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Criminal - Jury - Closing Arguments

. R. v. Abdullahi

In R. v. Abdullahi (SCC, 2023) the Supreme Court of Canada considered the role and function of counsel's closing arguments in a criminal jury trial, here in a case where the SCC reviewed the adequacy of jury charges:
(ii) Closing Arguments of Counsel

[63] Like the evidence, the closing arguments of counsel form part of the overall circumstances of the trial; in some circumstances, these can inform the sufficiency of the judge’s instructions. Notably, the closing arguments of counsel can be relevant to whether a contingent instruction was required. For example, in Khill, defence counsel’s repeated emphasis on the final “split second” of the incident supported the need for the trial judge to provide a specific instruction on the accused’s “role in the incident” in his instruction on self-defence (paras. 134-35). Or, if counsel makes a problematic statement in closing argument, it can be incumbent on the judge to correct this and to admonish the jury to disregard counsel’s statements; a failure to do so may amount to an error (R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at paras. 63 and 126-27).

[64] This Court has stated that counsel’s closing arguments may “fill gaps” in the judge’s charge (Daley, at para. 58). However, this statement must be understood in light of the nature of the alleged error. Appellate courts have viewed counsel’s closing arguments as capable of filling gaps in the judge’s review of the evidence (see, e.g., R. v. Connors, 2007 NLCA 55, 269 Nfld. & P.E.I.R. 179, at para. 15; R. v. Smith, 2010 BCCA 35, 282 B.C.A.C. 145, at paras. 41 and 46; R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d) 236, at para. 81). This is because judges are not required to review in detail the whole of the evidence; they are required only to review critical parts of the evidence and to ensure that the jury understands the significance of the evidence having regard to the issues in the case (Daley, at paras. 56-57; R. v. P.J.B., 2012 ONCA 730, 298 O.A.C. 267, at para. 47).

[65] I agree with the intervener, the Criminal Lawyers’ Association of Ontario, that counsel’s closing arguments cannot replace an accurate and sufficient instruction on the law. The fact that counsel might have explained a legal principle properly will not correct the trial judge’s failure to do so (Avetysan, at paras. 23-24; R. v. Gray, 2012 ABCA 51, 522 A.R. 374, at para. 19). Juries are invariably told to take the law from the judge and not from counsel or other sources. Such an instruction reflects the trial judge’s duty to instruct the jury on the law. It also prevents the jury from cobbling together disparate and potentially inconsistent explanations of the law. Reliance on multiple sources might well not only confuse juries but also frustrate appellate review of a jury instruction for legal error, as appellate courts would not know which legal principles the jury applied.


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