DATE: 20010305
DOCKET: C24179
COURT OF APPEAL FOR ONTARIO
CATZMAN, WEILER and FELDMAN JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Anthony Moustacalis for the appellant
Respondent
Howard Leibovich
- and -
for the respondent
L. F. L. Appellant
Heard: June 15, 2000
On appeal from the conviction on April 20, 1995 by Justice H. Ward Allen, sitting with a jury, and on appeal from the sentence on June 13, 1995.
FELDMAN J.A.:
[1] The appellant appeals his conviction by a jury of indecent assault male, sexual assault and buggery. The sentence having been served, the sentence appeal was abandoned.
[2] Three issues were pursued in oral argument: (1) the trial judge erred in his charge on reasonable doubt, which did not comply with the Supreme Court of Canada decision in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320; (2) the verdict was unreasonable; and (3) the trial judge should have given a Vetrovec warning (R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811).
[3] The facts relevant to the issues on appeal are briefly stated.
[4] The complainant was 22 years old at the time of the trial. He testified that there were 10 or more occasions of sexual abuse between 1980 and 1986 when he was between 7 and 13 years old. He said that the abuse began with fondling and fellatio, and later involved anal intercourse. He first complained approximately 7 years after the last offence was alleged to have occurred.
[5] The appellant is the stepson of the complainant’s mother’s brother and is almost 10 years older than the complainant. The appellant testified and denied the allegations.
[6] The complainant was the only witness called by the Crown. There were many frailties in his evidence. His memory of the events about which he complained was not specific with respect to dates and times over the 6 year period.
[7] As a youngster, the complainant began abusing drugs at the age of 12. Sometimes he did not come home for periods of time when he was with his friend, G.G. His mother sent him to see a counselor when he was 12 because of his behaviour. He acknowledged that he had seen a psychiatrist when he was younger, but had never mentioned the sexual abuse. The complainant started living on the street at the age of 15.
[8] The complainant testified that he did not attend school after completing grade 6, and that he had a youth and adult criminal record consisting of break and enter and theft, failing to comply, being unlawfully at large and possessing break-in instruments.
[9] He testified that the reason he continued to attend the appellant’s home, where much of the abuse is alleged to have occurred, was to buy drugs from the appellant, to bring customers who wanted to buy drugs, or to get "stoned" himself. In cross-examination, the complainant acknowledged that he had not mentioned anything about drugs to the police or at the preliminary hearing, but that hereferred to drugs for the first time at trial.
[10] The complainant also acknowledged that he was arrested with G.G. during the period of the alleged abuse. At that time he indicated to the police that G.G. was the person who was abusing him.
[11] At the preliminary hearing, the complainant said that he had trouble with his bowels as a result of the anal intercourse. At trial he said that the anal intercourse made his pre-existing bowel problem worse. He acknowledged that although he had visited the doctor many times about his bowel problems, he never mentioned the anal intercourse to the doctor.
[12] The appellant testified on his own behalf. He was 31 years old at the time of the trial. He denied abusing the complainant. He said that he lived not at 801 Craven Road as the complainant had said, but at 807 Craven Road from March of 1986. It was his wife’s place. He denied dealing drugs or supplying drugs to the complainant.
[13] The appellant acknowledged a lengthy criminal record including theft, mischief, fraud, failing to comply, utter threats and assault. His record did not include any drug offences.
[14] The appellant described his relationship with the complainant. He did not know him well. He said that the complainant would come to his mother’s place on Guildwood Drive where they lived from 1970 to 1980. From then until 1986 he sawthe complainant 3 times: once when the appellant was with his wife and children at the Bay station; once when the complainant ran away with G.G., and the appellant and his father picked up the complainant from a Pizza Hut on Kingston Road and brought him home; and the third time at the appellant's father’s funeral.
[15] The appellant called one other witness in his defence, Dr. Hugh Siddal. Dr. Siddal is a general practitioner who has practised for 17 years in east end Toronto. He treated the complainant beginning in March 1990 when he was in a group home, to December 1990. One thing Dr. Siddal treated the complainant for was a condition called encopresis, a chronic condition of the colon involving diarrhea resulting from a childhood emotional problem. The doctor referred the complainant to a paediatrician at the Hospital for Sick Children, where he had already been treated in 1986. The complainant never reported any abuse, nor were there physical findings that made the doctor suspect abuse.
