Horsburgh v. R.

Horsburgh v. R.
Collection
Supreme Court Judgments
Date
1967-06-26
Report
[1967] SCR 746
Judges
Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett
On appeal from
Ontario
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Horsburgh v. R., [1967] S.C.R. 746
Date: 1967-06-26
Russell D. Horsburgh (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
1967: February 7, 8, 9; 1967: June 26.
Present: Cartwright, Fauteux, Martland, Judson, Ritchie, Hall and Spence JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Contributing to juvenile delinquency—Evidence—Accomplices—Corroboration—Character evidence—New evidence—Affidavit of trial witness contradicting previous testimony—Whether admissible on appeal—Juvenile Delinquents Act, R.S.C. 1952, c. 160, s. 33(1)(b).
The appellant, an ordained Minister, was convicted on five out of eight counts involving the commission of several acts of contributing to juvenile delinquency under s. 33(1)(b) of the Juvenile Delinquents Act, R.S.C. 1952, c. 160. The evidence which was adduced related, except as to the first count, to various acts by juveniles of sexual immorality, and the case alleged against the appellant was that he had encouraged these acts. The children were in their teens; they were witnesses for the Crown and gave sworn evidence at the trial. The appellant testified to deny the children’s testimony against him. Several character witnesses testified to his good character. His appeal from the convictions was dismissed, and on further appeal to the Court of Appeal, his convictions were affirmed. He was granted leave to appeal to this Court. Two affidavits were tendered before this Court, as well as before the Court of Appeal, sworn to by witnesses who had testified at the trial, both of which were to the effect that their evidence at trial was untrue.
Held (Fauteux, Judson and Ritchie JJ. dissenting): The appeal should be allowed and a new trial directed.
Per Cartwright, Martland, Hall and Spence JJ.: The charges in the present case were criminal charges, even though not laid under the Criminal Code. In criminal trial, it is the duty of the judge to warn the jury that, although they may convict upon the evidence of an accomplice, it is dangerous to do so unless that evidence is corroborated. The reasons of the trial judge make it clear that he did not consider it necessary, as a matter of law, to pay heed to that warning. What is necessary to become an accomplice is a participation in the crime involved, and not necessarily the actual commission of it. The facts in this case show that there had been such participation. All the material evidence tendered to establish that the appellant aided and abetted at the commission of delinquencies was given by persons who had knowingly and wilfully committed those very delinquencies or, as in the case of one of them, had been guilty of aiding and abetting. In the circumstances of this case, the witnesses were participes criminis and were accomplices. Each of the witnesses whose evidence is in question here did commit an offense under the Juvenile Delinquents Act. When they seek to place the responsibilities for their conduct upon the appellant, there is no reason why, in relation to the charge brought against him, he is not entitled to the same protection, in relation to the evidence of accomplices, as he would be entitled to receive in respect of any other criminal charge. The reasons for such protection are certainly as valid, in relation to accomplices who are children, as they are with respect to accomplices who are adults. There was an error in law in the failure by the trial judge to take account of his duty to assess the evidence of the participants in the sexual acts as being that of accomplices and not of independent witnesses.
It was not a valid ground for the refusal to hear the evidence of the two self-contradicting witnesses that the said witnesses had testified at the trial and had been subject to cross‑examination.
Per Spence J.: The view expressed by the trial judge was not only that the evidence of children, once sworn, must be received, but that it must be treated as that of a competent adult witness. This was a serious misdirection as the witnesses, despite the fact that it was properly determined that they were capable of being sworn, were nevertheless child witnesses and their testimony bore all the frailties of testimony of children. Added to this was the failure of the trial judge to give proper appreciation to the character evidence given in favour of the appellant. Per Fauteux, Judson and Ritchie JJ., dissenting: The essence of the case made against the appellant was not that certain children committed delinquencies, but that he did “an act or acts contributing” to children being or becoming juvenile delinquents or likely to make them juvenile delinquents. There was no error in law in the trial judge failing to mention, in his reasons for judgment, the danger of convicting on the uncorroborated evidence of the children, since the appellant was not charged with a sexual offence. Furthermore, the statement of the trial judge to the effect that the sworn evidence of a child witness may be received and treated as if it was the evidence of a competent adult witness, is to be taken as being confined to the competence of the child witness whose evidence was taken under oath, and is not to be construed as meaning that he ignored the special considerations which apply to the credibility of such witnesses.
