Example Final Jury Instructions

Duties of Jurors

8.1 Introduction

(Last revised June 2012)

[1] You will soon leave this courtroom and start discussing this case in the jury room. It is time for me to tell you about the law you must follow in making your decision.

[2] When we started this case, and at different times during the trial, I told you about several rules of law that apply in general, or to some of the evidence as it was received. Those instructions still apply.

[3] Now I am going to give you further instructions. These instructions will cover a number of topics. Consider them as a whole. Do not single out some as more important and pay less or no attention to others. I am giving them to help you make a decision, not to tell you what decision to make.

[4] [1] First, I will explain your duties as jurors, and tell you about the general rules of law that apply to all jury cases.

[5] Second, I will advise you of the specific rules of law that govern this case. I will explain how those rules apply to the evidence. Even if I do not refer to all the evidence governed by a specific rule, you must apply each rule to all the evidence to which it relates.

[6] Next, I will explain to you what the Crown must prove beyond a reasonable doubt in order to establish the guilt of the person charged (or (NOA)), and tell you about the defences and other issues that arise from the evidence.

[7] Then I will discuss with you the issues that you need to decide and will review for you the evidence that relates to those issues.

[8] After that, I will summarize the positions that counsel (or specify names) have put forward in their closing addresses.

[9] The last thing I will explain for you is what verdicts you may return and how you should approach your discussion of the case in the jury room.

[1] The order of paragraphs [4] - [9] is flexible. It should, however, follow the order in which the Final Instructions are given.

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8.2 Respective Duties of Judge and Jury

(Last revised June 2012)

[1] In this trial, I am the judge of the law. You are the judges of the facts.

[2] As judge of the law, it is my duty to preside over the trial. I am the sole judge of the law, and it is your duty to accept the law as I explain it to you. If I am wrong about the law, my error can be corrected by the court of appeal, because my instructions are recorded and will be available if there is an appeal. However, your deliberations are secret. If you wrongly apply the law there will be no record of your discussions for the court of appeal to review. Therefore, it is important that you accept the law from me without question; you must not use your own ideas about what the law is or should be.

[3] It is your duty to decide whether the Crown has proved (NOA)’s guilt beyond a reasonable doubt. It is not my role to express any view on the guilt or innocence of (NOA). If I do so inadvertently, you must ignore it.

[4] You have now heard all the evidence that will be called in this case. There will be no more evidence. You must make your decision based on all the evidence presented to you in the courtroom and only on that evidence. I might comment on or express an opinion about the evidence. If I do that, you do not have to agree with me.

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8.3 Prejudice and Sympathy

Note[1]

(Last revised January 2018)

[1] You must consider the evidence and make your decision on a rational and fair consideration of all the evidence, and not on passion, or sympathy, or prejudice against the accused, the Crown, or anyone else connected with the case. In addition, you must not be influenced by public opinion. Your duty as jurors is to assess the evidence impartially.

[1] This instruction may not be adequate in some circumstances where, for example, issues of gender, race, culture, religion, or class may arise. See, for example, R. v. Barton, 2017 ABCA 216 at paras 127-130, 162. In these situations, it is advisable to consult with counsel in preparing your instructions.

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8.4 Outside Information

(Last revised June 2012)

[1] The only information that you may consider is the evidence that has been put before you in the courtroom. You must disregard completely any information from radio, television, or newspaper accounts, Internet sources, Twitter, Facebook, or any other social media, that you have heard, seen or read about in respect of this case, or about any of the persons or places involved or mentioned in it. Any other information about the case from outside the courtroom, is not evidence.[1]

[1] As a precaution, most judges ensure that jurors do not take cellphones or other electronic devices into the jury room.

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8.5 Sentence

Note[1]

(Last revised June 2012)

[1] Possible penalties for the offence[s] charged have no place in your discussions or in your decision.

[1] This is an optional instruction to be given if the possible penalties have been referred to during the trial.

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8.6 Juror's Approach to Task

(Last revised June 2012)

[1] It is your duty to consult with one another and to try to reach a just verdict according to the law. Your foreperson will preside and assist you in the orderly discussion of the issues. You should each have the opportunity to express your own points of view without being unnecessarily repetitive. When you are discussing the issues, you should listen attentively to what your fellow jurors have to say. Approach your duties in a rational way and put your own points of view forward in a calm and reasonable manner. Avoid taking firm positions too early in your deliberations. Consider the views of your fellow jurors with an open mind before reaching your own decision.

[2] Any verdict you reach must be unanimous [on a count or counts]. Unless you are unanimous in finding (NOA) not guilty, you cannot acquit him/her. Nor can you return a verdict of guilty unless you agree unanimously that s/he is guilty.

