Supreme Court of Canada
R. v. ‘Evgenia Chandris’, [1977] 2 S.C.R. 97
Date: 1976-01-30
Her Majesty The Queen Appellant;
and
The Steam Tanker, “Evgenia Chandris” Respondent.
1975: November 25; 1976: January 30.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION
Criminal law—Evidence—Subordinate legislation—Proof of delegated or subordinate legislation—Judicial notice—Oil Pollution Prevention Regulations, P.C. 1971-2005, SOR/71‑495—Canada Shipping Act, R.S.C. 1970, c. S-9 (am. R.S.C. 1970, c. 27 (2nd Supp.), s. 3(2)) ss. 727, 730—Canada Evidence Act, R.S.C. 1970, c. E-10, ss. 17, 20, 21, 22—Statutory Instruments Act, 1970-71-72 (Can.), c. 38, ss. 6, 11, 23, 27.
Statutory instruments—Statutory offence—Proof of regulation—Judicial notice—Oil Pollution Prevention Regulations, P.C. 1971-2005, SOR/71-495—Canada Shipping Act, R.S.C. 1970, c. S-9 (am. R.S.C. 1970, c. 27 (2nd Supp.), s. 3(2)), ss. 727, 730—Canada Evidence Act, R.S.C. 1970, c. E-10, ss. 17, 20, 21, 22—Statutory Instruments Act, 1970-71-72 (Can.), c. 38, ss. 6, 11, 23, 27.
Respondent was charged with a contravention of s. 5(b) of the Oil Pollution Prevention Regulations. The Regulations were not produced at trial and Crown counsel neither asked that judicial notice be taken of them nor implied that they had been published. The trial judge concluded that he could not take judicial notice of them and dismissed the case. On appeal by way of stated case the Appeal Division unanimously held that the trial judge was correct in law.
Held (Laskin C.J. and Spence J. dissenting): The appeal should be allowed.
Per Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ.: The Regulations P.C. 1971-2005, SOR/71-495 were published in the Canada Gazette, vol. 105 at p. 1723. Section 23(1) of the Statutory Instruments Act can be interpreted in two
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ways either that the words identify the class of instruments that must be judicially noticed without any evidence of any type being offered or that the words impose a condition precedent, of proving the publication, before judicial notice can be taken. Not all statutory instruments are published in the Canada Gazette and if the latter interpretation were accepted subs. (1) would be made completely useless, subs. (2) being sufficient for very easily proving the existence, publication and contents of the instrument. No enactment should be thus deleted from a statute unless no other conclusion is possible.
A comparison of s. 23 of the Statutory Instruments Act with ss. 18 and 19 of the Canada Evidence Act shows that both impose judicial notice as an obligation but also provide, as a material support for that obligation, that a document not otherwise admissible may be used. Thus the purpose of s. 23(2) becomes apparent, the subsection is not useless any more than s. 19 of the Canada Evidence Act. Section 23(3) has no role in the problem but completes s. 23(2) with respect to a consolidation. All three subs. of s. 23 have a meaning which would not be so if the judgment appealed from was well founded. This meaning results from Parliament’s decision to place on the same footing the statutory instruments published in the Canada Gazette and all Acts of Canada, public or private.
Per Laskin C.J. and Spence J. dissenting: Crown counsel at the trial made no request for judicial notice and took no step to place the relevant Regulations before the Court. Section 23 of the Statutory Instruments Act is a departure from strict common law methods of proof of documents. If there was to be a wholesale dispensation of proof to enable judicial notice to be taken clearer language should have been used than that of s. 23 considered as a whole. To read s. 23(1) otherwise than as requiring antecedent proof of publication in the Canada Gazette would make s. 23(3) redundant. There was nothing inconsistent in making judicial notice of a regulation dependent on proof of publication which would not in itself necessarily prove the contents of the regulation.
