Ambrose v. The Queen, [1977] 2 SCR 717

Supreme Court of Canada

Ambrose v. The Queen, [1977] 2 S.C.R. 717

Date: 1976-07-12

Richard P. Ambrose Appellant;

and

Her Majesty The Queen Respondent;

James Lawrence Hutchison Appellant;

and

Her Majesty The Queen Respondent.

1976: May 4; 1976: July 12.

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

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Criminal law—Capital murder—Trial—Charge to jury—Errors in charge—Circumstantial evidence.

Appellants were convicted of capital murder. The victims were two policemen who were last heard of when responding to a call to check a car in connection with the investigation of a kidnapping and whose dead bodies were discovered two days later. In the Appeal Division appellants urged eighteen grounds of appeal with two additional grounds as to the appellant Ambrose. The Appeal Division considered that the trial judge had made certain errors viz. (1) by failing to reprimand Crown Counsel for his use of the word “fiction” and not instructing the jury to disregard it, (2) by not more fully detailing the evidence not admissible against each accused, (3) by stating as facts conclusions not supported by the evidence, (4) by not more fully enumerating gaps in the Crown’s case and (5) in admitting evidence and statements inter alia of an intended kidnapping by Hutchison. However despite the finding of these errors the Appeal Division came to the conclusion that no jury properly instructed could have done otherwise than find appellants guilty and that there had been no miscarriage of justice.

Held: The appeals should be dismissed.

The Supreme Court like the Appeal Division was entitled to take cognizance of the mass of circumstantial evidence pointing well nigh irrefutably to the guilt of the accused and that despite such evidence neither accused

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offered any evidence in defence. The Appeal Division was entitled to apply s. 613(1)(b)(iii) of the Criminal Code and properly found that there had been no substantial wrong or miscarriage of justice.

Colpitts v. R., [1965] S.C.R. 739 referred to.

APPEALS from a judgment of the Supreme Court of New Brunswick, Appeal Division[1], dismissing appeals from appellants’ convictions by Dickson J. with jury upon two charges of capital murder. Appeals dismissed.

J.E. Warner, Q.C., for the appellants.

Donal Friel, Q.C., and C.A. Dumas, for the respondent.

The judgment of the Court was delivered by

SPENCE J.—These are appeals from the judgments of the Appeal Division of the Supreme Court of New Brunswick both pronounced on July 18, 1975. By those judgments, the said Appeal Division dismissed the appeal of each of the appellants from their conviction by Dickson J. and a jury on April 1, 1975 upon two charges of capital murder contrary to s. 218 of the Criminal Code.

Reasons for judgment in the Appeal Division were given by Limerick J.A., and the learned justice on appeal set out the facts in a very complete and detailed fashion. The judgment in the Ambrose case is now reported at (1975), 7 A.P.R. 376, and in the Hutchison case at (1975), 7 A.P.R. 327, and also at (1976), 26 C.C.C. (2d) 423. I repeat that statement of facts:

On the night of December 13th, 1974, Mrs. Sara Stein, mother of Mr. Simon Stein, sometimes referred to as Cy Stein (a restaurant proprietor), and the 14 year old son of Cy Stein, Raymond Stein, were driven to Mr. Stein’s home from his restaurant about 10:30 p.m. by an employee of Mr. Stein, Jean Stone, who let them out of her automobile and immediately returned to the restaurant. Both the home of Mr. Stein and the restaurant are in the City of Moncton, New Brunswick.

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Raymond Stein unlocked the front door of the residence and when he and his grandmother entered they were confronted by two masked men of short stature both armed with revolvers, one of whom asked where “Cy” was. On being informed by Mrs. Stein her son was at the restaurant they proceeded to bind her wrists and tie her to the railing of the stairs leading upstairs. They then left the house by a side door on the ground floor taking Raymond Stein with them. Before doing so, they placed a balaclava or ski hat over the boy’s head backwards. One man stayed with the boy at the street while the other left and returned with an automobile. The front seat of the car was pushed ahead and the boy and one of the men got into the rear seat of the car which was fairly roomy. The seats were covered with fabric. The boy heard conversation between two people only. They then drove him to an apartment where they kept him for several hours with the balaclava still over his head.

