SUPREME COURT OF CANADA

Citation: R. v. Rojas, [2008] 3 S.C.R. 111, 2008 SCC 56

Date: 20081024

Docket: 32080, 32087

Between:

Miguel Rojas Appellant

and

Her Majesty The Queen Respondent

‑ and ‑

Attorney General of Ontario Intervener

And Between:

Hugo Rojas Appellant

and

Her Majesty The Queen Respondent

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ.

Reasons for Judgment: (paras. 1 to 48)

Charron J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Rothstein JJ. concurring)

R. v. Rojas, [2008] 3 S.C.R. 111, 2008 SCC 56

Miguel Rojas Appellant

v.

Her Majesty The Queen Respondent

and

Attorney General of Ontario Intervener

• and -

Hugo Rojas Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Rojas

Neutral citation: 2008 SCC 56.

File Nos.: 32080, 32087.

2008: April 22; 2008: October 24.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ.

on appeal from the court of appeal for british columbia

Criminal law — Charge to jury — Vetrovec instruction — Two accused tried together for murder — Accomplice testifying about out‑of‑court statements made to him by both accused — Whether Vetrovec instruction effectively allowed jury to make impermissible use of statements admissible solely against one accused in assessing credibility of accomplice’s testimony concerning the other — Whether trial judge should have instructed jury to make distinct assessments of accomplice’s credibility as it related to each accused.

Criminal law — Charge to jury — Duncan instruction — Two accused tried together for murder — Out‑of‑court statements made by both accused containing inculpatory and exculpatory parts — Trial judge instructing jury that statements of incriminating nature likely to be true, whereas excuses for one’s own behaviour not necessarily carrying same persuasive weight — Whether instruction improper — Whether instruction misled jury.

Two brothers, HR and MR, were charged with second degree murder. At their joint trial before a jury, the evidence against them was largely circumstantial, with the exception of several statements they had made to M in the days following the murder. M, a tenant of the residence where both accused lived and where the victim was killed, testified that on the night in question, he ran into HR and MR arriving at their residence. After HR went into the residence, MR told M that he was leaving later that night “[b]ecause we just took someone down.” M also testified that the next day, he returned to the residence and spoke with HR who said, “I believe my brother already told you something . . . . Now you’re involved. . . . I want you to go burn a car. . . .” HR told M that his brother had driven the car and that he was afraid that a forensic scientist might be able to identify his brother’s hair. M said that he bought some gas to have the car burned. M testified that he did not know that the victim’s body was inside the car. M stated that the next week, he and HR were together at the residence. He confronted HR about the body in the car. HR showed him an area in the upstairs living quarters and said to him, “[w]e took him -- we took him down, right here, we did it right here. . . .” A videotaped statement made by MR to the police before he was apprehended was introduced into evidence. In the statement, MR stated that he spoke with the victim on the day of the murder but had no knowledge of who did it. He denied any involvement in the victim’s death. Other out‑of‑court statements containing both inculpatory and exculpatory statements were also introduced. Both accused were convicted. On appeal, they argued that the trial judge committed several errors of law in his charge to the jury. The Court of Appeal upheld the convictions. The accused appealed to this Court on two grounds: the trial judge erred (1) in permitting the jury to use evidence of out‑of‑court statements admissible against only one accused to bolster the credibility of an unsavoury witness with respect to matters implicating the co‑accused; and (2) in instructing the jury that exculpatory statements do not necessarily carry the same persuasive weight as inculpatory statements.

Held: The appeals should be dismissed.

The trial judge did not err in his instructions on how to assess M’s credibility. He gave the jury a strong caution against relying on M’s testimony without independent confirmation and highlighted for the jury certain aspects of M’s testimony for which there was potentially confirmatory or contradictory evidence. At no point did the trial judge tell the jury that they could use the statements of HR to confirm M’s evidence on matters involving MR, or vice versa. On the contrary, he repeatedly instructed the jury not to use the statements of one accused against the other and to decide the case against each accused separately, based on a careful consideration of the evidence admissible as against that accused. Given the intangible nature of any credibility assessment, it is inevitable for the jury’s assessment of the overall credibility of a witness at a joint trial to be influenced in some way by the totality of the evidence that they have heard, including evidence relating solely to one co‑accused. This result does not constitute an impermissible use of the out‑of‑court statements as alleged. [3] [25‑26]

