"AT THE FOREFRONT OF THE CASE, AS IT WAS DEVELOPED THROUGH THE EVIDENCE, WERE SIX ISSUES: FIRST, WAS THE DECEASED ASSAULTED? SECOND, DID THE ASSAULT OF THE DECEASED CAUSE HER DEATH? THIRD, WHAT WAS THE TIME OF THE DECEASED'S DEATH? FOURTH, WAS THE APPELLANT THE ASSAILANT? FIFTH, HAD THE DECEASED BEEN SEXUALLY ASSAULTED SHORTLY BEFORE SHE DIED? SIXTH, DID THE APPELLANT SEXUALLY ASSAULT THE DECEASED? THERE WAS NO DIRECT EVIDENCE THAT ANY OFFENCE HAD BEEN COMMITTED, AND NO DIRECT EVIDENCE TO IMPLICATE THE APPELLANT IN THE OFFENCE CHARGED. ALTHOUGH THE APPELLANT HAD BEEN LIVING IN THE HOUSE OCCUPIED BY THE DECEASED AND HER FAMILY FOR ABOUT TWO MONTHS PRIOR TO THE DEATH, AND ALTHOUGH HE HAD BEEN LOOKING AFTER HER AND HER BROTHER ON THE EVENING BEFORE THE DEATH WAS DISCOVERED, THERE WAS NO SUGGESTION THAT THE APPELLANT HAD PREVIOUSLY ABUSED THE DECEASED, SEXUALLY OR OTHERWISE, NOR OF ANY MOTIVE FOR THE COMMISSION OF ANY OFFENCE AGAINST HER."
JUSTICE STEPHEN BORINS; DISSENTING OPINION; THE QUEEN V. WILLIAM MULLINS-JOHNSON;
TORONTO STAR FILE PHOTO: MICHAEL STUPARYK;
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I am publishing this historical dissenting decision in the Mullins-Johnson case as my personal tribute to the late Justice Stephen Borins of the Ontario Court of Appeal; (Released on December 19, 1996; 1996 Ont. C.A. LEXIS 818);
I think it is fair to say that had Steve Borins not written this thorough analysis of the forensic evidence in the case, William Mullins-Johnson might never have been freed from prison on his conviction of first degree murder and exonerated;
(I should also note that Toronto Lawyer Michael Lomer did a magnificent job of representing Mullins-Johnson on the appeal and providing Steve with the ammunition he needed in order to craft his powerful dissent);
Unlike the two majority justices in the Ontario Court of appeal (whose joint decision was barely three pages long), Steve Borins was not content to rule that: "There was complex and conflicting evidence with respect to the cause and time of death. This contradictory evidence of the medical experts was a matter for the jury to consider and there were numerous reasons for the jury to accept the opinions of the Crown's experts (Dr. Charles Smith, for one. HL)) and reject the opinions of the defence experts;"
Instead, (in his 14-page decision) he conducted a detailed analysis of the evidence and focused on the numerous reasons for questioning whether there was any direct evidence to indicate that an actual criminal offence had been committed and any direct evidence to implicate Mullins-Johnson in the offence charged - before striking out the conviction and ordering a new trial;
This historic dissent would ultimately be the torch which pointed to William Mullins-Johnson's innocence and wrongful conviction for what we now know is a crime that never occurred - long after all of his appellate remedies had been exhausted.
About a year or so ago, I attended a benefit for the Association in Defence of the Wrongfully convicted, which had successfully represented William Mullins-Johnson and several other individuals who had been wrongfully convicted as a result of Smith's flawed opinions;
To his enormous credit, Steve Borins showed up as well, to personally meet Bill Mullins-Johnson, the man for who he had ordered a new trial more than ten years earlier;
I watched in awe as the two men stood side by side shaking hands and beaming in the presence of each other's company; Bill Mullins-Johnson (at 6' 3" the giant) and Steve Borins, in my books a judicial giant who will truly be missed; (Photo taken at the time of this memorable meeting: Harold Levy, Steve Borins, and William Mullins-Johnson); Thanks to the Association in Defence of The Wrongly Convicted for this photo);
Here is his historic dissent;
DISSENT: This is an appeal from the appellant's conviction, by a court composed of a judge and jury, on an indictment which alleged that on June 26, 1993, he committed first degree murder on the person of Valin Johnson, who was his four year old niece. I have had the advantage of reading the reasons of my colleagues, Mr. Justice Catzman and Mr. Justice Labrosse. With respect, I have reached a different conclusion.
Although counsel for the appellant raised several grounds of appeal, in my view it is necessary to consider only two grounds - whether the trial judge instructed the jury correctly in respect to the position of the defence and how a jury is to approach a case when the evidence that the defendant committed the crime is wholly, or largely, circumstantial. Because I have reached the conclusion that the appeal should be allowed, and a new trial should take place, I will provide a brief review of the facts sufficient to provide a context in which to discuss these two grounds of appeal.
