Wild v. The Queen, [1971] SCR 101

Supreme Court of Canada

Wild v. The Queen, [1971] S.C.R. 101

Date: 1970-03-19

Peter Kennedy Wild Appellant;

and

Her Majesty The Queen Respondent.

1969: November 7; 1970: March 19.

Present: Cartwright C.J. and Fauteux, Abbott, Mart-land, Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Criminal law—Evidence—Reasonable doubt—Criminal negligence causing death—Motor vehicle—Acquittal at trial because of doubt as to identity of driver—Question of fact or question of law—Criminal Code, 1953-54 (Can.), c. 51, ss. 221(1), 584(1).

After consuming a large quantity of beer and liquor, the appellant got in his car with three friends. He says that he was then drunk, and that from that time he remembers nothing until he awoke in hospital the next morning. The evidence establishes that the car proceeded on a wild ride at a speed of 70 to 80 miles an hour and finally struck a metal power pole. The right side of the car was almost demolished. The car swung around, clockwise, through an arc of about 180 degrees. All the occupants were killed other than the appellant who was found behind the steering wheel, which was badly bent. His left leg was to the left of the steering column and pinned between the dashboard and the floor so completely that he could only be released by the use of an hydraulic jack. One of the occupants was found lying in the back seat and the other two, in the right front portion of the car, one on top of the other. The appellant was charged with criminal negligence causing death, under s. 221(1) of the Criminal Code. After a trial without a jury, the trial judge acquitted the appellant on the ground that he was not satisfied beyond a reasonable doubt that the appellant was driving the car. The Court of Appeal set aside the acquittal. On appeal to this Court, the appellant contended that the decision of the trial judge was on a question of fact, and did not involve a question of law, so that the Court of Appeal was not acting within its jurisdiction as defined in s. 584(1) of the Criminal Code.

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Held (Cartwright C.J. and Hall and Spence JJ. dissenting): The appeal should be dismissed.

Per Fauteux, Abbott, Martland and Judson JJ.: The trial judge failed properly to apply the rule in Hodge’s case, to the facts before him in that he acquitted the appellant not because he found that there was a rational conclusion on the facts inconsistent with his guilt, but because there was, in his opinion, a conjectural conclusion which he considered might be inconsistent with his guilt. This involved an error on a question of law alone. The trial judge, in considering the facts to which he referred, failed to appreciate their proper effect in law, in that he did not distinguish between a conjectural possibility, arising from those facts, and a rational conclusion arising from the whole of the evidence. No other conclusion could be reached on the evidence than that the appellant was driving at the material time.

Per Ritchie J.: The trial judge misapplied the rule in Hodge’s case as restated in this Court in The Queen v. Mitchell,  [1964] S.C.R. 471, in that instead of seeking to determine whether the circumstantial evidence disclosed “any other rational conclusion” inconsistent with the appellant’s guilt, he based his decision on “a matter of conjecture”. In so doing he erred in law and his decision was accordingly properly reviewable under s. 584 of the Criminal Code.

Per Pigeon J.: This case was correctly decided in the Court of Appeal. This is in accordance with the ratio of the judgment in Belyea et al. v. R., [1932] S.C.R. 279.

Per Cartwright C.J., dissenting: The only ground stated in the notice of appeal was that the trial judge misdirected himself in law in ordering an acquittal as there was no evidence on the basis of which a reasonable doubt could arise as to the appellant’s guilt. An appeal based on a ground so stated is foredoomed to failure unless the decision in Lampard v. R., [1969] S.C.R. 373, is disregarded. It appears too clear for argument that the decision of the trial judge proceeded on a ground of fact and certainly not a ground of law alone in the strict sense. The question whether from certain proved primary facts the inference should be drawn that the appellant was driving the automobile which caused the fatality was a pure question of fact.

Per Hall J., dissenting: This appeal by the Crown did not involve a question of law alone as required

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by s. 584(1) (a) of the Code. The inference to be drawn from the proven facts was a pure question of fact.

Per Spence J., dissenting: If there is evidence upon which a trial judge may find that there could be another rational conclusion then whether or not that evidence would have been sufficient to cause a Court of Appeal to reach a like conclusion is irrelevant. The task of determining the rationality of another conclusion if evidence exists is for the trial Court judge, and any weighing of that evidence in a Court of Appeal is engaging in consideration of something other than a question of “law alone”. In the present case, there was a considerable body of evidence which the trial judge could have and should have considered in determining whether there might have been any other rational conclusion than that the accused drove the vehicle. That evidence shows that it was possible, time after time, for there to have been a change in the identity of the operator of the vehicle. Once there is evidence it is the trial judge’s duty and his duty alone to determine whether another conclusion is a rational one. The judgment of the Appellate Division could only have been reached by a weighing of the evidence in order to determine whether other conclusions were rational, and such a course is beyond the jurisdiction of the Appellate Division as provided in s. 584(1) (a) of the Code.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], setting aside the appellant’s acquittal on a charge of criminal negligence causing death. Appeal dismissed, Cartwright C.J. and Hall and Spence JJ. dissenting.

Donald H. Bowen, Q.C., and John M. Hope, for the appellant.

J.W.K. Shortreed, Q.C., for the respondent.

THE CHIEF JUSTICE (dissenting)—This appeal is brought, pursuant to s. 597(2)(a) of the Criminal Code, from a unanimous judgment of the Appellate Division of the Supreme Court of Alberta¹ which allowed an appeal from the judgment of acquittal of the present appellant on a charge of criminal negligence causing death pronounced by Dechene J. after trial without a jury.

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The relevant facts are set out in the reasons of my brothers Martland and Spence, which I have had the advantage of reading, and do not require repetition.

