Court of Appeal
Decision Information
Summary: Accused did not testify while on trial in Pond Inlet for sexual assault. Case rested on jury's assessment of complainant's credibility. Accused alleges trial judge in Pond Inlet made errors in jury charge in part by using phrases "morally certain" and "feel sure," which misled jury as to burden of proof and correct standard to apply. Court of Appeal applied principles of reviewing jury charges: assess as a whole not isolated fragments, use functional analysis in context of the trial, do not look for sacred formula of words. Court found that even though accused did not testify, the model charge used was adequate and was further reinforced by opening instructions in short trial. Mere use of phrases that case law states should be avoided did not require reversal. There was no reversible error in jury charge as a whole.
Decision: Appeal dismissed
Appeal: Trial judge erred in his charge to the jury so as to mislead jury on the burden of proof and the correct standard to apply
Subjects: Criminal law - Juries - Charge to jury
Decision Content
IN THE COURT OF APPEAL FOR THE NORTHWEST TERRITORIES YELLOWKNIFE CRIMINAL SITTINGS HEARD OCTOBER 15, 1997 COUNSEL TRIAL JUDGE COURT MITUSALIE ATAGOOTAK J. D. Brydon Richard, J. Fraser, C.J. Vertes, J.A. Appellant Sulatycky, J.A. - and - HER MAJESTY THE QUEEN S. R. Creagh Respondent APPEAL #CA 00636 MEMORANDUM OF JUDGMENT DELIVERED FROM THE BENCH VERTES J.A. (for the Court): The appellant appeals his conviction on a charge under s.272(a) of the Criminal Code after trial by judge and jury in Pond Inlet. He complains about some alleged errors in the judge=s charge. The trial was relatively short and straightforward. The case rested on the jury=s assessment of the complainant=s credibility. The defence did not call evidence. We remind ourselves of certain principles, all well-known, to be applied on a review of a jury charge. First, and foremost, the charge must be assessed as a whole and not in isolated fragments. There must be a functional analysis in the context of the trial. There is no sacred formula of words that a judge must use. The law requires a properly instructed jury, not a perfectly instructed one. We have reviewed the judge=s charge in this case and find it, on the whole, to be a satisfactory exposition of what the jury should be told. In our opinion, the jury could not have been under any misapprehension as to the burden of proof and the correct standard to apply. We are reinforced in this conclusion when we also examine the opening instructions given by the trial judge at the start of this short trial. We do not agree that in this case, where the accused did not testify, that the trial judge ought to have devised some sort of variation of the model charge set forth in R v W.(D), [1991] 1 S.C.R. 742. Nor do we think that the jury could have misunderstood that they must base their verdict on an assessment of all of the evidence. Finally, in the circumstances of this case and in the context of the whole charge, we do not find reversible error in the trial judge=s use of the phrases Amorally certain@ and Afeel sure@ in his explanation of proof beyond a reasonable doubt. We recognize that R. v Lifchus, released by the Supreme Court less than one month ago, ruled that such phrases should be avoided. In this case, however, the trial judge covered the necessary elements identified in Lifchus. We do not read that case as requiring reversal merely because of the use of these phrases. For these reasons, the appeal is dismissed. CA 00636 IN THE COURT OF APPEAL FOR THE NORTHWEST TERRITORIES BETWEEN: MITUSALIE ATAGOOTAK Appellant - and - HER MAJESTY THE QUEEN Respondent MEMORANDUM OF JUDGMENT DELIVERED FROM THE BENCH