Jury Instructions: Difference between revisions

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==Specific Instructions==
==Specific Instructions==
===Standards of Proof===
* [[Established Areas of Jury Instruction]]
Where the jury asks a question clarifying the meaning of reasonable doubt. The judge should not simply reiterate the standard of proof instructions, but should explain the difference of the standard of "balance of probabilities" and "proof beyond all doubt".<ref>
R v Layton, [http://canlii.ca/t/217bw 2008 MBCA 118] (CanLII)
</ref>
 
When reviewing the instructions on the standard of proof the question is "in the context of the whole charge", whether there is a "reasonable possibility that the trial judge's erroneous instruction may have misled the jury into improperly applying the reasonable doubt standard".<ref>
R v Brydon, [1995] 4 SCR 253, [http://canlii.ca/t/1frgk 1995 CanLII 48] (SCC), at paras 21 and 25 per Lamer CJC<br>
R v Gallie, [http://canlii.ca/t/gj1fx 2015 NSCA 50] (CanLII) at para 55<br>
</ref>
 
It is not necessary that the jury be explicitly told that "reasonable doubt" is "much closer" to absolute certainty than proof on balance of probabilities.<ref>
R. v Archer (2005), [http://canlii.ca/t/1lrjq 2005 CanLII 36444] (ON CA), 202 CCC (3d) 60, at paras 36 to 38 per Doherty JA</ref>
 
When reviewing the standard of proof beyond a reasonable doubt on a case that turns on identity, it important to couch the instructions "in terms of the frailties of eyewitness identification".<ref>
R v Gordon, [http://canlii.ca/t/gpr4b 2016 SKCA 58] (CanLII), at para 5<Br>
R v Burke, [http://canlii.ca/t/1frb7 1996 CanLII 229] (SCC), [1996] 1 SCR 474<Br>
R v Quercia (1990), [http://canlii.ca/t/1npnc 1990 CanLII 2595] (ON CA)<br>
</ref>
 
{{reflist|2}}
 
===Credibility===
The judge does not need to give a [[Weighing Testimony of the Accused|WD instruction]] or its functional equivalent in relation to every piece of evidence relied upon by the accused.<ref>
R v Simon, [http://canlii.ca/t/2d7j6 2010 ONCA 754] (CanLII) at paras 82-84, 89-90<br>
R v BD, [http://canlii.ca/t/2fbx2 2011 ONCA 51] (CanLII) at para 114<br>
R v MR, [http://canlii.ca/t/1jx91 2005 CanLII 5845] (ON CA), (2005), 195 CCC (3d) 26 (Ont. C.A.) at para 46<br>
R v Chenier, [http://canlii.ca/t/1mjx9 2006 CanLII 3560] (ON CA), (2006), 205 CCC (3d) 333 (Ont. C.A.), at paras 374-375<br>
</ref>
 
the WD instructions do not need to be recited to the jury as if it was a "magic incantation".<ref>
R v JHS, [http://canlii.ca/t/1x1bb 2008 SCC 30] (CanLII), [2008] 2 SCR 152 at para 13<br>
R v WDS, [http://canlii.ca/t/1frq0 1994 CanLII 76] (SCC), [1994] 3 SCR 521 at p. 533 (SCR)<br>
</ref>
 
{{Reflist|2}}
 
===Circumstantial Evidence===
A judge is permitted but not obligated to "outline the inferences that may or may not be available from some circumstantial evidence adduced at trial". <Ref>
R v Bradley, [http://canlii.ca/t/glw8d 2015 ONCA 738] (CanLII) at para 185<Br>
</ref>There is no need to "catalogue all available inferences" from each piece of evidence.<ref>
Bradley{{ibid}} at para 185<Br>
</ref>
It is only obligation for the judge on circumstantial evidence to "clearly" explain the necessity of finding guilt beyond a reasonable doubt and how there may be more than one way to achieve the objective.<Ref>
R v Guiboche, [http://canlii.ca/t/1gf79 2004 MBCA 16] (CanLII) at para 109 ("...in discussing circumstantial evidence, that the judge fulfills his or her obligations if the jury is made clearly aware of the necessity to find the guilt of the accused to have been established beyond a reasonable doubt and that there are more ways than one to achieve that objective.")<Br>
R v Fleet (1997), [http://canlii.ca/t/6hm2 1997 CanLII 867] (ON CA), 120 C.C.C. (3d) 457 at para 20<Br>
</ref>
 
