ISSUES :r •T , E OF INTEREST r . VOLUME #7 Juspce Institute Of British Columbia 4180 Wes1 4th Avenue Vancouver. B.C. V6B 4J5 - i - TABLE OF CONTENTS PAGE Introduction - John M. Post iii Boggs v. lbe Queen Feb. 3, 1981 Supreme Court of Canada 1 Chromiak v. lbe Queen 49 c.c.c. (2d) 257 Supreme Court of Canada 3 Goldman v. lbe Queen (1980) 51 c.c.c. (2d) 1 5 R. v. Gordon 3 W.W.R. [1980] 655 Alberta Queen's Bench 9 Re Hartley and Fry et al Spearns v. Fry et al 102 D.L.R. (3d) Martin v. Attorney General of Nova Scotia 110 D.L.R. (3d) 16 Regina v. Colet December 2, 1980 Supreme Court of Canada 18 Regina v. Coons 51 c.c.c. (2d) 388 British Columbia Court of Appeal 1980 20 Regina v. Grant, Higgins and Sharma 48 c.c.c. (2d) 504 County Court, Vancouver, B. ·c. 22 Regina v. Kulak 46 C.C.C.(ed) 30 Ontario Court of Appeal 23 Regina v. LAL 51 C.C.C. (2d) 336 British Columbia Court of Appeal 27 - 11 - PAGE Regina v. Marketplace P.G., and Mcintosh. 51 c.c.c. (2d) 185 British Columbia Court of Appeal. 30 Regina v Reburn 55 c.c.c. (2d) 419 Alberta Court of Appeal September 1980 31 Regina v. Ridge 51 c.c.c. (2d) 261 British Columbia Court of Appeal 32 51 c.c.c. (2d) 65 Rosen v. lbe Queen Supreme Court of Canada 36 Legal Tidbits 38 - iii - June 1981 At the Academy we are attempting to tap all sources of information to assure that what we teach is accurate and current. In the process we continuously run across matters which are important to know for the working police officer. Through our courses we are in contact with a small segment of police personnel only and it was decided that an attempt should be made to be of service by means of a training bulletin. This is the first bulletin and more will follow when sufficient material has accumulated or importance of information dictates publication. This time the content is exclusively on issues that were before our Courts. Needless to say that other topics must also be included. If you have any suggestions for improvement or any specific topics you would like to see covered, please let us know. John M. Post Director - 1 - Boggs v. nie Queen Feb. 3, 1981 Supreme Court of Canada The Supreme Court of Canada has dealt many times before with legal questions in connection with s. 238 (3) c.c. which creates the offence of driving while disqualified. However, no one apparently questioned the validity of the section before. The accused was convicted in Alberta of driving while disqualified by reason of the suspension of his drivers licence. He appealed this conviction to the Supreme Court of Canada challenging the constitutional propriety of s. 238(3) c.c. In other words, the accused claimed that the offence is not within the jurisdiction of the Canadian Parliament. The Supreme Court reviewed the history of section 238 C.C. and came to the conclusion that its remains are no more than piggy-back legislation. At one time s. 238 provided that the Court, upon a conviction under the Criminal Code, could impose the suspension of a drivers license or prohibit a person from driving anywhere in Canada. At present the provincial authorities or a Judge,upon conviction of a provincial offence, may suspend a driver's license or one's right to obtain one. This was the reason why the Court referred to s. 238(3) C.C. as piggy-back legislation; the province suspends - the Canadian Parliament creates the offence. The question to be answered was: " ••••• is Parliament competent to add a criminal consequence to a provincial licence suspension whatever the reason for that suspension." The Court recognized that the obvious intent of creating the offence under section 238(3), was to give national effect to a provincial licence suspension. In spite of this expediency the Parliament of Canada overstepped its legislative authority with the section in its present form. It was concluded that s. 238(3) C.C. is ultra vires the Parliament of Canada. The accused's conviction was set aside. NOTE: In B. C., three persons were charged with driving whilst their respective driver's licenses were suspended. The charges were preferred under the provisions of the B. C. Motor Vehicle Act instead of section 238 of the Criminal Code. - 2 - Boggs v. 'lbe Queen The B. C. Court of Appeal held that the provision under the Motor Vehicle Act creating an offence for something which the Parliament of Canada has considered to be a crime, renders that provision ultra vires the Provincial Legislature. "The Criminal Code provision would eventually be nullified by the provision in the Motor Vehicle Act", said the Court. (R.v Munroe, Beatty, Jasket June 1980) It may well be that the decision by the Supreme Court of Canada, ruling that the "'suspension" offence under the Criminal Code is invalid, has revived the B. c. Provincial legislation the B. C. Court of Appeal ruled ultra vires. Written by John M. Post March 1981 - 3 - Is a Roadside Demand for a Breath Sample a Form of Detention? Must a Demand for the Presence of a Lawyer be Complied With? Does Failure to Wait Until Lawyer is Present Provide a Reasonable Excuse for Refusing to give Sample? Cbromiak v. 'lbe Queen 49 c.c.c. (2d) 257 Supreme Court of Canada In 1972, a Mr. Brownridge was subject to a demand for a sample of his breath. He accompanied the officers to the police station and there refused to give a sample until he had consulted his lawyer~ He was not allowed to contact his lawyer and was convicted of refusing to give a breath sample.