R. v. McGloan, [1976] 2 SCR 842

Supreme Court of Canada

R. v. McGloan, [1976] 2 S.C.R. 842

Date: 1975-11-27

Her Majesty The Queen Appellant;

and

Wayne Donald McGloan Respondent.

1975: October 29; 1975: November 27.

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

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Criminal law—Indictment—Construction—Wording not clear whether offence charged one of “causing death by criminal negligence” under s. 203 or “criminal negligence in the operation of a motor vehicle” under s. 233(1)—Criminal Code, R.S.C. 1970, c. C-34, ss. 203, 233(1).

The respondent was convicted under s. 203 of the Criminal Code on a charge that he “…was criminally negligent in the operation of a motor vehicle and did, thereby, cause death… contrary to the provisions of the Criminal Code.” The trial judge sentenced him to a term of five years and in addition prohibited him from driving a motor vehicle on a highway anywhere in Canada for a period of 15 years.

On appeal, the Appellate Division of the Supreme Court of Alberta quashed the conviction under s. 203 but found the respondent guilty under s. 233(1) of the Code. The Appellate Division substituted a sentence of imprisonment for nine months and a prohibition from driving for three years.

With leave, the Crown appealed to this Court. The question at issue was whether the offence alleged in the indictment was that of “causing death by criminal negligence” contrary to the provisions of s. 203 of the Criminal Code or merely one of “criminal negligence in the operation of a motor vehicle” contrary to s. 233(1).

Held (Laskin C.J. and Spence, Dickson and Beetz JJ. dissenting): The appeal should be allowed, the conviction at trial restored and the case returned to the Appellate Division for consideration of the appeal against sentence imposed pursuant to that judgment.

Per Martland, Judson, Ritchie, Pigeon and de Grandpré JJ.: The gravamen of the charge was that the

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accused “was criminally negligent… and did thereby cause death…”, and the fact that the means whereby the death was caused, i.e., by being “criminally negligent in the operation of a motor vehicle”, were also alleged did not alter the fact that the respondent was charged as “one who by criminal negligence causes death to another person” within the meaning of s. 203 of the Criminal Code. By specifying the kind of criminal negligence which caused the death, the Crown was doing no more than providing the respondent with particulars of the charge against him.

Per Laskin C.J. and Spence, Dickson and Beetz JJ., dissenting: The charge as framed was capable of being regarded as charging either crime i.e., criminal negligence under s. 233(1) of the Criminal Code or homicide under s. 203. In this state of ambiguity, the ambiguity should be resolved in favour of the accused. The Court ought not to construe an ambiguous charge as referring to the graver of two possible offences but rather to the less serious one, especially where, as in this case, its charging words are in the language of the less serious offence.

[Schwartzenhauer v. The King, [1935] S.C.R. 367, distinguished.]

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division, allowing the respondent’s appeal from his conviction under s. 203 of the Criminal Code. Appeal allowed, Laskin C.J. and Spence, Dickson and Beetz JJ. dissenting.

B. Pannu and B.A. Crane, for the appellant.

M. Harradence, Q.C., for the respondent.

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

THE CHIEF JUSTICE (dissenting)—The only question in this appeal with which I think it necessary to deal is whether the charge against the accused was one of criminal negligence under s. 233(1) of the Criminal Code or homicide under s. 203. These two sections read, respectively, as follows:

233. (1) Every one who is criminally negligent in the operation of a motor vehicle is guilty of

(a) an indictable offence and is liable to imprisonment for five years, or

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(b) an offence punishable on summary conviction.

203. Every one who by criminal negligence causes death to another person is guilty of an indictable offence and is liable to imprisonment for life.

The charge upon which the accused was tried was in these words:

You Wayne Donald McGloan stand charged before the Honourable Mr. Justice M.E. Manning, that you at or near Penhold in the Judicial District of Red Deer in the Province of Alberta, on or about the 19th day of May, A.D. 1973, [were] criminally negligent in the operation of a motor vehicle and did, thereby, cause death to Cary Lou Gatchke, contrary to the provisions of the Criminal Code…

This was the charge read to the accused at the opening of the trial. I note particularly that there was no section number of the Criminal Code that was part of the charge as read to the accused and as recorded in the transcript. When Crown counsel opened he made no reference to the Criminal Code identification of the offence on which the accused was to be tried.