Finally, the trial judge did not err in law in failing to mention the danger inherent in convicting on uncorroborated evidence of the children because their evidence was that of accomplices. The evidence of the children under 16 years of age was not the evidence of accomplices, because they were not participes criminis in the offence of contributing to the delinquencies of the children named in the charges. The offence of contributing to the delinquency of children as specified in s. 33(1) of the Juvenile Delinquents Act is not an offence which can be committed by children under 16 years of age, and therefore these children are not to be treated as accomplices. Some of the older witnesses were accomplices. However, although the trial judge made no mention of accomplices, the reasons which he assigned for his decision did not disclose any self-misdirection in this regard.
As to the affidavit evidence tendered before this Court and the Court of Appeal, it should be rejected.
Droit criminel—Contribuer à faire d’un enfant un jeune délinquant—Preuve—Complices—Corroboration—Preuve de caractère—Nouvelle preuve—Affidavit d’un témoin au procès contredisant son témoignage. antérieur—Est-ce recevable en appel—Loi sur les jeunes délinquants, S.R.C. 1952, c. 160, art. 33(1)(b).
L’appelant, un ministre du culte, a été trouvé coupable de cinq chefs d’accusation sur huit comportant la commission de plusieurs actes ayant contribué à faire d’un enfant un jeune délinquant sous l’art. 33(1)(b) de la Loi sur les jeunes délinquants, S.R.C. 1952, c. 160. La preuve qui a été produite se. rapportait, à l’exception de celle sur le premier chef, à plusieurs actes d’immoralité sexuelle commis par des adolescents, et ce qu’on a reproché à l’appelant c’est d’avoir encouragé ces actes. Les enfants étaient tous âgés de 13 à 20 ans; ils ont été des témoins de la Couronne et ont donné leur témoignage sous serment. L’appelant a témoigné et a nié le témoignage des enfants. Plusieurs témoins ont témoigné du bon caractère de l’appelant. Son appel à l’encontre des verdicts a été rejeté, et sur appel subséquent à la Cour d’Appel, les verdicts ont été confirmés. Il a obtenu la permission d’en appeler devant cette Cour où, ainsi que devant la Cour d’Appel, deux affidavits, assermentés par des témoins qui avaient témoigné au procès à l’effet que leur témoignage au procès n’était pas véridique, ont été présentés. Arrêt: L’appel doit être maintenu et un nouveau procès ordonné, les Juges Fauteux, Judson et Ritchie étant dissidents.
Les Juges Cartwright, Martland, Hall et Spence: Les accusations dans la présente cause étaient des accusations criminelles, malgré qu’elles n’aient pas été portées sous le Code Criminel. Dans un procès criminel, il est du devoir du juge d’avertir le jury que, quoiqu’il puisse rendre un verdict de culpabilité en se basant sur la preuve d’un complice, il est dangereux de le faire à moins que cette preuve ne soit corroborée. Les notes du juge au procès démontrent clairement qu’il n’a pas jugé nécessaire, en droit, de tenir compte de cet avertissement. Ce qui est nécessaire pour devenir un complice c’est d’avoir participé au crime en question, il n’est pas nécessaire d’avoir actuellement commis ce crime. Les faits dans la cause présente démontrent qu’il y a eu une telle participation. Toute la preuve matérielle, qui a été présentée pour établir que l’appelant avait aidé et avait engagé des enfants à commettre des délits, a été donnée par des personnes qui avaient sciemment et de propos délibéré commis ces mêmes délits ou, comme dans le cas de l’un d’eux, avaient été coupables d’avoir aidé et encouragé. Dans les circonstances de cette cause, les témoins étaient des participes criminis et étaient des complices. Chacun des témoins dont le témoignage est en question ici a commis une offense sous la Loi sur les Jeunes Délinquants. Lorsqu’ils cherchent à placer la responsabilité de leur conduite sur les épaules de l’appelant, il n’y a aucune raison pour que ce dernier n’ait pas le droit, en regard de l’accusation portée contre lui, à la même protection en regard du témoignage de complices, qu’il aurait droit de recevoir en regard de toute autre accusation criminelle. Les raisons pour une telle protection sont certainement aussi valides, en regard des complices qui sont des enfants, qu’elles le sont en regard des complices qui sont des adultes. Il y a eu une erreur de droit de la part du juge lorsqu’il n’a pas tenu compte de son devoir d’évaluer la preuve des participants aux délits sexuels comme étant celle de complices et non pas de témoins indépendants.