At the conclusion of his oral judgment, the learned trial Judge summarized the ground on which he acquitted the appellant as follows:

What can happen to the occupants of a vehicle which comes to such a sudden stop, is, I think, a matter for conjecture. Mr. Stainton invites me to apply whatever little knowledge I have of the laws of physics and the principle of inertia, to find that the accused could not have been in the back seat immediately before. I must consider the fact that there were two people in that back seat immediately before, the position of the back of the seat on the driver’s side, particularly to the smashed condition of the steering wheel and the fact that there is no evidence of injury to the accused’s head, face or chest. The first doctor, Dr. McCurry after looking at the three other men, only glanced at the accused for thirty seconds or so and decided that he did not require medical treatment. Those facts do not enable me to say that I am satisfied beyond a reasonable doubt that the accused was driving the car because there are certain things, while it is probable he was driving, there are these factors which make it, although not likely, but possible that someone else was at the wheel. The accused is, therefore, entitled to the benefit of that doubt which I entertain.

Counsel instructed by the Attorney General appealed to the Appellate Division pursuant to s. 584(1) of the Criminal Code which reads as follows:

584. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone,

The only ground stated in the notice of appeal was as follows:

The learned trial Judge misdirected himself in law in ordering an acquittal as there was no evidence

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on the basis of which a reasonable doubt could arise as to the respondent’s guilt.

It appears to me that unless we are to disregard what has recently been said by this Court in Lampard v. The Queen[2], an appeal based on a ground so stated was foredoomed to failure. I refer particularly to the following passage in the reasons concurred in by a majority of the Court at pages 380 and 381:

It has often been pointed out that where a trial judge makes findings of primary facts and draws an inference therefrom an appellate tribunal is in as good a position as was the trial judge to decide what inference should be drawn, but in drawing the inference the Court is making a finding of fact. In the case of an appeal at large the Court of Appeal has, of course, power to substitute its view, as to what inference should be drawn, for that of the trial judge, but where, as in the case at bar, the jurisdiction of the Court of Appeal is limited to questions of law in the strict sense it has no such power.

When the onus of establishing a certain fact lies upon a party it may be a question of law whether there is any evidence (as distinguished from sufficient evidence) to prove that fact. In the case at bar the onus was, of course, upon the Crown to prove that the appellant did the acts complained of with the guilty intention specified in the section. If the learned trial Judge erred in finding that that onus had not been satisfied, his error was one of fact, certainly not one of law in the strict sense. The applicable principles are clearly set out in the reasons of my brother Ritchie giving the judgment of the majority of this Court in the Sunbeam case, supra, and it is not necessary to repeat them.

In a criminal case (except in the rare cases in which a statutory provision places an onus upon the accused) it can sometimes be said as a matter of law that there is no evidence on which the Court can convict but never that there is no evidence on which it can acquit; there is always the rebuttable presumption of innocence.

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I find nothing in the reasons of my brother Judson in the Lampard case, which were concurred in by my brother Spence, to throw any doubt on the accuracy of the passage just quoted. Lampard was a case where all the evidence of guilty intent was circumstantial; it pointed very clearly to the existence of the intent alleged by the Crown and there was no evidence in the record to suggest any other intent. My brother Judson dealt with the matter as follows at page 382:

The appellant here submits that if there was error in the judgment at trial, which he does not admit, it is error in fact.

The basis of the judgment of the learned trial judge, who was sitting without a jury, was that the trading activities of the appellant did not indicate to him beyond a reasonable doubt that they were carried out ‘with intent to create a false or misleading appearance of active public trading in a security’. On the other hand, a unanimous Court of Appeal thought that the inference that there was such intent was irresistible.

I agree with this conclusion of the Court of Appeal but we are still left with the question whether the error was one of fact or law. I am compelled by the majority judgment of this Court delivered in Sunbeam Corporation of Canada Ltd. v. The Queen to hold that the error—and I am sure that it was error—was one of fact. The appeal therefore succeeds.

In the case at bar the learned trial judge instructed himself accurately as to the rule in Hodge’s case[3], which is after all only an example of the application of the rule that an accused can be convicted of a criminal offence only if the tribunal is satisfied of his guilt beyond a reasonable doubt, and then found that he was not so satisfied. I agree with my brother Spence that there was in the case before us evidence to raise a doubt as to whether the appellant was driving the car at the time of the fatality, notably the condition of the steering wheel and the absence of injuries to the appellant’s chest, but I regard that as irrelevant. With the greatest respect to those who entertain a contrary view it appears to me to be too clear for argument that the

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decision of the learned trial judge proceeded on a ground of fact and certainly not a ground of law alone in the strict sense.

When an appeal from a conviction of an indictable offence is taken to a provincial Court of Appeal that Court has power, under s. 592 (1) (a) (i), to allow the appeal if it is of opinion that “the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence”; but that Court has no corresponding power in an appeal from an acquittal. In such an appeal it is limited to questions of law in the strict sense.

The question whether from certain proved primary facts the inference should be drawn that the appellant was driving the automobile which caused the fatality was, in my view, a pure question of fact.

I would allow the appeal, set aside the judgment of the Appellate Division and restore that of the learned trial judge acquitting the appellant.

The judgment of Fauteux, Abbott, Martland and Judson JJ. was delivered by

MARTLAND J.—This is an appeal from the unanimous judgment of the Appellate Division of the Supreme Court of Alberta[4] which allowed an appeal by the Crown from the decision of the learned trial judge to acquit the appellant on a charge of criminal negligence, causing death.

The facts are not in dispute. On May 28, 1968, the appellant, with three friends, proceeded in his car to the Corona Hotel, in Edmonton, at about 7:45 p.m., and each consumed 16 glasses of beer. They proceeded from there to a bar, known as the Beachcomber, where the appellant consumed more beer, and the others drank liquor. They left the bar at about 11:30 p.m. The appellant says that he was then drunk.

They proceeded to the appellant’s car and got in. The appellant says that from that time

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he remembers nothing until he awoke in hospital at about 5 a.m. on May 29.

The evidence establishes that the car proceeded on a wild ride around some portions of the City. During the course of this, the driver of the appellant’s car became annoyed at the driver of another car, threatened him, and later swerved into that car. Subsequent to this encounter, the appellant’s car proceeded east on 112 Avenue, at a speed, estimated by one witness, of 70 to 80 miles an hour. The car then, at least partially, mounted the curb, proceeded a distance of 42 feet 4 inches with its right wheels over the curb and its left-hand wheels on the highway, when the right front end violently struck a solid metal power pole, bending it substantially. It left a “side skid mark” on the highway, not a braking skid mark, of 44 feet. The right side of the car was almost demolished. In the collision, the car swung around, clockwise, through an arc of about 180 degrees.