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===Reliability===
Instructions that direct the jury to presume any incriminating parts of an accused's statement are likely true, while exculpatory statements carry less weight are known as "Duncan instructions" and should be avoided as they tend to confuse the jury.<ref>
R v Illes, [http://canlii.ca/t/218ct 2008 SCC 57] (CanLII)
</ref>
 
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===Effect of Multiple Complainants===
Where there are multiple complainants each associated with different counts and no similar fact application has been made, the judge should give limiting instructions on the use of the evidence. The
judge should remind the jury that they may not use evidence relating to a particular count to determine if another count is made out. They future cannot use any of the evidence to establish bad character and a greater likelihood that the accused is guilty.<ref>
R v D.L.W., [http://canlii.ca/t/fz49v 2013 BCSC 1016] (CanLII) at para 10, 11<br>
R v M. (B.) [http://canlii.ca/t/1nptj 1998 CanLII 13326] (ON CA), (1998), 42 O.R. (3d) 1 at 14 (C.A.)<br>
R v Rarru, [http://canlii.ca/t/1fr9k 1996 CanLII 195] (SCC), [1996] 2 SCR 165 at 165-66<br>
R v W. (L.K.) [http://canlii.ca/t/1f9pn 1999 CanLII 3791] (ON CA), (1999), 138 CCC (3d) 449 at para 93 (Ont. C.A.)<br>
</ref>
 
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===Reviewing the Evidence===
A trial judge must review the evidence for the jury so that they can appreciate how the law is applied to the facts that they find. <ref>
Azoulay v The Queen, [http://canlii.ca/t/1nlgg 1952 CanLII 4] (SCC), [1952] 2 SCR 495 at 497-98<br>
see also R v Daley, [http://canlii.ca/t/1v5dr 2007 SCC 53] (CanLII), [2007] 3 SCR 523, at para 54<br>
</ref> The review should be of "substantial parts" of the evidence in order to "relate it to the issues that the jury is or may be required to decide so that the jury appreciate the nature and effect of the evidence and its relationship to the defence advanced".<ref>
Tomlinson, [http://canlii.ca/t/g51wx 2014 ONCA 158] (CanLII), at para 146<br>
R v Cooper, [http://canlii.ca/t/1fs5v 1993 CanLII 147] (SCC), [1993] 1 SCR 146, at p. 163<br>
R v Jacquard, [http://canlii.ca/t/1fr4h 1997 CanLII 374] (SCC), [1997] 1 SCR 314, at para 14<br>
</ref>
 
'''Substantial Review and Relating it to Issues'''<br>
There is no obligation to review all of the evidence at trial, it need not be exhaustive.<ref>
R v MacKinnon, [http://canlii.ca/t/1f971 1999 CanLII 1723] (ON CA), (1999), 43 O.R. (3d) 378 (C.A.), at paras 29-30<br>
R v Daley, at paras 55-56<br>
R v B.(P.J.), [http://canlii.ca/t/ftj2j 2012 ONCA 730] (CanLII), 97 C.R. (6th) 195, at para 45<br>
</ref>
Also a failure to mention items of evidence will not be fatal where the omission did not constitute the sole evidentiary foundation for a defence.<ref>
R v Demeter, [http://canlii.ca/t/g14jp 1975 CanLII 685] (ON CA), (1975), 25 CCC (2d) 417 (Ont. C.A.), at p. 436 cited in PJB at para 46<br>
B(PJ){{supra}} at para 46<br>
</ref>
The extent of the review will vary from case-to-case.<ref>
Daley at para 57</ref>
 
There is "considerable latitude" in reviewing the evidence and relating it to the issues for the jury.<ref>
Daley, at para 57<br>
R v Royz, [http://canlii.ca/t/22wnc 2009 SCC 13] (CanLII), [2009] 1 SCR 423, at para 3<br>
B(PJ){{supra}} at para 46<br>
</ref>
 
A simple "serial review" of the evidence is considered unhelpful to the jury and does not do much to "relate the evidence to the issues".<ref>
Tomlinson{{supra}} at para 149<br>
</ref>
 
