Supreme Court Judgments

SUPREME COURT OF CANADA

Vézeau v. The Queen, [1977] 2 S.C.R. 277

Date: 1976-04-01

Léo Vézeau Appellant;

and

Her Majesty The Queen Respondent.

1975: November 26; 1976: April 1.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law — Evidence — Alibi defence — Failure of accused to testify — Instructions to the jury — Mention by judge that no conclusion unfavourable to the accused may be drawn from his failure to testify — Canada Evidence Act, R.S.C. 1970, c. E-10, s. 4(5).

Appeal — Acquittal at trial — Error of law — New trial ordered — Criminal Code, R.S.C. 1970, c. C-34, ss. 613(1), (4), 618(2).

The appellant, who was charged with non-capital murder, was tried before a judge and jury, and was acquitted. He presented an alibi defence at the trial but did not testify himself. In giving his instructions to the jury the judge said that they could not draw any conclu­sion unfavourable to the accused from the fact that he had not testified. The Court of Appeal allowed the Crown's appeal, which was based on the contention that this instruction constituted an error of law, and ordered a new trial. Hence the appeal to this Court.

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

Per Martland, Judson, Ritchie, Spence, Pigeon, Beetz and de Grandpré JJ.: Although s. 4(5) of the Canada Evidence Act provides that the failure of a person charged to testify shall not be made the subject of comment by the judge, it does not authorize a trial judge to direct a jury that they cannot draw their own conclu­sions from the fact that the accused did not testify. In fact it is open to a jury to draw a logical inference from the failure of the accused to testify, particularly in a case in which it is sought to establish an alibi. Accord­ingly the trial judge's direction constituted an error of law and justified the appeal.

Section 613(4) of the Criminal Code, which deals with the powers of the court of appeal on an appeal from an acquittal, contains no provision similar to s. 613(1), which states that where there is an appeal against a conviction, the court of appeal may dismiss the appeal notwithstanding that it is of the opinion that

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there has been a wrong decision of law in the trial court, if the court is of the opinion that no substantial wrong or miscarriage of justice has occurred. However, this Court has already recognized that, in an appeal from a verdict of acquittal, there were grounds for applying the test defined in White [1947] S.C.R. 268, and that it was the duty of the Crown to satisfy the Court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury. The Crown fulfilled its duty in the case at bar: the failure of an accused person, who relies upon an alibi, to testify and thus to submit himself to cross-examination is a matter of importance in considering the validity of that defence. The jury, in this case, was instructed that they could not take that fact into account.

Per Laskin C.J. and Dickson J., dissenting: There may have been error in telling the jury they could not draw an unfavourable inference from failure to testify. However, although this error was prejudicial to the Crown, it was not such as to warrant a new trial, unless the Crown could satisfy the Court with a substantial degree of certainty that the jury would necessarily have convicted the accused in the absence of the offending words. An examination of the evidence in the case at bar does not allow us to reach any such conclusion. If the case turned only on alibi, the appeal would have to be dismissed, but this does not obtain. Alibi was a second­ary defence, primarily the case for the accused rested upon the frailty of the evidence of identification. The evidence was far from strong and positive and it is not surprising that after hearing it the jury entertained a reasonable doubt as to appellant's guilt. It is by no means evident that this short sentence buried in a charge extending through twenty-eight pages of transcript may have changed the jury's verdict had it not been spoken.

[White v. R., [1947] S.C.R. 268; R. v. Gauthier, [1977] 1 S.C.R. 441, followed; R. v. Comba (1938), 70 C.C.C. 205; Coffin v. R. (1955), 21 C.R. 333; Corbett v. R., [1975] 2 S.C.R. 275; McConnell and Beer v. R., [1968] S.C.R. 802; Avon v. R., [1971] S.C.R. 650; R. v. Paquette (1975), 19 C.C.C. (2d) 154, referred to.]

APPEAL from a decision of the Court of Appeal of Quebec[1], quashing a verdict of acquittal handed down by a jury and ordering a new trial. Appeal dismissed, Laskin C.J. and Dickson J. dissenting.

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Lawrence Corriveau, Q.C., for the appellant.

Francois Tremblay, for the respondent.