Section 715 of the Criminal Code, which is in Part XXIII of the Code, of which the heading is “Extraordinary Remedies” applies to proceedings in criminal mat-
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ters by way of certiorari, habeas corpus, mandamus and prohibition. These prerogative remedies are distinguishable from an appeal and should not be stretched into a provision of general application to apply to appeal in the broad sense or, as here, appeal by stated case.
As the omission of the Crown was not inadvertent and in view of the lapse of time the case should not be remitted back to the Provincial Court judge.
[Duffin v. Markham (1918), 88 L.J.K.B. 581; Snell v. Unity Finance Co. Ltd., [1964] 2 Q.B. 203; Tolley v. Fry, [1930] 1 K.B. 467 referred to.]
APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division[1], affirming on appeal by way of stated case a judgment at trial dismissing a charge of discharging a pollutant in contravention of s. 5(b) of the Oil Pollution Prevention Regulations. Appeal allowed, Laskin C.J. and Spence J. dissenting; matter remitted to trial judge for determination of the case on its merits.
Graham Pinos, for the appellant.
Hugh H. McLellan and Anthony Allman, for the respondent.
The judgment of Laskin C.J. and Spence J. was delivered by
THE CHIEF JUSTICE (dissenting)—This appeal by the Crown, which comes here by leave of this Court from adverse judgments of Provincial Court Judge George and the New Brunswick Court of Appeal, concerns a question of judicial notice of the federal Oil Pollution Prevention Regulations under which a charge was laid against the respondent ship.
The factual circumstances underlying this question are beyond belief. Crown counsel at the hearing of the charge apparently did not have the Regulations upon which the charge was founded with him or, if he did, he kept them concealed. They were not produced to the Court in any way, nor were they referred to by counsel or by any
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witness. At the conclusion of the evidence and when argument was commenced by Crown counsel, the Provincial Judge drew attention to the fact that the Regulations had not been brought before him in any way. Crown counsel did not ask the Court to take judicial notice of the Regulations and did not state or even imply that the Regulations had ever been published. In this state of affairs (as recounted by the trial judge in a stated case that was sought by counsel for the Attorney General of Canada), and defence counsel not replying or signifying assent to the Court’s inquiry whether he would agree to having the Regulations placed before the Court, the trial judge dismissed the charge. The New Brunswick Court of Appeal was unanimous in dismissing the Crown’s appeal.
When a court takes judicial notice of a fact or of a law it dispenses with the production of evidence to prove it. At common law, judicial notice was taken of public or general statutes but not of private enactments nor of subordinate legislation such as orders-in-council or regulations. By legislation of a common variety, such as is found in s. 18 of the Canada Evidence Act, R.S.C. 1970, c. E-10 and s. 70(1) of the New Brunswick Evidence Act, R.S.N.B. 1973, c. E-11, judicial notice is obligatory of all statutes, public or private. Hence, it is unecessary under such a dispensation to produce to the Court the text of a piece of legislation, although this would invariably be done when its interpretation is in issue.
Where subordinate or delegated legislation, such as orders of regulations, is in issue, there is no such mandatory and unqualified general provision respecting judicial notice thereof as is found in legislation respecting judicial notice of statutes. It was not suggested by the appellant in the present case that there is any common law rule of judicial notice of orders or regulations. There are instances in American case law where judicial notice has been taken of orders and regulations (see Wigmore on Evidence, 3rd ed., vol. 9, No. 2572, at p. 553), and the Model Code of Evidence of the American Law Institute in Rules 802 and 803 supports the
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obligatory taking of judicial notice of orders or regulations, but only if a request is made to that end, proper notice is given to the other side and sufficient information is given to the Court to enable it to comply with the request. These requirements are easily met in the case of orders and regulations and, while I do not, and need not for the purposes of the present case, suggest that this should be the law in this country, I must reiterate that Crown counsel at the trial made no request for judicial notice and took no step to place the relevant Regulations before the Court.
Two submissions were made by the appellant Crown to support its contention that judicial notice had to be taken of the Oil Pollution Prevention Regulations, despite the absence of any reference to them or any exhibition or production of their text or of any document containing them. The submissions rest, respectively, on s. 23(1) of the Statutory Instruments Act, 1970‑71-72 (Can.), c. 38 and on s. 715 of the Criminal Code, R.S.C. 1970, c. C-34. I shall deal with these submissions in reverse order.
