R. v. Morin

R. v. Morin
Collection
Supreme Court Judgments
Date
1988-11-17
Report
[1988] 2 SCR 345
Case number
20449
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; Sopinka, John
On appeal from
Ontario
Subjects
Action
Criminal law
Evidence
Notes
SCC Case Information: 20449
Decision Content
r. v. morin, [1988] 2 S.C.R. 345
Guy Paul Morin Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. morin
File No.: 20449.
1988: June 30; 1988: November 17.
Present: Dickson C.J. and McIntyre, Lamer, Wilson, Le Dain*, La Forest and Sopinka JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Charge to jury ‑‑ Reasonable doubt ‑‑ Whether trial judge misdirected jury as to burden of proof ‑‑ Whether standard of proof beyond reasonable doubt applied to individual pieces of evidence.
Criminal law ‑‑ Charge to jury ‑‑ Reasonable doubt ‑‑ Whether jury's deliberations involve a two‑stage process: the "fact finding" stage and the "verdict" stage ‑‑ Whether trial judge should instruct jurors to apply standard of proof beyond reasonable doubt at each stage.
Criminal law ‑‑ Charge to jury ‑‑ Psychiatric evidence ‑‑ Evidence tending to show accused's propensity to commit crime ‑‑ Crown seeking to refer to the psychiatric evidence on the issue of identity ‑‑ Whether trial judge should have directed the jury to consider the psychiatric evidence on the issue of the identity of the killer.
Evidence ‑‑ Psychiatric evidence ‑‑ Admissibility ‑‑ Evidence tending to show accused's propensity to commit crime ‑‑ Crown seeking to refer to the psychiatric evidence on the issue of identity ‑‑ Whether psychiatric evidence admissible if tendered by the Crown ‑‑ Whether evidence relevant on the issue of identity ‑‑ Whether evidence admissible as evidence of similar facts.
Criminal law ‑‑ Appeal from an acquittal ‑‑ Trial judge misdirected jury as to burden of proof ‑‑ Crown's duty to satisfy the court that the verdict would not necessarily have been the same if the jury had been properly instructed ‑‑ New trial ordered by Court of Appeal ‑‑ Whether Crown had discharged the onus.
Practice ‑‑ Supreme Court of Canada ‑‑ Introduction of fresh evidence ‑‑ Procedure to follow.
The appellant was acquitted on a charge of first degree murder of a nine‑year‑old girl. On appeal, the Court of Appeal unanimously found (1) that the trial judge erred in his charge when he invited the jury to apply the criminal standard of proof beyond a reasonable doubt to individual pieces of evidence; and (2) that he ought to have directed the jury that certain evidence elicited on the Crown's examination of the defence psychiatrist, tending to show that both the perpetrator and the appellant shared abnormal traits, was relevant on the issue of identity. The Court also rejected appellant's application to admit fresh evidence, in affidavit form, of the psychiatrist's explanation of the answers given on examination. This fresh evidence supported the contention that the evidence was not relevant on the issue of identity. In light of the seriousness of the errors, the majority of the Court of Appeal ordered a new trial. In this Court, the appellant submitted that the charge, when read as a whole, did not invite a piecemeal examination of the evidence and that the Court of Appeal failed to recognize a two‑stage process in the deliberation of the jury, each of which attracts the application of the doctrine of reasonable doubt. The appellant submitted that in the "fact finding" stage, the evidence must be examined in relation to the other evidence but, having been so examined, it must individually meet the test of proof beyond a reasonable doubt. At the verdict stage, the jury looks at all the evidence which it has accepted and determines whether this evidence as a whole establishes the guilt of the accused beyond a reasonable doubt. He also submitted that the evidence of the psychiatrist on examination did not establish the necessary nexus between the perpetrator and the appellant to be admissible, if such evidence is ever admissible for the prosecution; and finally, that the Court of Appeal erred in dismissing his application to admit fresh evidence.
Held: The appeal should be dismissed.
