Boucher v. The Queen

:- THE CHIEF JUSTICE:-The first question of law upon which leave to appeal to this Court was granted is:- (1) Were the jury misdirected by the learned trial judge with reference to the doctrine of reasonable doubt? The trial judge, in my view, did not misdirect the jury, but the difficulties occasioned by what he did say would not arise if trial judges would use the well-known and approved word "reasonable" or "raisonnable" when describing that doubt which is sufficient to enable a jury to return verdict of not guilty.

.

There was clear misdirection by the trial judge with respect to the second question of law which the appellant was permitted to raise:- (2) Were the jury misdirected by the learned trial judge with reference to the rule as to circumstantial evidence?

The evidence against the appellant was entirely circumstantial. "In such cases", as this Court pointed out in The King v. Comba (1), "by the long settled rule of the common law, which is the rule of law in Canada, the jury, before finding a prisoner guilty upon such evidence, must be satisfied not only that the circumstances are consistent with a conclusion that the criminal act was committed by the accused, but also that the facts are such as to be inconsistent with any other rational conclusion than that the accused is the guilty person". This, of course, is based upon the decision in Rex v. Hodge (2); and, while we stated in McLean v. The King (3), "There is no single exclusive formula which it is the duty of the trial judge to employ. As a rule he would be well advised to adopt the language of Baron Alderson or its equivalent.", in this case neither that language, nor anything remotely approaching it was used. Even though, according to the judgment in McLean, other expressions might be permitted, the experience of the Courts in Canada in the last few years justifies a further warning that -a trial judge should use the well settled formula and so obviate questions arising as to what is its equivalent. Because of the misdirection in this case, the conviction cannot stand, unless the Court, exercising the power conferred upon it by s.s. 2 of s. 1014 of the Criminal Code, considers that there has been no substantial wrong or miscarriage of justice.

Before dealing with that problem, it is well to set out the third question of law which the appellant was allowed to argue:- (3) Was the appellant deprived of a trial according to law by reason of the fact that the crown counsel used inflammatory language in his address to the jury? It is the duty of crown counsel to bring before the Court the material witnesses, 'as explained in Lemay v. The King

In his address he is entitled to examine all the evidence and ask the jury to come to the conclusion that the accused is guilty as charged. In all this he has a duty to K assist the jury, but he exceeds that duty when he expresses by inflammatory or vindictive language his own personal opinion that the accused is guilty, or when his remarks tend to leave with the jury an impression that the investigation made by the Crown is such that they should find the accused guilty.

In the present case counsel's address infringed both of these rules.

I now turn to s.s. 2 of s. 1014 of the Code. The test to be applied was laid down in Schmidt v. The King (2): "that the onus rests on the crown to satisfy the Court that the verdict would necessarily have been the same".

While I am inclined to the view that that test has been met, I understand that several members of the Court think otherwise and, therefore, under the circumstances of this case,

I will not record a dissent.

The judgment of Taschereau and Abbott JJ. (dissenting)

was delivered by:- J.:-L'appelant a

6t6 accus6 d'avoir assassne un nomm6 Georges Jabour Jarjour, A St-Henri, comt6 de Lvis, le 3 juin 1951, et a 6t6 trouv6 coupable de meurtre h la suite d'un prochs devant le jury, pr6sid6 par

1'honorable Juge Albert S~vigny. La Cour du Bane de la

Reine (3) a unanimement confirm6 ce verdict. Apris avoir obtenu la permission de 1'honorable Juge Kellock de la

Cour Supreme du Canada, l'appelant a inscrit la pr~sente cause devant cette Cour.

Ses griefs d'appel sont les suivants:- 1. Le juge dans son adresse aux jurds, ne les a pas 16galement instruits sur la doctrine du doute raisonnable.

Couronne, dans son adresse aux jur&s, a fait usage d'un langage enflamm6.

Je suis d'opinion que le premier motif d'appel n'est pas fond6.

Un r6sum6 de ce que le prsident du tribunal a eXprim6 maintes reprises sur le doute que peuvent entretenir les jur6s, se trouve dans 1'extrait suivant de son adresse:a Ividemment, le jury a n6cessairement compris par ces mots, qu'il devait 6tre satisfait de la culpabilit6 de l'accuse, au delh d'un doute raisonnable. Sinon, ce dernier devait en avoir le b6n6fice et 6tre d~clar6 non coupable.

