R. v. Brydon

Lamer C.J. -- This appeal was allowed and a new trial was ordered from the bench on October 11, 1995, with reasons to follow. These reasons are as follows.

This case comes to this Court as of right from the decision of a five-member panel of the British Columbia Court of Appeal ((1995), 37 C.R. (4th) 1) on the narrow point of law of whether portions of the trial judge's recharge to the jury on the meaning and application of reasonable doubt amounted to reversible error. In the court below, the appellant raised the additional issue of whether it is appropriate to define reasonable doubt in terms of "moral certainty". It appears that the original three-member panel of the British Columbia Court of Appeal decided to adjourn the proceedings and reconvene as a five-member panel. The court then invited counsel "to canvass fully the proper instruction to be given to a jury on the meaning of reasonable doubt" (p. 42).

At the outset I wish to state that we were not asked by either party to address the broader issues of how the concept of reasonable doubt should be defined to a jury and whether "moral certainty" language should be used in that definition. Therefore, our opinion should in no way be construed as either endorsing or rejecting the model jury charge on reasonable doubt advanced by a majority of the British Columbia Court of Appeal.

The appellant was convicted of five counts of sexual assault. The offences for which the appellant was convicted involved the touching or fondling of prepubescent school girls by the appellant, who was their teacher. The incidents occurred some years prior to the laying of the charges. The evidence pitted the allegations of the complainants against a denial of any wrongdoing by the appellant. Credibility was the key issue in the case, and with the exception of the similar fact evidence of two other students, there was little or no evidence to support either version of what happened.

The appellant appeals his conviction to this Court as of right on the basis of Wood J.A.'s dissent in the court below. That dissent was grounded upon the following questions of law:

(1) Did the trial judge's instruction to the jury that "[i]f you believe that the accused is probably guilty or likely guilty but still have a reasonable doubt, you must give the benefit of that doubt to the accused and return a verdict of not guilty" constitute reversible error when considered in relation to the charge as a whole?

(2) Did the trial judge's instruction to the jury that "after examining all of the evidence you may be left with a reasonable doubt as to whether the accused is guilty or not guilty" constitute reversible error when considered in relation to the charge as a whole?

(3) Did the trial judge's instruction to the jury that "if you are unanimous in that doubt you must give the benefit of that doubt to the accused" constitute reversible error when considered in relation to the charge as a whole?

(4) If the learned trial judge erred in his instruction to the jury on the application or definition of reasonable doubt, should the provisions of s. 686(1)(b)(iii) of the Criminal Code be applied?

At the oral hearing both parties agreed that the application of s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C-46 , does not arise out of Wood J.A.'s dissent. I agree with this interpretation of the parameters of the dissent since the majority opinion did not find it necessary to address the s. 686(1)(b)(iii) issue. I would further add that I have some reservations as to whether s. 686(1)(b)(iii) would ever be available to cure an erroneous instruction which may have misled a jury into improperly applying the burden of proof or reasonable doubt standard.

In summarizing the decisions below, I have only included the excerpts from the charge and recharge and Court of Appeal judgments relevant to the issues raised in this appeal.

The trial judge instructed the jury on the meaning and application of reasonable doubt in the following fashion:

As I told you at the outset, and you may be getting tired of hearing this, but I must emphasize it because it is so important and must not be forgotten - it is a fundamental principle of our law that every accused person is presumed innocent. That presumption continues, it continues now and it will continue until you are satisfied beyond a reasonable doubt of the guilt of the accused. That burden stays with the Crown throughout. It is not a responsibility of the accused to demonstrate or establish or prove his innocence. If the Crown fails to prove guilt beyond a reasonable doubt you must acquit the accused.

What does reasonable doubt mean? There is no simple answer except to say that the phrase perhaps defines itself. It is a doubt based upon reason as opposed to a doubt based upon imagination or speculation. Proof beyond a reasonable doubt may be described as being achieved when there is a moral certainty in your mind that the accused committed the offence. If, for example, you conclude that the accused probably committed the offence and no more then you have a reasonable doubt and it is your duty to return a verdict of not guilty.

