R. v. Laboucan, 2010 SCC 12, [2010] 1 SCR 397

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant

and

Joseph Wesley Laboucan

Respondent

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Restriction on Publication:  Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.  See the Youth Criminal Justice Act , S.C. 2002, c. 1, s. 110(1) .

Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.  See the Youth Criminal Justice Act , S.C. 2002, c. 1, s. 111(1) .

______________________________

R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397

Her Majesty The Queen                                                                                                    Appellant

v.

Joseph Wesley Laboucan                                                                                               Respondent

Indexed as:  R. v. Laboucan

2010 SCC 12

File No.:  33010.

2009:  December 10; 2010:  April 8.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for alberta

Criminal law — Trial — Credibility of accused — Presumption of innocence — Trial judge rejecting accused’s testimony in part because of “very great motive to be untruthful” in order to secure acquittal — Accused convicted — Whether trial judge’s consideration of accused’s “very great motive to be untruthful” undermined presumption of innocence.

C, a 13‑year‑old girl, and a friend were lured from a mall and driven to an isolated golf course where C was sexually assaulted and beaten to death.  The five persons involved, including three youths, were charged with kidnapping, aggravated sexual assault, and first‑degree murder.  The two adults, B and L — the accused in this case — were tried together.  C’s friend and all charged persons except for  B testified giving various accounts.  L admitted at trial that he had been present when the crimes occurred but denied participating in any of them.  His position was that the other witnesses’ testimony inculpating him had been fabricated for reasons of “jealousy, a desire for revenge, or a desire to avoid responsibility for their own actions”.  Credibility of the witnesses, including L, was of central importance in the trial.  The trial judge rejected L’s testimony, in part, on the basis of his motive to lie because of his interest in securing an acquittal and, based on the evidence he did believe, convicted L on all charges.  In the Court of Appeal, the majority held that the trial judge’s reference to L’s “very great motive to be untruthful” presumed his guilt and so revealed a fatal flaw which necessitated a new trial.  The dissenting judge was of the opinion that the impugned passage, when read in context, did not constitute error.

Held:  The appeal should be allowed.

The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witness’s testimony.  This common sense proposition applies to an accused person who testifies in his or her defence.  The fact that the witness is the accused, however, raises specific concern.  Any assumption that an accused will lie to secure his or her acquittal, simply because of his status as an accused, flies in the face of the presumption of innocence as an innocent person, presumably, need only tell the truth to achieve this outcome.  In most cases, considering the accused’s motive to lie in assessing his or her credibility as a witness is a factor that is simply unhelpful and, as a general rule, triers of fact would be well advised to avoid that path all together, lest they unwittingly err by making the impermissible assumption.  Whether it is appropriate for the trier of fact to consider that the accused may have a motive to lie in order to secure an acquittal will depend on the evidence and the issues raised at trial.  A trial judge does not commit an error of law simply by making reference to or taking account of an accused’s motive to lie.  A trial judge’s consideration of an accused’s motivation to be untruthful must be examined within the context of the trial and the reasons as a whole.  The determining question is whether the trial judge’s comments undermined the presumption of innocence.

In this case, while the language used by the trial judge in referring to the accused’s motive to lie may give cause for concern when viewed in isolation, the reasons, read in their entirety and in the light of the context of the trial as a whole, reveal that the trial judge properly assessed and weighed the evidence of all the witnesses, including L, without undermining the presumption of innocence or the burden of proof.  The trial judge’s reasons make it clear that he correctly instructed himself as to the applicable principles.  He then faithfully followed these principles in analysing the evidence.  The reasons were responsive to the issues raised in this joint trial, where the testimony of every principal witness was challenged by L on the ground that he or she had a motive to fabricate the evidence against him.  Therefore, it was a crucial and unavoidable aspect of determining the credibility issues that the trial judge consider L’s own motives.  On this crucial question, the trial judge did not proceed on the basis of the impermissible assumption that the accused, because of his status as an accused, would lie to secure an acquittal.

