Supreme Court of Canada
MacKrow v. The Queen, [1967] S.C.R. 22
Date: 1966-10-04
John Percy MacKrow Appellant;
and
Her Majesty The
Queen Respondent.
1966: May 27; 1966: October 4.
Present: Taschereau C.J. and Martland,
Judson, Ritchie and Hall JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
BRITISH COLUMBIA
Criminal law—Fraud—Real estate
transaction—Lawyer for vendor acting also for purchaser—Existence of second
mortgage not disclosed to purchaser—Whether case correctly put to jury—Criminal
Code, 1953-54 (Can.), c. 51, s. 323(1).
The appellant, a lawyer, was convicted by a
jury of having defrauded O by deceit, falsehood or other fraudulent means,
contrary to s. 323(1) of the Criminal Code. The appellant, who was
engaged on a monthly fee basis by the vendors, represented also the purchaser O
in a transaction in respect of the sale of a motel. The evidence was that the
appellant had failed to disclose to O the existence of an outstanding second
mortgage on the property. The Crown contended that this failure constituted
fraud within the meaning of s. 323(1) of the Code. The accused admitted
that he knew of this second mortgage but that his failure to inform the
purchaser was due to inadvertence on his part and without any intent to
defraud. It was conceded that the accused did not personally profit from the
alleged fraud. In his charge to the jury, the trial judge said that the
evidence, if believed, was that a false statement had been made by the accused
to the purchaser. An appeal to the Court of Appeal was dismissed. The accused
was granted leave to appeal to this Court.
Held: The
appeal should be allowed, the conviction quashed and the appellant acquitted.
[Page 23]
The trial judge’s charge amounted to
misdirection. The Crown’s case against the appellant was not that he had given
false information but that he had fraudulently withheld material information
from O, a situation essentially different in character from that put to the
jury by the trial judge. It was not possible to say that no substantial wrong
or miscarriage of justice had occurred by reason of this misdirection.
Droit criminel—Fraude—Opération
immobilière—Avocat du vendeur agissant aussi pour l’acheteur—Existence d’une
seconde hypothèque non dévoilée à l’acheteur—La cause a‑t‑elle été
soumise correctement au jury—Code criminel, 1953-54 (Can.), c. 51,
art. 323(1).
L’appelant, un avocat, a été trouvé coupable par
un jury d’avoir frustré O par supercherie, mensonge ou autres moyens dolosifs,
le tout contrairement à l’art. 323(1) du Code criminel. L’appelant, qui
touchait des honoraires mensuels du vendeur, a représenté aussi l’acheteur O
lors d’une opération immobilière concernant la vente d’un motel. La preuve
était à l’effet que l’appelant n’avait pas dévoilé à O l’existence d’une
seconde hypothèque en vigueur sur la propriété. La Couronne prétend que cette
négligence constituait une fraude dans le sens de l’art. 323(1) du Code.
L’appelant a admis qu’il était au courant de la seconde hypothèque mais que son
défaut d’en informer l’acheteur était dû à une inadvertance de sa part et sans
aucune intention de frustrer. Il est admis que l’appelant n’a retiré
personnellement aucun profit de la fraude alléguée. Dans son adresse au jury,
le juge au procès a dit que la preuve, si elle était crue, était à l’effet que
l’accusé avait fait à l’acheteur une fausse déclaration. La Cour d’appel a
rejeté l’appel. L’appelant a obtenu permission d’en appeler devant cette Cour.
Arrêt: L’appel doit
être maintenu, la condamnation mise de côté et l’appelant acquitté.
Les instructions du juge au procès étaient
erronées. L’accusation portée contre l’appelant n’était pas qu’il avait donné
de faux renseignements mais qu’il avait frauduleusement caché à O des
renseignements pertinents, une situation ayant un caractère essentiellement
différent de celle qui avait été soumise au jury par le juge au procès. Il
était impossible de dire qu’aucun tort important ou qu’aucune erreur judiciaire
grave ne s’était produite en raison des instructions erronées.
APPEL d’un jugement de la Cour d’appel de la
Colombie-Britannique, confirmant un verdict de fraude. Appel
maintenu.
APPEAL from a judgment of the Court of Appeal
for British Columbia, affirming a conviction for fraud. Appeal allowed.
No one appearing for the appellant.
W.G. Burke-Robertson, Q.C., for the
respondent.
