COURT OF APPEAL FOR ONTARIO

DATE: 20001019

DOCKET: C32294

RE: HER MAJESTY THE QUEEN (Respondent)

v. B.P. (Appellant)

BEFORE: WEILER, ROSENBERG and SHARPE JJ.A.

COUNSEL: Bernard Cugelman,

for the appellant

Desmond McGarry,

for the respondent

HEARD: October 3, 2000

On appeal from his conviction by Mr. Justice Paul G. M. Hermiston, sitting with a jury, on September 18, 1998

ENDORSEMENT

[1] While the appellant raised a number of grounds of appeal, we find it necessary only to deal with two:

(1) the charge to the jury on the application of the standard of reasonable doubt; and

(2) the trial judge’s refusal to entertain the application for admission of Children and Family Services records of a meeting in the autumn of 1981.

Reasonable doubt

[2] The appellant was charged with eleven counts alleging sexual offences in relation to four different complainants. The charge to the jury with respect to each count followed a similar pattern. The trial judge read out the charge and if necessary set out the definition of the offence. He then referred to the central allegation with respect to the particular count and related it to the standard of proof beyond a reasonable doubt. The following instruction, which was given in relation to count #3, is an example:

Again, members of the Jury, if you are satisfied, or have no reasonable doubt that the accused fondled K.N. by touching her breasts and vagina when she was nine years old and in Grade 3, in his bedroom as she has testified, all within the times as set out in the indictment then you will convict and find him guilty as charged. If you are satisfied or have no reasonable doubt that the accused entered K.’s vagina with his fingers, as she described, you will find the accused guilty as charged. On the other hand, if you are not satisfied that the accused man touched K.’s breasts and vagina and, or entered her vagina with his fingers or you have a reasonable doubt that the accused committed these acts, you will find the accused man not guilty on Count #3. [Emphasis added.]

[3] In our view, this instruction, which was repeated in much the same terms for each count in the indictment, was at least confusing, suggesting as it did that the Crown could meet its burden of proof either by proof beyond a reasonable doubt or by some other standard to the jury’s satisfaction. This ambiguity might have been cleared up had the trial judge used language, often found in the charge to the jury, in which the trial judge tells the jury that any reference to the Crown proving some element of the offence should be understood as requiring proof beyond a reasonable doubt. Unfortunately that was not done in this case. The trial judge did provide the jury with a proper instruction on reasonable doubt, but not until near the very end of his charge, and not in relation to the elements of the offences. In our view, this did not cure the deficient instruction repeated some eleven times with specific reference to the elements of each offence.

[4] It is not inevitable that an error with respect to the burden of proof will require the setting aside of the conviction. Cory J. held as follows in R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) at 14:

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 93 (SCC), [1991] 1 S.C.R. 742 at p. 758, 63 C.C.C. (3d) 397, 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.

[5] In our view, there is a reasonable likelihood that the jury misapprehended the standard of proof and accordingly the convictions cannot stand. As Cory J. said in Lifchus at p. 16, the proviso in s. 686(1)(b)(iii) of the Criminal Code cannot be applied where a serious error has been made on a fundamental principle of criminal law and, “[t]he correct explanation of the requisite burden of proof is essential to ensure a fair criminal trial”.

The Children and Family Services Records

[6] The appellant was 70 years of age, hard of hearing, and had poor eyesight. He did not have counsel at trial. The offences for the most part involved allegations dating back to the 1970’s and 1980’s. The most serious allegations concerned his stepdaughter, S. The appellant wished to obtain records from Children and Family Services of a meeting in the autumn of 1981 apparently involving S., the appellant, his wife (S.’s mother) and officials of the foster or group home where S. was staying. It seems that the appellant believed these records would show that S. had been asked about sexual abuse and had denied it. Crown counsel was of the view that the appellant was required to comply with the provisions of s. 278.2 of the Criminal Code.

[7] Some time prior to trial, the appellant’s wife had obtained a subpoena from the registrar’s office which she had personally served on a secretary (not the record keeper) at the Children and Family Services office. There was no compliance with the notice provisions of s. 278.2 and the subpoena itself was not properly served in accordance with ss. 509 and 699 of the Criminal Code. In particular, the subpoena was not signed by a judge as required by s. 699(5.1), if the records were governed by the provisions of ss. 278.1 to 278.91. The trial judge held that since the subpoena was invalid and was not served on the proper person, he would not consider any application for production of the records. In our view, the trial judge erred in the manner in which he dealt with the appellant’s attempt to obtain the records.

[8] First, it is not entirely clear that those records fell within the definition of personal information records in s. 278.1 of the Criminal Code. If the appellant and his wife were present for the meeting it may have been open to the appellant to argue that the records did not contain “personal information for which there is a reasonable expectation of privacy”. More importantly, we are of the view that the trial judge failed in his obligation to provide reasonable assistance to an unrepresented accused. As this court held in R. v. McGibbon (1988), 1988 149 (ON CA), 45 C.C.C. (3d) 334 at 347:

Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must of necessity be a matter of discretion.

[9] There is no doubt that the appellant was an extremely difficult person. He had made comments during the trial that displayed a lack of regard for the justice system. We have considerable sympathy for the trial judge who was faced with conducting this difficult trial. Nevertheless, the trial judge should not have refused to entertain the application without giving the appellant some assistance, even if that meant a short adjournment of the trial so that a valid subpoena could be obtained and served and the necessary parties given proper notice. As a result of the trial judge’s insistence on strict adherence to the Criminal Code provisions the applicant was prevented from presenting a part of his defence.

[10] In light of our conclusion on these two grounds of appeal it is unnecessary to consider the other grounds of appeal from conviction or the sentence appeal. Accordingly the appeal from conviction is allowed, the convictions set aside, the conditional stays set aside, and a new trial ordered.

(signed) “ K. W. Weiler J.A.”

(signed) “M. Rosenberg J.A.”

(signed) “Robert J. Sharpe J.A.”