Valin Johnson lived with her parents, a younger brother and an older sister. The appellant, who is her father's brother, had lived with them for about two months prior to her death. On Saturday, June 26, 1993, Valin's mother bathed her, and her younger brother, before dinner. She noted no injuries or bruises to them. Shortly after 7:00 p.m. her parents left the two children alone with the appellant while they attended a baseball tournament. When Valin's mother returned home about 9:30 p.m., the appellant told her that the two children were in their beds sleeping. She did some laundry, watched television with the appellant, had a shower and went to bed at 11:30 p,m. She did not [*10] check on Valin either when she arrived home, or when she went to bed. About midnight three of the appellant's friends came to the house. They remained in the house until about 1:30 a.m., when all four of them left to look for a party. The appellant returned to the house about 3:00 a.m. After consuming about 10 to 15 beers, Valin's father came home around 2:00 a.m. He did not check on Valin before he went to bed. At about 7:00 a.m. on Sunday, June 27, 1993, Valin's parents found her lying on her bed, apparently dead. They took the dead child downstairs and called for an ambulance.
Dr. Rasaiah began a post-mortem examination on Valin's body at about 1:00 p.m. It was his opinion that she had died as a result of asphyxiation, which was the result of some "external compression" of her airways, either the covering of her mouth, strangulation or compressing her chest, or some combination thereof. It was also his opinion that the child had died between 8:00 p.m. and 10:00 p.m. the previous day. Although Dr. Rasaiah was of the opinion that Valin had been subjected to repeated incidents of past sexual abuse, he found no evidence that she had been recently sexually abused. Dr. Smith and Dr. [*11] Zehr also testified on behalf of the prosecution. Dr. Ferris and Dr. Jaffe testified on behalf of the defence. The evidence was in conflict with respect to the time and cause of Valin's death, and whether she had been sexually assaulted shortly before she died. It was the position of the Crown that the appellant had caused Valin's death while sexually assaulting her, or attempting to sexually assault her.
Counsel for the appellant submitted that the appeal should be allowed, and a new trial ordered, on the grounds the trial judge failed to expressly inform the jury of the position of the appellant, and the evidence, or absence of evidence, which the jury could consider in assessing the position of the appellant, and to correctly instruct the jury how to approach a case where the evidence that the defendant committed the crime is wholly, or largely, circumstantial.
To properly appreciate these grounds of appeal, it is helpful to review the closing submission to the jury made by the appellant's counsel, who was not the counsel that argued the appeal, and the trial judge's instructions to the jury.
My review of defence counsel's closing submission to the jury has identified the following issues which they were invited to consider as raising a reasonable doubt in respect to the appellant's guilt:
(1) The appellant denied that he killed the deceased.
(2) There was no direct evidence that the appellant killed the deceased.
(3) The circumstantial evidence that the appellant killed the deceased did not prove his guilt beyond a reasonable doubt.
(4) When considered together with the evidence of the other expert witnesses, Dr. Rasaiah's evidence that the time of death was between 8:00 p.m. and 10:00 p.m. was unreliable.
(5) A neighbour, Mr. Dolynchuck, testified that he saw the deceased alive at about 11:30 p.m.
(6) Because the expert witnesses had differing opinions of the cause of death, it had not been proved beyond a reasonable doubt that the deceased was killed.
(7) If it was proved that the deceased was killed, there was no evidence that the perpetrator had the intent to kill her.
(8) If the evidence of Dr. Rasaiah of the time of death was not accepted, then the appellant did not have the exclusive opportunity to kill the deceased, as there were other people in the home who had the opportunity to do so before the discovery of her death at about 7:00 a.m.
(9) There was evidence that the deceased's father, Paul Johnson, had a disposition to be violent, particularly when drunk, which he was when he came home about 2:00 a.m.
(10) There was no reliable evidence that the deceased had been recently sexually assaulted. Of the five experts who testified, only Dr. Smith, whose opinion was based on photographs of the victim, thought he saw evidence of recent anal penetration. On the other hand, Dr. Rasaiah, who performed the autopsy, and Dr. Zehr, who was present during the autopsy and examined the victim, observed no evidence of a recent sexual assault. Because the position of the Crown was that the offence was first degree murder as a result of the death having occurred during the commission, or attempted commission of a sexual assault, there was reasonable doubt that the appellant was guilty of first degree murder.
(11) Dr. Rasaiah and Dr. Zehr were of the opinion that the deceased was the victim of chronic sexual abuse. However, there was no evidence who was responsible for the chronic sexual abuse, or how long it had continued. The appellant had lived in the home for about two months prior to the death. It followed that the jury could not infer from the presence of chronic sexual abuse that the appellant was the abuser, and, therefore, that he had killed her in the course of a sexual assault.
(12) There was no forensic evidence connecting the appellant to the deceased. Although tests were conducted, there was no evidence that any bodily substance of the appellant was on, or in, the body of the deceased despite the fact that semen was located on the inside of the underwear and track pants that he was wearing at the relevant time.
Thus, in my view, it was clear from defence counsel's closing argument to the jury that there was more than a bare denial of guilt by the appellant. There was evidence, or the absence of evidence, in respect to a number of vital issues, which were capable of supporting his denial, and, therefore were capable of raising a reasonable doubt as to his guilt.
The trial judge's instructions to the jury occupy almost 90 double-spaced pages of the transcript. On a number of occasions the trial judge repeated that the basis of the charge of first degree murder was that the appellant caused the death of the deceased while committing, or attempting to commit a sexual assault. However, nowhere did he state the position of the defence, and relate the evidence, or absence of evidence, to that position. Nor did the trial judge state the position of the prosecution and relate the evidence which supported it. In light of the submission of counsel for the respondent that the instructions, when read as a whole, adequately presented the defence, and the evidence which supported it, it is necessary to review the trial judge's instructions.
