Kendall v. The Queen, [1962] SCR 469

Supreme Court of Canada

Kendall v. The Queen, [1962] S.C.R. 469

Date: 1962-03-26

Arthur James Kendall (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1962: March 14, 15, 26.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Capital murder—Offence committed in 1952—Prosecution in 1961—Evidence of children now grown up supporting killing—Body never recovered—Whether jury properly instructed—Jurisdiction of Appeal Court—Criminal Code, s. 597A as enacted by 1960-61 (Can.), c. 44, s.11.

The accused was convicted in 1961 of the capital murder of his wife in 1952. The accused, in 1952, was a married man with five children then 12, 10, 8, 5 and 1½ years old. He was convicted on the evidence of the three eldest children whose evidence indicated that their mother had been murdered by their father. The wife’s body was never found. The evidence given by the children at the trial in 1961 differed materially from their stories as given in 1952. It was argued by the accused that the evidence was an unsafe foundation for the conviction. The Court of Appeal affirmed the conviction. The accused appealed to this Court.

Held: The appeal should be dismissed.

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The contradicting story given by the children in 1952 and their evidence given in 1961 raised a serious question of credibility, but this was clearly and adequately put to the jury on evidence that the children were under fear and intimidation in 1952. The jury was fully seized of this matter and there could be no attack on the judge’s instruction on this ground.

The children who gave evidence in 1961 were testifying as people of mature intelligence to what they had observed as children. Questions of weight and credibility in these circumstances were entirely for the jury. It would have been wrong for the trial judge to warn the jury that they must treat this evidence as though it had been given by children of immature years and to have warned them of the special risk in acting on the uncorroborated evidence of a young child, even when sworn.

When the charge is read as a whole, there was no substance to the argument that the trial judge had failed to instruct the jury to convict the accused of non-capital murder in case they had any doubt of his having committed capital murder.

The Court of Appeal could only exercise its jurisdiction to set aside the conviction on the ground that the evidence was an unsafe foundation for conviction, if it found that the jury could not reasonably have convicted of capital murder on the evidence. In this case, there was very substantial evidence to go to the jury of planned and deliberate murder, and it would have been unwarranted interference with the function of the jury to substitute the finding of the Court of Appeal for that of the jury on this point.

APPEAL from a judgment of the Court of Appeal for Ontario, affirming the conviction of the accused on a charge of capital murder. Appeal dismissed.

C.L. Dubin, Q.C., for the appellant.

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

The judgment of the Court was delivered by

JUDSON J.:—The appellant was convicted in the year 1961 of the capital murder of his wife committed in the year 1952. His appeal to the Court of Appeal was dismissed by unanimous judgment and he now appeals to this Court pursuant to s. 597(a) of the Criminal Code enacted by 9-10 Elizabeth II, Chapter 44.

In 1952 the accused was a married man with five small children. The three eldest were James, Margaret and Ann, then 12, 10 and 8 years old. There were two other children then 5 and 1½ years old. All these children were living in a small, one-room cabin with their father and mother on August 2, 1952, and the three eldest gave evidence in the year 1961 that would show that their father had killed their mother early in the morning nine years before.

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In 1952 the appellant was a farmer in the County of Perth near Listowel. He had lost some of his farm buildings by fire and in the summer of 1952 he went to work in a sawmill at Johnson’s Harbour, in a remote part of the Bruce Peninsula, 15 to 20 miles south of Tobermory and 4½ miles in from the highway that runs between Wiarton and Tobermory. He first of all occupied the small cabin as living quarters with three young men, who were also working at the sawmill. His wife was still living on the farm 90 miles away. During this period he began an adulterous association with a married woman in Wiarton. She knew him as a widower with 5 children. When the school term ended, the appellant brought his wife and 5 children to Johnson’s Harbour and they all lived in the small, one-room cabin and for part of the time two of the three young men also lived there. But some time before August 2, 1952, the young men went home, leaving as occupants of the cabin Kendall, his wife and the children. During this period he was continuing his association with the married woman in Wiarton. It was also during this period that he made a visit to his farm with this woman and made an attempt to get her installed as a housekeeper with a neighbouring farmer with whom he had business dealings. When he made this visit back to the farm his wife remained at Johnson’s Harbour with the children.

