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Supreme Court of Canada

Criminal law—Joint trial—Evidence—Admissibility—Accused not calling evidence—Co‑accused testifying and implicating accused—Admissibility against accused of that evidence.

The two appellants were tried jointly with E on counts of breaking and entering and of being in possession of stolen property. At the close of the case for the prosecution, counsel for the appellants moved for a dismissal on the ground that there was no evidence. The magistrate denied the motion. Thereupon counsel for the appellants moved for acquittal on the ground that there was insufficient evidence and announced that no evidence would be called on behalf of these two appellants. The magistrate reserved decision on this motion, stating that he would deal with it when he had heard all the evidence. The case proceeded. Counsel for the appellants took no further part in the trial except in the argument at the close of the case. E gave evidence tending to exonerate himself, but which im-

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plicated the appellants. He was acquitted on the ground that his explanation had raised a reasonable doubt. The magistrate ruled that E’s evidence implicating the appellants was not receivable as against them as they had elected to call no evidence, and he acquitted them. On an appeal by the Crown, the Court of Appeal ordered a new trial. The accused appealed to this Court.

Held: The appeal should be dismissed.

Per Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.: The situation at the close of the case for the prosecution was that there was ample evidence upon which the magistrate could have convicted all. three accused. In such a situation, where two or more accused are jointly indicted, the case is not concluded until all the evidence is in. All the testimony heard throughout the trial is evidence for or against each accused. R. v. MacDonald (1962), 38 C.R. 104, was wrongly decided.

Per Laskin J.: A joint trial, once properly in course, is not terminable by any one of the accused at the close of the Crown’s case in chief when he thinks it to be to his advantage not to run the risk of having damaging testimony given by his co-accused. If any co-accused gives evidence, it takes effect under the tests ordinarily applicable to the evidence of a witness. There is no rule of its legal inadmissibility against an accused who has himself decided not to put in a defence. The fact that he closes his case after the Crown’s evidence in chief does not mean that he can thereby convert a joint trial into a trial of himself alone. A co-accused may not limit the effect of relevant and admissible evidence which his co-accused volunteers as a witness in making his defence.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], ordering a new trial on charges of breaking and entering and unlawful possession of stolen goods. Appeal dismissed.

J M. Poyner, for the appellants.

W.G. Burke-Robertson, Q.C., for the respondent.

[Page 262]

The judgment of Fauteux C.J. and of Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ. was delivered by

HALL J.—This is an appeal from a judgment of the Court of Appeal for British Columbia1 whereby the acquittal of the appellants who were tried jointly with one Ellsworth by Magistrate Bewley in Vancouver on counts of breaking and entering and of being in possession of stolen property, knowing that the same had been stolen, was set aside and a new trial ordered.

The evidence adduced by the Crown showed that sometime after 10:00 p.m. on October 10, 1968, and prior to 1:00 a.m., October 11, 1968, the premises of Ornamental Bronze Company Limited in Vancouver had been broken into and entered and a quantity of bronze ingots, tools and an adding machine had been stolen from the premises. At approximately 1:30 a.m. on October 11th police officers on patrol noticed a motor vehicle proceeding along a street in Vancouver with its lights out. The rear end of the vehicle appeared to be heavily weighted down. The officers stopped the vehicle which was being driven by Ellsworth. The appellants were passengers in the vehicle, both sitting in the front seat and to the right of Ellsworth. An adding machine was found on the back seat of the vehicle and a tool chest, some tools and a quantity of bronze ingots were found in the trunk. These were identified as the property which had been stolen from the Ornamental Bronze Company Limited premises after 10:00 p.m. the preceding evening. The appellants offered no explanation when found with Ellsworth in possession of the stolen property.

The trial proceeded against the three accused jointly. At the close of the case for the prosecution counsel for the appellants moved for a dismissal of the charges and for acquittal of the appellants on the ground that there was no evidence before the Court upon which the two appellants could be convicted. The learned magistrate denied the motion. Thereupon counsel for the appellants moved for acquittal on the ground

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that there was insufficient evidence on which the appellants could be convicted and announced to the Court that no evidence would be called on behalf of these two appellants. The learned magistrate reserved decision on this motion, stating he would deal with it when he had heard all the evidence. The case proceeded. Counsel for the appellants took no further part in the trial except in the argument at the close of the case. Ellsworth gave evidence tending to exonerate himself, but which implicated the appellants. The learned magistrate acquitted Ellsworth on the ground that his explanation had raised a reasonable doubt. He ruled that Ellsworth’s evidence implicating the appellants was not receivable as against the appellants who had earlier elected to call no evidence, and he acquitted the appellants on the grounds that the Crown had not led sufficient evidence, excluding that of Ellsworth, on which guilt could be established beyond a reasonable doubt. He considered himself bound by the judgment of Schultz Co. Ct.J. in Regina v. MacDonald et al.[2].

