R. v. Griffin

R. v. Griffin
Collection
Supreme Court Judgments
Date
2009-06-18
Neutral citation
2009 SCC 28
Report
[2009] 2 SCR 42
Case number
32649, 32650
Judges
Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 32650, 32649
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42
Date: 20090618
Docket: 32649, 32650
Between:
Her Majesty The Queen
Appellant
and
John Griffin
Respondent
and between:
Her Majesty The Queen
Appellant
and
Earl Roy Harris
Respondent
Coram: Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 75)
Joint Dissenting Reasons:
(paras. 76 to 111)
Charron J. (Binnie, Deschamps, Abella and Rothstein JJ. concurring)
LeBel and Fish JJ.
______________________________
R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42
Her Majesty The Queen Appellant
v.
John Griffin Respondent
and
Her Majesty The Queen Appellant
v.
Earl Roy Harris Respondent
Indexed as: R. v. Griffin
Neutral citation: 2009 SCC 28.
File Nos.: 32649, 32650.
2008: November 14; 2009: June 18.
Present: Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for quebec
Criminal law — Trial — Charge to jury — Burden of proof — Circumstantial evidence — Reasonable doubt — Whether trial judge erred in his instructions to jury on burden of proof and its application to circumstantial evidence — Whether trial judge erred by suggesting reasonable doubt is doubt for which a reason can be supplied.
Criminal law — Evidence — Hearsay — Admissibility — State of mind exception — Charge to jury — Deceased making statement to his girlfriend shortly before his death indicating that if harm came to him it would be at the hands of her “cousin’s family”, a reference to one of the accused — Whether deceased’s statement admissible under “state of mind” exception to hearsay rule — If so, whether trial judge correctly instructed jury on limited use that could be made of statement.
The accused, G and H, were charged with first degree murder following the shooting death of P. The identity of the killer was the sole issue at trial. P’s girlfriend was the only witness who provided direct evidence on this issue and she identified G as the shooter. P and both accused were all heavily involved in the drug trade. The Crown’s theory was that the shooting was retribution for P’s failure to repay a large drug‑related debt, and that G was the shooter while H acted as the lookout. Circumstantial evidence formed the core of the case against G, and the entirety of that against H. The Crown led evidence that P was driven into hiding and was fearful for his safety in the weeks preceding his death, and that G was on a relentless search for P.
P’s girlfriend testified that shortly before his death, P said to her, “If anything happens to me it’s your cousin’s family.” She understood that P was referring to G, and that he was afraid. Acknowledging the need for an appropriate limiting instruction, the trial judge ruled that the statement was admissible to show the state of mind of P and to rebut the defence proposition that others would have had a motive to kill P at the beginning of 2003.
In his charge to the jury on the burden of proof, the trial judge correctly instructed the jury that, in order to base a verdict of guilt on circumstantial evidence, they had to be convinced beyond a reasonable doubt that the guilt of the accused was the only reasonable inference that could be drawn. However, he also stated that the accused was entitled to an acquittal if the jury found that there was an “equally rational inference” that did not point to guilt, and added that “[i]f there is a second inference that’s as reasonable, you will not be able to base a verdict of guilt on circumstantial evidence.” Following a question from the jury on whether reasonable doubt can be based upon feelings and intuitions, the trial judge repeated his previous instructions, including the ambiguous “equally rational inference” language. He added: “Whether you find there is a reasonable doubt, or whether you find there is not a reasonable doubt, you should individually be in a position to be able to explain your position.” Defence counsel objected to the use of the “equally rational inference” terminology, arguing that it could suggest to the jury that a burden of proof rested on the accused. The trial judge recalled the jury and gave a clarification using the correct language. In providing a limiting instruction to the jury in respect of P’s statement of fear of G, the trial judge told the jury the remark could be used to determine the state of mind of P shortly before his death, and to eliminate other potential people who would want to do P harm, as far as P was concerned.
The jury found G guilty as charged and H guilty of the included offence of manslaughter. The majority of the Court of Appeal set aside the convictions and ordered a new trial on the basis of the trial judge’s errors in his instructions on the burden of proof, and in the limiting instruction given in respect of P’s statement of fear of G.
