R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 SCR 168

R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 SCR 168

Tomas Yebes Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. yebes

File No.: 19236.

1986: December 16; 1987: September 17.

Present: Dickson C.J. and Estey, McIntyre, Chouinard*, Lamer, Wilson and Le Dain JJ.

*Chouinard J. took no part in the judgment.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Appeal ‑‑ Unreasonable verdict ‑‑ Test ‑‑ Accused convicted of murder on circumstantial evidence ‑‑ Interpretation and application of s. 613(1)(a)(i) of the Criminal Code.

Criminal law ‑‑ Evidence ‑‑ Sufficiency ‑‑ Charge of murder ‑‑ Evidence of motive and opportunity ‑‑ Whether accused had exclusive opportunity to commit crime.

Criminal law ‑‑ Calling of witnesses ‑‑ Murder conviction ‑‑ Whether Crown failed to call a material witness.

Criminal law ‑‑ Appeals to the Supreme Court of Canada ‑‑ Jurisdiction ‑‑ Questions of law ‑‑ Accused's appeal based on s. 613(1)(a)(i) of the Criminal Code dismissed by Court of Appeal ‑‑ Whether s. 613(1)(a)(i) raises a question of law which can be reviewed by the Supreme Court under s. 618 of the Criminal Code.

Appellant was charged with first degree murder for the death of his two adopted sons. As a consequence of his wife's difficulties in adapting to the two boys' presence in the family, appellant had agreed to leave the family home with them. Throughout the separation, the entire family continued to meet but little progress towards reunification was made. His wife still felt that she could not manage with the boys in the family. According to appellant's testimony, one night, after a family supper, he told his wife that he could no longer support two houses and that they had to come back together. She became upset but finally gave him the impression that she accepted. The wife and two daughters left around 8:00 p.m. At that time, the two boys were already in bed. Appellant went to bed upstairs sometime after 10:00 p.m. and was later awakened by the smell of smoke. He went downstairs and found the two boys lying dead on a burning mattress. A police officer arrived shortly after appellant's call at 1:00 a.m. and found the front door unlocked ‑‑ a fact presumably known by the appellant since he made no attempt to open the door to the officer.

At trial, a fire expert testified that the fire had been deliberately set and a pathologist gave evidence that the two boys were dead before the fire began but he was unable to determine the precise cause of the death. He estimated the time of death between 10:00 p.m. and 12:30 a.m. Appellant gave evidence on his own behalf and adduced character evidence to the effect that he was a kind and affectionate father who appeared to be genuinely interested in the welfare of the two boys. Appellant's wife did not testify.

Convicted of second degree murder, appellant appealed to the Court of Appeal pursuant to s. 613(1)(a)(i) of the Criminal Code. This section enables a court of appeal to allow an appeal from conviction "where it is of the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence". A majority of that Court dismissed the appeal. The present appeal is to determine (1) whether the Court of Appeal failed to apply the correct test for s. 613(1)(a)(i) of the Code where, as here, the evidence against the appellant is entirely circumstantial; and (2) whether the Court erred in failing to consider the absence of a material witness ‑‑ appellant's wife ‑‑ in determining whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

Held: The appeal should be dismissed.

Under s. 613(1)(a)(i) of the Code, a court of appeal is required to decide whether the verdict of the jury was unreasonable. While this involves a reconsideration of the facts, it also requires the court to resolve a question of law by giving legal content to the concept of "unreasonable". The application of the proviso thus always involves a question of law and it is reviewable in this Court on appeal under s. 618 of the Criminal Code.

The function of a court of appeal, under s. 613(1)(a)(i) of the Code, goes beyond merely finding that there is evidence to support a conviction. The court must determine on the whole of the evidence "whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered". While the court of appeal must not merely substitute its view for that of the jury, in order to apply the test the court must re‑examine and to some extent reweigh and consider the effect of the evidence. This process is the same whether the case is based on circumstantial or direct evidence. In the Court of Appeal, the majority found that there was sufficient evidence to justify the verdict and rejected all rational inferences offering an alternative to the conclusion of guilt. It is therefore clear that the law was correctly understood and applied.

This Court, in considering an appeal where the sole issue raised is the application of s. 613(1)(a)(i), must put itself in the place of the Court of Appeal and, pursuant to the powers given in s. 623(1) of the Code, consider the matter anew and, if error be found, make such order as the Court of Appeal should have made. Where it is shown that a crime has been committed and the incriminating evidence against the accused is primarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused had exclusive opportunity. In a case where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice. In the present case, a review of the evidence indicated that there was evidence upon which a properly charged jury could reasonably have reached the conclusion that appellant had a motive to kill the boys and that he had exclusive opportunity to do so. There was no evidence of the presence of any other persons, save the two boys, in the house that evening.

Finally, appellant's contention that the Crown failed to call a witness, his wife, essential to the unfolding of the narrative must fail. While the Crown may not be required to call a given witness, the Crown's failure to call a witness may leave a gap in its case which will leave the Crown's burden of proof undischarged and entitle the accused to an acquittal. In this case, however, the assumption that appellant's wife had something to say to complete the narrative rests on nothing more than speculation as there was no evidence that she was present or possessed any knowledge of what occurred.

