••••••••••••••••••••••••••••••••R. v. Avetysan, [2000] 2 S.C.R. 745
Arthur Avetysan Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Avetysan
Neutral citation: 2000 SCC 56.
File No.: 27279.
2000: January 28; 2000: November 10.
Present: Major, Bastarache, Binnie, Arbour and
LeBel JJ.
on appeal from the court of appeal for newfoundland
Criminal law -- Charge to jury -- Reasonable doubt
-- Accused convicted of assault and extortion -- Whether pre-Lifchus charge on
reasonable doubt in substantial compliance with principles set out in Lifchus.
Criminal law -- Charge to jury -- Reasonable doubt
-- Different versions of events -- Whether trial judge adequately charged jury
on how to deal with conflicting evidence.
The appellant and another man were jointly tried for
assault and extortion. At trial, the testimony given by the complainant and by
both accused as to the events giving rise to the charges was contradictory. In
his charge, the trial judge, who did not have the benefit of this Court’s
decision in Lifchus, described reasonable doubt as being “real”,
“serious”, “doubt that is reasonable” and “not an imaginary doubt or a
fictitious doubt”. When dealing with the competing evidence, the trial judge
described the evidence in global terms, asking the jury to “assess the
evidence, all of the evidence” and he presented the jury with two options: it
could acquit if a reasonable doubt remained, or convict if all of the evidence
satisfied the jury beyond a reasonable doubt. He also explained that he had
compared the two versions of events given in testimony. The appellant was
convicted and the majority of the Court of Appeal dismissed his appeal from
conviction. While acknowledging that the charge on reasonable doubt did not
mimic Lifchus, the majority held that the standard was one of adequacy
and that this charge would not have misled the jury on the standard of proof
required. The majority also held that the jury was adequately charged on how
to deal with competing evidence. The issue raised by this appeal as of right
was whether the jury was properly instructed on these two points.
Held
(Bastarache J. dissenting): The appeal should be allowed and a new trial
ordered.
Per Major, Binnie,
Arbour and LeBel JJ.: In considering a pre-Lifchus charge, the test is
whether there was substantial compliance with the principles set out in Lifchus.
A charge should not be faulted merely for imprecise language. The principles
in Lifchus and Starr 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. 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? Here the charge was defective. The jury was
not told clearly that the standard of proof was more than a balance of
probabilities but less than absolute certainty. Likewise, the jury was not told
that it was required to acquit if it concluded only that the accused men were
“probably guilty”. As well, the jury was not told that “proof beyond a
reasonable doubt” is a special concept with a specific meaning in criminal
law. Further, there is also a risk that the words used by the trial judge to
describe “reasonable doubt” did not convey to the jurors that they are to
remain objective in determining whether the evidence amounts to proof beyond a
reasonable doubt. On an ancillary point, the charge did not warn the jury that
the burden of proof never shifts from the Crown. Further, while counsel’s
errors can be corrected by the trial judge in his charge, submissions by
counsel cannot remedy a defective charge.
The charge, when discussing how to deal with
conflicting evidence, suggested that the jury had to resolve the factual
question of what happened and may have left the jury with the impression that
it had to choose between the two versions of events. The trial judge should
have focussed the jury’s attention on a third alternative given in W. (D.) --
that the accused men could be acquitted even if their evidence was not believed
but a reasonable doubt remained as to their guilt. The jury as well should
have been warned not to convict automatically if it found the testimony of the
complainant was more credible than that of the accused men. There was some
risk that the jury misapprehended the requirement of proof beyond a reasonable
doubt in relation to the two irreconcilable versions of events. The admonition
to consider “all of the evidence” does not correct this failing.
Per Bastarache J.
