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Judges - Judicial Undertakings. R. v. Dion
In R. v. Dion (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal from a conviction for first-degree murder.
The court considered the failure of the judge to comply with an undertaking, here to deliver a jury charge as earlier indicated:(1) Did the trial judge commit a reversible error in failing to carry out his undertaking?
[86] In my view, if a jury charge that is delivered is legally adequate, no legal error will have occurred simply because that charge deviates from the charge that a trial judge has undertaken to give. The law assures individuals of legally adequate charges, not charges that have been agreed to. Mr. Dion could point to no authority suggesting otherwise.
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[88] I do accept that there may be circumstances where the failure by a trial judge to give a jury charge they have undertaken or agreed to provide could cause a miscarriage of justice that would provide a successful ground of appeal pursuant to s. 686(1)(a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. But Mr. Dion has not established that a miscarriage of justice occurred in this case. Had he shown that his trial counsel limited his closing submissions or otherwise compromised his case in the reasonable expectation that the anticipated charge would be provided, things may have been different. But as described in para. 79 above, trial counsel made detailed submissions in anticipation that the jury would consider this evidence. In my view, the failure by the trial judge to give the charge he had agreed to give caused no injustice.
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