Supreme Court of Canada
Titus v. R., [1983] 1 S.C.R. 259
Date: 1983-03-01
Joseph Edward Titus (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
File No.: 16283.
1982: October 14; 1983: March 1.
Present: Laskin C.J. and Ritchie, Dickson, Beetz, McIntyre, Chouinard and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Evidence—Cross-examination of Crown witness—Trial judge erred in precluding questions concerning witness’ outstanding indictment—Whether error a substantial wrong or miscarriage of justice—Criminal Code, R.S.C 1970, c. C-34, s. 613(1)(b)(iii).
Appellant, who was convicted of second degree murder, put forward several allegations on appeal, among them, that the trial judge erred in precluding cross-examination by the defence of a Crown witness with respect to an outstanding murder charge preferred against that witness by the same police department that had laid the present charge against the appellant. The Court of Appeal, applying s. 613(1)(b)(iii) of the Code, dismissed the appeal.
Held: The appeal should be allowed and a new trial ordered.
Cross-examination of a Crown witness concerning an outstanding indictment against that witness is proper and admissible for the purpose of showing a possible motivation to seek favour with the prosecution. Here, the trial judge erred in precluding defence counsel from pursuing this line of questioning. The provisions of s. 613(1)(b)(iii) of the Criminal Code could not be applied to this case. It could not be said with the necessary degree of finality that, without that error, the jury as reasonable men, could not have done otherwise than find the appellant guilty.
Colpitts v. The Queen, [1965] S.C.R. 739, considered; Koufis v. The King, [1941] S.C.R. 481, distinguished; R. v. Miller and Cockriell (1976), 24 C.C.C. (2d) 401, referred to.
APPEAL from a judgment of the Court of Appeal for Ontario dismissing appellant’s appeal from his conviction of second degree murder. Appeal allowed.
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Alan D. Gold, for the appellant.
David Watt, for the respondent.
The judgment of the Court was delivered by
RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Court of Appeal for Ontario dismissing the appeal of the appellant from his conviction of the offence of second degree murder entered after a trial held before Mr. Justice Osler sitting with a jury at the assizes of the Supreme Court of Ontario at Ottawa on a charge that he
… on or about the 3rd day of February, 1978, at the City of Ottawa in the said Judicial District, did unlawfully kill one Douglas Castle and thereby committed first degree murder, contrary to the form of the Criminal Code of Canada, Section 218.
The reasons for judgment from which this appeal is taken are to be found in the following “Disposition” endorsed on the Notice of Appeal by Jessup, J.A. on behalf of the Court of Appeal:
DISPOSITION OF APPEAL
We would dismiss the appeal for the reasons argued in the Respondents [sic] factum, and in particular that the verdict was reasonable and that any errors in the admission or exclusion of evidence caused no substantial wrong or miscarriage of justice.
Initially some inconvenience was occasioned in this Court by reason of the fact that the respondent’s factum was not included in the material submitted and formed no part of the Case on Appeal; however, with the co-operation of the Court of Appeal for Ontario, it was found that the submissions made here on behalf of the respondent were virtually identical with those submitted in “The respondents [sic] factum” to which Jessup, J.A. referred and it was apparent that the central points at issue as described in the factum of the appellant in this Court were:
Whether the learned trial judge erred in precluding defence cross-examination of a Crown witness concerning an outstanding charge of murder against the witness.
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Whether the learned trial judge erred in not granting a motion for a directed verdict on the charge as laid at the close of the Crown’s case prior to calling on the defence to call evidence, or alternatively erred in not amending the charge from first to second degree murder at that point.
Whether the learned trial judge erred in failing to caution the jury of the danger of acting on the uncorroborated evidence of the disreputable witnesses Miehm and Assaly.
Whether the Court of Appeal for Ontario erred in applying Section 613(1)(b)(iii) in the circumstances.
The question of whether or not any of the errors alleged to have been made by the learned trial judge are such as to warrant this appeal being decided in favour of the appellant is of course to be considered in light of s. 613(1)(b)(iii) of the Criminal Code which provides that:
613. (1) On the hearing of an appeal against a conviction… the court of appeal
…
(b) may dismiss the appeal where
…
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;
This section falls to be considered in light of the decision of this Court in Colpitts v. The Queen, [1965] S.C.R. 739, which was carefully considered in the Court of Appeal for British Columbia in R. v. Miller and Cockriell (1976), 24 C.C.C. (2d) 401 where Robertson J.A. wrote the principal judgment of the court and particular reference was made to the judgment of Spence J. at p. 755 of the Supreme Court of Canada Report where he said:
Therefore, this Court must apply the test set out in the aforesaid cases and, to quote again from Brooks v. The King [(1927), 48 C.C.C. 333 at p. 358, [1928] 1 D.L.R. 268 at p. 271, [1927] S.C.R. 633]:
… the onus was upon the Crown to satisfy the Court that the jury, charged as it should have been, could
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not, as reasonable men, have done otherwise than find the appellant guilty.