(dissenting): The appeal should be dismissed for substantially the same
reasons as given by the majority of the Court of Appeal. A failure by the
trial judge to follow W. (D.) does not amount to a reversible
error, as long as the trial judge does not expressly instruct the jury that it
must choose between the accused’s evidence and the other version. The
determinative question is whether the jury understood that, even if it
disbelieved the accused, it could still acquit if it found the Crown had not
proved its case beyond a reasonable doubt. While it is preferable to give an
explicit direction that the accused could be acquitted even if his evidence was
not believed, there is no obligation to do so, as long as the trial judge does
not suggest that one version of events must be accepted by the jury. Here, a
review of the charge demonstrates that the jury understood that disbelief of
the accused men was not sufficient grounds for conviction. The jury was never
told that it had to pick between two versions of events and the charge made it
clear to the jury that if the defence evidence leaves the jury in a state of
doubt after considering it in the context of the whole of the evidence, then
the jury is to acquit. Finally, there is no reason to overturn the majority of
the Court of Appeal on the application of Lifchus.
Cases Cited
By Major J.
Applied: R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. W. (D.),
[1991] 1 S.C.R. 742; referred to: R. v. Starr, [2000] 2 S.C.R.
144, 2000 SCC 40; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R.
v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54; R. v. Bisson, [1998]
1 S.C.R. 306; R. v. S. (W.D.), [1994] 3 S.C.R. 521.
By Bastarache J. (dissenting)
R. v. Lifchus, [1997] 3
S.C.R. 320; R. v. W. (D.), [1991] 1 S.C.R. 742; R. v.
Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v. S. (W.D.),
[1994] 3 S.C.R. 521.
APPEAL from a judgment of the Newfoundland Court of
Appeal (1999), 174 Nfld. & P.E.I.R. 34, 533 A.P.R. 34, [1999] N.J. No. 104
(QL), dismissing the accused’s appeal from his convictions on charges of
assault and extortion. Appeal allowed and new trial ordered,
Bastarache J. dissenting.
Derek Hogan, for the
appellant.
Wayne Gorman, for the
respondent.
The judgment of Major, Binnie, Arbour and LeBel JJ.
was delivered by
1
Major J. – This appeal
once again raises the adequacy of the trial judge’s charge to the jury and the
standard applied by the court of appeal in reviewing it. Trial judges’
charges to juries vary. No particular magical incantation is required. Judges
properly have a wide discretion in what they tell the jury but there are,
depending on the offence alleged, certain things that the jury must be told.
The language used to obtain the result is left to the trial judge. If the
charge adequately informs the jury what it must consider, appeal courts will
not interfere simply because they feel the charge could have been better.
2
In Canada, the courts of appeal dispose of the vast majority of criminal
and civil appeals. In assessing the conclusions of courts of appeal, this
Court will not interfere if they have determined, following paras. 23 and 24
of R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55, that regardless of
the language used the instructions were in substantial compliance with the
existing law. Only if the court of appeal has departed from established
principles will further review by this Court be triggered.
3
In this appeal there were two challenges to the jury charge. They fall
into the subject matter covered in R. v. Lifchus, [1997] 3 S.C.R. 320,
and R. v. W. (D.), [1991] 1 S.C.R. 742. Lifchus is authority on
what the jury must be told on the standard of proof beyond a reasonable doubt.
W. (D.) dictates what instructions are necessary when the jury is faced
with competing evidence on “what happened”. It is significant that here we are
dealing with a case similar to R. v. Starr, [2000] 2 S.C.R. 144, 2000
SCC 40, in that the charge is challenged on a number of fronts, as contrasted
with Russell, supra, and R. v. Beauchamp, [2000] 2 S.C.R.
720, 2000 SCC 54, where all that was at issue was the definition of reasonable
doubt given by the trial judge. In this appeal, both errors relate to the
directions given to the jury and must have had an impact on the jury’s
assessment of whether a reasonable doubt existed; therefore, at issue is the
charge in its entirety. If the jury was properly instructed, the specific
words in the charge need not mimic Lifchus and W. (D.).
4
In my respectful opinion, the charge in this case is flawed and a new
trial is necessary.
