Supreme Court of Canada
R. v. Fitton, [1956] S.C.R. 958
Date: 1956-10-24
Her Majesty The
Queen (Plaintiff) Appellant;
and
Robert Fitton (Defendants)
Respondent.
1956: October 3, 4, 24.
Present: Kerwin C.J. and Taschereau, Rand,
Kellock, Locke, Cartwright, Fauteux, Abbott and Nolan JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Criminal law—Appeals to Supreme Court of
Canada—Questions of law alone—Admissibility of confession—Court of Appeal
holding confession inadmissible on mistaken ground of law—The Criminal Code,
1953-54 (Can.), c. 51, s. 598(1)(a).
Where a Court of Appeal orders a new trial on
the ground that a statement by the accused was wrongly admitted at the trial,
and there is dissent on this point, there is a right of appeal by the Crown if
the difference of opinion between the majority and the minority was based, not
on any question in respect of the evidence or the inferences to be drawn from
it, but on differing views of the law applicable to the situation, and
different interpretations of decided cases; the question of the admissibility
of the statement is in such circumstances one of law alone.
Kerwin C.J. and Cartwright J. (dissenting)
were of opinion that there was no dissent in the Court of Appeal on any
question of law.
Evidence—Confessions—Admissibility—Test of
voluntary nature of statement—Effect of decisions—Questioning by police
officers—Suggested “cross-examination”—Intimation that previous statement not
believed.
The decision in Boudreau v. The King, [1949]
S.C.R. 262, did not extend in any way the rule laid down in Ibrahim v. The
King, [1914] A.C. 599 at 609, as to the admissibility of confessions in
evidence at the trial. It is still the law that a statement is admissible in
evidence if it is shown to have been voluntary “in the sense that it has not
been obtained…either by fear of prejudice or hope of advantage exercised or
held out by a person in authority”, and the Crown need go no further than this,
even in a case where questions have been asked by the police of a person in custody.
In particular, the Crown is not required to show that the statement was not
otherwise influenced by the course of conduct adopted by the police, or that it
was “self-impelled” in any sense other than that it was not induced by fear or
hope.
The accused, having been taken to the police
station early in the morning, and there given an account of his movements on
the previous evening, was left there all day, not formally under arrest. About
5 p.m. the police officers returned and told the accused that they had been
working all day on the case (one of murder) and that they had discovered
further facts indicating that what he had told them in the morning was untrue.
The accused thereupon “blurted out” a damaging statement, whereupon he was
stopped and given a formal warning in respect of a charge of murder, after
which he made a statement, obtained in the form of question and answer, that
was reduced to writing and signed by him.
[Page 959]
Held: There
was nothing in the circumstances to make either the oral statement or the
written one that followed it inadmissible in evidence, and the trial judge had
rightly admitted them both.
Criminal law—Trial judge’s charge to jury—Whether
defence adequately put to jury—Murder.
The accused was charged with the murder of a
young girl by choking her, the theory of the Crown being that the killing took
place during the commission of a rape. The principal ground of defence, based
on a statement made by the accused to the police, was that sexual intercourse
had taken place with the full consent of the girl, and that the act that
resulted in her death had taken place some time later, and was in no way
connected with the act of intercourse.
Held: This
defence had been adequately put to the jury by the trial judge, and there was no
ground for interfering with the conviction.
APPEAL by the Attorney-General for Ontario from the judgment of the Court of
Appeal for Ontario ordering a new
trial on an indictment for murder. Appeal allowed and conviction restored.
W.B. Common, Q.C., and W.C. Bowman, Q.C.,
for the appellant.
D.G. Humphrey, and J.G.J. O’Driscoll, for
the accused, respondent.
THE CHIEF JUSTICE (dissenting):—The
respondent’s conviction of murder was set aside by the Court of Appeal for
Ontario1 and the Attorney-General for that Province now appeals
based on the dissent of Roach J.A. on two points, as to one of which Aylesworth
J.A. agreed with him. The majority ordered a new trial on both grounds. As to
the question of the admissibility of the oral and written statements of the
accused, my view is that the dissent was on a question of fact and therefore we
are without jurisdiction. According to my interpretation of the reasons in the
Court of Appeal there is no difference as to the law, but merely as to its
application to the circumstances. The evidence on the voir dire was
uncontradicted and, in my opinion, the reasons of the majority and minority in
the Court of Appeal are based on conflicting views as to the proper inferences
to be drawn from that evidence. Such inferences are questions of fact.
However, the majority of the members of this
Court read the reasons delivered in the Court of Appeal differently and are of
opinion that this Court has jurisdiction. Since
[Page 960]
that is to be the judgment of the Court, I
conceive that I should do what I would not otherwise do—express my opinion upon
both points. I am unable to discern any error in the trial judge’s charge and
particularly that he had not presented all aspects of the accused’s defence to
the jury. As to the other point, in view of the decision of this Court in Boudreau
v. The King I deem
it unnecessary to restate the law as there enunciated, and applying that rule I
agree with Roach J.A. that the trial judge correctly interpreted and applied
it.
As the majority of the Court are of opinion that
there is jurisdiction, the appeal is accordingly allowed and the conviction
restored.
TASCHEREAU J.:—The respondent was convicted by
the Honourable Mr. Justice Treleaven and a jury at the Toronto assizes on April 27, 1956, on the following indictment:—
The jurors for our Lady the Queen present
that Robert George Fitton on or about the 18th day of January in the year 1956,
at the city of Toronto in the county of York, murdered one Linda Lampkin,
contrary to the Criminal Code.
The respondent was found guilty and sentenced to
be executed, but the Court of Appeal, Mr. Justice Roach dissenting,
allowed the appeal and directed a new trial.
The majority of the Court reached the conclusion that there had been
misdirection of the jury by the learned trial judge in matters of law under ss.
201 and 202 of the Criminal Code, and that the theory of the defence was
not adequately explained to the jury.
The Chief Justice of Ontario, Laidlaw J.A. and
Schroeder J.A. held that the oral admission and the signed statement of the
respondent were improperly admitted at the trial, and allowed the appeal and
also directed a new trial on this ground. Mr. Justice Aylesworth
(dissenting on this ground) as well as Mr. Justice Roach, held that the
learned trial judge did not err in law in holding that the oral admission and
the signed statement of the accused were admissible in evidence at the trial,
and would have dismissed the appeal on this point.
[Page 961]
Her Majesty the Queen now appeals to this Court pursuant
to the provisions of s. 598 (1) (a) of the Criminal Code, which
reads as follows:—
598. (1) Where a judgment of a court of
appeal sets aside a conviction, pursuant to an appeal taken under paragraph (a)
of section 583 or dismisses an appeal taken pursuant to paragraph (a)
of section 584, the Attorney General may appeal to the Supreme Court of
Canada
(a) on any question of law on which
a judge of the court of appeal dissents.
The evidence might be summarized as follows:—
At approximately 9 p.m. on January 18, 1956, the
respondent, who is an employee of a cartage agency under contract with the Post
Office Department, took the deceased Linda Lampkin for a ride in his mail
truck, and two hours later left her dead body on Commissioners Street in south central
Toronto. When the body was discovered, the underclothing was ripped and torn,
and it is in evidence that this young girl of 13 years old, had been the
subject of sexual intercourse. Around her neck was a deep groove in the flesh
tissue, which corresponded in size to the width of a scarf which she was
wearing. The evidence reveals that she died of asphyxia due to strangulation.
After having discovered the body, the Toronto police force, as a result of their
investigation, took the respondent Fitton into custody the next morning. During
the day, Fitton made oral admissions and signed a statement, and it is the
admission of this statement, which has been allowed by the trial judge, which
is the first point in issue in the present appeal.
I must admit that I am at a loss to understand
the contradictory position taken by the respondent on this matter. This written
statement was admitted without objection, and constitutes the only defence
raised by the respondent. It is now said that it has been illegally admitted as
not having been made freely and voluntarily. With this last contention I cannot
agree, and I fully share the views of my brother Fauteux who holds that it was
admissible and that this case must be governed by the rules laid down by this
Court in Boudreau v. The King.
