R. v. Caouette, [1973] SCR 859

Supreme Court of Canada

R. v. Caouette, [1973] S.C.R. 859

Date: 1972-12-22

Her Majesty The Queen (Plaintiff) Appellant;

and

Jean Caouette (Defendant) Respondent.

1972: February 18; 1972: December 22.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.

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

Criminal law—Conspiracy to burglarize—Murder—Weapon jointly owned by the parties to this crime—Guilty knowledge of the accused that his accomplice was armed—Dissent in the Court of Appeal on a question of law or of fact—Absence or insufficiency of the evidence supporting a conviction—Power of the Court of Appeal to allow an appeal from conviction—Jurisdiction in the Supreme Court of Canada on a question of Law—Criminal Code, 1953-54 (Can.), c. 51, ss. 21, 202, 592 and 598.

Respondent was charged and convicted of murder in having unlawfully caused the death of B after having conspired with D and L to burglarize the residence of G who operated a grocery store and brought with her to her residence the money she had taken in during the day. The murder was committed when D broke into B’s residence which he thought was G’s house, armed with a weapon which he jointly owned with the respondent, while the latter was waiting with L in a stolen car. The three accomplices were arrested.

The Court of Appeal quashed the conviction and acquitted the respondent. The Crown entered an appeal de plano to this Court based on the dissent in the Court of Appeal and subsequently obtained leave to appeal on any question of law. It was the respondent’s contention that this Court was without jurisdiction to review the judgment a quo since there was no question of law on which a judge of the Court of Appeal dissented.

Held (Martland, Hall, Spence and Laskin JJ. dissenting): The appeal should be allowed and the conviction at trial restored.

Per Fauteux C.J. and Abbott, Judson and Pigeon JJ.: The respondent’s case is governed by the provisions of ss. 21 and 202 of the Criminal Code. It can be

[Page 860]

reasonably deduced from the proven facts, which moreover were not disputed or explained by him or anyone else, that the respondent knew or ought to have known, not only that D would have with him and would use if needed the weapon owned jointly by them, while or at the time he would be committing or attempting to commit the theft, or during or at the time of his flight after committing or attempting to commit such theft, but also that the respondent knew or ought to have known that if the need arose D would cause bodily harm by whatever means he could in order to facilitate the commission of the theft or his flight.

The views expressed by the judges of the Court of Appeal on the question of the absence of the evidence, on which they were devided, are in clear language. There is no necessity to interpret these words, which must be given the ordinary meaning and purport conveyed by them. The absence of evidence is a question of law. There is, therefore, a dissent giving this Court jurisdiction under the provisions of s. 598(1)(a) of the Criminal Code as well as s. 598(1)(b) since leave to appeal on any question of law was granted by the Supreme Court of Canada to the appellant. Furthermore there was a failure to consider whether the evidence permitted the jurors to find that the respondent knew or ought to have known that his accomplice would resort to violence and cause bodily harm in order to facilitate the execution of their common purpose, and this failure impairs in law the legal basis of the operative part of the judgment a quo.

Per Ritchie J.: It appears that there is some evidence to implicate the respondent so as to make him a party to the crime of murder within the meaning of ss. 21 and 202 of the Criminal Code.

Per Hall and Spence JJ., dissenting: The Court of Appeal did not consider that the appeal fell to be determined upon the question of whether there was any evidence to support the conviction but rather whether there was sufficient evidence to support the conviction. The right of the Crown to appeal to this Court under s. 598(1)(a) or under s. 598(1)(b) is upon a question of law, and the sufficiency of the evidence upon which it is sought to support the verdict is a question of fact or at the least a question of mixed law and fact on which this Court is without jurisdiction.

Per Martland J., dissenting: This Court cannot, by giving leave to appeal, acquire jurisdiction to deal with the sufficiency of the evidence in a case in which the Court of Appeal has itself reached the

[Page 861]

conclusion that the evidence was not sufficient to support the conviction.

Per Laskin J., dissenting: The dissent on a question of law need not be a dissent on which there was a difference of opinion between the dissenting judge or judges and those in the majority. It is enough if the dissent is on a question of law that goes to the merits of the case and consequently to the decision therein. There is nothing in either set of dissenting reasons that raises a question of law alone that would go to the correctness of the acquittal.

Counsel for the Crown alleges that the judges of the Court of Appeal erred in law in the application of the cases in their judgment. Only one issue, that of guilty knowledge, was the focus of all the opinions in the Court of Appeal. What Montgomery J. said about knowledge or attributed knowledge of murder does not raise any error of law which goes to the validity of the acquittal. The adverse conclusion on this issue by the judges in the majority made any consequential issue touched upon in their reasons immaterial.

As to the error of law alleged about the question relating to the change of intention on the part of the respondent and his accomplice to break and enter a house that they found was then occupied instead of one that was not, there is no basis for saying that the Court of Appeal made any determination on this question adverse to the contention of the Crown.

Finally the Crown contends that the judges of the Court of Appeal erred in law in holding that there was no evidence to go to the jury. The Criminal Code empowered that Court to allow an appeal from conviction when it was of opinion that “the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence”. The relevant inquiry here is whether the reasons of the Appellate Court disclose a question of law upon which this Court may entertain the appeal thereto. The fact that an appellate judge decides that there was no evidence from the mouth of a particular witness on an issue in the case does not alone raise a question of law. It is nowhere said that the Crown had failed to make out a case to go to the jury. The members of the majority in the Court of Appeal dealt with the same determining issue and with the evidence thereon as representing a continuum. Where one of the grounds of decision of the Provincial

[Page 862]

Appellate Court is founded on the insufficiency of the evidence, thus excluding any appellate jurisdiction in the Court, the giving of another reason upon which jurisdiction could otherwise be founded will not support its exercise.

APPEAL from a judgment of the Court of Queen’s Bench[1], Appeal Side, Province of Quebec, quashing a conviction of the respondent on a charge of non-capital murder. Appeal allowed and conviction upon the verdict of the jury restored, Martland, Hall, Spence and Laskin JJ. dissenting.

François Tremblay, for the plaintiff, appellant.