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

DICKSON J. (dissenting)—The appellant Vézeau was acquitted on a charge of non-capital murder after a five-day trial before Mr. Justice Marcel Crête and jury at the City of Quebec. The Crown appealed the verdict. The Court of Appeal for Quebec unanimously allowed the appeal and ordered a new trial. The appeal comes before this Court pursuant to s. 618(2)(a) of the Criminal Code which gives a person who is acquitted of an indictable offence and whose acquittal is set aside by the Court of Appeal a right to appeal to the Supreme Court of Canada on a question of law.

The accused was charged with the murder of Roland Huard on October 2, 1969. The murder occurred in a Quebec restaurant, "L'Oasis", in Quebec City. Huard was shot to death. The appeal and the new trial rest upon consideration of the effect of the following passage in the judge's charge to the jury:

[TRANSLATION] After you were sworn in as jurors, I pointed out to you that in our criminal law, the accused before the Court is presumed to be innocent. Not only must the Crown prove the accused guilty beyond all reasonable doubt, but the accused himself does not have to establish his innocence. Neither is he required to testify in his own defence. In this case the accused did not testify. You may not draw from this fact any conclusion unfavourable to the accused.

Section 4(1) of the Canada Evidence Act, R.S.C. 1970, c. E-10 provides that every person charged with an offence is a competent witness for the defence. Subsection (5) of the same section provides that the failure of the person charged to testify shall not be the subject of comment by the judge or by counsel for the prosecution. The purpose of this latter subsection is not obscure. An accused person enjoys the presumption of inno­cence, and the burden of proof beyond reasonable doubt rests upon the prosecution from the beginning

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to the end of the trial. The jury is so instructed in every jury trial involving a criminal charge. Comment upon the failure of the accused to testify might tend to defeat these jural safeguards. As Mr. Justice Ritchie said in McConnell and Beer v. The Queen[2]:

I think it is to be assumed that the section in question was enacted for the protection of accused persons against the danger of having their right not to testify presented to the jury in such fashion as to suggest that their silence is being used as a cloak for their guilt.

In McConnell and Beer v. The Queen the trial judge, in recharging the jury, said:

Gentlemen of the Jury, it was pointed out that in the course of my charge to you I stated that you did not have to accept the explanations of the accused because those explanations were not made under oath. You are not to take it from that that there is any onus upon the accused to prove their innocence by going into the witness box and testifying in their defence. There is no such onus on these or any accused persons in any criminal trial of proving their innocence by going into the witness box and testifying in their own defence. You are not to be influenced in your decision by either of the accused not going into the witness box and testifying, but the Court does point out that these explanations were given and when made were not made under oath and it is not only for that reason alone but for any other number of reasons that may occur to you, to decide if you will accept these explanations.

Mr. Justice Ritchie quoted with approval a passage from the reasons of Mr. Justice Evans in the Court of Appeal, of which the following forms part:

To hold that an accidental slip or an innocuous statement indicating the failure of the accused to testify must ipso facto result in a reversible error does violence to the intent and meaning of the Statute.

I am of the opinion that the impugned statement must be considered solely in the light of possible prejudice to the accused.

This Court in McConnell and Beer held that the remarks of the trial judge viewed in context and on a reasonable interpretation did not amount to a

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comment in breach of the section. The language of the trial judge was taken to be "not so much a 'comment' on the failure of the persons charged to testify as a statement of their right to refrain from doing so."

McConnell and Beer, supra, was followed in Avon v. The Queen[3], in which a majority of this Court held that the following passages from the jury charge did not offend s. 4(5) of the Canada Evidence Act:

The accused did not testify. Evidently, he could have done so. He is not obliged to do so. I must tell you immediately, because it is better to say it, it is not because the accused did not testify that you should believe that he could be guilty. His absence from the witness box, the fact that he did not testify and did not call any witnesses, has nothing to do with the trial. Because you will have to come to your decision only on the well-established principle that the Crown must prove and establish the guilt of the accused.

Actually, you have merely the Crown's evidence. The defense (sic) did not call witnesses, and the accused did not testify: he did not have to. It is up to the Crown to prove its case.

In both of the cases mentioned, one might be forgiven for concluding that the directions to the jury bore some semblance of comment by the judge upon the failure of the accused to testify, but the majority of the Court had regard to the spirit animating the legislation rather than the cold letter of the law and sustained the convictions.

