Supreme Court of Canada
Warkentin v. The Queen, [1977] 2 S.C.R. 355
Date: 1976-07-12
Melvin Granville Warkentin, Ralph Harry Hanson and Clifford John Brown Appellants;
and
Her Majesty The Queen Respondent.
1976: February 6; 1976: July 12.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law—Rape—Corroboration—Whether evidence capable of corroborating story of complainant—Criminal Code, R.S.C. 1970, c. C-34, s. 142 (now repealed).
Criminal law—Appeal—Failure to specify grounds for dissent in formal judgment of Court of Appeal—Omission not fatal to jurisdiction of Supreme Court of Canada to hear appeal.
The complainant, an 18-year-old Indian girl, alleged that at about 9 p.m., upon leaving a bar at Williams Lake, she was grabbed by four men, three of whom were the present appellants, forced into a red Mustang car, and driven to an isolated spot, where one of the men pulled her out of the car and threw her on the ground. Two of the accused then held her arms and one, after having undressed her partially, had intercourse with her without her consent while the fourth stood close by laughing. Thereafter, she said, she escaped through the bush and, meeting two friends, reported what had befallen her. She was “very upset” and “crying hard”. On her return a few minutes later to Williams Lake, she met another friend and was finally convinced to go to the police. The three accused were arrested the following day around 1:30 a.m.
On a charge of rape, a verdict of guilty was entered against all three appellants. An appeal was dismissed by a majority of the British Columbia Court of Appeal and a further appeal was then brought to this Court.
The question to be decided was whether the trial judge erred in characterizing the following pieces of evidence as being capable of corroborating the story of the complainant: (1) A written admission of facts that the three accused and a fourth man were together at a dance hall at the time of their arrest; that the accused and the fourth man admitted that they had been together earlier in the evening; and that a red Mustang
[Page 356]
vehicle owned by one of the accused was parked at the dance. (2) The distraught condition of the complainant after she had made her escape. (3) The fact that seminal fluid was found in the complainant’s vagina and underclothing. (4) The fact that human scalp hair was found on her jeans and that it could have originated from the same source as 70 human scalp hairs on the clothing of one of the appellants. (5) The finding of pine needles in the complainant’s underclothing.
Held (Laskin C.J. and Spence, Pigeon and Dickson JJ. dissenting): The appeal should be dismissed.
Per Martland, Judson, Ritchie, Beetz and de Grandpré JJ.: The corroborative evidence of which s. 142 of the Criminal Code speaks need not identify each accused separately when the evidence to be corroborated is that a gang rape has been committed. It is sufficient to establish that intercourse without consent has taken place and that the group was a party to it. Nor could it be accepted that the corroborative evidence of s. 142 must be pigeonholed in three different slots, namely intercourse, non-consent and identity. It is the entire picture that must be looked at, not a portion thereof. When that supporting evidence, as in the present case, is circumstantial, it is the whole that must be examined and not each piece individually. The corroborating evidence should not be broken up into fragments.
The five pieces of evidence indicated by the trial judge as capable of constituting corroborative evidence should only be looked at together. Taken one by one, they did not tend to show that intercourse took place without the consent of the complainant with one or the other of the accused. Taken as a whole, however, they were capable of establishing these three elements of the crime.
Per Laskin C.J. and Spence, Pigeon and Dickson JJ. dissenting: In order to be corroborative within the meaning of s. 142 of the Code, the evidence must be on a material point in the case and, above all, it must implicate the accused by connecting or tending to connect him with the alleged offence. This evidence must, of course, also be independent of the acts or words of the complainant.
There were in this case two issues: (i) was the complainant subjected to intercourse without her consent, i.e. was she raped?; (ii) were the accused identified with that intercourse, i.e. did the accused commit the act alleged? Corroboration was required on each issue and, if lacking, it was the duty of the judge to instruct the jury to that effect.
The five pieces of evidence to which the trial judge referred tended to support the credibility of the complai-
[Page 357]
nant and they were no doubt admissible in evidence, but they could not be regarded as capable of being corroborative of the complainant’s evidence, within the meaning of s. 142 of the Code. There was simply no corroborative evidence which linked the group (comprising the three accused and a fourth man) or any individual member of the group with the offence. The mere presence of the four men in Williams Lake on the night of the alleged crime could hardly serve as a nexus entwining the accused with the act of forced intercourse, nor could ownership of a red Mustang by one of the men. The evidence of identity must be such as to place the accused at the scene of the crime, not at some other place in the same town.
The emotionally distraught condition of the girl after the offence did not in any way implicate the accused and the presence of seminal fluid did not show that the intercourse was without consent nor did it implicate any of the accused. The human scalp hair was of such little probative value as to be incapable of corroborative effect and the pine needles did not strenghten or confirm the evidence of the complainant on any issue.
Items of evidence said to implicate an accused may be looked at collectively and within the total picture of all the evidence but if, lacking independence, none of the items is capable of corroborative effect, then no accumulation will serve to create that effect.
Per Laskin C.J. and Spence, Pigeon, Dickson and Beetz JJ.: Despite the incomplete nature of the formal judgment of the Court of Appeal, this Court had jurisdiction to hear the appeal. Section 618(1)(a) of the Code accords an appeal to any person convicted of an indictable offence “on any question of law on which a judge of the court of appeal dissents”. There is no reference in s. 618(1)(a) to s. 606, which provides that the formal judgment “shall specify any grounds in law upon which the dissent, in whole or in part, is based”.
Per Martland, Judson, Ritchie and de Grandpré JJ., dissenting: The failure to specify the grounds for dissent in the formal judgment of the Court of Appeal was an omission which, under s. 606 of the Code, was fatal to the jurisdiction of this Court.
