Supreme Court Judgments

Supreme Court of Canada

Mulvihill v. The King, (1914) 49 S.C.R. 587

Date: 1914-03-25

Jeremiah Mulvihill Appellant;

and

His Majesty the King Respondent.

1914: March 23; 1914: March 25.

Present: Idington, Duff, Anglin and Brodeur JJ.

On Appeal from the Court of Appeal for British Columbia.

Criminal law—Stated case—Extension of time—Notice of appeal—Criminal Code, ss. 901, 1014, 1021, 1022, 1024.

Where, on an application under section 901 of the Criminal Code, the court, in the exercise of judicial discretion, has refused to allow a postponement of the trial of the person indicted, there can be no review of the decision by an appellate court and the question presented does not constitute a question of law upon which there may be a reserved case under the provisions of section 1014 of the Criminal Code. Judgment appealed from (5 W.W.R. 1229; 26 West. L.R. 955) affirmed. The Queen v. Charlesworth (1 B. & S. 460); Winsor v. The Queen (L.R. 1Q.B. 390); Rex v. Lewis (78 L.J.K.B. 722); Rex v. Blyth (19 Ont. L.R. 386); Reg. v. Johnson (2 C. & K. 354); and Reg. v. Slavin (17 U.C.C.P. 205) referred to.

APPLICATION, on behalf of the appellant, for extension of the time for giving notice, as required by section 1024 of the Criminal Code, of an appeal from the judgment of the Court of Appeal for British Columbia[1], whereby the conviction of the appellant upon an indictment for murder was sustained, McPhillips J. dissenting.

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The circumstances in which the application was made are stated in the judgments now reported.

Coté appeared in support of the application.

J. A. Ritchie contra.

IDINGTON J.—Unless we are prepared to declare that it is arguable that it may be held to be law that a prisoner has a legal right to insist upon postponement of his trial in any case where some evidence to be adduced against him has been brought to the notice of his counsel for the first time on the day of the trial, this motion must be refused.

The proposed appeal here is based upon the dissenting opinion of Mr. Justice McPhillips, which in turn rests upon facts which imply nothing more than I have stated. A good many more facts are set forth therein, but none adding anything to the strength of the alleged legal right, or interfering in any way with the discretion assigned the learned trial judge in such case.

It would not be in the interests of the administration of justice to grant an indulgence such as now asked to permit of the presentation of such a case.

It may in some cases where like indulgence may be asked not be so easy as here to grasp all that really is involved in the proposed appeal.

The motion must be refused.

DUFF J.—After full consideration of the circumstances I think the application ought not to be granted. The question which counsel for the accused desires to raise upon appeal to this court is the ques-

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tion whether the accused was entitled to a traverse of the trial in the circumstances mentioned in the reserved case. My opinion is that, in this respect, the case does not present a question of law within section 1014 of the Criminal Code. I have reached this conclusion after the most anxious consideration of the judgment given in the court below in which the considerations in favour of the view that a question of law is stated are set forth with great fullness and ability. I can only say that, having come to a very clear conclusion that the appellant's appeal on this point would be hopeless, and that being of the opinion of my learned brothers, I think no possible object could be served by granting the application.

The right to invoke the jurisdiction of the courts by way of appeal from a conviction after a trial at the assizes given by section 1014 of the Criminal Code is a strictly limited one. The Code does not contemplate that an accused person should be entitled as of right to claim redress by way of appeal in every case in which it alleged that the trial judge has made a mistake as, for instance, in respect of a question which is left to his discretion; the appeal given is by way of case stated and the case must present some question of law. In respect of cases not falling within section 1014 or section 1021 a right is given by section 1022 to apply to the Minister of Justice who has power to order a new trial.

ANGLIN J.—The defendant applies to extend the time for service of notice of appeal to this court under section 1024 of the Criminal Code. The judgment of

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the Court of Appeal for British Columbia affirming his conviction for murder was pronounced on the 27th of January, 1914. He had the right to give notice of appeal within the fifteen days thereafter which section 1024 allows. But, having permitted that time to expire without giving notice, he now asks indulgence on the ground that he had not until quite recently the means to launch or prosecute the appeal which he desires to take. Before granting an extension of time to serve the notice it is our duty to satisfy ourselves that the proposed appeal involves a question of law which could be reserved under section 1014 of the Code and would properly form the subject of an appeal to this court.

The learned trial judge reserved three questions for the opinion of the Court of Appeal:—

(1) Whether the prisoner was entitled to a traverse of the trial to the Spring Assizes.

(2) Whether the trial judge was right in permitting counsel for the Crown to ask the accused when he was giving evidence on his own behalf if he had been charged with or had committed certain offences.

(3) Whether the trial judge was right in permitting the accused to be cross-examined on his alleged testimony at the inquest in the absence of the original depositions.