Held (LeBel and Fish JJ. dissenting): The appeals should be allowed and the convictions restored.
Per Binnie, Deschamps, Abella, Charron and Rothstein JJ.: The trial judge did not err in his instructions to the jury on the burden of proof. The trial judge fulfilled the essential requirement of an instruction on circumstantial evidence by instilling in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Read in context, the words “equally rational” and “as reasonable” were not used as measures of the comparative value or weight of a non‑guilty inference, but to describe the quality of any inference, guilty or otherwise, which might be drawn from the circumstantial evidence. When the instructions on circumstantial evidence are read as a whole, it is more likely than not that they would have been understood by the jury in the manner intended by the trial judge. Moreover, the clarifying recharge was entirely correct. It was sufficient that the trial judge called the jury’s attention to his last instruction on circumstantial evidence, and then corrected the potentially ambiguous “equally rational inference” language with a clear and complete direction. [1] [33‑36] [38]
There is no dispute regarding the correctness of the general instruction on reasonable doubt given in the main charge and repeated in the judge’s reply to the jury’s question. It entirely accords with the Lifchus standard. There is also no error in the additional impugned instruction that an individual juror should be able to explain his or her point of view and identify specific reasons for reasonable doubt. Having regard to the jury charge as a whole and in light of the precise question from the jury on the role of feelings or intuitions in a reasonable doubt analysis, the instruction was simply a caution to jurors to base their verdict not on feelings or intuitions, but on a serious consideration of the evidence. [41‑42] [44]
There is no reason to disturb the trial judge’s ruling on the admissibility of the deceased’s statement made to his girlfriend shortly before his death. That statement was tendered and admitted for the truth of the fact that P himself feared G, a purpose that does not exceed the scope of the traditional “state of mind” exception to the hearsay rule, under which declarations of present state of mind are admissible where the declarant’s state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion. In the present case, there was no argument that the statement was made under circumstances of suspicion. P’s fear of G was a relevant fact because P’s fearful state of mind was probative of the nature of the relationship between he and G in the time period preceding the murder. Such information may afford evidence of the accused’s animus or intention to act against the victim, making it relevant to motive and, in turn, to the issue of identification. Accordingly, it was important for the jury to know that P went into hiding and feared for his safety in the weeks preceding his death because of his fear of G, and not because of his fear of someone else, as the defence suggested. The trial judge found that the statement’s probative value outweighed its possible prejudicial effect and admitted the statement into evidence. His decision accorded with the applicable legal principles, and as such, it is entitled to deference. [59] [62‑66] [74]
The trial judge properly instructed the jury not to use P’s statement for the prohibited purpose of proving G’s state of mind, or to conclude that G in fact intended to harm P. He correctly explained that the sole permissible use the jury could make of the statement was as proof of P’s state of mind shortly before his death. He also clearly qualified his assertion that the statement could be used to eliminate other potential people who would want to do P harm with the phrase “as far as P was concerned”. This instruction accurately set out the very purpose for which the statement was tendered: to demonstrate that as far as P was concerned — in his state of mind — G was the only person with cause to do him harm. [71]
Per LeBel and Fish JJ. (dissenting): A new trial should be ordered on the basis of errors in the jury instructions on the burden of proof and of the trial judge’s admission of P’s out‑of‑court statement. The first deficiency in the charge on the burden of proof involved the explanation of how the standard of reasonable doubt applies to circumstantial evidence. Having chosen to elaborate on the basic principle that the jury could return a guilty verdict based on the circumstantial evidence if guilt was the only rational inference they could draw from the evidence, the trial judge should have said that if there was any other (as opposed to an “equally”) rational inference arising from the proven facts that did not point to guilt, the jury would be bound to acquit. Furthermore, in his response to the specific question from the jury as to whether feelings or intuitions could form the basis for reasonable doubt, the trial judge