R. v. Côté and Vézina, (1986) 64 N.R. 93 (SCC)

• Judge: Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 30, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 64 N.R. 93 (SCC);[1986] 1 SCR 2;49 CR (3d) 351;23 CCC (3d) 481;64 NR 93;[1986] SCJ No 2 (QL);JE 86-197;1986 CanLII 93 (SCC);[1986] CarswellQue 4;25 DLR (4th) 82

R. v. Côté (1986), 64 N.R. 93 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Gerard Vezina v. R.; Donald Côté v. R.; R. v. Donald Côté and Gerard Vézina

(Nos. 17376, 17377, 17378)

Indexed As: R. v. Côté and Vézina

Supreme Court of Canada

Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ.

January 30, 1986.

Summary:

Côté and Vézina were charged with illegal possession of stolen bonds, attempting to defraud and conspiring to defraud the Bank of Montreal. At the close of the Crown's case the accused moved for directed verdicts of acquittal on the ground that there was no evidence of any crime against the Bank of Montreal. The Crown then moved to have the reference in the indictment to the Bank of Montreal deleted. The trial judge denied the Crown's motion, but allowed the defence motion and directed verdicts of acquittal on the latter two charges. The jury acquitted the accused on the two counts as directed and convicted them of unlawful possession of the stolen bonds. The Crown appealed the directed verdict, arguing, inter alia, that it should have been allowed to amend the charge. The accused also appealed their conviction, alleging that their right to be present during the whole of their trial (Criminal Code, s. 577) was violated when the judge examined two jurors in the absence of the accused.

The Quebec Court of Appeal, in a decision reported (1982), 3 C.C.C.(3d) 557, allowed the Crown's appeal, set aside the acquittals and ordered a new trial on the counts of attempted fraud and conspiracy. The Court of Appeal, in a decision reported [1982] C.A. 419; 3 C.C.C.(3d) 155; 32 C.R.(3d) 47, also allowed the conviction appeal of the accused and ordered a new trial. The Crown appealed the setting aside of the convictions and the accused appealed the reversals of their acquittals.

The Supreme Court of Canada dismissed the appeals and affirmed the orders for new trials.

Criminal Law - Topic 127

Rights of accused - Right to be present at trial - The Criminal Code, s. 577, provided that an accused shall be present during the whole of his trial - The Supreme Court of Canada held that the accused's right to be present at his trial meant that he had the right to have direct knowledge of anything that transpired in the course of his trial which could involve his vital interests - The court then referred to the types of proceedings which may be vital to the accused's interests - See paragraphs 9 to 15.

Criminal Law - Topic 127

Rights of accused - Right to be present at trial - The Supreme Court of Canada held that the accused's right to be present at his trial (Criminal Code, s. 577) means that he has the right to have direct knowledge of anything that transpires in the course of his trial that could involve his vital interests - The court held that where two jurors informed the trial judge that they suspected the integrity of other jurors, the issue concerned the vital interests of the accused and therefore under s. 577 any investigation by the judge into the matter must be conducted in the presence of the accused - See paragraphs 3 to 21.

Criminal Law - Topic 127

Rights of accused - Right to be present at trial - The Criminal Code, s. 577, provided that an accused shall be present during the whole of his trial - The Supreme Court of Canada in Meunier v. R., [1966] S.C.R. 399, held that where s. 577 was violated, s. 613(1)(b)(iii) of the Criminal Code was unavailable (dismissal of appeal where no miscarriage of justice, notwithstanding error) - The Supreme Court of Canada referred briefly to this rule and the comments on the rule by the Court of Appeal in this case - See paragraph 22.

Criminal Law - Topic 2647

Conspiracies - Elements of offence - Fraud - The Supreme Court of Canada reviewed a set of facts to determine whether there was evidence to go to the jury about whether the two accused conspired or attempted to defraud a bank - See paragraphs 38 to 44.

Criminal Law - Topic 2675

Conspiracies - Content of indictment - Fraud - In charging the accused with conspiracy to commit fraud and attempted fraud the Crown named a particular bank as the victim - The Supreme Court of Canada agreed that specifying the particular bank in the indictment was unnecessary and surplusage - See paragraph 45.

Criminal Law - Topic 4326

Procedure - Jury - Examination of juror by trial judge - Two jurors informed a judge that they suspected the integrity of two other jurors - The judge examined the jurors privately in absence of the accused or counsel, decided that there was no foundation for their suspicions and allowed the trial to proceed - The Supreme Court of Canada held that the accused should have been present during the examination because his vital interests were in issue - The judge's conduct was therefore in violation of s. 577 of the Code which required the accused to be present during the whole of his trial - See paragraphs 1 to 21.

