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

56 O.R. (3d) 97

[2001] O.J. No. 3993

Docket No. C30788

Court of Appeal for Ontario

Carthy and Charron JJ.A. and McCombs J. (ad hoc)

October 15, 2001

Headnote

Criminal law -- Trial -- Charge to jury -- Reasonable doubt -- Trial judge spoke of reasonable doubt as expression used in ordinary speech and failed to distance reasonable doubt from balance of probability in charge to jury -- Defence counsel drew clear distinction between civil and criminal standards of proof in closing address -- Trial judge explicitly instructed jury to take law from him and to ignore legal principles derived from other sources -- Jury expressed impatience and exasperation with defence counsel in three notes sent to trial judge -- Assumption could not be made that jury relied on what defence counsel said about reasonable doubt -- Defence counsel's address did not cure defects in trial judge's charge.

The accused was charged with sexual assault and sexual exploitation. The trial judge's charge to the jury was delivered following the decision of the Supreme Court of Canada in R. v. Lifchus and prior to the release of that court's reasons in R. v. Starr. The trial judge stated, "When I speak of reasonable doubt, I use the words in their ordinary, natural meaning, not as a 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." In her closing address to the jury, defence counsel expanded on the meaning of reasonable doubt, drawing a clear distinction between the civil and criminal standards of proof. The accused was convicted. He appealed, arguing that the trial judge's charge to the jury on reasonable doubt was inadequate. The Crown submitted that any defect in the charge to the jury was cured by defence counsel's closing address.

Held, the appeal should be allowed.

The charge to the jury was deficient in that it failed to distance reasonable doubt from balance of probability and referred to it as an expression used in ordinary speech. Defence counsel made that distinction clear, but it could not be assumed that the jury was guided by defence counsel on such a fundamental question of law when the trial judge explicitly told the jury to "take the law as I give it to you". Moreover, it was clear from notes which the jury sent to the trial judge that the jury was impatient with defence counsel, who was prolix in the extreme. In these circumstances, there was reason to doubt that the defence closing submission on reasonable doubt impressed itself on the jury. As the burden of proof is crucial in a trial, it was appropriate that the Crown did not seek to rely upon the proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.

APPEAL from a conviction for sexual assault and sexual exploitation.

Authorities Cited

R. v. Wang (2001), 2001 20933 (ON CA), 153 C.C.C. (3d) 321 (C.A.), distd R. v. Lifchus, 1997 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. 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, apld Other cases referred to 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, revg 1999 18966 (NL CA), 174 Nfld. & P.E.I.R. 34, 533 A.P.R. 34 (Nfld. C.A.) (sub nom. R. v. Avetysan (A.)); 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. 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.)) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)

Counsel

Anil K. Kapoor, for appellant. Karen Shai, for respondent.

Judgment

The judgment of the court was delivered by

[1] CARTHY J.A.: -- The appellant was found guilty by a jury on six counts of sexual assault and one count of sexual exploitation involving two young female victims. Convictions were entered and he was sentenced to 15 months' imprisonment and three years' probation. The appeal is against the conviction and sentence.

[2] The weight of this appeal rests on the adequacy of the trial judge's charge to the jury on reasonable doubt. It is therefore unnecessary to elaborate on the facts other than to observe that the trial was almost entirely a credibility confrontation between the appellant and the young women who gave evidence that they had been assaulted.

[3] This court has had many occasions to consider the application of the reasons of Cory J. in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1 and the Supreme Court of Canada has expounded further upon those reasons in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449, R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, 149 C.C.C. (3d) 77, R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, 149 C.C.C. (3d) 66 and R. v. Beauchamp, 2000 SCC 54, [2000] 2 S.C.R. 720, 149 C.C.C. (3d) 58. In essence, these post-Lifchus authorities indicate that appellate courts should review jury charges with an eye to determining whether there has been substantial compliance with the principles delineated in Lifchus.

[4] The charge in this case was delivered on October 6, 1998, following publication of Lifchus and prior to the release of Starr. After commenting on the onus of proof resting upon the Crown, the trial judge instructed the jury on reasonable doubt in the following terms:

The Crown must prove beyond a reasonable doubt that an accused person is guilty of the offence with which he or she is charged before he or she can be convicted. If you have a reasonable doubt as to whether the accused committed any one or more of the offences with which he or she is charged, it is your duty to give that accused the benefit of the doubt and find him or her not guilty on such charge or charges. When I speak of reasonable doubt, I use the words in their ordinary natural meaning, not as a 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. It is a real doubt, not an imaginary or frivolous doubt. Reasonable doubt must not be based upon conjecture or speculation and applies only to essential as opposed to non-essential matters. I will later tell you what the essential matters are in this case.

Finally, keep in mind that it is rarely possible to prove anything with absolute or mathematical certainty. And so the burden of proof on the Crown is to prove guilt beyond a reasonable doubt.

[5] This instruction closely resembles the charge to the jury in Starr, which was found not to be in substantial accord with Lifchus. For immediate comparison I set forth the relevant part of that charge, which is quoted in Starr, supra, at pp. 265-66 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.

[6] I see no material difference between the two. Both fail to distance reasonable doubt from balance of probability and both speak of it as an expression used in ordinary speech. It is these features that rendered the charge in Starr inconsistent with Lifchus principles, and the charge on reasonable doubt in this case was similarly deficient.

