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Supreme Court of Canada

Criminal law—Conspiracy—Effect of acquittal of one of two co-conspirators—Separate trials for co-conspirators.

The appellant and one Muzard were charged on a joint indictment with conspiracy of the one with the other. Before the jury was impanelled both the accused moved for separate trials, reference being particularly made to the intention of the Crown to produce a written statement given to the police by Guimond which clearly implicated Muzard in the conspiracy. The motion was refused and at the joint trial which ensued Guimond’s statement was admitted in evidence. However, Guimond gave contrary evidence to the effect that the whole scheme was his idea alone and Muzard had never agreed to anything concerning it. Even if Guimond’s testimony coincided in large mesure with the evidence of Muzard and despite the instructions by the trial judge to the jury that Guimond’s written statement was not evidence against Muzard, both the accused were convicted. On appeal, the Court of Appeal of Quebec affirmed the conviction of Guimond and ordered a new trial for Muzard. Muzard was acquitted at his second trial. Although the acquittal took place at a time subsequent to the judgment of the Court of Appeal and this circumstance forms no part of the reasons for judgment under appeal, the appeal to this Court rises the two following questions of law: (1) whether when an appeal is taken by two persons who had been jointly tried and convicted of conspiracy, it is an error for the Court of Appeal to allow the appeal of one of them and direct a new trial for him alone, or whether under such circumstances a new trial should be directed against both jointly; and (2) whether the acquittal of Muzard at his second trial should be given the effect of a finding that there was no conspiracy and that his fellow conspirator must also go free.

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

Per Martland, Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ.: The case law in England and in

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this country, in conformity with the age old procedure whereby review in such cases could only be held by Writ of Error, was for many years dominated by the rule that the court was limited to a consideration of errors appearing on the face of the record and it was frequently held, on this basis, that in conspiracy cases where two parties only were charged and the record disclosed the acquittal of one, the other must be acquitted even in the face of a plea of guilty. However, the majority of this Court in Koury v. The Queen, [1964] S.C.R. 212, made it abundantly clear that the old role of inconsistent verdicts was no longer binding on this Court. This contention was supported by the Privy Council in the case of Director of Public Prosecutions v. Shannon, [1975] A.C. 717, where it was stated that the rule which drew its life’s breath from the Writ of Error naturally expired when that writ was abolished. Now it can be taken, that where only two persons are charged with conspiracy and they are separately tried whether or not they are separately indicted, the conviction of one is not necessarily invalidated by the acquittal of the other.

The Court of Appeal was correct in ordering a new and separate trial for Muzard. The statement made by Guimond to the police was totally inadmissible. The nature of the other evidence tendered against him, coupled with the fact of his acquittal when the statement was found irreceivable at his second trial, is sufficient to show that Muzard was convicted at the first trial on the basis on this inadmissible evidence. Even if the jury has been told that it was evidence against Guimond alone, it could never have been said with assurance that one or more of the jurors did not convict Muzard on the basis of this statement. Also, whenever it is apparent that the evidence at the joint trial of two-alleged co-conspirators is substantially stronger against one than the other, the safer course it to direct the separate trial of each and this is particularly the case when the prosecution is tendering in evidence a damaging statement made by one under circumstances which made it inadmissible against the other.

Per Laskin C.J. and Estey J., dissenting: There was a fatal error made by the Court of Appeal in affirming the conviction of Guimond and at the same time ordering a new trial for Muzard. Not only is the logic unassailable that on a joint trial of two, charged with conspiring only with each other, an acquittal of one must carry the acquittal of the other, but legal principle is equally compelling for such a result. Similarly, if there be a conviction of the two and on their appeal a flaw is established in the trial, an order for a new trial or an acquittal must be of both.

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It is not open to say that the present case is one where the two accused should be treated as if separately tried. They were not; and to use the retrial of Muzard as a separate trial is to beg the very question raised by the joint indictment, the joint trial, the joint conviction and the joint appeal in which Muzard alone was given a new trial.

[Koury v. The Queen, [1964] S.C.R. 212; Director of Public Prosecutions v. Shannon, [1975] A.C. 717, applied; R. v. Manning (1883), 12 Q.B.D. 241; R. v. Plummer, [1902] 2 K.B. 339; R. v. Funnell (1972), 6 C.C.C. (2d) 215; Dharmasena v. The King, [1951] A.C. 1, not followed; R. v. Baron and Wertman (1976), 31 C.C.C. (2d) 525 distinguished]

APPEAL from a judgment of the Court of Appeal affirming the conviction of the appellant on a charge of conspiracy. Appeal dismissed, Laskin C.J. and Estey J. dissenting.

Jean-Pierre Sénécal and Henri-Pierre LaBaie, for the appellant.

Denis Robert and Robert Sansfaçon, for the respondent.