[Page 962]
I am also of the opinion, for the reasons given
by my brother Fauteux, that the rejection or admissibility of this statement is
not merely a question of fact, but raises a question of law, conferring
jurisdiction on this Court, in view of the dissenting opinions in the Court
below.
I further endorse what has been said by
Mr. Justice Roach in his dissenting judgment as to the exposition of the
theory of the defence by the trial judge, and as to the use that could be made
of the expert evidence of Dr. McLean and as to the obligation of the jury to
reject any of his opinions which he was not qualified as an expert to give.
I would allow the appeal and restore the
conviction.
The judgment of Rand and Kellock JJ. was
delivered by
RAND J.:—The rule on the admission of
confessions, which, following the English authorities, was restated in Boudreau
v. The King, at
times presents difficulty of application because its terms tend to conceal
underlying considerations material to a determination. The cases of torture,
actual or threatened, or of unabashed promises are clear; perplexity arises
when much more subtle elements must be evaluated. The strength of mind and will
of the accused, the influence of custody or its surroundings, the effect of
questions or of conversation, all call for delicacy in appreciation of the part
they have played behind the admission, and to enable a Court to decide whether
what was said was freely and voluntarily said, that is, was free from the
influence of hope or fear aroused by them.
The inference one way or the other, taking all
the circumstances into account, is one for drawing which the trial judge is in
a position of special advantage; and unless it is made evident or probable that
he has not weighed the circumstances in the light of the rule or has
misconceived them or the rule, his conclusion should not be disturbed.
The Chief Justice of Ontario, speaking for the
majority of the Court of Appeal, has treated the expression “freely and
voluntarily”, used in Boudreau v. The King, as if it connoted only a
spontaneous statement, one unrelated to anything as cause or occasion in the
conduct of the police officers; but with the greatest respect that is an
erroneous
[Page 963]
interpretation of what was there said. The
language quoted must be read primarily in the light of the matters that were
being considered. As the opening words show, there was no intention of
departing from the rule as laid down in the authorities mentioned; the phrase
“free in volition from the compulsions or inducements of authority” means free from the compulsion of
apprehension of prejudice and the inducement of hope for advantage, if an
admission is or is not made. That fear or hope could be instigated, induced or
coerced, all these terms referring to the element in the mind of the confesser
which actuated or drew out the admission. It might be called the induced motive
of the statement, i.e., to avoid prejudice or reap benefit. As Professor
Wigmore intimates, the terms promise or threat may be reduced to the word
“inducement”, but that again may raise a question of meaning; and the
justification of the illustrative use of other words is that together they
indicate the general conception of influence of a certain kind producing the
admission. Even the word “voluntary” is open to question; in what case can it
be said that the statement is not voluntary in the sense that it is the
expression of a choice, that it is willed to be made? But it is the character
of the influence of idea or feeling behind that act of willing and its source
which the rule seizes upon. Nothing said in Boudreau v. The King was
intended to introduce a new quality of that influence.
But it was with an enlarged view of what that
case decided that the Chief Justice held the questions, express or implied, of
the police officers, taken to be of the nature of cross‑examination, that
is, as I understand it, that they suggested several items of his earlier
statement to be false, and put without a warning, ipso facto, as having
“instigated” it, ruled out the statement. In this I think he has, and in a
matter of law, erred. The accused was not at the time under formal arrest
although he had been requested to stay in the police station and, for the
greater part of the time, remained in the general office, and the earlier
questions were such as the police might have addressed to any person in the
remotest way drawn into the enquiry. Ques-
[Page 964]
tions without intimidating or suggestive
overtones are inescapable from police enquiry; and put as they were here, they
cannot by themselves be taken to invalidate the response given. The question
still remains: was the statement made through fear or hope induced by
authority?
The rules adopted in England relating to this
matter express, no doubt, the wisdom of long experience; but they in fact
contemplate questioning after the arrest has been decided on and a warning
given; and there is discretion in the trial judge to admit a statement
notwithstanding their non-observance. In this country they have no other force
than what their innate good sense may suggest in individual determinations, as
considerations to be kept in mind in weighing the total circumstances.
On the voir dire no attempt was made by
counsel to show by cross-examination either coercion or inducement, and it was
frankly conceded that the admission of the evidence, if not facilitated, was
not seriously challenged for the reason that the statement contained the only
evidence upon which the defence intended to rely. Not only, then, was the
testimony of the officers accepted by the trial judge and unopposed on behalf
of the accused, but its admission was looked on as for the benefit of the
defence. In that situation I should say that there is nothing to warrant a
finding that the statement was not shown to have been voluntary; and the ruling
in appeal, on this view, also, is on a question of law.
I am, therefore, in agreement with Roach J.A.
and Aylesworth J.A. that the admission of the statement by the trial judge
should not have been disturbed.
The second ground of dissent was from the
holding of the Court that the charge was inadequate in presenting the case for
the defence. That defence was extremely simple and it was contained in two or
three sentences of the statement. It was to the effect that after the sexual
intercourse had taken place and after the accused had proceeded on his route to
another mail-box,
she started kibitzing around again and I
just went out of my head. I grabbed her by the scarf and she just went limp.
She didn’t breathe no more, then I continued with the rest of my mail run.
[Page 965]
The act causing death was thus represented to
have been completely divorced from the sexual act. The trial judge, after
making it clear that the jury could believe any part of the evidence and
disbelieve any other part, applied this rule to the statement. He contrasted
this direct evidence with the circumstantial facts which could be held to show
that death from strangulation had been immediately connected with the act of
intercourse; and his final reference to the statement was in these words:
Now gentlemen, as I see it, if I may put
this very briefly to you, I would think that you would take that statement of
the accused, consider it very carefully, and if you conclude that it is the
truth or if you really have an honest doubt as to whether it is the truth or
not, he is entitled to the benefit of that doubt and you would not find him
guilty of murder but guilty of manslaughter.
Counsel urged before us that this paragraph in
some way deals with strangulation accompanying ravishment but I cannot so
construe it. It is, strictly, more favourable to the accused than was
justified: in effect it says, if you think the circumstances of tightening the
scarf were as he puts them, you are to find manslaughter. This rules out intent
in the act within s. 201(a) (ii) or (c) of the Criminal Code.
I think we must credit the jury with ordinary
intelligence. The defence had been elaborated to them by counsel, it was set
forth on the statement which they had in the jury-room and they were told how
to deal with it. There was no complication in the facts or their interpretation
or in the distinction between the two views of the facts put to them, and I
have not the slightest doubt that they came to their verdict with an
intelligent appreciation of both.
I would, therefore, allow the appeal and restore
the conviction.
The judgment of Locke and Nolan JJ. was
delivered by
NOLAN J.:—The respondent was convicted of murder
at a trial before a judge sitting with a jury. On appeal to the Court of Appeal
for Ontario the appeal, by a majority judgment, was allowed, the conviction
quashed and a new trial ordered. This
is an appeal by the Attorney‑General for Ontario pursuant to the
provisions of s. 598 (1) (a) of the Criminal Code.
[Page 966]
At about 7.45 p.m. on January 18, 1956, the
deceased, Linda Lampkin, left a dancing-school at 40 Wellesley Street East in
the city of Toronto and at approximately 8.30 p.m. she boarded a Jane Street
bus at Jane and Bloor Streets and shortly afterwards left it at Jane and
Annette Streets. At approximately 8.45 p.m. a young girl was seen talking to
the driver of a Royal Mail truck at Jane Street and St. John’s Road.
The respondent was employed by the Bacon Cartage
Company Limited as a Royal Mail truck-driver and his route on the day in
question covered the area in which the deceased was last seen alive. The
respondent turned in his truck at the Bacon Cartage garage at 104 Berkeley
Street at 10.57 p.m., although his usual time was between 9.30 and 10 p.m.
