SUPREME COURT OF CANADA
8 APRIL 2010
(with whom McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ. concurred, delivered the judgment of the court)
Restriction on Publication: Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. See the Youth Criminal Justice Act, S.C. 2002, c. 1, s. 110(1).
Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. See the Youth Criminal Justice Act, S.C. 2002, c. 1, s. 111(1).
Three young persons and two adults were charged for their participation in the kidnapping, rape, and brutal murder of 13-year‑old Nina Courtepatte. The two adults in the group, the appellant Michael Erin Briscoe and Joseph Wesley Laboucan, were charged jointly with kidnapping, aggravated sexual assault and first degree murder. Following their trial before a judge sitting without a jury, Mr. Laboucan was found guilty and Mr. Briscoe was acquitted on all charges (2007 ABQB 196, 413 A.R. 53). Mr. Laboucan successfully appealed his convictions to the Court of Appeal of Alberta and obtained an order for a new trial (2009 ABCA 7, 1 Alta. L.R. (5th) 264). On further appeal to this Court, the order was set aside and his convictions were restored (2010 SCC 12,  1 S.C.R. 397). This appeal relates solely to Mr. Briscoe. On appeal by the Crown, the Court of Appeal of Alberta overturned his acquittals and ordered a new trial (2008 ABCA 327, 95 Alta. L.R. (4th) 211). Mr. Briscoe now appeals to this Court.
For the reasons that follow, I would dismiss the appeal and uphold the order of a new trial on all charges.
The following summary of the facts reflects the findings of the trial judge.
Shortly after midnight on April 3, 2005, 13-year-old Nina Courtepatte and her young friend Ms. K.B. were lured, on the false promise of being taken to a party, into a car with Mr. Briscoe, who was 34 years old at the time, 19-year-old Mr. Laboucan, and three youths. Unbeknownst to Ms. Courtepatte and Ms. K.B., Mr. Laboucan had said earlier in the day that he would like to find someone to kill. It would appear that the idea had been generally well received and, after looking around the West Edmonton Mall for a potential victim, Mr. Laboucan and some of the others had chosen Ms. Courtepatte as the victim.
Mr. Briscoe drove the group to a secluded golf course. Everyone got out of the car. Mr. Briscoe opened the trunk and, at Mr. Laboucan's request, handed him some pliers. One of the youths, S.B., hid a wrench up her sleeve. A sledgehammer or mallet was also taken. Except for Mr. Briscoe, everyone started to walk down a path on the golf course. For the benefit of the unsuspecting Ms. Courtepatte and her friend Ms. K.B., Mr. Laboucan and some of the others pretended to be looking for the party.
At some point during the walk, Ms. S.B. struck Ms. Courtepatte from behind with the wrench. She cried out and ran to Mr. Laboucan. He whispered something that terrified her and she broke away, pleading with him not to make good on his threat. Around this time, Mr. Briscoe rejoined the group. For a moment, he held on to Ms. Courtepatte and angrily told her to be quiet or shut up. Mr. Laboucan then raped her. One of the youths, Mr. M.W., did the same. They then hit her in the head multiple times with the sledgehammer or mallet, and Mr. Laboucan choked her from behind with a wrench. Mr. Laboucan also directed another youth, Ms. D.T., to stab Ms. Courtepatte's throat with a throwing knife. She did. Mr. Briscoe stood by and watched the rape and murder. Ms. K.B. witnessed some of the gruesome events, but was physically unharmed. Ms. Courtepatte's badly beaten body was left behind on the golf course where it was discovered a day later.
What happened to Ms. Courtepatte was not the main question at trial. There was no real question about whether she had been a victim of a kidnapping, aggravated sexual assault, or culpable homicide. There was also no serious question that the homicide fell within the category of first degree murder, either because it was planned and deliberate, or because it was committed during the commission of a crime of domination within the meaning of s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46. The issue was whether each accused was involved and, if so, whether criminal liability flowed from this involvement.
The Crown's theory was that Mr. Laboucan was "the mastermind behind these offences" who had formulated the plan, selected the victim, and communicated the plan to the others. Mr. Briscoe's actions, carried out with knowledge of Mr. Laboucan's plan, made him a party to the offences. His participation included driving the group to and from the crime scene, choosing a secluded location, providing and transporting weapons, and taking "an active role" by holding Ms. Courtepatte and telling her to shut up, and threatening Ms. K.B. The Crown argued that Mr. Briscoe had actual knowledge of or was wilfully blind to the plan. The Crown also submitted that, even apart from Mr. Briscoe's acts of assistance, his presence coupled with his knowledge of the plan made him an abettor. His presence could lend courage to the attackers, discourage rescue, and give Ms. Courtepatte "one more reason to feel helpless and lost and futile" (J.R., vol. XIII, at pp. 169-73).
