Criminal - Jury Charge
. R. v. Collins
In R. v. Collins (Ont CA, 2023) the Court of Appeal considered an appeal from murder and an attempted murder convictions. In this quote to court considers the adequacy of jury charges generally, but the need to be more specific in this attempted murder context:
 On appeal, the Crown relies on long-standing authority that requires appellate courts adopt a functional approach to reviewing jury instructions: see R. v. Daley, 2007 SCC 53,  3 S.C.R. 523 at paras. 30-31; R. v. Araya, 2015 SCC 11,  1 S.C.R. 581, at para. 39. The Crown submits that “[t]he question is not whether the instruction was perfect but whether it adequately prepared the jury for their adjudicative task. What matters is the general sense in which the words used must have conveyed, in all probability, to the mind of the jury.”. R. v. Pan
 This approach to review is not appropriate in the circumstances of this case. The jury should not have been left in any doubt about the mens rea for attempted murder. They had been told that they need not be unanimous on the two intents for murder, as long as they were all in agreement that one of the two states of mind had been proved. Moreover, for jurors, the differences between the mens rea for murder and the mens rea for attempted murder may well be counter-intuitive in that the mens rea for attempted murder is more exacting than they are for murder. This needed to be made explicit.
 For these reasons, the jury ought to have been instructed along the lines recommended in David Watt, Watt’s Manual of Jury Instructions, 2023 (Toronto: Thompson Reuters Canada Limited, 2023): “Attempted murder requires proof of a particular state of mind. Crown counsel must satisfy you beyond a reasonable doubt that when [the accused] did the things that amount to an attempt, [the accused] meant to kill [the victim]. Nothing less will do”: Final 239. In his commentary on this instruction, the author gives the following advice, at p. 796:
Where the indictment includes a count or counts of murder, in addition to one or more counts of attempted murder, it may be advisable to distinguish between the mental elements of each crime. Language like the following may make the point:
Unlike murder, where proof of either of two states of mind is sufficient, there is only one state of mind that will do for attempted murder: an intention to kill.
An instruction along these lines was required in this case. In my respectful view, without it, the charge was deficient.
In R. v. Pan (Ont CA, 2023) the Court of Appeal considered the deference accorded to a trial judge when deciding how to present closing submissions to the jury:
 The trial judge is in the best position to gauge the impact of closing submissions made by all counsel. The trial judge can assess the apparent significance, or otherwise, of any impugned remarks, and determine whether, and to what extent, correction or other remedial action may be required: R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 182. The trial judge did that in this case. There is no basis for this court to interfere.. R. v. Pan
 The decision of a trial judge on how to address jury issues, such as arose in this case, is entitled to significant deference from this court: R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 152. ...
 I accept that a standard of perfection would have had the trial judge use the words “for or against” with respect to all of the statements concerned since they all had exculpatory aspects. But the standard applied to jury instructions is not perfection: R. v. Khill, 2021 SCC 37, 409 C.C.C. (3d) 141, at para. 126.
In R. v. Pan (Ont CA, 2023) the Court of Appeal considers the test for when an 'included offence' will be left to the jury:
 The test for whether a trial judge must leave an included offence with the jury is the “air of reality” test. The test is described in detail by Doherty J.A. in R. v. Ronald, 2019 ONCA 971, including where he says, at para. 42:The court further analyses (paras 60-74) the problems in this case with the jury charge regarding 'included offences'.
There should be no instruction on potential liability for an included offence only when, on a consideration of the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on an included offence. [Citations omitted]. As this passage confirms, the air of reality test for an included offence requires that a jury, properly instructed, may be satisfied beyond a reasonable doubt of the elements of an included offence but not be so satisfied regarding the elements of the principal offence: see also R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 162.