I. Facts
5
The appellant, Arthur Avetysan, was convicted of extortion and
assault. Avetysan was tried jointly with Oleg Velitchko, who was convicted of
the same offences and who discontinued his appeal to this Court before the
release of this decision. Slivko Paval Valerievich (“the complainant”) was a
Russian citizen seeking refugee status in St. John’s, Newfoundland. He
testified that the appellant and Velitchko entered his apartment on October 17,
1996, and assaulted him over the course of two or three hours. According to
the complainant, the appellant and Velitchko demanded that he pay $1,000 within
three days; they threatened to kill him and harm his wife and child in Russia
if he did not comply.
6
The appellant and Velitchko, however, described a completely different
version of events. In their account, they were invited into the apartment
where they had a friendly conversation about immigration, sports and
unemployment. The appellant and Velitchko said no assault took place and no
threats were made. The jury convicted the appellant and Velitchko.
7
The trial judge’s charge to the jury was given prior to the 1997 Lifchus decision.
He told the jury:
The presumption of innocence — In a criminal case
in this country, the accused is presumed to be innocent until the Crown has
proven guilt beyond a reasonable doubt. It is not the responsibility of the
accused to establish or demonstrate or prove their innocence. If the Crown
fails to prove guilt beyond a reasonable doubt, you must acquit the accused.
What is reasonable doubt? A reasonable doubt is just that, a doubt that is
reasonable. I usually describe it as a real doubt, if you got a real doubt, a
serious doubt. It is not an imaginary doubt or a fictitious doubt which is
used by a person to avoid their responsibility.
Later in his
charge, the trial judge said:
So the evidence, members of the jury, is fairly — It’s not a complex
matter. It’s fairly simple and straightforward. What it boils down to, are
you satisfied beyond a reasonable doubt that this man was threatened and
assaulted in his apartment that evening? You assess the evidence, all of the
evidence. It’s not a case of picking little pieces here and there. It’s a
case of, I suggest to you — You take all of the evidence. You take the whole
evidence and you look at it and you determine on the whole of the evidence
whether or not you are satisfied beyond a reasonable doubt as to the guilt of
these two accused persons. If you have a reasonable doubt, then you must
resolve it in favour of the two accused. If, however, you are satisfied beyond
a reasonable doubt as to their guilt that they assaulted and attempted to
extort monies from Mr. Slivko, it is your duty to convict the accused.
8
On appeal, the Supreme Court of Newfoundland (Court of Appeal) concluded
that the trial judge’s charge to the jury was sufficient: (1999), 174 Nfld.
& P.E.I.R. 34. The majority acknowledged that the charge did not mimic Lifchus
in its description of the concept of “proof beyond a reasonable doubt”.
However, they said the standard is one of adequacy, and this charge would not
have misled the jury on the standard of proof required. On the second issue,
the majority likewise concluded that the jury was adequately charged as to how
to consider two different versions of events. Green J.A. dissented; this is an
appeal as of right.
II. Analysis
9
The approach to explaining reasonable doubt in a jury charge is, as a
result of Lifchus, supra, settled. The trial judge has
flexibility in instructing the jury on reasonable doubt, and no particular
language is necessary. The same can be said of the W. (D.) instruction
on conflicting evidence. Appeal courts will not interfere when a jury has been
adequately instructed. But adequate instructions require that certain
standards be met.
A. The
Jury Charge on Reasonable Doubt
10
This Court has applied the principles of Lifchus in a number of
appeals: Starr, supra; Russell, supra; and Beauchamp,
supra. Cory J. summarized the necessary ingredients of a jury charge in
Lifchus, at paras. 36-38. It should be explained to the jury, in
substance, that:
·
the standard of proof beyond a reasonable doubt is inextricably
intertwined with that principle fundamental to all criminal trials, the
presumption of innocence;
·
the burden of proof rests on the prosecution throughout the trial and
never shifts to the accused;
·
a reasonable doubt is not a doubt based upon sympathy or prejudice;
·
rather, it is based upon reason and common sense;
·
it is logically connected to the evidence or absence of evidence;
·
it does not involve proof to an absolute certainty; it is not proof
beyond any doubt nor is it an imaginary or frivolous doubt; and
·
more is required than proof that the accused is probably guilty — a jury
which concludes only that the accused is probably guilty must acquit.
