McFall v. The Queen, [1980] 1 S.C.R. 321 (1979)

Supreme Court of Canada

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McFall v. The Queen, [1980] 1 S.C.R. 321 (1979)

Supreme Court of Canada

McFall v. The Queen, [1980] 1 S.C.R. 321

Date: 1979-06-28

Allwyn George McFall Appellant;

and

Her Majesty The Queen Respondent.

1978: December 5, 6; 1979: June 28.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Criminal law-Three persons convicted on charge of murder-Joint trial-Errors by trial judge with respect to use of extrajudicial statements of accused-Overwhelming evidence implicating appellant-Application of provisions of Criminal Code, s. 613(1)(b)(iii).

The appellant was one of three persons charged and convicted of the non-capital murder of David Perry in the City of Winnipeg after a trial by judge and jury and all of whom were thereupon sentenced to life imprisonment. The conviction was confirmed by a majority of the Manitoba Court of Appeal; O'Sullivan J.A. dissenting would have ordered new and separate trials. The appellant then appealed to this Court pursuant to s. 618(1)(a) of the Criminal Code on the basis of a dissent in the Court of Appeal on a question of law.

The certificate of the Court of Appeal set out 12 grounds of dissent, the first three of which were as follows: "1. The learned trial judge erred in inviting the jury to compare and contrast the confessions of the appellant with the confessions of his co-accused, to test the validity of the confessions of the appellant. 2. The learned trial judge erred in inviting the jury to consider the statements of the appellant's co-accused, which were inadmissible as against the appellant, in considering the credibility of the appellant. 3. The learned trial judge erred in permitting the appellant to be asked, during his cross-examination, to comment on the veracity of his co-accused in connection with their confessions and to comment on the veracity of other witnesses."

The majority reasons in the Court of Appeal came to the same conclusion as the dissent with respect to the first three grounds of dissent but applied s. 613(1)(b)(iii) of the Code and dismissed the appeal.

Held (Laskin C.J., Spence and Estey JJ. dissenting): The appeal should be dismissed.

Per Martland, Ritchie, Pigeon, Dickson, Beetz and Pratte JJ.: Having regard to the overwhelming evidence implicating the appellant in the murder of which he was convicted, the Court of Appeal was satisfied that this was a case in which, in spite of the errors of the trial judge referred to in the judgments below, there was no "substantial wrong or miscarriage of justice" and the provisions of s. 613(1)(b)(iii)...

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