Le fait que les deux témoins en contradiction avec eux-mêmes ont témoigné au procès et ont été contre-interrogés n’est pas un motif valide pour refuser de prendre connaissance des deux affidavits.
Le Juge Spence: Le juge a exprimé l’opinion non seulement que le témoignage des enfants, une fois assermentés, doit être reçu, mais qu’il doit être traité comme étant celui de témoins adultes compétents. Cette directive constituait une erreur sérieuse parce que les témoins, en dépit du fait qu’il a été adjugé avec raison qu’ils pouvaient être assermentés, étaient néanmoins des jeunes témoins et leur témoignage comportait toutes les faiblesses du témoignage d’un enfant. A ceci il faut ajouter que le juge au procès n’a pas donné l’appréciation voulue à la preuve de caractère qui a été faite en faveur de l’appelant.
Les Juges Fauteux, Judson et Ritchie, dissidents: L’essence de l’accusation établie contre l’appelant n’était pas que certains enfants avaient commis des délits, mais que l’appelant avait posé «un acte ou des actes contribuant» à faire d’enfants des jeunes délinquants ou les portant vraisemblablement à le devenir. Le juge au procès n’a pas commis d’erreur en droit en ne mentionnant pas dans ses notes de jugement, le danger de rendre un verdict de culpabilité en se basant sur la preuve non corroborée d’enfants, puisque l’appelant n’a pas été accusé d’une offense sexuelle. De plus, la déclaration du juge à l’effet que la preuve assermentée des enfants peut être reçue et traitée comme si elle était la preuve d’un témoin adulte compétent, doit être prise comme étant limitée à la compétence de l’enfant dont le témoignage est pris sous serment, et ne doit pas être interprétée dans le sens que le juge aurait mis de côté les considérations spéciales qui s’appliquent à la crédibilité de tels témoins.
Finalement, le juge au procès n’a pas erré en droit en ne mentionnant pas le danger inhérent à un verdict de culpabilité basé sur la preuve non corroborée d’enfants sous le prétexte qu’ils étaient des complices. Le témoignage des enfants de moins de 16 ans n’était pas le témoignage de complices, puisqu’ils n’étaient pas des participes criminis dans l’offense d’avoir contribué aux délits commis par les enfants nommés dans les accusations. L’offense de contribuer à faire d’enfants des jeunes délinquants, telle que spécifiée à l’art. 33(1) de la Loi sur les jeunes délinquants n’est pas une offense qui peut être commise par des enfants âgés de moins de 16 ans, et conséquemment ces enfants ne peuvent pas être traités comme des complices. Quelquesuns des témoins plus âgés étaient des complices. Cependant, bien que le juge au procès ne mentionne pas des complices, le raisonnement que l’on trouve dans sa décision ne montre pas qu’il s’est donné une mauvaise directive à cet égard.
Quant à la preuve par affidavit présentée à cette Cour et à la Cour d’Appel, elle doit être rejetée.
APPEL d’un jugement de la Cour d’Appel de l’Ontario1, confirmant un verdict de culpabilité. Appel maintenu et nouveau procès ordonné.
APPEAL from a judgment of the Court of Appeal for Ontario[1], affirming a conviction. Appeal allowed and new trial directed.
C.L. Dubin, Q.C., and C.E. Perkins, Q.C., for the appellant.
Clay M. Powell, for the respondent.
