R. v. Litchfield, [1993] 4 S.C.R. 333

Her Majesty The Queen Appellant

v.

Bryant Floyd Litchfield Respondent

Indexed as: R. v. Litchfield

File No.: 22896.

1993: June 7; 1993: November 18.

Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for alberta

Practice ‑‑ Collateral attack ‑‑ Sexual assault by practising male physician on female patients ‑‑ Counts severed and divided by judge in chambers before indictment preferred before trial judge ‑‑ Three trials to be held depending on whether assault dealt with genitals, breasts or other areas of body ‑‑ Trial judge refusing to admit evidence between counts ‑‑ Application for non‑suit granted ‑‑ Whether this Court had jurisdiction to review pre‑trial severance order ‑‑ If so, whether pre‑trial severance order should be set aside ‑‑ Whether any of the evidence excluded at trial should have been admitted ‑‑ Whether non‑suit should have been granted ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 265(1)(a), (2), (3)(c), 590(3), 591(3)(a), (4), 645(5), 676(1)(a), 686(4)(a), (b)(i), 693(1)(b).

Practice ‑‑ Non‑suit ‑‑ Sexual assault by practising male physician on female patients ‑‑ Counts severed and divided by judge in chambers before indictment preferred before trial judge ‑‑ Three trials to be held depending on whether assault dealt with genitals, breasts or other areas of body ‑‑ Trial judge refusing to admit evidence between counts ‑‑ Application for non‑suit granted ‑‑ Whether this Court had jurisdiction to review pre‑trial severance order ‑‑ If so, whether pre‑trial severance order should be set aside ‑‑ Whether any of the evidence excluded at trial should have been admitted ‑‑ Whether non‑suit should have been granted.

Jurisdiction ‑‑ Appellate courts ‑‑ Pre‑trial severance of counts of sexual assault ‑‑ Three trials to be held depending on whether assault dealt with genitals, breasts or other areas of body ‑‑ Trial judge refusing to admit evidence between counts ‑‑ Application for non‑suit granted ‑‑ Whether this Court had jurisdiction to review pre‑trial severance order ‑‑ If so, whether pre‑trial severance order should be set aside ‑‑ Whether any of the evidence excluded at trial should have been admitted ‑‑ Whether non‑suit should have been granted.

Evidence ‑‑ Sexual assault by practising male physician on female patients ‑‑ Counts severed and divided by judge in chambers before indictment preferred before trial judge ‑‑ Three trials to be held depending on whether assault dealt with genitals, breasts or other areas of body ‑‑ Trial judge refusing to admit evidence between counts ‑‑ Application for non‑suit granted ‑‑ Whether this Court had jurisdiction to review pre‑trial severance order ‑‑ If so, whether pre‑trial severance order should be set aside ‑‑ Whether any of the evidence excluded at trial should have been admitted ‑‑ Whether non‑suit should have been granted.

Criminal law ‑‑ Sexual assault ‑‑ Sexual assault by practising male physician on female patients ‑‑ Counts severed and divided by judge in chambers before indictment preferred before trial judge ‑‑ Three trials to be held depending on whether assault dealt with genitals, breasts or other areas of body ‑‑ Trial judge refusing to admit evidence between counts ‑‑ Application for non‑suit granted ‑‑ Whether this Court had jurisdiction to review pre‑trial severance order ‑‑ If so, whether pre‑trial severance order should be set aside ‑‑ Whether any of the evidence excluded at trial should have been admitted ‑‑ Whether non‑suit should have been granted.

Respondent, a family physician, was charged with 14 counts of sexual assault involving seven female patients who had attended at his office for medical treatment and diagnosis. Each had consented to being touched for valid medical reasons in intimate areas of her body.

Prior to trial, respondent applied for an order that each count be tried separately or alternatively that the counts be severed by complainant. The judge hearing the motion (not the trial judge) ordered that three different trials be held depending on the part of the complainant's body involved in the assault ‑‑ genitalia, breasts or other matters. The counts therefore were not only severed but also divided such that separate trials were to be held for events that occurred within one visit to the respondent's office by the same complainant.

In a trial by judge alone, the Crown first proceeded on those counts relating to vaginal examinations. The trial judge refused the Crown's motion to hold a voir dire to determine the admissibility of the evidence relating to the severed counts and ruled that the Crown could proceed by calling all of the evidence relating to the severed counts, subject to a subsequent ruling on admissibility. The Crown called all of the evidence relating to the severed counts, as well as the evidence of the complainants in the trial going to the counts before the court and the evidence of two medical experts. The trial judge, on a voir dire, refused to admit the evidence of several other women of similar assaults by the respondent. He also refused to admit the testimony of the respondent's ranking medical officer as to counselling the respondent had received from her after complaints were lodged against him while he practised in the military. The trial judge subsequently ruled all the evidence relating to the severed counts inadmissible as irrelevant or, even if relevant, too prejudicial. The respondent successfully brought a motion for a non‑suit at the close of the Crown's case and was acquitted. The Court of Appeal dismissed the Crown's appeal. At issue here were: (1) whether this Court had jurisdiction to review a pre‑trial severance order, and (2) if so, whether the pre‑trial severance order should be set aside; (3) whether any of the evidence excluded at trial should have been admitted; and (4) whether a non‑suit should have been granted.

Held: The appeal should be allowed.

Per La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: Sexual assault is a crime of general intent. The Crown need not prove a specific intent with respect to the sexual nature of the assault because it forms part of the actus reus. The test is therefore an objective one. All the circumstances surrounding the conduct in question will be relevant to the question of whether the touching was of a sexual nature and violated the complainant's sexual integrity. Courts in individual cases should not create unnecessary barriers to considering all the circumstances surrounding conduct alleged to constitute a sexual assault, particularly where the complainant has consented to some touching but not to touching of a sexual nature. The nature of a complainant's relationship to her alleged assaulter, including the patient's lack of power and knowledge and the doctor's duty to perform medical examinations only for the patient's good, must all figure in a determination of whether the patient in fact consented to the conduct in question.

At first blush, the pre‑trial severance order could not be appealed as part of the respondent's acquittal without violating the rule against collateral attack: a court order, made by a court having jurisdiction to make it, may not be attacked in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or the judgment. Given a strict application of the rule, the trial judge would not have had the power to review the division and severance order because the specific object of the proceedings was not its reversal, variation or nullification. Consequently, there would have been no error of law committed with respect to proceeding on the division and severance order at the trial upon which an appeal of the verdict reached during the trial could be founded. The result would be that neither the Court of Appeal nor this Court would have jurisdiction to review, much less to set aside, the division and severance order.

