French v. R., [1980] 1 SCR 158

Supreme Court of Canada

French v. R., [1980] 1 S.C.R. 158

Date: 1979-07-18

Thomas French (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1979: May 29; 1979: July 18.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Pratte and McIntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Murder—Evidence as to confessions by the accused—Witness of dishonourable repute—Witness originally supporting accused’s alibi—Charge to the jury—Whether amounting to misdirection—Whether inconsistent with jury’s obligation to consider all the evidence—Criminal Code, s. 613(1) (b).

The appellant and Robert Urbanick were charged with murder. At trial Urbanick was acquitted and the appellant convicted and sentenced to life imprisonment. The deceased was discovered shot twice in the head and lying in the back of his pick-up truck. At trial the principal witness was Nadine Deveau who claimed to have heard the appellant plotting the murder with the wife of the deceased. She testified inter alia that the appellant had told her that the victim “died like a dog” and had also said “I shot him”. Deveau had originally supported an alibi for appellant but some eight or nine months later revealed to the police what she testified to in Court. Considerable defence evidence was led to discredit her, a young woman of unsavory repute, with a criminal record, a history of alcoholism and drug addiction and the reputation of being a liar. The issue on final appeal was limited to consideration of the question on which leave to appeal was granted: whether the Court of Appeal had erred in dismissing the appeal notwithstanding the following direction in the charge of the trial judge in relation to the evidence of Nadine Deveau “…if you are satisfied beyond a reasonable doubt that what she says is true, then you must act upon that; it is your duty to act, and in my view you have no alternative but to find, if you believe her beyond a reasonable doubt, that French was guilty of killing Landers.” The issue was not raised in the Courts below.

It was argued with force that the real question was not whether the jury believed Deveau but whether they believed that the confessions which she attributed to the

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appellant were true. The case of Rustad v. The Queen, [1965] S.C.R. 555, was relied upon.

Held: The appeal should be dismissed.

Rustad is distinguishable from the present case. There was here no discrepancy between the method of killing described in the confession and the cause of death and while there was some evidence of intoxication at the time shortly after the killing, when the appellant allegedly said to Deveau that he had shot the deceased, the jury was not sufficiently impressed by it to reduce the verdict to one of manslaughter. Further there was no evidence of intoxication at the time of the appellant’s last inculpatory statement some days later. Nor was there evidence to suggest as was the case in Rustad that the appellant was lying when he made the statements. If Deveau was not lying the conversation relating to the murder plot tended to corroborate the confessions. Having regard to all the circumstances, including the whole tenor of the defence, which was one of alibi, the direction in issue did not amount to a misdirection.

Rustad v. The Queen, [1965] S.C.R. 555 distinguished.

APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing an appeal by the accused from his conviction on a charge of murder.

Clayton C. Ruby and Dianne L. Martin, for the appellant.

David Watt, for the respondent.

The judgment of the Court was delivered by

BEETZ J.—This is an appeal brought with leave of this Court from a judgment of the Ontario Court of Appeal which affirmed the conviction of the appellant entered at trial before Mr. Justice Griffiths sitting with a jury.

The appellant and Robert Urbanick had been charged with committing the murder of one Kenneth Landers on August 9, 1975. At their joint trial, Urbanick was acquitted and the appellant was convicted and sentenced to life imprisonment.

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The Court of Appeal gave a detailed account of the facts in its judgment now conveniently reported in (1978), 37 C.C.C. (2d) 201. For the purpose of this appeal, it will suffice to summarize the facts as follows.

The deceased was discovered by the police on August 10, 1975, lying in the back of his pick‑up truck. He had been shot twice in the head.

At trial, the principal Crown witness was a woman by the name of Nadine Deveau. She claimed to have overheard the appellant plotting the murder with the wife of the deceased on the very day of the murder: the deceased was an informer and also, according to Nadine Deveau, his wife was prepared to share with the killer the product of an insurance policy on her husband’s life. It was the evidence of Nadine Deveau that, on the evening of August 9, 1975, the appellant told her that Landers “died like a dog”. She stated that the appellant had also said: “I shot him”. She further testified that at a later date when she had told the appellant that Mrs. Landers was not serious about what had happened and had no idea she would have to pay money, the appellant had replied: “She bloody better remember it”.

Nadine Deveau had originally supported an alibi for the appellant but some eight or nine months later she revealed to the police what she testified to in Court. She stated she did not tell the truth earlier to the police because she feared for her life and the life of her child.

Considerable evidence was led by the defence to discredit Nadine Deveau, a young woman of unsavory repute with a criminal record, a history of alcoholism and drug addiction, and the reputation of being a liar.

Leave to appeal was granted upon the following question of law:

Did the Court of Appeal for the Province of Ontario err in dismissing the appeal of the Applicant notwithstanding the following direction contained in the charge of the learned trial judge in relation to the evidence of Nadine Deveau:

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....if you are satisfied beyond a reasonable doubt that what she says is true, then you must act upon that; it is your duty to act, and in my view you have no alternative but to find, if you believe her beyond a reasonable doubt, that French was guilty of killing Landers.

We are limited to a consideration of this question. It was not raised in the Court of Appeal; nor had the specific direction contained in the learned trial judge’s charge and now in issue been objected to at trial.

The following excerpts from the charge to the jury indicate the context in which the language which is now in question was employed by the learned trial judge:

Now, in this case, the Crown’s case against both accused rests very substantially on the evidence of Nadine Deveau, as to conversations she alleges she had with each of the accused. Other than that, there is no direct evidence, as I recall it, against Urbanick; and as against Thomas French, the evidence is, in addition to Nadine Deveau’s testimony, almost wholly circumstantial…

…

Now, the theory of the defence of Thomas French is as follows:

The Crown’s case rests on the foundation provided by Nadine Deveau’s evidence. She is a self-confessed persistent liar, thief and drug addict, who originally gave the police an alibi for Tom French, and only many months later, in suspicious circumstances, accused Tom French. Because of her character and her propensity to lie, and because of her involvement in crime, it would be dangerous to convict on her evidence. No one who knows her would believe her under oath, and in any event, look to the evidence as regards the story of the original plot to murder Ken Landers; she is supported by no one and contradicted by Mrs. Landers…

...

