



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486(1), (2), or (3)
    of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.   
    (1)
Any
    proceedings against an accused shall be held in open court, but the presiding
    judge or justice may order the exclusion of all or any members of the public
    from the court room for all or part of the proceedings if the judge or justice
    is of the opinion that such an order is in the interest of public morals, the
    maintenance of order or the proper administration of justice or is necessary to
    prevent injury to international relations or national defence or national
    security.

(2)
For the purpose of subsection
    (1), the proper administration of justice includes ensuring that.

(a)     the interests
    of the witnesses under the age of eighteen years   are safeguarded in all
    proceedings; and

(b)     justice
    system participants who are involved in the proceedings are protected.

(3)
If an accused is charged with
    an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or
    (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the
    prosecutor or the accused applies for an order under subsection (1), the judge
    or justice shall, if no such order is made, state, reference to the
    circumstances of the case, the reason for not making an order.  R.S., c. C-34,
    s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25;
    R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s.
    9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29;
    2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s.
    15; 2005, c. 43, ss. 4 and 8(3)(a).




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. J.S., 2012
    ONCA 271

DATE: 20120426

DOCKET: C52031

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J. S.

Appellant

Julie Santarossa and Brian Snell, for the appellant

Susan Ficek, for the respondent

Heard and released orally: April 4, 2012

On appeal from the conviction entered on June 19, 2009 by
    Justice Terrence A. Platana of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

A jury found the appellant guilty of a single count of sexual assault.
    He appeals his conviction on two grounds.  We would give effect to neither.

The
    First Ground:  The Instructions on Reasonable Doubt

[2]

The first ground of appeal alleges error in the trial judges
    instructions on reasonable doubt. To be more specific, the appellant says that,
    towards the conclusion of his final instructions, the trial judge combined an
    improper definition of reasonable doubt with a reference to a timid juror and
    to morality-laden language frequently criticized by appellate courts.

[3]

The instructions to which objection is taken were given towards the
    end of the charge, the trial judge said:

Let me repeat what I said to you earlier about reasonable
    doubt.  If you feel sure of the guilt of the accused, if it satisfies your mind
    and satisfies your conscience as a juror, then you can act upon that aspect of
    reasonable doubt.  It has to be based on the evidence and not something that
    you simply conjure up because you are too timid to make a decision in this case
    and it has to be of course in relation to one of the essential elements.

[4]

Short-form instructions on the standard of proof are, at best,
    problematic,  all the more so when given at or near the conclusion of a jury
    charge.  If a trial judge considers it appropriate to return to the subjects of
    the onus and standard of proof, and the meaning to be assigned to the phrase proof
    beyond a reasonable doubt as final instructions draw to their close, those
    instructions ought follow the
Lifchus
[1]

model, not some incomplete paraphrase of it.

[5]

Despite the incompleteness of the excerpted parts of the final
    instructions on the standard of proof and the references to timid jurors and
    what is characterized as morality-laden language, we would not give effect to
    this ground of appeal.

[6]

On their own, the references to timidity and to conscience are not
    fatal.  They should not have been said, but their mere iteration is not a
    sufficient basis on which we should interfere.

[7]

The appellant also contends that the jurors were not properly instructed
    on the onus and standard of proof, including the meaning to be assigned to
    proof beyond a reasonable doubt,
[2]
in preliminary instructions at the beginning of the trial, and again in the
    charge.

[8]

As we are required to do, we have considered the instructions on the
    onus and standard of proof as a whole, and have concluded that, despite the
    impugned passages, there is no reasonable likelihood that the jurors would have
    been under any misapprehension of the standard of proof required to find the
    appellant guilty of the offence charged.

[9]

The earlier instructions, given twice, were fully compliant with
Lifchus
.
They explained the meaning to be
    assigned to proof beyond a reasonable doubt, including its equivalence with
    being sure about guilt. As
Lifchus
points out, the reference to feeling
    sure as a basis for conviction, is problematic only where the standard of
    proof is otherwise unexplained. That is not this case.

The
    Second Ground:  Jury Vetting

[10]

The
    second ground of appeal concerns the integrity of the jury selection process.

[11]

Shortly
    before jury selection began, Crown counsel at trial provided defence counsel
    with an annotated list of jurors from which the jury was to be selected. The additional
    information provided was more extensive than simply the criminal records of the
    prospective jurors. During the selection process, neither party used up all their
    peremptory challenges.

[12]

The
    argument advanced here is that we should distinguish this case from our earlier
    authorities because of the more extensive and intrusive information obtained
    about prospective jurors, the lateness of its disclosure to defence counsel,
    and the failure of the prosecutor to correct some of the trial judges comments
    about the lack of knowledge of jurors background in his opening instructions
    about the selection process.

[13]

We
    would not give effect to this ground of appeal.

[14]

In
    this case, the appellants trial counsel was supplied with the same material as
    the prosecutor. Apprised of this information, trial counsel for the appellant
    chose not to use it in jury selection. We are not prepared to say that the
    differences in the nature and extent of information obtained, the time of its
    disclosure, or the discrepancy between what the judge told the jury in opening
    and the reality of which the trial judge was likely unaware, caused the
    appellant any miscarriage of justice.

[15]

The
    appeal is dismissed.

Winkler C.J.O.

John Laskin J.A.

David Watt J.A.





[1]

R. v. Lifchus
, [1997] 3 S.C.R. 320.



[2]
The principal complaint, that the trial judge erred by failing to instruct the
    jury expressly that proof beyond a reasonable doubt is much closer to absolute
    certainty than to balance of probabilities, has already been rejected by this
    court in
R. v. Zebedee
(2006), 211 C.C.C. (3d) 199.


