R. v. Biniaris, 2000 SCC 15, [2000] 1 SCR 381

R. v. Biniaris, [2000] 1 S.C.R. 381

Her Majesty The Queen                                                                   Appellant

v.

John Biniaris                                                                                      Respondent

and

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Quebec,

the Criminal Lawyers’ Association (Ontario),

the Innocence Project, the Association in Defence

of the Wrongly Convicted and

the Criminal Trial Lawyers Association of Alberta                         Interveners

Indexed as:  R. v. Biniaris

Neutral citation:  2000 SCC 15.

File No.:  26570.

1999:  October 5, 6; 2000:  April 13.

Present:  Lamer C.J.^* and L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.

on appeal from the court of appeal for british columbia

Criminal law -- Appeals -- Supreme Court -- Rights of appeal from substituted verdict -- Accused convicted of second degree murder -- Court of Appeal dismissing accused’s appeal but substituting conviction for manslaughter -- Whether Court of Appeal set aside conviction thereby providing Crown with right of appeal under s. 693(1)  of Criminal Code  --  Whether Court of Appeal affirmed conviction thereby providing accused with right of appeal from conviction on substituted offence under s. 691(1)  of Criminal Code  -- Whether there are co-existing rights of appeal for both accused and Crown from court of appeal order for substituted verdict -- Criminal Code, R.S.C., 1985, c. C-46, ss. 691(1) , 693(1) .

Criminal law -- Appeals -- Supreme Court -- Question of law -- Whether reasonableness of verdict involves question of law within meaning of ss. 691(1)  and 693(1)  of Criminal Code  -- Criminal Code, R.S.C., 1985, c. C-46, ss. 691(1) , 693(1) .

Criminal law -- Reasonableness of verdict -- Standard of review -- Standard of review applicable by reviewing court in examining reasonableness of verdict -- Whether Yebes should be reaffirmed -- Whether verdict was unreasonable -- Criminal Code, R.S.C., 1985, c. C-46, s. 686(1) (a)(i).

The accused was charged with second degree murder.  The accused and S, a young offender, participated in a senseless and violent beating which left a man dead.  S threw the deceased against a plate glass window, then propelled him to the ground, causing the deceased to strike the back of his head on the pavement.  Once the deceased was on the ground, S straddled the deceased’s thighs and began to punch the deceased in the stomach.  The accused entered into the fray, ran up to the deceased and stomped on his forehead a number of times with sufficient force to leave tread marks from his shoes on the deceased’s forehead.  The Crown’s expert testified that the fatal injuries to the deceased’s brain resulted from the accused’s actions.  The defence expert was of the opinion that the deceased had sustained lethal brain injuries when S caused him to strike his head on the pavement, fracturing the thickest bone in the skull.  During the course of the trial, after consulting with the defence expert and another expert, the Crown’s expert also came to share the view that the fatal injuries were attributable to the actions of S.  The Crown’s expert was recalled and testified to this effect.  In its closing submissions to the jury, the Crown maintained its original theory and invited the jury to rely on its common sense and to convict the accused of second degree murder as the perpetrator of the fatal injuries, notwithstanding the medical evidence to the contrary.  The Crown also suggested to the jury that it could find the accused guilty of second degree murder as S’s co‑perpetrator or accomplice.  The trial judge charged the jury that they should proceed carefully before rejecting the ultimately unanimous expert evidence regarding causation.  The accused was convicted of second degree murder.  The majority of the Court of Appeal dismissed the accused’s appeal but substituted a conviction for manslaughter on the basis that the jury’s verdict was unreasonable and unsupported by the evidence.  The dissenting judge concluded that it was not unreasonable for the jury to convict the accused of second degree murder.

Held:  The appeal should be allowed.

While the language of s. 686(1) (b)(i) and (3)  of the Criminal Code  does not contain an explicit direction to a court of appeal to set aside a conviction, when a court of appeal dismisses the accused’s appeal from the original conviction by substituting a verdict on another count or part of the indictment, the court of appeal implicitly sets aside the conviction by the trial court and also implicitly affirms the new conviction on the included offence. Thus, there are co‑existing rights of appeal for both the accused, under s. 691 , and the Crown, under s. 693 , to this Court from a court of appeal order for a substituted verdict. 

This Court, in Yebes, decided unequivocally that the reasonableness of a verdict, within the meaning of s. 686(1) (a)(i) of the Criminal Code , involves a decision on a question of law, and as such gives rise to a further appeal to this Court.  Whether a conviction can be said to be unreasonable, or not supported by the evidence, imports in every case the application of a legal standard.  As a jurisdictional issue of appellate access, the application of that legal standard is enough to make the question a question of law.  The conclusion that a finding by an appeal court that a verdict is unreasonable or cannot be supported by the evidence raises a question of law is in harmony with the overall intent and spirit of the two‑tier criminal appeal structure in the Criminal Code , even if there are some statutory constructions that may lend support to a different conclusion. 

The test set out in Yebes continues to be the binding test that appellate courts must apply in determining whether the verdict of the jury is unreasonable or cannot be supported by the evidence. A dissent on the issue of whether the verdict was reasonable is a dissent on a question of law, whether the dissent is based on the articulation of the applicable test or on its actual application to the particular circumstances of the case.  The proper test is “whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered”.  In embarking on the exercise mandated by s. 686(1) (a)(i), the reviewing court must engage in a thorough re‑examination of the evidence and bring to bear the weight of its judicial experience to decide whether, on all the evidence, the verdict was a reasonable one.  It is not sufficient for the reviewing court to simply take a different view of the evidence than the trier of fact.  Nor is it sufficient for the court of appeal to refer to a vague unease, or a lingering or lurking doubt based on its own review of the evidence.  While a “lurking doubt” may be a powerful trigger for thorough appellate scrutiny of the evidence, it is not, without further articulation of the basis for such doubt, a proper basis upon which to interfere with the findings of the trier of fact.  Rather, the appeal court, if it is to overturn the verdict, must articulate the basis upon which it concludes that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence.

In the present case, the “real question to be faced by the jury” was whether the accused intended to cause the victim’s death or to cause bodily harm which he knew was likely to cause death and was reckless as to whether death ensued or not.  The reasons of the majority of the Court of Appeal focused principally on the issue of causation and did not contain a thorough review and re‑examination of the evidence as it relates to intent.  The determination of the intent or foresight of a person at the time of his participation in a homicide is often a difficult question of fact. The trial judge thoroughly canvassed all the evidence adduced on the issue of intent in her charge to the jury.  There is nothing in the compendium of accumulated judicial experience that should cause concern that the jury went astray in its review and assessment of the evidence.  Even though it might have been reasonable for the jury to conclude otherwise, it was perfectly reasonable for the jury to be satisfied beyond a reasonable doubt that the accused had acted with the requisite intent for murder.  In light of his responsibility as a party, the fact that the specific blows inflicted by the accused were not the ones which were the immediate cause of death was of no significance.  In overturning the verdict of the jury as unreasonable, the majority of the Court of Appeal was also concerned about the change in the Crown’s theory of the case and the jury’s ability to appreciate the nuances of all of this, as well as about the fact that the case was “highly emotional by reason of these outrageous assaults”.  The concerns of the majority of the Court of Appeal were insufficient to set aside the verdict of the jury as unreasonable.  They were more than adequately addressed by the trial judge, whose charge to the jury was instructive and fair.  The verdict was one that this properly instructed jury, acting judicially, could reasonably have rendered, and it should be restored.