* He appealed his conviction to the Supreme Court of Canada which held that Mr. Brownridge was detained and had therefore the right to retain and instruct counsel without delay (section 2 (c) (ii) Bill of Rights). The failure on the part of police to meet the obligation on them to allow anyone arrested or detained access to legal counsel provided Mr. Brownridge with a reasonable excuse to refuse giving a sample of breath. In this case the accused Chromiak was subject to a demand for a breath sample under the new section 234.1 (1) c.c., known as the roadside breath test. He, like Mr. Brownridge, demanded to consult his lawyer before giving the sample. No opportunity for legal counsel was provided and Mr. Chromiak was convicted of unlawfully failing to comply with a demand made of him under section 234.1 (2) c.c. Arguing that there was no distinction between his legal situation and the one Mr. Brownridge found himself in back in 1972, Mr. Chromiak appealed his conviction to the Supreme Court of Canada. The main issue, of course, was if the accused was detained within the meaning of section 2 (c) of the Bill of Rights, and the reasoning of the Supreme Court of Canada and its consequences should be of interest to police officers. Firstly the Supreme Court of Canada explained that Mr. Brownridge was not simply accompanying a police officer in compliance with a demand under section 234 C.C., but reviewed that he had been arrested for impaired drivin·g . At the time he demanded legal counsel he was under arrest and detained in cells. This fact by itself made the Chromiak case distinct from the Brownridge one. Mr. Chromiak was not arrested and had been issued an appearance notice for his refusal on the scene, and was sent home with a sober friend. * Brownridge v. The Queen (1972) 7 c.c.c. (2d) 417 - 4 - Chroudak v. '1be Queen This left the Supreme Court to decide whether a demand for a breath sample causes the person,who is by law obliged to comply with that demand, to be detained within the meaning of the Bill of Rights. Furthermore,is there any distinction in this regard between a demand for a sample of breath at the roadside and one where the officer demands the suspected impaired driver to accompany him for the purpose of a breath analysis. The seven Justices unanimously accepted the observations a Justice of this Court made in a dissenting judgement in the Brownridge decision. Though the opinion was a dissenting one in regards to its conclusion, the definition of "detention" it contained was considered to be accurate. The Criminal Code of Canada uses the words "detain" and "detention" in a number of sections and they are "consistently used in association with actual physical restraint". At minimum the restraint must be compulsory before it can be considered detention. The Justice had observed that to be detained means "to be held in custody". He had reasoned that in a lot of situations we are obliged to comply with directions a police officer is entitled to issue, particularly under provincial traffic laws, and decided that no distinction existed between such obligations and those imposed by a demand for a breath sample under section 234 C.C. The Supreme Court of Canada concluded in this Chromiak judgment that the observations made regarding detention in the dissenting opinion in the Brownridge case are equally as pertinent to section 234.1(1) c.c. This means that in the absence of compulsory or actual physical restraint a suspected impaired driver is not "arrested or detained" when subjected to a demand for a sample of breath under section 234 or 234.l(l)C.C. Consequently the accused had not been deprived of his right "to retain and instruct counsel without delay" and had therefore no reasonable excuse for his failure to comply with the demand of the officer. Appeal dismissed. Conviction upheld. Written by J. Post March 1981 - 5 - INVASION OF PRIVACY, PART IV 1. C.C. What is a private communication? Who is the "originator" of a private communication? What is a "lawfully made" interception of a private communication? Must the consent to an interception be voluntary? Goldaan v. 'Die Queen (1980} 51 c.c.c. (2d} 1 Supreme Court of Canada The Privacy Act under the Criminal Code creates an indictable offence for intercepting a private communication unless the interception was made with the consent of the originator or the intended receiver of the private communication. The Code also stipulates that evidence obtained directly or indirectly as a result of an interception of a private communication is not admissible in evidence unless it was lawfully made OR the originator or intended receiver of the communication gives his express consent to such admission. The Criminal Code defines a "private communication" as any oral or telecomm~nication where it is reasonable for the originator thereof (not the intended receiver) to expect that the communication will not be intercepted. A Mr. D. was one of the alleged co-conspirators of the accused in the offence of possessing and distributing counterfeit U. S. money. D. was arrested in the States with such money in his possession. To make things better for him and his woman friend he co-operated with police in their investigation of the accused. After being brought to Canada he gave a written consent to police to intercept private communications between him and the accused. He then phoned the accused and met him later with a body-pack transmitter on him. Both communications were taped and the contents became the main evidence against the accused. After Mr. D. rendered his services he disappeared. The accused was acquitted at trial, then ordered to stand trial again by the Ontario Court of Appeal and he appealed that judgment to the Supreme Court of Canada. The arguments raised in this case are extremely interesting and the judgement of our highest Court settles a number of ambiguities about the interpretation of the invasion of privacy provisions. - 6 - Goldman v. "1be Queen The Crown had taken the position that the private communications between D. and the accused