SUPREME COURT OF CANADA
Skogman v. The Queen, [1984] 2 S.C.R. 93
Larry Cliff Skogman Appellant;
and
Her Majesty The Queen Respondent.
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.
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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), 1977 CanLII 1383 (ON CA), 20 O.R. (2d) 455, affirmed sub nom. Martin v. The Queen, 1978 CanLII 30 (SCC), [1978] 2 S.C.R. 511; Re Guttman and The Queen (1981), 1981 CanLII 3374 (QC CS), 64 C.C.C. (2d) 342; Procureur général du Québec v. Poirier, [1981] C.A. 228, sub nom. Re Poirier and The Queen (1981), 1981 CanLII 3236 (QC CA), 62 C.C.C. (2d) 452; Re Leroux and The Queen (1978), 1978 CanLII 2537 (QC CS), 43 C.C.C. (2d) 398; Re Robar and The Queen (1978), 1978 CanLII 2407 (NS CA), 42 C.C.C. (2d) 133; Re Mackie and The Queen (1978), 1978 CanLII 2450 (ON SC), 43 C.C.C. (2d) 269;
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Stillo v. R. (1981), 1981 CanLII 3313 (ON CA), 22 C.R. (3d) 224; Forsythe v. The Queen, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268; Patterson v. The Queen, 1970 CanLII 180 (SCC), [1970] S.C.R. 409; R. v. Nat Bell Liquors Ltd., 1922 CanLII 488 (UK JCPC), [1922] 2 A.C. 128; R. v. Botting, 1966 CanLII 229 (ON CA), [1966] 3 C.C.C. 373; R. v. Norgren (1975), 1975 CanLII 1453 (BC CA), 27 C.C.C. (2d) 488; United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067; Douglas Aircraft Company of Canada Ltd. v. McConnell, 1979 CanLII 51 (SCC), [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, 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382; Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation, 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227; City of Toronto v. Polai (1969), 1969 CanLII 339 (ON CA), 8 D.L.R. (3d) 689; R. v. Kopan (1975), 1975 CanLII 218 (BC CA), 3 B.C.L.R. 102, referred to.]
APPEAL from a judgment of the British Columbia Court of Appeal (1982), 1982 CanLII 344 (BC CA), 66 C.C.C. (2d) 14, [1982] 3 W.W.R. 367, allowing the Crown's appeal from a judgment of Bouck J. (1981), 1981 CanLII 376 (BC SC), 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.
Majority Judgment
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.
Background and Procedural History
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.
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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.
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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 CanLII 30 (SCC), [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), 1975 CanLII 218 (BC CA), 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."
Scope of Certiorari
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
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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, 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382; Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation., 1979 CanLII 23 (SCC), [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, 1979 CanLII 51 (SCC), [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 CanLII 15 (SCC), [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.
Reviewability of Committals under Section 475
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:
- (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
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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 CanLII 180 (SCC), [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 CanLII 229 (ON CA), [1966] 3 C.C.C. 373 (Ont. C.A.) and R. v. Norgren (1975), 1975 CanLII 1453 (BC CA), 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 CanLII 488 (UK JCPC), [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), 1977 CanLII 1383 (ON CA), 20 O.R. (2d) 455, at p.
[page 102]
- 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
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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 CanLII 30 (SCC), [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, 1976 CanLII 11 (SCC), [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, 1976 CanLII 8 (SCC), [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), 1981 CanLII 3313 (ON CA), 22 C.R. (3d) 224, was faced with the issue
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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), 1981 CanLII 3374 (QC CS), 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), 1981 CanLII 3236 (QC CA), 62 C.C.C. (2d) 452; Re Leroux and The Queen (1978), 1978 CanLII 2537 (QC CS), 43 C.C.C. (2d) 398 (Que. S.C.); Re Robar and The Queen (1978), 1978 CanLII 2407 (NS CA), 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), 1978 CanLII 2450 (ON SC), 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.