[3] Each of you must make your own decision whether (NOA) is guilty or not guilty. You should reach your decision only after consideration of the evidence with your fellow jurors. Your duty is to try to reach a unanimous verdict. However, you are entitled to disagree if you cannot reach a unanimous verdict after a sincere consideration of the facts and the law and an honest discussion with your fellow jurors.

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8.7 Judge's Review of Evidence

(Last revised June 2012)

[1] I will review some parts of the evidence and relate it to the issues you must decide. I might mention evidence you think is insignificant or not mention evidence you think is important. Counsel have also referred to the evidence in closing submissions. I remind you that you must consider all of the evidence, not just the parts that have been mentioned. If your recollection of the evidence differs from what counsel or I have said, it is your memory and understanding of the evidence that counts in this case - not mine or that of counsel.

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General Principles

9.2 Presumption of Innocence, Burden of Proof and Reasonable Doubt

(Last revised June 2012)

[1] The first and most important principle of law applicable to every criminal case is the presumption of innocence. (NOA) enters the proceedings presumed to be innocent, and the presumption of innocence remains throughout the case unless the Crown, on the evidence put before you, satisfies you beyond a reasonable doubt that s/he is guilty.

[2] Two rules flow from the presumption of innocence. One is that the Crown bears the burden of proving guilt. The other is that guilt must be proved beyond a reasonable doubt. These rules are linked with the presumption of innocence to ensure that no innocent person is convicted.

[3] The burden of proof rests with the Crown and never shifts. There is no burden on (NOA) to prove that s/he is innocent. S/he does not have to prove anything.[1]

[4] Now what does the expression “beyond a reasonable doubt” mean? A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.

[5] It is virtually impossible to prove anything to an absolute certainty, and the Crown is not required to do so. Such a standard would be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. You must not find (NOA) guilty unless you are sure s/he is guilty. Even if you believe that (NOA) is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to (NOA) and find him/her not guilty because the Crown has failed to satisfy you of his/her guilt beyond a reasonable doubt.

[6] In a few moments I will explain the essential elements that the Crown must prove beyond a reasonable doubt to establish (NOA)’s guilt. For the moment, the important point for you to understand is that the requirement of proof beyond a reasonable doubt applies to each of those essential elements. It does not apply to individual items of evidence. You must decide, looking at the evidence as a whole, whether the Crown has proved (NOA)’s guilt beyond a reasonable doubt.

[7] If you have a reasonable doubt about (NOA)’s guilt arising from the evidence, the absence of evidence, or the credibility or the reliability of one or more of the witnesses, then you must find him/her not guilty.

[8] In short:
1. The presumption of innocence applies at the beginning and continues throughout the trial, unless you are satisfied, after considering the whole of the evidence, that the Crown has displaced the presumption of innocence by proof of guilt beyond a reasonable doubt.

2. If, based upon the evidence, you are sure that (NOA) is guilty of the offence(s) with which s/he is charged, that demonstrates that you are satisfied of his/her guilt beyond reasonable doubt, and you must find him/her guilty of that offence.

3. If you have a reasonable doubt whether (NOA) is guilty of the offence(s) with which s/he is charged, you must give him/her the benefit of that doubt and find him/her not guilty.

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9.4 Assessment of Evidence

(Last revised June 2018)

[1] To make your decision, you should consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to you to decide how much or little of the testimony of any witness you will believe or rely on. You may believe some, none or all of the evidence given by a witness.

[2] When you go to the jury room to consider the case, use your collective common sense to decide whether the witnesses know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’s testimony or how much to rely on it in deciding this case. But here are a few questions you might keep in mind during your discussions.

[3] Did the witness seem honest? Is there any reason why the witness would not be telling the truth?

[4] Does the witness have any reason to give evidence that is more favourable to one side than to the other?[1]

[5] Was the witness in a position to make accurate and complete observations about the event? Did s/he have a good opportunity to do so? What were the circumstances in which the observation was made? What was the condition of the witness? Was the event itself unusual or routine?

[6] Did the witness seem to have a good memory? Does the witness have any reason to remember the things about which s/he testified? Did any inability or difficulty that the witness had in remembering events seem genuine, or did it seem made up as an excuse to avoid answering questions?

[7] Did the witness seem to be reporting to you what he or she saw or heard, or simply putting together an account based on information obtained from other sources, rather than personal observation?[2]

[8] Did the witness’s testimony seem reasonable and consistent? Is it similar to or different from what other witnesses said about the same events? Did the witness say or do something different on an earlier occasion?

[9] Do any inconsistencies in the witness’s evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different, or because s/he failed to mention something? Is there any explanation for it? Does the explanation make sense?

[10] What was the witness’s manner when he or she testified? Do not jump to conclusions, however, based entirely on how a witness has testified. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different abilities, values and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or most important factor in your decision.[3]

[11] These are only some of the factors that you might keep in mind when you go to your jury room to make your decision. These factors might help you decide how much or little of a witness’s evidence you will believe or rely on. You may consider other factors as well.

