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Criminal law — Murder — Motive not proven as part of Crown's case nor absence of motive proven by defence — Whether trial judge erred in failing to define "motive" and in failing to direct jury as to that concept — No error on part of trial judge in circumstances of case.

The appellant Lewis and one Santa Singh Tatlay were jointly charged with the murder of Parmjeet K. Sidhu, Tatlay's daughter, and, under a separate count, with the murder of Gurmail Singh Sidhu, her husband. The instrument which caused the deaths was an electric kettle rigged with dynamite in such a manner as to explode when plugged into an electric outlet. The kettle was sent to the couple by mail. It exploded with tragic results.

After a two-week trial before judge and jury, the two accused were found guilty. The present appeal was brought from a judgment of the Court of Appeal for British Columbia, dismissing an appeal by Lewis against conviction. The sole question upon which leave to appeal was granted by this Court, was whether the trial judge erred in failing to define "motive", and in failing to direct the jury as to that concept having regard to the fact that, relative to the appellant, the case for the Crown was totally devoid of such evidence.

The relevant facts of the case are summarized in the reasons for judgment at pp. 824-828.

Held: The appeal should be dismissed.

Accepting the term "motive" in a criminal law sense as meaning "ulterior intention", it is possible, upon the authorities, to formulate the following propositions: (1) As evidence, motive is always relevant and hence evi­dence of motive is admissible. (2) Motive is no part of the crime and is legally irrelevant to criminal responsi­bility. It is not an essential element of the prosecution's case as a matter of law. (3) Proved absence of motive is always an important fact in favour of the accused and

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ordinarily worthy of note in a charge to the jury. (4) Conversely, proved presence of motive may be an impor­tant factual ingredient in the Crown's case, notably on the issues of identity and intention, when the evidence is purely circumstantial. (5) Motive is therefore always a question of fact and evidence and the necessity of referring to motive in the charge to the jury falls within the general duty of the trial judge "to not only outline the theories of the prosecution and defence but to give the jury matters of evidence essential in arriving at a just conclusion." (6) Each case will turn on its own unique set of circumstances. The issue of motive is always a matter of degree.

Applying the foregoing propositions to the present case, motive was not proven as part of the Crown's case, nor was absence of motive proven by the defence. There was, therefore, no clear obligation in law to charge on motive. Whether or not to charge became, therefore, a matter of judgment for the trial judge and his judgment should not be lightly reversed.

Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively: per Alverstone L.C.J. in R. v. Stoddart (1909), 2 Cr. App. R. 217 at p. 246. Counsel at trial did not ask the judge to instruct on motive, and the judge obviously felt that such instruction was not called for, in the light of the entire trial.

The necessity of charging a jury on motive may be looked upon as a continuum, at one end of which are cases where the evidence as to identity of the murderer is purely circumstantial and proof of motive on the part of the Crown so essential that reference must be made to motive in charging the jury. At the other end of the continuum, and requiring a charge on motive, is the case where there is proved absence of motive and this may become of great significance as a matter in favour of the accused. Between these two end points in the continuum there are cases where the necessity to charge on motive depends upon the course of the trial and the nature and probative value of the evidence adduced. In these cases, a substantial discretion must be left to the trial judge.

In the present case any instruction on motive would have had to make clear that there was no obligation on the Crown to prove motive. Reference would have to be

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made to the unsatisfactory state of the record as to motive and the inconclusive cross-examination. The case fell squarely in the middle of the continuum. As such, there was no duty in law on the trial judge, in the circumstances of the case, to instruct the jury on motive as a matter of evidence essential in arriving at a just conclusion in reference to Lewis' defence. It was open to the judge to have charged on lack of motive but he could not be faulted for having failed to do so. It was a matter within his discretion.

Overriding all of this, a trial judge has a difficult task to perform in charging a jury at the end of a lengthy trial, and he must be given reasonable latitude in the discharge of that responsibility. It is the charge as a whole that must be considered in determining whether justice has been done. The fundamental point in the instant case was that motive is always a matter of fact and evidence and, therefore, primarily for the judge and jury rather than the appellate tribunal. Views will in all likelihood differ in any case as to the evidence which should be alluded to, and the evidence which may be disregarded, by the trial judge in the preparation of his charge, but unless the result is such as to give rise to a substantial wrong or miscarriage of justice, then the failure to refer to any particular evidence should not be regarded as reversible error entitling the accused to a new trial.

Hyam v. D.P.P., [1975] A.C. 55; R. v. Barbour, [1938] S.C.R. 465; R. v. Imrich (1974), 6 O.R. (2d) 496, aff'd [1978] 1 S.C.R. 622; Pointer v. U.S., 151 U.S. 396, (1894); Markadonis v. R., [1935] S.C.R. 657; R. v. Ellwood (1908), 1 Cr. App. R. 181; Colpitts v. The Queen, [1965] S.C.R. 739; R. v. Malanik (No. 2) (1951), 13 C.R. 160; R. v. Stoddart, supra, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia dismissing the appel­lant's appeal against his conviction for murder. Appeal dismissed.

Kenneth G. Young, for the appellant.

Douglas A. Hogarth, Q.C., for the respondent.

The judgment of the Court was delivered by

DICKSON J.—The appellant Lewis and one Santa Singh Tatlay were jointly charged with the murder of Parmjeet K. Sidhu, Tatlay's daughter, and, under a separate count, with the murder of

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Gurmail Singh Sidhu, her husband. The plot alleged by the Crown was both novel and satanic. The instrument which caused the deaths was an electric kettle rigged with dynamite in such a manner as to explode when plugged into an elec­tric outlet. The kettle was sent to the couple by mail. It exploded with tragic results.

After a two-week trial before judge and jury, the two accused were found guilty. The present appeal is brought from a judgment of the Court of Appeal for British Columbia, dismissing an appeal by Lewis against conviction. The sole question upon which leave to appeal was granted by this Court, is whether the trial judge erred in failing to define "motive", and in failing to direct the jury as to that concept having regard to the fact that, relative to the appellant, the case for the Crown was totally devoid of such evidence.

