Thibodeau v. The Queen

The appellant convicted dhaving broken and entered a shop with intent to commit a theft. The Crown's case was supported by the testimony of a person whom the trial judge regarded as an accomplice but whose evidence he found was corroborated by (1) an admission made by the appellant and received in evidence by the trial judge, and (2) by the fact that the appellant had previously entered a plea of guilty, which had been withdrawn by leave of the Court. conviction was affirmed by the Court of Appeal and leave to appeal to this Court was granted on the question as to whether there had been error in the acceptance of these two items as legal corroboration. Held: The appeal should be allowed and the conviction quashed. Per Kerwin C.J., Cartwright and Abbott JJ.: At any time before sentence the Court has power to permit a plea of guilty to be withdrawn, and that decision rests in the discretion of the judge and will not be Kerwin C.J. and Taschereau, Cartwright, Fauteux and Abbott JJ.

(1) [19241 S.C.R. 466 at 468.

lightly interfered with if exercised judicially. The original plea should then be treated, for all purposes, as if it had never been made. Consequently, the evidence that an accused had previously pleaded guilty to the charge but had been allowed to withdraw such plea, legally THE inadmissible.

There was also error in admitting in evidence the statement made by the accused, as it cannot be safely affirmed that the trial judge would have decided to admit it if he had not been influenced, as appears clearly in his judgment, by the evidence of the plea of guilty.

On the properly admitted evidence in the record it would have been unreasonable to convict the appellant.

Per Taschereau and Fauteux JJ.: The decision to allow the withdrawal a plea of guilty rests with the discretion of the judge, and if that discretion is exercised judicially the Appeal Courts will not interfere unless there exists serious reasons.

Like considerations should guide the trial judge in deciding whether a withdrawn plea of guilty should be used in evidence to implicate the accused.

In the case at 'bar there was nothing to suggest that this should have been permitted. In these circumstances, it was illegal to use this withdrawn plea of guilty in the consideration of the question of the admissibility of the confession.

Furthermore, that statement was exculpatory, and if the trial judge had the right to disbelieve all or part of it, he had no right to supply to it, as he did, what was not in it.

The remaining evidence in the record would not reasonably justify a verdict of guilty.

APPEAL from the judgment of the Court of Queen's Bench, appeal side, province of Quebec, affirming the conviction of the appellant on a charge laid under s. 461 of the Criminal Code.

:- CARTWRIGHT J.:-This is an appeal from a judgment of the Court of Queen's Bench for the Province of Quebec (Appeal Side) pronounced on November 22, 1954, affirming, without written reasons, the judgment of Judge Delaney a Judge of the Sessions of the Peace delivered on March 29, 1954, whereby the appellant was convicted of having, during the night of October 16-17, 1952, broken and entered a shop with intent to commit the theft of a safe, contrary to s. 461 of the Criminal Code, and was sentenced to two years imprisonment.

On December 22, 1954, my brother Abbott granted leave to appeal upon the following question of law:- The theory of the Crown was that the offence charged in the indictment had been committed by four persons, namely, Dufour, Aubin, the appellant's brother Jean Paul Thibodeau, and the appellant; that the appellant had driven the other three in his automobile to the shop for the purpose of committing the offence; that Aubin had broken a window to effect the entry; that Aubin, Dufour and Jean Paul Thibodeau had entered the shop and put the safe out through the window; that the appellant had placed his car close to this window so that the others could put the safe in the car; that after the safe had been removed from the building, but before it had been placed in the car, the owner of the shop, who had been warned by an alarm connected from the shop to his house, approached the scene with a flash-light and the four persons mentioned above drove away in the car leaving the safe on the ground. The owner did not recognize any of the culprits nor did he get the licence number of the car.

The appellant was arrested in June 1953. He was indicted and tried separately. At the trial evidence was given by the four persons named above.

The evidence of Dufour supported the theory of the Crown -as outlined above. At the time of giving his evidence Dufour had already been convicted and sentenced for the same offence as that with which the appellant was charged. There were discrepancies between the evidence Dufour gave at the trial and that which he had given at a previous hearing. There was evidence, which he denied, that he had a grudge against the appellant and had threatened to get even with him. Aubin admitted his own participation in the offence but stated that the appellant had had nothing to do with it. Both Jean Paul Thibodeau and the appellant denied having been present at the time of the crime or having had anything to do with it.

