R. v. B. (F.F.)

R. v. B. (F.F.)
Collection
Supreme Court Judgments
Date
1993-02-25
Report
[1993] 1 SCR 697
Case number
22811
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Iacobucci, Frank
On appeal from
Nova Scotia
Subjects
Criminal law
Evidence
Notes
SCC Case Information: 22811
Decision Content
R. v. B. (F.F.), [1993] 1 S.C.R. 697
F.F.B. Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. B. (F.F.)
File No.: 22811.
1992: October 5; 1993: February 25.
Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier and Iacobucci JJ.
on appeal from the court of appeal for nova scotia
Evidence ‑‑ Admissibility ‑‑ Similar fact evidence ‑‑ Highly prejudicial evidence tending to show bad character likely to commit offence ‑‑ Sexual and physical abuse of minor ‑‑ Evidence by brothers of violence in home ‑‑ Whether evidence inadmissible as being oath‑helping evidence ‑‑ Whether evidence inadmissible because irrelevant to any issue other than the appellant's character or because prejudicial value outweighed probative value ‑‑ If admissible, whether jury should have been given special instructions about its permissible use.
Criminal law ‑‑ Curative provision allowing for verdict to stand notwithstanding error of law ‑‑ Charge to jury not indicating use to which evidence could be put ‑‑ Evidence highly prejudicial and tending to show bad character likely to commit offence ‑‑ Whether Criminal Code's curative provision should apply ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1) (b)(iii).
Appellant was alleged to have sexually assaulted his niece from when she was six to eight years old through to age sixteen. The complainant had been in his care as a child during the fifties and sixties and only left her parents' household in 1964 after being discovered in the act of intercourse with her. The alleged assaults were reported to the police in 1990 and appellant was charged with rape, assault and procuring an abortion.
During the course of the trial, the judge decided on a voir dire not to admit the evidence of the complainant's sister that she too had been sexually assaulted by the appellant, on the ground that it fell within the similar fact evidence rule and its prejudicial effect was not outweighed by its probative value. However, testimony of the complainant's brothers and sisters was admitted with respect to the violent control that the appellant exerted within the household. Appellant was convicted of rape and assault and was unsuccessful in his appeal to the Nova Scotia Court of Appeal. He had sought to have declared inadmissible those parts of her brothers' testimony relating to assaults by the appellant on the complainant's siblings. Given a dissenting opinion, an appeal as of right arose on this point.
At issue here was: (1) whether the evidence of the brothers was inadmissible on the ground that it was oath‑helping evidence; (2) whether this evidence was inadmissible because it was irrelevant to any issue other than the appellant's character or that its prejudicial value outweighed its probative value; (3) if the evidence was admissible, whether the trial judge should have given the jury special instructions about the use they could make of this testimony; and finally, (4) whether the appeal should be dismissed under s. 686(1) (b)(iii) of the Criminal Code on the ground that no substantial wrong or miscarriage of justice occurred.
Held (L'Heureux‑Dubé and Gonthier JJ. dissenting): The appeal should be allowed.
Per Sopinka and Iacobucci JJ.: The question of whether or not the evidence was inadmissible on the ground of being oath‑helping evidence was not discussed by the Court of Appeal and therefore was not a "question of law on which a judge of the court of appeal dissent[ed]." Consequently, the appellant could not raise this as an issue before this Court.
The rule against oath‑helping prohibits a party from presenting evidence solely for the purpose of bolstering a witness' credibility before that witness' credibility is attacked. This type of evidence tends to prove the truthfulness of the witness, rather than the truth of the witness' statements. The testimony at issue made no reference to the truthfulness or good character of the complainant, or of themselves. Their evidence was rather corroborative of an issue in the trial that was raised in the complainant's testimony ‑‑ the system of violent domination that the appellant used to control the members of the household. While the impugned testimony shored up the complainant's credibility by implication, it was not called solely or even primarily for that purpose. It was not, therefore, oath‑helping evidence.
