Supreme Court of Canada

Kirsch et al. v. The Queen, [1981] 1 S.C.R. 440

Date: 1981-05-11

Irving Kirsch and Herschel Rosenthal Appellants;

and

Her Majesty The Queen Respondent.

1981: March 30; 1981: May 11.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, Mclntyre and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Convictions for conspiring to affect public market price of shares—Prosecution evidence by accomplices—Judge left jurors the option of considering corroborative parts of evidence—Parts suggested to jurors as corroborative in fact were not corroborative—Error of law—Section 613(1)(b)(iii) not applicable—New trial ordered—Criminal Code, R.S.C 1970, c. C-34 as amended, ss. 338(2), 423(1)(d), 613(1)(b)(iii).

Kirsch and Rosenthal were charged with conspiring to affect the public market price of shares of Buffalo Gas and Oil Ltd. As the witnesses for the prosecution were accomplices, the judge warned the jurors against the danger of finding the accused guilty on the basis of this testimony alone. He told them what parts of the evidence were capable of constituting corroboration and left them free to find corroboration in other parts of the evidence. Counsel for the Crown also indicated to the jurors as being capable of providing corroboration evidence which as a matter of law could not. Kirsch and Rosenthal were found guilty and appealed. The appeal was dismissed.

Held: The appeal should be allowed and a new trial is ordered.

The trial judge erred in failing to instruct the jury that the parts of the evidence which counsel for the Crown had suggested as being capable of providing corroboration in fact could not, and that they were not entitled to regard them as such. The Court does not think that this is the kind of error which should be dealt with by resort to s. 613(1)(b)(iii), as respondent did not demonstrate that without this error the verdict would of necessity have been the same.

As to whether the judge should tell the jurors to confine themselves to the corroborative points he had

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indicated to them, the Court was not required to answer this question for the purposes of this appeal.

R. v. Racine (1977), 1977 2106 (ON CA), 32 C.C.C. (2d) 468, referred to.

APPEAL from a decision of the Court of Appeal of Quebec dismissing an appeal by appellants and affirming their conviction by a judge sitting with a jury. Appeal allowed.

Michel Proulx, for the appellant Kirsch.

Jeffrey K. Boro, for the appellant Rosenthal.

Gabriel Lapointe, Q.C., for the respondent.

English version of the judgment of the Court delivered by

LAMER J.—The two appellants are challenging by their appeal the judgment of the Court of Appeal for Quebec, dismissing the appeal brought by them from the verdict of an assize jury in the judicial district of Montreal, finding them guilty on the following indictment:

…IRVING KIRSCH and HERSCHEL ROSENTHAL, at Montreal, district of Montreal, between December 1st, 1971 and March 31st, 1972, conspired with ROBERT BROADLEY, JAMES DANIELSON, STEPHEN DINNEEN, FRED GABOURIE, RON GOLDEN, and PAOLO VIOLI to commit an indictable offense not provided for in paragraphs (a), (b), or (c), to wit: by deceit, falsehood or other fraudulent means, whether or not a false pretence, with intent to defraud, affect the public market price of shares of BUFFALO GAS AND OIL CORPORATION LIMITED that were being offered to the public, the whole contrary to Section 423, paragraph (d), in relation to Section 338, paragraph (2) of the Criminal Code…

It is common ground that the evidence for the prosecution was provided in part by witnesses who are “accomplices” under the rules of evidence. In his charge to the jury the trial judge, as he was in law required to do, warned them against the danger of finding the accused guilty on the basis of uncorroborated testimony of accomplices; he explained to them what an accomplice witness is, and the meaning of corroboration, told them that they had to decide whether these witnesses were accomplices, and that if they found them to be so, they should guard against the danger of finding the accused guilty on the basis of the uncorroborated testimony of these accomplices. Appel-

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lants agreed that these directions to the jury by the trial judge are not subject to challenge.

After performing this duty in accordance with the law, the judge went on to say:

But to assist you in this connection, I would like to call to your attention—and it’s my duty to call to your attention—those pieces of evidence that exist which are capable of being corroboration.

It will be for you to decide whether in fact they do corroborate the evidence of the accomplices; but it is my duty to at least put them before you as the kind of evidence which is susceptible of being corroboration.

And of course I do not pretend to offer you an exhaustive list of the items of possible corroborative evidence. I think you can examine all of the facts and circumstances in the case and, providing you conclude that they do meet the test of corroboration that I mentioned to you earlier, you’re entitled to consider them.

But I’d like to put before you now the elements that come to my mind which can, if you accept them and believe them, serve as corroboration in the direct evidence given by Danielson and Dinneen. [My emphasis]

Appellants are challenging this procedure, which was approved by the Court of Appeal for Quebec, arguing, with the support of the Court of Appeal for Ontario in R. v. Racine[^1], that the judge not only had a duty to indicate to the jury what evidence in the case at bar was capable of constituting corroboration, but also had to tell them that they should confine themselves to the points he had indicated to them and should not, as he did, have left them free to search through other parts of the evidence, using his definition of corroborative evidence.

There is however another ground raised by appellants and which was pleaded as an alternative, and which is more a matter particular to the facts of this case than one of principle.

When arguing his case before the jury, counsel for the Crown indicated to the jurors as being capable of providing corroboration evidence which, as a matter of law, could not; this was acknowledged by respondent Crown.

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The trial judge, who had left the jurors free to find corroboration in parts of the evidence other than those which he had indicated, did not instruct them that the parts of the evidence which the Crown had suggested as being capable of providing corroboration in fact could not, and that they were not entitled to regard them as such.

It is for this reason that appellants now argue before us that, even assuming that the judge committed no error of law by proceeding as he did, he should have—and not having done so was a fatal error on his part—nevertheless warned the jurors that they could not accept the Crown’s suggestion as regards the corroborative value of those passages of the evidence. With this I agree.

It is therefore not necessary to deal with the main ground of appeal.

Furthermore, respondent in her brief and orally at the hearing in this Court took no position on the main ground, and on both grounds merely relied on the provisions of s. 613(1)(b)(iii) of the Criminal Code so that we have not had the advantage of hearing argument in support of the position adopted as regards the main ground by the trial judge and by the Court of Appeal for Quebec.

As for the omission by the judge to instruct the jury properly as regards the Crown’s remarks to them, I do not think this is the kind of error which should be dealt with by resort to s. 613(1)(b)(iii). Respondent did not demonstrate to my satisfaction that without this error the verdict would of necessity have been the same.

Before concluding, I think it only fair to point out that the ground upon which I would allow this appeal was not raised in the Quebec Court of Appeal.

I would allow the appeal, set aside the judgment of the Quebec Court of Appeal and direct a new trial.

Appeal allowed.

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Solicitors for the appellant Kirsch: Proulx, Barot & Dupuis, Montreal.

Solicitor for the appellant Rosenthal: Jeffrey K. Boro, Montreal.

Solicitors for the respondent: Lapointe, Schachter & Champagne, Montreal.

[^1]: (1977), 1977 2106 (ON CA), 32 C.C.C. (2d) 468.