SUPREME COURT OF CANADA

Citation: R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540

Date: 20090723

Docket: 32883

Between:

Her Majesty The Queen

Appellant

and

Christopher Anthony Layton

Respondent

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

Reasons for Judgment:

(paras. 1 to 38)

Dissenting Reasons:

(paras. 39 to 68)

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

Cromwell J. (McLachlin C.J. concurring)

R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540

Her Majesty The Queen Appellant

v.

Christopher Anthony Layton Respondent

Indexed as: R. v. Layton

Neutral citation: 2009 SCC 36.

File No.: 32883.

2009: April 21; 2009: July 23.

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

on appeal from the court of appeal for manitoba

Criminal law — Trial — Charge to jury — Reasonable doubt — Question from jury — Charge on reasonable doubt using Lifchus model — Jury asking trial judge for further directions on reasonable doubt — Trial judge repeating in recharge reasonable doubt instructions given in main charge — Whether trial judge erred in repeating same instructions.

The accused was charged with sexual assault. Credibility of the complainant and the accused was the central issue for the jury in deciding whether the Crown had proved the offence beyond a reasonable doubt. The trial judge instructed the jury on reasonable doubt essentially following the Lifchus suggested charge and provided a written copy of her charge in the jury room. The jury came back with a question: “Jury requests clarification on reasonable doubt section of charge to the jury. Particularly difference between absolute certainty and balance of probabilities.” The trial judge simply repeated the original charge almost verbatim. She ended her recharge by saying that every attempt to explain the words “reasonable doubt” leads to more confusion and that there was very little she could add to clarify the definition of these words. The accused was convicted. In a majority decision, the Court of Appeal found that the trial judge had erred in not providing a responsive answer, quashed the conviction and ordered a new trial.

Held (McLachlin C.J. and Cromwell J. dissenting): The appeal should be dismissed.

Per Binnie, Deschamps, Fish, Charron and Rothstein JJ.: When judges follow the Lifchus suggested charge their charges on the question of reasonable doubt are unassailable. Where the jury remains in doubt after the judge’s charge, however, and asks a question about the standard of proof, the trial judge must attempt to answer the jury’s question in an effort to assist them in understanding what is required of them. Otherwise, there will be uncertainty about the integrity and reliability of the jury’s verdict and the fairness of the trial will be in question. While, in some cases, repeating the original charge verbatim might be all that is required to assist the jury, in this case the jury had the original charge in writing and had deliberated for a full day. Their question clearly indicated that there was some confusion on their part about the standard of proof. It would have been preferable for the judge to provide clarifications to the jury. Having not done so, it was imperative for the judge to leave the door open for the jury to come back with further, more precise, questions should the standard of proof remain unclear to them. Here, the trial judge’s comment at the end of her recharge essentially implied that, even though the jury appeared to have been confused, the judge could not assist them. The result is that the trial judge failed to provide a responsive answer to the jury’s question and her final comments discouraged further questions on the standard of proof. This raises a concern that the verdict may not have been based on a proper understanding of the burden of proof and that there was therefore a miscarriage of justice. It could not be inferred from the fact that the jury did not ask further questions that their confusion was clarified. [2‑3] [23‑24] [29] [31] [33] [37]

Per McLachlin C.J. and Cromwell J. (dissenting): The key question in this case was whether the legally correct instructions given by the trial judge in both her charge and recharge, taken as a whole, gave rise to a reasonable likelihood that the jury did not understand the legal requirement that the Crown must prove guilt beyond a reasonable doubt. [40] [67]

To state that the jury was struggling with the concept of reasonable doubt was reading too much into the jury’s question. Their problem was with the term “balance of probabilities”. Although the judge’s answer to the jury’s question would not have assisted their understanding of this term, nothing in the question indicated that the jury failed to understand the requirement of proof beyond reasonable doubt. The jury did not need to understand balance of probabilities in order to apply reasonable doubt properly. In the context of this charge and recharge, there was no reasonable likelihood that the judge’s failure to explain the term “balance of probabilities” had any impact on the jury’s understanding of the critical point that proof beyond reasonable doubt requires more than proof that the accused was “probably” or “likely guilty”. Similarly, the judge’s failure to link those terms to the expression proof on a “balance of probabilities” did not give rise to any likelihood that the jury misunderstood this critical point. [44‑45] [50] [54]

The jury received correct and readily understandable instructions about reasonable doubt. While the instructions which placed reasonable doubt on a spectrum of degrees of certainty may not have assisted this jury, this should not lead to the conclusion that they also failed to grasp the other explanations of the term included in the charge and recharge, especially where there was no question that the jury understood the very important point that proof beyond a reasonable doubt requires more than proof of probable or likely guilty. [57]

