Linney v. The Queen, [1978] 1 SCR 646

Supreme Court of Canada

Linney v. The Queen, [1978] 1 S.C.R. 646

Date: 1977-01-25

George Joseph Linney Appellant;

and

Her Majesty The Queen Respondent.

1976: December 7; 1977: January 25.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law —Non-capital murder —Defence of provocation —Whether jury properly instructed as to doctrine of reasonable doubt —Whether miscarriage of justice —Criminal Code, s. 215.

L was charged with the murder by shooting of his neighbour S. On the night of the murder S had entered L’s house in a drunken state and, following an argument, had physically and verbally assaulted him. L retreated to his bedroom but was unable to secure the door and came out again with a shotgun, which he fired at S thereby killing him. L was charged with non-capital murder and pleaded self-defence and provocation.

In his instructions to the jury the judge explained the doctrine of reasonable doubt and applied it to the defence of self-defence. After a recess, he dealt with the defence of provocation but made no further reference to the doctrine of reasonable doubt. The appellant claims that the judge erred in law in failing to explain to the jury that if they were in doubt as to whether his act was provoked it was their duty to reduce the offence to manslaughter.

Held (Ritchie and de Grandpré JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson and Beetz JJ.: In a case such as this, the Appeal Court must decide what the jury understood rather than whether the correct formula was used by the trial judge in his charge to them. The judge’s instruction as to reasonable doubt may be express or implied. However, in the case at bar there were three references to the doctrine of reasonable doubt in relation to self-defence and none in relation to provocation, with the result that the jury could well have concluded that reasonable doubt and provocation were unrelated. Since the evidence of provocation was strong and the question as to whether the appellant acted under provocation was a matter of fact for the jury to decide, it cannot be said

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that a reasonable jury, properly directed, could not have done otherwise than find the appellant guilty of murder.

Per Ritchie and de Grandpré JJ., dissenting: While it is true that the jury must understand the law, it is also true that an appeal court must not impose a formula on the trial judge and it is in attempting to reconcile these two principles that differences of opinion may arise as to whether or not the judge misdirected the jury in any particular case. The present case may be distinguished from the Latour case where the judge stated that it was for the jury to say whether or not the necessary facts had been “established” to warrant a plea of self‑defence, in that there was no such misdirection in the case at bar where the judge used the words “find” and “decide”, which were approved in the Latour case. As to the doctrine of reasonable doubt, the “golden thread” of the presumption of innocence to which the judge referred at the outset is present throughout his remarks.

Mancini v. D.P.P., [1941] 3 All E.R. 272; R. v. Prince (1941), 28 Cr. App. R. 60; R. v. Kovach (1930), 55 C.C.C. 40; R. v. Harms, [1936] 2 W.W.R. 114; R. v. Illerbrun, [1939] 3 W.W.R. 546; R. v. Haight (1976), 30 C.C.C. (2d) 168; Latour v. The King, [1951] S.C.R. 19, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia dismissing appellant’s appeal from his conviction for non-capital murder. Appeal allowed and new trial ordered, Ritchie and de Grandpré JJ. dissenting.

J.E. Hall, for the appellant.

G.S. Cumming, Q.C., for the respondent.

The judgment of Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson and Beetz JJ. was delivered by

DICKSON J.—The appellant, George Joseph Linney, was convicted on a charge of non‑capital murder. An appeal to the British Columbia Court of Appeal was unsuccessful. By leave of this Court he now appeals on the following question of law:

Did the Court of Appeal err in failing to hold that there was non-direction amounting to a misdirection in that the learned trial Judge failed to instruct the jury that if they were in doubt as to whether the act of killing was

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provoked it was their duty to reduce the offence from murder to manslaughter?

The appellant was charged with murdering Eddie Leonard Strandlund on May 24, 1974, at Fort St. John, British Columbia. The appellant and Strandlund were neighbours and apparently friends. The appellant was of mild temperament and failing health. Strandlund was younger and aggressive. Strandlund had a serious alcohol problem. When drunk, he was given to violent and bulling conduct, at times abusing the appellant in a sadistic manner. On the night of the offence alleged in the indictment, Strandlund entered the appellant’s house uninvited and drunk. Six people were in the house The appellant, who had been asleep, got up to get something to eat. An argument ensued between the appellant and Strandlund in the course of which Strandlund assaulted the appellant, hit him over the head with a coffee pot, insulted him, threatened him and then began hurling things about the house. The appellant retreated to his nearby bedroom and sought unsuccessfully to fasten the bedroom door. Failing to do so, he emerged from the bedroom with a shotgun which he fired at Strandlund from a distance of a few feet, killing him. The principal defences put forward at trial were self‑defence and provocation.