Cases Cited

Followed:  R. v. Yebes, [1987] 2 S.C.R. 168; referred to: R. v. Molodowic, [2000] 1 S.C.R. 420, 2000 SCC 16; R. v. A.G., [2000] 1 S.C.R. 439, 2000 SCC 17;  R. v. Nantais, [1966] 2 O.R. 246; R. v. McGloan, [1976] 2 S.C.R. 842; Mahoney v. The Queen, [1982] 1 S.C.R. 834; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Sunbeam Corporation (Canada) Ltd. v. The Queen, [1969] S.C.R. 221; Lampard v. The Queen, [1969] S.C.R. 373; Ciglen v. The Queen, [1970] S.C.R. 804; R. v. B. (G.), [1990] 2 S.C.R. 57; R. v. H. (D.S.) and N. (J.D.), [1994] 2 S.C.R. 392, rev’g (1994), 90 C.C.C. (3d) 564; R. v. Blundon (1993), 84 C.C.C. (3d) 249; Schuldt v. The Queen, [1985] 2 S.C.R. 592; R. v. Jensen (1996), 106 C.C.C. (3d) 430, appeal quashed, [1997] 1 S.C.R. 304; R. v. Osvath (1996), 87 O.A.C. 274, appeal quashed, [1997] 1 S.C.R. 7; R. v. Hamilton, [1997] Q.J. No. 67 (QL), appeal quashed, [1997] S.C.C.A. No. 105 (QL); Corbett v. The Queen, [1975] 2 S.C.R. 275; R. v. Burke, [1996] 1 S.C.R. 474; R. v. Reitsma, [1998] 1 S.C.R. 769, rev’g (1997), 97 B.C.A.C. 303; R. v. O’Connor (1998), 123 C.C.C. (3d) 487; R. v. Keeper (1993), 88 Man. R. (2d) 156; R. v. Malcolm (1993), 81 C.C.C. (3d) 196; R. v. Tat (1997), 117 C.C.C. (3d) 481; R. v. N.D., [1993] O.J. No. 2139 (QL); R. v. C.V., [1993] O.J. No. 1512 (QL); R. v. L. (J.H.H.P.) (1992), 75 C.C.C. (3d) 165; R. v. Vaillancourt (1999), 136 C.C.C. (3d) 530.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, ss. 21(1) , 675(1) (a), 676(1) (a) [am. 1997, c. 18, s. 93], 677 [repl. 1994, c. 44, s. 67], 686(1) [am. c. 27 (1st Supp.), s. 145; am. 1991, c. 43, s. 9 (Sch., item 8)], (3) [rep. & sub. c. 27 (1st Supp.), s. 145], (4) [am. idem; am. 1999, c. 5, s. 26], 691(1) [am. c. 34 (3rd Supp.), s. 10], 693(1) [rep. & sub. c. 27 (1st Supp.), s. 146; c. 34 (3rd Supp.), s. 12].

APPEAL from a judgment of the British Columbia Court of Appeal (1998), 104 B.C.A.C. 203, 170 W.A.C. 203, 124 C.C.C. (3d) 58, [1998] B.C.J. No. 576 (QL), dismissing the accused’s appeal from his conviction on a charge of second degree murder and substituting a verdict of manslaughter.  Appeal allowed.

William F. Ehrcke, Q.C., and Kate Ker, for the appellant.

Gil D. McKinnon, Q.C., and Peter J. Wilson, for the respondent.

Robert J. Frater and Morris Pistyner, for the intervener the Attorney General of Canada.

Robert Kelly, for the intervener the Attorney General for Ontario.

Carole Lebeuf and Maurice Galarneau, for the intervener the Attorney General of Quebec.

Frank R. Addario, for the intervener the Criminal Lawyers’ Association (Ontario).

Marlys A. Edwardh, for the intervener the Innocence Project.

Melvyn Green, for the intervener the Association in Defence of the Wrongly Convicted.

Written submissions only by Marvin R. Bloos, for the intervener the Criminal Trial Lawyers Association of Alberta.

The judgment of the Court was delivered by

Arbour J. --

I.  Introduction

1                                   This appeal was heard together with R. v. Molodowic, [2000] 1 S.C.R. 420, 2000 SCC 16, and R. v. A.G., [2000] 1 S.C.R. 439, 2000 SCC 17.  In this trilogy, the Court was asked to reconsider its decision in R. v. Yebes, [1987] 2 S.C.R. 168, and, in particular, to decide two issues of general application.  First, whether the reasonableness of a verdict involves a question of law, within the meaning of ss. 691  and 693  of the Criminal Code, R.S.C., 1985, c. C-46 , so as to permit a further appeal to this Court from a decision by a provincial appellate court, and, second, what standard of review must be applied by the reviewing court in examining the reasonableness of a verdict.  Each case involved, of course, an application of that standard to the facts of that case.

II.  Factual Background

2                                   The respondent John Biniaris was 15 years old at the time of the events that gave rise to his conviction for second degree murder.  He was tried in adult court, separately from his co-perpetrator, Stephen Stark, who was tried first and also convicted of second degree murder. The two had been involved in a brutal assault on the victim, Graham Niven, whom they had encountered by chance in the early morning hours of August 13, 1994.

3                                   Graham Niven was coming out of a Coquitlam, B.C., convenience store  with 14-year-old  Kaven Valin, when they came across a group of four youths, which included the respondent Biniaris and Stephen Stark.  The events that followed were described at trial by Kaven Valin, and by Peter Lehtonen, one of the two other boys who were with Biniaris and Stark that night.  While Niven and Valin were waiting for a taxi, Niven became involved in a conversation with the boys, and the subject of drugs came up.

4                                   Niven asked if anyone “did heroin”.  Stark stood up and responded that he did. Niven said not to do heroin because “it fucked up your head”.  Stark became angry and tensions mounted as Stark and Niven stood facing each other near the entrance to the store.  According to Kaven Valin, shortly after the initial exchange between Stark and Niven, the respondent Biniaris, who was now standing beside Niven, told him to “make a move”.  Stark threatened Niven, saying things such as “I’ll fuckin cut a hole in your head” and “Go in.  Save yourself”.  At that point, Stark and Niven grabbed each other.  The events which followed lasted only 20 to 30 seconds.  According to Kaven Valin, Stark threw Niven into the store’s plate glass window, causing Niven to hit his head against the window.  Stark then spun Niven around quickly and forcefully pushed him to the ground, causing Niven to strike the back of his head on the pavement.  Once Niven was on the ground, Stark straddled Niven’s thighs and started punching him in the stomach with a closed right fist while holding down Niven’s right arm with his left hand.  At this point, and for the next five to ten seconds, the respondent Biniaris entered the fray.  Peter Lehtonen testified that he thought he saw the respondent inflict a “medium strength” kick to the middle of Niven’s back just as he was attempting to raise his head and upper body off the ground by holding onto Stark’s jacket sleeves.  He said the kick startled Niven and caused him to fall back to the ground.  Lehtonen also testified that he thought he saw the respondent kick Niven on the top part of the head with “medium” force.  Kaven Valin did not testify to any kicks.  He saw the respondent run toward Niven and jump “hard” on the latter’s forehead roughly five times using his right foot, taking two or three steps back and forth in between jumps.  The respondent stomped or jumped with sufficient force to leave tread marks from his shoes on Niven’s forehead.  Lehtonen saw only two stationary up and down stomps, but he left the scene prior to the end of the attack.   After the attack, the respondent Biniaris and Stark fled together. 