All of the occupants of the car were killed, as a result of the collision, other than the appellant. He was found behind the steering wheel, which was badly bent. His face was covered with blood. His left leg, which was to the left of the steering column, was pinned between the dashboard and the floor to such a degree that he could not be freed until a fireman had used an hydraulic jack unit to raise up the dashboard.

One of the other occupants of the car was found lying in the back seat. The other two were found in the right front portion of the car, hanging from the vehicle on to the pavement, one on top of the other.

The learned trial judge said that he had no difficulty in finding that the driver of the appellant’s vehicle was guilty of criminal negligence. He acquitted the appellant because he said he was not satisfied beyond a reasonable doubt that the appellant was driving the car at the time of the collision because, while it was probable that he was the driver, certain factors made it “although not likely, but possible that someone else was at the wheel.”

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It is desirable to cite that part of his judgment which deals with this issue:

The difficulty I have is regarding the identity of the driver, his identification. It is well established and we know that it was his car that was involved; we know that he was driving it earlier that evening, and we know that he was found behind the steering wheel on the driver’s side with his left leg pinned under the dashboard. Usually that would be sufficient. However, we have here a situation where a number of people have seen this car immediately or in a few minutes before the accident and not one of them can identify the driver. The driver himself does not remember what happened from the time he got into the car after leaving the Beachcomber Restaurant on the last fatal trip of that motor vehicle. It is probable that the accused was the driver.

The circumstances and the findings which I have just made, are circumstantial and I can only find that he was the driver if those circumstances are not only consistent with his guilt but inconsistent with any other reasonable explanation. Is there another reasonable explanation? The evidence is not very complete.

With relation to the altercation between Greenough and the accused on 107th Avenue when the driver of the motor vehicle got out while the vehicle was stopped for a red light, spoke to Greenough and then returned to his car, it is my view that at that point there was an opportunity to change drivers. There had been one, of course, earlier on when they left the Beachcomber Restaurant.

The impact which followed the crash, the collision with the power pole, was such that as we look at the photographs, the car was demolished. We also know that the car turned on itself in a clockwise fashion so that it was facing southwest, practically in the same direction from which it had come.

What can happen to the occupants of a vehicle which comes to such a sudden stop, is, I think, a matter for conjecture.

Mr. Stainton invites me to apply whatever little knowledge I have of the laws of physics and the principle of inertia, to find that the accused could not have been in the back seat immediately before. I must consider the fact that there were two people in that back seat immediately before, the position of the back of the seat on the driver’s side, particularly to the smashed condition of the steering wheel and the fact that there is no evidence of injury to

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the accused’s head, face or chest. The first doctor, Dr. McCurry after looking at the three other men, only glanced at the accused for thirty seconds or so and decided that he did not require medical treatment. Those facts do not enable me to say that I am satisfied beyond a reasonable doubt that the accused was driving the car because there are certain things, while it is probable he was driving, there are these factors which make it, although not likely, but possible that someone else was at the wheel.

Dealing with this conclusion, and after reviewing the evidence on which the learned trial judge had relied in forming an opinion that it was possible that the appellant had not been driving, at the time of the accident, the judgment of the Appellate Division reads as follows:

…In my view the evidence referred to amounts to no more than conjecture or surmise that this was the course of events. It seems clear to me that the trial judge’s doubt as to whether the Respondent was the driver has “no evidence to support it” and “lacks factual support” just as much as the contention in Regina v. Torrie, 50 C.R. 300, that the tire of Torrie’s car may have been cut by a sharp object thrown against it by some other traffic was found to be without any evidence to support it. See also The Queen v. Lemire (1965) S.C.R. 174, Martland J., concurred in by Fauteux, Abbott, and Ritchie JJ. at pp. 191, 192.

I agree with and consider that the following statement of Evans J.A. for the Court of Appeal of Ontario in Regina v. Torrie (supra) at page 303 is applicable to the case at bar. That statement is as follows:

“With the greatest respect, I am of the opinion that the learned trial judge misapplied the rule in Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136, as to circumstantial evidence in that he based his finding of reasonable doubt on nonexistent evidence. In Regina v. Mclver, (1965) 1 O.R. 306 at 309, (1965) 1 C.C.C. 210, McRuer C.J.H.C. said:

‘The rule (in Hodge’s Case) makes it clear that the case is to be decided on the facts, that is,

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the facts proved in evidence and the conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts. No conclusion can be a rational conclusion that is not founded on evidence. Such a conclusion would be a speculative, imaginative conclusion, not a rational one.’

This statement was approved on appeal to this Court, (1965) 2 O.R. 475, 45 C.R. 401 (1965) 4 C.C.C. 182 and an appeal therefrom to the Supreme Court of Canada was dismissed (1966) S.C.R. 254, 48 C.R. 4, (1966) 2 C.C.C. 289.

I recognize that the onus of proof must rest with the Crown to establish the guilt of the accused beyond a reasonable doubt, but I do not understand this proposition to mean that the Crown must negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.”

In my view the contention that the Respondent may not have been driving at the time of the accident is, to borrow the words of Evans J.A. in Regina v. Torrie (supra) “conjecture” and is “fanciful”. In my opinion no other conclusion could be reached on the evidence than that the Respondent was driving at the material time.

The issue before this Court is as to whether the Appellate Division, in reaching this conclusion, was acting within its jurisdiction as defined in s. 584(1) of the Criminal Code, which permits an appeal by the Attorney General against a judgment of acquittal “on any ground of appeal that involves a question of law alone.” The contention of the appellant is that the decision of the learned trial judge was on a question of fact, and does not involve a question of law.

