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Canadian Criminal Procedure and Practice/Trials/Juries/Jury Instructions

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General Principles

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An accused person is "entitled to a properly, not perfectly, instructed jury".[1]

It is through the "instructions that the jury must appreciate the value and effect of the evidence in the context of the legal issues."[2]

The instructions must give the jury a clear understanding of:[3]

  1. the factual issues to be resolved;
  2. the legal principles governing the factual issues and the evidence adduced at trial;
  3. the positions of the parties; and
  4. the evidence relevant to the positions of the parties on the issues.

A jury charge must be "even-handed" and the instructions "fair and balanced." At no time should sides be taken or editorial comments made.[4]

A judge may never direct the jury to find an element proven in light of the evidence at trial. This error cannot be cured by s. 686(1)(b)(iii).[5]

  1. ↑ R. v. P.J.B., 2012 ONCA 730 (CanLII) at para 41 citing R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 2
  2. ↑ R. v. Karaibrahimovic 2002 ABCA 102 (CanLII), (2002), 164 C.C.C. (3d) 431 at para. 33
  3. ↑ R. v. P.J.B., 2012 ONCA 730 (CanLII) at para. 42 citing R v MacKinnon, 1999 CanLII 1723 (ONCA) at para. 27
  4. ↑ R v Largie [2010] OJ No 3384 (ONCA)
  5. ↑ R. v. Tehrankari, 2012 ONCA 718 (CanLII)

Model Instruction

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Model jury instructions are meant to be a sample from which adjustments can be made to craft appropriate jury instructions for a particular case.[1]

  1. ↑ e.g. R. v. McNeil 2006 CanLII 33663 (ON CA), (2006), 84 O.R. (3d) 125 (C.A.), at para. 21;
    R. v. Rowe, 2011 ONCA 753 at 62

Pre-Charge Conference

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Before beginning deliberations, the judge will hold a pre-charge conference where the parties will provide input on the form of the charge.

Pre-charge conference should be held in the presence of the accused and on the court record.[1]

  1. ↑ R v Simon 2010 ONCA 754

Specific Instructions

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Standards of Proof

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Where the jury asks a question clarifying the meaning of reasonable doubt. The judge should not simply reiterate the standard of proof instructions, but should explain the difference of the standard of "balance of probabilities" and "proof beyond all doubt".[1]

  1. ↑ R. v. Layton, 2008 MBCA 118 (CanLII)

Credibility

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The judge does not need to give a WD instruction or its functional equivalent in relation to every piece of evidence relied upon by the accused.[1]

  1. ↑ R. v. Simon, 2010 ONCA 754 at paras. 82-84, 89-90
    R. v. B.D., 2011 ONCA 51 (CanLII) at para. 114
    R. v. M.R. 2005 CanLII 5845 (ON CA), (2005), 195 C.C.C. (3d) 26 (Ont. C.A.) at para. 46
    R. v. Chenier 2006 CanLII 3560 (ON CA), (2006), 205 C.C.C. (3d) 333 (Ont. C.A.), at paras. 374-375

Reviewing the Evidence

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In giving the instructions, the judge must relate the evidence heard at trial to the issues raised by defence. This involves first reviewing the evidence and then relating it to the position of the defence so that the jury understand the "value and effect" of the evidence. [1] A judge will often indicate which parts of the evidence supports each parties position on particular issues.[2]

There is no obligation to review all of the evidence at trial.[3] Also a failure to mention items of evidence will not be fatal where the omission did not constitute the sole evidentiary foundation for a defence.[4]


  1. ↑ PJB at para. 44
  2. ↑ PJB at para. 44
  3. ↑ R. v. MacKinnon 1999 CanLII 1723 (ON CA)
    PJB at para. 45
    R. v. Daley, 2007 SCC 53 (CanLII), [2007] 3 S.C.R. 523, at paras. 55-56
  4. ↑ R. v. Demeter (1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436 cited in PJB at para. 46

Jury Warning

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A judge is permitted to provide specific warnings to the jury on certain issues of which they may not be aware of their significance.[1] Warnings or cautions are not given because the jury is seen an uninformed or unintelligent, but rather to give them knowledge from judicial experience. The warning concerns knowledge beyond the obvious that they can discern themselves. The purpose is to “help the jury appreciate the peculiarly concerning qualities of evidence which must be evaluated with particular caution in light of those concerns”[2]


  1. ↑ R. v. Sutherland, 2011 ABCA 319 at 7
  2. ↑ see e.g. R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, 267 C.C.C. (3d) 453, 2011 SCC 13 at paras. 55 to 60 and para. 87 (Rothstein J), paras. 105 to 107 and para. 130 (Charron J) and para. 185 (Binnie J).

Limited Purpose Evidence

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Generally, evidence of limited admissibility must be accompanied by specific jury instructions that satsify the following:[1]

  • identify the evidence to which they apply;
  • explain the permitted use of the evidence; and
  • explain the prohibited use of the evidence.

