Castellani v. R., [1970] SCR 310

Supreme Court of Canada

Castellani v. R., [1970] S.C.R. 310

Date: 1969-11-27

Rene Emile Marcel Castellani Appellant;

and

Her Majesty The Queen Respondent.

1969: October 16; 1969: November 27.

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

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Trial—Capital murder—Admissions of fact at trial—Criminal Code, 1953-54 (Can.), c. 51, s. 562.

The appellant was convicted of the capital murder of his wife. It was conclusively proved that her death was caused by arsenical poisoning and that she had ingested quantities of arsenic throughout a period of several months prior to her death. This was not contested by the defence. The first day of the trial, after the evidence of one Crown witness had been heard, counsel for the appellant tendered a formal written admission of facts and asked that

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this be received pursuant to s. 562 of the Criminal Code. The Crown objected to the inclusion of one of these facts. The trial judge did not permit the admission of the fact in question. The Court of Appeal held that the trial judge should have permitted the admission but that the error had caused no prejudice to the appellant and that no substantial wrong or miscarriage of justice had occurred. The appellant appealed to this Court.

Held: The appeal should be dismissed.

The trial judge was not in error. In a criminal case, an accused cannot admit a fact alleged against him until the allegation has been made. When recourse is proposed to be added to s. 562, it is for the Crown, not for the defence, to state the fact or facts which it alleges against the accused and of which it seeks admission. The accused, of course, is under no obligation to admit the fact so alleged but his choice is to admit or to decline to do so. He cannot frame the wording of the allegation to suit his own purposes and then insist on admitting it. The idea of the admission of an allegation involves action by two persons, one who makes the allegation and another who admits it.

The reasons of Bull J.A. of the Court of Appeal on all the other grounds of appeal urged in the Court of Appeal and before this Court, should be adopted.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], affirming the appellant’s conviction for capital murder. Appeal dismissed.

C.R. MacLean, for the appellant.

W.G. Burke-Robertson, Q.C., for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This is an appeal from the unanimous judgment of the Court of Appeal for British Columbia1, pronounced on July 19, 1968, dismissing the appellant’s appeal from his

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conviction before Dryer J. and a jury on October 6, 1967, of the capital murder of his wife.

Esther Castellani, the wife of the appellant, died on July 11, 1965. It was conclusively proved by medical and scientific testimony that her death was caused by arsenical poisoning and that she had ingested quantities of arsenic throughout a period of several months prior to her death. That this was the fact was not contested by the defence. The question for the jury was whether they were satisfied beyond a reasonable doubt that the poison had been administered to her by the appellant. The learned trial Judge rightly instructed the jury that only two verdicts were open to them, “Not Guilty” or “Guilty of Capital Murder”.

The grounds of appeal relied upon by the appellant in the Court of Appeal are accurately summarized as follows in the reasons of Norris J.A. and of Bull J.A.:

1. The learned trial Judge erred in refusing to allow the appellant or his counsel to admit at the trial certain facts under Section 562 of the Criminal Code.

2. The learned trial Judge erred in law in not ordering certain portions of the address to the jury by the appellant’s counsel to be read to the jury when the jury so requested.

3. The learned trial Judge misdirected the jury by:

(a) failing to adequately deal with the evidence given by Mrs. Sheila Luond, and

(b) after having the evidence of Mrs. Sheila Luond read to the jury as it requested, made references to certain facts which were not in evidence, thereby suggesting that a prejudicial inference could be drawn therefrom, and not correcting that error until the next day just before the verdict was delivered, and

(c) creating a prejudicial effect by the combination of (a) and (b) above.

4. In view of the circumstantial nature of the evidence, the jury could not have given proper weight to the direction of the learned trial Judge as to the

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rule in Hodge’s case (1838) 2 Lewin 227, 168 E.R. 1136, or the doctrine of reasonable doubt, and so its verdict was perverse or unreasonable.

As to the first of these grounds, it appears that on September 25, 1967, the first day of the trial, after the evidence of one Crown witness had been heard, counsel for the appellant tendered a formal written admission, of facts “for the purpose of freeing the Crown of the responsibility for proving same” and asked that this be received pursuant to s. 562 of the Criminal Code which reads as follows:

562. Where an accused is on trial for an indictable offence he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof.

The document tendered consisted of eight paragraphs; following the style of cause it read as follows:

Pursuant to the provisions of section 562 of the Criminal Code of Canada, Counsel for Rene Emile Castellani hereby admit the following facts:—

1. That at the Vancouver General Hospital, in the City of Vancouver in the County of Vancouver, in the Province of British Columbia, on July 12th, 1965, an autopsy was performed by Dr. Frank H. Anderson on the body of Esther Castellani, deceased.

2. That on July 14th, 1965, at Forest Lawn Memorial Park in the Municipality of Burnaby, in the Province of British Columbia, the body of Ester Castellani, deceased, was buried in a casket placed in a closed cement crypt.

3. That on August 3rd, 1965, the body of Esther Castellani, deceased, was exhumed from the cement crypt of Forest Lawn Memorial Park in the Municipality of Burnaby, and delivered to the morgue in the City of Vancouver where a post‑mortem examination was conducted by Dr. Thomas Redo Harmon.

4. That control specimens of embalming fluid from the same source as were used by the undertakers who embalmed the body of Esther Castel-

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lani, deceased and who buried her, namely Simmons & McBride Ltd. of the City of Vancouver, were delivered to Eldon Rideout at the City of Vancouver on August 3rd, 1965.

