Criminal law ‑‑ Charge to jury ‑‑ Burden of proof ‑‑ Murder ‑‑ Whether trial judge erred in directing the jury to weigh the evidence of the accused against the evidence of other witnesses and to choose which they accepted, thereby reducing the burden of proof.
Criminal law ‑‑ Charge to jury ‑‑ Fairness ‑‑ Murder ‑‑ Whether trial judge adequately summarized the evidence or the theory of the defence.
Criminal law ‑‑ Charge to jury ‑‑ Unanimity ‑‑ Murder ‑‑ Trial judge instructing jurors that they could find the accused guilty either as principal or as aider or abettor ‑‑ Whether trial judge failed to instruct the jurors that they must be unanimous in the way in which the offence was committed ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 21.
Appellant was arrested and charged with causing the death of his ex‑wife. Following their separation in 1979 after seventeen years of marriage, the relation between the estranged spouses became increasingly bitter and acrimonious as they fought a long, hotly contested series of custody, access and matrimonial property battles. On January 21, 1983, appellant's ex‑wife was ferociously beaten and then shot to death. At trial, the Crown led direct and circumstantial evidence to prove that the appellant had personally murdered his ex‑wife or, alternatively, that he aided or abetted the killer and was therefore guilty as a party to the offence pursuant to s. 21 of the Criminal Code . The bulk of the evidence tendered by the Crown was consistent with either theory.
In defence, appellant adduced alibi evidence and denied any involvement in the killing. Several witnesses corroborated appellant's whereabouts at the time of the crime.
In his charge, the trial judge instructed the jurors that the appellant could be found guilty of murder if they were satisfied beyond a reasonable doubt that he was the principal offender or a party to the offence under s. 21 of the Code. He explained briefly the position of the defence and spent considerable time summarizing the Crown's evidence. The jury returned a verdict of guilty of first degree murder contrary to s. 218 of the Code. The majority of the Court of Appeal dismissed his appeal.
On appeal to this Court, appellant contended that: (1) there was no evidentiary basis for a direction pursuant to s. 21 of the Code; (2) the trial judge failed to direct the jury on the application of the legal principles of parties to an offence to the evidence of the case; (3) the trial judge erred in directing the jury to weigh the appellant's evidence against the evidence of other witnesses and to choose which they accepted, thereby reducing the burden of proof; (4) the trial judge failed to summarize fairly and adequately the evidence and the theory of the defence; and (5) the trial judge failed to instruct the jury that a verdict of guilty must be unanimous in relation to one or other of the alternative means of committing the offence of murder.
Held: The appeal should be dismissed.
There was an evidentiary foundation to justify putting to the jury the Crown's alternative theory that appellant was a party to the offence under s. 21, rather than a principal. Where an accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, it is also appropriate for the trial judge to direct the jury with respect to the provisions of s. 21 of the Code, even though the identity of the other participant or participants is unknown and even though the precise part played by each participant may be uncertain. Here, there was very strong evidence connecting appellant with the crime. There was also some evidence which, if believed, indicated that he did not commit the crime personally. The facts were for the jury, and the trial judge was correct not to preclude the jury from considering all the alternatives.
The trial judge adequately instructed the jury on the application of the legal principles of s. 21 to the evidence in the case. He accurately stated the law as to s. 21(1) and went through the evidence of each witness in turn. The fact that he did not carve his jury charge into discrete sections in which he reviewed the evidence consistent with appellant having personally committed the murder, appellant having committed the murder by means of s. 21(1), and, finally, appellant not having committed the murder at all, was not wrong. Much of the Crown's evidence was consistent with either Crown theory, and much of the defence evidence was consistent with either appellant's innocence or his guilt under s. 21(1).
The contention that the trial judge erred in putting the jurors to a choice between accepting the evidence of some witnesses or accepting appellant's evidence, thereby reducing the burden of proof, must fail. Although one passage of the trial judge's charge, if it stood alone, would be wrong in law, the charge, read as a whole, made it clear that the jury was not obliged to take a binary view of the evidence (accept or reject it) but had to give effect to reasonable doubt.
The trial judge adequately summarized the evidence or the theory of the defence. A trial judge is not required in his charge to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence. Here, the gist of the appellant's complaint is that the trial judge revealed to the jurors his own perception of the accused's guilt, through undue emphasis on the Crown's evidence and inadequate summary of the defence. The defence evidence was simple and the Crown's case was complex, relying on circumstantial evidence from a large number of witnesses. It is simply inappropriate to try to measure the fairness of the charge by reference to quantity.
Per Dickson C.J. and Beetz, Estey, Wilson and Le Dain JJ.: The trial judge did not err in failing to instruct the jurors that they must be unanimous in the way in which the murder was committed. Section 21(1) of the Criminal Code is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant. It provides that either mode of committing an offence is equally culpable and, indeed, that whether a person personally commits or only aids and abets, he is guilty of that offence‑‑in this case, murder‑‑and not some separate distinct offence. There is no need for the Crown to specify in the charge the nature of an accused's participation in the offence. Where there is evidence before a jury that points to an accused either committing a crime personally or, alternatively, aiding and abetting another to commit the offence, provided the jury is satisfied beyond a reasonable doubt that the accused did one or the other, it is a matter of indifference which alternative actually occurred. It follows that s. 21 precludes a requirement of jury unanimity as to the particular nature of the accused's participation in the offence.
Per Lamer J.: The Crown presented two factually inconsistent theories: that the appellant actually killed the deceased or that he aided and abetted the killer. The overwhelming mass of the evidence against the appellant, however, was consistent with both theories and pointed only to his participation in the murder. The jury could not have been convinced beyond a reasonable doubt of one theory to the exclusion of the other, but must have been convinced beyond a reasonable doubt that the appellant participated in the murder, either as principal or aider and abettor. Since s. 21(1) of the Criminal Code makes the distinction between participation as a principal and participation as aider and abettor legally irrelevant, it was not necessary for the jury to decide on the form of his participation and the jury was correct in convicting. But s. 21 does not always preclude a requirement of jury unanimity as to the particular nature of the accused's participation in the offence. Depending on the nature of the evidence presented by the Crown, the jury unanimity issue may arise in any case where the Crown alleges factually inconsistent theories, even if those theories relate to the particular nature of the accused's participation in the offence. If the Crown presents evidence which tends to inculpate the accused under one theory and exculpate him under the other, then the trial judge must instruct the jury that if they wish to rely on such evidence, then they must be unanimous as to the theory they adopt. Otherwise, the jury would be adding against the accused the inculpatory elements of evidence which cannot stand together because they are inconsistent.
Per La Forest J.: Although alternative theories of culpability were advanced by the Crown, there were ample grounds for the jury to find appellant guilty beyond a reasonable doubt while remaining unsure whether he had committed the murder himself or through another person. But there may be cases where the interrelationship between competing Crown theories and the evidence adduced in relation thereto will not justify a verdict of guilt. In each case, therefore, it will be for the trial judge, having regard to the nature of the offence, the theories of the parties, and the totality of the evidence, to realistically assess the possibility that the evidence will be used improperly, and to direct the jury accordingly. The present, however, is not such a case.
Section 21 of the Criminal Code is merely one example of a situation where the Crown is relying on alternative theories of culpability to found an accused's guilt. The fact that s. 21 makes the particular nature of the accused's involvement in an offence legally irrelevant does not in and of itself justify conviction on the basis of mutually exclusive or alternative theories of culpability.
Cases Cited
Considered: R. v. Harder, [1956] S.C.R. 489; Chow Bew v. The Queen, [1956] S.C.R. 124; R. v. Brown (1984), 79 Cr. App. R. 115; R. v. Sparrow (1979), 51 C.C.C. (2d) 443; referred to: R. v. Clayton‑Wright (1948), 33 Cr. App. R. 22; Nadeau v. The Queen, [1984] 2 S.C.R. 570; R. v. Folkes and Ludds (1832), 1 Mood. 354, 168 E.R. 1301; R. v. Swindall and Osborne (1846), 2 Car. & K. 230, 175 E.R. 95; R. v. Bouvier (1984), 11 C.C.C. (3d) 257; R. v. Tuckey (1985), 46 C.R. (3d) 97; R. v. Isaac, [1984] 1 S.C.R. 74; R. v. Farrant, [1983] 1 S.C.R. 124; R. v. Govedarov, Popovic and Askov (1974), 16 C.C.C. (2d) 238; R. v. Smith (1876), 38 U.C.Q.B. 218.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 21, 205(5)(a), 212(a)(i), 214(1) [am. 1973‑74, c. 38, s. 2; 1974‑75‑76, c. 105, s. 4], (2) [am. R.S.C. 1970, c. C‑35, s. 4(1)(a); 1973‑74, c. 38, ss. 2, 10, 11; 1974‑75‑76, c. 105, s. 4], (3) [am. 1973‑74, c. 38, s. 2; 1974‑75‑76, c. 105, s. 4], 218(1) [am. 1973‑74, c. 38, s. 3(1); 1974‑75‑76, c. 105, s. 5], 421, 423 [am. 1974‑75‑76, c. 93, s. 36; 1980‑81‑82‑83, c. 125, s. 23], 516(1)(f), 613(1)(b)(iii), 618(1)(a) [am. 1974‑75‑76, c. 105, s. 18].
Authors Cited
Archbold, John Frederick. Archbold's Pleading, Evidence & Practice in Criminal Cases, 33rd ed. By T. R. Fitzwalter Butler and Marston Garsia. London: Sweet & Maxwell Ltd., 1954.
East, Edward Hyde. Pleas of the Crown, vol. 1. London: A. Strahan, King's Printer, 1803.
Gelowitz, Mark A. "The Thatcher Appeal: A Question of Unanimity" (1986), 49 C.R. (3d) 129.
MacKinnon, Peter. "Jury Unanimity: A Reply to Gelowitz and Stuart" (1986), 51 C.R. (3d) 134.
Russel, Sir William Oldnall. Russell on Crime, 10th ed. By J. W. Cecil Turner. London: Stevens & Sons Ltd., 1950.
Taschereau, Henri Elzéar. The Criminal Code of the Dominion of Canada, 3rd ed. Toronto: Carswells, 1893.
Williams, Glanville. "Alternative Elements and Included Offences," [1984] C.L.J. 290.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1986), 46 Sask. R. 241, 24 C.C.C. (3d) 449, [1986] 2 W.W.R. 97, dismissing the accused's appeal from his conviction on a charge of first degree murder. Appeal dismissed.
Gerald N. Allbright, Q.C., and Mark Brayford, for the appellant.
Serge Kujawa, Q.C., and D. Murray Brown, for the respondent.
