R. v. Thatcher

R. v. Thatcher
Collection
Supreme Court Judgments
Date
1987-05-14
Report
[1987] 1 SCR 652
Case number
19733
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Saskatchewan
Subjects
Criminal law
Notes
SCC Case Information: 19733
Decision Content
R. v. Thatcher, [1987] 1 S.C.R. 652
W. Colin Thatcher Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. thatcher
File No.: 19733.
1986: December 9; 1987: May 14.
Present: Dickson C.J. and Beetz, Estey, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for saskatchewan
Criminal law ‑‑ Charge to jury ‑‑ Murder ‑‑ Aiding or abetting ‑‑ Crown's theory that accused could be found guilty as principal or alternatively as aider or abettor ‑‑ Whether evidence to justify putting to the jury the Crown's alternative theory ‑‑ Whether trial judge failed to apply the legal principles of s. 21 of the Criminal Code to the evidence of the case.
Criminal law ‑‑ Charge to jury ‑‑ Burden of proof ‑‑ Murder ‑‑ Whether trial judge erred in directing the jury to weigh the evidence of the accused against the evidence of other witnesses and to choose which they accepted, thereby reducing the burden of proof.
Criminal law ‑‑ Charge to jury ‑‑ Fairness ‑‑ Murder ‑‑ Whether trial judge adequately summarized the evidence or the theory of the defence.
Criminal law ‑‑ Charge to jury ‑‑ Unanimity ‑‑ Murder ‑‑ Trial judge instructing jurors that they could find the accused guilty either as principal or as aider or abettor ‑‑ Whether trial judge failed to instruct the jurors that they must be unanimous in the way in which the offence was committed ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 21 .
Appellant was arrested and charged with causing the death of his ex‑wife. Following their separation in 1979 after seventeen years of marriage, the relation between the estranged spouses became increasingly bitter and acrimonious as they fought a long, hotly contested series of custody, access and matrimonial property battles. On January 21, 1983, appellant's ex‑wife was ferociously beaten and then shot to death. At trial, the Crown led direct and circumstantial evidence to prove that the appellant had personally murdered his ex‑wife or, alternatively, that he aided or abetted the killer and was therefore guilty as a party to the offence pursuant to s. 21 of the Criminal Code . The bulk of the evidence tendered by the Crown was consistent with either theory.
In defence, appellant adduced alibi evidence and denied any involvement in the killing. Several witnesses corroborated appellant's whereabouts at the time of the crime.
In his charge, the trial judge instructed the jurors that the appellant could be found guilty of murder if they were satisfied beyond a reasonable doubt that he was the principal offender or a party to the offence under s. 21 of the Code. He explained briefly the position of the defence and spent considerable time summarizing the Crown's evidence. The jury returned a verdict of guilty of first degree murder contrary to s. 218 of the Code. The majority of the Court of Appeal dismissed his appeal.
On appeal to this Court, appellant contended that: (1) there was no evidentiary basis for a direction pursuant to s. 21 of the Code; (2) the trial judge failed to direct the jury on the application of the legal principles of parties to an offence to the evidence of the case; (3) the trial judge erred in directing the jury to weigh the appellant's evidence against the evidence of other witnesses and to choose which they accepted, thereby reducing the burden of proof; (4) the trial judge failed to summarize fairly and adequately the evidence and the theory of the defence; and (5) the trial judge failed to instruct the jury that a verdict of guilty must be unanimous in relation to one or other of the alternative means of committing the offence of murder.
Held: The appeal should be dismissed.
There was an evidentiary foundation to justify putting to the jury the Crown's alternative theory that appellant was a party to the offence under s. 21 , rather than a principal. Where an accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, it is also appropriate for the trial judge to direct the jury with respect to the provisions of s. 21 of the Code, even though the identity of the other participant or participants is unknown and even though the precise part played by each participant may be uncertain. Here, there was very strong evidence connecting appellant with the crime. There was also some evidence which, if believed, indicated that he did not commit the crime personally. The facts were for the jury, and the trial judge was correct not to preclude the jury from considering all the alternatives.
The trial judge adequately instructed the jury on the application of the legal principles of s. 21 to the evidence in the case. He accurately stated the law as to s. 21(1) and went through the evidence of each witness in turn. The fact that he did not carve his jury charge into discrete sections in which he reviewed the evidence consistent with appellant having personally committed the murder, appellant having committed the murder by means of s. 21(1), and, finally, appellant not having committed the murder at all, was not wrong. Much of the Crown's evidence was consistent with either Crown theory, and much of the defence evidence was consistent with either appellant's innocence or his guilt under s. 21(1).
