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Supreme Court of Canada

Criminal law—Common assault charge—Non-appearance of informant—Refusal of Crown’s request for adjournment—Charge dismissed—New information sworn in identical terms to first information—Plea of autrefois acquit—Whether plea available in respect of summary conviction offence—Order of dismissal does not supplant right to raise plea—No requirement for trial “on the merits”—Criminal Code, R.S.C. 1970, c. C-34, ss. 734, 743(1), (2).

Accused was charged with common assault. He pleaded not guilty and the matter was adjourned for trial. At the trial the Crown applied for an adjournment as the complainant was not present. The application was refused. As the Crown called no evidence, the charge was dismissed and the accused was discharged.

A week later, the complainant swore a new information in terms identical to the first information. When the matter came on before another provincial court judge, the accused entered a plea of autrefois acquit and the charge was dismissed. In a Crown appeal by way of stated case, it was held that the plea was available in respect of a summary conviction offence and that it was applicable in the present case. The Crown took a further, unsuccessful appeal to the Appellate Division of the Supreme Court of Alberta and finally sought leave to appeal to this Court. Leave was granted on the following grounds: 1. That the Appellate Division erred in law in holding that an order of dismissal issued pursuant to s. 743 of the Criminal Code does not supplant the common law right to raise the special plea of autrefois acquit in a summary conviction court. 2. That the Appellate Division of the Supreme Court erred in law in holding that the information was dealt with on the merits.

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Held: The appeal should be dismissed.

As to the plea of autrefois acquit at common law, the formal status of the plea and the pleading and procedural technicalities of an earlier day should not stand in the way of an accused raising as a defence the fact that he has been previously acquitted of the offence with which he now stands charged. The proper procedure in summary conviction matters is not to raise the special plea of autrefois acquit, but simply to enter a general plea of not guilty embracing the concept of res judicata. Technically, such a general plea is not one of autrefois acquit but as stated in Flatman v. Light, [1946] 1 K.B. 414 at p. 419, “…that does not matter”. The court gives effect to the broad maxim, nemo debet bis vexari pro una et eadem causa. The charge has been dismissed by a court of competent jurisdiction and the accused shall not be charged again with the same matter.

The submission that the special pleas authorized in Part XVII (ss. 534-537) of the Criminal Code, headed “Procedure by Indictment”, are not available in respect of summary conviction offences, provision for which is contained in Part XXIV, failed. Something akin to the plea of autrefois acquit was available at common law to a defendant accused of an offence punishable by summary conviction. That being so, it would take language other than that found in ss. 534 to 537 to manifest an intent on the part of Parliament to take away such defence.

Under s. 734, the Code provides that where, as here, the defendant appears for the trial and the prosecutor does not appear, the summary conviction court may dismiss the information. Under s. 743, it is then open to the defendant to request the court to draw up an order of dismissal, a certified copy of which, without further proof, is a bar to any subsequent proceedings against him in respect of the same cause. However, the failure of the defendant in the present case to obtain a certificate was not fatal to his position. Section 743 is intended to supplement, and not to supplant, common law rights. It is in aid, rather than in derogation, of those rights. The certificate affords a mechanism, borrowed from English statute law of some antiquity, facilitating proof of dismissal of an information. The granting of a certificate is in the nature of an administrative act recording the judgment of the summary conviction court. It is not a judicial act.

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With respect to the second ground upon which leave to appeal was granted, should the accused avail himself of the certificate provided for in s. 743(1), subs. (2) bars any subsequent proceedings in respect of the same cause, without reference to the events giving rise to the dismissal. In principle, there is no reason why a different situation ought to prevail where the defendant has not obtained the certified copy. Nor, in principle, is it easy to distinguish between the situation where the Crown leads evidence which fails to make out a case for the defendant to answer and the situation where, as here, no evidence is led. So long as the case has proceeded to a verdict and a dismissal, that should be sufficient.

The term “on the merits” does nothing to further the test for the application of the bis vexari maxim. There is no basis, in the Code or in the common law, for any superadded requirement that there must be a trial “on the merits”. That phrase merely serves to emphasize the general requirement that the previous dismissal must have been made by a court of competent jurisdiction, whose proceedings were free from jurisdictional error and which rendered judgment on the charge.

