r. v. simpson, [1988] 1 S.C.R. 3

Daniel E. Simpson and Wayne Ochs Appellants

v.

Her Majesty The Queen Respondent

indexed as: r. v. simpson

File Nos.: 17851, 17895.

1986: May 28; 1988: January 28.

Present: Dickson C.J. and Beetz, McIntyre, Wilson and Le Dain JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Charge to jury ‑‑ Parties by common intention ‑‑ Accused committing crime they set out to do ‑‑ Whether trial judge erred in instructing jury with respect to s. 21(2) of the Criminal Code.

Criminal law ‑‑ Charge to jury ‑‑ Four accused charged with murder ‑‑ Co‑accused pleading guilty to a charge of conspiracy to commit murder ‑‑ Whether trial judge erred in failing to warn jury that co‑accused's guilty plea of conspiracy was no evidence against other accused.

Evidence ‑‑ Admissibility of statement ‑‑ Accused's first statement admitted into evidence ‑‑ Second statement made two hours later excluded ‑‑ Defence seeking to use second statement as evidence to show accused's state of mind when first statement made and to rebut suggestion of recent fabrication of a defence ‑‑ Whether trial judge erred in excluding second statement.

Criminal law ‑‑ Substantial wrong and miscarriage of justice ‑‑ Numerous errors on the part of trial judge ‑‑ Misdirection with respect to s. 21(2) of the Criminal Code ‑‑ Exclusion of admissible statement ‑‑ Failure to warn jury that co‑accused's guilty plea of conspiracy was not evidence against other accused ‑‑ Whether s. 613(1)(b)(iii) of the Criminal Code applicable.

The appellants O and S and two accomplices, D and L, were charged with first degree murder. D pleaded guilty to a charge of conspiracy to commit murder and the murder charge against her was withdrawn. She then gave evidence for the Crown at the murder trial. The evidence adduced at trial indicated that D and the appellants, three alcoholics, had agreed to get rid of D's paramour. The appellants then met L who agreed to do the killing. On the day of the crime, the three men drank heavily. In the evening, while O was sleeping, S and L left for the victim's home. S entered the house and told the victim that someone wanted to talk to him. When he stepped outside, L shot and killed him. The three men were arrested shortly after the murder and S made a statement to the police denying any involvement in the killing. Two hours later, he made a second statement recorded on tape where he repudiated the earlier statement and described his participation in the events. On the transcript of the second statement, S appeared to be a "vulgar drunk", suffering withdrawal symptoms and confused about many details. The first statement was ruled admissible but the second was not put into evidence by the Crown despite attempts by the defence to have it admitted. Appellants' defence was that they had never formed the intent to kill D's paramour. They contended that the discussions about killing him were merely "drunk talk". The trial judge instructed the jury on the effect of drunkenness and with respect to s. 21(1) and (2) of the Criminal Code. They were convicted of second degree murder and their appeals to the Court of Appeal were dismissed. These appeals are to determine whether the trial judge erred (1) in instructing the jury to the effect that s. 21(2) of the Code is applicable to a case in which the unlawful purpose in question is the offence with which the accused are charged; (2) in failing to instruct the jury that the fact that an accomplice pleaded guilty to a charge of conspiracy to commit murder was not evidence as against the accused; and (3) in refusing to allow the admission into evidence of the second statement. It was contended that this statement should have been admitted to show S's state of mind when the first statement was made and to rebut the Crown's suggestion of recent fabrication of a defence.

Held: The appeals should be dismissed.

The trial judge erred in instructing the jury with respect to s. 21(2) of the Code. Section 21(2) covers the case where, in the absence of aiding and abetting, a person may become a party to an offence committed by another which he knew or ought to have known was a probable consequence of carrying out an unlawful purpose in common with the actual perpetrator. It does not apply to a case in which the unlawful purpose mentioned in that section is the offence which is ultimately charged.

The trial judge should have warned the jury that D's guilty plea to the conspiracy charge could not be considered evidence against the appellants on the issue of their guilt or innocence. But the omission to give the warning against such misuse of the evidence is not always fatal. In this case where there was no real conflict between D's evidence and that of the appellants, as to the particulars of the conspiracy and the actual killing, the omission of the warning did not amount to reversible error.

Although, as a general rule, statements of an accused person made outside court are not receivable in evidence for him, such statements may be admissible where they are relevant to show the state of mind of an accused at a given time or to rebut the suggestion of recent fabrication of a defence. In this case, the second statement was consistent with the evidence given by S at trial and should have been admitted but only to rebut the Crown's allegation of recent invention of a defence.

Section 613(1)(b)(iii) of the Criminal Code should be applied in this case to affirm the convictions. It is clear from the whole of the evidence that, despite the trial judge's errors, the result would necessarily have been the same. The only conclusion the jury could have reached on the evidence was that the appellants aided and abetted L in the killing.

Cases Cited

Applied: Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739; considered: R. v. Miller and Cockriell (1975), 1975 CanLII 927 (BC CA), 24 C.C.C. (2d) 401, aff'd 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680; R. v. Turkiewicz, Barrow and MacNamara (1979), 1979 CanLII 1804 (ON CA), 50 C.C.C. (2d) 406; R. v. Howard and Trudel (1983), 1983 CanLII 3507 (ON CA), 3 C.C.C. (3d) 399; R. v. Caron (1971), 1971 CanLII 1281 (ON CA), 9 C.C.C. (2d) 447; R. v. Pentiluk and MacDonald (1974), 1974 CanLII 1560 (ON CA), 28 C.R.N.S. 324; R. v. MacGregor (1981), 1981 CanLII 3351 (ON CA), 64 C.C.C. (2d) 353; referred to: R. v. Wong (1978), 1978 CanLII 2367 (BC CA), 41 C.C.C. (2d) 196; Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811; R. v. Ellis (l972), 1972 CanLII 403 (ON CA), 6 C.C.C. (2d) 220; R. v. Moore (1956), 40 Cr. App. R. 50; R. v. Willis (1959), 44 Cr. App. R. 32; R. v. Giraldi (1975), 1975 CanLII 1367 (BC CA), 28 C.C.C. (2d) 248; R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 38 C.C.C. (2d) 6; Mahoney v. The Queen, 1982 CanLII 21 (SCC), [1982] 1 S.C.R. 834; Schmidt v. The King, 1945 CanLII 4 (SCC), [1945] S.C.R. 438; Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, ss. 21, 613(1)(b)(iii), 618(1)(a) [am. 1974‑75‑76, c. 105, s. 18].

