Ward v. Her Majesty The Queen, [1979] 2 SCR 30

SUPREME COURT OF CANADA

Ward v. Her Majesty The Queen, [1979] 2 S.C.R. 30

Date: 1979-02-20

David Alexander Ward Appellant; and

Her Majesty The Queen Respondent.

1978: November 28; 1979: February 20.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Evidence — Charge of causing death by criminal negligence — Acquittal — Statements to police by accused excluded by trial judge — Appellate Division concluding that evidence not sufficient to justify trial judge having reasonable doubt statements admissible — Conclusion one upon what is at best mixed question of fact and law — Question not one which can be investigated by Court of Appeal on appeal by Crown from acquittal — Criminal Code, s. 605(1)(a).

The accused was acquitted after trial without a jury on a charge under s. 203 of the Criminal Code of causing death by criminal negligence in the operation of a motor vehicle. The grounds of appeal advanced by the Crown in its appeal to the Appellate Division of the Supreme Court of Alberta included, inter alia, the following: the trial judge erred in law in not admitting into the evidence the statements made by the accused in answer to the questions asked by police officers, in that he erred in applying the test of the weight to be given to such answers and failing to apply the test of voluntari­ness as required by law. The Appellate Division allowed the Crown's appeal, whereupon the accused appealed to this Court.

Held: The appeal should be allowed and the acquittal restored.

The judgment of the Appellate Division was based upon the conclusion that the test applied to the admissi­bility of the statements by the trial judge was the wrong test and that, in fact, he was determining the weight or probative value which properly would be assigned to the statements after it had been determined they were in law admissible. That was a pure question of law upon which the Appellate Division had jurisdiction. However, that conclusion by the Appellate Division was in error. The trial judge did not give separate and formal reasons for judgment for his conclusion but rather engaged in a discussion with Crown counsel during his consideration

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of the question of admissibility. In the course of that discussion rulings were made as to whether the state­ments made to the police officers, when the accused was sitting in the police car very shortly after he recovered consciousness, were freely and voluntarily given.

The trial judge engaged in a consideration of both the mental and physical condition of the accused, firstly, to determine whether a person in his condition would be subject to hope of advancement or fear of prejudice in making the statements, when perhaps a normal person would not, and secondly, to determine whether, due to the mental and physical condition, the words could really be found to be the utterances of an operating mind. The trial judge had a reasonable doubt of both issues and, therefore, found the statements to be inad­missible. A reasonable doubt on the part of the trial judge upon the issue was sufficient to justify his refusal to admit the statements in evidence.

The Appellate Division, therefore, was in error when it found that the trial judge did not apply the proper test. When gathered together his reasons indicated that he did use the proper test as outlined in Boudreau v. The King, [1949] S.C.R. 262, and considered proper matters in arriving at his conclusion, although his reasons could well have been considered, in the view of this Court, erroneously, as being a decision based on the probative value rather than the admissibility of the statements.

Lieberman J.A., who delivered the reasons of the Appellate Division, stated that in his view there was absolutely no evidence, either direct or circumstantial, upon which the trial judge could arrive at a conclusion that the accused at the times material to the statements did not know what he was saying and further stated that the rulings of the trial judge were based upon findings of fact unsupported by evidence. A finding that there was no evidence was a finding upon a question of law but, in the view of this Court, it was impossible to say that in this case there was no evidence. There was a mass of evidence upon the voir dire. Lieberman J.A.'s words were understood only as being a conclusion that the evidence was not sufficient to justify the trial judge having any reasonable doubt that the statements were admissible. Understood in that fashion, the conclusion of Lieberman J.A. was one upon what was at best a mixed question of fact and law and that was not a question which could be investigated by the Court of Appeal on an appeal by the Crown from an acquittal, being beyond the right of appeal granted by s. 605(1)(a) of the Criminal Code.

The Queen v. Fitton, [1956] S.C.R. 958; Fiché v. The Queen, [1971] S.C.R. 23; Boudreau v. The King, supra, referred to.

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APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], allowing an appeal by the Crown from the acquittal of the appellant on a charge of criminal negligence caus­ing death. Appeal allowed.

