Supreme Court Judgments

Supreme Court of Canada

Doyle v. R., [1977] 1 S.C.R. 597

Date: 1976-06-29

John C. Doyle Appellant;

and

Her Majesty The Queen Respondent.

1976: March 1; 1976: June 29.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF NEWFOUNDLAND ON APPEAL

Criminal law—Indictable offence—Loss of jurisdiction—Accused on successive appearances before magistrate not put to his election—Adjournment by magistrate for more than eight days—Loss of jurisdiction over “the person”—Loss of jurisdiction over “the offence” or over “the information”—Criminal Code, R.S.C. 1970, c. C-34, ss. 463, 464, 465, 483, 484, 501.

An information was laid on December 7, 1973, charging appellant and another with two counts of fraud contrary to s. 338(1) of the Criminal Code and two counts of breach of trust contrary to s. 111 of the Code. Appellant was arrested that same day in Montreal and the following day, at a court appearance in St. Johns, was conditionally released from custody subject inter alia to his remaining in Newfoundland and surrendering his passport, on the understanding that the matter would be proceeded with on January 30th. On that date, however, the Crown requested an adjournment until April 1, to which appellant only consented upon the Crown undertaking that the condition governing his release be varied by permitting him to leave Newfoundland and return to Montreal. On April 1, the Crown requested a further adjournment until August 1, which adjournment though strenuously opposed by appellant was granted by the Magistrate. Appellant had not until April 1 had the information read to him and was not, even on that date, put to his election as the Criminal Code requires. Appellant applied for a writ of mandamus declaring void the recognizance and ordering the return of the cash deposit and the release of the sureties. The application was refused and appellant’s further appeal was dismissed.

Held: The appeal should be allowed.

The powers and function of a magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must be found to have been thereby

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conferred either expressly or by necessary implication. The careful and detailed procedural directions in the Code are exhaustive and the powers of a magistrate or justice acting thereunder are entirely statutory. Both s. 464 which deals with the situation where “the justice” before whom the accused is brought is not “a magistrate” and s. 484 provide that the justice or magistrate shall, after the information has been read to the accused, put him to his election. The failure to put the appellant to his election as required by the Code constituted an error which involved loss of jurisdiction over him.

Further s. 501 which provides that a magistrate may from time to time adjourn the trial has no application in the case of a person charged with an indictable offence over which the magistrate does not have absolute jurisdiction unless the accused elects to be tried before a magistrate.

As here there was not only no trial but no election and as there are no provisions in the Criminal Code which authorize a magistrate or justice to adjourn a case under such circumstances for more than eight days without the consent of the accused, jurisdiction over the person of the appellant was lost and the recognizance entered into by him thereby voided.

Trenholm v. Attorney General of Ontario, [1940] S.C.R. 301 followed; R. v. Heminger and Hornigold, [1969] 3 C.C.C. 201 distinguished; R. v. Keating (1973), 11 C.C.C. (2d) 133 disapproved; R. v. Dupras Ltd. (1924), 42 Que. K.B. 199; St. Pierre v. The Queen (1965), 47 C.R. 213; R. v. Peters (1973), 24 C.R.N.S. 118, 65 W.W.R. 1; Re Kuhn and The Queen (1974), 19 C.C.C. (2d) 556; R. v. Light (1968), 5 C.R.N.S. 118; R. v. Born (1971), 6 C.C.C. 70; R. v. Mack, [1976] 1 W.W.R. 657 referred to.

APPEAL from a judgment of the Supreme Court of Newfoundland on appeal[1] dismissing an appeal from Furlong C.J.[2] dismissing an application for mandamus. Appeal allowed.

Charles E. Flam, Irwin I. Liebman, and Gerald F. O’Brien, for the appellant.

J.P. Byrne, for the respondent.

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The judgment of the Court was delivered by

RITCHIE J.—The circumstances giving rise to this appeal can best be described in chronological sequence as follows:

(1) On December 7, 1973, an information was laid before Hugh O’Neill, a magistrate in the Province of Newfoundland, charging the appellant, whose address was described as Montreal, P.Q., and Panama, together with one Oliver Vardy of Belair Bluffs, Florida, U.S.A., with two counts of fraud contrary to s. 338(1) of the Criminal Code and two counts of breach of trust contrary to s. 111 thereof. On the same day the informant, a police officer, arrested the appellant at his Montreal residence under the authority of a warrant issued pursuant to the said information.