Evidence which tends to show bad character or a criminal disposition on the part of the accused is admissible if (1) relevant to some other issue beyond disposition or character, and (2) the probative value outweighs the prejudicial effect. The impugned evidence tended to show that the appellant is a person of bad character, with a propensity for violence. It was, however, not tendered solely to show that the appellant was the sort of person likely to commit the offences charged. Rather, it was to rebut the defence of innocent association and demonstrate the system of violent control that the appellant exercised over the family. This would explain why the abuse was allowed to occur and why the complainant was too frightened to press charges until much later. It also countered the suggestion that the complainant's mother was responsible for her physical injuries.
Where the evidence sought to be adduced by the prosecution concerns a morally repugnant act committed by the accused, the potential prejudice is great and the probative value must be high to permit its reception. The evidence was clearly probative and its probative value outweighed any prejudicial effect.
Trial judges must properly instruct juries as to the use that they can make of evidence which is highly prejudicial to an accused in relation to the accused's character. Here, the trial judge did not charge the jury with respect to the use they could make of this testimony. The judge was required to explain clearly in the instructions to the jurors that they must not infer from the evidence that tended to show the appellant's bad character that the appellant was guilty because he is the sort of person who is likely to commit the offences in question. The prejudicial effect of the impugned testimony was high enough that lack of proper instruction may have resulted in unfair guilty verdicts. The trial judge's caution to the jury that they could not use a conviction on one count before them as evidence of propensity to commit the other counts and that they could only make limited use of the evidence of the appellant's prior convictions did not cure the charge of its faults. Finally, no connection exists between the degree of relevancy of the evidence and the need for instructions as to the use that could be made of the testimony since highly relevant evidence could still be extremely prejudicial to the accused and be misused by the jury in reaching their verdict.
Section 686(1) (b)(iii) of the Criminal Code should not have been invoked here. The evidence was not so overwhelming that the jury would have inevitably convicted the appellant if the judge had properly instructed them as to the use they could make of that testimony. Credibility was a large issue at trial, and it is impossible to know what was in the minds of the jurors and how they were affected by the unrestricted admission of the evidence in question. The assessment of whether to apply the curative provision is complicated by the fact that there were multiple charges which involved included offences, with the result that a properly instructed jury might have convicted but not on all the charges or for different offences.
Per Lamer C.J. and Sopinka J.: The appeal should be allowed and a new trial ordered for the reasons given by Iacobucci J. The evidence of complainant's brothers was admissible but the absence of instruction from the trial judge as to the limited purpose for which the evidence could be used required a new trial. This was not a case for the application of s. 686(1) (b)(iii) of the Criminal Code . In order to decide that, notwithstanding the judgment of the trial court could be set aside on the basis of a wrong decision on a question of law, there was no substantial wrong or miscarriage of justice, the appellate court must be satisfied by the Crown that the verdict at trial would necessarily have been the same if the error had not been committed.
In deciding whether s. 686(1) (b)(iii) should be applied, it must be asked if the guilty verdict, had the jury been properly instructed, would necessarily have been the same in the sense that any other verdict would have been unreasonable or not supported by the evidence. This exercise must be conducted with respect for the jury's function. It is generally undesirable to speculate as to the basis upon which a jury might or might not have accepted certain evidence and rejected other evidence.
The absence of the appropriate direction concerning the evidence of complainant's brothers cannot be safely assumed to have had no material effect on the deliberations of the jury. There was no instruction, as required by law, that this evidence not be relied upon as proof that the accused is the sort of person who would commit the offence charged and on that basis infer that the accused is in fact guilty. Indeed, there was an invitation to do exactly what the jury ought to have been clearly told not to do. Three possible effects of such evidence upon the jury are: (1) the jury may convict based on propensity; (2) the jury might convict to punish for past acts; and (3) the jury might become confused and substitute a verdict with respect to the past acts for a verdict on the charges in issue. The jury's verdict would not necessarily have been the same had the trial been conducted in accordance with the law.
