Judge may properly make observations of fact to a jury

R. v Fry, 2011 BCCA 381 is a useful source for the proposition that a judge may properly suggest facts to a jury provided only that the judge is clear the jury is the ultimate trier of fact. The Court holds:


[70] To begin, the law is clear that a trial judge may express an opinion on an issue provided it is made clear to the jury that the opinion given is not to be taken as direction but as advice. In R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, Charron J. said at para. 27:

27. It is perhaps trite but nonetheless fundamental law that on a jury trial, it is for the judge to decide all questions of law and to direct the jury accordingly; but the jury, who must take its direction on the law from the judge, is the sole arbiter on the facts. The judge also has the duty, insofar as it is necessary, to assist the jury by reviewing the evidence as it relates to the issues in the case. The judge is also entitled to give an opinion on a question of fact and express it as strongly as the circumstances permit, so long as it is made clear to the jury that the opinion is given as advice and not as direction.

[71] In this case, it was made clear to the jury that they were the sole arbiters of the facts. At the beginning of his charge, the judge explained that while he would try to assist the jury by making some suggestions about how they might use the evidence, he also told them that, "at the end of the day, you, and you alone, must decide what the facts ... are ..." He further instructed the jury that "I might say something that you construe as my opinion on the question of whether Mr. Fry is guilty or not guilty. You must ignore my opinion. You are the sole judges of the guilt or innocence in this case".