Section 715 reads as follows:
715. (1) No order, conviction or other proceeding shall be quashed or set aside, and no defendant shall be discharged, by reason only that evidence has not been given
(a) of a proclamation or order of the Governor in Council or the lieutenant governor in council;
(b) of rules, regulations or by-laws, made by the Governor in Council under an Act of the Parliament of Canada or by the lieutenant governor in council under an Act of the legislature of the province; or
(c) of the publication of a proclamation, order, rule, regulation or by-law in the Canada Gazette or in the official gazette for the province.
(2) Proclamations, orders, rules, regulations and by-laws mentioned in subsection (1) and the publication thereof shall be judicially noticed.
The Crown relies on s. 715(2) to support its submission on judicial notice. The contention is untenable here because s. 715 is in Part XXIII of the Criminal Code, of which the heading is “Extraordinary Remedies”. The opening section in this Part
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is s. 708 which provides that “This Part applies to proceedings in criminal matters by way of certiorari, habeas corpus, mandamus and prohibition.” These so-called prerogative remedies are distinguishable from an appeal, whether an appeal in the broad sense or an appeal, as here, by stated case. It seems to me difficult to torture s. 715(2) into a provision of general application when it is related clearly to the prerogative remedies which give a special and limited range of review. The Crown sought to draw nourishment for its submission as to s. 715(2) from the dissenting reasons of Bull J.A. in R. v. Markin[2], at p. 27, but those reasons simply ignore the context in which s. 715(2) appears, not to mention its limitation to prerogative remedies by virtue of s. 708.
There is, in my opinion, nothing anomalous in extending the doctrine of judicial notice to orders and regulations where they are involved in proceedings that are attacked by the prerogative writs and in otherwise letting the ordinary laws of evidence apply to their proof or having proof made under facilitating legislation, such as is found in s. 21 of the Canada Evidence Act, or by reliance on s. 23(1) of the Statutory Instruments Act. When a number of procedures, each one different, are provided for questioning an order or a conviction or an acquittal, it may well be the case that a fuller range of grounds of reversal may be attached to one or more and not to another or others. The Criminal Code provides generous scope for a first appeal, especially in summary conviction matters. In respect of these, there may be a straight appeal which is by trial de novo under s. 755, or an appeal by way of stated case restricted to errors of law or of jurisdiction under s. 762. In neither of these procedures is there any special curative provision respecting judicial notice of orders or regulations, as there is under s. 715(2). No doubt, the alleged defect which is in issue here could be cured upon an appeal by trial de novo, but there is no curative provision where the appeal, as in the present case, is by stated case. Parliament has chosen to eliminate an evidentiary issue of want of proof of orders
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or regulations where the procedure to quash is invoked under s. 715; and by providing for judicial notice thereof it has simply narrowed the range of permissible objections under that special procedure which might be taken by an accused person. The advantage so given to the Crown under s. 715 was not extended to appeals.
The Crown’s principal submission invoked s. 23(1) of the Statutory Instruments Act, and for proper consideration of that submission I set out the whole of s. 23 which is as follows:
23. (1) A statutory instrument that has been published in the Canada Gazette shall be judicially noticed.
(2) In addition to any other manner of proving the existence or contents of a statutory instrument, evidence of the existence or contents of a statutory instrument may be given by the production of a copy of the Canada Gazette purporting to contain the text of the statutory instrument.
(3) For the purposes of this section, where a regulation is included in a copy of a consolidation of regulations purporting to be printed by the Queen’s Printer, that regulation shall be deemed to have been published in the Canada Gazette.
