r. v. morin, [1988] 2 S.C.R. 345

Guy Paul Morin Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. morin

File No.: 20449.

1988: June 30; 1988: November 17.

Present: Dickson C.J. and McIntyre, Lamer, Wilson, Le Dain*, La Forest and Sopinka JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Charge to jury ‑‑ Reasonable doubt ‑‑ Whether trial judge misdirected jury as to burden of proof ‑‑ Whether standard of proof beyond reasonable doubt applied to individual pieces of evidence.

Criminal law ‑‑ Charge to jury ‑‑ Reasonable doubt ‑‑ Whether jury's deliberations involve a two‑stage process: the "fact finding" stage and the "verdict" stage ‑‑ Whether trial judge should instruct jurors to apply standard of proof beyond reasonable doubt at each stage.

Criminal law ‑‑ Charge to jury ‑‑ Psychiatric evidence ‑‑ Evidence tending to show accused's propensity to commit crime ‑‑ Crown seeking to refer to the psychiatric evidence on the issue of identity ‑‑ Whether trial judge should have directed the jury to consider the psychiatric evidence on the issue of the identity of the killer.

Evidence ‑‑ Psychiatric evidence ‑‑ Admissibility ‑‑ Evidence tending to show accused's propensity to commit crime ‑‑ Crown seeking to refer to the psychiatric evidence on the issue of identity ‑‑ Whether psychiatric evidence admissible if tendered by the Crown ‑‑ Whether evidence relevant on the issue of identity ‑‑ Whether evidence admissible as evidence of similar facts.

Criminal law ‑‑ Appeal from an acquittal ‑‑ Trial judge misdirected jury as to burden of proof ‑‑ Crown's duty to satisfy the court that the verdict would not necessarily have been the same if the jury had been properly instructed ‑‑ New trial ordered by Court of Appeal ‑‑ Whether Crown had discharged the onus.

Practice ‑‑ Supreme Court of Canada ‑‑ Introduction of fresh evidence ‑‑ Procedure to follow.

The appellant was acquitted on a charge of first degree murder of a nine‑year‑old girl. On appeal, the Court of Appeal unanimously found (1) that the trial judge erred in his charge when he invited the jury to apply the criminal standard of proof beyond a reasonable doubt to individual pieces of evidence; and (2) that he ought to have directed the jury that certain evidence elicited on the Crown's examination of the defence psychiatrist, tending to show that both the perpetrator and the appellant shared abnormal traits, was relevant on the issue of identity. The Court also rejected appellant's application to admit fresh evidence, in affidavit form, of the psychiatrist's explanation of the answers given on examination. This fresh evidence supported the contention that the evidence was not relevant on the issue of identity. In light of the seriousness of the errors, the majority of the Court of Appeal ordered a new trial. In this Court, the appellant submitted that the charge, when read as a whole, did not invite a piecemeal examination of the evidence and that the Court of Appeal failed to recognize a two‑stage process in the deliberation of the jury, each of which attracts the application of the doctrine of reasonable doubt. The appellant submitted that in the "fact finding" stage, the evidence must be examined in relation to the other evidence but, having been so examined, it must individually meet the test of proof beyond a reasonable doubt. At the verdict stage, the jury looks at all the evidence which it has accepted and determines whether this evidence as a whole establishes the guilt of the accused beyond a reasonable doubt. He also submitted that the evidence of the psychiatrist on examination did not establish the necessary nexus between the perpetrator and the appellant to be admissible, if such evidence is ever admissible for the prosecution; and finally, that the Court of Appeal erred in dismissing his application to admit fresh evidence.

Held: The appeal should be dismissed.

Per Dickson C.J. and McIntyre, La Forest and Sopinka JJ.: It is misdirection to instruct the jury to apply the standard of reasonable doubt to individual pieces of evidence. In this case, the jury would likely have concluded from the trial judge's charge read as a whole that, in examining the evidence, they were to give the appellant the benefit of the doubt in respect of any evidence. The effect of the misdirection may very well have been that the jury examined evidence that was crucial to the Crown's case in bits and pieces. Standing alone or pitted against the evidence of the appellant without the support of other evidence, much of this evidence might have been discarded. When the jury came to consider the Crown's case as a whole there may not have been very much left of it. This scenario is a very likely one and the charge therefore constituted a serious misdirection.

It is also misdirection to instruct the jury to apply the criminal standard at two stages as submitted. The two‑stage application of the criminal standard is wrong in principle because the function of a standard of proof is not the weighing of individual items of evidence but the determination of ultimate issues. Furthermore, it would require the individual member of the jury to rely on the same facts in order to establish guilt. The law is clear on this point: the members of the jury can arrive at their verdict by different routes and need not rely on the same facts. Indeed, the jurors need not agree on any single fact except the ultimate conclusion. During the process of deliberation, the jury must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt. This of necessity requires that each element of the offence or issue be proved beyond a reasonable doubt. Beyond this injunction, it is for the trier of fact to determine how to proceed and a trial judge should not lay down additional rules for the weighing of the evidence. But there are two exceptions: (1) a jury should be instructed that the facts are not to be examined separately and in isolation with reference to the criminal standard; and (2) where issues of credibility arise between the evidence for the prosecution and the defence, the jury should be charged that it is not necessary for them to believe the defence evidence on a vital issue but that it is sufficient if it, viewed in the context of all the evidence, leaves them in a state of reasonable doubt as to the accused's guilt.

The trial judge was right in instructing the jury that the evidence elicited on the Crown's examination of the defence psychiatrist was inadmissible as proof of identity. The Court of Appeal erred in directing a new trial on this ground. Conduct tending to establish that the appellant is a member of an abnormal group with the same propensities as the perpetrator is insufficient to render the evidence admissible as similar fact evidence. There must be some further distinguishing features. The proffered evidence must tend to show that there was some striking similarity between the manner in which the perpetrator committed the criminal act and such evidence. Apart from that requirement, such evidence will also be excluded if its prejudicial effect overbears its probative value.

The admission of psychiatric evidence tendered by the Crown tending to show disposition should be subject to the same test. Accordingly, it is only admissible where it is relevant to an issue in the case apart from its tendency to show disposition and, if it is relevant to that issue, where its probative value outweighs its prejudicial effect. If the evidence sole relevance or primary relevance is to show disposition, then the evidence must be excluded. In order to be relevant on the issue of identity, the evidence must tend to show that the accused shared a distinctive unusual behavioural trait with the perpetrator of the crime. The trait must be sufficiently distinctive that it operates virtually as a badge or mark identifying the perpetrator. In this case, the fact that the appellant was a member of an abnormal group, some of whose members have the unusual behavioural characteristics shown to have been possessed by the perpetrator, was not sufficient.

Given the conclusion with respect to the second ground, the ground of appeal relating to the Court of Appeal's refusal to permit the introduction of fresh evidence need not be considered. Nevertheless, a party who intends to introduce fresh evidence in the argument of an appeal in this Court should apply by motion to this Court for an order admitting the new evidence. The application should be supported by an affidavit establishing the pre‑conditions for the reception of such evidence. If this procedure is adopted when the Court of Appeal has refused to hear the evidence, a motion can be made to this Court in advance of the appeal to determine whether it will hear the evidence. Nothing is gained by making the Court of Appeal's refusal a ground of appeal since the criteria for admissibility of the evidence are precisely the same in this Court as in the Court of Appeal.

On an appeal from an acquittal, it is the duty of the Crown to satisfy the court that the verdict would not necessarily have been the same if the jury had been properly instructed. The burden is a heavy one and the Crown must satisfy the court with a reasonable degree of certainty. The charge with respect to the burden of proof lays down for the jury one of the most fundamental rules of criminal trial process. If the jury accepted the instruction and examined the evidence separately, subjecting each item to the standard of proof beyond a reasonable doubt, then the whole process of decision was distorted and there was no proper trial of the appellant. Therefore, the Crown discharged the onus. Given the cogency of the evidence, there was the requisite degree of certainty that the verdict would not necessarily have been the same if the proper instruction had been given.