The trial judge essentially accepted the Crown's theory. He found that Mr. Laboucan had committed the offences as a principal offender and that Mr. Briscoe had aided in the commission of the crimes by doing four things: he "drove the group to the place" where the crimes were committed; he "selected a place to stop the characteristics of which facilitated" the commission of the crimes; he "opened the trunk of the car at Mr. Laboucan's request" and "gave him one of the tools that was taken to the grassy area, albeit a tool apparently not used to murder Ms. Courtepatte"; and he "angrily told Ms. Courtepatte to be quiet when she was screaming after Ms. S.B. hit her and before Mr. Laboucan sexually assaulted and murdered her" (para. 277). Therefore, the actus reus for being a party to the offences was proven.
The trial judge then examined whether Mr. Briscoe had the requisite mens rea for any of the offences. Did he intend to assist Mr. Laboucan in the commission of the crimes? In order to have such intention, he would have to have known of Mr. Laboucan's intention to commit each of the crimes. The crucial question then became whether he had such knowledge. The trial judge concluded that Mr. Briscoe did not have the requisite knowledge. Although Mr. Briscoe did not testify at trial, the Crown introduced statements he had made to the police following his arrest. The trial judge ruled the statements voluntary and relied heavily on their contents in concluding that Mr. Briscoe lacked the requisite knowledge. The following are relevant parts of the statements:
Mr. Briscoe acknowledged that he heard members of the group talking about killing people and became aware that one member of the group was carrying knives: J.R., vol. XV, at pp. 102 and 106. He wondered "when is this gonna happen" and worried that he was going to be killed: J.R., vol. XV, at p. 102.
While at the mall, Mr. Briscoe knew that Mr. Laboucan was looking for a girl to have sex with. He said: "I was more than happy to provide him with a chick so he don't take mine right?": J.R., vol. XV, at p. 128. He also said: "I ain't been screwing kids is not my piece of pie": J.R., vol. XV, at p. 126.
Before arriving at the golf course, he thought they "wanted to scare the shit out of" Ms. Courtepatte: J.R., vol. XV, at p. 108.
Later, when he parked outside the golf course, he knew something was going to happen, but did not want to know what it was: "whatever you guys wanna do just do it. Don't do it around me I don't want to see nothing I don't know what the fuck you're gonna do": J.R., vol. XV, at p. 106. Mr. Laboucan asked him for a pair of pliers, and he observed Mr. Laboucan taking "[s]ome kind of a pipe or something" from his trunk: J.R., vol. XV, at pp. 108‑9 and 162. He worried about his and his girlfriend's safety: J.R., vol. XV, at pp. 99 and 106.
After initially hanging back, he rejoined the group at the grassy area of the golf course, and witnessed the two other men raping Ms. Courtepatte and beating her to death: J.R., vol. XV, at pp. 107-8, 115, 117, 119, 122 and 147. He did not want to know what was happening: "That's what I seen. And I was like ahh fuck I don't wanna know": J.R., vol. XV, at p. 123.
Mr. Briscoe stated that he did not physically assault Ms. Courtepatte, but admitted to holding her at one point and telling her to shut up: J.R., vol. XV, at pp. 134, 146‑47, 164 and 171-172.
When asked about who knew during the drive out to the golf course what was going on, Mr. Briscoe asked, "Like, definitely for sure?" and then said, "I didn't know exactly what was goin' on": J.R., vol. XV, at pp. 191‑92.