Jacques Bouchard, for the defendant, respondent.

The judgment of Fauteux C.J. and Abbott, Judson and Pigeon JJ. was delivered by

THE CHIEF JUSTICE—Respondent was charged and convicted in a jury trial presided over by Mr. Justice Antoine Lacoursière of having, on or about Nóvember 9, 1968, in the City and District of Quebec, unlawfully caused the death of Albert Burran, thereby committing murder.

He appealed from this conviction. By a majority judgment, the Court of Appeal, then composed of Tremblay C.J., and Casey, Taschereau, Montgomery and Rivard JJ.A., allowed the appeal, quashed the conviction and acquitted the accused.

From that decision appellant entered an appeal de plano to this Court based on the dissenting opinion of Casey and Taschereau JJ.A., and subsequently obtained leave to appeal on any question of law.

The underlying facts established by the evidence introduced by the prosecution are as follows. On November 8, 1968, respondent Jean Caouette, Denis Daigle and Diane Lessard all met in a room of a motel situated in a suburb of Quebec City. The room had been taken by

[Page 863]

Caouette, who registered under a false name and gave a fictitious registration number for the automobile used. Caouette had known Daigle for several years and was also acquainted with Diane Lessard. At the time in question the three were engaged in conspiring to burglarize the residence of one Thérèse Grondin, who was known to Caouette and Diane Lessard. Caouette and Diane Lessard both knew that when Thérèse Grondin left the grocery she operated on rue d’Aiguillon at between 10:30 and 11:30 P.M., she brought with her to the rue de Repentigny the money she had taken in during the day. On Friday, November 8, Caouette and Daigle, intending to commit the proposed crime that evening and using a stolen car for the purpose, followed Miss Grondin from her place of business to her residence. However, the plan was not carried out that evening because Daigle did not have sufficient information to penetrate into the house. The next day, Saturday, November 9, at about 7:30 P.M., the three accomplices, using a different car this time, headed for Miss Grondin’s house to put their plan into execution. It had been agreed that Daigle would be the one to break into the house. When they arrived at the house which they thought was that of Miss Grondin, but in reality was the adjoining house occupied by Albert Burran, Daigle got out of the car and rang at the front door. According to his testimony, this is what happened:

[TRANSLATION] Q. Then, when you got there, what did you do when you got there?

A. To make sure, we… I got out of the car, then I rang to make sure there was no one in the house, inside.

Q. And then?

A. Then, a man spoke to me, answered me, in the house.

Q. And?

A. So we couldn’t know if it was her parents…

According to the evidence the man in question was Burran. The testimony goes on:

[Page 864]

[TRANSLATION]…

Q. And while you were ringing at the door, where was Jean Caouette?

A. In the front, at the door, in the front, near the sidewalk.

(The italics are mine.)

To explain his visit to the house Daigle then asked Burran for someone whose name he made up. When the latter told him there was no person there by that name, he left and rejoined his companions. Caouette and Daigle were thus able to see that the house was not empty. After driving round the neighborhood in the car for about three-quarters of an hour, the three conspirators came back to the same house. Daigle got out of the car and entered by forcing a window on the upper floor. While this was going on the two others acted as lookouts, driving around the block and preparing to pick up their confederate at the proper moment. Having searched the upper floor of the house and found no money, Daigle decided to go downstairs. At this point he took out of his belt a sawed-off 22-calibre rifle, which was loaded, and went down the stairs carrying the weapon. As he reached the lower landing a tile creaked under his foot; he stopped for a moment, moved along a little adjoining passage, and suddenly found himself face to face with the occupant, Mr. Burran, who tried to defend himself. Daigle wounded him several times, hit him several times on the head with his rifle butt, and Burran, who received a 22-calibre bullet in his abdomen, died a few days later. Having managed to get away, Daigle fled to rejoin Caouette. Daigle described the conversation he had with the latter once he was in the car as follows:

[TRANSLATION] Q. And then, did you speak to Caouette, was anything said between Caouette and yourself?

A. I think that, a bit later, I told him the man had been wounded.

(The italics are mine.)

[Page 865]

The man referred to by Daigle was obviously Burran, whom he and Caouette had just seen when he rang at the door.

Caouette, Daigle and Diane Lessard returned to the motel. The following Monday, November 11, officers of the Quebec Provincial Police went to the motel, where they arrested the three accomplices and found among Caouette’s effects a box of 22-calibre bullets—the same calibre as the weapon used in the crime, which Daigle had abandoned at the victim’s residence. This weapon was jointly owned by Caouette and Daigle.

These are the underlying facts established by the evidence. Caouette did not testify and called no witnesses in his defence.

In law:—

The following provisions of s. 202 apply here:

202. Culpable homocide is murder where a person causes the death of a human being while committing or attempting to commit… robbery, burglary… whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if

(a) he means to cause bodily harm for the purpose of

(i) facilitating the commission of the offence, or

(ii) facilitating his flight after committing or attempting to commit the offence,

and the death ensues from the bodily harm;

…

(d) he uses a weapon or has it upon his person

(i) during or at the time he commits or attempts to commit the offence, or

(ii) during or at the time of his flight after committing or attempting to commit the offence,

and the death ensues as a consequence.

It is not disputed that Daigle committed the offence of murder. This is proved by his own testimony. He had a loaded, sawed-off weapon on his person. He took it out and had it in his hand as he went down the stairs. He inflicted bodily harm on Burran and used this weapon to rid himself of the obstacle which the latter pre-

[Page 866]

sented to committing theft or to his flight. So, according to his own testimony, he committed murder as defined in paragraph (a) of s. 202, and also as defined in paragraph (d) of the said section.

Caouette’s case is governed by the provisions of s. 202 and of the second subsection of s. 21, which enacts that:

21. (1) …

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

(The italics are mine.)

In The Queen v. Trinneer[2] this Court ruled on the meaning of s. 21(2) in the case of a murder charge based on s. 202. Speaking for all members of this Court, Cartwright C.J. said, at pp. 644 and 645:

If the respondent ought to have known that it was probable that bodily harm would be inflicted on the deceased to facilitate the carrying out of the robbery, then it was unnecessary for the Crown to establish that he ought to have foreseen that her death was likely to result. The offence contemplated by s. 21(2) (that is murder as defined in s. 202(a) and/or (d)) was committed when Frank inflicted the bodily harm on the deceased for the purpose of facilitating the robbery or flight. Its character was determined when her death ensued.