Le second grief est plus s6rieux. Depuis au delh de cent ans, la rigle concernant la direction qui doit 6tre donn6e aux jur6s lorsqu'il s'agit de preuve circonstantielle, a 6t6 posde dans la cause de Hodge (1).

S'adressant aux jur6s, 'le Baron Alderson s'est exprime ainsi:

Cette jurisprudence a depuis 6t6 suivie, et il suffit de r6f6rer aux causes suivantes pour se convaincre qu'elle a 6t6 constante:-(Wills on Circumstantial Evidence (7th ed. pp. 320 and 321) Rex. v. Natanson (2), Rex. v. Francis and Barber (3), Rex. v. Petrisor (4), MacLean v. The King (5).

Malgr6 que les tribunaux se sont montr6s tris s6v&res sur la n6cessit6 qu'il y a d'instruire le jury dans le sens indiqu6 dans la cause de Hodge, il ne s'ensuit pas que la formule soit sacramentelle, et que 1'accus4 aura droit h un nouveau procks si les termes exacts ne sont pas employ6s. (MacLean v. The King supra) Ce serait exiger un trop grand formalisme, et droit criminel ne va pas jusque 1I.

II faut cependant retrouver dans les paroles du juge au procks, au moins 1'6quivalent, qui fera comprendre aux jur6s que dans une cause comme celle qui nous occupe, oa la preuve est circonstantielle, pour trouver un accus6 coupable, ils doivent tre satisfaits non seulement que les circonstances sont compatibles avec sa culpabilit6, mais qu'elles sont aussi incompatibles avec toute autre conclusion rationnelle. Malheureusement, l'6quivalent de cette directive qui doit 6tre n6cessairement donn6e, ne 1'a pas 6t6.

Le savant pr6sident du tribunal a 'bien attir6 l'attention du jury sur la preuve circonstantielle; il leur a bien dit qu'elle devait 6tre forte et convaincante, mais il n'a pas, h mon sens, expliqu6 la v6ritable doctrine que j'ai cit6e plus haut et qu'exige la loi.

L'appelant pr6tend enfin que la procureur de la Couronne, au cours de son adresse au jury, a fait usage d'un langage enflamm6 en faisant appel leurs passions, avec le r6sultat qu'ils auraient 6t6 entrain6s h ne pas juger cette cause comme des hommes raisonnables.

La situation qu'occupe l'avocat de la Couronne n'est pas celle de l'avocat en matibre civile. Ses fonctions sont quasijudiciaires. Il ne doit pas tant chercher h obtenir un verdict de culpabilit6 qu'h assister le juge et le jury pour que la justice la plus complkte soit rendue. La mod6ration et l'impartialit6 doivent toujours tre les caract6ristiques de sa conduite devant le tribunal.

aura en effet honnitement rempli son devoir et sera h 1'6preuve de tout reproche si, mettant de c6t6 tout appel aux passions, d'une fagon digne qui convient h son r6le, il expose la preuve au jury sans aller au delh de ce qu'elle a r6v616.

Je suis done d'opinion qu'en ce qui concerne les directives du pr6sident du tribunal, relatives h la preuve circonstantielle, il y a eu erreur de droit. Je crois 6galement, apris avoir analys6 1'adresse au jury du procureur de la Couronne, qu'il y a eu exag6rration de langage. Mais je ne crois pas que ces deux motifs soient suffisants pour ordonner un nouveau procks. L'article 1014 du Code Criminel est ainsi r6dig6, et je pense que dans les oirconstances de cette cause, il doit trouver toute son application:

A Boucan~

Tasceau Il ne me parait pas utile d'analyser les faits que la preuve a r6v616s au cours du procks.

II sera suffisant de dire qu'A sa lecture, je me suis convaincu que mime si directive du juge eut 6t6 conforme h la ioi, et si le procureur de la Couronne eut fait usage d'un langage plus mod6r6, le verdict aurait 6t6 ndcessairement le m6me. Je suis satisfait qu'il n'y a eu aucun d6ni de justice et que 'accus6 n'a subi aucun tort r6el. Gouin v. The King (1); Stirland v. Director of Public Prosecutions (2); Schmidt v. The King (3). Je rejetterais lappel.

RAND J.:-Three grounds of appeal were taken: an error in the charge as it dealt with the 'burden of proof on the Crown; a failure to give an instruction on the test required for circumstantial evidence; and certain statements Crown counsel in his address to the jury.