The Facts

Parmjeet K. Sidhu and Gurmail Sidhu, to whom she had been recently married, were killed in a violent explosion at approximately 10.00 a.m. on October 23, 1972, in a basement suite occupied by them in the City of New Westminster. The mys­tery surrounding their deaths remained unsolved until January 1976, when information obtained by the police resulted in the arrest of Lewis, and subsequently, the arrest of his co-accused, Tatlay.

A cardboard box indicating that it had con­tained a "Sunbeam K22" electric kettle was found at the scene of the explosion. The debris contained metal fragments with nitrate residue. A nitrate based explosive called "forcite" was used at the Craigmont mine near Merritt, British Columbia, where both Tatlay and Lewis were employed. In common with most other mine employees, both had ready access to such explosives. Lewis was employed at the mine as, inter alia, a "blaster" and possessed a "blasting certificate". About forty per cent of the mine employees had blasting certificates.

On October 24, 1972, on the floor of the bed-room closet of the suite a brown paper wrapping

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was located bearing the address of the two deceased, a return address in Kamloops, British Columbia, (which turned out to be fictitious) and the word "Fragile" printed three times. The hand-writing was identified as that of Lewis. The postal inscription indicated that the parcel had been sent in the mail from Kamloops on October 19, 1972. The parcel was delivered by a postal courier on October 23, 1972.

At all material times, Tatlay and Lewis were residents of Merritt, some sixty miles from Kamloops. Parmjeet had lived with her father, Santa Tatlay, in Merritt until April 1972. At that point, having just turned eighteen, she went with Gur­mail to Alberta, where parental consent was not required, and there married him. Some time in the late spring or summer of 1972, Tatlay approached James A. Mountain and asked for his assistance in finding someone to kill Gurmail because Tatlay's daughter had run away with Gurmail and Tatlay did not approve. Mountain refused. During the same period, Tatlay approached William J. Todd, expressing concern that his daughter had married a "commoner" and disgraced the family. He said that the commoner would have to die and offered Todd $2,000 to kill Gurmail. Todd also refused. There was no evidence at trial to indicate that Lewis was aware of Tatlay's family problems or of Tatlay's approaches to Mountain and Todd.

The case for the Crown, as it related to Lewis, turned largely upon the testimony of one Brabant, a chronic alcoholic and petty criminal of some standing. Lewis and Brabant were friends They had known each other for about eight years. They lived near each other in Merritt, and had made trips together to other parts of Canada.

On October 17, 1972, Lewis and Brabant went to Kamloops, Brabant wishing to purchase a pair of reading glasses, and Lewis "to buy something, a present or something." In Kamloops the two men went to a store, separated, and met again at the cashier's counter. On the counter in front of Lewis was a box similar in size to the one found in Parmjeet's suite following her death. The lid was

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open and according to Brabant the box contained a "round" metal object which was "kind of shiny, shiny colour ... chrome or nickel." Two days later, on October 19, 1972, Lewis again invited Brabant to accompany him to Kamloops. Lewis said that he had to "mail a parcel". Resting in the back seat of the car during the trip was a parcel similar in size to the box containing the purchase made by Lewis on October 17. The parcel was enclosed in brown paper of a kind similar to the wrapper found in the New Westminster suite after the explosion.

Lewis and Brabant drank beer on the way to Kamloops and arrived there before noon. Lewis parked the car close by the local post office. According to Brabant, he told Brabant that he had to get an address out of the 'phone book. Lewis left the car and went into a nearby telephone booth where, observed by Brabant, he examined the tele­phone book and wrote something down. Shortly thereafter Lewis returned to the car and, in the presence of Brabant, took the parcel out of the back seat and placed it on his lap. He then either wrote something on the parcel or wrote something on a piece of paper using the parcel for support. Lewis then took the parcel from the car and walked with it to the post office. Upon his return, he said "everything's set, let's go." During the balance of the day the two men drank and, accord­ing to Lewis, bought machinery parts. In his tes­timony before the jury, it might be said, Lewis acknowledged and accepted substantially the sequence of events on October 17 and October 19 recounted by Brabant.

During the drive back to Merritt on October 19, according to Brabant, Lewis said to him "Art, you listen to the radio in the morning ... you're going to hear something about a boom or a blast or whatever it is." Brabant was admittedly "drunk" at the time. He did, however, listen to the radio as suggested and a couple of days later heard of the explosion in New Westminster. Brabant "wrote down the date I had been in Kamloops and what I

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had done in Kamloops ... on a piece of receipt or invoice or paper I got from—from the place I got the part from." The reason for his concern was clearly expressed in these words:

In case something turned up and I was there when the thing was bought and I was there when the thing was mailed so I figured I was going to be in hot soup later with that so I marked it down to make sure I remember what I did.

Lewis testified in his own defence. He conceded that he had gone to Kamloops with Brabant on October 17, but said he bought an electric percola­tor as an anniversary present to his wife, their wedding anniversary being October 1, and her birthday November 4. As a favour to Tatlay, whom he knew slightly, he had agreed to mail, from Kamloops, a previously wrapped parcel, the contents of which were described to him simply as a gift. He admitted placing on the parcel all of the writing that appeared there, but he did so, he said, at the request of Tatlay who wrote little or no English. Lewis denied that on the second return journey from Kamloops to Merritt he had said anything to Brabant about a boom or blast.

Lewis swore that he became aware of the New Westminster occurrence through the local newspa­per. Concerned by the similarity of the names reported to those which he had only shortly before written on the parcel which he had mailed, he went to Brabant for advice. The advice, he said, was not to go to the police for, never having been involved with the police, he would not "know what to say to them." If he went to the authorities "the East Indians will get you for sure," was Brabant's com­ment. In short, said Lewis, he was advised "to stay away from the police and mind your own business and keep quiet."