Per L'Heureux‑Dubé J. (dissenting): The impugned evidence was relevant and, as its probative value outweighed its prejudicial effect, was properly admissible. The failure of a trial judge to instruct a jury adequately concerning the use that can be made of evidence which tends to show bad character may constitute an error of law. The charge should be considered in its entirety and be examined in the light of what was effectively conveyed to the jurors. In this case, the jury was adequately instructed concerning the applicable principles.
A court is entitled to consider the strategy of the parties in determining whether or not there was an error in the instructions to the jury. Here, defence counsel made an active tactical decision not to object to the evidence of one brother, or the instructions, but deliberately used the evidence in a strategy designed to illustrate that the allegations were so heinous as to be improbable.
Under s. 686(1)(b)(iii) of the Criminal Code , a court must ask whether a properly instructed and reasonably acting jury would have necessarily arrived at the same conclusion, and may affirm the conviction given an affirmative answer. In determining whether there has been a miscarriage of justice, a court must examine the case in its totality. Here, the evidence was overwhelming, and no jury, properly instructed and acting reasonably, could possibly have acquitted the accused. The result of a re-trial would necessarily be the same and the accused cannot be said to have been deprived of his right to a fair trial. This Court can appropriately apply the curative provisions of the Code.
Per Gonthier J. (dissenting): The evidence was admissible for the reasons stated by Iacobucci and L'Heureux‑Dubé JJ. The reasons of L'Heureux‑Dubé J. with respect to the adequacy of the charge and the application of the Code's curative provisions were agreed with. The trial judge's instructions were adequate, having regard to the circumstances of this case, including the defence counsel's full use of the evidence in support of the defence that the allegations were so heinous that it was improbable that they would have occurred or not have been reported. Further, the evidence supporting the guilt of the accused was overwhelming and s. 686(1) (b)(iii) of the Criminal Code should be applied to remedy any defect.
Cases Cited
By Iacobucci J.
Referred to: R. v. Kyselka (1962), 133 C.C.C. 103; R. v. Clarke (1981), 63 C.C.C. (2d) 224; R. v. Béland, [1987] 2 S.C.R. 398; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. B. (C.R.), [1990] 1 S.C.R. 717; R. v. D. (L.E.), [1989] 2 S.C.R. 111; R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. Broyles, [1991] 3 S.C.R. 595.
By Lamer C.J.
Referred to: Colpitts v. The Queen, [1965] S.C.R. 739; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v. Yebes, [1987] 2 S.C.R. 168; Mahoney v. The Queen, [1982] 1 S.C.R. 834; R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. D. (L.E.), [1989] 2 S.C.R. 111.
By L'Heureux‑Dubé J. (dissenting)
Vézeau v. The Queen, [1977] 2 S.C.R. 277; Young v. The Queen, [1981] 2 S.C.R. 39; R. v. Demeter (1975), 25 C.C.C. (2d) 417; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Guenot, Kocsis and Lukacs (1979), 51 C.C.C. (2d) 315; Colpitts v. The Queen, [1965] S.C.R. 739; Fanjoy v. The Queen, [1985] 2 S.C.R. 233; Mahoney v. The Queen, [1982] 1 S.C.R. 834; R. v. Nygaard, [1989] 2 S.C.R. 1074.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, ss. 237(1) , 686(1) (a)(i), (b)(iii), 691(1) (a).
APPEAL from a judgment of the Nova Scotia Court of Appeal (1991), 69 C.C.C. (3d) 193, 107 N.S.R. (2d) 231, 11 C.R. (4th) 56, dismissing an appeal from conviction by Nathanson J. Appeal allowed, L'Heureux‑Dubé and Gonthier JJ. dissenting.
Craig M. Garson, for the appellant.
Robert C. Hagell and Robert Lutes, for the respondent.
The reasons of Lamer C.J. and Sopinka J. were delivered by
//Lamer C.J.//
Lamer C.J. -- I agree that this appeal must be allowed and a new trial ordered for the reasons given by Justice Iacobucci. I agree that the evidence of L.L. and T.B. was admissible but that the absence of instruction from the trial judge as to the limited purpose for which the evidence could be used requires a new trial.
