COURT OF APPEAL FOR ONTARIO

DATE: 20000214

DOCKET: C26793

McMURTRY C.J.O., MOLDAVER and GOUDGE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

and

KULAVEERASINGAM KARTHIRESU

Appellant

James Lockyer and Mara Green
for the appellant

Jamie Klukach
for the respondent

Heard: February 3 and 4, 2000

On appeal from conviction by Then J. with a jury dated
November 25, 1995

BY THE COURT:

[1] The appellant appeals against his conviction for second degree murder. Crown counsel fairly concedes, and we agree, that the conviction cannot stand and a new trial must be ordered.

[2] The incident giving rise to the charge occurred on May 2, 1993, when Sivapiragasam Namasivayam was shot and killed following a night of drinking and fighting with a number of individuals, including the appellant and his friend Jeyaseelan Thuraisingham, at a house party on Bridletown Circle in Scarborough. The position of the Crown was that the appellant was the shooter. The defence on the other hand, maintained that Thuraisingham was responsible for the killing. While both sides led evidence in support of their respective positions, it is fair to say that on balance, the weight of the evidence favoured the appellant’s position. Perhaps that explains why the jury deliberated for the better part of seven days before rendering its verdict.

[3] On the fourth day of deliberations, the jury asked for clarification of the definition of reasonable doubt. The learned trial judge responded in part as follows:

Now, what is meant by proof beyond a reasonable doubt?
A reasonable doubt is exactly what it says, a doubt
based on reason, on the logical processes of the mind.
It is not a fanciful or speculative doubt, nor is it a
doubt based upon sympathy or prejudice. It is the sort
of doubt which, if you ask yourself, “Why do I doubt?”
you can assign a logical reason by way of an answer.
…
The doubt, I emphasize, must be reasonable. It must be
a reasonable doubt based upon the evidence in this case
that you have you heard. It must not be a speculative,
fanciful, imaginary or illusionary doubt conjured up in
the mind of a timid juror so that he or she may avoid
their plain duties or responsibilities. [Emphasis added.]

[4] In oral argument, Crown counsel fairly conceded that the emphasized portion of the re-instruction constituted reversible error. A long and unbroken line of authority from this court supports that concession: See R. v. Ford (1991), 12 W.C.B. (2d) 576; R. v. Jenkins (1996), 1996 2065 (ON CA), 107 C.C.C. (3d) 440; R. v. Matta, [1996] O.J. no. 3252 and R. v. Collings (1998), 129 C.C.C. (2d) 218.

[5] While it post-dated the trial in this case, R. v. Jenkins was the unanimous judgment of a five judge panel of this court. The following excerpt at p. 469 of that case explains why it is wrong to put jurors in the position of having to be able to articulate a logical response to the question “why do I doubt?”:

This court has held that reasonable doubt should not be
defined as “a doubt for which, if asked, one could give
a reason”: R. v. Ford (1991), 12 W.C.B. (2d) 576. This
court is of the view that such an instruction tends to
shift the burden of proof to the accused. It directs
jurors to subject any doubt they may have to further
evaluation and yet it does not contain any standards
for determining what kind of reason may suffice. Most
important, jurors may have a reasonable doubt but not
be able to articulate a reason.

[6] As was pointed out in Collings, supra, R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) neither overrules nor even disapproves this jurisprudence. Indeed, speaking for the court in Lifchus, Cory J. expressed an additional concern about defining reasonable doubt in this way. At p. 11 he said this:

[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
demeanour 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 demeanour 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 demeanour
cannot be taken into consideration is the assessment of
credibility.

[7] In this case, the error of requiring a juror to be able to articulate a logical reason for his or her doubt was exacerbated by the reference to the concept of the timid juror that followed it in the passage quoted above.

[8] While we leave for a future case the question whether, standing on its own, reference to the timid juror would constitute reversible error, there is no doubt that this practice is fraught with risk and ought to be avoided. It appears nowhere in the model language set out in R. v. Lifchus, supra. Moreover, it can be argued that it may carry the implication that jurors who acquit are timid and may be avoiding their responsibilities, while courageous jurors convict.

[9] In the context of the primary error in this charge, there may also be an added risk that a conscientious juror who harbours a reasonable doubt that he or she is simply incapable of articulating may be encouraged to reject that doubt as speculative or imaginary for fear of being viewed by other members of the jury as a timid juror. Hence, the reference to the concept of a timid juror in this charge may have exacerbated the impact of the error that we have found to necessitate a new trial.

[10] The appeal from conviction is allowed and a new trial is ordered.

“R. McMurtry CJO”

“M. Moldaver J.A.”

“S. Goudge J.A.”

Released: February 14, 2000