The trial judge did not err by not attempting a new, differently worded explanation of “balance of probabilities” and “absolute certainty”. An answer to a jury’s question completeness and accuracy, while it should be as complete and accurate as possible, must be assessed in the context of the law concerning the particular question posed. The legal landscape around this jury’s question is very complex and the possibility of reversible error in this part of the charge is great. A court reviewing a judge’s answer to the jury’s question should take a practical view of the risks and benefits of the trial judge’s undertaking the course suggested after the fact. Here, the judge’s reluctance to depart from the well‑established language approved by case law was entirely justified: not only were the risks of attempting some further explanation significant, but also the potential for its appreciably helping the jury were meagre. As well, the trial judge added in the recharge that her obligation was to provide a direction on reasonable doubt and directed the jury’s attention to that concept in the instructions. This, in itself, reminded the jury of what was critical to their deliberations. Although a judge should not discourage jury questions on points of difficulty, the judge’s instructions in this case were realistic. [58‑61] [64] [66]

Cases Cited

By Rothstein J.

Applied: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320; referred to: R. v. Tymiak, 2005 ABCA 22, 363 A.R. 126; R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521; R. v. D.P., 2002 ABCA 285, 317 A.R. 375; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628; R. v. Desveaux (1986), 1986 CanLII 153 (ON CA), 26 C.C.C. (3d) 88; R. v. M. (M.C.) (2003), 2003 CanLII 23732 (ON CA), 176 C.C.C. (3d) 263; R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670.

By Cromwell J. (dissenting)

R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320; R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Brydon (1995), 1995 CanLII 6267 (BC CA), 37 C.R. (4th) 1, rev’d 1995 CanLII 48 (SCC), [1995] 4 S.C.R. 253; R. v. Bisson, 1998 CanLII 810 (SCC), [1998] 1 S.C.R. 306.

Authors Cited

Canadian Judicial Council. National Committee on Jury Instructions. Jury Instructions. Ottawa: The Council, 2008 (online: http://www.cjc-ccm.gc.ca/english/lawyers_en.asp?selMenu=lawyers_juryinstruction_en.asp).

Paciocco, David M., and Lee Stuesser. The Law of Evidence, 5th ed. Toronto: Irwin Law, 2008.

Wilson, R. Dean, Nicole J. Garson and Christopher E. Hinkson. Civil Jury Instructions, 2nd ed. Vancouver: Continuing Legal Education Society of British Columbia, 2009.

APPEAL from a judgment of the Manitoba Court of Appeal (Monnin, Hamilton and Chartier JJ.A.), 2008 MBCA 118, 231 Man. R. (2d) 143, 437 W.A.C. 143, 238 C.C.C. (3d) 70, 60 C.R. (6th) 386, 2008 CarswellMan 518, [2008] M.J. No. 346 (QL), setting aside the accused’s conviction for sexual assault and ordering a new trial. Appeal dismissed, McLachlin C.J. and Cromwell J. dissenting.

Rustyn W. N. Ullrich and Richard A. Saull, for the appellant.

Paul Walsh, Q.C., for the respondent.

The judgment of Binnie, Deschamps, Fish, Charron and Rothstein JJ. was delivered by

[1] Rothstein J. — This appeal as of right raises the question of the response required of a trial judge in a criminal case when, following the judge’s charge, the jury asks a question about the standard of proof. Where the trial judge provides the jury with a proper charge, need the judge go further in response to a question than repeating the charge as originally given?

[2] At one time there had been considerable confusion about the way in which proof beyond a reasonable doubt was to be explained to a jury: see D. M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at p. 526, and the Canadian Judicial Council website at http://www.cjc‑ccm.gc.ca/english/lawyers_en.asp?selMenu=lawyers_juryinstruction_en.asp. In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, Cory J. set out the principles for instructing juries on this issue and provided a suggested charge. While not a “magic incantation”, the charge formulated in Lifchus has been followed by trial judges and has formed the basis of a model jury instruction issued by the Canadian Judicial Council for judges to read when informing juries about the nature of the criminal standard of proof and the issues that are specific to the case: see R. v. Tymiak, 2005 ABCA 22, 363 A.R. 126, at para. 6. When judges follow the Lifchus suggested charge or the model jury instructions issued by the Canadian Judicial Council, their charges on the question of reasonable doubt are unassailable: see Lifchus, at para. 40.

[3] Trial judges are understandably reluctant to depart from the Lifchus or model charge for fear of straying into error or misleading the jury. However, where the jury remains in doubt after the judge reads the charge and asks a question about the standard of proof, I am of the opinion that the trial judge must attempt to answer the jury’s question in an effort to assist them in understanding what is required of them. Otherwise, there will be uncertainty about the integrity and reliability of the jury’s verdict and the fairness of the accused’s trial will be in question: see Lifchus, at paras. 13-14.

[4] As Cory J. explained at para. 13 of Lifchus, it is of fundamental importance to the criminal justice system that jurors clearly understand the meaning of the term “proof beyond a reasonable doubt”:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to the presumption of innocence. That jurors clearly understand the meaning of the term is of fundamental importance to our criminal justice system. . . . 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.

