Warkentin v. The Queen

Warkentin v. The Queen
Collection
Supreme Court Judgments
Date
1976-07-12
Report
[1977] 2 SCR 355
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
British Columbia
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Warkentin v. The Queen, [1977] 2 S.C.R. 355
Date: 1976-07-12
Melvin Granville Warkentin, Ralph Harry Hanson and Clifford John Brown Appellants;
and
Her Majesty The Queen Respondent.
1976: February 6; 1976: July 12.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law—Rape—Corroboration—Whether evidence capable of corroborating story of complainant—Criminal Code, R.S.C. 1970, c. C-34, s. 142 (now repealed).
Criminal law—Appeal—Failure to specify grounds for dissent in formal judgment of Court of Appeal—Omission not fatal to jurisdiction of Supreme Court of Canada to hear appeal.
The complainant, an 18-year-old Indian girl, alleged that at about 9 p.m., upon leaving a bar at Williams Lake, she was grabbed by four men, three of whom were the present appellants, forced into a red Mustang car, and driven to an isolated spot, where one of the men pulled her out of the car and threw her on the ground. Two of the accused then held her arms and one, after having undressed her partially, had intercourse with her without her consent while the fourth stood close by laughing. Thereafter, she said, she escaped through the bush and, meeting two friends, reported what had befallen her. She was “very upset” and “crying hard”. On her return a few minutes later to Williams Lake, she met another friend and was finally convinced to go to the police. The three accused were arrested the following day around 1:30 a.m.
On a charge of rape, a verdict of guilty was entered against all three appellants. An appeal was dismissed by a majority of the British Columbia Court of Appeal and a further appeal was then brought to this Court.
The question to be decided was whether the trial judge erred in characterizing the following pieces of evidence as being capable of corroborating the story of the complainant: (1) A written admission of facts that the three accused and a fourth man were together at a dance hall at the time of their arrest; that the accused and the fourth man admitted that they had been together earlier in the evening; and that a red Mustang vehicle owned by one of the accused was parked at the dance. (2) The distraught condition of the complainant after she had made her escape. (3) The fact that seminal fluid was found in the complainant’s vagina and underclothing. (4) The fact that human scalp hair was found on her jeans and that it could have originated from the same source as 70 human scalp hairs on the clothing of one of the appellants. (5) The finding of pine needles in the complainant’s underclothing.
Held (Laskin C.J. and Spence, Pigeon and Dickson JJ. dissenting): The appeal should be dismissed.
Per Martland, Judson, Ritchie, Beetz and de Grandpré JJ.: The corroborative evidence of which s. 142 of the Criminal Code speaks need not identify each accused separately when the evidence to be corroborated is that a gang rape has been committed. It is sufficient to establish that intercourse without consent has taken place and that the group was a party to it. Nor could it be accepted that the corroborative evidence of s. 142 must be pigeonholed in three different slots, namely intercourse, non-consent and identity. It is the entire picture that must be looked at, not a portion thereof. When that supporting evidence, as in the present case, is circumstantial, it is the whole that must be examined and not each piece individually. The corroborating evidence should not be broken up into fragments.
The five pieces of evidence indicated by the trial judge as capable of constituting corroborative evidence should only be looked at together. Taken one by one, they did not tend to show that intercourse took place without the consent of the complainant with one or the other of the accused. Taken as a whole, however, they were capable of establishing these three elements of the crime.
Per Laskin C.J. and Spence, Pigeon and Dickson JJ. dissenting: In order to be corroborative within the meaning of s. 142 of the Code, the evidence must be on a material point in the case and, above all, it must implicate the accused by connecting or tending to connect him with the alleged offence. This evidence must, of course, also be independent of the acts or words of the complainant.
There were in this case two issues: (i) was the complainant subjected to intercourse without her consent, i.e. was she raped?; (ii) were the accused identified with that intercourse, i.e. did the accused commit the act alleged? Corroboration was required on each issue and, if lacking, it was the duty of the judge to instruct the jury to that effect.