The first ground can be disposed of shortly. The words objected to were "hors de tout doute s6rieux".

Whatever difference there is between this and the usual formula was swept away by subsequent language with which the jurors were at least more familiar: they must have "une absolue certitude de la v6rit6 de 1'accusation qu'ils ont h juger"; other expressions were to the same effect. The instruction, as a whole, was more favourable to the 'accused than is customary.

The rule as to the sufficiency of proof by circumstances is that the facts relied on must be 'compatible only with guilt and admittedly no instruction of that nature expressly or in substance was given. The purpose of the rule is that the jury should. be made alive to the possibility that the materiail facts might be given a rational explanation other than that of items plotting the course of guilty action. I think it should have been given, and I cannot say that the charge as a whole supplied its omission.

There are finally the statements of counsel, which I confine to those dealing with the investigation by the Crown of the circumstances of a crime:

Many, if not the majority of, jurors acting, it may be, for the first time, unacquainted with the language and proceedings of courts, and with no precise appreciation of the role of the prosecution other than as being associated with government, would be extremely susceptible to the implications of such remarks. So to emphasize a neutral attitude on the part of Crown representatives in the investigation of the facts of a crime is to put the matter to unsophisticated minds as if there had already been an impartial determination of guilt 'by persons in authority. Little more likely to colour the consideration of the evidence by jurors could be suggested. It is the antithesis of the 'impression that should be given to them: they only are to pass on the issue and to do so only on what has been properly exhibited to them in the course of the proceedings.

It is difficult to reconstruct in mind and feeling the court room scene when a human life is at stake; the tensions, the invisible forces, subtle and unpredictable, the significance that a word may take on, are sensed at 'best imperfectly. It is not, then, possible 'to say that this reference to the Crown's action did not have a persuasive influence on the jury in reaching their verdict. The irregularity touches one of the oldest principles of our law, the rule that protects the subject from the pressures of the executive and has its safeguard in the independence of our courts. It goes to the foundation of the security of the individuall under the rule of law.

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength 'but it must also be done fairly. The RadJ T role of prosecutor excludes any notion of winning or losing; his function -is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

The answer of the Crown is that notwithstanding these objectionable features, there has been no substantial miscarriage of justice; that the proof of guilt is overwhelming and that the jury, acting judicially, must necessarily have come to the same verdict.

Sec. 1014(2) of the Criminal Code provides that the Court

By sec. 1024 this Court, on an appeal, shall

It will be seen that under the former section the Court is to exercise its discretion in the light of all the circumstances. Appreciating to the full the undesirability, for many reasons, of another trial, I find myself driven to conclude that nothing short of that will vindicate the fundamental safeguards to which the accused in this case was entitled. The conviction, therefore, must be set aside and a new trial directed.

J.:-I 'have had the advantage of reading the reasons to be delivered in this matter by my brother Cartwright. I agree with what he has said in regard to the first and second questions of law. The failure to direct the jury upon what may be called the rule in Hodge's case appears to me to be directly contrary to the unanimous decision of this Court in Lizotte v. The King (1).

Upon the third question, I have this to say.

It has always been accepted in this country that the duty of persons entrusted by the Crown with prosecutions in criminal THE matters does not differ from that which has long been LokeJ. recognized in England.

In Regina v. Thursfield (1), counsel for the Crown stated what he considered to be his duty in the following terms: that he should state to the jury the whole of what appeared on the depositions to be the facts of the case, as well those which made in favour of the prisoner as those which made against her, as he apprehended his duty, as counsel for the prosecution, to be, to examine the witnesses who would detail the facts to the jury, after having narrated the circumstances in such way as to make the evidence, when given, intelligible to the jury, not considering himself as counsel for any particular side or party.

Baron Gurney, who presided, then said:

The learned counsel for the prosecution has most accurately conceived his duty, which is to be assistant to the Court in the furtherance of justice, and not to act as counsel for any particular person or party. In Regina v. Ruddick (2), decided just after the passage of Denman's Act, Crompton J. said (p. 499):

I hope that in the exercise of the privilege granted by the new Act to counsel for the prosecution of summing up the evidence, they will not cease to remember that counsel for the prosecution in such cases are to regard themselves as ministers of justice, and not to struggle for a conviction, as in a case at Nisi Prius-nor be betrayed by feelings of professional rivalry-to regard the question at issue as one of professional superiority, and a contest for skill and preeminence.

