Supreme Court Judgments

Supreme Court of Canada

John v. R., [1971] S.C.R. 781

Date: 1970-12-21

Alec John Appellant;

and

Her Majesty The Queen Respondent.

1970: June 9; 1970: December 21.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR THE YUKON TERRITORY

Criminal law—Charge to jury—Circumstantial evidence—Erroneous example—Misdirection—Duty to relate evidence to issues—Test in Hodge’s case—Criminal Code, 1953-54 (Can.), c. 51, s. 207.

Criminal law—Evidence—Confession—Statement admitted without voir dire—Substantial wrong or miscarriage of justice—Criminal Code, 1953-54 (Can.), c. 51, s. 592(1)(b)(iii).

The appellant had been living with a girl. On August 22, he drove with his nephew to an Indian reservation and broke into a house in which the girl had stayed overnight. He then sent his nephew on an errand. When the latter returned, the appellant and the girl were no longer there. The girl was never seen alive again. Ten days later, the appellant told his nephew that “the girl was finished”, that “he did not know what he should do” and that he “did not know if he should turn himself in or not”. Two weeks after that, while the appellant was being held in custody for questioning concerning the girl’s whereabouts, he led three police officers to a place in the bushes where her dead body was found wrapped in a blanket inside a canvas covering and trussed up with a rope. The appellant was charged with manslaughter. The trial judge opened his instructions to the jury by stating that all the evidence was circumstantial; and, he gave them the following illustration of the difference between circumstantial and direct evidence: If a witness gives evidence that he saw A stab B with a knife, that is direct evidence that A stabbed B. If a witness gives evidence that he found a dagger with an unusually long blade in the possession of A and another witness testified that such a dagger could have caused B’s wounds, that is circumstantial evidence tending to prove that A did in fact stab B. The appellant was convicted and his appeal was dismissed by a majority judgment of the Court of Appeal for the Yukon Territory. The accused appealed to this Court.

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

Per Fauteux C.J. and Abbott, Martland, Judson and Ritchie JJ.: Although the illustration was potentially misleading if it had stood alone, the fact that it was almost immediately followed by a correct statement of the effect to be given to circumstantial evidence, served to offset any wrong impression of the law which it might have left in the minds of the jurors. The language used in Hodge’s case does nothing more than provide a graphic illustration of the principle that where the evidence is purely circumstantial it must be made plain to the jury that in order to be satisfied of the guilt of the accused beyond a reasonable doubt, they must first be satisfied that the circumstances are such as to be inconsistent with any other rational conclusion than that the accused was the guilty person. If the jury is left in doubt as to whether or not the circumstances are equally consistent with some conclusion other than guilt, then it is their duty “to give the accused the benefit of the doubt and not to convict him on the circumstantial evidence standing alone”. When read as a whole the charge contains no errors in regard to circumstantial evidence which would warrant this Court in quashing the conviction and ordering a new trial.

There is no duty upon a trial judge when instructing a jury to relate each item of evidence to the issues in the case and to give the jury specific instructions as to whether it could or could not properly form the basis of an inference as to those issues. Nor is it necessary that each item of circumstantial evidence be subjected to the test in Hodge’s case.

The statement made by the appellant to the police that he had last seen the girl on August 25 was not objected to by counsel on his behalf on the ground that it was exculpatory. It was admissible not because it was exculpatory but because it was volunteered by the appellant. The question of whether a statement is inculpatory or exculpatory and whether or not it is voluntary are two different matters, and where it has been shown that a statement made to a person in authority was not voluntarily made, it is to be excluded whether it be exculpatory or inculpatory. The question of whether or not all of the statements made by the appellant to the police could be said to have been voluntary and therefore admissible without the holding of a voir dire, did not have to be decided because even if the appellant’s rambling account of his activities after August 22 should not have been admitted as it was, this would in no way affect the relevancy and admissibility of the all important evi-

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dence that he led the police officers to the place where the body of the girl was concealed. However, even if some error had been made by the trial judge, the circumstances were consistent with the appellant having unlawfully killed the girl and the facts were inconsistent with any other rational conclusion, so that a jury properly instructed would necessarily have returned a verdict of guilty. There was therefore no substantial wrong or miscarriage of justice.

Per Pigeon J.: The illustration of circumstantial evidence was erroneous in its entirety. This could not properly be said to be circumstantial evidence as it does no more than reveal a possibility, suggest a conjecture or at most raise a suspicion. The fact that this was presented only for the purpose of explaining the distinction between the two kinds of evidence does not mean that it was not in itself misleading. While it is literally true the jury must give an accused the benefit of the doubt if the evidence is equally consistent with the innocence of the accused as with his guilt, it is highly misleading because the obvious implication is that if the circumstantial evidence is more consistent with the guilt than with the innocence then they may convict. Circumstantial evidence requires facts from which guilt is the only rational inference and if innocence is an equally rational inference there is no proof of guilt at all. The rule on circumstantial evidence is nothing more than a formula to assist in applying the accepted standard of proof beyond a reasonable doubt to a criminal case resting upon such evidence. It is misleading to couple that rule with a statement that really implies a different and much lower standard. However, by giving clear instructions on the burden of proof and enumerating the elements of the offence, the trial judge has clearly dissipated any unfortunate implication as to the standard of proof. The illustration cannot possibly have misled the jury and, on the whole, this inaccuracy did not constitute misdirection. In any event, this is a proper case for applying the provisions of s. 592(1)(b)(iii) of the Criminal Code.

Per Hall J., dissenting: The charge on circumstantial evidence constituted misdirection, and were it not for the admission in evidence of statements made

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by the appellant without a voir dire, this would have been a proper case for applying the provisions of s. 592(1)(b)(iii) of the Code. However, a voir dire was not held despite the fact that one was asked for by the appellant’s counsel. That error was of such a consequence that the Court ought not to say that no substantial wrong or miscarriage of justice had occurred.

Per Spence J., dissenting: The misdirection constituted a fatal error in the charge. It was not cured by other statements in the charge in which the rule as to circumstantial evidence was stated correctly. The faults would have the effect of permitting the jury to apply to the assessment of the probative value of the circumstantial evidence a much less stringent test than that set out in Hodge’s case. The admission of the accused’s statement without any determination of its voluntary character in a proper voir dire resulted in there being placed before the jury inadmissible evidence of a most important and a most damaging character. The provisions of s. 592(1)(b)(iii) of the Code could not be applied. One cannot conclude that a jury properly charged on admissible evidence could not have done otherwise than convict the appellant.

