R. v. Jaw and the Trouble with Close Reading Jury Instructions

Last Friday, the Supreme Court delivered its ruling in R. v. Jaw, 2009 SCC 42, the second in so many months considering the potentially prejudicial effects of erroneous jury instructions. The issues on appeal and holding of the court are not the most compelling, both being construed rather narrowly to a specific set of facts. The majority and minority opinions, however, provide interesting commentary on principles of interpretation and the seeming ease with which several defensible conclusions may be drawn from close reading the same jury charge.

The appellant in Jaw was implicated in the killing of a police officer called to investigate a domestic dispute between the appellant and his common-law spouse. During an altercation, the officer was fatally shot as both men grappled for the appellant’s gun. Appearing distraught about the shooting, which he later claimed to have been an accident, the appellant immediately reloaded his gun and left the scene threatening to commit suicide.  He did so without inquiring after the officer’s health. A jury eventually convicted the appellant of first degree murder, believing the shooting to have been intentional and not accidental; an accidental shooting would have substantiated the appellant’s conviction on a lesser charge.

The trial judge’s instructions regarding the appellant’s post-offence conduct were impugned on appeal. The rule is that evidence of such conduct cannot usually serve as a basis for inferring the degree of intention of an accused person who has admitted to committing an offence. Possibly, the appellant’s lack of concern for the officer’s well-being following the shooting suggests he was not surprised by the occurrence, implying a prior intent to kill. The appellant claims that the trial judge improperly overstated the probative value of evidence concerning post-offence conduct in his jury instructions.

The Impugned Instructions

The judge fleetingly referred to the appellant’s post-offence conduct a number of times throughout his charge.  It was his last such reference, less fleeting and most potentially ambiguous, which attracted the Supreme Court’s attention. Upon summarizing the Crown’s arguments against the accused, the judge proceeded as follows:

Furthermore, I think it is fair to say that the Crown says you should conclude that the accused knew he shot [the officer] because he did not even bother to check [the officer] before deciding, as he said, to kill himself. So, if you accept this evidence, you may conclude that at the moment [the officer] was shot, the accused intended to kill [the officer], or at least intended to cause bodily harm that he knew was likely to kill [the officer], and he was reckless about whether the [officer] died or not. [Emphasis added.]

Justice Fish explains that jurors are presumed to act in accordance with the judge’s instructions as given and not on what the judge may have intended them to convey. Interpreting impugned instructions, therefore, requires us to emphasize the particulars of diction, syntax, and punctuation in the text; appreciate that form necessarily mirrors content; and discount both authorial intent and our own personal biases in what is essentially an exercise in critical close reading.

Justice LeBel’s Close Reading

Justice LeBel, writing for a majority of seven justices, dismisses the appellant’s appeal.  He finds the trial judge’s instructions cannot reasonably be interpreted to suggest that the jury could properly infer criminal intent from post-offence conduct alone.

Justice LeBel concedes the last point of the impugned charge (captured in the preceding sentence beginning “Furthermore […]”) improperly concerned post-offence conduct, but stresses that this section followed a full recapitulation of the Crown’s theory of the case.  He believes the words that follow (“So, if you accept this evidence, you may conclude […]”) refer to the entirety of the Crown’s evidence theretofore summarized, as opposed to simply the immediately preceding sentence referencing post-offence conduct.  When divorced from the context of the entire charge, then, the sentence grouping may mislead readers into thinking the trial judge permitted the jury to infer from post-offence conduct that “the accused intended to kill [the officer]”.  Justice LeBel acknowledges the trial judge’s mention of post-offence conduct in this context was clumsy, but finds it was not so obscuring as to threaten procedural fairness.

For Justice LeBel, complicating all attempts at close reading the charge is a familiar concern of literary critics: uncertainty about the accuracy of damaged, copied, or otherwise compromised source material. There was some potential for transcription difficulties at trial, as the jury charge was delivered in English and translated sentence-by-sentence into Inuktitut. Given that inflections, special emphasis, and natural breaks between topics may not always be captured by written record, Justice LeBel argues that “a transcript is not an authoritative legal text” and must be examined critically when necessary. The paragraph structure of the charge as written in the transcript may not necessarily reflect the structure of the charge as delivered at trial.

