R. v. Rowbotham; R. v. Roblin,  2 S.C.R. 463
and David Roblin Appellants
Her Majesty The Queen Respondent
Indexed as: R. v. Rowbotham; R. v. Roblin
File Nos.: 23302, 23300.
Hearing and judgment: December 8, 1993.
Additional reasons delivered: June 23, 1994.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Major JJ.
additional reasons for judgment
Criminal law ‑‑ Jury ‑‑ Directed verdict ‑‑ Jury reluctant to accede to trial judge's direction to enter verdict of not guilty ‑‑ Supreme Court of Canada recommending that procedure for directed verdicts be modified.
The common law procedure with respect to directed verdicts should be modified: in instances where in the past the trial judge would have directed the jury to return a verdict of not guilty, the trial judge should now withdraw the case from the jury and enter an acquittal. While concerns about judicial abuses of authority may have originally justified the traditional procedure, they are no longer relevant. Furthermore, there are considerable policy justifications for reforming the procedure.
Referred to: Walker v. The King,  S.C.R. 214; R. v. Steele (1939), 73 C.C.C. 147; R. v. Jans (1946), 87 C.C.C. 76; R. v. Boyer,  1 C.C.C. 106, leave to appeal refused  S.C.R. vii; R. v. Charlesworth (1861), 31 L.J.M.C. 25; Wills & Sons v. McSherry,  1 K.B. 20; Bremer Handelsgesellschaft m.b.H. v. Vanden Avenne‑Izegem P.V.B.A.,  1 Lloyd's Rep. 133; United States of America v. Shephard,  2 S.C.R. 1067; R. v. Chrétien (1989), 70 C.R. (3d) 43.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 11(f).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 536 [rep. & sub. c. 27 (1st Supp.), s. 96], 606(4) [idem, s. 125], 672, 676(1)(a).
Canada. Law Reform Commission. Working Paper 63. Double Jeopardy, Pleas and Verdicts. Ottawa: The Commission, 1991.
Canada. Law Reform Commission. Working Paper 27. The Jury in Criminal Trials. Ottawa: Minister of Supply and Services, 1980.
ADDITIONAL REASONS to a judgment of the Supreme Court of Canada,  4 S.C.R. 834, affirming a judgment of the Ontario Court of Appeal (1992), 60 O.A.C. 75, 76 C.C.C. (3d) 542, setting aside the accused's acquittals and ordering a new trial.
Philip Campbell and Delmar Doucette, for the appellants.
D. D. Graham Reynolds, Q.C., and David Littlefield, for the respondent.
The additional reasons of the Court were delivered by
Lamer C.J. --
On December 8, 1993, this Court handed down judgment from the bench in this case:  4 S.C.R. 834. However, we reserved the right to hand down additional reasons as regards the procedure to be followed when a trial judge rules that there is no evidence upon which a jury properly instructed may convict and so allows a motion for a directed verdict of acquittal. This stems from the fact that it is with great reluctance that the jury finally acceded to the trial judge's directions to enter a verdict of not guilty.
In the 15 years I have been on this Court, this is the first opportunity we have had to address the issue under circumstances that clearly reveal that there is understandably a reluctance on the part of jurors to hand down a verdict with which some, if not all of them, disagree. Although this is the first case to come before this Court, I have as a trial judge had personal knowledge and thereafter taken judicial notice of the fact that the problem exists. In addition, the Director of Appeals and Criminal Law Policy for Alberta submitted the following statement to this Court: "A number of our prosecutors can recall instances where despite being directed to bring in a verdict of acquittal, the jury has nevertheless returned verdicts of guilty." I do not think it necessary or wise to wait for this Court to be asked to rule on a case where the jurors resisted the judge's instructions and a mistrial thereby resulted.
We therefore invited the parties to make written submissions on this issue, which, I may say, they very helpfully did.
II. The Facts
In the case at bar, the trial judge directed the jury to acquit the accused:
Since the accused have been placed in your hands, it is not for me to acquit them. It is for you to do so. I told you at the beginning of the case you would have to take your law from me. It was not expected that you would take it in quite the straight forward and simple way in which I am going to direct you, but it is still in principle true, and I tell you as a matter of law that these accused are entitled to your verdict of not guilty for the reason I have just mentioned. I must therefore ask you to retire to your jury room to elect a foreperson to present your verdict and to return to the courtroom with a verdict finding each of the accused not guilty of the charges.