The Crown would have this Court read s. 23(1) as if the words “that has been published in the Canada Gazette” were not there, and would thus equate s. 23(1) with s. 18 of the Canada Evidence Act, providing unqualifiedly for judicial notice of Acts of Parliament. The Crown supports its contention by alleging that to read s. 23(1) as requiring antecedent proof of publication in the Canada Gazette would make it redundant in the light of s. 23(2). I do not agree that this is so. Rather do I think that if the appellant Crown is correct, it would be s. 23(2) that would be redundant. Moreover, agreeing as I do with the submission that meaning should be attributed to all parts of a connected enactment, the appellant Crown’s submission on s. 23(1) would also make s. 23(3) redundant. This provision shows another way in which proof of publication in the Canada Gazette may be shown, a way which does not require production of a copy of the Canada Gazette.
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I think it relevant as well to point out that what we have in s. 23 of the Statutory Instruments Act is a departure from strict common law methods of proof of documents, and if there is to be a wholesale dispensation of proof to enable judicial notice to be taken, clearer language should be expected than what appears in s. 23 when it is considered as a whole. I add too that there is nothing inconsistent in making judicial notice of a regulation dependent on proof of a supporting fact, e.g. publication, which would not in itself necessarily prove the contents of the regulation. That, in my opinion, is what is stipulated in s. 23(1). The mere fact that there may be overlapping provisions, as there undoubtedly are under s. 23 of the Statutory Instruments Act and s. 21 of the Canada Evidence Act, does not warrant the reading out of inconvenient words in order to arrive at a clean result which would not only eliminate the overlapping but would eliminate these associated provisions even in those respects in which they do not overlap.
The Oil Pollution Prevention Regulations were also involved in an issue of judicial notice in R. v. The Vessel “Besseggen”[3] which came to the British Columbia Court of Appeal also by way of stated case. The majority of the Court, in sustaining the trial judge’s decision that he could take judicial notice of the Regulations, did so on the ground that a copy of the Canada Gazette containing the Regulations was produced to him, and hence what is now s. 23(1) of the Statutory Instruments Act was satisfied. The contrary view urged by counsel for the vessel and supported by the dissenting reasons of Branca J.A. was that it was necessary formally to prove the Regulations or to prove publication in the Canada Gazette as a fact before judicial notice could be taken. Branca J.A. founded his reasons on the basis that a copy of the Canada Gazette had not been produced to the trial judge. The factual difference between the members of the Court in the Besseggen case does not arise here, and my only observation on that case is that it would be a sufficient support for judicial notice to produce or hand up to the trial
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judge a copy of the Canada Gazette containing the particular regulations.
I have given thought to the question whether this Court, at this stage, should send the case back to the Provincial Court Judge with a direction that it be re-opened to permit Crown counsel to tender or produce a copy of the Canada Gazette or to show publication under s. 23(3). This relief was not asked by the Crown either here or, so far as appears, in the New Brunswick Court of Appeal. Although the Crown was allowed to re-open its case in R. v. Kishen Singh[4] to repair inadvertent failure to prove a proclamation, bringing into force the statute under which the charge was laid, this was done by the trial judge and there was no prejudice to the accused. Here the Crown’s omission was not inadvertent, and at a distance of nearly four years since the charge was laid and nearly two years since the trial was held I am unwilling to guess that there would be no prejudice, nor do I think that the Crown deserves any indulgence.
I would dismiss the appeal.
The judgment of Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ. Was delivered by
DE GRANDPRE J.—This appeal raises the question of judicial notice of statutory instruments. The judgment of the Appeal Division of the New Brunswick Supreme Court being now reported[5] it will be sufficient for me to mention only the highlights of the factual situation:
1) on the 1st of February 1972, an information was laid stating that the respondent has discharged a pollutant in the Harbour of Saint John in contravention of s. 5(b) of the Oil Pollution Prevention Regulations, thereby committing an offence contrary to s. 761 of the
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Canada Shipping Act as amended by c. 27 of the Statutes of Canada, 1970-71;
2) the trial was held in Saint John before a judge of the Provincial Court and both parties presented their cases;
3) during the argument, the judge pointed out to counsel for the Crown that the regulations referred to in the information had not been introduced formally in evidence, nor had a copy thereof even been submitted to the Court;
4) counsel for the defence did not reply to the judge’s question if he would agree to have the regulations placed before the Court;
5) no copy of the Canada Gazette containing the text of the regulations was produced at any time to the Court.
