Court headnote

Chartier v. Att. Gen. (Que.)
Collection
Supreme Court Judgments
Date
1979-05-08
Report
[1979] 2 SCR 474
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Quebec
Subjects
Torts
Decision Content
SUPREME COURT OF CANADA
Chartier v. Att. Gen. (Que.), [1979] 2 S.C.R. 474
Date: 1979-05-08
Benny J. Chartier (Plaintiff) Appellant;
and
The Attorney General of the Province of Quebec (Defendant) Respondent.
1978: February 21; 1979: May 8.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Negligence — False arrest — Wrongfully charged with manslaughter — Fault of provincial police officers — Illegality of Coroner's warrant — Liability of Attorney General — Quantum of damages — Civil Code, arts. 1053, 1054 — Coroners' Act, R.S.Q. 1964, c. 29, s. 38 — Criminal Code, 1953-54 (Can.), c. 51, ss. 435, 440, 448.
In 1965 appellant was the victim of an erroneous identification by the Quebec Police Force. He was arrested, detained for thirty hours and charged with manslaughter pursuant to the verdict of a coroner's jury, which wrongly found him criminally responsible for the death of one Wilfrid Dumont, who died of a cerebral hemorrhage as the result of a blow received in the middle of a street. A few days after appellant was charged the real assailant was reported; he confessed and was charged. The charge against appellant was then withdrawn. By his petition of right against respondent, appellant claimed damages for the injury resulting from the false arrest and the wrongful charge. The Superior Court of Quebec and the Court of Appeal unanimously refused to accept that the Police had been at fault and considered the error made by the officers as pardonable; hence the appeal to this Court.
Held (Martland, Dickson, Beetz and Pratte JJ. dissenting in part): The appeal should be allowed and judgment rendered for appellant in the amount of $50,500.
Per Laskin C.J. and Ritchie, Spence, Pigeon and Estey JJ: The rule of this Court against interfering with the concurrent findings of lower courts admits of certain exceptions, particularly where the courts below have misapprehended or overlooked material evidence. In the case at bar the trial judge, whose findings were on the whole endorsed by the Court of Appeal, mentioned only the depositions of the provincial police officers. He did not say a word of the baldness of the true assailant, which was observed by four eyewitnesses, and which the Police Force did not take into account in preparing the composite sketch. Similarly, he did not make any mention at all of the erroneous testimony of two provincial police officers at the Coroner's inquest. He was also mistaken regarding the outcome of the line-ups, and spoke of circumstantial evidence when there was nothing in the record to support such a statement.
After examining the entire record, and even considering only facts established beyond dispute and, mostly, by documentary evidence, the conclusion necessarily emerges that the members of the Police Force in the performance of their duties committed acts of fault towards the appellant for which the Attorney General is liable as employer. While the officers may have been justified in asking appellant to undergo questioning, they were not justified in placing him under arrest and holding him in a cell for some thirty hours. The issuance of the Coroner's warrant, relied on by the Police Force, constituted an abuse of power. The Coroner could not make use of the power conferred on him by the Act to order the detention of a person as a witness in order to have him incarcerated as a suspect. The officers who used the warrant were aware of the cause of its invalidity. They no doubt believed that this was not illegal, but their error of law does not excuse them. With regard to the power of police officers to arrest without a warrant, this power may only be exercised if the officer has reasonable grounds for believing that someone has committed an indictable offence, and the officer's belief must take into account all the information available to him. In the case at bar the officers seem to have felt that they could pay attention only to what might serve to incriminate appellant, and disregard, as being grounds of defence for him to raise at his trial, anything that might exonerate him. This approach is erroneous. Finally, it must be said that the actions of the Police Force at the Coroner's inquest were nothing less than scandalous. It is not necessary to determine whether the officers acted knowingly, with the intention of misleading the court before which they were testifying. It is sufficient to say that this was an unpardonable and unjustifiable error, which proved to be extremely prejudicial to appellant since it is obvious that, had it not been for the reprehensible manoeuvring and testifying of the officers, the appellant could never have been charged. The Police Force officers committed various acts of fault with regard to appellant in the performance of their duties, and consequently the Attorney General, representing Her Majesty in right of the Province of Quebec, is liable as employer. As to the assessment of the prejudice suffered by appellant, who had been a branch manager for a life insurance company, the damage is truly incalculable and obviously substantial. Although appellant's dismissal, which took place a few months after the charge had been withdrawn, is not a direct consequence of the false charge, how can one not see in it the repercussions of the psychological shock appellant had undergone? To all this must be added the damage caused by the publicity given to the Coroner's inquest and the charge. For a man whose success in business depends on the public's confidence, this item of damage is particularly serious. Since in the circumstances it is not possible to calculate the monetary losses, it is proper that an overall figure be set for that and for the moral damage. Everything considered, the sum of $50,000 appears reasonable; there should be added $500 for legal fees and other incidental expenses.
Faber v. The Queen, [1976] 2 S.C.R. 9; Landreville v. Town of Boucherville, [1978] 2 S.C.R. 801; Lamb v. Benoit, [1959] S.C.R. 321; National Harbours Board v. Langelier, [1969] S.C.R. 60, referred to.
Per Martland, Dickson, Beetz and Pratte JJ: The action rests on the faults allegedly committed by Police Force officers. As admittedly the latter were respondent's employees and the acts complained of were committed in the performance of their duties, there are two questions to be answered: was the conduct of the police officers faulty, and if so, was it the cause of the injury suffered by appellant?
The period during which the Police Force could have committed a fault with respect to appellant may be divided into six separate stages. The evidence relating to each of these stages was weighed by the Superior Court and the Court of Appeal, and these two Courts concluded unanimously that the conduct of the Police Force was not at fault. In these circumstances the role of this Court is limited, since it will only intervene to vary concurring conclusions of lower courts on questions of fact when these are clearly incorrect. It is in fact the actions of the Police Force in the second stage, that of the arrest, and the fifth stage, of the Coroner's inquest, which raise doubts as to the merits of the concurring decisions of the Court of Appeal and the Superior Court.
The second stage is appellant's arrest, made pursuant to a warrant issued by the Coroner. It. appeared from the evidence that appellant was arrested solely in order for the Police Force to question him while he was in confinement, and not to ensure that he would attend the Coroner's inquest. Since s. 38 of the Coroners' Act does not authorize the arrest of an individual for that purpose, the warrant was issued without right. Although the police officers carried out the order contained in the warrant of arrest, it is impossible to say that they were unaware that this was an unlawful warrant. They knew or should have known. Although they did not necessarily act in bad faith, their good faith in the circumstances is not an excuse: their fault was in not knowing or being in error. By making the arrest of appellant as they did, the police officers did not behave as a reasonable person, concerned about the interests of others: they committed a fault within the meaning of art. 1053 C.C. making them liable, and hence respondent as well.
So far as the fifth stage, that of the Coroner's inquest, is concerned, appellant alleged that the Coroner did not hear certain witnesses, whose testimony would have been favourable to appellant, and that the police officers, by their "dol", prevented an individual, whose testimony would have cleared appellant, from testifying. This argument cannot be upheld, since it is the Coroner alone who can decide whether he should hear, or should not hear, a particular witness, and even if there was a wrongful intervention by an officer to prevent an individual from testifying, there is no relationship of cause and effect between this intervention and the fact that the Coroner decided not to call the witness. The other complaint was made against Sgt. Wilmot, alleging that he misled the jury by stating that appellant's hair had a darker colour at the time of the inquest than when he was questioned following his arrest, about six weeks before. The expert opinion prepared immediately after the holding of the Coroner's inquest established that appellant did not dye his hair. Accordingly, Wilmot stated as a fact something which he knew or ought to have known was a mere possibility. His good faith in this regard is not important. When a police officer testifies and represents as fact that which is only inference, suspicion or conjecture, he fails in his duty and commits a fault. However, as a fault does not necessarily give rise to liability, the question is whether this fault was the effective cause of the verdict, so that without it the jury would in all probability have found appellant innocent.
Examination of the evidence adduced before the jury indicates at least four factors which have a direct causal connection with the verdict and which, excluding the erroneous statement by Wilmot, are more than sufficient to lead to a verdict unfavourable to appellant. It is quite possible that Wilmot's statement contributed to the injury sustained by appellant, but it did not play a decisive role in bringing about the injury, and it cannot be said that if this statement had not been made the verdict would, in all probability, have been different. Respondent therefore cannot be held liable on account of this statement.