Later, according to Lewis' evidence, he approached Tatlay underground at the mine, and said "What kind of a mess have you gotten me into? ... I am going to the police." Tatlay, accord­ing to Lewis, replied "If you go to the police I will get you, I will get your wife, and I will get your

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kids and if I can't do it myself, I will hire it done or I will get it done." Lewis discussed the matter no further with anyone until his arrest more than three years later.

Lewis gave two written statements to the police. In the first statement, Lewis recounted that he had met Tatlay at the mine, Tatlay had asked him to mail a parcel at Kamloops and Tatlay had given Lewis $2 for postage. The statement continued that several days later Lewis heard around the mine that Tatlay's daughter had been killed, but that he did not connect it in his mind with anything that he, Lewis, had done. In the second statement he admitted that, in his previous statement, he had not told the officers everything, adding "after the publicity about the double murder I realized that the package that I mailed must have contained the bomb." He then went on to tell of the threat from Tatlay. Neither statement makes any mention of Brabant or his accom­panying Lewis on both trips to Kamloops.

I have not attempted to traverse all of the evidence adduced during the course of a lengthy trial, nor to make an independent review of the evidence. I have thought it better, in the main, to summarize the facts which counsel deemed salient to the point under consideration, as evidenced by their recital in the lengthy factums filed in this appeal.

The Trial

The case for the Crown as against Tatlay was that he was very seriously affected by his daughter leaving home to marry Gurmail without his consent or approval, and had therefore arranged with Lewis for the conversion of an electric kettle into a bomb and its dispatch by mail from Kamloops. The case against Lewis was that he mailed a package at Kamloops, knowing that it contained the lethal kettle addressed to the two deceased persons. The evidence adduced by the Crown was largely circumstantial.

Lewis' defence was a simple one. He had been an innocent dupe. For his part, Tatlay denied

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everything. In particular, he denied having met Lewis at the time and place alleged by Lewis on October 18, 1972, or at all.

Counsel for Tatlay cross-examined Lewis very closely with respect to the alleged meeting with Tatlay at the mine. Tatlay also called as his wit­ness one Schmidt, an accountant with Craigmont Mines. Schmidt testified that, according to the records of the mine, Lewis did not work on Octo­ber 17, 1972, but had worked on the 12:00 midnight to 8:00 a.m. shift on October 18 and October 19, while Tatlay had worked day shift between 8:00 a.m. and 4:00 p.m. on October 18, 1972. Further evidence as to the layout of the mine and movement of the underground personnel at shift change was such that the jury could reasonably have concluded it to be virtually impossible for Lewis to have met Tatlay at the time and place alleged. Schmidt's evidence left open the possibili­ty of a meeting at about the same time at another place in the general mine area, but this threw doubt on Lewis' version of what had occurred. Tatlay denied that he had ever met Lewis or known him prior to 1976, and Lewis agreed that he had not known Tatlay or his family prior to the parcel incident.

In addressing the jury, the counsel for Lewis accepted that Brabant was not lying, but argued that Brabant was confused as a result of the lapse of time between the explosion and the trial. More particularly, Brabant was in error with respect to the statement by Lewis to the effect that if he were to listen to the radio, he would hear a "boom or blast". Secondly, it was not contested that the parcel mailed by Lewis contained the rigged kettle which caused the deaths.

Lewis adduced little or no evidence as to his financial standing. He was cross-examined, however, by Crown counsel with results which could only be characterized, at the highest, as inconclu­sive. The Crown called no witnesses for the purpose of establishing motive on the part of Lewis.

Lewis called several witnesses who spoke as to his good character and his general reputation within the community.

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The trial judge dealt fairly and adequately with the theory of the Crown and the theory of the defence. The Crown concedes that the judge did not deal specifically with the question of motive in so far as Lewis was concerned, but he did deal with the character evidence that had been adduced on Lewis' behalf.

At the close of the judge's charge, counsel for Tatlay raised, among other matters, the question of motive from Tatlay's point of view. Counsel for Lewis raised three objections, to which I will later refer, but he made no reference to motive.

During their deliberations the jury asked to have read back (i) the evidence of Brabant with regard to whether or not Lewis had written something down while in the telephone booth, and (ii) the cross-examination of Crown counsel dealing with the financial situation of Lewis. Defence counsel did not request that the judge at this time charge the jury on the concept of motive.

At the end of the day, the critical question in Lewis' case was whether or not, at the time he mailed the package, he knew that it contained a bomb.

Appeal

On appeal, a number of grounds were relied upon. All were rejected by a unanimous Court of Appeal. With respect to motive, the Court had this to say:

Counsel for Lewis also submitted the charge was deficient in failing to include a definition of "motive" and a direction regarding the absence of proof of motive on Lewis's part. There was some evidence, inconclusive, that Lewis's objective was money. In any event, the jury, as intelligent people, could not fail to consider the matter. That they were concerned is evidenced from the fact that they interrupted their deliberations to return to the Court room and have read to them the cross-exami­nation of Lewis dealing with his financial situation. This was done in a manner satisfactory to counsel. The defence of Lewis was on the whole adequately and fairly put before the jury by the Judge.

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Motive in Law

In ordinary parlance, the words "intent" and "motive" are frequently used interchangeably, but in the criminal law they are distinct. In most criminal trials, the mental element, the mens rea with which the court is concerned, relates to "intent", i.e. the exercise of a free will to use particular means to produce a particular result, rather than with "motive", i.e. that which precedes and induces the exercise of the will. The mental element of a crime ordinarily involves no reference to motive: 11 Hals. (4th ed., 1976), para. 11.

