R. v. Lifchus, [1997] 3 SCR 320

R. v. Lifchus, [1997] 3 S.C.R. 320

Her Majesty The Queen                                                                   Appellant

v.

William Lifchus                                                                                  Respondent

Indexed as:  R. v. Lifchus

File No.:  25404.

1997:  May 29; 1997: September 18.^*

Present:  Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for manitoba

Criminal law ‑‑ Charge to jury ‑‑ Reasonable doubt ‑‑ Whether trial judge must provide jury with explanation of “reasonable doubt” ‑‑ If so, how concept should be explained to jury ‑‑ Suggested charge on “reasonable doubt”.

Criminal law ‑‑ Charge to jury ‑‑ Reasonable doubt ‑‑ Whether trial judge  misdirected jury on meaning of reasonable doubt ‑‑ If so, whether curative proviso applicable ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (b)(iii).

The accused, a stockbroker, was charged with fraud.  The trial judge told the jury in her charge on the burden of proof that she used the words “‘proof beyond a reasonable doubt’  . . . in their ordinary, natural every day sense”, and that the words “doubt” and “reasonable” are “ordinary, every day words that . . . you understand”.  The accused was convicted of fraud.  On appeal, he contended that the trial judge had erred in instructing the jury on the meaning of the expression “proof beyond a reasonable doubt”.  The Court of Appeal allowed the appeal and ordered a new trial.

Held:  The appeal should be dismissed.

Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.:  A jury must be provided with an explanation of the expression “reasonable doubt”.  This expression, which is composed of words commonly used in everyday speech, has a specific meaning in the legal context. The trial judge must explain to the jury that the standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence, the basic premise which is fundamental to all criminal trials, and that the burden of proof rests on the prosecution throughout the trial and never shifts to the accused. The jury should be instructed that a reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice.  A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty.  Such a standard of proof is impossibly high.  Certain references to the required standard of proof should be avoided.  A reasonable doubt should not be described as an ordinary expression which has no special meaning in the criminal law context, and jurors should not be invited to apply to the determination of guilt in a criminal trial the same standard of proof that they would apply to the decisions they are required to make in their everyday lives, or even to the most important of these decisions. Nor is it helpful to describe proof beyond a reasonable doubt simply as proof to a “moral certainty”. As well, the word “doubt” should not be qualified other than by way of the adjective “reasonable”.  To instruct a jury that a “reasonable doubt” is a “haunting” doubt, a “substantial” doubt or a “serious” doubt may have the effect of misleading the jury.  Lastly, it is only after proper instructions have been given as to the meaning of the expression “beyond a reasonable doubt” that jurors may be advised that they can convict if they are “certain” or “sure” that the accused is guilty.  The model charge set out in the reasons may be useful but any charge which is consistent with these principles will suffice regardless of the particular words used by the trial judge.

Here,  the trial judge failed to explain the standard of proof fully and properly to the jury.  He did not provide a definition of “reasonable doubt” and told the jurors to evaluate the concept of reasonable doubt as if these were “ordinary, every day words”.  This is an unacceptable direction. In the context of a criminal trial, the words “reasonable” and “doubt” have a specific meaning.  Since the trial judge did not provide any further guidance to the jury concerning the meaning of proof beyond a reasonable doubt, this serious error was not saved by further instructions and gave rise to the reasonable likelihood that the jury misapprehended the burden of proof which they were required to apply.  Section 686(1) (b)(iii) of the Criminal Code  is not applicable. The correct explanation of the requisite burden of proof is essential to ensure a fair criminal trial and a serious error was made on this fundamental principle of criminal law.  It cannot be said that, had the trial judge not erred, the verdict would necessarily have been the same.

Per La Forest, L’Heureux‑Dubé and Gonthier JJ.:  Cory J.’s approach and result on the question of reasonable doubt are agreed with. Section 686(1) (b)(iii) of the Criminal Code  is an inappropriate remedy in this case.  Given that the full trial record was not before the Court, and that the submissions on the “miscarriage of justice” aspect of the provision were insufficient, the Crown has failed to discharge its burden to satisfy the Court “that the verdict would necessarily have been the same if the error had not been made”.

