Mahoney v. R., [1982] 1 SCR 834

Supreme Court of Canada

Mahoney v. R., [1982] 1 S.C.R. 834

Date: 1982-05-31

Jack Reginald Mahoney (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

File No.: 15988.

1981: November 30; 1982: May 31.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Appeal—Jurisdiction—Supreme Court of Canada—Question of law alone—Court of Appeal found errors by trial judge—Appeal dismissed for want of substantial wrong or miscarriage of justice—Whether application of this proviso a question of law alone—Criminal Code, R.S.C. 1970, c. C-34, ss. 613(1)(b)(iii), 618.

Appellant was convicted of first degree murder before a judge and jury. The Court of Appeal found several errors of law in the trial, but dismissed the appeal applying the proviso in s. 613(1)(b)(iii), that no substantial wrong or miscarriage of justice had occurred. The principal question raised in this appeal relates to the power of this Court to review the application of that proviso by a provincial court of appeal, and turns on whether the application of the proviso in the facts of this case raised a point of law.

Held: The appeal should be dismissed.

Per Laskin C.J. and McIntyre J.: The application of the proviso in s. 613(l)(b)(iii) always involves a question of law and it is reviewable in this Court on appeal under s. 618 of the Code. The proviso may be applied only following a legal determination that errors were made at the trial, that no substantial wrong or miscarriage of justice has occurred, and then only if the verdict of the jury would necessarily have been the same had the errors not been made. The Court of Appeal must give substance to the concept of “miscarriage of justice”; this involves a legal determination.

The errors made at trial lose their significance in the face of the conclusion that the jury would have reached the same result and convicted the accused even if those errors had not been made.

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Per Martland, Beetz and Chouinard JJ.: The appeal should be dismissed.

Per Ritchie and Estey JJ.: The appeal should be dismissed for the reasons given by Mclntyre J. With reference to McFall v. The Queen, it was noted that the majority assumed a jurisdiction in the Court to examine the propriety in law of the invocation of s. 613 by the Court of Appeal.

Per Dickson and Lamer JJ.: This Court has defined s. 613(l)(b)(iii) into a question of law by requiring that courts of appeal before applying the proviso in that section first make a finding that no jury properly charged could reasonably acquit—a finding very much a decision of law.

Lizotte v. The King, [1951] S.C.R. 115; McFall v. The Queen, [1980] 1 S.C.R. 21; Colpitis v. The Queen, [1965] S.C.R. 39; Schmidt v. The King, [1945] S.C.R. 38; Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 81, considered; R. v. Davison, DeRosie and Mac Arthur (1974), 20 C.C.C. (2d) 424; Makin v. Attorney General for New South Wales, [1894] A.C. 57; Brooks v. The King, [1927] S.C.R. 33; Stein v. The King, [1928] S.C.R. 53; Brown v. The Queen, [1962] S.C.R. 71; R. v. Décary, [1942] S.C.R. 80; Rozon v. The King, [1951] S.C.R. 48; Pearson v. The Queen, [1959] S.C.R. 69; R. v. Comba, [1938] S.C.R. 96, referred to.

APPEAL from a judgment of the Ontario Court. of Appeal (1979), 50 C.C.C. (2d) 380, 11 C.R. (3d) 64, dismissing an appeal from a judgment of VanCamp J. Appeal dismissed.

Brian H. Greenspan and C Jane Arnup, for the appellant.

David Watt, for the respondent.

The judgment of Laskin C.J. and Mcintyre J. was delivered by

MCINTYRE J.—The principal question raised in this appeal relates to the power of this Court to review the application of the proviso in s. 613(1)(b)(iii) of the Criminal Code by a provincial court of appeal. The appellant was convicted of the first degree murder of one Rosalee Wrona before Madam Justice Van Camp and a jury. The Court of Appeal found several errors of law in the trial, but applied the proviso to dismiss the appeal.

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The appellant appeals to this Court by leave.

The appellant was released from Millhaven Penitentiary on mandatory supervision on March 23, 1977. He went directly to Kitchener where he, his former wife and her (then) husband did some drinking leading to a fight between the two men. Later in the day in a hotel where he had been drinking he became involved in another fight in which he received a blow to the head resulting in profuse bleeding. He left Kitchener and arrived in London about 5:00 p.m. on March 24, 1977. He went to the home of the deceased Wrona, a friend of some years’ standing, where he found her with her two infant children, a male baby-sitter and a woman friend. He remained in this company for some hours. The atmosphere was friendly; they drank some rum that he had brought with him and in due course he left and found another woman friend. Later the same evening he returned to the deceased’s home to retrieve the bottle of rum. She was absent and he stayed for about ten minutes. On the morning of March 25, according to his version of events, the appellant went to another friend’s home and remained there until 5:30 or 6:00 p.m. when he returned to the deceased’s home to pick up some belongings that he had left there. The same group was present as upon his first visit. He remained for about one hour and a half. Again there was no evidence of discord.

At about 2:00 a.m. on March 26 the deceased returned to her home with a few friends. There was some drinking and, according to the evidence of the baby-sitter, when the friends left he went to sleep on one couch in the living room and the deceased went to sleep on the other couch.

