Globe and Mail

Dozens of convictions jeopardized

By KIRK MAKIN
Globe and Mail
Tuesday, October 17, 2000

Toronto — Dozens of serious criminal convictions across the country could fall in the wake of a Supreme Court of Canada ruling that some judges have not been instructing juries properly about what constitutes reasonable doubt.

The court said jurors must be told they can find an accused person guilty "beyond a reasonable doubt" only if they are almost certain that he or she committed the offence.

In the ruling, released two weeks ago, the court ordered a new trial for Robert Dennis Starr. Mr. Starr was convicted of first-degree murder in the 1994 execution-style killings of Bernard Cook and Darlene Weselowski. He was sentenced to life in prison.

Mr. Cook — vice-president of the Manitoba Warriors gang — was believed to have been the target of a contract killing that arose from a feud involving drug deals.

"The reasonable likelihood that the jury applied the wrong standard of proof raises a realistic possibility that the accused's convictions constitute a miscarriage of justice," the Supreme Court ruled by a 5-4 majority.

With the significance of the ruling gradually sinking in, senior prosecutors across the country are feverishly conferring about how to contain the damage.

Mr. Starr's lawyer, Greg Brodsky, said Monday that any amount of prosecutorial chaos is worthwhile if it means getting innocent people out of prison.

"The Supreme Court is nervous that people are being convicted who ought not to be," Mr. Brodsky said in an interview. "We have to be sure we are convicting the guilty."

He said his client has already spent more than six years behind bars, four of which have been in solitary confinement at Manitoba's Stoney Mountain Institution.

Mr. Brodsky said there is no way to reliably estimate how many convictions could fall as a result of the ruling, but they will certainly run into the dozens and will include murder convictions.

"I have two or three myself, and I'm only one lawyer," he said. "We're talking about a lot of cases."

Mr. Brodsky said the ruling sends an unmistakable message to the judiciary that the reasonable-doubt concept amounts to nothing less than "magic words that have a very special legal connotation."

Among the repercussions of the Starr decision so far:

"Obviously, the ruling could have a pretty significant impact," Ontario Chief Justice Roy McMurtry said in an interview Monday. "A number of cases in the system could be affected by it. In fact, we are having a meeting of the court this afternoon, and I anticipate this will be discussed."

The Starr ruling was issued the day after former prime minister Pierre Trudeau died and alongside a pair of more high-profile judgments. It was entirely overlooked by the news media.

In the ruling, the Supreme Court majority identified three grounds for overturning Mr. Starr's convictions. The others involved the use of unacceptable hearsay evidence at the trial, as well as the use of identification evidence gained as a result of a hamhanded police photo lineup.

But the court said the flaws on the reasonable-doubt issue were alone sufficient to warrant a new trial. It said the jurors could easily have concluded that they need only feel Mr. Starr was guilty "on a balance of probabilities" to convict him.

The majority said trial judges should not use real-life analogies involving doubt in their instructions to juries, such as looking at an empty automobile gasoline gauge and reaching the "reasonable" conclusion that one's tank is empty.

It said the judge at the Starr trial "told the jury that they could convict on the basis of something less than absolute certainty of guilt, but did not explain, in essence, how much less."

Mr. Justice Frank Iacobucci wrote the majority judgment on behalf of Mr. Justice Jack Major, Mr. Justice Ian Binnie, Madam Justice Louise Arbour and Mr. Justice Louis LeBel.

In a strong dissenting opinion, Madam Justice Claire L'Heureux-Dube said the trial judge's instructions were flawed, but not intolerably so.

"Jurors are sophisticated persons who are instructed to listen to and follow the entirety of the judge's charge to them," she wrote. "We must assume that they do so.

"A jury charge is not a multiple-choice exam that can be marked by computer. Rather, it is akin to a work of literature that must be studied in its entirety in order to evaluate it as a whole."

The Starr case follows closely a 1998 Supreme Court decision in R. v Lifchus in which the court set guidelines for judges attempting to define "reasonable doubt."

Gary Trotter, a Queen's University law professor, said Monday there was a legal kerfuffle after the Lifchus ruling, but only a handful of cases ended up being overturned based on it.

He said that while the Starr ruling is undoubtedly important, Mr. Starr's trial was held before the release of the Lifchus ruling, so the trial judge did not have the advantage of reading it.

However, Mr. Brodsky said that in writing the Starr decision, the Supreme Court is clearly unhappy that some lower-court judges have not taken its Lifchus instructions seriously.

"Some of the trial judges and appellate courts just didn't get it," Mr. Brodsky said. "Now, they will."

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