The rule against collateral attack should not be strictly applied here. The rule was not intended to immunize court orders from review but to maintain the rule of law and to preserve the repute of the administration of justice. The principles based on certainty and on the need for the orderly and functional administration of justice which lie behind the rule against collateral attack are not applicable in the case of a pre‑trial division and severance order. Such an order does not govern the conduct of the parties but rather regulates the judicial process itself. Allowing a collateral attack at trial on such an order would not jeopardize the rule of law or damage the repute of the administration of justice. Indeed the order would have been subject to review by appellate courts along with the verdict if it had been made by a trial judge. Procedure cannot govern substance ‑‑ an order so erroneous that it results in a fundamentally flawed trial process cannot be allowed to stand.

The pre‑trial division and severance order could be reviewed by the trial judge and set aside if in error. The trial judge's failure to refuse to follow the pre‑trial division and severance order, if erroneous, would constitute an error of law reviewable on appeal to this Court.

An indictment is preferred only when it is lodged with the trial judge. An accused need not wait until the actual trial date to bring an application to divide or sever counts. The indictment can be preferred once the trial judge has been assigned and a severance application can be brought after the indictment has been preferred but before the court has been constituted to begin hearing evidence. As a matter of practice and policy, the trial judge should hear applications to divide and sever counts. Such orders are not immunized from review and needless duplication is avoided.

The division or severance of a count requires the exercise of a great deal of discretion given the breadth of the criteria governing division and severance ‑‑ the court must be satisfied that the ends of justice require the order. An appellate court should not interfere with the exercise of this discretion unless it is shown that the issuing judge acted unjudicially or that the ruling resulted in an injustice. The order at issue here worked an injustice towards the Crown, the complainants and the administration of justice in that it placed an artificial barrier to the trial judge's ability to consider the respondent's conduct in all the circumstances. The order had to be set aside given its jurisdictional and substantive flaws and given the trial judge's errors in applying it.

All the evidence by the complainants going to the severed counts should have been admitted with respect to all the counts before the trial judge. It was relevant to several important issues and its prejudicial effect would not outweigh its probative value. The evidence of other touching, while it might be characterized as similar acts, was not tendered solely to show that the respondent was a person of bad character or of a disposition likely to commit the offences, but rather to provide information highly relevant to understanding the context in which the offences occurred. This evidence was admissible. The trial judge did not weigh the probative value of the evidence or specify its prejudicial effects.

The evidence of the respondent's superior officer from his time of military practice was relevant to the nature and quality of the acts which respondent performed on the complainants and specifically to whether he was carrying out proper medical procedures. The hearsay rule was wrongly applied here to exclude the evidence. This evidence was not hearsay.

The admissibility of other evidence excluded by the trial judge should be left to the discretion of the trial judge in the new trial.

The motion for non‑suit should not have been granted because there was admissible evidence which, if believed by a properly charged jury acting reasonably, would justify conviction. Here, the trial judge made the determination on the application for a non‑suit in his capacity as trial judge and not as trier of fact because he made no determinations of weight and credibility prior to reaching his decision. Other errors made over the course of the trial judge's ruling also made it impossible for the order to stand. Even with the trial judge's rulings on the admissibility of evidence, there was some evidence, both direct and circumstantial, which, if believed by a properly instructed jury acting reasonably, could have resulted in convictions. Under a correct approach to the admissibility of the evidence, there would have been all the more evidence to satisfy the standard.

Per McLachlin J.: In Alberta, it appears to be standard practice to arraign an accused before the trial for the purposes of taking pleas and pre-trial orders. This procedure allows severance motions to be heard prior to trial without seizing the chambers judge of the matter. The indictment is preferred and trial proceedings begin upon arraignment even though that may be months before a judge and jury are empanelled. The suggestion in R. v. Chabot that the indictment is not preferred until it is presented in the presence of the accused before a trial court constituted to dispose of the case, does not apply to pre‑trial arraignments in Alberta. The rule against collateral attack would present no difficulty in cases like this one because the severance order is part of the trial proceedings. As such, it was appealable. In the alternative, if the order were taken to have preceded the preferment of the indictment and not to be part of the trial, there should be an exception to the rule against collateral attack where the Alberta procedure has been followed.

Cases Cited

By Iacobucci J.

Considered: R. v. Chase, [1987] 2 S.C.R. 293; Norberg v. Wynrib, [1992] 2 S.C.R. 226; R. v. Chabot, [1980] 2 S.C.R. 985; referred to: Mills v. The Queen, [1986] 1 S.C.R. 863; Wilson v. The Queen, [1983] 2 S.C.R. 594; B.C. (A.G.) v. Mount Currie Indian Band (1991), 54 B.C.L.R. (2d) 129; R. v. Pastro (1988), 42 C.C.C. (3d) 485; R. v. Meltzer, [1989] 1 S.C.R. 1764; R. v. Garofoli, [1990] 2 S.C.R. 1421; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. Deol, Gill and Randev (1979), 20 A.R. 595; R. v. Martel (1986), 63 Nfld. & P.E.I.R. 39; R. v. Barbeau, [1992] 2 S.C.R. 845; R. v. Watson (1979), 12 C.R. (3d) 259; R. v. Auld (1957), 26 C.R. 266; R. v. Kestenberg and McPherson (1959), 126 C.C.C. 387; R. v. Christie, [1914] A.C. 545; R. v. C. (M.H.), [1991] 1 S.C.R. 763; R. v. Monteleone, [1987] 2 S.C.R. 154; United States of America v. Shephard, [1977] 2 S.C.R. 1067; Deyong v. Weeks (1983), 43 A.R. 342.

By McLachlin J.

Considered: R. v. Chabot, [1980] 2 S.C.R. 985; R. v. Brackenbury and Pratt (1981), 61 C.C.C. (2d) 6; referred to: Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Deol, Gill and Randev (1979), 20 A.R. 595.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, ss. 265(1)(a), (2), (3)(c), 590(3), 591(3)(a) [am. R.S.C., 1985, c. 27 (1st Supp.), s. 119], (4) [am. idem], 645(5) [am. ibid., s. 133], 676(1)(a) [am. ibid., s. 139], 686(4)(a), (b)(i), 693(1) [am. ibid., s. 146], (b) [am. R.S.C., 1985, c. 34 (3rd Supp.), s. 12].

Authors Cited

McWilliams, Peter K. Canadian Criminal Evidence, 3rd ed. Release No. 10. Aurora, Ont.: Canada Law Book, 1993 (loose-leaf).

Salhany, R. E. Canadian Criminal Procedure, 5th ed. Aurora, Ont.: Canada Law Book, 1989.

Sharpe, Robert J. Injunctions and Specific Performance. Toronto: Canada Law Book, 1983.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.

