R. v. Avetysan (A.) (2000), 195 Nfld. & P.E.I.R. 338 (SCC);
586 A.P.R. 338
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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MLB headnote and full text
Temp. Cite: [2000] Nfld. & P.E.I.R. TBEd. NO.020
Arthur Avetysan (appellant) v. Her Majesty The Queen (respondent)
(27279; 2000 SCC 56)
Indexed As: R. v. Avetysan (A.)
Supreme Court of Canada
Major, Bastarache, Binnie, Arbour and LeBel, JJ.
November 10, 2000.
Summary:
Two accused were tried jointly by judge and jury and found guilty of assault and extortion. The accused appealed.
The Newfoundland Court of Appeal, Green, J.A., dissenting, in a decision reported at 174 Nfld. & P.E.I.R. 34; 533 A.P.R. 34, dismissed the appeal. One of the accused appealed.
The Supreme Court of Canada, Bastarache, J., dissenting, allowed the appeal and ordered a new trial.
Criminal Law – Topic 4293.1
Procedure – Trial judge – Duties and functions of – Jury trials – An accused appealed his conviction, asserting that the jury charge on reasonable doubt was defective -The Crown asserted that the submissions by Crown counsel during the trial respecting the reasonable doubt standard had remedied the charge – The Supreme Court of Canada rejected the Crown’s assertion – The fact that Crown counsel might have described the reasonable doubt standard properly could not correct the trial judge’s failure to do so – The long established rule was that the trial judge instructs the jury on questions of law – The trial judge bore that responsibility and while counsel’s errors could be corrected by the trial judge in his charge, the opposite was not true – See paragraph 25.
Criminal Law – Topic 4351
Procedure – Charge or directions – Jury or judge alone – Direction regarding burden of proof and reasonable doubt – The Supreme Court of Canada stated that the review of a jury charge for compliance with the principles set out in R. v. Lifchus (W.) (S.C.C.) respecting “proof beyond a reasonable doubt” was not a mechanical exercise but one of substance – The exclusion of an item that should have been explained or the inclusion of an item that should have been avoided will not usually be determinative of the validity of the charge as a whole – See paragraph 11.
Criminal Law – Topic 4351
Procedure – Charge or directions – Jury or judge alone – Direction regarding burden of proof and reasonable doubt – The Supreme Court of Canada stated that the principles set out in R. v. Lifchus (W.) (S.C.C.) respecting “proof beyond a reasonable doubt” “… are to be applied in a manner that will encourage improvements in the wording of jury charges, but do not vitiate past charges where the language used, although no longer preferred, meets the substantially correct test. A jury charge given before or after the Lifchus decision should not be faulted merely for imprecise language. Rather, … it should be reviewed to determine whether it substantially complies with the Lifchus principles. … the basic question remains: Does the charge, read as a whole, give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof? If not, the charge is adequate.” – See paragraph 12.
Criminal Law – Topic 4351
Procedure – Charge or directions – Jury or judge alone – Direction regarding burden of proof and reasonable doubt – The Supreme Court of Canada allowed an accused’s conviction appeal, holding, inter alia, that the trial judge’s jury charge on the standard of proof beyond a reasonable doubt was defective – The trial judge erred as follows: by not clearly telling the jury that proof beyond a reasonable doubt was more than a balance of probabilities, but less than absolute certainty; by not telling the jury that it was required to acquit if it concluded only that the accused were “probably guilty”; by not conveying the special character of the criminal standard of proof; and in using adjectives such as “serious” and “real” to modify “doubt” – Additionally, the trial judge linked the standard of proof beyond a reasonable doubt to the presumption of innocence, but failed to warn that the burden never shifts from the Crown – See paragraphs 10 to 17.
Criminal Law – Topic 4351
Procedure – Charge or directions – Jury or judge alone – Direction regarding burden of proof and reasonable doubt – An accused’s and a complainant’s version of events were diametrically opposed – In charging the jury, the trial judge reviewed the versions and expressed a preference for the complainant’s version – The judge advised the jurors that they could either acquit if a reasonable doubt remained or convict if satisfied beyond a reasonable doubt – The judge explained his reasoning by saying that he had compared the accused’s and the complainant’s evidence – The Supreme Court of Canada held that the trial judge erred in suggesting that the jury had to resolve the factual question of what happened – The judge should have advised the jurors that they could acquit if they did not believe the accused but were left with a reasonable doubt on the evidence accepted – The judge should have warned the jurors not to convict automatically if they found the complainant to be the more credible witness – There was some risk that the jury misapprehended the requirement of proof beyond a reasonable doubt in relation to the two irreconcilable versions of events – The judge’s admonition to consider “all of the evidence” did not correct the error – See paragraphs 18 to 26.
Criminal Law – Topic 4351
Procedure – Charge or directions – Jury or judge alone – Direction regarding burden of proof and reasonable doubt – [See
Criminal Law – Topic 4293.1
].
Criminal Law – Topic 4376
Procedure – Charge or directions – Jury or judge alone – Directions regarding law and case law – [See
Criminal Law – Topic 4293.1
].
Criminal Law – Topic 4377
Procedure – Charge or directions – Jury or judge alone – Directions regarding credibility of witnesses – [See fourth
Criminal Law – Topic 4351
].
Criminal Law – Topic 4379
Procedure – Charge or directions – Jury or judge alone – Directions re evidence of character or credibility of accused – [See fourth
Criminal Law – Topic 4351
].
Criminal Law – Topic 4380
Procedure – Charge or directions – Jury or judge alone – Misdirection – General – [See
Criminal Law – Topic 4293.1
].
Criminal Law – Topic 4418
Procedure – Opening and closing addresses – Summing up – Counsel – Closing address – Respecting law – [See
Criminal Law – Topic 4293.1
].
Cases Noticed:
R. v. Russell (M.E.) (2000), 261 N.R. 339 (S.C.C.), refd to. [paras. 2, 33].
R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, consd. [paras. 3, 27].
R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [paras. 3, 27].
R. v. Starr (R.D.) (2000), 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161 (S.C.C.), refd to. [para. 3].
R. v. Beauchamp (A.) (2000), 262 N.R. 119 (S.C.C.), refd to. [para. 3].
R. v. Bisson (Y.), [1998] 1 S.C.R. 306; 222 N.R. 365, refd to. [para. 15].
R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [paras. 19, 28].
Counsel:
Derek Hogan, for the appellant;
Wayne Gorman, for the respondent.
Solicitors of Record:
Derek Hogan, St. John’s, Newfoundland, for the appellant;
Department of Justice, St. John’s, Newfoundland, for the respondent.
This appeal was heard on January 28, 2000, before Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.
The decision of the Court was delivered in both official languages on November 10, 2000, and the following opinions were filed:
Major, J. (Binnie, Arbour and LeBel, JJ., concurring) – see paragraphs 1 to 26;
Bastarache, J., dissenting – see paragraphs 27 to 33.
