White v. R., [1956] SCR 709

Supreme Court of Canada

White v. R., [1956] S.C.R. 709

Date: 1956-06-27

Peter White (Defendants) Appellant;

and

Her Majesty The Queen (Plaintiff) Respondent.

1956: June 7, 8, 27.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Sexual offence against child—Evidence—Corroboration—Impotency and lack of opportunity pleaded but found not true by trial judge—Whether corroboration of evidence of child.

The appellant was convicted of unlawful sexual intercourse with his niece, a girl under 14 years of age. In his defence, he alleged lack of opportunity and the fact that he was impotent. In rebuttal, the girl’s older sister testified that the appellant had had sexual intercourse with her a number of times, and the mother of the girls testified that the appellant had admitted to her acts of intercourse with the older girl. The trial judge held that the appellant’s statements as to opportunity and impotence were false. The Court of Appeal for Ontario affirmed the conviction.

Held (Cartwright and Nolan JJ. dissenting): The appeal should be dismissed.

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Per curiam: There was evidence upon which it was open to the trial judge to find that the child understood the nature and consequences of an oath and could therefore be sworn in as a witness.

Per Taschereau, Fauteux and Abbott JJ.: There was evidence from which the trial judge could infer corroboration in law. Whether a false statement is or is not corroboration must depend upon all the circumstances in a particular case. In the present case, both the lack of opportunity and the physical incapacity to commit the offence were material facts, either of which, if true, afforded a complete defence to the charge. The nature of the false statements and the circumstances in which they were made were such as could lead to an inference in support of the evidence of the child.

Per Cartwright and Nolan JJ. (dissenting): In all the circumstances of the case at bar, the false statements could not in law be regarded as corroboration of the evidence of the child. Evidence in corroboration must at the least be independent evidence from which it results as a matter of inference that it is more probable that the offence was committed by the accused than not. The false statements were not evidence of that nature.

APPEAL from the judgment of the Court of Appeal for Ontario[1], affirming the conviction of the appellant.

J.M. Reycraft, for the appellant.

W.C. Bowman, Q.C., for the respondent.

The judgment of Taschereau, Fauteux and Abbott JJ. was delivered by:—

ABBOTT J.:—The relevant facts in this appeal are fully set forth in the reasons of my brother Cartwright, which I have had the advantage of considering.

Leave to appeal to this Court was granted on the following questions of law:—

(1) Was there evidence on which it was open to the trial judge to find that the child, Pearl Miller, understood the nature and consequences of an oath and should be sworn as a witness?

(2) Was there any evidence to corroborate the evidence of the child, Pearl Miller, in any material particular implicating the accused?

(3) Did the trial judge admit inadmissible evidence of the witness, John Miller, as to statements made to him by Helen Miller in the absence of the appellant?

As to the first of these questions, I am satisfied that there was evidence upon which it was open to the trial judge to find as he did and this was the position taken by this Court

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at the hearing when it was indicated to counsel for the respondent that he need not pursue his argument on this point.

The argument before us was directed principally to the second question, that is to say, as to whether two false statements made by the accused at the trial were, in the circumstances of this case, evidence which in law could be corroborative. These two statements were[2] that the accused had no opportunity to commit the offence because the complainant’s brother slept with him, and[3] that for several years he had been impotent and therefore physically incapable of committing the offence. The Court below² held that these false statements were evidence from which corroboration could be inferred, relying upon the dictum of Lord Dunedin in Dawson v. McKenzie³, which has been quoted by my brother Cartwright and which has been discussed and applied in a number of subsequent cases, the most recent of which is Credland v. Knowler[4].

Much could be said for the view that upon a proper construction of the reasons given by the trial judge, he would have been prepared to convict without corroborative evidence. Be that as it may I share his view and that of the Court below that there was in law evidence from which the trial judge could infer corroboration.

Whether a false statement is or is not corroboration must, of course, depend upon all the circumstances in a particular case. In the present case both lack of opportunity and physical incapacity to commit the offence were material facts, either of which, if true, afforded a complete defence to the charge laid. In my opinion the nature of the false statements made by the accused and the circumstances in which they were made were such as could lead to an inference in support of the evidence of the child. As Taschereau J., speaking for the majority of the Court, said in Macdonald v. The King[5]:

The behaviour of a witness as well as his contradictory or untrue statements are questions of fact from which a jury may properly infer corroboration.

