Supreme Court Judgments

Supreme Court of Canada

Avon v. R., [1971] S.C.R. 650

Date: 1971-02-01

Robert Avon Appellant;

and

Her Majesty The Queen Respondent.

1970: December 3; 1971: February 1.

Present: Fauteux C.J. and Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Criminal law—Non-capital murder—Jury trial—Judge’s instruction to the jury—Comments on accused failure to testify—Testimony of accomplice—Substantial wrong or miscarriage of justice—Canada Evidence Act, R.S.C. 1952, c. 307, s. 4(5)—Criminal Code, 1953-54 (Can.), c. 51, ss. 202A(3), 206(2), 592(1)(b)(iii).

The appellant was found guilty by a jury of non-capital murder. His appeal was dismissed by a unanimous decision of the Court of Appeal. He was granted leave to appeal to this Court and limited his grounds of appeal to the two grievances concerning the judge’s address to the jury to which the Court of Appeal devoted its attention, namely: (a) comments on the accused’s failure to testify, and (b) failure to give the necessary instructions regarding testimony by an accomplice.

Held (Hall and Spence JJ. dissenting): The appeal should be dismissed.

Per Fauteux C.J. and Martland, Judson, Ritchie and Pigeon JJ.: The language used by the trial judge was a statement of an accused’s right not to testify, rather than a comment on his failure to do so. The instructions cannot be construed as prejudicial to the accused or such as to suggest to the jurors that his silence was used to cloak his guilt.

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Even if the remarks may be construed in a manner contrary to the provisions of s. 4(5) of the Canada Evidence Act, no substantial wrong or miscarriage of justice occurred, and the verdict would necessarily have been the same had the judge not made them. In view of the record this is a case where the provisions of s. 592(1) may validly be applied.

As to the trial judge’s failure to instruct the jury on an accomplice’s testimony, the Court of Appeal has rightly found that no substantial wrong or miscarriage of justice had occurred.

Per Hall and Spence JJ., dissenting: The trial judge was in breach of s. 4(5) of the Canada Evidence Act and the provisions of s. 592(1)(b)(iii) cannot be used to dismiss the appeal. The decision of McConnell and Beer v. The Queen, [1968] S.C.R. 802, does not apply on either point. It could not be said that a jury properly instructed could reasonably come to no other conclusion than that the appellant was guilty.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec1, affirming the appellant’s conviction for non-capital murder. Appeal dismissed, Hall and Spence JJ. dissenting.

J.P. Ste-Marie, Q.C., for the appellant.

Bruno Pateras, for the respondent.

The judgment of Fauteux C.J. and of Mart-land, Judson, Ritchie and Pigeon JJ. was delivered by

THE CHIEF JUSTICE—The appellant was found guilty by a jury presided by Cousineau J., of having, in Montreal, on November 25, 1965, unlawfully caused the death of Madeleine Legault, thereby committing the crime of non-capital murder described in the provisions of ss. 202A(3) and 206(2) of the Criminal Code.

Avon appealed from this verdict, and his appeal was dismissed by a unanimous decision of the Court of Appeal[1], then composed of Tremblay C.J. and Casey, Rinfret, Owen and Montgomery JJ. The Court, stating that all other

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grounds of appeal were ill-founded, devoted its attention to two grievances concerning the judge’s address to the jury, namely: (i) comments on the accused’s failure to testify, and (ii) failure to give the necessary instructions regarding testimony by an accomplice. It was decided, on the one hand, that the remarks by the trial judge complained of did not violate the provisions of s. 4(5) of the Canada Evidence Act, and that they could not be taken as a prejudicial comment, such as to justify an order for a new trial. On the other hand, it was considered that the judge erred in law in omitting to instruct the jury as to the testimony of an accomplice; judging, however, that on the record, a reasonable jury legally instructed on this point would necessarily have found the accused guilty of non-capital murder and pointing out that no substantial wrong or miscarriage of justice had occurred, the appeal was dismissed as authorized by the provisions of s. 592(1) (b) (iii).

The appellant was later granted leave to appeal from this judgment to this Court.