The judgment of Laskin C.J. and Estey J. was delivered by

THE CHIEF JUSTICE (dissenting)—I have had the advantage of reading the reasons prepared by Justice Ritchie in which he has set out the facts and discussed comprehensively the applicable law. My difference with him resides in the effect that he would give to the order of the Quebec Court of Appeal of a separate trial for Muzard (which resulted in an acquittal) following the appeal of both Guimond and Muzard from their conviction of conspiracy. In my opinion, there was a fatal error made by the Quebec Court of Appeal in affirming the conviction of Guimond and at the same time ordering a new trial for Muzard. If there was to be a new trial for the one, based on the trial judge’s failure to give the jury sufficient direction that a written statement by Guimond was not evidence against Muzard, new and separate trials should have been ordered for each.

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In this case, Guimond and Muzard were charged on a joint indictment with conspiracy of the one with the other and with no one else. Because of the Crown’s intention to introduce a written statement by Guimond implicating Muzard, the two accused moved for separate trials but their motion was refused and a joint trial ensued. Both the accused gave evidence which, if believed, would have exonerated them. Guimond’s written statement was introduced after a voir dire, but Guimond’s evidence at the joint trial contradicted his written statement and was to the effect that there was no conspiracy with Muzard but rather that the scheme to abduct the manager of a credit union and to extort money from it for his release (which was the subject of the alleged conspiracy) was a scheme concocted by Guimond alone.

Not only is the logic unassailable that on a joint trial of two, charged with conspiring only with each other, an acquittal of one must carry the acquittal of the other, but legal principle is equally compelling for such a result. Similarly, if there be a conviction of the two and on their appeal a flaw is established in the trial, an order for a new trial or an acquittal must be of both. This position is consistent with the result in Dharmasena v. The King[1] in the Privy Council and with R. v. Baron and Wertman[2] in the Ontario Court of Appeal. In fact, the Dharmasena case is on all fours with the present case, although there the indictment also contained a count of murder on which the appellant co-conspirator’s conviction was affirmed.

The criminal law in England on this matter is no longer a matter of common law but is governed by s. 5(8) of the Criminal Law Act, 1977, under which a conspirator tried together or separately with a co-conspirator may stand convicted notwithstanding that the latter has been acquitted “unless under all the circumstances of the case his conviction is inconsistent with the acquittal of the other person”. If such a statute were applicable

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here, it would be my opinion that the case would be governed by the qualifying clause above‑quoted: see Williams, Textbook on Criminal Law (1978), at pp. 361-2.

I do not find it necessary in the present case to go beyond its facts in dealing with the law. Hence, I put to one side such questions as whether the rule I would apply should govern where two charged as conspirators are jointly indicted but tried separately. In Director of Public Prosecutions v. Shannon[3], the House of Lords rejected the technically-based rule that inconsistency on the record should apply to exculpate a conspirator who pleaded guilty when the co-conspirator, separately tried, was acquitted. This, of course, is not the present case.

Necessarily, the House of Lords in Shannon examined a variety of situations involving co‑conspirators before coming to its conclusion on the issue immediately before it. Although the five Law Lords were unanimous in the result on the specific issue in appeal, there was no unanimity on some other situations that were canvassed. One of these was that in the Dharmasena case, already mentioned. Lord Morris of Borth-y-Gest, who spoke for Lord Reid as well as for himself said this, at p. 754:

If, as in Dharmasena s case, two people are tried together for conspiring with each other and are convicted and if they can and do appeal and if for any reason a new trial can be ordered I express no disagreement with the view expressed in Dharmasena’s case that the order for a new trial should be of both.

Viscount Dilhorne treated the Dharmasena case as one involving separate trials and therefore rejected the view there taken, but in fact the two alleged co-conspirators were jointly tried and convicted. It was only because, on appeal from the convictions, a new trial was ordered for one that an issue of the appellate court’s decision affirming the conviction of the other was questioned. In such circumstances, I am unable to appreciate the view

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that the two were separately tried; the plain fact is that they were not. In Dharmasena, as in the present case, the flaw in the application of the law rested on the appellate court’s untenable differentiation in ordering a new trial for one alleged conspirator while at the same time affirming the conviction of the other. Lord Simon of Glaisdale rejected what I may call the Dharmasena view but only where there was a significant differentiation of evidence against each of two conspirators jointly indicted and jointly tried. If the evidence against each was substantially the same, in his view a trial judge could be expected, as a matter of common sense, to tell the jury that unless they were sure that both alleged conspirators were guilty, they should both be acquitted. Lord Salmon was more understanding of the anomaly in convicting one of two alleged conspirators on a joint trial while acquitting the other. I quote his words, at p. 772:

If A and B are tried together for conspiring with each other and with no one else, the judge should nevertheless, in all save the most exceptional cases, continue to direct the jury that they should convict or acquit both, that is to say, they cannot convict the one and acquit the other. This may not accord with strict logic. The law does not, however, rest wholly upon logic but more upon experience and common sense. Theoretically it is, no doubt, possible that the evidence in respect of A might be so different from the evidence affecting B that a verdict against A of conspiring with B might be justified whilst a verdict against B of conspiring with A would not be justified. In practice, however, this does not happen save in the rarest of cases. Accordingly when A and B are charged with conspiring with each other and no one else it would, as a general rule, be highly undesirable for the trial judge to recite the usual formula about the jury’s duty of considering the evidence against each of the accused separately. In such a case it would be particularly difficult for a jury to perform this intellectual feat. Even if there were a confession by A and only slight evidence against B, I doubt whether, whatever the judge might tell them, the jury would convict A and acquit B. They would still convict or acquit both. In such a case, however, it would be the duty of the judge to direct the jury that A’s confession was no evidence at all against B.

