Supreme Court of Canada

Wildman v. R., [1984] 2 S.C.R. 311

Date: 1984-10-11

John Arthur Wildman (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

File No.: 16667.

1984: May 2; 1984: October 11.

Present: Dickson C.J. and Beetz, Estey, Mclntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Murder—Trial judge erring in excluding exculpatory evidence—Whether s. 613(1)(b)(iii) of the Code applicable to uphold conviction—Criminal Code, R.S.C. 1970, c. C‑34, s. 613(1)(b)(iii).

Statutes—Amendments—Legislation enacted after trial making accused’s spouse competent to testify—New legislation applicable at new trial—Canada Evidence Act, R.S.C 1970, c. E-10, ss. 4(3.1) [added by 1980-81-82-83 (Can.), c. 125, s. 29(2)], 4(5)—Interpretation Act, R.S.C. 1970, c. I-23, s. 36(d).

Appellant was charged with the first degree murder of his 8 year old stepdaughter and tried by a judge with a jury. The Crown’s case was based entirely on circumstantial evidence. Although considered at the preliminary inquiry, the testimony of two witnesses that related to a telephone conversation between them and the accused’s wife or somebody purporting to be his wife was not admitted at trial. This evidence would have explained why the accused knew of the circumstances of the victim’s death prior to the discovery of the body—the most incriminating evidence adduced against him. The accused’s wife was not called as a witness. In his address to the jury, the Crown explained that the prosecution is prohibited by law from calling the accused’s wife to give evidence and the trial judge did not comment that statement. Appellant was convicted. On appeal, the Court of Appeal found that the trial judge erred in excluding the evidence confirming part of the accused’s testimony but, considering that no substantial wrong or miscarriage of justice had occurred in view of the overwhelming evidence of the accused’s guilt, applied the proviso of s. 613(1)(b)(iii) of the Criminal Code and upheld the conviction. The Court held also that the Crown’s remark did not constitute a comment within the meaning of s. 4(5) of the Canada Evidence Act and could not reasonably have been interpreted by the jury as a suggestion that an innocent accused would

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have called his wife to confirm his testimony. Appellant’s appeal to this Court was on three grounds: (1) this was not a proper case to apply s. 613(1)(b)(iii) of the Code; (2) the trial judge’s silence in respect of the Crown’s remark resulted in an endorsement of the statement and was in effect a misdirection in law to the jury and (3) the Crown’s remark was a comment forbidden by s. 4(5) of the Canada Evidence Act.

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

The trial judge erred in refusing to admit testimony corroborating the accused’s explanation as to how the victim had been killed and s. 613(1)(b)(iii) of the Code could not apply to uphold the verdict. The onus was upon the Crown to satisfy the Court that the verdict “would necessarily have been the same if the errors had not occurred”. Such determination is generally made upon a reading of the evidence put to the jury. But when the error of law is the preclusion of exculpatory evidence, the determination must be made with regard to the entirety of the evidence and in light of the effect the excluded evidence could possibly have had on the evidence that did go to the jury. Any reasonable effect that the excluded evidence could have had on the jury should, in applying s. 613(1)(b)(iii), enure to the benefit of the accused. Here, if admitted, the excluded evidence would have tended to negate the inference that the accused had to be on the scene at the time of the crime to have known the circumstances of the victim’s death—the very inference the jury was concerned about. Without that inference, the evidence put to the jury, while sufficient to support a conviction, would not have made an acquittal unreasonable.

The problems raised by the Crown’s remark will not arise at the new trial: as the victim was under 14 years old, the accused’s wife is a competent and compellable witness for the prosecution without the accused’s consent. This new rule of evidence, which was introduced by s. 4(3.1) of the Canada Evidence Act, is merely procedural and, in accordance with s. 36(d) of the Interpretation Act, will be applicable at the new trial.

Colpitts v. The Queen, [1965] S.C.R. 739, considered; Mahoney v. The Queen, [1982] 1 S.C.R. 834; R. v. Ali, [1980] 1 S.C.R. 221; Bingeman v. McLaughlin, [1978] 1 S.C.R. 548;

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Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, referred to.

APPEAL from a judgment of the Ontario Court of Appeal (1981), 60 C.C.C. (2d) 289, dismissing appellant’s appeal from his conviction on a charge of first degree murder. Appeal allowed and new trial ordered.

R.J. Climie, for the appellant.

David H. Doherty, for the respondent.