On the other hand, certain references to the
required standard of proof should be avoided. For example:
·
describing the term “reasonable doubt” as an ordinary expression which
has no special meaning in the criminal law context;
·
inviting jurors to apply to the task before them the same standard of
proof that they apply to important, or even the most important, decisions in
their own lives;
·
equating proof “beyond a reasonable doubt” to proof “to a moral
certainty”;
·
qualifying the word “doubt” with adjectives other than “reasonable”,
such as “serious”, “substantial” or “haunting”, which may mislead the jury; and
·
instructing jurors that they may convict if they are “sure” that the
accused is guilty, before providing them with a proper definition as to the
meaning of the words “beyond a reasonable doubt”.
A charge which is consistent with the principles
set out in these reasons will suffice regardless of the particular words used
by the trial judge. [Emphasis in original.]
11
The review of the charge for compliance with these principles is not a
mechanical exercise but one of substance. The fact that one of the items
mentioned in the first group was absent from the charge, or that an item from
the second group was included in it, will not usually be determinative of the
validity of the charge as a whole.
12
Starr, supra, stated that in considering a jury charge
given prior to the release of Lifchus, the test is whether there was
substantial compliance with the principles set out in that case. 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.
13
It is settled that the standard of proof beyond a reasonable doubt is a
special standard. It requires more than proof on a balance of probabilities,
or probable guilt, but less than absolute certainty on the part of jurors. In Lifchus,
at para. 14, Cory J. held that jurors “must be aware that the standard of proof
is higher than the standard applied in civil actions ... yet less than proof to
an absolute certainty”. In that same passage, he highlighted the importance of
this principle, stating: “No matter how exemplary the directions to the jury
may be in every other respect if they are wanting in this aspect the trial must
be lacking in fairness”. See also Starr, at paras. 241-42. (In
situating the criminal standard of proof, “it falls much closer to absolute
certainty than to proof on a balance of probabilities”: Starr, at para.
242, per Iacobucci J.)
14
The charge in this case was defective. The jury was not clearly told
that the standard of proof was more than a balance of probabilities but less
than absolute certainty. Likewise, the jury was not told that it was required
to acquit if it concluded only that the accused men were “probably guilty”, a
standard that Cory J. in Lifchus found could affect the fairness of
trial.
15
As well, Lifchus is emphatic that the standard of proof required
to convict a person of a criminal offence is a special one and it must be
described as such. It is not an ordinary standard and should not be explained
in a manner that directs jurors to apply the standard they employ for everyday
— or even important — decisions: see R. v. Bisson, [1998] 1 S.C.R.
306. The charge here failed to convey the special character of the criminal
standard of proof. The jury was not told that “proof beyond a reasonable
doubt” is a special concept with a specific meaning. The jury was told that “A
reasonable doubt is just that, a doubt that is reasonable”. This phrase
implied that the words were used in an everyday, ordinary sense, rather than as
a special phrase with a specific meaning in criminal law. That being so, I
conclude that the jury charge was defective in that it did not clearly convey
that the terms reasonable doubt have special meaning in criminal law.
16
Lifchus also states that the charge should tell the jurors that
they are to remain objective in determining whether the evidence amounts to
proof beyond a reasonable doubt. That is, jurors should not be invited to
supply an individual meaning for the concept of proof beyond a reasonable doubt.
This is related to the point that the standard is a special one. It is also
related to the idea that jurors must not determine guilt based on an individual
sense of morality rather than on a dispassionate review of the evidence: Lifchus,
at para. 25. In this case, the suggestion that the words “reasonable doubt”
were used in their ordinary sense risked the possibility that jurors would then
supply an individual meaning to the content of this standard of proof. In
addition, the trial judge used adjectives to modify “doubt”, such as “serious”
and “real”. Such modifiers were disproved of in Lifchus because they
could produce variance among jurors as to what the standard requires.