The head covering did not completely cut off the vision of the boy because of the nature of the material of which it was made. He could distinguish light and darkness and indistinct forms. Raymond was able to trace part of the route followed by the vehicle in which he was being conveyed. It went to the corner of Mount Royal Boulevard and Bessborough Avenue, turned right on Mount Royal, then left on St. George Boulevard past Centennial Place thence to the New Brunswick Power Plant and Edinborough Drive and past an A & W take-out restaurant on Mountain Road.

En route one stop was made during which one of the kidnappers took Raymond from the back seat to a telephone attached to the side of the building. One man dialed Mr. Stein’s number and there was a conversation by the boy and by the man with Mr. Stein.

The next stop was at an apartment. The kidnappers took the boy through an entrance door and up two flights of stairs. Raymond testified the stairs were not wood or carpeted but more like concrete. They then went through a hallway into a room where the boy sat on the carpeted floor. There was a window in the room. The boy had considerable conversation with the men, most of which was with the man who had been in the back seat with him. One of the men got $10 from the boy, left the apartment and returned with some cooked chicken and coke. The man who stayed with the boy while the other went out also sat on the floor. After several hours all three left the apartment by a rear door and got into a car again. The boy got into the back seat, the same as he had done before, by having the front seat moved ahead.

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The rear seat was roomy and the seat was fabric covered as before.

After leaving the apartment the car was driven to the Riverview Mall across the river from Moncton by way of the causeway. One man was in the back seat with the boy and he did not know if there was anyone in the front seat besides the driver or which man was in the back seat with him as there was no talking.

The car stopped past the Riverview Mall and they waited in the car until Mr. Stein came in his Thunder-bird car and dropped $15,000 in $10 bills contained in a canvas bag some distance ahead of the kidnappers’ car. Mr. Stein then drove forward about 100 yards and stopped. The car in which the boy was held was driven forward to where Mr. Stein had dropped the money in the ditch and the boy was then released. When he got halfway to his father’s car he took off the head covering. Mr. Stein and his son then drove back to the restaurant.

Mrs. Sara Stein, 15 or 20 minutes after being tied up, worked her wrists free and called Mr. Stein at the restaurant who immediately drove home where, shortly after arriving, he received a telephone call from a man whom he was then unable to identify; he also on the same occasion talked to his son on the phone. As a result of the phone call he went back to the restaurant to see how much money he had there. While at the restaurant he received a second telephone call from the same man, following which Mr. Stein telephoned Mr. Milton Palmer, Manager of the Bank of Nova Scotia, and arranged for Mr. Palmer to attend at his branch of the Bank to obtain $15,000 for Mr. Stein who then returned to his residence where he received a third telephone call from one of the kidnappers. After this call Mr. Palmer and his bank accountant delivered $15,000 in $10 bills to Mr. Stein at his residence, having first dictated the serial numbers of a number of the bills on the tapes of two dictation machines.

Shortly after the Manager left Mr. Stein’s residence the latter received a fourth telephone call at about 3:30 a.m. during which he was instructed to drop off the money which was enclosed in the canvas bag in a ditch just west of the Riverview Mall across the river south of Moncton.

The last two telephone calls were monitored by one of the Moncton policemen at the New Brunswick Telephone Company building with the aid of Telephone

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Company technicians and with the consent of Mr. Stein. There were some discrepancies in the evidence as to the exact time of the various telephone calls which can be accounted for by the fact that the wrist watches of the witnesses were not synchronized.

Mr. Stein then proceeded to take the money in his dark brown Thunderbird car across the causeway to Riverview, then turned right or westerly along the Salisbury or Coverdale Road about one mile to the Riverview Mall. He stopped the car about 100 yards past the Mall and dropped the bag of money out of the right door of the Thunderbird into the ditch and drove ahead a short distance, stopped the car and waited until his son Raymond Stein came forward and got into the Thunderbird car. Mr. Stein then turned the car and drove easterly along the Salisbury Road and returned to the restaurant.