(2) On December 8, 1973, the appellant, having been brought to Newfoundland in the informant’s custody, appeared before Magistrate O’Neill at which time an application was forthwith made for bail to be fixed and after argument the appellant was remanded in custody until December 11th.

(3) On December 11, 1973, Magistrate O’Neill made an order fixing the conditions of the appellant’s interim release as follows:

(i) cash bail of $25,000 with two sufficient sureties of $25,000 each and the appellant’s own recognizance in the amount of $50,000;

(ii) that appellant remain in the Province of Newfoundland reporting daily to the R.C.M.P., and that he surrender his passport;

(iii) that he not communicate with any witnesses involved in this case.

These conditions were fixed on the understanding that the matter would be proceeded with before the Magistrate on January 30th.

(4) On January 30, 1974, the appellant appeared before Magistrate O’Neill prepared to proceed with the case but the Crown moved for an adjournment until April 1st. This motion was initially opposed on behalf of the appellant and only agreed to upon the Crown undertaking that the conditions governing his interim release be varied

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by permitting him to leave Newfoundland and proceed to Montreal.

(5) On April 1, 1974, the appellant appeared before another magistrate named Clement Scott, and on this occasion for the first time the charges were read to him in open court whereafter the Crown at once applied for a further adjournment until August 1st.

This application was strenuously opposed on behalf of the appellant but counsel for the Crown contended that such an adjournment was necessary by reason of the difficulty encountered in obtaining an order in the United States for the extradition of the co-accused Vardy without whose presence in Newfoundland it was said that the Crown feels that it cannot proceed with a preliminary enquiry or trial in the absence of one of the accused.

In refusing to consent to the adjournment, appellant’s counsel pointed out that he had already consented to a two months’ postponement of the hearing, that his client was charged on December 7, 1973, at which time the informant swore that there were reasonable and “probable grounds to believe him guilty” and that as no steps had been taken to proceed with his case for almost four months, the charges should be dismissed for want of prosecution. The adjournment was however granted until August 1st, and it is the question raised by the appellant as to the magistrate’s jurisdiction to grant such an adjournment which gives rise to this appeal. It is to be noted that between December 8, 1973 when the appellant was arrested, and April 1, 1974, when he appeared before Magistrate Clement Scott, no steps whatever appear to have been taken by the Crown to comply with the requirements of Part XV or XVI of the Criminal Code. The information was not read to him until April 1st and even at that time he was not “put to his election” as the Code requires.

(6) On May 6, 1974, application having been made on behalf of the appellant, an order was

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granted by the Chief Justice of Newfoundland directing

…that John Christopher Doyle have leave to issue a Notice of Motion of this Court directed to Magistrate Hugh O’Neill to appear before me in person or by counsel on the 13th day of May, A.D., 1974… to show cause why a Writ of Mandamus should not be issued declaring void the Recognizance entered into by Applicant on December 11, 1973 and ordering that Respondent return to Applicant the sum of $25,000 deposited by him as a condition of his Judicial Interim Release and ordering that Applicant and his sureties be fully released, discharged and exonerated with respect to said Recognizance.

The appellant’s application for the order so granted was based on the contention that Magistrate Scott had acted in excess of his jurisdiction on April 1st when he granted an adjournment of the proceedings against the appellant for a period of four months without the appellant’s consent and indeed, in the teeth of strenuous opposition asserted on his behalf, but when the matter came on to be heard before Furlong C.J., Nfl’d., he declined to grant the mandamus holding that the magistrate had an inherent jurisdiction to grant such an adjournment. Mifflin and Noel JJ., composing the Supreme Court of Newfoundland on Appeal, dismissed the appeal from Chief Justice Furlong’s judgment and declined to grant the mandamus but on other grounds which will hereafter be considered. It is from this latter judgment that the appellant now appeals to this Court.