Per Dickson C.J. and McIntyre, La Forest and Sopinka JJ.: It is misdirection to instruct the jury to apply the standard of reasonable doubt to individual pieces of evidence. In this case, the jury would likely have concluded from the trial judge's charge read as a whole that, in examining the evidence, they were to give the appellant the benefit of the doubt in respect of any evidence. The effect of the misdirection may very well have been that the jury examined evidence that was crucial to the Crown's case in bits and pieces. Standing alone or pitted against the evidence of the appellant without the support of other evidence, much of this evidence might have been discarded. When the jury came to consider the Crown's case as a whole there may not have been very much left of it. This scenario is a very likely one and the charge therefore constituted a serious misdirection.
It is also misdirection to instruct the jury to apply the criminal standard at two stages as submitted. The two‑stage application of the criminal standard is wrong in principle because the function of a standard of proof is not the weighing of individual items of evidence but the determination of ultimate issues. Furthermore, it would require the individual member of the jury to rely on the same facts in order to establish guilt. The law is clear on this point: the members of the jury can arrive at their verdict by different routes and need not rely on the same facts. Indeed, the jurors need not agree on any single fact except the ultimate conclusion. During the process of deliberation, the jury must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt. This of necessity requires that each element of the offence or issue be proved beyond a reasonable doubt. Beyond this injunction, it is for the trier of fact to determine how to proceed and a trial judge should not lay down additional rules for the weighing of the evidence. But there are two exceptions: (1) a jury should be instructed that the facts are not to be examined separately and in isolation with reference to the criminal standard; and (2) where issues of credibility arise between the evidence for the prosecution and the defence, the jury should be charged that it is not necessary for them to believe the defence evidence on a vital issue but that it is sufficient if it, viewed in the context of all the evidence, leaves them in a state of reasonable doubt as to the accused's guilt.
The trial judge was right in instructing the jury that the evidence elicited on the Crown's examination of the defence psychiatrist was inadmissible as proof of identity. The Court of Appeal erred in directing a new trial on this ground. Conduct tending to establish that the appellant is a member of an abnormal group with the same propensities as the perpetrator is insufficient to render the evidence admissible as similar fact evidence. There must be some further distinguishing features. The proffered evidence must tend to show that there was some striking similarity between the manner in which the perpetrator committed the criminal act and such evidence. Apart from that requirement, such evidence will also be excluded if its prejudicial effect overbears its probative value.
The admission of psychiatric evidence tendered by the Crown tending to show disposition should be subject to the same test. Accordingly, it is only admissible where it is relevant to an issue in the case apart from its tendency to show disposition and, if it is relevant to that issue, where its probative value outweighs its prejudicial effect. If the evidence sole relevance or primary relevance is to show disposition, then the evidence must be excluded. In order to be relevant on the issue of identity, the evidence must tend to show that the accused shared a distinctive unusual behavioural trait with the perpetrator of the crime. The trait must be sufficiently distinctive that it operates virtually as a badge or mark identifying the perpetrator. In this case, the fact that the appellant was a member of an abnormal group, some of whose members have the unusual behavioural characteristics shown to have been possessed by the perpetrator, was not sufficient.
Given the conclusion with respect to the second ground, the ground of appeal relating to the Court of Appeal's refusal to permit the introduction of fresh evidence need not be considered. Nevertheless, a party who intends to introduce fresh evidence in the argument of an appeal in this Court should apply by motion to this Court for an order admitting the new evidence. The application should be supported by an affidavit establishing the pre‑conditions for the reception of such evidence. If this procedure is adopted when the Court of Appeal has refused to hear the evidence, a motion can be made to this Court in advance of the appeal to determine whether it will hear the evidence. Nothing is gained by making the Court of Appeal's refusal a ground of appeal since the criteria for admissibility of the evidence are precisely the same in this Court as in the Court of Appeal.
On an appeal from an acquittal, it is the duty of the Crown to satisfy the court that the verdict would not necessarily have been the same if the jury had been properly instructed. The burden is a heavy one and the Crown must satisfy the court with a reasonable degree of certainty. The charge with respect to the burden of proof lays down for the jury one of the most fundamental rules of criminal trial process. If the jury accepted the instruction and examined the evidence separately, subjecting each item to the standard of proof beyond a reasonable doubt, then the whole process of decision was distorted and there was no proper trial of the appellant. Therefore, the Crown discharged the onus. Given the cogency of the evidence, there was the requisite degree of certainty that the verdict would not necessarily have been the same if the proper instruction had been given.
