Duty of trial judge to review evidence and issues for jury

R. v. Minor, 2013 ONCA 557:

[79]       In all but the rarest of cases, a trial judge has a duty to review with the jurors the issues to be resolved and the evidence they may consider in resolving those issues. In R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 54, Bastarache J., giving the judgment of the majority, adopted what he described as "[o]ne of the classic statements describing the trial judge's duty to review the evidence in the charge" from Azoulay v. The Queen, [1952] 2 S.C.R. 495, at pp. 497-98:

The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.

[80]       Bastarache J. noted, at para. 57, that the extent of the review of the evidence will depend on the circumstances of the case. He added that the duty was succinctly put by Scott C.J.M. in R. v. Jack (1993), 88 Man. R. (2d) 93 (C.A.), at p. 102; aff'd [1994] 2 S.C.R. 310: "the task of the trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language".

[81]       He also pointed out, at para. 58, that the judge's duty cannot be considered in isolation:

Finally, it should be recalled that the charge to the jury takes place not in isolation, but in the context of the trial as a whole. Appellate review of the trial judge's charge will encompass the addresses of counsel as they may fill gaps left in the charge: see Der, at p. 14-26. Furthermore, it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge's instructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review. The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation.

[82]       The issue was thoroughly canvassed by this court in P.J.B. At para. 44 of that case, Watt J.A. stated:

The responsibility of the trial judge to relate the evidence to the issues raised by the defence involves two components. The first is a review of the evidence. The second is a relation of the evidence to the position of the defence. Except in rare cases, where it would be unnecessary to do so, a trial judge must review the substantial parts of the evidence and give the jury the position of the defence so that the jury appreciates the value and effect of that evidence: Azoulay v. The Queen, [1952] 2 S.C.R. 495, at pp. 497-498. Typically, trial judges review the evidence in the context of the various issues and indicate what parts of the evidence support the positions of the respective parties on those issues: MacKinnon, at para. 29. Judicial review of the evidence refreshes the jurors' memory of the evidence given. Judicial relation of the evidence to the issues improves jurors' understanding of the particular aspects of the evidence that bear on their decision on each essential issue in the case.

[83]       He concluded that the charge in that case lacked a focussed reference in relation to each count to the factual issues to be resolved, a statement of the parties' positions, and a review of the significant features of the evidence related to the parties' position on each count.  This failure to properly instruct the jury deprived the accused of a fair adjudication of the case and warranted a new trial.