Cases Cited

By Cory J.

Referred to:  R. v. Brydon, [1995] 4 S.C.R. 253, rev’g (1995), 95 C.C.C. (3d) 509; Victor v. Nebraska, 127 L Ed 2d 583 (1994); R. v. Tyhurst (1992), 79 C.C.C. (3d) 238; R. v. Jenkins (1996), 107 C.C.C. (3d) 440; R. v. Hrynyk (1948), 93 C.C.C. 100; R. v. Girard (1996), 109 C.C.C. (3d) 545; Boucher v. The Queen, [1955] S.C.R. 16; R. v. Bergeron (1996), 109 C.C.C. (3d) 571; R. v. Ford (1991), 12 W.C.B. (2d) 576; R. v. W. (D.), [1991] 1 S.C.R. 742.

By L’Heureux‑Dubé J.

Referred to:  R. v. Hebert, [1996] 2 S.C.R. 272; Colpitts v. The Queen, [1965] S.C.R. 739.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].

Authors Cited

Wigmore, John Henry.  Evidence in Trials at Common Law, vol. 9. Revised by James H. Chadbourn.  Boston:  Little, Brown & Co., 1981.

Williams, Glanville.  Criminal Law:  The General Part, 2nd ed. London:  Stevens & Sons Ltd., 1961.

Williams, Glanville.  Textbook of Criminal Law, 2nd ed. London:  Stevens & Sons Ltd., 1983.

APPEAL from a judgment of the Manitoba Court of Appeal (1996), 110 Man. R. (2d) 199, 118 W.A.C. 199, 107 C.C.C. (3d) 226, 48 C.R. (4th) 256, [1996] 6 W.W.R. 577, [1996] M.J. No. 280 (QL), allowing the accused’s appeal from his conviction for fraud and ordering a new trial.  Appeal dismissed.

Gregg Lawlor, for the appellant.

Heather Leonoff, Q.C., and Timothy Killeen, for the respondent.

The judgment of Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

1                                   Cory J. -- Should the expression “beyond a reasonable doubt” be explained to a jury and, if so, in what manner?  These are the questions raised on this appeal.

I.  Factual Background

2                                   The accused, a stockbroker, was charged with one count each of fraud and one of theft, both over $1000.  It was alleged the accused defrauded his employer of a large sum of money by misrepresenting the value of a bond in his personal Canadian margin account.

3                                   The accused was tried before a judge and jury.  He was convicted of the fraud charge, but acquitted of theft.  The accused’s main ground of appeal was that the trial judge erred in instructing the jury on the meaning of the expression “proof beyond a reasonable doubt”.  The Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial:  (1996), 110 Man. R. (2d) 199, 118 W.A.C. 199, 107 C.C.C. (3d) 226, 48 C.R. (4th) 256, [1996] 6 W.W.R. 577, [1996] M.J. No. 280 (QL).

II.  The Courts Below

A.  Manitoba Court of Queen’s Bench (with a Jury)

4                                   The trial judge provided the jury with the following explanation of the expression “reasonable doubt”:

When I use the words “proof beyond a reasonable doubt”, I use those words in their ordinary, natural every day sense.  There isn’t one of you who hasn’t said, gosh I’ve got a doubt about such and so.  Perfectly every day word.  There isn’t one of you who doesn’t have a notion of reasonable.  That, too, is a perfectly ordinary concept.

. . . On your review of the evidence if you are left with a doubt as to whether the Crown has proved one of those essential elements and if that doubt is a reasonable one then the accused must be acquitted of the evidence.

On the other hand, if having reviewed all of the evidence, you are not left with a reasonable doubt as to whether any of those essential elements have been proved, in other words if you are satisfied beyond that point of reasonable doubt, the accused must be convicted.  The words “doubt” the words “reasonable” are ordinary, every day words that I am sure you understand.

5                                   Although the trial judge referred on other occasions during her charge to the requisite standard of proof “beyond a reasonable doubt”, she proffered no other explanation of its meaning.  The jury found the accused guilty of fraud and he appealed.