With regard to the quantum of damages, there is no proof of actual loss since the arrest and imprisonment of appellant are not related to the subsequent termination of his contract of employment. However, appellant suffered a definite injury for which he is entitled to compensation. As the amount of such compensation has to be arbitrarily determined, the sum of $10,000 appears to be adequate compensation for the injury sustained as a consequence of the arrest and unlawful confinement.
Canadian National Railway Company v. Vincent, [1979] 1 S.C.R. 364; Strasbourg v. Lavergne, [1956] Que. Q.B. 189; Chaput v. Romain, [1955] S.C.R. 834; Martel v. Hôtel-Dieu St-Valuer, [1969] S.C.R. 745, referred to.
APPEAL from a decision of the Court of Appeal of Quebec[1] affirming a judgment of the Superior Court. Appeal allowed, Martland, Dickson, Beetz and Pratte JJ. dissenting in part.
Lawrence Corriveau, Q.C., for the appellant.
Marcel Guilbault, Q.C., for the respondent.
The judgment of Laskin C.J. and Ritchie, Spence, Pigeon and Estey JJ. was delivered by
PIGEON J.—This is an appeal by leave of this Court from a decision of the Court of Appeal of Quebec affirming the judgment of the Superior Court dismissing appellant's petition of right. Appellant was the victim of an erroneous identification by the Quebec Police Force. He was arrested, detained for thirty hours and charged with manslaughter of one Wilfrid Dumont, who died of a cerebral hemorrhage as the result of a blow received in the middle of a street. A few days after appellant was charged the real assailant was reported; he confessed and was charged. The charge against appellant was then withdrawn. He had obviously suffered serious harm. However, the courts below have refused to accept that the Quebec Police Force had been at fault and considered the error they had made as pardonable. A detailed account of the material facts is necessary for a proper review of these judgments.
On Sunday, July 11, 1965, at six o'clock in the evening, on Victoria Street in St. Lambert, a suburb of Montreal, a motorist about fifty years old became impatient because the driver of a new Cadillac in front of him was not moving nor pulling over to the right. He got out of his car and struck the other driver on the head with his fist. The latter, one Wilfrid Dumont, started his car and went home. He told his family about the incident, and then said to his son:
[TRANSLATION] Tell me, Jean, do you know any men who after they have played a poor game of golf become angry and take their anger out on other people like that?
The following day he gave his version of the incident to two City of St. Lambert policemen and later died in hospital. The autopsy report showed a cerebral hemorrhage apparently caused by a punch. The St. Lambert police had notices published asking anyone who had witnessed the incident to come forward. Here is what was said of the results in their report dated July 18:
Six witnesses came forward and identified themselves as follows:
Mr. & Mrs. Lloyd HOLLAND, age 41 and 35 respectively, visiting at 202 Elm St. St. Lambert, 671-7676. The mother of Mrs. Holland resides at 202 Elm St. Actual address of Mr. Mrs. Holland, Nassau, Bahamas, telephone 241444, Post office box 5828 m-s-.
Mr. René Forget, age 65, residing at 575 Notre Dame St. St.Lambert, phone number 671-5218.
Mr. A.C. Lemaitre, residing at 630 Victoria Ave, St.Lambert, 672-1292.
Steven Livie, age 12, residing at 80 St.Denis St. St.Lambert, 671-0357.
E. Turgeon, residing at 224 Prince Arthur St. St.Lambert, 671-0367.
The St. Lambert police's file contains the statements the officers were given by three of these six witnesses. First there is the joint statement given by Mr. and Mrs. Holland on July 15. As written by Cpl. Daigle it is as follows: [TRANSLATION] He—she—on the afternoon of Sunday, July Il, 1965, at about 6:00 p.m., saw Mr. Dumont's car stopped in the middle of VICTORIA Street close to WEBSTER Street; another driver stopped behind Mr. DUMONT and started shouting at him; the driver hit him in the face with his left fist, shouting at him (in English) "THIS WILL SHOW YOU TO KEEP ON THE RIGHT SIDE OF THE STREET!"; after striking him the man continued to yell at him, and then forced open the door of Mr. DUMONT'S car with his left hand, opening it about 18 inches; in order to escape from his assailant Mr. DUMONT stepped on the accelerator of his car and thus managed to shake off his assailant; the latter sped off from the scene heading toward Elm-LORNE Street.
DESCRIPTION: 5'7" ... 170 lbs ... 52 years old. Round face ... greying hair ... rather fat.
Combed to the back.
Very thin hair.
He was wearing a white short-sleeved shirt ... brown glasses ... dark trousers held up by a belt.
The suspect was driving an expensive car.
HARD TOP.
Off-white ... 1962? Chevrolet? ... Pontiac? Oldsmobile? ... Buick?
The other statement the St. Lambert police obtained was one given by the second to last witness, Steven Livie, and taken down by the same officer when this witness went to the station with his father. It read as follows:
at the time of the incident, he saw standing near ALBERT'S on VICTORIA. He was (saw) everything, that has happened to M. DUMONT ... informations that, we already have in our possession, but, he remembers this;
Suspect; about 50 years old.
bald head, with grey hair on the side.
5'7" ... fat.
bad temper, saliva at the mouth.
wears glass ... ordinary.
spoke in English.
hit Mr DUMONT with his left hand.
was driving a Buick? 62 or 63 or 64? light green.
The investigations of the St. Lambert police proved to be fruitless. Their only suspect cleared himself easily. On August 19, Cpl. Yves Lefebvre and Cpl. Camil DeGrâce of the Provincial Police Force began a new investigation. They went to examine the St. Lambert police's file and obtained a copy of its report. However, on September 16 DeGrâce, who denied having ever seen young Livie's statements, prepared a report in which one reads:
[TRANSLATION] Through radio and television the St. Lambert police were able to find four (4) eyewitnesses of this incident, namely:
1. Mr. and Mrs. Lloyd HOLLAND;
2. René FORGET;
3. Mr. A. C. LEMAÎTRE.
It will be seen that in compiling this list of eyewitnesses located by the St. Lambert police, the Quebec Police Force eliminated the last two and reduced the number to four. The St. Lambert report dated July 18 was, however, the first annex to the document. Following the paragraph I have just quoted the DeGrâce report contains the statements obtained by the Quebec Police Force from most of the known witnesses. In this case these are documents signed by the witnesses.
First there is the new version given by Mrs. Holland, her husband having returned to Nassau. Here is her description of the assailant:
[TRANSLATION] This is how I would describe the individual: size, medium; height, 5'8"; shoulders, broad; age, 50-55 years; weight, slightly fat, about 180 to 200 pounds; hair, black, somewhat greying, combed to the back and flat; not much hair, balding, very balding; dress, white short-sleeved shirt, open-necked; dark trousers, brown or grey ... I do not know whether he had a moustache or glasses. He looked clean. Oval face.
The assailant had a familiar face, but I certainly did not know him. He is the type of man you showed me in photograph No. 7955.
(Photograph No. 7955 seems to be that of the St. Lambert police's suspect. We shall see later what René Forget had to say about it.)
After this the report contains the statement given by Mr. and Mrs. Holland to the St. Lambert police and that police's information regarding their suspect. There follows the statement obtained by the Quebec Police Force from the witness Lemaître. The description he gives of the assailant reads as follows:
DESCRIPTION: Weight: 165, 170 lbs, 5'7" Face: round—Hair: Close cut, Grey—Age 50—Physically good shape, Had a pipe straight, had it when he drove away—Moustache ??? Glasses ???
This witness had also given the St. Lambert police a signed statement; all it contained by way of description of the assailant reads as follows:
... An elderly short thickset man in a short sleeved tee shirt and smoking a pipe, .. .
We now come to René Forget's statement taken on August 19 by officers Lefebvre and DeGrâce. After relating the facts, he says:
[TRANSLATION] I did not know this individual but I may have seen him before. I did not know the victim either. When the individual in the yellow car went by, turning onto Elm Street near the park where I was, he was about fifteen feet away; a Mr. Turgeon was with me then, so the individual looked at me as he was turning; he wore glasses, I don't know what kind; he didn't seem to be in too much of a hurry; I think he had a small square-cut moustache like Hitler's. The man in the photograph 7955 you are showing me is definitely not the right type. I don't know him either.