[7] This does not, however, end the matter, because the Crown did not seek to convince us that the very words of the charge met the Lifchus test. Rather, the Crown argued that an overall perspective of the trial indicates that the jury would have properly understood reasonable doubt. It was submitted that even though the trial judge did not instruct the jury that they could not convict on a balance of probabilities, defence counsel made that clear to them and there was nothing in the trial judge's charge that was inconsistent with what they heard in the summing up by defence counsel. A part of the defence closing address on this subject reads:

There's no room for maybe, possibly, probably or even almost certainly. Proof beyond a reasonable doubt must be proof to a moral certainty. If you think that Maurice Labrecque is probably guilty of each charge, then you must acquit him of each charge. It must be proof beyond a reasonable doubt to a moral certainty. . . . [I]t must be proof beyond a reasonable doubt to a moral certainty. Probably -- probably guilty is not sufficient for a verdict of guilty on any charge. Moral certainty doesn't mean absolute certainty, but it is a necessity for such moral certainty that prevents a jury in a criminal trial from testing the guilt of an accused by that standard of doubt which would influence you in your daily life. In our daily lives, we constantly act on probabilities and we seldom act on moral certainty. It is rudimentary that a jury never convict if the jury simply concludes that a person is probably guilty. To convict a person on a charge, each juror must be able to say "He is really guilty, of that I am morally certain." . . . A finding of guilt is never based on speculation or suspicion or probability. . . . Each one of you separately and individually must be satisfied to the point of moral certainty . . . Each one of you is separately and individually bound in conscience to give him the benefit of any honest doubt you feel.

(Emphasis added)

[8] Defence counsel's discussion of reasonable doubt drew a clear distinction between the civil and criminal standards of proof notwithstanding the reference to "moral certainty" which was disapproved of in Lifchus. Had the trial judge used similar language, there would have been greater compliance with the Lifchus principles. However, I am hesitant in drawing an inference that a jury has been guided by defence counsel on such a fundamental question of law when the trial judge explicitly told the jury to ". . . take the law as I give it to you . . . [and] put aside any notions which you now may have as to relevant legal principles. It is your duty to be guided by my explanation of the law."

[9] The Crown relied upon this court's decision in R. v. Wang (2001), 2001 20933 (ON CA), 153 C.C.C. (3d) 321 (C.A.) where Finlayson J.A. relied in part on defence counsel's address to support a trial judge's charge as complying in substance with Lifchus. Finlayson J.A. stated, at p. 338 C.C.C.:

In any event, as the respondent Crown notes, while the trial judge did not compare and contrast the different standards in the burden of proof as between the criminal and civil contexts, defence counsel amply made this point clear.

I note that at pp. 337-38 C.C.C., Finlayson J.A. set forth an independent justification of the charge and his reference to defence counsel's address is simply an added observation. He was clearly satisfied that the charge itself conveyed the high standard of proof required to convict. I am not similarly satisfied in the present case.

[10] Moreover, in the circumstances of this case, there is reason to doubt that the defence closing submission on reasonable doubt impressed itself upon the jury. The two complainants were cross-examined over a period of five days and the trial lasted 12 days. One of the points of appeal is that the trial judge interfered with defence counsel to such an extent that the trial was rendered unfair. A review of the transcript indicates that defence counsel was prolix in the extreme and most, if not all, of the interruptions were justified. This led the jury to deliver three notes of admonition to the trial judge, a level of response that is unprecedented in my experience.

The first note reads:

Your honor,

With the greatest respect we have been listening to one witness for 4 days up to now. Could you inform us when this case might wrap up. Could you tell us how many other witnesses will be called. My concern is that this case could be going on much too long. Will the defendant take the stand.

Thank You

The second note from the jury was more impatient:

Your honor

We are now at the end of the 3rd week!!

The Defence has been on every day (11 days), the prosecution has had less than 1 day. The defence is repeating herself with the same questions to every witness. Even though it's the 11th day she is still reviewing evidence covered on the 1st day. Your honor how much do we need to know about this intersection, truck, . . . windows, distances etc., etc., etc.

We have the picture very, very clear. I believe it is unfair to be wasting unnecessary time. How did the defence calculate 1 1/2 wks for the duration of this trial??

Your honor, the jury is very tired and frustrated with this line of questioning. We would like the Defence to introduce new evidence relevant to the charges in question.

Let's wrap up this case before we fall asleep!!

Let the jury do its job.

The trial judge received a third noted from the jury:

Sir,

With respect to the court, the iteration and reiteration of questions from defence counsel to the video expert [i.e. Boris] is irritating and has little or no relevance to this trial. We seem to have taken an hour to confirm data which the jury can understand in a minute.

[11] These three communications indicate that the members of the jury were exasperated by the delays caused by defence counsel. Given this outspoken reaction from the jury, it is hardly arguable that defence counsel's words as to the burden of proof would cast a shadow on the charge by the trial judge. When coupled with the trial judge's direction to ignore legal principles derived from other sources, these expressions of frustration suggest that it would be dangerous to assume that the jury accepted much of what it was told about reasonable doubt from defence counsel.

[12] The Crown quite rightly did not rely on the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. The burden of proof lies at the heart of the case and a failure to accurately communicate its meaning renders the trial unfair.

[13] There were other grounds of appeal but none that are likely to arise at a new trial and, therefore, it is unnecessary to deal with them. The appeal should be allowed, the conviction and sentence set aside and a new trial directed.

Appeal allowed.