repeated three more times the incorrect component of this instruction, using the term “equally”. Because the jury was likely to have paid particular attention to the answer to their question, this would have amplified the misdirection. In order to ensure that a misdirection to the jury has been successfully rectified, a trial judge will generally have to repeat the direction he or she has given, acknowledge that it was incorrect, tell the jury to put it out of their minds and then tell them in plain and simple terms what the law is. The second deficiency arose in the trial judge’s instruction that the jurors should be able to explain in some detail the basis for any reasonable doubt they might have. While instructing a jury that they should be able to explain their doubts would not necessarily constitute reversible error, here the trial judge’s instructions went one step further, requiring the jury to be able to identify a specific reason for their doubt. In light of either of the uncorrected deficiencies in the charge on the burden of proof, and considering their combined effect in particular, it cannot be said that there is no reasonable possibility the jury was misled in this case. The error was serious. It may well have had significant consequences. The curative proviso under s. 686(1) (b)(iii) of the Criminal Code can therefore not be applied. [77‑80] [83‑87]
The trial judge also erred in admitting the victim’s impugned out‑of‑court statement. The statement was inadmissible hearsay, under either the traditional exceptions or the principled approach. It was not admissible to prove G’s state of mind and support an inference that he had a motive to harm P. The basis for P’s statement that G wished to harm him, and whether P’s perception was accurate, are unknown and purely a matter of speculation. In addition, the statement in question is a statement of opinion which cannot be overcome by any hearsay exception, and there is a substantial risk that it was accorded undue weight: it lacked probative value, and it was highly prejudicial. Similarly, the statement is not admissible to establish P’s state of mind that he was afraid of G. The state of mind of a victim is irrelevant unless it tends to support a permissible inference regarding a relevant fact. Since P’s basis for his belief is not known, a court cannot rely upon this statement. P’s state of mind is therefore irrelevant on its own, and it is impermissible to use it to infer G’s motive. P’s statement was also not admissible to eliminate other suspects, as it could not possibly support an inference that unidentified third parties did not wish him harm. Finally, the statement could not be admitted to support other circumstantial evidence, because its probative value for this purpose is greatly outweighed by its prejudicial effect. This great risk of prejudice could not be attenuated by a limiting instruction. It is difficult to justify admitting the statement for a marginally probative and tangential purpose while insisting that the jury not use it in the most obvious and prejudicial way possible. The decision to admit the statement cannot be characterized as “harmless”, nor can the evidence against the accused be described as “overwhelming”. Accordingly, the curative proviso cannot remedy this error. [77] [88] [97‑99] [102-110]
Cases Cited
By Charron J.
Referred to: R. v. Cooper, [1978] 1 S.C.R. 860; R. v. Fleet (1997), 120 C.C.C. (3d) 457; R. v. Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361; R. v. Tombran (2000), 142 C.C.C. (3d) 380; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Naglik, [1993] 3 S.C.R. 122; R. v. S. (W.D.), [1994] 3 S.C.R. 521; R. v. Brydon, [1995] 4 S.C.R. 253; R. v. Seymour, [1996] 2 S.C.R. 252; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. P. (R.) (1990), 58 C.C.C. (3d) 334; Lewis v. The Queen, [1979] 2 S.C.R. 821; R. v. Assoun, 2006 NSCA 47, 244 N.S.R. (2d) 96; R. v. Foreman (2002), 6 C.R. (6th) 201; R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319; R. v. Lemky (1992), 17 B.C.A.C. 71, aff’d [1996] 1 S.C.R. 757; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517; R. v. Corbett, [1988] 1 S.C.R. 670.
By LeBel and Fish JJ. (dissenting)
R. v. Cooper, [1978] 1 S.C.R. 860; R. v. Brydon, [1995] 4 S.C.R. 253; R. v. Moon, [1969] 3 All E.R. 803; R. v. Seguin (1979), 45 C.C.C. (2d) 498; R. v. Boyd (1999), 118 O.A.C. 85; R. v. Carpenter (1993), 14 O.R. (3d) 641; R. v. Cavanagh (1976), 15 O.R. (2d) 173; Shapiro v. Wilkinson, [1943] O.R. 806; R. v. Lifchus, [1997] 3 S.C.R. 320; R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731; R. v. Beauchamp, 2000 SCC 54, [2000] 2 S.C.R. 720; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298; R. v. Arp, [1998] 3 S.C.R. 339; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. Cowell, [2002] O.J. No. 4783 (QL); R. v. Corbett, [1988] 1 S.C.R. 670; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; Shepard v. United States, 290 U.S. 96 (1933); R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).