In the Lemire case[5], to which reference was made in the reasons of the Appellate Division, quoted above, it was stated, in this Court, that on an appeal from a conviction, if an appellate court allows the appeal on the ground that certain specified evidence creates a reasonable doubt as to the guilt of the accused, when, on a proper view of the law, that evidence is not capable of creating any doubt as to his guilt, there is an error

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of law. In my opinion, that proposition applies equally in a case in which a trial judge, in his reasons, finds that certain specified evidence creates a reasonable doubt as to the guilt of the accused, when, on a proper view of the law, that evidence is not capable of creating any doubt as to his guilt.

In my opinion the ground of appeal to the Appellate Division did involve a question of law alone. That question is as follows:

Did the learned trial judge err in law in his application of the rule in Hodge’s Case, (1838) 2 Lewin 227, 168 E.R. 1136, to the facts of this case?

The learned trial judge summarized the effect of the rule. Stated in full the rule in Hodge’s case[6] is as follows:

Alderson B., told the jury, that the case was made up of circumstances entirely; and that, before they could find the prisoner guilty, they must be satisfied, “not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person.”

Unlike a jury trial, we have the advantage here of knowing, from the judge’s own words, whether he properly applied the rule in the circumstances of the present case. He clearly found that the circumstances were such as to be consistent with the appellant’s having been the driver of the car. He said that it was probable that the appellant was the driver. The other issue which he was required to determine was whether the facts were consistent with any rational conclusion other than that the appellant was the driver.

The vital circumstance in this case, which is barely mentioned by the learned trial judge, is that the person who was found behind the wheel of the car after the accident was pinned in that position so completely that he could only be released by the use of an hydraulic jack. The pinning in that position must have occurred immediately

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upon the violent impact which occurred when the car struck the power pole. The theory propounded on behalf of the appellant involved the proposition that, following that violent impact, with the car turning in a clockwise direction (which would result in the passengers’ being subject to a force carrying them toward their right, as illustrated by the position of two of the bodies after the accident), the appellant was hurled out of the back seat into the driver’s position on the left-hand side of the front seat, that he landed there in a sitting position, with his left leg to the left of the steering column, and that then, and only then, he was pinned into position.

In his reasons, the learned trial judge says that:

What can happen to the occupants of a vehicle which comes to such a sudden stop, is, I think, a matter for conjecture.

On the facts of this case, however, the issue to be determined was whether, in the light of the appellant’s having been pinned behind the wheel, there was any rational conclusion, on the evidence, other than that the appellant was the driver of the car at the time of the accident. He did not find that there was such a rational conclusion. What he did was to conjecture that the appellant might have been riding as a passenger in the back seat and, if so, might have been thrown into the front seat on impact.

The learned trial judge referred to the fact that, after the accident, it appeared that the back of the front seat was bent backwards, that the steering wheel was substantially bent, and that there was no evidence of injury to the appellant’s chest or face. These facts are reviewed in the judgment of the Appellate Division, as follows:

It should be pointed out, however, that the Respondent’s face had blood upon it to the extent that any visible injury would not be seen, that the Respondent was unconscious behind the wheel with his head bent forward on to his chest and hanging either on or near the steering wheel. Shortly after the accident the Respondent was held up by a fireman and a policeman in a position where it appeared he was suffering the least pain because if there was any movement he would let out a very loud scream. There was no other evidence as to the nature and extent of the Respondent’s injuries.

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It might further be pointed out that the finding of lack of injury to the appellant’s face, head and chest was made only as a result of visual observation of the appellant by the trial judge at the trial, which did not take place until December 17, 1968.

In the result, it is my opinion that the learned trial judge failed properly to apply the rule in Hodge’s case to the facts before him in that he acquitted the appellant, not because he found that there was a rational conclusion on the facts inconsistent with his guilt, but because there was, in his opinion, a conjectural conclusion which he considered might be inconsistent with his guilt.

In reaching the conclusion that, in this case, the learned trial judge erred on a question of law, it is necessary to consider whether this is inconsistent with the judgment of this Court in the case of Sunbeam Corporation (Canada) Ltd. v. The Queen[7]. The issue in that case, on an appeal by the Crown from an acquittal, was as to whether there had been an error on a question of law alone so as to entitle the Court of Appeal to interfere with the decision at trial.

That case involved two charges against a manufacturer of electrical appliances of breaches of s. 34(2) (b) of the Combines Investigation Act, R.S.C. 1952, c. 314, in attempting to induce retail dealers to resell its products at prices not less than minimum prices specified by it. The evidence was mainly documentary, and the Crown was able to take the benefit of s. 41(2) of that Act, which provided that documents, such as certain letters in question, should be admitted in evidence and should constitute prima facie evidence that the accused had knowledge of the documents and their contents and that anything recorded in them as having been done, said, or agreed upon by the accused or its agent was done, said or agreed upon.

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Notwithstanding the documentary evidence adduced, and the impact of s. 41(2), the learned trial judge held, as to one charge, that:

…The evidence as to inducement on this count does not bear that quality of certainty that ought to exist in the case of a criminal charge and it will therefore be dismissed.

As to the other charge, he said:

There is here neither sufficient evidence of inducement on the part of the accused nor that the alleged offence took place within the time charged. This charge must therefore be dismissed.

In the Court of Appeal, in dealing with the letters, applying s. 41(2), the Court said that the statements made by the company’s salesman “constitute direct proof by way of admissions of the attempts charged” and went on to say:

That evidence is not only sufficient to get the case past the judge to the jury, but there being no issue as to the weight or credit to be given to it, it is sufficient to counterbalance the general presumption of innocence and require affirmative action by the court in convicting the accused where, as here, it is not countered or controlled by evidence tending to contradict it or render it improbable, or to prove facts inconsistent with it.

Dealing with this proposition, Ritchie J., delivering the judgment of the majority of this Court, said, at p. 229:

With the greatest respect I cannot agree with Mr. Justice Schroeder that the provisions of s. 41(2) in any way preclude a judge or jury from considering the weight to be attached to the evidence contained in the letters in question in determining the issue of whether the Crown has proved its case beyond a reasonable doubt.

