R. v. Rhee, 2001 SCC 71, [2001] 3 SCR 364

R. v. Rhee, [2001] 3 S.C.R. 364, 2001 SCC 71

DaiGeun Rhee                                                                                                  Appellant

v.

Her Majesty The Queen                                                                               Respondent

Indexed as:  R. v. Rhee

Neutral citation:  2001 SCC 71.

File No.:  27863.

2001:  April 27; 2001: October 19.

Present:  Iacobucci, Major, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for british columbia

Criminal law – Charge to jury – Reasonable doubt – Accused convicted of attempted murder and assault causing bodily harm – Whether pre-Lifchus charge on reasonable doubt in substantial compliance with principles set out in Lifchus.

The accused was charged with attempted murder and assault causing bodily harm.  The Crown’s case was based on the complainants’ testimony as well as on  circumstantial evidence.  In defence, the accused testified as to his version of events.  The trial judge charged the jury on the issues of reasonable doubt, credibility and circumstantial evidence.  When describing reasonable doubt, the trial judge, who did not have the benefit of this Court’s decision in Lifchus, stated: “The term ‘reasonable doubt’ is to be given its natural meaning.  It is not a legal term having some special connotation.”  He did not instruct the jury that more than mere probable guilt was required to satisfy the Crown’s burden of proof.  The jury found the accused guilty of both charges.  The accused appealed his conviction arguing, in particular, that the trial judge misdirected the jury on the proper definition of reasonable doubt.   The majority of the Court of Appeal dismissed the appeal, holding that the errors alleged could not have misled the jury.

Held (LeBel J. dissenting):  The appeal should be dismissed.

Per Iacobucci, Major, Binnie and Arbour JJ.:  Appellate review of a charge to the jury is not a mechanical task, but rather an assessment of whether the deficiencies in the charge, as compared to the Lifchus standard, cause serious concern about the jury’s verdict.  The key question is whether the charge, in the context of the entire trial, substantially complies with the principles expressed in Lifchus so that as a whole it does not give rise to the reasonable likelihood that the jury misunderstood the correct standard of proof. When reviewing a pre-Lifchus charge, there is no particular mistake or omission that will automatically constitute a reversible error in and of itself, nor is there an additional instruction that will immediately cure a particular shortcoming.  Where the majority of a charge complies with Lifchus principles, but the trial judge has omitted to expressly indicate that more than probable guilt is required, or has made that omission in conjunction with another error, such as defining reasonable doubt as having a plain and ordinary meaning, these shortcomings can be countered by other parts of the jury instructions that serve to make the proper definition of reasonable doubt more clear.   Here, the charge as a whole was in substantial compliance with Lifchus principles. Although, viewed in light of Lifchus, certain aspects of the charge were deficient, other parts of the jury instruction dealing with credibility and circumstantial evidence served to clarify the proper definition of reasonable doubt  so that there can be no reasonable concern that the jury may have proceeded to convict by applying the wrong standard of proof.

Per LeBel J. (dissenting):  The primary concept arising out of Lifchus is that the trial judge must explain to the jury that proof beyond a reasonable doubt is distinct from, and a higher standard than, proof on a balance of probabilities.  Although no particular words need to be used, this essential concept must be conveyed as part of the required explanation of reasonable doubt.  The jury must be made aware that a probability standard is not sufficient to determine criminal guilt. In this case, the charge was not in substantial compliance with the principles in Lifchus and was therefore inadequate.   First, the jury was instructed that the term “reasonable doubt” was to be given its natural meaning, and was not a legal term having some special connotation.  This explanation invited the jurors to rely on their own personal views or experience about what reasonable doubt may mean, and was likely an invitation to apply a probability standard similar to that which they would apply in making their everyday decisions.   Second, although the instruction warned the jury away from a standard of proof that is too high, the trial judge made no mention of the inappropriately low standard of probability.  As a result, there was a reasonable likelihood that the jury misunderstood this key aspect of its deliberative task.

While the part of the charge dealing with the contradictory evidence seems adequate, this was not sufficient to cure the inadequacy of the general explanation of reasonable doubt.  No matter how flawless the instruction may have been with regard to the contradictory evidence, once the jury decided which version of events it was inclined to believe, it still could not have made a fair assessment of guilt if it did not know the proper standard of proof to apply to the evidence in support of that version.

Finally, the trial was essentially a battle of credibility between the accused and the complainants.  The assessment of credibility is an everyday exercise likely to be carried out according to a standard based on probability.  The relatively simple nature of the trial may therefore have reinforced the jury’s impression that no special legal concepts were at play, and that its ordinary approach to probability-based problem solving was appropriate.

Cases Cited

By Arbour J.

Applied:  R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54; R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56; referred to:  R. v. K. (K.) (2000), 144 C.C.C. (3d) 35, 2000 BCCA 161; R. v. Finley (2000), 134 B.C.A.C. 142, 2000 BCCA 160; R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Brydon (1995), 95 C.C.C. (3d) 509; R. v. Lord, [1995] 1 S.C.R. 747, aff’g (1993), 36 B.C.A.C. 223.

By LeBel J. (dissenting)

R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56; R. v. Bisson, [1998] 1 S.C.R. 306; R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54; R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. S. (W.D.), [1994] 3 S.C.R. 521; R. v. K. (K.) (2000), 144 C.C.C. (3d) 35, 2000 BCCA 161.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C-46, s. 691(1) (a).

APPEAL from a judgment of the British Columbia Court of Appeal (2000), 134 B.C.A.C. 135, 219 W.A.C. 135, [2000] B.C.J. No. 485 (QL), 2000 BCCA 162, dismissing the accused’s appeal of his conviction for attempted murder and assault causing bodily harm by the British Columbia Supreme Court.  Appeal dismissed, LeBel J. dissenting.

Matthew A. Nathanson, for the appellant.

Alexander Budlovsky and Ursula Botz, for the respondent.

The judgment of Iacobucci, Major, Binnie and Arbour JJ. was delivered by

Arbour J. ­

I.  Introduction

1                                   The sole issue in this appeal is whether the British Columbia Court of Appeal erred in concluding that instructions to the jury on reasonable doubt did not mislead the jury in its task of understanding and applying the proper criminal standard of proof as set out in R. v. Lifchus, [1997] 3 S.C.R. 320.  In this case the trial judge did not have the benefit of this Court’s reasons in Lifchus and the Court of Appeal did not have the benefit of R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54; and R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56.