The five pieces of evidence to which the trial judge referred tended to support the credibility of the complai- nant and they were no doubt admissible in evidence, but they could not be regarded as capable of being corroborative of the complainant’s evidence, within the meaning of s. 142 of the Code. There was simply no corroborative evidence which linked the group (comprising the three accused and a fourth man) or any individual member of the group with the offence. The mere presence of the four men in Williams Lake on the night of the alleged crime could hardly serve as a nexus entwining the accused with the act of forced intercourse, nor could ownership of a red Mustang by one of the men. The evidence of identity must be such as to place the accused at the scene of the crime, not at some other place in the same town.
The emotionally distraught condition of the girl after the offence did not in any way implicate the accused and the presence of seminal fluid did not show that the intercourse was without consent nor did it implicate any of the accused. The human scalp hair was of such little probative value as to be incapable of corroborative effect and the pine needles did not strenghten or confirm the evidence of the complainant on any issue.
Items of evidence said to implicate an accused may be looked at collectively and within the total picture of all the evidence but if, lacking independence, none of the items is capable of corroborative effect, then no accumulation will serve to create that effect.
Per Laskin C.J. and Spence, Pigeon, Dickson and Beetz JJ.: Despite the incomplete nature of the formal judgment of the Court of Appeal, this Court had jurisdiction to hear the appeal. Section 618(1)(a) of the Code accords an appeal to any person convicted of an indictable offence “on any question of law on which a judge of the court of appeal dissents”. There is no reference in s. 618(1)(a) to s. 606, which provides that the formal judgment “shall specify any grounds in law upon which the dissent, in whole or in part, is based”.
Per Martland, Judson, Ritchie and de Grandpré JJ., dissenting: The failure to specify the grounds for dissent in the formal judgment of the Court of Appeal was an omission which, under s. 606 of the Code, was fatal to the jurisdiction of this Court.
[D.P.P. v. Hester, [1972] 3 All E.R. 1056; D.P.P. v. Kilbourne, [1973] 1 All E.R. 440; James v. The Queen (1970), 55 Cr. App. R. 299; Kolnberger v. The Queen, [1969] S.C.R. 213; Hubin v. The King, [1927] S.C.R. 442; R. v. Reardon, [1945] O.R. 85; R. v. O’Hara (1946), 88 C.C.C. 74; R. v. Ethier (1959), 124 C.C.C. 332; R. v. Steele (1923), 33 B.C.R. 197, aff’d 42 C.C.C. 375; R. v. Redpath (1962), 46 Cr. App. R. 319; R. v. Boucher, [1963] 2 C.C.C. 241; R. v. White, Dubeau and McCullough (1974), 16 C.C.C. (2d) 162; R. v. Basken and Kohl (1974), 28 C.R.N.S. 359; R. v. Flannery, [1969] V.R. 586; R. v, Boyd (1974), 25 C.R.N.S. 381; R. v. Corners and Jones, [1972] 5 W.W.R. 1; Mac-Donald v. The King, [1947] S.C.R. 90; Canning v. The King, [1937] S.C.R. 421; R. v. Parish, [1968] S.C.R. 466; Thomas v. The Queen, [1952] 2 S.C.R. 344; R. v. Kanester (1966), 48 C.R. 352, rev’d 49 C.R. 402; R. v. Boyce (1975), 7 O.R. (2d) 561, referred to]
APPEAL from a majority judgment of the Court of Appeal for British Columbia[1], dismissing an appeal by the appellants from their conviction before Craig J. and a jury on a charge of rape. Appeal dismissed, Laskin C.J. and Spence, Pigeon and Dickson JJ. dissenting.
G.L. Murray, Q.C., and P.D. Messner, for the appelants.
W.G. Burke-Robertson, Q.C., for the respondent.
The judgment of Laskin C.J. and Spence, Pigeon and Dickson JJ. was delivered by
DICKSON J. (dissenting)—This is an appeal from a majority judgment of the Court of Appeal for British Columbia (Maclean and McFarlane JJ.A., Robertson J.A. dissenting) dismissing an appeal by the appellants from their conviction before Craig J. and a jury on a charge of rape. The point in issue is whether the trial judge erred in characterizing certain evidence as being capable of corroborating the story of the complainant. There are few problems more troublesome and difficult for a trial judge than that of deciding what evidence is in law susceptible of corroborative effect and what evidence is not. On the authorities, however, including two decisions of this Court, I think one must conclude that in this case the trial judge erred.
