Guillemette v. The Queen, [1986] 1 S.C.R. 356

Guy Guillemette Appellant;

and

Her Majesty The Queen Respondent.

File No.: 18145.

1985: October 29; 1986: April 24.

Present: Dickson C.J. and Beetz, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.

on appeal from the court of appeal for quebec

Criminal law ‑‑ Power of a court of appeal ‑‑ Appeal by accused from conviction for manslaughter ‑‑ Court of Appeal ordered new trial on original charge of second‑degree murder ‑‑ Excess of jurisdiction ‑‑ New trial ordered by Supreme Court on charge of manslaughter ‑‑ Supreme Court jurisdiction limited by nature of appeal ‑‑ Criminal Code, R.S.C. 1970, c. C‑34 as amended, ss. 603(1), 605(1)(a), (2), 613(1)(a), (2), (4), 618(2)(a), 623(1).

Appellant was charged with second‑degree murder and convicted by a jury of the included offence of manslaughter. He appealed this conviction. The Crown chose not to appeal the acquittal for murder. The Court of Appeal allowed the appeal but, instead of acquitting appellant or ordering a new trial on the charge of manslaughter, the Court ordered a new trial to be held on the original charge of second‑degree murder. Appellant appealed from this judgment. This appeal is to determine whether, as the Crown did not appeal, the Court of Appeal erred in law in ordering a new trial to be held on the initial charge.

Held: The appeal should be allowed and a new trial ordered on the charge of manslaughter.

As the Crown did not appeal the acquittal for murder, the Court of Appeal committed an error of law in ordering a new trial on the initial charge. It exceeded its jurisdiction by allowing a result which only the Crown was entitled to seek under s. 605 of the Criminal Code.

This Court has jurisdiction to hear this appeal. Section 618(2)(b) of the Code confers on an accused whose acquittal has been set aside by the Court of Appeal an automatic right of appeal to the Supreme Court. However, he cannot, under that paragraph, make in this Court any argument made in the Court of Appeal and ask for an acquittal here. In the circumstances he can only challenge the setting aside of his acquittal for murder and ask that the new trial be held on a charge of manslaughter.

Cases Cited

Rickard v. The Queen, 1970 CanLII 20 (SCC), [1970] S.C.R. 1022, applied; R. v. Wilmot, 1940 CanLII 32 (SCC), [1941] S.C.R. 53, referred to.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, ss. 603(1), 605(1)(a), (2), 613(1)(a), (2), (4) [am. 1974‑75‑76 (Can.), c. 93, s. 75], 618 [am. 1974‑75‑76 (Can.), c. 105, s. 18], 623(1).

APPEAL from a judgment of the Quebec Court of Appeal[^1], allowing appellant's appeal from a conviction for manslaughter and ordering a new trial on the original charge of second‑degree murder. Appeal allowed and new trial ordered on a charge of manslaughter.

[^1]: C.A. Que., No. 200‑10‑000162‑821, November 7, 1983.

François Fortier and Christian Bélanger, for the appellant.

René de la Sablonnière and Maurice Gabias, for the respondent.

English version of the judgment of the Court delivered by

1. Lamer J.‑‑

Facts

2. On December 23, 1979, Karine Massicotte, appellant's young daughter, was found dead in her bed. No autopsy was ordered and the death was classified as a natural one.

3. In April, 1982, a friend of Guillemette went to the police and told them that about ten months earlier Guillemette had told him in confidence that he had killed his child.

4. Officers of the Quebec Provincial Police interviewed appellant and he agreed to take a lie detector test. On being told by the police officers that he had "failed" the test, Guillemette made two statements to the police, one in writing and the other verbal, and he was, in due course, charged with second‑degree murder.

Judgments

5. At the conclusion of a trial by judge and jury, at which only the written statement was admitted in evidence, appellant was convicted of the included offence of manslaughter. He appealed this conviction. The Crown chose not to appeal the acquittal for murder.

6. On November 7, 1983, the Quebec Court of Appeal allowed the accused's appeal from this conviction on the ground that the trial judge had erred in law in his charge to the jury in mentioning the possible verdict of manslaughter based on provocation. The Court ordered a new trial, not on a charge of manslaughter, but on the initial charge of second‑degree murder. Guillemette is now appealing from this decision.

Issue

7. The principal question raised by the appeal at bar is the following: as the Crown did not appeal, did the Court of Appeal, when deciding an appeal by the accused against his conviction, err in ordering a new trial on the original charge of second‑degree murder, when the jury had returned a verdict of guilty of manslaughter?

