Leblanc v. R., [1977] 1 SCR 339

Supreme Court of Canada

Leblanc v. R., [1977] 1 S.C.R. 339

Date: 1975-06-26

Jean-Paul Leblanc Appellant;

and

Her Majesty The Queen Respondent.

1975: February 13 and 14; 1975: June 26.

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

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Criminal negligence causing death—Mens rea—Breach of the Aeronautics Act—Evidence—Admissibility of similar facts—Sufficiency of explanations given to the jury—Aeronautics Act, R.S.C. 1970, c. A-3—Criminal Code, ss. 191, 192 (now 202 - 203).

On July 3, 1968 appellant, who was at the control of his aircraft in an uninhabited region of northern Quebec, was flying very low over two persons on the ground whom he was supposed to take back to civilization, and one of them (Giguère) was hit by a part of the aircraft and fatally injured. There was no need for appellant to act in this manner, and his manoeuvre, which consisted in diving toward the men on the ground to frighten them, was described in aeronautical terms as a “pass”. Appellant was charged under s. 191 of the Criminal code (now s. 202) with criminal negligence causing death, and a jury convicted him. He was sentenced to two years’ imprisonment.

The conviction and sentence were affirmed by a majority in the Quebec Court of Appeal. Hence the appeal to this Court. Appellant relied on two arguments: (1) evidence of so-called “similar” facts (three “passes” before Giguère’s death) was not admissible; (2) the trial judge did not make it sufficiently clear to the jury that a mere breach of the federal Aeronautics Act and the regulations made thereunder did not, in itself, constitute criminal negligence.

Held (Laskin C.J., Dickson and Beetz JJ. dissenting): The appeal should be dismissed.

Per Martland, Judson, Ritchie, Spence, Pigeon and de Grandpré JJ.: Appellant’s grounds of appeal should be examined in the light of the decisions which examined the notions of recklessness and advertent negligence contained in ss. 191 and 192 (now 202 and 203) of the Criminal Code, which are new law (1953-54).

With respect to the admissibility of “similar facts”, it must be remembered that in a case such as the one before the Court, the Crown is required to prove: (a) the

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breach of an obligation imposed by law; (b) that the breach indicated wanton or reckless disregard for the lives or safety of other persons. Although in most cases, the fact itself proves the intent, and that was the situation in this case, this would in no way prevent the Crown from going one step further and proving by the similar conduct of appellant in other circumstances of the same type that the mens rea definitely existed. The Privy Council recognized the admissibility of this evidence if it be relevant to an issue before the jury, and held that it may be so relevant if it bears upon the question whether the acts alleged were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The evidence of similar facts is admissible, not to prove commission of the crime mentioned in the indictment but to establish guilty intent. The trial judge’s charge shows that he clearly made the necessary distinction regarding similar facts and gave the jury the necessary instructions.

Although the trial judge did not make it clear to the jury that a mere breach of the Aeronautics Act was not necessarily proof of the “wanton or reckless disregard” required by the definition of the crime of criminal negligence, he presented the point at issue squarely to the jurors and made it clear that the Crown must prove each and all of the points of the crime, the essential element of which was that the accused had shown wanton or reckless disregard.

Per Laskin C.J. and Dickson J., dissenting: In examining the admissibility of similar fact evidence, our highest courts have applied the general exclusionary rule that the accused has only to answer the specific charge contained in the indictment. However, the courts have recognized the need to make an exception to the rule and admit evidence of similar acts, not to prove the accused’s disposition to commit the crime charged but where it is relevant to prove identity or intent or to negative accident or mistake or to rebut a defence otherwise open to an accused. However, evidence of other offences is admissible to negative a defence of innocent intent or accident only if such a defence is raised by an accused or it can be said from the facts that it will be open to the accused. In these circumstances, the judge should have awaited some intimation that accident was going to be raised as a ground of defence before admitting similar fact evidence to rebut a possible but improbable defence of accident. The Crown does not have the right to “credit the accused with fancy

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defences”.

