R. v. Laroche, [1964] SCR 667

Supreme Court of Canada

R. v. Laroche, [1964] S.C.R. 667

Date: 1964-05-21

Her Majesty The Queen (Plaintiff) Appellant;

and

Adrienne Laroche (Defendant) Respondent.

1964: March 12, 13; 1964: May 21.

Present: Taschereau C.J. and Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Theft by conversion—Municipal treasurer giving municipal moneys to mayor on latter’s instructions—Deficiencies concealed in accounts by treasurer—Defence of honest belief that accused was justified in following mayor’s order—Court of Appeal ordering new trial—Whether trial unsatisfactory in regard to instructions to jury on defence’s theory—Whether appeal to Supreme Court raises question of law—Whether conversion of moneys to accused’s own use as charged—Criminal Code, 1953-54 (Can.), c. 51, ss. 269(1), 598(1)(b).

The respondent was convicted of unlawfully converting to her own use a sum of money, the property of a municipal corporation of which she was the treasurer and tax collector, and thereby stealing the same. The respondent admitted taking cash from the parking meter collections and depositing cheques due to the municipality from third persons in the parking meter bank account in order to balance that account and finally destroying the records of the transactions with these third persons. Her defence was that she gave the money to the mayor of the municipality in the honest belief that he had authority to receive the same and that she took no money for herself. The mayor gave evidence for the defence and testified that he had been authorized by council to receive up to $2,600 per year in addition to his salary for charitable purposes. Nine cheques were used in this way. The accused admitted that all of these cheques, with the exception of the Beaudry cheque and the Noël cheque, were bona fide cheques payable to the municipality and should have been credited to other accounts and that these other accounts were falsified. As to the Beaudry cheque, the respondent denied having any knowledge of this transaction. Beaudry himself said that this cheque was for the purchase of a lot and that he had received a conveyance. As to the Noël cheque which was certified, the mayor said that Noël cashed this cheque with the municipality to meet a payroll; the accused said that she understood from the mayor that Noël was cashing the cheque to raise money in a hurry for a holiday in Florida; and Noël said that it was paid to the municipality as a deposit for services to be rendered to his company by the municipality. The Court of Appeal found non-direction as to these last mentioned cheques and ordered a new trial. The Crown was granted leave to appeal to this Court on the question as to whether the Court of Appeal erred in law in holding that the trial judge misdirected the jury as to the theory of the defence.

Held (Cartwright, Hall and Spence JJ. dissenting): The appeal should be allowed and the conviction restored.

Per Taschereau C.J. and Fauteux, Abbott, Martland, Judson and Ritchie JJ.: As to the Beaudry cheque, the jury had the accused’s explanation that she knew nothing about this particular item. They did not believe her. This aspect of the charge was adequate.

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As to the Noël cheque, the jury were entitled to consider all the circumstances—the concealment, the falsification of books, the whole operation of the parking meter account for improper purposes and the fact that this was a certified cheque. There could be no possibility of confusion or lack of understanding on the part of the jury. The brevity of the judge’s reference to this cheque had not and could not have had the slightest effect in bringing about any lack of appreciation of the issues or the evidence in the minds of the jury. They could come to no conclusion other than the one that they did, namely, that there could be no honesty or honest opinion of right in these transactions.

This appeal raised a question of law.

The accused did convert the money to her own use and the judge’s instruction on this point was correct.

Per Cartwright and Hall JJ., dissenting: The Court had jurisdiction to entertain the appeal. The question on which leave to appeal was granted was one of law and all of the grounds on which the Court of Appeal held that the conviction should be quashed were grounds the validity of which depended upon the answers given by that Court to questions of law.

The charge of the trial judge in regard to the evidence relating to the Beaudry cheque and that relating to the Noël cheque was insufficient. Since the trial judge instructed the jury that they should convict if satisfied that she had stolen the money represented by any one of the nine cheques, an Appellate Court could not know that the verdict was not based solely on the view that the guilt had been established as to the moneys represented by one or part of these two cheques.

There was also misdirection when the trial judge directed the jury that they could convict if they found that the accused converted the money in question to the use of the mayor since such a conversion would not be within the scope of the charge as laid. Parliament has seen fit to treat conversion to an accused’s own use and conversion by an accused to the use of another person as two alternative modes of committing the offence of theft by conversion. Subject to the making of an amendment, the prosecution was bound by the description of the offence contained in the indictment. On the charge of the trial judge read in the light of the evidence, it was open to the jury to find that she handed to the mayor some or all of the moneys covered by the nine cheques, that she made use of none of these moneys for herself, but that she had no belief that the mayor had any colour of right to the moneys so taken. On these findings, it would not have been open to them to convict her of converting the moneys to her own use.