The contention that the trial judge erred in putting the jurors to a choice between accepting the evidence of some witnesses or accepting appellant's evidence, thereby reducing the burden of proof, must fail. Although one passage of the trial judge's charge, if it stood alone, would be wrong in law, the charge, read as a whole, made it clear that the jury was not obliged to take a binary view of the evidence (accept or reject it) but had to give effect to reasonable doubt.
The trial judge adequately summarized the evidence or the theory of the defence. A trial judge is not required in his charge to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence. Here, the gist of the appellant's complaint is that the trial judge revealed to the jurors his own perception of the accused's guilt, through undue emphasis on the Crown's evidence and inadequate summary of the defence. The defence evidence was simple and the Crown's case was complex, relying on circumstantial evidence from a large number of witnesses. It is simply inappropriate to try to measure the fairness of the charge by reference to quantity.
Per Dickson C.J. and Beetz, Estey, Wilson and Le Dain JJ.: The trial judge did not err in failing to instruct the jurors that they must be unanimous in the way in which the murder was committed. Section 21(1) of the Criminal Code is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant. It provides that either mode of committing an offence is equally culpable and, indeed, that whether a person personally commits or only aids and abets, he is guilty of that offence‑‑in this case, murder‑‑and not some separate distinct offence. There is no need for the Crown to specify in the charge the nature of an accused's participation in the offence. Where there is evidence before a jury that points to an accused either committing a crime personally or, alternatively, aiding and abetting another to commit the offence, provided the jury is satisfied beyond a reasonable doubt that the accused did one or the other, it is a matter of indifference which alternative actually occurred. It follows that s. 21 precludes a requirement of jury unanimity as to the particular nature of the accused's participation in the offence.
Per Lamer J.: The Crown presented two factually inconsistent theories: that the appellant actually killed the deceased or that he aided and abetted the killer. The overwhelming mass of the evidence against the appellant, however, was consistent with both theories and pointed only to his participation in the murder. The jury could not have been convinced beyond a reasonable doubt of one theory to the exclusion of the other, but must have been convinced beyond a reasonable doubt that the appellant participated in the murder, either as principal or aider and abettor. Since s. 21(1) of the Criminal Code makes the distinction between participation as a principal and participation as aider and abettor legally irrelevant, it was not necessary for the jury to decide on the form of his participation and the jury was correct in convicting. But s. 21 does not always preclude a requirement of jury unanimity as to the particular nature of the accused's participation in the offence. Depending on the nature of the evidence presented by the Crown, the jury unanimity issue may arise in any case where the Crown alleges factually inconsistent theories, even if those theories relate to the particular nature of the accused's participation in the offence. If the Crown presents evidence which tends to inculpate the accused under one theory and exculpate him under the other, then the trial judge must instruct the jury that if they wish to rely on such evidence, then they must be unanimous as to the theory they adopt. Otherwise, the jury would be adding against the accused the inculpatory elements of evidence which cannot stand together because they are inconsistent.
Per La Forest J.: Although alternative theories of culpability were advanced by the Crown, there were ample grounds for the jury to find appellant guilty beyond a reasonable doubt while remaining unsure whether he had committed the murder himself or through another person. But there may be cases where the interrelationship between competing Crown theories and the evidence adduced in relation thereto will not justify a verdict of guilt. In each case, therefore, it will be for the trial judge, having regard to the nature of the offence, the theories of the parties, and the totality of the evidence, to realistically assess the possibility that the evidence will be used improperly, and to direct the jury accordingly. The present, however, is not such a case.
Section 21 of the Criminal Code is merely one example of a situation where the Crown is relying on alternative theories of culpability to found an accused's guilt. The fact that s. 21 makes the particular nature of the accused's involvement in an offence legally irrelevant does not in and of itself justify conviction on the basis of mutually exclusive or alternative theories of culpability.
