r. v. s. (w.d.), [1994] 3 S.C.R. 521

W.D.S. Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. S. (W.D.)

File No.: 23478.

1994: May 5; 1994: October 20.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Cory, McLachlin and Major JJ.

on appeal from the court of appeal for alberta

Criminal law ‑‑ Charge to jury ‑‑ Recharge ‑‑ Trial judge responding to question from jury regarding reasonable doubt ‑‑ Whether trial judge erred in recharge ‑‑ If so, whether error constitutes grounds for retrial if main charge free from error ‑‑ Whether verdict convicting accused unreasonable.

The accused was charged with sexually assaulting his twin nieces, who were 12 or 13 at the time of the alleged events, although the charges were not laid until several years later. He was convicted on one count and acquitted on the other. The only evidence presented at the trial pertaining to the assault of which he was convicted was that of the complainant and the accused. The complainant described the alleged incident and stated she avoided her uncle thereafter, but confirmed that she subsequently went to work at a remote resort where she knew her uncle was employed. The accused denied that the incident had ever occurred. In the main charge the trial judge properly instructed the jury on all matters including directions as to the onus resting upon the Crown to prove the case against the accused beyond a reasonable doubt. At the conclusion of the charge, the jury retired to deliberate. Four hours later, they submitted a question to the trial judge stating that "[t]he jury is hung up" and requesting "an explanation of the guideline on the jury's duty regarding evidence and reasonable doubt". In the trial judge's response, he made certain statements that might suggest the jury had to choose between two competing versions, that of the complainants on the one hand and that of the accused on the other. The Court of Appeal dismissed the accused's appeal from his conviction. It was unanimous in its finding that the recharge on the issue of reasonable doubt did not constitute a reversible error. The majority further determined that the verdict was not unreasonable.

Held (L'Heureux‑Dubé and McLachlin JJ. dissenting): The appeal should be allowed and a new trial ordered.

Per Lamer C.J. and La Forest, Sopinka, Cory and Major JJ.: While directions to a jury must always be read as a whole, questions from the jury require careful consideration and must be clearly, correctly and comprehensively answered. A question presented by a jury gives the clearest possible indication of the particular problem that the jury is confronting and upon which it seeks further instructions. Even if the question relates to a matter that has been carefully reviewed in the main charge, it may be that after a period of deliberation, the original instructions have been forgotten or some confusion has arisen in the minds of the jurors. If an error is made in the recharge, then as a general rule the correctness of the original charge cannot be used to excuse the subsequent error on the very issue upon which the jury seeks clarification. The greater the passage of time between the main charge and the question from the jury, the more imperative it is that a correct and comprehensive answer be given. Here, four hours had elapsed between the main charge and the question submitted, and it was therefore essential the response be correct and comprehensive.

Running through the recharge in this case is the notion of choosing between the credibility of the complainant and that of the accused. The approach set out would have conveyed to the jury that they had to believe either the complainant's evidence or that of the accused. This type of either/or approach to credibility is incorrect as it excludes the third alternative, namely that without believing the accused, the jury may still have a reasonable doubt as to his guilt on the whole of the evidence. It shifts the burden of proof to the accused by telling the jury it can only acquit if the accused's story is believed rather than that of the complainant. While the trial judge told the jury several times in the recharge that they had to base their verdict on "the whole of the evidence" and "the whole of the case", the only evidence in this case was the evidence of the complainant and the accused, and those words would thus indicate that the jury had the choice of believing either the complainant's or the accused's evidence. This error in the recharge constitutes a ground for directing a new trial.

In view of this conclusion it is not necessary to consider the question of whether the verdict was unreasonable.

Per L'Heureux‑Dubé and McLachlin JJ. (dissenting): While questions from the jury merit a full, careful and correct response, it is a settled principle that the main charge and the recharge must be read as a whole in determining whether the trial judge misdirected the jury. The task of the Court of Appeal is to determine whether the jury might have been misled by the alleged error, taking into account all relevant circumstances. In this case any error in the recharge could not be saved by the fact that the judge had correctly charged the jury in the first instance, since the recharge was in answer to a question, which may heighten its significance, and it came some hours after the main charge. The trial judge did not err, however, in recharging the jury. He told the jury several times during the recharge that it could only conclude that the Crown had proved its case beyond a reasonable doubt after weighing all of the evidence. In other words, the jury could not resolve the case simply by deciding whether it believed the complainant or the accused. Since the only witnesses were the complainant and the accused, the trial judge did not err in indicating that total rejection of all the accused's evidence, coupled with acceptance of the complainant's evidence, would leave no evidence upon which a reasonable doubt could be based. As well, the trial judge expressly told the jury that their task was not concluded if they rejected the accused's evidence, as they had to go on to ask themselves the further question of whether they entertained a reasonable doubt. Provided that the jury was clearly advised that the case was not a simple credibility contest and that after having considered all the evidence it must consider whether it was left with any reasonable doubt, mention of the competing versions before the jury was not in error.

