R. v. Beauchamp, 2000 SCC 54, [2000] 2 SCR 720

R. v. Beauchamp, [2000] 2 S.C.R. 720

Alain Beauchamp         Appellant

v.

Her Majesty The Queen                                                                   Respondent

Indexed as:  R. v. Beauchamp

Neutral citation:  2000 SCC 54.

File No.:  27075.

Hearing and judgment:  December 8, 1999.

Reasons delivered:  November 10, 2000.

Present:  Gonthier, McLachlin, Iacobucci, Bastarache and Binnie JJ.

on appeal from the court of appeal for quebec

Criminal law — Charge to jury — Reasonable doubt — Accused convicted of second degree murder — Whether pre-Lifchus charge on reasonable doubt in substantial compliance with principles set out in Lifchus.

The accused was charged with second degree murder.  The trial judge,  who did not have the benefit of this Court’s decision in Lifchus, referred to the expression “moral certainty” in describing reasonable doubt in her charge to the jury.  The accused was convicted and the majority of the Court of Appeal dismissed his appeal from conviction.  The majority noted that this Court had disapproved in Lifchus of the use of the expression “moral certainty” when describing reasonable doubt, but concluded that, notwithstanding certain references to expressions which should have been avoided in the formulation of the instructions, the essence of the notion of reasonable doubt had properly been conveyed to the jury such that it could not have misapprehended the applicable standard of proof.  The sole issue raised in this appeal as of right  is whether the majority of the Court of Appeal erred in finding that the trial judge’s charge to the jury was in substantial compliance with the principles enunciated in Lifchus.

Held:  The appeal should be dismissed.

In reviewing a trial judge’s instructions to the jury on the reasonable doubt standard, the criterion remains one of “substantial compliance” with the principles set out in Lifchus.  An appellate court must assess whether the essential elements of a fair and accurate instruction on reasonable doubt are present and have been properly explained, such that there is no reasonable likelihood that the jury misapprehended the proper burden and standard of proof.  Assessing substantial compliance is not a mechanical task.  Rather, it is a judgment call on whether any deficiencies in the charge fall below the Lifchus standard such as to cause serious concern about the validity of the jury’s verdict, and lead to the conclusion that the accused did not have a fair trial.  Appellate review of substantial compliance is inevitably in a transitional phase and the failure of pre-Lifchus jury charges to reflect the Lifchus principles cannot alone be taken to raise the spectre of an unfair trial or miscarriage of justice.  At the same time, Canadian courts have been and will continue to be vigilant to ensure that unfair trials and miscarriages of justice do not go unremedied.  In this case, there is no reason to intervene in the majority of the Court of Appeal’s finding that the trial judge’s charge to the jury was in substantial compliance with the principles enunciated in Lifchus.

Cases Cited

Applied:  R. v. Lifchus, [1997] 3 S.C.R. 320; referred to:  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. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56.

APPEAL from a judgment of the Quebec Court of Appeal, [1998] Q.J. No. 3682 (QL), J.E. 99-230, dismissing the accused’s appeal from his conviction for second degree murder.  Appeal dismissed.

Robert Delorme and Alexandre Boucher, for the appellant.

Stella Gabbino and Carole Lebeuf, for the respondent.

The judgment of the Court was delivered by

Iacobucci J. —

I.  Introduction

1          The appellant, Alain Beauchamp, was arrested on August 21, 1994 for the murder of Élaine Cormier.  He was convicted at trial before a judge and jury of second degree murder.  His conviction rested entirely on circumstantial evidence, including extrajudicial statements made by the appellant before and after his arrest.  This appeal was taken as of right from the decision of the Quebec Court of Appeal which  dismissed the appellant’s appeal from his conviction, and allowed the appeal with respect to his sentence.  Fish J.A., dissenting, would have allowed the appeal from conviction and ordered a new trial.  In his view, the trial judge’s charge to the jury, when read as a whole, gave rise to a reasonable likelihood that the jury misapprehended the applicable standard of proof required for conviction. 

2          The sole issue raised by this appeal is whether as reviewed by the Quebec Court of Appeal the trial judge’s instructions to the jury, considered as a whole, resulted in a charge which might reasonably be thought to have misled the jurors with respect to their ability to understand and apply the standard of proof “beyond a reasonable doubt”.  At the outset, it should be noted that this appeal was dismissed by judgment released December 8, 1999, with reasons to follow.