[D.P.P. v. Hester, [1972] 3 All E.R. 1056; D.P.P. v. Kilbourne, [1973] 1 All E.R. 440; James v. The Queen (1970), 55 Cr. App. R. 299; Kolnberger v. The Queen, [1969] S.C.R. 213; Hubin v. The King, [1927] S.C.R. 442; R. v. Reardon, [1945] O.R. 85; R. v. O’Hara (1946), 88 C.C.C. 74; R. v. Ethier (1959), 124 C.C.C. 332; R. v. Steele (1923), 33 B.C.R. 197, aff’d 42 C.C.C. 375; R. v. Redpath (1962), 46 Cr. App. R. 319; R. v.
[Page 358]
Boucher, [1963] 2 C.C.C. 241; R. v. White, Dubeau and McCullough (1974), 16 C.C.C. (2d) 162; R. v. Basken and Kohl (1974), 28 C.R.N.S. 359; R. v. Flannery, [1969] V.R. 586; R. v, Boyd (1974), 25 C.R.N.S. 381; R. v. Corners and Jones, [1972] 5 W.W.R. 1; Mac-Donald v. The King, [1947] S.C.R. 90; Canning v. The King, [1937] S.C.R. 421; R. v. Parish, [1968] S.C.R. 466; Thomas v. The Queen, [1952] 2 S.C.R. 344; R. v. Kanester (1966), 48 C.R. 352, rev’d 49 C.R. 402; R. v. Boyce (1975), 7 O.R. (2d) 561, referred to]
APPEAL from a majority judgment of the Court of Appeal for British Columbia, dismissing an appeal by the appellants from their conviction before Craig J. and a jury on a charge of rape. Appeal dismissed, Laskin C.J. and Spence, Pigeon and Dickson JJ. dissenting.
G.L. Murray, Q.C., and P.D. Messner, for the appelants.
W.G. Burke-Robertson, Q.C., for the respondent.
The judgment of Laskin C.J. and Spence, Pigeon and Dickson JJ. was delivered by
DICKSON J. (dissenting)—This is an appeal from a majority judgment of the Court of Appeal for British Columbia (Maclean and McFarlane JJ.A., Robertson J.A. dissenting) dismissing an appeal by the appellants from their conviction before Craig J. and a jury on a charge of rape. The point in issue is whether the trial judge erred in characterizing certain evidence as being capable of corroborating the story of the complainant. There are few problems more troublesome and difficult for a trial judge than that of deciding what evidence is in law susceptible of corroborative effect and what evidence is not. On the authorities, however, including two decisions of this Court, I think one must conclude that in this case the trial judge erred.
I do not propose to deal with the evidence at length. It reveals that the complainant, Helen Sandy, an 18-year-old native woman, at about
[Page 359]
noon on May 5, 1973, travelled from the Sugar Cane Reserve, where she lived, to the Town of Williams Lake, a distance of about seven miles. She wandered around the town during the afternoon. According to her evidence, at about 9.00 p.m., upon leaving a bar, she was seized by the three accused, forced into a red Mustang car, and driven to an isolated spot, where an alleged act of intercourse took place in the presence of the three accused and a fourth man. Thereafter, she said, she escaped through the bush and, meeting two friends, reported what had befallen her. According to one of these friends, Diane Buckle the complainant was “very upset” and “crying hard”.
As part of the case for the Crown, an admission of facts, signed by counsel for the appellants was entered as an exhibit:
ADMISSION
At approximately 1.30 a.m. on May 6, 1973, the three accused and a fourth man were together at a dance at a place known as Squaw Hall at the Exhibition Grounds at Williams Lake, in the County of Cariboo, Province of British Columbia.
The accused and the fourth man were questioned and admitted that they had been together at an unstated time earlier in the evening.
The red Mustang vehicle owned by the accused Hanson was parked at the dance but the accused were not occupying it when they were taken in for questioning.
At the conclusion of the trial, the judge charged the jury that the following pieces of evidence were capable of being corroborative of the evidence of the complainant, namely:
1. The written admission of facts.
2. The distraught condition of the complainant when seen by Diane Buckle.
3. The fact that seminal fluid was found in the complainant’s vagina and underclothing.
4. The fact that human scalp hair was found on her jeans and it could have originated from the same source as the seventy human scalp hairs on the appellant Warkentin’s clothing.
5. The finding of pine needles in the complainant’s underclothing.
Section 142 of the Criminal Code (now repealed) required the trial judge, in a case such as this, to
[Page 360]
instruct the jury that it is not safe to find the accused guilty on the basis of the complainant’s evidence alone in the absence of corroboration, although they are entitled to do so if satisfied beyond a reasonable doubt that her evidence is true. The corroboration to which the section refers is not corroboration in the loose sense of evidence which tends merely to confirm or support the story of the complainant. Section 142 speaks of corroboration (i) “in a material particular” by (ii) evidence that “implicates the accused”.
One finds in two recent decisions of the House of Lords, Director of Public Prosecutions v. Hester, and Director of Public Prosecutions v. Kilbourne, expressions of opinion to the effect that the word “corroboration” should be treated not as a term of art but as an ordinary word and given its ordinary dictionary meaning. In that sense, corroborative evidence is evidence which serves to give weight to, confirm, or render more probable, other relevant evidence in the case. It is clear, however, that in order to be corroborative within the meaning of s. 142 of the Code the evidence must be on a material point in the case and, above all, it must implicate the accused by connecting or tending to connect him with the alleged offence. This evidence must, of course, also be independent of the acts or words of the complainant, for a witness cannot corroborate herself. The nature of the corroboration will vary according to the offence charged and the particular circumstances of the case and will frequently be circumstantial, as eye-witnesses to the commission of sexual offences are not legion.
In many rape cases, the fact that intercourse has taken place is admitted by the accused and the only issue is whether the woman has consented. In those cases, the evidence said to be corroborative must be that which tends to establish the absence of consent. In contrast, in the present case there were two issues: (i) was the complainant subjected to intercourse without her consent, i.e. was she raped?; (ii) are the accused identified with that
[Page 361]
intercourse, i.e. did the accused commit the act alleged? In my opinion, corroboration was required on each issue and, if lacking, it was the duty of the judge to instruct the jury to that effect.
