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Criminal - Jury Charge (2)

. R. v. Odesho

In R. v. Odesho (Ont CA, 2023) the Court of Appeal considers the adequacy of a jury caution:
[23] Appellate review of jury instructions requires a functional perspective. The instructions must be considered as a whole and in the context of the conduct of the particular trial. There is no one way to instruct a jury and there is no one way to deal with evidence in the course of a jury instruction. It is well-settled that trial judges have a broad discretion as to the manner in which they instruct a jury, as long as those instructions adequately arm the jury with the tools necessary to return a true verdict based on the application of the proper legal principles to the facts as found by the jury: R. v. Cargioli, 2023 ONCA 612, at para. 103; R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 36-37, 40-46, 50, and 53-56; and R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at paras. 20-22.
. R. v. Moreira

In R. v. Moreira (Ont CA, 2023) the Court of Appeal considers the requirements of a jury charge:
[74] As noted by this court in R. v. Stojanovski, 2022 ONCA 172, 160 O.R. (3d) 641, at para. 21, jury charges are reviewed “in the context of the trial as a whole” and against a standard of adequacy. In general, a jury charge must include the factual issues to be determined, the law that must be applied, the parties’ positions, and the relevant evidence: R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 50, leave to appeal refused, [2014] S.C.C.A. No. 13; Stojanovski, at para. 19.

[75] The functional question for the appellate court to ask is whether the jury was left with a sufficient understanding of the facts as they relate to the relevant issues and whether the jury would have adequately understood the issues, the law relating to the charge, and the evidence to be considered in respect of those issues: See also R. v. Josipovic, 2019 ONCA 633, 147 O.R. (3d) 346, at para. 67; and R. v. Saleh, 2019 ONCA 819, 380 C.C.C. (3d) 445.

[76] This court in Huard, at para. 64, explained that:
Since the actus reus and mens rea of aiding and abetting are different from the corresponding elements of the principal offence, jury instructions in a case in which an accused is alleged to have participated in the commission of an offence as an aider or an abettor should not only explain the essential elements in aiding or abetting, but should also link those elements to the essential elements of the offence charged, so that the jury understands what the Crown must prove to establish an accused's liability for the specific offence as an aider or an abettor.

Although the trial judge made reference to aiding in the course of discussing the elements of the offence, he never explained what the Crown had to prove to establish liability for murder as an aider. He did not relate the generic description of aiding to the specifics of this case, or the evidence that could assist the jury in determining whether either appellant was liable as an aider. [Emphasis added.]
. R. v. Holder

In R. v. Holder (Ont CA, 2023) the Court of Appeal considered the adequacy of a jury charge:
[18] Appellate courts are to take a functional approach when reviewing a jury charge by looking at the alleged errors in the context of the evidence, the entire charge, and the trial as a whole: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at para. 21. In this case, we see no error in the jury charge. The jury was well equipped to understand the caution they were to take in assessing the identification evidence, including the significance of Mr. Cseko’s prior statements identifying the appellant as the shooter.
. R. v. Giscombe

In R. v. Giscombe (Ont CA, 2023) the Court of Appeal considered the appellate standard of review for jury charges:
[12] Appellate review of a jury charge follows a functional approach. An accused is entitled to a jury that is properly, not perfectly, instructed. The overriding question is whether the jury was adequately and sufficiently instructed to decide the case according to the law and the evidence. Any alleged errors will be considered within the context of the entire charge and the trial as a whole: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 34-37; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32.
. R. v. Cargioli

In R. v. Cargioli (Ont CA, 2023) the Court of Appeal considered appeals by three defendants from convictions, one for first-degree murder and two for second-degree murder. Here the court considers the appellate deference to be accorded respecting a jury charge:
[103] Appellate review of jury instructions requires a functional perspective. The instructions must be considered as a whole and in the context of the conduct of the particular trial. There is no one way to instruct a jury and there is no one way to deal with the evidence in the course of a jury’s instruction. Trial judges have a broad discretion as to the manner in which they instruct a jury, as long as those instructions adequately arm the jury with the tools necessary to return a true verdict based on the application of the proper legal principles to the facts as found by the jury: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at paras. 20-22; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 44-48; R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at pp. 325-26 ; R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, at paras. 19-21, leave to appeal refused, [2014] S.C.C.A. No. 254. Nothing in the approach taken by the trial judge precluded achieving that goal.
. R. v. Budimirovic

In R. v. Budimirovic (Ont CA, 2023) the Court of Appeal considered an appeal of a jury charge:
[7] The proper approach to the review of a charge to jury is well settled. Appellate courts must take a functional approach, reading the charge as a whole, and keeping in mind that it is the substance of the charge that matters, not adherence to a prescribed formula or a particular sequence. R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 35. The overriding question is whether the jury understood or was properly equipped with the law to apply to the evidence: R. v. Calnen, 2019 SCC 6, 1 S.C.R. 301, at para. 9.