After this evidence was admitted to rebut a defence which was never advanced, it became at the very least the duty of the trial judge to instruct the jury to disregard that evidence. Not only did he fail to do so, but he used the similar fact evidence to condemn the accused in the strongest terms. Although advising the jury to make a distinction between the offence charged and similar acts, the judge instructed the jury that the evidence of similar acts gave accuracy to the testimony of a Crown witness. This was error. It was also reversible error on the part of the judge to tell the jury that, notwithstanding the failure of the accused to establish any facts supporting a defence which the evidence of similar acts could rebut, the similar fact evidence nonetheless retained all of its validity. By describing in detail the three incidents, which were considered as similar facts, and stating that the evidence of these incidents helped to confirm the act of the accused on July 3, 1968, the judge led the jury to decide the culpability of the accused not only for his act of July 3 but also for his conduct in these three incidents. The accused was placed in the position of having to defend four separate acts and not one. These errors go to the very root of the case and are of such nature and gravity as to entitle appellant to a new trial.

Beetz J., (dissenting): Even if it were conceded that the evidence of similar acts was admissible, the trial judge had to distinguish clearly between the similar acts and the act with which appellant was charged. He attempted to do so but he definitely did not succeed.

[R. v. Baker, [1929] S.C.R. 354; Arthurs v. The Queen, [1974] S.C.R. 287; O’Grady v. Sparling, [1960] S.C.R. 804; Peda v. The Queen, [1969] S.C.R. 905; Thompson v. The King, [1918] A.C. 221; Noor Mohamed v. The King, [1949] A.C. 182; R. v. Wray, [1971] S.C.R. 272; R. v. Titchener (1969), 35 C.R. 111, referred to; Makin v. The Attorney General for New South Wales, [1894] A.C. 57, discussed.]

APPEAL from a decision of the Court of Appeal of Quebec[1] which affirmed the verdict of guilty delivered by a jury. Appeal dismissed, Laskin C.J. and Dickson and Beetz JJ. dissenting.

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Pierre Maltais, for the appellant.

François Tremblay, for the respondent.

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

DICKSON J. (dissenting)—The appellant accused was convicted by a jury on a charge of criminal negligence causing death, contrary to ss. 191 and 192 of the Criminal Code (now ss. 202 and 203) in these words:

[TRANSLATION] On or near July 3, 1968 at Lake Hendry, county of Duplessis, district of Hauterive, Jean-Paul Leblanc, of Baie-Comeau, did unlawfully and by criminal negligence cause the death of another person, namely Patrick Guy Giguère, ss. 191 and 192 of the Criminal Code.

The trial judge sentenced the accused to two years’ imprisonment. The conviction and sentence were affirmed by a majority in the Quebec Court of Appeal (Owen and Salvas JJ.A., Rivard J.A. dissenting) and the appeal to this Court comes as of right on a question of law in respect of which there was a dissent in the Court of Appeal.

The basic facts are few and straightforward. On July 3, 1968 Evariste Normand and Patrick Guy Giguère, employees of the Province of Quebec, were flying to Fort Chimo aboard a Beaver aircraft, the property of the Department of Transport and Communications of Quebec and piloted by the accused, Jean-Paul Leblanc. The day was warm and sunny with no wind. En route the aircraft landed at Lake Hendry at 8:30 a.m. as Normand and Giguère had work to do in that area. The pilot agreed to return for them at about 2:00 p.m. At the appointed hour, their work completed, Normand and Giguère walked to the middle of a clearing, facing the sun, amid the heat and flies, to await the aircraft. Normand testified that they saw it approaching at an altitude of 500 feet when it was about 2,000 feet away. The aircraft made a complete circle to the left and then came toward them, in a dive. Normand escaped injury by throwing himself upon the ground. Giguère, not as fortunate, was struck by an underpart of the air-

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craft and killed. Aboard the aircraft was a passenger by the name of Joseph Tremblay who testified that the pilot, for amusement, had decided to dive toward the two men on the ground in order to frighten them. This is what is termed “making a pass” and it was, it would seem, a common practice of the accused and some of the other bush pilots flying in that remote region. On this occasion, as the accused and Tremblay flew overhead above Normand and Giguère, the accused tapped Tremblay on the shoulder, pointed to the two men on the ground below, and laughing, said in French, “I think we ought to make a pass—let us frighten them”; he then put the aircraft into a dive. The accused miscalculated the distance between ground and aircraft, and the tragic accident resulted. At about 7:00 p.m. the same evening the accused visited the widow of Giguère to ask her pardon for causing the death of his good friend, her husband. He explained that he had wanted to make a “pass”, being in the habit of doing this. At the trial the accused testified on his own behalf. He limited himself to saying he was a licensed pilot but he did not offer any explanation or excuse for his act. There was just one simple issue to put before the jury—in making the “pass”, did the accused show “wanton or reckless disregard for the lives or safety of other persons”?

