R. v. Monteleone, (1987) 78 N.R. 377 (SCC)

• Judge: Dickson, C.J.C., Estey, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 31, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1987), 78 N.R. 377 (SCC);[1987] SCJ No 52 (QL);23 OAC 241;35 CCC (3d) 193;61 OR (2d) 654;41 DLR (4th) 746;1987 CanLII 16 (SCC);59 CR (3d) 97;78 NR 377;[1987] 2 SCR 154

R. v. Monteleone (1987), 78 N.R. 377 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Antonio Monteleone v. Her Majesty The Queen

(No. 17170)

Indexed As: R. v. Monteleone

Supreme Court of Canada

Dickson, C.J.C., Estey, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ.

September 17, 1987.

Summary:

Monteleone was the proprietor of a mens' clothing store. The store was located on the ground floor of a three storey building. The building was destroyed by a fire which started in the basement of Monteleone's portion of the building. Monteleone was charged with arson. At the close of the Crown's case and before Monteleone had elected whether to call evidence, the trial judge on a defence motion, directed a verdict of acquittal. With some reluctance, the jury acquitted. The Crown appealed.

The Ontario Court of Appeal, in a decision reported at paragraphs 18 to 35 below, allowed the appeal and ordered a new trial. The accused appealed.

The Supreme Court of Canada dismissed the appeal and affirmed the order for a new trial. The court affirmed the test for a directed verdict as set out in the United States of America v. Shephard, 9 N.R. 215, (i.e. there should be a directed verdict only where there is no evidence upon which a reasonable jury properly instructed could convict). The court stated that in this case there should have been no directed verdict because there was evidence before the trial judge which met the test in Shephard.

Criminal Law - Topic 300

Circumstantial evidence - General - The accused was charged with arson - He argued for a directed verdict of acquittal on the ground that there was no evidence as to the nature of the fire and therefore no evidence of the commission of a crime - The Supreme Court of Canada held that there should be no directed verdict and agreed that the incendiary origin of the fire could be inferred from other inculpatory circumstances which could link the accused to the fire - See paragraphs 12, 13.

Criminal Law - Topic 2290

Arson - Evidence and proof - Circumstantial evidence - [See Criminal Law - Topic 300 above].

Criminal Law - Topic 4440

Procedure - Verdicts - Directed verdicts - Arson - [See Criminal Law - Topic 300 above].

Criminal Law - Topic 4440

Procedure - Verdicts - Directed verdicts - General - The Supreme Court of Canada affirmed the test for a directed verdict as set out in United States of America v. Shephard, 9 N.R. 215 (i.e. a judge should not direct a verdict of acquittal where there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty) - The court stated also that "the Shephard test for the giving of a directed verdict applies to a case resting solely on circumstantial evidence as well as one based on direct evidence. The question whether circumstantial evidence meets the requirements of the so- called rule in Hodge's case is for the jury to determine" - See paragraph 8.

Criminal Law - Topic 4440

Procedure - Verdicts - Directed verdicts - The Supreme Court of Canada stated that "where there is before the court any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury" - See paragraph 8.

Criminal Law - Topic 4440

Procedure - Verdicts - Directed verdicts - Arson - The accused was charged with arson and obtained a directed verdict of acquittal - The Supreme Court of Canada held that there should have been no directed verdict where there was some evidence to go to the jury (e.g. (1) a statement given to police by the accused which was contradicted by other witnesses, (2) where there was evidence of opportunity and (3) where there was evidence of motive) - See paragraphs 14 to 17.

Evidence - Topic 305

Circumstantial evidence - Rule in Hodge's case - General - [See second Criminal Law - Topic 4440 above].

Cases Noticed:

R. v. Comba, [1938] S.C.R. 396, refd to. [paras. 5, 8].

R. v. Kavanagh (1972), 8 C.C.C.(2d) 296, refd to. [para. 5].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 30 C.C.C.(2d) 424; 70 D.L.R.(3d) 136; 34 C.R.N.S. 207, appld. [para. 8 et seq.].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1, refd to. [para. 8].

Hodge's Case (1838), 2 Lewis C.C. 227; 168 E.R. 1136, refd to. [paras. 8, 26].

R. v. Girvin (1911), 3 Alta. L.R. 387, affd. 45 S.C.R. 167, consd. [paras. 13, 34].

R. v. Paul, [1977] 1 S.C.R. 181, 4 N.R. 435, refd to. [para.13].

R. v. Burton (1854), Dears 282; 169 E.R. 728, refd to. [para. 13].

R. v. Syms (1979), 47 C.C.C.(2d) 114, refd to. [para. 15].

R. v. McIver, [1965] 2 O.R. 475; [1965] 4 C.C.C. 182; 45 C.R. 401; affd. [1966] S.C.R. 254; [1966] 2 C.C.C. 289; 48 C.R. 4, refd to. [para. 26].

R. v. Knox, [1968] 2 C.C.C. 348; 62 W.W.R.(N.S.) 8, consd. [para. 29].

R. v. Burdick (1975), 27 C.C.C.(2d) 497; 32 C.R.N.S. 163, refd to. [para. 30].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 183; 74 D.L.R.(3d) 731, refd to. [para. 32].

Authors and Works Noticed:

Cross, Sir Rupert, Treatise on Evidence (5th Ed. 1979), p. 56 [para. 13].

McWilliams, Peter K., Canadian Criminal Evidence (2nd Ed. 1984), p. 541 [para. 13].

Wills, William, An Essay on the Principles of Circumstantial Evidence (6h Ed. 1912), p. 326 [para. 13].

Counsel:

Edward L. Greenspan, Q.C., for the appellant;

Douglas C. Hunt, Q.C., for the respondent.

Solicitors of Record:

Greenspan, Rosenberg, Toronto, for the appellant;

The Attorney General for Ontario, Toronto, for the respondent.

This appeal was heard on October 31, 1986, before Dickson, C.J.C., Estey, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ.A., of the Supreme Court of Canada. The following decision of the Supreme Court of Canada was rendered on September 17, 1987, by McIntyre, J.: