Green and Constantine v. The King

KERWIN J.-Leave to appeal from a decision of the Court of Appeal for Ontario was granted on the ground that it conflicted with the judgment of the Supreme Court of Nova Scotia en banco in The Queen v. McBerny (2). That case decided that where a judge tries a charge without a jury under the Speedy Trials clauses of the Criminal Code, it is not competent for him to postpone his decision on a first charge against an accused until he has heard the evidence on several other charges against the same party and to then decide the question of guilt in all. In the judgment appealed from, the matter is treated as one for consideration in each particular case and not as a rule of law of general application.

(1) [19471 O.R. 264; [19471 3 DL.R. 32.

Of the other decision referred to, Hamilton v. Walker was distinguished in the subsequent case of Regina v. Fry where it appeared from an affidavit filed on behalf of the justices that in adjudicating in each of several cases tried before them they applied to that case the evidence J. given in reference to it and no other, and that the evidence given in the second case in no way influenced their decision on the first. The decision of the Court of Appeal for Ontario in Rex v. Bullock (3) followed the Fry case. The British Columbia Court of Appeal in The King v. Iman Din (4), divided equally on the question.

Nothing should detract from the. salutary rule that everything should be done to avoid even the appearance of prejudice in the mind of the convicting judge against the prisoner arising out of facts developed in a later prosecution, and, therefore, the ordinary practice should be followed that one case should be disposed of, so far as the verdict is concerned, before entering upon the consideration of another. I do not attach any importance to section 838 of the Code by which the judge may adjourn the hearing.

Irrespective of that section, it should not be laid down that a judge must acquit or convict in all cases before proceeding with the trial of another charge against the same accused, or as in the case before us, announce his decision on one count against two accused before proceeding with the trial of one of them on other counts. There may be cases where it is necessary to do so because an accused might, on the subsequent trial, plead autrefois acquit or autrefois convict, and in no case may a judge convict a person on one charge by reason of evidence heard on the trial of another charge but, if it appears that these rules have not been infringed, then the convictions should not be set aside.

It is not without importance in disposing of the matter to bear in mind that the joinder in a single charge sheet of several counts on which an accused has been committed for trial on a single information is permitted:

The King v. Deur (5) and that by section 857 (2), which appears in Part XIX