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As to the third ground of appeal, I am satisfied that the learned trial judge specifically rejected the evidence complained of.

Since in my opinion there is no error in the judgment of the Court below, I would dismiss the appeal.

The dissenting judgment of Cartwright and Nolan JJ. was delivered by:—

CARTWRIGHT J.:—On December 9, 1955, the appellant was convicted before His Honour Judge Legris in the County Court Judges’ Criminal Court of the County of Essex on the charge:—

That he on or about the 11th day of July, in the year of our Lord one thousand nine hundred and fifty-five, at the Township of Sandwich West, in the said County, did unlawfully have sexual intercourse with Pearl Miller, a female person not his wife and under the age of Fourteen years, contrary to the Criminal Code.

His appeal to the Court of Appeal for Ontario[6] was dismissed by a unanimous judgment delivered on February 14, 1956.

The appellant was granted leave to appeal to this Court on the following questions of law:—

(1) Was there evidence on which it was open to the trial judge to find that the child, Pearl Miller, understood the nature and consequences of an oath and should be sworn as a witness?

(2) Was there any evidence to corroborate the evidence of the child, Pearl Miller, in any material particular implicating the accused?

(3) Did the trial judge admit inadmissible evidence of the witness, John Miller, as to statements made to him by Helen Miller in the absence of the appellant?

As to the first point, while the answers of the witness Pearl Miller in the course of her examination by the learned trial judge for the purpose of determining whether she should be sworn seem to me to leave room for doubt as to whether she did in fact understand the nature and consequences of an oath, some of her answers appear to indicate that she had the necessary understanding; and I am unable to say that, as a matter of law, there was no evidence on which it was open to the learned trial judge to find as he did on this point.

In dealing with the second point it is first necessary to refer briefly to the facts. Pearl Miller, with whom the offence was alleged to have been committed, was born on

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February 2, 1943, and so was 12 years and 5 months old at the date of the offence charged. She is a daughter of the appellant’s wife’s sister. Her father died in 1948 and from then until some time in 1955 the appellant made a home for her and her two brothers and three sisters. She testified that she slept in one bedroom with her two younger sisters and the appellant slept in another room, but that he would from time to time get her to come into his bed. Her evidence, if accepted, indicates that the offence had been committed; but when the Crown closed its case there was no corroboration of her testimony.

The appellant gave evidence in defence. He denied the charge explicitly and also testified (i) that he had for some years been physically incapable of having sexual intercourse and (ii) that at the relevant times John Miller, an elder brother of Pearl, had been sleeping in the same bedroom as the appellant. He was asked in cross-examination if he had had sexual intercourse with Helen, a sister of Pearl, who was born on April 2, 1938, and said he had never done so.

The defence then called John Miller who testified that he slept in the appellant’s bedroom except during the summer when he slept with his brother in the playhouse. In cross‑examination he said that the appellant had told him that he had had intercourse with Helen frequently prior to her leaving his house, which she did in February 1955.

In reply the Crown called Helen Miller who testified that the appellant had had sexual intercourse with her a number of times, particularly in December 1954 and January 1955. The Crown then recalled Pearl’s mother, Mrs. Santarossa, who testified that in August 1955, after the preliminary inquiry, she had had a conversation with the appellant. She was asked what the conversation was and answered:—

Well, he told me about the Children’s Aid taking the children and he told me that he did touch Helen and he said he was sorry, but he said he didn’t touch Pearl.

In delivering judgment the learned trial judge says in part:—

It is true the accused is not in good health, but the several statements made by the accused and amongst others that he was not able to have an erection is certainly not correct. It is not a true statement. And again the statement that the playroom was only being used accidentally, so to

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speak, is also not correct; it was used through the summer months. Those are straight denials and clearly point to the unreliability of the accused in respect of several statements. The further admission which the accused made to Mrs. Santarossa at the time of the police court hearing leaves no doubt that he has undoubtedly lied as to his potency.

Taken as a whole, I believe that the facts as they came out this morning are more than sufficient to give substantial corroboration to the story given by Pearl, and so much so on the weakness of the contradiction in the evidence of the accused and the impression that the evidence of Pearl gave me, I would strongly feel justified in finding the accused guilty without corroboration. In this case I am satisfied that there is more than sufficient corroboration in the statements made by the witnesses Helen and Mrs. Santarossa, and the contradiction by the accused himself in his own evidence. Therefore, the only conclusion to which I can arrive is that the accused is guilty as charged.

