R. v. MacKenzie

R. v. MacKenzie
Collection
Supreme Court Judgments
Date
1993-01-21
Report
[1993] 1 SCR 212
Case number
22423
Judges
Lamer, Antonio; La Forest, Gérard V.; Gonthier, Charles Doherty; McLachlin, Beverley; Stevenson, William
On appeal from
Nova Scotia
Subjects
Criminal law
Notes
SCC Case Information: 22423
Decision Content
R. v. MacKenzie, [1993] 1 S.C.R. 212
John Alexander MacKenzie Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. MacKenzie
File No.: 22423.
1992: April 3; 1993: January 21.
Present: Lamer C.J. and La Forest, Gonthier, McLachlin and Stevenson* JJ.
on appeal from the nova scotia supreme court, appeal division
Criminal law ‑‑ Evidence ‑‑ Charge to jury ‑‑ Accused making incriminating statement to police ‑‑ Accused stating at trial that his "confession" was in fact a recounting of second‑hand knowledge ‑‑ Trial judge instructing jury to reject accused's statement to police if they had any reasonable doubt about it ‑‑ Whether trial judge's charge misleading.
Criminal law -- Appeals to Supreme Court of Canada -- Crown appeals -- Accused abandoning one of his grounds of appeal -- Court refusing to hear Crown's arguments on point since Crown had not cross-appealed -- Crown precluded from cross-appealing in view of its overall success in court below -- Criminal Code, R.S.C., 1985, c. C-46, s. 693(1) .
Criminal law -- Appeals -- Appeal from acquittal -- Standard of appellate review -- Court of Appeal not misstating standard by requiring only that Crown show that jury's verdict might have been different had it been properly instructed.
The accused was arrested and charged with murdering three of his neighbours, who had been killed with shots from his revolver. He volunteered an incriminating statement about the shootings and later, after he had requested legal counsel, started in on a more detailed and explicit statement. This second statement was excluded by the trial judge because it was made after the accused had exercised his right to counsel. At trial, the accused said his "confession" to the police was in fact a recounting of his second‑hand knowledge of the shootings gained from other neighbours during the day of drinking following the shootings. The trial judge instructed the jury on how to evaluate the contradiction between the accused's statement to the police and his testimony at trial. As part of this instruction he told them to "reject entirely" the accused's statement to the police if they had any reasonable doubt about it. He also said that if the jury accepted the accused's statement, then "it will be considered by you with the other evidence that you decide to accept". The jury found the accused not guilty on all counts. The Court of Appeal, in a majority decision, overturned the acquittal and ordered a new trial. The majority found that there had been a significant misdirection by the trial judge, in that part of the charge may have suggested to the jury that they should consider the accused's confession separate and apart from the other evidence.
The accused's appeal to this Court raised the issues of (1) whether the trial judge erred in instructing the jury that the accused's out-of-court inculpatory statement must be rejected entirely if his testimony at trial raised any reasonable doubt about it; (2) whether the trial judge erred in excluding from evidence the accused's second statement to the police; and (3) whether the majority of the Court of Appeal erred in holding that the verdict might have been different, thereby usurping the jury's function. At the hearing the accused abandoned the second issue concerning the exclusion of his second statement to the police, and the Crown then urged the Court to adopt a position in favour of a new trial because of the excluded statement, but the Court refused to hear its argument on this point.
Held: The appeal should be allowed and the acquittal restored.
Per La Forest, Gonthier and McLachlin JJ.: On the first issue of the jury instruction, the trial judge's charge, when viewed as a whole, was not misleading to the jury. In R. v. Morin, this Court determined that a jury charge is in error if it leaves the jury with the impression that each item of evidence is to be considered piecemeal against the criminal standard of proof or if the jury is instructed to take a two-stage approach to their deliberations, whereby an initial fact-finding stage would weed out certain items of evidence, leaving the determination of guilt or innocence to be based only on the surviving evidence. In the case at bar, there was no general instruction to apply the criminal standard of proof to items of evidence in isolation. While the charge does focus on one item of evidence, namely the accused's statement to the police, the direction on this evidence is carefully couched in terms of all the other evidence in the case. The charge does not instruct the jury to divide its deliberations into two phases, and there was almost no chance for the jury to form the impression that "the whole of the evidence" was intended to mean only the whole of the piecemeal bits of evidence already proven beyond a reasonable doubt.