were lawfully intercepted. Due to the consent by D. it was not an offence to intercept the communications and the interceptions were therefore lawful. In the event the Court would find that a lawful interception is exclusively one that is judicially authorized, the Crown submitted that the communications between D. and the accused were not private. Th.is as D. was the originator of them and he was fully aware that they were intercepted. If this was the case, the invasion of privacy provisions would not apply at all and the conversations should be evidence. Defence counsel argued that the required consent to the interception had not been proved; furthermore that a lawfully made interception is a judicially authorized interception. This means, he said, that the only way the Crown could have the communications admitted in evidence was upon proof of express consent to such admission by Mr. D. Needless to say, such evidence was not available as D. had flown the coop. The Supreme Court of Canada held that the originator of a private communication is not, as popular belief has it, the person who dialed the phone number, the one who arranged the meeting or the person who started the conversation. He may be the originator of a conversation, the meaning of which is quite distinct from a communication. A series of communications make up a conversation. A communication "involves the passing of thoughts, ideas, words or information from one person to another". He who utters these is the originator of the communication. Therefore, whatever the accused said in the conversations with D. was a private communication of which the accused was the originator and Mr. D. the intended receiver. Said the Supreme Court: "If a person with a reasonable expectation of privacy, speaking in an electronically intercepted conversation makes statements which the Crown seeks to use against him, he has, in my view as the originator of those statements, the protection of the privacy provisions of the Criminal Code because those statements constitute private communications upon his part and their admissibility at any subsequent trial will depend upon the provisions of Part IV. l of the Criminal Code". The Supreme Court also ruled that when the originator or the intended receiver of a private communication has consented to the interception, the interception is lawful and the evidence resulting therefrom may be admitted. A lawfully made interception is not exclusively one that is judicially authorized. - 7 - Goldman v~ 'Jhe Queen In regards to the voluntariness of D's consent to the interception, the Court found that he was "a person of some recorded criminal reputation" who had been "persuaded by promise of leniency to cooperate with the police in the interception". If a statement had been obtained by these means, it would no doubt have been ruled inadmissible in evidence. The Court held, however, that Parliament had contemplated the kind of consent D. gave. The Supreme Court said: "The consent given under s. 178.11 (2)(a) C.C. must be voluntary in the sense that it must be free from coercion. It must be made knowingly in that the consentor must be aware of the significance of his act and the use which the police may be able to make of the consent". Therefore the voluntariness here differs considerably from that prerequisite to the admissibility of a statement. The mere consent given on account of promise of leniency or immunity of prosecution would not prevent admissibility of the intercepted communication in evidence. Accused's appeal dismissed Conviction upheld. Comment Although there is now a judicial precedent binding on all Canadian Courts, one could have argued on about what was really intended by those who wrote and passed these enactments. For instance does this mean that the consent to intercept and the consent to the admissibility in evidence are equal? If so, one seems to be superfluous. Like in this case, if consent is obtained, the interception is lawful and the evidence admissible. Perhaps the only purpose served by the provision that the evidence of a communication may be admitted upon express consent, is to adduce such evidence where the interception was unlawful. It seems then that the only purpose consent to admission in evidence serves is where the interception was unlawfully made. The Courts did not allude to this, but another argument could be advanced in support of the reasoning of the Supreme Court of Canada in regards to the meaning of the phrase, "lawfully made interceptions". The finding of the Court was very consistent with the interpretation of "lawful" in other provisions of criminal law. Anything that is not contrary to law is lawful but where Parliament only will permit something if the letter of the law has been followed, it will use the phrase "by law". Section 517 c.c. is a prime example of this. It provides that anyone who possesses property .. by law" is for the purpose of theft the owner of that property. In the Scott* case the possessor of the property stolen was named as the owner in the information as he had possession by means - 8 - Goldman v. 