Alward et al. v. The Queen, [1978] 1 SCR 559

Supreme Court of Canada

Alward et al. v. The Queen, [1978] 1 S.C.R. 559

Date: 1977-06-24

Michael Alward and Raymond Mooney Appellants;

and

Her Majesty The Queen Respondent.

1977: June 7, 24.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Criminal law—Murder—Evidence—Admissibility of evidence of similar acts—Defence of drunkenness—Terms of judge’s charge—Criminal Code, s. 613(1)(b)(iii).

Appellants in appealing their convictions of murder bring in issue three main grounds viz. the admissibility of evidence as to similar acts, the trial judge’s charge as to intoxication, and the application of s. 613(1)(b)(iii) of the Criminal Code in all circumstances of the case. The Court had during argument by appellants’ counsel expressed the view that ss. 572(3) and 598 of the Code deprived the grounds of appeal in reference to empanelling the jury of any validity and further that the trial judge had not deprived the appellants of their opportunity of challenge for cause. The Court also agreed with the admission by the trial judge as to the admissibility of all statements, oral as well as written, made by both accused.

Appellants had been charged with murder during the course of robbery in a hotel. The Crown introduced evidence to prove that they had the next evening, aided by the sister of one of them, robbed and assaulted persons in two other hotels in startlingly similar circumstances. The issue of drunkenness was dealt with by the trial judge but he failed to allude to that so‑called defence upon outlining to the jury the theory of the defence, though the jury was later recalled and recharged. The Court of Appeal however held that the charge itself was defective, being erroneous on the issue of drunkenness, omitting to detail “specific intent” in relation to drunkenness and seeming to imply that some burden lay on the accused to prove that their intoxication prevented them from forming the necessary intent. After noting these faults the Court of Appeal concluded that there was no evidence on which a jury could reasonably conclude that the accused might not have the capacity to form the necessary intent.

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Held: The appeal should be dismissed.

Per Laskin C.J. and Martland, Judson, Pigeon, Dickson and Beetz JJ.: The evidence as to the similar acts was admissible. Both these incidents occurred the very next day, they were remarkably similar and well nigh contemporaneous. The statements by the accused in reference to them having been found voluntary, in the jurisprudential sense, were also admissible.

On the issue of drunkenness the faults in the charge quoted by the Court of Appeal were serious. It should have been accurately stated that “all that is needed is for the jury to have a reasonable doubt as to the accused having such capacity” i.e. as to form the necessary intent. The further conclusion of the Court of Appeal, that there was no evidence on which the jury could conclude lack of capacity to form the necessary intent, was however in error. There was evidence of some degree of intoxication, and allegations in the statements of both accused of heavy intoxication, and it was for the jury to weigh the evidence on this point. The appeal was nonetheless one in which s. 613(1)(b)(iii) had to be considered. The test in Colpitts v. The Queen, [1965] S.C.R. 739, of “whether the jury charged as it should have been could, as reasonable men, have done otherwise than find appellants guilty” should be applied and the appeals dismissed.

Per Ritchie and de Grandpré JJ.: On the defence of drunkenness the opinion of the Court of Appeal was correct. There was no evidence on which a jury, properly instructed, could have found such intoxication as to negate criminal intent.

[Brunet v. The King, [1928] S.C.R. 375 distinguished: R. v. Straffen (1952), 36 Cr. App. R. 132; R. v. Giovannone (1960), 45 Cr. App. R. 31; R. v. Squire, [1977] 2 S.C.R. 13; Colpitts v. The Queen, [1965] S.C.R. 739; Ambrose v. The Queen (1975), 25 C.C.C. (2d) 90 referred to.]

APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division[1], dismissing an appeal from convictions upon a joint charge of murder. Appeal dismissed.

Brian Neill and Brian Malone, for the appellants.

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Barry Athey and William Kearney, for the respondent.

The judgment of Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson and Beetz JJ. was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for New Brunswick pronounced on September 14, 1976 by which it dismissed an appeal by the appellants from their conviction by a judge and jury on September 17, 1975 upon a joint charge of murder punishable by imprisonment for life. The reasons for judgment given by Limerick J.A. for the Court of Appeal as to the appellant Michael Alward have been reported in (1976), 32 C.C.C. 416. Since these reasons contain a very complete statement of the facts, I shall confine my references thereto to only such facts as are relevant to the issues which I shall be discussing.