[16] In cross-examination the doctor was asked if unwanted anal intercourse could make the condition worse. The doctor declined to give an opinion because the question was beyond his expertise. When pressed by Crown counsel, he answered"[i]t's possible, I would imagine."
[17] In his jury charge, when the trial judge charged the jury on the application of the test from R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742 he discounted the evidence of Dr. Siddal, the only independent witness called by the appellant, as not "of great importance to your deliberations”.
THE CHARGE ON REASONABLE DOUBT
[18] The charge to the jury was given before the judgment in R. v. Lifchus. This appeal was argued on June 15, 2000 and reserved. On September 29, 2000 the Supreme Court of Canada released its decision in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 which dealt with the issue of the need for a pre-Lifchus charge to be in compliance with that case. This court then asked for written submissions on the reasonable doubt issue.
[19] On November 10, 2000 the Supreme Court of Canada released three further judgments which discussed and clarified its ruling in Starr: R. v. Beauchamp (2000), 2000 SCC 54, 149 C.C.C. (3d) 58; R. v. Russell (2000), 2000 SCC 55, 149 C.C.C. (3d) 66; and R. v. Avetysan (2000), 2000 SCC 56, 149 C.C.C. (3d) 77. This court received further submissions on the effect of these decisions on the within appeal.
[20] In Starr, Iacobucci J. on behalf of the majority, stated at para. 237 that “a court reviewing a pre-Lifchusjury charge must examine it to make sure that it was in substantial compliance with the principles set out in that case.” The relevant portion of the charge to the jury in Starr read (at para. 238):
…It is rarely possible to prove anything with absolute certainty and so the burden of proof on the Crown is only to prove the guilt of the accused beyond reasonable doubt. What, then, is proof beyond a reasonable doubt?
The words "reasonable doubt" are used in their everyday, ordinary sense and not as a legal term having some special connotation. The words have no magic meaning that is peculiar to the law. A reasonable doubt is an honest, fair doubt, based upon reason and common sense. It is a real doubt, not an imaginary or frivolous one resting on speculation or guess rather than upon the evidence you heard in this courtroom.
So you can see, the words "reasonable doubt" are ordinary words we use in our everyday language. So if you can say, I am satisfied beyond a reasonable doubt, the Crown has met the onus upon it. If you cannot say those words -- if you cannot say, I am satisfied beyond a reasonable doubt, the Crown has not met the onus on it, and the accused is entitled to have your doubt resolved in his favour.
Iacobucci J. found that this form of charge was not in substantial compliance with the principles from Lifchus and explained the deficiency in this way (para. 239):
The key difficulty with this instruction is that it was not made clear to the jury that the Crown was required to do more than prove the appellant's guilt on a balance of probabilities. The trial judge told the jury that they could convict on the basis of something less than absolute certainty of guilt, but did not explain, in essence, how much less. In addition, rather than telling the jury that the words "reasonable doubt" have a specific meaning in the legal context, the trial judge expressly instructed the jury that the words have no "special connotation" and "no magic meaning that is peculiar to the law". By asserting that absolute certainty was not required, and then linking the standard of proof to the "ordinary everyday" meaning of the words "reasonable doubt", the trial judge could easily have been understood by the jury as asserting a probability standard as the applicable standard of proof.
[21] The charge to the jury in this case suffered from the same defect. The trial judge’s charge on reasonable doubt was the following:
As well, counsel, in their addresses to you, spoke of the burden of proof. That burden lies upon the Crown, and the standard, which is proof beyond a reasonable doubt, also lies upon the Crown. As counsel stated to you in one of the addresses this morning: there is no burden upon an accused person to prove his or her innocence; there is no burden upon the accused to prove anything. The Crown must prove beyond a reasonable doubt that the accused is guilty of the offence, or in this instance, offences, with which he is charged before he can be found guilty on any particular charge.
If you have a reasonable doubt as to whether Mr. L. committed any one, or two, or three of these offences with which he is charged, it is your duty to give to him the benefit of that reasonable doubt and to find him not guilty on any charge in respect of which you find you have a reasonable doubt as to his guilt or innocence. Now, you give to those words, reasonable doubt, their ordinary and natural meaning; they are not a specific legal term having some special connotation. A reasonable doubt is an honest and fair doubt based upon reason and common sense after having considered all of the evidence as a whole, the submissions of counsel and my charge to you. A reasonable doubt is not an imaginary, or a capricious, or a frivolous doubt. A reasonable doubt cannot, and must not be based upon conjecture or speculation by you. Reasonable doubt applies only to essential as opposed to nonessential matters in the trial, and I will be dealing with the elements of the three charges in a later portion of my address to you.
