Supreme Court of Canada
Boulet v. The Queen, [1978] 1 S.C.R. 332
Date: 1976-11-02
Ovila Boulet Appellant;
and
Her Majesty The Queen Respondent.
1975: November 26; 1976: November 2.
Present: Martland, Judson, Ritchie, Spence, Pigeon, Dickson and Beetz JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Criminal law—Capital murder—Evidence—Admissibility without a voir dire of previous testimony given by the accused at the preliminary inquiry of an accomplice—Admissibility of evidence of a similar act—Evidence of mistreatment by the police—Self-defence—Instructions to the jury—Criminal Code, R.S.C. 1970, c. C-34, ss. 17 and 619(a)—Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5(2).
The appeal is against a decision of the Court of Appeal of Quebec dismissing the appeal against a verdict of guilty of capital murder.
There are two main versions of the murder and of the circumstances preceding and following it. The first version, which tends to incriminate appellant, was given by him at the preliminary inquiry of an accomplice, without objection and without requesting the protection of the law. The second version was given by appellant at his trial. The relevant difference between the two versions concerns the element of planning: according to the second version, appellant was caught up in a misadventure which he could not have foreseen, and in which he took no part except after the murder and under compulsion. Appellant objects to the admission into evidence of his first version, alleging that this testimony was extorted from him by threats and violence. He claims that at his request the presiding judge should have ascertained by a voir dire that this testimony was free and voluntary before admitting it in evidence, since the courts have held only that it is presumed to be free and voluntary.
Appellant also objects to evidence of similar acts, admitted on rebuttal after a voir dire despite his objections. Shortly after showing police the location of the grave of the victim of the murder with which he was charged, appellant directed them to a second grave where another body had been discovered by accident several days before. More specifically, appellant claims that this evidence that he knew the location of the second grave created the suspicion that he had participated in the second murder. He maintains that even if this evidence were admisssible the presiding judge
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should have exercised his discretion to exclude it, because of the damage it caused him, as he did with the evidence of appellant’s participation in the second murder provided by his testimony at the Coroner’s inquest regarding the second body, evidence which the Crown also wanted to present.
Appellant claims to have been denied the right to a full and complete defence. He objects to the limits which the judge imposed on the evidence he wished to introduce to persuade the jury to doubt the probative effect of his first version (which he says was not free and voluntary because at the time he was under the influence of violence and threats inflicted on him by the police), by calling witnesses to testify that they had also been mistreated by the police. The presiding judge allowed this evidence if it dealt with mistreatment inflicted in the presence of appellant or to his knowledge, or which was reported to him by the police or others, but ruled it inadmissible in the case of the mistreatment, if any, which was inflicted on others without appellant’s knowledge. It is this limitation to which appellant objects. Appellant also alleges that the judge lacked composure in presiding over the trial and objects to the aggressiveness of counsel for the Crown.
Appellant argues in addition that self-defence should have been submitted to the jury for consideration, and alleges, finally, that the trial judge gave his opinion on the facts in his charge to the jury and thereby influenced the verdict.
Held: The appeal should be dismissed.
Appellant’s testimony at the preliminary inquiry of an accomplice is admissible in evidence at his trial without a voir dire. The testimony in question was an earlier judicial statement given under oath, under compulsion of the law and by authority of the court, and the jury remains free to assess its probative value in view of all the evidence, in particular of the alleged illegal compulsion. The courts have long made a distinction between statements made by an accused out of court to persons in authority and those made in a judicial proceeding. Unlike the former, the latter do not require the procedure of voir dire, whether or not they were made under oath or under compulsion of the law and by authority of the court. Appellant did not succeed in demonstrating the existence of a refutable presumption that they were free and voluntary or that such a presumption could be attacked. A witness may request the protection of the law at the time of his testimony, but he may not do so after the event and this would be the effect of withdrawal following a voir dire
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In accordance with well-established principles governing the admissibility of this type of evidence, the evidence of a similar act admitted by the presiding judge was admissible because the similarity between the two murders tended to show a system. The prosecution had to prove premeditation and guilty intent, and this is precisely what a systematic course of action tends to establish. The testimony given by appellant at the Coroner’s inquest into the second murder was also admissible in principle since appellant had testified without requesting the protection of the law and since nothing showed that appellant had at that time been charged with the second murder. The presiding judge excluded it, exercising the discretion recognized in Noor Mohamed v. R., [1949] A.C. 182, and Kuruma v. R., [1955] A.C. 197, as they were interpreted at the time, but he would have committed no error in law and would not have abused his discretion if he had admitted this testimony. The exclusion of this evidence and the instructions to the jury on the subject caused no prejudice to the defence. They could only have been to its advantage, by allowing the jury to remain ignorant of an even more incriminating piece of evidence which could have been admitted. Appellant cannot possibly object to them.
With regard to the limits imposed on the evidence of mistreatment by the police, the Court agrees with the trial judge and the majority in the Court of Appeal that the use, if any, of other repressive methods unknown to the accused could not have influenced the testimony he gave at the preliminary inquiry of an accomplice, and that evidence of this mistreatment was not relevant. Moreover, if four witnesses’ consistent testimony on this question did not change the jury’s verdict, additional testimony would certainly not have had that effect except by ultimately turning attention away from the primary issue by simple accumulation.
The complaint regarding a lack of composure on the. part of the presiding judge is not a serious one. With regard to the aggressiveness of counsel for the Crown, it appears that the intemperate language on both sides did not affect the jury. With regard to self-defence, in the case at bar the judge would have erred if he had directed the jury to consider it. Finally, there was nothing unlawful or irregular in the instructions to the jury.
R. v. Scott (1856), 169 E.R. 909; Makin v. Attorney General for New South Wales, [1894] A.C. 57, followed; R. v. Warickshall (1783), 1 Leach 263, 168 E.R. 234; R. v. Baldry (1852), 2 Den. 430, 169 E.R. 568; Ibrahim v. R., [1914] A.C. 599; Fiché v. The Queen, [1971] S.C.R. 23; Powell v. The Queen, [1977] 1 S.C.R.
