Judgments of the Supreme Court of Canada

Supreme Court of Canada

Emkeit v. R., [1974] S.C.R. 133

Date: 1972-01-25

Ronald Lambert Patrick Emkeit Appellant;

and

Her Majesty The Queen Respondent.

1971: November 12; 1972: January 25.

Present: Abbott, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Criminal Law—Non-capital murder—Trial—Crown counsel’s conduct—Inadmissible and inflammatory poem read by Crown counsel in presence of jury—Refusal of trial judge to discharge jury.

The appellant was convicted of a non capital murder which occurred in the course of a violent encounter between two motorcycle gangs. It was alleged that the appellant struck the victim on the side of the head with a metal logging chain. The appellant gave evidence and towards the end of his cross-examination, Crown counsel read to the jury an inadmissible and inflammatory poem which depicted the gang of which the appellant was a member as being motivated by violence and contempt of the law. The trial judge refused to declare a mistrial and gave the jury express instructions that the poem was not evidence and should not influence them. The Court of appeal affirmed the conviction. The appellant was granted leave to appeal to this Court on the question as to whether the trial judge should have discharged the jury.

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

Per Abbott, Judson, Ritchie and Pigeon JJ: The administration of justice in our courts would be greatly hampered if it were not recognized that a trial judge has a wide discretion as to the manner in which a trial is to be conducted, and it has long been accepted that a trial judge’s ruling on the question of whether or not to discharge the jury is one which a Court of appeal should approach with great caution. There was nothing in the poem to advocate the kind of murderous assault to which the appellant himself admitted in his direct examination. It could not have prejudiced the jury any more than the evidence of the appellant himself. The clear instructions in the trial judge’s charge served effectively to erase it from the minds of the jury. In any event, there was no substantial wrong or miscarriage of justice.

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Per Hall, Spence and Laskin JJ., dissenting: On the facts of this case it would appear that the appellant was seriously prejudiced in his trial. The not very careful warning issued by the trial judge could not possibly have allayed the very serious prejudice caused by the incomprehensible conduct of the Crown counsel in putting this so-called poem to the accused in the presence of the jury. It could not be said that the jury, as reasonable men, would have done otherwise than find the appellant guilty.

APPEAL from a judgment of the Supreme Court of Alberta[1], Appellate Division, affirming the conviction of the appellant for non-capital murder. Appeal dismissed, Hall, Spence and Laskin JJ. dissenting.

L.A.L. Matt, for the appellant.

E.P. Adolphe, Q.C., for the respondent.

The judgment of Abbott, Judson, Ritchie and Pigeon JJ. was delivered by

RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Appellate Division of the Supreme Court of Alberta, dismissing the appellant’s appeal from his conviction for the non-capital murder of Ronald George Hartley whose death occurred as the result of injuries which he received when the appellant struck him on the side of the head with a metal logging chain in the course of a violent encounter between two motorcycle gangs composed of youths living in and around the City of Calgary. One of these gangs was referred to as the “Outcasts” and the other, of which all but two of the accused were members, carried the name of the “Grim Reapers”.

The appellant, together with twelve other young men, was convicted at a trial before Primrose. J. sitting with a jury, on a charge

…that they, at or near Calgary, in the Judicial District of Calgary, Alberta, on or about the 7th day of March, A.D. 1970, did unlawfully murder Ronald George Hartley in that each and everyone of the

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accused formed an intention in common to carry out the unlawful purpose of assaulting persons with offensive weapons and to assist each other therein and that each of them knew or ought to have known that the commission of the offence of non-capital murder herein alleged against them would be a probable consequence of the carrying out of the common purpose and did thereby commit non-capital murder, contrary to the Criminal Code.

All of the accused appealed to the Appellate Division and by a unanimous judgment of that Court one of them was acquitted and a new trial was directed in respect of all the others except the present appellant whose conviction was affirmed.