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The respect to be paid to decisions of the House of Lords will be well met in the present case by subscribing to the views expressed by Lord Porter in the Dharmasena case which, if any composite view at all can be gleaned from the separate reasons in Shannon, stands unaffected by the latter case. In any event, Dharmasena accords with my own view of what the law should be on the situation presented there and paralleled here.

In the present case, the acquittal of Muzard upon his second trial appeared to be influenced by the fact that the Guimond statement (which as Crown evidence would be hearsay as the Muzard) was excluded. I do not think that the fact that in the Baron and Wertman case the statement of Baron was held admissible for limited purposes against Mrs. Wertman as well as being admissible against Baron offers any basis for distinguishing that case from the present one. Indeed, in the result in the Baron and Wertman case, where the two accused were charged with conspiring with others as well as with each other, the order for a new trial covered both accused since there was no evidence to support a finding that either of the accused conspired with another but not with each other. I can see no ground upon which it would be proper in a case like the present one to deny a retrial to Guimond when his statement is not admissible against Muzard but to grant it as in the Baron and Wertman case because of a statement there admissible against both.

Nor is it, in my opinion, open to say that the present case is one where the two accused should be treated as if separately tried. They were not; and to use the retrial of Muzard as a separate trial is to beg the very question raised by the joint indictment, the joint trial, the joint conviction and the joint appeal in which Muzard alone was given a new trial.

I would allow Guimond’s appeal, set aside the judgments below and direct a new trial.

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

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal of the Province of Quebec affirming the conviction of the appellant on a charge of conspiracy with Roger Muzard to abduct the family of the manager of the Caisse Populaire at Ste-Hélène-de-Bagot in Quebec and to extort a sum of money from the Caisse Populaire through such means.

The two alleged conspirators were tried together in September 1975 before Mr. Justice Reeves of the Superior Court sitting with a jury and both were convicted at trial. On appeal by both accused to the Court of Appeal, Guimond’s appeal was dismissed while the appeal of Muzard was allowed and a new trial directed in this case before a judge sitting alone.

Before the jury was impanelled at the first trial where the two accused were jointly indicted, both the appellants moved for separate trials and reference was particularly made to the intention of the Crown to produce a written statement given to the police by Guimond which clearly implicated Muzard in the conspiracy. This motion was, however, refused and at the joint trial which ensued Guimond’s statement to the police was admitted in evidence after the holding of a voir dire, but he proceeded to give contrary evidence to the effect that the whole scheme was his idea alone and Muzard had never agreed to anything concerning it and in fact had objected strongly to the whole plan. The Guimond testimony at trial was in direct conflict with his written statement and if the jury had believed it they would no doubt have acquitted both the accused of conspiracy. The conviction of both clearly indicates that the jury believed the written statement and found Guimond’s testimony to be untrue although it coincided in large measure with the evidence of Muzard.

In charging the jury the trial judge instructed them that Guimond’s written statement was not evidence against Muzard, but the Court of Appeal

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was of opinion that this direction was not enough under the circumstances and that it would be difficult to imagine a jury of laymen being able to separate the contents of the statement from the effect that its introduction would have had on them when considering Muzard’s case as the allegation that Guimond had conspired with Muzard would readily invite the conclusion that Muzard had in fact in turn conspired with him. In granting a new trial to Muzard, the Court of Appeal was clearly of opinion that separate trials should have been ordered in the first place.

In this regard I prefer to use the language employed by Mr. Justice Bélanger speaking on behalf of the Court of Appeal when he said at pp. 624-625 [of case]:

[TRANSLATION] However, it is difficult to imagine that, in the same trial, the jury could accept as true Guimond’s confession that he was guilty of an illegal agreement with Muzard, without coming to the same conclusion towards the latter, or at least without all other evidence presented by the Crown being thereby coloured in the sense of such an illegal agreement, regardless of Guimond’s and Muzard’s denials.

It would undoubtedly have been preferable for Muzard’s counsel to renew his request for a separate trial at the time the confession was admitted in evidence, but I feel this is a case where the Court should have acted proprio motu; especially if one recalls that at the time of his first decision the judge had not yet read the statement, and based himself to some extent on the uncertainty in which the Crown had left him regarding the production of the document.

As I cannot conclude, without a reasonable doubt, that in a separate trial the jury would have come to the same conclusion on the first count of the indictment, I consider that appellant Muzard is entitled to a separate new trial on this count.