Authors Cited
Canada. Law Reform Commission. Report on Evidence. Ottawa: The Commission, 1975.
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 5th ed. Toronto: Irwin Law, 2008.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Markham, Ont.: Butterworths, 1999.
APPEALS from judgments of the Quebec Court of Appeal (Baudouin, Doyon and Côté JJ.A.), 2008 QCCA 824, 2008 QCCA 825, 237 C.C.C. (3d) 374, 58 C.R. (6th) 86, [2008] Q.J. No. 3589 (QL), [2008] Q.J. No. 3590 (QL), 2008 CarswellQue 3430, setting aside the convictions of both accused and ordering a new trial. Appeals allowed, LeBel and Fish JJ. dissenting.
Thierry Nadon and Geneviève Dagenais, for the appellant.
Louis Belleau, for the respondent Griffin.
No one appeared for the respondent Harris.
The judgment of Binnie, Deschamps, Abella, Charron and Rothstein JJ. was delivered by
Charron J. —
1. Introduction
[1] Following their joint trial for first degree murder before a judge and jury, John Griffin was found guilty as charged and Earl Harris was found guilty of the included offence of manslaughter. Each appealed his conviction on similar grounds, only two of which remain at issue. Both grounds concern the trial judge’s instructions to the jury. The first ground of appeal relates to the instructions on the burden of proof, and the second to the directions on the permissible use of a statement made by the deceased shortly before his death. Doyon J.A. of the Court of Appeal of Quebec (Baudouin J.A. concurring) gave effect to both grounds and ordered a new trial; Côté J.A., in dissent, would have dismissed the appeals: 2008 QCCA 824, 2008 QCCA 825, 237 C.C.C. (3d) 374. The Crown appeals to this Court as of right on both grounds.
[2] For the reasons that follow, I would allow the appeals and restore the convictions.
2. The Evidence at Trial
2.1 The Shooting
[3] Griffin and Harris were charged with first degree murder following the shooting death of Denis Poirier on February 2, 2003. The murder took place at approximately 4:45 p.m., near the intersection of Atwater Avenue and Workman Street in Montreal. Just prior to his death, Poirier and his girlfriend, Jennifer Williams, were eating take-out food in her parked car. Poirier exited the car to urinate in a parking lot on Workman Street. Moments later, he was shot.
[4] The identity of Poirier’s killer was the sole issue at trial. Williams was the only witness who provided direct evidence of the shooter’s identity. She testified that she saw him round the corner of Atwater Avenue and Workman Street, approach Poirier, and fire a weapon three times in his direction, twice after Poirier had gone down. Williams was able to identify the shooter as Griffin.
[5] A second eyewitness to the shooting, Father Yvon Lavoie, observed part of the scene from the window of the presbytery overlooking the parking lot on Workman Street. Father Lavoie saw the profile of a man with a weapon in his right hand. He saw the man fire three shots in a downward direction, but could not see at whom or what the man was shooting. Father Lavoie was unable to identify the shooter from police photos, nor could he identify Griffin as the assailant in court.
[6] The victim and the respondents, Griffin and Harris, were all heavily involved in the drug trade. The Crown’s theory was that the shooting was retribution for Poirier’s failure to repay a large drug-related debt, and that Griffin was the shooter while Harris acted as the lookout. In support of its theory, the Crown led evidence that in the weeks leading up to the killing, Poirier was afraid for his safety and had gone into hiding. During this time, Griffin, at times accompanied by Harris, searched for Poirier with increasing urgency. Apart from the direct evidence of Williams and Father Lavoie, the Crown’s case against Griffin was based on circumstantial evidence. The case against Harris was entirely circumstantial. The circumstantial evidence is summarized in some detail by Doyon J.A. in the Court of Appeal below. The main features of the case against Griffin and Harris are the following.
