THE ADVOCATE 535
VOL. 77 PART 4 JULY 2019
respective venues, to think that these two events were coincidental to each
other. The evidence of the other drowning was necessary to negate the
defence of accident. And the law school affair established motive and common
purpose. There was a danger of grave injustice. It would offend common
“Yes, you’ve made that point,” interrupted Justice McNaughten. A true
Maritimer (seconded from P.E.I. to preside at R. v. Roth in Vancouver), he
had no patience for repetition. “I can’t agree with you. It doesn’t offend my
common sense. I see great prejudice and small probative value to the proposed
similar fact evidence. I reject the Crown’s analysis of R. v. Smith, the
so-called ‘Brides in the Bath’ case, (1915) 11 Cr. App. R. 229. It’s not binding
on this court, and not on point anyhow. The Crown’s application to adduce
evidence of the Saskatchewan incident, and of the alleged law school dalliance,
is denied. Jury selection tomorrow at 9:30.”
After a strongly pro-defence summing up by McNaughten J. at the close
of the trial (in which Roth did not testify), the jury deliberated for six hours
and came back with a question: “Your lordship, are we supposed to completely
disregard everything we’ve read and heard about the Saskatchewan
murder? And the affair in law school? Do we just ignore the real world?”
The judge brusquely reminded them to disabuse their minds of outside
sources. He repeated, pointedly, the rule of proof beyond a reasonable
doubt. The jury whispered briefly together in the jury box, following which
the foreman shrugged and said, “Okay—not guilty.”
There was no Crown appeal, and Roth J. was back on the bench.
Moncrieff fared less well. The Chief Justice of the Yukon Supreme Court,
parachuted in to preside at her trial in Regina, took a different view of the
Crown’s similar fact application.
“I played football with Bulldog McNaughten at Dalhousie,” he aspersed
waggishly. “I see that he hasn’t changed. His ruling isn’t binding on me.
The ‘Brides in the Bath’ case has stood unchallenged for over a century. The
two bathtub drownings here, within one week, are made extremely suspicious
by the immediate romantic reconnection of these former paramours.
It’s a classic case of motive and common purpose. I am told that they have
recently married—perhaps, one might surmise, to obtain the benefit of section
4(3) of the Canada Evidence Act. That further advances the Crown’s submission
invoking common sense …”
“But my Lord! Even if, for argument’s sake, the subsequent B.C. death
was murder—how is that logically probative of our case being murder?
There is no evidence of collaboration between the parties. And the affair
was 40 years ago … highly prejudicial …”