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362; Walker v. The Queen, [1939] S.C.R. 214; R. v. Cleaveley (1966), 49 C.R. 326; R. v. Fex (1973), 12 C.C.C. (2d) 239; Marshall v. The Queen, [1961] S.C.R. 123; R. v. Lambe (1791), 2 Leach 552, 168 E.R. 339; R. v. James (1912), 19 C.C.C. 391; R. v. Bahrey, [1934] 1 W.W.R. 376; R. v. Dietrich (1970), 1 C.C.C. (2d) 49; Thibodeau v. The Queen, [1955] S.C.R. 646; R. v. Coote (1873), L.R. 4 P.C. 599; R. v. Brown (No. 2) (1963), 40 C.R. 90, rev’d. (1963), 40 C.R. 105; R. v. Connolly and McGreevy (1894), 25 O.R. 151; R. v. Deakin (No. 2) (1912), 19 C.C.C. 274; R. v. Drew (No. 2), [1933] 4 D.L.R. 592; Marcotte v. R. (1949), 97 C.C.C. 310; McGregor v. R. (1967), 51 Cr. App. R. 338; R. v. Bateman (1886), 4 F. & F. 1068, 176 E.R. 911; R. v. Hillarn (1872), 12 Cox C.C. 174; R. v. Clark (1901), 3 O.L.R. 176; R. v. Lunan (1947), 3 C.R. 56; Tass v. The King, [1947] S.C.R. 103; Wahlberg v. The Queen, [1955] Que. Q.B. 865; Lamothe v. The Queen, [1969] Que. Q.B. 734; R. v. Tass (1946), 1 C.R. 378; R. v. Drouin, [1973] S.C.R. 747; Leblanc v. The Queen, [1977] 1 S.C.R. 339; Batary v. Attorney General for Sask., [1965] S.C.R. 465; Noor Mohamed v. R., [1949] A.C. 182; Kuruma v. R., [1955] A.C. 197, referred to.
APPEAL from a decision of the Court of Appeal of Quebec dismissing an appeal from a conviction for capital murder. Appeal dismissed.
Bernard Lamarche and Michel Denis, for the appellant.
François Tremblay, for the respondent.
The judgement of the Court was delivered by
BEETZ J.—The appeal, based on s. 619(a) of the Criminal Code, is against a unanimous decision of the Court of Appeal of Quebec, which dismissed the appeal brought by appellant against the verdict of guilty pronounced against him by a jury of the Court of Queen’s Bench at Quebec City on November 2, 1967, on the following charge:
[TRANSLATION] On or about September 18, 1965, near St-Etienne, in the district of Quebec City, Ovila Boulet, having planned the said murder, unlawfully and deliberately killed Albéric Bilodeau, thereby committing capital murder, contrary to ss. 201, 202A(2), 206(1) and 21 of the Criminal Code.
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Appellant was condemned to death but his sentence was commuted to life imprisonment.
I. The evidence
It is useful to mention at the outset that four persons were involved in this case: Jean-Jacques Gagnon, who according to his own testimony fired at the victim; appellant, who again according to his own testimony was an eyewitness to the murder and helped conceal the victim’s body, clothing, car and other evidence; André Lamothe, occasional employer of appellant: according to one version, Lamothe was also a witness to the murder, while according to other versions he returned to Quebec City before the death of the victim; and Fernand Quirion, also an occasional associate or employee of Lamothe: he arranged a meeting with the victim and saw him the day before and on the day of the murder, but was not present when it occurred.
The victim’s body was found on October 2, 1965 as a result of directions given by appellant, who led the police to the location, within a swampy woodland, at Gosford road, Saint-Gilles, Lotbinière County. The grave in which the body was buried was about seventy-five feet from the road. It was covered by branches. The body was in a more advanced state of decomposition than could be explained by the two weeks it had been in the ground: an alkaline substance, probably caustic soda, which when activated by water dissolves fats and turns them into soap, had been poured into the grave. In the neck area of the body doctors found a.32 calibre bullet which had been fired from in front. The bullet had been fired from a revolver which the police found buried elsewhere, in Ham-Sud, and which, as appears to be uncontested, was the weapon used to kill Bilodeau; it was a.32 calibre gold-plated revolver. The body was identified by the fingerprint of the only remaining finger. The victim was Albéric Bilodeau, of Sainte-Marie de Beauce, a church building painter.
Albéric Bilodeau had previously been the owner of a hotel which had burned down. Jean-Jacques
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Gagnon admitted under questioning that he had conspired with Bilodeau to set fire to the hotel. Appellant also admitted, on cross-examination, that he had pleaded guilty to the charge of conspiring with Jean-Jacques Gagnon to burn Bilodeau’s hotel.
There are two main versions of the murder and of the circumstances preceding and following it. The first version is the one given by appellant on December 2, 1965 at André Lamothe’s preliminary inquiry. After ascertaining that appellant had given testimony without objecting to answering on the grounds that his answers could tend to incriminate him, and without requesting the protection of the law, the presiding judge admitted this testimony in evidence despite the objections of counsel for the appellant, who requested a voir dire, because he alleged that this testimony had been extorted from appellant by violence and threats. The second version is that which appellant gave at his trial.
According to the first version, Lamothe, Quirion, Gagnon and appellant met at Lamothe’s home on Friday evening, September 17, 1965. Gagnon and Quirion had just seen Bilodeau with the purpose of urging him to deny the statements which he had presumably made to investigators regarding the burning of his hotel. An offer of $5,000 to Bilodeau to buy his silence or a retraction of the statements was discussed; they were to meet with him again. Appellant spent the night in his car in front of Lamothe’s house. The next morning, September 18, appellant went back to his home in Cap-Rouge, returned to Quebec City to buy some heating oil and went to Lamothe’s house. Fernand Quirion came to tell Lamothe and appellant that the meeting was set for two o’clock in the afternoon. One Roger Arsenault, an employee of Lamothe, gave the latter a gold-plated revolver and some cartridges. Lamothe and appellant went to appellant’s house in Lamothe’s Cadillac. Lamothe borrowed a bucket from appellant, filled it with caustic soda and put it with a shovel into the trunk of his car.—The bucket and the shovel were entered as exhibits at the trial.—Lamothe also put a jug of water from his house in the trunk.