Per Lamer and Wilson JJ.: Reasonable doubt plays two distinct roles in the criminal trial process. First, at the primary level, the facts upon which the jury rely in order to arrive at a determination of guilt must be established beyond a reasonable doubt. This means that the jury must be satisfied, within the context of all the facts of the case, that each of the facts they rely on for a finding of guilt has been proved beyond a reasonable doubt. After looking at the context of all the facts, if the jury still has a reasonable doubt about a particular fact, this doubt must be resolved in favour of the accused and that piece of evidence rejected. At the second level, reasonable doubt operates in the determination of guilt or innocence. The jury must look at the totality of the evidence and determine whether on the proved facts, i.e., on those facts which have survived the scrutiny at the primary level, the accused is guilty. If there remains a reasonable doubt as to the accused's guilt, the doubt must be resolved in favour of the accused and a verdict of not guilty entered.

In this case, while the trial judge was correct to direct the jury not to use facts that were not proved beyond a reasonable doubt in order to found a conviction, he erred in suggesting that each fact should be assessed in isolation from the others. The trial judge should have instructed the jury that in their ultimate determination of guilt they could rely only on facts which, when assessed in the context of all the facts, they found to have been proved beyond a reasonable doubt; that they must not make a finding of guilt on doubtful facts; and, that facts, which might seem doubtful when viewed in isolation, might become completely credible against the backdrop of all the other facts.

The Court of Appeal erred also on this point when it indicated that the only thing that must be proved beyond a reasonable doubt was the guilt of the accused. The implication of the Court of Appeal's judgment is that the facts underlying this conclusion do not themselves need to be proved beyond a reasonable doubt. This is wrong. It gives the jury no guidance as to what standard of proof it must apply to the "fact finding" exercise. In the absence of direction they might apply a balance of probabilities or even less stringent test. The jury must be instructed that in making a determination as to the guilt of the accused they must have resort only to facts which, when assessed in the context of all the facts, have been proved to their satisfaction beyond a reasonable doubt.

Cases Cited

By Sopinka J.

Referred to: Stewart v. The Queen, 1976 202 (SCC), [1977] 2 S.C.R. 748; R. v. Bouvier (1984), 1984 3453 (ON CA), 11 C.C.C. (3d) 257 (Ont. C.A.), aff'd 1985 17 (SCC), [1985] 2 S.C.R. 485; R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546; Nadeau v. The Queen, 1984 28 (SCC), [1984] 2 S.C.R. 570; R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652, aff'g (1986), 1986 159 (SK CA), 24 C.C.C. (3d) 449 (Sask. C.A.); R. v. Van Beelen (1973), 4 S.A.S.R. 353; Thomas v. The Queen, [1972] N.Z.L.R. 34; Director of Public Prosecutions v. Boardman, [1975] A.C. 421; R. v. Taylor (1982), 1982 2160 (ON CA), 66 C.C.C. (2d) 437; Morris v. The Queen, 1983 28 (SCC), [1983] 2 S.C.R. 190; R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670; R. v. Glynn (1971), 1971 425 (ON CA), 5 C.C.C. (2d) 364; R. v. Lupien, 1969 55 (SCC), [1970] S.C.R. 263; R. v. McMillan (1975), 1975 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.), aff'd 1977 19 (SCC), [1977] 2 S.C.R. 824; R. v. Robertson (1975), 1975 1436 (ON CA), 21 C.C.C. (2d) 385; R. v. Speid (1985), 1985 3480 (ON CA), 20 C.C.C. (3d) 534; R. v. Stolar, 1988 65 (SCC), [1988] 1 S.C.R. 480; Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759; Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277; R. v. Lynch, Malone and King (1978), 1978 2347 (ON CA), 40 C.C.C. (2d) 7; R. v. Moreau (1986), 1986 4618 (ON CA), 26 C.C.C. (3d) 359; R. v. Agbim, [1979] Crim. L.R. 171.

By Wilson J.

Applied: Chamberlain v. The Queen, [1984] 58 A.L.J.R. 133; referred to: Nadeau v. The Queen, 1984 28 (SCC), [1984] 2 S.C.R. 570; R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652; R. v. Van Beelen (1973), 4 S.A.S.R. 353.

Authors Cited

Cross, Sir Rupert. Cross on Evidence, 6th ed. By Sir Rupert Cross and Colin Tapper. London: Butterworths, 1985.

Wigmore, John Henry. Evidence in Trials at Common Law, vol. 9. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1981.

APPEAL from a judgment of the Ontario Court of Appeal (1987), 1987 6819 (ON CA), 21 O.A.C. 38, 36 C.C.C. (3d) 50, allowing the Crown's appeal from the acquittal of the accused on a charge of first degree murder and ordering a new trial. Appeal dismissed.

Clayton Ruby and Michael Code, for the appellant.

David Fairgrieve and Laurie Vechter, for the respondent.

The judgment of Dickson C.J. and McIntyre, La Forest and Sopinka JJ. was delivered by

1. Sopinka J.‑‑This case illustrates once again the hazards in attempting to amplify the application of the principle that in a criminal case all elements of the charge must be proved by the prosecution beyond a reasonable doubt.

2. On February 7, 1986, Guy Paul Morin was acquitted on a charge of first degree murder of Christine Jessop, allegedly committed between October 2, 1984 and January 1, 1985.

3. The appellant entered a plea of not guilty at trial. His position was that he was not the killer, but in the alternative, if he was the killer he was not guilty by reason of insanity.

4. The evidence at trial was reviewed in some detail in the reasons of the Court of Appeal, now reported at (1987), 1987 6819 (ON CA), 36 C.C.C. (3d) 50 (Ont.), and need not be repeated here.

5. The Crown appealed the acquittal to the Court of Appeal on the basis of two alleged errors in the charge to the jury. The Court of Appeal was unanimous that the jury had been misdirected in the following respect:

(i) Standard of Proof

6. The trial judge invited the jury to apply the criminal standard of proof beyond a reasonable doubt to individual pieces of evidence.

(ii) Psychiatric Evidence

7. That the trial judge ought to have directed the jury that certain evidence elicited on examination from a defence psychiatrist, Dr. Orchard, tending to show that both the perpetrator and the appellant shared abnormal traits, was relevant on the issue of identity.

8. The Court of Appeal did not, however, agree on the disposition of the appeal. Brooke and Robins JJ.A. were satisfied that the errors warranted a new trial. Cory J.A. was not satisfied that the Crown had established that the verdict would not necessarily have been the same if the jury had been properly instructed.

9. In the result, a new trial was directed and that decision is challenged in this appeal.

10. In outline the submission of the appellant on these two points is:

(i) Standard of Proof

11. Mr. Ruby submitted that the charge as a whole did not invite a piecemeal examination of the evidence. The Court of Appeal erred in failing to recognize a two‑stage process in the deliberation of the jury, each of which attracts the application of the doctrine of reasonable doubt. During the first, or "fact finding" stage, the jury determines "what happened". The evidence must be examined in relation to the other evidence but, having been so examined, it must individually meet the test of proof beyond a reasonable doubt. Only evidence that does so is considered at the next stage.

12. The second is the guilty, or verdict, stage during which the jury looks at all the evidence which it has accepted and determines whether this evidence as a whole establishes the guilt of the accused beyond a reasonable doubt. It is submitted by the appellant that the charge to the jury was in accordance with the foregoing.

(ii) Psychiatric Evidence

13. Mr. Code submitted that the evidence of Dr. Orchard on examination did not establish the necessary nexus between the perpetrator and the appellant to be admissible, if such evidence is ever admissible for the prosecution. The evidence obtained did not go beyond evidence of mere disposition and is excluded on policy grounds.

14. Furthermore, even if the evidence possessed the necessary ingredients to establish some nexus between the killer and the appellant, the Court of Appeal erred in failing to balance its probative value as against its prejudicial effect.

15. In aid of this ground an application had been made to the Court of Appeal to admit fresh evidence in the form of an affidavit of Dr. Orchard explaining the answers given on examination. The Court of Appeal rejected this application without hearing the fresh evidence. The appellant says the Court of Appeal erred and the refusal is put forward as a ground of appeal.