In the case at bar the jury, therefore, had to decide whether they could reasonably deduce from the proven facts, which moreover were not disputed or explained by him or anyone else, that Caouette knew or ought to have known, not only that Daigle would have with him and would use if needed the weapon owned jointly by them, while or at the time he would be committing or attempting to commit the theft, or during or at the time of his flight after committing or attempting to commit such theft,

[Page 867]

but also that Caouette knew or ought to have known that if the need arose Daigle would cause bodily harm by whatever means he could in order to facilitate the commission of this theft or his flight.

It surely is realistic for a jury to invest the association of Daigle and Caouette with the incriminating quality which is implied by their joint ownership of this sawed-off weapon in the circumstances, and to conclude that it was not without the knowledge of his accomplice but with the latter’s consent that Daigle had carried on his person for the execution of their common purpose the said weapon, loaded with bullets of the same calibre as those found among Caouette’s personal effects, and that the latter in any case knew or ought to have known that if the need arose Daigle would resort to violence to facilitate his flight.

So I would say, with all respect for the contrary opinion, that an affirmative reply to the above questions is not only reasonable but necessary, and that the verdict reached by the jury is fully justified.

Further, in my opinion the contention by respondent that there is no question of law on which a judge of the Court of Appeal dissents, and that this Court is accordingly without jurisdiction to review the judgment a quo, cannot be entertained.

I would observe, first, that the question on which the judges of the Court of Appeal were divided was the absence, not the sufficiency, of the evidence concerning whether Caouette knew that Daigle was armed. The judges of the majority clearly stated that there was no evidence to indicate such knowledge, while the minority judges expressed the contrary view, and would have dismissed the appeal and affirmed the jury verdict. This can be seen from the following passages in the reasons of Mr. Justice Rivard—concurred in by Chief Justice Tremblay—and from the reasons of Mr. Justice Montgomery, who stated his own views. Referring to Daigle’s testimony, Mr. Justice Rivard said:

[Page 868]

[TRANSLATION] I have read his testimony several times, and the learned defence counsel is correct in stating that nothing in his replies can lead to the conclusion that Caouette knew Daigle was armed.

…

But nothing in the evidence indicates that Caouette knew that Daigle had loaded the weapon in question, or had brought bullets with him.

Mr. Justice Montgomery, after saying at the beginning of his reasons that “I agree with my colleague Mr. Justice Rivard that we should maintain this appeal”—referring by this to the conclusion, and not the reasons, put forward by his colleague—concludes by saying:

In my opinion, there was no evidence of knowledge to go before the jury. I therefore agree that we should maintain the appeal and acquit Appellant.

(The italics are mine.)

These views expressed by Mr. Justice Rivard, and certainly those expressed by Mr. Justice Montgomery, are in clear language. There is no necessity to interpret these words, which must be given the ordinary meaning and purport conveyed by them. It is not necessary to cite authorities in order to reiterate that the absence of evidence is a question of law. There is, therefore, a dissent giving this Court jurisdiction under the provisions of s. 598(1)(a) of the Criminal Code:

598. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 583 or 583A or dismisses an appeal taken pursuant to paragraph (a) of subsection (1) or subsection (3) 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

To the foregoing it must be added that this Court also has jurisdiction by virtue of the following provisions of s. 598(1)(b) of the Criminal Code:

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada…

[Page 869]

As already indicated, appellant was granted leave to appeal on any question of law. The evidence in the record required that the Court of Appeal consider the application of the provisions of para. (a) of s. 202, which describe another mode whereby the offence in question may be committed, as well as the application of the provisions of para. (d) of the same section. Accordingly, even if the opinion of the Court was that there was an absence or insufficiency of evidence as to whether Caouette knew that Daigle was armed, it could not set aside the jury verdict and acquit the respondent before considering whether the evidence permitted the jurors to find—as their verdict implied—that Caouette knew or ought to have known that his accomplice would resort to violence if the need arose and cause bodily harm, by whatever means he could, in order to facilitate the execution of their common purpose, or at least to facilitate his flight after committing or attempting to commit this robbery. There was a failure to consider such a question, and this failure impairs in law the legal basis of the operative part of the judgment a quo.

For these reasons, I would allow the appeal and set aside the judgment of the Court of Appeal and, concluding that the grounds raised by respondent in the Court of Appeal, which were virtually not pleaded by him in this Court, are unfounded, in accord with Casey and Taschereau JJ.A., I would restore the verdict of the jury, just as our authority to do so was especially recognized in Her Majesty the Queen v. McKay[3]; Her Majesty the Queen v. Borg[4].

MARTLAND J. (dissenting)—I am in agreement with the reasons of my brother Spence, and wish only to add the following additional comments.

In order that the respondent should be convicted of non-capital murder by virtue of the provisions of s. 21(2) of the Criminal Code it was necessary for the Crown to establish,

[Page 870]

beyond reasonable doubt, that the respondent knew or ought to have known that the commission of the offence of murder would be a probable consequence of Daigle’s carrying out the common purpose of burglary. The offence of murder was committed by Daigle by reason of the application, to the facts of this case, of s. 202 (now s. 213) (a) and (d) of the Criminal Code, which provides:

213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit treason or an offence mentioned in section 52, piracy, escape or rescue from prison or lawful custody, resisting lawful arrest, rape, indecent assault, forcible abduction, robbery, burglary or arson, whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if

(a) he means to cause bodily harm for the purpose of

(i) facilitating the commission of the offence, or

(ii) facilitating his flight after committing or attempting to commit the offence,

and the death ensues from the bodily harm;

…

(d) he uses a weapon or has it upon his person

(i) during or at the time he commits or attempts to commit the offence, or

(ii) during or at the time of his flight after committing or attempting to commit the offence,

and the death ensues as a consequence.