Let us summarize the evidence as to the facts surrounding the death of Madeleine Legault. Early in the afternoon of November 25, 1965, the appellant, Robert Avon, accompanied by Henri Latulipe, went to Madeleine Legault’s apartment. They found her there, with a friend, Nelson Laliberté. The four spent part of the afternoon there drinking, in large quantity, some of them wine and the others beer. A dispute eventually broke out between Avon and the victim. Words were exchanged: Avon accused Madeleine Legault of being a “stool”, and she called him a “bastard.” Laliberté told her to shut up and, as she continued, he slapped her. Avon hit her and punched her to the floor. He bent over her and continued to strike her with his fists and feet.—According to Latulipe, Laliberté, who denies this, was also striking the victim at this point.—The latter, who was bleeding from the lower part of her face and her nose, begged Avon to stop; Laliberté and Latulipe asked Avon to stop, but he continued. When he finally ceased hitting her, Laliberté and Latulipe put the victim on her bed, where the three men eventually abandoned her and left the apartment. According to Latulipe, she was no longer speaking and was gasping. At

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six o’clock that afternoon, police officers found her dead in her bed. At about seven o’clock, Dr. Valcourt, a pathologist, went to the apartment and certified the death, which he put at between 3 and 4 o’clock that afternoon. The nature of the recent wounds observed by him on the victim’s body confirms the evidence that she had been savagely beaten that afternoon. The doctor attributed death to the fact that she inhaled blood while she was unconscious due to a meningeal hemorrhage caused by blows inflicted on her head.

At the outset of the hearing before this Court, counsel for the appellant stated that he would limit his grounds of appeal to the two grievances to which the Court of Appeal devoted its attention.

As to the first, based on s. 4(5) of the Canada Evidence Act, these are the passages complained of in appellant’s factum, and reported at pages 126 and 136 of the joint case:

[TRANSLATION] The accused did not testify. Evidently, he could have done so. He is not obliged to do so. I must tell you immediately, because it is better to say it, it is not because the accused did not testify that you should believe that he could be guilty. His absence from the witness box, the fact that he did not testify and did not call any witnesses, has nothing to do with the trial. Because you will have to come to your decision only on the well-established principle that the Crown must prove and establish the guilt of the accused.

* * *

Actually, you have merely the Crown’s evidence. The defense did not call witnesses, and the accused did not testify: he did not have to. It is up to the Crown to prove its case.

Section 4(5) of the Canada Evidence Act provides that:

4. (5) The failure of the person charged, or of the wife or husband of such person, to testify, shall not be made the subject of comment by the judge, or by counsel for the prosecution.

As is known, there is a similar provision, applying to counsel for the prosecution and not the judge, contained in s. 1(b) of the imperial statute The

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Criminel Evidence Act (1898), 61-62 Vict., c. 36. In Ross v. Boyd[2], it was held regarding this provision that:

The object of the Criminal Evidence Act was, while conferring on the accused the right to give evidence, to prevent his suffering prejudice—if he did not choose to exercise the right—by the prosecutor commenting upon his failure to give evidence.

and the judge added:

…there was no authority for the proposition that such comment was in all cases a reason for quashing the conviction.

The real meaning, intention and spirit of the provisions of s. 4(5) of our Evidence Act were recently considered by this Court in McConnell and Beer v. Her Majesty the Queen[3]. Expressing the views of the majority, Ritchie J. stated, as set out in the headnote to the decision:

This section was enacted for the protection of accused persons against the danger of having their right not to testify presented to the jury in such fashion as to suggest that their silence is being used as a cloak for their guilt. It would be “most naive” to ignore the fact that when an accused fails to testify, there must be at least some jurors who say to themselves, “if he didn’t do it, why didn’t he say so.” It is for this reason that it is of the greatest importance that a trial judge should remain unhampered in his right to point out to the jury that there is no onus on the accused to prove his innocence by going into the witness box. To construe s. 4(5) of the Canada Evidence Act as interfering with that right not to testify would be contrary to the purpose of the section itself.