[5] Here, the trial judge provided the jury with a charge essentially in the words suggested by Cory J. in Lifchus. When the jury came back with a question about the standard of proof, the trial judge, not wanting to mislead or confuse the jury, simply repeated the charge she had originally given, almost verbatim.

[6] In the Manitoba Court of Appeal’s majority judgment, Hamilton J.A. (with Chartier J.A. concurring) found that the trial judge had erred in not providing a responsive answer to the question asked by the jury. It allowed the accused’s appeal, quashed the conviction and ordered a new trial: 2008 MBCA 118, 231 Man. R. (2d) 143. Monnin J.A., in dissent, held that providing anything more than a repetition of the initial charge would have led the trial judge into error and confused the jury.

[7] I agree with the decision and disposition ordered by the majority and would dismiss this appeal.

1. Facts

[8] The alleged offence of sexual assault occurred on August 7, 2004 in Winnipeg. The complainant, who was 16 years of age at the time, had gone out drinking with friends late on the evening of Friday, August 6. She and her friends wanted to attend a house party but they were denied entry. As a result, they went to a park across the street from where the party was taking place.

[9] The complainant testified that in addition to alcohol, she had shared a marijuana “joint” with some friends. She became dizzy and characterized herself as intoxicated. The complainant passed out and says she awoke with the accused engaging in sexual intercourse with her. The accused admitted speaking to her in the park and trying to help her but denied sexual contact.

[10] The accused was charged with sexual assault. As stated by the majority of the Court of Appeal at para. 2, “the credibility of the complainant and the accused was the central issue for the jury in deciding whether the Crown had proved the offence beyond a reasonable doubt”.

[11] The trial judge provided the jury with a thorough 71-page charge. The jury had a written copy of the judge’s charge in the jury room.

[12] The charge had correctly instructed the jury that, “[y]ou must find Christopher Layton not guilty of the offence unless Crown counsel satisfies you beyond a reasonable doubt that he is guilty.”

[13] The trial judge then went on to explain reasonable doubt:

A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or lack of evidence or absence of reliable evidence. It is a doubt about an essential element of an offence.

It is not enough for you to believe that Mr. Layton is probably or likely guilty. In those circumstances, you must find him not guilty because Crown counsel would have failed to satisfy you of his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high and does not exist in law. However, the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities. Something less than absolute certainty is required . . ., and something more than probable guilt is required. [A.R., at pp. 115-16]

[14] The jury deliberated all day but did not reach a verdict. The next day, the jury provided a handwritten question to the judge.

Jury requests clarification on reasonable doubt section of charge to the Jury. Particularly difference between absolute certainty and balance of probabilities. Page 15.

[15] The trial judge conferred with counsel, both of whom provided some suggestions to the judge as to how to answer the question. Both counsel agreed that it may have been the concept of balance of probabilities that was causing confusion. Defence counsel, Mr. Cramer, stated:

Well, the only thing is I think they’re confused about what balance of probabilities means and . . . . [A.R., at pp. 155-56]

Crown counsel, Mr. Ullrich, said:

But again, I think we’re conceding what Mr. Cramer said. The concept of balance of probabilities might be the sticking point here, given the way that they’ve worded the question as well it seems to be that that might be one of the issues in their minds. [A.R., at p. 156]

Nonetheless, the judge decided not to address the concept of balance of probabilities and simply to repeat the original charge. The trial judge explained to counsel:

. . . I think the best approach at this time is to simply tell them that, you know, it’s a difficult ‑‑ it’s not, strictly speaking, a definition. To define it would in all likelihood lead to more confusion. In terms of the balance of probabilities, I’m not going to touch that at this point. I’m going to go over what I said with them previously. Sometimes when you hear it as opposed to read it, it can help. If they have any further problems I’m sure they’ll come back to us. But I think the best approach at this point is to be cautious and to not say anything that might in some way prejudice, prejudice either side. [Emphasis added; A.R., at pp. 157-58.]

[16] Before repeating her instructions on reasonable doubt, the trial judge told the jury:

We have your question and we have considered it.

Let me start off by again -- let me just go through what I previously told you. Now, just listen carefully to what I’ve said. [A.R., at p. 158]

The trial judge then repeated her original reasonable doubt instruction almost verbatim.

[17] After repeating her reasonable doubt instructions, the trial judge said to the jury:

My obligation is to provide you with direction on reasonable doubt, but not, strictly speaking, a definition. The words “reasonable doubt” defy precise interpretation. Every attempt to explain them leads to more confusion as opposed to clarity. So that I must accordingly leave you with the instruction the way as -- the way that I gave it to you and have just repeated it for you.

I hope that helps. And so essentially the reasonable doubt definition that I gave to you is as page 14, 15 and 16 of the charge, there is really very little I can add to clarify it because, as I said, it is, it is not, strictly speaking, a definition that I can give you that will help you. [Emphasis added; A.R., at p. 159.]

