Assessment for Fitness and Criminal Responsibility and Jury Instructions: Difference between pages

From Criminal Law Notebook
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==General Principles==
The purpose of a jury charge is to "educate the decision-maker so that it will make an informed decision, not to tell the decision-make what decision to make".<ref>
''R v Bradley'', [http://canlii.ca/t/glw8d 2015 ONCA 738] (CanLII){{perONCA|Watt JA}} at para 184<br>
</ref>
 
An accused person is "entitled to a properly, not perfectly, instructed jury".<ref>
''R v PJB'', [http://canlii.ca/t/ftj2j 2012 ONCA 730] (CanLII){{perONCA|Watt JA}} (3:0) at para 41<br>
''R v Jacquard'', [http://canlii.ca/t/1fr4h 1997 CanLII 374] (SCC), [1997] 1 SCR 314{{perSCC|Lamer CJ}} (4:3), at paras 1 to 2, 62<br>
</ref>
 
Judges are afforded some flexibility in the language they use in a jury instruction.<ref>
''R v Elder'', [http://canlii.ca/t/gh194 2015 ABCA 126] (CanLII){{TheCourtABCA}} (3:0){{at|13}}<br>
''R v Araya'', [http://canlii.ca/t/ggncg 2015 SCC 11] (CanLII){{perSCC|Rothstein J}} (5:0) at para 3<br>
''R v Avetysan'', [http://canlii.ca/t/524j 2000 SCC 56] (CanLII), [2000] 2 SCR 745{{perSCC|Major J}} (4:1){{at|9}}
</ref>
 
It is through the "instructions that the jury must appreciate the value and effect of the evidence in the context of the legal issues."<ref>
''R v Karaibrahimovic'', [http://canlii.ca/t/5076 2002 ABCA 102] (CanLII), (2002), 164 CCC (3d) 431{{perABCA|Fraser CJ}}{{at|33}}</ref>
 
A jury charge must be "even-handed" and the instructions "fair and balanced." At no time should sides be taken or editorial comments made.<ref>
R v Largie [2010] OJ No 3384 (ONCA), [http://canlii.ca/t/2c14p 2010 ONCA 548] (CanLII){{perONCA|Watt JA}} (3:0)</ref>
 
The charge should not be a "partisan broadcast".<ref>
{{supra1|Bradley}} at para 184<br>
</ref>
 
A judge may never direct the jury to find an element proven in light of the evidence at trial. This error cannot be cured by s. 686(1)(b)(iii).<ref>
''R v Tehrankari'', [http://canlii.ca/t/ftgdn 2012 ONCA 718] (CanLII){{perONCA|Weiler JA}} (3:0)
</ref>
 
A new trial is not warranted unless there is a "realistic possibility" that the instructions, within the context of the charges as a whole and the positions of the parties, may have misled the jury.<ref>
''R v Leroux'', [http://canlii.ca/t/1vd90 2008 ABCA 9] (CanLII){{TheCourtABCA}} (3:0), at para 27 citing ''R v Heil'', [http://canlii.ca/t/1m24t 2005 ABCA 397] (CanLII){{perABPC|Russell JA}} (3:0)<br>
</ref>
 
Instructions are not to be reviewed "to determine the extent to which they adhere to or depart from some particular approach or specific formula". Rather, they must be examined "against their ability to fulfill the purpose for which those instructions are provided."<ref>
''R v Tomlinson'', [http://canlii.ca/t/g51wx 2014 ONCA 158] (CanLII){{perONCA|Watt JA}} (3:0) at para 150<br>
{{supra1|Jacquard}} at paras 32 and 41<br>
{{supra1|MacKinnon}}{{at|27}}<br>
</ref>
 
A failure to object to a jury charge "affords some evidence" to suggest that the charge was not unfair, incomplete or unbalanced.<ref>
{{supra1|Bradley}} at para 186<br>
''R v Huard'', [http://canlii.ca/t/g1n05 2013 ONCA 650] (CanLII){{perONCA|Watt JA}} (3:0) at para 74<br>
{{supra1|Jacquard}} at para 35 to 37<br>
</ref>
The evidence will especially persuasive where "counsel  has had ample opportunity to review draft of proposed instructions and ample time to offer suggestions for inclusions, deletions and improvements". <ref>
{{supra1|Bradley}} at para 186<br>
{{supra1|Huard}}{{at|74}}<br>
</ref>


==General Principles==
The instructing judge is responsible for "review of the evidence and ... to relate the evidence to the position of the defence"<ref>
{{seealso|Not Criminally Responsible Due to Mental Disorder}}
{{supra1|Melvin}} at 31<br>
A court may order an assessment under s. 672.11 for the purpose of determining if the accused is unfit to stand trial or was suffering from a mental disorder so as to be exempt from criminal responsibility. Before a Court may order such an assessment, it is necessary that the Court have "reasonable grounds to believe" that the evidence from an assessment would be necessary to determine the issue in question.
{{supra1|PJB}} at para 43
</ref>
 
An instructing judge "must set out in plan and understandable terms the law that the jury must apply when assessing the facts".<ref>
''R v Daley'', [http://canlii.ca/t/1v5dr 2007 SCC 53] (CanLII){{perSCC|Bastarache J}} (5:4) at para 32<br>
</ref>
 
The "final instructions must leave the jury with a clear understanding of the factual issues to be resolved, the legal principles governing the factual issues, the evidence adduced at trial, the position of the parties and the evidence relevant to the positions of the parties on those issues".<ref>
''R v PJB'', [http://canlii.ca/t/ftj2j 2012 ONCA 730] (CanLII){{perONCA|Watt JA}} (3:0) at 42<br>
''R v Melvin'', [http://canlii.ca/t/gs0t1 2016 NSCA 52] (CanLII){{perNSCA|Farrar JA}} (3:0) at para 31<br>
</ref>
 
When reviewing the quality of instructions the judge "must not proceed on the assumption that jurors are morons, completely devoid of intelligence and totally incapable of understanding a rule of evidence".<ref>
R v Lane and Ross, [http://canlii.ca/t/g1269 1969 CanLII 545] (ONSC), [1970] 1 CCC 196{{perONSC|Addy J}}<br>
</ref>
 
Except in rare circumstances, the "trial judge must review the substantial parts of the evidence and give the jury the position of the defence so that the jury can appreciate the value and effect of the evidence"<ref>
{{ibid1|Melvin}} at 31
{{supra1|PJB}} at para 44
</ref>


{{quotation|
Review of evidence should include not simply summary of witness evidence but also available exhibits.<ref>
'''Assessment order'''<br>
Eg see {{supra1|Melvin}}{{ats|39 to 40}}<br>
672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
</ref>
:(a) whether the accused is unfit to stand trial;
:(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);
:(c) whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;
:(d) the appropriate disposition to be made, where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial has been rendered in respect of the accused;
:(d.1) whether a finding that the accused is a high-risk accused should be revoked under subsection 672.84(3); or
:(e) whether an order should be made under section 672.851 for a stay of proceedings, where a verdict of unfit to stand trial has been rendered against the accused.