The jury left the courtroom at 3:05 p.m. and returned at 3:26 p.m. The registrar asked the members of the jury whether they had agreed upon their verdict and the following exchange took place:
THE FOREPERSON: We have, your honour, but there are a number of questions that some of the jurors have and we would like permission to have some of them answered, if the court so wishes.
THE COURT: If the jury have questions before rendering their verdict, we do the best we can to answer them. If they are necessary prior to your having reached a verdict to have these answered, then we should deal with them now. If they are questions that are not pertinent to the verdict, then we should have the verdict first and we can have a discussion if you wish afterwards, but if they're pertinent to the verdict then we'd better deal with them now.
THE FOREPERSON: Could I have a moment?
THE COURT: Certainly.
--- Discussion among the jury sotto voce.
A JUROR: I don't think all of us think that it's not guilty. Sorry. Some of us still believe a guilty verdict should go through.
THE COURT: Well, I have to explain again that it's a question that, you are the judges of the facts, but I'm the judge of the law, and as a result of legal argument that we have had here I have had to instruct you as a matter of law the Crown has not established a case for guilt here because they have not established that which they set out to establish; the only thing of which these accused could be convicted is exactly what the Crown charged, and they have not established the essential elements of that in law. So whatever the facts may be, whatever it may appear, if the Crown has not established what they charged then the accused are entitled to be acquitted.
If my law is wrong, the Court of Appeal will correct me and there will be a retrial. If my law is right, then I'm right. That's a question to be decided in another forum on another day. But for today, as a matter of law, the Crown has not proved a case upon which you can bring in a verdict of guilty.
A JUROR: I think there's a general feeling at the moment, in a way it's been a bit of a waste. It feels that we've spent almost four weeks and it all ends like this, without us being able to make a decision.
THE COURT: I'm certainly prepared to discuss that with you, although I don't know if that has to do with the verdict, so perhaps we should deal with that afterwards.
A JUROR: All right.
THE FOREPERSON: Your honour, we find the accused not guilty of the charges.
THE REGISTRAR: Members of the jury, harken to your verdict as the court hath recorded it. You find the accused not guilty. So say you all?
THE COURT: Thank you, members of the jury.
(1) The Issue
The issue here is the proper procedure to be followed by a trial judge sitting with a jury when satisfied on a motion for a directed verdict of acquittal. Is the judge required to instruct the jury to deliberate and return a verdict of not guilty or may the judge discharge the jury and enter the acquittal him- or herself?
(2) The Current Position
A directed verdict is not a creature of statute but rather of the common law. Although the appropriate test for a directed verdict has been the source of great controversy, the actual procedure a judge should follow once he or she has decided to direct the jury to bring in an acquittal has been relatively uncontroversial:
Where there is a jury present, the proper practice is for the judge, upon finding that there is no evidence to go before a jury, to direct the jury to acquit and discharge the accused. A judge who instead withdraws the case from the jury errs in so doing.
(Law Reform Commission of Canada, Working Paper 63, Double Jeopardy, Pleas and Verdicts (1991), at pp. 38-39.)
The common law authority for this proposition is generally traced to Walker v. The King,  S.C.R. 214, at pp. 216-17:
The proper practice, where the trial judge decides that there is no evidence to go to the jury in the well understood meaning of those words, is to direct the jury to acquit and discharge the accused.
. . .
It is to be observed that the question with which the trial judge was dealing was a question of law alone, a question upon which it was the duty of the jury to act under his direction; their duty, in other words, to render a verdict of not guilty upon a direction given by him. . . .
In R. v. Steele (1939), 73 C.C.C. 147, the Prince Edward Island Supreme Court considered an appeal expressed as follows (at p. 148):
... that the learned trial Judge improperly withdrew the case from the jury and discharged the prisoner on the ground that there was no evidence of a crime to go to the jury and that the learned trial Judge erred in discharging the prisoner without a verdict of the jury whose "true deliverance" between our Sovereign Lord the King and such prisoner had been committed to them.
The Prince Edward Island Supreme Court explicitly relied on Walker and concluded that the trial judge had erred.
In R. v. Jans (1946), 87 C.C.C. 76, the Saskatchewan Court of Appeal also concluded that a trial judge should not withdraw the case from the jury instead of instructing the jury to bring in a verdict of not guilty.