The circumstances surrounding the attack on Hartley were that the two gangs had agreed to meet at a place called “Little Rock” about 15 miles southeast of Calgary at about 8 o’clock on the 7th of March 1970. There had been bad blood between the two groups and it appears that at least some of those concerned had hoped that the meeting might result in sorting out their differences. Some of the “Grim Reapers” came to the meeting armed with bull whips and logging chains, whereas the “Outcasts” carried no weapons. The “Grim Reapers”, occupying four cars, were the first to arrive at the meeting place and finding no one there started back towards Calgary, but very soon encountered the other group who were occupying a car and a panel truck and were accompanied by six girls including the wife of Ronald Hartley.

As the first of the “Outcasts” arrived, the appellant got out onto the highway and according to the wife of the deceased, he came over to their car and asked who was the president of the “Outcasts”. Upon Ronald Hartley identifying himself, Mrs. Hartley says that he was told to get out and when he did so was struck on the side of his head with a chain wielded by Emkeit whereupon Hartley exclaimed “God man, why?” and Mrs. Hartley appears to have been able to divert Emkeit who by this time was surrounded by members of his gang. The ensuing events are described by the learned Chief Justice in the course of his reasons for judgment

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which he delivered on behalf of the Appellate Division as follows:

Hartley got in his car to drive but couldn’t do so. He stiffened up and was becoming paralysed. He was placed on a mattress in the back of the panel truck and was taken to hospital as quickly as possible. He was obviously seriously hurt and mouth to mouth resuscitation was attempted on the way to hospital. He was breathing during the most of the journey to the hospital but was dead on arrival. Mrs. Hartley described the chain ‘as a logging chain with 1” links’. When Ronald Emkeit hit Hartley he said ‘Everything around the panel truck just exploded and there was fighting and screaming and hollering.’

Of all the accused the appellant alone gave evidence in the course of which he gave his own version of his conduct towards Hartley:

So I walked up and as, you know, I seen the guy was not with us, so, you know, I says, ‘Who are you?’ And he says, ‘I am president of the Outcasts.’ So I said, ‘Outcasts?’ and I kind of snickered, you know, because, well, I have a very bad manner with people. And he looks at me and he says, ‘Who are you?’ I told him, ‘Ron Emkeit,’ and he took a swing at me but he missed, so I pushed him and he went back against the door, and he started to come to me. Now, when I pushed him I turned sideways, and that night, as usual, I had a chrome chain around my neck, it had an iron cross on it. I always wear this thing. So when I pushed him, you know, and as I turned sideways and he was coming back on me, I grabbed the chain and I swung it like that, you know. I hit him with it and he fell back against the car door, and I moved in, I was going to hit him again, and he threw up his hands and he says, ‘No more.’ so I didn’t hit him.

The following excerpt from the cross-examination of Emkeit also appears to me to be relevant:

Q. Did you tell the police that you defended yourself against Hartley or a person at that fight?

A. I didn’t tell them nothing, sir.

Q. You said nothing?

A. Nothing.

Q. Is this the first time you have told anyone about defending yourself?

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A. Yes, sir.

Q. That’s what you are saying, Hartley took a swing at you and you used your chain on him?

A. Yes.

Q. Right around his head?

A. Yes. I only hit him once….

Q. Had he a weapon in his hand?

A. No, sir.

Q. And you knew it?

A. That’s right.

Q. He was alone beside his car?

A. Yes, sir.

Q. And you knew that?

A. Yes, sir.

Q. You were not alone beside him, you had friends with you?

A. That’s right.

Even if it be accepted that Hartley “took a swing” at him, Emkeit’s statement nevertheless amounted to an admission that he beat an unarmed man over the head with a chrome chain and from the other evidence it appears that the man died as a result of this beating. The plea of self defence was put to the jury, but under the circumstances I think that any twelve men properly instructed would necessarily have found that no weight could be attached to it.

Towards the end of his cross-examination of Emkeit, the Crown Prosecutor saw fit to ask the following unfortunate questions:

Q. Yes. I will tell you why I asked you if George was a poet, that’s George Lowe. It seems to me he had a club poem with him. Did you ever hear it?

