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Devil's in the details (trial judges instructions to the jury).

The instruction that the trial judge gives to a jury before sending it off to its deliberations is one of the most important parts of the trial process, and fraught with pitfalls. Trial judges must lie awake at night before a jury address; much hangs in the balance. Each word and phrase must be carefully weighed to be clear and unambiguous. The Crown and defence counsel listen vigilantly to every word; any verbal misstep by the judge may result in grounds for an appeal. The Supreme Court of Canada recently issued a decision in a case that was meant to address these worries, but the result doesn't guarantee a good night's sleep for the Canadian judiciary.

The case involved a Manitoba man named Starr who was convicted of two charges of first degree murder. A number of important legal issues were argued. One of these was the content of the charge to the jury that a trial judge must give about the definition of reasonable doubt. The majority decision on this point said "The reasonable doubt instruction given in this case ... likely misled the jury as to the content of the criminal standard of proof. The key difficulty with this instruction is that it was not made clear to the jury that the Crown was required to do more than prove the accused's guilt on a balance of probabilities. The trial judge told the jury that they could convict on the basis of something less than absolute certainty of guilt, but did not explain, in essence, how much less. In addition, rather than telling the jury that the words `reasonable doubt' have a specific meaning in the legal context, the trial judge expressly instructed the jury that the words have no `special connotation' and `no magic meaning that is peculiar to the law.' By asserting that absolute certainty was not required, and then linking the standard of proof to the `ordinary everyday' meaning of the words `reasonable doubt', the trial judge could easily have been understood by the jury as asserting a probability standard as the applicable standard of proof ... The error in the charge is that the jury was not told how a reasonable doubt is to be defined. The majority went on to say "In this case, the jury was not told that something more than probability was required in order to convict, and nearly all of the instructions they were given weakened the content of the reasonable doubt standard in such a manner as to suggest that probability was indeed the requisite standard of proof." The five judges who made up the majority position found that there was a realistic possibility that the accused's convictions in this case constituted a miscarriage of justice. They allowed the appeal and ordered a new trial.

There was a very significant split among the judges on this case: four judges disagreed with the majority position. Justice Hereux-Dube wrote for this group that while the charge to the jury wasn't flawless "The verdict ought not to be disturbed, however, because the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply. The charge communicated clearly to the jury that they could not find the accused guilty on a balance of probabilities. Moreover, the charge made it clear to them that the standard of proof beyond a reasonable doubt is inextricably linked to the presumption of innocence and that this burden never shifts to the accused."

So what's a poor trial judge to do? Well, the trial judge in the Starr case did not have the benefit of another Supreme Court decision in a case called Lifchus. This case, decided in 1997, gave a "suggested charge to the jury". The suggested charge says:

"The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a `reasonable doubt' that the accused is guilty. What does the expression `beyond a reasonable doubt' mean? The term `beyond a reasonable doubt' has been used for a very long time and is a part of our history and tradition of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt."

The Starr case has unleashed a furor in Crown Prosecutors offices across the country because of fears that a number of serious criminal convictions may be overturned on appeals based on faulty charges to juries about the meaning of reasonable doubt. And will judges sleep more easily the night before giving jury charges? Maybe not. The majority position in the Starr case was that the trial judge did not meet the standard as set out in Lifchus. However, the four dissenting judges found that the trial judge did meet the bulk of the principles set out in Lifchus, and his deviations from the Lifchus standard were not fatal. It would seem that in charges to juries, the devil is still in the details.

R. v. Starr 2000 SCC 40

R. v. Lifchus 1997 3 S.C.R. 320
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Author:Mitchell, Teresa
Date:Dec 1, 2000
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