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A little later, Lamothe and appellant went to meet Gagnon and Quirion. They crossed the Quebec City bridge and went toward the Hotel St-Henri in Scott together, in Lamothe’s and Quirion’s cars; they stopped a couple of miles from the hotel. At about two p.m. Quirion went to the hotel to see whether Bilodeau was there. He was not. Quirion telephoned Bilodeau’s home; he was out. Finally, they saw Bilodeau in his car going towards the hotel, accompanied by someone else. Appellant remarked:
[TRANSLATION] “He is bringing a witness. It could be the police… Don’t go”.
Gagnon replied:
“One witness more or less doesn’t make any difference to me”.
and:
“It doesn’t matter whether you get rid of one or two”.
Lamothe gave the loaded revolver to Gagnon. Gagnon and Quirion went to the hotel in Quirion’s car. Lamothe and appellant waited in Lamothe’s car. Quirion came back alone to inform them that Gagnon and Bilodeau had taken the St-Lambert’s road, and then he left them. Lamothe and appellant, in Lamothe’s car, caught up to and followed Bilodeau’s car, in which he was riding alone with Gagnon. The cars stopped on a secondary road. Appellant heard two shots. He went to Bilodeau’s car and saw Bilodeau’s body on the front seat. After this point, appellant states that he acted under the influence of threats from Lamothe and Gagnon. He took the wheel and Gagnon sat in the back seat. He followed Lamothe’s car to the Saint-Gilles woods. They carried Bilodeau’s body into the woods. Appellant undressed the body and buried it after pouring caustic soda into the grave. He did not need to use the jug of water since the ground was wet. Lamothe and Gagnon left him alone to finish this job; they went to try to dispose of Bilodeau’s car, which was blood-stained. Lamothe and Gagnon returned in Lamothe’s car to get appellant. Appellant brought Bilodeau’s clothing and personal effects and the shovel and bucket. Along the way, they threw out Bilodeau’s watch, ring and wedding ring. The clothing was burned later by appellant, at his home, with Gag-
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non’s clothing. Appellant learned from Lamothe and Gagnon that Bilodeau’s car had run out of gas. Appellant and Gagnon went to buy gas. In Bilodeau’s and appellant’s cars they went toward Plessisville. On another secondary road they set fire to Bilodeau’s car with some heating oil. They had previously removed the licence plates from the car. On the way back, Gagnon folded the plates and threw them onto the road. These plates were later found by the police. That evening, Lamothe gave the revolver to appellant and asked him to put it away. Appellant hid the revolver under his neighbour’s cottage.
In this testimony, appellant maintained that he had not known Bilodeau before the incident.
The other version of events was given by appellant in his defence at his trial. The following is a summary of it. Appellant did not see Lamothe, Gagnon or Quirion on Friday, September 17, 1965. He followed them, for no particular reason, on September 18, and with them he met Bilodeau, whom he did not know, near the Hotel St-Henri in Scott. After Lamothe and Quirion left, he went with Gagnon and Bilodeau in Bilodeau’s car, at Gagnon’s request. Gagnon and Bilodeau talked business but appellant only listened absentmindedly to their discussion. Gagnon and Bilodeau quarrelled. They decided to stop to urinate by the side of the road. The three men got out. Bilodeau went toward the trunk of his car, which he opened on the pretext of getting out some bottles of beer. Bilodeau grabbed a rifle which he pointed at Gagnon. Gagnon pushed the rifle barrel away which went off hitting no one. Gagnon pulled out a revolver and fired several times at Bilodeau, who fell dead. Gagnon and appellant placed the body on the front seat. Appellant advised Gagnon to report the matter to the police. They went back toward the trunk of Bilodeau’s car and discovered in it a shovel and a bucket of caustic soda. There was also another rifle in the car. Gagnon said “He had everything prepared to kill me; we’ll use it on him.” Gagnon threatened appellant. He told him
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they had to find a wooded place. They covered a distance of eight or nine miles, to the St‑Gilles woods. Appellant helped Gagnon to carry Bilodeau’s body into the woods and removed the clothing from it. Gagnon buried Bilodeau. Gagnon and appellant then went to get rid of Bilodeau’s car by setting fire to it. The rest of this testimony is substantially the same as the first statement made by appellant, except that he stated that he did not know what Gagnon did with the revolver. Appellant stated that the shovel and bucket produced as exhibits, which were found at his house and which he had at first identified as those used to conceal Bilodeau’s body, were not those which were in fact used for that purpose, since Gagnon had disposed of those while returning from the St-Gilles woods. Appellant stated that he did not know that Gagnon was armed. In short, the essence of this second testimony and of the defence is that appellant found himself caught up in a misadventure which he could not have foreseen, and in which he took no part except after Bilodeau’s death and under compulsion from Gagnon. With respect to his previous testimony, appellant says, it was a web of lies fabricated by the police; they extracted these lies from him through violence, including torture which they inflicted on him, and through threats including threats on his life. The violence was inflicted on him about a month before the testimony he gave at Lamothe’s preliminary inquiry, but the threat to inflict the same on him again and the threats on his life were renewed the day before this preliminary inquiry; moreover, the police had expressly told him not to refuse to answer on the grounds that his answers could incriminate him, and not to request the protection of the law. He did, however, request the protection of the law, on the advice of the Crown attorney, he said, at Lamothe’s and Gagnon’s trials.
The testimony of Jean-Jacques Gagnon and Fernand Quirion were substantially to the same effect as appellant’s second testimony.
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The first and second versions of the murder differ on two main points, of which only the second is relevant for the purposes of the case at bar: the participation of Lamothe in the murder and the planning. The first version, if believed, is overwhelmingly against appellant: the secret meetings of Friday, September 17, 1965, Lamothe obtaining the revolver and Gagnon receiving this revolver in front of appellant on September 18, the incriminating remarks of Gagnon and appellant when they saw Bilodeau and a witness going by, the shovel, the bucket, the caustic soda, the jug of water, lead irresistibly to the conclusion that the murder was not only premeditated but carefully prepared with the knowledge and assistance of appellant.