The present case is not one in which the accused seeks to impugn the judge's charge on the ground that the latter commented upon the failure of the accused to testify. That is the situation which usually comes before the courts. Although s. 4(5) of the Canada Evidence Act was enacted, as I have said, to protect the rights of the accused, in the present case the complaint originates with the Crown. The Crown's complaint, of course, does not stem directly from s. 4(5) of the Canada Evidence Act. It is founded on the judge's observa­tion, which followed his comment on the failure of

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the accused to testify, to the effect that the jury could not draw any unfavourable conclusion from failure of the accused to testify.

The judge may well have erred when he drew the jury's attention to the failure of the accused to enter the witness box but we do not have to decide that issue. If there was error, it was error prejudi­cial to the accused. I think also that there may have been error in telling the jury they could not draw an unfavourable inference from failure to testify: Corbett v. The Queen[4], at p. 280; R. v. Steinberg[5]. This error was prejudicial to the Crown but in my opinion it is not, for the reasons which follow, such as to warrant a new trial.

I do not think that the impugned sentence was anything more than an accidental slip, made while the judge was charging upon the presumption of innocence and onus of proof. The words to which objection is taken, save for the short comment on failure to testify, follow immediately upon a cor­rect statement of the law, that the accused does not have to establish his innocence and that he was under no obligation to testify on his own behalf. The final sentence of the paragraph is unfortunate, but I have no doubt it was added by the judge merely to emphasize and underscore his earlier remarks on presumption of innocence and burden of proof.

Not every error by a trial judge is fatal, in the sense of requiring a new trial. An accused appeal­ing reversal of an acquittal does not have the benefit of a curative section such as s. 613(1)(b)(iii), but it is nonetheless clear that in order for a new trial to be ordered the Crown must satisfy the Court with a substantial degree of certainty that the jury would necessarily have convicted the accused in the absence of the offend­ing words. As Kerwin J., as he then was, said in

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Cullen v. The Queen[6], at p. 665:

...the onus is on the Crown to satisfy the Court that the verdict would not necessarily have been the same if there had been no error in law in the trial judge's charge.

For myself, I do not feel any such certainty. As a majority of the Court hold the view that there must be a new trial in this case, I will refrain from commenting upon the evidence beyond that which is necessary in order to elucidate the points I wish to make.

The accused offered an alibi, and it may be that the words of the charge upon which the Crown rely in asking for a new trial gave rise among the members of the jury to the impression that they could not take into account, when assessing the alibi, the failure of the accused to testify. If the case turned only on alibi or if the evidence of identification had been strong and positive, I would dismiss this appeal, but neither obtains. Alibi was not the only defence. Primarily the case for the accused rested upon the fallibility and frailty of the evidence of identification. Three witnesses gave identification evidence during the trial—Miss Ghislaine Gosselin and M. Marcel Robitaille, for the Crown, and Mrs. Jean-Claude Couture for the defence. Gosselin and Robitaille were customers of the restaurant. Both had been drinking in the restaurant prior to the shooting. Couture was the waitress who let the murderer into the restaurant after closing hours.

In evaluating the identification evidence, it is important to take cognizance of the lighting condi­tions in the restaurant and the opportunities for observation. After 2:00 a.m. when the restaurant closed, it was the practice to close the drapes, extinguish all lights except for a blue light and the light from the cigarette machine, and to rely on

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fluorescent light coming from the kitchen at the back of the restaurant. Thus there was a fairly sombre atmosphere interfering with vision, even though the restaurant was small. There was also some grill-work in the restaurant which, it was argued, served also to obscure the view. Miss Gosselin could not identify the murderer full-face, as she had only seen him in profile. She noted that he was about six feet tall, 185-200 lbs., well-built. The only identifying characteristic which she noted was a crease or hollow on the right side of his face near the eye. Gosselin picked Vézeau out of a line-up on January 2, 1970 (the murder occurred October 2, 1969) and identified him in court.

Robitaille had a greater opportunity to view the murderer than Gosselin, as he was confronted by the murderer at a distance of one and one-half feet. He said that he did not recognize the person from this confrontation as he was too nervous, Huard just having been wounded. He recognized the murderer from earlier observation when the latter was seated in the restaurant. He described the murderer as about six feet one inch and well-built. The only identifying characteristic which he pointed out was sideburns. He picked Vézeau out of a police line-up on January 2,1970 and again in court. Robitaille's evidence is contradictory in places, and this fact becomes disturbing in relation to the question of whether the police showed him any photographs prior to the line-up. At trial he said that he saw fifteen photos in November, yet at the preliminary inquiry he said that he saw no photos of Vézeau in November. Whether he was telling the truth or just confused by the questions addressed at trial and at the preliminary inquiry were questions for the jury to determine.