When faced with statements by an accused containing both inculpatory and exculpatory elements, a trial judge should avoid instructing the jury that the incriminating parts are likely to be true, “otherwise why say them?”, whereas excuses for one’s behaviour do not necessarily carry the same weight. It is dangerous to instruct the jury in a manner which suggests that inculpatory statements should be given more weight than exculpatory statements. The effect of a “mixed statement” (or Duncan) instruction, however, may vary considerably, depending on the precise content of the instruction and its context. Whether the instruction constitutes reversible error is a matter to be determined on a case‑by‑case basis, having regard to the charge as a whole and the evidence at trial. In this case, the Duncan instruction, viewed in context, did not constitute a misdirection. It was clear from the charge that the burden of proof did not shift to HR or MR, that any exculpatory statement need only raise a reasonable doubt, and that the accused were entitled to the benefit of any such doubt. It was also clear that the assessment of the reliability of the statements was left entirely with the jury. [4‑5] [47]

Cases Cited

Approved: R. v. David (2006), 213 C.C.C. (3d) 64, 2006 BCCA 412; referred to: Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811; R. v. Perciballi, [2002] 2 S.C.R. 761, 2002 SCC 51, aff’g (2001), 2001 13394 (ON CA), 54 O.R. (3d) 346; R. v. Duncan (1981), 73 Cr. App. R. 359; R. v. Baskerville, [1916] 2 K.B. 658; R. v. Sharp, [1988] 1 W.L.R. 7; R. v. Aziz, [1995] 2 Cr. App. R. 478; R. v. Ryznar, 1986 4780 (MB CA), [1986] 6 W.W.R. 210; R. v. Harrison (2001), 156 C.C.C. (3d) 117, 2001 BCCA 272; R. v. Leblanc (2001), 2001 12528 (QC CA), 162 C.C.C. (3d) 74; R. v. Samuels (2005), 2005 15700 (ON CA), 196 C.C.C. (3d) 403; R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449; R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3; R. v. Hughes, 1942 22 (SCC), [1942] S.C.R. 517; R. v. Gunning, [2005] 1 S.C.R. 627, 2005 SCC 27; R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345.

APPEALS from a judgment of the British Columbia Court of Appeal (Southin, Ryan and Lowry JJ.A.) (2006), 225 B.C.A.C. 32, 371 W.A.C. 32, 208 C.C.C. (3d) 13, 37 C.P.C. (6th) 252, [2006] B.C.J. No. 870 (QL), 2006 CarswellBC 948, 2006 BCCA 193, upholding the convictions of the accused for second degree murder. Appeals dismissed.

Gil D. McKinnon, Q.C., for the appellant Miguel Rojas.

Matthew A. Nathanson and Andrew Nathanson, for the appellant Hugo Rojas.

Ursula Botz, for the respondent.

John S. McInnes, for the intervener.

The judgment of the Court was delivered by

Charron J. —

1. Overview

[1] Following their joint trial before a judge and jury, Hugo Rojas and Miguel Rojas were convicted of second degree murder in respect of the death of David Bahamonde. On appeal to the British Columbia Court of Appeal, they argued that the trial judge committed several errors of law in his charge to the jury. The Court of Appeal declined to give effect to the appellants’ arguments and affirmed the convictions ((2006), 225 B.C.A.C. 32, 2006 BCCA 193). They appeal from this judgment, but only in respect of the following two errors alleged in the court below.

[2] First, the appellants argue that the trial judge erred in permitting the jury to use evidence of out-of-court statements admissible against only one accused to bolster the credibility of an unsavoury witness with respect to matters implicating the co‑accused. Second, they submit that it was wrong for the trial judge to instruct the jury that exculpatory statements do not necessarily carry the same persuasive weight as inculpatory statements.

[3] On the first ground, I conclude that the trial judge did not err in his instructions on how to assess the credibility of the unsavoury witness, David Miranda. The trial judge gave the jury a strong caution against relying on this witness’s testimony without independent confirmation, in accordance with the principles set out in Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811. The most important aspects of Miranda’s testimony were inculpatory statements allegedly made to him by each appellant. The trial judge therefore properly suggested that the jury look to independent evidence for confirmation of Miranda’s testimony about these statements. He then highlighted for the jury certain aspects of the witness’s testimony for which there was potentially confirmatory or contradictory evidence. At no point did the trial judge tell the jury that they could use the statements of Hugo to confirm Miranda’s evidence on matters involving Miguel, or vice versa. To the contrary, he repeatedly instructed the jury not to use the statements of one appellant against the other. In the circumstances, the appellants’ reliance on this Court’s decision in R. v. Perciballi, [2002] 2 S.C.R. 761, 2002 SCC 51, is misguided, and their argument was properly dismissed in the court below.

