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Supreme Court of Canada

Criminal law—R.C.M.P. officer acting as “prosecutor”—Indictable offence—New trial or acquittal—Criminal Code, ss. 2, 236(1), 426, 427, 482, 483, 484(2), 487, 720, 721, 722, 747.

The appellant was charged with “breaking and entering” contrary to the provisions of s. 306(1)(b) of the Criminal Code. The prosecutor who conducted the trial was a member of the R.C.M.P. At the close of the Crown’s case, defence counsel put forward a motion for dismissal on the basis that the Crown was not properly represented. The motion was eventually dismissed. The accused called no evidence and was found guilty. The Court of Appeal by a majority dismissed his appeal.

Held (Ritchie J. dissenting): The appeal is allowed.

Per Laskin C.J. and Martland, Estey and McIntyre JJ.: It was agreed that the police officer conducting the proceedings did not come within the definition of “prosecutor” in s. 2 of the Code. However, as, by reason of the inclusion in the definition in s. 720 of the word “agents” he did qualify under that section, the question to be decided is whether or not that definition, in Part XXIV of the Code, can be applied to the police officer who conducted the prosecution of this case.

The appellant being charged with an indictable offence, the procedure applicable to his trial was that provided in Part XVI of the Code. The fact the accused elected for trial by magistrate under s. 484(2) did not remove the proceedings from Part XVI. The fact that s. 487 directs the magistrate “acting under this part” to take evidence in accordance with Part XV cannot convert the proceedings into summary conviction proceedings and thereby change the nature of the offence, nor can it convert the magistrate into a summary conviction court under Part XXIV with a lesser jurisdiction than he is specifically given in Part XVI.

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The appellant seeks to have his conviction set aside and an acquittal entered. The ends of justice will be met here by directing a new trial, as there was no loss of jurisdiction on the part of the trial judge, as the accused suffered no prejudice and as he refrained from advancing his jurisdictional defence until after the Crown had closed its case.

Per Ritchie J., dissenting: The pre-Confederation practice in the magistrate’s courts of Newfoundland in summary trial of indictable offences was that police officers could act as prosecutors. This practice was so universally accepted as to be recognized as part of the law of Newfoundland and the terms of Union between Newfoundland and Canada provided for the continuation of laws in force at the time of Union. However, the Criminal Code of Canada came into force in Newfoundland in 1950 and introduced new definitions.

The applicable definition of prosecutor as found in the Code depends not upon the nature of the charge but on the nature of the proceedings and it follows that although the charge involves the commission of an indictable offence, the fact that the evidence was presented as part of the proceedings in a summary conviction court carries with it the meaning of prosecutor as defined in Part XXIV of the Code. In any event the appellant suffered no prejudice as a result of the procedure which was adopted.

[R. v. West (1915), 24 C.C.C. 249, affirmed 25 C.C.C. 145; R. v. Szoboszloi, [1970] 5 C.C.C. 366, referred to.]

APPEAL from a judgment of the Court of Appeal of Newfoundland[1], dismissing an appeal by the accused from conviction. Appeal allowed, new trial ordered, Ritchie J. dissenting.

Wayne Dymond and David C. Day, Q.C., for the appellant.

David F. Hurley and Robert B. Hyslop, for the respondent.

The judgment of Laskin C.J. and Martland, Estey and McIntyre JJ. was delivered by

MCINTYRE J.—I have read the reasons for judgment prepared by my brother Ritchie, but with deference I find myself unable to agree with

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his disposition of the matter. I am of the opinion that the Provincial Court judge and the majority of the Court of Appeal were incorrect in deciding in this matter that no error had been made by permitting the prosecution of an offence under s. 306(1)(b) of the Criminal Code by a police officer, not the informant and not a member of the bar of the Province of Newfoundland. My brother Ritchie has set out the relevant facts in the case and has described the historical background of the practice in the Province of Newfoundland in this respect. Accordingly, I need not deal further with these matters.