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The Purpose of a Preliminary Hearing
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
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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.
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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.
Analysis of the Evidence
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
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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 Crown's Position and Disposition
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), 1969 CanLII 339 (ON CA), 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
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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.
Dissenting Judgment
The reasons of Beetz, McIntyre and Chouinard JJ. were delivered by
Background and Evidence
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 District's Capital Financing Authority debenture having a face value of $25,000. The debenture was dated May 1, 1966 and it had coupons attached, each in the amount of $781.25, dated November 1 and May 1 for each year up to 1986. He retained it in his possession until October, 1980 when he mentioned it to his co-accused, Pellerin. They decided to negotiate the bond or the coupons or both. The two, Grenon and Pellerin, went to the office of the Queen's Printer where Grenon made a casting of a serial number so that it could be stamped on the debenture and its coupons. He gave the casting to Pellerin who by this time had the debenture. Pellerin then spoke to a woman friend who was employed by the Royal Trust Company at its branch on Grant Street in Victoria. He endeavoured to make arrangements with her to negotiate the debenture, but she refused.
At about the end of October the appellant Skogman opened an account at the Grant Street Branch of the Royal Trust Company in the name of one Brune who was an acquaintance, but who knew nothing of the account. The appellant then handed over for negotiation the coupons from the debenture. The coupons bore a fictitious number and had a face value of $14,843.75. On surrender of the coupons the appellant received from the trust company $2,500 cash, and the remaining $12,343.75 was deposited to the account he had opened in the name of Brune.
There was evidence identifying the appellant as the person who handed over the coupons to the Royal Trust Company on October 31 at the Grant Street branch, but there was no direct evidence of any association between the appellant and the other alleged conspirators. However, in argument
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at the preliminary hearing, counsel for the Crown said:
Mr. Pellerin gained access and custody of the coupons. He showed them to Heather Robb and Heather Robb says, "Yes, those are the items and I told him that they wouldn't pass muster because they look smudged and they are obvious forgeries."
The coupons then go from Mr. Pellerin somehow to Mr. Scogman [sic] and an inference can be drawn—and I suggest it is the only inference that can be drawn—that Mr. Scogman [sic] then joins the common purpose.
We have the identification of the coupons in Pellerin's hands and we next have Mr. Scogman [sic] showing up at Royal Trust.
And at the conclusion of the hearing, the Provincial Court Judge said in part:
I am adopting, as my reasons for committing, the submissions made by Crown counsel, Mr. Macdonald, who summarized the case. He summarized the facts very succinctly and I can do no better than merely adopt them as reasons.
I therefore am satisfied that there is sufficient evidence to put to a jury and sufficient evidence upon which a jury properly instructed could convict.
I therefore commit the accused for trial before Judge and Jury at the next court of competent jurisdiction and I am referring to the accused, Larry Cliff Scogman [sic].
The appellant petitioned the Supreme Court for an order in the nature of certiorari to quash the committal for trial. Essentially, the grounds upon which relief was sought were that evidence of an agreement between the appellant and one or more of his co-conspirators, a necessary ingredient of the charge of conspiracy, had not been tendered. It was contended that there was no evidence before the committing Provincial Court Judge of any such agreement between the appellant and the others and, therefore, there was not sufficient evidence to justify a committal. It was therefore beyond the jurisdiction of the Provincial Court Judge to commit in the circumstances.
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The Chambers Judge in the Supreme Court who heard the petition wrote a detailed and carefully considered judgment in which he reviewed many of the authorities on this question and concluded that the relief sought should be granted. He quashed the committal. At the conclusion of his reasons for judgment the Chambers Judge conveniently summarized his conclusions under six headings. The second conclusion he reached was in these terms:
(2) At the preliminary hearing, there was no evidence the accused was a member of the conspiracy alleged in the information. Put another way, there was an entire absence of evidence as a basis for the formation of a judicial opinion that the evidence was sufficient to put the accused on trial. There was only circumstantial evidence which gives rise to rational inferences other than his membership in the conspiracy.