1991, c. 43, s. 4; 1995, c. 22, s. 10; 2005, c. 22, s. 2; 2014, c. 6, s. 3.
The trial judge should not share his evidence notes to the judge even if both counsel find it acceptable.<ref>
|[http://canlii.ca/t/7vf2#sec672.11 CCC]
''R v Bouchard'', [http://canlii.ca/t/g2gfq 2013 ONCA 791] (CanLII){{perONCA|Doherty JA}} (2:1)
}}
</ref>


When an assessment order is made under section 672.1 an accused can be directed into the custody of either the hospital or the detention center. There is nothing prohibiting do use of either facility throughout the detention process.<ref>
; Decision Trees
''Ontario v Phaneuf'', [http://canlii.ca/t/2f41m 2010 ONCA 901] (CanLII){{TheCourtONCA}}
A decision tree given to the jury by the instructing judge does not constitute part of the instructions. It is a deliberative aid.<ref>
{{supra1|Bradley}} at para 142<br>
</ref>
</ref>


'''Fitness/NCR Assessment Order vs a DO/LTO Assessment Order'''<br>
The use of annotations on the decision tree to indicate the burden and standard of proof has been suggested as being "helpful".<ref>
A s. 672.11 order is separate from a DO/LTO Assessment which is made under s. 752.21.
''R v Spaniver'', [http://canlii.ca/t/1q7rm 2006 SKCA 139] (CanLII){{perSKCA|Richards JA}} (3:0) at para 41<br>
</ref>


; Procedure
; Presumptions
It has been suggested that the court needs sworn evidence either in the form of an affidavit or testimony before an assessment is ordered.<ref>
It is presumed that juries act reasonably in their verdict, are able to absorb the "gist" of the judge's instructions, and are able to follow them.<ref>
''R v Muschke'', [http://canlii.ca/t/1f5g0 1997 CanLII 838] (BCSC){{perBCSC|Pitfield J}}<br>
''R v Gallie'', [http://canlii.ca/t/gj1fx 2015 NSCA 50] (CanLII){{perNSCA|Fichaud JA}}{{at|38}}<br>
''R v Corbett'', [1988] 1 SCR 670, [http://canlii.ca/t/1ftgm 1988 CanLII 80] (SCC){{perSCC|Dickson CJ}}, paras 41-48<br>
''R v Elkins'', [http://canlii.ca/t/6jpr 1995 CanLII 3510] (ON CA), [1995] OJ No 3228 (C.A.){{perONCA|Doherty JA}} (3:0), para 27 <br>
''R v Suzack'', [http://canlii.ca/t/1fb1j 2000 CanLII 5630] (ON CA), [2000] OJ No 100 (QL) (C.A.){{perONCA|Doherty JA}}{{at|128}}<br>
R v Carrière, [http://canlii.ca/t/1f89q 2001 CanLII 8609] (ON CA), [2001] OJ No 4157 (C.A.){{perONCA|Doherty JA}} (3:0){{at|42}}<br>
''R v Ward'', [http://canlii.ca/t/fn0kk 2011 NSCA 78] (CanLII){{perNSCA|Saunders JA}}, paras 37-39, leave denied<br>
''R v Greenwood'', [http://canlii.ca/t/g8vr5 2014 NSCA 80] (CanLII){{perNSCA|Fichaud JA}}, para 143<br>
</ref>
</ref>
Contrary-wise, it has been suggested that no particular form of evidence is needed. The court only needs a "basis for the belief must be clear and plainly appear on the record of the proceedings".<ref>
 
''R v Goudreau'', [http://canlii.ca/t/glwvs 2015 ONSC 6758] (CanLII){{perONSC|P Smith J}}{{ats|29 to 30}}<br>
; Review
''R v Isaac'', [http://canlii.ca/t/27zrv 2009 ONCJ 662] (CanLII){{perONCJ| Schneider J}}{{at|23}}<br>
In appellate review of instructions, the issue is whether "in the context of the whole charge" whether there is a "reasonable possibility that the trial judge''s erroneous instructions may have misled the jury into improperly applying the [legal standard]".<ref>
</ref> It is also said that there only need to be "tangible grounds or arguments that indictable that an assessment order is called for".<ref>
''R v Brydon'', [http://canlii.ca/t/1frgk 1995 CanLII 48] (SCC){{perSCC|Lamer CJ}} at paras 21 and 25 - in context of the legal standard of proof beyond a reasonable doubt.<br>
''R v Sealy'', [http://canlii.ca/t/frfhb 2010 QCCQ 4504] (CanLII){{perQCCQ|Mascia J}} at para 107<br>
</ref>
</ref>


The standard does not need to amount to a level of balance of probabilities.<ref>
Evidence misleading the jury can come for sources including the matters bought up in post-charge instructions and questions from the jury.<ref>
{{ibid1|Sealy}}{{at|107}}<br>
{{supra1|Gallie}}{{at|60}}<br>
</ref>
</ref>
; Model Instructions
Model jury instructions are meant to be a sample from which adjustments can be made to craft appropriate jury insturctions for a particular case.<ref>
e.g. R v McNeil [http://canlii.ca/t/1pqfm 2006 CanLII 33663] (ON CA), (2006), 84 O.R. (3d) 125 (C.A.){{perONCA|Doherty JA}} (3:0){{at|21}} <br>
''R v Rowe'', [http://canlii.ca/t/fp3r5 2011 ONCA 753] (CanLII){{perONCA|Doherty JA}} (3:0) at para 62</ref>


{{reflist|2}}
{{reflist|2}}


==Ordering Assessment==
===Components of a Jury Instruction===
The authority to order an assessment for criminal responsibility or fitness to stand trial is found in s. 672.12 which states:
A recommended instruction should generally include some basic components such as:<ref>
{{quotation|
''R v Newton'', [http://canlii.ca/t/h49dr 2017 ONCA 496] (CanLII){{perONCA|Laskin JA}} (3:0) at para 11<br>
'''Where court may order assessment'''<br>
</ref>
672.12 (1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2) and (3), on application of the prosecutor.
* an explanation on the presumption of innocence;
<br>
* an explanation of the burden of proof; and
'''Limitation on prosecutor’s application for assessment of fitness'''<br>
* an explanation of how to assess credibility and reliability of witnesses' testimony.
(2) Where the prosecutor applies for an assessment in order to determine whether the accused is unfit to stand trial for an offence that is prosecuted by way of summary conviction, the court may only order the assessment if
 
:(a) the accused raised the issue of fitness; or
Any good instruction should include at least five components:<ref>
:(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is fit to stand trial.
{{ibid1|Newton}}{{at|11}}<br>
</ref>
# the legal framework, typically the elements of the offence or offences with which the accused is charged;
# the factual issues arising out of the legal framework that the jury must resolve;
# the material evidence relevant to these issues;
# the position of the Crown and defence on these issues; and
# the evidence supporting each of their positions on these issues.
 
The jury should be able to appreciate "the value and effect of that evidence, and how the law is to be applied to the facts as they find them".<ref>
{{ibid1|Newton}}{{at|11}}<br>
</ref>


'''Limitation on prosecutor’s application for assessment'''<br>
'''Elements of Clarity'''<br>
(3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if
The instructions must give the jury a clear understanding of:<ref>''R v PJB'', [http://canlii.ca/t/ftj2j 2012 ONCA 730] (CanLII){{perONCA|Watt JA}} (3:0) at para 42 citing ''R v MacKinnon'', [http://canlii.ca/t/1f971 1999 CanLII 1723] (ONCA){{perONCA|Doherty JA}} (3:0) at para 27<br>
:(a) the accused puts his or her mental capacity for criminal intent into issue; or
''R v Nadarajah'', [http://canlii.ca/t/22dzm 2009 ONCA 118] (CanLII){{perONCA|Goudge JA}} (3:0) at para 37<br>
:(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.
''R v Knox'', [http://canlii.ca/t/gx5l5 2017 SKCA 8] (CanLII){{perSKCA|Ottenbreit JA}} (3:0) at para 16<br>
1991, c. 43, s. 4.
''R v Huard'', [http://canlii.ca/t/g1n05 2013 ONCA 650] (CanLII){{perONCA|Watt JA}} (3:0) at para 50<br>
|[http://canlii.ca/t/7vf2#sec672.12 CCC]
''R v Daley'', [http://canlii.ca/t/1v5dr 2007 SCC 53] (CanLII){{perSCC|Bastarache J}}{{at|29}}<br>
}}
</ref>
# the factual issues to be resolved;
# the legal principles governing the factual issues and the evidence adduced at trial;
# the positions of the parties; and
# the evidence relevant to the positions of the parties on the issues.


'''Onus and Burden'''<br>
{{reflist|2}}
Every person is presumed sane (s. 16(2)) until established otherwise by the party advancing the issue (s. 16(3)). It must be proven on a balance of probabilities.


