Case information

Criminal law — Charge to jury — Reasonable doubt — Argument by Crown — No intervention or instruction to correct argument — Whether instructions on reasonable doubt given by judge presiding over jury must always include cautionary instruction from R. v. Starr, [2000] 2 S.C.R. 144, by indicating that reasonable doubt, though not amounting to absolute certainty, is what comes closest to it — Whether judge presiding over jury must correct misconduct committed by prosecutor during argument and, in particular, whether judge must always give correcting instruction where prosecutor addresses jury last.

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The applicant, André Legault, was charged with sexual touching and sexual assault against two sisters who were seven and five years old at the time. Following a jury trial, he was convicted of the offences against the older child but acquitted of the offences against the younger child. The count of sexual assault was later conditionally stayed.

The Court of Appeal dismissed Mr. Legault’s appeal. It found, among other things, that the trial judge did not have to intervene by giving the jury an immediate instruction to correct what Crown counsel had said in argument. Crown counsel’s comments were not inappropriate in the context of the evidence, the questions asked by defence counsel and the argument of defence counsel. The Court of Appeal also held that the instruction on reasonable doubt did not have to include a statement similar to the one proposed by Iacobucci J. in R. v. Starr, 2000 SCC 40. The instruction on reasonable doubt was consistent with R. v. Lifchus, [1997] 3 S.C.R. 320, and was therefore, in principle, unassailable. The explanations given were appropriate and intelligible.