It is obvious that if the appellant took part in the commission of the offence charged Dufour was an accomplice. The learned trial judge so regarded him but was of opinion that there were two items of evidence corroborating his story. These were (i) a statement in writing said to have been made by the appellant to a police officer, and (ii) the fact that the appellant when first arraigned on the charge before Judge Boisvert had pleaded guilty. It will be convenient to deal first with the second of these items.

The only indication in the record that the appellant had at any time entered a plea of guilty is contained in the appellant's cross-examination on the voir dire held for the purpose of determining whether or not the written statement alleged to have been made to the police officer should be admitted in evidence. I propose, however, to deal with the matter on the assumption, made by the learned trial judge in his reasons for judgment, that evidence had been tendered and received proving the fact of the appellant having pleaded guilty.

The appellant was arrested on June 16, 1953.

On the following day he was arraigned before Judge Boisvert and pleaded guilty. On this occasion the appellant was not represented by counsel.

On February 1, 1954, the case came before Judge Delaney. The only plea in the record was one of not guilty.

charge was read to the appellant and he again pleaded not guilty. The case was adjourned and finally came on for trial before Judge Delaney on March 22, 1954. What then occurred is set out as follows in the Proces-Verbal:- The record in case 12939 consisted of the evidence, called by the Crown, of Bourque the owner of the store broken into, his daughter Lidia Bourque, Dufour, Aubin, Laroche a police officer, and Poulin from whom the appellant had purchased his automobile, and the evidence, called by the defence, of the appellant Adrien Thibodeau, and of two ladies who gave evidence in support of an alibi for both Jean-Paul Thibodeau and the appellant.

The record included the deposition of Dufour at the preliminary inquiry. Nowhere in this record was there any mention the appellant having 'at one time pleaded guilty.

Immediately following the filing of this record, Laroche and the appellant were examined and cross-examined on the voir dire for the purpose of determining whether the statement, dated June 16, 1953, later filed as Exhibit P-1, should be admitted in evidence. This statement was written out, in the form of question and answer, by the police officer and consisted of two separate sheets, the second of which only was signed by the appellant. The police officer stated that he did not give the statement to the appellant to read but that he had read it to him before he signed it. The appellant's evidence was that he had made a statement in answer to questions put to him by the police officer but that it was substantially different from the statement produced.

The statement which the appellant said he had made to the officer would not have afforded any corroboration of Dufour's evidence but the statement produced by the officer was capable of being regarded as corroboration as it contained an admission by the appellant that he had been present at the scene and time of the crime.

The cross-examination of the appellant on the voir dire Cartwright J. concluded as follows:- Q. Vous avez comparu devant de Juge Boisvert?

R. Oui.

Q. Vous avez plaid coupable?

R. Oui.

Ca c'6tait dix-sept de juin; votre sentence a 6t6 ajourn6e au vingt-trois de juin?

R. Oui.

Q. Lh, vous avez pris un avocat?.

R. Oui.

Vous avez obtenu la permission de changer votre plaidoyer de culpabilit?

R. Oui.

Q. C'est le lendemain que vous tes venu ici devant Juge Boisvert?

R. Oui.

Vous avez plaid6 coupable quand its vous ont lu l'accusation?

R. Monsieur Laroche est venu me chercher pour m'amener devant

Juge. Il m'a dit: "6coute 1I, fais un homme de toi, tiens-toi droit et quand le Juge va te demander coupable ou non coupable, tu diras coupable"

Q. Vous dites que c'est lui qui vous a dit de dire ga?

R. Oui monsier je jure. Je connaissais rien 1It-dedans, j'avais jamais td arrit6 a nulle part, je connaissais rien 1I-dedans.

PAR LA COUR:

Q. Vous pensiez que coupable et non coupable c'6tait pareil, c'6tait mime chose pour vous?

R. Oui. Je connaissais pas

Vous pensiez que c'6tait la mime chose; coupable ou non coupable c'6tait la mime chose pour vous?

R. Je pensais que c'6tait la mime chose.

Je lui ai dit: si je dis coupable, ils peuvent-y me garder?

II dit: non, its te garderont pas, c'est pas toi qui es It-dedans, c'est Dufour et Aubin et ton fr6re, c'est pas toi certain, t'as pas besoin d'avoir peur'; c'est que j'ai dit coupable, c'est pour que j'ai dit coupable.

Q. Le vingt-trois une semaine apres, vous 6tes revenu devant mime Juge avec un avocat, I'avocat Nadeau?

R. Oui.

Q. vous avez obtenu la permission de changer votre plaidoyer?

R. Oui.

Q. Vous avez eu tine enquite prbliminaire?

R. Oui.

Laroche, although present, was not re-called and the appellant's evidence as to why he pleaded guilty is uncontradicted.