The first version was corroborated on several points by other testimony.
Neither the defence nor the prosecution questioned the police officers who were alleged to have mistreated and theatened appellant. On the other hand, the prosecution attempted to discredit appellant, Gagnon and Quirion, by bringing up their long record of convictions.
In rebuttal, the prosecution gave evidence of similar acts. This rebuttal evidence, admitted after a voir dire despite objections by the defence, was as follows: half or three-quarters of an hour after showing police the grave where Albéric Bilodeau’s body was found, appellant directed them to a second grave about a thousand feet from the first. In this grave, pointed out by appellant, a roads worker had discovered by accident several days before another body, nude and decomposed by a caustic substance. The death had probably not occurred more than three months before; the chest cavity contained two .32 calibre bullets, and the body also bore the marks of two skull fractures. Identification was possible through a fingerprint: it was the body of one Paul Brie. On cross-examination, appellant admitted that he knew Paul Brie. The Crown also wished to introduce in rebuttal the testimony appellant had given, without requesting the protection of the law, at the inquest held by the Coroner into Paul Brie’s death. However, the pre-
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siding judge refused to admit this testimony in evidence because of the extreme prejudice it would cause to the defence. This testimony is not in the record; according to what the presiding judge said about it in his report to the Court of Appeal, appellant in it admitted his participation in Brie’s murder and stated that it was he who had buried Brie. The presiding judge allowed the defence to contradict the rebuttal evidence with further evidence, but warned it that if appellant testified regarding the second grave he exposed himself to cross‑examination. The defence stated that its case was closed.
I would add in concluding this summary of the evidence that, during cross-examination of Gagnon, a third body was mentioned, found buried in Ham-Sud. It was in Ham-Sud that the police found the gold-plated revolver. The Crown attorney showed Gagnon a photograph showing Gagnon above Chandonnet’s grave and read him an extract from earlier testimony, in which Gagnon had said that he had shot Chandonnet. Gagnon replied that this testimony was extracted from him by torture and denied having killed Chandonnet. The part of the statement Gagnon made in court regarding Chandonnet was given under protection of the law.
II. Arguments in support of the appeal
1. Appellant’s first argument is that the presiding judge should have ascertained by a voir dire, before admitting in evidence the accused’s testimony at André Lamothe’s preliminary hearing, that this testimony was voluntary. According to counsel for the appellant, the courts have held only that previous testimony is presumed to be free and voluntary, but this is a presumption which it is open to the accused to rebut in a procedure comprising several stages:
[TRANSLATION] (a) the Crown moves for the judge to decide on the admissibility of the statement after a voir dire;
(b) the Crown then puts in evidence that the accused has made a statement in court;
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(c) the Crown gives evidence on a voir dire to show that s. 5(2) of the Canada Evidence Act does not apply to the said statement;
(d) when the Crown has established these facts, the judge must ask the accused whether he has any defence to offer before the judge rules on the admissibility of the statement;
(e) if the accused presents no defence on the voir dire, his statement is then admitted in evidence;
(f) if the accused presents evidence and succeeds in raising a reasonable doubt as to the voluntariness of his statement, the judge must refuse to admit it in evidence.
Appellant’s factum, at pp. 18-19.
The courts have long made a distinction between statements made by the accused out of court to persons in authority and those which are made in a judicial proceeding. The first are admitted in evidence once the presiding judge has decided alone, without the jury, after a voir dire, that they were freely and voluntarily made, the onus of proving these conditions being on the prosecution: R. v. Warickshall; Rex v. Baldry; Ibrahim v. Rex; Piché v. The Queen; Powell v. The Queen. This Court has nevertheless held that statements made to a person in authority are not inadmissible merely because they are required by law: (Walker v. The Queen); other courts have, however, ruled that the obligation imposed by law to make a statement out of court does not exempt the prosecution from showing on a voir dire that the statement was not obtained by a constraint other than that of the law: Reg. v. Cleaveley and Reg. v. Fex. This Court did not deal with the question, at least not expressly, in Marshall v. The Queen.
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The situation is different for statements made by the accused during a judicial proceeding. Some such statements are not made under oath. This is true, for example, with statements made after a warning, following a preliminary inquiry, by a person committed for voluntary examination. It is also true of guilty pleas. The courts have generally held that statements of this type are admissible in evidence because they are given voluntarily: Wig-more, On Evidence (3rd edition), Vol. 3, at pp. 298 to 302; Rex v. Lambe Rex v. James; Rex v. Bahrey. In the last case, however, the accused had inadvertently been placed under oath: Reg. v. Dietrich. Nevertheless, evidence of a guilty plea withdrawn with leave of the court is inadmissible in a subsequent proceeding: Thibodeau v. The Queen.
With respect to statements previously made under oath by the accused during a judicial proceeding, there is a relative abundance of longstanding precedents which has consistently held them to be admissible without evidence that they were made voluntarily. These statements are of two types: either the law did not require the accused to make them, or they were given under compulsion of law. Examples of the first type are found in Reg. v. Coote and in Reg. v. Brown (No. 2). In Coote, the Judicial Committee ruled that a statement that Coote, who was accused of arson, had made previously without objection before the Fire Commissioner was admissible. At that time, before enactment of the Canada Evidence Act, the common law principles by which a witness could refuse to answer on the ground that his answer would tend to incriminate him were followed. If a witness agreed to reply to certain questions when he could have refused to answer for this reason—and, according to the Coote decision, at p. 605, Coote had in fact refused to reply to several questions—it could then be said that his testimony was voluntary in the sense that his answers were
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not given under compulsion of law. In Brown the accused, charged with murder, was found guilty of manslaughter in a first trial, but a new trial was ordered by this Court. The issue was whether the accused’s testimony at the first trial was admissible in evidence at the second. This Court held that it was, reversing a majority decision of the Court of Appeal of the Northwest Territories and declaring itself in agreement “in substance” with the reasons of Johnson J.A., dissenting in the Court of Appeal. The accused Brown was not required to testify at his first trial; because he had chosen to do so, his testimony could be considered voluntary. For a similar conclusion, see also the following cases: Reg. v. Connolly and McGreevy; Rex v. Deakin (No. 2); Rex v. Drew (No. 2); Marcotte v. Rex; John McGregor v. Reg.
