Schrager, Ruel, Cournoyer

Appeal from a conviction. Allowed. A new trial is ordered.

The appellant was convicted of 1 count of sexual assault following a jury trial. The trial judge gave his oral instructions to the jury in the morning and deliberations began immediately. At the end of the day, the judge received two written questions from the jury. They asked if a possibility constituted evidence and how to interpret a witness’s answer in light of the nature of the questions asked. The appellant criticizes the judge for having given an incorrect and incomplete answer to these questions.

The judge’s responsibility with respect to instructions in general and to answers to questions from the jury is exacting, even if it does not require perfection, since it is the overall effect of the instructions that matters. The instructions in response to a question from the jury, however, are of particular importance, as they usually concern an important aspect of the jury's reasoning. When the question is ambiguous, the judge has a duty to have they jury clarify it before answering. Failure to do so can constitute a reviewable error. Moreover, the answer communicated to the jury must not only be correct and comprehensive, but also not be improvised, because it must be drafted carefully and without haste.

In this case, the judge’s answer was incorrect because a witness’s admission of the existence of a possibility, with no other evidence to support it, does not constitute evidence. In addition, it was muddled by the distinction the judge made between the proof of a fact and the proof of a possibility, which in his view was [translation] “vaguer” evidence but, nonetheless, evidence that had to be taken into account.

The jury’s questions required a correct and comprehensive answer that was securely anchored in the issues in dispute it had to resolve. In the circumstances of this matter, the trial judge had to explain that the answer of a witness who admits a possibility suggested to him or her in a question during cross-examination must be distinguished from the answer that adopts the fact suggested by such a question, specifying that a possibility does not serve as evidence. He was also required to repeat his earlier instructions to the jury, which he did not do.

The curative proviso does not apply in the circumstances because it is impossible to assess the effect the incorrect answer given to the jury may have had on the verdict. Indeed, the accused must be acquitted if his testimony is believed and raises a reasonable doubt or if there is a reasonable doubt in light of the evidence as a whole. But reasonable doubt is a doubt based on evidence or lack of evidence. Thus, any question as to what constitutes evidence is determinative, as is any error with respect to that evidence, particularly when the evidence to be weighed by the jury is contradictory, as was the case here.

Text of the decision: http://citoyens.soquij.qc.ca