R. v. Royz

Binnie J. — The appellant, convicted of extortion after a short trial, appeals as of right based on a dissent in the Ontario Court of Appeal related to the adequacy of the trial judge’s review of the evidence in his charge to the jury.

At issue is the application to particular facts of the general principle governing jury instructions set out in Azoulay v. The Queen, [1952] 2 S.C.R. 495, at pp. 497-98:

The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.

To this should be added what was said in R. v. Jacquard, [1997] 1 S.C.R. 314, by Chief Justice Lamer: “I cannot emphasize enough that the role of a trial judge in charging the jury is to decant and simplify” (para. 13). Brevity is the soul of a jury charge that actually helps the jurors to focus on their job provided its members are given an adequate understanding of the relationship between the essential elements of the evidence and the issues they are required to resolve.

The appellant argues that “[e]vidence critical to the defence case was not reviewed and the jurors were never told how the evidence that was referred to could support a defence to the charge of extortion” (Appellant’s Factum, at para. 39). We do not agree. In applying the Azoulay principle to the circumstances of a particular trial, a trial judge must necessarily be vested with considerable latitude to determine how much or how little of the evidence is to be reviewed in relation to the elements of the charge. Here the evidence took less than a day and a half. The entire trial took place over three and a half consecutive days including jury addresses, instructions, deliberations and verdict. There were only three witnesses. The appellant did not testify (although a number of telephone conversations with him were recorded by the complainant and played to the jury). The evidence was fully reviewed before the jury by defence counsel and the Crown immediately prior to the judge’s instruction. The judge’s review of the evidence was succinct but adequate. While we agree that juries may tend to place more weight on what a trial judge says about the evidence than on the argument by counsel, there was no objection to the charge from defence counsel. Lack of objection is not fatal, but it may be informative, because defence counsel would have understood that additional evidentiary matters reviewed at his request might result in the judge repeating additional portions of the evidence requested by the prosecution on the same point, which might in the end have been expected to be more prejudicial than helpful to the defence. Trial counsel are well situated to assess whether the judge has given the jury an adequate review of the evidence for the purpose of the defence theory being pursued.

Despite Mr. Carter’s able argument on behalf of the appellant we are not persuaded that the jury instruction failed to convey a sufficient understanding of the evidence and how it related to the issues raised by the defence. The appeal is therefore dismissed.