Section 41(2)(c) simply provides that documents, such as these letters, which were in the possession of the accused “shall be admitted in evidence without further proof thereof and shall be prima facie evidence” that the accused had knowledge of the documents and their contents and that anything recorded in them as having been done, said or agreed upon by the accused or its agent, was done, said or agreed upon. This does not mean that the trial judge, having accepted the letters as prima facie evidence of their contents, is precluded from assess-

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ing the weight to be attached to that evidence in considering the issue of the accused’s guilt or innocence.

The conclusion of the majority is expressed by Ritchie J., at p. 231, as follows:

In the quotations which I have taken from the judgment of the trial judge and of Mr. Justice Schroeder, I have italicized the words “sufficient” and “sufficiently” wherever they occur, as it appears to me that the fundamental difference between the trial judge and the majority of the Court of Appeal was that the Court of Appeal was of opinion that the evidence on the 3rd and 4th counts was sufficient to require a verdict of guilty, whereas the trial judge did not consider it to be sufficient to support such a verdict. It is well-settled that the sufficiency of evidence is a question of fact and not a question of law…

In essence, therefore, the Sunbeam case was one in which, applying s. 41(2), the Crown had made a prima facie case, which had not been answered by the accused by way of defence. The trial judge held that, notwithstanding this, it was still open to him to consider the sufficiency of that evidence to warrant a conviction in a criminal case. The Court of Appeal held that the evidence was sufficient to require a verdict of guilty. This Court held that the matter of sufficiency of proof was a question of fact for the trial judge and not a question of law.

In Lampard v. The Queen[8], in which the Sunbeam case was followed, the finding of the trial judge was as to guilty intent, and it was held that an inquiry as to whether certain acts were committed with a certain intent involved a question of fact.

In the present case there is no issue as to the sufficiency of the evidence to establish that an offence, as charged, had been committed and there is no issue as to any question of intent. The only issue was as to identity, and involved the proper application of the rule in Hodge’s case. For the reasons given, it is my opinion

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that the learned trial judge failed properly to apply the rule to the facts of this case. This involves error on a question of law.

In Belyea and Weinraub v. The King[9], Chief Justice Anglin said, at p. 296:

The right of appeal by the Attorney-General, conferred by s. 1013(4), Cr. C., as enacted by c. 11, s. 28, of the Statutes of Canada, 1930, is, no doubt, confined to “questions of law.” That implies, if it means anything at all, that there can be no attack by him in the Appellate Divisional Court on the correctness of any of the findings of fact. But we cannot regard that provision as excluding the right of the Appellate Divisional Court, where a conclusion of mixed law and fact, such as is the guilt or innocence of the accused, depends, as it does here, upon the legal effect of certain findings of fact made by the judge or the jury, as the case may be, to enquire into the soundness of that conclusion, since we cannot regard it as anything else but a question of law,—especially where, as here, it is a clear result of misdirection of himself in law by the learned trial judge.

In the present case the learned trial judge, in considering the facts to which he referred, failed to appreciate their proper effect, in law, in that he did not distinguish between a conjectural possibility, arising from those facts, and a rational conclusion arising from the whole of the evidence.

In my opinion the appeal should be dismissed.

RITCHIE J.—I have had the benefit of reading the reasons for judgment of the Chief Justice, Mr. Justice Hall, Mr. Justice Spence and Mr. Justice Martland and although I am in full agreement with the reasons and conclusion of the latter, I find it necessary to add a brief comment of my own.

This appeal raises the issue as to whether, under the circumstances of the present case, the appeal to the Appellate Division of the Supreme Court of Alberta was limited to a “ground of appeal that involves a question of law alone” so as to give that Court jurisdiction under s. 584 of the Criminal Code.

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The vital question which the learned trial judge was required to determine was the identity of the driver at the moment when the motor vehicle struck the power pole. The evidence in this regard is in my opinion entirely circumstantial and is afforded by the positions of the occupants of the vehicle immediately after the accident. The rule which the learned trial judge was required to apply in assessing this evidence has been recently restated in this Court by Spence J. in The Queen v. Mitchell[10], where he said of the statement made to the jury by Baron Alderson in Hodge’s case[11]:

Baron Alderson told the jury that the case was made up of circumstances entirely; and that, before they could find the prisoner guilty, they must be satisfied, ‘not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person.’

It is quite clear that this direction was concerned only with the identification of the accused as being the person who had committed the crime.

In the Mitchell case, Cartwright J. (as he then was) speaking for himself alone, observed: “The key word in the rule in Hodge’s case is ‘rational’.”

In the tragic circumstances of this case, the circumstance of the accused’s body being pinned behind the steering wheel so that it required the use of a hydraulic jack to release it, is not only consistent with the accused having been the driver, but is so compelling as to make that conclusion almost self-evident. The question however remains as to whether any of the other evidence concerning the positions of the various occupants of the car after the accident affords a “rational conclusion” which is inconsistent with the appellant’s guilt. In considering this question the learned trial judge himself said:

What can happen to the occupants of a vehicle which comes to such a sudden stop is, I think, a matter of conjecture.

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In my opinion the learned trial judge misapplied the rule as stated by my brother Spence in the Mitchell case, supra, in that instead of seeking to determine whether the circumstantial evidence disclosed “any other rational conclusion” inconsistent with the appellant’s guilt, he based his decision on “a matter of conjecture”. In so doing, in my opinion, he erred in law and his decision was accordingly properly reviewable under s. 584 of the Criminal Code.

As I have indicated, I would dispose of this matter as proposed by my brother Martland.

HALL J. (dissenting)—I agree with the Chief Justice and with my brother Spence that this appeal by the Crown does not involve a question of law alone as required by s. 584(1) (a) of the Criminal Code. I question, if I had been the trial judge, that I would have found that there was a basis for a reasonable doubt in the instant case, but I was not the trial judge and I have no right to usurp his function as such, and by reviewing the evidence come to the conclusion that he could not in law have had a reasonable doubt. The inference to be drawn from the proven facts was a pure question of fact.

I would dispose of the appeal as proposed by the Chief Justice.

