Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Cory, Iacobucci and Major JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Appeal ‑‑ Procedure ‑‑ Trial judge's report to Court of Appeal ‑‑ Jury convicting accused of sexual offence against young boy ‑‑ Report to Court of Appeal submitted by trial judge on his own initiative indicating that had he been sitting alone he would not have convicted accused ‑‑ Report taken into account by Court of Appeal in finding verdict unsafe ‑‑ Whether report should have been considered by Court of Appeal ‑‑ Whether verdict unsafe ‑‑ Whether trial judge's charge adequate ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 682(1) .
Criminal law ‑‑ Appeal ‑‑ Procedure ‑‑ Trial judge's report to Court of Appeal ‑‑ Scope of report ‑‑ Circumstances in which Court of Appeal should request report from trial judge ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 682(1) .
Criminal law ‑‑ Sexual offence -- Young complainant ‑‑ Credibility -- Charge to jury ‑‑ Trial judge bringing to jury's attention problems they should consider in assessing young complainant's testimony ‑‑ Accused convicted of sexual offence largely on basis of complainant's testimony ‑‑ Whether trial judge's instructions to jury adequate -- Whether trial judge properly exercised his discretion in excluding comment on the evidence from his charge.
The accused was found guilty by a jury of engaging in anal intercourse with his step‑son. The complainant was 13 years old at the time of the trial and the only Crown witness on the material points. He was permitted to give sworn testimony after the appropriate inquiry by the trial judge. He testified that, from the age of five, he was subjected to repeated and violent sexual acts by the accused. The accused testified on his own behalf and denied the allegations. Credibility was the crucial issue and the jury believed the complainant over the accused. He appealed his conviction. The judgment of the Court of Appeal was still reserved, when the trial judge wrote, on his own initiative, a letter to the appeal panel expressing his reservations about the verdict. He indicated that he would not have found the accused guilty on the evidence at trial as he was of the view that such a verdict would have been unsafe. In light of the letter, the court received further submissions from counsel. In its judgment, the court held that it was entitled to factor the letter into its decision‑making, as the communication did not amount to reasons, or supplementary reasons, for judgment. The court found that the evidence of the complainant seemed difficult to believe as true, both on the face of the transcripts and in the eyes of the trial judge as conveyed through the trial judge's report, and concluded that the verdict was unsafe and ordered a new trial. The offence of "anal intercourse" did not exist at the time of the commission of the offence, though there was an offence of "buggery". The court held that this defect did not go to the heart of the charge, and gave leave to the Crown to amend the indictment to allege "buggery" instead of "anal intercourse". However, on the chance that some factual, legal or procedural remedy might be open to the accused based on this discrepancy, the court ruled that this was an independent ground for quashing the conviction and ordering a new trial.
Held (Lamer C.J. and Sopinka and Major JJ. dissenting): The appeal should be allowed.
Per La Forest, L'Heureux‑Dubé, Cory and Iacobucci JJ.: A Court of Appeal should not routinely request a report from a trial judge. Section 682(1) of the Code originated at a time when there was seldom a transcript made of the trial proceedings. Transcripts are now routinely available to the Courts of Appeal and it is on the basis of that record that their decisions should be made. It is only in those rare situations where something occurred which is not reflected in the record and upon which opposing counsel cannot agree that a report from a trial judge might be requested. A desire for comments with regard to the demeanour of a witness does not justify a request for a report. The assessment of the demeanour of a witness falls within the exclusive domain of the jurors as the triers of the facts. Here, the unsolicited report of the trial judge was not authorized by s. 682(1) and should not have been considered by the Court of Appeal. It pertained exclusively to evidence already in the record of the trial which was before the Court of Appeal.
The verdict of the jury must stand. In light of the evidence presented at trial, it is highly unlikely that the Court of Appeal would have concluded that the guilty verdict was unreasonable under s. 686(1)(a) of the Code were it not for the trial judge's comments contained in his report. The jury could have based its verdict upon the testimony of the complainant alone. The medical evidence was also consistent with the sexual abuse described by the complainant. There was thus clear evidence to support the verdict.
Further, the trial judge's charge did not contain any errors that would necessitate a new trial. The trial judge's directions adequately brought to the attention of the jury the problems that they should consider in assessing the testimony of a young complainant. Taken in the context of the entire charge, they provide proper instructions to the jury and there was no duty or need for the trial judge to make other comments upon the evidence. The charge was not only fair but also favourable to the accused. The trial judge's report must not be considered when reviewing the charge. To find misdirection upon reading the charge and the trial judge's report together would be to direct a new trial based upon the very report that should not have been considered.
Per Lamer C.J. and Major J. (dissenting): The Court of Appeal erred in finding that the trial judge's report was authorized under s. 682(1) of the Code. The section makes no provision for a report of a trial judge as was produced in this case. No request was made by the Court of Appeal for the report and the trial judge's comments pertained exclusively to evidence already in the record of the trial before the Court of Appeal. A report submitted on the trial judge's initiative, which does nothing more than elaborate on the evidence in the record in support of a conviction, is invalid under s. 682(1). In any event, even if the report were valid, the trial judge's comments exceeded the bounds of what properly could be received and relied upon by the Court of Appeal in a s. 682(1) report. Where a trial judge takes issue with the verdict of the jury, such a report cannot be taken into consideration by the Court of Appeal. This would amount to nothing less than inviting the trial judge to enter the appellate arena. In the context of a jury trial, the jury's version of the findings of fact must prevail over that of the trial judge. The comments contemplated within a trial judge's report are comments relating to material issues not apparent on the face of the transcript, such as the demeanour of witnesses, the comportment of counsel, the behaviour of the jury and the general atmosphere of a trial. A Court of Appeal may, however, request a report on any matter pertaining to a trial which, in its view, requires elaboration. Here, the intent of the trial judge in submitting the report was to express his view that the verdict of the jury was unsafe. The s. 682(1) report was not designed to provide trial judges with an open forum for impugning the findings of the jury and, assuming that the Court of Appeal had requested the trial judge's report, the contents of that report would amount to an improper interference by the trial judge in the appellate process, and should not have been relied upon.
The Court of Appeal erred in ordering a new trial on the ground that the verdict was unsafe. It is highly unlikely that the court would have concluded that the guilty verdict was unreasonable under s. 686(1)(a) of the Code were it not for the comments contained in the report. There was evidence in the testimony of the complainant and the other witnesses upon which the jury could have reasonably based a verdict of guilty. A physical examination of the complainant revealed findings consistent with the sexual abuse described by him. Given that the trial judge was satisfied that the complainant was of sufficient maturity to be sworn, and that his testimony was given in detail without significant internal inconsistencies, there was not a sufficient basis apart from the trial judge's report for the Court of Appeal to have found the verdict of the jury unsafe.
The proper forum for a trial judge to express his reservations regarding the credibility of the witnesses in the context of a jury trial is in the charge to the jury. Although the trial judge could not in his remarks to the jury go so far as to assert that he disbelieved the complainant's testimony, or that he believed the testimony of the defence witnesses, he could at least have suggested that, in his view, the jury should proceed cautiously in assessing the complainant's testimony. The ability of the jury to arrive at a just verdict is enhanced where such comment is offered, so long as the trial judge emphasizes to the jury that they remain at liberty to disagree with his view. Where, as in this case, the ultimate verdict rests largely on the complainant's credibility, added prudence on the trial judge's part is necessary to ensure that the primacy of the jury as the trier of fact is not compromised. Thus, while the charge to the jury appears sound on its own, when it is read together with the subsequent trial judge's report accepted by the Court of Appeal it is clear that the trial judge misdirected himself in his charge to the jury. This is an error of law which cannot be ignored. This error cannot be cured by application of the proviso in s. 686(1)(b)(iii) of the Code. Had the trial judge not misdirected himself with respect to the ambit of his charge to the jury, given the centrality of credibility to the verdict, it is not possible to say that a properly instructed jury would necessarily have convicted.
Finally, the Court of Appeal also erred in ordering a new trial on the basis of a difference between the laws at the time of trial and the laws at the time of the offence. The trial judge was correct in accepting the complainant's uncorroborated evidence based on the law in force at the time of trial and there is no factual, legal, or procedural argument triggered by the old offence or by the change of offence which would affect the outcome of a new trial. The Court of Appeal's order granting the Crown leave to amend the indictment should the Crown proceed with a new trial should be affirmed.
Per Sopinka J. (dissenting): The trial judge's report was not authorized by s. 682(1) of the Code. Such a report should be made only in the circumstances described by Cory J. However, the report's having been made and received discloses an error of law which might have affected the verdict. This cannot be ignored. When considered in the absence of the trial judge's views as to the credibility of the complainant, the trial judge's comments in the charge on the problems that the jury should consider in assessing the complainant's evidence were fair. Nonetheless, but for an error of law, the trial judge would have added a comment with respect to the reliability of this evidence. For the reason given by Lamer C.J., the trial judge was entitled to make such a comment which would have enured to the benefit of the accused. Absent the error in law, the verdict would not necessarily have been the same.
Cases Cited
By Cory J.