At Muzard’s second trial the evidence at his first trial was by agreement accepted as the record together with the evidence of two witnesses who testified as to his good character subject, of course, to the objection as to the admissibility of the Guimond statement. The course of the proceedings is to some extent clarified in the following paragraph from the reasons for judgment of the trial judge at Muzard’s second trial:

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[TRANSLATION] GUIMOND and MUZARD having appealed against their conviction, the Court of Appeal, on the nineteenth (19) of July, one thousand nine hundred and seventy-six (1976), unanimously dismissed GUIMOND’s appeal, and by two (2) votes to one (1), allowed MUZARD’s appeal, ordering in his case that a new trial be held before a judge sitting alone, on the ground that from the time GUIMOND’s confession was admitted in evidence at the joint trial of the accused before a jury, MUZARD was entitled as of that moment to a separate and distinct trial.

Realizing the difficulty and possible injustice that might have arisen from the introduction of the Guimond statement at a joint trial before a jury, the same trial judge made it clear that he was not accepting it as evidence against Muzard. In this regard he said, at p. 658:

[TRANSLATION] I am not called upon to decide here whether GUIMOND’s confession was free and voluntary. I shall simply say that it is inadmissible in evidence against MUZARD for two (2) reasons:

First, because this statement or confession is subsequent to the carrying out of the conspiracy with which the accused is charged, and,

Second, because in the context of the new trial ordered by the Court of Appeal, precisely because this statement proved to be prejudicial to MUZARD, GUIMOND became a competent and compellable witness for the Crown as well as for the defence. He was not called to testify for the Crown.

In the result Muzard was acquitted at his second trial while Guimond remained convicted of having conspired with him and it is this circumstance which gives rise to the present appeal although the acquittal took place at a time subsequent to the judgment of the Court of Appeal and this circumstance therefore forms no part of the reasons for judgment under appeal.

It is not, in my view, necessary to review the facts further in order to disclose the questions of law to which they give rise which are: (1) whether when an appeal is taken by two persons who had been jointly tried and convicted of conspiracy, it is an error for the Court of Appeal to allow the appeal of one of them and direct a new trial for him alone, or whether under such circumstances a new trial should be directed against both jointly;

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and (2) whether the acquittal of Muzard at his second trial should be given the effect of a finding that there was no conspiracy and that his fellow conspirator must also go free.

The case law in England and in this country, in conformity with the age old procedure whereby review in such cases could only be held by Writ of Error, was for many years dominated by the rule that the court was limited to a consideration of errors appearing on the face of the record and it was frequently held, on this basis, that in conspiracy cases where two parties only were charged and the record disclosed the acquittal of one, the other must be acquitted even in the face of a plea of guilty. The case of R. v. Manning[4] is often referred to as the leading authority for the proposition that where conspirators are tried jointly it is an error to instruct the jury that one may be found guilty and the other acquitted. In that case, Mathew J. expressed what he described as “an imperative rule of law” in the following terms at p. 243:

The rule appears to be this. In a charge for conspiracy in a case like this where there are two defendants the issue raised is whether or not both the men are guilty and if the jury are not satisfied as to the guilt of either then both must be acquitted.

This proposition was clearly stated in the case of R. v. Plummer[5] where Mr. Justice Dickens, at pp. 340 and 341 put the matter succinctly when he said:

The law is clear that, when several persons are tried together on a joint indictment for conspiracy, and one is convicted and the rest acquitted, the conviction of the one is bad, because the record when made up on the indictment is repugnant and inconsistent on the face of it.

Mr. Justice Bruce expanded the same proposition at p. 347 and 348 in the following terms:

…and I think it logically follows from the nature of the offence of conspiracy that, where two or more persons

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are charged in the same indictment with conspiracy with one another, and the indictment contains no charge of their conspiring with other persons not named in the indictment, then, if all but one of the persons named in the indictment are acquitted, no valid judgment can be passed upon the one remaining person, whether he has been convicted by the verdict of a jury or upon his own confession, because, as the record of conviction can only be made up in the terms of the indictment, it would be inconsistent and contradictory and so bad on its face. The gist of the crime of conspiracy is that two or more persons did combine, confederate, and agree together to carry out the object of the conspiracy.

It seems to me that it matters not whether that trial of A., B., and C, took place at the same time or not, so long as they are charged upon one indictment. Only one record can be drawn up based upon that indictment.

The passage which I have italicized clearly indicates that the Plummer case, like all those upon which it was based, is founded on the rule arising out of the procedure by way of Writ of Error to which I have referred and it will be seen that the learned judge last quoted was of opinion that the same considerations applied whether the conspirators were tried jointly or separately so long as they are all charged in the same indictment.

In this country as recently as 1972 the same reasoning was adopted by Mr. Justice Jessup in the Court of Appeal of Ontario in the case of R. v. Funnell[6] where he said, at p. 217:

But the law is settled that if two are accused of conspiracy and are tried together, the acquittal of one must result in the acquittal of the other.

