Well done, or half-baked?

Unresolved differences between judges in a split decision can leave us wondering whether the case was really ready for judgment. In R v Jackson [2007] SCC 52 (6 December 2007) the Court divided 5 – 2 on whether there had been sufficient evidence to support the verdict in the Judge alone trial of the appellant for cultivation of cannabis (illegal production of marijuana).

The majority held that there had been sufficient evidence to support the conviction. Their judgment, delivered by Fish J, does not go into the evidence in the same detail as does the dissenting judgment of LeBel and Deschamps JJ.

Fish J repeated passages from the trial Judge’s decision. On reading that, one would agree that the case against the accused seemed conclusive. However, Deschamps J pointed out, particularly at para 18, that in critical respects the trial Judge’s findings were not supported by the evidence that had been given.

We do not have the majority’s response to the minority’s difficulty. If we wanted to delve further into the case, we would have to look, not merely at the full reasons given by the trial Judge, but at the transcript of the evidence in the case. It is not possible for most readers of the Supreme Court’s judgments to do so. All we can do is assume that the dissenters have pointed to a difficulty that the majority cannot answer: the equipment discovered at the crime scene may not have supported an inference that the accused participated in the offending.

This is not to suggest that each individual inference must support guilt beyond reasonable doubt. A weak inference of guilt from some facts may combine with a stronger inference of guilt from other facts, so that guilt may be established, by this combination, beyond reasonable doubt. In this case, the equipment might support a weak inference of guilt; the rubber boots that the accused wore when he got out of the tent when the police arrived might also support a weak inference of guilt; so too might the fact (if indeed it was a fact) that the amount of work done suggested participation by all five of the people at the scene. These, although not individually sufficient to support guilt beyond reasonable doubt, might in combination have done so. The minority gave better reasons than the majority for rejecting that conclusion.

Interestingly, on the recently discussed topic of an accused’s lies in his testimony in court (see blog for 23 November 2007), Deschamps J quoted with approval, at para 16, a passage from the dissenting judgment in the Quebec Court of Appeal, which included the following:

“The appellant’s testimony, which the judge did not find to be credible, cannot be used to prove, a contrario, the acts that the appellant denies having committed; in other words, not believing the appellant’s denial that he handled any object whatsoever used to produce cannabis does not justify a conclusion that, contrary to what he says, he did handle the objects in question.”