The Criminal Code provides two definitions of the term “prosecutor”. In section 2 “prosecutor” is defined for application “In this Act” in these terms:

“prosecutor” means the Attorney General or, where the Attorney General does not intervene, means the person who institutes proceedings to which this Act applies, and includes counsel acting on behalf of either of them;

In section 720 of Part XXIV of the Code for application “In this Part” the term is defined as:

“prosecutor” means an informant or the Attorney General or their respective counsel or agents;

Section 2 defines as well “counsel” in these terms:

“counsel” means a barrister or solicitor, in respect of the matters or things that barristers and solicitors, respectively, are authorized by the law of the province to do or perform in relation to legal proceedings;

It was agreed that the police officer conducting the proceedings in the case at bar did not come within the definition of s. 2 of the Code. By reason of the inclusion in the definition in s. 720 of the word “agents” he did qualify under that section. The question to be decided then is whether or not the definition in Part XXIV of the Code can be applied to the police officer who conducted the prosecution of this case.

There is little direct authority on this point but, in my opinion, an examination of the relevant procedural provisions of the Criminal Code leads

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to the conclusion that I have adopted. To begin with, the Criminal Code divides all crimes into two broad classifications, indictable offences and offences punishable on summary conviction. Some crimes may be either indictable or summary, e.g., offences under s. 236(1) of the Criminal Code. In such cases, the decision as to the method of trial lies in the discretion of the Crown, which may elect to proceed by indictment or by summary conviction: see R. v. West[2]. It must be borne in mind that this categorization of offences is made in the Criminal Code and where so categorized in the Code—or designated by the Crown in its choice of procedure in the case of offences which may be either indictable or triable on summary conviction—such characterization does not change by virtue of the election of mode of trial made by an accused.

Section 2 of the Criminal Code defines two courts for the trial of criminal offences: a “superior court of criminal jurisdiction” and a “court of criminal jurisdiction”. The superior court of criminal jurisdiction in the Province of Newfoundland is the Supreme Court of Newfoundland, and a “court of criminal jurisdiction” is defined in these terms:

(a) a court of general or quarter sessions of the peace, when presided over by a superior court judge or a county or district court judge, or in the cities of Montreal and Quebec, by a municipal judge of the city, as the case may be, or a judge of the sessions of the peace, and

(b) a magistrate or judge acting under Part XVI.

Jurisdiction in respect of indictable offences is given to the superior courts of criminal jurisdiction and courts of criminal jurisdiction, pursuant to s. 426 and s. 427 of the Criminal Code.

The appellant was charged with an indictable offence. Therefore the procedure applicable to his trial was that provided for in Part XVI of the Criminal Code. The offence is not one mentioned

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in s. 427 and is not one over which a magistrate has exclusive jurisdiction under s. 483. Accordingly, he was put to his election under s. 484(2) of the Code and could choose trial by magistrate without a jury; trial by judge without a jury; or a trial by a court composed of judge and jury. He chose the first form of trial, i.e. magistrate without a jury, and thus placed himself before a magistrate defined in Part XVI of the Code in these terms in s. 482:

“magistrate” means

(a) a person appointed under the law of a province, by whatever title he may be designated, who is specially authorized by the terms of his appointment to exercise the jurisdiction conferred upon a magistrate by this Part, but does not include two or more justices of the peace sitting together,

(b) with respect to the Yukon Territory, a judge of the Supreme Court or a magistrate or deputy magistrate appointed under an Ordinance of the Territory, and

(c) with respect to the Northwest Territories, a judge of the Supreme Court or a magistrate or deputy magistrate appointed under an Ordinance of the Territories.

It is evident from the foregoing that the Criminal Code has vested in magistrates authorized to act under Part XVI of the Code jurisdiction to try indictable offences in addition to those over which a magistrate has absolute jurisdiction when an accused so elects under the provisions of s. 484(2). It is clear as well that the magistrate so acting is acting under Part XVI of the Code and the offence remains an indictable offence, notwithstanding election of a more summary form of trial.