Cases Cited

Referred to:  R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. B. (L.) (1993), 13 O.R. (3d) 796; McMillan v. The Queen, [1977] 2 S.C.R. 824; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Murray (1997), 115 C.C.C. (3d) 225; R. v. Poitras (2002), 57 O.R. (3d) 538; R. v. D. (S.), 2007 ONCA 243, 218 C.C.C. (3d) 323; R. v. Parnell (1995), 59 B.C.A.C. 291; R. v. Silverquill, 1999 BCCA 128, 121 B.C.A.C. 126; R. v. Khuc, 2000 BCCA 20, 132 B.C.A.C. 139; R. v. Green, 2002 BCCA 269 (CanLII); R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5.

APPEAL from a judgment of the Alberta Court of Appeal (Berger, Slatter and Rowbotham JJ.A.), 2009 ABCA 7, 1 Alta. L.R. (5th) 264, 446 A.R. 106, 442 W.A.C. 106, 241 C.C.C. (3d) 315, [2009] 4 W.W.R. 430, [2009] A.J. No. 2 (QL), 2009 CarswellAlta 3, setting aside the accused’s convictions entered by Burrows J., 2007 ABQB 196, 413 A.R. 53, [2007] A.J. No. 344 (QL), 2007 CarswellAlta 401, and ordering a new trial.  Appeal allowed.

James C. Robb, Q.C., and Tamara Friesen, for the appellant.

Laura K. Stevens, Q.C., for the respondent.

The judgment of the Court was delivered by

Charron J. —

1.    Introduction

[1]     Following his trial by judge alone, the respondent Joseph Wesley Laboucan was convicted of kidnapping, aggravated sexual assault, and first degree murder:  2007 ABQB 196, 413 A.R. 53 (sub nom. R. v. Briscoe).  This appeal as of right raises the sole issue of whether the trial judge erred in law by rejecting  Mr. Laboucan’s testimony, in part, on the basis of his motive to lie because of his interest in securing an acquittal.  The Alberta Court of Appeal was divided on this question (2009 ABCA 7, 1 Alta. L.R. (5th) 264), with the majority finding that the trial judge’s reference to Mr. Laboucan’s “very great motive to be untruthful” presumed his guilt, thereby revealing a fatal flaw which necessitated a new trial.  Rowbotham J.A. dissented.  In her view, the impugned passage, when read in context, did not constitute error.

[2]     I would allow the appeal.  While the language used by the trial judge in referring to the accused’s motive undoubtedly raises concern, it cannot be considered in isolation.  When considered in context, I am satisfied that the reasons were responsive to the issues raised in this joint trial, where the testimony of every principal witness was challenged by Mr. Laboucan on the ground that he or she had a motive to fabricate the evidence against him.  When the trial judge’s reasons are read as a whole, I am satisfied that, on the crucial question of Mr. Laboucan’s credibility, he did not proceed on the basis of the impermissible assumption that the accused, because of his status as an accused, would lie to secure an acquittal.

2.    The Facts and Judicial History

[3]     For the purposes of this appeal, a brief account of the facts will suffice. Shortly after midnight on April 3, 2005, 13-year-old Nina Courtepatte and her friend, Ms. K.B., were lured from West Edmonton Mall on the false promise of being taken to a party.  The two young girls got into a car with five individuals:  Mr. Laboucan, his co‑accused Michael Erin Briscoe, and three youths, Mr. M.W., Ms. S.B. and Ms. D.T.  Mr. Briscoe drove the group to an isolated golf course.  While they were walking down a gravel path and onto a fairway, Ms. S.B. hit Nina with a wrench, causing her to fall.  Nina was then held down, sexually assaulted by Mr. Laboucan and Mr. M.W., and beaten to death.  Nina’s friend, Ms. K.B., was not assaulted.

[4]     All five individuals whom Nina and her friend joined that fateful night were charged with kidnapping, aggravated sexual assault, and first degree murder.  The two adults in the group, Mr. Laboucan and Mr. Briscoe, were jointly charged and tried together in this proceeding by a judge sitting without a jury.  The three youths, Mr. M.W., Ms. S.B., and Ms. D.T., were charged separately.  At the time of the joint trial, Mr. M.W. had pleaded guilty and was awaiting sentencing.  The other youths were yet to be tried.  Except for Mr. Briscoe, all charged individuals testified at the trial, as did Ms. K.B., giving various accounts of the tragic events.

