Morris v. The Queen

Morris v. The Queen
Collection
Supreme Court Judgments
Date
1978-10-03
Report
[1979] 1 SCR 405
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
Criminal law
Decision Content
Supreme Court of Canada
Morris v. The Queen, [1979] 1 S.C.R. 405
Date: 1978-10-03
Phillip Morris Appellant;
and
Her Majesty The Queen Respondent.
1978: January 31; 1978: October 3.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Criminal law—Evidence—Cross-examining on previous convictions—Admissions by witness—Leave to question the accused on his record as a juvenile delinquent—Judge’s charge to jury—Criminal Code, R.S.C. 1970, c. 34, ss. 306, 593, 609—Canada Evidence Act, R.S.C. 1970, c. E-10, s. 12—Juvenile Delinquents Act, R.S.C. 1970, c. J-3, ss. 3, 20(1), 26, 38.
Appellant, aged 19, was found guilty by the Court of Queen’s Bench, Criminal Side, for the district of Montreal, consisting of a judge and jury, on a charge of breaking and entering with intent (s. 306 Cr.C.). He appealed to the Court of Appeal on the ground that the trial judge erred by allowing evidence of the cross-examination of appellant, in which he contradicted the evidence he had given in chief and admitted having been found guilty, under the Juvenile Delinquents Act, of offences, under the Criminal Code. The Court of Appeal affirmed the conviction; hence the appeal to this Court.
Held (Laskin C.J. and Spence, Dickson and Estey JJ. dissenting): The appeal should be dismissed.
Per Martland, Ritchie, Pigeon, Beetz and Pratte JJ.: Under s. 12 of the Canada Evidence Act and s. 593 Cr.C., the trial judge properly allowed in evidence the cross‑examination of the appellant upon his record as a juvenile delinquent. The word “offence” as used in s. 12(1) of the Canada Evidence Act includes a delinquency consisting in a violation of the Criminal Code which is enforceable under the Juvenile Delinquents Act, and a finding of delinquency under this Act is equivalent to a conviction within the meaning of s. 12 of the Canada Evidence Act. The right to cross-examine a witness with the view of establishing the falsity of the evidence-in-chief should not be less absolute in the case of a former juvenile delinquent than in other cases. The admissions of the appellant during his cross-examination constitute sufficient proof of the delinquencies of which he was found guilty under the Juvenile Delinquents Act, with- out it being necessary to produce the official record. Moreover, nothing in the pre‑sentencing report furnished to the trial judge indicated that these admissions were erroneous; this report in fact related to the penalties imposed on the appellant rather than to the findings of guilty made against him.
Further, so far as s. 593 Cr.C. is concerned, the appellant put his character in issue when he stated that he had never been convicted nor arrested; it was open to the Crown to contradict this proof of good character by proof of prior convictions.
So far as the judge’s charge to the jury is concerned, even if the judge erred in stating that the appellant lied when he denied any previous arrest, this error, in the circumstances of the case, had no influence on the jury’s decision not to believe the appellant.
Per Laskin C.J. and Spence, Dickson and Estey JJ., dissenting: By telling the jury that the accused had lied when he stated that he had never been arrested, the trial judge committed an error justifying a new trial. The record contained no evidence of an arrest. Even if it was concluded that the appellant had committed delinquencies as a juvenile delinquent, the Juvenile Delinquents Act does not allow such findings to be treated as convictions that can be proved in evidence under s. 593 Cr.C. A finding of juvenile delinquency under the Juvenile Delinquents Act is not equivalent to a conviction under the Criminal Code.
