Thiffault v. The King, [1933] SCR 509

Supreme Court of Canada

Thiffault v. The King, [1933] S.C.R. 509

Date: 1933-05-22.

Donat Thiffault Appellant;

and

His Majesty The King Respondent.

1933: May 8; 1933: May 22.

Present: Duff C.J. and Rinfret, Smith, Cannon and Crocket JJ.

ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Criminal law—Statements made by accused in the presence of several police officers, who were not produced as witnesses—Admissibility in evidence of such statements—Inquiry by trial judge as to voluntary character of—Not a mere matter of discretion for trial judge—Declaration by accused as to previous arrest.

The Court, reversing the judgment of the Court of King’s Bench, appeal side, quashed a conviction for murder and granted a new trial, on the ground that a statement in writing alleged to have been made by the appellant to certain police officers has been improperly received in evidence upon his trial. Sankey v. The King ([1927] S.C.R. 436) foll. and Rex v. Seabrooke (58 C.C.C. 323) ref.

Determination of any question raised as to the voluntary character of a statement by an accused elicited by interrogatories administered by police officers is not a mere matter of discretion for the trial judge. Where such a statement is elicited in the presence of several officers, the statement ought, as a rule, not to be admitted unless (in the absence of some adequate explanation of their absence) those who were present are produced by the Crown as witnesses, at least for cross-examination on behalf of the accused; and, where the statement professes to give the substance of a report of oral answers given by the

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accused to interrogatories, without reproducing the questions, then the written report ought not to be admitted in evidence unless the person who is responsible for its compilation is (here again in the absence of some adequate explanation of his absence) called as a witness.

Upon the evidence, although the document was read over to the appellant before he signed it, it was not, in one most important particular, a correct statement of what the accused appellant said and intended to say. Moreover the statement made by the accused in this case contained a declaration that he had been once arrested “for a fight * * * and I had paid the costs.” The fact that the accused had been arrested for a criminal offence and had paid “the costs” could not be competent evidence—not only on the ground that the fact itself would be in law wholly irrelevant, but on account of the unfair prejudice to the accused which would be the likely effect of the reception of evidence of it; and a document professing to embody admissions obtained as the admissions of the accused were in this case, which included a record of an admission of a fact that would be inadmissible against him, and which was calculated to prejudice him, could not properly be received in evidence. It might in a proper case be used by a witness to refresh his memory; but the use of the document itself as evidence could not be justified.

APPEAL from the judgment of the Court of King’s Bench, appeal side, province of Quebec, upon leave to appeal granted by this Court[1], sustaining the conviction of the appellant, on his trial before Laliberté J. and a jury, on a charge of murder. The grounds of appeal, and the material facts of the case bearing on the points dealt with by this Court, are sufficiently stated in the judgment now reported. The appeal was allowed; the conviction was quashed, and a new trial ordered.

Lucien Gendron K.C. and Leopold Pinsonnault for the appellant.

V. Bienvenue K.C. and P. Biguë K.C. for the respondent.

The judgment of the court was delivered by

Duff C.J.—This appeal raises a question as to the admissibility in evidence, upon the appellant’s trial for murder, of a statement in writing alleged to have been made by him to certain officers of the provincial police of Quebec.

The indictment charged

Que le ou vers le 4 mars 1932., en la paroisse de Ste.-Thècle, district des Trois-Rivières, Donat Thiffault, de la dite paroisse de Ste-Thècle, dit district, s’est rendu coupable de l’acte criminel qualifié meurtre, en mettant et faisant mettre volontairement le feu à sa maison d’habitation,

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dans la dite paroisse de Ste-Thècle, laquelle maison fut incendiée, avec l’intention de causer la mort de Bertha Gervais, son épouse, et en causant par là effectivement la mort de la dite Bertha Gervais, sa dite épouse, qui. mourut dans le dit incendie. Le tout sans justification ni excuse et contrairement au code criminel canadien et ses amendements.