And later at p. 218 in the same case, Mr. Justice Jessup said:

In my view the technical basis in the result in the Plummer case is still good law.

but further at p. 220 the same judge said:

Accordingly it may be the law should be altered by Parliament or the Supreme Court of Canada. However in a matter involving the liberty of the subject 1 do not feel at liberty to refuse to apply a principle of the common law of so ancient an origin, particularly when another appellate court of this country has acted on the principle for the benefit of a subject. Moreover in a

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criminal matter it is of little force to say that a defence is technical because all criminal law is technical.

The observations contained in these passages appear to me to be at odds with what was said by Mr. Justice Spence, speaking for a majority of this Court in Koury v. The Queen[7], where he had occasion to comment on the changed approach to be adopted by courts of appeal since the abolition of the writ of error at p. 217:

That theory of inconsistent verdicts grew up at common law. I can well understand its application before the constitution of a Court of Criminal Appeal when the only mode of review, apart from the Court of Crown Cases Reserved, was the Writ of Error, which brought before the reviewing tribunal only the indictment, the plea and the verdict. With a vitiating inconsistency appearing on the face of this limited record, all that the Court of Queen’s Bench could do was to quash the conviction.

In that case Mr. Justice Spence was considering inconsistency allegedly created by the acquittal of an accused on a charge of conspiracy and at the same time a conviction for the substantive offence. In the course of his reasons for judgment, Mr. Justice Spence made it abundantly clear that the old rule of inconsistent verdicts was no longer binding on this Court. At p. 218 of the report he said:

To give effect to this submission would be to ignore the common sense of the trial. Courts of Appeal do not now operate under 19th-century procedural limitations. On the evidence that we can now examine, the error, if any, is in the acquittal on the charge of conspiracy and not in the conviction on the substantive offence. We can say with the assurance that on this record, which includes the whole of the evidence, the judge’s charge and the objections of the defence counsel to the charge, that this man was properly convicted and that his acquittal on conspiracy does not vitiate this conviction or give rise to any substantial wrong or miscarriage of justice. We are not compelled to defer to this acquittal for the purpose of quashing the conviction on fraud. We are not engaged in a process of logic chopping and we are entitled to look at the facts behind the record of the acquittal.

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The case of Director of Public Prosecutions v. Shannon[8], to which further reference will be made hereafter, contains a lengthy exposition of the history of the old cases and the approach adopted by Mr. Justice Spence finds strong support in the following passage from the reasons for judgment of Lord Morris at p. 749:

In days when any review of convictions in criminal cases involved bringing the record before the court it was assumed that if there was an apparent inconsistency on the face of the record then that must have been the reflection or the consequence of some error. The error could then be corrected. I say apparent inconsistency because if the charge was that A and B (and no others) conspired together and if the record showed that one was found guilty and the other not guilty it need not logically have been inferred that there necessarily was inconsistency. The case against A might have been proved while the case against B had not. On the other hand, when only the record was available and when the apparent inconsistency very probably or possibly reflected a real inconsistency the fair course was to decide that there was error which called for correction… The procedure upon a writ of error was cumbersome because though on the record there was the formal history of the case (the arraignment, the plea, the issue and the verdict) it took no account of some of the most material parts of the trial where error was most likely to occur—viz., the evidence and the direction of the judge to the jury. So the writ could do nothing to remedy the only errors that were really substantial.

Finally, Lord Salmon in the same case at p. 771 says of the old rule:

The rule was, no doubt, acceptable when the writ of error afforded a wrongly convicted man his only remedy. That writ was, however, abolished, because its preservation was no longer necessary. Indeed, long before it died it had become moribund. The rule which drew its life’s breath from the writ naturally expired with it. It was, however, perhaps impossible for the courts to notice its demise until this House pronounced it to be dead. My Lords, I suggest that this pronouncement should now be made.

It follows that, in my view, Rex v. Plummer… should be overruled and many of the dicta in… Dharmasena v. The King [1951] A.C. 1… can no longer be accepted.

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In the case of Dharmasena[9] two accused were tried together in Ceylon. One count of the indictment against them charged both with conspiracy to murder the husband of one of them, and both were found guilty on this count by the jury. On appeal the conviction of the wife was set aside and a new trial ordered in her case although the conviction of her alleged co‑conspirator was upheld. On the re-trial the wife was acquitted and her companion’s appeal was based on the old rule that the wife’s acquittal involved the acquittal of her companion. This contention was upheld in the Privy Council where Lord Porter said of the wife’s acquittal:

Their Lordships think that the proper course is to treat her acquittal as a disposal of the charge of conspiracy and as involving the acquittal of the appellant also on that charge.

As I have indicated, the Shannon case disapproved this conclusion although Lord Morris, speaking for himself and Lord Reid, observed that:

If, as in the Dharmasena case, two people are tried together for conspiring with each other and are convicted and if they can and do appeal and if for any reason a new trial can be ordered I express no disagreement with the view expressed in Dharmasena’s case that the order for a new trial should be of both.