B.  Manitoba Court of Appeal (1996), 107 C.C.C. (3d) 226

6                                   The accused contended that the trial judge failed to properly instruct the jury on the meaning of the expression “reasonable doubt”.  Scott C.J.M., writing for the court came to two conclusions which dictated the result of the appeal.

7                                   First, he found (at p. 231) that in Canada “jurors do need assistance and guidance” in understanding what reasonable doubt means.  It is therefore an error of law for a trial judge to fail to explain this concept.

8                                   Second, Scott C.J.M. adopted the definition of “reasonable doubt” set forth by Wood J.A. in R. v. Brydon (1995), 95 C.C.C. (3d) 509 (B.C.C.A.), at p. 525:

With respect to those of a contrary view, it is difficult to think of a more accurate statement than that which defines reasonable doubt as a doubt for which one can give a reason, so long as the reason given is logically connected to the evidence.  An inability to give such a reason for the doubt one entertains is the first and most obvious indication that the doubt held may not be reasonable.

9                                   Applying these principles he held that the trial judge’s charge to the jury amounted to both a non‑direction and a misdirection.  There was non‑direction arising from the failure to define “reasonable doubt” in a meaningful way.  There was misdirection because the trial judge equated “reasonable doubt” with “an ordinary everyday phrase” when in fact it is far from a “perfectly ordinary concept” (p. 234).  Scott C.J.M. observed that the standard by which everyday decisions are typically made is “a standard of probability and, often within that, at the low end of the scale” (p. 235) and not a standard of proof “beyond a reasonable doubt”.

10                               He determined that these errors were so serious that s. 686(1) (b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46 , had no application.  He set aside the accused’s conviction and ordered a new trial.  The Crown has appealed that decision.

III.  Issues on Appeal

11                               Four issues fall to be decided on this appeal:

(1)  Must a trial judge provide the jury with an explanation of the expression “reasonable doubt”?

(2)  If so, how should this concept be explained to the jury?

(3)  Did the charge in this case amount to a misdirection on the meaning of “reasonable doubt”?

(4)  If the charge in this case was insufficient, ought this Court give effect to the curative proviso set out at s. 686(1) (b)(iii) of the Criminal Code ?

IV.  Analysis

12                               At the outset I should like to express my appreciation of the consideration given to this issue by the Honourable G. Gale, former Chief Justice of Ontario, Houlden J.A. and his committee who have worked so diligently on instructions to juries and for the extensive and helpful reasons of Wood J.A. in Brydon, supra.  Like Wood J.A. I think it would be of assistance to set out the principles for instructing juries on the duty of the Crown to prove the guilt of the accused beyond a reasonable doubt.

A.  The Fundamental Importance of Understanding the Onus Resting Upon the Crown

13                               The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to the presumption of innocence.  That jurors clearly understand the meaning of the term is of fundamental importance to our criminal justice system.  It is one of the principal safeguards which seeks to ensure that no innocent person is convicted.  The Marshall, Morin and Milgaard cases serve as a constant reminder that our system, with all its protections for the accused, can still make tragic errors.  A fair trial must be the goal of criminal justice.  There cannot be a fair trial if jurors do not clearly understand the basic and fundamentally important concept of the standard of proof that the Crown must meet in order to obtain a conviction.

14                               No matter how exemplary the directions to the jury may be in every other respect if they are wanting in this aspect 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.

(1)  Should a Trial Judge Explain “Reasonable Doubt” to the Jury?

15                               In both its written submissions and during the oral hearing of this appeal, the Crown very fairly and properly conceded that there is good authority for the proposition that Canadian juries should be given a definition of “reasonable doubt”.

16                               In some jurisdictions, most notably the United Kingdom, the position appears to be that there is no need to define “reasonable doubt” beyond telling jurors that they cannot convict unless they are “sure” that the accused is guilty.  Indeed, some very eminent jurists have espoused the view that, because the words “reasonable doubt” are readily understood by jurors, it may even be unwise to attempt a definition (Glanville Williams, Criminal Law:  The General Part (2nd ed. 1961), at p. 873; Textbook of Criminal Law (2nd ed. 1983), at p. 43;  and Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), §2497, at pp. 412‑15).