Bear in mind, please, that it is rarely possible to prove anything with absolute or mathematical certainty. So the burden upon the Crown to prove guilt beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The burden on the Crown, simply put, is to prove guilt beyond a reasonable doubt, and you, as reasonable men and women, with your life's experiences, will be as well equipped as anyone to make that determination.
[22] The issue for this court when reviewing the sufficiency of the jury charge and whether it is in compliance with the principles set out in Lifchus and Starr is that “…the instructions given by the trial judge must be considered as a whole, and in the overall context of the case, to determine whether there was substantial compliance with Lifchus” (R. v. Russell, atpara. 21).
[23] As this court has recently held in R. v. Taylor (January 22, 2001) and in R. v. Kereta Thompson (February 28, 2001), the charge when read as a whole must instruct the jury that more is required than that the accused is probably guilty.
[24] In this case, the combination of telling the jury that: (1) the term “reasonable doubt” is “not a specific legal term having some special connotation” and that the words are to be given their “ordinary and natural meaning”; (2) a reasonable doubt is not a frivolous doubt; (3) the instruction that the Crown need not prove to a mathematical certainty or beyond a shadow of a doubt; and (4) the reference to the members of the jury being well-equipped to determine whether the Crown proved guilt beyond a reasonable doubt as reasonable men and women with their life experiences, would, in my view, allow this jury to believe that the standard was a probability standard.
[25] As this court stated in Taylor at para. 19 and referred to in Kereta Thompson:
In deciding whether the instructions substantially complied with the principles enunciated in Lifchus, we are, of course, guided by the analysis of a virtually identical instruction provided by the majority in Starr, supra. The language used by the trial judge cannot be meaningfully distinguished from that used in Starr. Nor are there any contextual factors present in this case which warrant a different conclusion as to the adequacy of the reasonable doubt instruction. In the words of Iacobucci J. … the trial judge’s instructions failed to “locate the reasonable doubt standard above the probability standard”. In our view, the reasonable doubt instructions implied that probability of guilt or something close to it would suffice for a conviction.
[26] This is another case, like Taylor and Kereta Thompson, where there is a reasonable likelihood that the jury may have applied the wrong standard of proof in reaching its verdict. This concern is heightened because of the nature of the evidence in this case.
[27] The evidence in this case consisted of the complainant's word against that of the appellant. The appellant attempted to establish that because he had a job at a doughnut shop during part of the time period of the complaints, it was not possible for him to have been at home when the abuse was alleged to have taken place. However, because of the imprecision of the complainant's evidence as to time, the appellant was not in a position to establish an alibi over a 6 year period. Furthermore, the complainant’s contemporaneous accusation to the police that his friend G.G. was the abuser raised a serious issue regarding the complainant's credibility on the very issue before the court.
UNREASONABLE VERDICT
[28] This is not a case where the verdict can be set aside as unreasonable. It was open to the jury to accept the evidence of the complainant, despite its frailties, if the evidence satisfied them of the guilt of the accused beyond a reasonable doubt. Because the charge on reasonable doubt was deficient, the appropriate remedy is a new trial.
VETROVEC WARNING
[29] On the issue of the failure of the trial judge to give the jury a Vetrovec warning, although in this case it was clear that there were many aspects of the complainant's evidence and of his background which raised the concern of untrustworthiness including his previous accusation of G.G., his drug use and his criminal record, as well as the passage of time since the alleged events, we cannot say that the trial judge erred by exercising his discretion not to give the warning (See: R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237). It is of course an important consideration that defence counsel neither asked for the warning, nor did he object after the charge.
RESULT
[30] Considering the charge as a whole and in the overall context of the case, the jury may well have misunderstood and therefore misapplied the required standard of proof. The appeal is therefore allowed on the ground that the charge on reasonable doubt was in error, the conviction is set aside and a new trial is ordered.
Signed: "K. Feldman J.A."
"I agree "M.A. Catzman J.A."
"I agree "K.M. Weiler" J.A."
RELEASED: MARCH 5, 2001