At approximately 11.05 p.m. on January 18, 1956,
the body of the deceased was found on Commissioners Street in the city of
Toronto. Her wool skirt and underslip were pulled up around her waist. The
three pairs of underpants she was wearing were torn, exposing her thighs and
genitalia, and her brassiere was torn, exposing her breasts. One shoe was
missing. A red truck, similar to the one driven by the respondent, was seen,
during the evening of January 18, parked on Commissioners Street in the
vicinity of the place where the body was found.
A post-mortem examination disclosed that
the deceased had been a virgin and that death had been caused by asphyxia due
to strangulation resulting from the application of extreme force to a silk scarf
which was knotted around her neck. There was a mark almost encircling the neck
which showed a complete ring of bruising, with the exception of a gap under the
right ear where the bruising was reduced. It was the opinion of the pathologist
that such force would have to be applied for several minutes to cause death.
The deceased had been the subject of a completed act of sexual intercourse.
There was a tear in her hymen and in her vagina which, in the opinion of the
pathologist, would have caused great pain. Her face was dark with acute
congestion of blood and there were tiny
[Page 967]
haemorrhages in the skin of the face, the
forehead, the ears and the mucous membrane of the eyes. Bloodstained froth had
issued from the nose and mouth.
On the morning of January 19, 1956, two officers
of the Toronto police force went to the Globe and Mail garage, at which time
the respondent was putting mail-bags into a truck. The truck was searched and a
paper bag containing two apples, a bobby pin and a tube of lipstick were found
inside. This lipstick was, in evidence, identified and admitted by counsel for
the respondent to have been the property of the deceased. The respondent was
observed to be collapsing or fainting.
The respondent was taken by Detective Sergeant
O’Driscoll and Detective Coghill to police headquarters, where he was
interrogated by Detective-Sergeant O’Driscoll, and a T-shirt, a pair of
trousers and a windbreaker were taken from the person of the respondent. An
examination of the clothing disclosed that there was human blood on the
trousers and the leather jacket. The detective‑sergeant told the
respondent that he was “investigating the rape and murder of a girl by the name
of Linda Lampkin” and that she lived on Brookside Avenue. This was the first
time her name had been mentioned. The respondent said that he knew the deceased
and that the last time he saw her was about 5.15 in the afternoon of January
17. He denied that he had seen her on January 18. He gave an account of his
movements on January 18 until he stopped work at night. The discussion, which
contained no reference to Linda Lampkin, lasted until approximately 9 a.m. and
no caution was given. The discussion was not taken down in writing. O’Driscoll
and Coghill left to be present in court at 10 a.m. and the respondent was left
in the custody of Detective Smith, who told the respondent that he wanted to
get on paper a record of his movements on January 18. Detective Smith had typed
about one paragraph when he was relieved by Detective Sergeant Simmonds, who
typed the statement as it was related to him by the respondent. When it was
finished the respondent read it, made certain changes and signed it. No
objection as to its admissibility was made at trial and it was admitted in
evidence.
[Page 968]
In his statement the respondent said that about
the end of June he had met the deceased when he was collecting mail on his
route and about a week later had taken her, at her request, for a drive around
part of his route; that he had seen her three times since then, but only to say
“hello”. The statement relates his movements during January 18 and concludes by
stating that he did not know anything about a lipstick or how it got in the
truck.
Detective Sergeant Simmonds then asked the
respondent for a list of the box clearances on his route, which was given and
typed on a sheet of paper, which was admitted at trial. He had a sandwich and
milk brought in for the respondent for lunch.
At approximately 5 p.m. Detective Sergeant
Simmonds and Detective McNeely again interviewed the respondent, who had been
kept in the main detective office since the morning interview. What took place
at this afternoon interview is described in the evidence of Detective Sergeant
Simmonds:—
We took our coats and hats off and hung
them up and Detective McNeely and I went up to the accused and I told him, I
said, “I want to have another word with you. Would you come over to the office
with us?” He stood up and followed us out. We went over to the small room off
the main detective office and into the office there.
I told the accused to sit down and he sat
down at a desk, at a chair opposite a desk, and I said to him, I said, “You
know who I am. I was talking to you this morning” or words to that effect. I
said, “This is Detective McNeely, my partner.” I then sat down at the desk
opposite him and Detective McNeely sat to my right.
I said to the accused man, “Bob, you have
been sitting in the office here this afternoon and I haven’t seen you since I
left you around noon when you told me where you were last night and your
movements last night.” I said, “You have had all afternoon to think over where
you were last night.”
He said, “What I told you this morning was
true.” I said, “Well, it no doubt was true as far as your work with the post
office was concerned but,” I said, “we have been out going over the area in the
west end of the city where you worked and we have been working pretty hard this
afternoon,” and I said, “I have received information to the effect that you
were seen last night with Linda Lampkin at St. John’s Road and Jane about
8.45 p.m.”
He was sitting in the chair, which has arms
on it, and he had his elbows on the arms and his hands crossed in front of him
and he was looking at me and at this moment he looked down to the floor, he put
his head down. I was just about to say something else to him when McNeely spoke
up, and McNeely said to him, “Yes, Bob, we have been working since 5 o’clock
this morning. It may be necessary for us to take you out
[Page 969]
with us in the police car and have you show
us just how you do your work in the west end in the area that you work in.
There may be other witnesses out there—we don’t know—who may have seen things.
We don’t know. But the lipstick that was found in your truck this morning has
been identified.” He then said, “And along with this information that we
obtained this afternoon, it indicates that you may have been seen with Linda
Lampkin last night. We don’t believe what you have been telling us.”
At this point the accused who was still looking
at the floor paused and—or he just seemed to just sit there, he didn’t say
anything, and at this point he said, “I was just thinking of my wife and my
kids. I didn’t mean to do it. She started kibitzing around and I grabbed her by
the scarf and she didn’t breathe no more.”
At this moment I said, “Just a minute,
Bob,” and I pulled the drawer open in the desk and there was a pad of what we
call caution sheets in the drawer and I put them on the table. I wrote some
detail on the top of this caution sheet which has a printed form at the top,
including the fact that I was at headquarters and the date and my name, the
name of the accused and his age, and the charge. And I read from the sheet to
the accused man.
The learned trial judge ruled that the inculpatory
oral statement made in the course of this interview,
I was just thinking of my wife and kids. I
didn’t mean to do it. She started kibitzing around and I grabbed her by the
scarf and she didn’t breathe no more.
was voluntary and admissible in evidence.
As soon as the respondent had made this
statement he was immediately stopped, charged with the murder of the deceased
and cautioned.
The written statement was obtained by question
and answer and was written down in longhand by Simmonds. When it was completed
the respondent was asked to read it aloud, including the caution, which he did,
and then he signed it.
In the written statement the respondent said
that he had seen the deceased on the evening of January 18; that she had come
over to his truck and asked if she could go for a ride, he had said she could
and she had gotten into the truck.
The statement further says:
I parked up on Gooch Ave. to empty my small
mail bag and tie up my big one and she started necking and then I had
intercourse with her and then I went on a ways and did my other box and she
started kibitzing around again and I just went out of my head, I grabbed her by
the scarf and she just went limp. She didn’t breathe no more, then I continued
with the rest of my mail run and dropped my mail off and drove down to
[Page 970]
Cherry St. and took in my CODs I had
left. She still wasn’t breathing so the best thing I thought was to get rid of
her. I drove to Commissioner St., I don’t know Commissioner St. very well,
I took her out of the truck and put her on the ground there. Then I took the
truck back to Berkeley St. and went home.
At about 8.10 p.m. Detectives Simmonds, McNeely
and Sellar drove the respondent out to the west end of the city to try to find
the missing shoe. It was found underneath a truck on a vacant lot in the
downtown area on Berkeley Street. A broken compact was found in the shoe. The
girl’s wallet was found by the police stuck in a sewer-grating on a street in
the vicinity of a garage where the mail trucks were stored.