The judgment of the Court was delivered by

LAMER J.—The appellant was indicted of the first degree murder of his stepdaughter and, on November 18, 1978, was convicted by a jury in the County of Brant, Ontario. His appeal to the Court of Appeal was unsuccessful but required the application of the proviso of s. 613(1)(b)(iii) of the Criminal Code. Leave to appeal to this Court was granted at large.

A factual overview

On February 15, 1978, the appellant’s 8-year old stepdaughter Tricia disappeared from her school yard before classes had begun. On February 19, 1978, her body was found on the bank of a nearby river. She had been killed by some nineteen blows to the head. A tan coloured hatchet sheath was found twenty-eight inches from the body. Medical evidence indicated that the injuries could have been inflicted by a hatchet. The killing was estimated to have taken place on the day of her disappearance.

The Crown’s case against the appellant was based entirely on circumstantial evidence relating to:

1. motive, that is, Wildman’s enmity toward his wife and to a lesser degree Tricia;

2. opportunity;

3. identification of a man and child by a Mrs. Jean Coubrough;

4. a hatchet, owned by Wildman at one time;

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5. Wildman’s surreptitious disposal of his clothing on February 15, 1978; and

6. false statements made to the police by Wildman after the investigation started on February 15th.

Finally, and, in my view, if unexplained, fatal to the accused, was the fact that he made statements indicating that he had knowledge of the cause of death, the nature and location of the injuries and of the kind of weapon used prior to that information being released by the police, indeed, even prior to the discovery of the body and prior to the police themselves becoming aware of those circumstances.

I will return to the facts and deal more thoroughly with them when disposing of the ground of appeal upon which this appeal should in my view succeed.

At the trial the set of events giving rise to the three grounds of appeal in this Court were twofold: one relating to Wildman’s wife not having testified, the other to a ruling on evidence.

First set of events

The accused’s wife was not called as a witness by either the Crown or by the defence. When addressing the jury, Crown counsel advised the jury as follows:

You are, however, bound by the law, what his Lordship says, and anything I say that sounds like law—and if I am not correct, I’m sure his Lordship will correct me.

One of the points that you have heard a lot of evidence about a woman by the name of Joyce Wildman, who is the wife of the accused. You probably wondered why you haven’t heard from Joyce Wildman. Well, I tell you as a point of law that the prosecution is prohibited by law from calling Joyce Wildman to give evidence.

(Emphasis added.)

The trial judge did not correct that statement of the law, which the appellant takes to be incorrect.

As a result, appellant raises two grounds:

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1. that the judge’s silence resulted in an endorsement of the statement and was therefore in effect a misdirection in law to the jury;

2. Crown counsel’s submission was a comment forbidden by s. 4(5) of the Canada Evidence Act, R.S.C. 1970, c. E-10.

Second set of events

The appellant was denied the right to adduce, through cross-examination, evidence that purportedly would have explained his very incriminating knowledge of the circumstances of the death prior to the discovery of the body. The Court of Appeal having found this ruling wrong in law then applied the proviso of s. 613(1)(b)(iii).

3. Appellant raises as a third ground that this was not a proper case for the application of the proviso.

The Court of Appeal

Many grounds were raised by appellant in the Ontario Court of Appeal (1981), 60 C.C.C. (2d) 289, including one of the three raised in this Court, the one relating to the denial of the right to adduce evidence in regard to the accused’s knowledge of the circumstances of death. As I said, the Court of Appeal agreed with appellant that the trial judge had erred in excluding this evidence (as did the Crown at the trial and in this Court), but agreed with the Crown that, no substantial wrong or miscarriage of justice having been occasioned thereby, it was a proper case to invoke the provisions of s. 613(1)(b)(iii). The test the Court of Appeal purported to apply was as follows (at p. 304):

Before invoking s. 613(1)(b)(iii) we must be satisfied that a reasonable jury, properly instructed, would inevitably have found a verdict of guilty even if the Mclsaacs had given their testimony: MacDonald v. The Queen, (1977), 34 C.C.C. (2d) 1 at p. 12, 75 D.L.R. (3d) 107, [1977] 2 S.C.R. 832 at p. 848.

The other two grounds in this Court, resulting from the Crown’s comments as to Mrs. Wildman’s

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compellability were raised by the Court of Appeal proprio motu, and were disposed of as follows (at p. 295):

Whether or not the appellant’s wife was a competent and compellable witness for the prosecution is a question of some difficulty which was not argued at the trial. Consequently, there was no ruling by the trial Judge upon which this Court is able to voice an opinion and the question is one which in our view should be reserved until it arises squarely for decision. In any case, we do not agree with Mr. Carter’s suggestion that it is possible to construe the trial Judge’s failure to correct Crown counsel as a tacit acceptance by him of the correctness of Crown counsel’s statement of the law.

