2003 NBQB 25 Court
File No.: S/M/105/02
IN THE
COURT OF QUEEN’S BENCH OF NEW BRUNSWICK
TRIAL
DIVISION
JUDICIAL
DISTRICT OF SAINT JOHN
IN THE MATTER OF an Application to quash a subpoena
directed to the Honourable Martin Cauchon, P.C., M.P., Minister of Justice and
Attorney General of Canada,
dated November 28, 2002
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
- and -
STEPHEN CHARLES OSBORNE
Respondent
BEFORE: Justice
J. Roger McIntyre
HEARING
HELD: Saint John
DATE OF
HEARING: December 30th, 2002
DATE OF
DECISION: December 30th, 2002
COUNSEL:
Martin C. Ward, Esq. and Wayne R. Chapman, Q.C.,
counsel for the applicant
Respondent per se
D E C I S I O N
MCINTYRE,
J. (Orally)
The accused is
charged with three counts of defamatory libel, contrary to section 301 of the Criminal
Code of Canada. The charges allege that he defamed a judge of the Court of
Queen’s Bench of New Brunswick. The accused elected trial by judge and
jury. He is pleading the statutory defence of justification as contained in
section 611 of the Criminal Code. The accused has no counsel, and the
trial is set to begin on January 6, 2003.
In preparation for his trial, the accused obtained from the clerk of the
court, a number of subpoenas which were served on the following witnesses: The
Right Honourable Beverley McLachlin, Chief Justice of the Supreme Court of
Canada; Jeannie Thomas, Executive Director of the Canadian Judicial Counsel;
the Honourable Weldon Graser, Justice of the Court of Queen’s Bench of New
Brunswick, Family Division; the Honourable David Smith, Chief Justice of the
Court of Queen’s Bench of New Brunswick; the Honourable R. James Williams, a
Justice of the Supreme Court of Nova Scotia and the Honourable Martin Cauchon,
the Federal Minister of Justice. The subpoena to the Honourable Martin Cauchon
has been returned and cancelled with the consent of the accused.
The
witnesses have applied, pursuant to Rule 69 of the Rules of Court, for
an order to quash the subpoenas. The applicable subsections of the Criminal
Code are subsections 698(1) and 699(1). Those subsections read as follows:
698.
(1) Where a person is likely to give material evidence in a proceeding
to which this Act applies, a subpoena may be issued in accordance with this
Part requiring that person to attend to give evidence.
699.
(1) If a person is required to attend to give evidence before a superior court
of criminal jurisdiction, a court of appeal, an appeal court or a court of
criminal jurisdiction other than a provincial court judge acting under Part
XIX, a subpoena directed to that person shall be issued out of the court before
which the attendance of that person is required.
(The underlining is mine)
In the
present case, the subpoenas were issued by the clerk of the court.
The
Court of Appeal of Saskatchewan concluded in Foley v. Gares, 
reflex, [1989]
53 C.C.C. (3d) 82, that the person authorized to issue the subpoena should
conduct some inquiry, satisfying himself or herself that the proposed witness
has material evidence to give. In the opinion of that Court or in that Court’s
view, the examination need only be a cursory examination, not necessarily under
oath, but if no such examination takes place, the person issuing the subpoena
may have exceeded his or her jurisdiction.
It is common knowledge that the aforementioned
examination is very seldom conducted. In most cases there is no need for it.
To conduct an examination for every subpoena issued would prove time consuming
and would no doubt clog up the system. The decision to conduct or not to
conduct an examination should be left to the discretion of the person
authorized to issue the subpoena. In most cases, the identity of the person
requesting the subpoena and that of the person to whom it is directed will
dictate whether an examination should be conducted. In the present case, no
examination was conducted by the clerk of the court before issuing the
subpoenas.
In my
view, upon recognizing the names of the persons to whom the subpoenas were
directed, the clerk should have informed the trial judge who may have decided
to conduct the examination himself or order the clerk to do it.
Essentially
the issue before the Court on the present application is whether the applicants
have material evidence to give at the trial of the accused Osborne. The onus
is on the accused on a balance of probabilities, see subsection 698(1). The
test therefore is whether the witness to whom the subpoena is directed is
likely to give material evidence on behalf of the defendant. The subpoenas
issued by the clerk are all subpoenas duces tecum, which means that the
witnesses are required to bring with them the documents therein specified. The
documents are in every case either records of courses offered to judges by the
National Judicial Institute, records of training followed by Justice Guerette
and other justices, records of complaints against Justice Guerette and other
judges, statistics regarding complaints in Family Law matters and in Justice
Williams’ case, all documents, research and data used in his article, “Grasping a Thorny Baton”.
The
accused is entitled to a fair trial and is entitled to make full answer and
defense. He is not, however, entitled to go on a fishing expedition and
attempt to expose Mr. Justice Guerette or any other judge for that matter, to
ridicule or to make a mockery of the judicial process.
I find
nothing in the accused’s arguments and in the evidence presented by him to
satisfy me on a balance of probabilities that the Honourable Beverley
McLachlin, the Honourable David Smith, the Honourable Weldon Graser, the
Honourable James Williams, Mrs. Jeannie Thomas or Mr. George Thomson are likely
to give material evidence or that the documents which they are requested to
bring with them will represent material evidence at the trial of the accused.
The five subpoenas are therefore removed into this Court and are quashed. The
Court refuses to issue the requested subpoena for Mr. George Thompson.
_______________________________
J. Roger McIntyre
A Judge of the Court of Queen’s
Bench
of New Brunswick
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