JUDGES: Galipeault, St. Jacques, Barclay, Bissonnette and Gagne JJ.

 

DATE: November 20, 1946

 

 

KEYWORDS-1: [**1] International Law — Diplomatic immunity — Documents stolen from foreign Embassy by employee of Embassy submitted by Crown as evidence.

 

SUMMARY-1:

 

The privilege of diplomatic immunity given to an Ambassador by international law extends to himself, his personnel, dwelling, documents, archives and correspondence, and can be renounced only by his own State. But where acts committed by the diplomatic corps tend to put the safety of the State to which the corps is accredited in peril, then the immunity fails before that higher interest. The question of what immunity is granted is strictly for the Executive. Where, therefore, the Executive has submitted documents stolen from the Russian Embassy, which might otherwise be held privileged, for use in a prosecution of one of its own citizens, and Russia has made no claim to immunity in respect of the documents, the Courts have no jurisdiction to determine whether the documents are privileged, and whether the Executive has committed a breach of international law. The Executive having become seized of the documents and having determined to use them, the documents were the property of the Executive, and free from any privilege. Similarly, the Executive [**2] having decided that  [*619] 

 

the witness who produced the documents, being a former employee in the Russian Embassy, was not a diplomatic agent, and the witness claiming no immunity, no one else could put forward any claim that the immunity should prevent the witness from giving evidence in respect of the documents.

 

Semble that in any event, although the documents came from the Russian Embassy, they were from the offices of a military attache, the witness was one of his staff, and the Ambassador had no access to them, and therefore the witness could not be said to be one of the Ambassador’s personnel, nor the documents part of the Ambassador’s documents and archives.

 

Cases Judicially Noted: R. v. A. B., [1941] 1 K.B. 454, refd to.

 

KEYWORDS-2: Evidence X G — Conspiracy — Hearsay evidence of statements and acts of conspirators admitted after conspiracy shown by direct evidence — Order of submission of evidence — Circumstantial evidence.

 

SUMMARY-2:

 

Once there has been direct evidence tending to prove the existence of a conspiracy, hearsay evidence as to things said and done by one conspirator in furtherance of the common design becomes admissible evidence against all the other conspirators, and [**3] may be used to support proof of the actual existence of the conspiracy. Where, therefore, there is ample direct evidence that the accused agreed with other persons to obtain information for communication to a foreign power, contrary to the Official Secrets Act, 1939 (Can.), c. 49, evidence of another witness as to what was done with the information, and documents proved to have been written by another of the conspirators which showed certain acts done in furtherance of the intention, are admissible to prove the conspiracy.

 

The general rule that the direct evidence should be submitted prior to the indirect evidence in such cases is not absolute. Where the reverse occurs, the effect of the indirect evidence is suspended until the direct evidence has been adduced.

 

The question as to the admissibility of the hearsay evidence being a question of law, and the evidence having been properly admitted, it became circumstantial evidence, and it was proper for the trial Judge to deal with it as such in his charge to the jury.

 

Cases Judicially Noted: Paradis v. The King, 61 Can. C.C. 184, [1934] 2 D.L.R. 88, S.C.R. 165; R. v. Can. Import Co., 61 Can. C.C. 114; affd 62 Can. C.C. 342, [1935] [**4] 3 D.L.R. 330; Cloutier v. The King, 73 Can. C.C. 1, [1940] 1 D.L.R. 553, S.C.R. 131; R. v. Simington, 45 Can. C.C. 249; R. v. Container Materials Ltd., 74 Can. C.C. 113, [1940] 4 D.L.R. 293 [affd 77 Can. C.C. 129, [1942] 1 D.L.R. 529, S.C.R. 147]; Richards v. Verrinder, 2 D.L.R. 318, 17 B.C.R. 114, folld.

 

KEYWORDS-3: Evidence XI I — Conspiracy — Irrelevant evidence becoming relevant on charge of conspiracy — Evidence of visit by accused to home of a conspirator.

 

SUMMARY-3:

 

Per Bissonnette J.: Evidence which, taken by itself, may be irrelevant, may become relevant and admissible in a conspiracy charge to show close relationship and the existence of the conspiracy. Evidence, therefore, of a visit by the accused to the home of one conspirator, in company with other conspirators, is admissible.  [*620]

 

KEYWORDS-4: Depositions — Evidence given at preliminary inquiry by witness who refuses to testify at trial — Opportunity of cross-examination — Cr. Code, s. 999.

 

SUMMARY-4:

 

Where the accused and his counsel were present at the preliminary inquiry, and a witness made a few statements and then refused to testify further, the depositions are properly admitted at trial when the witness refuses to be sworn. The accused had all [**5] the opportunity to cross-examine which the Court could give, and although the witness would probably have refused to answer questions, if asked, the opportunity to cross-examine is all that is required under s. 999 of the Cr. Code.

 

Cases Judicially Noted: Levesque & Graveline v. The King, 62 Can. C.C. 241, [1934] 4 D.L.R. 416; Chapdelaine v. The King, 63 Can. C.C. 5, [1935] 2 D.L.R. 132, S.C.R. 53, refd to.

 

KEYWORDS-5: Indictment & Information I — Consent of Attorney-General — Form of consent — Official Secrets Act, s. 12 — Necessity of consent where charge not under Act — Cr. Code, s. 573.

 

SUMMARY-5:

 

Per Gagne and Barclay JJ.: A consent to a prosecution under the Official Secrets Act, 1939 (Can.), c. 49, is required to prevent prosecution for an offence entirely different from that brought to the notice of the Attorney-General. Where, therefore, the offence is one against the State and so no individual can be named as the person against whom the offence was committed, a consent is valid which designates the accused and the sections of the Official Secrets Act alleged to have been contravened, and a further offence of “conspiracy to commit the same”, although it does not specify the time of commission [**6] of the offences. This is particularly true when it is clear from all the facts that the offence charged is that referred to in the consent.

 

Semble, per Barclay J., the offence not being one under the Official Secrets Act, but being rather a charge under s. 573 of the Cr. Code of conspiracy to commit offences against the Official Secrets Act, the provision of s. 12 of the Act requiring the consent of the Attorney-General is not applicable.

 

Cases Judicially Noted: R. v. Breckenridge, 10 Can. C.C. 180, 10 O.L.R. 459; R. v. Johnson & Carey Ltd., 20 Can. C.C. 319, 18 O.W.R. 985; Ririazes v. Langtry, 3 D.L.R. 824; R. v. Seto Kin Kui, 27 B.C.R. 416; R. v. Safeway Stores Ltd., 70 Can. C.C. 393, [1938] 3 D.L.R. 798, discd.

 

KEYWORDS-6: Conspiracy — Conspiracy to commit offences against Official Secrets Act — Propriety of charge.

 

Per Barclay J.: The fact that it takes two or more persons to commit an offence under the Official Secrets Act, 1939 (Can.), c. 49 (for example, there must be an unlawful giver of information and an unlawful receiver) does not render a charge of conspiring to commit offences under that Act improper. There is a distinction between complicity in the violation of an Act and [**7] a conspiracy to violate the Act.

 

KEYWORDS-7: Indictment & Information II — Conspiracy — Sufficiency of description of offence — Reference to other counts in same indictment — Cr. Code, s. 852.

 

SUMMARY-7:

 

Per Barclay and Gagne JJ.: An indictment is a pleading and its object is to give the accused such information as will enable him to establish fully and fairly his defence. Thus, where an  [*621] 

 

indictment contained four counts, each charging a specific offence, and a fifth count for conspiring to commit the “foregoing indictable offences”, and the Court ordered trial on the fifth count first, the fifth count was valid end the fact that it was necessary to refer to the four individual counts to determine what was meant by the “foregoing” offences, did not make it invalid.

 

KEYWORDS-8: Indictment & Information IV — Trial I A — Authority of trial Judge to alter sequence of charges on indictment.

 

SUMMARY-8:

 

Per Barclay and Gagne JJ.: Where an accused was indicted on four specific counts and a fifth count of conspiring to commit the offences charged in the previous counts, it is proper for the trial Judge to order that the trial on the conspiracy count be proceeded with first. Otherwise it would be unfair to the accused [**8] as indicating to the jury that there were other charges pending against the accused in the same matter. The substance of the indictment not being changed by the order, the order is a proper one.

 

KEYWORDS-9: Criminal Law II E — Particulars in judicial discretion of trial Judge — Royal Commission and preliminary inquiry preceding trial.

 

SUMMARY-9:

 

Per Barclay and Gagne JJ.: The accused was indicted on four individual counts and a fifth count of conspiring to commit the offences charged in the previous counts, and a motion for particulars was made by accused in respect of the four counts but not in respect of the conspiracy count. Before the motion was determined, another motion was made for a separate trial on each count. The latter motion was granted and it was ordered that the Crown proceed with the conspiracy count. The accused could then have moved for particulars in respect of that count, and not having done so, could not complain because he did not receive particulars.

 

In any event, assuming that particulars had been refused, the granting or refusal of particulars rests in the discretion, Judicially exercised, of the trial Judge. The special counts in the indictment themselves furnished some particulars [**9] of the fifth count. In addition, the circumstances of the case were exceptional in that the arrest and indictment of the accused were preceded by an inquiry before a Royal Commission and the accused must have been fully aware of these proceedings. Further, there had been a preliminary inquiry and the trial Judge and counsel for the accused had the depositions taken at the inquiry. In the absence of proof to the satisfaction of the Appellate Court that the trial Judge did not exercise his discretion judicially in refusing to order particulars, if indeed he did refuse, his order should not be disturbed.

 

Cases Judicially Noted: R. v. Griffin, 63 Can. C.C. 286, [1935] 2 D.L.R. 503, 9 M.P.R. 84, folld.

 

KEYWORDS-10: Indictment & Information I — Conspiracy — Single conspiracy count charging conspiracy to commit several offences.

 

SUMMARY-10:

 

Per Barclay J.: A single count of conspiracy to commit several distinct offences is not multifarious where one agreement only is charged. If there were a separate agreement to commit each offence, one charge of conspiracy would be improper.

 

Trial I D, E, — Comment on failure of accused to testify where onus on accused — Canada Evidence Act, s. 4 — Official Secrets Act, [**10] s. 4(3).

 

Subsection (3) of s. 4 of the Official Secrets Act, 1939 (Can.), c. 49, creates an offence of receiving official secrets or information  [*622] relating thereto unless the receiver proves that the communication was contrary to his desire. The effect of this is that in a prosecution the burden on the Crown is satisfied upon proof that the accused did receive such information to which he was not entitled and the onus is then upon him to show that he received it against his wishes. Section 4 of the Canada Evidence Act, R.S.C. 1927, c. 59, does not prohibit counsel or the Judge in such a case from commenting on the fact that no evidence was adduced to show that the information was received contrary to the accused’s desire. Here the Judge’s comment was a reference to remarks by Crown counsel asking why, if there were no conspiracy, certain persons stated by a witness to be involved in the conspiracy had not come forward to proclaim their innocence but rather had in some cases pleaded guilty. In any event this comment is one with regard to the evidence of the existence of the conspiracy, and if made prior to consideration of the evidence implicating the accused is not objectionable. [**11] 

 

Cases Judicially Noted: Reg. v. Corby, 1 Can. C.C. 457; Bigaouette v. The King, 47 Can. C.C. 271, [1927] 1 D.L.R. 1147, S.C.R. 112; R. v. Armstrong, 59 Can. C.C. 172, [1933] O.W.N. 24; R. v. May, 23 Can. C.C. 470, 21 D.L.R. 728, 21 B.C.R. 23, 7 W.W.R. 1261, refd to.

 

Evidence VII A — Conspiracy — Conspiracy to commit offences under Official Secrets Act — Expert evidence that acts not prejudicial to safety of Canada.

 

On a charge of conspiracy to commit offences against the Official Secrets Act, 1939 (Can.), c. 49, evidence that the accused’s conduct was not prejudicial to the “safety or the interest of Canada” is properly excluded. While it is an element of certain offences under the Official Secrets Act that the acts be to the prejudice or safety of the interests of Canada, the conspiracy count is not laid under that Act.

 

Further, a witness who professes to be an expert on foreign affairs, is not competent to decide whether the accused’s acts were in the interests of Canada, since he is not in a position to decide whether the presumption created by 8. 3(2) of the Official Secrets Act, that a specific act is prejudicial to the safety of Canada, should apply. In any event the [**12] question of the prejudicial nature of the conspiracy is for the jury to decide.

 

Criminal Law IV C — Commencement of sentence from date appeal determined Code, ss. 1018, 1019 — Failure to show reason to depart from general rule.

 

Statutes Considered: Cr. Code, ss. 573, 852, 999, 1018, 1019; Official Secrets Act, 1939 (Can.), c. 49, ss. 2, 3, 4, 12; Canada Evidence Act, R.S.C. 1927, c. 59, s. 4(5).

 

APPEAL by the accused from his conviction of conspiring to commit offences against the Official Secrets Act, 1939. Affirmed.

 

Joseph Cohen, K.C., Abraham Feiner and Albert Marcus, for the accused.

 

Hon. F. Phillipe Brais, K.C., Oscar Gagnon, K.C., and Wm. J. Meredith, K.C., for the Crown.

 

GALIPEAULT and ST. JACQUES, JJ. concur.

 

JUDGMENT-BY: BARCLAY, J.

 

BISSONNETTE, J. (translation)

 

GAGNE, J. (translation)

 

JUDGMENT:

 

BARCLAY, J.:—As the facts of this case appear elsewhere, I need not repeat them. [*623]

 

There are a large number of grounds of appeal, but I shall deal only with those which in my opinion merit consideration. They may roughly be divided into three main categories: (1) Preliminary objections and matters relating to procedure; (2) objections as to the kind of evidence and its legality; and [**13] (3) objections to the Judge’s charge.

 

The first objection, in the order raised by the appellant, concerns the so-called refusal of the trial Judge to order particulars. This complaint cannot be dealt with adequately without a consideration of two other complaints, namely, the sufficiency of the count charging conspiracy and the re-arrangement of the indictment preferred by the Attorney-General of Quebec.

 

As will be seen from the preferred indictment, the accused is first charged with four substantive offences, one of them subdivided, and finally with conspiracy to commit the said offences.

 

The first question I will consider concerns the sufficiency of the count charging conspiracy.

 

Section 852 of the Cr. Code enacts in effect that each count shall contain and shall be sufficient if it contains in substance the statement that the accused has committed some indictable offence therein specified.

 

Counsel for the accused contends that each count must be complete in itself as if it were an indictment by itself and that all the requirements of the section must be found within the four corners of the count. It flows from this, he contends, that reference cannot be had to other counts [**14] to explain or supplement such count, even though they be in the same indictment. If by that counsel means that a count defective in itself cannot be explained by looking at other counts, I would agree. On the other hand, I know of no law or rule which prevents the incorporation of other counts in any particular count. In a charge of conspiracy, it is permissible to add other counts setting forth the overt acts of the conspiracy, when proof of the commission of the overt act or acts may be the only or best proof of the conspiracy. An indictment is a pleading and its object is to give to the accused such information regarding the charge against him as will enable him to establish fully and fairly his defence.

 

In the indictment as originally drawn, the substantive offences were charged first and they were in effect incorporated into the count charging conspiracy by the use of the words, “foregoing offences”. What was meant is clear and does not give rise to any complaint that the accused was not aware of what he was being charged with. It is, in my opinion, the same as if [*624]

 

each of the overt acts were repeated in the count charging conspiracy. When a separate trial was ordered, [**15] the count charging conspiracy had to be read in that manner. It could not be read with the words “foregoing offences” left by themselves and not applicable to anything else contained in the indictment.

 

The accused then complains that the trial Judge had no authority to change the sequence of the indictment. I see no merit in that complaint. The substance of the indictment was not changed one iota. If the order had not been inverted, it would have been unfair to the accused, as it would have indicated to the jury that there were other charges pending against the accused in connection with the same matter. By inverting the order, the substance was in no way changed but the unfairness was obviated.

 

This brings me to the question of particulars.

 

Particulars were asked for when the accused was arraigned on the preferred indictment containing the five counts and after he pleaded not guilty thereto. Particulars were only asked concerning the four counts charging the overt acts. There was no demand for particulars concerning the count charging conspiracy. No doubt, if particulars had been furnished on the first four counts, these same particulars would have been available for the charge [**16] of conspiracy. A motion for a separate trial was made at the same time as the motion for particulars. The two motions were argued together before any decision was made on either of them. It seems to me a matter of indifference as to which motion was granted first or second. The Court granted the motion for a separate trial and ordered the case to proceed on the conspiracy charge only. The entry in the proces verbal states, “The motion for particulars remains in the record”. Counsel for the defence insists that the motion was in reality dismissed, and indeed counsel for the Crown, in his factum, says at p. 2: “Cette motion fut rejetee par le tribunal”. I would be inclined to the view that this Court is bound by the official record of proceedings rather than the statement of counsel, when there is a conflict between the two. The fact is that there was no request for particulars on the conspiracy charge and when, upon the request of the accused, a separate trial was ordered on the conspiracy charge alone, the accused could then have asked for particulars on that charge, and, not having done so, it cannot be made a ground of appeal to this Court that particulars were not furnished. But [**17] assuming, for the benefit of the accused, that it could be said that the motion did apply to the conspiracy charge and was dismissed, this Court would [*625]

 

have to say whether or not the trial Judge was justified in refusing the particulars. That is a matter which is left to the discretion of the trial Judge and it is for the defendant to show, if he objects, that that discretion has not been exercised judicially. There are limits to the right of a defendant to obtain particulars. The particulars to which he is entitled should not in principle give him more information than a special count would give. In this case there are special counts incorporated into the charge of conspiracy. The Judge too has to take the circumstances of the case into consideration. The circumstances of this case are exceptional. The arrest of the accused and the indictment were preceded by an inquiry before a Royal Commission. This fact is established throughout the present record and the findings of that Commission were, and in my opinion unfortunately, well known to the public at large including the Judge. Of all these proceedings the accused must have been well aware. There was also a preliminary [**18] inquiry. The depositions then taken were read by the trial Judge. He so states. These depositions are not before this Court. The learned trial Judge was entitled to take these depositions into consideration, as well as all the pertinent circumstances, and this Court cannot now say, with the material before it, that he did not exercise his discretion judicially in refusing particulars. The defendant failed to satisfy this Court on that point.