R. v. Cooper (1971), 3 C.C.C. (2d) 261; R. v. Osborne (1975), 25 C.C.C. (2d) 405, not approved; R. v. Blair and Karashowsky (1975), 25 C.C.C. (2d) 47; R. v. Canadian Pacific Ltd. (1976), 32 C.C.C. (2d) 14; R. v. Ross (1977), 34 C.C.C. (2d) 483; R. v. Davis and Lakehead Bag Co. (1977), 37 C.R.N.S. 302; R. v. O’Connell (1977), 1 C.R. (3d) 1; R. v. Firth (1970), 12 C.R.N.S. 184; R. v. Kinch (1974), 20 C.C.C. (2d) 301; Weymss v. Hopkins (1875), 10 L.R.Q.B. 378; Flatman v. Light, [1946] 1 K.B. 414; R. v. Badiuk (1930), 53 C.C.C. 63; R. v. Hutchins (1880), 49 L.J.M.C. 64; Hancock v. Somes (1859), 28 L.J.M.C. 196; R. v. Myshrall (1971), 4 C.C.C. (2d) 156; R. v. Stokes (1917), 29 C.C.C. 144; R. v. Church Knowle (1837), 7 Ad. & E. 471; Tunnicliffe v. Tedd (1848), 5 C.B. 553; Vaughton v. Bradshaw (1860), 9 C.B. (N.S.) 103; Reed v. Nutt (1890), 24 Q.B.D. 669; R. v. Commodore Hotel (Windsor) Ltd. (1955), 111 C.C.C. 165; Burns v. Gan (1955), 112 C.C.C. 395; R. v. Hatherley (1971), 4 C.C.C. (2d) 242; Haynes v. Davis, [1915] 1 K.B. 332; R. v. Ecker and Fry (1929), 64 O.L.R. 1; Welch v. R., [1950] S.C.R. 412, referred to.

APPEAL by the Crown from a judgment of the Supreme Court of Alberta, Appellate Division[1], dismissing an appeal from a judgment of Laycraft J. in an appeal by way of stated case from a

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decision of Stevenson Prov. J. accepting a plea of autrefois acquit on a summary conviction offence and dismissing the information against the accused. Appeal dismissed.

Paul Chrumka, Q.C., and Miss Donna J. Martinson, for the appellant.

Marlin Moore, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—Two questions of considerable practical importance emerge in this appeal: Can an accused raise the special plea of autrefois acquit in a summary conviction court? If so, is the plea available when in the earlier proceeding the charge is dismissed following non‑appearance of the informant and refusal of an adjournment? Judicial authority and textbook opinion have been divided on both issues. Thus far, the respondent Riddle has succeeded in three Courts in Alberta.

Judicial History

Riddle was charged with common assault. He pleaded not guilty and the matter was adjourned for trial. On the appointed date, a provincial judge endorsed the information: “Accused here. I prefer not to hear this case. Trial October 22/75 at 10.00 a.m. by consent.”

On October 22, Riddle appeared with his counsel, and the proceedings were as follows:

Mr. Duncan:
(appearing for the Crown)

Sir, this matter is set for trial this morning. I believe the Crown witness is here on this. Is Mr. DeBruin in the courtroom? Mr. Cairn? Is Mr. DeBruin here today? Sir, it appears that the informant, the complainant in this case is not present. The Crown would make an application for an adjournment at this time.

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The Court:

What is the position of the Defence?

Mr. Daines:
(appearing for the accused)

Your Honour, we are here and prepared to proceed. We were prepared to proceed on the last occasion when this was set down for trial and at that time the case wasn’t reached before Judge Harvie. There were too many cases on. I wish to state I think it should be dismissed at this point because we are prepared to proceed.

The Court:

Is there any explanation why the witness is not present?

Mr. Duncan:

No information at all, sir, why he is not here.

The Court:

I would not grant an adjournment. I would ask the Crown to call evidence. Is the Crown in a position to do so?

Mr. Duncan:

No, sir, the Crown is calling no evidence.

The Court:

I would dismiss the charge and discharge the accused.

Mr. Daines:

Thank you, your honour.

