Bigaouette v. The King

seven o'clock in, the morning or even before.

The accused was at that time in the house according to his own declaration to police officers. The accused was then alone with -his mother when she was killed; and if so, the defence should have been able to explain by KINo. whom the murder has been committed, because such a brutal murder could not have been committed without the knowledge of the accused." Held that, although the language of the charge might be understood as relating to a failure of the accused to give an explanation to police officers or others, it is also easily and naturally capable of being understood as relating to the failure of the accused to testify upon that subject at the trial; and therefore such language is obnoxious to the imperative direction of subs. 5 of s. 4 of the Canada Evidence Act which requires the trial judge to abstain from any comment upon the failure of an accused to take advantage of the privilege which the law gives him to be a witness at the trial in his own behalf. The accused is entitled to a new trial.

APPEAL from the decision of the Court of King's Bench, appeal side, province of Quebec, upholding the conviction of th e appellant for murder.

The material facts of the case and the question at issue are stated in the above head-note and in the judgment now reported.

*

DUFF J.-As a new trial is necessary, and since the crime with which the accused is charged is one of the greatest gravity, it is important to adhere rigorously to the practice of refraining from any 'comment on the circumstances of the case, beyond that which is strictly necessary in order to elucidate the point upon which the decision of the appeal turns.

It should be said at the outset that the jurisdiction of this court rests upon the dissent of Mr. Justice Allard, and in particular upon his view, in which he was not in agreement with his colleagues, that the learned trial judge, in instructing the jury, had failed to observe the imperative direction of subs. 5 of s. 4 of the Canada Evidence Act, which, in effect, requires the trial judge to abstain from any comment upon the failure of the accused to take advantage of the privilege which the law gives him to be a witness at the trial in his own behalf.

KiNa.

The learned trial judge said:

Duff J.

Le doeteur Marois a fait l'autopsie A trois heures et quart, et si vous croyez son t6moignage (c'est un homme dont le timoignage a du poids), il a d6clar6 que la mort avait dG arriver A sept heures, ou b six heures et mgme avant, du matin.

Voila les circonstances qui enveloppent la mort de la d6funte. Si la mort, mes amis, remonte A six heures ou A sept heures du matin, 6tait l'accus6 A ce moment-lA, vers sept heures ou six heures du matin, mime plus A bonne heure?

A la maison.

A la maison. Car, d'apris sa propre d6claration, il n'est sorti qu'A huit heures du matin. II 6tait donc seul avec sa mere a la maison quand la mort est arriv6e et si l'accus6 6tait seul avec sa mbre quand elle a 6t6 tu6e et 6gorg6e, la d6fense aurait dfi 6tre capable d'expliquer par qui ce meurtre a 6t6 commis. Car une pareille boucherie n'a pas se faire, sans que I'accus6 en eut connaissance.

It seems to be reasonably clear -that, according to the interpretation which would appear to the jury as the more natural and probable one, the comment implied in this passage upon the failure of la d6fense to explain who committed the murder would, having regard to the circumstances emphasized by the learned trial judge, be this, namely, that it related to the failure of the accused to testify upon that subject at the trial. It is conceivable, of course, that such language might be understood as relating to a failure to give an explanation to police officers or others; but the language of the charge is so easily and naturally capable of being understood in the other way, that it seems plainly obnoxious to the enactment referred to, subs. 5 of s. 4, R.S.C., c. 145. The law, in our opinion, is correctly stated in the judgment of Mr. Justice Stuart in Rex v. Gallagher (1), in these words:

* * * it is not what the judge intended but what his words as uttered would convey to the minds of the jury which is the decisive matter. Even if the matter were evenly balanced, which I think it is not, and the language used were merely just as capable of the one meaning as the other, the position would be that the jury would be as likely to take the words in the sense in w'hich it was forbidden to use them as in the innocuous sense and in such circumstances I think the error would be fatal. There must be a new trial.

