Rajkumar Subramaniam was convicted in 2019 in the Supreme Court of British Columbia by a jury of one count of unlawful importation of methamphetamine, and one count of possession of methamphetamine for the purpose of trafficking, while returning to Canada from the United States in 2014.
In 2020 Subramaniam was sentenced to eight years in prison for importation, and another six years, to be served concurrently for possession for the purpose of trafficking. Subramaniam appealed his convictions and sentence.
Subramaniam alleged the trial judge erred in his instruction to the jury with respect to the issues of: wilful blindness, including having misstated the test for wilful blindness, which allowed the jury to “bypass the criminal burden of proof for mens rea.” The defence team further appealed the jury instructions provided on the fact-finding process, particularly because the judge required the jury to convert all probable evidence into findings of fact; and with respect to the instructions regarding the control element of possession of a controlled substance.
The Crown conceded that a portion of the judge’s instructions to the jury left “something to be desired” but claimed that the instructions, viewed as a whole, contained no reversible error and the jury was properly charged.
The appeal was allowed. Although the Court of Appeal ruled that instructions regarding wilful blindness were properly left with the jury, it said the trial judge’s instructions viewed all together were confusing, and it could not be said that the jury was left with no misapprehension regarding the correct burden and standard of proof to apply. Especially with respect to the fact-finding process, this might have left the jury in a position to convict Subramaniam on a standard lower than proof beyond a reasonable doubt.
The convictions were thus set aside and a new trial ordered in the decision released on April 19.
Eric Gottardi, Peck and Company
“More importantly, it is crucial for trial judges to re-emphasize the many ways that evidence, whether accepted or rejected, can raise a reasonable doubt. Juries are the arbiters of fact in a criminal trial and trial judges cannot direct juries how to go about their work,” he added.
“It was the correct decision,” said Jordan Watt, a partner with McCullough Watt Sutton Lynskey & Hodson in Victoria. “This is why we have an appellate court. People within the court process can make mistakes. This court can review alleged errors, and if there is a mistake come to the right decision.”
The Crown’s overall argument was correct because “when you’re looking at a charge, you don’t just take out bits and pieces. You have to look at it as a whole and determine whether or not, if there are errors, it can be cured by other parts of the charge,” Watt elaborated.
Both the Crown and the defence agreed that the key issue at trial was whether Subramanian knew that the automobile he was driving across the border had a secret compartment, and that compartment contained drugs. The defence claimed that other individuals had used Subramaniam’s vehicle to facilitate trafficking without his knowledge.
There was a body of circumstantial evidence from which it would have been open to the jury to conclude that the appellant was aware of that compartment, said the ruling, which noted Subramaniam had owned the vehicle for more than a year when he was charged, and significant modifications had been made to the vehicle which made it more amenable to smuggling.
But the ruling also noted that someone other than the appellant could have had control over the locked box in the car.
The trial judge had instructed the jury that “knowledge includes wilful blindness.”
“While the impugned instruction was problematic, I would not allow the appeal on this ground alone,” wrote Justice Patrice Abrioux. “I am not satisfied that, based on this instruction alone the jury would have failed to understand that the essential element of knowledge — which it had been instructed included wilful blindness — had to be established by the Crown beyond a reasonable doubt.”
The Court of Appeal ruling, which was also agreed with by Justices Gregory Fitch and Harvey Groberman, said the appeal turned on the introduction of the trial judge’s instructions to the final jury charge.
It cited how the judge had instructed the jury, “I will go over with you again the meaning of ‘reasonable doubt,’ and how that test is different than the test of the ‘balance of probabilities’ or ‘more probable than not.’ As I will explain to you, the standard of proof beyond a reasonable doubt applies to every essential element of each charge against Mr. Subramaniam. That standard does not apply to your consideration of whether the evidence has proven facts. If you accept evidence as being probably true, or more probably true than not true, then you must take that evidence as proof of a fact.”
Subramaniam’s defence team argued that this instruction usurped the fact-finding independence of the jury, and created a real risk that the jury would convict the appellant on a standard of probability, noted the Court of Appeal, which agreed that risk existed.
“When I consider the charge as a whole, I conclude that the impugned instruction could be seen to invite the jury to place the evidence into two ‘piles’… the first being what they accepted as being probably true, or more probably true than not true, and the second ‘pile’ consisting of evidence they did not accept. Then, if the evidence fell into the former ‘pile,’ the jurors may have felt that they ‘must take that evidence as proof of a fact,’” wrote Justice Abrioux.
From this, he concluded, there was a reasonable likelihood that the jury may have misapprehended the standard of proof by concluding that a proven fact was to be established on a balance of probabilities, rather than beyond a reasonable doubt.
“There was a risk, given that this was a jury trial, that the finder of facts’ reasoning process may have been flawed and the impact of that potential flaw cannot be known,” the ruling stated.
The Court of Appeal also rejected the Crown’s curative proviso argument under section 686(1)(b)(iii) of the Criminal Code, noting that even if errors were made, no substantial wrong or miscarriage of justice had occurred as a result of the trial court decision.
John Fennel, a lawyer with Caramanna Friedberg LLP in Toronto, called this “a good decision affirming that you can’t allow juries to get a path to guilt that does not require proof beyond a reasonable doubt.”
When appellant lawyers find something in the instructions that is wrong or confusing, a lot of times that will prove to be something isolated, and the appeal court will rule that the overall error is harmless and not confusing, said Fennel.
“But here, with the sorting of the evidence instruction that the judge gave, that created the cumulative problem that the misstatement with regard to wilful blindness was not corrected later on in the judge’s overall instructions on findings of fact and proof beyond a reasonable doubt,” he elaborated.
The major issue was that the judge’s instructions were confusing for the jury, and the Court of Appeal did not have confidence that the jury was restricted in its reasoning such that the only way they could get to a guilty verdict would be a route that required proof beyond a reasonable doubt for the essential elements of the offence, Fennel said.
“I agree with the result but disagree with the disposition of the first ground of appeal,” said Karin Blok, a partner with Fowler and Blok in Vancouver.
“If a trial judge, sitting as the trier of fact, misapplies the standard of proof it will often be apparent because trial judges are required to provide reasons for their decisions. Juries, of course, are not required to do the same. The impugned portion of the charge on wilful blindness was quite obviously fundamentally flawed with respect to one of the most important principles of criminal law — the standard of proof,” she elaborated.
Because the jury does not provide reasons, there is no way to know which standard they applied, Blok added.
“Where the issue is the standard of proof, an instruction that quite clearly lowers that standard on one essential element of the offence to something even less than a balance of probabilities — might have been wilfully blind — is an obvious and significant error that on its own should have resulted in a new trial,” she explained.
Fennel said this ruling is instructive for trial judges in terms of how they should instruct juries to sift through evidence. The restrictive sorting strategies the trial judge in this case presented might have opened up a route to conviction that didn’t require the essential elements needed to prove guilt beyond a reasonable doubt, he said.
It is also instructive for trial lawyers, to remind them to raise objections to closing arguments on the other side if those arguments suggest the jury engage in “sort of shorthand rules for sifting through the evidence that aren’t in accordance with the way reasonable doubt can arise,” added Fennel.
This case emphasizes the need for absolute clarity in the jury instructions and highlights a fundamental principle of proof beyond a reasonable doubt, which is a pillar of our criminal justice system, said Watt.
“No person can be convicted of a criminal offence unless the Crown proves beyond a reasonable doubt the essential elements of the offence — the highest standard of proof known to law. We must never forget that,” he stressed.
Counsel for the Crown was contacted by The Lawyer’s Daily but did not wish to comment.