Her Majesty the Queen v. Feeley [Indexed as: R. v. Feeley]
55 O.R. (3d) 481
[2001] O.J. No. 3359
Docket No. C32988
Court of Appeal for Ontario
Doherty, Austin and MacPherson JJ.A.
August 24, 2001
Criminal law -- Trial -- Charge to jury -- Reasonable doubt -- Trial judge misdirected jury in telling them that reasonable doubt had ordinary natural meaning and no special connotation -- Trial judge failed to instruct jury that proof beyond reasonable doubt requires more than proof of probable guilt -- Charge predated decision of Supreme Court of Canada in R. v. Lifchus -- Charge substantially complied with Lifchus -- Trial judge linked reasonable doubt and presumption of innocence -- Jury must have understood that they were required to acquit accused if they had doubt as to whether Crown had negated defence of self-defence -- Accused's appeal from conviction for second-degree murder dismissed.
The accused was convicted of second-degree murder. In charging the jury on reasonable doubt, the trial judge stated that he used those words "in their ordinary natural meaning and not as a legal term having some special connotation". He stated that a reasonable doubt is an honest and fair doubt based upon reason and common sense, that it is a real doubt and not an imaginary or frivolous doubt which might be conceived by a juror to avoid that juror's plain duty. That charge was delivered more than two years before the Supreme Court of Canada released its judgment in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 150 D.L.R. (4th) 733, in which it dealt with what juries should and should not be told about the meaning of proof beyond a reasonable doubt. The accused appealed, submitting that the charge on reasonable doubt in this case contained the kind of errors identified in Lifchus.
Held, the appeal should be dismissed.
Per MacPherson J.A. (Austin J.A. concurring): The trial judge misdirected the jury when he told them that reasonable doubt had an ordinary natural meaning and no special connotation. Moreover, he failed to instruct the jury that proof beyond a reasonable doubt requires more than proof of probable guilt. However, the question was whether his instructions were in substantial compliance with the principles set down in Lifchus. Substantial compliance is measured by reference to the overall effect of the instruction. The presence of one or more Lifchus errors in a pre-Lifchus jury charge is not necessarily fatal. In this case, the trial judge, in a well-organized and well- worded charge, clearly linked reasonable doubt and the presumption of innocence. His discussion of the relevant legal principles, especially self-defence, on which the accused relied, was sound. The jury must have understood that if, after consideration of all the evidence and particularly, after the evid ence of the accused, they had a doubt as to whether the Crown had negated the defence of self-defence, they were required to acquit the accused.
Per Doherty J.A. (dissenting): The trial judge's misdirection (reasonable doubt has an ordinary meaning) and non-direction (failure to instruct the jury that probable guilt was not enough), considered in combination and in the context of the totality of the instruction, gave rise to a reasonable likelihood that the jury misunderstood the meaning of proof beyond a reasonable doubt. As a result, there was serious concern as to whether the accused received a fair trial.
APPEALfrom a conviction for second-degree murder.
R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. Pan, 2001 SCC 42, 2001 S.C.C. 42, affg (1999), 1999 3720 (ON CA), 44 O.R. 415, 62 C.R.R. (2d) 189, 134 C.C.C. (3d) 1, 26 C.R. (5th) 87 (C.A.), consd Other cases considered R. v. Avetysan, 2000 SCC 56, 2000 S.C.C. 56, [2000] 2 S.C.R. 745, 195 Nfld. & P.E.I.R. 338, 192 D.L.R. (4th) 596, 262 N.R. 96, 586 A.P.R. 338, 149 C.C.C. (3d) 77, 38 C.R. (5th) 26 (sub nom. R. v. Avetysan (A.)); R. v. J. (P.S.), [2001] O.J. No. 1890 (C.A.); R. v. Karthiresu (2000), 2000 6008 (ON CA), 129 O.A.C. 291 (C.A.); R. v. L. (F.L.) (2001), 2001 24053 (ON CA), 153 C.C.C. (3d) 146 (Ont. C.A.); R. v. Phillips (2001), 2001 24121 (ON CA), 154 C.C.C. (3d) 345 (Ont. C.A.); R. v. Russell, 2000 SCC 55, 2000 S.C.C. 55, [2000] 2 S.C.R. 731, 192 D.L.R. (4th) 585, 261 N.R. 339, [2001] 2 W.W.R. 407, 149 C.C.C. (3d) 66, 38 C.R. (5th) 1 (sub nom. R. v. Russell (M.E.)); R. v. Scott (2001), 2001 24184 (ON CA), 153 C.C.C. (3d) 87 (Ont. C.A.); R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. Tavenor, 2001 24139 (ON CA), [2001] O.J. No. 207 (C.A.); R. v. Taylor (2001), 2001 24190 (ON CA), 154 C.C.C. (3d) 273 (Ont. C.A.); R. v. Thompson (2001), 2001 24187 (ON CA), 152 C.C.C. (3d) 527 (Ont. C.A.); R. v. Tombran (2000), 2000 2688 (ON CA), 47 O.R. (3d) 182, 142 C.C.C. (3d) 380, 31 C.R. (5th) 349 (C.A.); R. v. Wells, 2001 24130 (ON CA), [2001] O.J. No. 81 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 34(1), (2) Rules and regulations referred to Criminal Appeal Rules, SI/93-169
Robert William Feeley, appearing in person. Todd Ducharme, appearing as Duty Counsel. Robert Hubbard, for respondent.