As there was ample evidence before the jury upon which it could convict, the verdict in this case was not unreasonable.

Cases Cited

By Cory J.

Distinguished: R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; referred to: R. v. Waite (1986), 1986 CanLII 4698 (ON CA), 28 C.C.C. (3d) 326, aff'd 1989 CanLII 104 (SCC), [1989] 1 S.C.R. 1436; R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122; R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3; Linney v. The Queen, 1977 CanLII 170 (SCC), [1978] 1 S.C.R. 646.

By McLachlin J. (dissenting)

R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827; R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; R. v. Desveaux (1986), 1986 CanLII 153 (ON CA), 26 C.C.C. (3d) 88; R. v. Waite (1986), 1986 CanLII 4698 (ON CA), 28 C.C.C. (3d) 326, aff'd 1989 CanLII 104 (SCC), [1989] 1 S.C.R. 1436; R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122; R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(a)(i).

Authors Cited

Gibson, J. L. "Misquote Changes Meaning" (1994), 24 C.R. (4th) 395.

Gibson, Jack. "The Liars' Defence" (1993), 20 C.R. (4th) 96.

Gold, Alan D. "The `Average, Nervous, Inadequate, Inarticulate, in Short, Typical' Accused's Defence" (1993), 22 C.R. (4th) 253.

Gold, Alan D. "Typo Does Not Change Anything" (1994), 24 C.R. (4th) 397.

APPEAL from a judgment of the Alberta Court of Appeal dismissing the accused's appeal from his conviction on a charge of sexual assault. Appeal allowed, L'Heureux‑Dubé and McLachlin JJ. dissenting.

Brian A. Beresh, for the appellant.

Bart Rosborough, for the respondent.

The judgment of Lamer C.J. and La Forest, Sopinka, Cory and Major JJ. was delivered by

Cory J. -- The principal questions raised on this appeal are these: Did the trial judge err in responding to a question from the jury pertaining to reasonable doubt? If so, can it constitute the grounds for a retrial if the main charge was free from error on this issue?

Factual Background

The appellant was charged with two counts of sexual assault against his twin nieces S.D. and V.D. He was acquitted on the count involving V.D. and the Crown took no appeal from that acquittal. He was convicted on the count involving S.D. He appealed his conviction to the Alberta Court of Appeal on two grounds: first, that the trial judge had erred in his recharge to the jury on the issue of reasonable doubt, and secondly, on the basis that the verdict was unreasonable. The appeal was dismissed. McClung J. dissented from that decision, holding that the verdict was unreasonable. The appellant was granted leave to appeal to this Court on the issue of the recharge on reasonable doubt: [1993] 3 S.C.R. ix.

At the time of the trial, which took place in October of 1991, the appellant was 74 years of age. The assault was said to have occurred in the fall of 1986, when the complainant was in grade 7, and was 12 or 13 years of age. At the time, the appellant lived in a house trailer on the farm belonging to the complainants' family. The house where the complainants lived with their parents, two other sisters and a brother was only some 50 metres from the trailer.

S.D. testified that the appellant called her on the telephone and asked her to come over to his trailer to look at some books. She went to the trailer, and looked at the books for a few minutes. She said that the appellant kept moving closer to her. He then stood up and undid his pants. He pushed the complainant over onto her back, and pulled her pants down. He started "playing" with her breasts, and then attempted to enter her with his penis. The complainant tried to push him away and told him to get off. The telephone then rang and the appellant got up to answer it and pulled up his pants. At this point, the complainant left the trailer. S.D. stated she avoided her uncle after the incident. However, she confirmed that subsequent to the alleged assault she went to work at a remote resort where she knew her uncle was employed.

The appellant testified and denied that the incident had ever occurred. There is no suggestion that threats were ever made by the appellant to his nieces. The complaint of S.D. was not made until several years after the incident. After her complaint was made, the police contacted her sister V.D., who also then made a complaint. There was no corroboration for either allegation aside from evidence which was never in dispute that on some occasions the complainants were alone with their uncle.

The only evidence presented at the trial pertaining to the incident was that of the complainant and the appellant. There was no other evidence for the jury to consider.

Proceedings at Trial

It is conceded that in the main charge the trial judge properly instructed the jury on all matters including directions as to the onus resting upon the Crown to prove the case against the appellant beyond a reasonable doubt. At the conclusion of the charge, the jury retired to deliberate. Four hours later, the jury submitted a question to the trial judge. All questions from the jury are extremely important; however, the wording of the question presented in this case emphasizes its fundamental importance for the jury. It was framed in this way:

The jury is hung up and there has been no change in the vote. We would like an explanation of the guideline on the jury's duty regarding evidence and reasonable doubt.

The response of the trial judge to that question gives rise to difficulties presented in this case. He stated:

The accused is entitled to a reasonable doubt on the issue of credibility; who is to be believed, either complainant in each of the counts or the accused. If you cannot reject his evidence, it must raise a reasonable doubt. If you believe his evidence, it raises a reasonable doubt. If you reject his evidence, in comparison to the evidence of either of the complainants and that complainant's evidence is accepted by you as being true, then you convict.

