Supreme Court of Canada
Powell v. R., [1977] 1 S.C.R. 362
Date: 1976-04-01
Lonnie William Powell Appellant;
and
Her Majesty The Queen Respondent.
1976: February 2; 1976: April 1.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Criminal law—Evidence—Oral statement by accused to police officer—Failure to hold voir dire—Error on part of trial judge in admitting evidence with respect to oral statement—Miscarriage of justice.
Appellant was charged with two counts arising out of the same incident, one of indecent assault and one of assault causing bodily harm. At his trial by a judge without a jury the central question was that of identity.
The complainant was attacked in a parking lot and shortly thereafter a man was seen standing over her with his hand up as if to strike her. After shouting at the man, the complainant’s common-law husband pursued him to a parking lot in the next block. He there lost sight of him but subsequently saw a man he was sure was the same man, near a truck. This man, later identified as appellant, was removed with some difficulty to a building in front of the parking lot and police were summoned.
Two police constables arrived and they spoke first to the complainant. During this conversation she pointed to appellant who was seated in plain view some 15 feet away, and stated that he was her attacker. As a result, the constables took appellant into the street and there charged and cautioned him and challenged him with the information they had received from the complainant. Appellant denied being in the area and denied being with any woman. At this point he was placed in the cruiser car and one of the constables sat with him while the other constable attended to other duties.
While in the cruiser car, the constable again asked appellant about his connection with the incident. Appellant then said he had been helping the woman. However, after being removed to the Public Safety Building,
[Page 363]
where he was questioned by detectives, the appellant twice repeated having no knowledge of the occurrence.
As part of its case, the Crown offered the evidence of the oral statement made by the accused to the police officer while they were both seated alone in the cruiser. The statement was admitted without a voir dire. The accused was found guilty at trial under both counts and his appeal to the Court of Appeal was unsuccessful. With leave, the appellant then appealed to this Court.
Held: The appeal should be allowed, the conviction quashed and a new trial ordered.
The proposition could not be accepted that if a trial judge directs himself to the question of the voluntariness of a statement and is satisfied on the whole of the evidence of the guilt of the accused, there is no need for a voir dire. Nor could it be accepted that, in the case at bar, the accused “volunteered the statement”. The onus at all times remains with the prosecution to establish that any statement by an accused offered in evidence against him is voluntary in the fullest sense of the word, and that onus was not discharged here.
The further submission that the evidence as to the oral statement having been received without any objection by counsel for the accused, this silence amounted to an admission that the statement was voluntary, was not well founded. While it might be accepted in a proper case that counsel for an accused may well waive the holding of a voir dire, there is a considerable difference between an expressed waiver surrounded by all the precautions indicating that the question has been examined in depth and mere silence on counsel’s part. The heavy onus resting on the Crown certainly cannot be displaced in such an informal fashion.
On the question of miscarriage of justice, the statement that the accused was at the scene, albeit only to help the complainant, was of major importance. The admission of the statement without a voir dire was a fundamental error which may have affected the outcome of the trial, and, accordingly, contrary to the opinion of the Court of Appeal, the provisions of s. 613(1)(b)(iii) of the Criminal Code had no application.
Sankey v. The King, [1927] S.C.R. 436; Piché v. The Queen, [1971] S.C.R. 23; John v. The Queen, [1971] S.C.R. 781; R. v. Gauthier (1975), 27 C.C.C. (2d) 14; R. v. Spencer (1973), 16 C.C.C. (2d) 29; R. v. Sweezey (1974), 20 C.C.C. (2d) 400; R. v. Rushton (1974), 20 C.C.C. (2d) 297; Colpitis v. The Queen, [1965] S.C.R. 739, referred to.
[Page 364]
APPEAL from a judgment of the Court of Appeal for Manitoba, dismissing an appeal by the accused from his conviction on charges of indecent assault and assault causing bodily harm. Appeal allowed.
G.G. Brodsky, for the appellant.
J.G. Dangerfield, for the respondent.