Appeal allowed. (1) (1922) 37 Can. Cr.

British Columbia (1), affirming the judgment of Gregory J., and maintaining the respondent's action on a cheque. The facts of the case are fully stated in the judgment now reported.

Geo. F. Henderson K.C. for the appellant.

M. H. Ludwig K.C. for the respondent.

J.-The several rights and liabilities arising out of two transactions which took place in Vancouver (of the 17th of August, 1923), are in question.

By that on which the counter-claim is founded, Harris purchased from Sullivan Dominion bearer bonds of the par value of $17,000, for which Harris gave his cheque on the Vancouver branch of the Home Bank.

Of these bonds, Harris deposited in that branch bonds of the par value of $6,000, which sum was placed to his credit. Against this credit, he drew a cheque for a sum slightly in excess of it, had it certified by the bank, and negotiated it.

Shortly after Harris received the bank's certification, the Vancouver branch suspended payment, and, Sullivan's bank refusing for this reason to accept cheques on the Home Bank, Sullivan demanded from the Home Bank the return the bonds he had sold to Harris, and, by his counter-claim, seeks to enforce the demand so advanced. By the other transaction, Sullivan purchased from Harris Dominion bonds of the par value of $10,000, for which he gave to Harris his cheque on the Standard Bank of Canada for $10,657.70, which cheque Harris deposited to the credit of the account of Harris & Co. in the Home Bank, and, through this deposit and others made on the same day, Harris & Co's. account was put in credit to the amount of $31,496.57; and on the same morning, before the suspension, Harris' cheques were, on the strength of this credit, accepted by the Home Bank and paid, to the amount of $32,000 odd.

Sullivan, on learning of the suspension, stopped payment of his cheque, and the bank, by this action, seeks to enforce payment of it.

The head office of the bank in Toronto had suspended payment some hours before the suspension in Vancouver; and it was contended, in support of the appeal, that by reason of this fact the bank became incapacitated from acquiring a title to the Victory bonds in question or to the cheque sued upon.

As to the first mentioned transaction, the bearer Victory bonds were negotiable instruments which the bank acquired for value, and without notice of any defect in Harris' title. It is plain that the bank is entitled to keep the bonds unless there was such a total incapacity to acquire title to them as to make the delivery of them an absolute nullity. As to the last mentioned transaction, Sullivan retains the consideration for which the cheque was given.

There again, unless the bank was totally disabled from acquiring a title, the appellant obviously fails.

Accordingly, the appellant rested his appeal upon the proposition that, by force of the suspension, which went into effect in Toronto before these transactions took place, but without the knowledge of the Vancouver officials (who learned of it after they had taken place), the bank was by law struck with such incapacity.

It seems sufficient to say that there is no warrant for such a proposition in the statutory provisions upon which the appellant relies. The Bank Act (s. 117), provides for the appointment of a curator " forthwith " when the bank suspends payment. The curator is then to have supervision over the affairs of the bank, until the bank resumes business or a liquidator is appointed. There is no suggestion in this section that the corporate capacity of the bank to acquire property or to carry on business ceases to exist. It still exists, but is, subject to the provisions of the Act, to be exercised under the supervision of the curator, whose immediate appointment the section contemplates. As to the situation during the period intervening between the suspension and his appointment, the only pertinent provision appears to be that contained in s. 146, which makes it an offence for any officer of the bank to pay any debt of the bank with knowledge of suspension without assent by the curator or liquidator; a provision -which implies no declaration of the bank's incapacity to acquire property when that takes place in the ordinary course of business and through the agency of officers having no knowledge of a suspension.

The appeal should be dismissed with costs.

J.-Having perused and considered the judgment of my brother Duff J. herein in regard to the appeal from the Court of Appeal for British Columbia, I agree with the reasoning therein and the conclusion reached that the appeal should be dismissed with costs.

Appeal dismissed with costs.