Per Laskin J., dissenting: The question whether the charge taken as a whole was adequate notwithstanding the standing misdirection is quite separate from the issue of no substantial wrong or miscarriage of justice. If the misdirection is fatal to the conviction the least to which the accused is entitled is a new trial. The trial judge did not explain the meaning of circumstantial evidence except by reference to an illustration which was clearly unacceptable. This error could only have been regarded as immaterial if the trial judge had not been obliged in this case to do more than point out to the jury in general words the difference between direct and circumstantial evidence. The trial judge aggravated the deficiency by simply narrating what each witness had said, without relating the evidence to the issues in the case and without indicating to the jury the need to distinguish between those facts which were reasonably probative of the issues and those which could not be regarded as justifying inferences to that end. The generalities in the charge cannot serve as a cover for the inadequacies in this case because the medical evidence, taken alone, could not support a finding that the deceased came to her death as a result of the wrongful act of another person, because the statements of the appellant which were admitted without a voir dire involved a variety of admissions

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which, without proper direction, could mislead the jury into inferences of guilt and because the trial judge’s omission to mention, let alone relate to it, certain qualiflying evidence of the witness Kerry. The failure of the Crown to establish the voluntariness of the accused’s statements warrants the quashing of the conviction and a new trial. The defect in the charge goes beyond a mere mix-up of the principle of reasonable doubt with the rule of circumstantial evidence as the trial judge suggested a lower burden of proof upon the Crown than proof beyond a reasonable doubt. It would aid clarity in charging a jury if proof of issues by circumstantial evidence was dealt with in a way that would not suggest that there were possibly colliding or separate burdens of proof in a case involving such evidence. It is preferable, where all or part of the case against an accused is based on circumstantial evidence, to bring only the traditional burden of proof in relation to such evidence, but at the same time to emphasize the function of inference through which that evidence has vitality and show its bearing on the issues to which the evidence is addressed.

APPEAL from a judgment of the Court of Appeal for the Yukon Territory[1], affirming the appellant’s conviction for manslaughter. Appeal dismissed, Hall, Spence and Laskin JJ. dissenting.

Ralph Hudson and B.A. Crane, for the appellant.

John Scollin, Q.C., and Stephen Hardinge, for the respondent.

The judgment of Fauteux C.J. and of Abbott, Martland, Judson and Ritchie JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal for the Yukon Territory¹ dismissing the appellant’s appeal from his conviction of manslaughter by the Honourable Mr. Justice Madison sitting with a jury at Whitehorse in the Yukon Territory, on May 16, 1969.

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The charge against the appellant is

THAT HE, between the 21st day of August, 1967, and the 7th day of September, 1967, in the Yukon Territory, did unlawfully kill Graffie George, thereby committing Manslaughter, contrary to Section 207 of the Criminal Code.

The evidence discloses that prior to August 21st, Graffie George had been living with the appellant for about eighteen months but on the afternoon of that day she was found to be hiding in the bushes near her sister’s house at an Indian reservation outside of Whitehorse; she was then “very dirty” and her sister took her into the house where she stayed over night. On the following evening (August 22nd) the sister went out to play bingo at Whitehorse at about 7 p.m., but Graffie George remained in the house because, as her sister says “she was scared to come with me.” Later that evening, while the sister was still out, the appellant and his nephew, Lester John, drove to the reserve and the appellant broke into her house leaving it, with Graffie George, through the window by which he had broken in. The appellant then sent Lester John on an errand and when he returned the appellant and Graffie George were no longer there.

There is no evidence that Graffie George was ever seen again alive, but on September 14th, after the police had started to investigate her disappearance and while the appellant was being held in custody for questioning concerning her whereabouts, he led three police officers to a place in the bushes off the Alaska Highway where Graffie George’s dead body was found wrapped in a blanket inside a canvas covering and trussed up with rope so that it “appeared to be in a foetal position with head down around the knees and the knees drawn up towards the head area and the rope went around the head area and down around the ankles.”

The canvas covering in which the body was found was identified as a tent which, with a mattress and two blankets, had been stolen from a campsite set up by two boys not far from a camp which had been occupied by the appellant. The blanket covering the body was identified as similar

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to one of the stolen blankets while the mattress was found at the appellant’s campsite.

Lester John testified that on September 1, 1967, ten days after the girl had last been seen, the appellant called at the house where he was staying and told him that “the girl was finished” that “he did not know what he should do” and that he “did not know if he should turn himself in or not.”

In conducting the autopsy on Graffie George’s body, Dr. D.F. Morrow, an experienced pathologist, found that the cause of death was a sub-dural haemorrage covering the left side of the brain which had been pushed downwards by the pressure of the haemorrage. He also found two bruises located on the chest wall over the ribs and in the abdomen two haemorrages in the liver approximately 2¼” to 2½” by ¾” which he thought to be related to the chest bruises. The doctor indicated that the injuries were caused by “a blunt type of force”, on cross-examination he agreed that the head injury was such as could be caused by “a person striking their head getting out of a car” and that the other injuries were possibly compatible with a person having fallen on a two-pronged object, but that they were also consistent with having been caused by blows from a fist.

There is no evidence as to how the dead girl’s body came to be trussed up in the fashion in which it was found, but it is self-evident that this was the deliberate work of some human agency, and the facts are that the appellant was the last person that any witness had seen in the dead girl’s company and that on the 14th of September he knew where the body was concealed in the woods.

I have not attempted to make an exhaustive review of the evidence, the greater part of which is discussed at length in the dissenting reasons for judgment of Mr. Justice Branca in the Court of Appeal, but the facts which I have recited are uncontradicted and in my opinion afford more than sufficient evidence upon which a properly instructed jury could have convicted the appellant of manslaughter.

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The question on his appeal, however, is whether there was such misdirection in the charge of the learned trial judge as to justify this Court in ordering a new trial.

In the course of his dissenting reasons for judgment, Mr. Justice Branca found that the learned trial judge had misdirected the jury in a number of respects, but I think it fair to say that his main objections were related to the instructions given to the jury as to the nature of circumstantial evidence and the effect to be given to it. It is not disputed that the evidence was entirely circumstantial and in this regard the trial judge opened his direction to the jury by furnishing them with an example of the difference between direct and circumstantial evidence. This example was criticized by Mr. Justice Branca and is now said to have amounted to misdirection. In this regard the learned trial judge said:

All of the evidence that has been given in this trial is what is known as circumstantial evidence. To refresh your memory as to the difference between circumstantial evidence and what is known as direct evidence I will give you an illustration. If a witness gives evidence that he saw A stab B with a knife, that is direct evidence that A stabbed B. If a witness gives evidence that he found a dagger with an unusually long blade in the possession of A and another witness testified that such a dagger could have caused B’s wound, that is circumstantial evidence tending to prove that A did in fact stab B.

The two forms of evidence are equally admissible but the superiority of direct evidence is that it contains only one source of error, namely the unreliability of human testimony, where circumstantial evidence in addition to the unreliability of human testimony suffers from the difficulty of drawing a correct inference from the circumstantial evidence.

As the trial judge said, the above illustration was designed exclusively for the purpose of refreshing the memory of the jury as to the difference between direct and circumstantial evidence and although it was so unhappily phrased as to have been potentially misleading if it had stood alone, I think the fact that, as will hereafter appear, it was; almost immediately followed by a

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correct statement of the effect to be given to circumstantial evidence, served to offset any wrong impression of the law which it might have left in the minds of the jurors.