A week later, the complainant swore a new information in terms identical to the first information. When the matter came on before another provincial court judge, Riddle entered a plea of autrefois acquit and the charge was dismissed. A Crown appeal by stated case was heard by Laycraft J., who in a carefully considered judgment held that the plea was available in respect of a summary conviction offence and that it was applicable in the present case. The Crown took a further, unsuccessful appeal to the Appellate Division of the Supreme Court of Alberta and finally sought leave to appeal to this Court. Leave was granted on the following grounds:

1. That the Appellate Division of the Supreme Court of Alberta erred in law in holding that an order of dismis-

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sal issued pursuant to Section 743 of the Criminal Code does not supplant the common law right to raise the special plea of autrefois acquit in a summary conviction court.

2. That the Appellate Division of the Supreme Court of Alberta erred in law in holding that the Information was dealt with on the merits.

The Plea of autrefois acquit at Common Law

One of the fundamental rules of the criminal law is expressed in the maxim, nemo debet bis vexari pro una et eadam causa, no person shall be placed in jeopardy twice for the same matter. By the special plea of autrefois acquit, founded upon that maxim, the accused says simply that he has been previously acquitted of the offence with which he is now charged; that offence is res judicata, i.e. it has passed into a matter adjudged. A second prosecution is, therefore, not open. In the case at bar, the respondent says that the assault alleged in the first information has become converted into res judicata or judgment.

The classic statement of the principle is found in Hawkins’ Pleas of the Crown (1726), Bk. II, c. 35, p. 368:

That a man shall not be brought into danger of his life for one and the same offence more than once. From whence it is generally taken, by all the Books, as an undoubted consequence, that where a man is once found not guilty on an indictment or appeal free from error, and well commenced before any court which hath jurisdiction of the cause, he may by the common law in all cases whatsoever plead such acquittal in bar of any subsequent indictment or appeal for the same crime.

In short, when a criminal charge has been once adjudicated by a court having jurisdiction, the adjudication is final and will be an answer to a later information founded on the same ground of complaint.

Through a series of cases, the Appellate Division of the Alberta Supreme Court has elaborated its

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views on the availability of autrefois acquit in summary conviction matters and the extent of that plea: R. v. Blair and Karashowsky[2]; R. v. Canadian Pacific Ltd.[3]; and this case. These decisions have effectively overturned the earlier decision of the Alberta Appeal Court in R. v. Cooper[4]. The views reflected in the more recent decisions appear to find support in British Columbia and Ontario in R. v. Ross[5] and R. v. Davis and Lakehead Bag Co.[6] at p. 311 (dicta of Wilson J.A.), as well as in Prince Edward Island, R. v. O’Connell[7]. The judgment of Morrow J., of the Northwest Territories Territorial Court, in R. v. Firth[8], and of Nicholson J. in the Prince Edward Island Supreme Court in R. v. Kinch[9] give further weight to the judgment here under appeal. A contrary view was held in R. v. Osborne[10].

Here the Crown appellant relies upon the cases of Cooper and Osborne. In Osborne, Limerick J.A. laid emphasis upon the historic availability of the plea of autrefois acquit in respect of indictable offences and not in summary conviction matters. Those involved in summary conviction courts “were not expected to have the nicety of legal perception to comprehend the legal concepts involved” in such pleas and, instead, more general powers of dismissal were confided to Justices of the Peace. Such powers were unnecessary in indictable matters, where the special pleas and the participation of the Attorney General assured greater control over the process. Limerick J.A. then finds further support for this distinction in the presence of ss. 535 to 537 in the “Procedure by Indictment” part of the Criminal Code and an absence of corresponding provisions in Part XXIV. In the result, he held that the intention of Parliament was “to replace those special pleas in summary conviction cases with the statutory relief

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afforded by s. 743 of Code.”

With respect, it would seem that those finding autrefois acquit not available in summary conviction cases at common law give to that term its narrow and specialized meaning. Professor Friedland in his book, Double Jeopardy (1969), describes the special pleas at pp. 113-4, noting the need for a formal record of the former judgment, carefully engrossed on parchment. Supported by the older case of Weymss v. Hopkins[11] and the more recent case of Flatman v. Light[12], Friedland continues:

The special pleas are not strictly appropriate for cases tried by courts of summary jurisdiction, but the same result is reached by giving effect to the maxim Nemo debet bis vexari pro una et eadem causa.

