Morris v. The Queen

Morris v. The Queen
Collection
Supreme Court Judgments
Date
1979-06-14
Report
[1979] 2 SCR 1041
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Pratte, Yves
On appeal from
New Brunswick
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Morris v. The Queen, [1979] 2 S.C.R. 1041
Date: 1979-06-14
Hubert Edwin Morris Appellant;
and
Her Majesty The Queen Respondent.
1978: November 16, 17; 1979: June 14.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION
Criminal law—Murder—Evidence—Confessions and admissions—Rights of the accused—Voir dire—Failure to charge jury as to evidence of accomplice/ accessory after the fact—Whether witness accomplice/ accessory—Defence of drunkenness—Criminal Code, s. 613(1)(b)(iii).
The appellant was tried on a charge of murder following the death, after a vicious beating, of the woman with whom he was living. There was little room for doubt that the deceased died as a result of the beating administered by the appellant. The appellant was reported to have made the observation in a tavern on the day after, “I beat her up; I don’t know if she is alive or dead”. The appellant was found guilty at what was his second trial on the same charge, his conviction at an earlier trial having been set aside and a new trial directed (1976), 29 C.C.C. (2d) 540.
The grounds of appeal to this Court were that the Court of Appeal erred in law in holding that the trial judge did not err in law, (first) in not holding a voir dire for various statements allegedly made by the appellant, (second) in not instructing the jury that the evidence of a witness, C.T., who had been present at the beating, should be treated as that of an accomplice, and (third) in finding that lack of knowledge, due to intoxication, that bodily harm inflicted by any person is likely to cause death is not a “defence” to a charge of murder, and therefore erred in not holding that the evidence of drunkenness in this case should have reduced the verdict to manslaughter. The first alleged error related to statements made by the appellant to two uniformed police officers alerted by C.T., an acquaintance of the appellant, when they arrived at the appellant’s room to find the appellant standing by the bed on which the victim lay unconscious, with C.T. sitting beside her.
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Held (Laskin C.J. and Spence, Dickson and Estey JJ.: dissenting): The appeal should be dismissed.
Per Martland, Ritchie, Pigeon, Beetz and Pratte JJ.: In the particular circumstances of the case the trial judge was in error in admitting the statements made by the appellant at the time that the police officers arrived at his room. The police officers were in uniform and the girl’s condition must have made it obvious that they were investigating at least a serious case of assault. Appellant’s counsel however made no objection to the absence of a voir dire notwithstanding that one had been held at the first trial and this taken in conjunction with the mass of other evidence made it appropriate to apply s. 613(1)(b)(iii) of the Code.
While C.T. was present during the terrible events of the night and morning in question and had taken no steps to stop the appellant in his actions this did not mean that he should have been treated either as an accomplice or as an accessory. A person does not become an accomplice merely by witnessing an act and failing to intervene to prevent it. Further the evidence of two statements as to the victim’s condition to the effect that she was alright, merely sleeping, and that nothing happened, when read in light of s. 23(1) of the Code, which defines an accessory after the fact as one who knowing that a person had been a party to an offence receives, comforts or assists him for the purpose of enabling his escape did not justify the conclusion that C.T. was an accessory.
Finally, the Court of Appeal was in error when it said “…lack of knowledge, due to intoxication, that bodily harm inflicted by any person is likely to cause death is not a defence to a charge of murder”. Notwithstanding this error there was however no justification for the further allegation that the evidence of drunkenness justified a reduction of the verdict to manslaughter.
Per Laskin C.J. and Spence, Dickson and Estey JJ. dissenting: Under these circumstances the two police officers when in the apartment were regarded by C.T. and the accused as “persons in authority” and were so acting. While not holding that counsel for the appellant waived the requirement of a voir dire, or even that such a waiver is possible, these facts and the mass of other evidence justified the application of s. 613(1)(b)(iii) of the Code. The admissibility of the very brief exculpatory statement without determining its voluntary character caused no substantial miscarriage of justice.