2                                   Viewed in light of Lifchus, certain aspects of the charge in question were deficient.  However, in my opinion, other parts of the jury instruction, namely, those dealing with credibility and circumstantial evidence, served to clarify the proper definition of reasonable doubt in the mind of the jury and thus the charge as a whole must be said to be in “substantial compliance” with Lifchus principles.  Accordingly, I find no reasonable basis to conclude that the jury may have misapprehended the proper standard of proof to apply, and the appeal should be dismissed.  

II.  Facts

3                                   The appellant was convicted in February of 1997 by a jury, on charges of the attempted murder of his wife and of assault causing bodily harm to his daughter.  The incident giving rise to those charges occurred in August of 1996, where the appellant was alleged to have attempted to strangle his wife and assault his daughter in the midst of a struggle at the wife’s place of residence. 

4                                   The Crown claimed that the accused attacked his wife with the intent to strangle her using a length of rope.  This attempt was thwarted when the daughter unexpectedly intervened and a loud struggle, during which the daughter was assaulted by the appellant, forced the appellant to flee the scene.  The appellant claims to have been struggling with his wife in an effort to prevent her from strangling herself with a length of rope when his daughter entered the room.  The daughter, under the mistaken impression he was assaulting her mother, attacked him and he attempted to subdue her.  Eventually, the struggle became very loud and out of control, and the appellant fled the scene.  The appellant testified as to his version of events, and the appellant’s wife and daughter testified in support of the Crown’s version.  The Crown’s case also rested on some circumstantial evidence.

5                                   The appellant appealed his conviction to the British Columbia Court of Appeal on several grounds, including that the trial judge erred in law by misdirecting the jury on the proper definition of reasonable doubt.  The Court of Appeal convened a special five-judge panel, and heard the case with two others, R. v. K. (K.) (2000), 144 C.C.C. (3d) 35, 2000 BCCA 161, and R. v. Finley (2000), 134 B.C.A.C. 142, 2000 BCCA 160.   The majority of the Court of Appeal dismissed the appeal on the basis that the errors alleged, unlike those made by the trial judge in Lifchus, supra, could not have misled the jury.  However, two judges dissented and found that the trial judge erred in instructing the jury to give the term “reasonable doubt” its plain and natural meaning, and that this error was compounded by the trial judge’s failure to instruct the jury that more than probable guilt was required for a conviction.  The appeal comes before this Court as of right pursuant to s. 691(1) (a) of the Criminal Code, R.S.C. 1985, c. C-46 .

III.  The Courts Below

A.  British Columbia Supreme Court

6                                   The trial judge provided the jury with the following explanation of the meaning of the words “beyond a reasonable doubt”:

The term “reasonable doubt” is to be given its natural meaning.  It is not a legal term having some special connotation.  A reasonable doubt is an honest and fair doubt based upon reason and common sense, it is a real doubt, not an imaginary or frivolous doubt, it is a doubt based on reason, therefore, if you were to ask yourself why you doubt you could assign a logical reason for your doubt.  A logical reason in this context means a reason connected to the evidence itself, including any conflict you may find exists after considering the evidence as a whole or through an absence of evidence which in the circumstances in this case you believe is essential to a conviction.

You must not base your doubt on the proposition that nothing is certain, therefore, you have doubt or on the proposition that anything is possible, therefore, you have a doubt.  You are not entitled to set up a standard of absolute certainty and say that the evidence does not measure up to that standard.  In many things in life it is not possible to prove absolute certainty.

If after careful consideration of all of the evidence, the addresses of counsel and my instructions on the law, there remains a reasonable doubt in your mind as to the guilt of the accused, the Crown has failed to meet the standard of proof which the law requires, the presumption of innocence would therefore prevail and you must acquit.  If, on the other hand, you are satisfied beyond a reasonable doubt as to the guilt of the accused, the presumption of innocence has been displaced, you must convict.  When in the course of this charge I tell you what the Crown must prove I will always mean proof beyond a reasonable doubt.

7                                   With regard to the circumstantial evidence presented by the Crown to demonstrate the accused’s criminal intent for attempted murder, the trial judge said:

Before you can find that the accused had the necessary criminal intent, that he specifically intended to cause death, you must be satisfied beyond a reasonable doubt that this intent is the only reasonable inference to be drawn from what you accept as the proven facts.  The question on this element is what did the accuse[d] in fact intend to be the result of what he did.  Is there any reasonable doubt that he intended to cause death.

8                                   The trial judge went on to instruct the jury about circumstantial evidence generally as follows:

When considering this and all other circumstantial evidence you must be satisfied beyond a reasonable doubt that where it is relied upon to support a guilty verdict the guilt of the accused is the only reasonable inference to be drawn from the facts as you have found them to be.

9                                   As this was a case where the accused himself had testified, the trial judge also charged the jury with instructions similar to those endorsed by this Court in R. v. W. (D.), [1991] 1 S.C.R. 742, as follows:

If you believe the accused you must find him not guilty.  If you do not know who to believe as between the accused and his wife and daughter you must also find him not guilty.  If you do not believe him but his testimony nonetheless causes you to have reasonable doubt you must find him not guilty.  Even if you do not believe the accused and his testimony does not cause you to have reasonable doubt then you must put his testimony to one side and consider whether on the balance of all the remaining evidence the Crown has proven the offence charged beyond a reasonable doubt.                                                             

10                               At the end of the charge, the trial judge asked counsel for comments and there were no questions, concerns or objections noted.  The jury subsequently convicted the appellant of attempted murder (against his wife) and assault causing bodily harm (against his daughter).

B.  British Columbia Court of Appeal (2000), 134 B.C.A.C. 135, 2000 BCCA 162

1.  Esson J.A. (Braidwood and Hall JJ.A. concurring)

11                               On appeal, the appellant alleged five errors with respect to the trial judge’s charge on reasonable doubt, and further alleged that the trial judge misdirected the jury on the application of reasonable doubt to the issue of credibility.  One ground for appeal was abandoned at the hearing, and all but two of the other errors alleged were unanimously rejected by the court.

12                               Of the two key shortcomings in the trial judge’s charge to the jury on reasonable doubt, the first error was characterized by Esson J.A. as an error of commission, in that the trial judge instructed the jury that reasonable doubt is not a legal term with any special legal connotation.  Instead, the trial judge charged that:

The term “reasonable doubt” is to be given its natural meaning.  It is not a legal term having some special connotation.

Esson J.A. acknowledged that failure to characterize reasonable doubt as a legal term having a special meaning was held by this Court in Lifchus to be an error in law.  At para. 6, the majority of the Court of Appeal quoted Cory J. in Lifchus at para. 22, as follows:

The phrase “beyond a reasonable doubt”, is composed of words which are commonly used in everyday speech.  Yet, these words have a specific meaning in the legal context.  This special meaning of the words “reasonable doubt” may not correspond precisely to the meaning ordinarily attributed to them.  In criminal proceedings, where the liberty of the subject is at stake, it is of fundamental importance that jurors fully understand the nature of the burden of proof that the law requires them to apply.

