Her Majesty the Queen v. Thompson [Indexed as: R. v. Thompson]

52 O.R. (3d) 641

[2001] O.J. No. 661

Docket No. C28216

Court of Appeal for Ontario

Morden, Austin and Goudge JJ.A.

February 28, 2001

Criminal law--Trial--Charge to jury--Reasonable doubt--Charge to jury given before decision in Lifchus--Instructions not advising jury that more required than proof that accused was probably guilty--Charge stating that "reasonable doubt" to be applied using ordinary meaning with no special legal connotation--Appellate court to determine if reasonable likelihood that jury misapprehended standard of proof--Charge deficient--Appeal from conviction allowed and new trial ordered.

The accused was convicted of importing a narcotic. She appealed, arguing that the trial judge's instruction to the jury on the meaning of reasonable doubt was deficient given its failure to comply with sample jury instructions later articulated by the Supreme Court of Canada in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, 150 D.L.R. (4th) 733 and subsequent decisions.

Held, the appeal should be allowed.

Per Morden and Goudge JJ.A.: The jury was instructed before the Supreme Court of Canada's decision in Lifchus. When deciding if a particular charge to the jury substantially complies with the principles articulated in Lifchus, an appellate court must determine if, when the charge is viewed as a whole, there was a reasonable likelihood that the jury misapprehended the standard of proof. The trial judge's instructions to the jury did not contain a statement, or even a suggestion, that more was required than proof that the accused was probably guilty. This deficiency was not necessarily fatal in itself, but its absence was combined with instructions that the words "reasonable doubt" were to be understood "in their ordinary natural meaning not as a legal term having some special connotation" and that there was an upper bracket of absolute or mathematical certainty. This combination led to the reasonable interpretation that the jury was not told that probability was not enough but was implicitly told that probability of guilt, or something close to it, would be sufficient. The charge was deficient.

Per Austin J.A. (concurring): The result reached by the majority was concurred on the ground that it was dictated by the decisions of the Supreme Court of Canada in R. v. Starr and R. v. Taylor.

APPEAL from a conviction for importing a narcotic.

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. Taylor, January 22, 2001, Doc. No. C19267 (Ont. C.A.), apld R. v. Lifchus, 1997 CanLII 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, consd Cases referred to 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. Beauchamp, 2000 SCC 54, 2000 S.C.C. 54, [2000] 2 S.C.R. 720, 192 D.L.R. (4th) 577, 262 N.R. 119, 149 C.C.C. (3d) 58, 38 C.R. (5th) 11; 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.))

Anthony Moustacalis, for appellant. Rick Visca, for respondent.

[1] MORDEN and GOUDGE JJ.A.:--Kereta Thompson appeals from her conviction imposed by Justice T.P. O'Connor, sitting with a jury, of importing a narcotic, Cannabis (marihuana), contrary to s. 5(1) of the Narcotic Control Act [repealed S.C. 1996, c. 19, s. 94]. Alternatively, she also appeals from the sentence of one year's imprisonment and probation of one year.

[2] The grounds of appeal from conviction are: (1) the trial judge's instruction to the jury on the meaning of reasonable doubt was deficient having regard to the judgment of the Supreme Court of Canada in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1; and (2), the trial judge erred in his instructions to the jury on the evidence relating to the post-offence conduct of the appellant to prove her guilt.

[3] For the purpose of considering the issues raised on this appeal, a brief statement of the evidence will be sufficient.

[4] The appellant arrived at Toronto airport on February 27, 1996 and, because she had indicated on her customs declaration that she had "plant cuttings, grapevines, vegetables, fruits, seeds, nuts, bulbs, roots and soil", she was referred for a secondary search for agricultural inspection in the secondary customs area. Soon after, she was interviewed by a customs inspector. She told him that she was arriving from Jamaica alone with her child. Later, when uncovering coconuts, the customs inspector asked her if she was in possession of all her luggage and if she had packed her luggage. She replied "Yes". When [the customs inspector] asked her where she had purchased the coconuts, she replied "At the country".

[5] The customs inspector also searched her duffle bag and discovered various fruits and vegetables, including onions, fruits and six coconuts. The coconuts were individually placed in clear plastic bags, as were each of the other fruits and vegetables. [A] coconut felt heavy, although when shaken it felt like there was water inside. The customs officer had [the] coconut x-rayed and then smashed it open and discovered marihuana.

[6] The customs officer made several observations of the appellant's demeanour. He testified that her hands were shaking visibly while handing over the documents and at that time she avoided eye contact. She also shifted from side to side.

[7] He noticed a twitch in her eye when he discovered the coconuts and told her that she would have to open them. When the coconut was broken in her presence and marihuana was revealed, she apparently took one step back and "maybe" had a frown.

[8] The arresting officer had indicated that after she had spoken to a lawyer, she said: "I really did not know what was in the coconuts. He asked me to bring up some coconuts for somebody, but I know that you don't believe me, so I'll wait to talk to a lawyer." She was upset and crying when she made the statement.

[9] The amount of the marihuana was 2.9 kilograms and its estimated street value ranged from $29,440 to $60,000.

[10] We turn now to the grounds of appeal.

(1) The Instruction of the Trial Judge on the Meaning of Reasonable Doubt.

[11] The charge to the jury was given before the judgment of the Supreme Court of Canada in R. v. Lifchus, supra. 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 SCC 40, [2000] 2 S.C.R. 144, 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 its bearing on issues in this appeal.