However, I think that the photograph I helped your artist make was the best likeness,
This is the best description I can give you: hair, brown (but not sure); weight, 170 lbs.; age, 50; height, 5'8".
White short-sleeved shirt; trousers, I didn't notice. He had a rather round face and was tanned. I did not notice a pipe, I think I could identify him if I saw him.
In the statement he had given the St. Lambert police the only description he gave of the assailant was:
[TRANSLATION] The man is six feet tall and wears a moustache.
Finally, DeGrâce's report contains the statement given to him by Ernest Turgeon. After relating the facts the latter said: [TRANSLATION] ... He did not have a pipe; I don't know* if he was wearing glasses. It was a face I had seen before but couldn't place.
Description: fairly round face that was very red from the blood rushing to his face, with deep-set eyes. Weight 170-160, age 50 or 60. Grey hair, not much on his head. Dress, I don't remember. The car was very clean and the licence contained the letter H. The licence plate was clean. I couldn't say what the make or colour of the first car was. I think I would be able to identify this man if I ever saw him again.
(*In the appeal case the French reads "vois", which does not make sense; in the handwritten original, which is somewhat difficult to read, the word is in fact "sais".)
As for young Steven Livie, he is completely overlooked in the DeGrâce report—not a word is said about him. His name and his statement were contained in the St. Lambert file, and he was brought to the provincial police headquarters on August 19 when a composite sketch was being prepared. There is no indication why he was not questioned.
We have little information on the preparation of the composite sketch since the defence did not call as a witness the artist who prepared it. It seems that the boy Steven Livie was the last witness to see the artist since he only saw the last composite drawing prepared, whereas the witness Forget certainly saw two drawings. Lefebvre and DeGrâce were on the premises since they witnessed the signing of the statement they took from Forget, after the latter had been interviewed by the artist. It must have been essentially on the basis of this witness's indications that the artist prepared the last composite sketch, the one that was used to find the suspect because the artist mistakenly added the small moustache which Forget alone had described.
The composite sketch with which Cpl. Lefebvre then undertook to locate the assailant, and which was to lead him to appellant, contained one major defect: it did not take into account a distinctive feature mentioned by four of the eyewitnesses [sic], namely a bald head or forehead. The witnesses whom Cpl. Lefebvre considered to have been in the best position to identify the assailant, Mr. an Mrs. Holland, had both mentioned it in their first version, which is essentially that of the husband, and where we read:
[TRANSLATION] Greying hair ... very thin hair. (cheveux très mince (sic))
Obviously this Anglophone used in French the words "cheveux très minces" to translate "very thin hair". His wife, who is Francophone, later said, in popular Quebec French:
[TRANSLATION] Black hair, somewhat greying ... balding, very balding (calé, très calé).
The Dictionnaire de la langue française au Canada, published by Bélisle, defines "caler" as [TRANSLATION] "to lose one's hair, to go bald".
The witness Turgeon said:
[TRANSLATION] Grey hair, not much on his head.
Steven Livie said:
Bald head, with grey hair on the side.
Lemaître said:
Hair, close cut, gray.
René Forget was not sure.
The pronounced baldness was thus noticed by four witnesses. Why was it not taken into account?
The grey hair on the side of the assailant's head observed by five of the six eyewitnesses will later play a major role in the identification, but since the composite sketch shows a full-face view of the man being sought, it does not play any part in that. The very opposite is true of the bald forehead. It is because this feature was not taken into account that the composite sketch led the Quebec Police Force to appellant. One of the exhibits in the record is a page from a newspaper at the top of which appears a photograph of appellant besides that of Wilfrid Dumont's assailant. What strikes one immediately is the contrast between the bald head of the real culprit and the fine head of hair on appellant. When one looks at the composite sketch (Exhibit P-11) one cannot fail to be struck by the resemblance to appellant owing to the hair on the forehead. In view of certain statements the victim made to his son after the incident, officer Lefebvre had reason to believe that the assailant was a golfer. He therefore went to see an employee of a golf club, to whom he showed the composite sketch. The latter gave him appellant's name, and he thought he had the culprit. On September 1 the Quebec Police Force obtained from the Coroner a warrant for the arrest of appellant as a witness under s. 38 of the Coroners' Act (R.S.Q. 1964, c. 29):
38. Previous to or during the inquest, the coroner shall have full power to order the detention, with or without a warrant, of any person or witness whom he may deem necessary, and who, in his opinion, may fail or refuse to be present at the inquest.
He may require such person or witness to furnish sufficient bail to ensure his being present at the inquest.
On September 2, at 9 o'clock, officers Lawton and DeGrâce asked appellant to go with them to provincial police headquarters. When questioned about his movements on July 11, he did not take the matter seriously at first. He was right in thinking there had been a mistake, but was wrong in assuming that the police would realize it. He made the error of thinking of the wrong week and said he had been in Poland Springs that day. A check revealed immediately that it was on the preceding Sunday that he had been in Poland Springs. Right up to the argument in this Court this mistake, understandable as it was, was relied on as an element of justification for having refused to credit appellant's denials. Anyone should be well aware how easy it is to make an honest error in a date. Did not DeGrâce have to admit at the trial that he had made one in a report where he gave August 10 instead of September 10, as the date of an interview with a witness?
At 11 o'clock, the Quebec Police Force began treating appellant no longer as a person submitting to questioning voluntarily, but as a suspect, as an accused person, under arrest. All his personal effects, even his belt, were taken from him and he was handcuffed and placed in a cell after being refused permission to talk to a lawyer or anyone else. It was not until 6 o'clock that he was allowed to telephone his wife to obtain more specific information on his activities of July Il, since she keeps a diary. She rushed to bring it to police headquarters because she was led to believe that she would be able to see her husband. This was refused, but the diary was taken. She was told that there was complete evidence against her husband, and here I must quote what she says Sgt. Wilmot told her:
He did say that if Mr. Chartier would only admit it it could all be cleared up very quickly.
An official line-up report shows that at 4 o'clock there was a line-up for viewing by the witness Lemaître. ln the list of persons lined up, No. 2 is described as follows:
[TRANSLATION] 2.—Benny CHARTIER (45 years old)—suspect being held in a cell.
The following is the account in the report of what the witness said:
No. 2 looks like the man that I saw hit another man in St. Lambert on the 11th of July. His height and general description is the same excepted his bum or rear end is too big. It's certainly is not any of the other four. The voice I heard resemble that of No. 1.
It will be noted that the response of the witness Lemaître is not an identification; it merely points out a resemblance while at the same time noting a dissimilarity.
This line-up, like all the others conducted subsequently, took place in specially designed premises. The witnesses see the individuals lined up through a special glass which allows them to see those in the line-up without the latter being able to see or hear them.
At twenty minutes to eight a second line-up was conducted where the witness was René Forget. The report signed by Sgt. Wilmot states as follows:
[TRANSLATION] He states that none of these individuals can be Mr. DUMONT's assailant .. .
The statement of this Iast witness is not a failure to identify, it exonerates appellant. Forget did not merely say that he could not identify any of the individuals in the line-up as Dumont's assailant; he stated positively that none of them could be the assailant. It was, as he said at the trial only, the fact that he knew appellant that enabled him to be so positive. Knowing him from before, he could be certain that he would have recognized him at the time of the incident if he had been the assailant.
Despite this appellant was kept in a cell and questioned on several occasions specifically about his movements on July 11. He agreed to take a lie detector test. Sgt. Wilmot, who conducted the test, entered "guilty knowledge" as the conclusion. This conclusion appears absurd to me, but the Quebec Police Force saw it as some confirmation of its suspicions. The following day appellant finally signed a statement in which he erroneously said that after playing golf on July 11 he went home to change and then went back to pick his wife up at the golf club between five and five-thirty. At about three o'clock he was released on his word after a release order was obtained from the Coroner, in which the latter stated that he was now satisfied that [TRANSLATION] "appellant will be present when the Court has set a date for the inquest".
On September 13, DeGrâce prepared a report in which he stated: [TRANSLATION] "The following are the reasons we have for believing that Mr. CHARTIER is our No. 1 suspect".