Difficulty arises, however, from the vagueness in law of the notion of "motive". There would appear to be substantial agreement amongst textwriters that there are two possible meanings to be ascribed to the term. Glanville Williams in his Criminal Law, The General Part (2nd ed., 1961) distin­guishes between these meanings:

(1) It sometimes refers to the emotion prompting an act, e.g., "D killed P, his wife's lover, from a motive of jealousy." (2) It sometimes means a kind of intention, e.g., "D killed P with the motive (intention, desire) of stopping him from paying attentions to D's wife." (p. 48)

It is this second sense, according to Williams, which is employed in criminal law:

Motive is ulterior intention—the intention with which an international act is done (or, more clearly, the inten­tion with which an intentional consequence is brought about). Intention, when distinguished from motive, relates to the means, motive to the end. (p, 48)

Smith and Hogan in their Criminal Law (4th ed., 1978) put the matter in slightly sharper per­spective. Dealing with the first of the above meanings:

If D causes an actus reus with mens rea, he is guilty of the crime and it is entirely irrelevant to his guilt that he had a good motive. The mother who kills her imbecile and suffering child out of motives of compassion is just as guilty of murder as is the man who kills for gain. (p. 63)

The authors discuss also the species of intention implicit in the second meaning above:

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For example, D intends to (a) put poison in his uncle's tea, (b) to cause his uncle's death and (c) to inherit his money. We would normally say that (c) is his motive. Applying our test of "desired consequence" (c) is cer­tainly also intended. The reason why it is considered merely a motive is that it is a consequence ulterior to the mens rea and the actus reus; it is no part of the crime. If this criterion as to the nature of motive be adopted then it follows that motive, by definition, is irrelevant to criminal responsibility—that is, a man may be Iawfully convicted of a crime whatever his motive may be, or even if he had no motive. (pp. 63-4)

Both of these texts were drawn upon in a brief discussion of motive by Lord Hailsham in Hyam v. D.P.P.[1] at pp. 73-4. The appellant in that case had had a relationship with a man who became engaged to another woman B. The appellant had gone to B's house at night and set fire to the house. While B escaped, her two daughters did not and the two died of suffocation. The appellant's defence was that she had only intended to frighten B. If one were to use the first sense of motive as emotion, the appellant's admitted motive was jeal­ousy of B; if the second sense of motive as ulterior intention, her motive was to frighten B so that she would leave the neighbourhood. In the former sense, states Lord Hailsham, "it is the emotion which gives rise to the intention and it is the latter, and not the former, which converts an act us reus into a criminal act."

It is, however, important to realise that in the second sense too motive, which in that sense is to be equated with the ultimate "end" of a course of action, often described as its "purpose" or "object" although "a kind of intention", is not co-extensive with intention, which embraces, in addition to the end, all the necessary consequences of an action including the means to the end and any consequences intended along with the end. (p. 73)

In the case at bar, the parties have employed the notion of "motive" in the second of Williams' senses.

Accepting the term "motive" in a criminal law sense as meaning "ulterior intention", it is possible,

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I think, upon the authorities, to formulate a number of propositions.

(1) As evidence, motive is always relevant and hence evidence of motive is admissible.

This statement is drawn from Smith and Hogan where the authors state:

This means simply that, if the prosecution can prove that D had a motive for committing the crime, they may do so since the existence of a motive makes it more likely that D in fact did commit it. Men do not usually act without a motive. (p. 64)

Support for this proposition can also be drawn from the following: 11 Hals. (4th ed., 1976), para. 365; Howard, Criminal Law (1977), p. 364; Wil­liams, p. 49, note 4; McWilliams, Canadian Criminal Evidence (1974), pp. 299-300, 332; Cross on Evidence (4th ed., 1974), pp. 34-5; 1 Wigmore on Evidence, paras. 118, 392; Phipson on Evidence (12th ed., 1976), para. 382; Best on Evidence (12th ed., 1922), para. 453.

While evidence of motive is always relevant on the issue of intent or identity, motive must be evidenced by human acts and there are limits to the extent to which such acts may be introduced as motive: see R. v. Barbour[2].

(2) Motive is no part of the crime and is legally irrele­vant to criminal responsibility. It is not an essential element of the prosecution's case as a matter of law.

In language reminiscent of Smith and Hogan, Schroeder J.A. puts the matter this way in R. v. Imrich[3], at p. 503:

When a defendant is indisputably shown to be the criminal, evidence of motive is immaterial. Motive relates to a consequence ulterior to the mens rea and the actus reus and, adopting this criterion, motive is irrele­vant to criminal responsibility, viz., a man may be lawfully convicted of a crime whatever his motive may be or even if he has no motive. It is, of course, relevant as evidence for if the prosecution can prove that the defendant had a motive for committing the crime it may do so, since the existence of motive makes it more likely that the defendant did in fact commit it ... All matters

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of motive are for the jury and are not to be dealt with as matters of law. Motive is never to be confused with intent and it is wholly inaccurate to say that without motive there can be no intent.

This majority view of the case was upheld upon subsequent appeal to this Court[4]. Wigmore puts it succinctly in para. 118 of his first volume with the heading: "Motive always Relevant, but never Essential." The rationale for this approach is explained in Pointer v. U.S.[5], at pp. 413-4, where Harlan J. approved a passage from the trial judge's charge and then commented upon it:

"The law does not require impossibilities. The law recognizes that the cause of the killing is sometimes so hidden in the mind and breast of the party who killed, that it cannot be fathomed, and as it does not require impossibilities, it does not require the jury to find it. Yet, if they do find it, it simply becomes an item of evidence in the case, which is only evidentiary at best—that is, it is only an item of evidence going to show whether a particular party may have committed an act, and sometimes going to show the characteristics of that act ..."

It is not indispensable to conviction that the particular motive for taking the life of a human being shall be established by proof to the satisfaction of the jury. The absence of evidence suggesting a motive for the commis­sion of the crime charged is a circumstance in favor of the accused, to be given such weight as the jury deems proper; but proof of motive is never indispensable to conviction.