[Page 1043]
As to the second ground of appeal, a person merely witnessing an act does not thereby become an accomplice. Indeed counsel for the appellant in his address to the jury, although he attacked most vigorously C.T.’s credibility did not imply that C.T. might have taken any part in beating the victim. Nonetheless C.T.’s statements to the police officer, “Oh, she’s alright, she’s just sleeping” and “nothing happened” were false statements serving to conceal evidence and exonerate the appellant and C.T. in effect so admitted in his cross-examination. C.T. was therefore an accessory. As an accessory after the fact is “particeps criminis”, and so an accomplice, the judge should have given an “accomplice warning”. In view of the fact that C.T. was demonstrably a most unreliable witness, and of the thrust of his evidence, it was possible to say that a jury given the proper warning could not, acting judicially, have failed to convict the appellant. Upon this ground the appeal should have been allowed and a new trial directed.
On the third ground of appeal, the trial judge was doubtful that the jury could find that the appellant could have formed the necessary specific intent. It was for the Appeal Division to satisfy itself not that there was evidence but that the weight of such evidence was not so weak as to make the verdict of the jury unreasonable, a requirement which falls short of requiring the Appeal Division to substitute its opinion for that of the jury.
[Sykes v. The Director of Public Prosecutions, [1962] A.C. 528; Attorney General for Northern Ireland v. Gallagher, [1963] A.C. 349; Erven v. The Queen, [1979] 1 S.C.R. 926; R. v. Sweezey (1974), 27 C.R.N.S. 163; R. v. Morris (1976), 29 C.C.C. (2d) 540; Piché v. The Queen, [1971] S.C.R. 23; R. v. Taylor (1971), 1 C.C.C. (2d) 321 referred to.]
APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division[1], dismissing an appeal from a conviction by Barr J. with a jury on a charge of murder. Appeal dismissed, Laskin C.J. and Spence, Dickson and Estey JJ. dissenting.
J. Brian Neill, for the appellant.
Patricia Cumming and David Hitchcock, for the respondent.
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The judgment of Laskin C.J. and Spence, Dickson and Estey JJ. was delivered by
SPENCE J. (dissenting)—This is an appeal from the judgment of the Appeal Division of the Supreme Court of New Brunswick pronounced on July 28, 1977. By that judgment, the Appeal Division affirmed the conviction of the appellant on June 5, 1976, by a judge and jury on the charge
THAT he did on or about the 5th of January, A.D. 1974 at the City of Fredericton, in the County of York and Province of New Brunswick, unlawfully cause the death of Linda Diana Hitchcock and did thereby commit murder punishable by life imprisonment, contrary to Section 218(2) of the Criminal Code of Canada and amendments thereto.
I shall recite the facts as set out by Limerick J.A. in his reasons for judgment for the Appeal Division and refer hereafter to any additional facts which are relevant to these my reasons. Limerick J.A. said:
At 8:20 a.m. on January 5th, 1974, Csts. Arbeau and Larder of the City of Fredericton police force received a radio call as a result of which they proceeded to the Windsor Hotel, a combined rooming house and hotel, at 151 Westmorland Street in the City of Fredericton to assist in taking a patient to the hospital.
On entering room No. 25, occupied by the appellant, they found the deceased, Linda Diana Hitchcock, lying crosswise on a bed. Carl Taylor, occupant of room No. 23 was sitting on the bed and the appellant was standing nearby. Miss Hitchcock was unconscious, her eyes were partly open and her breathing was shallow and labourous.
Cst. Arbeau asked what the problem was and the appellant replied that she had been drinking all night and had fallen down the stairs on her way to the bathroom. After communicating with police headquarters by radio, Cst. Larder carried the 90 pound Miss Hitchcock to the police car and placed her in the rear seat and the appellant sat with the girl’s head on his lap. The police drove the car to the hospital and delivered Miss Hitchcock to the emergency ward where she was examined by an intern and two doctors, who then had her removed to the intensive care unit of the hospital. She was pronounced dead the following day.