13                               However, the majority concluded that the error in this case, unlike the situation in Lifchus, supra, could not have misled the jury, given the specific context of the charge itself, since the trial judge went on to define reasonable doubt more specifically.  Esson J.A. commented that “it must be seen as being at worst a harmless error if, before Lifchus, it could be considered an error at all” (para. 7).  Similarly, Esson J.A. found that the use of qualifiers such as “honest”, “fair” and “real” with reasonable doubt did not, in the circumstances of this case, constitute language that would give rise to any likelihood the jury might misapprehend the standard of proof.

14                               The second key shortcoming alleged in the charge was an error of omission, namely, that the judge failed to instruct the jury that more than mere probable guilt was required to satisfy the Crown’s burden of proof.   Arguments that this omission should constitute a reversible error were rejected by Esson J.A. for reasons discussed in K. (K.), one of the two cases heard by the British Columbia Court of Appeal simultaneously with this one.  In K. (K.), Esson J.A. concluded that the alleged errors did not contravene authority that existed before Lifchus, and, since Lifchus was meant to apply prospectively, there was no reason to disregard the principles that existed at the time the charge was delivered (i.e., R. v. Brydon (1995), 95 C.C.C. (3d) 509 (B.C.C.A.); R. v. Lord, [1995] 1 S.C.R. 747, aff’g (1993), 36 B.C.A.C. 223).  In reference to the omission of various “reasonable doubt” instructions recommended in Lifchus, Esson J.A. noted in K. (K.), at para. 35:

At the time the charge was given there was no authority which required the trial judge to include the words “absence of evidence”, or to instruct the jury that proof beyond a reasonable doubt is something more than proof on the balance of probabilities, or to instruct the jury that it must be “sure”.  Those matters are included in the suggested charge in Lifchus to which trial judges no doubt are now paying respectful attention.   

15                               In accordance with Lifchus and W. (D.), Esson J.A. applied the proper standard to the alleged errors in the trial judge’s charge, aptly summarized in K. (K.), at para. 39:

. . . an error will not be grounds for reversal “if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply”.  But if the charge as a whole “gives rise to the reasonable likelihood that the jury misapprehended the standard of proof”, the verdict will generally have to be set aside. [First quote from W. (D.), at p. 758, as cited in Lifchus, at para. 41; second quote from Lifchus, at para. 41.] 

16                               Noting that no objection was raised at trial with regard to any aspect of the charge delivered by the trial judge, Esson J.A. rejected all grounds of appeal based on alleged deficiencies in the charge. 

2.  Newbury J.A. (Rowles J.A. concurring)

17                               Like the majority, Newbury J.A., writing in dissent, asserted that the critical question before the court was not whether the trial judge correctly followed the charge as set out in Lifchus, but rather whether the basic question asked by Cory J. in that case, namely, whether the charge “gives rise to the reasonable likelihood that the jury misapprehended the standard of proof”, could be answered in the affirmative.  Newbury J.A. noted that this Court felt compelled to order a retrial in Lifchus based, in part, on an error similar to that alleged in the current case.   In Lifchus, the trial judge instructed the jury that the words “reasonable doubt” were to be interpreted in their “ordinary, natural every day sense”.  If this error could deprive the accused of a fair trial in Lifchus, Newbury J.A. concluded the same error would likely have the same effect in the case at bar.

18                               According to Newbury J.A., this error was compounded by the trial judge’s failure to instruct the jury that more than probable guilt is required for a conviction.  While she perceived equating reasonable doubt with its plain and ordinary meaning a more serious error, Newbury J.A. concluded that the errors together suggest that the jury may not have fully understood the meaning of reasonable doubt.  Quoting from Lifchus in K. (K.), to which Newbury J.A. referred in disposing of the current case, she highlighted at para. 48 that the jury “must be aware that the standard of proof is higher than the standard applied in civil actions of proof” (Lifchus, at para. 14) and, “[t]hey should be told that proof establishing a probability of guilt is not sufficient to establish guilt beyond a reasonable doubt” (Lifchus, at para. 32 (emphasis added by Cory J.)).

IV.  Issue

19                               The question before us is whether the charge to the jury substantially complies with the principles enunciated in Lifchus.  More specifically, on the basis of the dissent from the British Columbia Court of Appeal, does an instruction to the jury that reasonable doubt is not a legal term having some special connotation, as compounded by the failure to instruct the jury that more than probable guilt is required for a conviction, amount to a reversible error in the circumstances of this case?

V.  Analysis

20                               The proper approach in explaining reasonable doubt to a jury was settled in Lifchus, where Cory J. summarized at paras. 36-37 that, while no specific set of words had to be adhered to, in substance the judge should convey to the jury the following:

·      the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

·      the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;

·      a reasonable doubt is not a doubt based upon sympathy or prejudice;

·      rather, it is based upon reason and common sense;

·      it is logically connected to the evidence or absence of evidence;

·      it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

·      more is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guilty must acquit.

On the other hand, certain references to the required standard of proof should be avoided.  For example:

·      describing the term “reasonable doubt” as an ordinary expression which has no special meaning in the criminal law context;

·      inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;

·      equating proof “beyond a reasonable doubt” to proof “to a moral certainty”;

·      qualifying the word “doubt” with adjectives other than “reasonable”, such as “serious”, “substantial” or “haunting”, which may mislead the jury; and

·      instructing jurors that they may convict if they are “sure” that the accused is guilty, before providing them with a proper definition as to the meaning of the words “beyond a reasonable doubt”.    [Emphasis in original.]

21                               The applicability of these guidelines to jury instructions delivered before Lifchus was addressed in Russell, Avetysan, Starr and Beauchamp, all supra.  The majority of this Court in Starr held that “[a] court reviewing a pre-Lifchus jury charge must examine it to make sure that it was in substantial compliance with the principles set out in that case” (para. 237).  Appellate review of a charge to the jury is not a mechanical task, but rather an assessment of whether the deficiencies in the charge, as compared to the Lifchus standard, cause serious concern about the jury’s verdict.  However, the failure of such charges to reflect Lifchus principles “cannot be taken to raise by that alone the spectre of an unfair trial or miscarriage of justice” (Russell, supra, at para. 24).  Rather, the key question to ask is whether the charge in question substantially complies with the principles expressed in Lifchus, so that, as a whole, it does not give rise to the reasonable likelihood that the jury misunderstood the correct standard of proof.  Major J. succinctly stated the position in Avetysan, supra, as follows, at para. 12:

It is worth stressing that the principles in Lifchus are to be applied in a manner that will encourage improvements in the wording of jury charges, but do not vitiate past charges where the language used, although no longer preferred, meets the substantially correct test.  A jury charge given before or after the Lifchus decision should not be faulted merely for imprecise language.  Rather, as was stated in Starr, supra, it should be reviewed to determine whether it substantially complies with the Lifchus principles.  As applied in Russell, supra, and Beauchamp, supra, the basic question remains:  Does the charge, read as a whole, give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof?  If not, the charge is adequate.