As Viscount Dilhorne stated in the Privy Council in James v. The Queen, at p. 302:
In sexual cases, in view of the possibility of error in identification by the complainant, corroborative evidence confirming in a material particular her evidence that the accused was the guilty man is just as important as such evidence conforming that intercourse took place without her consent.
I do not think there is to be found in the record in the case at bar any evidence capable of corroborating the allegations of the complainant that she had been raped by the accused. Apart from her story, there was no evidence that the accused participated in the commission of the alleged offence.
I should like now to examine each of the five pieces of evidence which the trial judge considered to be capable of corroborative effect. The first of these, the admission of facts which placed the three accused and a fourth man at a dance hall at some time after the alleged offence and at an unstated time earlier in the evening, is meaningless and irrelevant standing independent of the complainant’s evidence. Ownership of a red Mustang vehicle by one of the accused suffers from the same flaw. This evidence only assumes significance by reason of what has been said by the complainant.
In Kolnberger v. The Queen, there was no question but that a rape had taken place. The appeal was concerned solely with the question of the identity of the appellant as the assailant. The complainant described the automobile as one she believed to be an older model Chrysler product, cream or off-white in colour and very dirty. The complainant was shown an automobile which she said she identified as the one in which she had been attacked. This automobile, which belonged to the appellant, was a 1957 Chevrolet, blue body
[Page 362]
with white top, very dirty both inside and outside. Hall J., with whom Cartwright C.J. and Spence J. concurred, held that although not a jury case, the trial judge had to instruct himself in accordance with s. 134 (now s. 142) of the Code not only as to the fact of the rape but also on the matter of identity. Hall J. said, p. 219:
It is manifest either that he concluded that corroboration was not necessary on the question of identity or, alternatively, that he found he could satisfy himself beyond a reasonable doubt that the complainant’s story (her identification of the appellant) was true from the fact that the appellant offered no explanation or contradiction. In either case, he was in error.
Martland J., with whom Cartwright C.J. and Fauteux J., concurred, said, p. 219:
The only evidence in this case which implicated the appellant was that of the complainant. Her evidence, in that respect, was not corroborated by an evidence which implicated the appellant.
This latter passage is of particular interest having regard to the automobile identification evidence which is common to that case and to the present one. The Court in Kolnberger was unanimous in allowing the appeal and ordering a new trial.
In the earlier case of Hubin v. The King, the offence charged was that of carnally knowing a girl under the age of 14 years. After the offence was committed and as the accused was leaving her, the girl made a note of the plate number of his car. She subsequently picked out the car, recognizing it, according to her evidence, by its plate number and by a certain cushion on the seat. The accused admitted he owned a car with a plate number the same as that alleged by the complainant, and that he was driving it on the day in question, but at the city of Winnipeg, which is nearly 20 miles from Lockport, the site of the alleged offence. The question before the Court was whether or not there was evidence upon which corroboration of the complainant’s evidence, as required by s. 1002 of the Criminal Code, as amended 1925 (Can.), c.
[Page 363]
38, s. 26, could properly be found. Section 1002 read:
No person accused of an offence… shall be convicted upon the evidence of one witness unless such witness is corroborated in some material particular by evidence implicating the accused.
Anglin C.J., delivering the judgment of the Court said, p. 444:
Since the decision of the Court of Criminal Appeal in R. v. Baskerville, the requirements of the provision now found in s. 1002 admit of no doubt. The corroboration must be by evidence independent of the complainant; and it “must tend to show that the accused committed the crime charged”.
The Hubin case stands for the proposition that evidence relating solely to the identity of the accused but not implicating him in the crime is not sufficient to qualify as capable of corroborative effect. The following well-known passage from the judgment of Chief Justice Anglin commences at p. 444 of the report:
Of most of the matters relied upon by the Crown as implicating the accused, however, it cannot, in our opinion, be safely predicated that they are in evidence independently of the testimony and conduct of the complainant, or that, without her testimony, they “tend to show that the accused committed the crime charged”. This defect affects everything in connection with the alleged implication of the accused because of the admission by him of the ownership and driving, on the morning in question, of the car identified by the complainant as that in which she was taken to the scene of the crime. While the verification of the details given by her no doubt adds to the credibility of the story she tells, everything in that connection, including the admitted facts of ownership and driving (not at or near the scene of the offence, but in and about Winnipeg) depends, for its evidentiary value, upon her statement that a certain license number was that carried by the car in which she was conveyed to the scene of the crime and her subsequent identification of a cushion found in the car bearing that number. This is not, in a proper sense, independent evidence tending to connect the accused with the crime. In themselves these facts and circumstances merely “relate to the identity of the accused without connecting him with the crime”. R. v. Baskerville, [1916] 2 K.B. 658. They implicate the accused solely by reason of the complainant’s statement as to the number of the car and her identification of the cushion
[Page 364]
in it. Without this additional factor they are quite irrelevant. Nor can any multiplication of such facts amount to corroboration. Thomas v. Jones, [1921] 1 K.B. 22. They are all admissible only by reason of the girl’s own story connecting them with the crime. They lack, therefore, the essential quality of independence.
In R. v. Reardon, the trial judge characterized to the jury as evidence which might be considered corroborative, two items identified by the complainant, namely, a car blanket and a $2 bill. The Appellate Court held another view and a new trial was ordered. Reference might also be made to R. v. O’Hara in which the trial judge found possible corroboration in evidence as to the condition of the girl’s clothes and her appearance after the assault, in her identification of the car, and in the finding of certain prophylactic articles and two soiled handkerchiefs at the place where the complainant said the offence had taken place. The British Columbia Court of Appeal held that evidence of this nature was corroborative in the sense that it tended to affirm the credibility of the complainant, but it was not independent evidence and therefore not corroborative within the statutory requirement.