[5]     During his testimony at trial, Mr. Laboucan admitted that he was present when the victim was kidnapped, sexually assaulted and murdered, but denied participating in any of those crimes. It was his position that the testimony of the other witnesses inculpating him had been fabricated for reasons of “jealousy, a desire for revenge, or a desire to avoid responsibility for their own actions” (trial judgment, at para. 201).

[6]     DNA and other forensic evidence was not conclusive insofar as it related to the two accused before the court.  Credibility of the witnesses, including Mr. Laboucan, was, therefore, of central importance in the trial.

[7]     The trial judge provided lengthy and detailed reasons for judgment.  In this appeal, we are concerned solely with the assessment of Mr. Laboucan’s credibility and the role it played in arriving at a verdict of guilt.  After outlining the approach set out in R. v. W. (D.), [1991] 1 S.C.R. 742, the trial judge concluded at the first stage of the W. (D.) analysis, that he disbelieved Mr. Laboucan.  In giving his reasons for disbelieving him, the trial judge made reference to Mr. Laboucan’s motive to lie in these terms:

I summarized Mr. Laboucan’s testimony in paragraphs [100] to [132] above. Having carefully considered it, I have concluded that I do not believe Mr. Laboucan.  My reasons for this conclusion are:

                                                                            . . .

d) The fact that he has a very great motive to be untruthful given the consequences of being convicted of the offences charged.

e)  The fact that in many respects his evidence is radically inconsistent with the evidence of other witnesses who have no, or at least less, reason to be untruthful about the particular point on which their respective evidence is inconsistent, or whose evidence on the point tends to implicate themselves as well as Mr. Laboucan.  [Emphasis added; para. 202.]

[8]     For the same reasons, the trial judge concluded that Mr. Laboucan’s evidence did not leave him in a reasonable doubt about his involvement in the crimes with which he was charged (para. 203).  He proceeded to determine which evidence he did believe.  Based on that evidence, the trial judge was satisfied beyond a reasonable doubt that the Crown had proven each element of the offences charged.  He therefore convicted Mr. Laboucan on all charges.

[9]     On his appeal to the Alberta Court of Appeal, Mr. Laboucan argued that the trial judge erred in his assessment of credibility.  Berger and Slatter JJ.A. agreed.  They were of the view that the impugned reference to Mr. Laboucan’s motive to be untruthful revealed a fatal flaw in the trial judge’s reasoning.  “To isolate this Appellant as having a very great intent to fabricate pre-supposes diminished credibility on his part on the basis only of his status as an accused who testified at his own trial” (para. 21).  Having proceeded on the prohibited assumption that the accused will lie to secure his acquittal, the trial judge’s approach effectively undermined the presumption of innocence and, as such, his error could not be saved by the curative provision.  The majority therefore allowed Mr. Laboucan’s appeal, set aside his convictions, and ordered a new trial.

[10] Rowbotham J.A., in dissent, would have dismissed the appeal.  When considered in the context of the issues at trial, the other reasons for disbelieving Mr. Laboucan, and the reasons as a whole, including the trial judge’s careful and thorough analysis of the principles in W. (D.), it was her view that the impugned passage revealed no error.  The Crown appeals to this Court as of right.

3.    Analysis

[11] The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witness’s testimony.  A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going to credibility.  For example, it would be improper to base a finding of credibility regarding a parent’s or a spouse’s testimony solely on the basis of the witness’s relationship to the complainant or to the accused.  Regard should be given to all relevant factors in assessing credibility.

[12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence.  The fact that the witness is the accused, however, raises a specific concern.  The concern arises from the fact that both innocent and guilty accused have an interest in not being convicted.  Indeed, the innocent accused has a greater interest in securing an acquittal.  Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome.  In R. v. B. (L.) (1993), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherent danger in considering the accused’s motive arising from his or her interest in the outcome of the trial.  In an often-quoted passage, she stated as follows (at pp. 798-99):

It  falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest in the outcome dictates that course of action.  This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused.  The accused is obviously interested in being acquitted.  In order to achieve that result he may have to testify to answer the case put forward by the prosecution.  However, it cannot be assumed that the accused must lie in order to be acquitted, unless his guilt is no longer an open question.  If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused’s interest in securing his acquittal may be the most plausible explanation for the lie.  The explanation for a lie, however, cannot be turned into an assumption that one will occur.  [Emphasis added.]