The key issue, in my view, is whether this is a case for the application of s. 686(1) (b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46 . In my respectful opinion, this is not a case for the application of s. 686(1) (b)(iii) for reasons which I will briefly develop.
The principles relating to s. 686(1) (b)(iii) have been clearly articulated by a series of decisions of this Court. The section reads as follows:
686. (1) On the hearing of an appeal against a conviction . . . the court of appeal
. . .
(b) may dismiss the appeal where
. . .
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;
The law is clear that in order to decide that, notwithstanding the judgment of the trial court could be set aside on the basis of a wrong decision on a question of law, there was no substantial wrong or miscarriage of justice, the appellate court must be satisfied by the Crown that the verdict at trial would necessarily have been the same if the error had not been committed (see, e.g. Colpitts v. The Queen, [1965] S.C.R. 739, at p. 744, cited with approval by Lamer J. (as he then was) for the Court in Wildman v. The Queen, [1984] 2 S.C.R. 311, at p. 328).
As Cartwright J. noted in Colpitts, the discharge of this burden by the Crown is a condition precedent to the right of the appellate court to apply the terms of the subsection, but the court is not bound to apply the subsection merely because this onus is discharged. Moreover, as he further pointed out, there is a danger that if appellate courts resort too readily to the proviso, "the judges would in truth be substituted for the jury, the verdict would become theirs and theirs alone, and would be arrived at upon a perusal of the evidence without any opportunity of seeing the demeanour of the witnesses and weighing the evidence with the assistance which this affords" (see Cartwright J. in Colpitts, supra, at p. 744).
Unless used with great circumspection, the provisions of s. 686(1)(b)(iii) of the Code would effectively deprive accused persons of the right to have their guilt or innocence determined by a properly instructed jury of their peers.
In applying s. 686(1) (b)(iii), it is useful to consider it in combination with s. 686(1) (a)(i), which permits the appellate court to allow the appeal "where it is of opinion that . . . the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence". The relationship between these two provisions was outlined by McIntyre J. for the Court in R. v. Yebes, [1987] 2 S.C.R. 168. In the course of his reasons, on behalf of the Court, McIntyre J. referred to Mahoney v. The Queen, [1982] 1 S.C.R. 834, citing with approval a statement from my judgment therein to the effect that before an appellate court can rely on what is now s. 686(1) (b)(iii), the Court must "first make a finding that no jury properly charged could reasonably acquit" (see McIntyre J. in R. v. Yebes, at p. 182 and Lamer J. (as he then was) in Mahoney v. The Queen, at pp. 857-58). More recently this Court in R. v. S. (P.L.), [1991] 1 S.C.R. 909, Sopinka J. said at p. 916:
On the other hand, if the Court of Appeal finds an error of law with the result that the accused has not had a trial in which the legal rules have been observed, then the accused is entitled to an acquittal or a new trial in accordance with the law. The latter result will obtain if there is legally admissible evidence on which a conviction could reasonably be based. The court cannot substitute its opinion for that of the trial court that the evidence proves guilt beyond a reasonable doubt because the accused is entitled to that decision from a trial judge or jury who have all the advantages that have been so often conceded to belong to the trier of fact. If the Court of Appeal were to make that decision the accused would be deprived of a trial to which he or she is entitled, first, by reason of the abortive initial trial and second by the Court of Appeal. There is, however, an exception to this rule in a case in which the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction. These limitations on the powers of the Court of Appeal are the result of the combined effect of s. 686(1) (a)(ii), (b)(ii) and (iii) and s. 686(2). By virtue of s. 686(1) (b)(ii) the Court of Appeal cannot dismiss the appeal if it has found an error of law unless the curative provision embodied in s. 686(1) (b)(iii) applies. If the appeal is not dismissed it must be allowed, and pursuant to the provisions of s. 686(2) either an acquittal or a new trial must be ordered.
