Forsythe v. The King

J.-This is an appeal from an order of the Court of Appeal for Manitoba dismissing an appeal by the accused Forsythe against his conviction on thirteen counts of conspiracy relating to the possession, distribution and sale of drugs, one charge or count relating to the signing of prescriptions in respect of a drug, one charge or count relating to the signing of orders respecting a drug and one charge or count relating to the sale of drugs, all . within the meaning of and contrary to the provisions of The Opium and Narcotic Drug Act of Canada. Mr. J. Justice Robson dissented on twelve separate grounds set out in the formal order of the Court of Appeal and would not only have ordered a new trial but would have acquitted the accused.

We do not agree that Forsythe should be acquitted, but, as a new trial is being directed, as little as possible will be said about the evidence. The accused was indicted jointly with one Carson; a severance was granted with respect to Carson who, on his trial subsequent to Forsythe's conviction, was found not guilty. This circumstance is no reason in law that the appellant should be acquitted.

The trial judge was within his province in expressing his personal opinion as to the character of the police witnesses, as he made it clear throughout his charge that all questions of fact were for the jury and that the latter were not bound by his opinion.

On the new trial, it will be for the jury to say if the conspiracy alleged between Carson and the accused is proved beyond a reasonable doubt.

Evidence of Carson's actions on which, together with any other relevant evidence, the jury might so find, is admissible. These remarks dispose of grounds of dissent 1 to 4 inclusive. As to ground 5, we agree with Mr. Justice Robson that what was referred to by the trial Judge as corroboration could not be considered by the jury as such; that is the evidence by the stenographer in Forsythe and Bisson's office that she saw Wray and Schaf, at different times, in the office when apparently they had no business there, and the evidence of a witness who had seen Lillian Young with Bisson in an auction sales room. All this would be merely evidence of opportunity and is not corroboration. Burbury v. Jackson (1); The King v. Baskerville (2). On this ground a new trial should be directed.

A new trial should also be directed because the written statement obtained by the police from Elizabeth Pitt was improperly admitted (ground 6 of dissent).

Section 10 of the Canada Evidence Act, referred to by the trial Judge, has no application, and counsel for the Crown S.C.R.]

before us so admitted. It was suggested that the statement was admissible since counsel for the accused had referred to it in cross-examination.

It is true that the latter did ask Mrs. Pitt if she had signed a statement for K Jthe police; that she admitted that she had done so but stated there was an error in the statement.

This, however, is not sufficient to permit it to be put in evidence. The statement was made when the accused was not present and, while the majority of the Court of Appeal considered there was nothing in the statement that Elizabeth Pitt did not say in the witness box, there are two or three matters referred to in the statement which are clearly hearsay. We are unable to agree that, within the meaning of subsection 2 of section 1014 of the Criminal Code, it can be confidently stated that no substantial wrong or miscarriage of justice has occurred.

There is nothing in grounds 7 to 9 inclusive upon which a new trial should be directed because, subject to what is stated presently, the case for the defence was put to the jury, and the trial Judge did not exclude or qualify legitimate cross-examination by counsel for the defence of Crown witnesses. As to grounds 10 to 12, it may be stated that any objection to count 16 of the indictment because of vagueness and generality should have been taken under section 898 of the Code before the accused pleaded. However, while the general statement of the law of conspiracy made by the trial Judge may be unimpeachable, it was of the utmost importance in this case that the application of the law to the facts should be explained fully to the jury, particularly so far as the evidence relating to Carson's activities was concerned. Counts 6 and 7 required a much fuller explanation than was given. For this third reason a new trial is directed.

A. M. Shinbane.