The judgment of Cartwright, Martland and Hall JJ. was delivered by
MARTLAND J.:—This is an appeal from the judgment of the Court of Appeal for Ontario[2], which, by a majority of two to one, dismissed an appeal by the appellant from a judgment of Moorhouse J., who had dismissed the appellant’s appeal from his conviction by W.H. Fox, Esq., Q.C., a Juvenile Court Judge, on five out of eight charges brought against him under s. 33(1)(b) of the Juvenile Delinquents Act, R.S.C. 1952, c. 160.
Section 33(1) of that Act provides as follows:
33. (1) Any person, whether the parent or guardian of the child or not, who, knowingly or wilfully,
(a) aids, causes, abets or connives at the commission by a child of a delinquency, or
(b) does any act producing, promoting, or contributing to a child’s being or becoming a juvenile delinquent or likely to make any child a juvenile delinquent,
is liable on summary conviction before a Juvenile Court or a magistrate to a fine not exceeding five hundred dollars or to imprisonment for a period not exceeding two years or to both fine and imprisonment.
Although the charges were laid under para. (b) of this subsection, apart from the first one, they would, I think, more properly have been brought under para. (a). That paragraph makes it an offence to aid, cause, abet or connive at the commission by a child of a delinquency. “Juvenile delinquent” is defined in s. 2(h) so as to include a child “who is guilty of sexual immorality”. The evidence which was adduced, except as to the first charge, related to various acts by witnesses of the Crown of sexual immorality, and the case alleged against the appellant was that he had encouraged these acts.
Paragraph (b) makes it an offence to do an act producing, promoting or contributing to a child’s being or becoming a juvenile delinquent or likely to make a child a juvenile delinquent. The charges were framed to cover both alternatives, but the evidence, except as to the first charge, related to actual juvenile delinquency.
The facts are summarized by Laskin J.A., in his dissenting judgment in the Court below, as follows:
Each of the eight charges alleged that the accused, during certain specified periods, which comprehensively covered the time span between July 24, 1963 and June 29, 1964 did certain acts contributing to the juvenile delinquency of (1) Susanne Westfall; (2) Robert Miller; (3) Mary Doolittle; (4) Jon Whyte; (5) Judy Kivell; (6) Glen Eldridge; (7) Brenda Wolfe; and (8) Janice Janes. Each charge or count set out the acts by which the contribution to juvenile delinquency was allegedly effected. Count 1 specified three acts; count 2 specified five acts; count 3 specified one act; count 4 specified one act; count 5 specified three acts; count 6 specified two acts; count 7 specified two acts, and count 8 specified seven acts.
The accused was convicted on five counts, as follows: count 1, in respect of specified act three; count 2 in respect of specified acts one, three and four; count 5, in respect of specified acts one and two; count 6, in respect of specified act one; and count 8, in respect of specified acts six and seven. The convictions were registered in the following terms:
(1) Russell D. Horsburgh, at the City of Chatham, in the County of Kent, between January 1, 1964 and June 1, 1964 inclusive, knowingly or wilfully did unlawfully do an act or acts contributing to Susanne Westfall, a child, being or becoming a juvenile delinquent or likely to make the said child a juvenile delinquent, to wit: by, during the Easter school vacation, 1964, attempting to induce the said child to have a relationship with Terry Lord by placing the said boy’s arm around the said child and by telling the said child her boy friend would never know and that he, Russell D. Horsburgh wanted some action, contrary to section 33, subsection (1)(b) of the Juvenile Delinquents Act.
(2) Russell D. Horsburgh, at the City of Chatham, in the County of Kent, between January 1, 1964 and June 29, 1964 inclusive, knowingly or wilfully did unlawfully do an act or acts contributing to Robert Miller, a child, being or becoming a juvenile delinquent or likely to make the said child a juvenile delinquent, to wit: by, between March 13 and March 25, 1964 in the office of the said Russell D. Horsburgh, telling the said child that there was nothing wrong with the said child having intercourse; by, explaining to the said child how to have sexual intercourse without hurting the girl; by signs indicating to the said child to take the said girl to the apartment for sexual intercourse, contrary to section 33, subsection (1)(b) of the Juvenile Delinquents Act.
