McKenna v. R., [1961] SCR 660

Supreme Court of Canada

McKenna v. R., [1961] S.C.R. 660

Date: 1961-06-26

Willis McKenna (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1961: June 13, 26.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Wilful obstruction of lawful use of property—Statements of accused made voluntarily—Jury properly instructed as to “wilfully” to prove specific intent—Sufficient evidence for jury to convict.

[Page 661]

The accused drove his motor car onto a railway right-of-way and left it on the tracks where a train crashed into it. Police officers found the accused at the home of one D and on being asked where his car was he replied that it was parked on the railway track, that he did not think trains travelled on that track, that he had taken the keys and turned off the lights and that he had walked four miles for help. When told of the collision he repeated the story but said the car was stuck rather than parked. He could walk without assistance but staggered and appeared to be intoxicated. He was indicted on two counts: (1) that he wilfully obstructed the lawful use of property and (2) that he drove a motor vehicle while intoxicated. The jury found the accused guilty on the first charge and not guilty on the second. His appeal to the Court of Appeal was dismissed. Leave to appeal was given by this Court on certain questions of law.

Held: The appeal should be dismissed.

(1) The statements of the appellant were made voluntarily; no threats or promises had been held out by the police officers.

(2) The trial judge instructed the jury properly and adequately as to what was necessary for them to find that the appellant wilfully obstructed the lawful use of property.

(3) There was evidence upon which the jury could have convicted and the trial judge should not have directed the jury to acquit.

APPEAL from a judgment of the Court of Appeal for Ontario, affirming the accused’s conviction on a charge of wilfully obstructing the lawful use of property. Appeal dismissed.

C.R. Thomson, for the appellant.

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

The judgment of the Court was delivered by

THE CHIEF JUSTICE:—By leave of this Court Willis McKenna appeals from a judgment of the Court of Appeal for Ontario dismissing his appeal against his conviction after a trial before His Honour Judge Willmott and a jury. He had been indicted on two counts: (1) that on or about the 10th day of February, A.D. 1960, he did wilfully obstruct the lawful use of property, to wit: The Canadian Pacific Railway right-of-way at Dixie Road; (2) that on or about the 10th day of February, A.D. 1960, while intoxicated he did drive motor vehicle bearing Ontario licence number N4151,—both contrary to the Criminal Code. The jury found the appellant guilty on the first charge and not guilty on the second.

[Page 662]

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

1. Did the Trial Judge err in admitting the statements of the accused made to the police or to the Canadian Pacific Railway investigating Officer?

2. Did the Trial Judge err in failing to instruct the jury adequately as to “wilfully” and as to the burden of the Crown to prove a specific intent?

3. Was there any evidence upon which the jury could have convicted or should the Trial Judge have directed the jury to acquit?

I have gone over the entire record and I adopt as correct the following statement of facts contained in the respondent’s factum. The evidence discloses that some time prior to 10.17 p.m. on the evening of February 10, 1960, the appellant turned his motor car off the travelled portion of the highway at a level crossing and proceded a short distance along the railway tracks. At 10.17 p.m. a train crashed into the car and carried it over a 1,000 foot-long bridge before coming to a stop. The engineer saw no lights on the car before the impact. The motor had been shut off and the keys were missing. At 10.30 p.m. the appellant called at the house of the witness Ogden, which was about 1,000 yards away from the railway crossing, and asked him to call a taxi. He left before the taxi came. Ogden described him as being drunk. At 11.45 p.m. two police officers, Bodley and Cooper, found the appellant at the home of one Delany, two or three doors from Ogden’s. They asked where his car was and he replied that it was parked on the railway track, that he did not think trains travelled on that track, that he had taken the keys and turned off the lights and that he had walked four miles for help. He produced the keys. When told of the collision he repeated the story but said the car was stuck rather than parked. The appellant could walk without assistance but staggered and appeared to be intoxicated. He was placed under arrest and taken to Ogden’s house which he identified as the place from which he had tried to make a telephone call. He identified Ogden as the man to whom he had spoken.

As to the first question of law it is necessary to refer only to the evidence of the police officers, Bodley and Cooper.

[Page 663]

The County Court judge carefully considered their testimony and the arguments presented by counsel and decided that notwithstanding the evidence of drunkenness on the part of the appellant the latter knew what he was saying. It is not a case where a trial judge considered that the words used by an accused did not, because of his condition, amount to his statement. After having admitted the statements in evidence the judge then left it to the jury to assess what weight should be attached to them. I have no doubt that the statements were made voluntarily and that no threats or promises had been held out by the police officers.

As to the second question of law, after having read and considered the charge of the trial judge several times, I have no difficulty in concluding that he instructed the jury properly and adequately as to what was necessary for them to find that the appellant wilfully obstructed the lawful use of property.

Finally, as to the third question, there was evidence upon which the jury could have convicted and the trial judge should not have directed the jury to acquit. It was argued that the finding by the jury that the appellant was not guilty of the second charge showed that the jury were perverse in finding the appellant guilty on the first charge. It is impossible to agree with this contention as quite likely the jury decided that having found the appellant guilty on the first charge they would be merciful in dealing with the second charge.

The appeal should be dismissed.

Appeal dismissed.

Solicitor for the appellant: Malcolm Robb, Toronto.

Solicitor for the respondent: Attorney-General for the Province of Ontario, Toronto.