Boucher v The Queen [1955] SCR 16

[This version of the judgment has been edited by Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

Dr Charles Smith Homepage
Canadian Issues Homepage
List of Australian, UK and USA miscarriage of justice cases
Article on Australian miscarriage of justice cases
Article on UK miscarriage of justice cases
Article on USA miscarriage of justice cases

9 December 1954 – Supreme Court of Canada

B was found guilty of murder. His appeal to the Court of appeal was unanimously dismissed. He now appeals to this Court, by special leave, on grounds of misdirection with reference to reasonable doubt, circumstantial evidence and inflammatory language used by Crown counsel in his address to the jury.

Held (Taschereau and Abbott JJ dissenting)

The appeal should be allowed, the conviction quashed and a new trial ordered. There was no misdirection in the trial judge's charge with respect to the doctrine of reasonable doubt. Difficulties would be avoided if trial judges would use the well known and approved adjective "reasonable" when describing that doubt which is sufficient to require the jury to return a verdict of not guilty. There was misdirection by the trial judge with reference to the rule as to circumstantial evidence. Neither the language of R v Hodge 1838 nor anything remotely approaching it was used. Even though expressions other than the ones used in the Hodge case are permissible, a trial judge should use the well settled formula and so obviate questions arising as to what is its equivalent.

Crown counsel exceeded his duty when he expressed in his address by inflammatory and vindictive language his personal opinion that the accused was guilty and left with the jury the impression that the investigation made before the trial by the Crown officers was such that it had brought them to the conclusion that the accused was guilty. It is improper for counsel for the Crown or the defence to express his own opinion as to the guilt or innocence of the accused. The right of the accused to have his guilt or innocence decided upon the sworn evidence alone uninfluenced by statements of fact by the Crown prosecutor, is one of the most deeply rooted and jealously guarded principles of our law. It could not be safely affirmed that had such errors not occurred the verdict would necessarily have been the same. There was a substantial wrong and consequently the proviso had no application.

Per Taschereau and Abbott JJ. (dissenting) : As the verdict would have necessarily been the same there had been no substantial wrong or miscarriage of justice.

The Chief Justice

Was the jury misdirected by the learned trial judge with reference to the doctrine of reasonable doubt? The trial judge, in my view, did not misdirect the jury, but the difficulties occasioned by what he did say would not arise if trial judges would use the well-known and approved word "reasonable" when describ­ing that doubt which is sufficient to enable a jury to return a verdict of not guilty.

Was the jury misdirected by the learned trial judge with reference to the rule as to circumstantial evidence? The evidence against B was entirely circum­stantial. "In such cases", as this Court pointed out in The King v Comba "by the long settled rule of the com­mon law, which is the rule of law in Canada, the jury, before finding a prisoner guilty upon such evidence, must be satisfied not only that the circumstances are consistent with a conclusion that the criminal act was committed by the accused, but also that the facts are such as to be incon­sistent with any other rational conclusion than that the accused is the guilty person". This, of course, is based upon the decision in R v Hodge 1838 and, while we stated in McLean v The King 1933 "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.", in this case neither that language, nor anything remotely approaching it was used. Even though, according to the judgment in McLean, other expressions might be permitted, the experience of the Courts in Canada in the last few years justifies a further warning that a trial judge should use the well settled formula and so obviate questions arising as to what is its equivalent. Because of the misdirection in this case, the conviction cannot stand, unless the Court, exercising the power conferred upon it by the Criminal Code, considers that there has been no substantial wrong or miscarriage of justice.

Was B deprived of a trial according to law by reason of the fact that the crown counsel used inflammatory language in his address to the jury? It is the duty of crown counsel to bring before the Court the material witnesses, as explained in Lemay v The King 1952. In his address he is entitled to examine all the evid­ence and ask the jury to come to the conclusion that the accused is guilty as charged. In all this he has a duty to assist the jury, but he exceeds that duty when he expresses by inflammatory or vindictive language his own personal opinion that the accused is guilty, or when his remarks tend to leave with the jury an impression that the investiga­tion made by the Crown is such that they should find the accused guilty. In the present case counsel's address infringed both of these rules.