As in the report of September 16, there is the statement: [TRANSLATION] "We have four eyewitnesses". Concerning the two identification sessions, DeGrâce wrote:
[TRANSLATION] ... the witness LEMAÎTRE looked at the suspect for three (3) to four (4) minutes without looking at the other individuals and told us that there was a great resemblance, but he started to say to me in English: "I don't want to get involved", and he spoke of juries in Court ... Therefore the witness LEMAÎTRE did not wish to commit himself and be obliged to testify.
The other witness FORGET was not able to identify the suspect, but we were expecting this.
As to the witness Forget, a comparison with the official report shows how DeGrâce was distorting his statement before going on to say: [TRANSLATION] We had a photograph taken of the line-up and the only chance we have left is to try to have them identified by our two (2) best witnesses in Nassau, Mr. and Mrs. HOLLAND.
Sgt. Wilmot therefore went to Nassau with photographs. Some were of line-ups, others were the kind used by the criminal identity service. He obtained a statement from Mr. Holland which reads in part as follows:
After having examined the four group photographs, either individual No 2 or No 4 in photo no 3 resemble the man and from the 9 photographs of individual I picked two of the same man one without and one with glasses.
I am reasonably sure and that if I saw this man again in person I would recognize him immediately, ...
From Mrs. Holland Sgt. Wilmot obtained a statement in which she said:
I Mrs Loyd George Holland, Nassau Bahamas, do solemnly declare that from the nine individual photos you show me there is just one photo that resembles the man that I saw hit the driver of the green Cadillac in St. Lambert on July 11th 1965 (Photo de B).
Of the group photos that you show me there is just photo no 3 and individuals no 1 and no 2 that resemble the man that struck the other.
If I was to see this man again in person I might be able to identify him.
The Coroner's inquest was scheduled for October 21. The Hollands were brought back from Nassau. Cpl. Lefebvre prepared what he called a "brief" for the Crown Attorney. In it he gave the names of the six eyewitnesses, including Ernest Turgeon and Steven Livie. Concerning René Forget, all he said was:
[TRANSLATION] Is apparently an eyewitness of the incident. However, the details he gave and the description of the individual's car do not coincide with those given by the other witnesses. He is thus a second-rate witness.
It will be recalled that this witness knew appellant and stated on September 2 that the latter could not be the assailant. The other witness who knew appellant, although the Quebec Police Force did not yet know this, was Steven Livie. The "brief" contains the following concerning him:
[TRANSLATION] Boy of 12, also an eyewitness; he was on Victoria Street on July 11, 1965 when he noticed two (2) parked cars and a man hitting another man who was seated in one car. He provided a description of both the car and the assailant.
The inquest was to take place in the afternoon but appellant and all the eyewitnesses other than René Forget were summoned so that a line-up could be conducted. Much was made of the fact that when he saw appellant go by, Mr. Holland apparently said to the police: "Here's your man". This might have meant that here was the assailant, but in itself it merely signified that the man was their suspect. It must not be forgotten that one of them had gone to show him photographs of line-ups, indicating that they had already laid their hands on someone they wished to identify. In the official report of the line-up, Mr. Holland's statement reads as follows:
... "It is the 3rd man from the right, that's the man no 3, that I saw standing the side the Cadillac in St. Lambert the 11th of July 1965, I recognize him by his posture, build, facial features, stomach, etc. but the only thing that is different is that his hair was grey at the time at the incident."
Mrs. Holland's statement:
"The no 3 man strikes me has the man, he resembles the man that I saw strike the other on the 11th of July 1965, this my reaction from his height, build, etc. as far as I can remember."
Steven Livie's statement:
"I don't see the man there, the only one that 1 recognize is No. 3, Mr. CHARTIER who is friend of my father."
A. C. Lemaître's statement:
"Number 3 resembles the closest, it could be him but I cannot say positively."
Ernest Turgeon's statement:
[TRANSLATION] He cannot identify anyone.
It will be seen that there was no identification The Hollands merely pointed out a resemblance but with one difference noted by the husband unlike the assailant in the incident, Chartier did not have grey hair.
Given this, how was a verdict of criminal liability obtained against appellant? Here is how it happened. First of all, the witnesses who might have said that appellant could not have been the assailant were not called. Of the six eyewitnesses, only the Hollands were called upon to testify. Steven Livie's mother received a telephone call from Cpl. Lefebvre telling her that her son's presence would not be required. The Hollands refused to identify appellant before the Coroner. Mr. Holland said:
I seen an identical man but the hair was not grey, that's why I don't swear that is the man.
He added:
The only doubt I have about the man I must explain that I am definite that the man had grey hair on the side of his head; I am definite about that; that man this morning did not have that; I pointed him out immediately and I think I said to the Officer: "Wait a minute, the chap should have grey hair" I think I made that point clear.
His wife went further. When she was asked whether she had seen the assaillant since the incident, she said "no", even when she was reminded of the morning's identification session:
Q. Have you since the incident had the occasion to see the man?
A. No, sir.
Q. That you saw that day fight with the man in the car?
A. No, sir.
Q. Never?
A. No, sir.
Q. Have you been called by the police in a line-up to identify that man?
A. Yes.
Q. When was it?
A. This morning.
Her last answer in examination-in-chief was:
I am positive of that: he was a dark haired man going grey like a fifty year old man starting to get grey. No other witnesses were called to identify the suspect. How after this could the jury be persuaded to return a verdict of criminal liability against appellant? It is very simple. Camil DeGrâce and Frank Wilmot testified. The former said, in particular:
[TRANSLATION] EXAMINED BY THE CORONER
Q. Did you notice his physique, the colour of his hair, his complexion?
A. He had greying hair.
Q. And when was it that you saw this, the 11th or 12th?
A. September 2.
Q. September 2?
A. Yes.
EXAMINED BY MR. ANDRÉ CHALOUX:
Q. Could he have had red or brown hair at that time?
A. No, sir.
Q. Are you positive of that?
A. He had greying hair, fairly greying.
EXAMINED BY THE CORONER:
Q. Have you seen him since?
A. I saw him here today.
Q. Did you notice the colour of his hair?
A. It is darker.
After this Sgt. Frank Wilmot said in reply to questions by Mr. André Chaloux of the Crown Attorney's office:
[TRANSLATION] Q. Now, to your knowledge, did you notice during the questioning whether this person whom you were questioning had red or black or whatever colour hair?
A. It was certainly grey, rather like the colour ... not quite as white as that of Mr. Corriveau, somewhat blacker but ... I was very suprised [sic] today when I saw Mr. Chartier—he no longer has grey hair.
Q. You noticed today that Mr. Chartier did not today have the same colour hair he had when you questioned him?
A. Yes, that's right.
The Coroner refused to hear witnesses appellant wished to call in his defence. These witnesses were people with whom appellant had played golf on the day of the incident and who were prepared to state that he had not left the course until 6:30. The police had had the opportunity of questioning them.
Appellant then testified. He said, of course, that he had been in no way involved in the incident and stated that he had been at the golf course until about 6:30 on July 11. Suddenly he was questioned by one of the jurors as follows:
JUROR NUMBER 1:
Q. The day of the accident, July 11th, do you remember if you took any alcoholic beverages? A. I don't drink.
Q. In the parade with the policeman; do you remember if you were identified?
A. They told me every time that I was.
Q. Have you changed the color of your hair recently?
A. No, sir.
Q. It's the same as it was then?
A. Yes.
BY THE ATTORNEY FOR THE CROWN:
Q. Can you swear that Mr. Chartier?
A. Yes.
Q. Are you left handed or right handed?
A. Right handed, I write with the right hand, I do everything with the right hand, I threw ball with my right hand .. .
Q. Do you play golf with your right hand?
A. Yes.
Immediately following the verdict the Coroner issued a warrant for appellant's arrest, as provided under s. 462 of the Criminal Code. A charge of manslaughter was laid before a judge of the Sessions of the Peace. Appellant appeared and opted for a preliminary inquiry, which was scheduled for October 29. Having been granted bail he hastened to have his hair examined by an expert.
The media gave the case a great deal of publicity. It was then that, learning by this means that an innocent person had been charged, someone who knew the identity of the real culprit gave this information to the St. Lambert Chief of Police. The latter was able to verify this information with other persons who had also remained silent up to that time. Promptly, on Monday morning, October 25, he informed the Quebec Police Force of the need to reopen the investigation.