17                               However, in a recent decision, the United States Supreme Court held that the expression “reasonable doubt” should be defined:  Victor v. Nebraska, 127 L Ed 2d 583 (1994).  In her separate concurring opinion, Ginsburg J. expressed the view (at p. 603) that:

Because the trial judges in fact defined reasonable doubt in both jury charges we review, we need not decide whether the Constitution required them to do so.  Whether or not the Constitution so requires, however, the argument for defining the concept is strong.  While judges and lawyers are familiar with the reasonable doubt standard, the words “beyond a reasonable doubt” are not self‑defining for jurors.  Several studies of jury behavior have concluded that “jurors are often confused about the meaning of reasonable doubt,” when that term is left undefined. . . . Thus, even if definitions of reasonable doubt are necessarily imperfect, the alternative ‑‑ refusing to define the concept at all ‑‑ is not obviously preferable.

18                               It is as well significant that Ginsburg J. referred with approval to the Federal Judicial Centre’s suggested direction on the subject and recommended its use.

19                               The majority of the Canadian decisions have held that juries should be provided with a definition of the words “reasonable doubt”.  In R. v. Tyhurst (1992), 79 C.C.C. (3d) 238, the British Columbia Court of Appeal held, at p. 250, that:

While it is tempting to conclude that the jury must have understood what reasonable doubt means because those words were used so frequently, it must not be forgotten that the principle of reasonable doubt in criminal law imports a great deal more than a lay person might attribute to them.  This is demonstrated by the fact that juries are always given a special definition of what reasonable doubt means.  It would clearly be legal error to fail to give a jury such a definition just because the words are commonly used.

20                               This approach was unanimously approved by a five-member panel of the Ontario Court of Appeal: R. v. Jenkins (1996), 107 C.C.C. (3d) 440, at pp. 459-60. See also R. v. Hrynyk (1948), 93 C.C.C. 100 (Man. C.A.), at pp. 106‑7.

21                               Any doubt as to whether the jury must be provided with an explanation of the expression “reasonable doubt” was resolved by R. v. Brydon, [1995] 4 S.C.R. 253.  This was an appeal from the judgment of the British Columbia Court of Appeal referred to earlier.  Writing for the Court, Lamer C.J. stressed the importance of providing the jury with accurate instructions on the standard of proof.  He wrote (at para. 18):

In light of the importance of the burden of proof and reasonable doubt filter to the integrity and reliability of a verdict and to the fairness of an accused's trial and giving due weight to the reality, highlighted by Wood J.A. (at p. 10), that:

. . . the application to the evidence of the law relating to the burden of proof in a criminal case can pose great difficulty, particularly for a jury of lay people who are confronted with that task for the first, and probably the only, time in their lives.

a trial judge's instructions must be careful, lucid and scrupulously sound.

22                               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.  An explanation of the meaning of proof beyond a reasonable doubt is an essential element of the instructions that must be given to a jury.  That a definition is necessary can be readily deduced from the frequency with which juries ask for guidance with regard to its meaning.  It is therefore essential that the trial judge provide the jury with an explanation of the expression.

(2)  How Should the Expression “Reasonable Doubt” be Explained to the Jury?

(a)  What Should be Avoided?

23                               Perhaps a consideration of how to define the expression can begin by setting out common definitions which should be avoided.  For example, a reasonable doubt should not be described as an “ordinary” concept.  Jurors should not be invited to apply to the determination of guilt in a criminal trial the same standard of proof that they would apply to the decisions they are required to make in their everyday lives, or even to the most important of these decisions.  In this aspect, I agree with the comments of Scott C.J.M. set out in the judgment below (at pp. 234-35):

Reasonable doubt, no matter how elusive the concept, cannot be equated to an ordinary everyday phrase.  It is not, as we have seen, a "perfectly ordinary concept" ‑‑ far from it.  The reason for this is that the word "reasonable" can, depending on the circumstances, have two very different meanings.  The first is the meaning thoroughly canvassed by Wood J.A. in Brydon.  The other more common use is that in ordinary parlance:  we hold "reasonable" views, we have "reasonable" opinions, and we make "reasonable" prognostications.  This is the standard by which we make our everyday decisions and by which we habitually govern ourselves.  It is a standard of probability and, often within that, at the low end of the scale.  It is very different from the criminal standard of proof which requires a much higher degree of certitude to arrive at a conclusion of guilt.

