R. v. Van (D.) (2009), 251 O.A.C. 295 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2009] O.A.C. TBEd. MY.108
Her Majesty The Queen (appellant) v. Duc Van (respondent)
(32681; 2009 SCC 22; 2009 CSC 22)
Indexed As: R. v. Van (D.)
Supreme Court of Canada
McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
May 28, 2009.
Summary:
The accused was convicted by a jury of attempted murder, robbery, and forcible confinement. Two earlier trials had resulted in mistrials due to hung juries. The accused was sentenced to seven years’ imprisonment after receiving seven years’ credit for time served. He appealed his convictions and sentence.
The Ontario Court of Appeal, Winkler, C.J.O., dissenting in part, in a decision reported at 236 O.A.C. 219, allowed the conviction appeal, set aside the convictions and entered a stay of proceedings. The court did not deal with the sentence appeal. The Crown appealed.
The Supreme Court of Canada, Binnie, Fish, Charron and Cromwell, JJ., dissenting, allowed the appeal and restored the accused’s convictions. The court remitted the matter of the sentence appeal to the Court of Appeal for full consideration.
Criminal Law – Topic 4351
Procedure – Charge or directions – Jury or judge alone – Direction regarding burden of proof and reasonable doubt – The accused was convicted by a jury of attempted murder, robbery, and forcible confinement – The trial judge gave the instruction mandated by R. v. D.W. (S.C.C.) that dealt only with the accused’s evidence, but said nothing about any other evidence called by the accused – The accused appealed, arguing, inter alia, that the trial judge erred by failing to make it clear that the second and third stages of the D.W. analysis were not limited to the evidence given by the accused and that any evidence called by the defence that was capable of raising a reasonable doubt should be considered – The Supreme Court of Canada agreed with the Ontario Court of Appeal’s conclusion that this deficiency did not rise to the level of a reversible error – The court stated that the purpose of the D.W. instruction was to ensure that the jury knew how to apply the burden of proof to the issue of credibility – The jury had to be cautioned that a trial was not a contest of credibility between witnesses, and that they did not have to accept the defence evidence in full in order to acquit – If there was an error in the charge on this issue, the fact that it was correctly related at other points in the charge suggested that the jury were properly instructed – The court was satisfied in this case that the jury would have understood how to apply the presumption of innocence and the burden of proof to all the evidence presented at trial – At numerous points in his charge to the jury, the trial judge clearly conveyed that the Crown always bore the burden of proof and that if the jury had any reasonable doubt based on the evidence as a whole, they had to acquit – The jury would not have been misled by the judge’s instruction into thinking that they were required to accept all the other evidence called by the defence in order to acquit, as submitted by the accused – Any deficiency in the D.W. instruction was more than compensated for by the rest of the charge – See paragraphs 20 to 23.
Criminal Law – Topic 4379.2
Procedure – Charge or directions – Jury or judge alone – Directions regarding evidence admissible for limited purpose – The accused was convicted by a jury of attempted murder, robbery, and forcible confinement – As the accused attacked the integrity of the investigation, the Crown was permitted to lead evidence from the lead investigator (Nealon) about the police investigation that included hearsay evidence as part of the narrative necessary to explain how the investigation proceeded – The Ontario Court of Appeal held that the trial judge should have given a Dhillon instruction cautioning the jury that this evidence (hearsay and police opinion evidence) was to be used only as narrative to explain how the investigation had proceeded and that the hearsay and the sources undisclosed to the jury that were used by Nealon to further the investigation, as well as Nealon’s opinion, were otherwise inadmissible and did not amount to evidence the jury could use to find that the accused was guilty – The court declined to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code – The Supreme Court of Canada allowed the Crown’s appeal – The absence of a limiting instruction respecting the officer’s investigative hearsay and opinion evidence constituted an error of law – However, the error was minor – It was unlikely to have caused any real prejudice to the accused and would not have had any effect on the jury’s verdict – The majority of Nealon’s hearsay evidence was properly before the jury through the direct, admissible evidence of other witnesses – The jury understood their role as primary fact finders at trial – The convictions were restored pursuant to s. 686(1)(b)(iii) – See paragraphs 3 and 24 to 45.
Criminal Law – Topic 4385.1
Procedure – Charge or directions – Jury or judge alone – Directions regarding inadmissible evidence – [See
Criminal Law – Topic 4379.2
].
Criminal Law – Topic 5041
Appeals – Indictable offences – Dismissal of appeal if no prejudice, substantial wrong or miscarriage results – Where jury charge incomplete or in error – [See
Criminal Law – Topic 4379.2
].