An article entitled "The Ethics of Advocacy", written by Mr. Showell Rogers, appears in Vol. XV of the Law Quarterly Review at p. 259, in which the cases upon this subject are reviewed and discussed.

Speaking of the principles above referred to, the author says:

Any one who has watched the administration of the criminal law in this country knows how loyally-one might almost say how religiouslythis principle is observed in practice.

Counsel for the Crown appears to be anything rather than the advocate of the particular private prosecutor who happens to be proceeding in the name of the Crown.. When there is no private prosecutor, and the proceedings are in the most literal sense instituted by the Crown itself, the duty of prosecuting counsel in this respect is even more strictly to be performed.

These are the principles which have been accepted as defining the duty of counsel for the Crown in this country. (1) C. & P.

4 F. & F. In Rex v. Chamandy (1), Mr. Justice Riddell, speaking for the Ontario Court of Appeal, put it this way (p. 227): It cannot be made too clear, that in our law, a criminal prosecution THE is not a contest between individuals, nor is it a contest between the Locke J.

Crown endeavouring to convict and the accused endeavouring to be acquitted; but it is an investigation that should be conducted without feeling or animus on the part of the prosecution, with the single view of determining the truth.

In the last Edition of Archbold's Criminal Pleading, Evidence and Practice, p. 194, the learned author says that prosecuting -counsel should regard themselves rather as ministers of justice assisting in its administration than as advocates.

It is improper, in my opinion, for counsel for the Crown to express his opinion as to the guilt or innocence of the accused.

In the article to which I have referred it is said that it is because the character or eminence of a counsel is to be wholly disregarded in determining the justice or otherwise of his client's cause that it is an inflexible rule of forensic pleading that an advocate shall not, as such, express his personal opinion of or his belief in his client's case. In an address by the late Mr. Justice Rose, which is reported in Vol. XX of the Canadian Law Times at p. 59, that learned Judge, referring to Mr. Rogers' article, pointed out a further objection to any such practice in the following terms:- Your duty to your client does not call for any expression of your belief in the justice of his cause . . . The counsel's opinion may be right or wrong, but it is not evidence. If one counsel may assert his belief, the opposing counsel is put at a disadvantage if he does not state that in his belief his client's cause or defence is just. If one counsel is well known and of high standing, his client would have a decided advantage over his opponent if represented by a younger, weaker, or less well known man. In my opinion, these statements accurately define the duty of Crown counsel in these matters.

An extract from one of the passages taken from the address of counsel for the Crown by my brother Cartwright reads:- C'est le devoir de la Couronne, quand une affaire comme celle-1L arrive, n'importe quelle affaire, et encore plus dans une affaire grave, de faire toutes les recherches possibles, et si au cours de ces recherches avec nos experts on en vient A6 la conclusion que l'accus6 n'est pas coupable on (1) (1934) 61 C.C.C. 224.

qu'il y a un doute raisonnable, c'est le devoir de la Couronne, messieurs, de le dire ou si on en vient h la conclusion qu'il n'est pas coupable, de ne pas faire d'arrestation. Ici, c'est ce qu'on a fait.

These are statements of fact and not argument and, in U making them, counsel for the Crown was giving evidence. Locke J. The matters stated were wholly irrelevant and, had the counsel in question elected to go into the witness box to make these statements on oath, the proposed evidence would not have been heard. In this manner, however, these facts were submitted to the jury for their consideration. The statements were calculated to impress upon the jury the asserted fact that, before the accused had been arrested, the Crown, with its experts, had made a thorough investigation and was satisfied that he was guilty beyond a reasonable doubt.

Introduced into the record in this manner, there could be no cross-examination to test their accuracy. The address of Crown counsel to the jury ended in this manner:- On voit tous les jours des crimes encore plus nombreux que jamais, des vols et bien d'autre chose, au moins celui qui vole h main arm6e ne fait pas souffrir sa victime comme Boucher a fait souffrir Jabour. C'est un crime r6voltant d'un homme dans toute la force de d'un athlhte contre un vieillard de 77 ans qui n'est pas capable de se d6fendre. J'ai un peu respect pour ceux qui volent quand au moins ils ont donn6 une chance 6, leur victime de se d6fendre, mais j'ai aucune sympathie, aucune et je vous demande de n'en pas avoir, aucune sympathie pour ces liches qui frappent des hommes, des amis. Jabour n'itait peut-8tre pas un ami, mais c'6tait un voisin, du moins ils se connaissaient.