'Die Queen of a civil contract with the real owner. This, the Court held, made him the "lawful" possessor but not a possessor "by law". A possessor by law is a person who possesses something because of a specific provision in legislation that makes him the possessor, e. g. executor of an estate, a peace officer who has seized goods the law stipulates he can seize, etc. * R. v. Scott 1970 3 c.c.c. 109 Written by John M. Post March 1981 - 9 - TO TELL THE TRUTH DOUBLE JEOPARDY - PERJURY - CONTRADICTORY EVIDENCE ISSUE ESTOPPEL R. v. Gordon 3W.W.R. (1980] 655 Alberta Queen's Bench The Accused was tried by a Judge and Jury of having robbed a Mr. M. of a wallet and content, a jacket and a wrist watch. A Mr. B. was the companion of Mr. M. at the time of the alleged robbery, but nothing was taken from him. The Crown, of course, subpoenaed Mr. B. but he could not be located for service and the trial went ahead without him. The accused testified that the items he was supposed to have taken from Mr. M. had been given to him by Mr. B. This aparently raised a reasonable doubt in the Jury's mind and the accused was acquitted. Subsequently, Mr. B. was located and he could testify that the accused did rob Mr. M. and that he had not given the stolen articles to the accused. A charge of perjury was preferred against the accused and he was tried before a jury. The defence raised the matter of double jeopardy and issue estoppel claiming that the accused was tried for a second time on the same facts in issue but simply in the guise of a different charge. In other words, the issues had been tried and determined in previous Court proceedings and trying them again would render the process a farce. The principle is known as Res judicata. Whether or not issue estoppel applies because of a violation of this rule is a question of law and has to be decided by the Judge. This reason for judgement is exclusively on this question and should be of interest particularly to criminal investigators. Issue estoppel, an issue that effectively stops a proceeding, has not been heard of too often in criminal cases as it was doubtful if it applied to criminal law. In the latter part of 1979 the Supreme Court of Canada settled this ambiguity when it ruled unanimously that "issue estoppel is part of the criminal law of Canada".* *(Gushue v. the Queen) 50 c.c.c. (2d) 417. Supreme Court of Canada December 1979. - 10 - R. v. Gordon Whether issue estoppel applied in this case and would stop the proceedings against the accused for perjury, required the Judge to determine if the prerequisite conditions existed: 1. If one testifies during a trial and is consequently charged with perjury, he can only claim double jeopardy (if it is available) if he was the one being tried when he testified; 2. The heart of the dispute between the Crown and the accused was whether the accused robbed Mr. M. He testified to the heart of the matter and stated under oath that he did not rob Mr. M. In his trial for perjury, for the Crown to be successful, the same facts had to be proved as in his original trial - that is that the accused did rob Mr. M. . If such is the case the accused is doubly jeoparidized in that the same matters and facts have to be tried again. This would be an issue that can stop the proceedings. (Had the accused testified and allegedly committed perjury regarding some peripheral point, rather than the heart of the dispute, he could be tried for perjury); and 3. If the evidence regarding the perjury was fresh and became available to the Crown since the original trial, then the accused could be tried for the perjury, in spite of the fact that his testimony that is alleged to be perjurous was to the heart of the criminal dispute. The prerequisites mentioned in 1. and 2. existed, so the remaining question was whether the testimony and information that has to prove the accused a perjurer in this trial was available to the Crown at the original trial. Evidence that was not available during the original trial includes evidence that did not exist at that time. For instance the accused may confess subsequent to his trial that he perjured himself. That was not the case here. The test to be applied to all other evidence to determine whether or not it was available at the original trial _is whether or not "reasonable _ diligence was exercised" to secure it and make it available to the Court. In this case the witness, Mr. B., could not be served with his subpoena. This does not mean that his evidence was not available. When that is the case the Crown is, as a matter of right,· entitled to an adjournment. It had also been open to the Crown to enter a stay of proceedings when Mr. B could . not be found, obtain a warrant for his arrest and seek all other appropriate remedies to secure his attendance. Therefore, the law does not consider that in a case such as this, the evidence was not available. The facts in issue in the robbery trial were the very facts in issue in this trial for perjury; the evidence of Mr. B. was available and not fresh. The accused was therefore doubly jeopardized and the proceedings against him were stopped. Accused acquitted. - 11 - B.. v. Gordon The Court recognized the extreme difficulties the Crown may experience when an accused testifies and wishes to rebut his evidence. If it cannot proceed with perjury subsequently the Crown must call its witnesses to counteract the accused's alleged false claims during the same trial. This may be extremely difficult where it cannot be anticipated what the accused's testimony will be. Particularly when he, in his testimony, lays the foundation for a defence of alibi. The Court expressed support for the much discussed and suggested rule that an accused is obliged to notify the Crown in advance of his trial, when he intends to raise an alibi. Many legal minds do disagree with the reasoning in this judgement and argue that, in the first trial the dispute was whether the accused committed robbery, while in the second the issue was whether he gave false evidence, and did thereby mislead the Court. In other words, in the second trial the main issue in the first one (the accused's testimony to the heart of the dispute, that he did not rob Mr. M.) was only a means by which he committed perjury. This also appears to be the opinion of the House of Lords*. Although it was held that the Crown can only prosecute a person once