[Page 24]
The judgment of the Court was delivered by
HALL J.:—The appellant was tried jointly with
one Arthur Bennett by a judge and jury in the month of January 1963 at
Vancouver in the Province of British Columbia upon three counts as follows:
1. That at the City of Vancouver, in the County
and Province aforesaid, between the 1st day of January, A.D. 1959, and the 30th
day of March, A.D. 1959, they, the said ARTHUR BENNETT and JOHN MacKROW,
together with HYCREST HOLDINGS LIMITED and HYCREST MOTELS LIMITED by deceit,
falsehood, or other fraudulent means, did defraud SAMUEL NORWOLL of property,
money or valuable security, contrary to the form of the statute in such case
made and provided and against the peace of our Lady the Queen, her Crown and
Dignity.
2. That at the City of Vancouver, in the County
and Province aforesaid and at the City of New Westminster, in the Province
aforesaid, between the first day of May, A.D. 1959, and the 30th day of June,
A.D. 1959, they, the said ARTHUR BENNETT and JOHN MacKROW, together with
HYCREST INVESTMENTS LIMITED, IDEAL MOTELS LIMITED and HYCREST MOTELS LIMITED by
deceit, falsehood or other fraudulent means, did defraud JAMES JACK ORAN of
property, money or valuable security, contrary to the form of the statute in
such case made and provided and against the peace of our Lady the Queen, her
Crown and Dignity.
3. That at the City of Vancouver, in the County
and Province aforesaid, between the 1st day of May, A.D. 1959, and the 30th day
of June, A.D. 1959, he the said JOHN MacKROW, being a trustee of money for the
use and benefit of JAMES JACK ORAN did convert, with intent to defraud and in
violation of his trust, the said money or a part of it to a use that was not
authorized by the trust, contrary to the form of statute in such case made and
provided and against the peace of our Lady the Queen, her Crown and Dignity.
“Amended
15.1.63
A.B.C.”
The jury acquitted MacKrow on Count 1, but
convicted him on Counts 2 and 3. Bennett was convicted on Counts 1 and 2. MacKrow
was sentenced by Mr. Justice Ruttan, the trial judge, to serve a term of
five years in the penitentiary on each of Counts 2 and 3, the sentences to be
served concurrently. He appealed to the Court of Appeal for
[Page 25]
British Columbia which, on October 17, 1963,
dismissed the appeal as to Count 2 but quashed the conviction on Count 3.
Accordingly, Count 2 in respect of MacKrow only is the one issue now before the
Court. The Court of Appeal did not disturb the five years’ sentence when it
dismissed the appeal in respect of Count 2. MacKrow was a prisoner in the
penitentiary until paroled on July 8, 1965. Shortly after his release from the
penitentiary, MacKrow applied to this Court for an order extending the time
within which to make application for leave to appeal and for an order granting
leave to appeal from the judgment of the Court of Appeal pronounced on the 17th
day of October, 1963. This application was dealt with on December 8, 1965, when
the following order was made:
THIS COURT DID ORDER AND ADJUDGE that the
time for applying for leave to appeal to this Court be and the same was
extended to the 8th day of December, 1965.
AND THIS COURT DID FURTHER ORDER AND
ADJUDGE that leave to appeal from the Judgment of the Court of Appeal for the
Province of British Columbia pronounced on the 17th day of October, 1963 be and
the same was granted on the following questions of law, namely:
“(1) Did the Court of Appeal err in holding
that there was evidence upon which the jury could reasonably convict the appellant
on Count No. 2 of the indictment.
(2) Did the Court of Appeal for British
Columbia err in holding that any defence which was available to the accused was
properly and adequately put by the learned trial judge in view of the
appellant’s contention that:
(a) The learned trial judge
instructed the jury that there was evidence on the part of the witness Oran
that a false statement was made to him at the time specified in the said Count
No. 2 whereas there was no such evidence;
(b) The learned trial judge
instructed the jury that it was not challenged that the appellant had given
false information to Oran whereas it was a part of the appellant’s defence that
he had not done so;
(c) The learned trial judge
instructed the jury that the appellant’s sole defence was that he had been
negligent whereas it was part of his defence that he had given no false
information.”
The substantive question argued on the hearing
of the appeal was whether the learned trial judge had erred in his direction to
the jury in respect of the law and evidence relating to Count 2. MacKrow was
not present on the hearing of the appeal nor was he represented by counsel.
