R. v. Isaac, [1984] 1 SCR 74

Supreme Court of Canada

R. v. Isaac, [1984] 1 S.C.R. 74

Date: 1984-02-02

Her Majesty The Queen Appellant;

and

Eugene Isaac Respondent.

File No.: 16971.

1983: October 19; 1984: February 2.

Present: Dickson, Beetz, Estey, Mclntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Parties to an offence—Murder—Charge to the jury—Instructions excluding s. 21 from the consideration of the jury—Error in law—Criminal Code, ss. 21 and 218.

Following a fight involving respondent and several other persons on an Indian Reserve in Restigouche, respondent was accused of second degree murder under ss. 218 and 21 of the Criminal Code. He was acquitted at trial and a Crown appeal to the Quebec Court of Appeal was dismissed. Leave to appeal was granted by this Court to determine whether the trial judge had erred in his charge to the jury as to the applicability of s. 21 of the Code.

Held: The appeal should be allowed and a new trial directed.

The words employed by the trial judge in his charge to the jury dealing with the applicability of s. 21 of the Criminal Code could convey no other meaning to a jury than that s. 21, dealing with parties to offences other than those who actually commit them, did no apply in this case. However, there was evidence upon which a properly instructed jury could have found that respondent was a party to the unlawful killing and could therefore have been convicted. Given the evidence, it was a fatal error in law to exclude consideration of s. 21(1) of the Code from the jury. It did not matter that only one person was charged. Where there is evidence that more than one person participated in the commission of an offence, it is appropriate to direct the jury with respect to the provisions of s. 21(1) of the Code.

R. v. Sparrow (1979), 51 C.C.C. (2d) 443, approved.

APPEAL from a judgment of the Quebec Court of Appeal, rendered on February 22, 1982, dismissing an appeal from a verdict of acquittal by a judge and a jury. Appeal allowed.

[Page 75]

Michel Babin and Gilles Fournier, for the appellant.

Lucien Grenier, Q.C., for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—The respondent was charged with second degree murder in an indictment which read:

That at Restigouche, on or about June the 15th 1979, did illegally commit a second degree murder on the person of Brennan Arsenault, committing thereby an indictable offence under the article 218 and 21 of the Criminal Code of Canada as amended to date.

He was acquitted at trial and a Crown appeal to the Court of Appeal was dismissed. This appeal is by leave granted March 15, 1982.

The respondent Eugene Isaac and the deceased Brennan Arsenault (also known as Brian) lived on an Indian reserve at Restigouche. At the time of the killing the Isaacs and the Arsenaults were not on good terms. This was at least partly due to a feud between one Delphis Wysote, another resident of the reserve and a sometime friend of the Arsenaults, and members of the respondent’s family. Some months before the killing Delphis had stabbed Isaac’s brother who retaliated a week later by firing a rifle at Delphis. Both were convicted and imprisoned.

Around midnight on June 14, 1979 a minor scuffle occurred involving the deceased and the respondent in which the deceased “played with” the respondent’s hat. Talbert Isaac, the respondent’s brother, chased the deceased and his brother away, terminating the incident. Several witnesses said that the respondent had not reacted angrily or aggressively on that occasion and it does not appear to have been serious.

At approximately 2:00 a.m. on June 15, the respondent and his sister visited the deceased’s home. The respondent’s brother, Donald, and his friend, Murray Barnaby, either accompanied them or arrived at the Arsenault’s house shortly after. Elizabeth Hewitt, a sister of the deceased, and her brother, Lloyd Arsenault, were downstairs in the

[Page 76]

house drinking. The deceased, who had been drinking a good deal that day, was sitting at the dining room table asleep. According to the respondent, he was offered a beer. Then an argument began involving Lloyd Arsenault and Delphis Wysote which led to an invitation by the respondent to Lloyd Arsenault to come outside and fight. The assembled company went outside, including the deceased who had awakened. What then occurred is best described by the respondent in an extract from a statement he made to the police which was admitted in evidence. It is reproduced hereunder in the form in which it is recorded in the transcript.

So me and Murray, my sister to Arsenault’s place. Leona entered in Elizabeth’s house with me at the same time. Ten (10) minutes after, Lloyd Arsenault started arguying with me. Delphis put is nose in our business. I said to Lloyd: “If you want to fight why don’t you come outside.” So we went outside me and Lloyd and as soon I grabged Lloyd Brian Arsenault jumped in my back. So I threw Brian off my back on the ground. The I got on top of him and started punching on his face with my fist about five (5) times. So I left him there. At the same time, Murray Barnaby was trying to get after Lloyd Arsenault. After, I grabbed Lloyd. I did not fight long with him because Donald Isaac came and we both fighting with him.

