R. v. Layton: Questioning Lifchus “Beyond a Reasonable Doubt”
Defining the Criminal Standard of Proof
A few weeks ago, the Supreme Court released judgment in R. v. Layton, 2009 SCC 36, an appeal seeking definitive instruction on how trial judges should explain to juries the criminal standard of proof “beyond a reasonable doubt”. Although these words are commonly used in everyday parlance, they assume a specific meaning in the legal context that may not be intuitive to ordinary citizens.
Indeed, at which point does a jury’s doubt become “reasonable” enough to mandate an acquittal? Perhaps when a doubt is merely fleeting, so as to slightly compromise full confidence in an accused’s guilt? Or perhaps when a doubt is quite substantial, tipping the scales of probability in favour of an accused’s innocence?
The correct criminal standard falls somewhere in between. Navigating this amorphous territory is the leading case R. v. Lifchus,  3 S.C.R. 320, which provides model instructions on how to explain the meaning of proof “beyond a reasonable doubt”. In that case, Cory J. holds that a “reasonable” doubt is not farfetched or frivolous, nor is it based on sympathy or prejudice, but is one that logically arises from evidence relating to an essential element of the offence. The standard is much higher than that used in the civil context, proof on a balance of probabilities, and yet is slightly lower than absolute certainty, which is an impossibly high standard in any context. The correct criminal standard would seem to fall closer to the latter.
While the Lifchus terms are not a “magic incantation”, to quote Cory J., jury instructions modeled after them have proven unassailable. The issue in Layton, then, becomes whether a trial judge should provide any additional explanation of “reasonable doubt” in the event that the jury does not understand its initial Lifchus instructions.
The accused in Layton was on trial for an alleged sexual assault, a serious crime carrying with it serious responsibility that the jury understand the standard of proof to be met by the Crown. Appreciating as much, the trial judge delivered careful and complete instructions that borrowed from the Lifchus-suggested charge.
Upon deliberating for a full day without reaching a verdict, the jury posed a handwritten question to the judge: “Jury requests clarification on reasonable doubt section of charge to the Jury. Particularly difference between absolute certainty and balance of probabilities. Page 15.”
The trial judge was understandably reticent to reply, fearing that a protracted re-explanation that strayed from the Lifchus framework might misrepresent the burden of proof, further confuse the jury, or prejudice either side. She eventually reiterated her original instructions almost verbatim. After doing so, she stated that
[t]he words “reasonable doubt” defy precise interpretation. Every attempt to explain them leads to more confusion as opposed to clarity. So that I must accordingly leave you with the instruction the way as – the way that I gave it to you and have just repeated it for you. […] I hope this helps. There is really very little I can add to clarify it. [Emphasis in original.]
The questions before the Supreme Court were whether the jury’s question betrayed any difficulty in understanding the criminal standard, and if so, whether the judge’s reply, non-responsive as it was, provided sufficient clarification.
Close Reading the Jury’s Question
Rothstein J. for a five justice majority finds that the clear wording of the jury’s question reveals considerable confusion around the meaning of “proof beyond a reasonable doubt”, a finding substantiated by their pinpoint reference to “Page 15” of the judge’s charge where this standard was specifically explained.
Cromwell J., writing for himself and McLachlin C.J.C. in the minority, opines this to “read too much into the jury’s question,” the text of which convinces him that the jury’s problem particularly concerned the term “balance of probabilities”, not “reasonable doubt”.
In my respectful view, a close reading of the jury’s question reveals an equivalent interest in both terms “absolute certainty” and “balance of probabilities.” Nothing suggests that the latter was especially confusing. And considering that both terms were contextualized within the “reasonable doubt section” of the charge, it would seem the jury sought a redefinition of the “reasonable doubt” standard using “absolute certainty” and “balance of probabilities” as relational extremes. It may very well have been that one relational term was less understood than the other, although I cannot agree that it was necessarily “balance of probabilities”. For example, the difference between “absolute certainty” and “moral certainty”, a term with which the former is frequently confounded, may not be self-evident to a lay person.
A Discouraging Trial Judge
Further, I agree with Rothstein J. that where a jury appears confused by their instructions, unassailable or not, the trial judge must attempt to provide clarification in an effort to assist their understanding. Otherwise the jury may be misapprehended about their responsibility as trier of fact.
By simply reiterating her original charge, this trial judge erred by not further distinguishing the criminal standard of proof “beyond a reasonable doubt” from its relational terms. As Rothstein J. explains, she could have done so by providing that at one end of the spectrum, “absolute certainty” denotes knowing something beyond the possibility of any doubt whatsoever, while at the other end, “balance of probabilities” denotes “probable or likely guilt”.
Had the trial judge provided such clarification, it would not have been the product of a “quickly cobbled-together attempt” to improve the Lifchus charge, as Cromwell J. contends, because these new terms ought to have been intuitive and could have helped the Layton jury correctly position the criminal standard.
For Rothstein J., however, the trial judge’s verbatim repetition of her initial instructions was not so grave an error as her later comments to the jury – specifically, that any attempt to explain the words “reasonable doubt” would lead to more confusion, and that “there is really very little I can add to clarify” their meaning. In effect, these comments signified to jury members that they were not welcome to return with questions if their uncertainty persisted. Rather, the trial judge should have “made it absolutely clear to the jury,” Rothstein J. writes, that such additional questions are encouraged.
Cromwell J. is unconvinced that the trial judge’s comments were dissuasive, stating rather cursorily that they “realistically” reflected the state of the law and did not “push its boundaries”. Personally, I do not agree that further questioning would necessarily have done so. Perhaps had the jury felt welcome, they would have posed a second question similar in substance to the first, but rephrased in clearer terms. (That way a close reading would not have been required to decipher it.)
Retreating from Battle
What appears to motivate Cromwell J.’s dissent is a fear that requiring re-explanations of the criminal standard would give rise to more reversible errors being made at trial. In this vein, he rather colourfully opines that “the legal landscape in this area resembles a battlefield on which many verdicts have been casualties.”
While I would concede that numerous trials must be redone because of erroneous jury instructions, I cannot but object to this implicit association of procedural fairness with a weapon of war. And while Cromwell J. refrains from qualifying those “many verdicts” that are casualties of war, his subtext would seem to imply that they are mostly guilty verdicts. With much respect, Cromwell J. should have resisted this message.
The defendant in Layton is now merely accused, and no longer convicted, because the integrity and reliability of his original verdict were seriously compromised. After all, he may have been acquitted had the jury initially received proper instructions. And even if his case was not strong on the merits, that does not derogate from his Charter right to a fair trial.
The Supreme Court’s decision in R. v. Layton improves the Lifchus model charge by mandating its amenability to clarification and questioning. If even in some small measure, Layton may help facilitate our administration of justice by enabling juries to better understand the criminal standard “beyond a reasonable doubt”.