R. v. Bisson

Cory J. -- On this appeal, consideration must be given to the problems which arise when examples are given to illustrate the phrase “beyond a reasonable doubt”.

Factual Background

As a result of the proposed disposition very little will be said about the factual background. The appellant was charged with and convicted of first degree murder. The sole issue is whether the directions with regard to reasonable doubt were such that a new trial must be directed.

Directions Given in This Case

At the outset it is important to remember that the directions in this case and the consideration of them by the Court of Appeal took place before the release of the decision of this Court in R. v. Lifchus, [1997] 3 S.C.R. 320. The trial judge instructed the jury that although the phrase “beyond a reasonable doubt” can cause considerable debate and confusion, it was really a very simple concept. He stated that, while total, absolute, perfect certainty does not exist, certainty beyond a reasonable doubt is that which is closest to this ideal. He described it as a real doubt, an honest doubt held by a reasonable person. He then explained, however, that a reasonable doubt is a or that degree of certainty which one uses every day in important activities. He put it in this way:

[translation] What is reasonable doubt? I will not hide from you the fact that it is a legal concept which has provoked much debate, which has engendered much discussion, both on the part of counsel and on the part of judges, and which is the source of confusion that is sometimes quite unnecessary. You will see that it is something very simple.

The expression reasonable doubt is in a sense a way of describing a degree of certainty. First, you should note, and obviously accept, the fact that total, absolute, perfect certainty that someone is guilty of something, does not exist. Just as in most situations in our everyday life, total, perfect, complete certainty does not exist, the closest that one can get to this ideal state of certainty is precisely certainty beyond a reasonable doubt.

What then is a reasonable doubt? A reasonable doubt is first and foremost a real doubt, that is not imagined, not capricious, not frivolous. It is a real doubt, an honest doubt entertained in the mind of a reasonable person. A reasonable doubt is therefore a doubt that is reasonable. It is nothing other than that. And it is a degree of certainty which you use every day, in your important activities, whether at work, at home or in your leisure activities. It is a degree of certainty which you employ, which you have used since you reached the age of reason, without perhaps having dissected it as we are doing at present.

Therefore, this concept of reasonable doubt is in fact an expression, or a manner, perhaps not always a good one, of expressing a degree of certainty, certainty beyond a reasonable doubt. I want to give you an example to show you that it is a degree of certainty which you use, which you employ, which you know, and which you are asked to use in determining the guilt of the accused. I am saying to you because others may read what I’m telling you, I’m giving you the example I have used for years. I will not change my example because I like it, it does the job, I will not change it.

You know that in North America, the automobile is something as essential as a refrigerator, as a telephone, because we live in a country which is very large. [Emphasis added.]

He then gave an example. It was replete with details and related with loving care the steps which should be taken in order to determine the level of oil in an automobile. He suggested that when the proper checks had been done, a person could feel certain “beyond a reasonable doubt” that there was enough oil in the car to enable it to run without damage. This example was given to illustrate the degree of certainty required by the phrase “beyond a reasonable doubt”.

The trial judge went on to observe that there are many situations such as this which occur in daily life when a person reaches this requisite degree of certainty beyond a reasonable doubt about the existence of something. He stated that what is asked in the trial is that one apply just the same degree of certainty beyond a reasonable doubt in determining the guilt of the accused. He summed up his observations in this manner:

[translation] So, when you make all the checks which a car owner normally makes, when you observe what is happening on your instrument panel when the motor is turning, I would suggest to you that you have in your mind a certainty beyond a reasonable doubt that there is in your automobile engine a sufficient level of oil so that it can turn without causing damage.

There are many more examples of situations, of important activities in your existence where you do in fact reach this degree of certainty beyond a reasonable doubt of the existence of something. What you are being asked here, in this trial, or in any other trial, is precisely to apply this same degree of certainty beyond a reasonable doubt to the determination of the accused’s guilt.

It is true, it may perhaps seem unnecessary to spell it out for you, but it is true that one cannot make comparisons between certainty beyond a reasonable doubt that someone is guilty of something and certainty beyond a reasonable doubt that there is a sufficient level of oil in an automobile engine. There is no comparison because the things are different. You can’t compare oranges with pumpkins.

However, even if the things are different, the degree of certainty that is required before concluding that someone is guilty of something, is exactly the same degree of certainty, certainty beyond a reasonable doubt, as the degree of certainty you use in important activities in you life. Reasonable doubt is no more than that, it is no less than that. [Emphasis added.]

