Rolled-up instruction in murder cases

Juries determining the mental element in murder cases must consider the evidence as a whole and not piece by piece. So as to ensure this judges routinely instruct jurors to consider the cumulative effect of the evidence in determining whether the required fault element has been established.

A "rolled-up" instruction must remind jurors that they must consider the cumulative effect of all the evidence relevant to an accused's state of mind in deciding whether the prosecutor has proven that state of mind beyond reasonable doubt.

Today's decision in R. v. Flores, 2011 ONCA 155 holds:

[73]         As a prophylactic against a compartmentalized approach to the evidence, we require trial judges to remind jurors, in cases like this, that they should consider the cumulative effect of all relevant evidence in determining whether the prosecution has proven beyond a reasonable doubt either of the fault elements required to make an unlawful killing murder: R. v. Cudjoe (2009), 251 O.A.C. 163, at para. 104; and R. v. Fraser (2001), 56 O.R. (3d) 161 (C.A.), at para. 25, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 11. Although jurors may reject each discrete defence, justification or excuse, they may have a reasonable doubt about the state of mind required for murder on the basis of the cumulative effect of the whole of the evidence: Fraser at para. 25.

[74]         We do not mandate a specific combination of words[1] to bring home to jurors their obligation to consider the cumulative effect of the whole of the evidence in determining the adequacy of the prosecutor's proof of the fault element and murder, despite their rejection of the discrete defences, justifications or excuses to which the same evidence may also be relevant.

[75]         In the end, whether by express words or otherwise, what jurors must understand is that, in deciding whether the prosecutor has proven either state of mind essential for an unlawful killing to be murder, they must consider all the evidence that sheds light on the accused's state of mind at the time of the killing, even if they have rejected the specific defence, justification or excuse to which that evidence is also relevant: Cudjoe at para. 109.

[76]         An integral part of any "rolled-up" instruction is a description, whether by content or specific detail, of the evidence to which the instruction relates.  Often, a description by subject-matter will be sufficient:  Cudjoe at para. 112.  A complete reiteration of evidence earlier rehearsed in connection with a discrete defence is not necessary, and probably unhelpful: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 14.