The learned trial judge held that the
last-mentioned written statement was voluntary and it was admitted in evidence.
The majority judgment of the Court of Appeal for
Ontario (Pickup C.J.O. and Laidlaw and Schroeder JJ.A.), reversing the learned
trial judge, held that:
…the Crown has failed to show that the oral
statement made by the appellant, or the written statement made by him
immediately afterwards, was free and voluntary. Therefore the learned judge, in
my opinion, should not have admitted either of those statements in evidence.
The erroneous admission in evidence of these incriminating statements is in
itself sufficient to warrant this Court directing a new trial.
It is contended by counsel for the respondent
that this Court has no jurisdiction to entertain the appeal on the question of
the admissibility of the second statement, as it is not a strict question of
law, but rather a question of fact, or at least a question of mixed law and
fact. Section 598 (1) of the Criminal Code, under which the appeal
on this ground is taken, reads as follows:
598. (1) Where a judgment of a court of
appeal sets aside a conviction pursuant to an appeal taken under paragraph (a)
of section 583 or dismisses an appeal taken pursuant to paragraph (a)
of section 584, the Attorney General may appeal to the Supreme Court of
Canada
(a) on any question of law on which
a judge of the court of appeal dissents, or
(b) on any question of law, if leave
to appeal is granted by a judge of the Supreme Court of Canada within
twenty-one days after the judgment appealed from is pronounced or within such
extended time as the judge may, for special reasons, allow.
[Page 971]
If the decision as to the admissibility of the
oral and second written statements turned upon the inferences to be drawn from
the evidence, it would seem clear, from the decisions of this Court, that that
was not a question of law alone and consequently this Court would be without
jurisdiction.
In a case in which a statement is received in
evidence over the objection of counsel for the accused and the point is raised
that the statement is not free and voluntary, having been obtained by fear of
prejudice or hope of advantage held out by a person in authority, the Court
must weigh the evidence and determine the credibility of the witnesses. The
correctness of such a decision could not, I think, be raised before this Court
on an appeal on a question of law alone.
In the present case entirely different
considerations arise. The statements were admitted in evidence without
objection. Indeed, it may be said that the second statement contained the
defence of the respondent to the charge. No conflict arose as to the manner in
which the statements were obtained, no suggestion was made that they had been
improperly instigated or induced, and that they were free and voluntary appears
to have been unchallenged.
In other words, the voluntary nature of the
statements was not in dispute at trial. There was no evidence of any previous
threat or promise and nothing in law to warrant their exclusion. To hold them
to be inadmissible would, in my view, be contrary to established legal
principles and would raise a question of law alone.
Assuming that this Court has jurisdiction to
hear the appeal as to the admissibility of the oral and second written statements
of the accused, it remains to be determined, as a question of law alone on
which there has been dissent, whether they were properly admissible in
evidence.
It was contended by the respondent in this Court
that the statements obtained by the police officers were not freely and
voluntarily made, but were obtained as a result of cross‑examination
calculated to induce admissions.
On the other hand the Crown contended that, even
though there was cross-examination (which was not conceded), failure to give a
warning, or other violation of the
[Page 972]
usual rules relating to the proper securing of
statements, such violation or failure does not, of itself, necessarily render
such statements inadmissible.
In Regina v. Gavin et al., it was held (per Smith J.) that
when a prisoner is in custody the police have no right to ask him questions.
This decision was overruled by the Court of Criminal Appeal in Rex v. Best, which was a case in which, while the
prisoner was in custody and had been cautioned, he was searched and a sum of
money was found in his possession. The constable thereupon asked the prisoner
where the money came from. Lord Alverstone C.J. at p. 693 said:
There is no ground for interfering in this
case. It is quite impossible to say that the fact that a question of this kind
has been asked invalidates the trial. There are many cases in which the
prisoner is entitled to give an explanation as to anything found on him, and
the question might give him an opportunity of saying and shewing that the thing
found was his own property. In our opinion Reg. v. Gavin is not a
good decision, and it is commented on in a note printed at the end of the
report. The decision has certainly not been followed to its full extent. As set
out in the report the statement of the law is too wide and requires
qualification.
In Rex v. Voisin, the Court of Criminal Appeal considered
the effect of the decision in Rex v. Best, supra, and at p. 539 A.T.
Lawrence J. said:—
We read that case as deciding that the mere
fact that a statement is made in answer to a question put by a police constable
is not in itself sufficient to make the statement inadmissible in law. It may
be, and often is, a ground for the judge in his discretion excluding the
evidence; but he should do so only if he thinks that the statement was not a
voluntary one in the sense above mentioned, or was an unguarded answer made in
circumstances that rendered it unreliable, or unfair for some reason to be
allowed in evidence against the prisoner.
In the present case there was no evidence of
inducement or coercion, no evidence of threat or promise of reward.
In my view it would be quite impossible to
discover the facts of a crime without asking questions of persons from whom it
was thought that useful information might be obtained. Indeed, such questions
might give the suspected person an opportunity of demonstrating that the
suspicion of guilt attaching to him was without foundation. The questioning
must not, of course, be for the purpose of
[Page 973]
trapping the suspected person into making
admissions and every case must be decided according to the whole of the
circumstances.
The question of the admissibility of a statement
made by an accused person was fully discussed in the judgment of this Court in Boudreau
v. The King. In
that case the appellant Boudreau was convicted of murder and the point of
dissent on which he came before this Court was the improper reception of two
written statements, the first containing an admission of intimacy with the wife
of the murdered man and the second, in addition to a repetition and an
elaboration of the first admission, a full confession of the deed itself. At
the time of making them the appellant was held under a coroner’s warrant as a
material witness. There was no more than a suspicion against him when, in the
first conversation with police officers in which questions were asked him, he
purported to detail his movements on the two or three days before the death and
admitted the intimacy. Boudreau having consented to make the statement in
writing, a justice of the peace was summoned and the statement was made out,
signed and sworn to by him. Before the signing the justice read out the words
of the usual warning, which were printed across the top of the paper. Two days
later, after a formal warning, a further discussion took place with two police
officers and, while one of them was momentarily out of the room and after a
reference had been made to his mother, Boudreau suddently burst out with the
words: “J’aime autant vous le dire, c’est moi qui l’a tué.” The second
statement was put in writing, with the consent of the appellant, and was signed
and sworn to by him. The trial judge ruled that these statements were
admissible in evidence and the majority of the Court of King’s Bench, Appeal Side,
Province of Quebec, agreed with him.
In this Court, Kerwin J. (as he then was), at p.
267, states that the fundamental question is whether a confession of an accused
offered in evidence is voluntary and goes on to point out that the mere fact
that a warning was given is not necessarily decisive in favour of
admissibility, but, on the other hand, the absence of a warning should not bind
[Page 974]
the hands of the Court so as to compel it to
rule out a statement. Accordingly, the presence or absence of a warning is a
factor and, in many cases, an important one.
Rand J., at p. 269, points out that no doubt
arrest and the presence of officers tend to arouse apprehension which a warning
may or may not suffice to remove. The rule is directed against the danger of
improperly instigated, or induced, or coerced admissions and the statement
should be that of a man “free in volition from the compulsions or inducements
of authority”.
Kellock J., at p. 276, states that in all cases
the question is whether the Crown has satisfied the onus that the statement
has, in fact, been made voluntarily and that in none of the cases is it laid
down that a statement made by a person in custody, in answer to questions put
by a person in authority, is, as a matter of law, inadmissible.
In Boudreau v. The King the Court
followed the governing principle as stated by Viscount Sumner in Ibrahim v.
The King:
It has long been established as a positive
rule of English criminal law, that no statement by an accused is admissible in
evidence against him unless it is shewn by the prosecution to have been a
voluntary statement, in the sense that it has not been obtained from him either
by fear of prejudice or hope of advantage exercised or held out by a person in
authority.