It is contended on behalf of the appellant that when an accused person “is taken before a justice” within a period of twenty-four hours after his arrest as required by s. 454(1) of the Criminal Code, the only power vested in such justice or magistrate to adjourn the proceedings without the consent of the accused, is that found in s. 465(1) which provides that:

465. (1) A justice acting under this Part may

(b) adjourn the inquiry from time to time and change the place of hearing, where it appears to be desirable to do so by reason of the absence of a witness, the inability of a witness who is ill to attend at the place where the justice usually sits, or for any other suffi-

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cient reason, but no such adjournment shall be for more than eight clear days unless the accused

(i) is not in custody and he and the prosecutor consent to the proposed adjournment,…

In the course of his reasons for judgment, the learned Chief Justice of Newfoundland held that this section had no application to the circumstances because no “inquiry” had commenced when the adjournment was granted on April 1st, and speaking of the powers of the magistrate he said:

In the exercise of his judicial discretion he has the power, in my opinion to grant such necessary adjournments as either the prosecution or the defence can establish are necessary to the proper and just determination of the charges against the accused.

Whatever inherent powers may be possessed by a superior court judge in controlling the process of his own Court, it is my opinion that the powers and functions of a magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must be found to have been thereby conferred either expressly or by necessary implication.

I am not unaware of the fact that Mr. Justice Kelly of the Court of Appeal for Ontario in R. v. Keating[3], expressed the opinion that the Criminal Code

…does not restrict the inherent jurisdiction the Court possesses to control its own process and proceedings in any manner not contrary to the provisions of the Criminal Code or any other statute;…

I am, however, unable to subscribe to this opinion as I take the view that the careful and detailed procedural directions contained in the Code are of necessity exhaustive, and as I have indicated, I regard the powers of a magistrate or justice acting under the Criminal Code as entirely statutory.

I am therefore unable to subscribe to the reasoning employed by the Chief Justice of Newfoundland, the effect of which would, as I understand it, be to ascribe to “a justice” a discretion to grant an

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adjournment in this case which would only result in a delay of approximately eight months after arrest without the appellant being given an opportunity to elect the forum for his trial.

On appeal the two judges who participated both agreed with the Chief Justice that s. 465(1) of the Criminal Code did not apply to the circumstances, but they reached this conclusion on the assumption that the offences here charged were not within Part XV of the Code but were governed by Part XVI and although no trial of any kind had commenced, they took the view that the power of the magistrate to grant the adjournment was to be found in s. 501 which provides:

501. A judge or magistrate acting under this Part may from time to time adjourn a trial until it is finally terminated.

In order to deal with this contention it appears to me to be necessary to consider the relevant provisions of Part XV and Part XVI. I have already referred to s. 454 which occurs in Part XIV of the Code and which requires the arresting officer to cause a person arrested to be taken before a justice within a period of twenty-four hours, and it appears to me that the next provision to be found in the Code as to the disposition of such an arrested person is to be found in s. 463 which occurs in Part XV of the Code and which reads:

463. Where an accused who is charged with an indictable offence is before a justice, the justice shall, in accordance with this Part, inquire into that charge and any other charge against that person. [The italics are my own].

It will be noted that such an inquiry is mandatory under the terms of that section and in my view the section applies to any accused “taken before a magistrate” “who is charged with an indictable offence”.

In the present case, Magistrate O’Neill presumably inquired into the charges to the extent of satisfying himself that he had jurisdiction to grant bail (s. 457 of the Criminal Code) and fix the terms of the appellant’s interim release, but there is no suggestion that he or any other magistrate made any further inquiry, at least until the charges were first read to the appellant on April 1st.

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The succeeding sections of Part XV of the Code are designed to provide for a situation where “the justice” before whom the accused is brought is not “a magistrate” as defined by s. 482 of the Code and they provide for the steps which are to be taken by way of preliminary inquiry to determine whether there are grounds for committing the accused for trial.

