John v. R.

John v. R.
Collection
Supreme Court Judgments
Date
1970-12-21
Report
[1971] SCR 781
Judges
Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe; Laskin, Bora
On appeal from
Yukon
Subjects
Criminal law
Decision Content
Supreme Court of Canada
John v. R., [1971] S.C.R. 781
Date: 1970-12-21
Alec John Appellant;
and
Her Majesty The Queen Respondent.
1970: June 9; 1970: December 21.
Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR THE YUKON TERRITORY
Criminal law—Charge to jury—Circumstantial evidence—Erroneous example—Misdirection—Duty to relate evidence to issues—Test in Hodge’s case—Criminal Code, 1953-54 (Can.), c. 51, s. 207.
Criminal law—Evidence—Confession—Statement admitted without voir dire—Substantial wrong or miscarriage of justice—Criminal Code, 1953-54 (Can.), c. 51, s. 592(1)(b)(iii).
The appellant had been living with a girl. On August 22, he drove with his nephew to an Indian reservation and broke into a house in which the girl had stayed overnight. He then sent his nephew on an errand. When the latter returned, the appellant and the girl were no longer there. The girl was never seen alive again. Ten days later, the appellant told his nephew that “the girl was finished”, that “he did not know what he should do” and that he “did not know if he should turn himself in or not”. Two weeks after that, while the appellant was being held in custody for questioning concerning the girl’s whereabouts, he led three police officers to a place in the bushes where her dead body was found wrapped in a blanket inside a canvas covering and trussed up with a rope. The appellant was charged with manslaughter. The trial judge opened his instructions to the jury by stating that all the evidence was circumstantial; and, he gave them the following illustration of the difference between circumstantial and direct evidence: If a witness gives evidence that he saw A stab B with a knife, that is direct evidence that A stabbed B. If a witness gives evidence that he found a dagger with an unusually long blade in the possession of A and another witness testified that such a dagger could have caused B’s wounds, that is circumstantial evidence tending to prove that A did in fact stab B. The appellant was convicted and his appeal was dismissed by a majority judgment of the Court of Appeal for the Yukon Territory. The accused appealed to this Court. Held (Hall, Spence and Laskin JJ. dissenting): The appeal should be dismissed.
Per Fauteux C.J. and Abbott, Martland, Judson and Ritchie JJ.: Although the illustration was potentially misleading if it had stood alone, the fact that it was almost immediately followed by a correct statement of the effect to be given to circumstantial evidence, served to offset any wrong impression of the law which it might have left in the minds of the jurors. The language used in Hodge’s case does nothing more than provide a graphic illustration of the principle that where the evidence is purely circumstantial it must be made plain to the jury that in order to be satisfied of the guilt of the accused beyond a reasonable doubt, they must first be satisfied that the circumstances are such as to be inconsistent with any other rational conclusion than that the accused was the guilty person. If the jury is left in doubt as to whether or not the circumstances are equally consistent with some conclusion other than guilt, then it is their duty “to give the accused the benefit of the doubt and not to convict him on the circumstantial evidence standing alone”. When read as a whole the charge contains no errors in regard to circumstantial evidence which would warrant this Court in quashing the conviction and ordering a new trial.
There is no duty upon a trial judge when instructing a jury to relate each item of evidence to the issues in the case and to give the jury specific instructions as to whether it could or could not properly form the basis of an inference as to those issues. Nor is it necessary that each item of circumstantial evidence be subjected to the test in Hodge’s case.
The statement made by the appellant to the police that he had last seen the girl on August 25 was not objected to by counsel on his behalf on the ground that it was exculpatory. It was admissible not because it was exculpatory but because it was volunteered by the appellant. The question of whether a statement is inculpatory or exculpatory and whether or not it is voluntary are two different matters, and where it has been shown that a statement made to a person in authority was not voluntarily made, it is to be excluded whether it be exculpatory or inculpatory. The question of whether or not all of the statements made by the appellant to the police could be said to have been voluntary and therefore admissible without the holding of a voir dire, did not have to be decided because even if the appellant’s rambling account of his activities after August 22 should not have been admitted as it was, this would in no way affect the relevancy and admissibility of the all important evi- dence that he led the police officers to the place where the body of the girl was concealed. However, even if some error had been made by the trial judge, the circumstances were consistent with the appellant having unlawfully killed the girl and the facts were inconsistent with any other rational conclusion, so that a jury properly instructed would necessarily have returned a verdict of guilty. There was therefore no substantial wrong or miscarriage of justice.
Per Pigeon J.: The illustration of circumstantial evidence was erroneous in its entirety. This could not properly be said to be circumstantial evidence as it does no more than reveal a possibility, suggest a conjecture or at most raise a suspicion. The fact that this was presented only for the purpose of explaining the distinction between the two kinds of evidence does not mean that it was not in itself misleading. While it is literally true the jury must give an accused the benefit of the doubt if the evidence is equally consistent with the innocence of the accused as with his guilt, it is highly misleading because the obvious implication is that if the circumstantial evidence is more consistent with the guilt than with the innocence then they may convict. Circumstantial evidence requires facts from which guilt is the only rational inference and if innocence is an equally rational inference there is no proof of guilt at all. The rule on circumstantial evidence is nothing more than a formula to assist in applying the accepted standard of proof beyond a reasonable doubt to a criminal case resting upon such evidence. It is misleading to couple that rule with a statement that really implies a different and much lower standard. However, by giving clear instructions on the burden of proof and enumerating the elements of the offence, the trial judge has clearly dissipated any unfortunate implication as to the standard of proof. The illustration cannot possibly have misled the jury and, on the whole, this inaccuracy did not constitute misdirection. In any event, this is a proper case for applying the provisions of s. 592(1)(b)(iii) of the Criminal Code.
Per Hall J., dissenting: The charge on circumstantial evidence constituted misdirection, and were it not for the admission in evidence of statements made by the appellant without a voir dire, this would have been a proper case for applying the provisions of s. 592(1)(b)(iii) of the Code. However, a voir dire was not held despite the fact that one was asked for by the appellant’s counsel. That error was of such a consequence that the Court ought not to say that no substantial wrong or miscarriage of justice had occurred.
Per Spence J., dissenting: The misdirection constituted a fatal error in the charge. It was not cured by other statements in the charge in which the rule as to circumstantial evidence was stated correctly. The faults would have the effect of permitting the jury to apply to the assessment of the probative value of the circumstantial evidence a much less stringent test than that set out in Hodge’s case. The admission of the accused’s statement without any determination of its voluntary character in a proper voir dire resulted in there being placed before the jury inadmissible evidence of a most important and a most damaging character. The provisions of s. 592(1)(b)(iii) of the Code could not be applied. One cannot conclude that a jury properly charged on admissible evidence could not have done otherwise than convict the appellant.
Per Laskin J., dissenting: The question whether the charge taken as a whole was adequate notwithstanding the standing misdirection is quite separate from the issue of no substantial wrong or miscarriage of justice. If the misdirection is fatal to the conviction the least to which the accused is entitled is a new trial. The trial judge did not explain the meaning of circumstantial evidence except by reference to an illustration which was clearly unacceptable. This error could only have been regarded as immaterial if the trial judge had not been obliged in this case to do more than point out to the jury in general words the difference between direct and circumstantial evidence. The trial judge aggravated the deficiency by simply narrating what each witness had said, without relating the evidence to the issues in the case and without indicating to the jury the need to distinguish between those facts which were reasonably probative of the issues and those which could not be regarded as justifying inferences to that end. The generalities in the charge cannot serve as a cover for the inadequacies in this case because the medical evidence, taken alone, could not support a finding that the deceased came to her death as a result of the wrongful act of another person, because the statements of the appellant which were admitted without a voir dire involved a variety of admissions which, without proper direction, could mislead the jury into inferences of guilt and because the trial judge’s omission to mention, let alone relate to it, certain qualiflying evidence of the witness Kerry. The failure of the Crown to establish the voluntariness of the accused’s statements warrants the quashing of the conviction and a new trial. The defect in the charge goes beyond a mere mix-up of the principle of reasonable doubt with the rule of circumstantial evidence as the trial judge suggested a lower burden of proof upon the Crown than proof beyond a reasonable doubt. It would aid clarity in charging a jury if proof of issues by circumstantial evidence was dealt with in a way that would not suggest that there were possibly colliding or separate burdens of proof in a case involving such evidence. It is preferable, where all or part of the case against an accused is based on circumstantial evidence, to bring only the traditional burden of proof in relation to such evidence, but at the same time to emphasize the function of inference through which that evidence has vitality and show its bearing on the issues to which the evidence is addressed.