A. I don’t know.

Q. This is Grim Reapers, I will put it to you.
“A flash of chrome and flying hair,
The Reapers ride with fearless stare,
Citizens scream, daughters beware,
When Reapers ride there is fear in the air.
In the deep of night, with thundering crash,
Deep throated Harleys and Hortons flash.
Out of the night, the wind in their hair,
The Reapers are riding, so citizens take care.

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Bikes are their life, they don’t give a damn,
They scorn the world and laugh at the man.
Riding choppers from dawn till dawn,
Knowing damn well they are Satan’s spawn,
Their creed is lust, their bible is hate,
They fuck the world and hell is their fate.”

Is that your poem?

A. No, sir.

As the learned trial judge observed, none of the eight counsel representing the various accused took any objection to the poem as it was going into evidence, but shortly afterwards a motion was made on behalf of all the accused that the judge should discharge the jury on the ground that the evidence was both inadmissible and inflammatory. The learned trial judge was then faced with being required to exercise his undoubted discretion in determining whether the fact that this evidence had been heard by the jury constituted such a fatal defect in the proceedings as to justify him in declaring a mistrial, after 26 witnesses had testified over a period of 3 days.

The trial judge asked himself the question: “Am I justified in declaring a mistrial because something which is perhaps not relevant at all has gone in on cross-examination?” and having heard argument from counsel he concluded: “I am not going to discharge the jury. Carry on.” This ruling is the subject of the sole question upon which leave to appeal to this Court was granted, namely:

Did the learned trial judge err in refusing the motion of counsel for the appellants to discharge the jury after counsel during the cross-examination of the appellant read the poem ‘Grim Reapers’?

It was conceded in this Court that the so-called poem was inadmissible and this was

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clearly recognized by the trial judge, but the question for him to decide was whether it was so damaging as to require that he order a mistrial or whether, under all the circumstances, it could be cured in the course of his charge to the jury. Having decided to let the trial proceed, the trial judge gave the most express instructions to the jury concerning this evidence saying:

In the course of his cross-examination there was reference made to a poem. Crown counsel read it. Now that may be inflammatory and of a derogative nature. Don’t let it influence you. It is not evidence. It is not a statement of the aims of the Grim Reapers. It is a poem, so what?

The italics are my own.

In my opinion the administration of justice in our courts would be gravely hampered if it were not recognized that a trial judge has a wide discretion as to the manner in which a trial is to be conducted, and it has long been accepted that a trial judge’s ruling on the question of whether or not to discharge the jury is one which a court of appeal should approach with great caution.

This is made clear in the judgment of Rinfret J., as he then was, in Paradis v. The King[2], to which reference was made by the Chief Justice of Alberta in the Court of Appeal. Mr. Justice Rinfret in that case, in referring to a submission that the jury should have been discharged because of the wrongful admission of evidence, said, at page 172:

Objection was taken immediately. A long discussion ensued at the conclusion of which the trial judge ruled that the reference to Paradis should be struck from the deposition. Notwithstanding the learned judge’s ruling, the appellant strongly contends that the reference was so prejudicial to the accused that the jury should have been discharged and the prisoner tried before a fresh jury.

There may be extreme cases where the suggested procedure might be adopted, although we apprehend the question whether such a course ought to be fol-

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lowed is primarily for the trial judge to decide upon the circumstances of the particular case; and a court of appeal will always approach with great caution a question as to the propriety of that decision.

The italics are my own.

It was contended by counsel for the appellant in the present case that the so-called poem depicted the gang of which the appellant was a member as being motivated by violence and contempt of the law and that it might thus predispose the jury to look upon the appellant as one capable of committing the crime of which he was charged and thus give rise to prejudice which might affect the jury’s verdict and could not be erased from their minds notwithstanding the trial judge’s specific direction to disregard it. In this regard it is to be remembered that the only serious defence put forward by the appellant was that the attack was justified by way of self defence because Hartley had taken a swing at the appellant and was coming back at him after having been pushed away. The violent assault was admitted and it is difficult for me to see how the introduction of the poem could have affected the jury in determining whether it was justified by anything suggested in Hartley’s conduct.