A technical approach was rejected by Lord Goddard in Flatman and such a narrow approach was dismissed by Blackburn J. in Weymss in these words:

I think the fact that the jurisdiction of the justices is created by statute makes no difference. Where the conviction is by a Court of competent jurisdiction, it matters not whether the conviction is by a summary proceeding before justices or by trial before a jury. (p. 38)

Further down the same page, Blackburn J. makes reference to the availability of a certificate “freeing [a person] from further proceedings, civil or criminal, for the same cause”, which goes further than the common law, but states explicitly that “in this case we must rely upon the common law”, and this is in relation to a summary conviction matter.

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In his perceptive article, “Res Judicata in the Criminal Law” (1961), 3 Melbourne U.L. Rev. 101, Professor Howard states at p.112:

At the present day the distinction between courts of summary jurisdiction and superior courts occasions no difficulty. Although it is pedantically true that an autrefois plea can be made only to an indictment, there never has been any real doubt that an equivalent objection can be set up in summary proceedings.

In Paley on Summary Convictions (9th ed., 1926) at p. 367, the “bis vexari” maxim is stated to be of general application to civil and criminal proceedings, to actions, orders, summary convictions and indictments. The text continues:

Consequently, at common law a former conviction or acquittal, whether on a criminal summary proceeding or an indictment, will be an answer to an information of a criminal nature before justices founded on the same facts.

Fullerton J.A. in R. v. Badiuk[13] seems to have been in no doubt that the plea of autrefois acquit was available at common law to a defendant proceeded against by way of summary conviction:

Counsel for the Crown contends that the plea of autrefois acquit is only available to a defendant in the case of a prosecution by indictment. Both the pleas of autrefois acquit and autrefois convict are founded upon the maxim “nemo debet bis vexari pro una et eadem causa” and at common law were always available to a defendant whether proceeded against by way of summary conviction or upon indictment. See Paley on Summary Convictions, 9th ed., p. 367; Stone’s Justices Manual, 1927, p. 180. (p. 66)

In Tremeear’s Annotated Criminal Code (6th ed., 1964) at p. 1531, the author, on the authority of Weymss v. Hopkins, states:

The general rule is that where a person has been convicted and punished for an offence by a court of competent jurisdiction, transit in rem judicatam, i.e. the conviction is a bar to all further proceedings for the same offence, and he must not be punished again for the same matter. This applies not only to indictable offences, but also to courts whose jurisdiction is entirely

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statutory: Weymss v. Hopkins (1875), L.R. 10 Q.B. 378 (C.A.).

and at p. 1532:

It is doubtful if the plea of autrefois is applicable to proceedings before justices, because of the special rules as to raising such a plea. It is probably more correct to say that what a court of summary jurisdiction must do is to give effect to the maxim nemo debet bis vexari pro una et eadem causa: Flatman v. Light, [1946] K.B. 414, per Lord Goddard, C.J.; cf. In re Deserted Wives’ Maintenance Act; In re Wilson, [1948] 1 W.W.R. 680 (B.C.); Burns v. Gan (1955), 112 C.C.C. 395 (Ont.).

Crankshaw’s Criminal Code of Canada (7th ed., 1959) p. 748, is to the same effect.

The formal status of the plea of autrefois acquit and the pleading and procedural technicalities of an earlier day should not stand in the way of an accused raising as a defence the fact that he has been previously acquitted of the offence with which he now stands charged. The proper procedure in summary conviction matters is not to raise the special plea of autrefois acquit, but simply to enter a general plea of not guilty embracing the concept of res judicata. Technically, such a general plea is not one of autrefois acquit but, as Lord Goddard was moved to say in Flatman v. Light, supra at p. 419, “…that does not matter”. The court gives effect to the broad maxim, nemo debet bis vexari pro una et eadem causa. The charge has been dismissed by a court of competent jurisdiction and the accused shall not be charged again with the same matter.

Criminal Code Provisions

The foregoing discussion has been concerned with the plea of autrefois acquit at common law. What concerns the Court in large measure in this appeal, however, are special statutory provisions found in the Criminal Code and their effect. I turn then to the Code.

The first reference should be to ss. 534 to 537 inclusive, coupled with s. 502. Section 535(1) provides specifically that an accused may plead the

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special plea of (a) autrefois acquit, (b) autrefois convict, and (c) pardon. The Code provides further that the pleas shall be disposed of by the judge without a jury before the accused is called upon to plead further. Sections 534 to 537 are found in Part XVII of the Code, headed “Procedure by Indictment”, and this has given rise to the argument that the special pleas are not available in respect of summary conviction offences, provision for which is contained in Part XXIV of the Code.