[R. v. Lalonde (1950), 11 C.R. 71, referred to; Jones v. Director of Public Prosecutions, [1962] A.C. 635, followed; Koufis v. The King, [1941] S.C.R. 481 followed; Attorney general of British Columbia v. Smith, [1967] S.C.R. 702, [1969] I.C.C.C. 244; R. v. Horsburgh, [1966] 1 O.R. 739; Krassman v. The Queen (1972), 8 C.C.C. (2d) 45; Adelphi Book Store Limited v. The Queen (1972), 8 C.C.C. (2d) 49; R. v. Grant (1936), 100 J.P. 324; R. v. Blaby, [1894] 2 Q.B. 170; R. v. Manchester Justices, [1937] 2 K.B. 96; Smith v. The Queen, [1959] S.C.R. 638 reversing (1958), 121 C.C.C. 103 (sub nom. R. v. Gerald X.); Tarlo’s Estate (1934), 172 A. 139, 315 Pa. 321; Blaufus v. People (1877), 69 N.Y. 107, 25 Am. Rep. 148; Ward v. Sinfield (1880), 49 L.J.Q.B. 696; Stirland v. Director of Public Prosecutions, [1944] A.C. 315; R. v. Davison et al. (1974), 20 C.C.C. (2d) 424; R. v. McLean (1940), 73 C.C.C. 310; R. v. Sweet-Escott (1971), 55 C.A.R. 316; R. v. Baker (1912), 7 C.A.R. 252; R. v. Samuel (1956), 40 C.A.R. 8; R. v. St. Pierre (1974), 17 C.C.C. (2d) 489; R. v. MacDonald (1974), 27 C.R.N.S. 212; R. v. Triganzie (1888), 15 O.R. 294, referred to.]
APPEAL against a decision of the Court of Appeal of Quebec[1] affirming a guilty verdict handed down by a jury. Appeal dismissed, Laskin C.J. and Spence, Dickson and Estey JJ. dissenting.
Peter M. Gold, for the appellant.
Henry Keyserlingk, for the respondent.
The judgment of Chief Justice Laskin and Spence, Dickson and Estey JJ. was delivered by
SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal for the Province of Quebec pronounced on the 17th of March 1975 by which judgment the said Court of Appeal dismissed an appeal from the conviction of the appellant after the verdict of a jury on the charge that he did
TO WIT: Phillip MORRIS à MONTREAL district MONTREAL on or about June 10th 1973, did unlawfully break and enter a place other than a dwelling house, to wit: a building situated at 6665 Saint-Jacques West, the property of K-Tel International Ltd., with intent to commit an indictable offence therein, committing thereby an indictable offence, according to section 306-1-a-e of the Criminal Code, against the form of the Statute in such case made and provided and against the Peace of Our Sovereign Majesty the Queen, Elizabeth the Second, Her Crown and Dignity.
Dated August 7, 1973.
The appellant was actually apprehended as he climbed out of a window of the subject premises in an attempt to leave them. Section 306(2) of the Criminal Code provides:
(2) For the purposes of proceedings under this section, evidence that an accused
(a) broke and entered a place is, in the absence of any evidence to the contrary, proof that he broke and entered with intent to commit an indictable offence therein; or
(b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after
(i) committing an indictable offence therein, or
(ii) entering with intent to commit an indictable offence therein. Undoubtedly, in view of this provision and the above recited circumstance, counsel for the appellant called the appellant to give evidence. Normally, it would be expected that under such circumstances, the appellant would have very considerable difficulty in adducing evidence which would raise any reasonable doubt in the minds of the jury. There were, however, in the evidence adduced, a considerable number of facts which made it possible that the appellant’s excuse for entry into the premises, i.e., that he had merely been seeking shelter from a heavy rainstorm and had unwittingly locked himself in the premises, might raise a considerable doubt. Therefore, as the learned trial judge, Hugessen A.C.J., said, in his charge to the jury:
…but it’s going to come down to your assessment of the credibility of the accused.
The appellant was nineteen years of age at the date of the alleged offence and the time of the trial. So soon as counsel for the appellant called that appellant as a witness, the following questions and answers were put:
Q. Mr. Phillip Morris, have you ever been convicted of a criminal offense?
A. No. None whatsoever.
Q. Have you ever been arrested before?
A. No.
Q. This is the first time?
A. Yes.
Q. This incident?
A. Yes.
After the appellant had given evidence-in-chief, he was cross-examined and at a certain point counsel for the Crown interrupted his examination, requested that the jury be excused, and then applied for the right to cross-examine the appellant upon his alleged record as a juvenile. After considerable argument, the learned trial judge ruled:
…so I’m prepared to admit, Mr. Keyserlingk, the question, or a series of questions if necessary, with regard to any conviction of the accused of an offence described in the Juvenile Delinquents Act. You can call the Jury back.
