R. v. Hayes, [1989] 1 S.C.R. 44

William Clyde Hubert Hayes Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. hayes

File No.: 19980.

1988: October 6; 1989: January 19.

Present: Dickson C.J. and McIntyre, Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.

on appeal from the supreme court of nova scotia, appeal division

Criminal law -- Miscarriage of justice -- Conviction appealed ‑‑ Transcript of evidence -- Gaps in transcript of trial -- One gap involving portion of charge to jury -- Whether or not want of complete transcript amounting to miscarriage of justice warranting new trial -- Criminal Code, R.S.C. 1970, c. C-34, ss. 609(2), 613(1)(a)(iii).

Criminal law -- Evidence -- Accomplices -- Uncorroborated evidence of accomplice -- Charge to jury -- Circumstances in which trial judge need explicitly warn a jury of the dangers of accepting such evidence.

Appellant and another were charged with first degree murder and tried separately. The dispute primarily concerned the respective roles of appellant and the co-accused: each accused the other of robbing and fatally stabbing the victim. Appellant was convicted of first degree murder and sentenced to life imprisonment with no chance of parole for twenty-five years. The co-accused was convicted of second degree murder and sentenced to life imprisonment with no chance of parole for twenty years.

Appellant appealed his conviction. A malfunction of the transcribing equipment resulted in gaps in the transcription of the proceedings received prior to the appeal hearing. One gap related to the judge's charge to the jury. It was filled by a narrative supplied by the trial judge based on his notes.

Two principal issues were raised in this appeal. The first involves whether the inability to prepare a proper and full transcript of the trial proceedings prior to an appeal comprises a miscarriage of justice warranting a new trial. The second issue addresses the circumstances in which a trial judge need explicitly warn a jury of the dangers of accepting uncorroborated testimony of an accomplice.

Held (McIntyre, Lamer and Sopinka JJ. dissenting): The appeal should be dismissed.

Per Dickson C.J. and Wilson, La Forest and L'Heureux-Dubé JJ.: No miscarriage of justice occurred in the circumstances of this case. The appellant had a just and fair trial before his peers. A new trial need not be ordered for every gap in a transcript. As a general rule, there must be a serious possibility that there was an error in the missing portion of the charge, or that the omission deprived the appellant of a ground of appeal.

The facts of this case do not meet this test. There was no "serious possibility of error" in the missing portion of the charge to the jury. The notes of the trial judge were no doubt accurate, the jury had copies of the Criminal Code provisions, and no objection was made by counsel to the charge.

There is no "fixed and invariable rule" regarding the appropriate charge with respect to the testimony of accomplices. Rather, an approach tailored to the particular case should be adopted instead of assuming that all accomplices are inherently untrustworthy as witnesses. The trial judge here drew the jury's attention to the fact that the co-accused was an accomplice and this warning, combined with the discretion allowed the trial judge with respect to the testimony of an accomplice, was sufficient to dismiss the second ground of appeal. The failure to give a clearer or sharper warning than the one given could not have resulted in a miscarriage of justice.

Per McIntyre, Lamer and Sopinka J. (dissenting): While section 609(2) clearly requires that a record of trial proceedings be kept, not every failure to comply with its reporting requirements will automatically entitle an appellant to a new trial. The effect of the gaps must be considered in relation to any possible prejudice to an appellant's ability to appeal a conviction. As a general rule, a new trial will only be ordered where there is some reason to believe that there may possibly have been an error in the passage of the charge which was missing or that the omission otherwise may have deprived the appellant of a ground of appeal.

The statutory requirements of s. 609(2)(b) were clearly violated here and the summary based in part on the trial judge's notes and provided by him had no curative effect. Appeals based upon allegedly inaccurate charges to the jury often turn on a few specific words, or specific sentences. It is not clear that in delivering his charge the trial judge followed his notes verbatim. The third gap in the transcript involved the charge to the jury which is a central element of a murder trial and dealt with the elements or requirements of murder.

A clear and sharp warning as to the unreliability of the uncorroborated evidence of an accomplice ought to have been given in the special circumstances of this case.

Both the failure to properly charge the jury and the incomplete record of the proceedings by virtue of the gap in the transcript must be considered in assessing if there has been a miscarriage of justice. In the unique and special circumstances of this case, neither of the two grounds individually might have been sufficient to warrant a new trial but cumulatively they created an appearance of a miscarriage of justice.

Cases Cited

By L'Heureux-Dubé J.

Applied: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.