Early in his charge to the jury, the trial judge adverted to the reasonable doubt doctrine in these words:

Now I should like to talk to you about the burden of proof beyond a reasonable doubt. The onus or burden of proof of the guilt of the accused person rests upon the Crown and never shifts. There is no burden on the accused person to prove his innocence. The Crown must prove beyond a reasonable doubt that the accused person is guilty of the offence with which he is charged before he can be convicted. If you have a reasonable doubt as to whether the accused committed the offence with which he is charged, it is your duty to give the accused the benefit of the doubt and find him not guilty. In other words if after considering all the evidence, the arguments of counsel and my charge you come to the conclusion that the Crown has failed to prove to your satisfaction beyond a reasonable doubt that the accused

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committed the offence with which he is charged, then it is your duty to give the accused the benefit of the doubt and to find him not guilty.

Following the quoted passage the trial judge discussed at length the general principles to be observed in a criminal case, reviewed the evidence in detail, instructed upon the applicable sections of the Criminal Code, and then after recess, dealt with the defences of self-defence and provocation. The charge as to self-defence included three references to reasonable doubt. When the judge came to consider whether the accused was provoked into committing the unlawful act he read to the jury s. 215 of the Code. He explained that there were two steps:

First you must decide if an ordinary person, not necessarily George Linney, but an ordinary person would have been deprived of self-control by the wrongful acts or insults of Strandlund…

The second test is that you must find if in fact the accused George Linney was provoked by these things, actually acted on the provocation on the sudden before it was time for his passion to cool. Now in coming to a conclusion on these two points you must answer the first question in favour of the accused before you can proceed to the second question.

Further instruction followed, concluding:

It follows that if you also answer the second question in the affirmative, that is to say, you find that Linney acted on the provocation on the sudden before there was time for his passion to cool, then you should bring in a verdict of manslaughter.

The judge made no reference to reasonable doubt while charging on provocation. In the final paragraph of the charge, speaking of jury unanimity, the judge said:

…if any of you has a reasonable doubt as to the innocence or guilty [sic] of the accused, it is your duty to obey your conscience and to refuse to be persuaded against your conscience by your fellow jurors.

The jury requested further instruction respecting “the legal definition of the term provoke and intent as related to the non-capital murder

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charge.” A lengthy recharge followed. The judge instructed the jury that:

…provocation is a defence to this [charge] in the sense that if you find provocation, the crime can be reduced from murder to manslaughter.

And again:

Now you’ve got to decide whether an ordinary person would be deprived of the power of self‑control by reason of those acts I have just described, then you go on to the second step… and decide if in fact George Linney was provoked…

In like manner:

It follows that if you answer the second question in the affirmative and find that George Linney actually acted on the provocation on the sudden, then you should bring in a verdict of manslaughter.

Reasonable doubt was not mentioned during the recharge.

The charge and recharge are attacked as defective for want of adequately relating reasonable doubt to the provocation defence. An appeal court, in assessing the adequacy of a jury charge, is looking for the general sense which the words used must have conveyed, in all probability, to the mind of the jury. The Court must be satisfied that the jury would understand the onus was on the Crown to prove each issue or negative each defence beyond a reasonable doubt. They must realize that the reasonable doubt doctrine is always engaged; that it is not displaced in respect of the defences. They must be clear in their minds that, if they have reasonable doubt on any issue, they have the duty to allow the accused to succeed on that issue.

The relevant question is what the jury understood, not whether or not a particular formula was recited by the judge. A jury charge is not a formulary and one set of words may well be as good as another. An appeal court ought not to be astute to draw recondite or precious distinctions, or to lay down precise formulae for articulating the principles upon which the jury must be

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instructed. That point was made by the House of Lords in Mancini v. D.P.P.[1] in rejecting the submission that the warning as to reasonable doubt must be repeated again and again while instructing on the various issues.