The following cross-examination of the appellant then took place: Q. Mr. Morris, you’ve mentioned to the Members of the Jury that you had never been previously arrested or convicted of any offence whatsoever. Is that correct?
A. Yes.
Q. Is it not a fact that in nineteen sixty-three, before the Juvenile Court, you were charged with and found guilty of attempted theft?
A. I don’t remember.
Q. Is it not true that in nineteen sixty-nine you were charged again before the Juvenile Court, convicted of damages to third party’s property, causing damages?
A. I don’t remember exactly.
Q. O.K., do you remember if in nineteen seventy you were charged with and found guilty of theft and illegal possession, in nineteen seventy?
A. Yes.
Q. Do you remember if in nineteen seventy-two, before the Juvenile Court, that you were found guilty of breaking and entering?
A. Guilty.
Q. You were found guilty in nineteen seventy-two. Is that correct?
A. Yes.
Q. That would have been at the age of eighteen… seventeen?
A. Seventeen.
Upon the conclusion of the evidence, the learned trial judge charged the jury in what was, with respect, a remarkably correct yet brief charge referring to the question of the record in the following terms:
Now, just before terminating, I’d like to say one word about the accused’s record, which was brought up too. First of all, it seems quite clear to me that in his evidence in chief, the accused lied. When he started out, the very first thing he said was that he had never been convicted. He had never been arrested. You can draw what conclusions you like from that. You may choose to think that he was frightened, didn’t want to bring out before you the fact that he’d been in trouble with the police before, as a juvenile. You may choose to think that he felt that his record as a juvenile was not important or wasn’t covered by what was asked of him. You may also choose to think that even if he deliberately lied on that subject, that what he told you in the rest of his testimony was the truth. You’re the entire Judges of this. It would equally be within your realm, in your power, to come to the conclusion that having lied to you on this matter, which you may think is important, that the rest of his story is pretty doubtful. That’s your decision to make. The only thing I would ask you to do, and I’m sure that your common sense will tell you this, I would ask you to be very careful not to convict the accused simply because he’s been convicted before. Our whole system proceeds on the basis that a man pays his debt to society when he’s convicted, and when he comes back into society, that debt is paid and he’s not made to pay it twice or three times or four times. So you can take that record of his into account when you’re assessing his credibility, and you may feel it’s a great importance, but I would not want you to convict a man simply because he has previously been convicted.
The jury rendered a verdict of guilty and the learned trial judge, after hearing representations as to sentence, to which I shall refer hereafter, sentenced the appellant to three months’ suspended sentence to the 3rd of May 1974 and required him to report to a probation officer every two weeks together with other terms of probation.
The appellant appealed to the Court of Appeal for the Province of Quebec and his appeal was dismissed as I have outlined.
Leave to appeal to this Court was granted by the order of the Court pronounced on the 21st of June 1975. Although that order was general, the only issue argued before this Court was as to the propriety of permitting the cross-examination of the appellant upon his alleged record, as I have recited it aforesaid, and also the propriety of the learned trial judge’s charge to the jury upon that topic. I have come to the conclusion that the conviction cannot stand.
In the first place, it was said that the accused, the present appellant, lied when he swore that he had never been arrested. I have quoted the learned trial judge’s charge thereon and I emphasize again the words:
First of all, it seems quite clear to me that in his evidence in chief, the accused lied. When he started out, the very first thing he said was that he had never been convicted. He had never been arrested.
(The underlining is my own.) I deal first with the statement that the appellant lied when he said he had never been arrested. It will be seen that the appellant did state quite plainly in examination-in-chief that he had never been arrested. Then, in cross-examination by Crown counsel, the appellant affirmed that he had made that statement. In subsequent cross-examination, the accused appears to have admitted that he had been “convicted”, a subject on which I shall comment later, but he was never again asked if he had been arrested. So that at the close of the trial, the only evidence as to whether or not the accused had been arrested, as distinguished from convicted, was his own statement that he had not been arrested. There is nothing impossible in such a situation. The acts with which the appellant was charged (I am using the most indefinite word intentionally) were of a minor nature in the case of a juvenile and it is quite within the realm of possibility that he should have been summonsed to appear before the Juvenile Court judge, but not arrested, or even brought before the Juvenile Court by his father who seems to have been always present. Therefore, in so far as the learned trial judge expressed to the jury the opinion that the accused had lied when he said he had never been arrested, such charge was plainly incorrect. The only evidence before the court was his own, in chief, that he had not been so arrested. The matter is important because when the learned trial judge reported to the Court of Appeal dealing with his subsequent discovery of the facts in reference to the so-called record, he said:
If this fact had been made known to me while the case was still in the hands of the jury, I might have taken a different attitude although I do not think so. In my view the accused had opened the door to evidence of his bad character by attempting to lead evidence of good character and the jury were entitled to know that he had perjured himself in his evidence in chief when he stated that he had never been arrested.