Per Lamer and Wilson JJ.: Reasonable doubt plays two distinct roles in the criminal trial process. First, at the primary level, the facts upon which the jury rely in order to arrive at a determination of guilt must be established beyond a reasonable doubt. This means that the jury must be satisfied, within the context of all the facts of the case, that each of the facts they rely on for a finding of guilt has been proved beyond a reasonable doubt. After looking at the context of all the facts, if the jury still has a reasonable doubt about a particular fact, this doubt must be resolved in favour of the accused and that piece of evidence rejected. At the second level, reasonable doubt operates in the determination of guilt or innocence. The jury must look at the totality of the evidence and determine whether on the proved facts, i.e., on those facts which have survived the scrutiny at the primary level, the accused is guilty. If there remains a reasonable doubt as to the accused's guilt, the doubt must be resolved in favour of the accused and a verdict of not guilty entered.
In this case, while the trial judge was correct to direct the jury not to use facts that were not proved beyond a reasonable doubt in order to found a conviction, he erred in suggesting that each fact should be assessed in isolation from the others. The trial judge should have instructed the jury that in their ultimate determination of guilt they could rely only on facts which, when assessed in the context of all the facts, they found to have been proved beyond a reasonable doubt; that they must not make a finding of guilt on doubtful facts; and, that facts, which might seem doubtful when viewed in isolation, might become completely credible against the backdrop of all the other facts.
The Court of Appeal erred also on this point when it indicated that the only thing that must be proved beyond a reasonable doubt was the guilt of the accused. The implication of the Court of Appeal's judgment is that the facts underlying this conclusion do not themselves need to be proved beyond a reasonable doubt. This is wrong. It gives the jury no guidance as to what standard of proof it must apply to the "fact finding" exercise. In the absence of direction they might apply a balance of probabilities or even less stringent test. The jury must be instructed that in making a determination as to the guilt of the accused they must have resort only to facts which, when assessed in the context of all the facts, have been proved to their satisfaction beyond a reasonable doubt.
Cases Cited
By Sopinka J.
Referred to: Stewart v. The Queen, [1977] 2 S.C.R. 748; R. v. Bouvier (1984), 11 C.C.C. (3d) 257 (Ont. C.A.), aff'd [1985] 2 S.C.R. 485; R. v. Challice (1979), 45 C.C.C. (2d) 546; Nadeau v. The Queen, [1984] 2 S.C.R. 570; R. v. Thatcher, [1987] 1 S.C.R. 652, aff'g (1986), 24 C.C.C. (3d) 449 (Sask. C.A.); R. v. Van Beelen (1973), 4 S.A.S.R. 353; Thomas v. The Queen, [1972] N.Z.L.R. 34; Director of Public Prosecutions v. Boardman, [1975] A.C. 421; R. v. Taylor (1982), 66 C.C.C. (2d) 437; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Glynn (1971), 5 C.C.C. (2d) 364; R. v. Lupien, [1970] S.C.R. 263; R. v. McMillan (1975), 23 C.C.C. (2d) 160 (Ont. C.A.), aff'd [1977] 2 S.C.R. 824; R. v. Robertson (1975), 21 C.C.C. (2d) 385; R. v. Speid (1985), 20 C.C.C. (3d) 534; R. v. Stolar, [1988] 1 S.C.R. 480; Palmer v. The Queen, [1980] 1 S.C.R. 759; Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Lynch, Malone and King (1978), 40 C.C.C. (2d) 7; R. v. Moreau (1986), 26 C.C.C. (3d) 359; R. v. Agbim, [1979] Crim. L.R. 171.
By Wilson J.
Applied: Chamberlain v. The Queen, [1984] 58 A.L.J.R. 133; referred to: Nadeau v. The Queen, [1984] 2 S.C.R. 570; R. v. Thatcher, [1987] 1 S.C.R. 652; R. v. Van Beelen (1973), 4 S.A.S.R. 353.