5                                   Niven was deeply unconscious when emergency personnel arrived at the convenience store.  He was brain dead at the time of his arrival at Royal Columbian Hospital and was pronounced dead some 10 hours later.  Biniaris and Stark were arrested shortly before 11:00 p.m. on August 13, 1994.  The arresting officers testified that the respondent expressed surprise when informed that he was under arrest for second degree murder.

6                                   The respondent’s trial before Boyd J. and a jury took an unusual course.  The Crown’s theory was that the respondent Biniaris had caused Niven’s death and was guilty of second degree murder as a principal.  As a result, much of the focus at trial was on the issue of causation.  In turn, that issue rested largely on the medical evidence, which was both lengthy and complex, as it dealt with the causes of fatal brain injuries.  Dr. Sheila Carlyle, the pathologist who performed the autopsy on the deceased, was called by the Crown.  She and the pathologist called by the defence, Dr.  Jennifer Rice, agreed on a number of points.  For example, they agreed that there was medical evidence of only five head injuries -- three stomps to the face, a glancing blow or kick near the left eye and a fracture to the back of the skull -- and that to the extent that there may have been additional blows, they were not of sufficient force to produce bruising or broken bones.  Further, they agreed that two of the three stomps were attributable to the shoes worn by the respondent.  The source of the third stomp could not be identified while the source of the glancing blow or kick was not explained by either Dr. Carlyle or Dr. Rice. 

7                                   However, the doctors disagreed about whether the fatal injuries suffered by Niven resulted from the fall or from the stomping.  Dr. Carlyle testified that the respondent’s actions had caused Niven’s death.  Dr. Rice was of the opinion that Niven’s fatal brain injuries were attributable to the actions of Stark, although she could not exclude the unlikely possibility that the stomping aggravated the already injured brain.  Specifically, she was of the opinion that Niven had sustained lethal brain injuries when Stark caused him to strike his head on the pavement, fracturing the thickest bone in the skull. 

8                                   Dr. Carlyle maintained her position on causation throughout her testimony in chief and under cross-examination.  However, during the course of the trial, after consulting with Dr. Rice and with Dr. Charles Hirsch, an eminent American pathologist, she came to share Dr. Rice’s opinion.  Dr. Carlyle was recalled and testified to this effect, conceding that the respondent’s stomping was distinctly unlikely to have caused Niven’s fatal injuries and that while she could not exclude the possibility that the stomping had enhanced the pre-existing brain injuries suffered by Niven as a result of Stark’s actions, this latter opinion was not something she felt “comfortable advancing with any scientific basis”. 

9                                   Despite this dramatic change in the evidence, at the close of the trial the Crown maintained its original theory and suggested that, notwithstanding the consensus in the medical evidence, it was still open to the jury, as a matter of common sense, to conclude that the respondent had caused Niven’s death and that, if they found that he had the intent necessary for murder, then he was guilty of second degree murder as a principal.  However, the jury was also offered two alternative routes to a conviction for second degree murder, each of which, like the primary route urged by the Crown, required proof of an intent to cause bodily harm that the respondent knew was likely to cause death and was reckless as to whether death ensued or not.  First, even if the respondent had not caused Niven’s death, the Crown argued that the respondent was guilty as a co-perpetrator, having acted in concert with Stark with the necessary intent to sustain a conviction for murder.  Second, it was suggested that the respondent could be found guilty of murder because he aided or abetted Stark and did so with the knowledge and intent for murder.  In her charge, the trial judge warned the jury to be slow to reject the ultimately unanimous expert evidence regarding causation in favour of common sense. 

10                               The respondent was convicted of second degree murder and sentenced by Boyd J. to life imprisonment without eligibility for parole for five years.

III.  Relevant Statutory Provisions

11                               Criminal Code, R.S.C., 1985, c. C-46 

675. (1)  A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal

(a) against his conviction

(i) on any ground of appeal that involves a question of law alone,

(ii) on any ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge thereof or on the certificate of the trial judge that the case is a proper case for appeal, or

(iii) on any ground of appeal not mentioned in subparagraph (i) or (ii) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal;

                                                                   . . .

676. (1)  The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;

                                                                   . . .

686. (1)  On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(b) may dismiss the appeal where

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred; or

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

                                                                   . . .

691. (1)  A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada

(a) on any question of law on which a judge of the court of appeal dissents; or

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.

                                                                   . . .

693. (1)  Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1) (a), (b) or (c) or subsection 676(3), the Attorney General may appeal to the Supreme Court of Canada

(a) on any question of law on which a judge of the court of appeal dissents; or

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.      

IV.  Judgments Below

British Columbia Court of Appeal (1998), 124 C.C.C. (3d) 58

(i)  Hall J.A., Braidwood J.A. concurring

12                               Hall J.A. held that the respondent’s conviction for second degree murder was unreasonable and not supported by the evidence.  Relying on s. 686(1) (b)(i) of the Criminal Code , he dismissed the appeal but substituted a verdict of manslaughter and remanded the matter to the trial court for sentencing.  The conclusions of Hall J.A. are summarized in his reasons as follows (at p. 73):

By the end of the evidence, the case for a murder conviction against this accused was frankly a thin case.  This case was also highly emotional by reason of these outrageous assaults.  If one analyzes the activities of the two assailants, it seems to me to be an inescapable conclusion that the assaultive activity attributed to this [accused] all occurred after the infliction of the fatal harm and in circumstances where Biniaris’ intention to assist in a murder is unclear.  Nor, as I observed, is this a joint venture case of the sort where one or more of the parties may possess a deadly weapon like a gun or a knife.  Biniaris very briefly participated as a party in an affray that had a fatal consequence.  To found a conviction for murder against this [accused], I believe that the trier of fact would be required to find that Biniaris aided or abetted Stark with a murderous intent of the sort set out in s. 229(a)(ii); R. v. Kirkness, [1990] 3 S.C.R. 74, 60 C.C.C. (3d) 97.  On the facts here that was perhaps an open verdict one that was but very thinly supported by the evidence.  The case for murder was sufficiently tenuous against Biniaris that I believe the murder verdict returned by the jury against this [accused] was not supported by the evidence.

13                               Hall J.A. was very concerned about the shift in the underlying theory of culpability and, in particular, about the fact the Crown maintained its original position that the respondent Biniaris was the principal offender when, in Hall J.A.’s view, there was no longer any evidentiary basis to treat him as such.

(ii)  Ryan J.A., dissenting

14                               Ryan J.A. was of the opinion that the jury was entitled to conclude that the  attack on Niven was a joint endeavor carried out by the respondent and Stark, and that the nature of the combined attack manifested the requisite intent to support a conviction for murder.  She noted that the respondent had been the first to verbally challenge Niven and that he had entered the fray almost immediately after Stark had thrown Niven to the ground and begun punching him in the stomach.  While there was evidence which could have been accepted by the jury as supporting the respondent’s position that he lacked the necessary intent, Ryan J.A. was of the opinion that “[a]ll of these facts were for the jury to assess” (p. 77).  In this light, she concluded that it was not unreasonable for the jury to convict the respondent of second degree murder.  She would have dismissed the appeal.

V. Analysis 

A.  Rights of Appeal from a Substituted Verdict

15                               Shortly before the hearing of this appeal, the Court invited the parties and the interveners to address a preliminary legal issue, which is unique to this appeal.  Of the three cases before us, Biniaris is the only one where the appeal is by the Crown, from a judgment of the Court of Appeal dismissing an appeal by the accused from his conviction for murder, but substituting a conviction for manslaughter.  The question arises, therefore, as to whether a substituted verdict gives rise to a right of appeal by the Crown, whether with leave, or as of right on the strength of a dissent in the Court of Appeal, within the language of s. 693(1)  of the Criminal Code .