(5) Russell D. Horsburgh, at the City of Chatham, in the County of Kent, between December 1, 1963 and June 1, 1964 inclusive, knowingly or wilfully did unlawfully do an act or acts contributing to Judy Kivell, a child, being or becoming a juvenile delinquent or likely to make the said child a juvenile delinquent to wit: by, during the month of January or February, 1964, sending the said child to the apartment in the Park Street United Church Buildings, and sending Glen Eldridge there to have sexual intercourse with the said child; by asking the said child when she returned to his office, if she enjoyed herself, contrary to section 33, subsection (1)(b) of the Juvenile Delinquents Act.
(6) Russell D. Horsburgh, at the City of Chatham, in the County of Kent, between December 1, 1963 and June 1, 1964 inclusive, knowingly or wilfully did unlawfully do an act or acts contributing to Glen Eldridge, a child, being or becoming a juvenile delinquent or likely to make the said child a juvenile delinquent, to wit: by, during the month of January or February, 1964, telling the said child to have sexual intercourse with Judy Kivell in the apartment in the Park Street United Church Buildings and by asking the said child how did you make out, contrary to section 33, subsection (1)(b) of the Juvenile Delinquents Act.
(8) Russell D. Horsburgh, at the City of Chatham, in the County of Kent, between July 24, 1963 and June 1, 1964 inclusive, knowingly or wilfully, did unlawfully do an act or acts contributing to Janice Janes, a child, being or becoming a juvenile delinquent, to wit: by, sending the said child to the said apartment on March 31, 1964, to see Terry Lord and his friend from Toronto where sexual intercourse took place with Terry Lord; by, between July 24, 1963 and June 1, 1964, permitting the said child on several occasions to have sexual intercourse with Jack Best in the parlour and apartment of the said Park Street United Church Buildings, contrary to section 33, subsection (1)(b) of the Juvenile Delinquents Act.
Susanne Westfall was 14 years of age when the alleged offence against her was committed; Robert Miller was 15 years old at the material time; Judy Kivell was 14 years of age; Glen Eldridge was then 15 years of age; and Janice Janes was also 15 years of age when the alleged offence in her case was committed. Terry Lord mentioned in the conviction on count 1 did not give evidence. Susanne Westfall was the girl mentioned in the conviction on count 2 involving Robert Miller. Judy Kivell and Glen Eldridge are associated in the acts on which the convictions on counts 5 and 6 were made. Jack Best, who, in addition to Terry Lord, is associated in an act for which there was a conviction on count 8, was at the material time 19 years old, beyond juvenile age, and was a witness for the prosecution, as were Susanne Westfall, Robert Miller, Judy Kivell, Glen Eldridge and Janice Janes.
The accused is a married man, 45 years of age who has been an ordained minister since 1947, following the completion of his education at McMaster University where he earned a B.A. degree and Queen’s University where he earned a divinity degree. He came to a Chatham pastorate in 1961 after previous service in Creighton Mine, Sudbury, Hamilton and Waterloo. The offences of which he was convicted had as their locale the church in Chatham at which he served, and an apartment attached to the church which was not inhabited but was used as a collection and distribution centre for used clothing available to needy persons for the taking.
The accused on coming to Chatham expanded the existing social and recreational programme carried on at the church. With the approval of a responsible church committee, he organized a senior young people’s group, a Tuxis group for boys in their late teens, a Sigma-C group for boys in their early teens and, subsequently, a teen-town and youth anonymous programme. This last mentioned group was designed to attract to the church young persons who had no traditional attachment and to provide them with an opportunity to discuss personal problems on a confidential group basis. The result of this expanded programme was to keep the church buildings in constant use by a range of young people. The accused set aside, in addition, a counselling period from 4:30 to 6 p.m. for teenage persons and this was made known through church publications. There is evidence that many youngsters visited the accused in his office for general talk and that he made himself accessible to them, even lending them small amounts of money, apparently in line with a social service conception of his ministry.
