R v Abdullahi: The (In)Flexibility of the Appellate Review of Jury Instructions

In R v Abdullahi, 2023 SCC 19 [Abdullahi], Canada’s highest court made a 6-1 ruling that an Ontario trial judge erred in law by insufficiently instructing the jury of the legal definition of “criminal organization” per s. 467.1(1) of the Criminal Code, RSC 1985, c C-46 [Code] or [Criminal Code]. This decision is important for two reasons. First, it provides guidance on the way appellate courts ought to approach review for error in jury instructions. Second, it provides assistance in the judicial interpretation of “criminal organization” under s. 467.1(1) of the Code.

Background

An illegal firearms investigation in Ontario led to the arrest of several persons, including the defendant Ahmed Abdullahi (Abdullahi, paras 7-8). Mr. Abdullahi was tried by a jury who, following a contested charge from the trial judge, found him guilty of several firearm charges and one count of activities participating in a criminal organization contrary to s. 467.1(1) of the Code (Abdullahi, para 20). Mr. Abdullahi appealed his convictions on three accounts.

Ontario Court of Appeal (ONCA)

The first two accounts for the accused’s appeal were dismissed by a unanimous Court of Appeal. However, the third issue—whether the trial judge erred in instructing the court with respect to the elements required to establish a “criminal organization”—divided the court. On this issue, the accused argued that by simply reciting the Code provision, and failing to refer to the R v Venneri, 2012 SCC 33 [Venneri] framework of “structure” and “continuity” in defining a  “criminal organization”, the trial judge failed to adequately equip the jury with sufficient knowledge on the law (Abdullahi, para 22). On this basis, the accused claimed an error in law in the trial judge’s jury instruction, and he sought a new trial to that effect.

The majority of the ONCA did not agree with the accused’s position on this account. They concluded that the trial, as a whole, adequately equipped the jury with knowledge on the relevant state of the law (Abdullahi, para 24). Namely, based on the evidence before the jury, the closing arguments of defence counsel, and the lack of defence counsel’s objections to the charge, the jury was likely aware of the “structure” and “continuity” requirements of a “criminal organization.”

Paciocco J departed from the majority decision. He concluded that the context of the trial would not in and of itself adequately inform the jury as to the “structure” and “continuity” requirements (Abdullahi, para 3). Neither the evidence in the trial, nor counsel’s closing arguments, nor the lack of objections on behalf of defence counsel implied that the jury was adequately equipped (Abdullahi, para 26). In his view, the appellant’s right to a properly instructed jury was infringed by the trial judge’s instruction.

Supreme Court of Canada (SCC)

On further appeal, the Supreme Court considered whether the trial judge had erred in law in his jury charge by failing to instruct the jury of the Venneri interpretation of “criminal organization”. Writing for the majority, Rowe J answered the question affirmatively (Abdullahi, para 96). In his decision, he confirmed the use of a “functional approach” in appellate review of jury instruction (Abdullahi, para 35). This approach encourages courts to consider the charge as a whole and focus the inquiry on whether the charge has achieved its overall purpose of accurately and sufficiently equipping the jury with relevant knowledge on the law. In response to the ONCA’s majority opinion, Rowe J wrote that factual evidence cannot replace adequate instruction on a given law (Abdullahi, para 61). Similarly, while the closing arguments of counsel can fill factual gaps in the jury instruction, they cannot inform the jury of the state of the law (Abdullahi, para 65). Additionally, the majority held that while the silence of counsel can be a relevant factor in appellate assessment, it cannot be determinative of the proper jury instruction absent any further indications (Abdullahi, para 67).

In applying these appellate review guidelines to the jury instruction on the requirements of a “criminal organization”, the majority found the Venneri requirements of “structure” and ‘continuity’ to be crucial components of establishing a s. 467.1(1) offence. In failing to explicitly inform the jury of these requirements, the trial judge did not sufficiently equip the jury to apply the law to the facts. As such, the appellant’s right to a well-informed jury was infringed by the trial judge’s limited instruction.