At about 6:30 a.m. on March 26, a man arrived at the home of the deceased and broke the door and window at the front of the house with an axe, forcing his way in. The deceased left the house and went into the back yard followed by the intruder. He attacked her, striking several blows with the axe, killing her almost instantly, and then left the scene. The deceased’s body was found by the

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police in the back yard and the axe was discovered nearby. The intruder was identified as the appellant by two witnesses, the baby-sitter and the deceased’s seven year old son. The baby‑sitter testified that the deceased got up from the couch on which she had been sleeping when the intruder broke in and mentioned Jack’s name, saying something like “Jack, what are you doing?” or “No Jack.” The seven year old child said that he had come from his bedroom into the living room after being awakened by the noise of the break-in. He watched the appellant crash through the front door and heard him say he was Jack. He then put some clothes on and went to the back door from which he saw Jack hitting his mother with the axe and swearing at her and heard her say: “Please don’t hurt me Jack.” The police investigation confirmed the fact of the break-in and expert evidence disclosed that samples of glass and paint, taken from the door broken in the entry, matched samples found on the axe and on the clothing of the appellant, which was examined after his arrest later that day.

The appellant gave evidence on his own behalf. He said that after leaving the deceased’s residence between 6:30 and 7:00 p.m. on March 25, 1977 he went to the home of a woman friend for about half an hour. He then visited various hotels, drinking beer at each establishment. He did not see anyone he knew at these hotels and could not say how much beer he had consumed. Finally, he began to look for a place where he could break in and procure some money. He walked into an apartment building about 1:00 a.m. and encountered a man in the hallway. He said, to explain his presence, that he was being pursued and had come into the apartment building to hide. The man he spoke to, the Crown witness Weedmark, agreed to allow him to spend the night in his apartment. The appellant described how the two men watched television, listened to the radio and had a beer in the course of the next two hours. The appellant at one point asked Weedmark if he could lend him a gun, or lend him money in order to buy one. He also asked him to cut his hair but Weedmark declined. There was some discussion about switching clothes but this did not occur. The appelant

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shaved off his beard and his mustache and went to sleep. He left the apartment between 6:20 a.m. and 6:30 a.m. the morning of March 26. He said that upon leaving the apartment he wandered about the neighbourhood in search of a store where he could buy cigarettes. At one point he found a variety store which was closed, but he sat on some concrete steps in front of it and waited for a time in the hope that it would open. He searched further and found a store which was open where he bought some cigarettes. The existence of stores in the vicinity which could fit the description given by the appellant, and the fact that one would have been open at the time referred to was confirmed by the evidence of their owners. The appellant then, according to his evidence, wandered aimlessly through the streets of London for the remainder of the day. While sitting in a park area across the street from a garage, he heard a radio announcement, presumably from a radio in one of the cars, to the effect that Rose Wrona was dead. He was arrested by the police at 9:00 p.m. He denied being at the deceased’s home on March 26 and denied any involvement whatever in her death. He claimed that he had no reason to kill her and, indeed, no reason or motive was ever shown.

Certain statements made by the appellant to the police were admitted in evidence. He denied the killing, denied possession of an axe, and explained some comments which would indicate a knowledge of the death of the deceased before the fact was mentioned to him by the police by the radio announcement that he had overheard. As far as the movements of the accused after 1:00 a.m. on March 26 are concerned, his version is supported by the evidence of Weedmark up to his departure from Weedmark’s apartment between about 6:20 and 6:30 a.m. Thereafter his version is without support from other evidence, except for the location of the two stores he said he visited and the time and place of his arrest by the police.

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In the Court of Appeal Brooke J.A., for the Court, reviewed the facts in some detail and then proceeded to consider the submissions of the appellant. He found that there had been error on the part of the trial judge in her directions to the jury on the matter of the appellant’s defence of alibi. She had said to the jury:

In considering the weight to be given to that alibi evidence you may take into account that he did not tell the police at the earliest possible opportunity he was somewhere else when the offence is alleged to have been committed so they would have an opportunity of checking that alibi. He is not obliged to disclose his alibi at the earliest possible moment to the authorities. But in considering the truthfulness of the story told by him at trial you may, if you see fit, take his delay in telling the law where he had been into account. In other words, you may, if you think it proper, use the delay in disclosing the alibi in weighing the evidence given about the alibi. I am not talking about his failure to give that evidence at the preliminary enquiry because the police did have the evidence that he was at Weedmark’s house from Weed-mark himself. But when the accused man was in the police station and was being asked and was being charged with this murder there is no evidence to disclose that he then knew Weedmark had told them he had been at the apartment.

Brooke J.A. concluded that the jury might well have assumed that the delay of the appellant in telling the police of his encounter with Weedmark could be considered in assessing the truth of the alibi evidence. He expressed the view, as well, that it was improper to mention the failure of the appellant to give evidence of his alibi at the preliminary hearing.

In addition, error was found in the instructions given the jury regarding the inference which could be drawn from an alleged fabrication of an alibi. The trial judge had said:

Mere disbelief or rejection of the alibi after careful consideration by you of the evidence does not by itself justify a conviction. You may, if you do not believe the evidence of the accused that he was not there, disregard his evidence and then you must consider all the other evidence including the other evidence of identification to determine if the Crown has proven beyond a reasonable doubt the guilt of the accused.