Even if there had been no virtue in the balance of the argument to this Court by counsel for the appellant, I would have felt that this fault was sufficient to have required a new trial.
Secondly, even presuming that there had been no reference in either the examination-in-chief or the cross-examination, or in the charge to the jury, to arrest, I am of the opinion that the reference to the so-called “convictions” of the appellant, when he was a juvenile, was in error and was a fatal fault.
It is quite evident that when counsel for the Crown cross-examined the accused, the present appellant, he must have had before him a statement of the accused’s juvenile record. Such a document was not tendered to the court at that time because of the accused’s apparent agreement with the allegations made by Crown counsel that he had on various occasions been “convicted”. Upon sentence, however, counsel for the Crown produced a document which was marked as Ex. S-1, which purports to be a record signed by “A.M. Racine, Acting Clerk, Social Welfare Court” which reads as follows:
[TRANSLATION]
Montreal, January 30, 1974.
RE: Phillip Morris
Files
Offences
Judgments
2213/67
AUTOMOBILE THEFT & CONCEALMENT
15-5-67 Adjourned Sine Die
3471/67
THEFT & CONCEALMENT
8-5-67 Placement at Boys’ Farm & Training School 12-8-68 Placement of 8‑5‑67 cancelled
680/70
THEFT & CONCEALMENT
30-1-70 Case adjourned Sine Die
2839/72
BREAK. AND ENT. WITH INTENT
16-6-72 Sine Die
A.M. Racine Acting Clerk
AMR/jt
Social Welfare Court
It will be noted that as to the former offences set out on this so-called record, there are no convictions registered. In the first, third and fourth, the disposition would appear to be sine die adjournment, and in the second, the accused had been placed in a boys’ farm and training school on the 8th of May 1967 but on the 12th of August 1968 that placement had been cancelled. Again, there is nothing surprising as to this disposition. Section 16 of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, provides:
16. The court may postpone or adjourn the hearing of a charge of delinquency for such period or periods as the court may deem advisable, or may postpone or adjourn the hearing sine die.
Counsel were agreed that a sine die adjournment was a frequent method of disposition in the juvenile court. Despite this fact, counsel for the Crown, in his cross-examination, which I have quoted above, on several occasions, put to the accused the question “you were charged with and found guilty” and undoubtedly left the impression with everyone in the courtroom that he was having the accused admit the convictions.
The accused, the present appellant, was then nineteen years of age and there is no reason to believe that he was sufficiently versed in court procedure to know and appreciate that he had not been convicted but that the court had merely adjourned the disposition of the case to a day unstated. I do not think that one may rely on this ground of admission at all in the light of the statement in Ex. S-1 over the signature of the Clerk and I am of the opinion that that Ex. S-l was part of the record properly before the Court of Appeal and should have been considered on the appeal. For this reason alone, I would be of the opinion that the conviction could not stand.
It is the submission of counsel for the appellant that even if the appellant’s admission on cross-examination had been correct and that he had been found guilty of various acts of juvenile delinquency those facts could not be proved against him as convictions. The learned trial judge, in permitting the cross-examination, relied on s. 593 of the Criminal code which provides:
593. Where, at a trial, the accused adduces evidence of his good character the prosecutor may, in answer thereto, before a verdict is returned, adduce evidence of the previous conviction of the accused for any offences, including any previous conviction by reason of which a greater punishment may be imposed.
and also on s. 12 of the Canada Evidence Act, R.S.C. 1970, c. E-10, which provides:
12. (1) A witness may be questioned as to whether he has been convicted of any offence, and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction.