Counsel for the appellant cited the cases of Boucher v. The Queen[3]; Regina v. Vallières[4], and Regina v. Armstrong[5] in support of his contention, but in my opinion none of these cases can be said to apply to a trial in which the accused himself has testified that he beat an unarmed man over the head with a chain in such a way as to result in the death of his victim. The Boucher case, in which the evidence was entirely circumstantial, turned in large measure on the impropriety of the opinions expressed by Crown counsel as to the guilt of the accused. In the Vallières case a new trial was granted because the publicly expressed terrorist beliefs of the accused were found to have been presented to the jury in such a manner as to relate them to a

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specific bombing incident resulting in death to which the accused was not directly connected by the evidence. In the Armstrong case evidence had been wrongfully admitted of a statement made by the accused that he had committed the crime, and Mr. Justice Coffin, speaking on behalf of the majority of the Appeal Division of Nova Scotia said:

The words ‘and he said what he had done and how he had confessed and that he had signed a statement’ constituted the ‘blurt’ that was fatal. Again with deference it is my opinion that once these words were sounded—the ‘mischief was done and no warnings of the learned trial Judge could effectively erase them from the minds of the members of the jury.

Nothing of this kind happened in the present case.

In my opinion the so-called poem is descriptive of fearless motorcyclists riding “in the deep of night” in such fashion as to disturb the peace, terrify other citizens and generally display their scorn for the rest of the world, and in the last three lines, in an outburst of bombastic vulgarity, the author claims for these youths the title of “Satan’s spawn” whose creed is lust and whose fate is hell. Revolting though all these sentiments are, there is nothing in that poem to advocate the kind of murderous assault to which the appellant himself admitted in his direct examination, and it seems to me that this admission, given against the background of all the other evidence, would necessarily dominate the minds of the members of the jury, and that nothing in the so-called poem could paint a blacker picture of his conduct than the accused himself described.

I do not think that the learned trial judge erred in refusing the motion of counsel for the appellants to discharge the jury. The poem did not relate to or substantiate the accused’s guilt of the crime with which he was charged and could have no bearing on the issue of self defence, and it could not, in my opinion, have prejudiced the jury any more than the evidence

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of Emkeit himself. Unlike the evidence of the confession in the Armstrong case, supra, I do not think that the poem was evidence which could not be effectively erased from the minds of the jury in considering the guilt or innocence of the accused, and in my opinion the clear instructions in the trial judge’s charge served to fulfill this purpose.

In the case of Pisani v. The Queen[6], which was recently decided in this Court, a new trial was granted because of serious breaches of duty exhibited by Crown counsel in the course of his address to the jury, but in my view, that case can have no bearing on the circumstances here disclosed because, as Mr. Justice Laskin said in the course of the reasons for judgment which he delivered on behalf of the Court: “The trial judge did nothing to erase the effect of Crown counsel’s remarks.”

Like the Chief Justice of Alberta, I am also of opinion that this is, in any event, a case in which the jury’s verdict would necessarily have been the same if the offensive poem had not been admitted in evidence, and this is the test which has been used repeatedly in this Court in applying the provisions contained in s. 592(1)(b)(iii) by concluding that “no substantial wrong or miscarriage of justice has occurred.”

For all the above reasons I would dismiss the appeal.

The judgment of Hall, Spence and Laskin JJ. was delivered by

SPENCE J. (dissenting)—This is an appeal by Emkeit from the decision of the Appellate Division of Alberta[7] confirming his conviction after a trial before Primrose J. and jury upon the

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charge of non-capital murder. By order of this Court made on June 28, 1971, Emkeit was given leave to appeal in respect of the following question of law, namely:

Did the learned trial judge err in refusing the motion of counsel for the appellant to discharge the jury after counsel for the respondent, during his cross-examination of the appellant, read the poem “Grim Reapers”?