As we have come to the conclusion that there must be a new trial, our references to the facts will be limited to such as appear to be necessary to make clear the considerations affecting the points in dispute.

The appellant, at the time of the burning of his house on the night of the 3rd and 4th of March, 1932, was living alone in the house with his wife and one of his sons. His wife was sleeping upstairs. It was an important part of the case for the Crown that the fire which caused her death did not originate in the wood stove in the first story or in the furnace in the cellar. Witnesses were called who stated that the cellar was cold and that it was evident that the furnace had not been heated that night. There was a fire of no importance in the wood box beside the stove in the first storey, but that was easily and quickly extinguished. The fire in which Mrs. Thiffault lost her life in the second storey was, the Crown contended, and witnesses deposed, an independent fire which had originated in that storey where there was no stove or other heating apparatus.

The evidence adduced by the Crown consisted very largely of accounts of various instances of suspicious conduct and of incriminating statements of the accused himself. These, the Crown contended, pointed to a determination to burn the house in order to collect the insurance money and to get rid of his wife. A good deal was made of an incident in which his wife was said to have charged him with attempting to get her to drink ether. Much was also made of a conversation which was alleged to be, in effect, a proposal of marriage by the accused a few days before the fire accompanied by a prediction that he would soon be a widower.

In view of the nature of the case made by the Crown, the written statement received in evidence was plainly calculated to incriminate the appellant as shewing that he had given a false account of the origin of the fire, and as admitting that he entertained projects of marriage soon after his wife’s death and that he was about to leave the province when he was detained by the police. The admission

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that the house which he had insured for $1,500 was bought for $800 and that he had received $3,500 as the result of a fire two years before was also gravely compromising, in view of the evidence adduced by the Crown of conversations in which he had spoken of insurance as a very useful thing and had said that his brother had profited by insurance to the extent of $16,000.

The text of the document objected to is as follows:

Ma femme était couchée en haut, dans la nuit du 3 au 4 mars 1932, ainsi que mon fils Florent Thiffault. Je me suis aperçu du feu vers 1.00 hr. du matin. La boucane m’a réveillé, j’ai traversé de ma chambre à la cuisine et j’ai ouvert la porte pour crier: “Au feu”. En partant pour monter en haut, mon garçon est tombé en bas dans l’escalier, je l’ai ramassé dans l’escalier et jeté dehors. Il avait une épaule démanchée et la tête fendue. Le Dr. Aubin en a pris soin. C’est le seul qui était couché en haut. Un nommé Magnan est arrivé avec un extincteur. Quand on a vu qu’on ne pouvait pas sauver en haut, nous avons sauvé le ménage en bas. J’ai acheté un gallon d’éther à Shawinigan mais je ne connais pas qui me l’a vendu. Mon épouse a fait analyser l’éther par le Dr. Aubin de Ste-Thècle. Le soir du feu, je suis allé chez Magnan (Charles). (Je veux parler de la soirée précédant le feu), je suis entré chez Anselme Baril et Philomène Béland, vers 6.30 ou 7 hrs. je suis parti vers 9 hrs. moins quart. Ensuite je suis allé chez Davidson, le barbier, j’ai veillé là jusqu’à 10.30 avec Alexandre Moisan. Là, je suis parti à la maison.

La cause du feu est un feu de fournaise, la fournaise chauffait au bois. Le feu était pris le long du tuyau en montant. La dimension de la maison en dehors 26 pieds carrés, en bas de la maison il y avait 4 appartements. En haut, 4 appartements et un passage.