Following this the learned trial judge gave judgment on the voir dire holding that the statement was made freely THE and voluntarily and should be received in evidence. In his a g reasons he said in part:- J

L'accus6 nous dit ensuite qu'il a comparu devant un Juge, qu'il a plaid6 coupable, qu'il ne savait pas ce que ga voulait dire, un homme de vingt-et-un ans, il ne voyait pas de diff6rence entre un plaidoyer de culpabilit6 et un plaidoyer de non culpabilit6.

Il ne me semble pas que je serais justifiable, par ces simples constations, d'admettre le t6moignage de l'accus6 pour jeter un doute sur l'officier de police . . .

At the conclusion of the trial the learned judge reserved his judgment until March 29, 1954. On that date he convicted the appellant. In his reasons the learned judge having stated that Dufour's evidence incriminated the appellant and that Dufour was an accomplice instructed himself as follows:- La doctrine veut que le Juge, en appriciant la preuve, doit se rappeler qu'il est fort dangereux de condamner sur le t6moignage non corrobor6 d'un complice, mais il a le pouvoir et il doit le faire si par ailleurs il accorde une croyance entibre et absolue aux complices.

With respect this does not conform to the law as laid down in this Court in Vigeant v. The King (1), followed in Boulianne v. The King (2). In the latter case at page 622 Anglin C.J.C., giving the judgment of the majority of the Court said:- ... the majority of us are of the opinion that there was misdirection in a material matter, in that the learned judge, although he warned the jury properly of the danger of convicting on the uncorroborated evidence of an accomplice, further instructed them, in effect, that if they believed his evidence, although not corroborated, it was their duty to convict . . . It is never correct to say that the jury, or the judge trying a case without a jury, ought to convict on the uncorroborated evidence of an accomplice.

The learned judge then proceeded to deal with the question whether there was corroboration of Dufour's evidence and also with the defence of alibi in the following passage:- Son t6moignage est-il corrobor6? Il y a d'abord la confession que j'ai d6clar6e avoir 6t6 faite librement et volontairement et qui est au dossier. Dans sa confession, il n'admet pas sa participation directe au crime, mais admet s'6tre rendu et dans l'apris-midi et le soir A 1'endroit oft l'effraction a commise et avoir attendu les autres dans le char. Son t6moignage est 6galement corrobord par son admission de culpabilit6 qu'il a faite lors de sa comparution. I a 6th arr~t6, il a comparu devant monsieur le Juge Boisvert, plaid6 coupable A l'accusation telle que port6e.

Le Juge ajourn6 sa sentence quelques jours et lorsque le jour de la sentence venu, 1'accus6, repr6sent6 par un savant procureur, a demand6 de changer son plaidoyer. La Cour lui a permis de changer son plaidoyer. Je trouve une corroboration du t6moignage de Dufour dans la confession de I'accuse, dans le fait qu'il a plaid6 coupable, surtout lorsque fait n'est pas CartwrightJ. expliqu6 d'une fagon raisonnable. Lorsque la Cour lui demande pourquoi il avait d6cid6 de plaider coupable, il nous dit qu'il ne savait pas diff~rence entre un plaidoyer de culpabilit6 et un plaidoyer de non culpabilit6. me semble qu'une excuse de cette nature ne peut pas avoir grand attention et grand m6rite auprbs de la Cour.

Son ami et complice avait plaid6 coupable. il 6tait d6ji condamn6 la prison, il n'6tait pas sans savoir, et il savait bien la diff6rence entre plaider coupable et plaider non coupable.

L'accus6 Thibodeau a t&moign6; il a ni6 sa participation. n6gation, en face de sa confession, ne peut valoir.

De plus, il a fait entendre des t6moins pour faire une preuve d'alibi, preuve par une dame et sa fille, amie d'un des acous6s. Ils ont timoign6 que les deux Thibodeau 6taient chez eux l'apris-midi du crime, qu'ils sont restis IA. pendant trois jours, qu'ils ne sont pas sortis ni 'un ni l'autre, que c'6tait la fete de l'un des deux, que la fete 6t6 c6l6br6e chez elle le samedi.