Per Spence J., dissenting: The Court of Appeal found that the trial judge failed to give to the jury the evidence as to the defence in a sufficient character to permit them to consider that defence. It has been held in this Court as a matter of law that the trial judge must review the substantial parts of the evidence and give to the jury the theory of the defence. There was therefore an appeal to this Court under the provisions of s. 598(1)(b) of the Code.

The ground relied upon by the Court of Appeal, namely, that the trial judge erred in directing the jury that they could only acquit the accused if they found that she believed she was under a legal compulsion to obey the mayor’s orders, whereas it was sufficient if she honestly believed she was justified in following his orders even though she was not bound to do so, was not well taken. The trial judge pre-

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sented to the jury the defence as it was made and then added that even if on the facts what was shown was a position weaker than belief in obligation and merely was belief in justification, it would, if established, have been a sound defence. But the ground relied upon by the Court of Appeal that the trial judge while he put the theory of the defence to the jury did not discuss the evidence relating to that theory in a sufficiently comprehensive way, particularly in relation to the Beaudry and Noël transactions, was well taken. In the light of the circumstances, it would seem that the trial judge was required to outline the evidence adduced by the defence upon these two transactions in some particularity. Failure to do so would, in essence, be failure to put to the jury the defence of the accused. Yet the reference to these two transactions was regrettably brief. This constituted non-direction amounting to misdirection and a new trial should be had.

The instruction by the trial judge on the form of the indictment that the accused could have been convicted had it been proved that she converted to her own use any sum was a proper instruction. When the accused took the funds she converted them to her use despite the fact that her use of them was to deliver them to the mayor.

APPEAL from a judgment of the Court of Appeal for Ontario[1], setting aside the conviction of the respondent and directing a new trial on the ground of non-direction. Appeal allowed, Cartwright, Hall and Spence JJ. dissenting.

R.P. Milligan, Q.C., for the appellant.

G.A. Martin, Q.C., and B. Carter, for the respondent.

The judgment of the Chief Justice and Fauteux, Abbott, Martland, Judson and Ritchie JJ. was delivered by

JUDSON J.:—The Crown appeals with leave of the Court from a judgment of the Court of Appeal for Ontario¹ which set aside the conviction of the accused and directed a new trial on the ground of non-direction. The Crown contends on this appeal that the verdict of the jury should be restored and that the judge’s charge was adequate.

The accused was convicted on the following indictment:

That Adrienne Laroche did, between the 17th day of September, 1956 and the 17th day of May, 1960, at the Town of Eastview, in the County of Carleton, unlawfully convert to her own use money to the amount of $10,790.52, the property of the Municipal Corporation of the Town of Eastview and did thereby steal the same, contrary to the Criminal Code of Canada.

In spite of the fact that the trial lasted two weeks, the issues in the case were simple. The accused was charged

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with taking money from the parking meter collections of the Town of Eastview. Periodically, the meters were emptied, the small coins counted and taken to the bank. Instead of being deposited in the proper account, the coins were converted into paper currency and brought back to the Treasurer’s Department of the Town of Eastview and kept there. From time to time the Treasurer took money from this account and the total alleged to be missing is the amount mentioned in the indictment, $10,790.52.

This shortage had to be concealed in some way if the auditors were not to become aware of what was going on. The method adopted was to take a bona fide cheque payable to the Town of Eastview and put it in the parking meter collection account and deposit it in the bank. The parking meter account, therefore, showed no shortage. The account in the books of the town to which the bona fide cheque should have been credited was falsified or destroyed. Nine cheques were used in this way. They are as follows:

(1)	Millcraft (Ontario) Limited.....................................	$         906.81	Nov.	26/56
(2)	Millcraft (Ontario) Limited.....................................	923.81	Jan.	28/57
(3)	A. Beaudry.............................................................	1,000.00	Apr.	25/58
(4)	Ottawa Gas Company..........................................	347.99	Dec.	5/58
(5)	Ottawa Gas Company..........................................	1,231.05	July	28/58
(6)	L.W. Noël Limited.................................................	2,000.00	Oct.	28/57
(7)	C.L. Laroche..........................................................	977.00	Oct.	4/58
(8)	C.L. Laroche..........................................................	1,000.00	Sept.	4/58
(9)	C.L. Laroche	2,404.65	May	19/59
		$    10,790.52

The accused admitted that all of these cheques, with the exception of item No. (3), the Beaudry cheque, and item No. (6), the Noël cheque, were bona fide cheques payable to the Town of Eastview and should have been credited to other accounts and that these other accounts were falsified. There was some question about the Beaudry and Noël cheques and I will deal with the evidence on this later.