APPEAL from a judgment of the Alberta Court of Appeal (1992), 1992 ABCA 17, 120 A.R. 391, dismissing an appeal from acquittal by Hope J. at trial following pre‑trial severance of indictment by McDonald J. in chambers. Appeal allowed.

Goran Tomljanovic, for the appellant.

Robert B. White, Q.C., and D. Stam, for the respondent.

The judgment of La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by

Iacobucci J. -- There are several issues in this appeal. First, does this Court have jurisdiction to review a pre-trial order dividing and severing counts in an indictment? Second, if so, should the order in this case be set aside? The third issue in this appeal concerns the admissibility of the testimony of various witnesses. Finally, did the trial judge err in granting the respondent's motion for a non-suit and entering acquittals?

I. Facts

The respondent was a family physician practising in Edmonton. The respondent was charged with 14 counts of sexual assault involving seven complainants who were his patients at all relevant times. The assaults were alleged to have occurred while the complainants attended at the respondent's office for medical treatment and diagnosis. Each of the complainants consented to being touched in intimate areas of her body but that consent was predicated upon the touching being carried out for valid medical purposes.

Prior to trial, the respondent applied for an order that each of the counts alleged against him be tried separately. He requested in the alternative that the counts be severed by complainant. McDonald J., who was not the trial judge, heard the application. He did not order a separate trial for each count, but instead ordered that three different trials be held depending on the part of the complainant's body that was involved in the assault. McDonald J. ordered one trial for allegations involving the complainants' genitalia, a second trial for allegations concerning the complainants' breasts, and a third trial for any other matters. This resulted in an order that not only severed but also divided counts, such that separate trials were to be held for events that occurred within one visit to the respondent's office by the same complainant.

The respondent elected to be tried by judge alone. The Crown proceeded to trial first on those counts relating to vaginal examinations (nine counts in total), and sought to have the admissibility of the evidence relating to the severed counts determined at a voir dire at the outset of the trial. Hope J., the trial judge, refused to hold a voir dire and ruled that the Crown could proceed by calling all of the evidence relating to the severed counts, subject to a subsequent ruling on admissibility. The Crown called all of the evidence relating to the severed counts, as well as the evidence of the complainants in the trial going to the counts before the court and the evidence of two medical experts. After a voir dire during the trial, the trial judge admitted the evidence of the police officer who testified to the respondent's statement to the police. After another voir dire, the trial judge refused to admit the evidence of several other women who stated on the voir dire that they had experienced similar assaults by the respondent. He also refused to admit the testimony of the respondent's ranking medical officer as to counselling the respondent had received from her after complaints were lodged against the respondent while he practised in the military. The trial judge subsequently ruled all the evidence relating to the severed counts inadmissible as irrelevant or, even if relevant, too prejudicial.

At the close of the Crown's case, the respondent brought a motion for a non-suit. The trial judge granted the application and the respondent was acquitted. The Crown's appeal was dismissed by the Court of Appeal (1992), 1992 ABCA 17, 120 A.R. 391, and this Court granted leave to appeal.

II. Relevant Legislation

Criminal Code, R.S.C., 1985, c. C-46, as amended:

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(2) This section applies to all forms of assault, including sexual assault... .

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(c) fraud... .

590. ...

(3) The court may, where it is satisfied that the ends of justice require it, order that a count be amended or divided into two or more counts, and thereupon a formal commencement may be inserted before each of the counts into which it is divided.

591. ...

(3) The court may, where it is satisfied that the interests of justice so require, order

(a) that the accused or defendant be tried separately on one or more of the counts; ...

(4) An order under subsection (3) may be made before or during the trial....

645. ...

(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.

676. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;

686. ...

(4) Where an appeal is from an acquittal, the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) order a new trial. ...

693. (1) Where a judgment of a court of appeal... dismisses an appeal taken pursuant to paragraph 676(1)(a), ... the Attorney General may appeal to the Supreme Court of Canada

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

III. Issues

1. Does this Court have jurisdiction to review a pre-trial severance order?

2. If so, should the pre-trial severance order be set aside?

3. Should any of the evidence excluded by the trial judge have been admitted?

4. Did the trial judge err in granting a non-suit?

IV. Analysis

Before directly discussing the issues raised in this appeal, I think it is important to keep in mind the nature of the offence of sexual assault as well as the specific manifestation of the alleged sexual assaults in a doctor-patient relationship.

The sexual aspect of a sexual assault forms part of the actus reus; there is no requirement that a person accused of sexual assault have any mens rea with respect to the sexual nature of a sexual assault. This was the holding of this Court in R. v. Chase, [1987] 2 S.C.R. 293, which decided that sexual assault is a crime of general intent and that the Crown did not have to prove a specific intent with respect to the sexual nature of the assault. As McIntyre J. wrote for the Court at p. 302:

The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual.... It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

The test to be applied in determining whether an accused's conduct had the requisite nature to constitute a sexual assault is therefore an objective one. As this Court indicated in Chase, all the circumstances surrounding the conduct in question will be relevant to the question of whether the touching was of a sexual nature and violated the complainant's sexual integrity. It is therefore important in individual cases that courts not create unnecessary barriers to considering all the circumstances surrounding conduct which is alleged to constitute a sexual assault. This is particularly true where the complainant has consented to some touching but not to touching of a sexual nature: in such a case, the court must have at its disposal as much relevant information as possible in order to determine whether the conduct was of a nature to which the complainant did not consent.

The importance of looking to all the circumstances surrounding an accused's impugned conduct is thrown into relief by a case such as that under consideration in this appeal, where a doctor-patient relationship is concerned. Certainly, medical evidence will be important to assessing the nature of an accused physician's conduct. However, when determining whether a complainant in fact consented to that which occurred, courts must also ensure that they neither ignore the testimony of a patient who complains of sexual assault nor underestimate the position of vulnerability in which a patient often finds herself when she is in the care of a professional medical doctor. All of the opinions in the judgment of this Court in Norberg v. Wynrib, [1992] 2 S.C.R. 226, recognized the imbalance of power that may occur between a doctor and a patient where an alleged sexual assault is concerned.

La Forest J. (Gonthier and Cory JJ. concurring) stated at p. 258: "An unequal distribution of power is frequently a part of the doctor-patient relationship". McLachlin J., who also wrote for L'Heureux-Dubé J., focused on the fiduciary nature of the doctor-patient relationship and wrote at p. 272:

I think it is readily apparent that the doctor-patient relationship shares the peculiar hallmark of the fiduciary relationship -- trust, the trust of a person with inferior power that another person who has assumed superior power and responsibility will exercise that power for his or her good and only for his or her good and in his or her best interests.