Cases Cited
Considered: R. v. Harder, [1956] S.C.R. 489; Chow Bew v. The Queen, [1956] S.C.R. 124; R. v. Brown (1984), 79 Cr. App. R. 115; R. v. Sparrow (1979), 51 C.C.C. (2d) 443; referred to: R. v. Clayton‑Wright (1948), 33 Cr. App. R. 22; Nadeau v. The Queen, [1984] 2 S.C.R. 570; R. v. Folkes and Ludds (1832), 1 Mood. 354, 168 E.R. 1301; R. v. Swindall and Osborne (1846), 2 Car. & K. 230, 175 E.R. 95; R. v. Bouvier (1984), 11 C.C.C. (3d) 257; R. v. Tuckey (1985), 46 C.R. (3d) 97; R. v. Isaac, [1984] 1 S.C.R. 74; R. v. Farrant, [1983] 1 S.C.R. 124; R. v. Govedarov, Popovic and Askov (1974), 16 C.C.C. (2d) 238; R. v. Smith (1876), 38 U.C.Q.B. 218.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 21, 205(5)(a), 212(a)(i), 214(1) [am. 1973‑74, c. 38, s. 2; 1974‑75‑76, c. 105, s. 4], (2) [am. R.S.C. 1970, c. C‑35, s. 4(1)(a); 1973‑74, c. 38, ss. 2, 10, 11; 1974‑75‑76, c. 105, s. 4], (3) [am. 1973‑74, c. 38, s. 2; 1974‑75‑76, c. 105, s. 4], 218(1) [am. 1973‑74, c. 38, s. 3(1); 1974‑75‑76, c. 105, s. 5], 421, 423 [am. 1974‑75‑76, c. 93, s. 36; 1980‑81‑82‑83, c. 125, s. 23], 516(1)(f), 613(1)(b)(iii), 618(1)(a) [am. 1974‑75‑76, c. 105, s. 18].
Authors Cited
Archbold, John Frederick. Archbold's Pleading, Evidence & Practice in Criminal Cases, 33rd ed. By T. R. Fitzwalter Butler and Marston Garsia. London: Sweet & Maxwell Ltd., 1954.
East, Edward Hyde. Pleas of the Crown, vol. 1. London: A. Strahan, King's Printer, 1803.
Gelowitz, Mark A. "The Thatcher Appeal: A Question of Unanimity" (1986), 49 C.R. (3d) 129.
MacKinnon, Peter. "Jury Unanimity: A Reply to Gelowitz and Stuart" (1986), 51 C.R. (3d) 134.
Russel, Sir William Oldnall. Russell on Crime, 10th ed. By J. W. Cecil Turner. London: Stevens & Sons Ltd., 1950.
Taschereau, Henri Elzéar. The Criminal Code of the Dominion of Canada, 3rd ed. Toronto: Carswells, 1893.
Williams, Glanville. "Alternative Elements and Included Offences," [1984] C.L.J. 290.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1986), 46 Sask. R. 241, 24 C.C.C. (3d) 449, [1986] 2 W.W.R. 97, dismissing the accused's appeal from his conviction on a charge of first degree murder. Appeal dismissed.
Gerald N. Allbright, Q.C., and Mark Brayford, for the appellant.
Serge Kujawa, Q.C., and D. Murray Brown, for the respondent.
The judgment of Dickson C.J. and Beetz, Estey, Wilson and Le Dain JJ. was delivered by
1 The Chief Justice‑‑On May 7, 1984, Colin Thatcher was arrested and charged with causing the death of his ex‑wife, JoAnn Kay Wilson. After a fourteen‑day trial before judge and jury, he was convicted of first degree murder and sentenced to life imprisonment without eligibility for parole for twenty‑five years. An appeal to the Saskatchewan Court of Appeal was dismissed (Vancise J.A. dissenting) (1986), 46 Sask. R. 241, 24 C.C.C. (3d) 449, [1986] 2 W.W.R. 97. Colin Thatcher now appears before this Court requesting that the jury's guilty verdict be set aside.
2 The position of the Crown throughout the trial was that Mr. Thatcher had murdered Mrs. Wilson or alternatively that he caused someone else to do so and was therefore guilty as a party to the offence pursuant to s. 21 of the Criminal Code . Mr. Gerald N. Allbright, counsel for Mr. Thatcher, advances a number of grounds of appeal in his factum: (i) that there existed no evidentiary basis for a direction pursuant to s. 21 of the Code; (ii) that the trial judge erred in failing to direct the jury on the application of the legal principles of parties to an offence to the evidence of the case; (iii) that the trial judge failed to summarize fairly and adequately the evidence and the theory of the defence; (iv) that the trial judge erred in directing the jury to weigh the evidence of Mr. Thatcher against the evidence of other witnesses and to choose which they accepted, thereby reducing the burden of proof; and (v) that the Saskatchewan Court of Appeal erred in ruling that the curative provision found in s. 613(1)(b)(iii) of the Code could be resorted to in the circumstances of the case. These were all grounds in respect of which there was dissent in the Court of Appeal of Saskatchewan, thereby giving rise to an appeal to this Court as of right, pursuant to s. 618(1)(a) of the Code.