I therefore approach the question of whether this is a case in which the proviso of s. 686(1) (b)(iii) should be applied by asking whether, if the jury had been properly instructed, the verdict of guilty would necessarily have been the same in the sense that any other verdict would have been unreasonable or not supported by the evidence. This exercise must be conducted with respect for the function of the jury, whose role it is to determine what evidence of which witnesses they accept, the weight it should be accorded and, in the final analysis, whether there exists a reasonable doubt about the guilt of the accused.
In approaching the question in this case, it is essential to bear in mind that, in the final analysis, the case turned on questions of credibility. Depending on what evidence was accepted, there certainly could have been ample evidence upon which a jury properly instructed could convict on the charges upon which this jury convicted the accused. However, verdicts of acquittal on all counts on the trial record as it stands would, in my respectful view, not be susceptible to be set aside as being unreasonable.
It is generally undesirable to speculate as to the basis upon which a jury might or might not have accepted certain evidence and rejected other evidence. This is all the more true when there is to be a new trial. Without in any way suggesting that a jury failed, or in fact should have failed, to accept any or all of the Crown evidence in this case, their decision to do so would not have been unreasonable in the circumstances of this case. The allegations were very old because there had been a long delay in bringing the allegations to the attention of the police. The accused testified in answer to the charges and denied everything. The deliberations of the jury were not short. The jury retired just after 12:00 noon, and returned just after 5:00 p.m. that afternoon with a request to re-hear certain parts of the evidence. A verdict was not returned until 10:40 a.m. the following morning. The jury acquitted on the charge of procuring a miscarriage, although there was evidence from the complainant relating to that charge. None of these considerations, of course, is in any way conclusive, but they underline the dangers inherent in speculating as to what may have been in the jury's mind as it reached its verdicts. Everything depends on what evidence was accepted and what evidence was not accepted in the face of a sworn denial of all charges from the accused in the witness box.
I then turn to the question of whether the absence of the appropriate direction concerning the evidence of T.B. and L.L. can be safely assumed to have had no material effect on the deliberations of the jury. With respect to those of a contrary view, I am quite unable to reach any such conclusion in all of the circumstances of this case. As Iacobucci J. properly says, the evidence of L.L. and T.B. tends to show that the appellant is a person of bad character with a propensity for violence. I agree with Iacobucci J. and Justice L'Heureux-Dubé that, notwithstanding this possible prejudicial effect, the evidence in the circumstances of this case was nonetheless admissible because it was relevant to several serious issues in the case such as the defence of innocent association, the system of violent control that the appellant exercised over the family, and the suggestion that Mrs. L. was responsible for the complainant's physical injuries. However, the potential of the prejudicial effect of this evidence cannot be ignored.
There was no instruction, as in my opinion the law requires, that this evidence not be relied upon as proof that the accused is the sort of person who would commit the offence charged and on that basis infer that the accused is in fact guilty (see R. v. D. (L.E.), [1989] 2 S.C.R. 111, at p. 128).
As Sopinka J. pointed out in R. v. D. (L.E.), there are three possible effects of such evidence upon the jury: first, the jury may convict based on propensity; second, the jury might convict to punish for past acts; and third, the jury might become confused and substitute a verdict with respect to the past acts for a verdict on the charges in issue. The evidence of T.B. and L.L. raised serious dangers that these improper and unjust effects might flow. Consider how the theory of the Crown was put to the jury by the trial judge:
Mr. [F.F.B.]'s evidence was evasive and contradictory on numerous occasions. No independent character witnesses were called and significantly his sons were not called to testify.
. . .
It is inconceivable that so many of the children would come forward with their evidence of cruel games, physical abuse, sexual abuse, if it did not happen. The defendant has denied it all.
It is clear from the children's evidence that each one of them had different memories of those years in [T.]. However, the constant theme in their evidence is cruel games, physical, mental and sexual abuse and control, exercised by Mr. [F.F.B.]. [Emphasis added.]