SPENCE J. (dissenting)—This is an appeal from the judgment of the Appellate Division of the Supreme Court of Alberta[12] pronounced on May 14, 1969. By that judgment, the Appellate Division allowed an appeal by the Crown from the judgment of Déchène J. pronounced on December 18, 1968, after trial without a jury. In the latter judgment, the learned trial judge acquitted the accused of three charges of criminal negligence causing death and one charge of failing to remain at the scene of an accident.

I have had the advantage of reading the reasons of my brother Martland and I shall not repeat his statement of the facts except where I find it neces-

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sary to extend the reference thereto. I must, however, differ from my learned brother’s conclusion.

As pointed out in the reasons rendered for the Appellate Division by the Chief Justice of Alberta, there is no issue as to negligence and the sole issue upon this appeal is whether the appellant should have been convicted as the driver of the automobile involved in the accident. All of the evidence in reference to the question of identification was circumstantial. Therefore, the consideration of that evidence must be governed by the rule in Hodge’s case[13].

Cartwright J., as he then was, referring to the application of that rule, said in Lizotte v. The King[14]:

However that may be, it is my opinion that where the proof of any essential ingredient of the offence charged depends upon circumstantial evidence it is necessary that the direction be given.

My brother Martland, in his reasons, has quoted the direction given by Baron Alderson in Hodge’s case, supra, and I repeat it here:

Alderson B. told the jury, that the case was made up of circumstances entirely; and that, before they could find the prisoner guilty, they must be satisfied, “not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person”.

Although there is a certain degree of intermixture of the doctrine of “reasonable doubt” and of the rule in Hodge’s case, I am of the opinion that both the learned trial judge and the Appellate Division did consider the latter rule. The learned trial judge, upon consideration of the circumstances, came to the conclusion that he had no doubt that under the circumstances of the case whoever had been the driver of the red Rambler automobile involved in the accident had been guilty of criminal negligence which caused death.

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As I have said, no further issue arises upon that topic. The learned trial judge, however, came to the conclusion that although the circumstantial evidence was consistent with the conclusion that the accused had been that person who so drove that vehicle there was reasonable doubt that there might have existed other rational conclusions. Therefore, applying exactly the rule in Hodge’s case, the learned trial judge refused to convict.

With respect, the Chief Justice of Alberta in his reasons in the Appellate Division and my brother Martland in his reasons in this Court have both proceeded to weigh the evidence in order to determine whether such other rational conclusion was possible. I am of the opinion that that is not within the function of either the Appellate Division or of this Court upon appeal by the Crown from an acquittal of an accused person.

The jurisdiction of an Appellate Court under such circumstances is set out in s. 584 of the Criminal Code which in subs. (1) (a) provides:

584. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone,

(The underlining is my own.)

I need not repeat the decisions of this Court in reference to the application of that section. It is sufficient to say that it has been determined that it does not include a ground of appeal which is one of mixed law and fact.

In his reasons, the Chief Justice of Alberta cites The Queen v. Lemire[15] upon the proposition that the Appellate Division could proceed to examine the evidence and determine that it “amounts to no more than conjecture or surmise that this was the course of events”. The majority judgment of this Court in The Queen

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v. Lemire was given by my brother Martland and at p. 192 of the report he stated:

With the exception of those counts on which Lemire was acquitted, in my opinion, there was no evidence on the basis of which, as to each and every expense account submitted by him, any doubt, let alone a reasonable doubt, could arise as to Lemire’s having incorporated, to effectuate the agreed scheme, items of expense which were fictitious and false.

(The underlining is my own.)

Therefore, that was a case where both this Court and the Court of Queen’s Bench (Appeal Side) in the Province of Quebec were of the opinion that there was no evidence upon which to base the acquittal of the accused.

Again, in Sunbeam v. The Queen[16], Ritchie J. in this Court gave judgment for the majority allowing an appeal from a conviction by the Court of Appeal for Ontario on the ground, as Martland J. points out in his reasons upon this appeal, that the Court of Appeal was considering the sufficiency of the evidence and that in so doing they were engaging in the consideration of a question of fact and not a question of law as they alone were entitled to consider under the provisions of s. 584(1) (a)of the Code.

Chief Justice Smith also quotes the decision of the Court of Appeal for Ontario in Regina v. Torrie[17]. There, a County Court Judge had acquitted the driver of a vehicle who had been accused of criminal negligence contra s. 192 of the Criminal Code, as was the present appellant. In so acquitting, the trial judge expressed himself as having a reasonable doubt that the accident might have been caused by a sharp object being tossed from the road against the left front tire of the accused’s vehicle causing the tire to deflate and throwing the vehicle over to the left side of the road thereby resulting in the fatal impact. The evidence had shown that there was a cut or puncture in the sidewall of the tire close to the rim flange and that the flange imme-

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diately in line with this puncture had been damaged. There was no evidence of the presence of any sharp object on the roadway in the vicinity. The Court of Appeal for Ontario allowed an appeal by the Crown. At p. 303, Evans J.A. said:

With the greatest respect, I am of the opinion that the learned trial judge misapplied the rule in Hodge’s case (1838), 2 Lewin 227, 168 E.R. 1136, as to circumstantial evidence in that he based his finding of reasonable doubt on non-existent evidence.

There was no appeal to this Court and therefore whether or not there was any evidence upon which the learned trial judge could have based his finding can only be determined upon the acceptance of Evans J.A.’s statement. I stress, however, that the appeal was allowed and the accused was convicted on the basis that there was no evidence upon which the learned trial judge could find that there was another rational conclusion than the guilt of the accused, not by the weighing of the evidence to determine whether the learned trial judge should have found such evidence could support another rational conclusion. I am of the opinion that if there is evidence upon which a learned trial judge may find that there could be another rational conclusion then whether or not that evidence would have been sufficient to cause a Court of Appeal to reach a like conclusion is irrelevant. The task of determining the rationality of another conclusion if evidence exists is for the trial court judge and any weighing of that evidence in a Court of Appeal is engaging is considerations of something other than a question of “law alone”, to repeat again the words of s. 584(1) (a) of the Criminal Code.