17
On an ancillary point, the trial judge’s charge to the jury linked the
standard of proof beyond a reasonable doubt to the presumption of innocence,
but it did not warn that the burden of proof never shifts from the Crown.
B.
The Charge on Credibility and Resolving the Factual Mystery of “What
Happened”
18
The appellant takes issue with the jury charge for a second reason: he
says it failed to explain properly to the jury how it should assess
credibility, in a situation where there were two irreconcilable versions of
events described in testimony.
19
Cory J. addressed this situation in two separate but similarly named
cases: W. (D.), supra, and R. v. S. (W.D.), [1994] 3
S.C.R. 521. In W. (D.), at pp. 757-58, he said:
In a case where credibility is important, the trial
judge must instruct the jury that the rule of reasonable doubt applies to that
issue. The trial judge should instruct the jury that they need not firmly
believe or disbelieve any witness or set of witnesses. Specifically, the trial
judge is required to instruct the jury that they must acquit the accused
in two situations. First, if they believe the accused. Second, if they do not
believe the accused’s evidence but still have a reasonable doubt as to his
guilt after considering the accused’s evidence in the context of the evidence
as a whole. . . .
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. [Emphasis in original.]
In the other
case, S. (W.D.), at p. 533, Cory J. pointed out that such instructions
need not be given “word for word as some magic incantation”. The 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.
20
This appeal parallels W. (D.), in the sense that the jury was
left with two contradictory versions of events. The complainant testified that
he was assaulted and threatened over a two- or three-hour duration by the
appellant and Velitchko. The appellant and Velitchko both testified that they
merely had a friendly conversation in the complainant’s apartment. These
versions were diametrically opposed but the W. (D.) instruction was not
given to the jury. The trial judge described the evidence in global terms,
asking the jury to “assess the evidence, all of the evidence”. Elsewhere in
his charge, the trial judge remarked that the jury had heard “two versions” of
events. He reviewed the two versions and plainly expressed his preference for
the evidence of the complainant, whom he referred to as “a straightforward
witness”. He presented the jury with two options: it could acquit if a
reasonable doubt remained, or convict if the evidence satisfied the jury beyond
a reasonable doubt. He also explained his own reasoning by saying that he had
“compare[d] the evidence of the accused and the evidence of [the
complainant]”. This last explanation suggested that the jury, too, should
“compare” the two versions of events and choose one.
21
I agree with Green J.A. that the charge on this point fell into the trap
of suggesting that the jury had to resolve the factual question of what
happened. The jury was faced with two irreconcilable versions of events. It
may have seemed to the jury that it bore the responsibility for figuring out
“which version” to believe. It may logically have seemed an “either/or”
proposition. It was important that the trial judge focus the jury’s attention
on the third alternative given in W. (D.) — that the accused men could
be acquitted even if their evidence was not believed but a doubt remained. The
jury may have been left with the impression that it had to choose which
competing version of events it would accept. The jurors should have had the
third option of W. (D.) left to them.
22
The jury should have been told that it could acquit even if it did not
believe the testimony of the two accused men provided it was left with
reasonable doubt about the guilt of the accused on the evidence that it
accepted. The jury should have been warned not to convict automatically if it
found the testimony of the complainant was more credible than that of the
appellant and Velitchko. There was some risk that the jury misapprehended the
requirement of proof beyond a reasonable doubt in relation to the two
irreconcilable versions of events. The admonition to consider “all of the
evidence” does not correct this failing: S. (W.D.), at p. 535.
III. Conclusion
23
The jury charge in this case, when read as a whole, left open the
likelihood that the jury misapprehended the meaning of “proof beyond a
reasonable doubt” and its application to the two versions of events.
Ultimately, there remains a risk of conviction on a standard of proof other
than “beyond a reasonable doubt”.
