R. v. Charemski, [1998] 1 S.C.R. 679

Janusz Charemski Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Charemski

File No.: 26033.

Hearing and judgment: February 26, 1998.

Reasons delivered: April 9, 1998.

Present: Cory, McLachlin, Iacobucci, Major and Bastarache JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Directed verdict ‑‑ Circumstantial evidence ‑‑ Cause of death unknown ‑‑ Trial judge directing verdict of acquittal because no reasonable jury could return a verdict of guilty given evidentiary gap as to causation ‑‑ Whether a directed verdict of acquittal should have been made.

This appeal arises from the directed verdict of acquittal of the accused who was charged with the murder of his estranged wife. That directed verdict was based on the trial judge’s finding that the Crown had failed to adduce any evidence with respect to one of the essential elements of the crime of murder, causation. The forensic evidence failed to establish definitively that the deceased had died from natural causes, or as a result of an accident, suicide, or homicide. There was no physical evidence in the deceased’s apartment of foul play or that the accused had been in the apartment on the night she died. However, the body had been found in a bathtub with the head near the faucets and with evidence of hot-water scalding on the skin. The Crown adduced evidence that the deceased had had affairs with other men and that the parties had a joint life insurance policy of which the accused was the beneficiary. The Crown also established that the accused was in the lobby of the deceased’s apartment building on the night in question. The trial judge granted the motion for directed verdict after concluding that there was no evidence that the deceased had been murdered. He concluded that this gap would preclude any reasonable jury from returning a verdict of guilty. The Court of Appeal set the directed verdict aside and ordered a new trial.

Held (McLachlin and Major JJ. dissenting): The appeal should be dismissed.

Per Cory, Iacobucci and Bastarache JJ.: The Crown tendered substantial evidence that the accused had both the opportunity and the motive to kill his wife. This evidence directly related to the elements of identity and the requisite mental state for the crime of murder. Moreover, there was some evidence going to the issue of causation. The position and condition of the body as found, although not conclusive on the issue of causation, could have led to the inference that the deceased was the victim of foul play. There was also evidence that the accused had premature knowledge of the manner of death. On being questioned by the police shortly after the death, the accused volunteered that the victim had complained to him previously about falling asleep and nearly drowning in the bathtub. This statement was made prior to any indication by the police of the cause of death.

The fact that this evidence is circumstantial does not mean that it should be kept from the jury. The trial judge should have directed the jury in accordance with the rule that a finding of guilt could only be reached where there is no other rational explanation but that the accused committed the crime. Making that finding is essentially a factual matter arising from an evaluation of the evidence. That assessment is properly left to the jury. Contrary to the finding of the trial judge, there was circumstantial evidence pertaining to the element of causation. Thus, there was no “gap”. In any event, whether there is a “gap” is largely a question of fact to be left to a jury properly charged. Judges should not be hasty to encroach on that time‑honoured function.

Per McLachlin and Major JJ. (dissenting): The test for a directed verdict in Canada remains whether a properly instructed jury acting reasonably could find guilt beyond a reasonable doubt. Where it is necessary to engage in a limited evaluation of inferences in order to answer this question, as in cases based on circumstantial evidence, trial judges may do so; indeed, they cannot do otherwise in order to discharge their obligation of determining whether the Crown has established a case that calls on the accused to answer or risk being convicted.

The Crown must adduce sufficient evidence on the issues of identity, causation, the death of the victim and the requisite mental state to pass the hurdle of a motion for a directed acquittal. “Sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to “sufficient evidence” is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt. In addition, a relationship exists between the elements of identity, causation, the death of victim and requisite mental state. “Identity” means “identity of the murderer”. Similarly, the element of mental state presupposes a culpable homicide. The finding that there has been a homicide or culpable cause of death is critical, therefore, in order to speak of identity or mental state. The evidence here was not capable of supporting an inference, beyond a reasonable doubt, that the death was wrongful. The evidence, taken as a whole, was not capable of supporting the conclusion that the accused was guilty beyond a reasonable doubt. Accordingly, the trial judge did not err in allowing the motion for a directed verdict.

Cases Cited

By Bastarache J.

Applied: United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067; considered: R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154; referred to: R. v. Comba, 1938 7 (SCC), [1938] S.C.R. 396; Hodge’s Case (1838), 1838 1 (FOREP), 2 Lewin 227, 168 E.R. 1136; R. v. Paul, 1975 185 (SCC), [1977] 1 S.C.R. 181; John v. The Queen, 1970 199 (SCC), [1971] S.C.R. 781; R. v. Cooper, 1977 11 (SCC), [1978] 1 S.C.R. 860; Mezzo v. The Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802.

