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Criminal - Jury - Closing Arguments. R. v. Shaw
In R. v. Shaw (Ont CA, 2023) the Court of Appeal considered the propriety of the Crown's closing arguments, here in a jury trial:Analysis
[91] A trial is an adversarial process. Like defence counsel, Crown counsel are permitted to advance their positions forcefully to a jury: R. v. Daly (1992), 57 O.A.C. 70, at p. 76. However, there are limits to proper advocacy. A closing address by Crown counsel must be neither inflammatory nor unfair. Counsel must base their submissions on the evidence at trial. This means that counsel cannot supplement the trial evidence by effectively giving evidence in their closing submissions. Nor are counsel permitted to misstate the trial evidence. Further, counsel are not permitted to put before the jury in closing submissions matters which are based on counsel’s personal experience or observations, rather than the evidence at trial: R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 107; R. v. Pisani, 1970 CanLII 30 (SCC), [1971] S.C.R. 738, at p. 740; R. v. B.E.M., 2023 SCC 32.
[92] Not every improper address to a jury will require a corrective instruction. Not every improper address where no corrective instruction is given will render a trial unfair such that a retrial is required. Some deference is accorded to the assessment by a trial judge as to whether a corrective instruction is required. However, a trial judge has a duty to present the case fully and fairly to the jury. Where an improper address by Crown counsel bears directly on the central issue in a trial and no corrective instruction is given by the trial judge, it may render the trial unfair and require a new trial: Rose, at paras. 124-27; Pisani, at pp. 740-41. . R. v. Clyde
In R. v. Clyde (Ont CA, 2023) the Court of Appeal considered the SOR for an appellate challenge to a Crown's criminal closing:[16] As this court stated in R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 184, an appellate court must look at whether, “considered in the context of the trial as a whole, including evidence adduced and the positions advanced, the substance or manner of the Crown’s closing address has caused a substantial wrong or miscarriage of justice, including by prejudicing the accused’s right to a fair trial.” In this case, we are satisfied that the appellant’s right to a fair trial was compromised. . R. v. B.E.M.
In R. v. B.E.M. (SCC, 2023) the Supreme Court of Canada states briefly a useful practice point:It is common ground that, in closing submissions to the jury, Crown counsel should not have recounted an anecdote about a personal childhood memory that had no connection to the evidence (see Pisani v. The Queen, 1970 CanLII 30 (SCC), [1971] S.C.R. 738, at p. 740). Personal anecdotes have no place in closing submissions and are fundamentally at odds with the role of counsel, and particularly the role of Crown counsel (see Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16). ... . 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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