Erring on the Side of Caution: R v Sarrazin

In R v Sarrazin, [2011] 3 SCR 505 [Sarrazin], the Supreme Court of Canada (“SCC”) passed down its latest pronouncement on the availability of the curative proviso.  At issue was whether the requirements for application of the curative proviso should be relaxed, and whether the proviso applied on the facts of the case to deny the respondents a new trial. Ultimately, the majority opted not to relax the requirements of the curative proviso, holding that the trial judge’s failure to put the option of attempted murder to a jury where it was reasonably available on the evidence constituted a grounds for retrial, despite the jury returning a verdict for the more onerous crime of second degree murder. The case is significant in regards to the majority’s holding on the curative proviso, its attitude towards lay judging generally, and the implications the changing composition of the SCC may have.

Facts, Law & Judicial History

The accused shot the victim, resulting in potentially life-threatening injuries. The victim stabilized, and was released from hospital when it was expected that he would make a full recovery. Five days later, the victim died from a blood clot. Trace amounts of cocaine were found in the victim’s blood, indicating cocaine consumption within an hour of his death. While the blood clot was likely the result of the shooting, the Crown pathologist conceded at trial that it could also have been the result of the ingested cocaine.

As a result, the defence argued that a reasonable doubt had been raised in regards to causation in light of the potential effect of the cocaine ingestion, and correspondingly, that the proper charge to the jury should include the availability of attempted murder. Such a charge would allow the jury to convict the accused even if it came to the conclusion that the shooting was not the cause of death. The Crown successfully objected based on its interpretation of the language of s. 662(3) of the Criminal Code, RSC, 1985, c C-46 [Criminal Code] and the trial judge declined to put the option of attempted murder to the jury. In so doing, he lamented that should he have made a mistake in not so instructing the jury, it would represent a fatal error. The accused was ultimately convicted of second degree murder.

On appeal, the Ontario Court of Appeal (“OCA”) concluded that the trial judge’s failure to include the availability of attempted murder in the charge, where it was reasonably available on the evidence, constituted a significant and reversible error, ruling out the availability of the curative proviso. In dissent, Moldaver J.A. (as he then was) found the error harmless in light of the reality that the jury’s endorsement of second-degree murder necessitated acceptance that causation had been proven beyond a reasonable doubt. As such, he would have applied the curative proviso and upheld the conviction.

The applicable law stems from s. 681(1) of the Criminal Code. The relevant provision holds that,

On the hearing of an appeal against a conviction…the court of appeal (a) may allow the appeal where it is of the opinion that…(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or…(b) may dismiss the appeal where…(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.

Thus, an appellate court may uphold a trial judgment notwithstanding an error of law, provided that the error did not constitute a substantial wrong or miscarriage of justice.

In a note to the SCC in his dissent, Moldaver J.A. proposed a relaxation of the curative proviso requirements, stating:

With respect, this is perhaps an area that the Supreme Court of Canada may wish to re-visit in view of the present-day complexity of the criminal law, the ever-increasing length of criminal trials, the practical difficulties involved in re-trying cases many years after the event, the added burden that lengthy re-trials place on an already overburdened justice system, the right of victims to closure, the interests of finality and the public’s overall confidence in the administration of justice.  Perhaps in light of these modern-day realities, a more holistic approach to the application of the proviso would be preferable to the existing ‘pigeon-hole’ model so that the proviso could be applied where an appellate court is satisfied that the evidence of guilt is very strong, although not quite overwhelming, and the legal error or errors, though not insignificant, are highly unlikely to have affected the result. [emphasis added]

Majority Decision

At the SCC, the Court upheld the OCA decision 5-3. Writing for Chief Justice McLachlin and Justices LeBel, Fish, Abella and Charron, Justice Binnie held that the trial judge’s error of omitting in the charge to the jury the option of “attempted murder” was not harmless because it would be impossible to determine whether the verdict would have ultimately been different if he had.  On the issue of causation, the majority held that, if the Crown pathologist’s testimony left the jury with a doubt, the appropriate verdict would have been the unavailable charge of attempted murder. Further citing the accused’s right to a properly instructed jury, the proviso was not applied and the case was sent back for retrial.

In response to the suggested amending of the curative proviso standard, Justice Binnie was both delicate and firm in dismissing Justice Moldaver’s proposals. Holding that the purpose of the curative proviso is to avoid unnecessary retrial while setting a high standard for the Crown’s burden to establish such prerequisites, the majority held that there was a substantial difference between “harmless” errors and errors that while “prejudicial, [are] not, in the after-the-fact opinion of the appellate court, so prejudicial as to have affected the outcome [of the case].” As such, the standard remains that the Crown must demonstrate an “overwhelming” case or a “harmless” error of law. Central to the majority’s decision was the assumption that the Crown pathologist’s admission that the blood clot could have resulted from cocaine ingestion could have raised a reasonable doubt in the jury’s mind, and that if attempted murder had been put to the jury, they may well have opted for it in light of a desire to convict, but an uncertainty on causation.

The majority also rested heavily on the trial judge’s statement that, should his decision not to put attempted murder to the jury be wrong it would be fatal, though as the dissent noted, this is not technically true.