The principle laid down in Ibrahim v. The
King was followed by this Court in Prosko v. The King, where, at p. 237, Anglin J. pointed out
that the two American detectives who had the custody of the appellant were
persons in authority and that the appellant was in the same plight as if in
custody in extradition proceedings under a warrant charging him with murder and
that no warning had been given, and that while these facts did not, in
themselves, suffice to exclude the admissions, they were undoubtedly
circumstances which required that the evidence tendered to establish their
voluntary character should be closely scrutinized.
Applying the principles contained in the
authorities to the facts of the present case, I am of the opinion that the
statements were properly admissible in evidence.
[Page 975]
It was contended by the respondent that there
was misdirection and non-direction amounting to misdirection on the part of the
learned trial judge in that he had failed to lay the theory of the defence
adequately before the jury and failed to direct the jury as to how the law in
relation to murder should be applied to the facts that they might find.
The majority of the members of the Court of
Appeal, that is Pickup C.J.O. and Laidlaw, Aylesworth and Schroeder JJ.A.,
upheld this contention. The appeal was allowed and a new trial was directed.
Roach J.A., dissenting, held that there was no
misdirection or non-direction amounting to misdirection by the learned trial
judge in such matters of law and that there was no failure to lay the theory of
the defence adequately before the jury and no failure to direct the jury as to
how the law in relation to murder should be applied to the facts, and would
have dismissed the appeal.
The main theory of the defence is that the
respondent had sexual intercourse with the deceased with her consent and,
although the act of sexual intercourse was completed, the deceased was not
sexually satisfied and wanted it repeated; that she then commenced to annoy the
respondent and that, without intending to do her any harm, he grabbed her scarf
and “she just went limp”. This theory is based upon the evidence that there was
haemorrhaging from injury to her private parts and consequently the deceased
was not dead when the act of sexual intercourse took place. Put shortly, the
intercourse and strangling were independent acts.
The Crown contended that the deceased had been
raped and strangled and that the act of strangulation was done in furtherance
of the act of rape.
In my view, the real problem which presented
itself to the jury was the difficulty in reconciling the written statement of
the respondent with the other evidence in the case. In other words, did the
respondent cause the death of the deceased under the circumstances as set out
in his statement, or did her death ensue as a result of bodily harm
intentionally inflicted by him to facilitate the act of sexual intercourse?
[Page 976]
I agree with the opinion of Roach J.A. that the
learned trial judge placed the two opposing theories fairly before the jury, so
that they could not fail to understand the issue they had to decide. I am
further in agreement with Roach J.A. that the fact of haemorrhaging is equally
consistent with the Crown’s theory that the respondent was throttling the girl
while he was attempting, or engaging in, the act of intercourse as it is with
the theory of the defence that the intercourse was completed and the strangling
occurred subsequently.
The defence that the act of sexual intercourse
was voluntary on the part of the deceased was rejected by the jury and, in view
of the evidence relating to the disarray of the clothing of the deceased when
her body was found, the pathological evidence as to the description of her
injuries, together with the photographs which were entered as exhibits at the
trial showing the condition of her neck and head, in my opinion it was properly
rejected.
At the trial objection was quite properly taken
to the evidence of the pathologist, Doctor McLean, where he stated that the
deceased had been raped. This was a matter for the jury, but, on cross‑examination,
the doctor made it quite clear that he was not prepared to venture an opinion,
based on his medical observations, as to whether the deceased had or had not
consented to having sexual intercourse with the respondent.
I have nothing further to add to the reasons of
Roach J.A. on the appeal on the ground of misdirection.
In the result, in my view, the charge was
adequate and there was no misdirection or non‑direction amounting to
misdirection and, in any event, no substantial wrong or miscarriage of justice
has occurred.
I would allow the appeal and restore the
conviction.
CARTWRIGHT J. (dissenting):—On
April 27, 1956, the respondent was convicted before Treleaven J. and a jury at
the Toronto assizes of having murdered one Linda Lampkin on or about January
18, 1956. He appealed, and applied for leave to appeal, to the Court of Appeal
on a number of grounds. His appeal was heard on June 18 and 19, 1956, the Court
being composed of Pickup C.J.O. and Laidlaw, Roach, Aylesworth and Schroeder
JJ.A. At the conclusion
[Page 977]
of the argument the learned Chief Justice
announced that the appeal was allowed, the conviction quashed and a new trial
directed, with Roach J.A. dissenting, and that written reasons would be
delivered later. These were delivered on June 27.
Pickup C.J.O., with whom Laidlaw and Schroeder
JJ.A. agreed, was of opinion that the appeal should be allowed on two grounds,
(i) that the Crown had failed to show that an oral statement made by the
respondent to two police officers between 5 and 6 p.m. on January 19 and a
written statement made by him immediately afterwards were free and voluntary;
and that the erroneous admission in evidence of these statements was in itself
sufficient to require the quashing of the conviction, and (ii) that, even
assuming for the purpose of dealing with the sufficiency of the charge of the
learned trial judge to the jury that the statements were admissible, the
learned trial judge had failed to lay the theory of the defence adequately before
the jury and had failed to direct them as to how the law in relation to murder
should be applied to the facts as they might find them.
Roach J.A. was of opinion (i) that the learned
trial judge was right in holding that the written statement referred to above
was admissible, and, while he does not say so expressly, it is, I think,
implied in his reasons read as a whole that he was also of opinion that the
oral statement which preceded it was admissible, (ii) that, while not saying
that the charge of the learned trial judge was a perfect charge, he was
satisfied “that it was entirely adequate; that there was no misdirection and no
non-direction amounting to misdirection, and that in any event no substantial
wrong or miscarriage of justice has occurred”.
Aylesworth J.A. agreed with the reasons and
conclusion of Pickup C.J.O. on the ground of the inadequacy of the charge to
the jury; but as to the admissibility of the statements he said:—
I do not, however, agree that the
statements given to the police by the appellant were inadmissible. On the
contrary, I think they were admissible and were properly received in evidence
at the trial. I concur in the reasons of my brother Roach in this respect and I
have nothing to add to those reasons.
[Page 978]
It would appear from the paragraph quoted that
Aylesworth J.A. read the reasons of Roach J.A. as deciding that the oral
as well as the written statement was admissible.
In the result Aylesworth J.A. agreed with the
order proposed by Pickup C.J.O.
On June 28, 1956, the Attorney-General for
Ontario gave notice of appeal to this Court. In the view which I take of this
case it is necessary for me to deal only with the point relating to the
admissibility of the statements made by the respondent and therefore I quote
only those parts of the notice of appeal which refer to that point. These are
as follows:—
In regard to the second statement of the
Respondent filed as Exhibit 53 at the trial [i.e., the written statement
referred to above], the Chief Justice of Ontario, Laidlaw and Sohroeder, JJ.A.,
held that the learned trial Judge erred in law in holding that the said
statement was admissible in evidence at the trial and allowed the appeal also
on this ground.
Mr. Justice Roach and Mr. Justice
Aylesworth (dissenting on this ground) held that the learned trial Judge did
not err in law in holding that the said statement was admissible in evidence at
the trial.
The Attorney-General for Ontario appeals to
the Supreme Court of Canada upon the following grounds:...
2. There was dissent on a question of law
by the Honourable Mr. Justice Roach and the Honourable Mr. Justice
Aylesworth from the majority judgment of the Court of Appeal for Ontario which
erred in law in holding that the trial Judge erred in holding that the second
statement of the Respondent, filed as Exhibit 53 at the trial, was admissible
in evidence at the trial.
Counsel for the respondent moved at the opening
of the hearing before us to quash the appeal on the ground that ground of
appeal no. 2, quoted above, did not raise a strict question of law alone. The
Court decided to hear the argument of the motion with the argument of the
appeal.
In my opinion the motion should be granted.