(1) The first part of the instructions covered general principles including a definition of direct and circumstantial evidence. The trial judge told the jury: "Whether you base your findings of fact on direct evidence, circumstantial evidence, or a combination of both, you will not make a finding of guilt unless on the totality of the evidence [sic] that you find credible proves the guilt of the accused beyond a reasonable doubt." Immediately prior to this instruction, the trial judge had defined proof beyond a reasonable doubt. I note, however, that the trial judge did not instruct the jury that the case against the appellant was based virtually entirely on circumstantial evidence, as well as on the opinions of expert witnesses, although he instructed the jury on how it was to consider the testimony of an expert witness. However, neither in this portion of his instructions, nor subsequently, did the trial judge relate his general instructions on circumstantial evidence to the circumstantial evidence on which the Crown relied. (Pages 841-858 of the transcript).
(2) He then told the jury that the possible verdicts available to them were not guilty, guilty as charged, guilty of the included offence of second degree murder or guilty of manslaughter. (I observe that neither the Crown, nor the defence, ever suggested that the appellant ought to be convicted of either of the included offences.) The trial judge then explained the elements of the three offences. In doing so, he told the jury that the Crown's position was that the appellant had committed "an assault", and went on to say that first degree murder is committed "when the death is caused ... while committing or attempting to commit a sexual assault". He spent a good deal of time defining sexual assault, and emphasized that if the jury found that the victim had been sexually assaulted, they must then go on to find that the appellant caused the death of the deceased while committing, or attempting to commit, a sexual assault before they could convict him of first degree murder. Although, in my view, a jury of lay persons would likely find the trial judge's explanation of the possible verdicts confusing, no issue was raised by the appellant concerning this part of the instructions. (Pages 858-872).
(3) The trial judge then reviewed the evidence of the background of the family unit, the layout of the house where the family and the appellant lived and the events of June 26 and 27, 1993, leading up to the discovery of the body of the deceased. In doing so he reviewed the testimony of the parents of the deceased, and the testimony of the appellant, in which he explained what he did during the evening and night in question, and denied any role in causing the death. He also referred to evidence that the deceased's father had assaulted her mother and that he was "capable ... of violence when he drinks". (Pages 873-888).
(4) The trial judge began the next part of his instructions by telling the jury: "Obviously, one of the issues that you will have to seriously consider in this case is the time of death". He referred to the evidence of the deceased's parents that they last saw her alive at 7:00 or 7:30 p.m., of the appellant who said she went to sleep at about 7:30 p.m. and that he saw her, apparently asleep in her bed, about 8:30 p.m., and the evidence of Mr. Dolynchuck who claimed that he saw her alive about 11:30 p.m. He reviewed the conflicting opinions as to the time of death offered by Doctors Rasaiah and Smith for the Crown, and Doctors Jaffe and Ferris for the defence. Dr. Rasaiah performed an autopsy on the deceased at about 1:00 p.m. Dr. Rasaiah estimated the time of death to be between 8:00 p.m. and 10:00 p.m. the previous day, during part of which time the appellant was alone with the deceased. Depending on how one interprets Dr. Smith's evidence, the time of death was either 8-10 hours prior to the discovery of the body, or 8-10 hours prior to the autopsy - either between 8:00 p.m. and midnight, or 1:00 a.m. and 5:00 a.m. He concluded this portion of his charge by saying that the "time of death is of importance when you come to consider whether the accused had the opportunity to commit the offence as charged, or any of the included offences". (Pages 888-902).
(5) The trial judge commenced the next part of his charge by stating: "This is not a case where the cause of death is clear and obvious." He then reviewed the conflicting evidence of the four doctors to whom I have referred, which included Dr. Rasaiah's opinion that death was caused by a mechanical obstruction to the nose or mouth, or neck or upper chest, causing a lack of oxygen to the lungs, and Dr. Smith's opinion that the deceased died of asphyxia. (Pages 903-910).
(6) Next, he discussed opportunity. He told the members of the jury they must consider whether the appellant had the opportunity to be the perpetrator. Using the language of Hodges Case (1838), 2 Lew. C.C. 227, 168 E.R. 1136, the trial judge said: "Where the evidence of the identity of the killer is made up of circumstantial evidence, you must be satisfied not only that the circumstances are consistent with his having committed the act but you must also be satisfied that the facts are such as to be inconsistent with any other reasonable conclusion than that the accused is the guilty person." In light of the decision in R. V. Cooper (1977), 34 C.C.C. (2d) 18 (S.C.C.), rejecting the Hodge formula as an inexorable rule of law in Canada, it is doubtful that this instruction [*20] was necessary and, as I will discuss below, may have confused the jury. However, he did not repeat, as he had stated in the first part of his charge, that where a case is based on circumstantial evidence, before the jury could convict they must be satisfied beyond a reasonable doubt, that the appellant was guilty. Nor did he relate to the instruction in respect to Hodge's case, or his earlier instruction on circumstantial evidence, the evidence which was capable of constituting circumstantial evidence. In the Cooper case, speaking for the majority, Ritchie J. stated at 33: "This is not to say that, even where the issue is one of identification, the exact words used by Baron Alderson [in Hodge's Case] must necessarily be incorporated in a Judge's charge. It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts." (Pages 910-911).
(7) The trial judge then gave the usual instructions about motive. Although there was no evidence of motive, he told the jury that "whether there is evidence of motive in this case and what use you put to its presence or absence is for you to say". (Pages 911-912).