It seems to me that the only valid criticism of this illustration must relate to the final words “tending to prove that A did in fact stab B”. There can be no doubt that it was correct to say “If a witness gives evidence that he saw A stab B with a knife, that is direct evidence that A stabbed B”, and I think it was also correct to say that “If a witness gives evidence that he found a dagger with an unusually long blade in the possession of A and another witness testified that such a dagger could have caused B’s wound, that is circumstantial evidence”, but standing alone it is not evidence “that A did in fact stab B” although, taken in conjunction with evidence of other facts, it might afford a link in a chain of circumstantial evidence so that when the whole was taken together a jury might be justified in reaching the conclusion that the circumstances were consistent only with guilt and inconsistent with any other rational conclusion. Having stated correctly that it was circumstantial evidence, it will be observed that the trial judge proceeded to point out that while the value of direct evidence is dependant upon the reliability of human testimony, the value of circumstantial evidence suffers also “from the difficulty of drawing a correct inference” from the testimony as to the existence of the circumstances, and he went on to state correctly the rule which has been established for the evaluation of such evidence, saying:

It is therefore my duty to urge you not to find the accused guilty on circumstantial evidence alone, unless you are satisfied, not only that the circumstantial evidence is consistent with the conclusion that the accused committed the offence with which he is charged, but also that the facts which have been proved are such as to be inconsistent with any other rational conclusion than that the accused is guilty of the offence with which he is charged.

There can be no exception taken to this part of the charge as it is phrased in very much the same

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language as that employed by Baron Alderson in Hodge’s case[2], which was approved and adopted in this Court in R. v. Comba[3].

It is contended, however, that the next paragraph of the charge constituted misdirection and indeed in the opinion of Mr. Justice Branca, it was “completely erroneous”. This paragraph reads as follows:

If you come to the conclusion that the evidence is equally consistent with the innocence of the accused as with the guilt of the accused, then it is your duty to give the accused the benefit of the doubt and not convict him on circumstantial evidence standing alone.

Mr. Justice Branca expressed his opinion of this direction in the following language:

The direction, in my humble judgment, should have been that if the jury found the evidence consistent with guilt but likewise consistent with a rational hypothesis of innocence the jury should acquit the appellant, not on the basis of giving the appellant the benefit of a reasonable doubt, but because the evidence did not satisfy the test laid down in the Hodge’s case. It was only if the evidence satisfied the test in Hodge’s case that the jury would have to consider the doctrine of reasonable doubt and then only if upon the whole of the evidence they entertained a reasonable doubt as to the guilt of the accused.

I think that these observations of the learned judge must be read in light of the following statement made on behalf of this Court in McLean v. The King[4], where it is said:

The respect in which the learned judge’s charge is said to be insufficient as a proper direction to the jury is that he did not instruct them that, in so far as they relied upon circumstantial evidence in the case before them, they must be satisfied not only that the circumstances proved were all consistent with the guilt of the accused, but also that they were inconsistent with any other rational conclusion. This is the rule laid down by Baron Alderson as far back as the Hodge case, and it has ever since been recognized as a proper direction to jurors.

It is of last importance, we do not doubt, where the evidence adduced by the Crown is solely or mainly of what is commonly described as circumstantial, that

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the jury should be brought to realize that they ought not to find a verdict against the accused unless convinced beyond a reasonable doubt that the guilt of the accused is the only reasonable explanation of the facts established by the evidence. But there is no single exclusive formula which it is the duty of the trial judge to employ. As a rule he would be well advised to adopt the language of Baron Alderson or its equivalent.

More recently, in The Queen v. Mitchell[5], which was a case of capital murder, where Mr. Justice Spence was dealing with the effect of the rule in Hodge’s case in relation to proof of planning and deliberation, he had occasion to say, at page 479:

The direction in Hodge’s case did not add to or subtract from the requirement that proof of guilt in a criminal case must be beyond a reasonable doubt. It provided a formula to assist in applying the accepted standard of proof in relation to the first only of the two essential elements in a crime; i.e., the commission of the act as distinct from the intent which accompanied that act. The first element, assuming every circumstance could be established by evidence, would be capable of proof to a demonstration. The latter element, save perhaps out of the mouth of the accused himself, could never be so proved. The circumstances which establish the former not only can be, but must be consistent with each other, as otherwise a reasonable doubt on the issue arises.

With the greatest respect for the views expressed by Mr. Justice Branca, I think that his criticism of the last of the above-quoted paragraphs of the charge of the learned trial judge is founded on too rigid an adherence to the letter of the charge given by Baron Alderson to the jury in Hodge’s case which resulted in his treating the words of that charge as if they embodied a principle which was quite distinct from the question of reasonable doubt. It appears to me on the contrary that, on analysis, the language used in Hodge’s case does nothing more than provide a graphic illustration of the principle that where the evidence is purely circumstantial it must be made plain to the jury that in order to be satisfied of the guilt of the ac-

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cused beyond a reasonable doubt, they must first be satisfied that the circumstances are such as to be inconsistent with any other rational conclusion than that the accused was the guilty person.

If the jury is left in doubt as to whether or not the circumstances are equally consistent with some conclusion other than guilt, then it is their duty “to give the accused the benefit of the doubt and not to convict him on (the) circumstantial evidence standing alone”. I do not think that the learned judge was saying any more than this and I am satisfied that there was no misdirection in this passage.

I think it pertinent to observe also that much later in his charge to the jury, in discussing the theory of the defence in detail, the learned trial judge said:

The defence also relies heavily on the rule on circumstantial evidence. The defence says that there are many conclusions they may come to by making inferences from the evidence that are equally consistent with the innocence of the accused as with the guilt of the accused and if you apply these doctrines—these three doctrines, presumption of innocence, reasonable doubt and the rule of circumstantial evidence—you can only arrive at a verdict of acquittal.

While I do not consider that the charge to the jury in this case afforded a model of the way in which juries should be instructed with respect to circumstantial evidence, I am nevertheless satisfied that when read as a whole it contains no errors in this regard which would warrant this Court in quashing the conviction and ordering a new trial.

Further objection is taken to the charge of the learned trial judge to the jury on the ground that after he had directed them as to the law and recited the theory of the Crown and that of the defence, he proceeded to review the evidence of each of the witnesses without relating each item of evidence to the issues in the case and giving the jury specific instructions as to whether it could or could not properly form the basis of an inference as to those issues.

I do not think that any such duty lies upon a judge when instructing a jury, but I find it unnecessary to trace the details of the learned trial judge’s charge in this regard because I do not

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question the accuracy of the comment made by Chief Justice Davey in the last two paragraphs of his reasons for judgment where he said:

After explaining to the jury in the light of the evidence the case for the Crown and the weaknesses in it alleged by the defence, and the defence’s case the learned trial Judge proceeded to give to the jury a summary of the evidence witness by witness, instead of analysing it and relating it to the cases of Crown and defence.

For myself, when I was on the trial bench, I preferred the latter method when it was suitable, but there have been many eminent Judges who preferred the former. I think it must be left to each trial Judge to use the method that he considers best suited to the case then before him, provided his charge meets the requirements laid down by the authorities. In my respectful opinion the present charge did.

It was suggested in argument that each item of circumstantial evidence should be subjected to the test in Hodge’s case and I think in this regard that it is well to bear in mind the language used in this Court by Taschereau J. in Côté v. The King[6], where he said:

It may be, and such is very often the case, that the facts proven by the Crown, examined separately have not a very strong probative value; but all the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that may constitute a proper basis for a conviction.