3          By way of summary, I am in general agreement with the reasons of Philippon J. (ad hoc), writing for the majority of the Quebec Court of Appeal.  I see no reason to interfere with the reasons of the majority and consequently would dismiss the appeal.

II.  Factual Background

4          On August 13, 1994, the naked body of Élaine Cormier was found on a  wooded countryside lot which belonged to the appellant’s grandparents.  Despite an autopsy, the cause of death could not be determined owing to the corpse’s advanced state of decay.  There were two highly putrefied orifices on the body, one on the abdomen, the other, in the area of the perineum and pubis.

5          The appellant and the victim had been acquainted only briefly.  They had spent the evening of July 20, 1994 together.  Police investigators were unable to identify anyone having seen the victim subsequent to the night in question.  After the disappearance of the victim was announced, but before the body was found, the appellant told his sister that he would be [translation] “in deep shit” if the corpse were found. 

6          The appellant also stated that, in all likelihood, he would be arrested for the murder of Élaine Cormier since he had no doubt that it was her body that had been found.  This statement was articulated before the name or sex of the victim was released.  In response to a question concerning the place where the body might have been found, the appellant answered: [translation] “I put her there”.

7          On July 21, the appellant arrived at his sister’s house at approximately 1:00 a.m. (though he alleged arriving between 10:30 and 11:00 p.m. of the night before).  He asked for a garbage bag, allegedly to clean out a cooler that he had used camping.  But, according to a witness, this cooler had already been emptied out.  The appellant’s sister did not find the garbage bag in front of her house, where the appellant had claimed to have placed it.  But a similar bag, containing a pair of blue jeans, was found in front of the neighbouring house.  Evidence established that the neighbours did not dispose of such a piece of clothing, and that the bag did not belong to them.  Testimonial evidence as to what the victim was wearing the day on which she was last seen was contradictory.  However, it was established that she owned a similar pair of jeans which were not found amongst her personal belongings during the investigation.  Statements made by the appellant to investigators about his comings and goings and certain things he did after leaving Ms. Cormier revealed inconsistencies.

III.  Judicial History

8          Because the sufficiency of the  trial judge’s charge to the jury is the only issue that forms the basis of this appeal, the summary of the judgments below is limited to this aspect.

A.  Superior Court

9          In her instructions to the jury, Zerbisias J. emphasized the presumption of innocence and explained the relationship between this fundamental principle and the standard of proof beyond a reasonable doubt.  She stated that the onus of proving guilt rests upon the prosecution throughout the trial and never shifts to the accused.  She stressed that the accused is presumed innocent and continues to be unless, after considering all the evidence, the jury is satisfied that the Crown has proved beyond a reasonable doubt that the accused is guilty.  Zerbisias J. then defined the reasonable doubt standard in the following terms:

[translation]  I will now discuss the presumption of innocence and the requirement of proof beyond a reasonable doubt.  The presumption of innocence is the fundamental principle of Canadian criminal law:  an accused person is presumed innocent until proven guilty by the Crown beyond a reasonable doubt.

An accused person does not have to prove he is innocent.  You must presume the accused is innocent throughout your deliberations.  You may find him guilty only if, after considering all the evidence, you are satisfied the Crown has made its case beyond a reasonable doubt.

The standard of proof beyond a reasonable doubt has to do not with the details or the various pieces of evidence considered separately but with the evidence as a whole on which the Crown’s case is based.  It is always up to the Crown to prove the accused guilty, and this onus does not shift; the accused does not have to prove anything.

You must find the accused not guilty if, after reviewing all the evidence, there is a reasonable doubt in your minds.

What, then, is proof beyond a reasonable doubt? There is no simple answer:  a reasonable doubt could arise from the evidence, from conflicting evidence or from a lack of evidence.  A reasonable doubt is based on reason, it is not an imaginary doubt, it is the type of doubt for which you could give a logical and reasonable explanation if you were asked.  If you are morally certain or feel sure the accused committed the offence with which he was charged, you do not have a reasonable doubt.  If you think the accused is probably guilty, you still have a reasonable doubt; you must give the benefit of this doubt and render a verdict of not guilty.