[12] In making your decision, do not consider only the testimony of the witnesses. Take into account, as well, any exhibits that have been filed and decide how much or little you will rely on them to help you decide this case. I will be telling (or, have already told) you about how you use admissions in making your decision.

[1] It must not be suggested to the jury that they can assume that the accused, by virtue of his or her status as the accused, would lie to escape conviction, as this undermines the presumption of innocence: R. v. Laboucan, [2010] 1 S.C.R. 397, at paras 14-18.

[2] Paragraph [7] is directed at witnesses who may have put their testimony together, or embellished their account from outside sources, such as media accounts or other sources. It may require modification where the source is records whose accuracy, and the propriety of consulting them, is not in issue.

[3] Where a witness is testifying through an interpreter, this instruction may be expanded to point out the particular difficulties in assessing such a witness’s testimony.

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9.5 Reasonable Doubt and Credibility

(Last revised June 2012)

[1] I am going to speak to you for just a moment about reasonable doubt and credibility. Reasonable doubt applies to the issue of credibility. On any given point, you may believe a witness, disbelieve a witness, or not be able to decide. You need not fully believe or disbelieve one witness or a group of witnesses. If you have a reasonable doubt about (NOA)’s guilt arising from the credibility of the witnesses, then you must find him/her not guilty.

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9.6 Testimony of Person Charged (The W. (D.) Instruction)

Note[1]

(Last revised June 2012)

[1] You have heard (NOA) testify. When a person charged with an offence testifies, you must assess that evidence as you would assess the testimony of any other witness, keeping in mind my instructions to you earlier about the credibility of witnesses. You may accept all, part, or none of (NOA)’s evidence.[2]

[2] Of course, if you believe the testimony of (NOA) that s/he did not commit the offence charged, you must find him/her not guilty.

[3] However, even if you do not believe the testimony of (NOA), if it leaves you with a reasonable doubt about his/her guilt (or, about an essential element of the offence charged (or, an offence)), you must find him/her not guilty (of that offence).

In “he said/she said” cases it has been suggested in R. v. C.W.H. (1991), 68 C.C.C. (3d) 146 (B.C.C.A.) that the following instruction be added:
If you don't know whom to believe, it means you have a reasonable doubt and you must find (NOA) not guilty.
[4] Even if the testimony of (NOA) does not raise a reasonable doubt about his/her guilt, (or, about an essential element of the offence charged (or, an offence)), if after considering all the evidence you are not satisfied beyond a reasonable doubt of his /her guilt, you must acquit.
[1] R. v. W. (D.), [1991] 1 S.C.R. 742. This instruction is appropriate where the evidence of the accused constitutes a complete defence to the offence charged. Where the testimony of the accused would only lead to a guilty verdict on an included offence based on, for example, intoxication or provocation, this instruction will need to be modified.
[2] It must not be suggested to the jury that they can assume that the accused, by virtue of his/her sta

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9.7 Co-Accused's Comment on the Failure of Person Charged to Testify (The R. v. Prokofiew Instruction)

Note[1]

(November 2012)

[1] In his closing address (NOA2)’s counsel invited you to infer (NOA1)’s guilt from his/her failure to testify. This submission is wrong in law and you must ignore it. You cannot use (NOA1)’s silence at trial as evidence of his/her guilt.[2]

[2] Every accused person has the right to remain silent at trial. A person charged with an offence does not have to testify and has no obligation to prove anything. The burden of proof rests on the Crown from beginning to end.

[3] You cannot find (NOA1) guilty of an offence unless you are satisfied on the basis of all the evidence that his/her guilt has been proven beyond a reasonable doubt. In reaching your verdict, you must not use (NOA1)’s silent at trial as evidence of his/her guilt.

[1] This is a remedial instruction, based on R. v. Prokofiew, 2012 SCC 49, that should be used only where there are multiple accused and counsel for one of the accused has improperly invited the jury to infer the guilt of another accused from his or her failure to testify.

[2] The instruction above corrects an improper comment that has been made before the jury. Even if there has been no improper comment on a co-accused's failure to testify, the judge has a discretion to give a limiting instruction where there is a realistic concern that the jury may place evidential value on an accused's decision not to testify (see: Prokofiew, at paras. 3-11). In crafting the instruction, care must be taken not to undermine the defence of the testifying accused. A possible instruction would use paragraphs [2]-[3] above, but substitute the following for paragraph [1], although this may need to be modified in light of the particular circumstances of the case:

In closing submissions you have heard mention of the fact that one of the accused did not testify. Bear in mind, however, that (NOA1)'s silence at trial is not evidence of his/her guilt.

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Evidence

Example Final Jury Instructions (Evidence)

Deliberations

Example Final Jury Instructions (Deliberation)