R. v. Skogman, (1984) 54 N.R. 34 (SCC)

• Judge: Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 26, 1984
• Jurisdiction: Canada (Federal)
• Citations: (1984), 54 N.R. 34 (SCC);54 NR 34;[1984] CarswellBC 822;[1984] 2 SCR 93;41 CR (3d) 1;1984 CanLII 22 (SCC);13 CCC (3d) 161;[1984] ACS no 32;9 Admin LR 153;11 DLR (4th) 161;12 WCB 349;[1984] SCJ No 32 (QL);JE 84-607;[1984] 5 WWR 52

R. v. Skogman (1984), 54 N.R. 34 (SCC)

MLB headnote and full text

R. v. Skogman

Indexed As: R. v. Skogman

Supreme Court of Canada

Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ.

July 26, 1984.

Summary:

After a preliminary inquiry the accused was committed for trial on a charge of conspiracy. The accused applied for an order of certiorari to quash the committal on the ground that the committing judge exceeded his jurisdiction in committing the accused where there was no evidence that the accused entered a conspiratorial agreement, an essential ingredient of the charge. The British Columbia Supreme Court in a judgment reported at 62 C.C.C.(2d) 385 allowed the application upon holding that there was no evidence of an agreement and that the committing judge lost jurisdiction in committing where there was no evidence on an essential ingredient. The Crown appealed, taking the position that there was no evidence of an agreement, but that certiorari did not lie to review a committal order on the ground that there is no evidence on an essential ingredient.

The British Columbia Court of Appeal in a judgment reported at [1982] 3 W.W.R. 367; 66 C.C.C.(2d) 14, allowed the appeal and restored the committal. The accused appealed.

The Supreme Court of Canada, per Estey, J., with Dickson, Lamer and Wilson, JJ., concurring, allowed the appeal and restored the order quashing the committal. The court held that committing for trial where there is no evidence on an essential ingredient of the charge is an error of jurisdiction reviewable on certiorari. However, the matter did not end there. The court held that there was some evidence on the essential ingredient, so the committal order should not have been quashed by the reviewing judge. But the Crown's position from the appeal to the Court of Appeal onward was that there was no evidence on the essential ingredient and that the committal order should stand in spite of the evidentiary gap, which was a novel ground and which would constitute a change in the law. This amounted to a reference on a point of law. In ruling that the Crown's proposition was wrong, the court was free to restore the quashing of the committal order and leave the Crown with its view in the exercise of its unassailable prosecutorial discretion that there was insufficient evidence to charge the accused. In effect, this was the same as if the Crown had elected not to appeal from the decision of the reviewing judge.

McIntyre, J., dissenting, Beetz and Chouinard, JJ., concurring, would have dismissed the appeal and held that certiorari did not lie to quash a committal order in the absence of a denial of natural justice. He was of the opinion that there was no denial of natural justice when, even in the absence of evidence on an essential ingredient, the committing judge has addressed his mind to the requirements of s. 475 of the Criminal Code and decided that there was sufficient evidence to commit.

Administrative Law - Topic 5001

Judicial review - Certiorari - Purpose - The Supreme Court of Canada generally discussed the development and current scope of certiorari as a tool for the judicial review of decisions of courts and tribunals - See paragraphs 3 to 4.

Administrative Law - Topic 5007

Judicial review - Certiorari - When available - Criminal matters - Preliminary inquiry - Committal order - The Supreme Court of Canada held that the committal of an accused for trial where there is no evidence on an essential ingredient of the charge is an error of jurisdiction reviewable on certiorari - See paragraphs 5 to 10.

Criminal Law - Topic 22

Prosecution of crime - Function of Crown prosecutor and Attorney General - An accused's committal for trial after a preliminary inquiry was set aside on certiorari on the ground that there was no evidence on an essential ingredient of the charge - The Crown appealed, agreeing that there was no evidence on the ingredient, but submitting that certiorari was unavailable to review the committal - The Supreme Court of Canada considered the effect of the Crown's evidentiary concession and held that in effect the Crown had decided in its unassailable prosecutorial discretion that there was insufficient evidence to commit the accused for trial - Accordingly, because the Crown's proposition that certiorari was unavailable was wrong, the court held that the situation was the same as if the Crown had decided not to appeal from the quashing of the committal order - See paragraphs 11 to 20.

Criminal Law - Topic 3500

Preliminary inquiry - Purpose of - The Supreme Court of Canada discussed the purpose of a preliminary inquiry and stated that the primary purpose is to ascertain whether there is sufficient evidence to put the accused on trial, but that the secondary purpose is to provide a discovery procedure for the accused - See paragraph 10.

Criminal Law - Topic 3604

Preliminary inquiry - Adjudication and review - Judicial review of committal order - General - The Supreme Court of Canada held that the committal of an accused for trial where there is no evidence on an essential ingredient of the charge is an error of jurisdiction reviewable on certiorari - See paragraphs 5 to 10.

Evidence - Topic 9

Question of law - What constitutes - The Supreme Court of Canada held that whether there is no evidence is a question of law and that an erroneous finding that there is no evidence constitutes reversible error on appeal - See paragraph 15.

Evidence - Topic 2101

Admissions - Judicial - General - The Supreme Court of Canada held an appeal court is not bound by a party's concession that there is insufficient evidence on a point and that the court must still be satisfied that the evidentiary test has been met - The court held that neither party, separately or jointly, can alter the record or convert the appeal into a request for an advisory opinion - See paragraph 11.