In brief, the trial judge's conclusions on mens rea were the following. On the charge of kidnapping, despite finding that Mr. Briscoe knew that Mr. Laboucan intended to at least seriously scare Ms. Courtepatte, the trial judge determined that the evidence did not support the conclusion that Mr. Briscoe knew "Ms. Courtepatte and Ms. KB had been lured by fraud into his car" (paras. 283-84). On the charge of aggravated sexual assault, although Mr. Briscoe's "statement does suggest that he understood Mr. Laboucan anticipated to be sexually intimate with Ms. Courtepatte", there was "nothing to indicate he understood that Mr. Laboucan intended to sexually assault Ms. Courtepatte" (para. 285). Finally, on the charge of first degree murder, the trial judge held that "the evidence does not establish that he knew Mr. Laboucan in fact intended to kill Ms. Courtepatte. Further the evidence certainly does not establish that he himself had the requisite intent for murder" (para. 286). The trial judge concluded that, in these circumstances, the evidence was not sufficient to prove beyond a reasonable doubt "that Mr. Briscoe did any of the assistive things he did knowing, much less intending, that they would assist Mr. Laboucan" to commit any of the crimes (para. 287). The trial judge did not consider whether Mr. Briscoe was wilfully blind, despite the Crown's submissions. He acquitted Mr. Briscoe on all charges.
The Crown appealed Mr. Briscoe's acquittals to the Court of Appeal of Alberta. Writing for a unanimous court, Martin J.A. held that the trial judge erred in law by failing to consider whether Mr. Briscoe was "wilfully blind to the harm his cohorts intended to cause the victim" and that, "[b]ut for this error, the verdicts may well have been different" on all three charges (para. 41). The Court of Appeal set aside the acquittals and ordered a new trial on all charges. Mr. Briscoe now appeals to this Court.
Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators, aiders, and abettors equally liable:
The person who provides the gun, therefore, may be found guilty of the same offence as the one who pulls the trigger. The actus reus and mens rea for aiding or abetting, however, are distinct from those of the principal offence.
The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1)(b) means to assist or help the actor .... To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed": R. v. Greyeyes,  2 S.C.R. 825, at para. 26. The actus reus is not at issue in this appeal. As noted earlier, the Crown argued at trial that Mr. Briscoe was both an aider and an abettor. The trial judge's finding that Mr. Briscoe performed the four acts of assistance described above is not disputed.
Of course, doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attract criminal liability. As the Court of Appeal for Ontario wrote in R. v. F. W. Woolworth Co. (1974), 3 O.R. (2d) 629, "one does not render himself liable by renting or loaning a car for some legitimate business or recreational activity merely because the person to whom it is loaned or rented chooses in the course of his use to transport some stolen goods, or by renting a house for residential purposes to a tenant who surreptitiously uses it to store drugs" (p. 640). The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1)(b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.
The mens rea requirement reflected in the word "purpose" under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert,  2 S.C.R. 973, that "purpose" in s. 21(1)(b) should be understood as essentially synonymous with "intention". The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that "purpose" should not be interpreted as incorporating the notion of "desire" into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed (Hibbert, at para. 35). The Court held, at para. 32, that the perverse consequences that would flow from a "purpose equals desire" interpretation of s. 21(1)(b) were clearly illustrated by the following hypothetical situation described by Mewett and Manning:
If a man is approached by a friend who tells him that he is going to rob a bank and would like to use his car as the getaway vehicle for which he will pay him $100, when that person is .... charged under s. 21 for doing something for the purpose of aiding his friend to commit the offence, can he say "My purpose was not to aid the robbery but to make $100"? His argument would be that while he knew that he was helping the robbery, his desire was to obtain $100 and he did not care one way or the other whether the robbery was successful or not.
(A. W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at p. 112)
The same rationale applies regardless of the principal offence in question. Even in respect of murder, there is no "additional requirement that an aider or abettor subjectively approve of or desire the victim's death" (Hibbert, at para. 37 (emphasis deleted)).
As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense. Doherty J.A. in R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, provides the following useful explanation of the knowledge requirement which is entirely apposite to this case (at paras. 88-89):
.... a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required for murder under s. 229(a): R. v. Kirkness (1990), 60 C.C.C. (3d) 97 (S.C.C.) at 127.
The same analysis applies where it is alleged that the accused aided a perpetrator in the commission of a first degree murder that was planned and deliberate. The accused is liable as an aider only if the accused did something to assist the perpetrator in the planned and deliberate murder and if, when the aider rendered the assistance, he did so for the purpose of aiding the perpetrator in the commission of a planned and deliberate murder. Before the aider could be said to have the requisite purpose, the Crown must prove that the aider knew the murder was planned and deliberate. Whether the aider acquired that knowledge through actual involvement in the planning and deliberation or through some other means, is irrelevant to his or her culpability under s. 21(1).