Mrs. Couture, though summoned by the Crown, testified as a defence witness. She described the murderer, whom she let in the door, as six feel tall, 165-175 lbs. (180-190 lbs. at the time of her statement to the police) with dark hair. She did

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not recognize the person in the police line-up, although she said two men resembled the murder­er. Vézeau was not one of those men. She said at trial that she did not recognize him. She was in an equal or better position than Gosselin and Robi­taille to observe the alleged offender.

There is no evidence which links Vézeau to the murder other than that of Gosselin and Robitaille. We have no evidence of motive or any connection between Huard and Vézeau.

The defence led the evidence of Paul Mouffe, manager of a Montreal club, who said that Vézeau was with him on the night of the murder and thus provided an alibi.

The alibi was a secondary defence. Ten pages of the charge were devoted to identification evidence, two pages to the alibi. The primary strategy of the defence was to challenge the identification of Vézeau. This is apparent from the lengthy cross-examination of Gosselin and Robitaille and the examination-in-chief of Couture. It is not surpris­ing that the jury entertained a reasonable doubt as to Vézeau's guilt, for it would have been dangerous to convict on the evidence at trial. The apprehen­sion surrounding uncritical reliance upon identifi­cation evidence was adumbrated in R. v. Spatola[7].

A jury charge should not be anatomized, cut in pieces and examined part by part, as though it were a plant or animal in a laboratory experiment. The charge must be read as whole, together with all of the evidence at trial. No one could take exception to the conduct of the trial by Mr. Justice Crête. The jury charge, apart from the words assailed, was not open to challenge. At the conclu­sion of the charge, the judge asked counsel for their observations. Crown counsel did not take any objection. This case was almost entirely one of fact, dependent upon identification. The narrow point of law raised by the Crown is to be found in

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one short sentence buried in a charge extending through twenty-eight pages of transcript.

In my view, a properly instructed jury could readily have come to a conclusion other than that of guilt of the accused. The accused has stood one trial. Except in a clear case, that should end the matter. I am not satisfied that the jury would not have come to the same verdict if the language complained of had never been spoken.

I would allow the appeal, set aside the judgment of the Court of Appeal and reinstate the jury verdict of acquittal.

The judgment of Martland, Judson, Ritchie, Spence, Pigeon, Beetz and de Grandpré was deliv­ered by

MARTLAND J.—The appellant, who was charged with non-capital murder, was tried before a judge and jury, and was acquitted. The respond­ent appealed to the Court of Appeal of Quebec on various alleged questions of law. The appeal was allowed on the ground that the trial judge had erred in law in the instruction to the jury in the last sentence of the following passage in his charge:

[TRANSLATION] After you were sworn in as jurors, I pointed out to you that in our criminal law, the accused before the Court is presumed to be innocent. Not only must the Crown prove the accused guilty beyond all reasonable doubt, but the accused himself does not have to establish his innocence. Neither is he required to testify in his own defence. In this case the accused did not testify. You may not draw from this fact any conclusion unfavourable to the accused.

A new trial was directed. The appellant appeals from this judgment pursuant to s. 618(2) of the Criminal Code, R.S.C. 1970, c. 34, which provides that a person acquitted of an indictable offence whose acquittal is set aside by the Court of Appeal may appeal to this Court on a question of law.

The case for the Crown was that Roland Huard, who had been seated in a restaurant in the City of

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Quebec, was shot by the appellant, on or about October 2, 1969. Two witnesses were called to identify the appellant as being the person who had killed Huard. The appellant did not give evidence at his trial. The defence called a witness who had been in the restaurant at the time of the killing to testify that the assailant was not the appellant. Another witness was called to establish an alibi, who testified that the appellant had been with him in Montreal during part of the evening when the murder occurred, and that he could not have been Huard's assailant.

Chief Justice Tremblay, who delivered the reasons of the Court, said, after citing the above-men­tioned passage from the charge to the jury:

[TRANSLATION] It is possible that this comment con­travenes s. 4(5) of the Canada Evidence Act (R.S.C. 1952, c. 307). I do not have to come to a decision on this point, since it seems to me that this clearly constitutes an error of law, an improper direction to the jury, who had just been told "The law requires you to obey the judge's directions on the law."