Cases Cited

Applied: Corbett v. The Queen, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275; Mahoney v. The Queen, 1982 CanLII 21 (SCC), [1982] 1 S.C.R. 834; referred to: Lemay v. The King, 1951 CanLII 27 (SCC), [1952] 1 S.C.R. 232; R. v. Ferianz (1962), 1962 CanLII 884 (ON CA), 37 C.R. 37; R. v. MacFarlane (1981), 1981 CanLII 3324 (ON CA), 61 C.C.C. (2d) 458; R. v. Monteleone (1982), 1982 CanLII 2162 (ON CA), 67 C.C.C. (2d) 489; R. v. Stevens (1984), 1984 CanLII 3481 (ON CA), 11 C.C.C. (3d) 518; Imrich v. The Queen, 1977 CanLII 27 (SCC), [1978] 1 S.C.R. 622.

Statutes and Regulations Cited

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

APPEAL from a judgment of the British Columbia Court of Appeal rendered February 5, 1985, dismissing the accused's appeal from his conviction on a charge of second degree murder. Appeal dismissed.

Thomas R. Braidwood, Q.C., for the appellant.

John E. Hall, Q.C., for the respondent.

The judgment of the Court was delivered by

1McIntyre J. ‑‑ The appellant was found guilty before a judge and jury of murdering his two adopted children. He appeals to this Court on the ground that the verdict should be set aside, pursuant to s. 613(l)(a)(i) of the Criminal Code which enables a court of appeal to allow an appeal against a conviction "where it is of the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence". The issue before this Court, then, is the proper interpretation and application of s. 613(1)(a)(i) of the Code.

2The appellant, Tomas Yebes, a hairdresser, and his wife, Elvira, lived in the municipality of Surrey, near Vancouver, with their two daughters, one born in 1971 and the other in 1973. For some time, Mr. and Mrs. Yebes had been concerned with the plight of young children in the poorer countries of the world, and in 1977 they began lengthy procedures aimed at the adoption of two Chilean children. In 1979, two boys were brought to Canada to reside with the Yebes family with a view to formal adoption. One boy, named Gabriel, was born in September 1974, and the other, Yerko (Tommy), in September 1975. The boys, it appears, did not fit as readily into their new home as had been hoped. Mrs. Yebes complained of difficulties with the boys because they would not accept and comply with the rules she had established for the family. Mr. Yebes thought that his wife was too strict in her management of the boys. These differences led to increasing domestic conflict and, in July 1981, both Mr. and Mrs. Yebes sought the assistance of a psychiatrist. Professional assistance did not, however, resolve their problems. In September of 1981, at about the time the boys were formally adopted, Mrs. Yebes had reached the stage where she could no longer tolerate the boys in her home and the couple agreed to separate for a period of three to six months. Mrs. Yebes remained in the family home with the two daughters, and Mr. Yebes moved with the two boys to a rented town house in a housing development a short distance from the family home. Mr. Yebes assumed responsibility for the maintenance of the boys and for paying the rent on the town house, the mortgage on the family home, and the utility bills. In addition, he saw to the care of the boys, preparing their meals, insuring they attended school, and arranging for day care when he was busy at work. Mrs. Yebes drew upon her savings to maintain herself and the two girls.

3Throughout the separation the entire family continued to meet. There were family dinners and visits, but there was little progress toward a complete reunion and both Mr. and Mrs. Yebes were worried and concerned about the situation. It seems that they both wanted to end the separation but Mrs. Yebes was apprehensive about the boys. She did not feel that she could manage with them in the family and expressed the wish that they be readopted. On January 28, 1982, Mr. Yebes made inquiries regarding readoption and upon learning that there would be delays and difficulties, asked a family support worker to give him a letter saying that the boys could not be readopted. This, he explained, might persuade Mrs. Yebes to accept the boys and allow the family to be reunited. The period of separation was approaching six months and Mr. Yebes admitted that he had to move back soon with his wife because the lease on his town house was going to expire at the end of February.

4This was the state of affairs on February 23, 1982. According to the evidence, Mr. Yebes and his wife had planned a supper for the whole family at the town house that night. Mr. Yebes picked the boys up at the day care centre at about 6:00 p.m. and took them home to the town house. Mrs. Yebes and the two girls arrived at about 6:10 p.m. The family had supper at about 6:30 p.m. and then Yebes and his wife went to the bedroom and talked for half an hour about the domestic situation they were facing. Yebes described the conversation with his wife in his testimony at trial in these words:

I told my wife that we have to come back together. The reason for it was that I told her that financially we cannot stay separate. I could not support two households for much longer. I told her that there is no way. We had to come together, and she started to cry, and she got mad, upset, but she calmed down and she did give me the impression that she accepted what I told her. Thereafter we came down.