Authors Cited
Cross, Sir Rupert. Cross on Evidence, 6th ed. By Sir Rupert Cross and Colin Tapper. London: Butterworths, 1985.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 9. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1981.
APPEAL from a judgment of the Ontario Court of Appeal (1987), 21 O.A.C. 38, 36 C.C.C. (3d) 50, allowing the Crown's appeal from the acquittal of the accused on a charge of first degree murder and ordering a new trial. Appeal dismissed.
Clayton Ruby and Michael Code, for the appellant.
David Fairgrieve and Laurie Vechter, for the respondent.
The judgment of Dickson C.J. and McIntyre, La Forest and Sopinka JJ. was delivered by
1. Sopinka J.‑‑This case illustrates once again the hazards in attempting to amplify the application of the principle that in a criminal case all elements of the charge must be proved by the prosecution beyond a reasonable doubt.
2. On February 7, 1986, Guy Paul Morin was acquitted on a charge of first degree murder of Christine Jessop, allegedly committed between October 2, 1984 and January 1, 1985.
3. The appellant entered a plea of not guilty at trial. His position was that he was not the killer, but in the alternative, if he was the killer he was not guilty by reason of insanity.
4. The evidence at trial was reviewed in some detail in the reasons of the Court of Appeal, now reported at (1987), 36 C.C.C. (3d) 50 (Ont.), and need not be repeated here.
5. The Crown appealed the acquittal to the Court of Appeal on the basis of two alleged errors in the charge to the jury. The Court of Appeal was unanimous that the jury had been misdirected in the following respect:
(i) Standard of Proof
6. The trial judge invited the jury to apply the criminal standard of proof beyond a reasonable doubt to individual pieces of evidence.
(ii) Psychiatric Evidence
7. That the trial judge ought to have directed the jury that certain evidence elicited on examination from a defence psychiatrist, Dr. Orchard, tending to show that both the perpetrator and the appellant shared abnormal traits, was relevant on the issue of identity.
8. The Court of Appeal did not, however, agree on the disposition of the appeal. Brooke and Robins JJ.A. were satisfied that the errors warranted a new trial. Cory J.A. was not satisfied that the Crown had established that the verdict would not necessarily have been the same if the jury had been properly instructed.
9. In the result, a new trial was directed and that decision is challenged in this appeal.
10. In outline the submission of the appellant on these two points is:
(i) Standard of Proof
11. Mr. Ruby submitted that the charge as a whole did not invite a piecemeal examination of the evidence. The Court of Appeal erred in failing to recognize a two‑stage process in the deliberation of the jury, each of which attracts the application of the doctrine of reasonable doubt. During the first, or "fact finding" stage, the jury determines "what happened". The evidence must be examined in relation to the other evidence but, having been so examined, it must individually meet the test of proof beyond a reasonable doubt. Only evidence that does so is considered at the next stage.
12. The second is the guilty, or verdict, stage during which the jury looks at all the evidence which it has accepted and determines whether this evidence as a whole establishes the guilt of the accused beyond a reasonable doubt. It is submitted by the appellant that the charge to the jury was in accordance with the foregoing.
(ii) Psychiatric Evidence
13. Mr. Code submitted that the evidence of Dr. Orchard on examination did not establish the necessary nexus between the perpetrator and the appellant to be admissible, if such evidence is ever admissible for the prosecution. The evidence obtained did not go beyond evidence of mere disposition and is excluded on policy grounds.
14. Furthermore, even if the evidence possessed the necessary ingredients to establish some nexus between the killer and the appellant, the Court of Appeal erred in failing to balance its probative value as against its prejudicial effect.
15. In aid of this ground an application had been made to the Court of Appeal to admit fresh evidence in the form of an affidavit of Dr. Orchard explaining the answers given on examination. The Court of Appeal rejected this application without hearing the fresh evidence. The appellant says the Court of Appeal erred and the refusal is put forward as a ground of appeal.