Offences triable on summary conviction fall within Part XXIV of the Code. “Proceedings” under Part XXIV find their definition is s. 720 in these terms:

“proceedings” means

(a) proceedings in respect of offences that are declared by an Act of the Parliament of Canada or an enactment made thereunder to be punishable on summary conviction, and

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(b) proceedings where a justice is authorized by an Act of the Parliament of Canada or an enactment made thereunder to make an order;

Part XXIV of the Code sets up a court for the trial of these matters called a Summary Conviction Court. It is defined in s. 720, as follows:

“summary conviction court” means a person who has jurisdiction in the territorial division where the subject-matter of the proceedings is alleged to have arisen and who

(a) is given jurisdiction over the proceedings by the enactment under which the proceedings are taken,

(b) is a justice or magistrate, where the enactment under which the proceedings are taken does not expressly give jurisdiction to any person or class of persons, or

(c) is a magistrate, where the enactment under which the proceedings are taken gives jurisdiction in respect thereof to two or more justices;

This is a court having a different and a much more limited jurisdiction than that of the superior court of criminal jurisdiction, or the court of criminal jurisdiction referred to in s. 2 of the Code in which indictable offences are tried. It was created to deal with lesser offences than those dealt with under Part XVI and the powers it exercises are limited by the provisions of Part XXIV. For example, s. 721 provides for a six-month limitation in the commencement of proceedings; s. 722 imposes a restriction on the powers of punishment, and to further illustrate the difference in proceedings under Part XXIV, different appeal procedures are provided in s. 747 et seq. from those pertaining to indictable offences tried under Part XVI.

I have been at some pains to illustrate the difference between proceedings under Part XVI, and those under Part XXIV, because the judgment of Morgan J.A., one of the majority in the Court of Appeal, seems to be predicated upon the assumption that the election for trial by magistrate under s. 484(2) removed the proceedings from Part XVI and placed them in a summary conviction court under Part XXIV. He said:

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Once an accused elects to be tried by a Magistrate under the provisions of Sec. 484, the Magistrate obtains jurisdiction to hear the matter. The accused is then tried in a “summary jurisdiction court” and the evidence taken in the same manner as if he were charged with an offence punishable on summary conviction. Though he is liable to a greater punishment if convicted.

He therefore considered that the definition of “prosecutor” in Part XXIV would apply and permit the police officer to prosecute. He found support for this view in the fact that s. 487 directs the Part XVI magistrate, conducting a trial of an indictable offence after election, to take evidence in accordance with Part XV, a similar direction to that given a magistrate acting under Part XXIV.

I am unable to agree with those conclusions. Jurisdiction to try indictable offences is specifically given to the superior courts of criminal jurisdiction and the courts of criminal jurisdiction. The magistrate mentioned in Part XVI is a different court from that mentioned in Part XXIV. The fact that s. 487 directs the magistrate “acting under this part” to take evidence in accordance with Part XV cannot convert the proceedings into summary conviction proceedings and thereby change the nature of the offence, nor can it convert the magistrate into a summary conviction court under Part XXIV with a lesser jurisdiction than he is specifically given in Part XVI. For the reasons which I have tried to outline, I am of the view that Part XVI proceedings and Part XXIV proceedings stand upon separate footings. Indictable offences are not triable under the provisions of Part XXIV save where the Criminal Code provides that the offence may be either indictable or punishable on summary conviction, and the Crown chooses to proceed by summary conviction. The offence charged here was simply indictable. It remains so notwithstanding the election and is not triable under Part XXIV of the Code. It follows then that the definition of “prosecutor” from that part of the Code can have no application in this case and, in

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my view, the Court of Appeal was in error in so applying it.

The appellant seeks to have his conviction set aside and an acquittal entered. It must be observed here that the appellant did not raise the point under discussion at the opening of the proceedings. He was represented by counsel and without objection the Crown put in its case. Then the appellant’s counsel moved to dismiss the charge on the basis that the Crown was not properly represented. When this motion was refused the appellant chose to call no evidence and the conviction followed.