 

The appellant further complains that the count is multifarious, in charging five separate and distinct conspiracies. I consider this ground unfounded. There is only one charge of conspiracy. A criminal agreement may be to commit one or more indictable offences. If there were a separate agreement to commit each offence, then one charge of conspiracy would be insufficient, but when there is one agreement to commit several offences, one charge of conspiracy, and one only, lies. The five substantive offences were the alleged objects of a single conspiracy.

 

The next ground of appeal is that the authorization of the Attorney-General of Canada was insufficient and therefore illegal and could give no jurisdiction to the Court.

 

By s. 12 of the Official [**19] Secrets Act, 1939 (Can.), c. 49,

 

A prosecution for an offence under this Act shall not be instituted except by or with the consent of the Attorney General: Provided that a person charged with such an offence may be arrested, or a warrant for his arrest may be issued and executed, and any such person may be remanded in custody or on bail, notwithstanding that the consent of the Attorney General to the [*626]  institution of a prosecution for the offence has not been obtained, but no further or other proceedings shall be taken until that consent has been obtained.

 

At the hearing, there was a lengthy argument by counsel for both sides as to the necessity or otherwise of any consent being required on a charge of conspiracy, such a charge being laid in virtue of the Criminal Code and not in virtue of the Official Secrets Act. If no consent was necessary, cadit questio. In my opinion, no consent was necessary.

 

If, on the other hand, consent was necessary, it was, in my opinion, quite sufficient. The whole object of the consent is to prevent prosecution for an offence entirely different from that brought to the notice of the Attorney-General and to which the consent is intended [**20] to apply. The defence based its objection as to the sufficiency of the consent on a series of cases decided in this country. The first recorded case is that of R. v. Breckenridge (1905), 10 Can. C.C. 180, 10 O.L.R. 459. This case was followed in R. v. Johnson & Carey Ltd. (1911), 20 Can. C.C. 319, 18 O.W.R. 985; Ririazes v. Langtry (1912), 3 D.L.R. 824; R. v. Seto Kin Kui (1919), 27 B.C.R. 416, and R. v. Safeway Stores Ltd., 70 Can. C.C. 393, [1938] 3 D.L.R. 798. All these cases, with the exception of the Seto case, in which no reasons for judgment were given, were prosecutions under the Alien Labour Act. In the Breckenridge case, the consent named the offender and the act alleged to have been violated, without naming any particular provisions thereof as having been violated, and omitted to name the person in respect of whom the offence was alleged to have been committed or the time and place of the alleged violations. Meredith J., speaking for the Court in this case, stated that the consent should contain at least a general statement of the offence alleged to have been committed, mentioning the name of the person in respect of whom the offence is alleged to have been committed and [**21] the time and place, with sufficient certainty to identify the particular offence intended to be charged.

 

There is, in my opinion, a great distinction to be made between such cases and the case at bar. These were cases susceptible of summary conviction. In the present case, there is no person to name against whom the offence has been committed; it is of its nature an offence against the State. The offence in this case is not set forth in the general, as in the Breckenridge case, but in the particular, by reference to certain clauses of the Act as having been violated. As to the place, the Official Secrets Act (s. 13) provides that, for the purposes of the trial [*627] of a person under the Act, the offence shall be deemed to have been committed either at the place in which the same has actually been committed or at any place in Canada in which the offender may be found. The same presumption should, in my opinion, be applied in interpreting the sufficiency of the consent.

 

There remains the matter of the time of the commission of the offence. There is nothing in the law which requires that the consent should contain all the elements essential to the validity of an indictment. [**22] The object of the consent, as already stated, is to prevent a prosecution for an offence entirely different from that brought to the notice of the Attorney-General. There can be no doubt, in the circumstances of the present case, that the prosecution instituted was that to which the consent was intended to apply. Furthermore this section of the Official Secrets Act, unlike the Act to which the Breckenridge case applies, allows the charging, the arrest and the remand of the prisoner prior to the obtaining of the consent.

 

The appellant contends that there can be no charge for conspiracy for an offence under the Official Secrets Act. He argues that, since it takes two or more persons to commit an offence under the provisions of that Act, if they agree together the charge should be for the commission of the substantive offence and not for conspiracy. Apparently his contention is that, if two or more people violate the statute, that in itself constitutes a conspiracy. The answer to that argument is that there is a distinction to be drawn between complicity in the violation of an Act and a conspiracy to violate the same.

 

Coming now to objections to the evidence, perhaps the most important [**23] is the objection to the testimony of the witness Lunan, charged as a fellow conspirator. At the trial, this witness refused to take the oath and the Crown thereupon made application to introduce into the record the evidence given by him at the preliminary inquiry, under the terms of s. 999 [am. 1939, c. 30, s. 25] of the Cr. Code. This section permits the introduction of a deposition of a witness at the preliminary inquiry, when the same witness refuses to testify or to take the oath at the trial, if the accused had been given full opportunity to cross-examine the witness at the preliminary inquiry. The defence claims that the accused did not have that opportunity. The argument is based on the following facts: When Lunan at the inquiry refused to answer further questions, the Crown asked that the witness be held in contempt of Court. The Judge declared the witness in contempt and ordered that he be kept in custody. He was brought back to Court on a later date and [*628] again refused to testify and was again remanded in custody. While this witness was still within the jurisdiction of the Court the Crown declared its enquete closed. Counsel for the accused argues that the examination [**24] of Lunan was never completed and that, therefore, no cross-examination could be commenced. On either occasion, when the witness refused to testify, the defence could have moved for the right to cross-examine. If counsel was of the opinion that the Crown had not completed its examination, he did not have to proceed, but, when the Crown declared its enquete closed, counsel then knew definitely that the examination of this witness was terminated so far as the Crown was concerned. As already stated, Lunan was still within the jurisdiction of the Court and available as a witness at that moment. Defence counsel then had full opportunity to cross-examine him, if he so desired. The fact that he did not do so is not the point, but the fact that he had the opportunity is decisive. If the contention of the defence is that he had no opportunity to cross-examine because the witness would refuse to testify, that objection is unfounded. By a “full opportunity to cross-examine” is meant that the defence is given every opportunity which the Court and the law gives him to examine a witness. The refusal of the witness to answer does not affect the opportunity to cross-examine. It is the opportunity [**25] to cross-examine, and not the actual cross-examination, which the law envisages.

 

Now as to the objection that the witness Gouzenko was immune from examination and that the documents which he took from the Russian Embassy were also covered by immunity: I do not intend to discuss theoretically the question of immunity, because, in my opinion, it does not arise in this case. Immunity is not claimed by the witness Gouzenko, nor by anybody on his behalf entitled to claim immunity. The documents in question are put before this Court by the State. They have been, as pointed out by my colleague, Mr. Justice Bissonnette, seized by the State. It is not for this Court to decide whether or not the Government has violated international law or not. The documents are legally before this Court and should be so dealt with.

 

The objection that a lot of the evidence was irrelevant, as being mere hearsay, is also unfounded in my opinion. In most cases of conspiracy the actual agreement must be gathered from several isolated doings having possibly little or no value in themselves. (Paradis v. The King, [1934] 2 D.L.R. 88, S.C.R. 165, 61 Can. C.C. 184.) In a conspiracy case the evidence changes its character [**26] as the case proceeds. Evidence given by a co- [*629] conspirator may at first be only evidence against the witness himself, not the accused, but as and when a conspiracy is proved in which the accused was involved, then such evidence, if it be of acts in furtherance of a common design, becomes evidence against the accused. Where the evidence lays a sufficient foundation to show that several persons have met for the purpose of conspiracy, the declaration of any of the parties, or of any person shown to be connected with that conspiracy, made at any time or place, relative to the object of the conspiracy, is evidence against each and all. Some of the evidence and some of the documents may be irrelevant, but there are others which are not, and the inclusion of the irrelevant evidence, while it may constitute an irregularity, is not such an irregularity as would in any way affect the final result. This Court can say that, notwithstanding that irregularity, the jury must inevitably have come to the same conclusion, for I have no doubt whatsoever that the conspiracy has been proved.

 

Leaving aside all other evidence for the moment, there is the direct evidence of Boyer that he and [**27] the accused met together on several occasions and made an agreement with a common design, namely, to give secret information to the Russians, — information to which they were not entitled and which could only be obtained for them by both of the conspirators violating the provisions of the Official Secrets Act. Boyer says categorically that he gave this information to Rose — information which he characterized as something of considerable importance — in order that the latter might convey this information to the Russian Technical Mission, which Boyer says was then in Canada. There is no proof that such a Mission was then in Canada. “My motive”, says Boyer, “was to try to influence Fred Rose to urge the Russian Technical Mission which was in Canada to repeat their request for the process officially”.

 

Q. Did you suggest to him that you wished the subject of the conversation to be kept secret? A. No. Q. As a matter of fact, if I can deduce it, you gave him that information in order that the Russian Technical Mission would get the technical information officially? A. Yes.

 

It matters not what motive induced Boyer to betray his office. The moment he gave this secret information to any [**28] unauthorized person he violated the Official Secrets Act, and he was or must be presumed to have been fully aware of that fact. The moment the accused received this information, after his many endeavours to get it, he in turn violated the Act. Not only is there a legal presumption against him, which was not [*630] rebutted, but there is indirect evidence which in my opinion, became legal once the conspiracy was proved, showing that the accused handed on this information, not to the Russian Technical Mission but to the headquarters of the spy ring operating in this country.

 

Of the many exhibits produced, there is one — ex. 32 — which is proved to be in the handwriting of Col. Zabotin, one of the alleged co-conspirators. This is a document taken from the Russian Embassy at Ottawa, purporting to be a record of materials sent to the address of “the Director”, “the Director” being the head of the spy service in Moscow. It is divided into a number of columns, showing the source from which and under what circumstances the materials were obtained, the name of the materials, the date and number, and the number of pages. One entry gives as the source “Debouz”, which is shown to be the [**29] so-called “cover” name of the accused. The material is described as “notes”, the name of the materials “conversation with Professor”, “the Professor” being the cover name for Boyer. No date is given but this entry is on the same page with other entries all in the latter part of 1944. Boyer in his evidence says that he gave the information on RDX to the accused during a number of interviews, beginning at the end of 1943 and ending towards the close of 1944, and that at one of these interviews, which were always at the request of the accused, he dictated the ingredients of RDX and spoke of the proportions, and the accused took notes on a number of them. The jury were entitled to draw their own conclusions from ex. 32 that notes consisting of one page, resulting from a conversation with Boyer, were forwarded to Moscow, having been received from Rose.

 

There is another exhibit — P. 50 — also taken from the Russian Embassy, and proved to be also in the handwriting of Col. Zabotin, dated August 14, 1945, reading in part as follows: “Tasks will be detailed to Grey, Bacon and the Professor through Debouz. The Professor is still away on command. Meeting with Debouz to take place end of this [**30] month”.

 

The jury again were entitled to draw their own conclusions as to whether this document did not fit in with the proof of the continued meetings of Boyer and Rose following the other meetings at which it was admitted that secret information was given.

 

A further exhibit — P. 71 — width bears no date and which also proved to be in the handwriting of Col. Zabotin, reads in part as follows:

 

Professor. Frenchman. Well known chem-[*631]-ist, about 40 years. Works in the McGill University Montreal. Is the best specialist on explosives on the American continent. Gives full information about explosives and chemical plants. Very rich. He is afraid to work. (Gave the formula RDX up to the present there is no valuation from the Master). Gave materials on poison gas (O.V.).

 

The meaning of the word “Master” had best be left to one’s imagination.

 

In view of the expressed desire of Boyer that the information which he gave to Rose should be given to the Russians, and in view of this indication that his desire was apparently realized, the jury were perfectly entitled to accept these documents as strong circumstantial evidence against the accused. There is ample proof as to the [**31] genuineness of these documents.

 

Then there is the evidence of Miss Willsher, who had meetings with Rose from 1936 down to the first two or three months of 1939. She says that Rose suggested to her that she give him information regarding her work in the British High Commissioner’s Office and she gave him from time to time information — “not always public information”. She admits that, in doing so, there was for her a “clash of loyalties”. From her evidence it is perfectly plain that the intention was to give and to receive information which was to be relayed to the Russians. It is true that these interviews and actions preceded the time stated in the indictment, but the evidence, in my opinion, was legal as tending to show the beginning of the conspiracy, and it was perfectly legal to submit it to the appreciation of the jury as to the origin, character and object of the conspiracy. There is also in Miss Willsher’s evidence that, having begun this system with Rose, she continued it with others, and those subsequent actions are all part and parcel of the same conspiracy, for which the accused is therefore responsible.

 

I come now to what appeared to me at the hearing to be the most [**32] serious of the appellant’s objections, namely, to that part of the Judge’s charge reading as follows:

 

The Crown contends that the existence of a spy ring, organized by the Russians, has been clearly proven, and, if the documents filed by Gouzenko and the statements therein were lies, why would Lunan, Gerson and the others not come here to deny them.t Why have Miss Willsher and Miss Woikin pleaded guilty to the charge — why was not Sam Carr here to deny them? Why did they not proclaim their innocence?

 

I have had the advantage of reading the notes of my colleague, Mr. Justice Bissonnette, on this point, and I agree with his [*632] opinion. I would merely add that, as Rose was tried separately, each of the co-conspirators charged in the same indictment was a compellable witness and there is nothing in the law to prevent a comment on the silence or refusal to testify of such a witness. The objection would be well founded if the co-conspirator were also a co-accused in the same trial. If there was any direct or indirect reference to the failure of the accused to testify, it is to be found in an earlier part of the Judge’s charge:

 

If a person received information regarding [**33] war munitions, knowing or having reasonable grounds to believe at the time he receives it that the information is communicated to him in contravention of this Act, he is guilty of an offence unless he proves that the information was received contrary to his desire. In this case there is no proof to that effect at all.

 

This is a case where the burden of proof is cast upon the accused, and the trial Judge has a perfect right to state that the accused has offered no evidence on that point.

 

I am also in agreement with my colleague in his remarks regarding the Judge’s charge dealing with the evidence as circumstantial rather than as hearsay, or as being practically one and the same thing in a conspiracy trial.

 

On the whole I would dismiss the appeal.

 

No. 515. Appeal against the sentence.

 

As to the appeal against the sentence, counsel for the accused advances no reasons and I can find none which would justify any interference by this Court. I would, therefore, dismiss the appeal against the sentence.

 

BISSONNETTE, J. (translation

 

Approved translation of reasons for judgment which were originally rendered in French.*):—Found guilty upon the verdict of a jury of the Court of Assizes [**34] at Montreal upon an indictment for having conspired to violate the provisions of the Official Secrets Act, 1939 (Can.), c. 49, the accused, upon his appeal to this Court energetically attacks the validity and legality of his conviction.

 

Whatever interest there may be for the counsel who supported and fought, with diligence and talent, the grounds of appeal upon both questions of law and of fact, I will not even attempt to sum up briefly their pleading which lasted more than seven days or to cover the vast cycle of their respective legal allegations and no less extensive deductions from the events revealed by the evidence.

 

Desirous and anxious to confine myself rigorously to the authority and competence which s. 1014 of the Cr. Code [*633] attributes to a Court of Appeal, I intend only to put the usual question: Is the verdict justified and is it the result and necessary and inevitable culmination of a just and equitable trial?

 

But according to the method which the counsel for the appellant followed in the presentation of his numerous grounds of appeal, the arguments can be better synthesized and resolved by a more concrete demonstration, if this question be transposed into [**35] the general proposition which the appellant maintains: the verdict is based especially upon illegal evidence and if it is not, the legal evidence was insufficient to justify a conviction. As a result, says the appellant, if this Court decided to rule out this evidence there would be insufficient evidence, in fact, what would amount, in law, to the absence of all evidence. He adds: If the appellant cannot be acquitted because there was legal evidence, since the Judge, in his summing up of the arguments, committed illegalities prejudicial to the accused, he should have a new trial.

 

The charge laid against the accused Rose by the Government of Canada is for having conspired with a group of Russians and Canadian subjects to commit various offences provided for and defined in the Official Secrets Act of 1939.

 

What then is the object and purpose of this Act? Retaining only that part of the Act which served as the basis of the charge brought against the appellant and isolating the sections which relate thereto from all incidental phraseology and from the heavy statutory language, we find three strict prohibitions:

 

(a) The Act prohibits joining up, collecting or obtaining information that [**36] could be transmitted to another country for a purpose prejudicial to the security and interest of Canada whether it be from documentary or an oral source;

 

(b) The Act likewise prohibits any person who, by reason of his duties or his work, is put into possession of official secrets and possesses information relating to munitions of war, to communicate them, in whole or in part, to anyone whatever, unless it be a person authorized to ask for or to receive them;

 

(c) Finally, as a natural consequence of the prohibition mentioned in the previous paragraph, the Act prohibits any person from receiving any official secrets or information relating thereto, when that person is not authorized to receive such information. This is the general object of the Act. Its purpose is to prevent any foreign power from obtaining, in whole or in part, any information whatever as to military secrets of the country and more particularly as to our scientific methods and materials of production. [*634]

 

This Act derogates from the ordinary principles of the definition of offences provided by our Criminal Code and from the rule of common law in regard to evidence. As a general proposition, under the Criminal [**37] Code, the Attorney-General is obliged to prove the constituent elements of an offence, the participation of the accused in the offence charged, in a word, the guilt of the accused.

 

Under the present Act, the obligation of the prosecutor is lightened by exception because the facts which form the various offences defined in this Act are proved through presumption and by the transfer of the onus of proof from the Crown to the accused himself.