These observations were not necessary for the determination of the issue in Shannons case where one accused being then represented by a solicitor and counsel had pleaded guilty to a count charging him and another alone with conspiracy with each other and no one else but his alleged co-conspirator having pleaded not guilty at a separate trial was acquitted. In that case the Court of Appeal feeling itself bound by the old rule as stated in such cases as Plummer, supra, quashed the conviction notwithstanding his plea of guilty on the ground that it could not stand in light of the acquittal of his alleged co-conspirator. This judgment was reversed in the House of Lords where, as I have indicated, the old rule was finally pronounced “to be dead”. In the course of his reasons

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for judgment in the Shannon case, Lord Simon had occasion to refer at p. 767 to a situation closely akin to that in the present case. He there said, speaking of two conspirators A and B:

A may have made a full written confession which is evidence against himself but not against B; and yet, according to the rule as heretofore applied, B’s acquittal exculpates A too. Such absurdities bring the law into discredit, and mean that rogues escape society’s sanctions. This is only to be borne if necessary to ensure that no one is unsafely or unsatisfactorily convicted; but the rule is no longer required for that purpose.

The members of the House of Lords were, however, not unanimous in the reasons which led them to the same conclusion in that Lord Morris with whom Lord Reid agreed and Lord Salmon indicated his assent, advanced the view that where only two persons alone are charged and tried jointly with conspiracy, the trial judge should direct the jury “In all save the most exceptional cases that they should convict or acquit both,…” (per Lord Salmon, at p. 772).

In expressing the view that it would be illogical to instruct the jury otherwise, Lord Morris said at p. 754:

If I am right in my view that, where there is a charge of conspiracy against A and B (the charge not alleging any conspiracy with anyone else) and where A is first separately tried and pleads or is found guilty and where B is later separately tried and acquitted, such acquittal does not of itself warrant setting aside the conviction of A—should the same reasoning which supports this view also lead to the conclusion that if A and B are tried together but if the evidence is strong against one but weak or lacking in the case of the other a permissible result could be that one would be convicted and the other acquitted?

Here the force of logic comes into collision with what Mathew J. called “an imperative rule of law” and with what Lord Coleridge, C.J. called an “established rule of practice.” Though the “rule,” whether it be called a rule of law or of practice, came into existence with the historical background to which I have alluded, I think that the rule has much to commend it where it is related to a case where a jury has to consider (in the circumstances under consideration) whether to return similar

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verdicts in the cases of A and B or whether to return different verdicts. Though by a clear direction a jury could have explained to them the process of thought that they should apply in their deliberations, any jury might feel embarrassed and might well be perplexed in sorting out the reasoning that would enable them to say that they were fully satisfied in A’s case that A conspired with B (with its corollary that in A’s case they were fully satisfied that B conspired with A) and yet also to say that in B’s case they were not satisfied that B conspired with A. In the administration of the criminal law it is particularly desirable that complications and subtleties should if possible be avoided. A “rule” which at least at first sight would appeal to many as having the backing of common sense ought not lightly to be jettisoned. I consider, therefore, that in the situation posed it would be wiser to adhere to the “rule” and that summings up should give effect to it.

It does not appear to me to be likely that the last quoted passage can have been intended to envisage a situation such as we have here where one of the conspirators has made a confession that is inadmissible against the other but it is in any event apparent that Lord Morris fully appreciated the considerable difficulty facing any trial judge in a charge to the jury, at the joint trial of two conspirators where the evidence is not the same against each of them. I do not take the view that Lord Morris dissented from the proposition that where the evidence is substantially different as between two jointly charged conspirators, it is desirable that they be tried separately. In this regard, I share the view expressed by Viscount Dilhorne at p. 761 where he said:

Ordinarily where two persons are tried together when charged with conspiring together and with no one else and there is no material difference in the evidence admissible against each, the result will be that either both will be convicted or both acquitted. In such cases there is really no need for, and no need to question, the long-established rule.

In some cases, however, the weight of the evidence admissible against conspirator A may be far greater than that admissible against conspirator B. A, for instance, may have made a statement admissible against him and not against B, which goes a long way to proving his guilt and B may have made no such statement. In every case, before a man charged with others is convicted, a judge must direct the jury to consider the evidence

[Page 977]

admissible against him separately for surely it is a fundamental principle of English law that no man is to be convicted save on proof of his guilt beyond reasonable doubt by evidence admissible against him. I see no justification for any departure from this, I think, well-established practice in cases of conspiracy where only two are charged with that offence. It is adhered to where there are a greater number of conspirators and I think that it would be highly undesirable that a departure from it should be approved where two only are so charged.

