International Law

R. v. Layton: Questioning the Lifchus Charge and ?Reasonable Doubt?

By Daniel Del Gobbo

Defining the Criminal Standard of Proof

A few weeks ago, the Supreme Court released judgment in R. v. Layton, 2009 SCC 36, an appeal seeking definitive instruction on how to explain the criminal standard of proof ?beyond a reasonable doubt? to a jury. Although these words are commonly used in everyday parlance, they assume a specific meaning in the legal context that may not be intuitive to ordinary citizens.

Indeed, at which point does a jury?s doubt become ?reasonable? enough to warrant an acquittal? Perhaps when a doubt is merely fleeting, so as to slightly compromise full confidence in an accused?s guilt? Or perhaps when a doubt is quite substantial, tipping the scales of probability in favour of an accused?s innocence?

The correct criminal standard falls somewhere in between. Navigating this amorphous territory is the leading case R. v. Lifchus, [1997] 3 S.C.R. 320, which provides model instructions on how to explain the meaning of proof ?beyond a reasonable doubt? to a jury. In that case, Cory J. holds that a ?reasonable? doubt is not farfetched or frivolous, nor is it based on sympathy or prejudice, but is one that logically arises from evidence relating to an essential element of the offence. The standard is much higher than that used in the civil context, proof on a balance of probabilities, and yet is slightly lower than absolute certainty, which is an impossibly high standard in any context. The correct standard does fall closer to the latter, however.

While the Lifchus model is not a ?magic incantation?, to borrow Cory J.?s words, jury instructions that follow it have proven unassailable on appeal. Our high court has repeatedly affirmed as much. The issue in Layton, then, becomes whether a trial judge should provide an additional explanation of ?reasonable doubt? in the event that the jury does not understand its initial Lifchus instructions.

Understanding Layton

The accused in Layton was on trial for an alleged sexual assault, a serious crime for which it was imperative that the jury understand the standard of proof to be met by the Crown in order to secure a guilty verdict. Appreciating as much, the trial judge delivered careful and complete instructions modeled on the Lifchus suggested charge.

Upon deliberating for a full day without reaching a verdict, the jury provided a handwritten question to the judge: ?Jury requests clarification on reasonable doubt section of charge to the Jury. Particularly difference between absolute certainty and balance of probabilities. Page 15.?

The trial judge was reticent in her reply, fearing that a protracted re-explanation that strayed from the Lifchus framework might confuse or prejudice the jury, and instead reiterated her original instructions almost verbatim, emphasizing key points. After doing so, she stated that

[t]he words ?reasonable doubt? defy precise interpretation. Every attempt to explain them leads to more confusion as opposed to clarity. So that I must accordingly leave you with the instruction the way as ? the way that I gave it to you and have just repeated it for you. [?] I hope this helps. There is really very little I can add to clarify it. [Emphasis in original.]

The questions before the Supreme Court were whether the jury?s question betrayed any difficulty in understanding the criminal standard, and if so, whether the judge?s reply, non-responsive as it was, provided sufficient clarification.

Close Reading the Jury?s Question

Rothstein J. for a five justice majority finds that the clear wording of the jury?s question reveals considerable confusion around the meaning of ?proof beyond a reasonable doubt?, a finding substantiated by their pinpoint reference to ?Page 15? of the judge?s charge where this standard was specifically explained.

Cromwell J., writing for himself and McLachlin C.J.C. in the minority, opines that this as ?reading too much into the jury?s question,? the text of which convinces him that the jury?s problem particularly concerned the term ?balance of probabilities?, not ?reasonable doubt?.

In my respectful view, a close reading of the jury?s question reveals an equivalent interest in both terms ?absolute certainty? and ?balance of probabilities.? Nothing suggests that the latter was especially confusing. And considering that both terms were contextualized within the ?reasonable doubt section? of the charge, it would seem the jury sought a re-definition of the reasonable doubt standard using ?absolute certainty? and ?balance of probabilities? as relational extremes. It very well may be that one term was less understood than the other, although I cannot agree that it was necessarily the latter. For example, difference between ?absolute certainty? and ?moral certainty?, one term with which the former is often confounded, may not be self-evident.

A Discouraging Trial Judge

Further, I agree with Rothstein J. that where a jury appears confused after hearing their instructions, unassailable or not, the trial judge must attempt to provide clarification in an effort to assist their understanding. Otherwise the jury may be misapprehended about their responsibility as trier of fact.

By simply reiterating her original charge, this trial judge erred by not further distinguishing the criminal standard of proof ?beyond a reasonable doubt? from its relational terms. As Rothstein J. explains, she could have done so by providing that at one end of the spectrum, ?absolute certainty? denotes knowing something beyond the possibility of any doubt whatsoever, while at the other end, ?balance of probabilities? denotes the same as ?probable or likely guilt.

Had the trial judge had provided such clarification, it would not have been the product of a ?quickly cobbled-together attempt? to improve the Lifchus charge, as Cromwell J. contends, because the new terms are intuitive, original, and may have helped the Layton jury in correctly positioning the criminal standard.

For Rothstein J., however, the trial judge?s verbatim repetition of her initial instructions was not so grave an error as her comments to the jury ? specifically, that any attempt to explain the words ?reasonable doubt? would lead to more confusion, and that ?there is really very little I can add to clarify? these words? meaning. These essentially signified that jury members were not welcome to return with questions if their confusion about the standard of proof persisted. Rather, she should have ?made it absolutely clear to the jury,? Rothstein J. writes, that such additional questions were encouraged.

Cromwell J. does not share this concern that the trial judge?s comments were discouraging of further questioning, stating rather cursorily that they ?realistically? reflected the state of the law and did not ?push its boundaries?. Personally, I am not convinced that further questioning would have pushed the law?s boundaries ? indeed, had the jury not been dissuaded from doing so, they may have posed a second question, one substantively similar question to their first, only reworded in way that this writer?s ?close reading? would not be required to decipher it.

Retreating from Battle

What appears to also motivate Cromwell J.?s dissent is his fear that requiring re-explanations of ?reasonable doubt? may give rise to judges making more reversible errors at trial. In this vein, he rather colourfully opines that ?the legal landscape in this area resembles a battlefield on which many verdicts have been casualties.?

While I would concede that many trials have had to be redone because of errors in the judge?s charge, I object to Cromwell J?s implicit association of procedural fairness with a weapon of war, and although he refrains from qualifying which ?verdicts? are the casualties of that war, the subtext seems clear enough that those are guilty verdicts. With all due respect, Cromwell J. should have resisted this message.

The defendant in Layton remains merely accused, and is no longer convicted, because the integrity and reliability of his jury?s verdict was compromised. We must always remember that the defendant may have been acquitted had his judge not made a reversible error, and that even if he did not have a strong case on the merits, principles of procedural fairness were not on trial.

In Sum

The Supreme Court?s decision in Layton improves the Lifchus model charge by mandating its amenability to clarification and questioning, and does very well in doing so. Enabling our criminal standard of ?proof beyond a reasonable doubt? to be more easily understood by juries, the decision may help facilitate the administration of justice.

Full post as published by The Court on August 12, 2009 (boomark / email).