I do not think I should add to our colleague’s comments, regarding the cases The King v. McLean[4], Kelly v. The King[5], Bigaouette v. The King[6] and Wright v. The King[7]. However, relying on the concise and accurate distinction made

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by Ritchie J. in McConnell and Beer, supra, I would say that the language used by Cousineau J. is a “statement” of an accused’s right not to testify, rather than a “comment” on his failure to do so. In my opinion, the instructions complained of cannot be construed as prejudicial to the accused or such as to suggest to the jurors that his silence was used to cloak his guilt. On the contrary, by telling them, as stated above: “His absence from the witness box, the fact that he did not testify and did not call any witnesses, has nothing to do with the trial,” the learned judge, in a manner favourable to the accused, set aside the acknowledged right of any judge of the fact—judge or jury—to consider whether the evidence produced by the prosecution is such that, in the absence of explanation or contradiction, it can validly justify a conviction. Undoubtedly, the Crown retains the burden of proof at all times, right to the end of the trial. It does not follow, however, that one should confuse the two meanings and the significance which doctrine and jurisprudence (see especially Latour v. The King[8]) assign to the expression “burden of proof,” and which Phipson on Evidence, 8th ed., explains as follows, at page 27:

As applied to judicial proceedings, the phrase “burden of proof” has two distinct and frequently confused meanings: (1) The burden of proof as a matter of law and pleading—the burden, as it has been called, or establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) The burden of proof in the sense of introducing evidence… So in criminal cases, even where the second, or the minor burden of introducing evidence is cast upon or shifted to the accused, yet the major one of satisfying the jury of his guilt beyond a reasonable doubt is always upon the prosecution and never changes; and if, on the whole case, they have such a doubt, the accused is entitled to the benefit of it and must be acquitted.

Even if the remarks complained of by appellant may be construed in a manner contrary to the provisions of s. 4(5) of the Canada Evidence Act, I would say that no substantial wrong or miscarriage of justice occurred, and that the

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verdict would necessarily have been the same had the judge not made them. In view of the record, I am of the opinion, as was held by the Court of Appeal, that this is a case where the provisions of s. 592(1) may validly be applied. While it must be admitted that the applicability of these provisions to cases of an infringement of s. 4(5) may have in the past given rise to a jurisprudence somehow lacking in uniformity, that should no longer be so. Indeed, we are bound by the judgment of this Court in McConnell and Beer, supra, where at the end of his reasons, Ritchie J. said:

As I do not consider that the remarks made by the learned trial judge concerning the accused’s right to keep silent were obnoxious to the statutory direction contained in s. 4(5) of the Canada Evidence Act, I would dismiss this appeal on that ground, but I am in any event satisfied that even if they could have been so construed, they could not have had any effect upon the outcome in the present case.

This conclusion contains the two reasons on which dismissal of the appeal was based, and the second of these necessarily involves application of the provisions of s. 592(1) in cases where there is a breach of s. 4(5). With all due respect for the contrary opinion, the second reason should not be held as obiter dictum. On this aspect of the matter, the principle stated in London Jewellers, Ltd. v. Attenborough[9] is to be applied:

We are not entitled to pick out the first reason as the ratio decidendi of the case and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first; we must take both as forming the ground of the judgment.

As far as the second grievance raised by appellant is concerned, namely the trial judge’s failure to instruct the jury on an accomplice’s testimony, Owen J. speaking on behalf of all his colleagues on the Court of Appeal, stated:

However, after considering the record I am of the opinion that a reasonable jury, after being properly

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directed, would necessarily have found the Appellant guilty of non-capital murder. Therefore, I think this is a case for the application of the provisions of Section 592(l)(b)(iii) Cr. C. In my opinion no substantial wrong or miscarriage of justice has occurred by reason of the defective charge with respect to accomplices.

I respectfully agree with these views, and would only add this passage taken from the reasons of Sloan C.J. in The Queen v. Pavlukoff[10]:

…the fact that accused did not testify in the face of inculpatory facts was a matter which the Court of Appeal could place on the scale in applying s. 1014(2).

For all these reasons, I would dismiss the appeal.

The judgment of Hall and Spence JJ. was delivered by

SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal of the Province of Quebec[11] pronounced on March 28, 1969. The Court of Appeal of the Province of Quebec affirmed the conviction of the appellant on a charge of non-capital murder contrary to s. 202A(3) of the Criminal Code.

In his notice of appeal to the Court of Appeal, the appellant raised a large number of grounds of appeal and in this Court pursued two of them. I find it necessary to deal with only one ground and I express no opinion on the other ground of appeal urged.