Counsel on behalf of the appellant contended also that the conviction should be quashed on the ground that a statement made by the appellant to the police on the 7th of September was admitted in evidence without a voir dire having first been conducted. The statement was made at 2 o’clock on the afternoon of the day on which the appellant had been taken into custody for interrogation, no charge had been laid against him and the police were simply seeking to determine the whereabouts of Graffie George. The statement which was finally admitted purported to be an account of the appellant’s activities during the summer of 1967 and particularly after the 22nd of August,

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and in the course of it he stated that he had last seen Graffie George on the 25th of August. This statement was made after careful warning had been given to the accused by the police officers concerned and it was treated by the trial judge as being exculpatory in character, but it has been suggested that because no voir dire was held to determine the voluntary character of the statement, it should not have been admitted on the ground that the circumstances are governed by the recent decision of this Court in Piché v. The Queen[7], where the trial judge, after conducting a lengthy voir dire, ruled that a statement made by the accused was inadmissible on the ground that it had not been made voluntarily and it was contended that the statement should have been admitted on the ground that it was exculpatory.

The most significant part of the statement made on the 7th of September was that the accused had last seen Graffie George on the 25th of August, but this information had already been given to Constable Pelletier on the 5th of September when he was on patrol in the neighborhood of Haines Junction and encountered the accused with his brother and sister-in-law. In this regard the Constable gave the following evidence:

Q. Without referring to the text of the conversation you had with any of these people and particularly any conversation you might have had with the accused Alec John, will you tell the court of the encounter with these people—what happened?

A. We stopped and talked with these three individuals.

Q. What about?

A. We talked in generalities, to begin with, then I asked Alec John where Graffie George might be.

Q. And did he reply? A. He did, sir.

The answer given by the accused to this question was that the last time he had seen Graffie George was on the 25th of August and counsel for the appellant expressly stated that he had no objection to the admissibility of this statement on the ground that it was exculpatory. In my view, this statement was admissible not because it was exculpatory, but because it was volunteered by the

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appellant, and I can see no objection to the admissibility of the evidence to the effect that the appellant repeated it to the police on the 7th of September under the circumstances above described.

In the concluding paragraph of the reasons for judgment delivered by Mr. Justice Hall on behalf of the majority of this Court in the Piché case (page 40) he summarized the effect of that decision by saying:

On the basis that there is no distinction to be drawn between inculpatory and exculpatory statements as such in so far as their admissibility in evidence when tendered by the Crown is concerned, I would allow the appeal and restore the verdict of acquittal rendered by the jury.

The question of whether a statement is inculpatory or exculpatory and whether or not it is voluntary, are two entirely different matters and it is made plain in the Piché case that where it has been shown that a statement made by an accused to a person in authority was not voluntarily made, it is to be excluded whether it be exculpatory or inculpatory.

The question of whether or not all the statements made to the police on and after September 7th can be said to have been voluntary and therefore admissible without the holding of a voir dire, in my opinion does not have to be decided in the present case because even if the appellant’s rambling account of his activities after August 22nd should not have been admitted as it was, this would in no way affect the relevancy and admissibility of the all important evidence that he led the police officers to the place where the body of Graffie George was concealed. This circumstance places this case in the same category as that of The Queen v. Wray[8], which was also recently decided in this Court. In that case the location of the murder weapon was pointed out to the police by the accused and, following the judgment of McRuer C.J. in Rex v. St. Lawrence[9], it was held that although a confession made by the respondent was legally inadmissible because it was not

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voluntary, nevertheless the Crown was entitled to prove not only the finding of the murder weapon, but also the fact that its location had been pointed out to the police by the accused and so much of the confession as was verified by the fact of the finding was held to be admissible.

In the concluding paragraph of his reasons for judgment in the Wray case, Mr. Justice Martland, speaking for the majority of the Court at page 19, said:

…on the issue of the admissibility of the evidence sought to be introduced by the Crown in this case, notwithstanding the exclusion of the confession, the law in Canada is correctly stated by McRuer C.J.H.C. in The King v. St. Lawrence, at page 391:

Where the discovery of the fact confirms the confession—that is, where the confession must be taken to be true by reason of the discovery of the fact—then that part of the confession that is confirmed by the discovery of the fact is admissible, but further than that no part of the confession is admissible.

Accordingly, I am of the opinion that the learned trial judge erred in law in excluding evidence as to the facts leading up to the finding of the rifle, and in excluding such parts of the confession as were confirmed as true by the discovery of such facts.

In the present case the appellant did not lead the police officer to the place where the body was concealed until he had been in custody for seven days during which time he had been subjected to constant questioning, but, as I have indicated, I have no doubt that the evidence of the body having been found under those circumstances was both relevant and admissible, and when this evidence is considered in conjunction with the statement made by the appellant to his nephew on September 1st that he “did not know if he should turn himself in or not”, then, as I have indicated, I think it becomes unnecessary to pursue any further the question of whether or not the statements made by the appellant to the police on or after September 7th should not have been admitted without the holding of a voir dire.

It will be seen that I am in general agreement with the reasons for judgment of Chief Justice Davey in the Court of Appeal, but I would add

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that even if this were not so and I considered that some error had been made by the learned trial judge, I am of opinion that the circumstances were consistent with the appellant having unlawfully killed Graffie George and that the facts are inconsistent with any other rational conclusion, so that a reasonable jury properly instructed would necessarily have returned a verdict of guilty and I would therefore have applied the provisions of s. 592(1)(b) (iii) of the Criminal Code.

For all these reasons I would dismiss this appeal.

HALL J. (dissenting)—I agree with my brothers Spence, Pigeon and Laskin that the five paragraphs referred to in their reasons constitute misdirection, and were it not for the admission in evidence of statements made by appellant on September 7th and September 14th to Staff Sergeant Dwernichuk without a voir dire having been held, I would agree with my brother Pigeon that this was a proper case for applying the provisions of s. 592(1)(b)(iii) of the Criminal Code.

However, I cannot ignore that a voir dire was not held, and this despite that one was asked for by appellant’s counsel. The record is clear in this regard.

The statements made by appellant to Dwernichuk cover two interviews. The first was on September 7th, the day he was arrested, when notes were made by Dwernichuk of what appellant said. The second was on September 14th during which the notes made by Dwernichuk on September 7th were produced, discussed with appellant, handed to him and, according to Dwernichuk, torn up by appellant as being untrue and following which appellant eventually led the police officers to the place where the body of the deceased, wrapped in a blanket, was found hidden underneath a willow windfall. She had been dead some time as the body was in an advanced state of decomposition.

I do not suggest that the evidence of the finding of the body in the place pointed out to the police officers by appellant or of appellant’s movements

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leading up to the finding of the body were not admissible, but as was held in The Queen v. Wray[10], that does not involve admitting the whole of the confession but only those parts leading up to the finding of the body unless the confession as a whole has been ruled to be voluntary. In the present case, extracts of what appellant said on September 7th and the whole of the interview of September 14th were admitted and in both cases without a voir dire to determine whether either or both statements were made voluntarily. It is true that Staff Sergeant Dwernichuk said that he warned the accused, but that evidence was given in the presence of the jury.