5Mrs. Yebes left the town house between 8:00 and 8:05 p.m. to attend a single parents' meeting somewhere in Surrey. She took the two girls with her and there is no evidence whatever of her presence in the town house after her departure until she returned at Yebes' request after the police had arrived and the bodies of the two boys had been discovered.

6According to Yebes' evidence, the boys were already in bed when his wife and two daughters left the town house at about 8:00 p.m. Tommy, the younger, was sleeping in the upstairs bedroom which adjoined Yebes' bedroom and Gabriel was sleeping downstairs on a mattress in a small utility room. The boys had formerly slept in bunk beds in the upstairs bedroom but, according to Yebes, he found it necessary to separate them because they kept each other awake when together. Yebes said that he went to bed at about 10:00 p.m. in the main upstairs bedroom. He put on a stereo headset with a long lead running downstairs to the stereo set, so he could listen to music while in bed. He went downstairs at about 10:45 p.m. to change the tape. He returned and after awhile fell asleep, only to be later awakened by a noise. Thinking it was one of the boys going to the bathroom or one of the neighbours in an adjoining apartment, he went back to sleep. Aroused a second time by the smell of smoke, he went downstairs to see if it was caused by his pipe and found the room full of smoke. He went to the utility room where the boy, Gabriel, was sleeping, and was able to push open the door. Inside, he saw the two boys lying on a burning mattress. They were covered and it appeared as if they had made no move to escape. He tried to pull one of the boys out but upon reaching the living‑room he noticed that the boy's body was stiff and lifeless. He then called the police.

7The police call was received by Sergeant Shaw, of the R.C.M.P., at 1:00 a.m. on February 24. He arrived at the town house within minutes of the call. When Shaw arrived, Yebes was at a window on the second level of the building shouting, "In here, in here". The police officer entered by the front door which he found to be closed but unlocked, a fact presumably known to Yebes, since he made no attempt to open the door for the officer. The police officer immediately proceeded up a flight of steps to the second level and into the living‑room which was filled with smoke. He at once saw one of the boys outside the door of the utility room. The boy was obviously dead. He looked into the utility room and saw the second boy, also dead, face down on the mattress. The mattress was still on fire with a noticeable flame. While the officer was making these observations, Yebes was on the telephone speaking to his wife. Shaw heard him say to her, "They're dead, they're dead".

8Another police officer, Constable Harrington, arrived, followed by firemen who extinguished the fire in the mattress. Harrington observed that Mr. Yebes was confused and detached. Mrs. Yebes arrived and spoke to Mr. Yebes for about ten minutes. Following this conversation, Mr. Yebes was escorted by Harrington to a police car in order to make a statement. After making the statement, Yebes indicated that his hands and feet had been burned in the attempt to rescue the boys, and Harrington took him to a hospital for treatment.

9In the further course of the investigation, the police found a dry bloodstain permeating the bedclothes on the upstairs bed where Tommy slept. Later, tests revealed that the blood was consistent with Tommy's blood type. They also found a damp stain in the bed. Sergeant Shaw thought it was urine, but this was never confirmed because the police laboratory was not equipped to test for urine. A butane lighter was found downstairs in the utility room. The lighter was open in a position which allowed the butane gas to escape. The lighter sparked when first tested, but it did not produce a flame. It was then filled with butane from a container on the mantelpiece and tested again. It ignited immediately producing a six‑inch flame. When the lighter was shown to Mr. Yebes he acknowledged that it was his, but stated that "it did not work for [a] long time". At trial he explained that he had said this because the lighter leaked butane gas and normally became empty half an hour after filling.

10At trial, a fire expert, Mr. Hardman, was called to give evidence on the cause of fire. He concluded that the fire had been deliberately set. He testified that the burn pattern on the mattress indicated that fire had not started at a single location and spread. Rather, it had started at three separate locations. The burn pattern revealed further that the fire had been started using a flammable liquid accelerant, such as gasoline, paint thinner or alcohol, although no container was found in or about the premises. Mr. Hardman was satisfied that the fire could not have been caused by the butane lighter alone. He also concluded that there was no evidence that the fire had been an explosive or flash fire.

11Further expert evidence clearly proved that the two boys were dead before the fire began. Fire tests were conducted in the utility room by burning a mattress under controlled conditions. These tests indicated that the fire of February 23 would have produced large quantities of carbon monoxide, hydrogen cyanide and soot within a few minutes of starting. A toxicologist examined samples of blood taken from the boys and found only minute traces, not exceeding normally expected levels, of carbon monoxide in the hemoglobin and no traces of hydrogen cyanide. He also tested the blood for a wide range of poisons and drugs and found none. An autopsy was performed on the two boys on February 24, 1982. The pathologist, Doctor Cave, examined the mouths, throats and lungs of the children and found no evidence of carbon particles or staining. He also found no evidence of searing or singeing of the bodies consistent with death caused by a flash fire. Based on his findings and the findings of the toxicologist, Doctor Cave concluded that the boys must have been dead before the fire started. Although Doctor Cave could rule out fire as the cause of death, he could not determine the exact cause of death because of the condition of the bodies. There was no evidence to suggest that the boys had died of natural causes and the circumstances alone seemed to rule out this possibility. However, Doctor Cave was able to state that the condition of the bodies was consistent with death by asphyxiation. Doctor Cave made an attempt to estimate the time of death by an examination of the stomach contents. He said that this was an imprecise method of determining the time of death but, based on his findings, he considered it unlikely that the boys were alive four to six hours after their last meal. The evidence established that their last meal had been eaten at about 6:30 p.m., which puts the time of death at not later than 12:30 a.m. and possibly before 10:30 p.m.

