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Criminal - Jury Charge - 'Rolled-Up' Charge. R. v. Ethier
In R. v. Ethier (Ont CA, 2023) the Court of Appeal considered a 'rolled-up' jury charge:(1) Rolled Up Instruction Ground of Appeal
[30] A rolled-up instruction informs the jury that it should consider the cumulative effect of all the evidence relevant to an accused’s state of mind when deciding whether the Crown has proven beyond a reasonable doubt that the accused had the mens rea for murder: R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29, at para. 86, leave to appeal refused, [2018] S.C.C.A. No. 50. A core purpose of this instruction is to ensure the jury does not compartmentalize the evidence, considering it only in connection with a discrete defence, justification, or excuse: R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 104. Such an instruction mitigates the risk that, if the jury rejects a particular defence, justification, or excuse, they will not consider whether the evidence pertaining to it, taken cumulatively with all the evidence, raises a reasonable doubt when deciding whether the accused had the mens rea for murder: R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683, at para. 59; R. v. Fraser (2001), 2001 CanLII 8611 (ON CA), 56 O.R. (3d) 161 (C.A.), at paras. 25-26, leave to appeal refused, [2002] S.C.C.A No. 11.
[31] A rolled-up instruction is increasingly understood to be mandatory in most murder trials, but ultimately its necessity is contingent on the nature of the evidence: R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at para. 96. The instruction should generally have the following features: (i) the identification of the relevant factors; (ii) a description of the relevant evidence; and, (iii) a direction to consider the cumulative effect of the evidence on the accused’s state of mind without regard to any decision about any other issue to which the evidence may also be relevant: R. v. Flores, 2011 ONCA 155, 274 O.A.C. 314, at para. 157. As with most jury instructions, substance prevails over form.
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