The judgment of Dickson C.J. and Beetz, Estey, Wilson and Le Dain JJ. was delivered by
1 The Chief Justice‑‑On May 7, 1984, Colin Thatcher was arrested and charged with causing the death of his ex‑wife, JoAnn Kay Wilson. After a fourteen‑day trial before judge and jury, he was convicted of first degree murder and sentenced to life imprisonment without eligibility for parole for twenty‑five years. An appeal to the Saskatchewan Court of Appeal was dismissed (Vancise J.A. dissenting) (1986), 46 Sask. R. 241, 24 C.C.C. (3d) 449, [1986] 2 W.W.R. 97. Colin Thatcher now appears before this Court requesting that the jury's guilty verdict be set aside.
2 The position of the Crown throughout the trial was that Mr. Thatcher had murdered Mrs. Wilson or alternatively that he caused someone else to do so and was therefore guilty as a party to the offence pursuant to s. 21 of the Criminal Code . Mr. Gerald N. Allbright, counsel for Mr. Thatcher, advances a number of grounds of appeal in his factum: (i) that there existed no evidentiary basis for a direction pursuant to s. 21 of the Code; (ii) that the trial judge erred in failing to direct the jury on the application of the legal principles of parties to an offence to the evidence of the case; (iii) that the trial judge failed to summarize fairly and adequately the evidence and the theory of the defence; (iv) that the trial judge erred in directing the jury to weigh the evidence of Mr. Thatcher against the evidence of other witnesses and to choose which they accepted, thereby reducing the burden of proof; and (v) that the Saskatchewan Court of Appeal erred in ruling that the curative provision found in s. 613(1)(b)(iii) of the Code could be resorted to in the circumstances of the case. These were all grounds in respect of which there was dissent in the Court of Appeal of Saskatchewan, thereby giving rise to an appeal to this Court as of right, pursuant to s. 618(1)(a) of the Code.
3 Another ground of appeal, in my view of more substance than those just described, was also argued by counsel for Mr. Thatcher. It was not the subject of a dissent in the Court of Appeal and was unanimously dismissed by that Court. Leave to argue this ground was sought from this Court, and was granted. Counsel contended that the trial judge erred in failing to instruct the jury that a verdict of guilty must be unanimous in relation to one or other of the alternative means of committing the offence of murder. The effect of the argument, in the circumstances of this case, was that in order to find Mr. Thatcher guilty of murder, the jury had to be unanimous that he intentionally killed his former wife or, alternatively, that he aided or abetted another person or persons in her killing; it was simply not sufficient that some members of the jury would hold to one theory and other members would hold to the other theory. That, as I see it, is the principal issue in this appeal.
I
The Facts
(i) Introductory
4 Having met as students at the University of Iowa, Colin Thatcher and his former wife JoAnn were married on August 12, 1962. After their marriage, they returned to Saskatchewan. They took up residence in Moose Jaw. Mr. Thatcher, the son of a one‑time member of Parliament and Premier of Saskatchewan, developed over the years an active and successful career as rancher, farmer and politician, serving for a time as Minister of Energy and Mines in a Progressive Conservative Government of Saskatchewan. Three children, Greg, Regan and Stephanie, were born of the marriage. Thatcher admitted to infidelity during the course of the marriage. The couple separated in August 1979. JoAnn, taking the two youngest children with her, left Moose Jaw with Mr. Thatcher's best friend, Ron Graham. Relations between the estranged spouses became increasingly bitter and acrimonious as they fought a long, hotly contested series of custody, access and matrimonial property battles. Colin Thatcher became obsessed. At one juncture he spirited Regan out of the country, and was found in contempt and ordered to pay a substantial fine. JoAnn's matrimonial property entitlement was initially held to amount to $820,000 but the judgment was immediately appealed. In 1980, the Thatchers were divorced. In January 1981, JoAnn married Mr. Tony Wilson and moved into a house located across the street from the Legislative Buildings in Regina.
(ii) The Spring of 1981
5 On the evening of Sunday, May 17, 1981 JoAnn Wilson was shot and wounded while in the kitchen of her home. A bullet fired from a high‑powered rifle passed through a triple glaze glass window and struck her in the shoulder. She was hospitalized for about three weeks. The evidence was that JoAnn Wilson was terrified by this attempt on her life. After the shooting, she gave up her right to custody of Regan and, a year later, agreed to accept approximately one half of the original court award, spread over five years. No one was charged with the May 17, 1981
incident.
(iii) January 21, 1983
6 At about 6 o'clock in the evening of January 21, 1983, JoAnn Wilson came home, drove into the garage of her home and was ferociously beaten and then shot to death. Twenty‑seven wounds were inflicted on her head, neck, hands and lower legs. The injuries included a broken arm, a fracture of the wrist and a severed little left finger. A single bullet entered her skull causing death.
7 Mr. Craig Dotson testified as to the finding of the body. He stated that he left work at the Legislative Buildings shortly before 6:00 p.m. on January 21, 1983, and was walking home when he noted a green car with a female driver turn into the garage at the Wilson residence. He continued walking for about a block. He heard loud shrill screams behind him. He turned back to investigate. He heard a single loud sharp noise and then silence. As he approached a lane near the Wilson garage he saw a man emerge from the garage. He did not pay any particular attention. It was dark. He was 30 to 40 feet from the individual. He walked a little further and saw a body in a pool of blood on the floor of the garage.
8 Mr. Dotson told the police he thought the man he momentarily observed had a beard, was about thirty years old, five foot nine to five foot eleven in height, and of medium build. A composite sketch prepared by the police with Mr. Dotson's aid did not fit Colin Thatcher, whom Mr. Dotson knew as a member of the Saskatchewan Legislative Assembly.
II
The Pre‑trial Proceedings
9 As stated, Mr. Thatcher was arrested on May 7, 1984 and was charged that he did unlawfully cause the death of JoAnn Wilson contrary to s. 218 of the Criminal Code . Section 218(1) of the Code provides:
218. (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
Sections 205(5)(a) and 212(a)(i) of the Code define culpable homicide and murder, respectively. Section 205(5)(a) states:
205. ...
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act.
Section 212(a)(i) provides:
212. Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death
Section 214 classifies murder into two types:
214. (1) Murder is first degree murder or second degree murder.
(2) Murder is first degree murder when it is planned and deliberate.
(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other's causing or assisting in causing the death of anyone or counselling or procuring another person to do any act causing or assisting in causing that death.
10 A preliminary inquiry was held in Regina, Saskatchewan, from the 25th to the 28th of June, 1984, following which Mr. Thatcher was committed to stand trial as charged. An indictment was ultimately preferred in the Court of Queen's Bench for the province of Saskatchewan. In August 1984, an application was taken to the Court of Queen's Bench requesting a change of venue and the Court directed that the trial be held at the City of Saskatoon.
11 In September 1984, prior to the commencement of trial, defence counsel launched a motion to the trial judge seeking an order directing the Crown to furnish particulars to the accused "to further describe the means by which the accused is alleged to have caused the death of JoAnn Kay Wilson". This order was sought pursuant to s. 516(1)(f) of the Code. The defence also sought an order "directing disclosure by the prosecutor of all intercepted private communications to which the accused is in any way a party, or which relate in any way to the telephone or telephones of any residence or other buildings used or frequented by the accused, or which relate directly or indirectly to the charge facing the accused." The judge, dismissing the first application (reported at (1984), 42 C.R. (3d) 259), relied upon the judgment of Martin J.A. in R. v. Govedarov, Popovic and Askov (1974), 16 C.C.C. (2d) 238 (Ont. C.A.), and adopted the following passages from that judgment, at pp. 269‑70, as a correct statement of the law:
The indictment had been preceded by a preliminary hearing lasting several days. Clearly, the purpose of the application for particulars was not to require the prosecution to provide the accused with additional details with respect to matters referred to in the indictment in order that the accused might be more fully informed of the act or omission charged against them but was to restrict the prosecution to reliance on a part only of the definition of murder contained in the Criminal Code .
He concluded at p. 265:
From the foregoing authorities I am satisfied that the accused is not entitled to an order for the particulars he seeks. If there is evidence upon which a properly instructed jury could find that the accused committed the offence or that he was a party to the commission of an offence by a person or persons unknown, it must be left to the jury to make either of such findings and their right to do so may not be restricted by an order for particulars. The application for particulars is accordingly dismissed.
The trial judge, on the second application, for disclosure of intercepted private communications, granted such disclosure in part.
III
The Case for the Crown
12 At trial, the case for the Crown rested upon an evidential base of both direct and circumstantial evidence, which I will now seek to summarize:
(i) The Apparent Surveillance Prior to the Killing
13 Margaret Johannsson testified that she observed a car parked almost directly opposite the Wilson garage on the day before the killing. The motor was not running. The lights were out. A male individual was seated behind the wheel. The car was blue in colour and had what appeared to be a government safety sticker on the back bumper.
14 Joan Hasz testified that she observed a blue car parked opposite the house in which she was employed (a block west of the Wilson residence) on the three afternoons preceding the killing. The car was placed so that it could command an unobstructed view of the Wilson garage. It was occupied by a single male. The motor was not running. This upset Mrs. Hasz and she informed her employer, Mr. Adams, who watched the car for fifteen minutes. As Mrs. Hasz left for home she decided to look at the license but could only read the numbers as the letters were covered with mud. She memorized the numbers 292 and repeated them as she drove home. When she arrived, she wrote them down. The occupant of the vehicle was described as a relatively young male of medium build with a beard, wearing a toque and what appeared to be rubber or surgical gloves. A police composite of the person Mrs. Hasz and Mr. Adams described did not fit Mr. Thatcher. One of the admissions of fact made on behalf of the accused was this: a 1980 Olds Delta 88 automobile bearing Saskatchewan license plate KDW 292 and owned by the Government of Saskatchewan was on January 10, 1983 checked out from the Central Vehicle Agency, Regina, to W. Colin Thatcher and remained checked out to him until it was picked up by the Regina City Police on January 27, 1983.
15 The witness Charles Guillaum testified that, at a much earlier date, on the appellant's instructions he returned a government car to the government garage. Under the front seat of that car he found a holster for a handgun which he turned over to the Regina City Police.
(ii) The Credit Card
16 During their investigation immediately following the killing the police found a Shell Oil credit card receipt lying on top of the snow some eight feet from the southeast door of the garage. The receipt bore what appeared to be the signature of Colin Thatcher. The owner of the service station confirmed the purchase by Mr. Thatcher of gasoline from J. & M. Shell Service in Caron, Saskatchewan on January 18, 1983.
(iii) The Gun and the Bullet
17 According to expert police testimony, JoAnn Wilson was probably struck in the head with a .38 Special Plus P, aluminum‑jacketed, 95 grain bullet manufactured by Winchester. The bullet was probably fired from a .38 Special or .357 Magnum Ruger revolver. The murder weapon was never found. The proprietor of a gun shop in Palm Springs, California, Ronald Williams, testified that on January 29, 1982 he sold Colin Thatcher a .357 calibre Ruger revolver. Thatcher picked up the gun along with a holster and ammunition on February 20, 1982. The ammunition consisted of two boxes of Winchester western .38 calibre Special Plus P silver tip hollow point shells and two bags of reloaded ammunition. The Winchester ammunition had a bullet with an aluminum jacket and a lead core. The witness also identified the holster found by the witness, Guillaum, as being consistent with the holster he sold to Colin Thatcher.
