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Criminal - Jury - Pre-Charge Conference

. R. v. Abdullahi

In R. v. Abdullahi (SCC, 2023) the Supreme Court of Canada considers the role and function of a jury pre-charge conference, here focussing on counsel's silence in response to the conference oppourtunity:
[66] Trial judges often convene a pre-charge conference, as provided for under s. 650.1 of the Criminal Code. In this proceeding, the judge will usually provide counsel with a draft of the jury charge and invite comments on it. This is intended to be a meaningful exchange. Counsel should lay their cards on the table, and the judge should be mindful of what counsel says, bearing in mind that it is an adversarial process. After the judge has instructed the jury, counsel have an opportunity to raise objections to the charge or to request clarifications or additional instructions before the jury commences its deliberations. As with the pre-charge conference, this is meant to be a meaningful exchange where counsel lay their cards on the table. Finally, when juries raise questions during their deliberations, counsel have the opportunity to provide submissions to the judge as to how to answer the questions. Where counsel fails at these various opportunities to request the inclusion of an instruction or fails to raise an objection to the charge as delivered, appellate courts have often turned to counsel’s silence as an important consideration.

[67] Although the silence of counsel can be a relevant consideration, it should be recalled that the responsibility for the jury charge lies with the trial judge, not counsel. This Court has on several occasions stated that the silence of counsel, while relevant, is not determinative (see, e.g., Thériault v. The Queen, 1981 CanLII 180 (SCC), [1981] 1 S.C.R. 336, at pp. 343-44; Daley, at para. 58; Mack, at para. 60). To hold otherwise would “unequivocally prejudice an accused’s right of appeal in cases where counsel is inexperienced with jury trials” (Jacquard, at para. 37). The silence of counsel is simply one of many considerations under a functional approach.

[68] Counsel’s silence may be particularly relevant as to whether a contingent instruction was required. For example, the lack of a request by defence counsel for the inclusion of a limiting instruction against general propensity reasoning may reinforce the conclusion that such an instruction was not required in the circumstances of the case (Calnen, at para. 41). Counsel’s silence may also suggest that an instruction that was given was sufficiently detailed. For example, the lack of objection may indicate the sufficiency of a judge’s Vetrovec instruction (Khela) or instructions on advanced intoxication (Daley). Counsel’s silence could also support a conclusion that the charge read as a whole accurately set out the law relevant to a given issue. For example, in Goforth, the lack of objection by defence counsel did not make the jury charge accurate, but it supported the conclusion that the overall effect of the charge accurately instructed the jury with the foreseeability standard for the offence (para. 39). One can take the view that an instruction good enough for counsel was likely good enough for the jury (see, e.g., Jaw, at para. 36). But, the impressions of the moment can be mistaken, especially in complex cases with multiple legal issues.

[69] Counsel’s silence may be particularly significant where there are indications that it was a tactical decision. If the absence of an instruction at trial could have benefited the party who argues on appeal that it was required, then the appellate court might ask whether counsel made the tactical decision not to seek the instruction at trial (Calnen, at para. 41; see also R. v. Royz, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3). This can be a significant consideration. Counsel cannot withhold an objection at trial and save it for an appeal. Appellate courts are also rightly hesitant to second-guess the tactical decisions of counsel, save to prevent a miscarriage of justice (Calnen, at para. 67; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 34). Conversely, if the omission of an instruction would have had no apparent benefit for the appealing party, this may suggest that the error was an oversight rather than a tactical decision (Khill, at para. 144; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 48).

[70] Appellate courts may also be called on to consider whether counsel’s silence is relevant to the curative proviso. Counsel’s silence may suggest, for example, that while an omission in the judge’s instructions was an error of law, the error was harmless in the circumstances (R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 143; Jaw, at para. 44). As noted before, this is a distinct inquiry.


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