To instruct the jury that reasonable doubt means nothing more than the "everyday sense" of the words is misleading and constitutes reversible error.  [Emphasis added.]

24                               Ordinarily even the most important decision of a lifetime are based upon carefully calculated risks.  They are made on the assumption that certain events will in all likelihood take place or that certain facts are in all probability true.  Yet to invite jurors to apply to a criminal trial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which the prosecution must be held.

25                               Nor is it helpful to describe proof beyond a reasonable doubt simply as proof to a “moral certainty”.  I agree with Wood J.A. in Brydon, supra, and with Proulx J.A. in R. v. Girard (1996), 109 C.C.C. (3d) 545 (Que. C.A.), at p. 554, that this expression, although at one time perhaps clear to jurors, is today neither descriptive nor helpful.  Moreover, as the United States Supreme Court recognized in Victor, supra, at pp. 596‑97, there is great strength and persuasion in the position put forward that “moral certainty” may not be equated by jurors with “evidentiary certainty”.  Thus, if the standard of proof is explained as equivalent to “moral certainty”, without more, jurors may think that they are entitled to convict if they feel “certain”, even though the Crown has failed to prove its case beyond a reasonable doubt.  In other words, different jurors may have different ideas about the level of proof required before they are “morally certain” of the accused’s guilt.  Like the United States Supreme Court, I think that this expression, although not necessarily fatal to a charge on reasonable doubt, should be avoided.

26                               Finally, qualifications of the word “doubt”, other than by way of the adjective “reasonable”, should be avoided.  For instance, instructing the jury that a “reasonable doubt” is a “haunting” doubt, a “substantial” doubt or a “serious” doubt, may have the effect of misleading the jury (Boucher v. The Queen, [1955] S.C.R. 16).  What may be considered to be “haunting”, “substantial” or “serious” is bound to vary with the background and perceptions of each individual juror.  As a result of the use of these words jurors will be likely to understand that they should apply a standard of proof that could be higher or lower than that required.  Similarly, to advise jurors that a “reasonable doubt” is a doubt which is so serious as to prevent them from eating or sleeping is manifestly misleading (Girard, supra; R. v. Bergeron (1996), 109 C.C.C. (3d) 571 (Que. C.A.), at p. 576).  These words would lead a juror to set an unacceptably high standard of certainty.

(b)  What Should be Included in the Definition?

27                               First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials:  the presumption of innocence.  The two concepts are forever as closely linked as Romeo with Juliet or Oberon with Titania and they must be presented together as a unit.  If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law.  Jurors must be reminded that the burden of proving beyond a reasonable doubt that the accused committed the crime rests with the prosecution throughout the trial and never shifts to the accused.

28                               It will be recalled that, in Brydon, Wood J.A. defined a “reasonable doubt” as “a doubt for which one can give a reason, so long as the reason given is logically connected to the evidence” (p. 525).  This was the definition adopted in the Court below.  However the idea that jurors should be instructed that a reasonable doubt is a doubt “for which one can give a reason” is not without its forceful detractors.  Indeed it was expressly rejected by the Ontario Court of Appeal in R. v. Ford (1991), 12 W.C.B. (2d) 576.  The view has been expressed that this instruction works to the detriment of the “inarticulate” juror.  In short, the fear is that a juror who has a reasonable doubt which he or she is unable to concisely articulate to fellow jurors or even to herself, may erroneously conclude that the doubt is not reasonable.  Wood J.A. dismissed this objection stating (at p. 525):

. . . I am not impressed by the notion that modern‑day jurors are likely to be lacking in intelligence or "inarticulate" in the sense, or to the degree, that they would be unable either to engage in the limited reasoning process which such an instruction demands or be afraid to speak out and express their views in that respect to their fellow jurors. . . .