By McLachlin J. (dissenting)

United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067; Mezzo v. The Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802; R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154; Ryder v. Wombwell (1868), L.R. 4 Ex. 32; Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193; R. v. Morabito, 1949 1 (SCC), [1949] S.C.R. 172; Curley v. United States, 160 F.2d 229 (1947); United States v. Taylor, 464 F.2d 240 (1972); United States v. Martinez, 922 F.2d 914 (1991); Jackson v. Virginia, 443 U.S. 307 (1979); Tibbs v. Florida, 457 U.S. 31 (1982); R. v. Comba, 1938 7 (SCC), [1938] S.C.R. 396; Hodge’s Case (1838), 1838 1 (FOREP), 2 Lewin 227, 168 E.R. 1136.

Statutes and Regulations Cited

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

Authors Cited

Delisle, Ronald Joseph. Evidence: Principles and Problems, 3rd ed. Scarborough, Ont.: Carswell, 1993.

Delisle, Ronald Joseph. “Evidence — Tests for Sufficiency of Evidence: Mezzo v. The Queen” (1987), 66 Can. Bar Rev. 389.

Fishman, Clifford S. Jones on Evidence: Civil and Criminal, 7th ed. Rochester, N.Y.: Lawyers Cooperative Publishing, 1992.

Gillies, Peter. Law of Evidence in Australia, 2nd ed. Sydney: Legal Books, 1991.

McCormick on Evidence, vol. 2, 4th ed. By John William Strong, General Editor. St. Paul, Minn.: West Publishing, 1992.

McWilliams, Peter K. Canadian Criminal Evidence, 3rd ed. Aurora, Ont.: Canada Law Book, 1988 (loose‑leaf updated November 1997).

Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.

Tanovich, David M. “Monteleone’s Legacy: Confusing Sufficiency with Weight” (1994), 27 C.R. (4th) 174.

Tapper, Colin. Cross and Tapper on Evidence, 8th ed. London: Butterworths, 1995.

APPEAL from a judgment of the Ontario Court of Appeal, [1997] O.J. No. 1942 (QL), setting aside a directed verdict of acquittal by Flinn J. Appeal dismissed, McLachlin and Major JJ. dissenting.

Clay M. Powell, Q.C., and Gordon D. Cudmore, for the appellant.

Susan G. Ficek, for the respondent.

The judgment of Cory, Iacobucci and Bastarache JJ. was delivered by

Bastarache J.

[1] Bastarache J. -- The main question in this appeal is whether the Court of Appeal erred in setting aside the trial judge’s directed verdict of acquittal. In my opinion, it did not. As will be shown below, when the evidence is assessed in light of the correct test for a directed verdict, the appeal should be dismissed.

The “No Evidence” Test

[2] The leading case on the issue of directed verdicts is United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, which sets out the test to determine whether a case should go to a jury in these terms, at p. 1080: “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”. See also R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154, at p. 160. In other words, a motion for a directed verdict should not be granted “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”. See Shephard, at p. 1080.

[3] For there to be “evidence upon which a reasonable jury properly instructed could return a verdict of guilty” in accordance with the Shephard test (at p. 1080), the Crown must adduce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden. See Sopinka et al., The Law of Evidence in Canada (1992), at p. 136. Thus, in a murder prosecution, the Crown must adduce evidence on the issues of identity, causation, the death of the victim and the requisite mental state. If the Crown fails to adduce any evidence to discharge the evidential burden on any of these issues, the trial judge should direct a verdict of acquittal.

[4] There was, at one time, some confusion about the applicability of this test where the Crown’s case with respect to any or all of the elements of the crime rested entirely on circumstantial evidence. In R. v. Comba, 1938 7 (SCC), [1938] S.C.R. 396, at p. 397, it was suggested that where the Crown’s case rests on circumstantial evidence, the trial judge can himself apply the rule in Hodge’s Case (1838), 1838 1 (FOREP), 2 Lewin 227, 168 E.R. 1136, (i.e., that to convict on circumstantial evidence, the evidence must not permit any other rational conclusion but that the accused is guilty) and direct a verdict. Any confusion on this point was cleared up by this Court’s unanimous judgment (McIntyre J. writing for Dickson C.J. and Estey, Lamer (as he then was), Wilson, Le Dain, and La Forest JJ.) in Monteleone, supra, at p. 161:

Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury. [Emphasis added.]

Where the evidence is purely circumstantial, this Court made it quite clear, at p. 161, that the issue of whether the standard set in Hodge’s Case has been met is a matter for the jury, and not the judge: “The question of whether circumstantial evidence meets the requirement of the so-called rule in Hodge’s Case . . . is for the jury to determine. This was settled in Mezzo [Mezzo v. The Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802]” (emphasis added). In other words, whether or not there is a rational explanation for that evidence other than the guilt of the accused, is a question for the jury. To my mind, this view is dispositive of this case and the Court need go no further than to rely on this authority.

Application to this Appeal

[5] As noted above, in a murder prosecution, the Crown must adduce sufficient evidence on the issues of identity, causation, the death of the victim and the requisite mental state. The core issue in this appeal is whether the evidence led by the Crown at trial met the requirements of the Shephard test by adducing sufficient evidence of causation.