. R. v. Pan
In R. v. Pan (Ont CA, 2023) the Court of Appeal refers to the judicial practice of providing 'decision trees' to the jury:
 The decision trees provided to the jury contained the same direction. The jury was not left with the option of separately considering the two counts. Generally, a jury must be instructed to consider their verdict on each count separately: R. v. Howe, (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44. There is, however, a narrow exception to that rule where the evidence is not logically separable: R. v. Pittiman, 2006 SCC 9,  1 S.C.R. 381, at para. 8.. R. v. Papasotiriou
In R. v. Papasotiriou (Ont CA, 2023) the Court of Appeal considers the SOR for appeal of a jury verdict:
(ii) The applicable law. R. v. Papasotiriou
 Jury verdicts, returned with a simple one or two-word statement – guilty; or not guilty – are recognized as the gold standard of criminal law verdicts. Juries do, however, make mistakes. This court’s power to review the reasonableness of a jury’s verdict provides an important safeguard against those mistakes. There are jury verdicts that, despite the absence of legal error or unfairness in the trial process, simply cannot stand on the evidence. Justice requires that an appellate court be able to intervene, set aside the conviction, and enter an acquittal, the only proper verdict on the evidence: see R. v. W.H., 2013 SCC 22,  2 S.C.R. 180, at para. 34.
 The court’s power to review the reasonableness of a jury’s guilty verdict under s. 683(1)(a)(i) of the Criminal Code is circumscribed. The question for the jury is not whether a properly instructed jury, acting reasonably, could have acquitted. The Court of Appeal can intervene only if satisfied that no properly instructed jury, acting judicially, could reasonably have found the appellant guilty: R. v. Biniaris, 2000 SCC 15,  1 S.C.R. 381, at para. 36; R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at paras. 74-80; and R. v. Arias-Jackson, 2007 SCC 52,  3 S.C.R. 514, at para. 2.
 In arriving at its reasonableness determination, this court reviews and, to a limited extent, reweighs the evidence, bringing to bear its judicial experience as applied to the kind of evidence that was before the jury: Biniaris, at para. 36. Judicial experience teaches that some kinds of evidence can be less reliable and probative than they might appear to a reasonably intelligent jury engaged in, what for the vast majority of jury members is a unique fact-finding experience: Biniaris, at para. 40.
 For example, in reviewing the reasonableness of a jury verdict based on eyewitness identification, an appellate court will bear in mind the well-established risk that apparently reliable eyewitness testimony given by a credible witness may well be wrong: R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at p. 673.
 The guilty verdicts returned by the jury at this trial depended on the jury’s assessment of a large body of circumstantial evidence. Circumstantial evidence is not inherently untrustworthy, and is in no way “second class” evidence. However, judicial experience with fact-finding based on circumstantial evidence demonstrates that juries faced with a large body of credible circumstantial evidence may be inclined to go beyond legitimate inferences to assumptions and speculation so as to fill in the gaps and create a coherent narrative from the evidence. Appellate courts have long acknowledged the risk that a jury may overreach in exercising its inference drawing powers. That knowledge informs an appellate court’s review of the reasonableness of a verdict based on circumstantial evidence: see R. v. Villaroman, 2016 SCC 33,  1 S.C.R. 1000, at paras. 26-29.
In R. v. Papasotiriou (Ont CA, 2023) the Court of Appeal considered jury charges regarding a party's strategic position:
(iii) Did the trial judge adequately relate the evidence to the position advanced on behalf of Mr. Ivezic?. R. v. Papasotiriou
 Mr. Ivezic submits that the jury instruction failed to adequately distill and present the complex evidence placed before the jury in a manner that would assure the jury understood the positions advanced by Mr. Ivezic and how the evidence related to those positions. The governing principles are well known and need not be repeated here: see e.g. R. v. Daley, 2007 SCC 53,  3 S.C.R. 523, at paras. 54-58; R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at paras. 9-19.
 This was a long trial. However, from Mr. Ivezic’s vantage point, the legal and factual issues were not particularly complex. The verdict with respect to Mr. Ivezic turned essentially on whether the Crown proved that he bludgeoned Mr. Lanteigne to the death in the foyer of the Ossington Avenue home. If the Crown proved that Mr. Ivezic was the killer, he was guilty of murder and, on the evidence in this case, in all probability guilty of first degree murder.
 The trial judge put the position of Mr. Ivezic to the jury in some detail. He reviewed the relevant evidence. He specifically instructed the jury that certain evidence was not admissible against Mr. Ivezic. He explained the defence position in relation to the alarm system in the Ossington Avenue home.