I do not propose to deal with the evidence at length. It reveals that the complainant, Helen Sandy, an 18-year-old native woman, at about noon on May 5, 1973, travelled from the Sugar Cane Reserve, where she lived, to the Town of Williams Lake, a distance of about seven miles. She wandered around the town during the afternoon. According to her evidence, at about 9.00 p.m., upon leaving a bar, she was seized by the three accused, forced into a red Mustang car, and driven to an isolated spot, where an alleged act of intercourse took place in the presence of the three accused and a fourth man. Thereafter, she said, she escaped through the bush and, meeting two friends, reported what had befallen her. According to one of these friends, Diane Buckle the complainant was “very upset” and “crying hard”.
As part of the case for the Crown, an admission of facts, signed by counsel for the appellants was entered as an exhibit:
ADMISSION
At approximately 1.30 a.m. on May 6, 1973, the three accused and a fourth man were together at a dance at a place known as Squaw Hall at the Exhibition Grounds at Williams Lake, in the County of Cariboo, Province of British Columbia.
The accused and the fourth man were questioned and admitted that they had been together at an unstated time earlier in the evening.
The red Mustang vehicle owned by the accused Hanson was parked at the dance but the accused were not occupying it when they were taken in for questioning.
At the conclusion of the trial, the judge charged the jury that the following pieces of evidence were capable of being corroborative of the evidence of the complainant, namely:
1. The written admission of facts.
2. The distraught condition of the complainant when seen by Diane Buckle.
3. The fact that seminal fluid was found in the complainant’s vagina and underclothing.
4. The fact that human scalp hair was found on her jeans and it could have originated from the same source as the seventy human scalp hairs on the appellant Warkentin’s clothing.
5. The finding of pine needles in the complainant’s underclothing.
Section 142 of the Criminal Code (now repealed) required the trial judge, in a case such as this, to instruct the jury that it is not safe to find the accused guilty on the basis of the complainant’s evidence alone in the absence of corroboration, although they are entitled to do so if satisfied beyond a reasonable doubt that her evidence is true. The corroboration to which the section refers is not corroboration in the loose sense of evidence which tends merely to confirm or support the story of the complainant. Section 142 speaks of corroboration (i) “in a material particular” by (ii) evidence that “implicates the accused”.
One finds in two recent decisions of the House of Lords, Director of Public Prosecutions v. Hester[2], and Director of Public Prosecutions v. Kilbourne[3], expressions of opinion to the effect that the word “corroboration” should be treated not as a term of art but as an ordinary word and given its ordinary dictionary meaning. In that sense, corroborative evidence is evidence which serves to give weight to, confirm, or render more probable, other relevant evidence in the case. It is clear, however, that in order to be corroborative within the meaning of s. 142 of the Code the evidence must be on a material point in the case and, above all, it must implicate the accused by connecting or tending to connect him with the alleged offence. This evidence must, of course, also be independent of the acts or words of the complainant, for a witness cannot corroborate herself. The nature of the corroboration will vary according to the offence charged and the particular circumstances of the case and will frequently be circumstantial, as eye-witnesses to the commission of sexual offences are not legion.
In many rape cases, the fact that intercourse has taken place is admitted by the accused and the only issue is whether the woman has consented. In those cases, the evidence said to be corroborative must be that which tends to establish the absence of consent. In contrast, in the present case there were two issues: (i) was the complainant subjected to intercourse without her consent, i.e. was she raped?; (ii) are the accused identified with that intercourse, i.e. did the accused commit the act alleged? In my opinion, corroboration was required on each issue and, if lacking, it was the duty of the judge to instruct the jury to that effect.
As Viscount Dilhorne stated in the Privy Council in James v. The Queen[4], at p. 302:
In sexual cases, in view of the possibility of error in identification by the complainant, corroborative evidence confirming in a material particular her evidence that the accused was the guilty man is just as important as such evidence conforming that intercourse took place without her consent.