Medical evidence established there were multiple bruises and cigarette burns on her arms, legs and body, a raised
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lump on one temple and a cut in her scalp at the back of her head as well as bruises, some of which were recent and others several days old.
An autopsy disclosed death was caused by a massive subdural haematoma resulting from the tearing of the sagittal vein lying between the two hemispheres of the brain which had caused internal pressure in the skull forcing the lower portion of the brain into the opening at the base of the skull and so damaging the part of the brain which controls the vital functions of the body, resulting in the paralysis of these vital functions.
The evidence discloses that for some months prior to Miss Hitchcock’s death she had been living with the appellant in apartment No. 25, a two room apartment, in the Windsor Hotel. About 10:00 p.m. on the night of January 4th she had gone to the Canadian Legion dance in Marysville with Darrell White, Marjorie Arbeau and Kenny Hanson. They left the dance about 1:30 a.m. and after eating at a restaurant they, in company with Gerald Peterson, returned to the Windsor Hotel to apartment No. 20 where Mr. White and Miss Arbeau lived. The deceased then left apartment No. 20 to find the appellant and brought him back to that apartment.
Later that night Mr. White and Miss Arbeau went for a drive leaving the appellant, the deceased, Gerald Peterson and Kenny Hanson in White’s apartment. The appellant struck the deceased both before and after Mr. White and Miss Arbeau left the apartment. On the occasion of the second slapping when told by Kenny Hanson to leave her alone, the appellant left the apartment. He later returned and carried the deceased out of the apartment.
Between 5:30 and 6:00 a.m. several of the tenants heard loud talking and shouting and two heavy thuds from the area of Carl Taylor’s apartment (No. 23) just down the hall from that of the appellant. Mrs. Wilson, who had an apartment across the hall from No. 23, removed her children from their bedroom around 5:30 a.m. on that morning because of loud talking, crying and noises eminating from Taylor’s apartment. She overheard the deceased crying and say to the appellant “Please don’t hit me any more”. She also heard the deceased ask Carl Taylor to make the appellant stop hitting her. Through the keyhole in her bedroom she saw the appellant through the open door of Taylor’s apartment seated in Taylor’s apartment. She heard the appellant say he wouldn’t hit her any more and later again heard the deceased crying and say “I thought you weren’t going to hit me any more”.
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A number of witnesses testified that on previous occasions they had seen the appellant beating and slapping the deceased. Anita McGraw, a week previous to the 5th of January, observed the appellant slapping and punching the deceased in the face and head and banging her head against the wall of their apartment.
Carl Taylor, who was somewhat intoxicated on the night of January 4th, and somewhat confused as to times and the sequence of events on that night, testified that the appellant and the deceased were in his apartment No. 23 on the night of January 4 and that the appellant continually beat the deceased, had thrown her on the floor and banged her head three or four times against the refrigerator door. He also testified the deceased had left the apartment to go to the toilet followed by the appellant. Taylor said he followed them out into the hall to see what was going on and saw the appellant helping the deceased up off the floor of the landing of the stairway in front of the bathroom. A police officer testified this landing was six and three quarters inches below the level of the hall floor or one step down. All three then returned to Taylor’s apartment. The appellant finally returned to his own apartment about 7:30 a.m., dragging the deceased, who was at the time unconscious, by the hair. Taylor, worried by her condition, telephoned for an ambulance between 8:00 and 8:15 a.m.
Taylor testified the appellant about a week previously had threatened to kill him with a knife and for this reason was afraid of him and had not interfered to stop him beating the deceased.
Leave to appeal to this Court was granted on October 6, 1977, and the following three questions were put to this Court by the appellant as grounds of appeal:
1. Did the Supreme Court of New Brunswick, Court of Appeal err in law in holding that the learned Trial Court Judge did not err in law in not holding a voir dire for various statements allegedly made by the accused appellant, Hubert Edwin Morris?
2. Did the Supreme Court of New Brunswick, Court of Appeal err in holding that the learned Trial Court Judge did not err in law in not instructing the jury that the evidence of Karl Taylor, a Crown witness, should be treated as that of an accomplice?
