A Judge’s Final Instructions to the Jury

In a criminal jury trial, the jury determines the guilt or innocence of the accused.  Questions of fact are solely within the jury’s competence.  The jury draws the final conclusion on the basis of the facts it considers established by the evidence.  The trial judge is required to determine and to state the law, and to regulate and order the proceedings in accordance with the law. 

It is essential that the direction of the trial judge to the jury sets out the position of the Crown and defence, the legal issues involved and the evidence that may be applied in resolving the legal issues and ultimately in determining the guilt or innocence of the accused.

R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652

Or put another way, every jury must understand

i.     the factual issues to be determined;

ii.     the legal principles applicable to the issues and the evidence adduced at trial;

iii.   the positions of the parties; and

iv.    the substantial parts of the evidence relevant to the positions of the parties on the issues to be decided.

R. v. J.S., 2012 ONCA 684 (CanLII), at para 36.

The adequacy of jury instructions are tested against their ability to fulfill the purpose for which instructions are provided, not the extent that they adhere to or depart from some particular approach or specific formula.

Jacquard, at para. 62; MacKinnon, at p. 386; R. v. J.S., at para 36.

It is the substance, not the form of final instructions that determines whether those instructions have satisfied or fallen short of what we require of them. Yet a sound, organized approach to those instructions is more likely to produce a satisfactory and legally sustainable result:

MacKinnon, at p. 386. R. v. J.S., at para 37.

What understanding did the words, in all probability, convey?

The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge.  The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case.

R. v. Daley, [2007] 3 SCR 523, 2007 SCC 53 (CanLII), at para 30.

Jury instructions are to be considered within the context of the entire charge

The appellate tribunal will consider the charge as a whole.  The standard that a trial judge’s instructions are to be held to is not perfection.  The accused is entitled to a properly instructed jury, not a perfectly instructed jury: see Jacquard, at para. 2.  It is the overall effect of the charge that matters.

R. v. Daley, at para 31.

Instructing on the Relevant Legal Issues

The trial judge must set out in plain and understandable terms the law the jury must apply when assessing the facts.  This is what is meant when it is said that the trial judge has an obligation to instruct on the relevant legal issues.

Daley, at para 32

The use of model jury instructions--model instructions such as the Canadian Judicial Council’s Model Jury Instructions provide a standard language which judges may use when speaking with members of juries about their duties, the nature of the criminal charge before the court, and the legal rules which apply to the jury's deliberations.  The Supreme Court of Canada itself recommends the use of model instructions, which it has had the opportunity to endorse.

See Department of Justice: http://www.justice.gc.ca/eng/rp-pr/csj-sjc/esc-cde/scje-cdej/p7.html

Jury instructions are not, however, intended to provide a statement of legal principles in the abstract. Jury instructions must, as Justice Watt, the author of a widely-regarded compendium of model jury instructions has emphasized, be tailored to the facts of the specific case. The model instructions are intended to provide a starting point for trial judges. In some cases, the language in the model instructions can be used virtually without change.  In other cases, modification will be needed so that the instructions will achieve the purpose of providing the jury with the applicable legal principles in a format that facilitates the application of those principles to the specific circumstances of the case.

R. v. McNeil, 2006 CanLII 33663 (ON CA), at para 21.

The extent to which evidence must be reviewed

A trial judge presiding in a jury trial is required, except in cases where it would be needless to do so, to review the substantial parts of the evidence and give the jury the position of the defence, so that, in the end, the jury can appreciate the value and effect of that evidence.

Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-498; R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at p. 385; see also R. v. J.S., at para 35.

Proper instructions leave the jury with a sufficient understanding of the facts as those facts relate to the issues the jury has to decide.

 R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 14; R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at p.163.

The extent to which the evidence must be reviewed “will depend on each particular case.  The test is one of fairness.  The accused is entitled to a fair trial and to make full answer and defence.

R. v. Daley, at para 57.

It is not the case that the trial judges must undertake an exhaustive review of the evidence.  Such a review may in some cases serve to confuse a jury as to the central issue.  Brevity in the jury charge is desired. 

R. v. Daley, at para 56.

A trial judge frequently relates the evidence relevant to the positions of the parties on the controversial issues by reviewing the substance of the evidence that bears upon each issue and indicating to the jury what parts of the evidence may support each party’s position. Describing the substance of the evidence does not require a regurgitation of every syllable spoken by any or every witness. Rather, it calls for a measured approach that pares to the evidentiary core of the case, for and against, on the issue under discussion:

MacKinnon, at pp. 386-387.

Evidence reviewed once need not be reviewed twice, provided the instructions make it clear that the same evidence may be of service in the resolution of more than one issue:

Jacquard, at para. 14.

Use of Counsel’s Closing Address

 The closing address of counsel does not relieve the trial judge of the obligation to ensure that the jury is aware of the substance and understands the significance of the evidence to the critical issues in the case. However, a trial judge can take into account the closing addresses of counsel in deciding how to discharge his or her obligation to review and relate the evidence to the relevant issues. A trial judge may refer to, or incorporate by reference, counsel’s submissions to assist in relating the evidence to the positions of the parties on the issues in controversy: MacKinnon, at p. 387.

Appellate review of the trial judge’s charge will encompass the addresses of counsel as they may fill gaps left in the charge: see Der, at p. 14-26; R. v. Daley, at para 58.

The Failure of Counsel to Object to the Jury Charge

While not decisive, failure of counsel to object is a factor in appellate review.  The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation.  See  Jacquard, at para. 38: “In my opinion, defence counsel’s failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection.”

See R. v. Daley, at para 58.

Typically, the trial judge will provide counsel with a copy of the final instructions he/she proposed to give the jury and will solicit their views about the adequacy and correctness of those instructions.

Where counsel receive a copy of the proposed final instructions in advance of delivery, are invited to make submissions about errors and omissions, but voice none and acquiesce in what will be said, the failure to object must be accorded considerable weight when it is later said that the instructions have failed to adequately and fairly present the position of the appellant.

R. v. Polimac, 2010 ONCA 346 (CanLII), 254 C.C.C. (3d) 359, at paras. 89, 96-97. 

On the other hand, where the cumulative effect of several errors is to deprive an appellant of a fair trial, the failure of counsel to object is not determinative on appeal.