[6] As the trial judge noted, the forensic evidence did not establish that the deceased was murdered and was inconclusive on this point. Two medical experts examined the body and were unable to determine definitively whether the deceased died from natural causes, or as a result of an accident, suicide or homicide. The trial judge concluded that “from an examination of the body, as a matter of law, there is no evidence that she met with foul play or that, in the words of the definition of homicide, that somebody caused her death”. The evidence in the deceased’s apartment also did not establish any foul play. The trial judge concluded that “with respect to the apartment, there is no evidence of a homicide other than the fact that the body is there”. Finally, the Crown presented no direct evidence (e.g., fingerprints or eyewitness testimony) placing the accused in his wife’s apartment on the night she died, and no evidence that he actually knew of the manner of her death before being informed by the police. On the basis of these observations, the trial judge concluded that there was no evidence on the issue of causation, a gap which would preclude any reasonable jury from returning a verdict of guilty.

[7] It is necessary and useful to review the other evidence adduced by the Crown, and the possible inferences that could be drawn therefrom, before addressing the significance of the purportedly missing element of the Crown’s case, as perceived by the trial judge. First, the Crown adduced evidence relating to animus and to motive. The appellant and the deceased had a difficult marriage marked by periods of separation. During one such period, the deceased began a relationship with another man, which the appellant found “shameful” and which had made him feel “like an idiot”. The appellant told police that the deceased had taken lovers in the past and was always “making problems” for him. On one occasion, the deceased told her doctor that she was afraid of staying with her husband and wanted to move away from him, and the doctor told the deceased about a women’s shelter. The deceased also once told a friend that the appellant was verbally abusive and that she was afraid of him. The Crown also led evidence suggesting the appellant may have had a financial motive to kill his wife. The appellant, who receives social assistance, held a life insurance policy on the deceased in the amount of $50,000. The Crown adduced evidence to establish that this represents a great deal of money in Poland, where the appellant (who is Polish) has been living on and off for the past five years. On the basis of these facts, the Crown, in my opinion, adduced sufficient evidence from which a jury, properly instructed, could have inferred the requisite mental state for the homicide. That is, the jury could have inferred from the evidence of animus and financial motive that the accused intended to kill his wife.

[8] The issue of identity was not disputed. The appellant admitted that he was present at the deceased’s apartment building on the night she died, and that he had telephoned her. This admission also allowed the Crown to present evidence of opportunity. The appellant clearly made a great effort to see his wife on Christmas Eve, travelling by plane and bus from Vancouver to London, Ontario. During the second telephone call to his wife, the appellant asked whether she was alone; the deceased then asked her friends to leave so that she could speak to the appellant. It is not clear whether she knew at that point that the appellant was in town, or whether she thought she would be speaking with him on the telephone from Vancouver. Finally, the appellant failed to account for the time between his arrival at the deceased’s apartment building (11:00 p.m.) and the time he was picked up by a taxi and left for Toronto (12:30 a.m.). The deceased died at some point between 11:00 p.m. and 1:00 a.m. The deceased’s key to her apartment could not be found. Clearly, a jury could infer from the evidence that the appellant had the opportunity to kill his wife.

[9] The Crown also presented evidence that the appellant had premature knowledge of the manner of his wife’s death. Three days after the deceased died, the police interviewed the appellant by telephone. The appellant stated in that conversation that the deceased had complained about being short of money, being sick, and forgetting things. He told police that she was in poor health and abused drugs. The appellant then volunteered that the deceased had complained to him about falling asleep in the bathtub sometimes for an hour or two, and that the deceased had told him she almost drowned on a couple of occasions. At that point in the conversation, the police had not yet discussed how the deceased had died, and the appellant had not yet heard from another source. The jury could have inferred that the appellant knew of the manner of his wife’s death because he was present when she died, and further, because he caused her death.

[10] Returning to the issue of causation, the Crown presented evidence related to the condition of the deceased’s body. Although the forensic evidence was inconclusive in the sense that there was no proof of homicide (for example, neck trauma resulting from strangulation), it is also true that the forensic tests turned up no evidence consistent with death by natural causes, accident, drug overdose or suicide. Moreover, the location of the body in scalding water with the head near the faucets provided evidence from which a jury could have inferred that the deceased was in fact the victim of foul play.

[11] In my opinion, the Crown thus presented sufficient evidence from which a reasonable jury, properly instructed, could return a verdict of guilty, notwithstanding the fact that the cause of death was unexplained. Both the position and condition of the body as found, and the indications of the appellant’s premature knowledge of the manner of death, constitute circumstantial evidence pertaining to the cause of death. This conclusion is based largely on this Court’s decision in Monteleone, supra, where the appellant appealed the reversal of the trial’s judge directed verdict on charges of arson. The relevant portions of that case (beginning at p. 162), which raised substantially the same issues as the present appeal, are worth repeating in full:

Turning now to the case at bar, the appellant does not dispute the validity of the Shephard test. As I understand the principal argument advanced for the appellant, it is that there was no evidence as to the cause of the fire. It is asserted that the evidence of fire inspector McLean does not afford the basis for any finding that the fire was of an incendiary origin. The most that can be made of it is that the cause of the fire is unexplained. This proposition is vital to the appellant's argument and, in his view, is decisive. If there is no evidence of an incendiary origin for the fire, there is no evidence of the commission of a crime. [Emphasis added.]