3. Did the Supreme Court of New Brunswick Court of Appeal, err in law in finding that the lack of
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knowledge, due to intoxication, that bodily harm inflicted by any person is likely to cause death is not a “defence” to a charge of murder, and did they thereby err in not holding that the evidence of drunkenness in this case was so overwhelming that it should have reduced the verdict to manslaughter?
I shall deal with those three grounds of appeal in the same order.
This Court, on December 21, 1978, pronounced judgment in the appeal of Keith Bruce Erven v. Her Majesty The Queen[2]. In that appeal, reasons were delivered by Dickson J. which were concurred in by three other members of the Court. Concurring reasons were delivered by Pratte J. which were concurred in by another member of the Court, and dissenting reasons were delivered by Ritchie J., concurred in by two members of the Court. Dickson J., for himself and for his three concurring brethren, expressed the view at p. 943:
In my opinion, it is always necessary to hold a voir dire to determine the voluntariness of a statement made by an accused out of court to a person in authority. Only in this way can fairness to the accused be assured. To require a voir dire only if doubt is cast on the voluntariness of a statement by the circumstances under which it was made, as determined from evidence given in the trial proper, would not only shift a burden to the accused but also, in other respects, cause him significant prejudice. One must be realistic with the jury process. If the statement is subsequently ruled inadmissible, the jury will, nevertheless, at least be left with the knowledge that a statement was made by the accused which has now been excluded. This is bound to arouse suspicion as to its content. If evidence of the context of the statement is allowed to be given for some time before anything casts doubt on its voluntariness, the jury will know something, and perhaps much, of its content. Prejudice will surely result. Such a limited requirement would destroy the fundamental distinction between the function of the voir dire, which is to determine voluntariness, and that of the trial proper, which is to determine guilt.
I can see no justification for engrafting upon the general rule, which is remarkably free of qualifications, any exception and, particularly, one expressed in such terms as “obviously voluntary” or “volunteered”. Attempts in
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the past to water down the rule have not met with success and, in my opinion, the present attempt should also be repelled.
With that view, I then concurred, as did two of my brethren, and I apply that view to the present appeal to say that the appellant’s statements to the two police constables Arbour and Larder should not have been admitted Unless and until their voluntary character had been determined in a voir dire.
Limerick J.A. suggested, as one of the reasons for the admissibility of the statements, that these two officers, when they entered the appellant’s apartment, were not “persons in authority”. The learned justice in appeal was of the view that they were not then investigating a crime and that there was no suggestion that a crime had been committed. I have read and reread the evidence of the constables. They testified that they were on patrol in a marked police cruiser at about 8:20 a.m. when they received a call on the police radio. Constable Larder merely testified “We received a call from our despatch”. Constable Arbour testified “I answered a call to Windsor Hotel or Windsor Apartments”. When the two constables entered the apartment, they found the victim lying across the bed unconscious, one thought at first that she was dead, and the appellant and the witness Carl Taylor present. Arbour asked who called the ambulance and also what was the trouble. With respect, I have not the slightest doubt that both the appellant and Carl Taylor had no other thought than that these two uniformed constables, appearing so immediately after the call for the ambulance and finding these two men with an unconscious woman, were “persons in authority” and were exercising their authority in the investigation of highly suspicious circumstances. I can see nothing in the circumstances which would permit a conclusion other than that it was a situation which required that the admissibility of the statements should be tested in a voir dire. I subscribe to what was said by Martin J.A. on this point in R. v. Sweezey[3], at p. 177:
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I am consequently of the view that a statement made by a person to a police officer conducting an investigation with respect to a suspected offence must be shown to have been made voluntarily before it is admissible against that person in a criminal trial in which he is an accused. The words “statement by an accused” used by Lord Sumner in Ibrahim v. The King, supra, in my view, refer to a statement made by a person who is an accused in a criminal trial when the statement is sought to be introduced against him rather than to the fact that he was an accused at the time he made the statement.