Authors Cited

McWilliams, Peter K. Canadian Criminal Evidence, 2nd ed. Aurora, Ontario: Canada Law Book, 1984.

Phipson, Sidney L. Phipson on Evidence, 13th ed. By John Huxley Buzzard, Richard May and M. N. Howard. London: Sweet & Maxwell, 1982.

APPEALS from a judgment of the British Columbia Court of Appeal (1983), 1983 CanLII 238 (BC CA), 6 C.C.C. (3d) 516, [1983] 5 W.W.R. 673, dismissing appellants' appeals from their convictions of second degree murder. Appeals dismissed.

Jay B. Clarke, for the appellant Simpson.

Glen Orris, for the appellant Ochs.

A. M. Stewart, for the respondent.

The judgment of the Court was delivered by

1. McIntyre J.‑‑This appeal from the Court of Appeal of British Columbia comes before the Court as of right, pursuant to the provisions of s. 618(l)(a) of the Criminal Code. The two appellants were convicted of second degree murder as the result of the killing of one Brousseau, at Kimberley, British Columbia, on May 2, 1980, and their appeal was dismissed by the Court of Appeal on July 5, 1983, with one dissent: (1983), 1983 CanLII 238 (BC CA), 6 C.C.C. (3d) 516.

2. The deceased Brousseau had lived with Giselle Dumoulin for some twenty years prior to his death. Dumoulin and the appellant Ochs met in May of 1979 and by April of 1980 a sexual relationship had developed between them. At that time, the deceased was working away from Kimberley. Dumoulin and Ochs were both alcoholics and for some time prior to the killing both had been drinking heavily. In this activity they were frequently joined by the appellant Simpson, a friend of Ochs and also an alcoholic. On an occasion during the third week of April 1980, when the three, Dumoulin, Ochs and Simpson, were at Dumoulin's house in Kimberley, Dumoulin complained of the treatment she received from her paramour, the deceased, and said he had made a sexual attack on her daughter. According to Dumoulin's evidence, it was upon this occasion that Ochs asked her how much it would be worth to her to get rid of Brousseau. She replied that she didn't know but when Ochs suggested a figure of $10,000 she replied, "O.K." On April 23rd or 24th, there were further discussions of Brousseau's conduct toward Dumoulin's daughter. On April 26th, one L'Ortye, a co‑accused with Simpson and Ochs, arrived in Kimberley. He was introduced to Ochs and Simpson by one Carrier, at whose home L'Ortye was living. The deceased Brousseau returned to Kimberley on April 27th, 1980.

3. On April 30th, 1980, according to the evidence of Carrier, there was a further discussion of Brousseau's conduct in L'Ortye's presence when Ochs said that "Brousseau has to go". From this occasion, L'Ortye joined Ochs and Simpson in their heavy drinking. On May 1st, Ochs telephoned Dumoulin and said that he had a guy who would "do the job" for $10,000. That day, the three, Simpson, Ochs and L'Ortye, drove past Brousseau's house, which was pointed out to L'Ortye. On Friday, May 2nd, the day of the killing, Dumoulin telephoned Ochs and made an arrangement to meet him at a school near Kimberley. Ochs, Simpson and L'Ortye drove in Ochs' car to the school where they met Dumoulin who had arrived in her car. Ochs left his vehicle and spoke with Dumoulin. According to her evidence, during this conversation Ochs pointed out L'Ortye and said that he would kill Brousseau for $5,000.

4. During the afternoon of May 2nd, 1980, Ochs, Simpson and L'Ortye were at Ochs' home in Kimberley. At some time during the afternoon, L'Ortye borrowed Ochs' car and retrieved a rifle, which was used in the shooting, from a hiding place where he said he had concealed it. It is not clear whether Ochs or Simpson accompanied him on this occasion. Dumoulin testified that at approximately 6:00 p.m. the same evening, May 2nd, she made a telephone call to Ochs, during which there was a discussion about preparation to kill Brousseau. Ochs denied this conversation. Ochs' daughter testified as to the events at Ochs' home during the afternoon and evening of May 2nd. She said that after some conversation between the three men, Ochs, Simpson and L'Ortye, Ochs went to sleep on a chesterfield in the living room. L'Ortye brought in a rifle from the car. When he was cleaning and loading it, the rifle went off and made a hole in the kitchen ceiling. Ochs slept through this incident. There was continual drinking on this occasion by the three men.

5. According to the evidence given at trial, at some time in the evening on May 2nd Simpson and L'Ortye left Ochs' home and drove in Ochs' car to a public house. After a short stay, they left with Simpson driving. He was drunk, however, and L'Ortye took over the driving while Simpson went to sleep. L'Ortye drove to Brousseau's house and on arrival Simpson awoke. According to Dumoulin's evidence, between 9:00 and 9:30 p.m. on May 2nd, a car drove into the driveway of the Brousseau home. Simpson came to the door and asked for Brousseau. He entered the house and told Brousseau that there was someone outside who wished to speak to him. Brousseau went out and returned shortly, saying no one was there, but at Simpson's suggestion, he went out a second time and on this occasion L'Ortye shot and killed him. The evidence is unclear as to exactly where Simpson was when the shot was fired. Simpson and L'Ortye then drove off, with Simpson driving. At some point, they stopped and L'Ortye hid the rifle. They then went to the home of one Thompson where they did some drinking. After some time, they left Kimberley, still in Ochs' car, and drove to Cranbrook where they arrived at one Malberg's house at about 2:00 a.m., May 3rd, 1980.

6. When Simpson and L'Ortye departed from Ochs' home with his car in the early evening of May 2nd, Ochs himself was asleep. He awoke about 11:00 p.m. and went to a public house in Kimberley. When it closed, he came home where he received a telephone call about 4:00 a.m. from Simpson. Ochs then went by taxi to Malberg's house in Cranbrook, where he met Simpson and L'Ortye, and where he learned of the shooting and the disposal of the rifle.

