R. v. Haroun, [1997] 1 SCR 593

R. v. Haroun, [1997] 1 S.C.R. 593

Her Majesty The Queen                                                                   Appellant

v.

Joseph Haroun             Respondent

Indexed as:  R. v. Haroun

File No.:  25162.

1997:  January 24; 1997:  March 20.

Present:  La Forest, L’Heureux‑Dubé, Sopinka, Gonthier and Major JJ.

on appeal from the court of appeal for quebec

Criminal law ‑‑ Trial ‑‑ Charge to jury ‑‑ Reasonable doubt ‑‑ Whether trial judge’s charge on evidence and on assessment of testimony of accused and defence witnesses misled jury.

The accused was charged with second degree murder.  At trial, he pleaded manslaughter.  In his testimony, the accused admitted to stabbing his wife to death but stated that he had acted in a state of mental unconsciousness under the combined effect of alcohol and medication and never intended to kill her.  A psychiatrist testified that the accused could have committed the acts in question without the intent to kill.  The trial judge charged the jury, which, after deliberating, found the accused guilty of second degree murder.  On appeal, the accused maintained that the jury charge concerning the burden of proof and reasonable doubt was in error, especially in relation to the definition of the evidence and to the assessment of the testimony of the accused and the defence witnesses.  The majority of the Court of Appeal held that the trial judge had erred in his charge and ordered a new trial.  The dissenting judge found that there were no grounds for intervention.

Held (Sopinka and Major JJ. dissenting):  The appeal should be allowed.

Per La Forest, L’Heureux‑Dubé and Gonthier JJ.:  For the reasons given by the dissenting judge in the Court of Appeal, the conviction for second degree murder should be restored.

Per Sopinka and Major JJ. (dissenting):  Even if a jury does not believe the testimony of the accused or another defence witness, that testimony may, when considered in the context of the evidence as a whole, raise a reasonable doubt in the jury’s mind.  Accordingly, the trial judge must instruct the jurors that if they believe the testimony of the accused or the defence witnesses, they must acquit; even if they do not believe the testimony of the accused or the defence witnesses, if they have a reasonable doubt after considering the evidence as a whole, including the testimony of the accused and the defence witnesses, they must also acquit.  In this case, the trial judge instructed the jury that the evidence is what the jury believes and accepts out of the testimony and the exhibits.  He then told the jurors that even if they did not believe the accused’s testimony, if they had a reasonable doubt “on the basis of the evidence as a whole” they had to acquit on the charge of second degree murder.  Finally, he repeated that “only the facts disclosed by the witnesses you heard and have decided to believe constitute evidence”.  What the trial judge’s comments on the definition of “the evidence” and on the assessment of the testimony of the accused and the defence witnesses suggest is that if the jury did not believe the accused or the psychiatrist, their testimony was by definition not included in “the evidence” and therefore could not be considered when the jury asked itself whether it had a reasonable doubt on the basis of the evidence as a whole.  The trial judge erred in instructing the jurors that if they did not believe the accused, they could find a reasonable doubt only in the testimony of any other witnesses they had decided to believe.  There is a reasonable possibility that the jury might have been misled by these misdirections.

Cases Cited

By Sopinka J. (dissenting)

R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Cooper, [1993] 1 S.C.R. 146; R. v. Brydon, [1995] 4 S.C.R. 253; R. v. Challice (1979), 45 C.C.C. (2d) 546.

APPEAL from a judgment of the Quebec Court of Appeal, [1996] Q.J. No. 67 (QL), J.E. 96‑357, allowing the accused’s appeal from his conviction for second degree murder and ordering a new trial.  Appeal allowed, Sopinka and Major JJ. dissenting.

Pierre Goulet and Denys Noël, for the appellant.

Jean Villeneuve, for the respondent.

English version of  the judgment of La Forest, L’Heureux-Dubé and Gonthier JJ. delivered by

1                 La Forest J. -- For the reasons given by Deschamps J.A., dissenting in the Quebec Court of Appeal, [1996] Q.J. No. 67, J.E. 96-357, I would allow the appeal, set aside the judgment of the Court of Appeal and restore the conviction for second degree murder.

English version of the reasons of Sopinka and Major JJ. delivered by

2                        Sopinka J. (dissenting) ‑‑ The issue on this appeal is the accuracy of a jury charge concerning the burden of proof and reasonable doubt standard.  More specifically, it relates to the trial judge’s comments on the definition of “the evidence” and on the assessment of the testimony of the accused and the defence witnesses.  The majority of the Court of Appeal held that the trial judge had erred and ordered a new trial: [1996] Q.J. No. 67, J.E. 96-357.  I agree with the Court of Appeal for the following reasons.