The young people named in the charges brought against the accused admittedly engaged in delinquent conduct in the church premises. Neither the church nor the accused can be held responsible for this simply because they permitted access to the church unless they were, or should have been, aware of what was happening and allowed it to continue. There was evidence that the frequent dances held in the church were chaperoned, there was a janitor who serviced the premises, and the accused’s secretary was there from 10 a.m. to 5 p.m. or later. What is alleged against the accused are not acts of omission but of commission, and, as already indicated, of the twenty-four acts specified in the eight counts, nine were brought home to him under five counts. Various grounds of appeal were submitted on behalf of the appellant, but it is only necessary for me to deal with one of them; namely, that the learned trial judge failed to apply the rule of caution as to the danger of convicting on the uncorroborated evidence of accomplices.
The learned trial judge gave detailed reasons for his judgment. He did not consider the matter of the evidence of accomplices at all, but he did deal with the requirement as to the matter of corroboration of the evidence of a complainant in relation to a sexual offence. With respect to this matter he said:
The second observation I would like to make concerns the question of “corroboration” and the necessity for it in a case of this kind, having regard to the nature of the offences and the ages of the witnesses for the prosecution.
In the first place the accused is not charged with one of the sexual offences mentioned in the Criminal Code. Therefore, the possibility of false accusations of sexual crime does not exist in this case and there is no possibility of a conviction on the uncorroborated evidence of a possible victim, with respect to a sexual crime. The accused is simply charged with contributing to Juvenile Delinquency in connection with eight different counts. Because of the nature of the offences, therefore, I do not believe that corroboration is required.
He also dealt with the need for corroboration of the evidence of a child, who has been sworn as a witness. After discussing the provisions of s. 16 of the Canada Evidence Act, R.S.C. 1952, c. 59, he went on to say:
In other words, once the Judge has decided, after making due inquiry, that a child witness may be sworn, that child’s evidence may be received and treated as if it was the evidence of a competent adult witness. From my reading of the law, and, in particular, those cases which have been decided under section (16) (above) notably R. v. Antrobus 87 C.C.C. 18 and R. v. Sankey (1923) S.C.R. 436 such is the law with respect to the admissibility of the evidence of a child and, in particular, the necessity of corroboration of a child’s evidence—qua child.
It is clear from these passages that the learned trial judge approached the consideration of the evidence of the child witnesses on the basis that the matter of corroboration did not enter into the case at all.
It is now settled law that in a criminal trial, where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated.
The charges in the present case are criminal charges, even though not laid under the Criminal Code. The warn- ing required to be given to the jury is for the purpose of ensuring that, in their consideration of the evidence, the danger involved in convicting on the uncorroborated evidence of an accomplice should always be present in their minds. The reasons of the learned trial judge make it clear that he did not consider it necessary, as a matter of law, to pay heed to that warning in weighing the evidence. If the evidence against the accused did consist of the evidence of accomplices, then there was error in law.
The question then arises as to whether or not the various children, who were parties to the sexual acts of which evidence was given, are to be considered as accomplices.
Counsel for the respondent contended that they were not, and relied upon the judgment of the House of Lords in Davies v. Director of Public Prosecutions[3]. At page 400 the Lord Chancellor, Lord Simonds, said:
There is in the authorities no formal definition of the term “accomplice”: and your Lordships are forced to deduce a meaning for the word from the cases in which X, Y and Z have been held to be, or held liabie to be treated as, accomplices. On the cases it would appear that the following persons, if called as witnesses for the prosecution, have been treated as falling within the category:—
(1) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanors). This is surely the natural and primary meaning of the term “accomplice”. But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, been held to be accomplices for the purpose of the rule: viz.:
(2) Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny (Rex v. Jennings, (1912) 7 Cr. App. R. 242: Rex v. Dixon, (1925) 19 Cr. App. R. 36):
(3) When X has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted, of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident; in such cases the court has held that in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration. (Rex v. Farid, (1945) 30 Cr. App. R. 168).
A little later in his reasons he went on to say that he could see no reason for any further extension of the term “accomplice”.