With respect to Mr. Carter’s second submission, we do not think that Crown counsel’s remarks constituted a comment, within the meaning of s. 4(5), on the failure of the appellant’s wife to testify. In the particular circumstances of this case the remarks were in the nature of an explanation by Crown counsel, in light of his understanding of the law of evidence, for his failure to call Mrs. Wildman. Unlike in R. v. Cooper (No. 2) (1974), 19 C.C.C. (2d) 140, 51 D.L.R. (3d) 221, 5 O.R. (2d) 118, and R. v. Arneson (1930), 54 C.C.C. 330, [1930] 3 W.W.R. 163, 25 Alta. L.R. 125, Crown counsel’s remarks in the present case could not reasonably have been interpreted by the jury as a suggestion that an innocent accused would have called his wife to confirm his testimony. As in the case of Avon v. The Queen (1971), 4 C.C.C. (2d) 357, 21 D.L.R. (3d) 442, [1971] S.C.R. 650, where the Supreme Court of Canada was concerned with somewhat similar remarks by a trial Judge, the language used here was a “statement” explaining the prosecution’s inability to call an accused’s spouse rather than a “comment” disparaging the accused’s ability to use his wife’s imposed silence to cloak his guilt. None the less, we are of the view that Crown counsel’s remarks came perilously close to contravening s. 4(5) and that it would have been preferable if they had not been made. Again, however, if it were necessary, we would apply the provisions of s. 613(1)(b)(iii)of the Code.

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The third ground (the exclusion of evidence and s. 613(1)(b)(iii))

This ground should, with respect, have succeeded in the Court of Appeal and resulted in the ordering of a new trial. There is here no disagreement as to the commission of an error by the trial judge; nor does anyone take issue with the test the Court of Appeal said must be met in order to apply s. 613(1)(b)(iii). Where we part is as regards the proper application of the test to the facts of this case, a matter this Court has declared, for policy reasons, to be a question of law (see Mahoney v. The Queen, [1982] 1 S.C.R. 834).

As announced earlier, I now return to the evidence in this case.

Motive

The appellant and Joyce Wildman married in October 1973 when he was 21 and she was 19. At that time Tricia Paquette was 4 years old. She is the natural daughter of Joyce Wildman, but not of John Wildman. Mrs. Wildman had agreed that John would adopt Tricia after their marriage, but later reneged on this promise. Two children were born to the marriage.

All agree that the marriage was a turbulent one. There were numerous fights and on a few occasions the police had to be called in. They separated on numerous occasions. John Wildman attributed this to his wife’s alcoholism. Donna Dumont, the sister of Joyce Wildman, attributed the separation to John Wildman’s lack of affection for Tricia Paquette and to Mr. Wildman being a thief.

There is substantial evidence of various events, some disproving these assertions, others supportive thereof. I have read the evidence and I am satisfied that there is evidence supportive of the fact that appellant’s animosity towards his wife, whether understandable or not, could in turn be supportive of a motive for his killing Tricia. There is also evidence that he threatened his wife’s life and that of a social worker.

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In June of 1977, when the police were called because of a dispute over the custody of the two younger girls, he said “if Joyce gets the two babies, I will get Tricia”. John Wildman testified that he used the expression “get Tricia” in the sense of getting custody of her, just as, when referring to the two babies, he used the expression “gets the two babies”. The officer who heard this comment took it at the time to have been said in relation to custody. Four witnesses testified that Wildman acted in an appropriate fatherly manner towards Tricia.

Opportunity

There is no need to consider the evidence in any detail. The accused attempted to establish an alibi, but was not successful. Tricia disappeared from school shortly before 9 a.m. on February 15th. The appellant’s first recorded contact with anyone that morning was between 10:15 and 10:45 a.m. when he spoke to his landlady while in his apartment. Tests established that a person could have walked from the school yard to where Tricia’s body was found and from there to appellant’s apartment in fifty minutes.

Identification and the disposal of the clothing

Mrs. Jean Coubrough lived at 94 Grand Street. The back of her property ran to the embankment overlooking the river about 270 feet from where the body was found. On February 15, between 9 and 10 a.m., Mrs. Coubrough saw a man and a child walking down the railroad tracks. The man, she said, walked with a purpose and the child struggled along six feet behind. The child was wearing a blue ski jacket matching the description of the one Tricia was wearing on that day. It is common ground that the man and the child Mrs. Coubrough saw would have been in her field of vision for about 22 to 25 seconds. She described the man as being about 5 feet 3 inches tall, and of the same height but somewhat slimmer than the accused she saw in court. The accused, it was established, had gained 10 pounds while in jail. He was wearing a black knee-length coat, a black hat, but no gloves though it was a very cold morning.