Factual Background
16. Although a detailed review of the evidence is neither necessary nor, in the circumstances, desirable, a few brief extracts will serve to make the issues more intelligible. The Crown relied, inter alia, on the following evidence:
(i) hair embedded in tissue on a silver chain around the deceased's neck was analyzed scientifically and found to match the hair of the appellant;
(ii) several hairs in the appellant's car were similarly matched with the hair of Christine Jessop. The appellant denied that Christine Jessop was ever in his car;
(iii) certain fibres and animal hairs found at the murder scene were matched with fibre and animal hairs found in the appellant's car or residence;
(iv) statements alleged to have been made by the appellant to one Hobbs, an undercover officer, from which an inference of guilt might be drawn and appellant's demonstration in the Whitby jail in May 1985 of how he repeatedly stabbed his victim;
(v) the appellant's admissions and inculpatory statements to two cell‑mates, Leyte and May, in the Whitby jail.
17. The appellant disputed the significance of the expert evidence relating to the samples of hair and fibre. The evidence of Hobbs, Leyte and May was forcefully attacked on the grounds of inaccuracy and lack of credibility. The appellant also put forward an alibi defence, the gist of which was that after leaving work he went shopping and did not return home until after Christine Jessop disappeared.
18. With respect to the alternative defence of insanity, the appellant called psychiatric evidence including that of Dr. Orchard, a forensic psychiatrist. It was during the examination of this witness by Crown counsel, Mr. Scott, that the evidence which gave rise to the second ground of appeal was elicited.
First Ground: Alleged Misdirection Concerning the Standard of Proof
19. The appellant submits that the charge, when read as a whole, did not invite the jury to subject individual pieces of evidence to the criminal standard but rather the effect of the charge was that during the "fact finding" stage items of evidence were to be examined in relation to other evidence. The residuum resulting from this process constitutes the "whole of the evidence" from which the jury determines whether guilt has been proved beyond a reasonable doubt.
20. This argument raises two questions:
(i) Is the appellant's interpretation of the charge correct?
(ii) Assuming it is, is it misdirection to instruct the jury to apply the criminal standard at two stages as submitted?
21. The appellant does not contest that it is misdirection to instruct the jury to apply the standard of reasonable doubt to individual pieces of evidence. There is ample authority for this view: Stewart v. The Queen, [1977] 2 S.C.R. 748, at pp. 759‑61; R. v. Bouvier (1984), 11 C.C.C. (3d) 257 (Ont. C.A.), at p. 265, aff'd [1985] 2 S.C.R. 485.
22. The following are the relevant excerpts from the charge to the jury set out in the order in which they occurred:
1. Concerning Evidence
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.]
2. Concerning Burden of Proof
The accused is entitled to the benefit of reasonable doubt on the whole of the case and on each and every issue in the case.
Proof beyond a reasonable doubt does not apply to the individual items of evidence or the separate pieces of evidence in the case, but to the total body of evidence upon which the Crown relies to prove guilt. Before you can convict you must be satisfied beyond a reasonable doubt of his guilt.
3. Concerning Hairs and Fibres
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.
4. Concerning Appellant's Statements to Hobbs
I was going to go on to say that if you find that the evidence of the accused at trial here represents the correct interpretation of those tapes and transcripts, or parts of the tapes and transcripts, or if you have a reasonable doubt that that might be so, you will give him the benefit of the doubt as to those parts of the tapes or transcripts and adopt his interpretation.
5. Concerning Appellant's Statement to Inmate May
Now, as to that evidence in relation to that part of the tape that I have just read, if you find the evidence of the accused at trial represents the correct interpretation of that exchange, or if you have a reasonable doubt that that may be so, you will give the benefit of the doubt to the accused and adopt his interpretation.
23. 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.
24. The appellant contends, however, that the second excerpt corrected this error. Cory J.A. agreed that it and the instruction as to alibi "do much to rectify the errors made on this subject" (p. 62). The second excerpt refers to the "whole of the case" and the "total body of evidence". Having been told earlier that the "whole" upon which the verdict was to be based consisted of the evidence that had been accepted, I am not satisfied that the jury would have interpreted this passage as a correction. Rather, they might very well have assumed that the earlier definition of the "whole" still applied. At best, from the appellant's standpoint the jury would be confused. Subsequent passages in the charge illustrate what is meant by the first excerpt and would confirm that individual pieces of evidence were to be examined by reference to the criminal standard.