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Now I am going to say almost the reverse. If on the other hand you are satisfied beyond a reasonable doubt that he was present at the home of the deceased that morning then it is logical that you must also be satisfied that he has deliberately lied when he denies that fact and you would then be entitled to infer from the lie that you would find a consciousness of guilt.

Brooke J.A. said that while an inference of consciousness of guilt could be drawn from proof of the fabrication of a false alibi, such an inference was not open where, as in the case at bar, the jury on weighing the alibi evidence simply rejected it. For this proposition he relied on R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424, where Martin J.A. dealt with this question.

Brooke J.A. found, as well, that the trial judge instructed the jury on the defence of drunkenness only in relation to the issue of the appellant’s capacity to form the intent to make an unlawful killing murder, and did not instruct the jury on its application to the question of planning and deliberation required for proof of first degree murder. This error was conceded by the Crown.

Finally, Brooke J.A. found that there had been error on the part of the trial judge in directing the jury regarding the words alleged to have been spoken by the deceased moments before her death when the intruder broke into her house by the front door. The words included the use of the appellant’s name, ‘Jack’, and could have been taken as evidence of recognition upon her part and, therefore, evidence identifying the appellant as her attacker. The trial judge had told the jury that if they found that she had spoken the words, they could consider the evidence only as corroborative of the evidence of the other identification witnesses, the baby-sitter and the deceased’s son. Brooke J.A. considered that Van Camp J. should have told the jury that if they believed that the deceased had made the statement, it was evidence that they must consider together with other evidence as to the identification of the intruder in deciding whether the Crown had proved that it was the appellant. He then said:

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The errors above referred to in another setting might well be fatal to the conviction but here the learned trial judge has fully canvassed all of the facts and the theory of both the Crown and the defence. In my opinion she made the issues upon which they must pass clear to the jury and of importance, emphasized that the burden was upon the Crown to prove this man’s guilt beyond a reasonable doubt.

He had said earlier:

In my opinion the appeal must be dismissed. While there were errors made by the learned trial judge in her charge to the jury, I think that regarded either individually or together, that there has been no substantial wrong or miscarriage of justice and so it is an appropriate case to apply s. 613(1)(b)(iii). The Crown has met the onus upon it to satisfy this Court that the verdict would necessarily have been the same if these errors had not occurred.

The appellant in his appeal to this Court asserts five grounds of appeal. The first four refer to the errors discussed by Brooke J.A., which have been summarized earlier. The fifth, which is the most significant, alleges error in law upon the part of the Court of Appeal in applying the proviso. It is apparent at once that before the appellant can succeed in this appeal he must succeed upon this point, since the other four grounds were decided in his favour in the Court of Appeal. The appellant recognizes that, under the provisions of s. 618 of the Criminal Code, the jurisdiction of this Court to entertain his appeal depends upon his raising a question of law. He asserts that he has done so on this appeal and puts his proposition in these words in his factum:

It is respectfully submitted that in light of the grave misdirection by the Trial Judge as found by the Court of Appeal by [sic] the Province of Ontario, it was error in law to hold that a properly instructed jury must inevitably have convicted the Appellant. In the alternative, it is submitted that if the individual errors were not sufficiently serious to render inappropriate the application of Section 613(1)(b)(iii) of the Criminal Code, the accumulative effect of the errors was such as to make it error in law to then apply the proviso. It is respectfully submitted that the effect of the errors in this case

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undermine the credibility of the Appellant and further had the effect of improperly diminishing the frailities of certain critical evidence adduced against the Appellant.

And later:

It is respectfully submitted that a mis-application by the Court of Appeal of a province of the provisions of s. 613(1)(b)(iii) (hereinafter referred to as ‘the proviso’), raises a question of law alone.

It is acknowledged that in Dunlop and Sylvester v. The Queen (1979), 47 C.C.C. (2d) 93, [[1979] 2 S.C.R. 81], five members of the Supreme Court of Canada appear to be of the view that the application of the proviso did not raise a question of law. It is respectfully submitted that this view, which is expressed without reliance upon any authority, is inconsistent with a substantial line of cases in which the Supreme Court of Canada has implicitly held it had jurisdiction to deal with errors in the application of the proviso and further, it is respectfully submitted that this view is directly contrary to the decision of this Honourable Court in Lizotte v. The King…

It is evident from the above that the appellant is asserting that the application of the proviso simpliciter raises a question of law within the meaning of s. 618 of the Code. It follows, if this argument be adopted, that this Court would in all cases where the proviso is applied have jurisdiction to grant leave to appeal and to review the application of the proviso and reverse the Court of Appeal on this issue where it thought it proper to do so. In support of this contention the appellant relies heavily on Lizotte v. The King, [1951] S.C.R. 15 and the dissenting judgment of Estey J. in McFall v. The Queen, [1980] 1 S.C.R. 21, together with the various authorities reviewed by Estey J. in that case.