Factual Background

16. Although a detailed review of the evidence is neither necessary nor, in the circumstances, desirable, a few brief extracts will serve to make the issues more intelligible. The Crown relied, inter alia, on the following evidence:

(i) hair embedded in tissue on a silver chain around the deceased's neck was analyzed scientifically and found to match the hair of the appellant;

(ii) several hairs in the appellant's car were similarly matched with the hair of Christine Jessop. The appellant denied that Christine Jessop was ever in his car;

(iii) certain fibres and animal hairs found at the murder scene were matched with fibre and animal hairs found in the appellant's car or residence;

(iv) statements alleged to have been made by the appellant to one Hobbs, an undercover officer, from which an inference of guilt might be drawn and appellant's demonstration in the Whitby jail in May 1985 of how he repeatedly stabbed his victim;

(v) the appellant's admissions and inculpatory statements to two cell‑mates, Leyte and May, in the Whitby jail.

17. The appellant disputed the significance of the expert evidence relating to the samples of hair and fibre. The evidence of Hobbs, Leyte and May was forcefully attacked on the grounds of inaccuracy and lack of credibility. The appellant also put forward an alibi defence, the gist of which was that after leaving work he went shopping and did not return home until after Christine Jessop disappeared.

18. With respect to the alternative defence of insanity, the appellant called psychiatric evidence including that of Dr. Orchard, a forensic psychiatrist. It was during the examination of this witness by Crown counsel, Mr. Scott, that the evidence which gave rise to the second ground of appeal was elicited.

First Ground: Alleged Misdirection Concerning the Standard of Proof

19. The appellant submits that the charge, when read as a whole, did not invite the jury to subject individual pieces of evidence to the criminal standard but rather the effect of the charge was that during the "fact finding" stage items of evidence were to be examined in relation to other evidence. The residuum resulting from this process constitutes the "whole of the evidence" from which the jury determines whether guilt has been proved beyond a reasonable doubt.

20. This argument raises two questions:

(i) Is the appellant's interpretation of the charge correct?

(ii) Assuming it is, is it misdirection to instruct the jury to apply the criminal standard at two stages as submitted?

21. The appellant does not contest that it is misdirection to instruct the jury to apply the standard of reasonable doubt to individual pieces of evidence. There is ample authority for this view: Stewart v. The Queen, 1976 202 (SCC), [1977] 2 S.C.R. 748, at pp. 759‑61; R. v. Bouvier (1984), 1984 3453 (ON CA), 11 C.C.C. (3d) 257 (Ont. C.A.), at p. 265, aff'd 1985 17 (SCC), [1985] 2 S.C.R. 485.

22. The following are the relevant excerpts from the charge to the jury set out in the order in which they occurred:

23. Concerning Evidence

You are not obliged to accept any part of the evidence of a witness just because there is no denial of it. If you have a reasonable doubt about any of the evidence you will give the benefit of that doubt to the accused with respect to such evidence. Having decided what evidence you consider worthy of belief, you will consider it as a whole, of course, in arriving at your verdict. [Emphasis added.]

2. Concerning Burden of Proof

The accused is entitled to the benefit of reasonable doubt on the whole of the case and on each and every issue in the case.

Proof beyond a reasonable doubt does not apply to the individual items of evidence or the separate pieces of evidence in the case, but to the total body of evidence upon which the Crown relies to prove guilt. Before you can convict you must be satisfied beyond a reasonable doubt of his guilt.

3. Concerning Hairs and Fibres

It seems to me that this evidence does not go beyond proving that Christine could have been in the Honda motor vehicle and that the accused could have been at the scene of the killing and, of course, that is not proof beyond a reasonable doubt.

4. Concerning Appellant's Statements to Hobbs

I was going to go on to say that if you find that the evidence of the accused at trial here represents the correct interpretation of those tapes and transcripts, or parts of the tapes and transcripts, or if you have a reasonable doubt that that might be so, you will give him the benefit of the doubt as to those parts of the tapes or transcripts and adopt his interpretation.

5. Concerning Appellant's Statement to Inmate May

Now, as to that evidence in relation to that part of the tape that I have just read, if you find the evidence of the accused at trial represents the correct interpretation of that exchange, or if you have a reasonable doubt that that may be so, you will give the benefit of the doubt to the accused and adopt his interpretation.

23. In my opinion, based on my reading of the charge as a whole, a jury would likely have concluded that in examining the evidence they were to give the accused the benefit of the doubt in respect of any evidence. This process of examination and elimination would occur during the so‑called "fact finding" stage, to use the appellant's phrase. The evidence as a whole to which the jury was to apply itself in order to determine guilt or innocence was the residuum after the "fact finding" stage. There is no other way of reading the first excerpt from the charge.

24. The appellant contends, however, that the second excerpt corrected this error. Cory J.A. agreed that it and the instruction as to alibi "do much to rectify the errors made on this subject" (p. 62). The second excerpt refers to the "whole of the case" and the "total body of evidence". Having been told earlier that the "whole" upon which the verdict was to be based consisted of the evidence that had been accepted, I am not satisfied that the jury would have interpreted this passage as a correction. Rather, they might very well have assumed that the earlier definition of the "whole" still applied. At best, from the appellant's standpoint the jury would be confused. Subsequent passages in the charge illustrate what is meant by the first excerpt and would confirm that individual pieces of evidence were to be examined by reference to the criminal standard.

25. Excerpt 3 occurs after a review of the evidence relating to the hair and fibres. The appellant suggests that this observation by the trial judge is merely descriptive of the inference that can be drawn from the evidence. In my opinion, in light of what was said in the first excerpt, the jury would conclude that the appellant was to be given the benefit of the doubt and this evidence was not to be considered as part of the whole in arriving at the jury's verdict.

26. Excerpt 4 deals with the evidence of undercover officer Hobbs and the appellant's interpretation of what was said. Hobbs' version might have been strengthened in the minds of the jury if considered along with other evidence, in particular the evidence of Leyte and May. These two cell‑mates gave evidence about statements and actions of the appellant tending to incriminate him. This passage in the charge invited the jury to pit the evidence of Hobbs in isolation against that of the appellant. If the evidence of the appellant put the evidence of Hobbs in doubt, then by reason of the instruction in the first excerpt, this evidence was to be rejected in favour of the appellant's interpretation which was not inculpatory.

27. The instruction in excerpt 5 invited the jury to deal with the evidence of cell‑mate May in the same manner, with the same result.

28. The appellant submits, citing R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), that different considerations apply where the credibility of defence evidence is at issue. In such cases the argument is that the defence evidence does not have to be believed but "only has to raise a reasonable doubt". That does not mean, however, that the defence evidence or the evidence which it contradicts or explains is to be examined piecemeal. The judgment of Morden J.A. in Challice, supra, which the appellant agrees expresses the traditional view and is consistent with the judgment of this Court in Nadeau v. The Queen, 1984 28 (SCC), [1984] 2 S.C.R. 570, and R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652, correctly states the law in the following passage (at p. 557):

Understandably, a jury have to give careful consideration to issues of credibility when deliberating upon their verdict, and with respect to various pieces of evidence they may have differing views: total acceptance, total rejection, or something in between. An effective and desirable way of recognizing this necessary part of the process, and putting it to the jury in a way that accurately comports with their duty respecting the burden and standard of proof, is to instruct the jury that it is not necessary for them to believe the defence evidence on a vital issue‑‑but that it is sufficient if it, viewed in the context of all the evidence, leaves them in a state of reasonable doubt as to the accused's guilt: see R. v. Lobell, [1957] 1 Q.B. 547 at p. 551, per Lord Goddard, C.J. [Emphasis added.]

29. Nothing in Nadeau, supra, supports the appellant's submission. In that case the trial judge charged the jury in effect that they should accept either the Crown's version of the facts or that of the accused. He added that the accused was entitled to the benefit of the doubt only if the versions were equally consistent with the evidence. The judgment of Lamer J. makes it plain that the accused's version is entitled to the benefit of the doubt unless when considered in light of all the evidence the jury is satisfied beyond a reasonable doubt that the Crown's version is correct. He said (at p. 573):

The jurors cannot accept his [a Crown witness'] version, or any part of it, unless they are satisfied beyond all reasonable doubt, having regard to all the evidence, that the events took place in this manner; otherwise, the accused is entitled, unless a fact has been established beyond a reasonable doubt, to the finding of fact the most favourable to him, provided of course that it is based on evidence in the record and not mere speculation. [Emphasis added.]