The theory of the Crown as put to the jury by the trial judge was an invitation to the jury to infer F.F.B.'s guilt of the counts in the indictment on the basis that he was a person with the propensity for cruelty and violence to children. In short, it was an invitation to the jury to do exactly what the law prohibits. Not only was there no instruction that this should not be done, as in my view the law requires; there was, in fact, an invitation to do exactly what the jury ought to have been told, in the clearest possible terms, not to do.
In these circumstances, it can scarcely be concluded that the verdict of the jury would have been the same had the trial been conducted in accordance with the law. Upon the evidence adduced, a verdict of guilty was justified, but not inevitable. A verdict of acquittal would not have been unreasonable. The absence of the required instruction, in the circumstances of this case and in light of the way the theory of the Crown was put to the jury was a serious error cutting to the heart of the manner in which the jury should approach the evidence. A clearer case for a new trial is difficult to imagine. The application of s. 686(1) (b)(iii) is completely inappropriate.
I therefore cannot agree with my colleague L'Heureux-Dubé J. concerning the application of s. 686(1) (b)(iii) in this case.
L'Heureux-Dubé J.'s reasons, in my respectful opinion, fall into error with respect to the dangers of prejudice created by the sort of evidence here in issue. She says at p. 000:
The totality of evidence in this case produces a strong sense of moral revulsion, and it would not be surprising if the jury were to conclude that the appellant was in fact a bad person. Such a conclusion does not, in itself, create a problem. The problem arises where a jury uses this conclusion to make the further conclusion, in the absence of evidence of guilt, that the accused is guilty because he is the type to do such atrocious acts. [Emphasis in original.]
With respect, this is not the law. It is precisely the very chain of reasoning against which the jury is to be cautioned; they are not to be told to go ahead and use evidence of propensity as evidence of guilt provided there is other evidence, as my colleague implies in the quoted passage. They should be told, but were not here, to put that chain of reasoning out of their minds.
In order to reach the conclusion that the evidence of the Crown is "compelling" and its weight "staggering" my colleague must assume that Crown witnesses are credible and that the evidence of the defence is not. This conclusion appears to be premised on the fact that "the complainant and her family have already lived through an experience of unspeakable violence" (at p. 000, emphasis added). These are matters which the law, justice and the public interest require to be entrusted to a properly instructed jury.
I would allow the appeal and order a new trial.
The following are the reasons delivered by
//L'Heureux-Dubé J.//
L'Heureux-Dubé J. -- I have had the advantage of reading the reasons of my colleague Justice Iacobucci, and agree with his conclusion that the evidence of L.L. and T.B. was admissible. In my opinion, the testimony was relevant and was therefore properly admissible subject to a weighing of the probative value against any prejudicial effect. Both the trial judge and the majority of the Court of Appeal agreed on this point. In this regard, I agree with Hallett J.A. of the Nova Scotia Court of Appeal who said (1991), 107 N.S.R. (2d) 231, at pp. 255-56:
In my opinion, (L.L.'s) evidence, which was set out in some considerable detail in the decisions of Justices Jones and Chipman, was admissible not as similar fact evidence but simply because it was relevant and highly probative to explain to the jury how these assaults on (P.A.L.) could have occurred and continued over so many years in this crowded household and nothing was ever said. The evidence disclosed that Mr. (L.) was rarely home and Mrs. (L.) was generally at work which left the appellant in charge of these young children. Without the evidence of his cruelty to these captive children and the total domination of them as a result of their fear of him, there is no explanation of why none of the children, including (P.A.L.), ever spoke of what was taking place. It is relevant and probative because without it this horror story, cloaked in secrecy for some 25 years, would not seem credible.
(L.L.'s) evidence was admissible to show the circumstances that existed in the household during the years these assaults on (P.A.L.) took place. I would prefer not to cloak the evidence with the questionable mantle and trappings of "similar fact" evidence to support its admissibility. (L.L.'s) evidence of the appellant's cruelty, although it certainly proves the appellant's disposition to violence and is prejudicial, was, in the peculiar circumstances of this case, admissible for the reason I have stated.
