Supreme Court Judgments

Supreme Court of Canada

McFall v. The Queen, [1980] 1 S.C.R. 321

Date: 1979-06-28

Allwyn George McFall Appellant;

and

Her Majesty The Queen Respondent.

1978: December 5, 6; 1979: June 28.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Criminal law—Three persons convicted on charge of murder—Joint trial—Errors by trial judge with respect to use of extrajudicial statements of accused—Overwhelming evidence implicating appellant—Application of provisions of Criminal Code, s. 613(1)(b)(iii).

The appellant was one of three persons charged and convicted of the non-capital murder of David Perry in the City of Winnipeg after a trial by judge and jury and all of whom were thereupon sentenced to life imprisonment. The conviction was confirmed by a majority of the Manitoba Court of Appeal; O’Sullivan J.A. dissenting would have ordered new and separate trials. The appellant then appealed to this Court pursuant to s. 618(1)(a) of the Criminal Code on the basis of a dissent in the Court of Appeal on a question of law.

The certificate of the Court of Appeal set out 12 grounds of dissent, the first three of which were as follows: “1. The learned trial judge erred in inviting the jury to compare and contrast the confessions of the appellant with the confessions of his co-accused, to test the validity of the confessions of the appellant. 2. The learned trial judge erred in inviting the jury to consider the statements of the appellant’s co-accused, which were inadmissible as against the appellant, in considering the credibility of the appellant. 3. The learned trial judge erred in permitting the appellant to be asked, during his cross-examination, to comment on the veracity of his co-accused in connection with their confessions and to comment on the veracity of other witnesses.”

The majority reasons in the Court of Appeal came to the same conclusion as the dissent with respect to the first three grounds of dissent but applied s. 613(1)(b)(iii) of the Code and dismissed the appeal.

Held (Laskin C.J., Spence and Estey JJ. dissenting): The appeal should be dismissed.

Per Martland, Ritchie, Pigeon, Dickson, Beetz and Pratte JJ.: Having regard to the overwhelming evidence

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implicating the appellant in the murder of which he was convicted, the Court of Appeal was satisfied that this was a case in which, in spite of the errors of the trial judge referred to in the judgments below, there was no “substantial wrong or miscarriage of justice” and the provisions of s. 613(1)(b)(iii) of the Code were properly applicable. There was no error in law in the majority judgment of the Court of Appeal.

Per Laskin C.J. and Spence and Estey JJ., dissenting: The use of the confessions by the co-accused against the appellant was a fundamental violation of the rule against the admission of hearsay evidence and a gross exception to or expansion of the exception from the general prohibition which is unrecognized in the law. (Schmidt v. R., [1945] S.C.R. 438.)

The jury was not protected against misuse of the extrajudicial statements by proper instructions, but conversely was invited to analyse each statement in the light of the contents of the other two statements as though each were evidence against the appellant. In this appeal, it was evident from hindsight that the problem of misuse of confessions would have been avoided by separate trials. But the exposure of the question to hindsight was not the answer. There was nothing to indicate any error on the part of the trial judge in the exercise of his discretion on the question of separate or joint trials. The problem began with the improper use of the statements of the co-accused in the cross-examination of the appellant, continued in improper addresses to the jury, and culminated in instructions to the jury by the trial judge concerning the comparison of the various statements made by the co-accused.

A serious and fundamental error of law was committed, and one could not be certain that in the absence of this repeated error a jury properly instructed would necessarily have reached the same conclusion with reference to the appellant. Therefore, in these circumstances, and on the basis of past decisions of this Court on the question of the proper application of the curative powers granted under s. 613(1)(b)(iii) of the Criminal Code (or its predecessor), that subsection could not be invoked and the conviction therefore should not stand. Dissent on the issue of the application of s. 613(1)(b)(iii) in an appellate court is dissent on a question of law which can therefore be reviewed by this Court. [Bruton v. U.S. (1968), 391 U.S. 123; Brooks v. The King, [1927] S.C.R. 633; Stein v. The King, [1928] S.C.R. 553; Lizotte v. The King, [1951] S.C.R. 115; Brown v. The Queen, [1962] S.C.R. 371; Colpitts v. The Queen, [1965] S.C.R. 739; The King v. Décary, [1942] S.C.R.

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80; Rozon v. The King, [1951] S.C.R. 248; Pearson v. The Queen, [1959] S.C.R. 369; Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881, referred to.]

APPEAL from a judgment of the Court of Appeal for Manitoba[1], dismissing, by a majority, appeals by the appellant and two others from their conviction of non-capital murder. Appeal dismissed, Laskin C.J., Spence and Estey JJ. dissenting.

D’Arcy McCaffrey, Q.C., for the appellant.

J.G. Dangerfield, for the respondent.

The reasons of Laskin C.J. and Spence and Estey JJ. were delivered by

ESTEY J. (dissenting)—The appellant was one of three persons charged and convicted of the non-capital murder of David Perry in the City of Winnipeg after a trial by judge and jury and all of whom were thereupon sentenced to life imprisonment. The conviction was confirmed on appeal by a majority of the Manitoba Court of Appeal (reasons given by Freedman C.J.M., concurred in by Guy, Monnin and Matas JJ.A.; O’Sullivan J.A. dissenting would have ordered new and separate trials). The other two persons charged and convicted who have not appealed the judgment of the Court of Appeal were Kizyma and Puffer. The appellant McFall now appeals to this Court pursuant to s. 618(1)(a) on the basis of a dissent in the Court of Appeal on a question of law.