The contradiction between the accused's out‑of‑court statement and his testimony at trial was a key issue in the case, and the trial judge was entitled to give the jury some guidance on how to handle this discrepancy in the evidence. As a matter of logic, the two stories could not be reconciled, and the judge's suggestion that one of the statements must be "rejected", couched as it was with the proviso that all of the other evidence must be taken into account, in no way prejudiced the Crown. The jury instruction was an accurate reflection of the principle enunciated by this Court in Nadeau that an accused's version of events is entitled to the benefit of the doubt as against a competing version, providing the comparison is made having due regard to all the evidence. It is both acceptable and desirable for a trial judge to focus the jury's attention on vital issues, and to direct their minds to the proper burden of proof on those discrete questions.
While the statement "it will be considered by you with the other evidence that you decide to accept", read in isolation, may be viewed as an erroneous statement of the law, since it suggests that a determination of guilt should be based solely on certain pre‑selected items of evidence, read in context it would not have misdirected the jury. This statement follows the trial judge's direction to consider all the evidence in making a determination, and therefore could not be interpreted as invoking a two‑stage process. Consequently, the instruction to the jury is in keeping with the rule in Morin and was not in error.
On the second issue, which was abandoned by the accused, the Crown had not cross-appealed nor was it entitled to do so in view of its overall success in the court below. Under s. 693(1) of the Criminal Code , the Crown may appeal to this Court only where the Court of Appeal has set aside a conviction or dismissed a Crown appeal. In this case the Court of Appeal allowed the Crown's appeal, albeit on a different issue.
On the third issue, the Court of Appeal did not misstate the standard of appellate review by requiring only that the Crown show that the jury's verdict might have been different had it been properly instructed. A test of "might have been different" is simply the converse of "would not necessarily have been the same", and is thus consistent with the test established by the majority of this Court in Vézeau, which is the governing law today.
Per Lamer C.J.: La Forest J.'s reasons were substantially agreed with. While it is a misdirection to instruct juries to "reject" evidence, to tell juries to reject factual propositions which the Crown's evidence does not establish beyond a reasonable doubt is to state the law correctly. The jury never rejects evidence, but it can and must decide whether to accept or reject the factual assertions made by that evidence before it uses them to support or infer other factual assertions in reaching its verdict. Such factual assertions can only be accepted and used by the jury to convict the accused if they are established by the evidence beyond a reasonable doubt. Facts which are not so established cannot corroborate or be allowed to "bootstrap" other doubtful facts. In the circumstances of this case, the trial judge was not in error in inviting the jury to "reject" the factual proposition in one of the two statements, depending on which they believed, because both statements emanated from the accused and could not logically co‑exist. There was only a single determination of credibility to be made. If the jury believed the accused's exculpatory evidence at trial, they must of necessity have disbelieved his inculpatory statements to the police. The accused need never establish his version of events beyond a reasonable doubt, but must only raise a reasonable doubt with his evidence, even where he bears an evidentiary burden.
Cases Cited
By La Forest J.
Considered: R. v. Morin, [1988] 2 S.C.R. 345; R. v. Minhas (1986), 29 C.C.C. (3d) 193 (Ont. C.A.), leave to appeal refused, [1987] 2 S.C.R. viii; Vézeau v. The Queen, [1977] 2 S.C.R. 277; referred to: Nadeau v. The Queen, [1984] 2 S.C.R. 570; R. v. Barnes, [1991] 1 S.C.R. 449; Guillemette v. The Queen, [1986] 1 S.C.R. 356; R. v. Challice (1979), 45 C.C.C. (2d) 546; R. v. Thatcher, [1987] 1 S.C.R. 652; R. v. Gauthier, [1977] 1 S.C.R. 441; R. v. Demeter (1975), 25 C.C.C. (2d) 417.
By Lamer C.J.
