Steering Committee on Justice Efficiencies and Access to the Justice System

3.4 Jury instructions

On the initiative of the Heads of Prosecution Conference, a Canada-wide analysis was made of 108 cases relating to murder, attempted murder and manslaughter giving rise to new trials between 2001 and 2005. The review revealed that 68% of the cases involved errors in the judge's instructions. [48]

A wide consensus has emerged on the excessive length and complexity of jury instructions and on a desire that model instructions be developed and formalized in order to reduce the numerous pitfalls that can lead to orders for a new trial.

The Supreme Court of Canada recently restated the required elements of a trial judge's final charge to the jury in Daley, [49] in which the Supreme Court assessed the accuracy and adequacy of the trial judge's instructions on the defence of voluntary intoxication:

  • "(1) instruction on the relevant legal issues, including the charges faced by the accused;

  • (2) an explanation of the theories of each side;

  • (3) a review of the salient facts which support the theories and case of each side;

  • (4) a review of the evidence relating to the law;

  • (5) a direction informing the jury they are the masters of the facts and it is for them to make the factual determinations;

  • (6) instruction about the burden of proof and presumption of innocence;

  • (7) the possible verdicts open to the jury; and

  • (8) the requirements of unanimity for reaching a verdict."

At the same time, the Court recalled the principles that should govern trial judges in the preparation of their instructions:

  • "The trial judge must set out in plain and understandable terms the law the jury must apply when assessing the facts. This is what is meant when it is said that the trial judge has an obligation to instruct on the relevant legal issues." (para. 32)

  • [...] "does not stand for the proposition that all facts upon which the defence relies must be reviewed by the judge in the charge." (para. 55)

  • "The pivotal question upon which the defence stands must be clearly presented to the jury's mind." (para. 55)

  • [...] "it is not the case that the trial judges must undertake an exhaustive review of the evidence. Such a review may in some cases serve to confuse a jury as to the central issue." (para. 56)

  • "Brevity in the jury charge is desired." (para. 56)

  • "The extent to which the evidence must be reviewed [...] will depend on each particular case." (para. 57)

  • "[T]he task of the trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language." (para. 57) [Emphasis added]

3.4.1 Model instructions

It is no longer necessary to demonstrate the merits of model instructions explaining the general legal principles relating to reasonable doubt, contradictory evidence or requirements for the application of a particular defence, etc. The Supreme Court of Canada itself recommends the use of model instructions, which it has had the opportunity to endorse. [50] Using those directives in the final charge to the jury will often remedy problems in other parts of the instructions where the judge reviews the evidence in relation to the law. The members of the Steering Committee promptly agreed that the work that has already been carried out in this respect, in particular by the Canadian Judicial Council, should be encouraged.

The question remaining is that of the advisability of formalizing the instructions by making them mandatory, which probably hinges on the feasibility of a procedure for doing so. The issue of the appropriate vehicle or mechanism for making model jury charges mandatory is indeed problematic.

The vehicle should be sufficiently flexible to allow the models to be amended quickly should there be a change in the state of the law. It becomes immediately apparent that it would not be advisable to have them prescribed directly by the Criminal Code.

Should they be prescribed in a regulation made under an enabling provision in the Criminal Code? Prepublication rules would then allow consideration of comments from bar societies and defence counsel associations. The enabling provision could distinguish instructions that have been endorsed by the Supreme Court of Canada from the others. A process involving the prior opinion of a committee of representatives from the judiciary, Crown prosecutors and defence counsel could also be contemplated for the latter instructions. Some have suggested providing for a process for endorsement of those instructions by the court of appeal, which would offer a forum for debating the content of the instructions. But that approach raises other issues. Should each provincial appeal court endorse the model instructions? Would that result in variances in the instructions in each province? Who would be invited to take part in the debate? Would it be preferable to have them endorsed by a reference to the Supreme Court of Canada?

Another option would be to leave it to the superior courts of the provinces to integrate them uniformly into their respective rules of court and, if necessary, amend sections 482 or 482.1 of the Criminal Code accordingly. Unlike the regulatory option, making rules of court does not involve a formal consultation of Crown prosecutors and defence lawyers. Then again, superior court judges could be required to decide the constitutional validity of instructions they have themselves established. Moreover, by what proceedings could a model instruction be contested when it is constitutionally valid but reverses a common law rule in favour of the Crown or the accused? The option of making rules of court under s. 482 or 482.1 Cr.C. should not be preferred. Such rules have not traditionally been intended to settle substantive issues of this kind. [51]

In view of the preceding, the following options were discussed within the Steering Committee as to the appropriate vehicle for implementing model instructions:

Make a more thorough examination of the advisability and feasibility of formalizing model instructions in a regulation, providing for the possibility of a procedure for a prior reference to the Supreme Court of Canada as to instructions that have not yet been clearly endorsed by the Supreme Court. If applicable, a list should be compiled of instructions that may be considered as endorsed by the Supreme Court and be dealt with in the first stage of formalizing model instructions.

OR

The Canadian Judicial Council should be encouraged to continue its work on the development of model jury instructions and to give consideration to determining the best process for promoting the use of and compliance with model instructions (training, more formal judicial guidelines, regulations, etc.).