The fourth, fifth and sixth conclusions were in these terms:
(4) The Supreme Court of Canada has approved the practice of quashing committal orders by certiorari when there is a loss of jurisdiction during the preliminary enquiry. Examples of how this can occur include denial of natural justice and failure to observe a mandatory provision of the Criminal Code.
(5) There was no breach of the rules of natural justice by reason of the committal proceedings.
(6) The Provincial Court Judge lost jurisdiction at the preliminary inquiry when he failed to observe s. 475 of the Criminal Code because he committed the accused for trial when there was no evidence of his membership in the conspiracy which justified the committal order, or put another way, there was an entire absence of evidence as a basis for the formation of a judicial opinion by him that the evidence of his membership in the conspiracy was sufficient to put the accused on trial.
The Court of Appeal was unanimous in allowing the Crown's appeal. McFarlane J.A. wrote reasons with which Craig J.A. concurred. Lambert J.A. concurred in the result but wrote separate reasons. McFarlane J.A., after outlining the facts, said:
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The appeal by the Crown to this Court is presented on the assumption that there was no evidence to support the Provincial Court Judge's opinion. It is, of course, not conceded or assumed that the circumstances did not require the Provincial Court Judge to apply his mind to the question whether he should or should not be of opinion that the evidence was sufficient to put the accused on trial. It is not suggested that there was such a complete absence of evidence that s. 475(1) could not be invoked or applied at all. The contrary is the case. There can be no doubt that at the conclusion of hearing of the evidence presented by the Crown, the Provincial Court Judge was required to form his opinion on the application of s-s. 1(a) and 1(b), i.e., to commit or discharge. The distinction is important because it points up the difference between the acquisition of jurisdiction by the Provincial Court Judge and the loss of a jurisdiction once properly acquired.
After reviewing the authorities, including Re Martin, Simard and Desjardins and The Queen (1977), 1977 CanLII 1383 (ON CA), 20 O.R. (2d) 455 (C.A.), affirmed sub nom. Martin v. The Queen, 1978 CanLII 30 (SCC), [1978] 2 S.C.R. 511; R. v. Norgren (1975), 1975 CanLII 1453 (BC CA), 27 C.C.C. (2d) 488 (B.C.C.A.); Patterson v. The Queen, 1970 CanLII 180 (SCC), [1970] S.C.R. 409; R. v. Kopan (1975), 1975 CanLII 218 (BC CA), 3 B.C.L.R. 102; Attorney General of Quebec v. Cohen, 1979 CanLII 223 (SCC), [1979] 2 S.C.R. 305; Forsythe v. The Queen, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268, he went on to say:
In the present case there was clearly no lack of jurisdiction to enter upon the preliminary inquiry. 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. 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. The question whether circumstantial evidence is equally, or more consistent with innocence than with guilt, is a question for the trial Judge or jury.
As has been said, Lambert J.A. reached the same conclusion and expressed disagreement with certain dicta from Re Martin, Simard and Desjardins and The Queen and Forsythe v. The Queen, as argued by counsel for the accused, and he followed R. v. Kopan which had held that a total lack of
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evidence on a preliminary hearing would not go to jurisdiction and permit a quashing by certiorari.