....

[12] As the Supreme Court made plain in Abdullahi, at para. 35, it is the substance of the charge that matters, not adherence to a prescribed formula. Here the trial judge clearly and correctly explained to the jury that they must deliver a separate verdict for each accused on each charge, considering only the evidence that relates to a particular charge. The jury was also told that they could not rely on the disposition of the appellant to commit crimes as a basis for findings of guilt on the offences charge.

[13] In these circumstances, the jury would have understood that they could not use their findings of guilt on one count to convict the appellant on any other count. They were told only to consider the evidence on each count.
. R. v. Ethier

In R. v. Ethier (Ont CA, 2023) the Court of Appeal considered appellate testing of a jury charge:
[28] Appellate courts take a functional approach when reviewing a jury charge for legal error. An accused is entitled to a jury that is properly, not perfectly, instructed. The overriding question is whether the jury was properly equipped to decide the case according to the law and the evidence − a properly equipped jury being one that is both accurately and sufficiently instructed. Any alleged errors will be considered within the context of the entire charge and the trial as a whole: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 34-37; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32.

....

[40] A trial judge is obligated to ensure that the jury charge is fair and balanced in its recitation of the evidence and review of the positions of the parties. Given the charge’s significance in guiding a jury through the adversarial process of a trial, it is critical that the charge remain objective and not undermine or prejudice a party’s position: R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at paras. 113-15; R. v. Laforme, 2022 ONCA 395, at para. 25.
. R. v. Atienza

In R. v. Atienza (Ont CA, 2023) the Court of Appeal comments on jury charges:
[57] ... Although a failure to object is not determinative of whether a jury instruction is sufficient, the absence of an objection by trial counsel provides support to the conclusion that in the context of the evidence and issues at trial, the instruction was sufficient: R. v. Badgerow, 2019 ONCA 374; 146 O.R. (3d) 35, at para. 19; R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 89.

[58] The appellant would have preferred that the trial judge provide more detail or more emphasis to the theory that there may have been more than one vehicle at the scene. But this preference does not give rise to a reversible error.

[59] Trial judges have flexibility in crafting the language and structure of jury instructions. An appellate court must take a functional approach to reviewing a jury charge, by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole. What matters is whether the jury is given a functional understanding of its task and the issues it is required to decide: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at paras. 32-41, 62; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; Badgerow, at paras. 17-21.
. R. v. Abdullahi

In R. v. Abdullahi (SCC, 2023) the Supreme Court of Canada re-addressed the test for the adequacy of a jury charge, favouring a wholistic and functional approach "to properly equip the jury in the circumstances of the trial to decide the case according to the law and the evidence" [paras 30-62]. It summarized their comments here:
(3) Summary

[72] In sum, when reviewing a jury charge for potential legal error, appellate courts should adopt a functional approach by reading the charge as a whole and determining whether the overall effect of the charge achieved its function: to properly equip the jury in the circumstances of the trial to decide the case according to the law and the evidence. The appellate court’s task needs at all times to be directed to this function. It is helpful to view a properly equipped jury as one that is both accurately and sufficiently instructed. The appellate court should consider if the jury had an accurate understanding of the law from what the judge said in the charge, bearing in mind that an instruction does not need to meet an idealized model, nor must it use prescribed wording. The appellate court should also consider if the judge erred by failing to give an instruction, either with sufficient detail or at all. While some instructions are mandatory and their omission will constitute an error of law, whether other instructions are needed will be contingent on the circumstances of the case. Whenever an instruction is required, the judge needs to provide that instruction with sufficient detail for the jury to undertake its task. The circumstances of the trial cannot replace the judge’s duty to ensure the jury is properly equipped, but they do inform what the jury needed to understand to decide the case.
At this date this is the most definitive statement by the SCC on these jury charge issues.

. R. v. Dinall

In R. v. Dinall (Ont CA, 2023) the Court of Appeal considered the adequacy of jury charges, specifically regarding one on the co-conspirator's exception to the hearsay rule:
[18] Trial judges are not held to a standard of perfection in crafting their jury charges. This court is to take a functional approach to the charge, by reviewing the errors alleged in the context of the evidence, the jury charge as a whole and the trial as a whole: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at para. 21.

....