In the well-known case of R. v. Prince[2], Caldecote L.C.J. held a jury charge:

…insufficient having regard to the absence of any direction that, if upon a review of all the evidence, the jury were left in reasonable doubt whether, even if the appellant’s explanation were not accepted, the act was provoked, the appellant was entitled to be acquitted of the charge of murder.

That there should be a particular direction on reasonable doubt accompanying the instructions on defences is supported by such cases as R. v. Kovach[3]; R. v. Harms[4]; R. v. Illerbrun[5], and the recent case of R. v. Haight[6].

In Latour v. The King[7], the appellant was convicted of murder after a trial by jury. He had pleaded self-defence, provocation and drunkenness. The trial judge properly charged the jury as to the burden of proof and the benefit of doubt, in accordance with the words of Lord Sankey L.C. in Woolmington’s case[8]. The fault alleged, as in the case at bar, was that when the judge later dealt with the defences, he entirely failed to direct the attention of the jurors, in their consideration of the plea of provocation, to their duty to give the appellant the benefit of the doubt, if any, in favour of the lesser charge of manslaughter.

In Latour, the trial judge had also charged incorrectly in stating that it was for the jury to say whether or not the necessary facts had been “established” to warrant a plea of self-defence.

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The word “established” was also used in charging on provocation. In the present case, although the judge did not use the word “establish,” upon a fair reading of the entire charge, I cannot escape the conclusion that when the judge spoke repeatedly of “to find” and “to decide” the jury must have been left with the impression that there was an onus on the accused to satisfy them that the killing was provoked or, at least, to decide that issue upon a balance of probabilities. That is error in that it places a lesser burden on the Crown than the law requires. Provocation, in the relevant sense, is a technical concept and not easy to apprehend. The jury was clearly in a state of some doubt as it asked for further direction on provocation. The danger of the jury being misled into the belief that there was a burden on the accused would have been increased by the fact that the accused went into the witness box; see R. v. Lewis[9]. In all the circumstances I think that, when instructing the jury as to provocation, the judge should have told them that the appellant was entitled to a verdict of manslaughter if they found that the appellant was provoked, or if they entertained a reasonable doubt on the matter.

Counsel for the Crown contended that Latour’s case was authority for the proposition that the jury could be instructed as to reasonable doubt in relation to provocation, either expressly or by clear implication. I agree with that submission. Counsel then submitted that, in the present case, where the trial judge specifically instructed the jury with respect to application of the doctrine of reasonable doubt to the plea of self-defence and then turned immediately to the alternative verdict of manslaughter which, he explained, could result if the jury were of the view that the force used was excessive, or the accused was provoked, the principle that the accused should have the benefit of the doubt in relation to the issue of provocation was clearly implied. With respect, I do not think any such implication arises. On the contrary, the jury, having heard of reasonable doubt three times in

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relation to self-defence, and at no time in relation to provocation, could well have concluded that reasonable doubt and provocation were unrelated. The conclusion was open that self‑defence was dealt with on one basis, provocation on another.

Counsel for the Crown submitted that even if there was misdirection, as a matter of law, no substantial wrong or miscarriage of justice resulted. The evidence as to provocation is such, it is contended, that (i) a properly charged jury could not, as reasonable men, have found provocation; (ii) that Linney did not act on the sudden and before there was time for his passion to cool; and (iii) that what is alleged as provocation cannot be characterized by suddenness, nor did it strike upon a mind unprepared for it. As to (i), Mr. Justice Robertson, of the British Columbia Court of Appeal, said that the evidence of provocation was strong and I agree with him. The point raised in (ii) is something for a jury to decide. The argument on (iii) proceeds on the basis that because Linney had suffered insults and hurt from Strandlund more or less routinely for a considerable period, he would be inured to invective and abuse, so his mind would not be unprepared for what befell him on the night of May 24, 1974. I do not think that is inevitably so and, in any case, it is a question for the jury. Anyone may have a breaking point. I do not think that evidence of earlier bullying negates the possibility of provocation in a legal sense, or in any way makes the accused volens. I do not think one can properly say that a reasonable jury, properly directed, could not on the evidence adduced at the trial of the appellant have done otherwise than find the appellant guilty of murder.

