Wright v. The Queen / McDermott v. The Queen / Feeley v. The Queen, [1963] SCR 539, 1963 CanLII 14 (SCC)

The second trial, the conspiracy under count 2 was tried as well as the substantive offences against W under counts 3, 4 and 5. The special plea of autrefois acquit and the defence of res judicata were raised not only against count 2 but also by W against the substantive offences. On the conspiracy charge, the trial judge held against the appellants on the plea of autrefois acquit, also that the defence of res judicata did not arise and declined to submit it to the jury. The jury convicted. However, on the three counts against W, the judge gave effect to the defence of res judicata and directed the jury to acquit. The appellants appealed against the conspiracy conviction and the Crown appealed against W’s acquittal. The Court of Appeal affirmed the conviction on count 2 and ordered a new trial for W on counts 3, 4 and 5. The appellants were granted leave to appeal to this Court on count 2 and W appealed as of right from the order setting aside his acquittal.

Held (Cartwright and Hall JJ. dissenting): The appeal against the conviction on count 2 should be dismissed as well as the appeal of W against a new trial on counts 3, 4 and 5.

Per Taschereau, Fauteux and Judson JJ.: The Court of appeal was right in rejecting the plea of autrefois acquit and in finding that the trial judge was correct in his ruling under s. 518 of the Criminal Code. The conspiracies charged in count 1 and in count 2 were not substantially identical. Count 1 involved not only the payment of money but required proof of the intent that the officer should interfere with the

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administration of justice. On the other hand, count 2 did not involve as an element the payment of money with the intent mentioned in s. 101(a) but charged the appellants with having conspired for an object which did not necessarily involve an intent that the officer should interfere with the administration of justice.

The trial judge was right in ruling that there was nothing to submit to the jury on the defence of res judicata in respect of count 2. An acquittal on a charge of conspiracy does not pronounce against every part of it. There was no issue on which it could be said that the Crown was estopped in the second trial. The two counts charged two conspiracies with different component elements, and it was impossible to say that the substantial basic facts common to both counts had been determined in favour of the appellants in the first trial.

As to counts 3, 4 and 5 relating to W, the Court of Appeal was right in ordering a new trial. The verdict at the first trial acquitted W of nothing more than his participation in the conspiracy charged on count 1 and did not of necessity involve a finding that he did not commit the substantive offence against s. 101(b) charged in those counts.

Per Cartwright and Hall JJ., dissenting: The plea of autrefois acquit was not available to the appellants at the trial on count 2. On their trial on count 1 the appellants could not have been convicted on count 2.

It is for the judge to decide as a matter of law whether the defence of res judicata has been made out, and, therefore, the trial judge was right in refusing to admit as an exhibit to go to the jury the complete record of the first trial.

The trial judge should have held that the defence of res judicata had been established at the trial on count 2. The Crown was now estopped from questioning that which was (in fact and law) the ratio of and fundamental to the decision in the first trial. Although the two counts differed in language and in their essential elements, in reality they dealt with the same offence. There was only one conspiracy—if there was a conspiracy. The conspirators were not interested in just getting information or in just having the officer give information unlawfully, they wanted the information so as to be forewarned of the impending raids on their gambling clubs. Everything that could be considered unlawful under count 2 was part and parcel of the agreement under count 1. Only one agreement was in evidence and it could not be severed arbitrarily at some point by the Crown so as to create the illusion of two offences from what was in fact only one.

The Crown was not estopped by W’s acquittal under count 1 from proceeding to try him for the substantive offences under counts 3, 4 and 5. McDonald v. The Queen, 1959 CanLII 25 (SCC), [1960] S.C.R. 186, referred to. However, his acquittal under count 1 negatived the essentially criminal element of these substantive offences—the intent that the officer should interfere with the administration of justice. It would not now be open to the jury to find that the money which W admitted having given was given with that intent. W’s acquittal should be restored.

APPEALS by the three appellants from a judgment of the Court of Appeal for Ontario^[1], affirming their conviction

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on a conspiracy charge and setting aside a verdict of acquittal in the case of W on charges of corruption. Appeals dismissed, Cartwright and Hall JJ. dissenting.

J.J. Robinette, Q.C., for the appellant, McDermott.

J. Sedgwick, Q.C., for the appellant, Feeley.

P. Hartt, Q.C., for the appellant, Wright.

R.P. Milligan, Q.C., for the respondent.

The judgment of Taschereau, Fauteux and Judson JJ. was delivered by

JUDSON J.:—The three appellants were tried before Spence J. and a jury and acquitted in May 1961 on the first count in an indictment, which was:

1. ROBERT J. WRIGHT, JOSEPH P. McDERMOTT and VINCENT B. FEELEY, between the first day of January, 1960, and the first day of July, 1960, in the Province of Ontario, did unlawfully agree and conspire together to commit an indictable offence under Section 101(b) of the Criminal Code of Canada by corruptly giving money to George Scott, a Peace Officer of the Ontario Provincial Police, with intent that the said George Scott should interfere with the administration of justice, contrary to the Criminal Code of Canada, Section 408(1) (d).