The three elder children gave evidence of what they saw during the early dawn of the day on which they left the cabin. This day was August 2, 1952. The submissions on this appeal make some review of this evidence necessary. Margaret said that she saw her father dragging the limp body of her mother out of the cabin and past the window, that he rolled up two blankets from the bed and took them out, that there was blood on the floor at the foot of the bed and that subsequently, she found that the butcher knife was missing, and that her father returned to the cabin a short time later and mopped the floor.

Ann’s evidence is that she heard her mother cry, “Arthur, please don’t”. She saw her father lay a knife with blood on it on the table and then drag her mother out of the cabin and down the road. He returned to the cabin and gathered up a bed sheet and some of her mother’s clothes and the knife, wiped blood from the floor and left the cabin again. Her sister Margaret put her hand over her mouth to keep her quiet.

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James, when he awakened, heard his mother cry, “Don’t Art.” He saw his father drag the limp body of his mother out of the cabin. He saw the bloody knife on the table and blood on the floor. His father was wearing hip rubber boots. When the father returned to the cabin he wiped the blood off the knife and off the floor. He also saw the father take bed clothes away.

Margaret said she remained quiet because it had been a strict family rule that the children would not get up or make any noise until their parents called them. She placed her hand over her younger sister’s mouth to prevent her from crying out. James said that he was too frightened to make a noise because he was wondering if his father was going to come back and “get the rest of them”.

After his return to the cabin the appellant got the children out of bed, arranged their breakfast and went to work as usual. He told Margaret that if anybody asked where her mother was she was to say that she left on Thursday, which was two days before. On his return to the cabin from his work at the sawmill the appellant put the children in the car and went to Wiarton to the other woman. He moved in with her along with the 5 children, of whom this woman had only seen one, on a previous occasion. Next day the appellant returned to the cabin with his son James and a son of this woman to collect some of his belongings. He left a note that he was leaving his employment because he had to get in his flax harvest and had had family troubles. There is evidence that on this Sunday, August 3, the wife’s purse, which was the only one that she had with her, was still in the cabin. A few days later both families moved back to the family farm in the County of Perth. Some time later Kendall asked the owner of the sawmill to send his wife’s ring which had been left in the cabin. Nothing was ever heard again of the appellant’s wife.

There is evidence that the appellant spread word in his neighborhood that his wife had left him for another man. Those neighbours who gave evidence indicated disbelief in any such story. When one of them made it clear to Kendall that he did not believe him, Kendall changed his story and said that his wife had gone back to her mother. This neighbour then telephoned the wife’s relatives, who came to inquire about her and reported the matter to the police. The police made inquiries and searches but never found the

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body. They also questioned the children at the time but the children would not give any information about their mother’s disappearance beyond the fact that she had gone away alone on the Thursday before they left the cabin. One of them gave evidence in some detail of what she was wearing at the time she left.

Ann was the first of the children who talked to the police in 1961. She did so after a disagreement with her stepmother and after leaving her father’s house. At this time the daughter Margaret was married and living in Winnipeg. Ann telephoned her sister Margaret and told her that she had informed the police of what had happened in 1952. James continued to live with his father until after the preliminary hearing.

The contradiction between what the children said in 1952 and what they said in 1961 raised a serious question of credibility. This was clearly and adequately put to the jury on evidence that the children were under fear and intimidation. They never discussed what they had seen among themselves and they never mentioned it to any outside person until 1961. The jury was fully seized of this matter and there could be no attack on the judge’s instruction on this ground.

The substantial attack on the children’s evidence was that the trial judge failed in his duty to warn the jury as to the care with which such evidence should be weighed. The argument is that the evidence of the children given when they were grown up suffers from the same frailty which would have attached to it had they given their evidence as children and that it could not be any stronger when given in 1961 than it would have been if given in 1952.

The basis for the rule of practice which requires the judge to warn the jury of the danger of convicting on the evidence of a child, even when sworn as a witness, is the mental immaturity of the child. The difficulty is fourfold: 1. His capacity of observation. 2. His capacity of recollection. 3. His capacity to understand questions put and frame intelligent answers. 4. His moral responsibility. (Wigmore on Evidence, 3rd ed., para. 506.)