(2) The conviction may be proved by producing
(a) a certificate containing the substance and effect only, omitting the formal part, of the indictment and conviction, if it is for an indictable offence, or a copy of the summary conviction, if for an offence punishable upon summary conviction, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court in which the conviction, if upon indictment, was had, or to which the conviction, if summary, was returned; and
(b) proof of identity.
The Criminal Code section provides that when at trial the accused adduces evidence of good character, the prosecutor may adduce evidence of previous conviction of the accused for any offence. (The underlining is my own.) Section 12 of the Canada Evidence Act permits a witness to be questioned as to whether he had been convicted of any offence. (The underlining is my own.)
Counsel for the Crown submitted very forcefully that when the accused, here appellant, had given the evidence-in-chief, which I have recited above, he had put his character in issue and brought himself exactly within s. 593. There are three decisions of the Court of Appeal for Ontario upon this subject: R. v. MacDonald[2]; R. v. St. Pierre[3] and R. v. Merolla, decided on the 19th of April 1974. I have not the report of the latter case but it is cited and discussed in MacDonald where Arnup J.A. adopted Dubin J.A. in St. Pierre. There, dealing with a case where counsel for the accused led in chief evidence of prior convictions and had been stopped by the learned trial judge, he stated:
I do not think that by responding to those questions which are put to the accused for admittedly tactical reasons it can be said that he has put his character in issue. His questions and answers with respect to his past criminal record should be viewed in the same light as if they were brought out in cross-examination.
Of course, as Arnup J.A. pointed out, if the answers should be considered as if they had been brought out in cross-examination, then the learned trial judge would have had to have warned the jury that they could be considered only on the question of credibility and not as character evidence. Whether or not the circumstance that the questions as to record were put first in examination in chief rather than later by the Crown in cross-examination has the effect ascribed by Arnup J.A. and Dubin J.A. in the cases cited, I am still of the opinion that when the questions are put to the accused, as distinguished from any witness, which R. v. Bradbury[4], was concerned with, then what may be adduced in reply thereto is governed by the provisions of s. 593 of the Criminal Code and, in plain words, that section permits only proof of convictions. As I have said, here, in fact, there were no convictions nor any findings of guilt of delinquency, but, even if there had been the latter, I am of the opinion that such findings could not be considered as “convictions” within s. 593.
The Juvenile Delinquents Act, in s. 3, provides:
3. (1) The commission by a child of any of the acts enumerated in the definition “juvenile delinquent” in subsection 2(1), constitutes an offence to be known as a delinquency, and shall be dealt with as hereinafter provided.
(2) Where a child is adjudged to have committed a delinquency he shall be dealt with, not as an offender, but as one in a condition of delinquency and therefore requiring help and guidance and proper supervision. Section 20(1) of the same statute sets out in exact detail the power of the court when a child is “adjudged to be a juvenile delinquent”. The section provides:
20. (1) In the case of a child adjudged to be a juvenile delinquent the court may, in its discretion, take either one or more of the several courses of action hereinafter in this section set out, as it may in its judgment deem proper in the circumstances of the case:
(a) suspend final disposition;
(b) adjourn the hearing or disposition of the case from time to time for any definite or indefinite period;
(c) impose a fine not exceeding twenty-five dollars, which may be paid in periodical amounts or otherwise;
(d) commit the child to the care or custody of a probation officer or of any other suitable person;
(e) allow the child to remain in its home, subject to the visitation of a probation officer, such child to report to the court or to the probation officer as often as may be required;
(f) cause the child to be placed in a suitable family home as a foster home, subject to the friendly supervision of a probation officer and the further order of the court;
(g) impose upon the delinquent such further or other conditions as may be deemed advisable;
(h) commit the child to the charge of any children’s aid society, duly organized under an Act of the legislature of the province and approved by the lieutenant governor in council, or, in any municipality in which there is no children’s aid society, to the charge of the superintendent, if there is one; or
(i) commit the child to an industrial school duly approved by the lieutenant governor in council.