 There is no doubt that the trial judge could have said more about the evidence and its relationship to the positions advanced on behalf of Mr. Ivezic. It is equally true that the trial judge could have said more about the Crown’s case. Trial judges are not obliged to reargue the case for either side. Nor are trial judges obliged to address each and every piece of evidence that may have some significance to a position advanced by one of the parties at trial. The failure to say everything that could have been said does not constitute a reversible error: Daley, at paras. 55-58; R. v. Sanclemente, 2021 ONCA 906, 408 C.C.C. (3d) 429, at paras. 159-60; and R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577, at para. 233.
 The failure to object is, however, a consideration on appeal. Its importance will vary with the nature of the objection advanced for the first time on appeal. If the objection is a purely legal one, for example, a claim that the judge misstated the elements of the offence, the failure to object may have little significance. If, however, the objection raised for the first time on appeal is based on the manner in which the trial judge presented the defence, or related the evidence to their position, counsel’s failure to object at trial can become very important in assessing the adequacy of the instruction. No one knows better than counsel what is and is not important to the defence position, and whether that position has been properly put to the jury. Counsel’s failure to object, especially to the manner in which the defence is put to the jury, is particularly important when counsel, as in this case, had the opportunity to review the proposed instruction before it was given: R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at para. 52; R. v. Bouchard, 2013 ONCA 791, 305 C.C.C. (3d) 240, at paras. 36-40, aff’d 2014 SCC 64,  3 S.C.R. 283; and R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at paras. 88-89, leave to appeal refused,  S.C.C.A. No. 263.
In R. v. Papasotiriou (Ont CA, 2023) the Court of Appeal considered jury charges regarding the failure of a party to call witnesses:
 Trial judges will, as a rule, avoid telling jurors they may take into account the failure of either the Crown, or the defence, to call a certain witness. There are many variables at play which counsel will take into account when deciding whether to call a witness. Many of those variables are not known to the jury and some cannot possibly be shared with the jury: R. v. Zehr (1980), 1980 CanLII 2964 (ON CA), 54 C.C.C (2d) 65 (Ont. C.A.), at pp. 67-68.. R. v. Harty
 There is, however, no hard and fast rule that juries can never be told that they may take into account the failure of the Crown or the defence to call a witness when assessing the positions advanced by either the Crown or the defence. In some circumstances, where one side or the other fails to call an important witness, some comment by the trial judge about the effect of the failure to call that witness may be appropriate. The failure of the defence to call an important alibi witness is one situation in which trial judges have instructed juries that they may take into account the failure to call the alibi witness when assessing the credibility of the alibi: R. v. Rooke (1988), 1988 CanLII 2946 (BC CA), 40 C.C.C. (3d) 484 (B.C.C.A.), at pp. 517-18.
In R. v. Harty (Ont CA, 2023) the Court of Appeal stated a number of principles applicable to criminal jury charges:
 I address each in turn, mindful that trial judges are not held to a standard of perfection in crafting jury instructions: R. v. Daley, 2007 SCC 53, 226 C.C.C. (3d) 1, at para. 31. The Supreme Court has repeatedly reinforced that the appellate review of jury charges must recognize that “an accused is entitled to a jury that is properly — and not necessarily perfectly — instructed”: R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at para. 20. An appellate court must take “a functional approach when reviewing a jury charge by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole”. It is the substance of the charge that is determinative: Goforth, at para. 21. So long as the evidence is put to the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate: Daley, at para. 57.. R. v. Ebanks
 It is also relevant that defence counsel did not take issue with this portion of the charge during the pre-charge conference: R. v. J.B., 2019 ONCA 591, 378 C.C.C. (3d) 302, at para. 137.
 I do not accept that the trial judge’s use of the words “suggested” or “submitted” implies a weakness in the available inference. However, even if it does, as this court noted in R. v. Lawes (2006), 2006 CanLII 5443 (ON CA), 80 O.R. (3d) 192 (C.A.), at para. 59, leave to appeal refused,  S.C.C.A. No. 175, a fair and balanced charge does not require the trial judge to refrain from judicial commentary, even if that commentary is damaging to the accused. As Rouleau J.A. explained in Lawes, at para. 59, the question is whether the trial judge's comments, considered in the context of the charge as a whole, “were made in such a forceful way so as to overwhelm the jury or usurp its fact-finding function, and whether they deprived the appellant of a fair presentation of his case to the jury … such that the charge was unfair and unbalanced.”