It was submitted for the appellant that on two occasions in his charge to the jury the learned trial judge commented on the fact that the appellant had not testified in his defence and that that comment is, therefore, a breach of s. 4(5) of the Canada Evidence Act, R.S.C. 1952, c. 307. That subsection is very brief. I quote it in full:

4. (5) The failure of the person charged, or of the wife or husband of such person, to testify, shall not be made the subject of comment by the judge, or by counsel for the prosecution.

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Almost at the beginning of the charge delivered by the learned trial judge, he said in paragraph 4:

[TRANSLATION] There is also one principle which you must keep before you, an essential principle, that it is always up to the Crown to establish the guilt of the accused. This means that when the accused comes before his peers, namely before you, he is presumed innocent. It was up to the Crown to adduce evidence to substantiate the crime with which he is charged, to establish that it was committed by him. In other words, the Crown always has the burden of proof, never the accused; and this leads me to embark upon an immediate digression. The accused did not testify. Evidently, he could have done so. He is not obliged to do so. I must tell you immediately, because it is better to say it, it is not because the accused did not testify that you should believe that he could be guilty. His absence from the witness box, the fact that he did not testify and did not call any witnesses, has nothing to do with the trial. Because you will have to come to your decision only on the well-established principle that the Crown must prove and establish the guilt of the accused.

Again, almost at the end of the charge, the learned trial judge said:

[TRANSLATION] Gentlemen, you have heard two witnesses. There were three persons in this adventure. I am not saying in the adventure of the beating, but there were three persons in on the drinking. The Crown stresses that to be fair to all concerned, I think the defence would agree, this is a question which may be of interest in their evidence on the question of the witnesses’ credibility. This means that if by taking account of the fact that these persons were there, you can decide whether their evidence is interested—could they have an interest in telling or not telling the truth? You will have to consider this. On the other hand, the fact that a person was on the scene of the crime does not mean that he has a reason for not telling the truth. There again, I stress that you are free to believe them or not. That is your privilege. Before disbelieving someone, however, you must reflect carefully and consider whether the witness in question had an interest in lying. Actually, you have merely the Crown’s evidence. The defence did not call witnesses, and the accused did not testify: he did not have to. It is up to the Crown to prove its case. You have what evidence there is; you must accept it. If you come to the conclusion that the witnesses were not speak-

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ing the truth, that is another matter. You must be convinced, the evidence must prove to you that the accused struck the blow. If you don’t believe the witnesses—there were two witnesses, Laliberté and Latulippe—do you have any reason to reject them? That will be up to you to decide. Personally, I do not see any reason. The decision rests with you. Are they interested? Finally, did they have any reason for not telling the truth? That will be for you to decide. I do not see any special reason. It is well to point this out to you, it has been brought to your attention. This is not a case of a witness passing by on the street, who is totally independent. You can ask yourselves, “Did they have any special reason for lying, for not telling the truth?”

The question with which I am concerned is whether the learned trial judge in either of the portions of the charge which I have quoted above was in breach of the said s. 4(5) of the Canada Evidence Act and if he were so in breach then may the provisions of s. 592(1) (b) (iii) be used to dismiss the appeal despite such error in law.

Counsel for the respondent Attorney General urges the decision of this court in McConnell and Beer v. The Queen[12], where, again, both of the issues were considered. There is, however, considerable question as to whether the decision in McConnell and Beer v. The Queen may be applied to the facts in the present case and it is necessary, in order to come to a conclusion thereon, to examine very carefully the circumstances both in that case and in the present one. In the former case, the two accused men had been arrested under most incriminating circumstances. The accused Beer gave to the police, at the time of his arrest, a statement in which he sought to explain the presence in the automobile at the wheel of which he sat of various instruments which were, no doubt, instruments of housebreaking and the accused McConnell similarly explained his presence outside the car under an open window of a nearby dry cleaning establishment. Neither accused gave evidence but their counsel during cross-examination of the constable who was called as a Crown witness elicited these statements from the constable. After the learned trial

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judge had delivered his charge to the jury to which no exception could be taken on the issue presently under consideration, counsel for the accused submitted:

Your Honour, you said when referring to the explanation of Mr. McConnell that the statement was not made under oath, and you said it is up to you to decide, was he there for that reason only. I believe it is not incumbent upon the accused to prove that was the only reason. The onus would be on the Crown to prove that that was not the only reason.