3 Another ground of appeal, in my view of more substance than those just described, was also argued by counsel for Mr. Thatcher. It was not the subject of a dissent in the Court of Appeal and was unanimously dismissed by that Court. Leave to argue this ground was sought from this Court, and was granted. Counsel contended that the trial judge erred in failing to instruct the jury that a verdict of guilty must be unanimous in relation to one or other of the alternative means of committing the offence of murder. The effect of the argument, in the circumstances of this case, was that in order to find Mr. Thatcher guilty of murder, the jury had to be unanimous that he intentionally killed his former wife or, alternatively, that he aided or abetted another person or persons in her killing; it was simply not sufficient that some members of the jury would hold to one theory and other members would hold to the other theory. That, as I see it, is the principal issue in this appeal.
I
The Facts
(i) Introductory
4 Having met as students at the University of Iowa, Colin Thatcher and his former wife JoAnn were married on August 12, 1962. After their marriage, they returned to Saskatchewan. They took up residence in Moose Jaw. Mr. Thatcher, the son of a one‑time member of Parliament and Premier of Saskatchewan, developed over the years an active and successful career as rancher, farmer and politician, serving for a time as Minister of Energy and Mines in a Progressive Conservative Government of Saskatchewan. Three children, Greg, Regan and Stephanie, were born of the marriage. Thatcher admitted to infidelity during the course of the marriage. The couple separated in August 1979. JoAnn, taking the two youngest children with her, left Moose Jaw with Mr. Thatcher's best friend, Ron Graham. Relations between the estranged spouses became increasingly bitter and acrimonious as they fought a long, hotly contested series of custody, access and matrimonial property battles. Colin Thatcher became obsessed. At one juncture he spirited Regan out of the country, and was found in contempt and ordered to pay a substantial fine. JoAnn's matrimonial property entitlement was initially held to amount to $820,000 but the judgment was immediately appealed. In 1980, the Thatchers were divorced. In January 1981, JoAnn married Mr. Tony Wilson and moved into a house located across the street from the Legislative Buildings in Regina.
(ii) The Spring of 1981
5 On the evening of Sunday, May 17, 1981 JoAnn Wilson was shot and wounded while in the kitchen of her home. A bullet fired from a high‑powered rifle passed through a triple glaze glass window and struck her in the shoulder. She was hospitalized for about three weeks. The evidence was that JoAnn Wilson was terrified by this attempt on her life. After the shooting, she gave up her right to custody of Regan and, a year later, agreed to accept approximately one half of the original court award, spread over five years. No one was charged with the May 17, 1981
incident.
(iii) January 21, 1983
6 At about 6 o'clock in the evening of January 21, 1983, JoAnn Wilson came home, drove into the garage of her home and was ferociously beaten and then shot to death. Twenty‑seven wounds were inflicted on her head, neck, hands and lower legs. The injuries included a broken arm, a fracture of the wrist and a severed little left finger. A single bullet entered her skull causing death.
7 Mr. Craig Dotson testified as to the finding of the body. He stated that he left work at the Legislative Buildings shortly before 6:00 p.m. on January 21, 1983, and was walking home when he noted a green car with a female driver turn into the garage at the Wilson residence. He continued walking for about a block. He heard loud shrill screams behind him. He turned back to investigate. He heard a single loud sharp noise and then silence. As he approached a lane near the Wilson garage he saw a man emerge from the garage. He did not pay any particular attention. It was dark. He was 30 to 40 feet from the individual. He walked a little further and saw a body in a pool of blood on the floor of the garage.
8 Mr. Dotson told the police he thought the man he momentarily observed had a beard, was about thirty years old, five foot nine to five foot eleven in height, and of medium build. A composite sketch prepared by the police with Mr. Dotson's aid did not fit Colin Thatcher, whom Mr. Dotson knew as a member of the Saskatchewan Legislative Assembly.