 

So s. 3 creates an offence which any one commits who, for a purpose prejudicial to the safety of the State, furnishes official information to a foreign power. According to the ordinary policy of our criminal procedure, in order to succeed in its case, the Crown would be obliged to prove that the accused acted “for a purpose prejudicial to the safety of the State”, and, in the second place, that the information was given to another State. But the effect of this section is very different.

 

It sets up two presumptions which, if not rebutted, prove these two elements of the offence. The first is that the giving of such information to a person not authorized to receive it is acting in a manner prejudicial to the safety of the State; the second is that [**38] being in contact with an agent of another State, in Canada or elsewhere, will in itself be evidence that the accused acted to the prejudice of the State and in the interest of this foreign power. This latter presumption acquires still more force and authority because the same section presumes that the information was given to the agent of a foreign power, when it is established that the accused was in communication with such agent, or visited his home, or even if he has the name, address or other information relating to such agent, presumptions which the accused has the onus of destroying.

 

Section 4 also restrains the field of action of an employee of the State or of its various organizations, as it rigorously restricts the obtaining of information by an unauthorized person.

 

By combining s.-ss. (1)(a) and (b) and (3) of s. 4, two simultaneous offences may be committed: whoever possesses confidential information by reason of his duties in the service of the State commits an offence by the sole fact of furnishing, in whole or in part, such information to an unauthorized person; besides, whoever, not being a person authorized to receive it, obtains official or confidential information [**39] of the nature of that [*635] provided by the Act, by this fact alone, likewise commits an offence, unless he proves that such communication was made to him contrary to his desire.

 

Finally, by s. 2(b), the Act defines the terms “receiving” and “communicating” information and it specifies that giving information, in whole or in part, or simply giving the substance thereof, suffices to create the crime.

 

Such seems to me to be the meaning and procedure of this Act from certain aspects only.

 

The indictment lodged against Fred Rose by the Attorney-General of Canada, reduced to its real substance, charges him with having conspired with foreign and Canadian subjects to violate several provisions of the Official Secrets Act, to wit:

 

(a) Having obtained and communicated, with a design and, for a purpose prejudicial to the safety of Canada, information susceptible of being useful or advantageous to a foreign power, that is Russia;

 

(b) Having made a foreign power, Russia, profit from information which he had obtained illegally;

 

(c) Having informed a foreign power, that is Russia, as to the nature of Canada’s munitions of war;

 

(d) Having consented to receive official secrets which [**40] he knew were revealed to him illegally.

 

If this charge of conspiracy is legally proved and nothing prejudicial to the appellant was done in the course of his trial, the verdict remains untouchable by this Court, for s. 1014 Cr. Code renders us powerless to look into the merits, to substitute ourselves for the jury in the appreciation of the evidence.

 

In order to understand the nature of the evidence submitted by the Crown and study its legality or probative value as well as to discuss the serious objections which the defence raises, it is essential to make a rapid recital of the facts which constitute the origin and development of this case, in which the Canadian Government is the real plaintiff.

 

In 1939 Canada declared war against Germany and took part in the defence of eastern Europe and associated its military effort with that of Great Britain and of the United States. In the course of the conflict Germany attacked Russia which, fighting the same enemy as the Occidental Nations, became a military ally to which Canada gave important and generous assistance. Our country exchanged diplomatic agents with Russia which maintained an Embassy of the Great Sovereign State in Ottawa. From [**41] this time on, the situation becomes clear. The centre of Russian espionage in Moscow decided to open a powerful under- [*636]

 

ground in this country. Colonel Zabotin was put in charge of this delicate mission. He was accredited to the Canadian Minister of Foreign Affairs as Military Attache of the Russian Embassy. Supported in his zeal by the combined effort of high officers, such as Sokolov, Motinov and Rogov, he did not delay in setting up the material organization of this centre of espionage in the very premises of the Embassy, and to fashion the powerful network in which his secret agents, either Russian or Canadian, would work.

 

The soul of this movement, of this office of espionage, Zabotin, was the intermediary between the central office in Russia and Ottawa and at the same time the head of various groups of spies in Canada. And in the isolation of his concrete and steel offices, hermetically closed to all outside gaze, he compiled information upon information, in particular as to the nature and expansion of our military effort. He strove to have his secret agents taken into vital Government organizations or to be placed in strategic posts. The evidence reveals that this [**42] network of espionage extended its ramifications, notably, in the Ministry of Foreign Affairs for Canada, in the Ministry of Munitions and Supply, in the Office of the British High Commissioner, in that of the War Information Board and, above all, in the National Research Council. Col. Zabotin maintained his effort. All the conspirators, all the pawns of an immense chess board were at the service of the espionage cause. Information was obtained, contacts maintained, documents accumulated in the files of Zabotin’s office. Our military and economic production, the force of our armies, the nature and inventions of our engines of war, the site and importance of our principal factories, and, in particular, some of our military secrets — all that was compiled, analyzed and in the end transmitted to the mother cell in Moscow. It is a part of these documents and of these files of information which the Russian, Gouzenko, who was in charge of deciphering the codes at this centre of Russian espionage in Ottawa — documents ciphered and deciphered by his successor — sneaked from the records and which after having been submitted to the Royal Commission, were brought in as evidence against the [**43] accused.

 

It should be pointed out that the accused is not a person of no importance. He is a political personality. A candidate of the Progressive Labour Party in 1943, in the electoral district of Montreal, he was elected as a representative in the Canadian House of Commons. He was re-elected at the General Elections in 1945.

 

One day after having learned that he would have to [*637] return to Russia and that he would be replaced by the Russian Sulakov, Gouzenko decided to denounce the actions of this Russian organization. He tells of his wonder upon the realization of democracy and at the same time of his disgust for the unworthy mission that had been confided to him. Making as judicious a choice as possible from the voluminous correspondence carried on with Moscow by the Military Attache, Zabotin, and also from the reports of the agents in Canada, writings filed in a vault to which he had access, he put together a series of documents which, according to him, brought to light evidence of the existence of a system of Russian espionage and which indicated the principal agents of this ring by their real and fictitious names. Gouzenko then quit the service of Russia and, immediately [**44] tracked down by his former confederates, he escaped from them in time and, after many trials and tribulations, he turned over to the Royal Canadian Mounted Police under the authority of the Minister of Justice, the documents that he had stolen from the files of his chief, Col. Zabotin.

 

Persuaded by the analysis of these documents that a spy plot existed in Canada and that a Member of the House of Commons was apparently mixed up in it, the Canadian Government named a Royal Commission composed of two Judges of the Supreme Court of Canada who proceeded with an inquiry following which the Minister of Justice had a complaint lodged against the accused, Fred Rose.

 

The Crown realized that, in order to sustain the charge, it would have to prove first the existence of a spy plot and then the participation of the accused in the conspiracy to violate the Official Secrets Act. For this purpose, it submitted indirect evidence similar to hearsay, circumstantial evidence mainly documentary, and finally direct evidence mostly oral.

 

For the elaboration of this lengthy proof, counsel for the Crown subpoenaed Gouzenko as a witness and had him produce almost a hundred exhibits. Some came from Col. [**45] Zabotin himself. These were the latter’s communications with the Moscow cell, others were the replies received from that place and deciphered by Gouzenko and turned over to Zabotin. To this first series of documents, Gouzenko added another consisting in general of reports coming from certain agents in the espionage ring, reports to which from time to time, they added information obtained from various branches of the Canadian Administration of State. It should be noted immediately that these documents prepared by Zabotin and his immediate helpers were perfectly identified and that their authenticity has been established by [*638] Dr. R. Fontaine, an expert. The secondary or hearsay evidence, as well as the great part of the circumstantial evidence, comes from the witness Gouzenko and documents which the Crown had him turn into the record.

 

As for the direct evidence, the Crown submitted it through the testimony of accomplices and co-conspirators of the accused and it is to be found in the depositions of Mazerall, Woikin, Willsher and above all, in the important testimony of Raymond Boyer. As I must analyze several aspects of such evidence at the time of the argument of the grounds [**46] of appeal, I will confine myself here to pointing out that the depositions of these witnesses tend to show that the accused, Rose, had tried to suborn some of them in order to obtain confidential information from Canadian Departments of War or connected organizations and had effectively succeeded in obtaining official secrets in regard to the manufacture of arms or more precisely, as to the perfections that had been made in them.

 

The President of the Assizes held the evidence submitted and relied upon by the Crown valid and admissible, but, accordingly to the appellant, he erred first in not rejecting that which was indirect, foreign or not relevant and that which did not come within the provisions of s. 999 of the Criminal Code, and secondly in depriving the appellant of the right to establish, in particular, that he had not acted in the desire to injure the safety of Canada, he caused the appellant real prejudice.

 

The principal of the numerous grounds of appeal therefore alleges that the President of the Assizes authorized or tolerated illegal evidence. An analysis of these items of the evidence will throw a better light on the appellant’s grounds if they are grouped under the [**47] following classification:

 

(a) Gouzenko, an employee of the Embassy, enjoyed the privilege of immunity attaching to diplomatic agents and could not therefore be a competent witness, whence it follows that his evidence was illegally received and accepted. On the same principle, the learned counsel for the defence maintains that the same privilege of immunity attaches to the documents produced by him and from which was drawn an argument as to corroboration of his statements;

 

(b) according to the defence, the learned Judge illegally admitted hearsay evidence and, above all, he did not even differentiate it from the circumstantial evidence in his summing up of the argument;

 

(c) The Judge likewise erred, in spite of objections of the [*639]

 

defence, in not limiting the Crown to the relevancy of the particular facts of the charge;

 

(d) The Judge erred in permitting the production of the deposition of the witness Lunan contrary to the provisions of s. 999 of the Cr. Code.

 

Is the objection arising from the privilege of immunity well founded?

 

A preliminary remark is imperative. The accused is not a diplomatic agent, does not pretend to be part of a diplomatic corps, in a word, he [**48] does not claim immunity for himself, he does not pretend that the immunity resides in his person. He is not said to be authorized by a foreign State to invoke this privilege for himself or for that State which, according to the record, does not expect it. He maintains, and I feel well seized of his argument, both in his statement and at the hearing, that immunity, being an absolute privilege resulting from jus gentium, every Court of Justice, as soon as the matter sub judice permits establishing that this privilege is put in peril, is, erga omnes, without jurisdiction or competence to hear or to receive the deposition of a diplomatic agent and to take cognizance of documents which he offers in evidence, without the consent of the State that he represents.

 

If the privilege of immunity is absolute, and if the facts which this provision contains are true, counsel for the defence is right. If on the contrary, this privilege is relative and has exceptions, his thesis lacks any foundation.

 

The works that have been written on public international law are innumerable and the majority of them have touched upon this theory of immunity of diplomatic agents. To make even a sufficient study would [**49] go beyond the questions and object of these notes; so, I will have to confine myself to taking up only the great principles in so far as will be necessary to render justice to the grounds which the appellant has elaborated forcefully in his statement. In order to eliminate numerous quotations and the reproduction of so many comments, I will point out that the principles I set out have been taken from Traite de Droit International Public by Paul Fauchille who was on the staff of well known Reviews and Societies of international law. His work serves rather the function of a Digest, so that this eminent author seems to me to be a sure and impartial guide.

 

Counsel for the appellant then maintains the following propositions:

 

That the learned trial judge erred in law in permitting into [*640]  evidence, over the objections of the defence, testimony of acts and declarations done or said on territory foreign to Canada, outside the territorial limits mentioned in the indictment and without the jurisdiction of the court;

 

That the learned trial judge erred in law in admitting into evidence, over the objections of the defence, the testimony of witness Igor Gouzenko inasmuch as such [**50] evidence was wholly inadmissible on the ground that such testimony was covered by diplomatic immunity which had not been waived;

 

That the learned trial judge erred in law in allowing, over the objections of the defence, the production of the documents by the aforementioned witness Gouzenko inasmuch as all such documents emanated according to him from the Embassy of the U.S.S.R. in Canada or from au office, department or official of the said Embassy and were therefore inadmissible being covered by diplomatic privilege which had not been waived and were at all times the property of a foreign state and immune from any dealings therewith by any court.

 

The right of a legation is an important and precious attribute of the sovereignty of any State. “The active right of a legation,” writes Fauchille, p. 32, No. 658, or the disposition to accredit diplomatic agents to other States, the passive right, or the disposition to receive the envoys of other States, constitute attributes of sovereign power. To use the right of a legation, actively or passively, is to exercise sovereignty, to affirm political independence. Sovereign States possess the rights of legation both active and passive. [**51]

 

Two groups of duties fall upon such diplomatic agents, one which they must fulfil in regard to their own Sovereign, the other toward the Chief of State to whom they are accredited. These duties can be summed up in two very significant words — in the first place, the diplomatic agent must be faithful, in the second place, loyal.

 

All admit, however, that the function of the diplomatic agent can be effectively exercised and that he can accomplish the delicate mission with which he is charged, only if he enjoys complete liberty in the foreign State, only if he is free from all subjection to the State in which he temporarily resides. And the sovereignty of the State which he represents would suffer a certain dependence if its diplomatic envoys did not remain subjects of the Sovereign whom they were called upon to represent and to serve. It is upon this necessity that the principle of the privilege of diplomatic immunity is founded.

 

“Present international law,” writes Fauchille, [*641]  recognizes the enjoyment of prerogatives and of immunity for diplomatic agents. Their cause and the reason justifying them is to be found in the independence which the public servant must enjoy in [**52] regard to the Sovereign to whom he is accredited. The principle of diplomatic immunity is based upon the respective interest of the States. This interest does not permit that diplomatic agents be exposed in their person or their property to any encroachment which would not leave them freedom of action and which would fetter the international relations for which they serve as intermediaries.

 

“The law of nations,” says Montesquieu (Esprit des lois, liv. 26, c. 21- Comp. Bynkershoek, De foro competente legatorum, c. 8 no. 2)

 

requires that princes send ambassadors, and reason, drawn from the nature of the thing, did not permit that such ambassadors depend upon the Sovereign to whom they were sent, nor upon his courts. They are the mouthpiece of the prince who sends them and that mouthpiece must be free. No obstacle must prevent them from acting. They may often displease because they speak for an independent man. Crimes might be imputed to them if they could be punished for crimes; debts might be set up against them, if they could be arrested for debt. A prince who has a natural pride would be speaking through the mouth of a person who might have everything to fear! The reasons drawn [**53] from the law of nations and not those which derive from political rights must therefore be followed with regard to ambassadors. Should they abuse their representative nature, a stop can be put to it by sending them back home; they may even be charged before their master who thereupon becomes their judge or their accomplice.

 

“The natural law,” states Vattel in his turn (Droit des gens, liv. IV, c. VII, p. 92)

 

 imposes on all sovereigns the obligation to consent to things without which nations could not cultivate the fellowship which nature has established between them, to correspond together, to deal with their business, to adjust their differences. Now, ambassadors and other public servants are instruments necessary to the maintenance of that general fellowship, of such mutual dealings between nations. But their minister cannot achieve his purpose, if he is not furnished with all the prerogatives capable of assuring legitimate success and of having him carry on in security, freely and faithfully. (op. cit. 58)

 

Such immunity is determined by a classic division of the two great privileges which flow therefrom: the inviolability of the diplomatic agent and the immunity from jurisdiction. [**54]  [*642]

 

“Inviolability” says Calvo (Le droit international theorique et pratique, vol. III, no. 1481)

 

is a quality, a characteristic which places the person who is invested therewith above any attack, any action. Applied to diplomatic agents, it is not merely the ordinary protection accorded by every State to anyone who lives peaceably on its soil, it is, says M. Pietri (Etude critique dur la fiction d’exterriotalite, p. 106) it is the right to absolute and complete security, freedom from restriction, the untouchability of the person on any occasion. The right of public ministers to enjoy such a privilege precludes any discussion: it is based not upon mere convenience, but upon necessity.

 

In principle, the inviolabilty of diplomatic agents dominates the entire matter. It is one of the most ancient manifestations of international law. It is the fundamental privilege: the others flow therefrom as from corollaries or are attached thereto as accessories. The inviolability is applicable either to the person or to the residence of the public minister. (op. cit. p. 63)

 

This privilege of inviolability is very extensive. It protects even the person of the ambassador, his personnel, [**55] his dwelling and his documents and archives, including his correspondence. The authors question whether this privilege comes from the principle of extraterritoriality or if it takes its source from the character of sovereignty recognized in the State. It must he said that modern public international law rejects the theory of extraterritoriality and prefers rather the necessity of recognizing a full dignity in the State which delegates an ambassador. In a word, the States recognize a parity of rights and privileges amongst themselves and concede a perfect equilibrium of authority and of jurisdiction.

 

The fundamental principle of inviolability is the liberty of action and of word, necessary and indispensable to a public minister. It is therefore a necessary consequence of the fundamental right of independence, of sovereignty, and of mutual respect of States. Upon the same principles and for the same reasons, it is also necessary to recognize the privilege of immunity from civil or criminal jurisdiction for the diplomatic agent in the State in which he functions.

 

In order that diplomatic agents may manage the affairs of their Sovereigns in all freedom, it is not sufficient, says [**56] Geffeken, that their person be inviolable, they must be independent in every way from territorial jurisdiction to its fullest extent. Now since the diplomatic agent cannot be free from all jurisdiction, he remains subject to that of his natal country, where he retains his legal domicile. He is bound to respect the laws of the coun- [*643]

 

 try in which he resides, but any complaint, any claim lodged against him can be addressed only to his Government or to the Courts of his country. (Fauchille, op. cit. p. 86)

 

Can the diplomatic agent renounce such immunity? This must be answered in the negative.

 

This immunity is a principle of public order, necessary to the maintenance of specific international relations. The diplomatic agent cannot renounce this exemption; he cannot depend upon his own wish to interfere with the independence and right to equality of the State which he represents. Seized with a criminal prosecution or one for a minor offence, the Courts must declare themselves incompetent. But, since immunity is recognized for the diplomatic agent in the interest of his Government it seems that the State may renounce it for its agent. (Fauchille, op. cit. p. 89)

 

As is established, [**57] the privilege of immunity is necessary, it is vast, efficacious and is admitted by the Law of Nations. But is it absolute? Can it be claimed and must it be granted in all cases? In other words, is it subject to certain exceptions?