On the facts of this case the bodily harm, which caused death, resulted from the use, by Daigle, of the weapon which he had upon his person. In determining the criminal responsibility of the respondent under s. 21(1) of the Criminal Code, the learned trial judge was of the view that the vital issue was as to whether he knew, or should have known, that Daigle was armed with the weapon when he entered the house so as to commit the offence of burglary. In his address to the jury he said:

[TRANSLATION] And to that end, of course, there is one question to ask yourselves, the very important question, which is, from my point of view, the most

[Page 871]

important question in order to be able to render your verdict: did Caouette know, or ought he to have known, that Daigle had a weapon when he entered the house? Because it is evident that if he had not known that Daigle had a weapon, we cannot say that he ought to have found it probable that the death of a person could ensue.

Again, after dealing with the matter of direct and circumstantial evidence, he said:

[TRANSLATION] Is it reasonable to believe that he did not know that Daigle was armed when he entered the Burran house? That is the question, and you must be able to answer it, in order to find the accused guilty, be able to answer it, beyond any reasonable doubt. This leads me to speak to you about reasonable doubt.

In the light of this charge it is clear that, in finding the respondent guilty of non-capital murder, the jury felt satisfied, beyond a reasonable doubt, that the respondent knew, or should have known, that Daigle was armed when he broke into the house.

The Court of Appeal had the power, under s. 592 (now s. 613), on the respondent’s appeal from his conviction, to allow the appeal if it was of the opinion that the verdict should be set aside on the ground that it could not be supported by the evidence. The Court addressed itself to the issue which had been put to the jury and considered whether a finding that the respondent knew, or should have known, that Daigle was armed when he entered the house could be supported by the evidence. The majority held that it could not be supported.

Rivard J.A. considered the direct evidence of Daigle and of the police, and said:

[TRANSLATION] I have read and reread his testimony, and the learned defence counsel is correct in stating that nothing in the answers which he has given can permit the conclusion that Caouette knew Daigle was armed.

…

It is true to say that the police officers’ testimony stated that they found one or two boxes of bullets in motel No. 15, among Caouette’s effects (J.R. p. 129). But nothing in the evidence indicates that Caouette

[Page 872]

knew that Daigle had loaded the weapon in question, or had brought the bullets with him.

He then went on to deal with the circumstantial evidence, and said this:

[TRANSLATION] In order to establish the essential element in Caouette’s guilt we have, in all, only circumstantial evidence which, in accordance with the well-known rules, can only result in a verdict of guilty if no other conclusion than that of appellant’s guilt is possible.

I do not think that the Crown’s evidence meets these requirements. In order to find a person guilty of a crime committed by another, it is essential that all conditions prescribed by law be met.

His conclusion is as follows:

[TRANSLATION] The association of Daigle, Diane Lessard and Caouette establishes beyond any doubt their intent to commit the crime of breaking and entering with intent to commit theft. Their behavior before the crime and in the days that followed can be explained without the necessity of finding that Caouette knew, or ought to have known, that in breaking into Miss Grondin’s residence in her absence it was probable that violence would be used and someone killed or wounded.

For this reason I would allow the appeal and acquit the appellant.

Montgomery J.A. reached a like conclusion and said this:

To find Appellant guilty of murder, the Crown had to establish beyond a reasonable doubt that he knew or ought to have known that the commission of the offense of murder would be a probable consequence of carrying out the common purpose of breaking and entering (subsec. (2) of sec. 21. Crim. Code). I see no reason to suppose that he ought to have known this to be a probable consequence unless he knew that Daigle was armed. Of this, there is no direct evidence. The Crown had in Daigle a witness who appears to have been frank and cooperative, yet no questions were put to him to establish knowledge on Appellant’s part that Daigle was carrying a firearm. All that we have is Daigle’s testimony that the weapon was their joint property and evidence that the bullets, which Daigle had procured, were found two days later among Appellant’s effects in the motel room occupied by both of them. These circumstances

[Page 873]

may give rise to suspicion, but I do not find that they amount to proof.

In my opinion, there was no evidence of knowledge to go before the jury. I therefore agree that we should maintain the appeal and acquit Appellant.

Chief Justice Tremblay agreed with Rivard J.A. Casey J.A. and Taschereau J.A. dealt with exactly the same issue and reached the opposite conclusion; i.e., that there was sufficient evidence to find that the respondent knew, or should have known, that Daigle was armed when he entered the house.

In these circumstances it is my opinion that the Court of Appeal has reached a decision which is not subject to appeal to this Court. Admittedly, Montgomery J.A. made the statement that “there was no evidence of knowledge to go before the jury”, but, in my opinion, a decision by a judge of the Court of Appeal, on an appeal by the accused from a conviction, that there is no evidence to go to the jury must, of necessity, mean also that he has concluded that the verdict of the jury cannot be supported by the evidence. It is true that a finding of no evidence is a finding on a question of law, which might be a basis for an appeal, but a finding as to sufficiency of evidence is a finding of fact, or of mixed law and fact, which cannot be appealed to this Court.

The case of The Queen v. Warner[5], decided that a finding as to insufficiency of evidence by a Court of Appeal, on an appeal from conviction, is a finding of fact, or of mixed law and fact, and is not subject to appeal to this Court. It was also decided that, where such a finding had been made, it was of no consequence that other

[Page 874]

grounds on which the Court of Appeal has proceeded did raise questions of law.

If it is to be held that, because one of the judges forming the majority stated that there was no evidence to go before the jury, a question of law is raised which may be brought before this Court, the situation which results is anomalous. The question of law is: “Was there evidence to go to the jury?” The answer to this issue is that either there was evidence, or there was not. If the former conclusion is reached, it is then necessary, before restoring the conviction, to find that there was sufficient evidence to support it. But the question of sufficiency of evidence is, by virtue of s. 613 of the Code, a matter for the determination of the Court of Appeal.

That was the very issue which was considered by the Court of Appeal in this case. The two dissenting judges disagreed with the majority on that specific issue. For that reason, this case differs from The Queen v. McKay[6]. In that case the Crown had an appeal as of right, because the dissenting judge in the Court of Appeal had dissented on a question of law from the majority, which had held that there was no evidence implicating the accused to go to the jury. It was held, in this Court, that the dissenting judge was right, and that this Court, being seized of the appeal, could direct the remedy which the Court of Appeal should have granted; namely, to restore the conviction.