30. There is nothing in the judgment in the Thatcher case which is inconsistent with this view.

31. The effect of the misdirections referred to above may very well have been that the jury examined evidence that was crucial to the Crown's case in bits and pieces. Standing alone or pitted against the evidence of the accused without the support of other evidence, much of this evidence might have been discarded as not measuring up to the test. When the jury came to consider the Crown's case as a whole there may not have been very much left of it. We cannot know for certain, but this scenario is a very likely one and the charge therefore constituted a serious misdirection.

32. This conclusion is sufficient to dispose of this ground of appeal without addressing the second point in the appellant's argument: the submission that it is a correct instruction to a jury that they are to apply the criminal standard in two stages‑‑the fact finding stage and the verdict, or guilt, stage. Since, however, it was an attempt to do so by the trial judge that led to the difficulties in the charge, I propose to consider this point.

33. The authorities reviewed above are clear that the jury is not to examine the evidence piecemeal by reference to the criminal standard. Otherwise, there is virtually no guidance in previous cases as to what legal rules, if any, apply to the process of weighing the evidence. Attempts to formulate such rules have been frowned upon. Thus, in R. v. Van Beelen (1973), 4 S.A.S.R. 353 (S.C. in banco), a case heavily relied on by the appellant, the full Court of South Australia held that in finding the facts the jury could not draw an inference of guilt from several facts whose existence was in doubt. The learned author of Cross on Evidence (6th ed. 1985), in referring to this case characterizes this as an esoteric question and concludes (at p. 146):

Whatever may be the proper direction in the circumstances of a particular case, it is to be hoped that questions such as those which have just been raised will never be allowed to become the basis of prescribed rules.

34. A case which comes closest in grappling with this problem is Thomas v. The Queen, [1972] N.Z.L.R. 34 (C.A.) The trial judge charged the jury in the following language (at p. 36):

Now whilst each piece of evidence must be carefully examined, because that is the accused's right and that is your duty, the case is not decided by a series of separate and exclusive judgments on each item or by asking what does that by itself prove, or does it prove guilt? That is not the process at all. It is the cumulative effect . . . . [Emphasis added by the Court of Appeal.]

35. Counsel for the appellant in that case contended that the jury should be instructed to proceed in a series of separate steps to examine the evidence and eliminate that which did not meet the requisite standard. This submission was answered as follows by North P. (at p. 37):

If we have understood Mr Temm's argument correctly, it is the passage in the summing‑up which we have italicised that he challenges. As the argument proceeded, it became increasingly plain to us that the premise for his propositions was based on a misconception of the respective functions of the Judge and the jury in a criminal case. It is the duty and obligation of the Judge to instruct the jury on all matters of law, including the burden and standard of proof required in criminal cases. The facts, on the other hand, are for the jury, and while the Judge may think it right to give the jury some assistance in dealing with the facts, it is no part of his duty to tell the jury that each item of evidence must be weighed by them separately, and that they must decide that it has been proved beyond reasonable doubt before they can use it in reaching their verdict. It is for the jury to determine for themselves which parts of the evidence they are prepared to accept or to reject. What Mr Temm apparently sought in vain at the trial and now sought to support in this Court, was, what he claimed as the appellant's right to a direction instructing the jury to proceed by a series of separate steps, eliminating as they proceeded on their intellectual journey every fact which, considered by itself, raised more than one inference, so that in the end the jury should consider only those facts and inferences which in themselves proved beyond reasonable doubt that the appellant was guilty.

The Crown case in this instance was built up of a number of separate ingredients, which it was contended acquired a meaning in the context of the indictment, only when examined with proper regard to the interrelation of the constituent elements.

36. The argument in favour of a two‑stage application of the criminal standard has superficial appeal in theory but in my respectful opinion is wrong in principle and unworkable in practice. In principle it is wrong because the function of a standard of proof is not the weighing of individual items of evidence but the determination of ultimate issues. Furthermore, it would require the individual member of the jury to rely on the same facts in order to establish guilt. The law is clear that the members of the jury can arrive at their verdict by different routes and need not rely on the same facts. Indeed the jurors need not agree on any single fact except the ultimate conclusion. See Wigmore on Evidence (Chadbourn rev. 1981), vol. 9, § 2497, at pp. 412‑14; R. v. Lynch, Malone and King (1978), 1978 2347 (ON CA), 40 C.C.C. (2d) 7 (Ont. C.A.), at p. 19; R. v. Bouvier (Ont. C.A.), supra, at pp. 264‑65; R. v. Moreau (1986), 1986 4618 (ON CA), 26 C.C.C. (3d) 359 (Ont. C.A.), at p. 389; R. v. Agbim, [1979] Crim. L.R. 171 (C.A.); R. v. Thatcher (1986), 1986 159 (SK CA), 24 C.C.C. (3d) 449 (Sask. C.A.), at p. 510, appeal dismissed, 1987 53 (SCC), [1987] 1 S.C.R. 652, at p. 697.

37. The matter is summed up in Cross on Evidence, op. cit., at p. 146:

It has been held by the Court of Appeal that it is unnecessary for a judge to direct the jury that it must be unanimous with regard to even one item of evidence bearing upon a particular count before convicting on it. It seems to be enough that all members of the jury find the accused guilty upon the basis of some of the facts bearing upon that count.

38. In practice it is not practical not only because the jury would have to agree on the same facts but what individual facts prove. Individual facts do not necessarily establish guilt but are a link in the chain of ultimate proof. It is not possible therefore to require the jury to find facts proved beyond a reasonable doubt without identifying what it is that they prove beyond a reasonable doubt. Since the same fact may give rise to different inferences tending to establish guilt or innocence, the jury might discard such facts on the basis that there is doubt as to what they prove.

39. The concern which proponents of the two‑stage process express is, that facts which are doubtful will be used to establish guilt. The answer to this concern is that a chain is only as strong as its weakest link. If facts which are essential to a finding of guilt are still doubtful notwithstanding the support of other facts, this will produce a doubt in the mind of the jury that guilt has been proved beyond a reasonable doubt.

40. I conclude from the foregoing that the facts are for the jury to determine subject to an instruction by the trial judge as to the law. While the charge may and often does include many helpful tips on the weighing of evidence such as observing demeanour, taking into the account the interest of the witness and so forth, the law lays down only one basic requirement: during the process of deliberation the jury or other trier of fact must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt. This of necessity requires that each element of the offence or issue be proved beyond a reasonable doubt. Beyond this injunction it is for the trier of fact to determine how to proceed. To intrude in this area is, as pointed out by North P., an intrusion into the province of the jury.

41. The reason we have juries is so that lay persons and not lawyers decide the facts. To inject into the process artificial legal rules with respect to the natural human activity of deliberation and decision would tend to detract from the value of the jury system. Accordingly, it is wrong for a trial judge to lay down additional rules for the weighing of the evidence. Indeed, it is unwise to attempt to elaborate on the basic requirement referred to above. I would make two exceptions. The jury should be told that the facts are not to be examined separately and in isolation with reference to the criminal standard. This instruction is a necessary corollary to the basic rule referred to above. Without it there is some danger that a jury might conclude that the requirement that each issue or element of the offence be proved beyond a reasonable doubt demands that individual items of evidence be so proved.

42. The second exception is that it is appropriate where issues of credibility arise between the evidence for the prosecution and the defence that the jury be charged as suggested by Morden J.A. in Challice, supra. There is a danger in such a situation that a jury might conclude that it is simply a matter as to which side they believe. The suggested charge alerts them to the fact that, if the defence evidence leaves them in a state of doubt after considering it in the context of the whole of the evidence, then they are to acquit.

43. Consequently, even if the appellant is correct in his interpretation of the charge to the jury, there was misdirection‑‑although not as serious as the misdirection which I have found occurred.

Second Ground: The Psychiatric Evidence

44. The Court of Appeal accepted the submission of the prosecution that the trial judge had misdirected the jury when he charged them as follows:

One more thing I must tell you about this psychiatric evidence. There is contained in that evidence, I believe, particularly from Dr. Orchard, that the accused is a person who is quite capable of committing the type of crime we are considering in this case. I instruct you that you must not use that evidence as proof or indication of proof that he did, in fact, kill Christine Jessop just because he is capable of it.