2.2 The Drug Debt
[7] Matthew Demaine and Joe Besso were drug users and friends of Poirier. Demaine worked at the Claremont, a Montreal restaurant frequented by both Griffin and Poirier.
[8] Demaine testified that on December 27, 2002, he saw Griffin, Harris and a man identified as “Peter the Italian” at the restaurant. He observed Poirier hand over a bag to Peter, during the course of what appeared to be a drug transaction. Sometime after this encounter, Poirier stopped coming to the restaurant. In fact, he left his home and went into hiding at the Clarion Hotel.
[9] In early January 2003, Griffin went to the restaurant. He appeared impatient and told Demaine that he had set up a meeting with Poirier for that day. Poirier never showed up, but later called Demaine, asking him to tell Griffin that everything was all right. Demaine relayed the message.
[10] On January 5, 2003, Peter told Demaine that Poirier owed him an outstanding debt that was to be paid no later than the next day or “he’s done”. Demaine also overheard Peter say to Besso:
This guy is a friend of yours. . . . Well, you tell him he’s got until 5 o’clock tomorrow and if he doesn’t pay me, he can keep the money and he can keep the rest of the shit and I’m going to put a hit on him.
[11] That evening, Demaine and Poirier met in the bar at the Clarion Hotel where Poirier was hiding. Poirier described his financial problems to Demaine. He owed Griffin and Peter approximately $100,000 following drug-related transactions that had gone sour. He explained to Demaine that he could not repay the debt, in part because an intermediary had refused to pay tens of thousands of dollars due to him on the pretext that the quantity and quality of the drug he had provided was unsatisfactory, and because Poirier owed him money.
2.3 Griffin’s Search for Poirier
[12] Following Poirier’s failure to attend the scheduled meeting at the restaurant, Griffin set out on a relentless search for Poirier. He visited the restaurant frequently and called Demaine daily, demanding to know where Poirier was hiding.
[13] Around January 19, 2003, Griffin’s efforts to track down Poirier intensified. He went to the restaurant and gave Demaine “one last chance” to disclose Poirier’s whereabouts. Demaine refused. He was afraid that if Griffin found him, Poirier would be killed.
[14] On January 21, 2003, Poirier telephoned Demaine several times, anxiously asking if he knew where Besso, who had disappeared, could be found. Demaine did not know.
[15] On January 22, 2003, a man arrived at the restaurant and told Demaine, “Johnny [Griffin] wants to talk to you.” Griffin was waiting outside. He ordered Demaine into a vehicle, struck him, and refused to tell him where they were going as the car drove away from the restaurant. The vehicle stopped at a building and Demaine was told to go into the basement. Besso was there and it was obvious that he had been badly beaten. Griffin told Demaine “don’t worry”, he would not be beaten like Besso. Instead, Griffin said that unless he disclosed who had been “dealing” for Poirier and where Poirier was hiding, “I’m going to fucking kill you.” Demaine divulged that Poirier was at the Clarion Hotel. Griffin made a call on his cell phone, telling the person on the other end, “[Y]ou want to do some work tonight? Heavy, pretty heavy”, and then departed, leaving Demaine and Besso sequestered for several hours.
[16] Griffin returned, accompanied by Harris, and ordered Demaine into the same vehicle that had brought him earlier. A man named Ronald Turner drove. The group set out to find Poirier. En route, Griffin ordered Demaine to telephone Poirier and set up a meeting. After several attempts, Demaine was successful in reaching Poirier, but Poirier refused to meet with him. Griffin was furious. He struck Demaine several times, demanding that he persuade Poirier to meet with him by telling him that he feared for his life.
[17] The four men drove first to Poirier’s residence. Griffin and Harris got out and looked for Poirier but he was not there. They next went to the Clarion Hotel. Griffin and Harris entered the hotel, leaving Demaine in the vehicle with Turner. Demaine managed to escape and found refuge in the nearby Ambassador Hotel, where he had the concierge call the police, to whom he relayed the story of his abduction.