7. At about 8:00 a.m. on May 3rd, the police came to Malberg's home in Cranbrook and arrested Ochs and Simpson. L'Ortye, who was present at that time, was allowed to leave. He was later arrested in Kimberley. Ochs and Simpson were taken to the police station in Cranbrook, where Ochs gave a statement to the police at 8:50 a.m. in which he said that at the time of the shooting he was in a hotel bar and that Simpson had his car. He said that his relationship with Dumoulin did not involve sexual relations. At approximately 9:00 a.m., Simpson made a statement to the police, in which he said that he was last at Brousseau's house some five days before the killing. The police then drove Ochs and Simpson to the police station in Kimberley. Ochs gave a second statement to the police about 11:00 a.m. in which he told much the same story as before. Both statements were put in evidence at the trial. Simpson was also interviewed a second time at Kimberley commencing about 11:15 a.m. on May 3rd. The ensuing conversation, partly in the police station and continuing later in a police car, was recorded on tape and then transcribed. It will hereafter be referred to as the second or 11:15 a.m. statement. It, in effect, repudiated the earlier statement and described at some length his participation in the events in connection with the case. It was not put into evidence by the Crown, despite the fact that counsel for Simpson repeatedly endeavoured to have it admitted. Dumoulin, Simpson, Ochs and L'Ortye were arrested and charged with first degree murder. Dumoulin pleaded guilty to a charge of conspiracy to kill Brousseau and the murder charge was withdrawn. She was sentenced to four years' imprisonment. She then gave evidence for the Crown at the trial of L'Ortye, Ochs and Simpson.

8. At trial, all three accused were convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for ten years. The Crown's theory at the trial was that L'Ortye committed the murder and Simpson and Ochs aided and abetted the killing. In this, the Crown relied on ss. 21(1)(b) and (c) of the Criminal Code. The Crown also took the position that s. 21(2) of the Code was applicable because the three accused formed an intention in common to carry out an unlawful purpose, that is, to murder Brousseau, and L'Ortye did so. Alternatively, the Crown took the position that the three accused together formed an intention in common to effect the unlawful purpose of scaring Brousseau and in carrying out the purpose one of them, L'Ortye, killed Brousseau.

9. Ochs' defence was that he had never formed the intent to kill Brousseau. He said that the talk and discussions about killing him were merely "drunk talk". It was also said that he thought L'Ortye only intended to frighten Brousseau. Though not raised as a defence by Ochs at his trial, the trial judge considered that on the evidence, the defence of abandonment of the common purpose could be open and he instructed the jury upon it. He also instructed on the effect of drunkenness on Ochs' capacity to form the intent to kill. Simpson's defence was also that he had not formed the intent to kill Brousseau and that talk of such a thing was all drunk talk. He raised the defence of duress, saying he was afraid of L'Ortye and that he only went to Brousseau's house out of fear. The charge with respect to drunkenness also applied to Simpson. L'Ortye abandoned his appeal and the appeals of Ochs and Simpson were dismissed on July 5. Notice of appeal to this Court was given on September 13, 1983.

10. In the Court of Appeal (McFarlane, Taggart, Seaton, Craig and Macfarlane JJ.A.) three judgments were written. Taggart J.A., with whom McFarlane and Macfarlane JJ.A. concurred, dismissed the appeal on the grounds that in his view the trial judge did not err in his instructions to the jury in respect of s. 21(2) of the Criminal Code, there was no error in the failure to instruct the jury as to the effect of Dumoulin's plea of guilty to the conspiracy charge, and Simpson's second statement was properly rejected. Craig J.A. wrote a separate judgment which concurred in the result, but in which he expressed the view that the trial judge had erred in his instructions to the jury on s. 21(2) and in failing to warn them about Dumoulin's guilty plea. He was of the opinion, however, that no substantial wrong or miscarriage of justice had occurred, and he applied the proviso in s. 613(1)(b)(iii) of the Code to dismiss the appeal. Seaton J.A. dissented and the grounds of his dissent are recorded in the formal order of the Court of Appeal in these terms:

11. THAT the learned trial court judge erred in instructing the jury to the effect that Section 21(2) of the Criminal Code is applicable to a case in which the unlawful purpose in question is the offence with which the accused is charged in the indictment.

12. THAT, in the circumstances to this case, the learned trial court Judge erred in failing to instruct the jury that the fact that Giselle Dumoulin pled guilty to a charge of conspiracy to commit murder was not evidence as against the accused Simpson and Ochs.

13. THAT, the learned trial court judge erred in refusing to allow the admission into evidence of a tape‑recorded statement made by the accused Simpson to the police shortly after 11:00 a.m. May the 3rd 1980.

[Section 21](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

11. The first ground of dissent in the Court of Appeal has been set out above. Seaton J.A. was of the view that it was error to equate the unlawful purpose referred to in s. 21(2) with the actual offence charged. It is apparent that, in his view, this case was not one which engaged s. 21(2) of the Criminal Code but rather fell for decision under the provisions of s. 21(1).

12. In charging the jury, the trial judge gave directions upon both s. 21(1) and s. 21(2) of the Criminal Code and directed the jury on the evidence relevant to these issues. No exception was taken to his direction as it applied to s. 21(1) and no error in respect of it is asserted before this Court. It was the trial judge's treatment of s. 21(2) which provoked Seaton J.A.'s dissent on this issue. As stated in the formal order of the Court of Appeal, the question is: Is section 21(2) of the Criminal Code "applicable to a case in which the unlawful purpose in question is the offence with which the accused is charged in the indictment?"

13. There has been a good deal of controversy on this issue and it has been agreed by most judges who have expressed views on the matter that the words of s. 21(2) of the Criminal Code on their face could bear either meaning, that is to say, the one attributed to the section by Taggart J.A. or that favoured by Seaton J.A. in his dissent. Taggart J.A. was of the view that a trial judge was entitled to leave s. 21(2) of the Code with the jury, even when the intention in common to carry out an unlawful purpose which renders the subsection applicable was to commit the actual offence charged. He discussed various authorities and relied upon the statement of McFarlane J.A. in R. v. Wong (1978), 1978 CanLII 2367 (BC CA), 41 C.C.C. (2d) 196 (B.C.C.A.), at p. 202:

Again, with great respect, there is confusion between intention (to carry out an unlawful purpose and assist therein) and the knowledge, actual or imputed, of a probable consequence of carrying out the purpose. So far as intention is an element I think the provisions of our subsection are satisfied if there is an intention in common to carry out an unlawful purpose and it matters not whether the unlawful common purpose was culpable homicide. Our subsection makes a person party to an offence where his only intention is to carry out an unlawful purpose, provided he knew or ought to have known that the offence actually committed was a probable consequence of carrying out the unlawful purpose.