Thus the nature of a complainant's relationship to her alleged assaulter, including the patient's lack of power and knowledge as well as the doctor's duty to perform medical examinations only for the good of the patient and in the patient's best interest, must be kept in mind when determining whether the patient in fact consented to the conduct in question. As Sopinka J. wrote in Norberg at p. 304 in the context of tortious sexual battery:

In assessing the reality of consent and the existence and impact of any of the factors that tend to negate true consent, it is important to take a contextually sensitive approach. In relation to medical procedures, several courts have emphasized the need to consider all relevant surrounding circumstances in assessing whether there was valid consent....

Certain relationships, especially those in which there is a significant imbalance in power or those involving a high degree of trust and confidence may require the trier of fact to be particularly careful in assessing the reality of consent.

With these considerations in mind, I now turn to the issues in this case.

1. Does this Court have jurisdiction to review a pre-trial division and severance order?

As an introductory matter, McDonald J. should have noted that he was not only severing the existing counts in the indictment but was also dividing the counts. The indictment against the respondent contained 14 counts, each of which related to one entire visit by the relevant complainant to the respondent's office. For example, count 13 alleged that the respondent committed a sexual assault on one complainant on July 28, 1989. The complainant's testimony about that visit referred to both a breast examination and a vaginal examination. McDonald J. ordered that count 13 should be tried in one trial as far as the breast examination was concerned, and that count 13 should be tried in another trial as far as the internal examination was concerned. In proceeding as he did, McDonald J. divided some of the counts and then severed the divided counts. However, he made no reference in his ruling to dividing the counts, which a court is enabled to do under s. 590(3) of the Code, and the indictment was never amended to reflect the division. As I mentioned above, the respondent did not request this particular order, but rather brought an application seeking separate trials for each count or, alternatively, for each complainant.

When it appealed the respondent's acquittals, the Crown sought to have the division and severance order set aside. The respondent submitted before this Court that the division and severance order was the result of an interlocutory motion from which no appeal lies. Appeals in the criminal context are entirely statutory and the Code contains no provision for immediate appeal from an interlocutory order. See, e.g., Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 959, where McIntyre J. stated for the majority:

It has long been a settled principle that all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters.... It will be observed that interlocutory appeals are not authorized in the Code.

It is not disputed that the Crown could not have appealed the division and severance order prior to the trial. However, the question in this appeal is whether the Crown can appeal the division and severance order as part of its appeal of the respondent's acquittal.

The answer to this question is not straightforward. The division and severance order in this case was not made by the trial judge. It was made by a superior court judge on a motion brought prior to the trial. At first blush, the order cannot be appealed as part of the respondent's acquittal without violating the rule against collateral attack. This rule holds that "a court order, made by a court having jurisdiction to make it," may not be attacked "in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment" (Wilson v. The Queen, [1983] 2 S.C.R. 594, per McIntyre J., at p. 599). The lack of jurisdiction which would oust the rule against collateral attack would be a lack of capacity in the court to make the type of order in question, such as a provincial court without the power to issue injunctions. However, where a judge, sitting as a member of a court having the capacity to make the relevant type of order, erroneously exercises that jurisdiction, the rule against collateral attack applies. See, e.g., B.C. (A.G.) v. Mount Currie Indian Band (1991), 54 B.C.L.R. (2d) 129 (S.C.), at p. 141, and R. v. Pastro (1988), 42 C.C.C. (3d) 485 (Sask. C.A.), at pp. 498-99, per Bayda C.J.S. Such an order is binding and conclusive until set aside on appeal.

The rule against collateral attack has been re-affirmed by this Court on numerous occasions, such as in R. v. Meltzer, [1989] 1 S.C.R. 1764, R. v. Garofoli, [1990] 2 S.C.R. 1421, and Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, per McLachlin J. at p. 973, citing R. J. Sharpe, Injunctions and Specific Performance (1983).

The respondent's trial would not have been a proceeding in which the specific object was the reversal, variation or nullification of the division and severance order. Therefore, under a strict application of the rule against collateral attack, the trial judge would have had no power to review the division and severance order. Consequently, there would have been no error of law committed with respect to proceeding on the division and severance order at the trial upon which an appeal of the verdict reached during the trial could be founded. The result would be that neither the Court of Appeal nor this Court would have jurisdiction to review, much less to set aside, the division and severance order.

In my opinion, however, this is not the case for a strict application of the rule against collateral attack which was not intended to immunize court orders from review. The rationale behind the rule is powerful: the rule seeks to maintain the rule of law and to preserve the repute of the administration of justice. To allow parties to govern their affairs according to their perception of matters such as the jurisdiction of the court issuing the order would result in uncertainty. Further, "the orderly and functional administration of justice" requires that court orders be considered final and binding unless they are reversed on appeal (R. v. Pastro, supra, at p. 497). However, these principles behind the rule against collateral attack are not applicable in the case of a pre-trial division and severance order.

A pre-trial division and severance order does not govern the conduct of the parties but rather regulates the judicial process itself. Such an order is purely related to the procedure of an accused's trial. Another way of stating the matter is that a pre-trial division and severance order is only concerned with a court's controlling its own process within the confines of the same litigation. Therefore, to allow a collateral attack at trial before a superior court on a pre-trial division and severance order made by a superior court would not jeopardize the rule of law or damage the repute of the administration of justice. Further, if the order had been made by a trial judge, it would have been subject to review by appellate courts along with the verdict. To permit an order to stand which is so erroneous that it results in a trial process that is fundamentally flawed would result in procedure governing substance; a result that cannot be accepted.

Accordingly, in the narrow circumstances of this case, I would recognize some flexibility in the rule against collateral attack and hold that the pre-trial division and severance order was liable to be reviewed and, if made erroneously, set aside by the trial judge. The failure of the trial judge to refuse to follow the pre-trial division and severance order, if erroneous, would constitute an error of law reviewable on appeal to this Court.

As the next portion of my reasons will show, there should be little occasion for this exception to the rule against collateral attack to be applied in the future since I am of the opinion that only the trial judge ever has jurisdiction to issue a division and severance order.

2. Should the division and severance order be set aside?

The division and severance order is anomalous in that severance orders are usually made by the trial judge, in which case the order would be appealable as part of the verdict. Indeed, for the reasons that follow, I am of the opinion that no one but the trial judge has jurisdiction to issue a severance order.

Logically, an accused cannot bring a motion to quash an indictment, or to divide or sever counts in an indictment, until the indictment has been preferred. Until the indictment has been preferred, it does not exist as against the accused, is not legally effectual, and therefore is not subject to being altered or quashed.