[18] That same evening, January 22, 2003, Poirier met with his girlfriend Williams at the bar of the Clarion Hotel. Poirier left the bar at regular intervals throughout the evening to make phone calls and check his messages, and he grew increasingly stressed as the evening went on. Around 11 p.m., Poirier suggested that Williams depart, and as she was leaving he said to her: “If anything happens to me it’s your cousin’s family.” A first cousin of Williams had a child with a first cousin of Griffin, and Williams immediately understood that Poirier was referring to Griffin. Poirier did not explain to Williams why he feared for his safety but she understood he was afraid of Griffin.
[19] The following day, during phone conversations with both Williams and Demaine, Poirier relayed that he had seen Griffin and Harris enter the Clarion Hotel the previous day and had fled to hide in another room. Williams testified that he told her he was “scared for his life” and “didn’t know what to do”.
2.4 The Fatal February 2nd Meeting
[20] In the week preceding the February 2, 2003 shooting, Griffin contacted Poirier’s friend Steven Lauti in an effort to gather information about Poirier’s whereabouts. Lauti did not have any information.
[21] Griffin also met with Jesse McBrearty, who regularly provided Poirier with cocaine, and asked that McBrearty notify him if he planned on meeting with Poirier. McBrearty did not know the nature of the relationship between the two men, only that he had been asked to facilitate a meeting between them.
[22] Shortly thereafter, a meeting was organized between McBrearty and Poirier for February 2, 2003. The two were scheduled to convene at the corner of Atwater Avenue and Workman Street, where Poirier intended to purchase cocaine from McBrearty. McBrearty contacted Griffin and told him of the meeting.
[23] Poirier arrived at the intersection of Atwater Avenue and Workman Street at the designated time on February 2. He was accompanied by Williams, and the two arrived in her car. As McBrearty had not yet appeared, Poirier and Williams went to purchase some take-out food, and then returned to Atwater and Workman. Poirier telephoned McBrearty to see when he would arrive, who in turn called Griffin to relay that Poirier was getting impatient. Griffin told McBrearty: “Don’t worry I’ll be there soon.”
[24] Cellular telephone records indicate that Griffin contacted Harris three times in the moments immediately preceding the murder, and that both men were within a few blocks of the Atwater and Workman intersection at this time. In the moments directly following Poirier’s murder, Griffin again telephoned Harris from the same vicinity. Telephone records further confirm that McBrearty was no where near the site of the shooting at the relevant time.
[25] Upon his arrest on February 5, 2003, Griffin was in possession of the licence plate number of Williams’s car. She had only owned the vehicle for a short time.
[26] Neither Griffin nor Harris testified at trial. The evidence regarding Poirier’s debt to Griffin and the latter’s desire to have the debt repaid was uncontested. The defence argued the existence of a reasonable doubt, alleging that individuals other than Griffin could have wanted to harm Poirier as a result of certain “unfortunate” drug-related transactions in which he had been involved.
3. Analysis
3.1 Instructions to the Jury on the Burden of Proof
[27] The first ground of appeal concerns the instructions to the jury on the burden of proof. The majority in the court below was of the view that the trial judge erred in his instructions on the burden of proof and its application to circumstantial evidence. Although the trial judge correctly instructed the jury on several occasions that, in order to base a verdict of guilt on circumstantial evidence, they had to be convinced beyond a reasonable doubt that the guilt of the accused was the only reasonable inference that could be drawn, the trial judge elsewhere used language suggesting that an inference other than guilt would have to be “as reasonable” in order to lead to an acquittal. In the majority’s view, this language constituted legal error and the corrected instruction given to the jury during the course of their deliberations was insufficient to remedy any potential confusion. The majority further found that the error was compounded by “an excessively demanding instruction to motivate reasonable doubt” (para. 75) given in response to a question from the jury asking whether a reasonable doubt could be based on “feelings, intuitions, et cetera”. Côté J.A. disagreed on both points, finding no legal error.
