R. v. J.H.S., 2008 SCC 30, [2008] 2 SCR 152

                                        SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant

and

J.H.S.

Respondent

Coram: Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. J.H.S., [2008] 2 S.C.R. 152, 2008 SCC 30

Her Majesty The Queen                                                                                  Appellant

v.

J.H.S.                                                                                                             Respondent

Indexed as:  R. v. J.H.S.

Neutral citation:  2008 SCC 30.

File No.:  31897.

2008:  January 25; 2008:  May 29.

Present:  Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for nova scotia

Criminal law — Charge to jury — Reasonable doubt — Credibility — Accused convicted of sexual assault — Complainant and accused principal witnesses at trial — Whether trial judge adequately instructed jury on application of principles of reasonable doubt to issue of credibility.

The accused was charged with sexual assault after the complainant alleged that the accused had sexually abused her over a number of years.  The accused, who denied all allegations of impropriety, was tried before a judge and jury.  The issue at trial was whether the alleged events had ever happened.  The complainant and the accused were the principal witnesses.  The trial judge charged the jury on the credibility of the witnesses and specifically instructed the jury that the trial was not a choice between two competing versions of events.  The jury returned a verdict of guilty.  A majority of the Court of Appeal set aside the conviction and ordered a new trial on the basis that the trial judge insufficiently explained the principles of reasonable doubt as they applied to credibility, concluding that the jury was not clearly instructed that lack of credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt.  The dissenting judge would have upheld the conviction finding that the charge to the jury was sufficient.

Held:  The appeal should be allowed and the conviction restored.

Where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown’s ultimate burden to prove the guilt of the accused to the criminal standard.  A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding.  It must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt.  Where credibility is important, the trial judge’s instructions must not leave the jury with the impression that it has to choose between the two versions of events.  The “credibility contest” error must be avoided.  Lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt.  However, the application of W. (D.) should not result in triumph of form over substance.  [8‑9] [13]

In this case, the reasoning of the majority brushes uncomfortably close to treatment of W. (D.) as a “magic incantation”.  When read as a whole, the charge did not leave the jury with any misapprehension as to the correct burden and standard of proof to apply.  The trial judge told the jury that they could not decide the case simply by choosing between the evidence of the complainant and that of the accused.  She explained that even if they did not accept all of the accused’s testimony, they could still accept some of it.  She also explained that any reasonable doubt must be resolved in favour of the accused and, in that context, she reminded the jury that they must consider all of the evidence when determining reasonable doubt.  This was sufficient.  [14‑15]

Cases Cited

Referred to:  R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Challice (1979), 45 C.C.C. (2d) 546; R. v. Chan (1989), 52 C.C.C. (3d) 184; R. v. Morin, [1988] 2 S.C.R. 345; R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146; R. v. MacKenzie, [1993] 1 S.C.R. 212; R. v. Levasseur, [1994] 3 S.C.R. 518, rev’g (1994), 89 C.C.C. (3d) 508; R. v. C.L.Y., [2008] 1 S.C.R. 5, 2008 SCC 2; R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1; R. v. S. (W.D.), [1994] 3 S.C.R. 521; R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, s. 271(1) (a).

APPEAL from a judgment of the Court of Appeal for Nova Scotia (Saunders, Oland and Fichaud JJ.A.) (2007), 250 N.S.R. (2d) 360, 217 C.C.C. (3d) 52, 44 C.R. (6th) 302, [2007] N.S.J. No. 37 (QL), 2007 CarswellNS 40, 2007 NSCA 12, setting aside the conviction of the accused for sexual assault.  Appeal allowed.

Daniel A. MacRury, Q.C., for the appellant.

Joel E. Pink, Q.C., for the respondent.

The judgment of the Court was delivered by

Binnie J. —

[1]                              The Crown appeals the decision of the Nova Scotia Court of Appeal setting aside the conviction of the respondent for the sexual assault of his stepdaughter.  The complainant and the accused were the principal witnesses.  The majority judgment of the Court of Appeal concluded that the trial judge had insufficiently instructed the jury on their duty, even if they disbelieved the accused, to determine whether the Crown had proved on the whole of the evidence every element of the charge against him to the criminal standard of proof.  In other words, the majority concluded that the jury was not clearly instructed that lack of credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt as required by R. v. W. (D.), [1991] 1 S.C.R. 742.  The dissenting judge in the Court of Appeal, Saunders J.A., was of the view that the jury instruction on this point left no room for misunderstanding about the correct burden and standard of proof to apply.  That is the bottom line.  I agree with him and would allow the appeal.

I.  Facts

[2]                              The respondent was the stepfather of the complainant.  The complainant testified that the respondent, who lived in the same house along with  her sister and their mother, started sexually abusing her when she was approximately four years old.  The abuse went on consistently, and intensified from touching to intercourse as she got older  (A.R., at pp. 142-45).  When she was eight-and-a-half years old and again when she was almost 15, the complainant told her mother about the assault, but the mother did not believe her on either occasion, at least initially.  Eventually, the mother told the respondent to leave the house.  At the age of 15, the complainant went to the police.