2. Analysis

[18] At the outset, it is important to stress that the original charge to the jury was unassailable. It was modelled on the Lifchus suggested charge and there can be no doubt that, in the absence of a question from the jury, there would have been no error by the trial judge. The problem which arose is solely related to the way in which the trial judge responded to the jury’s question.

[19] Her comments to counsel made clear that she did not want to create further confusion for the jury and stray into error in responding to the jury’s question. The trial judge was justifiably cautious in her reluctance to depart from the adequate charge she had already given.

[20] However, as explained by Cory J. in R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, the implication of a question from the jury is that, on the issue raised in the question, there is confusion. Assistance must be provided. At p. 528, Cory J. stated:

A question presented by a jury gives the clearest possible indication of the particular problem that the jury is confronting and upon which it seeks further instructions. Even if the question relates to a matter that has been carefully reviewed in the main charge, it still must be answered in a complete and careful manner.

And at p. 530:

With the question the jury has identified the issues upon which it requires direction. It is this issue upon which the jury has focused. No matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive. No less will suffice. The jury has said in effect, on this issue there is confusion, please help us. That help must be provided.

[21] In R. v. D.P., 2002 ABCA 285, 317 A.R. 375, the trial judge charged the jury based on Cory J.’s suggested charge in Lifchus. The defence counsel asked that the charge be refined with the benefit of this Court’s statements in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. The trial judge refused. When the jury came back with a request for a definition of “proof beyond a reasonable doubt”, the defence repeated its request. The trial judge again refused and simply repeated his original charge. The Alberta Court of Appeal held that “the jury’s question made it apparent that further definition about the concept of reasonable doubt was required. The judge’s responsibility at that point was to assist the jury in achieving a better understanding of that concept” (para. 8). It quashed the conviction, concluding that the jury received no meaningful assistance and was therefore likely under a misapprehension about the meaning of reasonable doubt.

[22] In R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628 (C.A.), the jury asked to rehear the evidence of the complainant. The trial judge responded that they could, but then underlined how long the testimony was and suggested they would be required to stay at the courthouse over night. He sent the jury back to reconsider its request with this information. The jury returned with a guilty verdict. Labrosse J.A. concluded for a five-member panel of the Ontario Court of Appeal, at p. 645, that:

The words of the trial judge may well have discouraged the jury from rehearing and resolving whatever aspect of the complainant’s evidence it found troubling. In my view, the trial judge should have ensured that the jury’s concerns were met and that it received the assistance it required. In effect, the jury received no assistance from the trial judge with respect to its request.

In a case which turned on the respective credibility of the complainant and the accused, the trial judge’s error was fatal and the conviction cannot stand.

[23] Here, the trial judge essentially repeated her original charge verbatim. In some cases, repeating the original charge verbatim might be all that is required to assist the jury. For example, where the original charge was not provided to the jury in writing and the jury indicates in its question that it has forgotten the original charge, repeating the instruction may be all that is necessary. For instance, in R. v. Desveaux (1986), 1986 CanLII 153 (ON CA), 26 C.C.C. (3d) 88 (Ont. C.A.), the jury asked for “a repetition of the difference between first degree murder, second degree murder and manslaughter”. In R. v. M. (M.C.) (2003), 2003 CanLII 23732 (ON CA), 176 C.C.C. (3d) 263 (Ont. C.A.), the jury asked the trial judge to “review the definition of reasonable doubt” (para. 27). Cronk J.A. stated that the correct instructions from the main charge on this issue “were probably not fresh in the minds of the jurors at the time of the recharge” (para. 45). In such cases, repeating the original instruction is an appropriate response.

[24] However, in this case, the jury had the original charge in writing. Deliberations had gone on for a full day and the jury’s question not only uses terms included in the original charge but also cites a specific page of that charge. There can be little doubt that there was some confusion on the part of one or more of the members of the jury about the standard of proof to be met by the Crown in order to secure a guilty verdict and there can be little doubt that the jury had reread the charge.

[25] As the respondent’s counsel, Mr. Walsh, pointed out in argument, there are different ways of expressing the same idea. While the meaning of the original charge is understandable to lawyers and judges, it may not be to lay members on a jury. Cory J. recognized this in Lifchus when he wrote, at para. 40, that the suggested charge was not a “magic incantation”. Explaining the idea the jury has asked to have clarified in different words may be what is necessary for the jury to understand.

[26] Here, counsel agreed that the question asked by the jury seemed to suggest that there was confusion about the concept of balance of probabilities. The charge had addressed proof on a balance of probabilities on the one hand and absolute certainty on the other. The charge explained that a guilty verdict could not be based on probable or likely guilt and that proof of absolute certainty is impossibly high. It correctly described proof beyond a reasonable doubt as being much closer to absolute certainty than to proof on a balance of probabilities: see Starr, at para. 242. However, the jury was still having difficulty with these concepts.