The certificate of the Court of Appeal sets out the grounds of dissent:

1. The learned trial judge erred in inviting the jury to compare and contrast the confessions of the appellant with the confessions of his co-accused, to test the validity of the confessions of the appellant.

2. The learned trial judge erred in inviting the jury to consider the statements of the appellant’s co-accused, which were inadmissible as against

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the appellant, in considering the credibility of the appellant.

3. The learned trial judge erred in permitting the appellant to be asked, during his cross‑examination, to comment on the veracity of his co-accused in connection with their confessions and to comment on the veracity of other witnesses.

4. The learned trial judge erred in failing to instruct the jury that, where two or more persons conspire together to commit robbery and to use violence in the course of the robbery, and death results from the use of violence by one or more of the co-conspirator(s), a conspirator is guilty of murder only if the bodily harm that resulted in death was of a type that was within the scope of the common enterprise.

5. The learned trial judge erred in refusing a motion for the severance of the trials.

6. The learned trial judge erred in failing to rule inadmissible the extra-judicial statement made by the accused, McFall.

7. The learned trial Judge erred in excluding from the jury the theory of the defence of the appellant, that the deceased was a homosexual and that the deceased had invited one of the co-accused to his room to engage in homosexual activity, for which the co-accused was to be paid.

8. The learned trial Judge erred in failing to instruct the jury properly on the meaning of the word “steal” in the criminal law.

9. The learned trial Judge erred in failing to instruct the jury properly on the meaning of the word “wilfully.”

10. The learned trial Judge erred in admitting evidence of appellant’s previous bad character in the form of a conversation relating to appellant’s previous dealings with homosexuals.

11. The learned trial judge erred in failing to instruct the jury that they could believe the

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accused guilty of some crime other than murder or manslaughter, such as aggravated assault.

12. The Section 613(1)(b)(iii) of the Criminal Code should not be applied in order to dismiss the appeal.

The majority reasons in the Court of Appeal came to the same conclusion as the dissent with respect to the first three grounds of dissent but applied s. 613(1)(b)(iii) and dismissed the appeal. The Chief Justice expressed his views on these errors in this way:

Growing out of the contention just considered is a submission that there was error in the course of the trial in Crown counsel using the statements of Puffer and Kizyma in the cross‑examination of McFall. I agree that there was error. If Puffer’s statement is not admissible against McFall he should not be confronted with it on cross-examination. So too with Kizyma’s statement. To me this looks too much like getting in the back door what one can’t get in through the front door. But what was the effect of the error? As I read the evidence no prejudice to the accused resulted from the course taken. Indeed it enabled McFall to whittle down, or at least to try to whittle down, some of the damaging assertions contained not only in his statement but in those of the others.

There is also a contention that Crown counsel erred in inviting the jury to make a comparison between the statement of the three accused—thus asking them to compare admissible evidence with inadmissible evidence. I agree that the course taken was wrong. But the learned trial Judge in his charge to the jury made it plain that (1) the addresses of counsel were not evidence and were not to be treated as such; (2) the jury were to take their law from him alone; (3) the case of each accused was to be considered and judged separately from the others; and (4) the statement to the police of each accused was not evidence against the other two

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accused and was not to be treated as such. That in my view would very much lessen, if indeed it did not entirely eliminate, the possible damaging effect of Crown counsel’s suggestion.

…

That there were errors in the trial—some above referred to, others more minor in character—I do not deny. A perfect record rarely emerges in a criminal trial. But the learned trial Judge’s handling of the trial was scrupulously fair. Such error as crept in did not, in my view, result in any “substantial wrong or miscarriage of justice”. Applying the provisions of Sec. 613(1)(b)(iii) I would dismiss the appeal.

O’Sullivan J.A., discussing the three individual extra-judicial statements by the co-accused which were introduced in evidence by the Crown, stated:

These confessions, while partly implicating their authors, all offered explanations which if accepted by a jury might reduce the author’s participation to something less than murder. Each confession sought to throw a large share of the blame on the other accused.

…

…Crown counsel adopted at the trial a course of action which, although on reflection it was extraordinary, was acquiesced in by the presiding judge and by counsel for each of the accused. Crown counsel took the three confessions and he compared and contrasted them. He did so through a cross-examination of the accused McFall who took the witness stand after his confession had been ruled voluntary. He did so in the course of a detailed speech to the jury. He invited the jury to look at each statement side by side with the other confessions and to infer from them—from their similarities and from their differences—and from their consist-

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ency or inconsistency with the physical facts—to infer from them what happened on the night in question.

…

In my opinion, it was a serious error for Crown counsel to invite the jury thus to compare and contrast the confessions.

…

Having come to the conclusion that there were a number of serious errors in the course of the trial, I am satisfied that the verdict is not one that twelve persons properly instructed would necessarily have come to.