The appellant raises two principal grounds of appeal, (i) the trial judge erred in admitting evidence of similar facts, adduced by the Crown, showing that during the weeks preceding the fatality the appellant had made several low “passes” over persons on the ground and over boats on a lake; (ii) the trial judge erred in his charge to the jury by not sufficiently explaining that a violation of the regulations passed pursuant to the federal Aeronautics Act, R.S.C. 1970, c. A-3, did not by itself constitute criminal negligence.

Neither counsel has cited any case in which similar fact evidence has been admitted on a crimi-

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nal negligence charge; the issue usually arises in murder, abortion or gross indecency cases. The principles to be applied, however, in considering the admissibility of similar facts are reasonably well established. The general rule was stated by Lord Herschell L.C. in the leading case of Makin v. Attorney-General for New South Wales[2], at p. 65:

…It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.

The same general rule found expression in Rex v. Bond[3], in the judgment of Kennedy J., at pp. 395-396, in words which seem to me particularly apt in the case at bar:

When a prisoner is charged with an offence it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment which alone he can be expected to come prepared to answer. It is therefore a general rule that the facts proved must be strictly relevant to the particular charge and have no reference to any conduct of the prisoner unconnected with such charge; therefore it is not allowable to shew on the trial of an indictment that the prisoner has a general disposition to commit the same kind of offence as that for which he stands indicted: Russell on Crimes, 6th ed. (1896) vol. 3, p. 403. Thus it was resolved by all the judges nearly one hundred years ago in Rex v. Cole, ((1) Mich. T. 1810. Cited from M.S., Russell on Crimes, 6th ed. vol. 3, p. 403, note (n).)

This passage by Kennedy J., equally apt, follows, at p. 398:

Nothing can so certainly be counted upon to make a prejudice against an accused upon his trial as the disclosure to the jury of other misconduct of a kind similar to that which is the subject of the indictment, and, indeed, when the crime alleged is one of a revolting character, such as the charge against Bond in the present case, and

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the hearer is a person who has not been trained to think judicially, the prejudice must sometimes be almost insurmountable.

Rex v. Bond was followed in this Court in R. v. Barbour[4], at p. 467. Also in this court one finds the observation of Taschereau J. in Koufis v. The King[5] at p. 490, to this effect:

When an accused is tried before the Criminal Courts, he has to answer the specific charge mentioned in the indictment for which he is standing on trial, “and the evidence must be limited to matters relating to the transaction which forms the subject of the indictment” (Maxwell v. Director of Public Prosecutions, (1935) A.C. 309). Otherwise, “the real issue may be distracted from the minds of the jury,” and an atmosphere of guilt may be created which would indeed prejudice the accused.

The general exclusionary rule, fundamental to our law of evidence, has thus found acceptance by our highest courts and for very good reasons, cogently stated by Wigmore, Evidence (3rd ed., 1940), art. 194: (1) The over-strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts; (2) The tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offences; (3) The injustice of attacking one necessarily unprepared to demonstrate that the attacking evidence is fabricated.

There is, however, a limited but legitimate area of exception to the general exclusionary rule that the accused has only to answer the specific charge contained in the indictment. The exception was formulated in Makin’s case where, after stating the exclusionary rule, Lord Herschell continued with this passage:

On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or

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accidental, or to rebut a defence which would otherwise be open to the accused.

Over the years some gloss has been put upon the words of Lord Herschell in such well‑known cases as Thompson v. The King[6], R. v. Sims[7], Noor Mohamed v. R.[8] and Harris v. D.P.P.[9] The result has been that the courts have admitted evidence of similar acts, not to prove the accused’s disposition to commit the crime charged but where it is relevant to prove identity or intent or to negative accident or mistake or to rebut a defence otherwise open to an accused.

On a charge of criminal negligence, evidence adduced by the Crown disclosing that by his conduct the accused showed wanton or reckless disregard for the lives and safety of other persons is prima facie evidence of criminal negligence. Laskin J., as he then was, dissenting in Arthurs v. The Queen[10], at pp. 306-307, commented on the mens rea of criminal negligence:

Although the question of the type of mens rea involved in criminal negligence, as defined in s. 191(1), was not directly in issue in the judgments of this Court in O’Grady v. Sparling, Binus v. The Queen, and Peda v. The Queen, these cases support the conclusion that subjective intent is not a necessary ingredient of criminal negligence.