I do not think there is to be found in the record in the case at bar any evidence capable of corroborating the allegations of the complainant that she had been raped by the accused. Apart from her story, there was no evidence that the accused participated in the commission of the alleged offence.
I should like now to examine each of the five pieces of evidence which the trial judge considered to be capable of corroborative effect. The first of these, the admission of facts which placed the three accused and a fourth man at a dance hall at some time after the alleged offence and at an unstated time earlier in the evening, is meaningless and irrelevant standing independent of the complainant’s evidence. Ownership of a red Mustang vehicle by one of the accused suffers from the same flaw. This evidence only assumes significance by reason of what has been said by the complainant.
In Kolnberger v. The Queen[5], there was no question but that a rape had taken place. The appeal was concerned solely with the question of the identity of the appellant as the assailant. The complainant described the automobile as one she believed to be an older model Chrysler product, cream or off-white in colour and very dirty. The complainant was shown an automobile which she said she identified as the one in which she had been attacked. This automobile, which belonged to the appellant, was a 1957 Chevrolet, blue body with white top, very dirty both inside and outside. Hall J., with whom Cartwright C.J. and Spence J. concurred, held that although not a jury case, the trial judge had to instruct himself in accordance with s. 134 (now s. 142) of the Code not only as to the fact of the rape but also on the matter of identity. Hall J. said, p. 219:
It is manifest either that he concluded that corroboration was not necessary on the question of identity or, alternatively, that he found he could satisfy himself beyond a reasonable doubt that the complainant’s story (her identification of the appellant) was true from the fact that the appellant offered no explanation or contradiction. In either case, he was in error.
Martland J., with whom Cartwright C.J. and Fauteux J., concurred, said, p. 219:
The only evidence in this case which implicated the appellant was that of the complainant. Her evidence, in that respect, was not corroborated by an evidence which implicated the appellant.
This latter passage is of particular interest having regard to the automobile identification evidence which is common to that case and to the present one. The Court in Kolnberger was unanimous in allowing the appeal and ordering a new trial.
In the earlier case of Hubin v. The King[6], the offence charged was that of carnally knowing a girl under the age of 14 years. After the offence was committed and as the accused was leaving her, the girl made a note of the plate number of his car. She subsequently picked out the car, recognizing it, according to her evidence, by its plate number and by a certain cushion on the seat. The accused admitted he owned a car with a plate number the same as that alleged by the complainant, and that he was driving it on the day in question, but at the city of Winnipeg, which is nearly 20 miles from Lockport, the site of the alleged offence. The question before the Court was whether or not there was evidence upon which corroboration of the complainant’s evidence, as required by s. 1002 of the Criminal Code, as amended 1925 (Can.), c. 38, s. 26, could properly be found. Section 1002 read:
No person accused of an offence… shall be convicted upon the evidence of one witness unless such witness is corroborated in some material particular by evidence implicating the accused.
Anglin C.J., delivering the judgment of the Court said, p. 444:
Since the decision of the Court of Criminal Appeal in R. v. Baskerville, the requirements of the provision now found in s. 1002 admit of no doubt. The corroboration must be by evidence independent of the complainant; and it “must tend to show that the accused committed the crime charged”.
The Hubin case stands for the proposition that evidence relating solely to the identity of the accused but not implicating him in the crime is not sufficient to qualify as capable of corroborative effect. The following well-known passage from the judgment of Chief Justice Anglin commences at p. 444 of the report:
Of most of the matters relied upon by the Crown as implicating the accused, however, it cannot, in our opinion, be safely predicated that they are in evidence independently of the testimony and conduct of the complainant, or that, without her testimony, they “tend to show that the accused committed the crime charged”. This defect affects everything in connection with the alleged implication of the accused because of the admission by him of the ownership and driving, on the morning in question, of the car identified by the complainant as that in which she was taken to the scene of the crime. While the verification of the details given by her no doubt adds to the credibility of the story she tells, everything in that connection, including the admitted facts of ownership and driving (not at or near the scene of the offence, but in and about Winnipeg) depends, for its evidentiary value, upon her statement that a certain license number was that carried by the car in which she was conveyed to the scene of the crime and her subsequent identification of a cushion found in the car bearing that number. This is not, in a proper sense, independent evidence tending to connect the accused with the crime. In themselves these facts and circumstances merely “relate to the identity of the accused without connecting him with the crime”. R. v. Baskerville, [1916] 2 K.B. 658. They implicate the accused solely by reason of the complainant’s statement as to the number of the car and her identification of the cushion in it. Without this additional factor they are quite irrelevant. Nor can any multiplication of such facts amount to corroboration. Thomas v. Jones, [1921] 1 K.B. 22. They are all admissible only by reason of the girl’s own story connecting them with the crime. They lack, therefore, the essential quality of independence.
In R. v. Reardon[7], the trial judge characterized to the jury as evidence which might be considered corroborative, two items identified by the complainant, namely, a car blanket and a $2 bill. The Appellate Court held another view and a new trial was ordered. Reference might also be made to R. v. O’Hara[8] in which the trial judge found possible corroboration in evidence as to the condition of the girl’s clothes and her appearance after the assault, in her identification of the car, and in the finding of certain prophylactic articles and two soiled handkerchiefs at the place where the complainant said the offence had taken place. The British Columbia Court of Appeal held that evidence of this nature was corroborative in the sense that it tended to affirm the credibility of the complainant, but it was not independent evidence and therefore not corroborative within the statutory requirement.
Cases in which the sole issue for determination is consent or no consent of the complainant to the act of sexual intercourse are of little help in deciding a case such as the one at bar where identity is the sole issue. The closest case to that at present before us would seem to be R. v. Ethier[9], a decision of the Ontario Court of Appeal. Mr. Justice Morden delivered the judgment of the Court. In that case, following the alleged offence, the accused drove the complainant home. Upon her arrival there, she told her mother and father what had occurred, giving them the name of the accused and licence number, year and make of the accused’s car. At the trial, she swore that there were foot marks on the ceiling of the car made by her while she was being assaulted and that the interior handle of the left door was missing. The accused, his automobile and clothing all answered the complainant’s description of them. The following passage will be found at p. 334 of the judgment:
However, in the case at bar there were two areas in which corroboration must be sought: (a) the commission of the crime and, (b) the identity of the accused, and evidence which is capable of being confirmatory of the complainant’s evidence in one area may not so qualify in the other. For this reason, where the two issues are present, a trial Judge should be careful to consider whether or not there is evidence which, taken together, is capable of being confirmatory on both issues. If it is capable of being confirmatory in only one area, this should be made plain to the jury.
In Ethier, as here, the trial judge did not distinguish the two issues. He told the jury they might find corroboration in respect of the following (p. 335):
…(1) the human blood, type A, on the accused’s shorts; (2) hair found in the car was similar to the girl’s; (3) the handle on the car was broken; (4) the person who assaulted her was wearing brown pants and a checkered shirt; (5) the licence number of the car; (6) the bruise on her left cheek; (7) the marks on the ceiling of his car; (8) her emotional condition upon arriving at home.
On the issue of the identity of the accused, Mr. Justice Morden said, p. 336:
I have said, many of the matters mentioned by the learned trial Judge depended solely upon her evidence to connect the accused with the alleged crime. I refer to her description of the accused and of his car. The condition of the girl and of her clothing were independently proved, but this evidence was equally consistent with the truth as with the falsity of her story on the issue of identity: Thomas v. The Queen, 103 Can. C.C. at pp. 200-1, (1952), 4 D.L.R. at p. 312, 2 S.C.R. at p. 354. The scientific evidence with respect to the hair found in the car and type of the blood found upon the clothing of the girl and of the accused failed by the same test.
Although one might well consider the evidence of footmarks on the ceiling of the car as affording corroboration, the Court was of opinion that none of the evidence mentioned was capable of corroborative effect and a new trial was ordered.