In the Davies case the charge was murder, the victim having been stabbed by a knife. Davies, with other youths, including the witness Lawson, attacked, with their fists, another group, one of whom was the victim who was stabbed. In considering whether or not Lawson was an accomplice of Davies, the Lord Chancellor said:
Lawson, if he was to be an accomplice at all had to be an accomplice to the crime of murder. I can see no reason for any further extension of the term “accomplice”. In particular, I can see no reason why, if half a dozen boys fight another crowd, and one of them produces a knife and stabs one of the opponents to death, all the rest of his group should be treated as accomplices in the use of a knife and the infliction of mortal injury by that means, unless there is evidence that the rest intended or concerted or at least contemplated an attack with a knife by one of their number, as opposed to a common assault. If all that was designed or envisaged was in fact a common assault, and there was no evidence that Lawson, a party to that common assault, knew that any of his companions had a knife, then Lawson was not an accomplice in the crime consisting in its felonious use. It should be borne in mind in this connexion that all suggestion of a concerted felonious onslaught had, by consent at the instance of counsel for the defence himself, been expunged from the Crown’s case and from the issues put to the jury.
It will be seen that the issue considered was as to whether or not Lawson was “particeps criminis” in respect of the crime of murder.
It was submitted by counsel for the respondent that, to be particeps criminis, the witness in question would have to be guilty of the crime charged against the accused. On this basis, as none of the witnesses in question in this case could have been charged with the crime of which the appellant was charged under s. 33 of the Juvenile Delinquents Act, they could not be accomplices.
I do not agree that this result follows from the Davies case. Particeps criminis means one who shares or co-operates in a criminal offence. The passage cited from that case shows that the term includes an accessory after the fact, who certainly could not be convicted of the main offence. What is necessary to become an accomplice is a participation in the crime involved, and not necessarily the actual commission of it. Whether or not there has been such participation will depend upon the facts of the particular case.
The substance of the case made against the appellant was that he had aided and abetted at the commission of delinquencies. The delinquencies consisted of various acts of sexual intercourse. Sexual intercourse was not involved in the first charge, in relation to Susanne Westfall, but she is the girl mentioned in the second charge and she gave evidence of sexual intercourse with Robert Miller. Terry Lord, who is mentioned in the first charge, did not give evidence. Jack Best, who is mentioned in the last charge, and who did give evidence, was not a juvenile at the material time. In the result, each of the persons to whose delinquency the appellant was charged with contributing had been guilty of an offence under the Juvenile Delinquents Act, i.e., sexual immorality.
In addition, each of such persons, other than Janice Janes, mentioned in the last count, had aided and abetted another juvenile in the commission of an act of juvenile delinquency, an act which is made an offence by s. 33(1)(a). It appeared to be assumed in argument that only adults could be charged under that section, but, apart from the marginal note, which forms no part of the Act (Interpretation Act, R.S.C. 1952, c. 158, s. 14(2)), this section does not so provide.
In any event, the situation in this case is that all the material evidence tendered to establish that the appellant aided and abetted at the commission of delinquencies was given by persons who had knowingly and wilfully committed those very delinquencies, or, as in the case of Best, had been guilty of aiding and abetting. In the circumstances of this case, in my opinion they were particeps criminis and were accomplices. In saying this I do not contend that every child who becomes a juvenile delinquent is necessarily an accomplice of a person who contributes to such a delinquency. I say only that such a child may, depending upon the circumstances of the case, be an accomplice.
I recognize that the charges against the appellant were laid under para. (b) and not para. (a) of s. 33(1), but I repeat that the case, as presented, other than the first charge, related to an offence under para. (a). I agree, on this point, with what was said by Laskin J.A.:
Crown counsel contended that the accused would be guilty of the offences charged by reason merely of giving the encouragement to the acts committed by the juveniles, regardless of whether they were committed or not. I do not disagree, but that is not how the case against him was proved; and it is the nature of the evidence given against the accused that has to be regarded in determining whether accomplice evidence is being adduced.
In the reasons of Evans J.A., in the Court below, the following proposition is stated:
It is my view that the children under sixteen who testified cannot be considered as accomplices nor as particeps criminis. The Juvenile Delin- quents Act was specifically designed for the protection of such children and to hold that they are accomplices in the very act which contributed to their delinquency would be contrary to the intention expressed in the Act. They did not commit a crime by becoming involved in an action which forms the basis of a prosecution against the appellant.