However, assuming that there may be some jurors who will find it difficult to communicate their closely held personal views to their fellow jurors, either because they are generally shy or because they have difficulty expressing themselves in conversation with others, that difficulty can be overcome by an instruction cast in terms which does no more than require that they be able to give themselves a reason for the doubt they hold: . . .

29                               Nonetheless there is still another problem with this definition.  It is that certain doubts, although reasonable, are simply incapable of articulation.  For instance, there may be something about a person’s demeanor in the witness box which will lead a juror to conclude that the witness is not credible.  It may be that the juror is unable to point to the precise aspect of the witness’s demeanor which was found to be suspicious, and as a result cannot articulate either to himself or others exactly why the witness should not be believed.  A juror should not be made to feel that the overall, perhaps intangible, effect of a witness’s demeanor cannot be taken into consideration in the assessment^** of credibility.

30                               It follows that it is certainly not essential to instruct jurors that a reasonable doubt is a doubt for which a reason can be supplied.  To do so may unnecessarily complicate the task of the jury.  It will suffice to instruct the jury that a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence.

31                               It will be helpful in defining the term to explain to jurors those elements that should not be taken into consideration.  They should be instructed that a reasonable doubt cannot be based on sympathy or prejudice.  Further they should be told that a reasonable doubt must not be imaginary or frivolous.  As well they must be advised that the Crown is not required to prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved.

32                               Members of the jury panel may have heard of the “balance of probabilities” or sat on a civil case and been instructed as to the standard used in those cases.  It is important that jurors be told that they are not to apply that standard in the context of the criminal trial.  They should be told that proof establishing a probability of guilt is not sufficient to establish guilt beyond a reasonable doubt.  The instructions explaining what the standard is not will help jurors to understand what it is.

33                               In the United Kingdom juries are instructed that they may convict if they are “sure” or “certain” of the accused’s guilt.  Yet, in my view that instruction standing alone is both insufficient and potentially misleading.  Being “certain” is a conclusion which a juror may reach but, it does not indicate the route the juror should take in order to arrive at the conclusion.

34                               It is only after proper instructions have been given as to the meaning of the expression “beyond a reasonable doubt” that a jury may be advised that they can convict if they are “certain” or “sure” that the accused is guilty.

35                               In some jurisdictions, after the jury has been selected, the trial judge will provide some brief basic instructions as to the nature of a criminal trial and the fundamental principles that will be applied.  This is such a sound, sensible and salutary practice that it should be undertaken in all jurisdictions.  Obviously it will be of great assistance to jurors if, at the beginning of the trial, they are advised of the applicable basic principles.  If that procedure is followed, it would be helpful to advise the jury at this time, as well as at the conclusion of the trial, of the presumption of innocence and the burden of proof beyond a reasonable doubt which the Crown must meet.

(c)  Summary

36                               Perhaps a brief summary of what the definition should and should not contain may be helpful.  It should be explained that:

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

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

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

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

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

C     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

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

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

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

C     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;

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

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

C     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”.

38                               A charge which is consistent with the principles set out in these reasons will suffice regardless of the particular words used by the trial judge.  Nevertheless, it may, as suggested in Girard, supra, at p. 556, be useful to set out a “model charge” which could provide the necessary instructions as to the meaning of the phrase beyond a reasonable doubt.

(3)  Suggested Charge

39                               Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines:

The accused enters these proceedings presumed to be innocent.  That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.

What does the expression “beyond a reasonable doubt” mean?

The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice.  It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt.  It must not be based upon sympathy or prejudice.  Rather, it is based on reason and common sense.  It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.  In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so.  Such a standard of  proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

40                               This is not a magic incantation that needs to be repeated word for word.  It is nothing more than a suggested form that would not be faulted if it were used.  For example, in cases where a reverse onus provision must be considered, it would be helpful to bring to the attention of the jury either the evidence which might satisfy that onus or the absence of evidence applicable to it. Any form of instruction that complied with the applicable principles and avoided the pitfalls referred to would be satisfactory.

40                               Further, it is possible that an error in the instructions as to the standard of proof may not constitute a reversible error.  It was observed in R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 758, that the verdict ought not be disturbed “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”.  On the other hand, if the charge as a whole gives rise to the reasonable likelihood that the jury misapprehended the standard of proof, then as a general rule the verdict will have to be set aside and a new trial directed.