The appellant was certainly entitled to a fair trial and to have excluded evidence adduced solely to show bad disposition. However, (L.L.'s) evidence was not introduced for that sole purpose. The law does not immunize the appellant from having relevant evidence adduced by the Crown to show the circumstances and setting in which the assaults on (P.A.L.) were alleged to have taken place.
The only remaining issue, as my colleague asserts, is whether the trial judge made an error in law in instructing the jury as to the use that could be made of this evidence. If the charge is adequate in that respect, that is the end of the matter. If not, should the curative provision of s. 686(1) (b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46 , apply?
Did the Trial Judge Err in Instructing the Jury?
The failure of a trial judge to instruct a jury adequately may constitute an error of law. In determining whether or not a charge is inadequate, there are some preliminary considerations that must be kept in mind.
First, one must remain cognizant of Dickson J.'s (as he then was) observation in Vézeau v. The Queen, [1977] 2 S.C.R. 277, at p. 285:
A jury charge should not be anatomized, cut in pieces and examined part by part, as though it were a plant or animal in a laboratory experiment.
Lamer J. (now Chief Justice) confirmed in Young v. The Queen, [1981] 2 S.C.R. 39, at p. 45, a judge's charge "should be considered in its entirety and be examined in the light of what was effectively conveyed to the jurors." (See also R. v. Demeter (1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436).
Second, in examining the charge and its possible effect on the jury, the court is entitled to assume that juries are both reasonable and intelligent. In this regard, I would repeat the words of Dickson C.J. in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 692:
In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. 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. [Emphasis in original.]
In light of these remarks, I refer to the relevant portion of the charge to the jury. The trial judge commented as follows:
It is a fundamental principle of criminal law that the evidence as to one count in the indictment cannot be used to prove the guilt of an accused person on another count. For example, an accused may be charged in one count with the offence of theft and in another count with the offence of assault. Both incidents may have occurred at different times or involve different victims. In that situation, it would be wrong to use the evidence relating to the offence of theft in determining whether the accused was guilty of assault. . . .
In the present case, [F.F.B.] is charged with six counts covering four different offences. There are two counts of each of two of those offences and two counts of other offences. When considering the evidence, do not use the evidence as to one count to try to prove guilt on another count. And when examining the evidence as to one count, you should not conclude that Mr. [F.F.B.] is a person whose character or disposition is such that he likely committed the offence described in any of the other counts of the indictment. [Emphasis added.]
Reading the charge as a whole, I cannot conclude that the jury was inadequately instructed concerning the applicable principles, nor that they were incapable of understanding the instructions given them. The trial judge instructed the jury that evidence of one offence could not be used to prove another offence, and that the evidence should not be used to draw conclusions about F.F.B.'s character or disposition. I believe it is noteworthy that the jury did not find the accused guilty of all six charges on the Bill of Indictment, but rather acquitted the accused of the charge related to procuring a miscarriage (s. 237(1) of the Criminal Code ). If the jury had found the accused guilty on all charges, I would not necessarily conclude that the jury had used the evidence of L.L. improperly. However, the fact that the jury did not convict on all grounds supports the conclusion that the jury understood the principles of law, that they properly followed the instructions of the trial judge, and that they found the accused guilty of specific charges based solely on the evidence before them.
Although the instructions could have been more explicit, in the totality of the circumstances of this case, the directions given were adequate. One such circumstance of particular importance was the defence counsel's own use of the evidence in question.
Tactics of Defence Counsel
Defence counsel did not object to L.L.'s evidence, nor to the instructions given to the jury. The trial judge provided an opportunity for counsel to voice any objections to both evidence and instructions. Though defence counsel did in fact raise several objections throughout the trial, he specifically did not raise objections concerning L.L.'s evidence or the related portion of the instructions to the jury.
