R. v. J.H.S., (2008) 265 N.S.R.(2d) 203 (SCC)

• Judge: Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 29, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 265 N.S.R.(2d) 203 (SCC);2008 SCC 30;AZ-50494137;[2008] CarswellNS 270;265 NSR (2d) 203;57 CR (6th) 79;293 DLR (4th) 257;375 NR 67;JE 2008-1120;77 WCB (2d) 781;231 CCC (3d) 302;[2008] 2 SCR 152;EYB 2008-133842;[2008] SCJ No 30 (QL);[2008] ACS no 30

R. v. J.H.S. (2008), 265 N.S.R.(2d) 203 (SCC);

    848 A.P.R. 203

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.S.R.(2d) TBEd. MY.062

Her Majesty The Queen (appellant) v. J.H.S. (respondent)

(31897; 2008 SCC 30; 2008 CSC 30)

Indexed As: R. v. J.H.S.

Supreme Court of Canada

Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

May 29, 2008.

Summary:

A jury found the accused guilty of sexually assaulting his step-daughter. He was sentenced to 4.5 years' imprisonment. The accused appealed against conviction, submitting that the trial judge misdirected the jury on the burden of proof and reasonable doubt, erred in admitting evidence of "bad behaviour" by the complainant and, alternatively, if the "bad behaviour" evidence was admissible, erred in failing to properly instruct the jury on the limited use of that evidence.

The Nova Scotia Court of Appeal, Saunders, J.A., dissenting, in a judgment reported (2007), 250 N.S.R.(2d) 360; 796 A.P.R. 360, allowed the appeal on the ground that the trial judge failed to properly instruct the jury on the burden of proof and reasonable doubt as it pertained to credibility. The court ordered a new trial. The Crown appealed that finding.

The Supreme Court of Canada allowed the appeal and restored the conviction.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - A jury found the accused guilty of sexually assaulting his step-daughter - The accused appealed on the ground that the trial judge misdirected the jury on the burden of proof and reasonable doubt - The Nova Scotia Court of Appeal held that although the judge properly directed the jury on the Crown's burden of proving guilt beyond a reasonable doubt, the jury's assessment of the credibility of the accused and step-daughter was critical, and the judge failed to instruct the jury that reasonable doubt also applied to the assessment of credibility, particularly that they must acquit not only if they believed the accused, but also if they did not believe the accused but still had a reasonable doubt after considering all of the evidence (i.e., R. v. D.W. suggested jury charge) - The court ordered a new trial where there was a reasonable likelihood that the jury misapprehended the correct standard and burden of proof respecting credibility - The Supreme Court of Canada held that the Court of Appeal erred in finding that the jury was not clearly instructed that the lack of credibility on the accused's part did not equate to proof of his guilt beyond a reasonable doubt - The judge's instruction left no realistic possibility of the jury misunderstanding the correct burden and standard of proof to apply - The court restored the conviction - See paragraphs 1 to 18.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - In R. v. D.W. (S.C.C.) the court suggested the following instructions to the jury on the issue of credibility and the burden of proof and reasonable doubt: "First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused" - The Supreme Court of Canada discussed criticisms of the formulation of the questions - The court reiterated that the D.W. instructions "need not be given 'word for word as some magic incantation'" - The message of D.W. that "it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph of form over substance" - What the second question in D.W. calls for is for the jury to clearly understand that its duty was not to choose between the complainant's and accused's version of events - The jury must understand that "the lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt" - See paragraphs 10 to 13.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See both Criminal Law - Topic 4351 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 1].

R. v. Challice (1979), 45 C.C.C.(2d) 546 (Ont. C.A.), refd to. [para. 8].

R. v. Chan (1989), 100 A.R. 133; 52 C.C.C.(3d) 184 (C.A.), refd to. [para. 8].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 8].

R. v. C.W.H. (1991), 3 B.C.A.C. 205; 7 W.A.C. 205; 68 C.C.C.(3d) 146 (C.A.), refd to. [para. 8].

R. v. MacKenzie, [1993] 1 S.C.R. 212; 146 N.R. 321; 118 N.S.R.(2d) 290; 327 A.P.R. 290, refd to. [para. 8].

R. v. Levasseur (J.), [1994] 3 S.C.R. 518; 205 N.R. 389, refd to. [para. 8].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 8].

R. v. Latimer (R.W.), [2001] 1 S.C.R. 3; 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1; 2001 SCC 1, refd to. [para. 10].

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. [para. 13].

R. v. Avetysan (A.), [2000] 2 S.C.R. 745; 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338; 2000 SCC 56, refd to. [para. 13].

Counsel:

Daniel A. MacRury, Q.C., for the appellant;

Joel E. Pink, Q.C., for the respondent.

Solicitors of Record:

Public Prosecution Service of Nova Scotia, Halifax, N.S., for the appellant;

Garson Pink, Halifax, N.S., for the respondent.

This appeal was heard on January 25, 2008, before Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On May 29, 2008, Binnie, J., delivered the following judgment in both official languages for the Court.