I pause here to emphasize again that, as in Charemski, the “gap” in the evidence of the Crown on which the defendant is focusing relates to the causation of the harm. McIntyre J. squarely addresses this contention, first quoting Lacourcière J.A. ((1982), 1982 2162 (ON CA), 67 C.C.C. (2d) 489, at p. 493) at pp. 162-63:

In most prosecutions for arson, the Crown must depend on circumstantial evidence. The circumstances must be sufficient to exclude every reasonable hypothesis other than a wilful and intentional burning in order to rebut the presumption that the burning was of accidental or natural origin. However, the facts and circumstances which tend to prove the incendiary origin of a fire are often inter‑woven, as in the present case, with other facts and circumstances which tend to connect the accused with the crime such as the presence of a motive, and the clear opportunity of the accused together with his subsequent incriminatory statements.

In this connection, the Crown had adduced evidence from which the jury could reasonably infer that the respondent had a motive to set fire to the building; the learned trial judge made no reference to motive in his ruling. It is conceded by Mr. Watt that the evidence of motive is not overwhelming. However, the circumstances of the respondent's indebtedness to the bank and to his suppliers, the fireman's evidence that there was not much stock visible when he entered the respondent's premises despite the purchase of large quantities of garments, the arrears of rent and the insurance coverage were sufficient to leave the question of motive for the consideration of the jury. [Emphasis added.]

McIntyre J. continued, at p. 164:

May then evidence of other matters ‑‑ motive, opportunity, financial difficulty and possibility of gain ‑‑ be considered as evidence going to prove the crime of arson?

The courts have frequently recognized the fact that the corpus delicti, that is, the act which constitutes the crime, in this case the setting of the fire, may be proved by circumstantial evidence. This subject is dealt with at Chapter 17, and following chapters, of McWilliams, Canadian Criminal Evidence (2nd ed. 1984). At page 541, the author refers to the words of Wills, An Essay on the Principles of Circumstantial Evidence (6th ed. 1912), at p. 326:

It is clearly established law that it is not necessary that the corpus delicti should be proved by direct and positive evidence, and it would be most unreasonable to require such evidence. Crimes, and especially those of the worst kinds, are naturally committed at chosen times, and in darkness and secrecy; and human tribunals must act upon such indications as the circumstances of the case present. . . . [Emphasis added.]

And finally he concludes, at p. 166:

I am therefore of the opinion that the Court of Appeal was correct in holding that the incendiary origin of the fire could be inferred from other inculpatory circumstances which could link the accused to the fire.

Just as was the case in Monteleone, supra, “evidence of other matters ‑‑ motive, opportunity, financial difficulty and possibility of gain ‑‑ [could] be considered as evidence going to prove the crime”, and it was not necessary for the Crown to adduce direct evidence of the corpus delicti. Indeed, I would suggest that there is in fact more evidence in this case than was available in Monteleone. There, there was no evidence whatsoever as to the cause of the fire; here, we have the deceased in the bathtub with her head at the faucet end. There are hot water burns on the skin, but not on the lungs. This constitutes at least some ‑‑ albeit not compelling evidence ‑‑ of foul play.

[12] Nor does the peculiar nature of the arson in Monteleone distinguish that case from this one. McIntyre J. specifically refers, at p. 165, to a previous Supreme Court case as authority for his position which involved an accusation of theft (R. v. Paul, 1975 185 (SCC), [1977] 1 S.C.R. 181).

[13] In my view, the trial judge should have directed the jury according to the requirement that a finding of guilt could only be made where there was no other rational explanation for the circumstantial evidence but that the defendant committed the crime (John v. The Queen, 1970 199 (SCC), [1971] S.C.R. 781, at pp. 791-92; R. v. Cooper, 1977 11 (SCC), [1978] 1 S.C.R. 860, at p. 881; Mezzo v. The Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802, at p. 843). Making that finding is essentially a factual matter arising from an evaluation of the evidence. That assessment is properly left to the jury. Judges should not be hasty to encroach on that time-honoured function, particularly where well-established principles articulated in this Court provide clear guidance on the circumstances in which a question may be withheld from the jury.

[14] I would dismiss the appeal.

The reasons of McLachlin and Major JJ. were delivered by

McLachlin J.

[15] McLachlin J. (dissenting) -- I have read the reasons of Justice Bastarache. I respectfully disagree.

[16] This is said to be a murder case, although no one can be sure there has been a murder. The accused’s wife, from whom he was separated, was found dead in her bathtub in the early hours of Christmas Day, 1992. Two pathologists examined the body; neither was able to conclude whether she died from natural causes, as the result of an accident, by suicide or by homicide. Her lungs were heavy, which was consistent with drowning. There were no signs of strangulation. There was no evidence of foul play in her apartment. Everything was neat and in order. Her bed was turned down for the night and her pyjamas laid out. No fingerprints of the accused were found in the apartment. The accused denied having been there, although he readily admitted to having wanted to see his wife that evening and to having telephoned her from the lobby asking to come up. The husband and wife had a joint life insurance policy worth $50,000, but there was no evidence the accused needed or wanted money. They were separated and had had difficulties in the past, but there is no evidence explaining why the accused might at this point, when they had established separate lives thousands of miles apart, have decided to kill his wife.

[17] The Crown’s case was woefully weak. The most glaring deficiency was the inability of the pathologists to determine whether a murder had been committed. The other evidence was, at best, equivocal. Not surprisingly, at the close of the Crown’s case the accused made a motion for a directed verdict of acquittal. The trial judge granted the motion. Flinn J. reviewed the law in detail, then applied the test of whether any reasonable jury properly instructed could find the accused guilty of murder on the evidence. He concluded that no reasonable jury could and that therefore there was “no evidence”. Accordingly, he directed a verdict of acquittal.

[18] In my view the trial judge reached the correct conclusion. The Court of Appeal ([1997] O.J. No. 1942 (QL)) should not have disturbed his decision. Neither should this Court. The accused should not be subjected to another trial on evidence as flimsy as this.

The Test on a Motion for a Directed Verdict

[19] The test on a motion for a directed verdict has been clear for over a century. It is a fundamental part of our criminal law. It is accepted throughout the common law world, including England and the United States. The test is whether a properly instructed jury could reasonably convict on the evidence. This Court has repeatedly affirmed this test, notably in United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, Mezzo v. The Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802, and R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154.

[20] A properly instructed jury acting reasonably is a jury that will convict only if it finds that the evidence establishes guilt beyond a reasonable doubt. To determine whether this could occur, the judge on the motion for a directed verdict must ask whether some or all of the admissible evidence is legally sufficient to permit the jury to find guilt beyond a reasonable doubt. In doing so, the trial judge is determining the sufficiency of the evidence. The question is whether the evidence is capable of supporting a verdict of guilt beyond a reasonable doubt. If it is not, the judge must direct an acquittal, since it would be impossible for a reasonable jury to convict legally on the evidence. The case against the accused has not been made out and there is no charge to answer. To permit the trial to continue would be to impinge on the accused’s right to silence and right to be presumed innocent until proved guilty, and to risk a verdict that would necessarily be unreasonable.

[21] While some judges have referred to a distinction between “no evidence” and “some evidence”, this distinction is nonsensical. The question on a motion for a directed acquittal always relates to the ability of the evidence to support a verdict of guilt, that is, whether there is sufficient evidence to permit a properly instructed jury to reasonably convict: Ronald J. Delisle, “Evidence — Tests for Sufficiency of Evidence: Mezzo v. The Queen” (1987), 66 Can. Bar Rev. 389, at p. 393; and see also David M. Tanovich, “Monteleone’s Legacy: Confusing Sufficiency with Weight” (1994), 27 C.R. (4th) 174, at pp. 175-76. Over a century ago Willes J. stated (Ryder v. Wombwell (1868), L.R. 4 Ex. 32, at p. 39):

It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the judge ... is ... not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.

As Professor Delisle puts it in Evidence: Principles and Problems (3rd ed. 1993), at p. 178, “[l]ogically . . . it would seem to be wrong to let a case go to the jury if the trial judge believed that no reasonable jury could be satisfied beyond a reasonable doubt” (as cited in Tanovich, at p. 176).

[22] If the evidence is all direct evidence, the trial judge’s task on a motion for a directed verdict is quite simple. An absence of evidence on an essential element will result in a directed acquittal. The existence of evidence on every essential element will result in dismissal of the motion. It remains only for the jury to decide who it chooses to believe and what evidence it decides to accept or reject. Where the case is based on circumstantial evidence, i.e., where any of the elements are not established by direct evidence, the task of the trial judge is more complicated. The Crown adduces evidence from which it submits facts in issue can be inferred from facts not in issue. In order to determine whether a properly instructed jury could reasonably convict, the judge must determine whether, assuming the circumstantial facts are proved, it would be reasonable to make the inference necessary to establish the facts in issue.