 The Crown highlights that the closing address of defence counsel had reviewed the evidence in relation to the defence theory of the case prior to the trial judge’s charge. However, the appellant argues that it is insufficient for the trial judge to rely upon the closing address of defence counsel for this purpose, or to include a summary of the defence position in the charge that has been provided by counsel. As this court held in R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 23: “[A] summary from a partisan advocate is not a substitute for a review by an independent and neutral arbiter.”
 In this case, defence counsel specifically requested that the trial judge identify the key pieces of evidence relied upon by the defence and relate that evidence to the concept of reasonable doubt. The trial judge resisted the suggestion that he had to provide the jury with “a list” of the evidence that could raise a reasonable doubt. He told defence counsel that he would refer, in the course of the charge, to “the things that are of pertinence to the elements of the offence”.
 Although the appellant concedes that the trial judge “referred to most of the evidence relied upon by the defence at different points in the charge,” the appellant argues that, in some instances, he did so only to discount it. According to the appellant, at no time did the trial judge explain how that evidence could support the credibility of the appellant and Zakaria or undermine the credibility of McFarlane, or otherwise raise a reasonable doubt on the critical issues of the identity and intent of the shooter. The appellant submits that this rendered the charge unfair, and requires a new trial.
 I disagree that the trial judge’s instructions, read as a whole, failed to review the substantial parts of the evidence and relate them to the issues raised by the defence. While the trial judge declined to provide the jury with a “list” of evidence that could raise a reasonable doubt, as requested by the defence, trial judges are “vested with considerable latitude to determine how much or little of the evidence is to be reviewed in relation to the various elements of the charge”: J.B., at para. 134.
 The Crown submits that the trial judge’s review of the evidence was thorough, accurate, and in accordance with the jurisprudence.
 In my view, the instructions as a whole adequately relayed to the jury how the defence evidence, if believed, could support the defence’s overall theory of the case. The standard for review of a charge to the jury is adequacy, not perfection. I am not persuaded that the trial judge’s review of the defence evidence was inadequate.
In R. v. Ebanks (Ont CA, 2023) the Court of Appeal expounds on jury charges:
 A jury must be properly, not perfectly, instructed. Jury instructions are to be assessed functionally in the context of the trial as a whole, the question being whether they enabled the jury to decide the case in accordance with the legal principles and the evidence: R. v. Adan, 2019 ONCA 709, at paras. 61-63. Cautions about the use of eyewitness evidence must be related to the specific facts and issues in the case: R. v. Brown, 2007 ONCA 71, 221 O.A.C. 17, at paras. 17-18.. R. v. Bruzzese
In R. v. Bruzzese (Ont CA, 2023) the Court of Appeal considers the SOR to be applied to an appeal of a jury charge:
 Trial judges are not held to a standard of perfection in their crafting of jury charges. On appellate review, a functional approach is taken to the substance of the charge by examining errors in the context of the evidence, the entire charge, and the trial as a whole: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at para. 21; R. v. Hassanzada, 2016 ONCA 284, 130 O.R. (3d) 81, at para. 104; R. v. Nagy, 2023 ONCA 184, at para. 25. The question is whether the jury charge properly equipped the jurors to decide the case assigned to them: Hassanzada, at para. 105.. R. v. Bruzzese
 However, this court may intervene where the trial judge errs in law in the jury charge, including where a trial judge does not address sufficiently prejudicial or significantly inaccurate statements made by Crown counsel, or provides an erroneous instruction on a point of law. Such errors may justify a new trial where they cause a “substantial wrong or miscarriage of justice”: see e.g., R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, at paras. 38-39; R. v. P.C., 2015 ONCA 30, 321 C.C.C. (3d) 49, at paras. 44-50; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 66.
In R. v. Bruzzese (Ont CA, 2023) the Court of Appeal considered how a jury charge must connect the evidence available to the issue of reasonable doubt:
 Crown counsel submits that the jury would have understood the trial judge’s direction in the context of the trial judge’s general instruction about a reasonable doubt arising from the evidence or the lack of evidence, in para. 69, as follows:. R. v. Bruzzese
A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. The difficulty with this submission is that the trial judge did not tie the concept of reasonable doubt to the absence of forensic evidence linking the appellant to Mr. Manford. The charge must leave the jury with an understanding of how the evidence or lack of evidence relates to the issues that are left to the jury for their decision: R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 44; R. v. Megill, 2021 ONCA 253, 405 C.C.C. (3d) 477, at para. 39; Villaroman, at para. 28. However, in light of the trial judge’s clear direction about only having evidence as to what was found, the absence of any connection in the charge between the absence of forensic evidence and the concept of reasonable doubt makes it highly unlikely that the jury would have understood that it was open to them to consider the significance of the absence of forensic evidence as raising a reasonable doubt. At best, the jury would have been confused.