Criminal Law - Topic 4723

Procedure - Indictments - Amendment - In charging the accused with conspiracy to commit fraud and attempted fraud the Crown named a particular bank as the victim - At the close of the Crown's case the accused moved for directed verdicts of acquittal, arguing that no crime was committed against the named bank - The Crown then moved to amend the indictment to delete reference to the bank - The Supreme Court of Canada affirmed that the trial judge erred in not allowing the Crown's motion to amend where the amendment would not prejudice the accused - See paragraphs 45 to 70.

Criminal Law - Topic 4730

Procedure - Indictments - Form and content - General - The Supreme Court of Canada discussed the drafting of indictments in light of ss. 510(3) and 529 of the Criminal Code and the "surplusage" rule - The Supreme Court of Canada stated that these rules are all subject to the proviso that the accused not be prejudiced in their defence - See paragraphs 45 to 63.

Criminal Law - Topic 5049

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - Where accused denied right to be present during whole of trial (Criminal Code, s. 577) - S. 577 provided that an accused shall be present during the whole of his trial - The Supreme Court of Canada in Meunier v. R., [1966] S.C.R. 399, held that where s. 577 was violated, s. 613(1)(b)(iii) of the Criminal Code was unavailable (dismissal of appeal where no miscarriage of justice, notwithstanding error) - The Supreme Court of Canada referred briefly to this rule and the comments on the rule by the Court of Appeal in this case - See paragraph 22.

Cases Noticed:

R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C.(2d) 510, appld. [para. 8].

R. v. Grimba (1980), 56 C.C.C.(2d) 570, consd. [para. 8].

Meunier v. R. (1965), 48 C.R. 14, consd. [para. 10].

R. v. Mitchell, [1964] S.C.R. 471, refd to. [para. 22].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, refd to. [para. 22].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 22].

R. v. Fenton (1984), 11 C.C.C.(3d) 109, refd to. [para. 22].

R. v. Olan, [1978] 2 S.C.R. 1175; 21 N.R. 504, consd. [para. 29].

R. v. Libman, [1985] 2 S.C.R. 178; 62 N.R. 161; 12 O.A.C. 33, refd to. [para. 35].

R. v. Wines, 37 Cr. App. Rep. 197, agreed with [para. 43].

Adcock v. Archibald, [1925] J.C. 58, refd to. [para. 44].

R. v. Adduono, [1940] O.R. 184; 73 C.C.C. 152, refd to. [para. 54].

Brodie v. R., [1936] S.C.R. 188, refd to. [para. 55].

R. v. Elliott, [1976] 4 W.W.R. 285, refd to. [para. 57].

R. v. Little and Wolski (1973), 14 C.C.C.(2d) 531, refd to. [para. 59].

R. v. Greene (1962), 133 C.C.C. 294, refd to. [para. 61].

R. v. MacLean and MacLean (1981), 58 C.C.C.(2d) 318 (Ont. C.A.), refd to. [para. 62].

R. v. Simard (1980), 43 N.S.R.(2d) 696; 81 A.P.R. 696; 55 C.C.C.(2d) 306 (N.S.C.A.), refd to. [para. 62].

R. v. O'Connor et al., [1963] 1 C.C. C. 229 (P.E.I.C.A.), refd to. [para. 62].

R. v. Coote (1903), 8 C.C.C. 199 (B.C.S.C.), refd to. [para. 63].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 338 [para. 43]; sect. 421(b), 423(1) [para. 23]; sect. 510(1) [para. 56]; sect. 510(3) [para. 48]; sect. 512(c), sect. 515 [para. 46]; sect. 529(4) [para. 52]; sect. 577 [para. 9]; sect. 613(1)(b)(iii) [para. 22].

Authors and Works Noticed:

Ewaschuk, Criminal Pleadings and Practice in Canada (1983), pp. 222, 223 [para. 47].

Gordon, G.H., Criminal Law of Scotland (2nd Ed. 1978), p. 603 [para. 44].

Holdsworth, History of English Law (5th Ed. 1942), p. 618 [para. 50].

Radzinowicz, History of English Criminal Law (1948), pp. 98 [para. 49]; 103 [para. 51].

Stephen, History of the Criminal Law of England (1883), pp. 281 [para. 49]; 284 [para. 50]; 285 [para. 51].

Counsel:

Robert Dore, for Gerard Vézina;

Michel Proulx, for Donald Côté;

Yves Berthiaume, for the Crown.

This appeal was heard on December 12, 1984, before Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ., of the Supreme Court of Canada.

The following decision of the Supreme Court of Canada was delivered by Lamer, J., on January 30, 1986: