Established Areas of Jury Instruction

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General Principles

See also: Jury Instructions

Standards of Proof

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".[1]

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".[2]

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.[3]

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".[4]

  1. ↑ R v Layton, 2008 MBCA 118 (CanLII), per Hamilton JA
  2. ↑ R v Brydon, 1995 CanLII 48 (SCC), [1995] 4 SCR 253, per Lamer CJ, at paras 21 and 25
    R v Gallie, 2015 NSCA 50 (CanLII), per Fichaud JA, at para 55
  3. ↑ R v Archer, 2005 CanLII 36444 (ONCA), 202 CCC (3d) 60, per Doherty JA, at paras 36 to 38
  4. ↑ R v Gordon, 2016 SKCA 58 (CanLII), per Caldwell JA, at para 5
    R v Burke, 1996 CanLII 229 (SCC), per Sopinka J
    R v Quercia, 1990 CanLII 2595 (ONCA), per Doherty JA (2:1)

Credibility

The judge does not need to give a WD instruction or its functional equivalent in relation to every piece of evidence relied upon by the accused.[1]

the WD instructions do not need to be recited to the jury as if it was a "magic incantation".[2]

  1. ↑ R v Simon, 2010 ONCA 754 (CanLII), per Watt JA, at paras 82 to 84, 89 to 90
    R v BD, 2011 ONCA 51 (CanLII), per Blair JA, at para 114
    R v MR, 2005 CanLII 5845 (ONCA), 195 CCC (3d) 26, per Cronk JA, at para 46
    R v Chenier, 2006 CanLII 3560 (ONCA), 205 CCC (3d) 333, per Blair JA, at paras 374 to 375
  2. ↑ R v JHS, 2008 SCC 30 (CanLII), per Binnnie J, at para 13
    R v WDS, 1994 CanLII 76 (SCC), per Cory J, at p. 533 (SCR)

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". [1]There is no need to "catalogue all available inferences" from each piece of evidence.[2] 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.[3]

  1. ↑ R v Bradley, 2015 ONCA 738 (CanLII), per Watt JA, at para 185
  2. ↑ Bradley, ibid., at para 185
  3. ↑ R v Guiboche, 2004 MBCA 16 (CanLII), per Freedman JA, 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.")
    R v Fleet, 1997 CanLII 867 (ONCA), 120 CCC (3d) 457, per curiam, at para 20

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.[1]

  1. ↑ R v Illes, 2008 SCC 57 (CanLII), per LeBel and Fish JJ

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.[1]

  1. ↑ R v DLW, 2013 BCSC 1016 (CanLII), per Romilly J, at paras 10 to 11
    R v BM, 1998 CanLII 13326 (ONCA), OR (3d) 1, per Rosenberg JA at 14 (CA)
    R v Rarru, 1996 CanLII 195 (SCC), per Sopinka J, at pp. 165-66
    R v LKW, 1999 CanLII 3791 (ONCA), per Moldaver JA, at para 93

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. [1] 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".[2]

Substantial Review and Relating it to Issues

There is no obligation to review all of the evidence at trial, it need not be exhaustive.[3] 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.[4] The extent of the review will vary from case-to-case.[5]

There is "considerable latitude" in reviewing the evidence and relating it to the issues for the jury.[6]

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".[7]

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.[8] 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".[9]

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. [10] A judge will often indicate which parts of the evidence supports each parties position on particular issues.[11]

A jury charge should not be reviewed in isolation, but rather in light of the evidence and closing arguments of counsel.[12]

Suggested Formula

It has been suggested that a acceptable review of the evidence related to the issues was organized for each issue as:[13]

  1. identified the issue;
  2. explained the legal requirements of proof;
  3. summarized the essential features of the evidence that were relevant for the jury to consider in deciding the issue;
  4. reiterated the Crown’s burden of proof on the issue; and
  5. described the consequences of the available findings on the issue for further deliberations and for the verdict.
Strong Crown Cases

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.[14] This is particularly applicable where the defence argument is simply that the evidence does not meet the standard of proof.[15]

The constitution requires that even when the evidence is "overwhelming" the judge cannot direct the jury to convict.[16]

  1. ↑ Azoulay v The Queen, 1952 CanLII 4 (SCC), [1952] 2 SCR 495, per Taschereau J, at pp. 497-98
    see also R v Daley, 2007 SCC 53 (CanLII), per Bastarache J, at para 54
  2. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA, at para 146
    R v Cooper, 1993 CanLII 147 (SCC), per Cory J, at p. 163
    R v Jacquard, 1997 CanLII 374 (SCC), per Lamer CJ, at para 14
  3. ↑ R v MacKinnon, 1999 CanLII 1723 (ONCA), OR (3d) 378 (CA), per Doherty JA, at paras 29 to 30
    Daley, supra, at paras 55 to 56
    R v PJB, 2012 ONCA 730 (CanLII), 97 CR (6th) 195, per Watt JA, at para 45
  4. ↑ R v Demeter, 1975 CanLII 685 (ONCA), 25 CCC (2d) 417, per curiam, at p. 436 cited in PJB, ibid., at para 46
    B(PJ), supra, at para 46
  5. ↑ Daley, supra, at para 57
  6. ↑ Daley, supra, at para 57
    R v Royz, 2009 SCC 13 (CanLII), per Binnie J, at para 3
    B(PJ), supra, at para 46
  7. ↑ Tomlinson, supra, at para 149
  8. ↑ Azoulay, supra, at pp. 497-498 (SCR)
    Daley, supra, at para 54
  9. ↑ Tomlinson, supra, at para 147
    R v S(J), 2012 ONCA 684 (CanLII), 292 CCC (3d) 202, per Watt JA, at para 38
    MacKinnon, supra, at paras 29-30{{{3}}}
  10. ↑ B(PJ), supra, at para 44
  11. ↑ B(PJ), supra, at para 44
  12. ↑ R v Stubbs, 2013 ONCA 514 (CanLII), per Watt JA, at para 137
  13. ↑ Tomlinson, supra, at para 172
  14. ↑ Stubbs, supra, at para 139
  15. ↑ Stubbs, supra, at para 139
  16. ↑ R v Krieger, 2006 SCC 47 (CanLII), per Fish J, at para 24
    This affirmed the right to "jury nullification"

