R. v. Vinette, [1975] 2 SCR 222

Supreme Court of Canada

R. v. Vinette, [1975] 2 S.C.R. 222

Date: 1974-05-27

Her Majesty the Queen Appellant;

and

René Gilles Vinette Respondent.

1974: March 14; 1974: May 27.

Present: Laskin C.J. and Judson, Pigeon, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Criminal law—Murder—Accessory after the fact—Plea of guilty by principal—Admissible evidence against the accessory—Guilty knowledge—Circumstantial evidence.

Respondent was indicted on a charge of having been an accessory after the fact to the unlawful killing of a girl by one Vincent, who had pleaded guilty of manslaughter. Respondent assisted Vincent in throwing the girl’s corpse to the bottom of a flooded quarry in a weighted trunk and testified that he had done so under duress. He was found guilty by the jury. The Court of Appeal, Rinfret J.A. dissenting, quashed the conviction on the ground that the plea of guilty made by Vincent was inadmissible as evidence against his accessory. The appeal by appellant to this Court was based on the dissenting opinion of Rinfret J.A.

Held (Laskin C.J. and Beetz J. dissenting): The appeal should be allowed.

Per Judson, Pigeon and de Grandpré JJ.: Respondent was not charged jointly with Vincent. The indictable offence with which he was charged was not that of being an accomplice in the homicide, but that of being an accessory after the fact, for having received, comforted or assisted the said Vincent after the manslaughter was committed. The cases cited to the effect that if a prisoner pleads guilty it does not affect his co-prisoner thus do not apply to the circumstances before this Court. The principal and the accessory were not charged with the same offence, the charge against the accessory being that of having assisted the other party to escape justice. This offence is therefore subsequent to the principal crime and by its very nature it is subject to special rules.

A plea of guilty is admissible evidence against the person who made it. It may therefore be admitted against an accessory after the fact for the purpose of proving the principal crime, once the rule is accepted that, in such a case, evidence admissible against the principal is equally admissible against an accessory

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after the fact. The majority of the Court of Appeal erred in regarding this evidence as evidence of a confession made in other proceedings. Here the principal himself testified that he had admitted his guilt. If the defence had any reason to question the validity of this confession it had only to cross-examine Vincent or to call witnesses, which it did not do.

The manner in which the corpse was disposed of was enough in itself to apprise the accused that he was dealing with the victim of a homicide. What was obvious to him must equally have been so to the jury. His defence consisted not of denying that he committed the act but of invoking grounds of excuse which the jury rejected by finding him guilty.

So far as lack of evidence of an autopsy is concerned, this ground could not be accepted once it was admitted that the commission of the principal crime may be proved by the confession of the principal.

Per Laskin C.J. and Beetz J., dissenting: Vincent’s plea of guilty was admissible as evidence against respondent even if its probative value may have been lessened by the want of an autopsy report and by Vincent’s non-recollection of the events.

As for respondent’s knowledge of Vincent’s responsibility for the girl’s death at the time he helped him to dispose of the body, s. 23(1) of the Criminal Code requires proof that respondent knew at the material time, not that he should have known. Of course, such knowledge may be established circumstantially, but neither the reprehensibility of respondent’s act nor any notion of presumptiveness, from either the act or the conversation of which testimony was given, can avail to support an inference to prove the required guilty knowledge beyond a reasonable doubt.

[R. v. Moore (1956), 40 Cr. App. R. 50; R. v. Berry (1957), 26 C.R. 218; Re Eli Rowley (1948), 32 Cr. App. R. 147; Barone v. United States (1953), 205 F. 2d 909; Colosacco v. United States (1952), 196 F. 2d 165; R. v. Exall (1866), 4 F. & F. 922, 176 E.R. 850; Lemay v. The King, [1952] 1 S.C.R. 232, referred to.]

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec, reversing a verdict of guilty returned by a jury. Appeal allowed and case referred back to the Court of Queen’s Bench, criminal

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side, for sentence to be pronounced; Laskin C.J. and Beetz J. dissenting.