You must assess the credibility of the witnesses that you heard in this trial. That is the central issue. In doing so, you should bring to bear upon the question of credibility your own life experience and common sense. You may believe all of the evidence of a witness, a portion of the evidence given by a witness, or none of the evidence given by a witness....

There are three things that I want to tell you that I would like you to keep in mind, keeping in mind that the accused has given evidence: Firstly, if you believe the accused, obviously you must acquit; secondly, if you do not believe the evidence of the accused but are left with a reasonable doubt by that evidence, you must acquit; finally, if you are not left in a reasonable doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

. . .

Finally, keep in mind that the accused cannot be convicted of any offence unless you are satisfied beyond a reasonable doubt that he is guilty as charged.

. . .

. . . I must remind you to keep in mind my directions to you about the issue of reasonable doubt. The choice is not one side or the other. You must be satisfied beyond a reasonable doubt that the incidents complained of in fact occurred....

I leave you with a reminder of the final issue you must face. If you have a reasonable doubt concerning the guilt of the accused you must give the benefit of that doubt to the accused and find him not guilty. You are not doing him any favour by doing so, you are merely doing your duty as cast upon you by law. On the other hand, if you do not have a reasonable doubt concerning the guilt of the accused you must find him guilty as charged, that too is your plain duty and the law requires no more from you than that.

The jury was then sent out to deliberate. After 11 minutes, a note was sent to the judge requesting further instructions. The note said:

At the beginning of Judge's summation define reasonable doubt, define moral certainty, guidelines mentioned at beginning of summation.

In response, the judge gave this recharge which I quote in its entirety:

If I may deal with your last point first, guidelines at the beginning of my summation. I suggested to you and I suggest to you now that you decide this case on the evidence in this courtroom and on nothing else. We have separate functions: The facts are for you and the law is for me. It is your duty to weigh the evidence and come to your own on conclusions about what you believe and what you do not believe.

It is a fundamental principle of our law that every accused person is presumed to be innocent, that presumption continues until there is put before you a body of evidence which satisfies you beyond a reasonable doubt of the accused's guilt. That burden stays with the Crown throughout this trial and does not shift. It is not the responsibility of the accused to establish or demonstrate or prove his innocence. If the Crown fails to prove guilt beyond a reasonable doubt you must acquit the accused.

You asked me to define reasonable doubt and moral certainty. You may find that I am of less assistance to you in that regard. What I had said to you was this: That there is no simple answer to the question of what is a reasonable doubt except to say that it is a phrase that defines itself because it is a doubt based upon reason, as opposed to a doubt based upon imagination or speculation.

I can expand on it in this fashion in the hopes that it is of some assistance to you. A reasonable doubt may arise from the evidence, a conflict in the evidence or a lack of evidence. A reasonable doubt is a doubt based upon reason. It is not an imaginary doubt. It is sometimes put in this fashion in an effort to convey what is meant, it is sometimes described to juries in this fashion. If you are morally certain or feel sure that the accused committed the offences, you do not have a reasonable doubt. If you believe that the accused is probably guilty or likely guilty but still have a reasonable doubt, you must give the benefit of that doubt to the accused and return a verdict of not guilty. On the other hand, you must not set up a standard of absolute certainty that the Crown must meet in order to prove guilt. You must be satisfied beyond a reasonable doubt as to the guilt of the accused.

I add this comment, you may have trouble deciding which witnesses you believe and which witnesses you do not believe. You should know that the rule of reasonable doubt also applies to the issue of credibility. You need not definitely decide on the credibility of a witness or group of witnesses. You need not fully believe or disbelieve one witness or a number of witnesses.

After examining all of the evidence you may be left with a reasonable doubt as to whether the accused is guilty or not guilty. If you are unanimous in that doubt you must give the benefit of that doubt to the accused. [Emphasis added.]

The Chief Justice was satisfied that the recharge did not rise to the level of reversible error. He considered the two passages which were alleged to have been in error:

If you believe that the accused is probably guilty or likely guilty but still have a reasonable doubt, you must give the benefit of that doubt to the accused and return a verdict of not guilty. [Emphasis added.] and;

After examining all of the evidence you may be left with a reasonable doubt as to whether the accused is guilty or not guilty. If you are unanimous in that doubt you must give the benefit of that doubt to the accused. [Emphasis added.]