Ils seraient arriv6s chez elle le jeudi et ils seraient rest6s lh jusqu'au samedi. Cet alibi n'a pas t6 pr6sent6 A 1'enquite pr6liminaire. Je comprends que l'alibi doit 6tre pr6sent6 dans le plus bref d6lai possible, mais que ceci veut pas dire que 1'alibi pr6sent6 au procks ne peut avoir aucune importance, mais il perd sfirement de sa valeur, et dans cas-ci je ne peux pas apporter foi l'alibi, en pr6sence de la confession libre volontaire, du t6moignage de Dufour et 6galement du plaidoyer de culpabilit6 de 1'accuse.

It will be observed that in reaching his judgment on the voir dire, that the statement made to Laroche should be admitted in evidence, the learned trial judge was influenced by the fact that the accused had pleaded guilty; and that in reaching his judgment at the conclusion of the trial he was influenced by both the statement to Laroche and the fact of the plea of guilty in (i) accepting the evidence of Dufour and (ii) rejecting the defence of alibi.

In approaching the question whether the judge presiding at the trial of an accused who has pleaded not guilty should admit evidence that the accused previously pleaded guilty to the charge but was permitted to withdraw such plea it may first be observed that it is clear that at any time before sentence the Court has power to permit a plea of guilty to be withdrawn. As to this it is sufficient to refer to the following cases; R. v. Plummer (1), The King v. Lamothe (2), R. v. Guay (3), and R. v. Nelson (4).

These cases make it equally -clear that the decision whether or not (1) [19021 2 K.B. 339.4

C.C.C.

C.C.C. 243 at C.C.C.

permission to withdraw a plea of guilty should be given rests in the discretion of the Judge to whom the application for such permission is made and that this discretion, if exer- J.0ised judicially, will not be lightly interfered with.

Counsel informed us that they had not been able to find any reported case in the courts of this country or in England in which the question now under consideration has been considered. This may at first seem surprising as there must have been many cases in which a plea of guilty was permitted to be withdrawn and the accused went to trial on a plea of not guilty; but it seems probable that the true explanation of the lack of authority is that suggested by counsel for the defence when he says in his factum:- It is, I think, an inference that may fairly be drawn from the dearth of authority that whenever it has been tendered the courts have refused to admit evidence that an accused had entered a plea of guilty to the charge upon which he was on trial which had later been withdrawn by leave of the Court.

It is highly improbable that such evidence should have been admitted and no redress sought in an appellate tribunal. Be this as it may, I am of opinion that, where a plea of guilty has been withdrawn and a plea of not guilty substituted by leave of the Court, the Judge before whom the case comes for trial following the plea of not guilty should assume that the Judge who granted leave to change the plea did so on sufficient grounds and should treat the original plea, for all purposes, as if it had never been made.

In Wigmore on Evidence 3rd Edition, Vol. IV, page 66, s. 1067, the learned author says:- I have examined the authorities referred to and prefer the reasoning of those judges who have held the evidence in question inadmissible. In my opinion the dissenting judgment of Wheeler J. in State v. Carta (1), deals satisfactorily with the question and reaches the right conclusion. I refer particularly to the following passage at page 415:- Considerations of fairness would seem to forbid a court permitting for cause a plea to be withdrawn, and at the next moment allowing the fact CartwnghtJ. of the plea having been made, with all its injurious consequences, to be admitted in evidence as an admission or confession of guilt by the accused. The withdrawal is -permitted because the plea was originally improperly entered.

No untoward judicial effect should result from the judicial rectification of a judicial wrong.

The majority hold that the fact that the former plea may be explained will be a sufficient protection to the accused.

Such a ruling places upon him a 'burden of disproving a fact which does not exist; for the withdrawal eradicated it.

It brings him before the jury under the heavy cloud of suspicion created by his plea of guilty when he is entitled to come before the jury with the presumption of innocence shielding him. It makes him prove again that his plea was wrongly entered when that fact has already been judicially ascertained and settled by a court competent jurisdiction and cannot be opened unless a higher court finds an abuse of that court's discretion.

For the above reasons I have reached the conclusion that on the trial of an accused who has pleaded not guilty evidence that he had previously pleaded guilty to the charge but had been allowed to withdraw such plea is legally inadmissible; from which it, of course, follows that evidence of the former plea -can neither be given for the prosecution nor elicited from the accused in crossexamination.

