noted that no objection was taken to the informations themselves. Each information charged one accused with one offence. Counsel for the appellants argued, however, that the fact that the trial judge tried the informations together, even though the parties consented, rendered the whole proceedings void. Alternatively, it was contended that, whatever the result of a joint trial of two informations under the Summary Convictions Act of New Brunswick, the joinder at trial of the third information under the Criminal Code was fatal. Counsel for the Crown contended that, at most, the joinder for trial of the separate informations was a mere irregularity against which the court had the power to relieve. Since it was asserted that no prejudice was shown and that there was clear evidence of the guilt of the appellants adduced before the trial judge, the Court should dismiss the appeals.

There is judicial support for the appellants’ position that there is no jurisdiction to try more than one indictment or information at the same time. In Crane v. Public Prosecutor, [1921] 2 A.C. 299,

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two accused charged on separate indictments were tried together. Although it is permissible at common law to charge two accused jointly on the same indictment, the House of Lords held that a single trial on more than one indictment was a nullity. Lord Atkinson said, at p. 321:

When an accused person has pleaded “Not guilty” to the offences charged against him in an indictment, and another accused person has pleaded “Not guilty” to the offence or offences charged against him in another separate and independent indictment it is, I have always understood, elementary in criminal law, that the issues raised by those two pleas cannot be tried together.

This principle was applied in R. v. Dennis; R. v. Parker, [1924] 1 K.B. 867, where it was held in the Court of Criminal Appeal that a single trial could not be held on more than one indictment even with the consent of the parties. Jurisdiction cannot be conferred by consent.

The rule has been followed in Canada in cases of multiple accused: R. v. Theirlyock (1928), 1928 CanLII 515 (AB SCAD), 50 C.C.C. 296 (Alta. C.A.); R. v. Hart and Kozaruk (1929), 1929 CanLII 488 (AB SCAD), 51 C.C.C. 145 (Alta. C.A.); R. v. Sargent (1943), 1943 CanLII 309 (MB CA), 79 C.C.C. 384 (Man. C.A.); R. v. Gray (1947), 1947 CanLII 376 (ON CA), 4 C.R. 363 (Ont. C.A.); Kezar v. The Queen (1960), 1960 CanLII 478 (QC CA), 132 C.C.C. 54 (Que. C.A.). It has also been applied in cases of a single accused charged on more than one indictment or information: R. v. Cassidy (1927), 1927 CanLII 434 (ON CA), 49 C.C.C. 93 (Ont. C.A.); R. v. Longo (1941), 1941 CanLII 64 (ON CA), 76 C.C.C. 142 (Ont. C.A.); R. v. Johns (1945), 1945 CanLII 110 (ON CA), 84 C.C.C. 213 (Ont. C.A.); R. v. Elkins (1961), 1961 CanLII 460 (BC CA), 35 C.R. 314 (B.C.C.A.); Brown v. The Queen (1961), 1961 CanLII 513 (NB CA), 46 M.P.R. 321 (N.B.C.A.). The rule has been used to quash convictions on summary conviction offences under provincial statutes: R. v. McDonald (1928), 1928 CanLII 362 (ON SC), 50 C.C.C. 65 (Ont. Co. Ct.); R. v. Bannister (1954), 1954 CanLII 431 (ON SC), 19 C.R. 419 (Ont. Co. Ct.); Peterson v. Peterson, 1970 CanLII 346 (ON SC), [1970] 5 C.C.C. 315 (Ont. H.C.); R. v. Armstrong (1977), 1977 CanLII 3219 (NS SC), 28 N.S.R. (2d) 431 (Co. Ct.). The overwhelming weight of authority in Canada, based upon the Crane case, supra, is against a joint trial of more than one indictment or information.

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A trial proceeds on the basis of one indictment or one information which may or may not, according to the relevant statutory provisions, contain more than one count. Early text writers referred to the indictment as the foundation of the record, that is, the document by which proceedings are commenced. Stephen’s History of the Criminal Law of England, vol. 1, 1883, states at p. 274:

The indictment is the foundation of the record in all criminal cases, and is indeed the only document connected with the trial which in all cases is in writing. It is in the form of a statement upon oath by the grand jury that the prisoner committed the offence with which he is charged.

And at page 275:

It is enough to say that in all common cases the pleadings in a criminal trial have always consisted, and still consist, of an indictment engrossed on parchment, and a plea given by the accused person orally in open court, of guilty or not guilty.

In all of the earlier writings on the subject of indictments and informations and the procedures involved in their presentment and trial, it was assumed that trial proceedings were founded upon a single indictment or information. From very early times in England it was possible to join more than one person as an accused in an indictment: see Blackstones Commentaries, vol. 4, 18th. ed., 1829, at p. 301, where an indictment is described as a written accusation against “one or more persons”. This practice has been followed in Canada. I have not, however, found any early authority for the joinder for trial of more than one information or indictment.