Counsel for the appellants submitted a very considerable number of grounds for appeal but at the close of their argument counsel for the respondent, the Crown, was only called upon to reply in reference to three grounds, i.e., the admissibility of evidence as to similar acts, the learned trial judge’s charge as to intoxication, and the application of s. 613(1)(b)(iii) of the Criminal Code in all the circumstances of the case. The Court had, during the argument by the appellants’ counsel, expressed the view that the provisions of s. 572(3) and s. 598 of the Criminal Code deprived the grounds of appeal in reference to the empanelling of the jury of any validity and further that the learned trial judge in his ruling, in which he said:

Well, that is my ruling, and I want to make it clear to you that you still have the right to challenge for cause in a particular case, but I am not going to permit a blanket challenge.

had not deprived the accused of their opportunity to challenge for cause in a proper manner.

The learned trial judge, after a very lengthy voir dire, had admitted as voluntary all statements, oral as well as written, made by both accused. Limerick J.A., in his reasons for the Court of Appeal, restated the reasons advanced by the

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learned trial judge for admitting those statements into evidence as follows:

a. One reason is that the statements given by the accused, if you accept those statements, couldn’t have been understood by you because all three incidents were so involved in the statements, that you never could have appreciated the significance of them nor could you have understood them unless you knew what these other two incidents were to which the statements refer. That is one reason.

b. A second reason is that there is a certain amount of evidentiary value as far as the Crown is concerned, I suppose, or as far as you’re concerned, in the fact that these two accused a day later were involved together. They were friends in other words. There is no other proof in the trial except them being at the Lord Beaver-brook Hotel together that they were friends. They were friends and they were operating together.

c. A third reason why that evidence has been permitted here is that there are certain statements made in those incidents which you may feel or may have some value in determining whether the accused are guilty of this offence, or at least the Crown feels or would have us believe that it would be of some value. I refer to the statement attributed to one or other of the accused—it makes very little difference who said it because it was in the presence of the other one if you accept the evidence—the statement made to Mr. Bardsley, ‘Well, we’ve already murdered one man’. This was the first instance on Monday evening. ‘We have already murdered one man and we don’t mind killing a second one,’ or ‘We don’t give a damn if we kill a second one,’ words to that effect, which suggested there had been some killing before. Now, Mr. Willet actually wasn’t dead at that time and perhaps the accused thought he had died or perhaps if they had beaten him, perhaps they felt they had beaten him so badly that he died, or perhaps they intended to beat him so badly that he wouldn’t recover and would die so he couldn’t be able later to identify them, but he wasn’t in fact dead at that time, but they may not have known that. Perhaps this was just idle boasting on their part. You have to decide what weight to attach to that statement they made there.

Limerick J.A. concluded after discussing the evidence as to the statements in detail:

The true test, therefore, is did the evidence adduced by the Crown establish that nothing, said or done by any person in authority, could have induced the accused to make a statement which was or might be untrue because thereof. The Crown met that test.

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This Court agreed with that conclusion.

I now turn to the ground of appeal dealing with the admission of evidence dealing with similar facts.

The accused had been charged with the murder of the late D. Gordon Willet during the course of robbing him in his room at the Lord Beaverbrook Hotel in Fredericton on February 16, 1975. The Crown introduced evidence tending to prove that the same two accused accompanied and aided by Linda Alward, the sister of one, had, the very next evening, robbed and assaulted another person in his room at Keddy’s Motor Lodge and a third person in his room at the Oromocto Hotel in Oromocto, New Brunswick. With the exception that in these last two hotel room robberies and assaults Linda Alward was used to gain entry to the room on the pretext of desiring to use the telephone, the similarity between the three incidents was so marked as to be properly styled as startling. Counsel for the Crown has listed fourteen similarities between the three incidents; although some of them were of slight evidentiary value, others are important. Crown counsel could have added another most significant one: both the accused in statements which the courts below have rightly found were admissible, made detailed admissions of their part in all three incidents. It was the latter fact which Limerick J.A. viewed as making unnecessary any decision as to the admissibility of the similar fact evidence, saying:

It is unnecessary for this Court to determine the admissibility of the evidence relating to the two similar robberies at Keddy’s Motel and at Oromocto as there was no miscarriage of justice occasioned thereby, the accused having admitted in their written statements their complicity in the robbery of Mr. Willet. I would apply the provisions of s. 613(1)(b)(iii) of the Code in respect of this ground of appeal if necessary.

With respect, I am unable to agree with that reasoning. If the evidence as to similar facts had not been admissible as being excluded by the well known rule against proof of the bad character of the accused then the admission by the accused of their part in the last two incidents would have been

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equally inadmissible. In such event, I would have been firmly opposed to the use of s. 613(1)(b)(iii) of the Criminal Code to cure the introduction of such gravely prejudicial and inadmissible evidence. The statements of the accused were, however, admissible on the determination by the judge of the issue of whether or not the evidence as to similar facts was admissible. That evidence provided the proof that these two other robberies had been committed by the accused and then if the evidence thereof came within the similar fact rule they were admissible and the Court of Appeal did not have to call in aid the provisions of s. 613(1)(b)(iii) of the Criminal Code.