I have had the opportunity of reading the reasons for judgment given by my brother Ritchie and I wish to adopt the statement of facts outlined in those reasons adding thereto only reference to such additional facts as are required for my consideration.

Although counsel for the Attorney General of Alberta devoted a considerable portion of his factum to the submission that the introduction of the so-called poem was admissible, during the argument of the appeal in this case and with some considerable reluctance, the said counsel admitted that the production of that alleged evidence was inadmissible and therefore this court need only consider the question of whether the trial judge erred in refusing to discharge the jury after such inadmissible evidence had been before the jury.

In the Appellate Division of Alberta, Smith C.J.A. relied on Paradis v. The King[8], and particularly the statement of Rinfret J., as he then was, at p. 172:

There may be extreme cases where the suggested procedure might be adopted, although we apprehend the question whether such a course ought to be followed is primarily for the trial judge to decide upon the circumstances of the particular case; and a court of appeal will always approach with great caution a question as to the propriety of that decision. In this instance, at all events, there are clearly no adequate grounds for holding that the learned judge ought to have acted otherwise than he did.

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Of course, that statement does reflect the proper position of an appellate court. It has often been repeated and has been described as being the modern practice by Sachs L.J. in Regina v. Weaver[9], where the learned Lord Justice spoke for the Court of Criminal Appeal.

Nevertheless, there have been cases in this court and in the provincial courts of appeal in which the court has come to the conclusion that the admission of inadmissible evidence or such faults as inflammatory addresses to the jury by counsel for the Crown caused such serious prejudice to the accused that the trial should have been stopped immediately and that the trial judge exercised his discretion in error when he failed to assent to an application by the defence that such course be adopted and that therefore the conviction should be quashed and a new trial directed. Some of these cases deal with accidents during examination or cross-examination of a witness where the witness blurts out an answer obviously inadmissible and in such cases the appellate court, particularly when the trial judge has warned the jury as to the inadmissible character of the evidence, has, whenever possible, approved the exercise of the discretion of the trial judge in refusing to terminate the trial. Even, however, in such a case, if the appellate court is of the opinion that the prejudice was a serious one and that it could not be assured that the warning of the trial judge had wiped out that prejudice, it quashed the conviction and directed a new trial.

In Regina v. Armstrong[10], the Appeal Division of the Nova Scotia Supreme Court considered a case where in cross-examination of a Crown witness counsel for the accused, evidently upon a misunderstanding of the evidence given by that Crown witness on a preliminary, put to the witness questions which elicited obviously inadmissible answers. Coffin J.A., at p. 146, said:

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The words “and he said what he had done and how he had confessed and that he had signed a statement” constituted the “blurt” that was fatal. Again with deference it is my opinion that once these words were sounded—the “mischief” was done and no warnings of the learned trial Judge could effectively erase them from the minds of the members of the jury.

And Cooper J.A. said at p. 151:

In my view the words of Mrs. Oickle uttered in the presence of the jury “and he said what he had done and how he had confessed and that he had signed a statement” may well have influenced the jury. If they had not been spoken it cannot be said that the jury would not have come to a different conclusion. With deference it is my opinion that once these words were said, the mischief was done and warnings of the learned trial Judge could not effectively erase them from the minds of the jury. Nor can the fact that defence counsel did not move for dismissal of the jury and a new trial affect the matter—Stirland v. Director of Public Prosecutions, [1944] 2 All E.R. 13—Viscount Simon, L.C., at pp. 18, 19; R. v. Hortopan, [1964] 2 C.C.C. 306, 42 C.R. 191, [1964] 2 O.R. 157—Roach, J.A., at p. 312.

In cases in which the inadmissible material has been placed before the jury by the Crown either in the adducing of evidence or in the Crown’s inflammatory address, I am of the opinion that the appellate court takes a much stricter view and the court would have to be convinced indeed that the fault was a minor one adequately corrected by the trial judge in his charge before it would refuse the relief of a new trial.