[27] This court has commented that instructing a jury on the co-conspirator’s exception to the hearsay rule can be challenging. It is a complex rule, and it may be difficult for the jury to understand: R. v. Hall, 2010 ONCA 421, 267 O.A.C. 35, at para. 21; R. v. Panzo, 2022 ONCA 359, at para. 35.
. R. v. Dubros

In R. v. Dubros (Ont CA, 2023) the Court of Appeal considers the use of 'examples' in jury charges:
[56] Finally, I am not persuaded that the trial judge’s instructions would have dissuaded the jury from asking a question about a specific concept if it had such a question or wanted more assistance from the trial judge. The appellant does not suggest that the trial judge should have tried to provide examples. Such efforts have led to difficulties in the past: see for example, R. v. Bisson, 1998 CanLII 810 (SCC), [1998] 1 S.C.R. 306, at pp. 310-311; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 98. The jury in this case demonstrated, by asking questions both during the evidentiary portion of the trial and while the jury instructions were being delivered, that they had no hesitation in seeking clarification of matters it did not fully understand. If the jury required additional help, I have no doubt they would have asked an additional question.
. R. v. Chambers

In R. v. Chambers (Ont CA, 2023) the Court of Appeal considered recent Court of Appeal recommendations to vary jury charges:
The charge was not inadequate, unfair, or unbalanced

[49] The appellant argues that the jury charge was lengthy and simply recited much of the evidence, contrary to this court’s guidance in cases such as R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, and R. v. Barreira, 2020 ONCA 218, 62 C.R. (7th) 101. The appellant notes that the judge was the same trial judge as in Barreira and submits that he made the same mistake in this case: in essence, repeating the evidence as a whole without parsing it and relating it to the live issues.

[50] We do not accept this argument.

[51] In fairness to the trial judge, this court’s decision in Barreira was released subsequent to the jury charge given in this case. Nevertheless, the charge cannot be impugned on this basis. This was a lengthy trial and there was a significant gap in time between the testimony of the final witness and the jury charge – almost four weeks – as a result of the Christmas holidays and trial counsel’s preference to put the matter over to the new year. In these circumstances, the trial judge’s decision to include a relatively lengthy recitation of the evidence is not surprising, even if it might not otherwise have been appropriate. Significantly, the trial judge reduced the length of the charge in response to the appellant’s submission, based on Newton, that the first draft of the charge was lengthy.

[52] Moreover, unlike Barreira, there was no risk that the charge in this case would lead the jury to consider irrelevant issues or evidence not relevant to a live issue. In Barreira, by the end of the trial, the issues had narrowed largely due to one of the appellants admitting to shooting the deceased and causing his death. Under the first element of first-degree murder (causation), the trial judge in Barreira stated the evidence from start to finish instead of simply referring the jury to the appellant’s concession. Under the second element (whether the death was caused unlawfully), the trial judge invited the jury to consider all of the evidence reviewed under the first element rather than pointing the jury to the concession that the appellant had shot the deceased at close range. The third and fourth elements (state of mind for murder and planning and deliberation) were at issue in Barreira. The trial judge invited the jury to consider all the evidence previously summarized and only briefly highlighted a few pieces of evidence, much of which was not helpful given the issues the jury had to decide. That was the context in which this court held that the trial judge failed to isolate and relate the relevant evidence to each issue the jury had to determine.

[53] This case stands in contrast to Barreira. The identity of the shooter was very much at issue in the appellant’s trial. Whether the appellant was a party to Warner’s shooting of Tsibu-Darkoh was also at issue. With respect to the appellant’s conviction for the second-degree murder of Musgrave, under the first element (whether the particular accused caused Musgrave’s death by shooting him), the trial judge was required to review much of the relevant evidence from the witnesses at the party in order to assist the jury in deciding this issue. This evidence was also relevant to the second element (whether Musgrave’s death was caused unlawfully), and the trial judge highlighted that the unlawful act in this case was the alleged shooting. With respect to the third element (whether the particular accused had the state of mind for murder), although the trial judge referred the jury to the evidence he had previously summarized, he also specifically highlighted and repeated numerous pieces of evidence that were relevant to this issue with respect to each accused individually. This focused review of the evidence was not brief or irrelevant. The trial judge took a similar approach in the charge with respect to the elements of aggravated assault and the live issue of party liability. In the circumstances of this case, the charge was adequate and related the evidence to the issues: R. v. Gardner, 2021 ONCA 539, leave to appeal refused, [2021] S.C.C.A. No. 323; R. v. Alexis, 2020 ONCA 334, 388 C.C.C. (3d) 226.