However, he did file a factum and a memorandum in reply to the respondent’s
factum pursuant to leave granted by the Chief Justice of this Court.
Mr. Burke-Robertson, Q.C.,
[Page 26]
appeared for the Crown and developed the
evidence and points in issue with scrupulous fairness to the Crown and to the
appellant.
While the Crown was within its rights in
including Counts 1 and 2 in the one indictment, the fact that the two counts
were proceeded with in the one indictment did make for a very long and
complicated trial (over three weeks) in which it was difficult to keep separate
the evidence relating to Count 1 from that relating to Counts 2 and 3,
particularly as the wheelings and dealings of Bennett and the corporate
manipulations and financial difficulties of his companies, Hycrest Holdings
Limited and Hycrest Motels Limited, named in Count 1, were involved in both
Counts 1 and 2 and the same corporate manipulations and difficulties of these
companies and of a third company, Ideal Motels Limited, named in Count 2, were
also involved in respect of Count 2 as well as those of a fourth company,
Pacific American Motels Limited, not named in the count. The offence charged in
Count 2 was alleged to have taken place, according to the evidence, on or about
the 15th day of May, 1959. The evidence shows that the appellant was arrested
on the charge on January 5, 1962, and that in the interval civil litigation
over the transactions in question had taken place resulting in James Jack Oran,
the man named in Counts 2 and 3 recovering judgment against Bennett and MacKrow
in an amount of approximately $5,000 and costs. I mention this because in the
address of Mr. Mussallem, who was counsel for MacKrow at the trial, he
made reference to this lapse of time. He was interrupted by Ruttan J. and
directed to go no further with that submission as follows:
THE COURT: But you are criticizing the
Crown for not bringing the case earlier which, I think, is in fact criticism,
and I ask you not to go ahead with it.
Considered alone, perhaps nothing substantial
turns on this point although it is related to the question as to whether any
defence which was available to the appellant was properly and adequately put to
the jury by the learned trial judge. The fact that criminal proceedings were
not instituted for some 32 months after the alleged offence is said to have
been committed and then only after civil proceedings had been taken and a
judgment for some $5,000 obtained which was unsatisfied when the charge was
[Page 27]
laid, was in my view, a proper matter for
comment when the issue was, as in this case, one relating to whether or not a
person has been defrauded by deceit, falsehood or other fraudulent means.
Criminal proceedings brought long after the event complained of and following
civil proceedings that result in an unsatisfied judgment without any
explanation for the delay may well be looked upon with some suspicion by a jury
where the issue is financial loss arising out of a commercial transaction.
The basic facts upon which Counts 2 and 3 are
based are that on or about the 15th day of May, 1959, the person named in
Counts 2 and 3, the said James Jack Oran, had answered an advertisement in a
Saskatchewan paper relating to a motel which was for sale at White Rock,
British Columbia. He called at the Hycrest office in Vancouver on May 12, 1959,
and saw a Mrs. Young and Bennett. Following a discussion with these parties,
he decided to purchase the property. He signed a document (Exhibit 48) which is
headed “Offer for Purchase, Acceptance and Interim Receipt”, the vendor being
Pacific American Motels Limited. The purchase price was stated to be $47,500
payable $18,000 cash and an Agreement for Sale for the balance, $29,500 payable
over 15 years with interest at 6 per cent. He made a deposit of $1,000. He was
told at this time that there was a mortgage in favour of Associated Investors
Limited against the property for $12,000 payable at $225 per month. The offer
was submitted to Pacific American Motels Limited. Two days later he was
communicated with, and following a discussion, agreed to increasing the
interest rate to 7 per cent. He was then brought to MacKrow’s office which was
in the office of Hycrest Investments Limited, a motel on Denman Street in
Vancouver. MacKrow, who had been called to the Bar May 1, 1954, was engaged
principally in doing work for Bennett and his companies on a $1,200 a month fee
basis. This was the first time Oran had met MacKrow. In so far as going to
MacKrow, Oran testified:
A. I did say to Mrs. Young if I decide
to buy this property I will have to get a lawyer to draw up the transactions.
Q. Yes.
A. And she says, “Well, we have a lawyer
working with us, Mr. MacKrow, and that would be the most convenient, to
have him do the work.” And I said, “Well, he works for your company. Probably I
should still get a lawyer, some other lawyer.” And she was
[Page 28]
very emphatic, she said that it will cost
more to get some other lawyer, it will take more time, and besides MacKrow, he
does this work every day, it will be quicker, and the effect of what she said
was that it would be quicker and cheaper and it would be the best to have
MacKrow do the work. As a result of her suggestion I did engage MacKrow.