In the present case, in my opinion, there was no appeal as of right, because there was no dissent on a question of law. Leave to appeal was given, but, in my view, this Court cannot, by giving leave to appeal, acquire jurisdiction to deal with the sufficiency of the evidence in a case in which the Court of Appeal has itself reached the conclusion that the evidence was not sufficient to support the conviction. That

[Page 875]

was the situation in the Warner case. Leave to appeal had been given, but this Court later held, on hearing the appeal, that the finding of the Appellate Division that the evidence was not sufficient to support the conviction was not subject to any appeal to this Court, and the appeal was dismissed.

In my opinion, following the Warner case, the Court of Appeal having reached a conclusion on a question of fact, or of mixed law and fact, there is no appeal to this Court, unless it could be shown that, in reaching its conclusion, the Court of Appeal had done so because of an error as to the law. In the present case, in my opinion, Montgomery J.A. correctly defined what, in law, had to be established to find the respondent guilty of non‑capital murder in the light of the decision of this Court in The Queen v. Trinneer[7]. Rivard J.A. expressly referred to that case and, in my opinion, correctly stated its application.

I would dismiss the appeal.

RITCHIE J.—Accepting as I do the interpretation which the Chief Justice of this Court has placed upon the language used by Mr. Justice Rivard in the Court of Appeal with which Chief Justice Tremblay concurred, and having regard to the opinion expressed by Montgomery J.A., I feel bound to conclude that the majority of the Court of Appeal allowed the appeal of the respondent on the ground that there was no evidence to so implicate Caouette as to make him a party to the crime of murder within the meaning of ss. 21 and 202 of the Criminal Code as those sections have been interpreted in this Court in The Queen v. Trinneer[8].

As it appears to me that there is at least some such evidence, I would dispose of the matter in the manner proposed by the Chief Justice.

[Page 876]

The judgment of Hall and Spence JJ. was delivered by

SPENCE J. (dissenting)—This is an appeal by the Crown from the judgment of the Court of Appeal for Quebec pronounced on January 14, 1971, in which that Court by a majority judgment allowed an appeal by the respondent from his conviction in the Court of Queen’s Bench on May 26, 1969, upon a charge of non-capital murder. The respondent had filed an appeal to that Court as of right and had in the same document applied for leave to appeal upon questions of fact. Paragraph 8 of that document which, as I have said, was both a notice of appeal and application for leave to appeal, read as follows:

[TRANSLATION]—The proof of prosecution is insufficient to justify the verdict of guilty and the gaps which are present therein are such that the said judgment is unreasonable in fact as in law.

The Crown alleged that the respondent had conspired with one Denis Daigle and Diane Lessard to break into the home of a Miss Thérèse Grondin and steal therefrom the receipts from a grocery store business which they believed she had brought to her home the previous evening. The respondent drove Daigle to the residence in which the conspirators resided and Daigle broke into that residence through a second storey window, searched for the money and, not finding it, started to descend a stairway. There Daigle met Colonel Burran, into whose home he had broken in error, a tussle ensued and Daigle withdrew a sawed-off 22 rifle from his belt and shot Colonel Burran inflicting wounds from which the latter died. Therefore it became vital in applying s. 202 and s. 21(2) to determine whether the respondent knew or ought to have known that the commission of the offence of non-capital murder would be a probable consequence of the carrying out of the burglary. This the Court of Appeal for Quebec found hinged on whether the respondent knew that Daigle was armed when the latter broke into this home. Mr. Justice Casey and Mr. Justice Taschereau gave reasons to dismiss the appeal of the now

[Page 877]

respondent Caouette. Mr. Justice Rivard, with whom the Chief Justice concurred, gave reasons for allowing the appeal. Mr. Justice Montgomery concurred in this latter view and added further reasons to allow the appeal.

Although the dissent upon a question of law, upon which the Crown’s right to appeal to this Court without leave rests, under the provisions of s. 598(1)(a), now R.S.C. 1970, c. C-34, s. 621(1)(a), of the Criminal Code, must be found in the dissenting reasons of either Casey or Taschereau JJ. A. I turn first to consider the reasons given on behalf of the majority as the Crown obtained leave to appeal to this Court “de bene esse”.

Rivard J.A. in his reasons said:

[TRANSLATION] The first ground of appeal relied on by appellant against this verdict is that the evidence submitted by the Crown cannot reasonably justify or support the verdict of guilty pronounced against appellant.

And thereafter in his reasons he said:

[TRANSLATION] Appellant submits that there is no evidence on record from which it could reasonably be deduced that, in carrying out the unlawful purpose of their mutual assistance for breaking into and stealing, Caouette knew or ought to have known that the result of carrying out the common intent, i.e. breaking and entering with theft, in Miss Grondin’s uninhabited house, would be the use of violence against some person.

The evidence as to the commission of the offence is based almost exclusively on the testimony of Denis Daigle, Caouette’s accomplice for committing the offence of breaking and entering with theft. He claims that the weapon used was owned by Caouette and himself; but nowhere does he say that Caouette knew that he was carrying this weapon when the crime was committed, or when it was being planned.

I have read his testimony several times, and the learned defence counsel is correct in stating that nothing in his replies can lead to the conclusion that Caouette knew Daigle was armed.

The weapon, which was discovered broken in the Burran residence, is not very large. In fact, Daigle carried it in his belt to shoot Burran.

[Page 878]

It is true to say that the police officers’ testimony stated that they found one or two boxes of bullets in motel No. 15, among Caouette’s effects (J.R. p. 129). But nothing in the evidence indicates that Caouette knew that Daigle had loaded the weapon in question, or had brought bullets with him.

In order to establish the essential element in Caouette’s guilt we have, in short, only circumstantial evidence which, in accordance with well-known rules, can only result in a verdict of guilty if no other conclusion than that of appellant’s guilt is possible.