[27] At paras. 26-27, Hamilton J.A. suggested that the concepts of balance of probabilities and absolute certainty could have been explained this way:

The judge might have simply advised the jury that the reference to balance of probabilities means the same as “probably or likely guilty” and “probable guilt”, being phrases used elsewhere in her reasonable doubt instructions.

I can understand why counsel and the trial judge found it difficult to explain “absolute certainty”. Nonetheless, a response was required. The trial judge might have explained that to know something with absolute certainty is to know something beyond the possibility of any doubt whatsoever. She could have then reminded the jury that such a standard is impossibly high and is not required by law.

[28] The concept of balance of probabilities could also have been explained with reference to the civil standard of proof. R. D. Wilson, N. J. Garson and C. E. Hinkson’s Civil Jury Instructions (2nd ed. (loose-leaf)), at § 4.7.4, provides the following sample instruction for explaining balance of probabilities to a civil jury:

4. What does “proof on a balance of probabilities” mean? It does not mean proof beyond a reasonable doubt — that standard of proof applies only in criminal trials. In civil trials, such as this one, the party who has the burden of proof on an issue must convince you that what he or she asserts is more probable than not — that the balance is tipped in his or her favour. You must examine the evidence and determine whether the party who has the burden of proof on an issue is relying on evidence that is more convincing than the evidence relied on by the other side. In short, you must decide whether the existence of the contested fact is more probable than not.

[29] While the trial judge was understandably reticent to stray from the Lifchus framework, these appear to be acceptable clarifications in response to the jury’s question. Even though it would have been preferable for the judge to provide clarifications to the jury, if she chose not to provide any, it was imperative to leave the door open for the jury to come back with further, more precise, questions should it remain unclear on the concept of reasonable doubt.

[30] The error in this case arose with how the judge ended her recharge. There were two problems with what she said after repeating her reasonable doubt instruction. The first was the judge’s statement that every attempt to explain the words “reasonable doubt” leads to more confusion as opposed to clarity. The second was that the judge said that there was very little that she could add to clarify reasonable doubt.

[31] Essentially, these comments imply that even though the jury appeared to have been confused, the judge could not assist them. The jury was sent back to deliberate without anything more to help them understand the concepts of balance of probabilities, absolute certainty and reasonable doubt. Exacerbating the problem was that the judge said there was “very little [she could] add to clarify”, thereby implying that there was no reason for the jury to return with another question or to try to clarify more precisely what was causing the confusion.

[32] A verbatim reiteration of the initial charge would not have been fatal had the judge made it absolutely clear to the jury that it was welcome to return with further questions if jury members were still confused. But the jury was discouraged from doing so by the words the trial judge used.

[33] The result is that the trial judge failed to provide a responsive answer to the jury’s question and her final comments discouraged further questions on the standard of proof. This raises a concern that the verdict may not have been based on a proper understanding of the standard of proof and that there was therefore a miscarriage of justice.

[34] In dissent, Monnin J.A. cited authority for the proposition that there exists in a jury an “extrinsic common sense” that must not be understated. I agree. However, in my respectful opinion the common sense of the jury pertains to its determination of the guilt or innocence of the accused only after it understands the relevant law and specifically the criminal standard of proof. In R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, Dickson C.J. wrote, at p. 692:

The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. [Emphasis added.]

[35] It cannot be assumed that the jury’s common sense can be relied upon when it comes to legal concepts such as the standard of proof. As explained by Cory J. in Lifchus, at para. 22:

The phrase “beyond a reasonable doubt”, is composed of words which are commonly used in everyday speech. Yet, these words have a specific meaning in the legal context. This special meaning of the words “reasonable doubt” may not correspond precisely to the meaning ordinarily attributed to them. . . . An explanation of the meaning of proof beyond a reasonable doubt is an essential element of the instructions that must be given to a jury. That a definition is necessary can be readily deduced from the frequency with which juries ask for guidance with regard to its meaning.

[36] Monnin J.A. was concerned that, because the definition of reasonable doubt is complex, any further definition would have led the trial judge into error and confused the jury. His concern is valid. However, that concern does not alleviate the need to provide a careful and responsive answer to the jury’s question.

[37] Monnin J.A. was also of the view that it was open to the jury to return if a need for further clarification arose. The fact that the jury did not do so indicated to him that the answer which they received was sufficient for them to reach a verdict. For the reasons I have given, I am of the respectful opinion that the trial judge discouraged the

jury from returning for further clarification. I cannot infer from the fact that the jury did not ask further questions that their confusion was clarified.

[38] For these reasons I would dismiss this appeal.

