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'''Functional Approach to Review'''<br>
; 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.<ref>
An appellate court should assess a jury charge "functionally". It is not an idealized approach considering whether better instructions could have been given.<ref>
''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 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>

Revision as of 21:25, 1 February 2019

General Principles

Judges are afforded some flexibility in the language they use in a jury instruction.[1]

The trial judge will typically instruct the jury on these topics:[2]

  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".[3]

An instructing judge "must set out in plan and understandable terms the law that the jury must apply when assessing the facts".[4]

It is through the "instructions that the jury must appreciate the value and effect of the evidence in the context of the legal issues."[5]

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".[6]

The instructing judge is responsible for "review of the evidence and ... to relate the evidence to the position of the defence"[7]

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."[8]

Fair and Neutral Instructions

An accused person is "entitled to a properly, not perfectly, instructed jury".[9]

A jury charge must be "even-handed" and the instructions "fair and balanced." At no time should sides be taken or editorial comments made.[10]

The charge should not be a "partisan broadcast".[11]

Presumed Sophistication of Jury

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".[12]

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"[13]

Review of evidence should include not simply summary of witness evidence but also available exhibits.[14]

Inappropriate Direction to Jury

The trial judge should not share his evidence notes to the jury even if both counsel find it acceptable.[15]

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).[16]

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.[17]

The use of annotations on the decision tree to indicate the burden and standard of proof has been suggested as being "helpful".[18]

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.[19]

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]".[20]

Evidence misleading the jury can come for sources including the matters bought up in post-charge instructions and questions from the jury.[21]

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.[22]

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.[23]

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.[24] 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". [25]

  1. ↑ 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
  2. ↑ R v Daley, 2007 SCC 53 (CanLII), per Bastarache J (5:4), at para 29
  3. ↑ R v Bradley, 2015 ONCA 738 (CanLII), per Watt JA, at para 184
  4. ↑ 32, supra
  5. ↑ R v Karaibrahimovic, 2002 ABCA 102 (CanLII), (2002), 164 CCC (3d) 431, per Fraser CJ, at para 33
  6. ↑ 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
  7. ↑ Melvin, supra at 31
    PJB, supra, at para 43
  8. ↑ 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
  9. ↑ PJB, supra, 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
  10. ↑ R v Largie, [2010] OJ No 3384 (ONCA), 2010 ONCA 548 (CanLII), per Watt JA (3:0)
  11. ↑ Bradley, supra, at para 184
  12. ↑ R v Lane and Ross, 1969 CanLII 545 (ONSC), [1970] 1 CCC 196, per Addy J
  13. ↑ Melvin, ibid. at 31 PJB, supra, at para 44
  14. ↑ Eg see Melvin, supra, at paras 39 to 40
  15. ↑ R v Bouchard, 2013 ONCA 791 (CanLII), per Doherty JA (2:1)
  16. ↑ R v Tehrankari, 2012 ONCA 718 (CanLII), per Weiler JA (3:0)
  17. ↑ Bradley, supra, at para 142
  18. ↑ R v Spaniver, 2006 SKCA 139 (CanLII), per Richards JA (3:0) at para 41
  19. ↑ 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
  20. ↑ 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.
  21. ↑ Gallie, supra, at para 60
  22. ↑ 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)
  23. ↑ 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
  24. ↑ Bradley, supra, at para 186
    R v Huard, 2013 ONCA 650 (CanLII), per Watt JA (3:0) at para 74
    Jacquard, supra, at paras 35 to 37
  25. ↑ Bradley, supra, at para 186
    Huard, supra, at para 74

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

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[1]
  • any special directions.
Accused Must be Present

Pre-charge conference should be held in the presence of the accused and on the court record.[2]

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. [3]

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.[4]

  1. ↑ R v Coughlin, 1995 ABCA 318 (CanLII)
  2. ↑ R v Simon, 2010 ONCA 754 (CanLII), per Watt JA (3:0)
  3. ↑ R v Bouchard, 2013 ONCA 791 (CanLII), per Doherty JA (2:1)
  4. ↑ R v Jacquard, [1997] 1 SCR 314, 1997 CanLII 374 (SCC), per Lamer CJ (4:3)
    R v Karaibrahimovic, 2002 ABCA 102 (CanLII), per Fraser JA

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

Reviewed Wholistically

The appropriateness of instructions must be analyzed "as a whole and its overall effect".[1]

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.[2]

Corrections

Repetitions of instructions on law correctly may remedy a single instance of an incorrect instruction.[3]

Non-Direction vs Misdirection

A failure to give instruction on an issue can be a "non-direction amounting to a misdirection".[4]

Level of Detail

A charge should not be "endlessly dissected and subjected to minute scrutiny and criticism".[5]

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.[6]

Fairness of Instructions

Instructions must be "fair and balanced".[7]

A fair instruction requires that "the charge explain the theories of each side and review the salient facts in support of those theories.[8]

Fairness of instructions cannot be measured by the amount of time spent by the judge on each party's evidence.[9]

  1. ↑ Daley, supra, at para 31
    Jeanvenne, supra, at para 33
  2. ↑ 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”)
  3. ↑ e.g. Rodgerson, supra - repeated instructions on murder corrected error
  4. ↑ R v Menard, 2009 BCCA 462 (CanLII), per curiam (3:0)
  5. ↑ R v Cooper, 1993 CanLII 147 (SCC), [1993] 1 SCR 146, per Cory J (6:1), at p. 163
  6. ↑ R v Melvin, 2016 NSCA 52 (CanLII), per Farrar JA at paras 72 to 73 PJB, supra at para 47
  7. ↑ 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
  8. ↑ R v Daley, 2007 SCC 53 (CanLII), per Bastarache J (5:4) at para 29
    Jeanvenne, supra, at para 31
  9. ↑ R v Greenwood, 2014 NSCA 80 (CanLII), per Fichaud JA
    R v Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652, per Dickson CJ, at para 86

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
    Vézeau 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

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