The day after the verdict, the Quebec Police Force requested an expert opinion to determine whether appelant had dyed hair, since otherwise it was obviously impossible for it to have ceased being grey at the temples between September 21 and October 21. Appellant immediately agreed willingly

Court headnote

Chartier v. Att. Gen. (Que.) Collection Supreme Court Judgments Date 1979-05-08 Report [1979] 2 SCR 474 Judges Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves On appeal from Quebec Subjects Torts Decision Content SUPREME COURT OF CANADA Chartier v. Att. Gen. (Que.), [1979] 2 S.C.R. 474 Date: 1979-05-08 Benny J. Chartier (Plaintiff) Appellant; and The Attorney General of the Province of Quebec (Defendant) Respondent. 1978: February 21; 1979: May 8. Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ. ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC Negligence — False arrest — Wrongfully charged with manslaughter — Fault of provincial police officers — Illegality of Coroner's warrant — Liability of Attorney General — Quantum of damages — Civil Code, arts. 1053, 1054 — Coroners' Act, R.S.Q. 1964, c. 29, s. 38 — Criminal Code, 1953-54 (Can.), c. 51, ss. 435, 440, 448. In 1965 appellant was the victim of an erroneous identification by the Quebec Police Force. He was arrested, detained for thirty hours and charged with manslaughter pursuant to the verdict of a coroner's jury, which wrongly found him criminally responsible for the death of one Wilfrid Dumont, who died of a cerebral hemorrhage as the result of a blow received in the middle of a street. A few days after appellant was charged the real assailant was reported; he confessed and was charged. The charge against appellant was then withdrawn. By his petition of right against respondent, appellant claimed damages for the injury resulting from the false arrest and the wrongful charge. The Superior Court of Quebec and the Court of Appeal unanimously refused to accept that the Police had been at fault and considered the error made by the officers as pardonable; hence the appeal to this Court. Held (Martland, Dickson, Beetz and Pratte JJ. dissenting in part): The appeal should be allowed and judgment rendered for appellant in the amount of $50,500. Per Laskin C.J. and Ritchie, Spence, Pigeon and Estey JJ: The rule of this Court against interfering with the concurrent findings of lower courts admits of certain exceptions, particularly where the courts below have misapprehended or overlooked material evidence. In the case at bar the trial judge, whose findings were on the whole endorsed by the Court of Appeal, mentioned only the depositions of the provincial police officers. He did not say a word of the baldness of the true assailant, which was observed by four eyewitnesses, and which the Police Force did not take into account in preparing the composite sketch. Similarly, he did not make any mention at all of the erroneous testimony of two provincial police officers at the Coroner's inquest. He was also mistaken regarding the outcome of the line-ups, and spoke of circumstantial evidence when there was nothing in the record to support such a statement. After examining the entire record, and even considering only facts established beyond dispute and, mostly, by documentary evidence, the conclusion necessarily emerges that the members of the Police Force in the performance of their duties committed acts of fault towards the appellant for which the Attorney General is liable as employer. While the officers may have been justified in asking appellant to undergo questioning, they were not justified in placing him under arrest and holding him in a cell for some thirty hours. The issuance of the Coroner's warrant, relied on by the Police Force, constituted an abuse of power. The Coroner could not make use of the power conferred on him by the Act to order the detention of a person as a witness in order to have him incarcerated as a suspect. The officers who used the warrant were aware of the cause of its invalidity. They no doubt believed that this was not illegal, but their error of law does not excuse them. With regard to the power of police officers to arrest without a warrant, this power may only be exercised if the officer has reasonable grounds for believing that someone has committed an indictable offence, and the officer's belief must take into account all the information available to him. In the case at bar the officers seem to have felt that they could pay attention only to what might serve to incriminate appellant, and disregard, as being grounds of defence for him to raise at his trial, anything that might exonerate him. This approach is erroneous. Finally, it must be said that the actions of the Police Force at the Coroner's inquest were nothing less than scandalous. It is not necessary to determine whether the officers acted knowingly, with the intention of misleading the court before which they were testifying. It is sufficient to say that this was an unpardonable and unjustifiable error, which proved to be extremely prejudicial to appellant since it is obvious that, had it not been for the reprehensible manoeuvring and testifying of the officers, the appellant could never have been charged. The Police Force officers committed various acts of fault with regard to appellant in the performance of their duties, and consequently the Attorney General, representing Her Majesty in right of the Province of Quebec, is liable as employer. As to the assessment of the prejudice suffered by appellant, who had been a branch manager for a life insurance company, the damage is truly incalculable and obviously substantial. Although appellant's dismissal, which took place a few months after the charge had been withdrawn, is not a direct consequence of the false charge, how can one not see in it the repercussions of the psychological shock appellant had undergone? To all this must be added the damage caused by the publicity given to the Coroner's inquest and the charge. For a man whose success in business depends on the public's confidence, this item of damage is particularly serious. Since in the circumstances it is not possible to calculate the monetary losses, it is proper that an overall figure be set for that and for the moral damage. Everything considered, the sum of $50,000 appears reasonable; there should be added $500 for legal fees and other incidental expenses. Faber v. The Queen, [1976] 2 S.C.R. 9; Landreville v. Town of Boucherville, [1978] 2 S.C.R. 801; Lamb v. Benoit, [1959] S.C.R. 321; National Harbours Board v. Langelier, [1969] S.C.R. 60, referred to. Per Martland, Dickson, Beetz and Pratte JJ: The action rests on the faults allegedly committed by Police Force officers. As admittedly the latter were respondent's employees and the acts complained of were committed in the performance of their duties, there are two questions to be answered: was the conduct of the police officers faulty, and if so, was it the cause of the injury suffered by appellant? The period during which the Police Force could have committed a fault with respect to appellant may be divided into six separate stages. The evidence relating to each of these stages was weighed by the Superior Court and the Court of Appeal, and these two Courts concluded unanimously that the conduct of the Police Force was not at fault. In these circumstances the role of this Court is limited, since it will only intervene to vary concurring conclusions of lower courts on questions of fact when these are clearly incorrect. It is in fact the actions of the Police Force in the second stage, that of the arrest, and the fifth stage, of the Coroner's inquest, which raise doubts as to the merits of the concurring decisions of the Court of Appeal and the Superior Court. The second stage is appellant's arrest, made pursuant to a warrant issued by the Coroner. It. appeared from the evidence that appellant was arrested solely in order for the Police Force to question him while he was in confinement, and not to ensure that he would attend the Coroner's inquest. Since s. 38 of the Coroners' Act does not authorize the arrest of an individual for that purpose, the warrant was issued without right. Although the police officers carried out the order contained in the warrant of arrest, it is impossible to say that they were unaware that this was an unlawful warrant. They knew or should have known. Although they did not necessarily act in bad faith, their good faith in the circumstances is not an excuse: their fault was in not knowing or being in error. By making the arrest of appellant as they did, the police officers did not behave as a reasonable person, concerned about the interests of others: they committed a fault within the meaning of art. 1053 C.C. making them liable, and hence respondent as well. So far as the fifth stage, that of the Coroner's inquest, is concerned, appellant alleged that the Coroner did not hear certain witnesses, whose testimony would have been favourable to appellant, and that the police officers, by their "dol", prevented an individual, whose testimony would have cleared appellant, from testifying. This argument cannot be upheld, since it is the Coroner alone who can decide whether he should hear, or should not hear, a particular witness, and even if there was a wrongful intervention by an officer to prevent an individual from testifying, there is no relationship of cause and effect between this intervention and the fact that the Coroner decided not to call the witness. The other complaint was made against Sgt. Wilmot, alleging that he misled the jury by stating that appellant's hair had a darker colour at the time of the inquest than when he was questioned following his arrest, about six weeks before. The expert opinion prepared immediately after the holding of the Coroner's inquest established that appellant did not dye his hair. Accordingly, Wilmot stated as a fact something which he knew or ought to have known was a mere possibility. His good faith in this regard is not important. When a police officer