R. v. Avetysan, [2000] 2 S.C.R. 745

Arthur Avetysan Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Avetysan

Neutral citation: 2000 SCC 56.

File No.: 27279.

2000: January 28; 2000: November 10.

Present: Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for newfoundland

Criminal law -- Charge to jury -- Reasonable doubt -- Accused convicted of assault and extortion -- Whether pre-Lifchus charge on reasonable doubt in substantial compliance with principles set out in Lifchus.

Criminal law -- Charge to jury -- Reasonable doubt -- Different versions of events -- Whether trial judge adequately charged jury on how to deal with conflicting evidence.

The appellant and another man were jointly tried for assault and extortion. At trial, the testimony given by the complainant and by both accused as to the events giving rise to the charges was contradictory. In his charge, the trial judge, who did not have the benefit of this Court’s decision in Lifchus, described reasonable doubt as being “real”, “serious”, “doubt that is reasonable” and “not an imaginary doubt or a fictitious doubt”. When dealing with the competing evidence, the trial judge described the evidence in global terms, asking the jury to “assess the evidence, all of the evidence” and he presented the jury with two options: it could acquit if a reasonable doubt remained, or convict if all of the evidence satisfied the jury beyond a reasonable doubt. He also explained that he had compared the two versions of events given in testimony. The appellant was convicted and the majority of the Court of Appeal dismissed his appeal from conviction. While acknowledging that the charge on reasonable doubt did not mimic Lifchus, the majority held that the standard was one of adequacy and that this charge would not have misled the jury on the standard of proof required. The majority also held that the jury was adequately charged on how to deal with competing evidence. The issue raised by this appeal as of right was whether the jury was properly instructed on these two points.

Held (Bastarache J. dissenting): The appeal should be allowed and a new trial ordered.

Per Major, Binnie, Arbour and LeBel JJ.: In considering a pre-Lifchus charge, the test is whether there was substantial compliance with the principles set out in Lifchus. A charge should not be faulted merely for imprecise language. The principles in Lifchus and Starr are to be applied in a manner that will encourage improvements in the wording of jury charges, but do not vitiate past charges where the language used, although no longer preferred, meets the substantially correct test. The basic question remains: does the charge, read as a whole, give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof? Here the charge was defective. The jury was not told clearly that the standard of proof was more than a balance of probabilities but less than absolute certainty. Likewise, the jury was not told that it was required to acquit if it concluded only that the accused men were “probably guilty”. As well, the jury was not told that “proof beyond a reasonable doubt” is a special concept with a specific meaning in criminal law. Further, there is also a risk that the words used by the trial judge to describe “reasonable doubt” did not convey to the jurors that they are to remain objective in determining whether the evidence amounts to proof beyond a reasonable doubt. On an ancillary point, the charge did not warn the jury that the burden of proof never shifts from the Crown. Further, while counsel’s errors can be corrected by the trial judge in his charge, submissions by counsel cannot remedy a defective charge.

The charge, when discussing how to deal with conflicting evidence, suggested that the jury had to resolve the factual question of what happened and may have left the jury with the impression that it had to choose between the two versions of events. The trial judge should have focussed the jury’s attention on a third alternative given in W. (D.) -- that the accused men could be acquitted even if their evidence was not believed but a reasonable doubt remained as to their guilt. The jury as well should have been warned not to convict automatically if it found the testimony of the complainant was more credible than that of the accused men. There was some risk that the jury misapprehended the requirement of proof beyond a reasonable doubt in relation to the two irreconcilable versions of events. The admonition to consider “all of the evidence” does not correct this failing.

Per Bastarache J. (dissenting): The appeal should be dismissed for substantially the same reasons as given by the majority of the Court of Appeal. A failure by the trial judge to follow W. (D.) does not amount to a reversible error, as long as the trial judge does not expressly instruct the jury that it must choose between the accused’s evidence and the other version. The determinative question is whether the jury understood that, even if it disbelieved the accused, it could still acquit if it found the Crown had not proved its case beyond a reasonable doubt. While it is preferable to give an explicit direction that the accused could be acquitted even if his evidence was not believed, there is no obligation to do so, as long as the trial judge does not suggest that one version of events must be accepted by the jury. Here, a review of the charge demonstrates that the jury understood that disbelief of the accused men was not sufficient grounds for conviction. The jury was never told that it had to pick between two versions of events and the charge made it clear to the jury that if the defence evidence leaves the jury in a state of doubt after considering it in the context of the whole of the evidence, then the jury is to acquit. Finally, there is no reason to overturn the majority of the Court of Appeal on the application of Lifchus.