Referred to: R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Barrow, [1987] 2 S.C.R. 694; Vézina v. The Queen, [1986] 1 S.C.R. 2; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Sherratt, [1991] 1 S.C.R. 509; Mezzo v. The Queen, [1986] 1 S.C.R. 802; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. B. (G.), [1990] 2 S.C.R. 30.
By Lamer C.J. (dissenting)
R. v. Bowles (1985), 21 C.C.C. (3d) 540; R. v. Hawke (1975), 22 C.C.C. (2d) 19; R. v. MacEwen (1978), 39 C.C.C. (2d) 523; R. v. Chapman (1958), 29 C.R. 168; R. v. Pressley (1948), 7 C.R. 342; R. v. James (1945), 83 C.C.C. 369; R. v. Schrager (1911), 6 Cr. App. R. 253; R. v. Hart (1914), 10 Cr. App. R. 176; R. v. Boyd (1953), 105 C.C.C. 146; R. v. Gould (1958), 122 C.C.C. 253; R. v. Harris (1953), 105 C.C.C. 301; Baron v. The King, [1930] S.C.R. 194; R. v. Mathieu, [1967] 3 C.C.C. 237; Ungaro v. The King, [1950] S.C.R. 430; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Sherratt, [1991] 1 S.C.R. 509; Mezzo v. The Queen, [1986] 1 S.C.R. 802; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. B. (G.), [1990] 2 S.C.R. 30; R. v. Buxbaum (1989), 70 C.R. (3d) 20; R. v. R. (D.J.) (1991), 7 C.R. (4th) 300; Steinberg v. The King, [1931] S.C.R. 421; R. v. B. (F.F.), [1993] 1 S.C.R. 697; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v. Barbeau, [1992] 2 S.C.R. 845.
Statutes and Regulations Cited
Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, ss. 3, 11, 15.
Criminal Code , R.S.C. 1927, c. 36, s. 1020.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 155, 586 [rep. idem, s. 15], 609(1) [rep. & sub. 1972, c. 13, s. 55; am. 1985, c. 19, s. 206].
Criminal Code , R.S.C., 1985, c. C‑46 , ss. 159(1) [en. c. 19 (3rd Supp.), s. 3], 682(1) [am. c. 27 (1st Supp.), s. 203], 686(1)(a)(i), (b)(iii).
Criminal Code, S.C. 1953‑54, c. 51, s. 588(1).
Criminal Code, 1892, S.C. 1892, c. 29, s. 745.
Crown Cases Act (U.K.), 11 & 12 Vict., c. 78.
Authors Cited
Del Buono, Vincent M. "The Right to Appeal in Indictable Cases; A Legislative History" (1978), 16 Alta. L. Rev. 446.
Lagarde, I. Droit pénal canadien, 2e éd. Wilson & Lafleur, 1974.
O'Halloran, C. H. "Development of the Right of Appeal in England in Criminal Cases" (1949), 27 Can. Bar Rev. 153.
Popple, A. E. "Magistrate's report to Court of Appeal" (1961), 35 C.R. 56.
Stephen, Sir James Fitzjames. A History of the Criminal Law of England, vol. 1. London: MacMillan & Co., 1883.
Tremeear's Annotated Criminal Code, 6th ed. By Leonard J. Ryan. Toronto: Carswell, 1964.
APPEAL from a judgment of the Alberta Court of Appeal (1991), 84 Alta. L.R. (2d) 220, 120 A.R. 63, 8 W.A.C. 63, allowing the accused's appeal from his conviction on a charge of having anal intercourse with a small boy, and ordering a new trial. Appeal allowed, Lamer C.J. and Sopinka and Major JJ. dissenting.
Ken Tjosvold, for the appellant.
A. Clayton Rice, for the respondent.
//Lamer C.J.//
The reasons of Lamer C.J. and Major J. were delivered by
Lamer C.J. (dissenting) -- This case raises two related questions: under what circumstances may comments on the evidence by the trial judge be placed before a Court of Appeal in a trial judge's report under s. 682(1) of the Criminal Code , R.S.C., 1985, c. C-46 ; and how far may a trial judge go in commenting on evidence in his charge to the jury?
I. Facts
On February 23, 1990, before a judge and jury, the respondent was found guilty of engaging in anal intercourse with his step-son and sentenced to four years imprisonment. J.E., the complainant, was 13 years of age at the time of the trial and kindergarten-aged at the time of the alleged incidents. If his story is true, he lived for a period of some months in a household marked by brutal physical and sexual abuse.
The trial judge conducted an inquiry into J.E.'s understanding of the oath and was satisfied that he could be sworn to testify. J.E. was the only Crown witness on the material points. His sworn testimony was that, from the age of five, he was subjected to repeated and violent sexual acts by his step-father, the respondent. The respondent testified on his own behalf and denied the allegations.
Additionally, J.E. testified that his mother forced him to perform oral sex with her, that his step-brother forced him to perform oral and anal sex with him and that his step-sister coerced him to participate in sexual acts with her. All of these individuals denied such incidents took place. The defence's theory of the case was that J.E. was actually the victim of abuse over this period at the hands of his natural father. J.E. testified that he was not abused by his natural father, whom he saw periodically during this time; his mother, however, testified that he looked nervous and shaken after these visits. The case boiled down to a question of credibility and the jury believed J.E. over the accused.
The respondent's appeal to the Alberta Court of Appeal was argued on February 28, 1991. On June 21, 16 months after the trial, and while the judgment of the Court of Appeal was still reserved, the trial judge wrote a letter to the Chief Justice of the Court of Appeal containing the following comments:
This accused's appeal from conviction, as I understand it, has been argued and is now reserved.
I recall this trial very clearly. Were I sitting alone, I would not have found the accused guilty on the evidence at trial. I was of the view that a verdict of guilty would be an unsafe one and I would have said as much to the jury if I thought it were proper for me to do so -- bearing in mind the jury's function.
There were some improbabilities in the young complainant's testimony which concerned me and this, together with the evidence of the accused and the other defence witnesses, created a reasonable doubt in my mind.
I have been concerned about this case since the verdict, particularly when I sentenced [A.W.E.] for this serious crime. I remain concerned today.
Copies of this letter were forwarded to the Crown prosecutor and to defence counsel. The Court of Appeal asked for further submissions in light of this letter. Further written submissions were received and judgment rendered on November 21, 1991. The Court of Appeal found the verdict of the jury unsafe, quashed the conviction, and gave the Crown leave to proceed with a new trial if it so desired. On April 9, 1992, the Crown was granted leave to appeal to this Court, [1992] 1 S.C.R. x.
II. Relevant Statutory Provisions
Trial Judge's Report
682. (1) Where, under this Part, an appeal is taken or an application for leave to appeal is made, the judge or provincial court judge who presided at the trial shall, at the request of the court of appeal or a judge thereof, in accordance with rules of court, furnish it or him with a report on the case or on any matter relating to the case that is specified in the request.
(R.S.C., 1985, c. C-46 (as am. by c. 27 (1st Supp.), s. 203 ))
Buggery and Anal Intercourse
155. Every one who commits buggery or bestiality is guilty of an indictable offence and is liable to imprisonment for fourteen years.
(R.S.C., 1970, c. C-34)
159. (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.
(R.S.C., 1985, c. C-46 (as am. by c. 19 (3rd Supp.), s. 3 ))
III. Judgment Below
Court of Appeal (1991), 84 Alta. L.R. (2d) 220 (McClung and Côté JJ.A., and Wachowich J. (ad hoc))
The members of the Court of Appeal recognized that credibility was the central issue in this case, and based on the evidence in the record, they expressed having "very serious doubts" about the conviction. These doubts were apparently reinforced by the receipt of the communication from the trial judge expressing his reservations about the jury's verdict.
Côté J.A. considered the issue of the trial judge's report, noting that an earlier decision of the Alberta Court of Appeal, R. v. Bowles (1985), 21 C.C.C. (3d) 540, had interpreted s. 682(1) of the Code (then s. 609(1)) as constituting an open invitation from the court to the trial judge to make a report wherever circumstances dictate such a step. Côté J.A. held that the Court of Appeal was entitled to factor the letter into its decision-making, as the communication did not amount to supplementary reasons, nor could it be said to amount to "reasons for judgment" (p. 223).
Côté J.A. found that the evidence of the complainant seemed difficult to believe as true, whereas the witnesses who denied the allegations of the complainant seemed credible, both on the face of the transcripts and in the eyes of the trial judge as conveyed through the trial judge's report. He concluded (at p. 224):
In our view, the only way to do justice here is to say that this verdict is unsafe, order a new trial (should the Crown choose to have one), and say nothing more about the facts. That way we will not prejudice the course which any new trial might take.
The Court of Appeal also addressed the question of the offence under which the respondent was charged. At the time of the commission of the offence, there was no offence of "anal intercourse", though there was an offence of "buggery". The court held that this defect did not go to the heart of the charge, and that there would be no point in obliging the Crown to prefer a new information and indictment; however, on the chance that some factual, legal or procedural remedy might be open to the respondent based on this discrepancy, the court ruled that a new trial should be ordered. Côté J.A. refers to this finding as "an independent ground for quashing the conviction and ordering a new trial" (p. 225).
