Beyond a Reasonable Doubt (Standard)

R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742

The learned trial judge charged the jury on the issue of the credibility of witnesses generally in the following terms:

In deciding what the facts are in this case you will be the sole judges of the truthfulness of the witnesses and of the weight to be given to the testimony of each of them. In deciding whether a witness is worthy of belief you should bring your own common everyday experience to such matters. Simply, in effect, exercise your good common sense. I tell you that you are entitled to believe all of the evidence given by a witness, part of that evidence or none of it. In determining whether to believe that witness you should consider such things as his or her ability and opportunity to observe his appearance or her appearance in the manner while testifying before you, his or her power of recollection, any interest, bias or prejudice that he or she may have, any inconsistencies in the testimony and the reasonableness of that testimony ought to be considered by you when considering the light of all of the evidence in the case. You are not obliged to accept any part of the evidence of a witness just because there has been no denial of it.

Shortly thereafter, he dealt with the status of the accused as a witness as follows:

In this case the accused himself gave evidence. He is in exactly the same position as any other witness as to credibility.

Immediately thereafter, however, the trial judge stated:

Shortly I will instruct you as to how to weigh that testimony and I have already given the general direction in terms of how in fact one would view evidence as to credibility, but for the present let me tell you that if you believe the accused and he did not commit the offence or what he did lacks some essential element of the offence or if the evidence of the accused either standing alone or taken together with all of the other evidence leaves you in a state of reasonable doubt you must acquit him, but if upon consideration of all of the evidence, the arguments of counsel and my charge you are satisfied that the accused has been proven guilty beyond a reasonable doubt as I have defined those words to you, it is your duty to convict the accused.

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Disposition

The main charge was correct and fair. The recharge given within ten minutes of the main charge reminded the jury of the duties imposed upon them in the main charge. In all the circumstances of this case, despite the error in the recharge, the charge read as a whole adequately instructed the jury that if they had a reasonable doubt as to the guilt of the accused, they must acquit. In the result, I would dismiss the appeal.

R. v. Bisson, 1998 CanLII 810 (SCC), [1998] 1 SCR 306

3 At the outset it is important to remember that the directions in this case and the consideration of them by the Court of Appeal took place before the release of the decision of this Court in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. The trial judge instructed the jury that although the phrase “beyond a reasonable doubt” can cause considerable debate and confusion, it was really a very simple concept. He stated that, while total, absolute, perfect certainty does not exist, certainty beyond a reasonable doubt is that which is closest to this ideal. He described it as a real doubt, an honest doubt held by a reasonable person. He then explained, however, that a reasonable doubt is a or that degree of certainty which one uses every day in important activities. He put it in this way:

[TRANSLATION] What is reasonable doubt? I will not hide from you the fact that it is a legal concept which has provoked much debate, which has engendered much discussion, both on the part of counsel and on the part of judges, and which is the source of confusion that is sometimes quite unnecessary. You will see that it is something very simple.

The expression reasonable doubt is in a sense a way of describing a degree of certainty. First, you should note, and obviously accept, the fact that total, absolute, perfect certainty that someone is guilty of something, does not exist. Just as in most situations in our everyday life, total, perfect, complete certainty does not exist, the closest that one can get to this ideal state of certainty is precisely certainty beyond a reasonable doubt.

What then is a reasonable doubt? A reasonable doubt is first and foremost a real doubt, that is not imagined, not capricious, not frivolous. It is a real doubt, an honest doubt entertained in the mind of a reasonable person. A reasonable doubt is therefore a doubt that is reasonable. It is nothing other than that. And it is a degree of certainty which you use every day, in your important activities, whether at work, at home or in your leisure activities. It is a degree of certainty which you employ, which you have used since you reached the age of reason, without perhaps having dissected it as we are doing at present.

Therefore, this concept of reasonable doubt is in fact an expression, or a manner, perhaps not always a good one, of expressing a degree of certainty, certainty beyond a reasonable doubt. I want to give you an example to show you that it is a degree of certainty which you use, which you employ, which you know, and which you are asked to use in determining the guilt of the accused. I am saying to you because others may read what I’m telling you, I’m giving you the example I have used for years. I will not change my example because I like it, it does the job, I will not change it.

You know that in North America, the automobile is something as essential as a refrigerator, as a telephone, because we live in a country which is very large. [Emphasis added.]

9 The importance of jurors applying the appropriate standard of proof cannot be overemphasized. It is fundamental to a criminal trial. On this issue, the following appears in Lifchus (at paras. 27 and 41):

First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence. . . . If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law. Jurors must be reminded that the burden of proving beyond a reasonable doubt that the accused committed the crime rests with the prosecution throughout the trial and never shifts to the accused.

Further, it is possible that an error in the instructions as to the standard of proof may not constitute a reversible error. It was observed in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758, that the verdict ought not be disturbed “if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply”. On the other hand, if the charge as a whole gives rise to the reasonable likelihood that the jury misapprehended the standard of proof, then as a general rule the verdict will have to be set aside and a new trial directed.

12 The appeal is allowed, the order of the Court of Appeal is set aside and a new trial is directed.