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The hat was what she called “an airman’s hat” turned up in the middle. She saw no glasses on the man, but only saw a profile of the man’s face.

Joyce Smoke, a social worker who had been “handling” the Wildman family, said she was accustomed to seeing John Wildman wear a black hat and a black coat. But, as regards the hat, she was contradicted by her secretary Miss Carvel, and by several other witnesses who said Mr. Wildman did not wear a hat. Mr. Mclsaac said that on February 14 the appellant was wearing a long brown leather coat and tan cowboy boots. Wildman testified he had lost his gloves the night of February 14. He also testified he had put his coat and boots in the garbage on Monday, February 13, and put the garbage out on Wednesday, February 15. This happened about two hours after Tricia went missing. He explained this as the result of a call he received from his wife on February 13.

Q. After—sorry. During this telephone discussion that you had with your wife, was the question of a pair of boots and a coat discussed?

A. Yes, sir, they were.

Q. And at that time did you indicate to your wife, what if anything you were going to do with them?

A. Yes, I told her I was going to throw them in the garbage.

Q. Why was that?

A. Well, she had bought me the boots about six months earlier and she bought me the coat for Christmas, and I was to be indebted for life for them.

Q. What do you mean by that?

A. Well, such things as, there was no heater in her bathroom at 481 Colborne.

Q. Yes?

A. And there wasn’t any in mine at 25 Duke.

Q. Yes?

A. But I had an electric heater, so she wanted that. And I said, “Well, I need it”; she says, “Well─

Q. Well, don’t tell us what she said: you argued over that?

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A. Yes, she said that I should give it to her because she had bought my coat and boots.

Q. And was it in that discussion you said you would throw them away?

And he was seen putting garbage in front of the neighbour’s house, which he explained as follows:

Q. All right. Do you recall when you put those into a garbage bag?

A. On Monday night.

Q. Before or after you talked to Joyce?

A. Well, after; I mean, I hadn’t decided to throw them out until after I had talked to her.

Q. There has been some evidence that you took the garbage bag, I guess westerly towards the store, and put a garbage bag, I think one door down from your place?

A. Yes, sir, I did.

Q. Why did you do that?

A. Because I’m lazy.

Q. What was in it?

A. Garbage.

Q. Okay. Well, why—if you are so lazy—walk one door down and put the garbage out?

A. No—well, we had a problem with dogs ripping garbage apart.

Q. Yes?

A. Now this had—this bag had dirty diapers, bad foodstuffs: like when my wife had left, she left the fridge open and the food in there had gone bad.

Q. Yes?

A. This was all in that bag. I merely took it to the next door neighbour’s house to leave it there; if the dogs tore it apart, I wouldn’t have to clean it up.

Q. All right. About what time was that, that you took

your garbage out?

A. I would say about 11.30, quarter to twelve.

The boots and coat, according to him, were put out in front of his residence while the other garbage bags went to the neighbour’s. There was also

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some evidence, though not conclusive, that Wildman, due to a diabetic condition would, after walking some distance, develop a limp. Mrs. Coubrough did not see the man limp.

The hatchet

The injuries to Tricia’s head could have been caused by a hatchet. A sheath was found 28 inches from the body. A hatchet was located in the water 200 feet from the body. Near the location of the hatchet, on the river’s embankment, was a bloodstained garbage bag; the blood was not inconsistent with Tricia’s. The hatchet fitted snugly into the sheath. Wildman had owned a hatchet and a sheath which he sold to one Daniel Curry. The hatchet disappeared from Curry’s apartment sometime between the middle of January and February 23, 1978. The appellant was at Curry’s apartment on February 9, 1978 and could have stolen it as he was left alone for some time. I do not intend to canvass the evidence in detail. Many witnesses were heard who had seen Wildman’s or Curry’s hatchet. Curry said it had a long black handle, and had “Stainless”, stamped on it. The hatchet found in the river had “Fuller 16 Forged” stamped on it. One Paul Bell said that Curry’s hatchet had “Fuller 16 Forged” stamped on it. Witnesses when looking at the sheath, the markings, the handle, or the colour of the hatchet found near the body and comparing it with their recollection of the one owned by Wildman or by Curry or borrowed from either of them, either concluded that the hatchets were different or, at best, similar, but none could affirm that they were identical let alone the same one. The additional cuts in the sheath and the difference of colour of the hatchet and the sheath found on the scene of the crime that might have misled some of the witnesses could be explained by the forensic testing done on them. But in the end, one could summarize the extensive evidence surrounding the hatchet’s possible identification by saying that the hatchets and sheaths were somewhat similar, but no more.