22      I stress again that the evaluation by the Court of Appeal of the likely consequences of errors in a jury charge on the definition of reasonable doubt is a case-specific exercise.  The shortcomings of the charge must be assessed in light of the charge as a whole and in the context of the entire trial.

23                               In four appeals similar to the present one, where a pre-Lifchus charge was challenged as giving rise to the reasonable likelihood that the jury would misapprehend the correct standard of proof, this Court ordered new trials in two of those cases, Starr and Avetysan. 

24                               In Starr, the trial judge expressly instructed the jury that the words “reasonable doubt” have no “special connotation” and “no magic meaning that is peculiar to the law”.  Further, the trial judge told the jury that it could convict on a basis of something less than absolute certainty, but did not go on to indicate exactly how much less would constitute the proper minimum standard (i.e., that the Crown was required to do more than prove guilt beyond a balance of probabilities).  The majority commented on the cumulative effect of these two errors as follow, at para. 239:

By asserting that absolute certainty was not required, and then linking the standard of proof to the “ordinary everyday” meaning of the words “reasonable doubt”, the trial judge could easily have been understood by the jury as asserting a probability standard as the applicable standard of proof.

The majority concluded that, since reasonable doubt was never defined, and since nearly all of the instructions given served to actually weaken the content of the reasonable doubt standard, there was a reasonable likelihood that the jury applied the wrong standard, which in turn raised a realistic possibility that the accused’s convictions constituted a miscarriage of justice.  These errors were made in the context of a trial in which the majority of this Court held that incriminating inadmissible evidence had been introduced at trial.  

25                               In Avetysan, the jury was not told that “proof beyond a reasonable doubt” was a special legal concept with a specific meaning in the context of criminal law, and it was not told to acquit if it concluded the accused men were “probably guilty”.  Moreover, the jury was not instructed that the proper standard of proof was more than a balance of probabilities but less than absolute certainty.  These errors were compounded by the fact that the jury was improperly instructed in how to resolve contradictory versions of the events as required in W. (D.), supra.

26                               In Russell, where this Court concluded a pre-Lifchus reasonable doubt charge was in substantial compliance with Lifchus principles, Iacobucci J. indicated that the additional issues existing in Starr and Avetysan distinguished these cases.  As he stated at para. 25:

In Starr, the major issue before the Court was that, in the view of the majority, the trial judge had improperly allowed inadmissible evidence.  In Avetysan, the trial judge failed to warn the jury that even if it disbelieved the accused, it could still entertain a reasonable doubt.  Here . . .  I am not persuaded that there is any reason to interfere with the majority’s [Alberta Court of Appeal] disposition of the appeal, particularly when it thoroughly addressed the elements of the Lifchus principles.  The fact that the Court of Appeal unanimously dismissed all other grounds of appeal, and none of these other issues is before us, distinguishes this case from Starr and Avetysan.

Thus, while the instructions in Starr and Avetysan were clearly not in full compliance with the principles articulated in Lifchus, there were other  issues in each case that served to aggravate, rather than alleviate, the concern that the jury may have misunderstood its task and reached a wrong verdict.

27                               As in Russell, the Court of Appeal in the current case unanimously rejected all grounds for appeal except for the issues surrounding instructions on reasonable doubt.  Thus, based on the comments of Iacobucci J. above, Starr and Avetysan can be of only limited assistance in determining the proper threshold for “substantial compliance” where an errant reasonable doubt charge is the sole issue before the court.

28                               Furthermore, in both these cases, the charge to the jury as a whole, in context, served to actually weaken further the content of the reasonable doubt standard.  This contrasts with Russell and Beauchamp, where, despite some shortcomings in the reasonable doubt instructions to the jury, there were other instructions and explanations within the charge that served to reinforce the proper standard of proof for the jury, thus bolstering the proposition that the instructions, as a whole, were in “substantial compliance” with Lifchus. 

29                               In Russell, the trial judge provided the jury with an explanation of the words “beyond a reasonable doubt” that included a number of divergences from the Lifchus standard, including that the words are to be used “in their ordinary sense and not as a legal term having some special meaning”.  The trial judge also failed to expressly indicate that mere probable guilt was insufficient to support a criminal conviction.

30                               In concluding that the charge was sufficient, Iacobucci J., speaking for the Court in Russell, noted that the Alberta Court of Appeal had “thoroughly addressed the elements of the Lifchus principles”, and he was persuaded that there was no reason to interfere with their decision that the charge in question was consistent with Lifchus guidelines.  More specifically, in relation to the trial judge’s characterization of “proof beyond a reasonable doubt” in the “ordinary” or “everyday life” sense, the Court of Appeal found that additional instructions given in other parts of the charge, more consistent with Lifchus principles, would suffice to give appropriate guidance to the jury.

31                               Again in Beauchamp, supra, Iacobucci J. found no reason to interfere with the majority judgment from the Quebec Court of Appeal.   While it had been recognized that some of the expressions used by the trial judge in the course of delivering a charge on reasonable doubt should have been avoided (most notably, use of the term “moral certainty” in connection with “reasonable doubt”), the Quebec Court of Appeal found that any “shortcomings in the impugned charge fell short of the instructions which had justified judicial intervention in other cases” (as summarized by Iacobucci J., at para. 10).  This was mainly because, despite the use of some inadvisable language, the trial judge had correctly explained all of the essential elements of reasonable doubt.

32                                Considering how case-specific the matter is, I see no reason for this Court to interfere when an appellate court has exercised its judgment in evaluating the substantial compliance of a pre-Lifchus jury charge with the principles expressed in that case.  When reviewing a pre-Lifchus reasonable doubt charge, there is no particular mistake or omission that will automatically constitute a reversible error in and of itself, nor is there an additional instruction that will immediately cure a particular shortcoming.  Ultimately, the focus must be on whether there is a reasonable likelihood that the jury misunderstood the criminal standard of proof.

