THIS BOOK IS ESSENTIAL FOR: judges and lawyers involved in criminal jury trials.

Transcription

1 Canadian Criminal Jury Instructions (CRIMJI) Fourth Edition [Regular Updates] For over 20 years, the source of jury instructions and law that the bench and bar in Canada have turned to CURRENT TO: September 1, 2009 ITEM NO: 30835W NO. OF PP: 2,098 pp., 2 vols. ISBN PRICING: $350 (includes charges, notes, tables, and index on CD-ROM) THIS BOOK IS ESSENTIAL FOR: judges and lawyers involved in criminal jury trials. You know how much work is involved in a criminal jury trial. Research. Case law analysis. The elements of the charge. Now, put all of the case law research that goes into a judge's instruction to the jury to work for you. Prepared by Professor Gerry A. Ferguson, Faculty of Law, University of Victoria and two new authors, Mr. Justice Michael Dambrot of the Ontario Superior Court of Justice and Madam Justice Elizabeth Bennett of the BC Court of Appeal, and reviewed by an expert editorial board, CRIMJI is used across Canada by the judiciary and the criminal bar as an indispensable reference featuring: over 135 instructions on trial procedures, evidence, and all major offences and defences clear, concise language that is easy for jurors to understand extensive annotations with references and quotes from relevant case law user notes and checklists Highlights of the 2009 update Some of the amendments to the instructions include: CRIMJI 4.04 Proof Beyond a Reasonable Doubt: Note (7) was added to the title preceding paragraphs 8 to 11 referring to the Supreme Court of Canada s reiteration in R. v. S. (J.H.) that the standard Instruction for reasonable doubt arising from the accused s evidence, first developed in R. v. W. (D.), is not a magical incantation and can be modified to suit the circumstances. CRIMJI 4.21 Post-Offence Conduct: Another User Note was added preceding paragraph 1 to emphasize the point made in R. v. Figueroa that the post-offence conduct Instruction will have to be modified in some cases to reflect the fact that while post-offence conduct may reasonably support an inference that an accused was involved in an offence, it will not usually support an inference as to the nature of the accused s participation or his or her state of mind. Note (6b) was added to the end of paragraph 1 to reflect the point made in Wasfi that when directing the jury to consider alternative explanations for post-offence conduct, the trial judge should not place before the jury alternative explanations that are speculative and have no evidentiary foundation. CRIMJI 4.81 Untrustworthy Witnesses Accomplice Vetrovec Warning: The discussion in note (1) about the modern approach to warning juries about the special caution with which they should consider the evidence of unsavoury witnesses was expanded to include a discussion of the Supreme Court of Canada s decision in R. v. Khela, in which this area of the law was reviewed and new guidance provided. An additional circumstance calling for a Vetrovec warning, specifically the existence of collusion on the part of witnesses, was added to the note following paragraph 2, and explained in note (9a). A new paragraph 2A, accompanied by a new User Note, was added to provide a fuller explanation to the jury of the special scrutiny required in its consideration of the evidence of an unsavoury witness when the reason for that special scrutiny may be unfamiliar or unapparent to them, specifically, where the witness is an accomplice. Paragraph 3 and note (10) were amended to better reflect the obligation discussed in Khela and Smith to tell the jury that evidence that is capable of confirming the testimony of an unsavoury witness must be independent and material, and to explain the meaning of those terms to them. CRIMJI 4.91 Tape Recordings: A new note (3) was added to caution that the jury should not be specifically instructed to apply a standard of proof on a balance of probabilities to individual pieces of evidence, in particular, voice identification and the accuracy of translations of intercepted private