In my view, while I am of the opinion that because of the failure of the Crown to comply with the provisions of the Code in the conduct of these proceedings the conviction cannot stand, I do not consider that an acquittal should be ordered. The ends of justice will be met in this case by directing a new trial. The appellant alleges a loss of jurisdiction on the part of the trial judge but I cannot accept such a proposition. The information was valid on its face and not attacked. The trial judge before whom the election was made had full jurisdiction to take the election and when the election was made he acquired jurisdiction to hear the trial. I cannot accept the argument that he lost jurisdiction and rendered any determination a nullity by what amounts to a procedural error in the conduct of the case. The appellant has suffered no prejudice here. He has not been compelled to disclose any defence he may wish to advance. I am averse to offering encouragement to those who, intending to assert what they consider a jurisdictional defence, refrain from advancing it until after the Crown has closed its case and lost any opportunity to correct its proceedings.

I would therefore allow the appeal, set aside the conviction, and direct a new trial before a magistrate under Part XVI of the Code, pursuant to the election made by the appellant.

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The following are the reasons delivered by

RITCHIE J. (dissenting)—This is an appeal from a judgment of the Court of Appeal of Newfoundland dismissing an appeal from a judgment rendered at trial by Magistrate Wicks whereby the appellant was convicted of “breaking and entering” contrary to the provisions of s. 306(1)(b) of the Criminal Code.

The appeal comes to this Court pursuant to the provisions of s. 618(1)(a) of the Criminal Code by reason of the fact that Mr. Justice Gushue delivered himself of lengthy dissenting reasons for judgment wherein he found that the learned magistrate presiding at trial erred in allowing a police officer to act as prosecutor and that the proceedings before him were accordingly vitiated, with the result that the appeal should be allowed and the conviction quashed.

The proceedings before the learned magistrate, except for his reasons for judgment, have not been reproduced in the case on appeal before this Court and we are accordingly of necessity restricted to the material contained in the “Statement of Fact” agreed to between the parties. The information which was laid by Constable Anderson of the R.C.M.P. is dated May 11, 1977 and the appellant elected trial “by magistrate without a jury” on June 21, 1977. The ensuing events are best described in the language employed in the Statement of Fact as follows:

After several postponements with the consent of the accused, his Counsel and the Prosecutor the matter was set for trial. An election was made and a plea of not guilty entered. The Prosecutor who conducted the trial was Corporal Steven McDonald, a member of the Clarenville detachment of the R.C.M.P. At the close of the Crown’s case, Defence Counsel put forward a motion for dismissal on the basis that the Crown was not properly represented. The Magistrate adjourned the hearing and set a date whereby the Prosecutor was allowed time to prepare an argument on the points involved in the motion for dismissal.

At a later date the Crown, represented by Mr. Hurley, from the Provincial Justice Department attended and argued the Crown’s position. After the Crown presented its argument, the Magistrate again postponed his decision and a date for his decision was set for October 26, 1977.

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On that date Mr. Hurley again appeared and judgment against the defence motion was given by the Magistrate in a lengthy judgment. After the motion was dismissed, the accused called no evidence and was found guilty. Sentence was imposed.

It is from the conviction that the appellant appeals this matter.

It should perhaps be pointed out that the record discloses the judgment of the learned provincial court to have been delivered on November 4, 1977 and that this is the date upon which the conviction and sentence were imposed. The grounds of appeal from this conviction to the Court of Appeal of Newfoundland read as follows:

1. That the Magistrate erred in law in finding that the Law Society Act R.S.N. 1977 Section 86, sub-paragraph (i) was intra vires the powers of the Province where it allows a member of the Royal Canadian Mounted Police to prosecute cases in the criminal code which are indictable offences.

2. That the Magistrate erred in law in finding the accused guilty of a breach of Section 306(1)(b) of the Criminal Code which was prosecuted by a member of the Royal Canadian Mounted Police, who was not the informant, and who was not Counsel as defined under the Criminal Code.

3. That the prosecution of an indictable offence by a member of the Royal Canadian Mounted Police violates Section 1(b) of the Canadian Bill of Rights R.S.C. 1970.