It is to be noted that the court is given many options but those options do not include or even refer to the conviction of the child or to the sentence of the child and it can only be concluded that it was the express policy of Parliament that a child found to be a juvenile delinquent should not be stigmatized as one who had been convicted and should not be subject to a sentence. This again is demonstrated in the words appearing in s. 38 of the Juvenile Delinquents Act: and that as far as practicable every juvenile delinquent shall be treated, not as criminal, but as a misdirected and misguided child, and one needing aid, encouragement, help and assistance.
I also cite Attorney General of British Columbia v. Smith[5], and particularly the words of Fauteux J., as he then was, at p. 710.
It is true that s. 26 of the Juvenile Delinquents Act commences with the words “No juvenile delinquent shall, under any circumstances, upon or after conviction…” but I am of the opinion that the use of the word “conviction” in that section cannot have the effect of depriving such sections as s. 3 and s. 20, to which I have referred, of their plain meaning which bars conviction and substitutes a finding of guilt of the offence of delinquency. I, therefore, am of the opinion that even if there had been findings of delinquency as to the appellant made when he was a juvenile, and there were not, then such findings could not be considered “convictions” for the purpose of permitting evidence as to them to be adduced by virtue of s. 593 of the Code.
It was also the submission of counsel for the appellant that the findings of juvenile delinquency, even if they had been made and as I repeat they were not, were not offences within the meaning of that word in s. 593 of the Code or s. 12 of the Evidence Act. There is much strength in the submission of counsel for the appellant on this point but I do not think it necessary to come to any determination on it in view of the opinion I expressed as to the three points with which I have dealt.
Therefore, I would allow the appeal. Such a result would naturally be followed by an order for a new trial. In this case, however, the appellant was convicted and sentenced on the 1st of February 1974. The sentence was only a three months’ suspended sentence with probation thereafter and a note to the effect that there might be a further order for probation at the end of the three months. It is now 1978. Under these circumstances, I see no practical value of a new trial whatever result there may be from such process. I would quash the conviction.
The judgment of Martland, Ritchie, Pigeon, Beetz and Pratte JJ. was delivered by
PRATTE J.:—I have had the advantage of reading the reasons for judgment prepared for delivery by my brother Spence, and contrary to him, I am of the opinion that this appeal should be dismissed.
The facts giving rise to this appeal are generally outlined in the reasons of my brother Spence; I do not propose to repeat them except when I feel it desirable for a better understanding of these reasons or where my understanding of the facts is different from his.
The main issue in this appeal is as to whether the cross-examination of the appellant in which he contradicted the evidence he had given in chief and admitted having been found guilty of a certain number of delinquencies under the Juvenile Delinquents Act was properly allowed by the trial judge under both s. 12 of the Canada Evidence Act and s. 593 Cr.C.
Before dealing with this problem however it is appropriate to consider first the submission of the appellant that whatever the merits of the decision of the trial judge, as to the admissibility of the cross-examination of the appellant upon his record as a juvenile, the verdict cannot stand because there is no proper evidence of the appellant ever having been found guilty of any delinquency. If this proposition were valid, it would necessarily follow that, contrary to the view expressed by the trial judge in his charge, the appellant did not lie in his examination in chief and a new trial clearly ought to be ordered.
It is well established that a conviction does not need to be proven by the production of the official record; it is just as validly proven by the admission of the convicted party. This method is indeed impliedly recognized by s. 12 of the Canada Evidence Act which provides for an alternate, albeit not exclusive, method of proving a prior conviction that is denied by the witness (Rex v. Lalonde[6]). A conviction that is admitted by a witness does not need to be otherwise proven and such evidence ought not to be disregarded except possibly in exceptional circumstances showing clearly that the admission was made in error. Human beings are not prone to admit their weaknesses and it is not to be feared that a witness will admit lightly to a conviction which was not entered against him; the reluctance of the appellant here in admitting his convictions bears out this very human trait. Wigmore, On Evidence, Chadbourn revision, Vol. 4, No. 1270 (at p. 656) writes as follows: “That there is any real risk of reaching an erroneous result by taking the witness’ own admission against his credit, extracted on cross-examination, is impossible; there is in such a case no need to insist upon a copy:…”.