Criminal Law – Topic 5045
Appeals – Indictable offences – Dismissal of appeal if no prejudice, substantial wrong or miscarriage results – What constitutes a substantial wrong or miscarriage of justice – The Supreme Court of Canada stated that “In Khan, this Court reviewed these two categories of error and explained the basis for upholding convictions in the face of these errors. An error falling into the first category is an error that is harmless on its face or in its effect. The proviso ensures that an appellate court does not need to overturn a conviction solely on the basis of an error so trivial that it could not have caused any prejudice to the accused, and thus could not have affected the verdict. Indeed, it would detract from society’s perception of trial fairness and the proper administration of justice if errors such as these could too readily lead to an acquittal or a new trial … Thus, a slight deviation from the standard of a perfect jury charge is likely to constitute a harmless error that could justify upholding a conviction. Errors might also be characterized as having a minor effect if they relate to an issue that was not central to the overall determination of guilt or innocence, or if they benefit the defence, such as by imposing a more onerous burden on the Crown … The question of whether an error or its effect is minor should be answered without reference to the strength of the other evidence presented at trial. The overriding question is whether the error on its face or in its effect was so minor, so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial, that any reasonable judge or jury could not possibly have rendered a different verdict if the error had not been made.” – See paragraph 35.
Criminal Law – Topic 5045
Appeals – Indictable offences – Dismissal of appeal if no prejudice, substantial wrong or miscarriage results – What constitutes a substantial wrong or miscarriage of justice – The Supreme Court of Canada stated that “An appellate court can also uphold a conviction under s. 686(1)(b)(iii) [of the Criminal Code] in the event of an error that was not minor and that cannot be said to have caused no prejudice to the accused, if the case against the accused was so overwhelming that a reasonable and properly instructed jury would inevitably have convicted … The high standard of an invariable or inevitable conviction is understandable, given the difficult task for an appellate court of evaluating the strength of the Crown’s case retroactively, without the benefit of hearing the witnesses’ testimony and experiencing the trial as it unfolded … It is thus necessary to afford any possible measure of doubt concerning the strength of the Crown’s case to the benefit of the accused person. The rationale for upholding a conviction in these circumstances is persuasive … Thus, an appellate court is justified in refusing to allow an appeal against a conviction in the event of minor errors that could not possibly have affected the verdict and more serious errors that were committed in the face of an overwhelming case against the accused, since the underlying question is always whether the verdict would have been the same if the error had not been committed …” – See paragraph 36.
Criminal Law – Topic 5045
Appeals – Indictable offences – Dismissal of appeal if no prejudice, substantial wrong or miscarriage results – What constitutes a substantial wrong or miscarriage of justice – [See
Criminal Law – Topic 4379.2
].
Evidence – Topic 1528.2
Hearsay rule – Hearsay rule exceptions and exclusions – Investigative hearsay led to rebut defence attack on adequacy of police investigation – [See
Criminal Law – Topic 4379.2
].
Cases Noticed:
R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 14].
R. v. Dhillon (S.) (2002), 161 O.A.C. 231; 166 C.C.C.(3d) 262 (C.A.), refd to. [para. 15].
R. v. Mallory (R.) et al. (2007), 220 O.A.C. 239; 2007 ONCA 46, refd to. [para. 15].
R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [paras. 16, 57].
R. v. J.H.S., [2008] 2 S.C.R. 152; 375 N.R. 67; 265 N.S.R.(2d) 203; 848 A.P.R. 203; 2008 SCC 30, refd to. [para. 23].
R. v. Lane (R.) (2008), 243 O.A.C. 156; 2008 ONCA 841, refd to. [para. 25].
R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281; 216 C.C.C.(3d) 225; 2007 SCC 6, refd to. [paras. 34, 59].
Chibok v. R. (1956), 24 S.C.R. 354 (S.C.C.), refd to. [para. 35].
R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1, refd to. [paras. 35, 96].
R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 36].
R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [para. 36].
R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [paras. 36, 56].
R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [paras. 39, 81].
R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 43].
R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [paras. 43, 96].
R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321; 59 C.C.C.(3d) 321, refd to. [paras. 43, 96].
R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134, refd to. [para. 57].
R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 59].
R. v. Crosby (W.S.), [1995] 2 S.C.R. 912; 183 N.R. 22; 143 N.S.R.(2d) 57; 411 A.P.R. 57, refd to. [para. 59].
R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 82].
Authors and Works Noticed:
McCormick on Evidence (6th Ed. 2006), vol. 1, § 12 [para. 83].
Counsel:
John McInnes, for the appellant;
Joseph S. Wilkinson and Philip Norton, for the respondent.
Solicitors of Record:
Attorney General of Ontario, Toronto, Ontario, for the appellant;
Joseph S. Wilkinson, Toronto, Ontario, for the respondent.
This appeal was heard on January 13, 2009, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The court delivered the decision on May 28, 2009, in both official languages, including the following opinions:
LeBel, J. (McLachlin, C.J.C., Deschamps, Abella and Rothstein, JJ., concurring) – see paragraphs 1 to 49;
Cromwell, J., dissenting (Binnie, Fish and Charron, JJ., concurring) – see paragraphs 50 to 102.