12When the police learned that the boys had not died in the fire they immediately interviewed both Mr. and Mrs. Yebes. Mr. Yebes was distraught at the outset of the interview and became more upset as he described the discovery of the bodies. When the police officer, Sergeant Tilley, told him that the evidence indicated that the boys had not died as a result of the fire, Mr. Yebes completely broke down.

13Evidence was also led at trial of an event which occurred on February 7, 1982, approximately two weeks before the death of the boys. Mr. Yebes called the police that night and complained of a fire in the boys' bedroom which adjoined his own room. When a police officer arrived he found a candle on a plate in the bedroom and evidence that a fire had occurred. The boys explained that the fire had been caused by a "monster" who had been in the room. The officer examined the premises and found no evidence of entry through the doors or windows. He also examined the outside fence which could have been used by an intruder to gain access to the bedroom window, but the new frost on the fence had not been disturbed. He concluded that the boys had been playing with fire and had told the tale of the monster to avoid reprimand.

14There is one further piece of evidence which should be noted. At trial, Mr. Yebes was asked whether or not he had locked his front door on the evening the boys died. Mr. Yebes replied that, while he could not specifically recall locking the door that night, he locked the door every night and therefore believed that he would have locked it that night as well. He was then asked whether he had unlocked the door at any time that night and he answered that he had not. From this evidence, one would have expected the door to be locked when Sergeant Shaw first arrived that night and, more importantly, one would have expected Yebes to believe the door was locked. And yet, when Shaw arrived the door was unlocked and Yebes appeared to know the door was unlocked since he made no move to go downstairs to let the officer inside. Instead, from the second floor he simply shouted to the officer, "In here, in here".

15Yebes was charged with two counts of first degree murder arising out of the death of the two boys. He was convicted of second degree murder on each count before Wallace J. and a jury. He gave evidence on his own behalf and adduced character evidence to the effect that he was a kind and affectionate father who appeared to be genuinely interested in the welfare of the two boys. The evidence also disclosed the efforts made by Yebes and his wife to adopt and care for the boys. Mrs. Yebes did not give evidence at the trial.

16An appeal to the Court of Appeal of British Columbia (Craig, Macdonald and Hutcheon JJ.A.) was dismissed with Hutcheon J.A. dissenting. The sole ground of appeal in the Court of Appeal was that the verdict should be set aside on the ground that it was unreasonable or that it could not be supported on the evidence, pursuant to s. 613(1)(a)(i) of the Criminal Code. Craig J.A. followed Corbett v. The Queen, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, and stated that the test under s. 613(1)(a)(i) is "whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered". He found that the verdict was reasonable, stating:

Although I think that the jury could reasonably conclude that Yebes did have a motive for unlawfully causing the death of the two boys in this case, I think, also, that the jury could reasonably conclude that regardless of motive Yebes had exclusive opportunity to commit the crime. Motive is immaterial if the opportunity to commit the crime is shown to have been exclusive: Imrich v. The Queen (1977) 1977 CanLII 27 (SCC), 75 D.L.R. (3d) 243.

He further rejected the submission of counsel for the appellant that the Crown could not rely on the proposition of exclusive opportunity because it had failed to call Mrs. Yebes. Following Lemay v. The King, 1951 CanLII 27 (SCC), [1952] 1 S.C.R. 232, he stated:

. . . counsel acting for the prosecution has a complete discretion as to what witnesses he will call and that a court will not interfere with the exercise of this discretion ". . . unless perhaps it could be shown that the prosecutor had been influenced by some oblique motive" (Kerwin, J. at p. 240), or ". . . so long as he exercises it fairly . . . ." (Davey, J.A. in R. v. Haase (1965) 1964 CanLII 662 (BC CA), 45 C.R. 113 at 119). Defence counsel did not at trial, or on appeal, suggest that in not calling Mrs. Yebes as a witness Crown counsel ". . . influenced by some oblique motive . . ." had exercised his discretion unfairly.

17Macdonald J.A. agreed that Corbett, supra, was the governing decision in the case although he expressed concern about the apparent discrepancies in the statements of the test for s. 613(1)(a)(i) found in Pigeon J.'s judgment. He stated that:

As to this appeal, I agree with Mr. Justice Craig that 12 reasonable jurors, acting judicially, could have found the appellant guilty of murder of the boys. I would only add this with respect to the element of opportunity. The following statement from the respondent's factum, with the additional words of mine which are underlined, is valid:

"The reality of the situation here was that only the accused was present in this self‑contained suite with the two children. There can be no realism to any suggestion that an individual could break into or enter the house, accomplish the death of the children, place them on a mattress and set the fire. There is no suggestion in the evidence that any such event or events occurred nor indeed could they occur without the accused being aware of the commotion such actions would cause."