[4] The second ground of appeal raises the question whether, when faced with statements by an accused containing both inculpatory and exculpatory elements, a trial judge may, or should, instruct the jury that the incriminating parts are likely to be true “otherwise why say them?”, whereas excuses for one’s behaviour do not necessarily carry the same weight. This “mixed statement” instruction originates from the decision of the English Court of Appeal in R. v. Duncan (1981), 73 Cr. App. R. 359, and, for this reason, it is often referred to as “the Duncan instruction”. As I will explain, I conclude that it is dangerous to instruct the jury in a manner which suggests that inculpatory statements should be given more weight than exculpatory statements and, consequently, that it is best to avoid instructing the jury in this manner.

[5] The effect of a mixed statement instruction of the kind found in Duncan, however, may vary considerably from case to case, depending on the precise content of the instruction and its context. Whether the instruction constitutes reversible error is a matter to be determined on a case-by-case basis, having regard to the charge as a whole and the evidence at trial. In this case, I agree with the Court of Appeal that the instruction, when considered in context, did not constitute a misdirection.

[6] Accordingly, I would dismiss the appeals.

2. The Evidence at Trial

[7] The evidence at trial was reviewed in some detail by Ryan J.A. in the Court of Appeal below. As the appeals before this Court concern solely the appellants’ out‑of‑court statements, I will limit my review of the evidence accordingly.

[8] Hugo and Miguel are brothers. They were charged with second degree murder after the body of Bahamonde was found in the back seat of a burning car. The theory of the Crown was that Hugo and Miguel murdered Bahamonde on February 3, 2001, in the upstairs suite of their home on Fell Street in Burnaby. The motive was unknown.

[9] The evidence against Hugo and Miguel was largely circumstantial, with the exception of several statements made by both men to Miranda, a tenant on the ground floor of the Fell Street residence, in the days following the murder. The Crown relied more particularly on the following incriminating statements made by each accused to Miranda.

[10] Miranda testified that on the night of February 3, he ran into Hugo and Miguel arriving at their home. After Hugo went into the residence, Miranda was told by Miguel that he was leaving later that night “[b]ecause we just took someone down.” Miguel told Miranda not to tell anyone, not even his girlfriend. Miranda then left for the evening with his girlfriend.

[11] Miranda also testified that the next day, he returned to the Fell Street residence and spoke with Hugo. Hugo said, “. . . I believe my brother already told you something . . . . Now you’re involved. . . . I want you to go burn a car. . . .” Hugo told Miranda that his brother had driven the car and that he was afraid that a forensic scientist might be able to identify his brother’s hair. Miranda said that he did not want to do it but eventually agreed to buy some gas for Christian Quintanilla who was asked and agreed to burn the car. Miranda testified that he did not know that the victim’s body was inside the car.

[12] Miranda stated that the next week, he and Hugo were together at the house on Fell Street. He confronted Hugo about the body in the car. Hugo showed him an area in the upstairs living quarters and said to him, “[w]e took him ‑- we took him down, right here, we did it right here. . . .” Miranda said he could see scratches on the wall and a white spot on the carpet.

[13] The Crown also introduced in evidence a videotaped statement made by Miguel to the police before he was apprehended to show that he had been in contact with the deceased on the day of the murder. In the statement, Miguel stated that he spoke with the deceased on the day of the murder but had no knowledge of who did it. He denied any involvement in the victim’s death. After being asked to speculate why the deceased might have been killed, Miguel mentioned that he had heard about a debt owed to Bahamonde and speculated that the debt might involve drugs.

[14] Other out-of-court statements introduced in evidence were the following. Quintanilla testified that when he saw Hugo at a nightclub shortly after burning the car, Hugo said to him, “[t]ell me everything’s okay. Just tell me everything’s okay.” Quintanilla heard Hugo say to Miguel, “[T]hat guy’s . . . talking. . . .” Quintanilla also heard his girlfriend ask Hugo why he didn’t tell Quintanilla about the body in the car. Hugo responded: “What, are you calling me a murderer? I’m not a -- are you calling me a murderer? . . . I never told him to do anything. I never told him to burn a car. I never told him to do anything.”

[15] Neither Hugo nor Miguel testified at trial. Counsel for Miguel relied on the exculpatory statements contained in Miguel’s videotaped statement to police. Counsel for Hugo took the position that Hugo’s statements to Quintanilla were exculpatory and were capable of raising a reasonable doubt as to his guilt. The Crown, for its part, relied heavily on the incriminating statements made by both accused to Miranda. Hugo and Miguel’s out-of-court statements thus figured prominently in the trial judge’s charge to the jury. I will review the relevant parts of the charge and of the decision below in the course of my analysis on each ground of appeal.