[23] On any motion for a directed verdict, whether the evidence is direct or circumstantial, the judge, in assessing the sufficiency of the evidence must, by definition, weigh it. There is no way the judge can avoid this task of limited weighing, since the judge cannot answer the question of whether a properly instructed jury could reasonably convict without determining whether it is rationally possible to find that the fact in issue has been proved. In the case of circumstantial evidence, the issue is the reasonableness of the inference the Crown seeks to have drawn. As stated by Professor Delisle, in “Tests for Sufficiency of Evidence”, supra, at p. 392, “[i]t is in evaluating the rationality of the necessary derivative inference, in testing its legitimacy, that the judge, either at preliminary, at trial or on appeal, performs the necessary weighing function”. But weighing the evidence for this purpose is a very limited exercise. The judge does not ask him- or herself whether he or she is personally satisfied by the evidence. Rather, the judge asks whether a jury, acting reasonably, could be satisfied by the evidence. Nor is the judge permitted to assess the credibility of the witnesses: see Mezzo, supra. It is for the jury to determine the credibility of the witnesses, to decide what evidence it accepts and what evidence it rejects, and ultimately, to determine if the evidence establishes guilt beyond a reasonable doubt. The difference between the judge’s function on a motion for a directed verdict and the jury’s function at the end of the trial is simply this: the judge assesses whether, hypothetically, a guilty verdict is possible; the jury determines whether guilt has actually been proved beyond a reasonable doubt.

[24] This limited judicial weighing at the stage of a motion for a directed acquittal does not infringe the jury’s role of determining as a matter of fact whether that guilt has been established. Lord Cairns put it well in Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193 (H.L.), at p. 197:

The Judge has a certain duty to discharge, and the jurors have another and a different duty. The Judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice that these separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may reasonably be inferred, the Judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever. [Emphasis in original.]

Lord Cairns’ statement of the law was adopted by this Court in R. v. Morabito, 1949 1 (SCC), [1949] S.C.R. 172, at p. 174, as governing both criminal and civil cases.

[25] This is the test that still prevails in England: see Colin Tapper, Cross and Tapper on Evidence (8th ed. 1995), at pp. 190-92. It is the test that prevails in Australia: see Peter Gillies, Law of Evidence in Australia (2nd ed. 1991), at pp. 206-8. And it is the test that prevails in the United States: see Clifford S. Fishman, Jones on Evidence: Civil and Criminal (7th ed. 1992), at p. 447, and John William Strong, ed., McCormick on Evidence (4th ed. 1992). In Curley v. United States, 160 F.2d 229 (D.C. Cir. 1947), Prettyman A.J. formulated the test in this way (at p. 232):

The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.

Prettyman A.J.’s statement of the test was adopted by the Second Circuit in United States v. Taylor, 464 F.2d 240 (1972). The same standard applies on a motion to set aside a verdict as being against the weight of the evidence, and on appeal from a conviction: see United States v. Martinez, 922 F.2d 914 (1st Cir. 1991). In Jackson v. Virginia, 443 U.S. 307 (1979), a case involving an appeal from a state conviction, the majority of the U.S. Supreme Court made it clear, at p. 319, that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). See also Tibbs v. Florida, 457 U.S. 31 (1982), at pp. 44-45, per O’Connor J.

[26] Until recently, no one questioned the rule that on a motion for a directed verdict the trial judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict, with the implied correlative that the trial judge must weigh the evidence in the limited sense of determining whether it is capable of supporting essential inferences the Crown seeks to have the jury draw. However, in this case the Crown argues that the test has been altered in cases of circumstantial evidence by two decisions of this Court: Mezzo, supra, and Monteleone, supra. I do not agree. While some of the language of these cases is confusing, a closer reading suggests that the justices had no intention of discarding the time-hallowed and universally accepted test for directed acquittals.

[27] In Mezzo, the issue was the sufficiency of certain identification evidence. McIntyre J., for the majority, stated that a judge can direct an acquittal only if there is “no evidence”. However, subsequent passages make it clear that McIntyre J. was not using the phrase “no evidence” in the impermissible sense of “not a scintilla of evidence”. After referring to another circumstantial evidence case, R. v. Comba, 1938 7 (SCC), [1938] S.C.R. 396, McIntyre J. stated, at p. 843, that “circumstantial evidence, which did not comply with the rule in Hodge’s Case, [was] no evidence at all going to show guilt”. In other words, if the circumstantial evidence presented does not reasonably support the inference of guilt, it is “no evidence” — the evidence is insufficient. McIntyre J. is necessarily acknowledging that the trial judge must evaluate, or weigh, whether circumstantial evidence is sufficient to, or capable of, supporting a verdict of guilt. This suggests that he viewed the trial judge in Comba as acting correctly when he weighed the evidence to determine whether the inferences necessary were capable of meeting the test in Hodge’s Case (1838), 1838 1 (FOREP), 2 Lewin 227, 168 E.R. 1136. The question of whether the test in Hodge’s Case was actually met was for the jury. Wilson J. held the same view at p. 813: “in this context ‘no evidence’ is not to be taken literally as meaning a total absence of any evidence but as meaning rather no evidence capable of supporting a conviction”.