4. Such other grounds as the Court may allow and which Counsel may argue.

Mr. Justice Gushue’s dissent in the Court of Appeal was limited to the question of law raised by the second ground. As to the first ground, the learned dissenting judge made an express finding that he “would dismiss this ground of appeal”, and the third ground concerning the relevance of s. 1(b) of the Canadian Bill of Rights does not appear to have been argued before the Court of Appeal and was not argued in this Court.

Before embarking on a consideration of the second ground, I think it should be observed that the pre-Confederation practice in the magistrate’s courts of Newfoundland in summary trial of indictable offences was that police officers, even if

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they were not the informant in the case, could be heard to present the case for the Crown. This practice, as is pointed out by all judges of the Court of Appeal, stemmed from the difficulties of transportation to and from the outports of the Province and the consequent impracticability involved in having to attach qualified lawyers as Crown prosecutors in the various magistrate’s courts. It was thus recognized in Newfoundland before Confederation that prosecutions in summary conviction courts, whether they concerned summary conviction offences or indictable offences in respect of which the accused had elected trial by a magistrate, could legally be prosecuted by a police officer. This practice was so universally accepted as to be recognized as part of the law of Newfoundland.

With the conclusion of the Terms of Union between Newfoundland and Canada, provision was made for the continuation of laws in force at the time of Union. This is made plain from the language of Term 18(1) as set out in the Schedule to the British North America Act, 1949:

18. (1) Subject to these Terms, all laws in force in Newfoundland at or immediately prior to the date of Union shall continue therein as if the Union had not been made, subject nevertheless to be repealed, abolished, or altered by the Parliament of Canada or by the Legislature of the Province of Newfoundland according to the authority of the Parliament or of the Legislature under the British North America Acts, 1867 to 1946, and all orders, rules, and regulations made under any such laws shall likewise continue, subject to be revoked or amended by the body or person that made such orders, rules, or regulations or the body or person that has power to make such orders, rules, or regulations after the date of Union, according to their respective authority under the British North America Acts, 1867 to 1946.

I think it is to be accepted that the provisions of this Term were effective to perpetuate in Newfoundland the laws in force immediately prior to the date of Union subject however to such laws being amended or repealed in the manner specified. Amongst the relevant pre‑Confederation statutes is The Summary Jurisdiction Act, 1930, 1930 (Nfld.), c. 14 relating to the powers and procedures of magistrates in Newfoundland and con-

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taining the following section respecting summary trials of indictable offences:

107. Where an indictable offence is under the circumstances in this act mentioned authorized to be dealt with summarily,—

(1) The procedure shall, until the court assume the power to deal with such offence summarily, be the same in all respects as if the offence were to be dealt with throughout as an indictable offence, but when and so soon as the court assumes the power to deal with such offence summarily, the procedure shall be the same from and after that period as if the offence were an offence punishable on summary conviction and not on indictment, and the provisions of this Act relating to offences punishable on summary conviction shall apply accordingly; and…

There was no pre-Confederation statute in Newfoundland in any way curtailing the magistrate’s right to permit a police officer to appear as a prosecutor before him and this was the practice which had prevailed from the earliest times.

In 1950, however, the Criminal Code of Canada and the Canada Evidence Act came into force in Newfoundland as of the date of their proclamation. The Code provides for the repeal of The Summary Jurisdiction Act, 1930 and statutes amending it and introduces definitions and procedural provisions for the institution of prosecutions.

The contention of the appellant that the magistrate erred in permitting a member of the R.C.M.P. who was not an informant to prosecute this case is based upon acceptance of the argument that the meaning of “prosecutor” in the case of a trial when the accused is charged with having committed an indictable offence and has elected to have his trial take place before a magistrate, must be the meaning assigned to that word by s. 2 of the Criminal Code which provides:

“prosecutor” means the Attorney General or, where the Attorney General does not intervene, means the person who institutes proceedings to which this Act applies and includes counsel acting on behalf of either of them.