Piché v. The Queen[11], referred to by my brother Ritchie, decided that “exculpatory statements made to a person in authority by an accused shall be subject on a voir dire to the same requirements as inculpatory statements…”. Piché is not authority for the proposition that the question of whether a statement being tendered in evidence by the Crown was or was not voluntary can be decided in the presence of the jury. That situation did not arise in Piché. The only way a trial judge, trying an accused with a jury, can determine whether or not any statement given by the accused to a person in authority being tendered by the Crown is voluntary or involuntary is by holding a voir dire in the absence of a jury. That was not done here and, in my view, it is an error of such consequence that this Court ought not to say that no substantial wrong or miscarriage of justice has occurred.

I would, accordingly, set aside the conviction and direct a new trial.

SPENCE J. (dissenting)—I have had the opportunity of reading the reasons of my brethren Ritchie, Pigeon and Laskin JJ., however, I feel I must deliver short additional reasons. I shall not

[Page 799]

repeat the outline of the facts except in so far as they are relevant to these reasons.

I concur with the view of Pigeon and Laskin JJ. that the five paragraphs in the charge of the trial judge to the jury recited in the reasons of Laskin J. do constitute a misdirection. I cannot, however, agree with Ritchie and Pigeon JJ. that this misdirection did not constitute a fatal error in the charge or that it was cured by other statements in the charge of the learned trial judge in which the rule as to circumstantial evidence was stated correctly. On the other hand, I concur with Laskin J. that the faults pointed out would have the effect of permitting the jury to apply to the assessment of the probative value of the circumstantial evidence a much less stringent test than that set out by Baron Alderson in Hodge’s case[12]. That test has, on numerous occasions, been approved by this Court and its use, although certainly not in its exact words, has been required when the evidence is wholly or largely circumstantial.

In my view, another ruling during the course of the trial resulted in an error which could not be corrected by any statement in the charge and which must result in a new trial. Laskin J. has outlined these circumstances in reference to Staff Sergeant Dwernichuk’s evidence. That officer testified that he interviewed the accused on September 7th, the day on which the latter was arrested. The learned trial judge ruled without carrying on any proper voir dire that the Staff Sergeant’s evidence as to such interview was admissible giving as his reason that the statements made during the interview by the accused were altogether exculpatory. After the trial judge had so ruled, the officer was recalled; he testified that he had warned the accused and that the accused had acknowledged that he knew the meaning of the warning and then the officer outlined in very considerable detail the accused’s account of his actions from June of that year until his arrest on the 7th of September. The Staff Sergeant testified that he had made notes of that long statement by the accused and that later, on the 14th of September, one of the many occasions when he had questioned the accused, the latter tore up such notes.

[Page 800]

Although counsel for the accused cross-examined Staff Sergeant Dwernichuk as to the voluntary nature of that long statement, such cross-examination took place in the presence of the jury. As I have said, there was never a proper voir dire in the absence of the jury. Counsel for the accused was never given an opportunity to adduce evidence as to the voluntary nature of the statement nor to address argument thereon after the Crown’s evidence had been adduced. The argument as to admissibility made in the absence of the jury was prior to the testimony given by the Staff Sergeant and was addressed to the court on the basis of what that evidence would be. The argument and the decision to admit the evidence was solely on the basis that the statement was wholly exculpatory. Counsel for the accused had objected to the admission of the evidence stating the issues in these words:

MR. HUDSON: Oh, yes. It is something that I am aware of, but it is lengthy, and there are two issues to be concerned with. One is, I think, is it exculpatory or inculpatory. And secondly, is it voluntary.

to which the Court had replied:

The voluntariness only applies in the event we find it is inculpatory.

The record contains no transcript of the address of counsel but one may well imagine how damaging would be the Crown’s reference to a statement made by the accused on the day of his arrest the untruth of which the Crown had proved as to one item after another. The learned trial judge, in his charge, as my brethren have pointed out, merely recited short summaries of the evidence of the various witnesses for the Crown, no evidence having been adduced for the defence, in the chronological order in which it had been adduced. His reference to the evidence given on this topic by Staff Sergeant Dwernichuk was:

Staff Sergeant Dwernichuk gave evidence of the accused setting out in detail what he had done from August 14th to September 7th, and further gave evidence of the accused tearing up those notes when he was having a subsequent conversation with him on September 14th. Staff Sergeant Dwernichuk also

[Page 801]

told of the journey which they had made, that is, McLeod, the accused and himself, on September 14th, ending up with finding the body at the location north of 1011.6.

However, much earlier in his charge, the learned trial judge had said:

The Crown’s theory is that the actions of the accused on the night—evening—of August 22nd and during the day at the Chapman home on August 23rd, the false statements which the accused—the Crown alleges the accused made, the fact that the Crown alleges that the accused knew where the body of Graffie George was, all indicate that he knew of her death.

This Court in Piché v. The Queen[13], by its judgment delivered on June 26, 1970, has decided that no statement made by an accused to a person in authority whether such statement is alleged to be exculpatory or inculpatory may be admitted in evidence unless and until its voluntary nature had first been determined on a proper voir dire. That judgment, of course, was delivered long after the date of the learned trial judge’s charge to the jury in the present case. It does, however, set out the law of Canada now and when the present appeal is to be decided and I am of the opinion that it applies particularly to the present case. The result must be that the admission of the accused’s statement to Staff Sergeant Dwernichuk made on the 7th of September without any determination of its voluntary character in a proper voir dire resulted in there being placed before the jury inadmissible evidence of a most important and a most damaging character. The accused, on September 7th, was under arrest. It is true that no charge had been laid and that Staff Sergeant Dwernichuk in his evidence testified that the charges which were then contemplated were those of kidnapping and breaking and entering. The Staff Sergeant admitted, however, that he told the accused he was investigating the whereabouts of Graffie George, as to whose death the accused was convicted of manslaughter. Therefore, there can be no doubt that the accused knew he was in jeopardy when the statement was made.

[Page 802]

In my opinion, the decision of this Court in The Queen v. Wray[14], delivered on the same 26th of June 1970, cannot affect this issue. I am not concerned with the evidence as to the finding of the body of the deceased woman as a result of statements and actions of the accused long after September 7th but I am concerned with the admission of the statement made by the accused on that September 7th without any proper determination of its voluntary character.

I turn finally to the provisions of s. 592(1)(b)(iii) of the Criminal Code. Both of my brethren Ritchie and Pigeon JJ. would apply such section to dismiss the appeal. I must, however, concur with my brother Laskin J. and would refuse to do so. The proper application of that paragraph of the Code had been determined in this Court in a series of cases from Allen v. The King[15] to Colpitts v. The Queen[16] and, in the latter decision at p. 755, the words of the judgment in Brooks v. The King[17] are adopted:

Misdirection in a material matter having been shown, the onus was upon the Crown to satisfy the Court that the jury, charged as it should have been, could not, as reasonable men, have done otherwise than find the appellant guilty.