While contending that the application of the proviso simpliciter raises no point of law, the Crown does not say that the application of the proviso can never involve a point of law. In argument Crown counsel made it clear that the Crown’s position was not that advanced by Crown counsel in Lizotte’s case. He was referring to the

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passage in the Lizotte report, at pp. 133-34, which reads:

One further argument requires consideration. At the conclusion of his able argument Mr. Dorion submitted that the jurisdiction of this court in criminal matters being limited to questions of law and the court appealed from having held that notwithstanding certain errors in law at the trial there was no substantial wrong or miscarriage of justice and that the appeal should be dismissed under the provisions of section 1014(2) [the predecessor section to 613(1)(b)(iii)] of the Criminal Code, such decision cannot be reviewed in this court. It is argued that in reaching the decision to apply section 1014(2) the Court of Appeal must of necessity have examined and weighed the evidence and that consequently such decision is one of fact or of mixed fact and law and, therefore, not subject to review in this court. It is urged that the appeal must be dismissed even if this court should be of opinion that any or all of the points of law argued before us are well taken.

The Crown’s position was set out in its factum in these terms:

3. It is at once admitted that there may arise cases, of which the instant case is not an example, where the application or non-application of the proviso may raise a question of law in the strict sense, as for example where the provincial appellate court:

(a) applies an incorrect test to determine the application of section 613(1)(b)(iii), as for example,

(i) by interpreting the section to the exclusion of the word ‘substantial’ modifying the type of wrong which may negate application of the proviso,

(ii) by interpreting the section to be the equivalent of ‘…the verdict might necessarily have been the same but for the error of law in question’;

(b) holds that whenever a particular error of law arises at trial it is inappropriate to apply the proviso;

(c) holds that the cumulative effect of multiple errors of law does not affect the application of the proviso; or,

(d) considers extraneous matters or omits to consider relevant factors in the application or non-application of the proviso such that the court proceeds upon an erroneous principle.

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The Crown contends that no such error in law or principle has been shown in the case at bar. The Court of Appeal, having found errors in the trial process, considered the significance of the errors and then applied the correct test, that is, that the verdict of the jury would necessarily have been the same even if the errors had not been made. It considered no extraneous or irrelevant factors and acted on no improper principle in applying the proviso. There was therefore no error in law which would give the Court jurisdiction to entertain the appeal and it should be dismissed. In the alternative the Crown has argued that if the Court should consider that a point of law has been raised by the application of the proviso, its application on the facts in this case was proper and the appeal should be dismissed.

The question then is, does the application of the proviso in s. 613 of the Code in the facts of this case raise a point of law? The answer to this question requires a consideration of the relevant parts of s. 613, which are set out hereunder:

613. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand his trial, or against a special verdict of not guilty on account of insanity, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a) (ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;

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It will be observed at once that the Court of Appeal is not given a free and unrestricted discretion in this matter, such as is conferred in allowing appeals by subsections (a)(i) and (a)(iii) of s. 613(1). The discretion found in s. 613(1)(b)(iii) may be exercised only where the court has found that on a ground or grounds involving a wrong decision on a point of law the appeal might have succeeded and has then formed the opinion that no substantial wrong or miscarriage of justice has occurred. In addition to the provisions of the section a body of case law has grown up which further restricts the exercise of the discretion. It is settled law that a court of appeal may not apply the proviso unless it is satisfied that, even if the errors in law found by the Court of Appeal to have been made at the trial had not been made, the verdict of the jury would necessarily have been the same. There are numerous cases of high authority which have enunciated this proposition. In Colpitis v. The Queen, [1965] S.C.R. 39, Cartwright J., speaking for himself and Hall J., said at p. 744:

Upon reading these it will be observed that, once error in law has been found to have occurred at the trial, the onus resting upon the Crown is to satisfy the Court that the verdict would necessarily have been the same if such error had not occurred. The satisfaction of this onus is a condition precedent to the right of the Appellate Court to apply the terms of the subsection at all. The Court is not bound to apply the subsection merely because this onus is discharged.

In the same case Spence J. reviewed many authorities on the question and said, at p. 756:

If there is any possibility that twelve reasonable men, properly charged, would have a reasonable doubt as to the guilt of the accused, then this Court should not apply the, provisions of|s. 592(1)(b)(iii) [the proviso] to affirm a conviction.

In Lizotte v. The King, supra, at pp. 137-38, Cartwright J., speaking for this Court, noted the words of Kerwin J. in Schmidt v. The King, [1945] S.C.R. 38, in these terms:

I have no difficulty in reaching the conclusion that this is not a case in which it can be said that no

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substantial wrong or miscarriage of justice has occurred by reason of the errors in law made at the trial which have been pointed out above. The test to be applied is found in the words of Kerwin J., giving the judgment of the court in Schmidt v. The King (supra).

…The meaning of these words has been considered in this Court in several cases, one of which is Gouin v. The King (1926) S.C.R. 39; from all of which it is clear that the onus rests on the Crown to satisfy the Court that the verdict would necessarily have been the same if the charge had been correct or if no evidence had been improperly admitted. The principles therein set forth do not differ from the rules set forth in a recent decision of the House of Lords in Stirland v. Director of Public Prosecutions (1944) A.C. 315, i.e., that the proviso that the Court of Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.