Justice Fish’s Close Reading

Justice Fish, writing for himself and Justice Binnie in dissent, interprets the trial judge’s instructions as expressly inviting the jury to consider the accused’s post-offence conduct in determining intent.

Justice Fish argues that the “two sentences in the impugned extract cannot be conceptually disjoined,” as each must be read in relation to the other. If the jury construed “this evidence” to directly refer back to the preceding sentence relating the Crown’s theory on post-offence conduct, that would be incontestably improper. Alternatively, if the jury construed “this evidence” to encompass all the evidence previously summarized, as Justice LeBel finds, such evidence would obviously include the Crown’s theory on post-offence conduct.  This interpretation would still enable the jury, albeit less directly, to decide based on the appellant’s post-offence conduct that the appellant intended to commit murder. Either way, the trial judge’s endorsement of an impermissible use of evidence constituted a reversible error.

With regard to potential transcription difficulties complicating attempts at close reading, Justice Fish dismisses the majority’s concern rather cheekily: “Those of us who have conducted or participated in bilingual trials” –which of course includes both himself and Justice LeBel as francophone judges from Quebec– “know from experience that interpreted proceedings invite closer scrutiny to ensure the integrity of the transcripts.” It would seem he believes there to be a reckless liberality in granting appellate judges the discretion to excuse apparent errors at trial on the mere speculation that there could have been imperfections in the transcript.

The Trouble with Such Interpretations

Both the majority and minority provide persuasive reasons why their respective close readings are the more accurate renderings.

I respectfully share Justice LeBel’s concern that the structure of the impugned paragraph as written in the transcript, which appears to associate post-offence conduct with evidence permissibly grounding a finding of intent, may mislead readers into believing the trial judge himself associated the two at the trial.  Without an authoritative recording, however, I must nonetheless agree with Justice Fish that appellate courts are ill-suited to question the integrity of transcripts where paragraph structures may belie desired findings. Subsequent reviewers have no choice but to interpret the record as it is set before them. Given that, I am persuaded that the ambiguity caused by the lack of modification addressing the scope of “this evidence” the jury was instructed to consider created a risk that the jury placed undue emphasis on the appellant’s post-offence conduct when determining the appellant’s guilt.

Again respectfully, and to posit yet another close reading of the charge, it would seem the trial judge’s use of the conjunctive “So” immediately after reviewing the Crown’s theory on post-offence conduct and immediately before instructing the jury to consider “this evidence” may further suggest that the two notions are conceptually linked, as if relevant evidence flows from the conduct. Although I reach the same conclusion as Justice Fish, I did so with unique interpretive tools –-and I do not say so to be self-aggrandizing. Close reading is an exceedingly individualistic approach to criticism, permitting observers considerable freedom to recall parts of speech, grammatical modifiers, paragraph spacing, and any number of literary devices in developing their theories of meaning. Such an approach may be said to encourage great creativity in criticism.

The difficulty close reading then creates is in discerning which of competing readings are “right”  and which are “wrong”. If I may employ a facile comparison, professors of English literature would be unlikely to discourage students from articulating original, formalist interpretations of most poems, as such texts may not have fixed meanings; in fact, many such poems may have been designed to engender such discussion. Unlike poems, though, our laws must have fixed meanings to be publicly accessible and intelligible.  It is to this end that our Supreme Court is charged with clarifying ambiguities therein, and it is perhaps unfortunate the ultimate result is less convincing in cases where the authorial intent of an impugned expression is irrelevant and where multiple justices release plausible interpretations of its meaning. There is no doubt that Justice LeBel’s opinion in R. v. Jaw, held by a firm majority, is the law of the land; I remain unconvinced, however, that his close reading is any more or less “right” than Justice Fish’s.  And it would seem that is a critical inevitability.