Held: The appeal should
be allowed and a new trial ordered on the charge of manslaughter.
As the Crown did not appeal the acquittal for
murder, the Court of Appeal committed an error of law in ordering a new trial
on the initial charge. It exceeded its jurisdiction by allowing a result which
only the Crown was entitled to seek under s. 605 of the Criminal Code .
This Court has jurisdiction to hear this appeal.
Section 618(2)(b) of the Code confers on an accused whose
acquittal has been set aside by the Court of Appeal an automatic right of
appeal to the Supreme Court. However, he cannot, under that paragraph, make in
this Court any argument made in the Court of Appeal and ask for an acquittal
here. In the circumstances he can only challenge the setting aside of his
acquittal for murder and ask that the new trial be held on a charge of
manslaughter.
Cases Cited
Rickard v. The Queen,
[1970] S.C.R. 1022, applied; R. v. Wilmot, [1941] S.C.R. 53, referred
to.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 603(1), 605(1)(a), (2),
613(1)(a), (2), (4) [am. 1974‑75‑76 (Can.), c. 93, s. 75],
618 [am. 1974‑75‑76 (Can.), c. 105, s. 18], 623(1).
APPEAL from a judgment of the Quebec Court of Appeal1,
allowing appellant's appeal from a conviction for manslaughter and ordering a
new trial on the original charge of second‑degree murder. Appeal allowed
and new trial ordered on a charge of manslaughter.
1 C.A. Que., No. 200‑10‑000162‑821,
November 7, 1983.
François Fortier
and Christian Bélanger, for the appellant.
René de la Sablonnière
and Maurice Gabias, for the respondent.
English version of the judgment of the Court
delivered by
1. Lamer
J.‑‑
Facts
2. On December 23, 1979, Karine Massicotte,
appellant's young daughter, was found dead in her bed. No autopsy was ordered
and the death was classified as a natural one.
3. In April, 1982, a friend of Guillemette
went to the police and told them that about ten months earlier Guillemette had
told him in confidence that he had killed his child.
4. Officers of the Quebec Provincial Police
interviewed appellant and he agreed to take a lie detector test. On being told
by the police officers that he had "failed" the test, Guillemette
made two statements to the police, one in writing and the other verbal, and he
was, in due course, charged with second‑degree murder.
Judgments
5. At the conclusion of a trial by judge
and jury, at which only the written statement was admitted in evidence,
appellant was convicted of the included offence of manslaughter. He appealed
this conviction. The Crown chose not to appeal the acquittal for murder.
6. On November 7, 1983, the Quebec Court of
Appeal allowed the accused's appeal from this conviction on the ground that the
trial judge had erred in law in his charge to the jury in mentioning the
possible verdict of manslaughter based on provocation. The Court ordered a new
trial, not on a charge of manslaughter, but on the initial charge of second‑degree
murder. Guillemette is now appealing from this decision.
Issue
7. The principal question raised by the
appeal at bar is the following: as the Crown did not appeal, did the Court of
Appeal, when deciding an appeal by the accused against his conviction, err in
ordering a new trial on the original charge of second‑degree murder, when
the jury had returned a verdict of guilty of manslaughter?
Law
8. The accused's appeal must succeed as the
Court of Appeal had no jurisdiction to order that a new trial be held on the
charge of murder.
9. The provisions of the Criminal Code
applicable in the case at bar are the following:
603. (1) A person who is convicted by a trial court in proceedings by
indictment may appeal to the court of appeal
(a) against his
conviction
...
605. (1) The Attorney General or counsel instructed by him for the purpose
may appeal to the court of appeal
(a) against a
judgment or verdict of acquittal of a trial court in proceedings by indictment
on any ground of appeal that involves a question of law alone,
...
(2) For
the purposes of this section a judgment or verdict of acquittal includes an
acquittal in respect of an offence specifically charged where the accused has
on the trial thereof been convicted of an included or other offence.
...
613. (1) On the hearing of an appeal against a conviction or against a
verdict that the appellant is unfit, on account of insanity, to stand his
trial, or against a special verdict of not guilty on account of insanity, the
court of appeal
(a) may allow the
appeal where it is of the opinion that
(i) the verdict should be
set aside on the ground that it is unreasonable or cannot be supported by the
evidence,
(ii) the judgment of the
trial court should be set aside on the ground of a wrong decision on a question
of law, or
(iii) on any ground there
was a miscarriage of justice;
...
(2)
Where a court of appeal allows an appeal under paragraph (1)(a), it
shall quash the conviction and
(a) direct a
judgment or verdict of acquittal to be entered, or
(b) order a new
trial.
...
