Supreme Court of Canada
Boulianne v. The King, [1931] S.C.R. 621
Date: 1931-06-23
Maurice J. Boulianne Appellant;
and
His Majesty The King Respondent.
1931: June 23.
Present: Anglin С J.C. and Newcombe, Lamont, Smith and Cannon JJ.
ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Criminal law—Broker—Conversion—Theft—Witness—Accomplice—Charge —Misdirection—Proper course by trial judge as to warning.
Conviction of appellant for conversion affirmed, the court holding that the jury could not, on the evidence, have reached another conclusion. Though finding misdirection in a material matter, the majority of the court (Cannon J. contra) held that it did not result in a miscarriage of justice or wrong to the accused. (Cr. C., s. 1014 (2).)
Per Anglin C.J.C. and Newcombe, Lamont and Smith JJ.—The misdirection by the trial judge to the jury was that, although he warned the jury properly of the danger of convicting on the uncorroborated evidence of an accomplice, he further instructed them, in effect, that if they believed his evidence, although not corroborated, it was their duty to convict the accused. This was a departure by the trial judge from the direction given by this court in Vigeant v. The King ([1930] Can. S.C.R. 396, at 399, 400) as to the proper course to be taken in regard to warning of the danger of convicting without corroborative evidence. The law as very carefully considered and laid down in that case should be strictly followed by trial judges and any substantial departure from it must always be attended with peril. The rule requiring warning applies equally whether there be or be not in fact corroborative evidence of the testimony of an accomplice.
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APPEAL from a decision of the Court of King’s Bench, appeal side, province of Quebec, affirming the judgment of the Court of King’s Bench, criminal side, and sustaining the conviction of the appellant.
The appellant was charged with having received from his clients, in the course of his business as broker, various sums of money and other securities with instructions to apply the same, in whole or in part, to the purchase of securities upon stock exchanges and of fraudulently, in violation of good faith and contrary to such direction, applying these sums of money and securities to his own private use and the use of his firm. The main testimony against the accused was given by a witness who, it was admitted, had been an accomplice. The principal ground of appeal was that the trial judge failed to properly instruct the jury as to the danger of accepting, without corroboration, the testimony of an accomplice.
L. Gendron K.C. for the appellant.
E. Bertrand K.C. for the respondent.
At the conclusion of the argument, the judgment of the majority of the court was orally delivered by
Anglin C.J.C—We do not think it necessary to reserve judgment in this case. We have had abundant opportunity to look into it both during the exhaustive argument here and before. While the majority of us arе of the opinion that there was misdirection in a material matter, in that the learned judge, although he warned the jury properly of the danger of convicting on the uncorroborated evidence of an accomplice, further instructed them, in effect, that if they believed his evidence, although not corroborated, it was their duty to convict (and we wish to compliment counsel for the accused on the ability he has shewn in the presentation of the case in this regard), we are also satisfied that the jury, properly directed, must have reached the same conclusion as that actually reached in this case (Brooks v. The King).
Moreover we are all satisfied that the jury could not, on the evidence in the case, have failed to convict the accused. The case, therefore, is one for the application of
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section 1014 (2) of the Criminal Code, and the Court, being convinced that the misdirection did not result im any miscarriage of justice or wrong to the accused, is unanimously of the view that the appeal fails and that the conviction must be affirmed. The appeal is, therefore, dismissed.
We should add that we entirely disagree with the view of Mr. Justice Hall that the rule requiring warning does not apply where there is, in fact, corroboration. The rule applies equally whether there be or be not corroborative evidence of the testimony of an accomplice.
The departure by the learned trial judge in the present case from the plain direction given by this court in Vigeant v. The King, as to the proper course to be taken in regard to warning of the danger of convicting without corroborative evidence very nearly wrecked this conviction. The law as very carefully considered and laid down in that case should be strictly followed by trial judges. Any substantial departure from it must always be attended with peril.
Cannon J.—With respect, I cannot agree that the learned trial judge, after warning the jury properly of the danger of convicting on the uncorroborated evidence of an accomplice, further instructed them, in effect, that if they believed that evidence, although not corroborated, it was their duty to convict, I cannot read such instructions in the following words of the learned judge:
Maintenant la complicité se présente dans cette affaire. La défense a prévenu le tribunal de donner la direction aux jurés que si les jurés en arrivent à la conclusion qu’il y a des témoins complices en cette cause—évidemment il ne peut s’agir que de Statz—il est toujours dangereux de condamner un individu sur le témoignage de son complice, surtout si ce témoignage n’est pas corroboré. Mais il est de mon devoir de vous dire que, même s’il n’est pas corroboré, vous devez tout de même prendre en considération le témoignage du complice, le peser et en tirer les conclusions que vous croyez devoir tirer. Le témoignage du complice est reçu, mais il a plus ou moins de force selon qu’il est plus ou moins corroboré.
I reach the conclusion that the two points raised by the dissenting judgment of Mr. Justice Allard were badly taken, and I would dismiss the appeal.
Appeal dismissed.
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