18Hutcheon J.A., in dissent, also saw Corbett as the governing decision but, like Macdonald J.A., found Pigeon J.'s statement of the law to be somewhat unclear. In Corbett, Pigeon J. stated, at p. 279, that the test under s. 613(1)(a)(i) of the Criminal Code is whether "the verdict is such that no twelve reasonable men could possibly have reached it acting judicially". Later, at p. 282, he stated that the test is "whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered". Hutcheon J.A. thought that the word "possibly" in the first formulation was inappropriate and he adopted Pigeon J.'s second formulation as a more faithful rendition of the law. Applying this test, he concluded that the jury's verdict was unreasonable. He was of the view that evidence of motive was insignificant and that there was insufficient evidence to justify a finding of exclusive opportunity on the part of Yebes. In conclusion, he stated that "the cumulative effect of the facts on which motive and opportunity are based does not support" the proposition that Yebes' guilt was the only rational inference to be drawn from the evidence.

19In this Court, the appellant raised three grounds of appeal but they may be conveniently expressed in two propositions. First, the Court of Appeal failed to apply the correct test for s. 613(1)(a)(i) of the Code where, as here, the evidence against the appellant is entirely circumstantial. Secondly, the Court erred in failing to consider the absence of a material witness (Mrs. Yebes) in determining whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. No attack was made against the trial judge's charge to the jury.

20As a general proposition, the verdict at trial will stand where there is evidence before the jury going in proof of all elements of the offence and where the trial judge has properly charged the jury on all matters of law which arise in the case and has made such references to the evidence as may be necessary to facilitate the application of the law to the facts. However, s. 613(1)(a)(i) of the Criminal Code provides an additional basis for the challenging of the verdict at trial. A court of appeal may allow an appeal against a conviction where it is of the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence. It may be thought that this subsection does not in a strict sense raise a question of law which would give a right to appeal to this Court under s. 618(1)(a) of the Code. Indeed, the respondent Crown asserted in its factum that there was no point of law dividing the minority and the majority of the Court of Appeal in this case. This argument was not, however, strongly pressed on the hearing of the appeal and, in my view, cannot be sustained. It is frequently difficult to draw a clear line between a question of law and a question of fact. While the law can be stated in isolation from the facts, abstract statements of law unconnected to facts are vague and elusive. Even when two judges state the law in precisely the same terms each may actually differ in his understanding of the law and the requirements for its application. Therefore, whether or not an appeal raises a question of law can only be determined after an examination of both the statements of law and the application of the law to the facts in the courts below. Under s. 613(1)(a)(i) of the Code, a court of appeal is required to decide whether the verdict of the jury was unreasonable. While this involves a reconsideration of the facts, it also requires the court to resolve a question of law by giving legal content to the concept of "unreasonable". This same point was made recently by this court in Mahoney v. The Queen, 1982 CanLII 21 (SCC), [1982] 1 S.C.R. 834, where the Court was called upon to determine whether a question of law is raised by the proviso in s. 613(1)(b)(iii) which allows the Court to dismiss an appeal notwithstanding an error of law at trial, provided that "no substantial wrong or miscarriage of justice has occurred". Speaking for Laskin C.J., Ritchie and Estey JJ., and myself, I stated, at pp. 852‑53, that:

The authorities which have been referred to make it clear, in my view, that this Court has long considered that the application of the proviso involves a question of law and it has entertained appeals where error in its application has been alleged. It has been shown that the proviso may be applied only following a legal determination that errors have been made at trial, but that "no substantial wrong or miscarriage of justice has occurred", and then only according to a strict legal test. The determination of what will constitute a substantial wrong or miscarriage of justice must involve the construction of those words in the context in which they are used in the Statute, and such statutory construction has long been considered a matter of law. The Court's decision involves an analysis of the rights accorded by law to an accused and the measurement of the impact of the errors which were made at trial. Once an appellant establishes in the Court of Appeal that errors of law were made at his trial he becomes entitled to have his appeal allowed and a new trial or an acquittal, depending on the circumstances, unless the proviso is applied to annul those rights. The Court of Appeal must consider the errors against the background of the whole trial. While a reconsideration of the evidence is involved, clearly the inquiry goes far beyond the determination of matters of fact. The Court of Appeal must give substance to the concept of "miscarriage of justice" and this involves a legal determination. For all the above reasons, I am of the opinion that the application of the proviso must always involve a question of law and it is reviewable in this Court on appeal under s. 618 of the Criminal Code. [Emphasis added.]