That is to say, the mens rea of criminal negligence is determined by an objective standard. The majority of the Court in that case did not disagree with the statement by Laskin J. It is doubtful that similar fact evidence would be admissible to prove subjective intent—proof of subjective intent not being a requisite of the offence.

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In any event, the Crown contends in this case that the similar fact evidence was properly adduced in anticipation of a “defence” of accident caused, for instance, by the mechanical failure of the airplane or other circumstance beyond control of the appellant. Evidence of other offences is admissible to negative a defence of innocent intent or accident only if such a defence is raised by an accused or it can be said from the facts of the case that such a defence was rationally open to the accused. A question also arises as to when such evidence should be introduced. In Brunet v. The King[11] at p. 85, Idington J. said:

Whether such proof should in all cases be tendered in support of the case for the prosecution or only be given by way of rebuttal must depend upon the particular circumstances of each case.

The English rule would seem to be that evidence as to other occasions should not be admitted “unless and until the defence of accident or mistake, or absence of intention … is definitively put forward”: Perkins v. Jeffery[12], at p. 709. As appears from the headnote in Brunet v. The King, supra, the accused was charged with having unlawfully used means to procure a miscarriage. His defence was that of innocent and lawful purpose. The evidence of other women that he had previously practised abortion on them by a similar method was held to be admissible in rebuttal. Anglin J. said, at p. 108:

Nor have I any doubt that the evidence was properly received in rebuttal. It was offered to meet the defence of innocent purpose put forward by the accused. While such a defence was always open, there was no probability of its being set up until the prisoner gave his testimony. It was then actually in issue.

There are several Canadian authorities to the effect that it is not necessary to withhold evidence of similar acts until the defence puts forward a

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case of innocent or lawful purpose: Rex v. Anderson[13]; R. v. Cline[14]. The argument in support of this latter position is that a plea of not guilty puts everything in issue and that the Crown should not split its case by giving in rebuttal, instead of in chief, confirmatory evidence in its possession. There is no hard and fast rule: Holmes v. The King[15]. Much will depend upon the course which the proceedings take. It would seem to me, however, that the Crown should not adduce evidence of other similar acts unless it appears from what was said at the time of arrest or from the evidence presented by the Crown at trial or from the cross-examination of Crown witnesses or from the evidence of defence witnesses that the defence which the evidence of similar acts is intended to refute is really in issue; otherwise the accused may be gravely prejudiced by evidence introduced ostensibly to meet a possible defence but in truth to bolster the case for the Crown.

In Brunet v. The King, supra, Anglin J., at p. 99, adopted Darling J. who said in Rex v. Bond, supra, that Lord Herschell did not mean:

…that such evidence might be called to rebut any defence possibly open but of an intention to rely on which there was no probability whatever.

To be admissible the evidence must be relevant to some issue before the jury in respect of the act charged in the indictment. Mere similarity is not of itself enough.

I do not think the evidence of similar acts introduced in this case was admissible on the ground suggested or on any other ground. The accused did not intend to kill Giguère or to cause him bodily harm, otherwise he would have faced a murder charge. He intended to make a “pass” with the aircraft; his real intent, his identity and the actus reus were never in doubt or an issue. There was nothing in the evidence of Tremblay or

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of Normand or of Mrs. Giguère to suggest mechanical failure or aircraft defect which might support a defence of accident. The aircraft was inspected two days later and found to be in good flying condition. In these circumstances, I incline to the view, with great respect, that the judge should have awaited some intimation that accident was going to be raised as a ground of defence before admitting similar fact evidence to rebut a possible but improbable defence of accident.

The Crown does not have the right to “credit the accused with fancy defences”: Lord Sumner in Thompson v. The King, supra. Viscount Simon in Harris v. D.P.P., supra, said that what Lord Sumner meant by this expression was that “evidence of similar facts involving the accused ought not to be dragged in to his prejudice without reasonable cause”. The evidence of “passes” made by the accused at other times served only to brand him as a reckless character with a disposition for dangerous acts and little concern for his own life or the lives of others. He was surrounded by an aura of guilt that might well have prejudiced the chance of the jury fairly trying the case.

