Jury Instructions

This page was last substantively updated or reviewed July 2021. (Rev. # 95392)

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General Principles

The trial judge is afforded deference to their chosen approach to properly instruct a jury. Review must be "functional" and "contextual."

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

The trial judge will typically instruct the jury on these topics:

1. instruction on the relevant legal issues, including the charges faced by the accused;
2. an explanation of the theories of each side;
3. a review of the salient facts which support the theories and case of each side;
4. a review of the evidence relating to the law;
5. a direction informing the jury they are the masters of the facts and it is for them to make the factual determinations;
6. instruction about the burden of proof and presumption of innocence;
7. the possible verdicts open to the jury; and
8. the requirements of unanimity for reaching a verdict.

Objectives of Instructions

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."

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

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

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."

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

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."

Fair and Neutral Instructions

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

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

The charge should not be a "partisan broadcast."

Presumed Ability and Sophistication of Jury

Our jury system is "predicated on the proposition that jurors follow a trial judge's limiting instructions."

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."

Review of Evidence

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"

Review of evidence should include not simply a summary of witness evidence but also available exhibits.

Limiting Instructions

There are instances where the trial judge must give "limiting" instruction cautioning against the misuse of the evidence. A limiting instruction should only be required where there is a "real risk" that validly admitted evidence "could be used by the jury for an improper purpose."

Inappropriate Direction to Jury

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

A judge may never direct the jury to find an element proven in light of the evidence at trial. Such a decision is always a determination of the jury. This error cannot be cured by s. 686(1)(b)(iii).

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.

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

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.

Appellate 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]."

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

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.

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.

Failure to Object

A failure to object to a jury charge "affords some evidence" to suggest that the charge was not unfair, incomplete or unbalanced. 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."

Components of a Jury Instruction

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

• 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:

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."

Elements of Clarity

The instructions must give the jury a clear understanding of:

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.

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 (CanLII), (DOJ)

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Purpose of Conference

The purpose of the conference is to review the anticipated instructions covering:

• the offence, including lesser included offences
• the theories of the case for each party
• any special directions.

Accused Must be Present

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

Consequence of Agreement on Charge

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.

Failure to Raise Issues

Any failure to raise any issues on the instruction or to otherwise object will be a factor the appellate court considers when reviewing the jury instructions.

Post-Charge Procedure

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

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.

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.

Questions and Instructions During Deliberations

• Jury Deliberations

Errors in Instructions

Reviewed Wholistically

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

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.

Corrections

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

Non-Direction vs Misdirection

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

Level of Detail

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

Closing Address Does Not Fix Instructions

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

Fairness of Instructions

Instructions must be "fair and balanced."

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

Fairness of instructions cannot be measured by the amount of time spent by the judge on each party's evidence.

Theory of the Case

Before a party's theory can be put to a jury, the record must reveal "some evidence on the basis of which a reasonable jury, acting judicially, could make affect actual/could make the factual findings necessary to ground liability" on the basis of that theory

Any defence theory "realistically available on the totality of evidence" should be left with the jury.

Appeal

Standard of Review

Misdirection of a jury (not including non-direction of a jury) is a question of law.

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

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.

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."

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.

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

This analysis must be in light of factors including:

• 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.

Defences

All defences that have an air of reality are to be put to the jury, even if not raised by counsel. There is "no cardinal rule against putting to a jury an alternative defence that is at first glance incompatible with the primary defence. The issue is not whether such a defence is compatible or incompatible with the primary defence, but whether it meets the air of reality test.."

See Also

• Jury Procedure
• Example Jury Instructions
• Model Jury Instructions