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The false statements

When questioned by the police as to why he would have put garbage in front of the neighbour’s house, the appellant denied having done so, nor did he mention his disposing of the coat and boots. An expert witness said that the killer’s coat and boots would normally have been bloodstained. Generally speaking, Wildman gave various differing versions as regards the boots, the coat, and the garbage bags, the hatchet, and, through various statements to the police and to others, such as his landlord McIsaac, and Dan Curry, he appears to have given them the run-around intentionally, was very uncooperative and, as a result, his conduct must be regarded as highly suspect.

On this evidence, standing alone, one could not say that a verdict of guilty would have been unreasonable; nor could one consider likewise unreasonable a jury entertaining a reasonable doubt and acquitting. There is strong circumstantial evidence upon which a jury could be satisfied beyond a reasonable doubt, but I would be unable to say that it was overwhelming, as said the Court of Appeal.

What justified the Court of Appeal in finding, as they did, the evidence overwhelming was the result of the following additional evidence.

Tricia disappeared on February 15 and her body was discovered four days later on February 19. Prior to the 19th no one could be sure that Tricia was dead, whether death was self‑inflicted or involved another person, was accidental or intentional, the nature and location of the wounds inflicted, the instrument, if any, used or probably used to inflict the wounds. Yet, on February 16 Wildman phoned a Mr. Beyer, his divorce lawyer, and told him “that his wife had accused him of killing Tricia with an axe”.

After the discovery of Tricia’s body on the 19th, the police, because of the sheath found 28 inches

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from the body, started looking for a hatchet. On that day a press release by the police said that “she had been battered with a blunt instrument”. On that evening the police interrogated Wildman about a hatchet.

On the 20th Wildman said to a witness that “someone put an axe in Tricia’s head”. It was only on February 23 that the police revealed with precision the nature of the wounds, and only on February 28 the use of a hatchet.

On February 19, 23 and 25, the appellant mentioned to various persons that “Tricia had been killed with an axe”. His knowledge of the circumstances of the crime on the 19th, 23rd and 25th is not unexplained. He was questioned with insistance by the police on the 19th about a hatchet and the police press release referred to Tricia having been battered with a blunt instrument. It would not be unreasonable for Wildman to suspect that the police were of the view that the blunt instrument was a hatchet and that some of the wounds, if not all, would be to the head, since Tricia had been “battered” to death. But what needed explanation was his statement to his lawyer on the 16th. Whoever knew those details on that date had to either have participated or witnessed the crime, or have received the information from someone who had. In his testimony he attempted to explain this knowledge; Wildman testified as follows:

Q. Prior to that question of a hatchet being discussed between you and Detective Sergeant Stephenson, had any other police officer told you about a hatchet, or asked you about a hatchet?

A. No, sir.

Q. Had any other person?

A. Yes, sir.

Q. When?

A. On Thursday, the day after Tricia disappeared.

He was not questioned any further about this person because of a ruling the trial judge had made in the course of the Crown’s case.

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The ruling

In the course of cross-examining Mrs. Beverly McIsaac and Mr. Ronald McIsaac, the attorney for the defence was denied the right to elicit the contents of a conversation which took place over the phone at the McIsaacs’ on February 16. Wildman was at the McIsaacs’ when the phone rang. Mrs. McIsaac answered and she identified the voice as being that of Mrs. Wildman. Mrs. Wildman accused her, Mr. McIsaac and John Wildman of “murdering Tricia with a hatchet”. Mr. McIsaac got on the phone and would have corroborated the conversation, though uncertain as to the identity of the voice because he had not, as his wife had many times previously, ever spoken to Mrs. Wildman on the phone. The McIsaacs’ had been examined on the matter at the preliminary inquiry.

Mrs. McIsaac:

Q. I understand, Mrs. McIsaac, that on Thursday night—that would be the day after Tricia Paquette disappeared, I understand that you received a phone call from someone who identified herself as Joyce Wildman. Am I correct?