That motions respecting the indictment can only be brought once the indictment is preferred was recognized by the Alberta Court of Queen's Bench in R. v. Deol, Gill and Randev (1979), 20 A.R. 595. The same conclusion was reached by the Prince Edward Island Supreme Court in R. v. Martel (1986), 63 Nfld. & P.E.I.R. 39. See also Salhany, Canadian Criminal Procedure (5th ed. 1989), at p. 189:

Once an indictment is preferred, the defence is entitled to bring an application to quash that indictment for a defect of substance or form. Similar applications may be brought for particulars of the indictment, to sever the counts in the indictment or to sever the trial of accused who are jointly charged. [Emphasis added.]

Statements to the same effect have been made by this Court. For example, in R. v. Chabot, [1980] 2 S.C.R. 985, Dickson J., as he then was, stated for the Court at p. 990: "After presentment of the indictment, the accused is free to move to quash the indictment by motion made in the trial court...." Similarly, in R. v. Barbeau, [1992] 2 S.C.R. 845, Cory J. wrote for the Court at p. 856: "After the preferment of the indictment for sexual assault, defence counsel could have challenged... this indictment".

The next question to ask is when is an indictment preferred against an accused. In Chabot, this Court held that an indictment is preferred only when it is lodged with the trial court properly constituted and ready to proceed, at the opening of the accused's trial. Dickson J. held for the Court as follows at p. 999:

... I would hold that an indictment based upon a committal for trial without the intervention of a grand jury is not "preferred" against an accused until it is lodged with the trial court at the opening of the accused's trial, with a court ready to proceed with the trial.

According to the Chabot test, the indictment against the respondent was not preferred until it was lodged with Hope J. at the opening of the respondent's trial. Therefore, McDonald J. had no jurisdiction to divide or sever the counts since the indictment had not been preferred against the respondent at the time of the application. A further conclusion is that no one except the trial judge ever has jurisdiction to divide or sever counts since an indictment is only preferred at the opening of an accused's trial.

This does not mean that an accused must wait until the actual trial date to bring an application to divide or sever counts. Once a trial judge has been assigned to the matter, the indictment can be preferred against the accused by lodging it with the trial judge. Since Chabot, the Code has been amended such that in jury trials the trial judge need not be ready to proceed with the trial to deal with matters such as the validity of the indictment. Subsection 645(5) of the Code provides:

645. ...

(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.

Thus, under s. 645(5), the trial judge can deal with matters concerning the indictment prior to the selection and calling of a jury, in the case of a jury trial. It was always open to a trial judge in the case of a trial by judge alone to hear pre-trial motions before preparing to hear evidence. The judge hearing the application for severance of counts in an indictment would either have to have been assigned as the trial judge or else would be seized of the trial upon the preferring of the indictment and the subsequent hearing of the severance application.

The statement in s. 591(4) of the Code that a severance order may be made "before or during the trial" (emphasis added) is not deprived of its meaning under this approach to jurisdiction. A severance application brought after the indictment is preferred but before the court is constituted to begin hearing evidence would be brought before the trial.

Moreover, as a matter of practice and policy, it is obviously preferable that the trial judge hear applications to divide and sever counts so that such orders are not immunized from review. Otherwise, procedure begins to govern substance. Indeed, it makes sense that the trial judge consider applications to divide and sever counts since an order for division or severance of counts will dictate the course of the trial itself. Courts have recognized that it is preferable that trial judges make division and severance orders (see, e.g., R. v. Watson (1979), 12 C.R. (3d) 259 (B.C.S.C.), and R. v. Auld (1957), 26 C.R. 266 (B.C.C.A.)). Not only are trial judges better situated to assess the impact of the requested severance on the conduct of the trial, but limiting severance orders to trial judges avoids the duplication of efforts to become familiar enough with the case to determine whether or not a severance order is in the interests of justice. It seems desirable, therefore, that in the future only trial judges can make orders for division or severance of counts in order to avoid injustices such as occurred in this case.

Even had McDonald J.'s order been solid on jurisdictional grounds, I would be inclined to set it aside. The criteria for when a count should be divided or a severance granted are contained in ss. 590(3) and 591(3) of the Code. These criteria are very broad: the court must be satisfied that the ends or interests of justice require the order in question. Therefore, in the absence of stricter guidelines, making an order for the division or severance of counts requires the exercise of a great deal of discretion on the part of the issuing judge. The decisions of provincial appellate courts have held, and I agree, that an appellate court should not interfere with the issuing judge's exercise of discretion unless it is shown that the issuing judge acted unjudicially or that the ruling resulted in an injustice. See, for example, R. v. Kestenberg and McPherson (1959), 126 C.C.C. 387 (Ont. C.A.), in which Porter C.J.O. stated, at p. 392, with regard to the trial judge's refusal to order a severance:

Unless it is shown that he acted unjudicially in the exercise of his discretion or that an injustice might have resulted from the joint trial, his decision should not be disturbed....

McDonald J.'s order for division and severance resulted in an injustice in this case when it divided and severed the counts based on the body parts of the complainants. This arbitrary distinction greatly amplified the difficulties in assessing the alleged sexual assaults in the context of all of the circumstances surrounding the conduct by creating an evidentiary problem which would not have existed but for the order. With respect, the order reveals a misapprehension about the nature of the offence of sexual assault and the considerations that go into assessing if a particular procedure alleged to be medically proper and necessary constitutes a sexual assault.

McDonald J. held that proof that the respondent had performed one act (such as a breast examination) on the complainant which was not for the purposes of treatment or diagnosis would have no probative value with regard to whether or not another act (such as a vaginal examination) performed by the respondent on the complainant was for the purposes of treatment or diagnosis. In so holding, McDonald J. was in error. As stated above, this Court emphasized in Chase that the court must look to all the circumstances surrounding the conduct in determining the nature and quality of the act. For example, if the respondent acted improperly towards a complainant during one part of a physical examination, evidence of that improper conduct would be relevant to assessing the respondent's conduct at other times during the examination.

The practical effect of McDonald J.'s order for division and severance was to create an unnecessary evidentiary problem by rendering evidence about one part of one visit to the respondent potentially inadmissible as regards another part of the same visit to the respondent's office since different parts of the same visit to the respondent would be contained in separate counts. McDonald J.'s discussion of the irrelevance and lack of probative value of the evidence of one type of act (breast examinations) to another type of act (internal examinations) was referred to directly by Hope J. in his decision to declare the evidence going to the severed counts inadmissible. As I will discuss below, the decision to exclude the evidence going to the severed counts was in error and prejudiced the Crown in its ability to make out its case. The division and severance order worked an injustice towards the Crown, the complainants and the administration of justice in that it placed an artificial barrier to the trial judge's ability to consider the respondent's conduct in all the circumstances.