3. Analysis

3.1 The Vetrovec Warning

[16] In his charge to the jury, the trial judge gave a special cautionary instruction concerning the evidence of both Miranda and Quintanilla in accordance with the principles set out in Vetrovec. In Vetrovec, this Court revisited the rules of corroboration enunciated in R. v. Baskerville, [1916] 2 K.B. 658 (C.C.A.). Dickson J. (as he then was), writing for the Court, rejected the technical meaning of corroboration in favour of a “common sense” approach to the testimony of accomplices (p. 828). This approach focusses on whether there is evidence that tends to confirm that the witness is telling the truth. Dickson J. stated that in appropriate cases, a “clear and sharp warning” should be given to jurors about the dangers of accepting the unconfirmed evidence of an accomplice (p. 831). He also suggested that the trial judge provide the jury with examples of the type of evidence capable of confirming the witness’s testimony.

[17] The appellants only take issue with one aspect of the trial judge’s instructions with respect to Miranda’s testimony. Put briefly, the appellants argue that the Vetrovec instruction effectively allowed the jury to make impermissible use of out-of-court statements admissible solely against one accused in assessing the credibility of the accomplice’s testimony concerning the other. The relevant parts of the Vetrovec instruction concerning Miranda’s testimony may be summarized as follows.

[18] The trial judge gave a strong Vetrovec warning in connection with Miranda’s testimony. He told the jury that Miranda’s evidence of the admissions made by Hugo and Miguel was of “particular concern because they are the only direct evidence before you that either or both of Hugo Rojas or Miguel Rojas killed David Bahamonde” (A.R., at pp. 549-50). The trial judge explained that Miranda was an accomplice by virtue of his role in burning the car. Miranda admitted that he was prepared to burn the car to destroy evidence, and that he lied to police to cover up his involvement in the incident. The trial judge told the jury that given the many reasons for doubting Miranda’s veracity as a witness, they should examine the other evidence in the case and look for evidence to confirm the important parts of his testimony. The trial judge then provided the jury with several examples of independent evidence which supported or undermined Miranda’s testimony, including forensic evidence, cell phone records and evidence of clean-up efforts in the Fell Street residence.

[19] Some of the material parts of Miranda’s testimony in respect of which the trial judge instructed the jury to look for independent confirmatory evidence included out-of-court statements admissible against only one of the two accused. It is those parts of the Vetrovec warning that are at issue on this ground of appeal. The impugned instructions are conveniently summarized in the Crown’s factum as follows:

• In paragraph 85, the trial judge referred to Miranda’s testimony about the location pointed to by Hugo Rojas when he said “We did it right here”. As to potentially confirming evidence, the trial judge said that the forensic evidence related to the finding of blood and D.N.A. from blood consistent with the D.N.A. of David Bahamonde upstairs at 149 Fell Avenue “appears to be generally consistent, as to location” with Miranda’s evidence on this point.

• In paragraphs 87 and 88, the trial judge referred to Miranda’s testimony that Miguel Rojas told him on Saturday, February 3, that he was going to Calgary or Edmonton. As to potentially confirming evidence, the trial judge said that this aspect of Miranda’s evidence “may be consistent with” circumstantial evidence of phone records showing that the Rojas land line at 149 Fell Avenue received two calls from Calgary, as well as the records relating to Armando Sanchez’s cellular phone showing calls made and received from or to Calgary.

• In paragraph 90, the trial judge referred to Miranda’s testimony that Hugo Rojas said “there’s still something there” on top of the doorframe, and removed it with a kitchen knife. As to potentially confirming evidence, the trial judge said that Miranda’s evidence on this point “appear[s] to be consistent with” the evidence of forensic identification officers that there were signs of cleaning of the walls in the upstairs suite at 149 Fell Avenue.

• In paragraph 92, the trial judge referred to Miranda’s testimony that Hugo Rojas called him on the evening of Sunday, February 4, asked him to come to 149 Fell Avenue, and talked to him about burning the car. As to potentially confirming evidence, the trial judge said that the telephone records confirming that a call was made from the Rojas land line at 6:49 p.m. that evening to Karen Ramirez’s cell phone “may confirm” Miranda’s evidence on this point. [Emphasis deleted; R.F., at para. 51.]

[20] The trial judge also told the jury that he had not pointed out all of the potentially confirmatory evidence. Rather, they should use his examples as a guide for identifying other evidence that might confirm or contradict Miranda’s evidence. The judge told the jury to ask themselves whether enough of the “important parts” of Miranda’s testimony had been confirmed by other evidence that they considered reliable to persuade them that his evidence was true and that they could rely on it: A.R., at pp. 547-48.

