Curative Proviso may apply even where error relates to "reasonable doubt"

s. 686(1)(b)(iii) of the Criminal Code allows the Court of Appeal to dismiss an appeal even if the trial judge erred if the court is of the opinion that, in spite of the error, “no substantial wrong or miscarriage of justice has occurred.” The burden is on the Crown to show this. R. v. B.D., 2011 ONCA 51, released today, suggests the Curative Proviso can apply, albeit rarely, even where the error of law relates to the application of reasonable doubt:

[118] The test is well-established. In R v. Khan, [2001] 3 S.C.R. 823, at para. 28, Arbour J. described the proviso as applying “where there is no ‘reasonable possibility that the verdict would have been different had the error ... not been made’ ”, citing R. v. Bevan, [1993] 2 S.C.R. 599, at p. 617. Other authorities have adopted language calling for “overwhelming evidence” of guilt. Most recently, for example, in R. v. Pickton (2010), 257 C.C.C. (3d) 296 (S.C.C.), at para. 85, LeBel J. stated that:

Other errors may be more serious, but the proviso will also apply because there is overwhelming evidence of the guilt of the accused and, on that evidence, a properly instructed jury would necessarily return a verdict of guilty.

See also R. v. Illes, [2008] 3 S.C.R. 134, at para. 21; R. v. Trochym, [2007] 1 S.C.R. 239; and R. v. S. (P.L.), [1991] 1 S.C.R. 909, at p. 916 (where Sopinka J. used the expression “would inevitably convict”).

[119] There is some concern, however, about resort to the curative proviso in cases where a trial judge has made an error in law in his or her charge with respect to the application of reasonable doubt. In R v. Brydon, [1995] 4 S.C.R. 253, for example, at para. 6, Lamer C.J. observed that he “[had] some reservations as to whether s. 686(1)(b)(iii) would ever be available to cure an erroneous instruction which may have misled a jury into improperly applying the burden of proof or reasonable doubt standard.” Other cases have echoed this same reservation. See R. v. Lifchus, [1997] 3 S.C.R. 320, at paras. 45-46; R. v. Starr, [2000] 2 S.C.R. 144, at para. 244; R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A.), at para. 20. In R. v. Taylor (2001), 54 O.R. (3d) 314 (C.A.), at para. 20, this Court noted that in theory the curative proviso can be applied to any error in law, but concluded on the facts that Taylor “was certainly not a case in which the force of the Crown’s case [was] such that the curative proviso could appropriately be applied to an error which is as fundamental as the failure to properly define reasonable doubt” (emphasis added).

[120] I do not take the foregoing authorities to foreclose categorically resort to the curative proviso in all cases where there has been an error relating to the application of the standard of reasonable doubt – particularly in view of the comment in Taylor. I recognize, however, that in such cases it will be very rare that “the force of the Crown’s case” will be such that the evidence will be so overwhelming that on that evidence a properly instructed jury would necessarily return a verdict of guilty absent the error: Pickton, para. 85.