New trial ordered where judge questioned jurors in accused's absence and improperly refused to amend indictment.
The accused were charged with unlawful possession of stolen bonds, conspiracy to defraud, and attempt to defraud the Bank of Montreal.
The trial judge directed a verdict of acquittal on the fraud counts, finding no evidence of intent to defraud the Bank of Montreal, and refused to amend the indictment.
During jury deliberations on the possession count, the trial judge questioned two jurors in chambers without the accused present regarding the impartiality of other jurors.
The jury convicted on the possession count.
The Court of Appeal ordered a new trial on all counts.
The Supreme Court of Canada dismissed all appeals, holding that the in-chambers inquiry violated the accused's right to be present at trial under s. 577 of the Criminal Code, and that the indictment should have been amended to remove the reference to the Bank of Montreal as it was mere surplusage and caused no prejudice.
Breach of trust conviction quashed as Crown failed to prove accused was a trustee; fraud upheld.
The appellant was convicted of fraud, breach of trust, and theft relating to construction funds.
He appealed to the Supreme Court of Canada, arguing he was not a trustee under the Mechanics' Lien Act and that the verdicts were incompatible.
The Court allowed the appeal in part, quashing the breach of trust conviction because the Crown specifically charged him as 'being a trustee' rather than as an aider and abettor, and failed to prove that averment.
The convictions for theft and fraud were upheld as they were not incompatible.