APPEAL from a judgment of the Court of Appeal for the Yukon Territory[1], affirming the appellant’s conviction for manslaughter. Appeal dismissed, Hall, Spence and Laskin JJ. dissenting.
Ralph Hudson and B.A. Crane, for the appellant.
John Scollin, Q.C., and Stephen Hardinge, for the respondent.
The judgment of Fauteux C.J. and of Abbott, Martland, Judson and Ritchie JJ. was delivered by
RITCHIE J.—This is an appeal from a judgment of the Court of Appeal for the Yukon Territory1 dismissing the appellant’s appeal from his conviction of manslaughter by the Honourable Mr. Justice Madison sitting with a jury at Whitehorse in the Yukon Territory, on May 16, 1969. The charge against the appellant is
THAT HE, between the 21st day of August, 1967, and the 7th day of September, 1967, in the Yukon Territory, did unlawfully kill Graffie George, thereby committing Manslaughter, contrary to Section 207 of the Criminal Code.
The evidence discloses that prior to August 21st, Graffie George had been living with the appellant for about eighteen months but on the afternoon of that day she was found to be hiding in the bushes near her sister’s house at an Indian reservation outside of Whitehorse; she was then “very dirty” and her sister took her into the house where she stayed over night. On the following evening (August 22nd) the sister went out to play bingo at Whitehorse at about 7 p.m., but Graffie George remained in the house because, as her sister says “she was scared to come with me.” Later that evening, while the sister was still out, the appellant and his nephew, Lester John, drove to the reserve and the appellant broke into her house leaving it, with Graffie George, through the window by which he had broken in. The appellant then sent Lester John on an errand and when he returned the appellant and Graffie George were no longer there.
There is no evidence that Graffie George was ever seen again alive, but on September 14th, after the police had started to investigate her disappearance and while the appellant was being held in custody for questioning concerning her whereabouts, he led three police officers to a place in the bushes off the Alaska Highway where Graffie George’s dead body was found wrapped in a blanket inside a canvas covering and trussed up with rope so that it “appeared to be in a foetal position with head down around the knees and the knees drawn up towards the head area and the rope went around the head area and down around the ankles.”
The canvas covering in which the body was found was identified as a tent which, with a mattress and two blankets, had been stolen from a campsite set up by two boys not far from a camp which had been occupied by the appellant. The blanket covering the body was identified as similar to one of the stolen blankets while the mattress was found at the appellant’s campsite.
Lester John testified that on September 1, 1967, ten days after the girl had last been seen, the appellant called at the house where he was staying and told him that “the girl was finished” that “he did not know what he should do” and that he “did not know if he should turn himself in or not.”
In conducting the autopsy on Graffie George’s body, Dr. D.F. Morrow, an experienced pathologist, found that the cause of death was a sub-dural haemorrage covering the left side of the brain which had been pushed downwards by the pressure of the haemorrage. He also found two bruises located on the chest wall over the ribs and in the abdomen two haemorrages in the liver approximately 2¼” to 2½” by ¾” which he thought to be related to the chest bruises. The doctor indicated that the injuries were caused by “a blunt type of force”, on cross-examination he agreed that the head injury was such as could be caused by “a person striking their head getting out of a car” and that the other injuries were possibly compatible with a person having fallen on a two-pronged object, but that they were also consistent with having been caused by blows from a fist.
There is no evidence as to how the dead girl’s body came to be trussed up in the fashion in which it was found, but it is self-evident that this was the deliberate work of some human agency, and the facts are that the appellant was the last person that any witness had seen in the dead girl’s company and that on the 14th of September he knew where the body was concealed in the woods.
I have not attempted to make an exhaustive review of the evidence, the greater part of which is discussed at length in the dissenting reasons for judgment of Mr. Justice Branca in the Court of Appeal, but the facts which I have recited are uncontradicted and in my opinion afford more than sufficient evidence upon which a properly instructed jury could have convicted the appellant of manslaughter. The question on his appeal, however, is whether there was such misdirection in the charge of the learned trial judge as to justify this Court in ordering a new trial.