[28] The Court’s decision in Monteleone, supra, also leaves room for doubt as to whether the Court intended to jettison the long-standing principle that a judge on a motion for a directed verdict is obliged to determine whether the evidence is sufficient to support a verdict of guilt, and to engage in limited evaluation of inferences if this is required in order to do so. McIntyre J. stated at p. 161:

Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.

Here again one finds the implicit contradiction. The first sentence in the passage is a correct statement of the classic rule. It implies that the judge may be required to engage in limited weighing or evaluation of the inferences to be drawn from circumstantial evidence, since, as discussed above, this is an essential step in determining whether the evidence is rationally capable of supporting a conviction. Yet having acknowledged this, McIntyre J. goes on to suggest that the trial judge cannot draw inferences of fact from the evidence before him, and later states, at p. 161, that “[t]he question of whether circumstantial evidence meets the requirement of the so-called rule in Hodge’s Case . . . is for the jury to determine. This was settled in Mezzo. . . .” This contradiction was left unresolved.

[29] The ambiguities in Mezzo and Monteleone leave me far from certain that the judges who wrote in those cases intended to abandon the long-standing rule that trial judges on a motion for a directed verdict must determine whether the evidence is sufficient to permit a properly instructed jury acting reasonably to reach a verdict of guilt. On the contrary, the Court in both cases expressly reaffirm this principle. In my view, the comments in the decisions suggesting a possible contrary effect should not be read as negating this fundamental principle.

[30] In my opinion, the test for a directed verdict in Canada remains the traditional one: whether a properly instructed jury acting reasonably could find guilt beyond a reasonable doubt. Where it is necessary to engage in a limited evaluation of inferences in order to answer this question, as in cases based on circumstantial evidence, trial judges may do so; indeed, they cannot do otherwise in order to discharge their obligation of determining whether the Crown has established a case that calls on the accused to answer or risk being convicted.

[31] This conclusion is confirmed by the following considerations: it is the only conclusion that satisfies the logic of the trial process; it is the only conclusion that adequately safeguards the accused’s rights; it is the rule that prevails in other common law jurisdictions; and it is the view that best harmonizes with the tests established for proceedings analogous to the motion for a directed verdict, such as preliminary inquiries and appeals on the reasonableness of a conviction (Criminal Code, R.S.C., 1985, c. C-46, s. 686(1)(a)(i)).

Application of the Rule to this Case

[32] Flinn J. considered the justifiability of the Crown’s proposed inferences using the test from Shephard, supra. He borrowed the language of “mere suspicion” versus “valid inference” used by Wilson J. in Mezzo, supra, at p. 814, and asked himself whether the circumstantial evidence was sufficient to justify the drawing of an inference of guilt, or whether it raised only a suspicion. After carefully reviewing the evidence, including the absence of any evidence that the deceased had met with foul play, he concluded that the evidence did no more than raise suspicions. It followed that no properly instructed jury could reasonably convict. This meant that there was “no evidence” of guilt, in the sense of “no evidence sufficient to support a verdict of guilt”. Accordingly, he withdrew the case from the jury and entered a verdict of not guilty.

[33] In reviewing this legal conclusion, a court of appeal is in as good a position as the trial judge. The question is whether the evidence was capable of supporting a guilty verdict. In my view, the trial judge correctly concluded that it was not. The evidence raised a suspicion, but was not capable of supporting the inferences required for a finding of guilt beyond a reasonable doubt. Flinn J. applied the correct test on the motion for directed verdict: whether there was any evidence upon which a reasonable jury properly instructed could return a verdict of guilty (Shephard, supra). In applying that test, the trial judge was obliged to evaluate whether the evidence was rationally capable of supporting the inferences the Crown sought to have drawn from it. It was for the jury to say whether or not those inferences should actually be drawn. But it was the task of the trial judge on the motion for a directed verdict to determine whether they could legitimately be drawn. To use the language from Curley, supra, at p. 232, the judge’s task was to “determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt”.

[34] Bastarache J. correctly asserts that the Crown must adduce sufficient evidence on the issues of identity, causation, the death of the victim and the requisite mental state to pass the hurdle of a motion for a directed acquittal. To this I would add two further comments.

[35] First, “sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to “sufficient evidence” is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.

[36] My second comment concerns the relationship between the elements of identity, causation, the death of victim and requisite mental state. “Identity” means “identity of the murderer”. It is impossible to discuss identity unless one has evidence capable of supporting the finding, beyond a reasonable doubt, that a murder was committed. Similarly, the element of mental state presupposes a culpable homicide. Therefore, I do not agree that the fact that the accused was in the deceased’s apartment block the night of the death establishes identity. Until there is a homicide, it is meaningless to speak of identity. The same goes for mental state. This means that the finding that there has been a homicide or culpable cause of death, is critical. Without that finding, we cannot even meaningfully discuss two of the other essential elements of murder. We have only a death and that alone cannot support a conviction for murder.