The accused commenced her employment with the Town of Eastview in the year 1947 as a clerk in the Treasurer’s Department. In 1951, she was appointed Treasurer and Tax Collector and held this office until December 29, 1960. The accused admitted that she took cash from the parking meter collections and deposited cheques due to the municipality from third persons in the municipal bank account in order to balance the accounts, and she admitted that she destroyed the records of the transactions with the third persons. Her

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excuse was that she gave the money to the Mayor of the municipality in the honest belief that he had authority to receive the money and that she took no money for herself.

Lavergne, the Mayor of the municipality, gave evidence for the defence. He was also a member of the Legislature of the Province of Ontario. He said that in 1955 and 1956 the municipal council wished to raise his salary to $5,000 from $2,400 but that he declined the increase because of the extra income tax that he would have to pay. He said that he made an informal arrangement with the council that he could draw in cash up to $2,600 a year to give to the poor and needy. He said that he did not exceed in any one year the total of $2,600 so authorized to be paid to him and that he used the money for the purposes stated. He did not keep any records of the amounts he received and Mrs. Laroche did not keep any records of the amounts that she gave to him.

This outrageous defence, coming as it did from two public officials of long experience, was put to the jury by counsel for the accused and by the judge. It was put to the jury by the judge with gravity and respect, without criticism and without commendation. This is the way counsel for the accused put it to the jury:

If Mrs. Laroche had an honest belief that what Lavergne told her to do was all right, that she could do it, and that he had power and authority to order it, and she believed that he had such power and authority to order it, then what she did in allowing him to take money and what she did in not entering up these records as they should have been entered up, in a proper accounting system, in my respectful submission, is not a crime…whether Lavergne takes the money out of the box, or whether he tells her to take it out and give it to him, is immaterial in my respectful submission. If she honestly believed that Lavergne had the right, Council had said it is all right, charge it to whatever Department has the money.

This is the way the judge put it to the jury by way of summary after full discussion:

Now here the theory of the defence as I understand it is that the accused honestly thought she was obliged to take this money as Lavergne had asked or ordered her to, because he was the Mayor, and had told her the Council had authorized him to have the money. Now if you believe her, or if you have a reasonable doubt in the matter, then you must acquit her, because she had not the fraudulent intent to steal.

I now turn to the two items on which the Court of Appeal found non-direction. The first is item No. (3) on the above list—the Beaudry cheque. Beaudry said that he gave his cheque payable to the town for the purchase of a lot and

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that he received a conveyance. The respondent denied having any knowledge of this transaction but the fact is that the Beaudry cheque, a bona fide cheque payable to the town, got into the parking meter collection account under her charge and was used at some date after April 25, 1958, to cover up the taking of the sum of $1,000. This was plain to the jury. They had her explanation that she knew nothing about this particular item. They did not believe her. This is what the judge said about the Beaudry cheque:

The same with the Beaudry cheque for $1,000. The accused said she does not know how that got into the Treasurer’s drawer and gave no explanation for it at all, and as Crown counsel has suggested, it is a peculiar situation where a cheque for $1,000 would be kicking around with the Treasurer not being curious enough to make some enquiry to find out where it came from, or why it was there and what it was for, but this again appears to have been used for covering up the taking of monies.

I think that aspect of the charge was adequate.

The second of the two disputed items is No. (6) on the above list, the cheque of L.W. Noël Limited. This company was in the construction business. The cheque was a certified cheque for $2,000 payable to the Town of Eastview and Noël said that it was paid to the town as a deposit for services to be rendered to his company by the town for the installation of sewer pipes and water mains. Lavergne said that Noël cashed this cheque with the town to meet a payroll. Mrs. Laroche said that she understood from Lavergne that Noël was cashing the cheque to raise money for a holiday in Florida and that he wanted the money in a hurry. These are the three explanations of the use of the Noël cheque referred to in the judge’s charge, and they could not fail to be clear in the minds of the jury.

This is what the judge said:

The next one is in April and July of 1958 when we are told about the Noël cheque for $2,000, and we are given three explanations of how that cheque came to be in the Municipal coffers, and you will have to decide which, if any, of these stories you accept. I do not know that you have to accept any of them. The fact is it was put in there and apparently improperly used and not credited.

Noël was called as the last witness in reply by the Crown. He had by this time, of course, heard the explanations that he was cashing a cheque for a pay-roll or for a trip to Florida. He denied that he had ever cashed a cheque with the municipality and was again cross‑examined at length, much of it repetition of what he had gone through before.