In the course of his dissenting reasons for judgment, Mr. Justice Branca found that the learned trial judge had misdirected the jury in a number of respects, but I think it fair to say that his main objections were related to the instructions given to the jury as to the nature of circumstantial evidence and the effect to be given to it. It is not disputed that the evidence was entirely circumstantial and in this regard the trial judge opened his direction to the jury by furnishing them with an example of the difference between direct and circumstantial evidence. This example was criticized by Mr. Justice Branca and is now said to have amounted to misdirection. In this regard the learned trial judge said:
All of the evidence that has been given in this trial is what is known as circumstantial evidence. To refresh your memory as to the difference between circumstantial evidence and what is known as direct evidence I will give you an illustration. If a witness gives evidence that he saw A stab B with a knife, that is direct evidence that A stabbed B. If a witness gives evidence that he found a dagger with an unusually long blade in the possession of A and another witness testified that such a dagger could have caused B’s wound, that is circumstantial evidence tending to prove that A did in fact stab B.
The two forms of evidence are equally admissible but the superiority of direct evidence is that it contains only one source of error, namely the unreliability of human testimony, where circumstantial evidence in addition to the unreliability of human testimony suffers from the difficulty of drawing a correct inference from the circumstantial evidence.
As the trial judge said, the above illustration was designed exclusively for the purpose of refreshing the memory of the jury as to the difference between direct and circumstantial evidence and although it was so unhappily phrased as to have been potentially misleading if it had stood alone, I think the fact that, as will hereafter appear, it was; almost immediately followed by a correct statement of the effect to be given to circumstantial evidence, served to offset any wrong impression of the law which it might have left in the minds of the jurors.
It seems to me that the only valid criticism of this illustration must relate to the final words “tending to prove that A did in fact stab B”. There can be no doubt that it was correct to say “If a witness gives evidence that he saw A stab B with a knife, that is direct evidence that A stabbed B”, and I think it was also correct to say that “If a witness gives evidence that he found a dagger with an unusually long blade in the possession of A and another witness testified that such a dagger could have caused B’s wound, that is circumstantial evidence”, but standing alone it is not evidence “that A did in fact stab B” although, taken in conjunction with evidence of other facts, it might afford a link in a chain of circumstantial evidence so that when the whole was taken together a jury might be justified in reaching the conclusion that the circumstances were consistent only with guilt and inconsistent with any other rational conclusion. Having stated correctly that it was circumstantial evidence, it will be observed that the trial judge proceeded to point out that while the value of direct evidence is dependant upon the reliability of human testimony, the value of circumstantial evidence suffers also “from the difficulty of drawing a correct inference” from the testimony as to the existence of the circumstances, and he went on to state correctly the rule which has been established for the evaluation of such evidence, saying:
It is therefore my duty to urge you not to find the accused guilty on circumstantial evidence alone, unless you are satisfied, not only that the circumstantial evidence is consistent with the conclusion that the accused committed the offence with which he is charged, but also that the facts which have been proved are such as to be inconsistent with any other rational conclusion than that the accused is guilty of the offence with which he is charged.
There can be no exception taken to this part of the charge as it is phrased in very much the same language as that employed by Baron Alderson in Hodge’s case[2], which was approved and adopted in this Court in R. v. Comba[3].
It is contended, however, that the next paragraph of the charge constituted misdirection and indeed in the opinion of Mr. Justice Branca, it was “completely erroneous”. This paragraph reads as follows:
If you come to the conclusion that the evidence is equally consistent with the innocence of the accused as with the guilt of the accused, then it is your duty to give the accused the benefit of the doubt and not convict him on circumstantial evidence standing alone.
Mr. Justice Branca expressed his opinion of this direction in the following language:
The direction, in my humble judgment, should have been that if the jury found the evidence consistent with guilt but likewise consistent with a rational hypothesis of innocence the jury should acquit the appellant, not on the basis of giving the appellant the benefit of a reasonable doubt, but because the evidence did not satisfy the test laid down in the Hodge’s case. It was only if the evidence satisfied the test in Hodge’s case that the jury would have to consider the doctrine of reasonable doubt and then only if upon the whole of the evidence they entertained a reasonable doubt as to the guilt of the accused.
I think that these observations of the learned judge must be read in light of the following statement made on behalf of this Court in McLean v. The King[4], where it is said:
The respect in which the learned judge’s charge is said to be insufficient as a proper direction to the jury is that he did not instruct them that, in so far as they relied upon circumstantial evidence in the case before them, they must be satisfied not only that the circumstances proved were all consistent with the guilt of the accused, but also that they were inconsistent with any other rational conclusion. This is the rule laid down by Baron Alderson as far back as the Hodge case, and it has ever since been recognized as a proper direction to jurors.