(8) Then he told the jury that if they determine that the deceased was killed, "then the matter of the identity of the killer is clearly in issue". He concluded this portion of the charge by instructing the jury that "in the end if you are unable to say whether [the accused] or someone else killed [the deceased] you must acquit the accused". I am troubled by this instruction because it appears to suggest that it is not sufficient to acquit the appellant if the jury is unable to conclude that he was the killer - to acquit him they must also be unable to say that it was another person 'that killed her. (Pages 912-913).
(9) The trial judge returned to the included offence of second degree murder and stressed the need to find that the appellant intended to kill the deceased, or meant to cause her bodily harm, which he knew was likely to cause death, and was reckless whether death ensued or not, before he could be convicted of that offence. He then stressed that second degree murder becomes first degree murder "if the Crown proves beyond a reasonable doubt that the accused caused Valin Johnson's death while committing or attempting to commit sexual assault". (Pages 913-915).
(10) He then returned to the need to prove that the appellant caused the death of the deceased while committing, or attempting to commit, a sexual assault before he could be found guilty as charged. In my assessment of his charge, the trial judge appeared to be concerned whether there was convincing evidence of a sexual assault. He reviewed the conflicting evidence of the five doctors who testified about this issue. He reviewed the evidence of Dr. Rasaiah, who performed the autopsy, and Dr. Zehr, an obstetrician and gynecologist and a consulting physician at the Sexual Assault Care Centre, who attended the autopsy at Dr. Rasaiah's request. Neither Dr. Rasaiah, nor Dr. Zehr, found any evidence of a recent sexual assault, although Dr. Rasaiah found a bruise on the right thigh and another on the left thigh. It was Dr. Zehr's evidence that the deceased had been sexually assaulted chronically over a period of time. Only Dr. Smith expressed the opinion that the deceased had been sodomized within 45 minutes of her death. He based this opinion on what he believed to be a fresh laceration of the anal cavity which he stated he saw in a photograph of the deceased, and on Dr. Rasaiah's's post mortem report. The trial judge concluded his review of the evidence of sexual assault by reminding the jury that it was for them to determine on all the evidence whether the appellant caused Valin Johnson's death while committing, or attempting to commit, a sexual assault. (Pages 915-919).
(11) The next part of the instructions consisted of the standard charge on provocation, even though there had been no evidence of provocation. This instruction was not required, and could have deflected the jury from considering the real issues in the case. (Pages 919-921 ).
(12) Once again the trial judge reviewed the possible verdicts available to the jury by explaining what the Crown had to prove to obtain a conviction. He began with second degree murder, proceeded to first degree murder and concluded with manslaughter. He once more stressed that the Crown had to prove that the appellant had sexually assaulted the deceased before he could be convicted of first degree murder. (Pages 921-923).
(13) Finally, the trial judge provided the jury with standard concluding instructions. (Pages 923928)
In assessing the adequacy of a trial judge's instructions to a jury, an appellate court should be guided by three considerations. See Granger, Charron & Chumak, Canadian Criminal Jury Trials (1989, Carswell) 250-252. First, the trial judge must provide sufficient assistance to the jury to enable it to perform its duties in an informed and judicial manner. This requires, inter alia, that the trial judge must explain the respective positions of the prosecution and the defence. Second, it is "the general sense which the words used must have conveyed ... to the mind of the jury" which matters when an appellate court assesses the adequacy of a charge, and "not whether a particular formula was recited by the judge": Linney v. The Queen, [1978] 1 S.C.R. 646 at 650, per Dickson J. As Dickson J. said in Smithers v. The Queen (1977), 34 C.C.C. (2d) 427 at 432 (S.C.C.):
Opinions may differ as to the sequence to be followed by a trial judge in covering the many matters which must be covered in the course of any jury charge. There is no hard and fast rule in this regard, so long as the jury members know what it is they are called upon to decide and that, generally speaking, though not invariably, they receive guidance in relating the evidence to the issues.
Third, in determining the general sense which the words used have likely conveyed to the jury, the appellate court should consider the whole of the charge. See e.g., Stavroff v. The Queen, [1980] 1 S.C.R. 41 1 at 417 per Mcintyre J.
Three cases decided by the Supreme Court of Canada in a period of five months in 1952 and 1953 are generally cited in support of the proposition that a trial judge should advise the jury of the positions of the Crown and the defence, and relate the evidence to the respective positions. In Azoulay v. The Queen (1952), 104 C.C.C. 97 at 98-99, on behalf of a majority of the Supreme Court of Canada, Taschereau J. stated:
On the second point, I agree with the Chief Justice of the Court of King's Bench. The rule which has been laid down, and consistently followed is that in a jury trial the presiding Judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them: Spencer v. Alaska Packers Ass'n (1904), 35 S.C.R. 362. As Kellock J.A. (as he then was) said in R. v. Stephen, [1944] 3 D.L.R. 656 at p. 665, O.R. 339 at p. 352, 81 Can. C.C. 283 at 293: "It is not sufficient that the whole evidence be left to the jury in hulk for valuation." The pivotal questions upon which the defence stands must be clearly presented to the jury's mind. (Emphasis in the original.)
