Supreme Court of Canada
Latour v. The Queen,  1 S.C.R. 361
René Latour Appellant;
Her Majesty The Queen Respondent.
1976: October 27; 1976: December 7.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Criminal law—Evidence—Robbery—Defence of alibi—Illegal rebuttal evidence—Harm to accused—Criminal Code, R.S.C. 1970, c. C-34, s. 302.
Appellant was convicted on a charge of robbery committed at the L … jewellery store. The evidence at the trial centered on identification of the accused as a participant in the robbery. The testimony of the victim, jeweller L …, and of a neighbouring jeweller, H …, seems to indicate that on June 25, 1968, the accused was shown rings, and that the next day he returned to commit robbery. The two jewellers identified the accused from a set of photographs a month after the robbery. At the trial, only the jeweller H. was able to identify the accused in court. The accused testified in support of his defence of alibi. He stated he had worked on June 25 and 26, 1968. In cross-examination, he answered without objection when asked if he knew a third jewellery store, S … He answered that he did not know this jewellery store and that he had never gone there. The accused’s employer also testified.
In rebuttal, the Crown introduced the testimony of a sales clerk at the S … jewellery store. She recognized the accused, both in a photograph and in person as the man who committed a robbery at the S … jewellery store on September 13, 1968. It is the admission of this rebuttal evidence that appellant objected to. The Court of Appeal dismissed his appeal and affirmed the judgment at trial. Hence the appeal to this Court.
Appellant alleged that if this rebuttal evidence was to attack credibility, it offended the principle that a collateral fact put in evidence by the Crown in its cross-examination may not be contradicted by the Crown and that if, on the other hand, the rebuttal evidence attacked the alibi, it had no basis in fact since the alibi related to June 25 and 26, 1968 and the rebuttal evidence to September 13, 1968.
Held: The appeal should be allowed.
If the right of the Crown to contradict a defence of alibi is unquestionable, it is also indisputable that this right may only be exercised by attacking the material
points of the alibi. The rebuttal evidence establishing the accused’s presence at the S … jewellery store on September 13 does not rebut the defence of alibi according to which the accused was not at the L … jewellery store on June 25 and 26.
Viewed as an attack on credibility, the rebuttal evidence is still inadmissible since it offends the principle that a collateral fact put in evidence by the Crown in its cross-examination may not be contradicted. This rebuttal evidence also cannot be used as similar fact evidence, inadmissible in the case at bar. Moreover, the lack of objection by the defence at the trial did not prevent appellant from raising the illegality of the rebuttal evidence.
The admission of this illegal rebuttal evidence caused harm to the accused. A new trial should be ordered but since the Crown agrees, the Supreme Court enters a verdict of acquittal.
R. v. Cargill,  2 K.B. 271; R. v. Hrechuk (1950), 10 C.R. 132; R. v. Rafael (1972), 7 C.C.C. (2d) 325; Leblanc v. The Queen,  1 S.C.R. 339; R. v. Rosik (1970), 2 C.C.C. (2d) 351; R. v. Vézeau,  2 S.C.R. 277; Boulet v. The Queen,  1 S.C.R. 332, (1976), 75 D.L.R. (3d) 223.
APPEAL from a decision of the Court of Appeal of Quebec affirming a conviction pronounced by a jury on a charge of robbery. Appeal allowed: acquittal.
Michel Denis and Bernard Lamarche, for the appellant.
Fernand Côté, for the respondent.
The judgment of the Court was delivered by
DE GRANDPRE J.—Appellant obtained leave to appeal from a unanimous decision of the Court of Appeal, affirming a conviction pronounced by a jury on October 17, 1973 on a charge of robbery committed on June 26, 1968 in St-Rémi, at the Claude Létourneau jewellery store, amounting to $23,000 (s. 288 of the Criminal Code, now s. 302).
As the substance of the appeal is the admission of rebuttal evidence against a defence of alibi, and appellant contends such admission was illegal, it is enough to summarize in a few words the evidence
of identification given by the prosecution. Two witnesses were called, the victim Létourneau and Jean-Paul Houle, both operating jewellery stores in St-Rémi a few steps from each other, and according to their testimony:
(a) on June 25, in mid-afternoon, Latour and two companions asked to be shown some expensive rings, by Houle and Létourneau in turn;
(b) the next day, June 26, 1968, at about 10:30 a.m., Latour and two companions, one of whom had been with him the day before, committed the robbery mentioned in the indictment.