J’ai retiré $1,500.00 d’assurances sur la maison et $1,700.00 sur le ménage. J’étais assuré pour le feu par M. A. I. Gravel, de Trois-Rivières. L’assurance a été prise par M. Arthur Guillemette, de Ste-Thècle. J’étais assuré depuis quatre ans. Ça fait un an que j’ai cette maison et j’ai continué à payer les assurances pour le feu. J’ai payé la maison $800.00 et elle était assurée pour $1,500.00 J’ai déjà passé au feu à Ste-Thècle il y a 2 ans; j’ai reçu $3,500.00 d’assurances. J’avais été assuré par M. M. Guillemette et Gravel. Je n’ai jamais été arrêté pour vol ni pour vente de boisson; j’ai été arrêté une fois pour bataille à Harvey Jonction et j’ai payé les frais. Je n’ai jamais proposé à une femme que nous pourrions nous marier prochainement alors que ma femme vivait. Personne n’a brisé de vitres ou enfoncé la porte pour entrer dans la maison lors du feu alors que j’étais dans la cuisine. Je devais rencontrer Mme Emile Comeau, le 21 juillet, pour question de mariage mais quand j’ai vu le détective à Ste-Thècle, j’ai vu qu’il se brassait quelque chose et je ne me suis pas rendu chez Mme Comeau et j’avais décidé de partir pour Hertz, Ontario, le 25 juillet; je n’ai pas mis mon projet à exécution parce que la police est venu me chercher. C’est moi qui ai fait du feu dans la fournaise le dernier et il était environ 10.30 p.m. j’ai fait un feu de bois et la fournaise était dans la cave. Un “drum” à gazoline servait de fournaise, et je ne suis pas descendu dans la cave entre minuit et une heure; je n’ai pas entendu crier ni plaindre ni ma femme ni mon fils, et j’ai signé.

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The circumstances in which the document was procured are these: The coroner on the adjournment of the inquest on the 23rd of July directed Mitchell, a provincial constable, to arrest and detain the accused as a material witness. The accused was, accordingly, taken into custody at Ste. Thécle and was conducted by Tremblay, the deputy chief of detectives, accompanied by Mitchell, to Quebec. He was there detained at the quarters of the provincial police until the following morning, when, in the presence of Tremblay and Mitchell and one Chouinard, a clerk, he was interrogated by the chief of detectives Lemire. It is quite evident, from the record made, that Lemire’s questions were directed, not only to ascertaining the connection of the accused with the fire in which his wife lost her life, but also to obtaining admissions of damaging facts in his past history. It was obviously on the face of it an interrogation for the purpose of procuring admissions which could be used in evidence against the accused. A record of what the accused said was drawn up by Chouinard as the examination proceeded, and this was afterwards read over to the accused, who signed it.

Although the summary compiled by Chouinard and signed by Thiffault is expressed in the first person, it is not a verbatim report of what occurred. The questions are not given and the summary could only be, at best, on the face of it, a statement of Chouinard’s interpretation of the substance of the answers to the interrogatories administered.

There are two decisive objections to the admission of the document.

First, the evidence points to the conclusion that, although the document was read over to him before he signed it, it is not a correct statement of what the accused said and intended to say. Admittedly, there is one most serious error. It was part of the Crown’s case against him that he had procured ether for the purpose of putting into effect some noxious design against his wife. Being interrogated as regards his possession of ether, his answer was that he had bought, as he thought, whisky, and had discovered afterwards that they had given him ether. The signed statement not only disregards the explanation, but converts the explanation into an admission that he had purchased ether

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—an admission most material to support the case for the Crown. In view of this admitted mis-statement of what the accused had said, it seems to us to be quite plain that the document containing it ought not to have been admitted, at all events in the absence of explanation by Chouinard, who had compiled it.

There is a cognate objection which, apart from everything else, seems to establish the inadmissibility of the document. It contains a declaration that the accused had been once arrested “pour bataille * * * et j’ai payé les frais.” The fact that the accused had been arrested for a criminal offence and had paid “les frais” could, of course, not be competent evidence—not only on the ground that the fact itself would be in law wholly irrelevant, but on account of the unfair prejudice to the accused which would be the likely effect of the reception of evidence of it; and we think that a document professing to embody admissions obtained as the admissions of the accused were, which includes a record of an admission of a fact that would be inadmissible against him, and which was calculated to prejudice him, could not properly be received in evidence. It, no doubt, might in a proper case be used by a witness to refresh his memory; but the use of the document itself as evidence could not be justified.

