Criminal jury addresses can be problematic especially if defence counsel wishes to refer to the dangers of a wrongful conviction. Recently the Court in R. v. Horan, 2008 ONCA 589 set out guidelines for what can, and cannot, be said in such addresses. The Court held:
1. A passing reference to the potential of wrongful conviction in any criminal case is not beyond the bounds of legitimate argument. For example, reminding the jury that they stand between the accused and the state to prevent the conviction of an innocent accused or that their responsibility is to protect persons from the possibility of a wrongful conviction is well within the bounds of legitimate argument.
2. Ordinarily, a reference to the history in Canada of demonstrated wrongful convictions will not assist the jury in their task. The jury is to reach its verdict on the evidence adduced in the case before them. In particular, defence counsel should not overstate the problem of wrongful convictions. For example, there is nothing in our legal history to support the suggestion that there has been a “parade” of wrongful convictions as a result of complaints by drug users, which essentially was the submission made by defence counsel in this case.
3. Counsel ought not to refer to specific cases such as the wrongful convictions of Guy Paul Morin or Thomas Sophonow or attempt to draw parallels with those cases. The circumstances that led to the miscarriages of justice in those cases were complex and multifaceted. Those circumstances will almost inevitably be quite different from the circumstances of the case the jury must deal with. For example, the wrongful convictions in Morin and Sophonow were the result, in part, of a particular type of unreliable witness, jailhouse informants. To refer to specific cases by name simply risks introducing irrelevant considerations and may draw counsel into giving evidence.
4. In eyewitness identification cases it is not improper for defence counsel to refer to the fact that there have been wrongful convictions because of mistaken eyewitness evidence.
Today’s decision in R. v. Lane, 2008 ONCA 841 applies those rules and, arguably, takes them further. It will be a rare case where a reference to the history wrongful convictions in Canada is proper:
[88] The appellant raised several other grounds of appeal with respect to the conviction upon which we did not find it necessary to call upon Crown counsel to respond. I wish, however, to comment on one of those grounds. In his closing address, defence counsel in an exhibition of unacceptable rhetorical excess, told the jury, “the penitentiaries of this country are littered with innocent people who are in jail solely because of shoddy or corrupt police investigations.” In response to counsel’s remarks, the trial judge commented in his final instructions on miscarriages of justice involving the prosecution of Guy Paul Morin, Donald Marshall and David Milgaard. This is what he said:
You are required by your oath of office to consider the evidence in this case, the submissions of counsel and my instructions to you. If, after diligently doing so, you are satisfied beyond a reasonable doubt of the guilt of the defendant, you must return a verdict of guilty against him. To decline to return a verdict of guilty if you are satisfied beyond a reasonable doubt of the guilty of the defendant because of the miscarriages of justice in other cases would be an improper step on your part.
[89] This court in R. v. Horan 2008 ONCA 589, held that reference in a jury address to a parade of wrongful convictions outside a relevant context such as eye-witness identification risked inviting the jury to take into account irrelevant and imaginary dangers. Further “the invitation to avoid convicting so as to not add to the list of wrongfully convicted is a form of intimidation that can be compared to the timid jury instruction”: see para. 67. Those comments are of particular application to this case. The trial judge’s instruction was necessary and free of legal error.
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