In Wu v. The King, [1934] 4 D.L.R. 459 at p. 464, S.C.R. 609 at p. 616, 62 Can. C.C. 90 at p. 96, Lamont J. speaking for this Court expressed his views as follows: "There is no doubt that in the trial Court an accused person is ordinarily entitled to rely upon all alternative defences for which a foundation of fact appears in the record, and, in my opinion, it makes no difference whether the evidence which forms that foundation has been given by the witnesses for the Crown or for the accused, or otherwise. What is essential is, that the record contains evidence which, if accepted by the jury, would constitute a valid defence to the charge laid. Where such evidence appears it is the duty of the trial Judge to call the attention of the jury to that evidence and instruct them in reference thereto." (Emphasis in the original.)
In Kelsey v. The Queen (1953), 105 C.C.C. 97 at 103, on behalf of a majority of the Supreme Court of Canada, Fauteux J. stated:
In law, the general rule as again stated recently in Azoulay v. The Queen, 104 Can. C.C. 97, [1952] 2 S.C.R. 495, is that the trial Judge in the course of his charge should review the substantial part of the evidence and give the jury the theory of the defence so that they may appreciate the value and effect of that evidence and how the law is to be applied to the facts as they find them. It is, of course, unnecessary that the jury's attention be directed to all of the evidence, and how far a trial Judge should go in discussing it must depend in each case upon the nature and character of the evidence in relation to the charge, the issues raised and the conduct of the trial. In the words of Goddard L.C.J. in Clayton-Wright (1948), 33 Cr. App. R. 22 at p. 29: "The duty of the Judge ... is adequately and properly performed ... if he puts before the jury clearly and fairly the contentions on either side, omitting nothing from his charge, so far as the defence is concerned, of the real matters upon which the defence is based. He must give ... a fair picture of the defence, but that does not mean to say that he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given by experts or anyone else."
This requires, inter alia, that the trial judge must explain the respective positions of the prosecution and the defence. Second, it is "the general sense which the words used must have conveyed ... to the mind of the jury" which matters when an appellate court assesses the adequacy of a charge, and "not whether a particular formula was recited by the judge": Linney v. The Queen, [1978] 1 S.C.R. 646 at 650, per Dickson J. As Dickson J. said in Smithers v. The Queen (1977), 34 C.C.C. (2d) 427 at 432 (S.C.C.):
Opinions may differ as to the sequence to be followed by a trial judge in covering the many matters which must be covered in the course of any jury charge. There is no hard and fast rule in this regard, so long as the jury members know what it is they are called upon to decide and that, generally speaking, though not invariably, they receive guidance in relating the evidence to the issues.
Third, in determining the general sense which the words used have likely conveyed to the jury, the appellate court should consider the whole of the charge. See e.g., Stavroff v. The Queen, [1980] 1 S.C.R. 411 at 417 per Mcintyre J.
Three cases decided by the Supreme Court of Canada in a period of five months in 1952 and 1953 are generally cited in support of the proposition that a trial judge should advise the jury of the positions of the Crown and the defence, and relate the evidence to the respective positions. In Azoulay v. The Queen (1952), 104 C.C.C. 97 at 98-99, on behalf of a majority of the Supreme Court of Canada, Taschereau J. stated:
On the second point, I agree with the Chief Justice of the Court of King's Bench. The rule which has been laid down, and consistently followed is that in a jury trial the presiding Judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them: Spencer v. Alaska Packers Ass'n (1904), 35 S.C.R. 362. As Kellock J.A. (as he then was) said in R. v. Stephen, [1944] 3 D.L.R. 656 at p. 665, O.R. 339 at p. 352, 81 Can. C.C. 283 at 293: "It is not sufficient that the whole evidence be left to the jury in bulk for valuation." The pivotal questions upon which the defence stands must be clearly presented to the jury's mind. (Emphasis in the original.)
In Wu v. The King, [1934] 4 D.L.R. 459 at p. 464, S.C.R. 609 at p. 616, 62 Can. C.C. 90 at p. 96, Lamont J. speaking for this Court expressed his views as follows: "There is no doubt that in the trial Court an accused person is ordinarily entitled to rely upon all alternative defences for which a foundation of fact appears in the record, and, in my opinion, it makes no difference whether the evidence which forms that foundation has been given by the witnesses for the Crown or for the accused, or otherwise. What is essential is, that the record contains evidence which, if accepted by the jury, would constitute a valid defence to the charge laid. Where such evidence appears it is the duty of the trial Judge to call the attention of the jury to that evidence and instruct them in reference thereto." (Emphasis in the original.)
In Kelsey v. The Queen (1953), 105 C.C.C. 97 at 103, on behalf of a majority of the Supreme Court of Canada, Fauteux J. stated:
In law, the general rule as again stated recently in Azoulay v. The Queen, 104 Can. C.C. 97, [1952] 2 S.C.R. 495, is that the trial Judge in the course of his charge should review the substantial part of the evidence and give the jury the theory of the defence so that they may appreciate the value and effect of that evidence and how the law is to be applied to the facts as they find them. It is, of course, unnecessary that the jury's attention be directed to all of the evidence, and how far a trial Judge should go in discussing it must depend in each case upon the nature and character of the evidence in relation to the charge, the issues raised and the conduct of the trial. In the words of Goddard L.C.J. in Clayton-Wright (1948), 33 Cr. App. R. 22 at p. 29: "The duty of the Judge ... is adequately and properly performed ... if he puts before the jury clearly and fairly the contentions on either side, omitting nothing from his charge, so far as the defence is concerned, of the real matters upon which the defence is based. He must give ... a fair picture of the defence, but that does not mean to say that he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given by experts or anyone else."