It should be noted that these witnesses reported only what happened at their own businesses, having no knowledge of the events at their competitor’s store. It should also be noted that the identification was made the month following the robbery from a set of about a hundred photographs, including one of appellant taken at the Montreal prison and inscribed as such. Houle added to this an identification in court, which Létourneau could not do.
In support of his defence of alibi, Latour offered his testimony. In chief, he stated in essence that he had worked all day on June 25 and 26, 1968, and that he had never set foot in St‑Rémi. In cross-examination, he described the usual occupation of his days with his employer at the time, one Dulude, a grocer, and explained that he stated that he had worked on those days because his employer had entered it in his books. The cross-examination includes the following exchange, which according to the Crown opens the way for the rebuttal evidence, which will be discussed below:
[TRANSLATION] Q. Sir, do you know the Serre jewellery store? A. I don’t know the jeweller, no.
Q. I am not asking you about the jeweller, I am asking you about the Serre jewellery store.
A. Serre—I don’t know where that is.
Q. I will tell you where it is: Chemin St-Jean in Laprairie.
A. No, I have never heard of it.
Q. You swear that, sir?
A. Yes, I swear it.
Q. You swear that you have never been to the Serre jewellery store?
A. Yes, I swear it, I swear it, yes, I have never gone there in my life.
Latour’s testimony ended with the statement that his hours of work had been changed on October 22, 1968.
Latour’s employer, Dulude, also testified for the defence. With respect to the dates, he could only testify by referring to his books, which is not surprising since the trial was taking place almost five and a half years after the event. On the basis of the entries he had made, he stated that Latour had worked on June 25 and 26, 1968. He added that during the two years Latour had been in his employ, he had never missed a day of work, but that occasionally he had been given a couple of hours off. He admitted the possibility that this had occurred on June 25 and 26, 1968, and his testimony ended with the examination of certain entries in his books for December 1968 and a general description of Latour’s duties.
In rebuttal, the Crown introduced the testimony of Lyne Martin, the whole of which follows below. Exhibit P-19 is the photograph taken at the Montreal prison, already used by the witnesses Latour and Houle.
[TRANSLATION] Q. Miss Martin, I show you an exhibit which was introduced as P-19; would you look at it and tell the Court whether you have, or whether you recognize this individual as having seen him somewhere?
A. Yes, I recognize him, as having committed a robbery at the Serre jewellery store in Laprairie.
Q. In Laprairie; what was your position at that time?
A. I was a sales clerk.
Q. You were a sales clerk?
Q. At the counter?
A. At the counter, yes.
Q. And when did you see this individual at the Serre jewellery store?
A. I saw him at about one o’clock in the afternoon; he came in with another boy.
Q. What month?
A. Oh! Yes, excuse me, the thirteenth, Friday, September 13.
Q. What year?
Q. On September 13, 1968, you saw this individual at the Serre drugstore?
A. At the jewellery store.
Q. At the Serre jewellery store in Laprairie?
Q. That’s correct?
Q. Would you look at the dock: do you recognize that individual?
A. I recognize him, but he was thinner.
Q. Do you recognize him as the one who went to the Serre drugstore in Laprairie?
A. Yes, I recognize him, at the Serre jewellery store.
Q. At the Serre jewellery store?
Counsel for the Defence:
Q. Now, Miss Martin, on exactly what date did this holdup occur?
Your Lordship, she has just answered that question.
That is not the purpose of cross-examination, it is not to repeat the same thing, she has just said that it was September 13, 1968.
Counsel for the Defence:
Q. You identified the photograph of Mr. Latour how long after the robbery?
A. About three-quarters of an hour.
Q. After the robbery?
A. Yes, the time it took me to get to Montreal.
Q. Do you recognize Mr. Latour here today?
Q. Is he the individual you have seen when the Serre jewellery was robbed?
Q. You are sure—you are under oath?
A. I am as sure as I was when I identified the photograph.
Appellant submits that this rebuttal evidence should not have been admitted for the following reasons, inter alia:
(1) if this rebuttal evidence was to attack credibility, it offends the principle that a collateral fact, put in evidence by the Crown in its cross-examination of the defence witnesses, may not be contradicted by the Crown;
(2) if, on the other hand, this rebuttal evidence claims to attack the alibi, it has no basis in fact, since neither Latour nor Dulude stated that, according to Dulude’s books, Latour was at work on September 13, 1968, though they did testify he was at work on June 25 and 26, 1968.