for an alleged delict, perjury was seen as an exception to this principle. The Lords expressed the opinion that a person "is not to be permitted to es cape the consequences of having testified falsely at his trial". Whether or not this is also the case in Canada, has not been decided by our Supreme Court. As will be explained below, our highest Court was deprived of making this decision in the Gushue case, supra. The accused Gushue and one Mr. Mc.Donald set out to commit a robbery. The victim was the proprietor of a taylor shop. The Crown alleged that the accused entered the store and shot and killed the victim, while his partner, Mc.Donald, stayed outside or simply withdrew from the plan; at least that is what Mc.Donald said in his testimony. The accused also testified and said that he was the one who withdrew from the criminal scheme and that it was Mc.Donald who had entered the store. The accused was acquitted at the conclusion of his trial for non-capital murder. *Director of Public Prosecutions v. Humphreys (1976) 2 All E.R. 497. - 12 - R. v. Gordon Some four years later, while being questioned for other offences, the accused told police how he had been resisted by the taylor and that he had killed .the man to overcome the resistance. As a consequence the accused was charged with robbery and perjury. The Provincial Court Judge refused to accept the accused's plea of guilty to perjury and held a preliminary inquiry during which the accused testified to have murdered the taylor. The Judge was of the opinion that the same issue, whether or not the accused murdered the taylor, had to be tried in the perjury case. He ruled that due to the acquittal on the murder charge, the issue could not be relitigated. The Crown persisted and with the consent of a County Court Judge, preferred an indictment against the accused for perjury and giving contradictory evidence; the former being based on his testimony during his trial for murder and the latter for the contradiction of that evidence and the evidence he gave during the preliminary inquiry. On his trial by Judge and jury the accused was acquitted of perjury for the same reason as the Provincial Court acquitted the accused. However, the accused was convicted of giving contradictory evidence. Both the Crown and the accused appealed. The Crown disputed the acquittal of perjury and the accused his conviction for robbery (to which he pleaded guilty) and the conviction of giving contradictory evidence. The Ontario Court of Appeal basically left matters as they were, but the justices commented that they did not see anything wrong with a conviction of perjury in these circumstances and would have ordered a new trial if it was not for the conviction of giving contradictory evidence. The Crown did not appeal that issue any further but the accused received leave to appeal his convictions for robbery and giving contradictory evidence to the Supreme Court of Canada. This then meant that not the same issue as in the Gordon and Humphrey cases, supra, was before the Supreme Court. The accused pleaded that issue estoppel applied in this case. Firstly the Court reiterated that issue estoppel is part of the criminal law of Canada, and then addressed itself to the question whether it had any application to the two convictions of the accused in this case. It was decided that, in this case, it was not important whether the testimony was to the heart of the issue in the trial or not. The charge was giving contradictory evidence in regards to the same occurrence and not perjury. The Supreme Court held that it had one thing to consider: "did the Crown make an attempt to retry the accused". The Court found that this was not the case, therefore issue estoppel was excluded, and held consequently that: "~---issue estoppel cannot be founded on false evidence when the falsity is disclosed by subsequent evidence not available at the trial from which issue estoppel is alleged to arise". - 13 - R. v. Gordon In respect to the acquittal of the accused on the charge of murder and his subsequent conviction of armed robbery, the defence argued that this was a matter of double jeopardy in this situation. It was made clear during the murder trial that the robber and murderer was one and the same person. It follows then, that if the accused was not the murderer (he was acquitted) he could not be the robber. Therefore, the same issue was tried during his robbery trial. The Supreme Court rejected this argument. There are all kinds of possibilities which may have led the jury to the accused's acquittal. To say that the jury acquitted the accused because he was not the robber is not the "only rational explanation of the verdict of the jury". It is therefore conjecture what the issues were for the jury. Not knowing this we cannot say if the accused was being tried again on the same issue. Robbery is not an included of fence in murder and he was therefore not tried for the former offence during his murder trial. Note: It should be noted that the Gushue case does not negate the findings in the Gordon case by the Alberta Queen's Bench. The distinctions between the two cases in that in Gordon the charge was perjury in regards to the heart of the case. Furthermore.it was alleged that the accused Gordon lied when he testified and that Mr. B., the lost witness in the robbery trial, spoke the truth when he testified during Gordon's trial for perjury. In Gushue, the accused was charged with giving contradictory evidence. The testimony came f~om one source both times and it was not necessary to prove during which proceedings his evidence was false. A case involving "knowingly giving false testimony" was dealt with by the B.C. Court of Appeal in Regina v. Moore*. Moore was tried in Provincial Court for a driving of fence. He testified that he had not been driving at the time of the alleged offence. He explained that he was a mere passenger and that his wife had been driving. As a result, the. Crown preferred the following three charges against the accused: * l.