The judgment of the Court was delivered by
DE GRANDPRÉ J.—Appellant was charged with two counts arising out of the same incident, one of indecent assault and one of assault causing bodily harm. Tried by a judge without a jury, he was found guilty under both counts and sentenced to five years imprisonment. His appeal to the Court of Appeal for Manitoba was unsuccessful. By order of this Court, he was granted leave on the following questions of law:
1. Was the learned trial judge wrong in law in admitting the evidence of Police Constable Llewellyn Fisher with respect to an oral statement made by the Appellant when in custody, when no voir dire was held concerning the admissibility of such statement and no ruling was made as to the voluntariness of such statement?
2. Did the Court of Appeal for Manitoba err in dismissing the Appeal of the Appellant by applying the provisions of Section 613(1)(b)(iii) of the Criminal Code?
The facts established by the Crown witnesses are simple and uncontradicted, no evidence having been tendered by the defence.
In the early morning hours of August 16, 1972, the complainant, Mrs. Olive Genaille and her common-law husband, John Peters, were walking on Main Street, in Winnipeg, accompanied by Peters’ dog. As they approached the Occidental Hotel, Peters went into the restaurant to get a cup of coffee. Mrs. Genaille remained outside with the dog. The dog got loose and went into a parking lot on the south side of the hotel. Mrs. Genaille followed the dog, and, as she moved toward the back of the lot she was grabbed from behind and thrown to the ground. Her attacker then kicked
[Page 365]
her in the face and stomach and tried to pull her slacks down.
About this time, Peters became concerned about the complainant and the dog and sent Douglas Michelle, a young boy employed in the restaurant, into the street to look for her. When Michelle returned, both he and Peters ran into the street and to the parking lot. Peters’ attention was attracted by the dog and someone crying. He saw a man standing over Mrs. Genaille with his hand up as if to strike her. When Peters shouted at him, the man ran down the lane. Both Peters and Michelle pursued him to a parking lot behind a building in the next block occupied by an organization known as the “Main Street Project”. There Peters lost sight of the man he was pursuing, but did subsequently see a man he was sure was the same man, near a truck. This man, later identified as appellant, was removed with some difficulty to the “Main Street Project” building and police were summoned.
When Constables Fisher and Melvin arrived, they spoke first to Mrs. Genaille. During this conversation she pointed to appellant who was seated in plain view some 15 feet away, and stated that he was her attacker. As a result, Constables Fisher and Melvin took appellant into the street and there charged and cautioned him and challenged him with the information they had received from Mrs. Genaille. Appellant denied being in the area and denied being with any woman. At this point he was placed in the cruiser car and Constable Fisher sat with him while Constable Melvin arranged for the other people involved to be driven to the Public Safety Building.
While in the cruiser car, Constable Fisher again asked appellant about his connection with the incident. Appellant then said he had been helping the woman. This part of the evidence is the relevant one for the purpose of this appeal and I will return to it shortly.
[Page 366]
Appellant was removed to the Public Safety Building where he was seen by Detectives Hutcheon and Law. Under charge and caution and after the circumstances had been given him again, appellant told Hutcheon and Law that he had not been in the area and had not been involved with any woman.
As pointed out by the trial judge, the only true issue was that of identity. I have already underlined that, as part of its case, the Crown offered the evidence of an oral statement made by the accused to police officer Fisher when both were seated alone in the cruiser car for three or four minutes. Fisher testified:
Mr. Powell was asked again about his presence, his connection with the incident and at that time he informed me he had been helping the woman, Mrs. Genaille, chasing away another woman.
Fisher then indicated that Powell might have stated that he was chasing someone away. I do not attach any importance to the fact that the statement is not as clear as it could be. If admissible, it would, in my view, support the conclusion of the trial judge.
Was the statement admissible without a voir dire? It must first be remembered that the conversation reported in the above quotation took place in a context. When the police officers first made the accused aware of the purpose of their investigation, they were met with a flat denial that he had been in the vicinity of the hotel. Again, a few minutes later, upon being charged and cautioned by the police officers, he denied involvement. It is only when Constable Melvin was busy attending to some other duties that the impugned conversation took place. Later on, that same night, when questioned by detectives, the accused twice repeated having no knowledge of the occurrence.