The last point, a sense of moral responsibility, disappears when the children are of mature years and understand the duty to speak the truth. When these children gave evidence they were respectively 21, 19 and 17 years of age. They were

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in the same position at that age as any other witness. Their capacity of communication was likewise the same as that of any other witness. It is quite clear that they were testifying as mature persons to what they had observed as children. But they were not testifying to a routine matter that had happened 9 years before. If they were telling the truth, what they had seen must have made an indelible impression on their minds at the time and must have been something that they could never forget. Again, the trial judge clearly and adequately instructed the jury, if any such instruction was needed, that these witnesses were mature witnesses testifying to something that had happened 9 years before. Questions of weight and credibility in these circumstances were entirely for the jury. It would, in my opinion, have been wrong for the trial judge to warn the jury that they must treat this evidence as though it had been given by children of immature years and to have warned them of the special risk in acting on the uncorroborated evidence of a young child, even when sworn. This would be a totally unwarranted and undesirable extension of the rule of practice. The need for this special warning disappears when the children give evidence as mature persons. It then becomes a matter of weight and credibility for the jury.

In this case we do not, in fact, know what a trial judge, sitting in 1952, would have done with the evidence of these children. What we do know is that in 1961 they were fully competent, testifying to recollections of revolting events that happened 9 years before and there was ample instruction given on the question of credibility, testimonial capacity and recollections.

I turn now to the submission that the learned trial judge in his charge failed to direct the jury in express terms that if they entertained any doubt between capital murder and non-capital murder, they must give the accused the benefit of the doubt and convict of non-capital murder only. Any force in this submission entirely disappears when the charge is read as a whole. Counsel for the accused did not question the correctness of the judge’s charge of capital murder. He told them correctly and clearly what they must find beyond a reasonable doubt before they could convict of this offence. He told them that if they entertained any reasonable doubt on any of the ingredients of the offence, they must acquit of capital murder. He told them correctly what

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they had to find to bring in a verdict of non-capital murder and told them correctly that if they entertained a reasonable doubt on this, they must acquit. When read as a whole there could be no doubt left in the jury’s mind that if they entertained a reasonable doubt on capital murder but still found that the accused intended to kill his wife or meant to cause her bodily harm that he knew to be likely to cause death and was reckless whether death ensued or not, they must find non-capital murder, and that if they entertained any reasonable doubt on either score, they must acquit. There is no substance to this objection.

It was also submitted that this is a case where the Court of Appeal should have exercised its jurisdiction to set aside the conviction because of an irresistible conclusion that the evidence was an unsafe foundation for a conviction. Undoubtedly the Court of Appeal has this jurisdiction but in order to exercise it here, it would have to find that the jury could not reasonably convict the appellant of capital murder on the evidence. It is, of course, no answer to the exercise of this jurisdiction by an appellate court for the prosecution to say that there was some evidence to go to the jury and that the appellate court should not interfere. But this is not such a case. There was very substantial evidence here to go to the jury of a planned and deliberate murder and it would be unwarranted interference with the function of the jury to substitute the finding of an appellate court for that of the jury on this point.

The appellant also seeks a new trial on the ground that his defence was prejudiced by the introduction into evidence of two pillows taken from his residence in 1961. The evidence was that there were bloodstains on these pillows and that such blood had been on the pillows for a period of from 6 months to 15 years. This objection should be rejected. The pillows must be considered in relation to the whole of the evidence, including that of the children. The objection to them is entirely a matter of weight. They undoubtedly had some relevancy but I notice that in his address to the jury, counsel for the Crown did not mention them, the learned trial judge did not mention them but counsel for the defence did deal with them and made his submission that they had no weight in the circumstances of the case. The evidence was not improperly admitted. It was not

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unduly emphasized as to weight and it must be considered, not in isolation, but as part and parcel of a large volume of evidence given during the course of a lengthy trial.

At the conclusion of the argument in the Court of Appeal, Laidlaw J.A., in delivering the unanimous judgment of the Court, noted that the charge was complete and correct in all matters touching the issues to be determined by the jury and that there was no room for misunderstanding or want of understanding on the part of the jury as to the principles of law properly applicable to the evidence and that the verdict was given according to law. I respectfully agree with this conclusion.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: McAvoy, Craig & McKerroll, Owen Sound.

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