I think it desirable to deal with the above issues in the order in which they are presented.
The first issue has to do with the evidence of the Crown witness Miehm and the validity or otherwise of the ruling made by Mr. Justice Osler precluding his being cross-examined relating to an outstanding indictment preferred against him in a different case and not disposed of at the time of the Titus trial.
It is not by any means impossible that the jury’s verdict might have been affected if they had known the facts of Miehm’s background and the motive which it afforded him to favour the prosecution’s case. The burden lies upon the Crown to prove that the verdict would necessarily have been the same, and I cannot say with any finality that that would have been so had Osler J. permitted the cross-examination on Miehm’s pending trial for another murder. The judge’s ruling in this regard reads as follows:
In this matter, a witness called by the Crown has been examined-in-chief and has admitted to a number of prior convictions. On cross-examination, Counsel for the accused now wishes to ask the witness whether he is not, at this time, facing a serious criminal charge laid against him by the same police department that laid the charge now before the Court and faced by Mr. Titus.
While there appears to be no direct authority on the point, by analogy with the well‑known decision in Koufas vs. The King [sic] it seems to me it would be wrong to expose the witness to such a question. Within the discretion of a trial judge, it is virtually never permitted to Counsel to cross-examine with respect to charges laid or pending but not finally dealt with. Section 12(1) of the Evidence Act is clear authority for the way in which previous convictions may be put to a witness and, treating the matter completely at large, it seems to me that, conviction having been dealt with in the section, it was not the intention of Parliament that a charge should expose a witness to the same procedure. To request such questions would be to run directly contrary to the practice governed by the basic presumption that all persons are innocent until proved guilty, and the prejudicial effect with respect to the witness
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might be very considerable. As a matter of logic, it cannot properly be stated that the laying of a charge affects the character of a witness, and it would not, in my view, be proper to investigate such an occurrence in the present circumstances. I should add that the charge laid is said to be in no way related to the offence now before the Court, or to the events surrounding that offence.
The questions may not at this stage be put to the witness.
The case of Koufis, to which the learned trial judge was obviously referring, is reported in [1941] S.C.R. 481 and is concerned with the cross-examination of the accused in relation to prior convictions and it has no relevance to the position of a Crown witness other than the accused. It should furthermore be observed that s. 12(1) of the Canada Evidence Act is concerned with examination of a witness relating to previous convictions. It is to be remembered that in the present case Miehm was neither an accused nor was it proposed to question him concerning a previous conviction but rather to inquire as to his having been indicted although not yet tried. In this regard I am satisfied that the appellant was on sound ground in submitting that cross-examination of a Crown witness concerning an outstanding indictment against that witness is proper and admissible for the purpose of showing a possible motivation to seek favour with the prosecution.
I think it essential to stress the purpose for which the cross-examination is permitted, namely, in order that the defence may explore to the full all factors which might expose the frailty of the evidence called by the prosecution. That the accused as he stands in the prisoner’s box on trial for murder is deemed to be innocent until proven guilty beyond a reasonable doubt is one of the fundamental presumptions inherent in the common law and as such the accused is entitled to employ every legitimate means of testing the evidence called by the Crown to negative that presumption and in my opinion this includes the right to explore all circumstances capable of indicating that any of the prosecution witnesses had a motive
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for favouring the Crown. In my opinion the outstanding indictment preferred against the witness by the same police department that had laid the present charge against Titus constitutes such a circumstance and accordingly I am of opinion that the learned trial judge did indeed err in precluding defence counsel from pursuing this line of questioning.
As to the second issue raised by the appellant concerning the alleged error of the trial judge in failing to grant the appellant’s motion for a directed verdict, I am of opinion that this was indeed an error which might have affected the appellant’s decision to call no evidence at the close of the Crown’s case, but any such error was corrected in the final address to the jury by the trial judge which included the following direction:
Counsel have put it to you, and I formally instruct you as a matter of law, that there could be no conviction for first degree murder in this case.
I should say also as to the third alleged error that I cannot find the verdict to have been affected by any failure of the trial judge to further caution the jury as to the danger of acting on the uncorroborated evidence of Miehm and Assaly. This is not an end of the matter however, as the first error remains outstanding and in my view it cannot be said with the necessary degree of finality that if the judge had not erred in failing to permit the cross-examination of Miehm the jury, as reasonable men, could not have done otherwise than find the accused guilty.
With the greatest respect for the Court of Appeal, I am accordingly of opinion that this is not a case to which the provisions of s. 613(1)(b)(iii) of the Criminal Code are applicable.
It follows that I would allow this appeal on the first issue and direct that a new trial be held.
Appeal allowed and new trial ordered.
Solicitor for the appellant: Alan D. Gold, Toronto.
Solicitor for the respondent: The Attorney General for the Province of Ontario, Toronto.