IV. Analysis
The issue to be decided in this case is whether the Court of Appeal was correct in ordering a new trial either on the basis of the unsafeness of the jury's verdict at trial, or alternately, on the basis of the discrepancy between the laws in force at the time the incidents occurred and the laws in force at the time of trial.
During its deliberations on the question of the unsafeness of the verdict in this case, the Court of Appeal accepted a report from the trial judge pursuant to s. 682(1) of the Code. This report cast serious doubt on the finding of guilt by the jury based on the trial judge's opinion on the credibility of the witnesses. What I shall consider below is both whether the trial judge was authorized to furnish a report to the Court of Appeal and whether the Court of Appeal was correct in receiving and relying on the contents of that report. Additionally, in the course of his report, the trial judge indicated that he would have conveyed his opinion in the charge to the jury if it had been proper for him to do so. I shall therefore also consider whether the trial judge was correct in directing himself not to place his comments on credibility before the jury.
A. The Trial Judge's Report
1. The History of the Trial Judge's Report in Canadian Criminal Law
While trial judge's reports have served an important function in the appellate process in Canada, the proper nature and scope of these reports have rarely been explored. In his annotation "Magistrate's report to Court of Appeal" (1961), 35 C.R. 56, A. E. Popple surveyed the case law considering this provision of the Code and aptly concluded that "[i]t is obvious that this report is no ordinary document" (p. 56). In order to determine if the trial judge's report in the present case was properly furnished to the Court of Appeal, it is necessary to better understand the purpose behind these reports. Toward this end, it is useful to briefly review the history of the trial judge's report in the context of the development of criminal appeals in Canada.
A report of the trial judge was unknown at common law as there was, until the 19th century, no appeal procedure from the verdicts of criminal trials on findings of fact or law. Criminal trials which resulted in convictions, however, could be reviewed by the mechanism of prerogative writs. The two most common writs employed for this purpose were the writ of habeas corpus, which could be used to free a prisoner where an error could be shown on the face of the warrant for committal, and the writ of certiorari, which could be used to overturn a conviction where it could be shown that the trial judge lacked jurisdiction. Another important route by which a conviction could be set aside was the writ of error, which, by the 18th century, could be sought as of right where the record of a criminal trial disclosed a mistake in the recording of the indictment, the plea, the verdict, or some other material aspect of the trial: see C. H. O'Halloran, "Development of the Right of Appeal in England in Criminal Cases" (1949), 27 Can. Bar Rev. 153, at pp. 157-58.
The forerunner of our current system of criminal appeals was the practice which gradually evolved in England whereby a guilty verdict in a criminal case could be reviewed by the trial judge reserving a question of law for the consideration of the other judges who convened informally at Serjeant's Inn, of which all the judges were members. If the judges were persuaded by counsel that the accused had been improperly convicted, a pardon was granted. This practice was regularized in 1848 with the enactment of the Crown Cases Act (U.K.), 11 & 12 Vict., c. 78, under which the trial judge gained the statutory discretion to state a question of law and reserve a case to be heard by the Court for Crown Cases Reserved. However, as with the prerogative writs, the stated question of law had to be decided solely on the basis of the record before the Court of Appeal.
Traditionally, however, no formal record was kept of the evidence at trial, or of the direction given by the judge to the jury. As Sir James Stephen explained in the following passage from A History of the Criminal Law of England (1883), vol. 1, at pp. 308-9, the lack of any reliable record of events at trial was a central impediment to the development of any formal appellate procedure in England:
As I have already observed the only document connected with a trial necessarily put into writing is the indictment. Upon this the clerk of assize or other officer of the court makes certain memoranda, showing the plea of the prisoner and the verdict of the jury. He also keeps a minute book in court in which he makes a note of the names of the jurors by whom different sets of cases are tried, an abstract of the indictments, and a memorandum of pleas, verdicts, and sentences. This is a mere private memorandum book having no legal authority, and kept merely for the purposes of the officer who keeps it. He is under no obligation to keep it. No form is prescribed in which it is to be kept, and it never becomes in any way a public record. In all cases, however, except an infinitesimally small number, it is the only record kept of criminal trials, and nothing more meagre, unsatisfactory, and informal can well be conceived.
In submitting proposals to the Criminal Code Commission on the establishment of a statutory regime of criminal appeals in England in the late 19th century, Sir James Stephen advocated instituting a public record of the proceedings at trial. He suggested in this proposal instituting the following practice (at p. 318):
... that the Court of Appeal should have power to call for the judge's notes, and to supply them if they are considered defective by any other evidence which may be available, -- a shorthand writer's notes for instance. We consider the statutory recognition of the duty of the judge to take notes as a matter of some importance.
This proposal was adopted under Part LII of Canada's first Criminal Code in 1892 (S.C. 1892, c. 29) which consolidated a patchwork of earlier legislation and practice relating to criminal appeals: see V. M. Del Buono "The Right to Appeal in Indictable Cases; A Legislative History" (1978), 16 Alta. L. Rev. 446. In outlining the evidence that was to be put before a Court of Appeal under this new statutory scheme, s. 745 of the Criminal Code, 1892 provided the following:
745. On any appeal or application for a new trial, the court before which the trial was held shall, if it thinks necessary, or if the Court of Appeal so desires, send to the Court of Appeal a copy of the whole or of such part as may be material of the evidence or the notes taken by the judge or presiding justice at the trial. The Court of Appeal may, if only the judge's notes are sent and it considers such notes defective, refer to such other evidence of what took place at the trial as it may think fit. The Court of Appeal may in its discretion send back any case to the court by which it was stated to be amended or restated.
Thus, prior to regular and reliable court reporting, the judge's notes of the trial formed an essential part of the record before the Court of Appeal. These notes would typically refer to the testimony given by particular witnesses, the central pieces of evidence in the case, and any noteworthy occurrences at trial.
The notes of the trial judge are referred to, however, in the 1927 Criminal Code (R.S.C. 1927, c. 36 ), though with the dimension of the trial judge's "report" added. Section 1020 provided:
1020. The judge or magistrate before whom a person has been tried on an indictment shall, in the case of appeal under this Part against the conviction or against the sentence, or in the case of an application for leave to appeal under this Part, furnish to the court of appeal, in accordance with rules of court, his notes of the trial; and shall also furnish to the court of appeal in accordance with rules of court, a report giving his opinion upon the case or upon any point arising in the case.
Thus, for the first time, the trial judge was placed under a statutory duty to append a report giving an opinion on the case or any point arising in the case. This amendment to the section entrenched a practice that had, I believe, developed as a result of the growing centrality of the judge's notes. Where such notes were not self-explanatory, or if the trial judge was concerned that something in the notes, or omitted from the notes, could mislead a Court of Appeal, the trial judge might choose to, or be requested to, append an explanation to these notes. It was the informal explanation accompanying the trial judge's notes that most likely evolved into the statutory requirement that trial judges furnish a report to the Court of Appeal.
As accurate transcripts of proceedings became commonly available, the Court of Appeal's need for the judge's notes taken at trial diminished. By the 1950's, the section was amended to remove the statutory duty on the trial judge to provide notes of the trial: S.C. 1953-54, c. 51, s. 588(1). The duty to furnish the Court of Appeal with a report, however, remained in force. The section now read as follows:
588. (1) Where, under this Part, an appeal is taken or an application for leave to appeal is made, the judge or magistrate who presided at the trial shall furnish to the court of appeal, in accordance with rules of court, a report giving his opinion upon the case or upon any matter relating thereto.
Given the increasing reliability of the materials placed before the Court of Appeal, the justification for a report from the trial judge offering his "opinion upon the case" was less clear. This anomaly is concisely expressed in the following passage from Tremeear's Annotated Criminal Code (6th ed. 1964), at p. 1088:
It is difficult to see the justification for the provision, enabling the trial judge or magistrate to make "a report giving his opinion upon the case or upon any matter relating thereto." Where the evidence has not been taken in shorthand, it is obvious that the judge's notes must be made available on the appeal, but the report here contemplated is additional to the notes of the evidence, or to the official shorthand report of the proceedings. It is not usual in other appeals for the trial judge to furnish an ex parte explanation of, or justification for, his decision, and it would seem to be especially objectionable in criminal proceedings, where the liberty of the subject is at stake.
Despite such misgivings, the provision remained unchanged until 1972. In an amendment to the Criminal Code in that year (S.C. 1972, c. 13, s. 55), the provision was redrafted in the following manner:
609. (1) Where, under this Part, an appeal is taken or an application for leave to appeal is made, the judge or magistrate who presided at the trial shall, at the request of the court of appeal or a judge thereof, in accordance with rules of court, furnish to it or him with a report on the case or on any matter relating to the case that is specified in the request.
The requirement that the trial judge include his "opinion" in the report was thus removed. Additionally, the amendment specified that the section no longer imposed a statutory duty on trial judges to furnish a report. This reform did not signify that the trial judge's report was now regarded as less important, but that the continued burden on judges to file a report whether or not they had any opinion of substance to offer was no longer seen as necessary.
The current provision in force, s. 682(1) of the Code, is identical to this last version save for the substitution of "provincial court judge" for "magistrate" (R.S.C. , 1985, c. 27 (1st Supp.), s. 203).
In light of this historical background, I shall now consider whether the Alberta Court of Appeal was correct in its interpretation of s. 682(1) of the Code in this case.
2.Was the Trial Judge's Report Authorized under Section 682(1) of the Code?
In the present case, according to Côté J.A., the trial judge's report was received "unexpectedly" by the Court of Appeal while the case was under reserve. After considering submissions from the parties on whether the report was valid and should be received under s. 682(1), the Court of Appeal concluded the following: "... we cannot say that there was any impropriety whatever in sending in this report, or that we should shut our minds to such relevant information" (p. 223).
The Court of Appeal held that there was a general invitation to trial judges in Alberta to submit a report on a case where the trial judge felt the circumstances justified such a measure. The court relied on its earlier interpretation of this section in Bowles, supra, at pp. 546-47, wherein the following statement regarding the invitation to trial judges was made:
Care must be taken to maintain the distinction between a transcript of those oral reasons for judgment actually delivered at hearing, which must be furnished to the Court of Appeal pursuant to s. 609(2)(c) of the Code, and any report on the case by the trial judge pursuant to s. 609(1). The latter are authored by the trial judge and are not limited to what actually was said at trial; the former are certified by a court reporter to this Court as "a true and faithful transcript of the proceedings taken down by us". Transcripts of oral reasons have been available in Alberta for many years and the resulting practice of this Court has been to refrain from asking for reports under s. 609(1) [now s. 682(1)] except in unusual circumstances. It is fair to say, however, that the practice is that there is a standing invitation from this Court to make a report under s. 609(1) whenever circumstances dictate such a step. Care must be taken not to abuse the process. ... [Emphasis added.]
With respect, I cannot completely agree with this interpretation. By express amendment to this section of the Code, a trial judge's report is now authorized only where requested by the Court of Appeal. Parliament has dictated that only the Court of Appeal may decide under what circumstances a trial judge's report is needed. Issuing a general invitation to trial judges to submit reports would be tantamount to restoring the old section. However, if the trial judge wishes to make a comment which relates to material issues not apparent on the face of the transcript, such as observations regarding the behaviour of a juror or the demeanour of a witness, there is no way for a Court of Appeal independently to learn of the existence of the judge's opinion. In these circumstances, it is only logical that a Court of Appeal may issue a standing invitation to the judges of that province to inform it of such relevant information.
The correct view was adopted in R. v. Hawke (1975), 22 C.C.C. (2d) 19 (Ont. C.A.), where Dubin J.A. (as he then was) held that a report submitted on the trial judge's initiative, which did nothing more than elaborate on the evidence in the record in support of a conviction, was invalid under s. 609(1) (now s. 682(1)). The section seems to me similarly unambiguous in such circumstances.
With respect to the report in this case, the trial judge's comments pertained exclusively to evidence already in the record of the trial before the Court of Appeal. Therefore, I find the Court of Appeal erred in finding the report of the learned trial judge authorized under s. 682(1). However, as I shall now briefly discuss, even if the report in this case were so authorized, I am of the view that the trial judge's comments exceeded the bounds of what properly could be received and relied upon by the Court of Appeal in a report under this section.
3.Did the Court of Appeal Err in Receiving and Relying upon the Trial Judge's Report?
It is well established that a trial judge, in furnishing the Court of Appeal with a report, must be vigilant to avoid simply expanding upon reasons or rulings previously given or providing reasons where none were given at trial. In such circumstances, a trial judge's report will be held invalid: R. v. MacEwen (1978), 39 C.C.C. (2d) 523 (P.E.I.S.C. in banco), at p. 526; R. v. Chapman (1958), 29 C.R. 168 (B.C.C.A.), at p. 177; R. v. Pressley (1948), 7 C.R. 342 (B.C.C.A.), at pp. 343-44; and R. v. James (1945), 83 C.C.C. 369 (B.C.C.A). However, where a trial judge takes issue with the verdict of the jury, a series of older cases adopted the position that this disapproval, which alone cannot justify the setting aside of a verdict, may be a factor taken into consideration by the Court of Appeal: R. v. Schrager (1911), 6 Cr. App. R. 253, at p. 254; R. v. Hart (1914), 10 Cr. App. R. 176, at p. 178; R. v. Boyd (1953), 105 C.C.C. 146 (Ont. C.A.), at pp. 150-51; and R. v. Gould (1958), 122 C.C.C. 253 (Ont. C.A.).
In this case, the Court of Appeal, without expressly referring to this earlier line of cases, justified its reception of the contents of the trial judge's report on the following basis (at p. 223):
The Crown cites authority forbidding a judge appealed from to give supplementary reasons for judgment pending appeal. But that is not the situation here. There was a jury. The trial judge did not give reasons for judgment before appeal, nor is this document reasons for judgment. If anything, it is the opposite, for it gives comments tending strongly against the conviction which was entered at trial after the jury's verdict.
This raises the issue of whether the Court of Appeal was correct in suggesting that a trial judge's report can be utilized to undermine the verdict of the jury.
The trial judge remarked in his report that had he been sitting without a jury, he would not have convicted the accused. A similar statement was made by the trial judge in Gould, supra. In that case, Roach J.A., speaking for the Ontario Court of Appeal, held that such a report should be taken into consideration. After receiving the trial judge's report, however, Roach J.A. concluded the following (at p. 255):
From the very fact that the jury convicted the accused it is equally clear that they were not as favourably impressed by that evidence as was the learned trial Judge and, unfortunately for the accused, the jury's estimate must prevail over that of the learned trial Judge unless it appears to this Court that in not giving effect to it the jury acted unreasonably.
I agree with the principle that the views of the jury must prevail. Because of the importance of this principle, however, I am unable to agree with the view expressed by the Ontario Court of Appeal in Gould that a report containing a trial judge's disapproval of a jury's verdict should be a factor considered by a Court of Appeal. This, in my view, would amount to nothing less than inviting the trial judge to enter the appellate arena.
Of course, the situation is quite different where the contents of a trial judge's report contradict his or her own earlier reasons in a case. In those circumstances, it might well be necessary for the Court of Appeal to take into account such comments in order to determine which version of the trial judge's findings should prevail; see R. v. Harris (1953), 105 C.C.C. 301 (B.C.C.A.). In the context of a jury trial, however, there is no question that the jury's version of the findings of fact prevails over that of the trial judge.
The concern that, by the mechanism of the report, trial judges might influence rather than assist the appeal process has echoed through the case law from the very first attempts to interpret this statutory power. In Baron v. The King, [1930] S.C.R. 194, at p. 197, which contained the first pronouncement of this Court on the nature of the trial judge's report, Anglin C.J. stated the following:
S. 1020 provides that, as part of the material to be put before the court of appeal, the trial judge or magistrate shall furnish to the court "his notes of the trial" and shall also send "a report giving his opinion upon the case or upon any point arising in the case" and apparently contemplates this being done immediately after the trial, or at least, so soon as an appeal is lodged. It was never intended by this section to enable the trial judge, after an appeal had been argued, to put before the court of appeal by way of certificate or otherwise, whether propio motu or by direction of the court of appeal, his answer to the various points taken upon the appeal. That, in substance, is what has been done in this case. We cannot regard such a certificate of the trial judge as having been properly given, nor as a report within s. 1020.
The principle that a trial judge should not be permitted by virtue of a report on the case, to insert him or herself in the appellate arena, is articulately set forth in R. v. Mathieu, [1967] 3 C.C.C. 237 (Que. Q.B.), at p. 243, per Casey J.:
I cannot believe that this section of the Code imposes on a trial Judge the duty or gives him the right to explain or justify, ex parte, his decision. I find it difficult to believe that this report which the Code appears to intend only for the Court of Appeal, should contain anything more than the trial Judge's views on such things as the incidents of the trial or the credibility of the accused and of the witnesses. It is inconceivable that any Judge should have the right to plead before the Court of Appeal: and yet this is exactly what happens every time a trial Judge undertakes to answer the grounds of appeal urged by the person whom he has convicted.
Though restrictions on the scope of a trial judge's report have been common, courts have less frequently commented at length on its proper contents. In Ungaro v. The King, [1950] S.C.R. 430, at p. 443, Locke J. (dissenting) acknowledged in the following statement that judges are provided with little guidance in this regard: "It is, I think, unfortunate that the section of the Code does not indicate more clearly the nature of the report to be made." Given the lack of certainty respecting Parliament's intent in enacting this provision, the case law has tended to shy away from clarifying the scope of the trial judge's report. A detailed review of this jurisprudence is found in I. Lagarde, Droit pénal canadien (2nd ed. 1974), after which the following instructive guidelines are offered regarding the contents of a trial judge's report (at p. 1661):
[translation] After this review of the case law, a judge's report can, it seems, be defined as an explanation of facts which the transcript of the evidence is incapable of disclosing. In other words, this report constitutes the judge's opinion based on what he has seen and noted: behaviour, hesitation and reticence on the part of witnesses, conduct and comprehension of jurors.
I agree with this description of the nature of the comments contemplated within a trial judge's report. However, an appellate court may request a report from a trial judge on any matter pertaining to a trial which, in its view, requires elaboration. This will obviously include comments on a wide range of issues.