It is of last importance, we do not doubt, where the evidence adduced by the Crown is solely or mainly of what is commonly described as circumstantial, that the jury should be brought to realize that they ought not to find a verdict against the accused unless convinced beyond a reasonable doubt that the guilt of the accused is the only reasonable explanation of the facts established by the evidence. But there is no single exclusive formula which it is the duty of the trial judge to employ. As a rule he would be well advised to adopt the language of Baron Alderson or its equivalent.
More recently, in The Queen v. Mitchell[5], which was a case of capital murder, where Mr. Justice Spence was dealing with the effect of the rule in Hodge’s case in relation to proof of planning and deliberation, he had occasion to say, at page 479:
The direction in Hodge’s case did not add to or subtract from the requirement that proof of guilt in a criminal case must be beyond a reasonable doubt. It provided a formula to assist in applying the accepted standard of proof in relation to the first only of the two essential elements in a crime; i.e., the commission of the act as distinct from the intent which accompanied that act. The first element, assuming every circumstance could be established by evidence, would be capable of proof to a demonstration. The latter element, save perhaps out of the mouth of the accused himself, could never be so proved. The circumstances which establish the former not only can be, but must be consistent with each other, as otherwise a reasonable doubt on the issue arises.
With the greatest respect for the views expressed by Mr. Justice Branca, I think that his criticism of the last of the above-quoted paragraphs of the charge of the learned trial judge is founded on too rigid an adherence to the letter of the charge given by Baron Alderson to the jury in Hodge’s case which resulted in his treating the words of that charge as if they embodied a principle which was quite distinct from the question of reasonable doubt. It appears to me on the contrary that, on analysis, the language used in Hodge’s case does nothing more than provide a graphic illustration of the principle that where the evidence is purely circumstantial it must be made plain to the jury that in order to be satisfied of the guilt of the ac- cused beyond a reasonable doubt, they must first be satisfied that the circumstances are such as to be inconsistent with any other rational conclusion than that the accused was the guilty person.
If the jury is left in doubt as to whether or not the circumstances are equally consistent with some conclusion other than guilt, then it is their duty “to give the accused the benefit of the doubt and not to convict him on (the) circumstantial evidence standing alone”. I do not think that the learned judge was saying any more than this and I am satisfied that there was no misdirection in this passage.
I think it pertinent to observe also that much later in his charge to the jury, in discussing the theory of the defence in detail, the learned trial judge said:
The defence also relies heavily on the rule on circumstantial evidence. The defence says that there are many conclusions they may come to by making inferences from the evidence that are equally consistent with the innocence of the accused as with the guilt of the accused and if you apply these doctrines—these three doctrines, presumption of innocence, reasonable doubt and the rule of circumstantial evidence—you can only arrive at a verdict of acquittal.
While I do not consider that the charge to the jury in this case afforded a model of the way in which juries should be instructed with respect to circumstantial evidence, I am nevertheless satisfied that when read as a whole it contains no errors in this regard which would warrant this Court in quashing the conviction and ordering a new trial.
Further objection is taken to the charge of the learned trial judge to the jury on the ground that after he had directed them as to the law and recited the theory of the Crown and that of the defence, he proceeded to review the evidence of each of the witnesses without relating each item of evidence to the issues in the case and giving the jury specific instructions as to whether it could or could not properly form the basis of an inference as to those issues.
I do not think that any such duty lies upon a judge when instructing a jury, but I find it unnecessary to trace the details of the learned trial judge’s charge in this regard because I do not question the accuracy of the comment made by Chief Justice Davey in the last two paragraphs of his reasons for judgment where he said:
After explaining to the jury in the light of the evidence the case for the Crown and the weaknesses in it alleged by the defence, and the defence’s case the learned trial Judge proceeded to give to the jury a summary of the evidence witness by witness, instead of analysing it and relating it to the cases of Crown and defence.
For myself, when I was on the trial bench, I preferred the latter method when it was suitable, but there have been many eminent Judges who preferred the former. I think it must be left to each trial Judge to use the method that he considers best suited to the case then before him, provided his charge meets the requirements laid down by the authorities. In my respectful opinion the present charge did.
It was suggested in argument that each item of circumstantial evidence should be subjected to the test in Hodge’s case and I think in this regard that it is well to bear in mind the language used in this Court by Taschereau J. in Côté v. The King[6], where he said:
It may be, and such is very often the case, that the facts proven by the Crown, examined separately have not a very strong probative value; but all the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that may constitute a proper basis for a conviction.