It's as simple to say it as that. I know it is difficult to work out. You have two stories here. You have to decide whether one is strong enough -- one of the complainants' evidence is strong enough to convince you of the guilt, and you can reject the accused's evidence. If it isn't that strong and you can't reject the accused's evidence, you must have a reasonable doubt. If it is that strong, and you can reject the accused's evidence, you should be able to say, I am convinced beyond a reasonable doubt.

Now, I don't know what -- if you want me to deal with evidence any further, any point of evidence or just what your duties are with respect to the evidence. I will tell you what they are. You weigh all of the evidence, and you look at the whole case, and you say, looking at everything, Am I convinced beyond a reasonable doubt that her evidence is correct and his evidence can't be accepted, and you do that with each count.

Following these remarks it appears from the transcript that some members of the jury were confused because the trial judge added these words:

I see some nodding yes; I see some still wondering, but I know you have a difficult task, but you must seize it and deal with it as best you can.

At the conclusion of these remarks, the jury then retired and continued its deliberations for another 4½ hours. They then returned and delivered the verdict acquitting the accused of the charge of assaulting V.D. but convicting him of the assault upon S.D.

The Court of Appeal

The Court of Appeal was unanimous in its finding that the recharge on the issue of reasonable doubt did not constitute a reversible error. The majority further determined that the verdict was not unreasonable. McClung J.A. in dissent would have allowed the appeal on the ground that the verdict of the jury was unreasonable.

The appellant brought an appeal as of right to this Court on the question of unreasonable verdict. As well he sought and obtained leave to appeal on the issue of the recharge on reasonable doubt.

Analysis

Significance and Importance of Questions from the Jury

It is true that directions to a jury must always be read as a whole; however, it cannot ever be forgotten that questions from the jury require careful consideration and must be clearly, correctly and comprehensively answered. This is true for any number of reasons which have been expressed by this Court on other occasions. A question presented by a jury gives the clearest possible indication of the particular problem that the jury is confronting and upon which it seeks further instructions. Even if the question relates to a matter that has been carefully reviewed in the main charge, it still must be answered in a complete and careful manner. It may be that after a period of deliberation, the original instructions, no matter how exemplary they were, have been forgotten or some confusion has arisen in the minds of the jurors. The jury must be given a full and proper response to their question. The jury is entitled to no less. It is the obligation of the trial judge assisted by counsel to make certain that the question is fully and properly answered.

The importance of giving a full and proper response to questions from the jury has been recognized by this Court on a number of occasions. In R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 759-60, the following was stated on behalf of the majority:

When a jury submits a question, it gives a clear indication of the problem the jury is having with a case. Those questions merit a full, careful and correct response. As well, the answer should remind the jury of its instructions given in the course of the main charge. See R. v. Desveaux (1986), 1986 CanLII 153 (ON CA), 26 C.C.C. (3d) 88 (Ont. C.A.), at p. 93, where it was said:

Questions from a jury manifest their concern and indicate their desire for direction on a particular issue. The trial judge should read the question to counsel and obtain their submissions as to the response that should be made. It is then incumbent on the trial judge to answer the question in a complete and reasonably detailed manner. It is unfair to the parties and the jury to attempt a short form answer to a problem that is obviously presenting difficulties. The definitions requested had been adequately set out early in the charge. However, memories are short and much had intervened in the way of directions and recharges before the question was submitted. The original instructions should have been repeated in the response.

R. v. Waite (1986), 1986 CanLII 4698 (ON CA), 28 C.C.C. (3d) 326 (Ont. C.A.), affirmed 1989 CanLII 104 (SCC), [1989] 1 S.C.R. 1436, involved a recharge in response to a question from the jury approximately two hours into its deliberations. At page 329, the Ontario Court of Appeal held:

It is reasonable to assume that not all parts of a charge will be remembered with great particularity by a jury. A question such as the one posed in this case indicates an area of concern for the members of the jury. No matter how careful and extensive the original directions, the question, focusing as it does upon the jury's problem, should be answered carefully and completely even if these later directions seem to be repetitious.

In this case, the directions were of great importance for they were given in response to a question from the jury on a matter that was obviously worrying them.

Answers to questions from the jury are extremely important, and carry influence far exceeding instructions given in the main charge. If the jury asks a question about an issue addressed in the main charge, it is clear that they did not understand or remember that part of the main charge, and it is also clear that they must exclusively rely on the answer given by the trial judge to resolve any confusion or debate on the point which may have taken place in the jury room during their deliberations up to that point.

In R. v. Pétel, supra, Lamer C.J., writing for the majority, stated at p. 15:

The importance of adequately answering questions put by the jury should be borne in mind: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 759-60. The question will generally relate to an important point in the jury's reasoning, so that any error the judge may make in answering it becomes all the more damaging. It is often necessary to repeat certain aspects of the main charge in order to place the specific question in a more general context.