It is conceded by the Crown that in principle before a statement of any kind can be admitted in evidence against a person accused, it must be shown by the prosecution to the satisfaction of the trial judge to have been freely and voluntarily made by that accused person. This principle, of
[Page 367]
course, has been repeatedly stated by this Court, particularly in Sankey v. The King; Piché v. The Queen; John v. The Queen, and R. v. Gauthier, a judgment of June 26, 1975, still unreported.
But adds counsel for the Crown, the Court of Appeal was right when it concluded (p. 22):
In our view, it would have been preferable for the trial Judge to have conducted a formal voir dire, then ruling on the voluntariness of the statement which placed the accused at the scene of the alleged offence; but it is perfectly plain from his reasons for judgment that he directed himself to that question and considered the statement to be voluntary.
In the course of his reasons, he said:
He volunteered the statement that he tried to help her and then, later on when he is questioned at the Public Safety Building by two sets of detectives, he denies knowing anything again.
On the whole of the evidence, the trial Judge was satisfied beyond a reasonable doubt of the guilt of the accused.
I am unable to accede to the proposition that if a trial judge directs himself to the question of the voluntariness of a statement and is satisfied on the whole of the evidence of the guilt of the accused, there is no need for a voir dire. Nor am I ready to accept that, in the case at bar, the accused “volunteered the statement”. The fact that Powell, prior to making the impugned statement to Constable Fisher, had twice denied to the police officers his presence in the vicinity of the Occidental Hotel at the time of the incident and that this denial was repeated to the detectives who subsequently took over the investigation of this case clearly shows that the rule had to be applied without question. The trial judge was therefore wrong in law in admitting the evidence of police officer Fisher with respect to the oral statement quoted above. The onus at all times remains with the prosecution to establish that any statement by an accused offered in evidence against him is voluntary in the fullest sense of the word, and that onus was not discharged here. Accordingly, there is no need for me to examine the following decisions relied upon by
[Page 368]
the Crown: R. v. Spencer; R. v. Sweezey; R. v. Rushton. It is sufficient to note that these cases deal with facts quite different from ours.
The Crown further submits that, the evidence of Constable Fisher having been received without any objection by counsel for the accused, this silence amounts to an admission that the statement was voluntary. Although the point was mentioned by Hall J.A., it was not dealt with in the Court of Appeal. For my part, I do not believe that this submission is well founded. While I might be ready to accept in a proper case that counsel for an accused may well waive the holding of a voir dire, I see a considerable difference between an expressed waiver surrounded by all the precautions indicating that the question has been examined in depth and mere silence on counsel’s part. The heavy onus resting on the Crown certainly cannot be displaced in such an informal fashion.
I now turn to the second question, namely miscarriage of justice. On this aspect, Hall J.A. stated (p. 22).
In our opinion, his failure to conduct a formal voir dire may have been in error, but in the circumstances we would invoke s. 613(1)(b)(iii) of the Code and dismiss the appeal on that ground, being of the opinion that no substantial wrong or miscarriage of justice occurred.
I note that for the second time the learned appeal judge uses the expression “formal voir dire”. I assume that this is a slip of the pen because no voir dire at all was held and, in any event, I cannot see any difference between an informal voir dire and a formal one.
On the conclusion that no substantial wrong occurred in the present instance, I find myself with respect in complete disagreement with the Court of Appeal. The statement that the accused was at the scene, albeit only trying to help Mrs. Genaille,
[Page 369]
was of major importance. The following paragraph taken from the trial judgment makes it clear:
I am faced with two kinds of evidence. Most of it is circumstantial which by itself would not, applying the Rule dealing with circumstantial evidence, lead me irresistably only to one conclusion, one reasonable explanation—that is, that the accused was responsible. But we also have one bit of direct evidence from the accused himself when he places himself at the scene. This removes any doubt that leeds me to the conslusion that he was there and responsible for the assault.
The admission of the statement without a voir dire was a fundamental error which may have affected the outcome of the trial so that the provisions of s. 613 of the Code have no application, Colpitts v. The Queen.
For these reasons, I would allow the appeal, quash the conviction and order a new trial.
Appeal allowed; new trial ordered.
Solicitors for the appellant: Walsh, Micay & Co., Winnipeg.
Solicitor for the respondent: G.E. Pilkey, Winnipeg.
Email this Content