testifies and represents as fact that which is only inference, suspicion or conjecture, he fails in his duty and commits a fault. However, as a fault does not necessarily give rise to liability, the question is whether this fault was the effective cause of the verdict, so that without it the jury would in all probability have found appellant innocent. Examination of the evidence adduced before the jury indicates at least four factors which have a direct causal connection with the verdict and which, excluding the erroneous statement by Wilmot, are more than sufficient to lead to a verdict unfavourable to appellant. It is quite possible that Wilmot's statement contributed to the injury sustained by appellant, but it did not play a decisive role in bringing about the injury, and it cannot be said that if this statement had not been made the verdict would, in all probability, have been different. Respondent therefore cannot be held liable on account of this statement. With regard to the quantum of damages, there is no proof of actual loss since the arrest and imprisonment of appellant are not related to the subsequent termination of his contract of employment. However, appellant suffered a definite injury for which he is entitled to compensation. As the amount of such compensation has to be arbitrarily determined, the sum of $10,000 appears to be adequate compensation for the injury sustained as a consequence of the arrest and unlawful confinement. Canadian National Railway Company v. Vincent, [1979] 1 S.C.R. 364; Strasbourg v. Lavergne, [1956] Que. Q.B. 189; Chaput v. Romain, [1955] S.C.R. 834; Martel v. Hôtel-Dieu St-Valuer, [1969] S.C.R. 745, referred to. APPEAL from a decision of the Court of Appeal of Quebec[1] affirming a judgment of the Superior Court. Appeal allowed, Martland, Dickson, Beetz and Pratte JJ. dissenting in part. Lawrence Corriveau, Q.C., for the appellant. Marcel Guilbault, Q.C., for the respondent. The judgment of Laskin C.J. and Ritchie, Spence, Pigeon and Estey JJ. was delivered by PIGEON J.—This is an appeal by leave of this Court from a decision of the Court of Appeal of Quebec affirming the judgment of the Superior Court dismissing appellant's petition of right. Appellant was the victim of an erroneous identification by the Quebec Police Force. He was arrested, detained for thirty hours and charged with manslaughter of one Wilfrid Dumont, who died of a cerebral hemorrhage as the result of a blow received in the middle of a street. A few days after appellant was charged the real assailant was reported; he confessed and was charged. The charge against appellant was then withdrawn. He had obviously suffered serious harm. However, the courts below have refused to accept that the Quebec Police Force had been at fault and considered the error they had made as pardonable. A detailed account of the material facts is necessary for a proper review of these judgments. On Sunday, July 11, 1965, at six o'clock in the evening, on Victoria Street in St. Lambert, a suburb of Montreal, a motorist about fifty years old became impatient because the driver of a new Cadillac in front of him was not moving nor pulling over to the right. He got out of his car and struck the other driver on the head with his fist. The latter, one Wilfrid Dumont, started his car and went home. He told his family about the incident, and then said to his son: [TRANSLATION] Tell me, Jean, do you know any men who after they have played a poor game of golf become angry and take their anger out on other people like that? The following day he gave his version of the incident to two City of St. Lambert policemen and later died in hospital. The autopsy report showed a cerebral hemorrhage apparently caused by a punch. The St. Lambert police had notices published asking anyone who had witnessed the incident to come forward. Here is what was said of the results in their report dated July 18: Six witnesses came forward and identified themselves as follows: Mr. & Mrs. Lloyd HOLLAND, age 41 and 35 respectively, visiting at 202 Elm St. St. Lambert, 671-7676. The mother of Mrs. Holland resides at 202 Elm St. Actual address of Mr. Mrs. Holland, Nassau, Bahamas, telephone 241444, Post office box 5828 m-s-. Mr. René Forget, age 65, residing at 575 Notre Dame St. St.Lambert, phone number 671-5218. Mr. A.C. Lemaitre, residing at 630 Victoria Ave, St.Lambert, 672-1292. Steven Livie, age 12, residing at 80 St.Denis St. St.Lambert, 671-0357. E. Turgeon, residing at 224 Prince Arthur St. St.Lambert, 671-0367. The St. Lambert police's file contains the statements the officers were given by three of these six witnesses. First there is the joint statement given by Mr. and Mrs. Holland on July 15. As written by Cpl. Daigle it is as follows: [TRANSLATION] He—she—on the afternoon of Sunday, July Il, 1965, at about 6:00 p.m., saw Mr. Dumont's car stopped in the middle of VICTORIA Street close to WEBSTER Street; another driver stopped behind Mr. DUMONT and started shouting at him; the driver hit him in the face with his left fist, shouting at him (in English) "THIS WILL SHOW YOU TO KEEP ON THE RIGHT SIDE OF THE STREET!"; after striking him the man continued to yell at him, and then forced open the door of Mr. DUMONT'S car with his left hand, opening it about 18 inches; in order to escape from his assailant Mr. DUMONT stepped on the accelerator of his car and thus managed to shake off his assailant; the latter sped off from the scene heading toward Elm-LORNE Street. DESCRIPTION: 5'7" ... 170 lbs ... 52 years old. Round face ... greying hair ... rather fat. Combed to the back. Very thin hair. He was wearing a white short-sleeved shirt ... brown glasses ... dark trousers held up by a belt. The suspect was driving an expensive car. HARD TOP. Off-white ... 1962? Chevrolet? ... Pontiac? Oldsmobile? ... Buick? The other statement the St. Lambert police obtained was one given by the second to last witness, Steven Livie, and taken down by the same officer when this witness went to the station with his father. It read as follows: at the time of the incident, he saw standing near ALBERT'S on VICTORIA. He was (saw) everything, that has happened to M. DUMONT ... informations that, we already have in our possession, but, he remembers this; Suspect; about 50 years old. bald head, with grey hair on the side. 5'7" ... fat. bad temper, saliva at the mouth. wears glass ... ordinary. spoke in English. hit Mr DUMONT with his left hand. was driving a Buick? 62 or 63 or 64? light green. The investigations of the St. Lambert police proved to be fruitless. Their only suspect cleared himself easily. On August 19, Cpl. Yves Lefebvre and Cpl. Camil DeGrâce of the Provincial Police Force began a new investigation. They went to examine the St. Lambert police's file and obtained a copy of its report. However, on September 16 DeGrâce, who denied having ever seen young Livie's statements, prepared a report in which one reads: [TRANSLATION] Through radio and television the St. Lambert police were able to find four (4) eyewitnesses of this incident, namely: 1. Mr. and Mrs. Lloyd HOLLAND; 2. René FORGET; 3. Mr. A. C. LEMAÎTRE. It will be seen that in compiling this list of eyewitnesses located by the St. Lambert police, the Quebec Police Force eliminated the last two and reduced the number to four. The St. Lambert report dated July 18 was, however, the first annex to the document. Following the paragraph I have just quoted the DeGrâce report contains the statements obtained by the Quebec Police Force from most of the known witnesses. In this case these are documents signed by the witnesses. First there is the new version given by Mrs. Holland, her husband having returned to Nassau. Here is her description of the assailant: [TRANSLATION] This is how I would describe the individual: size, medium; height, 5'8"; shoulders, broad; age, 50-55 years; weight, slightly fat, about 180 to 200 pounds; hair, black, somewhat greying, combed to the back and flat; not much hair, balding, very balding; dress, white short-sleeved shirt, open-necked; dark trousers, brown or grey ... I do not know whether he had a moustache or glasses. He looked clean. Oval face. The assailant had a familiar face, but I certainly did not know him. He is the type of man you showed me in photograph No. 7955. (Photograph No. 7955 seems to be that of the St. Lambert police's suspect. We shall see later what René Forget had to say about it.) After this the report contains the statement given by Mr. and Mrs. Holland to the St. Lambert police and that police's information regarding their suspect. There follows the statement obtained by the Quebec Police Force from the witness Lemaître. The description he gives of the assailant reads as follows: DESCRIPTION: Weight: 165, 170 lbs, 5'7" Face: round—Hair: Close cut, Grey—Age 50—Physically good shape, Had a pipe straight, had it when he drove away—Moustache ??? Glasses ??? This witness had also given the St. Lambert police a signed statement; all it contained by way of description of the assailant reads as follows: ... An elderly short thickset man in a short sleeved tee shirt and smoking a pipe, .. . We now come to René Forget's statement taken on August 19 by officers Lefebvre and DeGrâce. After relating the facts, he says: [TRANSLATION] I did not know this individual but I may have seen him before. I did not know the victim either. When the individual in the yellow car went by, turning onto Elm Street near the park where I was, he was about fifteen feet away; a Mr. Turgeon was with me then, so the individual looked at me as he was turning; he wore glasses, I don't know what kind; he didn't seem to be in too much of a hurry; I think he had a small square-cut moustache like Hitler's. The man in the photograph 7955 you are showing me is definitely not the right type. I don't know him either. However, I think that the photograph I helped your artist make was the best likeness, This is the best description I can give you: hair, brown (but not sure); weight, 170 lbs.; age, 50; height, 5'8". White short-sleeved shirt; trousers, I