 

It cannot be doubted that diplomatic immunity admits of certain necessary and logical restrictions. The prince who delegates his representative to another prince does so through consideration, through friendship and regard for such Sovereign and, in return, he consents to receive the delegate of this other State for the same reasons. The foundation of their diplomatic relations rests first of all in the principle of honour. There is a mutual and absolute confidence and it is presumed that the Sovereign will delegate a person apt to respect the sovereignty of the other State strictly. Such diplomatic agent therefore owes an absolute loyalty to the foreign State. One must therefore infer that such diplomatic agent can do or attempt nothing against the safety of the State which has consented to receive him.

 

If the public minister indulges in doings contrary to the dignity of the Sovereign and the safety of the State which has received him and thereby abuses [**58] his immunity, can he nevertheless claim the privilege of immunity?

 

In theory, the answer must be in the affirmative. Very different however are the practical consequences. In fact, a distinction arises. If one understands, in such particular case, that the diplomatic agent would be deprived of his immunity in the sense that he would become subject to the authority and control of the civil and criminal jurisdictions of the State which he just offended, it must be recognized that this privilege sub- [*644] sists nevertheless and that this agent must escape from the judicial power.

 

On the other hand, if one understands that the privilege of immunity becomes illusory because the executive power, in whom the exercise of the external sovereignty of the State reposes, has the right and the duty to take every means of prevention against such agent, as well as to apply all measures of repression in order to render reprehensible acts of a diplomat who violates his mandate inefficacious, it must be said that such immunity would cease to exist.

 

Lefur in Precis de droit international public writes (No. 468):—

 

This inviolability covers all the acts of his office, but only those. It [**59] may be likened to parliamentary immunity. The diplomatic agent is not covered if he commits a crime against the public order or the safety of the State; in such case he is exposed not only to arrest but to expulsion. This is an extremely grave measure; if groundless, it could lead to war.

 

He had previously said (No. 466):-

 

There is not only a courtesy but an international ethics to respect. The abstention from espionage by official agents is a matter of dignity. As far as the military attaches are concerned they are there to hear and see all they can, but that does not mean that they should indulge in espionage.

 

The same doctrine is recognized by the reputed author, Oppenheim, in International Law, 5th ed., vol. 1, p. 622:

 

But such immunity of domicile is granted only insofar as it is necessary for the independence and inviolability of envoys, and the inviolability of their official documents and archives. If an envoy abuses this immunity, the receiving government need not bear it passively.

 

When such public servant fails in the code of honour and places the safety of the State in which he lives in peril, “a sort of tacit renunciation of the privilege of inviolability” must [**60] be seen in the guilty actions of such agent. (Pradier-Fodere, Cours de Droit diplomatique, vol. 2, p. 36.) It seems to me that it could not be otherwise.

 

The security of the State which authorizes him to carry out his duties upon its territory, the very dignity of the State that has consented to receive him, the respect that it owes itself, as well as the obligation which falls upon it of protecting its own subjects, all that requires that the agent guilty of plotting, of conspiracy, or of espionage, be expelled and, on principle, deprived of the privilege of immunity.

 

However, I repeat, it is necessary to retain the exception [*645] that, in such an occurrence, a minister so betraying his trust cannot be summoned before the civil or criminal jurisdiction of the foreign State. Why, then? It is because, says de Martens, Causes celebres, vol. 1, p. 139, “If the diplomat violates the law of nations, it does not follow that the other State has the right to do likewise.”

 

For practical purposes, it is recognized in the present state of international law, especially since the war of 1914-1918, that if a diplomatic corps conspires against the State to which it is accredited, organizes [**61] espionage or sabotage, or is guilty of real acts of war against the State, the offended Government has the right immediately to take every repressive measure, any initiative which may annihilate or destroy the acts of disloyalty endangering the public as a result of the abuse of office of such Embassy. And these measures of repression or protection could go as far as expelling the ambassador, of putting his mansion, his documents and archives under a sort of seal. If there is error or abuse of authority on the part of the State which takes such initiative, everything must be governed or explained through the ordinary diplomatic channels.

 

Such seem to me to be the general principles governing this particular aspect of diplomatic immunity.

 

It goes without saying, a State may expand or restrict the so vague and imprecise authority of international law. It may derogate from or amplify it through particular legislation, or even through a specific act. If the latter transgresses a fundamental principle, the action of the State would be reprehensible, but for all time, it will remain accomplished, definitive and without remedy.

 

Canada has no particular legislation of public international [**62] law, so that the general rules must be applied here.

 

In the present case, the witness Gouzenko swore that the documents which he took possession of were the property of the Embassy and that they had been stolen from a part of the premises of the Embassy, independent from that which constitutes the residence itself of the Russian Ambassador. Within the strict bounds of his deposition, we must read that he did not say that these documents had a diplomatic character, he simply stated “That they were the property of the Embassy.” As for himself, he explained at length that he was not attached to the Embassy and that the espionage organization of which he was a part was independent of the Russian diplomatic service.

 

What then, is the legal character of these documents? Are they diplomatic writings? Do they enjoy immunity? [*646]

 

It will be recalled that these documents were, according to the statement of Gouzenko, turned over to the Department of Justice through the intermediary of the R.C.M.P.

 

Whatever meaning can be attributed to the evidence of Gouzenko, to establish the fact properly, one must solve the following problem: whether or not they were the property of the Embassy. [**63] If they did not belong to the Embassy, the question of immunity does not even arise. Besides, if they belonged to the Embassy, and logically that is the position that must be taken according to the evidence of Gouzenko, there is reason to ask whether they had the character of “diplomatic documents”.

 

International law creates a presumption of law that documents coming from an Embassy have a diplomatic character and that every Court of Justice must refuse to acknowledge jurisdiction or competence in regard to them. But can this presumption be avoided, rebutted or destroyed? If the acts committed by the diplomatic corps were contrary to the legislation of the country to which it is accredited and if, a fortiori, they had the immediate purpose of putting the safety of the State in peril, there is no longer any freedom of the dwelling or of the documents, chattels, effects or armaments which may be found there.

 

Before granting or recognizing a privilege to another State, a State has the right to accord to itself a first privilege, that of its own security. To decide otherwise would be to grant a so-called international rule an authority superior to the strict, rigid and necessary rule [**64] that the State, first and foremost, owes to its own citizens, independently of its foreign duties, to assure its own security and to repress crimes which its own nationals might commit against the King and against the security of the country.

 

The first duty of a diplomatic agent is to respect the security of the State. The diplomatic agent and his personnel cannot be summoned to Court, but any measure to prevent them from injuring it can be taken: surrounding and closing in upon the Embassy, requiring the turning over to the authorities of any guilty person who seeks asylum, seizing and arresting any courier, documents, plans, photographs, reports, etc., the moment the State is certain that its safety is in peril. Without stressing it unduly, I point out that this competence to repress the abuses of a diplomatic agent reposes exclusively in the executive power. If immunity is not admitted by the executive, any discussion becomes purely academic.

 

If documents seized are then turned over to a Court of Justice [*647] for the prosecution of a crime committed by one of the citizens of the country, the Courts cannot give effect to immunity, cannot counteract the decision of the executive [**65] of the country, cannot exercise competence in a field, upon a matter exclusively governed by the rule of external sovereignty, that is to say, from the absolute and exclusive authority of the State to condition and determine its own relations with other States. If it were otherwise, the conflict of powers between the executive and the judiciary would lead to an absurdity and juridical anarchy. Thus, the State could maintain that the documents are not diplomatic and the judiciary that they are, that the ambassador does not have the right of immunity and that his passports have been returned to him, and the Courts, for their part, decide that an employee of the Embassy enjoys the privilege of immunity.

 

In the present case the Government has been placed in possession of such documents and the moment the State decided to keep them, they became “seized” in the legal sense of international law, and they automatically ceased to “enjoy” the privilege of immunity. That is easily understood. By a legal fiction, by the exercise of its power of sovereignty which it is understood to exercise over them and in relation to the Russian State, the Canadian State made these documents fall into its [**66] heritage, so that from that time on they were no longer the property of the ambassador or of his Government, but the property of the Canadian Government.

 

But there is more. When the Canadian Government decided to use these documents against one of its nationals and offered them in evidence before one of its Courts, the ordinary presumption that they must have the benefit of the privilege of immunity was destroyed by the fact that they emanated from the Canadian Government itself and not from the ambassador, and, consequently, another presumption in favour of the Crown was created, to wit, that these documents were free from the privilege of immunity so long as the defence did not establish that the Canadian Government continued to recognize the immunity. This evidence was not even attempted. It would have required the production of an Order in Council or the testimony of the Minister of Foreign Affairs. The fact that these documents had been stolen or that they were supported by the evidence of an informer, did not displace the question nor prevent the Court of Assizes from submitting their text to the jury.

 

The Imperial statute, 7 Anne, c. 12, was discussed at length [*648]  [**67] by both sides. By reason of the statement which I previously made, it becomes useless to analyze this Imperial Act because the object which the defence had in view in asking us to take judicial notice thereof was to support the existence of the privilege of immunity, which I believe I have admitted.

 

Furthermore, the recent decision of the English Court, R. v. A.B., [1941] 1 K.B. 454, accepts the same theory but states also that the general principle of exceptions or derogations must be admitted.

 

In short, the Canadian Government could keep these documents or return them to the Embassy. If it returned them it accepted the privilege of immunity. If it kept them, it decided that they were not diplomatic documents and, consequently, were capable of being validly made part of the record of the accused.

 

For the same reasons, the evidence of Gouzenko who, on his own admission, was not an employee of the diplomatic corps, could be given and submitted to the jury without transgressing any rule of international law. All that part of the evidence is legal.

 

To sum up, I believe that diplomatic immunity is relative; that the Courts must give effect to it and accord its advantage to every diplomatic [**68] agent who claims it; that the privilege of taking advantage of the immunity of a foreign State cannot be admitted for a Canadian citizen in litigation between his Government and himself, when he is not part of a foreign diplomatic corps; to impose, through a judicial decision, immunity upon a State which does not claim any, would be casting a slur upon its dignity, its sovereignty, and, through a gesture as ungracious as unexpected, would elevate a simple suit to a degree of international importance and create, at least in theory, a diplomatic conflict contrary to the will of the executive power itself.

 

I have too much respect for public international law to sanction such a theory. Re hearsay evidence.

 

The learned counsel for the defence maintains, in the second place, that if the privilege of immunity is rejected by this Court, it must nevertheless consider the evidence given by Gouzenko and the documents that he produced as illegal, because they constitute only hearsay evidence.

 

The statements of Gouzenko and the documentary evidence that he brings in are facts outside of his personal action, his own doings. He was an intermediary between the conspirators [*649] in Canada [**69] and the espionage cell in Moscow. The contents of what he was given to transmit and what he received for retransmission were not of his personal knowledge. He was a conspirator in the work confided to him, but he was not a conspirator in the action. Unless therefore we are able to connect this evidence with some principle which takes it out of the general rule, it would be necessary to hold this hearsay evidence illegal. In fact, it is a strict doctrine in all jurisdictions, both civil and criminal, that hearsay evidence is not admissible. The reason therefor is known, which is, that the facts related by witnesses who have not experienced them, that statements which others have communicated to them and which were not heard with their own senses, are not capable of verification, prevent any cross-examination in regard to them and render justice very precarious and problematic.

 

In his treatise on Criminal Evidence, p. 91, Popple gives a definition that may be referred to. Summing it up very briefly, it may be said that hearsay evidence consists in the relating of facts or of statements which do not emanate from the one by whom they are offered or of which he had no cognizance. However, [**70] the doctrine and certain rules of jurisprudence have made a distinction between hearsay evidence properly speaking and acts and statements emanating from several accomplices or from one or more conspirators.

 

Taking as the basis of their argument that all that is done by a conspirator is presumed to be done according to the general plan of an agreement or of a concerted illegal act, or even in the pursuit of a common design, these cases recognize that, in a matter of conspiracy, if it has been proven, anything which emanates from any one of them may be brought into the evidence and, more assuredly, certainly, when the co-conspirators undergo separate trials. Certain cases restrict the field of this secondary evidence and emphasize some cases of exceptions over which I will not linger because they do not affect the general proposition.

 

With deference, this doctrine seems to me too absolute and consequently too uncertain. Would it not be dangerous to prove the crime of conspiracy itself by such hearsay evidence? Would it not be better to permit such evidence only in order to bind the conspirators together and to prove their participation in the realization of the aim or of the concerted [**71] plan? If it goes beyond that, I feel that it would be illegal because in short, hearsay evidence in a matter of conspiracy is nothing but circumstantial evidence but having a particular character, [*650] that is, evidence, so to speak, admissible under reserve, evidence subordinated to the existence of other evidence, that of an illegal agreement. A priori, such hearsay evidence does not have the right to be accepted. It is admissible only if evidence of the count itself is brought in.

 

If the Crown, instead of undertaking proof of the offence of conspiracy immediately, feels itself constrained to first submit the facts and conduct and statements of the conspirators, this latter evidence will become legal only if, in the end, the Crown succeeds in proving the conspiracy itself. This liberty or faculty recognized to the Crown has been sanctioned by the Supreme Court of Canada in the Paradis case, [Paradis v. King] 61 Can. C.C. 184 at p. 186, [1934] 2 D.L.R. 88 at pp 90-1, S.C.R. 165:

 

We think the objection is untenable. Conspiracy like all other crimes, may be established by inference from the conduct of the parties. No doubt the agreement between them is the gist of the offence, [**72] but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from several isolated doings (Kenny, Outlines of Criminal Law, 13th ed., p. 294) having possibly little or no value taken by themselves, but the bearing of which one upon the other must be interpreted; and their cumulative effect, properly estimated in the light of all surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawful agreement.

 

A particular example of the effect such indirect hearsay evidence may obtain is found in R. v. Canadian Import Co. (1933), 61 Can. C.C. 114 at pp. 147-8 [affd 62 Can. C.C. 342, [1935] 3 D.L.R. 330]:

 

The letters sent or communicated by third parties to the conspirators of any of them were, if otherwise relevant, admissible as evidence of the knowledge the receivers had of their contents, but not as to the truth of the facts therein mentioned and much less of the opinions therein given. However, if they referred to interviews given or acts done in furtherance of the common object of the conspiracy and if the veracity [**73] of the facts referred to was asserted by a competent witness during this trial, they are admissible as part of his testimony.

 

It matters little that such evidence of conspiracy may be submitted to the Court by means of direct or circumstantial evidence; what is essential is that the evidence of the illegal agreement, of the conspiracy itself, be legally given.

 

As soon as the plaintiff has succeeded in establishing the principal offence, that is when, knowing the existence of a [*651]

 

conspiracy and also the agents, their statements, actions and conduct may be opposed one against the other, because each one has been, or at least is presumed to have been, one of the fabricators of the crime that is imputed to all. And we then have this definite result, that if, at one phase of the trial, the evidence, taken by itself, has an illegal character because of hearsay, it happens that after proof of conspiracy, through a sort of retroactive effect, such evidence which, isolated, would remain illegal, becomes circumstantial evidence attaining a perfect degree of legality.

 

In the present case, was the deposition of Gouzenko admissible?

 

The witness Gouzenko was a sort of factotum for [**74] Col. Zabotin, the Russian military attache. All that was done in his office was communicated to Gouzenko, either immediately, or by stages. He prepared the messages in cipher for Moscow and he deciphered those that Zabotin received. All the documents that he produced in his deposition emanating from Zabotin have been perfectly identified and have an undeniably authentic character. I do not maintain that the contents of these documents is true, I only mean to say that the documents themselves indubitably come from Zabotin. The latter is a member of the conspiracy. Gouzenko, although not expressly mentioned in the indictment, might be treated as an accomplice, that is, as a conspirator. The defence saw in him an accomplice and the Judge did not fail, in his summing up of the argument, to emphasize and comment upon this particular character of the witness.

 

The documents relating to Major Rogov or to the official Motinov, as well as those attributed to Gerson, are likewise identified. In my opinion, all these writings constitute evidence emanating from co-conspirators and forming a series of incidents and events tending to demonstrate the existence of a concerted plan of espionage and [**75] the realization of an illegal agreement from which it follows that this documentary evidence is authentic, admissible and legally proven.

 

But the appellant makes two more objections to the admissibility of this evidence. It should have been given, he says, not previous to the principal evidence of conspiracy but after this evidence. In the second place, he reproaches the President of the Assizes for having confused this hearsay evidence with the circumstantial evidence in his summing up of the arguments.

 

The doctrine on this question in a criminal matter does not seem so rigid, so absolute. What it is sought to guard the Court and the jury against is, as a general rule, not to uncover the [*652]

 

evidence of an illegal agreement for conspiracy in elements of hearsay that are adduced. The ideal system most certain and least prejudicial to the accused, and consequently the least open to attacks in law against a verdict, is to first prove the conspiracy, the participation of the accused in such offence, and then, to submit all the secondary evidence which could bind the conspirators together, establish the realization of their plan, the illegal means used, etc. But this rule is [**76] not de rigueur. Many cases say that conspiracy is established incident by incident, brick by brick, up to the moment when, seeing all the agents of the offence as upon a chess board, the decisive proof that there has been an illegal agreement is adduced.

 

Though the Crown might prove the relations between the conspirators, their actions, their conduct and statements, if it does not prove the agreement itself, the charge must fail. All its indirect or secondary evidence therefore remains suspended and subordinated to one essential condition, proof of the offence itself.

 

This question was studied especially in three cases in the Supreme Court of Canada: Paradis v. The King, 61 Can. C.C. 184, [1934] 2 D.L.R. 88, S.C.R. 165; Cloutier v. The King, 73 Can. C.C. 1, [1940] 1 D.L.R. 553, S.C.R. 131, and R. v. Simington (1926), 45 Can. C.C. 249. What I have attempted to demonstrate seems to me to follow from the rules of law defined by these cases.