In view of the circumstances that the three incidents were so very close in time and the robberies were carried out in such a startlingly similar manner, I am of the opinion that evidence on the other two incidents was admissible within the jurisprudence as to similar facts. I realize that it was said in Brunet v. The King[2], that evidence as to the accused having performed an illegal operation on another woman was inadmissible to identify the accused as the person who had committed the offence, no question of intent being involved. However, the alleged similar act in Brunet had occurred in the previous year and the lapse of time was most relevant in determining whether the necessary “nexus” between the offence charged and the alleged similar act was present. Moreover, all these abortion cases are subject to the suspicion that the prosecution is really seeking to obtain a conviction on the basis that the accused is an evil abortionist and must be convicted on one act or the other. I find of considerable interest and relevance the decision of the Court of Criminal Appeal in R. v. Straffen[3], which dealt with the question of the accused’s admission that he had strangled two other little girls in circumstances remarkably like those proved to exist in the strangling of a third with which he was charged. There Slade J. said:

Mr. Elam said: How far, then, does the admissibility of such evidence go; does it go to a burglar, housebreaker, thief, and so on? Lord Sumner, in THOMPSON’S CASE (supra), pointed out that they were merely examples of persons who fell within the genus of dishonest

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persons; but, speaking for myself, I think that if the question of identity arose in a case of house-breaking and it were possible to adduce evidence that there was some peculiarity in relation to earlier housebreakings, which was apparent also in the case of the housebreaking charged, so as to stamp the accused man not only with the housebreaking charged but with the earlier housebreakings, and there was evidence that he had committed the earlier housebreakings, that would fall within the same principle of admissibility, not to prove his propensity for housebreaking, but to prove that he was the person who committed the housebreaking charged.

So that Court was of the opinion that similar fact evidence was admissible to prove the very fact of identity.

Evidence of similar facts showing “modus operandi” was admitted specifically in R. v. Giovannone[4], upon a charge of false pretences and the Court, in ruling the evidence admissible, cited a series of cases in the English courts to like effect.

Nor is the fact that the incidents recounted in the similar fact evidence occurred after that upon which the charge was based any bar to admission of evidence upon reference to such incidents. Phipson, On Evidence, 12th ed., para. 462, states citing authorities therefor:

Generally, evidence of similar facts not only prior to, but subsequent to, that in question may be given, as well as the defendant’s conduct and demeanour in connection and of any surrounding facts showing his motive or intention. However, the similar facts must have occurred within a reasonable limit of time; although where by statute a charge has to be brought within a limited period after the offence, evidence of similar offences committed beyond that limit is not thereby inadmissible.

In the present case, both incidents as to which evidence was adduced occurred the very next day. I have, therefore, concluded that the evidence as to these two remarkably similar and well nigh contemporaneous robberies was admissible. The statements of the accused in reference thereto, having been found voluntary, as that word is used in the jurisprudence, are therefore also admissible. For

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these reasons, the application of s. 613(1)(b)(iii) of the Criminal Code upon the question need not be considered.

I turn next to the issue of drunkenness. The trial judge in his charge did deal with drunkenness but failed to allude to that so-called defence upon outlining to the jury the theory of the defence. It would appear that defence counsel objected, during a conference in chambers, to such omission and so the trial judge recharged the jury as follows:

I listed the theories of the defence and the Judge in charge of a Jury is required to state the different theories of the defence and to review briefly what the defendants contend is the case, and I enumerated those, you recall, toward the end of my address. There was one I overlooked to mention, and I simply want to say now that both defendants also contend that the fact that they were drinking, they contend, would warrant reducing the charge from murder to manslaughter. This is their contention. I am not telling you that this is the law that must be applied, but I neglected to point out that that is one of the things. I think, if I understand it correctly, they both rely on this, perhaps Mr. Mooney more so than Mr. Alward. As his counsel pointed out, the statement given by Mr. Mooney was shorter. The written statement was shorter, and he wound up with the words, “That’s all I can remember about what happened there”, or something to that effect, which might have indicated that perhaps he had more to drink.

I am not going to explain to you again the degree of intoxication or the degree of drunkenness that would be required to reduce it from murder to manslaughter, because I dealt with that very fully earlier in my charge. The reason for calling you back now is merely to remedy the technical omission, or the omission I made in my charge. That is all. Will you go out now, please?