It would be wrong to conclude from the foregoing phalanx of authorities that corroborative evidence as to identity of an alleged assailant is never available. In an early case, R. v. Steele[10], affirmed by this Court[11], corroboration of the girl’s story was found in the evidence of a witness who saw the girl and the accused dance together at a dancehall, leave the hall separately, then meet outside and walk toward a public park. This witness did not see them enter the park where the girl testified the assault took place. In that case, the evidence described as corroborative came from the testimony of someone other than the complainant. So also in The Queen v. Redpath[12]. The appellant was convicted of indecent assault on a girl aged seven. The evidence of the girl was that she was playing on a moor one afternoon when a man, whom she identified as the appellant, pulled her to the ground and indecently assaulted her. A Mr. Hall, who with his wife was near the edge of the moor, saw a car (later identified as belonging to the appellant’s wife) parked at the edge of the moor and a man, whom he identified as the appellant, walk towards the girl and later return and drive off in the car. Immediately afterwards Mr. Hall saw the girl come from the moor in a very distressed condition. The appellant’s defence was that he had never been near the moor. The trial judge directed the minds of the jury to two issues, saying that they should look for corroboration of the indecent assault and, if they were satisfied that the little girl was indecently assaulted by someone, they should look for corroboration implicating this appellant. Lord Chief Justice Parker had this to say respecting corroborative evidence implicating the appellant, p. 321: So far as corroborative evidence implicating this appellant is concerned, it is abundant, because Mr. Hall, quite apart from claiming to identify the appellant, took the number of the car, which belonged to the appellant’s wife, and that quite clearly—and it is not disputed—was corroboration of the girl’s identification of this appellant.
See also R. v. Boucher[13], at p. 270, as exemplifying a case in which the story of the girl’s mother and the stories of two independent witnesses, taken together, satisfied the requirements of independent corroborative evidence that a crime had been committed and that the accused had committed it.
I return to the present case. The second piece of evidence upon which the trial judge relied as corroborative, the emotionally distraught condition of the girl after the offence, might go to corroborate evidence of non-consent if that were an issue in the case (R. v. White, Dubeau and McCullough[14]; R. v. Basken and Kohl[15]; R. v. Flannery[16]; R. v. Boyd[17]; R. v. Conner s and Jones[18]), but consent or lack of consent is not at issue and I do not think it can be said that evidence in any way implicates the accused.
Thirdly, the presence of seminal fluid no doubt supports the complainant’s story that intercourse took place but it does not serve any other purpose. It does not show that the intercourse was without consent nor does it implicate any of the accused.
The fourth item, the human scalp hair, is in my view of such little probative value as to be incapable of corroborative effect. Corroboration must not be so meagre as to create a mere possibility that the accused committed the crime charged: MacDonald v. The King[19]. All that the evidence amounted to was the finding of a single Caucasian, non-Indian, hair on the slacks worn by the complainant and the finding on Warkentin’s slacks of seventy hairs of Caucasian origin. The expert witness called by the Crown could not say that the single hair and the seventy hairs had come from the same source.
The fifth and final item of evidence which the judge placed before the jury as capable of corroborative effect, the pine needles, fails for many reasons. It does not strengthen nor confirm the evidence of the complainant on any issue.
The five pieces of evidence to which the trial judge referred tended to support the credibility of the complainant and they were no doubt admissible in evidence, but they cannot, in my opinion, be regarded as capable of being corroborative of the complainant’s evidence, within the meaning of s. 142 of the Criminal Code. There is simply no corroborative evidence which links the group (comprising the three accused and a fourth man) or any individual member of the group to the offence. The mere presence of the four men in the Town of Williams Lake on the night of the alleged crime can hardly serve as a nexus entwining the accused with the act of forced intercourse, nor can ownership of a red Mustang by one of the men. The evidence of identity must be such as to place the accused at the scene of the crime, not at some other place in the same town. I entirely agree that items of evidence said to implicate an accused may be looked at collectively and within the total picture of all of the evidence but if, lacking independence, none of the items is capable of corroborative effect, then no accumulation will serve to create that effect.