In this Court argument proceeded on the basis that there was no evidence before the Provincial Court Judge of association by the appellant with either of his co-accused, an essential ingredient of the crime of conspiracy, and therefore no basis existed for a committal for trial. The appellant argued that while there was no case directly on point in this Court, the weight of authority established that certiorari was available in Canada to quash a committal for trial and that an absence of evidence on an essential point was a ground for such relief. The Court was referred to many authorities, including Re Robar and The Queen (1978), 1978 CanLII 2407 (NS CA), 42 C.C.C. (2d) 133 (N.S. C.A.); Procureur général du Québec v. Poirier, [1981] C.A. 228, sub nom. Re Poirier and The Queen (1981), 1981 CanLII 3236 (QC CA), 62 C.C.C. (2d) 452; Stillo v. R. (1981), 1981 CanLII 3313 (ON CA), 22 C.R. (3d) 224 (Ont. C.A.); R. v. Boylan (1979), 1979 CanLII 2333 (SK CA), 8 C.R. (3d) 36 (Sask. C.A.); Re Leroux and The Queen (1978), 1978 CanLII 2537 (QC CS), 43 C.C.C. (2d) 398 (Que. S.C.); Re Mackie and The Queen (1978), 1978 CanLII 2450 (ON SC), 43 C.C.C. (2d) 269 (Ont. H.C.); Re Harrigan (1977), 1977 CanLII 2375 (NB CA), 17 N.B.R. (2d) 478 (C.A.); Chromium Mining and Smelting Corp. v. Fortin, [1968] Que. Q.B. 536; R. v. Gibbon, Bell and Faryon (1965), 1965 CanLII 678 (MB QB), 45 C.R. 314 (Man. Q.B.) Particular reliance was placed on the case of Re Martin, Simard and Desjardins and The Queen.
Counsel for the Crown argued that the point had been settled sixty years ago in R. v. Nat Bell Liquors Ltd., 1922 CanLII 488 (UK JCPC), [1922] 2 A.C. 128, and that sound grounds of policy and law supported the proposition that had been established in the British Columbia Court of Appeal to the effect that an absence of evidence will not be grounds for review of a committal for trial by certiorari. He reviewed many of the cases on the subject which illustrate the different views that have been adopted in different appellate courts in Canada and submitted that this Court should set the matter at rest with a clear pronouncement.
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Analysis of Jurisprudence
In approaching the case at bar I refer, firstly, to Patterson v. The Queen where, at a preliminary hearing into a charge of using an instrument to procure a miscarriage, the committing magistrate refused to order the production of statements made by two Crown witnesses. The accused was committed for trial and on application for a writ of certiorari the committal was quashed. The committal was restored in the Court of Appeal and the accused appealed to this Court. Judson J., speaking for himself, Abbott, Martland, Ritchie, and Pigeon JJ., Spence J. dissenting, said at pp. 411-12:
I intend to confine these reasons within the very narrow issues raised by the case and to repeat what has been emphasized so often that if it is sought to review a committal for trial, there is only one ground for action by the reviewing Court and that is lack of jurisdiction. The refusal by the magistrate, on this hearing, to order production of these statements does not go to the question of jurisdiction. In the first place, I think that his ruling was correct and, further, even if it was in error that there would still be no problem of jurisdiction.
Hall J. concurred in the result. This case I take to be clear authority for the proposition that an error in law during the course of exercising a jurisdiction is not itself jurisdictional and will not be reviewed on certiorari. The Patterson case was followed and approved in this Court in Attorney General of Quebec v. Cohen. Pigeon J. wrote the judgment in this Court in the Cohen case and referred with approval to the case of Norgren in the British Columbia Court of Appeal which dealt with the same point. The British Columbia Court of Appeal later followed and approved Norgren in the case of Kopan. These cases all have their roots in the judgment of Lord Sumner in the Nat Bell case and carry the authority of this Court.