Counsel on behalf of the appellant contended also that the conviction should be quashed on the ground that a statement made by the appellant to the police on the 7th of September was admitted in evidence without a voir dire having first been conducted. The statement was made at 2 o’clock on the afternoon of the day on which the appellant had been taken into custody for interrogation, no charge had been laid against him and the police were simply seeking to determine the whereabouts of Graffie George. The statement which was finally admitted purported to be an account of the appellant’s activities during the summer of 1967 and particularly after the 22nd of August, and in the course of it he stated that he had last seen Graffie George on the 25th of August. This statement was made after careful warning had been given to the accused by the police officers concerned and it was treated by the trial judge as being exculpatory in character, but it has been suggested that because no voir dire was held to determine the voluntary character of the statement, it should not have been admitted on the ground that the circumstances are governed by the recent decision of this Court in Piché v. The Queen[7], where the trial judge, after conducting a lengthy voir dire, ruled that a statement made by the accused was inadmissible on the ground that it had not been made voluntarily and it was contended that the statement should have been admitted on the ground that it was exculpatory.
The most significant part of the statement made on the 7th of September was that the accused had last seen Graffie George on the 25th of August, but this information had already been given to Constable Pelletier on the 5th of September when he was on patrol in the neighborhood of Haines Junction and encountered the accused with his brother and sister-in-law. In this regard the Constable gave the following evidence:
Q. Without referring to the text of the conversation you had with any of these people and particularly any conversation you might have had with the accused Alec John, will you tell the court of the encounter with these people—what happened?
A. We stopped and talked with these three individuals.
Q. What about?
A. We talked in generalities, to begin with, then I asked Alec John where Graffie George might be.
Q. And did he reply? A. He did, sir.
The answer given by the accused to this question was that the last time he had seen Graffie George was on the 25th of August and counsel for the appellant expressly stated that he had no objection to the admissibility of this statement on the ground that it was exculpatory. In my view, this statement was admissible not because it was exculpatory, but because it was volunteered by the appellant, and I can see no objection to the admissibility of the evidence to the effect that the appellant repeated it to the police on the 7th of September under the circumstances above described.
In the concluding paragraph of the reasons for judgment delivered by Mr. Justice Hall on behalf of the majority of this Court in the Piché case (page 40) he summarized the effect of that decision by saying:
On the basis that there is no distinction to be drawn between inculpatory and exculpatory statements as such in so far as their admissibility in evidence when tendered by the Crown is concerned, I would allow the appeal and restore the verdict of acquittal rendered by the jury.
The question of whether a statement is inculpatory or exculpatory and whether or not it is voluntary, are two entirely different matters and it is made plain in the Piché case that where it has been shown that a statement made by an accused to a person in authority was not voluntarily made, it is to be excluded whether it be exculpatory or inculpatory.
The question of whether or not all the statements made to the police on and after September 7th can be said to have been voluntary and therefore admissible without the holding of a voir dire, in my opinion does not have to be decided in the present case because even if the appellant’s rambling account of his activities after August 22nd should not have been admitted as it was, this would in no way affect the relevancy and admissibility of the all important evidence that he led the police officers to the place where the body of Graffie George was concealed. This circumstance places this case in the same category as that of The Queen v. Wray[8], which was also recently decided in this Court. In that case the location of the murder weapon was pointed out to the police by the accused and, following the judgment of McRuer C.J. in Rex v. St. Lawrence[9], it was held that although a confession made by the respondent was legally inadmissible because it was not voluntary, nevertheless the Crown was entitled to prove not only the finding of the murder weapon, but also the fact that its location had been pointed out to the police by the accused and so much of the confession as was verified by the fact of the finding was held to be admissible.
In the concluding paragraph of his reasons for judgment in the Wray case, Mr. Justice Martland, speaking for the majority of the Court at page 19, said:
…on the issue of the admissibility of the evidence sought to be introduced by the Crown in this case, notwithstanding the exclusion of the confession, the law in Canada is correctly stated by McRuer C.J.H.C. in The King v. St. Lawrence, at page 391:
Where the discovery of the fact confirms the confession—that is, where the confession must be taken to be true by reason of the discovery of the fact—then that part of the confession that is confirmed by the discovery of the fact is admissible, but further than that no part of the confession is admissible.
