General Principles of Instructions
A review of the basic principles regarding the trial judge’s instructions to the jury and the standard of appellate review: R v. Sinobert, 2015 ONCA 691 at paras 32-34; see especially cited cases in R v Newton, 2017 ONCA 496 at para 10
Ideally, the charge should contain some basic components. In addition to general instructions on the presumption of innocence, the burden of proof, how to assess the credibility and reliability of witnesses’ testimony and the like, the charge on the particular case should contain the following five components:
the legal framework, typically the elements of the offence or offences with which the accused is charged;
the factual issues arising out of the legal framework that the jury must resolve;
the material evidence relevant to these issues;
the position of the Crown and defence on these issues; and
the evidence supporting each of their positions on these issues: R v Newton, 2017 ONCA 496 at para 11
The trial judge must adequately relate the evidence to the issues and should not simply put evidence in bulk to the jury, leaving it to them to determine the relationship between the evidence and the issues that must be decided: R v Duncan, 2015 ONCA 928.
A witness by witness recitation of the evidence is almost always ineffective, for at least two reasons. First the recitation tends to be unnecessarily detailed; the jurors will naturally have difficulty processing what evidence is important and what evidence is not. Second, and most importantly, the summary of the evidence bears no relationship whatsoever to the issues in dispute. The evidence at trial has to be organized for the jury according to its relevance to the issues. Otherwise the jury will not appreciate its significance: Newton at paras 15-16. For additional examples from the case law, see citations in Newton at paras 17-18; see also
There may be a rare case where an appellate court will deem a witness by witness recitation adequate: a simple case, a short trial, only a few witnesses: Newton at para 19.
On appeal, the standard of review is adequacy, not perfection. An appellate court’s approach is “functional”. It assesses the adequacy of the charge in the light of its purpose. Even if a trial judge strays from the ideal, the fundamental question an appellate court must ask is: has the jury been “left with a sufficient understanding of the facts as they relate to the relevant issues”. Or, is the court satisfied “that the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues:" Newton at para 13
Considerable discretion is afforded to a trial judge to choose the method of reviewing the evidence and relating the evidence to the issues: Duncan. A trial judge's decision about how much evidence to review, what structure to use and how to organize the charge falls within that discretion: Newton at para 11
The question on appeal is really a holistic one: is the jury sufficiently informed about the case as put forward by the defence? What matters is that by the end of the instruction, the jury must understand:
1. the factual issues which had to be resolved;
2. the law to be applied to those issues and the evidence;
3. the positions of the parties; and
4. the evidence relevant to the positions taken by the parties on the various issues: R v Speer, 2017 ONCA 333 at paras 16-17
The model instructions (e.g. Watts) are not a “one-size-fits-all product; at best, they “provide the basic building blocks for final and other instructions”: R v McDonald, 2015 ONCA 791
A decision tree is not a jury instruction. It is, rather, a deliberation aid to assist jurors in the deliberation process. It is the jury charge that describes and defines the constituent elements of the offences on which jurors are to deliberate. The absence of definitions or accurate definitions from a decision tree is of no moment, provided the essential elements are explained, in the charge to the jury: R v Dyce, 2016 ONCA 397 at para 4
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
Jury charge must be even-handed
A jury charge that is not even-handed undermines the accused's right to a fair trial: R v Jeanvenne, 2016 ONCA 101 at paras 30-33. Fairness requires, among other things, that the charge explain the theories of each side and review the salient facts in support of those theories
So long as the substance of the defence position was put to the jury, a charge will not be unfair or unbalanced merely because the trial judge did not spend an equal amount of time reviewing the parties’ evidence: R v Jeanvenne, 2016 ONCA 101
Where the Crown’s case relates to a large number of charges alleged to have taken place over a long period of time and the defence is a “blanket denial,” there will be a “superficial imbalance” in time spent on the Crown and defence cases in the jury charge (at para. 25). This type of imbalance is not a reversible error: R v DS, 2017 ONCA 131 at para 25
Also, in some cases, evidence that tends to show an accused committed an offence far exceeds the evidence to the contrary. A balanced charge does not require a trial judge to ignore evidence that implicates an accused. Nor is a trial judge obliged to spin a web of exculpatory inferences, turning each piece of circumstantial evidence every which way to reveal its every possible inference. This proposition is all the more applicable where the defence position appears to be that the cumulative effect of all the evidence falls short of proof beyond a reasonable doubt: R v Speer, 2017 ONCA 333 at para 23 excerpting R. v. Stubbs, 2013 ONCA 514; see also Speer at paras 21-22
An appellate court must consider the charge as a whole and its overall effect in reviewing a trial judge’s instructions.