Court of Appeal, [1997] R.J.Q. 286

The majority of the Court of Appeal (per Gendreau and Baudouin JJ.A.) was of the opinion that the example given with regard to reasonable doubt did not warrant intervention by the Court of Appeal. Fish J.A. dissenting, concluded that the trial judge misdirected the jury on the significance of the term “beyond a reasonable doubt” by comparing it to a degree of certainty used to make decisions in everyday, ordinary affairs. In his view, the misdirection on this issue was fatal to the jury’s verdict.

Analysis

Examples: The Problems They May Create

No matter how carefully they may be crafted, examples of what may constitute proof beyond a reasonable doubt can give rise to difficulties. First, they may tend to indicate to a juror that the decision as to whether guilt has been proven beyond a reasonable doubt can be made on the same basis as would any decision made in the course of their daily routines. The same danger exists even if these are important decisions. So often those “everyday” decisions in life are reached by utilizing a standard of probability. They are based upon experience and a consideration of routine risks and commonplace alternatives. To suggest that jurors may apply examples from everyday life in determining proof beyond a reasonable doubt can be misleading and may well lower the requisite standard. Secondly, examples tend to be applied subjectively. The consideration of an example will often vary with the life experiences and background of every individual juror. An example which may illustrate for one juror a decision of monumental importance may for another be something that is routine or even mundane.

The example used in this case does seem to suggest to jurors that they can apply the same standard they would use in everyday, routine decisions to the determination of guilt beyond a reasonable doubt. To many jurors, ascertaining the level of oil in their car may have been one of the most commonplace and mundane decisions in their everyday life. These jurors, like so many others, may well have accepted the oil level as satisfactory simply on the basis that there was no red light showing on the instrument panel. The underlined portions of the directions serve to confirm that the jury was encouraged to apply an everyday standard.

Perhaps it would help to repeat portions of the reasons in Lifchus which are appropriate to this decision. At paras. 23‑24, the following appears:

Perhaps a consideration of how to define the expression can begin by setting out common definitions which should be avoided. For example, a reasonable doubt should not be described as an “ordinary” concept. Jurors should not be invited to apply to the determination of guilt in a criminal trial the same standard of proof that they would apply to the decisions they are required to make in their everyday lives, or even to the most important of these decisions. In this aspect, I agree with the comments of Scott C.J.M. set out in the judgment below (at pp. 234‑35):

Reasonable doubt, no matter how elusive the concept, cannot be equated to an ordinary everyday phrase. It is not, as we have seen, a “perfectly ordinary concept” ‑‑ far from it. The reason for this is that the word “reasonable” can, depending on the circumstances, have two very different meanings. The first is the meaning thoroughly canvassed by Wood J.A. in Brydon. The other more common use is that in ordinary parlance: we hold “reasonable” views, we have “reasonable” opinions, and we make “reasonable” prognostications. This is the standard by which we make our everyday decisions and by which we habitually govern ourselves. It is a standard of probability and, often within that, at the low end of the scale. It is very different from the criminal standard of proof which requires a much higher degree of certitude to arrive at a conclusion of guilt.

To instruct the jury that reasonable doubt means nothing more than the “everyday sense” of the words is misleading and constitutes reversible error. (Emphasis added.)

Ordinarily even the most important decisions of a lifetime are based upon carefully calculated risks. They are made on the assumption that certain events will in all likelihood take place or that certain facts are in all probability true. Yet to invite jurors to apply to a criminal trial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which the prosecution must be held.

The importance of jurors applying the appropriate standard of proof cannot be overemphasized. It is fundamental to a criminal trial. On this issue, the following appears in Lifchus (at paras. 27 and 41):

First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence. . . . If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law. Jurors must be reminded that the burden of proving beyond a reasonable doubt that the accused committed the crime rests with the prosecution throughout the trial and never shifts to the accused.

. . .

Further, it is possible that an error in the instructions as to the standard of proof may not constitute a reversible error. It was observed in R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 758, that the verdict ought not be disturbed “if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply”. On the other hand, if the charge as a whole gives rise to the reasonable likelihood that the jury misapprehended the standard of proof, then as a general rule the verdict will have to be set aside and a new trial directed.

Like Fish J.A., I am of the view that the directions given in this case do indeed give rise to a reasonable likelihood that the jury misapprehended the standard of proof. As a result the verdict must be set aside and a new trial directed.

Other Issues Raised

The appellant also challenged the directions of the trial judge as to consciousness of guilt and circumstantial evidence. It was also said that the conduct of the trial judge was sufficient in itself to warrant a new trial. On these issues, I am in substantial agreement with the reasons of the majority of the Court of Appeal. Whatever shortcoming there may have been with regard to these matters they would not merit a direction for a new trial.

Disposition

The appeal is allowed, the order of the Court of Appeal is set aside and a new trial is directed.