R. v. A, [1990] 1 S.C.R. 995
A, B and C Appellants
v.
Her Majesty The Queen Respondent
indexed as: r. v. a
File No.: 21753.
1990: February 2; 1990: February 15*.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the superior court and from the court of appeal for quebec
Constitutional law -- Charter of Rights -- Remedies -- Witness compelled to testify in a criminal trial fearing for the security of his parents living outside the country -- Whether a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms is available to persons living outside Canada.
A has been subpoenaed to testify in a criminal trial. As a result of a perceived threat to the security of the appellants, and in particular to B and C, arising from the testimony to be given, the appellants applied before the Superior Court for an order of certiorari to quash the subpoena or, alternatively, for a remedy pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms. A was prepared to testify if B and C were protected or if the R.C.M.P. satisfied the court that the protection for B and C was no longer necessary. The Superior Court judge declined to deal with the application on the merits and dismissed it on the grounds firstly, that the subpoena was validly issued and secondly, that B and C were out of the country and a s. 24(1) Charter remedy was not available to persons living outside Canada. The Court of Appeal declined to hear appellants' appeal on the basis that it was without jurisdiction. Leave to appeal to this Court was granted not only from the judgment of the Court of Appeal but also from the judgment of the Superior Court. In this Court, the appellants abandoned the request that the subpoena be quashed.
Held (Lamer and McLachlin JJ. dissenting): The appeal should be allowed and a new hearing before a judge of the Superior Court is directed.
Per Dickson C.J. and Wilson, La Forest, L'Heureux‑Dubé, Gonthier and Cory JJ.: The R.C.M.P. undertook to provide protection for A, B and C, three Canadian citizens. The undertaking was given in Canada where A was required to testify. It was due in part to the decision of the R.C.M.P. that B and C found themselves outside Canada when the application was brought. In those circumstances, the Superior Court judge was in error both in failing to consider the safety of the appellants and in finding that in the special circumstances of this case remedies were not available to persons who were out of the country. Since the appellants are now concerned solely with the protection of B and C or that they receive an explanation as to why the protection is no longer required, the Superior Court judge presiding at the rehearing might consider exercising either the inherent jurisdiction of the court or the application of an appropriate Charter remedy.
Per Wilson, L'Heureux‑Dubé, Gonthier and Sopinka JJ.: The Superior Court judge erred in declining jurisdiction to entertain the application. With respect to the motion to quash the subpoena, clearly the court can control abuse of its own process. The subpoena power can be abused notwithstanding that on its face the subpoena is regular. If, therefore, the conduct of the authorities amounted to an abuse of the use of subpoena powers, some form of relief would have been available. With respect to the Charter application, if a breach of s. 7 of the Charter had been made out, relief could be granted to the appellants. The threat to B and C affected not only them and the security of their persons, but A as well. Protection for them was relief for A even though the actual physical acts might have been required to be performed outside the jurisdiction.
Per Lamer and McLachlin JJ. (dissenting): The Superior Court judge did not err in declining to grant an order for protection of B and C under s. 24(1) of the Charter on the ground that they were outside the country. The force of Canadian law does not generally extend beyond our borders. An order for protection outside those borders would seem incapable of enforcement through our courts; it is a settled principle that a court will not make unenforceable orders. The possibility that an extraterritorial order could be made in appropriate circumstances is not foreclosed. But this case did not establish the foundation of such an order.
Cases Cited
By Cory J.
Referred to: R. v. Meltzer, [1989] 1 S.C.R. 1764.
By Sopinka J.
Referred to: Argentina v. Mellino, [1987] 1 S.C.R. 536.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 24(1).
Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40(1).
APPEAL from a judgment of the Quebec Superior Court and from a judgment of the Quebec Court of Appeal. Appeal allowed, Lamer and McLachlin JJ. dissenting.
Robert Rueter, Michel Décary and Ronalda Murphy, for the appellants.
Bernard Laprade, David Lucas and Myriam Bordeleau, Q.C., for the respondent.
//Cory J.//
The judgment of Dickson C.J. and Wilson, La Forest, L'Heureux-Dubé, Gonthier and Cory JJ. was delivered by
Cory J. -- In the circumstances of this case it is not appropriate to describe the factual background. They are unique and are fundamental to the decision reached. It is sufficient to note that there was a perceived danger to the appellants arising from the testimony to be given by one of them who was subpoenaed to testify at a criminal trial.
As a result of the perceived threat, an application by way of certiorari was brought to quash the subpoena or, alternatively, for a remedy pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms. In the material filed, A specifically swore that he was ready to testify either if protection was provided B and C or in the alternative if the R.C.M.P. satisfied the judge hearing the application that the provision of protection for B and C was no longer necessary. It became apparent in this Court that the appellants were not so much concerned with the quashing of the subpoena as with the provision of protection or a satisfactory explanation as to why it was no longer required.