After reading all the evidence and everything that was said by counsel and by
the learned trial judge during the hearing and disposition of the issue raised
as to the admissibility in evidence of the oral and written statements above
referred to and everything said on the point in the reasons for judgment
delivered in the Court of Appeal I am unable to discern any dissent on, or
indeed any difference of opinion as to, any point of law. The difference of
opinion was as to whether the proper inference to be drawn from the evidence
[Page 979]
as to the primary facts leading up to and
surrounding the making of the statements was that the Crown had satisfied the
onus of showing that the statements in question were freely and voluntarily
made. In the circumstances of the case at bar the question whether or not that
inference should be drawn was, in my opinion, one of fact.
The evidence of the witnesses on the voir
dire as to what I have called the primary facts was not conflicting nor was
its veracity attacked in cross-examination and all of the learned judges in the
Courts below have proceeded on the basis that it contained an accurate account
of what occurred. The effect of that evidence is set out in some detail in the
reasons delivered in the Court of Appeal (vide [1956] O.R. 696). I
propose to give a comparatively brief summary of it.
The lifeless body of Linda Lampkin was found on
Commissioners Street late in the evening of January 18, 1956, and the police
immediately commenced an investigation. At about 7 a.m. on January 19, police
officers visited the place in which a truck which had been driven by the
respondent on the previous evening was standing. They examined the truck and
found in it a bobby-pin and a lipstick said to have belonged to the deceased.
On seeing the lipstick the respondent collapsed and the officers rendered some
assistance to him. When he had recovered his composure Sergeant-Detective
O’Driscoll and Detective Coghill asked him to accompany them to police
headquarters. On arrival there he was questioned by these two officers in a
small room, called the interrogation-room, until about 9 a.m. During this
period police officers took from him a windbreaker, a shirt, a pair of pants,
scrapings from his finger‑nails and some hairs taken from his head and
body. Shortly after 9 a.m. these detectives left and Detective Simmonds
proceeded to obtain a statement from the respondent which was later typewritten
and was signed by the respondent about noon. There was nothing in this
statement of an incriminating character. It contained a denial of having seen
the deceased on January 18. Just after this statement was signed and completed,
Sergeant-Detective O’Driscoll and Detective Coghill entered the
interrogation-room, and Detective Simmonds left them there with the
[Page 980]
respondent. They remained for a short time. The
respondent was given a sandwich and a glass of milk for lunch. The respondent
was kept in the general detective office during the afternoon, under close
supervision, while Detective Simmonds and Detective McNeely continued their
work of investigation elsewhere. About 5 p.m. they returned to headquarters and
again took the respondent into the interrogation-room where he had been in the
morning. They told the respondent that they had been working since 5 o’clock in
the morning, that they had been working pretty hard, that they had received
information that he was seen with the deceased on the previous day about 8.45
p.m., that it might be necessary for them to take him out with them in the
police car to the west end in the area that he worked in, that there might be
other witnesses out there who might have seen things, that the lipstick that
was found in his truck had been identified and that they did not believe what
he had been telling them. It was at this point that the respondent made the
oral incriminating statement. He was at once formally cautioned and then made
the longer statement which was reduced to writing and signed by him.
After a full recital of this evidence, the
learned Chief Justice of Ontario quotes from the judgment delivered in this
Court in Boudreau v. The King, and
continues:—
The principle as set forth in that case is
a positive rule of English criminal law. It has been applied in many subsequent
cases to which I need not refer, because the ruling which ought to be made by
the Court depends on the evidence and particular circumstances disclosed
therein in each case. I simply direct my mind and consideration to the
fundamental question: Were the statements in question in the instant case
freely and voluntarily made?
After a further review of the facts and another
reference to the Boudreau case the learned Chief Justice continues:—
Applying that principle to the particular
facts in this case, I have reached the conclusion that the Crown has failed to
show that the oral statement made by the appellant, or the written statement
made by him immediately afterwards, was free and voluntary. Therefore the
learned
[Page 981]
judge, in my opinion, should not have
admitted either of those statements in evidence. The erroneous admission in
evidence of these incriminating statements is, in itself, sufficient to warrant
this Court directing a new trial.
Roach J.A. opens the portion of his reasons
dealing with this point as follows:—
In my opinion the learned trial judge was
right in holding that it was admissible. The question before him and now before
this Court may be stated thus: Was that statement freely and voluntarily made
or was it obtained from the appellant either by fear of prejudice or hope of
advantage exercised or held out to him by the detectives? If it was a free and
voluntary statement it was admissible: if it was not it should have been
barred.
There can be no doubt as to the rule.
The learned justice of appeal then refers to Ibrahim
v. The King,
quoting a passage on which, amongst others, the judgments in this Court in Boudreau’s
Case were founded. He stresses the fact that the respondent had not given
evidence on the voir dire, attaches great weight to the caution given
immediately before the taking of the written statement, points out that there
had been no threats or promises and in concluding says:—
In determining whether the answers made are
admissible or not, the Court inevitably must come back to the primary question:
Were they made voluntarily in the sense described in the rule as laid down by
Viscount Sumner, supra?
On reading and rereading the reasons of Pickup
C.J.O. and Roach J.A. I look in vain for any difference as to the applicable
law.
It was suggested in argument that the learned
Chief Justice of Ontario had held as a matter of law that the fact, if
established, that police officers “cross-examined” the respondent while in de
facto custody and under suspicion required the trial judge as a matter of
law to reject the statements. I can find no such ruling in his reasons. He
regarded the fact that certain questions were put as one of the relevant
circumstances to be weighed in deciding the question before the Court which he
had already accurately described in words, which I have quoted above, which do
not differ in any matter of substance from those used by Roach J.A.
[Page 982]
There is no suggestion in any of the reasons
that the learned trial judge misdirected himself on the law on this branch of
the case. His conclusion on the evidence before him was that the statements
were shewn to be voluntarily made. The minority in the Court of Appeal reached
the same conclusion but the majority were of the contrary opinion. It is not
relevant to inquire which conclusion I would have reached on the evidence, for
such a conclusion is one of fact and not of law.
No doubt there may be cases in which the
question whether a statement made by an accused is admissible in evidence
becomes one of law; but, in my opinion, the case at bar is not such a case. I
conclude that we are without jurisdiction to deal with ground 2, quoted above
from the notice of appeal of the Attorney-General. This being so it follows
that the appeal cannot succeed as it is clear from the portion of the reasons
of the learned Chief Justice of Ontario secondly quoted above that in dealing
with this ground the majority decided that the erroneous admission of the
statements in question was in itself sufficient to require the directing of a
new trial.
If, contrary to the view that I have expressed,
it could be asserted that (i) there is a difference of substance between the
statement of the principles of law which are to be applied in determining
whether a statement by an accused is admissible made by Pickup C.J.O. and that
made by Roach J.A. and (ii) that there was error in the former statement, it would
not follow that so far as this ground of appeal is concerned the appeal should
be allowed and the conviction restored. Before restoring the conviction this
Court would, at least, have to be satisfied that it could safely be affirmed
that but for the supposed error in law the majority in the Court of Appeal
would necessarily have concluded that the statements were admissible. As is
pointed out by Lord Sumner in Ibrahim v. The King, supra, at pp. 609-10,
the question whether it has been shewn by the prosecution that the statement of
an accused was voluntary in the sense that it has not been obtained from him
either by fear of prejudice or hope of advantage exercised or held out by a
person in authority is one of fact to be
[Page 983]
decided by the trial judge. The Court of Appeal
has jurisdiction to weigh the evidence as to the circumstances surrounding the
making of the statement and to substitute its decision for that of the trial
judge. This Court has no jurisdiction to re-weigh the evidence and substitute
its opinion for that of the Court of Appeal. In view of the rule that the onus
of proving a statement by an accused to have been voluntary in the sense
mentioned rests upon the prosecution, I find difficulty in accepting the view
that it can ever be said as a matter of pure law that the question whether that
onus has been satisfied must be answered in the affirmative. However in view of
the conclusion which I have reached above as to our lack of jurisdiction in
this case, I do not pursue these questions further.