(iv) The Evidence of Lynn Mendell
18 The Crown also called Lynn Mendell, of Palm Springs, California, a former girlfriend of Colin Thatcher. Ms. Mendell described the bitterness Thatcher constantly expressed about JoAnn Wilson, and how he maintained many times that he wanted to kill her or arrange with someone to do it for him. She testified that this was on his mind all the time. According to Ms. Mendell, Thatcher told her he had met with someone in Saskatchewan whom he wanted to hire to kill JoAnn Wilson. He eventually told her the plan fell through but that he would have to go about it one way or another. These conversations took place in late 1980 and early 1981.
19 Lynn Mendell also told the Court that in May of 1981 Thatcher phoned and told her his ex‑wife had been shot and wounded. She testified that when he came down to Palm Springs a few days later, he told her someone had rented a car for him; that he, Thatcher, wore a disguise; and that he had staked out an area that was visually accessible but, because he did not gauge the thickness of the glass, the bullet deflected and struck JoAnn Wilson on the shoulder. According to Ms. Mendell, he told her:
Gee, I didn't gauge the thickness of the glass so the bullet obviously deflected because I only got her in the shoulder.
She also stated that Thatcher told her he left Regina and ran into roadblocks; that he went out into the fields where he got rid of the gun, the wig, and the overalls and then made his way back to Moose Jaw. According to Ms. Mendell, the only thing that saved him was the fact that the police did not go to his home to see if he were there.
20 Lynn Mendell also testified she knew Thatcher had a handgun in Palm Springs. She saw him pack that gun into a Barbie Doll shower box with newspaper, and place the box in his suitcase prior to his leaving for Canada. A box matching that description, with a label which showed it had been purchased in Palm Springs, and containing old copies of the Los Angeles Times, was found by Regina City police in a small cupboard adjoining the master bedroom of Thatcher's home in Moose Jaw.
21 On the day of the killing, Ms. Mendell said she received two calls from Thatcher, one early and another later in the evening. During the first call Colin Thatcher told her:
Well, I'm going out now. This might be the night, stick around.
During the later call he said:
Oh, my God, I've just been called...Apparently JoAnn has been shot in her home and has been killed.
Thatcher, according to Ms. Mendell, came to Palm Springs a few days after the fatal shooting. She said to him:
Well, you really did it, didn't you.
She said he scowled, nodded, pointed to the walls, and told her not to talk there. Later, when they were outside the condominium, he was alleged to have said:
I have to admit it is a strange feeling to have blown your wife away.
When press reports of the shooting and beating appeared in the Desert Sun he allegedly said:
I don't know why they said she was beaten. I didn't beat her.
22 Ms. Mendell acknowledged that she did not contact the authorities immediately after these incidents.
(v) The Evidence of Gary Anderson
23 Gary Anderson testified under an agreement of immunity from prosecution. Anderson is a farmer from the Caron district and a rural neighbour of Colin Thatcher. He testified he had met Thatcher in the fall of 1980 and Thatcher had asked him if he was interested in killing JoAnn Wilson for a fee of $50,000 or, if not, whether he could find someone to do it for him. Anderson stated he knew another person named Charlie Wilde who might be interested. Wilde suggested a third person, Cody Crutcher, who would be willing to take on the job. Anderson stated that Thatcher gave him $15,000 to pass on to Crutcher, and that Anderson paid some $14,500 to Crutcher, together with a picture of JoAnn Wilson and a set of her car keys. Nothing came of this and Anderson then arranged for a meeting with Charlie Wilde at a farm north of Caron, Saskatchewan in the spring of 1981. At that meeting Charlie Wilde told Thatcher he would do the job himself while visiting the United States. Before doing anything, however, Charlie Wilde was arrested in Winnipeg on an unrelated matter.
24 Anderson testified that Thatcher got him to purchase a .303 Lee Enfield rifle and some ammunition. On May 16 or 17, 1981, prior to the wounding of Mrs. Wilson, Anderson, at Thatcher's request, rented a car for Thatcher and turned it over to him by dropping it off at a prearranged location. On instructions given by Thatcher, Anderson waited to hear of the wounding of JoAnn Wilson before he went back to get the car. Once he had heard she had been shot he returned to the place where he had left the car, retrieved the vehicle, cleaned it and returned it to the rental dealer. He noted that the car was dusty and that the licence plates were smeared with mud. Anderson testified that in the fall of 1982 he again met with Thatcher and asked him how he could have missed, to which the appellant answered that he did not know.
25 Anderson further stated that when he again met Thatcher in late 1982, Thatcher turned over a handgun to him with a request that he find a silencer for it. The gun was a .357 calibre Magnum Security Special. Anderson was unsuccessful in getting a workable silencer made and on January 20, 1983 he saw Thatcher and reported that to him. At that time Thatcher told him he had been stalking his ex‑wife for a week and that he wanted the gun back. The gun was turned over to Thatcher on the afternoon of January 21, 1983. Earlier that morning Thatcher asked Anderson to get him a car. Anderson turned that over to Thatcher on that day on directions given him by Thatcher. Anderson then read in the newspaper that JoAnn Wilson had been killed. That was his signal to retrieve the car from where he had left it for Thatcher. He got the car back, cleaned it out, cleaned the licence plates off, and burned the items he removed from the vehicle. In cleaning out the car the witness testified that he removed clothing he had seen Thatcher wearing when Anderson turned the car over to him, plus a tuft of hair he thought came from a wig.
26 Finally, Anderson testified that on May 1, 1984 he again met Thatcher at a deserted farm near Caron. He had been provided with a body pack tape recorder to record the conversation between himself and Thatcher. A brief extract from the conversation follows:
Anderson: Umm, I got rid of the ah stuff outta' the car.
Thatcher: Good.
Anderson: You kinda' give me a scare there with, I found the stuff laying and then I wondered what the hell, I didn't know where the hell you, what the hell you'd done with the gun. (Sighs).
Thatcher: Listen, don't even talk...
Anderson: Hm.
Thatcher: ...like that. Don't. Don't, don't even...Walk out this way a little (unintelligible).
Anderson: (Grunts)
Thatcher: No. There are, there are no loose ends at all. And ah...
(Muffled noises.)
Thatcher: ...y'know, they've gone at every which direction. Umm, is there any way a loose end from a couple years ago can ever resurface?
Anderson: Ahhh.
Thatcher: From some of ahh, some of the guys tha, th, that ah, discussing some business with. Is there any way can ever be a problem surface from them?
Anderson: Mmm, y'mean the, from Vancouver and Winnipeg? Ahh. I ah located one of 'em.
Thatcher: The one that I met or the other one?
Anderson: Ahh, the other one.
Thatcher: Son‑of‑a‑bitch.
Anderson: Well. It's up to you.
Thatcher: Is he in, or, he's not in jail now is he, or in any trouble?
Anderson: Not to my knowledge.
Again:
Thatcher: Okay an' just remember there are no er, no problems an' there won't be unless they trip over something an' I got no intention of giving them anything to trip on.
Anderson: 'Kay.
Thatcher: There's no loose ends like, y'know, there's nothin' for them t' find. Y'know.
Anderson: It's all been...
Thatcher: All...
Anderson: ...taken care of.
Thatcher: Sure. Heavens yes. Heavens yes. I'm ahh, but I still don't trust the bastards for bugs. Mean, I don't know whether there's any possibility that that, 'ts why when we talk ah, just assume the bastards are listening.
(vi) The Evidence of Charles Wilde
27 Charles Wilde testified that in the summer of 1980 he met Gary Anderson while they were fellow inmates in a Regina jail. Anderson later asked him if he was interested in doing a killing. At that time Wilde told Anderson he was not interested. Wilde later talked to his friend Cody Crutcher and they decided that, while they would not do the killing, they would be happy to take the money offered for it. In December 1980, Anderson, Wilde and Crutcher met in Regina. Anderson gave Crutcher $7,500 which Crutcher split with Wilde. Shortly after that Wilde again met with Anderson and got another $7,000 plus a picture of the intended victim, JoAnn Wilson, and her car keys. In March 1981, Wilde met with Anderson and Thatcher. At that time Thatcher pressed him to do the job and offered him 50 to 60 thousand dollars if he would complete the killing. He told Wilde that his ex‑wife, her husband, and Stephanie were going to Ames, Iowa, to visit her parents during the Easter week of 1981. He indicated that Ames would be a good place to "hit" her, gave the Iowa address to Wilde, and suggested that he, Wilde, could phone him in a few days at the Legislature, by which time he would probably have some money available. While Wilde said he had no intention of killing anyone, he agreed to do what was asked in order to see if he could get some money. At a subsequent meeting with Thatcher, Thatcher gave Wilde $4,500 to assist him in travelling to the United States where JoAnn was visiting her parents. Shortly after, Wilde was arrested in Winnipeg for breaking into a drugstore. Wilde acknowledged having a lengthy criminal record, mainly for drug offences.
(vii) The Evidence of Richard Collver
28 Mr. Collver and Mr. Thatcher both sat as members of the Saskatchewan Legislature, the latter being then a member of the Liberal Party while Mr. Collver led the Provincial Progressive Conservative Party. In time Mr. Collver persuaded Thatcher to join the Conservative caucus, and the two became close personal friends. Their friendship continued after Mr. Collver resigned as Leader of his Party and sat as an independent Member.
29 Collver testified that during the 1979 fall session of the Legislature Thatcher repeatedly talked to him, Collver, about his marital problems, so much so that Mr. Collver thought him obsessed‑‑he couldn't think about politics or anything else. Collver invited Thatcher and several members of his family to visit over Christmas at his dude ranch near Phoenix, Arizona. The following extract from the charge of the trial judge will indicate the nature of Collver's further evidence.
Collver testified that the morning following their arrival he and Thatcher were talking about Thatcher's problems over coffee. He said that Thatcher told him he had to find someone to kill her. According to Collver he and Thatcher had previously talked about some horrible people two lawyer friends of Collver knew in Calgary and Edmonton. And he testified that Thatcher wanted him to phone one and get somebody to assist him in killing his wife. Collver says he told Thatcher he was suffering from an obsession and that he should get rid of it. When Thatcher renewed the request at least three more times the same day, Collver asked him to leave the ranch and he and the family departed the following morning.