The second objection is on the ground that the voluntary character of the statement signed by the accused has not been established. The law governing the decision on the point raised by this objection was stated in a judgment of this Court in Sankey v. The King[2], in the course of which it was said,

We feel, however, that we should not part from this case without expressing our view that the proof of the voluntary character of the accused’s statement to the police, which was put in evidence against him, is most unsatisfactory. That statement, put in writing by the police officer, was obtained only upon a fourth questioning to which the accused was subjected on the day following his arrest. Three previous attempts to lead him to “talk” had apparently proved abortive—why, we are left to surmise. The accused, a young Indian, could neither read nor write. No particulars are vouchsafed as to what transpired at any of the three previous “interviews”; and but meagre details are given of the process by which the written statement ultimately signed by the appellant was obtained. We think that the police officer who obtained that statement should have fully disclosed all that took place on each of the occasions when he “interviewed” the prisoner; and, if another policeman was present,

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as the defendant swore at the trial, his evidence should have been adduced before the statement was received in evidence. With all the facts before him, the learned judge should form his own opinion that the tendered statement was indeed free and voluntary as the basis for its admission, rather than accept the mere opinion of the police officer, who had obtained it, that it was made “ voluntarily and freely.”

It should always be borne in mind that while, on the one hand, questioning of the accused by the police, if properly conducted and after warning duly given, will not per se render his statement inadmissible, on the other hand, the burden of establishing to the satisfaction of the court that anything in the nature of a confession or statement procured from the accused while under arrest was voluntary always rests with the Crown. (The King v. Bellos[3]; Presko v. The King[4]. That burden can rarely, if ever, be discharged merely by proof that the giving of the statement was preceded by the customary warning and an expression of opinion on oath by the police officer, who obtained it, that it was made freely and voluntarily.

This judgment was applied, and rightly applied we think, by the Court of Appeal for Ontario in Rex v. Seabrooke[5]. It results from this statement of the law that the determination of any question raised as to the voluntary character of a statement by the accused elicited by interrogatories administered by the police is not a mere matter of discretion for the trial judge, as the court below appears to have thought. Where such a statement is elicited in the presence of several officers, the statement ought, as a rule, not to be admitted unless (in the absence of some adequate explanation of their absence) those who were present are produced by the Crown as witnesses, at least for cross-examination on behalf of the accused; and, where the statement professes to give the substance of a report of oral answers given by the accused to interrogatories, without reproducing the questions, then the written report ought not to be admitted in evidence unless the person who is responsible for its compilation is (here again in the absence of some adequate explanation of his absence) called as a witness.

In the present case there are exceptionally powerful reasons for applying these rules strictly. The Deputy Chief of Detectives Tremblay who accompanied the accused from Ste. Thècle with Mitchell and was present throughout the interrogatories was not produced. Mitchell was called but only after the document had been admitted. No explanation is proffered of the absence of Tremblay. As to

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the clerk Chouinard, it was especially important that his evidence should be before the court, because, first, as already observed, the statement written by him was in reality a summary of what he judged to be the substance of the answers given by the accused; and second, because of the proved inaccuracy of the statement in one most important particular.

We can entertain no doubt that, upon the principle elucidated in the judgment of this Court in Sankey v. The King (1), the admission of this document cannot be supported.

We were asked to dismiss the appeal upon the ground that, even if not strictly admissible, the document added nothing to the weight of the evidence supplied from other sources. We are not satisfied that no substantial wrong, within the meaning of sec. 1014 (2) of the Criminal Code, has occurred in virtue of the improper reception of this document. We are unable to reach the conclusion that, to use the language of the Judicial Committee in Makin v. A.G. for N.S.W. (2), that

it is impossible to suppose that the evidence improperly admitted * * * can have had any influence on the verdict of the jury.

The conviction must be quashed and, in the circumstances, we think there should be a new trial.

Appeal allowed and new trial ordered.