II
The Pre‑trial Proceedings
9 As stated, Mr. Thatcher was arrested on May 7, 1984 and was charged that he did unlawfully cause the death of JoAnn Wilson contrary to s. 218 of the Criminal Code . Section 218(1) of the Code provides:
218. (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
Sections 205(5)(a) and 212(a)(i) of the Code define culpable homicide and murder, respectively. Section 205(5)(a) states:
205. ...
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act.
Section 212(a)(i) provides:
212. Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death
Section 214 classifies murder into two types:
214. (1) Murder is first degree murder or second degree murder.
(2) Murder is first degree murder when it is planned and deliberate.
(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other's causing or assisting in causing the death of anyone or counselling or procuring another person to do any act causing or assisting in causing that death.
10 A preliminary inquiry was held in Regina, Saskatchewan, from the 25th to the 28th of June, 1984, following which Mr. Thatcher was committed to stand trial as charged. An indictment was ultimately preferred in the Court of Queen's Bench for the province of Saskatchewan. In August 1984, an application was taken to the Court of Queen's Bench requesting a change of venue and the Court directed that the trial be held at the City of Saskatoon.
11 In September 1984, prior to the commencement of trial, defence counsel launched a motion to the trial judge seeking an order directing the Crown to furnish particulars to the accused "to further describe the means by which the accused is alleged to have caused the death of JoAnn Kay Wilson". This order was sought pursuant to s. 516(1)(f) of the Code. The defence also sought an order "directing disclosure by the prosecutor of all intercepted private communications to which the accused is in any way a party, or which relate in any way to the telephone or telephones of any residence or other buildings used or frequented by the accused, or which relate directly or indirectly to the charge facing the accused." The judge, dismissing the first application (reported at (1984), 42 C.R. (3d) 259), relied upon the judgment of Martin J.A. in R. v. Govedarov, Popovic and Askov (1974), 16 C.C.C. (2d) 238 (Ont. C.A.), and adopted the following passages from that judgment, at pp. 269‑70, as a correct statement of the law:
The indictment had been preceded by a preliminary hearing lasting several days. Clearly, the purpose of the application for particulars was not to require the prosecution to provide the accused with additional details with respect to matters referred to in the indictment in order that the accused might be more fully informed of the act or omission charged against them but was to restrict the prosecution to reliance on a part only of the definition of murder contained in the Criminal Code .
He concluded at p. 265:
From the foregoing authorities I am satisfied that the accused is not entitled to an order for the particulars he seeks. If there is evidence upon which a properly instructed jury could find that the accused committed the offence or that he was a party to the commission of an offence by a person or persons unknown, it must be left to the jury to make either of such findings and their right to do so may not be restricted by an order for particulars. The application for particulars is accordingly dismissed.
The trial judge, on the second application, for disclosure of intercepted private communications, granted such disclosure in part.
III
The Case for the Crown
12 At trial, the case for the Crown rested upon an evidential base of both direct and circumstantial evidence, which I will now seek to summarize:
(i) The Apparent Surveillance Prior to the Killing
13 Margaret Johannsson testified that she observed a car parked almost directly opposite the Wilson garage on the day before the killing. The motor was not running. The lights were out. A male individual was seated behind the wheel. The car was blue in colour and had what appeared to be a government safety sticker on the back bumper.
14 Joan Hasz testified that she observed a blue car parked opposite the house in which she was employed (a block west of the Wilson residence) on the three afternoons preceding the killing. The car was placed so that it could command an unobstructed view of the Wilson garage. It was occupied by a single male. The motor was not running. This upset Mrs. Hasz and she informed her employer, Mr. Adams, who watched the car for fifteen minutes. As Mrs. Hasz left for home she decided to look at the license but could only read the numbers as the letters were covered with mud. She memorized the numbers 292 and repeated them as she drove home. When she arrived, she wrote them down. The occupant of the vehicle was described as a relatively young male of medium build with a beard, wearing a toque and what appeared to be rubber or surgical gloves. A police composite of the person Mrs. Hasz and Mr. Adams described did not fit Mr. Thatcher. One of the admissions of fact made on behalf of the accused was this: a 1980 Olds Delta 88 automobile bearing Saskatchewan license plate KDW 292 and owned by the Government of Saskatchewan was on January 10, 1983 checked out from the Central Vehicle Agency, Regina, to W. Colin Thatcher and remained checked out to him until it was picked up by the Regina City Police on January 27, 1983.