Cases in which the sole issue for determination is consent or no consent of the complainant to the act of sexual intercourse are of little help in deciding a case such as the one at bar where identity is the sole issue. The closest case to that at present before us would seem to be R. v. Ethier, a decision of the Ontario Court of Appeal. Mr. Justice Morden delivered the judgment of the Court. In that case, following the alleged offence, the accused drove the complainant home. Upon her arrival there, she told her mother and father what had occurred, giving them the name of the accused and licence number, year and make of the accused’s car. At the trial, she swore that there were foot marks on the ceiling of the car made by her while she was being assaulted and that the interior handle of the left door was missing. The
[Page 365]
accused, his automobile and clothing all answered the complainant’s description of them. The following passage will be found at p. 334 of the judgment:
However, in the case at bar there were two areas in which corroboration must be sought: (a) the commission of the crime and, (b) the identity of the accused, and evidence which is capable of being confirmatory of the complainant’s evidence in one area may not so qualify in the other. For this reason, where the two issues are present, a trial Judge should be careful to consider whether or not there is evidence which, taken together, is capable of being confirmatory on both issues. If it is capable of being confirmatory in only one area, this should be made plain to the jury.
In Ethier, as here, the trial judge did not distinguish the two issues. He told the jury they might find corroboration in respect of the following (p. 335):
…(1) the human blood, type A, on the accused’s shorts; (2) hair found in the car was similar to the girl’s; (3) the handle on the car was broken; (4) the person who assaulted her was wearing brown pants and a checkered shirt; (5) the licence number of the car; (6) the bruise on her left cheek; (7) the marks on the ceiling of his car; (8) her emotional condition upon arriving at home.
On the issue of the identity of the accused, Mr. Justice Morden said, p. 336:
I have said, many of the matters mentioned by the learned trial Judge depended solely upon her evidence to connect the accused with the alleged crime. I refer to her description of the accused and of his car. The condition of the girl and of her clothing were independently proved, but this evidence was equally consistent with the truth as with the falsity of her story on the issue of identity: Thomas v. The Queen, 103 Can. C.C. at pp. 200-1, (1952), 4 D.L.R. at p. 312, 2 S.C.R. at p. 354. The scientific evidence with respect to the hair found in the car and type of the blood found upon the clothing of the girl and of the accused failed by the same test.
Although one might well consider the evidence of footmarks on the ceiling of the car as affording corroboration, the Court was of opinion that none
[Page 366]
of the evidence mentioned was capable of corroborative effect and a new trial was ordered.
It would be wrong to conclude from the foregoing phalanx of authorities that corroborative evidence as to identity of an alleged assailant is never available. In an early case, R. v. Steele, affirmed by this Court, corroboration of the girl’s story was found in the evidence of a witness who saw the girl and the accused dance together at a dancehall, leave the hall separately, then meet outside and walk toward a public park. This witness did not see them enter the park where the girl testified the assault took place. In that case, the evidence described as corroborative came from the testimony of someone other than the complainant. So also in The Queen v. Redpath. The appellant was convicted of indecent assault on a girl aged seven. The evidence of the girl was that she was playing on a moor one afternoon when a man, whom she identified as the appellant, pulled her to the ground and indecently assaulted her. A Mr. Hall, who with his wife was near the edge of the moor, saw a car (later identified as belonging to the appellant’s wife) parked at the edge of the moor and a man, whom he identified as the appellant, walk towards the girl and later return and drive off in the car. Immediately afterwards Mr. Hall saw the girl come from the moor in a very distressed condition. The appellant’s defence was that he had never been near the moor. The trial judge directed the minds of the jury to two issues, saying that they should look for corroboration of the indecent assault and, if they were satisfied that the little girl was indecently assaulted by someone, they should look for corroboration implicating this appellant. Lord Chief Justice Parker had this to say respecting corroborative evidence implicating the appellant, p. 321:
[Page 367]
So far as corroborative evidence implicating this appellant is concerned, it is abundant, because Mr. Hall, quite apart from claiming to identify the appellant, took the number of the car, which belonged to the appellant’s wife, and that quite clearly—and it is not disputed—was corroboration of the girl’s identification of this appellant.
See also R. v. Boucher, at p. 270, as exemplifying a case in which the story of the girl’s mother and the stories of two independent witnesses, taken together, satisfied the requirements of independent corroborative evidence that a crime had been committed and that the accused had committed it.
I return to the present case. The second piece of evidence upon which the trial judge relied as corroborative, the emotionally distraught condition of the girl after the offence, might go to corroborate evidence of non-consent if that were an issue in the case (R. v. White, Dubeau and McCullough; R. v. Basken and Kohl; R. v. Flannery; R. v. Boyd; R. v. Conner s and Jones), but consent or lack of consent is not at issue and I do not think it can be said that evidence in any way implicates the accused.
Thirdly, the presence of seminal fluid no doubt supports the complainant’s story that intercourse took place but it does not serve any other purpose. It does not show that the intercourse was without consent nor does it implicate any of the accused.
The fourth item, the human scalp hair, is in my view of such little probative value as to be incapable of corroborative effect. Corroboration must not be so meagre as to create a mere possibility that the accused committed the crime charged: MacDonald v. The King. All that the evidence amounted to was the finding of a single Caucasian,
[Page 368]
non-Indian, hair on the slacks worn by the complainant and the finding on Warkentin’s slacks of seventy hairs of Caucasian origin. The expert witness called by the Crown could not say that the single hair and the seventy hairs had come from the same source.
The fifth and final item of evidence which the judge placed before the jury as capable of corroborative effect, the pine needles, fails for many reasons. It does not strengthen nor confirm the evidence of the complainant on any issue.
