Criminal Law Notebook

Jury Instructions

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

General Principles

The trial judge is afforded deference to their chosen approach to properly instruct a jury.[1] Review must be "functional" and "contextual."[2]

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

The trial judge will typically instruct the jury on these topics:[4]

  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."[5]

An instructing judge "must set out in plan and understandable terms the law that the jury must apply when assessing the facts."[6]

It is through the "instructions that the jury must appreciate the value and effect of the evidence in the context of the legal issues."[7]

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."[8]

The instructing judge is responsible for "review of the evidence and ... to relate the evidence to the position of the defence"[9]

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."[10]

Fair and Neutral Instructions

An accused person is "entitled to a properly, not perfectly, instructed jury."[11]

A jury charge must be "even-handed" and the instructions "fair and balanced." At no time should sides be taken or editorial comments made.[12]

The charge should not be a "partisan broadcast."[13]

Presumed Ability and Sophistication of Jury

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

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"[16]

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

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."[18]

Inappropriate Direction to Jury

The trial judge should not share his evidence notes to the jury even if both counsel find it acceptable.[19]

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).[20]

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.[21]

The use of annotations on the decision tree to indicate the burden and standard of proof has been suggested as being "helpful."[22]

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.[23]

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]."[24]

Evidence misleading the jury can come for sources including the matters bought up in post-charge instructions and questions from the jury.[25]

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.[26]

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.[27]

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.[28] 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."[29]

  1. ↑ R v Whynder, 2020 NSCA 77 (CanLII), per Beveridge JA, at para 39
  2. ↑ Whynder, ibid., at para 39
  3. ↑ R v Elder, 2015 ABCA 126 (CanLII), 599 AR 385, per curiam (3:0), at para 13
    R v Araya, 2015 SCC 11 (CanLII), [2015] 1 SCR 581, 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 Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523, per Bastarache J (5:4), at para 29
  5. ↑ R v Bradley, 2015 ONCA 738 (CanLII), per Watt JA, at para 184
  6. ↑ R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523, per Bastarache J (5:4), at para 32
  7. ↑ R v Karaibrahimovic, 2002 ABCA 102 (CanLII), 164 CCC (3d) 431, per Fraser CJ, at para 33
  8. ↑ R v PJB, 2012 ONCA 730 (CanLII), 97 CR (6th) 195, per Watt JA (3:0), at para 42
    R v Melvin, 2016 NSCA 52 (CanLII), NSJ No 239, per Farrar JA (3:0), at para 31
  9. ↑ Melvin, supra, at para 31
    PJB, supra, at para 43
  10. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA (3:0), at para 150
    R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314, per Lamer CJ (4:3), at paras 32 and 41
    MacKinnon, supra, at para 27
  11. ↑ PJB, supra, at para 41
    Jacquard, supra, at paras 1 to 2, 62
  12. ↑ R v Largie, 2010 ONCA 548 (CanLII), [2010] OJ No 3384 (ONCA), per Watt JA (3:0)
  13. ↑ Bradley, supra, at para 184
  14. ↑ R v White, 2011 SCC 13 (CanLII), [2011] 1 SCR 433, per Rothstein J, at para 56 ("Our jury system is predicated on the conviction that jurors are intelligent and reasonable fact-finders. It is contrary to this fundamental premise to assume that properly instructed jurors will weigh the evidence unreasonably or draw irrational and speculative conclusions from relevant evidence.")
    R v Corbett, 1988 CanLII 80 (SCC), [1988] 1 SCR 670, per Dickson CJ, at p. 692 (SCR) ("it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense")
    R v Farouk, 2019 ONCA 662 (CanLII), per , at para 50 ("I would note in this regard that our jury system is predicated on the proposition that jurors follow a trial judge’s limiting instructions")
  15. ↑ R v Lane and Ross, 1969 CanLII 545 (ONSC), [1970] 1 CCC 196, per Addy J
  16. ↑ Melvin, ibid., at para 31 PJB, supra, at para 44
  17. ↑ Eg see Melvin, supra, at paras 39 to 40
  18. ↑ R v Joles, 2022 ONCA 681 (CanLII), per curiam, at para 7
    R v Chamot, 2012 ONCA 903 (CanLII), per Doherty JA
  19. ↑ R v Bouchard, 2013 ONCA 791 (CanLII), 305 CCC (3d) 240, per Doherty JA (2:1)
  20. ↑ R v Tehrankari, 2012 ONCA 718 (CanLII), 298 OAC 252, per Weiler JA (3:0)
  21. ↑ Bradley, supra, at para 142
  22. ↑ R v Spaniver, 2006 SKCA 139 (CanLII), 215 CCC (3d) 555, per Richards JA (3:0), at para 41
  23. ↑ R v Gallie, 2015 NSCA 50 (CanLII), 324 CCC (3d) 333, per Fichaud JA, at para 38
    R v Corbett, 1988 CanLII 80 (SCC), [1988] 1 SCR 670, per Dickson CJ, at paras 41 to 48
    R v Elkins, 1995 CanLII 3510 (ON CA), [1995] OJ No 3228 (CA), per Doherty JA (3:0), at para 27
    R v Suzack, 2000 CanLII 5630 (ON CA), [2000] OJ No 100 (CA), per Doherty JA, at para 128
    R v Carrière, 2001 CanLII 8609 (ON CA), [2001] OJ No 4157 (CA), per Doherty JA (3:0), at para 42
    R v Ward, 2011 NSCA 78 (CanLII), 975 APR 216, per Saunders JA, at paras 37 to 39, leave denied
    R v Greenwood, 2014 NSCA 80 (CanLII), per Fichaud JA, at para 143
  24. ↑ R v Brydon, 1995 CanLII 48 (SCC), 101 CCC (3d) 481, per Lamer CJ, at paras 21 and 25 - in context of the legal standard of proof beyond a reasonable doubt.
  25. ↑ Gallie, supra, at para 60
  26. ↑ R v Leroux, 2008 ABCA 9 (CanLII), 422 AR 383, per curiam (3:0), at para 27 citing R v Heil, 2005 ABCA 397 (CanLII), 202 CCC (3d) 515, per Russell JA (3:0)
  27. ↑ e.g. R v McNeil, 2006 CanLII 33663 (ON CA), 84 OR (3d) 125, per Doherty JA (3:0), at para 21
    R v Rowe, 2011 ONCA 753 (CanLII), 281 CCC (3d) 42, per Doherty JA (3:0), at para 62
  28. ↑ Bradley, supra, at para 186
    R v Huard, 2013 ONCA 650 (CanLII), 302 CCC (3d) 469, per Watt JA (3:0), at para 74
    Jacquard, supra, at paras 35 to 37
  29. ↑ 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), 349 CCC (3d) 508, 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), 97 CR (6th) 195, per Watt JA (3:0), at para 42 citing R v MacKinnon, 1999 CanLII 1723 (ON CA), 132 CCC (3d) 545, per Doherty JA (3:0), at para 27
    R v Nadarajah, 2009 ONCA 118 (CanLII), 242 CCC (3d) 215, per Goudge JA (3:0), at para 37
    R v Knox, 2017 SKCA 8 (CanLII), 36 CR (7th) 89, per Ottenbreit JA (3:0), at para 16
    R v Huard, 2013 ONCA 650 (CanLII), 302 CCC (3d) 469, per Watt JA (3:0), at para 50
    R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523, 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 (CanLII), (DOJ)