In support of the first argument counsel for the appellant cited, inter alia, two passages from Coote and Brown, which in his submission tend to show that the authorities only presume that previous testimony of the accused is voluntary:
Coote, at p. 607:
…the depositions on Oath of a Witness legally taken are evidence against him, should he be subsequently tried on a criminal charge, except so much of them as consist of answers to questions to which he has objected as tending to criminate him, but which he has been improperly compelled to answer. The exception depends upon the principle “nemo tenetur seipsum accusare,” but does not apply to answers given without objection, which are to be deemed voluntary. (Italics are mine.)
Brown, at pp. 102 and 103:
It is also argued that the rules applicable to confessions apply to this testimony. It is said that the evidence of the accused during cross-examination
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could not be said to be voluntarily given. Confessions obtained by cross‑examination by a person in authority outside courts have frequently been excluded as not being voluntary; no such rule has been applied to evidence taken in court. Lord Russell C.J., referring to, and adopting the Scott case, supra, said (Regina v. Erdheim, (1896) 2 Q.B., 260 at 267, 18 Cox C.C. 355):
“As to the objection that the statements were not voluntary, it was held that such an objection does not apply to a lawful examination in the course of a judicial proceeding.”
It is difficult to see logic in saying that although the accused may voluntarily give evidence in his own behalf his evidence assumes the nature of an admission or confession given under compulsion when cross-examination begins.
…
In the United States, where the power to grant new trials is pretty general, the practice of admitting such evidence is well established. In Massachusetts in 1877 Endicott J., speaking for the Supreme Judicial Court (Commonwealth v. Reynolds (1877), 122 Mass. 454, at 458) said:
“The statements made by the defendant while testifying at a former trial were competent, either as admissions or for the purpose of contradicting him. They were voluntary statements, in regard to his connection with the transaction, and it is immaterial where or when they were made”. (Italics are mine.)
In my opinion, these two passages in no way show the existence of the presumption and the necessity for the procedure which we are asked to recognize. They mean simply that Coote’s replies and Brown’s testimony were given voluntarily because the law did not require them to be given, which is an additional reason to subsequently admit them in evidence; the primary reason is that these were statements under oath and given in court, and not confessions. This primary reason is especially apparent in Brown, where Johnson J.A. refers to the requirement of cross-examination once the accused has submitted to examination,
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and in R. v. Scott, where the accused, charged with having falsified his books, was confronted by the testimony which he had previously been forced to give under the Bankruptcy Act.
Scott laid down the principle that a statement made under oath by the accused during an earlier judicial proceeding is admissible in evidence against him although it was obtained under compulsion of the law and by authority of the court. This is the position of appellant’s statement during Lamothe’s preliminary inquiry. Scott is even more persuasive in that the witness did not even have the protection now available under s. 5(2) of the Canada Evidence Act against subsequent use of his testimony; he was deprived of any protection. The courts have invariably followed this decision, and clearly it has been followed a fortiori since the law of evidence was amended to permit the witness to protect himself against subsequent use of an incriminating statement which he is compelled to make: Reg. v. Bateman (admission of a statement made by the accused at a coroner’s inquest); Reg. v. Hillam (admission of a statement made by the accused under the compulsion of the Bankruptcy Act, 1869); R. v. Clark (admission of a statement made by the accused in testifying at the trial of another accused); Rex v. Lunan (admission testimony given by the accused when he was examined under oath by a royal commission of inquiry); Rex v. Mazerall (as in Lunan); Tass v. The King (admission of a statement by the accused testifying at the preliminary inquiry of another accused).
To offset this consistent line of authority, which is not compatible with the first argument, counsel for the appellant could not refer this Court to a single decision, English or Canadian, in which
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before admitting in evidence the previous testimony of the accused a voir dire was held with respect to the voluntariness of the testimony, or the testimony was declared inadmissible. I myself found only one decision which appeared to incline toward the first argument, Wahlberg v. The Queen: in that case the Court of Appeal of Quebec excluded the statement made by the accused before the Fire Commissioner; the text of this decision is hardly more explicit than the summary published in the reports, and it disposes of the statement at the same time as a confession. The three principal findings read as follows:
CONSIDERING that evidence was permitted by the trial judge of admissions or a confession made by Appellant to a police officer while under constructive detention, and before the Fire Commissioner; and
CONSIDERING that the circumstances in which the said confession was obtained give rise to the gravest doubt as to the voluntary nature of the confession, which doubt the Crown failed to dispel; and
CONSIDERING further that no warning was at any time given to Appellant that his statements might be used in evidence; and
CONSIDERING therefore that the said evidence and confession were illegally admitted;
This isolated decision is not conclusive, because the Court of Appeal did not discuss the question. When the opportunity was again provided for that Court to discuss it, it decided the opposite: in the case at bar and Lamothe v. The Queen; in the latter case appellant, convicted of the murder of Henri-Paul Chandonnet, objected that the presiding judge had admitted the statement made by Lamothe at the Coroner’s inquest without a voir dire. The Court of Appeal held that a voir dire was not necessary and that Lamothe’s previous testimony could be used against him because Lamothe had testified without requesting the protection of the law. I would add that, in Tass, the accused had expressly pleaded that it was necessary to hold a voir dire with respect to the volun-
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tariness of the testimony which he had previously given; this plea was dismissed, as is clear not from the decision of this Court but from that of the Court of Appeal of Manitoba: Rex v. Tass, at pp. 393 and 399. This ground was also expressly relied on without success in Lunan and Mazerall. Finally, in R. v. Drouin, a judge sitting alone admitted in evidence, without holding a voir dire and despite the objections of the defence, the confessions made by the accused persons under oath before the Fire Commissioner, and then, deciding as a jury, he set these confessions aside because he did not think that they met the requirements of a voluntary statement, and he acquitted the accused. This Court, affirming the judgment of the Court of Appeal of Quebec, dismissed the Crown’s appeal: the questions of the admissibility of evidence and of its probative effect are two distinct questions, one of law and the other of fact; the trial judge ruled the accused’s judicial confessions under oath admissible, and so it remained only to weigh the probative effect of the confessions, a question of fact which did not give jurisdiction to this Court. This Court did not have to decide the point, but it in no way implied that the trial judge had erred in admitting the judicial confessions of the accused in evidence without a voir dire.