By Sopinka J. (dissenting)

R. v. Horvat (1977), 1977 CanLII 2023 (BC CA), 34 C.C.C. (2d) 73, leave to appeal refused [1977] 1 S.C.R. viii; Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C-34, ss. 205, 212, 213, 302, 609(2), 613(1)(a)(iii), (b)(iii).

APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division (1985), 1985 CanLII 5933 (NS CA), 67 N.S.R. (2d) 234, dismissing an appeal from conviction by Burchell J. sitting with jury. Appeal dismissed, McIntyre, Lamer and Sopinka JJ. dissenting.

Craig M. Garson, for the appellant.

Kenneth W. F. Fiske, for the respondent.

The judgment of Dickson C.J. and Wilson, La Forest and L'Heureux-Dubé JJ. was delivered by

L'HEUREUX-DUBÉ J. -- On the evening of Wednesday, October 5, 1983 an 80-year-old gentleman, sitting in his car outside the Glace Bay public library, was approached by the appellant Hayes and Elmer King. The two youths asked him to drive them to a bootlegger. When they assured him he could not get into trouble for doing so, he consented. It cost him his life. At knife point, he was ordered to drive onto a deserted gravel road where he was robbed, stabbed repeatedly, and left to die.

Both the appellant Hayes and King were arrested and charged with first degree murder. They were tried in separate trials. At Hayes' trial, King testified that it was Hayes who fatally stabbed the deceased. Hayes did not testify at the subsequent trial of King. King was convicted of second degree murder. The jury in the Hayes trial took no time to deliver a guilty verdict. Hayes was convicted of first degree murder and sentenced to life imprisonment with no eligibility for parole for twenty-five years.

The appellant appealed the conviction to the Appeal Division of the Nova Scotia Supreme Court, (1986), 1985 CanLII 5933 (NS CA), 67 N.S.R. (2d) 234. The appeal was dismissed by a unanimous bench of five judges.

The issue in this case is not murder: there was a murder. It is not premeditation: there was premeditation. The issues raised in this case concern essentially the charge of the trial judge to the jury and the problem of missing portions of the trial transcript.

The two questions to be dealt with by this Court are set out in the factum of the respondent as follows:

1. Did the Appeal Division of the Supreme Court of Nova Scotia err in law in holding that the inability of the Attorney General of Nova Scotia to prepare a proper transcript of the proceedings at trial did not result in a miscarriage of justice?

2. Did the Appeal Division of the Supreme Court of Nova Scotia err in law in holding that the curative provisions of s. 613(1)(b)(iii) of the Criminal Code could be used where at trial the learned trial Judge failed to give the Jury a clear and sharp warning to attract their attention to the risks of adopting the evidence of the co-accused on a trial for first degree murder?

I am of the view that Macdonald J.A. of the Nova Scotia Supreme Court, Appeal Division, correctly disposed of the appeal.

In my opinion, no miscarriage of justice occurred in the circumstances of this case. The appellant had a just and fair trial before his peers. The jury, without need for lengthy deliberation, came to the conclusion that he was guilty of first degree murder.

The first two gaps in the transcript could not conceivably have prejudiced the appellant. They consisted essentially of conversations between the trial judge and counsel.

It is the third gap which is problematic. A portion of Burchell J.'s charge to the jury is missing from the transcript. Macdonald J.A. describes the gap as follows at p. 237 of his reasons:

The last omission relates to the instructions given the jury by Mr. Justice Burchell on homicide, murder and robbery. The gap in the transcript was filled by a narrative supplied by the trial judge based on what his notes indicated was his charge on these matters. He subsequently certified that his charge to the jury was accurately set forth in the transcript of the proceedings as contained in the case on appeal.

A new trial need not be ordered for every gap in a transcript. As a general rule, there must be a serious possibility that there was an error in the missing portion of the transcript, or that the omission deprived the appellant of a ground of appeal.

In my view, the facts of this case do not meet this test. I see no "serious possibility of error" in the missing portion of the charge to the jury. I have no doubt that the notes of Burchell J. are an accurate account of the charge he gave to the jury. As Macdonald J.A. points out, the jury was provided with copies of the relevant Criminal Code sections. Further, immediately after Burchell J.'s charge on the relevant law, and before he proceeded with the portion of the charge dealing with the evidence, Burchell J. recessed and asked counsel if they had any objections. It is important to note, as did Macdonald J.A., that counsel for the appellant at trial did not object to the charge with respect to the particular Criminal Code sections.