The five pieces of evidence to which the trial judge referred tended to support the credibility of the complainant and they were no doubt admissible in evidence, but they cannot, in my opinion, be regarded as capable of being corroborative of the complainant’s evidence, within the meaning of s. 142 of the Criminal Code. There is simply no corroborative evidence which links the group (comprising the three accused and a fourth man) or any individual member of the group to the offence. The mere presence of the four men in the Town of Williams Lake on the night of the alleged crime can hardly serve as a nexus entwining the accused with the act of forced intercourse, nor can ownership of a red Mustang by one of the men. The evidence of identity must be such as to place the accused at the scene of the crime, not at some other place in the same town. I entirely agree that items of evidence said to implicate an accused may be looked at collectively and within the total picture of all of the evidence but if, lacking independence, none of the items is capable of corroborative effect, then no accumulation will serve to create that effect.
Before leaving the case, I would refer briefly to the question of jurisdiction. In his reasons for judgment, my brother de Grandpré properly draws attention to the failure to specify the grounds for dissent in the formal judgment of the Court of Appeal, an omission which he feels is fatal to jurisdiction in this Court. Section 606 of the Criminal Code, specifies the requirement as follows:
Where an appeal is dismissed by the court of appeal and a judge of that court expresses an opinion dissenting
[Page 369]
from the judgment of the court, the formal judgment of the court shall specify any grounds in law upon which the dissent, in whole or in part, is based.
Despite the incomplete nature of the formal judgment, I consider, with due respect for those of contrary view, that this Court has jurisdiction to hear the appeal. Section 618(1)(a) of the Code accords an appeal to any person convicted of an indictable offence “on any question of law on which a judge of the court of appeal dissents”. There is no reference in s. 618(1)(a) to s. 606, and I cannot conclude that it is fatal to an individual’s right to appeal that the formal judgment is irregular.
The issue as to the form of dissent necessary to found jurisdiction was raised in Canning v. The King, and left open, even though there was no clear statement of the point or points of law on which the dissent rested in either the formal judgment nor in the notice of appeal and no written reasons for the dissent were given. The situation is very different here, as the points of law on which Robertson, J.A. dissented are clearly set out in his reasons for judgment.
I would allow the appeal, set aside the judgment of the Court of Appeal for British Columbia and direct a new trial. This is not a case in which s. 613(1)(b)(iii) of the Criminal Code can have application to sustain the jury verdict, because one cannot say that the misdirection might not have influenced the jury in reaching the verdict.
The judgment of Martland, Judson, Ritchie and de Grandpré JJ. was delivered by
DE GRANDPRÉ J—The indictment against the three appellants reads:
THAT at or near Williams Lake, in the County and Province aforesaid, on or about the 5th day of May, A.D. 1973, being then and there together, they did unlawfully assault Helen Sandy, a woman not their wife and did have sexual intercourse with her without her consent, thereby committing rape, contrary to the form of the statute in such case made and provided and
[Page 370]
against the peace of our Lady the Queen, her Crown and Dignity.
A verdict of guilty was entered against all three. On appeal, the following order was pronounced:
THIS COURT DOTH ORDER AND ADJUGE that the Appeal of each of the Appellants from his conviction be and the same is hereby dismissed;
BE IT RECORDED that the Honourable Mr. Justice Robertson dissented from the judgment of the Court as aforesaid and would have allowed the appeal of each of the Appellants and quashed the conviction of each of the Appelants and ordered a new trial.
Although the dissent of Robertson J.A. is recorded, the formal judgment of the Court does not follow the prescription of s. 606 of the Criminal Code which enacts that the formal judgment “shall specify any grounds in law upon which the dissent, in whole or in part, is based”. Inasmuch as the present appeal has been entered as of right because of the dissent (s. 618(1)(a)), it is my view that we have no jurisdiction, the formal judgment not specifying the ground of dissent upon which the appeal is purportedly taken. The point was mentioned in Canning v. The King but the Court did not think it necessary to decide the question (p. 423).
Notwithstanding the foregoing, I now turn to the question of law raised by the dissenting reasons of Roberston J.A. The relevant part of the notice of appeal to this Court reads:
The learned trial judge erred in his application of the principles of law relating to corroboration as disclosed by the charge to the jury in which the learned trial judge instructed the jury that there had been adduced the following pieces of evidence which were capable of corroborating the evidence of the complainant:
(a) The written, admission made at trial on behalf of all three accused in the following words:
“At approximately 1:30 a.m. on May 6, 1973, the three accused and a fourth man were together at a dance at a place known as Squaw Hall at the Exhibition Grounds at Williams Lake, in the County of Cariboo, Province of British Columbia.
[Page 371]
“The accused and the fourth man were questioned and admitted that they had been together at an unstated time earlier in the evening.
“The red Mustang vehicle owned by the accused Hanson was parked at the dance but the accused were not occupying it when they were taken in for questioning.”
(b) The distraught condition of the complainant when picked up on a roadside by friends and at the time of her speaking to the police and the doctor.
(c) The presence of seminal fluid in the complainant’s vagina and on her panties.
(d) The presence of a human scalp hair of Caucasian origin on her jeans, which was similar to hair found on the clothing of one of the accused.
(e) The presence of pine needles in the crotch of the complainant’s underclothes…
The notice of appeal against conviction by each of the three appellants had put three other grounds before the Court of Appeal:
2. The Learned Trial Judge misdirected the jury on identification.
3. The Learned Trial Judge wrongly admitted into evidence an alleged first complaint.
4. The Learned Trial Judge failed to instruct the jury on the law with respect to aiding and abetting.
The last of these grounds was abandoned by appellants before the hearing took place in the Court of Appeal and the two others were rejected by all three justices. I have found it necessary to refer to this aspect because appellants have alluded to grounds 2 and 3 in the course of their argument. Of course, none of these three grounds is still open for this Court.
The issue of corroboration is the only one before us. Before turning thereto, we must have a look at complainant’s version. Helen Sandy, an 18-year-old native Indian girl, lives a few miles from Williams Lake. About noon, on May 5, she came to the town, did some errands including a visit to a laundromat. She spent some time with her cousin Marlene Chelsea, ending up in a room at the Ranch Hotel with her cousin and her cousin’s husband. Two or three times she wandered over to the Lakeview Hotel looking for friends of hers.