G. Girouard, for the appellant.

J. Bellemare, Q.C., and F. Rainville-Laporte, for the respondent.

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

THE CHIEF JUSTICE (dissenting)—There are two points in this appeal by the Crown from the judgment of the Quebec Court of Appeal, Rinfret J.A. alone dissenting in a five judge Court, setting aside a jury verdict of guilty and quashing the conviction of the respondent of being an accessory after the fact to the unlawful killing of a girl by one Vincent, who had pleaded guilty to a reduced charge of manslaughter in respect of her death. The first point concerns the admissibility against the respondent of Vincent’s plea of guilty to the reduced charge of manslaughter to establish the unlawful killing of the girl. Whatever may be said of the desirability of an autopsy report to establish the cause of death, especially in the light of the fact that Vincent (who testified on the respondent’s trial) remembered nothing, I am of the opinion that Vincent’s plea of guilty to manslaughter was admissible against the respondent. The fact that its probative value may have been lessened by the want of an autopsy report, and by Vincent’s non-recollection of the events in the light of an allegation that the girl died of an overdose of drugs, does not affect its admissibility. The jury was entitled to act on it as proof of the unlawful killing.

The second point concerns the respondent’s knowledge of Vincent’s responsibility for the girl’s death at the time he helped him to dispose of the body. Section 23(1) of the Criminal Code defines an accessory after the fact to an offence as one who “knowing that a person has been a party to the offence, receives, comforts or

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assists him for the purpose of enabling him to escape”. The only evidence of guilty knowledge adduced by the Crown was the evidence of a witness who testified that Vincent remarked to a questioner, who asked where they had been, «qu’il venait de capoter un gars dans le bout qui barbait tout le monde» and, when the questioner doubted the explanation, the respondent «a repondu c’était vrai». This conversation took place some hours after Vincent and the respondent dumped the girl’s body into a quarry pit, the respondent having testified that he had assisted Vincent under duress following a threat with a weapon and after being forced to drink beer laced with a drug. The girl’s body was discovered and identified fifteen days later. The Quebec Court of Appeal, Montgomery J.A. speaking for four members of the Court, was of the view that this evidence could not establish that the respondent knew of the unlawful killing at the time he helped to dispose of the body. I agree with this view.

The Criminal Code requires proof that the respondent accused knew at the material time, not that he should have known. Of course, such knowledge may be established circumstantially, but neither the reprehensibility of the respondent’s act nor any notion of presumptiveness, from either the act or the conversation of which testimony was given, can avail to support an inference to prove the required guilty knowledge beyond a reasonable doubt. As Montgomery J.A. noted in his reasons, “there is nothing to suggest that Vincent’s statement was the literal truth. If he had killed anyone it was a girl with whom he had been on friendly terms, not ‘un gars… qui barbait tout le monde’.” He went on to say that there was evidence that both Vincent and the respondent were under the influence of drugs, they were trying to explain their failure to return the automobile which the respondent had borrowed in helping Vincent to dispose of the body and they were probably trying to impress their listeners. Montgomery J.A. added that even if the respondent knew by

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that time that Vincent had killed the girl, some hours had elapsed since the body had been dumped.

The issue of guilty knowledge is not concluded by the submission that it was for the jury to find that as a fact. I do not think that the conversation to which the witness testified can be regarded as probative of the fact. There was no other evidence that would go to establish it.

I would dismiss the appeal.

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

PIGEON J.—This appeal by the Crown is against a judgment of the Court of Appeal of Quebec setting aside the verdict of guilty returned against respondent by a jury on a charge of having been an accessory after the fact to a homicide committed on the person of Lucie Beaudoin by one Henri Vincent. Vincent and the accused both testified at the trial. The former admitted having pleaded guilty of manslaughter and having accordingly been sentenced to nine years imprisonment. The latter did not deny having assisted in disposing of the corpse by throwing it to the bottom of a flooded quarry in a weighted trunk. His defence rested on the contention that he had been forced to do so and was under the influence of a drug.

The verdict was quashed on the ground that the plea of guilty made by Vincent was inadmissible as evidence against his accessory, the accused. The appeal to this Court is based on the dissenting opinion of Rinfret J.A., who said, inter alia:

[TRANSLATION] Appellant cites the two cases of R. v. Moore[1] and R. v. Berry[2].

In the first case the Court said (I am quoting the passage relied on by appellant): “If a prisoner pleads guilty, it does not affect his co-prisoner”.

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In the second, Berry and Knight were charged jointly with murder; the Ontario Court of Appeal quashed the conviction of Berry, holding that proof of a plea of guilty by Knight was inadmissible against Berry.

