General
Questions from the jury are important. They provide a clear indication of the particular problem or problems confronting the jury and on which the jury requires assistance. Questions from the jury must therefore be clearly, correctly and comprehensively answered: R v Poulin, 2017 ONCA 175 at para 74
A trial judge’s incomplete and unhelpful response to a jury’s question can compromise trial fairness and may lead to unsafe verdicts: R v Lapps, 2016 ONCA 142
Sometimes repetition of the original instructions will be sufficient (assuming they are correct); in other situations, it may be necessary to explain things differently. This will depend on the issues in play, the nature of the request for assistance, and whether the jury has been provided with a written version of the trial judge’s instructions. In Spence, for example, the Court of Appeal found that "the trial judge undermined the opportunity to be of assistance to the jury by offering only a simple playback of his original instructions:" R v Spence, 2017 ONCA 619 at paras 60-61
Where the jury’s question signals it requires assistance in dealing with the evidence, the trial judge may instruct the jury in a manner that does not accord with the theory advanced by either Crown or defence counsel at trial, because the jury is not bound by the theories of the Crown or defence when considering the evidence.
However, where the trial judge instructs the jury on a material point in a manner that does not accord with the position advanced by either party, a question may arise whether the instruction affected the fairness of the trial. Trial fairness concerns will be greater when the instruction relates to a theory of liability not previously advanced by the Crown. When that occurs, the issue becomes whether the accused, in the circumstances of the case, was able to present a full and fair defence: R v Grandine, 2017 ONCA 718 at paras 63-64
Request to Rehear Arguments vs. Evidence
There is no legal difference between assisting the jury in recalling evidence and assisting the jury in recalling arguments about the evidence. If the jury requests assistance in recalling evidence or arguments about the evidence, they are entitled to an answer. There is no legal principle that requires that all counsel agree: R v Noureddine, 2015 ONCA 770 at para 106
Question that pertains to some parties but not all
Counsel may be entitled to have input in how to respond to a question that relates to other parties in the proceeding. This will depend on the nature of the question and how it might impact the non-affected party: v Noureddine, 2015 ONCA 770 at para 108