I am further of the opinion that when the similar fact evidence was admitted to rebut a defence which, as it transpired, was never advanced, it became at the very least the duty of the trial judge to instruct the jury to disregard that evidence. He failed to do so. Instead he used the similar fact evidence to condemn the accused in strongest terms. Early in the charge the judge said:

[TRANSLATION] YOU must forget for the moment the evidence of similar acts, because he is not on trial for having committed those acts. Thus, you must make a distinction. That evidence was only admitted in order to support evidence of the accused’s intention to act as he did on July 3, 1968, with respect to Normand and Giguère, and to preclude a defence that the descent towards the persons on the ground was due to mechanical failure, or to fortuitous causes beyond the pilot’s control. Accordingly, as I shall explain to you in due

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course, the evidence of similar acts gives the testimony of Tremblay, who took part in those similar acts, an appearance of exceptional accuracy, in that, having… being a passenger, he was in the aircraft at the time of what were described as “three passes”.

Although advising the jury to make a distinction between the offence charged and the similar acts, the judge instructed the jury that the evidence of similar acts gives exceptional accuracy to the testimony of the Crown witness Tremblay. This was error.

Later in the charge the judge referred to the evidence of similar acts at length, describing the minutiae of each incident. To appreciate the gravity of the misdirection, it becomes necessary to quote further extracts from the charge. The judge said:

[TRANSLATION] Similar acts are acts of the same type as one of the essential elements of the crime charged. For there to be a crime in the case at bar it is necessary for the death to have been caused by criminal negligence within the meaning of s. 191. These acts, then, are acts of the same type, evidence of which was designed to refute a defence that the accused might otherwise have put forward.

He continued by telling the jury of the defences the accused might have advanced:

[TRANSLATION] An important means of defence which the accused might have put forward in the present case, would be to establish the facts and circumstances showing that the accused had started the descent in a dive because it was necessary for him to do so because of… a mechanical defect, or that he did not act voluntarily, and that he did not act freely, …that he did not undertake the nose dive, flying near the ground above the persons he was to meet, through wanton or reckless disregard or by failing in his duty.

The judge then, improperly in my view, instructed the jury on the failure of the accused to establish any of those defences:

[TRANSLATION] NOW that the hearing is concluded, it can be said that the defence did not succeed in establishing this point. The point was one which the defence did not establish. Accordingly, the evidence of similar acts still retains all its validity, and the need to authorize it is now apparent, as it was during the voir dire.

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I am of the opinion it was reversible error on the part of the judge to tell the jury that notwithstanding the failure of the accused to establish any facts supporting a defence which the evidence of similar acts could rebut, the similar fact evidence nonetheless retained all of its validity. Why? By the end of the trial and prior to the charge by the judge it was apparent to all that the anticipated defence which the evidence was intended to rebut had not been raised. The only possible justification for the evidence had disappeared.

The judge once more instructed the jury that the similar fact evidence supported the evidence of the Crown witness Tremblay:

[TRANSLATION] In effect, it supports the testimony of Tremblay, as a passenger, during the incident. Tremblay was a passenger during the nose dive over Fauchon and Proulx, and he was a passenger during the nose dive over Mrs. Giguère’s group at Whales Head. The evidence of these distinct but similar occurrences served to confirm the testimony of Tremblay, during the event, since he had then acquired standards of comparison for judging the speed and angle of descent. When he made the passes, over Fauchon, over Mrs. Giguère’s group, two passes witnessed by Tremblay, since the latter was a passenger at the time, and when… when he came to the last pass, the fatal pass, which was to kill Giguère, Tremblay, having undergone the two earlier experiences, was in a position to compare, and to tell the Court, from the comparison made by him, of the disregard and foolhardiness of the accused.

The judge then narrated the first of the similar acts in respect of which evidence was adduced, in which the accused had passed at low altitude over the heads of Cpl. Proulx and Cpl. Fauchon and concluded his review of this incident in these words:

[TRANSLATION] Here again, we have direct evidence of the occurrence, evidence given by Fauchon, and evidence given by Tremblay, we have direct evidence of the intention not to do his duty, to fly his aircraft with wanton and reckless disregard for the lives or safety of other persons, and when he fails to do his duty, he is flying recklessly within the meaning of the Aeronautics Act.

