COURT OF APPEAL FOR ONTARIO

DATE: 20011106 DOCKET: C30217

WEILER, AUSTIN and BORINS JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Clay M. Powell, Q.C. for the Appellant

Respondent

• and -

ROGER LLOYD PILGRIM

Beverly A. Brown and Lisa Joyal for the Respondent

Appellant

Heard: May 10, 2001

On appeal from the conviction by Justice Robert Abbey with a jury dated May 23, 1997 and from sentence imposed June 23, 1997.

BORINS J.A.:

[1] The issue in this appeal is the adequacy of the trial judge’s charge to the jury on reasonable doubt in a case that was tried before the decisions of the Supreme Court of Canada in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. Although charged with first degree murder on the basis of an alleged contract killing, the appellant was convicted of second degree murder after a two month trial.

[2] There was a large body of evidence consisting of exhibits and forensic material that confirmed that the appellant had the deceased’s blood on his clothing, in his car and on his knife. The jury also had in evidence a total of five videotaped statements of the appellant to the police that were played in court during the trial, and which the Crown submits were riddled with inconsistencies. A jailhouse informant testified that the murder was a contract killing. As the jury did not convict of first degree murder, the Crown submits that it implicitly rejected the evidence of the jailhouse informant.

[3] While the appellant admitted that he was present in the area just prior to and immediately after the deceased was beaten and killed, he maintained that he left just as the fatal beating was getting underway. He claimed the fatal beating was committed by another party. There was also testimony of jailhouse informants that in large measure was consistent with the physical evidence and the statements of the appellant. The testimony of one jailhouse witness, Patrice Adams, was supported by a series of approximately 12 hours of audiotape evidence, that was reduced to a transcribed synopsis and filed in evidence. The only real issues for the jury’s consideration were: (1) the extent to which the appellant was the principal or a party to the fatal beating; and (2) whether this was a contract killing that constituted first degree murder. The appellant did not testify.

[4] As the only issue concerns the trial judge’s charge on reasonable doubt, it is appropriate that it be set out in full. However, before doing so I would observe that defence counsel raised no objection at trial to this aspect of the trial judge’s instructions which required over six hours to deliver and fills 200 pages of the trial transcript. The only objections raised by defence counsel related to the trial judge’s review of the evidence. In my view, with the exception of the impugned aspect of the charge, it represents a model charge.

[5] This is what the trial judge, Abbey J., said about reasonable doubt:

I want now, continuing with my discussion of general principles that have application in a case of this kind, to explain to you the presumption of innocence which applies in any criminal trial. Simply put, the presumption of innocence means that an accused person is presumed to be innocent until the Crown has satisfied you, beyond a reasonable doubt, of his guilt. That is a presumption which remains with the accused and for his benefit from the beginning of the case until the very end of the case. The onus or the burden of proving the guilt of an accused beyond a reasonable doubt rests always on the Crown and it never shifts. There is no burden on an accused person to prove his innocence. The Crown must prove, beyond a reasonable doubt, that the accused person is guilty of the offence with which he is charged before he can be found guilty. If you have, therefore, any reasonable doubt as to whether the accused in this case committed the offence with which he is charged and the offences that I will discuss with you, then it is your duty to give to this accused the benefit of that doubt and to find him not guilty.

You will appreciate, I know, that when we are dealing with matters of human relations, it is not always possible to prove anything to an absolute or to a mathematical certainty and that is not the obligation that rests upon the Crown. The burden upon the Crown is to prove the guilt of an accused person beyond a reasonable doubt, not beyond a shadow of a doubt. When I use the words “reasonable doubt”, I use those words in their ordinary and natural meaning and not as a legal term having any particular legal connotation. A reasonable doubt is an honest doubt, a fair doubt based upon reason, based upon common sense and the evidence. It is not imaginary, it is not frivolous and it is not a doubt that may be used by a juror in order to avoid the responsibility of making a decision in the case.

It must, as well, be a reasonable doubt in regard to an essential element of the crime and not in regard to a non-essential matter. It must not be a doubt which is born of sympathy or prejudice as I have discussed with you, against either the accused or the victim. To put the matter shortly, it must be a reasonable doubt based upon the evidence introduced in this case and neither speculative, fanciful, illusionary, imaginary or the result of sympathy or prejudice. [Emphasis added.]

[6] The appellant’s position, relying on Lifchus and Starr, is that in failing to “locate the reasonable doubt standard above the probability standard”, the trial judge’s charge constituted non-direction amounting to misdirection, thereby requiring this court to set aside his conviction and to direct a new trial. It is the respondent’s position that the trial judge’s charge on reasonable doubt, when considered in the context of judgments delivered by the Supreme Court of Canada subsequent to Lifchus and Starr, was in substantial compliance with the Lifchus model charge. The respondent submits that the charge, when read as a whole, does not give rise to a likelihood that the jury misapprehended the meaning of reasonable doubt and thereby applied an incorrect standard of proof in convicting the appellant. As I agree with the respondent’s submission, I would, therefore dismiss the appeal.