[Page 372]
She wanted to go to the dance. Eventually, around 9 p.m., near the Ranch Bar, she was grabbed by four men, three of whom are present appellants, who took her a short distance down the street, then forced her up into the back seat of a red Ford Mustang car and drove to a place called Glendale, which is a suburb of Williams Lake, approximately two miles away. On arrival at Glendale, at an isolated spot, one of them pulled her out of the car and threw her on the ground. Two of the accused then held her arms and one, after having undressed her partially, had intercourse with her without her consent while the fourth stood close by laughing. After the act on intercourse, Hanson took her into the bush, said he was going to get some cigarettes and told her that the others would also have intercourse with her if she was still there when he got back. She grabbed her clothes, ran down the road and was picked up by a car containing a friend, Diane Buckle, and George Ross. She was very upset and crying hard. On her return to Williams Lake, a few minutes later, she met another friend and was finally convinced to go to the police. The three appellants were arrested around 1:30 a.m. on May 6. As mentioned in the admission quoted in the notice of appeal, they were together at the time, had been together earlier in the evening and the red Mustang car was parked outside.
As to the first piece of evidence stated by the trial judge to be capable of corroborating complainant’s version, there was, of course, the admission; as to the other four pieces, there was testimony. The only issue before us: do these pieces of evidence have, in the circumstances of the case, a corroborative quality so that the trial judge was right in leaving them to be weighed by the jury?
Apart from that particular issue, the charge meets all the standards evolved over the years. In particular, it underlines:
[Page 373]
—corroborative evidence must be independent of the complainant (Hubin v. The King);
—there is no corroboration if the testimony is equally consistent with the truth as with the falsity of complainant’s story (Thomas v. The Queen).
Appellants’ basic submission is that for each of the three accused there are three issues, namely intercourse, absence of consent and identity, and that each of the three appellants must be looked at individually. In other words, in the case at bar, there were nine separate issues and there would be misdirection as to corroboration because, as stated in their factum, “in his charge to the jury, the learned trial judge did not distinguish which pieces of evidence were capable of corroborating which particular issue in the case but all the items were lumped together as being generally capable of corroborating the complainant’s story”.
The general principles on the issue of corroboration, especially in the case of a sexual offence, have been reviewed by Ritchie J. in The Queen v. Parish, who, at p. 472, adopted the following statement of McFarlane J.A., in his dissenting judgment in the British Columbia Court of Appeal, at p. 376:
“I think evidence which may be corroboration of the evidence of a female person in such a case is evidence which may, in law, be considered by the jury as evidence of a material particular implicating the accused in the commission of the crime alleged. A particular is material in this sense if it may, in the opinion of the jury, show or tend to show that the testimony of the female person that the offence was committed and committed by the accused is true, thus being relevant to the issue which the jury is called upon to decide. That issue in this case was simply whether or not there was an act of sexual intercourse. To be capable of being considered corroborative, evidence need not in itself prove the guilty act.”
As was said by Martin J.A. delivering the judg-
[Page 374]
ment of the Court of Appeal of Ontario in R. v. Boyce, at p. 572:
In many cases involving sexual offences there will be no physical evidence of the alleged offence. In cases of indecent assault and gross indecency, commonly, the only evidence of the element of indecency is the complainant’s evidence. The same situation may exist with respect to proof of penetration in some cases of rape. It is, of course, unnecessary to prove these elements independently of the complainant’s evidence. What is sought is independent evidence which makes it probable that the complainant’s testimony with respect to the vital issue or issues is true.
Corroboration is not a word of art. It is a matter of common sense. In recent years, this Court has repeatedly refused to give a narrow legalistic reading of that word and to impose upon trial judges artificial restraints in their instructions to juries or to themselves. It will be sufficient to refer to two cases.
In R. v. Kanester, the accused had been convicted of rape after a trial in the course of which, following the testimony of complainant, he had admitted being the person mentioned in her evidence so that the sole issue was the consent or non-consent. The notice of appeal to the Court of Appeal, amongst many grounds, raised misdirection in that the judge would have erroneously instructed the jury that the finding of a piece of string in the appellant’s car could be considered corroboration. The majority (Branca J.A., Norris J.A. concurring) agreed with that submission because in their view the connection of the string with the crime emanated from the complainant and, therefore, lacked the essential quality of independence; a lengthy quote from the judgment of this Court in Hubin supra, is to be found at p. 369 of the report. In his dissent, Maclean J.A. wrote (p. 379):
Ground No. 5: That the trial judge erred in instructing that certain matters could be corroborative.
This complaint was not particularized in the notice of appeal but the argument indicated that the appellant
[Page 375]
complained that the finding of string in the appellant’s car could be considered corroboration of the complainant’s story, as it would not be independent evidence incriminating the appellant.
It will be noted, however, that there was evidence from the girl that he had tied her hands with string. A doctor testified that there were marks on her wrists. There was evidence that string was found in the car. The learned trial judge did not say that the finding of string in the appellant’s car was corroborative of the girl’s story. He put it this way:
“Furthermore, evidence was given of some string which the police found in the car, and that string was put in evidence and you will see it. The Crown does not suggest that that very string itself was necessarily used to tie the girl’s hands but that the presence of that string in the car and other string is corroborative of the fact that her story could be true that the accused tied her hands up with string in the car itself. And I agree that you are at liberty to consider that as corroborative evidence—the string and the red mark on her wrist.”
It should be noted that there was evidence that the car in which the string was found belonged to the appellant.
The combination of circumstances indicated by the learned judge formed the basis for his direction that the evidence could be considered corroborative. In my view his direction was correct.
The Crown appealed to this Court and this particular ground was argued again. In appellant’s factum, the point was expressed thus:
For the reasons given in the dissenting judgment the Appellant respectfully submits that the Learned Trial Judge was not in error in charging the Jury in connection with the corroborative effect of string found in the car.
which respondent answered in his factum:
That the Learned Trial Judge erred in instructing the Jury that certain evidence of string found in the Respondent’s automobile was independent evidence tending to connect the accused with the crime of rape and hence corroborative of the Complainant’s account.