Referred to: R. v. Morin, [1988] 2 S.C.R. 345; Nadeau v. The Queen, [1984] 2 S.C.R. 570; R. v. Proudlock, [1979] 1 S.C.R. 525.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, ss. 686(4) , 693 [am. c. 27 (1st Supp.), s. 146 ; am. c. 34 (3rd Supp.), s. 12 ].
Authors Cited
Eggleston, Sir Richard. Evidence, Proof and Probability, 2nd ed. London: Weidenfeld and Nicolson, 1983.
APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1991), 103 N.S.R. (2d) 91, 282 A.P.R. 91, 64 C.C.C. (3d) 336, allowing the Crown's appeal from the accused's acquittal on charges of first degree murder. Appeal allowed.
Joel E. Pink, Q.C., and Donald C. Murray, for the appellant.
Robert C. Hagell and Denise Smith, for the respondent.
//Lamer C.J.//
The following are the reasons delivered by
Lamer C.J. -- I have had the benefit of reading the reasons of Justice La Forest in this appeal, and I agree substantially with his analysis of the issues before the Court and his disposition of the appeal. However, I feel compelled to add a few comments which follow from my concurrence in Wilson J.'s reasons in R. v. Morin, [1988] 2 S.C.R. 345. In retrospect, it appears to me that confusion exists in two aspects of this area of the law: (i) the essential distinction between facts and evidence of facts in the process of the jury's deliberations, and (ii) the relationship between credibility and the standard of proof in a criminal trial.
The Distinction Between Facts and Evidence
In my view, it is crucial to recognize the difference between the roles of "facts" and "evidence of facts" in a criminal trial; the failure to apply this basic distinction has confused the debate on this issue. As an example of this tendency, see R. Eggleston, Evidence, Proof and Probability (2nd ed. 1983), who at p. 122 begins talking of "facts that are not certainly established" but concludes with comments directed to the effect of "evidence" not being taken into account, and stating that a requirement to prove evidence beyond a reasonable doubt obviates the entire field of corroboration. As I state below, doubtful evidence may be corroborated by other evidence, even other doubtful evidence; doubtful facts, however, cannot be corroborated by, or inferred from, other doubtful facts. Throughout many discussions of this point, the terms "fact" and "evidence" are used interchangeably, and thereby improperly. It is beyond question that the jury must always consider the whole of the evidence in reaching their verdict, and that individual items of evidence are not to be examined in isolation. Evidence which may be doubtful standing alone may nevertheless be corroborated or otherwise supported by other evidence, and the jury is always to evaluate the evidence as a whole with a view to such corroboration or support. Therefore, it is an error to refer to the jury "rejecting" evidence at any stage of their deliberations. All of the evidence must always be considered.
However, the jury can and must decide whether the whole of evidence establishes, beyond a reasonable doubt, the individual facts necessary to support a conviction. This must, of necessity, be done in a sequential manner, and I agree with La Forest J. that it is unrealistic to expect the jury to have an "epiphanic" experience in reaching its verdict. In Morin, Wilson J. stated (at p. 378) that the process of the jury's deliberations with respect to the Crown evidence "requires a fact elicited through the mouth of a witness to be assessed by the jury in the context of all the evidence and to be rejected if it has not been proved beyond a reasonable doubt." Therefore, while the jury never rejects evidence, it can and must decide whether to accept or reject the factual assertions made by that evidence before it uses those factual assertions to support or infer other factual assertions towards reaching its verdict. Such factual assertions can only be accepted and used by the jury to convict the accused if they are established by the evidence beyond a reasonable doubt. Facts which are not so established cannot corroborate or be allowed to "bootstrap" other doubtful facts. Any lower standard would present the possibility that an accused could be convicted on the basis of facts which are established as matters of conjecture only.