There are many other authorities going back as far as Makin v. Attorney General for New South Wales, [1894] A.C. 57, which support this proposition. The test for the application of the proviso is established beyond doubt.

It is against this background that one must consider the proviso and its application. It is abundantly clear, in my view, that the discretion involved in its application is narrowly limited by statute to cases where the court of appeal has found an error or errors of law at trial, and its exercise depends upon the application of the strict legal test affirmed in the authorities and firmly imbedded in the law.

In examining this question I commence with Lizotte v. The King, supra. In that case Cartwright J. clearly held that this Court once error has been found in the trial proceedings is unfettered by the views expressed in the Court of Appeal in deciding what order should be made. At pages 134-35 he dealt with the matter in these terms:

It is argued that in reaching the decision to apply section 1014(2) the Court of Appeal must of necessity have examined and weighed the evidence and that conse-

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quently such decision is one of fact or of mixed fact and law and, therefore, not subject to review in this court. It is urged that the appeal must be dismissed even if this court should be of opinion that any or all of the points of law argued before us are well taken.

I do not think that this argument is entitled to prevail. In the case at bar it might perhaps be disposed of by pointing out that in my opinion there were serious errors in matters of law at the trial which the Court of Appeal did not regard as being errors at all; but even had the Court of Appeal found the existence of all the errors in law which in my view did occur and nonetheless dismissed the appeal pursuant to section 1014(2), I do not think that this court would be without jurisdiction.

After noting that counsel could not refer to any case where this argument had been raised and observing that, if adopted, this Court would be unable to review the application of the proviso, even if it were of the opinion that grave error had occurred at trial, he discussed the basis of this Court’s jurisdiction in the matter, and said:

In my view it is the duty of this court, in the first instance, to examine the point or points of law properly brought before it either under (i) [then s. 1023] or (ii) [then s. 1025] above or, as may sometimes happen, under both (i) and (ii). If the court comes to the conclusion that there has been no error in law it follows that the appeal will be dismissed. If, on the other hand, this court is of opinion that there has been error in law in regard to any one or more of the points properly before it, then I think, there devolves upon it the duty, in disposing of the appeal, to “make such rule or order thereon, either in affirmance of the conviction or for granting a new trial, or otherwise, or for granting or refusing such application, as the justice of the case requires.” (section 1024).

In my opinion once this court reaches the conclusion, on one or more of the points properly before it, that there has been error in law below it is unfettered in deciding what order should be made by the views expressed in the Court of Appeal. This would be my view if the point were devoid of authority. It is I think supported by the practice followed for many years.

In support of the view that he had expressed he went on to refer to earlier authorities: Brooks v.

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The King, [1927] S.C.R. 33 and Stein v. The King, [1928] S.C.R. 53.

Applying those words to the case before us, which turns on statutory provisions that are virtually identical to those in effect when Lizotte was decided, the role of this Court is clear. Errors in law are raised as grounds for appeal before this Court. The Court is entitled to consider whether the alleged errors exist. If it is found they do not exist, the appeal must fail. If, however, the Court considers that errors as alleged, or some of them, have been made, it is free to make such order as the justice of the matter may require, including an order applying the proviso or refusing its application, unfettered in this position by any disposition made in the Court of Appeal.

This view of the law was questioned in Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 81. In that case the two accused were convicted of rape. In the Court of Appeal of Manitoba it was found that the trial judge was in error in directing the jury that the accused could be convicted as party to the offence by the application of s. 21(2) of the Criminal Code. The majority in the Court of Appeal applied the proviso to dismiss the appeal, while the minority dissented on this point. In this Court the appeal was allowed by a majority on the basis of the error made in charging the jury under s. 21(2) of the Code and the Court declined to apply the proviso. Five members of the Court, three who dissented from the result and two who accepted the result, considered that a disagreement in the Court of Appeal on the application of the proviso did not raise a dissent on a point of law. It should be noted, however, that no authority was cited for this proposition and it does not appear that the Lizotte case was mentioned. It is my view, with deference to those who expressed the view that no question of law was raised by the application of the proviso, that these statements cannot override the clear pronouncement of the Court in Lizotte and I agree with the words of Estey J. in McFall, supra, where he noted that these words formed no part of the ratio decidendi in Dunlop and Sylvester v. The Queen, supra.

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The matter came up for further consideration in McFall v. The Queen, supra. In that case the appellant McFall was convicted of non-capital murder. His appeal was dismissed in the Court of Appeal with one dissent. All the members of the Court of Appeal agreed that errors had been made at trial, but the majority, Freedman C.J.M., Guy, Monnin and Matas JJ.A., applied the proviso to dismiss the appeal, while O’Sullivan J.A. dissented and declined to do so.

There were twelve grounds of dissent certified to this Court, but the significant ones were the first three which are set out below:

1. The learned trial judge erred in inviting the jury to compare and contrast the confessions of the appellant with the confessions of his co-accused, to test the validity of the confessions of the appellant.

2. The learned trial judge erred in inviting the jury to consider the statements of the appellant’s co-accused, which were inadmissible as against the appellant, in considering the credibility of the appellant.

