Monday, May 7, 2012

Providing parts of instructions to jury is dangerous

R. v. Li, 2012 ONCA 291 deals with providing parts of jury instructions to jury. The Court holds:

[84]       In R. v. Poitras (2002), 57 O.R. (3d) 538, Doherty J.A. approved the possibility of providing some portions of the instructions to the jury in writing in order to assist them with complicated legal instructions. However, when only part or parts of the oral charge are given to the jury in writing, it is essential that those parts be complete, that they be accurate, and that they be fair and balanced. The trial judge should also include the charges on the presumption of innocence and on reasonable doubt which are fundamental legal principles applicable in every case.

[85]       In my view, the trial judge erred in this case by giving the jury the three portions of the charge in writing, both in the manner and timing of their delivery to the jury and in their content in the circumstances of this case. From the record it appears that one copy of the written portions of the instructions, labelled "A", "B" and "C", was sent into the jury room several hours into the deliberations. There had been no question from the jury or request for clarification. Nor was the delivery accompanied by any explanation, although the trial judge had mentioned in his charge that he would likely be giving the jury parts of the charge in writing.

[86]       Once the jury was well into their deliberations, one cannot know what issues they had already covered or decisions they had already reached. By sending in only some written instructions at that point, it is likely that the effect would be to put emphasis on them. Here the content of the instructions was the routes to party liability as well as methods by which the jury could use the statements of the co-accused or others as part of the evidence to substantiate that liability. Importantly, these instructions were not balanced by the instruction on the presumption of innocence. And, although there are a number of references to proof beyond a reasonable doubt contained within them, those references do not emphasize the need for the Crown to prove guilt beyond a reasonable doubt as an overarching principle. Including written instructions on both these points would have acted as a necessary balance to the portions that were in fact provided which, when read in isolation, can be viewed as highlighting the Crown perspective.
[90]       When the foregoing is taken together with the failure to provide in writing the fundamental instructions on the presumption of innocence and reasonable doubt, the timing of providing these materials to the jury, and the overall complication of what was provided, in my view the result of this procedure was to cause an unfairness in the trial.

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