In my opinion, it is an error to contend that the law presumes that the accused’s previous statement was voluntary. Either the accused was not a compellable witness and his testimony was in that sense freely given, or he was compellable, and in that case he was not free because he had to answer or be found guilty of contempt of court. However, whether he testified freely or not he was not free as to his answers: he had to tell the truth or risk being charged with perjury. That is why it is never necessary to hold a voir dire with respect to the voluntariness of a previous statement of the accused given in court.
However, it will be said that in all these cases, except Drouin, Wahlberg and Lamothe, there was only a legitimate constraint provided by law and
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imposed by authority of the court. It is still conceivable for an accused to be exposed, prior to the first testimony, to unlawful constraint, to threats, to mistreatment which may have caused him not to tell the truth—because, if he did tell the truth, it was because of his oath—or not to seek the protection of the law, thereby risking self-incrimination. Would it not be proper, if the accused requested it, to hold a voir dire which would allow him to prove that unlawful constraint vitiated this first testimony to the point where it should not be used against the accused?
I do not believe so. In my opinion, several considerations make the accused’s previous testimony admissible as of right, even if its voluntariness is disputed in the sense that it is allegedly affected by unlawful constraint.
A statement in court carries more objective guarantees and involves more important consequences than a mere extra-judicial confession to a person in authority. It is given in open court and there is generally no reason to doubt that it in fact was made and was reported accurately. It is received by a judge who, it must be assumed, has done his duty and safeguarded the integrity of the proceedings over which he is presiding. The constraint, if any, cannot be physical and immediate. The witness may request the protection of the judge who is hearing him, not only against subsequent incriminating use of his testimony, but also against the undue pressure to which he alleges he is subject. The testimony is in solemn form and based on an oath to tell the truth on pain of perjury. The question whether use of unlawful constraint can excuse perjury under s. 17 of the Criminal Code is another matter. On the basis of this oath, reports were made, judgments were pronounced, justice was rendered; men other than the accused were cleared or condemned, released or sent to trial, found innocent or criminally responsible for a fire or a homicide, civilly or criminally acquitted or convicted, and possibly suffered loss of property, reputation, liberty or even life. Why should the testimony which could involve such consequences for third parties and for the administration of justice be hidden from the jury, even if it
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is alleged that testimony is affected by unlawful constraint?
These considerations override the risk, which is all it is, of revealing the testimony to the jury, which is still able to measure its probative effect, and disregard it if it does not believe it because of the unlawful constraint or for any other reason. It is still open to the accused to attack his earlier testimony and try to destroy it or lessen its credibility. The testimony is not necessarily false even though the accused, at the time he gave it, was subject to two constraints, the unlawful constraint and the obligation to tell the truth. If the accused now says that this testimony was false because it was forced from him, he admits his perjury, whether or not it is excusable, and the function of deciding between contradictory testimony coming from the same person is one which is clearly within the competence of the jury rather than that of the judge. It is still possible that the accused was unlawfully and expressly urged, at the time of the earlier testimony, to incriminate himself without objecting. The law provides a safeguard in this matter, but it only provides one: the witness may request the protection of the law, and he should request it at the time he is testifying both to prevent subsequent use of his testimony against himself and to protect the integrity of the testimony which he is called on to give and of the proceedings in which he gives it. However, the witness is not allowed to request the protection of the law after the event, which would in practice be the case if his testimony could subsequently be excluded following a voir dire.
Appellant’s first ground is ill-founded and must be rejected.
2. Appellant’s second argument was that the evidence of a similar act with respect to Paul Brie’s death was inadmissible, and that even if it were admissible, the presiding judge should have exercised his discretion to exclude it, because its probative value was tenuous in comparison to the damage it caused to the accused.
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It may immediately be noted that in the case at bar the oft-debated question of whether, assuming that evidence of similar acts were admissible, it could be established by evidence in chief or by rebuttal evidence, was not raised; in fact, it was established by rebuttal evidence. However, the presiding judge offered the defence an opportunity to reply to this rebuttal evidence by further evidence, but the defence did not take that opportunity.
The principles which determine the admissibility of evidence of similar acts are still those given by the Judicial Committee of the Privy Council in Makin v. Attorney General for New South Wales, 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.
Evidence of similar acts is not designed to show that, because he has committed other crimes, the accused probably committed the act with which he is charged, and in principle it should not be admitted if that is its only effect. However, although it may have this effect, it is still admissible if it is relevant to a question which is important to the outcome of the trial, which is the case, for example, when it establishes the accused’s state of mind, intent (Leblanc v. The Queen), systematic course of action, premeditation, and so on.