25. Excerpt 3 occurs after a review of the evidence relating to the hair and fibres. The appellant suggests that this observation by the trial judge is merely descriptive of the inference that can be drawn from the evidence. In my opinion, in light of what was said in the first excerpt, the jury would conclude that the appellant was to be given the benefit of the doubt and this evidence was not to be considered as part of the whole in arriving at the jury's verdict.
26. Excerpt 4 deals with the evidence of undercover officer Hobbs and the appellant's interpretation of what was said. Hobbs' version might have been strengthened in the minds of the jury if considered along with other evidence, in particular the evidence of Leyte and May. These two cell‑mates gave evidence about statements and actions of the appellant tending to incriminate him. This passage in the charge invited the jury to pit the evidence of Hobbs in isolation against that of the appellant. If the evidence of the appellant put the evidence of Hobbs in doubt, then by reason of the instruction in the first excerpt, this evidence was to be rejected in favour of the appellant's interpretation which was not inculpatory.
27. The instruction in excerpt 5 invited the jury to deal with the evidence of cell‑mate May in the same manner, with the same result.
28. The appellant submits, citing R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), that different considerations apply where the credibility of defence evidence is at issue. In such cases the argument is that the defence evidence does not have to be believed but "only has to raise a reasonable doubt". That does not mean, however, that the defence evidence or the evidence which it contradicts or explains is to be examined piecemeal. The judgment of Morden J.A. in Challice, supra, which the appellant agrees expresses the traditional view and is consistent with the judgment of this Court in Nadeau v. The Queen, [1984] 2 S.C.R. 570, and R. v. Thatcher, [1987] 1 S.C.R. 652, correctly states the law in the following passage (at p. 557):
Understandably, a jury have to give careful consideration to issues of credibility when deliberating upon their verdict, and with respect to various pieces of evidence they may have differing views: total acceptance, total rejection, or something in between. An effective and desirable way of recognizing this necessary part of the process, and putting it to the jury in a way that accurately comports with their duty respecting the burden and standard of proof, is to instruct the jury that it is not necessary for them to believe the defence evidence on a vital issue‑‑but that it is sufficient if it, viewed in the context of all the evidence, leaves them in a state of reasonable doubt as to the accused's guilt: see R. v. Lobell, [1957] 1 Q.B. 547 at p. 551, per Lord Goddard, C.J. [Emphasis added.]
29. Nothing in Nadeau, supra, supports the appellant's submission. In that case the trial judge charged the jury in effect that they should accept either the Crown's version of the facts or that of the accused. He added that the accused was entitled to the benefit of the doubt only if the versions were equally consistent with the evidence. The judgment of Lamer J. makes it plain that the accused's version is entitled to the benefit of the doubt unless when considered in light of all the evidence the jury is satisfied beyond a reasonable doubt that the Crown's version is correct. He said (at p. 573):
The jurors cannot accept his [a Crown witness'] version, or any part of it, unless they are satisfied beyond all reasonable doubt, having regard to all the evidence, that the events took place in this manner; otherwise, the accused is entitled, unless a fact has been established beyond a reasonable doubt, to the finding of fact the most favourable to him, provided of course that it is based on evidence in the record and not mere speculation. [Emphasis added.]
30. There is nothing in the judgment in the Thatcher case which is inconsistent with this view.
31. The effect of the misdirections referred to above may very well have been that the jury examined evidence that was crucial to the Crown's case in bits and pieces. Standing alone or pitted against the evidence of the accused without the support of other evidence, much of this evidence might have been discarded as not measuring up to the test. When the jury came to consider the Crown's case as a whole there may not have been very much left of it. We cannot know for certain, but this scenario is a very likely one and the charge therefore constituted a serious misdirection.