Law

8. The accused's appeal must succeed as the Court of Appeal had no jurisdiction to order that a new trial be held on the charge of murder.

9. The provisions of the Criminal Code applicable in the case at bar are the following:

10. (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal

(a) against his conviction

605. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone,

(2) For the purposes of this section a judgment or verdict of acquittal includes an acquittal in respect of an offence specifically charged where the accused has on the trial thereof been convicted of an included or other offence.

613. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand his trial, or against a special verdict of not guilty on account of insanity, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered, or

(b) order a new trial.

(4) Where an appeal is from an acquittal the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) order a new trial, or

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law.

618. (1) A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada within twenty‑one days after the judgment appealed from is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may, for special reasons, allow.

(2) A person

(a) who is acquitted of an indictable offence other than by reason of the special verdict of not guilty on account of insanity and whose acquittal is set aside by the court of appeal,

may appeal to the Supreme Court of Canada on a question of law.

10. In the case at bar the accused was acquitted of murder and convicted of manslaughter. In the view of the Court of Appeal, the trial judge erred in directing the jury on the possibility of bringing in a verdict of manslaughter. Both the Crown and the accused agree that, in view of the facts in evidence, the judge was not entitled to direct the jury on the possibility of returning a verdict of manslaughter based on the theory of provocation. However, the accused argued that the verdict on the included offence could have been based on other grounds. The Crown, for its part, considered that only two verdicts were legally possible: those of guilty of murder or acquittal. Both parties were concerned about the effect that the trial judge's error might have had on the outcome. The accused argued that, as it could not convict him of murder, the jury would have been prepared to acquit him. The Crown, quite logically, argued the contrary, and said that the jury which could not acquit the accused in light of the evidence, would have had to bring in a verdict of murder. Both parties could have appealed, the Crown by an appeal against the acquittal for murder, the accused by an appeal against the conviction for manslaughter. Only the accused appealed. This is important. The acquittal for murder was not challenged by the Crown, and obviously not by the accused.

11. At the appeal from his conviction for manslaughter, the accused could have asked the Court of Appeal to substitute a verdict of acquittal or to order a new trial to be held on the charge of manslaughter (s. 613(2) of the Criminal Code).

12. The Crown, for its part, could have appealed this verdict under s. 605 and asked the Court to order a new trial on the initial charge of second‑degree murder (s. 613(4)(b)(i) of the Code). As s. 605(2) of the Criminal Code treats a conviction for an included offence as an acquittal for the offence initially charged, for purposes of determining whether the prosecution has a right of appeal, the right of the prosecution to ask for a new trial relates to the principal charge. It took no such action. Relying on the judgment of this Court in R. v. Wilmot, 1940 CanLII 32 (SCC), [1941] S.C.R. 53, the Crown argued that Guillemette had not been acquitted of murder. In my opinion, it is sufficient to note that that decision was prior to the addition of the aforementioned s. 605(2) to the Criminal Code.

13. In ordering a new trial on the original charge of second‑degree murder, the Court of Appeal in the same breath set aside the acquittal implicitly made by the jury on that charge. Where there has been no appeal by the Crown, to allow this result, which only the Crown was entitled to seek, constitutes an error of law.

14. The decision of this Court in Rickard v. The Queen, 1970 CanLII 20 (SCC), [1970] S.C.R. 1022, is an application of this principle. Although that judgment was rendered in connection with a summary conviction, the fundamental principles on which it was based apply equally to indictable offences.

15. Rickard, who was charged with criminal negligence in the operation of a motor vehicle, was convicted following a trial by a summary convictions court of the lesser and included offence of dangerous driving. Following a trial de novo held pursuant to s. 720 of the Code (now s. 748) at the request of the accused, he was convicted of criminal negligence. Rickard appealed from this conviction on the ground that the judge at the trial de novo had jurisdiction limited to hearing the appeal regarding the offence for which the appellant was previously convicted. Speaking for a majority of this Court, Ritchie J. approved the argument at p. 1028:

It has been held more than once in this Court, (Dennis v. The Queen, 1958 CanLII 25 (SCC), [1958] S.C.R. 473 at 482; The Queen v. Dennis, 1960 CanLII 34 (SCC), [1960] S.C.R. 286 at 289), that the existence of a valid Notice of Appeal filed and served in accordance with s. 722 is a condition precedent to the exercise of the jurisdiction vested in the Court of Appeal under s. 727(1) and it follows, in my opinion, that a County Court Judge acting under the latter section is only authorized and required "to hear and determine the appeal by holding a trial de novo" in respect of the issues raised in a Notice of Appeal which has been so filed and served. In the present case the learned County Court Judge purported to register a conviction against the appellant under s. 221(1) in the absence of any appeal whatever from the Magistrate's finding that the evidence did not prove that offence. I do not find it necessary to decide whether an appeal in fact lies by the informant or the Attorney General from such a finding because I take the view that the controlling factor in this case is that no such appeal was taken.