More recently, in R. v. Boyer,  1 C.C.C. 106, at p. 111, the British Columbia Court of Appeal relied on this case law:
The proper practice where the trial Judge decides that there is no evidence to go to the jury in the well-understood meaning of those words is to direct the jury to acquit and discharge the accused: Walker v. The King, 71 C.C.C. 305,  2 D.L.R. 353,  S.C.R. 214. The jury alone can acquit an accused and, if the Judge withdraws the case from the jury and himself discharges the prisoner without the verdict of the jury, there must be a new trial: R. v. Steele, 73 C.C.C. 147,  1 D.L.R. 779, 14 M.P.R. 321. [Emphasis in original.]
Leave to appeal in Boyer was denied by the Supreme Court of Canada in 1969,  S.C.R. vii.
The common theme in the case law is that a trial judge commits an error if he or she withdraws the case from the jury and enters an acquittal him- or herself rather than directing the jury to bring in a verdict of not guilty.
(3) The Case for Reform
The Law Reform Commission of Canada has recommended that the procedure prescribed in the common law be modified. In Working Paper 27, The Jury in Criminal Trials (1980), the Law Reform Commission recommended at p. 145:
24.1. At the conclusion of the prosecution's case, if the judge rules, either on the motion of a defendant or on the court's own motion, that there is no evidence to sustain a conviction of one or more offences charged, the judge shall order the entry of a judgment of acquittal. Such a motion by the defendant, if dismissed, shall not bar the defendant from offering evidence.
The Law Reform Commission explained at p. 146 that "it is recommended that if a motion for a directed verdict is granted that the judge simply order a judgment of acquittal. Under the present practice he must direct the jury to return a verdict of acquittal. This would appear to be a needless formality".
In Working Paper 63, Double Jeopardy, Pleas and Verdicts, supra, the Law Reform Commission recommended at p. 94:
(2) Where satisfied that there is no evidence of the crime charged, the judge should enter a verdict of not guilty.
The Law Reform Commission recognized, at p. 94, that:
... this test does propose a change to the present law. It proposes that on a jury trial, where there is no evidence of the crime charged, the judge, instead of directing the jury to acquit the accused, should discharge the jury and enter a verdict of not guilty. In this way, the judge is not obligated to delay proceedings by awaiting the jury's decision, nor is the risk run that the jury will disregard the judge's direction.
I think that these Law Reform Commission recommendations make sense for a number of reasons.
(i) Common law status of directed verdicts and the Criminal Code
Section 672 of the Criminal Code, R.S.C., 1985, c. C-46, preserves the common law respecting the conduct of trials by jury except in so far as the common law is inconsistent with the Criminal Code:
672. Nothing in this Act alters, abridges or affects any power or authority that a court or judge had immediately before April 1, 1955, or any practice or form that existed immediately before April 1, 1955, with respect to trials by jury, jury process, juries or jurors, except where the power or authority, practice or form is expressly altered by or is inconsistent with this Act.
Prior to 1955, the courts had the authority to establish procedures for directed verdicts of acquittal. The proposed exercise of that authority (i.e., reforming the procedure as proposed) is consistent with the Criminal Code. Therefore, it is open to this Court to adopt the proposed reform and modify the common law rule concerning the procedure for directed verdicts of acquittal.
(ii)The original justification for the traditional procedure is not relevant to the proposed procedural reform
It seems likely that the original justification for the traditional procedure for directed verdicts was the prevention of abuses of the judges' authority to discharge juries. The traditional procedure was adopted, in part, to prevent a judge from discharging a jury to preserve a faltering prosecution and to prevent an accused from obtaining an acquittal.
This original justification was explored in R. v. Charlesworth (1861), 31 L.J.M.C. 25. Cockburn C.J. described the abuses at p. 30:
... both at the Old Bailey and on the circuits it was the habit and practice of the Judges, in cases where the prosecution appeared about to break down from failure of proof, to discharge the jury, in order that an opportunity might be afforded of supplying the deficiency. ... this practice of discharging juries for the purpose of furthering the administration of justice and preventing its frustration was converted into an engine of party and political oppression. . . .