I am of the opinion that such a test is as applicable to the adducing of inadmissible evidence as to misdirection in the charge. One cannot conclude that a jury properly charged on admissible evidence, that is, without it having heard very damaging and inadmissible evidence, which this jury did hear, could not have done otherwise than convict the accused.

For these reasons, I would allow the appeal and direct a new trial.

PIGEON J.—The facts and the issues in this case are stated in the reasons of my brothers Ritchie and Laskin. Although I am in general

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agreement with the former, I feel obliged to say that taken by themseves, the five paragraphs dealing with circumstantial evidence, at the outset of the charge, would, in my opinion, constitute misdirection.

In the second of those paragraphs, namely the illustration of the difference between direct and circumstantial evidence, the second sentence, the illustration of circumstantial evidence, is, in my view, erroneous in its entirety, not only in the concluding words. Although the facts that (a) “a dagger with an unusually long blade was found in the possession of A”, and (b) “such a dagger could have caused B’s wound”, would be admissible in evidence on a charge that A stabbed B, this could not properly be said to be “circumstantial evidence”. It does no more than reveal a possibility, suggest a conjecture or, at most, raise a suspicion.

The concept of circumstantial evidence as defined by the authorities, especially McLean v. The King[18], requires facts such that their existence is a premise from which the existence of the principal fact may be concluded by necessary laws of reasoning. To support a conviction those facts must be such that guilt can properly be inferred from them by the jury. If the guilt cannot rationally be deduced from the set of facts proved, there is no need to consider the further question whether any other rational conclusion is possible. The question whether the weight of the evidence is sufficient to support a conclusion does not arise: there is no evidence. Such is clearly the situation in the hypothetical case presented to the jury as an illustration of “circumstantial evidence”. I cannot agree with the Court of Appeal that, because this was presented only for the purpose of explaining the distinction between the two kinds of evidence, it is not in itself misleading.

Then, in the last of the five paragraphs above referred to, the jury are told that it is their duty “to give the accused the benefit of the doubt” if “the evidence is equally consistent with the innocence of the accused as with the guilt of the accused”. Although this is literally true, it is, in

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my view, highly misleading because the obvious implication is that if the circumstantial evidence is more consistent with the guilt than the innocence, then they may convict. If, on a criminal charge resting on circumstantial evidence, the facts are equally consistent with innocence as with guilt, it is not a question of giving the accused “the benefit of the doubt”. There is simply no evidence because, as previously stated, circumstantial evidence requires facts from which guilt is the only rational inference. If innocence is an equally rational inference, there is no proof of guilt at all.

I cannot accept that the defect in the last paragraph is overborne by the correct statement of the rule in the immediately preceding paragraph. However, I agree that the rule on circumstantial evidence is nothing more than a formula to assist in applying the accepted standard of proof “beyond a reasonable doubt” to a criminal case resting upon such evidence. It is therefore seriously misleading to couple that rule with a statement that really implies a different and much lower standard.

I have considered it specially necessary to deal at some length with the above-mentioned five paragraphs of the charge because, as pointed out by my brother Laskin, they are taken verbatim from model instructions proposed in a current book. Those are not therefore improvised directions, but prepared instructions written in advance. It is to be hoped that proper steps will be taken to ensure that the necessity of correcting the offending paragraphs is brought to the attention of all users of the work and of its French version as well.

Although for the above reasons I must hold that the five above-mentioned paragraphs constituting the trial judge’s instructions on circumstantial evidence at the beginning of his charge would, if considered by themselves, constitute misdirection, the charge must be considered in its entirety in the context of the actual facts of the case in order to determine whether, on the whole, there is really misdirection. At this point, it must be noted that, after the above-mentioned prelim-

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inary instructions, the judge went on to explain the nature of the offence Charged. In conclusion of that part of his address, after enumerating the elements that must be proved, he said:

Therefore, if after considering all the evidence, the arguments of counsel, and my charge, you come to the conclusion that the Crown has proved to your satisfaction beyond a reasonable doubt, each and every one of such items then in such circumstances it is your duty to find the accused guilty of the offence of manslaughter.

Alternatively, if after considering all the evidence, the arguments of counsel, and my charge, you come to the conclusion that the Crown has failed to prove to your satisfaction, beyond a reasonable doubt, either or both of such items, then in such circumstances it is your duty to give the accused the benefit of that doubt and to acquit him.

In my view, those perfectly clear instructions on the burden of the proof, coming as they did after an enumeration of the elements of the offence, clearly dissipated any unfortunate implication as to the standard of proof, that might have arisen out of the concluding paragraph of the preliminary instructions on circumstantial evidence.

The trial judge then went on “to deal with the theory of the crown’s case” and he concluded that part of his address as follows:

The Crown says the way in which Graffie George met her death was inconsistent with accident—that she met her death while with the accused, and that she met her death by the actions of some other person, and the Crown says that this was the accused. The Crown says there is only one rational conclusion—she died at the hands of the accused, by assault.

Then, going on to the defence theory, he said among other things, after a paragraph quoted by my brother Ritchie:

The Defence says that one rational conclusion that is not inconsistent with the evidence is that Graffie George suffered accidentally a fall on the hills or into the creek which could have rationally caused the injuries in question, and that there are many other rational conclusions as to how the deceased met her death.

[Page 806]

Lastly, before going on to review the evidence, he concluded that part of his address by saying:

…the Crown says if accident was the cause of death, why was the body wrapped, and the Defence answer to the Crown’s theory is that on the Doctor’s evidence—Doctor Morrow’s evidence—death would occur at a time when a person in whose company she was would not know the reason for the death, and being apprehensive would wrap the body. That is the Defence answer to that part of the Crown’s theory.

It is therefore apparent that in explaining the rule on circumstantial evidence in its application to the actual facts of the case, the trial judge always correctly relied exclusively on the proper statement, that is that it must exclude any other rational conclusion. Also he correctly related it to facts which undoubtedly constituted circumstantial evidence and not merely grounds for conjecture or suspicion.

In the instant case, the facts relied on as circumstantial evidence could, in no way, be likened to those in the unfortunate illustration. They undoubtedly came within the proper concept of such evidence and it could not possibly be contended that there was no evidence. Therefore, in view of the manner in which, after the preliminaries, the trial judge put the concrete facts of the case to the jury, I must hold that the unfortunate illustration of the difference between direct and circumstantial evidence cannot possibly have misled the jury and that, on the whole, this regrettable inaccuracy did not constitute misdirection.

I also agree with Ritchie J. that in any event this is a proper case for applying the provisions of s. 592(1)(b).(iii) of the Criminal Code and it is on that basis that I concur in the dismissal of the appeal notwithstanding what was decided in Piché v. The Queen[19].

I would dismiss the appeal.

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LASKIN J. (dissenting)—In this case there was, admittedly, misdirection by the trial judge which, again admittedly, was not cured in any other part of his charge to the jury. We confront hence the recurring question whether, notwithstanding the standing misdirection, the charge taken as a whole was adequate. This question is quite separate from the issue of no substantial wrong or miscarriage of justice. Indeed, there is not the remotest justification for invoking the provisions of s. 592(1)(b) (iii) of the Criminal Code against the accused in this appeal. If the misdirection is fatal to the conviction, the least to which the accused is entitled is a new trial.