The Chief Justice did not think that the first passage, when read in context of the whole charge, could have misled the jury into applying the wrong standard of proof. He was also satisfied that the second passage was not in error. While he found the words "or not guilty" to be unnecessary, he was of the view that they were not inaccurate because the jury may well have had a doubt about either alternative. The second sentence in the second impugned passage caused him greater difficulty. It contained a clear mistake, undoubtedly a judicial slip of the tongue, since this experienced trial judge knew there was no need for the jury to be unanimous in whatever doubt it entertained. However, he found it significant that the trial judge told the jury on several occasions that the benefit of the doubt must be given to the appellant and that at no time was the jury told it could only acquit if it was unanimous. Moreover, in several passages, the trial judge properly instructed them on the proper standard of proof. The Chief Justice was also of the view that this particular instruction was still generally favourable to the appellant because it reminded the jury that the appellant was entitled to the benefit of the doubt. Therefore, McEachern C.J.B.C. concluded that the jury would not have been misled by this unfortunate instruction. He found it probable that the jury, rather than parsing the sentence, would have regarded the sentence as a reminder that the benefit of the doubt always went to the appellant.

Upon reading the charge as a whole, Gibbs J.A. concluded that, with one possible exception, the appeal could not succeed. The exception arose from three words ("or not guilty") in the last paragraph of the recharge:

After examining all of the evidence you may be left with a reasonable doubt as to whether the accused is guilty or not guilty. If you are unanimous in that doubt you must give the benefit of that doubt to the accused. [Emphasis added.]

Gibbs J.A. noted that there was no doubt that a direction that a jury could rest its verdict upon a finding of reasonable doubt that the accused was not guilty was wrong. He concluded that this error fell into the category of slips of the tongue which would not have misled the jury. According to his Lordship, the charge began with an accurate explanation that a person was presumed innocent until proven guilty beyond a reasonable doubt and that an accused person was not called upon to prove innocence and ended with a reminder that the Crown must prove all elements of the offence beyond a reasonable doubt. Gibbs J.A. was also of the opinion that the request from the jury that led to the recharge was not a question about the burden of proof or the presumption of innocence but rather a request for further explanation of the concepts of reasonable doubt and moral certainty. Consequently, he was not persuaded, looking at the charge as a whole, that the jury would have been likely misled by the unfortunate misstatement. He was satisfied it was simply a slip of the judicial tongue.

Wood J.A. found that there was reversible error in the emphasized portions of the last paragraph of the recharge:

After examining all of the evidence you may be left with a reasonable doubt as to whether the accused is guilty or not guilty. If you are unanimous in that doubt you must give the benefit of that doubt to the accused. [Emphasis added.]

His Lordship was of the opinion that the application of a reasonable doubt analysis to the innocence of the accused detracted from the principle of fundamental justice that mandated the presumption of innocence as the starting point for any inquiry into guilt. Moreover, he stated that it was the verdict, not the reasonable doubt, upon which the jury must be unanimous. He found that to require a jury to agree unanimously on the basis for concluding that a reasonable doubt as to guilt existed not only was wrong as a matter of law, but also had the effect of imposing a persuasive burden on the accused. Since these two errors fell in the final instructions to the jury, they were fatal to the verdicts.

Wood J.A. also found reversible error in that part of the recharge which instructed the jury that "if you believe that the accused is probably guilty or likely guilty but still have a reasonable doubt" (emphasis added). In his opinion (at p. 18):

This instruction reinforces the potential for confusion arising from the other errors already referred to, and enhances the likelihood that the jury was induced to apply the wrong standard of proof in this case. In this respect I agree with the brief reasons found in the Ontario Court of Appeal endorsement in the Ford case, in which a similar form of instruction was criticized in the following terms:

. . . [it] might imply that even though their thinking did not extend beyond a belief that the accused were probably guilty, nevertheless [the accused] could be found guilty.