The test to be applied was laid down in Schmidt v The King 1945: "that the .onus rests on the crown to satisfy the Court that the verdict would necessarily have been the same". While I am inclined to the view that that test has been met, I understand that several members of the Court think otherwise and, therefore, under the circumstances of this case, I will not record a dissent.

Rand J

Many, if not the majority of, jurors acting, it may be, for the first time, unacquainted with the language and proceedings of courts, and with no precise appreciation of the role of the prosecution other than as being associated with gov­ernment, would be extremely susceptible to the implications of such remarks as were here made by the prosecutor. So to emphasize a neutral attitude on the part of Crown representatives in the investigation of the facts of a crime is to put the matter to unsophisticated minds as if there had already been an impartial determina­tion of guilt by persons in authority. Little more likely to colour the consideration of the evidence by jurors could be suggested. It is the antithesis of the impression that should be given to them: they only are to pass on the issue and to do so only on what has been properly exhibited to them in the course of the proceedings.

It is difficult to reconstruct in mind and feeling the court room scene when a human life is at stake; the tensions, the invisible forces, subtle and unpredictable, the significance that a word may take on, are sensed at best imperfectly. It is not, then, possible to say that this reference to the Crown's action did not have a persuasive influence on the jury in reaching their verdict. The irregularity touches one of the oldest principles of our law, the rule that protects the subject from the pressures of the executive and has its safeguard in the independence of our courts. It goes to the foundation of the security of the individual under the rule of law.

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be clone firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion 'of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the just­ness of judicial proceedings.

The answer of the Crown is that notwithstanding these objectionable features, there has been no substantial miscarriage of justice; that the proof of guilt is overwhelming and that the jury, acting judicially, must necessarily have come to the same verdict.

The Criminal Code provides that the Court may also dismiss the appeal if, notwithstanding that it is of opinion that on any of the grounds above mentioned the appeal might be decided in favour of B, it is also of opinion that no substantial wrong or miscarriage of justice has actually occurred. This Court, on an appeal, shall make such rule or order thereon in affirmance of the conviction or for granting a new trial, or otherwise, or for granting or refusing such appli­cation, as the justice of the case requires.

The Court is to exercise its discretion in the light of all the circumstances. Appreciating to the full the undesirability, for many reasons, of another trial, I find myself driven to conclude that nothing short of that will vindicate the fundamental safe-guards to which the accused in this case was entitled. The conviction, therefore, must be set aside and a new trial directed.

Locke J

The failure to direct the jury upon what may be called the rule in Hodge's case appears to me to be directly contrary to the unanimous decision of this Court in Lizotte v The King 1951. It has always been accepted in this country that the duty of persons entrusted by the Crown with prosecutions in criminal matters does not differ from that which has long been recognized in England.

In R v Thursfield 1838, counsel for the Crown stated what he considered to be his duty in the following terms:

“that he should state to the jury the whole of what appeared on the depositions to be the facts of the case, as well those which made in favour of the prisoner as those which made against her, as he apprehended his duty, as counsel for the prosecution, to be, to examine the witnesses who would detail the facts to the jury, after having narrated the circum­stances in. such way as to make the evidence, when given, intelligible to the jury, not considering himself as counsel for any particular side or party.”

Baron Gurney, who presided, then said: The learned counsel for the prosecution has most accurately con­ceived his duty, which is to be assistant o the Court in the furtherance of justice, and not to act as counsel for any particular person or party.

R v Ruddick1865 said: I hope that in the exercise of the privilege granted by the new Act to counsel for the prosecution of summing up the evidence, they will not cease to remember that counsel for the prosecution in such cases are to regard themselves as ministers of justice, and not to struggle for a con­viction, as in a case at Nisi Prius nor be betrayed by feelings of pro­fessional rivalry; to regard the question at issue as one of professional superiority, and a contest for skill and preeminence.

An article entitled "The Ethics of Advocacy", written by Mr Showell Rogers, appears in Vol. XV of the Law Quart­erly Review, in which the cases upon this subject are reviewed and discussed. Speaking of the principles above referred to, the author says:

“Any one who has watched the administration of the criminal law in this country knows how loyally - one might almost say how religiously - this principle is observed in practice. Counsel for the Crown appears to be anything rather than the advocate of the particular private prosecutor who happens to be proceeding in the name of the Crown. When there is no private prosecutor, and the proceedings are in the most literal sense instituted by the Crown itself, the duty of prosecuting counsel in this respect is even more strictly to be performed.”