Counsel for the respondent argues that, in the circumstances of this case, the learned trial judge having held on sufficient evidence that the statements made by the appellant, (i) that he was impotent, and (ii) that John Miller was sleeping in his bedroom at the relevant times, were false, it was open to him to find corroboration in the fact of the appellant having made such false statements.

Reliance is placed on the statement of Lord Dunedin in Dawson v. McKenzie[7], which was quoted by the learned Chief Justice of Ontario:—

Mere opportunity alone does not amount to corroboration, but two things may be said about it. One is that the opportunity may be of such a character as to bring in the element of suspicion. That is, that the circumstances and locality of the opportunity may be such as in themselves to amount to corroboration. The other is that the opportunity may have a complexion put upon it by statements made by the defender which are proved to be false. It is not that the false statement made by the defender proves that the pursuer’s statements are true, but it may give to a proved opportunity a different complexion from what it would have borne had no such false statement been made.

Counsel for the respondent argues that, while the facts, (i) that the appellant occupied a bedroom alone in the vicinity of the room occupied by Pearl, and (ii) that the accused was proved to have been potent six months prior to the date of the offence charged, would not in themselves have amounted to any corroboration of Pearl’s story, the false denials by the appellant of both of these facts could be regarded as corroboration.

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In Credland v. Knowler[8], Lord Goddard L.C.J. discusses the case of Dawson v. McKenzie, supra, and says in part at pages 54 and 55:—

I should be very sorry to lay down, and I have no intention of laying down and I do not think any case has gone the length of laying down, that the mere fact that an accused person has told a lie can in itself amount to corroboration. It may, but it does not follow that it must. If a man tells a lie when he is spoken to about an alleged offence, the fact that he tells a lie at once throws great doubt upon his evidence, if he afterwards gives evidence, and it may be very good ground for rejecting his evidence, but the fact that his evidence ought to be rejected does not of itself amount to there being corroboration.

* * *

In other words, one has to look at the whole circumstances of the case. What may afford corroboration in one case may not in another. It depends on the nature of the rest of the evidence and the nature of the lie that was told.

The question we have to decide is whether, in all the circumstances of the case at bar, the two false statements, set out above, made at the trial by the appellant could in law be regarded as corroboration of the evidence of Pearl Miller. After an anxious consideration of all the evidence I have reached the conclusion that they could not. Evidence in corroboration must at the least be independent evidence from which it results as a matter of inference that it is more probable that the offence charged was committed by the accused than not. It is obvious from reading the record that the accused was a man of little education and limited understanding who protested his innocence and asserted that a false charge had been concocted against him. His false statements at the trial could justify the learned judge in refusing to believe his testimony but they do not, in my view, afford corroboration. They do not, I think, give a different complexion to the opportunity which was afforded by the fact of the appellant’s residence in the same house as Pearl Miller. They are consistent with the panic of a man of limited mental powers faced with so serious a charge and do not in themselves warrant an affirmative inference of his guilt. In their nature the false statements do not appear to me to differ from those in the case, put by my brother Nolan during the argument, of an accused who sets up an alibi which is proved to be false, a course which would seem to me to impeach the accused’s veracity but not to strengthen the case of the prosecution.

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In Macdonald v. The King[9], the false statement of the accused, referred to in the judgments, was made in connection with a meeting with a number of other persons proved to be participants in the crime with which he was charged; the fact of such meeting having taken place was in itself capable of being regarded as corroborative of the evidence of the accomplices apart from the making of the false statement.

I do not read the reasons of the learned trial judge in the case at bar as asserting that he would, although fully conscious of the danger of so doing, have convicted if he had concluded that there was no corroboration; it was not necessary for him to direct his mind to that question since in his opinion there was “more than sufficient corroboration”. In my respectful view, the learned trial judge erred in law in holding that there was corroboration in the evidence of Helen Miller and of Mrs. Santarossa and consequently the conviction cannot be upheld.

This renders it unnecessary for me to deal with the third point on which leave to appeal was granted.

I would allow the appeal, quash the conviction and direct a new trial.

Appeal dismissed.

Solicitor for the appellant: J.M. Reycraft.

Solicitor for the respondent: C.P. Hope.