I do not wish to leave this matter without making one final comment on McDonald J.'s severance order. The order denies the reality of how the complainants experienced the conduct which they have alleged constituted sexual assaults. Each aspect of one complainant's contact with the respondent interlocks with all the other aspects to form the larger context within which that complainant felt that the respondent's actions were inappropriate. Further, the message that a division and severance order in a sexual assault case based on the complainant's body parts sends to women is that the complainant's physical attributes are more important than her experience as a whole person. The order severed the complainants as well as the counts. In my opinion, the message sent by the order, although not intended to have this effect and although not amounting to an error of law, is inappropriate.

Given these jurisdictional and substantive flaws in McDonald J.'s order for division and severance of the counts, and that it was an error for Hope J. to apply the order, it must be set aside.

3. Should any of the evidence excluded by the trial judge have been admitted?

(a) Evidence going to the severed counts

As I stated above, Hope J. was in error to exclude the evidence going to the severed counts. Hope J. declared that the evidence of the complainants going to the severed counts was generally inadmissible as irrelevant or, in the alternative, too prejudicial. He ruled as follows:

Having regard to the severance order of Justice McDonald, which in effect has said there is to be for trial purposes at least two trials, based upon the sections of the body, I am unable to say that I can find relevancy of evidence which I would expect to come from complainants in the second trial to the counts in this trial. In the event that I am in error, I would not admit that evidence since, in my opinion, the prejudicial effect of admission of such evidence would be greater than its probative value.

With respect, I disagree.

The counts should not have been divided so as to separate a breast examination from a vaginal examination or any other type of touching that occurred during a single visit to the respondent. However, even with the counts divided as they were, there should have been no question as to the admissibility of the evidence of other touching that occurred during the same appointment with the respondent as the vaginal examination being considered by the trial judge, or of evidence given by one complainant about other visits she had with the respondent.

The evidence of one complainant about one visit to the respondent is simply evidence of the events surrounding the alleged sexual assault. This evidence raises no similar fact or similar act evidence considerations and was clearly relevant. The trial judge did not determine the probative value of the evidence, specify its prejudicial effect, or weigh one against the other. I am of the opinion that the evidence regarding acts other than vaginal examinations was not prejudicial at all where the evidence of one complainant with respect to her experience with the respondent is concerned since it is simply evidence about the nature of the complainant's professional relationship with the respondent. On the other hand, that evidence if accepted by a trier of fact would be probative of the circumstances in which the internal examinations occurred which in turn would be probative of the nature of the respondent's conduct. In my opinion, the prejudicial effect of the evidence would not outweigh its probative value. Accordingly, evidence given by one complainant about events that occurred during the same visit to the respondent's office as the vaginal examination forming the subject of the count before the trial judge would be admissible as against that count. The trial judge erred in excluding this evidence.

For the same reasons, evidence given by one complainant about other appointments she had with the respondent was also properly admissible as against the counts before the trial judge in which the complainant was named.

I am also of the opinion that the evidence of one complainant as regards the severed counts should have been admitted with respect to the counts relating to each of the other complainants. While this evidence could be characterized as evidence of similar acts or events, the evidence was not tendered solely to show that the respondent was a person of bad character or of a disposition likely to commit the alleged offences. Rather, the evidence provided information highly relevant to understanding the context in which the alleged offences occurred and shed light on the nature of the respondent's relationship with his patients, particularly the standard of medical treatment he provided. The evidence provided a different perspective on the alleged assaults from that afforded by the medical evidence. The evidence going to the severed counts, if accepted by a jury, would also tend to show a distinct pattern of behaviour engaged in by the respondent. While the probative value of one complainant's evidence with respect to other complainants' allegations is somewhat less than that described above, and the prejudicial effect higher, I would nonetheless find that the probative value outweighs the prejudicial effect.

In summary, all the evidence going to the severed counts should have been admitted with respect to all the counts before the trial judge. This evidence was relevant to several important issues in the case, and its prejudicial effect would not outweigh its probative value.

(b) Evidence of the respondent's ranking medical officer

Hope J. ruled that the evidence of the respondent's ranking medical officer, Colonel MacKenzie, who was qualified as an expert in the field of the general practice of medicine, was inadmissible on the basis that it is irrelevant since it "only tells us what she advised the accused do to improve his practice at an army station some seven years ago".

I disagree with Hope J. that this evidence was irrelevant. The substance of the Colonel's evidence was that, in response to complaints made against the respondent by female patients while he was practising medicine in the military, she counselled the respondent on the proper way to conduct a medical practice. Among the suggestions she gave the respondent were that he should have a female medical personnel present in the office when he did any intimate examinations and that he should be careful about how he touched patients. He was also counselled to stop spending unduly long amounts of time with his patients, and not to invade patients' privacy by watching them undress and dress. In my opinion, this evidence was very relevant to the nature and quality of the acts which the respondent performed on the complainants and specifically to whether or not he was carrying out proper medical procedures. Further, one of the respondent's defences was that of good faith even if his practices were unorthodox. The Colonel's evidence would go to rebutting this defence since an inference could be drawn that the respondent had been made aware of problems with his practice in this respect. Hope J. was therefore in error to reject this evidence on the basis of irrelevance. The Colonel's testimony should have been admitted.

Hope J. also rejected the Colonel's evidence on the basis of a rule which he described as follows:

[Her evidence] may well be inadmissible under the rule that in the absence of any assent by the accused, either by word or conduct, to the correctness of the statements made in his presence, has no evidentiary value and should be disregarded.

Whether or not the respondent accepted or rejected the advice has no bearing on the admissibility of what the Colonel told the respondent. The rule on which Hope J. relied actually relates to the admissibility of hearsay statements, made in the presence of an accused and adopted by the accused as an admission. For example, the leading case in the area concerned the admissibility of a mother's testimony about accusations made against the accused, and in the presence of the accused, by her young son (R. v. Christie, [1914] A.C. 545 (H.L.)). The Colonel's testimony was not hearsay since it was not evidence, presented for the truth of the matter stated, of what someone else told her. Therefore, the rule to which Hope J. referred has no application in this case.

(c) Evidence of non-complainants

On a voir dire, the Crown called five women who had been patients of the respondent in the army as well as three women, also past patients, who had come forward with complaints about the accused after the preliminary inquiry as a result of media reports regarding the charges against the respondent. These women all testified that they felt the respondent had acted inappropriately towards them during medical examinations, including breast and vaginal examinations. Hope J. ruled that all of this evidence was inadmissible.

Given the errors already committed in the severance order, in the exclusion of other evidence, and in the motion for a directed verdict (which I will discuss below), I do not think it is necessary to discuss the admissibility of this evidence and will leave it to the discretion of the trial judge in the respondent's new trial. Recognizing that this evidence can correctly be characterized as similar fact evidence, it will be for the trial judge to consider whether or not the evidence falls within the decision of this Court in R. v. C. (M.H.), [1991] 1 S.C.R. 763.