Evidence of motive is merely circumstantial evi­dence like any other circumstantial evidence, which may or may not be of importance depending upon the facts of each case. But motive as a legal concept is not a necessary element of the case to be proved by the prosecution and the prosecution is free to adduce evidence or not. Paradoxically then, although motive is described as "ulterior inten­tion" in the sense of the end of a series of actions, it is only useful in an evidentiary sense as a means

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of proving the anterior intention or the identity of the person who committed the actus reus.

(3) Proved absence of motive is always an important fact in favour of the accused and ordinarily worthy of note in a charge to the jury.

In support of this proposition is the judgment of Davis J. in Markadonis v. R.[6] who, prefacing his remarks with these words:

Moreover, I cannot escape from the view that the charge of the learned trial judge did not present certain aspects of the case in favour of the accused that should have been dealt with and considered.

pointed out the first of those aspects:

Firstly, the absence of any proof of motive. While it is not the motive but the intent which is essential, proof of motive becomes of importance where the evidence as here against the accused is entirely circumstantial. (p. 665)

The comment of Mr. Justice Davis picks up the oft-quoted statement of Channell J. in R. v. Ellwood[7] as to the "great difference between absence of proved motive and proved absence of motive". That statement warrants some explana­tion. Ellwood was convicted of the murder of a mill employee named Wilkinson in the offices of the mill. The accused had been identified by a number of witnesses as having been in the vicinity of the mill office about the time in question. The suggested motive was that the accused thought Wilkinson would have at that time cashed the cheque for the wages of the mill employees and the accused was planning to rob him of that money. The main ground of appeal was that no motive was proved by the prosecution. Channell J. summarily dismissed this point, at p. 182, after stating that "there was here strong evidence" on the case as a whole:

It is complained that no motive was shown. There was not an absence of suggested motive, nor a proved absence of motive. Robbery was suggested. As was pointed out by the learned judge, there is a great difference between absence of proved motive and proved absence of motive.

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In the case of R. v. Imrich, supra, motive and opportunity, on one view, were central to the Crown's case. All the evidence was circumstantial in nature and the Crown's theory as to motive was that the accused was in financial straits and was being pressed by his creditors. As the premises in question were insured, the accused thus set fire to them in order to defraud the insurance company, according to the Crown, the accused having had the exclusive opportunity to do so when he was alone in the house on the afternoon of the fire. In the course of his dissent in the Ontario Court of Appeal, Dubin J.A. said:

In the circumstances of this case, absence of motive would not only have been destructive of the essential averment of an intent to defraud, but also would have removed from the Crown's case a material fact as part of its proof that the accused was the person who set fire to the premises. (pp. 504-5)

Since opportunity alone could not found the case for the prosecution, motive was material in his view.

In this Court, Mr. Justice Ritchie, in rejecting the views of Dubin J.A., emphasized the evidence of exclusive opportunity and its effect on the importance of motive:

In seeking to prove the identity of the culprit in such a case as this, motive is immaterial if the opportunity to set the fire is shown to have been exclusive. In my view, the whole theory of the Crown was that Imrich had the exclusive opportunity to set this fire and on this issue instructions relating to motive cannot be characterized as "matters of evidence essential in arriving at a just conclusion". It seems to me that such an instruction could only have had the effect of leaving the jury with the impression that lack of motive was of importance even where exclusive opportunity was proven. (p. 628)

(4) Conversely, proved presence of motive may be an important factual ingredient in the Crown's case, notably on the issues of the identity and intention, when the evidence is purely circumstantial.

This is, in effect, merely a restatement of Davis J.'s comments in Markadonis. In Barbour at p. 472, Mr. Justice Kerwin in dissent pointed out: "While the Crown is not obliged to adduce evidence

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of motive, the presence or absence of motive may be of very considerable importance." McWil­liams, at pp. 299-300, refers to the opening statement of the Attorney General in Palmer's case (1856) that "if we find strong motives, the more readily shall we be led to believe in the probability of the crime having been committed; but if we find an absence of motive, the probability is the other way."

(5) Motive is therefore always a question of fact and evidence and the necessity of referring to motive in the charge to the jury falls within the general duty of the trial judge "to not only outline the theories of the prosecution and defence but to give the jury matters of evidence essential in arriving at a just conclusion."

The latter portion of this proposition is drawn from the judgment of Mr. Justice Spence in Col­pitts v. The Queen[8], at p. 752, referred to by both Ritchie J. in Imrich at p. 626, and by Dubin J. A. at p. 509, in support of their differing views of that case. I think this latter conflict is instructive—in each case, there will clearly be differences of opin­ion as to whether certain matters of evidence are essential to the case for either party. A goad deal of latitude should be allowed to the judgment of the trial judge as to which matters of evidence are essential or not.

(6) Each case will turn on its own unique set of circum­stances. The issue of motive is always a matter of degree.

The necessity of charging a jury on motive may be looked upon as a continuum, at one end of which are cases where the evidence as to identity of the murderer is purely circumstantial and proof of motive on the part of the Crown so essential that reference must be made to motive in charging the jury. The Crown's case against Tatlay was just such a situation. It was essential to establish motive and the trial judge properly referred to motive in charging the jury in relation to Tatlay. At the other end of the continuum, and requiring a charge on motive, is the case where there is proved

[Page 838]

absence of motive and this may become of great significance as a matter in favour of the accused. Between these two end points in the continuum there are cases where the necessity to charge on motive depends upon the course of the trial and the nature and probative value of the evidence adduced. In these cases, a substantial discretion must be left to the trial judge. In Imrich, for example, the evidence of exclusive opportunity was such that motive receded into the background.