==Pre-Charge Conference==
Before beginning deliberations, the judge will hold a pre-charge conference where the parties will provide input on the form of the charge:
{{quotation|
{{quotation|
'''Defence of mental disorder'''<br>
'''Pre-charge conference'''<br>
16 (1) ...<br>
650.1 A judge in a jury trial may, before the charge to the jury, confer with the accused or counsel for the accused and the prosecutor with respect to the matters that should be explained to the jury and with respect to the choice of instructions to the jury.
; Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
<br>
'''Burden of proof'''<br>
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
<br>
<br>
R.S., 1985, c. C-46, s. 16; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1991, c. 43, s. 2.
1997, c. 18, s. 78.
|[http://canlii.ca/t/7vf2#sec672.12 CCC]
|[http://canlii.ca/t/7vf2#sec650.1 CCC]
}}
}}


'''Party Requesting Assessments'''<br>
Pre-charge conference should be held in the presence of the accused and on the court record.<ref>
Assessments can be ordered under s. 672.12 by either the court, accused, or crown. The judge cannot order an assessment where it is not requested by either side and is explicitly opposed by both.<ref>
''R v Simon'', [http://canlii.ca/t/2d7j6 2010 ONCA 754] (CanLII){{perONCA|Watt JA}} (3:0 )</ref>
''R v Piette'', [http://canlii.ca/t/1m5jd 2005 BCSC 1724] (CanLII){{perBCSC|Wedge J}}</ref>
 
An agreement on instructions at the pre-charge conference, which includes an absence of objection, that are reflected in the trial judge's instructions is a "significant factor" in assessment the adequacy of the instructions on appeal. <ref>
''R v Bouchard'', [http://canlii.ca/t/g2gfq 2013 ONCA 791] (CanLII){{perONCA|Doherty JA}} (2:1)
</ref>
 
{{reflist|2}}
 
==Post-Charge Procedure==
Once the jury has been charged, the jury is directed to "retire" to decide on the issues befor them.<ref>
[http://canlii.ca/t/7vf2#sec652.1 s. 652.1(1)] states ("After the charge to the jury, the jury shall retire to try the issues of the indictment."</ref>
 
Where there are more that 12 jurors, the judge will perform a random draw of juror names to have them discharged until there are 12 remaining.<ref>
see s. 652.1(2) for details on the process</ref>
 
{{reflist|2}}
==Specific Instructions==
* See [[Established Areas of Jury Instruction]]
 
; Rhetorical Questions
Rhetorical questions are generally undesirable in the instructions as it may tend to show some bias.<ref>
''R v Baltovich'', [http://canlii.ca/t/1jchl 2004 CanLII 45031] (ON CA), (2004), 73 O.R. (3d) 481{{TheCourtONCA}} (3:0), at para 146 ("[Rhetorical questions] should be avoided in the jury charge, lest the trial judge be seen as taking up the Crown's cause and casting off the mantle of objectivity.")</ref>
 
{{Reflist|2}}
 
==Instructions During Deliberations==
 
===Deadlocked Juries===
Where the jury is deadlocked the judge may give an exhortation to encourage the jury to make effort to reach agreement. The judge must be careful and balanced during the exhortation to a deadlocked jury. The jury will likely be frustrated and disgruntled and so must be handled appropriately.<ref> ''R v RMG'', [http://canlii.ca/t/1fr7s 1996 CanLII 176] (SCC), [1996] 3 SCR 362{{perSCC|Cory J}} (7:2){{At|15}}</ref>
 
The judge should not do anything that may treat particular jurors as misunderstood or that pits one jurors against the others.
<ref>
''R v Vivian'', [http://canlii.ca/t/frc49 2012 ONCA 324] (CanLII){{perONCA|MacPherson JA}} (3:0) at para 47
</ref>
 
It is not relevant to examine whether the jurors were affected by any of the instructions of the judge.<ref>Vivian at para 61</ref>
 
The judge must make it clear to the jury throughout his instructions that they are "not obliged to render a verdict" if they cannot reach a consensus.<ref>
See ''R v Chahal'', [http://canlii.ca/t/21xxs 2008 BCCA 529] (CanLII){{perBCCA|Smith JA}} (3:0)
</ref>
{{reflist|2}}
 
===Jury Questions===
During the deliberations of a jury, they are permitted to submit questions to the court and counsel.
Jury questions indicate some of the problems the jurors are having in deliberating and seek help from the trial judge.<ref>
''R v MT'', [http://canlii.ca/t/fs52f 2012 ONCA 511] (CanLII){{perONCA|Watt JA}} (3:0) at para 114 (questions "indicate that that at least some jurors are having a problem with an issue in the case.")<br>
R v W. (D.), [http://canlii.ca/t/1fsm9 1991 CanLII 93] (SCC), [1991] 1 SCR 742{{perSCC|Cory J}} (3:2), at pp. 759-760<br>
''R v WDS'', [http://canlii.ca/t/1frq0 1994 CanLII 76] (SCC), [1994] 3 SCR 521{{perSCC|Cory J}} (5:2), at pp. 528-529 / para 14 to 18<br>
</ref>
 
Answers to questions carry "an influence far exceeding instructions given".<ref>
''R v Grandine'', [http://canlii.ca/t/h5zqf 2017 ONCA 718] (CanLII){{perONCA|Brown JA}} (3:0) at para 62<br>
''R v Naglik'', [http://canlii.ca/t/1fs0h 1993 CanLII 64] (SCC), [1993] 3 SCR 122{{Plurality}}, at p. 139<br>
{{supra1|WDS}} at para. 16<br>
</ref>
 
Where a jury question is unclear, the judge should seek clarification before attempting to provide an answer.<ref>
''R v Shannon'', [http://canlii.ca/t/fltfr 2011 BCCA 270] (CanLII){{perBCCA|Finch JA}} (3:0)</ref>


The Crown has a further restrictions under s. 672.12(2) and (3) to make the request. The accused must raise their fitness or responsibility and further there must be "reasonable grounds" to doubt the accused fitness or criminal responsibility.
Jury questions must be answered "clearly, correctly and comprehensively".<ref>
W.(D.), at pp. 759-760<br>
S.(W.D.) at 528, 530 (SCR) - it is judge's obligation to answer "fully" and "properly" with the assistance of counsel<br>
''R v Layton'', [http://canlii.ca/t/24qq0 2009 SCC 36] (CanLII), [2009] 2 SCR 540{{perSCC|Rothstein J}} (5:2){{at|20}}<br>
{{supra1|Grandine}}{{at|62}}<br>
''R v Stubbs'', [http://canlii.ca/t/g01lb 2013 ONCA 514] (CanLII){{perONCA|Watt JA}} (3:0) at para 95<br>
</ref>


; Court Jurisdiction
A proper answer should improve the jury’s “understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case.<ref>
The Court of Appeal has no power to order an assessment under s.672.11(b) to determine if the accused was not criminally responsible.<ref>
{{supra1|PJB}}{{at|44}}<br>
''R v Resler'', [http://canlii.ca/t/fkps9 2011 ABCA 82] (CanLII){{perABCA| Rowbotham JA}}
</ref>
</ref>


; Timing
However, the response should be timely as well. Delay without instructions the jury to cease deliberations where the question reflects a misunderstanding is open to risk of corrupting the verdict.<ref>
An application for an assessment can be made "at any stage of proceedings against the accused" (s. 672.12(1))
''R v Ellis'', [http://canlii.ca/t/fvkr6 2013 ONCA 9] (CanLII){{perONCA|Watt JA}} (3:0) at para 42<br>
</ref>


The assessment can be ordered even ''after'' a trial where there is medical evidence, oral or affidavit, that establishes grounds for an assessment.<ref>
A judge should not communicate with the jury by sending notes with unsolicited information without the input on counsel.<ref>
''R v Brown'', [http://canlii.ca/t/1pwk7 2006 BCSC 1581] (CanLII){{perBCSC|Powers J}}<br>
''R v Edwards'', [http://canlii.ca/t/1clsl 2002 CanLII 41587] (ON CA){{TheCourtONCA}} (3:0)
''R v Laidley'', [2001] AJ No 1221, [http://canlii.ca/t/1h4r1 2001 ABQB 781] (CanLII){{perABQB|Lee J}}</ref>
</ref>