It may be observed, however, that while this statement has frequently been cited as authority supporting the view favoured by Taggart J.A., it was made in a somewhat different context. McFarlane J.A. in Wong, when he used the words referred to above, was responding to an argument raised on behalf of Wong that there had been error at trial when the trial judge failed to leave open a possible conviction of manslaughter if there had been no intent to kill. McFarlane J.A. was pointing out that the only element of intent required in s. 21(2) of the Code is the intent to carry out an unlawful purpose and assist each other in connection therewith. Thereafter, any offence committed by one of them would render the other guilty of the actual offence committed without any further consideration of intent. I would therefore express some doubt as to the applicability of these words in considering the question arising here which involves no question of an included offence with a differing intention. Both Seaton and Craig JJ.A. disagreed with Taggart J.A. Dealing with this question, Seaton J.A. said, at pp. 535‑36:

I see no need to strain the language of s. 21(2) to encompass a case where the offence committed is the offence that was intended. The provisions of ss. 21(1) and 22 are quite sufficient, especially when the word "abet" is given its full meaning. Much of the evidence that points to Ochs and Simpson being parties pursuant to s. 21(2) points also to them being abettors, aiders and counsellors.

Offering s. 21(2) in the manner it was offered here might induce confusion. To say that "when two or more form an intention in common to murder Brousseau and in murdering Brousseau, one of them murders Brousseau each of them who knew that the murdering of Brousseau would be a probable consequence of carrying out the murder of Brousseau...'' is bound to confuse the jury. Of course, the trial judge did not put it in those words, but that was what was meant . . . .

And in a similar vein Craig J.A. said, at p. 543:

In other words, the "unlawful purpose" and "the offence" committed in the course of carrying out the "unlawful purpose" are different. I think that s‑s.(2) is supplementary to s‑s.(1) and that in enacting it Parliament intended to ensure that a person would be a party not only to an offence which he aided or abetted but also to an offence which he did not aid nor abet but which he knew or ought to have known was a probable consequence of carrying out the unlawful purpose.

They also relied on the words of Robertson J.A. in R. v. Miller and Cockriell (1975), 1975 CanLII 927 (BC CA), 24 C.C.C. (2d) 401 (B.C.C.A.) (appeal to the Supreme Court of Canada dismissed, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680), at pp. 439‑40:

I cannot accede to this argument. I doubt that this was a case under s. 21(2) at all. That deals primarily with a case where A and B form an intention in common to carry out an unlawful purpose and in carrying out that purpose one of them commits an offence. It does not appear to me to be directed to a case where A and B form an intention to commit a particular crime and in carrying out their intent do commit that crime. The latter type of case is covered by s. 21(1). In s. 21(1) I think that para. (a) fits the case at bar: Miller held the barrel of the rifle in position to shoot out the window and Cockriell pulled the trigger; together they aimed and fired the rifle and each was equally guilty of shooting the constable to death. Alternatively, if I am wrong and Cockriell alone did the shooting, para. (b) makes Miller a party to the offence.

In my opinion the effect of s. 21(2) does not extend back into s. 21(1) so as to make it necessary, where s. 21(1) applies, to charge the jury about probable consequence. It would be absurd to tell a jury that, if they find that the accused intended to kill a man, they must be satisfied that he knew that, if he did kill the man, a probable consequence would be that the man would be dead.

Taggart J.A., who had carefully examined many of the authorities, did not consider that these words of Robertson J.A. in Miller and Cockriell supported the position taken by Seaton J.A. In his view, Robertson J.A. had simply held that s. 21(2) of the Code did not apply to the facts in that case. It was a case which fell properly into s. 21(1) and reference to s. 21(2) was therefore unnecessary. Nevertheless, the words of Robertson J.A. have frequently been used to support the position of Seaton J.A. in his dissent. The Ontario Court of Appeal dealt with this issue in R. v. Turkiewicz, Barrow and MacNamara (1979), 1979 CanLII 1804 (ON CA), 50 C.C.C. (2d) 406, where Zuber J.A., speaking for the court (Brooke, Arnup and Zuber JJ.A.), said at p. 409:

Section 21(2) which speaks of the knowledge of probable consequences has no application to this case when the parties did precisely what they set out to do: see R. v. Miller and Cockriell (1975), 1975 CanLII 927 (BC CA), 24 C.C.C. (2d) 401 at p. 440, 63 D.L.R. (3d) 193 at p. 232, 33 C.R.N.S. 129 (affirmed 1976 CanLII 12 (SCC), 31 C.C.C. (2d) 177, [1977] 2 S.C.R. 680, 70 D.L.R. (3d) 324). It is only s. 21(1) that can have any application to this case and in the light of the facts of this case the mere reading of the section was sufficient.

And, more recently, Howland C.J.O. in R. v. Howard and Trudel (1983), 1983 CanLII 3507 (ON CA), 3 C.C.C. (3d) 399, said at p. 408:

It was held by this court in R. v. Turkiewicz, Barrow and MacNamara (1979), 1979 CanLII 1804 (ON CA), 50 C.C.C. (2d) 406, 103 D.L.R. (3d) 332, 26 O.R. (2d) 570, that s. 21(2) does not apply where the parties do precisely what they set out to do. Under s. 21(2) where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein, the unlawful purpose referred to is not the offence charged.

It could be said that both Turkiewicz and Howard were cases where on their facts s. 21(2) of the Code did not apply; that they were cases of aiding and abetting more properly to be considered under s. 21(1). They do, however, in my view, support the views expressed by Seaton J.A. in his dissent and by Craig J.A. on this issue.

14. While acknowledging that the words of s. 21 of the Criminal Code could be read to support either contention, and while not overlooking the fact that I was a member of the court in Wong and in Miller and Cockriell, which cases are said to express conflicting views on the question, I am of the opinion that the weight of the authorities supports the dissenting view of Seaton J.A., to the effect that the unlawful purpose mentioned in s. 21(2) must be different from the offence which is actually charged. In reaching this conclusion, I adopt the words of Craig J.A., supra. The "unlawful purpose" and "the offence" committed in the course of the pursuit of the unlawful purpose are different. The two subsections of s. 21 deal with different circumstances. Subsection (1) applies to make everyone a party to an offence who commits it or who aids and abets in its commission. Subsection (2) covers the case where, in the absence of aiding and abetting, a person may become a party to an offence committed by another which he knew or ought to have known was a probable consequence of carrying out an unlawful purpose in common with the actual perpetrator. I am of the opinion that the trial judge was in error in his charge to the jury with respect to s. 21(2) of the Criminal Code.