Cases Cited

By Major J.

Applied: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320; R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; referred to: R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54; R. v. Bisson, 1998 CanLII 810 (SCC), [1998] 1 S.C.R. 306; R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521.

By Bastarache J. (dissenting)

R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320; R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55; R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521.

APPEAL from a judgment of the Newfoundland Court of Appeal (1999), 1999 CanLII 18966 (NL CA), 174 Nfld. & P.E.I.R. 34, 533 A.P.R. 34, [1999] N.J. No. 104 (QL), dismissing the accused’s appeal from his convictions on charges of assault and extortion. Appeal allowed and new trial ordered, Bastarache J. dissenting.

Derek Hogan, for the appellant.

Wayne Gorman, for the respondent.

The judgment of Major, Binnie, Arbour and LeBel JJ. was delivered by

[1] Major J. – This appeal once again raises the adequacy of the trial judge’s charge to the jury and the standard applied by the court of appeal in reviewing it. Trial judges’ charges to juries vary. No particular magical incantation is required. Judges properly have a wide discretion in what they tell the jury but there are, depending on the offence alleged, certain things that the jury must be told. The language used to obtain the result is left to the trial judge. If the charge adequately informs the jury what it must consider, appeal courts will not interfere simply because they feel the charge could have been better.

[2] In Canada, the courts of appeal dispose of the vast majority of criminal and civil appeals. In assessing the conclusions of courts of appeal, this Court will not interfere if they have determined, following paras. 23 and 24 of R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55, that regardless of the language used the instructions were in substantial compliance with the existing law. Only if the court of appeal has departed from established principles will further review by this Court be triggered.

[3] In this appeal there were two challenges to the jury charge. They fall into the subject matter covered in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, and R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Lifchus is authority on what the jury must be told on the standard of proof beyond a reasonable doubt. W. (D.) dictates what instructions are necessary when the jury is faced with competing evidence on “what happened”. It is significant that here we are dealing with a case similar to R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40, in that the charge is challenged on a number of fronts, as contrasted with Russell, supra, and R. v. Beauchamp, [2000] 2 S.C.R. 720, 2000 SCC 54, where all that was at issue was the definition of reasonable doubt given by the trial judge. In this appeal, both errors relate to the directions given to the jury and must have had an impact on the jury’s assessment of whether a reasonable doubt existed; therefore, at issue is the charge in its entirety. If the jury was properly instructed, the specific words in the charge need not mimic Lifchus and W. (D.).

[4] In my respectful opinion, the charge in this case is flawed and a new trial is necessary.

I. Facts

[5] The appellant, Arthur Avetysan, was convicted of extortion and assault. Avetysan was tried jointly with Oleg Velitchko, who was convicted of the same offences and who discontinued his appeal to this Court before the release of this decision. Slivko Paval Valerievich (“the complainant”) was a Russian citizen seeking refugee status in St. John’s, Newfoundland. He testified that the appellant and Velitchko entered his apartment on October 17, 1996, and assaulted him over the course of two or three hours. According to the complainant, the appellant and Velitchko demanded that he pay $1,000 within three days; they threatened to kill him and harm his wife and child in Russia if he did not comply.

[6] The appellant and Velitchko, however, described a completely different version of events. In their account, they were invited into the apartment where they had a friendly conversation about immigration, sports and unemployment. The appellant and Velitchko said no assault took place and no threats were made. The jury convicted the appellant and Velitchko.

