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Preface

Canadian Judicial Council
National Committee on Jury Instructions

In 1998, in his capacity as Chair of the Canadian Judicial Council, Chief Justice Antonio Lamer established the National Committee on Jury Instructions to draft model criminal jury instructions. The Committee’s work has been enthusiastically supported and brought to publication by his successor, Chief Justice Beverley McLachlin, and continues to receive the support of the Canadian Judicial Council.

The Committee is made up of legal experts from across the country – including judges at the trial and appellate levels, defence counsel, and prosecutors. A working group of volunteers meets several times a year and prepares draft instructions that are then sent to a larger consultative committee for comments. The finished instructions are made publicly available on the website of the National Judicial Institute, and are also accessible through the website of the Canadian Judicial Council.

The Committee is committed to making its instructions available in both English and French, and to ensuring that both versions are of equally high quality and available at the same time. With the assistance of experts in both languages, the Committee prepares the instructions simultaneously in French and English. Its goal is to produce legally accurate instructions in terms that jurors will understand.

While the Canadian Judicial Council supports the preparation of these instructions, this does not mean that they are sanctioned by the Council. Any authority they enjoy derives from their actual use in criminal proceedings – by lawyers, trial judges, jurors, and appellate courts.

These instructions do not cover all the topics that may arise in criminal jury trials. The Committee’s priority has been to address matters on which all juries must be instructed (eg, burden of proof, presumption of innocence, reasonable doubt, procedures, types of evidence, etc) as well as those offences and defences that go to juries most frequently (eg, homicide, sexual assault, self defence, provocation, etc). Over time, the scope of these instructions grows as the Committee adds new ones.

Judges must adapt these instructions for their own use in particular cases and circumstances (see “A Note to Users” below). For ease of modification, the instructions are published in various formats (HTML, PDF, Word). As both the Crown and defence counsel also have access to these instructions, their input will often be invaluable.

The Committee revises and updates these instructions continuously in response to statutory amendments, new case law, and comments from judges and lawyers. The Committee welcomes your comments and suggestions (write to jury@cjc-ccm.gc.ca).

A Note to Users

These are “specimen instructions”. This means that they are not designed to be delivered “as-is”. They must be adapted to the particular circumstances of each jury trial, not simply read out in whole. The Supreme Court of Canada has cautioned trial judges about the need to adapt these kinds of model instructions to the circumstances of each jury trial:

Rote, repetitive and generic charges are of little value, and are often harmful to the jury’s comprehension. Indeed, they can and do lead to instruction that is all but meaningless. Charges should be thoughtfully tailored to focus on the key evidence and the key issues that are relevant in the particular context of the case.

. . .

[R]ather than quoting large extracts from appellate decision, trial judges have taken to quoting large extracts from model charge manuals to safeguard their verdicts from appeal. This has resulted in an overreliance on the rote reproduction of excerpts from model jury instructions. But model charge manuals do not necessarily translate into model charges. They are a tool, not the final product. They are there to guide, not govern. (R v Rodgerson, 2015 SCC 38 at paras 43, 51)

To assist the trial judge in fashioning instructions for use in a specific case, these charges include instructions for him or her. There are two types: First, there are many places where the judge is asked to insert information that is specific to the particular case. These are usually indicated by italicized words in brackets. When encountering these bracketed words, the judge should insert the appropriate information. For example:

Offence 222(5) Unlawful Act Manslaughter

[4] . . .The unlawful act alleged in this case is (describe briefly unlawful act alleged including a reference to the relevant statute, e.g. the Criminal Code).

                (Set out the underlying offence and its essential elements, including any defences.)

Second, there are more extensive instructions for the judge set out in shaded boxes. These boxes are intended to assist the judge in modifying or adding supplementary instructions to the jury in special circumstances. If the circumstances identified in a shaded box apply to the case, the additional or modified instructions should be included in the charge to the jury. It will often be prudent to seek the input of counsel on the question whether these instructions are appropriate. Here are two examples:

Defence 16.1 – Mental Disorder

[9] . . .

When an accused asserts the defence of mental disorder and refuses to be interviewed by the psychiatrist for the Crown or to fully participate in the assessment process, the jury should be instructed that they may take this into account in weighing the evidence of the defence. This instruction must not be given if the Crown raises mental disorder, as the accused is entitled to rely on the right to silence.

(NOA) has raised the issue of his/her mental capacity and has led expert evidence to support that defence. However, s/he has refused to be interviewed by the psychiatrist for the Crown (or failed to fully participate in the assessment process). (NOA)’s refusal may cause you to put less weight on the evidence supporting his/her defence of mental disorder. This is a matter for you to decide based on all the circumstances.

 

Offence 467.11: Participation in the activities of a criminal organization

[3] . . .

Where the in­­dictment alleges “facilitation”, include the following definition:

Facilitation of an offence means making it easier to commit. Facilitation does not require knowledge of a particular offence or that an offence actually be committed.

 

These instructions are not annotated with case law. The Committee drafted the instructions based on the applicable language contained in the Criminal Code and the prevailing jurisprudence. In some cases, the Committee felt it appropriate to point to the original sources and has included the relevant citations in footnotes. In addition, in situations where there are variations between provinces or territories, the Committee has included references to decisions of provincial superior or appellate courts. Since the Committee may not have identified all of these variations, it will be important to check the case law in each jurisdiction to see if these instructions require modification. Generally speaking, while the Committee regularly reviews trial and appellate decisions and may cite them in footnotes to point out alternate approaches or variations across jurisdictions, the instructions themselves are modified only in response to decisions of the Supreme Court of Canada or legislative amendments.

The National Committee on Jury Instructions