The second issue raised in this appeal has to do with the trial judge's charge to the jury relating to accomplice evidence. I would like to emphasize that this case illustrates the dangers and difficulties which may arise when co-accuseds are not jointly tried.

The decision of this Court in Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, stands for the proposition that there was no "fixed and invariable rule" regarding the appropriate charge with respect to the testimony of accomplices. Instead of assuming that all accomplices are inherently untrustworthy as witnesses, Dickson J. (as he then was) advocated an approach tailored to the particular case. He wrote at p. 823:

Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, on the other hand, he believes the witness to be trustworthy, then, regardless of whether the witness is technically an `accomplice' no warning is necessary.

In the present case, the trial judge drew the jury's attention to the fact that King was an accomplice to the accused Hayes. He stated:

Now, I am sure your common sense and experience will tell you that it often happens when two persons are involved in some criminal activity that one will try to place the blame on the other to shield himself, sometimes for reasons of spite, sometimes for other reasons. There is also the possibility that where two persons are involved in a criminal activity, each, either at the same time or in turn, may attempt to place the blame on the other. These are possibilities that I am sure are obvious to you but you must have them in mind as you weigh the testimony that has been placed before you in your effort to arrive at a determination as to which witnesses are to believed and to what extent they are to be believed.

In my view, this warning, combined with the discretion allowed by Vetrovec, supra, are sufficient to dismiss the second ground of appeal. On the facts of the present case I cannot see how the failure to give a clearer or sharper warning than the one given has resulted in a miscarriage of justice.

In the result, I do not find that the two grounds of appeal, either separately or in combination, give rise to the appearance of a failure of justice. I would accordingly dismiss the appeal.

The reasons of McIntyre, Lamer and Sopinka JJ. were delivered by

SOPINKA J. (dissenting) -- Two principal issues were raised in this appeal. The first involves whether the inability to prepare a proper and full transcript of the trial proceedings prior to an appeal comprises a miscarriage of justice warranting a new trial. The second issue addresses the circumstances in which a trial judge need explicitly warn a jury of the dangers of accepting uncorroborated testimony of an accomplice.

Facts

Hayes was convicted of first degree murder in March 1984 before Burchell J. of the Nova Scotia Supreme Court and a jury. The appellant was sentenced to life imprisonment with no eligibility for parole for twenty-five years.

The circumstances giving rise to this charge and conviction concern the murder of Edmund Foster. On the evening of October 5, 1983, the deceased, Foster, agreed to drive the appellant and Elmer King to a bootlegger. After the three drove outside the town of Glace Bay, a knife was held to Foster and he was robbed of his wallet. King then drove the car off the main highway to a rather deserted location where Foster was repeatedly stabbed with a knife. Foster died at the scene as a result of these wounds. The appellant and King then drove the deceased's car back into Glace Bay where it was set on fire.

Both the appellant and King were subsequently arrested and charged with first degree murder relating to the death of Foster. At Hayes' trial, King testified that the robbery and murder were both carried out by Hayes. In turn, Hayes took the stand and claimed that it was King who robbed and fatally stabbed Foster. The dispute primarily concerned the respective roles of Hayes and King.

Following the conviction of the appellant, King was tried for murder relating to the same incident. The jury returned a verdict of guilt on second degree murder. King was sentenced to life imprisonment with no chance of parole for twenty years.

The appellant launched an appeal of his conviction before the Appeal Division of the Nova Scotia Supreme Court (R. v. Hayes (1985), 1985 CanLII 5933 (NS CA), 67 N.S.R. (2d) 234). However, when the transcripts of the trial were received prior to the appeal hearing, it was evident that there were gaps in the transcription of the proceedings. Apparently the gaps resulted from a malfunction of the transcribing equipment.

Incomplete Transcript

The first ground of appeal before this Court is that the Appeal Division of the Nova Scotia Supreme Court erred in holding that the inability of the Attorney-General of Nova Scotia to provide a full transcript of the appellant's trial did not comprise a miscarriage of justice. Macdonald J.A. of the N.S.S.C.A.D. described the three gaps in the transcript as follows:

1. A discussion between counsel and Mr. Justice Burchell after the close of the second day of the trial.

2. A discussion between counsel and Mr. Justice Burchell with respect to the cross examination of the appellant on his juvenile record.

3. A portion of Mr. Justice Burchell's charge to the jury on which he gave his initial instructions on Code s. 205 (homicide), s. 212 (murder), s. 213 (constructive murder) and s. 302 (robbery).

