December 04, 2017
Kasirer, Vauclair, Hogue
Appeal from a conviction. Allowed.
The appellant appeals from a judgment convicting her on two counts of first degree murder. The judge’s instructions to the jury regarding reasonable doubt were inadequate. In her final and bilingual instructions, the judge explained reasonable doubt differently and set out two different standards. First, in English, the judge correctly explained that the standard of proof beyond a reasonable doubt is much closer to absolute certainty, in the words of the Supreme Court in R. v. Lifchus (S.C. Can., 1997-09-18), SOQUIJ AZ-97111090, J.E. 97-1809,  3 S.C.R. 320. Then, in French, she stated that the Crown was not under the obligation to [translation] “prove something with certainty”. The standard of proof beyond a reasonable doubt must absolutely be correctly understood by the jurors because it is inextricably linked to the presumption of innocence and affects the basic procedural fairness of a criminal trial. In addition, the video recording of the appellant’s interrogation, during which she asserted her right to silence and asked to go back to her cell approximately 90 times over a 4-hour period, is inadmissible in evidence because, combined with the instructions of the trial judge – who invited the jury to use it as circumstantial evidence that could shed light on the appellant’s intent – and the respondent’s arguments, this evidence transformed the exercise of the right to silence into incriminating evidence. The prejudicial effect resulting from its use outweighs its probative value. Each of these errors justifies holding a new trial.
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