In my opinion, the only issue which the County Court Judge was authorized and required to hear and determine on the holding of a trial de novo in the present case was the issue of the guilt or innocence of the accused on the charge of which he was convicted and from which he had appealed.

(Emphasis added.)

16. At page 1029, Ritchie J. dismissed as follows the argument made by the Crown that s. 727(1), as it read at the time, required the holding of a new trial on the initial information:

... in my view any construction of s. 727(1) which would result in a retrial of the charge alleged in the original information when that charge has been dismissed by the Magistrate and there is no appeal from his dismissal, would be inconsistent with the appeal provisions of Part XXIV.

17. In the case at bar, therefore, as there was no appeal by the Crown, the Court of Appeal of Quebec erred in ordering a new trial on the initial charge of murder.

18. The Crown challenged the jurisdiction of this Court to hear this appeal. Appellant came to this Court by leave granted pursuant to s. 618(1)(b) of the Code, which states that a person whose conviction at first instance is affirmed by the Court of Appeal may apply for leave to appeal to this Court. The Crown argued, correctly in my view, that the accused's conviction for manslaughter was not affirmed by the Court of Appeal, since the latter ordered a new trial.

19. I am nevertheless of the opinion that the accused did have an appeal as of right to this Court under s. 618(2)(a) of the Code, which confers on anyone whose acquittal at first instance has been set aside by the Court of Appeal an automatic right of appeal to the Supreme Court. Accordingly, the setting aside by the Court of Appeal of Guillemette's acquittal on the charge of murder enabled him to appeal to this Court for a restoration of his acquittal for murder and an order that the new trial be held on a charge of manslaughter rather than murder. Under s. 618(2)(a), can appellant also make, in this Court, any other argument made in the Court of Appeal and ask for an acquittal here?

20. In this regard, appellant alleged that the Court of Appeal should have reversed the decision by the trial judge to admit in evidence the written statement made by the accused, in view of the circumstances in which it was made. The accused maintained that the residual evidence is too weak to support a guilty verdict (s. 613(1)(a)(i) of the Code).

21. The accused cannot challenge the verdict of manslaughter in this Court. The Court of Appeal did not affirm the conviction and, were it not for the error by the Court of Appeal in setting aside his acquittal for murder by ordering a new trial on that charge, the accused would not have been able to appeal to this Court under s. 618. On an appeal as of right under s. 618(2)(a) of the Code, the accused can only challenge the setting aside of his acquittal for murder and ask that the new trial be held on a charge of manslaughter. This Court therefore cannot rule on the other arguments put forward by the accused in support of an acquittal.

22. I think it advisable to add a further clarification of the limits imposed on this Court by the nature of the appeal at bar.

23. Though it made no appeal to the Court of Appeal, the Crown could have appealed in this Court, against the order for a new trial made by the Quebec Court of Appeal. The Crown could then have asked this Court to set aside the order and restore the conviction for manslaughter. However, again it chose not to appeal, this time, before this Court. In addition to the limitations imposed on us by the nature of the accused's appeal, the jurisdiction of this Court is also limited by the Crown's decision not to appeal to the Court of Appeal against the acquittal for murder by the jury, and further by its decision not to appeal against the order for a new trial made by the Court of Appeal.

24. Section 623(1) of the Code provides:

25. (1) The Supreme Court of Canada may, on an appeal under this Part, make any order that the court of appeal might have made and may make any rule or order that is necessary to give effect to its judgment.

26. Where there is no appeal by the Crown asking us to do so, this Court cannot, in place of the Court of Appeal, make the order which we might feel it should have made, assuming that was our conclusion, namely dismissing the appeal and substituting a conviction for manslaughter.

27. For all these reasons it follows, in my view, that the only question we may consider is whether the new trial ordered by the Court of Appeal should be on a charge of murder or of manslaughter.

28. For the reasons already given, I consider that the new trial should be on a charge of manslaughter.

29. I would therefore allow this appeal and order that the new trial be held on the charge of manslaughter.

Appeal allowed and new trial ordered.

Solicitors for the appellant: François Fortier and Paul Miquelon, Québec.

Solicitors for the respondent: René de la Sablonnière, Québec; Maurice Gabias, Trois‑Rivières.