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Supreme Court of Canada

Criminal law—Jury trial—Non-capital murder—Murder committed by accomplice during robbery—Prosecution of common purpose—Charge to jury—Criminal Code, 1953-54 (Can.), c. 51, ss. 202, 21(2).

The respondent and a companion, who that day had purchased a hunting knife in the presence of the respondent, drove a woman to a lonely spot with the intention to rob her. The companion and the woman got out of the car and the respondent turned the car around and stopped it but left the engine running. Some distance from the car, the companion inflicted multiple stab wounds on the woman, from which she died. Her purse which was found nearby contained no money. The respondent and his companion were charged with non-capital murder and were granted separate trials. The respondent was convicted by a jury. The Court of Appeal quashed the conviction and ordered a new trial. The Crown was granted leave to appeal to this Court on the question as to whether the Court of Appeal erred in holding that the trial judge was wrong in failing to direct the jury that before they could find the respondent guilty of non-capital murder they must find that he knew or ought to have known that the death of the victim would be a probable consequence of carrying out the robbery. The submission of the Crown was that the respondent was guilty of non-capital murder by virtue of the combined effect of s. 202 and s. 21 of the Criminal Code.

Held: The appeal should be allowed and the conviction restored.

The trial judge rightly interpreted and applied ss. 202 and 21(2) of the Code and his charge to

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the jury was correct in law. On the true construction of these two sections as applied to the circumstances of this case it was necessary to support a verdict of guilty against the respondent that the Crown should establish (i) that it was in fact a probable consequence of the prosecution of the common purpose of the respondent and his companion to rob the victim that the companion for the purpose of facilitating the commission of the robbery would intentionally cause bodily harm to the victim; (ii) that it was kown or ought to have been known to the respondent that such consequence was probable and (iii) that in fact the victim’s death ensued from the bodily harm. There is nothing in the words of s. 21(2) to support the view that foresight of the victim’s death as a probable consequence of the robbery should have to be found to exist before the respondent could be convicted of such murder by the application of the section. The jury was accurately instructed on this vital issue and there was ample evidence to support their verdict.

The other grounds of appeal put forward by counsel for the respondent in the course of his oral argument should be rejected.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], quashing the conviction of the respondent on a charge of non-capital murder. Appeal allowed and conviction restored.

T.G. Bowen-Colthurst, Q.C., for the appellant.

R.V. Storrow, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This appeal is brought, pursuant to leave granted by this Court on December 15, 1969, from an unanimous judgment of the Court of Appeal for British Columbia1 pronounced on November 20, 1969, quashing the conviction of the respondent before Ruttan J. and a jury on February 26, 1969, on the charge that on December 19, 1967, he

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together with Isaac Darryl Frank did commit the non-capital murder of Rosie Vollet.

A brief summary of the facts will be sufficient for an understanding of the points raised before us.

The respondent and another youth by the name of Isaac Darryl Frank were in the east part of Vancouver, B.C., early in the morning of December 19, 1967, having spent the night out together. Later that morning, a hunting knife, the blade of which was five or six inches long, was purchased by Frank in the presence of the respondent. Following this, Frank told the respondent “that he needed money to get back down to the States and that he was going to rob somebody.”

At approximately 9.30 that morning, the respondent and Frank went over to a gas station a few blocks from the store where the knife had been purchased and they were seen by an attendant talking to a woman who had driven in for some gas. This woman was Rosie Vollet, a forty-year old married woman, who later that day died from knife wounds inflicted by Frank. The attendant noticed the hunting knife in the hand of one of the youths but was unable to say which one.