· per jury for testifying that he did not drive; 2. perjury for testifying that his wife had been driving and that he was a passenger; and 3. attempting to obstruct justice by "giving false testimony in a trial in the Provincial Court of B.C." R. v. Moore [1980) 4 W.W.R. 511 - 14 - K.. v. Gordon A jury acquitted the accused on count 1 and 2 but convicted him of count 3. Both the Crown and the accused appealed the jury's decision. Only the accused's appeal was successful and the B.C. Court of Appeal ordered a new trial on count 3A Somewhat aside from the topic, when the accused appeared for his new trial an argument immediately ensued. Defence counsel claimed that the accused was entitled to enter a plea while the Crown was of the opinion that the accused was not entitled to enter a plea on a directed new trial and that the Court must proceed on the basis of the plea entered at the original trial. The Judge presiding at the new trial allowed the accused to enter a plea and he, of course, entered the special plea of double jeopardy "autrefois acquit", which in essence means "I have been tried for and acquitted on the same facts and events and cannot be tried again". Counsel for the accused argued that the "same facts and events" had been tried during the perjury trial as all t hree counts arose from the same testimony. Needless to say that if the accused had been tried originally only for attempting to obstruct justice and was acquitted, then, if upon an appeal a new trial was ordered, he could not claim double jeopardy. The statutory provision for conducting a directed new trial upon appeal, simply supersedes the common law doctrine of double jeopardy. This was not the case here. The accused claimed double jeopardy at his new trial for attempting to obstruct justice on account of his acquittals on the charges of perjury. In any event, the judge presiding over the new trial allowed the special plea to be entered and held that it was available to the accused. The Crown appealed this decision. Firstly, the B.C. Court of Appeal, dealing now with this case for the second time, held that although an accused is not required to enter a plea at his new trial he is not precluded from doing so. The Court reasoned that the accused may well wish to plead guilty at his new trial. Surely the Crown would not object to that. In considering if the accused ' s acquittal of perjury would prevent a subsequent trial on attempting to obstruct justice, where both charges arise from the same facts and events the Court identified the ingredients to each of these charges in this case. For perjury the Crown had to prove that the accused: 1. 2. 3. 4. was a witness at a judicial proceeding; while such a witness gave false evidence; knew the evidence he gave was false; and gave the false evidence with the intent to mislead the Court. - 15 - R. v. Gordon For the allegation of attempting to obstruct justice by giving false evidence the Crown had to prove that the accused (1) wilfully attempted to obstruct the course of justice by means of (2) giving false testimony in a trial in the Proyincial Court of B.C. The B.C. Court of Appeal held in regard to the availability of the plea of autrefois acquit that the issue was not necessarily the one claimed by that plea, but issue estoppel, and dealt with the alternative claim by the defence that the verdict by the jury was inconsistent. In view of the identical ingredients to be proved in the charges of perjury and that of attempting to obstruct justice it {the jury) was not entitled to find the accused innocent of perjury and guilty of attempting to obstruct justice by giving testimony that he knew to be false. The Court of Appeal disagreed with the submission and observed that by virtue of Section 123C.C. perjury must be "corroborated in a material particular by evidence that implicates the accused", which is not a prerequisite to find guilt of obstructing justice. In other words, the jury may well have found that there was no corroboration and was therefore precluded to return a verdict of guilty on the perjury charge. This meant that the verdicts of not guilty of perjury but guilty of obstructing justice were not inconsistent. Crown's appeal allowed Discharge on plea of autref ois acquit set aside New trial to be conducted Written by John M. Post March 1981 - 16 - CRIMINAL CHARGES AND DISCIPLINARY PROCEEDINGS ARISING FROM THE SAME FACTS SUPREME COURT OF NOVA SCOTIA Ke Hartley and Fry et al Spearns v. Fry et al 102 D.L.R. (3d) Martin v. Attorney General of Nova Scotia 110 D.L.R. (3d) In both cases police officers were charged under the Criminal Code with common assault as well as "discreditable conduct" contrary to the Code of Discipline which is part of the regulations pursuant to the Nova Scotia Police Act. In each case the criminal charges and the disciplinary actions arose from the same facts and circumstances. In the Hartley and Fry case the criminal and disciplinary charges were preferred simultaneously and the disciplinary hearing was commenced prior to the officers' trial in Provincial Court. Hartley and Fry petitioned the Supreme Court for an order prohibiting the disciplinary proceedings against them. In Martin v Attorney General the constable was acquitted of the criminal charge and subsequently accused of the discipline offence. He admitted the discreditable conduct and was fined 8 days pay. After this, Cst. Martin sought ancillary relief.from the Supreme Court in respect to the