didn't notice. He had a rather round face and was tanned. I did not notice a pipe, I think I could identify him if I saw him. In the statement he had given the St. Lambert police the only description he gave of the assailant was: [TRANSLATION] The man is six feet tall and wears a moustache. Finally, DeGrâce's report contains the statement given to him by Ernest Turgeon. After relating the facts the latter said: [TRANSLATION] ... He did not have a pipe; I don't know* if he was wearing glasses. It was a face I had seen before but couldn't place. Description: fairly round face that was very red from the blood rushing to his face, with deep-set eyes. Weight 170-160, age 50 or 60. Grey hair, not much on his head. Dress, I don't remember. The car was very clean and the licence contained the letter H. The licence plate was clean. I couldn't say what the make or colour of the first car was. I think I would be able to identify this man if I ever saw him again. (*In the appeal case the French reads "vois", which does not make sense; in the handwritten original, which is somewhat difficult to read, the word is in fact "sais".) As for young Steven Livie, he is completely overlooked in the DeGrâce report—not a word is said about him. His name and his statement were contained in the St. Lambert file, and he was brought to the provincial police headquarters on August 19 when a composite sketch was being prepared. There is no indication why he was not questioned. We have little information on the preparation of the composite sketch since the defence did not call as a witness the artist who prepared it. It seems that the boy Steven Livie was the last witness to see the artist since he only saw the last composite drawing prepared, whereas the witness Forget certainly saw two drawings. Lefebvre and DeGrâce were on the premises since they witnessed the signing of the statement they took from Forget, after the latter had been interviewed by the artist. It must have been essentially on the basis of this witness's indications that the artist prepared the last composite sketch, the one that was used to find the suspect because the artist mistakenly added the small moustache which Forget alone had described. The composite sketch with which Cpl. Lefebvre then undertook to locate the assailant, and which was to lead him to appellant, contained one major defect: it did not take into account a distinctive feature mentioned by four of the eyewitnesses [sic], namely a bald head or forehead. The witnesses whom Cpl. Lefebvre considered to have been in the best position to identify the assailant, Mr. an Mrs. Holland, had both mentioned it in their first version, which is essentially that of the husband, and where we read: [TRANSLATION] Greying hair ... very thin hair. (cheveux très mince (sic)) Obviously this Anglophone used in French the words "cheveux très minces" to translate "very thin hair". His wife, who is Francophone, later said, in popular Quebec French: [TRANSLATION] Black hair, somewhat greying ... balding, very balding (calé, très calé). The Dictionnaire de la langue française au Canada, published by Bélisle, defines "caler" as [TRANSLATION] "to lose one's hair, to go bald". The witness Turgeon said: [TRANSLATION] Grey hair, not much on his head. Steven Livie said: Bald head, with grey hair on the side. Lemaître said: Hair, close cut, gray. René Forget was not sure. The pronounced baldness was thus noticed by four witnesses. Why was it not taken into account? The grey hair on the side of the assailant's head observed by five of the six eyewitnesses will later play a major role in the identification, but since the composite sketch shows a full-face view of the man being sought, it does not play any part in that. The very opposite is true of the bald forehead. It is because this feature was not taken into account that the composite sketch led the Quebec Police Force to appellant. One of the exhibits in the record is a page from a newspaper at the top of which appears a photograph of appellant besides that of Wilfrid Dumont's assailant. What strikes one immediately is the contrast between the bald head of the real culprit and the fine head of hair on appellant. When one looks at the composite sketch (Exhibit P-11) one cannot fail to be struck by the resemblance to appellant owing to the hair on the forehead. In view of certain statements the victim made to his son after the incident, officer Lefebvre had reason to believe that the assailant was a golfer. He therefore went to see an employee of a golf club, to whom he showed the composite sketch. The latter gave him appellant's name, and he thought he had the culprit. On September 1 the Quebec Police Force obtained from the Coroner a warrant for the arrest of appellant as a witness under s. 38 of the Coroners' Act (R.S.Q. 1964, c. 29): 38. Previous to or during the inquest, the coroner shall have full power to order the detention, with or without a warrant, of any person or witness whom he may deem necessary, and who, in his opinion, may fail or refuse to be present at the inquest. He may require such person or witness to furnish sufficient bail to ensure his being present at the inquest. On September 2, at 9 o'clock, officers Lawton and DeGrâce asked appellant to go with them to provincial police headquarters. When questioned about his movements on July 11, he did not take the matter seriously at first. He was right in thinking there had been a mistake, but was wrong in assuming that the police would realize it. He made the error of thinking of the wrong week and said he had been in Poland Springs that day. A check revealed immediately that it was on the preceding Sunday that he had been in Poland Springs. Right up to the argument in this Court this mistake, understandable as it was, was relied on as an element of justification for having refused to credit appellant's denials. Anyone should be well aware how easy it is to make an honest error in a date. Did not DeGrâce have to admit at the trial that he had made one in a report where he gave August 10 instead of September 10, as the date of an interview with a witness? At 11 o'clock, the Quebec Police Force began treating appellant no longer as a person submitting to questioning voluntarily, but as a suspect, as an accused person, under arrest. All his personal effects, even his belt, were taken from him and he was handcuffed and placed in a cell after being refused permission to talk to a lawyer or anyone else. It was not until 6 o'clock that he was allowed to telephone his wife to obtain more specific information on his activities of July Il, since she keeps a diary. She rushed to bring it to police headquarters because she was led to believe that she would be able to see her husband. This was refused, but the diary was taken. She was told that there was complete evidence against her husband, and here I must quote what she says Sgt. Wilmot told her: He did say that if Mr. Chartier would only admit it it could all be cleared up very quickly. An official line-up report shows that at 4 o'clock there was a line-up for viewing by the witness Lemaître. ln the list of persons lined up, No. 2 is described as follows: [TRANSLATION] 2.—Benny CHARTIER (45 years old)—suspect being held in a cell. The following is the account in the report of what the witness said: No. 2 looks like the man that I saw hit another man in St. Lambert on the 11th of July. His height and general description is the same excepted his bum or rear end is too big. It's certainly is not any of the other four. The voice I heard resemble that of No. 1. It will be noted that the response of the witness Lemaître is not an identification; it merely points out a resemblance while at the same time noting a dissimilarity. This line-up, like all the others conducted subsequently, took place in specially designed premises. The witnesses see the individuals lined up through a special glass which allows them to see those in the line-up without the latter being able to see or hear them. At twenty minutes to eight a second line-up was conducted where the witness was René Forget. The report signed by Sgt. Wilmot states as follows: [TRANSLATION] He states that none of these individuals can be Mr. DUMONT's assailant .. . The statement of this Iast witness is not a failure to identify, it exonerates appellant. Forget did not merely say that he could not identify any of the individuals in the line-up as Dumont's assailant; he stated positively that none of them could be the assailant. It was, as he said at the trial only, the fact that he knew appellant that enabled him to be so positive. Knowing him from before, he could be certain that he would have recognized him at the time of the incident if he had been the assailant. Despite this appellant was kept in a cell and questioned on several occasions specifically about his movements on July 11. He agreed to take a lie detector test. Sgt. Wilmot, who conducted the test, entered "guilty knowledge" as the conclusion. This conclusion appears absurd to me, but the Quebec Police Force saw it as some confirmation of its suspicions. The following day appellant finally signed a statement in which he erroneously said that after playing golf on July 11 he went home to change and then went back to pick his wife up at the golf club between five and five-thirty. At about three o'clock he was released on his word after a release order was obtained from the Coroner, in which the latter stated that he was now satisfied that [TRANSLATION] "appellant will be present when the Court has set a date for the inquest". On September 13, DeGrâce prepared a report in which he stated: [TRANSLATION] "The following are the reasons we have for believing that Mr. CHARTIER is our No. 1 suspect". As in the report of September 16, there is the statement: [TRANSLATION] "We have four eyewitnesses". Concerning the two identification sessions, DeGrâce wrote: [TRANSLATION] ... the witness LEMAÎTRE looked at the suspect for three (3) to four (4) minutes without looking at the other individuals and