In this court, the improper addresses by the Crown counsel have been dealt with particularly in two cases. In Boucher v. The Queen[11], the court was concerned with a case in which the accused was charged with a particularly brutal murder. Counsel for the Crown, first in his address to the jury, stressed that the Crown had

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only proceeded with the charge after a careful investigation and that the Crown officers were satisfied that the crime had been committed by this particular accused, and then ended his address by the words, and I translate only the sense: and if you return a verdict of guilty, for once it almost gives me pleasure to ask that the death penalty be assessed against him. Rand J., at p. 23, used words which have been repeated and which I think set out the view of this court:

It is difficult to reconstruct in mind and feeling the court room scene when a human life is at stake; the tensions, the invisible forces, subtle and unpredictable, the significance that a word may take on, are sensed at best imperfectly. It is not, then, possible to say that this reference to the Crown’s action did not have a persuasive influence on the jury in reaching their verdict. The irregularity touches one of the oldest principles of our law, the rule that protects the subject from the pressures of the executive and has its safeguard in the independence of our courts. It goes to the foundation of the security of the individual under the rule of law.

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

On December 21, 1970, this court gave judgment in the appeal of Bruno Pisani v. The

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Queen[12], which I cite because I believe it is most relevant for the present consideration. There, counsel for the Crown in his address proceeded in effect to give evidence in which he explained the reason why, in his view, the accused had acted in the fashion which the evidence had shown he had acted and did so by referring to the practice of persons accused of like offences. This court, relying on Boucher v. The Queen, supra, unanimously granted a new trial.

The Court of Appeal of Quebec in Regina v. Vallières[13] was concerned with a charge of manslaughter against a person who was a well-known advocate of terrorist tactics. During the trial, the Crown used the writings of the accused person in order to show that he was intimately concerned with all the affairs of an organization with such aims and that he would, therefore, have been among those who took part in a decision to plant a bomb the explosion of which caused the victim’s death. The trial judge told the jury that the fact that the accused was a terrorist did not necessarily mean that he took part in placing the bomb at the factory on the date in question but in his address the Crown counsel quoted from a book containing an appeal to violence and ended his address by stating, “Gentlemen, free the accused and you know what will happen”. The Quebec Court of Appeal, in a unanimous decision, directed a new trial. Hyde J.A. gave the principal judgment and short concurring judgments were given by the other justices on appeal. Brossard J.A. said at pp. 81-82:

[TRANSLATION] In Canada, the fundamental right to a defence is enjoyed by all those persons arrested and charged with offences allegedly committed by them, and this right is based on common law principles

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implanted in the mores of society by a very ancient, profoundly humane, and virile judicial tradition.

However serious may be the offences with which they are charged, whatever nefarious effect these offences may have upon citizens for whom law and respect for the law constitute the fundamental elements upon which protection of individuals and the maintenance of order and peace in society are built, and whatever dangers are created by the brutality and animalistic characteristics of the violence involved in such crimes, those charged with them are, in so far as the judicial authorities are concerned, entitled to the protection afforded by the following great principles of our criminal law: no one can be presumed to be guilty: no one can be convicted of an offence unless his guilt is established beyond all reasonable doubt; in a trial before a jury, no evidence can be presented, and no statement may be made by counsel for the Crown, which might induce a jury to base a conviction upon psychological or passionate grounds which might affect the most objective and just treatment of the accused, in accordance with cold reason; in such a trial, no direction, erroneous in fact or in law, may be given to a jury, if it is seriously likely to affect the latter’s decision with respect to the reasonable doubt, to the benefit of which the accused is entitled.

Essentially it is to ensure the complete respect for these principles that I, like my colleague, Mr. Justice Hyde, and for the reasons given by him, would order a new trial.

