Her Majesty the Queen v. Taylor [Indexed as: R. v. Taylor]
54 O.R. (3d) 314
[2001] O.J. No. 330
Docket No. C19267
Court of Appeal for Ontario
Doherty, Moldaver and Borins JJ.A.
January 22, 2001*
- Note: This judgment recently came to the attention of the editors.
Criminal law--Trial--Charge to jury--Reasonable doubt--Trial judge instructed jury that term "reasonable doubt" not legal term having any special connotation--Trial judge equated "reasonable doubt" with "honest doubt", "real doubt" and "fair doubt"--Trial judge's instructions failed to locate reasonable doubt standard above probability standard--Charge inadequate--Not appropriate case for application of proviso --New trial ordered.
The accused was charged with possession of stolen property. The trial judge instructed the jury on the issue of reasonable doubt in terms virtually identical to those approved by the Manitoba Court of Appeal in R. v. Starr. The trial judge stated: "When I speak of reasonable doubt, I use those words in their ordinary, natural meaning. It is not a legal term having any special connotation. A reasonable doubt is an honest doubt. It is a fair doubt and it is based upon reason and common sense. It is not an imaginary or frivolous doubt." The accused was convicted. He appealed, arguing that the trial judge's instruction on the meaning of reasonable doubt constituted misdirection, and relying on the decision of the Supreme Court of Canada in R. v. Lifchus.
Held, the appeal should be allowed.
After the accused was convicted, the Supreme Court of Canada held in Starr that the reasonable doubt instruction approved by the Manitoba Court of Appeal in that case constituted reversible error. The approach to pre-Lifchus reasonable doubt instructions described in Starr has remained constant in subsequent decisions of the Supreme Court of Canada. Those cases recognize that the determination by appellate courts of whether a particular pre-Lifchus charge substantially complies with the principles in Lifchus is essentially a judgment call to be made on a case-by-case basis. Where a provincial appellate court has properly addressed the issues relevant to a determination of whether a pre-Lifchus charge is adequate, the Supreme Court of Canada will not interfere with that assessment. In this case, the trial judge's instructions failed to locate the reasonable doubt standard above the probability level. The instructions implied that probability of guilt or something close to it would suffice for a conviction.
APPEAL from a conviction for possession of stolen property.
R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40, 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, revg (1998), 1998 CanLII 6760 (MB CA), 123 Man. R. (2d) 292, 159 W.A.C. 292, [1998] 6 W.W.R. 710, 123 C.C.C. (3d) 145 (C.A.), not folld R. v. Avetysan, 2000 SCC 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; R. v. Beauchamp, 2000 SCC 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. 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; R. v. Russell, 2000 SCC 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.)), apld Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)
Daniel Lawson, for appellant. Michael Bernstein, for respondent.
BY THE COURT:--
I
[1] The appellant was convicted by a jury of possession of stolen property and received a 90-day intermittent sentence. He appealed his conviction and sentence.
[2] The facts may be briefly stated. The appellant was found in possession of stolen furniture. The central issue at trial was whether the appellant knew that the furniture was stolen. He testified that he had purchased the furniture from a man named Simpson and did not know it was stolen. He produced a receipt to support his story.
[3] The appeal first came on for argument on October 21, 1998. Counsel for the appellant raised several grounds of appeal, including the submission that the trial judge's instruction on the meaning of reasonable doubt constituted misdirection. In making this submission, counsel relied on R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, 150 D.L.R. (4th) 733. That decision was released after the trial in this matter.
[4] At the conclusion of oral argument, we were satisfied, save for the ground of appeal alleging misdirection on the reasonable doubt standard, that none of the grounds of appeal warranted appellate intervention.
[5] The reasonable doubt instruction given in this case was virtually identical to the instruction given in R. v. Starr (1998), 1998 CanLII 6760 (MB CA), 123 C.C.C. (3d) 145, 123 Man. R. (2d) 292 (C.A.), reversed, 2000 SCC 40, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449. When this appeal was argued, R. v. Starr, supra, had been decided in the Manitoba Court of Appeal and argument was pending in the Supreme Court of Canada. The majority of the Manitoba Court of Appeal, after considering R. v. Lifchus, supra, had decided that the reasonable doubt instruction was adequate. Twaddle J.A., in dissent, also relying on Lifchus, held that the reasonable doubt instruction constituted reversible error. He also dissented on an issue concerning the admissibility of certain evidence. The dissent of Twaddle J.A. gave the accused a right of appeal to the Supreme Court of Canada.