45. The evidence referred to was elicited on the examination of Dr. Orchard by Mr. Scott, counsel for the Crown. The purport of this evidence is vital in the resolution of this ground of appeal. It is, therefore, necessary to quote it at some length:

Q. [Mr. Scott] I take it by the very fact that you are capable of expressing an opinion on what condition this man would be in, in the event that he sexually assaulted ‑‑ raped and stabbed many times Christine Jessop, that you must be of the opinion that he has the psychological make‑up to commit such an offence.

A. No, I am of the opinion that, in fact, the illness ‑ and if he did that ‑‑ did disturb his psychological make‑up so that he could do such an act.

HIS LORDSHIP: Excuse me. I didn't get that. Your answer was "No . . ." what, Doctor?

THE WITNESS: No. The illness very likely did ‑‑ could have or very likely did disturb his psychological make‑up to the point that he could commit such an offence. I didn't feel that he had necessarily the psychological make‑up to molest children.

Q. Coming back to where we started about capacity and your responses to certain hypotheticals, I am suggesting to you the man sitting there, on what you have told us in this Court, is a man that has mental problems, who is capable of raping and of stabbing multiply an individual. Isn't that correct?

A. He is capable of forcing intercourse and stabbing multiply a person if he did that, yes, he is capable of it.

Q. With a 40 pound girl, a nine year old.

A. Yes.

Q. Now, you talked of schizophrenia. I suggest to you that the broad range of schizophrenics would not be so capable, would they?

A. Well, the majority of people with schizophrenia don't get into violent behaviour, but some of them do. So the majority of cases of schizophrenia would not be involved in this kind of behaviour. The point is I don't know whether he was involved in the behaviour or not, but I do know about the illness.

Q. You know that this illness is such that it would permit him to do that to that nine year old, don't you?

A. Yes.

Q. And I am suggesting to you that the number who could do that to a nine year old is minuscule.

A. That is true.

Q. That this man is something special, isn't he?

A. Yes. It is not a usual kind of thing, not a common kind of thing, so yes, in that way it is unusual.

Q. It could only be an offence committed by a member of an abnormal group. Isn't that correct?

A. Well, almost, at any rate. I never say "only" or "never" or "always" because that's when I am wrong, but I would say in the vast, vast majority of cases such an offence would likely be committed by somebody who had some sort of pretty strong abnormality; a serious abnormality.

Q. Are not the psychiatric disorders that you are describing that this man has, similar to what you would expect to find in terms of the scene that has unfolded before you on Exhibit 8, an isolated area, sexual assault of a nine year old left with her clothes askew, stabbed many times?

A. Yes, certainly. I don't know‑‑first of all sexual assault of a nine year old, if it was attempting to force intercourse, would be pretty unusual because that is not a thing that a nine year old is usually attractive for. They usually are not developed to the point that they are usual sexual objects. Stabbed many times is often a sign that there is something strange going on. If somebody wants to kill somebody they can usually do it without doing it many times. They can usually manage not to sort of continue on in the activity.

Q. That is a sign of disorganization, isn't it?

A. Yes, it is.

Q. Multiple stab wounds on the chest and back are clearly an indication of a very disorganized crime, aren't they?

A. Yes.

Q. And particularly when you look at it as being a 40 pound, nine year old person, the victim.

Q. So they are able to come here, get in the witness stand and say "Not me"?

A. Yes, that could happen.

Q. And that is, again, a classic symptom of the disease which that man, Morin, has, isn't it?

A. Yes.

Q. So I am a little surprised that you indicate that you are surprised that he denied it. Why would you be at all surprised about that, Doctor?

A. I don't know that I am surprised that he denied it. I just say that when someone is able to take me through their memory and their mental processes about a certain time, then I can draw a conclusion from that. When a person does not have that available, then I can't draw conclusions from what he tells me about the incident or about the particular time. I have to draw conclusions from my diagnosis. That is what the difficulty is, you see. I don't know; I have nothing in my interviews with him that I could say, "Ah, yes, he did this", but I did have an illness. Whether he did it or not, that is up to somebody else to decide, that is not for me because I have nothing that can add to that one way or the other, except that there is this illness.

Q. And the second thing you can add is that in your opinion that man is the type of man who could commit this crime.

A. Yes, that is possible with this illness, that happens with this illness.

Q. That is very helpful, isn't it, sir, in terms of assessing a situation?

A. Whoever hears it will have to decide whether that is helpful.

Q. Then you went a third step and indicated ‑‑ I think you indicated that there would be a very small, small area of the population that could be capable of such a crime, didn't you?

A. Yes, it is not a common thing. [Emphasis added.]

46. The Court of Appeal held that this evidence was admissible on the issue of identity. At page 66 of his reasons (concurred in by Robins and Brooke JJ.A., on this point), Cory J.A. stated:

The critical psychiatric evidence, called as it was on behalf of the respondent and going as it did to identify the perpetrator of the crime, was admissible on the issue of identity notwithstanding the prejudicial effect it might have had upon the respondent: see R. v. Glynn, [infra].

47. The impugned passage from the charge was preceded by submission by both sides with respect to the issue and resulted in the following ruling:

On the issue of insanity there was considerable psychiatric evidence to the effect that the accused is a person with a mental illness and that he is so constituted that he is quite capable of committing the crime in question, that is sexual assault and killing. However, unless I change my mind between now and tomorrow when I charge the jury, I will be instructing the jury that that evidence should not be used as proof that the accused did, in fact, kill Christine Jessop. There may be more than one reason for that conclusion, but at the moment it is sufficient for me to say that there is no evidence in this case that this crime could only be committed by a person with the mental characteristics of the accused. [Emphasis added.]

48. In my opinion the trial judge was right in concluding that the evidence was not admissible as proof of identity.

49. Cory J.A. arrived at his conclusion that the evidence was admissible by reviewing certain authorities from which he developed a list of five criteria (p. 64). He then concluded the evidence of Dr. Orchard referred to above met these criteria.

50. The authorities reviewed by His Lordship dealt with two categories of evidence:

(i) similar fact evidence; and

(ii) psychiatric evidence tendered by accused persons to exclude the accused from membership in a special abnormal group to which the perpetrator is shown to have belonged.

51. I propose to review these cases and determine whether the principles which emerge from them support the conclusion of the Court of Appeal.

(i) Similar Facts

52. In similar fact cases it is not sufficient to establish that the accused is a member of an abnormal group with the same propensities as the perpetrator. There must be some further distinguishing feature. Accordingly, if the crime was committed by someone with homosexual tendencies, it is not sufficient to establish that the accused is a practising homosexual or indeed has engaged in numerous homosexual acts. The tendered evidence must tend to show that there was some striking similarity between the manner in which the perpetrator committed the criminal act and such evidence. To quote from Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.), at p. 454, per Lord Hailsham:

...whilst it would certainly not be enough to identify the culprit in a series of burglaries that he climbed in through a ground floor window, the fact that he left the same humorous limerick on the walls of the sitting room, or an esoteric symbol written in lipstick on the mirror, might well be enough. In a sex case, to adopt an example given in argument in the Court of Appeal, whilst a repeated homosexual act by itself might be quite insufficient to admit the evidence as confirmatory of identity or design, the fact that it was alleged to have been performed wearing the ceremonial head‑dress of a Red Indian chief or other eccentric garb might well in appropriate circumstances suffice.

53. Similarly in R. v. Taylor (1982), 1982 2160 (ON CA), 66 C.C.C. (2d) 437, evidence that the accused was a practising homosexual was rejected by the Ontario Court of Appeal notwithstanding that the assault in issue was a homosexual act.