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The next day the case went to the jury. The $2,000 cheque was fully dealt with by counsel for the accused and he put it to them that the cheque was cashed. Counsel for the Crown put it to them that it was for a building permit and that whatever the purpose was, it was payable to the Town of Eastview and had nothing to do with the parking meter account and that the only purpose of getting it into that account was to cover up a defalcation of $2,000. The jury heard all this evidence, argument and instruction from the judge. They were entitled to consider all the circumstances—the concealment, the falsification of books, the whole operation of the parking meter account for improper purposes, and finally, the fact that this was a certified cheque that all the discussion was about. Why have a cheque certified in the afternoon if you are going to need cash? Why not get the cash instead of having the cheque certified?

I cannot see any possibility of confusion or lack of understanding on the part of the jury. I have already said that in my opinion, the issues were plain. The jury knew what these issues were and were in a position to form an opinion on the credibility of the two witnesses I have mentioned. The brevity of the judge’s reference to the $2,000 cheque had not and could not have had the slightest effect in bringing about any lack of appreciation of the issues or the evidence in the minds of the jury. In my opinion they could come to no conclusion other than the one that they did, namely, that there could be no honesty or honest opinion of right in these transactions.

I would allow the appeal and restore the verdict of the jury and the sentence of the Court.

I agree with the reasons of Spence J.

(a) that this appeal raises a question of law,

(b) that the accused did convert the monies to her own use and that the judge’s instruction on this point was correct.

The judgment of Cartwright and Hall JJ. was delivered by

CARTWRIGHT J. (dissenting):—The course of the trial and the questions raised on this appeal are stated in the reasons of other members of the Court.

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I agree with what I understand to be the opinion of all the other members of the Court that the question on which leave to appeal was granted is one of law, that all of the grounds on which the Court of Appeal[2] held that the conviction should be quashed were grounds the validity of which depended upon the answers given by that Court to questions of law and that, consequently, this Court has jurisdiction to entertain the appeal.

For the reasons given by my brother Spence and those given by McLennan J.A. I agree with their conclusion that the charge of the learned trial judge in regard to the evidence relating to the Beaudry cheque and that relating to the Noël cheque was insufficient. This defect assumes added importance by reason of the fact that the learned trial judge had, in effect, instructed the jury that they should convict the respondent if satisfied beyond a reasonable doubt that she had stolen the money represented by any one of the nine cheques listed in the reasons of my brother Spence. An appellate Court cannot know that the verdict of the jury was not based solely on the view that the guilt of the accused had been established as to the moneys represented by one or both of these two cheques.

My agreement on this point renders it unnecessary for me to examine the other grounds of law which were raised in the Court of Appeal and on which counsel for the respondent relies. I wish, however, to deal with the one which was stated as follows in the notice of appeal to the Court of Appeal:

That the learned trial judge erred in law in directing the jury that they could convict the appellant if they found that she improperly converted the money in question to the use of Lavergne since such a conversion would not be within the scope of the charge as laid.

The charge on which the accused was indicted and tried was as follows:

Adrienne Laroche did, between the 17th day of September, 1956, and the 17th day of May, 1960, at the Town of Eastview, in the County of Carleton, unlawfully convert to her own use money to the amount of $10,790.52, the property of the Municipal Corporation of the Town of Eastview and did thereby steal the same, contrary to the Criminal Code of Canada.

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The relevant words of s. 269(1) of the Criminal Code defining the offence with which the respondent was charged are as follows:

Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything…with intent…

The corresponding words of the Criminal Code prior to the coming into force of the present code were the following, in s. 347:

Theft or stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person anything…with intent…

In the present code Parliament has seen fit to treat (i) conversion to an accused’s own use, and (ii) conversion by an accused to the use of another person, as two alternative modes of committing the offence of theft by conversion. The prosecution could, if so minded, have charged the respondent in the words of s. 269; in which case the defence might well have moved for particulars. However, when the prosecution sees fit to particularize in the indictment itself it is, subject to the making of an amendment in a proper case, bound by the description of the offence contained in the indictment.

On the charge of the learned trial judge read in the light of the evidence it was open to the jury to find, (i) that the respondent handed to Lavergne some or all of the moneys covered by the nine cheques, (ii) that she made use of none of these moneys for herself, but (iii) that she had no belief that Lavergne had any colour of right to the moneys so taken. If, as may be the case, these were the conclusions arrived at by the jury, it would have been their duty to convict the respondent, had she been so charged, with converting the moneys to the use of Lavergne; but it would not, in my opinion, have been open to them to convict her of converting the moneys to her own use. It may be observed that at no stage of the proceedings did the Crown apply for any amendment.