Clearly, the jury has the right to take into account the accused's failure to testify and to draw any logical conclusion.

In R. v. Steinberg (1931 O. R. 222), decided by the Ontario Court of Appeal, Magee J., speaking of the probatory force of evidence offered by defence to sub­stantiate his alibi said (at p. 227):

"The accused did not offer his own evidence, and the jury no doubt had that in mind as well as the bearing of his witnesses."

In the same case, Hodgins J. (p. 230):

"It must not be forgotten that the alibi set up was not verified by the oath of the accused. While it must not be mentioned to the jury that the accused has omitted to testify, it is patent to both Judge and jury that under those circumstances the alibi has a hollow sound."

Finally Middleton J. (p. 236):

"No comment may be made upon this to the jury, but the law does not forbid jurors to use their intelligence and to consider the absence of denial or explanation."

The Supreme Court of Canada upheld this decision (1931 R.S.C. 421) and expressed no disapproval of the propositions of law cited above.

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He also referred to a passage from the reasons for judgment of Middleton J.A. in R. v. Comba[8], at p. 226, and a passage from the reasons for judgment of Rinfret J. in Coffin v. R.[9], at p. 355.

Reference should also be made to the view expressed by Pigeon J., who delivered the reasons of the majority, in Corbett v. R.[10], at p. 280:

Section 4.5 of the Canada Evidence Act provides that the failure of a person charged "shall not be made the subject of comment by the judge, or by counsel for the prosecution", it does not prevent the jury from taking the fact into account without being told. No one can reasonably think that a jury will fail, in reaching a verdict, to take into account the failure of the accused to testify, specially in a case like this. This being so, it is a fact properly to be considered by the Court of Appeal when dealing with the question: "Is this a reasonable verdict?"

Section 4(5) of the Canada Evidence Act, R.S.C. 1970, c. E-10, to which Tremblay C.J. and Pigeon J. refer, provides that:

The failure of the person charged, or of the wife or husband of such person, to testify, shall not be made the subject of comment by the judge, or by counsel for the prosecution.

Tremblay C.J. makes it clear that he was not founding his judgment upon any breach of that provision by the trial judge in his charge. His point is that the subsection does not require or authorize a trial judge to tell a jury that they cannot draw their own conclusions from the fact that the accused has not given evidence. In his opinion, with which I agree, it is open to a jury to draw an inference from the failure of the accused to testify, and, particularly, in a case in which it is sought to establish an alibi.

Counsel for the appellant contended that there was no question of law which warranted the appeal by the respondent to the Court of Appeal, suggest­ing that the only issue at trial was one of fact as to the identification of the appellant as being the person who committed the murder. After analysing

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the evidence, he submitted that the verdict of the jury was correct.

The point is, however, that the decision of the jury was made in the light of an express direction that they must not, in reaching a decision, draw any unfavourable conclusion from the fact that the appellant had not given evidence. As I have indicated, in my opinion this direction was wrong in law, and warranted the appeal made by the respondent to the Court of Appeal.

Counsel for the appellant referred us to two judgments of this Court in McConnell and Beer v. R.[11], and Avon v. R.[12].

In each of these cases it was contended by the accused that there had been a breach of s. 4(5) of the Canada Evidence Act in the judge's charge to the jury. In the former case the judge had said:

Gentlemen of the Jury, it was pointed out that in the course of my charge to you I stated that you did not have to accept the explanations of the accused because those explanations were not made under oath. You are not to take it from that that there is any onus upon the accused to prove their innocence by going into the witness box and testifying in their defence. There is no such onus on these or any accused persons in any criminal trial of proving their innocence by going into the witness box and testifying in their own defence. You are not to be influenced in your decision by either of the accused not going into the witness box and testifying, but the Court does point out that these explanations were given and when made were not made under oath and it is not only for that reason alone but for any other number of reasons that may occur to you, to decide if you will accept these explanations.

It was held by the majority in that case that the language used by the trial judge was not so much a "comment" on the failure of the accused to testify as a statement of their right to refrain from doing so, and it should not be taken to have been the intention of Parliament in enacting s. 4(5) of the Canada Evidence Act to preclude judges from explaining to juries the law with respect to the rights of accused persons in this regard.