[13] Counsel for Mr. Laboucan argues that it is inherently wrong in every case to consider an accused’s interest in the outcome of the trial, as no useful inference can be drawn from that fact.  She therefore urges the Court to adopt an absolute prohibition against considering the accused’s motive to lie in assessing his or her credibility as a witness.

[14] In most cases, I would agree with counsel that this factor is simply unhelpful and, as a general rule, triers of fact would be well advised to avoid that path altogether, lest they unwittingly err by making the impermissible assumption that the accused will lie to secure an acquittal.  However, I would not adopt an absolute rule as proposed, for the following reasons.

[15] An absolute rule prohibiting the trier of fact from considering that an accused may have a  motive to lie in order to secure an acquittal, regardless of the circumstances, would artificially immunize the accused in a manner inconsistent with other rules of evidence that provide special protection to the accused.  Courts have consistently rejected prohibitive rules that would result in a trier of fact acting upon a misleading view of a case.  For example, there is a general rule prohibiting the Crown from introducing evidence about the accused’s bad character.  However, in McMillan v. The Queen, [1977] 2 S.C.R. 824, where the accused called evidence that his wife was psychopathic, making her the likely killer of an infant, the Court held that the Crown could adduce evidence of the accused’s similar disposition.  Otherwise the jury would have been left with an entirely distorted picture.  Similarly, in R. v. Corbett, [1988] 1 S.C.R. 670, where the defence had vigorously attacked the credibility of the Crown witnesses, making much of their criminal records, Dickson C.J. held that “a serious imbalance would have arisen” had the jury not been apprised of the accused’s criminal record (p. 690).  This opened up the opportunity for a more extensive cross-examination on the accused’s criminal record that might otherwise be viewed as unduly prejudicial. Therefore, whether or not it is appropriate for the trier of fact to consider that the accused may have a motive to lie because of his or her interest in the trial will depend on the evidence and the issues raised at trial.

[16] An absolute rule as proposed would also be contrary to established principles of appellate review.  It should now be regarded as trite law that a trial judge’s reasons should be read as a whole, in the context of the evidence, the issues and the arguments at trial, together with “an appreciation of the purposes or functions for which they are delivered”:  R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16.  Consistent with this approach, courts have not held that the trial judge commits an error of law simply by making reference to or taking account of an accused’s motive to lie.  It all depends on the context: R. v. Murray (1997), 115 C.C.C. (3d) 225 (Ont. C.A.), at pp. 230-31; R. v. Poitras (2002), 57 O.R. (3d) 538 (C.A.), at paras. 15-19; R. v. D. (S.), 2007 ONCA 243, 218 C.C.C. (3d) 323, at para. 37; R. v. Parnell (1995), 59 B.C.A.C. 291, at paras. 42-43; R. v. Silverquill, 1999 BCCA 128, 121 B.C.A.C. 126, at paras. 14-18; R. v. Khuc, 2000 BCCA 20, 132 B.C.A.C. 139, at para. 35; R. v. Green, 2002 BCCA 269 (CanLII), at paras. 11-12.

[17] In reviewing a trial judge’s reasons for disbelieving the accused, a court should also be mindful of the useful distinction drawn by Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), where he cautioned against reading a trial judge’s reasons as if they were an instruction to a jury.  The Court has repeatedly endorsed his observations (at p. 204):

A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury.  Instructions provide a road‑map to direct lay jurors on their journey toward a verdict.  Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion.  They are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict.

See for example R.E.M., at para. 18 and R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 11, where Abella J. has endorsed this approach.  Of course, it may be clear that a judge, in part of the reasons, is in fact describing the road-map or process he or she engaged in.  Again here, any impugned passage in a trial judge’s reasons must be read in the context of the entire reasons.