The key part of a judge's duty is to review the "substantial parts of the evidence" and explain the position of the defence to the jury.<ref>
Azoulay{{supra}} at pp. 497-498 (SCR)<br>
Daley{{supra}} at para 54<br>
</ref>
The judge should relate the evidence to the positions of the parties by reviewing the "substance of the evidence that bears on each issue and indicating to the jury which parts of the evidence support each party’s position".<ref>
Tomlinson at para 147<br>
R v S(J), [http://canlii.ca/t/ft4q9 2012 ONCA 684] (CanLII), 292 CCC (3d) 202, at para 38<br>
MacKinnon{{supra}} at paras 29-30<Br>
</ref>
In giving the instructions, the judge must relate the evidence heard at trial to the issues raised by defence. This involves first reviewing the evidence and then relating it to the position of the defence so that the jury understand the "value and effect" of the evidence.
<ref>B(PJ){{supra}} at para 44</ref> A judge will often indicate which parts of the evidence supports each parties position on particular issues.<ref>B(PJ){{supra}} at para 44</ref>
 
A jury charge should not be reviewed in isolation, but rather in light of the evidence and closing arguments of counsel.<ref>
R v Stubbs, [http://canlii.ca/t/g01lb 2013 ONCA 514] (CanLII) at para 137<br>
</ref>
 
'''Suggested Formula'''<br>
It has been suggested that a acceptable review of the evidence related to the issues was organized for each issue as:<ref>
Tomlinson{{supra}} at para 172<br>
</ref>
# identified the issue;
# explained the legal requirements of proof;
# summarized the essential features of the evidence that were relevant for the jury to consider in deciding the issue;
# reiterated the Crown’s burden of proof on the issue; and
# described the consequences of the available findings on the issue for further deliberations and for the verdict.
 
'''Strong Crown Cases'''<br>
In overwhelming Crown cases, the judge does not need to ignore evidence that implicates the accused to create a balanced charge, nor does he have to "spin a web of exculpatory inferences" that stretch the available conclusions.<ref>
Stubbs{{supra}} at para 139<br>
</ref> This is particularly applicable where the defence argument is simply that the evidence does not meet the standard of proof.<ref>
Stubbs{{supra}} at para 139</ref>
 
The constitution requires that even when the evidence is "overwhelming" the judge cannot direct the jury to convict.<ref>
R v Krieger, [http://canlii.ca/t/1ptwc 2006 SCC 47] (CanLII), [2006] 2 SCR 501, at para 24<br>
This affirmed the right to "jury nullification"
</ref>
 
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===Jury Warning===
A judge is permitted to provide specific warnings to the jury on certain issues of which they may not be aware of their significance.<Ref>
R v Sutherland, [http://canlii.ca/t/fnr7l 2011 ABCA 319] (CanLII) at 7</ref> Warnings or cautions are not given because the jury is seen an uninformed or unintelligent, but rather to give them knowledge from judicial experience. The warning concerns knowledge beyond the obvious that they can discern themselves. The purpose is to “help the jury appreciate the peculiarly concerning qualities of evidence which must be evaluated with particular caution in light of those concerns”<ref>
see e.g. R v White, [http://canlii.ca/t/fkg70 2011 SCC 13] (CanLII), [2011] 1 SCR 433, 267 CCC (3d) 453 at paras 55 to 60 and para 87 (Rothstein J), paras 105 to 107 and para 130 (Charron J) and
para 185 (Binnie J).</ref>
 
 
{{reflist|2}}
 
===Limited Purpose Evidence===
Generally, evidence of limited admissibility must be accompanied by specific jury instructions that satisfy the following:<ref>R v Largie, [http://canlii.ca/t/2c14p 2010 ONCA 548] (CanLII), 101 O.R. (3d) 561, at para 107</ref>
*identify the evidence to which they apply;
*explain the permitted use of the evidence; and
*explain the prohibited use of the evidence.
 
This includes evidence admitted such as [[Character of Accused|bad character evidence]].
 