The reasons of McLachlin C.J. and Cromwell J. were delivered by

Cromwell J. (dissenting) —

I. Introduction

[39] There is no dispute that the trial judge’s instructions to the jury, including her answer to their question, correctly set out the relevant legal principles. What is disputed, however, is whether, as the majority of the Court of Appeal found, the trial judge erred in law when she answered the jury’s question by repeating the instructions she gave during the main charge. In the majority’s view, it was reasonably likely that, as a result of the judge’s failure to elaborate on her original charge, the jury was left under a misapprehension about the meaning of reasonable doubt (2008 MBCA 118, 231 Man. R. (2d) 143, at para. 31). I respectfully disagree with this conclusion.

II. Appellate Review of the Jury Charge

[40] In my respectful view, the majority of the Court of Appeal erred by failing to take a functional and practical approach to its review of the trial judge’s charge and recharge. When examining a trial judge’s instructions to a jury, the reviewing court must focus on “the general sense which the words used have likely conveyed to the jury . . . . The standard that a trial judge’s instructions are to be held to is not perfection. The accused is entitled to a properly instructed jury, not a perfectly instructed jury . . . . It is the overall effect of the charge that matters”: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 31. The reviewing court must not be distracted from the key question on appeal. That question is not whether the judge’s directions could have been better. In this case, the question is whether the charge and recharge, taken as a whole, give rise to a reasonable likelihood that the jury did not understand the legal requirement that the Crown must prove guilt beyond a reasonable doubt: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 41.

[41] Of course, questions from the jury must be answered fully and properly to the extent possible: see, for example, R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at pp. 528-31. But the focus on appeal remains on whether the jury was left with an erroneous view of the law. In S. (W.D.), the majority of this Court found that the recharge in that case contained a legal error and that its effects were not cured by the correct instructions previously given during the main charge. It is important to remember, however, that the case turned on legally erroneous instructions, not on the trial judge’s failure to be as helpful as possible.

III. Analysis

[42] The issue in this case is not whether the judge misstated any legal principle. She did not. The issue boils down to whether, as the Court of Appeal held, there is a reasonable likelihood that, given the jury’s question, one should conclude that the judge’s instructions, while legally correct, nonetheless failed to communicate adequately to the jury the legal meaning of proof beyond reasonable doubt.

[43] I part company with the reasons of the majority in the Court of Appeal on three points. In my respectful view, they read too much into the jury’s question, they unduly focus on whether the jury understood proof on “balance of probabilities” rather than proof beyond a reasonable doubt and they wrongly fault the judge for discouraging the jury from posing further questions on this point.

1. The Jury’s Question and the Jury’s Problem

[44] For ease of reference, the jury’s question was: “Jury requests clarification on reasonable doubt section of charge to the jury. Particularly difference between absolute certainty and balance of probabilities. Page 15.” The Court of Appeal’s main concern was that this question showed that the jury “was struggling with the concept of reasonable doubt” (para. 29).

[45] Respectfully, this is reading too much into the jury’s question. Both the question itself and the positions of counsel at trial convince me that the jury’s problem was with the term “balance of probabilities”. I agree with the Court of Appeal that the judge’s answer to the jury’s question would not have assisted their understanding of this term. However, I conclude that there is no reason to think, on the basis of this question, that the jury failed to understand the requirement of proof beyond reasonable doubt.

[46] Consider first what the jury actually asked. They did not ask for assistance on the meaning of reasonable doubt. They asked for assistance with the reasonable doubt section of the charge. The question refers to p. 15 of the written instructions which the judge had provided to the jury. The text of the charge on that page deals mostly with placing reasonable doubt between proof on a balance of probabilities on the one hand, and proof to an absolute certainty on the other. The jury’s question refers “particularly” to the difference between absolute certainty and reasonable doubt. I conclude that the jury wanted clarification of the difference between proof on the balance of probabilities and proof to the level of absolute certainty.

[47] This was the impression of counsel and the judge at trial, as revealed by their discussion of the question. In my view, their inference to this effect is a fair one. Even the majority judgment in the Court of Appeal acknowledged this at one point in its reasons, stating at para. 25 that “[i]t was clear the jury needed assistance about the difference between ‘absolute certainty’ and ‘balance of probabilities’.” This, respectfully, is quite a different problem from the one which preoccupied the Court of Appeal that the “jury was struggling with the concept of reasonable doubt” (para. 29).

[48] There is little basis for concluding that the jury did not understand the term “absolute certainty”. Their question focussed on the difference between this concept, which seems quite straightforward, and the less familiar, legal concept of the balance of probabilities (A.R., at pp. 149-56).

[49] The jury’s question, in my view, as well as in the view of the trial counsel and the trial judge, likely reflected its lack of clarity about what the “balance of probabilities” means, not that they were “struggling with the concept of reasonable doubt”. The issue on appeal, however, is not whether the jury understood what the “balance of probabilities” means, but whether, on reviewing the charge as a whole, there is any reasonable likelihood that the jury did not understand what was meant by reasonable doubt.