I wish to stress that the trial judge's report continues to play a useful role in the appellate process. There are often material elements to a trial that never will find their way into the transcripts or the record before the Court of Appeal. These include, as indicated above, the demeanour of witnesses, the comportment of counsel, the behaviour of the jury and the general atmosphere of a trial. Observing and evaluating these aspects of a trial is a skill in which the trial judge will usually have considerable experience and expertise. This experience and expertise provides, in my estimation, a valuable resource from which the Court of Appeal may draw.
In the present case, the intent of the trial judge in submitting the report was to express his view that the verdict of the jury was unsafe. With respect, it cannot have been Parliament's intent in enacting s. 682(1) to provide trial judges with an open forum for impugning the findings of the jury in this fashion.
This Court has, of late, emphasized the increasing trust and respect afforded juries in our criminal system; see R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1309, and R. v. Sherratt, [1991] 1 S.C.R. 509, at p. 523. As McIntyre J. observed in Mezzo v. The Queen, [1986] 1 S.C.R. 802, at p. 845:
There may have been a time when a paternalistic approach to unsophisticated jurors was justified. That time is now past and modern jurors represent a well-educated, well-informed and experienced cross-section of our society. If it is unsafe to preserve in today's world the distinction between the functions of a judge and jury, that fact would count as an argument for the entire abolition of the jury system rather than for a mere change in the law relating to the extent of the jury's role. This would be a development that I would much regret.
Therefore, I find that assuming that the Court of Appeal had requested the trial judge's report in the present instance, the contents of that report would amount to an improper interference by the trial judge in the appellate process, and should not have been relied upon.
B. Was the Verdict of the Jury Unsafe?
I shall now review the findings of the Court of Appeal in light of my conclusion that the trial judge's report was invalid. Even without the report, the Court of Appeal was empowered under s. 686(1) (a)(i) of the Criminal Code to find that the verdict in this case was unreasonable or unsupported by the evidence. As this Court held in R. v. Yebes, [1987] 2 S.C.R. 168, the Court of Appeal, in making such a determination, is obliged to "re-examine and to some extent reweigh and consider the effect of the evidence" (p. 186). Though this applies to findings of credibility, this Court has held that deference should be shown to those findings made at trial; R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 131.
In the Court of Appeal, Côté J.A. expressed the finding on this question in the following terms (at pp. 223-24):
Only the complainant gave evidence of any crime. (The one other Crown witness was called for a peripheral point.) There are things in the evidence of the complainant which seem to us difficult to accept as true. And there is evidence of innocence by a number of witnesses who sound credible (in the cold print of the transcript). They evidently looked and sounded credible to the trial judge.
In our view, the only way to do justice here is to say that this verdict is unsafe, order a new trial (should the Crown choose to have one), and say nothing more about the facts. That way we will not prejudice the course which any new trial might take.
The key issue to resolve would thus seem to be to what extent did the Court of Appeal rely on the tainted trial judge's report? If no reliance was placed on the report, then the invalidity of the report is no justification for disturbing the finding of the Court of Appeal.
Prior to the arrival of the trial judge's report, Côté J.A. stated that "[a]ll three members of the panel who heard argument felt that the evidence left them with very serious doubts" (p. 222). In my view, however, it is highly unlikely that the Court of Appeal would have concluded that the guilty verdict was unreasonable under s. 686(1)(a) were it not for the comments contained in the report.
There was certainly evidence in the testimony of the complainant and the other witnesses upon which the jury could have reasonably based a verdict of guilty. A physical examination of the complainant, accepted by the trial judge, revealed findings consistent with the sexual abuse described by him. Moreover, as this Court has indicated in R. v. W. (R.), supra, and R. v. B. (G.), [1990] 2 S.C.R. 30, at p. 54, the testimony of children should not be evaluated by adult standards. Rather, a flexible "common sense" approach to such testimony should be employed. Given that the trial judge was satisfied that J.E. was of sufficient maturity to be sworn, and that his testimony was given in detail without significant internal inconsistencies over the course of more than two hours of testimony, there was not, in my opinion, a sufficient basis apart from the trial judge's report for the Court of Appeal to have found the verdict of the jury unsafe. Therefore, I find the Court of Appeal erred in ordering a new trial on this ground.
C. The Trial Judge's Charge to the Jury
Although I have concluded that the comments of the trial judge in this case were improperly placed before and relied upon by the Court of Appeal, this is not to suggest that there was no opportunity for the trial judge's to convey his reservations regarding the credibility of the witnesses. The proper forum for a trial judge to express such comments in the context of a jury trial is in the charge to the jury.
It is evident from the trial judge's report submitted to the Court of Appeal that the trial judge directed himself to exclude any comment on the evidence from his charge to the jury. In his report, the trial judge stated:
I recall this trial very clearly. Were I sitting alone, I would not have found the accused guilty on the evidence at trial. I was of the view that a verdict of guilty would be an unsafe one and I would have said as much to the jury if I thought it were proper for me to do so -- bearing in mind the jury's function.
There were some improbabilities in the young complainant's testimony which concerned me and this, together with the evidence of the accused and the other defence witnesses, created a reasonable doubt in my mind.
Was the trial judge correct in excluding from the jury any comment on the evidence? The role of the trial judge in the charge to the jury is to assist it in its deliberations, but that assistance must fall short of supplanting the trial judge's view of the facts or the evidence for that of the jury. There is no evidence in this case that the trial judge was unmindful of the supporting nature of his role in the jury's fact-finding process. As the following passage from his charge indicates, the trial judge emphasized to the jury that they were the trier of fact:
... I may express some opinions on evidence, some opinions on witnesses. When I do that, I interfere in your area, but I only do it to assist you, and you disregard my remarks if you don't accept them. ... That's your job. That's your province.
You are the sole judges of fact.
Although the scope of the trial judge's discretion to comment on evidence during a charge to the jury has never been precisely delineated, the case law does provide some guidance as to what a trial judge may and may not include in his or her charge. For example, in R. v. Buxbaum (1989), 70 C.R. (3d) 20, at p. 26, the Ontario Court of Appeal held, per curiam, that the trial judge had not erred in casting doubt on the credibility of the accused by posing, in his charge to the jury, a series of rhetorical questions designed to suggest a doubt to the jury regarding the accused's testimony. The court in that case elaborated the proper factors to consider in determining whether the trial judge had exceeded his or her discretion to offer a comment on the evidence in the charge to the jury:
While it might have been preferable for the trial judge to have avoided the rhetorical form of his comment, we cannot find that he transgressed upon his privilege. He made it abundantly clear throughout the charge that the jury were the judges of fact and should ignore his comments if they disagreed with him. It was a long and difficult trial and the trial judge was under an obligation to assist the jury in marshalling the evidence. Moreover, the comment appears to be warranted on the evidence and did not, in our opinion, deprive the accused of a fair presentation of his case. This court has held that we should not lightly interfere with the discretion of the trial judge to make fair comments on the evidence and the credibility of witnesses: R. v. Newell, [1941] O.W.N. 465, 77 C.C.C. 81 at 85-87, [1942] 1 D.L.R. 747 (C.A.).
When then does a trial judge exceed the discretion to offer a comment on the evidence to the jury? In R. v. R. (D.J.) (1991), 7 C.R. (4th) 300, the British Columbia Court of Appeal set aside a conviction on the grounds of an error by the trial judge in including comments on the credibility of a witness in his charge to the jury. The facts of that case are similar to the facts before us in the present appeal. The accused was alleged to have sexually assaulted the child of the woman with whom he was living. Credibility was, as it is here, the main factor in determining innocence or guilt of the accused. The jury had to choose between believing the evidence of the complainant (who was 13 at the time of trial and eleven at the time of the alleged incidents) and the evidence of the accused who had denied the allegations. In his charge, the trial judge offered the following comment on the complainant's testimony:
I must say with regard to the evidence of A, I was impressed with her demeanour as a witness and the manner in which she presented her evidence, and with her testimony, which I believed. That is my opinion, but as I have told you, it is for you to assess the evidence. You may reject my opinion, since the question of credibility is for you to decide.
The British Columbia Court of Appeal concluded that the trial judge in the above passage had gone too far and prejudiced the fairness of the trial. A new trial was ordered on the basis of that misdirection.
I agree that a trial judge must avoid expressing a view indicating that he or she either believes or disbelieves a particular witness. Though such a comment may be motivated by a desire to assist a jury, and notwithstanding the emphasis to the jury that they could disregard the opinion of the trial judge, it is fatal to the fairness of a trial for a trial judge to offer the jury a conclusion on evidence from which a finding of guilt or innocence would logically follow.