Failure to Object
The failure of counsel to object to the judge’s charge to the jury is a relevant consideration that may inform a court's conclusion on both the overall accuracy of an instruction and likely impact of the error : R v Jeanvenne, 2016 ONCA 101 at para 43; R v Warren, 2016 ONCA 104 at para 25; R v Laing, 2016 ONCA 184 at para 45
This is especially so when counsel have received a copy of the proposed charge in advance of delivery and make no complaint about the completeness of the instruction: R v Van Every, 2016 ONCA 87 at para 55. Relevant considerations include all of the evidence at trial, the balance of the charge, the positions of counsel, and the period of parole ineligiblity recommended by the jury: Van Every at paras 66-7
However, counsel's failure to object is not determinative because the trial judge is ultimately responsible for the charge to the jury. If the charge contains legal error, counsel's failure to object to the erroneous charge does not change the nature or effect of the legal error: Warren at para 26; R v Iyeke, 2016 ONCA 349 at para 9; R v Poulin, 2017 ONCA 175 at para 50; see R v Newton, 2017 ONCA 496 at para 24; R v Spence, 2017 ONCA 619 at para 63
If a misdirection or non-direction leaves the jury inadequately equipped to properly evaluate important evidence, counsel’s failure to object at trial cannot negate the error: R v Bailey, 2016 ONCA 516 at para 56
When improper comments by Crown counsel are sufficiently prejudicial, a trial judge has a duty to intervene; a failure to do so will constitute an error of law.
Where, for example, the Crown refers in its opening to anticipated evidence that subsequently is not led or is ruled inadmissible, it is the duty of the trial judge to tell the jury explicitly that the statements complained of are not in evidence and they must try to free their minds from them:
Where a trial judge fails to redress properly the harm caused by a clearly unfair or significantly inaccurate jury address, a new trial may result. The question is whether, in the context of the entire trial, the remarks and the trial judge’s response or failure to respond caused a substantial wrong or miscarriage of justice: R v Clause, 2016 ONCA 859 at paras 38-39
Whereas a corrective instruction relates to evidence that is inadmissible, a limiting instruction applies to evidence that is admissible for one purpose, but not for another: R v Calamusa, 2016 ONCA 855 at para 13
To succeed on an appeal based on the absence of an instruction, the appellant must establish that a specific jury instruction should have been given and that its omission amounted to legal error: R v Warren, 2016 ONCA 104 at para 9
Prior Consistent Statements
It is generally appropriate for a TJ to give a limiting instruction on the use of PCS: R v AMV, 2015 ONCA 457 at para 16
However, limiting instructions on the use of prior consistent statements are not always necessary. The isuse must be assessed in the context of the particular case and on a functional basis: R v AMV, 2015 ONCA 457 at para 16
Considering evidence across counts
Absent a similar fact evidence application, a jury must be instructed to consider the evidence concerning each count separately: R v Poulin, 2017 ONCA 175 at paras 39-40
Three related points must be brought home to the jury to counter the prejudice inherent in a multi-count indictment: 1) Only the evidence admissible with respect to the particular count can be considered when determining guilt or innocence on that count (the instruction to keep the evidence relating to each count separate; 2) a finding of guilt on one count is not evidence of guilt on another; and 3) evidence of discreditable conduct or criminal acts cannot be used to reason that the accused is the type of person who would have committed any of the offences (the propensity reasoning instruction).
The second and third instructions are actually examples of the first critical instruction – that the jury must keep the evidence on each count separate. As a result, the failure to give a propensity warning is not always fatal. Rather, the court may tailor the charge in a particular case to suit the circumstances of that case: R v Dawson, 2016 ONCA 880 at paras 24-30
Instructions prohibiting extraneous research by jurors: R v Pannu, 2015 ONCA 677 at paras 109-113
Caution on the Co-Accused's Testimony incriminating the Accused
A co-accused statement is inadmissible against an accused. When the Crown leads evidence of a statement made by one accused, the jury must be told that the statement is admissible only against the maker of the statement and cannot be considered in determining the co-accused’s culpability: R v John, 2016 ONCA 615 at para 35
Further, a vetrovec-type caution may be given in respect of a co-accused's testimony that incriminates an accused.