This includes evidence admitted such as bad character evidence.

Failure to give the instructions is an error of law.[2] The issue for the appellate court on such an error is whether "any convictions ... can be sustained despite the error of law. Convictions may be upheld providing the error did not cause a substantial wrong or miscarriage of justice".[3]

  1. ↑ R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 107
  2. ↑ R. v. M.T., 2012 ONCA 511 (CanLII) at para. 84
  3. ↑ R. v. Van, 2009 SCC 22 (CanLII), 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34
    R. v. M.T. 2012 ONCA 511 at para. 85
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To illustrate the frailties of identification evidence, a judge should not instruct a jury to close their eyes and attempt to accurately picture the person next to them.[1]

  1. ↑ R. v. Francis, 2002 CanLII 41495 (ON CA)

Defences

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Only where there is an "air of reality" that the evidence can make out the requirements of the defence. The evidential foundation does not exist where "its only constituent elements are of a tenuous, trifling, insignificant or manifestly unsubstantive nature: there must be evidence in the record upon which a properly instructed jury, acting judicially, could entertain a reasonable doubt as to the defence that has been raised."[1]Or to put it another way, the test does not consider whether a defence is likely, somewhat likely, unlikely, or very likely. It only considers whether "there is some evidence that puts the defence in play".[2]

An accused "should not lightly be deprived of the chance to present the defence they are relying upon, and the trier of fact can deal with the deficiencies when examining the defences of their merit.”[3]

  1. ↑ R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 at para. 56
  2. ↑ R v Fontaine, 2004 SCC 27, [2004] 1 SCR 702
  3. ↑ Lee Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law Inc., 2011) at page 546

Instructions During Deliberations

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Exhortation

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The judge must be careful and balanced during the exhortation to a deadlocked jury. The jury will likely be frustrated and disgruntled and so must be handled appropriately.[1]

The judge should not do anything that may treat particular jurors as misunderstood or that pits one jurors against the others. [2]

It is not relevant to examine whether the jurors were affected by any of the instructions of the judge.[3]

  1. ↑ R. v. R.M.G., 1996 CanLII 176 (SCC), [1996] 3 S.C.R. 362, per Cory J. at para. 15
  2. ↑ R. v. Vivian, 2012 ONCA 324 at 47
  3. ↑ at para. 61

Jury Questions

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During the deliberations of a jury, they are permitted to submit questions to the court and counsel. Jury questions indicate some of the problems the jurors are having in deliberating and seek help from the trial judge.[1]

Where a jury question is unclear, the judge should seek clarification before attempting to provide an answer.[2]

Jury questions must be answered "clearly, correctly and comprehensively".[3]

However, the response should be timely as well. Delay without instructions the jury to cease deliberations where the question reflects a misunderstanding is open to risk of corrupting the verdict.[4]

A judge should not communicate with the jury by sending notes with unsolicited information without the input on counsel.[5]

  1. ↑ R. v. M.T., 2012 ONCA 511 (CanLII) at para. 114 (questions "indicate that that at least some jurors are having a problem with an issue in the case.")
    R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 759-760
    R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at pp. 528-529
  2. ↑ R. v. Shannon, 2011 BCCA 270 (CanLII)
  3. ↑ R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 759-760
    R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521 at 528, 530
    R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540, at para. 20
  4. ↑ R. v. Ellis, 2013 ONCA 9 (CanLII) at para. 42
  5. ↑ R. v. Edwards, 2002 CanLII 41587 (ON CA)

Failing to Answer Jury Questions

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Where a jury asks a question and then withdraws before it is answered by the judge will not render the verdict invalid. The judge need not answer the question for the jury.[1]

A jury may withdraw a question simply by announcing it is ready to give a verdict.[2]

It may be recommended that once the jury is ready despite not having the question answered, that the court canvas both counsel and the jury about whether the question should still be answered.[3]

  1. ↑ R v Sit (1989) 47 CCC (3d) 45 (ONCA) at pp. 57-58
    see also R. v. Ellis, 2013 ONCA 9 (CanLII)
  2. ↑ R. v. Lavoie, (1990), 107 N.B.R. (2d) 181 (N.B.C.A.)
  3. ↑ R. v. Jones, 2011 ONCA 584 (CanLII) at para. 55, 56

Recharge of Jury

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The answer may result in a "recharge" of the jury. These recharges "must be correct and comprehensive no matter how exemplary the original charge may have been".[1]

An error in recharge cannot be forgiven simply because the original charge was correct.[2] In fact, the more time that passes between the original charge and recharge, the greater imperative that the recharge be "correct and comprehensive".[3]

  1. ↑ R v S. (W.D.), 1994 CanLII 76 at pp. 530-531
  2. ↑ R v S. (W.D.), 1994 CanLII 76 at pp. 530-531
  3. ↑ R v S. (W.D.) 1994 CanLII 76 at p. 531
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