LAchement, h coups d'hache.-Et, si vous rapportez un verdict de coupable, pour une fois ga me ferait presque plaisir de demander la peine de mort contre lui.

The Crown prosecutor, having improperly informed the jury that there had been an investigation by the Crown which satisfied the authorities that the accused was guilty, thus assured them on his own belief in his guilt and employed language calculated to inflame their feelings against him.

In Nathan House (1), where a conviction was quashed on the three grounds of misreception of evidence, misdirection and the conduct of counsel, Trevethin, L.C.J., referring to the fact that counsel for the Crown had made an appeal to religious prejudice in his address to the jury, said that (1) (1921)

16 C.A.R. 49.

the language complained of was highly improper and that it was impossible to say that it could not have influenced the jury.

J.

In delivering the judgment of the House of Lords in Maxwell v. Director of Public Prosecutions (1), Lord Sankey, L.C. said in part (p. 176):- The right of the accused in this matter to have his guilt or innocence decided upon the sworn evidence alone, uninfluenced by statements of fact by the Crown prosecutor bearing directly upon the question of his guilt, and to have the case against him stated in accordance with the foregoing principles, were rights which may be properly described, to adopt the language of the Lord Chancellor in Maxwell's case, as being two "of the most deeply rooted and jealously guarded principles of our criminal law." The infringement of these rights was, in my opinion, a substantial wrong, within the meaning of section 1014 (2) of the Criminal Code, and accordingly that provision has no application to this case: Makin v. Attorney General for New South Wales (2); Allen v. The King (3); Northey v. The King (4).

I would allow this appeal, set aside the judgment of the Court of Appeal and the verdict at the trial and direct that there be a new trial.

J.:-This is an appeal from a unanimous judgment of the Court of Queen's Bench, Appeal Side (5), pronounced on the 15th day of June, 1954, dismissing the appeal of the appellant from his conviction on a charge of murder at his trial before Sevigny C.J. and a jury on the 15th of January, 1954.

The appeal -is brought pursuant to leave granted by my brother Kellock.

The questions of law upon which leave to appeal was granted are as follows:

As to the first question, I am of opinion that when all that was said by the learned Chief Justice in his charge to the jury as to the onus resting upon the Crown and as to the accused being entitled to the benefit of the doubt is considered as a whole it cannot 'be said that there was misdirection on this point. I do, however, venture to make the respectiful suggestion that it would be well if trial judges when describing to the jury the doubt the existence of which prevents them from returning a verdict of guilt would refrain from substituting other adjectives for the adjective "reasonable" which has been so long estalblished as the proper term to employ in this connection.

As to the second question of law on which leave to appeal was granted, it is common ground that the evidence against the appellant was wholly circumstantial. It is clear that throughout his charge the learned Chief Justice failed to direct the jury that before they could find the appellant guilty on such evidence they must 'be satisfied not only that the circumstances proved were consistent with his having committed the 'crime but also that they were inconsistent with any other rational conclusion than that the appellant was the guilty person.

The rule requiring the giving of such a direction to the jury, usually referred to as the rule in Hodge's Case (1), has been long established and it is necessary to refer only to the following authorities. In McLean v. The King (2), the following passage in the unanimous judgment of the Court appears at page 690: single exclusive formula which it is the duty of the trial judge to employ. _- As a rule he would be well advised to adopt the language of Baron Alderson or its equivalent.

In The King v. Comba (1), Duff C.J. giving the unani- Cartwright J. mous judgment of the Court said at page 397:

It is admitted by the Crown, as the fact is, that the verdict rests solely upon a basis of circumstantial evidence.

In such cases, by the long settled rule of the common law, which is the rule of law in Canada, the jury, before finding a prisoner guilty upon such evidence, must be satisfied not only that the circumstances are consistent with a conclusion that the criminal act was committed by the accused, but also that the facts are such as to be inconsistent with any other rational conclusion than that the accused is the guilty person.

It is however desirable to point out, as was done by Middleton J.A. in Rex v. Comba (2), that the rule in Hodge's case is quite distinct from the rule requiring a direction on the question of reasonable doubt.

On this point I do not find it necessary to quote from the charge of the learned Chief Justice in the case at bar as I understand that all members of the 'Court agree that there was a failure to give the necessary direction.