Then, is the failure to hold a voir dire, and the consequent submission to the jury of evidence which might have been inadmissible as not voluntary, fatal to the conviction? Dickson J., in Erven, was of the opinion that s. 613(1)(b)(iii) was available but that the circumstances in that case made its use inadvisable. Pratte J. expressed the same view. Ritchie J., in his dissenting reasons, was of the opinion that the statements were properly admitted without a voir dire but concluded, “I am, therefore, in any event of the opinion that this is a case in which s. 613(1)(b)(iii) of the Criminal Code should be invoked”.
I, therefore, turn to consider whether the failure to hold a voir dire in the circumstances of this case resulted in no substantial miscarriage of justice so as to permit the application of s. 613(1)(b)(iii) of the Criminal Code. The circumstances are quite unusual. The appellant had been tried previously for the same offence and was then represented by the same counsel who appeared on his behalf on the second trial, in the Appeal Division and in this Court. At the first trial, the admissibility of these statements was considered in a voir dire. After conviction, a new trial was directed (R. v. Morris[4]).
Upon Constables Larder and Arbour being called at the second trial, this same counsel made no objection to the admissibility of their evidence in which they testified as to the statements in question and made no request that such issue be considered in a voir dire. These two witnesses, and many others, were cross-examined minutely as to
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the fact that they failed to observe obvious signs of a beating when they first saw the victim. The statements objected to as inadmissible were totally exculpatory. “She had been drinking all night and she had fallen down the stairs on her way to the bathroom”, Arbour testified. That factor, however, does not remove the necessity of a voir dire (Piché v. The Queen[5]) but it is of importance in considering whether s. 613(1)(b)(iii) should be applied. Of much more importance is that counsel for the defence called two witnesses but did not call the appellant who, in conversation with another patron of a tavern the next morning, had made admissions very contradictory to his exculpatory statement the admissibility of which is here in question. In his address to the jury, counsel for the appellant attacked very strongly the reliability of the evidence of the Crown witness Carl Taylor which will be dealt with hereafter and other witnesses who had testified to a series of brutal assaults upon the victim by the appellant and then said:
If you are not satisfied, if you are satisfied that the injuries came about partly of her own volition, perhaps because she fell down the stairs, which evidence I will deal with in a few minutes, perhaps from a culmination of events over a period of time, which again is not the subject matter of this charge, then you must find the accused not guilty.
Counsel continued in his address to stress the evidence as to the appellant’s intoxication in reference to his ability to possess the necessary intent but then returned to an analysis of the evidence of the other witnesses and of the medical evidence to show in it support for the statement of the accused, recited above, the admissibility of which he now contests even referring to the statement itself. Under these circumstances, there is much force to the comment made by Limerick J.A. that “the admission of the statement formed the basis for the defence that the beating inflicted on the deceased by the appellant was not the cause of her death”.
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I am not ready to hold that counsel for the accused waived the requirement of a voir dire or even that such a waiver is possible. That matter is to be considered in another appeal. But these facts, together with the presence of a mass of evidence, not only from Carl Taylor but many other witnesses recounting the many assaults upon the deceased during that long terrible night, convince me that the admissibility of this very brief exculpatory statement without determining its voluntary character in a voir dire caused no substantial miscarriage of justice. Therefore, I would apply s. 613(1)(b)(iii) of the Criminal Code.
The second ground of appeal urged in this Court was the submission that the learned trial judge should have included in his charge to the jury a warning that Carl Taylor was an accomplice and that, therefore, it was dangerous to convict on his uncorroborated evidence although it was within their power to do so. Although Carl Taylor was arrested later in the morning after the constables’ arrival at the scene and was taken to the police station, Constable Larder testified that it was because he was intoxicated not because he was considered to have been involved in the offence. Of course, when Constables Arbour and Larder arrived at the Windsor Apartments and entered the apartment in question, they found there the unconscious victim and two men, the appellant and Carl Taylor. The constables’ investigation could not fail to include them both and for the purpose of that investigation both would be considered suspects. But after the evidence at the trial had been concluded and the judge charged the jury, it was apparent that Carl Taylor could not be considered an “accomplice” in the limited sense of the word. Despite the appellant’s argument in this Court, I find no authority for the proposition that one who merely fails to prevent another person assaulting a third can be considered as an accomplice in the assault. I agree with Dickson J.A., as he then was, when he said in R. v. Taylor[6] at p. 329, “A person merely witnessing an act does not thereby become an accomplice”.