The objection of counsel as stated to the learned trial judge was based on a sentence in the charge of the learned trial judge which sentence was as follows:

The explanations of Mr. Beer were not made under oath and you do not have to accept them. Consider the circumstances under which they were made and then decide. If you have any reasonable doubt, then you must give the accused the benefit of the doubt.

It will be seen that neither the sentence in the charge to which counsel for the accused objected nor the actual objection submitted by that counsel dealt with any statement as to the failure of the accused to give evidence.

The learned trial judge, however, then recharged the jury in these words:

Gentlemen of the jury, it was pointed out that in the course of my charge to you I stated that you did not have to accept the explanations of the accused because those explanations were not made under oath. You are not to take it from that that there is any onus upon the accused to prove their innocence by going into the witness box and testifying in their defence. There is no such onus on these or any accused persons in any criminal trial of proving their innocence by going into the witness box and testifying in their own defence. You are not to be influenced in your decision by either of the accused not going into the witness box and testifying, but the Court does point out that these explanations were given and when made were not made under oath and it is not only for that reason alone, but for any number of reasons that may occur to you, to decide if you will accept those explanations.

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Mr. Justice Ritchie, in giving judgment for the majority of this Court, was of the opinion that the paragraph last above quoted did not amount to a comment contrary to the provisions of s. 4(5) of the Canada Evidence Act. This was the conclusion reached by the majority of the Court of Appeal for Ontario and expressed in the reasons of Mr. Justice Evans for that Court. Mr. Justice Ritchie said at p. 809:

Here the language used by the trial judge to which objection is taken was not so much a “comment” on the failure of the persons charged to testify as a statement of their right to refrain from doing so, and it does not appear to me that it should be taken to have been the intention of Parliament in enacting s. 4(5) of the Canada Evidence Act to preclude judges from explaining to juries the law with respect to the rights of accused persons in this regard.

It must be remembered that what the learned trial judge was commenting on in both his original charge and in the recharge was not the failure of the accused to give evidence but that the counsel for the accused was advancing as the defence of that accused a statement made by the accused persons not under oath and made to the constable at the time of their arrest. It is true that perhaps by accident there slipped into his recharge on three occasions the phrase “by going into the witness box and testifying in their defence”. The whole purport of both the charge and the recharge, however, was not a comment on failure to testify but rather a comment on the urging of a defence not supported by sworn testimony given either on behalf of the Crown or the accused. Mr. Justice Ritchie, in coming to his conclusion, in my opinion, relied on two previous decisions of this Court: firstly, Kelly v. The King[13] and secondly, Wright v. The King[14].

In the Kelly case, again the accused had not given evidence but he had been permitted to address that jury after the end of the Crown’s case and in doing so made a number of state-

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ments of fact. The trial judge, in his charge, had pointed out that such a method was not the one by which a defence could be adduced but that the jury was entitled to the guarantee of an oath before they should consider the statements made by the accused in such a fashion. Kelly v. The King came to this Court on an appeal from the judgment of the Court of Appeal of Manitoba upon a case reserved by Mr. Justice Prendergast, the presiding judge at the trial. The fifteenth question submitted upon such reserved case was:

15. Was I right in my comments upon the statement of the accused to the jury, with respect to it not being made under oath, and, if so, was this prejudicial to a fair trial of the accused or a violation of the “Canada Evidence Act?”

Idington J. said at p. 246:

As I gather from the learned judge’s charge he felt he had erred and tried to rectify it by pointing out that statements of the accused in an address are not evidence and are not to be treated as such. He would have erred if he had failed under such circumstances in making plain as he did the law on the subject.

Duff J., as he then was, said at p. 259:

As to the first of these grounds I can find nothing which, when fairly construed, amounts to such comment within the meaning of the statutory prohibition.

And Anglin J., as he then was, said at p. 263:

There was no comment whatever on the failure of the accused to testify. His right to do so was not mentioned during the trial. The learned judge merely discharged his duty in warning the jury against treating the statement which he had allowed the accused to make as the equivalent of sworn testimony.