The submissions that counsel made to the trial judge (who was sitting without a jury) at the conclusion of the evidence are also in the record that is before this Court. Apart from Crown counsel’s statement at the beginning of his argument, in which he simply repeated the allegations in the charge in the words of the charge, adding only that “it was admitted… that Cary Gatchke died as a result of injuries received in this accident”, there is nothing in the argument to suggest that the Crown was seeking a conviction under s. 203. The argument of counsel for the defence proceeded clearly on the basis of a charge under s. 233(1) and he urged that at the most there was dangerous driving under s. 233(4). He concluded as follows: “There is no evidence to substantiate the charge of criminal negligence within the meaning of the Criminal Code.” The trial judge in a comment at the conclusion of the arguments of counsel spoke only of the “crime of criminal negligence”. It was only after the trial judge found the accused “guilty as charged” and Crown counsel proceeded to speak to sentence that the issue was raised by Crown counsel of a penalty under s. 203. Defence counsel

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immediately objected, saying the charge was under s. 233(1) and addressed himself to the question of sentence for that offence.

The trial judge imposed a sentence of five years’ imprisonment, the maximum for an offence under s. 233(1), and also made an order prohibiting the accused from driving on any highway in Canada for fifteen years. This last-mentioned order could only be related to a conviction under s. 203, as is evident from s. 238 under which the order was made.

I am of the opinion that there ought to have been a clearer indication from the beginning as to the charge on which the accused was to be tried. True enough, the specification of a Code section in the charge is not mandatory, but in this case it would have had a clarifying effect. The record seems to me to suggest that counsel for the accused may have been misled by the terms of the charge when preparing the defence. The Appellate Division of the Supreme Court of Alberta thought that the charge came under s. 233(1) and not under s. 203 when it substituted a conviction under the former provision. So we are left, at worst from the accused’s standpoint, with a situation where the charge as framed was capable of being regarded as charging either crime. In this state of ambiguity, I am of the view that the ambiguity should be resolved in favour of the accused, a view obviously held by the Alberta Appellate Division, if indeed, it felt that there was any uncertainty.

The appeal case lodged here by the Crown in respect of its appeal does not contain a copy of the indictment as laid, but only a copy of the information which itself contains no Code section number but is in the exact form of the charge read at the trial. The file of the case, which was available to the Court, includes a number of documents to which I wish to refer. There is the Provincial judge’s report of committal on the charge in the information, a report which is signed by the Provincial judge and which reports explicitly that the

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accused was charged with criminal negligence, s. 233(1) Criminal Code and committed for trial accordingly. The names of Crown counsel and defence counsel (they appeared at trial and in the Appellate Division) are included. Next there is a copy of the indictment as preferred by Crown counsel as agent of the Attorney General. There is no variation in the wording of the charge as it was recited in the information but at the bottom of the page are the typed words “Sec. 203 Criminal Code”. Then there is a document headed “Report of the Criminal Trial”, signed and verified as correct by the Deputy Clerk of the Court. This report shows that the trial took place before Manning J., that the offence charged was “Section 233(1) C.C. Criminal Negligence”, that there was a plea of not guilty and that the accused was convicted as charged and a sentence imposed in the terms I have already set out.

I cannot agree that on this material the accused or his counsel should have had no doubt as to the exact charge against him. Perhaps defence counsel was as much at fault as Crown counsel in not clarifying the nature of the charge when they were before the trial judge and at the opening of the trial. In my opinion, however, it is for the Crown rather than for the accused to bear the consequences of the uncertainty that the official records created.

In Schwartzenhauer v. The King[1], the charge against the accused was that he counselled or procured one [S] to use instruments on a woman [K] with intent to procure her miscarriage “which offence the said [S] did commit and did thereby kill and slay the said [K] against the form of the statute in such case made and provided…”. The main point in the appeal to this Court was the admissibility of a dying declaration which was the basis upon which the accused was convicted of manslaughter. The conviction was set aside and an acquittal entered on the ground that in the circum-

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stances the dying declaration was inadmissible, but the opinion was expressed that the indictment did not charge homicide but rather the counselling of a statutory offence of procuring an abortion. I regard this opinion as supporting the view I hold here, namely, that the Court ought not to construe an ambiguous charge as referring to the graver of two possible offences but rather to the less serious one, especially where its charging words are in the language of the less serious offence. That is the present case, and I would accordingly dismiss the appeal.

I may add that were I of a different opinion so as to hold that the indictment properly charged manslaughter under s. 203, I would agree that the case should be remitted to the Alberta Appellate Division to review the sentence in the light of a conviction under s. 203. The accused did appeal sentence as well as conviction and the Appellate Division should have the opportunity to consider the appropriateness of the sentence on a conviction under s. 203.

The judgment of Martland, Judson, Ritchie, Pigeon and de Grandpré JJ. was delivered by

RITCHIE J.—This is an appeal brought with leave of this Court by the Attorney General of Alberta from a judgment of the Appellate Divison of the Supreme Court of that Province whereby it was ordered that the appeal of the present respondent from his conviction under s. 203 of the Criminal Code entered at trial before Mr. Justice Manning sitting without a jury

…be allowed and the conviction be quashed under section 203 but found guilty under section 233(1) of the Criminal Code. Sentence varied to become nine months’ imprisonment and prohibited from driving a motor vehicle for a period of three years.