Before leaving the case, I would refer briefly to the question of jurisdiction. In his reasons for judgment, my brother de Grandpré properly draws attention to the failure to specify the grounds for dissent in the formal judgment of the Court of Appeal, an omission which he feels is fatal to jurisdiction in this Court. Section 606 of the Criminal Code, specifies the requirement as follows:
Where an appeal is dismissed by the court of appeal and a judge of that court expresses an opinion dissenting from the judgment of the court, the formal judgment of the court shall specify any grounds in law upon which the dissent, in whole or in part, is based.
Despite the incomplete nature of the formal judgment, I consider, with due respect for those of contrary view, that this Court has jurisdiction to hear the appeal. Section 618(1)(a) of the Code accords an appeal to any person convicted of an indictable offence “on any question of law on which a judge of the court of appeal dissents”. There is no reference in s. 618(1)(a) to s. 606, and I cannot conclude that it is fatal to an individual’s right to appeal that the formal judgment is irregular.
The issue as to the form of dissent necessary to found jurisdiction was raised in Canning v. The King[20], and left open, even though there was no clear statement of the point or points of law on which the dissent rested in either the formal judgment nor in the notice of appeal and no written reasons for the dissent were given. The situation is very different here, as the points of law on which Robertson, J.A. dissented are clearly set out in his reasons for judgment.
I would allow the appeal, set aside the judgment of the Court of Appeal for British Columbia and direct a new trial. This is not a case in which s. 613(1)(b)(iii) of the Criminal Code can have application to sustain the jury verdict, because one cannot say that the misdirection might not have influenced the jury in reaching the verdict.
The judgment of Martland, Judson, Ritchie and de Grandpré JJ. was delivered by
DE GRANDPRÉ J—The indictment against the three appellants reads:
THAT at or near Williams Lake, in the County and Province aforesaid, on or about the 5th day of May, A.D. 1973, being then and there together, they did unlawfully assault Helen Sandy, a woman not their wife and did have sexual intercourse with her without her consent, thereby committing rape, contrary to the form of the statute in such case made and provided and against the peace of our Lady the Queen, her Crown and Dignity.
A verdict of guilty was entered against all three. On appeal, the following order was pronounced:
THIS COURT DOTH ORDER AND ADJUGE that the Appeal of each of the Appellants from his conviction be and the same is hereby dismissed;
BE IT RECORDED that the Honourable Mr. Justice Robertson dissented from the judgment of the Court as aforesaid and would have allowed the appeal of each of the Appellants and quashed the conviction of each of the Appelants and ordered a new trial.
Although the dissent of Robertson J.A. is recorded, the formal judgment of the Court does not follow the prescription of s. 606 of the Criminal Code which enacts that the formal judgment “shall specify any grounds in law upon which the dissent, in whole or in part, is based”. Inasmuch as the present appeal has been entered as of right because of the dissent (s. 618(1)(a)), it is my view that we have no jurisdiction, the formal judgment not specifying the ground of dissent upon which the appeal is purportedly taken. The point was mentioned in Canning v. The King[21] but the Court did not think it necessary to decide the question (p. 423).
Notwithstanding the foregoing, I now turn to the question of law raised by the dissenting reasons of Roberston J.A. The relevant part of the notice of appeal to this Court reads:
The learned trial judge erred in his application of the principles of law relating to corroboration as disclosed by the charge to the jury in which the learned trial judge instructed the jury that there had been adduced the following pieces of evidence which were capable of corroborating the evidence of the complainant:
(a) The written, admission made at trial on behalf of all three accused in the following words:
“At approximately 1:30 a.m. on May 6, 1973, the three accused and a fourth man were together at a dance at a place known as Squaw Hall at the Exhibition Grounds at Williams Lake, in the County of Cariboo, Province of British Columbia. “The accused and the fourth man were questioned and admitted that they had been together at an unstated time earlier in the evening.
“The red Mustang vehicle owned by the accused Hanson was parked at the dance but the accused were not occupying it when they were taken in for questioning.”
(b) The distraught condition of the complainant when picked up on a roadside by friends and at the time of her speaking to the police and the doctor.
(c) The presence of seminal fluid in the complainant’s vagina and on her panties.