disciplinary action to which he had been subjected. The officers based their arguments on the fact that the Code of Discipline stipulates that where a police officer has been acquitted or convicted of an offence no disciplinary action shall be taken against him arising from the same facts and circumstances. Practically in the same breath,however, the ~~ Regulations state that this provision does not apply where the disciplinary proceedings relate to "separate and distinct issues". (Note that it does not say separate and distinct facts and circumstances) In both cases the officers failed to persuade the Supreme Court that the disciplinary actions against them were illegal. The Justice who decided the Martin case agreed with his "brother" who presided over the Hartley and Fry - 17 - Hartley and Fry et al Spearns v. Fry et al . dispute. That portion of the reason for judgement in the Hartley and Fry case that goes to the heart of the issue, reads as follows: "It is my opinion that i f the constables are acquitted of the criminal charges, they would nevertheless be subject to disciplinary procedures on charges under s. l(a) of the Code of discipline as the disciplinary hearing relates to a separate and distinct issue from that tried in the criminal proceedings, the issue in the criminal proceeding being whether the constables committed an assault under the Criminal Code, while the issue in the discipline proceedings being whether the constables contravened the Code of Discipline by acting in a manner that was reasonably likely to bring discredit upon the reputation of the Halifax Police Force". Written by John M. Post March 1981 - 18 - Regina v. Colet December 2 9 1980 Supreme Court of Canada "The house of every one. is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose ••••••• "* This famous dictum dating back to 1604 was cited by the Supreme Court of Canada on December 2nd, 1980 in its reason for judgement in Colet v the Queen. Mr. Colet was charged with two counts of attempted murder and two counts of intending to cause bodily harm. His intended victims were police officers. Mr. Colet lived in "rudimentary shelter" and the municipality decided to take down his home and clean up the property. The accused made it known that he would protect his humble abode and it was apparently common knowledge that he to that end had armed himself with firearms and explosives. To ensure safety for the Public Works personnel to carry out council's orders, police obtained a warrant pursuant to section 105(1)C.C., which authorized the seizure of all firearms and explosives from the accused. As neither the wording of the section nor that of the warrant included the power to search, police sought legal advice. Seemingly the experts were of the opinion that authorization to seize includes power to search. When police arrived at the accused's home it was evident that he disagreed with the legal experts. Even waving the warrant, accompanied by a shouted message that this was an authorization by the Supreme Court to search his home, did not deter him from defending his property from the roof of his home. Luckily no one was hurt. The accused, who was acquitted by a jury, was ordered to stand trial again by the B. C. Court of Appeal. He appealed the Court of Appeal decision to the Supreme Court of Canada. The issue to be decided was whether the police officers were trespassers when they attempted to search the accused's home. To do this the Court had to first determine if authority to seize includes power to search. The Crown's position in support of such a finding was that the Supreme Court of Canada in 1975 had decided in Eccles v. Bourque** that entering and searching a home Qn the strength of reasonable and probable grounds that the person for whom police had a warrant was in the home, was a situation where personal rights had to yield to public interest. * 1604 7 E.R. 194 5 Co. Rep. 91a ** (1975) 2 s.c.R. 739 - 19 - Regina v. Q>let The Supreme Court of Canada had added: " ••••• The criminal is not immune from arrest in his own home nor in the home of one of his friends ••••••••••••••••••••• Thus it will be seen that the broad basic principle of sanctity of the home is subject to the exception that upon proper demand the officials of the King may break down doors to arrest". In addition the Crown drew the Court's attention to section 26(2) of the Federal Interpretation Act, which states: "Where power is given to a person, officer or functionary, to do or enforce the doing of any act or thing, all such powers shall be deemed to be also given as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing". In their reason for judgement the Justices of the Supreme Court of Canada made it clear that they were not reversing their views as they expressed them in Eccles v. Bourque. However, they found that the precedent did not afford authority for the proposition that public interest is paramount and the rights of the individual secondary. All sections in the Criminal Code were enacted in the public interest. This does not mean that therefore the rights of individuals can be violated in furtherance of the enforcement of criminal law, unless there are specific provisions to do so. In Eccles v.Bourque the Court's remarks were limited to incidents of entering a home against the tenant's will to _search for a "fugitive from justice". The Court reviewed nearly all provisions in law authorizing the seizure of property and found that in all eases a separate provision to search is made. It therefore rejected the suggestion that the Interpretation Act creates a dual authority from s. 105 C.C., that is to "seize" and to "search". Said the Supreme Court of Canada: "••••••••if Parliament intended to include the power "to