Reasons of MacPherson J.A.
1MACPHERSON J.A. (AUSTIN J.A. concurring): -- I have had the advantage of reading the draft reasons prepared by my colleague, Doherty J.A., in this appeal. With respect and regret, I do not agree with his proposed disposition of the appeal.
2There is much in my colleague's reasons with which I agree. I begin by stating in point form the areas of agreement so that I can use them as the departure point for a brief articulation of the basis for my disagreement with my colleague's ultimate conclusion.
3First, I agree that the only live issue on this appeal is the component of the trial judge's charge relating to reasonable doubt.
4Second, I agree with my colleague's summary of the leading cases relating to reasonable doubt, notably R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 150 D.L.R. (4th) 733, R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 190 D.L.R. (4th) 591, R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, 192 D.L.R. (4th) 585, and R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, 192 D.L.R. (4th) 596.
5Third, I agree that the task for this court in reviewing the trial judge's charge on reasonable doubt in a pre-Lifchus case "is to determine whether those instructions are in substantial compliance with the principles set down in Lifchus".
6Fourth, I agree that substantial compliance "is measured by reference to the overall effect of the instruction". It is important to consider the component of the jury charge relating to reasonable doubt in the context of the trial judge's entire charge.
7Fifth, I agree with the two defects in the jury charge identified by my colleague:
First, he misdirected the jury when he told them that reasonable doubt had "an ordinary natural meaning" and no "special connotation". Second, the trial judge failed to instruct the jury that proof beyond a reasonable doubt requires more than proof of probable guilt.
8Sixth, the presence of one or more Lifchus errors in a pre-Lifchus jury charge is not necessarily fatal. The important question is whether there has been substantial compliance with the principles set down in Lifchus.
9Seventh, I agree that a useful departure point for assessing the reasonable doubt component of the jury charge in this case is the most recent decision of the Supreme Court of Canada in this domain, R. v. Pan, 2001 SCC 42, 2001 S.C.C. 42, in which a unanimous court approved the trial judge's jury charge.
10Against this background of areas of agreement, I can briefly state my reasons for disagreeing with my colleague's proposed disposition of the appeal, namely to allow it and order a new trial. Essentially, I disagree for three reasons.
11First, if Pan is the yardstick (and I am prepared to accept that it is) then there are fewer Lifchus problems in the charge relating to reasonable doubt in this case than in Pan. In both cases, the two errors identified by my colleague were made. However, in Pan the trial judge defined reasonable doubt in terms of moral certainty, which Lifchus cautioned against. The trial judge in the present appeal did not commit this error.
12In a related vein, the jury charge in Pan contained this admonition: "It must not be a speculative, fanciful, imaginary or illusory doubt conjured up in the mind of a timid juror so that he or she may avoid their plain duty or responsibility." In R. v. Karthiresu (2000), 2000 6008 (ON CA), 129 O.A.C. 291, a decision rendered several years after the trial in Pan, this court disapproved of this instruction, saying that "it was fraught with risk and ought to be avoided . . . it may carry the implication that jurors who acquit are timid and may be avoiding their responsibilities, while courageous jurors convict" (at para. 8). The trial judge in the present appeal did not employ the "timid juror" language in his charge.