The rule is simple and implements the fundamental principle that an accused is entitled to a fair trial, to make a full answer and defence to the charge, and to these ends, the jury must be adequately instructed as to what his defence is by the trial Judge. Whether the rule has in any given case been complied with may at times be difficult to determine. (Emphasis in the first paragraph in the original; emphasis in the second paragraph added.)
In the third case, Lizotte v. The Queen (1953), 106 C.C.C. 1 at 4 Taschereau J., writing on behalf of the Supreme Court of Canada stated:
... No doubt, it is not imperative that the Judge describe in detail each and every one of the circumstances that surrounded a crime, but still it is necessary that he place before the jury all that is revealed by the witnesses, either for the Crown or for the defence, which could be a serious ground for exculpating the accused: Azoulay v. The Queen, 104 Can. C.C. 97, [1952] 2 S.C.R. 495; Kelsey v. The Queen, 105 Can. C.C. 97 [1953] 1 S.C.R. 220. See Lord Goddard C.J. in R. v. Clayton-Wright (1948), 33 Cr. App. R. 22 at p. 29.
In a subsequent case, Colpitts v. The Queen (1965), 52 D.L.R. (2d) 416, the Supreme Court of Canada considered whether the trial judge had failed to fairly put to the jury the defence of the accused, who had been convicted of capital murder in the slaying of a prison guard. The morning after the murder, he made a complete confession. In the presence of the jury, defence counsel told the trial judge that the accused was to testify because he had decided to do so against his counsel's better judgment and advice. In his testimony, the accused admitted his statements were voluntary, but swore they were false, explaining that they were made to protect a friend and that he was now prepared to testify that they were false because his friend had given evidence against him.
After quoting the relevant portions of the charge to the jury, Spence J. stated at 425: "To summarize the above, the learned trial judge put it as the theory of the appellant that he had made a false confession, and never mentioned the reason which the appellant gave in his evidence for having done so, a reason to which the appellant held fast through a vigorous cross-examination." He continued at 426:
As I have pointed out above, the learned trial Judge in his charge gave to the jury two conclusions suggesting that they choose the more logical, and one of them was framed in the words "and that after two months of deliberation he would have concocted the story that he insisted on telling you yesterday". I am of the opinion that that portion of the charge, when considered in the light of the remarks of the then counsel for the appellant which I have quoted, could only suggest, and strongly suggest, to the jury that they could place no reliance upon the evidence given by the appellant in his defence. Moreover, the learned trial Judge failed to discuss any of the evidence adduced by the Crown which might be related to that defence. As Limerick, J., in his reasons has referred to the many instances of evidence which are related to the theory of the defence, I need not repeat them. None of these instances were discussed in that light in the charge of the learned trial Judge.
It is trite law that it is the duty of the trial Judge to outline to the jury the theory of the defence and that even in cases where the accused person does not give evidence on his own behalf: Kelsey v. The Queen, 105 C.C.C. 97, 16 C.R. 119, [1953] 1 S.C.R. 220, where it was held that the trial Judge had done so: R. v. Clayton-Wright (1948), 33 Cr. App. R. 22, per Goddard, L.C.J., at p. 29.
Recent decisions in this Court and elsewhere have also emphasized the duty of the trial Judge in his charge to go further and to not only outline the theory of the defence but to give to the jury matters of evidence essential in arriving at a just conclusion in reference to that defence. (Emphasis in the original.)
Spence J. then referred to passages from the reasons for judgment of Cartwright J. in Lizotte v. The King (1950), 99 C.C.C. 113 at 129, Taschereau J. in Azoulay v. The Queen, supra at 98, Taschereau J. in Lizotte v. The Queen, supra at 3-4 and Davis J. in Markadonis v. The King (1935), 64 C.C.C. 41 at 45. He also referred to a passage from the reasons for judgment of Pickup C.J.O. in R. v. Hladiy (1952), 104 C.C.C. 235 at 240 (Ont. C.A.). Spence J. concluded, as follows, at 427-8:
In the light of these authorities, I agree with the contention of counsel for the appellant that the charge by the learned trial Judge, in its failure to state the theory of the defence, and particularly in the partial statement of it accompanied by the inferential disbelief of it and not accompanied by any reference to evidence which bore upon it, was a failure to properly instruct the jury and was prejudicial to the accused.
R. v. Dwyer (1977), 35 C.C.C. (2d) 400, was a decision of this court following the appellant's conviction by judge and jury on a charge of theft. The trial was not lengthy, the evidence being completed in less than two days. The charge to the jury was brief. The trial judge described the case as "a simple charge of stealing". Arnup J.A. described the charge as follows at 403:
He told the jury that in view of the uncomplicated nature of the case, which had just been fully discussed by both counsel, he did not plan to discuss the facts, and he repeated this later on, while telling the jury that they were to keep in mind the respective theories of the Crown and the defence. He told them how they should set about assessing credibility. He charged them in unobjectionable terms about reasonable doubt, and the way in which to approach a case resting upon circumstantial evidence. He concluded by telling the jury that if they had trouble with their recollection of the evidence, they were to feel free to ask him for clarification and he would have the Reporter read the relevant portions of the evidence.