And at that time, Murray was punching Brian on his face. So Mercer came out and me and Donald were fighting with Lloyd. So he came toward us and started yelling, and we stopped fighting. And Elizabeth Arsenault was on the porch.

Donald was arguing with Mercer, he sent him back in the house and he went in. He just jumped in the house and came out. And we all took off and started running towards my brother’s house, Reggie. We all are hiding in the basement. After five (5) minutes, we have been there, Carmen told us to leave and we went at my father’s house.

The police put some questions to the respondent and the questions and answers were given in evidence. They are set out hereunder:

Q. Did you use to go at Arsenault’s case?

A. No.

Q. Why did you go there?

A. Because my sister wanted us to go.

[Page 77]

Q. Who was in the house when you got in?

A. Delphis Wysote, Elizabeth Arsenault, Brian Arsenault, Lloyd Arsenault and Murray were standing right besides the door.

Q. Why did stay there?

A. Because they offered me to have a beer.

Q. During the arguing did you mention the name of your brother Leonard?

A. Yes.

Q. What did you say about him?

A. Because Lloyd told that he already tried to bet me.

Q. Lloyd told that…

A. …

A. Lloyd told that he already tried to beat him up on the street. And Delphis said that he already take care of… I told to Delphis: You have already cut him up before.

Q. How come Donald got involved in that fight?

A. Probably to help me.

Q. When did you see him first?

A. When he was going home by the driveway of Reggie Isaac towards my brother’s place.

Q. When you saw him was it during the fight?

A. During the fiht, yea.

Q. Did you see someone with something in his hand during the fight?

A. No I was to busy to fight with Lloyd.

Moments after the melee outside the house commenced, Elizabeth Hewitt’s husband, Mercer Hewitt, who had been upstairs in bed, arrived on the scene, stopped the fight and discovered that Brian Arsenault was dead.

The medical evidence given by the pathologist who conducted an autopsy on the deceased was that death was caused by a heavy blow or blows to the front part of the head with some kind of blunt object such as a fist or a large piece of wood. The damage was severe. The skull was fractured in the left frontal region, the brain had been pushed back and there was extensive cerebral hemorrhaging. Under cross-examination by defence counsel, Dr. Bachand admitted that death could have been caused by a single hard blow but said it was unlikely to have been caused by injury to the back

[Page 78]

of the head. According to the medical evidence, all of the major head wounds sustained by the deceased occurred while he was still alive. The evidence of heavy drinking on the deceased’s part was confirmed by his blood alcohol reading of 222 milligrams per 100 millilitres of blood. In his charge to the jury the trial judge adequately dealt with the elements of murder and manslaughter and the significance of drunkenness on the part of an accused in relation to those offences. This part of his charge was not challenged in this Court. The basis of the Crown’s challenge to the verdict is that portion of the charge on the applicability of s. 21(1) and s. 21(2) of the Criminal Code. After reading the subsections and giving hypothetical examples of their application, he told the jury:

It is my responsibility to tell you that the first part of article twenty-one (21) cannot apply in, to this case, provided you can draw from the evidence that the accused and his companions had the intent of going at Arsenault’s place and start a fight. They had no intention of killing anybody. It was then their common purpose in engaging in a fight. Not to kill anybody.

So, the first part of article 21 applies only to a charge which may be laid down in this case, a charge of assault with intent to cause bodily harm which is not the charge here in this case.

The second part of article twenty-one (21) does not apply either. I’ll tell you why. If somebody starts to fight, there is a possibility that somebody might be killed, but it is not a probability. The article says that the commission of an offence will be the probable consequence of carrying out a common purpose.

When there is only a possibility that an offence may be committed, the article does not apply. It is only where there is a probability. In this case, the common purpose of the three (3) purposes [sic] were only in engaging in a fight and not to kill anybody and I don’t think you can draw from the evidence that there was a probability that man might be killed in—during the fight.

So, this part of article twenty-one (21) does not apply either.

After deliberating for some time, the jury returned and requested more instruction on the crime of

[Page 79]

manslaughter. The judge re-directed the jury and said in part:

In order to find the accused guilty of manslaughter, you have to come to the conclusion that the Crown has proven all the elements of the murder, except the element on intent to kill a human being.

That is to say that one, the death of the victim was caused by violence, two, that the death of the victim was the consequence of the blows given by the accused and not by someone else, three, that the wounds inflicted to the victim are these blows that caused the death of the victim.

On these three elements, you have to come to the conclusion that each and everyone of them has been proven beyond reasonable doubt. If you have a doubt on one of these elements, the crime of manslaughter has not been proven, but if you come to the conclusion that all of these elements have been proven beyond reasonable doubt, then, you have a crime of manslaughter.