3. The learned trial judge erred in permitting the appellant to be asked during his cross‑examination, to comment on the veracity of his co-accused in connection with their confessions and to comment on the veracity of other witnesses.

The appeal to this Court was dismissed, the majority, Martland, Ritchie, Pigeon, Dickson, Beetz and Pratte JJ., concurring in the judgment of Ritchie J., which is set out in full hereunder:

I have had the advantage of reading the reasons for judgment prepared for delivery by my brother Estey, but I am nevertheless not persuaded that this appeal should be allowed. Having regard to the overwhelming evidence implicating the appellant in the murder of which he was convicted, the Court of Appeal was satisfied that this was a case in which, in spite of the errors of the trial judge referred to in the judgments below, there was no “substantial wrong or miscarriage of justice” and the provisions of s. 613(1)(b)(iii) of the Criminal Code were properly applicable. In my view there was no error in law in the judgment, rendered on behalf of the Court of Appeal for Manitoba by Chief Justice Freedman, with which Guy, Monnin and Matas JJ. agreed.

I would accordingly dismiss this appeal.

The minority, Laskin C.J., Spence and Estey JJ., would have allowed the appeal and directed a

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new trial. Estey J., after dealing with the facts and commenting on the problems inherent in joint trials where statements of various accused persons are admitted in evidence, said: “We are then left with the conflict below as to the application of the curative powers of s. 613(1)(b)(iii).” He then proceeded to review the authorities in which the powers of this Court in connection with the application of the proviso have been considered, and he concluded that the majority in the Manitoba Court of Appeal had been in error in applying the proviso, that the conviction could not stand, and that a new trial must be ordered. He concluded that part of his reasons with the following statement, at p. 346:

For the reasons stated above with reference to the misuse of the extrajudicial statements by the co-accused throughout the trial, first on the cross-examination of the appellant, later in the address of the prosecution to the jury, and finally in the instructions given by the learned trial judge to the jury, I have concluded that a serious and fundamental error of law was committed, and that one cannot be certain that in the absence of this repeated error a jury properly instructed would necessarily have reached the same conclusion with reference to the appellant. Section 613(1)(b)(iii) cannot therefore be invoked in these circumstances and the conviction therefore cannot stand.

I need not review in detail all the cases which Estey J. considered. They include Lizotte’s case, which has been referred to above, as well as Brooks v. The King, supra, Stein v. The King, supra, Brown v. The Queen, [1962] S.C.R. 71 and Colpitis v. The Queen, supra, all of which support the proposition that this Court may review the application of the proviso in a provincial court of appeal. He went on to distinguish cases which have been cited as authority to the contrary, such as R. v. Décary, [1942] S.C.R. 80, Rozon v. The King, [1951] S.C.R. 48, Pearson v. The Queen, [1959] S.C.R. 69 and Dunlop and Sylvester v. The Queen, supra. From this judgment it becomes clear that Estey J. and the other judges forming the minority who agreed with him considered that the application of the proviso raised a point of law. This Court was, therefore, competent to entertain the appeal. The majority judgment in McFall does not address the question dealt with by Estey J. in

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his dissent, beyond expressing the view that the Court of Appeal made no error in applying the proviso and, in my view, would not stand as an authority for the proposition that this Court has no jurisdiction because of the absence of the allegation of a point of law to entertain an appeal from the application of the proviso in a provincial court of appeal.

The various cases which were considered and discussed by Estey J. in his dissent in McFall make it clear, in my opinion, that the Court for many years has considered that a question of law is involved in the application of the proviso in the provincial court of appeal and that an appeal lies upon this basis to this Court. This Court has considered itself free to review the application of the proviso and that it has jurisdiction to approve or disapprove the disposition of the matter in the Court of appeal. This is made clear, in my view, by the unanimous decision of this Court in Lizotte and by the other cases cited in that decision and by those cited by Estey J. which followed it. I make particular reference on this point to Brown’s case, where misdirection was alleged in the charge to the jury. Jurisdiction to hear the appeal in this Court depended upon a dissent on a point of law in the Court of Appeal with respect to the questioned passage in the judge’s charge. One of the judges in the Court of Appeal had said:

Although there are, with respect, certain deficiencies in the charge of the jury, no substantial wrong or miscarriage of justice has occurred and, accordingly, I would dismiss the appeal against conviction having regard to the provisions of Section 592(1)(b)(iii) of the Criminal Code.

Two others were of the view that:

At the end of the charge, defence counsel objected that this latter part of the charge was bad because it stated that the story of the accused must be accepted before the jury could find that death was caused by accident. The jury was recalled and further instructed. The instructions on this point were preceded by the words “if you disbelieve that (appellant’s) story”, and what followed is not very clearly expressed. Much was made at the hearing of this appeal of these additional instructions but I think it is quite clear from their

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verdict that the jury accepted the appellant’s account of what happened, for it is only on this evidence that a verdict of criminal negligence would be founded. That being so, these additional instructions to the jury became irrelevant as far as this appeal is concerned.

Cartwright J., speaking for the majority of this Court, said with respect to the matter, at p. 378:

With the greatest respect to those who entertain a different view, it appears to me that when one judge holds that a passage in the charge to the jury is material and fatally misleading and another judge holds that the same passage is irrelevant they are in disagreement on a point of law.