13Second, in Lifchus, Cory J. spoke in strong terms about the linkage between reasonable doubt and the presumption of innocence (at p. 332 S.C.R.):
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 . . . [T]hey must be presented together as a unit.
(Emphasis added)
14The trial judge in the present appeal did precisely that -- and on two occasions. His instruction in this regard -- and it was delivered in 1994, long before Lifchus -- is a model of clear and strong linkage between these two fundamental concepts of criminal law.
15Third, and most importantly, in my view, the trial judge's overall charge in this case was, in a word, excellent. As my colleague notes, this was not a complex case; it was a single issue case -- did the Crown prove that the appellant did not act in self-defence? The trial judge delivered a well- organized and well-worded charge. He expressed matters in plain English. His review of the evidence was clear and fair. In particular, his presentation of the defence case was meticulous. His discussion of the relevant legal principles, especially self-defence, was sound; indeed experienced defence counsel made no objection to any of the legal principles discussed by the trial judge. In this context, I am satisfied that the jury must have understood that if, after consideration of all the evidence, and particularly the appellant's evidence, they had a doubt as to whether the Crown had negated the defence of self-defence, they were required to acquit the appellant.
16For these reasons, I cannot conclude that, in the language of Russell and Pan, the accused did not have a fair trial; nor do I have a serious concern about the validity of the jury's verdict.
Sentence Appeal
17Mr. Feeley also appeals his sentence. In reviewing the fitness of that sentence, I have considered the additional material provided to us by Mr. Feeley. I cannot say that the trial judge erred in principle in extending the parole ineligibility period to 13-1/2 years.
18I would dismiss the appeal from conviction and sentence.
Dissenting Reasons of Doherty J.A.
19DOHERTY J.A. (dissenting): -- The appellant was convicted of second-degree murder and sentenced to life imprisonment without eligibility for parole for 13-1/2 years. He was sentenced over six years ago and launched this appeal from conviction and sentence in February 1996. It would appear that he was refused Legal Aid for the appeal and was unable to retain counsel. The appeal proceeded under the rules governing inmate appeals: Criminal Appeal Rules, SI/93-169. Under those rules, the appeal record does not include a transcript of the evidence from the trial. It does, however, include the trial judge's instructions to the jury.
20At trial, the appellant admitted that he shot and killed the deceased, a long-time acquaintance. He and the deceased had argued before the shooting and the appellant claimed that he acted in self-defence. The trial judge left self-defence as defined in s. 34(1) and s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46 with the jury. He also instructed the jury on the partial defence of provocation. The jury deliberated for about 5-1/2 hours before returning a verdict of guilty of second- degree murder.
21The appellant filed written material outlining his grounds of appeal. He also provided the court with various letters and other documentation, much of which was relevant only to his sentence appeal. The grounds of appeal advanced in writing by the appellant referable to the charge to the jury are without merit. Other grounds set out by the appellant, such as ineffective representation by counsel and improper contact among witnesses, have not been substantiated by him.
22During oral argument, the appellant was assisted by Mr. Ducharme who served as duty counsel at this sitting of the inmate appeals. Mr. Ducharme made submissions alleging three deficiencies in the charge to the jury. I need consider only one of those submissions.
The Jury Charge on Reasonable Doubt
23The trial judge instructed the jury in December 1994. He explained reasonable doubt in these terms:
It's rarely possible to prove anything with absolute certainty. So the burden of proof on the crown is only to prove guilty beyond reasonable doubt. When I speak of reasonable doubt I use the words in their ordinary natural meaning not as a legal term having some special connotation. A reasonable doubt is an honest and a fair doubt based upon reason and common sense. It's a real doubt not an imaginary or frivolous doubt which might be conceived by a juror to avoid that juror's plain duty.
The standard of proof beyond reasonable doubt does not apply to the individual items of evidence which make up the Crown case but to the total body of evidence upon which the Crown relies to prove the guilt of the accused.
(Emphasis added)
24The trial judge repeated this direction at the end of his comprehensive instructions to the jury.
25In September 1997, about 2-1/2 years after this trial was completed, the Supreme Court of Canada released its judgment in R. v. Lifchus, supra. In Lifchus, the court, speaking through Cory J., dealt at length with what juries should and should not be told about the meaning of proof beyond a reasonable doubt. Cory J. identified certain words and phrases which were best avoided when defining reasonable doubt and provided a comprehensive model instruction.