33                               In the present case, there are two specific portions of the charge that, in my view, reaffirmed the proper criminal standard of proof and would have assisted the jury on that issue.  First and foremost, as this was a case where the accused had testified, the trial judge charged the jury in accordance with W. (D.), supra, and specifically informed the jury on how the issue of credibility applies to reasonable doubt.  The trial judge charged as follows:

If you believe the accused you must find him not guilty.  If you do not know who to believe as between the accused and his wife and daughter you must also find him not guilty.  If you do not believe him but his testimony nonetheless causes you to have reasonable doubt you must find him not guilty.  Even if you do not believe the accused and his testimony does not cause you to have reasonable doubt then you must put his testimony to one side and consider whether on the balance of all the remaining evidence the Crown has proven the offence charged beyond a reasonable doubt.

34                               The appellant has argued that the errors in this case, taken together, may create an impression in the mind of the jury that reasonable doubt is more akin to a civil than a criminal standard.  The trial judge expressly indicated that the standard was less than “absolute certainty”, but never warned the jury that probable guilt is insufficient, instead equating the concept of reasonable doubt with its plain and ordinary meaning.  However, although the charge does not expressly state that more than probable guilt is required, in my view the W. (D.) portion of the instructions served to reaffirm the high degree of proof required for a conviction in the mind of the jury.  As Cory J. notes in W. (D.), at p. 758:

Where an error is made in the instruction on the burden of proof, the fact that the trial judge correctly instructed on that issue elsewhere in the charge is a strong indication that the jury were not left in doubt as to the burden resting on the Crown.

Where the majority of a charge complies with Lifchus principles and the trial judge has omitted to expressly indicate that more than “probable guilt” is required, it would not be reasonable to conclude that a juror, after having received additional instructions akin to those recommended in W. (D.), would remain under the impression that anything less than a proper criminal burden of proof could rest on the Crown.  Even where such an omission is made in conjunction with another error, such as defining reasonable doubt as having a plain and ordinary meaning, such shortcomings can be countered by other parts of the jury instructions that serve to make the proper definition of reasonable doubt more clear.  

35                            The substantial compliance of the trial judge’s charge to the jury in this case is further reinforced by accurate instructions on reasonable doubt as it pertains to circumstantial evidence, on which a portion of the Crown’s case ultimately rested.  The trial judge explained to the jury that, with regard to the required criminal intent and the circumstantial evidence presented to prove it, it “must be satisfied beyond a reasonable doubt that this intent is the only reasonable inference to be drawn from what you accept as the proven facts”.  Then, in reference to all the circumstantial evidence presented, the trial judge explained that “you must be satisfied beyond a reasonable doubt that where it is relied upon to support a guilty verdict the guilt of the accused is the only reasonable inference to be drawn from the facts as you have found them to be”.  Again, as with the W. (D.) charge, it would seem that any concern that the jury may have applied a probable guilt standard disappears upon consideration of these instructions with regard to circumstantial evidence.

36                            In the midst of this transitional period, where appeal courts are faced with the task of evaluating substantial compliance with Lifchus principles regarding jury instructions on reasonable doubt for cases already in the system, but predating the release of Lifchus, I can find no basis upon which to interfere with the decision of the majority of the Court of Appeal.  Not only was the charge in question in partial compliance with Lifchus guidelines, but additional aspects of the charge dealing with credibility and circumstantial evidence served to cure shortcomings in the instruction so that there can be no reasonable concern that the jury may have proceeded to convict by applying the wrong standard of proof.

VI.  Disposition

37         For these reasons, I would dismiss the appeal.

The following are the reasons delivered by

LeBel J. (dissenting) –

I.  Introduction

38                               The state of the law on what a jury charge must include about the legal concept of reasonable doubt is still in a transitional phase, as Iacobucci J. noted in R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55.  A vexing, transitional phase, I would add.  Here again is a case in which the jury charge was delivered before this Court’s decision in R. v. Lifchus, [1997] 3 S.C.R. 320, yet is being reviewed on appeal with the benefit of that and subsequent decisions.  The by-product of this transitional phase is the difficult task of ensuring that these particular jury charges are in substantial compliance with the principles of Lifchus, while at the same time not giving that important case an unreasonable effect.

39                               Of course, the problem is necessarily time-limited:  pre-Lifchus charges will eventually work their way through the system.  At that time, it will be less difficult to determine whether a trial judge, with the full benefit of Lifchus, substantially complied with its guidance, and imparted clear instruction to the jury on the crucial issue of reasonable doubt, to ensure trial fairness.  In the meantime, however, as Iacobucci J. also noted in Russell, at para. 24, “courts in our country have been and will continue to be vigilant to ensure that unfair trials and miscarriages of justice do not go unremedied”.

40                               This case is a new opportunity to clarify when a jury charge ^__ pre- or post-Lifchus ^__ falls below the minimum standard for fairness.  In this case, the jury charge was inadequate.

II.  Facts

41                               The appellant’s wife and daughter are his alleged victims, of attempted murder, and assault causing bodily harm, respectively.  The facts of what happened are largely uncontested:  it is the explanation of how and why they happened that is at the heart of this case.  The evidence was circumstantial.  The issue essentially boiled down to a credibility battle between the appellant’s and the complainants’ version of events.  The main point is that this was not a complicated case.  There were no complex legal issues.  The trial lasted four days, and after four hours of deliberations, without any questions, the jury returned a guilty verdict on both charges.

III.  Analysis

42                               Unlike with some oft-repeated principles, it is not trite to say that in our justice system an accused person cannot be found guilty of a crime unless the charges have been proven beyond a reasonable doubt.  This high burden of proof borne by the prosecution is inextricably intertwined with the equally fundamental issue of the presumption of innocence (Lifchus, supra, at para. 27).  Proof beyond a reasonable doubt is such a crucial element of our criminal law that it bears repeating.  Especially so because the concept of “reasonable doubt”, deceptively, appears simple.  It is not.  As Iacobucci J. eloquently put it in R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40, at para. 241:

... there is no universally intelligible illustration of the concept, such as the scales of justice with respect to the balance of probabilities standard.  Unlike absolute certainty or the balance of probabilities, reasonable doubt is not an easily quantifiable standard.  It cannot be measured or described by analogy.  It must be explained.  However, precisely because it is not quantifiable, it is difficult to explain.