The application was brought before a judge other than the judge presiding at the criminal trial. This was done with the full consent and agreement of the Crown because of the perceived possible danger to some of the appellants. The judge of first instance hearing the application declined to deal with the application on the merits. He dismissed it on the grounds firstly, that the subpoena was validly issued and secondly, that B and C were out of the country and a s. 24(1) Charter remedy was not available to persons living outside Canada.
The appellants' appeal to the Court of Appeal was dismissed on the ground that this was an interlocutory order and in light of the decision of this Court in R. v. Meltzer, [1989] 1 S.C.R. 1764, no appeal could be brought from such an order. Whether the Meltzer decision could be distinguished since the appellant A is a witness not a party and the order is final in its application to him, need not be considered in the circumstance of this case. Leave to appeal to this Court was granted not only from the Court of Appeal but also from the decision of the judge of first instance should that be required.
The effect of the original order may have placed B and C at great possible risk without any explanation offered as to why the R.C.M.P. re-assessed this situation. Pursuant to s. 40(1) of the Supreme Court Act, R.S.C., 1985, c. S-26, an appeal lies to this Court from "any final or other judgment of the highest court ..., or a judge thereof, in which judgment can be had in the particular case". The order of the judge of first instance was a final one in so far as the appellants are concerned. It is appropriate that jurisdiction be accepted in this case where the lives and safety of persons may be at risk.
The unique and special facts of this case are such that the appeal should be allowed from the decision of the judge of first instance. In this case all the appellants were Canadian citizens. The R.C.M.P. undertook to provide protection for A, B and C. The undertaking was given in Canada where A was required to testify. It was due in part to the decision of the R.C.M.P. that B and C found themselves outside Canada when the application was brought. In those circumstances the judge was in error both in failing to consider the safety of the appellants and in finding that in the special circumstances of this case remedies were not available to persons who were out of the country. The application must be re-heard.
The order directing a re-hearing should not in any way be taken as either directing or limiting the discretion of the judge re-hearing the application. The appellants have in this Court abandoned the request that the subpoena be quashed. They are concerned solely with the protection of B and C or that they receive an explanation as to why their risk is minimal. In the circumstances, the presiding judge might consider exercising either the inherent jurisdiction of the court or the application of an appropriate Charter remedy.
In the course of those considerations the judge re-hearing the application might well wish to determine as the first and prime issue whether B and C are at such risk that protection should be provided to them. When considering this matter the judge might come to the conclusion that interim protection should be provided until such time as he or she was satisfied that it was not necessary.
If the judge hearing the matter found that protection was required for B and C, an appropriate order to that effect might be made.
In the result, the appeal is allowed and a new hearing before a judge of the Superior Court is directed. That hearing should be expedited with a view to it being resolved before February 28, 1990. There will be no order as to costs.
//McLachlin J.//
The reasons of Lamer and McLachlin JJ. were delivered by
McLachlin J. (dissenting) -- This is an appeal from the dismissal of a petition for the issuance of an order of certiorari.
The petition claimed two types of relief:
(1)an order quashing or rendering non-enforceable a subpoena which had been issued against A to testify in a criminal trial;
(2)"...any other remedy which is just and appropriate in the circumstances of a violation of a Charter right", i.e. an order under s. 24(1) of the Canadian Charter of Rights and Freedoms.
The judge of first instance refused the relief sought, stating:
1.Certiorari does lie where there is absence or excess of jurisdiction. Mr. Décary, acting for the three petitioners, agrees that the subpoena meets the criterias listed in section 698 of the Criminal Code.
2.A remedy under section 24 of the Charter is not available to persons living outside Canada, who have nothing to do with the proceedings undertaken...
The Court of Appeal declined to hear the appeal on the basis that it was without jurisdiction.
Leave to appeal to this Court was granted from both the judge of first instance (per saltum) and the Court of appeal. I proceed on the basis that this appeal is taken from the reasons of the judge of first instance, in order to avoid the jurisdictional issues which troubled the Court of Appeal.
The case presented to this Court bore little resemblance to that before the judge below. While it is not entirely clear, the thrust of the proceedings before him was first to quash the subpoena and, alternatively, to provide protection for B and C outside Canada. Before us, the request that the subpoena be quashed was abandoned. Nothing was said about providing protection for A's parents, B and C, at their residence outside Canada. Rather, this Court was asked to make an order requiring the R.C.M.P. to pay for the return of B and C to Canada and to reimburse them for the sale of their business outside Canada and the loss of income associated with that. Thus, what began as a criminal proceeding for an order of certiorari, where the issue would be confined to jurisdiction, was transformed before this Court to something more akin to a civil claim for damages, injunctive relief, and specific performance of a contract.
For the purposes of this case, I am prepared to assume that a document entitled "Petition for an Order for Certiorari", which prima facie concerned only with jurisdiction can provide the basis for a claim for protection of a witness under s. 24(1) of the Charter.