[50] It was not essential for the jury to understand the balance of probabilities in order to apply the reasonable doubt standard properly. Instructions comparing and contrasting reasonable doubt with the balance of probabilities and absolute certainty were mandated by this Court in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. It is worth remembering why. The purpose was to make it clear to the jury that the Crown is required to do more than prove the accused’s guilt on a balance of probabilities and that proof beyond reasonable doubt is closer to absolute certainty. As Iacobucci J. put it at para. 242:

. . . an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible.

[51] As mentioned, the jury’s question did not reflect any difficulty with the every-day concept of absolute certainty. The focus of concern, therefore, is whether the jury misunderstood the term “balance of probabilities”. Specifically, the question is whether there is any reasonable likelihood that they failed to appreciate the point that this part of the charge was intended by the Court in Starr to explain: that proof beyond reasonable doubt requires that the Crown persuade the jury of more than that the accused is probably guilty. Respectfully, in my view, there is no such reasonable likelihood.

[52] In both the main charge and the recharge, the jury was told:

It is not enough for you to believe that [the respondent] is probably or likely guilty. In those circumstances, you must find him not guilty because Crown counsel would have failed to satisfy you of his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. [Emphasis added; A.R., at p. 115.]

There is, in my view, no reason to think that the jury did not understand the expressions “probably or likely guilty” or “probable or likely guilt”. In fact, the majority of the Court of Appeal shared this view. It suggested that a proper answer to the jury’s question could have simply advised the jury that the reference to “balance of probabilities” in the charge means the same as “probably or likely guilty” or “probable guilt”. This proposed answer would only have been helpful if the jury understood the concepts of probably or likely guilty or probable guilt, which, of course, had already been used in the judge’s instructions. The Court of Appeal’s proposed additional instructions therefore assume that the jury understood the terms “probably” or “likely guilty” and “probable guilt”.

[53] Respectfully, this proposed answer shows that the majority of the Court of Appeal lost sight of the critical question on appeal. It was not necessary for the jury to understand what “balance of probabilities” means. What was critical, as underlined in Starr, was that they understand the concept that proof beyond reasonable doubt requires more than proof of probable or likely guilt. The Court of Appeal took it as a given that these terms were understood by the jury; otherwise, there would have been no point in using them, as the Court of Appeal suggested the trial judge should have done, to explain the term “balance of probabilities”.

[54] I conclude that, in the context of this charge and recharge, there is no reasonable likelihood that the judge’s failure to explain the term “balance of probabilities” had any impact on the jury’s understanding of the critical point that proof beyond reasonable doubt requires more than proof that the accused was probably or likely guilty. Similarly, I cannot conclude that the judge’s failure to link those terms to the expression “proof on a balance of probabilities”, as the Court of Appeal suggested she could have done, gives rise to any likelihood that the jury misunderstood this critical point.

2. The Focus Should Be on Reasonable Doubt

[55] My second difficulty with the Court of Appeal’s approach is related to the first. In my view, the Court of Appeal erred by focussing on the judge’s failure to explain the “balance of probabilities” and “absolute certainty” rather than on whether the instructions, read as a whole, left the jury with a misunderstanding of what the law means by “reasonable doubt”.

[56] As I have noted, the comparison of reasonable doubt with the other two standards was mandated by this Court as an additional alternative way of explaining reasonable doubt. Contrasting reasonable doubt with proof on the balance of probabilities and proof to an absolute certainty should help the jury because these standards, the Court thought, were “fairly and easily comprehensible”. This instruction was not added to open up new opportunities to dissect jury instructions on peripheral points.

[57] This jury was correctly told that reasonable doubt is not a frivolous or far-fetched doubt or a doubt based on sympathy or prejudice. They were told that it was a doubt about an essential element of the offence based on reason and common sense that logically arises from the evidence or lack of evidence or absence of reliable evidence. They were told that they should convict only if they were sure the accused was guilty. These were correct and readily understandable instructions about reasonable doubt. It appears that the instructions which placed reasonable doubt on a spectrum of degrees of certainty may not have assisted this jury. This should not, however, lead to the conclusion that they also failed to grasp the other explanations of the term included in the charge and recharge. This is particularly so in this case where, as the Court of Appeal assumed, there was no question that the jury understood the very important point that proof beyond a reasonable doubt requires more than proof of probable or likely guilt.

3. The Judge’s Answer to the Jury’s Question

[58] I also part company with the Court of Appeal’s finding that the judge erred in her answer because she did not attempt a new explanation in different words of what “balance of probabilities” and “absolute certainty” mean. There are three brief points to be made.

[59] The first is that, while an answer to a jury’s question should be as complete and accurate as possible, the completeness and accuracy of the answer must be assessed in the context of the law concerning the particular question posed. The context here rightly gave rise to the concern that more harm than good was likely to come of a quickly cobbled-together attempt to improve on the carefully crafted instructions already given.