[7] Since the judgments of the Supreme Court of Canada in Lifchus and Starr there have been many judgments of this court, and other appellate courts, that have considered the adequacy of jury instructions on reasonable doubt delivered before the release of Lifchus that, for obvious reasons, did not track the model charge recommended by that case. As well, subsequent to Starr, the Supreme Court of Canada has decided five cases where a pre-Lifchus charge was challenged as giving rise to the reasonable likelihood that the jury had misapprehended the correct standard of proof: R. v. Beauchamp, 2000 SCC 54, [2000] 2 S.C.R. 720; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745; R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731; R. v. Pan; R. v. Sawyer (2001), 2001 SCC 42, 200 D.L.R. (4th) 577 (S.C.C.); R. v. Rhee, 2001 SCC 71, 2001 S.C.C. 71.

[8] With the exception of Rhee, which was released on October 19, 2001, these judgments of the Supreme Court of Canada have now informed the majority of the appellate court opinions across Canada that have reviewed pre-Lifchus instructions on reasonable doubt. In reviewing these cases, it is apparent that some appellate courts have come to different results on the adequacy of similar, or identical, instructions on reasonable doubt found in model instructions in general use before the Lifchus judgment. However, it is apparent from these authorities that there has now emerged a generally accepted standard of review that an appellate court is to apply when considering whether, in a particular case, a pre-Lifchus instruction on reasonable doubt contains misdirection or non-direction warranting a new trial.

[9] Doherty J.A. of this court has described the standard of review in his dissenting reasons in R. v. Feeley (2001), 2001 105 (ON CA), 156 C.C.C. (3d) 449 at 455-456 (Ont. C.A.):

In Lifchus, at p. 14, Cory J. was careful to stress that no one verbal formulation was required to adequately convey the meaning of reasonable doubt. Later cases have stressed that the adequacy of the reasonable doubt instruction must be determined by the overall meaning conveyed by the instruction and not by the particular words used: R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745 at 748; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at 264-65.

The task for appellate courts reviewing reasonable doubt instructions given prior to Lifchus is to determine whether those instructions are in substantial compliance with the principles set down in Lifchus: R. v. Starr, supra, at p. 269; R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731 at pp. 741-42. Substantial compliance is measured by reference to the overall effect on the instruction. As Iacobucci J. said in R. v. Russell, supra, at p. 743:

The appellate assessment of substantial compliance with the Lifchus principles in cases where the trial judge did not have the benefit of that decision, and may have used, in parts of the charge, language that will likely be discontinued in the future or omitted parts recommended in Lifchus, is not a mechanical task. Rather, it is a judgment call on whether the deficiencies in the charge fall below the Lifchus standard such as to cause serious concern about the validity of the jury’s verdict, and lead to the conclusion that the accused did not have a fair trial.

[10] In Beauchamp, speaking for the court, Iacobucci J. reiterated the standard of review at pp. 728-729:

As noted in Starr, Avetysan, and Russell, the criterion, in reviewing a trial judge’s instructions to the jury, remains one of “substantial compliance” with the principles set out in Lifchus (Starr, supra, at paras. 238 and 243). An appellate court must assess whether “the essential elements of a fair and accurate instruction on reasonable doubt are present and have been properly explained” (Starr, supra, at para. 233), such that there is no reasonable likelihood that the jury misapprehended the proper burden and standard of proof. The charge in this case was delivered prior to Lifchus. However, it was reviewed by the Quebec Court of Appeal after Lifchus.

[11] Iacobucci J. did not sit in Avetysan in which the standard of substantial compliance was stated by Major J. at pp. 752-753:

Starr, supra, stated that in considering a jury charge given prior to the release of Lifchus, the test is whether there was substantial compliance with the principles set out in that case. It is worth stressing that the principles in Lifchus are to be applied in a manner that will encourage improvements in the wording of jury charges, but do not vitiate past charges where the language used, although no longer preferred, meets the substantially correct test. A jury charge given before or after the Lifchus decision should not be faulted merely for imprecise language. Rather, as was stated in Starr, supra, it should be reviewed to determine whether it substantially complies with the Lifchus principles. As applied in Russell, supra, and Beauchamp, supra, the basic question remains: Does the charge, read as a whole, give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof? If not, the charge is adequate.