An analogy I often used in charging juries, especially in cases where the Crown's case was circumstantial, was that of a fisherman's net. The evidence presented at trial by the Crown seeks to establish factual propositions. Once established, facts may be used to infer other facts. In this way, established factual propositions intertwine to construct a net of such propositions. If a factual proposition is established as a mere probability or likelihood, and not beyond a reasonable doubt, it cannot be used to infer any further facts. The interweaving of facts breaks down and there is a hole in the net. A net with a hole, however small, is no useful net at all, since there remains a critical factual proposition which is not consistent only with the accused's guilt. Thus, a fact which is not established beyond a reasonable doubt can play no part in the jury's decision to convict, either as a fact on which they rely to find an essential element of the offence, or as a fact used to infer such facts.
Therefore, while it is a misdirection to instruct juries to "reject" evidence, to tell juries to reject factual propositions which the Crown's evidence does not establish beyond a reasonable doubt is to state the law correctly.
The Relationship Between Credibility and the Standard of Proof
It is also important to understand the relationship between the jury's assessment of credibility and the criminal standard of proof when the jury is faced with conflicting accounts from Crown and defence witnesses. It is a clear error for a trial judge to instruct the jury to choose the more believable, persuasive or credible of the two accounts in such circumstances. As with all facts on which a conviction is to be supported, the factual propositions in the Crown witnesses' evidence must be established by that and other evidence beyond a reasonable doubt. If the jury does not believe the Crown witnesses' version, or any part of it, beyond a reasonable doubt, it cannot be used to convict the accused, even if they do not believe the contrary version of the defence. It may very well be that both versions are wrong, and the accused is entitled to the benefit of this doubt with respect to the credibility of any witness. This was my holding in Nadeau v. The Queen, [1984] 2 S.C.R. 570, in the passage cited by La Forest J. at pp. 27-28 of his reasons.
In the circumstances of this case, however, the trial judge was not in error in inviting the jury to "reject" the factual proposition in one of the two statements, depending on which they believed, because both statements emanated from the accused, and, as La Forest J. states, could not logically co-exist. There was only a single determination of credibility to be made. If they believed the accused's exculpatory evidence at trial, they must of necessity have disbelieved his inculpatory statements to the police. It must be remembered, though, that the accused need never establish his or her version of events beyond a reasonable doubt; that standard only and always applies to the Crown. The accused must only raise a reasonable doubt with his or her evidence, even where he or she bears an evidentiary burden; see R. v. Proudlock, [1979] 1 S.C.R. 525.
With these observations, I would dispose of the appeal in the manner proposed by La Forest J.
//Le juge La Forest//
The judgment of La Forest, Gonthier and McLachlin JJ. was delivered by
La Forest J. -- The appellant, John Alexander MacKenzie, was accused of murdering three of his neighbours in the early hours of June 24, 1989. At trial, a jury found him not guilty. The acquittal was overturned on appeal, and a new trial was ordered. The appellant appealed to this Court as of right, seeking the restoration of his acquittal.
At the time of his trial, the appellant was 47 years old. He was an alcoholic. In 1985, after living for 25 years in Toronto, he moved back to his home community in rural Antigonish County, Nova Scotia. He purchased a plot of land in Beech Hill, and in 1988 moved a mobile home onto the lot and made it his home. The three victims of the shooting, John Boucher, Joseph Deon and Edmund Deon, were neighbours of the appellant. Each owned a home on the Beech Hill Road within a kilometre of the appellant's property. The Deons were brothers, and were good friends of Boucher.
For some reason, the Deons and Boucher apparently engaged in a concerted campaign of harassment against the appellant that lasted from the time he moved to Beech Hill until their deaths. This harassment verged on terrorism, consisting of repeated property damage, the killing of the appellant's pets, shooting bullet holes through his mailbox, and a series of threats to shoot him or dynamite his trailer.
In the early morning of Saturday, June 24, 1989 the Deons and Boucher were shot to death. Boucher was shot three times in his yard, Edmund Deon was shot seven times in his bedroom, and Joseph Deon was shot twice while sitting at the wheel of his pick-up truck, which was parked in his driveway. All the shots came from the appellant's .22 calibre revolver. The revolver was retrieved by police the next day from the appellant's well, along with a pair of his shoes.