In the course of his charge to the jury the learned trial judge said:

Now the accused further says she took or retained none of the money for herself, but she turned over every cent she received to the Mayor, and I must tell you it is immaterial to this charge whether she kept some, all or none of the money. In fact in the first instance when she took it, it was

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for use to do as she wished with, and the use she made of it was to give it…or some of it surreptitiously I suggest to Lavergne. If she took it for his use entirely it still falls in the definition of theft as I gave it to you, which definition is imported into the charge by the definitions I read.

For the reasons I have given above on this branch of the matter, I am of opinion that this was misdirection fatal to the validity of the conviction; and on this ground also I would have upheld the order made by the Court of Appeal.

I would dismiss the appeal.

SPENCE J. (dissenting):—This is an appeal by the Crown from the judgment of the Court of Appeal for the Province of Ontario[3] directing a new trial of the accused. The appeal is taken by leave of this Court granted on May 6, 1963, and the appeal was permitted upon the following question:

Whether the Court of Appeal erred in law in holding that the learned trial judge misdirected the jury as to the theory of the defence?

Counsel for the accused took the preliminary objection that the Court of Appeal had allowed the appeal and directed a new trial upon two separate and independent grounds: (1) that the trial was unsatisfactory because the trial judge, while he put the theory of the defence to the jury, did not discuss the evidence relating to that theory in a sufficiently comprehensive way, and (2) that the trial judge erred in directing the jury that they ought to acquit the accused if the accused, honestly thought that she was obliged to give the money to the mayor and thereby conveyed to the jury the impression that they should acquit only if the accused believed she was under a legal compulsion to obey the mayor’s orders, whereas it was sufficient, if she honestly believed that she was justified in following the mayor’s orders even though she was not bound to do so. Counsel for the accused submitted that the first of those grounds was a ground of fact and that no appeal lay to this Court upon such ground. Where the provincial court of appeal has allowed an appeal on two grounds and no appeal lies to the Supreme Court of Canada on one of those grounds, no appeal will be considered with respect to the other of such grounds because the appeal would be devoid of practical results: Ouvrard v. Quebec Paper Box Co. Ltd.[4] and The Queen v. Warner[5]. It is true that in R. v. Cohen

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and Bateman[6], the Court of Criminal Appeals held that a mistake of the judge as to the fact or omission to refer to some point in favour of the prisoner is not a wrong decision on any point of law but merely comes within the words “on any grounds” as those words appear in s. 592(1)(a) (iii) of the Criminal Code, so that the appeal should not be carried beyond the Court of Appeal of Ontario, those words not appearing in s. 598(1)(b) of our Code.

I am of the opinion that it has been held in this Court as a matter of law that the trial judge must review the substantial parts of the evidence and give to the jury the theory of the defence.

The present Chief Justice of this Court, in Azoulay v. The Queen[7], said at p. 497:

The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.

In the result, the appeal was allowed, the judgment of the Court of King’s Bench (Appeal Side) reversed, and a new trial directed.

In Rex. v. Krawchuk[8], this Court considered an appeal by the Crown from the Court of Appeal of British Columbia quashing a conviction for murder and directing a new trial. In giving judgment dismissing the appeal, Kerwin J., as he then was, said at p. 223:

A trial Judge need not refer to every piece of evidence but to omit to mention the only evidence upon one branch of the defence is an omission to place that defence before the tribunal of fact.

There is no word in the judgment as to any lack of jurisdiction to consider such a ground in the Supreme Court of Canada.

In Brooks v. The King[9], this Court allowed an appeal from the judgment of the Appellate Division of the Supreme Court of Ontario which had dismissed an appeal by the

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accused from his conviction at trial. At p. 636 of the judgment, it is said:

Misdirection in a material matter having been shown, the onus was upon the Crown to satisfy the Court that the jury, charged as it should have been charged, could not, as reasonable men, have done otherwise than find the appellant guilty. That burden the Crown, in the view of the majority of the Court, has not discharged. There was non‑direction by the learned trial judge in a vital matter, tantamount in the circumstances of this case to misdirection, and constituting a miscarriage of justice within subs. (1)(c) of s. 1014 of the Criminal Code.

That section is now s. 592(1)(a) and yet the Court considered it.