43                               Based on these observations, this Court concluded in Lifchus that the concept of reasonable doubt must be explained to the jury, and guidelines were offered about how to do this, including approaches that would be helpful, and that should be avoided.  Since then, there has been substantial agreement that these Lifchus guidelines are not to be used as a checklist (Russell, supra, at para. 21; R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56, at para. 11); that there are no ritual incantations which will save or scuttle a jury charge (Russell, at para. 2); and that the jury charge must be viewed globally (Russell, at para. 2) to determine whether it substantially complies with the Lifchus principles (Starr, at para. 237; Avetysan, at para. 12).  These propositions remain valid.

44                               In addition, the progeny of Lifchus, including Starr, R. v. Bisson, [1998] 1 S.C.R. 306, Avetysan, R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54, and Russell, have pointed to another principle in the reasonable doubt jurisprudence:  that the explanation that criminal guilt is more than probable guilt is a basic element, and an essential, minimum standard among those listed in Lifchus.

45                               Lifchus itself pointed to this.  Instruction that reasonable doubt is a higher standard than probability was the one factor of benefit to the accused which Cory J. highlighted directly, at para. 14, in connection with trial fairness:

No matter how exemplary the directions to the jury may be in every other respect if they are wanting in this aspect [the definition of reasonable doubt] the trial must be lacking in fairness.  It is true the term has come echoing down the centuries in words of deceptive simplicity.  Yet jurors must appreciate their meaning and significance.  They must be aware that the standard of proof is higher than the standard applied in civil actions of proof based upon a balance of probabilities yet less than proof to an absolute certainty.  [Emphasis added.]

46                               The same point was echoed in Avetysan, which explained, at para. 14:

The charge in this case was defective.  The jury was not clearly told that the standard of proof was more than a balance of probabilities but less than absolute certainty.  Likewise, the jury was not told that it was required to acquit if it concluded only that the accused men were “probably guilty”, a standard that Cory J. in Lifchus found could affect the fairness of trial.  [First emphasis in original; second emphasis added.]

And again in Starr, Iacobucci J. said, at para. 241:

As was emphasized repeatedly in Lifchus and again in Bisson, a jury must be instructed that the standard of proof in a criminal trial is higher than the probability standard used in making everyday decisions and in civil trials.  Indeed, it is this very requirement to go beyond probability that meshes the standard of proof in criminal cases with the presumption of innocence and the Crown’s onus. [Emphasis in original.] 

47                               In Bisson, the fatal error was describing “reasonable doubt” as a commonly understood phrase, compounded by the use of analogy to the ordinary determination of whether one’s car has sufficient oil to run.  Significantly, one of the two rationales for finding this a reversible error was the concern that everyday decisions are often undertaken based on the unacceptably low standard based on a balance of probabilities (at para. 6):

No matter how carefully they may be crafted, examples of what may constitute proof beyond a reasonable doubt can give rise to difficulties.  First, they may tend to indicate to a juror that the decision as to whether guilt has been proven beyond a reasonable doubt can be made on the same basis as would any decision made in the course of their daily routines.  The same danger exists even if these are important decisions.  So often those “everyday” decisions in life are reached by utilizing a standard of probability.

48                               Therefore, when this Court held in Starr that the jury charge in that case was inadequate, it was because the errors served to compound the single weakness that the jury was not warned against deciding the case based on “probable guilt”.  In Starr, the trial judge had instructed the jury that the concept of reasonable doubt (1) has no “special connotation”; and (2) should not be equated with absolute certainty; but (3) the jury was not cautioned against deciding on the basis of probable guilt.  Thus the jury was essentially directed to use an ordinary standard – probability – and then was not explicitly advised that probable guilt was an inappropriately low standard on which to base criminal guilt.  As Iacobucci J. put it, at para. 239:

The key difficulty with this instruction is that it was not made clear to the jury that the Crown was required to do more than prove the appellant’s guilt on a balance of probabilities.  The trial judge told the jury that they could convict on the basis of something less than absolute certainty of guilt, but did not explain, in essence, how much less.  In addition, rather than telling the jury that the words “reasonable doubt” have a specific meaning in the legal context, the trial judge expressly instructed the jury that the words have no “special connotation” and “no magic meaning that is peculiar to the law”.  By asserting that absolute certainty was not required, and then linking the standard of proof to the “ordinary everyday” meaning of the words “reasonable doubt”, the trial judge could easily have been understood by the jury as asserting a probability standard as the applicable standard of proof.

49                               In fact, Starr suggests at para. 242 that the corollary to the point that a jury must understand that reasonable doubt is more than probable guilt is that the remaining Lifchus factors are secondary to this basic and necessary factor: 

As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict.  Both of these alternative standards are fairly and easily comprehensible.  It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards.  The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt.  [Emphasis added.] 

The result in Beauchamp was consistent with this approach, where only a so-called “secondary” factor was at issue.  The judge’s only flaw in that jury charge was to describe “beyond a reasonable doubt” as a “moral certainty”.  Otherwise, the charge did adequately explain that reasonable doubt exists between the upper and lower limits of absolute certainty and probability.  The reference to morality was only one way in which the trial judge defined the space between these limits ^__ a factor, although not ideal, that was nevertheless not fatal to the fairness of the trial.

50                               Finally, viewing probable guilt as a basic and essential Lifchus feature is also consistent with the general approach taken by this Court that, “the absence of one of the required ingredients of Lifchus, or the inclusion of one of the inappropriate elements, ‘will not usually be determinative of the validity of the charge as a whole’” (Russell, at para. 21, quoting from Avetysan, at para. 11 (emphasis added)).  The issue of the word “usually” left open, indeed appears to have anticipated, that there may be occasions in which an omission or exclusion contrary to Lifchus could be determinative of the adequacy of the jury charge.

51                               In summary then, I would clarify the present jurisprudence by stating that an essential feature of the necessary explanation of reasonable doubt is some instruction to the jury that the standard of proof beyond a reasonable doubt is distinct from, and a higher standard than, proof on a balance of probabilities.  This is not to say that any particular words must be used, only that this essential concept must be conveyed in some way as part of the required explanation of reasonable doubt.  I give this concept primacy among all the Lifchus factors, based on a consistent thread which has emerged in this Court’s reasoning in the wake of Lifchus.

52                               Nevertheless, it should be stressed that no special incantation of the words “balance of probabilities” or “probable guilt” is required.  It is sufficient, yet necessary, to ensure that on the whole the jury is aware that such a standard cannot be used to determine criminal guilt.  In Russell, the exclusion of a reference to the probability standard was not fatal.  This was because on reading the jury charge as a whole, there was still no reasonable likelihood that the jury would have misapprehended that its duty was to apply a higher standard of proof.