The judge used the evidence of Fauchon, who was not involved in any way in the incident giving rise

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to the charge against the accused, as direct evidence of the intention of the accused not to do his duty, to fly his aircraft with wanton and reckless disregard for the lives or safety of other persons, adding that when he fails to do his duty he is flying recklessly within the meaning of the Aeronautics Act. The judge erred in my view in speaking at one and the same time of the imprudence with which the Aeronautics Act is concerned and with the recklessness which is an ingredient of a charge of criminal negligence. A jury might well gain the impression that if the accused was in breach of the duty owed by him under the Aeronautics Act he could be guilty of the type of recklessness prescribed by the Criminal Code. This is error of the nature of that which earned the accused a new trial in R. v. Titchner[16], a decision of the Ontario Court of Appeal in a highway traffic fatality case.

The judge then reviewed an incident in which the accused had made a “pass” over two men who had been sport fishing and concluded this review with the following instruction to the jury:

[TRANSLATION] In this incident, we again have direct evidence of his wanton and reckless disregard, contrary to what was his duty, endangering the lives and safety of other persons.

With respect, the conduct of the accused on this occasion was irrelevant to the charge which the accused faced and the jury should have been so instructed. Instead they were told to regard it as direct evidence of wanton and reckless conduct by the accused.

A third incident was then canvassed and the judge concluded with these words:

[TRANSLATION] YOU can ask yourselves whether he was in fact endangering the lives and safety of these persons. The very fact of the accident involving Giguère proves that such an accident could have occurred at any time, on any of the three occasions described above, if, that is, turbulence was encountered, the engine faltered for any of a number of reasons, he was unable to maintain his low altitude and descended below it, or if he committed the error referred to by an expert witness for the defence, namely that when you are a certain

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distance from the ground it is almost impossible to calculate the distance between the ground and the plane.

These similar facts help to confirm, though we now know evidence of them was not necessary, the voluntary act committed by him on July 3, 1968, when he nosedived over Giguère and Normand, with the result that he caused the death of Giguère.

It was neither the duty nor the right of the jurors to ask themselves whether the accused was endangering the lives of the group of persons involved in the third incident which occurred on some earlier date between June 24th and July 3rd over the Koksoak River. Again, with respect, in my opinion the judge gravely erred when he instructed the jury that the similar fact evidence helped to confirm the act of the accused on July 3, 1968. This bald statement and all of the disquisition relating to similar acts which preceded it in the charge could only have left the jury with the impression that the acts of the accused on the three earlier occasions were all to go into the scale, and be given great weight, in determining the guilt or innocence of the accused. The result was that the jury in this case was not deciding only the culpability of the accused for his act of July 3rd; they were assessing the quality of his conduct on that date and on three separate and disconnected occasions. The cumulative effect could not have been other than highly prejudicial. The accused was placed in the position of having to defend four separate acts and not one. These errors are not mere blemishes on the face of an otherwise acceptable charge. They go to the very root of the case and are of such nature and gravity as, in my opinion, to entitle the appellant to a new trial. The majority of the Court of Appeal for Quebec did not consider it necessary to pass upon the legality of the evidence of similar acts, being of opinion that even if that evidence were excluded, a properly instructed jury would be justified in bringing in a guilty verdict. With great respect, I do not share that view. I am not satisfied that the jury would have brought in the verdict they did, in the absence of that evidence.

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I do not think it necessary to elaborate on the other grounds of appeal.

I would allow the appeal, set aside the judgment of the Court of Appeal and direct a new trial.

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

DE GRANDPRE J.—Appellant was convicted by a jury of the crime stated as follows in the indictment:

[TRANSLATION] On or about July 3, 1968, at Lake Endry, county of Duplessis, district of Hauterive, Jean-Paul Leblanc, of Baie-Comeau, did unlawfully and by criminal negligence, cause the death of another person, namely Patrick Guy Giguère, ss. 191 and 192 of the Criminal Code.

This verdict was affirmed by a majority of the Court of Appeal[17].

With respect to the facts, it is sufficient to note that when the incident took place appellant, who was at the control of an aircraft in an uninhabited region of northern Quebec, was flying very low over two persons on the ground whom he was supposed to take back to civilization, and that one of them was hit by a part of the aircraft and fatally injured. The evidence showed that there was no need for appellant to act in this manner, and his manoeuvre was described in aeronautical terms as a “pass”.