Facts

3                        There is no question that Joseph Haroun stabbed his wife to death, since he admits to having done so.  However, he denies that he intended to kill her; he says that he acted in a state of mental unconsciousness and did not intend to kill her.  Dr. Jacques Talbot testified as a psychiatric expert.  After explaining the combined effect of the consumption of alcohol and medication (Ativan in this case), he expressed the opinion that the respondent could have committed the acts in question without the intent to kill.

4                        Since Mr. Haroun admitted to killing his wife, the jury had to choose between a verdict of second degree murder and a verdict of manslaughter.  The central issue was therefore whether the accused intended to kill his wife.

Analysis

5                        The trial judge instructed the jury as follows on what constitutes “the evidence”:

[translation] Now since your verdict must be based solely on the evidence, I have to tell you what does and does not constitute evidence.  The evidence consists solely in what you and you alone have decided or do decide to believe of the testimony you heard during this trial and, of course, of the evidence or exhibits produced and the admissions; for example, the victim’s identity is not in dispute but has been admitted.  So that and only that is the evidence.

6                        Shortly after this, he gave the following instructions concerning the credibility of the witnesses in general:

[translation] So it’s up to you and you alone to assess the evidence adduced and judge the honesty and credibility of the witnesses you heard.  In fact, the most important part of your role is to ask yourselves whether the witnesses you heard in Court during this trial told you not only the truth but the whole truth and nothing but the truth.  Or even if they told you the truth in relation to certain facts, they did not on the other hand try to hide or disguise that truth in relation to other facts or questions.

                                                                   . . .

In other words, for each of the witnesses you heard, whoever they may be, including the experts, you have the right to believe all their testimony, to believe only part of it or to believe none of it at all.

7                        He then instructed the jury on how to deal with the testimony of the accused:

[translation] So you heard a number of witnesses for both the Crown and the defence; once again, it is you and you alone who must judge the credibility of each of the witnesses, including the accused, who testified, and you have the right for each witness to believe all the testimony, to believe only part of it or to believe none of it at all.

8                        He later instructed the jury on reasonable doubt.  After explaining the reasonable doubt concept, he stated the following:

[translation] In other words, if, after hearing all the evidence . . . you conclude that the Crown has not proven that the accused is guilty beyond this reasonable doubt, this real doubt, this serious doubt, it is your duty to give the accused the benefit of the reasonable doubt and find him not guilty of the offence with which he is charged, but there is still the lesser and included offence of manslaughter.

9                        He added the following comments to comply with the directions given by this Court in R. v. W. (D.), [1991] 1 S.C.R. 742:

[translation] According to the most recent decisions of the Supreme Court, I must now say the following:

If you believe the accused, you must give him the benefit of the reasonable doubt as to his intent.  Second, even if you do not believe him, but on the basis of the evidence as a whole, including that of the expert witness, Dr. Talbot — if on that basis you have a reasonable doubt, you must also rule out second degree murder and find him guilty of manslaughter.  However, third, if you do not have a reasonable doubt following the testimony of the accused and are convinced that he intended to kill his unfaithful wife, your verdict must then be guilty of second degree murder.

10                      Shortly afterwards, he concluded as follows:

[translation] I will now give you my final instructions. . . . So it is your duty first to consult with one another, to discuss the case among yourselves and to deliberate, that is, to consider all aspects of the case, think about it and try to agree on a verdict, a verdict that is fair and legal, that is, a verdict founded, based solely and exclusively on the evidence adduced before you.  So only the facts disclosed by the witnesses you heard and have decided to believe constitute evidence, together with . . . the exhibits and admissions.

11                      In the course of its deliberations, the jury submitted a question, namely how to determine the accused’s mental state at the time of the act.  In answering, the trial judge said the following:

[translation] So if because of that fact, because of the combined effect of drugs, alcohol and mental disorder — the depressive state he was in — he did not have the specific intent necessary for second degree murder, he must instead be found guilty of manslaughter.  That’s what it comes down to, and what can help you is of course all the evidence — what was his mental state when he committed the act?  All the evidence, you also have to consider what his son said. . . . So there also is the testimony of the psychiatrist, who came to enlighten you, and as with all the witnesses, you can believe the psychiatrist, not believe him or believe him in part . . . . So if you find you have a reasonable doubt that he had the specific intent to kill at that moment, the verdict will be manslaughter.  Is that clear?

I should point out right away that the trial judge did not mention the testimony of the accused in this summary of the evidence as to the accused’s intent.

12                      Even if a judge or jury does not believe the accused’s testimony, that testimony may, when considered in the context of the evidence as a whole, raise a reasonable doubt in the judge’s or jury’s mind.  This fundamental principle is set out in W. (D.), supra, where Cory J. stated the following, at p. 757:

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.  See R. v. Challice (1979), 45 C.C.C. (2d) 546. . . .  [Emphasis in original.]