The following spring, 1980, when the Legislature was in session, Collver testified that Thatcher again approached him about negotiating a settlement. He told Thatcher he would be bled to death if he kept on with lawyers, but that if he would give him a bottom line, that he, Collver, would try to negotiate a settlement. Thatcher told him his bottom line was $400,000.00 and custody of the two boys. Collver said he met with JoAnn and she asked him if she could bring in a friend to assist her, who it turned out was Tony Wilson. The upshot of the meeting was that JoAnn would accept $230,000.00 and custody of Stephanie, with Thatcher to have custody of the two boys. Collver said he was ecstatic. He immediately telephoned Thatcher and told him what he had achieved. According to Collver Thatcher's reply was, "The bitch isn't going to get anything." This ended the attempt by Collver to assist his friend Thatcher.
30 Collver indicated that he had not conveyed this information in any fashion to the authorities until shortly before his testimony at the trial. He had withheld such information after receiving legal advice to the effect that he was under no legal duty of disclosure.
IV
The Defence
31 Seven witnesses were called by the defence. As well, the accused testified on his own behalf. One witness, Mr. Wayne Mantyka, a Regina newscaster, was called to support the claim that ammunition allegedly used to commit the crime could be obtained not only in the United States but also in Canada. The other six witnesses were called in support of Thatcher's version of his whereabouts on the night of the killing, as well as on the night of the first shooting.
32 The credibility of these witnesses was critical to meeting the Crown's primary submission. Regina, where Mrs. Wilson was killed, is over forty miles east of Moose Jaw. Moose Jaw is about eighteen miles east of Thatcher's ranch in Caron. Mr. Dotson's testimony was that he discovered the body at approximately 6:00 p.m. A test conducted by the police determined that it was possible to travel from the victim's house in Regina to the appellant's residence in Moose Jaw in roughly twenty‑eight minutes. Testimony indicating that Mr. Thatcher was elsewhere would, if believed, go to rebut the allegation that he personally murdered his ex‑wife. It would not, however, be relevant to the Crown's alternative submission that he caused someone else to commit the act.
(i) The Evidence of Mrs. Barbara Wright
33 Mrs. Barbara Wright, the wife of Thatcher's farm manager, testified that she had seen Mr. Thatcher drive into his ranch between 5:00 and 5:30 p.m. on the day of the murder. She estimated this time partly by reference to her belief that she left work shortly after 4:00 p.m. that afternoon. She said she was in the kitchen when Thatcher drove into the yard in his truck shortly after 5:00 p.m. She said she did not speak to him and only observed his movements through the window. He left after about twenty minutes. She testified that at about 7:00 p.m., Thatcher telephoned to say that Mrs. Wilson had been murdered.
34 In cross‑examination, she acknowledged that her work records showed that she was not working on the day of the murder, but she explained this discrepancy by stating that she had exchanged shifts with a fellow employee and that this exchange did not show up in the records. Also in cross‑examination, she admitted that she did not give this information to the police when she was interviewed several days after the murder. She stated that, at that time, she did not think of Thatcher as a suspect. She also admitted to speaking with Mr. Thatcher the night before swearing an affidavit in which similar statements about his whereabouts were made. She denied, however, that suggestions were made to her as to what she may have seen on the day of the murder.
(ii) The Evidence of Mr. Patrick Hammond
35 Mr. Patrick Hammond, a railroad employee who had done a "substantial amount" of work on Mr. Thatcher's vehicles, testified that he saw Mr. Thatcher, on the day in question, driving in Moose Jaw at approximately 5:30 p.m. In cross‑examination, he acknowledged that, when he was interviewed by the police a few days after the murder, he did not inform the police that he saw Mr. Thatcher. He stated that he did not think this information was important until after Mr. Thatcher was arrested and charged. Similar evidence as to Mr. Thatcher's whereabouts was given by Mr. Hammond in support of Thatcher's bail application.
(iii) The Evidence of Mrs. Sandra Silversides
36 The defence also called Mrs. Sandra Silversides, a government employee in Moose Jaw, as well as the appellant's constituency secretary and part‑time housekeeper. Mrs. Silversides is the sister of Patrick Hammond. Mrs. Silversides testified that she had arrived at the Thatcher residence in Moose Jaw at 5 o'clock and that, while Mr. Thatcher was not at home when she arrived, he came into the kitchen at approximately 6 o'clock to eat the Hamburger Helper she had prepared for dinner. She further stated that she left the Thatcher residence at 6:15 p.m. and that Gregory, Thatcher's son, called her at 7:30 that evening and asked her to come over because something had happened to his mother. She stated that when she arrived Mr. Thatcher was sitting in the kitchen staring at the wall.
37 On cross‑examination, Mrs. Silversides admitted that she gave a statement similar to her evidence at trial in an affidavit in support of Mr. Thatcher's bail application and that she "could have talked [with Thatcher] about what happened that night". She also stated in cross‑examination that she was suing the police for false arrest.
(iv) The Thatcher Sons
38 Regan Thatcher testified that he was at home with his father at the time of the earlier shooting and also when his mother was murdered. He stated that, on the day of the murder, he came home from school between 4:00 and 4:30 p.m., that his father came in about 5:30 p.m. and that he, his brother, his father and Mrs. Silversides ate dinner at about 6 o'clock.
39 Gregory Thatcher testified that he arrived home from school earlier than his brother, at about 3:45 p.m., and saw his father, who left shortly thereafter to go to the ranch. At about 5:15 or 5:30 p.m., his father returned. His evidence as to what occurred subsequently was similar to that given by his brother and Mrs. Silversides.
(v) The Evidence of Mr. Anthony Merchant
40 Mr. Merchant, a lawyer and a one‑time member of the Legislative Assembly, testified that he became acquainted with Colin Thatcher in the early 1970's. He subsequently became Thatcher's counsel in relation to the appellant's matrimonial disputes.
41 In addition to testifying as to Mr. Thatcher's whereabouts the night Mrs. Wilson was wounded, Mr. Merchant testified that, on the night she was killed, one of his partners called to tell him that there appeared to have been a shooting at the Wilson residence. He stated that he immediately called Thatcher at his home, at "about 6:15 p.m." and passed on this information. Shortly thereafter, a reporter came to his house who told him that perhaps Mrs. Wilson had been killed. He stated that he "waited a bit of time" and then called the appellant again, "shortly after seven o'clock", with that information, informed him that he was going out, and gave Thatcher a number at which he could be reached should the police arrive. Merchant then went to the Wilson residence and spoke to a police officer who confirmed that Mrs. Wilson indeed had been killed. He testified that he then telephoned Thatcher again with the news, at approximately 7:20 p.m. The next morning, he advised Thatcher that he had a legal right to take custody of his daughter Stephanie. He testified that he, Thatcher, and Thatcher's son Gregory, thereafter personally attended the Kohli home, where Stephanie was staying, and that some physical force was used to take custody of Stephanie.
42 Mr. Merchant also testified as to Mr. Thatcher's whereabouts on the night Mrs. Wilson was wounded on May 17, 1981. He testified that he retained the original telephone record of a call he had made to Thatcher that evening, as well as the original record of two of the three calls to Thatcher the night Mrs. Wilson was killed. He described three mysterious break‑ins of his office, which resulted in the disappearance of these records, and stressed that these break‑ins occurred after Thatcher had been arrested and after Mr. Merchant had disclosed the existence of the records in an affidavit supporting Thatcher's bail application. Mr. Merchant implied that they were stolen because they were otherwise protected by the solicitor and client relationship. Mr. Merchant's testimony proved to be incorrect. On the day following his testimony, defence counsel addressed the court as follows:
Thank you, My Lord. My Lord, just prior to calling my next witness, I wonder, there is a matter I would like to address you as an officer of the court, and I just mentioned it briefly to my Learned Friend and I think it should be done by way, in my view as an officer of the court, as a brief submission so that the evidence is clear before the Jury and there is no misconception. I received a telephone call this morning at nine thirty from Mr. Merchant, who of course was here yesterday, who advised me that he had checked with his partners in Regina and that the break‑in occurred before, and I think this is very important, and I want to clarify it, the break‑ins occurred before Mr. Thatcher was arrested and of course that certainly wasn't what he indicated to us in his cross‑examination to us yesterday. And as an officer of the court I want that raised and clarified now, My Lord. Mr. Kujawa was kind enough to agree that it would be appropriate for me to rise and address you on it at this time. Mr. Merchant advised me of that at nine‑thirty this morning when I was in the barrister's lounge by telephone. I wish to bring it to your attention and the attention of the Jury.
(vi) The Evidence of Colin Thatcher
43 Colin Thatcher testified for more than two days. With respect to the earlier unsuccessful attempt on his ex‑wife's life, he testified that on the evening in question he was with his son Regan at home, and that they were opening up the swimming pool for the summer. As to the day his ex‑wife was killed, Mr. Thatcher testified that he spent the morning of January 21 at his ranch in Caron, that he went to his residence in Moose Jaw over the noon hour to do some paper work and odds and ends, and that he returned between 4:00 and 4:30 in the afternoon to his ranch. He stated that he checked his cattle for approximately half an hour and then returned home to Moose Jaw. On his way home, in Moose Jaw, Thatcher stated that he exchanged waves with Mr. Hammond. His testimony as to his subsequent whereabouts on that evening parallelled that given by Mrs. Silversides, his sons and Mr. Merchant.
44 Thatcher also testified as to his relationship with Lynn Mendell. He said he met her in October, 1980 in Palm Springs, California, and that they got along well but that she "had a misconception...that there was some remote possibility that we might be getting married". He denied several aspects of her testimony. First, he denied that he went down to Palm Springs a few days after the first shooting, saying it was more like four or five weeks after the event. Second, he denied telling her in relation to that shooting that he donned a disguise, staked out a visibly accessible area and only wounded Mrs. Wilson because he did not gauge the thickness of the kitchen window. Third, though he testified that six or seven days after his ex‑wife was killed he went to Palm Springs and spent some time with Ms. Mendell, he denied telling her that it was "a strange feeling to blow your wife away". He testified instead that Ms. Mendell asked him whether he killed her and he stated, "I cannot imagine what a strange feeling that that would be. No, of course not." Fourth, he denied packaging a revolver in a toy shower box and bringing it to Canada. He described this allegation as a "pretty good trick", concocted by Ms. Mendell.
45 With respect to the gun and bullets, he acknowledged that he had bought a .357 Magnum Ruger revolver plus a holster and ammunition but, as stated, he denied bringing it back to Canada. He stated that it was stolen from his condominium in Palm Springs and he suspected a cleaning woman took it. He also admitted using Hollow Point bullets, but only to practice shooting in the desert. He stated he knew nothing about the holster found in his car by Mr. Guillaum; he testified that his holster was of a different type and had his name on it.
46 In his examination‑in‑chief, Thatcher stated further that he had no explanation as to why a credit card invoice would be present eight feet from the Wilson's garage door on the night of the murder. In cross‑examination, he suggested that it may have been planted by someone.