This brings me to the question of whether the judge erred. I need not consider whether the judge erred in refusing to quash the subpoena, since the challenge on that point has been withdrawn.
Thus the only question is whether the judge erred in holding that the remedy sought under s. 24(1) of the Charter could not be granted to persons living outside Canada.
It will be observed that the issue is not whether Canadians' Charter rights exist outside Canada, but the much narrower question of whether the particular remedies sought in this case can be provided outside the country.
I confess to difficulty in seeing how a judge could effectively order that protection be provided for persons living outside Canada. Generally speaking, the force of Canadian law does not extend beyond our borders. An order for protection outside those borders would seem incapable of enforcement through our courts; it is a settled principle that the Court will not make unenforceable orders. I do not wish to be taken as foreclosing the possibility that in appropriate circumstances extraterritorial orders could be made. But the material before us on this critical issue in the case does not establish the foundation for such an order, in my view. For this reason, I cannot conclude that the judge erred in declining to grant an order for protection of B and C under s. 24(1) on the ground that they were outside the country. I observe that the question of whether protection could be provided in Canada, should B and C choose to return, appears not to have been raised before the judge.
The larger question of compensation also appears not to have been submitted to the trial judge. This is a complex issue which is dependent on a canvass of the relevant evidence to determine: (a) the legal nature of the agreement or undertaking relied on; (b) whether the agreement has been breached (the parties disagree on whether a risk requiring the protection of B and C has arisen); and (c) the amount of the compensation. Additionally, questions may arise about the power of a superior court of Quebec to grant such relief in the proceeding as it now stands. It would not be appropriate for this Court to embark on consideration of these questions in the absence of a hearing on them by a judge of first instance.
In summary, sympathetic as I am to the application of A, B and C, I am unable to conclude that the judge of first instance erred in declining the relief sought, given the basis upon which the matter was presented to him. I would therefore dismiss the appeal.
These reasons should not be taken as foreclosing further applications for relief by the applicants, A, B and C in the proper manner and to the proper courts.
//Sopinka J.//
The reasons of Wilson, L'Heureux-Dubé, Sopinka and Gonthier JJ. were delivered by
Sopinka J. -- I have had the advantage of reading the reasons of my colleague, Cory J., and agree with his disposition of this matter. In view, however, of the unusual nature of the case and the likelihood that these situations will recur, I wish to add some observations of my own.
An application was made to Paul J. for relief arising out of a perceived threat to the security of the persons of the appellants, and in particular B and C. A has been subpoenaed by the Crown to testify in a criminal proceeding against certain individuals. The perceived threat arises out of this fact and conduct on the part of A preceding the issue of a subpoena. The facts with respect to the existence of a threat and the need for protection are in dispute and no resolution was made by Paul J. It is not possible for this Court to come to an affirmative conclusion in this regard.
There were three alternative bases upon which to found the jurisdiction of the judge of first instance, Paul J.:
(1)a motion to quash the subpoena;
(2)a Charter application under s. 7 complaining of governmental action by the R.C.M.P.;
(3)a claim for witness protection invoking the inherent jurisdiction of the court.
It would appear that only (1) and (2) were relied on before Paul J. who held that certiorari did not apply and that Charter relief was not available. The Court of Appeal did not deal with the jurisdiction of Paul J. because it was of the opinion that no appeal lay to it. This Court granted leave to appeal directly from the decision of Paul J. and we need not concern ourselves with the jurisdiction of the Court of Appeal. Clearly, we have jurisdiction and are entitled to entertain the appeal: Argentina v. Mellino, [1987] 1 S.C.R. 536. Furthermore, we are entitled to provide relief if Paul J. erred.
In my opinion, Paul J. erred in declining jurisdiction. Either one of the two bases referred to above was sufficient to enable him to entertain the application. As to (1), clearly the court can control abuse of its own process. The subpoena power can be abused notwithstanding that on its face the subpoena is regular. If, therefore, the conduct of the authorities amounted to an abuse of the use of subpoena powers, some form of relief would have been available. Similarly, as to (2), if a breach of s. 7 had been made out, relief could be granted to the applicants. The threat to B and C affected not only them and the security of their persons, but A as well. Protection for them was relief for A even though the actual physical acts might have been required to be performed outside the jurisdiction.
I would have thought that central to the relief sought was the postponement of A's obligation to testify pending the determination of what protection, if any, should be afforded. In this Court, however, that claim was abandoned and the relief that Cory J. has ordered is the only appropriate relief. One can only resort to an exhortation to all concerned that the matter be dealt with before A is required to testify.
Appeal allowed, Lamer and McLachlin JJ. dissenting.
Solicitors for the appellants: Stikeman, Elliott, Toronto.
Solicitor for the respondent: John C. Tait, Ottawa.