It was argued on behalf of the respondent that the Attorney General had no right to appeal to this Court under s. 621(1) of the Criminal Code because the Appellate Division did not “set aside a conviction” but rather substituted a conviction for another offence than that charged in the indictment. This argument is based on the opening

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paragraph of the reasons for judgment delivered by Mr. Justice Prowse on behalf of the Appellate Division which reads as follows:

The Court is of the view that the appeal must be allowed to the extent of substituting a conviction under section 233(1) of the Criminal Code instead of a conviction under section 203 on the ground that the indictment clearly alleges an offence in the wording of section 233(1) and in our view the Appellant was guilty of that offence.

I am unable to give effect to the contention that the judgment of the Appellate Division did not set aside the conviction having regard to the terms of the order allowing the appeal and particularly to that part thereof which expressly stipulated that “the conviction be quashed under section 203”.

The question at the heart of this appeal is whether indeed the offence alleged in the indictment is that of “causing death by criminal negligence” contrary to the provisions of s. 203 of the Criminal Code or merely one of “criminal negligence in the operation of a motor vehicle” contrary to s. 233(1). It is in my view desirable that both sections should be reproduced in these reasons. Section 203 reads as follows:

203. Every one who by criminal negligence causes death to another person is guilty of an indictable offence and is liable to imprisonment for life.

Section 233(1) on the other hand provides that:

233. (1) Every one who is criminally negligent in the operation of a motor vehicle is guilty of

(a) an indictable offence and is liable to imprisonment for five years, or

(b) an offence punishable on summary conviction.

The indictment was framed in the following language:

Wayne Donald McGloan stands charged

That he at or near Penhold in the Judicial District of Red Deer in the Province of Alberta, on or about the 19th day of May, A.D. 1973, was criminally negligent in the operation of a motor vehicle and did thereby cause death to Cary Lou Gatchke, contrary to the Provisions of the Criminal Code.

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Dated this 1st day of November A.D. 1973 at Red Deer, Alberta

Sec. 203 Criminal Code.

B.S. PANNU

Agent of the Attorney General

There is in my view no ambiguity in the charge so laid although objection might have been taken to it as being duplicitous had it not been for the provisions of s. 519(1)(b) of the Criminal Code which read as follows:

519. (1) A count is not objectionable by reason only that…

(b) it is double or multifarious.

The respondent, however, cited and relied on the case of Schwartzenhauer v. The King[2] in support of the view expressed by Mr. Justice Prowse in the passage which I have quoted from his reasons for judgment. In that case the accused was charged that he did

…counsel or procure a certain person, to wit, Grietje Sundquest, to commit an indictable offence, namely, to use unlawfully on the person of Veronica Kuva an instrument or instruments with intent to procure a miscarriage of Veronica Kuva, which offence the said Grietje Sundquest did commit and did thereby kill and slay the said Veronica Kuva against the form of the statute in such case made and provided and against the peace of our Lord the King, his Crown and Dignity.

This was treated at trial as being a charge of murder and the accused was convicted of manslaughter. His conviction was affirmed by the majority of the Court of Appeal of British Columbia and the matter came to this Court by reason of the dissenting judgment of Mr. Justice McPhillips on the following grounds which are epitomized in the formal judgment of the Court:

(1) The dying declaration of Veronica Kuva was wrongfully admitted in evidence; or wrongfully admitted as to counselling; and

(2) that the learned trial judge misdirected the jury respecting the said evidence of the said Veronica Kuva.

In this Court it was unanimously agreed that the dying declaration of a deceased could only be

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admitted where his or her death was the subject of the charge and it was contended on behalf of the accused appellant that the charge was one of counselling an abortion and not one of homicide and that the declaration was therefore inadmissible. A careful consideration of the reasons for judgment of the members of this Court discloses that the declaration was found to be inadmissible on other grounds and the majority of the judges expressly stated that they were disposing of the case without deciding whether or not the charge might be considered one of homicide.

Counsel on behalf of the respondent in the present case contended that it was held in the Schwartzenhauer case that the “charge was one of counselling an abortion from which death resulted and not homicide”, but as I have indicated the majority of the judges in that case expressly refrained from making any such finding. The case therefore affords no authority whatever, either by analogy or otherwise, to support the submission that under the entirely different circumstances of the present case, the charge was one of “criminal negligence in the operation of a motor vehicle” contrary to s. 233(1) and not one of “causing death by criminal negligence” contrary to s. 203.