I would accordingly allow the appeal, set aside the conviction, and direct a new trial.

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The judgment of Ritchie and de Grandpré JJ. was delivered by

DE GRANDPRE J. (dissenting)—I have had the advantage of reading the reasons prepared for delivery by my brother Dickson.

Like him, my guiding lights are two well recognized principles: that the accused must have received a fair trial in the sense that the jury has been made to understand the relevant law, and that an Appeal Court must be careful not to impose upon trial judges iron-bound formulae against which must be examined jury charges. It is the reconciliation of these two principles that gives rise to differences of opinion.

Appellant has relied heavily on the unanimous decision of this Court in Latour v. The King[10], where the judgment was delivered by Fauteux J. as he then was. A reading and re-reading of the charges in Latour and in the case at bar has convinced me that the differences between the two cases are so considerable that it is quite possible to reach here a different result. The Court in Latour was in the presence of numerous misdirections and reached its conclusion in the light of their gravity and of their combined effect. Two of these misdirections are relevant to the case at bar:

(1) the use by the trial judge of the word “established” in a context which suggested that the duty to establish was on the accused;

(2) the failure in examining the defence of provocation to make it plain that the principle as to reasonable doubt was applicable thereto.

The judgment of the Court deals at great length with the first of these misdirections and concludes at p. 27:

For, once properly instructed as to what the law recognizes as ingredients of self‑defence or of provocation, the accurate question for the jury is not whether the accused has established such ingredients but whether the evidence indicates them. And they, then, must be directed that, should they find affirmatively or be left in doubt on the question put to them, the accused is entitled, in the

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case of self-defence to a complete acquittal, or in the case of provocation to an acquittal of the major offence of murder.

(The underlining is mine.) Repeatedly, in his charge, the trial judge in Latour had used the expressions “if you decide”, “if you find”, “if you accept”, “should you decide” and these expressions are not criticized by the judgment of Latour which, on the contrary, asserts that the jury “must be directed that, should they find affirmatively…”. The only criticism of the Court is directed to the use of the word “established” in a context indicating that the burden was on the accused. We have no such misdirection in our case and it is not possible to find fault with the trial judge for having used the words “find” and “decide” which have clearly been approved in Latour.

The second relevant misdirection in Latour is the one of concern to us, namely as to reasonable doubt. In Latour, reasonable doubt had been referred to only in one part of the charge, that is at the outset when the judge was outlining to the jury the basic principles of law. It was not mentioned again when dealing with the defence of drunkenness, nor was it mentioned when dealing with self-defence or provocation. In my view, the situation is radically different here. After having in the first two paragraphs of his charge underlined the role of the jury in our law, and the functions of the judge and of the jury, his Lordship continues:

Now let’s deal a bit with the general law. First of all the presumption of innocence. The golden thread of this presumption is woven deep into the fabric of our law; simply put it means an accused person is presumed to be innocent until the Crown has satisfied you beyond a reasonable doubt as to his guilt. It is a presumption which remains with the accused from the beginning of the case until the end. This presumption only ceases to apply if having considered all the evidence you are satisfied with the accused’s guilt beyond a reasonable doubt. Now I should like to talk to you about the burden of proof beyond a reasonable doubt. The onus or burden of proof of the guilt of the accused person rests upon the Crown and never shifts. There is no burden on the accused person to prove his innocence. The Crown must

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prove beyond a reasonable doubt that the accused person is guilty of the offence with which he is charged before he can be convicted. If you have a reasonable doubt as to whether the accused committed the offence with which he is charged, it is your duty to give the accused the benefit of the doubt and find him not guilty.

Again, reasonable doubt is mentioned when dealing with the credibility of witnesses:

If you have reasonable doubt as to the accuracy of the evidence given by the witnesses for the Crown or the weight you should give to such evidence, you must give the benefit of that doubt to the accused and not to the Crown.

When dealing with the rule as to circumstantial evidence, the judge reiterates that the accused is entitled to the benefit of the doubt.

After a full review of the evidence, the judge examines the various defences raised. Three times, he refers to reasonable doubt on the issue of self-defence, concluding on this point with the following words:

If on the whole of the evidence and considering what I have said, there is reasonable doubt in your mind that the accused was acting in self-defence then you should bring in a verdict of not guilty.