32. This conclusion is sufficient to dispose of this ground of appeal without addressing the second point in the appellant's argument: the submission that it is a correct instruction to a jury that they are to apply the criminal standard in two stages‑‑the fact finding stage and the verdict, or guilt, stage. Since, however, it was an attempt to do so by the trial judge that led to the difficulties in the charge, I propose to consider this point.
33. The authorities reviewed above are clear that the jury is not to examine the evidence piecemeal by reference to the criminal standard. Otherwise, there is virtually no guidance in previous cases as to what legal rules, if any, apply to the process of weighing the evidence. Attempts to formulate such rules have been frowned upon. Thus, in R. v. Van Beelen (1973), 4 S.A.S.R. 353 (S.C. in banco), a case heavily relied on by the appellant, the full Court of South Australia held that in finding the facts the jury could not draw an inference of guilt from several facts whose existence was in doubt. The learned author of Cross on Evidence (6th ed. 1985), in referring to this case characterizes this as an esoteric question and concludes (at p. 146):
Whatever may be the proper direction in the circumstances of a particular case, it is to be hoped that questions such as those which have just been raised will never be allowed to become the basis of prescribed rules.
34. A case which comes closest in grappling with this problem is Thomas v. The Queen, [1972] N.Z.L.R. 34 (C.A.) The trial judge charged the jury in the following language (at p. 36):
Now whilst each piece of evidence must be carefully examined, because that is the accused's right and that is your duty, the case is not decided by a series of separate and exclusive judgments on each item or by asking what does that by itself prove, or does it prove guilt? That is not the process at all. It is the cumulative effect . . . . [Emphasis added by the Court of Appeal.]
35. Counsel for the appellant in that case contended that the jury should be instructed to proceed in a series of separate steps to examine the evidence and eliminate that which did not meet the requisite standard. This submission was answered as follows by North P. (at p. 37):
If we have understood Mr Temm's argument correctly, it is the passage in the summing‑up which we have italicised that he challenges. As the argument proceeded, it became increasingly plain to us that the premise for his propositions was based on a misconception of the respective functions of the Judge and the jury in a criminal case. It is the duty and obligation of the Judge to instruct the jury on all matters of law, including the burden and standard of proof required in criminal cases. The facts, on the other hand, are for the jury, and while the Judge may think it right to give the jury some assistance in dealing with the facts, it is no part of his duty to tell the jury that each item of evidence must be weighed by them separately, and that they must decide that it has been proved beyond reasonable doubt before they can use it in reaching their verdict. It is for the jury to determine for themselves which parts of the evidence they are prepared to accept or to reject. What Mr Temm apparently sought in vain at the trial and now sought to support in this Court, was, what he claimed as the appellant's right to a direction instructing the jury to proceed by a series of separate steps, eliminating as they proceeded on their intellectual journey every fact which, considered by itself, raised more than one inference, so that in the end the jury should consider only those facts and inferences which in themselves proved beyond reasonable doubt that the appellant was guilty.
The Crown case in this instance was built up of a number of separate ingredients, which it was contended acquired a meaning in the context of the indictment, only when examined with proper regard to the interrelation of the constituent elements.
36. The argument in favour of a two‑stage application of the criminal standard has superficial appeal in theory but in my respectful opinion is wrong in principle and unworkable in practice. In principle it is wrong because the function of a standard of proof is not the weighing of individual items of evidence but the determination of ultimate issues. Furthermore, it would require the individual member of the jury to rely on the same facts in order to establish guilt. The law is clear that the members of the jury can arrive at their verdict by different routes and need not rely on the same facts. Indeed the jurors need not agree on any single fact except the ultimate conclusion. See Wigmore on Evidence (Chadbourn rev. 1981), vol. 9, § 2497, at pp. 412‑14; R. v. Lynch, Malone and King (1978), 40 C.C.C. (2d) 7 (Ont. C.A.), at p. 19; R. v. Bouvier (Ont. C.A.), supra, at pp. 264‑65; R. v. Moreau (1986), 26 C.C.C. (3d) 359 (Ont. C.A.), at p. 389; R. v. Agbim, [1979] Crim. L.R. 171 (C.A.); R. v. Thatcher (1986), 24 C.C.C. (3d) 449 (Sask. C.A.), at p. 510, appeal dismissed, [1987] 1 S.C.R. 652, at p. 697.