In dissent, Justice Cromwell, on behalf of Justices Rothstein and Deschamps, effectively endorsed Justice Moldaver’s OCA reasons, holding that because the jury returned a guilty verdict for the more onerous charge of second degree murder, the failure of the trial judge to put attempted murder to the jury was harmless on the specific facts of the case, thereby justifying application of the curative proviso. Furthermore, Justice Cromwell implicitly chastised the majority for “[speculating] at the jury’s expense and [imputing] to jurors a subconscious failure to fulfill their sworn duty.”


Sarrazin is interesting because of what it says about the curative proviso, the Court’s attitude towards lay judging generally, and future implications of the Court’s changing composition.

As regards the curative proviso, the Court reaffirmed the high burden that exists upon the Crown to justify its application. The Crown must demonstrate either an “overwhelming” case or that the error was “harmless” for the proviso to be applied. That the Court reaffirmed such a high standard rather than endorsing the less onerous “very strong” standard espoused by Justice Moldaver is consistent with the general predisposition in the criminal law towards the accused. While Justice Moldaver is correct to raise modern concerns regarding judicial economy, given the predominance of the presumption of innocence, the power imbalance between the state and the individual, and the potential for wrongful conviction, the majority’s decision to maintain a high standard where a legal error has been made and a conviction secured is laudable.

More interesting is what Sarrazin says about our attitude towards lay judging generally. By effectively suggesting that the Crown pathologist’s admission should have raised a reasonable doubt and focusing on hypothetical concerns regarding what the lay jury would or would not have done had the charge of attempted murder been put to them, the majority revealed a serious tacit concern regarding the competence of lay judging. It is a fundamental assumption of our judicial system that lay juries apply a logical and reasoned approach to their duties. While it is illegal in Canada for jury members to comment publicly on the case after their verdict is delivered, the American experience suggests that often, the rationales behind a jury’s decision lie far from the reasoned, scrupulous, legal analysis the system theoretically assumes. The majority notes that, “the Crown took the position that the jury should be told to acquit the respondents if it had a reasonable doubt on the question of causation, a prospect which the jury may well have found disturbing.” In other words, had the jury felt the accused was “guilty” in the amorphous sense of being somehow blameworthy, but not guilty of first degree murder, they may have settled on the lesser, middle-ground charge of attempted murder.

The majority’s concerns are seemingly borne out by the American experience. If indeed this were the case, it would be wrong to condemn the accused to second degree murder simply to uphold the status quo. That said, the majority’s attitude has the potential to open Pandora’s box. The appropriateness and capability of lay juries is such a fundamental assumption of our justice system that the tacit concession that juries may function in anything less than a thorough, reasoned manner would cast doubt over the validity and legitimacy of our entire jury-trial system.

The dissent picks up on this point and drives it home for what is, technically, the logically consistent result. While it seems so obvious to a legally-trained mind that the Crown pathologist’s concession raised some semblance of doubt on the issue of causation, the fact remains that the jury’s returning of a second degree murder verdict absolutely necessitates that they were convinced of the charge beyond a reasonable doubt, technically rendering any lesser charge irrelevant.

Leonardo Da Vinci once wrote that the supreme misfortune in life is when theory outstrips reality. Sarrazin would seem to epitomize such a situation. A fundamental assumption of our common law heritage is the legitimacy of jury-decision making. While the American experience suggests such a presumption rests on shaky ground, abandoning it opens the door not just to claims of judicial elitism, but also to more systemic criticisms of the underpinnings of our justice system. The majority is to be commended for its willingness to wade into such territory given the predisposition in the criminal law towards the accused. Moreover, Justice Binnie does an excellent job trying to circumnavigate saying outright that the jury’s decision may exemplify the reality that juries act in a manner which falls far from the theoretical assumptions underlying their existence, noting that, “it is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of choices offered.” Nonetheless, the Sarrazin decision stands as a tacit admission of the gap between the theoretical underpinnings of our justice system and the likely reality.

Third, Sarrazin may offer an excellent insight into what the changing composition of the SCC will mean for the future of Canadian criminal jurisprudence. Recall that the out-going Justices Binnie and Charron were in the majority of a 5-3 decision. Add to that the reality that we know where Justice Moldaver falls on the case, and, were this case decided a year from now, the Court would be split 4-4, leaving the incoming Justice Karakatsanis the deciding vote. Likewise, given Justice Moldaver’s proposal to relax the burden on the Crown in light of concerns for judicial economy, Sarrazin would suggest that Moldaver’s appointment will indeed represent a strong voice in favour of a crime-control model of criminal process, in line with the Conservative government’s agenda to “get tough” on crime.

Lastly, and of peripheral interest, one cannot without reading the decision fully appreciate the extent to which Justice Binnie seemingly goes to avoid disrespecting the incoming Justice Moldaver. The unusual attentiveness he pays to a dissenting voice from a lower court, erstwhile maintaining a well-reasoned and written decision, will stand for future generations as a clear cut representation of both his capacity as a jurist, and his class as an individual. Undeniably, he will be missed.

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