In Jones v. Director of Public Prosecutions[7], Lord Morris of Borth-y-Gest, when making reference to the proof of the commission by the accused of an offence other than that charged, spoke thus at p. 685: “The admission of the accused when asked questions in cross-examination would be proof and there is no essential requirement that proof should be given in any other way…”. In Koufis v. The King[8], Taschereau J., as he then was, writing for the majority of the Court said with reference to s. 12 of the Canada Evidence Act, at p. 489: “If the accused admits having committed the offence, the answer, being a collateral one, is obviously final”.
Here, when he was cross-examined on his record before the Juvenile Court, the appellant initially remembered having been found guilty of theft and illegal possession in 1970 and of breaking and entering in 1972 when he was 17; he denied any recollection of having been found guilty of attempted theft in 1963 and of damage to a third party’s property in 1969. Upon being further questioned by the Crown and without any apparent reason therefor, the appellant suddenly recovered his memory and admitted the two convictions of 1963 and 1969. Here is the whole cross-examination of the appellant:
Q. Mr. Morris, you’ve mentioned to the Members of the Jury that you had never been previously arrested or convicted of any offence whatsoever. Is that correct?
A. Yes.
Q. Is it not a fact that in nineteen sixty-three, before the Juvenile Court, you were charged with and found guilty of attempted theft?
A. I don’t remember.
Q. Is it not true that in nineteen sixty-nine you were charged again before the Juvenile Court, convicted of damages to third party’s property, causing damages?
A. I don’t remember exactly.
Q. O.K., do you remember if in nineteen seventy you were charged with and found guilty of theft and illegal possession, in nineteen seventy?
A. Yes.
Q. Do you remember if in nineteen seventy-two, before the Juvenile Court, that you were found guilty of breaking and entering?
A. Guilty.
Q. You were found guilty in nineteen seventy-two. Is that correct?
A. Yes.
Q. That would have been at the age of eighteen… seventeen?
A. Seventeen.
Q. And how old were you when you were alleged to have gone into the building itself, under the circumstances that have been referred to, was this at the age of nineteen?
A. Yes.
Q. And you say that you don’t remember the earlier convictions that I referred to? Could you tell the Members of the Jury, then, what you do remember, as to how… for what alleged incident you were found guilty?
A. I remember being convicted of breaking and entering when I was a juvenile, nineteen seventy-two I think.
Q. And theft in nineteen seventy, and illegal possession do you remember that?
A. No.
Q. What, for instance, do you remember, other than the breaking and entering?
A. That’s all I remember. It happened so long ago. Q. I see. Nineteen seventy you don’t remember going to Juvenile Court?
BY HIS LORDSHIP:
He says he remembers nineteen seventy and nineteen seventy-two, Mr. Keyserlingk.
BY MR. HENRY R. KEYSERLINGK
ATTORNEY FOR THE PROSECUTION:
He says he only remembers the breaking and entering.
BY THE WITNESS:
I can’t remember exactly what happened, nineteen seventy, that day.
Q. Would it be accurate to say that you would have been convicted of theft and illegal possession in nineteen seventy?
A. Yes.
Q. And that in nineteen sixty-nine, with regards to causing damages to a third party’s property…
A. Yes.
Q. And to nineteen sixty-three, for attempted theft?
A. Yes.
Q. Thank you. No further questions.
In short, in his cross-examination, the appellant admitted four offences; it is my view that these must be taken as proven.
It was, however, argued before us that these admissions of the appellant should be disregarded because they would be contrary to the information contained in a document produced as exhibit S-1 by the Crown as a presentence report and which allegedly shows that the appellant was never found guilty of any offence as a juvenile.
This submission, on the part of the appellant, finds its source in the following expression of opinion of the learned trial judge in his report to the Court of Appeal, pursuant to s. 609 Cr.C.:
There is, however, one point about this appeal which concerns me. As stated above, the accused admitted, on cross-examination, that he had been convicted as a juvenile delinquent. In the face of such an admission, no further proof of his convictions seemed to me to be necessary or desirable. However, after the verdict and before sentence, there was produced as exhibit S-1 a copy of the accused’s Juvenile Court record. This document indicates that technically there were no convictions registered against the accused and that, even though he was confined for some time at the Boys’ Farm at Shawbridge, all the charges against him had been continued sine die without any formal disposition being made. If this fact had been made know[n] to me while the case was still in the hands of the jury, I might have taken a different attitude although I do not think so. In my view the accused had opened the door to evidence of his bad character by attempting to lead evidence of good character and the jury were entitled to know that he had perjured himself in his evidence in chief when he stated that he had never been arrested.