The gravamen of the charge here is that the accused “was criminally negligent… and did thereby cause death…” and in my view the fact that the means whereby the death was caused, i.e. by being “criminally negligent in the operation of a motor vehicle” are also alleged does not alter the fact that the respondent is charged as “one who by criminal negligence causes death to another person” within the meaning of s. 203 of the Criminal Code. By specifying the kind of criminal negligence which caused the death in this case, the Crown was, in my opinion, doing no more than providing the respondent with particulars of the charge against him.

The second two paragraphs of the reasons for judgment delivered by Mr. Justice Prowse read as follows:

With respect to the admissions supposedly made at the beginning of the trial we are of the opinion that they

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were unsatisfactory and that in making admissions the procedure set out in the judgment of the Supreme Court of Canada in Castellani v. The Queen, [1970] S.C.R. 310, should be followed.

Admissions should be made in clear, unambiguous terms and if the procedure set out in that case is followed it should assist counsel in that regard. The effect of the admissions in dispute is unimportant in view of the substitution of a conviction under s. 233 (1) for the conviction entered under s. 203.

As I consider that the conviction entered at trial was a proper one, it becomes necessary to deal with the two paragraphs last recited.

In this regard I find it necessary to reproduce the record of the admission in question which appears to have been agreed to by Mr. Doz on behalf of the accused:

MR. PANNU: (For the Crown)

At the outset, My Lord, I might bring to the attention of the Court it is agreed that the person who is alleged to have died as a result of the accident was a passenger in the accused’s vehicle and she died as a result of the injuries.

MR. DOZ:

That is correct, My Lord, sustained in the accident.

THE COURT:

Cary Lou Gatchke referred to in the charge died as a result of injuries sustained in the accident.

MR. DOZ:

In the accident.

MR. PANNU:

She was a passenger in the vehicle.

THE COURT:

She was a passenger in the vehicle?

MR. DOZ:

Accused’s vehicle.

THE COURT:

A vehicle being driven by the accused.

MR. DOZ:

The Crown will lead evidence to that effect, sir.

Section 582 of the Criminal Code provides:

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Where an accused is on trial for an indictable offence he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof.

In Castellani’s case an attempt was made on behalf of the accused to have the Court accept a lengthy written admission by the accused, one paragraph of which was objected to on the ground that it had a tendency to disparage the Crown’s case and this paragraph was deleted.

In the course of the reasons for judgment which he delivered on behalf of this Court, Chief Justice Cartwright commented on s. 582 (562 as it then was) in the following language at p. 315:

In a criminal case, there being no pleadings, there are no precisely worded allegations of fact which are susceptible of categorical admission. An accused cannot admit a fact alleged against him until the allegation has been made. When recourse is proposed to be had to s. 562 it is for the Crown, not for the defence, to state the fact or facts which it alleges against the accused, and of which it seeks admission. The accused, of course, is under no obligation to admit the fact so alleged but his choice is to admit it or to decline to do so. He cannot frame the wording of the allegation to suit his own purposes and then insist on admitting it. To permit such a course could only lead to confusion. The idea of the admission of an allegation involves action by two persons, one who makes the allegation and another who admits it.

In the present case the charge laid against the respondent involved the allegation that Cary Lou Gatchke’s death was caused by the manner in which the respondent operated his motor vehicle, and under the circumstances, one of the facts which the Crown would have to prove in support of this allegation was that the deceased died as a result of the injuries she received while a passenger in the accused’s vehicle. The exchange between counsel in open Court to which I have alluded, constituted an admission of this fact, and with the greatest respect for Mr. Justice Prowse, it was made “in clear, unambiguous terms” and I am further of opinion that the procedure set out in the Castellani case was fully complied with.

It will be apparent that for all the above reasons I am of opinion that the conviction entered at trial was a proper one and that the trial judge did not

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err in accepting the admission then rendered. I would therefore restore the conviction entered at trial.

The appeal to the Appellate Division included an appeal from the sentence of five years’ imprisonment and a prohibition from driving a motor vehicle in Canada for 15 years. The Appellate Division substituted a sentence of imprisonment for nine months and a prohibition from driving for three years on the basis of a conviction under s. 233 (1). The Appellate Division, however, had no opportunity to consider the appeal from the sentence imposed pursuant to the conviction under s. 203 entered by the trial judge. For this reason it appears to me desirable that the question of sentence be remitted to the Appellate Division for consideration.

In the result, I would allow this appeal, restore the conviction of the learned trial judge and direct that the case be returned to the Appellate Division for consideration of the appeal against sentence imposed pursuant to that judgment.

Appeal allowed, LASKIN C.J. and SPENCE, DICKSON and BEETZ JJ. dissenting.

Solicitor for the appellant: The Attorney General of Alberta, Edmonton.

Solicitors for the respondent: Harradence, Waite & MacPherson, Calgary.