Fraser v. The King

the reasons of judgment of the appellate court, it must be held that there exists, between the above decisions and the judgment appealed from, the conflict required by section 1025 of the Criminal Code; and, therefore, leave to appeal to this Court should be granted, as such rule of law is of sufficiently general importance to justify such leave.

MOTION under section 1025 of the Criminal Code for leave to appeal to this Court from the judgment of the Court of King's Bench, appeal side, province of Quebec, upholding the conviction of the appellants.

Charles Laurendeau K.C. and James Crankshaw K.C. contra.

PRESENT:-Rinfret J. in chambers.

My duty is to decide whether the judgment appealed from conflicts with the judgment of any other court of appeal in a like case in Canada; and, if so, whether the importance of the case justifies the granting of leave to appeal to the Supreme Court of Canada.

It is common ground that the conviction of the appellants was grounded exclusively on circumstantial evidence. In such cases, the rule laid down by Baron Alderson in Hodge's case (1) may be said to have been generally adopted that

It may be added that this Court has also adopted the rule, amongst other instances, in the cases of McLean v. The King (6) and Reinblatt v. The King (7).

The result of that rule and of the decisions where it was applied is that

Now, if we take the principle thus enunciated and acted upon by the several courts of appeal throughout Canada in the cases referred to, and if we compare it with the principle expounded in the present case by the Court of King's Bench (appeal side), as it must be gathered from THE the reasons of judgment, it is difficult not to come to the conclusion that there exists between the two the conflict required by section 1025 of the Criminal Code.

The learned judge who gave the reasons for the Court expressed himself in the following way:

Aussi bien, les procureurs des appelants se sont-ils appliquis A6 mettre de l'avant, pour le cas oii le dossier montrerait encore que leurs clients ont t6 mal6s A l'affaire, cette rfgle de droit bien connue qu'une preuve circonstantielle ne doit conduire A un verdict de culpabilith que si les circonstances entrevues ne s'adaptent pas de fagon plausible A une autre hypothise raisonnable.

As I read this sentence, I do not feel that it lays down the rule in the way in which it has been interpreted by the other courts of appeal in the judgments already mentioned. I think it was put down in a much stronger way than the words of the learned judge convey. The statement qu'une preuve circonstantielle ne doit conduire A un verdict de culpabilit6 que si les circonstances entrevues ne s'adaptent pas de fagon plausible A. une autre hypothise raisonnable is not as favourable to the prisoner as the principle laid down by Baron Alderson (1) that the facts must be such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person, which, by the other courts, have been understood and interpreted to mean that there should be no other possible explanation consistent with the evidence, except the guilt of the accused, or that the evidence believed by the jury must exclude every reasonable hypothesis of innocence and justify the verdict.

But, if I read further in the reasons of the Court of King's Bench, my conviction is strengthened that the principle whereby the Court measured the validity of the jury's verdict in the present case was different from that laid down by Baron Alderson and accepted by the other courts of appeal, for the learned judge says:

Je veux tenir compte de cette rbgle bien juste et bien logique, mais peut-on s'y attarder encore, s'il surgit un fait d6cisif et qui soit de nature A. dissiper tout doute quant A la connaissance du but poursuivi et de (1) (1838) 2 Lewin's Crown Cas. 227.

S.C.R.]