Simon's Megalomaniacal Legal Resources

Juries (Civil) - Closing Address

. Jarvis v. Oliveira

In Jarvis v. Oliveira (Ont CA, 2024) the Ontario Court of Appeal allowed a negligence appeal "from a civil jury trial concerning a collision between a motorist and a young pedestrian" - where a central issue was the degree of the plaintiff's fault, the trial court denying liability entirely.

In these quotes, the court addresses the 'prejudice' experienced by the plaintiff, both in the defendant's closing address and in the jury charge:

[51] In my respectful view, the sequence of events outlined above resulted in a trial that was unfair. Respondent counsel was permitted to impugn the character of Ms. Jarvis, a minor at the time of the events at issue, based on evidence of marginal probative value. This was done by installment over the course of the trial, and in the face of counsel’s representation to the trial judge that he would not attempt to “besmirch” her character. This occurred despite appellant counsel’s repeated requests for clarity on this issue. I accept that there were no strong objections to the trial judge’s charge, but appellant counsel did provide input into the final version, maintaining that there should be an instruction about character evidence. However, at that point, it was doubtful that any warning could have reclaimed trial fairness. The charge that was given did not restore the balance.

....

(d) Respondent Counsel’s Jury Address Was Inflammatory and Prejudicial

[66] The prejudice that accompanied the admission of the bad character evidence was compounded by respondent counsel’s jury address, which highlighted the evidence repeatedly.

[67] Inflammatory jury addresses are typically the province of criminal appeals. The focus is usually on Crown counsel: see Robert J. Frater, Prosecutorial Misconduct, 2nd ed. (Toronto: Thompson Reuters, 2017), at pp. 249, 264-265. The issue sometimes arises by counsel for a co-accused in a multiple-accused trial: see R. v. Giesecke (1993), 1993 CanLII 8600 (ON CA), 13 O.R. (3d) 553 (C.A.). Inflammatory jury addresses are objectionable because they distract jurors from their solemn duty to reach a verdict based on their appraisal of the evidence and the applicable law. Inflammatory jury addresses appeal to emotion, prejudice, other irrelevant considerations, or a combination of each. They have no place in the adjudicative process.

[68] The same principles apply to civil jury trials. In Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), this court set out the principles that should inform the propriety of opening and closing addresses in the civil jury context. After noting the prohibition against the expressions of personal opinion by counsel, Cronk J.A. wrote, at para. 16:

Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time. Such comments are “inflammatory”, in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness. [Emphasis added.]

See also Fiddler, at paras. 16-17; J. Kenneth McEwan, Sopinka on the Trial of an Action, 4th ed. (Toronto: LexisNexis, 2020), at pp. 183-186.

[69] That being said, the courts afford counsel “considerable latitude in a closing address”: Brochu, at para. 17, citing Sopinka on the Trial of an Action. In Landolfi, Cronk J.A. wrote that, at para. 77:

This principle lies at the core of the advocate’s duty to his or her client and the independence of the bar. Counsel are required to advance their client’s cause fearlessly and with vigour, so long as this is done in accordance with the rules of court and professional conduct and in conformity with counsel’s obligations as an advocate and officer of the court.

[70] Cronk J.A. then reaffirmed the limitations on counsel from her earlier reasons in Brochu, reproduced above. See also Fiddler, at paras. 35-37.

[71] In my view, respondent counsel’s address was designed to appeal to the jury’s emotions by denigrating Ms. Jarvis’ character. He had previously asked the trial judge to tell the jury that Ms. Jarvis was fleeing “the scene of a crime”, the implication being that she was a “criminal”. This request was made in the face of counsel’s previous representations that he was not attempting to “besmirch” Ms. Jarvis’ character.

[72] Respondent counsel further claimed that Ms. Jarvis had “cheated” the taxi driver, implying that she was a bad person who did not deserve to be compensated. Respondent counsel fortified this submission with the following rumination: “Now, this is not something any person would likely be proud of but there may be some people who are proud of it.” This censorious and moralizing commentary, which had no factual foundation, had no place in counsel’s jury address.

[73] In the face of an inflammatory jury address, a judge presiding over a civil jury trial has three options. They may caution the jury by giving a correcting instruction, strike the jury, or declare a mistrial: Gilbert v. South, 2015 ONCA 712, 127 O.R. (3d) 526, at para. 21; and Penate, at para. 19. As discussed below, no caution was given about counsel’s improper remarks.

(e) The Jury Charge Was Inadequate

[74] The jury charge must be examined both in terms of how it addressed the inadmissible evidence and the inflammatory jury address. In this case, they are inextricably bound. The charge failed to meaningfully address the dangers associated with this nascent theme of the trial.

[75] In Gilbert, Laskin J.A. addressed what should be included in a correcting instruction, at paras. 26-27:

Ideally, a correcting instruction should have four components. It should

- be clear and unambiguous;

- point out to the jury the offending comments;

- explain that these comments are improper and why they are so; and

- instruct the jury to disregard the comments and base its findings and decision solely on the evidence.

The trial judge has considerable scope in fashioning a correcting instruction. An appellate court should not intervene unless the interests of justice require it to do so. [Emphasis added.]

[76] Similarly, in Fiddler, LaForme J.A. said, at para. 18:

Generally courts are to be guided by the principle that clear improprieties in an opening or closing address by counsel are to be identified for the jury and coupled with an unambiguous direction that they are to be disregarded as irrelevant. In this way, the jury will know what statements by counsel are wrong or inappropriate and will be left in no doubt about the way in which it is to approach its task: Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767 (C.A.), at paras. 106-07. This need not involve an admonishment of counsel, although, in some cases, that may be appropriate in the exercise of the trial judge's discretion. [Emphasis added.]