It is apparent that these extrajudicial statements made by the three accused were the subject of extensive use in cross-examination of the accused, were mentioned in addresses to the jury by both counsel for the co-accused and the Crown, and by the Court in charging the jury. In all these instances, these three statements were compared and cross-checked so that the statements of the co-accused were repeatedly presented as though admissible against the appellant for any and all purposes in the same manner as his own statement. The impact on the jury was heightened by the fact that the appellant alone of the three accused entered the witness box and as will be seen from the excerpts quoted below, counsel for the co-accused Kizyma and Crown counsel put to the appellant the statements of the two co-accused and challenged the appellant for explanation of differences between the three statements. The following are excerpts from the cross-examination of the appellant by counsel for one of the co-accused:

Q. When you entered the room with Mr. Puffer, didn’t you say ‘We’re with the R.C.M.P. Special Police.’?

A. No, Sir.

Q. Mr. Kizyma said you said that.

A. I never said it.

Q. Mr. Kizyma said you said, ‘We heard that you brought some heroin to Winnipeg.’?

A. I never said that.

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Q. David said ‘no’.

A. I never heard.

Q. So Mr. Kizyma is lying again?

A. Uh-huh.

Q. Then Mr. Kizyma said you slapped him and told him he did.

A. I never touched him.

Q. Mr. Kizyma is lying again?

A. (no reply.)

THE COURT: The witness is not answering your question.

MR. SCHWARTZWALD: I think he had.

THE COURT: I don’t think he did. You are reading statements that are intended to be questions and not getting an answer.

Q. So Mr. Kizyma is lying when he said you slapped Mr. Perry and told him that he did bring drugs to Winnipeg?

A. I suppose so he’s lying.

Q. In Mr. Kizyma’s statement he says he put the pillow on Mr. Perry?

A. Yes.

Q. He’s not lying there, is he?

A. No.

The following is an excerpt from the cross-examination of the appellant by the Crown Attorney:

Q. I want to refer you to Mr. Puffer’s statement. As a matter of fact I am suggesting to you what Mr. Puffer said is accurate, “I went to Allwyn and said, ‘There’s no money.’” Do you remember Mr. Puffer saying that?

A. No, sir.

Q. “By this time they—Mark and Allwyn were wrestling David on the floor.” Wasn’t that the truth?

A. No, sir.

Q. So you say that part of Mr. Puffer’s statement is not true?

A. Yes, sir.

Q. “Mark and Allwyn were wrestling David on the floor.”, is not true?

A. No, sir.

Q. All right, let us go back to the statement again. “While I was doing this Kerry went through his suits in the closet looking for money.” Isn’t that right?

A. No, sir.

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Q. It’s not right?

A. No, sir.

Q. Mr. Kizyma in his statement, Exhibit 67, said, “Meanwhile Allwyn was saying ‘We’re R.C.M.P. Special Police.’” You were telling him you were the R.C.M.P. Heroin Squad and he went on to say about you slapping.

A. No sir, he did not do that.

Q. Then further on in Kizyma’s statement, “Then he went to get up and I pushed him over the bed, and he landed on the floor on the other side.” Is that statement true?

A. That I pushed him?

Q. Kizyma said he pushed him.

A. Yes, that was when we entered the room.

Q. “Then he went to get up and I” referring to Mr. Kizyma, “pushed him over the bed, and he landed on the floor on the other side.”; is that true?

A. I don’t know where he landed.

Q. He pushed him over the bed?

A. He pushed him, yes.

Q. You told us that already.

A. Yes.

Q. The next sentence in Kizyma’s statement, “Then Tom,” Mr. Puffer, “came back into the room and I” which means Kizyma, “went looking for money. I opened the closet door to see if there was any money inside there but I did not touch none of his suits or his clothing.”; isn’t that the truth?

A. It might be.

Q. When you say in your statement, again coming back so we know where we are standing right after the phone was put back on the hook, “While I was doing this Kerry went through his suits in the closet looking for money.” That’s the truth, isn’t it?

A. No.

Q. You said Kizyma’s statement might be true but yours is wrong?

A. If he said he done it, then he done it.

…

Q. False. In Kizyma’s letter, Exhibit 68, the one he wrote to his parents says, “And I said I couldn’t find any money. And the guy said he left his wallet in the vault downstairs in the hotel front

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desk.” What do you have to say about that? Is that true?

A. I don’t know if it is true or not.

THE COURT: What exhibit was that?

MR. NOZICK: I referred to the letter, Exhibit 68, the one written by Mr. Kizyma to his parents.

BY MR. NOZICK:

Q. You say virtually the same thing in your statement, don’t you?

A. Yes.

Q. You cannot say whether it was true or not?

A. He read my statement too.

Q. That is in your statement you gave to the police, didn’t you?

A. Yes.

Q. Referring you to Mr. Puffer’s statement, Exhibit 50, and I will read it in context, “Allwyn and Mark were talking to David. I went to Allwyn and said there’s no money…”; do you recall that?

A. I recall his coming to me and saying that.

Q. “By this time they—Mark and Allwyn were wrestling David on the floor. Allwyn told me to tie his feet and gave me a belt. I remember tying his feet. Then one of them said ‘Let’s go.’” is that right?

A. Yes.

Q. You are the one, I suggest to you, that handed the belt to Mr. Puffer and told Mr. Puffer to tie his feet?

A. No, sir.

Q. So that part of Mr. Puffer’s statement is not true?

A. If I told Mr. Puffer to jump in the fire, would he jump in the fire?

Q. I don’t know. He’s your friend.

A. I don’t think he would.

THE COURT: There were several comments put to the witness in that statement, Mr. Nozick more important than would he do this or that. I think the witness should be given a more specific opportunity to refer to your part of the question taken from Puffer’s statement that suggested that Allwyn gave him the belt and told him to tie his feet.