[18] It follows from these principles that the trial judge’s consideration of Mr. Laboucan’s “very great motive to be untruthful” must be placed within the context of the trial and the reasons as a whole.  At the end of the day, the determining question is whether the trial judge’s comments undermined the presumption of innocence.  The majority in the Court of Appeal concluded that they did.  I disagree.  In my respectful view, the majority erred by effectively considering the impugned statement in isolation. As I read their reasons, the fact that “[t]he motivation was described as a motivation to be untruthful, not simply a motivation to be acquitted” (para. 22) effectively drove their conclusion.  It mattered not what the trial judge wrote elsewhere in his reasons or in what context the words were chosen.  In their view, the reference to the accused’s motivation to be untruthful, as opposed to his motivation to secure an acquittal, was irreconcilable  with the teachings in W. (D.) and “constituted a material flaw in the assessment of credibility bearing upon the substance of the judgment” (para. 31).

[19] As I indicated at the outset, I agree with Rowbotham J.A.’s conclusion that the trial judge committed no error.  I am also in substantial agreement with her analysis.  In my view, she considered the impugned comments in their appropriate context.  In the “road-map” part of the judgment where the trial judge instructed himself on the law, she noted that he correctly instructed himself as to the applicable W. (D.) principles and the burden of proof.  Therefore, this is not a situation where the reviewing court has to rely on the presumption that the trial judge knows the law on credibility.  His reasons make it clear that he did.  The trial judge then faithfully followed the principles he had set out in analysing the evidence.

[20] Rowbotham J.A. then reviewed at some length the numerous reasons given by the trial judge for disbelieving the accused’s testimony, at paras. 50-58.  I need not repeat those reasons here.  They are numerous and well founded in the evidence.  They include: material inconsistencies between Mr. Laboucan’s evidence at trial and his evidence given at a preliminary inquiry; further inconsistencies between his evidence at trial and that given in statements to police; his admission that he had made up an elaborate fiction concerning a murder he had witnessed, where he implicated real people even though they had no involvement whatsoever in the actual murder at which he was present; the fact that there was no medical evidence to support his claim that he entered into a state of shock which prevented him from responding to the events at the scene; and the stark conflict between his evidence and the evidence of every other  witness present at the scene.

[21] Finally, Rowbotham J.A. held that the comparison to the motivations of the witnesses in para. 202(e) was entirely appropriate in this case, given the defence position at trial.  In my view, the defence position is a very important contextual factor that explains the language used by the trial judge.  Central to this trial was the fact that the credibility of each of the main witnesses was challenged by Mr. Laboucan on the basis that they had a motive to lie and fabricate evidence against him, either to exculpate themselves in other proceedings or to minimize their participation in the crime.  The trial judge was appropriately mindful of the defence position throughout his review of their evidence.

[22] In these circumstances, where the defence theory rested on the contention that each witness who implicated Mr. Laboucan lied out of self-interest, it was entirely appropriate for the trial judge to consider that the witnesses would have had no, or less reason, to be untruthful on particular points of evidence in respect of which Mr. Laboucan provided radically inconsistent testimony.  The trial judge’s careful and detailed review of the evidence belies any contention that Mr. Laboucan’s testimony was inappropriately isolated and subjected to greater scrutiny than the other witnesses on the basis of his status as an accused.  Further, Mr. Laboucan’s testimony and position regarding the witnesses had implications for the co-accused, Mr. Briscoe.  Therefore, unlike Rowbotham J.A. who concluded that the impugned comments were “harmless and unnecessary” (para. 63), it is my view that, within the context of this trial, it was a crucial and unavoidable aspect of determining the credibility issues that the trial judge consider Mr. Laboucan’s own motives.

[23] As stated at the outset, while some of the language used by the trial judge in his reasons may give cause for concern when viewed in isolation, when the reasons are read in their entirety and in the light of the context of the trial as a whole, they reveal that the trial judge properly assessed and weighed the evidence of all the witnesses, including the accused, without undermining the presumption of innocence or the burden of proof.

4.    Disposition

[24] For these reasons, I would allow the appeal, set aside the order for a new trial, and restore the convictions.

Appeal allowed.

Solicitor for the appellant:  Attorney General of Alberta, Edmonton.

Solicitors for the respondent:  Dawson Stevens & Shaigec, Edmonton.