The authorities which have been referred to make it clear, in my view, that this Court has long considered that the application of the proviso involves a question of law and it has entertained appeals where error in its application has been alleged. It has been shown that the proviso may be applied only following a legal determination that errors have been made at trial, but that “no substantial wrong or miscarriage of justice has occurred”, and then only according to a strict legal test. The determination of what will constitute a substantial wrong or miscarriage of justice must involve the construction of those words in the context in which they are used in the Statute, and such statutory construction has long been considered a matter of law. The Court’s decision involves an analysis of the rights accorded by law to an accused and the measurement of the impact of the errors which were made at trial. Once an appellant establishes in the Court of Appeal that errors of law were made at his trial he becomes entitled to have his appeal allowed and a new trial or an acquittal, depending on the circumstances, unless the proviso is applied to annul those rights. The Court of Appeal must consider the errors against the background of the whole trial. While a reconsideration of the evidence is involved, clearly the inquiry goes far beyond the determination of matters of fact. The Court of Appeal must give substance to the concept of “miscarriage of justice” and this involves a legal determination. For all the above reasons, I am of the opinion that the

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application of the proviso must always involve a question of law and it is reviewable in this Court on appeal under s. 618 of the Criminal Code.

I now turn to consideration of the application of the proviso by Brooke J.A. in the Court of Appeal. At the outset it may be observed that he applied the correct test for the application of the proviso and considered the effect of the errors in law, which were found to have occurred at trial, individually and cumulatively, in reaching his conclusion. It cannot be said on a careful reading of his judgment that he gave effect to any extraneous considerations, or made any mistake in principle in approaching the problem.

I have briefly described the errors found by the Court of Appeal. On the question of the alibi direction, Brooke J.A. considered that the trial judge had erred in telling the jury that they could consider a delay by the appellant in informing the police of his whereabouts on the night before the killing in assessing the weight of the evidence of the alibi. He found, as well, that it was error to leave with the jury the suggestion that an inference of guilt could be drawn from the fabrication of a false alibi. In dealing with these errors, he pointed out that the police in any event knew of the witness Weedmark from the outset of the investigation, and he said:

But what effect is to be given to the Appellant’s submissions? On the facts, if the jury were satisfied beyond a reasonable doubt that the Appellant was the one who had come to the deceased’s house that morning, then the guilt of the Appellant inevitably followed, and the impugned direction in the circumstances did not result in a substantial wrong or miscarriage of justice. Further, while this was a case where the Appellant’s credibility was critical and, as I have said it was inappropriate to direct the jury as she did with respect to delay in the disclosure of the alibi, nevertheless the finding of the piece of glass and painted wood chip in the Appellant’s clothing was in the absence of some logical explanation in the evidence, of such great weight when added to the other evidence of identification that I am satisfied the verdict of the jury would have been the same notwithstanding the error.

I am in full agreement with this comment.

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On the question of the charge on drunkenness, it was conceded by the Crown that the trial judge did not tell the jury that planning and deliberation might be negated by evidence of drunkenness falling short of an incapacity to form the intent required for murder under s. 212(a) of the Code. Brooke J.A. considered the effect of this error and reviewed the evidence of drunkenness in some detail. He noted that there was evidence of a large amount of drinking between the time the appellant left prison until 1:00 a.m. on March 26 when he met Weedmark in the apartment building. From then on there was evidence of only one beer, and evidence from Weedmark that the appellant was behaving normally with no suggestion that he was intoxicated. From the appellant’s own evidence of what occurred in the apartment, he was sufficiently alert at 1:00 a.m. to invent a story on the spur of the moment, explaining his presence in the apartment, and he himself gave evidence of an attempt to acquire a firearm, an attempt to change his clothing, and of shaving off his beard and mustache and endeavouring to get his hair cut, from which an inference could be drawn of rational planning not to be expected from one seriously intoxicated. I agree with Brooke J.A. in the comment which follows:

In the circumstances was there any evidence of consumption of alcohol and intoxication which was of the slightest significance so far as his conduct at 6:30 a.m. of March 26 is concerned? There was no evidence that he was feeling poorly or even in ordinary terms that he had a hangover. In the circumstances I see no reason to think that the failure of the learned trial judge could have caused any miscarriage of justice to the Appellant. There would really be no reason for doubt on all of the evidence that if he was the person who went to the deceased’s home that morning armed with a hatchet and killed her, his conduct was both planned and deliberated.

He found, as well, that the error with reference to the evidence of the words spoken by the deceased on the entry of her attacker into her home was of no significance in this matter. I would say on this

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point that the effect of any error made at trial would have been in the appellant’s favour because Brooke J.A. would have admitted the evidence for all purposes, while the trial judge limited it to corroboration only. I am in agreement with Brooke J.A. in his treatment of this error.

Considering all of the evidence in this case which I have examined, I am of the opinion that if the errors above described had not been made the jury would necessarily have reached the same result and convicted the accused. It is plain that the jury accepted the evidence to the effect that the intruder in the deceased’s home was the appellant. In the face of the evidence identifying the glass and paint fragments found on the axe and the clothing of the appellant with those from the door which had been broken in, it would have been virtually impossible to do otherwise. The errors alleged lose their significance in the face of this inevitable conclusion. I would dismiss the appeal.