24
The respondent Crown argued that submissions by Crown counsel during the
trial, with respect to the reasonable doubt standard, might have remedied the
defective charge. That argument fails. The fact that Crown counsel might have
described the reasonable doubt standard properly will not correct the trial
judge’s failure to do so. The long-established rule is that the trial judge
instructs the jury on questions of law. The trial judge bears that
responsibility, and while counsel’s errors can be corrected by the trial judge
in his charge, the opposite is not true.
25
The case law is clear that a new trial will be necessary when the jury
may have been under a misapprehension as to the correct standard of proof and
the correct approach to conflicting evidence. The rationale has its source in
the principle of trial fairness. See Lifchus, per Cory J. at
para. 13:
The Marshall, Morin and Milgaard cases serve as a constant reminder
that our system, with all its protections for the accused, can still make
tragic errors. A fair trial must be the goal of criminal justice. There
cannot be a fair trial if jurors do not clearly understand the basic and
fundamentally important concept of the standard of proof that the Crown must
meet in order to obtain a conviction.
IV. Disposition
26
The appeal is allowed and a new trial is ordered.
The following are the reasons delivered by
27
Bastarache J. (dissenting)
— In this appeal, the appellant asks this Court to overturn his convictions
for assault and extortion based on the retrospective application of R. v.
Lifchus, [1997] 3 S.C.R. 320, and an extension of the holding in R. v.
W. (D.), [1991] 1 S.C.R. 742. I would dismiss the appeal, for
substantially the same reasons as the majority of the Court of Appeal.
28
In W. (D.), Cory J. describes, at pp. 757-58, how a jury
should handle two diametrically opposed versions of events given in testimony:
In a case where credibility is important, the trial
judge must instruct the jury that the rule of reasonable doubt applies to that
issue. The trial judge should instruct the jury that they need not firmly
believe or disbelieve any witness or set of witnesses. Specifically, the trial
judge is required to instruct the jury that they must acquit the accused
in two situations. First, if they believe the accused. Second, if they do not
believe the accused’s evidence but still have a reasonable doubt as to his
guilt after considering the accused’s evidence in the context of the evidence
as a whole. . . .
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.
.
. .
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: R. v. Thatcher, [[1987] 1 S.C.R. 652].
[Emphasis in original.]
In asserting
that the trial judge must follow this procedure where the evidence pits the
accused’s version of a story against a competing version, the appellant seems
to overlook the final paragraph reproduced above. It quite clearly indicates
that a failure by the trial judge to follow W. (D.) does not amount
to a reversible error, as long as the trial judge does not expressly instruct
the jury that it must choose between the accused’s evidence and the other version.
In R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 533, Cory J.
affirmed that the W. (D.) procedure was not meant to be followed
“word for word as some magic incantation”. In my view, the determinative
question is whether the jury understood that, even if it disbelieved the
accused, it could still acquit if it found the Crown had not proved its case
beyond a reasonable doubt.
29
A review of the charge demonstrates that the jury understood that
disbelief of the accused was not sufficient grounds for conviction. At the
outset of his charge, the trial judge:
(1) established that the accused was presumed
innocent;
(2) stated the accused had no responsibility to
establish, demonstrate, or prove his innocence;
(3) stated that if the Crown failed to prove
guilt beyond a reasonable doubt, the accused must be acquitted;
(4) stated that it was open to the jury to
accept only a part of a witness’s testimony and to reject other parts.
He then stated
that “two versions” of the meeting were in evidence and proceeded to summarize
each of these. He concluded by saying:
So the evidence, members of the jury . . . – It’s not a complex
matter. It’s fairly simple and straightforward. What it boils down to, are
you satisfied beyond a reasonable doubt that this man was threatened and
assaulted in his apartment that evening? You assess the evidence, all of the
evidence. It’s not a case of picking little pieces here and there. It’s a
case of, I suggest to you -- You take all of the evidence. You take the whole
evidence and you look at it and you determine on the whole of the evidence
whether or not you are satisfied beyond a reasonable doubt as to the guilt of
these two accused persons. If you have a reasonable doubt, then you must
resolve it in favour of the two accused. If, however, you are satisfied beyond
a reasonable doubt as to their guilt that they assaulted and attempted to
extort monies from Mr. Slivko, it is your duty to convict the accused.