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In the latter case the passage complained of was as follows:

[TRANSLATION] The accused did not testify. Evidently, he could have done so. He is not obliged to do so. I must tell you immediately, because it is better to say it, it is not because the accused did not testify that you should believe that he could be guilty. His absence from the witness box, the fact that he did not testify and did not call any witnesses, has nothing to do with the trial. Because you will have to come to your decision only on the well-established principle that the Crown must prove and establish the guilt of the accused.

Fauteux C.J., writing the reasons of the majori­ty, said, at p. 654:

However, relying on the concise and accurate distinction made by Ritchie J. in McConnell and Beer, supra, I would say that the language used by Cousineau J. is a "statement" of an accused's right not to testify, rather than a "comment" on his failure to do so. In my opinion, the instructions complained of cannot be construed as prejudicial to the accused or such as to suggest to the jurors that his silence was used to cloak his guilt. On the contrary, by telling them, as stated above: "His absence from the witness box, the fact that he did not testify and did not call any witnesses, has nothing to do with the trial," the learned judge, in a manner favourable to the accused, set aside the acknowledged right of any judge of the fact judge or jury-to consider whether the evidence produced by the prosecution is such that, in the absence of explanation or contradiction, it can validly justify a conviction.

In each of these cases the decision was that there had not been a breach of s. 4(5) in the charge to the jury. In each case it was also said that even if the comment had been in violation of s. 4(5) it was a proper case for the application of s. 592(1)(b)(iii) of the Criminal Code, now s. 613(1)(b)(iii). Counsel for the appellant contends that that paragraph should be applied in the present case.

Section 613(1) defines the powers of a court of appeal on the hearing of an appeal against a conviction. Paragraph (b)(iii) of that subsection empowers the court to dismiss the appeal from conviction notwithstanding that it is of the opinion that there has been a wrong decision of law in the trial court, if the court is of the opinion that no

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substantial wrong or miscarriage of justice has occurred.

The powers of the court of appeal on an appeal from an acquittal are defined in s. 613(4) as follows:

(4) Where an appeal is from an acquittal the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or

(ii) order a new trial.

Subsection (4) does not contain any provision equivalent to s. 613(1)(b)(iii). The powers of the court under this subsection were considered by the Court of Appeal for Ontario in R. v. Paquette[13], at p. 162. After quoting subs. (4), the Court goes on to say:

It is to be observed that the term, "no substantial wrong or miscarriage of justice" is not incorporated in this subsection as it is in the situation of an appeal by an accused. However, in this ease we think it appropriate to analogize the test, and we would hold that the Crown has satisfied us that it cannot be said that but for the misdirection the verdict of the jury would necessarily have been the same.

The test applied in that case to determine whether a verdict of acquittal should be set aside, where the Crown had established an error in law at the trial, is that which had been stated by Kerwin J., as he then was, in White v. R.[14], at p. 276. It is true that at the time the White case was determined s. 1013(5) of the Criminal Code pro­vided that the powers of a court of appeal on an appeal by the Crown should mutatis mutandis be similar, inter alia, to its powers under s. 1014(2), which enabled it to dismiss an appeal from a conviction, even though there were grounds which might have warranted a decision in favour of the appellant, if it was the opinion that no substantial

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wrong or miscarriage of justice had occurred. However, in the case of R. v. Gauthier[15], Pigeon J., who delivered the reasons of the majority, applied the test defined in the White case. There was no dissent in respect of this point. In the present case, therefore, it was the duty of the Crown, in order to obtain a new trial, to satisfy the Court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury.

In my opinion that test has been met by the Crown. It was part of the appellant's defence to the charge that he could not have committed the offence because he was in Montreal when the murder occurred. Proof of this alibi was tendered by a witness who claimed to have been with the appellant in Montreal. The direction of the trial judge precluded the jury, when considering this defence, from taking into consideration the fact that the appellant had failed to support his alibi by his own testimony. The failure of an accused person, who relies upon an alibi, to testify and thus to submit himself to cross-examination is a matter of importance in considering the validity of that defence. The jury, in this case, was instructed that they could not take that fact into account in reaching their verdict.

In the result, I agree with the judgment of the Court of Appeal and would dismiss this appeal.

Appeal dismissed.

Solicitors for the appellant: Corriveau & Associates, Quebec.

Solicitor for the respondent: François Trem­blay, Quebec.