15 The witness Charles Guillaum testified that, at a much earlier date, on the appellant's instructions he returned a government car to the government garage. Under the front seat of that car he found a holster for a handgun which he turned over to the Regina City Police.
(ii) The Credit Card
16 During their investigation immediately following the killing the police found a Shell Oil credit card receipt lying on top of the snow some eight feet from the southeast door of the garage. The receipt bore what appeared to be the signature of Colin Thatcher. The owner of the service station confirmed the purchase by Mr. Thatcher of gasoline from J. & M. Shell Service in Caron, Saskatchewan on January 18, 1983.
(iii) The Gun and the Bullet
17 According to expert police testimony, JoAnn Wilson was probably struck in the head with a .38 Special Plus P, aluminum‑jacketed, 95 grain bullet manufactured by Winchester. The bullet was probably fired from a .38 Special or .357 Magnum Ruger revolver. The murder weapon was never found. The proprietor of a gun shop in Palm Springs, California, Ronald Williams, testified that on January 29, 1982 he sold Colin Thatcher a .357 calibre Ruger revolver. Thatcher picked up the gun along with a holster and ammunition on February 20, 1982. The ammunition consisted of two boxes of Winchester western .38 calibre Special Plus P silver tip hollow point shells and two bags of reloaded ammunition. The Winchester ammunition had a bullet with an aluminum jacket and a lead core. The witness also identified the holster found by the witness, Guillaum, as being consistent with the holster he sold to Colin Thatcher.
(iv) The Evidence of Lynn Mendell
18 The Crown also called Lynn Mendell, of Palm Springs, California, a former girlfriend of Colin Thatcher. Ms. Mendell described the bitterness Thatcher constantly expressed about JoAnn Wilson, and how he maintained many times that he wanted to kill her or arrange with someone to do it for him. She testified that this was on his mind all the time. According to Ms. Mendell, Thatcher told her he had met with someone in Saskatchewan whom he wanted to hire to kill JoAnn Wilson. He eventually told her the plan fell through but that he would have to go about it one way or another. These conversations took place in late 1980 and early 1981.
19 Lynn Mendell also told the Court that in May of 1981 Thatcher phoned and told her his ex‑wife had been shot and wounded. She testified that when he came down to Palm Springs a few days later, he told her someone had rented a car for him; that he, Thatcher, wore a disguise; and that he had staked out an area that was visually accessible but, because he did not gauge the thickness of the glass, the bullet deflected and struck JoAnn Wilson on the shoulder. According to Ms. Mendell, he told her:
Gee, I didn't gauge the thickness of the glass so the bullet obviously deflected because I only got her in the shoulder.
She also stated that Thatcher told her he left Regina and ran into roadblocks; that he went out into the fields where he got rid of the gun, the wig, and the overalls and then made his way back to Moose Jaw. According to Ms. Mendell, the only thing that saved him was the fact that the police did not go to his home to see if he were there.
20 Lynn Mendell also testified she knew Thatcher had a handgun in Palm Springs. She saw him pack that gun into a Barbie Doll shower box with newspaper, and place the box in his suitcase prior to his leaving for Canada. A box matching that description, with a label which showed it had been purchased in Palm Springs, and containing old copies of the Los Angeles Times, was found by Regina City police in a small cupboard adjoining the master bedroom of Thatcher's home in Moose Jaw.
21 On the day of the killing, Ms. Mendell said she received two calls from Thatcher, one early and another later in the evening. During the first call Colin Thatcher told her:
Well, I'm going out now. This might be the night, stick around.
During the later call he said:
Oh, my God, I've just been called...Apparently JoAnn has been shot in her home and has been killed.
Thatcher, according to Ms. Mendell, came to Palm Springs a few days after the fatal shooting. She said to him:
Well, you really did it, didn't you.
She said he scowled, nodded, pointed to the walls, and told her not to talk there. Later, when they were outside the condominium, he was alleged to have said:
I have to admit it is a strange feeling to have blown your wife away.
When press reports of the shooting and beating appeared in the Desert Sun he allegedly said:
I don't know why they said she was beaten. I didn't beat her.
