DATE: 20010202
DOCKET: C28031
COURT OF APPEAL FOR ONTARIO
MORDEN, AUSTIN and GOUDGE JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Daniel Lawson, for the appellant
Respondent
- and -
Rick Visca, for the respondent
HAZEL SCOTT
Appellant
Heard: June 1, 2000
On appeal from a conviction by Justice Ronald Thomas, sitting with a jury, dated December 6, 1996.
BY THE COURT:
[1] This appeal by Hazel Scott is from convictions for (1) importing into Canada cannabis (marijuana), (2) importing into Canada cannabis (resin) and (3), in connection with the duties of her office, committing a breach of trust contrary to s. 122 of the Criminal Code.
[2] On December 9, 1996 she was sentenced to four years in prison on the first count, four years concurrent on the second count, and four years consecutive on the third count. The appeal is from conviction only as the sentence has been served.
[3] The sole issue on the appeal is the correctness of the trial judge’s instruction to the jury on the meaning of reasonable doubt in light of the judgment of the Supreme Court of Canada in R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1.
[4] The charge to the jury was given before the judgment in Lifchus was given. The appeal was heard on June 1, 2000 and the decision of the court was reserved to await the judgment of the Supreme Court of Canada in R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449. This judgment was given on September 29, 2000. Following this, the court asked for, and received from counsel, written submissions on the bearing of R. v. Starr on the issues in this appeal.
[5] On November 10, 2000 the Supreme Court of Canada released three further judgments concerned with jury instructions on the meaning of reasonable doubt: 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. At the court’s request, counsel made further written submissions to the court on the bearing of these judgments on the present case. We are grateful to both counsel for their thorough and helpful submissions throughout the presentation of this appeal.
[6] The facts, based substantially on a summary in the appellant’s factum, may be briefly stated. The appellant was a senior airport customs inspector employed by Canada Customs at the time in question. She escorted two persons who had large suitcases filled with 200 pounds of marijuana and 15 pounds of hash oil through customs bypassing the ordinary landing procedure. They had just arrived on an Air Canada flight from Jamaica. The two persons she escorted, both of whom testified against her, had been convicted of importing the drugs in question before the appellant’s trial was held. Some of the customs employees who testified against the appellant were challenged on their motive to provide the information that they did, largely because of their employment relationship with her. She testified at trial. The credibility of the Crown’s case in its entirety was directly challenged. In fact, there was a hung jury at the first trial in this matter.
[7] We turn to the trial judge’s charge on reasonable doubt. After clearly linking the requirement of proof beyond a reasonable doubt to the concept of the presumption of innocence and describing the burden of proof beyond a reasonable doubt, the trial judge said:
When I speak of “reasonable doubt” I use the words in their ordinary natural meaning. A reasonable doubt is an honest and fair doubt based upon reason and common sense. It is a real doubt, not an imaginary or frivolous doubt. Proof beyond a reasonable doubt is that degree of proof which convinces the mind and satisfies the conscience so that you, as conscientious jurors, feel bound and compelled to act upon it. Proof beyond a reasonable doubt has been achieved when you feel sure of the guilt of an accused person. Each of you will ask yourself: Am I sure of the guilt of the accused? Am I satisfied beyond a reasonable doubt? If the evidence which you have heard leaves you, as a responsible juror, with some lingering or nagging doubt with respect to the proof of some essential element of the offence or offences with which the accused is charged, so that you are not able to say to yourself that the Crown has proven the guilt of the accused in respect of such offence beyond a reasonable doubt, your duty is then to find the accused not guilty.
[8] Later in the charge, the trial judge dealt with what is known as the co-conspirators’ exception to the hearsay rule. On this he said:
The Crown, in this particular case, has alleged a joint venture, common design. You will examine the evidence in this case in a three stage inquiry. First of all you will ask yourself, on all the evidence are you satisfied beyond a reasonable doubt that the common enterprise or joint venture alleged by the prosecution actually existed?
If you are satisfied beyond a reasonable doubt that the common enterprise or joint venture, as alleged, existed, you must review the evidence and decide whether on the basis of evidence directly receivable and admissible against Hazel Scott, a probability has been raised that she was a member of the common enterprise. If so, you are entitled to consider evidence of acts and declarations performed and made by other members of the joint venture or common enterprise, in furtherance of the object of the common enterprise or joint venture, as evidence against the accused Hazel Scott on the issue of her guilt.
Now, I am going to go over that. You look at all of the evidence and ask yourself, each one of you:
Am I satisfied beyond a reasonable doubt that the common enterprise or joint venture, alleged by the prosecution, actually existed?
If you are satisfied beyond a reasonable doubt that the common enterprise or joint venture, as alleged by the prosecution, actually existed, you must review the evidence and decide whether, on the basis of evidence directly receivable and admissible against the accused woman, a probability has been raised that she was a member of the common enterprise.
…. All of that evidence you can use to determine if a probability has been raised that she was a member of the common enterprise. And that, of course, is if you accept that evidence.
If you were to find beyond a reasonable doubt that a joint venture existed, and that she was probably a member of the common enterprise, you are entitled to consider the evidence of the acts and declarations or words spoken, performed and made by other members of the joint or common enterprise, in furtherance of the object of the common enterprise or joint venture, as evidence against the accused woman on the issue of her guilt. It is only after you are satisfied beyond a reasonable doubt on the whole of the evidence on both the issues of the existence of the common enterprise and the accused’s membership in it that you may convict. [Emphasis added.]