1 do not think this submission can prevail. Something akin to the plea of autrefois acquit was available at common law to a defendant accused of an offence punishable by summary conviction. That being so, it would take language other than that found in ss. 534 to 537 to manifest an intent on the part of Parliament to take away such defence. The Code does not contain all the criminal law and Part XXIV does not contain all of the law relating to summary convictions. No authority is needed for the proposition that common law rights are not to be held to be taken away or affected by statute unless such an intent is made manifest by clear language or necessary implication. In the absence of irreconcilable conflict, full effect should be given to both common law and statute. Section 7(3) of the Code expressly continues in force every rule and principle of the common law that renders any circumstance a defence to a charge, except in so far as altered by, or inconsistent with, the Code or any other act of Parliament. Thus, while the special plea of autrefois acquit is not mentioned in the summary conviction provisions of the Code, one would have to take an unduly technical and narrow interpretation of that objection and ignore the common law of Flatman and Weymss in order to accept the position urged by the Crown.

Part XXIV of the Code contains two sections, 734 and 743, which, for ease of reference, I will set out below:

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734. Where, in proceedings to which this Part applies, the defendant appears for the trial and the prosecutor, having had due notice does not appear, the summary conviction court may dismiss the information or may adjourn the trial to some other time upon such terms as it considers proper.

743. (1) Where the summary conviction court dismisses an information it may, if requested by the defendant, draw up an order of dismissal, and shall give to the defendant a certified copy of the order of dismissal.

(2) A copy of an order of dismissal, certified in accordance with subsection (1) is, without further proof, a bar to any subsequent proceedings against the defendant in respect of the same cause.

The Code is clear in providing that where, as here, the defendant appears for the trial and the prosecutor does not appear, the summary conviction court may dismiss the information. It is then open to the defendant to request the court to draw up an order of dismissal, a certified copy of which, without further proof, is a bar to any subsequent proceedings against him in respect of the same cause. No certificate was requested in the present case. It is the position of the Crown that failure to obtain a certificate is fatal to the position of the defendant. The Crown relies on the argument, reflected in the first question upon which leave to appeal was granted, that s. 743 supplants the common law right to raise the special plea of autrefois acquit in a summary conviction court. The effect of the argument is that a successful defendant must obtain a certificate of dismissal at the time of trial, failing which he has no protection from a second information. Nothing in the language of the Code leads to that conclusion. Section 743 is intended in my view to supplement, and not to supplant, common law rights. It is in aid, rather than in derogation, of those rights. The certificate affords a mechanism, borrowed from English statute law of some antiquity, facilitating proof of dismissal of an information.

Section 743 only deals with an order of dismissal and the effect of a certified copy of that order. It is, at the very least, implicit in that section that every dismissal for failure of the prosecutor to appear will be a bar to subsequent proceedings. As

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Friedland points out in his book, at p. 57, that section can hardly be a “complete code applicable to summary proceedings in place of the special pleas spelled out for indictable offences… because, for one reason, no provision is made for a previous conviction”. In that author’s view, with which I agree, all that s. 743 does “is to allow the accused to prove his defence by means of a certified copy of the order of dismissal—a procedure which would probably not be available to him at common law”. In R. v. Cooper, supra, the narrow, and in my opinion mistaken, view was taken that the pleas of autrefois acquit and autrefois convict were retained only in respect of a trial upon indictment and that, in summary conviction matters, the only method of raising the question of res judicata was by recourse to s. 743.

With respect to the failure of a defendant to obtain a certified copy of a certificate of dismissal, it is worth noting that in The Queen v. Hutchins[14], Lush J., speaking of a certificate of dismissal under s. 14 of 11 & 12 Vict:, c. 43, said, p. 65:

Now I am of opinion that the first decision was binding on the local board. It is true that the appellant had not obtained a written certificate of dismissal, but that is not of the essence. I take the written certificate to be an artificial but convenient mode of proving the dismissal provided by the Act, but not necessary to the validity of the decision pronounced. I should compare it to the convenient mode of proving a previous conviction by a certificate signed by the clerk of assize. Here the notebook of the magistrates was produced shewing the summons, the names of the parties, the nature of the complaint, the hearing, and the decision that the summons was dismissed on the ground that the street in question was a highway.