Similarly, Crompton J. said, at p. 38, that:
... what was complained of as mischievous in the practice adopted in the earlier times was its abuse -- in the time of Charles the Second, and probably before that, the practice was an abuse of the former practice of discharging juries when it became necessary -- and that there was not any doubt what the result would be, if this improper discharge took place. I look at the proceedings in the case of Fenwick and Whitbread (where this practice of discharging juries was used in so odious and dangerous and unconstitutional a manner that it cannot be too strongly reprobated), as having been taken for the very purpose of having the prisoners tried afresh; inasmuch as the Judges knew that, if they discharged the jury, a man had not the benefit of an acquittal, and that, therefore, he was liable to be tried again.
Blackburn J. summed up the abuse and the response to the abuse, at pp. 43-44:
Before the Revolution it certainly was the practice to discharge a jury, whenever the Judge thought the interests of justice required it, in order that there might be a second trial. ... After the Revolution no alteration was made, by the Bill of Rights or any other act, in the law or practice as to criminal trials; but the practice was changed. The reaction against the old abuses was great.
However, this original justification is not relevant to the proposed procedural reform. First, judicial abuses of authority can now be protected against and corrected by the rights of appeal set out in the Criminal Code and by appeals based upon claims of Charter rights violations or abuse of process. Second, the proposed procedural reform involves no prejudice to the accused since it gives the judge the authority to remove the case from the jury and enter an acquittal. That is, it does not give a judge the authority to remove the case from the jury and leave the accused vulnerable to another trial for the same offence (of course a new trial might still be ordered if the acquittal is overturned on appeal). Therefore, while concerns about judicial abuses of authority may have originally justified the procedure they do not present any obstacle to reforming the procedure now.
(iii) Avoidance of unnecessary delay and needless formality
Requiring the trial judge, the counsel, the court staff, the accused, and everyone else involved to wait for the jury to retire, elect a foreperson, discuss the case amongst themselves, and return with a predetermined verdict results in unnecessary delay and needless formality in the administration of justice. This unnecessary delay and needless formality flies in the face of the legal maxim "lex neminem cogit ad vana seu inutilia" -- "the law constrains no man to do that which is vain or futile" (Wills & Sons v. McSherry,  1 K.B. 20, at p. 25, and Bremer Handelsgesellschaft m.b.H. v. Vanden Avenne-Izegem P.V.B.A.,  1 Lloyd's Rep. 133 (Q.B. (Com. Ct.)), at p. 160).
(iv) Reduction of jury frustration
The frustration caused by the traditional procedure is evident upon the record in the case at bar. The jury members were understandably upset at having sat through a lengthy trial only to be told that they were obliged to return the verdict the trial judge told them to return no matter what their opinion on the case. Any directed verdict procedure will inevitably carry with it an element of frustration for the jury and that is unfortunate but unavoidable. However, it seems to add insult to injury to force the jury to bring back a verdict that they have not arrived at themselves. I believe that the frustration would be lessened by the actual removal of the decision from them rather than the artificial retention of it by them.
(v) Reduction of the risk of jury "disobedience"
With the current system, there is the risk that a jury will simply refuse to enter the verdict directed by the trial judge. It is not clear what response a trial judge would take in the face of such "disobedience". However, it is clear that the inevitable result would be an increased burden on the administration of justice (i.e., appeals). This risk can be reduced by removing the case from the jury entirely.
(vi) Preservation of jury independence
Having the trial judge withdraw the case from the jury and enter the verdict him- or herself leaves intact the notion of the independent jury. Jury members are supposed to make up their own minds about the guilt or innocence of the accused. It makes a mockery of this independence to allow the trial judge to direct the jury to find the accused not guilty.
(vii)Preservation of the division of responsibilities between judge and jury
In a trial by jury, it is the judge's responsibility to decide questions of law and it is the jury's responsibility to decide questions of fact. The jury must weigh the evidence placed before it. However, in cases in which there is no evidence, then there is nothing for the jury to weigh and there are no questions of fact. In such cases, the judge must decide the question of law and determine that, as a matter of law, the accused must be acquitted. Otherwise the dividing line between the responsibilities of judge and jury will be blurred.
There is no statutory bar to reforming the traditional procedure for directed verdicts of acquittal. The original justification for the traditional procedure is not relevant to the proposed procedural reform. There are considerable policy justifications for reforming the procedure. I therefore conclude that the traditional procedure for directed verdicts of acquittal should be reformed.