I do not think the Crown’s evidence meets these requirements. In finding a person guilty of a crime committed by another, it is essential that all conditions prescribed by law be met.

He concluded:

[TRANSLATION] The association of Daigle, Diane Lessard and Caouette establishes beyond any doubt their intent to commit the crime of breaking and entering with theft. Their behaviour before the crime and in the days that followed can be explained without the necessity of finding that Caouette knew, or ought to have known, that by breaking into Miss Grondin’s residence in her absence it was probable that violence would be used and someone killed or wounded.

For this reason I would allow the appeal and acquit the appellant.

In none of these excerpts does Rivard J. advance the proposition that there was no evidence to support the conviction. On the other hand, in all of them the learned justice of appeal is discussing the sufficiency of the evidence.

Montgomery J.A. in his brief concurring reasons refers to evidence which had been advanced as indicating that the respondent knew Daigle was armed and concludes:

These circumstances may give rise to suspicion, but I do not find that they amount to proof.

Despite Montgomery J.A.’s concluding words,

In my opinion, there was no evidence of knowledge to go before the jury.

[Page 879]

(The emphasis is my own.)

I am of the opinion that in those reasons he, as did Rivard J., engaged in the task of determining whether the evidence was sufficient to support the verdict.

Casey J.A., again in brief reasons, also referred to the facts advanced by the Crown to support the submission that the respondent knew Daigle was armed and accepted them as having such probative force. In my view, this is plainly a weighing of the sufficiency of the evidence. Taschereau J.A. followed a course almost exactly the same as that followed by Casey J.

I, therefore, have come to the conclusion that all five of the learned justices of appeal did not consider that the appeal fell to be determined upon the question of whether there was any evidence to support the conviction but rather whether was sufficient evidence to support the conviction, a course which lay open to them under the provisions of s. 592(1)(a)(i), (now R.S.C. 1970, c. C-34, s. 613(1)(a)(i)) of the Criminal Code.

As I have pointed out, the right of the Crown to appeal to this Court under s. 598(1)(a) without leave upon a dissent or under s.598(1)(b) with leave is upon a question of law. The presence or absence of any evidence upon which a verdict may be supported is such a question of law. The sufficiency of the evidence upon which it is sought to support a verdict is not a question of law but one of fact or at the best a question of mixed law and fact. In The Queen v. Warner[9], this Court considered a case where the Chief Justice of the Court appealed from had said:

I am strongly of the opinion that the verdict of murder cannot be supported by the evidence. But I feel I must go further and set out other reasons for setting aside the verdict.

Kerwin C.J. said at p. 147:

[Page 880]

I read the first sentence as meaning that the Chief Justice considered that the evidence was not sufficient to support a conviction,—which is a question of fact…

While it was announced that we had jurisdiction, further consideration has persuaded the majority of the Court that such is not the case.

Cartwright J., as he then was, sait at pp. 149-150:

So far as the judgment of the Appellate Division is based on the first ground mentioned, this Court is powerless to interfere with it. The question whether the Appellate Division was right in proceeding on this ground is not a question of law in the strict sense. It is a question of fact or, at the best from the point of view of the appellant, a mixed question of fact and law.

…

On reading the reasons as a whole, I am satisfied that the Appellate Division was exercising its jurisdiction under s. 592(1)(a)(i) and was setting the verdict aside on the ground that, in its opinion, it could not be supported by the evidence.

Taschereau and Abbott JJ. agreed with both Kerwin C.J. and Cartwright J. Ritchie J., in giving concurring reasons, said at p. 162-3:

If the Appellate Division erred in finding that such a doubt existed, then this was an error of fact from which other errors necessarily flowed, including the finding that s. 202 was the only one under which the jury could have found the accused guilty of murder. The latter conclusion follows directly from the former, and, accordingly, in my view the error, if error it was, raises a mixed question of fact and law, and as such is not a competent ground of appeal to this Court (see The King v. Décary, [1942] S.C.R. 80 at 83, 2 D.L.R. 401.)

Therefore, I am of the opinion that in this appeal, as in The King v. Warner, the Crown seeks to appeal on a ground of fact or mixed law and fact.

I, therefore, would dismiss the appeal on the ground that this Court is without jurisdiction to consider it.

[Page 881]

LASKIN J. (dissenting)—The threshold question in this appeal by the Crown against the acquittal of the accused by the Quebec Court of Appeal of non-capital murder is the jurisdiction of this Court to entertain the appeal. The Quebec Court of Appeal, by a bare majority, set aside the conviction entered upon the verdict of a jury.

The Crown has asserted an appeal as of right under s.621(1)(a) of the Criminal Code, taking the position that the dissenting opinions of Casey and Taschereau JJ.A. raise questions of law within the meaning of that provision. Leave to appeal was also obtained under s.621(1)(b) “de bene esse on any question of law”. This leave, given so far as it may be required, must, in my understanding, be taken to relate to any question of law that goes to the validity of the verdict of acquittal; it cannot be construed to refer to a question of law whose correct resolution would not affect the result reached by the majority of the Quebec Court of Appeal. The unlimited character of the leave makes it necessary to determine what were the grounds upon which the Quebec Court of Appeal set aside the conviction herein and to consider the grounds urged in this Court against the acquittal; in this latter respect there is no restriction to the grounds upon which the Quebec Court of Appeal proceeded.

I deal first with the Crown’s assertion of an appeal as of right. I am prepared on this point to take the view of s.621(1)(a), expressed by Cartwright J., as he then was, in Rozon v. The King[10], that the dissent on a question of law need not be a dissent on which there was a difference of opinion between the dissenting judge or judges and those in the majority: see

[Page 882]

also Brown v. The Queen[11]. Taking this view, here in favour of the Crown, it is enough if the dissent is on a question of law that goes to the merits of the case and consequently to the decision therein. I am well aware of the line of cases in this Court, of which Pearson v. The Queen[12], illustrative, that support the position that the appeal as of right depends upon the dissent being upon a question of law which has been differently determined by the majority in the provincial appellate Court. They do not call for re-examination here because, on the more generous construction of s. 621(1)(a) which I would take, the dissents of Casey and Taschereau JJ.A. do not raise any determining question of law.