Evidence - Topic 2105

Admissions - Judicial - By Crown prosecutor - After a committal for trial was quashed on the ground that there was not evidence on an essential ingredient of the charge, the Crown on appeal conceded that there was no evidence on the ingredient, but submitted that certiorari did not lie in any event - The Supreme Court of Canada held that the court on appeal was not bound to accept the Crown's view of the evidence and must independently assess the record to determine whether there was any evidence to support the committal - However, where the Crown was wrong in its submission that certiorari did not lie, the Crown was left with its view in the exercise of its unassailable prosecutorial discretion that there was insufficient evidence to commit and was in effect left in the position of not having appealed the setting aside of the committal order - See paragraphs 11 to 20.

Cases Noticed:

R. v. Martin and Simard, [1978] 2 S.C.R. 511; 20 N.R. 373, appld. [paras. 2, 5].

R. v. Kopan (1975), 3 B.C.L.R. 102, refd to. [paras. 2, 28].

Hodgkinson v. Fernie and another (1857), 3 C.R. (N.S.) 189, refd to. [para. 3].

In the Matter of an Arbitration between King and Duveen and others, [1913] 2 K.B. 32, refd to. [para. 3].

Service Employees' International Union v. Nipawin District Staff Nurses Assoc'n, [1975] 1 S.C.R. 382, refd to. [para. 3].

C.U.P.E. v. N.B. Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R. (3d) 417; 79 C.L.L.C. 14,209, refd to. [para. 3].

Douglas Aircraft Company of Canada Ltd. v. McConnell et al., [1980] 1 S.C.R. 245; 29 N.R. 109, refd to. [para. 4].

Patterson v. R., [1970] S.C.R. 409, appld. [paras. 5, 28].

R. v. Botting, [1966] 3 C.C.C. 373; [1966] 2 O.R. 121; 56 D.L.R.(2d) 25, refd to. [paras. 5, 32].

R. v. Norgren, [1976] 3 W.W.R. 196 (B.C.C.A.); 27 C.C.C.(2d) 488; 31 C.R.N.S. 247, refd to. [paras. 5, 28].

R. v. Nat Bell Liquors Ltd., [1922] 2 A.C. 128, consd. [para. 5].

Martin, Simard et al. and R., Re (1977), 20 O.R.(2d) 455, affd. [1978] 2 S.C.R. 511; 20 N.R. 373, consd. [para. 5].

Martin, Simard et al. and R., Re (1977), 20 O.R.(2d) 455, refd to. [para. 5].

R. v. Forsythe, [1980] 2 S.C.R. 268; 32 N.R. 520, appld. [paras. 6, 28].

United States of America, The v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, consd. [para. 7].

Stillo v. R. (1981), 22 C.R.(3d) 224 (Ont. C.A.), appld. [paras. 8, 9, 29].

Guttman and R., Re (1981), 64 C.C.C.(2d) 342 (Que. S.C.), appld. [para. 9].

Poirier and R., Re (1981), 62 C.C.C.(2d) 452 (Que. C.A.), appld. [paras. 9, 29].

Leroux and R., Re (1978), 43 C.C.C.(2d) 398 (Que. S.C.), appld. [paras. 9, 29].

Robar and R., Re (1978), 27 N.S.R.(2d) 459; 41 A.P.R. 459; 42 C.C.C.(2d) 133 (N.S.C.A.), appld. [paras. 9, 29].

Mackie and R., Re (1978), 43 C.C.C.(2d) 269 (Ont. H.C.), appld. [paras. 9, 29].

City of Toronto v. Polai (1970), 8 D.L.R.(3d) 689, consd. [para. 13].

Martin, Simard and Desjardins and R., Re (1977), 41 C.C.C.(2d) 308 (Ont. C.A.), affirmed [1978] 2 S.C.R. 511; 20 N.R. 373, refd to. [para. 28].

Attorney General of Quebec v. Cohen, [1979] 2 S.C.R. 305; 27 N.R. 344, refd to. [para. 28].

R. v. Boylan (1979), 8 C.R.(3d) 36 (Sask. C.A.), refd to. [para. 29].

R. v. Harrigan and R. (1977), 17 N.B.R.(2d) 478; 23 A.P.R. 478, refd to. [para. 29].

Chromium Mining and Smelting Corp. Ltd. v. Fortin, [1968] B.R. 536, refd to. [para. 29].

R. v. Gibbon, Bell and Faryon (1965), 45 C.R. 314 (Man. Q.B.), refd to. [para. 29].

R. v. Nat Bell Liquors, Limited, [1922] 2 A.C. 128, refd to. [para. 30].

Stewart et al. and R. (No. 2), Re (1977), 35 C.C.C.(2d) 281, refd to. [para. 32].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 475 [paras. 5, 38].

Authors and Works Noticed:

Devlin, Patrick, The Criminal Prosecution in England (1960), pp. 9-10 [para. 10].

Law Reform Commission of Canada Study Report, Discovery in Criminal Cases (1974), pp. 8-9 [para. 10].

Martin, G. Arthur, Preliminary Hearing in Canada, [1955] Special Lectures of Law Society of Upper Canada, p. 1 [para. 10].

Counsel:

B.A. Crane, Q.C., and Christopher Brennan, for the appellant;

A.M. Stewart, for the respondent.

This case was heard on November 22, 1982, at Ottawa, Ontario, before Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson, JJ., of the Supreme Court of Canada.

On July 26, 1984, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

Estey, J. - see paragraphs 1 to 20;

McIntyre, J., dissenting - see paragraphs 21 to 39.

Dickson, Lamer and Wilson, JJ., concurred with Estey, J.

Beetz and Chouinard, JJ., concurred with McIntyre, J.