Both Frank and the respondent got into Mrs. Vollet’s car with her and after it was filled with gas the three left in the car with Mrs. Vollet driving. Mrs. Vollet had paid for the gas with a twenty-dollar bill and had other bills in her purse. After travelling a short distance, Frank “pulled a knife on her and told her that if she wouldn’t say nothing, she wouldn’t get hurt.” Mrs. Vollet was then directed to pull over, following which the respondent took over the driving. He drove some distance out of Vancouver and eventually turned up a side road to a small clearing which was a lonely spot approximately thirty-six miles from the gas station. Frank and Mrs. Vollet got out of the car and the respondent turned the car around and stopped it but left the engine running. Some distance

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from the car, Frank inflicted multiple stab wounds on Mrs. Vollet, from which she died at least twenty minutes and possibly two hours later. The respondent helped Frank move Mrs. Vollet from the road and the two then returned together to Vancouver in the Vollet car with the respondent driving. There, they picked up the respondent’s “girl friend” and the three proceeded in the Vollet car to Corvallis in the State of Oregon where they were arrested.

Mrs. Vollet’s body was later found by the police and nearby was her purse which contained no bills.

The respondent and Frank were charged with the non-capital murder of Mrs. Vollet and were granted separate trials. No witnesses testified directly at the respondent’s trial as to the events which occurred from the time the car left the gas station until after it started back to Vancouver. The above facts were disclosed in statements made by the respondent and admitted in evidence at his trial.

The defence called no evidence.

Leave was granted to appeal to this Court on the following question of law:

Did the Court of Appeal err in holding that the learned trial Judge was wrong in failing to direct the jury that before they could find the respondent guilty of non-capital murder they must find that the respondent knew or ought to have known that the death of Rosie Vollet would be a probable consequence of carrying out the robbery?

The submission of the Crown at the trial and before us was that the respondent was guilty of non-capital murder by virtue of the combined effect of s. 202 and s. 21 of the Criminal Code which so far as applicable to the facts of this case read as follows:

202. Culpable homicide is murder where a person causes the death of a human being while com-

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mitting or attempting to commit… robbery… whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if

(a) he means to cause bodily harm for the purpose of

(i) facilitating the commission of the offence, or

(ii) facilitating his flight after committing or attempting to commit the offence,

and the death ensues from the bodily harm;

* * *

(d) he uses a weapon or has it upon his person

(i) during or at the time he commits or attempts to commit the offence, or

(ii) during or at the time of his flight after committing or attempting to commit the offence,

and the death ensues as a consequence.

21. (1) Every one is a party to an offence who

(a) actually commits it,

(b) does or omits to do anything for the purpose of aiding any person to commit it, or

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

In his charge to the jury, the learned trial Judge reviewed the sections of the Criminal Code dealing with homicide, culpable homicide, manslaughter and murder and then dealt with ss. 202 and 21(2). In effect he told the jury that before they could find the respondent guilty it was necessary that they should find that he knew or ought to have known that in carrying out the robbery Frank would cause bodily harm to the deceased for the purpose of facilitating the commission of the robbery or flight after its commission but that it was not necessary that

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they should find that the respondent knew or ought to have known that the death of the deceased was likely to be caused.

In summarizing this portion of his charge, the learned trial Judge used these words:

Now, let us return once again on my instructions on the law of murder that apply here. Remember that I said to you that the Crown must establish that the crime of murder as defined in Section 202(a) and (d) of the Criminal Code has been committed on the part of the accused person; that is, the Crown must relate the accused person to that crime of murder by showing that the accused was a joint participant in a crime of robbery, that he was associated throughout in the planning and carrying out of that robbery with the other accused Frank, that during the course of that robbery and as part of the robbery and while the robbery was still in effect, or while the accuseds were seeking to escape from that robbery and as a result thereof Mrs. Vollet was injured, bodily injury was done to her as a result of which she died; and finally, and most importantly, that the accused knew or should have known that in the course of carrying out this robbery the other accused Frank would probably cause injury to this lady of the nature that was applied to her and that injury was caused to her either for the purpose of facilitating the commission of the robbery or facilitating flight after committing it.