(d) The presence of a human scalp hair of Caucasian origin on her jeans, which was similar to hair found on the clothing of one of the accused.
(e) The presence of pine needles in the crotch of the complainant’s underclothes…
The notice of appeal against conviction by each of the three appellants had put three other grounds before the Court of Appeal:
2. The Learned Trial Judge misdirected the jury on identification.
3. The Learned Trial Judge wrongly admitted into evidence an alleged first complaint.
4. The Learned Trial Judge failed to instruct the jury on the law with respect to aiding and abetting.
The last of these grounds was abandoned by appellants before the hearing took place in the Court of Appeal and the two others were rejected by all three justices. I have found it necessary to refer to this aspect because appellants have alluded to grounds 2 and 3 in the course of their argument. Of course, none of these three grounds is still open for this Court.
The issue of corroboration is the only one before us. Before turning thereto, we must have a look at complainant’s version. Helen Sandy, an 18-year-old native Indian girl, lives a few miles from Williams Lake. About noon, on May 5, she came to the town, did some errands including a visit to a laundromat. She spent some time with her cousin Marlene Chelsea, ending up in a room at the Ranch Hotel with her cousin and her cousin’s husband. Two or three times she wandered over to the Lakeview Hotel looking for friends of hers. She wanted to go to the dance. Eventually, around 9 p.m., near the Ranch Bar, she was grabbed by four men, three of whom are present appellants, who took her a short distance down the street, then forced her up into the back seat of a red Ford Mustang car and drove to a place called Glendale, which is a suburb of Williams Lake, approximately two miles away. On arrival at Glendale, at an isolated spot, one of them pulled her out of the car and threw her on the ground. Two of the accused then held her arms and one, after having undressed her partially, had intercourse with her without her consent while the fourth stood close by laughing. After the act on intercourse, Hanson took her into the bush, said he was going to get some cigarettes and told her that the others would also have intercourse with her if she was still there when he got back. She grabbed her clothes, ran down the road and was picked up by a car containing a friend, Diane Buckle, and George Ross. She was very upset and crying hard. On her return to Williams Lake, a few minutes later, she met another friend and was finally convinced to go to the police. The three appellants were arrested around 1:30 a.m. on May 6. As mentioned in the admission quoted in the notice of appeal, they were together at the time, had been together earlier in the evening and the red Mustang car was parked outside.
As to the first piece of evidence stated by the trial judge to be capable of corroborating complainant’s version, there was, of course, the admission; as to the other four pieces, there was testimony. The only issue before us: do these pieces of evidence have, in the circumstances of the case, a corroborative quality so that the trial judge was right in leaving them to be weighed by the jury?
Apart from that particular issue, the charge meets all the standards evolved over the years. In particular, it underlines: —corroborative evidence must be independent of the complainant (Hubin v. The King[22]);
—there is no corroboration if the testimony is equally consistent with the truth as with the falsity of complainant’s story (Thomas v. The Queen[23]).
Appellants’ basic submission is that for each of the three accused there are three issues, namely intercourse, absence of consent and identity, and that each of the three appellants must be looked at individually. In other words, in the case at bar, there were nine separate issues and there would be misdirection as to corroboration because, as stated in their factum, “in his charge to the jury, the learned trial judge did not distinguish which pieces of evidence were capable of corroborating which particular issue in the case but all the items were lumped together as being generally capable of corroborating the complainant’s story”.
The general principles on the issue of corroboration, especially in the case of a sexual offence, have been reviewed by Ritchie J. in The Queen v. Parish[24], who, at p. 472, adopted the following statement of McFarlane J.A., in his dissenting judgment in the British Columbia Court of Appeal[25], at p. 376:
“I think evidence which may be corroboration of the evidence of a female person in such a case is evidence which may, in law, be considered by the jury as evidence of a material particular implicating the accused in the commission of the crime alleged. A particular is material in this sense if it may, in the opinion of the jury, show or tend to show that the testimony of the female person that the offence was committed and committed by the accused is true, thus being relevant to the issue which the jury is called upon to decide. That issue in this case was simply whether or not there was an act of sexual intercourse. To be capable of being c