Therefore, in the present case, the question must be determined whether there was evidence which the learned trial judge could have and should have considered in determining whether there might have been any other rational conclusion than that the accused drove the vehicle. I am of the opinion that there was a considerable body of evidence which the learned trial judge could have and should have so considered. It is plain that the appellant was the owner of the

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automobile in question. The appellant gave evidence on his own behalf and he admitted that he was driving that automobile at 7:45 p.m. on the evening in question when he met his three companions who were killed in the accident and that he drove from that meeting place to a beer parlour known as the Corona where the four sat consuming beer until 10:50 p.m., that the four then left the Corona and drove a few blocks to another place, known as the Beachcomber, where liquor was served, and they there consumed a small amount of hard liquor each and that they left there at or about 11:30 p.m. The appellant in answer swore that his last recollection was that he and his companions were walking toward his automobile which was parked on Jasper Avenue on the same side of the street as the Beachcomber Restaurant. As I have said, that was at about 11:30 p.m.

A Mr. Greenough was driving his automobile at 101st Street and 102nd Avenue when he made a manoeuvre in traffic which seemed to annoy whoever was the driver of a following vehicle which was, no doubt, the vehicle owned by the appellant, and thereafter that vehicle followed him, driving in a most erratic fashion for some distance. At the corner of 107th Avenue and 96th Street, when stopped because of a traffic light, Greenough noticed that the light in the interior of that automobile which stood behind his had come on indicating that the door had been opened and that there was no one sitting behind the steering wheel, although he did observe there were three other persons sitting in the automobile. In a moment, a person appeared immediately outside the door to Greenough’s left and that person rapped on the glass with his hand and said, “You’re going to get it”, then immediately returned to his vehicle. Thereafter, the two vehicules proceeded and eventually got on 112th Avenue, the street on which the fatal accident later occurred, and there at about 71st Street whoever was driving the red Rambler appeared to intentionally cause it to swerve into Greenough’s automobile, then accelerated away continuing easterly on 112th Avenue to 69th Street where the red Rambler turned to the right. Mr. Greenough continued on 112th Avenue to 65th Street where two

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other persons who had witnessed this occurrence and who gave evidence both informed him of the licence number of the red Rambler and he telephoned to the police. The constable on the desk informed Mr. Greenough that the time was then 11:59 p.m., i.e., it was almost exactly half an hour after the red Rambler had left Jasper Avenue in the vicinity of the Beachcomber. In my opinion, it is significant that this event occurred on 112th Avenue, which was the scene of the accident, and that the red Rambler then turned off 112th Avenue to the south at 69th Street, which would appear to be between six and seven blocks east of, i.e., beyond, the scene of the fatal accident. I think it is also significant that in his examination‑in‑chief at the trial Mr. Greenough was not even asked whether he could identify the person who stood only a foot or so away from him and threatened him with the words “You’re going to get it”. Mr. Greenough was not cross-examined.

We are left quite uninformed as to whether this motorist who had an excellent opportunity to observe closely the driver of this red Rambler on the same street on which the accident occurred only twenty minutes before it occurred could identify the accused or even describe the driver of the vehicle. There was, in addition, that approximately twenty-minute interval during it would appear that the red Rambler car was some place south of 112th Avenue when a change of drivers might have occurred. Had either the appellant or his companions been in a condition to be able to think intelligently, the quality of driving and temper of the driver, which were indicated by the events prior to 11:59 p.m. and which I have just outlined, might well have persuaded them that such a change of driver was required.

One of the witnesses to the slight impact between the red Rambler and Mr. Greenough’s automobile was Mr. Alexander Stewart who was unable to say how many persons were riding in the Rambler automobile and therefore he could add nothing as to the identity of the driver.

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Mr. Walter Yachimec was another person who witnessed the impact with the Greenough car and who also confirmed that thereafter the red Rambler had turned right from 112th Avenue and headed south. Mr. Yachimec’s evidence was:

No, the only thing I know there was two people in the back and one of them had glasses on, that’s all I know, they were both passengers in the car.

He testified that he could not tell whether there were two or three or how many people there were in the front seat.

The next event in time seemed to be the arrival of the red Rambler with its passengers at a drive-in restaurant known as the Burger-King on 112th Avenue. A Mr. Romaine, another patron in another automobile, testified that at the time there were four people in the red Rambler and he saw only two get out of the car, that the persons who got out of the car seemed to be staggering and that the driver did not get out of the car. It would appear that there had been some loud shouting between Romaine and these two persons but that Mr. Romaine made no observation of the driver whatever, stating:

Oh, I didn’t see him or anything, didn’t have any, talk to him or anything at all, because I think he was getting the order at the time.

Another patron of the Burger-King Drive-in Restaurant who testified was one Gordon Botsford. The red Rambler had evidently pulled in ahead of Mr. Romaine and alongside the automobile driven by Mr. Botsford. The latter saw only one person getting out of the back of the car and then re-entering the car on the passenger side of the rear seat, i.e., the right hand side of the rear seat. He testified that there were four persons in the car but he did not pay any attention to the driver, and that the vehicle left the drive-in restaurant in what he described as “a rather jerky fashion” at about 12:00 o’clock. In cross-examination, Mr. Botsford testified that there were two persons in the front and two in the rear, and

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that very evidently the man who sat on the passenger side in the front was drunk and was falling forward and then sitting back in the vehicle. Mr. Botsford continued his testimony that the vehicle left the restaurant, headed east on 112th Avenue and he next saw it “maybe four or five minutes away” afterwards and that it had then been involved in the accident.

To summarize, it would appear that there was not the slightest evidence given by Mr. Romaine or by Mr. Botsford to assist in the identification of the driver of the red Rambler as late as midnight or perhaps a few minutes after.