[21] The appellants’ principal difficulty with this aspect of the Vetrovec instruction is that, in the end result, Miranda’s testimony about alleged incriminating statements made by one accused, if confirmed by independent evidence, could effectively serve to bolster his overall credibility and therefore strengthen his testimony against the other accused. This, it is argued, results in an impermissible use of those out-of-court statements that are only admissible against their maker. The appellants submit that it was incumbent upon the trial judge to instruct the jury to make separate and distinct assessments of Miranda’s credibility as it related to each accused. In support of this contention, the appellants rely on the majority decision of the Ontario Court of Appeal in R. v. Perciballi (2001), 2001 13394 (ON CA), 54 O.R. (3d) 346, whose reasoning was substantially adopted on appeal to this Court ([2002] 2 S.C.R. 761, 2002 SCC 51).

[22] Ryan J.A. succinctly summarized the circumstances and holding in Perciballi as follows (at para. 82):

Counsel likened this aspect of the charge to instructions given to a jury in the Ontario case of R. v. Perciballi . . . . In Perciballi it was alleged that a co‑accused, Antonio Portante, had placed one of two diversionary calls to the police to facilitate an armoured car robbery. The only evidence against Antonio Portante was a witness who placed him in a restaurant near the pay telephone from which the call was placed, and the evidence of an accomplice, DeFrancesca, who testified that he placed the other of the two calls. Portante’s brother, Angelo, another co‑accused, made an out‑of‑court statement that Antonio Portante had placed one of the two calls. The statement made by Angelo Portante was admissible against him to show that he, Angelo Portante, was aware of details of the plot. It was not admissible against Antonio Portante. Against Antonio Portante it was merely hearsay. Nonetheless the trial judge permitted the Crown to argue to the jury that the statement of Angelo Portante confirmed the evidence of DeFrancesco. The Ontario Court of Appeal quashed the conviction of Antonio Portante holding that the effect of this use of the evidence was to indirectly achieve what the Crown could not do directly, that is, to permit the jury to use the Angelo Portante statement against Antonio Portante. Counsel for Miguel Rojas says that this parallels what has happened in the case at bar with Hugo Rojas’ statement.

[23] Ryan J.A. concluded that the principle in Perciballi found no application in this case. She explained as follows (at para. 83):

With respect, I am of the view that what was at stake in each of the two cases is quite different. In Perciballi the trial judge permitted the jury to use the out‑of‑court statement of the co‑accused as confirmation that the testimony of the accomplice against the accused was true. The opposite occurred in the case at bar — the jury was told that there was evidence in the case against Hugo Rojas that tended to confirm David Miranda’s testimony that Hugo Rojas made certain out‑of‑court statements to him.

[24] I agree with Ryan J.A.’s analysis on this point. It is true that the underlying logic to the majority judgment in Perciballi could arguably be extended so as to require a parsing of a single witness’s credibility in the manner advocated by the appellants in this case. In other words, in deciding whether Miranda was telling the truth about the alleged statements made by Miguel, the jury would have to discount the fact that his overall credibility may have been bolstered by the evidence that confirmed the truth of his testimony concerning Hugo’s statements, and vice versa. Indeed, Doherty J.A. argued eloquently in his dissenting reasons in Perciballi that if pushed to its limits, the majority’s ruling would have that precise effect. I remain unpersuaded that the principle in Perciballi leads inevitably to this result.

[25] In my respectful view, it is one thing for a jury to be expressly directed, as was done in Perciballi, to consider an out-of-court statement admissible only as against one accused in reaching its decision concerning the other. Such a direction would result in an impermissible use of the out-of-court statement. It is quite another matter, however, for the jury’s assessment of the overall credibility of the witness to be influenced in some way by the totality of the evidence that they have heard, including evidence relating solely to one co-accused. The latter is inevitable, given the intangible nature of any credibility assessment. Although the analogy is not perfect, we may view the matter in this way. It is well established that it is improper for the Crown or the judge to expressly comment on the accused’s failure to testify. Such a comment could compromise the accused’s right to silence and run afoul of the presumption of innocence. Yet, this does not mean that the accused’s silence at his trial is irrelevant. On the contrary, an accused’s failure to testify may well impact on a jury’s overall assessment of the Crown’s case and the credibility of any witnesses whose testimony stands uncontradicted.

[26] Here, the appellants take the position that the trial was unfair because the jury’s assessment of Miranda’s testimony may well have been different if the accused had been tried separately, because the jury at each trial would not have heard the totality of the evidence called at the joint trial. The simple answer to the appellants’ argument is that the accused were not tried separately. There is a strong societal interest in having co-participants in a single criminal enterprise tried together. Any risk of prejudice of the kind alleged here was amply guarded against by the trial judge’s repeated instructions to the jury to decide the case against each accused separately, based on a careful consideration of the evidence admissible as against that accused.