A judge must provide limiting instructions on the use of prior statements of witnesses. Without instructions there is a risk that jurors "may not be aware that they cannot use such statements as substantive evidence, irrespective of the use made of the statements by counsel." We cannot safely assume jurors understand the purpose of such evidence. <ref>
R v Bevan, [http://canlii.ca/t/1fs17 1993 CanLII 101] (SCC), [1993] 2 SCR 599 at p. 619<br>
See also R v Kokotailo, [http://canlii.ca/t/1x166 2008 BCCA 168] (CanLII), 254 BCAC 262 at para 44<br>
R v Moir, [http://canlii.ca/t/fvvdt 2013 BCCA 36] (CanLII)<br>
</ref>
 
Failure to give the instructions is an error of law.<ref>
R v M.T., [http://canlii.ca/t/fs52f 2012 ONCA 511] (CanLII) at para 84</ref>
The issue for the appellate court on such an error is whether "any convictions ... can be sustained despite the error of law. Convictions may be upheld providing the error did not cause a substantial wrong or miscarriage of justice".<ref>
R v Van, [http://canlii.ca/t/23mt8 2009 SCC 22] (CanLII), [2009] 1 SCR 716, at para 34<br>
MT{{supra}} at para 85</ref>
 
{{Reflist|2}}
 
===Evidence-related Instructions===
To illustrate the frailties of identification evidence, a judge should not instruct a jury to close their eyes and attempt to accurately picture the person next to them.<ref>
R v Francis, [http://canlii.ca/t/1ck6q 2002 CanLII 41495] (ON CA)</ref>
 
Due to the dangers of bolstering a witnesses credibility through [[Prior Consistent Statements|prior consistent statements]], "a limiting instruction will almost always be required where such statements are admitted."<Ref>
R v Ellard at para 42 per Abella J.<Br>
</ref> The instruction should delineate that "consistency is not the same as accuracy" and should not be used to assess general reliability.<ref>
Ellard{{ibid}} at para 42<Br>
</ref>
 
Submissions and instructions suggesting that a hearsay statement should be relied upon for a verdict can warrant a new trial.<ref>
R v Iyeke, [http://canlii.ca/t/gr7l9 2016 ONCA 349] (CanLII)
</ref>
 
{{reflist|2}}
 
===Defences===
Only where there is an "air of reality" that the evidence can make out the requirements of the defence. The evidential foundation does not exist where "its only constituent elements are of a tenuous, trifling, insignificant or manifestly unsubstantive nature: there must be evidence in the record upon which a properly instructed jury, acting judicially, could entertain a reasonable doubt as to the defence that has been raised."<ref>
R v Fontaine, [http://canlii.ca/t/1gzjq 2004 SCC 27] (CanLII), [2004] 1 SCR 702 at para 56
</ref>Or to put it another way, the test does not consider whether a defence is likely, somewhat likely, unlikely, or very likely. It only considers whether "there is some evidence that puts the defence in play".<ref>Fontaine{{ibid}}</ref>
 
An accused "should not lightly be deprived of the chance to present the defence they are relying upon, and the trier of fact can deal with the deficiencies when examining the defences of their merit.”<ref>Lee Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law Inc., 2011) at page 546</ref>
 
Even with the defence theory is inconsistent to a particular defence, such as self-defence, but the evidence presents a "coherent route…that could lead to an acquittal" on the basis of that defense that it must be put to the jury.<ref>
R v Brar, [http://canlii.ca/t/273w5 2009 BCCA 585] (CanLII)</ref>
 
A charge wil not be "unfair or unbalance" only because the "trial judge did not spend an equal time reviewing the parties' evidence.<Ref>
R v Nelson, 2013 ONCA 853 {{NOCANLII}} at para 47<Br>
</ref>
 
{{reflist|2}}
 
===Rhetoric===
 
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, 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}}
 
===Penalties===
It generally prohibited for the jury to be told about the penalties associated with the charge. They are not to concern themselves with it.<ref>
R v Stevenson, [http://canlii.ca/t/1npnb 1990 CanLII 2594] (ON CA), [1990] O.J. No. 1657 <br>
R v Cracknell, [http://canlii.ca/t/g14nn 1931 CanLII 168] (ON CA), (1931), 56 CCC 190 at 192 (Ont.C.A.)<br>
R v McLean,  [1933] SCR 688, [http://canlii.ca/t/2f2px 1933 CanLII 38] (SCC), (1933), 61 CCC 9 at 13-14 (CCC) <br>
Cathro v The Queen, [1956] SCR 101, [http://canlii.ca/t/21v9z 1955 CanLII 46] (SCC), 113 CCC 225 at 241 (S.C.C.)<br>
Thorne v R, [http://canlii.ca/t/1jhts 2004 NBCA 102] (CanLII) at para 10 - an exception exists for evidence regarding the use of proclamation under s. 67
</ref>
 