A. Yes.

Q. The phone call went to your apartment and you answered it?

A. Yes.

Q. Would you agree with me that, whoever made that phone call indicated to you, or sorry, that they accused you and Ron and John Wildman of murdering Tricia Paquette with a hatchet?

A. That is right. They did.

Q. That is the day after Tricia disappeared?

A. Yes.

Q. Did you, prior to that day, ever talk on the telephone with Joyce Wildman?

A. She would phone and start arguing with us and kept calling us murderers and that.

And, later on:

Q. If I might go back to the telephone call you received from someone who said she was Joyce Wildman, on Thursday, during that telephone conversation, did your husband speak to that person?

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A. I answered the phone and my husband got the phone and she called him a murderer and John and I murderers.

Q. Did John talk to that person on the telephone or was it just you and your husband?

A. Just my husband and I.

Q. When she said that you and Ron and John had murdered Tricia with an axe or hatchet, do you remember which it was she said? An axe or hatchet?

A. It was a hatchet, I think.

Q. When she said that, do you remember what you

said to her?

A. I just told her no, we didn’t… have anything to do with it.

Q. Up to that point, was that the first time that you can remember any mention being made of a hatchet, either on the radio or in the newspaper or T.V.?

A. It seemed to me that that person knew about the hatchet before anyone else did.

Q. Was that the first time that the hatchet was

brought to your attention?

A. Yes.

Mr. McIsaac:

Q. I understand, Mr. McIsaac, that, on the Thursday after Tricia was missing, that you received a phone call from a person who told you they were Joyce Wildman; is that correct?

A. Yes.

Q. And in that phone conversation, this woman, who said she was Joyce Wildman, accused you and your wife and John Wildman of killing Patricia with a hatchet?

A. That is right.

Q. I suggest to you that you took the phone from your wife and discussed that, or heard that same accusation from the person who said she was Joyce Wildman; is that correct?

A. Yes.

Q. Up to that point, after Tricia had been missing, had you received any information from the newspaper or radio or T.V.?

A. Yes.

Q. Just a moment. Was there any information, from those sources, that there was a hatchet involved in killing Tricia, or was the phone call the first time that the hatchet was brought to your attention?

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A. Yes, it was the first time.

Q. When you talked to that person on the phone, who said she was Joyce Wildman, did it appear they had been drinking or could you tell?

A. I couldn’t tell.

Q. From the time you became John Wildman’s landlord, you had a number of times to see and talk to Joyce Wildman?

A. Yes.

Q. She came to John’s apartment a number of times?

A. Yes.

Q. Did the voice on the telephone, on Thursday night, accusing you of killing Tricia with a hatchet, did that sound to you like Joyce Wildman’s voice?

A. I really couldn’t say because I never talked to her on the phone before.

All agree that proof of the conversation was admissible and that the trial judge erred in disallowing it. The result is twofold. It left unexplained the most incriminating evidence adduced against Wildman. It also deprived him of the right to put before the jury the fact that, for some reason, his wife, or somebody purporting to be his wife, knew before the body was discovered that Tricia was dead, that she had been murdered and that the instrument used was a hatchet!

The importance of this evidence to the defence was directly proportional to the incriminating effect the evidence it sought to explain had against the accused. Unexplained, that knowledge by the accused was very incriminating and, as I said before, made the circumstantial evidence “overwhelming” as said the Court of Appeal.

Witness the fact that the Crown, when addressing the jury, stressed at some length the fact that Wildman had incriminating knowledge of the circumstances of her death.

Witness also what the trial judge said in his charge:

Mr. Beyer was called by the defence, and he was acting for Wildman. In cross‑examination by Mr. Swan-

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son he said that the accused spoke to him—and I do not recall whether it was on the telephone or in person—on February the 16th—no, he said he had a call from Wildman and that Wildman said that his wife was accusing him of killing Tricia with an axe. That is Thursday the 16th. The child’s body had not yet been found.

The accused, as a result of the exclusion of Mr. and Mrs. McIsaacs’ testimony on that point, was the only one left asserting the existence of this accusation by his wife on the phone.

The trial judge told the jury:

You alone are the judges of the facts. You will have to judge whether that was said and how Joyce could know. Did she tell this to John or accuse him of this? You have to judge, did Mr. Beyer hear that, or is it correctly reported by him, and you may think that Mr. Beyer has no interest in this matter.

The Crown then asks for you to consider Guillemette’s evidence. About three days before the body was found—no, I will deal with this aspect of it in a moment.