[7] The trial judge’s charge to the jury was given prior to the 1997 Lifchus decision. He told the jury:

The presumption of innocence — In a criminal case in this country, the accused is presumed to be innocent until the Crown has proven guilt beyond a reasonable doubt. It is not the responsibility of the accused to establish or demonstrate or prove their innocence. If the Crown fails to prove guilt beyond a reasonable doubt, you must acquit the accused. What is reasonable doubt? A reasonable doubt is just that, a doubt that is reasonable. I usually describe it as a real doubt, if you got a real doubt, a serious doubt. It is not an imaginary doubt or a fictitious doubt which is used by a person to avoid their responsibility.

Later in his charge, the trial judge said:

So the evidence, members of the jury, is fairly — It’s not a complex matter. It’s fairly simple and straightforward. What it boils down to, are you satisfied beyond a reasonable doubt that this man was threatened and assaulted in his apartment that evening? You assess the evidence, all of the evidence. It’s not a case of picking little pieces here and there. It’s a case of, I suggest to you — You take all of the evidence. You take the whole evidence and you look at it and you determine on the whole of the evidence whether or not you are satisfied beyond a reasonable doubt as to the guilt of these two accused persons. If you have a reasonable doubt, then you must resolve it in favour of the two accused. If, however, you are satisfied beyond a reasonable doubt as to their guilt that they assaulted and attempted to extort monies from Mr. Slivko, it is your duty to convict the accused.

[8] On appeal, the Supreme Court of Newfoundland (Court of Appeal) concluded that the trial judge’s charge to the jury was sufficient: (1999), 1999 CanLII 18966 (NL CA), 174 Nfld. & P.E.I.R. 34. The majority acknowledged that the charge did not mimic Lifchus in its description of the concept of “proof beyond a reasonable doubt”. However, they said the standard is one of adequacy, and this charge would not have misled the jury on the standard of proof required. On the second issue, the majority likewise concluded that the jury was adequately charged as to how to consider two different versions of events. Green J.A. dissented; this is an appeal as of right.

II. Analysis

[9] The approach to explaining reasonable doubt in a jury charge is, as a result of Lifchus, supra, settled. The trial judge has flexibility in instructing the jury on reasonable doubt, and no particular language is necessary. The same can be said of the W. (D.) instruction on conflicting evidence. Appeal courts will not interfere when a jury has been adequately instructed. But adequate instructions require that certain standards be met.

A. The Jury Charge on Reasonable Doubt

[10] This Court has applied the principles of Lifchus in a number of appeals: Starr, supra; Russell, supra; and Beauchamp, supra. Cory J. summarized the necessary ingredients of a jury charge in Lifchus, at paras. 36-38. It should be explained to the jury, in substance, that:

· the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

· the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;

· a reasonable doubt is not a doubt based upon sympathy or prejudice;

· rather, it is based upon reason and common sense;

· it is logically connected to the evidence or absence of evidence;

· it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

· more is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guilty must acquit.

On the other hand, certain references to the required standard of proof should be avoided. For example:

· describing the term “reasonable doubt” as an ordinary expression which has no special meaning in the criminal law context;

· inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;

· equating proof “beyond a reasonable doubt” to proof “to a moral certainty”;

· qualifying the word “doubt” with adjectives other than “reasonable”, such as “serious”, “substantial” or “haunting”, which may mislead the jury; and

· instructing jurors that they may convict if they are “sure” that the accused is guilty, before providing them with a proper definition as to the meaning of the words “beyond a reasonable doubt”.

A charge which is consistent with the principles set out in these reasons will suffice regardless of the particular words used by the trial judge. [Emphasis in original.]

[11] The review of the charge for compliance with these principles is not a mechanical exercise but one of substance. The fact that one of the items mentioned in the first group was absent from the charge, or that an item from the second group was included in it, will not usually be determinative of the validity of the charge as a whole.

[12] Starr, supra, stated that in considering a jury charge given prior to the release of Lifchus, the test is whether there was substantial compliance with the principles set out in that case. It is worth stressing that the principles in Lifchus are to be applied in a manner that will encourage improvements in the wording of jury charges, but do not vitiate past charges where the language used, although no longer preferred, meets the substantially correct test. A jury charge given before or after the Lifchus decision should not be faulted merely for imprecise language. Rather, as was stated in Starr, supra, it should be reviewed to determine whether it substantially complies with the Lifchus principles. As applied in Russell, supra, and Beauchamp, supra, the basic question remains: Does the charge, read as a whole, give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof? If not, the charge is adequate.