53                               In Russell, the jury was instructed that reasonable doubt and the presumption of innocence are intertwined.  It was told that reasonable doubt is not frivolous, but rather based on reason and the evidence which allows a juror to conclude “I am sure.”  Furthermore, in response to a jury question about the Crown’s burden of proving intent to kill, the judge additionally instructed the jury, “if you have any doubt on that issue, you have to give the benefit of the doubt to the accused”.  In essence, although no absolute certainty ceiling, nor probable guilt floor was mentioned to explain reasonable doubt in this jury charge, the instruction to be “sure”, with the other Lifchus factors and with the additional direction to give any benefit of the doubt to the accused would have effectively shown to the jury that probable guilt was not enough to convict. 

54                               It is important to add that in a case such as Russell, where the upper and lower limits of reasonable doubt are not mentioned, but the jury is told it has to be sure, this does not mean that the instruction “to be sure” will be a satisfactory replacement for a proper explanation about probability in all cases.  In Russell, it must be remembered that the jury got additional guidance in response to its question, and that the jury charge under scrutiny was one delivered pre-Lifchus.

55                               In Russell, however, when taken as a whole, the jury charge substantially complied with Lifchus by effectively ensuring that the “floor” was in place, so that the jury could not have convicted merely on a balance of probabilities.  If this minimum standard had not been met, this would have been enough, with nothing more, to find the jury charge inadequate.  As it happened, in other cases where the jury charge on reasonable doubt was inadequate, there were additional trial errors which sealed this fate, and a new trial was ordered.  It is in this context that para. 25 of Russell must be read:

In Starr, as in Avetysan, the cumulative effect of errors that were made on issues that went to the jury led us to the conclusion that a new trial was warranted.  In Starr, the major issue before the Court was that, in the view of the majority, the trial judge had improperly allowed inadmissible evidence.  In Avetysan, the trial judge failed to warn the jury that even if it disbelieved the accused, it could still entertain a reasonable doubt.  Here, . . . I am not persuaded that there is any reason to interfere with the majority’s disposition of the appeal, particularly when it thoroughly addressed the elements of the Lifchus principles.  The fact that the Court of Appeal unanimously dismissed all other grounds of appeal, and none of these other issues is before us, distinguishes this case from Starr and Avetysan.  Consequently, I cannot say that the accused’s trial was unfair in the sense that the integrity of the verdict was compromised. 

The principal message to be taken from Russell and the other cases which have applied Lifchus is that, where a jury charge does not substantially comply with Lifchus, it will be inadequate – nothing more is needed.  Russell met the Lifchus standard.  But, that is not the case in the present appeal.

IV.  Application to this Case

56                               The first significant problem with this jury charge is that the judge instructed that:  “The term ‘reasonable doubt’ is to be given its natural meaning.  It is not a legal term having some special connotation.”  This explanation is clearly problematic, as it was in Lifchus, Bisson and Russell.  It signalled to the jury that “reasonable doubt” has no special meaning, and would have invited each juror to rely on his or her own personal view or experience about what reasonable doubt may mean.  As the case law has explained, this is likely an invitation for jurors to apply a probability standard, as they would in the majority of their life decisions.

57                               The next significant problem in this charge followed closely.  The trial judge made no mention of the inappropriate low standard of probability ^__ a problem discussed in Starr, Avetysan and Russell.  But unlike Russell, this silence was compounded when the trial judge went to elaborate on the upper limit of what reasonable doubt means, without mentioning its corresponding lower limit:

You must not base your doubt on the proposition that nothing is certain, therefore, you have doubt or on the proposition that anything is possible, therefore, you have a doubt.  You are not entitled to set up a standard of absolute certainty and say that the evidence does not measure up to that standard.  In many things in life it is not possible to prove absolute certainty.

This instruction effectively warned the jury away from a standard of proof that is too high, but did not give a corresponding warning that the low standard of probability is too low.

58                               The trial judge did try to fill in the meaning of reasonable doubt with the following explanation:

A reasonable doubt is an honest and fair doubt based upon reason and common sense, it is a real doubt, not an imaginary or frivolous doubt, it is a doubt based on reason, therefore, if you were to ask yourself why you doubt you could assign a logical reason for your doubt.  A logical reason in this context means a reason connected to the evidence itself. . . .

But, as the jurisprudence indicates, these “secondary” factors are only helpful in explaining reasonable doubt, but not sufficient, without some assurance that the jury will apply a standard higher than probability.  In Russell, that was accomplished.  In this case, the ceiling was set, but the floor was missing.

59                               It was argued that notwithstanding any weakness in the jury charge in this case, the jury must have known to apply a standard higher than probability.  This was submitted on the strength of the direction to the jury that when considering all of the circumstantial evidence, “you must be satisfied beyond a reasonable doubt that where it is relied upon to support a guilty verdict the guilt of the accused is the only reasonable inference to be drawn from the facts as you have found them to be” (emphasis added).  There is a danger, however, that the jury may have thought that a decision based on probable guilt was still logical, not frivolous, based on the evidence ^__ in other words, that it was a reasonable inference.  I am not persuaded that by telling the jury its decision must be the “only” reasonable inference drawn from the evidence, that this would be significant enough to steer it away from a finding of probable guilt.  In my view, a juror can easily understand the instruction that “you must be sure”; in contrast, the direction that “you must be satisfied beyond a reasonable doubt that guilt is the only reasonable inference” is significantly less clear.  In the end, this instruction appears to confuse rather than clarify the meaning of reasonable doubt, and certainly does not make it clear that a conviction cannot be based on probable guilt.  The likelihood of the jury’s misapprehension of the reasonable doubt in this case was too high to allow the accused’s guilt or innocence to ride on it.

60                               It was also submitted that the judge’s instruction on how to deal with the contradictory evidence in this case was sufficient to ensure that the jury applied the correct standard to determine guilt.  The jury charge directed:

If you believe the accused you must find him not guilty.  If you do not know who to believe as between the accused and his wife and daughter you must also find him not guilty.  If you do not believe him but his testimony nonetheless causes you to have reasonable doubt you must find him not guilty.  Even if you do not believe the accused and his testimony does not cause you to have reasonable doubt then you must put his testimony to one side and consider whether on the balance of all the remaining evidence the Crown has proven the offence charged beyond a reasonable doubt.  If it has you should find the accused guilty.

While it is not necessary to decide this point in the present appeal, this aspect of the jury charge does appear to comply with the legal standard (see R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. S. (W.D.), [1994] 3 S.C.R. 521; and Avetysan).  However, it does not cure the inadequacy of the explanation of reasonable doubt, it merely tells the jury to use that standard in assessing whether the Crown has proven its case. 