16                               In this case, the Court of Appeal, acting under s. 686(1) (b)(i) and (3) , dismissed the accused’s appeal of his second degree murder conviction and substituted a conviction for manslaughter.  This was clearly the correct procedure to follow in the case of a substituted verdict.  See R. v. Nantais, [1966] 2 O.R. 246 (C.A.).  The issue was raised by this Court as to whether in substituting a verdict, a court of appeal “sets aside a conviction”, and consequently provides the Crown with a right of appeal under s. 693(1) , or whether, in substituting a verdict, a court of appeal “affirms a conviction” so as to give the accused an appeal from the conviction on the substituted offence under s. 691(1) , or, possibly, both.

17                               In R. v. McGloan, [1976] 2 S.C.R. 842, at p. 848, Ritchie J., writing for the majority, considered the argument that the Crown had no right of appeal under s. 621(1) (now s. 693(1) ), on the grounds that a substituted verdict did not set aside a conviction.  Ritchie J. rejected this argument, pointing to the order of the Supreme Court of Alberta (Appellate Division), which clearly stated that the original conviction was quashed and a new conviction substituted.  It is frequently the practice of courts of appeal, in similar cases, to state in their orders that the original conviction is set aside and a new conviction is substituted.

18                               While the language of s. 686(1) (b)(i) and (3)  does not contain an explicit direction to a court of appeal to set aside a conviction, when a court of appeal dismisses the accused’s appeal from the original conviction by substituting a verdict on another count or part of the indictment, the court of appeal implicitly sets aside the conviction by the trial court and also implicitly affirms the new conviction on the included offence.  Thus, there are co-existing rights of appeal for both the accused, under s. 691 , and the Crown, under s. 693 ,  to this Court from a court of appeal order for a substituted verdict.

B.  Whether the Reasonableness of a Verdict Is a Question of Law

19                               This Court, in Yebes, supra, decided unequivocally that the reasonableness of a verdict, within the meaning of s. 686(1) (a)(i) of the Criminal Code , involves a decision on a question of law, and as such gives rise to a further appeal to this Court. McIntyre J., speaking for a unanimous six-member panel of the Court, indicated that although the respondent Crown had raised that jurisdictional issue, it was not “strongly pressed” at the hearing of the appeal (p. 181).  McIntyre J. recognized that although the proper qualification of the issue as either one of law, fact, or mixed fact and law was far from self-evident, there was no reason to treat it differently from the similar issue of whether a substantial wrong or miscarriage of justice had occurred, within the meaning of s. 686(1) (b)(iii).  That having been interpreted as a question of law in Mahoney v. The Queen, [1982] 1 S.C.R. 834, McIntyre J. concluded that whether a verdict was unreasonable or not supportable by the evidence also amounted to a question of law.

20                               The revisiting of this issue in the current trilogy is based, in part, on an argument that the decision in Yebes was an unjustified departure from the previous state of the law, and that it has not been consistently followed by this Court since.

21                               The terminology “question of fact”, “question of law”, “question of mixed fact and law”, “question of law alone”, as used in the Criminal Code  and in the case law in relation to rights of appeal has created serious difficulties of interpretation that are best resolved by a broad, purposive interpretative approach, adopted by Iacobucci J. in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21 (quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87):

Today there is only one principle or approach [to statutory interpretation], namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

22                               The sole purpose of the exercise here, in identifying the reasonableness of a verdict as a question of fact, law or both, is to determine access to appellate review.   One can plausibly maintain, on close scrutiny of any decision under review, that the conclusion that a verdict was unreasonable was reached sometimes mostly as a matter of law, in other cases predominantly as a matter of factual assessment.  But when that exercise is undertaken as a jurisdictional threshold exercise, little is gained by embarking on such a case-by-case analysis.  Rather, it is vastly preferable to look at the overall nature of these kinds of decisions, and of their implications.  Ideally, threshold jurisdictional issues should be as straightforward and free of ambiguity as possible.  Otherwise, as these and many similar cases illustrate, courts spend an inordinate amount of time and effort attempting to ascertain their jurisdiction, while their resources would be better employed dealing with the issues on their merits.

23                               Whether a conviction can be said to be unreasonable, or not supported by the evidence, imports in every case the application of a legal standard.  The process by which this standard is applied inevitably entails a review of the facts of the case. I will say more about the review process below.  As a jurisdictional issue of appellate access, the application of that legal standard is enough to make the question a question of law.  It is of no import to suggest that it is not a “pure question of law”, or that it is not a “question of law alone”.

24                               Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt.  Any judicial system must tolerate reasonable differences of opinion on factual issues.  Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction.  Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree.  A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned. 

25                               Very little additional insight is gained by elaborate exercises in statutory interpretation.  The intention of Parliament is better ascertained in broad terms than by microscopic examination of the relevant provisions of the Criminal Code .  Although the cases before us today come as of right, on the basis of a dissent in the Court of Appeal, I think that the fact that they are appeals as of right obscures the true nature of the debate on the question of reviewability of alleged unreasonable convictions.  Access to the Supreme Court is generally reserved for important cases that have legal significance.  Inevitably, not all appeals as of right have great legal importance, although the assumption is that, as a category, they do.  As with all other questions of law, not all dissents in an appeal court on the issue of unreasonable verdict rest on a question of great importance.  However, if the reasonableness of a conviction is not a question of law, no right of appeal will exist from a decision on that issue, not even with leave of the Court.  This result would, in my view, be incompatible with the intention of Parliament expressed, overall, in the totality of the scheme for appellate review.

26                               Criminal appeals on questions of law are based in part on the desire to ensure that criminal convictions are the product of error-free trials.  Error-free trials are desirable as such, but even more so as a safeguard against wrongful convictions. It is inconceivable that Parliament would have permitted access, by leave or as of right, to this Court, in the case of trials or appeals affected by legal error, but would have granted no access whatsoever in the case of possibly the gravest error of all: an unreasonable conviction, or one that cannot be supported by the evidence.

27                               The conclusion that a finding by an appeal court that a verdict is unreasonable or cannot be supported by the evidence raises a question of law is in harmony with the overall intent and spirit of the two-tier criminal appeal structure in the Criminal Code , even if there are some statutory constructions that may lend support to a different conclusion. Several of these constructions were advanced, none of which, in my view, is conclusive.

(i)    Sections 686(1) (a)(i) and 686(1) (a)(ii)

28                               For instance, the contrast between s. 686(1) (a)(i) and s. 686(1) (a)(ii) has been relied upon to suggest that the opinion of a court of appeal that the verdict is unreasonable is merely an opinion on a question of fact.  For convenience, I will set these subsections out again:

686. (1)  On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law. . . .