If a jury are not satisfied of B’s guilt but are satisfied of A’s, has a judge to direct them that even though satisfied of A’s guilt, they must acquit him if they acquit B? It is said that a jury would not be able to understand a direction that they could find one conspirator guilty and also acquit the man with whom he is charged with conspiring. Whether or not that be so—and I doubt it—I do not think that a jury would think the law was anything but a nonsense if after they have been told that they must consider the evidence against each of the accused separately, they must, even though satisfied of A’s guilt, acquit him if they think that the evidence is insufficient to convict B.

If it were necessary in this case to decide whether or not the long-established rule was now obsolete, it is these considerations which would incline me to holding that it was, the foundation for it having gone and the court now being able to ascertain what happened at the trial.

I think it can be taken, that where only two persons are charged with conspiracy and they are separately tried whether or not they are separately indicted, the conviction of one is not necessarily invalidated by the acquittal of the other.

In the present case, I am satisfied that the Court of Appeal was correct in ordering a new and separate trial for Muzard whose motion to that end was in my view wrongly refused by the trial judge. The statement made by Guimond to the police after the conspiracy had been aborted was totally inadmissible against Muzard for any purpose and yet the nature of the other evidence tendered against him, coupled with the fact of his acquittal when the statement was found irreceivable at his trial, satisfy me that he was convicted at the first trial on the basis of this inadmissible evidence. On its face the Guimond statement

[Page 978]

clearly inculpated Muzard in the conspiracy and in the circumstances of the present case, however often a jury had been told that it was evidence against Guimond alone, it could never have been said with assurance that one or more of the jurors did not convict Muzard on the basis of that statement.

The case of Shannon is discussed in the reasons for judgment delivered by Mr. Justice Martin on behalf of the Court of Appeal of Ontario in R. v. Baron and Wertman[10]. In that case Mrs. Wertman and the man with whom she was living (Baron) were jointly charged with conspiracy to murder her husband. Baron had made a statement to the police the effect of which was that Mrs. Wertman had shot her husband and had asked Baron to “get rid of the body”. This statement was read over by Mrs. Wertman and evidence of the statement and her reaction to it were introduced at the joint trial as to admissibility of this evidence, Mr. Justice Martin said at pp. 541-542:

Notwithstanding, as has been pointed out, that there is no evidence upon which a jury could find that Mrs. Wertman accepted Baron’s statement by her words or conduct, I am of the view that the statement, in strict law, was admissible, albeit for a limited purpose, if she had been granted a separate trial. Evidence may be admissible for one purpose although inadmissible for another: see Wigmore on Evidence, 3rd ed., vol. 1 (1940), pp. 299-303.

(The italics are my own.)

In Director of Public Prosecutions v. Christie (1914), 10 Cr. App. R. 141, [1914] A.C. 545, which constitutes the foundation of the modern law governing the admissibility of statements made in the presence of the accused, the House of Lords held that evidence of an incriminating statement made in the presence of an accused is admissible notwithstanding that there is no evidence from which it could be inferred that the accused acknowledged the truth of the statement or any part of it, if the conduct and demeanour of the accused on hearing the statement are relevant facts in the case (at pp. 160 and 166). If, however, the evidential value of the conduct and demeanour of the accused on hearing the statement is slight and the prejudicial effect of the statement is great, the trial Judge has discretion to exclude it: Director of Public Prosecutions v. Christie, supra, at pp. 161 and 165.

[Page 979]

In the present case Mrs. Wertman’s reaction on reading Baron’s statement was relevant and admissible, but such reaction would not be fully intelligible without reference to the statement to which she was responding and the jury was therefore entitled to consider them together.

Mr. Justice Martin also said at p. 533:

The learned trial Judge correctly instructed that although the general rule was that statements made by an accused were evidence only against the accused making the statement, the rule was subject to the exception that if the jury found a conspiracy, the acts and declarations of one conspirator in furtherance of the conspiracy were admissible against a co-conspirator. Nowhere, however, did he instruct the jury that the rule did not make admissible against a co-conspirator a mere narrative account of past events by one conspirator, even if made during the continuance of the conspiracy.

In holding that the Baron statement was admissible against Mrs. Wertman for the limited purpose of considering her reaction to it Mr. Justice Martin said at p. 541:

It was contended before us on behalf of Mrs. Wertman, that there being no evidence upon which a jury could find that she had adopted Baron’s statement so as, in effect, to make it her own, it was inadmissible as against her and since it was highly-prejudicial, a separate trial should have been ordered to ensure her a fair trial. This argument proceeded on the basis that Baron’s statement was not admissible as against her and would not have been admissible on a separate trial.

On this branch of the case, the learned judge concluded that Mrs. Wertman’s reaction on reading Baron’s statement was relevant and admissible, and that such reaction would not be fully intelligible without reference to the statement to which she was responding and the jury was therefore entitled to consider them together.

Having found that there was misdirection at the trial in that the trial judge failed to fully explain the legal significance of the Baron statement, the learned trial judge concluded with the following reference to the Shannon case at pp. 552-553:

[Page 980]

Order to be made

Mr. Scullion, for the Crown, argued that, in the event the Court concluded that a new trial must be had for Mrs. Wertman on the ground of the misdirection to which reference has been made (a result which he strenuously opposed) the conviction of the appellant Baron ought none the less to be sustained.