I am not suggesting that failure to object at trial will preclude counsel from alleging on appeal that an error was made. Mere silence of counsel cannot displace the right of an accused to a fair trial. However, it is important to consider the reasons for counsel's failure to raise any objection to L.L.'s evidence. In this regard, the comments of Arnup J.A. of the Ontario Court of Appeal in R. v. Guenot, Kocsis and Lukacs (1979), 51 C.C.C. (2d) 315, at p. 320, are apposite:
No slip or mistake of counsel should be permitted to bring about a miscarriage of justice, but on the other hand in considering the weight of the position taken in this Court with respect to an alleged omission on the part of the trial Judge of the kind mentioned we think we are quite entitled to take into consideration the position which was deliberately and forcefully taken by counsel for that appellant at the trial.
Counsel for the defence not only failed to object to the evidence of L.L., but also used it to illustrate that the allegations were so heinous as to be improbable. In the closing address to the jury, counsel specifically referred to this evidence, and stated that "the accusations against [F.F.B.] have to be viewed in the light of all of these circumstances". Counsel went on to say:
It's almost as if the Crown witnesses would want you to believe . . . that for ten years of Mr. [F.F.B.]'s 55 years of life, he was some sort of man who took on subhuman proportions and I suggest to you that that's highly unlikely.
The failure to object was neither accidental or inadvertent. Counsel was not simply caught off guard, but had a specific strategy. This is clear in comments made by defence counsel to the Justices of the Nova Scotia Court of Appeal, as cited in the reasons for judgment of Chipman J.A., at p. 250:
But, you know, it's one of those things when you're doing the trial, sometimes the more absurd it sounds, I mean, we were in a difficult situation. We had --
Justice Jones: No question about that.
Mr. Coady: -‑ a complainant and we had corroboration.
Justice Hallett: Yes, (T.), (D.).
Mr. Coady: (T.). In my mind, the evidence of (T.B.), was, it carried the day. I think his evidence was very very important. He was one of the best witnesses that the Crown could ever hope to have and that . . . so it became a situation where, to some degree, the more bizarre, the more heinous and the more absurd that the allegations in totality were, probably the greater it fed any possible hope that we had for reasonable doubt and they were given great rein by not objecting and they were cross‑examined at length about it and it was focused on.
Now, that obviously it wasn't sufficient to erode the conclusion of the Jury, but I just leave it with you. It's one of those things, it's a judgment call you make during the trial when you're in a tough situation.
Justice Hallett: At that point in time, you felt that (F.F.B.) was in great jeopardy of being found guilty, even before (L.L.) was called.
Mr. Coady: No question about that.
Counsel was of the opinion that the evidence of T.B. "carried the day", and attempted to make strategic use of the evidence of L.L. to raise a reasonable doubt. The Court is entitled to consider this strategy in determining whether or not there was an error in the instructions to the jury. Given that the failure to object was strategic, that counsel was given a full opportunity to object or to make suggestions as to the instructions, and the wording of the judge's address to the jury which I outlined earlier, I conclude that the instructions to the jury were adequate.
However, even if I were wrong in my conclusion as to the adequacy of the instructions, I would without hesitation apply s. 686(1) (b)(iii) of the Criminal Code to remedy any defect.
Section 686(1) (b)(iii) of the Criminal Code
The curative provision of the Criminal Code reads as follows:
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand trial, or against a special verdict of not guilty on account of insanity, the court of appeal
. . .
(b) may dismiss the appeal where
. . .
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred; [Emphasis added.]
There is no dispute as to the relevant test under this section. The test was set out by this Court in Colpitts v. The Queen, [1965] S.C.R. 739, at p. 756. Here, Spence J. stated the rule as follows:
If there is any possibility that twelve reasonable men, properly charged, would have a reasonable doubt as to the guilt of the accused, then this Court should not apply the provisions of [s. 686(1) (b)(iii)] to affirm a conviction.
Cartwright J. clarified the burden involved at p. 744:
. . . once error in law has been found to have occurred at the trial, the onus resting upon the Crown is to satisfy the Court that the verdict would necessarily have been the same if such error had not occurred.
The Court must ask whether a properly instructed and reasonably acting jury would have necessarily arrived at the same conclusion. If this question can be answered in the affirmative, then there has been no substantial wrong, no miscarriage of justice, and the Court may affirm the conviction. To decide whether