{{Reflist|2}}
 
===Expert Opinion Evidence===
The jury instruction on experts should include:<ref>
R v Burnett, [http://canlii.ca/t/hvbfd 2018 ONCA 790] (CanLII), per Watt JA at para 67<br>
</ref>
* a description of the relationship between knowledge of a technical subject, the qualifications of an expert, and their ability to express opinions on the subject;
* a brief summary of the expert evidence adduced at trial;
* and a direction on how to assess the testimony of experts and to determine its impact on the decisions required of the jury at the end of the trial.
 
{{reflist|2}}


==Instructions During Deliberations==
==Instructions During Deliberations==

Revision as of 13:33, 9 October 2018

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 J. At para 184
  2. ↑ R v P.J.B., 2012 ONCA 730 (CanLII) at para 41
    R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314, at paras 1 to 2, 62
  3. ↑ R v Elder, 2015 ABCA 126 (CanLII), at para 13
    R v Araya, 2015 SCC 11 (CanLII) at para 3
    R v Avetysan, 2000 SCC 56 (CanLII), [2000] 2 SCR 745, at para 9
  4. ↑ R v Karaibrahimovic 2002 ABCA 102 (CanLII), (2002), 164 CCC (3d) 431 at para 33
  5. ↑ R v Largie [2010] OJ No 3384 (ONCA), 2010 ONCA 548 (CanLII)
  6. ↑ Bradley at para 184
  7. ↑ R v Tehrankari, 2012 ONCA 718 (CanLII)
  8. ↑ R v Leroux, 2008 ABCA 9 (CanLII) at para 27 citing R v Heil, 2005 ABCA 397 (CanLII)
  9. ↑ Tomlinson, ONCA 158 (CanLII) 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) at para 74
    Jacquard, supra at para 35 to 37
  11. ↑ Bradley, supra at para 186
    Huard, supra at para 74
  12. ↑ Melvin at 31
    PJB at para 43
  13. ↑ R v Daley, 2007 SCC 53 (CanLII) at para 32 per Bastarache J.
  14. ↑ R v PJB, 2012 ONCA 730 (CanLII) at 42
    Melvin, 2016 NSCA 52 (CanLII) at para 31
  15. ↑ R v Lane and Ross, 1969 CanLII 545 (ONSC), [1970] 1CCC 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)
  19. ↑ Bradley, supra at para 142
  20. ↑ R v Spaniver, 2006 SKCA 139 (CanLII) at para 41
  21. ↑ R v Gallie, 2015 NSCA 50 (CanLII) at para 38
    R v Corbett, [1988] 1 SCR 670, 1988 CanLII 80 (SCC), paras 41-48, per Dickson, C.J.C.
    R v Elkins, 1995 CanLII 3510 (ON CA), [1995] O.J. No. 3228 (C.A.), para 27, per Doherty, J.A.
    R v Suzack, 2000 CanLII 5630 (ON CA), [2000] O.J. No. 100 (QL) (C.A.), at para 128, per Doherty, J.A.
    R v Carrière, 2001 CanLII 8609 (ON CA), [2001] O.J. No. 4157 (C.A.), at para 42, per Doherty, J.A.
    R v Ward, 2011 NSCA 78 (CanLII), paras 37-39, leave denied
    R v Greenwood, 2014 NSCA 80 (CanLII), para 143
  22. ↑ R v Brydon, 1995 CanLII 48 (CanLII) at paras 21 and 25 per Lamer CJ. - 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.), at para 21
    R v Rowe, 2011 ONCA 753 (CanLII) 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) at para 11
  2. ↑ Newton, ibid. at para 11
  3. ↑ Newton, ibid. at para 11
  4. ↑ R v P.J.B., 2012 ONCA 730 (CanLII) at para 42 citing R v MacKinnon, 1999 CanLII 1723 (ONCA) at para 27
    R v Nadarajah, 2009 ONCA 118 (CanLII) at para 37
    R v Knox, 2017 SKCA 8 (CanLII) at para 16
    R v Huard, 2013 ONCA 650 (CanLII) 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)
  2. ↑ R v Bouchard, 2013 ONCA 791 (CanLII)