2 communications. CRIMJI 4.99A Criminal Code Provisions Handing to the Jury: In note (1), a reference was added to Winmill, in which the Court cautioned that when sections of the Criminal Code are provided to the jury, trial judges must ensure that they don t include provisions that are not relevant or that are of no force or effect. CRIMJI 5.00 and 6.18 Aiding or Abetting a Conspiracy: A conspiracy is complete once two or more persons agree to commit an offence. There is no requirement for the conspirators to engage in further acts directed toward carrying out the conspired offence. There are two conflicting lines of judicial authority whether party liability for the offence of conspiracy is limited to aiding the conspirators in the formation of the conspiracy or also extends to those who aid the conspirators in acts directed at carrying out the conspiracy. R. v. Trieu, 2008 ABCA 143, reviews the conflicting case law and concludes that aiding and abetting the offence of conspiracy is restricted to the former. Trieu was added to CRIMJI 5.00 (Aiding and Abetting), note (6) and CRIMJI 6.18 (Conspiracy), note (9) to reflect this holding. CRIMJI 5.01 Common Unlawful Purpose: A new User Note was inserted before paragraph 32 to reflect the holding in R. v. B. (S.R.) (2009), 243 C.C.C. (3d) 419 (Alta. C.A.) dealing with the requirements for withdrawal or abandonment of a common unlawful purpose. While the Court in B. (S.R.) acknowledged that fear does not operate to dispense with the requirement for unequivocal communication by words or actions of the accused s abandonment of the common unlawful purpose, all the circumstances of the case, including the fact that the accused may have put her own life in jeopardy by a vigorous and express statement of withdrawal, are relevant in assessing whether the accused s withdrawal was sufficiently communicated in the sense that it was neither practical nor reasonable for her to do more. CRIMJI 6.09 and 6.12 Attempts: New User Notes were added before the Introduction to CRIMJI 6.09 (Attempts) and CRIMJI 6.12 (Attempted Murder) to reflect the holding in R. v. Gordon (2009), 241 C.C.C. (3d) 388 (Ont. C.A.) that the doctrine of transferred intent does not apply to inchoate offences such as attempts, and in particular does not apply to the offence of attempted murder. CRIMJI 6.21 Criminal Negligence Causing Death/Bodily Harm: In 1987, in the concurrently decided cases of R. v. Tutton and R. v. Waite, the Supreme Court split three-to-three on whether the mens rea for the offence of criminal negligence required subjective fault, or whether objective fault would suffice. While appellate courts continued to apply an objective test, the matter was not expressly resolved by the Supreme Court until their decision in R. v. F. (J.) (2008), 236 C.C.C. (3d) 421 (S.C.C.), where the Court clearly held that criminal negligence can be established by proof of objective fault, without the need to establish subjective fault. The Instruction on the fifth ingredient of criminal negligence proof of wanton and reckless disregard for the lives or safety of others was rewritten to reflect this holding. CRIMJI 6.34A Driving Over 80 Causing Death/Bodily Harm: Very significant changes to the Criminal Code provisions dealing with alcohol and/or drug impaired driving came into force on July 2, One of those amendments was the creation of a new offence of causing an accident resulting in death/bodily harm while operating or having care and control of a motor vehicle with a blood-alcohol content over 80 mgs. We have added a CRIMJI Instruction to deal with this new complex offence. In addition, we have made various changes to CRIMJI 6.34 Impaired Driving Causing Death/Bodily Harm to reflect the evidentiary changes in the 2008 Criminal Code amendments. CRIMJI 6.48 Murder Section 229(c): A new User Note (4) was inserted before paragraph 25 to incorporate the holding in R. v. S-R. (J.) (2008), 237 C.C.C. (3d) 305 (Ont. C.A.), that an accused can be convicted of murder under s. 229(c) of the Criminal Code where the accused chooses to engage in a mutual gunfight between two rival gangs and a member of the other rival gang shoots at and misses the accused, but hits and kills an innocent bystander. The accused s conduct of engaging in a mutual gun battle constitutes a significant contributing cause of the bystander s death. While the bystander was not the intended target of the accused s unlawful object, the accused engaged in a mutual gun battle which he knew was likely to cause death to persons other than the intended targets. That conduct is sufficient to convict the accused under s. 229(c) as a principal offender for the murder of the bystander who was killed by a bullet fired by a member of the rival gang. CRIMJI 8.08 Automatism: Relevant extracts from R. v. Luedecke (2008), 236 C.C.C. (3d) 317 (Ont. C.A.) have been inserted in note (15) respecting whether somnambulism (in this case sexsomnia ) should be classified as mental disorder or non-mental disorder automatism. While the Court of Appeal sent the issue back to the trial judge for reconsideration, the Court made it clear that somnambulism should be classified as mental disorder automatism (i.e., NCRMD) in virtually all cases due to the inherent risk of its reoccurrence. CRIMJI 8.56 Self-Defence: R. v. Pilon (2009), 243 C.C.C. (3d) 109 (Ont. C.A.), was added to note (12) to reflect the Court s holding that the reasonableness standards in s. 34(2) of the Criminal Code should not be based on the attitudes and beliefs of the criminal sub-culture in which the accused lived,

3 whereby the motto kill now or be killed later may have prevailed. On the other hand, R. v. Raphael (2009), 242 C.C.C. (3d) 45 (Sask. C.A.), was added to note (40) to reflect the Court s holding that in considering whether the accused believed, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm, all circumstances of the accused s situation must be considered, including the fact that the accused was a prisoner on a range populated by a rival gang. CRIMJI 9.05 Unanimity: A small amendment was made to paragraph 3, and an addition was made to note (3), to clarify that the prevailing view is that juries should be told that they have the right to disagree. A new paragraph 3A and a new note (3a) were added to provide a more specific Instruction on the right to disagree where there are multiple counts or multiple accused. This Instruction makes it clear that when the jury agrees in respect of some counts or accused, but not in respect of others, they can return a partial verdict. CONTENTS 1. Jury Instructions Opening Comments to the Jury Panel Comments to the Jury After It Is Empanelled Comments to the Jury Before the Trial Commences 2. Instructions Given During the Course of the Trial Hearsay Conspiracy Trial Preliminary Warning Discharge of a Juror During the Trial Statement by Co-Accused Preliminary Warning Similar Facts Preliminary Warning Taking a View Preliminary Warning Children's Testimony Use of a Screen (s. 486(2.1)) Inadmissible Character Evidence Immediate Warning Inadmissible Evidence Immediate Warning 3. Abbreviated Final Jury Instructions 4. Introductory Instructions and Instructions on the Evidence Following the Submissions of Counsel A. Introductory Instructions Outline of Instructions Instructions to Be Considered as a Whole Functions of a Judge and Jury Presumption of Innocence Proof Beyond a Reasonable Doubt B. Instructions Usually Given In Every Trial Credibility of Witnesses Number of Witnesses Production of All Evidence Not Required Direct and Circumstantial Evidence Improperly Admitted Evidence Evidence Limited to a Specific Purpose C. Statements Made or Acts Done By the Accused Outside the Courtroom Admission or Confession of the Accused Post-Offence Conduct Other Wrongdoing by the Accused Pre-Trial Admissions of the Accused Against Interest Suggestions of Guilt to an Accused by a Witness D. Evidence of the Accused The Accused as a Witness Criminal Record of the Accused Character of the Accused Co-Accused Testifying Right to Silence Co-Accused Testifying Plea of Guilty Alleged Collusive Agreement Accused and Another Witness Testifying Charter, s. 13