Mr. Albert Yagos was driving east on 112th Avenue at about the bend where the fatal accident occurred when the red Rambler automobile passed him on his right side, i.e., between his car and the curb, at a very high rate of speed, a speed which Mr. Yagos estimated, he admitted very roughly, at 70 to 80 miles an hour, and that the red Rambler hit the curb, fishtailed and then kept on going until it hit a power pole. At that moment, Mr. Yagos must have been some little distance to the rear of the red Rambler as he was not the first to arrive at the scene of the accident. A Detective Boyd was also driving eastward on 112th Avenue and was evidently between the red Rambler automobile and that driven by Mr. Yagos when the accident occurred. Mr. Yagos could only describe the passengers of the automobile when they passed him as being three in number—two in the front and one in the rear, and gave no description whatsoever of those three occupants whom he had seen.

Detective Boyd, who timed the accident very accurately at 12:20 a.m., said he was at approximately 78th Street when he noticed a flash of light ahead of him. That flash had indicated the point and time of the impact. The place of the impact was definitely determined to be midway between 76th Street and 75th Street, so that it occurred about two and a half blocks ahead of Detective Boyd. When he arrived at the scene of the accident which, of course, was only a moment after it occurred, Detective Boyd observed one person behind the wheel in an unconscious condition with

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his head forward on his chest “hanging on or near the steering wheel”. A young man was unconscious in the back seat of the car “his chest would be lying on the back seat with his legs on the floor in a face down mariner”, and on the right hand side of the vehicle there were two persons lying just outside the right front door. One of the persons was lying under the other. The twisted debris of the automobile had pinned one of the ankles of the person on top of the two. The photograph exhibits revealed that the automobile was well-nigh totally demolished. Subsequent expert evidence given showed that the impact had occurred on the right front corner, about a foot and a half from that corner, and the whole right front of the automobile had been pushed back toward the driver’s side. The right centre doorpost was twisted so that the door was well inside the vehicle. The right front wheel had been torn off and was found a very considerable distance away. Police evidence showed that there had been a skid mark which was described as not like a brake and which had run for forty-four feet until it met the south curb of 112th Avenue, that is, the right-hand curb, for a person eastbound, and then a mark continued on top of the curb from that point for a further forty-two feet four inches to a heavy steel power pole which power pole had been bent three feet further in an easterly direction. The impact, therefore, had been terrific, and the marks showed that the vehicle, upon the impact, had slewed in a clockwise fashion so that it faced, after it came to rest, southwest with its left front wheel only a foot and a half north of the curb and its left rear wheel about three feet north of the curb. The vehicle, therefore, would appear to have slewed through almost 180 degrees. As I have said, the automobile was well-nigh demolished. The windshield had been thrown some distance away from the impact and the steering wheel was bent and broken so that it is almost unrecognizable in the photographs, particularly in Exhibit 11. The left front seat was broken so that the back thereof instead of standing at 90 degrees to the east was driven back to almost a 45 degree angle. The appellant lay on this broken seat in the fashion which Detective Boyd described. Firemen who were called as an emergency crew and who arrived almost immediately

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found that his left leg, which was between the steering column and the left front door frame, was pinned between the dashboard and the floor boards of the car. Firemen had to use a power jack to separate these two components of the automobile in order to free the appellant.

All four occupants of the car were removed to a hospital by ambulance. Dr. McCurry testified that two of them, Morris Stevenson and Allan Neil Finlayson, were dead on arrival, and the third, Arthur Daniel Boulay, died forty minutes after admission. Dr. McCurry testified that he saw the appellant for approximately thirty seconds, only long enough to form the opinion that he did not need immediate treatment and that he could wait for another doctor to arrive. According to other police evidence, the appellant was in such a condition as prevented him from being interviewed that early morning in the hospital.

The learned trial judge, in his reasons for judgment, remarked: “There is no evidence of injury to the accused’s head, face or chest”.

Those who first saw the accused sitting in the seat ordinarily occupied by the driver, after the impact, testified that there was blood over his face but that is all the evidence as to injuries which he received. The appellant was, as I have said, taken to the hospital and there he was examined by some of the personnel after Dr. McCurry had seen him. It was within the Crown’s ability to call evidence to establish exactly the injuries which the appellant suffered at this impact. I am of the opinion that the learned trial judge was correct in referring to this lack of evidence as being an important consideration in arriving at the opinion that there might have been other rational conclusions than that the appellant was the driver. It is very difficult to imagine how anyone could have been in the driver’s seat of a vehicle at the moment of its terrific impact with the power pole and not have received more serious

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injuries. The bent and broken steering wheel alone could not have failed to crush his chest.

I have recited this evidence with this degree of detail to show that it was possible, time after time, for there to have been a change in the identity of the operator of the vehicle. One of the other three persons might have taken over the driving of the red Rambler at the Beachcomber; one of the other three persons might have taken over the driving of the vehicle after the irrational driving thereof culminating in the impact with Greenough’s automobile; one of the other three persons might have taken over the driving of the automobile at the Burger‑King Drive-in Restaurant. None of these suggestions are probabilities, all are possibilities. All are possibilities which would have given a basis in evidence for the learned trial judge to determine that other rational conclusions existed. I do not say that had I been the trial judge I would have determined that there were other rational conclusions but I do say that his finding that such other rational conclusions existed was based on a consideration of the evidence and once there is evidence it is his duty and his duty alone to determine whether such other conclusion is a rational one. I am, therefore, of the opinion that the judgment of the Appellate Division could only have been reached by a weighing of the evidence in order to determine whether other conclusions were rational and that such a course is beyond the jurisdiction of the Appellate Court as provided in s. 584(1) (a) of the Code.

I would, therefore, allow the appeal.

PIGEON J.—I agree with Martland J. that this case was correctly decided in the Court of Appeal for the reasons stated in the part of the judgment that he quotes.

I also agree that this is in accordance with the ratio of the judgment in Belyea[18], the first case in this Court in which the scope of the right of appeal by the Crown from an acquittal was considered, after its introduction, and was found

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available against a conclusion of mixed law and fact, when such conclusion is the result of misdirection in law.

I would dismiss the appeal.

Appeal dismissed, CARTWRIGHT C.J. and HALL and SPENCE JJ. dissenting.

Solicitors for the appellant: Duncan, Bowen, Craig, Smith, Brosseau & Home, Edmonton.

Solicitor for the respondent: The Attorney General of Alberta, Edmonton.