[13] It is settled that the standard of proof beyond a reasonable doubt is a special standard. It requires more than proof on a balance of probabilities, or probable guilt, but less than absolute certainty on the part of jurors. In Lifchus, at para. 14, Cory J. held that jurors “must be aware that the standard of proof is higher than the standard applied in civil actions ... yet less than proof to an absolute certainty”. In that same passage, he highlighted the importance of this principle, stating: “No matter how exemplary the directions to the jury may be in every other respect if they are wanting in this aspect the trial must be lacking in fairness”. See also Starr, at paras. 241-42. (In situating the criminal standard of proof, “it falls much closer to absolute certainty than to proof on a balance of probabilities”: Starr, at para. 242, per Iacobucci J.)

[14] The charge in this case was defective. The jury was not clearly told that the standard of proof was more than a balance of probabilities but less than absolute certainty. Likewise, the jury was not told that it was required to acquit if it concluded only that the accused men were “probably guilty”, a standard that Cory J. in Lifchus found could affect the fairness of trial.

[15] As well, Lifchus is emphatic that the standard of proof required to convict a person of a criminal offence is a special one and it must be described as such. It is not an ordinary standard and should not be explained in a manner that directs jurors to apply the standard they employ for everyday — or even important — decisions: see R. v. Bisson, 1998 CanLII 810 (SCC), [1998] 1 S.C.R. 306. The charge here failed to convey the special character of the criminal standard of proof. The jury was not told that “proof beyond a reasonable doubt” is a special concept with a specific meaning. The jury was told that “A reasonable doubt is just that, a doubt that is reasonable”. This phrase implied that the words were used in an everyday, ordinary sense, rather than as a special phrase with a specific meaning in criminal law. That being so, I conclude that the jury charge was defective in that it did not clearly convey that the terms reasonable doubt have special meaning in criminal law.

[16] Lifchus also states that the charge should tell the jurors that they are to remain objective in determining whether the evidence amounts to proof beyond a reasonable doubt. That is, jurors should not be invited to supply an individual meaning for the concept of proof beyond a reasonable doubt. This is related to the point that the standard is a special one. It is also related to the idea that jurors must not determine guilt based on an individual sense of morality rather than on a dispassionate review of the evidence: Lifchus, at para. 25. In this case, the suggestion that the words “reasonable doubt” were used in their ordinary sense risked the possibility that jurors would then supply an individual meaning to the content of this standard of proof. In addition, the trial judge used adjectives to modify “doubt”, such as “serious” and “real”. Such modifiers were disproved of in Lifchus because they could produce variance among jurors as to what the standard requires.

[17] On an ancillary point, the trial judge’s charge to the jury linked the standard of proof beyond a reasonable doubt to the presumption of innocence, but it did not warn that the burden of proof never shifts from the Crown.

B. The Charge on Credibility and Resolving the Factual Mystery of “What Happened”

[18] The appellant takes issue with the jury charge for a second reason: he says it failed to explain properly to the jury how it should assess credibility, in a situation where there were two irreconcilable versions of events described in testimony.

[19] Cory J. addressed this situation in two separate but similarly named cases: W. (D.), supra, and R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521. In W. (D.), at pp. 757-58, he said:

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. . . .

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. [Emphasis in original.]

In the other case, S. (W.D.), at p. 533, Cory J. pointed out that such instructions need not be given “word for word as some magic incantation”. The question is really whether, in substance, the trial judge’s instructions left the jury with the impression that it had to choose between the two versions of events.

[20] This appeal parallels W. (D.), in the sense that the jury was left with two contradictory versions of events. The complainant testified that he was assaulted and threatened over a two- or three-hour duration by the appellant and Velitchko. The appellant and Velitchko both testified that they merely had a friendly conversation in the complainant’s apartment. These versions were diametrically opposed but the W. (D.) instruction was not given to the jury. The trial judge described the evidence in global terms, asking the jury to “assess the evidence, all of the evidence”. Elsewhere in his charge, the trial judge remarked that the jury had heard “two versions” of events. He reviewed the two versions and plainly expressed his preference for the evidence of the complainant, whom he referred to as “a straightforward witness”. He presented the jury with two options: it could acquit if a reasonable doubt remained, or convict if the evidence satisfied the jury beyond a reasonable doubt. He also explained his own reasoning by saying that he had “compare[d] the evidence of the accused and the evidence of [the complainant]”. This last explanation suggested that the jury, too, should “compare” the two versions of events and choose one.