The Moncton Police failed to notify the Royal Canadian Mounted Police, who had jurisdiction in the area surrounding Moncton including the Riverview area, of the kidnapping until about 5:30 a.m. of the morning following the kidnapping; as a result no road blocks were set up until after the boy was released.

In spite of the fact that the last telephone conversation lasted for seven minutes from 3:30 to 3:37 a.m. or from 3:37 to 3:44 a.m., depending upon from whose watch the time was taken, the location from which the call was made was not traced at the telephone office and the Moncton Police failed to have police cars in the Riverview Mall area until Mr. Stein was returning home with his son.

Four police cars were dispatched to the Mall area, two of which met and passed Mr. Stein’s Thunderbird east of the Mall on its way back to the restaurant.

One police car parked in a private driveway just east of the Mall; a second proceeded to set up a road block west of the Mall, and a third police car, occupied by the two now deceased police officers, Cpl. Bourgeois and Cst. O’Leary, went to an area east of the first above-mentioned police car. Each of the deceased was armed with a revolver and there was a shotgun in the car.

Detectives Cairns, Cassidy and Cudmore, occupants of the police car parked east of the Mall, observed a 1968 to 1970 two door Cadillac car with a light beige body and dark top following a blue Dodge which latter car they had observed passing them twice before.

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The Cadillac turned southerly on Wentworth Street and as it entered that street the headlights went out. It turned about on Wentworth Street and returned northerly and turned right and proceeded easterly on the Salisbury Road, otherwise known as the Coverdale Road, with the lights still out.

The three detectives decided to follow the blue Dodge and back up the two policemen Crandall and Galbraith when the latter stopped the Dodge car which they found contained the Chief of the Moncton Police Force and two other people. As they started to follow the Dodge one of the officers radioed Cpl. Bourgeois and Cst. O’Leary to check a Cadillac with a dark roof and light-coloured body. Cpl. Bourgeois replied “Okay”. The bodies of Cpl. Bourgeois and Cst. O’Leary were discovered on December 15, 1974, in shallow graves at Evangeline about 15 miles northeast of Moncton.

Before the Appeal Division, the appellants urged eighteen grounds of appeal as to both appellants and two additional grounds as to the appellant Ambrose.

On the appeal to this Court, counsel for the appellants set out the points in issue and their position as follows:

POINTS IN ISSUE AND
POSITION OF THE APPELLANTS

1. Was the Court of Appeal for the Province of New Brunswick wrong in holding that:

(a) Notwithstanding the finding of prejudicial errors on the part of the trial Judge, no reasonable jury properly charged could have come to any other conclusion than the guilt of the accused?; and

(b) In finding there was no substantial wrong or miscarriage of justice?

2. Did the Court of Appeal for the Province of New Brunswick also err in finding that:

(a) The trial Judge was right in his instructions to the jury as to reasonable doubt regarding the victims acting in the course of duty; and

(b) In holding that the jury in finding capital murder was correct?

The Appellants respectfully submit that the Court of Appeal for the Province of New Brunswick erred in findings under both points 1 and 2.

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At the commencement of the argument, counsel for the appellants expressly withdrew the point outlined in para. 2(a) above.

In his very carefully considered reasons, Limerick J.A. dealt with the trial and with the judge’s charge and then summarized his conclusions as follows:

In summation the trial Judge made certain errors during the trial, specifically:

1. In failing to reprimand Crown Counsel for his use of the word “fiction” and not instructing the jury to disregard it.

2. In not more fully specifying the evidence which was admissible against one accused and not against the other.

3. In stating as facts certain conclusions he arrived at which were not supported by evidence, particularly, the reference to an illegal drug bill.

4. In not more fully enumerating the discrepancies and gaps in the Crown’s case.

5. In admitting evidence of an intended kidnapping of J.D. Irving by Hutchison, and also in admitting evidence of a statement by Hutchison to James Nelligan that the former had been involved in an armed robbery in Ontario and had asked his accomplice to kill a policeman.

I shall briefly comment on some of the errors which Limerick J.A. found.