L. M. Sali, for the appellant.

Paul S. Chrumka, Q.C., for the respondent.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal from the judg­ment of the Appellate Division of the Supreme Court of Alberta pronounced on October 7, 1977. By that judgment, the said Appellate Division allowed an appeal by the Crown from the acquittal of the present appellant after trial by Manning J. without a jury on April 13, 1977.

The appeal by the Crown is governed by s. 605(1)(a) of the Criminal Code which provides:

605. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone.

The grounds of appeal advanced by the Crown in its appeal to the said Appellate Division were the following:

(1) That the learned Trial Judge erred in law in not admitting into the evidence the statements made by the Respondent in answer to the questions asked by Police Officers, in that he erred in applying the test of the weight to be given to such answers and failing to apply the test of voluntariness as required by law;

(2) That the learned Trial Judge erred in law in not admitting into the evidence the statement in writing given by the Respondent in compliance with his obligation under the Highway Traffic Act, then in force for the reason that this statement would not be of sufficient weight;

(3) That the learned Trial Judge erred in law in dismissing the charge after the voir dire in the trial although the Crown's case had not been closed, and on objection from the Crown continuing to hear the

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rest of the evidence, whereby justice was not seen to be done.

Giving the reasons for the Appellate Division, Lieberman J.A. dealt with the second ground of appeal in the following paragraph of his reasons:

I recognize that not having come to a conclusion as to the voluntariness or otherwise of the statements in issue herein, this portion of my judgment is purely academic, however, I venture to express the respectful opinion that the position with respect to statements made under the compulsion of the Highway Traffic Act on the trial of a charge under the Criminal Code is that if they are held to be voluntary they are admissible; if they are held to be involuntary they are in whole and in part, notwith­standing the provisions of the Highway Traffic Act inadmissible.

Therefore, the reasons of the Appellate Division granting the Crown's appeal and directing a new trial do not decide this second ground of appeal. It was not urged by the Crown in argument in this Court and it need not be further considered.

Lieberman J.A. dealt with the third ground of appeal advanced by the Crown in the following paragraph of his reasons:

(3) Premature Dismissal of Charge.

This ground of appeal can be disposed of by reference to the words of the learned trial judge which I have already quoted. There can be no doubt that after realiz­ing his error the learned trial judge heard the remainder of the evidence with an open mind. His premature dismissal of the charge did not in any way affect his final decision.

This ground of appeal was decided against the Crown, the appellant in the Appellate Division. It was not further dealt with in the argument before this Court.

The appeal to this Court, therefore, is concerned with the first ground of appeal. It must be noted that under s. 605(1)(a) of the Code, which I have quoted above, the appeal must be "on any ground of appeal that involves a question of law alone". The first question to be determined is whether ground one is a ground of law alone or is, at its best, a ground of mixed law and fact.

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Fauteux J., as he then was, in The Queen v. Fitton[2], dealing with exactly the same problem as to whether the admissibility of a statement made by the accused was a question of law alone within the then s. 598(1)(a), said at pp. 983-4:

.. it is the submission of counsel for the respondent that this Court has no jurisdiction to entertain this ground of appeal for the reason that it does not involve a question of law in the strict sense, but a pure question of fact or at the most a question of mixed law and fact. tith this submission I am unable to agree. Whether or not evidence is admissible is always a question to be determined in the light of what the law is with respect to the particular nature of the evidence tendered. While as to certain subject-matters of evidence such as confes­sions, this determination requires a prior examination of the facts which, if judicially found to be within the rule of law governing the admission of such evidence, will render the same admissible, any question as to what the rule is in the matter involves a question of law in the strict sense.

The Queen v. Fitton in the Court of Appeal for Ontario was an appeal by the accused after his conviction at trial. That appeal was authorized by the provisions of what is now s. 603(1)(a) which allowed an appeal by an accused on any ground of appeal that involved a question of law alone or on a question of fact or of mixed fact and law with leave of the court. This Court, in Fitton, was concerned with the problem of whether the Court of Appeal for Ontario had adopted the proper test in considering the admissibility of the statement and, as Fauteux J., as he then was, pointed out that was a question of law. The consideration by the Court of Appeal for Ontario had been, in my view, a question of mixed law and fact. In the appeal to the Appellate Division in the instant case the Crown was, by the provisions of s. 605(1)(a), limited to the question of law alone and not to questions of fact or of mixed law and fact and the jurisdiction of the Court was similarly limited.