In Kelsey v. The Queen[10], leave to appeal was granted the accused upon two questions. Question (a) being, did the learned trial judge err in failing to instruct the jury adequately as to the theory of the defence? Fauteux J. at p. 225 said:

It is suggested that the trial Judge should have commented on:—

(h) The lack of any evidence of blood or signs of a struggle in the victim’s taxi which serves strongly to contradict the appellant’s statement to the police.

And at p. 226, commenting on this suggestion (h), said:

In law, the general rule as again stated recently in Azoulay v. The Queen, [1952] 2 S.C.R. 495, is that the trial Judge in the course of his charge should review the substantial part of the evidence and give the jury the theory of the defence so that they may appreciate the value and effect of that evidence and how the law is to be applied to the facts as they find them.

Again, there was no reference to any lack of jurisdiction in this Court.

Despite the sentence in the judgment of McLennan J.A. in the Court of Appeal, “I have come to the conclusion that while the trial judge told the jury what the theory of the defence was, he did not discuss the evidence relating to that theory in a sufficiently comprehensive way and that the trial was unsatisfactory.”, I have come to the conclusion that what the learned justice in appeal found was the failure of the trial judge to give to the jury the evidence as to the defence in a sufficient character to permit them to consider that defence and that that complaint was a matter of law and that, therefore, there is an appeal to this Court under the provisions of s. 598(1)(b). The Court of Appeal of Ontario considered that such a failure to submit the defence

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of the accused to the jury had been established. I shall deal with that question hereafter.

At the present time I turn to the second ground of appeal relied upon in the judgment of the Court of Appeal, namely, that the trial judge erred in directing the jury that they could only acquit the accused if they found that she believed she was under a legal compulsion to obey the mayor’s orders, whereas it was sufficient if she honestly believed she was justified in following the mayor’s orders even though she was not bound to do so. If the evidence given by the accused and her counsel’s address to the jury are carefully perused, it will be demonstrated that her defence was, in fact, that she was told by Lavergne that he was authorized to take these moneys, that she believed he was so authorized (she regarded him as the mayor, or as her “boss”) and therefore that she was obliged to obey not merely that she was justified in obeying.

Since that was the defence which the accused submitted in her evidence and which her counsel emphasized in his address to the jury, it was that defence which the trial judge should have submitted to the jury. The trial judge did so even prefacing this statement with the words, “Now here the theory of the defence is as I understand it…” It may well be that the accused could have advanced a sound defence by merely establishing that she honestly believed she was justified in following the mayor’s orders even though not bound to do so, and even when that belief was without foundation: Regina v. Bernhard[11]. The distinction, in my view, is academic as there could be no belief in justification which the accused could imagine except her obligation as a municipal servant to obey the mayor’s orders. The trial judge, however, went farther having informed the jury of the defence of her belief in her obligation to obey the mayor’s order, he charged them toward the close of his summing up in these words:

If you take the other view that she was honestly under the domination of Lavergne, and I pointed out to you the position in which he was there, as Mayor, with the power and prestige that he held, and that she thought she was acting honestly, and what she was doing was alright, or if you have any reasonable doubt about that, then you must acquit the accused.

Therein, the trial judge stressed that the accused’s honest belief that her actions were honest “and what she was doing was alright” was a complete defence. What counsel for the

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accused sought to do in the Court of Appear and here was to submit that the trial judge should have presented the accused’s defence not as it was made but as it could have been made. The trial judge presented to the jury the defence as it was made and then added that even if on the facts what was shown was a position weaker than belief in obligation and merely was belief in justification, it would, if established, have been a sound defence. I am therefore of the opinion that this ground of appeal was not well taken and should not have been accepted by the Court of Appeal.

The Court of Appeal also allowed the appeal of the accused on the ground that the trial judge while he put the theory of the defence to the jury did not discuss the evidence relating to that theory in a sufficiently comprehensive way, particularly in relation to the Noël and Beaudry transactions. These transactions were two of the nine as to which evidence was adduced by the Crown to prove the total conversion of $10,790.52. It would seem an accurate summary of the learned trial judge’s charge to say that he regarded these two transactions as merely two of the nine and, in fact, he charged the jury very explicitly that even if the accused had not been proved to have converted the $3,000 represented in those two transactions but had been proved to have converted the sums involved in the other transactions, she should be found guilty. This shall be referred to hereafter but at this point we are only concerned with the importance of these two transactions. It must be remembered that the accused swore that she had not used the Beaudry cheque for $1,000 to replace any sum taken from the municipal coffers in order to give it to the mayor, Lavergne, and that she also swore that she merely cashed the $2,000 Noël cheque as a matter of courtesy when requested by the mayor to do so and gave the proceeds to the mayor to deliver them to Noël. Now there was the strongest evidence to throw doubt on the bona fides of the defence story as to either of these transactions and that evidence was referred to forcefully and properly by the trial judge in his charge, but the fact remains that if the defence evidence were true, then neither the amount of $1,000 in the case of Beaudry nor of $2,000 in the case of Noël was filched by the accused from the municipal treasury although both appeared in the deposits to make up the balance in the various accounts. Lavergne, when called as a defence witness, made no estimate at all of the amount received from

