Gouin v. The King

An entry in the formal judgment of an appellate court, signed by its president, that two judges dissented from the judgment for the reasons in law stated in their respective notes, is sufficient to found jurisdiction for appeal to the Supreme Court of Canada upon these questions of law under sections 1013 (5) and 1024 Cr.C.

Idington J. dubitante.

When the evidence against a prisoner is the uncorroborated evidence of an accomplice, it is wrong for the judge to tell the jury that, if they are quite certain that the accomplice is telling the truth, they have not only the right to convict the prisoner but that it is their duty to do so. Rex v. Beebe TL.R. 635; 19 Cr. App. Cas. 22) foll. Idington J. dissenting.

Per Anglin C.J.C. and Duff, Mignault, Newcombe and Rinfret JJ.-In such a case, the judge should follow the rule laid down in Baskerville's Case (12 Cr. App. Cas. 81): the judge should warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice and, in his discretion, may advise them not to convict upon such evidence; but he should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence. APPEAL from the decision of the Court of King's Bench, appeal side, province of Quebec, affirming the judgment of the Court of King's Bench, criminal side, which had found the appellant guilty of manslaughter upon the verdict of a jury.

The material facts of the case and the questions at issue are sufficiently stated in the judgments now reported. Lucien Gendron for the appellant.

Ernest Bertrand K.C. for the respondent.

*PRESENT:-Anglin C.J.C. and Idington, Duff, Mignault, Newcombe and Rinfret JJ.

J.-The appellant has, by the verdict of a jury, been found guilty of manslaughter upon an indictment for murder; i.e. for having, unlawfully and with intent to procure abortion, done on the person of a girl acts which have caused her death, and which he knew to be likely to have such result.

Against his conviction he appealed, on grounds which involved questions of law alone, to the Court of King's Bench of the province of Quebec, where his appeal was dismissed and the conviction entered against him was confirmed in all respects.

The law is that

In Davis v. The King (1), it was held that an appeal lies to this court, under s. 1024 of the Criminal Code read with s. 1013, only where a dissenting opinion has been expressed upon a question which the court of appeal deems a question of law and pursuant to its direction.

This direction must be evidenced by the order of the court and should be plainly expressed. The formal judgment here contains the entry that

This entry, which is signed by the president of the court, is, in our opinion, consistent only with the view that the court considered it in the interests of justice that separate judgments should be pronounced by the dissenting members of the court, and therefore sufficient to found jurisdiction for appeal to the Supreme Court of Canada upon the questions of law which are in difference between the learned judges of the court of appeal.

By force of s. 1024 of the Criminal Code as enacted by s. 27 of c. 38 of 15 and 16 Geo. V, the right of appeal is limited to

In this case, the points of difference were four in number; but, in the view we take, it will only be necessary to GomI consider the first of them, as to which both dissenting judges have expressed their disagreement from the majority of the court. It has reference to a certain passage of the learned Rinfret J. trial judge's charge to the jury.

The learned judge, after having explained the law concerning parties to offences (the principals, the accomplices, the actual perpetrators of the crime and the accessories before or after the fact) discussed the weight which ought to be given to the evidence of an accomplice and the necessity for its corroboration. He described what amounts to corroboration in law; and then he advised the jury as follows: La Cour d'Appel a d6cid4 que le juge ne doit pas demander aux jur6s de mettre de cot6 le timoignage d'un complice, mais il doit leur indiquer le danger qu'il peut y avoir h condamner une personne sur le seul timoignage d'un complice.

Cependant, mime si ce t~moignage u'est pas appuy6 de quelque corroboration, non-seulement vous avez le droit de le faire, mais c'est votre devoir de le faire, si vous croyes que le complice qui rend t6moignage dit la v6rit6.

The learned judge was there advising the jury on a question of law and we must therefor, for the moment, quite independently of the facts of this case, consider whether in law his direction on that point was adequate and proper. An accomplice is a competent witness. Rex v. Baskerville (1).