The appeal from the order for a new trial cannot succeed. Regina v. MacDonald was wrongly decided. Here the situation at the close of the case for the prosecution was that there was ample evidence upon which the learned magistrate could have convicted all three accused. The circumstances given in evidence of the three accused being in possession of the stolen property were such that some explanation by the appellants was called for. Ellsworth offered an explanation. The appellants said nothing. The vehicle they were in was loaded with stolen property, the adding machine being in plain view on the rear seat. Any ruling by the magistrate that there was no evidence before him upon which he might convict would have been erroneous in law. Counsel for the appellants accepts this in his submission. This being so there could be no basis for a directed verdict of acquittal at that stage of the trial.

The appellants relied on the case of Rex v. Power[3], but the case is of no assistance to them. Darling J. who spoke for the Court in Power,

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referring to that case in R. v. Hogan[4], said at p. 183: “I did not say that whenever a defendant submitted that there was no case and took no further part in the trial the judge must withdraw the case from the jury.” The appellants also relied on Regina v. Abbott[5], but that case has no application to the present appeal. In Abbott there was at the close of the case for the prosecution no evidence upon which Abbott, one of two co-accused charged with forgery, could be convicted, and, in fact, the evidence for the prosecution negatived his participation in the crime. The trial judge on an application to withdraw the case from the jury for want of any evidence implicating Abbott refused to do so. The trial proceeded and the co-accused gave evidence implicating Abbott. The jury convicted. The Court of Criminal Appeal set aside Abbott’s conviction. That is a different situation from the present one. Here there was at the close of the case for the prosecution evidence upon which the learned magistrate could have convicted. In such a situation, where two or more accused are jointly indicted, the case is not concluded until all the evidence is in. All the testimony heard throughout the trial is evidence for or against each accused.

The appeal should accordingly be dismissed.

LASKIN J.—I agree with my brother Hall that the appeal fails. The principle invoked by the appellants is that whether an accused be tried alone or jointly with others, he has the same right in the latter case as in the former, once he elects not to put in a defence, to have his guilt or innocence determined on the sufficiency of the Crown’s case against him in chief, and he may therefore insist that the trier of fact dispose of the charge against him without regard to any implicating evidence subsequently given by a co-accused.

[Page 265]

The principle is misconceived in respect of a joint trial, especially where, as here, no question is in issue as to the propriety of the joinder. Section 4(1) of the Canada Evidence Act declares that an accused person is a competent witness whether charged solely or jointly with any other witness. A joint trial, once properly in course, is not terminable by any one of the accused at the close of the Crown’s case in chief when he thinks it to be to his advantage not to run the risk of having damaging testimony given by his co-accused. On the contrary, if any co-accused gives evidence, it takes effect under the tests ordinarily applicable to the evidence of a witness. There is no rule of its legal inadmissibility against an accused who has himself decided not to put in a defence.

The fact that he closes his case after the Crown’s evidence in chief does not mean that he can thereby convert a joint trial into a trial of himself alone. This view, adverse to the appellants, goes to the very considerations that make a joint trial proper. If proper, it must run its course as to all who are involved in it, so far as concerns the issues and the evidence touching any of the co-accused, each of whom is, by his choice, a competent witness in the joint trial.

Although the Crown cannot compel an accused to testify at his trial, this does not mean that a co-accused may limit the effect of relevant and admissible evidence which that accused volunteers as a witness in making his defence.

Appeal dismissed.

Solicitors for the appellants: Maczko, Poyner & Gibbons, Vancouver.

Solicitor for the respondent: G.L. Murray, Vancouver.

 



[1] [1970] 2 C.C.C. 119, 69 W.W.R. 742, 9 C.R.N.S. 67.

[2] (1962), 38 C.R. 104, 40 W.W.R. 92.

[3] (1919), 14 Cr. App. R. 17, [1919] 1 K.B. 572.

[4] (1922), 16 Cr. App. R. 182.

[5] [1955] 2 Q.B. 497, [1955] 2 AU. E.R. 899, 39 Cr. App. R. 141.

 

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