MR. NOZICK: TO be more specific I tried not to take the statement out of context.

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BY MR. NOZICK:

Q. I am taking a statement and suggesting it is true from Mr. Puffer’s statement, “Allwyn told me to tie his feet and gave me a belt—I remember tying his feet.”; what do you have to say about that statement?

A. It’s not true.

Q. Then going back to your statement, which you deny, “Jason was tying his feet with his belt and Kerry was hitting him in the face and he tied his hands with something behind his back.”; what do you have to say about that statement?

A. I never told him to tie his hands behind his back. I asked the police how was his hands tied and they told me.

Q. I am suggesting to you, Mr. McFall, you were the one that was really quarterbacking this whole scene. You were the one that was telling everybody else what to do?

A. No, sir.

Q. I am going to read you part of Mr. Kizyma’s statement, Exhibit 67, and I want you to tell me whether you agree or disagree with what Mr. Kizyma told the police in this statement, Exhibit 67. Remember I read you the part, “I opened the closet door to see if there was any money inside there but I didn’t touch none of his suits or his clothing.” Do you remember when I asked you that before?

A. Yes.

Q. You told me that might be true, was that your answer?

A. Yes.

Q. Then it goes on in the next sentence, “When I came back into the room Tom had David against the wall and Tom threw him on the ground and punched him.”; do you remember that?

A. No, sir.

Q. He went on, “He went on the ground then Allwyn was holding him down …”; do you remember that?

A. No, sir.

Q. “And he” referring to you, “told me to grab his arms, then Allwyn passed Tom the belt and Allwyn said Tie his feet.’”; do you remember that?

A. No, sir.

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Q. You deny that?

A. Yes, sir.

Q. “David was just laying there and was saying ‘Oh my God.’”; do you remember that?

A. No, sir.

Q. You don’t remember Mr. Perry saying, “Oh, my God.”?

A. No, sir.

Q. You don’t remember that?

A. No, sir.

Q. “Then Allwyn passed me the” that is Mr. Kizyma, “the coffee pot cord and told me to tie his hands up.”; isn’t that right?

A. No, sir.

Q. “We were going to leave the room then and Allwyn said ‘Gag him.’”; isn’t that right?

A. No, sir.

Q. You did not say, “Gag him.”?

A. No, sir.

Q. Wasn’t your idea to have Mr. Puffer tie David Perry’s feet with a belt?

A. No, sir.

Q. It was not your idea to have Mr. Kizyma tie Mr. Perry’s hands behind his back with the coffee pot cord?

A. No, sir.

Q. It was not your idea to gag Mr. Perry?

A. No, sir.

Q. You did not play any part in this?

A. No, sir.

Q. Just going back to Mr. Kizyma’s statement again, Exhibit 67, “So I couldn’t find nothing to gag him with so I used a pillow and someone threw me his sweater.”; do you remember that?

A. Do I remember hearing or seeing?

Q. Do you remember hearing and seeing? Mr. Kizyma said this and you tell me if this is true, “So I couldn’t find nothing to gag with him so I used a pillow and someone threw me his sweater. Meanwhile Tom and Allwyn were watching …”; is that true?

A. I was out of the room by that time.

Q. So you were not watching Mr. Kizyma tie the pillow to the face of David Perry?

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A. No, sir.

Q. With the sweater?

A. No, sir.

Q. I am suggesting to you that it was you that threw the sweater that was used to tie the pillow up, to Mr. Kizyma?

A. No, sir.

Q. Your statement says, “I said ‘Let’s go.’ and Kerry said ‘Wait a minute’ and he tied a pillow to his face.”; what about that?

A. I don’t remember that.

Q. After this happened in 2701 Northstar Inn, you left?

A. Yes, sir.

Q. Mr. McFall, you recall yesterday I was asking you whether certain passages in Mr. Kizyma’s statement, or Mr. Puffer’s statement were true?

A. Yes.

Q. Do you remember that’s where we were yesterday. Now I refer you to Mr. Kizyma’s statement which is Exhibit 67, page 3. Mr. Kizyma says, “Allwyn said to Tom, ‘Look for money.’ Tom ran around the room looking for money but couldn’t find any.” Now, do you recall that? Is that correct?

A. I recall you saying it yesterday, yes.

Q. Do you recall that happening in the room?

A. No, sir.

Q. Do you recall saying to Puffer, “Look for money.”?

A. No, sir.

Q. Do you recall Puffer running around the room looking for money?

A. No, sir.

Q. I refer you to Mr. Puffer’s statement, Exhibit 50, where he says at Page 3, “We walked in and Allwyn or Mark said ‘Search for money.’ So here I am looking in the drawers and that.” Do you recall that happening?

A. No, sir.

Q. Did you say, “Look for money.”?

A. No, sir.

Q. Or search for money?

A. No, sir.

Q. Did Kizyma say, “Search for money.”?

A. No, sir.

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Q. Do you recall Mr. Puffer looking in the drawers?

A. No, sir.

Q. Did you throw the mattress on top of Mr. Perry?

A. No, sir.

Q. Again, I refer you to Exhibit 67, Mr. Kizyma’s statement.

THE COURT: Would you slow down when you are referring to these various statements, please, Mr. Nozick. I’m having trouble with all the documents that are here, finding the exhibit first and then the place you’re referring to.

MR. NOZICK: Yes. Perhaps I should give the page number. It might be of some assistance.