I have no doubt that it is fatal, and that there must be a new trial. My reasons will be all the shorter because of the summary of the case, which I adopt, found in the dissenting reasons of Branca J.A. in the Yukon Territory Court of Appeal[20].

The fundamental problem in this appeal is with the legal and factual elements of circumstantial evidence and their relation to the duty of the trial judge in charging the jury thereon. At the forefront of the case, as it was developed through the evidence, were three issues: First, was there an assault of the deceased? Second, did the assault cause the death of the deceased? Third, was the accused the assailant? There was here no direct evidence that any offence had been committed, and no direct evidence to implicate the accused in the offence charged. Although the accused had been living with the deceased, there was no suggestion of any friction between them nor of any motive for the commission of any offence against her.

Since the trial turned completely on the strength of the circumstantial evidence offered by the Crown (the defence proffered no evidence), the important inquiry is whether the trial judge met or failed to meet the obligation resting upon him

[Page 808]

in charging the jury in such a situation. What was he obliged to say about the nature of circumstantial evidence, and did he instruct the jury adequately on the legal standards applicable to circumstantial evidence, before the jury would be warranted in making findings against the accused on the issues in the case?

The following passages, which appear sequentially in the charge, constitute the whole of the trial judge’s direction on the legal and factual aspects of circumstantial evidence:

All of the evidence that has been given in this trial is what is known as circumstantial evidence. To refresh your memory as to the difference between circumstantial evidence, and what is known as direct evidence. I will give you an illustration. If a witness gives evidence that he saw A stab B with a knife, that is direct evidence that A stabbed B. If a witness gives evidence that he found a dagger with an unusually long blade in the possession of A and another witness testified that such a dagger could have caused B’s wound, that is circumstantial evidence tending to prove that A did in fact stab B.

The two forms of evidence are equally admissible but the superiority of direct evidence is that it contains only one source of error, namely the unreliability of human testimony, where circumstantial evidence in addition to the unreliability of human testimony suffers from the difficulty of drawing a correct inference from the circumstantial evidence.

It is therefore my duty to urge you not to find the accused guilty on circumstantial evidence alone, unless you are satisfied, not only that the circumstantial evidence is consistent with the conclusion that the accused committed the offence with which he is charged, but also that the facts which have been proved are such as to be inconsistent with any other rational conclusion than that the accused is guilty of the offence with which he is charged.

If you come to the conclusion that the evidence is equally consistent with the innocence of the accused as with the guilt of the accused, then it is your duty to give the accused the benefit of the doubt and not convict him on circumstantial evidence standing alone.

It is patent that the trial judge did not explain the meaning of circumstantial evidence except by reference to an illustration which was clearly

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unacceptable. With great respect to the majority of the Yukon Territory Court of Appeal, I cannot agree with its conclusion that this error was immaterial because (1) the trial judge’s purpose was merely to illustrate the difference between direct proof and inferential proof; and (2) the improper illustration was followed by a correct statement of the rule in Hodge’s case[21]. This is simply to confound the legal standard, by which, according to Hodge’s case, circumstantial evidence is to be judged, with the reasoning process on which the cogency of circumstantial evidence depends. In my opinion, if the error made by the trial judge is to be regarded as immaterial, it would be because he was not obliged in this case to do more than point out to the jury, in such general words as he in fact used, the difference between direct and circumstantial evidence. I do not see this as being sufficient for the purposes of the case with which he had to deal, and the less so in view of his error in illustration.

Moreover, the deficiency is aggravated by the way in which the trial judge presented the case to the jury. Once he had directed the jury on the law, and had given them the theory of the Crown and stated the defences open on the evidence, he simply narrated (with one important exception to which I will refer later) what each witness had said, without relating the evidence to the issues in the case and without indicating to the jury, either by direct reference or by general caution, the need to distinguish between those facts which were reasonably probative of the issues and those which could not be regarded as justifying inferences to that end.

What is required of a trial judge in charging a jury in a homicide case depends, of course, on the issues and on the nature of the evidence brought to bear upon them. The generalities that a charge need not follow any particular formula and that it must not be “fine-combed” are simply generalities; and the latter observation is as applicable to analysis of a charge to support its adequacy as it is to scrutiny for fatal fault. Why the generalities I have mentioned cannot serve

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as a cover for what I consider to be serious inadequacies in the present case is pointed up by the following references.

First, whether or not an offence had been committed by anyone, resulting in the death of the deceased, depended on the evidence of a pathologist called by the Crown. He found no external abrasions, bruises, cuts or lacerations on the body. An internal examination revealed two bruises on the chest wall over the ribs, but the ribs and chest organs showed no injury. Related to the internal bruises were two haemorrhages of the liver. There was a large bruise in the tissues of the scalp over the crown of the head but no breach of the skin; and although the skull showed no sign of fracture, there was a sub-dural haemorrhage over the left side of the brain, which had been pushed down by the haemorrhage, and this was the cause of death. The witness testified that the bruise on the head was the result of the application of a blunt type of force, and it could come from a self-inflicted bump or from an accidental fall. Death, according to the witness, would not be instantaneous but could take some hours, possibly up to ten, and during this period there would be headaches, sometimes dizziness and staggering.

The medical evidence, taken alone, could not support a finding that the deceased came to her death as a result of the wrongful act of another person, if such a finding had to meet the probative test of being inconsistent with any other rational conclusion. The trial judge made no point of this in his charge, but allowed his narration of the pathologist’s evidence to speak for itself in that respect. I would not regard this as in itself fatal to the charge but it does not stand alone.

Second, the trial judge’s narration of the evidence as given by each witness faltered in respect of the evidence of Staff Sergeant Dwernichuk. That witness gave evidence of statements by the accused made during a one and one-half hour interview on September 7, 1967, the date

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on which the accused was arrested. He was not arrested on any charge but was told only that the police were investigating the whereabouts of the deceased. Interviews were held also on September 8, September 9, September 10, September 11 and September 14. Indeed, as the witness put it “I don’t recall the exact—exact number of times. At least twice a day, and I believe on a few days three times a day”. Notes were taken by the police of what was said by the accused on these occasions but there was no formal reduction to writing of what he had said and nothing was signed by him. On September 14, the notes of the interview of September 7 were handed to the accused and he tore them up. Crown counsel told the trial judge that the accused had asked for the notes, and said, in tearing them up, “that’s not right’ or something to that effect”. Thereafter, on the same day, the accused drove with the police to a number of places and eventually to a place where the body of the deceased was found wrapped in canvas tenting.

What the police sought to put in evidence was the recollection of Staff Sergeant Dwernichuk of what the accused said on September 7 and what was done on September 14. The question of a “voir dire” was raised in respect of the September 7 interview but the trial jury ruled that the proposed evidence was totally exculpatory and was therefore admissible without a voir dire. Defence counsel had also objected to the selective proposal of the Crown to put in only the statements of the one interview and not all the statements made by the accused.