The Criminal Code requires that a transcript of the proceedings at trial be prepared. Section 609(2) provides:

609. . . .

(2) A copy or transcript of

(a) the evidence taken at trial,

(b) the charge to the jury, if any,

(c) the reasons for judgment, if any, and

(d) the addresses of the prosecutor and the accused or counsel for the accused by way of summing up, if

(i) a ground for the appeal is based upon either of the addresses, or

(ii) the appeal is pursuant to section 604,

shall be furnished to the court of appeal, except in so far as it is dispensed with by order of a judge of that court.

Clearly s. 609(2) establishes a mandatory requirement that a record of trial proceedings be kept. The breach of this provision was recognized by Macdonald J.A. in the court below. However the Appeal Division of the Nova Scotia Supreme Court was not persuaded that the non-transcription of the three portions of the appellant's trial amounted to a miscarriage of justice.

Redress for non-compliance with s. 609(2) is provided for in s. 613(1)(a)(iii) of the Criminal Code:

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

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

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

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

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

(b) may dismiss the appeal where

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment.

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), or

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;

Macdonald J.A. concluded that the first two gaps in the transcript did not result in a miscarriage of justice. In my opinion, this conclusion is correct as it is inconceivable that these gaps could have prejudiced the appellant's appeal rights to any meaningful degree.

The third gap in the transcript is somewhat more problematic. The charge to the jury is obviously a central element of a murder trial. The malfunctioning of the recording equipment resulted in the absence of a portion of the charge to the jury by Burchell J. The gap included a review of ss. 205 and 212 relating to the requirements of murder. As well, the missing portion of the transcript included the charge relating to s. 302 (robbery) which is one of the underlying offences to s. 213 (constructive murder). It would appear that the full charge relating to s. 213 itself was properly transcribed.

Evidently, Burchell J. was notified of the gaps in the transcript as the following proviso appears at the point of the transcript where the tape was blank:

(Due to the fact that a portion of the tape is blank Justice Burchell has perused his notes and has made the following comments regarding the missing portion.)

Macdonald J.A. appeared to rely in part upon this narrative provided by the trial judge in holding that there was no miscarriage of justice. As well, Macdonald J.A. held, at p. 237:

On the facts of this case there is no doubt that Mr. Foster was robbed and murdered. The only issues were whether the appellant was involved in either or both of these crimes and, if so, whether his conduct made him guilty of murder either in the first or second degree.

I agree with Macdonald J.A. that not every failure to comply with the reporting requirements of s. 609(2) will automatically entitle an appellant to a new trial. The British Columbia Court of Appeal expressed such a view in R. v. Horvat (1977), 1977 CanLII 2023 (BC CA), 34 C.C.C. (2d) 73. (Leave to appeal to the Supreme Court of Canada was refused May 16, 1977, [1977] 1 S.C.R. viii).

In R. v. Horvat a transcript of the testimony of several witnesses was unavailable. Robertson J.A. speaking for the court held that a gap did not necessarily result in a miscarriage of justice. In that case, the trial judge had made available his own resumés of the missing testimony. Robertson J.A. then considered each witness whose testimony was not transcribed in an effort to determine if the failure to provide a full record of the trial may have resulted in a miscarriage of justice. Based on a detailed analysis of the potential testimony that each of the witnesses could have given, the B.C. Court of Appeal concluded that the absence of a complete transcript did not prejudice Horvat's appeal rights.

I agree that the correct approach is to consider the effect of the gaps in relation to any possible prejudice to an appellant's ability to appeal a conviction. The central role which the charge to the jury assumes in an appeal of a jury's verdict must be considered. However, not every gap in the transcript of a charge will justify granting a new trial. As a general rule, a new trial will only be ordered where there is some reason to believe that there may possibly have been an error in the passage of the charge which was missing or that the omission otherwise may have deprived the appellant of a ground of appeal.

While a summary or narrative provided by a trial judge may in certain situations negate any possible miscarriage of justice, I do not believe that the comments provided by the trial judge have such a curative effect in this case. Appeals based upon allegedly inaccurate charges to the jury often turn on a few specific words, or specific sentences. Although the narrative here was based on what was said to the jury, it does not purport to be an exact transcript of the charge. The summary provided by Burchell J. was based in part on notes prepared prior to the delivery of his charge to the jury and it is by no means clear that he followed them verbatim.

The appellant has been denied the opportunity to examine the instructions to the jury, greatly restricting his ability to determine if an error was made. In general, it is more difficult to conclude that no miscarriage of justice occurred where the incomplete transcript omits important passages from the charge to the jury.

