Jury Instruction and the Role of Judges and Jurors: R v Daley

Abortion, affirmative action, race-based quotas in public schools; these are a few issues that presently divide the U.S. Supreme Court. One of the reasons why the the US court so often finds itself in the media spotlight is because the divisiveness of issues such as these extend well beyond the bench. Indeed, they often (as in the case of abortion) correspond to political divisions in the American public. By extension, one reason why the Supreme Court of Canada (“SCC”) receives significantly less media attention than its American counterpart is because, albeit with a few notable exceptions, the major points of disagreement in the jurisprudence of Canada’s top court tend not to reflect corresponding cleavages among the Canadian public.

Take, for example, the case of jury instruction. While it is not likely to compel Canadians to march en masse to 24 Sussex, pitchforks in hand, it is the subject of a hotly contested SCC decision in R v Daley, 2007 SCC 53 [Daley]. TheCourt.ca‘s Rebecca Ross has ably canvassed the facts as well as the majority and dissenting opinions in an earlier post, available here. In this post, I try and show that while it may not be a politically contentious issue, the competing approaches to jury instruction within the SCC engender competing assumptions about how active a role judges ought to play in framing the decisions of juries.

Legal Principles Governing Jury Instruction

The best place to begin in this regard is by considering the core requirements of a jury instruction on which both sides of the SCC relied in Daley. Jury instructions must have the following characteristics:

1. instruction on the relevant legal issues, including the charges faced by the accused;
2. an explanation of the theories of each side;
3. a review of the salient facts which support the theories and case of each side;
4. a review of the evidence relating to the law;
5. a direction informing the jury they are the masters of the facts and it is for them to make the factual determinations;
6. instruction about the burden of proof and presumption of innocence;
7. the possible verdicts open to the jury; and
8. the requirements of unanimity for reaching a verdict.

At issue in Daley was the adequacy of the trial judge’s instruction on the defence of intoxication, in particular whether the trial judge was required to give a specific instruction on proof beyond reasonable doubt relating to the credibility of the accused (see 1 and 2 above), and whether the trial judge adequately canvassed the facts and evidence introduced by the defence, (3 and 4).

The Trial Judge’s Instructions

The instructions of the trial judge, Kyle J., were summarized by Vancise J.A., writing for a majority of the Saskatchewan Court of Appeal as follows (see R v Daley, 2006 SKCA 91):

The trial judge instructed the jury that the Crown must prove beyond a reasonable doubt that the appellant had the intent to kill or cause bodily harm knowing it was likely to cause death. He advised the jury that the appellant’s consumption of alcohol shed some light on the appellant’s state of mind but warned it was for them to decide whether the accused intended to cause the consequences of his acts. He carefully advised the jury that if they had a reasonable doubt about the state of mind they could not conclude that he intended to cause the consequence of his acts and hence did not have the requisite intent.

In her dissenting opinion in the appellate court, Smith J.A. identified a number of facts that were ommitted in Kyle J.’s instruction to the jury. The net effect of these omissions, she contended, was an overemphasis on evidence downplaying the accused’s degree of intoxication. Smith J.A.’s objection notwithstanding, the Saskatchewan Court of Appeal upheld the jury instruction.

The SCC Decision

Kyle J.’s jury instruction was also upheld at the Supreme Court. Writing for the majority, Bastarache J. emphasized the importance of brevity in jury instruction, and even suggested that the trial judge’s omissions were not only acceptable, but entirely necessary. “Trial judges,” he explained, “need only summarize and present to the jury what was clearly stated by the expert witness, nothing more.

It is dangerous and in most cases inappropriate for trial judges to interpret the evidence of experts for the jury.” In Bastarache’s view, the impugned expert evidence — which attested to the existence of a correlation between alcohol-induced amnesia and a lack of judgment and assessment of appropriateness — would only merit inclusion in the jury instruction if it conveyed that someone in the accused’s state of mind would be unable to foresee the consequences of his or her actions.

Fish J., in an impassioned dissent took issue with Bastarache’s finding. In his view, Kyle J.’s jury instruction was not fair and balanced. It was “fatal to the judge’s charge” he explained, “that it included no mention at all of the appellant’s position that he lacked the requisite mens rea to commit murder because his extreme intoxication rendered him incapable of foreseeing the consequences of his actions.”

Additionally, Fish J. found that nothing in the trial judge’s instructions provided the jury with an adequate idea of how to apply law to the facts of the case. Specifically, he expressed his concern with the fact that “the jurors were never told that extreme intoxication was a defence to the charge of murder if it raised in their minds a reasonable doubt whether the appellant realized that death was a likely consequence of his actions.”

Jury Instruction and the Role of Jurors

Bastarache and Fish JJ. do not disagree about the legal principles jury instruction. Rather, they differ on the application of those principles. Bastarache J.’s places a premium on brevity and the provision of a “concise and fair summary of the evidence.” In contrast, Fish J. seems partial to a more comprehensive account of the evidence which will “draw to the jury’s attention any significant evidence capable of supporting [the legal theories of the Crown and defence].”

On a more theoretical level, the difference in opinion between the two judges is informed by competing conceptions of the precise parameters of the judicial role in framing the decisions of juries. In Bastarache J.’s account, the judge plays a more interventionist role. By selectively omitting evidence in a particular case, a judge effectively prejudges the evidence before the jury, privileging certain items of evidence and de facto dismissing others.

Fish J., by contrast, seems to envision a more passive judicial role in jury construction and, by extension, a jury that has more agency to assess the validity of particular items of evidence more or less free from judicial interpretation. Accordingly, he advocates a more comprehensive jury instruction, thereby subjecting more evidence to the the interpretation of jurors as opposed to judges.