; Evidence
Any errors in a response to a jury cannot be remedied simply by referring back to the correctness of original charge.<ref>
Expert evidence is almost always necessary to make a finding on an accused's sanity.<ref>
S(WD) at pp. 530 to 531 (SCR)</ref>
''R v Quenneville'', [http://canlii.ca/t/28z6g 2010 ONCA 223] (CanLII){{perONCA|Goudge JA}} at para 28 verdict can be drawn from facts alone</ref>
 
An answer should never discourage further questions on any subject.<ref>
''R v Layton'', [2009] 2 SCR 540, [http://canlii.ca/t/24qq0 2009 SCC 36] (CanLII){{perSCC|Rothstein J}} (5:2) at para 33</ref>
 
In responding to a jury question, it is often advisable that the judge invite the jury to return with further questions if the response does not assist.<ref>
''R v Layton'', [http://canlii.ca/t/217bw 2008 MBCA 118] (CanLII){{perMBCA|Hamilton JA}}
</ref>
 
In answering a question regarding the [[Standard of Proof|standard of proof of "beyond a reasonable doubt"]], there is nothing per se wrong with simply reciting the standard anew.<ref>
{{ibid1|Layton}} at para 29, 32</ref>
 
It is an inadequate answer to respond "yes" to the jury  question that I asked "do we consider all of the evidence for all charges?".<ref>
{{supra1|Melvin}} at paras 52 to 53
</ref>
 
A question may find it necessary to "instruct the jury in a manner that does not accord with the theory advanced by either Crown or defence counsel".<ref>
''R v Ranger'', [http://canlii.ca/t/5xwr 2003 CanLII 32900] (ONCA){{perONCA|Charron JA}} (3:0) at para 135<br>
{{supra1|Grandine}}{{at|63}}<br>
</ref> This is permissible because the jury is not bound by the opposing theories of Crown and defence.<ref>
{{supra1|Grandine}}{{at|63}}<br>
</ref> However, limitations exist on this flexibility for the purpose of preserving trial fairness.<ref>
{{supra1|Grandine}}{{at|63}}<br>
''R v Largie'', [http://canlii.ca/t/2c14p 2010 ONCA 548] (CanLII){{perONCA|Watt JA}} (3:0) at para. 161<br>
</ref>


{{reflist|2}}
{{reflist|2}}


==Form and Content of Order==
====Failing to Answer Jury Questions====
Where a jury asks a question and then withdraws before it is answered by the judge will not render the verdict invalid. The judge need not answer the question for the jury.<ref>
R v Sit (1989) 47 CCC (3d) 45 (ONCA), [http://canlii.ca/t/gbmxf 1989 CanLII 7194] (ON CA){{perONCA|Finlayson JA}} (2:1) at pp. 57-58<br>
see also ''R v Ellis'', [http://canlii.ca/t/fvkr6 2013 ONCA 9] (CanLII){{perONCA|Watt JA}} (3:0)</ref>
 
A jury may withdraw a question simply by announcing it is ready to give a verdict.<ref>
''R v Lavoie'', [http://canlii.ca/t/1vqtz 1990 CanLII 4038] (NB CA), (1990), 107 N.B.R. (2d) 181 (N.B.C.A.){{perNBCA|Hoyt JA}} (3:0)</ref>
 
It may be recommended that once the jury is ready despite not having the question answered, that the court canvas both counsel and the jury about whether the question should still be answered.<ref>
''R v Jones'', [http://canlii.ca/t/fn197 2011 ONCA 584] (CanLII){{perONCA|Laskin JA}} (3:0) at para 55, 56</ref>
 
{{reflist|2}}


{{quotation|
===Recharge of Jury===
'''Contents of assessment order'''<br>
The answer may result in a "recharge" of the jury.  These recharges "must be correct and comprehensive no matter how exemplary the original charge may have been".<ref>
672.13 (1) An assessment order must specify
R v S. (W.D.), [http://canlii.ca/t/1frq0 1994 CanLII 76] (SCC), [1994] 3 SCR 521{{perSCC|Cory J}} (5:2) at pp. 530-531</ref>
:(a) the service that or the person who is to make the assessment, or the hospital where it is to be made;
:(b) whether the accused is to be detained in custody while the order is in force; and
:(c) the period that the order is to be in force, including the time required for the assessment and for the accused to travel to and from the place where the assessment is to be made.


; Form
An error in recharge cannot be forgiven simply because the original charge was correct.<ref>
(2) An assessment order may be in Form 48 or 48.1.
S(WD){{ibid}} at pp. 530-531
<br>
</ref> In fact, the more time that passes between the original charge and recharge, the greater imperative that the recharge be "correct and comprehensive".<ref>
1991, c. 43, s. 4; 2005, c. 22, s. 4.
S(WD){{ibid}} at p. 531</ref>
|[http://canlii.ca/t/7vf2#sec672.13 CCC]
}}


==Duration of Order==
{{reflist|2}}


{{quotation|
==Errors in Instructions==
'''General rule for period'''<br>
Instructions must be "fair and balanced".<ref>  
672.14 (1) An assessment order shall not be in force for more than thirty days.
''R v Baltovich'', [http://canlii.ca/t/1jchl 2004 CanLII 45031] (ON CA), (2004) 73 OR (3d) 481 (CA){{TheCourtONCA}} at para 118<br>
<br>
''R v Jeanvenne'', [http://canlii.ca/t/gn94t 2016 ONCA 101] (CanLII){{perONCA|Weiler JA}}{{at|31}}<br>
'''Exception in fitness cases'''<br>
</ref>
(2) No assessment order to determine whether the accused is unfit to stand trial shall be in force for more than five days, excluding holidays and the time required for the accused to travel to and from the place where the assessment is to be made, unless the accused and the prosecutor agree to a longer period not exceeding thirty days.
<br>
'''Exception for compelling circumstances'''<br>
(3) Despite subsections (1) and (2), a court or Review Board may make an assessment order that remains in force for sixty days if the court or Review Board is satisfied that compelling circumstances exist that warrant it.
<br>
1991, c. 43, s. 4; 2005, c. 22, s. 5.
|[http://canlii.ca/t/7vf2#sec672.14 CCC]
}}


{{quotation|
A fair instruction requires that "the charge explain the theories of each side and review the salient facts in support of those theories.<ref>
; Extension
''R v Daley'', [http://canlii.ca/t/1v5dr 2007 SCC 53] (CanLII){{perSCC|Bastarache J}} (5:4) at para 29<br>
672.15 (1) Subject to subsection (2), a court or Review Board may extend an assessment order, of its own motion or on the application of the accused or the prosecutor made during or at the end of the period during which the order is in force, for any further period that is required, in its opinion, to complete the assessment of the accused.
{{supra1|Jeanvenne}}{{at|31}}<br>
<br>
</ref>
'''Maximum duration of extensions'''<br>
(2) No extension of an assessment order shall exceed thirty days, and the period of the initial order together with all extensions shall not exceed sixty days.
<br>
1991, c. 43, s. 4; 2005, c. 22, s. 6.
|[http://canlii.ca/t/7vf2#sec672.15 CCC]
}}


==Consequences of Order==
The appropriateness of instructions must be analyzed "as a whole and its overall effect".<ref>
{{supra1|Daley}}{{at|31}}<br>
{{supra1|Jeanvenne}}{{at|33}}<br>
</ref>


{{Quotation|
Where instructions are given on a point of law, the reviewing court should look at the instructions as a whole and consider whether the jury would not have understood the law correctly.<ref>
'''Assessment order takes precedence over bail hearing'''<br>
''R v Rodgerson'', [http://canlii.ca/t/g6sg6 2014 ONCA 366] (CanLII){{perONCA|Doherty JA}}, at paras 23 to 26 - instructions on murder<br>
672.17 During the period that an assessment order made by a court in respect of an accused charged with an offence is in force, no order for the interim release or detention of the accused may be made by virtue of Part XVI or section 679 in respect of that offence or an included offence.
''R v Jaw'', [http://canlii.ca/t/25qz1 2009 SCC 42] (CanLII), [2009] 3 SCR 26{{perSCC|LeBel J}} (7:2), at para 32 (“[a]n appellate court must examine the alleged error in the context of the entire charge and of the trial as a whole”)<br>
<br>
</ref>
1991, c. 43, s. 4; 2005, c. 22, s. 8.
|[http://canlii.ca/t/7vf2#sec672.17 CCC]
}}