I am, therefore, of the opinion that Kelly v. The King falls within exactly the same class as McConnell and Beer v. The Queen. Both hold that a warning to the jury that they should not consider as evidence unsworn statements made by the accused person, in the former in his address following the Crown’s case and in the latter

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in statements made to a constable at the time of arrest, was not a breach of s. 4(5) of the Canada Evidence Act. In my view, warnings to the jury that they must depend, in arriving at their verdict, upon sworn evidence are very different from a statement to the jury that the accused has not given evidence in his own defence.

In Wright v. The King, Chief Justice Rinfret, referring to Rex v. Gallagher[15], said at p. 326:

We have nothing of the kind here. The accused appellant was no where mentioned in those portions of the charge which are objected to. In the last two paragraphs above mentioned the only statement in the charge is that the evidence of the victim is “the only evidence we have”; and, as to the first statement: “her evidence is not denied”, the learned Judge no doubt was referring there to the fact that, in the course of Mrs. Bosnia’s evidence, she said that on her way back to Halifax she had told Mr. Bell that she had been attacked and Mr. Bell confirmed that; also that when she reached her house she had told Mrs. Marriott that she had been mistreated and had described such mistreatment by saying that the appellant “had tried to rape her” and “she said that he did”. Not only was that not denied, but it was confirmed by Mrs. Marriott.

We think the Bigaouette case, [1927] S.C.R. 112, certainly goes as far on that subject as this Court would care to go and, like the majority of the Court of Appeal, we are unable to find that the remarks here complained of could have any effect on the jury as being a comment “obnoxious to the statutory direction”.

Again, what was being considered was not a direct statement by the trial judge that the accused had not testified in his own defence but statements made by the trial judge that certain evidence was not denied when at least part of that evidence could have been denied by others than the accused. As to the comments of the Chief Justice, “we think the Bigaouette case certainly goes as far on that subject as this court would care to go…”, it must be pointed out that Chief Justice Rinfret was a member of the Court

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in the Bigaouette case and that he concurred in the judgment given for the Court by Duff J., as he then was.

My personal view is that the comments of the Chief Justice in the Wright case in reference to the Bigaouette case may be applied with equal force to decisions in both the Wright case and the McConnell and Beer case so that neither of those cases should be extended to apply to such situations as the present one where there was a direct and repeated statement by the learned trial judge that the accused had failed to testify. I am of the opinion, on the other hand, that that situation is covered by the decision of this Court in Bigaouette v. The King[16], where Duff J., as he then was, gave a very short judgment dealing with a charge in which the learned trial judge had said. I here translate and summarize: Doctor Marois has made an autopsy and he has declared that death occurred by six or seven o’clock in the morning. You see the circumstances which surrounded the death of the deceased. If the death, my friends, occurred at six o’clock or seven o’clock in the morning, the accused was at that moment present in the house for, by his own statement, he had not left until eight o’clock in the morning. He was alone with his mother in the house when death came and if the accused were alone with his mother when she was killed the defence would be able to explain by whom this murder had been committed.

Duff J. said at p. 114:

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 défense 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.

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145. The law, in our opinion, is correctly stated in the judgment of Mr. Justice Stuart in Rex v. Gallagher (1922) 37 Can, Cr.C. 83, 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 which it was forbidden to use them as in the innocuous sense and in such circumstances I think the error would be fatal.

(The underlining is my own.)

It will be seen that Duff J., as he then was, interpreted the words of the charge to be a direct comment on the failure of the accused to give evidence. The words, of course, were not nearly so direct, final and without equivocation as the words used in the present charge, and certainly I am of the opinion that if Duff J., as he then was, considered the comments in Bigaouette as being contra to what he described in the case as “the imperative direction of subs. (5) of s. 4 of the Canada Evidence Act then the statement made by the learned trial judge in the present case is even more plainly a breach of the said subsection. Nor is this conclusion affected by the suggestion that the learned trial judge was only doing what he was entitled to do and what he should do, that is, to give to the jury the ruling that the whole burden of proof was on the Crown and that the accused need prove nothing. The learned trial judge had so instructed the jury in the first part of the charge which I have quoted above and had done so in an appropriate manner and in a manner well nigh traditional. With respect, however, he left that discharge of a proper duty and clearly infringed the provisions of the subsection of the Canada Evidence Act when he continued, saying, “and that leads me to embark upon an immediate digression. The accused has not testified. Of course, he could have done so. He is not obliged to do so.” Those words, as I have pointed out above, were said at the opening of the charge. They were not required as any ex-

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planation of the duty of the jury to only base their verdict upon sworn testimony and, in my view, they constituted “a failure to observe the imperative directions of subs. (5) of s. 4 of the Canada Evidence Act”.