During the six weeks before the shootings the appellant was drinking heavily. On June 12, two weeks before the shootings, he discovered that a calf of his was missing. Suspecting his neighbours, he took his revolver and confronted Boucher and his wife Lorraine at their home. They were able to calm the appellant down, and she drove him home. At trial, the appellant testified that Lorraine Boucher took his revolver from him at that time, and that this was the last he saw it. Mrs. Boucher did not testify on this point. Later that evening, the appellant decided to confront Edmund Deon about the calf. He could not find his revolver, so he took a .303 rifle with him. During the confrontation that ensued the appellant discharged the rifle into the floor of Deon's house. The next day the RCMP arrested the appellant, detained him overnight, and confiscated his rifle.
On June 23 the appellant spent most of the day drinking at his mobile home with his brother-in-law, William Cogger. The appellant consumed about 21 beers during the day. Boucher visited them for about an hour in the evening, drank at least one beer, and left without any dispute or incident. At around 11:00 p.m. the appellant and Cogger went to sleep. Sometime during the night, they were awakened by a knock at the door. Cogger testified that he heard the appellant say "who's there?", that a voice responded, and that the appellant said "I'm sleeping. Go home. I'm going back to sleep". Cogger heard nothing more, and fell back asleep. The appellant testified that the visitor was Joseph Deon.
At 4:17 a.m. Daniel Girrior, another neighbour on the Beech Hill Road, was awakened by three gunshots. It was not unusual to hear gunshots at night in that area, so Girrior went back to sleep. William Cogger awoke at 4:45 a.m. to find the appellant sitting fully dressed at a table. Cogger testified that the appellant said he got the "three sons-of-whores last night." Cogger said "tell me this is not the truth", to which the appellant replied "no brother it's not true." The appellant then said he was going to put his gun down the well, and left the house. On returning, he spoke about getting rid of his shoes. At 4:58 a.m. Daniel Girrior heard three shots. Two minutes later he heard three more shots.
At trial, the appellant testified that he fell back to sleep after Boucher's early morning visit. The next thing he remembered was waking up on the floor, with the idea that he had seen the bodies of the Deons and Boucher on the Beech Hill Road. He felt he must have been dreaming, and told Cogger about the dream. He was surprised to see his revolver on the table, as he had not seen the gun since Lorraine Boucher took it from him two weeks earlier. The appellant had no recollection of shooting the Deons and Boucher, or of throwing the revolver and the shoes down the well.
The appellant and Cogger spent the rest of June 24 drinking. At about 9:00 p.m. the appellant was arrested by the RCMP. Realizing that he was drunk, the police did not attempt to question him. He was given food and at 11:30 p.m. was put in jail for the night.
The next morning the appellant was given breakfast, and then brought before two officers for questioning. He was advised of his right to silence and to counsel, and the officers then told him they had reason to believe he had put his gun and shoes down his well, and that he had previously been seen at the Boucher house. They asked the appellant for his side of the story, and he volunteered an incriminating statement about the shootings. One of the officers took notes for about ten minutes, and then suggested that the statement should be in a formal written form. At this point the appellant requested legal counsel, and the officers told the appellant that there would be no more questions. The officers left the appellant alone to call his sister so she could retain a lawyer. When they returned a pause of several minutes ensued when nothing was said. The accused then started in on a more detailed and explicit statement. This second statement was excluded by the trial judge because it was made after the appellant had exercised his right to counsel.
At trial, the appellant said his "confession" to the police was in fact a recounting of his second-hand knowledge of the shootings gained from other neighbours during the day of drinking following the shootings. He remembers little of his statements to the police, other than that he was suffering at the time from "the worst hangover of my life".
During a four-hour jury charge, MacIntosh J. instructed the jury on the law regarding the defences of provocation and drunkenness, and that there were four possible verdicts on each murder count: not guilty, guilty of first degree murder, second degree murder, or manslaughter. He also instructed the jury on how to evaluate the contradiction between the appellant's statements to the police and his testimony at trial. Part of this instruction was as follows:
Here we recall that the accused is saying he doesn't remember anything of what happened, that these statements he gave is what he had heard from other people. If you decide to accept part or all of it, it will be considered by you with the other evidence that you decide to accept. You, of course, must reach your verdict on the whole of the evidence that you decide is worthy of belief. The accused, as a witness, you can accept his earlier testimony as the statement that the police -- the Crown alleges he made to the police. You can accept that as the truth of what happened ("He" being the accused person) as opposed to what he said in court. This we cannot do with an ordinary witness but with an accused, you are free to accept either, what he said in the statement or what he said in court. If you find that his evidence at trial represented the true facts, or if you have any reasonable doubt about it, you will reject entirely the earlier statement. [Emphasis added.]