Before considering the effect of the provisions of Parts XV and XVI, I think it desirable first to observe that where “a justice” is referred to in the Criminal Code it means “a justice of the peace or a magistrate” (s. 2) and that the offences here charged are not ones “over which a magistrate has absolute jurisdiction under s. 483”, and neither is “an offence that is mentioned under s. 427”. Having said this, I think it convenient to reproduce the relevant provisions of the two Parts of the Code side by side:

PART XV	PART XVI
464. (1) Where an accused is before a justice other than a magistrate as defined in Part XVI charged with an offence over which a magistrate, under that Part, has absolute jurisdiction, the justice shall remand the accused to appear before a magistrate having absolute jurisdiction over that offence in the territorial division in which the offence is alleged to have been committed.	484. (1) Where an accused is charged in an information with an indictable offence other than an offence that is mentioned in section 427, and the offence is not one over which a magistrate has absolute jurisdiction under section 483, a magistrate may try the accused if the accused elects to be tried by a magistrate.
(2) Where an accused is before a justice other than a magistrate as defined in Part XVI charged with an offence other than an offence that is mentioned in section 427, and the offence is not one over which a magistrate has absolute jurisdiction under section 483, the justice shall, after the information has been read to the accused, put him to his election in the following words:	(2) An accused to whom this section applies shall, after the information has been read to him, be put to his election in the following words:
You have the option to elect to be tried by a magistrate without a jury; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. How do you elect to be tried?	You have the option to elect to be tried by a magistrate without a jury; or you may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. How do you elect?

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(3) Where an accused elects to be tried by a magistrate, the justice shall endorse on the information a statement that the accused has so elected and shall remand the accused to appear and plead to the charge before a magistrate having jurisdiction over that offence in the territorial division in which the offence is alleged to have been committed.	(3) Where an accused does not elect to be tried by a magistrate, the magistrate shall hold a preliminary inquiry in accordance with Part XV, and if the accused is committed for trial or, in the case of a corporation is ordered to stand trial, the magistrate shall (a) endorse on the information a statement showing the nature of the election or that the accused did not elect, and (b) state in the warrant of committal, if any, that the accused (i) elected to be tried by a judge without a jury, (ii) elected to be tried by a court composed of a judge and jury, or (iii) did not elect.
(4) Where an accused does not elect to be tried by a magistrate, the justice shall hold a preliminary inquiry into the charge and if the accused is committed for trial or, where the accused is a corporation, is ordered to stand trial, the justice shall (a) endorse on the information a statement showing the nature of the election or that the accused did not elect, and (b) state in the warrant of committal, if any, that the accused (i) elected to be tried by a judge without a jury, (ii) elected to be tried by a court composed of a judge and jury, or (iii) did not elect.	(4) Where an accused elects to be tried by a magistrate, the magistrate shall (a) endorse on the information a record of the election and (b) call upon the accused to plead to the charge, and if the accused does not plead guilty the magistrate shall proceed with the trial or fix a time for the trial.
465. (1) A justice acting under this Part may … (b) adjourn the inquiry from time to time and change the place of hearing, where it appears to be desirable to do so by reason of the absence of a witness, the inability of a witness who is ill to attend at the place where the justice usually sits, or for any other sufficient reason, but no such adjournment shall be for more than eight clear days unless the accused (i) is not in custody and he and the prosecutor consent to the proposed adjournment,…	501. A judge or magistrate acting under this Part may from time to time adjourn a trial until it is finally terminated.

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These are the rules governing the procedure to be followed when an accused person is first “taken before a justice”. The material difference between the two Parts is that Part XV is necessarily concerned with procedure preliminary to trial because it contemplates a “justice” who has no power of trial even with the consent of the accused, whereas Part XVI is concerned with the powers of a magistrate as therein defined and deals both with preliminary procedure and procedure at trial when the accused has elected trial before a magistrate, but in both cases the first inquiry must be into the charge itself (s. 463) to determine whether or not it is one over which a magistrate has absolute jurisdiction and ensure that it is not one of those offences mentioned in s. 427. This first step is essential whether the subsequent procedures are conducted before a Part XV “justice” or a Part XVI “magistrate” and in my opinion in both cases it is a part of the inquiry contemplated in s. 465(1)(b) which cannot be adjourned for more than eight days without the consent of the accused.