(4)  The Charge in this Case

41                               The relevant part of the trial judge’s charge was in these words:

When I use the words “proof beyond a reasonable doubt”, I use those words in their ordinary, natural every day sense.  There isn’t one of you who hasn’t said, gosh I’ve got a doubt about such and so.  Perfectly every day word.  There isn’t one of you who doesn’t have a notion of reasonable.  That, too, is a perfectly ordinary concept.

. . . On your review of the evidence if you are left with a doubt as to whether the Crown has proved one of those essential elements and if that doubt is a reasonable one then the accused must be acquitted of the evidence.

On the other hand, if having reviewed all of the evidence, you are not left with a reasonable doubt as to whether any of those essential elements have been proved, in other words if you are satisfied beyond that point of reasonable doubt, the accused must be convicted.  The words “doubt” the words “reasonable” are ordinary, every day words that I am sure you understand.

42                               Like Scott C.J.M., I am of the view that this charge was insufficient.  To begin with, the trial judge did not provide a definition of “reasonable doubt”.  This expression must be explained to the jury.  Further, the trial judge told the jurors to evaluate the concept of reasonable doubt as if these were “ordinary, every day words”.  For the reasons set out earlier, this is an unacceptable direction.  The expression “beyond a reasonable doubt” cannot be equated to the everyday use made in today’s society of the words “reasonable” and “doubt”.  Rather, in the context of a criminal trial they have a specific meaning.  Unfortunately, the trial judge failed to explain the standard of proof fully and properly to the jury.  This failure constituted an error of law in a fundamentally important aspect of this criminal trial.

43                               It is true that the charge as a whole must be considered.  Yet, the trial judge did not provide any further guidance to the jury concerning the meaning of proof beyond a reasonable doubt.  It follows that this serious error was not saved by further instructions.  This is unfortunate, since the trial judge’s charge, in all other respects, was, as Scott C.J.M. observed, “a model of clarity and conciseness” (p. 235).  Nevertheless, the error was serious and gave rise to the reasonable likelihood that the jury misapprehended the burden of proof which they were required to apply.

B.  Section 686(1) (b)(iii)

44                               The Crown contended that the proviso set out at s. 686(1) (b)(iii) of the Criminal Code  should be applied and the conviction restored on the basis that, despite the errors in the charge, “no substantial wrong or miscarriage of justice has occurred”.

45                               That position cannot be accepted.  A serious error was made on a fundamental principle of criminal law.  The correct explanation of the requisite burden of proof is essential to ensure a fair criminal trial.  To expect less is to alter one of the basic concepts of the criminal trial process.  Indeed, Lamer C.J. in Brydon, at p. 257, sagely raised the very real concern whether “s. 686(1) (b)(iii) would ever be available to cure an erroneous instruction which may have misled a jury into improperly applying the burden of proof or reasonable doubt standard”.  It cannot be said that, had the trial judge not erred, the verdict would necessarily have been the same.

V.  Disposition

46                               In the result, the appeal is dismissed and the order directing the new trial is confirmed.

The reasons of La Forest, L’Heureux-Dubé and Gonthier JJ. were delivered by

48.                     L’Heureux-Dubé J. -- I have read the reasons of Justice Cory, and agree with his approach on the question of reasonable doubt as well as the result he reaches.  I also agree, but for different reasons, that s. 686(1) (b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46 , is an inappropriate remedy in this case.

49.                     Given that we do not have the full trial record before us, and that the submissions on the “miscarriage of justice” aspect of the provision were insufficient, in my opinion, the Crown has failed to discharge its burden to satisfy the Court “that the verdict would necessarily have been the same if the error had not been made”.  See R. v. Hebert, [1996] 2 S.C.R. 272, at p. 276, citing Colpitts v. The Queen, [1965] S.C.R. 739.

50.                     I would accordingly dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant:  Manitoba Justice, Winnipeg.  

Solicitors for the respondent:  Wolch, Pinx, Tapper, Scurfield, Winnipeg.