Lamer J., speaking for Dickson J. (as he then was) and himself, stated, at pp. 857‑58, that:

In my view, this Court has through judicial pronouncements defined the application of s. 613(1)(b)(iii) into a question of law. Indeed, the section suggests, when considered alone, that the decision by the Court of Appeal is one of mixed fact and law. But this Court has required as a prerequisite to the courts of appeal applying the proviso of s. 613(1)(b)(iii) that they first make a finding that no jury properly charged could reasonably acquit. (Reference to, amongst others, Spence J. in Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739.) Such a finding is, in my opinion, no less a decision on a question of law than that made by a trial judge before directing a verdict of acquittal when he comes to the conclusion that "in view of the dubious nature of the evidence" no jury could reasonably convict. (R. v. Comba, 1938 CanLII 7 (SCC), [1938] S.C.R. 396.)

While the reasons of the majority in Mahoney were based on s. 613(1)(b)(iii), I believe that they are equally applicable to s. 613(1)(a)(i) and, therefore, following those reasons I am of the view that s. 613(1)(a)(i) raises a question of law which can be reviewed by this Court under s. 618 of the Criminal Code.

21The leading case upon the question of the applicability of s. 613(1)(a)(i) of the Criminal Code is Corbett v. The Queen, supra. In that case, Corbett was convicted of murder. The key witness was the wife of the deceased. She had been wounded by the murderer immediately after the shooting of her husband, but three days after the shooting was able to identify Corbett as the killer. There were, however, some discrepancies between her statement of the facts and the evidence of other witnesses. The case was appealed to the British Columbia Court of Appeal on the ground that the discrepancies in the evidence made the verdict "unreasonable" for the purposes of s. 613(1)(a)(i). The appeal was dismissed with a dissent concerning the application of s. 613(1)(a)(i) of the Code. In this Court, Pigeon J., speaking for the majority (Abbott, Martland, Judson, Pigeon and Dickson JJ.) (Spence and Laskin JJ. dissenting) said that the dissent in the Court of Appeal was not a dissent upon a question of law but solely as to the application of law. This raised the same question to which I have already adverted. Responding to a submission by the appellant that the majority of the Court of Appeal, in their approach to s. 613(1)(a)(i), erred in merely considering whether there was any evidence rather than reaching their own conclusion on the weight of the evidence, he said, at pp. 278‑79:

Of course, if the judges of the majority had held that their function was only to decide whether there was evidence, this would be reversible error. The Code expressly provides that the appeal may be allowed, not only when the verdict cannot be supported by the evidence but also when it is unreasonable. In other words, the Court of Appeal must satisfy itself not only that there was evidence requiring the case to be submitted to the jury, but also that the weight of such evidence is not so weak that a verdict of guilty is unreasonable. This cannot be taken to mean that the Court of Appeal is to substitute its opinion for that of the jury. The word of the enactment is "unreasonable", not "unjustified". The jurors are the triers of the facts and their finding is not to be set aside because the judges in appeal do not think they would have made the same finding if sitting as jurors. This is only to be done if they come to the conclusion that the verdict is such that no twelve reasonable men could possibly have reached it acting judicially. [Emphasis added.]

Later, at p. 280, he said:

In my view, there is nothing from which it might be deduced that the learned judge only considered whether there was evidence. If there had been no evidence, it would have been the duty of the trial judge to withhold the case from the jury. This is not what was considered. The point dealt with assumed that the case was properly before the jury. It was asked in effect whether they could reasonably answer "Guilty" and, in my opinion, that was the proper test before the Court of Appeal.

And in reaching his conclusion, he said, at p. 282:

I do not read the above as meaning that the duty of the Court of Appeal is to reach its opinion on the basis of what its members think they would have decided if sitting as the jury so that, if they are not convinced that they would have rendered the same verdict, they are to find it unreasonable. If that is what the learned judge meant, then I must disagree with him because that is not the proper test. As previously noted, the question is whether the verdict is unreasonable, not whether it is unjustified. The function of the court is not to substitute itself for the jury, but to decide whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered. [Emphasis added.]

22These passages, especially those portions underlined, have led to some uncertainty regarding the standard of review to be employed under s. 613 of the Criminal Code. As I have indicated above, the judges of the Court of Appeal were troubled by the apparent inconsistencies in these passages and attempted to resolve them. Hutcheon J.A., in dissent, concluded that the word "possibly", used in the first passage, was inappropriate and that the last of the quoted passages stated the law more faithfully. Macdonald J.A., on the other hand, after citing the first of the passages quoted above, said with a hint of resignation:

So that is the definitive statement of the requirement of the subparagraph. I think that as a judge of this Court I should simply endeavour to apply it, leaving elaboration to the Supreme Court.

23I hasten to elaborate. I am in agreement with Hutcheon J.A. that the word "possibly" in this context is inappropriate. In my view, to adopt literally the proposition that the appellate court could only consider whether the impugned verdict could possibly have been reached would render review on appeal under the subsection almost impossible. "Reasonably could have reached" must be the test, and from a reading of the whole of Pigeon J.'s judgment I am of the view that it was what was intended. The concept of reasonableness is clearly expressed in the section which speaks of an unreasonable verdict. Therefore, curial review is invited whenever a jury goes beyond a reasonable standard. In my view, then, Corbett is the governing case and the test is "whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered".