Members of the Jury, the whole case really depends on what you think of Nadine Deveau’s evidence insofar as it incriminates one or the other of the accused. Obviously she is a key witness. If you do not believe her, or you are in doubt, then that is the end of it. The Crown asked you to believe her; he said she testified for five hours and she stood up well. She honestly admitted things during her cross-examination that were incriminating, for example, that she was wearing a stolen dress that could not otherwise have been proven.

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He suggests it took courage for her to testify; you must consider the threats to her. The Crown scoffs at the suggestion she was giving evidence just to avoid what would be a fairly minor conviction for her, conviction for driving while impaired on two occasions, he said it is incredible for you to believe to avoid conviction on those two minor charges, she is prepared to face the risk and to expose herself, as she has.

…

Now, Defence counsel attacks her credibility. They say she is an admitted thief, she lied about when she had last used drugs, even though she admitted she had been on drugs, but she deliberately lied as to when she had last been on them; she lied about whether she is using drugs currently. It is obvious she had recently been on marijuana, according to the evidence. She lied to the doctor when she was admitted to hospital, and they submit that her lies and the inconsistencies in her story make her evidence very suspect.

…

The fact is, members of the jury, she is, as I have said, the most crucial witness in this case; and even if she were an independent person, I would direct you in strong terms that you must scrutinize her evidence most carefully, but because she is a person with a criminal record and of ill repute, admittedly ill repute, then you should be even more careful in weighing her evidence which is uncorroborated or unsupported so far as the statements to her are concerned. Members of the Jury, even people with criminal records and people who are on drugs and people who have a bad reputation, are capable of telling the truth. If you assess this girl, on the basis of what you saw of her, as a truthful witness, if you are satisfied beyond a reasonable doubt that what she says is true, then, you must act upon that; it is your duty to act, and in my view you have no alternative but to find, if you believe her beyond a reasonable doubt, that French was guilty of killing Landers.

…

The whole case against Thomas French rests on the evidence of Nadine Deveau, plus some circumstantial evidence, his admission that he was at the Landers’ place at about nine o’clock, at about a time when men came in and Landers was taken away. That is it.

It was argued with force that the real question was not whether the jury believed the evidence of

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Nadine Deveau but whether they believed that the confessions which she attributed to the appellant were true. The case of Rustad v. The Queen[2] was relied upon.

In Rustad, the appellant had been charged with the non-capital murder of her mother-in-law and convicted of manslaughter. The only direct evidence connecting the appellant with the death was an alleged confession made to a friend and three alleged statements made to another friend. The appellant was intoxicated when she made the confession and the statements, and there was an inconsistency between the method of killing described in the confession and the cause of death as revealed by medical evidence. It was held by Ritchie J., speaking for the majority, at p. 563, that:

the charge to the jury should…have contained specific direction to the effect that the truth of the appellant’s alleged admission was to be considered in light of this discrepancy and in light also of the appellant’s intoxication at the time when the admission was alleged to have been made.

In the case at bar, there is no discrepancy between the method of killing described in the alleged confession and the cause of death; the appellant is reported to have said: “I shot him” and in fact the victim was shot. While there is evidence of intoxication at the time when the appellant allegedly said to Nadine Deveau that he had shot Kenneth Landers, (which would have been shortly after the actual killing), the jury was not sufficiently impressed by it to reduce the verdict to one of manslaughter. Furthermore, there is no evidence that the appellant was intoxicated when he is reported to have made his last inculpatory statement to Nadine Deveau some days after the date of the murder. Moreover, there is no evidence tending to suggest, as was the case in Rustad, that the appellant was lying when he made the incriminating statements. Finally, if Nadine Deveau was not lying, then the conversation relating to the murder plot tended to corroborate the confessions.

For these reasons, I am of the opinion that Rustad is clearly distinguishable and that the

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learned trial judge was under no duty to warn the jury that the accused might have been lying when he confessed to Nadine Deveau.

On the other hand, it is argued that the learned trial judge has gone too far in telling the jury that if they believed the witness Deveau, they had no alternative but to find the appellant guilty of killing Landers: such direction might have prevented the consideration of the possibility that the appellant was lying when he made the incriminating statements to Nadine Deveau. But this possibility was purely theoretical in the context of the case. The appellant testified. His defence was an alibi. As for the incriminating statements, he simply and flatly denied having made them but neither he in his testimony nor his counsel before the jury ever suggested that, if he had made them, they were untrue. The whole tenor of the defence was that Nadine Deveau was the liar, not the accused. The record discloses no evidence tending to show that the appellant lied if he made the incriminating statements and there is accordingly no basis from which the argument might derive substance or reality.

Given those circumstances, I cannot be persuaded that the direction in issue amounted to a misdirection. But even if the learned trial judge did err, I am nevertheless satisfied when the charge is read as a whole that this is a case in which no substantial wrong or miscarriage of justice resulted from the error and the provisions of s. 613 (1)(b) of the Criminal Code should be applied.

It was also submitted that the direction in issue was inconsistent with the jury’s obligation to consider all the evidence. But the learned trial judge repeatedly instructed the jury to consider all of the evidence and his instructions as a whole.

I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Clayton C. Ruby, Toronto.

Solicitors for the respondent: The Ministry of the Attorney General for Ontario, Toronto.