29                               The reasoning is that if it were a question of law, there would be no need for both s. 686(1) (a)(i) and s. 686(1) (a)(ii).  See Sunbeam Corporation (Canada) Ltd. v. The Queen, [1969] S.C.R. 221, at pp. 237-38; Lampard v. The Queen, [1969] S.C.R. 373, at pp. 380-81.  This inference from the wording of the two subsections is far from inescapable.  True, the remedial power contained in s. 686(1) (a)(i) may be linked to the jurisdiction of the court of appeal to entertain, with leave, questions of mixed fact and law or indeed questions of fact (see s. 675(1) (a)(ii)).  However, it may also be viewed as a question of law that needed to be specifically identified as a basis for appellate intervention, since it would not fit well under the terminology used in s. 686(1) (a)(ii): an unreasonable verdict is not a “wrong decision on a question of law”.  It is also arguable that the two subsections may coexist without creating a redundancy or in any way doing violence to the idea that an unreasonable verdict is a question of law, by contrasting the word “verdict” in s. 686(1) (a)(i) with the phrase “judgment of the trial court” in s. 686(1) (a)(ii).  The “verdict” could be seen as referring to the wrong legal conclusion of the trial judge or the jury on the ultimate issue of guilt or innocence, as opposed to the wrong legal conclusions of the trial judge on a myriad of issues of substantive law, procedure and evidence.

(ii)  “Question of Law Alone” and Unreasonable Acquittals

30                               Various arguments have been advanced, based on the implications that should flow from the use of the expression “question of law alone” in s. 676(1) (a), which provides for appeals by the Crown to the court of appeal.  These arguments are of little assistance or consequence in determining the scope of access to this Court under ss. 691  or 693 .  The use of that expression can be taken to mean either that the Crown has a right of appeal from an acquittal only on a question of law, or that there is such a thing as a “question of law alone”, which is distinct from a “question of law”.  I think it means the former.  It is used in contrast to the right of the accused to appeal both on questions of law, questions of fact, and questions of mixed fact and law (see s. 675(1) (a)(i) and (ii)), and it is of no assistance in further defining the scope of the expression “question of law” in ss. 691  and 693 .

31                               The fact that a “question of law alone” is nothing different than a “question of law”, and that the reasonableness of a verdict is a “question of law” within the meaning of s. 686(1) (a)(i), raises the question of whether the Crown will have a right of appeal against an “unreasonable acquittal”.  Although this question does not squarely arise on the facts of any of the three cases before us, it arises unavoidably since the interpretation given to “question of law” in s. 693(1)  must equally apply to the phrase “question of law alone” in ss. 675(1)  and 676(1) .  The  conclusion that the reasonableness of a verdict always raises a question of law has a single, inevitable, consequence for these two sections: an accused person does not require leave to appeal under s. 675(1)  where he or she challenges the reasonableness of the verdict.  On the other hand, it will not affect the Crown’s rights of appeal from an acquittal in any way. 

32                               In their written submissions, both the Attorney General for Ontario and the Attorney General of Manitoba (who participated in the companion cases) recognized that the law, as it stood at the time of the appeal, is clear that the Crown has no right of appeal from an acquittal on the ground that it was unreasonable, because the reasonableness of a verdict is a question of fact (or one of mixed fact and law).  See, e.g., Sunbeam, supra, at p. 233; Lampard, supra, at pp. 380-81; Ciglen v. The Queen, [1970] S.C.R. 804, at pp. 814-15, per Cartwright C.J., dissenting; R. v. B. (G.), [1990] 2 S.C.R. 57, at pp. 70-71; R. v. H. (D.S.) and N. (J.D.), [1994] 2 S.C.R. 392, rev’g (1994), 90 C.C.C. (3d) 564 (B.C.C.A.); R. v. Blundon (1993), 84 C.C.C. (3d) 249 (Nfld. C.A.), at  pp. 279-80.  There can be no suggestion that the Crown’s right of appeal at first instance is being enlarged or expanded to include “unreasonable acquittals” as a result of the determination that the reasonableness of a verdict is a “question of law” as well as a “question of law alone”.  As before, the Crown is barred from appealing an acquittal on the sole basis that it is unreasonable, without asserting any other error of law leading to it.

33                               There is no anomaly in this result.  The powers of the court of appeal in the case of Crown appeals on a question of law are contained in s. 686(4) of the Code.  There is no reference in that section to an unreasonable verdict.  This is consistent with the limited rights of appeal conferred on the Crown by s. 676(1) .  The absence of language granting a remedial power corresponding to s. 686(1) (a)(i), suggests that Parliament did not intend “unreasonable acquittals” to be appealable by the Crown at first instance.  Further, and more importantly, as a matter of law, the concept of  “unreasonable acquittal” is incompatible with the presumption of innocence and the burden which rests on the prosecution to prove its case beyond a reasonable doubt.  See Lampard, supra, at pp. 380-81; Schuldt v. The Queen, [1985] 2 S.C.R. 592, at p. 610; B. (G.), supra, at pp. 70-71.  Since, different policy considerations apply in providing the Crown with a right of appeal against acquittals, it seems to me that there is no principle of parity of appellate access in the criminal process that must inform our interpretation of this issue.

(iii)  Redundancy

34                               Finally, there is little merit in the argument, which is more one of policy than of statutory interpretation, that a second level of assessment of the reasonableness of a verdict is unnecessary since this Court is in no better position than courts of appeal to arrive at a correct answer, and that the exercise is merely repetitious.  The review by the Supreme Court of a decision by a court of appeal that a verdict is unreasonable or cannot be supported by the evidence is in reality the first level of appellate review of that conclusion.  The court of appeal, in examining the issue, obviously does not have the benefit of the analysis of the question by the trial court, as it would, or should, on legal issues such as the admissibility of evidence or the availability of a defence. The determination of the reasonableness of the verdict is therefore an original decision by the court of appeal, and there is no reason to bar the possibility of a review of that important decision. 

35                               In the end, there is no statutory interpretation principle that precludes the conclusion reached in Yebes, which is in accordance with the overriding principle expressed in Rizzo Shoes, supra.  To the extent that decisions subsequent to Yebes may have suggested that the reasonableness of a verdict does not raise a question of law so as to give rise to a right of appeal, either as of right or by leave, under ss. 691  or 693  of the Criminal Code , these decisions in my view are in error, and Yebes must be reaffirmed.  Three cases were brought to our attention which are said to cast doubt on whether the reasonableness of a verdict involves a question of law.  In all three cases, two of which were appeals by the Crown and one by the defence, this Court quashed the appeal which was launched as of right on the basis of a dissent in the court of appeal on the question of whether the verdict was reasonable.  See R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), appeal quashed, [1997] 1 S.C.R. 304; R. v. Osvath (1996), 87 O.A.C. 274 (C.A.), appeal quashed, [1997] 1 S.C.R. 7; R. v. Hamilton, [1997] Q.J. No. 67 (QL) (C.A.), appeal quashed June 2, 1997, [1997] S.C.C.A. No. 105 (QL).  The quashing of these appeals, which implies an absence of jurisdiction rather than a disposition of the appeal on the merits, could be viewed as a proper application of Yebes.  Arguably, Yebes left open the possibility that some dissents in appellate courts on the unreasonableness of a verdict may not amount to dissents on a question of law.  After referring to the difficulty in drawing a clear line between a question of fact and one of law, and in response to the argument advanced by the Crown in that case that there was no point of law dividing the majority and the dissenting judge in the Court of Appeal, McIntyre J. said, at p. 181:

Therefore, whether or not an appeal raises a question of law can only be determined after an examination of both the statements of law and the application of the law to the facts in the courts below.

