WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486. (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.

(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b) justice system participants who are involved in the proceedings are protected.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

Court of Appeal for Ontario

CITATION: R. v. J.S., 2012 ONCA 271

DATE: 20120426

DOCKET: C52031

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J. S.

Appellant

Julie Santarossa and Brian Snell, for the appellant

Susan Ficek, for the respondent

Heard and released orally: April 4, 2012

On appeal from the conviction entered on June 19, 2009 by Justice Terrence A. Platana of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] A jury found the appellant guilty of a single count of sexual assault. He appeals his conviction on two grounds. We would give effect to neither.

The First Ground: The Instructions on Reasonable Doubt

[2] The first ground of appeal alleges error in the trial judge’s instructions on reasonable doubt. To be more specific, the appellant says that, towards the conclusion of his final instructions, the trial judge combined an improper definition of reasonable doubt with a reference to a “timid” juror and to “morality-laden” language frequently criticized by appellate courts.

[3] The instructions to which objection is taken were given towards the end of the charge, the trial judge said:

Let me repeat what I said to you earlier about reasonable doubt. If you feel sure of the guilt of the accused, if it satisfies your mind and satisfies your conscience as a juror, then you can act upon that aspect of reasonable doubt. It has to be based on the evidence and not something that you simply conjure up because you are too timid to make a decision in this case and it has to be of course in relation to one of the essential elements.

[4] Short-form instructions on the standard of proof are, at best, problematic, all the more so when given at or near the conclusion of a jury charge. If a trial judge considers it appropriate to return to the subjects of the onus and standard of proof, and the meaning to be assigned to the phrase “proof beyond a reasonable doubt” as final instructions draw to their close, those instructions ought follow the Lifchus[^1] model, not some incomplete paraphrase of it.

[5] Despite the incompleteness of the excerpted parts of the final instructions on the standard of proof and the references to “timid” jurors and what is characterized as “morality-laden” language, we would not give effect to this ground of appeal.

[6] On their own, the references to timidity and to conscience are not fatal. They should not have been said, but their mere iteration is not a sufficient basis on which we should interfere.

[7] The appellant also contends that the jurors were not properly instructed on the onus and standard of proof, including the meaning to be assigned to proof beyond a reasonable doubt,[^2] in preliminary instructions at the beginning of the trial, and again in the charge.

[8] As we are required to do, we have considered the instructions on the onus and standard of proof as a whole, and have concluded that, despite the impugned passages, there is no reasonable likelihood that the jurors would have been under any misapprehension of the standard of proof required to find the appellant guilty of the offence charged.

[9] The earlier instructions, given twice, were fully compliant with Lifchus. They explained the meaning to be assigned to proof beyond a reasonable doubt, including its equivalence with being sure about guilt. As Lifchus points out, the reference to “feeling sure” as a basis for conviction, is problematic only where the standard of proof is otherwise unexplained. That is not this case.

The Second Ground: Jury Vetting

[10] The second ground of appeal concerns the integrity of the jury selection process.

[11] Shortly before jury selection began, Crown counsel at trial provided defence counsel with an annotated list of jurors from which the jury was to be selected. The additional information provided was more extensive than simply the criminal records of the prospective jurors. During the selection process, neither party used up all their peremptory challenges.

[12] The argument advanced here is that we should distinguish this case from our earlier authorities because of the more extensive and intrusive information obtained about prospective jurors, the lateness of its disclosure to defence counsel, and the failure of the prosecutor to correct some of the trial judge’s comments about the lack of knowledge of jurors’ background in his opening instructions about the selection process.

[13] We would not give effect to this ground of appeal.

[14] In this case, the appellant’s trial counsel was supplied with the same material as the prosecutor. Apprised of this information, trial counsel for the appellant chose not to use it in jury selection. We are not prepared to say that the differences in the nature and extent of information obtained, the time of its disclosure, or the discrepancy between what the judge told the jury in opening and the reality of which the trial judge was likely unaware, caused the appellant any miscarriage of justice.

[15] The appeal is dismissed.

“Winkler C.J.O.”

“John Laskin J.A.”

“David Watt J.A.”

[^1]: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.

[^2]: The principal complaint, that the trial judge erred by failing to instruct the jury expressly that proof beyond a reasonable doubt is much closer to absolute certainty than to balance of probabilities, has already been rejected by this court in R. v. Zebedee (2006), 2006 CanLII 22099 (ON CA), 211 C.C.C. (3d) 199.