3.2 The Mixed Statement Instruction

[27] The second ground of appeal relates to the trial judge’s instructions to the jury on the weight to be given to the appellants’ various out-of-court statements. Given the prominence of the evidence, the trial judge gave repeated instructions to the jury concerning the use that could be made of the out-of-court statements at the beginning of the trial, during the course of the testimony about those statements and during the final charge. Although not objected to at trial, the appellants take issue with the following comment made by the trial judge in the course of the final charge:

Since some of the alleged statements of each accused contain exculpatory statements or denials which tend to exonerate them, you must consider that, in the ordinary course of human behaviour, it often occurs that statements of an incriminating nature such as admissions or confessions are likely to be true, otherwise why say them. On the other hand, excuses for one’s own behaviour do not necessarily carry the same persuasive weight. [Emphasis added; A.R., at p. 572.]

[28] The impugned charge requires some elaboration on its origin, its underlying rationale and its history in Canadian jurisprudence.

[29] The underlined text originates from the English Court of Appeal’s decision in Duncan. Duncan was charged with murder in respect of the death of the woman with whom he was living. He did not testify at his trial. However, in several out-of-court statements made to a neighbour and to the police, he admitted the killing but was unable to explain the motive for his actions. He suggested that he must have lost his temper when the victim teased him. The issue before the court was whether the latter assertion about a possible motive could be considered for the truth of its contents and give rise to a possible defence of provocation. The basic rules of evidence at play were explained by the Court of Appeal as follows (at p. 363):

(1) What a person says out of court is, generally speaking, not admissible to prove the truth of what he says. (2) It may be admissible if — (a) it is an exception to the hearsay rule, in which case it is evidence of the truth of what is stated; (b) it falls outside the hearsay rule, that is to say if it is adduced for a purpose other than proving the truth of the statement — an example of this is to be found in Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965, where a statement was relevant to the question of whether there had been duress or not. The only relevant exception to the hearsay rule in the present circumstances is that relating to admissions against interest or confessions.

[30] In short, the inculpatory parts of the statements were admissible under the confessions exception to the hearsay rule, whereas the exculpatory parts of the statements were self-serving and inadmissible. The Crown agreed, however, that where the statement is adduced as an admission against interest, the whole of the statement must be adduced. The Court of Appeal agreed with this concession, noting that “[a]ny other course would obviously be unfair” (p. 363). The question then became whether the exculpatory parts of the mixed statements could constitute evidence of the truth of their contents, or whether they were admissible for the limited purpose of providing context to the admissions against interest. The Crown advocated the latter rule.

[31] The English Court of Appeal did not accede to the Crown’s argument, stating that it could prove a very difficult task to explain the difference between those parts of a mixed statement which were truly a confession and those parts which were exculpatory. The court therefore ruled that the entirety of the statement was admissible for the truth of its contents but recommended that the jury be charged in the following manner (at p. 365):

Where a “mixed” statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. [Emphasis added.]

This instruction was later endorsed by the House of Lords in R. v. Sharp, [1988] 1 W.L.R. 7, and more recently in R. v. Aziz, [1995] 2 Cr. App. R. 478.

[32] Canadian courts have been divided on the usefulness of the mixed statement instruction. While the precise wording of the instruction has varied from case to case, some versions of it have found appellate approval: see R. v. Ryznar, 1986 4780 (MB CA), [1986] 6 W.W.R. 210 (Man. C.A.), and R. v. Harrison (2001), 156 C.C.C. (3d) 117, 2001 BCCA 272. In other cases, the “Duncan instruction” was held to constitute reversible error: see R. v. Leblanc (2001), 2001 12528 (QC CA), 162 C.C.C. (3d) 74 (Que. C.A.), and R. v. Samuels (2005), 2005 15700 (ON CA), 196 C.C.C. (3d) 403 (Ont. C.A.).

[33] The British Columbia Court of Appeal recently considered a Duncan-type instruction in R. v. David (2006), 213 C.C.C. (3d) 64, 2006 BCCA 412, a decision released shortly after the hearing of this appeal in the court below. Counsel for Miguel Rojas advised this Court that following the decision in David, the Court of Appeal agreed to receive additional submissions from counsel on the impact of David on the case at bar. After receiving the submissions, the Court of Appeal advised that it would issue no further comment.