37. The matter is summed up in Cross on Evidence, op. cit., at p. 146:
It has been held by the Court of Appeal that it is unnecessary for a judge to direct the jury that it must be unanimous with regard to even one item of evidence bearing upon a particular count before convicting on it. It seems to be enough that all members of the jury find the accused guilty upon the basis of some of the facts bearing upon that count.
38. In practice it is not practical not only because the jury would have to agree on the same facts but what individual facts prove. Individual facts do not necessarily establish guilt but are a link in the chain of ultimate proof. It is not possible therefore to require the jury to find facts proved beyond a reasonable doubt without identifying what it is that they prove beyond a reasonable doubt. Since the same fact may give rise to different inferences tending to establish guilt or innocence, the jury might discard such facts on the basis that there is doubt as to what they prove.
39. The concern which proponents of the two‑stage process express is, that facts which are doubtful will be used to establish guilt. The answer to this concern is that a chain is only as strong as its weakest link. If facts which are essential to a finding of guilt are still doubtful notwithstanding the support of other facts, this will produce a doubt in the mind of the jury that guilt has been proved beyond a reasonable doubt.
40. I conclude from the foregoing that the facts are for the jury to determine subject to an instruction by the trial judge as to the law. While the charge may and often does include many helpful tips on the weighing of evidence such as observing demeanour, taking into the account the interest of the witness and so forth, the law lays down only one basic requirement: during the process of deliberation the jury or other trier of fact must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt. This of necessity requires that each element of the offence or issue be proved beyond a reasonable doubt. Beyond this injunction it is for the trier of fact to determine how to proceed. To intrude in this area is, as pointed out by North P., an intrusion into the province of the jury.
41. The reason we have juries is so that lay persons and not lawyers decide the facts. To inject into the process artificial legal rules with respect to the natural human activity of deliberation and decision would tend to detract from the value of the jury system. Accordingly, it is wrong for a trial judge to lay down additional rules for the weighing of the evidence. Indeed, it is unwise to attempt to elaborate on the basic requirement referred to above. I would make two exceptions. The jury should be told that the facts are not to be examined separately and in isolation with reference to the criminal standard. This instruction is a necessary corollary to the basic rule referred to above. Without it there is some danger that a jury might conclude that the requirement that each issue or element of the offence be proved beyond a reasonable doubt demands that individual items of evidence be so proved.
42. The second exception is that it is appropriate where issues of credibility arise between the evidence for the prosecution and the defence that the jury be charged as suggested by Morden J.A. in Challice, supra. There is a danger in such a situation that a jury might conclude that it is simply a matter as to which side they believe. The suggested charge alerts them to the fact that, if the defence evidence leaves them in a state of doubt after considering it in the context of the whole of the evidence, then they are to acquit.
43. Consequently, even if the appellant is correct in his interpretation of the charge to the jury, there was misdirection‑‑although not as serious as the misdirection which I have found occurred.
Second Ground: The Psychiatric Evidence
44. The Court of Appeal accepted the submission of the prosecution that the trial judge had misdirected the jury when he charged them as follows:
One more thing I must tell you about this psychiatric evidence. There is contained in that evidence, I believe, particularly from Dr. Orchard, that the accused is a person who is quite capable of committing the type of crime we are considering in this case. I instruct you that you must not use that evidence as proof or indication of proof that he did, in fact, kill Christine Jessop just because he is capable of it.
45. The evidence referred to was elicited on the examination of Dr. Orchard by Mr. Scott, counsel for the Crown. The purport of this evidence is vital in the resolution of this ground of appeal. It is, therefore, necessary to quote it at some length:
Q. [Mr. Scott] I take it by the very fact that you are capable of expressing an opinion on what condition this man would be in, in the event that he sexually assaulted ‑‑ raped and stabbed many times Christine Jessop, that you must be of the opinion that he has the psychological make‑up to commit such an offence.
A. No, I am of the opinion that, in fact, the ill