A majority of the Appeal Division of the Nova Scotia Supreme Court found the underlined passage a significant misdirection, in that it may have suggested to the jury that they should consider the appellant's confession separate and apart from the other evidence.
After two hours of deliberation, the jury asked to have the evidence of William Cogger, Lorraine Boucher and Daniel Girrior read back. After this, the jury deliberated for one and a half days, and then returned a verdict of not guilty on all counts.
Judgments
The Crown appealed the acquittal on a total of eleven grounds. Only two of these were seriously considered by the Appeal Division: that MacIntosh J. erred in (1) excluding the appellant's second out-of-court statement to the police, and (2) instructing the jury to reject entirely the accused's first out-of-court statement to the police if his testimony at trial raised any reasonable doubt about it. The appeal was allowed on the second ground; see (1991), 103 N.S.R. (2d) 91. Chipman and Hart JJ.A. wrote separate judgments for the majority, Freeman J.A. dissented.
On the first question, Chipman J.A. reviewed the governing case law on an accused's rights to counsel and silence, and concluded that the police did nothing wrong in this instance. He reasoned that the duty of the police under the Canadian Charter of Rights and Freedoms does not go so far as to require them to cease listening to unelicited statements that a detainee may make after requesting counsel. As such, Chipman J.A. found that the trial judge had erred in excluding the statement. However, he also found that the admission of the statement would not necessarily have affected the jury's verdict, because the crucial first statement had been put before the jury. Hart J.A. agreed that the trial judge had erred in excluding the second statement, but in his view the exclusion might have materially affected the jury's deliberations. He would have ordered a new trial on this ground. Freeman J.A. differed from his colleagues, concluding that the trial judge was correct in excluding the statement. In the result, the Crown's appeal on this first ground was dismissed.
On the second question, Chipman J.A. reviewed the jury charge, referred to R. v. Morin, [1988] 2 S.C.R. 345; R. v. Minhas (1986), 29 C.C.C. (3d) 193 (Ont. C.A.), leave to appeal refused, [1987] 2 S.C.R. viii, and Nadeau v. The Queen, [1984] 2 S.C.R. 570, and concluded as follows, at pp. 109-10:
On reading the trial judge's charge in its entirety, I have the same concern as did Sopinka, J., in Morin, that the instruction to regard the evidence as a whole was not sufficient to correct the impression they might well have got, that they were to examine the Crown's evidence about the confession in isolation without taking into account the evidence as a whole in determining if it established guilt beyond a reasonable doubt. It seems to me that basically the same error was made here as was made in Morin.
Moreover, this error was of sufficient gravity that it cannot be said that had it not been made the result would necessarily have been the same. Sopinka, J., said in Morin, supra, the charge with respect to the burden of proof lays down for the jury one of the most fundamental rules of the game. The confession was undoubtedly a crucial part of the Crown's case. Without it, the jury could easily have formed a reasonable doubt. With it, it is difficult to see how a reasonable doubt as to some degree of guilt at least could be entertained. It can therefore be said with a reasonable degree of certainty that the outcome may have been affected by the misdirection relating to the confession. The appeal should be allowed and a new trial ordered.
Hart J.A. shared Chipman J.A.'s view that the instruction was incorrect, finding that it permitted the jury to apply the doctrine of reasonable doubt to parts of the evidence rather than to the evidence as a whole, and that the overall instruction did not remedy this defect.