On the other hand, you must not consider the Crown’s onus of proof to be a standard of absolute certainty, you must be satisfied beyond a reasonable doubt that the accused is guilty, beyond a reasonable doubt.  I will read you the definition approved by our higher courts and even our highest Court.  I believe it is explained well.  It means, and I quote:

What is meant by reasonable doubt is the state of mind of a reasonable person who, after having considered the factual evidence, cannot be morally certain that the accused is guilty.  It is therefore up to the prosecution, through its witnesses, the exhibits or the admissions in the record, to prove beyond a reasonable doubt — not mathematically, which is always impossible in a trial, as there is no absolute certainty — so it is always up to the Crown to prove beyond a reasonable doubt that the accused is guilty of the offence with which he is charged.  If a reasonable doubt. . . .

And this is important.

. . . not a fanciful, capricious or emotional doubt, but a truly reasonable doubt remains, not in your imagination but in your mind, in your reason, it is your duty to give the accused the benefit of this reasonable doubt about him and find him not guilty.

In other words, if, after hearing all the evidence, after reviewing the exhibits that have been entered, and in light of my comments and instructions on the law, you reach the conclusion that the prosecution has failed to prove the accused guilty beyond a reasonable doubt, a real doubt, a serious doubt, it is your duty to give the accused the benefit of the reasonable doubt and find him not guilty of the offence with which he has been charged.

There have been many attempts to define “reasonable doubt”; some naysayers have even suggested that if judges did not try so hard to explain what it meant, jurors would understand it better.  In any event, a reasonable doubt is a doubt that arises out of an individual’s reason, it is a serious, real doubt, not an imaginary, fanciful or theoretical doubt, and certainly not a doubt for the sake of shirking or avoiding your responsibilities as jurors.

The only question, and the key question, each and every one of you must ask yourself is the following: has the prosecution morally convinced me that the accused is guilty, am I morally certain of that?  That is the question.  The requirement of proof beyond a reasonable doubt applies to each essential element of the offence.  The Crown must prove that the accused committed each of the elements of the offence.  So when I use the words “the Crown must prove” or “the Crown must establish” or “the Crown must show” or “you must be convinced”, please understand that these expressions all mean proof by the Crown beyond a reasonable doubt.

B.  Quebec Court of Appeal, [1998] Q.J. No. 3682 (QL)

                   (1) Philippon J. (ad hoc) (Robert J.A. concurring) 

10      On the issue of the trial judge’s instructions to the jury on the applicable standard of proof, Philippon J. recognized that some of the expressions to which the trial judge had referred should have been avoided.  However, Philippon J. found that the charge as a whole was acceptable in so far as, on the one hand, all of the critical elements relating to the applicable burden and standard of proof as set out in R. v. Lifchus, [1997] 3 S.C.R. 320, had been explained, and on the other hand, the few expressions mentioned by the trial judge which should have been avoided could not have had the effect of misleading the jurors.  According to Philippon J., the shortcomings in the impugned charge fell short of the instructions which had justified judicial intervention in other cases.

11      Philippon J. noted that this Court, while disapproving of the use of the expression “moral certainty” in Lifchus, recognized that such expression had once been considered a meaningful way of describing reasonable doubt.  Moreover, Philippon J. reiterated that according to Lifchus, the use of recently prohibited expressions will not affect the verdict if the charge, when read as whole, does not give rise to the reasonable likelihood that the jury misapprehended the correct standard of proof.  A review of the trial judge’s instructions led Philippon J. to conclude that the charge taken in its entirety satisfied this requirement.

12      Notwithstanding certain references to expressions which should have been avoided in the formulation of the instructions, Philippon J. found that the trial judge had correctly explained all of the essential elements of reasonable doubt, namely:  (1) the connection between the standard of proof beyond a reasonable doubt and the principle fundamental to all criminal trials, the presumption of innocence; (2) the requirement that the burden of proof rests on the prosecution throughout the entire trial and never shifts to the accused; (3) the principle that a reasonable doubt is not one based upon sympathy or prejudice, nor is it a frivolous or imaginary doubt, but rather, is based upon reason; (4) that absolute certainty is not required; and (5) finally, the requirement that the Crown must prove more than mere probability of guilt and that where the jury concludes that the accused is probably guilty, he must be acquitted.  Furthermore, Philippon J. found that the trial judge had properly avoided describing the phrase “reasonable doubt” as an ordinary expression without any special meaning in the criminal law context.  Consequently, Philippon J. concluded that the essence of the notion of reasonable doubt had properly been conveyed to the jury, such that it could not have misapprehended the applicable standard of proof.

