A-73-75
John Emmett McCann, Walter Alan Dudoward,
Rheal LaMarche, Ralph Cochrane, Jake Quiring,
Donald Oag, Keith Curtis Baker, Andrew Bruce
and Melvin Miller (Appellants) (Plaintiffs)
v.
The Queen and Dragon Cernetic, in his capacity
as Institutional Head of the British Columbia
Penitentiary (Respondents) (Defendants)
Court of Appeal, Jackett C.J., Pratte and Urie
JJ.—Vancouver, February 18 and 19, 1975.
Practice—Trial Division prohibiting appellants from being
present together during trial, and ordering that presence of
appellants be permitted only to give evidence Appeal.
Appellants appeal from a judgment of the Trial Division
prohibiting them from being present together during their trial,
and ordering that their presence be permitted only to give
evidence. Appellants had been moved from a penal institution
and held in custody in the building where the courtroom was
located. Neither this action, nor the subsequent move of the
appellants to the courtroom was sanctioned by any order of the
Court. At the opening of the trial, appellants' counsel applied
for an order permitting the attendance of appellants together in
the courtroom, which was denied.
Held, dismissing the appeal, the Trial Division has no juris
diction or discretion to require that a person in lawful custody
be brought to trial of a civil matter except to give evidence.
Because of this lack of jurisdiction, the additional ground for
the order, i.e. security reasons, is irrelevant. There can be no
implication that the Court was exercising its inherent jurisdic
tion to make orders for the control of order and decorum in the
courtroom so as impliedly to prohibit appellants from coming
into the courtroom to be present during the trial.
APPEAL.
COUNSEL:
B. Williams and D. Sorochan for appellants
(plaintiffs).
J. Haig and K. Burdak for respondents
(defendants).
SOLICITORS:
Swinton & Co., Vancouver, for appellants
(plaintiffs).
Deputy Attorney General of Canada for
respondents (defendants).
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal against a judg
ment of the Trial Division delivered on February
10, 1975, whereby, according to the notice of
appeal, it was ordered that the appellants "not be
permitted to be present at the same time during
the whole of their trial and that they only be
present for the specific purpose of giving
evidence."
The appellants brought an action in the Trial
Division for a declaration while they were under
lawful confinement in a federal penal institution.
At the opening of the trial of that action, coun
sel for the appellants made an application orally
for an order, in effect that, apart from any attend
ance at the trial as witnesses, all the appellants be
permitted to be present in the Court room "during
the course of their trial".
At the time when such application was made the
appellants were not in the Court room. It would
appear that, pursuant to an arrangement between
counsel, the appellants had been moved in custody
from the institution in which they were serving
their sentences to quarters in another part of the
building in which the Court room was situate,
where they were being held in custody. We were
not made aware what legal authority, if any, exist
ed for removing the appellants from the institution
in which they were serving their sentences. It is
clear, however, from what counsel told us during
argument, that it was not done under the authority
of any Court order. It would also appear that the
further move of the appellants from the quarters in
which they were being held in custody at the time
the trial opened to the Court room was, as a
matter of fact at least, dependent upon the Court
granting an order, such as that sought by their
counsel at the opening of the trial.
After argument of the application, during which
the Court indicated a view that it had no jurisdic
tion to make any order for the attendance of
persons at a trial other than one for the issuance of
the necessary process for attendance of witnesses
to give evidence at the trial, (and also indicated
concern about security problems in connection
with the conduct of the proceedings), an order was
made orally dismissing the application. That order
was, for purposes of appeal, reflected in a docu
ment reading, in part, as follows:
2. The Plaintiffs' motion that the Court permit them to remain
in the court room together at the same time for the duration of
the trial both before and after the giving of their testimony is
denied.
That document was signed by the judge presiding
at the trial.
This appeal is from the order so made.
I agree with the Trial Division that that Court
had no jurisdiction or discretion, this being a civil
action as opposed to a criminal prosecution,' to
require that a person in lawful custody be brought
to the trial of a civil matter otherwise than for the
purpose of giving evidence. Indeed, counsel for the
appellants made no submission, in so far as this
appeal was concerned, that the Trial Division had
any such jurisdiction.
Once it is realized that the purpose of the
application giving rise to the order under attack
was to obtain an order of the Court the primary
purpose of which was to operate as a direction to
those charged with the custody of the appellants
requiring that the appellants be brought into the
Court room, in my view, it becomes apparent that
the Court had no jurisdiction to make the order
and had, therefore, no alternative but to reject the
application.
Furthermore, once it becomes apparent that the
Court had no jurisdiction to make an order the
purpose and effect of which would have been to
require those charged with custody of the appel
lants to bring them into the Court room, the
correctness of the order rejecting the application is
not affected by the fact that the Court adopted, as
it appears to have done, an additional ground,
namely security considerations, that might not
11 express no opinion as to whether the Court has any
authority in connection with the matter in the trial of a
criminal charge.
have been a valid basis for rejecting the order 2 if
the Court had had jurisdiction to make it.
Indeed, it cannot escape notice that, the applica
tion having been made verbally, it assumes differ
ent forms in the summary that I have made from
the "proceedings at trial", in the written reflection
of the order made for purposes of appeal and in
the notice of appeal; and that, in all three forms, it
is open to the interpretation that it is a mere
application by parties to a civil action to be in the
Court room when their case is being heard. If that
were all that was involved, the application would
not of course have been made. Parties to lawsuits
come into the Court room as a matter of course
and no Court, under our system, would, or could,
do anything to preclude them from coming into the
Court room while their case is being heard (leav-
ing aside problems of decorum, order, space etc.).
If counsel were to apply to the Court for a special
order that his client be allowed to come into the
Court room for the hearing of his case, the Court
would, very properly in my view, dismiss the
application as being unnecessary and a waste of
the time of everyone concerned with the case. It is
precisely because this was not such a frivolous
motion but was a motion regarded as necessary in
order to cause the appellants to be moved from
their then place of detention to the Court room
that, in my view, the Court took time for full
argument and, coming to the conclusion that it
had no jurisdiction to make the order, denied it.
I appreciate that there is a danger that the
refusal to make the order applied for, as reflected
in the document signed by the presiding judge,
might be open to the interpretation that the Court
was doing something more than dismissing a
request for directions to bring into the Court room,
otherwise than as witnesses, persons who were in
lawful custody. I should, therefore, add that I am
of opinion that a review of the material before this
Court does not reveal that, when the application
was dismissed, circumstances had arisen that
would justify any implication from the dismissal
2 A question concerning which I express no opinion.
that the Court was exercising its inherent jurisdic
tion to make orders for the control of order and
decorum in the Court room during the course of
the trial so as impliedly to prohibit the appellants
from coming into the Court room to be present
during the course of the trial.
I am of opinion that the appeal should be dis
missed with costs.'
* * *
PRATTE J.: I concur.
* * *
URIE J.: I concur.
It should be noted that, to expedite the disposition of the
matter an unsuccessful attempt was made to work out a
judgment of the Court that would indicate by an informal
preamble the views of the Court; and that counsel for the
appellant did not seriously press the claim, in his memorandum
filed in this Court, for an order that the appellants be permitted
to attend at the trial subject to the right of the Trial Judge to
exclude them upon evidence adduced establishing proper cause
therefor.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.