The reasons of Martland, Beetz and Chouinard J J. were delivered by

CHOUINARD J. (concurring with Laskin C.J. and McIntyre J. but in result only)—I agree with the conclusion of Mr. Justice McIntyre that this appeal should be dismissed.

The reasons of Ritchie and Estey J J. were delivered by

ESTEY J. (concurring with Laskin C.J. and McIntyre J. but with added reasons)—I concur in the reasons for judgment of my colleague McIntyre J. and only wish to make but one comment with reference to the decision of this Court in McFall v. The Queen, [1980] 1 S.C.R. 21. McIntyre J. in his reasons states that “The majority judgment in McFall does not address the question.” as to whether the application or non-application of s. 613 in the court below is a reviewable question of law. Somewhat the same situation arose in Colpitis v. The Queen, [1965] S.C.R. 39, where both the majority and the minority judgments considered the application of s. 613(1)(b)(iii) to the circumstances arising at trial and reached opposite conclusions, the majority

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reversing the decision of the provincial Court of Appeal on this question.

The majority reasons in McFall, after reciting the fact that the Court of Appeal had applied s. 613(1)(b)(iii) “Having regard to the overwhelming evidence implicating the appellant in the murder. “, stated, “In my view there was no error in law in the judgment.” in the Court of Appeal. I take this to be a clear reference to the fact that the exercise in the court below was that of determining a question of law in relation to the application of s. 613(1)(b)(iii). In other words the majority assumed a jurisdiction in the Court to examine the propriety in law of the invocation of s. 613 by the Court of Appeal. I therefore would dismiss the appeal for the reasons given by McIntyre J. subject only to the comments above.

The reasons of Dickson and Lamer JJ. were delivered by

LAMER J. (concurring with Laskin C.J. and McIntyre J. but in result only)—I have had the advantage of reading the opinion of my brother McIntyre. For the reasons set out in his opinion, I agree that this appeal should be dismissed. I should like to add however that, with respect, I do not find compelling the reasoning of Cartwright J. in Lizotte v. The King, [1951] S.C.R. 15, except to the extent Cartwright J. finds support in the fact that the Court had previously on many occasions dealt with the resort to s. 613(1)(b)(iii) as being a decision involving a question of law and, as such, reviewable by this Court. The substance of his reasoning is in the following passage of the judgment at p. 135:

In my view it is the duty of this court, in the first instance, to examine the point or points of law properly brought before it either under (i) or (ii) above or, as may sometimes happen, under both (i) and (ii). If the court comes to the conclusion that there has been no error in law it follows that the appeal will be dismissed. If, on the other hand, this court is of opinion that there has been error in law in regard to any one or more of the points properly before it, then I think, there devolves upon it the duty, in disposing of the appeal, to “make

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such rule or order thereon, either in affirmance of the conviction or for granting a new trial, or otherwise, or for granting or refusing such application, as the justice of the case requires.” (section 1024).

In my opinion once this court reaches the conclusion, on one or more of the points properly before it, that there has been error in law below it is unfettered in deciding what order should be made by the views expressed in the Court of Appeal. This would be my view if the point were devoid of authority. It is I think supported by the practice followed for many years. [My underlining]

This passage, in my view, still leaves undecided the question under consideration, namely, whether a decision by the Court of Appeal to apply s. 613(1)(b)(iii) is itself a decision on a question of law. I agree that if this Court, on an appeal by the accused against conviction, finds error of law in the Court of Appeal’s decision that there was no error of law in the Trial Court, it is then, as said Cartwright J., indeed unfettered in its own discretion to either enter an acquittal, order a new trial, or apply the proviso of s. 613(1)(b)(iii). But if this Court finds no error in law in the Court of Appeal’s decision that there was, or was not, error of law in the Trial Court, this Court would then be precluded, (this is at least what I read in that passage of Cartwright J.’s reasons), from reviewing the Appeal Court’s disposing of the appeal by applying the proviso of s. 613(1)(b)(iii), as it would then, as Cartwright J. said, “follow…that the appeal will be dismissed”.

In my view, this Court has through judicial pronouncements defined the application of s. 613(1)(b)(iii) into a question of law. Indeed, the section suggests, when considered alone, that the decision by the Court of Appeal is one of mixed fact and law. But this Court has required as a prerequisite to the courts of appeal applying the proviso of s. 613(1)(b)(iii) that they first make a finding that no jury properly charged could reasonably acquit. (Reference to, amongst others,

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Spence J. in Colpitis v. The Queen, [1965] S.C.R. 39.) Such a finding is, in my opinion, no less a decision on a question of law than that made by a trial judge before directing a verdict of acquittal when he comes to the conclusion that “in view of the dubious nature of the evidence” no jury could reasonably convict. (R. v. Comba, [1938] S.C.R. 96.)

Appeal dismissed.

Solicitor for the appellant: Brian H. Greenspan, Toronto.

Solicitor for the respondent: J. David Watt, Toronto.