Had the only error been the failure to refer to drunkenness in outlining the theory of the defence, such recharge would have been curative. However, as Limerick J.A. points out, the charge itself was erroneous on the issue of drunkenness. As the learned justice of the Court of Appeal points out, and it need not be repeated here in detail, there was error in failure to detail what “specific intent” was so as to clarify whether drunkenness would be a bar to conviction for murder. Moreover, several references in the charge would seem to imply that some burden lay upon the accused to prove that

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their intoxication prevented them from forming the necessary intent while, of course, the Crown must prove every essential element of the charge beyond reasonable doubt. One of these elements is intent and, therefore, the evidence must leave no reasonable doubt that the accused were not so intoxicated as to have prevented them from forming the necessary intent. Limerick J.A. stated:

All the accused must do is raise a reasonable doubt as to his capability of forming the specific intent necessary to constitute the offence of murder.

With deference, I think it may be more accurately stated that all that is needed is for the jury to have a reasonable doubt as to the accused having such capacity. Thus any implied onus on the defence is avoided.

Lemerick J.A. having noted these faults in the charge, which I regard as serious, proceeded to cite the judgment of this Court in R. v. Squire[5], at p. 19 (S.C.R.):

It is, however, equally plain that a trial judge is under no duty to invite the jury to consider defences of which there is no evidence or which cannot reasonably be inferred from the evidence.

And then considering the evidence in some detail, he came to the conclusion that there was no evidence on which a jury could reasonably conclude that the accused might not have the capacity to form the necessary intent.

With respect, I am of the opinion that Limerick J.A. was in error in this course. There was evidence from the witness James McNeil and the witness Linda Alward that both the accused were to some degree intoxicated. There was, moreover, in the statements of both accused, submitted by the Crown, strong allegations that they had been heavily intoxicated. It was for the jury, properly instructed, to determine, whether on the above and all the other evidence, they had any reasonable

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doubt that the accused had the capacity to form the necessary intent. This, in my opinion, was not a problem of determining whether or not there was any evidence, a task for the judge, but rather of weighing the evidence, a task for the jury.

Limerick J.A. concluded his reasons as follows:

As there was no evidence on which a jury could reasonably conclude the appellant might not have had the ability to form the intents which it was necessary for the Crown to establish, it was not necessary for the trial judge to charge the jury as to the effect of intoxication and his directions relating thereto were surplusage and, though erroneous, occasioned no miscarriage of justice as the jury, on the evidence, was not required to consider that defence. I would apply s. 613(1)(b)(iii) of the Criminal Code.

I would dismiss the appeal.

I have expressed a different conclusion above but I am of the opinion that s. 613(1)(b)(iii) of the Criminal Code must be considered. Although I have concluded that there was evidence of intoxication which should have been left to the jury, properly instructed, as I have outlined, the problem remains whether the failure to properly charge the jury caused any substantial wrong or miscarriage of justice. In Colpitts v. The Queen[6], at p. 755, this Court set out the test, i.e., whether the jury charged as it should have been could, as reasonable men, have done otherwise than find the appellant guilty. Limerick J.A. applied that test in Ambrose v. The Queen[7], saying:

In my opinion, the massive weight of the circumstantial evidence against Hutchison and his co-accused Ambrose is so over-whelming that no reasonable jury properly instructed and acting judicially could have come to any conclusion other than that both of the accused were guilty of the murders of the two police officers as charged in the indictment, notwithstanding the cumulative effect of the five errors referred to above.

That statement was approved in this Court: 30 C.C.C. (2d) 97 at pp. 105-6. Applying that test here, I am unable to see how any jury, properly charged, could as reasonable men have failed to

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convict these appellants or specifically could have concluded that there was any reasonable doubt that each of them had the capacity to form the specific intent to rob and assault the late Mr. Willet. It is not necessary to outline that evidence, sufficient to say that it did convince a jury, a fact which cannot be ignored, despite the faults in the charge; it convinced the Court of Appeal and it has convinced this court.

I would dismiss the appeals.

The judgment of Ritchie and de Grandpré JJ. was delivered by

DE GRANDPRÉ J.—My brother Spence, in his reasons, concludes that the appeals should be dismissed. I agree with that conclusion and I also agree with his reasons, except as to the defence of drunkenness.

On that issue, I share the opinion of the Court of Appeal that there was no evidence on which a jury, properly instructed, could find that there existed such intoxication as to negate criminal intent. To my mind, there did not exist any evidence capable of that interpretation, so that the errors that the trial judge possibly committed when directing the jury on that issue have no relevance. That particular defence in the circumstances was non-existent.

If I held the opinion that there was some basis for a defence of intoxication, I, like my brother, would without hesitation apply art. 613(1)(b)(iii) of the Criminal Code.

Appeals dismissed.

Solicitor for the appellant, Alward: J. Brian Neill, Fredericton.

Solicitor for the appellant, Mooney: J. Brian D. Malone, Fredericton.

Solicitor for the respondent: William Kearney, Fredericton.