[34] Ryan J.A., writing for the court in David, reviewed the divergent appellate decisions on the mixed statement instruction and concluded that while none of them were determinative of the question that occupied the court, “lessons [could] be taken from Harrison, Rojas and Samuels” (para. 42). She explained as follows (at para. 42):

While an appeal court will look at each case to determine whether a like charge has led to an unfair trial, it is dangerous for a trial judge to instruct a jury that inculpatory and exculpatory statements ought to be weighed differently. Trial judges should leave such “common sense” arguments to the lawyers in their closing addresses.

In David, having regard to the wording of the instruction and its context, the court concluded that “what otherwise might have been a suggestion as to how the jury could approach the weighing of the evidence” was effectively transformed “to a rule of law that they were obliged to apply” (para. 44). The court therefore gave effect to this ground of appeal in David and ordered a new trial.

[35] As we can see, the Duncan instruction is rooted in basic evidentiary rules concerning the admission of out-of-court statements. As the court put it: “What a person says out of court is, generally speaking, not admissible to prove the truth of what he says” (p. 363). This general exclusionary rule applies in regard to both inculpatory and exculpatory statements. Confessions, however, fall within a recognized exception to the hearsay rule, and the very rationale for the admissibility of admissions by an accused is that admissions against interest are likely to be true. As Cory J. stated in R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, at para. 17:

. . . the basis for the admission of a statement of the accused as an exception to the rule against hearsay is that what people freely say which is contrary to their interest is probably true.

[36] Exculpatory out-of-court statements made by an accused are also subject to the general exclusionary rule against hearsay. Where the accused testifies, such statements are generally inadmissible because they are viewed as self-serving and lacking in probative value. Where the accused does not testify, there is an additional rationale for excluding such statements. McIntyre J. explained it in R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, as follows (at p. 22):

As a general rule, the statements of an accused person made outside court — subject to a finding of voluntariness where the statement is made to one in authority — are receivable in evidence against him but not for him. This rule is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross‑examination.

[37] Of course, the general rule that excludes out-of-court exculpatory statements is not without exceptions. One such exception is relevant here — the mixed statement exception. Just as in England, it has long been established that where the Crown seeks to tender an accused’s out‑of-court statement which contains both inculpatory and exculpatory parts, it must tender the entire statement, and the exculpatory portions are substantively admissible in favour of the accused: R. v. Hughes, 1942 22 (SCC), [1942] S.C.R. 517, at p. 521. Fairness to the accused is the obvious rationale for the mixed statement exception. The exception is also based on the more pragmatic consideration that it is often difficult to determine which parts of a statement are inculpatory and which parts are exculpatory.

[38] In recognizing both the basis for admitting inculpatory statements and the exceptional admissibility of an accused’s untested statements, the Duncan instruction, as such, accurately reflects the state of the law. In England, the instruction is also perceived as achieving the “right balance”, as the House of Lords explained in Aziz (at p. 485):

Moreover, I would reject the suggestion that the law as stated in Sharp is unduly balanced in favour of the defendants who do not testify. On the contrary, as was emphasised in Duncan and Sharp, a judge is entitled to comment adversely on the quality of the exculpatory parts of a mixed statement which has not been tested by cross‑examination. The right balance has been found. [Emphasis added.]

Judges in Canada, as in England, are also entitled to comment on the evidence so long as they make it clear that factual issues are for the jury to decide: R. v. Gunning, [2005] 1 S.C.R. 627, 2005 SCC 27, at para. 27. The Crown therefore urges this Court to adopt the Duncan instruction in Canada.

[39] With respect to the contrary position adopted by our English colleagues, I would not accede to the Crown’s argument. In certain circumstances, it may be useful to explain to the jury why the law permits them to hear a particular piece of evidence where such instruction will assist them with their task. This may be the case, for example, where evidence is admitted for a limited purpose only. The jury may be more likely to comply with the limiting instruction if they understand the underlying rationale for the rule. In most circumstances, however, expounding the rationale for an evidentiary rule may only serve to confuse the jury unnecessarily or risk encroaching unduly upon their role as fact finders. For example, I can think of no principled reason to explain to a jury that they are hearing the accused’s confession because the court is satisfied beyond a reasonable doubt that it was voluntarily made. Likewise, it would only risk encroaching unduly on the jury’s domain to tell them that they are hearing a piece of similar fact evidence because, in the judge’s view, the similarities with the offence are such that they “defy coincidence”.

[40] In the same way, I see little advantage in expounding for the jury the underlying rationale for the mixed statement exception. If only for the pragmatic reason that it is often very difficult to differentiate between admissions and excuses, I too conclude, as did Ryan J.A. in David and in the court below, that it is dangerous for the judge to instruct the jury in a manner that suggests that inculpatory and exculpatory statements ought to be weighed differently. Such “common sense” comments are better left to the advocacy of counsel (David, at para. 42). Therefore, I conclude that the Duncan instruction should not be adopted by Canadian trial courts.