1. This error was a most inconsequential one. The learned trial judge had expressly instructed the jury in the usual manner that they were the sole judges of the facts and should exercise their judgment in weighing both the testimony of the witnesses and the addresses of counsel.

2. It is true that the learned trial judge did not in complete detail separate the items of evidence which were admissible as against one accused but not against the other accused. The learned trial judge, however, did, in his charge, say to the jury:

I must say this though, here we have two accused who are jointly charged but you must consider the case of each accused separately and you must apply the evidence here against each accused separately and, more than that, you must bear in mind there is some evidence which is applicable against one accused which may not be applicable against the other accused. You don’t say

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to yourselves, look, those two accused we will just consider them in one lump sum and the evidence is strong that those men were murdered and one of the accused must have murdered him or them so therefore both accused are guilty. You must consider each man, you must ask yourselves “am I satisfied beyond a reasonable doubt that Hutchison killed those two men or killed one or the other of them” and then you must ask youselves, “Am I satisfied beyond a reasonable doubt that Ambrose killed those two men or killed one or other of them”. There is certain evidence that is applicable perhaps in the case of one that is not applicable in the case of the other and you must ignore it in so far as you can. You must ignore it totally, as a matter of fact, in considering the case of the other.

The learned trial judge then continued over several foolscap printed pages to refer to examples of pieces of evidence which were admissible as against one accused only and not against the other. Having outlined the principle of separate consideration of the cases against each of the accused, and after having warned the jury that they must consider each piece of evidence and determine whether it was evidence against one or both of the accused, I do not think the learned trial judge was required to enumerate every piece of evidence which was admissible against only one of the two accused, and I am of the opinion that his failure to do so did not constitute any miscarriage of justice.

3. The learned trial judge in his charge did state certain conclusions which were not supported in the evidence. The jury were carefully instructed by the learned trial judge that it was their decision upon the facts alone which was of any importance and, in my view, these few and rather inconsequential so-called conclusions by the learned trial judge were, in fact, surmises which he made and which the jury would understand he was making and which the jury would realize they could accept or reject as they deemed fit. It would have been much better if the learned trial judge had refrained from such a course. Again, I do not regard his adoption of it on these very few occasions as causing any miscarriage of justice.

4. In finding this fault in the learned trial judge’s charge, Limerick J.A. was referring to the outline of the theory of the defence by the learned trial judge. It must be noted that neither of the

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accused gave evidence and, in fact, no evidence was called for the defence. The learned trial judge was, therefore, called upon to determine the theory of the defence from consideration of the cross-examination of the Crown’s witnesses by defence counsel and then from the defence counsel’s address to the jury. The learned trial judge said:

I am obliged to review here the theory of the defence, what is known as the theory of the defence, and Mr. Bell has outlined it and outlined it extremely well and dealt with all aspects of the defence essentially and I have touched on it in some of the things I have had to say. Essentially the theory of the defence is that the evidence here is all circumstantial, that even though no alternative explanation is given there are gaps in the Crown’s case which indicate there are alternative explanations and if there is any other logical explanation of this then a jury must under the rule I cited earlier where all the evidence is circumstantial, the jury must be satisfied beyond a reasonable doubt or it must acquit. This is the first point of the theory of the defence. The second is on the theory, the burden being on the Crown to satisfy you of the guilt of the accused beyond a reasonable doubt, that the Crown has failed in that and therefore you must acquit. That, in a nut-shell, is the theory of the defence and, Mr. Bell, I don’t feel it is necessary to go into the evidence there, the theory has been put forward, Mr. Bell has done that most adequately and has pointed out what undoubtedly are some discrepancies, whether material or not is up to you to decide, in the evidence of the witnesses.

The indictment of the two appellants showed the names of seventy-six witnesses who were called by the Crown. The evidence at trial occupies four foolscap printed volumes and ran to 1371 pages. If counsel for the defence based the theory of the defence upon discrepancies in 1371 printed pages of evidence given by Crown witnesses then it was his duty in his address to outline those discrepancies. The learned trial judge was of the opinion that counsel for the defence had done so most adequately and was, therefore, I think, properly of the opinion that it was neither necessary nor desirable that he should repeat the outline of those discrepancies in his charge. The charge and recharge occupied fifty-nine foolscap printed pages and the main charge occupied two hours and five

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minutes. To have burdened the jury with a recital of discrepancies which had already been outlined in the very long and most complete address of counsel for the accused would not have served any useful purpose and might well have so confused the jury as to detract from their efficient discharge of their sworn duty.