I am not in agreement with this reasoning. The fact is that each of the witnesses whose evidence is in question here did commit an offence under the Juvenile Delinquents Act. Had proceedings been taken against them, they would have enjoyed the benefits afforded by ss. 2 and 38 in being treated not as criminals, but as misdirected children. But when they seek to place the responsibility for their conduct upon the appellant, I see no reason why, in relation to the charge brought against him, he is not entitled to the same protection, in relation to the evidence of accomplices, as he would be entitled to receive in respect of any other criminal charge and the reasons for such protection are certainly as valid, in relation to accomplices who are children, as they are with respect to accomplices who are adults.
In my opinion, there was an error in law in the failure by the learned trial judge, when weighing the evidence, to take account of his duty to assess the evidence of the participants in the sexual acts as being that of accomplices and not of independent witnesses.
This conclusion makes it unnecessary to deal with the ground of appeal based upon the refusal by the Court of Appeal to consider the self-contradicting evidence of two witnesses who testified at the trial. I would, however, like to express my view that the fact that the witnesses in question had testified at the trial on the issues on which further examination was sought, and had been subject at trial to cross-examination, is not a valid ground for the refusal to hear such evidence.
In my opinion the appeal should be allowed and a new trial directed.
The judgment of Fauteux, Judson and Ritchie JJ. was delivered by
RITCHIE J. (dissenting):—I have had the advantage of reading the reasons for judgment prepared by my brother Martland in which he recites much of the factual background giving rise to this appeal. I shall endeavour not to duplicate this recital excepting in so far as it appears to me to be essential to an understanding of my views.
Although the accused was a man of 45 years of age and an ordained minister of the United Church of Canada, he was tried in the Juvenile and Family Court of the County of Kent on eight charges involving the alleged commission of 24 separate acts of contributing to children becoming juvenile delinquents or which were likely to make them juvenile delinquents contrary to s. 33(1)(b) of the Juvenile Delinquents Act. It was, in my view, unfortunate that all these charges were heard together but there was no motion for severance and no objection appears to have been raised to this procedure on behalf of the accused although in the result, in my opinion, its adoption made a difficult case more difficult for the judge to try.
Judge Fox, who presided at the trial, is described in the reasons for judgment of the majority of the Court of Appeal as “a learned and experienced Juvenile Court Judge” and I do not question this assessment. He appears to have been able to deal with each charge independently of the others and the fact that he only found 9 of the 24 alleged acts to have been committed and consequently dismissed 3 of the charges, is the best evidence of his approach to the matter.
The trial, which involved the taking of more than 1,600 pages of evidence, was characterized by a direct conflict of testimony between the Crown witnesses, many of whom were admittedly juvenile delinquents, and the evidence for the defence which consisted of a complete denial of all the charges by a minister of the Church whose integrity was vouched for by a number of respectable citizens.
This was preeminently a case which turned on the trial judge’s assessment of the credibility of the witnesses and Judge Fox was careful to instruct himself in this regard in the following terms:
Counsel for both the Crown and the defence referred to that issue in their arguments as the most important issue in the whole case and with that view I am in entire agreement for on that issue, solely, I think depends the accused’s guilt or innocence.
As the Honourable Mr. Justice Estey of the Supreme Court of Canada pointed out in the case of Rex v. White, 1947 S.C.R. 268 at 272:
‘the issue of credibility is one of fact and cannot be determined by following a set of rules which it has been suggested have the force of law.’ In his judgment in that case Mr. Justice Estey quoted as follows from a judgment of Mr. Justice J. Anglin (later Chief Justice) in the case of Raymond v. Township of Bosanquet (1919) 59 S.C.R. 452:
‘...by that (in speaking of credibility) I understand not merely the appreciation of the witnesses’ desire to be truthful but also of their opportunities of knowledge and powers of observation, judgment and memory—in a word, the trustworthiness of their testimony, which may have depended very largely on their demeanour in the witness box and their manner in giving evidence...’
‘Eminent Judges’ Mr. Justice Estey says, ‘have from time to time indicated certain guides that have been of the greatest assistance but so far as I have been able to find there has never been an effort made to indicate all the possible factors that might enter into the determination. It is a matter in which so many human