It is important to note that Doherty J.A., in referring to this Court's decision in R. v. Kirkness,  3 S.C.R. 74, rightly states that the aider to a murder must "have known that the perpetrator had the intent required for murder". While some of the language in Kirkness may be read as requiring that the aider share the murderer's intention to kill the victim, the case must now be read in the light of the above-noted analysis in Hibbert. The perpetrator's intention to kill the victim must be known to the aider or abettor; it need not be shared. Kirkness should not be interpreted as requiring that the aider and abettor of a murder have the same mens rea as the actual killer. It is sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed.
Having set out the relevant legal principles for assessing the mens rea of a person charged with aiding and abetting murder, I now turn to Mr. Briscoe's main argument in this appeal: that the doctrine of wilful blindness should find no application in determining the requisite knowledge for murder, either as a principal or as an aider or abettor.
In essence, Mr. Briscoe argues that wilful blindness is but a heightened form of recklessness which is inconsistent with the very high mens rea standard for murder under s. 229(a) of the Criminal Code. He argues further that allowing fault for murder, as either a principal or party, to be established by wilful blindness could run afoul of the principle that "subjective foresight of death" is the minimum standard of fault for murder under s. 7 of the Canadian Charter of Rights and Freedoms: R. v. Martineau,  2 S.C.R. 633, at p. 645. The Court of Appeal rejected these arguments and, in my view, rightly so. As I will explain, wilful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accused's state of mind which must be undertaken to establish an aider or abettor's knowledge.
Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen,  1 S.C.R. 570, and R. v. Jorgensen,  4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?"
Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):
.... while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry.
It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:
The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.
(Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited in Sansregret, at p. 586).)
Professor Don Stuart makes the useful observation that the expression "deliberate ignorance" seems more descriptive than "wilful blindness", as it connotes "an actual process of suppressing a suspicion". Properly understood in this way, "the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused's mind" (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart's words, "deliberate ignorance".
In this case, I agree with Martin J.A. that the trial judge erred in law by failing to consider wilful blindness. As he noted, even Mr. Briscoe's own statements to the police suggest that he had a "strong, well-founded suspicion that someone would be killed at the golf course" (para. 30) and that he may have been wilfully blind to the kidnapping and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. As he put it, "whatever you guys wanna do just do it. Don't do it around me I don't want to see nothing I don't know what the fuck you're gonna do." The trial judge relied heavily upon the statements in his reasons but did not refer to the doctrine of wilful blindness. Of course, whether Mr. Briscoe had the requisite mens rea for the three offences was a question for the trier of fact, and Mr. Briscoe is entitled to the benefit of any reasonable doubt on this issue. However, from a legal standpoint, it is my respectful view that the evidence cried out for an analysis on wilful blindness. In these circumstances, the Court of Appeal rightly concluded that the trial judge's failure to consider Mr. Briscoe's knowledge from that perspective constitutes a legal error which necessitates a new trial on all charges.
In my view, the Crown has met its heavy onus on appealing an acquittal of showing that the errors of the trial judge "might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal" on the three charges: R. v. Graveline, 2006 SCC 16,  1 S.C.R. 609, at para. 14 (per Fish J.). Consequently, I would dismiss the appeal and confirm the order for a new trial.
- vs -
8 APRIL 2010
(with whom McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ. concurred, delivered the judgment of the court)
Following his trial by judge alone, the respondent Joseph Wesley Laboucan was convicted of kidnapping, aggravated sexual assault, and first degree murder: 2007 ABQB 196, 413 A.R. 53 (sub nom. R. v. Briscoe). This appeal as of right raises the sole issue of whether the trial judge erred in law by rejecting Mr. Laboucan's testimony, in part, on the basis of his motive to lie because of his interest in securing an acquittal. The Alberta Court of Appeal was divided on this question (2009 ABCA 7, 1 Alta. L.R. (5th) 264), with the majority finding that the trial judge's reference to Mr. Laboucan's "very great motive to be untruthful" presumed his guilt, thereby revealing a fatal flaw which necessitated a new trial. Rowbotham J.A. dissented. In her view, the impugned passage, when read in context, did not constitute error.
I would allow the appeal. While the language used by the trial judge in referring to the accused's motive undoubtedly raises concern, it cannot be considered in isolation. When considered in context, I am satisfied that the reasons were responsive to the issues raised in this joint trial, where the testimony of every principal witness was challenged by Mr. Laboucan on the ground that he or she had a motive to fabricate the evidence against him. When the trial judge's reasons are read as a whole, I am satisfied that, on the crucial question of Mr. Laboucan's credibility, he did not proceed on the basis of the impermissible assumption that the accused, because of his status as an accused, would lie to secure an acquittal.