I would quash the appeal.
FAUTEUX J.:—This is an appeal from a majority
judgment of the Court of Appeal for Ontario
setting aside the conviction of the respondent for the murder of one Linda
Lampkin and ordering a new trial. The appeal is taken under the provisions of
s. 598(1) (a) of the Criminal Code and the questions of law as to
which a dissent is alleged are (i) whether, as held by Pickup C.J.O., with the
concurrence of Laidlaw and Schroeder JJ.A., Roach and Aylesworth JJ.A.
dissenting, a written statement, filed as ex. 53, and an oral statement
immediately prior thereto, both made by the respondent, were illegally admitted
in evidence, and (ii) whether, as held by Pickup C.J.O., with the concurrence
of Laidlaw, Aylesworth and Schroeder JJ.A., Roach J.A. dissenting, the trial
judge failed to lay the theory of the defence adequately before the jury and
direct them as to how the law in relation to murder should be applied to the
facts.
Dealing with question (i): it is the submission
of counsel for the respondent that this Court has no jurisdiction to entertain
this ground of appeal for the reason that it does not involve a question of law
in the strict sense, but a pure question of fact or at the most a question of
mixed law and fact. With this submission I am unable to agree. Whether or not
evidence is admissible is always a question to be determined in the light of
what the law is with respect to
[Page 984]
the particular nature of the evidence tendered.
While as to certain subject-matters of evidence such as confessions, this
determination requires a prior examination of the facts which, if judicially
found to foe within the rule of law governing the admission of such evidence,
will render the same admissible, any question as to what the rule is in the
matter involves a question of law in the strict sense. Hence a divergence of
views between the majority and minority members of a Court of Appeal as to what
the law is clearly gives jurisdiction to this Court to examine the point and
satisfy its statutory duty to determine the matter. With reference to the rule
of law governing the admissibility of the extrajudicial admissions made by the
respondent in the present instance, Roach J.A., for the minority, said:—
There can be no doubt as to the rule. It
was stated by Viscount Sumner in Ibrahim v. The King, [1914] A.C. 599 at
609, as follows: “It has long been established as a positive rule of English
criminal law, that no statement by an accused is admissible in evidence against
him unless it is shewn by the prosecution to have been a voluntary statement, in
the sense that it has not been obtained from him either by fear of
prejudice or hope of advantage exercised or held out by a person in authority.”
* * *
There is no positive rule of evidence that
if improper questions are asked of a prisoner in custody the answers to them
are, merely on that account, inadmissible. The cases are reviewed by Kellock J.
in Boudreau v. The King, [1949] S.C.R. 262 at 270 et seq., 94
C.C.C. 1, 7 C.R. 427, [1949] 3 D.L.R. 81. I do not review them here. In
determining whether the answers made are admissible or not, the Court
inevitably must come back to the primary question: Were they made voluntarily in
the sense described in the rule as laid down by Viscount Sumner, supra.
(The italics are mine.)
On the other hand, Pickup C.J.O., for the
majority, stated:—
In my opinion, the Crown does not discharge
the onus resting upon it by merely adducing oral testimony showing that an
incriminating statement made by an accused person was not induced by a promise
or by fear of prejudice or hope of advantage. That statement of the rule of law
is too narrow. The admissions must not have been “improperly instigated or
induced or coerced”: per Rand J. in Boudreau v. The King, supra, at p. 269.
The admissions must be self-impelled and the statement must be the statement of
a man “free in volition from compulsions or inducements of authority”.
[Page 985]
Thus it appears that Roach J.A., with the
concurrence of Aylesworth J.A., held the view that the decision of this Court
in Boudreau v. The King did not change the law as stated by Viscount
Sumner and that a declaration made by an accused is a voluntary statement if it
has not been obtained from him either by fear of prejudice or hope of advantage
exercised or held out by a person in authority. In the view of Pickup C.J.O.
and Laidlaw and Schroeder JJ.A., this statement of the rule is too narrow and
in addition to proving that the statement has not been obtained by fear of
prejudice or hope of advantage, the prosecution must further show that the
statement was not otherwise influenced by the course of conduct adopted by the
police, that it must be self-impelled, failing which it is not a voluntary one
in the sense required by law. The merit of each of these views of the law is,
of course, foreign to the consideration of our jurisdiction to entertain this
ground on appeal, for it is the precise point which this Court will have to
determine on the appeal itself. The above difference in the statement of the
law applied is essentially what gives jurisdiction to this Court. It may be
added, before parting with the consideration of this preliminary objection,
that none of the cases invoked by the respondent supports it or conflicts with
the views here expressed.
On the merits of ground (i): as to what the law
is in the matter, I agree with the views held by Roach and Aylesworth JJ.A. As
I read the reasons for judgment of the majority in this Court in Boudreau v.
The King, supra, I find nothing to suggest an intention to modify the rule
of law as stated by Viscount Sumner. With respect to the English “Judges’
Rules” as to questions put by police officers, it has been repeatedly and again
recently said that they are administrative rules for the guidance of police
officers but not rules of law and that a breach thereof does not per se render
the statement inadmissible if the true test of voluntariness laid down by
Viscount Sumner is met: Regina v. Wattam; Regina v. May; Regina v. Bass; Regina v. Harris-Rivet. As to all the evidence in
[Page 986]
this case and particularly that related to the
circumstances prior to and contemporaneous with the impugned statements, it is
extensively reviewed in the reasons for judgment of Roach J.A. in the Court
below, and
need not likewise be related here. In brief, while the law‑enforcement
officers were apprising the respondent at police headquarters, where he had
agreed in the morning to accompany them, that, as a result of further
investigation, they could not believe some of the declarations he had there
made in the morning, he was preoccupied in mind, eventually breaking his
silence by saying:—
I was just thinking of my wife and kids. I
didn’t mean to do it. She started kibitzing around and I grabbed her by the
scarf and she didn’t breathe no more.
He was immediately stopped and informed that he
was arrested on a charge of murder, and having been given the customary
warning, he proceeded to make the declarations reduced in writing in ex. 53,
which he signed. The above attitude and utterances of the respondent are no
evidence that his mind was in any way affected by fear of prejudice or hope of
advantage. On the evidence, led in the cross‑examination of the police
officers relating the event, the thoughts of the respondent throughout the day
had been directed to his wife and children, and he was explaining that it was
on account of them that he had made, in the morning, some false declarations.
Indeed it was never suggested by counsel for the respondent at any stage of the
trial, including that of the procedure on voir dire, nor can it be
implied from any of the questions or answers appearing in any part of the whole
of the evidence, that the impugned statements were not voluntary in the sense
indicated by Viscount Sumner or that the burden of the Crown to meet that
particular test had not been discharged. As the issue was tried before, and
left, to, the jury, these impugned statements, on the unchallenged information
given at the hearing before this Court by counsel for the respondent, were
represented by the defence to be voluntary in any sense of the word and
truthful. The submission that these particular statements were inadmissible was
raised for the first time for the purpose of the appeal, not in the original,
but in a supplementary notice of appeal. That these statements were voluntary
under the rule stated by Viscount Sumner
[Page 987]
is not challenged by the majority in the Court
below which found it necessary to hold as a matter of law that the statement of
the rule was too narrow and, on the law they applied, found as a fact, not that
fear of prejudice or hope of advantage was exercised or held out by the police,
but that the course of conduct they adopted precluded any conclusion that the
statements were self-impelled. Assuming that it could be said that the conduct
of the police in the circumstances of this case was not in accordance with the
“Judges’ Rules”, it was, particularly under the authorities above quoted,
within the discretion of the trial judge, if otherwise satisfied that the test
of voluntariness stated by Viscount Sumner had been met, to admit these
statements in evidence. Again, while the defence objected successfully to the
admissibility of certain declarations made subsequent to the signing by the accused
of ex. 53, it did not invite the Court to reject the impugned statements. And
if, on the view the trial judge formed on the voir dire, the occasion
arose for him to exercise this discretionary power, I find it impossible to say
that he failed to do so judicially in admitting them in evidence.
