Unnecessary complexity of the jury charge can constitute a stand alone basis for the reversal of the verdicts?

R. v. Rowe, 2011 ONCA 753 is an interesting case dealing with the proper treatment of an unsavory witness who is both inculpatory and exculpatory. The case also considers, without finally deciding, if an overly complex jury charge can ground an appeal. The Court holds simpler and more direct charges are necessary. Quaere -- if trial judges do follow this guidance will they be risking an appeal based on 'leaving out' something? The Court holds:

[52]         I would allow the appeal for the reasons set out above.  I will, however, consider one further argument made by the appellant because it raises an important matter of general concern in the conduct of criminal jury trials.  This was a factually and legally straightforward, but by no means easy, case.  The jury instructions were lengthy and, according to the trial judge, "tedious".  Counsel for the appellant submitted that the charge was unnecessarily complex and contained superfluous instructions that must have confused the jury and distracted it from the real issues in the case.  Counsel contended that the unnecessary complexity of the jury charge constituted a stand alone basis for the reversal of the verdicts:  see R. v. Hebert, [1996] 2 S.C.R. 272, at para. 13.

[53]         As I would allow the appeal on the grounds set out above, I need not decide the ultimate merits of this submission.  However, and with respect to the trial judge who clearly worked very hard on her jury instructions, the charge was unnecessarily complex and confusing. 

[54]         There are two explanations for the confusion and complexity.  First, I think the indictment contained counts which, by the end of the trial, were unnecessary to a fair and full adjudication of the merits.  There were five counts in the indictment.  The trial judge was required to deal with each count and with each element of the offence described in each count.  This necessarily made the jury instruction longer, more complicated, repetitive and inherently confusing. 

[55]         I do not fault the Crown for placing the five charges in the indictment, or proceeding through the trial with those charges.  In my view, however, the Crown should have taken a hard look at the need to instruct the jury on all counts and require that it return verdicts on all counts.  Counts two and three related to the use of pepper spray against Mr. Al-Ali.  One of the two, either one, was redundant.  I see no disadvantage to the Crown had it asked for a verdict on only one of those two counts and relieved the trial judge of her obligation to address the second.[2] 

[56]         I also see no need from the Crown's perspective for a verdict on the unlawful confinement charge.  There was no chance that a reasonable jury would convict of unlawful confinement if it did not convict on the robbery charge.  If the jury convicted of robbery, an additional conviction for unlawful confinement, while virtually inevitable, would add nothing to the case.  A conviction on the unlawful confinement count was not necessary to accurately reflect the nature and extent of the appellant's criminal culpability, or to permit the imposition of an appropriate penalty.  Apart from adding another line to the appellant's criminal record, I see no purpose served by the unlawful confinement charge.    

[57]         I emphasize that I am not suggesting that a trial judge can unilaterally decide to take counts in an indictment away from a jury as a means of facilitating the jury's deliberations.  Subject to the judge's power to order severance, and assuming there is an evidentiary basis for the allegation in each count in the indictment, it is up to the Crown to decide whether a charge in the indictment should go to the jury for a verdict. 

[58]         Crown counsel in the exercise of his or her responsibility to further the due administration of justice should consider whether multiple count indictments can be trimmed before the case goes to the jury without compromising the case the Crown seeks to have determined by the jury.  The possibility of not requiring verdicts on all counts in a multiple count indictment should be canvassed with counsel as part of the pre-charge conference.  It is self-evident that the fewer the charges a jury must consider, the less likely it is that confusion will intrude upon the jury's deliberation, or that the trial judge will fall into legal error.  Jury confusion can lead to a hung jury and legal error can necessitate a new trial.  Neither result serves the Crown's interest in the due administration of justice.  A properly trimmed indictment serves everyone's interests in the criminal process. 

[59]         The second source of unnecessary complexity in the jury instruction flows from what this court has described as "over-charging":  see R. v. Pintar (1996), 30 O.R. (3d) 483 (C.A.), at p. 493.  In Pintar, the appellant complained that the self-defence instruction was so complex as to be incomprehensible.  Moldaver J.A. said:

Unquestionably, trial judges do encounter difficulties in explaining the self-defence provisions to juries for the reasons expressed by the Chief Justice.  In my opinion, these difficulties are compounded by the standards which appellate courts have imposed, or are perceived to have imposed, when assessing the adequacy of self-defence instructions.  Trial judges are often heard to say that 90 per cent of their legal instruction on self-defence is for the Court of Appeal and 10 per cent for the jury.  Expressed somewhat differently, fear of under-charging has led to over-charging. 

Ironically, many trial judges have taken to leaving multiple self-defence provisions with the jury as a means of defending themselves against appellate assault.  This phenomenon, which I describe as "over-charging", has itself come under attack....

[60]         My former colleague's comments were directed at the law of self-defence, a notoriously complicated area of the criminal law.  His comments, however, have more general application.  Like him, I think that fear of appellate reversal is one of the causes of "over-charging".  Trial judges perceive, correctly I think, that legally accurate instructions that are superfluous will seldom lead to reversal, while a failure to instruct on an issue that may have been on the periphery of the trial, but has become central on the appeal, will lead to reversal and a new trial.  Instructions on anything and everything that have any possible relevance are seen as the best defence against the hindsight inherent in appellate review.