[12] On November 10, 2000, the Supreme Court released three further judgments on jury charges on the meaning of reasonable doubt: R. v. Beauchamp, 2000 SCC 54, [2000] 2 S.C.R. 720, 149 C.C.C. (3d) 58; R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, 149 C.C.C. (3d) 66 and R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, 149 C.C.C. (3d) 77. At the court's request, counsel made further written submissions on the bearing of these judgments on the case before us. We are grateful to both counsel for their thorough and helpful submissions throughout the presentation of this appeal.

[13] The trial judge, in accordance with Lifchus, instructed the jury on the link between the presumption of innocence and the duty of the Crown to prove guilt beyond a reasonable doubt. (The trial judge said "assumed innocent" instead of "presumed innocent".)

[14] On the meaning of reasonable doubt, he said:

When I speak of reasonable doubt I use the words in their ordinary natural meaning not as a legal term having some special connotation. Reasonable doubt, as I have said previously, is essentially self-defining. Thus reasonable doubt is a honest and fair doubt based upon common sense after having considered all the evidence as a whole. It is a real doubt, not an imaginary or frivolous doubt born out of sympathy or prejudice. Reasonable doubt may arise from the evidence tendered at the trial, particularly from a conflict in that evidence, or it may arise from a lack of evidence presented at the trial. However, reasonable doubt must not be based upon conjecture or speculation. It applies only to essential matters, as I have said. Individual items of evidence need not be proven beyond a reasonable doubt. Reasonable doubt may arise because you are unable to determine the credibility or reliability of particular witnesses in relation to essential matters. Finally, keep in mind it is rarely possible to prove anything with absolute or mathematical certainty. The burden on the Crown is to prove guilt beyond a reasonable doubt, not beyond a shadow of a doubt. The Crown is not compelled to prove guilt to the possible degree of proof to a certainty.

[15] The trial judge gave virtually the same definition to the jury in the course of his opening comments before any evidence was called.

[16] 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, at 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 stated in Lifchus at para. 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."

[17] In our respectful view, the charge considered as a whole in the overall context of the case does give rise to the reasonable likelihood that the jury misapprehended the requisite standard of proof. We acknowledge, at the outset, that the instructions do contain several of the explanations which Lifchus and Starr said should be included in a charge on reasonable doubt. We need not review them specifically. We note, however, that the instructions do not include a statement, or anything remotely suggesting, that more is required than proof that the accused is probably guilty. We appreciate that this deficiency, in itself, is not necessarily fatal (R. v. Russell, supra), but its absence is combined with instructions, contrary to Lifchus, that the words "reasonable doubt" are to be understood "in their ordinary natural meaning not as a legal term having some special connotation" and that there is an upper bracket of absolute or mathematical certainty. This combination leads to the reasonable interpretation that the jury was not told that probability is not enough but was implicitly told that probability of guilt, or something close to it, would be sufficient.

[18] Our decision must be guided by the analysis of a similar instruction by the majority of the Supreme Court of Canada in R. v. Starr, supra, and by this court in R. v. Taylor (January 22, 2001), Doc. No. C19267 (Ont. C.A.). It may be that the instructions in Starr and Taylor were more offensive to the principles of Lifchus than those in the present case. In those two cases the instructions on the upper bracket, "absolute certainty", immediately preceded a definition of reasonable doubt cast in terms of "ordinary natural meaning" whereas, in the present case, the "absolute or mathematical certainty" part of the charge followed several sentences after the "ordinary meaning" part. We do not, however, think that this is a material distinction. The effect is the same, particularly in light of the emphasis on the upper bracket in three consecutive sentences.

[19] The relevant passages in Starr, supra, [at pp. 266-68 S.C.R.] are:

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.

In the appellant's case, with respect, the trial judge did not give instructions that could be construed as having located the reasonable doubt standard above the probability standard. Not only was the jury not told that something more than probability was required in order to convict, but nearly all of the instructions they were given (i.e., less than absolute certainty required, ordinary everyday words, no special meaning, more than a frivolous doubt required) weakened the content of the reasonable doubt standard in such a manner as to suggest that probability was indeed the requisite standard of proof. In this regard, the reasonable doubt instruction in the appellant's case cannot be meaningfully distinguished from the impugned instructions in Lifchus and Bisson. The reasonable likelihood that the jury applied the wrong standard of proof raises a realistic possibility that the appellant's convictions constitute a miscarriage of justice.

[20] Each of the four instructions (less than absolute certainty required, ordinary everyday words, no special meaning, more than frivolous doubt required) are present in the charge in the present case. We think, as clearly the majority in the Supreme Court did, that each instruction is suggestive, in different ways, of a probability standard.

[21] This was the view of this court in R. v. Taylor, supra. The following statement in para. 19 of the reasons in that case is equally applicable to the one before us:

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. quoted above in paragraph 12, 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.

[22] Cases which are like in all material respects should receive like treatment.

(2) The Instructions Relating to the Appellant's Post-Offence Conduct.

[23] We do not think that there is any substance in this ground of appeal. The trial judge gave a balanced charge on the use to which the jury could put this evidence, carefully reviewing the Crown and defence positions on its potential effect.

Disposition

[24] For the foregoing reasons, the appeal is allowed, the conviction is set aside, and a new trial is ordered.

[25] AUSTIN J.A. (concurring):--I agree with the result reached by the majority but prefer to base my decision simply on the ground that it is dictated by the decisions in Starr and Taylor, supra.

Appeal allowed.