If you do not accept the evidence that Joyce told him on Thursday, February the 16th, that Tricia was killed with an axe, how could he know? The Crown says that the only person or persons who could know were the person or persons who in fact used that axe to kill Tricia. You will recall that the gentleman who owned the hairdressing establishment was called, and he said that Joyce was working there from fairly early in the morning on Wednesday the 15th until 4.00 o’clock in the afternoon.

If you accept his evidence, then Joyce was not at the river that morning with Tricia.

The jury’s request is very eloquent as regards the importance of the evidence of the knowledge and, as a corollary, the damaging effect of excluding its explanation.

After four hours of deliberation the jury returned and asked the judge the following:

FOREMAN OF THE JURY: We would like the details of the timing relative to the January 20th events concerning the receptionist at the Children’s Aid Society, of Joyce Smoke, Detective White, and Mr. Wildman’s personal recollection of that time period.

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We would like to re-hear the testimony of the solicitor, Mr. Beyer.

His LORDSHIP: The whole of it?

THE FOREMAN OF THE JURY: Your lordship, we feel it is relatively short and we would like to hear what he has to say.

As regards Mr. Beyer’s testimony, the judge read his personal notes to the jury, and said:

Now, if you are not satisfied with that, would you like to hear the tape?

FOREMAN OF THE JURY: Sir, I would like to hear, I would like to hear the last portion of the tape pertaining to the discussion re the remarks attributed to Mrs. Wildman, made to Mr. Beyer by Mr. Wildman regarding the hatchet.

His LORDSHIP: All right.

After hearing the tape, the jury retired and came back an hour and a half later with a verdict of guilty.

Mr. Beyer’s testimony was crucial and in fact fatal to the accused. The judge put the matter quite properly when he told the jury that if they did not accept the accused’s (sole) evidence that Joyce had told him “that Tricia was killed with an axe, how could he know?”

The judge was quite right in this. And the inference to be drawn from this knowledge of the accused would then be that he had to have been there.

The proviso of s. 613(1)(b)(iii)

As regards resort by a Court of Appeal to the proviso of s. 613(1)(b)(iii) the law has been clearly laid down by this Court in Colpitts v. The Queen, [1965] S.C.R. 739. Cartwright J.’s formulation of the test was as follows, at p. 744:

…once error in law has been found to have occurred at the trial, the onus resting upon the Crown is to satisfy the Court that the verdict would necessarily have been the same if such error had not occurred. The satisfaction of this onus is a condition precedent to the right of the Appellate Court to apply the terms of the subsection at all. The Court is not bound to apply the subsection merely because this onus is discharged.

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Under our system of law a man on trial for his life is entitled to the verdict of a jury which has been accurately and adequately instructed as to the law. The construction of s. 592(1)(b)(iii) contended for by the Crown in this case would transfer from the jury to the Court of Appeal the question whether the evidence established the guilt of the accused beyond a reasonable doubt. To adapt the words of Lord Herschell in Makin v. Attorney General for New South Wales, [1894] A.C. 57 at 70, the judges would in truth be substituted for the jury, the verdict would become theirs and theirs alone, and would be arrived at upon a perusal of the evidence without any opportunity of seeing the demeanour of the witnesses and weighing the evidence with the assistance which this affords.

The determination as to whether the verdict “would necessarily have been the same if such error had not occurred” is generally made upon a reading of the evidence put to the jury.

But when the error of law is the preclusion of exculpatory evidence, then the determination must be made with regard to the entirety of the evidence, that evidence having been included, and in the light of the effect the excluded evidence could, within reason, possibly have had on the evidence that did go to the jury. Any reasonable effect that excluded evidence could have had on the jury should, in applying s. 613(1)(b)(iii), enure to the benefit of the accused. When the excluded evidence is, as in this case, of a certain importance and might reasonably have had an effect on the jury then, even assuming we in this Court would have nevertheless convicted, I find it difficult to be satisfied that the jury would have necessarily agreed with us. Any reasonable, possible effect of that excluded evidence on the jury should enure to the benefit of Wildman.

The effect of the McIsaacs’ testimony would have been to corroborate the accused’s explanation and thereby to tend to negate the inference that the accused had to have been there—the very inference that the jury was concerned about. Had that evidence been adduced, it would have then been open to the jury not to entertain the inference and, as a result, we would then be left with evidence which, as I have already stated, while sufficient to support a conviction, would not make an acquittal unreasonable; therefore the Crown has

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not, in my respectful view, met the onus of satisfying me “that the verdict would necessarily have been the same”, had the defence been allowed, as was its right, to adduce the evidence of the telephone conversation of February 16 (see Colpitts v. The Queen, supra). I would, therefore, on this ground allow the appeal, and order a new trial.