The two cases upon which most of the argument centred in this appeal are Re Martin, Simard and Desjardins and The Queen in the Ontario Court of Appeal and in this Court, and Forsythe v. The Queen in this Court. It was argued that these cases had modified, or at least cast doubt on, the earlier cases relied upon by the Crown. In the Martin case
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orders of committal had been made after a preliminary hearing and then quashed in the High Court on certiorari. The basis of the quashing order in the High Court was that there was error of law on the face of the record. The issue in the Court of Appeal then became, in the words of Estey C.J.O. (as he then was), "whether certiorari is available to quash a committal for trial where there is an error of law on the face of the record" (p. 484). He went on to say that the Court of Appeal of Ontario had already applied the principle that excess or want of jurisdiction was the only ground upon which certiorari might apply and referred on this point to the Ontario cases of R. v. Botting, 1966 CanLII 229 (ON CA), [1966] 3 C.C.C. 373 and Re Stewart and The Queen (No. 2) (1977), 1977 CanLII 2009 (ON CA), 35 C.C.C. (2d) 281, and to the Norgren case in the British Columbia Court of Appeal. He then observed, as I have done, that these cases find their roots in the Nat Bell case. As to the extent of review on jurisdictional grounds, he referred to the words of Lord Sumner in the Nat Bell case to the effect that:
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:...
Estey C.J.O. then went on to say, at pp. 486-87:
The Code asserts this principle. Where there is any evidence at all upon a charge or issue arising thereunder, the Provincial Court Judge is called upon by s. 475 of the Code to hear it and determine "if in his opinion the evidence is sufficient to put the accused on trial ... "; and his decision is not subject to review.
Applying these judgments, some of which are binding upon this Court, 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
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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 already cited. There is, of course, a considerable volume of evidence, testimonial and documentary, and it is my view that 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 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.
The order to quash was reversed. The appeal to this Court was dismissed.
In the Martin case Estey C.J.O. went far to rationalize the conflicting case law on this question. As I read his judgment in that case, he recognized that the remedy of certiorari was jurisdictional and that it could be invoked only to cure jurisdictional error. He went on to say that it would lie to quash a committal for trial on this basis only where there was a total absence of evidence before the committing justice on which he could commit. He went on to state the test of sufficiency of evidence for a committal and drew a distinction between that amount of evidence which would warrant a committal for trial, and that lesser amount which, though not being sufficient to warrant a committal, would be sufficient to compel the committing justice to examine the evidence and reach a judicial opinion as to its sufficiency. He concluded by saying that there was such evidence, that is, evidence sufficient to put the committing justice to a decision as to its sufficiency and that, after the committing justice had addressed his mind to the evidence and reached his conclusion, the decision was not reviewable on certiorari even though wrong in law. This judgment was affirmed in this Court and is, in my view, consistent with the judgment of this
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Court in Forsythe in which case it was held that only a denial of natural justice or a failure to obey the jurisdictional prescriptions of s. 475 of the Criminal Code would justify a review and quashing of a committal by certiorari.
Application to the Present Case
To apply the above proposition to the case at bar, it should first be recognized that the parties argued the case before us on the basis that there was no evidence before the trial judge. Counsel for the Crown put it that there was no evidence of an essential ingredient of a charge of conspiracy, that is, evidence of agreement. While it could be said then that there was no evidence sufficient to meet the test for a committal—evidence which, if believed by a properly instructed jury, would justify a conviction—it could not be said that there was no evidence at all. The evidence disclosed that Grenon had stolen the debenture and the coupons. He had then given them to Pellerin and made a moulding from which a false serial number was made and put on the documents. The evidence also showed that Pellerin had approached an employee of the Royal Trust Company branch office on Grant Street in Victoria and had attempted to arrange for the negotiation of the debenture or coupons. She refused to cooperate but, after a day or two, the appellant went to the same branch of the Royal Trust Company, opened an account and negotiated the debenture coupons under a false name.
Now the parties have conceded that there was no direct evidence of association. Whatever one might think of the validity of such a concession by the Crown, it is abundantly clear that the committing justice, having heard the evidence described above, was confronted with the task of deciding whether or not there was evidence of association, and whether or not there was evidence to warrant a committal. There was no absolute lack of evidence,
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as described by Estey C.J.O. in Martin. The formation of a judicial opinion by the committing justice was therefore required under s. 475 of the Criminal Code. The justice's words in giving judgment reveal that he addressed the evidence and formed his opinion as to its sufficiency. His judgment then is not reviewable in proceedings by certiorari. It should be remembered that there were no concessions as to sufficiency of evidence made before the committing justice. He was required to address the question and reach his own conclusion. He did so, and, even though it may have been wrong in law, it is, in my view, unreviewable.
