DATE: 20021125

DOCKET: C35871

COURT OF APPEAL FOR ONTARIO

MACPHERSON, SIMMONS AND GILLESE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Joseph Wilkinson for the appellant

Respondent

• and -

PATRICK CHARLES BROWN

Kevin Wilson and Chris DeSa for the respondent

Appellant

Heard: November 19, 2002

On appeal from a conviction entered by Justice T. Dunnet sitting with a jury on April 23, 1999.

BY THE COURT:

[1] The appellant appeals against his conviction for possession of cocaine for the purpose of trafficking.

[2] On October 21, 1996, the appellant was arrested in the doorway of his girlfriend’s mother’s tenth floor apartment. The arresting officers testified that they encountered the appellant in the hallway of the tenth floor of the building. One of the officers said that he formed reasonable and probable grounds for arrest when, after calling out to the appellant, he saw the appellant flick a small whitish object about the size of a grape from his clenched fist and then run toward apartment 1022. The officers said that they ran after the appellant and tackled him just as he pushed open the door to apartment 1022. Following the appellant’s arrest, the officers found approximately 11 grams of cocaine.

[3] The position of the defence at trial was that the police officers concocted their evidence. Although the appellant did not testify, his girlfriend, and his girlfriend’s mother, both gave evidence on his behalf.

[4] The appellant’s girlfriend testified that she and the appellant were together in the living room of apartment 1022 when she heard a loud noise that sounded like the apartment door banging against the wall. The appellant went to answer the door. Moments later, the appellant’s girlfriend went to the door and saw the appellant surrounded by three men who were all over him.

[5] The appellant’s girlfriend’s mother testified that the appellant, her daughter, and their children spent the evening at her apartment. At one point, she took a shower. She saw the appellant and her daughter in the living room as she walked to her bedroom from the shower. While she was dressing, she heard a noise. When she went to the door she saw three police officers on top of the appellant.

[6] In light of the evidence, it is apparent that credibility was a crucial issue at the trial. Unfortunately, when read as a whole, in our view, the trial judge’s instructions to the jury fail to adequately convey the correct standard of proof, particularly in the context of its application to the issue of credibility.

[7] At the outset of her charge, the trial judge instructed the jury concerning the burden and standard of proof as follows:

As you heard earlier, Mr. Brown is presumed to be innocent. That presumption of innocence remains throughout the trial unless and until the Crown has proven every element of the offence beyond a reasonable doubt. This is not a charity given to the accused but an important legal principle applicable to all criminal cases.

What, then, is a reasonable doubt? A reasonable doubt is an honest and fair doubt based upon reason and common sense. A reasonable doubt is not some fanciful, imaginary doubt conjured up in the mind of a timid juror to avoid doing an unpleasant duty. Proof beyond a reasonable doubt is achieved when you feel sure of the guilt of the accused, when the totality of the evidence that you find credible convinces the mind and satisfies the conscience. Of course, in the area of human affairs, mathematical certainty is not possible nor required. From now on, when I speak of proof, it is the proof beyond a reasonable doubt.

There is no obligation on an accused to prove anything. In order to obtain a conviction, the crown must prove the case. To convict an accused, the crown must prove only the essential elements of the offence beyond a reasonable doubt.

When considering your verdict, therefore, do not test every piece of evidence to see if it has been proven beyond a reasonable doubt; rather consider all the evidence, the totality of the evidence that you find credible, and, on that basis, decide if the case has been proven. [emphasis added]

[8] At the conclusion of her charge, the trial judge said the following:

Members of the jury, I remind you that if you find that the crown has proven each essential ingredient beyond a reasonable doubt, you must return a verdict of guilty to the charge of trafficking. On the other hand, if you find that the crown has not proven each essential ingredient beyond a reasonable doubt, you must return a verdict of not guilty to the charge. Proof beyond a reasonable doubt is achieved when you feel sure of the guilt of the accused when the totality of the evidence that you find credible convinces the mind and satisfies the conscience. [emphasis added]

[9] Although this matter proceeded to trial in April 1999, the trial judge did not incorporate into her charge the instructions on reasonable doubt suggested by the Supreme Court of Canada in R. v. Lifchus (1997), 118 C.C.C. (3d) 1, nor the instructions set out in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), which emphasize that reasonable doubt applies to the issue of credibility.

[10] In R. v. Campbell (1995), 24 O.R. (3d) 537 at 543, this court emphasized that use of the W.(D.) formula is not mandatory “provided the charge when read as a whole could not have left the jury under any misapprehension as to the correct burden and standard of proof to apply”. The same point is made with respect to both Lifchus and W.(D.) in this court’s decision in R. v. Bertucci , [2002] O.J. No. 3870 concerning a post-Lifchus charge.

[11] In Campbell this court articulated the standard of proof as follows, “at the end of the trial, the only question for the trier of fact is whether or not, on the whole of the evidence, the Crown has proved its case beyond a reasonable doubt”[^1] [emphasis added].

[12] Here, the trial judge instructed the jury that “[p]roof beyond a reasonable doubt is achieved “when the totality of the evidence that you find credible convinces the mind...” [emphasis added]. While that instruction may reflect accurately the point at which proof beyond a reasonable doubt is achieved, it omits any reference to the necessity of considering the totality of the evidence, and therefore does not set out the proper standard of proof.

[13] A review of the suggested instructions set out in W.(D.) at 409 assists in illustrating this point:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

The instructions given in this case capture only the highlighted portion of the W.(D.) formula.

[14] The trial judge did not instruct the jury that the principle of reasonable doubt applies to credibility, that the evidence called on behalf of the appellant could give rise to a reasonable doubt even if not accepted, that it was unnecessary that they resolve conflicting evidence if they felt unable to do so, or that a conflict in the evidence is capable of giving rise to a reasonable doubt. In our view, there are no other instructions in the balance of the charge that assist in conveying the correct standard of proof.

[15] The trial judge’s last comment on the standard of proof in the instructions given at the outset of her charge does not assist. She said:

When considering your verdict, therefore, do not test every piece of evidence to see if it has been proven beyond a reasonable doubt; rather consider all the evidence, the totality of the evidence that you find credible, and, on that basis, decide if the case has been proven. [emphasis added]

Although the trial judge referred initially to the totality of the evidence, she qualified it immediately by referring again to “the totality of evidence that you find credible”.

[16] As we are not persuaded that this charge satisfies the test articulated in Campbell, as set out in paragraph 10 of these reasons, the appeal is allowed and a new trial is ordered. Given our conclusion on this issue, it is unnecessary that we deal with the appellant’s other grounds of appeal.

Released: November 25, 2002 “JS” “J.C. MacPherson J.A.”

“Janet Simmons J.A.”

“E.E. Gillese J.A.”

[^1]: R. v. Campbell at p. 543, citing R. v. L.(D.O.), [1993] 4 S.C.R. 419 at pp. 469-70.