If I was wrong in ruling as I did, the evidence in question was clearly of great significance to the jury and in my respectful opinion there must be a new trial.
This exhibit S-1 was not before the Court of Appeal; speaking for the Court, Chief Justice Tremblay had this to say: [TRANSLATION] “Exhibit S-1 is not in the joint record and I am quite doubtful that it prevails over the formal admissions of appellant”.
This exhibit has now been located and is part of the record before us. I can find nothing in the document that would tend to support the view expressed by the trial judge in his report and which is now being urged upon us.
This document, exhibit S-1, reads as follows:
[TRANSLATION]
Montreal, January 30, 1974.
RE: Phillip Morris
Files
Offences
Judgments
2213/67
AUTOMOBILE THEFT & CONCEALMENT
15-5-67 Adjourned Sine Die
3471/67
THEFT & CONCEALMENT
8-5-67 Placement at Boys’ Farm & Training School 12-8-68 Placement of 8‑5‑67 cancelled
680/70
THEFT & CONCEALMENT
30-1-70 Case adjourned Sine Die
2839/72
BREAK. AND ENT. WITH INTENT
16-6-72 Sine Die
A.M. Racine Acting Clerk
AMR/jt
Social Welfare Court It should first be observed that this document makes no reference to the 1963 and 1969 convictions that were admitted by the appellant in his cross-examination; on the other hand, the two 1967 offences shown in exhibit S-1 were not referred to at the trial and this includes the offence in respect of which the accused was placed at the Boys’ Farm & Training School. The two offences in 1970 and 1972, which were rather readily admitted by the appellant in his cross-examination, appear last on this exhibit. It is contended that this document shows that all charges against the appellant were adjourned sine die without the appellant ever having been found guilty of an offence as a juvenile. This contention is erroneous. First of all, the document does not purport to give the complete juvenile record of the appellant; it omits the offences of 1963 and 1969 which have been admitted by the appellant in his cross‑examination. I therefore fail to see how the document can, in any way, be used to rebut the evidentiary value of the admissions of these two offences.
As to the four offences listed in the exhibit and which include those in 1970 and 1972 that were admitted by the appellant, the opinion of the trial judge that: “all the charges were continued sine die without any formal disposition being made” totally ignores the meaning of the word “Sentences” which heads the last column on the exhibit. In matters pertaining to Canadian penal legislation, the French word “sentence” is the equivalent of the English word “sentence”; both have the same meaning and are used in reference to the determination and pronouncement of punishment or like action following a finding of guilt; both words are utilized to define the fate or punishment of a person who has been adjudged guilty, (see Websters’ Dictionary of Synonyms Vo “sentence”). The definition of the English word “sentence” as given in Black’s Law Dictionary, revision 4th ed., is applicable to the French word “sentence” as used in Canadian criminal legislation:
The judgment formally pronounced by the court or judge upon the defendant after the conviction in a criminal prosecution, awarding the punishment to be inflicted. Judgments formally declaring to accused legal consequences of guilt which he has confessed or of which he has been convicted. The word is properly confined to this meaning.
With this in mind, it appears clearly that the actions described under the heading “Sentences” in exhibit S-1 relate to the issue of the penalty following a finding of guilt rather than to the issue of guilt of the “délits” themselves. In other words, the information given in summary form in the column “Sentences” purports to describe the steps taken by the Juvenile Court pursuant to s. 20(1) of the Juvenile Delinquents Act after the appellant has been “adjudged to be a juvenile delinquent”, i.e. after he has been found guilty of a violation of a provision of the Criminal code. What this column shows is that in all cases but one, the Court postponed making a decision as to what course or courses of action, among those enumerated in s. 20(1) of the Act, it would take in respect to the appellant who had already been found to be a delinquent as a result of having committed the offences listed in the second column headed “Délits”. Confirmation for this view is found in the supplementary material that was filed before us at the time of the hearing of this appeal under s. 67 of the Supreme Court Act and which was accepted on a limited basis, i.e. f