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

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 R.M.G., 1996 CanLII 176 (SCC), [1996] 3 SCR 362, per Cory J. at para 15
  2. ↑ R v Vivian, 2012 ONCA 324 (CanLII) at para 47
  3. ↑ Vivian at para 61
  4. ↑ See R v Chahal, 2008 BCCA 529 (CanLII)

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 M.T., 2012 ONCA 511 (CanLII) 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, at pp. 759-760
    R v WDS, 1994 CanLII 76 (SCC), [1994] 3 SCR 521, at pp. 528-529 / para 14 to 18
  2. ↑ R v Grandine, 2017 ONCA 718 (CanLII) at para 62
    R v Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122, at p. 139
    WDS, supra at para. 16
  3. ↑ R v Shannon, 2011 BCCA 270 (CanLII)
  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, at para 20
    Grandine, supra at para 62
    R v Stubbs, 2013 ONCA 514 (CanLII) at para 95
  5. ↑ R v PJB, at para 44
  6. ↑ R v Ellis, 2013 ONCA 9 (CanLII) at para 42
  7. ↑ R v Edwards, 2002 CanLII 41587 (ON CA)
  8. ↑ S(WD) at pp. 530 to 531 (SCR)
  9. ↑ R v Layton, [2009] 2 SCR 540, SCC 36 (CanLII) at para 33
  10. ↑ Layton, 2008 MBCA 118 (CanLII)
  11. ↑ Layton, ibid. at para 29, 32
  12. ↑ Melvin, supra at paras 52 to 53
  13. ↑ R v Ranger, 2003 CanLII 32900 (ONCA) 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) 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)(*no CanLII links) at pp. 57-58
    see also R v Ellis, 2013 ONCA 9 (CanLII)
  2. ↑ R v Lavoie, 1990 CanLII 4038 (NB CA), (1990), 107 N.B.R. (2d) 181 (N.B.C.A.)
  3. ↑ R v Jones, 2011 ONCA 584 (CanLII) 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 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 thier uties in giving instructions..[8]

  1. ↑ R v Baltovich, 2004 CanLII 45031 (ON CA), (2004) 73 OR (3d) 481 (CA) at para 118
    R v Jeanvenne, 2016 ONCA 101 (CanLII) at para 31
  2. ↑ R v Daley, 2007 SCC 53 (CanLII) 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), at paras 23 to 26 - instructions on murder
    R v Jaw, 2009 SCC 42 (CanLII), [2009] 3 SCR 26, at para 32, per LeBel J. (“[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)
  7. ↑ R v Cooper, 1993 CanLII 147 (SCC), [1993] 1 SCR 146, at p. 163
  8. ↑ R v Melvin, 2016 NSCA 52 (CanLII) 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) at para 70
  2. ↑ R v Waite, 2013 ABCA 257 (CanLII) at para 11
  3. ↑ R v Jacquard (C.O.), 1997 CanLII 374 (SCC), [1997] 1 SCR 314 at para 32
    R v Cooper, 1993 CanLII 147 (SCC), [1993] 1 SCR 146 at pp. 163-164
  4. ↑ R v Howe, 2015 NSCA 84 (CanLII) at para 67
  5. ↑ R v Korski (C.T.), 2009 MBCA 37 (CanLII), 236 Man.R. (2d) 259, at para 102
    Cooper at p. 163
    R v Luciano, 2011 ONCA 89 (CanLII) at para 71
    Vézeau v The Queen, 1976 CanLII 7, [1977] 2 SCR 277 at p. 285
    R v Kociuk (R.J.), 2011 MBCA 85 (CanLII) at paras 69 to 72
    Jacquard, supra
  6. ↑ R v MacKinnon 1999 CanLII 1723 (ON CA), (1999), 132 CCC (3d) 545 (Ont. C.A.), at para 27
  7. ↑ R v Johnson, 2017 NSCA 64 (CanLII) at para 47
  8. ↑ R v Richard, 2013 MBCA 105 (CanLII)
  9. ↑ R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3

See Also

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