(2) Fish J.A. (dissenting)

13      Fish J.A. held that the trial judge, who did not have the benefit of Lifchus, erred in her instructions to the jury concerning the meaning of the criminal standard of proof.  Fish J.A. reviewed some of the principles which were articulated in Lifchus, namely, that trial judges should not qualify the word “doubt” with adjectives other than “reasonable”, nor should they instruct the jury, before giving it a proper definition of the standard of proof, that it may convict if it is “sure” that the accused committed the crime.  He added that instructions should not be given which would limit “reasonable doubt” to a doubt for which a reason can be supplied.  Fish J.A. then reviewed the trial judge’s corresponding errors.

14      However, Fish J.A. held that the most troubling error related to the trial judge’s references to “moral certainty”.  While he recognized that referring to “moral certainty” in a jury charge was not necessarily fatal, he found that Lifchus prohibited any equation between “proof beyond a reasonable doubt” and “proof to a moral certainty”.  According to Fish J.A., the trial judge’s references to moral certainty amounted to the prohibited equation.  In light of this error and of the other flaws mentioned, Fish J.A. concluded that the charge, as a whole, gave rise to the reasonable likelihood that the jury misapprehended the criminal standard of proof.  Fish J.A. would have consequently ordered a new trial.

IV.  Issue

15      As already stated, this is an appeal as of right and the only issue raised is whether the majority of the Quebec Court of Appeal erred in finding that the trial judge’s charge to the jury was in substantial compliance with the principles enunciated in Lifchus.

V.  Analysis

16      In R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40, and R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55, and R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56, released concurrently herewith, the principles set out by this Court in Lifchus, supra, on the appropriate manner of instructing a jury on the reasonable doubt standard were applied.  As noted in Starr, Avetysan and Russell, the criterion, in reviewing a trial judge’s instructions to the jury, remains one of “substantial compliance” with the principles set out in Lifchus (Starr, supra, at paras. 237 and 243).  An appellate court must assess whether “the essential elements of a fair and accurate instruction on reasonable doubt are present and have been properly explained” (Starr, supra, at para. 233), such that there is no reasonable likelihood that the jury misapprehended the proper burden and standard of proof. The charge in this case was delivered prior to Lifchus.  However, it was reviewed by the Quebec Court of Appeal after Lifchus.

17      At the outset, it is important to emphasize that, as Starr, Russell and Avetysan have noted, Lifchus was aimed at improving a trial judge’s jury instructions on reasonable doubt.  Major J.’s words in Avetysan, at para. 12, bear repeating here:

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.

18      As was stated in Russell (at paras. 23 and 24), since we are dealing with the Court of Appeal’s review of a trial judge’s jury charge on reasonable doubt, the following points must be kept in mind.

The appellate assessment of substantial compliance with the Lifchus principles in cases where the trial judge did not have the benefit of that decision, and may have used, in parts of the charge, language that will likely be discontinued in the future or omitted parts recommended in Lifchus, is not a mechanical task.  Rather, it is a judgment call on whether the deficiencies in the charge fall below the Lifchus standard such as to cause serious concern about the validity of the jury’s verdict, and lead to the conclusion that the accused did not have a fair trial. 

The appellate review of substantial compliance with Lifchus is inevitably in a transitional phase. Instructions along the lines articulated in Lifchus, and applied in Starr, will assist future  juries in better understanding their tasks, and will ensure that the fact-finding process at trial truly respects the fundamental requirements of proof beyond a reasonable doubt.  In this respect, the failure of jury charges prior to Lifchus to reflect its principles cannot be taken to raise by that alone the spectre of an unfair trial or miscarriage of justice.  Having said that, 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.

19      Applying the foregoing observations to the majority decision of the Court of Appeal, I can find no reason to intervene in the majority’s holding that, in effect, there was substantial compliance with the Lifchus principles.  Accordingly, the appeal is dismissed.

Appeal dismissed.

Solicitors for the appellant:  Delorme & Boucher, Montréal.

Solicitor for the respondent:  The Attorney General’s Prosecutor, St-Jérôme.