This raises a concern in my mind. After hearing all the evidence in this case, the trial judge genuinely believed a conviction to be unsafe. He could certainly not express this conclusion to the jury in his charge and still ensure the fairness of the trial. Prior to this Court's decision in Mezzo, supra, there was authority indicating that a trial judge who believed a conviction to be unsafe could direct the jury to enter a verdict of acquittal. However, the majority of this Court held in Mezzo that so long as there is any evidence upon which a jury may reasonably convict, the trial judge cannot exercise his or her discretion to direct such a verdict, irrespective of the judge's conclusion respecting the safety of a conviction in the circumstances of the case. It is thus understandable that the trial judge would wish to include his views in an ex post facto report to the Court of Appeal. After considering s. 682(1) of the Code, however, I have found that Parliament did not intend for the trial judge to intervene in the appellate process in such a fashion. Therefore, the trial judge is left with no forum for expressing his or her conclusion on the evidence or on the safety of a conviction. I find this result troubling.
However, while the trial judge was constrained in what he could convey to the jury in his charge, it was at least open to him during the course of his remarks to the jury to have indicated that, in his view, the jury should proceed cautiously in assessing the evidence of the complainant. In order to determine if the trial judge properly exercised this discretion to comment on the evidence to the jury, it is helpful at this juncture to examine the portion of the trial judge's charge pertaining to the testimony of J.E.:
Now, [J.E.]'s evidence is that of a 13-year-old boy. Now, you are not inexperienced with life. You have dealt with children. You have dealt with adults. Don't leave your common sense at home when you are assessing this child's evidence. You are called because of your collective wisdom and experience in dealing with people and assessing facts. Use that in deciding who you are going to believe in this case, what you are going to do with the evidence, and how you are going to weigh it.
Now, I questioned [J.E.], as you saw, before he took the oath. I asked him some questions about whether or not he understood the nature of an oath and whether or not he was able to communicate answers to questions on a fairly intelligent basis. You saw him answer the questions. You saw him deal with them. You also saw him answer and heard him answer questions from both counsel for quite a period of time.
Now, he is a 13-year-old boy, and he has had not a nice life. You can't punish the accused because he hasn't had a good life, unless you are satisfied it was the accused who perpetrated the acts of anal intercourse alleged by [J.E.]. You can't punish the accused because you have sympathy for the child, nor can you acquit the accused because you just feel sorry for him. You have got to deal with the evidence honestly.
Now, a 13-year-old boy is giving evidence of what happened when he was five and a half and just about the time of his sixth birthday. Now, when you are dealing with a child, I don't -- I'm going to just point this out to you. In assessing his evidence, I want you to consider the questions and answers that I dealt with in deciding whether or not he should take the oath and be sworn; take into account he was 13 years of age when he gave evidence; take into account when he was five and almost six and six when the incidents occurred.
I noticed you watching him carefully at all times. He is talking about events which occurred when he was five, and there are frailties or sometimes difficulties with the child's evidence because of his mental immaturity. There are four reasons I consider, and you may consider. You don't have to, because as I say, this is your area, and I am relying on your experience dealing with people, and you are not relying on mine, nor is the accused.
There are four areas of concern: his capacity to observe things at five years old and to tell you about them at 13; his capacity to recollect things when he was five, and his capacity to tell you about them when he is 13 and to recollect them and bring them back; his ability to understand the questions that were put to him and to frame and give intelligent answers; and fourthly, his moral responsibility as a child of 13 talking about events which occurred when he was five. Those are points you may wish to consider when you assess his evidence.
Again, you may wish to consider, as put by Miss Hamilton and the Crown, what is the motive for him blaming [A.W.E.]? I think it's something you have to consider is why he didn't reveal [A.W.E.]'s name initially, and a few days later he did reveal [A.W.E.]'s name. That's in 1985, long after the event. At that time [A.W.E.] was not with [J.E.]. That was the period of separation time when the child was in Armstrong, B.C., living away from [A.W.E.].
Now, the evidence of [J.E.] is specific and very specific about those two incidents. He also is very specific about some other incidents relating to the fire, relating to the camper, relating to the broken leg, relating to the cut on his nose by his mother with a large knife, in relation to kicking the football and hitting somebody in the face with it -- or soccer ball.
Those incidents were also referred to in some areas by other witnesses, and there was a difference, perhaps, in the way each one of them saw the incident, and perhaps, for example, the incident as described by [J.E.] of the broken leg may be considered by you as how he recollected things happening in those times as compared to the incident as explained by the accused or explained by [L.E.] or explained by [W.E.], his children. Now that may assist you in trying to ascertain what weight to be given to [J.E.]'s evidence and how to look at it.
I find no suggestion in this detailed appraisal of the complainant's testimony that the trial judge believed this testimony should be approached with any added caution. The Court of Appeal took a similar view of the charge, as the following passage at pp. 221-22 indicates: "Credibility was clearly a big issue. The charge to the jury was quite favourable to the accused in certain respects. But it said nothing about any dangers in the Crown's case, and said nothing to suggest that the complainant's evidence lacked weight."
With respect, I find that the learned trial judge erred in law by withholding such a caution from the jury. The discretion of a trial judge to comment on evidence in his or her charge to the jury is well established: see Steinberg v. The King, [1931] S.C.R. 421. Where such comment is offered, and so long as the trial judge emphasizes to the jury that they remain at liberty to disagree with his or her view, I believe the ability of the jury to arrive at a just verdict is enhanced.
In cases where, as here, the ultimate verdict will rest to a large extent on the credibility of the complainant, the comments of the trial judge become all the more helpful to a jury. Such cases also, however, call for added prudence on the part of the trial judge to ensure the primacy of the jury as the trier of fact is not compromised. Although the trial judge could not go so far as to assert that he disbelieved the complainant's testimony, or that he believed the testimony of the defence witnesses, the trial judge could at least have suggested to the jury to proceed with caution in assessing the testimony of the complainant. His failure to properly exercise this discretion came to light as a result of his report to the Court of Appeal.
Even though the trial judge's report was invalid for the reasons set out above, I adopt the view of Locke J. (dissenting) in Ungaro, supra, at p. 444, when he stated that "[i]f the report should indicate that the trial judge has proceeded upon a wrong principle, it is manifest that the judgment might properly be set aside, even though reasons given at the time of delivering it indicated no such irregularity." Thus, while the charge to the jury appears sound on its own, when it is read together with the subsequent trial judge's report accepted by the Court of Appeal, it becomes clear that the trial judge misdirected himself in his charge to the jury. This is an error of law which cannot be ignored.
D. Application of the Curative Provision Under Section 686(1)(b)(iii)
As I have found that the trial judge erred in law by not instructing the jury on his comments regarding credibility, I must now assess whether this error can now be cured under s. 686(1)(b)(iii) of the Code.
In R. v. B. (F.F.), [1993] 1 S.C.R. 697, I had opportunity to review the authorities on the proper test to be applied by appellate courts in exercising their curative discretion. Writing for the majority on this question, I expressed the test to be applied under s. 686(1)(b)(iii) in the following terms (at p. 706):
I therefore approach the question of whether this is a case in which the proviso of s. 686(1)(b)(iii) should be applied by asking whether, if the jury had been properly instructed, the verdict of guilty would necessarily have been the same in the sense that any other verdict would have been unreasonable or not supported by the evidence. This exercise must be conducted with respect for the function of the jury, whose role it is to determine what evidence of which witnesses they accept, the weight it should be accorded and, in the final analysis, whether there exists a reasonable doubt about the guilt of the accused.
In approaching the question in this case, it is essential to bear in mind that, in the final analysis, the case turned on questions of credibility. Depending on what evidence was accepted, there certainly could have been ample evidence upon which a jury properly instructed could convict on the charges upon which this jury convicted the accused. However, verdicts of acquittal on all counts on the trial record as it stands would, in my respectful view, not be susceptible to be set aside as being unreasonable.
I would apply the same approach in the present case. What is distinctive about this case, however, is that the error of the trial judge did not deprive the jury of evidence, per se, but rather of comment on the evidence. Nevertheless, had the trial judge not misdirected himself with respect to the ambit of his charge to the jury, given the centrality of credibility to the verdict, it is not possible to say that a properly instructed jury would necessarily have convicted. Therefore, I do not find this case to be an appropriate one in which to invoke s. 686(1)(b)(iii).
E.The Discrepancy between the Law at the Time of Trial and the Law at the Time of the Offence
There is one final issue to resolve. It concerns the discrepancy between the laws in force at the time of trial and the law in force at the time of the alleged offences. The incidents in question took place in 1983. The trial took place in 1990. Initially, Côté J.A. indicated that he preferred not to deal with this question, stating at p. 222: "That issue would involve some extremely intricate legal issues of statutory retroactivity, and of jury charges on the amount of evidence. For reasons which emerge below, there is no need to go into them now."
After finding a new trial to be required based on the unsafeness of the verdict, Côté J.A. raised the issue of the discrepancy between the old law of buggery and the new law of anal intercourse, which replaced the buggery provision in 1988 (S.C. 1987, c. 24, s. 3, enacting s. 154(1), now s. 159(1)). Côté J.A. noted that the accused was therefore charged with an offence, anal intercourse, which did not exist at the time of the alleged incidents. Neither the Crown nor the defence disputed that the old offence of buggery and the new offence of anal intercourse are essentially identical. Côté J.A., in considering this question, stated the following (at p. 224):
Obviously a person cannot be convicted of what was not a crime at the time he acted, and nothing in the Criminal Code or its amendments purports to provide otherwise. Indeed, the federal Interpretation Act , R.S.C. 1985, c. I-21, s. 43 , provides rather the contrary: if an offence is repealed, someone who has committed it may still be prosecuted for the old offence.