 

In R. v. Container Materials Ltd., 74 Can. C.C. 113, [1940] 4 D.L.R. 293 [affd 76 Can. C.C. 18, [1941] 3 D.L.R. 145; affd 77 Can. C.C. 129, [1942] 1 D.L.R. 529, S.C.R. 147] it has, in my opinion, wisely been recognized that the mode of proceeding [**77] with the evidence is a discretionary power of the Judge. This objection of the defence does not seem well founded to me.

 

According to the second objection, the Judge confused the circumstantial evidence with the hearsay evidence. If I am right in the development that I have made on the first objection, this second one must likewise be brushed aside. To find out whether the hearsay evidence was or could, at any stage whatever of the inquiry, become legal, was not — contrary to the allegation of the defence a question of fact, but rather a question of law. It was not a question of appreciating the probative force of this evidence, but simply of asking himself whether it was legal. This was the exclusive forum of the Judge. Now, after having been merely hearsay evidence, from the moment that it assumed the character of circumstantial evidence, the demonstration or [*653] explanations that the learned Judge gave must necessarily have been the same as for circumstantial evidence.

 

This sort of legal metamorphosis was outside of the competence of the jury, it did not have to express its opinion in regard to it, the matter became immaterial to it, so that when the Judge admitted this [**78] hearsay evidence as legal, it became circumstantial and consequently, the explanations that he gave in regard to it, for instance, the circumspection or prudence in accepting it, covered the hearsay evidence by logical deduction. Since the statement of law made by the learned Judge upon the circumstantial evidence is irreproachable, complete and legal, this other objection of the defence must be ruled out. Irrelevant evidence.

 

The third point upon which the defence attacks the legality of the evidence originates in the fact that evidence, foreign or inconclusive in its character, was allegedly permitted. In short, the defence blames the Crown for having related the incident of a visit by the accused Rose, accompanied by Tim Buck and Ryerson, to Lunan’s home.

 

It is true that taken by itself, this evidence of the meeting of Rose, Carr, Buck and Ryerson has no effect but, in the matter of conspiracy, it is an event which bound to others, may have particular significance. This evidence establishes that this group of conspirators knew each other and seemed to have close relations; so that later, when one analyzes certain documents in which they are mentioned and pauses at certain activities [**79] which they unfold, the initial evidence assumes a sure and conclusive character, not only of the very existence of the conspiracy, but of the frequent relations of the members suspected of the illegal plot, relations which, with the aid of other elements of proof, can definitely establish the conspiracy. Could the jury, in the light of all the evidence, make a logical and reasonable deduction from this incident? Without any doubt. Moreover, there has been no real error when one stops to consider with what meticulous care the Judge outlined to the jury by what method and according to what rules it must look at and appreciate the evidence. Evidence of Lunan.

 

Finally, the defence censures the Crown for insisting upon making a part of the record, in extremis according to it, the deposition of Lunan at the preliminary inquiry following his refusal to testify before the Court of Assizes. At that time, the Crown invoked s. 999 of the Cr. Code and persuaded the Presi- [*654] dent of the Court that all the requirements of this exceptional provision were satisfied.

 

Here are the facts. Lunan was summoned as a witness for the Crown at the preliminary inquiry. He began his deposition, replied [**80] to a number of questions but, at a certain moment when the Crown proceeded to question him, he politely but peremptorily refused to reply to any other questions. This was March 25th. Declared in contempt of Court, the Magistrate ordered his detention until April 1st but the next day he was brought back into Court. Called upon to answer he persisted in his refusal. Immediately after this incident (which happened at the preliminary inquiry) the Crown declared its proof closed.

 

From these circumstances the defence deduced the proposition that the witness Lunan was “under actual restraint” and that it had not had the advantage of cross-examining him, so that the production of his deposition before the jury was illegal because it violated the provisions of s. 999 of the Cr. Code. It is to be noted that at this time the learned counsel for the accused participated in the questioning of the witness Lunan, in that he raised from time to time objections to the evidence that the Crown attempted through this witness.

 

At the time of his second refusal on March 26th, the Crown advised the Magistrate that its inquiry was closed. No request was made by counsel for the defence to proceed with cross-examination [**81] of this witness. Besides, cross-examination would have proved impossible, since Lunan had flatly stated that he refused to reply to any other questions. This implied a refusal not only in regard to the Crown but also for the defence.

 

As Mr. Justice Barclay has rightly pointed out, the object of this provision in s. 999 of the Cr. Code is not to obtain cross-examination, but only not to be deprived of the right to make it or to proceed with it. The defence did not see fit to attempt it and it must be presumed that, under the circumstances, it did not wish to compel Lunan.

 

Besides, I feel that at that time the witness was no longer” under restraint”. The inquiry had been declared closed then and there so that the jurisdiction of the Magistrate was exhausted. Section 678(3) of the Cr. Code shows that the provision for recalcitrant witness may be ignored, that the other proceedings remain nevertheless valid and that the case may be deferred to another Court for trial, if the other evidence justifies such a decision. This is therefore an incident which, by its nature, does not at all vitiate the proceedings and may simply be brushed aside by the Magistrate. [*655]

 

Even if this deposition, [**82] filed into the record of the Court of Assizes, was not admissible, this illegality would not justify a new trial unless there had been real error. Now, in the present case, the accused cannot invoke this rule of exception because Lunan did not prove anything against the accused Rose and the incident of a meeting on a convoy train does not establish either directly or indirectly the existence of a conspiracy and the participation of the accused in this offence.

 

When a Court of Appeal is persuaded that, in spite of some illegality, the verdict would necessarily have been rendered against the accused, it cannot order a new trial: Dery v. The King, #A-3062, Quebec, June, 1946; Levesque & Graveline v. The King, 62 Can. C.C. 241, [1934] 4 D.L.R. 416, and Chapdelaine v. The King, 63 Can. C.C. 5, [1935] 2 D.L.R. 132, S.C.R. 53.

 

This fourth objection to the legality of the evidence must be dismissed. Evidence of the Defence refused.

 

Another illegality is invoked by the appellant. He alleges that the Judge erred in fact and in law in refusing to admit evidence that the defence gave to show that the accused had not acted “to the prejudice of the safety or the interest of Canada”.

 

Several [**83] answers may be put forward to this objection. It must be recalled first that the indictment is for conspiracy and not for a particular offence under the Official Secrets Act. From the study of the latter, it would essentially appear that certain offences could not exist unless the accused’s acts have been “to the prejudice of the safety and interest of Canada”. These words therefore relate to a specific offence and not to the offence of conspiracy, so that the offence under the Official Secrets Act became merely an object or means of giving effect to the conspiracy. Whence, it results that the conspiracy must be proved independently and separately from the Official Secrets Act. If this conspiracy is proved, the charge is proved and thereafter it matters little what the particular offence may be. The conclusion must therefore be drawn that the words “prejudicial to the security of Canada” are not essential to the charge.

 

But the appellant adds, the learned Judge said the contrary in his summing up. He affirmed that the Crown must establish that the accused had acted to the prejudice of the safety of Canada in order to prove certain offences under the Official Secrets Act. It is beyond [**84] doubt that the Judge made such a remark, but when one reads the development of his statement on the [*656] matter, one gathers therefrom that he set up this condition when studying one of the particular offences under the Official Secrets Act. To my mind, he never maintained that this evidence was indispensable to the charge of conspiracy.

 

As a second argument, I submit that the evidence attempted by the witness Ward was illegal and irrelevant. That of Gouzenko, where he gave thought to considerations as to the security of Canada was likewise. In fact, these words “prejudicial to the security and interest of Canada” must not be understood in their regular or generic sense, that is to say, according to the meaning they may have in the mind or opinion of a witness or a specialist, or even in relation to diplomatic, military or economic agreements of Canada with any allied or foreign country, but they must be weighed and measured in a restricted sense, that is to say, according to the play and the effect of the presumptions which the Official Secrets Act itself formulates and provides for, and, only in the light of the specific clauses which set up this condition of proof. It was [**85] therefore a matter of finding out, in the course of the trial, whether, according to the evidence submitted to the jury, the appellant had or had not acted to the prejudice of the interest of Canada.

 

Now, Ward could not testify on this subject with full knowledge of the case or validly because two facts escaped him and, besides, the very conclusion was not within his province but belonged to the jury only. The first fact is that he had neither the right nor the authority or competence to appreciate either the oral evidence or the documentary evidence. The second fact is that, since s. 3(2) creates a presumption that a specific act may be prejudicial to the safety of Canada, he could not be authorized to say whether this presumption should come into play. Finally and logically, he could not, moreover, draw a conclusion as to whether the information had been given to an authorized person and without causing prejudice to the security of the country.

 

Besides, it was not a question in this trial as to whether the acts committed were prejudicial to the safety of Canada but rather if the purpose was in itself prejudicial to the country. Now, this was a question of fact, of evidence within [**86] the exclusive jurisdiction of the jury.

 

As for the witness Shugar the evidence of the acquittal which the defence offered was certainly illegal. This needs no demonstration. If the Crown could bring in that other conspirators had pleaded guilty, it was because these witnesses gave evidence and consequently the evidence was direct and relevant. [*657]

 

To sum up, in conclusion, I say that save for the reservations that I have made in the course of my exposition, the evidence was validly admitted and that of the defence was legally restricted; even though certain illegalities could be found, they would be without any effect whatever against the appellant and they would have caused no miscarriage of justice. Direct evidence.

 

Even if the oral and documentary evidence of Gouzenko had been ruled out, the charge of conspiracy would nevertheless be proved by direct convincing evidence. This is proved particularly in the evidence of Boyer and, for some particular facts, in that of Mazerall and Willsher.

 

Confident that certain of my colleagues would elaborate the nature and character of this evidence submitted by Boyer, I will refrain from reproducing and analyzing the most salient passages. [**87] Let it suffice to note that Boyer, being in the service of the State within the meaning of the Official Secrets Act and knowing that the State refused to give such information to Russia, deliberately, whatever may have been his motive, at the request of the appellant himself, gave the information that Canada possessed an engine of war, scientifically efficacious as to its volume of production and use and different from those which the other countries seemed to have. He then enumerated to the appellant the chemical materials going into the manufacture of this powerful explosive bomb, and he finally pointed out, summarily, it is true, the proportions for the mixture of the various ingredients composing the formula for Torpex.

 

Boyer therefore gave confidential information to an unauthorized person and Rose solicited and obtained official secrets through an agreement, whether expressed or tacit it matters little, to furnish them illegally to Russia. Each one of them therefore committed an offence under the Official Secrets Act in the execution of an illegal agreement, in the realization of a criminal conspiracy.

 

The evidence was therefore conclusive that s. 573 of the Cr. Code must [**88] be applied to the accused and besides that he had, together with Boyer, transgressed notably the provisions of s. 4(1)(a), (3) that is, the offences (c) and (d) of the indictment.

 

Even if all the indirect or secondary evidence was illegal, even if the evidence based on the writing of Col. Zabotin, as to the legality of which I personally have not the least doubt, and finally, even if the evidence of Gouzenko be entirely ruled out, I reaffirm that it would leave us with direct peremptory proof which the jury could not evaluate other than it has. Its ver- [*658] dict is not only reasonable and logical but any other verdict would have been unreasonable and unjustified.

 

The defence surely feels that its argument can only be restrained and weak in the face of such direct evidence, for it shows that each one, both Boyer and Rose, committed the crime of conspiracy and at the same time committed a personal and particular offence against the provisions of the Official Secrets Act. So, the defence seeks to take cover under two allegations of law: (a) Boyer did not conspire, he had an innocent purpose; (b) Rose could not be guilty of conspiracy alone.

 

It is said that Boyer had a good [**89] intention. To my mind, that is confounding the cause and the motive in law. The latter could be praiseworthy, indifferent or reprehensible. It matters little, the cause of his agreement does not thereby become modified or excusable, because it originates in an illegality: forming an agreement with a person who could not legally be a contracting party, without being authorized. Thus, to commit theft in order to nourish one’s family in an imperative need can, from certain points of view, be an understandable motive, but the act remains nevertheless a theft.

 

Moreover, the Official Secrets Act not only does not require the finding or proof of mens rea but it does not accept a plea of good faith; it stamps as an offence every act which, by its nature, constitutes a prohibited communication.

 

In the face of all this evidence, who would dare utter a doubt as to the guilt of the accused? How can it be conceived that any other verdict could be rendered? I am absolutely convinced that the accused has had a just, and eminently equitable trial, that the verdict is in conformity with the evidence and the allegations of the indictment. I believe I should also emphasize that the appellant has had [**90] the special liberty of stating and elaborating all his grounds for complaint before this Court and through the production of a voluminous supplementary factum.

 

I will not assume the task of covering all the grounds of appeal raised by the learned counsel for the appellant. Many of them, the principal ones, have been analyzed in the course of the development from which I just drew a general conclusion. Nevertheless, one remark in forceful language by the learned counsel ad litem for the Crown, related by the Judge in his statement of the case, commands some consideration. The passage to which I refer reads as follows:

 

One of the final arguments, I think, of Mr. Cohen is that Gouzenko is not believable, being an accomplice, and that his [*659]  testimony, in part, does not make sense. That is, in a few words the contention of the defence.

 

The Crown contends that the existence of a spy ring, organized by the Russians, has been clearly proven, and, if the documents filed by Gouzenko and the statements therein were lies, why would Lunan, Gerson and the others not come here to deny them? Why have Miss Willsher and Miss Woikin pleaded guilty to the charge — why was not Sam Carr [**91] here to deny them? Why did they not proclaim their innocence?

 

Mr. Brais then discussed the evidence relating to the accused himself; he says that the discovery of the four ingredients for a new way to produce RDX was very important, and that Russia was after it, and that it was exactly what the accused got from Boyer; and in the documents it is shown clearly that the RDX formula was obtained from the Professor by Rose and went to Moscow through Sokolov.

 

Counsel for the appellant alleges that an indirect illusion or, according to his language, an “inference or implication” of the fact that the accused should have testified if he expected to have his innocence recognized must be found therein.

 

Section 4(5) of the Canada Evidence Act, R.S.C. 1927, c. 59, prohibits a Judge or counsel for the prosecution making any allusion to the fact that the accused has not offered any testimony. The jurisprudence has precisely stated that what could not be done directly could not be done by indirect comment, by deductions drawn from the accused’s silence, or from his failure to have witnesses for the defence testify (Reg. v. Corby (1898), 1 Can. C.C. 457).

 

Whatever may be the force of the evidence [**92] built up against the accused, the cases which are the authority, prove strict as to such illegality and consider only a new trial an appropriate and efficacious remedy. The former Chief Justice Duff makes some judicial comments on this matter in Bigaoette v. The King, 47 Can. C.C. 271, [1927] 1 D.L.R. 1147, S.C.R. 112, which reaffirm the following rule:

 

Where the natural and probable meaning taken by the jury from a part of the Judge’s charge is comment on the accused’s failure to give evidence, the fact that the comment is capable of another explanation will not avoid the necessity of there being a new trial.

 

Two questions must be resolved in regard to these considerations in the summing up: (a) To what did the Judge allude? (b) What did he say?

 

In summing up the two contentions or propositions of the Crown, the Judge stated that it endeavoured to establish first [*660] of all that a spy ring had been set up in Canada, composed of Russians and Canadians, and then, that the accused Rose was a part of it.

 

The defence, on the other hand, does not deny the existence of this espionage network, but it pleads that the accused did not participate therein and that his relations [**93] with Boyer could not be the basis of the offence of conspiracy, because both never had a common design, did not have the same object. Finally, the defence attacked the probity of the witness Gouzenko and maintained that his deposition is fantastic, at least in part.

 

Summing up the propositions of the prosecutor who affirms having clearly proved the existence of such Russian espionage system, the Judge stresses the fact that the Crown wonders why, if the documentary evidence of Gouzenko is a lie:

 

Why would Lunan, Gerson and the others not come here to deny them? Why have Miss Willsher and Miss Woikin pleaded guilty to the charge — why was not Sam Carr here to deny them? Why did they not proclaim their innocence?

 

Such seems to me to be the first proposition submitted by Mr. Brais, K.C., and the first category of the evidence which he quotes.

 

Without further transition and with care, the Judge began the statement of the second proposition of the learned counsel by saying: “Mr. Brais then discussed the evidence relating to the accused himself,” etc.

 

Such is the subject-matter synthesized by the Judge. The question now is to find the real meaning of this analysis and if there is [**94] only one meaning. In other words, could the jury deduce from this comment a conclusion that the accused should have testified or otherwise proved his innocence?

 

Were it not for the favour that one must accord a long and complex case, one would have difficulty in understanding why this remark of the learned counsel was disregarded because it could have grave consequences evident to all.

 

The process of elaboration by the Judge in his remarks to the jury, the technical structure and form of his speech rest upon a general and logical plan. From legal considerations, indispensable to the proof of the charge, he passes to propositions which link themselves one to the other and which lead logically to the encirclement of the accused.

 

Let us isolate the principal ones: (a) The accused is not bound to prove his innocence, it is for the Crown to prove his guilt; (b) the accused cannot be found guilty unless the Crown [*661] has proved the existence of an illegal plot for espionage purposes and also that he was one of the secret agents of such conspiracy; (c) if the accused received information of the nature of that provided by the Official Secrets Act, there is a presumption juris and [**95] de jure that he violated that Act and committed an offence; (d) upon the accused falls the onus of rebutting this presumption, by establishing that such information had been given to him “contrary to his desire.”

 

A first undeniable fact follows from this. When the Judge thus mentions the Crown, he refers at that time only to the question as to whether or not the espionage network had been proven and, in his search for the truth, whether Gouzenko is believable in spite of what the defence said of him. At this very time, when the Judge is relating this reasoning of the Crown, Rose has not yet been made a party to this spy system; the Judge has not yet made any allusion to him but takes up his case a moment later.

 

There are therefore two different propositions under analysis by the Judge: the one, general, the existence of espionage, the other, particular, the participation of the accused. The Judge pointed out the perfect division which exists between the two. An evident break in the continuity of his thought and of his expression becomes apparent.