Under the provisions of this section it appears to me to be obvious that a prosecution for an indictable offence conducted in a superior court of

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criminal jurisdiction is required to be presented by the Attorney General or his “counsel”; other considerations however apply to the trial of an indictable offence by a magistrate in a summary conviction court when the accused has elected so to be tried. In such cases the procedure to be followed by the magistrate in the taking of evidence is that set forth in s. 736 of the Code which, under subs. (3), provides:

(3) Where the defendant pleads not guilty or states that he has cause to show why an order should not be made against him, as the case may be, the summary conviction court shall proceed with the trial, and shall take the evidence of witnesses for the prosecutor and the defendant in accordance with the provisions of Part XV relating to preliminary inquiries.

As the summary conviction provisions of the Code, i.e. Part XXIV, apply to the proceedings at the trial, it appears to me that the definition of “prosecutor” found in that Part, i.e. s. 720 subs. (1) is the applicable definition for the purposes of this case. That definition reads:

“prosecutor” means an informant or the Attorney General or their respective counsel or agents;…

The word “counsel” is defined in s. 2 as meaning a barrister or solicitor. It is therefore clear that the use of the word “agents” in s. 720 must contemplate persons other than qualified lawyers and in my opinion, having regard to all the circumstances, in the present case it includes police officers.

I share the view expressed by Mr. Justice Morgan that the applicable definition of “prosecutor” as found in the Code depends not upon the nature of the charge but on the nature of the proceedings and it follows that although the charge in the present case involves the commission of an indictable offence, the fact that the evidence was presented as part of the proceedings in a summary conviction court carries with it the meaning of “prosecutor” as defined in the summary conviction provisions of the Criminal Code (Part XXIV).

It will be seen that I am in general agreement with the reasons for judgment of Mr. Justice Morgan but I have not found it necessary to

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analyze the applicable provisions of the Criminal Code as did the members of the Court of Appeal because even if it could be said that there was error by the magistrate in permitting the constable to conduct the prosecution, I am satisfied that it was not an error affecting his jurisdiction or in any way rendering the trial wholly defective. I think this issue is settled in the reasons for judgment of Chief Justice Furlong where he says:

I have no doubt that if the trial was improperly conducted it might well affect the jurisdiction of the tribunal but this would have to be an impropriety so outrageous as to clearly condemn the tribunal of failing to discharge its judicial functions with justice.

In this present case there has been no attempt to strike at the jurisdiction of the tribunal either directly or indirectly. The only complaint which the Appellant makes is that he was prosecuted by a person who he says should not have prosecuted him, but that otherwise the trial was properly conducted.

I can only express my view quite clearly that even if there were the defects alleged by the Appellant it goes nowhere near to the position where I could say that the trial was wholly defective.

In the case of R. v. Szoboszloi[3], the Crown case was presented by a police constable and Mr. Justice Aylesworth of the Court of Appeal of Ontario had this to say about the objection taken in that case:

…it is said, no counsel appeared and the only representative with respect to the prosecution was a uniformed and, it is further said, an armed police constable. That may, as the Magistrate below observed, be the practice. It may in certain aspects thereof be objectionable. It may, although we by no means decide that, be even not within the wide definition of ‘agent’ as applicable to the relevant part of the Code; but be that as it may, in our view it decidedly does not have the effect of depriving the Magistrate of jurisdiction or of rendering the proceedings before him a nullity.

In that case an application for leave to appeal to this Court was dismissed.

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Having regard to all the above, I am of opinion that there was no error on the part of the trial magistrate in permitting an R.C.M.P. officer to conduct the case for the Crown and in any event the appellant suffered no prejudice as a result of the procedure which was adopted.

For all these reasons I would dismiss this appeal.

Appeal allowed, RITCHIE J. dissenting.

Solicitors for the appellant: Mills & Dymond, Clarenville; Lewis, Day, Cook & Sheppard, St. John’s.

Solicitor for the respondent: The Attorney General of Newfoundland, St. Johns.

 



[1] (1978), 16 Nfld. & P.E.I.R. 108; (1978), 42 A.P.R. 108; (1978), 45 C.C.C. (2d) 104.

[2] (1915), 24 C.C.C. 249, affirmed 25 C.C.C. 145.

[3] [1970] 5 C.C.C. 366.

 

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