[12] In Pan, Arbour J. considered a pre-Lifchus reasonable doubt instruction in the light of Lifchus, Starr and the subsequent decisions from the Supreme Court of Canada. At p. 631 she stated:

While some of the required elements in Lifchus were omitted from Watt J.’s charge and some of the terms that should have been avoided were included, I do not think that the deficiencies are such that they “cause serious concern about the validity of the jury’s verdict, and lead to the conclusion that the accused did not have a fair trial”: Russell, supra, at para. 23. For the reasons given in the recent cases from this Court, I agree with the Court of Appeal’s conclusion that this ground of appeal should be dismissed.

[13] The jury charge in this case is also similar to that in Rhee, decided by the Supreme Court of Canada subsequent to the hearing of this appeal. As in this case, the jury charge in Rhee was delivered without the benefit of the model charge in Lifchus. In a decision reported at (2000), 2000 BCCA 162, 134 B.C.A.C. 135, a majority of the British Columbia Court of Appeal found the charge to be in substantial compliance with Lifchus. However, two judges dissented and held that the trial judge erred in instructing the jury to give the term “reasonable doubt” its plain and natural meaning, which error was compounded by the trial judge’s failure to instruct the jury that more than probable guilt was required for a conviction. Thus, the issue before the Supreme Court of Canada, like the issue in this appeal, was whether an instruction to the jury that reasonable doubt is not a legal term having some special connotation, as compounded by the failure to instruct the jury that more than probable guilt is required for a conviction, amounted to a reversible error in the circumstances of that case.

[14] Arbour J., on behalf of the majority of the court, dismissed the appeal. She was satisfied that although certain aspects of the charge were deficient in light of Lifchus, other parts of the charge dealing with credibility and circumstantial evidence served to clarify the proper definition of reasonable doubt so that there could be no reasonable concern that the jury may have convicted by applying the wrong standard of proof. Based upon her review of Lifchus and the subsequent decisions of the Supreme Court of Canada that considered reasonable doubt instruction, she defined the standard of review of pre-Lifchus charges. The following passage from the headnote of the case found at 2001 SCC 71, 2001 S.C.C. 71 accurately reflects Arbour J.’s reasons:

Appellate review of a charge to the jury is not a mechanical task, but rather an assessment of whether the deficiencies in the charge, as compared to the Lifchus standard, cause serious concern about the jury’s verdict. The key question is whether the charge, in the context of the entire trial, substantially complies with the principles expressed in Lifchus so that as a whole it does not give rise to the reasonable likelihood that the jury misunderstood the correct standard of proof. When reviewing a pre-Lifchus charge there is no particular mistake or omission that will automatically constitute a reversible error in and of itself, nor is there an additional instruction that will immediately cure a particular shortcoming. Where the majority of a charge complies with Lifchus principles, but the trial judge has omitted to expressly indicate that more than probable guilt is required, or has made that omission in conjunction with another error, such as defining reasonable doubt as having a plain and ordinary meaning, these shortcomings can be countered by other parts of the jury instructions that serve to make the proper definition of reasonable doubt more clear.

[15] On the basis of the decisions of the Supreme Court of Canada, the test of substantial compliance with the principles of Lifchus rests on whether the charge, when assessed as a whole, conveys an instruction on reasonable doubt that avoids any reasonable likelihood that the jury could have misunderstood its content. The standard of substantial compliance is not to be applied mechanically. Reversible error will not result inevitably from either the failure to include all of the elements approved by Lifchus, or the failure to exclude the elements disapproved by Lifchus.

[16] In this appeal, the only error that the appellant assigns to the trial judge’s instruction on reasonable doubt is its failure to “locate the reasonable doubt standard above the probability standard”. This was also the complaint in Beauchamp, which Iacobucci J. addressed in the passage from his reasons which I have reproduced in paragraph 10. In support of his position, counsel focused on the italicized portion of the trial judge’s charge reproduced in paragraph 5.

[17] A submission that the trial judge erred in failing to expressly compare and distinguish the criminal standard of proof from the civil standard of proof was one of the alleged errors made by the trial judge in instructing the jury on reasonable doubt in R. v. Phillips (2001), 2001 24121 (ON CA), 154 C.C.C. (3d) 345 (Ont. C.A.). In instructing the jury, the trial judge used language similar to that used by the trial judge in this case which the appellant submits constitutes misdirection. In Phillips, 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.” In Phillips, the appellants also contended that the trial judge erred in describing reasonable doubt as an “ordinary term” and not a “legal term having some special connotation”. Similar wording was used in this case, which counsel contends was disapproved in Lifchus.

[18] In Phillips, as in this appeal, defence counsel at trial raised no objection to the impugned instruction. To Moldaver J.A., who wrote the decision of the court, this indicated that counsel “were satisfied that the jury fully appreciated the high standard of proof needed to support a conviction and it serves as a yardstick against which to measure the contrary position now advanced for the first time on appeal”. (p. 359) The same can be said of the position taken at the trial by defence counsel in this case.