54. Apart from the requirement that the proffered evidence tends to show that the accused shared some distinctive feature with the perpetrator, such evidence will be excluded if its prejudicial effect overbears its probative value. The admission of similar facts is an exception to an exclusionary rule of evidence which rules out evidence of past misconduct which would tend to show that the accused had the propensity to commit the crime. As pointed out by Lamer J. in Morris v. The Queen, 1983 28 (SCC), [1983] 2 S.C.R. 190, this rule of exclusion evolved as a result of the repeated exercise of a judicial discretion excluding such evidence because its probative value was outweighed by its prejudicial effect (p. 201). In considering whether an exception should be made, regard must be had for the underlying rationale of the exclusionary rule: does the prejudicial effect of the evidence outweigh its probative value? An exception should be made if the scales tip in favour of probative value. In Morris, supra, Lamer J. expressed this principle as follows (at p. 202):

This is not to say that evidence which is relevant to a given issue in a case will of necessity be excluded merely because it also tends to prove disposition. Such evidence will be admitted subject to the judge weighing its probative value to that issue (e.g., identity), also weighing its prejudicial effect, and then determining its admissibility by measuring one to the other. The degree of probative value required to overcome the exclusionary rule is presently the object of some disagreement and the law is as a result somewhat unclear. We do not need consider this aspect of the rule at any length as the facts of this case do not bring us within the exception.

55. This principle was reaffirmed by La Forest J. (speaking for the majority in this respect) in R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670. La Forest J. referred to the cardinal principle of our law of evidence to exclude otherwise relevant evidence if it "may unduly prejudice, mislead or confuse the trier of fact . . ." (p. 714).

56. Reference was also made to R. v. Glynn (1971), 1971 425 (ON CA), 5 C.C.C. (2d) 364 (Ont. C.A.) (leave to appeal refused, [1971] S.C.R. ix), a case in which a murder had apparently been committed by a person with homosexual tendencies. Evidence of previous homosexual acts on the part of the accused were admitted on the issue of identity. That case appears to conflict with Boardman, supra, and indeed with the decision in Taylor, supra. The court in Glynn was very much impressed by the analogy to a case in which it is shown that the crime was committed by a left‑handed person. In such circumstances clearly evidence would be admissible that the accused was left‑handed. The analogy is not apt because the evidence of the accused's physical state is not evidence showing propensity or disposition and therefore is not subject to the policy against the reception of such evidence unless its probative value outweighs its prejudicial effect.

(ii) Psychiatric Evidence Tendered by the Defence

57. Cases such as R. v. Lupien, 1969 55 (SCC), [1970] S.C.R. 263; R. v. McMillan (1975), 1975 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.), aff'd 1977 19 (SCC), [1977] 2 S.C.R. 824, and R. v. Robertson (1975), 1975 1436 (ON CA), 21 C.C.C. (2d) 385 (Ont. C.A.) (leave to appeal refused, [1975] 1 S.C.R. xi), were cases in which psychiatric evidence was tendered by the defence. The distinction was aptly put by Spence J. in McMillan (at p. 828) affirming the judgment of Martin J.A.:

I further agree...that when such evidence is adduced by the defence there is no policy preventing its admission such as the requirement of fairness to the accused which applies to prevent its being adduced by the Crown.

58. This passage suggests that such evidence is never admissible when tendered by the Crown even if it is relevant to some issue.

59. Martin J.A. reiterated this proposition in R. v. Speid (1985), 1985 3480 (ON CA), 20 C.C.C. (3d) 534. He said (at p. 545):

Such evidence is, however, excluded by a rule of policy when proffered by the Crown against the accused, notwithstanding its relevance. It was not suggested by Crown counsel that the appellant had put his disposition in issue enabling the Crown to rebut an assertion that he was of non‑violent disposition: see R. v. McMillan, supra.

60. On the other hand, the Court of Appeal treated the matter as if the only question was whether the evidence had relevance to some other issue, in this case, identity. For instance, Cory J.A. said (at p. 66):

The Crown, however, did not seek to refer to the evidence on the issue of propensity but rather on the issue of identity. The evidence was relevant and significant on the question of the identity of the killer of Christine Jessop, and on that issue it was admissible.

61. In my opinion, the correct view lies in between these two positions. The evidence should not always be excluded, but neither should it necessarily be admitted because it is relevant to an issue. It seems to me that the policy against the admission of such evidence is satisfied if its probative value exceeds its prejudicial effect. On the other hand, the mere fact** that the evidence has some relevance does not secure its admissibility if it does not meet this test.

62. It is illogical to treat evidence tending to show the accused's propensity to commit the crime differently because such propensity is introduced by expert evidence rather than by means of past similar conduct. If in the latter case the evidence is admitted provided its probative value exceeds its prejudicial effect, then the same test of admissibility should apply in the former case.

63. Accordingly, when the prosecution tenders expert psychiatric evidence, the trial judge must determine whether it is relevant to an issue in the case apart from its tendency to show propensity. If it is relevant to another issue (e.g. identity), it must then be determined whether its probative value on that other issue outweighs its prejudicial effect on the propensity question. In sum, if the evidence's sole relevance or primary relevance is to show disposition, then the evidence must be excluded.

64. It is difficult and arguably undesirable to lay down stringent rules for the determination of the relevance of a particular category of evidence. Relevance is very much a function of the other evidence and issues in a case. Attempts in the past to define the criteria for the admission of similar facts have not met with much success (see Cross on Evidence, op. cit., at pp. 310‑11). The test must be sufficiently flexible to accommodate the varying circumstances in which it must be applied.

65. In my opinion, in order to be relevant on the issue of identity the evidence must tend to show that the accused shared a distinctive unusual behavioural trait with the perpetrator of the crime. The trait must be sufficiently distinctive that it operates virtually as a badge or mark identifying the perpetrator. The judgment of Lord Hailsham in Boardman, quoted above, provides one illustration of the kind of evidence that would be relevant.

66. Similarly, psychiatric evidence that the male accused had a strong inclination to choke his female partner during intercourse would be relevant on the issue of identity in a murder case in which death ensued to the female victim as a result of strangulation during intercourse with the perpetrator.

67. Conversely, the fact that the accused is a member of an abnormal group some of the members of which have the unusual behavioural characteristics shown to have been possessed by the perpetrator is not sufficient. In some cases it may, however, be shown that all members of the group have the distinctive unusual characteristics. If a reasonable inference can be drawn that the accused has those traits then the evidence is relevant subject to the trial judge's obligation to exclude it if its prejudicial effect outweighs its probative value. The greater the number of persons in society having these tendencies, the less relevant the evidence on the issue of identity and the more likely that its prejudicial effect predominates over its probative value.

68. The evidence of Dr. Orchard referred to above amounts to no more than this. The appellant is a simple schizophrenic. A small percentage of simple schizophrenics have the tendency or capability of committing the crime in question in the abnormal fashion in which it was committed. There is no evidence that the appellant has these tendencies or capability unless one assumes, as Dr. Orchard was asked to do, that the appellant committed the crime. Accordingly the learned trial judge was right when he ruled that the evidence was not admissible as proof that the appellant did, in fact, kill Christine Jessop. There was, therefore, no error at trial in this respect.

Fresh Evidence

69. In view of the conclusion reached with respect to the second ground, it is unnecessary to deal with the ground of appeal relating to the refusal by the Court of Appeal to permit the introduction of fresh evidence. This evidence was designed to explain the testimony of Dr. Orchard referred to above in order to support the contention that it was not relevant.

70. In view of the procedure adopted by the appellant in this case and the absence of any guidance in the rules or authorities as to the practice in this Court in respect of this matter, I propose to make a few observations which I hope will be helpful. This is not intended as a criticism of counsel in this case.

71. In R. v. Stolar, 1988 65 (SCC), [1988] 1 S.C.R. 480, McIntyre J. has dealt exhaustively with the procedure to be followed in the Court of Appeal when fresh evidence is sought to be introduced under s. 610 of the Criminal Code. Stolar was a case in which the fresh evidence was tendered in aid of an order for a new trial on the basis that its availability at trial could reasonably have affected the verdict.

72. The fresh evidence in this appeal was not sought for that purpose but in aid of a submission that there should not be a new trial. The Court of Appeal dismissed the application. As pointed out by McIntyre J. in Stolar, at p. 491, they are empowered to do so. Indeed, that is the correct course where the conditions for the introduction of fresh evidence are absent. This Court was not given the same opportunity by reason of the procedure adopted. The refusal of the Court of Appeal was made a ground of appeal, the fresh evidence of Dr. Orchard was included in the Case on Appeal (apparently by agreement between counsel), referred to in the appellant's factum and during oral argument, all as if the Court had ruled that it would hear the evidence.