told us that there was a great resemblance, but he started to say to me in English: "I don't want to get involved", and he spoke of juries in Court ... Therefore the witness LEMAÎTRE did not wish to commit himself and be obliged to testify. The other witness FORGET was not able to identify the suspect, but we were expecting this. As to the witness Forget, a comparison with the official report shows how DeGrâce was distorting his statement before going on to say: [TRANSLATION] We had a photograph taken of the line-up and the only chance we have left is to try to have them identified by our two (2) best witnesses in Nassau, Mr. and Mrs. HOLLAND. Sgt. Wilmot therefore went to Nassau with photographs. Some were of line-ups, others were the kind used by the criminal identity service. He obtained a statement from Mr. Holland which reads in part as follows: After having examined the four group photographs, either individual No 2 or No 4 in photo no 3 resemble the man and from the 9 photographs of individual I picked two of the same man one without and one with glasses. I am reasonably sure and that if I saw this man again in person I would recognize him immediately, ... From Mrs. Holland Sgt. Wilmot obtained a statement in which she said: I Mrs Loyd George Holland, Nassau Bahamas, do solemnly declare that from the nine individual photos you show me there is just one photo that resembles the man that I saw hit the driver of the green Cadillac in St. Lambert on July 11th 1965 (Photo de B). Of the group photos that you show me there is just photo no 3 and individuals no 1 and no 2 that resemble the man that struck the other. If I was to see this man again in person I might be able to identify him. The Coroner's inquest was scheduled for October 21. The Hollands were brought back from Nassau. Cpl. Lefebvre prepared what he called a "brief" for the Crown Attorney. In it he gave the names of the six eyewitnesses, including Ernest Turgeon and Steven Livie. Concerning René Forget, all he said was: [TRANSLATION] Is apparently an eyewitness of the incident. However, the details he gave and the description of the individual's car do not coincide with those given by the other witnesses. He is thus a second-rate witness. It will be recalled that this witness knew appellant and stated on September 2 that the latter could not be the assailant. The other witness who knew appellant, although the Quebec Police Force did not yet know this, was Steven Livie. The "brief" contains the following concerning him: [TRANSLATION] Boy of 12, also an eyewitness; he was on Victoria Street on July 11, 1965 when he noticed two (2) parked cars and a man hitting another man who was seated in one car. He provided a description of both the car and the assailant. The inquest was to take place in the afternoon but appellant and all the eyewitnesses other than René Forget were summoned so that a line-up could be conducted. Much was made of the fact that when he saw appellant go by, Mr. Holland apparently said to the police: "Here's your man". This might have meant that here was the assailant, but in itself it merely signified that the man was their suspect. It must not be forgotten that one of them had gone to show him photographs of line-ups, indicating that they had already laid their hands on someone they wished to identify. In the official report of the line-up, Mr. Holland's statement reads as follows: ... "It is the 3rd man from the right, that's the man no 3, that I saw standing the side the Cadillac in St. Lambert the 11th of July 1965, I recognize him by his posture, build, facial features, stomach, etc. but the only thing that is different is that his hair was grey at the time at the incident." Mrs. Holland's statement: "The no 3 man strikes me has the man, he resembles the man that I saw strike the other on the 11th of July 1965, this my reaction from his height, build, etc. as far as I can remember." Steven Livie's statement: "I don't see the man there, the only one that 1 recognize is No. 3, Mr. CHARTIER who is friend of my father." A. C. Lemaître's statement: "Number 3 resembles the closest, it could be him but I cannot say positively." Ernest Turgeon's statement: [TRANSLATION] He cannot identify anyone. It will be seen that there was no identification The Hollands merely pointed out a resemblance but with one difference noted by the husband unlike the assailant in the incident, Chartier did not have grey hair. Given this, how was a verdict of criminal liability obtained against appellant? Here is how it happened. First of all, the witnesses who might have said that appellant could not have been the assailant were not called. Of the six eyewitnesses, only the Hollands were called upon to testify. Steven Livie's mother received a telephone call from Cpl. Lefebvre telling her that her son's presence would not be required. The Hollands refused to identify appellant before the Coroner. Mr. Holland said: I seen an identical man but the hair was not grey, that's why I don't swear that is the man. He added: The only doubt I have about the man I must explain that I am definite that the man had grey hair on the side of his head; I am definite about that; that man this morning did not have that; I pointed him out immediately and I think I said to the Officer: "Wait a minute, the chap should have grey hair" I think I made that point clear. His wife went further. When she was asked whether she had seen the assaillant since the incident, she said "no", even when she was reminded of the morning's identification session: Q. Have you since the incident had the occasion to see the man? A. No, sir. Q. That you saw that day fight with the man in the car? A. No, sir. Q. Never? A. No, sir. Q. Have you been called by the police in a line-up to identify that man? A. Yes. Q. When was it? A. This morning. Her last answer in examination-in-chief was: I am positive of that: he was a dark haired man going grey like a fifty year old man starting to get grey. No other witnesses were called to identify the suspect. How after this could the jury be persuaded to return a verdict of criminal liability against appellant? It is very simple. Camil DeGrâce and Frank Wilmot testified. The former said, in particular: [TRANSLATION] EXAMINED BY THE CORONER Q. Did you notice his physique, the colour of his hair, his complexion? A. He had greying hair. Q. And when was it that you saw this, the 11th or 12th? A. September 2. Q. September 2? A. Yes. EXAMINED BY MR. ANDRÉ CHALOUX: Q. Could he have had red or brown hair at that time? A. No, sir. Q. Are you positive of that? A. He had greying hair, fairly greying. EXAMINED BY THE CORONER: Q. Have you seen him since? A. I saw him here today. Q. Did you notice the colour of his hair? A. It is darker. After this Sgt. Frank Wilmot said in reply to questions by Mr. André Chaloux of the Crown Attorney's office: [TRANSLATION] Q. Now, to your knowledge, did you notice during the questioning whether this person whom you were questioning had red or black or whatever colour hair? A. It was certainly grey, rather like the colour ... not quite as white as that of Mr. Corriveau, somewhat blacker but ... I was very suprised [sic] today when I saw Mr. Chartier—he no longer has grey hair. Q. You noticed today that Mr. Chartier did not today have the same colour hair he had when you questioned him? A. Yes, that's right. The Coroner refused to hear witnesses appellant wished to call in his defence. These witnesses were people with whom appellant had played golf on the day of the incident and who were prepared to state that he had not left the course until 6:30. The police had had the opportunity of questioning them. Appellant then testified. He said, of course, that he had been in no way involved in the incident and stated that he had been at the golf course until about 6:30 on July 11. Suddenly he was questioned by one of the jurors as follows: JUROR NUMBER 1: Q. The day of the accident, July 11th, do you remember if you took any alcoholic beverages? A. I don't drink. Q. In the parade with the policeman; do you remember if you were identified? A. They told me every time that I was. Q. Have you changed the color of your hair recently? A. No, sir. Q. It's the same as it was then? A. Yes. BY THE ATTORNEY FOR THE CROWN: Q. Can you swear that Mr. Chartier? A. Yes. Q. Are you left handed or right handed? A. Right handed, I write with the right hand, I do everything with the right hand, I threw ball with my right hand .. . Q. Do you play golf with your right hand? A. Yes. Immediately following the verdict the Coroner issued a warrant for appellant's arrest, as provided under s. 462 of the Criminal Code. A charge of manslaughter was laid before a judge of the Sessions of the Peace. Appellant appeared and opted for a preliminary inquiry, which was scheduled for October 29. Having been granted bail he hastened to have his hair examined by an expert. The media gave the case a great deal of publicity. It was then that, learning by this means that an innocent person had been charged, someone who knew the identity of the real culprit gave this information to the St. Lambert Chief of Police. The latter was able to verify this information with other persons who had also remained silent up to that time. Promptly, on Monday morning, October 25, he informed the Quebec Police Force of the need to reopen the investigation. The day after the verdict, the Quebec Police Force requested an expert opinion to determine whether appelant had dyed hair, since otherwise it was obviously impossible for it to have ceased being grey at the temples between September 21 and October 21. Appellant immediately agreed willingly

Chartier v. Att. Gen. (Que.)

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Chartier v. Att. Gen. (Que.)

Court headnote

Full judgment (source text)

R v Brown

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R v Brown

R v Beaver

R v Sharma

R v Cody

Canada (Sécurité publique et Protection civile) c. Ewen

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Exam & revision prep