61                               This distinction is illustrated in Avetysan.  In that case, the jury charge was faulted for two reasons:  (1) “[t]he jury was not clearly told that the standard of proof was more than a balance of probabilities but less than absolute certainty” (para. 14), and (2) “[t]he jury should have been warned not to convict automatically if it found the testimony of the complainant was more credible than that of the appellant and [co-accused]” (para. 22).  In other words, the error in the direction of how to deal with contradictory evidence was separate from the error concerning reasonable doubt, although each also compounded the other.

62                               Therefore, in this case, no matter how flawless the charge was in laying out the various ways of viewing the evidence, the jury still could come to a fair assessment of guilt if it did not know the proper standard of proof to apply to the version of events it was inclined to believe.

63                               Finally, it is significant that this all took place in the context of a relatively simple trial, which was essentially a credibility battle between the accused and his wife and daughter, his two alleged victims.  As the appellant pointed out, the assessment of credibility is an everyday exercise, which is likely carried out on a probability standard.  Furthermore, the evidence was circumstantial, the legal issues before the jury were not complex, and indeed, the jury did not find it necessary to ask any questions during its deliberations.  This was an exacerbating factor which reinforced the jury’s impression that no special legal concepts were at play here, and that its ordinary approach to probability-based problem solving was appropriate. 

64                               The importance of taking into account such trial details was raised in Russell and serves to distinguish that case from the one at bar.  In Russell, the Court said at para. 17:

[The] assessment of the sufficiency of the charge is a function primarily exercised by courts of appeal and requires a detailed review of the charge as a whole in the full context of the trial:  the complexity of the factual issues to be resolved, their degree of contentiousness, the nature and quality of the evidence tendered by the parties, their respective positions at trial, as well as any concerns that may have been expressed by the jury in its questions after the charge.

65                               In Russell, the complex issues were mens rea and the relevance of drunkenness on the accused’s ability to form the necessary intent for murder.  These are clearly special legal concepts.  And the jury obviously struggled with them to the extent that it asked the judge a question in this regard, during its deliberations.  Russell instructs that such trial details are significant to the scrutiny of a jury charge.  In the present case, the facts were easier to comprehend, the legal issues were simpler, and the jury asked no questions.  The danger of this apparent simplicity is that there was less in this trial to signal to the jury that it had special legal issues to consider, or anything more than an everyday issue of probability to determine.

66                               One final note:  while trial context is relevant in the overall determination of whether a jury charge substantially complied with the Lifchus principles, this should not extend to a consideration of how strong the case was for either the Crown or the defence.  This is a finding of fact, and it should be left to the jury. 

67                               Only one point remains to be discussed.  At the hearing it was argued that this Court should defer to the judgment of the Court of Appeal, in the absence of an error of law.  This issue, too, is complicated by the vexing transitional phase in which the courts still find themselves.  In this case, the jury charge was delivered pre-Lifchus, the Court of Appeal review was after Lifchus, while this Court’s perspective is now further broadened by the judgments in Starr, Bisson, Beauchamp, Avetysan and Russell.  Notwithstanding this fact, a close reading of the decision of Esson J.A. for the majority in the court below reveals that he misunderstood the principle that even pre-Lifchus jury charges must substantially comply with that judgment.  As a result, with respect, I think the trial judge misapplied this principle.

68                               In this case, Esson J.A. relied on his decision in the companion case of R. v. K. (K.) (2000), 144 C.C.C. (3d) 35, 2000 BCCA 161, to rule that a jury charge on reasonable doubt delivered before Lifchus need not comply with Lifchus’s enumerated principles (at paras. 3-5): 

As in K.K., the trial took place before the decision of the Supreme Court in R. v. Lifchus . . . .

The appellant alleges five errors, two of omission and three of commission is defining reasonable doubt.  The alleged errors of omission are in failing to instruct the jury that more is required than probable guilt and in failing to instruct them that they must be “sure” that the accused committed the offence. 

For the reasons given in K.K., I find no merit in those submissions.

69                               The reasons in K. (K.), at para. 19, make it clear that Esson J.A. was of the view that Lifchus has no retroactive effect:

The lengthy discussion under the heading “How Should the Expression ‘Reasonable Doubt’ be Explained to the Jury?” [in Lifchus] is undoubtedly of major importance.  But it does not arise out of the facts of the case and, in my view, is clearly intended to apply only to future cases, and not to charges given before September 18, 1997 [the release date of Lifchus].  It is implicit in the term “suggested charge” that Cory J., in that section of his reasons, was speaking to the future.

Again, in para. 24 of K. (K.), Esson J.A. writes:

The basic error in Lowns [R. v. Lowns (1998), 131 C.C.C. (3d) 295 (B.C.C.A.), leave to appeal refused, [1999] 1 S.C.R. xii], in my respectful view, is in assuming that the suggested charge in Lifchus is to be applied to cases which, at the date of that decision, were “in the system”. 

Finally, in para. 26 of K. (K.), the point is again reiterated:

It may well be that the holding in Lifchus that it is a fundamental principle that juries be provided with a definition of reasonable doubt will be found to apply to cases which were “in the pipeline” at the date of that decision.  But that cannot rationally apply to the model charge which brings about merely an incremental change in established law and which, on its face, is intended to apply only prospectively. 

70                               Based on this view, in the present case Esson J.A. concluded, at para. 7:

When the comment that reasonable doubt is not a legal term is read in its context, it must be seen as being at worst a harmless error if, before Lifchus, it could be considered an error at all.

Esson J.A. was at a disadvantage, as he was deciding before the release of this Court’s judgments in Starr, Bisson and Avetysan.  These cases make it clear that all of the principles enumerated in Lifchus will and must be applied to jury charges delivered before its release, but still in the system.  As I remarked at the outset of these reasons, this Court has noted how this has given rise to a vexing “transitional period”, but one in which, nevertheless, courts “will continue to be vigilant to ensure that unfair trials and miscarriages of justice do not go unremedied”.

V.  Conclusion

71                               To sum up, in my view, it is now clear that a jury must understand that guilt beyond a reasonable doubt is a standard higher than probable guilt.  However that is accomplished, it is nevertheless a basic and necessary element of the Lifchus principles to be included in every jury charge.  In the case at bar, that message was simply not conveyed.  On the whole, in the jury charge in this case, unlike in Russell, this minimum standard, the probable guilt “floor” was missing, and as a result, there was a reasonable likelihood that the jury misunderstood this key aspect of its deliberative task.  I would therefore allow the appeal and order a new trial.

Appeal dismissed, LeBel J. dissenting.

Solicitors for the appellant:  Gibbons Ritchie, Vancouver.

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