[28] After explaining the difference between direct and circumstantial evidence and noting that circumstantial evidence formed the core of the case against Griffin, and the entirety of that against Harris, the trial judge gave the following impugned instruction on the burden of proof and circumstantial evidence:
And the point that has to be kept into mind and that is extremely important, because I’ve talked about drawing inferences or drawing rational inferences, and this is something you should note. Before basing a verdict of guilt on circumstantial evidence, so before basing a verdict of guilt on circumstantial evidence, you must be convinced beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to draw from the facts you have chosen to rely upon. I’ll repeat that.
Before basing a verdict of guilt on circumstantial evidence, you must be convinced, beyond a reasonable doubt, that the guilt of the accused is the only reasonable inference to draw from the facts which you have chosen to rely upon.
In other words, if there is an equally reasonable inference, which would indicate an innocent purpose, you could not render a verdict of guilt, because you would not [be] in a position to say, the only reasonable inference that I draw from this circumstantial evidence is guilt. If there is a second inference that’s as reasonable, you will not be able to base a verdict of guilt on circumstantial evidence.
However, after your careful examination of all the evidence, if you arrive at the conclusion, the particular case, the only rationale inference to draw from the circumstantial evidence, which you rely upon, is guilt, then it would be your duty to render a verdict of guilt in those circumstances. [Emphasis added; A.R., at pp. 79-80.]
[29] Counsel made no objection on this point at the conclusion of the main charge.
[30] After two days of deliberation, the jury requested further guidance from the trial judge in this note:
Can we please get a legal definition of reasonable doubt? What things can it be based upon, for example, feelings, intuitions, et cetera? If mostly based on circumstantial evidence, where do we draw the line? Please advise. [A.R., at p. 209]
[31] With the consent of counsel, the trial judge responded to the jury’s question by repeating both the instruction provided in his main charge on the definition of reasonable doubt, which is not in issue here, and the instruction on the application of the burden of proof to circumstantial evidence set out above, this time characterizing an inference other than guilt as an “equally rational inference”. In addition, the trial judge gave a specific response to the suggestion in the jury’s question that a reasonable doubt might be based on feelings or intuitions. I return to the latter component of the judge’s answer to the jury’s question later in these reasons. I deal first with the alleged error in the instructions on circumstantial evidence.
[32] Following the judge’s response to the jury’s question, counsel for the respondents objected to the use of the “equally rational inference” terminology, arguing that it could suggest to the jury that a burden of proof rested on the accused. In the absence of the jury, the trial judge explained to counsel that his use of the phrase “equally rational inference” in this context was equivalent to saying “another reasonable inference”. Nevertheless, out of an abundance of caution, he recalled the jury and gave the following clarification:
Just on the last point when dealing with circumstantial evidence and reasonable doubt and the way the two (2) meld together, I just want to make sure that it’s clear in your mind that in order to render a verdict of guilt, based upon circumstantial evidence, the guilt of the accused would have to be the only rational inference that you could draw from the circumstantial evidence.
If there’s any other rational inference that you can draw from the evidence that would mean that you would not be able to render a verdict of guilt based on the circumstantial evidence, because then there would be — at best you would have reached maybe a probability or a likelihood of guilt, but not have reached that higher standard of proof beyond a reasonable doubt. [A.R., at p. 216]
[33] We have long departed from any legal requirement for a “special instruction” on circumstantial evidence, even where the issue is one of identification: R. v. Cooper, [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may be achieved in different ways: R. v. Fleet (1997), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v. Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran (2000), 142 C.C.C. (3d) 380 (Ont. C.A.), at para. 29.
[34] There is no question that the instructions in the present case fulfilled this essential requirement. The trial judge repeatedly made clear to the jury that a guilty verdict can only be rendered if guilt is the sole rational inference to be drawn from the circumstantial evidence. The issue to be resolved, rather, is whether the use of the words “equally rational” and “as reasonable” detracted from the otherwise correct instructions by leading jurors to believe, as the respondents contend, that they could only acquit if they found an innocent inference from the circumstantial evidence of the same weight as an inference of guilt. It is argued that the impugned language had the potential to engage the jury in an abstract comparative exercise, assessing the qualitative reasonableness of one inference against another when the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt.