In the case at bar, the evidence of Paul Brie’s murder and the circumstances surrounding his burial were, in my opinion, a classic example of a case where evidence of a similar act should prima
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facie be admitted. The similarity of the circumstances described above concerning the deaths and exhumations of Bilodeau and Brie is striking and tends to show a system. The prosecution had to prove premeditation, and a systematic course of action has a clear tendency to establish premeditation. On the other hand, the prosecution was confronted by a defence which had several aspects. One of these was that appellant found himself caught up by accident in an unforeseeable misadventure, and that as a result his intent was innocent, since he in no way willed the victim’s death. Evidence of a similar act showing a systematic course of action, premeditation and guilty intent is admissible to rebut such a defence. Another aspect of the defence, intended to explain how appellant and Gagnon found the caustic soda after Bilodeau’s death and not before it, was that not only was the victim the aggressor, but that he had himself planned to murder Gagnon, going as far as providing himself with caustic soda to dispose of the body. With respect to a defence which turned to its advantage part of the same evidence which the prosecution had introduced in attempting to establish premeditation on the part of the accused, the similar act evidence presented the jury with, inter alia, the following question: if Bilodeau had in fact formed the plan to murder Gagnon and bury him in a grave covered in caustic soda, and if Bilodeau had been caught in his own trap, he nevertheless could not have chosen his own place of burial; by what remarkable coincidence was there, at the place chosen by appellant and Gagnon for that purpose, another grave containing the body of a man known to appellant, killed in the same manner as Bilodeau and also burned with a caustic substance? The similar act evidence was relevant and at the very least admissible as rebuttal evidence: even if it had the effect of reinforcing or confirming the evidence in chief, that was not its purpose, which was to rebut the evidence of premeditated aggression by the victim, in particular the evidence that the victim was carrying in the trunk of his car enough caustic soda to burn a body.
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In fact, appellant objects primarily not to the similar act evidence, but to the evidence of that act “as presented”: the similar act was directly related to the accused but not so as to show that he participated in it. The similarity created the suspicion that the accused had participated in Brie’s murder or the concealment of his body, since he knew the location of the grave, but it did not prove the participation of the accused in Brie’s murder.
However, this evidence existed. The prosecution wished to present the jury with it, but the presiding judge prohibited it, in order not to unduly burden the accused. He expressed his view in his report to the Court of Appeal as follows:
[TRANSLATION] TO refute this evidence of accident, and to establish the possibility of a systematic course of action and even of mens rea on the part of Boulet, I admitted the similar act evidence, that is, that on the same day that Boulet led the police officers to Bilodeau’s grave, he led them a few hundred feet from that spot, about an hour later, and showed them another grave in which a body was found, nude and burned by caustic soda like that of Bilodeau. This body was formally identified as that of a certain Brie, who was a casual labourer for Boulet’s accomplices.
However, I did not allow the Crown to introduce other testimony that Boulet had given at the Coroner’s inquest into Brie’s death, when he stated without even requesting the protection of the Court that, in short, he had been an accomplice in the murder of Brie, and that it was he again in this case who had interred him.
Since he was found criminally responsible for this death at the Coroner’s inquest, and was not assisted during that testimony, I felt that the statements which the Crown wished to introduce would probably cause considerable harm to the defence, disproportionate to the act which the Crown wished to prove, that is, the similar act of pointing out Brie’s grave, evidence which was already before the jury.
On the other hand, I informed the jury as clearly as possible of the meaning that such evidence could have, that is, that the directions Boulet gave in the cases of Bilodeau and Brie did not mean that it was Boulet who had killed and buried Bilodeau and Brie, but was only evidence that Boulet had knowledge of the existence of these graves, evidence from which the jury clearly could draw the conclusions they saw fit.
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With respect to the instructions to the jury on this point, the gist of them was as follows:
[TRANSLATION] It was requested, I admitted this evidence, that evidence be introduced of similar acts, that is, that Boulet’s directions had been followed to a little farther in the same area, on the same morning, because similar acts, the circumstances of time and place, in respect of similar acts, are important, the thing must not have occurred ten months later, but there it was a whole, they had led him to a place where he pointed out a grave, a thousand and some feet away, a grave which was then empty, but the evidence showed later that another body had been found in that grave, which was identified—at least if you accept the evidence that this is in fact so, it is not for me to say—and which was apparently in the same condition as Bilodeau, nude and with… burned by caustic soda, according to the testimony of Dr Authier.
This does not mean, gentlemen of the jury, that it was Boulet who killed them, nor does it even mean simply that it was Boulet who had put them there. This means that you must conclude from these similar acts that Boulet had knowledge of the existence of those things, and then you may deduce that that rebuts a defence of accident, that it can establish a systematic course of action, this is why the law permits it.
From those acts you should conclude that Boulet had knowledge. Why did he have it? Ah! It is for you to decide that. How is it that there was a second grave there, how is it that he knew that Bilodeau [Brie (?)] was buried there? That similarity may also allow you to draw conclusions as to the reason he should know what had happened there. It is for you to do it, to draw those conclusions. (Parenthesis mine.)
In my opinion, if the sole purpose of the similar act evidence was to rebut the defence of accident and to establish a systematic course of action on the part of the accused, it would have been logical to also admit in evidence the testimony given by appellant at the Coroner’s inquest into Brie’s death. This testimony was admissible in principle since appellant had testified without requesting the protection of the law and that nothing showed that appellant had been at that time charged with
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Brie’s murder (Batary v. A.G. for Sask.). This testimony not only showed that appellant knew the location of Brie’s grave, but implicated him directly in the murder. The presiding judge excluded this evidence, exercising the discretion recognized in Noor Mohamed v. Rex and Kuruma v. Reg., as they were interpreted at the time.
In my opinion, the presiding judge would have committed no error in law and would not have abused his discretion if he had permitted the prosecution to introduce the evidence given by appellant at the inquest held by the Coroner into Brie’s death. The exclusion of this evidence and the instructions to the jury on the subject caused no prejudice to the defence; to the contrary, they could only have been to its advantage, by allowing the jury to remain ignorant of an even more incriminating piece of evidence which could have been admitted. Appellant cannot object to its not being admitted.
Appellant’s first two arguments were the only ones that his counsel argued orally, although he specified that he was not abandoning the others, which were mentioned in his factum.
The third, fourth and fifth arguments related to the right to a full and complete defence, which appellant claims he was denied.
3. The third argument challenged the limits which the judge imposed on the evidence which appellant wished to introduce, to persuade the jury to doubt the probative effect of the testimony he had given at Lamothe’s preliminary inquiry. The defence wished to call a number of witnesses to testify that they also had received mistreatment at the hands of the police. The presiding judge allowed this evidence if it dealt with mistreatment inflicted in the presence of appellant or to his knowledge, or which was reported to him by the police or others. Therefore, Gagnon, Quirion and one Sicotte gave testimony on this point. However, this evidence was ruled inadmissible in the case of the mistreatment, if any, which was inflicted on
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others without appellant’s knowledge. Appellant objects to this limitation.