[6] During the argument of this appeal, we were told that argument in R. v. Starr was scheduled for early December 1998. Because of the close similarity of the reasonable doubt instructions in this case and in Starr, and with the agreement of counsel, we decided to reserve judgment pending the decision of the Supreme Court of Canada in Starr. Starr was argued in the Supreme Court of Canada in December 1998 and the court reserved judgment. It subsequently ordered a rehearing which took place in February 2000. In September 2000, the court released its judgment. The five-person majority held that the reasonable doubt instruction constituted reversible error and ordered a new trial. The majority also found that certain evidence had been improperly admitted and ordered a new trial on that basis as well.
[7] After Starr was released by the Supreme Court of Canada, counsel were invited to make further submissions in this appeal. On November 10, 2000, shortly after those submissions were received, the Supreme Court of Canada released three judgments which, like Starr, considered the adequacy of pre- Lifchus reasonable doubt instructions (R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731; R. v. Beauchamp, 2000 SCC 54, [2000] 2 S.C.R. 720; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745). Counsel made further written submissions after the release of those judgments.
II
[8] The trial judge in this case defined reasonable doubt as follows:
What do we mean by reasonable doubt? While we all know that it is rarely possible to prove anything with absolute certainty and so the burden on the Crown is only to prove guilt beyond a reasonable doubt. When I speak of reasonable doubt, I use those words in their ordinary, natural meaning. It is not a legal term having any special connotation. A reasonable doubt is an honest doubt. It is a fair doubt and it is based upon reason and common sense. It is a real doubt. It is not an imaginary or frivolous doubt. So what you must ask yourself is this, has the Crown proved this case beyond a reasonable doubt. If, after you have considered all of the evidence, you have a reasonable doubt then you must acquit. However, if on all the evidence you are satisfied beyond a reasonable doubt that the accused is guilty, then you must convict the accused. It is as simple as that.
[9] This instruction tracks very closely the instruction given by the trial judge in Starr. That instruction is reproduced in the majority judgment of Iacobucci J., at p. 265 S.C.R., p. 543 C.C.C.:
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.
[10] In concluding that the instruction set out above was inadequate, Iacobucci J. observed, as Cory J. had in Lifchus, that no single verbal formulation of the meaning of the concept of reasonable doubt was to be preferred to the exclusion of all others. Iacobucci J. described the language used in Lifchus as an attempt "to improve the existing standard for instruction on reasonable doubt" (p. 265 S.C.R., p. 543 C.C.C.). He stressed that appellate courts reviewing the adequacy of pre-Lifchus reasonable doubt instructions must determine whether the formulation used by a trial judge in any particular case was in "substantial compliance" with the principles set out in Lifchus (p. 265 S.C.R., p. 543 C.C.C.).
[11] In coming to the conclusion that the trial judge's instruction was not in substantial compliance with the principles set out in Lifchus, Iacobucci J. said, at pp. 268-69 S.C.R., pp. 545-46 C.C.C.:
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 was 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. While obviously a mistake in the charge will not always be fatal, at no point did the instructions in this case cure the mistake. The fact that the trial judge repeatedly stated that the prosecution must prove guilt beyond a reasonable doubt is no cure given his failure to ever define reasonable doubt correctly. . . .
(Emphasis added)
[12] Based on the analysis set out in Starr, there would seem to be little doubt but that the instruction given in this case amounted to reversible error. The Crown submits, however, that the judgment in Starr must be read in conjunction with the subsequent judgments in Russell, Beauchamp, and Avetysan. Counsel contends that these judgments further clarified the standard to be applied to pre-Lifchus reasonable doubt instructions. The Crown relies, particularly on the decision in Russell. It contends that the instruction in that case contained many of the deficiencies identified in Lifchus, including the specific deficiency identified in Starr and yet the court held that the instruction did not constitute reversible error.
[13] In our view, the approach to pre-Lifchus reasonable doubt instructions described in Starr has remained constant in the three subsequent decisions of the Supreme Court of Canada. In those cases, the adequacy of the reasonable doubt instruction was not determined by simply comparing the language used in the impugned instructions to the language approved of or disapproved of in Lifchus. Rather, regardless of the language used, the court had to determine whether the instruction, viewed in its entirety and in the context of the trial and the issues raised at trial, substantially complied with the principles identified in R. v. Lifchus as being essential to a proper definition of the concept of reasonable doubt.