Accordingly, I am of the opinion that the learned trial judge erred in law in excluding evidence as to the facts leading up to the finding of the rifle, and in excluding such parts of the confession as were confirmed as true by the discovery of such facts.
In the present case the appellant did not lead the police officer to the place where the body was concealed until he had been in custody for seven days during which time he had been subjected to constant questioning, but, as I have indicated, I have no doubt that the evidence of the body having been found under those circumstances was both relevant and admissible, and when this evidence is considered in conjunction with the statement made by the appellant to his nephew on September 1st that he “did not know if he should turn himself in or not”, then, as I have indicated, I think it becomes unnecessary to pursue any further the question of whether or not the statements made by the appellant to the police on or after September 7th should not have been admitted without the holding of a voir dire.
It will be seen that I am in general agreement with the reasons for judgment of Chief Justice Davey in the Court of Appeal, but I would add that even if this were not so and I considered that some error had been made by the learned trial judge, I am of opinion that the circumstances were consistent with the appellant having unlawfully killed Graffie George and that the facts are inconsistent with any other rational conclusion, so that a reasonable jury properly instructed would necessarily have returned a verdict of guilty and I would therefore have applied the provisions of s. 592(1)(b) (iii) of the Criminal Code.
For all these reasons I would dismiss this appeal.
HALL J. (dissenting)—I agree with my brothers Spence, Pigeon and Laskin that the five paragraphs referred to in their reasons constitute misdirection, and were it not for the admission in evidence of statements made by appellant on September 7th and September 14th to Staff Sergeant Dwernichuk without a voir dire having been held, I would agree with my brother Pigeon that this was a proper case for applying the provisions of s. 592(1)(b)(iii) of the Criminal Code.
However, I cannot ignore that a voir dire was not held, and this despite that one was asked for by appellant’s counsel. The record is clear in this regard.
The statements made by appellant to Dwernichuk cover two interviews. The first was on September 7th, the day he was arrested, when notes were made by Dwernichuk of what appellant said. The second was on September 14th during which the notes made by Dwernichuk on September 7th were produced, discussed with appellant, handed to him and, according to Dwernichuk, torn up by appellant as being untrue and following which appellant eventually led the police officers to the place where the body of the deceased, wrapped in a blanket, was found hidden underneath a willow windfall. She had been dead some time as the body was in an advanced state of decomposition.
I do not suggest that the evidence of the finding of the body in the place pointed out to the police officers by appellant or of appellant’s movements leading up to the finding of the body were not admissible, but as was held in The Queen v. Wray[10], that does not involve admitting the whole of the confession but only those parts leading up to the finding of the body unless the confession as a whole has been ruled to be voluntary. In the present case, extracts of what appellant said on September 7th and the whole of the interview of September 14th were admitted and in both cases without a voir dire to determine whether either or both statements were made voluntarily. It is true that Staff Sergeant Dwernichuk said that he warned the accused, but that evidence was given in the presence of the jury.
Piché v. The Queen[11], referred to by my brother Ritchie, decided that “exculpatory statements made to a person in authority by an accused shall be subject on a voir dire to the same requirements as inculpatory statements…”. Piché is not authority for the proposition that the question of whether a statement being tendered in evidence by the Crown was or was not voluntary can be decided in the presence of the jury. That situation did not arise in Piché. The only way a trial judge, trying an accused with a jury, can determine whether or not any statement given by the accused to a person in authority being tendered by the Crown is voluntary or involuntary is by holding a voir dire in the absence of a jury. That was not done here and, in my view, it is an error of such consequence that this Court ought not to say that no substantial wrong or miscarriage of justice has occurred.
I would, accordingly, set aside the conviction and direct a new trial.
SPENCE J. (dissenting)—I have had the opportunity of reading the reasons of my brethren Ritchie, Pigeon and Laskin JJ., however, I feel I must deliver short additional reasons. I shall not repeat the outline of the facts except in so far as they are relevant to these reasons.
I concur with the view of Pigeon and Laskin JJ. that the five paragraphs in the charge of the trial judge to the jury recited in the reasons of Laskin J. do constitute a misdirection. I cannot, however, agree with Ritchie and Pigeon JJ. that this misdirection did not constitute a fatal error in the charge or that it was cured by other statements in the charge of the learned trial judge in which the rule as to circumstantial evidence was stated correctly. On the other hand, I concur with Laskin J. that the faults pointed out would have the effect of permitting the jury to apply to the asses