Then, in connection with the actual Agreement
for Sale which was prepared by MacKrow, Oran said that some two days later he
got a call to come to MacKrow’s office. This is when the Agreement for Sale
(Exhibit 51) was prepared and signed. Respecting the agreement, Mr. Oran
testified:
MR. COLTHURST:
Q. Who produced the agreement for sale,
Mr. Oran?
A. MacKrow did.
Q. And what, if any, discussion took place
about the document?
A. Well, I read over the first page terms.
Q. Yes?
A. And we agreed verbally with the terms,
the full amount $47,500.00, the down payment $18,000.00, of which I had already
paid $1,000.00.
Q. Yes?
A. And the monthly payments $263.51.
Q. Yes?
A. And there was a 15-year basis we agreed
verbally.
Q. Let me see that. Do you recall any
further discussion in connection with that agreement for sale?
A. Yes, I particularly noticed the
Associated Investors mortgage.
Q. And that is the mortgage that is
referred to on the first page of that document, is it?
A. That is right.
Q. Where it says subject to a mortgage in
favour of Associated Investors Limited, registered in the Land Registry office
under No. 238252C, which the vendors herein covenant to pay according to the
terms thereof?
A. Yes.
Q. And save harmless the purchasers
therefrom provided that should the vendors default in the payment of any monies
due under the said mortgage the purchaser may make payment of such monies to
the said mortgagee and the vendors shall allow the purchaser full credit
hereunder to the amount of such payment.
A. That is what I am referring to, yes.
Q. And was there any discussion in that
connection?
A. Well, we discussed the amount of the
mortgage and the standing and he said that is the mortgage that was on the
listing. It is approximately $12,000.00.
Q. And when you say “he”, who was “he”?
A. MacKrow.
Q. Yes. He said that is it. I am sorry, you
have already told us what he said. Yes, and what else?
A. That is the mortgage in good standing,
it is being paid off at $225.00 a month.
[Page 29]
Q. Yes.
A. I think there was another ten years to
go. So I did say, “Well, couldn’t I pay that directly to Associated Investors?”
Well, he said it really didn’t matter. The effect of what he said was that it
didn’t matter, the difference between $12,000.00 and the agreement for sale was
$29,500.00, and this particular mortgage is only $12,000.00 so even if the
vendor did default in the payments that I still had there was still $17,000.00
left. So it really didn’t matter, he said.
Q. And did you look at any other portion of
that agreement for sale?
A. Well, I went over all of it and they
said, I probably didn’t read all of the second page. MacKrow said, “Well, that
is the usual form,” and he emphasized paid in 15 years, I will get a clear
title, and that is all I asked to have the agreement for sale be what it is.
Q. And as far as looking now at the second
page of that agreement you say that you, as I recall the effect of what you
said, was you probably didn’t read it all. Did you read any of it or notice any
of it?
A. Well, I probably didn’t read it all, but
I noticed there were, this blank space.
Q. Yes?
A. And I think we discussed that. MacKrow
mentioned that if there were any changes or alterations it would be here. But
this is the usual blank space, the usual form that is used and I felt that that
was good enough.
Q. And you are referring to what blank
space? Just hold it up and show?
A. This one here.
Q. That is the blank space where again?
A. Right here.
Q. Where there is certain typewritten
words, is that right?
A. Yes.
Q. The typewritten words being what?
A. No exceptions.
After signing the agreement, Oran made out two
cheques totalling $17,060.18 payable to MacKrow. Oran then left and did not see
or speak to MacKrow again until some months later. Meanwhile, MacKrow proceeded
to have the agreement registered and in due course, on June 2, 1959, wrote Oran
at White Rock, British Columbia, as follows:
Dear Sir: Re sale to you of Ideal Motel,
White Rock.
The registration of the above-mentioned
sale has now been completed and I enclose herewith your copy of the agreement
for sale, which was registered in the New Westminster Land Registry Office
under No. 261951C. Also is enclosed a copy of the statement of adjustments for
your records.