For the reasons given, the defect does not go to the heart of the charge. There are no limitation periods for indictable offences. I see no benefit to anyone in doing anything which would in effect send the matter back for a new information, preliminary hearing, and indictment. Though the accused cannot be tried on the indictment as it now stands, I would give the Crown leave, if it wishes, to amend the indictment to allege buggery instead of anal intercourse. The other particulars should not be changed.
The change in the laws of evidence between the time of the alleged incidents and the time of trial, however, apparently continued to trouble the court, as indicated by the following holding (at pp. 224-25):
I doubt that that change of offence is in substance more than a change of name in this case, or that it will make any practical difference to the accused. However, the procedural and evidentiary law can be complex, given the thicket of amendments to the law relating to sexual offences in Canada in the last generation. I may have missed something. If the accused can find any factual, legal or procedural arguments triggered by the old offence or by the change of offence, he should at least have the right to make answer and defence using them. He had no such chance at his first trial. That is an independent ground for quashing the conviction and ordering a new trial.
Was the Court of Appeal correct in ordering a new trial on this basis? Turning first to the discrepancy as to which evidentiary law applies, this matter can be easily resolved. Prior to its repeal in 1988 (S.C. 1987, c. 24, s. 15), s. 586 of the 1970 Criminal Code required corroboration before the unsworn evidence of a child complainant could be adduced. Those same amendments to the Criminal Code removed the requirement at common law that any uncorroborated evidence by the complainant be accompanied by a caution from the trial judge (S.C. 1987, c. 24, s. 11). In the present case, the trial judge accepted the uncorroborated evidence of J.E. based on the law in force at the time of trial, and was, I find, correct in so doing. It is the law of evidence at the time of trial that prevails. Indeed, this Court has held that the enactment of a new law with respect to evidentiary questions may validly have retrospective application: see Wildman v. The Queen, [1984] 2 S.C.R. 311.
With respect to the discrepancy in the naming of the offence in the indictment, this matter may also be easily settled. In R. v. Barbeau, [1992] 2 S.C.R. 845, Cory J., writing for the Court, held that where the only defect in an indictment is the naming of the wrong offence, the error would render the indictment voidable but not void, as the two offences in that case were virtually identical. The same is true in this instance, and the same reasoning applies. I would therefore affirm the Court of Appeal's order granting the Crown leave to amend the indictment accordingly should the Crown proceed with a new trial. However, I can see no "factual, legal or procedural argument triggered by the old offence or by the change of offence" which would affect the outcome of a new trial. Thus, I respectfully disagree with the Court of Appeal that the difference between the laws at the time of trial and the laws at the time of the offence constituted independent grounds for the ordering of a new trial.
V. Disposition
I would dismiss the appeal, and for the reasons outlined above, order a new trial.
//Cory J.//
The judgment of La Forest, L'Heureux-Dubé, Cory and Iacobucci JJ. was delivered by
Cory J. -- I have read with great interest the excellent reasons of the Chief Justice. Unfortunately, I have come to a different conclusion with regard to the use that can be made of the trial judge's report and whether the charge to the jury was in error.
Facts
In addition to the facts set out by the Chief Justice I would observe that it can be readily inferred from the medical evidence that the complainant was indeed sexually assaulted. The real issue in the case was by whom. Indeed this was the position taken by the defence at trial, where it was argued that the assault was more likely to have been committed by the natural father of the complainant than the respondent.
The Trial Judge's Report
It may be convenient to set out here the section of the Criminal Code R.S.C., 1985, c. C-46 , providing for judge's reports. Section 682(1) is as follows:
682. (1) Where, under this Part, an appeal is taken or an application for leave to appeal is made, the judge or provincial court judge who presided at the trial shall, at the request of the court of appeal or a judge thereof, in accordance with rules of court, furnish it or him with a report on the case or on any matter relating to the case that is specified in the request.
It can be seen that a report of a trial judge should only be made at the request of the Court of Appeal. Such a request should in my opinion be rarely made.
As the Chief Justice pointed out, the section originated at a time when there was seldom a transcript made of the trial proceedings. It was thus essential that the Court of Appeal have access to the judge's notes of those proceedings. That situation no longer exists. A complete transcript of all court proceedings is now routinely available to the Courts of Appeal. Further it has been emphasized by this Court that the accused should be present throughout the entire trial. See R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Barrow, [1987] 2 S.C.R. 694; and Vézina v. The Queen, [1986] 1 S.C.R. 2. This in turn means that there will be a transcript of every aspect of the case. It is on the basis of that record that the decision of the Court of Appeal should be made. It is apparent that to a large extent s. 682(1) is a historical anachronism.
As a general rule the trial judge's report introduces an element of unfairness into the appeal procedure. The trial judge is being requested to give his or her subjective view of what transpired. With the very best of intentions the trial judge may subconsciously be influenced to write a report which justifies decisions made and actions taken during the course of the trial. It will be very difficult if not impossible for counsel opposed to the view of events taken by the trial judge to argue against the judge's version. Further the request puts a trial judge in an embarrassing if not invidious position. Is the trial judge to be encouraged to report that in his view the decision of the jury was unsafe? There is an obvious danger in taking that position. First the immediate response is why then bother with a jury if the judge can override its verdict by means of a report? Secondly, what if the situation presented in this case were reversed and the jury had acquitted despite the trial judge's strongly held views that there should have been a conviction? In those circumstances should the report of the trial judge requested by the Court of Appeal have an influence upon the decision?
To request the report, as a general rule, is to encourage a situation fraught with the possibilities of unfairness. It is only in those rare situations where something occurred which is not reflected in the record and upon which opposing counsel cannot agree that a report from a trial judge might be requested. For example, a desire for comments with regard to the demeanour of a witness should not justify a request for a report. The assessment of the demeanour of a witness should fall within the exclusive domain of the jurors as the triers of the facts. Indeed jurors are routinely instructed at the opening of a criminal trial that they should closely observe the demeanour of the witnesses during the course of the trial. To ask for a trial judge's comment to the Court of Appeal on this issue would I think be superfluous and improper.
It follows that I do not think that there should be a standing request from Courts of Appeal to trial judges to routinely make a report. As the Chief Justice has pointed out, if the Court of Appeal issues a general invitation to trial judges to submit reports, that would be tantamount to restoring the predecessor of s. 682(1). Rather, as I have said, the request should be made only in those rare circumstances where something has occurred which is not reflected on the record upon which opposing counsel cannot agree. In those rare cases, trial counsel ought probably to be afforded an opportunity to appear before the trial judge in order to make submissions with regard to the requested report. Further, when the report is made, copies should be provided to counsel appearing on the appeal so that they may make representations with respect to it.
In this case the unsolicited report of the trial judge should not have been considered by the Court of Appeal. It pertained exclusively to evidence already in the record of the trial which was before the Court of Appeal. The report expressed the opinion of the trial judge that the verdict of the jury was unsafe. Yet it is the jury's verdict which must prevail over the trial judge's opinion. Unless there was no evidence to support its verdict or errors were made in the course of the charge which would require a new trial, the verdict of a jury must not be set aside. Juries are a safeguard of democracy and society quite properly respects and trusts their verdicts. See R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Sherratt, [1991] 1 S.C.R. 509; and Mezzo v. The Queen, [1986] 1 S.C.R. 802. If they are to remain the bulwark of freedom their decisions should not be lightly dismissed.
It is now necessary to consider whether the verdict of the jury in this case was unsafe.
Was the Verdict of the Jury Unsafe?
The Chief Justice properly observed that the Court of Appeal was empowered under s. 686(1) (a)(i) of the Criminal Code to find that the verdict was unreasonable or unsupported by the evidence. He pointed out that in making such a determination the Court of Appeal was obliged to "re-examine and to some extent reweigh and consider the effect of the evidence". See R. v. Yebes, [1987] 2 S.C.R. 168, at p. 186. He further observed that although the principle expressed in Yebes applies to findings of credibility, this Court has held that deference should be shown to those findings which are made at trial. See R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 131.
The Chief Justice continued by observing that it was highly unlikely in his view that the Court of Appeal would have concluded that the guilty verdict was unreasonable under s. 686(1)(a) were it not for the comments contained in the report of the trial judge in light of the evidence presented at trial. I agree with all those comments. They are particularly true in light of the opinion expressed by this Court that the testimony of children such as the complainant should not be evaluated on the same standards as that used in assessing evidence given by adults. Rather a flexible common sense approach to the evidence of children should be employed. See R. v. W. (R.), supra, and R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55.
The trial judge determined that the complainant, J.E., was of sufficient maturity to be sworn. He testified and was cross-examined at length. The jury had every opportunity to hear his testimony and to observe the manner in which he gave his evidence. As the Chief Justice has noted there were no significant inconsistencies in his testimony. The jury could have based its verdict upon the evidence of the complainant alone. There was as well the medical evidence which revealed findings consistent with the sexual abuse described by the complainant. There was then clear evidence upon which the jury could base its finding of guilt. Thus it cannot be said that there was no evidence upon which the jury could base its conviction and that as a result it was unsafe to accept the verdict of guilty.