22 Ms. Mendell acknowledged that she did not contact the authorities immediately after these incidents.
(v) The Evidence of Gary Anderson
23 Gary Anderson testified under an agreement of immunity from prosecution. Anderson is a farmer from the Caron district and a rural neighbour of Colin Thatcher. He testified he had met Thatcher in the fall of 1980 and Thatcher had asked him if he was interested in killing JoAnn Wilson for a fee of $50,000 or, if not, whether he could find someone to do it for him. Anderson stated he knew another person named Charlie Wilde who might be interested. Wilde suggested a third person, Cody Crutcher, who would be willing to take on the job. Anderson stated that Thatcher gave him $15,000 to pass on to Crutcher, and that Anderson paid some $14,500 to Crutcher, together with a picture of JoAnn Wilson and a set of her car keys. Nothing came of this and Anderson then arranged for a meeting with Charlie Wilde at a farm north of Caron, Saskatchewan in the spring of 1981. At that meeting Charlie Wilde told Thatcher he would do the job himself while visiting the United States. Before doing anything, however, Charlie Wilde was arrested in Winnipeg on an unrelated matter.
24 Anderson testified that Thatcher got him to purchase a .303 Lee Enfield rifle and some ammunition. On May 16 or 17, 1981, prior to the wounding of Mrs. Wilson, Anderson, at Thatcher's request, rented a car for Thatcher and turned it over to him by dropping it off at a prearranged location. On instructions given by Thatcher, An­derson waited to hear of the wounding of JoAnn Wilson before he went back to get the car. Once he had heard she had been shot he returned to the place where he had left the car, retrieved the vehicle, cleaned it and returned it to the rental dealer. He noted that the car was dusty and that the licence plates were smeared with mud. Anderson testified that in the fall of 1982 he again met with Thatcher and asked him how he could have missed, to which the appellant answered that he did not know.
25 Anderson further stated that when he again met Thatcher in late 1982, Thatcher turned over a handgun to him with a request that he find a silencer for it. The gun was a .357 calibre Magnum Security Special. Anderson was unsuccessful in getting a workable silencer made and on January 20, 1983 he saw Thatcher and reported that to him. At that time Thatcher told him he had been stalking his ex‑wife for a week and that he wanted the gun back. The gun was turned over to Thatcher on the afternoon of January 21, 1983. Earlier that morning Thatcher asked Anderson to get him a car. Anderson turned that over to Thatcher on that day on directions given him by Thatcher. Anderson then read in the newspaper that JoAnn Wilson had been killed. That was his signal to retrieve the car from where he had left it for Thatcher. He got the car back, cleaned it out, cleaned the licence plates off, and burned the items he removed from the vehicle. In cleaning out the car the witness testified that he removed clothing he had seen Thatcher wearing when Anderson turned the car over to him, plus a tuft of hair he thought came from a wig.
26 Finally, Anderson testified that on May 1, 1984 he again met Thatcher at a deserted farm near Caron. He had been provided with a body pack tape recorder to record the conversation between himself and Thatcher. A brief extract from the conversation follows:
Anderson: Umm, I got rid of the ah stuff outta' the car.
Thatcher: Good.
Anderson: You kinda' give me a scare there with, I found the stuff laying and then I wondered what the hell, I didn't know where the hell you, what the hell you'd done with the gun. (Sighs).
Thatcher: Listen, don't even talk...
Anderson: Hm.
Thatcher: ...like that. Don't. Don't, don't even...Walk out this way a little (unintelligible).
Anderson: (Grunts)
Thatcher: No. There are, there are no loose ends at all. And ah...
(Muffled noises.)
Thatcher: ...y'know, they've gone at every which direction. Umm, is there any way a loose end from a couple years ago can ever resurface?
Anderson: Ahhh.
Thatcher: From some of ahh, some of the guys tha, th, that ah, discussing some business with. Is there any way can ever be a problem surface from them?
Anderson: Mmm, y'mean the, from Vancouver and Winnipeg? Ahh. I ah located one of 'em.
Thatcher: The one that I met or the other one?
Anderson: Ahh, the other one.
Thatcher: Son‑of‑a‑bitch.
Anderson: Well. It's up to you.
Thatcher: Is he in, or, he's not in jail now is he, or in any trouble?
Anderson: Not to my knowledge.
Again:
Thatcher: Okay an' just remember there are no er, no problems an' there won't be unless they trip over something an' I got no intention of giving them anything to trip on.
Anderson: 'Kay.
