R. v. Primeau (D.J.), (1995) 180 N.R. 101 (SCC)

• Judge: Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 13, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 180 N.R. 101 (SCC);JE 95-846;[1995] SCJ No 33 (QL);97 CCC (3d) 1;131 Sask R 198;27 CRR (2d) 242;95 WAC 198;180 NR 101;[1995] 2 SCR 60;38 CR (4th) 189;26 WCB (2d) 538;1995 CanLII 143 (SCC)

R. v. Primeau (D.J.) (1995), 180 N.R. 101 (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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Dorne James Primeau (appellant) v. Her Majesty The Queen (respondent)

(23613)

Indexed As: R. v. Primeau (D.J.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé,

Sopinka, Gonthier, Cory, McLachlin,

Iacobucci and Major, JJ.

April 13, 1995.

Summary:

Primeau, who was charged with murder, was subpoenaed by a Provincial Court judge to testify at the preliminary inquiry of a separately charged co-accused. Primeau applied for relief under s. 24(1) of the Char­ter to prevent him from being compelled to testify at the preliminary inquiry and for prohibition to prevent the Provincial Court judge from requiring him to testify at the preliminary inquiry.

The Saskatchewan Court of Queen's Bench, in a decision reported at 108 Sask.R. 193, granted the application, holding that to compel Primeau to testify would violate his s. 7 Charter rights. The Crown appealed.

The Saskatchewan Court of Appeal, in a decision reported at 113 Sask.R. 4; 52 W.A.C. 4, allowed the appeal. Primeau appealed.

The Supreme Court of Canada dismissed the appeal.

Civil Rights - Topic 3160

Trials - Due process - Fundamental jus­tice and fair hearings - Criminal proceed­ings - Right to remain silent (Charter, s. 7) - The Supreme Court of Canada held that an accused charged with an offence was compellable as a witness at the pre­liminary inquiry of a co-accused sepa­rately charged with the same offence, where the predominant purpose of com­pelling the testimony could not be regarded as a form of pretrial interro­gation and it was not otherwise objection­able - The court held that compelling the accused to testify would not violate s. 7 of the Charter because at subsequent pro­ceedings against him, he would be entitled to the protections against self-incrimi­nation described in R. v. R.J.S. (S.C.C.) and British Columbia Securities Commis­sion v. Branch and Levitt (S.C.C.) - See para­graphs 18 to 20 and 33 to 34.

Civil Rights - Topic 4305.1

Protection against self-incrimination - Compellability of separately tried co-accused - [See Civil Rights - Topic 3160 ].

Courts - Topic 3026

Supreme Court of Canada - Jurisdiction - General - [See Criminal Law - Topic 5413 ].

Criminal Law - Topic 5413

Evidence and witnesses - Witnesses - Subpoena or summons - Review of order for issue of - An accused was subpoenaed by a Provincial Court judge to testify at the preliminary inquiry of a separately charged co-accused - The accused applied under s. 24(1) of the Charter for an order that he not be compelled to testify at the preliminary inquiry and for prohibition - The application was granted - The Court of Appeal allowed a Crown appeal - On appeal, the Supreme Court of Canada held that the proper procedure for challenging the subpoena was a certiorari application to a superior court judge (C.B.C. v. Dage­nais (S.C.C.)) - Because the accused was without the benefit of Dagenais, and the remedy he sought was substantially similar to the type that could be sought through certiorari after Dagenais, the proceedings were treated as tantamount to a Dagenais certiorari application and the Supreme Court had jurisdiction - See paragraphs 10 to 17 and 24 to 32.

Criminal Law - Topic 5475

Evidence and witnesses - Joint or separate trials - Competence and compellability of co-accused - [See Civil Rights - Topic 3160 ].

Cases Noticed:

R. v. R.J.S. (1995), 177 N.R. 81; 78 O.A.C. 161 (S.C.C.), appld. [para. 1].

Praisoody v. R. (1990), 1 O.R.(3d) 606; 61 C.C.C.(3d) 404 (Gen. Div.), refd to. [para. 6].

Perreault v. Thivierge (Juge) (1992), 17 C.R.R.(2d) 361 (Que. C.A.), refd to. [para. 7].

R. v. R.J.S. (1993), 61 O.A.C. 395; 80 C.C.C.(3d) 397 (C.A.), refd to. [para. 7].

R. v. Jobin et al. (1995), 180 N.R. 303 (S.C.C.), appld. [para. 9].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, appld. [para. 10].

British Columbia Securities Commission v. Branch and Levitt (1995), 180 N.R. 241 (S.C.C.), appld. [para. 18].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 33 C.C.C.(3d) 289; 57 C.R.(3d) 289; 39 D.L.R.(4th) 481, refd to. [para. 28].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; [1985] 6 W.W.R. 127; 21 C.C.C.(3d) 7; 20 D.L.R.(4th) 651; 47 C.R.(3d) 193, refd to. [para. 29].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481; 29 D.L.R.(4th) 161; 21 C.R.R. 76, refd to. [para. 30].

R. v. Johnson et al., [1994] 3 S.C.R. 965; 174 N.R. 321; 76 O.A.C. 241, refd to. [para. 30].

R. v. Lada - see R. v. Johnson et al.

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 5 [para. 9].

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(c), sect. 13 [para. 6]; sect. 24(1) [para. 3].

Criminal Code, R.S.C. 1985, c. C-46, sect. 784(1) [para. 5].

Supreme Court Act, R.S.C. 1985, c. S-26, sect. 40(1) [para. 14].

Authors and Works Noticed:

Ratushny, E., Role of the Accused in the Criminal Process, in G.A. Beaudoin and E. Ratushny, Canadian Charter of Rights and Freedoms (2nd Ed. 1989), pp. 483-484 [para. 6].

Warren, Earl, The Law and the Future, in Fortune (November 1955), p. 224 [para. 30].

Counsel:

Hugh M. Harradence, for the appellant;

Graeme G. Mitchell, for the respondent.

Solicitors of Record:

Harradence Longworth Logue & Harradence, Prince Albert, Sas­katchewan, for the appellant;

W. Brent Cotter, Regina, Saskatchewan, for the respondent.

This appeal was heard on February 28 and March 1, 1994, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, and Major, JJ., of the Supreme Court of Canada.

The judgment of the court was delivered in both official languages on April 13, 1995, and the following opinions were filed:

Sopinka and Iacobucci, JJ. (Lamer, C.J.C., La Forest, Gonthier, Cory, McLachlin, Major, JJ., concurring) - see paragraphs 1 to 20;

L'Heureux-Dubé, J. - see paragraphs 21 to 35.