 

In the literal sense of the words, the Judge recalls that the Crown is astonished that Lunan, Gerson, Sam Carr and the others had refrained [**96] from giving evidence and stating their innocence. Rose is not named in the group of absentionists. And if, for the duration of a second, he could create the impression of a direct allusion to Rose himself in the mind of some of the jurymen, such thought could not survive and must necessarily be dismissed when the Judge immediately proceeds to state what in the evidence may involve Rose as a participant in this plot.

 

There is no question in his comment of a double meaning, a double interpretation, having the same object. In one case, the Crown affirms the credibility of Gouzenko and the existence of an espionage system. This does not necessarily involve Rose; the other interpretation would have an entirely different object, that is, to establish a deduction that if Rose is not guilty he ought to come to proclaim his innocence. Can such a meaning be attributed to the Judge’s remark? Obviously, no.

 

Why then deviate too freely from the text in order to draw a presumption that s. 4(5) of the Canada Evidence Act has [*662] been violated, when the presumption is that the law has been respected unless one can reasonably show the contrary.

 

Furthermore, the learned counsel for the appellant [**97] made no objection to this comment. According to the previously cited case, Bagaouette v. The King, he was not bound to if this observation implied the silence of the accused. But when it was a matter of finding out if one meaning rather than another could logically be accepted by the jury, that is to say, might be acceptable to a man of common sense, of normal equilibrium, a singularly sure guide can be found in the attitude of appellant’s counsel. So alert, so shrewd in defending ad unguem the liberty of his client, throughout the trial, and so vigilant in raising proper objections, it is astonishing to note his silence here. Can it not be said that if he made no objection, it was because he did not understand it in the sense alleged as a ground of appeal. If then, he saw such a meaning in it, would he not have formulated an objection?

 

The general rule is that the absence of objection presumes the regularity of the procedure. Now, if he did not attribute a double meaning to this passage of the Judge, why demand or hope that a Court of Appeal would draw out a meaning other than that which, in his eyes, the jury must logically see? (R. v. Armstrong, 59 Can. C.C. 172, [1933] O.W.N. [**98] 24.)

 

Finally, I assert that if an offence is proven per ipsam as soon as a fact is established, because the Legislator has strictly expressed itself so, unless the accused does not prove the contrary or rebut the presumption raised against him, it is the duty of the Judge, in explaining the law, to tell the jury that the accused might be acquitted by denying such evidence and rebutting such presumption and that as he did not do so the charge became well founded. If the Judge does this, it impliedly follows that one can deduce therefrom an allusion to the failure of the accused to testify. And however, this comment is indispensable. Now, the Official Secrets Act sets up, inter alia, that anyone conspires against the State if he receives confidential information, unless it is proven that he had the authority to receive it or had received it against his desire. Whence it follows that a comment upon the existence of an espionage plot from which a secret agent did not seek to free himself by invoking the exculpatory clauses, seems to me to be within the scope of strict legality, when the Judge makes it in the course of his direction, likewise legal. Reg. v. Corby, supra, seems to me analogous [**99] in principle to my way of looking at it.

 

In conclusion, I remain with the firm conviction that there [*663] was no real prejudice in the course of this trial and that according to s. 1014 Cr. Code and the rules admitted in Boulianne v. The King, 56 Can. C.C. 338, [1932] 1 D.L.R. 285, [1931] S.C.R. 621, and Markadonis v. The King, 64 Can. C.C. 41, [1935] 3 D.L.R. 424, S.C.R. 657, the appeal must be dismissed. Appeal from sentence.

 

The appellant has also lodged an appeal against his sentence to six years’ imprisonment. For reasons which he has not explained, appellant’s counsel has not supported this appeal with any argument, so that it would seem arbitrary to us to revise a sentence that must be held just and equitable, because the appellant has not shown cause justifying any interference.

 

At the close of his argument on the principal appeal, counsel for the appellant made a verbal request, the object of which seems to be the desire to obtain a special order from this Court by virtue of s. 1019 of the Cr. Code. Counsel for the appellant points out that his client has been detained in the prison at Bordeaux since the date of his sentence. Does the appellant ask for this order [**100] by virtue of s. 1018? Does he ask a departure from this provision? What would be the effect of an order given under the provisions of s. 1019? Since counsel for the appellant did not support his request with any argument or any representation whatever, I see no reason to shield the appellant from the rules defined in ss. 1018 and 1019 of the Cr. Code.

 

For these reasons I would dismiss the appeal.

 

GAGNE, J. (translation

 

Approved translation of reasons for judgment which were originally rendered in French.*):—The appellant, a Member of the Parliament of Canada, was accused of having conspired with a certain number of Russians and other persons to procure for Russia documents and information, in contravention to the Official Secrets Act, 1939 (Can.), c. 49. The jury found him guilty and he was sentenced to six years in the penitentiary. He appeals to this Court from the verdict and the sentence.

 

I do not believe it necessary to recite at length the events which preceded this trial and which gave rise to it. I will just say that on September 5, 1945, Gouzenko, an employee in the Russian Embassy, quit this Embassy after having taken possession of a certain number of documents selected [**101] by him that evidenced the existence of a very extensive spy ring operating in our country as well as in those of our allies. Its object was to procure Russia the most valuable information as to munitions [*664] of war manufactured by us, movements and composition of the armed forces, etc.

 

Mr. Justice Bissonnette in his elaborate notes which I had the opportunity of reading, gives the reasons which determined Gouzenko to quit the service of his country in order to place himself at the disposal of Canada. Briefly, Gouzenko explains that having witnessed the enormous services rendered by Canada to his country by providing not only munitions of war but also materials and provisions for the relief of that Russian territory which had been invaded, he became disgusted with the underhand work that was required of him to the great prejudice of the country that was host to him and his confederates. He quotes a sentence of Zabotin, the head and organizer of the whole plot, addressed to his companions or assistants at a meeting held after Japan had decided to surrender. Zabotin told them all that, despite the end of the war, it was more than ever necessary to continue the work undertaken [**102] and he added: “Yesterday they were our allies, to-day they are neighbors, tomorrow they will be our enemies.”

 

It was about that time that Gouzenko decided to leave and began to gather the documents that were produced at the trial. After having tried several places, he finally turned over these documents to the Federal Police (R.C.M.P.) who in turn forwarded same to the Department of Justice to which they are subordinated.

 

It is apparent from the evidence of Gouzenko and the documents produced that about the month of June 1943 the Russian Ambassador, through the ministry of Major Sokolov, already had an organization to obtain the same information and even had established contacts with a certain number of Canadian subjects who supplied same to him. Upon his arrival in Canada and according to instructions received from the Bureau of Espionage in Moscow, Zabotin completely reorganized the service destined to procure the desired information for Moscow.

 

In a wing of the Embassy are set up a vault, some files and an incinerator to destroy documents of which they desire no trace to be left. It is there that Gouzenko will exclusively settle himself. Through special studies, he has previously [**103] become familiar with the English language and competent to transcribe into exceedingly complicated code the messages that were confided to him and to decipher those that were received. Most extraordinary security measures are taken to make inviolable that wing of the Embassy where work is carried out in the greatest secrecy: a steel door, windows with steel grills, a per- [*665] fect control so that no one could enter except Zabotin, Gouzenko and two or three others who are the nucleus of the espionage organization.

 

The entire service directed by Zabotin will then be an entity by itself, distinct from the Embassy and several documents evidence that if the economic and political information obtained may be communicated to the Ambassador, he must never know what is learned in regard to the war itself and the part Canada takes therein. Furthermore, when information of an economic and political nature is communicated to him, care must be taken not to reveal where it comes from. These are the instructions received from the “Director”, i.e. the Chief of the Moscow Bureau from which the whole espionage service is directed.

 

Zabotin and his aides immediately start working to extend [**104] as much as possible the branches already functioning. He writes notes to indicate how they are progressing. They are headed: “Before reorganization” and that is ex. P-30. We see the names of those who, henceforth, are considered as valuable helpers. Code names to designate them had already been attributed to these men. For example, Zabotin was called “Grant”, Rose “Fred”, Sokolov “Davie”, Gerson “Gray”, Miss Linton “Freda”, and Boyer “Professor”. Mention is also made of cover-names, such as “Green” who is described as working in a tank factory, “Galya” who occupied the apartment adjacent to Sokolov’s, but whom Gouzenko cannot identify.

 

The accused is there mentioned as being in contact with Sokolov under the direction of one “Molier” and as himself directing the “Montreal Group” composed of Gray who would furnish the details of shells and guns “by means of films” and “Green” who gives information only as to tanks. We also see there that Dr. Boyer was already furnishing information on explosives, laboratories, the formula RDX and the gas OV.

 

I must say immediately that the authenticity of this document as well as of all those turned over by Gouzenko and pointed out by him as being [**105] in the handwriting of Zabotin, Motinov and Rogov cannot be questioned. One day, these three persons went to a chalet kept by Col. Wood; in order to thank their host for his hospitality, they wrote their impressions in his diary and Col. Wood himself produces this book and identifies the handwriting. Such one of these documents pointed out by Gouzenko as being of one of these three persons has been compared with this writing and Dr. Fontaine positively swears that there can be no doubt about it — everything is really written [*666] by them. I point this out immediately, because otherwise one might believe that all that was made up by Gouzenko.

 

It is impossible to give even a resume of all that is found in the reports, notes and other papers written or signed by Zabotin, Motinov or Rogov. Suffice it to point out that one cannot help but be astonished at the vastness of the information that these men were able to procure from the relations that they succeeded in creating with either scientists, or men who could have access to the most confidential matters. It must be noted also that all those who furnished information are partisans of the Communist concept or active members of [**106] the Progressive Labour Party. It is also apparent that some of them were not anxious to offer their services to the Country until after the entry of Russia in the war.

 

Some of the documents are particularly rich with information. Exhibit P-32, for example, is a list dated January 5, 1945, of “Material sent to the address of the Director”. This reveals that plans, accounts of conversations, a number of copies of correspondence between departments and officials, copies of contracts dealing with the manufacturing of munitions of war, etc., were transmitted. We even find that two copies of letters written by the Canadian Ambassador at Moscow addressed to the Prime Minister of Canada, (Secretary of State for Foreign Affairs) have been transmitted to Moscow. These copies came from one Miss Willsher, an employee in the Office of the British High Commissioner, who had secured them. If this person, who gave evidence and who seems intelligent, should commit such an act, the information so obtained must necessarily have been very. important.

 

The espionage plot is therefore perfectly established. Besides it is not denied. The whole question is whether the accused is sufficiently linked with [**107] this formidable conspiracy.

 

Gouzenko states several times that Fred Rose, whose cover-name was at first “Fred” and later changed to “Debouz” was the organizer of the Montreal Group and that he was the person who had brought Lunan, Miss Willsher, Freda Linton, Boyer, Gerson and others into the “net” (according to the expression used in several documents). He convinced himself thereof by telegrams transmitted in code and by those received from Moscow which he deciphered. He convinced himself thereof also from the conversations he heard between the co-conspirators, that is, Zabotin and his assistants. He admits, however, never having seen Rose. It must be said, though, that it seems difficult to doubt the evidence of Gouzenko and, at any rate, it cannot be [*667] said that the jury erred in placing faith in his testimony. There is hardly an important fact as to which his statements are not corroborated, above all by the documents he produced.

 

At any rate, let us examine the evidence on Rose’s participation in this vast plot, outside Gouzenko’s statements. First of all, there is this report of Zabotin, produced as P-30, which reveals that the general direction was in charge of [**108] Rose. If that is really written by Zabotin, as proven without contradiction, how can one believe that it may be made up?

 

Besides, a large number of other documents refer to Rose almost in the same way. Exhibit P-98, of July 12, 1945, is a telegram from Zabotin to the Director which indicates that Debouz (the accused) “obtained particulars from conversation with officers who took part on Western Front.” The telegram adds that Debouz was elected a second time as a Member of the Federal Parliament, that Sam Carr and Tim Buck had been less fortunate and that there is nevertheless one member of this Parliament amongst the “corporators”, that is to say, the Communists.

 

In P-32, this list dated January 5, 1945, we find:

 

 Debouz  Notes  Conversation with Profess.

 

     dec. secr. session of

 

     Parliament.

 

The “Professor” is Boyer and later on he will relate the conversations that he had with Rose as to RDX. It evidently referred also to the secret session of Parliament of November 25, 1944.

 

Exhibit P-33-E, written in Rogov’s hand, dated June 15, 1945, refers to one Veale who offers his services as a spy and whom they hesitate to accept. In the margin we find: “Details will [**109] clarify through engineer Chob — a chemist — friend of Sam and also through Debouz, both along the trade union line.”

 

When a secret mission of one Berman, to London, is organized (ex. P-81) they prearrange all the details of the meeting between Berman and the accomplice; and they add that should the meeting prove impossible, Berman will give his address to his wife for Debouz for ultimate transmission to the espionage center.

 

Exhibit P-36 of June 12, 1945, discloses that the conspirators had decided to associate one Steinberg, an expert in statistics, then in Washington, His code name is “Berger”.

 

Debouz to tie up with Berger and depending on circumstances make a proposal to work for us or for the corporation. Contact in Washington with Debouz’ man. To work out way for report in [*668]

 

 person, and to telegraph. To give out 600 doll. If Debouz is unable to leave for the U.S.A. then a letter from Debouz to Berger containing a request to assist the man delivering the letter to Berger. (Rose).

 

Debouz did not go to the United States but Freda Linton went on June 25th. The inquiry discloses that no one knows what became of Freda Linton.

 

P-73 is a long report in Gerson’s handwriting, [**110] one of the members of Rose’s group. Numerous technical details are therein disclosed, especially regarding RDX/TNT explosive, details which Rose had undertaken to obtain from Dr. Boyer, one of the scientists working on its fabrication, in order to communicate same to Russia, as we will see from Dr. Boyer’s testimony.

 

However, the message of the Director, Exhibit P-48, addressed to Zabotin under the name of “Grant” who, through his signature at the bottom, certifies that he has received it on August 14, 1945, indicates that Moscow is not yet satisfied. Other technical details are required and they specify which ones, especially on the use of “picrate and nitrato-nidine”. The same day, Grant (Zabotin) replies that the task will be assigned to Gray, Bacon and Professor Boyer “through Debouz” (Rose). He expects meeting Debouz by the end of the month. On the 28th, Grant telegraphs again that the work asked for is under way, they have despatched films in regard to the material and correspondence referring to the “double shell” which, the Canadians say, have been very effective in Europe.

 

Finally, if we admit as exact Gouzenko’s statement, confirmed by the telegrams of Zabotin, that Lunan [**111] had been led by Rose to join the spy ring and was a member of the Rose group, it is apparent from the numerous exhibits that this Rose’s agent was one of the most active if not the most effective agent of all those enrolled by Zabotin and his group.

 

Everything that came from Lunan was found by Gouzenko in a file bearing the name of “Back” in the secret office already mentioned. These documents are not in Lunan’s handwriting but written on his typewriter. This typewriter was found in London, by Scotland Yard, completely dismounted, part at the residence of Lunan’s father, part at his brother’s. It was however possible to identify the type from the serial number and to establish that that was the machine that had been sold to Lunan two years previously.

 

The letter produced as P-31-D, found by Gouzenko in the same file bearing the date of March 28th and beginning with the words “Dear Mother and Father” is particularly eloquent [*669] as to what is obtained from Badeau (Durnford-Smith), Bacon (Halpern) and Bagley (Mazerall). The words “conspiratorial nature” are even used.

 

I cannot refer to all the documents that mention Rose’s name either as organizer or as assistant of the espionage [**112] service operating in our country.

 

I come to the testimony of Dr. Boyer whom Zabotin, in his report produced in part as P.30 and in part as P-71, describes as follows:

 

 3. Professor — Frenchman. Well known chemist, about 40 years. Works in McGill University, Montreal. Is the best specialist on explosives on the American continent. Gives full information about explosives and chemical plants. Very rich. He is afraid to work. (Gave the Formula RDX. Up to the present there is no valuation from the master). Gave materials on poison gaz. (O.V.).

 

The dossier reveals that Zabotin was already well informed. Dr. Boyer, heard as a witness for the prosecution, tells of his relations with Rose, his sympathy for the Communist Party and the material help he gave for the two elections in which the accused ran. Between the end of the years 1943 and 1944 he says that he had four interviews with Rose who then questioned him about the explosive RDX. He seems to have been one of the principal, if not the principal artisan in the development of this particularly powerful explosive. At each of these interviews, Rose questioned him about the material used and the progress made. These interviews took [**113] place at Pose’s residence and always at the latter’s invitation. Inter alia he says (P. 633 d.c.): “We spoke of hexametromythalen, amonium nitrate, acetic acid and anahydride”. These four ingredients seem to form the compound RDX.

 

Boyer says that there was a fifth element which he did not disclose to Rose because he did not know it himself. It is the acid used by the engineers in the manufacturing of this explosive in large quantity. The chemists, he says, had nothing to do with it. It is very strange that Boyer pretends that he gave this information to Rose merely in order that the latter should induce the scientific delegation, then in the country according to Boyer, to insist to obtain all the details officially. He believed, he says, that it was in the interest of both Russia and Canada that this powerful engine of war should be known by all the allies.

 

Let us note meanwhile that certain documents produced by Gouzenko disclose most of the use made by Canada of RDX [*670]

 

as well as of other munitions of war. Boyer pretends that he had no intent prejudicial to the interest of the country. One wonders then why he waited for Rose’s invitation and why he gave information only [**114] upon being questioned by the accused? Furthermore, why was it necessary to give all these technical details in order to make the Russian scientists understand the importance of this shell and its destructive power? Why, above all, use an intermediary like Rose, a mere electrician, an ignoramus in these matters, as Boyer says?

 

The witness says that it was at the interview before the last or at the last one that Rose took some notes on an envelope. These notes must have been rather complete or else Rose is endowed with a remarkable memory, because, as indicated by Zabotin’s reports, telegrams received and despatched, Rogov’s and Motinov’s notes, all produced by Gouzenko, details of very accurate nature were supplied to Moscow.