(4)
Where an appeal is from an acquittal the court of appeal may
(a) dismiss the
appeal; or
(b) allow the
appeal, set aside the verdict and
(i) order a new trial, or
(ii) except where the
verdict is that of a court composed of a judge and jury, enter a verdict of
guilty with respect to the offence of which, in its opinion, the accused should
have been found guilty but for the error in law, and pass a sentence that is
warranted in law.
...
618. (1) A person who is convicted of an indictable offence and whose
conviction is affirmed by the court of appeal may appeal to the Supreme Court
of Canada
...
(b) on any
question of law, if leave to appeal is granted by the Supreme Court of Canada
within twenty‑one days after the judgment appealed from is pronounced
or within such extended time as the Supreme Court of Canada or a judge thereof
may, for special reasons, allow.
(2) A
person
(a) who is
acquitted of an indictable offence other than by reason of the special verdict
of not guilty on account of insanity and whose acquittal is set aside by the
court of appeal,
...
may appeal to the Supreme
Court of Canada on a question of law.
10. In the case at bar the accused was
acquitted of murder and convicted of manslaughter. In the view of the Court of
Appeal, the trial judge erred in directing the jury on the possibility of
bringing in a verdict of manslaughter. Both the Crown and the accused agree
that, in view of the facts in evidence, the judge was not entitled to direct
the jury on the possibility of returning a verdict of manslaughter based on the
theory of provocation. However, the accused argued that the verdict on the
included offence could have been based on other grounds. The Crown, for its
part, considered that only two verdicts were legally possible: those of guilty
of murder or acquittal. Both parties were concerned about the effect that the
trial judge's error might have had on the outcome. The accused argued that, as
it could not convict him of murder, the jury would have been prepared to acquit
him. The Crown, quite logically, argued the contrary, and said that the jury
which could not acquit the accused in light of the evidence, would have had to
bring in a verdict of murder. Both parties could have appealed, the Crown by an
appeal against the acquittal for murder, the accused by an appeal against the
conviction for manslaughter. Only the accused appealed. This is important. The
acquittal for murder was not challenged by the Crown, and obviously not by the
accused.
11. At the appeal from his conviction for
manslaughter, the accused could have asked the Court of Appeal to substitute a
verdict of acquittal or to order a new trial to be held on the charge of
manslaughter (s. 613(2) of the Criminal Code ).
12. The Crown, for its part, could have
appealed this verdict under s. 605 and asked the Court to order a new trial on
the initial charge of second‑degree murder (s. 613(4)(b)(i) of the
Code). As s. 605(2) of the Code treats a conviction for an
included offence as an acquittal for the offence initially charged, for
purposes of determining whether the prosecution has a right of appeal, the
right of the prosecution to ask for a new trial relates to the principal
charge. It took no such action. Relying on the judgment of this Court in R.
v. Wilmot, [1941] S.C.R. 53, the Crown argued that Guillemette had not been
acquitted of murder. In my opinion, it is sufficient to note that that decision
was prior to the addition of the aforementioned s. 605(2) to the Criminal
Code .
13. In ordering a new trial on the original
charge of second‑degree murder, the Court of Appeal in the same breath set
aside the acquittal implicitly made by the jury on that charge. Where there has
been no appeal by the Crown, to allow this result, which only the Crown was
entitled to seek, constitutes an error of law.
14. The decision of this Court in Rickard
v. The Queen, [1970] S.C.R. 1022, is an application of this principle.
Although that judgment was rendered in connection with a summary conviction,
the fundamental principles on which it was based apply equally to indictable
offences.
15. Rickard, who was charged with criminal
negligence in the operation of a motor vehicle, was convicted following a trial
by a summary convictions court of the lesser and included offence of dangerous
driving. Following a trial de novo held pursuant to s. 720 of the Code
(now s. 748) at the request of the accused, he was convicted of criminal
negligence. Rickard appealed from this conviction on the ground that the judge
at the trial de novo had jurisdiction limited to hearing the appeal
regarding the offence for which the appellant was previously convicted.
Speaking for a majority of this Court, Ritchie J. approved the argument at
p. 1028:
It has been held more than
once in this Court, (Dennis v. The Queen, [1958] S.C.R. 473 at 482; The
Queen v. Dennis, [1960] S.C.R. 286 at 289), that the existence of a valid
Notice of Appeal filed and served in accordance with s. 722 is a condition
precedent to the exercise of the jurisdiction vested in the Court of Appeal
under s. 727(1) and it follows, in my opinion, that a County Court Judge acting
under the latter section is only authorized and required "to hear and
determine the appeal by holding a trial de novo" in respect of the
issues raised in a Notice of Appeal which has been so filed and served. In the
present case the learned County Court Judge purported to register a conviction
against the appellant under s. 221(1) in the absence of any appeal whatever
from the Magistrate's finding that the evidence did not prove that offence. I
do not find it necessary to decide whether an appeal in fact lies by the
informant or the Attorney General from such a finding because I take the view
that the controlling factor in this case is that no such appeal was taken.