The Present Case

In the light of the foregoing propositions, I examine the case at bar. One of the points to note is that the Crown put forward two alternative theories as to the transaction between Tatlay and Lewis. The dominant theory of the Crown was that Tatlay, enraged at his daughter's defiance, insti­gated Lewis to fashion and mail the kettle-bomb which killed the couple. Alternatively, the Crown suggested that Tatlay or some other person might have made the bomb and that Lewis mailed the parcel, knowing it to contain a bomb. The broad theory related to both Tatlay and Lewis, the narrow theory related only to Lewis. Thus Lewis would stand convicted, as the trial judge pointed out in his charge, if the jury accepted either theory:

Now, if you were satisfied beyond a reasonable doubt that Lewis made this bomb and that Tatlay procured him to do it, that is, enlisted his services to do it, then I say—and I will tell you the law more particularly in a few moments—that you would have evidence upon which you could find—that you are satisfied beyond a reasonable doubt that these men were guilty of murder.

Alternatively, it seems to me that even if you found that Lewis did not fashion the lethal weapon but he was the courier, that is, he is the one who mailed it and that he mailed it with the realization of what he was mailing, again I would say that would be evidence if you are satisfied beyond a reasonable doubt of that fact, to justify finding that he was guilty of murder.

The actus reus of the narrow theory is identified by the Crown as the mailing of the parcel. This

[Page 839]

removes the materiality of motive as to proof of identity and thus narrows the necessary mental element or mens rea to knowledge that the parcel contained a bomb, the requisite specific intent following as a matter of inference.

I turn then to the question whether motive was a matter of evidence essential to the defence of Lewis. At the opening of his address to the jury, Mr. Harris, counsel for Lewis, stated:

The key question is, of course, who did this. I add something extra to what Mr. Braidwood said—why did they do it? Those two questions, as far as I am con­cerned, can't be separated. When you ask who did this, why they did it, why he did it. Those are fundamental questions.

and in the penultimate paragraph of his address he said:

One quick statement comes in at this point, and I think that is motive. Such a diabolical deed must have a motive. Look to Jim Lewis. He has no motive. In this courtroom—he did not know these people. He did not know of the problems in Santa Tatlay's family. He had no motive to kill anyone. He has said here "I got the parcel. I didn't know its contents. I sent it forward. I never intended to kill anyone, never intended anyone to be harmed." The man has no motive at all, and that is a very troublesome aspect of this case. There is no motive there at all. Look at the motive of Santa Tatlay, the tremendous motive of Santa Tatlay.

In the charge by the trial judge, there was no adversion to motive in so many words. The effect of the acceptance of Brabant's evidence is mentioned:

... this [Brabant's] testimony would tend to reflect on the credibility of Lewis and tend to support the Crown's theory that Lewis had more than an innocent knowl­edge. In fact, the Crown says it fairly supports the proposition that he is a principal party to this heinous act—if at least he did not fashion the kettle, he knew what it was and for what purpose it was intended.

At a couple of points, the trial judge intimated quite strongly that Schmidt's testimony was that the two accused "would not have been able to meet on the parking lot if they were changing shifts".

[Page 840]

Again, there is no error in these remarks.

The trial judge covered the character evidence adduced by Lewis:

Briefly a man can always call evidence of his general reputation in the community for the purpose of showing that you should believe him when he testified, or if he has testified, or that he is not, because of his background or character, the type of man who would commit the type of crime of which he is accused.

Although it is true that the word "motive" is not used, the jury was invited to consider whether Lewis was the type of man who would commit the type of crime of which he was accused.

The judge reviewed the address of Lewis' coun­sel, Mr. Harris, to the jury, summarizing the theory of the defence succinctly:

He [Mr. Harris] said that this man [Lewis] was really an innocent dupe, and that he mailed this parcel all right, which ultimately caused the explosion, but that he had nothing to do with the fashioning of this lethal weapon.

The objections of counsel for Lewis to the charge were three in number: (1) the treatment of Brabant's testimony concerning the round, shiny metallic object in the box on the first trip to Kamloops; (2) the reference to the existence of a conversation between Lewis and Brabant subse­quent to the killings in which mention was made of "boom or blast", as "sheer speculation"; and (3) the apparent foreclosure by the trial judge of any opportunity for Lewis and Tatlay to have met at the shift change, based upon Schmidt's testimony. All three objections were rejected by the trial judge. The failure of defence counsel to object to the absence of reference to motive in the judge's charge as to Lewis does not preclude objection being taken before this Court. The objections taken at trial are, however, indicative of the pri­mary concerns of defence counsel, and in the case at bar are of some assistance in assessing the essentiality of reference to absence of motive.

[Page 841]

It is not surprising that counsel for Lewis con­centrated his objections upon the three pieces of evidence to which I have referred. If Lewis did buy a kettle, and not a percolator; if Lewis did mention a "boom or blast" on the second Kamloops trip, and not in a later conversation with Brabant; if it was impossible for Tatlay and Lewis to meet casu­ally at the shift change at the mine, and they must have met otherwise; then Lewis' "innocent dupe" defence would have been left in tatters. Absence of motive, although emphasized in a concluding paragraph of Mr. Harris' submission to the jury, would carry little weight by comparison.

Counsel for Lewis properly emphasized in argu­ment before this Court the crucial nature of the evidence or Brabant, an admitted criminal and alcoholic, and urged that in assessing his credibili­ty and that of Lewis, the absence of proven motive on the part of Lewis should be put in the scale in his favour. This submission at first impression has a certain persuasiveness, but when one reads and re-reads the evidence at trial, in particular the cross-examination of Lewis, the submissions of counsel, and the judge's charge, I do not think that one can properly attribute reversible error to the trial judge in failing to direct the jury as to the concept of motive.

Applying the propositions which I have outlined earlier, it will be seen that motive was not proven as part of the Crown's case, nor was absence of motive proven by the defence. There was, therefore, no clear obligation in law to charge on motive. Whether or not to charge became, therefore, a matter of judgment for the trial judge and his decision should not be lightly reversed. As Coyne J. A. said in R. v. Malanik (No. 2)[9], at p. 164:

The summing-up must not be examined microscopically in a critical spirit to make post facto fault-finding (Rex v. Stoddart (1909), 2 Cr. App. R. 217, approved in Preston v. The King, 7 C.R. 72, [1949] S.C.R. 156 at 162, 93 C.C.C. 81, 1949 Can. Abr. 148) but solely to determine whether the summing-up as a whole in the

[Page 842]

light of all the proceedings was such as to enable the jury to appreciate the case before them and their powers and duty and to afford some reasonable assistance to the exercise and performance of them in the case.

Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively: per Alverstone L.C.J. in R. v. Stoddart[10], at p. 246.

Counsel at trial did not ask the judge to instruct on motive, and the judge obviously felt that such instruction was not called for, in the light of the entire trial. Although the evidence of Brabant was important to the case against Lewis, there was really very little conflict between the evidence of Brabant and that of Lewis. The question was rather one of inference from undisputed facts. Brabant testified to the purchase by Lewis of a round, shiny object on October 17, 1972, con­tained in a box similar in size to that which contained the kettle-bomb. Lewis did not deny the purchase on that date of a round, shiny object contained in such a box. He said that the object was a coffee percolator, and not an electric water kettle. It was left to the jury to decide whether the object was as Lewis stated. In doing so, Lewis' explanation of buying a present midway between anniversary and birthday could be appraised.

It is also important to note that there is no real conflict between the evidence of the two men as to what occurred at the Post Office at the time the parcel was mailed. Lewis explained that he was looking up the address of a machinery company, but he failed to explain why this would be neces­sary when, on his own testimony, he was in Kamloops frequently for the purchase or repair of machinery parts needed on his ranch.

Finally, with respect to the evidence as to "boom or blast", as I read the evidence, Lewis does not deny a conversation between himself and Brabant

[Page 843]

in which the words "boom or blast" were used. His position would seem to be that such a comment was made, or may have been made, not during the journey back to Merritt on October 19, 1972, but at some later date. The trial judge dealt with the "boom or blast" point in the following manner, and I cite his remarks in extenso, having regard to the importance of this part of the charge:

Brabant said that on the way home Lewis said "Art, you listen to the radio in the morning, you will hear about a boom or a blast". Brabant said he listened the next morning but didn't hear anything unusual and he said he listened every morning for the next two or three days and then one morning heard that there had been a blast in New Westminster involving two people, and because of this incident, he looked for receipts from stores in Kamloops from his Kamloops trips because he figured that he might in some way be connected with it, so obviously this situation the Crown had mentioned, caused him to be very apprehensive.

Now, also in cross-examination, Mr. Kaatz queried Mr. Brabant regarding the testimony-regarding his testimony-that when they were returning from Kamloops, Lewis said "Art, listen to the radio tomorrow, you are going to hear that a boom or a blast"'—Brabant reiterated that Lewis had said this, and Mr. Kaatz suggested that perhaps Lewis could have said that he heard—or Lewis had said he heard about a boom or a blast and Mr. Brabant replied yes, but by looking at the transcript I cannot understand, the way that conversa­tion went it would probably be more significant to you. In any event, you will have to determine whether Lewis said that Brabant should listen to the radio in a day or so to hear about a boom or a blast or whether he said simply that he, Lewis, had heard about a boom or a blast. Frankly, in the circumstances the latter suggestion does not seem consistent with the situation—why would Lewis say that he had heard about a boom or a blast? Lewis, of course, cannot recollect making such a statement.

Now, I pause here to point out that in his address, Mr. Harris said he was not calling Mr. Brabant a liar but simply saying that any discrepancy between Lewis and Brabant should be resolved in Mr. Lewis' favour because of Brabant's propensity for liquor, and I suppose the fact that he had a long criminal record, which I

[Page 844]

will deal with shortly. However, he also suggested that this conversation about a boom or a blast took place when Lewis went to speak to Brabant about mailing the parcel. I looked at my notes when Mr. Harris was making that observation, and I also looked at the tran­script, and frankly I find no such conversation at all. In fact, unfortunately, they did not as—Mr. Kaatz did not put to Mr. Brabant in cross-examination, as normally he should have, the fact that Lewis did go to him apparent­ly about this parcel, after he heard about the blast. So far as you are concerned, I tell you right now, there is no evidence from which you can infer that these gentlemen had any conversations about a boom or a blast after Mr. Lewis learned about it, and for you to think there was would be sheer speculation.

In the cross-examination of Lewis the following questions were asked and answers given, but it was never made clear as to where, or at what subse­quent time, Lewis discussed "boom or blast" with Brabant:

Q. And Mr. Brabant indicated you had said something concerning listening to the radio for a boom or a blast?

A. No sir, I never made any statement like that.

Q. At a subsequent time did you discuss a boom or a blast with Mr. Brabant? A. Yes, I did.

The charge continues:

In the course of his cross-examination, Mr. Brabant conceded that he had been a fairly heavy drinker and had been in Essondale, I guess in early 1972 for thirty days with regard to his drinking problem. He conceded too in cross-examination, that he had had a number of convictions since 1936, some involving breaking and entering and theft, and others simple theft, and one or two involving possession of stolen property, and quite a few involving drinking while driving. I pause here to point out that when a person is in the witness stand, he can be cross-examined about any criminal record, and the basis for permitting that type of cross-examination is to give the trier of the facts, the jury, an opportunity to say "Well now, this man appears to have a bad background criminally. Can 1 place any credence on his testimony whatsoever?" A lot will depend on the nature of the crime that he had been convicted of. You might say, having regard to this man's background, the fact