[41] The question whether a Duncan-type instruction has resulted in an unfair trial in any given case, however, will depend entirely on the particular words used and their context. For example, as the finding of the court in David exemplifies, where the instruction is couched in terms of a legal presumption, the prejudicial effect may be difficult to overcome. In this case, as I will explain, having regard to the permissive wording of the impugned instruction, the charge as a whole and the nature of the statements at issue, it is my view that the instruction was more unfortunate than fatal.

[42] The Duncan instruction related to out-of-court statements made by Hugo and Miguel to Miranda, Quintanilla and the police. It was given in the context of the following particular instructions regarding out-of-court statements.

[43] First, the trial judge instructed the jury that any statement made by an accused person is only evidence against the accused person who made it, unless it was made in the presence of the other accused person who can be said by his silence to have adopted the statement as his own. Second, he told the jury that they could not consider any alleged out-of-court incriminating statement unless they were satisfied beyond a reasonable doubt that the statement was made by the accused. Third, the jury was told that if they were satisfied beyond a reasonable doubt that the statement was made, they must then determine whether the statement was true. (I pause to note that instructions two and three can be problematic because it will often prove difficult to differentiate between inculpatory and exculpatory statements. If these instructions are given, it becomes important to dispel any notion that exculpatory statements need be proven beyond a reasonable doubt before they can be considered by the jury. This difficulty can be avoided altogether if the jury is instructed on the standard of proof beyond a reasonable doubt solely in respect of the elements of the offence and the ultimate verdict, and not in respect of particular items of evidence: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345.)

[44] Fourth, the jury was told to consider all of the denials and explanations when deciding whether the statements were true. Fifth, the trial judge charged the jury along the lines of Duncan in the following terms:

Since some of the alleged statements of each accused contain exculpatory statements or denials which tend to exonerate them, you must consider that, in the ordinary course of human behaviour, it often occurs that statements of an incriminating nature such as admissions or confessions are likely to be true, otherwise why say them. On the other hand, excuses for one’s own behaviour do not necessarily carry the same persuasive weight. Nevertheless, a denial or other exculpatory statement may raise a reasonable doubt. That is so because any statement or part of a statement allegedly made by an accused that is exculpatory, in the sense that it denies that he committed the offence, or provides an innocent explanation, is evidence in favour of that accused, and you need not be satisfied beyond a reasonable doubt that he said it or that the denial or his explanation is true. If the evidence indicates that the accused Hugo Rojas or Miguel Rojas could reasonably have made the exculpatory statement and it is reasonable to believe that the exculpatory statement could be true, then it may raise a reasonable doubt in your mind in favour of Hugo Rojas or Miguel Rojas, or both. [Emphasis added; A.R., at pp. 572-73.]

[45] The trial judge then reminded the jury that they did not have to accept or reject everything a witness said and reminded them that Hugo and Miguel were each entitled to the benefit of any reasonable doubt, including a reasonable doubt about the truth of any alleged admission or confession or any part of them. Finally, he emphasized that it was up to the jury to decide how much weight or importance, if any, they should give to any statement or any part of the statement if they decided the statement was made and that it is true.

[46] Elsewhere in his charge to the jury, the trial judge referred several times to the Crown’s burden of proof and to the principle of reasonable doubt. He explained to the jury, when making specific reference to Miguel’s police statement, that to the extent that his statement was exculpatory, it was evidence in favour of Miguel and that the jury need not be satisfied beyond a reasonable doubt that it was true (A.R., at pp. 557‑58). Rather, the trial judge emphasized, the evidence need only raise a reasonable doubt.

[47] When viewed in context, I am satisfied that the Duncan instruction could not have misled the jury. It was clear from the charge that the burden of proof did not shift to Hugo or Miguel, that any exculpatory statement need only raise a reasonable doubt, and that the accused were entitled to the benefit of any such doubt. In commenting on the relative weight that may be attributed to the statements, the trial judge did not exceed his function. It was clear that the assessment of the reliability of the statements was left entirely with the jury. Accordingly, I agree with the Court of Appeal below that the Duncan instruction did not constitute reversible error in the context of this case.

[48] Accordingly, for these reasons, I would dismiss the appeals.

Appeals dismissed.

Solicitor for the appellant Miguel Rojas: Gil D. McKinnon, Vancouver.

Solicitor for the appellant Hugo Rojas: Matthew A. Nathanson, Vancouver.

Solicitor for the respondent: Attorney General of British Columbia, Vancouver.

Solicitor for the intervener: Attorney General of Ontario, Toronto.