47 With respect to the evidence given by Gary Anderson about being asked by Thatcher to obtain a silencer for a weapon, and as to picking up and cleaning the car and burning items contained in it a few days after the murder, Thatcher stated that these stories too were concocted. He said his initial contact with Mr. Anderson grew out of an attempt in November 1980 to purchase or rent land from the Andersons. No arrangement was concluded and the matter was left open so that Mr. Anderson would have a chance to discuss the proposition with his mother. Anderson contacted him a few months later to inform him that the land would be rented to someone else. During that meeting, the conversation shifted to the subject of Ron Graham. Thatcher testified that Anderson told him that Graham may have been "cutting corners" in his construction work, and that he, Thatcher, agreed to give Anderson some money to cover expenses while checking out this possibility. That spring, Thatcher stated that he met Anderson on a country road and the latter told him that two men from Calgary were coming into town. Thatcher told Anderson where he would be the following day, and Anderson thereafter showed up with a man Thatcher subsequently knew to be Charlie Wilde, though he did not know Wilde "from a bale of hay" until the preliminary hearing. At that meeting, they told him that they could "lay a good licking on [Ron Graham] or ...go even further than that". Thatcher told them that he wasn't interested in the idea, though he agreed to pay Anderson $500 expenses in connection with the trip from Calgary.
48 After the murder, Thatcher testified that he saw Anderson in Regina in late 1982. After exchanging a few remarks, they went to the appellant's parking space behind the Legislature. There Anderson complained that his car had been towed away from the Legislative grounds. Thatcher testified that he arranged for its return, and later talked to Anderson in the car‑‑a Dodge‑‑where inadvertently he left his top coat, scarf and gloves. He said he did not realize this until some time later, and did not see Anderson again until May 1, 1984, the day their conversation was recorded by body‑pack.
49 Thatcher also testified about this recorded conversation, and said he was speaking in "Caron slang". He explained various parts of the conversation to the jury. For example, he said he believed Anderson was referring to the top coat, scarf, and gloves, when he said: "Umm, I got rid of the ah stuff outta' the car." And he, Thatcher, was referring to a Tansy Mustard Plant he spotted in the field when he said "son‑of‑a‑bitch" after Anderson said "Ahh, the other one." Thatcher said he talked to Anderson on this occasion because he was interested in knowing what the police were doing and saying to Anderson. Moreover, he stated that Anderson felt he had $500 coming to him, and that he, Thatcher, did not want a person of Anderson's temperament on his back. Anderson, he suggested, was capable of burning granaries or haystacks if annoyed. He wanted to keep on reasonably good terms with him. Accordingly, on Thursday evening, just before dark, he left the sum of $550 for Mr. Anderson at the spot where it was located by the police.
50 Thatcher also denied meeting with Charlie Wilde to give him money or information about Mrs. Wilson's travel plans so that she could be killed in the United States. He also denied using Anderson as a go‑between to arrange to have his wife murdered, and said he did not advance $15,000 for disbursement by Anderson.
51 With respect to the evidence given by Mr. Collver, Mr. Thatcher also told a different story. Thatcher testified that on New Year's Eve his and Collver's families went out to dinner, consumed a great deal of alcohol, and returned to Collver's dude ranch for a New Year's Eve party. He testified that "Dick is the cheapest drunk in the world" and that, the next morning, when he went down to the kitchen, Collver was sitting there in "that never never land when you are still half drunk and hung over". Thatcher stated that at that time he sought advice from Collver on the legal options available to him in relation to his marital problems, and that Collver told him that he could go to court, settle, or kill his wife. Thatcher testified that Collver was not serious about the third option, that Collver was hung over and used the third option as a rhetorical way of attempting to persuade Thatcher to settle with his wife.
52 In his charge to the jury, the trial judge explained the position of the defence briefly as follows: (i) that the evidence did not satisfy the duty on the Crown to establish that Thatcher either killed JoAnn Wilson or that she was killed at his direction; (ii) that the composite drawings were obviously not likenesses of Thatcher; (iii) that the credit card receipt was planted on the scene by someone who wanted to attach blame to Thatcher; (iv) that the tape recorded the statement of Thatcher that he was at home with four people the night of the murder; (v) that Thatcher was seen in Caron when he was supposed to be stalking JoAnn Wilson; (vi) that ammunition of the type used to kill JoAnn was readily available in Canada contrary to police evidence; (vii) that Lynn Mendell was seeking money and power if she could not get Thatcher by marriage she would get him another way; (viii) that Wilde would do anything for a dollar; (ix) that Anderson failed on the tape because he did not dare attempt to get an admission of guilt from Thatcher; and finally, (x) that witnesses testified that Colin Thatcher had been in Moose Jaw and at his ranch the evening of January 21, 1983, the day of the murder.
V
The Charge and the Verdict
53 In his charge to the jury, despite objection from counsel for the defence, the trial judge indicated to the jury the following direction on potential culpability:
At the outset I should explain to you that there are two ways in which the offence of murder could have been committed by this accused. If you find on the evidence and are satisfied beyond a reasonable doubt that Colin Thatcher did that act or actions himself that caused the death of JoAnn Wilson, it is open to you to find him guilty of murder. Alternatively, if you find that acts done or performed by the accused resulted in the death of JoAnn Wilson and were done with the intent that they cause her death, even though the actual killing was done by another or others, it is open to you to find this accused guilty of murder.
54 The trial judge also referred the jury to s. 21(1) of the Criminal Code and further commented:
Colin Thatcher is charged with committing the offence of murder. If you do not find that he did the act of murder himself, he is equally guilty if you find and are satisfied that he either aided or abetted another or others in its commission.
During the charge, the trial judge alluded to the argument of defence counsel that if the jury accepted the evidence of even one of the witnesses who said he was in Moose Jaw at the time of the murder, Thatcher could not have committed the murder. Counsel also told the jury that as the Crown had not produced any evidence that anyone else killed JoAnn Wilson it was the duty of the jury to find him not guilty. The trial judge said:
With respect, I am unable to agree with this argument. I tell you as a matter of law that the fact that the Crown cannot adduce evidence that another individual or individuals actually did the act, does not preclude you from finding that the killing was done on behalf of Colin Thatcher and it is still open to you to return a finding of guilty of murder if you so find.
The judge left the jury with three possible verdicts: not guilty, guilty of first degree murder, or guilty of second degree murder. The jury deliberated from Friday, November 2, 1984 through until Tuesday, November 6, 1984 before returning the verdict of guilty of the offence of first degree murder contrary to s. 218 of the Criminal Code .
VI
The Court of Appeal
55 The Saskatchewan Court of Appeal dismissed the appeal, [1986] 2 W.W.R. 97. Hall J.A. was of the opinion that no error of law had been shown that would justify the Court of Appeal setting aside the conviction. The charge to the jury, when read as a whole, was fair and correct. Hall J.A., at p. 105, held that:
The direction of the trial judge to the jury, when reduced to its essence, was that if they found beyond a reasonable doubt that the appellant either killed the deceased himself or caused someone else to kill her, they should find him guilty as charged. Against the background of the evidence adduced that was all that was necessary to properly place the issue before the jury.
and:
In my opinion, it would have been most unreasonable for the jury to have reached any verdict other than it did. It is not a case where it is necessary to consider the curative provisions of Criminal Code contained in s. 613.
56 Tallis J.A. delivered a more lengthy judgment dismissing the appeal, in which Bayda C.J.S. and Brownridge J.A. concurred. He found the situation in this case somewhat analogous to R. v. Farrant, [1983] 1 S.C.R. 124, where this Court stated, at p. 139:
Murder, like other offences in the Criminal Code , such as theft, may be committed in one of several ways. Culpable homicide may be murder under either s. 212 or s. 213. Both sections begin with the words "Culpable homicide is murder where". Farrant was charged with murder. He might fall foul of either section. There was evidence upon which the jury could find a forcible confinement, and the trial judge was correct in stating that, as a matter of law, he was obliged to put both s. 212 and 213 to the jury.
Tallis J.A. also adopted the reasoning of Martin J.A. in R. v. Sparrow (1979), 51 C.C.C. (2d) 443 (Ont. C.A.), at p. 458, quoted with favour by McIntyre J. in R. v. Isaac, [1984] 1 S.C.R. 74, at p. 81:
I am of the view that it is also appropriate, where an accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, to direct the jury with respect to the provisions of s. 21 of the Code, even though the identity of the other participant or participants is unknown, and even though the precise part played by each participant may be uncertain.
Tallis J.A., at p. 167, held there was evidence on which the alternative theory of criminal liability could have been placed before the jury for their consideration:
If the jury concluded, in the light of the description of the person at the scene, that the appellant was not the actual killer, it was still open to them to find that he was a party to the killing. A brief reference to some of the direct and circumstantial evidence shows that a basis did exist for a juror to have concluded that the actual killing was committed by someone else while the appellant was at his home in Moose Jaw, but that the appellant had been instrumental in the killing.
With respect to the argument that the trial judge erred in failing to instruct the jury that they must be unanimous in the way in which the murder was committed, Tallis J.A. observed, as a starting point, that this Court found no error in the charge in R. v. Farrant. In that case, although the trial judge directed the jury on alternate ways or means by which the Crown could prove murder beyond a reasonable doubt, he did not direct the jury that they must be unanimous as to the ways or means by which the murder was committed.
57 Tallis J.A. concluded that the jury members were entitled to reach a unanimous verdict by separate paths of reasoning and that the trial judge was not obliged to direct the jury on unanimity in the manner contended for by counsel for Mr. Thatcher. Tallis J.A. referred to passages from "Alternative Elements and Included Offences" by Glanville Williams, [1984] C.L.J. 290, at pp. 291‑92; R. v. Tuckey (1985), 46 C.R. (3d) 97 (Ont. C.A.); R. v. Bouvier (1984), 11 C.C.C. (3d) 257 (Ont. C.A.), at pp. 264‑65. On the contention that the verdict was unreasonable and could not be supported by the evidence, Tallis J.A., at p. 183, said:
It may fairly be inferred that the jury accepted the Crown evidence that the appellant was involved either directly or indirectly in the killing of his former wife. In so doing, it is clear they rejected the appellant's contention that he was not criminally involved in the killing, and were satisfied the Crown had proved its case beyond a reasonable doubt. There was overwhelming evidence before the jury to support their verdict. Accordingly this ground of appeal must fail.
58 Vancise J.A. wrote in dissent. He would have allowed the appeal and ordered a new trial but, at p. 197, having reviewed the evidence in detail, he concluded:
There is evidence which if believed, would indicate that the appellant killed or caused the death of JoAnn Wilson.
He went on, at p. 197, to say:
The appellant denied killing his wife or causing her death. He testified at great length and explained the comments made by Lynn Mendell with respect to statements allegedly attributed to him, as well as the comments made by Anderson. If those comments were believed by the jury, there was doubt, reasonable doubt which would have resulted in his acquittal.
