R. v. Drouin, [1973] SCR 747

Supreme Court of Canada

R. v. Drouin, [1973] S.C.R. 747

Date: 1972-12-22

Her Majesty The Queen (Plaintiff) Appellant;

and

Alfredo and Nelson Drouin (Defendants) Respondents.

1972: November 6; 1972: December 22.

Present: Fauteux C.J. and Abbott, Ritchie, Hall and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Criminal law—Fire set to a building—Admissibility and protective force of admissions of judicial nature—Criminal Code, ss. 374, 375 and 376.

The appeal by the Crown of a judgment of the Court of the Sessions of the Peace acquitting the respondents on charges of having wilfully set fire to a building and of having conspired together for this purpose was dismissed by the Court of Appeal. Hence the appeal to this Court. The appellant contends (1) that the trial judge repudiated in his judgment of acquittal the judgment given by him on the admissibility of the admissions made by the respondents before the Fire Commissioner and (2) that the presumption established by s. 376 of the Criminal Code should have applied in this instance.

Held: The appeal should be dismissed.

The question of the admissibility of evidence, and the question whether, once admitted in the record, such evidence has probative force, are two different matters, the first being a question of law left for the judge to decide and the second being a question of fact for the jury or the trier of facts, as the case may be. The statement complained of relates to the probative force of those admissions, i.e. to a question of fact which does not give this Court jurisdiction.

With regard to the presumption enacted by s. 376 of the Criminal Code, it does not apply here since the respondents held a fire insurance policy not relating to the building in respect of which the offence is alleged to have been committed but relating to certain personal property located in this building.

APPEAL from a judgment of the Court of

[Page 748]

Queen’s Bench, Appeal Side, Province of Quebec[1], affirming a judgment of acquittal of the Court of the Sessions of the Peace. Appeal dismissed.

F. Tremblay, for the plaintiff, appellant.

René Letarte and Louise Simard, for the defendants, respondents.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—At the conclusion of their separate trials in the Court of the Sessions of the Peace the two Drouin brothers were acquitted on charges of having wilfully set fire to a building, the property of Laurent Veilleux, and of having conspired together for this purpose.

The Crown appealed in each case. In both cases, the appeal was dismissed by a unanimous decision of the Court of Appeal[2].

Hence the appeal to this Court.

It is appellant’s contention that the Court of Appeal erred in law (i) when it failed to hold that the trial judge had erroneously discarded the statements made by the Drouin brothers under oath at the hearing held before the Fire Commissioner, and (ii) in holding that the presumption established by s. 376 of the Criminal Code did not apply in this instance.

Regarding the first ground of appeal, the trial judge in the course of the hearing, without proceeding to hold a voir dire, and over the defence’s objections, admitted in evidence the stenographic report of the admissions made by the Drouin brothers under oath before the Fire Commissioner. On the other hand, in the judgment of acquittal the judge stated:

[TRANSLATION] I must therefore disregard all admissions made by the accused before the Fire Commissioner, because they do not meet the requirements of a free, conscious and voluntary statement.

[Page 749]

According to the interpretation placed on it by the Crown, this statement means that the judge repudiated the judgment given by him on the admissibility of the admissions made before the Fire Commissioner, and that in so disregarding these admissions, which are judicial in nature, he applied criteria appropriate to the admissibility of confessions. Accordingly, it is said, the trial judge apparently failed to observe the principle invariably applied since the decision of the Judicial Committee of the Privy Council in The Queen v. Coote[3], to the effect that statements made by a person under compulsion of law are not, merely by virtue of such compulsion, inadmissible in a criminal proceeding implicating that person. Cf. Walker v. The King[4]; Tass v. The King[5]; The King v. Mazerall[6]. The Court of Appeal correctly refused to accept this interpretation. The question of the admissibility of evidence, and the question whether, once admitted in the record, such evidence has probative force, are two different matters; the first is a question of law left for the judge to decide, and the second is a question of fact for the jury or the trier of facts, as the case may be. In my view it cannot be contended that the principle laid down in The Queen v. Coote (supra)—in which, precisely, the validity of the admission of the statements made before the Fire Commissioner was challenged—was misunderstood by the judge. The fact that he admitted the statements over the defence’s objections, without conducting a voir dire, is sufficient proof of this. Further, it is clear that, placed in the context of the judgment, the statement complained of relates not to the admissibility, but to the probative force of those admissions, and this is not a question of law giving us jurisdiction, but a pure question of fact. I would therefore dismiss this ground of appeal as unfounded.

With regard to the second ground of appeal, s. 376 of the Criminal Code, which is in substantially the same form at the present time as it was when the offence was committed, provides:

[Page 750]

376. Where a person is charged with an offence under section 374 or 375, evidence that he is the holder of or is named as the beneficiary under a policy of fire insurance relating to the property in respect of which the offence is alleged to have been committed is, in the absence of any evidence to the contrary and where intent to defraud is material, proof of intent to defraud.

In the case at bar the respondents were charged with an offence covered by s. 374(1)(a), namely, of having wilfully set fire to a building, and not to personal property as described in subsection (2) of that section. In dismissing the second ground of appeal, therefore, it is sufficient to note that, although they held a fire insurance policy relating to certain personal property located in the building, the accused were neither holders nor beneficiaries under such a policy relating to the building in respect of which the offence is alleged to have been committed. The Court of Appeal therefore correctly found that the legal presumption enacted by s. 376 of the Criminal Code does not apply here.

For these reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitor for the plaintiff, appellant: Louis Carrier, Quebec.

Solicitors for the defendants, respondants: Letarte & St-Hilaire, Quebec.