And Turgeon J.A. said at p. 83:

[TRANSLATION] I concur with Mr. Justice Hyde, because I cannot convince myself that the jury would necessarily have reached the same verdict,

…

I need not repeat examples of where an appellate court has viewed the fault at trial, whether by the admission of inadmissible evidence or by the inflammatory address of Crown counsel, as causing a breach so serious that a new trial must be directed. I turn to make some reference to the facts in this particular appeal. There is no doubt that Ronald Hartley, the victim, came to his death because the accused struck him across his head violently with a chrome chain which the accused had worn around his neck for over two years regarding it in some peculiar fashion as ornamentation. The defence of the accused

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was that this was an act of self-defence and testified that the act of self-defence was taken after the deceased had first aimed a blow at the accused but missed him. The fatal accident occurred during a fracas between two groups which may be generally described as “motorcycle gangs” and took place during a road-side meeting when the gang of which the accused was a prominent member and which was known as the Grim Reapers were returning from a place where they had attended, they alleged, at the invitation and suggestion of the second group, the Outcasts. The Grim Reapers having attended this place found no one there, turned around, and met the Outcasts driving toward it. The usual senseless fracas occurred with violence on both sides. Now, under such circumstances, the establishment of the defence of self-defence called for a very careful analysis of the steps taken by the deceased, by the accused and his fellow-accused, and by the other members of the deceased’s group. Inevitably, the credibility of the various witnesses was much in issue. There is no doubt that the accused struck the fatal blow. Of the accused, Emkeit alone gave evidence and he admitted it in his evidence, alleging, however, as I have said, that he acted in self-defence.

The charge upon which the appellant and his co-accused were arraigned was:

that they, at or near Calgary, in the Judicial District of Calgary, Alberta, on or about the 7th day of March, A.D. 1970, did unlawfully murder Ronald George Hartley in that each and everyone of the accused formed an intention in common to carry out the unlawful purpose of assaulting persons with offensive weapons and to assist each other therein and that each of them knew or ought to have known that the commission of the offence of non-capital murder herein alleged against them would be a probable consequence of the carrying out of the common purpose and did thereby commit non-capital murder, contrary to the Criminal Code.

And it was the aim of the accused Emkeit’s counsel to adduce evidence tending to show that Emkeit and his co-accused could not have formed an intention in common to carry out the

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unlawful purpose of assaulting persons with offensive weapons. Under these circumstances, counsel for the Crown, in the course of his cross-examination of the accused, without any foundation or introduction, suddenly asked the accused, “Is George Lowe a poet?” which question the accused answered with “Pardon me?”. And then counsel repeated, “Is he a poet?” to which the accused answered, “I have no idea whether he is a poet or not”; then counsel left the subject and some five pages later returned to the subject by saying:

Q. Yes, I will tell you why I asked you if George was a poet, that’s George Lowe. It seems to me he had a club poem with him. Did you ever hear it? A. I don’t know.

Q. This is Grim Reapers, I will put it to you:

“A flash of chrome.”

It’s entitled “Grim Reapers”.

“A flash of chrome and flying hair,
The Reapers ride with fearless stare.
Citizens scream, daughters beware,
When Reapers ride there is fear in the air.
In the deep of night, with thundering crash,
Deep throated Harleys and Hortons flash.
Out of the night, the wind in their hair,
The Reapers are riding, so citizens take care.
Bikes are their life, they don’t give a damn,
They scorn the world and laugh at the man.
Riding choppers from dawn till dawn,
Knowing damn well they are Satan’s spawn,
Their creed is lust, their bible is hate,
They fuck the world and hell is their fate.”

Is that your poem?

A. No, sir.

Q. It is not? You never heard it before? Are you saying you never heard the thing before?

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A. I might have heard it, I don’t know. Am I supposed to remember everything that ever happened in my life?