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.[1] 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”[2]


  1. ↑ R v Sutherland, 2011 ABCA 319 (CanLII), per curiam, at para 7
  2. ↑ see e.g. R v White, 2011 SCC 13 (CanLII), [2011] 1 SCR 433, 267 CCC (3d) 453, per Rothstein J, at paras 55 to 60 and 87{{{3}}}, see also, per Charron J, at paras 105 to 107 and 130 as well as, per Binnie J185

Limited Purpose Evidence

Generally, evidence of limited admissibility must be accompanied by specific jury instructions that satisfy the following:[1]

  • 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 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. [2]

Failure to give the instructions is an error of law.[3] 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".[4]

  1. ↑ R v Largie, 2010 ONCA 548 (CanLII), 101 OR (3d) 561, per Watt JA, at para 107
  2. ↑ R v Bevan, 1993 CanLII 101 (SCC), per Major J, at p. 619
    See also R v Kokotailo, 2008 BCCA 168 (CanLII), 254 BCAC 262, per Smith J, at para 44
    R v Moir, 2013 BCCA 36 (CanLII), per Bennett JA
  3. ↑ R v MT, 2012 ONCA 511 (CanLII), per Watt JA, at para 84
  4. ↑ R v Van, 2009 SCC 22 (CanLII), per LeBel J, at para 34
    MT, supra, at para 85

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.[1]

Due to the dangers of bolstering a witnesses credibility through prior consistent statements, "a limiting instruction will almost always be required where such statements are admitted."[2] The instruction should delineate that "consistency is not the same as accuracy" and should not be used to assess general reliability.[3]

Submissions and instructions suggesting that a hearsay statement should be relied upon for a verdict can warrant a new trial.[4]

  1. ↑ R v Francis, 2002 CanLII 41495 (ONCA), per curiam
  2. ↑ R v Ellard, 2009 SCC 27 (CanLII), [2009] 2 SCR 19, at para 42, per Abella J
  3. ↑ Ellard, ibid., at para 42
  4. ↑ R v Iyeke, 2016 ONCA 349 (CanLII), per curiam

Defences

The trial judge must leave every defence to the jury that is available on the facts of the case, regardless of whether the accused raises it.[1]

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."[2]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".[3]

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.”[4]

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.[5]

A charge wil not be "unfair or unbalance" only because the "trial judge did not spend an equal time reviewing the parties' evidence.[6]

  1. ↑ R v Esau, 1997 CanLII 312 (SCC), [1997] 2 SCR 777, per Major J, at para 13 ("it has long been established that a trial judge must charge the jury on every defence which has an “air of reality”, whether or not that defence is raised by the accused.") and, at para 26
  2. ↑ R v Fontaine, 2004 SCC 27 (CanLII), per Fish J, at para 56
  3. ↑ Fontaine, ibid.
  4. ↑ Lee Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law Inc, 2011), at p. 546
  5. ↑ R v Brar, 2009 BCCA 585 (CanLII), per Bennett JA
  6. ↑ R v Nelson, 2013 ONCA 853 (*no CanLII links) , at para 47

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.[1]

  1. ↑ R v Stevenson, 1990 CanLII 2594 (ONCA), [1990] OJ No 1657, per Morden JA
    R v Cracknell, 1931 CanLII 168 (ONCA), 56 CCC 190 at 192, per Murlock JA
    R v McLean, 1933 CanLII 38 (SCC), 61 CCC 9, [1933] SCR 688, at pp. 13-14 (CCC), per curiam
    R v Cathro v The Queen, 1955 CanLII 46 (SCC), 113 CCC 225, [1956] SCR 101, per Estey J, at p. 241 (SCC)
    Thorne v R, 2004 NBCA 102 (CanLII), per Deschênes JA, at para 10 - an exception exists for evidence regarding the use of proclamation under s. 67

Expert Opinion Evidence

The jury instruction on experts should include:[1]

  • 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.

They should also be informed that expert witnesses should be evaluated in the same manner as any other witness and they are entitled to rely and believe as much or as little of the evidence as they see fit.[2]

Where the expert testifies to inadmissible evidence, the jury must be instructed not to consider the evidence.[3]

  1. ↑ R v Burnett, 2018 ONCA 790 (CanLII), per Watt JA, at para 67
  2. ↑ Burnett, ibid., at para 67
  3. ↑ Burnett, ibid., at para 68

See Also

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