Appellant has asked the Court to quash the judgment of the Court of Appeal for the following two reasons:

(1) evidence of so-called “similar” facts (three “passes” in the weeks which preceded Giguère’s death) was not admissible here;

(2) the trial judge did not make it sufficiently clear to the jury that a mere breach of the federal Aeronautics Act and the Regulations made thereunder does not, in itself, constitute criminal negligence.

Sections 191 and 192 of the Criminal Code (now 202 and 203) read as follows:

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191. (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purpose of this section, “duty” means a duty imposed by law.

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

Before we consider appellant’s grounds of appeal, a few preliminary comments should be made.

The above sections are new law (1953-54). They must be read against the background of earlier precedents, particularly R. v. Baker[18]. In that case, Duff J., as he then was, speaking for the whole Court, stated that culpable negligence exists in criminal law when there is “a want of ordinary care in circumstances in which persons of ordinary habits of mind would recognize that such want of care is not unlikely to imperil human life” (at p. 358).

In addition, in Arthurs v. The Queen[19], Ritchie J., speaking for a majority of the Court, emphasized at p. 292 that in cases where the indictment is based on s. 191 of the Criminal Code, the evidence

is to be tested in accordance with the provisions of the last-quoted section which is to say that conduct disclosing wanton or reckless disregard for the lives or safety of others constitutes prima facie evidence of criminal negligence.

Later, at p. 298, he added, still with reference to the sections in question here, that “deliberation is not, in my opinion, a necessary ingredient of the offence”.

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The nature of the offence had been considered previously in O’Grady v. Sparling[20]. Although the point at issue in that case was the constitutionality of a provincial statute, there are two passages from the reasons of Judson J., speaking for the majority, which are very relevant. At p. 808, he quotes the following comments from the 17th edition of Kenny’s Outlines of Criminal Law (at p. 34):

There are only two states of mind which constitute mens rea, and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence;

Further on, he adds (at p. 809):

What the Parliament of Canada has done is to define “advertent negligence” as a crime under ss. 191(1) and 221(1).

Section 221 is not relevant to this case.

Appellant’s grounds of appeal must be examined in the light of the above principles.

With respect to the first of the grounds, that is the admissibility of “similar” acts, it must be remembered that according to the terms of the relevant sections the Crown, in a case such as that before the Court, is required to prove

(a) the breach of an obligation imposed by law;

(b) that the breach indicated wanton or reckless disregard for the lives or safety of other persons.

In most cases, the fact itself proves the intent. See in this regard the reasons of Pigeon J. in Peda v. The Queen[21].

However, even if it could be said that that was the situation in this case, this would in no way prevent the Crown from going one step further, and proving by the similar conduct of appellant in other circumstances of the same type that the mens rea definitely existed in the case at bar. The admissibility of such evidence was recognized by the Privy Council in Makin v. Attorney General

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for New South Wales[22], which includes the following extract from the reasons of the Lord Chancellor, at p. 65:

It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

The last sentence of the above passage has been examined closely in many English cases. We need mention only two of them here.

In Thompson v. The King[23], which held to be admissible evidence of similar facts which had been submitted to demonstrate the propensity of the accused, and thereby exclude beforehand an alibi defence, Lord Sumner gave the following warning, at p. 232:

Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.

The question was considered again by the Privy Council in Noor Mohamed v. The King[24]. In this decision involving a charge of murder by poisoning, evidence that more than two years earlier the accused’s wife had died in similar circumstances (without criminal proceedings having been taken, however) was excluded. After citing the relevant

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passages from Makin and Thompson, Lord du Parcq made the following comments (at p. 191):

Their Lordships respectfully agree with what they conceive to be the spirit and intention of Lord Sumner’s words, and wish to say nothing to detract from their value. On principle, however, and with due regard to subsequent authority, their Lordships think that one qualification of the rule laid down by Lord Sumner must be admitted. An accused person need set up no defence other than a general denial of the crime alleged. The plea of not guilty may be equivalent to saying ‘Let the prosecution prove its case, if it can,’ and having said so much the accused may take refuge in silence. In such a case it may appear (for instance) that the facts and circumstances of the particular offence charged are consistent with innocent intention, whereas further evidence, which incidentally shows that the accused has committed one or more other offences, may tend to prove that they are consistent only with a guilty intent. The prosecution could not be said, in their Lordships’ opinion, to be ‘crediting the accused with a fancy defence’ if they sought to adduce such evidence. It is right to add, however, that in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.