Vancise J.A. was of the opinion the trial judge was wrong in putting s. 21 to the jury and even if not in error in putting s. 21 to the jury, he erred in the manner in which he instructed them on its application. He said, at p. 205:
In my opinion, it was essential for the trial judge to instruct the jury on the application of s. 21 to the facts in this case by dealing with the following matters: the identity of the person seen leaving the Wilson garage; the identity of the person in the car observed in the vicinity of the Wilson residence; the fact that the car was assigned to the appellant; the import of the credit card receipt; any evidence which connected the appellant to an unknown killer; and, more importantly, the defence witnesses who placed the appellant at home at the time of the murder. By failing to deal with the evidence in that manner, the charge was confusing, particularly in light of the Crown's emphasis on the appellant's guilt as principal and not as an aider and abetter. When one couples that with the statement of the trial judge, that the failure of the Crown to adduce evidence that another individual actually did the act would not preclude the jury from finding that the killing was done on behalf of the appellant was, an invitation to the jury to find, in the absence of evidence that there was another person acting together with the appellant, that the appellant could be an aider and abetter to the offence. Such nondirection, in my opinion, amounts to misdirection.
With respect to the contention that the trial judge erred in failing to instruct the jury that they were required to be unanimous with respect to the guilt of Thatcher as principal simpliciter or as an aider or abettor of the offence, Vancise J.A., at p. 207, held:
Here the offence could be committed by the appellant as principal or as a party as defined by s. 21 of the Code. The appellant was charged with a single offence carrying a single conviction and the jury need not agree on any particular way in which the offence was committed. This ground of appeal fails.
Vancise J.A. did not think the trial judge gave a fair picture of the defence. In his view the defence of alibi was not treated fairly. The trial judge's handling of the evidence of one of the witnesses, Mr. Merchant, and the perfunctory manner in which he dealt with remaining defence evidence was, as I have indicated, in the opinion of Vancise J.A., tantamount to withdrawing the fact finding function from the jury. Another flaw, in the view of Vancise J.A., was that the jury members were instructed to determine which of two conflicting versions of evidence they would accept. They were instructed to accept one and reject the other. This, in his view, constituted an error in law.
VII
The Issues Before this Court
59 The issues can be stated as follows:
(i) No Evidence to Support Crown's Alternate Theory
Was there an evidentiary foundation to justify putting to the jury the Crown's alternate theory of the case that Thatcher was a party to the offence under s. 21, rather than a principal?
(ii) Failure to Relate Law to the Facts Regarding the Crown's Alternative Theory
Even if there was sufficient evidence, did the trial judge fail to instruct the jury adequately on the application of the legal principles of s. 21 to the evidence in the case?
(iii) Jury Unanimity as to the Material Facts
Did the trial judge err by failing to instruct the jury that it had to be unanimous in relation to either whether Thatcher personally killed the victim or whether he aided and abetted another person to kill the victim?
(iv) The Nadeau Issue
Did the trial judge err in putting the jurors to a choice between accepting the evidence of some witnesses or accepting the evidence of Thatcher, thereby reducing the burden of proof? Can such an error be cured by s. 613(1)(b)(iii) of the Criminal Code ?
(v) Unfair Jury Charge
Did the trial judge adequately summarize the evidence or the theory of the defence?
60 I propose to deal with each of these issues in the above order. Before doing so, I should again point out that the primary theory of the Crown was that Thatcher personally killed JoAnn Wilson though it wished to leave open the possibility that Thatcher may have committed the murder indirectly, by hiring someone else to perform the physical act of killing. The trial judge, in charging the jury, rightly gave far more emphasis to the Crown's primary theory.
(i) No Evidence to Support the Crown's Alternate Theory
61 There is no merit whatsoever to this ground of appeal. At page 167 of his judgment, Tallis J.A. cites the following evidence:
(i) The jury could have inferred that the person in the car watching the Wilson residence in the days before the murder was someone other than the appellant, but that the car, which was identified as one checked out to the appellant, had been supplied to this person by the appellant.
(ii) The evidence of witnesses such as Collver, Mendell, Anderson and Wilde, indicated not only that the appellant had a motive for such a killing, but that he had been interested in hiring or getting someone else to do the actual shooting.
(iii) The calibre and type of bullet found in the skull of the deceased were consistent with the use of the appellant's .357 Ruger revolver in the shooting.
(iv) Anderson's evidence that he delivered a car and the revolver on the day of the murder support either theory.
62 In addition to the above, there is the evidence of witness Dotson regarding an individual leaving the scene of the crime at about the time of the crime. There is also the evidence on the tape, which, if Thatcher's explanations are not believed, are consistent with Thatcher having procured the death of his wife. And, of course, there is the alibi evidence of Hammond, Wright, Silversides and the Thatcher boys, which, if accepted at all, is consistent with the Crown's alternate theory.
63 In short, there is very strong evidence, particularly in relation to the murder weapon and the appellant's desire to kill his ex‑wife, connecting Thatcher with the crime. There is some evidence which, if believed, points to his not having committed the crime personally. The facts are for the jury, and the trial judge was correct not to preclude the jury from considering all the alternatives. There is, of course, no burden on the Crown to point to a specific, identified person as the personal assailant of the victim. The trial judge was cognizant of this fact and he rightly instructed the jury in the following way:
It is not your concern whether some other person or persons have neither been charged or found guilty of the offence of murder. Nor is it your concern whether or not the person who actually committed the crime is known. If you are satisfied from the evidence that JoAnn Thatcher was murdered and that this accused aided or abetted in the commission of the murder, it is open to you to find him guilty of murder. But again if the Crown has failed to satisfy you that Colin Thatcher either committed the murder or that someone else did so, aided and abetted by Colin Thatcher, then you must give him the benefit of the doubt and find him not guilty.
In my view, the case meets the requirements set out by Martin J.A. in R. v. Sparrow, supra, at p. 458 (approved by McIntyre J. in R. v. Isaac, supra):
I am of the view that it is also appropriate, where an accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, to direct the jury with respect to the provisions of s. 21 of the Code, even though the identity of the other participant or participants is unknown, and even though the precise part played by each participant may be uncertain. It is, in my view, however, improper to charge the jury with respect to the liability of the accused as a party under s. 21 where there is no evidence proper to be left with the jury that more than one person was actually involved in the commission of the offence.
Since there was such evidence, the trial judge's direction concerning s. 21 of the Code was perfectly proper.
(ii) Failure to Relate the Law to the Facts Regarding the Crown's Alternative Theory
64 The trial judge read the contents of s. 21(1) to the jury and referred, correctly, to what was meant by the term "aiding" or "abetting": "intentional encouragement or assistance in the commission of the offence". As stated, he pointed out that the actual perpetrator need not be identified. He thus accurately stated the law as to s. 21(1).
65 Instead of carving his jury charge into discrete sections in which he reviewed the evidence consistent with Thatcher having personally committed the murder, Thatcher having committed the murder by means of s. 21(1), and, finally, Thatcher not having committed the murder at all, the trial judge simply went through the evidence of each witness in turn. I do not think he was wrong in this. Much of the Crown evidence was consistent with either Crown theory, and much of the defence evidence was consistent with either Thatcher's innocence or his guilt under s. 21(1). It is not incumbent on a trial judge to go through the evidence in a repetitive fashion which could only have bored the jury. Nor do I think we should assume jurors are so unintelligent that they will fail to see the obvious: the presence of a government car at the home of the victim, when combined with evidence suggesting that the man in the car was not Thatcher, may point to Thatcher's having aided and abetted; and surely they can discern that the alibi evidence, if believed, when combined with the murder weapon evidence, may point to a similar conclusion.
66 Furthermore, it is obvious that the two Crown theories are not legally different views of what happened. The whole point of s. 21(1) is to put an aider or abettor on the same footing as the principal. To stress the difference between the Crown theories might leave a jury with the erroneous impression that it is vital for the jurors to decide individually and collectively which way the victim was killed. But the correctness of this point hinges on issue (iii), below, and I will pursue it in that context.
(iii) Jury Unanimity as to the Material Facts
67 This is the most difficult issue presented by the case. I have noted that as there was no dissent on the point in the Court of Appeal, leave of this Court was required and was granted.
68 I begin my analysis of this issue by quoting s. 21(1) of the Criminal Code :
21. (1) Every one is a party to an offence who
(a) actually commits it,
(b) does or omits to do anything for the purpose of aiding any person to commit it, or
(c) abets any person in committing it.
This provision is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant. It provides that either mode of committing an offence is equally culpable and, indeed, that whether a person personally commits or only aids and abets, he is guilty of that offence, in this case, causing the death of JoAnn Wilson, and not some separate distinct offence. This is in contrast with the provisions of the Code relating to accessories after the fact or conspirators (ss. 421 and 423) which create distinct offences for involvement falling short of personal commission.
69 In Chow Bew v. The Queen, [1956] S.C.R. 124, Locke J. (Taschereau and Fauteux JJ. concurring) explained the effect of the predecessor provision to s. 21 at pp. 126‑27:
The first sentence of s. 69 provides, inter alia, that every one is a party to and guilty of an offence who actually commits it, or does or omits an act for the purpose of aiding any person to commit the offence, or abets any person in committing it. This section appeared as s. 61 when the Code was first enacted in 1892.
As it affects the present case, the matter is thus stated in the 10th Edition of Russell on Crime, at p. 1853, as follows:
Thus where several persons are together for the purpose of committing a breach of the peace, assaulting persons who pass, and while acting together in that common object, a fatal blow is given, it is immaterial which struck the blow, for the blow given under such circumstances is in point of law the blow of all, and it is unnecessary to prove which struck the blow.
There was evidence in the present matter from which a jury might properly draw the inference that the appellant and Cathro had meant to inflict grievous bodily injury to Ah Wing and had aided and abetted each other in doing so for the purpose of facilitating the commission of the offence of robbery and that his death had resulted. If the jury chose to draw this inference, the offence was murder as defined by s. 260, whether they or either of them meant that death should ensue or knew that death was likely to ensue. In such circumstances, it would be a matter of indifference which of the two struck the fatal blow or inflicted the fatal injury, since each would be liable in law for the act of the other.
Locke J.'s discussion points to one of the principal policy arguments for not requiring jury unanimity as to which of the subsections of s. 21 grounds the criminal liability of a particular accused: it would otherwise be open to co‑accused to escape conviction by imbuing members of a jury with doubt as to which of the co‑accused physically performed the criminal act, even if the jurors entertained no doubt that any individual co‑accused either personally committed the crime or else aided and abetted in its commission. This policy concern was recognized long ago by Pollock C.B. in R. v. Swindall and Osborne (1846), 2 Car. & K. 230, 175 E.R. 95, a case which predated the abolition of the distinction between principals and accomplices.