The reasons given in the Court of Appeal make it clear that that Court was unanimously of opinion that the learned trial Judge should have told the jury that they could not find the respondent guilty unless they found that the respondent knew or ought to have known that the deceased’s death would be a probable consequence of carrying out the robbery. The reasons state this to be the effect of the decisions in Cathro v. The Queen[2]; Chow Bew v. The Queen[3]; R. v. Eng. Git Lee[4]; R. v. Guay & Guay[5]; R. v.

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Black & Mackie[6] and an unreported judgment of the Court of Appeal for British Columbia in R. v. Calli & Shoemaker decided on July 27, 1966, a copy of which was supplied to us by counsel.

Before referring to these cases I think it desirable to consider the words of s. 202 and s. 21(2) of the Criminal Code, which have been quoted above. In my opinion the learned trial Judge rightly interpreted and applied those sections and his charge to the jury was correct in law. He made it clear to the jury that before they could convict the respondent of murder they must find that he and Frank formed an intention in common to rob the deceased, that in carrying out that common purpose Frank committed the murder of the deceased as defined in s. 202(a) and/or (d) (my italics) and that the respondent knew or ought to have known that the commission of murder as so defined (my italics) would be a probable consequence of carrying out the common purpose. The offence of murder which Frank committed and the commission of which the respondent ought to have foreseen as probable was complete when, while committing the robbery, Frank intentionally caused bodily harm to the deceased and her death in fact resulted therefrom. With respect, the construction of the sections adopted by the Court of Appeal appears to me to fail to give effect to the words in s. 202 “whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being”.

If the respondent ought to have known that it was probable that bodily harm would be inflicted on the deceased to facilitate the carrying out of the robbery, then it was unnecessary for the Crown to establish that he ought to have foreseen that her death was likely to result. The offence contemplated by s. 21(2) (that is murder as defined in s. 202 (a) and/or (d)) was committed when Frank inflicted the bodily

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harm on the deceased for the purpose of facilitating the robbery or flight. Its character was determined when her death ensued.

I can find nothing in the words of s. 21(2) to support the view that foresight of the victim’s death as a probable consequence of the robbery, an element expressly excluded in the definition of the offence of murder in s. 202, should have to be found to exist before the respondent could be convicted of such murder by the application of s. 21(2).

In my opinion in neither of the cases of Cathro v. The Queen or Chow Bew v. The Queen did this Court enunciate an interpretation of the predecessors of s. 202 and s. 21(2) different from that I have set out above. I think some confusion has arisen in the application of those decisions because of the frequent use in the reaons of the word “murder” without making it clear that the word as used meant murder as defined in s. 260, the predecessor of s. 202.

The case of R. v. Guay & Guay is complicated by the circumstance that on the evidence it was open to the jury to find that the common unlawful purpose under s. 21(2) was either theft or robbery, and theft is not one of the offences mentioned in s. 202. If this case or the other decisions relied on by the Court of Appeal in the case at bar which I have listed above, hold that a person, A, who forms a common intention with another person, B, to rob and to assist in the robbery cannot be convicted of murder if B in carrying out the robbery commits a murder as defined in s. 202(a) and/or (d) unless it is established that A knew or ought to have known that the death of the victim was a probable consequence of carrying out the robbery, then in my opinion, they were wrongly decided and ought not to be followed.

At the risk of repetition, it is my opinion that on the true construction of s. 202 and s. 21(2) as applied to the circumstances of this case it was necessary to support a verdict of

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guilty againt the respondent that the Crown should establish (i) that it was in fact a probable consequence of the prosecution of the common purpose of the respondent and Frank to rob Mrs. Vollet that Frank for the purpose of facilitating the commission of the robbery would intentionally cause bodily harm to Mrs. Vollet, (ii) that it was known or ought to have been known to the respondent that such consequence was probable and (iii) that in fact Mrs. Vollet’s death ensued from the bodily harm. It was not necessary for the Crown to establish that the respondent knew or ought to have known that it was probable that Mrs. Vollet’s death would ensue. In my opinion the jury were accurately instructed on this vital issue and there was ample evidence to support their verdict.