(i) United States of America v. Shephard
The Attorney General of Canada raised some concerns about the implications of the proposed procedural reform for the test for a directed verdict set out in United States of America v. Shephard,  2 S.C.R. 1067 (i.e., that there must be no evidence of an essential element of the offence charged). However, nothing that I have said in these reasons alters the test for a directed verdict set out in United States of America v. Shephard. These reasons are simply about the procedure that should be followed once that test has been passed.
(ii) Section 676(1)(a) of the Criminal Code
The Attorney General of Nova Scotia raised some concerns about the implications of the proposed procedural reform for the right of the Attorney General to appeal to a court of appeal under s. 676 of the Criminal Code:
676. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal
(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;
He submitted that the traditional interpretation of "trial court" is "the jury", but that "trial court" in s. 676(1)(a) should be interpreted as "the jury" or "the judge alone". This will ensure that the Attorney General continues to have a right to appeal to a court of appeal from a directed verdict of acquittal.
Indeed, for the purposes of a directed verdict of acquittal entered by a judge following removal of a case from the jury, "trial court" in s. 676(1)(a) should be interpreted as "the judge alone".
(iii) Section 606(4) of the Criminal Code
The appellants asked this Court to turn its attention to the issue of the proper procedure to be followed in cases where the accused enters a plea under s. 606(4) of the Criminal Code:
606. . . .
(4) Notwithstanding any other provision of this Act, where an accused or defendant pleads not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence, the court may, with the consent of the prosecutor, accept that plea of guilty and, if the plea is accepted, the court shall find the accused or defendant not guilty of the offence charged and find him guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court.
This issue is collateral to the case at bar. However, since the appellants made submissions on the issue and since the respondent agreed with the appellants' submissions, I see no need to wait for a case squarely on this issue to be brought to this Court. As I said earlier in these reasons, we are dealing here with judge-made law and it is open to us to reform that law.
The traditional interpretation of "court" in s. 606(4) is "the jury". The most recent reliance on this interpretation is found in R. v. Chrétien (1989), 70 C.R. (3d) 43 (Que. C.A.). However, the reasons outlined earlier as reasons to change the common law procedure re directed verdicts of acquittal are also reasons to change the common law interpretation of "court" in s. 606(4). Therefore, I conclude that "court", for directed verdicts under s. 606(4), should be interpreted as "the judge alone". The proper practice after an accused has been given in charge to the jury and wishes to plead guilty with prosecutorial consent, is for the trial judge, in the absence of the jury, to consider the appropriateness of the plea and rule whether it is acceptable. If the plea is acceptable, then the jury may be discharged and the "court" (now consisting of the judge alone) may record the verdict of not guilty to the offence charged and guilty to the lesser offence admitted.
(iv)Section 536 of the Criminal Code and s. 11(f) of the Canadian Charter of Rights and Freedoms
536. . . .
(2) Where an accused is before a justice charged with an offence, other than an offence listed in section 469, and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553, the justice shall, after the information has been read to the accused, put the accused to his election in the following words:
You have the option to elect to be tried by a provincial court judge without a jury and without having had a preliminary inquiry; or you may elect to have a preliminary inquiry and to be tried by a judge without a jury; or you may elect to have a preliminary inquiry and to be tried by a court composed of a judge and jury. If you do not elect now, you shall be deemed to have elected to have a preliminary inquiry and to be tried by a court composed of a judge and jury. How do you elect to be tried?
11. Any person charged with an offence has the right
. . .
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.
It might be argued that the proposed procedural modification undercuts the accused's election to be tried by a judge and jury under s. 536 of the Criminal Code and the accused's right to trial by jury under s. 11(f) of the Charter. I should note that I find this argument unpersuasive. The guarantee set out in s. 11(f) of the Charter is to guarantee anyone accused of certain more serious offences not to have their liberty, guaranteed under s. 7, restricted as a result of a conviction unless by a court composed of a judge and jury. The power in issue here being limited to directing a verdict to the advantage of the accused does not give rise to any such restriction.
I conclude that the common law procedure with respect to directed verdicts should be modified -- in instances where in the past the trial judge would have directed the jury to return a particular verdict, the trial judge should now say "as a matter of law, I am withdrawing the case from you and I am entering the verdict I would otherwise direct you to give as a matter of law".
Solicitors for the appellant Rowbotham: Nakatsuru & Doucette, Toronto.
Solicitors for the appellant Roblin: Copeland, Liss, Campbell, Toronto.
Solicitor for the respondent: John C. Tait, Ottawa.