I now turn to consider the reasons for judgment of the Appellate Division as delivered by Lieberman

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J.A. The learned justice on appeal, in a very detailed consideration of the whole trial, said:

A review of this evidence and of the ruling and comments of the learned trial judge make it abundantly clear that his ruling was based upon the conclusion he drew as to the state of mind of the respondent at the time that the statements in question were given and the effect that such state of mind would have upon the reliability of the statements and the weight to be given them.

He later continued:

In my view the state of mind of the respondent in the case at bar at the time that the statements in question were made is a relevant factor to be taken into consider­ation when coming to the conclusion as to the voluntari­ness of the statement and therefore the learned trial judge was not in error in doing so; but that is not the end of the matter.

The principle that emerges from the cases dealing with "state of mind" as it affects the voluntariness of a statement is that unless the "state of mind" is such that it can be concluded that the person making the statement did not know what he was saying to the extent that the words used did not, because of his condition, amount to his statement, the statement should not be excluded on that ground alone.

It may be that the conduct of or the words used by the persons in authority, which would not to a normal person amount to inducements or threats, would be taken as such by a person in an abnormal state of mind and that therefore the statement would not be voluntary. There is, however, no evidence of that set of circum­stances in this case and indeed the learned trial judge does not arrive at his ruling on the voir dire upon this basis.

In my respectful view there is absolutely no evidence, either direct or circumstantial, upon which the learned trial judge could arrive at a conclusion that the respond­ent at the time material to the statements did not know what he was saying in the sense that his words did not amount to his statement, the evidence is all to the contrary. There is no doubt in my mind that the ruling of the trial judge was based primarily upon a question of what weight should be given to the statements.

The ruling of the learned trial judge was based upon findings of fact unsupported by the evidence and upon a misapplication of the rule as to the admissibility of statements and accordingly was an error on a question of law alone.

A new trial must therefore be ordered.

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It is, therefore, apparent that the judgment of the Appellate Division is based upon the conclu­sion that the test applied to the admissibility of the statements by Manning J. was the wrong test and that, in fact, he was determining the weight or probative value which properly would be assigned to the statements after it had been determined they were in law admissible. That, as I have said, is a pure question of law upon which the Appellate Division had jurisdiction. In my view, that conclu­sion by the Appellate Division is in error.

The matter is difficult to determine because Manning J. never did give separate and formal reasons for judgment for his conclusion but rather engaged in a discussion with Crown counsel during his consideration of the question of admissibility. It is perhaps noteworthy that counsel for the accused, here appellant, said very little during this discussion which covered many pages of the evi­dence and it was apparent that the learned trial judge was able to arrive at his conclusion without calling upon counsel for the accused to present argument.

The learned trial judge was trying the accused upon a charge under s. 203 of the Criminal Code, that of causing death by criminal negligence, without the intervention of a jury. None the less he did purport to have a formal voir dire as to the admissibility of the statements and that voir dire continued over many days being interrupted on several occasions to permit the Crown to produce further witnesses who might give evidence upon the subject. In addition, the accused gave evidence upon the voir dire and called witnesses. His coun­sel finally stated, "No further evidence on the voir dire, my lord", to which counsel for the Crown added "No rebuttal evidence, my lord". The Court then called on the Crown to make its submission and throughout that submission the learned trial judge made statements from which I have abstracted what I believe to be the learned trial judge's ruling. Firstly, he said:

Oh, I think considering the evidence, as a whole, Mr. Sood, that I am not—I am not satisfied that what this young man said to the police officers were something that he was fully responsible for. I don't think it has been established that what he said was said freely and voluntarily. There is no criticism to be offered to the

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police. It is their duty to inquire of him what he did remember and he made some statements to them, but these statements we feel should not be admitted as evidence against a person until we are satisfied that they are made freely and voluntarily and there are many different circumstances that have been considered by the courts. I remember one case—I can't remember the name of it now, but it is a decision of the late Chief Justice Duff when he was a trial judge in British Columbia and there is a young man who was in a somewhat weakened state. He was in a disturbed state and he was being taken by two police officers from one building to another. They were in uniform and they—the late Chief Justice seemed to think that the fact these two men were in uniform and that this boy was in a state of some disturbance was enough to rule out the things that he said as being said freely and voluntarily. So my feeling is that whatever was said under the—at the time in question is something that I should not listen to.