2. The Facts and Judicial History
For the purposes of this appeal, a brief account of the facts will suffice. Shortly after midnight on April 3, 2005, 13-year-old Nina Courtepatte and her friend, Ms. K.B., were lured from West Edmonton Mall on the false promise of being taken to a party. The two young girls got into a car with five individuals: Mr. Laboucan, his co‑accused Michael Erin Briscoe, and three youths, Mr. M.W., Ms. S.B. and Ms. D.T. Mr. Briscoe drove the group to an isolated golf course. While they were walking down a gravel path and onto a fairway, Ms. S.B. hit Nina with a wrench, causing her to fall. Nina was then held down, sexually assaulted by Mr. Laboucan and Mr. M.W., and beaten to death. Nina's friend, Ms. K.B., was not assaulted.
All five individuals whom Nina and her friend joined that fateful night were charged with kidnapping, aggravated sexual assault, and first degree murder. The two adults in the group, Mr. Laboucan and Mr. Briscoe, were jointly charged and tried together in this proceeding by a judge sitting without a jury. The three youths, Mr. M.W., Ms. S.B., and Ms. D.T., were charged separately. At the time of the joint trial, Mr. M.W. had pleaded guilty and was awaiting sentencing. The other youths were yet to be tried. Except for Mr. Briscoe, all charged individuals testified at the trial, as did Ms. K.B., giving various accounts of the tragic events.
During his testimony at trial, Mr. Laboucan admitted that he was present when the victim was kidnapped, sexually assaulted and murdered, but denied participating in any of those crimes. It was his position that the testimony of the other witnesses inculpating him had been fabricated for reasons of "jealousy, a desire for revenge, or a desire to avoid responsibility for their own actions" (trial judgment, at para. 201).
DNA and other forensic evidence was not conclusive insofar as it related to the two accused before the court. Credibility of the witnesses, including Mr. Laboucan, was, therefore, of central importance in the trial.
The trial judge provided lengthy and detailed reasons for judgment. In this appeal, we are concerned solely with the assessment of Mr. Laboucan's credibility and the role it played in arriving at a verdict of guilt. After outlining the approach set out in R. v. W. (D.),  1 S.C.R. 742, the trial judge concluded at the first stage of the W. (D.) analysis, that he disbelieved Mr. Laboucan. In giving his reasons for disbelieving him, the trial judge made reference to Mr. Laboucan's motive to lie in these terms [para. 202]:
I summarized Mr. Laboucan's testimony in paragraphs  to  above. Having carefully considered it, I have concluded that I do not believe Mr. Laboucan. My reasons for this conclusion are:
For the same reasons, the trial judge concluded that Mr. Laboucan's evidence did not leave him in a reasonable doubt about his involvement in the crimes with which he was charged (para. 203). He proceeded to determine which evidence he did believe. Based on that evidence, the trial judge was satisfied beyond a reasonable doubt that the Crown had proven each element of the offences charged. He therefore convicted Mr. Laboucan on all charges.
On his appeal to the Alberta Court of Appeal, Mr. Laboucan argued that the trial judge erred in his assessment of credibility. Berger and Slatter JJ.A. agreed. They were of the view that the impugned reference to Mr. Laboucan's motive to be untruthful revealed a fatal flaw in the trial judge's reasoning. "To isolate this Appellant as having a very great intent to fabricate pre-supposes diminished credibility on his part on the basis only of his status as an accused who testified at his own trial" (para. 21). Having proceeded on the prohibited assumption that the accused will lie to secure his acquittal, the trial judge's approach effectively undermined the presumption of innocence and, as such, his error could not be saved by the curative provision. The majority therefore allowed Mr. Laboucan's appeal, set aside his convictions, and ordered a new trial.
Rowbotham J.A., in dissent, would have dismissed the appeal. When considered in the context of the issues at trial, the other reasons for disbelieving Mr. Laboucan, and the reasons as a whole, including the trial judge's careful and thorough analysis of the principles in W. (D.), it was her view that the impugned passage revealed no error. The Crown appeals to this Court as of right.
The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witness's testimony. A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going to credibility. For example, it would be improper to base a finding of credibility regarding a parent's or a spouse's testimony solely on the basis of the witness's relationship to the complainant or to the accused. Regard should be given to all relevant factors in assessing credibility.