13                      In R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), Morden J.A. explained at p. 557 that this principle applies to all the defence evidence:

Understandably, a jury have to give careful consideration to issues of credibility when deliberating upon their verdict, and with respect to various pieces of evidence they may have differing views:  total acceptance, total rejection, or something in between.  An effective and desirable way of recognizing this necessary part of the process, and putting it to the jury in a way that accurately comports with their duty respecting the burden and standard of proof, is to instruct the jury that it is not necessary for them to believe the defence evidence on a vital issue — but that it is sufficient if it, viewed in the context of all the evidence, leaves them in a state of reasonable doubt as to the accused’s guilt:  see R. v. Lobell, [1957] 1 Q.B. 547 at p. 551, per Lord Goddard, C.J. [Emphasis added.]

This Court adopted the above comments as an accurate statement of the law in R. v. Morin, [1988] 2 S.C.R. 345, at p. 357.

14                      In W. (D.), the accused testified that the incidents described by the complainant had never occurred.  There was a simple contest of credibility between the accused and the complainant.  No one else testified for either the Crown or the defence.  It is therefore not surprising that Cory J. mentioned only the accused in his suggested charge (at p. 758).  However, it is clear from Challice and Morin that the principle stated by Cory J. also applies to other defence witnesses.  Whether the testimony is that of the accused or another defence witness, it is always possible that it will raise a reasonable doubt in the mind of the jury even if the jury does not necessarily believe it.  This principle is based on the Crown’s duty to prove that the accused is guilty beyond a reasonable doubt.  The accused has nothing to prove either by him- or herself or through the defence witnesses.

15                      Cory J.’s comments in W. (D.) thus apply not only to the testimony of the accused, but to the defence evidence as a whole.  Accordingly, the trial judge must instruct the jury, first, that if they believe the testimony of the accused or the defence witnesses, they must acquit.  Second, even if they do not believe the testimony of the accused or the defence witnesses, if they have a reasonable doubt after considering the evidence as a whole, including the testimony of the accused and the defence witnesses, they must also acquit.

16                      In the case at bar, the trial judge instructed the jury that the evidence is nothing other than what the jury believes and accepts out of the testimony and the exhibits.  He then told them that even if they did not believe the accused’s testimony, if they had a reasonable doubt “on the basis of the evidence as a whole” they had to acquit on the charge of second degree murder.  Finally, he repeated that “only the facts disclosed by the witnesses you heard and have decided to believe constitute evidence”. What these passages suggest is that if the jury did not believe the accused or Dr. Talbot, their testimony was by definition not included in “the evidence” and therefore could not be considered when the jury asked itself whether it had a reasonable doubt on the basis of the evidence as a whole.  In other words, the trial judge clearly instructed the jurors that if they did not believe the accused, they could find a reasonable doubt only in the testimony of any other witnesses they had decided to believe.

17                      The jury should have been instructed on the basis of the model set out in Challice, supra.  Not only did the trial judge fail to follow that model, but his definition of the evidence contradicted the instructions he gave on the basis of W. (D.).

18                      The appellant stressed the fact that in the present case, the jury did not have to choose between two conflicting versions of the facts.  It is true that the version of the facts put to the jury by the defence did not generally speaking contradict the Crown’s version.  The conflict related more to the accused’s mental state.  This was a vital issue.  The Crown alleged that the accused intended to kill his wife.  The accused submitted that, on the contrary, he lacked the intent to do so because of his state of mental unconsciousness.  If the jury believed the accused or had a reasonable doubt as to his intent, it had to acquit on the charge of second degree murder.  It seems clear to me that in that case the credibility of the accused was of the utmost importance.  The same was true of Dr. Talbot’s testimony.

19                      The appellant also pointed out that the charge must be read as a whole, that no charge is perfect and that the Court must not subject the charge to minute scrutiny: R. v. Cooper, [1993] 1 S.C.R. 146, at p. 163.  Rather, the Court must consider whether there is “a reasonable possibility that the jury might have been misled by those instructions into either applying a standard of proof less than proof beyond a reasonable doubt or improperly applying the burden of proof or reasonable doubt standard”:  R. v. Brydon, [1995] 4 S.C.R. 253, at p. 264.

20                      However, in the case at bar it is the appellant who is proposing that the charge be subjected to minute scrutiny.  It is by reading the charge as a whole that the error can be seen:  since the disbelieved testimony of the accused does not constitute evidence, it cannot raise a reasonable doubt.  There is therefore a reasonable possibility that the jury might have been misled by these misdirections.

21                      For these reasons, I would dismiss the appeal.

Appeal allowed, Sopinka and Major JJ.  dissenting.

Solicitor for the appellant:  Pierre Goulet, Sorel.

Solicitors for the respondent:  Shadley, Melançon, Boro, Montréal.