BY MR. NOZICK:

Q. At page 4 of Mr. Kizyma’s statement, Mr. Kizyma said, “Then Allwyn threw the mattress over him, then we all left the room.” Do you remember that happening?

A. No, sir.

Q. And in his letter to you he says, “Okay, we all agreed to roll him.” Do you remember that statement in the letter?

A. Yes.

Q. That was correct, wasn’t it?

A. Pardon me?

Q. That was correct, wasn’t it?

A. No, sir.

Q. No. And he told you in his letter, “I’m willing to say you didn’t do nothing but Tom’s got to work this out himself.” Do you remember that in the letter?

A. Yes.

Q. So it appeared from the letter that was written to you, or the letter that was sent to you, that Mr. Kizyma was going to try and cover up for you?

A. I wouldn’t say he was trying to cover up.

Q. No?

A. I never asked him to cover up.

Q. Well, he says in his letter, “Okay, I’m the one that’s going to get the time. Now, Tom, he should get a little time. Now you—I’m going to try and cover up for you. In other words, I’m going to say you didn’t do fuck all.” Do you remember that?

A. That’s in the letter. It also says in the letter which I didn’t.

Q. Pardon?

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A. It also says which I didn’t.

Q. Exhibit 67, please. Page 4, my lord, of Exhibit 67. Mr. Kizyma made this statement and I want you to tell me if you agree with it: “Before we left the room, Allwyn took the ashtray and smashed his glasses.” Do you agree with that?

A. Pardon me?

Q. “Before we left the room Allwyn took the ashtray and smashed his glasses.”

A. I don’t really recall taking an ashtray and smashing anybody’s glasses.

Q. And then he says, “Tom hit him in the head with his fist pretty hard.” Do you remember that?

A. He might have done it.

Q. Well, wasn’t that when you were talking about waving your hand, “You know that you hit him. Why don’t you admit it?” And he said, “All right. So I hit him but only once.”

A. The only time I knew that Tom hit him was when he was talking in the Fort Garry Courts.

Q. I notice in Exhibit 70 that Mr. Kizyma starts his letter off as follows: “Allwyn, I will write that letter to your parents but I want to straighten a couple of things out first.” That would seem to indicate that you had had a conversation?

A. Yes, I did, yes.

Q. A conversation about covering up for yourself?

A. No, sir.

Crown counsel in his address to the jury recited the three statements of the accused and invited the jury to compare them one to the other thereby to discern the truth. The habit thus formed infected the charge to the jury as well. The learned trial judge included the following summary of the appellant’s testimony in his charge:

He says that Perry was not unconscious; he was talking. He denies that he said that they were from the R.C.M.P. or suggesting that Perry bought heroin; says where those statements appear in Kizyma’s statement, Kizyma is lying.

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He says he didn’t slap Mr. Perry and if Kizyma says that, Kizyma is lying. He says Kizyma is not lying, however, where he said about putting the pillow on. He agreed that his statement to the police, that is, McFall’s statement to the police, was correct to a certain extent.

…

He said, No, it’s not true if Kerry said they were going to the Mardi Gras.

…

Said what Puffer said in his statement that “Mark and he, Allwyn, were wrestling David on the floor” was not true. He said yes, he did smash the glasses. He didn’t know why; yes, he used the ashtray to smash the glasses. He did put the phone on the hook. He said he didn’t remember seeing Puffer do anything; that he doesn’t remember saying to the police that Jason jumped on the man and was holding him by the throat. He says it’s not true that Kerry went through the suits looking for money; denies Kizyma’s statement saying that he’d slapped the deceased. He said with respect to his own statement it’s not true. He didn’t say it.

…

Referred to Puffer’s statement, he said, “No, I did not tell him to tie his feet and hand him the belt.” He denies what Kizyma says in his statement that he was telling others to do this and that. He denies he passed the cord for tying the arms. He denies that he said, “Gag him.” He said, no, it was not his idea to have Kerry tie him and gag him. He said it’s not true that he was watching Kizyma tie the pillow to his face. He says, no, he did not throw the sweater to Kizyma.

…

In the latter part of his cross examination he was referred to a portion of Kizyma’s statement. He says, “No, I don’t really recall taking the ashtray and smashing anybody’s glasses.”

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The learned trial judge discussed the three statements made by the three co-accused, in his charge as follows:

As you recall it was originally my intention to remove from the statements the names of other accused mentioned in the statements, however, as those names have been used to a large extent in the examination and cross examination of McFall, it is now necessary to leave the names in the statements so that you can make a comparison of what McFall has denied with some of the suggestions in those other statements. If the names had not been referred to or if none of the accused had testified, removal of the names would have made it easier for you to exclude all inadmissible evidence from your mind. All I can now do is urge you again in reading the statements to remember, for example if Kizyma says that Puffer did something or other, you may consider that evidence with respect to Kizyma because it may indicate his knowledge of what was going on but you can not use that evidence against Puffer. That is just one example to indicate and to caution you, again, that evidence in the statements is evidence against the person who made the statement and not against any other accused.

I say the only exception to that general rule is that you may look at names in other statements with respect to McFall in company with what he said in the stand in trying to decide on his general truthfulness or credibility.

The Court then invited the jury to examine these statements in accordance with his instructions:

I now wish to review briefly the statement of each accused as much for the manner of the way I suggest you look at them as anything else.

You take McFall’s statement to see what he says he did and nothing else.