It will be seen that under both Parts XV and XVI, a justice or magistrate, after the information has been read to the accused shall put him to his election. The form of election is identical under both Parts and as I have indicated, the granting of the adjournment until the 1st of August meant that eight months would have elapsed without these sections of the Code being complied with.

Both judges of the Court of Appeal expressed the view that s. 484(2) did not require the magistrate or justice to put an accused to his election immediately after the information was read to him. Mr. Justice Noel expressed himself as follows:

Section 484 (2) does not impose upon a Magistrate the duty of putting an accused to his election as soon as the information has been read to him.

484. (2) An accused to whom this section applies shall, after the information has been read to him, be put to his election in the following words:

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It is clear that the words of section 484(2) do not require an interpretation which would prevent proceedings being adjourned after the information has been read and before an accused is put to his election, indeed, such an adjournment is often desirable, for example, to allow the accused an opportunity to retain counsel to advise him as to his election.

In my view the whole structure of the procedural provisions of the Code which deal with the treatment of persons immediately after they have been arrested is designed to provide a speedy disposition of their cases. As I have said, the arresting officer is required to bring such a person before a magistrate within twenty-four hours and the duties with which a magistrate is thereafter seized are all phrased in mandatory language so that I am unable to agree with the view expressed in the Supreme Court of Newfoundland on Appeal which culminates in the present case in authorization of a delay of eight months between the arrest and the opportunity to elect for trial. In my view the failure of both magistrates to put the accused to his election as required by the Code was a clear error which of itself involved the loss of jurisdiction over the accused.

In finding that the magistrate had the necessary jurisdiction and authority to grant the four months’ adjournment which he did, Mr. Justice Noel, in dismissing this appeal, relied on the judgment of Freedman J.A. (as he then was) in R. v. Heminger and Hornigold[4] where he said of s. 483 (now 501) of the Code:

We find it unrealistic to think that when the framers of the Criminal Code were dealing with Part XVI they provided for a right to adjourn a trial already in progress, but required resort to an enactment in another part of the Code for adjournment of the commencement of the trial. In our view the language of Section 483 is sufficiently broad and comprehensive to make it unnecessary to resort to such an awkward and roundabout approach as counsel has suggested. The section empowers a Judge or Magistrate to adjourn either the commencement or the continuance of a trial.

It is this reasoning which dominates the judgments in the Court of Appeal, but I am satisfied

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that it has no application to the present case. The remarks of the present Chief Justice of Manitoba in the Heminger case are directed towards the trial of an offence over which a Part XVI magistrate has absolute jurisdiction without the consent of the accused and when an accused person appears before him, such a magistrate may, in accordance with the authority vested in him under s. 501, adjourn the proceedings from time to time. These considerations, however, have no application in the case of a person charged with an indictable offence over which a Part XVI magistrate does not have absolute jurisdiction unless the accused has elected to be tried before such a magistrate.

In the present case there was not only no trial but no election as to the forum in which the trial was to take place and in my view there are no provisions in the Criminal Code which authorize a justice or a magistrate to adjourn a case under such circumstances for more than eight days without the consent of the accused. I am accordingly of the opinion that Magistrate Scott exceeded his power when he adjourned the case on April 1st and that jurisdiction over the person of the accused was accordingly lost and that the recognizance entered into by the appellant before Magistrate O’Neill on December 11, 1973, is thereby voided.

This latter finding is sufficient to dispose of the application giving rise to this appeal, but it was also contended before this Court that the error to which I have referred involved not only loss of jurisdiction “over the person” but also “over the offence”.

Somewhat different conclusions have been reached in varying provincial courts as to the effect of such an error on the jurisdiction of a magistrate. These differences have been occasioned in large degree by differing factual situations, but in my opinion the principle governing the present case is to be derived from the judgment of this Court in Trenholm v. Attorney General of Ontario[5], where the date to which the appellant had been remanded had passed with nothing having been done and it was held that the informa-

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tion lapsed and no further process could be taken pursuant to it. Kerwin J., speaking for himself and Chief Justice Duff observed at p. 308, that: “…after the expiry of the remand there was no criminal cause or charge in existence…” and Davis J., in a separate opinion said, at p. 313: “But when a remand has expired without any further hearing or appearance the justice becomes functus…”. In the present case if the magistrate had granted an adjournment for eight days and then done nothing, the situation would have been exactly within the Trenholm decision and I cannot see that the affirmative violation of the Code by adjournment for more than eight days which occurred here affords any distinction in principle from the acquiescence in allowing an eight-day adjournment to expire which is what occurred in Trenholm.