Dumoulin's Guilty Plea

15. It will be recalled that Dumoulin, after pleading guilty to conspiracy and being sentenced, gave evidence for the Crown. In dealing with her evidence in his charge to the jury, the trial judge instructed the jury that there was evidence upon which they could conclude that she had been an accomplice of Ochs, Simpson and L'Ortye and that it was dangerous to convict upon the evidence of an accomplice in the absence of corroboration but they could do so if satisfied beyond a reasonable doubt that the accomplice evidence was true. The charge was delivered before the rendering of this Court's judgment in Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. He gave further instructions as to the nature of corroborative evidence and reviewed the relevant evidence for them. No objection is taken to the charge in this respect. The appellants, however, argue that the jury should have been directed, as well, that the fact that Dumoulin had pleaded guilty to the conspiracy charge could not be considered as evidence against Simpson, Ochs and L'Ortye on the issue of their guilt or innocence.

16. In the Court of Appeal, Seaton J.A., with whom Craig J.A. agreed on this issue, was of the view that the omission of a direction to the above effect, with respect to the evidence of Dumoulin, was an error of great significance. He referred to R. v. Caron (1971), 1971 CanLII 1281 (ON CA), 9 C.C.C. (2d) 447 (Ont. C.A.), and R. v. Ellis (1972), 1972 CanLII 403 (ON CA), 6 C.C.C. (2d) 220 (Ont. C.A.), as well as other authorities which deal with the question. Taggart J.A. distinguished the decisions relied upon by Seaton J.A. on the basis that they dealt with cases where the plea of guilty had been entered to the same offence with which a co‑accused was charged, whereas in the case at bar Dumoulin had pleaded guilty to a charge of conspiracy while the others had been charged with murder. This distinction was not considered sufficient by Seaton J.A.

17. This question was said to be of particular importance in this case. Dumoulin pleaded guilty to a charge of conspiracy to commit the crime which was, in fact, committed, and with which her co‑conspirators were charged. In addition she gave evidence, the admissibility of which was incontestable, which, taken with other evidence including that of Ochs and Simpson, tied Ochs and Simpson into the conspiracy and furnished evidence of motive and of the actual killing. It was argued that it would have been a very natural mistake for the jury to consider that, since she had pleaded guilty to entering into an agreement to procure the killing of Brousseau, she could only have done so with Ochs and Simpson. This they might naturally consider as cogent evidence of guilt of the murder of Brousseau by Ochs and Simpson. It is for this reason that it has been considered necessary to warn juries of the danger of misapplying evidence in this fashion.

18. In R. v. Caron, supra, the Ontario Court of Appeal (Aylesworth, McGillivray and Evans JJ.A.) considered this question. In that case, on a charge of robbery an accomplice of Caron pleaded guilty to robbery and gave evidence for the Crown. Aylesworth J.A., speaking for the court, said at pp. 447‑48:

The entire trial, and it was a lengthy trial, of the appellant is permeated, and not improperly permeated, but nevertheless permeated with evidence of the actions of the accomplice Funnell. The question of the guilt or innocence of the appellant is irrevocably entwined with the actions of Funnell.

That being so, we think it was directly incumbent upon the trial Judge to warn the jury not only as to his being an accomplice, which we think was done satisfactorily, but that the fact that Funnell had pleaded guilty to the same charge as was before them with respect to the appellant and had been convicted and sentenced on that plea, was no evidence whatsoever of the guilt of the appellant. We think it was vital to a fair trial that this be done despite the fact, as I have said, that the evidence of Funnell's actions permeated the entire evidence as to trial and that Funnell himself gave extensive evidence in the witness‑box. It still remained a paramount duty of the trial Judge in such circumstances, we think, to warn the jury against their very likely mistake, if not warned, that Caron must be guilty since he was associated with Funnell and Funnell had pleaded guilty, had been convicted upon that plea and sentenced.

19. This view was approved in the related case of R. v. Ellis, supra, and, for an English case dealing with the same point, see R. v. Moore (1956), 40 Cr. App. R. 50. It may well be observed, however, that while the role played in this case by Dumoulin was indeed significant, particularly when it is recalled that she instigated the plot, her evidence was largely consistent with that given by both Ochs and Simpson at trial. On the authorities, however, a warning such as that contended for here should have been given to the jury.

20. This question was considered again in R. v. Pentiluk and MacDonald (1974), 1974 CanLII 1560 (ON CA), 28 C.R.N.S. 324 (Ont. C.A.) Pentiluk and MacDonald were jointly charged with murder in two indictments dealing with two killings. Both killings occurred in one transaction and the indictments were tried together. Pentiluk pleaded guilty to manslaughter. MacDonald argued that the trial judge should have warned the jury that the guilty plea of manslaughter by Pentiluk was not evidence against him. At page 330, Martin J.A., speaking for the court (Gale C.J.O., Evans and Martin JJ.A.) said:

The other grounds of appeal with respect to which the Court required to hear argument from the Crown relate only to the appellant MacDonald. The first of such grounds is that the learned trial Judge erred in failing to direct the jury that the plea of guilty by Pentiluk was not evidence in any way against the appellant MacDonald, in conformity with the judgment of this Court in Regina v. Caron (1973), 1971 CanLII 1281 (ON CA), 9 C.C.C. (2d) 447. In some circumstances the failure to so direct the jury would constitute serious non‑direction. However, in the present case the foundation of the defence advanced by the appellant MacDonald was that Pentiluk had shot the deceased, but that he was not a party to the killings. It is difficult to understand how an admission by Pentiluk that he had killed the deceased could prejudice the appellant MacDonald, in view of the nature of his defence. Moreover, the learned trial Judge was not requested by counsel at the trial to instruct the jury in the way it is now argued that he should have instructed them in this respect.

A similar comment was made by Martin J.A. for the court (Arnup, Martin and Thorson JJ.A.) in R. v. MacGregor (1981), 1981 CanLII 3351 (ON CA), 64 C.C.C. (2d) 353, at pp. 357‑58, in these terms:

The second ground of appeal on which we required to hear argument from Crown counsel is that the trial Judge erred in failing to instruct the jury that the pleas of guilty by the co‑accused were not evidence against the appellant and in failing to direct the jury to disregard those pleas in considering the case against the appellant. Admittedly, it was error for the trial Judge to fail to instruct the jury that in considering the case against the appellant they should disregard the pleas of guilty of manslaughter by the co‑accused and that those pleas were not in any way to be taken into account in considering the case against the appellant. In some circumstances this failure would be fatal but in the circumstances of this case it did not result in any real prejudice to the appellant and Mr. Rosen, in the course of a very able argument, was unable to satisfy us what prejudice there might have been.

