Common Sense Prevails In R. v. J.H.S.

Last week, the Supreme Court released its decision in R. v. J.H.S., 2008 SCC 30. The decision was a welcome breath of judicial common sense, applied to the process of instruction in criminal justice cases.

The case concerned a charge of sexual assault, where the accused was the stepfather of the complainant. At the trial, the accused and complainant unsurprisingly had differing accounts of the events in question, with the accused maintaining that no sexual assault had occurred and the complainant disagreeing sharply.

Robertson J. of the Supreme Court of Nova Scotia charged the jury on the issue of credibility as follows:

It will be up to you to decide how much or how little you will believe or rely upon the testimony of any witness. You may believe some, none or all… [t[he real issue in this case is whether the alleged events ever took place. It is for the Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred. It is not for [the accused] to prove that these events never happened. If you have a reasonable doubt whether the events alleged ever took place, you must find him not guilty… [y]ou do not decide whether something happened simply by comparing one version of events with another, or choosing one of them. You have to consider all the evidence and decide whether you have been satisfied beyond a reasonable doubt that the events that form the basis of the crime charged, in fact, took place.

The jury found the accused guilty.

The Court of Appeal of Nova Scotia overturned this verdict, finding that Robertson J. failed to properly explain the principle of reasonable doubt as regards credibility. Citing R v. W.(D.), 1991 1 SCR 742, the court held that the instruction failed to adequately inform the jury as to how to proceed if they were uncertain or unable to resolve the issue of credibility.

In R v. W.(D.), the Supreme Court held that trial judges

should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole.

The Court of Appeal stated that Robertson J. did not clearly illustrate the second principle, and therefore that the conviction could not stand.

The Supreme Court disagreed. After citing a number of logical inconsistencies present in the formulation of the questions presented in W.(D.), Justice Binnie explained that “the W.(D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them.” Going back to Robertson J.’s original instruction, the court found that although he did not explicitly repeat the instructions laid out in W.(D.), he got across the point of the questions and prevented any chance of the jury misunderstanding what was required.

This is a fairly straightforward decision, and a welcome one. Overreliance on precisely stated formulae in caselaw makes our legal system less accessible to the layman. Robertson J.’s instruction clearly satisfied the spirit of the questions laid out in W.(D.) – namely, to ensure that the principle of “beyond a reasonable doubt” retains its position of primacy in the criminal trial process. To overturn his decision based on the failure to repeat words by rote, when he clearly took pains to instruct the jury to consider the necessity of certainty in their verdict, would have been ridiculous.