As to the third question of law on which leave to appeal was granted, it appears that in the course of his address to the jury counsel for the Crown said:

Le docteur nous dit au sujet du sang,-on nous a fait un reproche messieurs parce que nous avons fait faire une analyse du sang. Mais la Couronne n'est pas ici pour le plaisir de faire condamner des innocents. C'est le devoir de la Couronne, quand une affaire comme arrive, n'importe quelle affaire, et encore plus dans une affaire grave, de faire toutes les recherches possibles, et si au cours de ces recherches avec nos experts on en vient A la conclusion que 1'accus6 n'est pas coupable qu'il y a un doute raisonable, c'est devoir de la -Couronne, messieurs, de le dire ou si on en vient h, la conclusion qu'il n'est pas coupable, de ne pas faire d'arrestation. Ici, c'est qu'on a fait.

Counsel for the Crown concluded his address to the jury as follows:

On voit tous les jours des crimes encore plus nombreux que jamais, des vols et bien d'autre chose, au moins celui qui vole & main arm6e ne fait pas souffrir sa victime comme Boucher a fait souffrir Jabour. C'est un crime rivoltant d'un homme dans toute la force de d'un athl~te contre un vieillard de 77 ans qui n'est pas capable de se d6fendre.

J'ai un peu respect pour ceux qui volent quand au moins ils ont donn6 une chance i leur victime de se d6fendre, mais j'ai aucune sympathie, aucune et je vous demande de n'en pas avoir, aucune sympathie pour ces liches qui frappent des hommes, des amis. Jabour n'6tait peut-4tre pas un ami, mais c'6tait un voisin, du moins ils se connaissaient.

(2) (1938) 70 C.C.C. 205 at 227. d'hache.-Et,

There are a number of other passages in the address of this counsel to the jury which I do not find it necessary to quote as I think they can be fairly summarized by saying that counsel made it clear to the jury not only that he was submitting to them that the conclusion which they should reach on the evidence was that the accused was guilty, a submission which it was of course proper for him to make, but also that he personally entertained the opinion that the accused was guilty.

There is no doubt that it is improper for counsel, whether for the Crown or the defence to express his own opinion as to the guilt or innocence of the accused.

The grave objection to what was said by counsel is that the jury would naturally and reasonably understand from his words first quoted above that he, with the assistance of other qualified persons, had made a careful examination into the facts of the case prior to the trial and that if as a result of such investigation he entertained any reasonable doubt as to the accused's guilt a duty rested upon him as

Crown counsel to so inform the Court.

As, far from expressing or suggesting the existence of any such doubt in his mind, he made it clear to the jury that he personally believed the accused to be guilty, the jury would reasonably take from what he had said that as the result of his investigation outside the court room Crown counsel had satisfied himself of the guilt of the accused. The making of such a statement to the jury was clearly unlawful and its damaging effect would, in my view, be even greater than the admission of illegal evidence or a statement by Crown counsel to the jury either in his opening address or in his closing address of facts as to which there was no evidence.

I conclude that in regard to both the second and third questions on which leave to appeal was granted there was error in law at the trial and that accordingly the appeal should be allowed unless this is a case in which the Court should apply the provisions of section 1014 (2) of the

Criminal Code.

The subsection mentioned has often been considered in this Court and, in the view that I take of the evidence, it is sufficient to refer to the judgment of Kerwin J., as he then was, in Schmidt v. The King (1):

that that As there is to be a new trial, I will, in accordance with the established practice of the Court, refrain from discussing the evidence and will simply state my opinion that it cannot be safely affirmed that the jury, had they been properly directed as to the rule in Hodge's case and had the improper remarks of Crown counsel not been made, would necessarily have convicted the appellant.

This makes it unnecessary for me to consider the submission of counsel for the appellant, that even if the Court should be of opinion that had the trial been free from the errors in law ,dealt with above the jury would necessarily have convicted the appellant the conviction should nonetheless be quashed because these errors were of so fundamental a character that the appellant was deprived of his right to the verdict of a jury following a trial according to law and such deprivation is of necessity a substantial wrong, an argument which would have required a careful examination of the judgments in such cases as Allen v. The King (2) and Northey v. The King (3).

Having concluded that there was error in law at the trial in regard to both the second and third questions on which leave to appeal was granted and that this is not a case in which it can be said that had such errors not occurred the verdict would necessarily have been the same it follows that the conviction must be quashed.