[19] In considering the adequacy of the trial judge’s instruction, Moldaver J.A. considered the judgments of the Supreme Court of Canada in Starr, Beauchamp, Russell and Avetysan. He went on to state at pp. 360-361:

The second concern relates to the description of reasonable doubt as an "ordinary term", not a "legal term having some special connotation". In light of Lifchus, supra, and its progeny, it is clear that this language should not have been used. It is equally clear however, that standing alone, this error could not realistically have misled the jury into applying the civil standard of proof. Rather, its impact, if any, must be assessed in context, having regard to the instruction as a whole.

That brings me to the third concern, namely, the failure on the part of the trial judge to expressly compare and distinguish the criminal standard of proof from the civil standard of proof.

Manifestly, the impugned instruction does not track the language used by Cory J., at p.13 of Lifchus, supra, to differentiate the criminal and civil standards of proof. In and of itself, however, that is not fatal. The crucial issue is whether the instruction, read as a whole, raises a reasonable likelihood that the jury misapprehended the correct standard of proof.

Measured against that yardstick, I am satisfied that the language used by the trial judge adequately distinguished the criminal standard of proof from the civil standard of proof.

Read as a whole, I am satisfied the jury would have appreciated the high standard of proof needed to support a conviction. Expressed somewhat differently, it is speculative to think that this jury would have been left with the impression that proof on a balance of probabilities or anything close to it was sufficient to justify a conviction.

[20] Reading the trial judge’s instructions as a whole and assessing the effectiveness of the instructions, rather than particular words that might have been omitted or included, I am satisfied that the trial judge conveyed to the jury that a very high standard of proof had to be achieved before they could convict the appellant.

[21] Although the trial judge in this case, like the trial judge in Phillips, should not have said that he was using the words “reasonable doubt” in “their ordinary and natural meaning and not as a legal term having any particular legal connotation”, on reading his instructions as a whole it is clear that this error, standing alone, could not realistically have misled the jury into applying the civil standard of proof. As I have observed, this lengthy 200 page charge, delivered in a case that on its evidence was relatively complex, was a model charge. The jury took their time in reaching a verdict, and from the few questions that they asked it is clear that they understood the two issues that they were required to decide.

[22] What stands out from reading the instructions is the care taken by the trial judge to make it clear to the jury that a very heavy burden rested on the Crown to prove its case beyond a reasonable doubt. Throughout his instructions, in discussing the elements of the offence, and other matters on which the Crown had the burden of proof, the trial judge consistently described the degree of proof necessary to satisfy the burden of proof as proof beyond a reasonable doubt. For example, he did so when discussing the defence of alibi at p. 1543 of the transcript, in explaining circumstantial evidence at pp. 1488-1491, in explaining the difference between murder and manslaughter at pp. 1551-1553 and p. 1641, in explaining parties to an offence at pp. 1630-1637, in outlining the available verdicts at pp. 1643-1644, in explaining the use of a verdict sheet at pp. 1664-1669, and on several other occasions. These accurate instructions on reasonable doubt as it pertains to these issues reinforced the specific charge on reasonable doubt. Counsel for the respondent stated that the trial judge used the expression “beyond a reasonable doubt” on 75 occasions throughout his charge. A good example of the trial judge’s emphasis on the burden of proof is found at p. 1561 in what he reminded the jury when they returned to court following the noon recess of the day on which he delivered his instructions:

Secondly, I would like you to bear in mind as I have now said previously also, it is the burden upon the prosecution to prove guilt beyond a reasonable doubt, not the burden of the accused to refute it. Even if you disbelieve all of the evidence in this case which may favour the accused, you must consider that which remains of the evidence, hold it up against the prosecution’s burden of proof and only find guilt upon an offence in the event that the evidence satisfies you beyond a reasonable doubt that the accused was a party to that offence.

[23] In my view, the trial judge’s instructions, when read as a whole, conveyed the core meaning of the requirement for proof beyond a reasonable doubt. It was in substantial compliance with the Lifchus principles. I am satisfied that there is no reasonable likelihood that the jury misapprehended the proper burden and standard of proof. Moreover, I have no serious concern about the validity of the jury’s verdict, with the result that I am satisfied that the appellant had a fair trial.

[24] The appellant seeks leave to appeal, and if leave is granted, appeals from his sentence of life imprisonment without eligibility for parole for 12 years. Given the paramount sentencing principles of denunciation and specific and general deterrence, as well as the aggravating circumstances surrounding the commission of the offence, I am satisfied that the trial judge did not err in extending the period of parole eligibility beyond the statutory period of 10 years.

[25] For the foregoing reasons, the appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.

Released: November 6, 2001

“S. Borins J.A.”

“I agree K. M. Weiler J.A.”

“I agree Austin J.A.”