It should perhaps be mentioned in passing, that, even if the question of the admissibility of evidence of the withdrawn plea in the case at bar had fallen to be determined under the rules regarding extra-judicial confessions, the evidence ought clearly to have been rejected in view of the uncontradicted evidence quoted above as to the representations made by a person in authority to the appellant while in custody which influenced him to enter the plea. For the above reasons it is my opinion that the learned trial judge erred in admitting evidence that the appellant had previously entered a plea of guilty and in treating such evidence as corroboration of the evidence of Dufour. It is next necessary to consider whether the learned trial judge erred in admitting the written statement Exhibit P.1. After an anxious consideration of the evidence given on the (1) Atl.

voir dire, I entertain grave doubt as to whether the prosecution can be said to have discharged the onus of shewing that the statement should be admitted. It appears to me, moreover, that it cannot safely be affirmed that the learned judge would have decided to admit the statement if he had not been influenced by the evidence of the plea of guilty which he ought to have rejected altogether.

That he was so influenced appears clearly from the passage from his reasons for judgment on the voir 'dire quoted above. In the result I conclude that the decision of the learned judge on the voir dire can not be supported. Apart altogether from what I have said in regard to the admission of the statement P.1, the wrongful admission of evidence as to the withdrawn plea of guilty and the very considerable weight given to it by the learned judge in his reasons for convicting the appellant would be fatal to the validity of the conviction, which must accordingly be quashed.

It remains to consider what further order should be made. After a careful reading and re-reading of all the evidence, I am of opinion that on the evidence in the record which was properly admitted it would have been unreasonable to convict the appellant and that we ought not to direct a new trial.

I would accordingly 'allow the appeal, quash the conviction and direct a judgment of acquittal to be entered. :- J.:-L'appelant se pourvoit h 1'encontre d'une decision de la Cour d'Appel confirmant un jugement de culpabilit6 prononc6 contre lui par M. le Juge Delaney, de la Cour des Sessions de la Paix de la province de Qu6bec. Les membres de la Cour d'Appel n'ont donn6 individuellement aucune raison supportant la d6cision; et le seul consid~rant apparaissant au jugement formel est A 1'effet qu'il n'y a pas d'erreur dans le jugement de premibre instance. En toute d6f6rence, il m'est impossible de concourir dans ces vues. Bref, cette d6claration de culpabilit6 repose sur le timoignage du complice Dufour, lequel est contredit par celui d'un autre complice exon6rant l'appelant de toute participation coupable dans l'affaire. Pour donner effet A la version de Dufour, le Juge de premibre instance a erron6ment, A mon avis, accept6 comme corroboration du t6moignage de ce complice (i) le fait d'un plaidoyer de culpabilith que l'accus6 enregistra d'abord et que M. le Juge Boisvert, un autre Juge de la m~me Cour, lui.permit subs6quemment de retirer pour y substituer un plaidoyer de non culpabilit6; (ii) une pr6tendue confession de 1'accuse a la police.

(i) Le fait du plaidoyer de culpabilit6. Comme le signale mon colligue le Juge Cartwright en ses notes, il est clair que la jurisprudence relative h la demande de retrait d'un plaidoyer de culpabilit4 6tablit que la d6cision sur telle demande teste h la discr6tion du Juge h qui elle est faite et que les tribunaux d'appel n'interviendront pas sans raisons s6rieuses sur cette decision, si cette discr6tion a 6t6 exerc6e judicieusement.

Dans le dossier actuel, rien ne sugg&re qu'une telle intervention eut t6 justifi6e.

A mon avis,

I'esprit de cette r6gle guidant les tribunaux d'appel sur la question doit 6galement guider le Juge au procks, quant h l'utilisation en preuve du fait de ce changement de plaidoyer pour impliquer l'accus6.

Dans les circonstances, c'est ill6galement que le Juge au procks a accept6 comme preuve corroborant le t6moignage du complice, que I'accus6 avait d'abord plaid6 coupable A l'accusation.

(ii) La confession.

Il faut dire d'abord que pour conclure h l'admissibilit6 de cette confession, le Juge a encore pris en consid6ration le plaidoyer de culpabilit6 en premier lieu enregistr6 par l'accus6; ce qui, pour les raisons d6jh indiqu6es, 6tait illegal. De plus, ces declarations faites h la police par l'accus6 sont exculpatoires; elles comportent une negation complte de toute participation coupable en l'affaire. Sans doute, le Juge avait le droit de ne pas croire h la v6rit6 de toutes ou partie de ces d6clarations; mais droit n'implique pas celui de suppl6er aux d~clarations qu'elles ne comportent pas, soit, en particulier, comme il est mentionn6 au jugement de culpabilit6, le fait que 1'appelant aurait attendu dans son automobile les personnes impliqu6es dans cette affaire. C'est donc affirmativement qu'il faut rdpondre h la question de droit sur laquelle permission d'appeler a 6t6 donnie, savoir:-