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Indeed counsel for the accused, in his address to the jury, although he attacked most vigorously Carl Taylor’s credibility, did not imply that Taylor might have taken any part in beating the victim. Carl Taylor, however, did make a statement to these officers which tended to exonerate the appellant. Constable Arbour, in his testimony, reported Taylor as saying, after the appellant had stated that the victim had fallen down the stairs, “Oh, she is alright, she’s just sleeping”. Carl Taylor, in cross-examination, admitted that he told the officers that “nothing happened”. Carl Taylor assigned two reasons for this false statement: firstly, he feared that he himself might be accused of harming the girl and, secondly, he feared that the appellant, who had threatened him with a knife only a few days before, would harm him if he involved the appellant. In The King v. Levy[7], the Court of Appeal held that a person who concealed evidence, knowing that an accused was guilty, in an attempt to assist him in escaping conviction was an accessory after the fact. The Criminal Code defines an accessory after the fact in s. 23(1) as follows:
23. (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists him for the purpose of enabling him to escape.
I am of the opinion that The King v. Levy, supra, would have been so decided if that subsection of the Code had been applicable and R. v. Andrews, R. v. Craig[8], is to the same effect. I quote Lord Parker, C.J., at p. 962:
That he did not do so fully is clear, because a full direction entails telling the jury that they must be satisfied that the appellant did the acts complained of for the purpose of assisting the principal felon to escape apprehension or conviction.
R. v. French[9] is to the same effect.
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I cannot see that the fact that Carl Taylor’s action was motivated by fear of reprisal would make him any less an accessory after the fact in the present circumstances. With respect, I must differ from Limerick J.A. when he said:
There is no evidence to support the suggestion that Taylor told the police nothing happened with the intention of helping the appellant escape liability.
I am of the opinion that Taylor so admitted in his cross-examination.
The question, therefore, is whether it is necessary to give to the jury the “accomplice warning” in the case of a witness who was an accessory after the fact. The issue was referred to rather obliquely in Horsburgh v. The Queen[10], where the Court was considering whether the trial judge should have warned himself in accordance with the rule of practice, now become a rule of law, applicable to the evidence of accomplices, upon considering the evidence of a group of juvenile witnesses who had testified for the prosecution. It was the contention of the Crown that these witnesses could not be considered accomplices as they could not have been convicted of the charge against the accused. Martland J., at p. 755, cited and adopted the statement of Lord Simonds, L.C., in Davies. Director of Public Prosecutions[11] at p. 400:
There is in the authorities no formal definition of the term “accomplice”: and your Lordships are forced to deduce a meaning for the word from the cases in which X, Y and Z have been held to be, or held liable to be treated as, accomplices. On the cases it would appear that the following persons, if called as witnesses for the prosecution have been treated as falling within the category:—
(1) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanors). This is surely the natural and primary meaning of the term “accomplice”. But in two cases, persons falling strictly outside the ambit of
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this category have, in particular decisions, been held to be accomplices for the purpose of the rule: viz:
(2) Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny (Rex v. Jennings, (1912) 7 Cr. App. R. 242: R. v. Dixon, (1925) 19 Cr. App. R. 36):
(3) When X has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted, of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident; in such cases the court has held that in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration. (Rex v. Farid, (1945) 30 Cr. App. R. 168).
Martland J. continued at p. 756:
I do not agree that this result follows from the Davies case. Particeps criminis means one who shares or co-operates in a criminal offence. The passage cited from that case shows that the term includes an accessory after the fact, who certainly could not be convicted of the main offence. What is necessary to become an accomplice is a participation in the crime involved, and not necessarily the actual commission of it. Whether or not there has been such participation will depend upon the facts of the particular case.