These comments follow Caron, but may be said to import the need to find a risk of prejudice to the accused by the omission of the warning against the use of the evidence of a guilty plea as evidence against a co‑accused. They also stand for the proposition that an omission to give the warning against such misuse of the evidence will not always be fatal. In this case, where, as has been noted, there was no real conflict between the evidence of Dumoulin on significant points and that of both co‑accused, as to the particulars of the conspiracy and the actual killing, it is difficult to see how the omission of the warning could amount to reversible error.

Admissibility of Statement Made at 11:15 a.m., May 3, 1980

21. It will be recalled that on the morning after the killing the police arrested Simpson and Ochs at Cranbrook. They took a statement from Simpson at approximately 9:00 a.m. which, having been found voluntary on a voir dire, was admitted in evidence. They then took Simpson to Kimberley and commencing at approximately 11:15 a.m. they took a second statement. This statement was made in the presence of two R.C.M.P. officers, Lawson and Zaichkowsky. It was recorded on tape and transcribed. It consists of some fourteen pages of questions and answers covering the events which gave rise to these proceedings. It was not tendered in evidence by the Crown but was exhibited on a voir dire. It is difficult to ascertain from the record whether a specific finding was made as to whether it was voluntary. This fact is unimportant for it is the defence, not the Crown, which seeks the admission of the statement. The defence at trial sought on various occasions to have the transcript admitted so it could be considered by the jury, but its admission was refused. It is this refusal which led to the third ground of dissent relied upon by Seaton J.A. in the Court of Appeal. The first statement was recorded in the handwriting of the officer Zaichkowsky. It is only two pages in length. It consists largely of a series of questions posed by the police officer with the answers given by Simpson. Simpson denies any participation in the events of the previous night and denies that he was in Kimberley on that occasion, having spent the night in Cranbrook. He also denies that he knew Brousseau. The answers attributed to Simpson appear to be those of a rational person in full possession of his faculties. The transcript of the second statement reveals a different picture. He appears to be a "vulgar drunk" suffering withdrawal symptoms and confused about many details. Seaton J.A. expressed the view that it was difficult to believe that the first statement could be made by the same rambling, drunken individual who made the second statement some two hours later and without having done any further drinking in the interval. He was of the view that the second statement was wrongly excluded by the trial judge, because it was clear evidence of the state of mind of Simpson at the time he made the first statement. He said, at p. 539:

If the jury had heard the tape‑recording it is unlikely that they would have thought Simpson capable at nine o'clock in the morning of the conduct which Crown counsel attributed to him. The tape‑recording demonstrated Simpson's condition as no description could. He had nothing to drink between the two statements, yet at 11:15 a.m. he was in a terrible state. The answers in the nine o'clock statement bear no resemblance to the answers given by the rambling, vulgar drunk we heard on the tape.

He saw as well a further objection to the exclusion of the second statement. Crown counsel, he said, had vigorously attacked the evidence given by Simpson, Ochs and L'Ortye, partly on the basis that they had recently fabricated their defences. By excluding the second statement, prejudice resulted to Simpson because the jury was left with the suggestion that Simpson was a calculating liar, that he had lied in the first statement and had persisted in the lies to the date of trial when a recently fabricated story was then presented to the jury. In these circumstances, ordinary justice required that the second statement, made only two hours after the first, which he considered was largely consistent with the evidence given by Simpson at trial, should be admitted. He said, at p. 540:

There is no rule excluding previous consistent statements. They are rejected simply because they are valueless: see Wigmore on Evidence (Chadbourn Rev.), vol. 4, § 1124. If for some reason they become valuable then they become admissible. Thus a suggestion that evidence was recently contrived makes an earlier consistent statement admissible: see R. v. Wannebo (1972), 1972 CanLII 1440 (BC CA), 7 C.C.C. (2d) 266, [1972] 5 W.W.R. 372. The statement rebuts the suggestion of recent fabrication.

22. The Crown position, briefly stated, is that the trial judge made no error in declining to admit the second statement. It was contended that the second statement is not admissible as a previous consistent statement to rebut the allegation of recent fabrication, because the statement is not consistent with the evidence given by Simpson at his trial.

23. Before this Court it was contended for Simpson that the second statement was receivable for four reasons. The first was that the 11:15 a.m. statement was merely a continuation of the 9:30 statement. This ground was not seriously argued before us and, in my view, has no merit. The second and third grounds overlap. They are based on the proposition that the second statement recorded on tape provided original circumstantial evidence of the state of mind and general condition of Simpson when he made the first statement, and it was therefore admissible on the issue of the weight that should be attributed to the first statement and to the defence raised by Simpson. The fourth ground asserted that the second statement was admissible to rebut the suggestion of recent invention of a defence.

24. As a general rule, the statements of an accused person made outside court‑‑subject to a finding of voluntariness where the statement is made to one in authority‑‑are receivable in evidence against him but not for him. This rule is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross‑examination. It is, however, not an inflexible rule, and in proper circumstances such statements may be admissible; for example, where they are relevant to show the state of mind of an accused at a given time or to rebut the suggestion of recent fabrication of a defence. The first exception has been recognized in the authorities and in the text writings. In Phipson on Evidence (13th ed. 1982), para. 7‑34, the following appears:

Whenever the physical condition, emotions, opinions and state of mind of a person are material to be proved, his statements indicative thereof made at or about the time in question may be given in evidence. In the case of physical condition or emotions, if they were the natural language of the affection, whether of body or mind, they furnish original and satisfactory evidence of its existence, and the question whether they were real or feigned is for the jury to determine.

In the English case of R. v. Willis (1959), 44 Cr. App. R. 32, at p. 37, Parker L.C.J. put it in these terms:

...provided the evidence as to his state of mind and conduct is relevant, it matters not whether it was in regard to the conduct at the time of the commission of the offence or, as here, at a subsequent time to explain his answers to the police and his conduct when charged.

As noted above, Seaton J.A. found it impossible to believe that the "vulgar drunk" revealed in the second statement could have made the precise statement earlier taken. The weight which the jury might give to the first statement could be affected if they heard the second, and the significance of the lies in the first statement might be greatly diminished upon a consideration of the state of mind revealed in the second.