It remains then to be seen if the judge's charge was in error.
The Charge to the Jury
Except in those rare cases where it is appropriate to request it, the charge to the jury should be reviewed without any consideration of the report of the trial judge. If the jury system is to be maintained, then despite the unpopularity of a verdict it must be accepted unless, as I have said, there was no evidence upon which it could be based or there is a reversible error in the charge. It should not be forgotten that trial by jury is one of the important concepts of our democratic society. It is the ability to have recourse to a jury trial that is the individual's safeguard against tyranny. The danger of relying upon a trial judge's report to set aside a jury verdict becomes apparent if the Crown were to seek to set aside the unpopular verdict of acquittal on the basis of a trial judge's report that the verdict was unsafe. Any decision as to the verdict in this case should be based upon the transcript and not the report of the trial judge.
It was incumbent upon the trial judge to bring to the jury's attention the problems that may arise from the testimony of youthful witnesses. Let us review what the trial judge said to the jury with regard to the evidence of the complainant in this case.
Now, [J.E.]'s evidence is that of a 13-year-old boy. Now, you are not inexperienced with life. You have dealt with children. You have dealt with adults. Don't leave your common sense at home when you are assessing this child's evidence. You are called because of your collective wisdom and experience in dealing with people and assessing facts. Use that in deciding who you are going to believe in this case, what you are going to do with the evidence, and how you are going to weigh it.
Now, I questioned [J.E.], as you saw, before he took the oath. I asked him some questions about whether or not he understood the nature of an oath and whether or not he was able to communicate answers to questions on a fairly intelligent basis. You saw him answer the questions. You saw him deal with them. You also saw him answer and heard him answer questions from both counsel for quite a period of time.
Now, he is a 13-year-old boy, and he has had not a nice life. You can't punish the accused because he hasn't had a good life, unless you are satisfied it was the accused who perpetrated the acts of anal intercourse alleged by [J.E.]. You can't punish the accused because you have sympathy for the child, nor can you acquit the accused because you just feel sorry for him. You have got to deal with the evidence honestly.
Now, a 13-year-old boy is giving evidence of what happened when he was five and a half and just about the time of his sixth birthday. Now, when you are dealing with a child, I don't -- I'm going to just point this out to you. In assessing his evidence, I want you to consider the questions and answers that I dealt with in deciding whether or not he should take the oath and be sworn; take into account he was 13 years of age when he gave evidence; take into account when he was five and almost six and six when the incidents occurred.
I noticed you watching him carefully at all times. He is talking about events which occurred when he was five, and there are frailties or sometimes difficulties with the child's evidence because of his mental immaturity. There are four reasons I consider, and you may consider. You don't have to, because as I say, this is in your area, and I am relying on your experience dealing with people, and you are not relying on mine, nor is the accused.
There are four areas of concern: his capacity to observe things at five years old and to tell you about them at 13; his capacity to recollect things when he was five, and his capacity to tell you about them when he is 13 and to recollect them and bring them back; his ability to understand the questions that were put to him and to frame and give intelligent answers; and fourthly, his moral responsibility as a child of 13 talking about events which occurred when he was five. Those are points you may wish to consider when you assess his evidence.
Again, you may wish to consider, as put by Miss Hamilton and the Crown, what is the motive for him blaming [A.W.E.]? I think it's something you have to consider is why he didn't reveal [A.W.E.]'s name initially, and a few days later he did reveal [A.W.E.]'s name. That's in 1985, long after the event. At that time [A.W.E.] was not with [J.E.]. That was the period of separation time when the child was in Armstrong, B.C., living away from [A.W.E.].
Now, the evidence of [J.E.] is specific and very specific about these two incidents. He also is very specific about some other incidents relating to the fire, relating to the camper, relating to the broken leg, relating to the cut on his nose by his mother with a large knife, in relation to kicking the football and hitting somebody in the face with it -- or soccer ball.
Those incidents were also referred to in some areas by other witnesses, and there was a difference, perhaps, in the way each one of them saw the incident, and perhaps, for example, the incident as described by [J.E.] of the broken leg may be considered by you as how he recollected things happening in those times as compared to the incident as explained by the accused or explained by [L.E.] or explained by [W.E.], his children. Now, that may assist you in trying to ascertain what weight to be given to [J.E.]'s evidence and how to look at it. [Emphasis added.]
As well he stated:
Now, the position of the Crown is that the evidence of [J.E.] is clear as to the nature of the act and the person who did it, and [J.E.] stood up to answering questions, giving his evidence and being subjected to cross-examination. I don't know whether grilling or gruelling is the correct word, but it certainly was -- he stood up for a long time. In fact, at the end he sat down, you will remember, in front of you. You watched him very carefully. You will have to consider his evidence, and of course, the others.
The Crown says it's clear, no doubt in [J.E.]'s mind who. That person had the opportunity to do it, and although he didn't name him in 1985, when initially dealing with the topic, he named [W.E.] and [L.E.], [D.W.]; but when it came down to the crunch three days later, he also named [A.W.E.]. Now, he was asked specifically if [A.W.E.] did it initially, and he said no. Three days later he says, Yes, [A.W.E.] did do it; now, two or three days later.
Now, the Crown's position is you should accept that evidence. You should disregard the other evidence. They have an interest in getting evidence that way. They have a bias. Accept the evidence of [J.E.]. It should be sufficient to satisfy you beyond a reasonable doubt.
The defence takes the position that you should not accept the evidence of [J.E.]. There are other people with equal opportunity; in particular, the defence referred to [D.S.], the natural father, probably, of the child [J.E.]. Her position is that you should accept the evidence of the accused, who denied it, and you should accept the evidence of the witnesses called on his behalf that his character is such that he is not the kind of person who would commit that crime.
These directions appear to adequately bring to the attention of the jury the problems that they should consider in assessing the evidence of the complainant. Taken in the context of the entire charge, they provide proper instructions to the jury. The charge when reviewed as a whole, is not only fair but favourable to the respondent. It is trite that charges should not be viewed microscopically or infinitely parsed to find error. A review of the charge in this case does not reveal any reversible error. Indeed the Chief Justice notes that the charge to the jury appears to be sound. In his view it is only when it is read together with the trial judge's letter or report that it becomes apparent that it can be said that there is misdirection.
I must with respect disagree with that position. In my view there should not have been any recourse to the report of the trial judge. To do so means that a new trial would be directed based upon the very report that should not have been considered. There is no suggestion that any relevant evidence was withheld from the jury in this case or that there was an error in law made in the course of the charge. Nor is there any suggestion that the trial judge failed to review all the relevant evidence with the jury or put forward the position of the Crown and defence. The proposed new trial results solely from the fact that the trial judge failed to comment on the evidence. In this case, there was no duty or need for the trial judge to make comments upon the evidence beyond those which were properly made in his charge, which all agree was fair.
It is true that in a criminal trial the fairness of the process must be primarily assessed from the point of view of the accused. Yet it must as well be looked at from the point of view of fairness in the eyes of the community and the complainant. It is apparent, from any viewpoint, that the respondent received a fair trial. All that is really complained of is that the verdict of the jury was not a satisfactory one in the opinion of the trial judge. Unless we are to accept the contention that a jury's decision based upon relevant and admissible evidence following a fair and faultless charge can be set aside on the grounds that it is contrary to the decision which the trial judge might have reached, there should not be any interference with that verdict.
Conclusion
In summary then, a report from a trial judge should not be routinely requested by a Court of Appeal. It should only be sought where something cannot be ascertained from the transcript as agreed upon by counsel. The report of the trial judge should not have been considered by the Court of Appeal in this case. The charge to the jury was fair and did not contain any errors that would necessitate a new trial. In the result, I can come to no other conclusion than that the appeal must be allowed and the conviction restored.
//Sopinka J.//
The following are the reasons delivered by
Sopinka J. (dissenting) -- I have read the reasons of the Chief Justice and Justice Cory herein. Both have concluded that the report of the trial judge herein was not authorized by s. 682(1) of the Criminal Code , R.S.C., 1985, c. C-46 . I agree with Cory J. as to the circumstances in which such a report should be made. I agree with the Chief Justice, however, that the report having been made and received, it discloses an error of law which might have affected the verdict. This cannot be ignored. Cory J. reviews extensive passages in the charge to the jury which adequately sets out "the problems that they should consider in assessing the evidence of the complainant" (p. 000). These comments, when considered in the absence of the trial judge's views as to the credibility of the complainant, are fair. Nonetheless, but for an error of law, the trial judge would have added a comment with respect to the reliability of the evidence of the complainant. For the reasons stated by the Chief Justice, the trial judge was entitled to make such a comment which would have enured to the benefit of the accused. I agree with the Chief Justice that, absent the error in law, the verdict would not necessarily have been the same. I would, therefore, dispose of the appeal as proposed by the Chief Justice.
Appeal allowed, Lamer C.J. and Sopinka and Major JJ. dissenting.
Solicitor for the appellant: Ken Tjosvold, Edmonton.
Solicitor for the respondent: A. Clayton Rice, Edmonton.
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