Friday, June 19, 2009

Inferences, reasonable doubt, and double hearsay in Canada

R v Griffin [2009] SCC 28 (18 June 2009) illustrates the Canadian approach to the criminal standard of proof in relation to circumstantial evidence. There is nothing special about circumstantial evidence in this regard (33):

"We have long departed from any legal requirement for a "special instruction" on circumstantial evidence, even where the issue is one of identification: R. v. Cooper, 1977 CanLII 11 (S.C.C.), [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may be achieved in different ways: R. v. Fleet 1997 CanLII 867 (ON C.A.), (1997), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v. Guiboche, 2004 MBCA 16 (CanLII), 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran 2000 CanLII 2688 (ON C.A.), (2000), 142 C.C.C. (3d) 380 (Ont. C.A.), at para. 29."

As with any sort of evidence, judges can go wrong in their instructions on standard of proof when they refer to alternative inferences. That was the ground of appeal on this point, but in context the majority held that there was no misdirection. Here, the Judge's references to "equally rational" and "as reasonable" inferences were, held the majority, references to the qualities of any inference, guilty or otherwise (35).

What do they mean by "beyond reasonable doubt" in Canada? Should a juror be able to explain to other jurors why he has a reasonable doubt? Would a "feeling" or an "intuition" be sufficient?

"43. As the majority of the Court of Appeal rightly acknowledged (at para. 65), this Court in R. v. Lifchus, 1997 CanLII 319 (S.C.C.), [1997] 3 S.C.R. 320, "did not entirely reject a definition of reasonable doubt that would include a reference to reasons". In settling the preferred approach to a jury charge on reasonable doubt in Lifchus, Cory J. noted the appellate controversy on whether a jury should be instructed that a reasonable doubt is a doubt "for which one can give a reason" (para. 28). After considering the potential risks and difficulties that accompany such an instruction, he concluded at para. 30: 

'It follows that it is certainly not essential to instruct jurors that a reasonable doubt is a doubt for which a reason can be supplied. To do so may unnecessarily complicate the task of the jury. It will suffice to instruct the jury that a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence.' "


"45. The jury's question was a clear indication that it still required assistance on the definition of reasonable doubt and the application of this concept to the evidence. This Court has repeatedly stressed the importance of providing clear, precise answers to questions from a jury: R. v. Naglik, 1993 CanLII 64 (S.C.C.), [1993] 3 S.C.R. 122, at p. 139; R. v. S. (W.D.), 1994 CanLII 76 (S.C.C.), [1994] 3 S.C.R. 521, at pp. 528-31; R. v. Brydon, 1995 CanLII 48 (S.C.C.), [1995] 4 S.C.R. 253, at paras. 16 and 19; and R. v. Seymour, 1996 CanLII 201 (S.C.C.), [1996] 2 S.C.R. 252, at para. 30. Given the specificity of the query, it was reasonable for the trial judge to decide that more was required than a simple reiteration of the instructions contained in the main charge. In particular, the trial judge recognized that it was important to tell the jury that their verdict must be based, not on feelings or intuitions but rather, as set out in Lifchus above, "on reason and common sense" which, in turn, "must be logically based upon the evidence or lack of evidence" before the court (emphasis added). The trial judge explained what that meant by setting out generic examples of how a juror's analysis on reasonable doubt might proceed."

The majority thought there was no error in the Judge's direction:

"47 ... the instruction contains no error. As Côté J.A. put it [dissenting in the Court of Appeal for Quebec in the present case], "the standard requires a serious examination of the evidence upon which the verdict is to be based" (para. 139) and that was the essence of the message conveyed to the jury. ...."

There was also a hearsay ground of appeal in this case: the deceased victim had said something indicating fear of the accused. This was, in the circumstances of the case, admissible as hearsay, but only to prove the victim's state of mind. This artificial distinction has apparently been abandoned in New Zealand: hearsay seems to be admissible on any issue to which it is relevant. Not only could it go to proving the victim's fear of the accused, but it could be evidence of the accused's attitude to the victim. This is the "double hearsay" aspect of the evidence: the first hearsay aspect is a witness saying what the deceased said, and the second is the deceased's assertion of the accused's attitude to him. Care is needed before accepting the truth of double hearsay, because it is not possible to check whether the deceased might have been confused, but if the circumstances relating to the hearsay statement provide reasonable assurance that it is reliable, it should be admissible (s 18 Evidence Act 2006).

As with the other ground, the Supreme Court of Canada split 5 – 2 on this ground of appeal.

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