Wednesday, December 23, 2015

A judge must not direct a jury to find an essential element of an offence

R. v. Budhoo, 2015 ONCA 912:

[79]       In R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, the Supreme Court of Canada held that a trial judge should not assess the evidence or provide a direction to a jury that to an essential element of an offence had been proven beyond a reasonable doubt (at para. 31):

Hence, it is never the function of the judge in a jury trial to assess the evidence and make a determination that the Crown has proven one or more of the essential elements of the offence and to direct the jury accordingly. It does not matter how obvious the judge may believe the answer to be. Nor does it matter that the judge may be of the view that any other conclusion would be perverse. The trial judge may give an opinion on the matter when it is warranted, but never a direction.

[80]       Even if the essential elements seem obvious, it remains a determination for the jury.



Of the Law Societies of Upper Canada and Nunavut 

1 comment:

Ernest Guiste said...

And how many times has this happened without appellate intervention ?