70 The Court canvassed the authorities in considerable detail in R. v. Harder, [1956] S.C.R. 489, and articulated the proposition that it was unnecessary for the Crown to specify in an indictment that an accused was being charged as a party rather than as a principal simpliciter. Rand J. at p. 498 refers to an old English case, R. v. Folkes and Ludds (1832), 1 Mood. 354, 168 E.R. 1301, in which, upon Rand J.'s view of the case, the judges held that a defendant could be convicted by a jury on a count of having feloniously ravished the prosecutrix "either on the evidence going to the ravishment or that going to his secondary role as abettor". Kellock J. referred with approval at pp. 500‑01 to the following passage from Sir Henri Elzéar Taschereau's work on the Criminal Code :
The prosecutor may, at his option, prefer an indictment against the accessories before the fact, and aiders and abettors as principal offenders, whether the party who actually committed the offence is indicted with them or not; R. v. Tracey, 6 Mod. 30. For instance: A. abetted in the commission of a theft by B. The indictment may charge A. and B. jointly or A. or B. alone as guilty of the offence, in the ordinary form, as if they had actually stolen by one and the same act....
In every case where there may be a doubt whether a person be a principal or accessory before the fact, it may be advisable to prefer the indictment against him as a principal, as such an indictment will be sufficient whether it turn out on the evidence that such person was a principal or accessory before the fact, as well as where it is clear that he was either the one or the other but it is uncertain which he was. [Emphasis added.]
To the same effect, Kellock J. cites passages from Russell on Crime (10th ed. 1950) and Archbold's Pleading, Evidence & Practice in Criminal Cases (33rd ed. 1954).
71 I should perhaps note that the old common law authorities stand for the proposition that an indictment may charge all who are present and abet the act as principals in the first degree. As Fauteux J. states in Harder, at p. 492:
At common law, the actor or actual perpetrator of the fact and those who are, actually or constructively, present at the commission of the offence and aid and abet its commission, are distinguished as being respectively principal in the first degree and principals in the second degree; yet, in all felonies in which the punishment of the principal in the first degree and of the principals in the second degree is the same, the indictment may charge all who are present and abet as principals in the first degree.
Thus, the common law generally drew no distinction between a principal in the first degree (someone who actually committed the offence) and a principal in the second degree (someone who was actually or constructively present but who only aided and abetted in the commission of the offence) for the purposes of indictment. The upshot of this rule was stated in East, Pleas of the Crown (1803), vol. 1, at p. 350: "the blow of one is, in law, the blow of all". The common law did, however, draw a distinction between principals and accessories. Accessories were those who conspired with the principal in the first degree or who aided and abetted him but were neither actually nor constructively present at the scene of the crime. See R. v. Smith (1876), 38 U.C.Q.B. 218, at pp. 227‑28. Thus, if Thatcher aided and abetted, rather than personally committed, I do not think it is contended that he was necessarily physically present at the murder. Therefore, his case might well not fall within the old common law rule permitting one charge but two different possible modes of participation in the offence. But this is precisely the distinction that disappeared when Parliament abolished the common law distinction between principals and accessories. As Fauteux J. states in Harder, at p. 493, in relation to s. 21's predecessor:
This Imperial statute [24 & 25 Vict. c. 94], later adopted into Canadian law (R.S.C. 1886, c. 145) practically brought to an end the distinctions between accessories before the fact and principals in the second degree.
By the enactment of section 61, the predecessor of section 69, these distinctions in the substantive law entirely disappeared from our criminal laws when codified in 1892. With them, of course, also disappeared, because being made no longer necessary, the relevant adjective rules related to the framing of the indictment of such persons who, not actually committing the offence charged, were then made, by statute, principals and equally party to, guilty of and punishable for the offence as if actually committed by them. It is unthinkable that, getting rid of the difficulties arising out of these prior distinctions, Parliament would, in the same breath, have created new ones by refusing to the Crown the right to indict‑‑which right it had before, under common and statutory law‑‑as principal simpliciter, either as a principal in the second degree or an accessory before the fact, and this, under the regime of this new law holding each and all particeps criminis as being nothing less than principals.
72 Thus, s. 21 has been designed to alleviate the necessity for the Crown choosing between two different forms of participation in a criminal offence. The law stipulates that both forms of participation are not only equally culpable, but should be treated as one single mode of incurring criminal liability. The Crown is not under a duty to separate the different forms of participation in a criminal offence into different counts. Obviously, if the charge against Thatcher had been separated into different counts, he might well have been acquitted on each count notwithstanding that each and every juror was certain beyond a reasonable doubt either that Thatcher personally killed his ex‑wife or that he aided and abetted someone else who killed his ex‑wife. This is precisely what s. 21 is designed to prevent.
73 In sum, this Court has held that it is no longer necessary to specify in the charge the nature of an accused's participation in the offence: Harder. Moreover, if there is evidence before a jury that points to an accused either committing a crime personally or, alternatively, aiding and abetting another to commit the offence, provided the jury is satisfied beyond a reasonable doubt that the accused did one or the other, it is "a matter of indifference" which alternative actually occurred: Chow Bew. It follows, in my view, that s. 21 precludes a requirement of jury unanimity as to the particular nature of the accused's participation in the offence. Why should the juror be compelled to make a choice on a subject which is a matter of legal indifference?
74 This conclusion, however, is said by the appellant to run counter to a recent decision of the English Court of Appeal, R. v. Brown (1984), 79 Cr. App. R. 115, to which I now turn. In R. v. Brown, the appellant was charged with fraudulently inducing investments, contrary to s. 13(1)(a) of the Prevention of Fraud (Investments) Act, 1958 (U.K.), 6 & 7 Eliz. 2, c. 45, which provides the following:
13.‑‑(1) Any person who, by any statement, promise or forecast which he knows to be misleading, false or deceptive...induces or attempts to induce another person‑‑
(a) to enter into or offer to enter into ‑‑
(i) any agreement for, or with a view to, acquiring, disposing of, subscribing for or underwriting securities...shall be guilty of an offence....
More specifically, the Crown alleged that the appellant had fraudulently induced four persons to enter into agreements for acquiring shares in a company, knowing the agreements to be misleading. Each count with which he was charged contained particulars of a number of different statements relied on by the prosecution as constituting the inducement referred to in s. 13(1)(a) of the Act.
75 The jury asked the judge two questions. The first was whether the defendant would be guilty on a whole count if he was found guilty of only one part of that count. The second was whether the defendant was guilty on the whole count and the verdict unanimous if individual members found him guilty of different parts of the count. With respect to the first question, the trial judge is said by Eveleigh L.J. of the Court of Appeal, at p. 117, to have responded:
...if you are satisfied that, with the necessary state of mind, the defendant made the statements or representations which are alleged in the indictment in relation to each count, it is sufficient if you find that he made one or some or all of them but you do not have to find that he made them all.
With respect to the second, more relevant, question, he stated:
Members of the jury, the answer to that is this: what you have to be satisfied of in relation to each of the counts is that the defendant dishonestly made the statements and by making them induced the victim concerned to act in the way set out in the count.
...It does not matter that some of you are satisfied that one of the various statements is made out, and others of you are satisfied not about that statement being made out but that another is made out. It is sufficient if you are all agreed that there was a dishonest inducement. So if you find some of you are satisfied that representation A was made out, some of you are not satisfied about that but are satisfied that representation B was made out, then it does not matter, provided that you are all satisfied that there was the dishonest inducement made and that it operated upon the mind of the person to whom it was made and caused him to act in the way that he did.
76 The Court of Appeal held that the trial judge had erred by not informing the jury that it must be agreed that every single ingredient necessary to constitute the offence has been established. Eveleigh L.J., at p. 119, stated:
In a case such as that with which we are now dealing, the following principles apply: 1. Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury .... 2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged.
77 The appellant, relying on a recent article by Mark A. Gelowitz entitled "The Thatcher Appeal: A Question of Unanimity" (1986), 49 C.R. (3d) 129, argues that just as in Brown, where the English Court of Appeal held that "each ingredient of the offence must be proved to the satisfaction of each and every member of the jury," this Court ought to hold that the nature of Thatcher's participation must be proved to each and every juror before he can be convicted of "unlawfully causing" JoAnn Wilson's death.
78 The appellant accepts, as any reasonable person must, that the jurors need not be unanimous with respect to their acceptance or rejection of each individual piece of evidence. In a long, complicated trial it is absurd to suppose that twelve people could form the same opinion of each item of evidence, and it is absurd to suppose that the Crown could ever prove or explain beyond a reasonable doubt every detail of a murder. A defendant at a murder trial should obviously not be acquitted if some jurors think a .38 calibre bullet was used and others think that a .357 calibre bullet was used. The appellant submits, however, that the jurors ought to be unanimous as to the "material facts" making out the offence. He does not provide a definition of "material facts", except to rely on Mr. Gelowitz for the proposition that jurors must be "in substantial agreement as to just what an accused has done". This argument, however, overlooks the whole point of s. 21, as I have said, which makes the distinction between principals and aiders and abettors legally irrelevant.
79 Moreover, if Brown is correct, and this need not be decided in the present appeal, I am far from convinced that it lays down a proposition as sweeping as the appellant suggests. Eveleigh L.J. acknowledged that jurors could arrive at their conclusions by different routes. Jurors "may be able to say that, whichever way one looks at it, the case is proved". To be sure, Eveleigh L.J. also articulated the propositions referred to previously. But, in my opinion, s. 21 does not create "ingredients" in the offence of murder, in the same way that each particular "misrepresentation" was an ingredient in the offence of Brown. As I read Eveleigh L.J.'s remarks, his second proposition is restricted to cases in which "a number of matters are specific in the charge". This would be analogous to the case when there were several counts in an indictment. If Thatcher had been charged on two counts, of course unanimity would be required in respect of any count for which he is convicted. Such a conclusion flows from the proposition that a verdict stands for guilt, beyond a reasonable doubt, of that for which the accused has been charged. In the present case, Thatcher was charged that he did "unlawfully cause the death of JoAnn Kay Wilson and did thereby commit first degree murder". The charge was carefully worded, and there is no injustice in his conviction on the indictment irrespective of whether the jurors shared the same view as to the most likely manner in which Thatcher committed the murder.
80 When one considers the implications of the appellant's submission, it becomes even clearer that it is without merit. In the present case there were doubtless three alternatives in the minds of each of the jurors:
(a) Thatcher personally killed his ex‑wife;
(b) he aided and abetted someone else to do so;
(c) he is innocent of the crime.