It will be seen that Martland J. was there concerned with whether a person was “participes criminis” even if he could not be convicted of the offence of which the accused were charged. He illustrated that the definition of “accomplice” was not so narrowly confined by pointing out that the Lord Chancellor considered that even accessories after the fact were “participes criminis” although certainly accessories after the fact, or the witnesses in Horsburgh could be so convicted. As a matter of fact, the witnesses in Horsburgh were certainly not in the position of accessories after the fact. Martland J., for the majority, was of the opinion they were accomplices in that they were “particeps criminis”.
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In R. v. Gratton[12], at pp. 154-5, the Appeal Division of the Supreme Court of New Brunswick determined that an accessory after the fact was not an accomplice. Limerick J.A. there found that the inclusion of accessory after the fact in the definition of accomplices by the Lord Chancellor in Davies, supra, was not in accord with the law in Canada or, at any rate, in New Brunswick. Hors-burgh was not cited.
In Ontario in R. v. Riezebos[13], the Court of Appeal for Ontario was concerned with a witness, Utting, who it was alleged was an accessory after the fact in that he assisted the accused for the purpose of enabling them to escape (at p. 8). Lacourciere J.A., in giving judgment for the Court, cited Mahlikilili Dhalamini v. The King[14], Davies v. Director of Public Prosecutions, supra, Horsburgh v. The Queen, supra, and R. v. Gratton, supra, and at p. 11 said:
With great respect, we are unable to agree with this submission or with the conclusion of the Court in R. v. Gratton, supra, and the other cases referred to. Logically, the evidence of an accessory after the fact should be regarded as untrustworthy because of his desire “to purchase lenient treatment for himself at the expense of the accused by co-operating with the authorities” per Ritchie J., in Horsburgh, supra, at p. 310 C.C.C., p. 719 D.L.R. It seems to us that the question whether an accessory after the fact should be treated as an accomplice has been answered affirmatively by the highest Court in the land in the Horsburgh case, supra, so that it is concluded and may be regarded as settled law in Canada.
The same issue came before this Court in Paradis v. The Queen[15]. There, Pigeon J., giving reasons for judgment for himself and two others, held that although the warning need not be given in the case of an accessory after the fact, the witness in question on the evidence in the particular case would have to have been determined by the jury to be an accomplice before he could have been found to be an accessory after the fact and, therefore, the trial judge was correct in including the warning in his charge. Martland J., for the majority, at p.
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265, agreed with that determination but added as to the decision of the Court of Appeal of Quebec that the warning need not be given in the case of an accessory after the fact:
I am not, however, prepared to accept the view expressed by the Court of Appeal on that issue. The Court approved the judgment of the Court of Appeal for New Brunswick in R. v. Gratton (1971), 5 C.C.C. (2d) 150. In the later case of R. v. Riezebos (1975), 26 C.C.C. (2d) 1, the Court of Appeal for Ontario did not agree with the conclusion reached in the Gratton case, and preferred to adopt the definition of the term “accomplice” stated by Lord Simonds, L.C., in Davies v. Director of Public Prosecutions, [1954] A.C. 378, at p. 400, which was accepted by my brother Ritchie and by me in Horsburgh v. The Queen, [1967] S.C.R. 746, at pp. 768 and 756. I am not persuaded that we were wrong in so doing.
In that paragraph, Martland J., for the majority of the Court, reaffirmed the view which he had expressed in Horsburgh, again for the majority, that an accessory after the fact was “particeps criminis” and so an accomplice and therefore that the warning should be given as to the testimony of such a witness.