24The appellant, while not quarrelling with the authority of the Corbett case, argues that it was misapplied here in a case depending entirely on circumstantial evidence. He argues that before a jury may convict on purely circumstantial evidence, it must be satisfied beyond a reasonable doubt that the circumstances proved in the evidence are such as to be inconsistent with any other rational conclusion than that the accused is the guilty person. The test is sometimes stated in a somewhat different form, but to the same effect: the circumstances must be consistent with guilt and inconsistent with innocence. The appellant submits that the majority of the Court of Appeal erred in failing to apply this test.

25In my view, the majority of the Court of Appeal did not fail to apply the correct principles relating to the treatment of circumstantial evidence. The function of the Court of Appeal, under s. 613(1)(a)(i) of the Criminal Code, goes beyond merely finding that there is evidence to support a conviction. The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re‑examine and to some extent reweigh and consider the effect of the evidence. This process will be the same whether the case is based on circumstantial or direct evidence. In the Court of Appeal, the majority clearly found that there was sufficient evidence to justify the verdict and both Macdonald and Craig JJ.A. rejected all rational inferences offering an alternative to the conclusion of guilt. It is therefore clear that the law was correctly understood and applied.

26This Court, in considering an appeal where the sole issue raised is the application of s. 613(1)(a)(i) of the Code, must put itself in the place of the Court of Appeal and, pursuant to the powers given in s. 623(1) of the Code, consider the matter anew, and if error be found make such order as the Court of Appeal should have made. In pursuit of that objective, I can say that there was evidence before the jury from which it could reasonably find that the two boys were dead before the fire in the mattress was set and that they did not die from natural causes. There was evidence upon which the jury could reasonably find that the fire in the mattress was not accidental but was set by a human hand with the aid of a liquid accelerant. There was evidence upon which they could reasonably find that the appellant Yebes had a motive for killing the boys and that he had an opportunity to do so. If there were no further evidence upon which to support the Crown's case there could be no doubt that the appellant would be entitled to an acquittal, for evidence of motive alone would not be sufficient to base a conviction and coupling opportunity with motive in the absence of other evidence would not advance the case unless there were evidence of exclusive opportunity. This point was made by McLennan J.A. in R. v. Ferianz (1962), 1962 CanLII 884 (ON CA), 37 C.R. 37 (Ont. C.A.) The two accused in the case were joint owners of a building and it was clearly established that a fire in the building had been deliberately set. The only evidence against the accused was evidence of motive and opportunity. McLennan J.A., speaking for the Court (Porter C.J.O., Kelly and McLennan JJ.A.) said, at p. 39:

The only evidence against the accused on the first count of conspiracy to commit arson was motive and opportunity. The motive suggested was to obtain the insurance money and the opportunity suggested was that either or both accused would have returned to Kingsville from Windsor and set the fire or hired someone else to do it. There was no evidence that they did so and there was no evidence of any connection between either accused and any person unknown who might have started the fire. At least one other person had a motive at least equally as strong as the accused.

Although motive may be an important element along with other probative and significant facts in establishing guilt, motive by itself and standing alone amounts to nothing or next to nothing in the way of proof that the accused committed the crime charged in Count 1: Best on Evidence, 12th ed. 3845.

Evidence of opportunity, unless it is exclusive opportunity, is on a somewhat similar footing as evidence of motive. Mere opportunity is not accepted as corroboration where corroboration is required or desirable: Burbury v. Jackson, [1917] 1 K.B. 16, 25 Cox C.C. 555 at 558; Forsythe v. The King, 1943 CanLII 62 (SCC), [1943] S.C.R. 98, 79 C.C.C. 129, [1943] 2 D.L.R. 737, 5 Abr. Con. (2nd) 361. The accused or someone hired by either of them were not the only persons who had the opportunity. Logically anyone who could have been in the building about midnight had opportunity.

In our opinion even considering the cumulative effect of opportunity and such motive as there was in this case it is not sufficient to warrant a conviction on the count charging conspiracy to commit arson.

A more recent statement of the same principle is found in R. v. MacFarlane (1981), 1981 CanLII 3324 (ON CA), 61 C.C.C. (2d) 458 (Ont. C.A.) where Martin J.A., speaking for the Court (Martin, Weatherston and Morden JJ.A.) said, at p. 460:

Since there were no other circumstances connecting the appellant with the setting of the fire, it was incumbent upon the Crown to establish that he had exclusive opportunity to set the fire in order to support a conviction. There was evidence from which the jury could draw the conclusion that the appellant had the exclusive opportunity of setting the fire, but the evidence was not so compelling as to require that conclusion. The trial Judge instructed the jury that the Crown's case against the appellant was based on opportunity and motive and in our view this instruction may have caused the jury to conclude that those circumstances were suficient in the absence of a clear direction as to the necessity for proof of exclusive opportunity to warrant a conviction.

In those circumstances a careful direction was required that unless the jury reached the conclusion that the appellant had the exclusive opportunity of setting the fire, they could not convict. In our view, the failure of the trial Judge in the circumstances of this case to clearly instruct the jury on this issue, constituted misdirection. Although there was perhaps some evidence of motive it was of negligible weight since on the facts disclosed in the record, there was no clear evidence that the appellant stood to benefit financially from the fire. The trial Judge should have made this clear to the jury.