{{quotation|
Repetitions of instructions on law correctly may remedy a single instance of an incorrect instruction.<ref>
'''Application to vary assessment order'''<br>
e.g. {{supra1|Rodgerson}} - repeated instructions on murder corrected error<br>
672.18 Where at any time while an assessment order made by a court is in force the prosecutor or an accused shows cause, the court may vary the terms of the order respecting the interim release or detention of the accused in such manner as it considers appropriate in the circumstances.
</ref>
<br>
1991, c. 43, s. 4; 2005, c. 22, s. 9(F).
|[http://canlii.ca/t/7vf2#sec672.18 CCC]
}}


{{quotation|
A failure to give instruction on an issue can be a "non-direction amounting to a misdirection".<ref>
'''No treatment order on assessment'''<br>
''R v Menard'', [http://canlii.ca/t/26c3k 2009 BCCA 462] (CanLII){{TheCourtBCCA}} (3:0)
672.19 No assessment order may direct that psychiatric or any other treatment of the accused be carried out, or direct the accused to submit to such treatment.
</ref>
1991, c. 43, s. 4.
When assessment completed'''<br>
672.191 An accused in respect of whom an assessment order is made shall appear before the court or Review Board that made the order as soon as practicable after the assessment is completed and not later than the last day of the period that the order is to be in force.
<br>
1997, c. 18, s. 81; 2005, c. 22, s. 10.
|[http://canlii.ca/t/7vf2#sec672.19 CCC]
}}


==Custody During Order==
A charge should not be "endlessly dissected and subjected to minute scrutiny and criticism".<ref>
''R v Cooper'', [http://canlii.ca/t/1fs5v 1993 CanLII 147] (SCC), [1993] 1 SCR 146{{perSCC|Cory J}} (6:1), at p. 163
</ref>


{{quotation|
Closing arguments of counsel cannot have the effect of making inadequate instructuon become adequate and do not relieve the trial judge of their duties in giving instructions.<ref>
'''Presumption against custody'''<br>
''R v Melvin'', [http://canlii.ca/t/gs0t1 2016 NSCA 52] (CanLII){{perNSCA|Farrar JA}} at paras 72 to 73
672.16 (1) Subject to subsection (3), an accused shall not be detained in custody under an assessment order of a court unless
PJB at para 47<br>
:(a) the court is satisfied that on the evidence custody is necessary to assess the accused, or that on the evidence of a medical practitioner custody is desirable to assess the accused and the accused consents to custody;
</ref>
:(b) custody of the accused is required in respect of any other matter or by virtue of any other provision of this Act; or
:(c) the prosecutor, having been given a reasonable opportunity to do so, shows that detention of the accused in custody is justified on either of the grounds set out in subsection 515(10).


'''Presumption against custody — Review Board'''<br>
{{Reflist|2}}
(1.1) If the Review Board makes an order for an assessment of an accused under section 672.121, the accused shall not be detained in custody under the order unless
:(a) the accused is currently subject to a disposition made under paragraph 672.54(c);
:(b) the Review Board is satisfied on the evidence that custody is necessary to assess the accused, or that on the evidence of a medical practitioner custody is desirable to assess the accused and the accused consents to custody; or
:(c) custody of the accused is required in respect of any other matter or by virtue of any other provision of this Act.


'''Residency as a condition of disposition'''<br>
==Appeal==
(1.2) Subject to paragraphs (1.1)(b) and (c), if the accused is subject to a disposition made under paragraph 672.54(b) that requires the accused to reside at a specified place, an assessment ordered under section 672.121 shall require the accused to reside at the same place.
{{Seealso|Appeals}}
<br>
'''Report of medical practitioner'''<br>
(2) For the purposes of paragraphs (1)(a) and (1.1)(b), if the prosecutor and the accused agree, the evidence of a medical practitioner may be received in the form of a report in writing.
<br>
'''Presumption of custody in certain circumstances'''<br>
(3) An assessment order made in respect of an accused who is detained under subsection 515(6) or 522(2) shall order that the accused be detained in custody under the same circumstances referred to in that subsection, unless the accused shows that custody is not justified under the terms of that subsection.
<br>
1991, c. 43, s. 4; 2005, c. 22, s. 7.
|[http://canlii.ca/t/7vf2#sec672.16 CCC]
}}


==Assessment Reports==
'''Standard of Review'''<br>
Misdirection of a jury (not including non-direction of a jury) is a question of law.<ref>
''R v Luciano'', [http://canlii.ca/t/2fhtn 2011 ONCA 89] (CanLII){{perONCA|Watt JA}}{{at|70}}</ref>


{{quotation|
Whether a judge erred in misdirecting or failing to direct a jury is reviewed on a standard of correctness.<ref>
'''Assessment report'''<br>
''R v Waite'', [http://canlii.ca/t/fzlmd 2013 ABCA 257] (CanLII){{perABCA|Rowbotham JA}} (2:1) at para 11
672.2 (1) An assessment order may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused.
</ref>
<br>
'''Assessment report to be filed'''<br>
(2) An assessment report shall be filed with the court or Review Board that ordered it, within the period fixed by the court or Review Board, as the case may be.
<br>
'''Court to send assessment report to Review Board'''<br>
(3) The court shall send to the Review Board without delay a copy of any report filed with it pursuant to subsection (2), to assist in determining the appropriate disposition to be made in respect of the accused.
<br>
'''Copies of reports to accused and prosecutor'''<br>
(4) Subject to subsection 672.51(3), copies of any report filed with a court or Review Board under subsection (2) shall be provided without delay to the prosecutor, the accused and any counsel representing the accused.
<br>
1991, c. 43, s. 4; 2005, c. 22, s. 11.
|[http://canlii.ca/t/7vf2#sec672.2 CCC]
}}


==Admissibility of Assessment Reports==
'''Functional Approach to Review'''<br>
{{seealso|Privilege}}
An appellate court should assess a jury charge "functionally". It is not an idealized approach considering whether better instructions could have been given.<ref>
Section 672.21 designates statements by accused in the course of assessments or treatments to be "protected". These protected statements are not admissible except for the purpose of determining fitness, determining placement or disposition, perjury proceedings, and other limited purposes.
''R v Jacquard (C.O.)'', [http://canlii.ca/t/1fr4h 1997 CanLII 374] (SCC), [1997] 1 SCR 314{{perSCC|Lamer CJ}} (4:3) at para 32<br>
''R v Cooper'', [http://canlii.ca/t/1fs5v 1993 CanLII 147] (SCC), [1993] 1 SCR 146{{perSCC|Cory J}} at pp. 163-164<br>
</ref>


{{quotation|
The adequacy of jury instructions is analyzed using "a functional approach" which is "based on the evidence at trial, the live issues raised and the submissions of counsel."<ref>
'''Definition of “protected statement”'''<br>
''R v Howe'', [http://canlii.ca/t/gkzvw 2015 NSCA 84] (CanLII){{perNSCA|Farrar JA}} at para 67
672.21 (1) In this section, “protected statement” means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person’s direction.
</ref>
<br>
'''Protected statements not admissible against accused'''<br>
(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.
<br>
; Exceptions
(3) ...


