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PROCEDURE - Trial judge’s duties - Charge or directions

Friday, September 10, 2021 @ 5:37 AM  

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Appeal by the accused from convictions for fraud and using forged documents. The appellant deposited to his bank account forged cheques drawn on the account of a company and then immediately withdrew almost all the deposited amounts in cash. The appellant was not the only person cashing fraudulent cheques drawn on the Company as 33 other fraudulent cheques were issued to others. The appellant did not deny depositing the cheques or withdrawing the funds in cash but denied knowing the cheques were forgeries. He claimed he accepted the cheques from Bruce and Lorraine in payment for sex machines that he built and sold to them. His relationship with Bruce and Lorraine ended when one of the cheques they gave him bounced. He testified he was unable to contact them ever since, despite numerous attempts. The trial turned on the appellant’s credibility. The appellant argued the trial judge provided an insufficient charge to the jury on proof beyond a reasonable doubt. He argued that although the trial judge told the jury at the outset of the trial that the standard of proof was higher than probability, in his charge four days later he told the jury it must be satisfied beyond a reasonable doubt that the accused committed the offences, but he did not go further to define reasonable doubt by clarifying that proof the accused probably committed the offences was insufficient for conviction. The appellant also argued the trial judge erred in failing to provide a WD charge as he failed to instruct the jury that if they did not believe his testimony but were left in reasonable doubt by it, they must acquit. The judge referred only to concerns the jury might have had about the appellant’s credibility and reliability. The appellant also argued the trial judge failed to properly provide an answer to the jury’s question whether the verdict was to be based solely on the evidence presented or also on the lack of evidence, given the paucity of evidence concerning the remainder of the 33 fraudulent cheques, the involvement of Bruce and Lorraine and whether a mastermind was involved. The judge’s response was that the jury should reach its verdict on the evidence alone.

HELD: Appeal allowed. New trial ordered. The trial judge’s failure to repeat in his charge the fact that the lower end of the required standard of proof was higher than probability was a defect. Defence counsel, however, did remind the jury in his closing address that probability was not good enough. On its own, the trial judge’s WD formulation would likely not be fatal in this case. The jury’s question was an important one and should have been answered clearly. While a reasonable doubt could arise from a lack of evidence, a lack of evidence or gap in evidence could not be relied on in convicting an accused. The trial judge’s answer in this case was partially correct and partly incorrect, or at least incomplete. Arguably, it left the jury with the impression that even though the absence of evidence on a point gave rise to a doubt in their minds, they could not consider it because the verdict must be based on the evidence alone. Taken cumulatively, the fact that the judge did make it clear that the onus remained on the Crown throughout, did not allay the concern that the jury might not have understood the meaning of the standard of beyond a reasonable doubt or how to approach the credibility problem consistently with the presumption of innocence. The jury was obviously troubled by a lack of evidence on some point but was left with the impression that a reasonable doubt could not arise from that fact. These errors were not harmless and a substantial wrong would occur if the appeal were dismissed.

R. v. Whitmore, [2021] B.C.J. No. 1706, British Columbia Court of Appeal, M.V. Newbury, P. Abrioux and L. Marchand JJ.A., August 6, 2021. Digest No. TLD-September62021007