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Such use of the statements by the co-accused against the appellant was, of course, an error of law, a fundamental violation of the rule against the admission of hearsay evidence and a gross exception to or expansion of the exception from the general prohibition which is unrecognized in the law. (Schmidt v. The King)[2]. A succinct condemnation of such use of extrajudicial statements by co-accused was made by Brennan J. in Bruton v. U.S.[3], at p. 135:

Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination.

Here of course the jury was not protected against misuse of these statements by proper instructions, but conversely was invited to analyse each statement in the light of the contents of the other two statements as though each were evidence against the appellant. This leads one naturally to query the wisdom of joint trials where the existence of such statements made by all the co-accused is known in advance. The economies and the efficiencies of joint trials and the advantage of minimizing inconsistent and unsatisfactory verdicts which expose the law and the courts to criticism by the public, attract the trial courts to the undertaking of joint trials in such circumstances. In doing so, the court takes on the added and heavy burden of complete and proper instruction to the jury on the precise limits of the evidence admissible against each of the accused, and hence the limited use to which these statements may be put. This burden is discharged only by the clearest instruction to the jury that only the statement made by the accused himself is admissible

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against him, and his statement in turn is inadmissible against his co-accused. There is in these circumstances a constant risk because any instruction short of the foregoing will jeopardize and may destroy any chance of a fair and proper trial. Professor Glanville Williams has commented on the practice of joint trials:

One wonders whether judges do not welcome the fact that the joint trial offers an escape from the rigid rules of evidence.

(Glanville Williams, Proof of Guilt, (3rd ed.) 1968, p. 249)

The relaxation referred to is of course the admissibility in the joint trial of all statements of all accused. The rule of evidence perhaps referred to as “rigid” in the above quotation is the prohibition against the use of an extra-judicial statement against persons other than the maker. Joint trials of course do not reduce the application of this rule. The learned author continues:

The theory of the joint trial is that even though evidence may be given in the course of the trial that is in law admissible against one defendant only, justice is done by the judge directing the jury to erase this evidence from their minds in considering the other defendants. The simple faith that the jury are able to follow this direction, compartmentalising their minds in respect of each of the accused, is curiously inconsistent with the effort made by other rules of law to prevent the jury coming to know of evidence that may be misleading. If the justification of part of the law of evidence is that the jury cannot be trusted to hear certain types of evidence, they do not become trustworthy merely because there is also another defendant in the dock. (p. 249)

Recognizing all the risks of the practice of joint trials, the law gives to the trial judge the discretion of determining in the circumstances of each case whether a joint trial may be undertaken. Unless there be a clear indication that such discretion has been exercised on some wrong notion or in the face of circumstances which made the prospect of a fair

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trial unlikely, an appellate tribunal will not interfere. In this appeal, it is evident from hindsight that the problem of misuse of confessions would have been avoided by separate trials. But the exposure of the question to hindsight is not the answer. The law contemplates a joint trial in these circumstances and has prescribed the proper mode of instructing the jury in accordance with the applicable law of evidence. Whatever error may have ensued, nothing appears from the record to indicate any error on the part of the learned trial judge in the exercise of his discretion on the question of separate or joint trials. Indeed, the trial judge did instruct the jury at one point that a statement made by an accused to public authority was not to be taken into account when dealing with the case of a co-accused who was not the maker of the statement in question. The problem began with the improper use of the statements of the co-accused in the cross-examination of the appellant, continued in improper addresses to the jury, and culminated in instructions to the jury by the trial judge concerning the comparison of the various statements made by the co-accused. The Chief Justice, speaking for the majority of the Court below with respect to the decision of Hamilton J. not to sever the trials, stated: “In my view there were no adequate grounds for such interference in the present case,” and I with respect agree with this conclusion.

We are then left with the conflict below as to the application of the curative powers of s. 613(1)(b)(iii). This Court has had occasion in the past to consider its position when faced with an appeal from a decision in the Court of Appeal below on the question of the proper application of the powers granted under s. 613(1)(b)(iii) of the Criminal Code (or its predecessor). In Brooks v. The King[4], this Court declined to apply the curative powers in what is now s. 613(1)(b)(iii), and set aside a dismissal of appeal by the Court of Appeal of Ontario who had applied the section in

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dismissing an appeal from conviction. See also Stein v. The King[5], where this Court again affirmed the power to consider the correctness of the application of s. 613(1)(b)(iii) (s. 1014(2) as it then was) of the Criminal Code in the Court of Appeal.

The issue next came before this Court in Lizotte v. The King[6] where this Court unanimously allowed an appeal, rejected the application of s. 613(1)(b)(iii), and directed a new trial. Cartwright J., as he then was, writing on behalf of the Court, stated at p. 137:

The view that this court exercises its own judgment as to whether or not it can be said that no substantial wrong or miscarriage of justice has occurred, I think, appears not only from the two cases last cited but also from Boulianne v. The King, [1931] S.C.R. 621, and Schmidt v. The King, [1945] S.C.R. 438, in both of which this court gave effect to the argument that no substantial wrong or miscarriage of justice had occurred, and dismissed the appeals, and from Chap-delaine v. The King, [1934] S.C.R. 53, in which this court allowed the appeal, refusing to give effect to the argument that no substantial wrong or miscarriage of justice had occurred.