25. The suggestion of recent fabrication may, as well, be met by the introduction of a previous statement of the accused. Phipson, supra, at para. 33‑50, states:

(c) Statements rebutting an allegation of recent fabrication. "If, in cross‑examination, a witness's account of some incident or set of facts is challenged as being a recent invention, thus presenting a clear issue as to whether at some previous time he said or thought what he has been saying at the trial, he may support himself by evidence of earlier statements by him to the same effect. Plainly the rule that sets up the exception cannot be formulated with any great precision, since its application will depend on the nature of the challenge offered by the course of cross‑examination and the relative cogency of the evidence tendered to repel it." The rule was applied by the Court of Appeal (Criminal Division) in 1971. The mere fact that the witness's testimony is impeached in cross‑examination does not render such evidence admissible.

and in a similar vein see McWilliams in Canadian Criminal Evidence (2nd ed. 1984), at p. 355:

If, on cross‑examination, a witness' account of some incident or set of facts is challenged as being of recent invention or concoction, this raises an issue which the party calling the witness is permitted to rebut by showing that at some earlier time, the witness made an earlier statement to the same effect: Fox v. General Medical Council, [1960] 3 All E.R. 225 (P.C.); R. v. Benjamin (1913), 8 Cr. App. R. 146; R. v. Neigel (1918), 1918 CanLII 669 (AB SCAD), 29 C.C.C. 232 (Alta. S.C. App. Div.); R. v. Coyle (1855), 7 Cox C.C. 74; R. v. St. Lawrence (1949), 1949 CanLII 100 (ON SC), 93 C.C.C. 376 (Ont. H.C.J.); R. v. Lalonde (1971), 1971 CanLII 529 (ON SC), 5 C.C.C. (2d) 168 (Ont. H.C.J.); R. v. Wannebo (1972), 1972 CanLII 1440 (BC CA), 7 C.C.C. (2d) 266 (B.C.C.A.). As to admission of previous consistent statements prior to cross‑examination see: R. v. Giraldi (1975), 1975 CanLII 1367 (BC CA), 28 C.C.C. (2d) 248 (B.C.C.A.); R. v. Racine (1977), 1977 CanLII 2106 (ON CA), 32 C.C.C. (2d) 468 (Ont. C.A.); R. v. Campbell, supra. See generally, "Consistent Statements of a Witness" by M. T. MacCrimmon, 17 Osgoode Hall L.J. 285 (1979).

26. The courts have recently applied this exception to the general rule against the admission of self‑serving statements by the accused where no direct allegation of recent fabrication has been made. In R. v. Giraldi (1975), 1975 CanLII 1367 (BC CA), 28 C.C.C. (2d) 248 (B.C.C.A.), McFarlane J.A., speaking for the court (McFarlane, Branca, Carrothers JJ.A.), said, at p. 253:

I find the reasoning of the Judges in this case impelling. That reasoning does not support the proposition that the only basis for applying the exception and admitting the evidence is the fact that cross‑examination of the witness has been of such a nature as to lay a foundation for inferring a recently fabricated or contrived story. On the contrary it supports the view, which in my opinion is the correct one, that that foundation may be laid in other ways including the whole circumstances of the case and the conduct of the trial. Moreover, it is very much a matter for the trial Judge who is required to consider the question of admissibility with great care before allowing the earlier self‑serving statement to be admitted.

I think also this view that a suggestion of recent fabrication need not necessarily be made expressly but may arise implicitly is supported on a careful consideration of the judgments of the Ontario Court of Appeal in R. v. Pappin (1970), 12 C.R.N.S. 287, and R. v. Rosik (1970), 1970 CanLII 278 (ON CA), 2 C.C.C. (2d) 351, [1971] 2 O.R. 47, 13 C.R.N.S. 129 (appeal in the latter to the Supreme Court of Canada dismissed, 2 C.C.C. (2d) 393n, [1971] 2 O.R. 89n, [1971] S.C.R. vi).

And in R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 38 C.C.C. (2d) 6 (Ont. C.A.), Martin J.A., speaking for the court (Arnup, Martin and Lacourcière JJ.A.), said, at pp. 18‑19:

I accept the proposition that an express allegation of recent fabrication in cross‑examination is not necessary before the exception with respect to rebutting an allegation of recent fabrication becomes operative, and that a suggestion that the accused's story has been recently contrived may also arise implicitly from the whole circumstances of the case, the evidence of the witnesses who have been called, and the conduct of the trial. Where the circumstances are such as to raise the suggestion that the accused's evidence is a recent fabrication, counsel may properly anticipate the allegation of recent fabrication in cross‑examination, and examine the accused in chief with respect to previous statements to other persons, prior to his being cross‑examined: see R. v. Giraldi (1975), 1975 CanLII 1367 (BC CA), 28 C.C.C. (2d) 248, [1975] W.W.D. 166; R. v. Racine (1977), 1977 CanLII 2106 (ON CA), 32 C.C.C. (2d) 468, at p. 473; Previous Consistent Statements, at pp. 86‑7, by R. N. Gooderson.

From these authorities, it is my view that the second statement made by Simpson could in proper circumstances have been admitted in evidence at the request of Simpson. The Crown, of course, could not have been compelled or directed to tender it. It remains then to consider whether in the facts of this case the trial judge should have exercised his discretion by admitting the second statement on the application of the defence.

27. I have read the transcript of the second statement, I have examined the evidence of the appellants, in chief and in cross‑examination, and I have reached the conclusion that the second statement is, in general, a statement consistent with the evidence given by Simpson at his trial. There are discrepancies, but they assume relatively little significance when the whole of Simpson's evidence is read with the second statement. The statement is, of course, self‑serving, but on the whole is consistent with his testimony. It may be that the statement would be relevant on the issue of Simpson's state of mind when he made it and, to some extent, when the killing occurred. However, the essence of the second statement was heard by the jury in the testimony of Simpson and it would shed little if any light not already found in the viva voce evidence on the actual killing. The only basis, in my view, upon which it could be said to be admissible would be to rebut any suggestion by the Crown of recent invention of a defence by Simpson. The Crown had taken the position that Simpson was a liar and had illustrated that fact by the introduction of his earlier statement which stood in marked contrast to his evidence given at trial. In these circumstances, Simpson would be entitled to have the second statement before the jury to show that whatever falsehoods he had given the police in his first statement, he had in his second statement, made some two hours after his arrest, given the same or substantially the same account of events which he gave in evidence. In my view, the second statement should have been admitted.

