Getting “Beyond a Reasonable Doubt”: R v CLY
The Supreme Court of Canada’s (“SCC”) recent decision in R v CLY, 2008 SCC 2, should help clarify some of the substantive implications of the standard burden of proof in criminal proceedings. True to form, however, the court’s judgment in CLY – a unanimous decision, but one punctuated by conflicting concurring reasons – has also created considerable amount of ambiguity.
A teenager between the ages of 16-18, “CLY” was charged with three counts of sexual assault based on allegations that he had inappropriately touched a girl aged six to eight while babysitting her. CLY denied all such allegations. At trial, the evidence he brought was rejected, and he was convicted on two of the three counts and received a probationary sentence of 18 months. The decision of the trial judge was subsequently upheld by a majority of the Manitoba Court of Appeal in R v Y(CL), 2006 MBCA 124.
The appellate court rejected CLY’s argument that the trial judge’s reasons disclosed that, by appraising the evidence of CLY’s accuser prior to his own evidence, the judge had inappropriately shifted the burden of proof. In a dissenting opinion, however, Twaddle J.A. found that despite the trial judge’s insistence to the contrary, the judge’s actions had produced a “subtle shift” in the onus of proof. “Having accepted the complainant’s evidence,” the dissenting judge reasoned, “the trial judge will inevitably find the accused’s evidence less believable than it would have been before the complainant’s evidence was accepted.” The matter eventually proceeded to the Supreme Court of Canada.
The SCC’s Decision: A Single Verdict with Different Reasons
Unlike the appellant court, the Supreme Court of Canada unanimously voted to allow the appeal, quashing the conviction and requiring a new trial. That the Supreme Court was united in its verdict, however, is not to say that the court was of one mind.
What the Court Agreed On
The first issue before the Supreme Court was the legitimacy of the trial judge`s dismissal of the evidence brought by the accused. On this issue, which was ultimately responsible for the decision to allow the appeal, Abella J. referred to “fundamental misapprehensions and mischaracterizations of the evidence leading to the convictions.” The trial judge’s finding that CLY’s evidence did not raise a reasonable doubt was primarily based on what she said were two features of his evidence, first, CLY’s reluctance to admit to any tickling, and second, the “surprising amount of detail” he recalled. After a close reading of the trial judge’s decision, Abella J. concluded that there was “no support in the transcript for the trial judge’s conclusion that C.L.Y. ‘was very loathe to admit to the possibility that there might have been any tickling at all, even of an innocuous variety.'”
Such a “material misapprehension of evidence,” Abella J. continued, can be sufficient to “justify appellate intervention.” That said, she was quick to qualify her conclusion with an affirmation of the primacy of the trial judge in assessing the credibility of evidence. Nevertheless, the fact remained that “the trial judge’s bases for disbelieving C.L.Y. rested on misapprehensions of his evidence and played a critical role in the convictions, rendering them insupportable.”
What the Court Disagreed On
Although they agreed that the trial judge’s decision disclosed a material misapprehension of evidence, Abella J. and Fish J. disagreed over whether the trial judge applied the correct burden of proof. Drawing on R v Morin,  2 SCR 345, Abella J. (for the majority) identified the appropriate line of inquiry in this regard as “whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused.” She then proceeded to consider the three part test for assessing the trier of fact’s apprehension of the principle of reasonable doubt, as set out in R v W(D),  1 SCR 742 [W(D)]:
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. (758)
Drawing on Cory J.’s decision in R v S(WD),  3 SCR 521, however, Abella J. added the important qualification that in applying the W(D) test, “the key is whether the correct burden and standard of proof were applied, not what words were used in applying them.” In Abella J.’s view, there was “no blueprint for error in the trial judge’s failure to observe W.(D.) as a catechism.” On her reading of the trial judge’s reading, it was clear that “she understood that a finding that the girl was credible did not mean that the onus shifted to the accused to show that he was not guilty.” Accordingly, Abella J. concluded that the trial judge’s reasons did not “undermine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramount legal principle like reasonable doubt.”
In a separate concurring opinion, Fish J. took issue with this finding, echoing the objections raised by Twaddle J.A. (the dissenting judge in the Manitoba Court of Appeal). In Justice Fish’s view, the reference in the trial judge’s decision to the analytical framework set out in W(D) was of little consequence. In the context of this particular case, Fish J. continued, strict adherence to the W(D) formula was especially important: “The very purpose of adhering to the procedure set out in R. v. W.(D.) is to foreclose an inadvertent shifting of the burden of proof where the complainant and the accused have both testified and the outcome of the trial turns on their credibility as witnesses.”
By affirming the credibility of the complainant’s testimony before making any reference to CLY’s contrary evidence, the trial judge, in Fish J.’s view, effectively prejudged the matter. “As a matter of law,” he explained, “the appellant was presumed innocent; as a matter of fact, his fate had been sealed without any consideration at all of his evidence under oath at trial.” Inherent in finding the complainant’s evidence credible absent any consideration of the accused’s evidence was a presumption on the trial judge’s part that the accused’s own evidence was false.
The Relationship Between Judges and Their Reasons
Both Abella J. and Fish J. referred to R v Morrissey (1995), 22 OR (3d) 514 (CA) [Morrissey], in which the Ontario Court of Appeal found that a trial judge’s reasons “should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict.” That said, a judge’s reasons provide the only real glimpse into the mechanics of judicial decision making. Bearing the holding in Morrissey in mind, the difference in opinion between Fish and Abella JJ. seems to be informed by the different interpretative approaches that each appellate judge takes to the trial judge’s decision.
Abella J. appears to privilege the text of the trial judge’s reasons, ultimately finding the trial judge’s reference to W(D) to be sufficient. By contrast, Fish J. gives less weight to the trial judge’s reference to the W(D) framework, instead focusing on the sequence of the evidence considered in the trial judge’s decision which, in his opinion, occasions a departure from the standard burden of proof.