Hill v. The King, [1928] SCR 156

Supreme Court of Canada

Hill v. The King, [1928] S.C.R. 156

Date: 1928-02-14

Francis Hill (Plaintiff) Appellant;

and

His Majesty The King (Defendant) Respondent.

1928: February 11, 14.

Present: Mignault J. in chambers.

ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.

Criminal law—Appeal—Motion for leave to appeal from judgment of Second Divisional Court of Appellate Division, Ont.—Alleged conflict with judgment of an “other court of appeal” in “a like case” (Cr. Code, R.S.C. 1927, c. 36, s. 1025)—First Divisional Court of same Appellate Division an “other court of appeal”—Alleged error in trial judge’s charge to jury.

The First Divisional Court of the Appellate Division of the Supreme Court of Ontario is, in relation to the Second Divisional Court, an “other court of appeal” within the meaning of s. 1025 of the Cr. Code, R.S.C. 1927, c. 36.

The judgment of the Second Divisional Court (33 O.W.N. 301) dismissing an appeal from a conviction on a charge of rape, which conviction was attacked on the ground of error in the charge to the jury, was held not to be in conflict with the judgment of the First Divisional Court in R. v. Hall (31 O.W.N. 451) or with the judgment of this Court in Brooks v. The King ([1927] S.C.R. 633), neither of them being “a like case” (Cr. Code, s. 1025) to that in question; and a motion for leave to appeal to this Court was refused.

MOTION for leave to appeal to this Court from the judgment of the Second Divisional Court of the Appellate Division of the Supreme Court of Ontario[1] dismissing the accused’s appeal from his conviction on a charge of rape. The motion was made on the ground that the judgment sought to be appealed from conflicts with the judgment of the First Divisional Court of the said Appellate Division in Rex v. Hall[2] and with the judgment of the Supreme Court of Canada in Brooks v. The King[3]. The material facts of the case are sufficiently stated in the judgment now reported. The motion was dismissed.

L.P. Sherwood for the motion.

A.W. Rogers contra.

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MIGNAULT J.—Francis Hill, who was convicted on an indictment for rape on the person of a Mrs. Hazel Blow, has applied to me for leave to appeal from the unanimous judgment of the Second Appellate Divisional Court of Ontario which confirmed the conviction. Hill was a taxi driver of Fort Frances, Ont., and the crime was committed about one o’clock of the morning of the 16th of September, 1927. The complainant had come to Fort Frances on the 15th to get some provisions, and could only return home the following day. She registered at the Fort Frances Hotel, and employed Hill, whom she had never seen before, to drive her to a dance at Pithers’ Point, a pleasure resort some three miles from Fort Frances. She returned from the dance in Hill’s taxi, a closed sedan car, and her story is that when she reached Fort Frances, Hill insisted on her going for a drive with him. It was on this drive, on a cross road, that the crime was committed, Hill, according to the complainant’s testimony, having forced her to leave the front seat which she occupied with him and to go on to the rear seat where she was assaulted by him.

The trial took place at Fort Frances before Mr. Justice Logie, and the only point in dispute—Hill having admitted that he had connection with the complainant on the occasion mentioned by her—was whether the connection was with or without her consent. On this point, the Crown undertook to show that the prosecutrix complained of the assault at the first reasonable opportunity. Hill brought her back to the hotel after the assault. She saw the night clerk there, but said nothing to him of the matter. The next morning she went to see Dr. Hartrey of Fort Frances to get a prescription for a friend. Dr. Hartrey had already treated her, and she says she wanted to speak to him about the assault, but did not have the courage to do so. She took the two o’clock train home, to Bear Pass, where her husband was station agent, and on her arrival told him the whole story. The following day Mrs. Blow returned to Fort Frances, and laid before the Crown Attorney a complaint against Hill. It was said that the complainant did not make any outcry, but, as far as she knew, there was no house in the vicinity, and it was about one o’clock in the morning.

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On the question of complaint by the prosecutrix, the learned trial judge gave the following instructions to the jury:

In this class of case certain statements made after the event are admissible. Statements made after the transaction are generally irrelevant and inadmissible in favour of the person making them, but in cases of rape and similar offences the fact that a complaint was made by the prosecutrix shortly after the alleged occurrence, and the particulars of such complaint may, so far as they relate to the charge be given in evidence by the prosecution not as evidence of acts complained of but as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box and to negative consent.

Now, that class of evidence is admissible, of course, where consent is or is not material evidence in the charge, but the complaint must be shown to be made at the first opportunity which reasonably presents itself after the commission of the offence.

I admitted the statement to her husband because I felt on the evidence it was the first reasonable opportunity she had to make the complaint. She did not make complaint to the hotel clerk. She thought of making it to her doctor, but she said she could not bring herself to do it, and then she went home and within 12 hours, or whatever time it was, told her husband. If I am wrong in admitting that and I do not think I am wrong, the prisoner will get the benefit if he appeals. But I have admitted the statement and have told you the effect of the complaint and you are not to consider it as anything other than what I have told you.