A trial judge has the discretion to give such a caution where he or she considers the fair trial rights of a co-accused require it. Where a trial judge determines that the fair trial rights of a co-accused require a "caution" with respect to the testimony of the other accused, the trial judge should expressly tell the jury that the caution applies only to the case against the co-accused and has no application when considering the case against the accused who has testified.
Since “the ‘caution’ is justified exclusively as a protection of the co-accused’s fair trial rights, trial judges should canvass with counsel for the co-accused the need for any ‘caution’ before instructing the jury. If counsel take the position that no ‘caution’ is warranted, none should be given: R v Deol, 2017 ONCA 221 at paras 25-27
Exculpatory Statements Made by an Accused
Fabricated versus disbelieved statements
In instructing the jury on the use to be made of an exculpatory statement made by an accused which they may or may not accept, the trier of fact must be cautioned against jumping directly from disbelief of the statement to an inference that the accused fabricated the statement because s/he is guilty. The jury must be instructed along the following lines.
First, the trier of fact must determine whether they believe or have a reasonable doubt about the truthfulness of the alibi.
Next, if the judge concludes that there is sufficient independent evidence of fabrication of an exculpatory out-of-court statement, “the judge should instruct the jurors that it is open to them to find that the accused fabricated the exculpatory version of events because he or she was conscious of having done what is alleged and that they may use that finding, together with other evidence, in deciding whether the Crown has proven the case beyond a reasonable doubt”
If, on the other hand, there is insufficient independent evidence of fabrication, the jury should be instructed to disregard any disbelieved exculpatory statement and decide the case on the balance of the evidence
It is essential for the trial judge to set out clearly the difference between evidence leading only to disbelief and independent evidence of fabrication. Where the fabrication instruction is given, the trial judge must “carefully outline what evidence is capable of constituting independent evidence
The discretion to give a vetrovec instruction: R v Moffit, 2015 ONCA 412 at paras 74-78
No special instruction to the jury is required when the Crown’s case is entirely circumstantial. Instead, the jury must be told that, in order to convict, they must find that the only rational inference to be drawn from the circumstantial evidence is the accused’s guilt: R v Taylor, 2015 ONCA 448 at paras 152-155
An instruction on reasonable doubt should point out that a reasonable doubt is a doubt that is “[l]ogically derived from the evidence or absence of evidence.” The instruction must also make it clear that a reasonable doubt cannot be founded on speculation. The instruction is not a magic incantation that requires verbatim repetition; rather, it is a suggested formula that would not be faulted if used: R v Hassanzada, 2016 ONCA 284 at para 106
An instruction to the jury to the effect that exculpatory evidence can be the source of reasonable doubt even if not affirmatively believed is particularly important because it is arguably not the kind of common sense reasoning that jurors would apply in making credibility assessments in their day-to-day lives: R v Zeisig, 2016 ONCA 845 at para 5
After three days of jury deliberations, the trial judge should caution the jury against engaging in impermissible verdict compromise based on expediency, frustration or a desire to simply resolve the case and complete their deliberations: R v Lapps, 2016 ONCA 142 at para 18
A trial judge has the authority, in some cases the duty, to define the extent to which counsel may discuss a subject in their final addresses and to balance what is said there with an instruction to the jury on the same subject-matter: R v Hassanzada, 2016 ONCA 284 at para 73
A jury should be told that they cannot speculate about the evidence they have not heard: R v Bailey, 2016 ONCA 516 at para 67
A jury instruction does not have to meet the standard of perfection: R v McCracken, 2016 ONCA 228 at para 78
The principles of appellate review of the adequacy of a jury charge: R v McDonald, 2015 ONCA 791 at para 17; R v Duncan, 2015 ONCA 928 at paras 27-31; R v Sinobert, 2015 ONCA 691 at para 84; R v Hassanzada, 2016 ONCA 284 at paras 104-105
The adequacy of jury instructions is not measured against their conformity to the content of a model instruction. What is critical is that the instruction be tailor made for the case being tried pointing out the specific concerns that emerge from the evidence at trial: R v Bailey, 2016 ONCA 516 at para 42, 43
When a complaint about a jury charge arises as a result of an appellate judicial decision rendered after the charge has been given, the essential issue is whether the charge substantially complies with the principles later expressed. The appellate court must assess whether the deficiencies in the charge delivered, compared to the standard later pronounced, give rise to a reasonable likelihood that the jury misapprehended the correct legal standard: R v Ansari, 2015 ONCA 575 at paras 182-184
It is an error for the trial judge to instruct the jury that corroboration of a witness’ evidence is required: R v HAK, 2015 ONCA 905