Immediately afterwards he turns to the issue of manslaughter:

I would like to deal with manslaughter. Even after considering all the above you may believe the accused is not guilty of the non-capital murder as I have described it but neither is he entitled to be acquitted on the grounds of self-defence. In that event you should consider whether he is guilty of manslaughter, for one of two reasons. First, that although the accused, Linney, did act in self-defence the force used was excessive in the circumstances. If you find that, bring a verdict of manslaughter. Or second, that the accused was provoked into committing the unlawful act because of the actions of the deceased, Strandlund within the legal meaning of that word as I will now discuss it with you.

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Follows a lengthy discussion of the principles relevant to a plea of provocation, after which he concludes:

In summary, you may bring in a verdict of manslaughter if you find the accused acted out of self-defence but used excessive force in the circumstances or the accused was provoked into killing Strandlund as I have described provocation to you. This leaves you with three possible verdicts. 1) guilty as charged. 2) not guilty. 3) guilty of manslaughter.

In the closing remarks, I find the following words completing a short summary on the theory of the defence:

Thus the defence suggests there is a reasonable doubt as to whether or not Linney acted in self-defence and if you agree, then Linney ought to be acquitted.

The final instruction was, of course, about the desirability of unanimity:

Since this is a criminal trial it is necessary that you should be unanimous in your verdict, in other words it is necessary that each and all of you should agree on whatever verdict you may see fit to determine. Unless you are unanimous in finding the accused not guilty you cannot acquit him nor can you find a verdict of guilty unless you are unanimously agreed that he is guilty. While it is very desirable that you should reach an unanimous verdict of guilty or not guilty, never the less if any of you has a reasonable doubt as to the innocence or guilty of the accused, it is your duty to obey your conscience and to refuse to be persuaded against your conscience by your fellow jurors. However let me urge you to make every effort to reach a conclusion one way or the other. When you retire to the jury room you may take with you the Indictment and the Exhibits and once again I will remind you that you have three possible verdicts: guilty as charged; not guilty or guilty of manslaughter.

I find it impossible to conclude, on this charge read as a whole, that the pertinent directions as to reasonable doubt were not plainly given. The “golden thread” of the presumption of innocence to which the trial judge referred at the outset is ever present in his remarks. The benefit of the doubt rule is repeatedly brought home to the jury. Admittedly, the words “benefit of the doubt” were

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not used immediately next to the word “provocation” but the meaning is plainly there for any reasonable jury to grasp and understand.

More than once, the three possible verdicts are mentioned:

guilty of murder,

guilty of manslaughter,

not guilty.

As to the first one, the words used are in the best tradition of our criminal law. As to the third, again no valid criticism may be proffered: the benefit of the doubt is to play in favour of the accused whether applied to the evidence generally or more particularly to the plea of self‑defence. Between these two extremes stands the possible verdict of manslaughter and I cannot bring myself to believe that, instructed as they were, the members of the jury could avoid the conclusion that the doctrine of proof beyond reasonable doubt applied also to that verdict.

The more so, if it is noted that on more than one occasion the charge deals with the verdict of manslaughter by mentioning in the same breath: excessive use of force in self-defence and provocation. The jurors knew that they should bring in a verdict of not guilty if on the whole of the evidence, they had a reasonable doubt in their minds that the accused was acting in self‑defence. A logical and necessary corollary was that the same respect of the reasonable doubt rule was to be shown by them when dealing with the use of excessive force in self‑defence; thus, on that aspect of the case, when dealing with the possible verdict of manslaughter, reasonable doubt was plainly in the picture. To hold that it was also plainly there in relation to the other aspect of the possible verdict of manslaughter, namely the plea of provocation, is simply to have faith in the common sense of the jurors.

For these reasons, I am of the view that the situation here is very different from what it was in

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the case of Latour. I cannot but agree with the Court of Appeal which was unanimous in upholding the verdict.

I would dismiss the appeal.

Appeal allowed and new trial ordered, RITCHIE and DE GRANDPRÉ JJ. dissenting.

Solicitors for the appellant: DuMoulin, Black, Brazier & Hall, Vancouver.

Solicitors for the respondent: Cumming, Richards & Co., Vancouver.