[3]                              The complainant’s mother testified that when the complainant was about 13, she began to hang around with a rough crowd that was breaking into houses and mailboxes.  She was smoking, drinking, had a lot of problems with her teachers and the principal at school, and rebelled at everything.  According to her sister, the complainant went from being “kind of a good little apple to a bad apple” as she got older (A.R., at p. 358).  The sister described the relationship between her mother and the complainant as “very rocky”, and living with them as “sheer chaos” (A.R., at p. 362).

[4]                              The accused denied all allegations of impropriety.  The defence theory was that the complainant began to act up when her biological father first came back into her life when she was about 11 years old.  Shortly afterwards he again ceased contact with her.  The complainant felt rejected.  In response to her uncontrollable behaviour, the respondent threatened to send her to a Catholic school, which the defence says prompted her false allegations of sexual assault (A.R., at pp. 126-27).

II.  Judicial History

A.  Supreme Court of Nova Scotia — Robertson J.

[5]                              The respondent was tried before a judge and jury for sexual assault contrary to s. 271(1) (a) of the Criminal Code, R.S.C. 1985, c. C-46 .  The issue at trial was whether the alleged events ever happened.  The trial judge charged the jury on credibility as follows:

Now I’m going to speak to you about credibility of witnesses.  To make your decision, you should consider carefully, and with an open mind, all the evidence presented during this trial. It will be up to you to decide how much or how little you will believe or rely upon the testimony of any witness.  You may believe some, none or all. [A.R., at p. 45]

The trial judge also charged the jury as follows on the credibility of the respondent in particular:

Please remember that you do not have to accept or reject all of the testimony of any witness, including [the accused] . . . .  It is up to you whether you accept all of his testimony . . . . [A.R., at p. 53]

[6]                              The jury was specifically instructed that the trial was not a choice between two competing versions of events:

The real issue in this case is whether the alleged events ever took place.  It is for the Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred.  It is not for [the accused] to prove that these events never happened. If you have a reasonable doubt whether the events alleged ever took place, you must find him not guilty.

You do not decide whether something happened simply by comparing one version of events with another, or choosing one of them. You have to consider all the evidence and decide whether you have been satisfied beyond a reasonable doubt that the events that form the basis of the crime charged, in fact, took place. [A.R., at p. 54]

Defence counsel raised no objection to the charge.  The jury returned a verdict of guilty.

B.  Court of Appeal of Nova Scotia

[7]                              Oland J.A., writing for herself and Fichaud J.A., applied W. (D.).  In her view the trial judge insufficiently explained the principles of reasonable doubt as they applied to credibility.  The jury might have misunderstood the relationship between those two concepts.  In her view:

While the W. (D.) phrasing is not a “magic incantation,” the trial judge’s instructions must get the message to the jury to satisfy the ultimate test — whether “the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply” (Cory J. in W. (D.), supra, at p. [758 S.C.R.]).

((2007), 217 C.C.C. (3d) 52, 2007 NSCA 12, at para. 18)

Oland J.A. held that the jury instruction did not provide adequate guidance as to how the jury should proceed in their deliberations if they were “uncertain or unable to resolve the issue of credibility” (para. 21).  Oland J.A. found that the instruction therefore failed to properly express the second W. (D.) principle, that “disbelief of the accused’s testimony does not exhaust the jury’s function” in assessing that testimony.  “The jury must still consider whether the accused’s testimony leaves [them] with a reasonable doubt” (para. 22).  In dissent, Saunders J.A. found the jury charge to be sufficient.

III.  Analysis

[8]                              A series of decisions over at least the past 20 years has affirmed and reaffirmed the proposition that where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown’s ultimate burden to prove the guilt of the accused to the criminal standard.  A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding.  The so-called W. (D.) instruction has long roots:  R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), at p. 556; R. v. Chan (1989), 52 C.C.C. (3d) 184 (Alta. C.A.), at p. 186; R. v. Morin, [1988] 2 S.C.R. 345, at p. 362; R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.), at p. 155; R. v. MacKenzie, [1993] 1 S.C.R. 212, at pp. 219 and 239; R. v. Levasseur, [1994] 3 S.C.R. 518 (upholding Fish J.A.’s dissent reported at (1994), 89 C.C.C. (3d) 508 (Que. C.A.), at p. 534).  W. (D.) has been cited by Canadian courts at all levels in no fewer than 3,743 subsequent reported cases.  It has proven to be a fertile source of appellate review.  For a recent application, see R. v. C.L.Y., [2008] 1 S.C.R. 5, 2008 SCC 2.