There can be no doubt about the significance which must be attached to questions from the jury and the fundamental importance of giving correct and comprehensive responses to those questions. With the question the jury has identified the issues upon which it requires direction. It is this issue upon which the jury has focused. No matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive. No less will suffice. The jury has said in effect, on this issue there is confusion, please help us. That help must be provided.

If an error is made, then as a general rule, the correctness of the original charge cannot be used to excuse the subsequent error on the very issue upon which the jury seeks clarification. It would be irrational to conclude that although the trial judge has erred on a recharge on the very point on which the jury had been confused or forgetful, the mistake is of little consequence because some time ago a correct charge was given. Such reasoning would be unfair to the jury and unjust to the parties. When the jury submits a question it must be assumed that the jurors have forgotten the original instructions or are in a state of confusion on the issue. Their subsequent deliberations will be based on the answer given to their question. That is why the recharge must be correct and why a faultless original charge cannot as a rule rectify a significant mistake made on the recharge.

To this I would add that obviously the greater the passage of time that has elapsed between the main charge and the question from the jury, the more imperative it is that a correct and comprehensive answer be given. Here, four hours had elapsed between the main charge and the question submitted from the jury. It was therefore essential the response be correct and comprehensive. Let us now consider the recharge given in this case.

Was the Charge Erroneous?

In this case all the evidence presented at trial was that of the complainant and the appellant. There was nothing else before the jury. It therefore was essential that the jury, which had advised the judge that it was "hung up" on the issue of reasonable doubt, be properly directed with regard to the issue.

This was vital since this case turned completely on the question of credibility and the correct consideration by the jury of the onus of proof resting upon the Crown of proving the charge beyond a reasonable doubt.

In R. v. W. (D.), supra, this Court considered the manner in which a jury should be charged on the principle of reasonable doubt. Writing for the majority, I attempted to set out a procedure or sequence which would be appropriate in directing a jury in a case where the accused had testified. At pages 757-58 of that case, the following appears:

It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

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

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

Third, 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.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.

Nonetheless, the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply: R. v. Thatcher, supra. [Emphasis in original.]

(See also Linney v. The Queen, 1977 CanLII 170 (SCC), [1978] 1 S.C.R. 646, at pp. 650-51.)

Obviously, it is not necessary to recite this formula word for word as some magic incantation. However, it is important that the essence of these instructions be given. It is erroneous to direct a jury that they must accept the Crown's evidence or that of the defence. To put forward such an either/or approach excludes the very real and legitimate possibility that the jury may not be able to select one version in preference to the other and yet on the whole of the evidence be left with a reasonable doubt. The effect of putting such a position to the jury is to shift a burden to the accused of demonstrating his or her innocence, since a jury might believe that the accused could not be acquitted unless the defence evidence was believed.

It seems to me that the recharge in this case suffers from the same flaw as the recharge in R. v. W. (D.), supra. It will be remembered that in that case the trial judge instructed the jury on the recharge that the issue that they had to decide was whether they believed the accused or the complainant. Directions such as that exclude what has sometimes been referred to as the "third alternative"; namely, that without believing the accused, the jury, upon considering the evidence of accused in the context of all of the evidence, may have a reasonable doubt as to his guilt.

Running through the recharge in this case is the notion of choosing between the credibility of the complainant and that of the accused. The confusing and erroneous provisions are underlined in the three paragraphs of the recharge which for convenience are set out below.

1.The accused is entitled to a reasonable doubt on the issue of credibility; who is to be believed, either complainant in each of the counts or the accused. If you cannot reject his evidence, it must raise a reasonable doubt. If you believe his evidence, it raises a reasonable doubt. If you reject his evidence, in comparison to the evidence of either of the complainants and that complainant's evidence is accepted by you as being true, then you convict.

2. It's as simple to say it as that. I know it is difficult to work out. You have two stories here. You have to decide whether one is strong enough -- one of the complainants' evidence is strong enough to convince you of the guilt, and you can reject the accused's evidence. If it isn't that strong and you can't reject the accused's evidence, you must have a reasonable doubt. If it is that strong, and you can reject the accused's evidence, you should be able to say, I am convinced beyond a reasonable doubt.

3. Now, I don't know what -- if you want me to deal with evidence any further, any point of evidence or just what your duties are with respect to the evidence. I will tell you what they are. You weigh all of the evidence, and you look at the whole case, and you say, looking at everything, Am I convinced beyond a reasonable doubt that her evidence is correct and his evidence can't be accepted, and you do that with each count. [Emphasis added.]

In the first paragraph, the trial judge seems to have attempted to put the three‑part instructions set out in R. v. W. (D.) to the jury. However, two problems are apparent. First, the reference to believing either the complainant or the accused might have suggested to the jury that all they had to do was decide which of the accused or the complainant they believed. Such an approach would exclude the third alternative, with the result that the jury would not apply the reasonable doubt standard to the accused's evidence. Second, in the last sentence of the first paragraph, the trial judge refers to rejecting the accused's evidence "in comparison to the evidence of either of the complainants". This again suggests a credibility contest, where the jury must choose which of the two versions it believes.