These are the principles which have been accepted as defining the duty of counsel for the Crown in this country. In R v Chamandy 1934, Justice Riddell, speaking for the Ontario Court of Appeal, put it this way:

“It cannot be made too clear, that in our law, a criminal prosecution is not a contest between individuals, nor is it a contest between the Crown endeavouring to convict and the accused endeavouring to be acquitted; but it is an investigation that should be conducted without feeling or animus on the part of the prosecution, with the single view of determining the truth.”

In the last Edition of Archbold's Criminal Pleading, Evidence and Practice, the learned author says that prosecuting counsel should regard themselves rather as ministers of justice assisting in its administration than as advocates.

It is improper, in my opinion, for counsel for the Crown to express his opinion as to the guilt or innocence of the accused. In the article to which I have referred it is said that it is because the character or eminence of a counsel is to be wholly disregarded in determining the justice or otherwise of his client's cause that it is an inflexible rule of forensic pleading that an advocate shall not, as such, express his personal opinion of or his belief in his client's case.

A address by the late Justice Rose, which is reported in Vol. XX of the Canadian Law Times, referred to the Rogers' article, and pointed out a further objection to any such practice in the following terms:

“Your duty to your client does not call for any expression of your belief in the justice of his cause ... The counsel's opinion may be right or wrong, but it is not evidence. If one counsel may assert his belief, the opposing counsel is put at a disadvantage if he does not state that in his belief his client's cause or defence is just. If one counsel is well known and of high standing, his client would have a decided advantage over his opponent if represented by a younger, weaker, or less well known man.”

In my opinion, these statements accurately define the duty, of Crown counsel in these matters. Some of the statements by the prosecutor in this case were statements of fact and not argument and, in making them, counsel for the Crown was giving evidence. The matters stated were wholly irrelevant and, had the counsel in question elected to go into the witness box to make these statements on oath, the proposed evidence would not have been heard. In this manner, however, these facts were submitted to the jury for their consideration.

The statements were calculated to impress upon the jury the asserted fact that, before the accused had been arrested, the Crown, with its experts, had made a thorough investiga­tion and was satisfied that he was guilty beyond a reason-able doubt. Introduced into the record in this manner, there could be no cross-examination to test their accuracy.

The Crown prosecutor, having improperly informed the jury that there had been an investigation by the Crown which satisfied the authorities that the accused was guilty, thus assured them on his own belief in his guilt and employed language calculated to inflame their feelings against him.

In Nathan House 1921, where a conviction was quashed on the 3 grounds of misreception of evidence, misdirec­tion and the conduct of counsel, the LCJ, referring to the fact that counsel for the Crown had made an appeal to religious prejudice in his address to the jury, said that: “the language complained of was highly improper and that it was impossible to. say that it could not have influenced the jury”.

In delivering the judgment of the House of Lords in Maxwell v Director of Public Prosecutions 1934, Lord Sankey, LC said:

“... it must be remembered that the whole policy of English criminal law has been to see that as against the prisoner every rule in his favour is observed and that no rule is broken so as to prejudice the chance of the jury fairly trying the true issues.”

The right of the accused in this matter to have his guilt or innocence decided upon the sworn evidence alone, uninfluenced by statements of fact by the Crown prosecutor bearing directly upon the question of his guilt, and to have the case against him stated in accordance with the foregoing principles, were rights which may be properly described, to adopt the language of the Lord Chancellor in Maxwell's case, as being two "of the most deeply rooted and jealously guarded principles of our criminal law."

The infringement of these rights was, in my opinion, a substantial wrong, within the meaning of the Criminal Code, and accordingly the proviso has no application to this case: Makin v Attorney General for New South Wales 1894; Allen v The King 1911; Northey v The King 1948. I would allow this appeal, set aside the judgment of the Court of Appeal and the verdict at the trial and direct that there be a new trial.

See also

Dr Charles Smith Homepage
Canadian Issues Homepage

Top of Page