Bad Jury Instructions Result in Successful Murder Appeal


Murder is the most serious offence in the Criminal Code. When an accused is charged with murder , the Criminal Code requires the trial be in front of a jury unless both sides agree to have a judge sit alone.


The Canadian jury system has been described as the "most familiar symbol and manifestation of the Rule of Law in this country". The jury brings to the system the "values and insights of ordinary citizens" as well as their "common sense".


In a jury trial, the jurors meet in a room outside the courtroom to decide whether the prosecutor has proven beyond a reasonable doubt that the accused is guilty.


A jury instruction is a guideline given by the judge to the jury about the law they will have to apply to the facts they have found to be true. The purpose of the instructions is to help the jury arrive at a verdict that follows the law of that jurisdiction.


The accuracy and sufficiency of these instructions, which are, of necessity, often long and complex, are frequent grounds of appeal. For instance, when a jury charge contains an error in the law, this can cause the jury to fall into error.


After jurors deliberate, all the jurors must agree on the decision or verdict – their decision must be unanimous. If they cannot all agree, the judge may discharge the jury and direct a new jury to be chosen for a new trial. After a trial, jurors are not allowed to tell anyone else about the discussions that took place in the jury room. This is why correct jury instructions are critical.


In R v Whiskeyjack, the Alberta Court of Appeal dealt with a case where the trial judge made an error in the jury charge. Mr. Whiskeyjack was charged with first degree murder. He was tried by a judge and jury.


The only direct evidence implicating him in the murder was his statement to police. Mr. Whiskeyjack testified in his own defence and explained his police statement.


The trial judge then provided instructions to the jury for how to assess Mr. Whiskeyjack's evidence. The judge told the jury to consider his evidence with “a great deal of caution”.


This placed a higher burden of proof on Mr. Whiskeyjack than the law permitted and had the effect of reversing the presumption of innocence.


As a result, the appeal was allowed and a new trial was ordered.

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