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Canada: Supreme Court Calls for Clear and Complete Jury Instructions in Criminal Cases

(July 21, 2015) On July 17, 2015, in the murder case of R. v. Rodgerson (2015 CSC 38, Judgements of the Supreme Court of Canada), the Supreme Court of Canada dismissed an appeal from the Court of Appeal for Ontario and found that the majority of the Court of Appeal judges had ruled correctly in ordering a new trial for second degree murder. The justices first had to decide whether the Court of Appeal had been right in finding that the trial judge had erred in his instructions to the jury concerning intent. Having concurred with the appeal court ruling, the Supreme Court had to determine whether that error and others plaguing the instructions to the jury were significant enough to merit a second trial, or whether to apply the curative proviso. (Id. para. 10.) In addition, the justices directed lower courts on the need to attain balance in the instructions given to a jury. (Tali Folkins, SCC Offers Guidance on Trial Judges’ Jury Instructions, LEGAL FEEDS (July 17, 2015).)

Facts of the Case

Mr. Rodgerson, the accused, was tried on the charge of first-degree murder of Ms. Young, a woman he met in a bar. At trial, Rodgerson testified that he and Young went back to his home and engaged in consensual sexual activity. In a subsequent struggle, which Rodgerson testified was initiated by Young, Rodgerson killed Young. (R. v. Rodgerson, paras. 11-12.)

After her death, the accused went to great lengths to hide Young’s body and clean up any sign of the crime scene and of Young’s presence in his home. (Id. para. 13.) When the police arrived at his home to execute a search warrant, Rodgerson attempted to flee and lied in an attempt to suggest that someone else had caused Young’s death. (Id. para. 14.)

At trial, the fact that the accused had killed the young woman was not contested. He argued self-defense, provocation, and lack of intent and that the charge of first-degree murder was not justified. (Id. para. 2.) The jury found him guilty of second degree murder. He appealed the decision, stating that the trial judge had given the jury incorrect instructions to consider his actions post-offense on the matter of intent. The court of appeal granted his appeal and ordered a new trial for second degree murder. (Id. paras. 7-8.)

Error in Jury Directives

The Crown conceded that the flight from police and lies to the police could not be considered as indicators of intent, so the Supreme Court was left to decide whether the concealment of the remains of Young and the cleaning up of the crime scene could be taken into account by the jurors. (Id. para. 17.)

The justices found that the actions of Robertson could be relevant in demonstrating intent, stating

In other words, the jury might reasonably have concluded that he sought to conceal Ms. Young’s body and clean up the scene of her death in order to conceal the nature and extent of Ms. Young’s injuries and the degree of force required to inflict them. As indicated, the more severe the injuries, and the more force required to inflict them, the stronger the inference that he intended to kill Ms. Young or cause her bodily harm which he knew was likely to cause death. This is not the only inference that could be drawn from the concealment and clean-up, but it is one the jury was entitled to draw.
(Id. para. 20.)

In order to consider his actions as a possible indicator of intent, the Court found that the jury needed to be clearly instructed on the matter. However, the trial judge had failed to instruct the jury on how to consider the evidence, which resulted in a legal error, the justices concluded. (Id. para. 28.) “The legal error in the jury charge was the failure to assist the jury in understanding the limited and somewhat nuanced relevance of the concealment and clean-up evidence on the issue of intent for murder.” (Id. para. 34.)

New Trial and Recommendations for Jury Instruction

The Court ordered a new trial on the charge of second-degree murder, stating that the curative proviso did not apply. The curative proviso allows a court to uphold the decision and legal errors made by a trial judge, as long as there is no miscarriage of justice. (Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iiii), CANLII.)

In regard to the concern that jury instruction is becoming more complex and lengthy, the Court stated that the trial judge needed to provide more specific instructions on how to consider the evidence. The justices demonstrated that these directives could be explained briefly (R. v. Rodgerson, para. 29); the Court found that a great deal of the instructions that were given by the trial judge were unnecessary and that “the length, repetitiveness, and complexity of the jury charge were unwarranted.” (Id. para. 43.) Judge Moldaver, who penned the reasons for the judgment, with which the other justices concurred, criticized the use of model charge manuals by trial judges:

However, rather than quoting large extracts from appellate decisions, trial judges have taken to quoting large extracts from model charge manuals to safeguard their verdicts from appeal. This has resulted in an over-reliance 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. In my view, the failure to isolate the critical issues in a case and tailor the charge to them inevitably makes the instructions less helpful to the jury and adds unnecessarily to their length and complexity. (Id. para. 51.)

Ultimately, they reminded trial judges of their duty to “strike a crucial balance by crafting a jury charge that is both comprehensive and comprehensible.” (Id.)

Prepared by Julia Heron, Law Library Intern, under the supervision of Tariq Ahmad, Senior Legal Research Analyst.