[Page 681]

the accused, and which he swore he used for various philanthropic gifts to citizens of the town, and persisted in this answer despite a very careful cross-examination. About the closest he came to such an estimate was to say that it was over $5,000 and not more than $2,600 per annum, i.e., $10,400.

The accused finally, in cross-examination, gave an estimated total of $6,300 as the amount which she had removed from the treasury upon the mayor’s instructions and delivered to the mayor, but this was a most tentative estimate subject to qualification as to her ability to remember. The $6,300 in this estimate seems to be made up as follows: two Millcraft cheques for $906.81 and $923.81; a $1,200 Ottawa Gas cheque which was actually $1,231.05; another cheque which she described as a $900 cheque, i.e., the C.L. Laroche cheque for $977; and another cheque which she described as a $2,400 cheque, i.e., the Laroche cheque for $2,404.65. Those amounts total $6,443.32.

McLennan J.A., giving judgment for the Court of Appeal, set out the nine different cheques which were involved in the charge. Those cheques are as follows:

(1)	Millcraft (Ontario) Limited...............................................	$      906.81	Nov.	26/56
(2)	Millcraft (Ontario) Limited...............................................	923.81	Jan.	28/57
(3)	A. Beaudry.......................................................................	1,000.00	Apr.	25/58
(4)	Ottawa Gas Company....................................................	347.99	Dec.	5/58
(5)	Ottawa Gas Company....................................................	1,231.05	July	28/58
(6)	L. W. Noël Limited..........................................................	2,000.00	Oct.	28/57
(7)	C.L. Laroche....................................................................	977.00	Oct.	4/58
(8)	C.L. Laroche....................................................................	1,000.00	Sept.	4/58
(9)	C.L. Laroche....................................................................	2,404.65	May	19/59

It will be seen, therefore, that the accused acknowledges the delivery to Lavergne of funds represented by cheques Nos. 1, 2, 5, 7 and 9 in that list. The Beaudry and Noël cheques are Nos. 3 and 6, so this leaves unaccounted for only cheques Nos. 4 and 8, 4 being an Ottawa Gas Company cheque for $347.99, and 8 being a C.L. Laroche cheque for $1,000. It is possible that the accused, in her most inaccurate memory of those cheques which she had used to cover deliveries of cash to Lavergne, forgot those two items. If the accused’s story had been believed that neither the Beaudry nor the Noël cheques represented any deduction from the assets of the town, it might have gone far towards supporting, in the minds of the jury, her defence that in all other cases she had acted on the orders of Lavergne and honestly

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believed she was justified in so doing, or at least it might have raised in the minds of the jury a reasonable doubt.

If, on the other hand, she was not believed on these two, the jury might well have felt that she had taken the $3,000 represented in those two cheques for herself personally and not to pass on to Lavergne, and so would have disbelieved her defence that she honestly believed she was under obligation to obey the orders of Lavergne. In the light of this situation, it would seem that the trial judge was required to outline the evidence adduced by the defence upon these two transactions in some particularity. Failure to do so would, in essence, be failure to put to the jury the defence of the accused. Yet the reference of the trial judge to these two transactions is regrettably brief. As to the Beaudry cheque, there is failure to point out the important fact that many persons had access to the drawer in which the cheque was kept and to the receptacles where the money in the various accounts reposed before such money was deposited in the bank, so that others beside the accused could have removed from these receptacles the amount equal to that represented by the cheque and cause the cheque to be placed amongst those to be deposited in the place of the cash. As to the Noël cheque, the brief reference thereto fails to mention the evidence of the accused that it was cashed from funds on hand merely as a courtesty, i.e., that it had been simply the delivery of money to the face value of a certified cheque after bank hours.

It is true, as has been pointed out above, that the evidence of the accused is contrary to much of the evidence proved on behalf of the Crown, and the jury might well have disbelieved the accused but since it was the gist of the defence the jury should have had called to their attention the evidence of the accused upon that theory of the defence, and, of course, quite properly, the evidence contra, so that they could have come to their decision whether the Crown had proved the charge beyond reasonable doubt. I, therefore, am in agreement with the judgment of the Court of Appeal that the trial judge’s failure to do so constituted non‑direction amounting to mis-direction and that a new trial must be had. That, of course, is sufficient to dispose of the appeal. However, some other grounds argued by counsel for the accused before the Court of Appeal and either not accepted by that Court or not dealt with in the Court of Appeal should be referred to, although briefly.