The appellant
argues that the jury should have been told that it could acquit even if it did
not believe the testimony of the two accused men. While this specific
instruction was not given in express terms by the trial judge, I am confident
that it was quite clear to the jury from the context of the charge as a whole.
Hence, there was no danger that the jury would automatically convict if it
concluded that the complainant was more credible than the appellant or
Velitchko. The trial judge presented the question clearly: it could acquit if
a reasonable doubt remained, or convict if the evidence satisfied the jury
beyond a reasonable doubt. There is nothing amiss with this direction.
30
The charge here did not suggest that the jury had to resolve a factual
mystery as to what happened. The jury was never told that it had to pick
between two versions of events and consequently, when the charge is viewed as a
whole, there is little risk that the jury would have believed it bore the
responsibility for figuring out “which version” it should believe. While I
accept that it is preferable to give an explicit direction that the accused
could be acquitted even if his or her evidence were not believed, there is no
obligation to do so, as long as the trial judge does not suggest that one
version of events must be accepted by the jury.
31
In my view, the difference in facts between the present case and S. (W.D.)
easily distinguishes this case. First, in that case, the error in the charge
occurred in direct response to a question from the jury, magnifying the
prejudice to the accused; see W. (D.), supra. Second, the
direction in S. (W.D.) to choose between the two versions was quite
explicit while here there was no specific suggestion that a choice had to be
made. Third, the direction to consider the existence of a reasonable doubt in
the context of “all of the evidence” was meaningful here since, unlike in S. (W.D.),
there was corroborating evidence. Thus, the instruction to consider whether, on
“all of the evidence”, the Crown had proven guilt beyond a reasonable doubt
mitigated the trial judge’s general reference to “two versions” of events (see S. (W.D.),
supra, at p. 535).
32
In the circumstances of this case, the trial judge’s failure to follow
the exact phraseology of W. (D.) is not a reversible error since
the charge as a whole established the proper burden and standard of proof. The
crucial error that motivated a response in W. (D.) (the instruction
that the jury must choose between the accused’s and complainant’s evidence) was
not present here. On the charge as a whole the burden and standard were
sufficiently clear, thus satisfying the passage in W. (D.) at
issue. The warning set out by McLachlin J. (as she then was) in S. (W.D.),
supra, at pp. 544-45, bears repeating:
. . .when scholars of the criminal law themselves argue about
how the second branch of the W. (D.) test should be phrased, it
would be wrong to reverse a conviction merely because a particular formula was
not repeated verbatim. We must remember that jurors are laypeople, not
lawyers, and do not hear and interpret each and every word of the judge’s
charge with all the legal baggage that a career in the law may engender. An
overly legalistic focus on the strict text of the judge’s charge does not take
this courtroom reality into account, nor accommodate the fact that the judge
may have to formulate his or her remarks in various ways in order to make the
jury understand that it must acquit regardless of what evidence it may accept
or reject if it is left with a reasonable doubt when considering that evidence
as a whole. What is required, to quote Sopinka J. in R. v. Morin,
[1988] 2 S.C.R. 345, at p. 362, is that the “charge alerts [the jury] to the
fact that, if the defence evidence leaves them in a state of doubt after
considering it in the context of the whole of the evidence, then they are to
acquit”.
Here the
charge made it clear to the jury that if the defence evidence leaves it in a
state of doubt after considering it in the context of the whole of the
evidence, then it is to acquit.
Disposition
33
Because I find no reason to overturn the majority of the Court of Appeal
on the application of Lifchus (as in the unanimous decision of our Court
in R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55, released
concurrently), and for the reasons expressed above with regard to the
application of W. (D.), I would dismiss the appeal and uphold the
conviction.
Appeal allowed and new trial ordered, Bastarache J. dissenting.
Solicitor for the appellant: Derek Hogan, St. John’s.
Solicitor for the respondent: The Department of Justice,
St. John’s.