This Court has on a number of occasions highlighted the importance of answering jury queries in a careful, complete and correct manner: see R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Naglik, [1993] 3 S.C.R. 122; R. v. Pétel, [1994] 1 S.C.R. 3; and R. v. S. (W.D.), [1994] 3 S.C.R. 521. In Naglik, I held, writing for the majority, at p. 139:

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

In this case the jury, after deliberating for 11 minutes, sent a note to the trial judge asking him to define again the concepts of reasonable doubt and moral certainty. The jury also asked the judge to repeat the guidelines he had given to them prior to his review of the evidence, guidelines which dealt with the presumption of innocence and the burden of proof. Consequently, I take it as being implicit in the jury's question that they were also seeking further guidance on how to apply the concept of reasonable doubt to the evidence.

(ii) When Will a Trial Judge's Instructions on the Burden of Proof Amount to

Reversible Error?

In light of the importance of the burden of proof and reasonable doubt filter to the integrity and reliability of a verdict and to the fairness of an accused's trial and giving due weight to the reality, highlighted by Wood J.A. (at p. 10), that:

. . . the application to the evidence of the law relating to the burden of proof in a criminal case can pose great difficulty, particularly for a jury of lay people who are confronted with that task for the first, and probably the only, time in their lives.

a trial judge's instructions must be careful, lucid and scrupulously sound.

In assessing whether a trial judge's recharge (or in some cases the main charge) on the burden of proof amounts to reversible error, a court must consider:

(i) whether the impugned instruction is inconsistent with what was said in the initial charge or is simply erroneous standing by itself; and,

(ii) whether, after placing the inconsistency or error in the context of the charge as a whole, there is a reasonable possibility that the jury might have been misled by those instructions into either applying a standard of proof less than proof beyond a reasonable doubt or improperly applying the burden of proof or reasonable doubt standard in arriving at their verdict.

I am of the opinion that there is a greater risk that the jury may be misled when the erroneous instructions are found in a recharge which was in response to a jury question concerning the burden of proof and/or reasonable doubt.

(iii) Did the Recharge in this Case Amount to Reversible Error?

The appellant complains about three portions of the trial judge's recharge to the jury on the meaning and application of reasonable doubt:

(a) "if you believe that the accused is probably guilty or likely guilty but still have a reasonable doubt, you must give the benefit of that doubt to the accused"

This passage in the recharge is consistent with the main charge wherein the jury was told, albeit more clearly:

If, for example, you conclude that the accused probably committed the offence and no more then you have a reasonable doubt and it is your duty to return a verdict of not guilty. [Emphasis added.]

While it would have been preferable for the trial judge to use the word "even" before the words "if you believe" and to use "therefore" or "thus" instead of "but" in his recharge, I agree with the majority of the British Columbia Court of Appeal that when read in the context of the whole charge, the passage could not have misled the jury into applying a standard of proof less than the required proof beyond a reasonable doubt.

I wish to add that in my opinion instructing a jury that proof beyond a reasonable doubt is not met if the jurors can only conclude that the accused is "probably" or "likely" guilty is quite a useful manner in which to convey the meaning of such an elusive concept.

I am of the view that this passage from the recharge, while technically correct, would have been confusing for the jury, even giving due consideration to Cory J.'s reflection in W. (D.), supra, at p. 761, that "[t]oday's jurors are intelligent and conscientious, anxious to perform their duties as jurors in the best possible manner". However, this in itself would not be sufficient to order a new trial.

I find this impugned passage to be much more troubling than the previous ones I have just dealt with. Instructing a jury that they must be unanimous in their doubt before they can acquit is clearly an error. It is inconsistent with this Court's decision in R. v. Thatcher, [1987] 1 S.C.R. 652, which held that while a jury's verdict had to be unanimous, jurors could arrive at that verdict by taking different routes. This instruction tainted all of the trial judge's earlier instructions on reasonable doubt.

It is my opinion that, coupled with the previous instruction, there is a reasonable possibility that the trial judge's erroneous instruction may have misled the jury into improperly applying the reasonable doubt standard in arriving at their verdict. Consequently, I would allow the appeal and order a new trial on all five counts of the indictment.