Note up: 650.1

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), 174 AR 36
  2. ↑ R v Simon, 2010 ONCA 754 (CanLII), 263 CCC (3d) 59, per Watt JA (3:0)
  3. ↑ R v Bouchard, 2013 ONCA 791 (CanLII), 305 CCC (3d) 240, per Doherty JA (2:1)
  4. ↑ R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314, per Lamer CJ (4:3)
    R v Karaibrahimovic, 2002 ABCA 102 (CanLII), 164 CCC (3d) 431, 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), 73 OR (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.")

Questions and Instructions During Deliberations

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]

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[10]

Any defence theory "realistically available on the totality of evidence" should be left with the jury.[11]

  1. ↑ R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523, per Bastarache J (5:4), at para 31
    R v Jeanvenne, 2016 ONCA 101 (CanLII), per Weiler JA, at para 33
  2. ↑ R v Rodgerson, 2014 ONCA 366 (CanLII), 309 CCC (3d) 535, 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), 281 BCAC 14, 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), NSJ No 239, per Farrar JA, at paras 72 to 73 R v PJB, 2012 ONCA 730 (CanLII), 97 CR (6th) 195, per Watt JA (3:0), at para 47
  7. ↑ R v Baltovich, 2004 CanLII 45031 (ON CA), , (2004) 73 OR (3d) 481, per curiam, at para 118
    Jeanvenne, supra, at para 31
  8. ↑ Daley, supra, 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
  10. ↑ R v Huard, 2013 ONCA 650 (CanLII), 302 CCC (3d) 469, per Watt JA, at para 60
  11. ↑ R v Ali, 2021 ONCA 362 (CanLII), 156 OR (3d) 81, at para 74
    R v Grewal, 2019 ONCA 630 (CanLII)}, 379 CCC (3d) 201, per van Rensburg JA, at paras 36to 37
    R v Ronald, 2019 ONCA 971 (CanLII), per Doherty JA, at paras 43 to 48

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] 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.."[10]

  1. ↑ R v Luciano, 2011 ONCA 89 (CanLII), 267 CCC (3d) 16, per Watt JA, at para 70
  2. ↑ R v Waite, 2013 ABCA 257 (CanLII), 309 CCC (3d) 255, 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), 267 CCC (3d) 16, 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), 278 CCC (3d) 1, per Chartier JA (2:1), at paras 69 to 72
    Jacquard, supra
  6. ↑ R v MacKinnon, 1999 CanLII 1723 (ON CA), 132 CCC (3d) 545, per Doherty JA (3:0), at para 27
  7. ↑ R v Johnson, 2017 NSCA 64 (CanLII), 360 CCC (3d) 246, per Beveridge JA (3:0), at para 47
  8. ↑ R v Richard, 2013 MBCA 105 (CanLII), 299 Man R (2d) 1, per Cameron JA (3:0)
  9. ↑ R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3, per McLachlin CJ and Bastarache J
  10. ↑ R v Gauthier, 2013 SCC 32 (CanLII), [2013] 2 SCR 403, per Wagner J

See Also

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