The Appeal Division of the Nova Scotia Supreme Court stated that the only issue was whether the appellant was involved in either or both of the robbery and murder. Admittedly there is no doubt that Foster was murdered. Both the appellant and King testified that the other had alone committed the stabbing.

I recognize that this makes the charge to the jury relating to ss. 205, 212 and 302 less relevant than in other situations. However, the fact that the central issue was which of the two men charged with the murder was telling the truth does not exempt the Crown from the necessity of proving all the requisite elements of murder. The trial judge is still required to charge the jury as to the elements of the offence and that they must be demonstrated beyond a reasonable doubt.

Clearly, there was a violation of the statutory requirements of s. 609(2)(b). In the circumstances of this case it is appropriate to consider the second ground of appeal before determining whether a miscarriage of justice occurred and a new trial should be ordered.

The Evidence of an Accomplice

The second issue in this appeal involves the question of whether or not the trial judge was obliged to caution the jury of the dangers of accepting the evidence of King. The appellant argues that the jury should have been given a clear and sharp warning to attract their attention to the risks of adopting the evidence of a co-accused such as King.

In Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, this Court put an end to the fixed and inflexible rule which made it mandatory that a warning be given to the jury with respect to the evidence of any accomplice.

Dickson J. (as he then was) recognized that the underlying concern had been that the evidence of some witnesses need be approached with caution where the witness's trustworthiness was in question. It had been argued that an accomplice could not be trusted since he would want to suggest his innocence or minor participation in the crime by transferring the blame to others.

At page 823, Dickson J. held:

None of these arguments can justify a fixed and invariable rule regarding all accomplices. All that can be established is that the testimony of some accomplices may be untrustworthy. But this can be said of many other categories of witnesses. There is nothing inherent in the evidence of an accomplice which automatically renders him untrustworthy . . . . Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness. If, in his judgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly.

Dickson J., however, added the following admonition at p. 831:

It does not, however, always follow that the presiding justice may always simply turn the jury loose upon the evidence without any assisting analysis as to whether or not a prudent finder of fact can find confirmation somewhere in the mass of evidence of the evidence of a witness. Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula, or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness. [Emphasis added.]

In the special circumstances of this case I am of the opinion that such a warning ought to have been given. The testimony of King was clearly a key element of the case against the appellant. The verdict of first degree murder indicates that the jury accepted at least part of King's testimony as to Hayes' involvement in the robbery and murder.

As well, King was implicated by Hayes in the killing and, indeed, King was also facing a charge of first degree murder. The risk of King's untrustworthiness coupled with the pivotal role of his testimony make a warning particularly appropriate in this case. If the clear and sharp warning is ever required to be given I can think of no clearer case than this one.

Admittedly, the jury was aware that King was also facing a murder charge relating to the death of Foster. As well, the trial judge in the course of his charge to the jury noted that often when two persons are involved in a criminal activity they will attempt to place the blame on the other. However, in my opinion these remarks about the possibility that persons in the position of the appellant and King may try to shield themselves from blame does not constitute a clear and sharp warning about the dangers of acting upon the evidence of King. Although this Court will generally not interfere with the exercise of the trial judge's discretion in warning about the untrustworthiness of accomplices, failure to do so may amount to a miscarriage of justice in some circumstances.

The Appeal Division of the Nova Scotia Supreme Court held that, even if there were a failure to deliver a clear and sharp warning to the jury relating to King's evidence, the curative provision, s. 613(1)(b)(iii), of the Code could be invoked. In my opinion, following this Court's decision in Vetrovec, supra, I am not prepared to say that in any given case a warning is required as a rule of law and that failure to provide such a warning attracts the provisions of s. 613(1)(a)(iii). Such failure may, however, in some cases amount to a miscarriage of justice.

In assessing whether or not there has been a miscarriage of justice both the failure to properly charge the jury and the incomplete record of the proceedings by virtue of the gap in the transcript must be considered. In the unique and special circumstances of this case, while neither of the two grounds individually might have been sufficient to warrant a new trial, cumulatively they create an appearance of a failure of justice.

Accordingly, applying s. 613(1)(a)(iii), I would allow the appeal and direct a new trial.

Appeal dismissed, McINTYRE, LAMER and SOPINKA JJ. dissenting.

Solicitors for the appellant: Scaravelli & Garson, Halifax.

Solicitor for the respondent: The Department of the Attorney General, Halifax.