This question came to this Court again in the case of Forsythe v. The Queen. In that case, on a preliminary inquiry concerning a charge of rape, the appellant was denied the right to question the complainant with respect to her past sexual conduct with persons other than the accused in the in camera hearing held under s. 142 of the Criminal Code. He was also refused the right to examine the notes of a police officer made during an interview with the complainant and to cross-examine on them. He was committed for trial. He applied for an order quashing the committal which was denied in the Supreme Court of Ontario and his appeal to the Court of Appeal was dismissed. He appealed to this Court. The Chief Justice wrote the judgment for a unanimous Court and held that certiorari may be involved to quash a committal. He referred to the Patterson case and said, 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 1976 CanLII 11 (SCC), [1977] 1 S.C.R. 597. Canadian law recognizes that a denial of natural justice goes to jurisdiction: see Alliance des Professeurs catholiques de Montréal v. Labour Relations Board of Quebec 1953 CanLII 45 (SCC), [1953] 2 S.C.R. 140.
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ln the case of a preliminary inquiry, I cannot conceive that this could arise otherwise than by a complete denial to the accused of a right to call witnesses or of a right to cross-examine prosecution witnesses. More disallowance of a question or questions on cross-examination or other rulings on proffered evidence would not, in my view, amount to a jurisdictional error. However, the judge or magistrate who presides at a preliminary inquiry has the obligation to obey the jurisdictional prescriptions of s. 475 of the Criminal Code.
He went on to comment on the case of Attorney General of Quebec v. Cohen. The Forsythe appeal was dismissed.
It is evident then that this Court has held that only a denial of natural justice or a failure to "obey the jurisdictional prescriptions of s. 475 of the Criminal Code" will serve to permit the quashing of a committal for trial by certiorari.
How would this apply to the case at bar? It has never been suggested that there was any denial of natural justice. The inquiry was conducted in a normal open fashion and the appellant was in no way impeded in the conduct of the case. What of the jurisdictional prescriptions of s. 475? Section 475 is reproduced hereunder:
- (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.
The committing judge is required upon the conclusion of the evidence to form an opinion either that the evidence is sufficient for a committal or that it is not. If, in his opinion, it is sufficient, he must commit, and if, in his opinion, it is not, he must discharge. In his reasons the Provincial Court
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Judge clearly addressed this issue and complied with the jurisdictional prescriptions of the section by forming a judicial opinion as to the sufficiency of the evidence. His words in this respect have already been referred to. Even if he was wrong in forming his opinion, it cannot be said that he lost jurisdiction in the last act of a heretofore properly conducted hearing merely by making a mistake in law. There was clearly before him enough evidence, in the words of Estey C.J.O., to require him to address the question and to form a judicial opinion as to its sufficiency for a committal. This he did with no suggestion of bias or other improper motive. Even if he was wrong, he addressed his mind to the issues and his determination is not reviewable on certiorari.
I would dismiss the appeal and I would say that where, in a preliminary hearing, there is no denial of natural justice then, even in an absence of evidence on an essential point in an offence charged, where the committing magistrate has addressed his mind to the requirements of s. 475 of the Criminal Code and decided that in his opinion there is sufficient evidence to commit, the resulting order of committal is unreviewable on certiorari. If it is thought necessary to provide a means of appeal or a review of committals, Parliament may do so.
Appeal allowed, BEETZ, MCINTYRE and CHOUINARD JJ. dissenting.
Solicitor for the appellant: Christopher Brennan, Victoria.
Solicitor for the respondent: The Ministry of the Attorney General of British Columbia, Victoria.