Another factor for the trial judge to consider will be the availability of medical records regarding the witnesses from the army. The trial judge may decide that the lack of medical records for these witnesses' visits with the respondent renders the prejudicial effect of the evidence too high for it to be admissible.

Before leaving this evidence, I would note that Hope J. approached the decision regarding the admissibility of this evidence improperly when he assessed the witnesses' credibility and made determinations as to the weight he would give their evidence. The credibility of witnesses and weight to be given evidence are matters to be considered by the trier of fact when making a determination as to a verdict after the Crown and the defence have presented their cases and are not factors properly before a trial judge when ruling on the admissibility of evidence.

4. Did the trial judge err in granting the respondent's motion for a non-suit?

I am of the opinion that Hope J. erred in granting the respondent's motion for a non-suit at the close of the Crown's case. An application for a directed verdict or a non-suit is a matter of common law since there is no provision in the Code for such an application. This Court reviewed the test to be applied on such an application in R. v. Monteleone, [1987] 2 S.C.R. 154. In that case, McIntyre J. wrote for the Court that the test to be applied is derived from the decision in United States of America v. Shephard, [1977] 2 S.C.R. 1067. That test (at p. 161) is whether there is "any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction". McIntyre J. stated at p. 161:

It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.

The respondent elected to be tried without a jury, and therefore Hope J. was to fulfil the roles of both trial judge and trier of fact. It was in his role as trial judge, rather than as trier of fact, that he was to make a determination on the application for a non-suit. Hope J. was not to make determinations of weight and credibility prior to reaching a decision on the application for a non-suit.

The trial judge opened his ruling on the application by stating the correct test. He held:

... counsel for the accused applied for a directed verdict. That is, there is no case to answer on the basis that there has been no evidence to prove an essential ingredient or element of the offence, or, put another way, there is no evidence upon which a properly instructed jury acting reasonably might convict the accused. In deciding this application, I do not weigh the evidence.

Despite articulating the correct standard at the outset, Hope J. began to commit errors over the course of his ruling on the motion. First, he stated that in relation to consent, the Crown had "to prove beyond a reasonable doubt the procedures carried out were not appropriate or necessary for diagnostic or treatment purposes". There are two errors in this statement. First, proof beyond a reasonable doubt is not an element of the test for a directed verdict; the proper test is some evidence. Second, the Crown did not have to submit evidence proving that the procedures were not appropriate or necessary for diagnostic or treatment purposes. What the Crown had to lead was evidence that the conduct of the respondent had a sexual character in addition to whatever medical character that conduct might have had.

Hope J. next erred when he stated that the only evidence going to show whether or not there was a lack of consent was that of the two medical experts. The evidence of the medical experts produced opinions on the necessity of and the proper procedures for the types of medical examinations in question. However, the testimony of the complainants as to their feelings of specific distress and discomfort, as well as their testimony that they had never had similar experiences with other doctors, was evidence going to lack of consent. The complainants' testimony also afforded evidence that the respondent's practices varied from visit to visit, or from complainant to complainant, which might tend to throw doubt on the nature of the touching. Further, the investigating officer testified that the respondent had stated that he was "probably" sexually aroused by one of the complainants. The police officer also testified that when he was read part of one of the complainant's statement to police, the respondent stated something like, "I'm human, I need to stop here. ... That is going to happen every so often". This supported that complainant's testimony that the respondent apologized to her after the alleged sexual assault, saying something like, "... I'm sorry. I got carried away [involved]," and "... at least I know I'm human". Therefore, there was admissible evidence aside from that of the medical experts going to the issue of lack of consent.

Next, in my opinion, Hope J. broadly overstated the matter when he stated that both medical experts approved the respondent's procedures. The doctors' testimony was long and complex, and contained many statements from which a jury could have concluded that the respondent's conduct was inappropriate in terms of accepted medical practice. It was for the trier of fact to weigh the experts' evidence and reach a conclusion about the inferences to be drawn from that evidence. It was not the function of the trial judge on a motion for a non-suit to do so.

I note also that it was no barrier to the reception of the evidence that the experts testified on occasion to their own practices. There is no rule of evidence that experts may not testify as to their own practices (see, for example, the sections on expert opinion evidence in Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at pp. 533-74, and McWilliams, Canadian Criminal Evidence (3rd ed. 1993), at pp. 9-9 to 9-45). Deyong v. Weeks (1983), 43 A.R. 342 (C.A.), on which Hope J. relied for his ruling, was a civil case concerning expert opinion evidence regarding the proper standard of care to be expected of the profession in a suit for professional negligence and was therefore inapplicable. Finally, at the point when Hope J. was considering the motion for the non-suit, the expert evidence has already been admitted. It was improper for Hope J. to make statements on the admissibility of the expert evidence after the close of the Crown's case.

As I have stated, along with weighing the evidence and drawing inferences from some witnesses' testimony, Hope J. erroneously applied a "proof beyond a reasonable doubt" as opposed to a "some evidence" standard, an error which he made explicit by concluding, "the Crown has failed to prove beyond a reasonable doubt an essential ingredient in each of the counts". His errors were not cured by the statement at the end of his judgment that there was "no evidence upon which a properly instructed jury acting reasonably might convict the accused". Indeed, the fact that Hope J. left out a key part of the test, i.e., no evidence which if believed could form the basis for a conviction, indicates that he directed a verdict based on his disbelief of the evidence rather than on a neutral assessment.

Given these errors, the order for the non-suit cannot stand. Even under the trial judge's rulings on the admissibility of evidence, there was some evidence, both direct and circumstantial, which if believed by a properly instructed jury acting reasonably could have resulted in convictions. Under a correct approach to the admissibility of the evidence, there would have been all the more evidence to satisfy the standard.

V. Conclusion and Disposition

The pre-trial order for division and severance of the counts contained apparent flaws in jurisdiction and in substance, and in the circumstances should not have been applied by the trial judge. Further, the trial judge erred in his rulings on the admissibility of the evidence going to the severed counts, as well as the testimony of the respondent's ranking medical officer. Finally, the trial judge erred in granting the non-suit. Accordingly, the matter must go back for a new trial.

For the foregoing reasons, I would allow the appeal, set aside the order dividing and severing the counts, set aside the acquittals, and order a new trial.

The following are the reasons delivered by

McLachlin J. -- I have had the advantage of reading the reasons of Justice Iacobucci and agree with them. I wish only to add a comment on the question of whether this Court has jurisdiction to review the order for severance made by McDonald J. in chambers.