1991, c. 43, s. 4; 2005, c. 22, s. 12; 2014, c. 6, s. 5.
The reviewing judge should determine whether the accused, based on the review of the whole charge, has had a fair trial. It is not to look for minute errors. <ref>
|[http://canlii.ca/t/7vf2#sec672.21 CCC]
''R v Korski (C.T.)'', [http://canlii.ca/t/236fj 2009 MBCA 37] (CanLII), 236 Man.R. (2d) 259{{perMBCA|Steel JA}} (3:0), at para 102<br>
}}
{{supra1|Cooper}} at p. 163<br>
''R v Luciano'', [http://canlii.ca/t/2fhtn 2011 ONCA 89] (CanLII){{perONCA|Watt JA}}{{at|71}}<br>
Vé''zeau v The Queen'', [http://canlii.ca/t/1mx4z 1976 CanLII 7], [1977] 2 SCR 277{{perSCC|Martland J}} (7:2) at p. 285<br>
''R v Kociuk (R.J.)'', [http://canlii.ca/t/fnl3w 2011 MBCA 85] (CanLII){{perMBCA|Chartier JA}} (2:1) at paras 69 to 72 <br>
{{supra1|Jacquard}}<br>
</ref>


Accused statements made in the assessment report are not admissible at sentencing.<ref>
The Court should consider whether the instructions had the ability to fulfill their purpose and not simply whether they diverted from a formula.<ref>
''R v Bennight'', [http://canlii.ca/t/2cmw9 2010 BCSC 1334] (CanLII){{perBCSC|Grauer J}}
R v MacKinnon [http://canlii.ca/t/1f971 1999 CanLII 1723] (ON CA), (1999), 132 CCC (3d) 545 (Ont. C.A.){{perONCA|Doherty JA}} (3:0){{at|27}}<br>
</ref>
</ref>


The consent to undergo an assessment does not translate to consent to collect evidence against the accused. The statements cannot be used for establishing planning or deliberation.<ref>
This analysis must be in light of factors including:<ref>
''R v Genereux'', [http://canlii.ca/t/1fbjg 2000 CanLII 17020] (ON CA){{perONCA|Abella JA}}
''R v Johnson'', [http://canlii.ca/t/hrj8h 2017 NSCA 64] (CanLII){{perNSCA|Beveridge JA}} (3:0) at para 47<br>
</ref>
</ref>
* the live issues at trial,
* the position of the parties,
* the overall effect of the charge.


{{reflist|2}}


===Exceptions===
'''Jury's Failure to Follow Instructions'''<br>
{{quotation|
Evidence that the jury had demonstrably not followed the jury instructions may cause a miscarriage of justice.<ref>
672.21<br>...<br>
''R v Richard'', [http://canlii.ca/t/g25wh 2013 MBCA 105] (CanLII){{perMBCA|Cameron JA}} (3:0)
; Exceptions
</ref>
(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of
:(a) determining whether the accused is unfit to stand trial;
:(b) making a disposition or placement decision respecting the accused;
:(c) determining, under section 672.84, whether to refer to the court for review a finding that an accused is a high-risk accused or whether to revoke such a finding;
:(d) determining whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;
:(e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;
:(f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously; or
:(g) establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding.


1991, c. 43, s. 4; 2005, c. 22, s. 12; 2014, c. 6, s. 5.
; Defences
|[http://canlii.ca/t/7vf2#sec672.21 CCC]
All defences that have an air of reality are to be put to the jury, even if not raised by counsel.<ref>
}}
''R v Cinous'', [http://canlii.ca/t/51tb 2002 SCC 29] (CanLII), [2002] 2 SCR 3{{perSCC|McLachlin CJ and Bastarache J}}<br>
</ref>


{{reflist|2}}
{{reflist|2}}
==See Also==
* [[Jury Procedure]]
* [[Established Jury Instructions]]
* [https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/?langSwitch=en Model Jury Instructions]

Revision as of 01:19, 18 January 2019

General Principles

The purpose of a jury charge is to "educate the decision-maker so that it will make an informed decision, not to tell the decision-make what decision to make".[1]

An accused person is "entitled to a properly, not perfectly, instructed jury".[2]

Judges are afforded some flexibility in the language they use in a jury instruction.[3]

It is through the "instructions that the jury must appreciate the value and effect of the evidence in the context of the legal issues."[4]

A jury charge must be "even-handed" and the instructions "fair and balanced." At no time should sides be taken or editorial comments made.[5]

The charge should not be a "partisan broadcast".[6]

A judge may never direct the jury to find an element proven in light of the evidence at trial. This error cannot be cured by s. 686(1)(b)(iii).[7]

A new trial is not warranted unless there is a "realistic possibility" that the instructions, within the context of the charges as a whole and the positions of the parties, may have misled the jury.[8]

Instructions are not to be reviewed "to determine the extent to which they adhere to or depart from some particular approach or specific formula". Rather, they must be examined "against their ability to fulfill the purpose for which those instructions are provided."[9]

A failure to object to a jury charge "affords some evidence" to suggest that the charge was not unfair, incomplete or unbalanced.[10] The evidence will especially persuasive where "counsel has had ample opportunity to review draft of proposed instructions and ample time to offer suggestions for inclusions, deletions and improvements". [11]

The instructing judge is responsible for "review of the evidence and ... to relate the evidence to the position of the defence"[12]

An instructing judge "must set out in plan and understandable terms the law that the jury must apply when assessing the facts".[13]

The "final instructions must leave the jury with a clear understanding of the factual issues to be resolved, the legal principles governing the factual issues, the evidence adduced at trial, the position of the parties and the evidence relevant to the positions of the parties on those issues".[14]

When reviewing the quality of instructions the judge "must not proceed on the assumption that jurors are morons, completely devoid of intelligence and totally incapable of understanding a rule of evidence".[15]

Except in rare circumstances, the "trial judge must review the substantial parts of the evidence and give the jury the position of the defence so that the jury can appreciate the value and effect of the evidence"[16]

Review of evidence should include not simply summary of witness evidence but also available exhibits.[17]

The trial judge should not share his evidence notes to the judge even if both counsel find it acceptable.[18]

Decision Trees

A decision tree given to the jury by the instructing judge does not constitute part of the instructions. It is a deliberative aid.[19]

The use of annotations on the decision tree to indicate the burden and standard of proof has been suggested as being "helpful".[20]

Presumptions

It is presumed that juries act reasonably in their verdict, are able to absorb the "gist" of the judge's instructions, and are able to follow them.[21]

Review

In appellate review of instructions, the issue is whether "in the context of the whole charge" whether there is a "reasonable possibility that the trial judges erroneous instructions may have misled the jury into improperly applying the [legal standard]".[22]

Evidence misleading the jury can come for sources including the matters bought up in post-charge instructions and questions from the jury.[23]

Model Instructions

Model jury instructions are meant to be a sample from which adjustments can be made to craft appropriate jury insturctions for a particular case.[24]