The appeal by the accused to the Quebec Court of Appeal was taken both as of right on questions of law and by leave on questions of mixed law and fact and on questions of fact alone. The issue that chiefly concerned all five members of that Court was whether there was evidence to support the conclusion beyond a reasonable doubt that the accused knew that his confederate Daigle was armed when the latter broke into the deceased’s home while the accused remained outside. Casey J.A. concluded (in his words) that “the known facts were compatible only with the conclusion that the appellant had guilty knowledge, that is, that he knew that Daigle was armed and that what happened would be a probable consequence of what they proposed to do”. This, to me, is simply a conclusion on the sufficiency of the evidence to meet the burden of proof resting upon the Crown, and suggesting in this connection reliance upon the circumstantial evidence formula of Hodge’s case. (I may say, parenthetically, that this intimation of reliance on Hodge’s case does not engage the propositions of this

[Page 883]

Court in Wild v. The Queen[13], which were addressed to oral reasons of a trial judge sitting without a jury.) It is a determination on the effect of the facts adduced in evidence or, at the most, one of mixed law and fact, which it was open to the Quebec Court of Appeal to make. A determination on these grounds is not, however, open to this Court.

Taschereau J.A. in his longer dissent, dwelling at greater length on the evidence, expressed his concurrence with Casey J.A. on the question whether the accused knew that Daigle was armed when he broke and entered the victim’s house. As clearly, if not more so than his colleague in dissent, Taschereau J.A. proceeded upon the sufficiency of the evidence. Since all the evidence which the two dissenting judges considered was before the jury, their dissents merely affirmed the jury’s appreciation thereof on the issue of guilty knowledge. Even on the hypothesis that the majority were wrong in setting aside the conviction, there is nothing in either set of dissenting reasons that raises a question of law alone that would go to the correctness of the acquittal.

This evaluation is amply supported by a consideration of the reasons of Rivard J.A. in whose opinion, as a member of the majority, Tremblay C.J.Q. concurred. What Rivard J.A. said, after a lengthy review of the evidence, was that on the key issue of guilty knowledge it did not go far enough to establish that the only reasonable conclusion therefrom was that the accused knew that Daigle was armed. Like his dissenting colleagues, Rivard J.A. did not find it necessary to consider any other grounds of appeal.

[Page 884]

In view of my conclusion that there was no dissent on a question of law alone, it remains to consider whether any relevant questions of law arise in the case under the grant of leave to appeal. It is in this connection that the reasons of Montgomery J.A., as a member of the majority favouring acquittal, become material. He also limited his reasons to the crucial issue of guilty knowledge that Daigle was armed, and ended his brief reference to the evidence with the following two sentences:

These circumstances may give rise to suspicion, but I do not find that they amount to proof.

In my opinion, there was no evidence of knowledge to go before the jury.

These sentences are capable of being understood to say that Montgomery J.A. was satisfied not only that the evidence of knowledge was deficient to establish it, but that there was none upon which it could be established. Accepting that a conclusion of no evidence raises a question of law, an error in that conclusion becomes immaterial if the judgment of Montgomery J.A. also supports the position of his colleagues of the majority that the evidence was insufficient to establish the fact to which it was addressed.

A clearer illustration of this result would be afforded if the “no evidence” position was taken in a case where there was a clear majority that proceeded upon the basis that there was evidence of the fact in issue but that it fell short of satisfying the burden of proof upon the Crown. To find, in such circumstances, that a judge was wrong in deciding that there was no evidence would be of no consequence when there was a majority finding on insufficiency of the evidence.

If the proper view of Montgomery J.A.’s reasons be that they admit of no other construction than that there was no evidence of guilty knowledge to go to the jury, that would raise a question of law alone; and if he is wrong in his

[Page 885]

assessment this becomes critical to the whole case in view of the equal division of the other four members of the Quebec Court of Appeal on whether the evidence was sufficient to support a conviction.

Counsel for the Crown in his submissions to this Court founded himself in part on such a reading of the reasons of Montgomery J.A. He alleged three errors of law as follows:

[TRANSLATION] 1. Did Tremblay, Montgomery and Rivard JJ.A. err in law in the interpretation and application of the provisions of sub-paragraph (i) of paragraph (a) of section 592 of the Criminal Code of Canada, in deciding as they did to assume the functions of the jury by considering facts which constituted the circumstantial evidence for the Crown? They held in consequence that the jury had returned a verdict which was “unreasonable and not supported by the evidence”.

2. Did Tremblay, Montgomery and Rivard JJ.A., in assuming the functions of the jury and interpreting the evidence as they did, err in law in the legal interpretation of sections 202 and 21(2) of the Criminal Code of Canada?

(a) By erroneously interpreting joint possession under section 3, subsection 4(b);

(b) By failing to interpret the change of intent by the accused Caouette, as indicated by the evidence, at the time when his accomplice Denis Daigle rang at the door to ascertain whether there was anyone in the victim’s house.

3. Did Tremblay, Montgomery and Rivard JJ.A. err in law in the application of the cases cited in their judgment?

I propose to deal with these matters in reverse order.

The third alleged error of law needs little comment. It is a contention of misapplying the authorities cited in the majority opinions. The only citations were in the reasons of Rivard J.A.; and the two cases he cited, namely, Regina v. Simmons and Lotharp[14], from which a passage on p. 130 was quoted, and The Queen v.

[Page 886]

Trinneer[15], were used to support his conclusion, previously reached, that before a person may be found guilty of a crime actually committed by another, all the elements of culpable complicity must be established by evidence reaching the required standard of proof. The cases were not cited in connection with any consideration of the elements of constructive murder. As already noted, only one issue, that of guilty knowledge, was the focus of all the opinions in the Quebec Court of Appeal. I cannot find in this third contention any error of law within s.621(1)(b).

Crown counsel expanded his attack on the alleged misapplication of cited cases by drawing attention to an alleged error of law in the following passage of the reasons of Montgomery J.A., as being a departure from the rule of law laid down by this Court in The Queen v. Trinneer, supra (which Montgomery J.A. did not cite):

To find appellant guilty of murder, the Crown had to prove beyond a reasonable doubt that he knew or ought to have known that the commission of the offence of murder would be a probable consequence of carrying out the common purpose of breaking and entering… I see no reason to suppose that he ought to have known this to be a probable consequence unless he knew that Daigle was armed.

