R. v. Russell, 2000 SCC 55, [2000] 2 SCR 731

R. v. Russell, [2000] 2 S.C.R. 731

Mark Edward Russell Appellant

v.

Her Majesty The Queen                                                                   Respondent

Indexed as:  R. v. Russell

Neutral citation:  2000 SCC 55.

File No.:  26699.

1999:  November 5; 2000:  November 10.

Present:  Iacobucci, Major, Bastarache, Binnie and Arbour JJ.

on appeal from the court of appeal for alberta

Criminal law ‑‑ Charge to jury ‑‑ Reasonable doubt ‑‑ Accused convicted of second degree murder ‑‑ Whether pre-Lifchus charge on reasonable doubt in substantial compliance with principles set out in Lifchus.

The accused was convicted of second degree murder.  He appealed the conviction on several grounds and, in particular, argued that the use of certain words and phrases in the trial judge’s charge on “reasonable doubt” may have misled the jury on its ability to understand and apply the criminal standard of proof.  The majority of the Court of Appeal held that the trial judge, who did not have the benefit of this Court’s decision in Lifchus, had not misled the jury.  The majority emphasized that Lifchus did not demand that any specific wording be used in the charge and concluded  that the jury had not been left with a reasonable misapprehension about the correct standard of proof.  The Court of Appeal unanimously dismissed the other grounds of appeal.  The sole issue raised in this appeal as of right was whether the majority of the Court of Appeal erred in finding that the instructions given by the trial judge to the jury  on reasonable doubt  were in substantial compliance with the principles enunciated in Lifchus to alleviate concerns that the jury may have misunderstood its task.

Held:  The appeal should be dismissed.

The trial judge’s instructions must be considered as a whole, and in the overall context of the case, to determine whether there was substantial compliance with Lifchus.  The absence of one of the required ingredients of Lifchus, or the inclusion of one of the inappropriate elements, will not usually be determinative of the charge as a whole.  Appellate assessment of substantial compliance with the Lifchus principles in cases where the trial judge did not have the benefit of that decision is not a mechanical task.  Rather, it is a judgment call on whether the deficiencies in the charge fall below the Lifchus standard such as to cause serious concern about the validity of the jury’s verdict, and lead to the conclusion that the accused did not have a fair trial.  The appellate review of substantial compliance with Lifchus is inevitably in a transitional phase and the failure of jury charges prior to Lifchus to reflect its principles cannot be taken to raise by that alone the spectre of an unfair trial or miscarriage of justice.  At the same time, Canadian courts have been and will continue to be vigilant to ensure that unfair trials and miscarriages of justice do not go unremedied.  Here, there was no reason to interfere with the disposition of the appeal by the majority of the Court of Appeal, particularly when it thoroughly addressed the elements of the Lifchus principles and no other issues are raised.  The accused’s trial was not unfair in the sense that the integrity of the verdict was compromised.

Cases Cited

Applied:  R. v. Lifchus, [1997] 3 S.C.R. 320; distinguished:  R. v. Starr, [2000] 2 S.C.R. 44, 2000 SCC 40; R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56; referred to:  R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54; R. v. Bisson, [1998] 1 S.C.R. 306; R. v. Malott, [1998] 1 S.C.R. 123.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C-46, s. 691(1) (a).

APPEAL from a judgment of the Alberta Court of Appeal (1998), 219 A.R. 19, 179 W.A.C. 19, 62 Alta. L.R. (3d) 87, [1999] 1 W.W.R. 684, [1998] A.J. No. 569 (QL), dismissing the accused’s appeal from his conviction for second degree murder.  Appeal dismissed.

Balfour Q.H. Der and Richard W. Muenz, for the appellant.

Joshua B. Hawkes, for the respondent.

The judgment of the Court was delivered by

Iacobucci J. –

I.  Introduction

1                                   The sole issue in this appeal is whether the Alberta Court of Appeal erred in its conclusion that the trial judge’s charge to the jury on the reasonable doubt standard was in accord with the guidelines set out in R. v. Lifchus, [1997] 3 S.C.R. 320.  That is, whether there was a reasonable likelihood that the use of certain words and phrases would have misled the jury in its task of understanding and applying the criminal standard of proof in their deliberations.