The errors in the second and third paragraphs are more significant. The approach set out in both those paragraphs would have conveyed to the jury that they had to believe either the complainant's evidence or that of the accused. The jury was told that if the complainant's evidence was strong enough, they could reject the evidence of the accused. From this instruction, the jury would have understood that they had to decide which story was stronger, and act on that one. That approach is incorrect. It was just this type of either/or approach to credibility which was rejected in R. v. W. (D.). It excludes the "third alternative"; that is to say, that although a jury may not believe an accused, it may still have a reasonable doubt on the whole of the evidence. It shifts the burden of proof to the accused by telling the jury it can only acquit if the accused's story is believed rather than that of the complainant.

It is true that the trial judge told the jury several times in the recharge that they had to base their verdict on "the whole of the evidence" and "the whole of the case". However, in this case the whole of the evidence was the evidence of the complainant and the accused. Thus, those words would not have conveyed the correct standard of proof to the jury. Rather they would indicate that the jury had the choice to believe either the complainant's or the accused's evidence. The errors in this recharge could have been avoided if the trial judge had followed the outline set out in R. v. W. (D.).

The Effect of the Correct Instructions Given During the Main Charge

It has been seen that the directions on the recharge on this vitally important issue were in error. Nonetheless, it was argued by the respondent that the charge must be looked at as a whole, and in light of the correct instructions given at the time of the main charge that the error in the recharge does not constitute a ground for directing a new trial. It was argued that the case of R. v. W. (D.), supra, supported the position of the respondent. I cannot agree with that contention.

In R. v. W. (D.), there were a number of factors which led to a conclusion that the charge as a whole would not have misled the jury as to the issue of reasonable doubt. In that case the main charge was not only correct but repeated on a number of occasions the proper directions pertaining to the burden of proof and the issue of reasonable doubt. As well there was a very short delay of less then 10 minutes between the main charge and the recharge. Further the recharge was not given in response to a question from the jury. The situation was summarized in this way at pp. 759-60:

Fourth, there was a very short delay between the one-hour long correctly given main charge and the 11-minute recharge. The time that elapsed between the end of the main charge and the beginning of the recharge could not have been more than ten minutes.

Fifth, the recharge was not the result of a question from the jury. When a jury submits a question, it gives a clear indication of the problem the jury is having with a case. Those questions merit a full, careful and correct response. . . .

If the error had occurred in the course of a response to a question from the jury or if the recharge had been given some hours after the main charge, a new trial would have to be ordered. However, in the case at bar, the jury had not yet begun its deliberations and the main charge, correctly and fairly given, had been completed just a few minutes earlier. The correct instructions as to the burden of proof must have been fresh in the minds of the jury at the time of the recharge. [Emphasis added.]

How very different is the case at bar. Here the jury had been deliberating for four hours after the conclusion of the main charge. Further, not only was there a question from the jury but it began with the disclosure that the jury was "hung up" on the very issue upon which the directions were sought. In these circumstances it was essential that clear, correct and comprehensive instructions be given in response to the question. The instructions given were incorrect. In these circumstances it would be irrational to hold that correct instructions given four hours earlier could remedy the error. The only inference that can be drawn is that the jury followed the directions given in response to their question. Those directions were incorrect. They did not follow the outline suggested in R. v. W. (D.), supra.

It follows that a new trial must be directed. In light of this conclusion it is not necessary to consider the question of whether the verdict was unreasonable.

Summary

The manner in which questions from the jury should be handled may be summarized in this way:

1.All questions received from the jury must be considered to be of significance and important.

2.Counsel must be advised of the question and their submissions heard as to the nature and content of the response.

3.The answer to the question must be correct and comprehensive. Even if the issue was covered in the original charge it must, in its essence, be repeated even if this seems to be repetitious.

4.No precise formula need be used but the response to the question must always be accurate and complete.

5.The longer the delay the more important it will be that the recharge be correct and comprehensive. As a general rule an error in the recharge on the question presented will not be saved by a correct charge which was given earlier. The question indicates the concern or confusion of the jury. It is that concern or confusion which must be correctly addressed on the recharge.

Disposition

The appeal is allowed. The order of the Court of Appeal upholding the conviction is set aside and a new trial is directed.

The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by

McLachlin J. (dissenting) -- In January 1991, the appellant was charged with two counts of sexual assault against his twin nieces, S.D. and V.D. The jury convicted him of sexually assaulting S.D. and acquitted him of sexually assaulting V.D. The girls were 12 or 13 at the time of the alleged events; the charges were laid three or four years later.