Before the Court of Appeal it was contended that the trial judge had committed a reversible error by failing to tell the jury the position of the defence and relate the evidence relative to the defence. With respect to this issue, Arnup J.A. stated at 406-7:
In my view an objection of more substance is the complaint made with respect to the charge to the jury, particularly that the trial Judge failed to put to the jury the theory of the defence, and failed to tell the jury what the evidence was that related to the issues raised by the conflicting theories of the Crown and the defence. Detailed reference was made to R. v. John (1970), 2 C.C.C. (2d) [*34] 157, 15 D.L.R. (3d) 692, [1971] S.C.R. 781; Colpitts v. The Queen, [1966] 1 C.C.C. 146, 52 D.L.R. (2d) 416, [1965] S.C.R. 739; Azoulay v. The Queen (1952), 104 C.C.C. 97, [1952] 2 S.C.R. 495, 15 C.R. 181; R. v. Cipolla, [1966] 1 C.C.C. 179, [1965] 2 OR. 673, 46 C.R. 78; affirmed [1966] 1 C.C.C. at p. 205, [1965] S.C.R. v, 46 C.R. 197; R. v. West (1925), 44 C.C.C. 109, 57 O.L.R. 446; R. v. Armstrong (1973), 12 C.C.C. (2d) 113; R. v. Ducsharm (1955), 113 C.C.C. 1, 1 D.L.R. (2d)732, [1955] O.R. 824. Probably the leading case on failure to put the theory of the defence to the jury is Colpitts. There, Spence J., at p. 157 C.C.C., p. 752 S.C.R., said:
It is trite law that it is the duty of the trial Judge to outline to the jury the theory of the defence and ... to give to the jury matters of evidence essential in arriving at a just conclusion in reference to that defence.
He refers to Lizotte v. The King (1950), 99 C.C.C. 113, [1951] 2 D.L.R. 754, [1951] S.C.R. 115, and to Azoulay, supra. It is to be observed that the rule as laid down in Azoulay by Justice Taschereau is in these terms [at p. 98]:
The rule which has been laid down,and consistently followed is that in a jury trial the presiding Judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them. (Emphasis added.) See also Cipolla, supra, at pp. 188-9 C.C.C.p. 681 O.R., quoting R. v. Attfield, [1961] 3 All E.R. 243 at p. 246.
I have.no doubt that even in a case as uncomplicated at [sic] this one, it would have been preferable for the trial Judge to have stated the respective theories of the Crown and of the defence, even though the theory of the defence, in language I used during the argument, was simply: "I didn't do it, and I don't know who did." The defence was not, as it was in Ducsharms, supra, that the crime had occurred at some different time from that alleged by the Crown and for that time the accused had an alibi, and therefore could not have committed the crime. Mr. Manning put it to us that the theory of the defence was not as simple as I expressed it, but included also the broad proposition that the Crown had failed to prove its case.
In my view this was one of those unusual cases where the issue was so clear-cut, and the facts so relatively simple, that the trial Judge was justified in exercising his discretion not to repeat to the jury, in one speech, the facts that had just been put to them in what he thought was an entirely satisfactory way, in two speeches, by counsel for the respective sides. ... .
The cases which I listed at the beginning of this portion of these reasons cannot all be reconciled, with respect to all of the statements in them. The general rule is plain; it was not followed in this case. But the rule is not absolute; the cases show there can be exceptions, infrequent though they may be.
On the basis of the authorities to which I have referred, in my view, it is the duty of the trial judge in instructing the jury to explain the position of the defence, and to provide the jury with the evidence essential in arriving at a just conclusion in respect to the defence. It is only in rare cases, where the facts and issues are simple and the trial has been brief, and where it would be needless to do so, that failure to comply with this duty will not constitute a reversible error. There is not necessarily a rigid formula to be followed in explaining the position of the defence, and the evidence capable of supporting it. What is important is that on a consideration of the charge as a whole, the appellate court is satisfied that the jury must have understood the position of the defence and received proper guidance in relating the evidence to the issue, or issues, which constitute the defence position.
On my review of the submissions to the jury by counsel for the appellant and the instructions of the trial judge, I am not satisfied that the trial judge fairly placed before the jury the position of the defence. Nor am I satisfied that this is one of those rare cases, such as R. v. Dwyer, supra, where it was unnecessary to do so. Unlike the Dwyer case, I do not regard this as "one of those unusual cases where the issue was so clear-cut, and the facts so relatively simple" that the trial judge was justified in departing from the usual practice.
Having regard to the serious charge which the appellant faced, that the case against the appellant was based almost entirely on circumstantial evidence, that there were differences in the opinions expressed by the expert witnesses about the time of death, the cause of death and whether the deceased had been sexually assaulted shortly before she died, it was not sufficient to charge the jury as he did by focusing on these three issues and reviewing the evidence relating to them. On several occasions he told the jury that the case for the Crown was that the appellant had caused the death of the deceased while sexually assaulting her, or attempting to do so. Nowhere did he specifically refer to the case for the defence, which was that the appellant denied either sexually assaulting, or killing, her, and that there was reasonable doubt concerning the time of death, the cause of death, and the commission of a sexual assault. Although the trial judge reviewed the appellant's evidence, he did not, in a systematic way relate to the jury evidence which, if not rejected, was capable of raising a reasonable doubt in regard to when the death occurred, its cause, or whether the deceased had been the victim of a recent sexual assault. As well, the trial judge omitted to mention, let alone relate to the appellant's defence, any reference to the forensic evidence which did not connect the appellant to having sexually assaulted the deceased.