The policy of Parliament seems plain. An information may be dismissed on non-appearance of the prosecutor, and the defendant is then in a position to obtain a certificate securing him from further proceedings for the same offence. The granting of a certificate is in the nature of an administrative act recording the judgment of the summary con-

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viction court. It is not a judicial act, as Lord Campbell C.J. said in Hancock v. Somes[15], the headnote of which case reads:

The granting a certificate of dismissal, under section 27. of the 9 Geo. 4. c.31, is a ministerial, and not a judicial act; and a magistrate having heard a charge of assault and dismissed such charge, on either of the grounds stated in that section, is bound to grant a certificate, stating the fact of such dismissal.

Such certificate, though not applied for and not drawn up in the presence of the parties, is a good defence, under section 28, to an action for the assault.

Finally, on this point, I agree with Haddad J.A., of the Alberta Appellate Division, as to the “effectiveness and convenience afforded by a certificate of dismissal” and with his view that s. 743 imposes no limitation as to the time for drawing up the order of dismissal. With respect, I disagree with the opinion of Limerick J.A., expressed in R. v. Myshrall[16], that request for an order of dismissal must be made at trial as the magistrate, functus officio, cannot draw up or certify an order of dismissal thereafter. A rule limiting the protection of s. 743 to those who request at trial that an order of dismissal be drawn up would work a grave hardship on the many defendants who appear without counsel and are ignorant of s. 743 of the Code.

On the Merits

In some circumstances, it may be difficult to say whether the defendant has, indeed, been “bis vexatus”; for example, where an information has been withdrawn or dismissed on technical grounds, or, the Crown contends, as in the case at bar, where there was no disposition “on the merits”. It will be recalled that the second question upon which leave to appeal was granted raises the issue of whether the information was dealt with “on the merits”.

I am not at all certain of what is meant by the term “on the merits”, or indeed whether the ter-

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minology of “on the merits” furthers in any way our understanding of the effect of the dismissal of an information. Section 734 specifically empowers the summary conviction court to dismiss upon non-appearance of the prosecutor. Again we face Cooper and Osborne. Johnson J.A. in the former case held that “on the merits” necessarily meant after a “trial”, i.e. by the terms of s. 739, after the court “had heard the prosecutor, defendant and witnesses” and “after considering the matter”. Section 739 reads:

When the summary conviction court has heard the prosecutor, defendant and witnesses it shall, after considering the matter, convict the defendant or make an order against him or dismiss the information, as the case may be.

Section 736(3) reads:

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 provision of Part XV relating to preliminary inquiries.

Section 735(1) reads:

Where the prosecutor and defendant appear, the summary conviction court shall proceed to hold the trial.

Limerick J.A. in Osborne relied upon s. 736(3) and the language there of “proceed with the trial” after the taking of plea, so that:

the trial commences only after the plea has been taken and initiates with the calling of the first witness or the introduction of other evidence. The accused is not in jeopardy until all the evidence of the prosecution has been adduced, the defence has closed its case and the case is ready to go to the jury or Judge for decision. (p. 410)

Yet, one need only point to s. 735, prior to any reference to plea, where subs. (1) states: “Where the prosecutor and defendant appear, the summary conviction court shall proceed to hold the trial.”

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In Blair and Karashowsky, supra, Clement J.A. took a view differing from that expressed in Osborne. Mr. Justice Clement first registered a caveat about the pitfalls of the term “on the merits”, and then added at p. 53:

When the prisoner has pled, the formalities are completed, the case is before the Court, the prisoner is in jeopardy, and what arises thereafter is a matter of the conduct of the trial.

The words of Maule J. in Tunnicliffe v. Tedd[17] at p. 998 are then applicable:

In an ordinary court of oyer and terminer, if the defendant appears and pleads, he has an undoubted right to have the matter determined. When the complaint is ripe for hearing, and the defendant is ready to take his trial, if the prosecutor alleges nothing against him, or merely something that is unsubstantial, then the magistrates are bound to find the charge not proved, and to give a certificate accordingly.

Reference might also be made to R. v. Stokes[18], where effect was given to a certificate of dismissal obtained in a case where no evidence was given for the prosecution, and an adjournment was refused upon an erroneous view of the magistrate’s power to adjourn.