The Trial

S.D. testified that her uncle, who lived in a trailer on her parents' farm, called her by telephone and asked her to come over to his trailer to "look at some books". It was evening but still light out. She went to the trailer and found her uncle alone inside. She sat down on the couch in the living room and looked at some books. She noticed that her uncle kept moving closer and closer to her on the couch. At one point, the cat that had been sitting on her lap jumped off and the appellant stood up. He began undoing his pants and pulled them down to his knees. He pushed her over on the couch and pulled down her trousers and underwear, and "then he got on top of me". He began "playing" with her breasts and attempted intercourse. She tried to push him away and told him to get off her. She was too scared to attempt to call others. Just then, the telephone in the trailer rang. The appellant pulled up his pants and went to the kitchen to answer the telephone, and S.D. left the trailer.

For her part, V.D. testified that the appellant had put his arm around her shoulder and fondled her breast for 10 to 15 minutes.

The appellant testified that the events had never occurred.

The jury was charged fairly and fully. After a short period of deliberation, the jury put a question to the trial judge, which was answered. About two hours later, the jury sent a second message to the judge:

The jury is hung up and there has been no change in the vote. We would like an explanation of the guideline on the jury's duty regarding evidence and reasonable doubt.

The judge responded, reinstructing the jury on reasonable doubt and credibility:

The accused is entitled to a reasonable doubt on the issue of credibility; who is to be believed, either [the] complainant in each of the counts or the accused. If you cannot reject his evidence, it must raise a reasonable doubt. If you believe his evidence, it raises a reasonable doubt. If you reject his evidence, in comparison to the evidence of either of the complainants and that complainant's evidence is accepted by you as being true, then you convict.

It's as simple to say it as that. I know it is difficult to work out. You have two stories here. You have to decide whether one is strong enough -- one of the complainants' evidence is strong enough to convince you of the guilt, and you can reject the accused's evidence. If it isn't that strong and you can't reject the accused's evidence, you must have a reasonable doubt. If it is that strong, and you can reject the accused's evidence, you should be able to say, I am convinced beyond a reasonable doubt.

Now, I don't know what -- if you want me to deal with evidence any further, any point of evidence or just what your duties are with respect to the evidence. I will tell you what they are. You weigh all of the evidence, and you look at the whole case, and you say, looking at everything, Am I convinced beyond a reasonable doubt that her evidence is correct and his evidence can't be accepted, and you do that with each count. [Emphasis added.]

The jury deliberated 4½ hours more, and returned with verdicts of guilty on Count 1 (relating to S.D.) and not guilty on Count 2 (relating to V.D.).

The Appeal

The appellant appealed his conviction on the charge involving S.D. to the Alberta Court of Appeal, alleging: (1) that the trial judge had erred in his response to the jury's question on evidence and reasonable doubt by telling the jury in effect that it must choose between two competing versions -- that of the complainants on the one hand, and that of the accused on the other; and (2) that the verdict was unreasonable. The Court of Appeal upheld the verdict, McClung J.A. dissenting.

On the first ground, the Court of Appeal was unanimous in its finding that, viewed globally, the trial judge did not misdirect the jury. Fraser C.J.A. stated for the court:

We are satisfied that the jury could not have understood that it was obligated to choose between two competing versions --- that involving the complainant's evidence on the one hand, and that of the appellant's on the other. Therefore, we are unanimously of the view that this ground of appeal must fail.

On the second ground, the majority rejected the submission that the verdict was unreasonable. Referring to the alleged weaknesses in S.D.'s evidence, it concluded that the jury had before it explanations which it was entitled to accept:

. . . the jury had ample opportunity to evaluate [S.D.'s] stated explanations for her actions in the context of all the other evidence in this case.

The majority saw no merit in the allegation that the two verdicts were inconsistent:

The fact that the jury chose to acquit the appellant on one charge of sexual assault against [S.D.'s] sister, [V.D.], in circumstances essentially unrelated to the assaults involving [S.D.], is in our view irrelevant. That decision does not warrant an acquittal in this case anymore than the jury's conviction in this case would warrant a conviction on the count involving [V.D.].

McClung J.A. in short dissenting reasons expressed the view that the two verdicts were arguably inconsistent and referred to the fact that S.D. had accepted work after the alleged events at a resort where her uncle was working as "difficult to reconcile with an assault having happened at all". He would have allowed the appeal on the ground that the conviction was "patently dangerous to maintain".

The appellant appealed as of right to this Court on the point of law raised by the dissent: that the verdict was unreasonable. Leave to appeal was granted on a second ground of appeal, the alleged error in the judge's answer to the jury question.

Analysis

The Verdict Issue

Section 686(1)(a)(i) of the Criminal Code, R.S.C., 1985, c. C-46, permits a court of appeal to set aside a conviction where it is unreasonable or not supported by the evidence:

686. (1) On the hearing of an appeal against a conviction . . . the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

I agree with the majority of the Court of Appeal that this ground of appeal is not made out. There was ample evidence before the jury upon which it could convict on the charge involving S.D. The alleged frailties in her evidence were explored in cross-examination and evident to the jury. The most telling point, it was said, was that after the alleged incident S.D. accepted a job at a remote lodge knowing that her uncle was employed there. Questioned about why she had done so, S.D. replied that she took the view she should have the right to go and work where she wanted. This explanation was before the jury. The jury was entitled to accept it. McClung J.A. apparently would not have accepted it. But that task was the jury's. The fact that a judge might come to a different conclusion on the evidence than the jury apparently did does not permit a verdict to be set aside on the ground that it is unreasonable. For further elaboration on this point, reference may be had to my reasons in R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827.