The Crane rule against the joinder for trial of separate indictments or informations has recently been questioned in Canada. In R. v. Levesque, 1965 CanLII 707 (QC CA), [1967] 2 C.C.C. 49 (Que. C.A.), one accused was charged on two separate indictments with two separate offences arising out of the same transaction. The offences could have been charged as separate counts on one indictment (see s. 520 of the Criminal Code). Since counsel consented to

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the joint trial and since there was no prejudice to the accused it was held that the joint trial amounted only to an irregularity which was corrected by consent. Convictions on the two separate indictments were upheld. This case is, of course, distinguishable from the case at bar in that it involved the joint trial of two indictments against one accused. The present case involves two informations against two separate accused.

In R. v. Kennedy; R. v. Dowdall (1971), 1971 CanLII 419 (ON CA), 3 C.C.C. (2d) 58, the Ontario Court of Appeal (MacKay, Kelly and Arnup JJ.A.) refused to apply the Crane principle in a case where two accused were charged on separate informations with offences arising out of the same transaction. The two informations were tried together by consent. The first issue before us in the case at bar was exactly the issue raised in the Kennedy case.

In Kennedy, Kelly J.A. observed that the two appellants were engaged in a joint entreprise and that they could have been jointly charged under the Criminal Code. He went on to point out that, had they been so charged, the course of their defence would have been the same and that no prejudice would have resulted. He considered that, since any number of persons can be jointly charged with the commission of the same offence and since, under the Criminal Code, several offences can be included in one information (with the power of a judge in a proper case to order separate trials of separate accused persons), the joinder of the informations in one trial was a mere irregularity. As there was no prejudice to either accused, the convictions were upheld. Kelly J.A. was of the view that the provisions in the present Code were expressive of an intention to encourage joint trials where no prejudice would result. He considered that narrow technical objections should not

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obstruct this process. He said, at p. 63:

The anomalous situation disclosed by this appeal is that the appellants, who were tried in a manner to which their counsel agreed, at a trial to the conduct of which they have raised no other objection, seek to have the convictions nullified solely because both appellants were not charged in a single information.

I am fully conscious of the fact that many cases have held that jurisdiction if otherwise absent cannot be conferred by consent. I do not attempt to support the convictions on that basis. Rather do I question the universality of the rule that essays to state that any joint trial of two indictments is a nullity.

The authorities on which it is sought to support the appeal have their origin in times long before the advent of the Code. In view of the extensive provisions in the Code for the joinder of offences and offenders, subject to the overriding power of the Court to order separation when justice requires it, I do not consider that what occurred in these cases resulted in the proceedings being of necessity a nullity—there was at most an irregularity, the gravity of which is to be measured by the extent to which the fair trial of the accused persons was prejudiced. Since neither appellant suffered any prejudice in the defence advanced by him, it follows in my view that the irregularity is one with respect to which this Court may invoke the provision of s. 592 (1)(b)(ii) (am. 1968-69, c. 38, s. 60(1)) of the Code.

Arnup J.A., in expressing agreement with Kelly J.A., said at p. 67:

I am further of the view that procedural changes in the Criminal Code, including those mentioned by my brother Kelly, have been such as to enable one to discern a legislative intention that criminal procedure should be expeditious, convenient, sensible and not unduly technical, but subject always to the overriding duty of the Court to ensure that the interests of the accused are fully protected and that his right to a fair trial is in no way prejudiced. A similar policy is in general discernible from the more recent decisions of the criminal Courts both in England and in Canada.

He went on to observe that the rule against the joint trial of separate informations was ‘judgemade’ and could be relaxed and modified with

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changing attitudes and conditions. He recognized the existence of authorities heretofore considered to be binding upon the courts, but did not feel that the requirements of stare decisis bound the court to set aside the convictions “because the proceedings were initiated by two pieces of paper instead of one, even though we are completely satisfied that there was not the slightest prejudice to either accused nor any reason to question the correctness, on the facts, of their conviction”.

The Kennedy case has not been uniformly followed in Canada. In 1980, the Ontario Court of Appeal upheld the convictions of one accused based on two informations tried together in the case of R. v. Torangeau (1980), 1980 CanLII 2875 (ON CA), 53 C.C.C. (2d) 574, since there was no prejudice to the accused. Apart from that case, however, it is interesting to note that only one case was cited to us in which Kennedy was applied to uphold convictions based on one trial of separate informations. In R. v. Yeadon (1979), 1979 CanLII 4254 (NS SC), 36 N.S.R. (2d) 271, the Nova Scotia County Court upheld two convictions under the provincial Motor Vehicles Act even though the single accused was tried on two separate informations at the same time. The provincial Act incorporated the summary conviction procedures of the Criminal Code. Another Nova Scotia County Court judge declined to follow Kennedy in R. v. Armstrong, supra, as did the British Columbia Supreme Court in R. v. Mansell and Veilleux (1971), 18 C.R.N.S. 398. Even the lower courts of Ontario have declined to follow the decision of their own Court of Appeal in Kennedy: see R. v. Kosowan (1971), 1971 CanLII 1228 (ON SC), 3 C.C.C. (2d) 73 (Ont. H.C.), and R. v. Burns (1975), 1975 CanLII 1509 (ON SC), 27 C.C.C. (2d) 316 (Ont. Co. Ct.).