[Page 845]

that he has been convicted of crimes involving moral turpitude, things like that that you will not believe a thing he says—or you may say alternatively, "Well, he has a record but it is not that type of record which would cause me to doubt his veracity". Basically, I do not think that Mr. Harris is saying that this man's record is such that he is completely unreliable. The fact, as I gather, or the approach of Lewis and the Defence—there is only one or two areas where there is any difference of opinion or difference in evidence as to what occurred—that is different so far what occurred any time Brabant was there—that is the question of the parcel and the question of his conversation about the boom or the blast, but I think the nub of the submission in that respect is this: that he obviously had to put it, politely, a propensity for drink. (And apparently for, travelling to and from Kamloops and drinking on the way). I assume it is better as a passenger, rather than a driver. In those circumstances, you should not really place too much reliance or credence or weight on Bra­bant's testimony because he might have been a little far gone on the way back to really recall what Lewis said and in fact, is conjuring up this conversation. However, the Crown points out that when you look at this you have to consider the fact that he did listen to the radio regularly apparently, according to his testimony, and that as soon as he heard about the explosion he immedi­ately became apprehensive and started to find material to justify his own presence in Kamloops and that when Lewis did confront him about the fact that he said, allegedly "Remember that parcel we mailed" and Bra­bant replied, according to Lewis—"The parcel you mailed"—and the Crown says that these are pieces of evidence which strongly indicate that, or should suggest strongly, that this conversation did take place on the way, otherwise why would Brabant be apprehensive—why would Brabant listen to the radio for a boom or a blast—or why should he be so categorical about saying the parcel you mailed, not we mailed?

Now, if you accept Brabant's testimony as he has given it to you here with regard, particularly with regard to the conversation about the boom or a blast, then this testimony would tend to reflect on the credibility of Lewis and tend to support the Crown's theory that Lewis had more than an innocent knowledge. In fact, the Crown says it fairly supports the proposition that he is a principal party to this heinous actif at least he did not fashion the kettle, he knew what it was and for what purpose it was intended.

[Page 846]

It is not readily apparent how a charge on Lewis' motive or lack thereof could have aided in assessing Brabant's credibility on the "boom or blast" issue. In this regard, it is important to recall that, except for denying that he got the return address from the telephone booth, or that he spoke of an explosion, Lewis admitted to virtually all, if not all, of the particulars of the two trips to Kamloops recounted by Brabant. There was no apparent reason for Brabant to lie on any of the points. The defence did not contend that Brabant was lying, only that he was confused. It was open to the jury to find in the cross-examination of Lewis a much greater degree of uncertainty, con­tradiction, and unexplained conduct than in the examination and cross-examination of Brabant.

The evidence of Brabant did not stand alone. There was undisputed evidence of the purchase in Kamloops of a round, shiny object in a box, and the mailing of a box of similar size two days later, addressed in the handwriting of Lewis, repeatedly marked "Fragile", and bearing the address of a Kamloops motel as the return address. There was no explanation as to why Tatlay would select Lewis, a stranger, to mail the lethal parcel, par­ticularly if it were manufactured by some uniden­tified third party. I might note at this point that there was no evidence led to confirm the purchase by Lewis of a coffee percolator. Why go to Kamloops to buy a coffee percolator, rather than purchasing one in Merritt? Why was the parcel not mailed by Tatlay or Lewis at the post office in Merritt, rather than in Kamloops, sixty miles away? These were among the questions put to the jury.

It was for the jury to assess the failure of Lewis to report what had occurred to the proper authori­ties, upon discovery that he had been duped, as he contended, into complicity in a fiendish murder plot. Over three years passed before the facts came to light, and then not as a result of anything done or said by Lewis. It was for the jury also to consider the lack of candor in Lewis' statements to the police, his initial denial of the handwriting, and

[Page 847]

his failure to mention Brabant, the only person who could incriminate him. No mention was made of any subsequent conversation with Tatlay in the first statement yet, in the second statement, Lewis relied on the alleged threat by Tatlay to explain his failure to report to the police.

While the absence of motive would have weighed in the balance of credibility between Lewis and Brabant, and between Lewis and Tatlay, one cannot say that absence of motive could, of itself, have been destructive of any essen­tial element of the Crown's case.

Any instruction on motive would have had to make clear that there was no obligation on the Crown to prove motive. Reference would have to be made to the unsatisfactory state of the record as to motive and the inconclusive cross-examination. Cast in terms of the earlier discussion of motive in criminal law, the case at bar falls squarely in the middle of the continuum. As such, there was no duty in law on the trial judge, in the circumstances of the case, to instruct the jury on motive as a matter of evidence essential in arriving at a just conclusion in reference to Lewis' defence. It was open to the judge to have charged on lack of motive but, in my opinion, he cannot be faulted for having failed to do so. It was a matter within his discretion.

There is something overriding all of this. A trial judge has a difficult task to perform in charging a jury at the end of. a lengthy trial, and he must be given reasonable latitude in the discharge of that responsibility. It is the charge as a whole that must be considered in determining whether justice has been done. The fundamental point in the instant case is that motive is always a matter of fact and evidence and, therefore, primarily for the judge and jury rather than the appellate tribunal. Views will in all likelihood differ in any case as to the evidence which should be alluded to, and the evi­dence which may be disregarded, by the trial judge in the preparation of his charge, but unless the result is such as to give rise to a substantial wrong

[Page 848]

or miscarriage of justice, then the failure to refer to any particular evidence should not, in my view, be regarded as reversible error entitling the accused to a new trial.

In the result, I am unable to find error on the part of the trial judge, and I therefore reach the same conclusion as the Court of Appeal of British Columbia.

I would, accordingly, dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Raibmon, Young, Campbell & Young, Vancouver.

Solicitors for the respondent: Hogarth, Oliver, Hughes & Drabik, New Westminster,

 



[1] [1975) A.C. 55 (H.L.).

[2] [1938] S.C.R. 465.

[3] (1974), 6 O.R. (2d) 496.

[4] [1978] 1 S.C.R. 622.

[5] 151 U.S. 396, (1894).

[6] [1935] S.C.R. 657.

[7] (1908), 1 Cr, App. R. 181 (C.C.A.).

[8] [1965] S.C.R. 739.

[9] (1951), 13 C.R. 160 (Man. C.A.).

[10] (1909), 2 Cr. App. R. 217.

 

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