In R. v. Church Knowle[19], Coleridge J. held that quashing because respondents declined going into their case amounted to a decision on the merits. He said, at p. 551:

Quashing an order for want of form is different from quashing it merely because the merits are not gone into. If the order is discharged because the respondents do not choose to enter into their case, that is a quashing on the merits.

In R. v. Ross, supra, Bull J.A. at pp. 486-7 speaks to like effect:

But it is an entirely different situation where, after a trial has been started in the sense that an accused has pleaded and is before the Court, the charge is dismissed whether because there is no evidence adduced or only

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insufficient or inadequate evidence adduced by the Crown. I can see no real difference. The charge has not been put aside or taken away; it has been dismissed and the accused, in my view, is entitled to a certificate of acquittal.

Returning to Double Jeopardy, Friedland at p. 54 states his view unequivocally:

If a court exercises its discretion not to adjourn or to permit the charge to be withdrawn, the resulting dismissal or acquittal should bar further proceedings. A dismissal in such circumstances should not differ from a dismissal brought about by the prosecutor deliberately offering no evidence.

There follows (pp. 57-59) an illuminating discussion of the origin of the unfortunate phrase “on the merits”. In nineteenth century England, justices were given power to issue “certificates of dismissal” with respect to common assaults and batteries. These certificates served to release the accused “from all further or other Proceedings, Civil or Criminal, for the same Cause”, an extraordinary legislative provision. In a couple of cases, (Tunnicliffe v. Tedd, supra, and Vaughton v. Bradshaw[20]) the prosecutor chose to drop the criminal proceedings in favour of a civil suit, yet the certificate barred such a suit. Accordingly, the provision was amended in 1861 with the addition of the words ‘“upon the merits”. The full effect of the amendment was made clear in Reed v. Nutt[21], where Lord Coleridge C.J. said, p. 674, “…the later statute requires a more complete and substantial hearing of the charge than the earlier one did…”. Despite the absence of such language in the Code, the post-1861 cases were relied upon in imposing an “upon the merits” test in decisions like R. v. Commodore Hotel (Windsor) Ltd.[22], and Burns v. Gan[23], both of which are called in aid here by the Crown. The statutory language upon which Reed v. Nutt rested (24 & 25 Vict. c. 100, s. 44) read: “If the justices, upon the hearing of any such case of assault or battery upon the merits

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shall deem the offence not to be proved…”. (Emphasis added.)

In R. v. Hatherley[24] (leave to appeal to the Supreme Court of Canada refused, [1971] S.C.R. xi), the Ontario Court of Appeal held (p. 243):

On a subsequent charge in which the serial number of the saw in question was changed, a plea of autrefois acquit was accepted, and it is the acceptance of that plea which forms the subject-matter of this appeal. We think the plea was properly substantiated and that the appeal fails. We think the accused, once a plea had been entered, was in jeopardy and that if the Crown elected not then to call any evidence, the disposition by acquittal was a disposition on the merits of the case.

In the case of Haynes v. Davis[25], an information was preferred against the appellant for having sold milk which was deficient in natural fat. When the case came on for hearing the magistrate was informed that no certificate of analysis had been served with the summons in pursuance of the applicable legislation, whereupon he dismissed the summons. No evidence of the facts was given. A second summons was then taken out in respect of the same alleged offence. The Court held (Lush J. dissenting) that the appellant had been in peril of being convicted on the first summons and, therefore, entitled to plead autrefois acquit to the second summons. Ridley J. said, p. 335:

I think he was in peril and therefore that he was entitled to plead autrefois acquit. The magistrate had jurisdiction unless objection was taken at the proper time to the informality, and unless that objection was taken there was a possibility, and indeed a probability, that the magistrate would proceed to a decision and convict the appellant. The appellant was thus in peril. It is not quite correct to say, although it is rather an attractive phrase, that there must have been an acquittal upon the merits in order that there may be a good plea of autrefois acquit, In whatever way a person obtains an acquittal, whether it be by the verdict of a jury on the merits or by

[Page 398]

some ruling on a point of law without the case going to the jury, he is entitled to protection from further proceedings. Once there is an acquittal he cannot be tried again for the same offence.