[14] Although the pronouncements in Russell, Beauchamp and Avetysan do not resile from the approach to pre-Lifchus reasonable doubt instructions set out in R. v. Starr, supra, they do signal an important development in the jurisprudence. The cases recognize that the determination by appellate courts of whether a particular pre-Lifchus charge substantially complies with the principles in Lifchus is essentially a judgment call to be made on a case-by-case basis. No bright line segregating adequate from inadequate reasonable doubt instructions can be drawn which could anticipate all possible verbal formulations used to explain reasonable doubt and take into account the various contextual considerations which are germane to the adequacy of any formulation used by a trial judge.
[15] The three recent judgments of the Supreme Court of Canada hold that where a provincial appellate court has properly addressed the issues relevant to the determination of whether a pre-Lifchus charge is adequate, the Supreme Court of Canada will not interfere with that assessment, particularly where there are no other alleged errors in the proceeding which, combined with a questionable reasonable doubt instruction, could compromise the integrity of the verdict. This approach is evident in the language of Iacobucci J. in Russell, at para. 17 [p. 740 S.C.R.]:
The question to be answered is whether the majority of the Court of Appeal erred in finding that the instructions given by the trial judge to the jury were in substantial compliance with the principles enunciated in Lifchus to alleviate concerns that the jury may have misunderstood its task. This assessment of the sufficiency of the charge is a function primarily exercised by courts of appeal and requires a detailed review of the charge as a whole in the full context of the trial, the complexity of the factual issues to be resolved, their degree of contentiousness, the nature and quality of the evidence tendered by the parties, their respective positions at trial, as well as any concerns that may have been expressed by the jury in its questions after the charge.
(Emphasis added)
[16] In concluding that he would not interfere with the determination by the majority of the Alberta Court of Appeal that the instruction was adequate, Iacobucci J. said, at para. 25 [p. 744 S.C.R.]:
Here, without minimizing the concerns expressed by Berger J.A. [the dissenting judge in the Alberta Court of Appeal], I am not persuaded that there is any reason to interfere with the majority's disposition of the appeal, particularly when it thoroughly addressed the elements of the Lifchus principles. The fact that the Court of Appeal unanimously dismissed all other grounds of appeal, and none of these other issues is before us, distinguishes this case from Starr and Avetysan. Consequently, I cannot say that the accused's trial was unfair in the sense that the integrity of the verdict was compromised.
[17] In Avetysan, Major J., for the majority, made the same point. Significantly, he made it at the very outset of his judgment. He said, at para. 2 [p. 748 S.C.R.]:
In Canada, the courts of appeal dispose of the vast majority of criminal and civil appeals. In assessing the conclusions of courts of appeal, this Court will not interfere if they have determined, following paras. 23 and 24 of R. v. Russell, [2000 SCC 55], that regardless of the language used the instructions were in substantial compliance with the existing law. Only if the Court of Appeal has departed from established principles will further review by this Court be triggered.
[18] The recent decisions of the Supreme Court of Canada do not announce any departure from the approach to be taken to the determination of the adequacy of pre-Lifchus reasonable doubt instructions. They do, however, assign the primary responsibility for the application of that approach to the provincial appellate courts. Absent some basis for concluding that a provincial appellate court misapplied the Lifchus principles, and absent other alleged errors which could undermine the integrity of the verdict, the Supreme Court of Canada will not interfere with a provincial appellate court's determination of the adequacy of a pre-Lifchus reasonable doubt instruction.
III
[19] 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 para. 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.
[20] The failure to properly define reasonable doubt is an error in law. Once an appellant demonstrates an error in law, the onus shifts to the Crown to demonstrate that the error occasioned no substantial wrong or miscarriage of justice (s. 686(1)(b)(iii) [Criminal Code, R.S.C. 1985, c. C-46]). While in theory, at least, the curative proviso can be applied to any error of law, this is certainly not a case in which the force of the Crown's case is such that the curative proviso could appropriately be applied to an error which is as fundamental as the failure to properly define reasonable doubt.
[21] We would allow the appeal and quash the conviction. The Crown is entitled to a new trial should it conclude that a new trial is warranted at this late date.
Appeal allowed.