The trial judge concluded that he could not take judicial notice of the regulations and dismissed the information. By stated case, pursuant to s. 762 of the Criminal Code, the Court of Appeal was asked whether or not this holding was correct in law and gave a unanimous answer in the affirmative. With leave, the question is now before us.
In the courts below, the defence had also raised a question of jurisdiction in the trial judge. This point has been abandoned by respondent in her factum.
The Court of Appeal has examined the question of judicial notice on the basis that the regulation, P.C. 1971-2005, SOR/71-495, which purport to have been made by the Governor General in Council pursuant to ss. 736 and 739 of the Canada Shipping Act, were published in vol. 105 of the Canada Gazette, at p. 1723 and following. I agree with this approach.
While four grounds had been raised by the Crown before the Court of Appeal in support of its submission, only two were pressed before us. Judicial notice of the regulations should have been taken
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a) by virtue of s. 715 of the Criminal Code;
b) by virtue of s. 23 of the Statutory Instruments Act, 1970-71 (Can.), c. 38.
Finding myself in agreement with the Crown on the second point, I will express no opinion on the first.
Section 23 reads:
(1) A statutory instrument that has been published in the Canada Gazette shall be judicially noticed.
(2) In addition to any other manner of proving the existence or contents of a statutory instrument, evidence of the existence or contents of a statutory instrument may be given by the production of a copy of the Canada Gazette purporting to contain the text of the statutory instrument.
(3) For the purposes of this section, where a regulation is included in a copy of a consolidation of regulations purporting to be printed by the Queen’s Printer, that regulation shall be deemed to have been published in the Canada Gazette.
It is common ground that regulations are statutory instruments.
What is the meaning of subs. (1)? There is no doubt that if it read “a statutory instrument shall be judicially noticed”, there would be no problem and the courts below would have taken judicial notice of the regulations. The difficulty arises because of the presence of the words “that has been published in the Canada Gazette”. So that the real question is to determine the meaning of the words just quoted in the context of the subsection:
a) one reading is that the words identify the class of instruments that must be judicially noticed without any evidence of any type being offered;
b) another reading is that the words impose a condition precedent thus creating the obligation to prove the publication before judicial notice can be taken of the instrument.
The Court of Appeal has opted for the second meaning after a full review of the cases pro and con. I prefer the first interpretation.
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All instruments are not printed in the Canada Gazette; ss. 6, 11 and 27 of the Statutory Instruments Act make this point very clear. Parliament when it decided to enact the rule that statutory instruments should be judicially noticed, had to decide whether that rule would apply to all instruments or only to those published in the Canada Gazette. By subs. (1), it decided upon this last course. Thus by the words of the statute, the rule of judicial notice is limited to those instruments which in fact had been published in the Gazette. But this fact of publication needs no proof. To impose that condition as a preliminary step before judicial notice can be taken of an instrument is to make subs. 1 completely useless, subs. (2) being then entirely sufficient for the purpose of rendering very easy the proof of the existence, publication and contents of the instrument. No enactment should be thus deleted from a statute unless no other conclusion is possible.
It is interesting to compare the treatment of the subject matter in the Act under consideration with that of the Acts of Parliament in the Canada Evidence Act. To facilitate this comparison, I give below, side by side, the relevant texts:
| Judicial Notice of Statutory |
Judicial Notice |
| Instruments |
17… |
| 23. (1) A statutory instrument that has been published in the Canada Gazette shall be judicially noticed. |
18. Judicial notice shall be taken of all Acts of the Parliament of Canada, public or private, without being specially pleaded. 1967-68, c. 7, s. 40. |
| (2) In addition to any other manner of proving the existence or contents of a statutory instrument, evidence of the existence or contents of a statutory instrument may be given by the production of a copy of the Canada Gazette purporting to contain the text of the statutory instrument. |
Documentary Evidence 19. Every copy of any Act of the Parliament of Canada, public or private, printed by the Queen’s Printer, is evidence of such Act and of its contents; and every copy purporting to be printed by the Queen’s Printer shall be deemed to be so printed, unless the contrary is shown. R.S., c. 307, s. 19. |
Under both statutes,
a) judicial notice is an obligation;
b) as a material support for that obligation, a document which otherwise would not be admissible in the Court record may be used.