In the course of his judgment His Lordship considered the question of the jurisdiction of this Court with respect to this section:

One further argument requires consideration. At the conclusion of his able argument Mr. Dorion submitted that the jurisdiction of this court in criminal matters being limited to questions of law and the court appealed from having held that notwithstanding certain errors in law at the trial there was no substantial wrong or miscarriage of justice and that the appeal should be dismissed under the provisions of section 1014(2) of the Criminal Code, such decision cannot be reviewed in this court. It is argued that in reaching the decision to apply section 1014(2) the Court of Appeal must of necessity have examined and weighed the evidence and that consequently such decision is one of fact or of mixed fact and law and, therefore, not subject to review in this court. It is urged that the appeal must be dismissed even if this court should be of opinion that any or all of the points of law argued before us are well taken.

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I do not think that this argument is entitled to prevail. In the case at bar it might perhaps be disposed of by pointing out that in my opinion there were serious errors in matter of law at the trial which the Court of Appeal did not regard as being errors at all; but even had the Court of Appeal found the existence of all the errors in law which in my view did occur and nonetheless dismissed the appeal pursuant to section 1014(2), I do not think that this court would be without jurisdiction.

Counsel were not able to refer us to any reported case in which the argument put forward by Mr. Dorion appears to have been considered. Its importance is obvious. If given effect it would have the result that in any case in which a Court of Appeal dismisses an appeal because in its view, in spite of error in law at the trial, no substantial wrong or miscarriage of justice has actually occurred this court could not entertain, or at all events could not allow, an appeal from such judgment no matter how grave, in the view of this court, was the error complained of. (pp. 133-4)

In Brown v. The Queen[7] Cartwright J. in giving the majority judgment on behalf of himself and Locke and Martland JJ.A., refused to follow the Court of Appeal of Alberta in applying s. 613(1)(b)(iii), but rather allowed the appeal and directed a new trial. Fauteux J., as he then was, dissented as he found: “No miscarriage of justice or substantial wrong resulted therefrom.” Taschereau J. as he then was, also dissented on the ground that he could find no conflict between the majority judgment and that of the minority below “on questions of law”. It is not entirely clear whether this dissent is based upon a disagreement with Cartwright J. when he stated:

With the greatest respect to those who entertain a different view, it appears to me that when one judge holds that a passage in the charge to the jury is material and fatally misleading and another judge holds that the same passage is irrelevant they are in disagreement on a point of law. (p. 378);

or whether it is a reference to a difference in the Court below as to the application of what is now s. 613(1)(b)(iii). In any case, it is clear that the

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majority reversed the Court below on the issue of the application of s. 613(1)(b)(iii).

In Colpitts v. The Queen[8], the appeal before this Court was from a decision of the New Brunswick Court of Appeal where the majority affirmed a conviction upon the application of s. 613(1)(b)(iii) notwithstanding the failure of the trial judge to put the theory of the defence adequately to the jury. This Court, in reversing the disposition of the Court of Appeal, declined to apply the section. Spence J., with whom the balance of the majority concurred, stated with reference to Lizotte v. The King, supra:

In Lizotte v. The King, supra, Cartwright J. giving the judgment for the Court, held that it was within the jurisdiction of this Court to allow an appeal and refuse to apply the provisions of the present s. 592(1)(b)(iii) despite the fact that the Court of Appeal in the province had dismissed the appeal from the conviction upon the application of the said subsection. (p. 755)

The dissenting justices would have applied what is now s. 613(1)(b)(iii) for the reasons given by the majority in the Court of Appeal. There can be no doubt therefore that all members of the Court considered the issue of the application of s. 613(1)(b)(iii) to be a question of law.

It may be said that the foregoing authorities are inconsistent with the result reached in The King v. Décary[9].The Court was there concerned with what is now s. 613(1)(a)(i) and concluded that the dissent in the Court of Appeal on the question as to whether the verdict was unreasonable was not a question of law but was rather a question of mixed fact and law. The issue raised by the two subsections in s. 613 is of course quite different and in my view the judgment in Décary, supra, is of no assistance in determining the nature of the point raised in dissent with reference to s. 613(1)(b)(iii) on this appeal. Similarly, Rozon v. The King[10] was dealing with the issues arising upon the substitution of a verdict by a court in place of that

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reached by a jury, and the dissent in the Court of Appeal related to the applicability of a section not related to the present s. 613.

Finally, we come to Pearson v. the Queen[11], where the majority of the Court of Appeal dismissed an appeal from conviction notwithstanding a finding of improper admission of a statement by the accused. The dissent was on the application of what is now s. 613 in those circumstances. This Court affirmed the conviction on the basis that the dissent below was founded upon a question as to whether the sufficiency of evidence supporting the conviction was a question of fact. Kerwin C.J. stated at p. 372:

There was no dissent on any ground of law dealt with by the dissenting judge and upon which there was a disagreement in the Appellate Division and therefore this Court is without jurisdiction: The King v. Décary [supra]; Rozon v. The King [supra].