26The instruction set down in Lifchus effectively communicates to juries the meaning and significance of the reasonable doubt standard. Lifchus has, however, given rise to unavoidable difficulties when appellate courts are required to consider the adequacy of reasonable doubt instructions given prior to Lifchus. Not surprisingly, those instructions do not track the model charge. Most contain some of the elements of the model charge, usually in combination with words and phrases which, after Lifchus, are best avoided.
27In Lifchus, at pp. 336-37 S.C.R., p. 14 C.C.C., Cory J. was careful to stress that no one verbal formulation was required to adequately convey the meaning of reasonable doubt. Later cases have stressed that the adequacy of the reasonable doubt instruction must be determined by the overall meaning conveyed by the instruction and not by the particular words used: R. v. Avetysan, supra, at p. 748 S.C.R.; R. v. Starr, supra, at pp. 264-65 S.C.R.
28The task for appellate courts reviewing reasonable doubt instructions given prior to Lifchus is to determine whether those instructions are in substantial compliance with the principles set down in Lifchus: R. v. Starr, supra, at p. 269 S.C.R.; R. v. Russell, supra, at pp. 741-42 S.C.R. Substantial compliance is measured by reference to the overall effect of the instruction. As Iacobucci J. said in R. v. Russell, supra, at p. 743 S.C.R.:
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.
29The testing of pre-Lifchus reasonable doubt instructions against the substantial compliance standard has spawned an ever-growing line of authority that is most notable for the subtlety of the distinctions drawn among various jury instructions which appear very similar. This case now joins that line.
30Relying on the principles set down in Lifchus, as explained in R. v. Starr, supra, Mr. Ducharme submits that the trial judge's instruction on reasonable doubt reveals two errors. First, he misdirected the jury when he told them that reasonable doubt had "an ordinary natural meaning" and no "special connotation". Second, the trial judge failed to instruct the jury that proof beyond a reasonable doubt requires more than proof of probable guilt. Mr. Ducharme submits that although the jury was told that proof to a certainty was not required, they were left to their own devices to decide how far below absolute certainty they should set the reasonable doubt bar. I agree with Mr. Ducharme that the trial judge made both of the errors alleged. I do not understand the Crown to suggest otherwise.
31Mr. Ducharme goes on to argue that the misdirection (reasonable doubt has an ordinary meaning) combined with the non-direction (failure to instruct the jury that probable guilt was not enough) gives rise to the reasonable likelihood that the jury misapprehended the requisite standard of proof and necessitates a new trial.
32The misdirection and non-direction relied on by Mr. Ducharme appear in combination in many of the post-Lifchus decisions. In several cases, the combination considered in the context of the entire charge has been held to amount to reversible error: R. v. Starr, supra; R. v. Avetysan, supra; R. v. Thompson (2001), 2001 24187 (ON CA), 152 C.C.C. (3d) 527 (Ont. C.A.); R. v. Taylor (2001), 2001 24190 (ON CA), 154 C.C.C. (3d) 273 (Ont. C.A.); R. v. L. (F.L.) (2001), 2001 24053 (ON CA), 153 C.C.C. (3d) 146 (Ont. C.A.). The reasonable doubt instructions given in these cases are very similar to the instruction given in this case.
33In several other cases, the same two defects have been found, upon a review of the entire charge, not to constitute reversible error. In these cases the courts have found that other language used to explain reasonable doubt effectively overcomes the risk that the non-direction and misdirection denied the accused a fair trial: R. v. Russell, supra; R. v. Tombran (2000), 2000 2688 (ON CA), 47 O.R. (3d) 182, 142 C.C.C. (3d) 380 (C.A.); R. v. Phillips (2001), 2001 24121 (ON CA), 154 C.C.C. (3d) 345 (Ont. C.A.); R. v. Scott (2001), 2001 24184 (ON CA), 153 C.C.C. (3d) 87 (Ont. C.A.); R. v. J. (P.S.), [2001] O.J. No. 1890 (C.A.); R. v. Wells, 2001 24130 (ON CA), [2001] O.J. No. 81 (C.A.), leave to appeal to S.C.C. requested 6 July 2001; R. v. Tavenor, 2001 24139 (ON CA), [2001] O.J. No. 207 (C.A.); R. v. Pan (1999), 1999 3720 (ON CA), 44 O.R. (3d) 415 at pp. 486-89, 134 C.C.C. (3d) 1 at pp. 79-82, affd 2001 SCC 42.