Thatcher: There's no loose ends like, y'know, there's nothin' for them t' find. Y'know.
Anderson: It's all been...
Thatcher: All...
Anderson: ...taken care of.
Thatcher: Sure. Heavens yes. Heavens yes. I'm ahh, but I still don't trust the bastards for bugs. Mean, I don't know whether there's any possibility that that, 'ts why when we talk ah, just assume the bastards are listening.
(vi) The Evidence of Charles Wilde
27 Charles Wilde testified that in the summer of 1980 he met Gary Anderson while they were fellow inmates in a Regina jail. Anderson later asked him if he was interested in doing a killing. At that time Wilde told Anderson he was not interested. Wilde later talked to his friend Cody Crutcher and they decided that, while they would not do the killing, they would be happy to take the money offered for it. In December 1980, Anderson, Wilde and Crutcher met in Regina. Anderson gave Crutcher $7,500 which Crutcher split with Wilde. Shortly after that Wilde again met with Anderson and got another $7,000 plus a picture of the intended victim, JoAnn Wilson, and her car keys. In March 1981, Wilde met with Anderson and Thatcher. At that time Thatcher pressed him to do the job and offered him 50 to 60 thousand dollars if he would complete the killing. He told Wilde that his ex‑wife, her husband, and Stephanie were going to Ames, Iowa, to visit her parents during the Easter week of 1981. He indicated that Ames would be a good place to "hit" her, gave the Iowa address to Wilde, and suggested that he, Wilde, could phone him in a few days at the Legislature, by which time he would probably have some money available. While Wilde said he had no intention of killing anyone, he agreed to do what was asked in order to see if he could get some money. At a subsequent meeting with Thatcher, Thatcher gave Wilde $4,500 to assist him in travelling to the United States where JoAnn was visiting her parents. Shortly after, Wilde was arrested in Winnipeg for breaking into a drugstore. Wilde acknowledged having a lengthy criminal record, mainly for drug offences.
(vii) The Evidence of Richard Collver
28 Mr. Collver and Mr. Thatcher both sat as members of the Saskatchewan Legislature, the latter being then a member of the Liberal Party while Mr. Collver led the Provincial Progressive Conservative Party. In time Mr. Collver persuaded Thatcher to join the Conservative caucus, and the two became close personal friends. Their friendship continued after Mr. Collver resigned as Leader of his Party and sat as an independent Member.
29 Collver testified that during the 1979 fall session of the Legislature Thatcher repeatedly talked to him, Collver, about his marital problems, so much so that Mr. Collver thought him obsessed‑‑he couldn't think about politics or anything else. Collver invited Thatcher and several members of his family to visit over Christmas at his dude ranch near Phoenix, Arizona. The following extract from the charge of the trial judge will indicate the nature of Collver's further evidence.
Collver testified that the morning following their arrival he and Thatcher were talking about Thatcher's problems over coffee. He said that Thatcher told him he had to find someone to kill her. According to Collver he and Thatcher had previously talked about some horrible people two lawyer friends of Collver knew in Calgary and Edmonton. And he testified that Thatcher wanted him to phone one and get somebody to assist him in killing his wife. Collver says he told Thatcher he was suffering from an obsession and that he should get rid of it. When Thatcher renewed the request at least three more times the same day, Collver asked him to leave the ranch and he and the family departed the following morning.
The following spring, 1980, when the Legislature was in session, Collver testified that Thatcher again approached him about negotiating a settlement. He told Thatcher he would be bled to death if he kept on with lawyers, but that if he would give him a bottom line, that he, Collver, would try to negotiate a settlement. Thatcher told him his bottom line was $400,000.00 and custody of the two boys. Collver said he met with JoAnn and she asked him if she could bring in a friend to assist her, who it turned out was Tony Wilson. The upshot of the meeting was that JoAnn would accept $230,000.00 and custody of Stephanie, with Thatcher to have custody of the two boys. Collver said he was ecstatic. He immediately telephoned Thatcher and told him what he had achieved. According to Collver Thatcher's reply was, "The bitch isn't going to get anything." This ended the attempt by Collver to assist his friend Thatcher.
30 Collver indicated that he had not conveyed this information in any fashion to the authorities until shortly before his testimony at the trial. He had withheld such information after receiving legal advice to the effect that he was under no legal duty of disclosure.
IV
The Defence
31 Seven witnesses were called by the defence. As well, the accused testified on his own beha