In this last case Roach J.A., speaking for the Court, expressed the following opinion, already reproduced in the reasons of my colleague, Mr. Justice Montgomery, but which I take the liberty of quoting again:

“The law is stated in Phipson on Evidence 9th Ed., at p. 272, to this effect that a prisoner can only be affected by the confession of himself, and not by those of, among others, his accomplices and cases are there stated to support that proposition.” (Italics in the three places are mine.)

Both cases involved co-accused, accomplices in the same crime. The Court in such circumstances correctly held that the plea of guilty by one of the accused or accomplices was inadmissible to incriminate the other.

In the case at bar, however, the facts are wholly different: appellant is not charged jointly with Vincent, he is not charged with the same crime as Vincent: the indictable offence with which he is charged is not that of being an accomplice in the murder, but that of being an accessory after the fact, for having [TRANSLATION] “received, comforted or assisted the said Vincent” after the murder was committed by the latter.

The cases cited thus do not apply to the circumstances before this Court.

In my view this reasoning is wholly correct. A distinction must be made between one who is termed an accomplice because he is charged with having participated in the offence, and one who is described as an accessory after the fact, not because he participated in the offence, but because he aided the guilty party in his attempts to escape justice. As Rinfret J.A. points out, the two cases relied on by the majority in the Court of Appeal do in fact deal with co‑accused.

In Berry the evidence for the prosecution tended to show that, while one of the accused, Berry, held the victim, the other, Knight, dealt

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him the blows which resulted in his death. The judge granted separate trials and Knight was tried first. Without awaiting the outcome of this trial, counsel for Knight offered a plea of guilty of manslaughter and this was accepted. At Berry’s trial the judge allowed evidence of this plea of guilt to be presented, which was done through the testimony of a police officer, not of Knight. It was correctly held that such evidence was inadmissible because it was not relevant and, with respect to the other accused, was only hearsay.

The Moore case involved a burglary. There was no direct evidence. The other accused, one Rynn, had confessed and submitted a plea of guilty the day before the trial. The only evidence against Moore was that he had been seen in Rynn’s company before and after the time when the latter commited the offence. It was quite properly held that the plea of guilty by Rynn could not be relied on to convict Moore, without other evidence of his participation in the act. In his reasons Lord Goddard L.C.J. said (at p. 54):

…the fact that he has pleaded Guilty is no evidence against his co-prisoner. That was laid down by both Hale (Pleas of the Crown, Vol. I, p. 585n.) and Hawkins (Pleas of the Crown, Book 2, c. 46, s. 34) and also in TONGE (1662) 6 St.Tr. 225), the accepted principle being that a man’s confession is evidence only against himself and not against his accomplices. If a prisoner pleads Guilty, it does not affect his co-prisoner…

Examination of the references shows that in each case co-prisoners only were involved, not accessories after the fact. Thus the note on the Tonge case states:

…such confession so proved is only evidence against the party himself who made the confession, but cannot be made use of as evidence against any others whom on his examination he confessed to be in the Treason.

The situation is quite different when a charge of having been an accessory after the fact is involved. In such a case the principal and the accessory are not charged with the same offence, the charge against the accessory being

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that of having assisted the other party to escape justice. This offence is therefore subsequent to the principal crime. By its very nature it is subject to special rules. Whereas in the case of several persons accused of the same offence, each may be tried before or after the others, plead guilty before or after any of the others, or be convicted regardless of the decision against any of the others, an accessory after the fact may not be tried or tender a valid plea of guilty until the principal is convicted, so that if the latter is acquitted the accessory must of necessity be discharged.

In the Eli Rowley case[3], Humphreys J., delivering the unanimous opinion of the English Court of Appeal, said (pp. 149, 150 and 151):

It being a matter which had to be decided by the jury whether Stanley and Gall were or were not guilty of felony, it was quite wrong to allow the appellant to plead guilty to having done something in the shape of assisting and comforting those two persons well knowing that they had committed a felony. That was a matter which had to be tried, and if it had been tried and Stanley and Gall had been acquitted, the prosecution would have been bound to offer no evidence on this indictment against the appellant, on the ground that it would be absurd to say that he had assisted and comforted persons whom he knew had committed a felony when they had not in fact committed a felony…

…Where a prisoner is charged with the offence of being an accessory after the fact, which involves knowledge on his part that the person whom he has received and comforted had committed a felony, it is always improper to accept a plea of guilty from him until the issue has been tried by a jury, whether the other person has committed the felony or not, unless, of course, the other person pleads guilty to the felony.