[77] In my view, the trial judge’s correcting instructions on character evidence were not sufficient. The jury needed to be told in unequivocal terms that it must not use the evidence concerning the taxi fare, and counsel’s comments about it, to find that Ms. Jarvis was a bad person, a “cheat”, who was undeserving of compensation. Instead, and with respect, the instruction was confusing. For convenience, I repeat the instruction here:

Ms. Seixas’ testimony was that Ms. Jarvis did not pay the taxifare and was fleeing from the cab is part of the narrative as to how this collision occurred. Ms. Jarvis has no recollection of the collision. This evidence was not put to Ms. Jarvis. The evidence should not be used to show that Ms. Jarvis has a bad general reputation. It is proper for you in deciding the credibility of a witness and the weight to be given to the witnesses’ evidence, to consider all the evidence both for and against this admission. However, you must not use it for any other purpose. If you see fit, you may reject it altogether, and decide on the credibility and weight of the witness’ testimony without regard to this evidence.

[78] As noted above, during the pre-charge conference, it would appear that the trial judge thought the evidence had impeachment value, that it was relevant to credibility. She removed a sentence objected to by both counsel. But the final instruction, as set out above, remained largely tethered to the issue of credibility, oscillating between the evidence of Ms. Jarvis and Ms. Seixas. It would have been confusing to the jury.

[79] The trial judge was required to instruct the jury not to use the taxi fare evidence to infer that Ms. Jarvis was a person of bad character who should not be compensated. The jury should also have been instructed to disregard respondent counsel’s inflammatory comments about the taxi fare evidence. She should have also told them not to fill out the jury sheet in the manner that respondent counsel had told them to. Instead, when setting out the positions of the parties, the trial judge endorsed some of the problematic aspects of the evidence by repeating the theme of respondent counsel’s approach.

[80] In conclusion, the trial judge’s final instructions did not defuse the prejudicial impact of the improperly admitted evidence, nor did they neutralize the improper comments in respondent counsel’s closing address.

. Gilbert v South

In Gilbert v South (Ont CA, 2015) the Court of Appeal discussed the ethical limits of counsel when making a closing address in a civil jury trial, and the remedial options of judges where the address is improper:

(c) Discussion

[17] In three reasonably recent decisions, our court has discussed the role of the advocate in adversarial proceedings, the limits on an advocate’s closing address to a civil jury, the remedies available to a trial judge when a closing address is improper, and the scope of appellate review: see Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722; Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767; Fiddler v. Chiavetti, 2010 ONCA 210 (CanLII), 317 D.L.R. (4th) 385.

[18] The advocate’s role for one party in a civil trial is necessarily partisan. Because it is partisan, the advocate has the right, even in some cases the duty, to make an impassioned and zealous address on behalf of a client. The commentary to Rule 5.1-1 of our Law Society’s Rules of Professional Conduct puts it this way: “In adversarial proceedings, the lawyer has the duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.”

[19] Because the advocate has this right, even this obligation, courts have understandably given the advocate wide latitude in a closing jury address. But our courts have also recognized that even this wide latitude given to a closing address has limits. One limit is that it is not proper – except perhaps in the rarest of cases – for counsel to impugn the integrity of opposing counsel or even of opposing counsel’s client: see Landolfi, at paras. 79-80, 91.

[20] Thus, I think the trial judge was right to be concerned about the comments of Gilbert’s counsel set out above. They were improper. They exceeded the limits of zealous advocacy. They raised the risk the jury would focus on the character of York Fire’s counsel and his client instead of what the jury should focus on: the evidence.

[21] Faced with an improper closing jury address warranting intervention, a trial judge has a choice of three remedies: caution the jury by giving a correcting instruction, strike the jury and conduct the trial alone, or declare a mistrial.

[22] A mistrial is a remedy of last resort: R v Toutissani, 2007 ONCA 773 (CanLII), at para. 9. It results in extra costs and delays the resolution of the parties’ dispute. It should only be granted where, as the trial judge correctly said, a correcting instruction to the jury cannot cure the prejudice caused by counsel’s improper comments. And because the decision not to declare a mistrial is discretionary, it “attracts considerable deference from this court”: see Landolfi, at para. 99.

[23] The trial judge’s refusal to grant a mistrial was entirely reasonable. To intervene, allow the appeal, and order a new trial, we would have to be satisfied his refusal caused a substantial wrong or miscarriage of justice: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6). Here, the trial judge’s refusal did not cause any miscarriage of justice. The improper comments of Gilbert’s counsel were few and were not so serious or so prejudicial that they could not be addressed by an appropriate correcting instruction to the jury. Thus, appellate intervention in the exercise of the trial judge’s discretion would be entirely unjustified. I would not give effect to this ground of appeal.

II. Alternatively, did the trial judge err by failing to give a proper correcting instruction?

[24] Instead of ordering a mistrial, the trial judge gave a correcting instruction to the jury. York Fire submits that it did not go far enough because it did not condemn counsel’s comments. Instead, according to York Fire, the trial judge tacitly approved of those comments. I do not accept York Fire’s submission. The trial judge’s correcting instruction was fair. No condemnation of counsel’s comments was needed.

[25] In Landolfi, at paras. 105-6, Cronk J.A. discussed when in the proceedings a trial judge should give the correcting instruction and what it should say. A trial judge should give a correcting instruction right after the closing jury addresses or early in the charge to the jury. The trial judge in this case met that requirement. He gave his correcting instruction right at the beginning of his charge to the jury.

[26] Ideally, a correcting instruction should have four components. It should:

• be clear and unambiguous;

• point out to the jury the offending comments;

• explain that these comments are improper and why they are so; and

• instruct the jury to disregard the comments and base its findings and decision solely on the evidence.