[21] I agree with Green J.A. that the charge on this point fell into the trap of suggesting that the jury had to resolve the factual question of what happened. The jury was faced with two irreconcilable versions of events. It may have seemed to the jury that it bore the responsibility for figuring out “which version” to believe. It may logically have seemed an “either/or” proposition. It was important that the trial judge focus the jury’s attention on the third alternative given in W. (D.) — that the accused men could be acquitted even if their evidence was not believed but a doubt remained. The jury may have been left with the impression that it had to choose which competing version of events it would accept. The jurors should have had the third option of W. (D.) left to them.

[22] The jury should have been told that it could acquit even if it did not believe the testimony of the two accused men provided it was left with reasonable doubt about the guilt of the accused on the evidence that it accepted. The jury should have been warned not to convict automatically if it found the testimony of the complainant was more credible than that of the appellant and Velitchko. There was some risk that the jury misapprehended the requirement of proof beyond a reasonable doubt in relation to the two irreconcilable versions of events. The admonition to consider “all of the evidence” does not correct this failing: S. (W.D.), at p. 535.

III. Conclusion

[23] The jury charge in this case, when read as a whole, left open the likelihood that the jury misapprehended the meaning of “proof beyond a reasonable doubt” and its application to the two versions of events. Ultimately, there remains a risk of conviction on a standard of proof other than “beyond a reasonable doubt”.

[24] The respondent Crown argued that submissions by Crown counsel during the trial, with respect to the reasonable doubt standard, might have remedied the defective charge. That argument fails. The fact that Crown counsel might have described the reasonable doubt standard properly will not correct the trial judge’s failure to do so. The long-established rule is that the trial judge instructs the jury on questions of law. The trial judge bears that responsibility, and while counsel’s errors can be corrected by the trial judge in his charge, the opposite is not true.

[25] The case law is clear that a new trial will be necessary when the jury may have been under a misapprehension as to the correct standard of proof and the correct approach to conflicting evidence. The rationale has its source in the principle of trial fairness. See Lifchus, per Cory J. at para. 13:

The Marshall, Morin and Milgaard cases serve as a constant reminder that our system, with all its protections for the accused, can still make tragic errors. A fair trial must be the goal of criminal justice. There cannot be a fair trial if jurors do not clearly understand the basic and fundamentally important concept of the standard of proof that the Crown must meet in order to obtain a conviction.

IV. Disposition

[26] The appeal is allowed and a new trial is ordered.

The following are the reasons delivered by

[27] Bastarache J. (dissenting) — In this appeal, the appellant asks this Court to overturn his convictions for assault and extortion based on the retrospective application of R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, and an extension of the holding in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. I would dismiss the appeal, for substantially the same reasons as the majority of the Court of Appeal.

[28] In W. (D.), Cory J. describes, at pp. 757-58, how a jury should handle two diametrically opposed versions of events given in testimony:

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. . . .

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.

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, [1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652]. [Emphasis in original.]

In asserting that the trial judge must follow this procedure where the evidence pits the accused’s version of a story against a competing version, the appellant seems to overlook the final paragraph reproduced above. It quite clearly indicates that a failure by the trial judge to follow W. (D.) does not amount to a reversible error, as long as the trial judge does not expressly instruct the jury that it must choose between the accused’s evidence and the other version. In R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533, Cory J. affirmed that the W. (D.) procedure was not meant to be followed “word for word as some magic incantation”. In my view, the determinative question is whether the jury understood that, even if it disbelieved the accused, it could still acquit if it found the Crown had not proved its case beyond a reasonable doubt.

