The Jury Charge: Judges are not Court Reporters

Trial judges have a broad discretion in how to charge a jury. Their decision about how much evidence to review, what structure to use and how to organize the charge falls within that discretion. But, ideally, the charge should contain some basic components. One of these components is to set out for the jury the material evidence relevant to the issues that the jury must resolve.
It is not the function of a trial judge to simply review at length all of the evidence (in reality the judge’s notes of the evidence) that the jury has heard. Rather, the task of the trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language.
R. v. Jack (1993), 88 Man. R. (2d) 93 (C.A.), aff’d [1994] 2 S.C.R. 310, at para. 39.
Going through the evidence witness by witness
A witness by witness recitation of the evidence is almost always ineffective. It is ineffective for at least two reasons.
1.       First the recitation tends to be unnecessarily detailed. When a trial judge simply recites all the evidence of each witness, instead of trying to distill it for the jury, the jurors will naturally have difficulty processing what evidence is important and what evidence is not.
2.       The second and most important reason a witness by witness recitation is ineffective is that the summary of the evidence bears no relationship whatsoever to the issues in dispute. Judges are not court reporters. 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.
R. v. Newton, 2017 ONCA 496, at para 15, 16.
A trial judge who provides the jury with a witness by witness recitation of the evidence runs a risk of failing to relate the material evidence to the issues that the jury must decide.  Such a failure undermines the fairness of the trial.  
See R. v. Newton, supra.

Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).

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