[Page 30]
He enclosed a statement of adjustments as
follows:
Purchaser’s Statement of Adjustments
adjusted as of May 16, 1959
Re:
Purchase of Ideal Motel, White Rock, B.C.
|
To:
Purchase Price....................................................
|
$ 47,500.00
|
|
|
By:
Agreement for Sale.............................................
|
|
$ 29,500.00
|
|
By:
Deposit.................................................................
|
|
1,000.00
|
|
To:
Insurance at $404.00 for 3 yrs. unexpired portion 2 yrs.................................................................................
|
268.40
|
|
|
By: Taxes—Vendor’s share 4½ mos. @
$677.71..
|
|
254.11
|
|
By:
Vendor’s share sewer tax—$62.00 4½ mos....
|
|
23.31
|
|
By:
Plexolite Sign.......................................................
|
5.20
|
|
|
To:
Registration of Agree. for Sale...........................
|
24.00
|
|
|
To:
Legal Fees...........................................................
|
40.00
|
|
|
By:
Balance due from you..........................................
|
|
17,060.18
|
|
|
|
|
As stated previously, Oran was advised of the
mortgage in favour of Associated Investors Limited before he saw MacKrow. The
charge against MacKrow was that in addition to the Associated Investors’
mortgage there was also registered against the title to the property which Oran
was buying a second mortgage given by Ideal Motels Limited to Issie Feldstein
dated September 19, 1958, for the sum of $12,000 payable on or before March 25,
1959. Oran was not advised of the existence of this mortgage when he signed the
offer to purchase (Exhibit 48) and did not learn of it until, in the month of
September 1959, he had a call from Feldstein advising him of the mortgage and
demanding payment and threatening foreclosure as the mortgage was then overdue.
He immediately got in touch with MacKrow who he says assured him the matter
would be taken care of. MacKrow communicated with Bennett who, after some delay
and because neither he nor Hycrest Motels Limited were able to pay off the
Feldstein mortgage, arranged along with solicitors for Oran to have Credit
Foncier Franco‑Canadien take title and pay off the two mortgages. This
left Oran to settle with Credit Foncier but the transaction resulted in an
actual loss of $2,507.80 to Oran. The motel cost him that much more than he had
agreed to pay for it in the first place. This loss was part of the unsatisfied
judgment previously mentioned which he subsequently recovered against MacKrow
and Bennett.
[Page 31]
The Crown alleged that MacKrow had knowledge of
the existence of the Feldstein mortgage on May 15, 1959, both from the fact
that he had prepared the mortgage in the first place in September 1958 and from
the fact that he participated in a meeting on April 8, 1959, at which a
document (Exhibit 35) was prepared by him and which dealt specifically with the
Feldstein mortgage. Exhibit 35 reads as follows:
Vancouver,
B.C.
April 8, 1959.
Hycrest
Motels Ltd.,
1120 Denman St.,
Vancouver, B.C.
Dear Sirs:
Re:
Transfer to us of El Rancho
Columbia, Fairlane, Triway
Motels.
This is to confirm our agreement with you
made this date with reference to the above transfer of motel properties, as
follows:—
1. We are to have full possession and title
to the above motels, together with all shares in companies owning any of the
said properties.
2. All adjustments between us with
reference to the said transfers are to be taken as settled by the transfer to
us of all shares in the company known as Ideal Motels Ltd., and by the transfer
to us of the property known as Buena Vista Motel, White Rock, B.C. You agree to
discharge at your expense “by April 26, 1959” the mortgage now on the Ideal
Motel property in the approximate amount of $13,800.00 held by one Issie Feldstein.
3. A full mutual release is to be executed
by both you and us.
Yours
very truly,
Pacific
American Motel Corp. Ltd.
Per: “E.W. Ormheim”
Per: “J.W. Ambler”
“EWO”
“JPM”
The Crown says that MacKrow’s failure to bring
to Oran’s attention the fact of the existence on May 15, 1959, of the Feldstein
mortgage was fraud within the meaning of s. 323(1) of the Criminal
Code. There is no evidence that MacKrow said in so many words that the
property was subject only to the Associated Investors’ mortgage or that there
was only one mortgage. Rather he inserted a clause in the Agreement for Sale
(Exhibit 51) to safeguard Oran in respect of the Associated Investors’ mortgage
only of which Oran had knowledge. The Crown’s position is that MacKrow’s
silence and failure to make known the existence
[Page 32]
of the Feldstein mortgage to Oran at that time
was fraud on his part. MacKrow, while admitting that he knew of the Feldstein
mortgage in September 1958 and that it was still unpaid as of April 8, 1959,
said that his failure to inform Oran of it was due to inadvertence on his part,
and while admitting negligence as a solicitor in failing to have a search made
of the title which would have shown the mortgage still on the title, he
insisted that it had been done innocently and in a hurry and without any intent
to defraud. The issue, therefore, which the jury had to decide was whether the
Crown had made out its case of fraud against MacKrow beyond a reasonable doubt.