MR. SOOD: Is that your ruling, my lord?

THE COURT: That is my ruling, yes.

(The underlining is my own.)

Perhaps counsel for the Crown was in some doubt as to whether the matter was thereby con­cluded because he continued to make submissions to the learned trial judge to which the learned trial judge replied and on the next page of the tran­script the learned trial judge said:

THE COURT: I think you are going to have to argue this before the Appellate Division if you want to say anything further, Mr. Sood, because my feel­ing is that it is not a statement that I should consider.

Counsel for the Crown then proceeded to adduce further evidence and it turned out immedi­ately that such evidence was addressed to the admission of a statement which the accused was required to make, had he been the driver, under the provisions of The Highway Traffic Act of Alberta, the exclusion of which was the second ground of appeal to the Appellate Division. It would seem that in the consideration of the admissibility of that statement both the Court and the Crown strayed back into the issue of the admissibility of the statement made to the police officers at the scene of the accident. The learned

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trial judge made his ruling as to the admissibility of the statement obtained by virtue of the provi­sions in The Highway Traffic Act in these words:

... and consequently I think, Mr. Sood, that I should not listen to what the constable has to say about the statement he got from the accused which the accused was obliged to give him by virtue of the provisions of the Vehicle and Highway Traffic Act.

Although discussion between counsel for the Crown and the learned trial judge seems to have continued thereafter, that discussion perhaps should be assigned to another and a related topic. The learned trial judge addressing counsel for the Crown, said:

THE COURT: Am I right that you are suggesting this, that you thought that perhaps the voir dire would result in everything that was said becoming admissible and now that I have decided against you on that you want to return, and I don't say this critically, of course, at all, you want to return to the position that you were originally taking, and that is that the spontaneous statements should be admitted without a voir dire?

There, the learned trial judge was dealing with the argument of the Crown that the very state­ments which the learned trial judge had already ruled inadmissible upon the voir dire should be admitted even without a voir dire on the ground that they were made in a fashion which Crown counsel termed "spontaneously" and which he described as "something which is said completely voluntarily without any invitation having been extended for the purpose is not necessarily to be subjected to a voir dire to be brought on the record. It is part of what is known in common law and English law as res gestae ... And therefore a voir dire is not required ...".

The learned trial judge disposed of the applica­tion to have these statements admitted as part of the res gestae in the words,

Well, Mr. Sood, I think there is a lot of merit in your suggestion, but I am going to resolve the doubt in favour of the accused in this case, and say that I think that I should not hear about it.

It is my opinion that the rulings as variously stated above are rulings as to whether the state­ments made to the police officers, when the accused was sitting in the police car very shortly

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after he recovered consciousness, were freely and voluntarily given. It is true that the learned trial judge was much concerned as to the physical condition of the accused at the time he is alleged to have made these statements but, as Lieberman J.A. pointed out in his reasons given for the Appellate Division, the state of mind of a person is one of the factors to be taken into consideration in coming to a conclusion as to its voluntariness. Lieberman J.A. specifically adopted the statement of Rand J. in Fitton, supra, at p. 962:

The cases of torture, actual or threatened, or of una­bashed promises are clear; perplexity arises when much more subtle elements must be evaluated. The strength of mind and will of the accused, the influence of custody, and surroundings, the effect of questions or of conversa­tion, all call for delicacy in appreciation of the part they have played behind the admission, and to enable the court to decide whether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them.

He also adopted the view of Bull J.A. in R. v. Santinon[3], at pp. 115 and 116.

The learned trial judge did indicate that he was considering the condition of the accused on that very topic and its effect on whether the accused did have any hope of advancement or fear of prejudice when he referred to the decision of Duff J., as he then was, in the first quotation I have made from his ruling.

In Fiché v. The Queen[4], Hall J. gave a judgment for the majority of the Court expressly adopting the well-known statement of Rand J. in Boudreau v. The King[5], when he said at pp. 269-70:

The cases of Ibrahim v. Rex, [1914] A.C. 599, Rex v. Voisin, [1918] 1 K.B. 531 and Rex v. Prosko, 63 S.C.R. 226, lay it down that the fundamental question is wheth­er the statement is voluntary. No doubt arrest and the presence of officers tend to arouse apprehension which a warning may or may not suffice to remove, and the rule is directed against the danger of improperly instigated or induced or coerced admissions. It is the doubt cast on the truth of the statement arising from the circumstances

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in which it is made that gives rise to the rule. What that statement should be is that of a man free in volition from the compulsions or inducements of author­ity and what is sought is assurance that that is the case. The underlying and controlling question then remains: is the statement freely and voluntarily made?