 

In my opinion, that cannot be denied; and then, who could have supplied these details, either to Gray, directly to Zabotin, or to another spy, so that they reached Russia, if not the accused himself?

 

It does not seem necessary to go any further. All this proves clearly the existence of a great espionage plot organized here in the interest of Russia, a plot in which the accused was one of the most active agents.

 

It remains for me to consider whether these facts [**115] that I have just recited have been legally proved and whether the appellant is entitled to ask that the verdict be quashed to avoid a miscarriage of justice.

 

In the first place, he maintains that all the evidence given by Gouzenko and by the documents which he brought is illegal and should not be admitted because it is contrary to the rules of public international law by virtue of which every diplomatic agent as well as his belongings enjoy an immunity which is of public order and which, as a result, the Courts are bound to enforce. He cites the Statute of 1708, 7 Anne, c. 12, named: An Act for preserving the privileges of Ambassadors and other public Ministers of Foreign Princes and States. The preamble of this Act recites that the Russian Ambassador had been arrested and detained by force for several hours, contrary to the rights of men and to the prejudice of the rights and privileges of Ambassadors and other Public Ministers. All writs and proceedings brought against the Ambassador by any person are there declared null and void to all purposes of law. And, in order to prevent the occurrence of similar proceedings, it adds: [*671]

 

That all Writs and Processes that shall [**116] at any Time hereafter be sued forth or prosecuted, whereby the Person of any Ambassador, or other publick Minister of any Foreign Prince or State, authorized and received as such by her Majesty, her Heirs or Successors, or the Domestick, or Domestick Servant of any such Ambassador, or other publick Minister, may be arrested or imprisoned, or his or their Goods or Chattels may be distrained, seized, or attached, shall be deemed and adjudged to be utterly null and void to all Intents, Constructions, and Purposes whatsoever.

 

The following section imposes a penalty upon everyone and even upon the attorney who would instigate any proceedings in contravention to this statute. But s. 5 adds that if it involves a “Servant of an Ambassador or Publick Minister” such penalty can be imposed only if his name has been registered in the office of the Secretary of State and transmitted by him to the Sheriffs of London and Middlesex in order that it be posted there. This statute does not go any further.

 

The appellant maintains that it is in conformity with the English common law existing at that time and that it applies to this country.

 

Upon this whole question of diplomatic immunity, I will simply [**117] refer to the complete study made by Mr. Justice Bissonnette in his notes and to the opinions that he expresses, which I entirely approve. I would only like to insist somewhat upon the fact that Gouzenko, according to the evidence, is not a diplomatic agent and that the documents that he produced are not documents of the Embassy. Although, when examined on voir dire by the counsel for the defence, Gouzenko says that Zabotin and the others were attached to the Embassy and that the documents were the property of the Russian Embassy, the continuation of his testimony as well as the documents establish that Zabotin as well as himself, had not been sent to this country as diplomatic agents but solely to take charge of the Bureau of Espionage, to reorganize and expand it.

 

This Bureau had its headquarters in the building occupied by the Embassy, but I have already shown that Gouzenko was under the exclusive direction of Zabotin and that the latter although apparently bearing the title of Military Attache, had no diplomatic function. That is well proved by the fact that they never communicated with the Minister of Foreign Affairs in Russia but always with the “Director”, that is to say, the [**118] one who in Moscow had charge of this whole organization of secret information and espionage. [*672]

 

I have already referred to ex. P-47 which contains the instructions of the Director to Zabotin, forbidding to give any information whatever to the Ambassador save on economic and political matters, but in such a case the source of this information was not to be disclosed to him.

 

The only fact that could support the contention that Gouzenko and the documents taken by him did enjoy diplomatic immunity is that the Bureau of espionage was situated in a wing of the Embassy. This seems to me wholly insufficient. I believe that, we can even conclude from the evidence adduced — and we cannot go beyond the record — that the Ambassador himself did not have access to the room where these documents were prepared and kept.

 

For this reason and for those recited at length by Mr. Justice Bissonnette, I am of the opinion that the appellant cannot invoke the diplomatic immunity that would be required to have this evidence declared illegal.

 

The second argument brought forward by the appellant is that Gouzenko’s evidence as well as the documents produced by him; are only hearsay evidence. This [**119] is the ground invoked by paras. 12, 13 and 16 of the notice of appeal. At the trial, the objection was formulated as follows:

 

First. We object to the production of all documents which do not emanate from the witness himself;

 

Second. Also to all documents stating facts of which the witness Gouzenko had no personal knowledge.

 

The appellant himself quotes as authority the judgment in R. v. Container Materials Ltd., 74 Can. C.C. 113 at p. 128, [1940] 4 D.L.R. 293 at p. 307 [affd 76 Can. C.C. 18, [1941] 3 D.L.R. 145; affd 77 Can. C.C. 129, [1942] 1 D.L.R. 529, S.C.R. 147]:

 

A foundation should first be laid by proof sufficient in the opinion of the Judge to establish prima facie the fact of the conspiracy between the parties, or at least proper to be laid before the jury as tending to establish such fact. The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy in furtherance of the original concerted plan, and with reference to the common object, is in contemplation of law the act and declaration of them all, and is therefore original evidence against each of them. Oft-times for the sake of convenience, [**120] the acts or declarations of one are admitted in evidence before sufficient proof is given of the conspiracy, the prosecutor undertaking to furnish such proof in a subsequent stage of the [*673] case. The mode of proceeding rests in the discretion of the trial Judge.

 

He concludes from this judgment, as well as from other authorities that he cites, that if hearsay evidence is allowed in a case of conspiracy, it can only be brought after the conspiracy itself is clearly established and the accused is connected with it. The following authority, found in his factum and reproduced from Tremeear’s Criminal Code, 5th ed., p. 652, as being the decision in Richards v. Verrinder (1912), 2 D.L.R. 318, 17 B.C.R. 114, is far from being so positive:

 

It was laid down in a civil case, and the rule seems to be equally applicable to criminal prosecutions, that the difficulty of giving complete proof of the conspiracy before the evidence of words spoken and acts done was allowed to be applicable to individual defendants, might be overcome in practice by the judge receiving, provisionally, that which was clearly evidence against at least one of them, and then, at the conclusion of plaintiff’s [**121] case, ruling how much of it might be considered as against each of the alleged conspirators.

 

In fact, it is evident that proof of a plot between several persons would generally be impossible if it had to be established directly. It generally results from a certain number of facts and acts executed by co-conspirators, often separated from one another and sometimes even without apparent link between them. If, from all these facts taken as a whole, there is evidence of a “common design” to commit an illegal act, the jury may declare each person participating therein guilty of conspiracy. But I repeat one must generally proceed by stages, in proving acts which sometimes, considered separately, have hardly any importance but when connected with some other acts, will constitute the “common design”. That is how is justified the proof of acts and declarations of conspirators other than the accused.

 

The appellant calls all the evidence given by Gouzenko and his documents hearsay. But, is it really hearsay?

 

Gouzenko lived for more than two years in what is recognized as the centre of the espionage service. He has never seen Rose nor any of the Canadian conspirators but he did see in action [**122] the other conspirators, i.e. the actual organizers of the plot. He witnessed their actions, because I believe that the reports made to Moscow, the instructions received, the information furnished in writing by certain Canadian conspirators, are acts “in furtherance of the conspiration” and, consequently, are not mere statements.

 

All that he had knowledge of does not appear in the writings [*674]

 

that he produced because he was not able to take away all the documents, but he describes their general meaning and even gives certain details. All that, which is not hearsay, clearly establishes the plot.

 

There remains the conversations that he heard between Zabotin, Rogov, Motinov and the others in which these third parties, who are not heard as witnesses, must have related facts not otherwise established. But I submit that these conversations form part of the conspirators’ acts as a whole and consequently when Gouzenko reports them he establishes the sequence of these acts. The trial Judge considered this evidence as circumstantial evidence. He clearly defined the elements of such an evidence and indicated what probative weight it carries. I must say that these documents explained [**123] by Gouzenko constitute a mass of evidence so convincing that I cannot imagine how a jury could resist it.

 

The appellant recognizes that Dr. Boyer directly proves an offence in contravention to the Official Secrets Act, but he maintains that this evidence alone without the aid of hearsay evidence, allegedly illegal, is absolutely insufficient to establish the conspiracy. There is no doubt that the evidence of Boyer proves a crime, that is to say, the fact of supplying an unauthorized person with information that may endanger the security of the State and for this other person to receive such information when he had no authority to be informed of same.

 

The appellant adds that the evidence of the crime is not evidence of the conspiracy and he pretends that there never was an understanding between Boyer and Rose to commit an illegal act.

 

I have already stated that the motive invoked by Boyer to justify the disclosure of this information to Rose is hardly plausible. The trial Judge was right in informing the jury that it could accept part of Boyer’s deposition and reject the rest. He evidently meant to reject the alleged motive or suggested purpose that Boyer pretended that he had when [**124] he revealed this information.

 

Now, the appellant maintains that Boyer only wished to induce the members of the Russian Scientific Delegation to request this information officially, while Rose wanted it for the sole purpose of imparting it to Russia. There would be therefore, he says, no “common design”. If we put aside the excuse given by Boyer, the result is necessarily a “common design”, that of supplying information about RDX to a foreign power. There was therefore a conspiracy, even if two persons were [*675] alone, but there cannot be any possible doubt if we consider what was plotted for the same purpose by the other individuals named in the indictment as co-conspirators.

 

The appellant’s third argument to have the verdict quashed is that the evidence of Gouzenko, like that of Boyer, Wolkin, Mazerall and Willsher, was evidence of accomplice, and that the trial Judge in his charge has not sufficiently instructed the jury as to the probative force of such evidence.

 

This leads me to examine the charge of the Judge upon this particular point. I must first say that the Judge perfectly defined what is an accomplice in law:

 

You no doubt know what an accomplice is. He is a [**125] person associated with an accused in committing or attempting to commit a criminal offence of which the accused stands charged. An accomplice is generally a companion of the accused in the commission of the offence of which the accused is charged.

 

Then, he tells the jury that it was for them and not for the Judge to decide whether a witness is an accomplice or not. He adds: “In this case you will have to decide whether Dr. Boyer, for instance, also Gouzenko, are accomplices.”

 

After speaking of the proceedings already instituted against Boyer, he concludes: “So you can see the reason why you can conclude that he is an accomplice.” But, a little further, he mentions the following:

 

However, in this case, in so far as Dr. Boyer is concerned, you are and I am well at case, because defence counsel, Mr, Cohen, has said that Dr. Boyer told the truth, so what I said about the evidence of an accomplice becomes less important as far as Dr. Boyer is concerned, because it is admitted that he said the truth by the defence.

 

He deals with Gouzenko’s case in a slightly different way. This is what he says:

 

As far as Gouzenko is concerned, it might be harder to say, but it is for you to decide. [**126] He said that for a long time before the 5th of September last he had decided to leave the Russian Embassy, because he could not stand the espionage activities that were going on. I don’t think he was in any way very active in his work, but rather he was executing, in a passive way, the orders that were given to him by his superiors. But, on the other hand, he was working for months in the very center of all the spy activities. Could he be charged with the offence with which the accused is charged? I think he might, but it is for you to say whether he is an accomplice or not.

 

He therefore indicates that Gouzenko might be an accomplice, although that is far from certain. As long as he was under Zabotin’s direction, he only fulfilled his duties, [*676] that is to say, executed the orders that were given to him. Once out of the Embassy, he behaved unlike an accomplice. At any rate, the appellant cannot complain of the opinion expressed by the Judge.

 

There remain the three other witnesses whom the Judge did not mention specially. It seems to me that his duty to instruct the jury does not go as far as examining in particular the case of each witness who might be considered an accomplice. [**127] The Judge fulfilled his duty when he explains what an accomplice was, the consequences ensuing, and tells the jury that it was for them to decide whether or not there was complicity in each case. At any rate, I do not believe that this can be invoked as a sufficient error to affect the verdict.

 

Fourthly, (I must point out that I am not following the order in which the grounds of appeal are set out in the notice of appeal) the appellant complains that the deposition given by Gordon Lunan at the preliminary inquiry would have been illegally read to the jury at the trial. It appears that this witness, Gordon Lunan, called by the Crown to give evidence at the trial, refused to take oath. Thereupon the Crown moved that the deposition he had given at the preliminary inquiry be produced and read to the jury and this motion was granted. This is the subject of para. 18 of the notice of appeal which reads as follows:

 

That the learned trial Judge erred in law in permitting the reading to the jury, over the objections of the defence, of part of the testimony given by one Gordon Lunan, at the preliminary inquiry of the appellant herein, such testimony being inadmissible in view of the fact [**128] that the Crown had not shown that it could so do in law.

 

Objection was duly made to the respondent’s motion, and that in the absence of the jury. Then upon its return the Judge explained why he admitted the evidence. Now, at the preliminary inquiry. Lunan had begun to give testimony, but at a certain moment, he refused to reply. In his factum the appellant states that on March 25, 1946, Lunan had replied to a question put by the Crown Prosecutor conducting the preliminary inquiry: “I never met anyone identified or recognized by that name (Rogov)”. The Crown then asked him: “Did you meet one who told you to know him only as Jan?” And it is there that Lunan refused to answer, although the Court had offered him its protection. Other questions were put to him but in vain.

 

The Deputy Attorney-General then asked that the witness be declared guilty of contempt of Court and kept under guard, [*677]

 

from week to week, until he decided to answer, which was granted. On the 26th he was brought back into Court but persisted in not replying, and the Crown then declared its inquiry closed. The defence did not intervene.

 

I am not convinced that Lunan’s short testimony is sufficient to argue [**129] that it influenced the jury in its decision, but in any event, the appellant bases his objection upon that part of s. 999 Cr. Code which requires that upon refusal of a witness to reply, the deposition that he gave at the preliminary inquiry may be read if his counsel, if present, had had full opportunity to cross-examine the witness.

 

It appears from the record of the preliminary inquiry that the counsel for the accused was actually present; what then prevented him from cross-examining Lunan on the facts he had consented to testify? Perhaps Lunan might have refused to answer even the questions of the counsel for the accused, but, at any rate, the latter could have tried to cross-question. It is certain that the Judge would not have refused this right and perhaps Lunan would have been less refractory to his questions than to those of the Crown.

 

I am far from suggesting that the counsel for the defence was wrong in not putting any questions. On the contrary, this is probably very clever. He, however, had the opportunity, the full liberty, of doing so as long as he was not refused the permission. Therefore, it was duly that the reading of Lunan’s deposition was permitted.

 

As for the [**130] Shugar incident, that is to say, the allegation of the appellant that he was prevented from proving that Shugar, mentioned by Gouzenko as a conspirator, had been acquitted at the preliminary inquiry, it seems to me sufficient to quote the question that was put to Gouzenko: “What was the result of the preliminary inquiry of Shugar?” The objection made by the Crown was maintained. How can it be sustained that this question, the only one put on this point, was legal? What was Gouzenko’s competence to testify on such a fact which should necessarily be revealed by a judgment? I do not believe it necessary to stress the fact further.

 

The last complaint formulated by the appellant in regard to the evidence itself is that he was prevented from proving through the witness Wald that the acts of the accused, as established at the hearing, were not prejudicial to the interest and security of the country. This witness Wald calls himself a professor of Christian Ethics in the State of New Jersey, U.S.A. He would have taught in theological schools in New [*678]

 

York and Boston and given lectures in the United States, Canada and even in Oriental countries. He affirms having made certain visits [**131] to Russia and having studied the Soviet regime in Russia. He was asked what the military situation was in 1942, and, on this question, he begins to tell how it was the resistance of Russia that made the war turn to the advantage of the allies. He refers to messages between the Chiefs of State, etc. Objection is made to all this evidence as being hearsay and mere theory, and the objection is maintained. It suffices to imagine the uncertainty of such evidence and the inquiry that would have been necessary to refute same, to realize its illegality.

 

Mr. Justice Bissonnette discusses this allegation of the appellant more at length, and I will simply refer to his notes.

 

The appellant then invokes several defects in the form or rather of procedure which he pretends to be important enough to justify the quashing of the verdict

 

The first one is want of authorization from the Attorney-General of Canada which he invokes as follows in his grounds of appeal:

 

(6) That the so-called authorization to prosecute the appellant given by the Attorney-General of Canada, and a condition sine qua non precedent to such prosecution under the terms of the Official Secrets Act was insufficient, illegal, [**132] null and void, and that there was therefore in law no such authorization.

 

The text of s. 12, which requires this authorization for every prosecution taken pursuant to the Official Secrets Act, is recited at length by Mr. Justice Barclay in his notes.

 

In fact, the Attorney-General gave two consents, one dated March 14, 1946, and the other dated April 6th following. Both are worded the same:

 

Consent is hereby given by the undersigned, the Attorney-General of Canada to the prosecution of Fred Rose, electrician of the City of Montreal, Province of Quebec, for offences under the Official Secrets Act, namely, violation of s. 3(1)(b) and (c), 4(1)(a), (b) and (c), 4(2) and 4(3) of the said Act and for conspiracy to commit the same.

 

Dated at Ottawa this 14th day of March A.D. 1946.

 

   Louis S. St-Laurent,

 

   Attorney-General of Canada.

 

The second consent was received together with a covering letter from the Minister of Justice which includes the following sentence: “I understand that you require this in view of the decision of the Attorney-General of Quebec to proceed by way of [*679] preferred indictment.” This is posterior by two days to the complaint which is [**133] dated April 4th.

 

This lack of authorization was invoked by the appellant with other grounds by a motion to quash the indictment. The trial Judge dismissed the motion and, in regard to this ground invoked by the accused, he decided that since the indictment was for conspiracy and not for a crime provided for by the Official Secrets Act, the authorization was not necessary, and that at any rate this authorization was sufficient.

 

The appellant evidently maintains that since the object of this essential formality is to prevent prosecutions which might have considerable political repercussions, without the consent of the Crown’s representative, the text had necessarily to be applied to the indictment for conspiracy to commit one of the acts provided by the law, and such also was the Crown’s opinion since it had required the authorization and produced it.