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McLennan J.A., in giving judgment of the Court of Appeal, said:

Counsel for the appellant argued that each of the nine transactions should have been made the subject of a separate count and since they were not the conviction is void for uncertainty because a general verdict on the indictment as it stands now does not reveal what amount the jury found that the appellant had stolen. This charge is, however, that the appellant between certain dates stole varying sums, in amounts and at times unknown, to a total sum of $10,790.52. In such a case it is proper to charge a general deficiency: Minchin v. The King, (1914) 23 C.C.C. 414. The proof of the nine transactions was necessary to show the general deficiency and apart from the first Millcraft cheque and the Noël cheque, if that was a substitution for cash previously taken, there was no relation in time between the takings and the substitutions of the cheques. If the charge had been that of falsifying records under section 340 it would of course have been necessary to set out in a separate count each of the transactions referred to, but that is not this case. The appellant did not apply for particulars before or during the trial under section 497 or to amend or divide the count under section 500. I would not be disposed to quash the conviction on these grounds because in substance the charge is of one continuous act of theft. In any event it is not a rule of law but one of practice that in cases like this the charge should be divided into as many counts as possible: Regina v. Tomlin, (1954) 38 C.A.C. 82. However, if there is a new trial it will be desirable and of assistance in directing the attention of the jury to the issues to be determined by them if either particulars are given under section 497 of the means by which the offence was committed by referring to each transaction or if that count be divided into separate counts so as to separate, at least, the first Millcraft transaction and the Noël and Beaudry transactions from the others.

I am in agreement with the view of McLennan J.A. and have nothing to add thereto.

If McLennan J.A.’s suggestion is complied with at the new trial, there will be no need to consider any question of the accused being found guilty as charged, when in fact some amount smaller than the total of $10,790.52 was proved beyond reasonable doubt. I must, however, express dissent from the submission made by counsel during the argument of this appeal that on the indictment if the evidence disclosed that only a lesser amount of money had been stolen the jury could have returned a verdict of guilty of that lesser amount but not guilty as charged. In my view, the instruction on the form of the indictment presented at the former trial that the accused could have been convicted had it been proved that she converted to her own use any sum was a proper instruction.

The submission that the accused could not have been convicted on the indictment as laid, in that it alleged that she had converted the funds to her own use while the evidence

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at trial showed that at any rate as to some indeterminate amount, perhaps $6,300, the accused had converted the funds of the town so that they could be used by the mayor, Lavergne, raises a rather difficult and important issue. To accede to the submission of the respondent’s counsel herein, would enable an accused person to establish a sound defence by merely proving that the funds converted were handed over to the third party, be he a creditor or an ailing parent or an informal philanthropist such as Lavergne alleged he was. The trial judge charged the jury on the basis of the definition of theft in s. 269(1) of the Code that it mattered not whether the accused had converted the funds to her own use or that of another. Counsel for the accused, however, takes the position that the Crown had not charged theft generally, which would have permitted such an instruction to the jury, but had specifically charged the accused with conversion to her own use. It must be remembered that until the accused gave evidence in her own defence the allegation of conversion to the use of Lavergne had never been advanced. The answer to this contention, in my opinion, is that given by the learned trial judge when he said in his charge:

In fact the first instance when she took it it was for use to do as she wished with. And the use she made of it was to give it or some of it, surreptitiously, I suggest, to Lavergne.

In short, when the accused took the funds she converted the funds to her use despite the fact that her use of them was to deliver them to Lavergne. I distinguish cases such as R. v. Haurany[12] and R. v. Lurie[13], on the ground that there the charge was obtaining by false pretences while the evidence showed that what the accused did was to obtain the delivery of property to another by a false pretence and never had possession himself. In the latter case, Goddard L.C.J., at p. 118, said:

In this case, the cheques have been made out to the company, there is no doubt that the company was the owner of those cheques; it was always intended to be the owner. The only banking account into which those cheques could have gone was the banking account of the company.

In the result, I would dismiss the appeal.

Appeal allowed, conviction restored, CARTWRIGHT, HALL and SPENCE JJ. dissenting.

Solicitor for the appellant: W.C. Bowman, Toronto.

Solicitor for the respondent: G. Arthur Martin, Toronto.