[9]                              The passage from W. (D.) at issue in this case, as in so many others, is found at pp. 757-58, where Cory J. explained:

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge.  A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided.  The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law.  Every effort should be made to avoid mistakes in charging the jury on this basic principle.

Nonetheless, the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply . . . .

Essentially, W. (D.) simply unpacks for the benefit of the lay jury what reasonable doubt means in the context of evaluating conflicting testimonial accounts.  It alerts the jury to the “credibility contest” error.  It teaches that trial judges are required to impress on the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt.

[10]                          The precise formulation of the W. (D.) questions has been criticized.  As to the first question, the jury may believe inculpatory elements of the statements of an accused but reject the exculpatory explanation.  In R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1, the accused did not testify, but his description of the killing of his daughter was put into evidence by way of statements to the police.  His description of the event itself was obviously believed.  The exculpatory explanation did not amount to a defence at law.  He was convicted.  The principle that a jury may believe some, none, or all of the testimony of any witness, including that of an accused, suggests to some critics that the first W. (D.) question is something of an oversimplification.

[11]                          As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt.  Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected.  Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not.  In either circumstance the accused is entitled to an acquittal.

[12]                          The third question, again, is taken by some critics as failing to contemplate a jury’s acceptance of inculpatory bits of the evidence of an accused but not the exculpatory elements.  In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested an additional instruction:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” [p. 155]

[13]                          In short the W. (D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them.  W. (D.)’s  message that it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph of form over substance.  In R. v. S. (W.D.), [1994] 3 S.C.R. 521, Cory J. reiterated that the W. (D.) instructions need not be given “word for word as some magic incantation” (p. 533).  In R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56, Major J. for the majority pointed out that in any case where credibility is important “[t]he question is really whether, in substance, the trial judge’s instructions left the jury with the impression that it had to choose between the two versions of events” (para. 19).  The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt.

[14]                          In the present case Oland J.A.  agreed that the trial judge did not “call upon the jury to simply decide which of the complainant or [the accused] it believed” (para. 20).  Nevertheless, in her view:

The charge only instructed that probable guilt was not enough to meet the standard of proof beyond a reasonable doubt, that the appellant was to be given the benefit of the doubt, and they did not have to accept or reject all of the testimony of any witness including his, and that they were to consider all of the evidence.  Nowhere did it provide any guidance as to how, in the event they were uncertain or unable to resolve the issue of credibility, they were to proceed with their deliberations.  The charge failed to direct that if the jury did not believe the testimony of the accused but were left in a reasonable doubt by that evidence, they must acquit.  [Underlining added; para. 21.]

In my view, with respect, the reasoning of the majority brushes uncomfortably close to the “magic incantation” error.  At the end of the day, reading the charge as a whole, I believe the instruction to this jury satisfied the ultimate test formulated by Cory J. in W. (D.) as being whether “the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply” (p. 758).

[15]                          Here the trial judge explained that any reasonable doubt must be resolved in favour of the accused.  She also explained that even if they did not accept all of the accused’s testimony, they could still accept some of it.  She also explained to the jury that they should not see their task as that of deciding between two versions of events.  She told them that they could not decide the case simply by choosing between the evidence of the complainant and that of the accused.  She reminded them, in that context, that they must consider all of the evidence when determining reasonable doubt.  She stated:

You do not decide whether something happened simply by comparing one version of events with another, or choosing one of them.  You have to consider all the evidence and decide whether you have been satisfied beyond a reasonable doubt that the events that form the basis of the crime charged, in fact, took place. [A.R., at p. 54]

                                                                   . . .

. . . Again, you do not decide whether something happened simply by comparing one version of events with the other, or by choosing one of them.  You have to consider all of the evidence and decide whether you have been satisfied beyond a reasonable doubt that the events that form the basis of the crimes charges, in fact, took place. [A.R., at p. 55]

[16]                          In my view, the trial judge got across the point of the second W. (D.) question without leaving any realistic possibility of misunderstanding.  As stated, she told the jury:

It is for the Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred.  It is not for [the accused] to prove that these events never happened.  If you have a reasonable doubt whether the events alleged ever took place, you must find him not guilty. [Emphasis added;  A.R., at p. 54.]

[17]                          There was much discussion at the hearing about defence counsel’s failure to object.  In my view, he correctly ascertained that the jury had been adequately instructed on the relationship between the assessment of credibility and the ultimate determination of guilt beyond a reasonable doubt.  Before the recharge was given he told the trial judge he would “feel more comfortable if simply the wording that was read previously was re-read to the jury again” (A.R., at p. 77).  He discharged his duty to the respondent.

IV.  Disposition

[18]                          I would allow the appeal, set aside the judgment of the Court of Appeal, and restore the conviction.

Appeal allowed.

Solicitor for the appellant:  Public Prosecution Service of Nova Scotia, Halifax.

Solicitors for the respondent:  Garson Pink, Halifax.