81 The jurors were told that if any of them had a reasonable doubt regarding (c), Thatcher should be acquitted. Every single juror was, evidently, solidly convinced that (c) was simply not what occurred. Each one was certain that the true state of affairs was (a) or (b). Even if we suppose, as the appellant would have us do, that the jurors individually went beyond thinking in terms of (a) or (b) and specifically opted for one theory, and that some jurors thought only (a) could have occurred and others thought only (b) could have occurred, I am far from convinced that there would have been any injustice from convicting Thatcher. As stated, there is no legal difference between the two. Much is made of the fact that (a) and (b) are factually inconsistent theories, in the sense that evidence proving (a) tends to disprove (b). But this is really only true of one category of evidence, namely identification and alibi evidence. The overwhelming mass of evidence against Thatcher was consistent with either theory. In particular, the evidence tracing the murder weapon to Thatcher was highly probative, as were his statements to various witnesses (prior to the murder) of his intention to kill JoAnn Wilson, and his statement to Lynn Mendell (after the murder) that he had "blown away" his wife.
82 The appellant's suggestion would fail to achieve justice in a significant number of cases. Suppose the evidence in a case is absolutely crystal clear that when X and Y entered Z's house, Z was alive, and when X and Y left, Z was dead. Suppose that in their evidence each of X and Y says that the other of them murdered Z but each admits to having aided and abetted. Are X and Y each to be acquitted if some of the jurors differ as to which of X and Y actually committed the offence? I can see absolutely no reason in policy or law to uphold such an egregious conclusion. The appellant's submission ignores the very reason why Parliament abolished the old common law distinctions: namely, they permitted guilty persons to go free. As Professor Peter MacKinnon points out in, "Jury Unanimity: A Reply to Gelowitz and Stuart" (1986), 51 C.R. (3d) 134, at p. 135, if an accused is to be acquitted in situations when every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of the two ways, "it is difficult to imagine a situation more likely to bring the administration of justice into disrepute ‑‑ and deservedly so."
(iv) The Nadeau Issue
83 The appellant also argues that the trial judge erred in putting the jurors to a choice between accepting the evidence of some witnesses or accepting the evidence of Thatcher, thereby reducing the burden of proof. This submission is based on this Court's decision in Nadeau v. The Queen, [1984] 2 S.C.R. 570, where Lamer J., at pp. 572‑73, states:
The accused benefits from any reasonable doubt at the outset, not merely if `the two (2) versions are equally consistent with the evidence, are equally valid'. Moreover the jury does not have to choose between two versions. It is not because they would not believe the accused that they would then have to agree with Landry's version. The jurors cannot accept his version, or any part of it, unless they are satisfied beyond all reasonable doubt, having regard to all the evidence, that the events took place in this manner; otherwise the accused is entitled, unless a fact has been established beyond a reasonable doubt, to the finding of fact the most favourable to him, provided of course that it is based on evidence in the record and not mere speculation.
84 The trial judge, during his charge to the jury, made specific references to the conflict between the evidence given by Thatcher, and that of Anderson, Mendell and Collver. He stated the following:
The final witness for the defence was the accused, Colin Thatcher. Both his examination‑in‑chief and cross‑examination were very lengthy. I have been talking almost too long as it is and I do not propose to review his evidence in detail. Much of it related to the tape recording to which he admitted he was a party and you will determine whether you accept his version of the meaning to be attributed to the conversation he had with Gary Anderson.
Thatcher denies that he had anything to do with either of the two shootings of his wife and you will weigh his testimony against the other evidence before you and particularly I suggest against the evidence of Lynn Mendell and Anderson and Wilde.
The evidence of Thatcher is also in direct contradiction to that of Dick Collver with respect to the hiring of the hit man and it will be up to you to decide whose evidence you accept.
The Crown, quite properly, concedes that the passage, if it stood alone, would be bad in law as violating the principle in Nadeau. It submits, however, that such remarks have to be looked at in their context within the whole of the charge to the jury. More specifically, the Crown argues that the charge as a whole made it clear that the jury was not obliged to take a binary view of the evidence (accept or reject it) but had to give effect to reasonable doubt.
85 By my count, the trial judge correctly stated the reasonable doubt principle on at least eleven occasions during his charge to the jury. One such occasion was directly preceding the offending passages relied upon by the appellant. He said:
I must tell you that as a matter of law that it is not incumbent upon the accused to adduce evidence to satisfy you that an alibi has been proven. If evidence as to alibi raises a reasonable doubt as to the presence of Thatcher at the scene when the murder was committed, you must give him the benefit of that doubt and conclude he was not there.
Moreover, early on in his charge he stated:
It is up to you to weigh the evidence of each witness, one against the other, and determine what you find to be true and reject what you do not believe. [Emphasis added.]
When the offending passages are read with the above and subsequent admonitions, it is clear‑‑and, I believe, must have been clear to the jury‑‑that the trial judge means "accept beyond a reasonable doubt" when he refers to "accepting" Crown evidence, and means "accept as raising a reasonable doubt" when he refers to "accepting" defence evidence. I believe there was no error made when the charge is read as a whole. It is therefore unnecessary to deal with the Crown's submissions with respect to s. 613(1)(b)(iii) of the Code.
(v) Unfair Jury Charge
86 The gist of the complaint is that the trial judge revealed to the jurors his own perception of the accused's guilt, through undue emphasis on the Crown's evidence and inadequate summary of the defence. The defence evidence was simple, however, and the Crown's case was complex, relying on circumstantial evidence from a large number of witnesses. It is simply inappropriate to try to measure the fairness of the charge by reference to quantity.
87 Although there were a few unfortunate expressions used by the trial judge, a juror would have to read in a lot to surmise that the trial judge thought Thatcher guilty or his witnesses generally not credible, with the possible exception of Mr. Merchant. It should be noted in this respect that at the outset of his charge the trial judge was clear as to the respective duties of the judge and jury. He stated:
Your duty as jurors is to determine the guilt or innocence of this accused from the evidence that's been placed before you. This is not a light duty because if a crime has been committed, in this case, the murder of a female individual, it is your obligation to so find. Likewise you have a duty to this accused to see that he is not improperly convicted.
Your functions and mine are separate and distinct. You are the sole arbiters of the facts. In that area you are supreme. It is your duty and your responsibility and yours alone to decide those facts in accordance with the oaths you took at the outset of the trial. If I express an opinion with respect to the evidence, and I probably will, you are free to disregard my opinion for that is your field and you make the findings of fact in accordance with your individual conscience.
88 Moreover, the jury was instructed that it could obtain clarification or a review of any or all of the evidence presented at trial. On the second day of their deliberations, after requesting information the previous evening, the jury reviewed portions of the evidence given by numerous witnesses, including Thatcher himself. In my view, the trial judge gave a fair picture of the defence. As Lord Goddard C.J., in R. v. Clayton‑Wright (1948), 33 Cr. App. R. 22, at p. 29, states, a trial judge is not required "to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence". The jury deliberated for approximately four days. They returned a verdict of guilty. In my opinion, the charge of the trial judge cannot be read as unfair. I may add that I think there is some merit to the Crown's argument that Thatcher would not have benefited from a more thorough review of the defence evidence.
89 I would dismiss the appeal.
The following are the reasons delivered by
90 Lamer J.‑‑I agree with the Chief Justice's reasons and disposition of this appeal. I should, however, qualify my concurrence in those of his reasons addressing the ground he refers to as "Jury Unanimity as to the Material Facts".
91 I agree with the Chief Justice that the jury unanimity point fails. I would suggest, however, that it fails because of the nature of the evidence in this case. It is true that the Crown presented two factually inconsistent theories: that the appellant actually killed the deceased or that he aided and abetted the killer. The overwhelming mass of the evidence against the appellant, however, was consistent with both theories and pointed only to his participation in the murder. The jury could not have been convinced beyond a reasonable doubt of one theory to the exclusion of the other, but must have been convinced beyond a reasonable doubt that the appellant participated in the murder, either as principal or aider and abettor. Since, as the Chief Justice points out, s. 21(1) of the Criminal Code makes the distinction between participation as a principal and participation as aider and abettor legally irrelevant, it was not necessary for the jury to decide on the form of his participation and the jury was correct in convicting. As Peter MacKinnon wrote in "Jury Unanimity: A Reply to Gelowitz and Stuart" (1986), 51 C.R. (3d) 134, at p. 137:
If, as their deliberations progress, the jurors, though not in agreement in their assessment of the probable type of involvement, are satisfied beyond a reasonable doubt that the only possible types of involvement establish guilt, they should convict.
92 However, I am not prepared to go so far as the Chief Justice's unqualified assertion that "s. 21 precludes a requirement of jury unanimity as to the particular nature of the accused's participation in the offence." Depending on the nature of the evidence presented by the Crown, the jury unanimity issue may arise in any case where the Crown alleges factually inconsistent theories, even if those theories relate to the particular nature of the accused's participation in the offence. If the Crown presents evidence which tends to inculpate the accused under one theory and exculpate him under the other, then the trial judge must instruct the jury that if they wish to rely on such evidence, then they must be unanimous as to the theory they adopt. Otherwise, the evidence will be taken into account by some jurors to convict the accused under one theory while the fact that the evidence exculpates the accused under the other theory is being disregarded by the other jurors who are taking the latter route. In effect, the jury would be adding against the accused the inculpatory elements of evidence which cannot stand together because they are inconsistent.
The following are the reasons delivered by
93 La Forest J.‑‑I am in general agreement with the reasons of the Chief Justice. I have some concerns, not addressed by him, however, that I would wish to underline.
94 The essential point in this case is that although alternative theories of culpability were advanced by the Crown, there were ample grounds for the jury to find Thatcher guilty beyond a reasonable doubt while remaining unsure whether he had committed the murder himself or through another person. There may, however, be cases where the interrelationship between competing Crown theories and the evidence adduced in relation thereto will not justify a verdict of guilt. In each case, therefore, it will be for the trial judge, having regard to the nature of the offence, the theories of the parties, and the totality of the evidence, to realistically assess the possibility that the evidence will be used improperly, and to direct the jury accordingly. Suffice it to say, however, the present is not such a case.
95 I would also add that, in my view, s. 21 of the Criminal Code is not unique in this regard. Rather, it is merely one example of a situation where the Crown is relying on alternative theories of culpability to found an accused's guilt. The fact that s. 21 makes the particular nature of the accused's involvement in an offence legally irrelevant does not, in my view, in and of itself justify conviction on the basis of mutually exclusive or alternative theories of culpability. Were it otherwise, concerns would be raised dangerously akin to those flowing from multiplicious counts. Concerns about multiplicity of counts and jury unanimity are functional, real concerns embodying society's pre‑eminent desire to avoid injustice to accused persons and, as such, cannot be explained away by the mere invocation of a legal fiction. I cannot believe that such a result would have been in the contemplation of Parliament in enacting s. 21. Nor do I read the Chief Justice's judgment as countenancing this result.
Appeal dismissed.
Solicitor for the appellant: Gerald N. Allbright, Saskatoon.
Solicitor for the respondent: The Attorney General for Saskatchewan, Regina.
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