This may be taken to suggest that some, but not all differences of opinion about the reasonableness of a verdict will give rise to a question of law.  Others, presumably, would at best involve a mixed question of fact and law, or a simple disagreement on the facts.  With respect, I do not agree that such a distinction was intended by Yebes.  It is both unsound and undesirable. When a conviction is said to be unreasonable, or unsupported by the evidence, it is that conclusion itself that raises a question of law, not merely the process by which the conclusion was reached.  Therefore, there is no need to determine whether that conclusion was arrived at by the application of the wrong legal test, or otherwise tainted by a legal irregularity, since even when it applies the right test, in an error-free process, the court of appeal must be right, as a matter of law, on the legal appreciation of the verdict as a reasonable one.  This approach is also consistent with the need for clarity in jurisdictional matters.  There certainly would be little judicial economy in embarking upon a characterization of the appellate exercise as one of fact, rather than law, as a threshold determination of jurisdiction.  Rather than streamlining or reducing appeals, it would add to their litigiousness, but on the wrong question.

C.  Whether the Standard of Review Under Section 686(1)(a)(i) Should Be Modified

36                               The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been unequivocally expressed in Yebes as follows:

[C]urial review is invited whenever a jury goes beyond a reasonable standard. . . . [T]he test is ‘whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered’.

(Yebes, supra, at p. 185 (quoting Corbett v. The Queen, [1975] 2 S.C.R. 275, at p. 282, per Pigeon J.).)

That formulation of the test imports both an objective assessment and, to some extent, a subjective one.  It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence.  This latter process is usually understood as referring to a subjective exercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency.   The test is therefore mixed, and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or a subjective test. 

37                               The Yebes test is expressed in terms of a verdict reached by a jury.  It is, however, equally applicable to the judgment of a judge sitting at trial without a jury.

The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided.  In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal.  For example, in R. v. Burke, [1996] 1 S.C.R. 474, this Court was in a position to identify the deficiencies in the trial judge’s analysis of the evidence which led to her unreasonable conclusions in respect of the three counts of indecent assault facing the accused.  In that case, Sopinka J. found that the trial judge had ignored the possibility of collusion or corroboration between witnesses before accepting their “strikingly similar” evidence, had not been alive to circumstances (i.e., the absence of physical traces of an alleged indecent assault which, if true, should have left observable marks) which caused great concern about the reliability of evidence adduced in support of allegations of a bizarre nature, and had relied uncritically on unorthodox identification evidence.  Similarly, in R. v. Reitsma, [1998] 1 S.C.R. 769, rev’g (1997), 97 B.C.A.C. 303, this Court agreed with Rowles J.A., dissenting, that the trial judge had failed to advert to deficiencies in the pre-trial identification procedure and the shortcoming of “in-dock” identification.  Finally, in R. v. O’Connor (1998), 123 C.C.C. (3d) 487 (B.C.C.A.), at pp. 492-93 and 518-20, the trial judge accepted the accused’s evidence that he was not present at the place where the offence was alleged to have been committed, and yet convicted the accused.  This logical inconsistency was relied upon by the Court of Appeal to explain the unreasonableness of the verdict.  These examples demonstrate that in trials by judge alone, the court of appeal often can and should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion.  The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached.  These discernable defects are themselves sometimes akin to a separate error of law, and therefore easily sustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law.

38                               The exercise of appellate review is considerably more difficult when the court of appeal is required to determine the alleged unreasonableness of a verdict reached by a jury.  If there are no errors in the charge, as must be assumed, there is no way of determining the basis upon which the jury reached its conclusion. But this does not dispense the reviewing court from the need to articulate the basis upon which it finds that the conclusion reached by the jury was unreasonable. It is insufficient for the court of appeal to refer to a vague unease, or a lingering or lurking doubt based on its own review of the evidence.  This “lurking doubt” may be a powerful trigger for thorough appellate scrutiny of the evidence, but it is not, without further articulation of the basis for such doubt, a proper basis upon which to interfere with the findings of a jury.  In other words, if, after reviewing the evidence at the end of an error-free trial which led to a conviction, the appeal court judge is left with a lurking doubt or feeling of unease, that doubt, which is not in itself sufficient to justify interfering with the conviction, may be a useful signal that the verdict was indeed reached in a non-judicial manner. In that case, the court of appeal must proceed further with its analysis. 

39                               When a jury which was admittedly properly instructed returns what the appeal court perceives to be an unreasonable conviction, the only rational inference, if the test in Yebes is followed, is that the jury, in arriving at that guilty verdict, was not acting judicially.  This conclusion does not imply an impeachment of the integrity of the jury.  It may be that the jury reached its verdict pursuant to an analytical flaw similar to the errors occasionally incurred in the analysis of trial judges and revealed in their reasons for judgment.  Such error would of course not be apparent on the face of the verdict by a jury.  But the unreasonableness itself of the verdict would be apparent to the legally trained reviewer when, in all the circumstances of a given case, judicial fact-finding precludes the conclusion reached by the jury.  Judicial appreciation of the evidence is governed by rules that dictate the required content of the charge to the jury.  These rules are sometimes expressed in terms of warnings,  mandatory or discretionary sets of instructions by which a trial judge will convey the product of accumulated judicial experience to the jury, who, by definition, is new to the exercise.  For instance, a judge may need to warn the jury about the frailties of eye-witness identification evidence.  Similarly, years of judicial experience has revealed the possible need for special caution in evaluating the evidence of certain witnesses, such as accomplices, who may, to the uninitiated, seem particularly knowledgeable and therefore credible.  Finally, judicial warnings may be required when the jury has heard about the criminal record of the accused, or about similar fact evidence. But these rules of caution cannot be exhaustive, they cannot capture every situation, and cannot be formulated in every case as a requirement of the charge.  Rather, after the jury has been adequately charged as to the applicable law, and warned, if necessary, about drawing possibly unwarranted conclusions, it remains that in some cases, the totality of the evidence and the peculiar factual circumstances of a given case will lead an experienced jurist to conclude that the fact-finding exercise applied at trial was flawed  in light of the unreasonable result that it produced.

40                               When an appellate court arrives at that conclusion, it does not act as a “thirteenth juror”, nor is it “usurping the function of the jury”.  In concluding that no properly instructed jury acting judicially could have convicted, the reviewing court inevitably is concluding that these particular jurors who convicted must not have been acting judicially. In that context, acting judicially means not only acting dispassionately, applying the law and adjudicating on the basis of the record and nothing else.  It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience.  This, in my view, is the assessment that must be made by the reviewing court. It requires not merely asking whether twelve properly instructed jurors, acting judicially, could reasonably have come to the same result, but doing so through the lens of judicial experience which serves as an additional protection against an unwarranted conviction.

41                               It is not particularly significant to describe this judicial oversight as either objective or subjective.  It is exercised by an appeal court and therefore it will invariably draw on a collection of judicial experiences.  Because of its judicial character, and because it purports to identify features of a case that will give experienced jurists cause for concern, it is imperative that the reviewing court articulate as precisely as possible what features of the case suggest that the verdict reached by the jury was unreasonable, despite the fact that it was not tainted by any erroneous instructions as to the applicable law.  In some cases, the articulation of the grounds upon which an appellate court concludes that a conviction was unreasonable may elucidate previously unidentified dangers in evidence and  give rise to additional warnings to the jury in subsequent cases.  Most of the time, it will simply point to a case that presented itself with several causes for concern, none of which, in isolation, might have required that the jury be warned in any particular way.  There are many illustrations from the case law of verdicts having been found unreasonable essentially on the strength of accumulated judicial experience.  Concerns about various aspects of the frailty of identification evidence have been a recurrent basis, by itself or together with other considerations, for overturning verdicts as unreasonable.  See, e.g., Burke, supra; Reitsma, supra; R. v. Keeper (1993), 88 Man. R. (2d) 156 (C.A.); R. v.  Malcolm (1993), 81 C.C.C. (3d) 196 (Ont. C.A.); R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.); R. v. N.D., [1993] O.J. No. 2139 (QL) (C.A.).  Judicial experience has also been relied upon to question the reasonableness of verdicts in cases of sexual misconduct presenting troubling features such as allegations of sexual touching of a bizarre nature (see, e.g., Burke, supra; R. v. C.V., [1993] O.J. No. 1512 (QL) (C.A.); R. v. L. (J.H.H.P.) (1992), 75 C.C.C. (3d) 165 (Man. C.A.)), or the possibility of collusion between witnesses (see, e.g., Burke, supra).  Finally, the experience of the courts has occasionally been brought to bear, although not always explicitly, on the assessment of verdicts rejecting a  defence with respect to which there may be unjustified skepticism or even prejudice because those relying on such justifications or excuses may be viewed as simply trying to avoid responsibility for their actions.  See, e.g., R. v. Vaillancourt (1999), 136 C.C.C. (3d) 530 (Que. C.A.); Molodowic, supra.  