2                                  This is one of a line of cases heard in this Court where the trial judge did not have the benefit of this Court’s reasons in Lifchus and where the Court of Appeal did not have the benefit of R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40 (see R. v. Beauchamp, [2000] 2 S.C.R. 720,  2000 SCC 54; and R. v. Avetysan, [2000] 2 S.C.R. 000, 2000 SCC 56).  In Starr, supra, released recently, the majority concluded that a pre-Lifchus charge to a jury must be reviewed to ensure that there was substantial compliance with the Lifchus principles.  In short, Lifchus affirmed that there should be no ritual incantations and reiterated in no uncertain terms that the final determination was still to be based on whether the charge to the jury, taken globally, sufficiently informed the jury of the proper standard.

II.  Facts

3                                   The appellant was found guilty of second degree murder by a jury on September 27, 1996.  The incident giving rise to the charge occurred on July 27, 1995, when Kimberley Cahoon was shot in the neck and killed with a shotgun fired at close range.  The shooting occurred in the kitchen of the home that the appellant shared with another man.   At trial, the defence put forward the theory that the appellant’s house-mate had killed Ms. Cahoon.  This theory was grounded on the view that, given the appellant’s state of intoxication combined with the consequences of a prior brain injury, the appellant could not have formed the intent to kill.

4                                   The appellant appealed the conviction on the grounds, inter alia, that his rights to counsel and silence had been violated, that the trial judge had improperly instructed the jury on the issues of capacity and intent, and that the trial judge had misled the jury on the correct standard of proof.  The Alberta Court of Appeal unanimously rejected all but the last of these grounds.  With a dissenting opinion on the issue of whether the trial judge misdirected the jury on the meaning of reasonable doubt, the appeal comes before this Court as of right pursuant to s. 691(1) (a) of the Criminal Code, R.S.C., 1985, c. C-46 .

III.   The Courts Below

A.  Alberta Court of Queen’s Bench (Sulatycky J.)

5                                   The trial judge provided the jury with the following explanation of the meaning of the words “beyond a reasonable doubt”:

     There is a basic rule of law which applies in this case, as it does in every criminal case.  It’s the presumption of innocence and that’s been spoken about already.  The accused is presumed to be innocent until the Crown, his accuser, has proven his guilt beyond a reasonable doubt.  The presumption of innocence and the burden of proof in a criminal case are inseparable.  The burden of proving the guilt of the accused person beyond a reasonable doubt rests with the Crown and that burden never shifts.  The Crown must prove each and every element of the offence beyond a reasonable doubt, and I will shortly discuss the elements of the offence with you, and it’s simple, but you have to remember that the reasonable doubt standard applies only to the elements of the offence and to the guilt of the accused. . . .

     Now, when I speak of a reasonable doubt, I use the words in their ordinary sense and not as a legal term having some special meaning.  By a reasonable doubt, we do not mean an imaginary or frivolous doubt which may be conjured up in one’s mind.  Reasonable doubt is an honest and fair doubt, a doubt based upon reason and common sense, a real doubt which arises from evidence and not from any conjecture or speculation.  It may also arise from a conflict in the evidence or from a lack of evidence.  A reasonable doubt is the sort of doubt for which you can give a logical and rational explanation, if you were asked to do so by a fellow juror in your jury room.  It that is [sic] degree of proof which convinces the mind and satisfies the conscience.  It [sic] that degree of proof which permits you, as a conscientious juror, to say I am sure.

     There is no burden on the accused to prove his innocence.  There is no burden on the accused to prove anything.  The burden is on the Crown to prove the guilt of the accused beyond a reasonable doubt.

                                                                   . . .

He [the accused] has offered an explanation for making those statements, and you are asked to accept his explanation as true, or you are asked to search your conscience and find that, because of his explanation, you cannot believe the statements beyond a reasonable doubt.  And, therefore, if you can’t believe them beyond a reasonable doubt, the accused is entitled to the benefit of that doubt on the truth of those statements.

6                                   After the jury had been charged and had retired to its deliberations, Sulatycky J. received submissions from defence counsel on the sufficiency of the charge.  Specifically, defence counsel was concerned about the judge’s description of the murder weapon, and the presentation of the evidence of the defence’s expert witness on the memory capability of the accused.  No concerns were raised about the judge’s explanation of the reasonable doubt standard.  As a result of these submissions, Sulatycky J. recalled and recharged the jury on the matter of the weapon and the evidence of the expert witness.

7                                   Sometime later during its deliberations, the jury submitted the following question to Sulatycky J.: “Does the prosecutor have to prove that the accused was sober enough to form an intent to kill?”  Sulatycky J. recalled the jury and provided it with the following answer:

The answer is relatively simple, and it is “yes,” but I have to go a little further than that.  I have to point out that “prove” in the sense that you’re using it here means prove beyond a reasonable doubt.  So, if you have any doubt on that issue, you have to give the benefit of the doubt to the accused.

For the offence of murder, the intent may be one of two kinds.  It may be the intent to kill, which is what you said here, or it may be the intent to cause bodily harm, knowing that it is likely to cause death, and being reckless, whether death ensues or not.

. . .

If you are not satisfied beyond a reasonable doubt that the accused had one of the two intents that are necessary to prove murder, and if you’re satisfied the accused, in fact, shot the victim, then you must return a verdict of not guilty of murder but guilty of manslaughter.  Does that answer the question?  All right.

B.  Alberta Court of Appeal (1998), 219 A.R. 19

(1) Hunt J.A. (Bracco J.A. concurring)

8                                          Hunt J.A., for the majority, accepted the decisions of Lifchus, supra, and R. v. Bisson, [1998] 1 S.C.R. 306, as authoritatively setting out the standard of review for jury instructions on the reasonable doubt standard of proof.  At the outset, she emphasized that the Lifchus review did not demand that any specific wording be used in the charge.  In addition, she noted that not every error would amount to a reversible error.  Rather, the centre of the analysis focuses on assessing whether the jury fully understood the requisite criminal standard of proof and, thus, considering the charge as a whole, the question to be asked is whether there is a reasonable likelihood that the jury misapprehended this standard of proof (para. 9).  With these principles in mind, Hunt J.A. reviewed each of the impugned aspects of the jury charge and ultimately held that she was not convinced that the jury had been left with a reasonable misapprehension about the correct standard of proof (para. 30).

(i)    “I use the words [reasonable doubt] in their ordinary sense and not as a legal term having some special meaning.”

9                                   Both the Lifchus and Bisson decisions involved jury charges where the trial judge had explained that the words “proof beyond a reasonable doubt” were to be understood in an “ordinary” or “everyday life” sense.  While in both cases, Cory J., for the Court, held that directing a jury to understand the criminal standard of proof in an everyday context was misleading and constituted a reversible error (Lifchus, at para. 23; Bisson, at paras. 7-8), Hunt J.A. interpreted Lifchus and Bisson to mean that a reversible error arose only when this “everyday” language was used in the absence of other instructions more properly explaining the criminal standard of proof (para. 11).  Since “a great deal more was said to the jury about the concept of reasonable doubt” (emphasis in original) in Sulatycky J.’s jury charge, and, since these additional instructions were consistent with the Lifchus guidelines, they acted to cure the inappropriate direction (paras. 12-16). 

(ii)   The use of the words “honest”, “fair”, and “real” to describe the concept of “reasonable doubt”.

10                               Hunt J.A. noted that Cory J. had cautioned against the use of any words other than “reasonable” when qualifying the concept of “doubt” because describing the requisite level of doubt with the words “serious”, “haunting”, and “substantial” might lead to the application of a varying standard of proof either higher or lower than the requisite criminal standard (Lifchus, at para. 26).  Viewing the charge as a whole, Hunt J.A. held that the qualifying words used by Sulatycky J. were far less problematic than those identified by Cory J. and were not, therefore, fatal errors (para. 20).

(iii)       “A reasonable doubt is the sort of doubt for which you can give a logical and    rational explanation, if you were asked to do so by a fellow juror in your jury room.”  

11                               On this point, Hunt J.A. was mindful of Cory J.’s statement that it is not essential to tell jurors that a reasonable doubt is one for which a reason can be supplied, since certain doubts are perhaps incapable of articulation (Lifchus, at paras. 29-30).  Cory J. held that “[i]t will suffice to instruct the jury that a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence” (Lifchus, at para. 30).  In Hunt J.A.’s view, Sulatycky J.’s provision of additional instructions relating to the need for an explanation to a fellow juror did not do “any harm”, and did not undermine the essence of what was required by Lifchus (at paras. 21-22).

(iv) “It is that degree of proof which permits you, as a conscientious juror, to say ‘I am sure’.”

12                               Hunt J.A. acknowledged that, without more, it was inappropriate to tell juries that they can convict if they are “sure” or “certain”, since it is important that a juror understand, in terms specific to the reasonable doubt standard, how to come to the requisite certainty.  Hence, it was important that words of “certainty” be used only after the reasonable doubt standard has been properly outlined to the jury (citing Lifchus, at paras. 33-34).  Hunt J.A. dismissed this ground, noting that in this case proper instructions had been provided to this jury before the use of the word “sure” (para. 23).