In R. v. French, supra, the Court of Appeal for Ontario was concerned with the testimony of a witness who had first stated to police that the accused was elsewhere at the time the crime was committed and testified she had so stated for fear of her life. The Court held, in a unanimous judgment, that the trial judge was in error in not leaving to the jury the question of whether the witness were an accessory after the fact if she had so acted for the purpose of enabling the accused to escape. MacKinnon J.A., as he then was, said at p. 214:
Lacourciere, J.A., speaking for this Court in R. v. Riezebos (1975), 26 C.C.C. (2d) 1, reviewed the law with relation to accomplices and accessories after the fact and quoted the following passage from the majority judgment in Horsburgh v. The Queen, [1968] 2 C.C.C. 288 at pp. 298-9, 63 D.L.R. (2d) 699, [1967] S.C.R. 746 at p. 756 [p. 10]:
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Particeps criminis means one who shares or co-operates in a criminal offence. The passage cited from that case shows that the term includes an accessory after the fact, who certainly could not be convicted of the main offence. What is necessary to become an accomplice is a participation in the crime involved, and not necessarily the actual commission of it. Whether or not there has been such participation will depend upon the facts of the particular case.
The Court in Riezebos came to the conclusion that the question whether an accessory after the fact should be treated as an accomplice had been answered affirmatively by the Supreme Court of Canada in the Hors-burgh case. The majority of the Supreme Court reaffirmed this view in Paradis v. The Queen (1977), 33 C.C.C. (2d) 387, 73 D.L.R. (3d) 745, 13 N.R. 251.
Despite the clash of opinion between the appeal courts in New Brunswick, Quebec and Ontario, I have come to the conclusion that MacKinnon J.A., as he then was, was correct when he stated that the majority of this Court had, in Paradis, reaffirmed that the trial judge should give to the jury the accomplice warning as to witnesses whom they find to be accessories after the fact. I realize the obiter character of statements to this effect in both Horsburgh and Paradis but it is an obiter which has been repeated and, at least in Ontario, has been adopted as a firm statement of the law. The rule, in my opinion, is a salutary one for the reason referred to in Horsburgh by Ritchie J. and stated again by Lacourciere J.A. in Riezebos at p. 11:
Logically, the evidence of an accessory after the fact should be regarded as untrustworthy because of his desire “to purchase lenient treatment for himself at the expense of the accused by co-operating with the authorities”.
I have, therefore, concluded as part of my ratio decidendi in this appeal that the learned trial judge erred in not leaving to the jury the question of whether Carl Taylor was an accessory after the fact and warning them that if they so found it would be dangerous to convict the appellant on the uncorroborated evidence of such accessory after the fact.
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Again, this does not end the matter. There is no logical reason why it should be determined that the provisions of s. 613(1)(b)(iii) should not be invoked. Limerick J.A. did so in his reasons for the Appeal Division applying the section without expressly referring to it, in the last paragraph of his reasons. MacKinnon J.A., as he then was, adopted the same course in French when he said at p. 216:
The jury were left in no doubt as to the danger of convicting on the uncorroborated evidence of Miss Deveau. The warning given by the trial Judge satisfied the requirements of justice and there was no substantial wrong or miscarriage of justice in his failing to leave to the jury the question of whether Miss Deveau was an accessory after the fact.
I therefore turn to consider whether the failure I have found in the charge resulted in any miscarriage of justice.
Carl Taylor was amply demonstrated to be the most unreliable witness. There is some significance in the fact that the witness upon whom the Crown relied to testify to the cruel and senseless beating inflicted upon the deceased over many hours was only called as the twenty-seventh witness for the Crown after two hundred and fifty-three foolscap pages of evidence had been given. In his examination it was shown that Carl Taylor came directly from an alcoholics’ rehabilitation institution accompanied by an attendant and that he had a criminal record. The cross-examination reveals page after page of contradictions, hesitations and frequent resort to the reply of “I don’t remember”, which might well reflect his own intoxication during the critical period. All of these features of Taylor’s testimony were the subject of very strong comments in the defence counsel’s address to the jury.
Although as the learned trial judge asks in his charge “Did the blows described by Taylor and that is the only evidence of the serious blows, cause a rupture of the sagittal vein…?” (the underlining is my own), there was a great deal of other direct and circumstantial evidence of well nigh continuous beating of the deceased by the accused
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during this long and terrible night. Moreover, evidence was given by one witness that the accused in the tavern the next morning admitted “I beat her up and I don’t know whether she’s alive or dead”.
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