The question before this Court may be simply stated. Should we accept the reasoning of the

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Ontario Court of Appeal in Kennedy and discard the rule enunciated in Crane which has been generally accepted in Canadian courts since that time, or should we confirm the rule in Crane as a correct statement of the law to be applied in Canada?

In answering this question, I say at the outset that I am in full agreement with the learned justices of the Ontario Court of Appeal when they say that joint offenders should be jointly charged and jointly tried. I agree that any prejudice which may arise upon such a joint trial is guarded against by the exercise in a proper case of the judicial power to sever counts and order separate trials. That is precisely what is provided for in the Criminal Code, both for indictable and summary conviction offences and, in the case of indictments, it has been the law for centuries. Approving such a proposition does not, however, touch the question facing us here or which faced the Ontario Court of Appeal in the Kennedy case.

The difficulty with the question in this case is that a criminal trial has for centuries proceeded on the basis of one indictment or one information. So basic to the law of criminal procedure was this principle that the early text writers found no need even to comment on it, although the principle is implicit throughout their writings (see, for example, Stephen’s History of the Law of England and Kenny’s Outlines of Criminal Law, 19th ed., 1966). It is not, therefore, surprising that Lord Atkinson in the Crane case, supra, referred to the principle as ‘elementary’.

I would be reluctant to rest my decision in this case solely on the basis of ancient practice. I agree with the Ontario Court of Appeal that there is no reason why we should be required to be bound by authority which serves no real purpose and rests upon no sound principle applicable in a modern society. We must not, however, cast aside rules merely because they are of long standing or

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because they may seem in certain cases to be inconvenient. Can it be said then that the rule against joint trials of separate indictments or informations serves no purpose and is based on no sound principle?

The joinder of two or more indictments or informations for trial raises fundamentally different problems from those which arise in the joint trials of several persons accused under one indictment or information. An elaborate procedure is provided under the Criminal Code covering joint trials but no such procedure is to be found to deal with questions arising upon a joinder of indictments. Consider, for example, the application of the rule that an accused person is not compellable as a witness at his own trial. Where two accused are charged on separate indictments or informations and tried together in one proceeding there is nothing to prevent the Crown from calling one accused as a witness to testify with respect to the indictment or information charging the other accused because, in respect of that indictment, he does not enjoy the protection accorded an accused person. The risk of prejudice is immediately apparent and the Crown would in this way obtain an advantage not permitted or even contemplated by the Code provisions. It could be argued no doubt that the evidence so given would be admissible only against the co-accused but on what principle it could be so limited may be somewhat obscure. Certainly any protection the witness might claim under s. 5 of the Canada Evidence Act, R.S.C. 1970, c. E-10, would be rendered completely illusory. Such protection against the use of the evidence against him applies only to future proceedings and not to those in progress when the evidence is given. One may consider as well the case of an accused charged in two separate indictments or informations with different offences. It may be advantageous for him to testify with respect to one charge but not to the other. Such an advantage is lost if both indictments are tried together. This problem to be sure may arise where an accused is charged with separate counts on one indictment or information, but where this occurs he enjoys the protection of the detailed procedural provisions of the Code relating to severance. While in retrospect, that is to say,

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from the vantage point of the appellate courts, it may be possible in any given case to conclude that no prejudice resulted from a joinder for trial of two indictments or informations, it would be impossible for a trial judge to foresee at the outset of the trial all possible consequences of such a joinder. The dangers then of prejudice and injustice are such that they outweigh any advantage or consideration of efficiency thought to be gained by the joinder.

It should also be pointed out that the common law rule against joint trials of separate indictments or informations has been incorporated by implication into the Criminal Code. Throughout the Code, reference is made to trial on the indictment or the information. Even the provisions in relation to multiple counts and severance indicate that a trial is to proceed on one indictment or information. If it had been contemplated by Parliament that more than one information or indictment could be tried at the same time, these provisions for joinder or severance would have been unnecessary.

In my opinion, therefore, the rule expressed in the Crane case and generally accepted in Canadian courts should be followed. I would hold that a trial judge is without jurisdiction to try together separate informations or indictments under the Criminal Code. This result will not complicate or delay the due administration of justice. There are adequate means provided in the Criminal Code for the joinder of accused and for the joinder of counts to avoid having to conduct more trials than are necessary. Even at the beginning of a trial, where there are separate informations or indictments that should have been charged jointly, it is open to the trial judge in his discretion to permit the amend-

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ment of one document to include the charges or accused from the other in a proper case: see Morena v. R.; Iacampo v. R., [1977] C.A. 140.

As noted earlier, the appellants in the present case were charged under a provincial statute and the procedures of the Summary Convictions Act of New Brunswick govern. In my view, the same reasoning above with respect to the Criminal Code applies to provincial statutes unless those statutes expressly provide otherwise. No such provision may be found in the New Brunswick Act.

For the above reasons, it is my opinion that this appeal should be allowed, the convictions set aside, and new trials ordered on the separate informations. It is therefore unnecessary to consider the second ground of appeal.

Appeal allowed and new trials ordered.

Solicitors for the appellants: Gary A. Miller and J. Brian Neill, Fredericton.

Solicitor for the respondent: Paul Thêriault, Fredericton.