 

It does not seem to me necessary to decide whether or not the appellant is right on this point, because I have no doubt that the authorization given is sufficiently precise. To be convinced thereof, from my point of view, it is sufficient to read the sections and parts of sections to which the authorization refers. Mr. Justice Barclay [**134] in his notes discusses at length this question which is truly important, cites the jurisprudence which applies to same and I do not believe it necessary to stress this point further.

 

The appellant then attacks the form of the indictment which he says was illegally redrawn by the trial Judge and would be “multifarious, illegal, null and void”. He adds that, at any rate, the motion for particulars that he presented before the opening of the trial should have been granted.

 

These three grounds of appeal must be discussed together, and they have been so dealt with by Mr. Justice Barclay, because they necessitate an account of the procedure adopted at the beginning of the trial.

 

The following is the text of the original complaint:

 

The Attorney-General of Our Sovereign Lord the King George the Sixth, for the Province of Quebec, doth prefer the present formal charge to wit:—

 

Fred ROSE at the City of Montreal, District of Montreal, and elsewhere in the Province of Quebec, and the Dominion of Canada, from June 3rd 1939 to September 6th 1945, did commit indictable offences in that he did unlawfully.

 

(a) for purposes prejudicial to the safety and interest of Canada obtain, collect, [**135] record, publish and communicate to other [*680]  persons sketches, plans, models, articles, notes and other documents and information which were calculated to be and intended to be directly and indirectly useful to a foreign power, to wit, the Union of Soviet Socialist Republics;

 

(b) having in his possession and control sketches, models, articles, notes, documents and information which related to and were used in a prohibited place and something in such a place and which had been entrusted in confidence to him by persons holding office under His Majesty and which he had obtained and to which he had access owing to a position as a person holding and having hold office under His Majesty and as a person who held or had held a contract made on behalf of His Majesty, and a contract the performance of which in whole or in part was carried out in a prohibited place, and as a person who was or had been employed under a person who held and had held such an office and contract did:—

 

— communicate sketches, plans, models, articles, notes, documents and information to a person other than a person to whom he was authorized to communicate it, and a person to whom it is in the interest [**136] of the State his duty to communicate it:

 

2. — use information in his possession for the benefit of a foreign (country) power, to wit, the Union of Soviet Socialist Republics, and in other manners prejudicial to the safety and interest of the State:

 

(c) — receive sketches, plans, models, articles, plans, notes, documents and information knowing and having reasonable ground to believe at the time when he received them that the sketches, plans, models, articles, notes, documents and information were communicated to him in contravention of the Official Secrets Act, 3 George VI, Chapter 49.

 

(d) — having in his possession and control sketches, plans, models, articles, notes, documents and information relating to munitions of war, communicate them directly and indirectly to a foreign power, to wit, the Union of Soviet Socialist Republics and in other manners prejudicial to the safety and interest of the State:

 

(e) — conspire with one Colonel ZABOTIN alias GRANT, one Major SOKOLOV alias Davis, (suivent vingt noms de pretendus conspirateurs) together and with one another and with other persons to commit the foregoing indictable offences:

 

   M. L. DUPLESSIS,

 

   Attorney-General [**137] for the Province of Quebec.

 

I, the Attorney-General for the Province of Quebec hereby [*681] require that the above mentioned charges against the said FRED ROSE be tried by jury.

 

   M. L. DUPLESSIS

 

  Attorney-General for the Province of Quebec.

 

  Quebec the 4th day of April 1946.

 

On May 7th counsel for the defence presented a motion for particulars to paras. a, b, b(2), c and d of the indictment. He asked for particulars of the information, plans, articles and other documents in question and that the dates be indicated. He did not mention para. e, which contains the charge of conspiracy.

 

After hearing the parties on this motion, counsel for the defence presented another motion asking for a separate trial upon each one of the counts of the indictment. The Court granted this latter motion and ordered the Crown to proceed first on the conspiracy charge. As for the other motion, the proces-verbal says: “The motion for particulars remains in the record.” Then the Court adjourned until the 8th and later until the 28th of May, the date of the opening of the trial.

 

After the judgment ordering the Crown to proceed on the conspiracy charge alone, counsel for the defence [**138] did not present any other motion for particulars.

 

On the 28th, after the formation of the jury, the clerk read the indictment in conformity with the order of the Judge to proceed on the charge of conspiracy and consequently to amend this indictment. He then began to read para. e: “(e) conspire with one Col. Zabotin, alias Grant, one Major Sokolov alias Davis (the names of twenty alleged conspirators follows), together and with one another and with other persons to commit the foregoing indictable offences.”

 

Then, when he began to read paras. a, b, b(1), b(2), c and d, as being the offences which the accused had plotted to commit with others, counsel for the appellant objected. He asked that only para. e be read, “pretending that the count in the indictment must be complete in itself and no reference can be made to any other part of such indictment.” He evidently maintained that para. e could not be completed by joining thereto the previous paragraphs to which he referred.

 

I thought it advisable to indicate how these three grounds of appellant’s complaint were presented, but I do not think it necessary to discuss them, after the complete study made thereon by Mr. Justice Barclay. [**139]

 

It is pointed out that the appellant does not complain of the order of the Judge to proceed only on the charge of conspiracy; [*682] neither does he pretend that the Judge having so decided, he did not have the right to amend the charge. Now, if the Judge had this right, it seems to me that necessarily the charge had to be read as the clerk did, that is to say, that paras. a, b, b(1), b(2), c and d became incorporated with para. e to make a whole with this paragraph.

 

As for the particulars, even if it could be sustained that they should have been granted, although the indictment were reduced to para. e, with the indication of the offences which were the purpose of the conspiracy, I do not believe that this Court should interfere, according to an authority cited by the appellant himself:

 

The granting or withholding of an order for particulars is within the discretion of the trial judge, the discretion being a strictly judicial one, to be exercised with reference to the circumstances of the particular case. ‘The accused is not entitled to particulars as a matter of right and the ruling of the trial judge upon the motion will not be disturbed by an appellate court when such [**140] discretion has not been abused’.

 

(R. v. Griffin, 63 Can. C.C. 286, [1935] 2 D.L.R. 503, 9 M.P.R. 84, referred to in Tremeear on p. 1073.)

 

It appears that before the hearing counsel for the accused already had the depositions taken at the preliminary inquiry, what, pursuant to s-s. (2) of s. 860 of the Cr. Code should be taken into account by the Court. Furthermore, he had the right to obtain copies of these depositions pursuant to ss. 691 and 894.

 

The trial continues for several days and at no time does the defence complain that it could not foresee the evidence that was given. It is even established that copies of documents and other exhibits were supplied each day to the counsel.

 

The object of the motion for particulars, in criminal as well as in civil cases, is to put the adverse party in a position to prepare his evidence.

 

The whole object of particulars is to enable the accused to properly prepare his defence in cases where the indictment though correct in form and sufficient to inform or apprise the accused in general terms of the charge against him is yet so indefinite in its statements as to the particular charge or occurrence referred to that it does not afford an [**141] accused a fair opportunity to prepare his defence or procure his witnesses.

 

(R. v. Griffin, 63 Can. C.C. 286 at p. 292, [1935] 2 D.L.R. 503 at p. 508, 9 M.P.R. 84.)

 

The Judge who presides at the trial is in a position to decide, as the hearing proceeds, whether the defence could suffer any prejudice whatever through insufficiency of the particulars. It [*683] seems clear to me that such a prejudice does not exist in the present case.

 

It remains to consider the objections to the charge to the jury. I believe they may be summed up under five headings as follows:

 

1. The Judge stated the object of the charge, that is the conspiracy, in an ambiguous manner, so that the jury might believe that the accused could or should be convicted solely on the evidence that he had committed an offence under the Official Secrets Act.

 

2. All the evidence of Gouzenko as well as the documents he produced constitute only hearsay evidence and the Judge treated it as circumstantial evidence which is quite different.

 

3. The Judge said that, in his opinion, Gouzenko could probably have been arrested for the same offence of conspiracy but did not say that that made him an accomplice. Neither did he [**142] tell the jury that Willsher and Woikin were accomplices.

 

4. Certain remarks of the Judge impliedly censured the accused for not having given evidence.

 

5. In his study of the evidence and in setting out the facts, the Judge committed certain errors which must have caused prejudice to the accused.

 

Before examining each one of these objections, it must be said that the charge to the jury must be considered as a whole and not by selecting extracts here and there.

 

It has been repeatedly laid down that the judge’s charge to the jury must be considered as a whole, and will not be subjected, on appeal, to a minute scrutiny. ‘To say that we must set aside the verdict because we do not agree with every word of the summing up is impossible’.

 

(R. v. Ryder (1913), 9 Cr. App. R. 100 at p. 104.) [Tremeear, p. 1196]

 

Now, this charge on the whole is remarkable for its clarity, its truly juridical expose of the rules determining respective functions of Judge and jury, its definition of the crime of conspiracy, its remarks upon the methods of proof of such a crime, upon the distinction between the offence of conspiracy and those which are its subject, and finally the very wise warnings to the [**143] jury as to their obligation to judge only upon the evidence given before them without taking into account what they may have read or heard outside.

 

What the appellant invokes as the first ground of objection to this charge and the argument he deduces from the citation of several extracts of the charge to the jury make it evident how important it is for the Court of Appeal not to stop on any [*684] particular details but to have a general view of what the Judge said and represented to the jury.

 

On p. 1010 of the joint record, the Judge tells the jury for the first time that the prisoner is accused of the offence of conspiracy and of no other. In the following paragraph he gives the definition.

 

Conspiracy has been defined as being the corrupt agreeing together, or the combining together of two or more persons, to accomplish some unlawful purpose — something illegal. So you can see that the essential element of conspiracy is the agreement of two or more persons to commit something illegal; the gist of the offence is the agreement, the understanding that exists between the parties.

 

On the following page he points out the allegation of the Crown that the accused has committed [**144] “the substantive offence or overt act”, that they are not to concern themselves about it. “You have only to say whether there was an understanding between him and the others, an agreement amongst them to obtain this information against the provision of the Official Secrets Act.”

 

Further on, he states that it is very seldom that direct proof can be offered. It is, he says, generally a matter of deduction. Proof of conspiracy will be found in the evidence of the acts of the conspirators and even “from some of their statements”.

 

So you can see, gentlemen, that you can group the detached activities of the conspirators severally and view them as indicating a concerted purpose on their part as proof of their alleged conspiracy. If the overt act is proven, you can infer from it the prior agreement.

 

Finally, he examines each one of the offences provided by the Official Secrets Act and which would be the aim of the conspiracy. He comes to the point, of course, of saying in what may consist the guilt of some determined offence, but it is easy to understand, and the jury must necessarily have done so, that all that can be invoked only with a view to establishing the plot itself.

 

Here is [**145] how he ends his remarks on this point:

 

I think this is clear. If you come to the conclusion that he was in possession of some information regarding war munitions, and that he did communicate that information directly or indirectly to a foreign power and that he agreed to do that with someone else, he is guilty of conspiracy. That is the last paragraph in the indictment.

 

So, I come to the conclusion that the jury was not misled. It knew perfectly well that the accused could not be declared guilty [*685] unless the evidence established that he had an understanding with other persons to commit one of these specific offences.

 

The second and third objections, besides being studied at length by Mr. Justice Bissonnette and Mr. Justice Barclay, were also discussed in the first part of my notes. Need I add that when the Judge expressed the opinion that the witness Gouzenko could probably have been arrested for the same offence of which the prisoner is accused, that means to say only one thing, that the witness is an accomplice.

 

The fourth ground of attack against the Judge’s charge is, I believe, the one upon which the appellant has laid most stress. It is certain that if the Judge [**146] really made certain remarks that the jury could interpret as blaming the accused for not having given evidence, the verdict should be quashed.

 

Section 4(5) of the Canada Evidence Act, R.S.C. 1927, c. 59, is precise: “The failure of the person charged, or of the wife or husband of such person, to testify, shall not be made the subject of comment by the judge, or by counsel for the prosecution.”

 

The principle recognized by the jurisprudence is that the Judge or counsel for the Crown derogates from this rule if he points out that there is no contradiction in a case where the accused would be the only one to be able to refute it. That I believe is the meaning of the decision in Bigaouette v. The King, 47 Can. C.C. 271, [1927] 1 D.L.R. 1147, S.C.R. 112. However, even in such case, the Judge may point out the failure of the defence to give evidence, the onus of which falls upon him under the law.

 

For example, by virtue of s. 4(3) of the Official Secrets Act,

 

if any person receives any … document or information, knowing, or having reasonable ground to believe, at the time when he receives it, that the … document or information is communicated to him in contravention of this Act, [**147] he shall be guilty of an offence under this Act, unless he proves that the communication to him … was contrary to his desire.

 

The Judge could indicate to the jury that the accused had not attempted to establish that the receipt of this document or information was contrary to his desire, although this evidence could be given only by the accused himself.

 

But when the refutation can come from other persons, nothing prevents him from pointing out that the defence refrained from doing so.

 

A direction to the jury on a criminal trial that the accused had failed to account for a particular occurrence, as to which, [*686]

 

 by reason of the testimony adduced against him, the onus was cast upon him to answer, is not a comment upon the failure of the accused to testify, and does not contravene sec. 4 of the Canada Evidence Act, R.S.C. 1906, ch. 145.

 

(R. v. May (1915), 23 Can. C.C. 470, 21 D.L.R. 728, 21 B.C.R. 23 [Can. C.C. and D.L.R. headnote].)

 

Although the remarks of which the appellant complains are recited at length by my colleagues, I believe I should reproduce them:

 

That is, in a few words, the contention of the defense. The Crown contends that the existence of a spy ring, [**148] organized by the Russians, has been clearly proven, and, if the documents filed by Gouzenko and the statements therein were lies, why would Lunan, Gerson and the others not come here to deny them? Why have Miss Willsher and Miss Woikin pleaded guilty to the charge — why was not Sam Carr here to deny them? Why did they not proclaim their innocence? Mr. Brais then discussed the evidence relating to the accused himself; he says that the discovery of the four ingredients for a new way to produce RDX was very important, and that Russia was after it, and that it was exactly what the accused got from Boyer; and in the documents it is shown clearly that the RDX formula was obtained from the Professor by Rose, and went to Moscow through Sokolov.

 

Consequently, when the Judge made these remarks, it was in the course of the summing up of the allegations which the Crown had just offered as to the existence of a general plot and as to the proof carried by the documents. If the Crown counsel then made a statement contrary to the record of the evidence, the defence should have noticed it and objected thereto. What is certain is that these observations, as made, apply to several persons who might [**149] have been able to contradict Gouzenko and his documents, and not only to the accused. That is all the more certain as the Judge then points out the allegations of the Crown as to the evidence of the participation of the accused.

 

Like Mr. Justice Bissonnette I am convinced that if the Judge’s words could really be interpreted as censuring the accused for not having given evidence, counsel for the defence, so heedful of all that might be contrary or favourable to his client, would not have failed to point it out, if not during, at least at the close of the charge.

 

In regard to the fifth ground, error by the Judge as to the facts, the appellant first stresses the erroneous interpretation of the evidence of Boyer. The Judge would have said that Boyer wished to make the RDX formula known to the Russian Scien-[*687]-tific Mission when, according to his evidence, he wished to induce this mission to ask for and obtain this formula through official channels. If such is the case, why did he give Rose the description of all the ingredients forming this explosive RDX?

 

The appellant complains also of the interpretation that the Judge gives to ex. P-32 in so far as it affects Rose. He [**150] contends that Gouzenko interpreted the note applying to the accused as indicating a conversation with Boyer in regard to the decisions of the Secret Session of Parliament, while the Judge finds therein two separate items: the conversation with the Professor and the entry in regard to the Session. Need I add that the Judge was not bound by Gouzenko’s interpretation; he had the text before him and upon the objection of counsel for the defence, he asked the jurors to read the text themselves. Now, here is the entry found in P-32 and it seems to be in conformity with the text written in the Russian language: “Conversation with profess. dec. secr. session of Parliament.” Does not this entry indicate two separate incidents: a first one, the conversation with the Professor, and the other, the decisions of the Secret Session of Parliament?

 

Should the Judge have erred, it would not be a ground for quashing the verdict, when the jurors had been warned with such a care of their absolute authority as to the facts? He even said to the jury: “If I have said anything on facts, if I gave any opinion on the value of evidence, you can put that aside if you wish, because it is for you alone to appreciate [**151] the facts, and not for me.”

 

On the whole, I am of the opinion that this Court could not be justified in interfering and quashing the verdict of the jury which declared the accused guilty of the crime of conspiracy to commit offences prohibited by the Official Secrets Act. I must say that if I have not stopped to discuss the text of this Act, it is because this ground is entirely covered by the notes of Mr. Justice Bissonnette and those of Mr. Justice Barclay. I refer in particular to those parts of the notes of Mr. Justice Bissonnette where he describes the general object of the Act and points out the meaning of each one of the sections as well as the procedure there provided. It would be a useless repetition.

 

Condemned to 6 years in the penitentiary, the appellant appeals also against the sentence. At the hearing, he first asked that the term itself be reduced but he stresses above all that, in case the appeal on the merits would be dismissed, the Court decide that the penalty should run not from the judgment on [*688] appeal but from the date of the sentence, since the accused has been in prison since that date.

 

I must say that upon the petition for leave to appeal, he complains [**152] that the sentence is excessive in view of special circumstances that are not mentioned. He adds that the trial Judge applied erroneous principles, was influenced by illegal considerations and did not consider all the pertinent circumstances in fixing the quantum. The appellant thus invokes the only ground which would permit this Court to interfere since the sentence is left to the discretion of the trial Judge, but nothing in his petition justifies these grounds. The law provides a maximum of 7 years’ imprisonment. The Judge condemned him to 6 years. The crime of which the appellant is found guilty is one of the most serious there is and I do not believe there is any reason for this Court to interfere.

 

As for the verbal request that this Court count the duration of the sentence from its date and not from the judgment on appeal, I do not believe that this Court should derogate from the rule set out in s. 1019.