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Criminal - Jury Charge (4). R. v. Shabbir
In R. v. Shabbir (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal defendant's appeal, here from charges of sexual assault.
The court considered principles of jury charges:[12] I begin my consideration of this ground of appeal by reference to certain principles that are to be applied to appellate review of jury instructions. As explained in R. v. Abdullahi, 2023 SCC 19, 428 C.C.C. (3d) 1, a functional approach is to be taken to that review. The principles underlying that functional approach include:(a) The accused is entitled to a jury that is properly, not perfectly, instructed.
(b) The charge must be read as a whole.
(c) It is the substance of the charge that matters, not adherence to a prescribed formula or particular sequence.
(d) The charge must be considered not in isolation but in the context of the trial as a whole.
(e) The overriding question is whether the jury understood or was "properly equipped" with the law to apply to the evidence. ....
[16] .... As Watt J.A. observed in R. v. Adan, 2019 ONCA 709, at para. 63:An important factor in appellate review of the adequacy of jury instructions is the position of trial counsel, in particular, whether counsel objected to the charge on the issue raised on appeal. The failure to object is not decisive. A failure to object does not make whole what is otherwise an error. But a failure to object is a factor warranting consideration on appellate review. . R. v. Necan
In R. v. Necan (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's appeal where the only issue was intent to murder.
Here the court considered whether the SOR applicable to jury charges:[21] To this end, when reviewing jury charges for legal error, appellate courts are not to seek out perfection. Nor are they to ask whether the jury charge under review could have been better. Indeed, as with most things in life, almost every jury charge could be improved upon given the luxury of time and reflection. But that is not the world of jury trials.
[22] Accordingly, when reviewing jury charges, appellate courts must remain trained on the overarching question as to whether, in the circumstances of the entire case, the jury was properly equipped to judge the case: Abdullahi, at paras. 35-36. In answering this question, appellate courts must adopt a functional approach by considering the charge as a whole, against the backdrop of the entire trial record, including the evidence elicited and the positions taken and not taken by the parties: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 4, 34, 59. Approaching the grounds of appeal in this manner, I conclude that this jury was indeed properly equipped to judge the case. . R. v. Vassel
In R. v. Vassel (Ont CA, 2024) the Ontario Court of Appeal dismisses a first-degree murder appeal.
Here the court responds to a defence jury charge argument:[9] On the second ground of appeal, the appellant says that the trial judge failed to outline the evidence that the jury should have considered on the element of planning and deliberation. He criticizes the trial judge for, in essence, simply telling the jury to consider all of the evidence on this point without detailing what evidence was relevant. The appellant says that this failure was exacerbated because defence counsel, at trial, had, for tactical reasons, not addressed the element of planning and deliberation in his closing submissions.
[10] The appellant’s criticism of the trial judge’s instructions to the jury is an unfair one. The trial judge told the jury to consider all of the evidence, as she was obliged to do. However, the trial judge then went on to outline specific pieces of evidence that the jury should consider on the element of planning and deliberation: the contents of the video evidence; the timing of the incident; how quickly the events unfolded; the appellant’s movements from the altercation to the car and then back; and the words attributed to the appellant both at the time of the altercation and on his return. This is not a case like R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, leave to appeal refused, [2007] S.C.C.A. No. 258, upon which the appellant relies.
[11] We note, on this point, that the trial was a short one. The evidence would have been very fresh in the minds of the jurors. While another trial judge might have said more, the trial judge in this case identified the salient pieces of evidence that the jury needed to consider on this element of the offence. As this court noted in R. v. Huff, 2012 ONCA 86, at para. 10: “The trial judge also recounted the salient features of the evidence adduced at trial. As in almost any case, he could have said more, but we do not test the adequacy of jury instructions on this basis, else most would fail.”
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