The Court of Appeal dismissed the Crown’s appeal from the acquittal of the respondent. While each of the three members of the Court wrote separate reasons for judgment, they were in agreement that the charge to the jury, although perhaps not perfect, did not contain such errors as to warrant a direction for a retrial. They also considered that the points raised by the Crown related to questions of fact or, at best, mixed fact and law and not law alone. Monet J.A. further expressed the view that the trial judge had not, as asserted by the Crown, withdrawn consideration of s. 21 from the jury’s consideration, but had merely given his opinion on the facts as he was entitled to do.

In this Court the Crown contended that there was sufficient evidence to go to the jury as to whether the respondent was a party to the unlawful killing within the meaning of s. 21(1) and s. 21(2) of the Criminal Code. The trial judge erred, therefore, in directing the jury to disregard the provisions of s. 21 of the Code. It was asserted that the issue raised was one of law, not mixed fact and law. If the jury had been properly instructed, they would have had no other choice than to convict the

[Page 80]

respondent of at least manslaughter. The respondent contended that the comments of the judge, referred to above, were mere expressions of his opinion that s. 21 could be inapplicable depending on the jury’s view of the facts. The Court of Appeal did not err in considering that the issues raised by the Crown were matters of mixed law and fact. It was further contended that in any event on the evidence there was no occasion to charge under s. 21 of the Code.

At the outset I must observe that I cannot accept the argument that the words employed by the trial judge in dealing with the applicability of s. 21 of the Criminal Code amounted only to an expression of opinion as to the facts. In my opinion, the words appearing in the record could convey no other meaning to a jury than that s. 21, dealing with parties to offences other than those who actually commit them, could not be applied in this case. This meaning could only have been reinforced by the later remarks made in response to the request for further instructions in which the trial judge said that in order to convict the jury had to be satisfied that “the death of the victim was the consequence of the blows given by the accused and not by someone else”. I am therefore of the view that the Crown’s assertion that consideration of s. 21 of the Code was removed from the jury is well-founded.

What then was the consequence of this direction with respect to s. 21 of the Criminal Code? A brief reference to the evidence is necessary to find the answer. It is perfectly clear that there was evidence upon which a jury could have found that an offence was committed, an unlawful killing, which could have been murder or manslaughter. There was as well evidence from which a jury could have concluded that both the respondent and Barnaby participated in the assault which caused the death and in doing so assisted each other, Barnaby engaging Lloyd Arsenault while the respondent pummelled the deceased and later joining the attack on the deceased while the respondent “grabbed Lloyd”. There was nothing, however, in

[Page 81]

the evidence of those who participated in the fighting or in the medical evidence to enable the jury to say whose blow or blows caused the death. The inescapable conclusion from the medical evidence, however, would have been that the injuries received by the deceased resulted in his death, all having been suffered before death. It follows then that a properly instructed jury could have found on the evidence that the respondent and Barnaby were parties to the unlawful killing and could therefore have been convicted. It was in these circumstances a fatal error to exclude consideration of s. 21(1) of the Code from the jury.

I do not overlook the fact that only the respondent was charged in the indictment and that the record is silent as to charges that may have been brought against the other participants. Nonetheless, where there is evidence that more than one person participated in the commission of a crime, even though only one is charged, a direction under s. 21 of the Criminal Code may be necessary. I note the words of Martin J.A. in R. v. Sparrow (1979), 51 C.C.C. (2d) 443, at p. 458, where, speaking for the Ontario Court of Appeal (Martin, Lacourcière and Thorson JJ.A.), he said:

I am of the view that it is also appropriate, where an accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, to direct the jury with respect to the provisions of s. 21 of the Code, even though the identity of the other participant or participants is unknown, and even though the precise part played by each participant may be uncertain.

I adopt those words as a correct statement of the law.

It was also contended that the trial judge erred in excluding consideration of s. 21(2) of the Criminal Code from the jury. I do not propose, however, to deal further with the matter since a new trial must, in any event, be directed because of the error with respect to s. 21(1) of the Code. A decision as to the applicability of s. 21(2) must await a new trial and will be based upon the state of the evidence then adduced.

[Page 82]

I might observe that in this Court counsel for the respondent conceded, while contending that there was no evidence to warrant a charge to the jury under s. 21 of the Code, that if sufficient evidence had existed it would have been error in law to exclude that section from the jury.

The Crown seeks a new trial on a charge of manslaughter only. I would allow the appeal and direct a new trial on a charge of manslaughter.

Appeal allowed.

Solicitors for the appellant: Michel Babin and Gilles Fournier, Sept-Iles.

Solicitors for the respondent: Grenier, Grenier & Grenier, New Carlisle.