Counsel for Hill contended that by the final words of the passage just quoted the learned trial judge had in effect instructed the jury that they must consider that the complaint had been made by the complainant on the earliest reasonable opportunity. In my view, the final words, fairly construed with the context, refer to what the learned judge had already told the jury, that “particulars of such complaint may, so far as they relate to the charge, be given by the prosecution, not as evidence of acts complained of, but as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box and to negative consent.” There was no objection to the charge, and if the passage quoted could be misconstrued, the prisoner’s counsel did not call the learned judge’s attention to it.

I have referred to these circumstances somewhat in detail in order to determine whether, as contended by counsel for the prisoner, and that is the only question with which I am concerned, the unanimous judgment of the appellate court herein is in conflict with the decision of

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another court of appeal in a like case (s. 1025 Criminal Code, R.S.C., 1927, c. 36).

The decision to which counsel for the prisoner referred me is Rex v. Hall, of which there is a short report in 31 Ontario Weekly Notes, p. 451, but counsel furnished me with a complete copy of the judgment which I have very carefully considered. This is a decision of the First Appellate Divisional Court of Ontario, rendered on the 17th of February, 1927, whereby a conviction for rape before the same trial judge was set aside and a new trial ordered because the trial judge had misdirected the jury and had failed to place the defence fully and fairly before them.

Mr. Rogers contended that this decision cannot be said to be a decision of “another court of appeal,” as required by s. 1025, inasmuch as both divisions of the Appellate Divisional Court of Ontario are one court of appeal, so that the decision now in question is a judgment of the same court of appeal as that which decided the other case. He relied on the definition of the words “court of appeal” in s. 2, subs. 7, of the Criminal Code, and also on the Ontario Judicature Act, R.S.O., 1927, c. 88, ss. 4 and 11.

I am unable to accept this contention. Section 2, subsection 7, of the Criminal Code states that “court of appeal” includes, in the province of Ontario “the Appellate Division of the Supreme Court of Ontario.” This Appellate Division is composed of two Divisional Courts, numbered consecutively and designated the First Divisional Court and the Second Divisional Court (Ontario Judicature Act, ss. 39 and 40). The Chief Justice of Ontario and four Justices of Appeal form the First Divisional Court, and the Second is composed of a Chief Justice and four Justices of Appeal. I cannot doubt that they are distinct appellate courts, and one of them in contradistinction to the other would be not misdescribed by calling it “another court of appeal” within the meaning of s. 1025 of the Criminal Code. A conflict on a question of law between these two courts is not readily conceivable, but if it did arise, it obviously would create such a situation as Parliament must have contemplated when it enacted s. 1025. The ratio legis here strongly applies and there is certainly

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nothing in the language of the section which prevents its being carried out.

This brings me back to Rex v. Hall[4], and the only matter to be considered is whether it conflicts with the unanimous judgment of the Second Appellate Division in the present case. Of course, it must be “a like case,” and I take it that the conflict mentioned by s. 1025 is a conflict on a question of law. I do not think there was any such conflict or difference of opinion between the First Appellate Division in the Hall Case⁴ and the Second Appellate Division in this case as to the duty of a trial judge in instructing the jury. Everything turned on the circumstances of the particular case and, in my opinion, the facts in the Hall Case⁴, were materially different from those in the present one. The appellate court there was of opinion that the trial judge had practically told the jury to disregard evidence showing that the complainant “was not in the state of mind of one who has been outraged and desired to make an outcry about it.” Moreover, in the Hall Case[5], there was evidence of admissions by the complainant that previously she had had connection with the prisoner, and she did not deny in rebuttal the statement of the prisoner that he had had sexual intercourse with her about twenty-five times. The appellate court further found that the trial judge had not placed the defence fully and fairly before the jury. In my opinion, the present case stands on an altogether different footing.

I may perhaps further add that Rex v. Hall⁵ could not be considered as an authority in a case where the facts were not the same. In other words, it is not “a like case.” To borrow the well known language of Lord Haldane in Kreglinger v. New Patagonia Meat and Cold Storage Co. Ltd.[6],

when a previous case has not laid down any new principle but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblance in circumstances, and to erect a previous decision into a governing precedent merely on this account.

Counsel for the prisoner also sought to show a conflict between this case and the recent judgment of this court in

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Brooks v. The King. To the latter case, what I have said of Rex v. Hall may well apply, for an established rule of law was applied to a particular set of facts. In Brooks v. The King, this court in substance found that the trial judge had not, under the circumstances, fairly charged the jury. I am unable to find any conflict between it and this case.

Upon the whole, I do not think that the decision from which the prisoner seeks leave to appeal is in conflict with the judgment of any other court of appeal in a like case. The application for leave to appeal is therefore dismissed.

Motion dismissed.

Solicitor for accused: H.A. Tibbets.