The Chief Justice reached this conclusion in a very short judgment in which no reference is made to any contention that the applicability of s. 613(1)(b)(iii) is not a question of law and no consideration was given to the earlier cases of Brook, supra and Stein, supra. In reaching his conclusion the following excerpt from the dissent in the Court of Appeal was set forth:

I do not think that the remaining evidence conclusively establishes the guilt of the accused. I would accordingly quash the conviction and direct a new trial, (p. 371)

The majority judgment of the Court of Appeal stated with reference to the evidence remaining after the disputed statement was set aside:

It is our opinion that quite apart from this statement there is ample evidence in the sales of grain by him to prove the offence of theft as charged, and that no injustice has been done to the accused in the verdict of guilty. Therefore, without arriving at any decision on the question of admissibility of the statement, we dismiss the appeal, and affirm the conviction. (p. 31)

The judgment in Pearson v. The Queen, supra, does not therefore, in my view, squarely deal with

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the issue of jurisdiction now before us. I therefore conclude from the foregoing line of authorities decided in this Court since 1927 that the Supreme Court has consistently held the view that it has jurisdiction to consider the application of s. 613(1)(b)(iii) as a question of law, and that on such an appeal it is open to the Court to reverse the application or denial of application of this provision of the Code in the Court below.

This brings the review of the authorities in this Court down to the judgments of this Court in Dunlop and Sylvester v. The Queen (pronounced May 31, 1979, and unreported[12]). The Manitoba Court of Appeal had confirmed a conviction of the accused by the application of s. 613(1)(b)(iii) of the Code. The dissent in the Court of Appeal would have directed a new trial by reason of an improper direction of the trial judge with respect to s. 21(1) and s. 21(2) of the Code and would not have applied s. 613(1)(b)(iii) to either of the errors of law relating to subss. (1) and (2) of s. 21.

The disposition in this Court of the Dunlop and Sylvester appeal, supra, was not on the basis of the application of s. 613 but rather on the basis that it was the error in the jury charge with respect to s. 21(1), which, in the view of Dickson J., was an error of law. With respect to this issue Dickson J. refused to invoke s. 613(1)(b)(iii) in order to allow the conviction to stand. The dissent in this Court dealt principally with the treatment accorded s. 21(1) by the trial judge in his instructions to the jury.

Martland J., with whom two justices concurred, dissented firstly on the ground that the charge under s. 21(1) was justified from the evidence. In reference to the third ground of appeal which was that “s. 613(1)(b)(iii) of the Criminal Code should not be applied in order to dismiss the appeal”, Martland J. stated:

I do not think that the third ground constitutes a dissent on a question of law. Paragraph (iii) of subs. 613(1)(b) gives to a court of appeal a discretionary power to dismiss an appeal from conviction, even where there has been a wrong

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decision by a trial court on a question of law if there has been no substantial wrong or miscarriage of justice resulting from that error. A disagreement by a dissenting judge regarding the exercise of that discretion is not a dissent on a question of law.

Pratte J. (with whom Beetz J. concurred) joined with Dickson J. in the disposition of the appeal on the ground that the learned trial judge had failed to respond to a question posed by the jury with reference to the meaning of a provision in the Criminal Code. However, with reference to the s. 613 issue, Pratte J. stated:

The difference of opinion in the Court of Appeal was solely as to the application of subpara. 613(1)(b)(iii) to such error [the legality of the charge with reference to s. 21(2)] and I agree with my brother Martland that this is not a dissent on a question of law.

By reason of these factors, the role and the interpretation of s. 613 was peripheral and the characterization of that section in law formed no part of the ratio decidendi of the majority. Therefore, in the disposition of the appeal now before the Court, I do not feel bound by the comments in the Dunlop and Sylvester case, supra, with reference to s. 613. I am strengthened in that view by the fact that in neither of the judgments to which the references to s. 613 were made was there any citation of authority or discussion of the above authorities.

For the reasons stated above with reference to the misuse of the extrajudicial statements by the co-accused throughout the trial, first on the cross-examination of the appellant, later in the address of the prosecution to the jury, and finally in the instructions given by the learned trial judge to the jury, I have concluded that a serious and fundamental error of law was committed, and that one cannot be certain that in the absence of this repeated error a jury properly instructed would necessarily have reached the same conclusion with reference to the appellant. Section 613(1)(b)(iii) cannot therefore be invoked in these circumstances and the conviction therefore cannot stand.

In light of my opinion that there must be a new trial, I do not deal with other evidential issues

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which arose at trial and in the dissent of O’Sullivan J.A. in the Court of Appeal. I do agree with the interpretation given by the majority in the Court of Appeal to the decision of this Court in R. v. Trinneer[13].

I therefore would allow the appeal, set aside the judgment in the Court of Appeal, quash the conviction of the appellant McFall, and direct a new trial.

The judgment of Martland, Ritchie, Pigeon, Dickson, Beetz and Pratte JJ. was delivered by

RITCHIE J.—I have had the advantage of reading the reasons for judgment prepared for delivery by my brother Estey, but I am nevertheless not persuaded that this appeal should be allowed. Having regard to the overwhelming evidence implicating the appellant in the murder of which he was convicted, the Court of Appeal was satisfied that this was a case in which, in spite of the errors of the trial judge referred to in the judgments below, there was no “substantial wrong or miscarriage of justice” and the provisions of s. 613(1)(b)(iii) of the Criminal Code were properly applicable. In my view there was no error in law in the judgment, rendered on behalf of the Court of Appeal for Manitoba by Chief Justice Freedman, with which Guy, Monnin and Matas JJ. agreed.

I would accordingly dismiss this appeal.

Appeal dismissed, LASKIN C.J. and SPENCE and ESTEY JJ. dissenting.

Solicitors for the appellant: McCaffrey, Akman, Carr, Starr & Prober, Winnipeg.

Solicitors for the respondent: Department of the Attorney General, Winnipeg.