Counsel for the Crown on this appeal, who also appeared for the Crown as counsel at the trial, never explained how it seemed to him that Lowe had a club poem with him. There was no evidence whatsoever as to how the so-called poem was obtained and there was simply no evidentiary foundation that the poem had the slightest connection with the accused or any of his co-accused except the words “Grim Reapers” which counsel for the Crown in his question had stated was the title of the poem. The document never was produced. As Brossard J.A. remarked in Regina v. Vallières, supra, it is understandable that during the course of a long trial counsel for the Crown may have allowed a passionate appeal to the jury to escape from him when his attitude towards the accused may subconsciously have been affected by reading vitriolic articles. In that particular case, the accused had admitted, even boasted, that he was the author of the articles. In the present case, the accused denied even any knowledge of the so-called poem.

With the confused state of the evidence as to the fatal fracas and considering the form of the charge laid in the particular case, I am of the opinion that the submission made by counsel for the accused in his factum that this comment by the Crown was calculated to do nothing less than inflame and prejudice the jury against the accused Emkeit, and the poem was quoted only for the purpose of showing that Emkeit and the others implicated were bad men possessed of propensities or dispositions to commit the crime of murder, is a just comment and I am in accord with it. Therefore, it would appear that the accused was seriously prejudiced in his trial. An application to stay the trial was made within a few minutes after the Crown counsel had put the so-called poem to Emkeit in his cross-examination and that application was refused by the learned trial judge. The learned trial judge, in his charge, referred to the matter in a few lines in these words:

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In the course of his cross-examination there was reference made to a poem. Crown counsel read it. Now that may be inflammatory and of a derogative nature. Don’t let it influence you. It is not evidence. It is not a statement of the aims of the Grim Reapers. It is a poem, so what?

Smith, C.J.A., in giving reasons for the Appellate Division of the Supreme Court of Alberta, said:

The jury, having been so warned, I would dismiss this objection on the ground that the decision whether to discharge the jury and order that the appellants be tried before a fresh jury is “primarily for the trial judge to decide upon the circumstances of the particular case”,

relying on the judgment of Rinfret J. in this court in Paradis v. The King, supra.

With respect, I am of the opinion that the not very careful warning issued by the trial judge could not possibly have allayed the very serious prejudice caused by the incomprehensible conduct of the Crown counsel in putting this so-called poem to the accused in the presence of the jury. To use the words of both Coffin J.A. and Cooper J.A. in Regina v. Armstrong, supra, “once the words were sounded the mischief was done”. Here, the accused man and his co‑accused were charged with forming an intent to assault persons with deadly weapons and with thereby causing the death of the deceased man. To attribute to the group a diatribe in which lust and violence were extolled was not only prejudicial it was reprehensible and it was a denial of the whole basis for the trial of accused persons in accordance with the Canadian criminal law, which demands absolute fairness on the part of the Crown. I refer again to the words of Rand J. in Boucher v. The Queen, which I have quoted.

I turn to the question of whether the fault in the trial may be excused by the application of s.

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592(1)(b)(iii) of the Criminal Code. That section may be applied and the appeal dismissed if the court “is of the opinion that notwithstanding the error of law no substantial wrong or miscarriage of justice has occurred”. This court has reviewed, in many cases, the application of that subsection or its predecessor and those cases were summarized and considered in Colpitts v. The Queen[14], where, at p. 755, I adopted the statement from Brooks v. The King[15], as follows:

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.

Applying that principle to the facts in this case, the onus is on the Crown to satisfy the court that if the jury had heard only admissible evidence without the insertion into the trial of this so‑called poem they could not, as reasonable men, have done otherwise than found the accused guilty. In view of the confused evidence as to the fracas, the character of all the persons involved in the fracas, and all of the circumstances which had preceded the accidental meeting on the roadside, I cannot say that reasonable men with proper evidence only before them could not have had reasonable doubt as to the guilt of the accused. I, therefore, would not apply s. 592(1)(b)(iii) of the Criminal Code.

I would allow the appeal and direct that this accused have the same new trial as had been granted already to his co-accused by the judgment of the Appellate Division of the Supreme Court of Alberta.

Appeal dismissed, Hall, Spence and Laskin JJ. dissenting.

Solicitor for the appellant: L.A.L. Matt, Calgary.

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Solicitor for the respondent: E.P. Adolphe, Calgary.