Nor was the verdict unreasonable by reason of inconsistency. There was no inconsistency. The jury evidently chose to believe one witness testifying to one set of events, while entertaining a reasonable doubt on another witness's evidence as to other events.

The Alleged Error in the Judge's Answer to the Jury's Question

The main issue is whether the Court of Appeal erred in concluding that the judge's response to the jury's question, viewed in conjunction with the main charge, did not offend the rule against winnowing and competing stories.

Although questions from the jury merit full, careful and correct response, it is a settled principle that the main charge and recharge must be read as a whole in determining whether the trial judge misdirected the jury. As a result, a small error in a recharge made shortly after a faultless charge might not vitiate a verdict. On the other hand, a significant error in response to a question at a time when the original instructions may have dimmed in the jury's memory might vitiate the trial: see R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The task of the Court of Appeal is to determine whether the jury might have been misled by the alleged error, taking into account all relevant circumstances.

In the case at bar, an error in the recharge could not be saved by the fact that the judge had correctly charged the jury in the first instance. The recharge was in answer to a question which may heighten its significance: R. v. Desveaux (1986), 1986 CanLII 153 (ON CA), 26 C.C.C. (3d) 88 (Ont. C.A.), per Cory J.A.; R. v. Waite (1986), 1986 CanLII 4698 (ON CA), 28 C.C.C. (3d) 326 (Ont. C.A.), affirmed 1989 CanLII 104 (SCC), [1989] 1 S.C.R. 1436; R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122; and R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3, per Lamer C.J. Moreover, it came some hours after the main charge.

It is therefore necessary to consider whether in fact the trial judge erred in recharging the jury. The reproach brought against the recharge is that the trial judge defined reasonable doubt in terms of an either-or proposition -- either you believe the complainant or you believe the appellant. This would be contrary to the principle that the jury may accept all of a witness's evidence, part of a witness's evidence, or none of a witness's evidence. It would also be contrary to the obligation of the jury to acquit if any of the evidence, even that which they may not unequivocally accept, leaves them with a reasonable doubt as to the guilt of the accused. As Cory J. put it in R. v. W. (D.), supra, at pp. 757-58:

A trial judge might well instruct the jury on the question of credibility along these lines:

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

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

Third, 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.

In short, the appellant's argument is that the second and/or the third branch of Cory J.'s statement was not put to the jury.

I note in passing that the second branch as stated by Cory J. has given rise to some academic debate: J. Gibson, "The Liars' Defence" (1993), 20 C.R. (4th) 96; A. D. Gold, "The `Average, Nervous, Inadequate, Inarticulate, in Short, Typical' Accused's Defence" (1993), 22 C.R. (4th) 253; J. L. Gibson, "Misquote Changes Meaning" (1994), 24 C.R. (4th) 395; and A. D. Gold, "Typo Does Not Change Anything" (1994), 24 C.R. (4th) 397. It has been suggested that if one rejects the evidence of the accused, it is logically inconsistent to have a reasonable doubt with respect to it. Such a doubt, it is argued, would not be reasonable. Certainly if the jury rejected (as opposed to merely being undecided about) all of the evidence of the accused, it is difficult to see how that very evidence, having been rejected, could raise a reasonable doubt. However, a jury could reject part of the evidence of the accused and still reasonably entertain a doubt as to his guilt based on other parts of the accused's evidence, which the jury did not reject, but either accepted or was undecided about. It is in the latter sense that I read the second condition of Cory J. I note also that immediately preceding his three-part statement of the rule, Cory J. states the rule in two branches, rolling the second and third branch of the three-part statement into one (at p. 757):

Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [Emphasis in original.]

I raise this point only for one purpose: when scholars of the criminal law themselves argue about how the second branch of the W. (D.) test should be phrased, it would be wrong to reverse a conviction merely because a particular formula was not repeated verbatim. We must remember that jurors are laypeople, not lawyers, and do not hear and interpret each and every word of the judge's charge with all the legal baggage that a career in the law may engender. An overly legalistic focus on the strict text of the judge's charge does not take this courtroom reality into account, nor accommodate the fact that the judge may have to formulate his or her remarks in various ways in order to make the jury understand that it must acquit regardless of what evidence it may accept or reject if it is left with a reasonable doubt when considering that evidence as a whole. What is required, to quote Sopinka J. in R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 362, is that the "charge alerts [the jury] 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".