  1. R v Bradley, 2015 ONCA 738 (CanLII), per Watt JA at para 184
  2. R v PJB, 2012 ONCA 730 (CanLII), per Watt JA (3:0) at para 41
    R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314, per Lamer CJ (4:3), at paras 1 to 2, 62
  3. R v Elder, 2015 ABCA 126 (CanLII), per curiam (3:0), at para 13
    R v Araya, 2015 SCC 11 (CanLII), per Rothstein J (5:0) at para 3
    R v Avetysan, 2000 SCC 56 (CanLII), [2000] 2 SCR 745, per Major J (4:1), at para 9
  4. R v Karaibrahimovic, 2002 ABCA 102 (CanLII), (2002), 164 CCC (3d) 431, per Fraser CJ, at para 33
  5. R v Largie [2010] OJ No 3384 (ONCA), 2010 ONCA 548 (CanLII), per Watt JA (3:0)
  6. Bradley, supra at para 184
  7. R v Tehrankari, 2012 ONCA 718 (CanLII), per Weiler JA (3:0)
  8. R v Leroux, 2008 ABCA 9 (CanLII), per curiam (3:0), at para 27 citing R v Heil, 2005 ABCA 397 (CanLII), per Russell JA (3:0)
  9. R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA (3:0) at para 150
    Jacquard, supra at paras 32 and 41
    MacKinnon, supra, at para 27
  10. Bradley, supra at para 186
    R v Huard, 2013 ONCA 650 (CanLII), per Watt JA (3:0) at para 74
    Jacquard, supra at para 35 to 37
  11. Bradley, supra at para 186
    Huard, supra, at para 74
  12. Melvin, supra at 31
    PJB, supra at para 43
  13. R v Daley, 2007 SCC 53 (CanLII), per Bastarache J (5:4) at para 32
  14. R v PJB, 2012 ONCA 730 (CanLII), per Watt JA (3:0) at 42
    R v Melvin, 2016 NSCA 52 (CanLII), per Farrar JA (3:0) at para 31
  15. R v Lane and Ross, 1969 CanLII 545 (ONSC), [1970] 1 CCC 196, per Addy J
  16. Melvin, ibid. at 31 PJB, supra at para 44
  17. Eg see Melvin, supra, at paras 39 to 40
  18. R v Bouchard, 2013 ONCA 791 (CanLII), per Doherty JA (2:1)
  19. Bradley, supra at para 142
  20. R v Spaniver, 2006 SKCA 139 (CanLII), per Richards JA (3:0) at para 41
  21. R v Gallie, 2015 NSCA 50 (CanLII), per Fichaud JA, at para 38
    R v Corbett, [1988] 1 SCR 670, 1988 CanLII 80 (SCC), per Dickson CJ, paras 41-48
    R v Elkins, 1995 CanLII 3510 (ON CA), [1995] OJ No 3228 (C.A.), per Doherty JA (3:0), para 27
    R v Suzack, 2000 CanLII 5630 (ON CA), [2000] OJ No 100 (QL) (C.A.), per Doherty JA, at para 128
    R v Carrière, 2001 CanLII 8609 (ON CA), [2001] OJ No 4157 (C.A.), per Doherty JA (3:0), at para 42
    R v Ward, 2011 NSCA 78 (CanLII), per Saunders JA, paras 37-39, leave denied
    R v Greenwood, 2014 NSCA 80 (CanLII), per Fichaud JA, para 143
  22. R v Brydon, 1995 CanLII 48 (SCC), per Lamer CJ at paras 21 and 25 - in context of the legal standard of proof beyond a reasonable doubt.
  23. Gallie, supra, at para 60
  24. e.g. R v McNeil 2006 CanLII 33663 (ON CA), (2006), 84 O.R. (3d) 125 (C.A.), per Doherty JA (3:0), at para 21
    R v Rowe, 2011 ONCA 753 (CanLII), per Doherty JA (3:0) at para 62

Components of a Jury Instruction

A recommended instruction should generally include some basic components such as:[1]

  • an explanation on the presumption of innocence;
  • an explanation of the burden of proof; and
  • an explanation of how to assess credibility and reliability of witnesses' testimony.

Any good instruction should include at least five components:[2]

  1. the legal framework, typically the elements of the offence or offences with which the accused is charged;
  2. the factual issues arising out of the legal framework that the jury must resolve;
  3. the material evidence relevant to these issues;
  4. the position of the Crown and defence on these issues; and
  5. the evidence supporting each of their positions on these issues.

The jury should be able to appreciate "the value and effect of that evidence, and how the law is to be applied to the facts as they find them".[3]

Elements of Clarity
The instructions must give the jury a clear understanding of:[4]

  1. the factual issues to be resolved;
  2. the legal principles governing the factual issues and the evidence adduced at trial;
  3. the positions of the parties; and
  4. the evidence relevant to the positions of the parties on the issues.
  1. R v Newton, 2017 ONCA 496 (CanLII), per Laskin JA (3:0) at para 11
  2. Newton, ibid., at para 11
  3. Newton, ibid., at para 11
  4. R v PJB, 2012 ONCA 730 (CanLII), per Watt JA (3:0) at para 42 citing R v MacKinnon, 1999 CanLII 1723 (ONCA), per Doherty JA (3:0) at para 27
    R v Nadarajah, 2009 ONCA 118 (CanLII), per Goudge JA (3:0) at para 37
    R v Knox, 2017 SKCA 8 (CanLII), per Ottenbreit JA (3:0) at para 16
    R v Huard, 2013 ONCA 650 (CanLII), per Watt JA (3:0) at para 50
    R v Daley, 2007 SCC 53 (CanLII), per Bastarache J, at para 29

Pre-Charge Conference

Before beginning deliberations, the judge will hold a pre-charge conference where the parties will provide input on the form of the charge:

Pre-charge conference
650.1 A judge in a jury trial may, before the charge to the jury, confer with the accused or counsel for the accused and the prosecutor with respect to the matters that should be explained to the jury and with respect to the choice of instructions to the jury.
1997, c. 18, s. 78.


CCC

Pre-charge conference should be held in the presence of the accused and on the court record.[1]

An agreement on instructions at the pre-charge conference, which includes an absence of objection, that are reflected in the trial judge's instructions is a "significant factor" in assessment the adequacy of the instructions on appeal. [2]

  1. R v Simon, 2010 ONCA 754 (CanLII), per Watt JA (3:0 )
  2. R v Bouchard, 2013 ONCA 791 (CanLII), per Doherty JA (2:1)

Post-Charge Procedure

Once the jury has been charged, the jury is directed to "retire" to decide on the issues befor them.[1]

Where there are more that 12 jurors, the judge will perform a random draw of juror names to have them discharged until there are 12 remaining.[2]

  1. s. 652.1(1) states ("After the charge to the jury, the jury shall retire to try the issues of the indictment."
  2. see s. 652.1(2) for details on the process

Specific Instructions

Rhetorical Questions

Rhetorical questions are generally undesirable in the instructions as it may tend to show some bias.[1]

  1. R v Baltovich, 2004 CanLII 45031 (ON CA), (2004), 73 O.R. (3d) 481, per curiam (3:0), at para 146 ("[Rhetorical questions] should be avoided in the jury charge, lest the trial judge be seen as taking up the Crown's cause and casting off the mantle of objectivity.")

Instructions During Deliberations

Deadlocked Juries

Where the jury is deadlocked the judge may give an exhortation to encourage the jury to make effort to reach agreement. The judge must be careful and balanced during the exhortation to a deadlocked jury. The jury will likely be frustrated and disgruntled and so must be handled appropriately.[1]

The judge should not do anything that may treat particular jurors as misunderstood or that pits one jurors against the others. [2]

It is not relevant to examine whether the jurors were affected by any of the instructions of the judge.[3]

The judge must make it clear to the jury throughout his instructions that they are "not obliged to render a verdict" if they cannot reach a consensus.[4]

  1. R v RMG, 1996 CanLII 176 (SCC), [1996] 3 SCR 362, per Cory J (7:2), at para 15
  2. R v Vivian, 2012 ONCA 324 (CanLII), per MacPherson JA (3:0) at para 47
  3. Vivian at para 61
  4. See R v Chahal, 2008 BCCA 529 (CanLII), per Smith JA (3:0)

Jury Questions

During the deliberations of a jury, they are permitted to submit questions to the court and counsel. Jury questions indicate some of the problems the jurors are having in deliberating and seek help from the trial judge.[1]

Answers to questions carry "an influence far exceeding instructions given".[2]

Where a jury question is unclear, the judge should seek clarification before attempting to provide an answer.[3]

Jury questions must be answered "clearly, correctly and comprehensively".[4]

A proper answer should improve the jury’s “understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case.”[5]

However, the response should be timely as well. Delay without instructions the jury to cease deliberations where the question reflects a misunderstanding is open to risk of corrupting the verdict.[6]

A judge should not communicate with the jury by sending notes with unsolicited information without the input on counsel.[7]

Any errors in a response to a jury cannot be remedied simply by referring back to the correctness of original charge.[8]

An answer should never discourage further questions on any subject.[9]

In responding to a jury question, it is often advisable that the judge invite the jury to return with further questions if the response does not assist.[10]

In answering a question regarding the standard of proof of "beyond a reasonable doubt", there is nothing per se wrong with simply reciting the standard anew.[11]

It is an inadequate answer to respond "yes" to the jury question that I asked "do we consider all of the evidence for all charges?".[12]

A question may find it necessary to "instruct the jury in a manner that does not accord with the theory advanced by either Crown or defence counsel".[13] This is permissible because the jury is not bound by the opposing theories of Crown and defence.[14] However, limitations exist on this flexibility for the purpose of preserving trial fairness.[15]