Discussion

The assessment of the advisability of formalizing the model instructions in a regulation must take into account the danger that non-conformity with the directives would be fatal since failure to follow a statutorily mandated procedure leaves little room for remedy by appeal courts. Unless it is expressly provided that non-compliance is not necessarily fatal. But formalizing model instructions serves no purpose if there is no consequence for non-compliance. A new debate on major and minor non-compliance issues should not be created. The drawback could be lessened, or even eliminated, by providing that the model directives must be given to the jurors in writing. [52]

More formal instructions by the Judicial Council of Canada, if that option were available, would definitely offer greater flexibility regarding the evolution of the law than the other two options.

In view of the relatively small number of model instructions that have been clearly endorsed by the Supreme Court in relation to the number of instructions a judge may use in the course of a trial, it is clear that many “new” model instructions would require a reference to the Supreme Court before they could be formalized. The process of referring a question to the Supreme Court, while available, does not play a major role in the Canadian legal tradition. This is mainly the result of the difficulty in arguing matters of law in the absence of an appropriate factual basis. As to the instructions that have been endorsed by the Supreme Court, their integration into routine practice is perhaps more a matter of training.

In light of the preceding, the members of the Steering Committee finally agreed to wait for the Canadian Judicial Council to complete its work on the development of model jury instructions and to give consideration to determining the best process for promoting the work to the judges.

Recommendation

12. The Canadian Judicial Council should be encouraged to continue its work on the development of model jury instructions and to give consideration to determining the best process for promoting the use of and compliance with model instructions (training, more formal judicial guidelines, regulations, etc.).

3.4.2 Other judge-jury relations

Apart from the judge's final charge to the jury, numerous other issues that frequently arise in the interactions between the judge and the jury during deliberations are the subject of appeal proceedings and give rise to orders for a new trial.

Among those issues are the conditions or the procedure to follow for:

  • responding to requests to rehear the testimony of a witness or a statement: should such requests be met? Can the jury ask to rehear all the testimony? Can a part of the testimony of one witness or one statement be reheard or must it be reheard in its entirety? If yes, must the judge remind the jury that it must consider the remainder of the evidence? Should the rehearing take place in the courtroom or in the jury room? [53]
  • investigating allegations of misconduct or partiality within the jury during the trial or deliberations: should the juror concerned be questioned? If yes, in the presence of the other jurors or not? In private or in open court? In the presence of the parties or not? Can the parties question the juror directly? Should the judge give them the opportunity to make submissions? Distinction between matters that are intrinsic to jury deliberations, and therefore governed by deliberation secrecy (s. 649 Cr.C.), and those that extrinsic to the deliberations? [54]
  • allowing rehearing of arguments, giving a transcript of the arguments to the jury or asking counsel to produce a written summary of their respective theories for handing to the jury: should such requests be met? [55] If yes, can the arguments of only one of the parties requested by the jury be provided or must the arguments of both parties be provided?[56]
  • giving a transcript or written copy of the instructions to the jury: is the judge required to provide a transcript of the judge's jury instructions on the request of the jury? [57] Can the request be specific or can it be general?[58]
  • giving the text of the offences to the jury: what precautions should the jury take when part of the provision has already been declared unconstitutional? [59]
  • answering the questions of the jury: the steps to be followed by the judge and the distinction between a substantive question, which must be answered in open court in the presence of the accused, and an administrative question, which can be settled directly between the judge and the jurors. [60] Can questions be addressed to witnesses, and, if so, how (can the judge invite jurors to address questions to witnesses? Can the jurors ask questions during the examination of a party or only when the party has completed the examination? Should the questions be submitted to the judge beforehand? Should the debate on the admissibility of a question be carried on in the absence of the jury?[61]

Since grounds for appeal relating to jury instructions are often accompanied or completed by grounds relating to the above issues, it could be advisable to address them in the same manner as instructions. Once these relatively confined issues would be identified, the Steering Committee considered whether they should be addressed by further technical additions to the criminal procedure or if they should rather be the subject of judicial guidelines from the Canadian Judicial Council.

Discussion

Responding to all these issues through legislation in a manner that would fully address a multitude of special circumstances that can emerge in a trial appears difficult. And given the likelihood that the response to the issues will frequently affect the right of the accused to a fair trial, legislative action accordingly becomes substantially more complex.

Since some of these issues have not yet been the subject of Supreme Court guidelines, legislation is perhaps not the best response to changes or developments in the case law. Furthermore, with codification of procedural rules, there is a risk that non-compliance could become a deciding issue on appeal. In light of the preceding, the Steering Committee deems that it would be advisable to address those issues by means of judicial guidelines.

Recommendation

13. The Canadian Judicial Council should be encouraged to develop judicial guidelines on issues that arise in judge-jury relations, more specifically in relation to:

  • requests for re-hearing of testimony or statements;
  • allegations of misconduct or partiality within the jury during the trial or deliberations;
  • re-hearing arguments and/or obtaining a transcript of the parties' arguments to the jury or written arguments explaining their respective theories;
  • providing the jury with a transcript or a copy of the jury instructions;
  • processing questions by the jury.

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