(The emphasis is my own).

In my opinion, this is the rule that this Court adopted in R. v. Wray[25], in which Martland J., speaking for the majority, said at p. 295:

In my opinion, the recognition of a discretion to exclude admissible evidence, beyond the limited scope recognized in the Noor Mohamed case, is not warranted by authority, and would be undesirable. The admission of relevant admissible evidence of probative value should

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not be prevented, except within the very limited sphere recognized in that case.

It is true that in that case the issue was the admissibility of facts discovered through a statement of the accused held to be inadmissible, and not the admissibility of similar facts. However, the long citations from Thompson and Noor Mohamed, and the indirect reference to Makin, convince me that evidence of similar facts is admissible, not to prove commission of the crime mentioned in the indictment but to establish guilty intent.

Did the trial judge in the case at bar make the necessary distinction and give the jury the necessary instructions? The answer to this question must be in the affirmative, if we consider for example the following passages from the judge’s charge to the jury:

[TRANSLATION] YOU must forget for the moment the evidence of similar acts, because he is not on trial for having committed those acts. Thus, you must make a distinction. That evidence was only admitted in order to support evidence of the accused’s intention to act as he did on July 3, 1968, with respect to Normand and Giguère, and to preclude a defence that the descent towards the persons on the ground was due to mechanical failure, or to fortuitous causes beyond the pilot’s control.

…

Similar acts are acts of the same type as one of the essential elements of the crime charged. For there to be a crime in the case at bar it is necessary for the death to have been caused by criminal negligence within the meaning of s. 191. These acts, then, are acts of the same type, evidence of which was designed to refute a defence that the accused might otherwise have put forward.

An important means of defence that the accused might have put forward in the case at bar would be to establish facts and circumstances showing that the accused had started the descent in a dive because it was necessary for him to do so because of… a mechanical defect, or that he did not act voluntarily and that he did not act freely, and that he did not undertake the nose dive, flying near the ground above the persons he was to meet, through wanton or reckless disregard or by failing in his duty.

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Thus appellant’s first ground of appeal cannot be accepted.

With respect to the second ground, appellant does not question the trial judge’s right to quote to the jury the relevant sections of the Aeronautics Act and the Regulations made under it. Moreover, this is consistent with almost unanimous precedents and reference need only be made to the judgment of the Ontario Court of Appeal in R. v. Titchener[26]. However, appellant, on the basis of the decision in Titchener, submitted that the trial judge did not make it sufficiently clear to the jury that a mere breach of the Act and Regulations was not necessarily proof of the “wanton or reckless disregard” required by the definition of the crime of criminal negligence. In this regard, I have nothing to add to the following comments of Salvas J.A., speaking for the majority of the Court of Appeal (at p. 63):

[TRANSLATION] The trial lasted approximately three weeks. The investigation included evidence of many facts not related, or not important, to the point at issue, as well as statements of hypotheses also without significance. Under these circumstances, it was particularly important to present the point at issue squarely to the jurors, and especially to avoid any prejudice to the accused. In my opinion, the judge did this in his instructions to the jurors. He told them that, in order to establish the guilt of the accused, the Crown “must prove to your satisfaction, beyond any reasonable doubt, each and all of the… points”, which he listed on two occasions, and he added that if the Crown did not prove “any one” of these points, they must acquit the accused. On each occasion, the judge mentioned the essential element of the crime with which the accused was charged, namely, that he “showed wanton or reckless disregard for the lives or safety of other persons”.

Thus the second ground of appeal must also be dismissed.

I would dismiss the appeal.

BEETZ J.—I have had the advantage of reading the reasons of Dickson and de Grandpré JJ.

Even if it were conceded that the evidence of similar acts was admissible in the circumstances to support the evidence of wanton or reckless disre-

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gard for the lives or safety of other persons, the trial judge had to distinguish clearly between the similar acts and the act with which appellant was charged. He attempted to do so but, as in my view can be seen from certain passages of his address to the jury cited by Dickson J., he definitely did not succeed.

I would dispose of the appeal as proposed by Dickson J.

Appeal dismissed.

Solicitor for the appellant: Pierre Maltais, Hauterive.

Solicitor for the respondent: André Gaulin, Québec.