[9] The basic issue is whether the instruction given by the trial judge was in substantial compliance with the principles set forth in R. v. Lifchus, supra and R. v. Starr, supra. In accordance with R. v. Russell, supra, in para. 21 “… 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 a substantial compliance with Lifchus”. The ultimate test is that as stated in Lifchus at paragraph 41: “[I]f 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”.
[10] We are satisfied that the charge in this case, considered as a whole, and in the overall context of the case, does not give rise to the reasonable likelihood that the jury misapprehended the standard of proof. In coming to this conclusion, we are significantly influenced by the substantial similarity between the instruction in this case and that in R. v. Russell, supra, the adequacy of which was approved by the Alberta Court of Appeal, (1998), 1998 ABCA 184, 219 A.R. 19. The Supreme Court of Canada dismissed the appeal from this decision.
[11] We set forth the impugned negative features of the instruction in Russell followed by the corresponding parts, if any, of the instruction in this case:
(1) In Russell: “I use the words [reasonable doubt] in their ordinary sense and not as a legal term having some special meaning”. In this case: “When I speak of ‘reasonable doubt’ I use the words in their ordinary natural meaning”.
(2) In Russell: the use of the words ‘honest’, ‘fair’ and ‘real’ to describe the concept of reasonable doubt. In this case: “a reasonable doubt is an honest and fair doubt…”.
(3) In Russell: “A reasonable doubt is the sort of doubt for which you can give a logical and rational explanation, if you are asked to do so by a fellow juror in your jury room”. In the present case there is no counterpart to this instruction which was held in Lifchus, in paragraph 30, to be “certainly not essential”.
(4) In Russell: “It is that degree of proof which permits you, as a conscientious juror, to say ‘I am sure’”. “It is that degree of proof which convinces the mind and satisfies the conscience”. In this case: “Proof beyond a reasonable doubt is that degree of proof which convinces the mind and satisfies the conscience so that you as conscientious jurors, feel bound and compelled to act upon it. Proof beyond a reasonable doubt has been achieved when you feel sure of the guilt of an accused person”.
(5) In Russell there was an absence of an explanation of the difference between the proof required in a civil case (balance of probabilities) and that required in a criminal case. There was also an absence of this explanation in the instruction in the present case.
[12] The instructions in the present case contain a statement falling within the approved category in Lifchus that was not present in Russell: “[a] reasonable doubt is … based upon reason and common sense. It is real doubt, not an imaginary or frivolous doubt.”
[13] The charge in the present case also contained the adjectives “lingering” and “nagging” applied to doubt, in the final sentence of the portion of the charge set forth above. According to Lifchus, adjectives such as these should not be used in a charge on reasonable doubt but, in accordance with the reasoning in Lifchus on this point, the likely effect of the use was more harmful to the respondent.
[14] None of the features in the charge in Russell resulted in the Alberta Court of Appeal or the Supreme Court of Canada holding it to be an unsatisfactory instruction overall and, for substantially the reasons given in that case, we have come to the same conclusion.
[15] Having regard to what is said in R. v. Lifchus and R. v. Starr, it may be thought that the most potentially serious defect in the charge in this case is the absence of an express statement to the effect that more is required than proof that the accused is probably guilty. We address this concern now.
[16] On this particular question, the Supreme Court of Canada in Russell said in paragraph 21:
In the present case, as in others in the past, the trial judge’s instructions to the jury did not communicate the requisite standard of proof to the letter of Lifchus. Specifically, the jury was not told that the standard was not one of absolute certainty, and was not told that more was required than the probability of guilt. Yet, while the omission of an explanation that clarifies the requisite standard of proof in a criminal trial constitutes a defect, on its own, it will not necessarily cause a jury charge to fail. As was stated in Avetysan at para. 11, the absence of one of the required ingredients of Lifchus, or the inclusion of one of the inappropriate elements, “will not usually be determinative of the validity of the charge as a whole.” Rather, 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.
[17] In the present case, unlike Starr, but like Russell, the jury was not told that the standard was not one of absolute certainty. This absence of an expression of the upper bracket makes it less likely that the jury, in this case, could have understood that the test was one of balance of probabilities. In Starr, Iacobucci J. said in paragraph 239:
…[b]y asserting that absolute certainty was not required, and then linking the standard of proof to the ‘ordinary everyday’ meaning of 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. [Emphasis added.]
As indicated, this case is free of this defect.
[18] We refer, also, in the present case, to the instructions set forth above relating, for the most part, to the application of the co-conspirators’ exception to the hearsay rule. Although, obviously, the purpose of these instructions was not to elucidate the distinction between proof beyond a reasonable doubt and proof on a balance of probabilities, in our view, by reason of their juxtaposition, they would have had the effect of informing the jury that these two bases of proof are different and that proof beyond a reasonable doubt, the one that the jury was to apply in determining the guilt of the accused, was a more exacting standard than balance of probabilities.
[19] We do not think that the final sentence in these instructions equates proof beyond a reasonable doubt with proof on a balance of probabilities. It is true that the sentence appears in the same paragraph in the transcript with the charge on the co-conspirators’ exception to the hearsay rule. Its wording, however, makes it clear that it is concerned not with the co-conspirators’ exception but with proof of guilt “on the whole of the evidence”. This sentence, repeated as a separate paragraph near the end of the charge, would not lead the jury to treat the two standards of proof as the same.
[20] For these reasons we dismiss this appeal.
“J.W. Morden J.A.”
“A. Austin J.A.”
“S.T. Goudge J.A.”
RELEASED: February 2, 2001