Saskatchewan Judgments
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R. V. LUCAS
QB95049
Date of Judgment: February 14, 1995
Q.B. A.D. 1994
No. 7 J.C.S.
IN THE COURT OF QUEEN'S BENCH
JUDICIAL CENTRE OF SASKATOON
BETWEEN:
JOHN DAVID LUCAS and
JOHANNA ERNA LUCAS
APPLICANTS
(ACCUSED)
- and -
THE MINISTER OF JUSTICE FOR THE PROVINCE
OF SASKATCHEWAN for HER MAJESTY THE QUEEN
and THE MINISTER OF JUSTICE FOR THE DOMINION
OF CANADA for HER MAJESTY THE QUEEN
RESPONDENTS
R. Donlevy for the Crown
R. Parker for the Johanna Erna Lucas
John David Lucas on his own behalf
DECISION (No. 2) HRABINSKY J.
February 14, 1995
The Crown applies, pursuant to s. 657 of the
Criminal Code, to file as evidence a transcript of the
testimony-in-chief and cross-examination of the accused, John
David Lucas, given at his preliminary inquiry following the
provincial court judge's address to the accused pursuant to s.
541(1) of the Criminal Code.
Counsel for the accused, Johanna Erna Lucas, and Mr.
Lucas argue:
(1)that s. 657 does not permit the Crown to file the entire
transcript as evidence and that it can be used only if the
accused testifies at his trial to determine his credibility,
and
(2)that s. 13 of the Canadian Charter of Rights and Freedoms
precludes the Crown from filing the transcript as evidence at
his trial.
THE LAW
Pre Charter
In The King v. Walebek, 21 C.C.C. 130, (a case
decided April 10, 1913) a decision of the Supreme Court of
Saskatchewan, Brown J., writing for the Court, concluded that
a statement made by the accused on his preliminary inquiry
which was in the form prescribed by the Criminal Code could be
given in evidence without further proof. This was the law in
this jurisdiction as it stood pre Charter.
The evidence in the transcript from the preliminary
inquiry is not evidence against any one but the person who
testified. See: Regina v. Groulx and Nevers, (1953) 105
C.C.C. 380 at p. 387.
Sections 541(1) and 657 of the Criminal Code read as
follows:
541. (1) When the evidence of the witnesses called on the
part of the prosecution has been taken down and, where
required by this Part, has been read, the justice shall
address the accused as follows or to the like effect:
Having heard the evidence, do you wish to say anything in
answer to the charge or any other indictable offence, in
respect of the same transaction, founded on the facts that are
disclosed by the evidence? You are not bound to say anything,
but whatever you do say will be taken down in writing and may
be given in evidence against you at your trial. You must
clearly understand that you have nothing to hope from any
promise of favour and nothing to fear from any threat that may
have been held out to you to induce you to make any admission
or confession of guilt, but whatever you now say may be given
in evidence against you at your trial notwithstanding the
promise or threat.
...
657. A statement made by an accused under subsection 541(2)
and purporting to be signed by the justice before whom it was
made may be given in evidence against the accused at his trial
without proof of the signature of the justice, unless it is
proved that the justice by whom the statement purports to be
signed did not sign it.
Section 13 of the Canadian Charter of Rights and
Freedoms reads:
13. A witness who testifies in any proceedings has the right
not to have any incriminating evidence so given used to
incriminate that witness in any other proceedings, except in a
prosecution for perjury or for the giving of contradictory
evidence.
In Regina v. Yakeleya, (1985) 20 C.C.C. (3d) 193
(Ont. C.A.), the accused was convicted of rape. His principal
ground of appeal was that the trial judge erred by permitting
Crown counsel to read in the appellant's testimony from the
preliminary inquiry to the jury and by permitting Crown
counsel to cross-examine the appellant at the trial on the
evidence he gave at the preliminary inquiry when he testified
at trial in contravention of s. 13 of the Charter. The court
held at p. 195:
We are all of the view that the appellant's trial did not
constitute "other proceedings" in relation to the appellant's
preliminary hearing on the same charge. The preliminary
hearing and the trial on the same charge are part of the same
proceedings: see R. v. Sophonow (1984), 12 C.C.C. (3d) 272 at
pp. 277 and 332, 11 D.L.R. (4th) 24, 29 Man. R. (2d) 1.
The search for truth is not, of course, an absolute value in
a criminal trial and must sometimes yield to other values
recognized by the criminal justice system, such as, fairness,
openness and protection from oppressive questioning. It
would, however, be anomalous in our view, if an accused could
testify under oath as a witness at his preliminary hearing in
respect of the charge against him, in order to exculpate
himself from the charge and upon ascertaining that his first
story did not fit the facts, could then tell a different story
under oath at his trial, and rely on s. 13 of the Charter to
insulate his first story from exposure at his trial. This
would mean that the jury would be required to try an
artificial case rather than the real case. We cannot think
that s. 13 of the Charter in those circumstances precludes the
exposure to the jury of the accused's first story when he
takes the stand in his own defence at his trial.
We, of course, confine our decision to the precise question
presented by this appeal.
(emphasis
added)
In Dubois v. The Queen, (1986) 22 C.C.C. (3d) 513
(S.C.C.), a decision subsequent to the Yakeleya decision, the
majority of the court (McIntyre J. dissenting) held that the
use of the accused's testimony from his first trial on his
retrial was a violation of s. 13 of the Charter. The accused
did not testify at the second trial and was convicted. The
majority held that a retrial of the same offence falls within
the meaning of the words "any other proceedings" in s. 13 of
the Charter. The majority went on to say that to allow the
prosecution to use as part of its case, the accused's previous
testimony would allow the Crown to do indirectly what it
cannot do directly by virtue of s. 11(c) of the Charter and it
would permit an indirect violation of the right of the accused
to be presumed innocent until proven guilty as guaranteed by
s. 11(d) of the Charter.
Although s. 657 of the Criminal Code provides that a
statement made by an accused under s. 541(2) at his
preliminary inquiry may be given in evidence against him, one
must not lose sight of the fact that s. 52(1) of the
Constitution Act, 1982 provides:
52(1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions
of the Constitution is, to the extent of the inconsistency, of
no force or effect.
A retrial of the same offence falls within the
meaning of the words "any other proceedings" within s. 13. A
logical extension of this is the preliminary inquiry arising
from the same offence, which in my view, falls within the
meaning of "any other proceedings" under s. 13 of the Charter.
The use of an accused's testimony from a preliminary inquiry
on his trial for the purpose of incriminating him is a
violation of s. 13 of the Charter. To hold otherwise would
negate the right given to an accused under s. 541(1) to say
anything in answer to the charge at his preliminary inquiry.
At this stage of the trial it is not necessary to
determine whether the words "used to incriminate" under s. 13
would include resort to the previous testimony for the purpose
of assessing the credibility of the accused, John David Lucas,
if he should testify in his defence.
Accordingly, I find that to allow the filing of the
transcript of the evidence of the accused, John David Lucas,
from the preliminary inquiry at this stage of the trial would
be in violation of s. 13 of the Charter. The application is
denied.
If, however, the accused should testify in his
defence at this trial and if the matter of his credibility
should arise, this matter may then be revisited.
J.
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