In R. v. Bruzzese (Ont CA, 2023) the Court of Appeal considered a judge's jury charge duties, here with respect to questionable comments in the Crown's closing submissions:
 Crown counsel submits that while the trial Crown’s use of the words “I’m just putting it out there” were unfortunate, the submission caused no harm to the defence because the jury would have understood that these were just the Crown’s submissions and they were not bound to accept them. Moreover, the lack of objection by defence counsel undercuts any allegation of trial unfairness.. R. v. Savage
 I disagree. While they do not have an “inflexible obligation” to correct every misstatement by counsel, trial judges have a duty, independent from any objection or lack of objection by counsel, to redress any prejudice to an accused that is caused by the Crown’s closing submission to the jury that “contains gross inaccuracies, seriously misstates the evidence or misuses the evidence in connection with the inferences to be drawn”: Rose, at para. 124; R. v. Clyke, 2021 ONCA 810, 158 O.R. (3d) 641, at para. 39; R. v. Jones, 2011 ONCA 584, 277 C.C.C. (3d) 143, at para. 38; R. v. Welsh, 2013 ONCA 190, 115 O.R. (3d) 81, at para. 201. Failure to do so amounts to an error of law: R. v. Romeo, 1991 CanLII 113 (SCC),  1 S.C.R. 86, at p. 95; Clause, at para. 38. Moreover, there was no “tactical” or other advantage in defence counsel not pursuing his initially expressed concern about the Crown’s submissions.
 Though counsel are entitled to a “fair degree of latitude” in closing submissions to the jury, there are clear limits on Crown advocacy: R. v. Boudreau, 2012 ONCA 830, at para. 15. The Crown “must not misstate the facts or the law”, “invite the jury to engage in speculation or express personal opinions” about the evidence, or “advert to any unproven facts”: Boudreau, at para. 16; R. v. Rose, 1998 CanLII 768 (SCC),  3 S.C.R. 262, at para 107.
 Particularly, in this case, there was a real risk that the jury would have accepted the Crown’s scientific misstatements as scientific fact. Courts have rightfully been wary about the possibility that juries will uncritically accept purported scientific evidence placed before them: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90, leave to appeal refused,  S.C.C.A. No. 125; Parliament v. Conley, 2021 ONCA 261, 155 O.R. (3d) 161, at para. 44, leave to appeal refused, [2021 S.C.C.A. No. 222]; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23,  2 S.C.R. 182, at para. 17. While this risk is stronger in the context of expert evidence, such a risk may also be present with purported scientific evidence inappropriately raised by the Crown, as the jury may still be more likely to defer to the apparent authority of the scientific misstatements when made by the Crown.
In R. v. Savage (Ont CA, 2023) the Court of Appeal considers when included offences are ruled out in a jury charge:
 I also note, as a general proposition, that included offences are only removed from the jury’s consideration when, on a consideration of the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on an included offence: R. v. Ronald, 2019 ONCA 971, at para. 42.
 In this case, there was a possibility that the jury might have had a reasonable doubt about planning and deliberation. They may have accepted that the appellant confessed to Ms. Kinney but then reject, or have a doubt about, her evidence about the details, specifically the evidence of planning and deliberation, leaving second degree murder an available verdict. Given the alleged friction between the appellant and the deceased, it was possible that the jury might have had a reasonable doubt whether the killing was planned or was the result of a spontaneous reaction arising from an argument between the two.
 In the circumstances of this case, the trial judge cannot be faulted for deciding to leave the included offences with the jury. After all, a trial judge has an obligation to leave all defences and verdicts reasonably available on the evidence with the jury for its consideration: R. v. Ali, 2021 ONCA 362, 156 O.R. (3d) 81, at para 74. There is no error in the trial judge’s conclusion to do so in this case.