Structure of jury charge

R. v. Feng, 2014 BCCA 71:

[56]        While the structure of a jury charge is a discretionary matter for the trial judge and therefore is entitled to deference, it must give the jury the necessary tools to properly decide the issues before them. In this case, where the jury had to consider three potential verdicts and two defences, considerable care had to be taken in ensuring they understood the proper sequence to their deliberations.

[57]        In R. v. Almarales, 2008 ONCA 692 (CanLII), 2008 ONCA 692, 244 O.A.C. 127, Mr. Justice Watt, writing for the Court, observed that "some approaches are more apt to facilitate juror understanding than others" (para. 98). He noted that in most cases of unlawful homicide, the recommended practice (in that province) was: (i) to begin with defining homicide and unlawful homicide; (ii) to follow with the elements of the offence (murder or manslaughter) and the legal principles relevant to each element of the offence at issue, including any defence that may apply to that element of the offence; and (iii) to review the evidence relevant to the elements of the offence at issue (paras. 99 and 100). He added that some defences such as duress (and we would add provocation) are better understood after the jury has determined that the accused has committed the offence charged or an included offence.

[58]        Watt J.A. underscored this approach again in R. v. Huard, 2013 ONCA 650 (CanLII), 2013 ONCA 650, 311 O.A.C. 181, where he reiterated that "an orderly or systematic approach to final instructions seems more likely to enhance a jury's understanding of the precise nature of its task and how to discharge it by following a series of logical steps corresponding to the essential elements of the offence charged" (para. 51).