In dissent, Freeman J.A. conceded that the language used in the trial judge's charge to the jury raised the possibility of a misdirection, but he did not agree that an error warranting a new trial had been made. He reasoned as follows, at pp. 133-35:
At its worst, the part of the charge in question, balanced as it is by instructions that the whole of the evidence must be considered, is not so clear as to cause the jury to override their common sense and prematurely exclude a piece of evidence as important as the statement. Once accepted as possibly true, common sense would dictate that the statement remain part of their deliberations to be rejected as a true description of events only when the whole of the evidence including the statement failed to persuade them beyond a reasonable doubt of the respondent's guilt.
. . .
If one were to assume that as a result of Mr. Justice MacIntosh's charge, the jury thought their duty was to apply the standard of proof beyond a reasonable doubt to the statement as a piece of evidence in isolation from the other evidence, how might they have proceeded? They could only reject the statement in isolation if it raised a reasonable doubt within itself, if it contained contradictions or inconsistencies that might realize a reasonable doubt. No such internal flaws are apparent. Therefore it had to be considered in the light of other evidence.
. . .
In considering the truth of [the appellant's] evidence about the statement, the jury had been instructed to take into account corroboration, circumstances and the condition of the accused. That is to say, the jury was instructed to consider the statement with the whole of the evidence. The charge would be objectionable only if it could be seen as directing the jury to reject the statement before it had done so. It is difficult to see how the jury might have considered the statement except in the context of all of the other evidence. It did not lend itself to consideration in either total or partial isolation.
Accordingly, Freeman, J.A. would have dismissed this ground of appeal.
Points in Issue
1.Whether the trial judge erred in law in instructing the jury that the appellant's out-of-court inculpatory statement must be rejected entirely if his testimony at trial raised any reasonable doubt about it.
2.Whether the trial judge erred in law in excluding from evidence certain statements made by the appellant to police officers.
3.Whether the majority of the Court of Appeal erred in law in holding that the verdict might have been different, thereby usurping the function of the jury.
Analysis
All three of the points in issue were argued in written submissions to this Court, but at the commencement of the hearing appellant's counsel abandoned the second issue concerning the exclusion of the appellant's second statement to the police. This abandonment created certain procedural difficulties for the respondent, which I will comment on briefly before turning to the remaining issues, which concern the charge to the jury.
The Excluded Statement
In the court below, the Crown won a partial victory on the excluded confession: a majority found that the trial judge had erred in excluding it, but only Hart J.A. would have ordered a new trial because of this error. The appellant appealed only the first point of law to this Court, arguing that the trial judge had not erred. I presume the reason for appealing on this point was to foreclose the admission of the statement at a new trial, in the event that this Court upholds the decision of the court below that such a re-trial is necessary. In any event, as I have noted, the appellant eventually abandoned this ground of appeal. As the hearing of this appeal progressed, the Crown urged this Court to adopt Hart J.A.'s minority position in favour of a new trial because of the excluded statement. The Chief Justice pointed out that the Crown had not cross-appealed on this point, and indeed was not entitled to cross-appeal. Accordingly, the Court refused to hear the Crown's arguments on this issue.
Our refusal to hear the Crown on this point was based on the limited scope for Crown appeals to this Court, as determined by s. 693(1) of the Criminal Code, R.S.C., 1985, c. C-46 :
693. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3), the Attorney General may appeal to the Supreme Court of Canada
(a) on any question of law on which a judge of the court of appeal dissents; or
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada. [Emphasis added.]
The problem for the Crown in this case is that the Court of Appeal allowed the Crown's appeal, albeit on a different issue than that which the Crown sought to pursue in this Court. The Crown's overall success in the court below precluded any further appeal, or cross-appeal, to this Court.