The statements of the accused so put in through the mouth of the Staff Sergeant were a detailed account of his activities and his movements and association with the deceased during the summer of 1967 and particularly from August 14, 1967 until his arrest on September 7. The trial judge’s reference to this evidence was in these words:

Staff Sergeant Dwernichuk gave evidence of the accused setting out in detail what he had done from

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August 14th to September 7th, and further gave evidence of the accused tearing up those notes when he was having a subsequent conversation with him on September 14th. Staff Sergeant Dwernichuk also told of the journey which they had made, that is, McLeod, the accused and himself, on September 14th, ending up with finding the body at the location north of 1011.6.

Counsel for the accused did not challenge the admissibility per se of the evidence of the accused’s statements (once they had been declared to be totally exculpatory), and hence the issue recently canvassed by this Court in Piché v. The Queen[22], decided on June 26, 1970, (and with the disposition of which I agree) did not arise. But he did object to the unbalanced reference to this evidence made by the trial judge, especially in the light of an earlier reference in the charge to “the false statements which the accused—the Crown alleges the accused made”. If the basis of the admissibility of the statements was that they were all exculpatory—and I can only so regard them in the blunt sense that there was no confession of guilt—the trial judge could not let them stand without comment (and without even telling the jury that the statements were evidence for the accused as well as against him), when they involved a variety of admissions which, without proper direction, could mislead the jury into inferences of guilt. The probability of such inferences would be fed by the erroneous illustration of circumstantial evidence given by the trial judge.

Third, the failure of the trial judge to relate the evidence to the issues in the light of the circumstantial nature of the Crown’s case is additionally highlighted by his reference to the evidence of Linda Chapman (who later became Mrs. Boily), and his omission to mention, let alone relate to it, certain qualifying evidence of the witness Kerry. Branca J.A. dealt with this point and I need not review it in detail here.

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Equally relevant to the point under discussion, although not reversible error if considered in isolation, was the evidence relating to the time of the theft of the tent material in which the body of the deceased was wrapped; and also the evidence respecting the box of cut-up wild meat transported by the accused by truck on August 27, evidence which could lead more to conjecture than to inference that the accused was concealing the deceased’s body in the box.

I can best sum up my conclusion that there was fatal non-direction amounting to misdirection in this case by quoting remarks attributed to Baron Alderson, who presided in Hodge’s case, as found in a contemporaneous manuscript report and reproduced in Wills on Circumstantial Evidence (1937, 7th ed.), at p. 45:

It was necessary to warn the jury against the danger of being misled by a train of circumstantial evidence. The mind was apt to take a pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, in considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.

Notwithstanding the fact that the issue determined by this Court in Piché v. The Queen was an open one at the time of the trial herein, I do not think that this should militate against the rights of the accused to enjoy its protection so far as it can be provided in this appeal. Hence, apart from all other considerations canvassed in these reasons, the failure of the Crown to establish the voluntariness of the accused’s statements, albeit they were exculpatory, warrants the quashing of the conviction and a direction for a new trial.

Counsel for the Crown in this appeal conceded that the trial judge had incorrectly mixed up the principle of reasonable doubt with the rule as to circumstantial evidence, but urged that neither this nor other errors were, on an overall assess-

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ment of the charge, fatal to the conviction. The reference to the incorrect mix-up was to the last paragraph of the portions of the charge already quoted and which I repeat here:

If you come to the conclusion that the evidence is equally consistent with the innocence of the accused as with the guilt of the accused, then it is your duty to give the accused the benefit of the doubt and not convict him on circumstantial evidence standing alone.

If the paragraph reflected merely a mix-up of the kind mentioned, I would not have thought that the jury could have been misled because in either case they would have understood the heavy burden of proof upon the Crown. The defect in the paragraph goes, however, beyond the concession of counsel; it suggests a lower burden of proof upon the Crown than proof beyond a reasonable doubt, and is a formulation that ought not to be used. In any event, counsel’s concession requires comment.

Where circumstantial evidence is admitted against an accused, it has become obligatory in this country to charge a jury in accordance with the formula taken from the report of Hodge’s case[23], or for a trial judge sitting alone to pay heed to that formula. I do not regard the formula as fixing a different or higher burden of proof for the Crown to meet than the traditional burden of proof beyond a reasonable doubt. This burden of proof is, of course, the ultimate one, to be met at the conclusion of all the evidence. In a manner of speaking, it may be said that this traditional burden rests upon the Crown with respect to each issue in the particular case. Thus, it is not wrong for a trial judge to instruct the jury, or to direct himself, that where proof of any issue depends on circumstantial evidence alone, that evidence must provide a basis for the necessary inferential proof of that issue to a degree that would make it unreasonable to come to any other conclusion. Indeed, it was pointed out by Cartwright J., as

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he then was, in Lizotte v. The King[24], that a direction in the Hodge terms is obligatory where proof of any essential ingredient of an offence is sought to be made by circumstantial evidence.

I have deliberately used the word “unreasonable” rather than the formula of “inconsistent with any other rational conclusion” because I think it may confuse or create a double standard, to the bewilderment of a jury, if different key words are used to instruct them on their ultimate duty. In a recent judgment of this Court in Wild v. The Queen[25], given on March 19, 1970, both Cartwright C.J.C. and Spence J., each speaking in dissent on the question whether an alleged misapplication of the rule in Hodge’s case raised a question of law, referred to that rule, respectively, as being “only an example of the application of the rule that an accused can be convicted of a criminal offence only if the tribunal is satisfied of his guilt beyond a reasonable doubt” and as involving “a certain degree of intermixture [with] the doctrine of ‘reasonable doubt’”.

These observations indicate to me that it would aid clarity in charging a jury if proof of issues by circumstantial evidence was dealt with in a way that would not suggest that there were possibly colliding or separate burdens of proof in a case involving such evidence. In my opinion, the concurrent use of the Hodge formula and the traditional formula of the burden of proof, in the comprehensive way relative to the case as a whole in which they are often employed, may obscure or lead to the neglect of proper instruction on the meaning of circumstantial evidence and on the process of inference through which the cogency, if any, of circumstantial evidence is manifested. The present case is an example of what I mean in this connection.

I would think it preferable, where all or part of the case against an accused is based on cir-

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cumstantial evidence, to bring only the traditional burden of proof into relation to such evidence, but at the same time to emphasize the function of inference through which that evidence has vitality and show its bearing on the issues to which the evidence is addressed. This approach may better serve to distinguish for the jury, if not also for the trial judge, the difference between appraisal of the credibility and weight of evidence and the burden on the Crown on the whole of it to establish guilt of an accused beyond a reasonable doubt.

In concluding these reasons, I would point out that the illustration of circumstantial evidence used by the trial judge is in the exact words given in Kennedy, Aids to Jury Charges—Criminal (1965), at p. 25; and, indeed, the trial judge borrowed heavily throughout his charge from the model instructions proposed in that book.

In the result, I would allow the appeal, set aside the judgment of the Yukon Territory Court of Appeal and the conviction entered against the accused, and direct a new trial on the charge of manslaughter.

Appeal dismissed, HALL, SPENCE and LASKIN JJ. dissenting.

Solicitors for the appellant: Neilson, Hudson & Anton, Whitehorse.

Solicitor for the respondent: D.S. Maxwell, Ottawa.