  1. R v MT, 2012 ONCA 511 (CanLII), per Watt JA (3:0) at para 114 (questions "indicate that that at least some jurors are having a problem with an issue in the case.")
    R v W. (D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, per Cory J (3:2), at pp. 759-760
    R v WDS, 1994 CanLII 76 (SCC), [1994] 3 SCR 521, per Cory J (5:2), at pp. 528-529 / para 14 to 18
  2. R v Grandine, 2017 ONCA 718 (CanLII), per Brown JA (3:0) at para 62
    R v Naglik, 1993 CanLII 64 (SCC), [1993] 3 SCR 122, at p. 139
    WDS, supra at para. 16
  3. R v Shannon, 2011 BCCA 270 (CanLII), per Finch JA (3:0)
  4. W.(D.), at pp. 759-760
    S.(W.D.) at 528, 530 (SCR) - it is judge's obligation to answer "fully" and "properly" with the assistance of counsel
    R v Layton, 2009 SCC 36 (CanLII), [2009] 2 SCR 540, per Rothstein J (5:2), at para 20
    Grandine, supra, at para 62
    R v Stubbs, 2013 ONCA 514 (CanLII), per Watt JA (3:0) at para 95
  5. PJB, supra, at para 44
  6. R v Ellis, 2013 ONCA 9 (CanLII), per Watt JA (3:0) at para 42
  7. R v Edwards, 2002 CanLII 41587 (ON CA), per curiam (3:0)
  8. S(WD) at pp. 530 to 531 (SCR)
  9. R v Layton, [2009] 2 SCR 540, 2009 SCC 36 (CanLII), per Rothstein J (5:2) at para 33
  10. R v Layton, 2008 MBCA 118 (CanLII), per Hamilton JA
  11. Layton, ibid. at para 29, 32
  12. Melvin, supra at paras 52 to 53
  13. R v Ranger, 2003 CanLII 32900 (ONCA), per Charron JA (3:0) at para 135
    Grandine, supra, at para 63
  14. Grandine, supra, at para 63
  15. Grandine, supra, at para 63
    R v Largie, 2010 ONCA 548 (CanLII), per Watt JA (3:0) at para. 161

Failing to Answer Jury Questions

Where a jury asks a question and then withdraws before it is answered by the judge will not render the verdict invalid. The judge need not answer the question for the jury.[1]

A jury may withdraw a question simply by announcing it is ready to give a verdict.[2]

It may be recommended that once the jury is ready despite not having the question answered, that the court canvas both counsel and the jury about whether the question should still be answered.[3]

  1. R v Sit (1989) 47 CCC (3d) 45 (ONCA), 1989 CanLII 7194 (ON CA), per Finlayson JA (2:1) at pp. 57-58
    see also R v Ellis, 2013 ONCA 9 (CanLII), per Watt JA (3:0)
  2. R v Lavoie, 1990 CanLII 4038 (NB CA), (1990), 107 N.B.R. (2d) 181 (N.B.C.A.), per Hoyt JA (3:0)
  3. R v Jones, 2011 ONCA 584 (CanLII), per Laskin JA (3:0) at para 55, 56

Recharge of Jury

The answer may result in a "recharge" of the jury. These recharges "must be correct and comprehensive no matter how exemplary the original charge may have been".[1]

An error in recharge cannot be forgiven simply because the original charge was correct.[2] In fact, the more time that passes between the original charge and recharge, the greater imperative that the recharge be "correct and comprehensive".[3]

  1. R v S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 SCR 521, per Cory J (5:2) at pp. 530-531
  2. S(WD), ibid. at pp. 530-531
  3. S(WD), ibid. at p. 531

Errors in Instructions

Instructions must be "fair and balanced".[1]

A fair instruction requires that "the charge explain the theories of each side and review the salient facts in support of those theories.[2]

The appropriateness of instructions must be analyzed "as a whole and its overall effect".[3]

Where instructions are given on a point of law, the reviewing court should look at the instructions as a whole and consider whether the jury would not have understood the law correctly.[4]

Repetitions of instructions on law correctly may remedy a single instance of an incorrect instruction.[5]

A failure to give instruction on an issue can be a "non-direction amounting to a misdirection".[6]

A charge should not be "endlessly dissected and subjected to minute scrutiny and criticism".[7]

Closing arguments of counsel cannot have the effect of making inadequate instructuon become adequate and do not relieve the trial judge of their duties in giving instructions.[8]

  1. R v Baltovich, 2004 CanLII 45031 (ON CA), (2004) 73 OR (3d) 481 (CA), per curiam at para 118
    R v Jeanvenne, 2016 ONCA 101 (CanLII), per Weiler JA, at para 31
  2. R v Daley, 2007 SCC 53 (CanLII), per Bastarache J (5:4) at para 29
    Jeanvenne, supra, at para 31
  3. Daley, supra, at para 31
    Jeanvenne, supra, at para 33
  4. R v Rodgerson, 2014 ONCA 366 (CanLII), per Doherty JA, at paras 23 to 26 - instructions on murder
    R v Jaw, 2009 SCC 42 (CanLII), [2009] 3 SCR 26, per LeBel J (7:2), at para 32 (“[a]n appellate court must examine the alleged error in the context of the entire charge and of the trial as a whole”)
  5. e.g. Rodgerson, supra - repeated instructions on murder corrected error
  6. R v Menard, 2009 BCCA 462 (CanLII), per curiam (3:0)
  7. R v Cooper, 1993 CanLII 147 (SCC), [1993] 1 SCR 146, per Cory J (6:1), at p. 163
  8. R v Melvin, 2016 NSCA 52 (CanLII), per Farrar JA at paras 72 to 73 PJB at para 47

Appeal

See also: Appeals

Standard of Review
Misdirection of a jury (not including non-direction of a jury) is a question of law.[1]

Whether a judge erred in misdirecting or failing to direct a jury is reviewed on a standard of correctness.[2]

Functional Approach to Review
An appellate court should assess a jury charge "functionally". It is not an idealized approach considering whether better instructions could have been given.[3]

The adequacy of jury instructions is analyzed using "a functional approach" which is "based on the evidence at trial, the live issues raised and the submissions of counsel."[4]

The reviewing judge should determine whether the accused, based on the review of the whole charge, has had a fair trial. It is not to look for minute errors. [5]

The Court should consider whether the instructions had the ability to fulfill their purpose and not simply whether they diverted from a formula.[6]

This analysis must be in light of factors including:[7]

  • the live issues at trial,
  • the position of the parties,
  • the overall effect of the charge.


Jury's Failure to Follow Instructions
Evidence that the jury had demonstrably not followed the jury instructions may cause a miscarriage of justice.[8]

Defences

All defences that have an air of reality are to be put to the jury, even if not raised by counsel.[9]

  1. R v Luciano, 2011 ONCA 89 (CanLII), per Watt JA, at para 70
  2. R v Waite, 2013 ABCA 257 (CanLII), per Rowbotham JA (2:1) at para 11
  3. R v Jacquard (C.O.), 1997 CanLII 374 (SCC), [1997] 1 SCR 314, per Lamer CJ (4:3) at para 32
    R v Cooper, 1993 CanLII 147 (SCC), [1993] 1 SCR 146, per Cory J at pp. 163-164
  4. R v Howe, 2015 NSCA 84 (CanLII), per Farrar JA at para 67
  5. R v Korski (C.T.), 2009 MBCA 37 (CanLII), 236 Man.R. (2d) 259, per Steel JA (3:0), at para 102
    Cooper, supra at p. 163
    R v Luciano, 2011 ONCA 89 (CanLII), per Watt JA, at para 71
    zeau v The Queen, 1976 CanLII 7, [1977] 2 SCR 277, per Martland J (7:2) at p. 285
    R v Kociuk (R.J.), 2011 MBCA 85 (CanLII), per Chartier JA (2:1) at paras 69 to 72
    Jacquard, supra
  6. R v MacKinnon 1999 CanLII 1723 (ON CA), (1999), 132 CCC (3d) 545 (Ont. C.A.), per Doherty JA (3:0), at para 27
  7. R v Johnson, 2017 NSCA 64 (CanLII), per Beveridge JA (3:0) at para 47
  8. R v Richard, 2013 MBCA 105 (CanLII), per Cameron JA (3:0)
  9. R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3, per McLachlin CJ and Bastarache J

See Also