The problem, it is said, is that the order in question was not made by the trial judge as part of the trial. It was made prior to the trial by McDonald J. This Court, in R. v. Chabot, [1980] 2 S.C.R. 985, commented in obiter dicta at p. 1000 that the preferral of the indictment occurs and the trial begins when the accused is called upon to plead "before a trial court constituted to dispose of the case". In the case at bar, that occurred only sometime after McDonald J. had made his severance order. Had the judge who presided over the trial proper, Hope J., made the severance order, as happens elsewhere in some parts of Canada, it would have been appealable as part of the proceedings in the trial. The difficulty is that the order was made before trial by another judge before, it is argued, the indictment was preferred. Since no appeal was (or could be) taken from that order, it stands, by virtue of the rule against collateral attack: See Wilson v. The Queen, [1983] 2 S.C.R. 594. My colleague concludes that to meet this argument, it is necessary to entertain an exception to the rule against collateral attack so that substance may triumph over form.

It has been questioned, however, whether Chabot, which says the indictment is preferred and the trial begins when the court is ready to hear the case, applies in Alberta. It appears that in that province, it is standard practice to arraign an accused before the trial for purposes of taking pleas and pre-trial orders. It has been held that under this Alberta procedure, the indictment must be regarded as having been preferred before the trial begins. In R. v. Brackenbury and Pratt (1981), 61 C.C.C. (2d) 6 (Alta. Q.B.), Cavanagh J. considered the effect of Chabot on Alberta criminal procedure. He determined that Chabot is inapplicable in Alberta as it is based, first, upon practice in provinces which had previously used a system of grand juries and, second, primarily upon Ontario practice which is considerably different than that in Alberta.

After discussing the historical basis for the decision in Chabot, Cavanagh J. briefly outlines at p. 11 the practice in Ontario upon which the decision was based:

The Ontario practice seems to be that some time shortly after the preliminary hearing, an agent of the Attorney-General signs and files an indictment with the Clerk of the Superior Court. That is step No. 1. It appears that the cause then goes to an Assignment Court at which time a trial date is fixed. It appears that there is no reading of the indictment and indeed it is not clear that the accused must be present. That is step No. 2. Step No. 3 in Ontario appears to be the trial, which is commenced by a presentation of the indictment to the Court, acceptance of it, reading of it to the accused, and upon his pleading not guilty commencement of the trial itself with a Judge and jury.

He then discusses the practice in Alberta at pp. 11-12.

The Alberta practice is as follows: step No. 1 -- some time shortly after the completion of the preliminary inquiry, an agent of the Attorney-General signs and files an indictment with the Clerk of the Queen's Bench. Step No. 2 -- arraignment. At or after committal the accused is notified of the date he is to be arraigned in Court [sic] of Queen's Bench. . . . All accused to be arraigned appear on that day before a Judge of the Court of Queen's Bench. There is no jury. The indictment is presented to the presiding Judge who causes it to be read to the accused, and if the accused pleads not guilty, a trial date usually four to six months later is fixed. If the accused objects to the indictment then no plea is taken, the matter is adjourned to the next arraignment date on the understanding that the objection will be heard by a Judge and ruled upon before the next arraignments. If at arraignments the accused pleads guilty, the presiding Judge will sentence him.

It should be noted that if it is said that the indictment is not preferred against the accused at arraignments, then those who plead guilty and are sentenced would have to be convicted without an indictment ever having been preferred against them. [Emphasis added.]

Procedure in Alberta allows severance motions to be heard by judges in chambers prior to trial without seizing the judge of the matter: R. v. Deol, Gill and Randev (1979), 20 A.R. 595. This procedure, as well as others such as the taking of guilty pleas on arraignment, appears to be premised on the assumption that the indictment is preferred against the accused and trial proceedings begin upon arraignment, even though that may be months before a judge and jury are empanelled. If one applies Chabot literally to the Alberta practice, many problems arise, including the one we face in this appeal.

One way to meet the problem is to state, as Cavanagh J. did in Brackenbury and Pratt, supra, at p. 10, that the suggestion in Chabot that the indictment is not preferred until it is presented in the presence of the accused "before a court constituted to dispose of the case", does not apply to pre-trial arraignments in Alberta. On this view, the trial begins for purposes of plea and appeal at arraignment, even though a judge and jury ready to hear the case are not in place. The rule against collateral attack would present no difficulty in cases like this one, since the severance order is part of the trial proceedings. In my view, this makes sense. Chabot was predicated on the procedure in Ontario. It should not be applied literally to different procedures in different provinces when to do so results in anomaly and injustice.

Historically and linguistically, there is no reason why an indictment could not be preferred prior to the time when the court is fully constituted to dispose of the matter. As Cavanagh J. points out in Brackenbury and Pratt, at p. 10:

The English word "To prefer" is defined in the Oxford English Dictionary as follows: "To lay (a matter) before anyone formally for consideration, approval, or sanction; to bring forward, present, submit (a statement, bill, indictment, information, prayer, etc.)". In the French version the verb used is "presenter". This word incorporates a similar idea of placing something before a Court for consideration and action.... [T]he indictment is presented to the Court, the Court accepts or rejects it; if it is accepted, as is usually the case, it is read to the accused and he is called upon to plead to it. That, in my view, completes preferment.

The preferment was historically effected when a bill of indictment was presented to and returned by a grand jury. This typically occurred at the point when the judge and jury were in place, ready to hear the case, as described in Chabot. In provinces such as Alberta, where there have never been grand juries, it is done by the Attorney General or his or her agent: see Salhany, Canadian Criminal Procedure (1989), at p. 182. This has often occurred prior to the time when a judge and jury ready to hear the evidence were in place. In short, the time when the indictment is preferred and the trial proceedings begin is a matter of historical incident and practice, rather than one of principle.

Viewing the matter thus, I incline to the view that the order of McDonald J. occurred after preferment of the indictment and commencement of the trial proceedings and should be regarded as part of the trial. As such, it is appealable. In the alternative, if I were to proceed from the premise that the order of McDonald J. preceded the preferment of the indictment and was not part of the trial, I agree with my colleague that there should be an exception to the rule against collateral attack where the Alberta procedure outlined above has been followed. To do otherwise would be to insulate severance orders by Alberta courts against appeals which could be brought in other parts of the country where the judge who actually presides at the trial makes the order. That would be manifestly unjust.

Whatever approach is adopted, I agree that this Court has jurisdiction to entertain an appeal from the severance order of McDonald J.

I would dispose of the appeal as proposed by Iacobucci J.

Appeal allowed.

Solicitor for the appellant: The Attorney General for Alberta, Edmonton.

Solicitor for the respondent: Robert B. White, Edmonton.