There are cases in which the evidence of one witness must be corroborated (Cr. C. s. 1002). Murder arising out of abortion is not one of them. But, in the King v. Baskerville (1), the Court of Criminal Appeal in England undertook to state "the law to be applied in future cases" and added:

We trust that it will be unnecessary again to refer to the earlier decisions of this court.

Lord Reading C.J., when delivering the judgment said (p. 663):- It has long been a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence; but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence. Reg. v. Stubbs (2); In re Meunier This rule of practice has become virtually equivalent to a rule of (1) [1916] 2 K.B. 658, at p. 669.

(3) [1894] 2 Q.B. 415.

(2) 1 Dears. 555. law, and 'since the Court of Criminal Appeal Act came into operation this court has held that, in the absence of such a warning by the judge, GoTIN the conviction must be quashed.

KINo.

The judgment in the Baskerville Case (1) as laying down Rin~frt J. "the law that should be followed by this court" was ex- pressly adopted by the Court of King's Bench (appeal side) of the province of Quebec in The King v. Boycal and Ballan (2).

Since then, the Court of Criminal Appeal has decided The King v. Beebe (3), which was a case of abortion. This decision was delivered only on the 6th July 1925 and therefore after the learned trial judge in the present case was called upon to give his direction to the jury, so that, in justice to him, it should be said that he lacked the advantage of having before him what may be called an authoritative interpretation of the Baskerville judgment.

In the Beebe Case (3), Lord Hewart C.J. refers to King v. Baskerville (1) and asks: "What does that judgment say?"

His answer is:

A clear distinction is drawn, although it is drawn in very few words and without elaboration or explanation, between three things: one, is to tell the jury that it is within their legal province to convict upon such unconfirmed evidence; the second is, and this is a rule of universal application in such cases, not a rule to be neglected in some cases and observed in others, but a rule of universal application, it is a duty to warn the jury of the danger of convicting a person on the uncorroborated testimony of an accomplice or accomplices; the third thing is, that the learned judge in the exercise of his discretion may advise them not to convict upon such evidence.

One reads that passage side by side with the passages in the cases referred to, where it appears that so far as Baron Park was concerned he always advised a jury in such circumstances not to find a person guilty. But however that may be, there is a distinction drawn between the three different things the jury are to be told; that it is within their legal province to convict; they are to be warned in all such cases that it is dangerous to convict; and they may be advised not to convict.

It is quite clear when one looks at that enumeration of the various courses, that nowhere is to be found directly or indirectly any reference to a case in which it may be the duty of the learned judge to advise the jury in such a case that they ought to convict.

The decision in the Baskerville Case (1) cannot be put in clearer and more powerful language, and it would be idle to add anything to it.

(1) [19161 2 K.B. 658.

(2) [19201 Q.R. 31 K.B. 391, at p. 396.

(3) 19 Cr. App. Cas. 22; 41 TL.R. 635.

Now let us see how far the direction here complained of compares with the warning in the Beebe Case (1).

GouiN Here, the learned judge said:

'. Cependant, mgme si ce t6moignage (that of an accomplice) n'est pas appuy de quelque corroboration, non-seulement vous avez le droit de Rinfret J. le faire (i.e. to convict), mais c'est votre devoir de le faire, si vous croyez que le complice qui rend t6moignage dit la v6rit6.

In the Beebe Case (1), the judge presiding the Assizes had said:

If you are quite certain that that girl (an accomplice) is telling the truth and nothing but the truth so that you are satisfied in your heart and conscience, although it is uncorroborated, you ought to act upon it. If you are not satisfied up to the very hilt then do not do it.

As will be seen, in both passages the language is almost identical; but, if anything, the direction in the Beebe Case (1) was less open to objection. Yet, it elicited the following criticism from the Lord Chief Justice of England: Those .words are not only not a warning of the danger of so acting, and not only are they not a refraining from advising the jury so to act, but they are quite clearly an affirmative and express direction to the jury that in that event they ought so to act. In the opinion of this court, that direction is not such a direction as should, according to the law laid down in Baskerville Case (2), be given.