Of the five judges of the Court of Appeal who unanimously dismissed the appeal only Montgomery J.A. found merit in this argument, but he did not consider it decisive:
I agree with the trial judge that he was not entitled to bring before the court any person who might be prepared to state that at one time or another he had been maltreated by the police, but what Appellant was seeking to establish was something far more specific: that other persons accused of this murder or related offences were systematically beaten by the same policemen during the same period and in the same premises and that this was generally known to those who were being held by the police in connection with these offences.
I might be disposed to order a new trial on the above ground were it not for the fact that, despite the trial judge’s ruling, evidence was in fact made before the jury that three of the Appellant’s associates, namely his witnesses Gagnon, Quirion and Sicotte, were beaten by the police. The Crown countered this evidence by discrediting these witnesses, all of whom had criminal records, but did not produce as witnesses any of the policemen named or bring any other evidence in refutation. In view of this, I doubt that any further evidence that Appellant might have made regarding the alleged system would have persuaded the jury to accept the version of the facts that Appellant gave at his trial.
In the present state of jurisprudence, it appears that any such evidence of coercion could not have led to the complete rejection of the declaration previously made; it could merely give the jury reasons for viewing it with scepticism. In my opinion, the jury accepted the earlier version not because they believed that it was given freely and voluntarily but because it was plausible and to some extent corroborated by other evidence and because the later version appeared incredible.
While I am not entirely satisfied with the conduct of the trial, I am of the opinion that no substantial wrong or miscarriage of justice has occurred. I therefore agree with my colleague that we should dismiss this appeal.
I agree with the trial judge and the majority in the Court of Appeal that the use, if any, of other
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repressive methods unknown to the accused could not have influenced the testimony he gave at Lamothe’s preliminary inquiry, and that evidence of this mistreatment was not relevant. Moreover, if four witnesses’ consistent testimony on this question, including that of appellant, did not change the jury’s verdict, I do not see how additional testimony would have had that effect except by ultimately turning attention away from the primary issue by simple accumulation.
4. Appellant’s fourth argument was that the judge lacked composure in presiding over the trial. This complaint is not a serious one. The Court of Appeal’s opinion was as follows:
[TRANSLATION] With respect to the attitude of the judge presiding at the trial, it should be noted that if the judge from time to time made severe comments to counsel for the appellant it was because the latter provoked numerous long debates before the jury, which were often acrimonious and futile, and several times showed tenacity of an offensive kind, to say the least, putting the judge’s patience to many severe tests.
I am of the opinion that appellant had a fair trial, that he suffered no significant prejudice and that the verdict was justified by the evidence.
I would add that counsel for the appellant repeatedly refused to accept the rulings of the trial judge, who had to assert his authority and maintain control of the proceedings in a difficult atmosphere. In my opinion he did so with the firmness necessary in the circumstances and without losing his composure.
5. In his fifth argument, appellant objects to the aggressiveness of counsel for the Crown. Their behaviour was not above reproach, especially with respect to the epithets which they used in referring to defence witnesses. They replied in exaggerations opposite to those used by counsel for the defence, exaggerations which breached propriety. The lack of moderation on both sides in the choice of words, while reprehensible, included no statement of fact and as such did not relate to the evidence. Moreover, at the beginning of his charge to the jury, the presiding judge alluded to the climate in which the trial had taken place, to control of tempers, to
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counsel’s emotionalism, and his remarks were clearly designed to neutralize the possible effect of some intemperate language. I do not believe that in the context the jury could have attached importance to this intemperance.
6. Appellant’s sixth argument was that the presiding judge did not explain to the jury that Gagnon could have been acting in self-defence when he killed Bilodeau. According to this theory, no crime would have been committed by Gagnon or by appellant.
Gagnon was the first to use the word “self-defence” in his testimony. However, he admitted that he had not relied on this defence at his own trial for Bilodeau’s murder. Counsel for the appellant at the trial also referred several times in his pleadings to what he called the “theory” of self-defence. At best, however, this would be a secondary defence, which moreover could not be urged without compromising the primary position which tended to dissociate appellant from Gagnon.
When the presiding judge, after his charge to the jury, invited counsel to bring to his attention omissions or errors which he might have made, counsel for the appellant submitted another complaint to him but did not in any way refer to self-defence, nor was there any question of self-defence in the notice of appeal to the Court of Appeal, which did not mention it in its decision.
In any case, the trial judge would have erred, in my opinion, if he had directed the jury to consider this particular defence. Even if the testimony of appellant and Gagnon was accepted as true, it did not open the way to that defence: Bilodeau was alone against two people; the barrel of the rifle he had pointed at Gagnon was pushed aside by the latter; the rifle went off, and Gagnon then fired more than once at Bilodeau. This is not a situation in which, in law, Gagnon was acting in self-defence.
7. Appellant’s seventh and last argument was that the trial judge gave his opinion on the facts in
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his charge to the jury in such a way as to influence the jury’s verdict. This complaint is also without basis. Even though one might suspect or guess his opinion on certain specific facts in reading the analysis of the evidence made by the trial judge, there is nothing unlawful or irregular in that: the trial judge clearly outlined his role and that of the jury, and repeated his instructions to the jury that they should not consider his opinion on questions of fact. Following are examples of these instructions:
[TRANSLATION) If while I am speaking to you you could have had or could now have the impression or the feeling that by my attitude, my words, my actions… I may have suggested to you that I have an opinion as to the guilt or innocence of the accused, you may not consider it… If by chance you may have had the idea that I have an opinion, I implore you in conscience not to consider it.
It is the duty of the judge to draw the jury’s attention to certain parts of the evidence, or to certain comments on the testimony… That does not mean that what the judge says must be accepted by you… I want this to be your decision and I do not want it to be influenced by me.
I would also reject this last argument and I would dismiss the appeal.
Appeal dismissed.
Solicitor for the appellant: Bernard Lamarche, Montreal.
Solicitor for the respondent: François Tremblay, Quebec.
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