[29] A review of the charge demonstrates that the jury understood that disbelief of the accused was not sufficient grounds for conviction. At the outset of his charge, the trial judge:

(1) established that the accused was presumed innocent;

(2) stated the accused had no responsibility to establish, demonstrate, or prove his innocence;

(3) stated that if the Crown failed to prove guilt beyond a reasonable doubt, the accused must be acquitted;

(4) stated that it was open to the jury to accept only a part of a witness’s testimony and to reject other parts.

He then stated that “two versions” of the meeting were in evidence and proceeded to summarize each of these. He concluded by saying:

So the evidence, members of the jury . . . – It’s not a complex matter. It’s fairly simple and straightforward. What it boils down to, are you satisfied beyond a reasonable doubt that this man was threatened and assaulted in his apartment that evening? You assess the evidence, all of the evidence. It’s not a case of picking little pieces here and there. It’s a case of, I suggest to you -- You take all of the evidence. You take the whole evidence and you look at it and you determine on the whole of the evidence whether or not you are satisfied beyond a reasonable doubt as to the guilt of these two accused persons. If you have a reasonable doubt, then you must resolve it in favour of the two accused. If, however, you are satisfied beyond a reasonable doubt as to their guilt that they assaulted and attempted to extort monies from Mr. Slivko, it is your duty to convict the accused.

The appellant argues that the jury should have been told that it could acquit even if it did not believe the testimony of the two accused men. While this specific instruction was not given in express terms by the trial judge, I am confident that it was quite clear to the jury from the context of the charge as a whole. Hence, there was no danger that the jury would automatically convict if it concluded that the complainant was more credible than the appellant or Velitchko. The trial judge presented the question clearly: it could acquit if a reasonable doubt remained, or convict if the evidence satisfied the jury beyond a reasonable doubt. There is nothing amiss with this direction.

[30] The charge here did not suggest that the jury had to resolve a factual mystery as to what happened. The jury was never told that it had to pick between two versions of events and consequently, when the charge is viewed as a whole, there is little risk that the jury would have believed it bore the responsibility for figuring out “which version” it should believe. While I accept that it is preferable to give an explicit direction that the accused could be acquitted even if his or her evidence were not believed, there is no obligation to do so, as long as the trial judge does not suggest that one version of events must be accepted by the jury.

[31] In my view, the difference in facts between the present case and S. (W.D.) easily distinguishes this case. First, in that case, the error in the charge occurred in direct response to a question from the jury, magnifying the prejudice to the accused; see W. (D.), supra. Second, the direction in S. (W.D.) to choose between the two versions was quite explicit while here there was no specific suggestion that a choice had to be made. Third, the direction to consider the existence of a reasonable doubt in the context of “all of the evidence” was meaningful here since, unlike in S. (W.D.), there was corroborating evidence. Thus, the instruction to consider whether, on “all of the evidence”, the Crown had proven guilt beyond a reasonable doubt mitigated the trial judge’s general reference to “two versions” of events (see S. (W.D.), supra, at p. 535).

[32] In the circumstances of this case, the trial judge’s failure to follow the exact phraseology of W. (D.) is not a reversible error since the charge as a whole established the proper burden and standard of proof. The crucial error that motivated a response in W. (D.) (the instruction that the jury must choose between the accused’s and complainant’s evidence) was not present here. On the charge as a whole the burden and standard were sufficiently clear, thus satisfying the passage in W. (D.) at issue. The warning set out by McLachlin J. (as she then was) in S. (W.D.), supra, at pp. 544-45, bears repeating:

. . .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”.

Here the charge made it clear to the jury that if the defence evidence leaves it in a state of doubt after considering it in the context of the whole of the evidence, then it is to acquit.

Disposition

[33] Because I find no reason to overturn the majority of the Court of Appeal on the application of Lifchus (as in the unanimous decision of our Court in R. v. Russell, [2000] 2 S.C.R. 731, 2000 SCC 55, released concurrently), and for the reasons expressed above with regard to the application of W. (D.), I would dismiss the appeal and uphold the conviction.

Appeal allowed and new trial ordered, Bastarache J. dissenting.

Solicitor for the appellant: Derek Hogan, St. John’s.

Solicitor for the respondent: The Department of Justice, St. John’s.