R v MRS, 2020 ONCA 667
The Issue
Was the jury charge “overlong and needlessly complicated” in a manner that impacted the fairness of the trial [para 4]? Was the jury charge “excessively long and so laden with unnecessary information” that it diverted the jury’s attention in the manner discussed in R v Rodgerson, 2015 SCC 38 at paras 50-52.
The Answer
Albeit in obiter, the court noted two points. First, the lengthy recitation of evidence heard by the jury was unnecessary and ran the risk of taxing “the powers of the jurors’ concentration, increasing the risk of confusion and inattention” [para 108].
Second, use of large extracts of model jury charge instructions, some on points not in issue, was unnecessary and contrary to the guidance in R v Rodgerson, 2015 SCC 38 at paras 51-53.
The Fine Print
The Court of Appeal offered some correction and guidance related to how trial judge’s should develop their jury instructions – important guidance perhaps where so many jury trials result in successful appeals related to impugned instructions:
First, “a bulk recitation of all the evidence heard at the trial, without discrimination or analysis, is of no assistance to the jury”: Barreira, at para. 30. Indeed, as this case shows, it is apt to do more harm than good. The jury charge was unnecessarily long in what was a straightforward case. Close to half of the charge, 84 of the 192 transcript pages, was dedicated to summarizing testimony that the jury had heard directly. This not only taxed the powers of the jurors’ concentration, increasing the risk of confusion and inattention, it resulted in the prejudicial repetition of a significant amount of collateral bad character evidence. The trial judge would have been better advised to have forgone this part of the charge and focussed instead on the summary she offered of the material evidence relevant to the issues.
Second, instead of identifying the legal issues that required explanation, the trial judge included large extracts from a model charge manual relating to matters not in issue. In Rodgerson, at paras. 51-53, Moldaver J. counselled against doing so and urged trial judges to isolate relevant legal instructions. Legal directions are often conceptually challenging. In the interests of efficiency and focus, jurors should not be taxed with legal instruction on matters that are not in issue, as occurred in this case.
Indeed, one of the legal issues discussed in the charge was not only not a live issue but was not properly before the jury. The children complainants were minors, legally incapable of consenting to the alleged assaults, yet the jury was educated in the law of consent relating to the assault charges against the children, including factors that vitiate consent, none of which applied. [Paras 108-110].