I have underlined the last sentence in Rand J.'s statement to indicate that in my view the examina­tion of whether there was any hope of advancement or fear of prejudice moving the accused to make the statements is simply an investigation of whether the statements were "freely and voluntari­ly made". In my view, there is a further investiga­tion of whether the statements were freely and voluntarily made even if no hope of advantage or fear of prejudice could be found in consideration of the mental condition of the accused at the time he made the statements to determine whether or not the statements represented the operating mind of the accused. In my view, Manning J. engaged in a consideration of. both the mental and physical condition of the accused, firstly, to determine whether a person in his condition would be subject to hope of advancement or fear of prejudice in making the statements, when perhaps a normal person would not, and, secondly, to determine whether, due to the mental and physical condition, the words could really be found to be the utter­ances of an operating mind. Manning J. had a reasonable doubt of both issues and, therefore, found the statements to be inadmissible. It is not denied that a reasonable doubt on the part of the trial judge upon the issue is sufficient to justify his refusal to admit the statements in evidence.

I, therefore, am of the opinion that the Appellate Division was in error when it found that the learned trial judge did not apply the proper test and that when gathered together, as I have done, his reasons indicate that he did use the proper test as outlined in Boudreau, supra, and considered proper matters in arriving at his conclusion, although I am quite ready to agree that the learned trial judge's reasons could well have been considered, in my view, erroneously, as being a decision based on the probative value rather than the admissibility of the statements. It is significant

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that the learned trial judge indicated his opinion as to the limited probative value of the statements had he admitted them, when he pointed out that his ruling excluding them could not result in a miscarriage of justice, saying:

Now, I am going to add this remark, which I hope is not out of place in these proceedings and that is that we did hear evidence yesterday in the voir dire, and, of course, I can't banish that. from my mind. I did hear it. There is evidence that this boy was in a state of shock. Now, the police officers did not notice it. They did not think so. But there are lots of times we know when a person is in a state of shock he is really completely irresponsible for what he says when it does not appear to be so to people that see him. Consequently I think that no matter what he said at that time I have great doubts as to what weight should be given to it. If he says I drove the car, I think I would be inclined to say well, he said that, but he now says he can't remember, and he said later that morning he didn't know what happened. He didn't know what had taken place. And I wouldn't feel that a person should be convicted of a very serious offence as this is on the basis of an admission that he was the driver of the car when there is so much which points to the fact that he does not really know whether he was driving or whether he was not. It raises a doubt as to whether he was the driver or not.

As I have said, Lieberman J.A. gave reasons in very considerable detail and throughout quoted extensively from the record of the evidence in the voir dire. I have already quoted Lieberman J.A.'s statement that in his view there was absolutely no evidence, either direct or circumstantial upon which the learned trial judge could arrive at a conclusion that the accused at the times material to the statements did not know what he was saying and the further statement that the rulings of the learned trial judge were based upon findings of fact unsupported by evidence. A finding that there was no evidence is, of course, a finding upon a question of law but it is, in my view, impossible to say that in this case there was no evidence. There was a mass of evidence upon the voir dire and that mass of evidence considered by Lieberman J.A. upon the very issues which I have discussed above. I can only understand Lieberman J.A.'s words as being a conclusion that the evidence was not suffi­cient to justify the learned trial judge having any reasonable doubt that the statements were admis­sible. Understood in that fashion, the conclusion of

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Lieberman J.A. is one upon what is at best a mixed question of fact and law and that is not a question which can be investigated by the Court of Appeal on an appeal by the Crown from an acquit­tal, being beyond the right of appeal granted by s. 605(1)(a) of the Criminal Code.

For these reasons, I would allow the appeal, set aside the decision of the Court of Appeal and restore the acquittal pronounced by Manning J. after trial.

Appeal allowed.

Solicitor for the appellant: L. M. Sali, Calgary.

Solicitor for the respondent: P. S. Chrumka, Calgary.