This Court (Taschereau C.J. and Fauteux, Abbott, Ritchie and Hall JJ.—there is an error in the report, Spence J. was not a member of that Bench)
[Page 376]
in an oral judgment, allowed the appeal and restored the conviction:
“We find no merit in the points argued before us on behalf of the respondent. We are in agreement with the reasons and conclusion of Maclean J.A.”
I now turn to R. v. Thomas, an unreported unanimous judgment of the Court of Appeal of British Columbia pronounced on June 22, 1970, and reversed on May 19, 1971 by this Court. Following a conviction of attempted rape in a case where consent or non-consent was the issue, the accused submitted two grounds to the Court of Appeal:
(1) that, when discussing corroboration, the trial judge had not repeated the warning he had already given when discussing circumstantial evidence and had not stated a second time that the facts could not amount to corroboration if they were equally consistent with the truth as with the falsity of complainant’s story on that particular point;
(2) that the five items of evidence enumerated by the trial judge as being capable of amounting to corroboration were not so capable.
The Court of Appeal accepted the first submission and on that basis ordered a new trial. However, Bull J.A., on the second ground, expressed “some grave doubts as to whether some or all of them could be deemed capable of being corroborative, under the particular circumstances of this case”. This potentially corroborative evidence was
(1) a missing button on complainant’s blouse;
(2) a missing clasp from her brassiere and a separation in the material;
(3) the girl’s distraught and disheveled condition that evening;
(4) her emotionally upset condition when seen by the investigating constable the following day;
(5) fairly fresh scuff marks at the edge of the road as seen by the constable the day after the assault.
[Page 377]
Leave to appeal was granted to the Crown on the following question of law:
Whether the Court of Appeal erred in holding that although the trial Judge charged the Jury generally on the circumstantial evidence rule he was obliged to give the Jury a separate and distinct instruction on the applicability of the circumstantial evidence rule as to corroboration.
At the conclusion of the hearing, this Court composed of Fauteux C.J. and Martland, Judson, Ritchie and Spence JJ., allowed the appeal and restored the verdict:
We are of the opinion that the learned trial judge gave to the jury an exact and satisfactory definition of corroboration and in the circumstances of this case, his charge was adequate and accurate.
This treatment of corroboration as a matter of common sense, the purpose of which is to ensure that no conviction will be entered if there is a reasonable doubt as to the guilt, is not restricted to Canada. It is sufficient for my purpose to refer to two recent decisions of the House of Lords, namely Director of Public Prosecutions v. Hester, and Director of Public Prosecutions v. Kilbourne. From the holding of this last case, I extract two sentences:
The word “corroboration” had no special technical meaning; by itself it meant no more than evidence tending to confirm other evidence. No distinction could, therefore, be drawn between evidence which could be used as corroboration and evidence which might help the jury to determine the truth of the matter.
Appellants have invoked the authority of the judgment of the Court of Appeal of Ontario in R. v. White, Dubeau and McCullough, and particularly the following sentence found in the judgment of the majority written by Arnup J.A., where the reference was to the judge’s charge:
He did not tell them that evidence which was equally consistent with the guilt or innocence of a particular accused could not in law be capable of corroboration against that accused.
[Page 378]
I simply wish to mention that Martin J.A., who concurred with Arnup J.A., in White, wrote in R. v. Boyce, supra, at p. 575:
The effect of this passage appears to have been misunderstood.
And then Martin J.A. explains the meaning of the passage. I cannot do any better than to refer in his reasons to the paragraphs immediately following the words just quoted.
When the indictment alleges, as in the case at bar, that a gang rape has been committed, the same common sense approach must be adopted. To insist that nine separate issues be submitted to the jury, namely intercourse, absence of consent and identity, in relation to each of the three accused individually, is to forget the realities of life; rape being a crime of the shadows, the Crown would never be in a position to adduce evidence of such a quality as to satisfy the criteria when applied separately to nine different issues. On that basis, one can well imagine the difficulties in the way of the Grown if the rape had been committed by six, eight or ten persons. It is no answer to state that in the light of s. 142 a conviction could always be entered on the basis of the complainant’s evidence; Parliament has not enacted that corroboration would not be available in the case of gang rape.
Such a submission also fails to take into consideration s. 21 of the Criminal Code. The common purpose that joins the perpetrators of a gang rape renders everyone of them a party to the offence and there is certainly no need when looking at the corroborative evidence to relate it to each accused individually. It is sufficient to relate it to the group. The trial judge was correct when he said:
Well, I tell you ladies and gentlemen of the jury, that if you are satisfied beyond a reasonable doubt that there are four people there in and circumstances which she described and these men were three of the four then it does not matter whether Hanson had intercourse with her or Ken, as long as one man—one of these four—had intercourse with her against her consent or with her consent if the consent was extorted by threats or fear of bodily harm, then all are guilty of rape. The basis of
[Page 379]
that, Crown counsel alluded to that law—but the basis of that law is found in Section 21 of our Criminal Code. Section 21(1) says everyone is a party to an offence who (a) actually commits it, (b) does or omits to do anything for the purpose of aiding any person to commit it or, (c) abets any person in committing it.
She has testified that one man had intercourse with her while two men were holding her arms preventing her from struggling and fighting and another stood there laughing right by her feet.
If you are satisfied beyond a reasonable doubt that, in fact, this is so then the men holding her arms would be aiders, they would be the ones who did something for the purpose of aiding any person to commit it. The person standing there at her feet laughing would be what you would call an abetter.