It appears from what I have said above that, if the only ground of appeal from the verdict of guilty had been that on which the Court of Appeal proceeded, I would allow the appeal but in the course of their reasons the Court of Appeal stated that they did not find it necessary to deal with the other grounds of appeal which were argued before them.

These other grounds are not set out in the Appeal Case or in the factums but counsel for the respondent in the course of his oral argument put forward the following:

First:—When the jury returned for further instruction the learned trial Juge said to them:

As far as Trinneer is concerned to fix him with responsibility for murder the Crown must satisfy you that Trinneer knew or should have known, first of all the Crown must satisfy you that Trinneer was a party to the robbery too, that he was committing the robbery jointly with Frank. And then the Crown must satisfy you that Trinneer knew or should have known that while Frank was carrying out the robbery or was escaping after the robbery was committed that Frank would probably cause injury to somebody, the victim of the robbery in this case, for the purpose of carrying out the robbery or for getting away, escaping, and if

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Trinneer knew or should have known that Frank would use violence under those circumstances or should have known that Frank would probably use violence under those circumstances, then Trinneer is just as guilty of murder as Frank is.

For the respondent it is submitted that in the three places where the phrase “satisfy you” is used in this passage the learned trial Judge should have added the words “beyond a reasonable doubht”. I would reject this ground. The learned trial Judge had repeatedly and accurately charged the jury as to the onus on the Crown to prove the guilt of the respondent beyond a reasonable doubt. I quote only one passage which is as follows:

So, the burden rests upon the Crown to prove these three separate things to your satisfaction beyond a reasonable doubt before there can be a conviction for murder in this case:—

First the Crown must prove that the accused was a party to the robbery of Mrs. Vollet. Secondly, in carrying out that robbery Mrs. Vollet came to her death under such circumstances as to amount to murder as defined in Section 202 of the Criminal Code. And thirdly, that this accused knew or ought to have known that murder in that form would probably result from carrying out the robbery.

If the Crown has failed in the proof of any of these three things the accused must be acquitted.

It is not incumbent on a trial judge to repeat again and again a rule of law which he has put before the jury clearly and accurately.

Second:—It is said that some of the statements made by the accused and admitted by the learned trial Judge should have been excluded as inadmissible. I have reached the conclusion that the learned trial Judge did not err in law in deciding that the challenged statements were voluntary and should be admitted. Had it been otherwise it would have been necessry to con-

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sider whether there was real substance in this ground, since every material statement of fact contained in the challenged statements which was relied on by the Crown appears to have been contained in other statements of the respondent the admission of which in evidence was not challenged and could not have been objected to successfully.

Third:—It was argued that the learned trial Judge erred in not permitting a Crown witness to be cross-examined as to whether he was a user of marijuana. In my view the learned trial Judge did not err in law in exercising his discretion to limit the cross-examination of this witness.

Finally it was submitted that the learned trial Judge should have directed an acquittal. I have already indicated my view that there was ample evidence to support the verdict of the jury and that they were properly directed.

I would allow the appeal, set aside the order of the Court of Appeal and restore the judgment of the learned trial judge.

Appeal allowed.

Solicitor for the appellant: T.G. Bowen-Colthurst, Victoria.

Solicitor for the respondent: Anfield & Company, Vancouver.

 



[1] (1970), 71 W.W.R. 401, 10 C.R.N.S. 1.

[2] [1956] S.C.R. 101, 22 C.R. 231, 113 C.C.C. 225, 2 D.L.R (2d) 270.

[3] [1956] S.C.R. 124, 22 C.R. 253, 113 C.C.C. 337, 2 D.L.R. (2d) 294.

[4] (1955), 116 C.C.C. 316, 23 C.R. 345.

[5] [1957] O.R. 120, 26 C.R. 28, 117 C.C.C. 174.

[6] [1966] 1 O.R. 683, 49 C.R. 357, [1966] 3 C.C.C. 187.

 

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