5. Counsel for the Crown on this appeal frankly admitted that this evidence was inadmissible and it is most regrettable that it should ever have been proferred by the Crown let alone admitted by the learned trial judge. Unfortunately, the learned trial judge not only admitted the evidence but made considerable reference to it in his charge, evidently being of the opinion that it was admissible to show the state of mind of the appellant Hutchison. Limerick J.A., in giving reasons for the Appeal Division, said:

Some of these errors on the part of the trial Judge would not by themselves be of sufficient weight to prejudice the jury or result in a miscarriage of justice. The last mentioned error was however extremely prejudicial. We must however, consider the cumulative effect of all the errors and against that, the weight of the evidence against the Appellant.

As will be seen from the statement of facts aforesaid, it was the theory of the Crown that these two accused had formed the intention of kidnapping a member of the Stein family, probably the father Cy Stein, but as the events occurred, they did kidnap the young son Raymond Stein, that they demanded from the father a ransom, that that ransom was paid and that as they left the place where they had received the payment they were followed by the two deceased policemen Cpl. Bourgeois and Cst. O’Leary, that they, in turn, captured these two officers and subsequently killed them. Upon this theory, it was necessary for the Crown to adduce all possible evidence pointing toward the occurrence of the various events. Limerick J.A., in his reasons, after referring to the evidence of the fourteen-year-old kidnapped victim Raymond Stein, referred to

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forty-six items of circumstantial evidence indicative of the guilt of the two accused. One of these only was stated by the Crown counsel in this Court to have been in error. Limerick J.A. then continued:

In my opinion the massive weight of the circumstantial evidence against Hutchison and his co-accused Ambrose is so overwhelming that no reasonable jury properly instructed and acting judicially could have come to any conclusion other than that both of the accused were guilty of the murders of the two police officers as charged in the indictment, notwithstanding the cumulative effect of the five errors referred to above.

In applying that test, Limerick J.A. followed the decision of this Court in Colpitts v. R.[2] There, I said (at p. 755):

Therefore, this Court must apply the test set out in the aforesaid cases and, to quote again from Brooks v. The King, [1927] S.C.R. 633, [1928] 1 D.L.R. 268:

The onus is upon the Crown to satisfy the Court that the jury, charged as it should have been, could not, as reasonable men, have done otherwise than find the appellant guilty.

That test may be considered to be somewhat more stringent than those enunciated by the then Chief Justice Cartwright and by Ritchie J. but Limerick J.A. chose to apply the sterner test and was of the opinion that even on that basis the jury could not have come to any conclusion other than that both of the accused were guilty of the murder of the two policemen as charged. Despite the able argument of counsel for the appellants, I am unable to find any fault in that conclusion.

Counsel for the Crown in this Court cited six other pieces of evidence which also indicated the guilt of the accused of the offence with which they were charged. Some of those are of slight probative value but others add considerable weight.

In addition, this Court is, of course, as was the Appeal Division, entitled to take cognisance of the

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fact that despite this mass of circumstantial evidence pointing well nigh irrefutably to the guilt of the accused neither of the accused offered any evidence in defence. I need not cite authority for the proposition that such a circumstance is a proper one for an Appellate Court to consider. Therefore, Limerick J.A. came to the conclusion that the Appeal Division was entitled to apply the provisions of s. 613(1)(b)(iii) of the Criminal Code and found that there had been no substantial wrong or miscarriage of justice. I am in complete agreement with that view.

I would, therefore, dismiss both appeals and affirm the conviction of both of the appellants.

Appeals dismissed, convictions at trial affirmed.

Solicitor for the appellants: James C. Letcher, Moncton.

Solicitor for the respondent: D.J. Friel, Moncton.