73. I can understand the appellant's dilemma. If reference was to be made to the evidence during the argument of this appeal it would not await a determination of that ground of appeal unless that ground was argued first and disposed of before the rest of the appeal was heard.

74. In order to solve this dilemma, a party who intends to introduce fresh evidence in the argument of an appeal in this Court should apply by motion to this Court for an order admitting the new evidence. The application should be supported by an affidavit establishing the pre‑conditions for the reception of such evidence (see Stolar, supra, and Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759). No such affidavit was filed by the appellant in this Court, nor apparently in the Court of Appeal.

75. If this procedure is adopted when the Court of Appeal has refused to hear the evidence, a motion can be made to this Court in advance of the appeal to determine whether it will hear the evidence. Nothing is gained by making the Court of Appeal's refusal a ground of appeal since the criteria for admissibility of the evidence are precisely the same in this Court as in the Court of Appeal.

Disposition

76. What consequences flow from the finding of misdirection on ground one but not ground two?

77. In the Court of Appeal, Cory J.A. would not have directed a new trial by reason of the heavy onus resting on the Crown in the case of an appeal from an acquittal. He was also of the opinion that the jury must have accepted the alibi evidence introduced by the defence or had a reasonable doubt with respect to it.

78. Robins J.A. would have directed a new trial based on the two errors. It is not clear that he would not have done so on the basis of the error in ground one alone. At the conclusion of his reasons relating to ground one he said (at p. 81):

The correct instruction stated as it was in general terms did not overcome the possible consequences of the incorrect instructions aimed as they were one by one at separate parts of the Crown's case relating to the identity of the killer of Christine Jessop. In my opinion, the considerations which led to a new trial being directed in Bouvier apply with equal force to this situation.

Brooke J.A. attached a great deal of importance to the misdirection relating to the burden of proof and concluded (at p. 85) that:

I think the onus on the Crown is satisfied when one examines the result of departing from the principle that proof beyond a reasonable doubt applies when the jury considers the whole of the evidence which it believes to determine the guilt or innocence of the accused, and not the test which is applied to individual pieces of the evidence. As to the individual pieces of the evidence, the fundamental issue is whether or not the jury believes that evidence and the facts that are to be found from it.

79. The onus resting on the Crown when it appeals an acquittal was settled in Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277. It is the duty of the Crown to satisfy the court that the verdict would not necessarily have been the same if the jury had been properly instructed.

80. I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. That it cannot do.

81. I do not agree with Cory J.A. that we can say that the jury accepted or was in doubt about the alibi evidence. As pointed out by Mr. Fairgrieve, counsel for the respondent, the jury might not have found it necessary to deal with the alibi because when the Crown's evidence was examined piecemeal and subjected in isolation to the criminal standard, there was no case left against the appellant. Or the jury may have rejected the alibi but found that what was left of the Crown's case did not satisfy them beyond a reasonable doubt.

82. The charge with respect to the burden of proof lays down for the jury one of the most fundamental rules of the game. Experience and jury studies tend to confirm the importance of these rules in relation to the outcome (see Wigmore on Evidence, op. cit., § 2497, fn. 9). The Court of Appeal recognized this principle in Bouvier, supra, and was affirmed by this Court. If, as I have found, the jury accepted the instruction and examined the evidence separately subjecting each item to the standard of proof beyond a reasonable doubt, then the whole process of decision was distorted and there has not been a proper trial of the appellant.

83. In my opinion, therefore, the Crown has discharged the onus. Given the cogency of the evidence, I have the requisite degree of certainty that the verdict would not necessarily have been the same if the proper instruction had been given.

84. Accordingly, the appeal is dismissed.

The reasons of Lamer and Wilson JJ. were delivered by

85. Wilson J.‑‑I have had the benefit of reading the reasons of my colleague, Justice Sopinka, and while I agree with his disposition of the appellant's second ground of appeal for the reasons given by him and with his disposition of the appeal as a whole, i.e., to dismiss it, I have some reservations about his approach to the reasonable doubt issue. I prefer therefore to write my own concurring reasons on this aspect of the appeal.

86. All three members of the Court of Appeal (1987), 1987 6819 (ON CA), 36 C.C.C. (3d) 50 found that the following passages from Craig J.'s charge to the jury were erroneous:

(i) (in the context of credibility)

If you have a reasonable doubt about any of the evidence you will give the benefit of the doubt to the accused with respect to such evidence. Having decided what evidence you consider worthy of belief, you will consider it as a whole, of course, in arriving at your verdict.

(ii) (with respect to the hair and fibre evidence)

It seems to me that this evidence does not go beyond proving that Christine could have been in the Honda motor vehicle and that the accused could have been at the scene of killing and, of course, that is not proof beyond a reasonable doubt.

(iii) (with respect to the respondent's statements to the undercover officer)

I was going to go on to say that if you find that the evidence of the accused at trial here represents the correct interpretation of those tapes and transcripts, or parts of the tapes and transcripts, or if you have a reasonable doubt that that might be so, you will give him the benefit of the doubt as to those parts of the tapes or transcripts and adopt his interpretation.

(iv) (with respect to the respondent's statements to his cellmate)

Now, as to the evidence in relation to that part of the tape that I have just read, if you find the evidence of the accused at trial represents the correct interpretation of that exchange, or if you have a reasonable doubt that that may be so, you will give the benefit of the doubt to the accused and adopt his interpretation.

Cory J.A. concluded (for the Court) that they constituted misdirection because "the standard of proof beyond a reasonable doubt does not apply to the individual items of evidence which make up the Crown's case but rather to the total body of evidence upon which the Crown relies to prove the guilt of the accused" (p. 60).

87. Mr. Ruby takes issue with this statement. He submits that the Court of Appeal failed to recognize that the deliberations of the jury involve a two‑stage process and that the reasonable doubt doctrine plays a role at both stages. If the evidence does not pass the first stage, Mr. Ruby submits, it never gets considered at the second stage. I believe that the authorities relied on by Mr. Ruby support his submission that reasonable doubt plays two distinct roles in the criminal trial process.

88. First, at the primary level, the facts upon which the jury rely in order to arrive at a determination of guilt must be established beyond a reasonable doubt. This does not mean, as the trial judge apparently thought, that each fact in isolation from the rest must be proved beyond a reasonable doubt. Rather, it means that the jury must be satisfied, within the context of all the facts of the case, that each of the facts they rely on for a finding of guilt has been proved beyond a reasonable doubt. After looking at the context of all the facts, if the jury still has a reasonable doubt about a particular fact, this doubt must be resolved in favour of the accused and that piece of evidence rejected.

89. At the second level, reasonable doubt operates in the determination of guilt or innocence. The jury must look at the totality of the evidence and determine whether on the proved facts, i.e., on those facts which have survived the scrutiny at the primary level, the accused is guilty. If there remains a reasonable doubt as to the accused's guilt, the doubt must be resolved in favour of the accused and a verdict of not guilty entered. Neither counsel questions this latter proposition. The Court of Appeal's statement that "reasonable doubt does not apply to the individual items of evidence which make up the Crown's case" does, however, cast doubt on the role of the doctrine at the first stage of the process. Was the Court of Appeal wrong? In my view, both authority and logic suggest that it was.

90. In Nadeau v. The Queen, 1984 28 (SCC), [1984] 2 S.C.R. 570, Lamer J. made the following comment at p. 573 on the issue of the standard of proof which must be met for the facts upon which a conviction is based:

The jurors cannot accept his version [of the facts], or any part of it, unless they are satisfied beyond all reasonable doubt, having regard to all the evidence, that the events took place in this manner; otherwise, the accused is entitled, unless a fact has been established beyond a reasonable doubt, to the finding of fact the most favourable to him, provided of course that it is based on evidence in the record and not mere speculation. [Emphasis added.]

I believe this statement is addressing the role of the reasonable doubt doctrine at the primary, i.e., the fact‑finding stage. It requires a fact elicited through the mouth of a witness to be assessed by the jury in the context of all the evidence and to be rejected if it has not been proved beyond a reasonable doubt.