The common sense proposition that a witness's interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. The concern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused has a greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. In R. v. B. (L.) (1993), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherent danger in considering the accused's motive arising from his or her interest in the outcome of the trial. In an often-quoted passage, she stated as follows (at pp. 798-99):
It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest in the outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have to testify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be acquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused's interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for a lie, however, cannot be turned into an assumption that one will occur.
Counsel for Mr. Laboucan argues that it is inherently wrong in every case to consider an accused's interest in the outcome of the trial, as no useful inference can be drawn from that fact. She therefore urges the Court to adopt an absolute prohibition against considering the accused's motive to lie in assessing his or her credibility as a witness.
In most cases, I would agree with counsel that this factor is simply unhelpful and, as a general rule, triers of fact would be well advised to avoid that path altogether, lest they unwittingly err by making the impermissible assumption that the accused will lie to secure an acquittal. However, I would not adopt an absolute rule as proposed, for the following reasons.
An absolute rule prohibiting the trier of fact from considering that an accused may have a motive to lie in order to secure an acquittal, regardless of the circumstances, would artificially immunize the accused in a manner inconsistent with other rules of evidence that provide special protection to the accused. Courts have consistently rejected prohibitive rules that would result in a trier of fact acting upon a misleading view of a case. For example, there is a general rule prohibiting the Crown from introducing evidence about the accused's bad character. However, in McMillan v. The Queen,  2 S.C.R. 824, where the accused called evidence that his wife was psychopathic, making her the likely killer of an infant, the Court held that the Crown could adduce evidence of the accused's similar disposition. Otherwise the jury would have been left with an entirely distorted picture. Similarly, in R. v. Corbett,  1 S.C.R. 670, where the defence had vigorously attacked the credibility of the Crown witnesses, making much of their criminal records, Dickson C.J. held that "a serious imbalance would have arisen" had the jury not been apprised of the accused's criminal record (p. 690). This opened up the opportunity for a more extensive cross-examination on the accused's criminal record that might otherwise be viewed as unduly prejudicial. Therefore, whether or not it is appropriate for the trier of fact to consider that the accused may have a motive to lie because of his or her interest in the trial will depend on the evidence and the issues raised at trial.
An absolute rule as proposed would also be contrary to established principles of appellate review. It should now be regarded as trite law that a trial judge's reasons should be read as a whole, in the context of the evidence, the issues and the arguments at trial, together with "an appreciation of the purposes or functions for which they are delivered": R. v. R.E.M., 2008 SCC 51,  3 S.C.R. 3, at para. 16. Consistent with this approach, courts have not held that the trial judge commits an error of law simply by making reference to or taking account of an accused's motive to lie. It all depends on the context: R. v. Murray (1997), 115 C.C.C. (3d) 225 (Ont. C.A.), at pp. 230-31; R. v. Poitras (2002), 57 O.R. (3d) 538 (C.A.), at paras. 15-19; R. v. D. (S.), 2007 ONCA 243, 218 C.C.C. (3d) 323, at para. 37; R. v. Parnell (1995), 59 B.C.A.C. 291, at paras. 42-43; R. v. Silverquill, 1999 BCCA 128, 121 B.C.A.C. 126, at paras. 14-18; R. v. Khuc, 2000 BCCA 20, 132 B.C.A.C. 139, at para. 35; R. v. Green, 2002 BCCA 269 (CanLII), at paras. 11-12.
In reviewing a trial judge's reasons for disbelieving the accused, a court should also be mindful of the useful distinction drawn by Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), where he cautioned against reading a trial judge's reasons as if they were an instruction to a jury. The Court has repeatedly endorsed his observations (at p. 204):
A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road‑map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict.
See for example R.E.M., at para. 18 and R. v. C.L.Y., 2008 SCC 2,  1 S.C.R. 5, at para. 11, where Abella J. has endorsed this approach. Of course, it may be clear that a judge, in part of the reasons, is in fact describing the road-map or process he or she engaged in. Again here, any impugned passage in a trial judge's reasons must be read in the context of the entire reasons.