[35] Read in context, as all jury instructions must be, it becomes apparent that the words “equally rational” and “as reasonable” were not used as measures of the comparative value or weight of a non-guilty inference, but, as the judge himself explained to counsel, to describe the quality of any inference, guilty or otherwise, which might be drawn from the circumstantial evidence. Indeed, no one argues that the jury should be entitled to base its decision on irrational or unreasonable inferences. When the instructions on circumstantial evidence are read as a whole, it is more likely than not that they would have been understood by the jury in the manner intended by the trial judge. That said, it is my view that the instructions on this point were not as clear as they could have been and, consequently, the trial judge was wise to recharge the jury as he did.
[36] Both parties and the court below, unanimous on this point, agreed that the clarifying recharge was entirely correct. Griffin and Harris argue, however, that this final charge could not have rectified any possible confusion that may have resulted from the use of the impugned language because the trial judge failed to refer back to the problematic phrases employed in the earlier instructions. This argument was accepted by the majority of the Court of Appeal, and rejected by Côté J.A.
[37] Griffin suggests that the trial judge should have instructed the jury in terms akin to the following:
What was required to correct the deleterious effect of the defective instructions was for the trial judge to tell the jury that they didn’t need to determine whether any innocent inference they may consider was more reasonable or as reasonable, or less reasonable than an inference of guilt and that, as long as an inference not indicating guilt could be considered rational or reasonable and was not inconsistent with the evidence, they must acquit. [R.F., at para. 52]
[38] With respect, I agree with Côté J.A. that an instruction along the lines proposed by Griffin would serve only to exacerbate any potential confusion stemming from the previous instructions. It was sufficient that the trial judge called the jury’s attention to his last instruction on circumstantial evidence, and then corrected the potentially ambiguous “equally rational inference” language with a clear and complete direction.
[39] I now turn to the trial judge’s answer to the jury’s question whether a reasonable doubt could be based on feelings or intuitions. After canvassing the gist of his proposed answer with counsel and obtaining their approval, the trial judge instructed the jury as follows:
So, when you ask in your question, is it feelings, is it intuitions, I would answer no to that question. Whether you find there is a reasonable doubt, or whether you find there is not a reasonable doubt, you should individually be in a position to be able to explain your position. You should be able to say, for instance, “Listen, I have a reasonable doubt on this essential element, and here’s why I have a reasonable doubt. I can’t rely on Witness A and B. I don’t find Witness A and B credible. And here’s why I don’t find Witness A and B credible, because there’s contradictions, or they’re not confirmed in the evidence, and I don’t accept that Exhibits X, Y and Z help me out on this particular issue,” so that you’re able as a judge to explain why you are supporting a particular position.
On the other hand, you should be able, also, if your position is, “I don’t have a reasonable doubt on this issue. I think the Crown has proved this essential element” to be able to explain it, to be able to say, “The reason I’ve arrived at that decision,” for example, “is that I accept the testimony of Witnesses A and B. I saw them testify. I saw the manner in which they testified. I find that there is confirmation of their testimony within the evidence. I also rely upon Exhibits X, Y and Z, because it adds -- the facts that I garnered out of Exhibits X, Y and Z, reinforce my opinion that the Crown has proved that particular essential element beyond a reasonable doubt.”
So, as you can see, it’s really a cold objective analysis of the facts, but it’s based upon the facts, and you might arrive at the conclusion as “I have a reasonable doubt, because there’s a lack of evidence on a particular issue that I think is important in my mind,” or there’s a contradiction in the evidence.
So, it’s not feelings or intuitions, and then -- either way, I mean, you can’t say, “Oh, I just got a feeling that the person is guilty.” That means that you’re not really analyzing the evidence. You should be able to explain beyond simply saying, “Well, I’ve got a feeling, or I’ve got an intuition”, because you’re called upon to base your decision upon the facts that have been -- upon the proo