Bernier J.A., speaking for the Court of Appeal, rejected these two grounds of appeal:
[TRANSLATION] It appears from appellant’s testimony that he was still working for the Dulude grocery store in October 1968; moreover, during cross-examination, the Crown Attorney drew from him that he did not know the Serre jewellery store in Laprairie, and that he had never been there. These questions were asked without objections; there is reason to believe that if objections had been made, the judge presiding at the trial would have allowed them, in the circumstances.
This is the context of the rebuttal evidence. It appears that it had the purpose of further discrediting the alibi, already greatly weakened by the cross-examination of the accused and Dulude, and at the same time, the credibility of the accused with respect to the other part of his testimony, that is, his statement that he had never been to St-Rémi and did not know the Létourneau jewellery store.
In calling Lyne Martin, the Crown did not complete the evidence which it should have given in chief, but, provided that the jury believed Miss Martin, it established that the accused had lied during cross-examination.
I cannot agree with this conclusion. The defence of alibi related only to June 25 and 26, 1968: not a word was said about September 13, 1968; nor was this date mentioned during the cross-examination of Latour regarding the Serre jewellery store. The right of the Crown to contradict a defence of alibi is, it goes without saying, unquestionable, but it is also indisputable that this right may only be exercised by attacking the material points of the alibi advanced by the accused. If, for example, Miss Martin had stated that she had seen appellant at
the Serre jewellery store on June 25 or 26, 1968, her testimony would clearly have been relevant in the context of the development of the evidence up to that time. However, that was not the case here, and appellant was right to maintain that the rebuttal evidence designed to establish that he was in Laprairie on September 13, 1968 does not rebut his statement that he was not in St-Rémi on June 25 and 26 of that year.
Viewed as an attack on credibility, the rebuttal evidence is still inadmissible. In the context of the charge against him, the negative answer given by Latour in cross-examination to the prosecution’s suggestion that he knew the Serre jewellery store in Laprairie relates to a collateral fact, and does not open the way to rebuttal evidence. The principle is clear, and as examples we need only refer to R. v. Cargill, R. v. Hrechuk and R. v. Rafael.
The Crown did not suggest that in the case at bar the testimony of Lyne Martin could be admitted because it established a similar fact independently of the defence of alibi. That is what the trial judge explained to the jury in his charge:
[TRANSLATION] A somewhat different situation presented itself when Miss Martin was called to testify to the effect that she identified the accused specifically when he had committed a holdup at a later date, October 12, pardon me, September 13, this evidence normally—if there had not been a question of an alibi—this evidence would justify me in ordering a new trial, a mistrial, and discharging the jury. However, given that there was a defence of alibi, the law permits similar fact evidence to be given; in this situation, however, without examining the Crown’s intentions in developing its evidence, I nevertheless find that this girl squarely contradicted the testimony of the accused when she said that he had gone to the Serre jewellery store, and that he did so in a holdup. So you must not take this part of her evidence, relating to the holdup, as evidence of bad character.
This position of the Crown is clearly correct. The conditions in which similar fact evidence is permitted are not found here; they were examined recently in two decisions of this Court: Leblanc v. The Queen and Boulet v. The Queen.
The Crown, moreover, did not contend that the lack of objection by the defence at the trial prevented appellant from raising the illegality of the rebuttal evidence. That also is in accordance with principle, and I need only refer to R. v. Rosik.
Is this a matter in which, notwithstanding the admission of illegal rebuttal evidence, it is possible to state that no significant harm was caused, so that the appeal should be dismissed (s. 613(1)(b)(iii) of the Criminal Code)? I do not think so. Not only does the Crown have the burden of proving the absence of significant harm, see The Queen v. Vézeau, but the extract which I have cited from the judge’s charge shows the importance which he attached to the testimony of Lyne Martin, an importance which surely influenced the jury.
Faced with the conclusion I have reached, I would normally have to order a new trial. However, appellant has asked the Court to make an order of acquittal, noting, among other things, the exceptional circumstances of the record. Crown counsel, at the hearing, agreed with this proposal if we concluded that the appeal should succeed. In my opinion, we should comply with this agreement.
I would allow the appeal and order that a verdict of acquittal be entered.
Solicitors for the appellant: Bernard Lamarche & Michel Denis, Montreal.
Solicitor for the respondent: Fernand Côté, Montreal.