In conformity with the Trenholm decision, the courts of Quebec appear to have treated an error such as the one here found as going to the question of jurisdiction “over the offence”, (see R. v. Dupras Ltd.[6], and St. Pierre v. The Queen[7]), and the courts of British Columbia appear to adopt the same approach, (see R. v. Peters[8], where Maclean J., speaking for the Court of Appeal, had occasion to say:

“When Davis J. held in the Trenholm case that the magistrate was functus I take it to mean he was functus with regard to any proceeding sought to be taken under the original information”.)

The judgment of Aikins J. in R. v. Light[9], contains a useful collection of the cases on both sides of the question.

In the recent case of Kuhn and The Queen[10], the Court of Appeal of Ontario was considering a case where counsel for the accused had consented to an adjournment for a period of more than eight days in the absence of the accused himself and it was held that this technical breach involved only loss of

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jurisdiction over the person which was regained by the subsequent appearance of the accused before the magistrate. In this regard Dubin J.A., speaking for the Court, noted that:

It is to be observed that the provisions of s. 465 of the Criminal Code do not specifically require that the accused be present when the inquiry is to be adjourned.

Similarly, in R. v. Born[11], Dickson J.A., as he then was, rendered judgment on behalf of the Court of Appeal of Manitoba under like circumstances where the absence of the accused at the time of an adjournment of his case was due to his incarceration in the penitentiary. In finding that there was loss of jurisdiction over the person only and not over the offence, Mr. Justice Dickson observed that if the absence of the accused were to deprive the magistrate of jurisdiction over the offence

An accused could cause a magistrate to lose jurisdiction by the simple expedient of failling to appear unless the magistrate resorted to the use of a bench warrant.

The Born case is clearly not an authority governing the present circumstances and Mr. Justice Dickson was careful to say in the course of his reasons for judgment that:

Many of the cases dealing with loss of jurisdiction arose when the adjournment was sine die or for a period exceeding eight days. That is not the present case.

Much of the difficulty in this area has, I think, been occasioned by the use of the phrase “jurisdiction over the offence”. In my opinion the word “offence” as used in this phrase must be construed as meaning the “information” charging the accused with the offence and the result of an error such as occurred in the present case is, in my view, that that information is to be treated as if it had never been laid. This in no way affects the jurisdiction of the court in relation to the “offence” itself so as to preclude the laying of another information in the same jurisdiction charging the same offence. This result, I think, follows from the case of Trenholm v. Attorney General of Ontario, supra.

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The matter appears to me to have been well expressed by McKenzie J., of the Supreme Court of British Columbia in R. v. Mack[12], where he said, at p. 665:

With respect to this distinction between jurisdiction ‘over the person’ as contrasted to ‘over the offence’ in my view the only way the decisions can be reconciled is to assume that, if jurisdiction over the person is lost, it can be regained under certain circumstances (as in Kuhn) upon a subsequent appearance of the accused, but when jurisdiction over the offence is lost, in the words of the Kuhn decision, ‘the information lapses, jurisdiction is totally lost and no further process can be taken pursuant to it’. This is to say that this information has lost its potency but it is not to say that a fresh information cannot be proceeded upon.

In view of all the above, I would allow this appeal and direct that a writ of mandamus should be issued declaring void the recognizance entered into by the appellant on December 11, 1973, and order that the sum of $25,000 deposited by the appellant as a condition of his interim release be returned to him and that he and his sureties be fully released, discharged and exonerated with respect to the said recognizance.

Appeal allowed.

Solicitors for the appellant: O’Regan & O’Brien, St. John’s.

Solicitor for the respondent: John P. Byrne, St. John’s.