Avory J. had this to say, at p. 337:

I agree, but I prefer to rest my judgment upon the one ground that the plea of res judicata or autrefois acquit depends for its validity upon this one question, whether the accused on the former occasion was in peril of being convicted of the same offence. If he was, the plea of autrefois acquit is good.

and

The question whether the one or the other is in peril is to be ascertained by inquiring whether the magistrate had jurisdiction to deal with the offence.

In my view, a criminal trial commences and an accused is normally in jeopardy from the moment issue is joined before a judge having jurisdiction and the prosecution is called upon to present its case in court. The person accused continues in jeopardy until final determination of the matter by rendering of the verdict.

Should the accused avail himself of the certificate provided for in s. 743(1), subs. (2) bars any subsequent proceedings in respect of the same cause, without reference to the events giving rise to the dismissal. In principle, there is no reason why a different situation ought to prevail where the defendant has not obtained the certified copy. Nor, in principle, is it easy to distinguish between the situation where the Crown leads evidence which fails to make out a case for the defendant to answer and the situation where, as here, no evidence is led. So long as the case has proceeded to a verdict and a dismissal, that should be sufficient. See R. v. Ecker and Fry[26], at p. 3, where Chief Justice Latchford said, in a passage adopted by Taschereau J. in Welch v. R.[27], at p. 417:

This Court was of opinion that “in jeopardy twice”—the bis vexari of the legal maxim—has not the meaning of subjection twice to a trial for the same offence except in cases where the first trial has been concluded by an adjudication or judgment declaring the accused acquit-

[Page 399]

ted or convicted. Not otherwise could the plea of autrefois acquit or autrefois convict prevail.

The term “on the merits” does nothing to further the test for the application of the bis vexari maxim. There is no basis, in the Code or in the common law, for any super-added requirement that there must be a trial “on the merits”. That phrase merely serves to emphasize the general requirement that the previous dismissal must have been made by a court of competent jurisdiction, whose proceedings were free from jurisdictional error and which rendered judgment on the charge.

Speaking generally, it is not readily apparent why the Crown should have the right to decline to adduce evidence in support of its charge and then assert the irrelevance of a dismissal consequent thereon, or why the Crown should be enabled to avoid the effect of refusal of an adjournment by declining to lead evidence and laying a fresh information following dismissal of the first charge. It is the intent of the Code that summary conviction matters be disposed of with despatch. No good purpose is served by introducing unwarranted complexities into what are, or should be, simple and straight-forward and expeditious procedures.

In the result, I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Paul S. Chrumka, Calgary.

Solicitors for the respondent: Woolliams, Korman, Moore & Wittman, Calgary.

 



[1] [1977] 5 W.W.R. 58.

[2] (1975), 25 C.C.C. (2d) 47.

[3] (1976), 32 C.C.C. (2d) 14.

[4] (1971), 3 C.C.C. (2d) 261.

[5] (1977), 34 C.C.C. (2d) 483 (B.C.C.A.)

[6] (1977), 37 C.R.N.S. 302 (Ont. C.A.)

[7] (1977), 1 C.R. (3d) 1 (P.E.I.S.C. in banco).

[8] (1970), 12 C.R.N.S. 184.

[9] (1974), 20 C.C.C. (2d) 301.

[10] (1975), 25 C.C.C. (2d) 405 (N.B.S.C.A.D.).

[11] (1875), 10 L.R. Q.B. 378.

[12] [1946], 1 K.B. 414 (C.C.A.).

[13] (1930), 53 C.C.C. 63 (Man. C.A.).

[14] (1880), 49 L.J.M.C. 64.

[15] (1859), 28 L.J.M.C. 196.

[16] (1971), 4 C.C.C. (2d) 156.

[17] (1848), 5 C.B. 553, 136 E.R. 995.

[18] (1917), 29 C.C.C. 144 (Man. K.B.).

[19] (1837), 7 Ad. & E. 471, 112 E.R. 547.

[20] (1860), 9 C.B. (N.S.) 103, 142 E.R. 40.

[21] (1890),24 Q.B.D. 669.

[22] (1955), 111 C.C.C. 165 (Ont. H.C.).

[23] (1955), 112 C.C.C. 395 (Ont. Mag. Ct.).

[24] (1971), 4 C.C.C. (2d) 242.

[25] [1915] 1 K.B. 332.

[26] (1929), 64 O.L.R. 1.

[27] [1950] S.C.R. 412.

 

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