In the United States, it appears to be settled law that any evidence admissible against the principal is admissible against an accessory after the fact. In Barone v. United States[4], the United States Court of Appeals stated (at p. 914):

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…On the trial of defendant as an accessory after the fact any evidence admissible to prove the principal crime was admissible against him and the evidence objected to as hearsay was not hearsay when offered as proof of the burglary and the transportation. Neal v. United States, 8 Cir., 102 F. 2d 643.

Similarly, in Colosacco v. United States[5], it is stated (at p. 167), a number of authorities being cited in support:

Conviction of the principal is prima facie evidence of the principal’s guilt on the trial of the aider and abettor. Other evidence which would have been admissible against the principal may be admitted in evidence to prove the guilt of the principal on the trial of the aider and abettor.

A plea of guilty is obviously admissible evidence against the person who made it. It must therefore be admitted against an accessory after the fact for the purpose of proving the principal crime, once the rule is accepted that, in such a case, evidence admissible against the principal is equally admissible against an accessory after the fact, in view of the nature of the offence and the particular rules applicable to it. Moreover, in the case at bar I do not think the majority of the Court of Appeal was correct in regarding the evidence in question herein as evidence of a confession made in other proceedings. The testimony in question was not that of a third party, but that of Henri Vincent, the principal himself. Called as a witness, he said:

[TRANSLATION] I pleaded guilty to the charge of manslaughter.

In my view this clearly meant that Vincent admitted his guilt. One who says “I have confessed” ipso facto admits guilt, because confessions are not presumed to have been made in error. Authorities were cited to establish that a plea of guilty is not necessarily decisive, and that an accused may be allowed to withdraw it. This is true, but does not mean that such a confession is worthless. In the present case, there is proof that it was a true confession because Vincent went on to say that he had

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been sentenced to nine years imprisonment. If the defence had any reason to question the validity of the confession made by Vincent, it could have cross-examined him or called witnesses to dispute his statement. This it did not attempt to do.

Also, it should be noted that, quite apart from the incriminating conversation in which reference was made to having “done in”, or killed, someone, the circumstances did clearly show that a homicide had been committed. One does not dispose of a corpse as was done in the case at bar except for the purpose of avoiding criminal prosecution. While it is true that in criminal proceedings the evidence must go beyond all reasonable doubt, this does not mean that the evidence must exclude any hypothesis, however improbable, that might clear the accused. Thus, against a person charged with unlawful possession, proof that the goods were recently obtained by the commission of a crime is a sufficient indication of guilt. This does not result from any express provision of the law, but from the basic importance of circumstantial evidence. The principle is of general application, as can be seen from the note on R. v. Exall[6], where a verdict of murder rendered on that basis is reported.

In the case at bar the manner in which the corpse was disposed of was enough in itself to apprise the accused that he was dealing with the victim of a homicide. What was obvious to him must equally have been so to the jury. Moreover, the accused chose to testify, and I see no basis for hypotheses in his favour which he did not dare suggest himself. His defence consisted not of denying that he committed the act with which he was charged, but of invoking grounds of excuse which the jury rejected by finding him guilty.

So far as lack of evidence of an autopsy is concerned, it is clear that this ground cannot be accepted once it is admitted that the commission of the principal crime may be proved by

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the confession of the principal. Furthermore, the rule applicable to an alleged omission by the Crown to tender all possible evidence is settled by the decision of this Court in Lemay v. The King[7]. Cartwright J., agreeing with the majority in this regard, said (at p. 256):

In my respectful opinion the learned trial judge erred in law in instructing himself that there is a rule of law such as he deduced from the judgment of the Court of Appeal in LeMay (No. 1) viz: that the unexplained omission on the part of the Crown to call a witness shewn by the evidence to have been in a position to give relevant and material evidence as to the guilt or innocence of the accused necessitates an acquittal.

As for the other grounds raised against the verdict by the accused, they are dealt with to my entire satisfaction in the reasons of Rinfret J.A.

On the whole, I would allow the appeal, set aside the judgment of the Court of Appeal, restore the verdict and refer the case back to the Court of Queen’s Bench (Crown Side) for passing sentence.

Appeal allowed and case referred back to the Court of Queen’s Bench for passing sentence, LASKIN C.J. and BEETZ J. dissenting.

Solicitor for the appellant: Gérard Girouard, Montreal.

Solicitor for the respondent: Jacques Bellemare, Montreal.