The Court of Appeal unanimously answered the second and third questions in the affirmative; and it has been decided in McIntosh v. The Queen[2], that the right of appeal to this court is confined to questions upon which there has been dissent in the provincial court of appeal. The defendant's right of appeal

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is, therefore, restricted to the first question. Three of the five judges of the provincial court of appeal held that this was not a question of law which might be reserved under section 1014, and four of them that, if it were, it should be answered in the negative. Mr. Justice McPhillips dissented from the opinion of the majority on both grounds[3].

Section 901 of the Criminal Code declares that

no person prosecuted shall be entitled as of right to traverse or postpone the trial of any indictment preferred against him in any court.

By sub-section 2, power is conferred on every trial court, in its discretion, to grant an adjournment of trial to any prisoner.

The grand jury indicted the defendant, on the 13th of October, 1913[4]. On that day he was assigned counsel, who was informed that the Crown proposed to call two witnesses whose names were on the indictment, but who had not given evidence at the preliminary investigation. A copy of the memorandum purporting to state the substance of the testimony which these witnesses were expected to give was also furnished him. There is no doubt that this evidence was of vital importance and disclosed facts not stated at the preliminary investigation. Counsel for the prisoner moved to traverse the trial in order to have an opportunity to

inquire into the antecedents (of these witnesses) and the reason their evidence had not been given at the preliminary investigation and was being now given,

and on other general grounds. The Crown opposed postponement because of the expense involved and the great danger of loss of material evidence. The court

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offered to transfer the case to the Vernon Assizes to be held a fortnight later. Counsel for the defence declined to accept this offer, saying it would be useless to him, and the trial proceeded, on the 16th October, resulting in the defendant being convicted of murder.

While it is possible to conceive of cases in which it would be clear that there had not been any exercise of judicial discretion in granting or refusing postponement of trial, and in such cases there might be error of law which would be properly reviewable, where, in what was clearly an exercise of his discretion, the trial judge has refused a postponement because he was "of the opinion" that further time should not be allowed (sec. 901, sub-sec. 2 (Crim. Code)), I am satisfied that the propriety of that exercise of discretion is not reviewable by an appellate court and is not properly the subject of a reserved case under section 1014. The principle which underlies the decisions in The Queen V. Charlesworth[5], and Winsor v. The Queen[6], approved in Rex v. Lewis[7], applies. I am, with respect, unable to appreciate the distinction which it is suggested exists between the discretion conferred where "the matter rests in the opinion of the court"[8], and this case where the court is empowered to postpone, if it "is of the opinion" that it should do so.

If the propriety of the refusal of the postponement is a question of law (Rex v. Blyth[9], pp. 389, 392, re-reviewable under section 1014 et seq. of the Criminal Code, I agree with Martin J.A. and Irving J.A. that, under the circumstances of the present case, interference by an appellate court would be out of the question. Reg. v. Johnson[10]; Reg. v. Slavin[11].

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I am, for these reasons, of the opinion that the extension of time asked for must be refused.

BRODEUR J.—By the provisions of article 1024 of the Criminal Code there is an appeal to this court by any person convicted of any indictable offence if the court of appeal has not been unanimous. But notice of appeal should be served on the Attorney-General within fifteen days after the judgment appealed from has been rendered. However, this court or a judge thereof may extend the time within which the notice of appeal should be given.

The object of the present application is to obtain that extension.

The applicant has been convicted of murder in the month of October last. He was, by the sentence of the court, to be executed on the 29th of December last. On the 23rd of December, just a few days before the date fixed for the execution, his counsel applied for a reserved case and a reprieve was granted until the 30th day of January. The Court of Appeal rendered its judgment on the 27th of January last. The execution of sentence was postponed until the 4th of April, 1914.

Instead of giving notice of appeal to this court, as required by law, the applicant waited until the 17th of March to apply for an order extending the time for serving upon the Attorney—General of the province the notice of appeal.

I have gone into the merits of the case in order to satisfy myself as to whether the case presented some serious doubts, and I failed to see any good reason why we should grant the delay asked for.

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The only point of importance which was reserved by the trial judge and about which there was a dissenting opinion in the Court of Appeal was whether the trial judge had exercised a proper discretion in refusing to postpone the trial to the Spring Assizes.

It was not established that the ends of justice would have been served by postponing the trial to the Spring Assizes. On the contrary, it was to be feared that the witnesses could not be procured at the future time at which it was prayed to put off the trial.

The witnesses about whom the prisoner wanted to have some information were well known to him, had been in relation with him for some time, and he knew of the antecedents of those witnesses.

It has been stated in Rex v. Jones, in 1806[12], that it is the constant practice of the Old Bailey not to put off trials for the absence of witnesses to character only.

For those reasons the present application now made to this court should be dismissed.

Application refused.