The second question is if, as I believe, the learned trial judge was in breach of subs. (5) of s. 4 of the Canada Evidence Act, may the provisions of s. 592(1) (b) (iii) of the Criminal Code be applied thereto to result in the dismissal of the appeal on the ground that despite the error in law no substantial miscarriage of justice occurred. The majority of this Court in the McConnell and Beer case were of the opinion that such a course was available to this Court and to the Court of Appeal from whence the appeal had come. Since the majority of this Court had already determined that the comment in question in the McConnell and Beer case had not been a comment contra to the provisions of the Canada Evidence Act, I am of the opinion that their view in reference to the applicability of s. 592(1) (b) (iii) of the Code was obiter. However, for the present case, I am ready to accept that obiter as being the statement of the law. I must point out, however, that the only effect of such a view is that it is possible to use the provisions of the said subsection of the Code not that those provisions should be used in all cases. On the other hand, each case must be carefully examined in order to determine whether or not the Court should avail itself of the provisions set out in s. 592(1) (b) (iii) of the Code.

In Colpitts v. The Queen[17], I dealt with the test which must be applied to determine whether the subsection can be used and said:

Therefore, this Court must apply the test set out in the aforesaid cases and, to quote again from Brooks v. The King, [1927] S.C.R. 633,

The onus is upon the Crown to satisfy the Court that the jury, charged as it should have been,

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could not, as reasonable men, have done otherwise than find the appellant guilty.

Cartwright J., as he then was, said at p. 744:

A number of authorities which should guide the Court of Appeal in deciding whether, misdirection having been shewn, it can safely be affirmed that no substantial wrong or miscarriage of justice has occurred are quoted in the reasons of my brother Spence. Upon reading these it will be observed that, once error in law has been found to have occurred at the trial, the onus resting upon the Crown is to satisfy the Court that the verdict would necessarily have been the same if such error had not occurred.

And Ritchie J., at p. 745, agreed to an application of the test which had been established by the authorities to which I had referred. Let us, therefore, apply that test to the circumstances in the present case.

The slaying was committed in a room in which four persons were present: the deceased woman, the accused and the two witnesses, Latulippe and Laliberté. All four of those persons had consumed alcohol very heavily. The two persons who gave evidence at the trial were Latulippe and Laliberté. Their evidence certainly implicated the accused very strongly but the evidence of one of the witnesses contradicted the other and involved that other albeit in a rather minor fashion. The slaying having been committed, the three persons, the accused, Laliberté and Latulippe left the premises and continued their drinking. Now how could it be said that a jury properly instructed, that is, without it having been pointed out to them by the learned trial judge that the accused had not given evidence in his own defence, could reasonably come to no other conclusion than that the accused was guilty? Surely a jury could as reasonably have said “How can we convict upon the contradictory evidence of these two persons both of whom were intoxicated and both of whom certainly were interested in the outcome of the trial in which one of the three persons alone was accused of the crime whether or not those persons were, in law, accomplices?”. I note that as early as in Allen v.

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The King[18], Sir Charles Fitzpatrick C.J., in reasons expressly concurred in by Duff J., as he then was, said at pp. 339 and 340:

I cannot agree that the effect of the section is to do more than, as I said before, give the judges on an appeal a discretion which they may be trusted to exercise only where the illegal evidence or other irregularities are so trivial that it may safely be assumed that the jury was not influenced by it. If there is any doubt as to this the prisoner must get the benefit of that doubt propter favorem vitœ. To say that we are in this case charged with the duty of deciding the extent to which the improperly admitted evidence may have influenced some of the jurors would be to hold, as I have already said, that Parliament authorized us to deprive the accused in a capital case of the benefit of a trial by jury.

For these reasons, I am of the opinion that s. 592(1) (b) (iii) should not be used in the present case. I would therefore allow the appeal and direct a new trial.

Appeal dismissed, HALL and SPENCE JJ. dissenting.

Solicitor for the appellant: J.P. Ste. Marie, Montreal.

Solicitors for the respondent: Pateras, Marcerola & Galileo, Montreal.