[61]         There is a second cause of "over-charging" that is the unfortunate by-product of a recent and beneficial development in the conduct of criminal jury trials.  Counsel and trial judges now engage in detailed pre-charge conferences in which proposed jury instructions are thoroughly vetted.  That vetting generates a written version of the jury instructions that is provided to counsel and to the jurors.  The pre-charge discussions often centre around the model jury instructions found in Watt's Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005).  Those instructions provide valuable assistance to judges and counsel in the formulation of appropriate jury instructions:  see R. v. Banwait, 2010 ONCA 869, 265 C.C.C. (3d) 201, rev'd 2011 SCC 55, at para. 173, MacPherson J.A., dissenting. 

[62]         The model instructions are not, however, a "one-size-fits-all" product to be used without modification or variation:  see R. v. McNeil (2006), 84 O.R. (3d) 125 (C.A.), at para. 21.  Watt J.A., author of the model instructions, put it this way in Helping Jurors Understand (Toronto: Thomson Carswell, 2007), at p. 82:

A specimen is a sample.  A specimen instruction is a sample instruction about its subject-matter.  Specimen instructions do not and cannot be expected to provide legally accurate directions for every set of circumstances that fall within their reach.  There are no one-size-fits-all jury instructions.  At best, specimen instructions provide the basic building blocks for finals and other instructions.  The twists and turns of individual cases will dictate the nature and extent of modification required to ensure legal accuracy. [Emphasis in original.]

[63]         In keeping with the purpose of the model instructions, it does not follow that because an accused is charged with robbery it is either necessary or appropriate to read to the jury all of the model instructions referable to the offence of robbery.  Certainly, those model instructions will provide a valuable starting point for discussions between counsel and the trial judge as to the appropriate instructions.  Those discussions should tailor the model instructions to the specific circumstances.  Unfortunately in the present case that tailoring did not occur.  Large parts of the model instructions were used without modification and without regard to the specifics of the case.

[64]         Two examples from the trial judge's instructions make the point that the model instructions must be tailored to the specifics of the case.  The trial judge spent five pages instructing the jury on the law of theft.  She read most of the model jury instructions on the crime of theft to the jury.  On the evidence, however, the trial judge had only to tell the jury that, as a matter of law, a theft occurred if Mr. Al-Ali's assailants took anything from his pockets.  On the evidence adduced in this case, it was unnecessary to make any reference to concepts such as colour of right, and the mens rea for theft.  None had anything to do with the issues that arose in this case. 

[65]         The instructions on the law of assault provide a second example.  Once again, the trial judge used the model instructions without regard to the evidence or the positions taken at trial.  It will be recalled that it was conceded by the defence that Mr. Al-Ali was attacked and assaulted in the apartment.  The trial judge had only to tell the jury that if it accepted the unchallenged evidence that Mr. Al-Ali was attacked and/or threatened with a weapon, either or both of those actions constituted an assault in law.  Instructions about the need for the intentional application of force and the absence of consent were unnecessary and could only distract the jury. 

[66]         As explained in Pintar, at pp. 495-96, jury instructions must be shaped by trial judges and reviewed by appellate courts having regard to the purpose those instructions are intended to serve.  A proper jury instruction is one that fully and fairly arms a jury with the information it needs to reach a fair and proper verdict in the circumstances of the particular case.  Trial judges cannot simply cut and paste their charges together using the model instructions in Watt's Manual.  Nor can appellate courts review the adequacy of jury instructions without regard to the positions taken at trial and the circumstances of the particular case.

[67]         A functional approach to the jury instructions required for count one – robbery with a firearm – would produce something like the following:

(i)          You [the jury] should first decide whether you are satisfied beyond a reasonable doubt that Mr. Al-Ali was attacked by one or more persons while he was in the apartment.  If you are not so satisfied, you should acquit on count one.  If you are satisfied, you should continue to the next stage of your deliberations on count one.

(ii)       Are you satisfied beyond a reasonable doubt that the accused either alone or with others participated in the attack on Mr. Al-Ali by threatening him and/or striking him?  If you are not so satisfied, you should acquit the accused on count one.  If you are, you should move to the next stage of your deliberations on count one.

(iii)     Are you satisfied beyond a reasonable doubt that when the appellant participated in the attack on Mr. Al-Ali he intended to and/or did steal something from Mr. Al-Ali, or alternatively he knew that others participating in the attack intended to and/or did steal something from Mr. Al-Ali?  If you are not satisfied, you will acquit the accused on count one and move on to the aggravated assault charge in count four.  If you are so satisfied, you will move to the next stage in your deliberations on count one.

(iv)     Are you satisfied beyond a reasonable doubt that the accused was armed with a firearm (as I will define it) when he participated in the attack on Mr. Al-Ali?  If you are so satisfied, you will convict on count one as charged, that is, that the accused did rob Mr. Al-Ali while armed with a firearm.  If you are not so satisfied, you will convict him of the included offence in count one of simply robbing Mr. Al-Ali.

[68]         The approach outlined above would, in my view, avoid references to unnecessary legal concepts, focus on the nature of the allegations made against the appellant, and direct the jury to the live issues in the case.