I am satisfied that the corroborative evidence of which s. 142 speaks need not identify each accused separately when the evidence to be corroborated is that a gang rape has been committed. It is sufficient to establish that intercourse without consent has taken place and that the group was a party to it. In the same fashion, I cannot accept the submission that the corroborative evidence of s. 142 must be pigeonholed in three different slots, namely intercourse, non-consent and identity. The wording of the section goes against that interpretation. On the text of the article, there is corroboration when the story of the complainant is “corroborated in a material particular by evidence that implicates the accused”. It is the entire picture that must be looked at, not a portion thereof. When that supporting evidence, as in the case at bar, is circumstantial, it is the whole that must be examined and not each piece individually. The corroborating evidence should not be broken up into fragments. Appellants’ submission is really the proposition that, in the case of sexual offences, corroboration may never be circumstantial because each piece must be complete in itself. Here again the trial judge should be quoted:
I say to you that these following bits of evidence are capable of being corroborative of the girl’s story. The fact that these men together—these four men were found together in Williams Lake within three or four hours or so of the alleged offence; the fact that they had admitted the four of them had been together earlier in
[Page 380]
the evening even though an unstated time; the fact that the red motor vehicle which was owned by the accused was at the dance; the distraught condition of the girl when seen by Diane Buckle; the fact that fluid, seminal fluid was found in her vagina and a spot in the crotch of her pants and that the fact that a human scalp hair was found on her jeans—I’ll have more to say about that because counsel suggested to you it was found only in the bag—was found on her jeans and it could have originated—not must have, could have originated from the same source as the seventy human scalp hairs or approximately seventy on Warkentin’s clothes. Each one of these pieces of evidence by itself is insignificant and does not prove there has been a crime committed or that the accused committed them but as I say, you must consider them all together…
Again, I remind you before, when I tell you that is being corroborative, before you find it is in fact corroborative of the girl’s testimony—that is, that it shows or tends to show that her story that the crime was committed namely rape and that the accused committed it, is true you must be satisfied that those pieces of evidence to which I referred taken as a whole are not only consistent with the truth of her story but inconsistent with any other rational conclusion.
The last part of this last sentence may be too favourable to the accused in that it appears to go beyond the test enunciated by this Court in the 1952 Thomas case, supra, where Cartwright J., as he then was, speaking for the Court, said that it was essential that it be made plain to the jury that (p. 354):
…facts, though independently established, could not amount to corroboration if, in the view of the jury, they were equally consistent with the truth as with the falsity of her story on this point.
I should add that the pine needles were mentioned by the trial judge when the jury was recalled. No objection to the charge was voiced in open Court by counsel acting for the accused; in Chambers, on a previous day, he had expressed the opinion that the fact that the accused “were arrested together in a red Mustang—perhaps that in itself may be corroborative—may be capable of being corroborative” but that putting all together was “just going a little bit too far”.
[Page 381]
Rape is particularly a crime for which juries are the proper forum. It is the type of offence the examination of which turns on an infinite number of small details related to the credibility of the witnesses, the community in which the actors and the jurors live, the standards of conduct in that area, etc. With that in mind, when the charge to the jury is practically letter perfect and is only attacked because the trial judge would have been wrong in listing the possible corroborative elements, a Court of Appeal should be very reluctant to intervene and declare that the charge amounts to misdirection; this is especially so for this Court, twice removed as we are from the scene, where as in the present case, the verdict has been upheld in appeal by a majority judgment. In my eyes, this principle is implied in, and the basis of, our 1966 judgment in Kanester, supra, and our 1971 judgment in Thomas, supra, two cases where the conviction had been quashed by the Court of Appeal and was restored by this Court.
Because each case really turns on its own facts, I do not propose to enter upon a study of the decided cases. In my view, it is sufficient to look at the evidence mentioned by the trial judge as capable of amounting to corroboration and to see whether, examined as a complete picture, it establishes the three elements under discussion. The intercourse is clearly established by the presence of seminal fluid. The non-consent could certainly have been considered by the jury as corroborated by the distraught condition of the complainant as well as by the pine needles; in this day and age, if the complainant had no objection to have intercourse with one or the other of the accused, it was certainly open to the jury to decide that there was no need to go into the bush; our permissive society would certainly allow for more comfortable quarters. Relevant to the identity, in my view, were the two other pieces of evidence mentioned by the trial judge, namely the written admission and the human scalp hair; for the four men to be together at the time of their arrest, to have been together earlier in the evening, to have through one of them possession of a red Mustang automobile, all of these admitted facts coupled with the presence of
[Page 382]
the human scalp hair of Caucasian origin on the jeans worn by the complainant constitute “evidence which might help the jury to determine the truth of the matter” D.P.P. v. Kilbourne, supra. Not only was this evidence relevant and admissible, it was capable of corroborating complainant’s evidence. Our judgment in Hubin, supra, does not govern the present situation because
(1) there was in that case no evidence that the accused was in the vicinity, on the contrary his statement had put him many miles away from the scene;
(2) there was in that case no other element left to the jury whereas in the case at bar, there is the additional factor of the hair which is certainly as capable of being corroborative as the piece of string in Kanester, supra.
The Crown when presenting a case based on circumstantial evidence is like a painter whose work is not to be judged after each stroke of the brush but simply at the end of the day. In the case at bar, the five pieces of evidence indicated by the trial judge to the jury as capable of constituting corroborative evidence should only be looked at together as a completed painting. Taken one by one, they do not tend to show that intercourse has taken place without the consent of the complainant with one or the other of the accused. Taken as a whole, however, they are certainly capable of establishing these three elements of the crime mentioned in the indictment.
For these reasons, I am in agreement with the reasons and conclusion of the Court of Appeal and I would dismiss the appeal.
BEETZ J.—I agree with Mr. Justice Dickson as to jurisdiction. I otherwise agree with Mr. Justice de Grandpré.
Appeal dimissed, LASKIN C.J. and SPENCE, PIGEON and DICKSON JJ. dissenting.
[Page 383]
Solicitors for the appellants, Melvin Granville Warkentin and Clifford John Brown: Messner & Foster, 100 Mile House.
Solicitor for the appellant, Ralph Harry Hanson: George L. Murray, Vancouver.
Solicitors for the respondent: Burke-Robertson, Chadwick & Ritchie, Ottawa.
Email this Content