At the forefront of the case, as it was developed through the evidence, were six issues: First, was the deceased assaulted? Second, did the assault of the deceased cause her death? Third, what was the time of the deceased's death? Fourth, was the appellant the assailant? Fifth, had the deceased been sexually assaulted shortly before she died? Sixth, did the appellant sexually assault the deceased? There was no direct evidence that any offence had been committed, and no direct evidence to implicate the appellant in the offence charged. Although the appellant had been living in the house occupied by the deceased and her family for about two months prior to the death, and although he had been looking after her and her brother on the evening before the death was discovered, there was no suggestion that the appellant had previously abused the deceased, sexually or otherwise, nor of any motive for the commission of any offence against her.
About two-thirds of the way through his charge, while discussing "identity" and whether the accused was the assailant, the trial judge gave the jury an instruction based on Hodge's Case, which I have set out in paragraph (6) of my review of his instructions. Very close to the beginning of his instructions, he explained the difference between direct and circumstantial evidence, and then, in the language quoted in paragraph (1) of my review, he instructed the jury that it could not find the accused guilty "unless on the totality of the evidence that you find credible proves the guilt of the accused beyond a reasonable doubt". The instruction based on Hodge's Case, related, as it was, expressly to the identity of the assailant, suggests a lower burden of proof upon the Crown in respect to this vital issue, than proof beyond a reasonable doubt. While it is true that very early in his instructions the trial judge appeared to say that the burden of proof beyond a reasonable doubt applied to both direct and circumstantial evidence, his failure to remind the jury after giving them the Hodge's Case instruction only in respect to the issue of identity, and to incorporate the instructions recommended by Ritchie J. in the Cooper case, supra, which are quoted in paragraph 6 of my review, may have confused the jury, and led them to conclude that the Crown had a lower burden of proof in respect to this central issue. In other words, the concurrent use of the Hodge formula in respect to the identity of the killer quite late in the charge and the traditional formula of the burden of proof very early in the trial judge's instructions, as well as his failure to relate his instructions on circumstantial evidence to the circumstantial evidence on which the Crown relied, created the danger of confusing the jury.
Although the trial judge, in charging the jury on the issues which he saw as important, reviewed the evidence relating to each issue, in my view there is a difference between reviewing evidence which is conflicting, and specifically directing the jury's attention to evidence capable of raising a reasonable doubt in respect to the important issues of time and cause of death and whether a sexual assault had been committed. I feel that it is important to recognize that this was a case of first degree murder and, as counsel for the Crown acknowledged, the case for the Crown was not overwhelming. There was evidence upon which the jury could convict or acquit the appellant of first degree murder if it accepted Dr. Rasaiah's opinion that the death occurred between 8:00 p.m. and 10:00 p.m. and Dr. Smith's evidence of recent sodomy, and rejected the evidence of the other witnesses on these issues, or if the evidence of the other witnesses did not raise a reasonable doubt. However, in my view, the evidence of whether the appellant, or anybody, had sexually assaulted the deceased, or had attempted to do so, was weak.
If the jury had concluded that there was no evidence of sexual assault, the evidence of death having been caused by a compression injury could have resulted in the appellant's conviction for second degree murder. However, in my view the evidence of the requisite state of mind was also weak, such that a verdict of guilty of manslaughter was clearly open to the jury, if it was satisfied that the appellant was responsible for the compression injury which was the probable cause of death. This analysis illustrates that this was far from a simple case and underscores the need for a careful and fair charge to the jury in which it was informed of the appellant's defence and the evidence which was available to the jury to consider in relation to the defence. I have taken into consideration, as well, my reading of the charge which suggests doubt in the mind of the trial judge whether the Crown had proved a case of first degree murder, or even second degree murder.
In my view, on a reading of the instructions as a whole, the trial judge did not give a fair picture of the defence. From my review of the defence counsel's closing address to the jury, he raised twelve issues which were capable of raising a reasonable doubt. Although the trial judge did not have to repeat all of the evidence or comment on every argument raised by defence counsel, in assuring the appellant of a fair trial, he should have adequately instructed the jury concerning the appellant's defence. As this court said in the Dwyer case, supra, quoting the words of Spence J. in the Colpitts case, supra:
It is trite law that it is the duty of the trial Judge to outline to the jury the theory of the defence and ... to give to the jury matters of evidence essential in arriving at a just conclusion in reference to that defence.
It was-conceded by counsel for the appellant that defence counsel did not object to the failure of the trial judge to put the position of the defence to the jury and to instruct the jury on the use of circumstantial evidence. I do not see that there was any tactical advantage to the appellant in the failure of defence counsel to object to these omissions in the instructions of the trial judge. In R. v. Chambers (1990), 59 C.C.C. (3d) 321 (S.C.C.), Cory J. stated at 344:
Defence counsel failed to object to the omission. Such a failure to object can properly be taken into account in assessing the gravity of the omission and the consequences that should be attached to it. However, such a failure can never be solely determinative of the issue, and should not be a bar to directing a new trial in a case such as this where a significant injustice has been occasioned. A new trial should be ordered in this case.
In the circumstances of this case, I do not believe that the failure of defence counsel to object to these omissions should be considered as being determinative of the appeal through the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code. The trial counsel's position could hardly be called a tactical decision to benefit his client. The Crown's case against the appellant was not overwhelming. Thus, a properly instructed jury could have reached a different conclusion. See R. v. Hill (1995), 102 C.C.C. (3d) 469 (Ont. C.A.), at 479-80, per Laskin J.A.
Accordingly, I would allow the appeal, set aside the conviction and order that a new trial be held.
Harold Levy...hlevy15@gmail,com;