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Thus, the purpose of subs. (2) of s. 23 becomes apparent. Parliament has stated that judges and courts in the discharge of their obligation to take judicial notice of statutory instruments printed in the Canada Gazette and of all Acts of Parliament need not feel obliged to ascertain the original text but can well be satisfied with using the contents as printed by the Queen’s Printer. Thus, subs. (2) is not useless any more than s. 19 of the Canada Evidence Act.
Subsection (3) of s. 23 has no role in the problem under study. It deals with a narrower situation, namely consolidation of regulations, and completes subs. (2) by enacting that after such a consolidation, there is no need to go back to the number of the Canada Gazette where the regulation was originally published.
Thus, all three subsections of s. 23 have a meaning, which is not the case if the judgment appealed from is well founded. This meaning is the result of Parliament’s decision to place on the same footing the statutory instruments published in the Canada Gazette and all Acts of Canada, public or private. This is a normal evolution in the light of the modern scientific possibilities to publish and to retrieve legal material. Till 1950, statutory instruments had to be proven under s. 21 of the Canada Evidence Act. If s. 23 of the Statutory Instruments Act does not add anything to that s. 21, it is a remarkable piece of useless legislation.
That evolution is not limited to Canada. In England where there is still, if I am well informed, no equivalent to s. 23, subs. (1) of our Statutory Instruments Act, Darling J., in Duffin v. Markham[6], where an information had been dismissed because an Order under the Defence of the Realm Regulations had not been put in evidence, stated that the Justices “should have treated the objection of the respondents’ solicitor as a mere technical triviality”. In Smell v. Unity Finance Co.
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Ltd.[7] decided in 1963, Willmer, L.J., with respect to a Control Order dealing with a hire‑purchase agreement which had not been put in evidence, stated at p. 216:
It seems to me it is quite wrong to treat the order as being a matter of evidence. It is a statutory order having the force of a statute. It appears to me that it is the duty of a court, when such a statutory instrument is brought to its attention, to apply it.
It is true that the context of this particular statement was somewhat different from the one with which we are here concerned but I do believe it shows the evolution that is taking place in England in this area of the law.
Although I have come to the conclusion that appellant’s submission is correct in law, I fail to understand why, as a matter of courtesy to the Court, counsel for the Crown at trial did not offer to the judge and to the defence a copy of the Regulations. He should have kept in mind the admonition of Baron Parke as reported in Wig-more on Evidence, 3rd ed., vol. 9, p. 538, footnote 3:
For the future, it would save time if, when you founded an objection upon an Act of Parliament, you had the Act here; for, though we are supposed to keep the statutes in our heads, we do not.
The lament of Scrutton L.J., in Tolley v. Fry[8] at p. 475, is also pertinent:
It is difficult to know what judges are allowed to know, though they are ridiculed if they pretend not to know.
On the other hand, the trial judge, assuming that he rightfully came to the conclusion that he could not take judicial notice of the regulations (an assumption that, obviously, I am not ready to make), should have used his authority to take the step ordered by the Court of Appeal in the Duffin case (supra) and told the prosecution to prove the
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regulations, even granting an adjournment for that purpose if need be.
I would allow the appeal, set aside the Order of the Appeal Division of the New Brunswick Supreme Court and remit the matter to the trial judge for determination of the case on its merits.
Appeal allowed, LASKIN C.J. and SPENCE J. dissenting.
Solicitor for the appellant: D.S. Thorson, Ottawa.
Solicitors for the respondent: McLellan & McLellan, Saint John.