(v)   “It is that degree of proof which convinces the mind and satisfies the conscience.”

13                               Hunt J.A. turned to Lifchus’s caution that the use of morally expressive language might misdirect a jury away from an objective standard of proof.  Cory J. had stated that “if the standard of proof is explained as equivalent to “moral certainty”, without more, jurors may think that they are entitled to convict if they feel “certain”, even though the Crown has failed to prove its case beyond a reasonable doubt” (Lifchus, at para. 25 (emphasis added)).   Hunt J.A. applied this principle and concluded that, reading the charge as a whole, “much more” had been said and, as a result, the jury could not have misapprehended the standard as constituting a moral rather than a criminal standard of proof (para. 24).

(vi)       The absence of an explanation of the difference between the proof required  in a civil case (balance of probability) and that required in a criminal case.

14                               Cory J. specifically stated that it was important that jurors be told that they are not to apply a probabilities standard in the context of a criminal trial (Lifchus, supra, at para. 32).  Hunt J.A. found that this requirement arose from Cory J.’s concern that some jurors may have had experiences in civil cases and might inappropriately apply that standard in the criminal context.  Hunt J.A. considered it just as likely that a number of the jurors had no such experience and any discussion of the civil standard might well give rise to confusion.   In any case, Hunt J.A. held that the omission of these instructions was not serious in the context of the overall charge (para. 26).

(2) Berger J.A. (dissent on reasonable doubt in the jury charge)

15                               In reviewing the standard of review for jury instructions as to reasonable doubt, Berger J.A. acknowledged that Major J., in R. v. Malott, [1998] 1 S.C.R. 123, at para. 15, had stressed that the reasonable doubt charge did not entail a “standard of perfection”.  Berger J.A. also noted it would be inappropriate to apply the guidelines outlined in Lifchus on a “score card” basis.  In this regard, he stressed that “[s]ome errors will more profoundly impact upon a jury than will others”, especially if these errors are compounded by other problematic instructions (para. 51).  Consequently, when reviewing the charge as a whole, it is vital to consider whether other language or instructions actually work to negate any of the “taints so as to resurrect the charge to the requisite threshold” (para. 52).

16                               Berger J.A. agreed with the majority that use of the words “real”, “honest” and “fair” neither enhanced or diminished the validity of the jury charge.   However, having considered (i) the cumulative effect of the errors in this charge, and (ii) whether this cumulative level of potential misdirection was cured by other language in the charge, Berger J.A. held that it was reasonably likely that a jury misapprehended the requisite standard of proof.  Specifically, he stated, at para. 56:

The majority would seem to agree that “without more”, the charge to the jury would be fatally flawed.  The additional instructions, however, are insufficient to lessen the impact of the clear direction to the jury to use the words “reasonable doubt” in their ordinary sense.  For example, although jurors would be expected to comply with the judge’s additional instructions to decide the case on the evidence and to exclude imaginary or frivolous doubt from their consideration, they would still understand that reasonable doubt had ordinary and no special meaning.  It seems to me that the additional instructions, taken as a whole, do not repair the flaw in the “ordinary sense” lens.  The distortion remains. [Emphasis in original deleted.]

IV.  Issue

17                               The question to be answered is whether the majority of the Court of Appeal erred in finding that the instructions given by the trial judge to the jury were in substantial compliance with the principles enunciated in Lifchus to alleviate concerns that the jury may have misunderstood its task.  This assessment of the sufficiency of the charge is a function primarily exercised by courts of appeal and requires a detailed review of the charge as a whole in the full context of the trial:  the complexity of the factual issues to be resolved, their degree of contentiousness, the nature and quality of the evidence tendered by the parties, their respective positions at trial, as well as any concerns that may have been expressed by the jury in its questions after the charge.

V.   Analysis

18                               In Starr, supra, this Court’s decisions in Lifchus, supra, and Bisson, supra, were reviewed; in those cases, the Court addressed the appropriate manner of instructing a jury on the nature of the reasonable doubt standard.  In affirming these decisions, the majority in Starr held that “[a] court reviewing a pre-Lifchus jury charge must examine it to make sure that it was in substantial compliance with the principles set out in that case” (para. 237).  The adoption of the substantial compliance test reflects the fact that Lifchus did not introduce a formalistic approach to the review of the definition of reasonable doubt in charges to the jury.  The Court’s objective in Lifchus was to simplify jury charges by giving direction on the importance and definition of reasonable doubt and the standard of evidence required to find guilt.