What Montgomery J.A. said about knowledge or attributed knowledge of murder as a probable consequence of the breaking and entering does not raise any error of law which goes to the validity of the acquittal. The point at issue in the reasons of the Quebec Court of Appeal was whether the accused knew that Daigle was armed. It is only after this issue was properly determined that the further question mentioned

[Page 887]

by Montgomery J.A. would become material. Since, in the view of all judges in the Quebec Court of Appeal the central question was guilty knowledge that Daigle was armed, the adverse conclusion on this issue by the majority made any consequential issue touched upon in their reasons immaterial.

The second alleged error of law is in part a return to the question of evidence or no evidence that the accused knew that Daigle was armed and in part a submission of a change of intention on the part of the accused and Daigle to break and enter a house that they found was then occupied instead of one that was not. In this latter respect, the contention appeared to be that the infliction of bodily harm would probably result and hence the accused, as a confederate of Daigle, would be guilty of murder under the principle laid down in The Queen v. Trinneer. For reasons already given, this latter point does not go to the validity of the acquittal. There is, indeed, no basis for saying that the Quebec Court of Appeal made any determination on the question of change of intention adverse to the contention of the Crown.

The question of evidence or no evidence is raised again in the first error of law alleged by the Crown and I shall consider it in what follows in these reasons.

The first question of law raised by the Crown is based on the contention that the majority judges erred in law in their interpretation and application of what is now s.613(1)(a)(i) of the Criminal Code in substituting their opinion for that of the jury in the appreciation of the facts founded upon the circumstantial evidence adduced by the Crown. The specified enactment empowered the Quebec Court of Appeal to allow an appeal from conviction where it was of opinion that “the verdict should be set aside on

[Page 888]

the ground that it is unreasonable or cannot be supported by the evidence”. What emerged from the submissions on this question, in reiteration of what was said thereon in the Crown’s factum, was that the majority judges erred in law in holding that there was no evidence to go to the jury.

I do not regard an attack upon a provincial appellate Court’s resort to s.613(1)(a)(i) as necessarily raising a question of law for the purposes of an appeal to this Court. Section 613(1), specifying when an appellate Court may allow an appeal from conviction, must be read against the provisions of s. 603(1) which set out the conditions governing an accused’s right of appeal. Where, as here, the appeal to the provincial appellate Court has been at large (by reason of the grant of leave), it must be a rare case where the jurisdiction of this Court, limited to a question of law, can be invoked on the basis of the misconstruction of the powers of the appellate Court under s. 613(1). The relevant inquiry, in my view, is whether the reasons of the appellate Court disclose a question of law upon which this Court may entertain the appeal thereto. Hence, it is enough to say, without reference to s. 613(1)(a)(i), that in so far as the Crown’s contention here is that the majority in the Quebec Court of Appeal proceeded erroneously on the basis that there was no evidence to go to the jury on the issue of guilty knowledge, a question of law is raised which is cognizable here if the contention is made out.

In seeking to support this contention, by reference to the reasons of Rivard J.A., two extracts from his reasons were relied upon. I find it unnecessary to reproduce them because as set out in the Crown’s factum they were torn from their context where they related to certain testimony of Daigle himself and of some police officers touching the guilty knowledge of the accused. In finding that the evidence as a whole did not support a determination of guilty knowledge, Rivard J.A., as I have already pointed out,

[Page 889]

was concerned with the sufficiency of the evidence. The fact, as was the case here, that an appellate judge decides that there was no evidence from the mouth of a particular witness on an issue in the case does not alone raise a question of law. Rivard J.A. nowhere said that the Crown had failed to make out a case to go to the jury.

There is, however, the statement to that effect, already quoted, by Montgomery J.A. relating to the issue of guilty knowledge (and not simply to the testimony of a witness thereon), and Crown counsel relied on it as well in putting forward his first-mentioned error of law. If the statement of Montgomery J.A. concerned a critical issue on which his brethren of the majority and, indeed, those of the minority, did not pronounce and he was wrong in asserting that there was no evidence on that issue, I would have to conclude that the acquittal could not stand; but, even so, it would not necessarily follow that the conviction would have to be restored. The restoration by this Court of the conviction in The Queen v. Taylor[16], over the lone dissent of Cartwright J., as he then was, resulted from the fact that all the opinions delivered in the provincial appellate Court were construed as based upon an erroneous determination that there was no evidence to go to the jury. The provincial appellate Court was not divided in its views in that case; and since the jury there had passed on the evidence the conviction was necessarily reinstated.

What distinguishes the present case from the postulated situation that I introduced above is that here the members of the majority in the provincial appellate Court dealt with the same determining issue and with the evidence thereon as representing a continuum. The fact that Montgomery J.A. went the farthest in favour of

[Page 890]

the accused along the line cannot erase the fact of his journey to the point at which his colleagues of the majority stopped. His reasons support this appraisal. Conversely, if it be said that he stopped short of the point that his brethren of the majority reached, his reasons may be read as none the less finding the evidence deficient to discharge the burden of proof upon the Crown. In my view, this is a case for the analogical application of what was said by this Court in its majority opinion in The Queen v. Warner[17]. As pointed out by Cartwright J., as he then was (at p. 151), where one of the grounds of decision of the provincial appellate Court is founded on the insufficiency of the evidence (thus excluding any appellate jurisdiction in this Court) the giving of another reason upon which jurisdiction could otherwise be founded will not support its exercise.

In the result, I would quash the Crown’s appeal on the ground that there is no question of law arising in the opinions of the Quebec Court of Appeal upon which it can proceed.

Appeal allowed, Martland, Hall, Spence and Laskin JJ. dissenting.

Solicitor for the plaintiff, appellant: François Tremblay, Quebec.

Solicitors for the defendant, respondent: Corriveau, Gauvin, Bouchard, Samson, Bilodeau & Gaudreau, Quebec.