search" in the provisions of s. 105(1), the failure to do so was a clear case of legislative oversight, but that power which has not been expressly conferred cannot be supplied by invoking the provisions of the Interpretation Act". As a consequence the officers were trespassers. Acquittals were restored. Written by John M. Post March 1981 - 20 - STATEMENTS Regina v. Coons 51 c.c.c. (2d) 388 British Columbia Court of Appeal 1980 Usually the objective of the Crown in adducing a statement made by the accused is to thereby prove the truth of its content. It is because of the possible acceptance of the statement as evidence of facts that the Courts have insisted on voluntariness on the part of the accused as a prerequisite to its admissibility in evidence. Statements extracted by coersion of some kind cannot be relied upon to be true. It has happened, however, that statements made by a suspect, which wer e later ruled inadmissible in evidence, led investigators to the scene of a crime or the location of items related to the crime (known as subsequent facts). The Supreme Court of Canada reiterated in 1970* that where, by virtue of an inadmissible statement by an accused, facts are discovered those facts and those portions of that statement directly and strictly related to those facts must be admitted in evidence. This, of course, as the statement is-then no longer the exclusive proof of its content. The discovery of the fact confirms the truth of the content of part of the confession that relates to that fact. In the Wray case, for instance, the confession was ruled inadmissible but that portion of it that led investigators to a rifle which Wray claimed to be, and which by a ballistic test proved to be the murder weapon, was admitted in evidence. In this Coons case, the accused was convicted of the murder of a young woman, whose mutilated body was found behind a school building. The body had been found before the police questioned the accused. The accused did take police to the murder scene. The "walk" to the location was part of a confession by the accused that he had murdered the woman. The confession had been preceded by an inducement, and consequently the trial judge ruled it inadmissible in evidence. The Crown had submitted that, as in R. v. Wray, the "walk" and that portion of the confession related to it should be admitted in evidence. The trial judge had disagreed and held that this case was distinct from Wray and other similar cases** in that the scene, and the body was discovered by police without any assistance from the accused, and certainly not as a result of anything said to them. Crown counsel had argued that whatever the accused said during ."the walk" was a part of the inadmissible confession that ought to be admitted in evidence as it proved the accused's knowledge of the location of the scene and the position of the body. In other words, it confirmed the truth of what the accused said and it was therefore safe to accept as a fact "that the accused was with the girl at the very place where her body was found". * Regina v. Wray (1970) 4 c.c.c. 1) ** R. v. St. Lawrence [1949] 7 C.R. 464 and R. v. Hoase [1965] 2 c.c.c. 5 - 21 - Regina v. Coons The trial judge ruled that the same could be accomplished by allowing in evidence all of the actions and gestures by the accused when he led police to the known scene, rather than what he said. Before the B. C. Court of Appeal the defence argued that one's statements and gestures are inseparable. As an example a nod by the accused was allowed in evidence, a gesture which is the equivalent to a verbal "yes". As interesting as these arguments are, the Court of Appeal held that the actions and gestures should not have been admitted in evidence. The Wray case "has restricted the application of the principle to evidence of subsequent facts and so much of the confession as strictly relates to them". Conviction set aside. Written by John M. Post March 1981 New t~ial ordered. - 22 - Admissibility of Private Communication Undercover Agent in Cell Block Regina v. Grant, Biggins and Sharma County Court, Vancouver, B. c. 48 c.c.c. (2d) 504 A police officer assumed the role of a person charged with an offence and was placed in the lock-up with the accused. The officer, in his testimony at the trial of the accused, related conversation he overheard between the accused and others and direct conversation he had with the accused. Defence counsel objected, submitting that all the conversations adduced in evidence were intercepted private communication for which no authorization was obtained. In regards to the overheard conversations, it was argued that the definition of intercept "includes listen to". (s. 178.1 C.C. ). Respecting the direct conversation between that officer and the accused the defence encouraged the Court to hold that an "intended receiver" is the person who the originator of private communication intended to receive it. In this case the accused intended a person who was charged with an offence to receive his communication but not a police officer. The pretence by the police officer therefore did amount to an interception, defence counsel argued. The Court rejected both arguments. The conversations between the accused and other prisoners as well as that between the accused and the undercover officer were "not contaminated with an electromagnetic, acoustic, mechanical or other device". Furthermore, in relation to the direct conversation between the accused and the officer, the Court held that there was no interception in spite of the fac~ that "the originator did not appreciate who the receiver truly was". Communications admitted in evidence. Written by John M. Post March 1981 - 23 - RECENT COMPLAINT Regina v. Kulak 46 c.c.C.(ed) 30