[54] As to balance, we note that two drafts of the jury charge were distributed to counsel for comment. The appellant’s counsel offered several suggestions on the second draft, but at no point did he object on the basis of balance concerns. Again, while a failure to object is not determinative, in these circumstances it is a strong indication that the charge was balanced: R. v. Laforme, 2022 ONCA 395, at para. 31; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 146. This ground of appeal fails.
. R. v. Millard

In R. v. Millard (Ont CA, 2023) the Court of Appeal considered two murder appeals, heard together. In this quote the court considers generally the goals of a jury charge:
[51] The proposition that a jury charge should review, among other things, the material evidence relevant to the legal framework and related factual issues in the case, as well as the position of the parties on these issues, is not controversial: R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508 (Ont. C.A.), at para. 11. Of course, that review must be balanced: R. v. Walker, 2019 ONCA 806, 58 C.R. (7th) 7 (Ont. C.A.), at para. 6, leave to appeal refused, [2020] S.C.C.A. No. 38954; R. v. Mendez, 2018 ONCA 354, at para. 14. That said, the appellate standard for reviewing the sufficiency of a charge is not perfection, but whether the charge is “functional” in fulfilling its purpose: Newton, at para. 13. A trial judge is not required to review all of the facts upon which the defence relies, or to provide “a minute record of the evidence adduced”: R. v. Daley, 2007 SCC 53, [2007] 2 S.C.R. 523, at para. 55 (citations omitted); R. v. McIntyre, 2012 ONCA 356, 95 C.R. (6th) 106 (Ont. C.A.), at para. 30. Ultimately, 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 “are we 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 (citations omitted); R. v. Wood, 2022 ONCA 87, 411 C.C.C. (3d) 495 (Ont. C.A.), at paras. 130-32. These standards were met in this case.
. R. v. Millard

In R. v. Millard (Ont CA, 2023) the Court of Appeal considered two murder appeals, heard together. In these quotes to court considers the jury charge issue of whether it is allowable to "engage in two-step reasoning, ... finding facts before applying the law.":
[42] This court reaffirmed in R. v. Hayles-Wilson, 2022 ONCA 790, that it is “wrong” to direct jurors to engage in two-step reasoning, by finding facts before applying the law. I accept the appellants’ submission that the trial judge erred in this case by giving a similar two-step instruction. I would not, however, allow the appeal on this basis.

[43] The impugned two-step direction is found in the written jury charge that jurors were provided with, and it was repeated orally in court. The trial judge told jurors that they should “begin [their] deliberations by trying to decide the facts, that is, decide issues of credibility and reliability and weight and make findings about what happened during the relevant time period. In other words, do your fact finding first” (emphasis in the original written jury charge). In his oral charge the trial judge augmented this charge by sharing his view with jurors that this “advice” would make it easier to apply complex legal concepts.

[44] Although the trial judge was wrong to provide this two-step charge, I would not find that a reversible error occurred, in the circumstances of this case.

[45] First, in Hayles-Wilson, where the appeal was denied notwithstanding that this same kind of error was made, the trial judge did not direct jurors to reason in this way but was “merely recommending that approach”. This was advice, not a firm direction. The same holds true in this case.

[46] Second, the mischief that two-step instructions can create is sufficiently attenuated in the circumstances of this case such that it would not be in the interests of justice to overturn the verdicts on this basis:
. The primary concern is that two-step reasoning is not consistent with the proper evaluation of reasonable doubt because: (1) not all facts that feature in a narrative of “what happened” need to be proved to this standard, only the facts relied upon to establish the elements of an offence, which are identifiable only when a jury is endeavouring to apply the law; (2) standards of proof apply to ultimate issues, not individual facts; and relatedly, (3) directing jurors to find facts first creates the risk that jurors may discard facts because there is doubt about what those facts prove, when uncertainty about what facts prove can operate as a basis for a finding of reasonable doubt: Hayles-Wilson, at paras. 22-24, citing R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 360-61. None of these concerns arise materially in this case. Concern (1), that the reasonable doubt standard will be applied to facts that legally do not have to be proved beyond a reasonable doubt would prejudice the Crown, but not the accused. It is therefore not a concern that the appellants can rely upon. With respect to concerns (2) and (3), there is no material reason to fear that such reasoning errors occurred in this case. I agree with the Crown’s submission on appeal that the jurors received sufficiently clear and correct direction on the elements of the offence, how to assess reasonable doubt, and how to apply standards of proof, to ameliorate these risks. In sum, although a two-step direction can invite an improper evaluation of reasonable doubt, there was no risk of that happening when this jury direction is read as a whole.

. A related mischief created by the two-step reasoning the trial judge encouraged is that jurors may not be able to resolve factual controversies, and directing them to determine the facts first can imply that they are obliged to come to a definitive factual conclusion: Hayles-Wilson, at para. 24. Here the trial judge did not direct jurors to decide “what happened”. He told them to “[try] to decide the facts”. This, along with his repeated instructions that reasonable doubt can arise from a lack of evidence, ensured that jurors in this case did not proceed on the erroneous understanding that they were required to resolve “what happened”.

. A remaining concern is that two-step instructions are capable of frustrating the entitlement of individual jurors to arrive at their own verdicts without agreeing to the same facts: Hayles-Wilson, at para. 22. I see nothing in the two-step charge in this case that could suggest to jurors that they must collectively agree on the factual findings before settling their verdicts.
[47] I would therefore reject this ground of appeal.


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Last modified: 09-01-24
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