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Criminal - Jury Charge - Laboucan. 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.
Here the court considers a 'Laboucan error', addressing a perceived tendency for jurors to assume that defendant's lie:C. The Laboucan error
[26] The appellant submits that the trial judge ought to have given an instruction to the jury to address the issue that was considered in R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397. That issue involves the potential for the jury to assume that an accused person will not tell the truth when they give evidence because of their significant interest in being found not guilty. This is often a serious concern because juries, who do not have the benefit of judicial experience, can easily succumb to the natural human tendency to assume that people will say anything to save their liberty and avoid the harsh consequences of conviction. See, e.g., E.F.B. Johnston, Esq., K.C. & L.A. Schneider, “Evidence of Accused Persons,” [1931] 4 D.L.R. 1, at pp. 3-5; Michael E. Webster, “The Accused’s ‘Great Interest’: Do I Dare To Testify?” (1994) 36 Crim. L.Q. 185, at pp. 185-186.
[27] This case provides a good example of how the issue can arise. In his instructions to the jury, the trial judge gave the standard instruction on assessing the evidence of witnesses including the following point: “Did the witness have any reason to give evidence that is more favourable to one side than to the other?”
[28] Because the appellant gave evidence, the trial judge also gave a W.D. instruction.[3] That instruction included the following: “When a person charged with an offence testifies, you assess his evidence in the same way and in accordance with the same principles that you assess the testimony of any other witness.”
[29] The trial judge then referred back to his earlier instructions on how to assess the evidence of witnesses.
[30] The decision in Laboucan addresses the concern that arises from the juxtaposition of these forms of instructions. If the jury only has the two instructions I have set out above, it might lead a jury to assume that an accused person’s self-interest in obtaining an acquittal will lead them not to tell the truth. That assumption must, of course, be rejected because, among other reasons, it offends the principle that accused persons are presumed to be innocent. In reality, despite the views of some, not all accused persons are, in fact, guilty.
[31] The decision in Laboucan discussed whether there should be an absolute prohibition on triers of fact considering this element in their assessment of an accused person’s evidence, and rejected it. However, they noted that it is a factor that will be “unhelpful” in most cases. Charron J. said, at para. 14: “In most cases, I would agree with counsel that this factor is simply unhelpful and, as a general rule, triers of fact would be well advised to avoid that path altogether, lest they unwittingly err by making the impermissible assumption that the accused will lie to secure an acquittal.”
[32] I would suggest, in line with that general rule, that trial judges ought to consider the impact of the standard instructions, that I have set out above, in this respect and, in appropriate cases, give a specific instruction to juries to alleviate the concern that arises. By way of example, the instruction referred to in R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at para. 35, leave to appeal refused, [2016] S.C.C.A. No. 299, would be effective: “You must not presume that an accused who testifies will lie out of self-interest in order to avoid conviction”.
[33] Such an instruction might fit comfortably in the W.D. instruction directly after mentioning that an accused person’s evidence is to be assessed in the same way as all other witnesses. Providing this instruction is preferable to the alternative of no instruction relating to the witnesses’ interest in the outcome of the case, which may not always prevent juries from following the natural human tendency to assume that accused people will lie out of self-preservation. See R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 118.
[34] Whether such an instruction ought to be given will fall to be determined on the facts of each individual case. Trial judges should give this instruction if the accused’s motive to lie is raised at trial, whether by the Crown, co-accused, or the trial judge, and no exception to Laboucan’s general rule applies. See R. v. D.B., 2024 ONCA 546, at paras. 40-43; Sheriffe, at paras. 32-35; R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 118. In other cases, it is within the discretion of trial judges to decide whether or not to give that instruction. Trial judges should exercise that discretion by considering whether the evidence and issues raised at trial create a real risk that the jury would follow the natural human tendency to assume that accused people will lie out of self-preservation.
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