Against this backdrop, I return to the judge's recharge to the jury in this case. The judge told the jury several times during the recharge that proof beyond a reasonable doubt could only be arrived at by weighing all of the evidence. In other words, the jury could not resolve the case simply by deciding whether it believed the complainant or the accused. The trial judge did, however, at one point make the following statement:

The accused is entitled to a reasonable doubt on the issue of credibility; who is to be believed, either [the] complainant in each of the counts or the accused. If you cannot reject his evidence, it must raise a reasonable doubt. If you believe his evidence, it raises a reasonable doubt. If you reject his evidence, in comparison to the evidence of either of the complainants and that complainant's evidence is accepted by you as being true, then you convict.

While the last sentence in this passage at first glance seems to contradict the second and/or third branch of Cory J.'s three-part test in W. (D.), it was not incorrect on the facts of this case. Since the only witnesses were the complainant and the accused, total rejection of all the accused's evidence coupled with acceptance of the complainant's evidence would leave no evidence upon which a reasonable doubt could be based. Any doubt would not be founded on the evidence and would therefore be unreasonable. So this aspect of the trial judge's instruction was not in error.

Any doubt was removed by the passages that followed immediately after, which make it clear that at the end of the day, whether it accepts or rejects the accused's evidence, the jury must be convinced beyond a reasonable doubt:

You have to decide whether . . . [the complainant's] evidence is strong enough to convince you of the guilt, and you can reject the accused's evidence. If it isn't that strong and you can't reject the accused's evidence, you must have a reasonable doubt. If it is that strong, and you can reject the accused's evidence, you should be able to say, I am convinced beyond a reasonable doubt. [Emphasis added.]

In this passage, the trial judge expressly tells the jury that their task is not concluded if they reject the accused's evidence. They must go on to ask themselves the further question of whether they entertain a reasonable doubt. This complies fully with the second and/or third branch of Cory J.'s three-part test in R. v. W. (D.). My colleague Cory J., relying on this passage, says (at p. 535) "[t]he jury was told that if the complainant's evidence was strong enough, they could reject the evidence of the accused". With respect, I cannot read the passage in this way. The trial judge did not say that acceptance of the complainant's evidence would allow the jury to reject the accused's evidence. Rather he was addressing the possibility that the jury might (1) find the complainant's evidence strong enough to establish guilt, and (2) reject the evidence of the accused. This purpose was to tell the jury that even in that situation, it could not convict unless it could say, "we are convinced beyond a reasonable doubt". The trial judge went on to emphasize the need to look at all the evidence in determining reasonable doubt:

You weigh all of the evidence, and you look at the whole case, and you say, looking at everything, Am I convinced beyond a reasonable doubt that her evidence is correct and his evidence can't be accepted, and you do that with each count. [Emphasis added.]

With all due respect, it would appear that Justice Cory has interpreted the above two excerpts of the judge's charge to read as follows:

You have to decide whether . . . [the complainant's] evidence is strong enough to convince you of the guilt, so that you can reject the accused's evidence. If it isn't that strong and you can't reject the accused's evidence, you must have a reasonable doubt. If it is that strong, so that you can reject the accused's evidence, you should be able to say, I am convinced beyond a reasonable doubt.

You weigh all of the evidence, and you look at the whole case, and you say, looking at everything, Am I convinced beyond a reasonable doubt that her evidence is correct so that his evidence can't be accepted, and you do that with each count. [Emphasis added to substituted term.]

Admittedly, there is no way of knowing for sure the impression left on the jury by these portions of the recharge. On balance, however, when the actual remarks are placed in the context of the totality of the judge's recharge, I would lean towards saying that the impression left on the jury was consistent with the words actually used in the judge's recharge and not with the possible interpretation raised by Cory J.

Finally, I note that the fact that the jury convicted the appellant on one count and acquitted him on the other is consistent with the view that the jury understood that it had to acquit if it was left in reasonable doubt, whether or not it believed the testimony of the accused.

Having considered the impugned passages of the trial judge's recharge and found them not to violate the requirements of law, I turn to the question of whether viewed globally the trial judge over-emphasized the credibility contest between the complainant and the accused. I cannot conclude that he did. He repeatedly told the jury that they must look to all of the evidence in determining reasonable doubt. He indicated that Crown evidence which they accepted might nevertheless leave them with a reasonable doubt, and that rejection of the accused's evidence still left open the possibility of a reasonable doubt. These propositions are inconsistent with the view that the jury's task was to choose between the complainant on the one hand and the accused on the other. In the context of this case, where the only Crown witnesses were the complainants and the only defence witness was the accused, explanation of the law and how it applied necessarily involved reference to the evidence of the complainants on the one hand and the evidence of the accused on the other. But provided that the jury was clearly advised that the case was not a simple credibility contest and that after having considered all the evidence it must consider whether it was left with any reasonable doubt, mention of the competing versions before the jury was not in error.

Disposition

I would dismiss the appeal.

Appeal allowed, L'Heureux‑Dubé and McLachlin JJ. dissenting.

Solicitors for the appellant: Beresh, Depoe, Cunningham, Edmonton.

Solicitor for the respondent: Bart Rosborough, Edmonton.