Côté J departed from the majority and affirmed the ONCA’s majority decision, (Abdullahi, para 100). She held that a functional approach to appellate review of jury instructions ought to be flexible and contextual. In this case, the overall charge, counsel’s closing arguments, the lack of objection to the charge, combined with the lack of related follow-up questions from the jury, implied that the jury was adequately instructed and aware of the law. As per Côté J’s dissent, the charge conveyed to the jury that their finding of a “criminal organization” applied to a group that 1) was organized; 2) existed for a duration of time; and 3) was not formed for the sake of committing a single offence (Abdullahi, para 99). In meeting these requirements, the jury would necessarily find “structure” and “continuity”. Therefore, the mere failure to explicitly use the terms set out in Venneri in a jury charge did not amount to an insufficiently instructed jury.

Flexibility is Problematic

Côté J’s dissenting account of an overly flexible functional approach to appellate review is problematic for three reasons. First, her account puts an unfeasible burden on counsel in the adversarial process. Lawyers are adversaries. Their position in a trial is to advance an inherently partial and nuanced position on the facts and on the law. Plaguing counsel with the responsibility to convey a purely objective stance on the law to the jury often contradicts their adversarial role. Putting this responsibility on counsel may manifest itself as either a coloured representation of the law to the jury; or, in the alternative, a violation of counsel’s ethical obligations as an advocate. This is precisely why informing the jury on the neutral standing of the law, as determined by legislation and case law, ought to rest exclusively on the judge. Therefore, the contention that a jury has received adequate information on the state of the law from counsel’s closing arguments and their lack of objection to the jury charge is inconsistent with the nature of our legal process.

Second, Côté J’s flexible approach requires the jury—who exclusively serves as the trier of fact—to take on a judicial role and interpret ambiguous legislation. Côté J’s account seems to contend that the notions of “structure” and “continuity” can be reasonably deduced from s. 467.1(1) of the Code itself. This is likely plausible; after all, the court in Venneri made this exact deduction (Venneri, paras 23–-36). However, to assume that the ability to make this deduction extends to the laymen of the jury is problematic. Juries are not equipped with the tools of statutory interpretation; therefore, they cannot reasonably be expected to deduce the requirements of “structure” and “continuity” from a plain reading of a provision. In Venneri, the court spent a sizeable portion of its decision justifying its interpretation of the components of a “criminal organization.” The contention that the jury will (or is even expected to) partake in a similar degree of assessment in understanding the requirements of a “criminal organization” goes against the grain of our legal foundation and discharges the judge of some core responsibilities.

Finally, Côté J’s dissent risks provoking the existing concerns surrounding jury bias, and ultimately aggravating existing barriers in the criminal justice system for disenfranchised communities. A plain reading of a Criminal Code provision, absent further characterization by case law, offers an inordinate amount of interpretative discretion to the jury. That is, in the absence of strict guidance on how to interpret the law, members of the jury resort to their own conceptions of what the law is (or perhaps ought to be). This is quite risky. Juries, unlike judges, are not awarded the safeguards to check their bias at the door of the courthouse. Their interpretation of the contours of the law will likely be heavily influenced by their existing predispositions. In a society that inevitably favours certain communities over others, this will have a disparate, and overall oppressive impact on disenfranchised groups. As such, a sizeable amount of jury discretion has the potential to collapse into a barrier to justice for those who already fall victim to systemic disenfranchisement.

Recap

In a 6-1 decision, Canada’s highest Court affirmed the “functional approach” to appellate review of jury instructions, and it provided further assistance in interpreting the language in s.467.1(1) of the Code. By charging the trial judge to inform the jury of the interpretive case law surrounding this provision, the majority adopted a more inflexible approach to reviewing jury instructions. In contrast, the dissent advanced an overly flexible approach to appellate review. The dissent’s proposed flexibility proves inconsistent with our existing legal process, overburdens jurors with judicial responsibilities, and ultimately risks aggravating existing systemic barriers.