[60] The legal landscape around this jury’s question is important to bear in mind. Hundreds of criminal jury trials have had to be redone because of errors in the judge’s charge on reasonable doubt. The courts in Canada struggled for years with how reasonable doubt should be explained to a jury. The judicial history of R. v. Brydon (1995), 1995 CanLII 6267 (BC CA), 37 C.R. (4th) 1 (B.C.C.A.), rev’d 1995 CanLII 48 (SCC), [1995] 4 S.C.R. 253, and the line of cases in this Court following Lifchus give the flavour of these difficulties. Charges that had been widely used for years were found to contain reversible errors. The case law has developed a long list of “do’s” and “don’ts”, each of which may constitute reversible error. By way of illustration, the judgments of this Court teach that trial judges must not define reasonable doubt as an ordinary concept or equate it to a moral certainty or qualify the word “doubt” with anything other than the word “reasonable” or use specific examples that may cause the jury to ascribe an everyday meaning as opposed to a legal one to the term: see Lifchus; Starr; R. v. Bisson, 1998 CanLII 810 (SCC), [1998] 1 S.C.R. 306. The complexity of the area is underscored by the fact that, in this Court, a rehearing was held in Lifchus which resulted in changes in the instruction proposed in the reasons released initially: see footnote at p. 320. The legal landscape in this area resembles a battlefield on which many verdicts have been casualties. The possibility of reversible error in this part of the jury charge is great.

[61] This was well understood by the trial judge. Of course, the complexity or subtlety of the law does not justify a trial judge’s simply repeating to the jury what is found in the precedents and model charges when faced with the jury’s clear need for additional explanation. Model charges, no matter how carefully prepared, are merely suggestions which must be tailored to meet the needs of particular cases and particular juries. However, a court reviewing a judge’s answer to the jury’s question should take a practical view of the risks and benefits of the trial judge’s doing what it is asserted, after the fact, the trial judge ought to have done. In this case, my view is that the judge’s reluctance to depart on this subject from the well-established language approved by the voluminous case law was entirely justified: not only were the risks of attempting some further explanation significant, but also the potential for its appreciably helping the jury was meagre.

[62] The reality of this point is underlined by the suggestions made by counsel at trial as to how the judge should respond to the jury’s question. Both counsel agreed that the judge should not start from scratch. Crown counsel, with apparent approval of the defence, suggested that what was needed was a re-reading of the main charge “with inflection” (A.R., at p. 155). Both counsel thought the difficulty was with the term “balance of probabilities”, but they had little in the way of suggestions as to how to explain it.

[63] The point is also made clear by the meagre improvements to the judge’s charge proposed by the Court of Appeal. For the Court of Appeal, simply linking “balance of probabilities” to “probable or likely guilt” and saying that “absolute certainty” means to know something beyond the possibility of any doubt would have been adequate (paras. 26-27). My difficulty with this is that, realistically assessed, these additions would have contributed very modestly, if at all, to the jury’s understanding of the critical concept of reasonable doubt. Requiring the trial judge to attempt to achieve these negligible improvements while under the very real and immediate pressure of responding to a jury’s question opens up a very considerable risk of error in exchange for no real benefit.

4. The Trial Judge’s Answer to the Jury’s Question Reflected the State of the Law

[64] I do not share the Court of Appeal’s concern that, as a result of the judge’s answer to the jury’s question, they would have been “at least discouraged, if not dissuaded” from asking further questions (para. 24). While I agree with the principle that the judge should not discourage jury questions on points of difficulty, my view is that, on this topic, the judge’s instructions were realistic.

[65] This point is reinforced by the difficulty trial counsel had in making any significant suggestions as to what the answer should contain and by the very modest suggestions made by the Court of Appeal. The judge said that she had to leave the jury with the instruction as she had repeated it because reasonable doubt defies precise interpretation, attempts to explain it further lead to more confusion than clarity and there was very little that she could add. In the context of the full and perfectly accurate instructions which she gave and repeated on reasonable doubt, my view is the judge’s statements to the jury accurately reflected the state of the law. The trial judge’s job in giving legal instructions to the jury is to help them to understand the law accurately, not to push its boundaries.

[66] It is also my view that the Court of Appeal’s analysis overlooks one important aspect of the judge’s answer to the question. The judge did not simply repeat the reasonable doubt instructions she had previously given. Her answer added a section that, in my view, correctly helped to refocus the jury on reasonable doubt. The judge told the jury that her obligation was to provide a direction on reasonable doubt and directed their attention to that concept in the instructions. This, in itself, was a useful response to the jury’s question; it reminded them of what was critical to their deliberations.

5. Conclusion

[67] In my respectful view, the legally correct instructions given by the trial judge in both her charge and her response to the jury’s question do not give rise to any reasonable likelihood that the jury misunderstood the meaning of proof beyond reasonable doubt.

V. Disposition

[68] I would allow the appeal and restore the conviction entered by the jury.

Appeal dismissed, McLachlin C.J. and Cromwell J. dissenting.

Solicitor for the appellant: Attorney General of Manitoba, Winnipeg.

Solicitors for the respondent: Walsh & Company, Winnipeg.