19                               While it is not necessary for me to re-summarize that review in these reasons, I must emphasize the following principle, which is of great importance in deciding this appeal.  In Lifchus, Cory J. stressed that proper instructions on the standard of proof were a fundamental component of a fair trial, and consequently, there are important elements that should be included in any effective jury charge on reasonable doubt (para. 14).  In support of this principle, Cory J. provided a number of guidelines for what should be included and, similarly, what should be avoided in the charge (see Lifchus, at paras. 36-37).

20                               As was noted in Starr, at paras. 241-42:

The criminal standard of proof has a special significance unique to the legal process.  It is an exacting standard of proof rarely encountered in everyday life, and there is no universally intelligible illustration of the concept, such as the scales of justice with respect to the balance of probabilities standard.  Unlike absolute certainty or the balance of probabilities, reasonable doubt is not an easily quantifiable standard.  It cannot be measured or described by analogy.  It must be explained.  However, precisely because it is not quantifiable, it is difficult to explain.

In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities.  As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict.  Both of these alternative standards are fairly and easily comprehensible.  It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards.  The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt.

21                              In the present case, as in others in the past, the trial judge’s instructions to the jury did not communicate the requisite standard of proof to the letter of Lifchus.  Specifically, the jury was not told that the standard was not one of absolute certainty, and was not told that more was required than the probability of guilt.   Yet, while the omission of an explanation that clarifies the requisite standard of proof in a criminal trial constitutes a defect, on its own, it will not necessarily cause a jury charge to fail.   As was stated in Avetysan, supra, at para. 11, the absence of one of the required ingredients of Lifchus, or the inclusion of one of the inappropriate elements, “will not usually be determinative of the validity of the charge as a whole”. Rather, the instructions given by the trial judge must be considered as a whole, and in the overall context of the case, to determine whether there was substantial compliance with Lifchus.

22                               It is also important to emphasize what Major J. states in Avetysan, at para. 12:

It is worth stressing that the principles in Lifchus are to be applied in a manner that will encourage improvements in the wording of jury charges, but do not vitiate past charges where the language used, although no longer preferred, meets the substantially correct test.  A jury charge given before or after the Lifchus decision should not be faulted merely for imprecise language.  Rather, as was stated in Starr, supra, it should be reviewed to determine whether it substantially complies with the Lifchus principles.  As applied in Russell, supra, and Beauchamp, supra, the basic question remains:  Does the charge, read as a whole, give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof?  If not, the charge is adequate.

23                               The appellate assessment of substantial compliance with the Lifchus principles in cases where the trial judge did not have the benefit of that decision, and may have used, in parts of the charge, language that will likely be discontinued in the future or omitted parts recommended in Lifchus, is not a mechanical task.  Rather, it is a judgment call on whether the deficiencies in the charge fall below the Lifchus standard such as to cause serious concern about the validity of the jury’s verdict, and lead to the conclusion that the accused did not have a fair trial.

24                               The appellate review of substantial compliance with Lifchus is inevitably in a transitional phase. Instructions along the lines articulated in Lifchus, and applied in Starr, will assist future  juries in better understanding their tasks, and will ensure that the fact-finding process at trial truly respects the fundamental requirements of proof beyond a reasonable doubt.  In this respect, the failure of jury charges prior to Lifchus to reflect its principles cannot be taken to raise by that alone the spectre of an unfair trial or miscarriage of justice.  Having said that, courts in our country have been and will continue to be vigilant to ensure that unfair trials and miscarriages of justice do not go unremedied.

25                               In Starr, as in Avetysan, the cumulative effect of errors that were made on issues that went to the jury led us to the conclusion that a new trial was warranted.  In Starr, the major issue before the Court was that, in the view of the majority, the trial judge had improperly allowed inadmissible evidence.  In Avetysan, the trial judge failed to warn the jury that even if it disbelieved the accused, it could still entertain a reasonable doubt.  Here, without minimizing the concerns expressed by Berger J.A., I  am not persuaded that there is any reason to interfere with the majority’s disposition of the appeal, particularly when it thoroughly addressed the elements of the Lifchus principles.  The fact that the Court of Appeal unanimously dismissed all other grounds of appeal, and none of these other issues is before us, distinguishes this case from Starr and Avetysan.  Consequently, I cannot say that the accused’s trial was unfair in the sense that the integrity of the verdict was compromised.

VI.  Disposition

26                               For these reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant:  Batting, Der, Calgary.

Solicitor for the respondent:  Alberta Justice, Calgary.