It may then be concluded that where it is shown that a crime has been committed and the incriminating evidence against the accused is primarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused had exclusive opportunity. In a case, however, where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice. This was the view expressed by Lacourcière J.A. in R. v. Monteleone (1982), 1982 CanLII 2162 (ON CA), 67 C.C.C. (2d) 489 (Ont. C.A.), at p. 493, where he said:

It is not mandatory for the prosecution to prove that the respondent had the exclusive opportunity in a case where other inculpatory circumstances are proved.

It is also supported by further comments of Martin J.A. in R. v. Stevens (1984), 1984 CanLII 3481 (ON CA), 11 C.C.C. (3d) 518, at p. 534 et seq., and see, as well, Imrich v. The Queen, 1977 CanLII 27 (SCC), [1978] 1 S.C.R. 622, per Ritchie J. at p. 627.

27Since there is no evidence in this case directly connecting Yebes to the death of the children, the question which now arises is: Did the appellant during the relevant times have exclusive opportunity to commit the crime of murder? It is unquestionably established in the evidence that after the dinner at which Mrs. Yebes and her daughters were present with Yebes and the boys in the town house, Mrs. Yebes and the daughters left between 8:00 or 8:05 in the evening, leaving Yebes and two boys alone in the house. There is no evidence whatever that she and the daughters, or any other person, were present in the house until the entry of Sergeant Shaw at about 1:00 a.m. The medical evidence established that before the fire was started the boys were killed by some human intervention and that their deaths occurred not later than 12:30 a.m. and possibly before 10:30 p.m. The state of the fire in the mattress and the condition of the bodies upon the arrival of the police at 1:00 a.m. suggests that they died closer to 10:30 p.m. than 12:30 a.m. On that evening the front door of the town house was closed but unlocked. Yebes' evidence was that he habitually locked that door when he went to bed. He couldn't remember whether he had locked it that night, but assumed that he had done so. He did not remember unlocking the door at any time that evening. Yebes testified that he did not give Mrs. Yebes a key to the town house but that the key‑ring for his car keys held a key to the house and on occasion Mrs. Yebes would have driven the car and had access to the key. There is no evidence as to where the key was on the night in question but there is evidence that Yebes knew that the door was unlocked. When the police officer arrived, Yebes called to him from the second floor window, "In here, in here". The police officer entered the unlocked door. Yebes made no move to open it for him. There is no evidence of the presence of any other persons, save the two boys, in the town house that evening. Only the unlocked front door could raise a question as to exclusive opportunity. I am of the view that there was evidence before the jury upon which a properly charged jury could reasonably have reached the conclusion that Yebes had exclusive opportunity to kill the boys. I adopt the comment quoted above by Macdonald J.A. to the effect that the reality of the situation is that only Yebes had the opportunity as well as the motive to commit the crimes charged. In my view, the first ground of appeal must therefore fail.

28The remaining ground that the Crown failed to call a witness, Mrs. Yebes, essential to the unfolding of the narrative, must also fail in my view. The Crown has a discretion as to which witnesses it will call in presenting its case to the court. This discretion will not be interfered with unless the Crown has exercised it for some oblique or improper reason: see Lemay v. The King, supra. No such improper motive is alleged here. While the Crown may not be required to call a given witness, the failure of the Crown to call a witness may leave a gap in the Crown's case which will leave the Crown's burden of proof undischarged and entitle the accused to an acquittal. It is in this sense that the Crown may be expected to call all witnesses essential to the unfolding of the narrative of events upon which the Crown's case is based. It is argued here that the failure to call Mrs. Yebes as a Crown witness was just such a lapse on the part of the Crown and it leaves open an alternative rational conclusion to that of Yebes' guilt. It was argued for Yebes in this Court that Mrs. Yebes had a greater motive than Yebes to commit the crime and also the opportunity. She should have been called to properly complete the narrative.

29It seems to me that this argument is predicated upon pure speculation. It suggests that Mrs. Yebes should have been called to complete the narrative of events which occurred in the town house that evening when there is no evidence whatever that she was present or possessed any knowledge of what occurred. The assumption that she had something to say to complete the narrative is not based on evidence and rests on nothing more than speculation.

30What could Mrs. Yebes add to the narrative? The whole tragic history of these children and this family was put before the court by other witnesses. The facts leading up to the dinner on February 23 were all before the court as were Mrs. Yebes' concerns and attitudes, clearly expressed by Yebes and the other witnesses, including medical and social welfare officials. Her only contribution to the narrative would be related to what happened after her departure from the home at 8:00 p.m. and there is no evidence, or any suggestion that she was present, when the deaths occurred and would have any knowledge on that subject. In the end, all that she could have contributed was the bald assertion that she did not kill the boys.

31For the reasons given above, I would conclude that the majority of the Court of Appeal were not in error in their application of s. 613(1)(a)(i) of the Criminal Code. They correctly applied the test in Corbett and I would dismiss the appeal.