And the conviction was quashed.

It is true that in the Beebe Case (1) there was no corroboration of the evidence of the accomplice. But the direction of the learned trial judge in this case, at the point complained of, proceeds on the same assumption (" mime si ce timoignage n'est pas appuy6 de quelque corroboration"). It may very well have led the jury to understand that he was in effect advising them that, under the particular circumstances of this case, it was not necessary for them to look for corroboration, but if they were satisfied that the accomplice told the truth, not only was it within their province to convict the accused on the sole evidence of such accomplice, but it was their duty to do so. Now, in such a case, while a jury may convict, the rule is not that it is their duty to convict.

In our opinion, this is conclusive of the appeal. When once a case of misdirection is made out, the burden is upon the Crown to show that, as a result, there has been no miscarriage of justice, (s. 1014 Cr. C). Here, the Crown has (1) T.L.R. 635; 19 Cr. App.

(2) [1916] 2 K.B. 658.

Cas. 22.

S.O.R.

failed to convince us that, but for the direction above referred to, the verdict would necessarily have been the same.

No doubt it is the settled rule in England that the appeal J. may be dismissed, although the point raised should be decided in favour of the appellant, if the court considers that no substantial wrong has occurred. The rule is embodied in s. 1014 subs. 2 of our Criminal Code; and only a short time ago this court made an application of it in Baker v. The King (1).

But, as was said by Sir Charles Fitzpatrick C.J. in Allen v. The King (2):

In the Allen's Case (2), all the judges below had found that there was ample evidence that the prisoner killed Captain Elliston and, as would appear from the report, all the judges of this court concurred in that opinion. Nevertheless, because some evidence had been improperly admitted or something not according to law had been done which might have operated prejudicially to the accused upon a material issue, although it had not been and could not be shown that it did, in fact, so operate, and although the evidence properly admitted warranted the conviction, a new trial was ordered.

In the circumstances of this case we cannot come to any other conclusion but that the jury may have been influenced by the improper direction and therefore the conviction cannot stand.

Since the case must go before another jury, we purposely refrain from discussing the evidence tendered in corroboration of the testimony of the accomplice; and we should not in the slightest be understood to mean that there is not in the record ample corroboration to justify a conviction under proper direction.

We think however, the jury may have been led to disregard this issue and to think that they might well reach their verdict without considering whether or not such corroboration was sufficient to warrant a conviction. Were this court now to decide that it was, it would transfer G to itself the determination of a question which the accused has the right to have tried by a jury, Makin v. Attorney- KG. General for New South Wales (1).

We are therefore of opinion that the appeal must be allowed, the conviction quashed and a new trial directed. J. (dissenting).-Before receiving a copy of my brother Rinfret's opinion herein, I had read the entire appeal book in this case, as well as the factums, and considered same, and had arrived at the conclusion that this appeal should be dismissed.

I may say that the Beebe Case (2), where there was no corroborating evidence, yet so much relied upon by counsel for appellant, does not seem to me to have much resemblance to this case. Indeed the expression of the learned trial judge herein complained of, seemed to me as if he had simply, in a very long charge, made a slip in failing to add a word or two such as under the circumstances set forth in other evidence adduced in the case; and not likely to have influenced the jury unduly.

And I may say as to the decision in the Court of Criminal Appeal in England, constituted under the Act of 1907, we have not the same powers as that, and hence must be on our guard, in that respect, in the disposition we make of cases presented to us within our restricted jurisdiction over criminal cases.

As there is to be a new trial I must content myself with saying that for the reasons assigned by Mr. Justice Greenshields, concurred in by Mr. Justice Dorion, with which in the main I agree, I am of the opinion that this appeal should be dismissed.

Appeal allowed.