Application of s. 613(1)(b)(iii) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

28. The Crown argues that even though the Court might find errors on the part of the trial judge, it should apply the proviso in s. 613(1)(b)(iii) of the Criminal Code and dismiss the appeals. To do so, the Court would have to reach the conclusion that, while there had been a wrong decision on a question or questions of law, no substantial wrong or miscarriage of justice has occurred. In the Court of Appeal, Craig J.A. considered that despite the error in charging the jury on s. 21(2) of the Criminal Code, the case was an appropriate one for the application of the proviso. Seaton J.A. in his dissent expressed the view that it should not apply. He said, at p. 542:

The failure to explain the guilty plea on the part of the witness Dumoulin is aggravated by the charge under s. 21(2). In the end the jury could find that Ochs and Simpson conspired with Dumoulin and L'Ortye and that they formed a common intention to kill Brousseau. The charge here was not conspiracy, but with the direction under s. 21(2) it might well have been. The only difference is that these appellants are convicted of murder and the witness only of conspiracy.

When taken with the refusal to admit Simpson's statement, I am unable to say that s. 613(1)(b)(iii) ought to be invoked. Simpson's evidence was as important to Ochs' defence as it was to his own.

29. The authoritative statement of the test to be applied by the Court when considering the application of the proviso in s. 613(1)(b)(iii) of the Criminal Code was made by Cartwright J. (as he then was) in Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739. Speaking for himself and Hall J., he said at p. 744, referring to the then s. 592(1)(b)(iii) and to various authorities referred to in the same case by Spence J.:

A number of authorities which should guide the Court of Appeal in deciding whether, misdirection having been shewn [sic], it can safely be affirmed that no substantial wrong or miscarriage of justice has occurred are quoted in the reasons of my brother Spence. Upon reading these it will be observed that, 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.

Spence J., with whom Ritchie J. agreed, reviewed many authorities on this question and said, at p. 755:

Therefore, this Court must apply the test set out in the aforesaid cases and, to quote again from Brooks v. The King:

The onus is upon the Crown to satisfy the Court that the jury, charged as it should have been, could not, as reasonable men, have done otherwise than find the appellant guilty.

He added, at p. 756:

I am of the opinion that this Court cannot place itself in the position of a jury and weigh these various pieces of evidence. If there is any possibility that twelve reasonable men, properly charged, would have a reasonable doubt as to the guilt of the accused, then this Court should not apply the provisions of s. 592(1)(b)(iii) to affirm a conviction.

30. The formulation of the test by Cartwright J. has been followed in later cases and has been accepted in later decisions of this Court: see Mahoney v. The Queen, [1982] l S.C.R. 834, at p. 845, in which case reference was also made to the words of Kerwin J. in Schmidt v. The King, 1945 CanLII 4 (SCC), [1945] S.C.R. 438, at p. 440:

The meaning of these words has been considered in this Court in several cases, one of which is Gouin v. The King, 1926 CanLII 44 (SCC), [1926] S.C.R. 539, from all of which it is clear that the onus rests on the Crown to satisfy the Court that the verdict would necessarily have been the same if the charge had been correct or if no evidence had been improperly admitted. The principles therein set forth do not differ from the rules set forth in a recent decision of the House of Lords in Stirland v. Director of Public Prosecutions, [1944] A.C. 315, i.e., that the proviso that the Court of Appeal may dismiss the appeal

if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.

Cartwright J.'s test has been approved more recently in this Court in Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311, where Lamer J., speaking for the Court, dealt with the matter at pp. 328‑30. Reference may be made as well to Miller and Cockriell, supra, at pp. 456‑57. The foregoing authorities clearly set out the test to be applied. The whole of the evidence must be considered and, where the Court cannot conclude that in the absence of the errors shown to have been made the result would necessarily have been the same, the proviso cannot be applied.

31. Turning to this case, as to the error in respect of s. 21(2) of the Criminal Code it is not possible, in my view, to conclude that the charge under that subsection could have affected the result. The jury was properly charged under s. 21(1) and there was an abundance of evidence before the jury upon which it could find that both Ochs and Simpson aided in the commission of the crime and, as well, that they formed a common intent to carry it out. The directions given regarding s. 21(2) could not have distracted the jury from the true purpose of its inquiry. As to the omission of the warning concerning the use of the evidence of the conviction for conspiracy of Dumoulin, I have already indicated that I would not consider it reversible error. The defence in this case, it must be remembered, was not a denial of the killing nor was it a denial of the planning and preparation for that event. It was that the earlier incriminating discussions were mere drunk talk and that no intent to carry out the killing of Dumoulin existed. The defence of drunkenness was raised as well and on that point a charge was given to which no objection was taken in this Court. The jury rejected that defence. There was therefore evidence before the jury, independent of the evidence of Dumoulin's conviction, which standing alone, in my view, made the conviction of Ochs and Simpson inevitable. As to the refusal of the trial judge to admit the second or 11:15 a.m. statement by Simpson, it could not in my view have affected the result. As earlier pointed out, its essence was before the jury through the evidence of Dumoulin and Ochs and, as well, the pattern of joint action involving Dumoulin, Ochs, L'Ortye and Simpson was clearly established before the jury and it would dispel any suggestion that Simpson had recently invented a defence.

32. Error was made at trial and, therefore, if the appeal is to be dismissed, it must be on the basis of the application of the proviso in s. 613(1)(b)(iii) of the Criminal Code. In accordance with the test referred to above, I would conclude upon a consideration of all the evidence that despite the errors the result would necessarily have been the same in respect of both appellants. The only conclusion the jury could have reached on the evidence was that Simpson and Ochs aided and abetted L'Ortye in the killing. The case in some respects parallels that of Miller and Cockriell, supra, and the words of Robertson J.A., speaking for the British Columbia Court of Appeal, at p. 458, are applicable here:

Each accused said that he never intended anything by what he said about shooting a policeman: it was just drunk talk. This could raise no reasonable doubt, for their deeds belie their statements: they set out with a rifle, they hunted until they found a policeman and, when they did, he was shot. Their conduct was entirely consistent with their expressed intention and fortifies their expression of it; it is equally inconsistent with an absence of intention.

33. I would accordingly apply the proviso and dismiss the appeals.

Appeals dismissed.

Solicitors for the appellant Simpson: Clarke, Covell, Banks, Vancouver.

Solicitors for the appellant Ochs: Orris, La Liberté, Burns, Vancouver.

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