A similar question was recently considered by this Court in R. v. Barnes, [1991] 1 S.C.R. 449. In that case, a trial judge stayed proceedings in a drug case because of entrapment. The Crown appealed, seeking a reversal of the stay and a substitution of convictions against the accused. The appeal was successful in part: the Court of Appeal lifted the stay, but ordered a new trial rather than entering convictions. The accused appealed, and although the Crown did not cross-appeal it argued not only that the lifting of the stay should be affirmed, but that this Court should impose the convictions that the Court of Appeal had refused. Lamer C.J., writing for the majority, rejected the Crown's arguments on this latter point. He found that s. 693 of the Code has no application when a Crown appeal has been allowed. Moreover, Lamer C.J. relied on Guillemette v. The Queen, [1986] 1 S.C.R. 356, in finding that this Court's jurisdiction to vary a judgment of a court of appeal (pursuant to s. 695 of the Code) applies only when there is a valid Crown appeal before the Court. He concluded with the following passage, at p. 466:
In the absence of an appeal by the Crown, this Court has no jurisdiction to allow the Crown's request that the order below be modified. To hold otherwise would allow the Crown to appeal to this Court where such an opportunity has not been provided by the Criminal Code or the Supreme Court Act . The Crown is not given by statute the ability to appeal to this Court a decision which allowed its appeal from an acquittal or judicial stay of proceedings, but which gave the Crown less than what had been requested. As a result, there is no statutory provision which would allow the Crown to appeal from the Court of Appeal's judgment. Absent a statutory right of appeal, there is no right of appeal. [Emphasis in original.]
In my view, this reasoning is directly applicable to the present situation. As in Barnes, a court of appeal has allowed a Crown appeal, thereby precluding any appeal, or cross-appeal, by the Crown to this Court. The subdivision of a case on appeal into discrete grounds does not assist the Crown in this regard: an unfavourable ruling by a court of appeal on one point of law is overtaken by the Crown's success on other grounds.
In the result, since the second ground of appeal has been abandoned by the appellant, it is unnecessary for this Court to consider the Appeal Division's decision regarding the exclusion of the accused's second statement.
The Jury Charge
I turn now to the first ground of appeal, which concerns the charge to the jury on the accused's first statement to the police. All three judgments at the Appeal Division concluded that the jury instruction was to some degree flawed in that it might have left the jury with the impression that it was required to consider the out-of-court statement separate and apart from the evidence as a whole. The majority concluded that this error warranted a new trial, but in dissent Freeman J.A. found that any error was cured by other elements of the charge. Before considering the charge and these judgments in detail, it is useful to review R. v. Morin, supra, as that decision looms large in the debate in the court below and before this Court.
In Morin, this Court found that a jury charge will be in error if it leaves the jury with the impression that each item of evidence is to be considered piecemeal against the criminal standard of proof. As well, a majority found that it is an error to instruct a jury to take a two-stage approach to their deliberations, whereby an initial fact-finding stage would weed out certain items of evidence, leaving the determination of guilt or innocence to be based only on the surviving evidence. The jury charge at issue in Morin is reproduced in the majority reasons (at p. 355) beginning with the following general instruction:
You are not obliged to accept any part of the evidence of a witness just because there is no denial of it. If you have a reasonable doubt about any of the evidence you will give the benefit of that doubt to the accused with respect to such evidence. Having decided what evidence you consider worthy of belief, you will consider it as a whole, of course, in arriving at your verdict. [Emphasis added by Sopinka J.]
Later in the charge, the trial judge stated that the doctrine of reasonable doubt did not apply to each individual item of evidence, but rather to the whole of the case and to "the total body of evidence". However, he then gave a series of instructions on particular items of evidence, each of which suggested that the criminal standard was to be applied, in isolation, to that item. For example, with regard to certain hair and fibre evidence, the trial judge said:
It seems to me that this evidence does not go beyond proving that Christine could have been in the Honda motor vehicle and that the accused could have been at the scene of the killing and, of course, that is not proof beyond a reasonable doubt.
Sopinka J., writing for the majority, found that the charge as a whole was misleading to the jury. He commented as follows, at p. 356:
In my opinion, based on my reading of the charge as a whole, a jury would likely have concluded that in examining the evidence they were to give the accused the benefit of the doubt in respect of any evidence. This process of examination and elimination would occur during the so-called "fact finding" stage, to use the appellant's phrase. The evidence as a whole to which the jury was to apply itself in order to determine guilt or innocence was the residuum after the "fact finding" stage. There is no other way of reading the first excerpt from the charge. [Emphasis in original.]
Sopinka J. rejected the argument that the trial judge's second instruction cured the erroneous impression left by the first (at p. 356):
The second excerpt refers to the "whole of the case" and the "total