The burden of proof was on the Crown to
establish the fraud. It relied strongly on Exhibit 35 quoted above, but it must
be noted that this exhibit specifically contained the statement that the
Feldstein mortgage was to be discharged by April 26, 1959. There was no direct
evidence that the appellant knew that this had not been done when he dealt
with. Oran on May 15. The jury was asked to conclude that because this mortgage
was registered against the property to MacKrow’s knowledge in April that it was
necessarily fraud on his part when he failed to communicate that fact to Oran
on May 15 even though the document (Exhibit 35) relied on so strongly by the
Crown itself provided for the mortgage being off the title by April 26. Much
stress was placed by the Crown on a document (Exhibit 56) dated May 22, 1959,
signed by one Ellen M. Rodgers, MacKrow’s secretary, which accompanied the
Agreement for Sale when it was tendered for registration in the Land Registry
Office on May 27, 1959. This document in which Rodgers said she was the
authorized agent of Oran stated that the Agreement for Sale was being
registered subject to both mortgages and listed the registered numbers of the
two mortgages. According to this witness, these numbers may have been typed in
after the document was prepared between May 22 and May 27, 1959. Obviously by
May 27, 1959, some one in MacKrow’s office was or became aware that the
Feldstein mortgage was still on the title because its registered number was
inserted at or prior to the time the Agreement for Sale was being tendered for
registration. MacKrow denied having prepared the document and there was no
evidence of the source from which the witness Rodgers got the number of the
Feldstein mortgage if, in
[Page 33]
fact, she was the one who actually typed in the
number. She did not identify MacKrow as the source from which she got the
number.
This summarizes the evidence relied on by the
Crown to bridge the gap between the time the Feldstein mortgage should have
been discharged according to Exhibit 35 and May 15 and upon which the Crown
argued that the jury must infer that MacKrow knew the mortgage had not been
discharged as of May 15 and that he fraudulently withheld that fact from Oran
in order to get the $17,000 cash for his principal client Bennett. It was
conceded that MacKrow did not personally profit from the alleged fraud.
This was the case which MacKrow had to answer.
The defences open to him on the evidence included (1) the contention that he
had made no false or any statement to Oran respecting the Feldstein mortgage
and (2) that his failure to tell Oran of the Feldstein mortgage was due to
inadvertence and was not deliberate or intended to mislead or defraud Oran.
Ruttan J. put the case to the jury as follows:
Now on the other hand in the second count,
in the Oran count, there is, I suggest to you, no evidence of a promise to do
something in the future. The evidence, if you accept it, on the part of Oran
is that a false statement was made to him at that time. In fact, I do not think
it is challenged that he was given false information. The defence is that it
was by negligence, by inadvertence, but I do not think it is disputed that he
was given false information, the false statement being once again, that there
was only one encumbrance on the property when, in fact, there was a second
encumbrance, once again a mortgage in the name of Issie Feldstein which was
never revealed to Oran until Feldstein himself called him up some months later
to warn him that he was going to foreclose.
(The italics are my own.)
In my view this was misdirection. The case against
the appellant was not that he had given false information but that he
had fraudulently withheld material information from Oran in order to
obtain the money which Oran paid to him on May 15, a situation essentially
different in character from that put to the jury in the quotation set out
above. See Regina v. Charters.
I am unable to say that no substantial wrong or
miscarriage of justice has occurred by reason of this misdirection. It follows
that the conviction against the appellant on Count 2 cannot stand.
[Page 34]
There remains the question as to whether a new
trial should be ordered. Crown counsel did not ask for a new trial in the event
that the conviction was set aside. The conviction will, accordingly, be quashed
and MacKrow acquitted on Count 2. His previous acquittals on Counts 1 and 3
completely dispose of the charges against him.
Appeal allowed, conviction quashed and appellant
acquitted.
Solicitors for the respondent: Boyd, King
& Toy, Vancouver.
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