42                               It follows from the above that the test in Yebes continues to be the binding test that appellate courts must apply in determining whether the verdict of the jury is unreasonable or cannot be supported by the evidence.  To the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests.  That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal experience and insight.  It also requires that the reviewing court articulate as explicitly and as precisely as possible the grounds for its intervention.  I wish to stress the importance of explicitness in the articulation of the reasons that support a finding that a verdict is unreasonable or cannot be supported by the evidence.  Particularly since this amounts to a question of law that may give rise to an appeal, either as of right or by leave, the judicial process requires clarity and transparency as well as accessibility to the legal reasoning of the court of appeal.   When there is a dissent in the court of appeal on the issue of the reasonableness of the verdict, both the spirit and the letter of s. 677  of the Criminal Code  should be complied with.  This Court should be supplied with the grounds upon which the verdict was found to be, or not to be, unreasonable. 

D.  Application to this Appeal

43                               The appellant raised three issues before this Court:

1.    Did the majority of the British Columbia Court of Appeal err in law in failing to consider that the verdict was reasonable and supported by the evidence on the basis of co-perpetrator liability as outlined in Regina v. McMaster, [1996] 1 S.C.R. 740? 

2.    Did the majority of the British Columbia Court of Appeal err in law by applying the wrong test to determine whether the verdict was unreasonable or could not be supported by the evidence? 

3.    Did the majority of the British Columbia Court of Appeal err in law in failing to review, and to some extent re-examine and re-weigh, all of the evidence in the instant case when it concluded that the verdict was unreasonable and unsupported by the evidence?

44                               These three issues can conveniently be addressed together.  At the outset of the respondent Biniaris’ trial and until the change in  Dr. Carlyle’s opinion, the Crown’s position was that Biniaris alone had caused the fatal injuries suffered by Niven and was guilty of second degree murder as a principal.  The shift in Dr. Carlyle’s evidence led Crown counsel, at the end of the trial, to advance a modified, three-part theory of liability -- liability as a principal, liability as a co-perpetrator or liability as an aider or abettor.  Boyd J. dealt adequately with the implications of the reversal of Dr. Carlyle’s position and the Crown’s modified theory in her charge to the jury.  The trial judge explained the Crown’s position that it was open to the jury to reject the medical evidence offered by Drs. Rice and Carlyle on the issue of causation in favour of their own common sense and, if they were satisfied beyond a reasonable doubt that Biniaris had acted with the requisite intent, to conclude that Biniaris was guilty of second degree murder as the perpetrator of Niven’s fatal injuries.  However, Boyd J. quite properly urged the jury to be very careful, characterizing the choice to ignore the unanimous expert evidence on causation as a “dangerous venture”.  The trial judge then explained the circumstances under which it was open to the jury, applying the relevant principles of party liability set out in s. 21(1)  of the Criminal Code , to convict the accused of second degree murder:

The matter now to consider is under what circumstances one or more persons can be responsible for the death of the deceased and one actus reus.

                                                                     . . .

[I]f you should find after a consideration of all of the evidence that it has been shown beyond a reasonable doubt that the accused, Mr.  Biniaris, together with Mr. Stark, participated in a chain of events which were all interrelated and interconnected from the time the altercation began until they left the scene, then you will have concluded that the actus reus has been committed.

. . .

Assuming  . . . that you conclude there was such a chain of events, if you should find beyond a reasonable doubt that Mr. Biniaris, during the course of that chain of events, struck Mr. Niven in the manner which has been described in the evidence, and if you find again beyond a reasonable doubt that these blows were delivered by Mr. Biniaris either with the intent to cause his death or with the intent to cause Mr. Niven bodily harm which he knew was likely to cause his death and was reckless whether death ensued or not, then he is guilty of second degree murder [as a co-perpetrator] no matter which of the blows during that series of events, including the initial fall to the ground, caused Mr. Niven’s death.

Assuming again that you conclude there was a chain of events, an interrelated chain of events constituting the actus reus, if you find it was Mr. Stark who intended to kill Mr. Niven and that Mr. Biniaris, knowing of Stark’s intention to cause bodily harm to Niven that was likely to cause death, aided or abetted Stark by either encouraging Niven to fight or by actually participating in the beating in order to carry out that purpose, then you will have found that Mr. Biniaris was an accomplice and is a party to the offence of second degree murder and is equally guilty regardless of whether or not Mr. Biniaris’ actions, the stomping, the kicking, regardless [of] whether any of that actually caused Mr. Niven’s death. 

What I am really saying to you is there are two routes to a second degree murder conviction.  One is if you find that Mr. Biniaris was the principal offender, and that other is if you find that Mr. Biniaris was a party [either as a co-perpetrator or as an accomplice] to a single transaction, an interrelated series of events that led to and ultimately resulted in Mr. Niven’s death.

45                               The unusual course of the respondent’s trial caused grave concern to the majority of the Court of Appeal and ultimately, in my respectful view, led Hall J.A.’s reasonableness analysis astray.  Despite the availability of two alternative routes to a second degree murder conviction, neither of which was dependent on proof that the respondent actually caused Niven’s fatal injuries, Hall J.A.’s reasons for judgment indicate that he remained unduly concerned about causation.  In light of the state of the medical evidence at the end of the trial, Hall J.A. correctly concluded that, “the only safe route for a conviction of the appellant Biniaris for murder lay through the application of s. 21  of the Criminal Code ” (p. 71).  This was also clearly the view of the trial judge who directed the jury accordingly.  However, Hall J.A.’s analysis remained focused on the issue of causation, despite its minor significance to the respondent’s liability as a party.  He wrote (at pp. 71-73):

At the outset, the jury had, in the Crown opening, been advised of the theory that the fatal injuries were caused by actions of the [accused] Biniaris.  By the end of the case there had been a complete reversal of this theory.  He was now said to be liable to be found culpable of murder on the ground of being a party to the activity of Stark.  It must be observed that the activity of Stark causative of the injuries had terminated almost entirely by the time Biniaris became involved in the affray.  Blows struck by Stark after Niven was on the pavement were to his abdomen area and if, as was less than clear from the evidence, Stark did, near the termination of the incident, direct a kick at the chin of Niven, that again seems unlikely to have had any causal relationship to the serious brain injury.  Thus in this case, we have the situation that anything done by Biniaris, the [accused], by his stomping activity, while no doubt manifesting an intention to assist Stark in his general assault of Niven, seems most unlikely to have been causative of the fatal brain injuries suffered by Niven.  The nature of the brain injuries testified to by the experts makes the temporal sequence of events important here.  This [accused] came into the fray at a point in time when, as I interpret the medical testimony, the damage to the brain of the deceased was irreversible. 