It follows from these principles that the trial judge's consideration of Mr. Laboucan's "very great motive to be untruthful" must be placed within the context of the trial and the reasons as a whole. At the end of the day, the determining question is whether the trial judge's comments undermined the presumption of innocence. The majority in the Court of Appeal concluded that they did. I disagree. In my respectful view, the majority erred by effectively considering the impugned statement in isolation. As I read their reasons, the fact that "[t]he motivation was described as a motivation to be untruthful, not simply a motivation to be acquitted" (para. 22) effectively drove their conclusion. It mattered not what the trial judge wrote elsewhere in his reasons or in what context the words were chosen. In their view, the reference to the accused's motivation to be untruthful, as opposed to his motivation to secure an acquittal, was irreconcilable with the teachings in W. (D.) and "constituted a material flaw in the assessment of credibility bearing upon the substance of the judgment" (para. 31).
As I indicated at the outset, I agree with Rowbotham J.A.'s conclusion that the trial judge committed no error. I am also in substantial agreement with her analysis. In my view, she considered the impugned comments in their appropriate context. In the "road-map" part of the judgment where the trial judge instructed himself on the law, she noted that he correctly instructed himself as to the applicable W. (D.) principles and the burden of proof. Therefore, this is not a situation where the reviewing court has to rely on the presumption that the trial judge knows the law on credibility. His reasons make it clear that he did. The trial judge then faithfully followed the principles he had set out in analysing the evidence.
Rowbotham J.A. then reviewed at some length the numerous reasons given by the trial judge for disbelieving the accused's testimony, at paras. 50-58. I need not repeat those reasons here. They are numerous and well founded in the evidence. They include: material inconsistencies between Mr. Laboucan's evidence at trial and his evidence given at a preliminary inquiry; further inconsistencies between his evidence at trial and that given in statements to police; his admission that he had made up an elaborate fiction concerning a murder he had witnessed, where he implicated real people even though they had no involvement whatsoever in the actual murder at which he was present; the fact that there was no medical evidence to support his claim that he entered into a state of shock which prevented him from responding to the events at the scene; and the stark conflict between his evidence and the evidence of every other witness present at the scene.
Finally, Rowbotham J.A. held that the comparison to the motivations of the witnesses in para. 202(e) was entirely appropriate in this case, given the defence position at trial. In my view, the defence position is a very important contextual factor that explains the language used by the trial judge. Central to this trial was the fact that the credibility of each of the main witnesses was challenged by Mr. Laboucan on the basis that they had a motive to lie and fabricate evidence against him, either to exculpate themselves in other proceedings or to minimize their participation in the crime. The trial judge was appropriately mindful of the defence position throughout his review of their evidence.
In these circumstances, where the defence theory rested on the contention that each witness who implicated Mr. Laboucan lied out of self-interest, it was entirely appropriate for the trial judge to consider that the witnesses would have had no, or less reason, to be untruthful on particular points of evidence in respect of which Mr. Laboucan provided radically inconsistent testimony. The trial judge's careful and detailed review of the evidence belies any contention that Mr. Laboucan's testimony was inappropriately isolated and subjected to greater scrutiny than the other witnesses on the basis of his status as an accused. Further, Mr. Laboucan's testimony and position regarding the witnesses had implications for the co-accused, Mr. Briscoe. Therefore, unlike Rowbotham J.A. who concluded that the impugned comments were "harmless and unnecessary" (para. 63), it is my view that, within the context of this trial, it was a crucial and unavoidable aspect of determining the credibility issues that the trial judge consider Mr. Laboucan's own motives.
As stated at the outset, while some of the language used by the trial judge in his reasons may give cause for concern when viewed in isolation, when the reasons are read in their entirety and in the light of the context of the trial as a whole, they reveal that the trial judge properly assessed and weighed the evidence of all the witnesses, including the accused, without undermining the presumption of innocence or the burden of proof.
For these reasons, I would allow the appeal, set aside the order for a new trial, and restore the convictions.
First reported case
Alexander D. Pringle, Q.C., Anna Konye and Daniel Chivers (instructed by Messrs Pringle, Peterson, MacDonald & Bottos, Edmonton), for the appellant.
James C. Robb, Q.C., and Tamara Friese (instructed by Attorney General of Alberta, Edmonton)n, for the respondent.
Jennifer M. Woollcombe (instructed by Attorney General of Ontario, Toronto), for the intervener.
Second reported case
James C. Robb, Q.C., and Tamara Friesen (instructed by Attorney General of Alberta, Edmonton), for the appellant.
Laura K. Stevens, Q.C. (instructed by Messrs Dawson Stevens & Shaigec, Edmonton), for the respondent.
all rights reserved