91. In R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652, Chief Justice Dickson, speaking on this particular point for a unanimous Court, cited the foregoing passage from Nadeau with approval and applied the reasonable doubt doctrine to the fact‑finding process. Referring to the judge's charge in Thatcher he said at p. 701:

Moreover, early on in his charge he stated:

It is up to you to weigh the evidence of each witness, one against the other, and determine what you find to be true and reject what you do not believe. [Emphasis in original.]

When the offending passages are read with the above and subsequent admonitions, it is clear‑‑and, I believe, must have been clear to the jury‑‑that the trial judge means "accept beyond a reasonable doubt" when he refers to "accepting" Crown evidence, and means "accept as raising a reasonable doubt" when he refers to "accepting" defence evidence. I believe there was no error made when the charge is read as a whole.

92. The issue was addressed in much greater depth by the High Court of Australia in Chamberlain v. The Queen, [1984] 58 A.L.J.R. 133. Gibbs C.J. and Mason J. set out the question as follows at p. 139:

The final question of law that arises is whether, in a case where the evidence is circumstantial, each fact on which an inference is sought to be based must itself be proved beyond a reasonable doubt. In considering this matter it is necessary to keep distinct a number of questions which tend to be confused. In the first place, the question arises whether the proper method of approach to the facts is for the jury to consider each item of evidence separately, and to eliminate it from consideration unless satisfied about it beyond a reasonable doubt.

The Justices repudiated that approach. They stated at p. 139:

We have no doubt that the position is correctly stated in the following passage in R. v. Beble, [1979] Qd. R. 278 at 289, that "It is not the law that a jury should examine separately each item of evidence adduced by the prosecution, apply the onus of proof beyond reasonable doubt as to that evidence and reject it if they are not so satisfied". At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence . . . .

93. At page 140 the Justices expressed their agreement with the observation in R. v. Van Beelen (1973), 4 S.A.S.R. 353 (S.C. in banco), at p. 379, that it is "an obvious proposition in logic, that you cannot be satisfied beyond reasonable doubt of the truth of an inference drawn from facts about the existence of which you are in doubt".

94. The Justices then tried to resolve a confusion (p. 140) that had arisen from another passage in Van Beelen which had been taken by some to suggest that the jury was literally required to split up their deliberations into two separate stages:

The court [in Van Beelen] said, at p. 374:

"But the requirement of proof beyond reasonable doubt relates to the final stage in the process; the jury is not, in our view, required to split up the various stages in the process of reasoning leading to the conclusion of guilt beyond reasonable doubt and to apply some particular standard of proof to each of those steps...and to instruct them to do so would, in our view, be confusing and possibly misleading and would tend to the imposition of an artificial and scholastic straight‑jacket on their deliberations.

That, of course, does not mean that they ought to be encouraged or permitted to draw inferences of guilt from doubtful facts. As a matter of common sense it is impossible to infer guilt beyond reasonable doubt from facts which are in doubt. There is a clear distinction between drawing an inference of guilt from a combination of several proved facts, none of which by itself would support the inference, and drawing an inference of guilt from several facts whose existence is in doubt. In the first place the combination does what each fact taken in isolation could not do; in the second case the combination counts for nothing."

It is clear that the first part of this statement was not intended to contradict the second. It refers only to the manner in which the jury should be directed. It is quite correct to say that the jury are not required to split up the various stages in the process of their reasoning: they are not required to make findings on questions of primary fact, and jurors who agree in reaching the same ultimate conclusion may nevertheless disagree as to what evidence is to be accepted, or as to what inferences are to be drawn from evidence which they do accept. However, that does not mean that the jury may draw an inference of guilt from a fact which is not proved beyond reasonable doubt. [Emphasis added.]

The Justices then (p. 140) adopted the following passage from Van Beelen as to what instruction should be given to the jury:

We think, as we shall develop later, that the jury should be told that they can draw inferences only from facts which are clearly proved, but further than that it is neither necessary nor desirable to go.

and rejected a criticism which had been made of it:

Sir Richard Eggleston in Evidence, Proof and Probability (2nd ed., 1983), p. 122, expresses the view that this statement is erroneous. With all respect we do not agree with the criticism of the learned author, but it must be understood that the court was intending to say that inferences cannot be drawn from facts that remain doubtful at the end of the jury's consideration, and did not mean that facts which, viewed in isolation, seem doubtful must be disregarded. However, in our opinion, it must follow from the reasoning in R. v. Van Beelen that the jury can draw inferences only from facts which are proved beyond reasonable doubt. [Emphasis added.]

The Justices referred at p. 141 to the conflict of authority on the subject in the United States:

In the United States there is a conflict of authority on the question, and we do not share Wigmore's apparent preference for the view that it is only the whole issue (or the elements of the offence) that must be proved beyond a reasonable doubt: Wigmore on Evidence (3rd. ed., 1940), vol. IX, p. 324.

Murphy J. concurred with Gibbs C.J. and Mason J. at p. 155:

I agree that requirement of proof beyond reasonable doubt means that any fact should not be accepted for the purpose of inferring guilt unless, in the light of all the evidence, existence of that fact is established beyond reasonable doubt. Every crucial element must be proved beyond reasonable doubt.

Brennan J. added his concurrence at p. 168:

The prosecution case rested on circumstantial evidence. Circumstantial evidence can, and often does, clearly prove the commission of a criminal offence, but two conditions must be met. First, the primary facts from which the inference of guilt is to be drawn must be proved beyond reasonable doubt. No greater cogency can be attributed to an inference based upon particular facts than the cogency that can be attributed to each of those facts. Secondly, the inference of guilt must be the only inference which is reasonably open on all the primary facts which the jury finds. The drawing of the inference is not a matter of evidence: it is solely a function of the jury's critical judgment of men and affairs, their experience and their reason. An inference of guilt can safely be drawn if it is based upon primary facts which are found beyond reasonable doubt and if it is the only inference which is reasonably open upon the whole body of primary facts.

Only Deane J. disagreed on this issue (p. 181).

95. I find the position taken by the majority in Chamberlain compelling and consistent with this Court's approach in Nadeau and Thatcher. Moreover, as a matter of strict logic the approach has a lot to commend it. How could one come to a conclusion with any degree of certainty if one has reasonable doubts about the facts upon which the conclusion is based?

96. Was the trial judge in error then in the passages from the charge cited above? In my view, he was. While the trial judge was correct to direct the jury not to use facts that were not proved beyond a reasonable doubt in order to found a conviction, he erred in suggesting (or seeming to suggest) that each fact should be assessed in isolation from the others. What he should have told the jury, in my opinion, is that in their ultimate determination of guilt they could rely only on facts which, when assessed in the context of all the facts, they found to have been proved beyond a reasonable doubt; that they must not make a finding of guilt on doubtful facts; but that facts which might seem doubtful when viewed in isolation might become completely credible against the backdrop of all the other facts.

97. It would be my respectful view that if the trial judge was in error on this point, and I think he was, the Court of Appeal was also in error. The Court of Appeal indicated that the only thing that must be proved beyond a reasonable doubt was the guilt of the accused. The fairly clear implication of the Court of Appeal's judgment is that the facts underlying this conclusion do not themselves require to be proved beyond a reasonable doubt. In my view, this is wrong. It gives the jury no guidance as to what standard of proof it must apply to the fact‑finding exercise. In the absence of direction they might apply a balance of probabilities or even less stringent test. I agree with the Justices of the High Court of Australia that the jury must be instructed at some point in the charge that in making a determination as to the guilt of the accused they must have resort only to facts which, when assessed in the context of all the facts, have been proved to their satisfaction beyond a reasonable doubt. I believe that a jury would have no difficulty in comprehending such a direction since it accords with logic and common sense as well as with the law.

98. In my view then the trial judge's charge to the jury was in error although not for the reasons given by the Court of Appeal. I do, however, agree with my colleague that the trial judge's misdirection mandates the new trial ordered by the Court of Appeal.

Appeal dismissed.

Solicitors for the appellant: Ruby & Edwardh, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

• Le Dain J. took no part in the judgment.

** See Erratum [2002] 2 S.C.R. iv