...
In my
opinion, the only issue which the County Court Judge was authorized and
required to hear and determine on the holding of a trial de novo in the
present case was the issue of the guilt or innocence of the accused on the
charge of which he was convicted and from which he had appealed.
(Emphasis added.)
16. At page 1029, Ritchie J. dismissed as
follows the argument made by the Crown that s. 727(1), as it read at the time,
required the holding of a new trial on the initial information:
... in my view any
construction of s. 727(1) which would result in a retrial of the charge alleged
in the original information when that charge has been dismissed by the
Magistrate and there is no appeal from his dismissal, would be inconsistent
with the appeal provisions of Part XXIV.
17. In the case at bar, therefore, as there
was no appeal by the Crown, the Court of Appeal of Quebec erred in ordering a
new trial on the initial charge of murder.
18. The Crown challenged the jurisdiction of
this Court to hear this appeal. Appellant came to this Court by leave granted
pursuant to s. 618(1)(b) of the Code, which states that a person
whose conviction at first instance is affirmed by the Court of Appeal may apply
for leave to appeal to this Court. The Crown argued, correctly in my view, that
the accused's conviction for manslaughter was not affirmed by the Court of
Appeal, since the latter ordered a new trial.
19. I am nevertheless of the opinion that the
accused did have an appeal as of right to this Court under s. 618(2)(a)
of the Code, which confers on anyone whose acquittal at first instance
has been set aside by the Court of Appeal an automatic right of appeal to the
Supreme Court. Accordingly, the setting aside by the Court of Appeal of
Guillemette's acquittal on the charge of murder enabled him to appeal to this
Court for a restoration of his acquittal for murder and an order that the new
trial be held on a charge of manslaughter rather than murder. Under s. 618(2)(a),
can appellant also make, in this Court, any other argument made in the Court of
Appeal and ask for an acquittal here?
20. In this regard, appellant alleged that the
Court of Appeal should have reversed the decision by the trial judge to admit
in evidence the written statement made by the accused, in view of the
circumstances in which it was made. The accused maintained that the residual
evidence is too weak to support a guilty verdict (s. 613(1)(a)(i) of the
Code).
21. The accused cannot challenge the verdict
of manslaughter in this Court. The Court of Appeal did not affirm the
conviction and, were it not for the error by the Court of Appeal in setting
aside his acquittal for murder by ordering a new trial on that charge, the
accused would not have been able to appeal to this Court under s. 618. On an
appeal as of right under s. 618(2)(a) of the Code, the accused
can only challenge the setting aside of his acquittal for murder and ask that
the new trial be held on a charge of manslaughter. This Court therefore cannot
rule on the other arguments put forward by the accused in support of an
acquittal.
22. I think it advisable to add a further
clarification of the limits imposed on this Court by the nature of the appeal
at bar.
23. Though it made no appeal to the Court of
Appeal, the Crown could have appealed in this Court, against the order for a
new trial made by the Quebec Court of Appeal. The Crown could then have asked
this Court to set aside the order and restore the conviction for manslaughter.
However, again it chose not to appeal, this time, before this Court. In
addition to the limitations imposed on us by the nature of the accused's
appeal, the jurisdiction of this Court is also limited by the Crown's decision
not to appeal to the Court of Appeal against the acquittal for murder by the
jury, and further by its decision not to appeal against the order for a new
trial made by the Court of Appeal.
24. Section 623(1) of the Code
provides:
623. (1) The Supreme Court of Canada may, on an appeal under this Part,
make any order that the court of appeal might have made and may make any rule
or order that is necessary to give effect to its judgment.
25. Where there is no appeal by the Crown
asking us to do so, this Court cannot, in place of the Court of Appeal, make
the order which we might feel it should have made, assuming that was our
conclusion, namely dismissing the appeal and substituting a conviction for
manslaughter.
26. For all these reasons it follows, in my
view, that the only question we may consider is whether the new trial ordered
by the Court of Appeal should be on a charge of murder or of manslaughter.
27. For the reasons already given, I consider
that the new trial should be on a charge of manslaughter.
28. I would therefore allow this appeal and
order that the new trial be held on the charge of manslaughter.
Appeal allowed and new trial ordered.
Solicitors for the appellant: François Fortier and
Paul Miquelon, Québec.
Solicitors for the respondent: René de la
Sablonnière, Québec; Maurice Gabias, Trois‑Rivières.
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