In Director of Public Prosecutions v. Shannon (1974), 59 Cr. App. R. 250, the House of Lords, overruling earlier decisions to the contrary, unanimously held that if two persons are charged with conspiracy with each other and with no other person, and are tried separately, the conviction of one is not invalidated by the subsequent acquittal of the other. However, Lord Morris (Lord Reid concurring) also expressed the view that it is highly desirable that where there is a charge of conspiracy against two persons they should be tried together, and that if two people are tried together and convicted, and they appeal, if for any reason a new trial is ordered, the new trial should be for both. Lord Morris and Lord Reid were also of the view that where A and B are charged with conspiracy with each other and with no one else and are tried together, the trial Judge should direct the jury that they cannot convict one and acquit the other. Lord Salmon also considered that such a direction should be given save in the most exceptional cases.

In the present case the appellants were charged with conspiracy with each other and with others. If there was any evidence upon which a jury could find that either of the appellants had conspired with some person or persons but not with each other, the logic of the view expressed by Lord Morris might not require the order for a new trial to apply to both appellants. In my view, however, the record is devoid of evidence upon which a jury reasonably could find that either of the appellants conspired with some other person or persons to murder Isaac Wertman, but not with each other.

In my view the appeal of Mrs. Wertman must be allowed for the reasons previously stated. The jury did not arrive at a verdict of guilty without experiencing some difficulty. Misdirection which may have affected the verdict with respect to her must, in the particular circumstances of this case, have also prejudiced Baron since the jury could not reasonably have acquitted her and convicted him of conspiracy. I am accordingly of the view that in the circumstances the order for a new trial should apply to both appellants.

The difficulties which have arisen in this case illustrate the wisdom of the remarks of Meredith, J.A., in R. v. Goodfellow (1906), 10 C.C.C. 424 at p. 431, 11 O.L.R. 359, with respect to the undesirability of charg-

[Page 981]

ing the offence of the conspiracy to commit a crime where there is no evidence of the conspiracy except such as proves the actual commission of the crime.

In the result, being of the opinion that the verdict must be set aside, I would allow the appeals, set aside the convictions, and order a new trial for both appellants.

It will be seen that the Baron and Wertman case is clearly distinguishable from the present circumstances in that the statement there in question was admissible against both the alleged co-conspirators albeit that its admissibility against Mrs. Wertman was for a limited purpose. Whereas the statement in the present case was totally inadmissible against Muzard for any purpose. This distinction is clearly noted in the following passage from the reasons for judgment of the learned judge who spoke for the Ontario Court of Appeal in that case where he said at p. 543:

Because of the view which I have taken with respect to the admissibility, in the circumstances, of Baron’s statement of June 6th, to show Mrs. Wertman’s conduct and demeanour in response to it, it is unnecessary to examine the authorities with respect to the granting of separate trials where one accused has made a statement incriminating a co-accused in circumstances in which such statement is inadmissible for any purpose in relation to the latter.

I would, therefore, not give effect to this ground of appeal.

The wrongful admission of the Guimond statement before Mr. Justice Reeves and the jury, in my view, clearly justified the order for the separate trial of Muzard which was made by the Court of Appeal of Quebec.

I have already expressed the opinion that when two alleged co-conspirators are tried separately the acquittal of one does not necessarily invalidate the conviction of the other. I am of the opinion also that, whenever it is apparent that the evidence at the joint trial of two alleged co-conspirators is substantially stronger against one than the other, the safer course is to direct the separate trial of each and this is particularly the case when the prosecution is tendering in evidence a damaging statement made by one under circumstances which made it inadmissible against the other.

[Page 982]

The old rule as to the effect of inconsistent verdicts is sometimes said to subsist in cases where the same or substantially the same evidence is admissible against the jointly tried conspirators. In such an event it would be illogical to acquit one and convict the other but this does not appear to me to be because of the force of any “imperative rule of law” stemming from the existence of inconsistency on the face of the record but is rather the logical result of the evidence having established the guilt or innocence of both the alleged co-conspirators.

For all these reasons as well as for those delivered by Mr. Justice Bélanger in the Court of Appeal of Quebec, I would dismiss this appeal.

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

Solicitor for the appellant: J.P. Sénécal, St-Hyacinthe, Quebec.

Solicitor for the respondent: Denis Robert, St-Hyacinthe, Quebec.

 



[1] [1951] A.C. 1.

[2] (1976), 31 C.C.C. (2d) 525.

[3] [1975] AC. 717.

[4] (1883), 12 Q.B.D. 241.

[5] [1902] 2 K.B. 339.

[6] (1972), 6 C.C.C. (2d) 215.

[7] [1964] S.C.R. 212.

[8] [1975] A.C. 717.

[9] [1951] A.C. 1.

[10] (1976), 31 C.C.C. (2d) 525.

 

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