[37] Everything thus hinges, in a case such as this, on proving that there has been a homicide. If that cannot be established beyond a reasonable doubt, nothing can be established. It is not surprising that the English law has long placed special emphasis on the necessity of the Crown’s establishing on clear evidence the corpus delicti, or body of the crime. On charges of murder, the emphasis has been even greater. McWilliams summarizes the law (Peter K. McWilliams, Canadian Criminal Evidence (3rd ed. 1988) loose-leaf)), at p. 17-3:

Murder can still be proved by circumstantial evidence but the necessity of the most compelling proof of the corpus delicti is obvious. But as Wills said at p. 370:

No universal and invariable rule ... can be laid down; and every case must depend upon its particular circumstances; and the corpus delicti must, like anything else, be proved by the best evidence reasonably capable of being adduced, and by such an amount and combination of relevant facts, whether direct or circumstantial, as to establish the factum probandum to the exclusion of every other reasonable hypothesis.

Whatever the degree of proof or the form of words used to define the degree of proof in such a case, it is a heavy one. [Emphasis added.]

Therefore, Flinn J. was correct to place special emphasis on the absence of any evidence that the deceased had died as a result of a crime.

[38] The Crown argues that the corpus delicti can be proved by evidence of motive and opportunity. It relies on Monteleone, supra, in which this Court held that the corpus delicti of arson could be established by evidence of motive, opportunity, financial difficulty and possibility of gain. This argument fails for three reasons. First, the argument ignores the long-standing principle that on charges of murder, there is “the necessity of the most compelling proof of the corpus delicti”: see McWilliams. Second, the facts in Monteleone were more compelling than here. In Monteleone there was evidence of financial difficulty and clear evidence of opportunity. The evidence suggested that a valuable antique desk had been removed prior to the fire and that there was very little inventory. The accused admitted that he was in the building shortly before the fire. Here, by contrast, there is no evidence placing the accused in the deceased’s apartment. There is no evidence of financial difficulty or need. The presence of a long-standing life insurance policy on one’s spouse without more is hardly evidence of motive; such policies are common among even happily married couples. The fact that $50,000 is a lot of money in Poland is also not evidence of motive — presumably it is “a lot of money” in many places. Third, it seems that in Monteleone there was no other rational explanation for the fire; the fire marshall testified to this effect. The pathologists in the case at bar, on the contrary, testified to the reasonable possibility of other non-criminal causes of death.

[39] In determining whether it was legally possible for a properly instructed jury acting reasonably to convict on the evidence, the central question — the question on which all other questions hinged — was whether the evidence was capable of permitting an inference, beyond a reasonable doubt, that the deceased had been killed. The medical evidence adduced by the two Crown pathologists provided two other reasonable explanations for the death — natural causes and suicide. Thus, the evidence was incapable of supporting an inference, beyond a reasonable doubt, that the death was wrongful. To paraphrase McCormick on Evidence, supra, at p. 435, an inference that the deceased was murdered was far beyond the “limits of reasonable inference from the facts proven”. That being the case, there was no way that a reasonable jury, properly instructed, could have returned a verdict of guilty.

[40] While this is sufficient to dispose of the case, I add these comments. I do not share my colleague’s view that identity is established, even if one assumes for the purposes of argument that the corpus delicti is made out. The fact that the accused was in the deceased’s building the evening of the death does not show opportunity establishing identity. There is no evidence that he was granted admission to the deceased’s apartment. So in order to arrive at the conclusion on identity, it is necessary to make an inference that because he was in the lobby, he must have been in the apartment. Again, a question arises as to whether such an inference could rationally have been made. It does not follow naturally from the fact that a person is in the lobby of an apartment building that he gains entry to one of the apartments, particularly when the only evidence on the issue is that of a police officer who testified that the accused told him that he was refused entry to the apartment. There is no process of reason that permits one to conclude beyond a reasonable doubt that because the accused was in the lobby he gained entry to the deceased’s apartment. Again we are faced with a gap leading to a suspicion, not a reasonable inference.

[41] Finally, even assuming a jury were ever able to reach the point of considering whether the accused possessed the requisite state of mind for murder, further difficulties would emerge. The only evidence capable of even tangentially suggesting an intention to kill is the evidence that the accused would obtain $50,000 from the insurance policy upon her death. But the fact the policy had been in force many years and the absence of any evidence of financial need undermine any inference that could be drawn from the insurance policy.

[42] No reasonable jury properly instructed could have convicted the accused of the murder of his wife on this evidence. There was no case for the accused to meet. The trial judge correctly allowed the motion for a directed verdict and entered the acquittal.

[43] I would allow the appeal, set aside the order of the Court of Appeal, and restore the acquittal.

Appeal dismissed, McLachlin and Major JJ. dissenting.

Solicitors for the appellant: Paul Carter, Criminal Lawyers, London.

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