                                                                     . . .

If one analyzes the activities of the two assailants, it seems to me to be an inescapable conclusion that the assaultive activity attributed to the [accused] all occurred after the infliction of the fatal harm and in circumstances where Biniaris’ intention to assist in a murder is unclear.

46                               In my opinion, Hall J.A. properly identified mens rea as a critical issue but erred in interfering with the conclusion reached by the jury on that question, which was fully open to them on the evidence. He said (at pp. 72-73):

In order to be found guilty of murder as a party, the jury would have to conclude that the [accused] had the same intent as the killer [i.e., the intent to cause death or the intention to cause bodily harm that he knew was likely to cause death, being reckless whether death ensued or not] and was carrying out these acts of stomping for the purpose of aiding and abetting in the murder of the deceased.  The intention is probably less easy to attribute in the case of a sudden affray of this sort than might be the case where a deadly weapon is anticipated to be used.

I see the position of the [accused] in this case as rather different from that of Stark.  Stark, the initial aggressor outside the store, decided to attack Niven and carried out that attack with great violence and with disastrous results.  Biniaris was by no means the prime mover in the event.

                                                                     . . .

Nor, as I observed, is this a joint venture case of the sort where one or more  of the parties may possess a deadly weapon like a gun or a knife.

Whether Stark was the initial aggressor, the degree and the intensity of the respondent’s participation in the attack and his intention or foresight at the time of his participation in the attack were all matters raised by the evidence and commented upon by the parties and by the trial judge.  Although a conviction for manslaughter was a given, as was conceded by the respondent before this Court, and although reasonable people may disagree about whether they would have found, on the evidence, that the respondent had the requisite intent for murder, there is nothing to qualify that conclusion, which is really the only one in issue in this case, as an unreasonable one.

47                               On the evidence adduced by the Crown, it was reasonable for the jury to conclude that the respondent and Stark had aided and abetted one another in a joint attack on Niven.  There was evidence on the basis of which the jury could reasonably find that the respondent was no less a “prime mover” or “initial aggressor” than Stark.  The evidence establishes that Biniaris stood up and moved close to Niven soon after the initial exchange of words between Stark and Niven, suggesting, not unreasonably, that the respondent was readying himself for a fight.  The evidence also suggests that the respondent, as Ryan J.A. noted, “was the first to verbally challenge Niven to a fight” (p. 75) and that he entered the fray moments after Stark began to punch Niven, at a point where Niven was trying to raise himself, holding onto Stark’s jacket sleeves.  Finally, the evidence establishes that the respondent and Stark fled the scene together. It was clearly reasonable for the jury to conclude that the respondent had, through words and actions which encouraged and assisted Stark, participated in an interrelated chain of events which ultimately led to Niven’s death.  The respondent does not dispute the reasonableness of this conclusion as is reflected in his submission that he was properly convicted of manslaughter.

48                               Both Boyd J., in her instructions to the jury, and Hall J.A. recognized that intent, namely whether Biniaris intended to cause Niven’s death or to cause bodily harm which he knew was likely to cause death and was reckless as to whether death ensued or not, was the “real question to be faced by the jury” (p. 72).  However, Hall J.A.’s reasons do not contain a thorough review and re-examination of the evidence as it relates to intent.  In light of the respondent’s brief involvement in the sudden affray, Hall J.A. opined that the respondent’s “intention to assist in a murder [was] unclear” (p.  73).  In contrast, Boyd J. thoroughly canvassed all the evidence adduced on the issue of intent in her charge to the jury, including the evidence of Valin and Lehtonen in relation to the number and strength of the kicks and stomps allegedly administered by the respondent, the evidence of these same witnesses regarding the short duration of the attack on Niven and of the respondent’s participation therein, the evidence of Dr. Rice which, defence counsel suggested, contradicted Kaven Valin’s testimony that the stomps administered by the respondent involved a substantial amount of force, the evidence of Dr. Carlyle that the effects of “lividity” enhanced and emphasized the tread mark patterns and related bruising on Niven’s forehead, and the testimony of the arresting officers concerning the respondent’s surprised reaction upon being informed that he was being charged with second degree murder.

49                               I agree with Ryan J.A.’s conclusion that “[a]ll of these facts were for the jury to assess” (p. 77).  There is nothing in the compendium of accumulated judicial experience that should cause concern that the jury went astray in its review and assessment of the evidence.  Even though it might have been reasonable for the jury to conclude otherwise, it was perfectly reasonable for the jury to be satisfied beyond a reasonable doubt that Biniaris had acted with the requisite intent for murder.  There was evidence upon which the jury could reasonably find that the respondent had administered one or more kicks to Niven, including the glancing blow to the face; and to accept the Crown’s contention that the respondent had “changed gears” when he moved from kicking to stomping and that, in so doing, he “obviously intended deadly harm”.  In the same way, it was not unreasonable for the jury to conclude that in deciding to stomp, not once but twice, on Niven’s head, the respondent’s purposive, deliberate and intentional conduct, which involved the repeated use of violence against a defenceless man, established that he intended to cause Niven bodily harm which he must have known was likely to cause death, being reckless as to whether or not death ensued.  As indicated earlier, in light of his responsibility as a party, the fact that the specific blows inflicted by the respondent were not the ones which were the immediate cause of death was of no significance.

50                               In overturning the verdict of the jury as unreasonable, Hall J.A. was troubled by the unusual course of the trial, resulting from Dr. Carlyle’s abandonment of the opinion upon which the Crown’s case had originally been cast.  He viewed this as a “dramatic” change in the composition of the Crown’s case and was concerned that “the nuances of all this might not have been that easy for a jury to appreciate” (p. 72).  Moreover, Hall J.A. considered this case to have been “highly emotional by reason of these outrageous assaults” (p. 73).  These concerns, in my respectful opinion, were insufficient to set aside the verdict of the jury as unreasonable.  They were more than adequately addressed by the trial judge, whose charge to the jury was instructive and fair.

51                               The determination of the intent or foresight of a person at the time of his participation in a homicide is often a difficult question of fact.  It certainly was so in this case where a very young man was involved in a brief, senseless and violent beating which left an innocent man dead.  Despite the unusual turn of events at trial, and the fact that many similar incidents in the past have led to convictions for manslaughter only, the law required this jury to answer this difficult question on the facts of this case, and it did.  In my view, the verdict was one that this properly instructed jury, acting judicially, could reasonably have rendered, and it should be restored.

VI. Conclusion and Disposition

52                               For these reasons, I would allow the appeal, set aside the judgment of the Court of Appeal and restore the conviction for second degree murder and the sentence imposed by Boyd J.

Appeal allowed.

Solicitor for the appellant:  The Ministry of the Attorney General, Vancouver.

Solicitors for the respondent:  Wilson & Buck, Vancouver.

Solicitor for the intervener the Attorney General of Canada:  The Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General for Ontario:  The Ministry of the Attorney General, Toronto.

Solicitor for the intervener the Attorney General of Quebec:  The Attorney General’s Prosecutor, Montréal.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario):  Gold & Fuerst, Toronto.

Solicitors for the intervener the Innocence Project:  Ruby & Edwardh, Toronto.

Solicitors for the intervener the Association in Defence of the Wrongly Convicted:  Sack Goldblatt Mitchell, Toronto.

Solicitors for the intervener the Criminal Trial Lawyers Association of Alberta:  Beresh DePoe Cunningham, Edmonton.