34In R. v. Pan, supra, the most recent decision of the Supreme Court of Canada in which the adequacy of a pre-Lifchus reasonable doubt instruction was considered, the trial judge provided the following reasonable doubt instruction:
What is meant by "proof beyond a reasonable doubt"? It has been said, members of the jury, that the term explains itself. It is achieved when you, as jurors, feel sure of the guilt of the accused. It is that degree of proof which convinces the mind and satisfies the conscience so you, as conscientious jurors, feel bound or compelled to act upon it. You must be able to say to yourself"He is really guilty. Of that I am morally certain." I said morally certain, not mathematically certain, for it is not the obligation of the prosecution in this or any criminal case to prove guilt to a mathematical certainty.
On the other hand, should the evidence which you have heard leave you, as a responsible juror, with some lingering or nagging doubt with respect to the proof of some essential element of the offence with which the accused is charged or any offence which is included in it, so that you are unable to say to yourself that the Crown has proven the guilt of the accused in respect of that offence beyond a reasonable doubt, as I have defined those words, your duty is then to find the accused not guilty in respect of the offence about which you have such reasonable doubt.
The doubt, members of the jury, I emphasize, must be reasonable. It must be a reasonable doubt based upon the evidence that you have heard in this case. It must not be a speculative, fanciful, imaginary or illusory doubt conjured up in the mind of a timid juror so that he or she may avoid their plain duty or responsibility. It must be, as well, with regard to an essential element of the crime, not in respect of some unessential matter. It must not be a doubt born of sympathy for or of prejudice against either the accused or the deceased. To put the matter shortly, it must be reasonable doubt founded upon the evidence adduced, neither speculative, fanciful, illusory, imaginary, born of sympathy, nor animated by prejudice.
35The reasonable doubt instruction in Pan contained the non-direction complained of in this case. The trial judge did not tell the jury that proof beyond a reasonable doubt required more than proof of probable guilt. The instruction in Pan also used words that strongly suggested the misdirection complained of in this case. The trial judge in Pan told the jury that "[i]t has been said . . . that the term explains itself". These words clearly imply that the term has no special legal meaning. In addition, some of the words and phrases used in Pan are among those disapproved of in R. v. Lifchus, supra, (e.g. "morally certain").
36Despite these errors, this court unanimously held that the reasonable doubt instruction in Pan was adequate. In dismissing the appeal from that decision, Arbour J., speaking for a unanimous Supreme Court of Canada, said at para. 128:
In reviewing Watt J.'s charge on the meaning of reasonable doubt, the Court of Appeal noted that the trial took place prior to this Court's judgment in Lifchus, supra, and, as a result, Watt J. did not have the benefit of Cory J.'s discussion concerning the elements that should be included and those that should be avoided in explaining reasonable doubt to the jury. For its part, the Court of Appeal did not have the benefit of this Court's reasons in the recent cases of Starr, supra, Beauchamp [2000 SCC 54, [2000] 2 S.C.R. 720, 192 D.L.R. (4th) 577]; Russell, supra, and Avetysan, supra, concerning the application of the Lifchus principles to cases decided prior to Lifchus. While some of the required elements in Lifchus were omitted from Watt J.'s charge and some of the terms that should have been avoided were included, I do not think that the deficiencies are such that they "cause serious concern about the v alidity of the jury's verdict, and lead to the conclusion that the accused did not have a fair trial": Russell, supra, at para. 23. For the reasons given in the recent cases from this Court, I agree with the Court of Appeal's conclusion that this ground of appeal should be dismissed.
(Emphasis added)
37Unlike many of the decisions that preceded Pan, Arbour J. did not undertake a microscopic word-by-word comparison of the language used in the impugned charge with the words described as either appropriate or inappropriate in Lifchus, supra. Instead, Arbour J. fixed on the effect of the totality of the reasonable doubt instruction on the validity of the verdict and the fairness of the process. I will do the same.