5. That on July 28th, 1965, at the Broadway and Cambie Branch of the Canadian Imperial Bank of Commerce in the City of Vancouver, Rene Emile Castellani signed a certain application for a loan form from Kinross Mortgage Corporation, in the presence of Mr. R.S. Keyes.

6. That no action or proceeding for dissolution of the marriage between Rene Emile Castellani and Esther Castellani, which marriage was solemnized on July 16th, 1946, was ever commenced in any Court having jurisdiction to hear such an action.

7. That scientific tests known as X-ray diffraction procedures were done by Mrs. Thomson at the Ontario Attorney-General’s Crime Detection Laboratory, in an effort to determine from the hair samples removed from the body of Esther Castellani what salt or compound the arsenic had originated from, but the results were inconclusive because there was not a sufficient quantity of hair.

8. That Rene Emile Castellani and Adelaide Miller mutually engaged in an extra‑marital sexual relationship from approximately the Fall of A.D., 1964 to the Spring of A.D., 1966.

It was dated September 25, 1967, and signed by both of the counsel who appeared for the appellant at the trial.

Counsel for the Crown objected and the question was adjourned to the following day for argument. During the adjournment counsel for both parties agreed that the first seven paragraphs should be admitted but Crown counsel objected to the inclusion of para. 8 while counsel for the appellant insisted that under s. 562 he had the right to make that admission and intended to do so.

Following argument in the absence of the jury the learned trial Judge, after expressing regret that counsel for the Crown had not seen fit to

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accept the admissions as tendered, ruled that while the Crown’s case was being put in the defence did not have the right to make an admission unless the Crown were willing to accept it. Later the admission consisting of the seven paragraphs was signed and filed with the consent of both parties but counsel for the appellant maintained that they had the right to insist on also making the admission contained in para. 8.

The Court of Appeal were of the view that the learned trial Judge should have permitted the admission set out in para. 8 to be made, interpreting the words of s. 562 as giving the accused an unqualified right to make an admission of any fact alleged against him. They held therefore that the learned trial Judge had erred in law but went on to hold that the error had caused no prejudice to the appellant and that no substantial wrong or miscarriage of justice had occurred. If I were in agreement with the Court of Appeal that the learned trial Judge had erred in law in the manner stated I would also have agreed with their conclusion that this occasioned no substantial wrong or miscarriage of justice; but, with respect, I do not agree that the learned trial Judge was in error in the ruling which he made.

In a criminal case, there being no pleadings, there are no precisely worded allegations of fact which are susceptible of categorical admission. An accused cannot admit a fact alleged against him until the allegation has been made. When recourse is proposed to be had to s. 562 it is for the Crown, not for the defence, to state the fact or facts which it alleges against the accused and of which it seeks admission. The accused, of course, is under no obligation to admit the fact so alleged but his choice is to admit it or to decline to do so. He cannot frame the wording of the allegation to suit his own purposes and then insist on admitting it. To permit such a course could only lead to confusion. The idea of the admission

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of an allegation involves action by two persons, one who makes the allegation and another who admits it.

I have formed the above opinion as to the meaning and effect of s. 562, simply from a consideration of its words and of what is necessarily involved in the notion of an admission of an allegation of fact in a criminal case. If it were necessary to have recourse to rules of construction my view would be strengthened by the application of the rules set out by Lord Coke in Heydon’s Case[2]. It seems reasonably clear that before the enactment of s. 690 in the Criminal Code, 1892, the predecessor of s. 562, an accused on his trial for felony could not be allowed to make an admission in court although he desired to do so and counsel for the Crown was willing to accept it. This is indicated in the following passage in the report of the Commissioners who prepared the English draft code in 1879, which is quoted in Taschereau’s Criminal Code (1893), 3rd ed. at p. 800:

At present if the accused is proved before his trial to have made an admission it is evidence against him, but though he offers to make the same admission in court it is thought that in cases of felony the judge is obliged to refuse to let him do so.

The same view as to the common law rule was expressed by Osler J.A. giving the judgment of the Ontario Court of Appeal in Regina v. St. Clair[3] as follows:

… Under the former convenient classification of crimes as felonies and misdemeanours, the abolition of which, I think for my own part, is much to be regretted, such a charge was a misdemeanour simply and the competency of the accused or her counsel to make admissions at the trial for the purposes of the trial was undoubted.

In Rex v. Foster (1836), 7 C. & P. 495, on an indictment for felony for having in his possession a

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mould for the purpose of coining, the prisoner was acquitted; a second indictment for a related felony was then presented, the evidence on which was to be the same as in the former case. Counsel for the prosecution said that with the assent of the prisoner’s counsel he proposed not to call the witnesses again. Patteson, J., said he doubted if that could be done, even by consent, in a case of felony, though he knew it might be in a case of misdemeanour. The witnesses were, therefore, recalled and resworn, and the evidence they had given read over to them from the Judge’s notes.

In my opinion the purpose of enacting s. 562 and its predecessors was to alter the common law rule by eliminating the necessity, on the trial of an indictable offence, of proof by the Crown of any fact which it desires to prove and which the accused is prepared to admit at his trial.

On all the other grounds of appeal urged in the Court of Appeal and before us I find myself so fully in agreement with the reasons of Bull J.A. that I am content simply to adopt them. Nothing would be gained by repeating or summarizing what he has said. Each of the learned Justices of Appeal performed the duty placed upon the Court of Appeal by s. 583A(3) of the Criminal Code and could find no grounds in the record other than those alleged in the notice of appeal upon which the conviction ought to be set aside.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Kincaid, Epstein & MacLean, Vancouver.

Solicitors for the respondent: Boyd, King & Toy, Vancouver.