The other grounds

The other two grounds for appeal can be disposed of together. Being of the view that a new trial should be ordered, I would normally, in order to avoid any further appeal arising out of those grounds, deal with the matter as to whether the spouse would, at the trial be a compellable witness under the circumstances of this case and, if not, whether and to what extent comment could be made by the Crown as to why she was not called to testify. But those problems will not arise at the new trial in view of the introduction to s. 4 of the Canada Evidence Act supra, of subs. (3.1), which covers the situation as follows:

(3.1) The wife or husband of a person charged with an offence against any of sections 203, 204, 218, 219, 220, 222, 223, 245, 245.1, 245.2 or 245.3 of the Criminal Code where the complainant or victim is under the age of fourteen years is a competent and compellable witness for the prosecution without the consent of the person charged.

The new trial will be governed by that section.

Indeed s. 36(d) of the Interpretation Act, R.S.C. 1970, c. I-23, states that:

36. Where an enactment (in this section called the “former enactment”) is repealed and another enactment (in this section called the “new enactment”) is substituted therefor,

(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto in the recovery or enforcement of penalties and forfeitures incurred, and in the enforcement of rights, existing or accruing under the former enactment or in a proceeding in relation to matters that have happened before the repeal;

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This is an enactment of the common law rule that there is no vested right in procedure along with a limitation to the effect that the following of the new procedure must be feasible (see R. v. Ali, [1980] 1 S.C.R. 221). Therefore, a new procedure applies to pending suits without breaching the “rule of interpretation to the effect that statutes ought, if possible, to be interpreted so as to respect vested rights” (see E.A. Driedger, “The Retrospective Operation of Statutes”, Legal Essays in Honour of Arthur Moxon, University of Toronto Press, 1953, pp. 5 et seq.) Section 36(J) of the Interpretation Act uses procedure in a wide sense and that expression includes the rules of evidence. On the point, Phipson on Evidence, 13th ed., 1982, at p. 1:

Law is commonly divided into substantive law, which defines rights, duties and liabilities; and adjective law, which defines the procedure, pleading and proof by which the substantive law is applied in practice.

The rules of procedure regulate the general conduct of litigation; the object of pleading is to ascertain for the guidance of the parties and the court the material facts in issue in each particular case; proof is the establishment of such facts by proper legal means to the satisfaction of the court, and in this sense includes disproof. The first-mentioned term is, however, often used to include the other two.

(Emphasis added.)

Some rules of evidence must nevertheless be excluded for they are not merely procedural, they create rights and not merely expectations and, as such, are not only adjectival but of a substantive nature. Such has been found to be the case for rules or laws creating presumptions arising out of certain facts. (See, for example, as regards the presumption of advancement in questions of ownership of property as between husband and wife, Bingeman v. McLaughlin, [1978] 1 S.C.R. 548.) P. Roubier, in Le droit transitoire, 2nd ed., Paris, Dalloz et Sirey, 1960, at p. 237, rationalizes their exclusion because, says he, [TRANSLATION] “As these rules are independent of the existence of an issue, they are not affected by the fact that there is

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litigation in progress”. Such is also the case of the lawyer-client privilege resulting from a person’s right to the confidentiality of his lawyer, irrespective of whether there is litigation, (see Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860). The courts, for obvious reasons of logic, have not excluded under new laws, for want of certain new prerequisites to its admissibility, evidence which had complied with the prerequisites of the previous. R. v. Ali, supra, is an illustration of this approach, using the proviso “as far as it can be adapted thereto” of s. 36(d) of the Interpretation Act. (For a more thorough review of the case law on the matter, see Pierre-André Côté, Interprétation des lois (1982), at pp. 155 et seq.) But such is not the case as regards a spouse’s incompetence to testify.

Spouses do not have a substantive right to the confidentiality as to what either was seen doing by the other or to the confidentiality of what was to the other communicated by either.

The incompetence and uncompellability of s. 4 of the Canada Evidence Act, supra, is not the result of a substantive right to confidentiality and is merely procedural.

If a new trial ensues, Mrs. Wildman will be a competent and compellable witness for the prosecution without the consent of the accused.

To conclude, I would allow the appeal, quash the conviction and order a new trial.

Appeal allowed and new trial ordered.

Solicitor for the appellant: Robert J. Carter, Toronto.

Solicitor for the respondent: The Ministry of the Attorney General for Ontario, Toronto.