38This was essentially a single issue case -- did the Crown prove that the appellant did not kill in self-defence? [See Note 1 at end of document] The evidence supporting the self-defence claim came exclusively from the appellant. Even on his evidence, the defence was problematic. I think that at best from the defence perspective, the evidence could have left the jury with a reasonable doubt. It was essential to the conduct of a fair trial that the jury understand the meaning of reasonable doubt and the burden of proof that it imposed on the Crown.
39The trial judge explained reasonable doubt in five sentences. For convenience, I will repeat the relevant part of his instruction:
It's rarely possible to prove anything with absolute certainty. So the burden of proof on the crown is only to prove guilty beyond reasonable doubt. When I speak of reasonable doubt I use the words in their ordinary natural meaning not as a legal term having some special connotation. A reasonable doubt is an honest and a fair doubt based upon reason and common sense. It's a real doubt not an imaginary or frivolous doubt which might be conceived by a juror to avoid that juror's plain duty.
40The first two sentences caution against placing the reasonable doubt bar too high by distinguishing between absolute certainty and the Crown's burden which is "only" to prove guilt beyond a reasonable doubt. The third sentence erroneously invites jurors to apply the standard of decision- making used in their day-to-day lives. The fourth sentence is an appropriate instruction and would assist the jury in understanding the meaning of reasonable doubt. The final sentence in the instruction is a warning against the misuse of the reasonable doubt standard in favour of the accused and did not assist in understanding the term.
41Considering the instruction in its entirety and its overall tenor as opposed to the individual words used by the trial judge, I do not think it provides adequate insight into the high degree of proof needed to satisfy the reasonable doubt standard. Unlike the instruction in Pan, which despite its shortcomings, stressed the heavy burden on the Crown and the correspondingly low level of uncertainty required to leave a reasonable doubt, this instruction was inadequate and misleading. The misdirection and non-direction identified by Mr. Ducharme, considered in combination and in the context of the totality of the instruction, does give rise to the reasonable likelihood that the jury misunderstood the meaning of proof beyond a reasonable doubt. There must, therefore, be serious concern as to whether the accused received a fair trial.
The Curative Proviso
42In resisting the appeal, Mr. Hubbard advanced an argument which I would describe as a submission that any error in the instruction as to reasonable doubt occasioned no substantial wrong or miscarriage of justice. Mr. Hubbard argued that even on the appellant's version of events, the claim of self-defence was farfetched to say the least. Mr. Hubbard also observed that the appellant did not rely on the defence of provocation at trial.
43While, at least theoretically, the curative proviso can be applied to any error of law including one as fundamental as a misdirection on the meaning of reasonable doubt, the importance of the reasonable doubt standard in the criminal law makes it very difficult, if not impossible, for the Crown to demonstrate that a failure to properly define the standard of proof occasioned no substantial wrong or miscarriage of justice: R. v. Lifchus, supra, at pp. 339-40 S.C.R., p. 16 C.C.C.; R. v. Taylor, supra, at p. 280 C.C.C. Furthermore, the analysis of the adequacy of pre-Lifchus instructions followed in Pan, supra, and R. v. Russell, supra, imports curative proviso considerations into the determination of whether the instruction was so flawed as to necessitate the quashing of a conviction.
44Even if a separate curative proviso analysis is appropriate, the Crown cannot meet the heavy burden imposed by that analysis here. The transcript of the evidence is not available. The trial judge's review of the evidence was detailed and no doubt accurate, but it does not provide a satisfactory basis upon which to evaluate the evidence to the degree necessary to conclude that the Crown's case was as overwhelming as Mr. Hubbard suggests.
45The defence of self-defence was available on the evidence. Mr. Hubbard does not suggest otherwise. The appellant was entitled to have that defence, as weak as it may have been, considered in the light of a proper instruction on the meaning of reasonable doubt.
46I would allow the appeal, quash the conviction and direct a new trial.
47The court is indebted to the very helpful submissions made on behalf of the appellant by Mr. Ducharme. He and his colleagues, who serve as duty counsel on the inmate appeals, spend a considerable amount of time assisting the inmates and preparing legal submissions. They do so without compensation. Duty counsel's assistance on these appeals is a credit to them and to their profession, and renders a valuable service to the administration of justice.
Appeal dismissed.
Notes
Note 1: Although the trial judge put provocation to the jury, the defence did not rely on provocation. While the evidence warranted putting provocation to the jury, it was very much a secondary issue.