Dealing with question (ii): the theory of the
Crown was that Linda Lampkin had been strangled in furtherance of the act of
rape. The theory of the defence, contained in the statement filed as ex. 53,
was that, sexual intercourse having taken place with her full approval and
consent, Linda Lampkin not being sexually satisfied began to annoy the accused
who then grabbed her scarf without intending any harm, “and she didn’t breathe
no more”. The evidence with respect to the condition both of the body of the
victim and of her clothing is violently inconsistent with any suggestion of
consent on her part. On the evidence, the cause of death was asphyxia due to
strangulation resulting from the forceful tightening during a continuous period
of 3 to 5 minutes of a knotted scarf she had around her neck, producing thereby
a deep groove in the flesh-tissue corresponding in size to the width of the
scarf. The fact that
[Page 988]
death actually occurred subsequent to the rape
does not necessarily show that this forceful and continuous tightening of the
scarf, which brought death by strangulation, was divorced from the act of rape.
As Roach J.A. puts it:—
That theory [the theory of the defence]
rested on the foundation that the act of sexual intercourse was voluntary on
her part and that she wanted it repeated. Remove that prop from beneath that
theory and it would collapse. It was her persistence, so the accused said, in
wanting the act repeated that caused him to take hold of the scarf. That was
his explanation. If that explanation should be rejected then he must have taken
hold of it for some other purpose. What was that other purpose? That other
purpose, according to the Crown’s theory, was to overpower her so that against
her will he could have sexual intercourse with her.
That the accused killed the girl there was
no doubt. He said so. What the jury had to decide was: Did he slay her under
the circumstances contained in his explanation or did her death ensue as the
result of bodily harm intentionally inflicted by him to facilitate him in
having sexual intercourse with her?
Weak as it was, the theory of the defence was
put to the jury and I agree with Roach J.A. that the two opposing theories were
fairly and squarely explained to them in such a manner that they could not fail
to understand the issue they had to decide according to law.
There remains to consider two other grounds of
appeal raised by the respondent before the Court of Appeal and with which the
majority did not find necessary to deal in view of their conclusions as to the
two points already heretofore considered. It is the respondent’s submission
that the learned trial judge failed to instruct the jury (i) as to what use
could be made of the expert evidence of Dr. Chester McLean and (ii) of their
obligation to reject any of his opinions which he was not qualified as an
expert to give.
These objections are dealt with in the reasons
for judgment of Roach J.A. and I am in respectful agreement with the manner in
which he disposed of them.
I am also of the opinion that, on all the
evidence in this case, no jury properly instructed could, if true to their
oath, return any other verdict than that the accused was guilty as charged.
I would allow the appeal, set aside the judgment
of the Court of Appeal for Ontario, and restore the verdict of the jury.
[Page 989]
ABBOTT J.:—A question which has caused me some
difficulty is that raised by respondent in his motion to quash the appeal,
namely, whether or not, in connection with the ground of appeal relating to the
admissibility of certain oral and written statements made by respondent, there
was dissent on a question of law. I have reached the conclusion that there was.
As to the admissibility of the incriminating
oral and written statements made by the accused, in his reasons in the Court
below, Roach J.A. (speaking for himself and Aylesworth J.A.) has stated the
rule of law to be applied in the following terms:—
Was that statement freely and voluntarily
made or was it obtained from the appellant either by fear of prejudice or
hope of advantage exercised or held out to him by the detectives?
(The italics are mine.)
It is to be noted that he has used the precise
words of the rule as laid down by Lord Sumner in Ibrahim v. The King, with the exception that he has
substituted the words “the detectives” for “a person in authority”.
The Chief Justice of Ontario, speaking for the
majority and referring to the rule in question, held that:—
In my opinion, the Crown does not discharge
the onus resting upon it by merely adducing oral testimony showing that an
incriminating statement made by an accused person was not induced by a promise
or by fear of prejudice or hope of advantage. That statement of the rule of law
is too narrow. The admissions must not have been “improperly instigated or
induced or coerced”: per Rand J. in Boudreau v. The King, supra, at p.
269. The admissions must be self-impelled, and the statement must be the
statement of a man “free in volition from the compulsions or inducements of
authority”. The statement must be “freely and voluntarily made”.
This difference between the dissenting judgment
and that of the majority is in my view clearly a question of law, which gives
this Court jurisdiction.
Moreover, referring to the statements made by
the respondent, Roach J.A. said:—
The appellant did not give evidence either
on the voir dire or in defence to the charge. To put it otherwise he has
not at any time said in evidence that in making the statement he felt under any
compulsion or that it was induced by any fear of prejudice or hope of advantage
held out to him. When he blurted out the words “I was just thinking of my
[Page 990]
wife and kids”, and so forth, he was
immediately stopped by the detectives and cautioned. He said he understood that
caution. If he understood it then he understood that he was not obliged to say
anything, because in administering the caution to him he was told “you are not
obliged to say anything unless you wish to do so”. In my respectful opinion the
statement could be held inadmissible only on the theory that he did not
understand the caution, in the face of his statement, not denied, that he did,
or that, though he understood it, he still felt under some compulsion induced
by some improper external stimulus to make it.
I do not think it should now be held that
he did not understand the caution, in the face of his statement that he did. If
he understood it then I can see no room for the suggestion that, despite his
understanding, he still felt some compulsion. It would have been quite a
different matter if, on the voir dire, he had gone into the witness-box
and stated either that he did not understand the caution or that, understanding
it, he nevertheless made the statement because he was fearful that if he did
not he would be prejudiced, or hoped that if he did it might be to his
advantage. In the absence of such a complaint or explanation coming out of his
mouth, to hold now either that he did not understand the caution or that,
understanding it, he felt under some compulsion, would in my respectful opinion
be to act on sheer speculation, and would not be justified by the evidence.
It was not suggested on cross-examination
of the officers on the voir dire, in the argument submitted by counsel
for the accused to the trial judge, or in the argument presented to this Court,
that what the detectives said to the appellant with respect to the information
they had obtained that afternoon was not true and that by pretending that they
had such information they had tricked the accused into making an admission of
guilt. If I understood the argument of counsel for the appellant in this Court
it was simply this, that when the detectives told the accused that as a result
of their investigations they had received some information to the effect that
he had been seen with the deceased on the previous night at St. John’s
Road and Jane Street, and that they did not believe what he had told them to
the contrary in the morning, they thereby invited him to make some reply. I concede
that that is so. It is true that what the detectives said consisted of
affirmative statements and was not interrogatory, but I think there could have
been no other reason for them to make those statements than to invite a reply.
The detectives did not know what the reply might be. It might be a denial or an
explanation, or it might be an admission. Let me assume for the moment that the
detectives hoped that it would be an admission of guilt. The fact remains that
they made no threats that may have raised any fear in the mind of the
appellant, nor did they hold out any promise or hope of advantage if he
admitted his guilt nor did they suggest to him that he might be prejudiced if
he did not.
As I read this passage, the learned judge has
held that in his opinion there was no evidence to justify a finding that the
respondent’s statements were obtained from him “either by fear of prejudice or
hope of advantage exercised or held out to him”
by the two detectives. This is a question of
[Page 991]
law upon which I share his view. I am therefore
in agreement with Roach and Aylesworth JJ.A. that the statements in
question were properly admitted by the trial judge.
As to the other ground of dissent, I am in
respectful agreement with Roach J.A. that there was no misdirection and no
non-direction amounting to misdirection. There is nothing which I could
usefully add to his reasons for judgment.
I would allow the appeal and restore the
conviction.
Appeal allowed and conviction
restored.
Solicitor for the appellant: Clarence P.
Hope, Toronto.
Solicitors for the respondent: Humphrey
& Locke, Toronto.
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