4 E. Use of Evidence Tendered Other Than By a Witness Admissions-Facts Admitted by the Accused Weighing Testimony Read Into Evidence F. Expert Opinion and Non-Expert Belief Expert Evidence General Non-Expert's Belief G. Evidence of Recent Possession Recent Possession H. Identification Evidence Eyewitnesses and Line-ups Handwriting Comparisons DNA Identification I. Similar Fact Evidence Similar Facts Previous Acts Similar Facts Multiple Counts J. Children's Testimony Children's Testimony Unsworn Children's Testimony Sworn or Affirmed Children's Testimony Out-of-Court Statement Children's Testimony Videotaped Evidence Sexual Offences (s ) K. Credibility of Witnesses Cautions Character of a Crown Witness Collateral Matters Cross-Examination Criminal Record of a Witness Other Than the Accused Prior Inconsistent Statement of a Witness Cross-Examination Accused's Spouse Disclosure Privilege Untrustworthy Witnesses Accomplice Vetrovec Warning L. Hearsay Dying Declaration Hearsay Evidence Statement by Deceased Victim to Others Well Prior to Victim's Death Hearsay Evidence Prior Consistent Statements Narrative Sexual Assaults Hearsay Evidence Out-of-Court Statement Made to a Witness Person Who Made Statement Not Called Recent Fabrication Defence Witness Crown Rebuttal M. Tape and Videotape Recordings Tape Recordings Videotaped Evidence Mentally or Physically Disabled Persons Sexual Offences (s ) N. Motive of Accused or Complainant Motive and Opportunity Accused Motive of Complainant Civil Action Against Accused O. Instructions Special Procedural Provisions Criminal Code Provisions Handing to the Jury Failure of the Defence to Cross-Examine a Crown Witness 5. Parties to Offences Aiding and Abetting (s. 21(1)(b) and (c)) Common Unlawful Purpose (s. 21(2)) Counselling (s. 22) 6. Offences Accessory After the Fact (ss. 23, 592) Arson Disregard for Human Life (s. 433)

5 Arson Damage to Property (s. 434) Arson Threatening Health, Safety, or Property (s ) Arson For Fraudulent Purpose (s. 435) Arson By Negligence (s. 436) Possession of Incendiary Material (s ) Assault (ss. 265, 266, 267, 268) Attempt General (ss. 24, 463, 660, 661) Attempted Murder (s. 239) Breaking and Entering with Intent (s. 348) Conspiracy (s. 465) Criminal Negligence Causing Death/Bodily Harm (ss. 220, 221) Dangerous Driving Causing Death/Bodily Harm (s. 249) False Pretences (ss. 361, 362) Forgery (s. 366) Fraud (s. 380) Impaired Driving Causing Death/Bodily Harm (ss. 253(a), 255(2), 255(3)) Driving Over 80 Causing an Accident Resulting in Death/Bodily Harm (ss. 253(1)(b), 255(2, 1), 255(3, 1)) Kidnapping (s. 279(1)) Manslaughter by Unlawful Act (ss. 222, 234, 236) Murder First Degree (s. 231) Murder Section 229(a) Murder Section 229(c) Perjury (ss. 131, 132, 133) Possession for the Purpose of Trafficking (C.D.S.A., s. 5) Possession of Property Obtained by an Offence (s. 354) Robbery (s. 343) Sexual Assault (ss. 265, 271, 272, 273) Theft (s. 322) Trafficking in a Controlled Substance (C.D.S.A., s. 5) Unlawful Confinement (s. 279(2)) Unlawfully Causing Bodily Harm (s. 269) 7. Included Offences 8. Defences Accident or Lack of Intent Alibi Automatism Compulsion (s. 17) Defence of House or Real Property (s. 41) Duress Unfit to Stand Trial on Account of Mental Disorder (ss to ) Mental Disorder at the Time of the Offence (ss. 16, 614) Intoxication Alcohol/Drugs Justification for the Use of Force (s. 25) Mistake of Fact Honest Belief Necessity Provocation (s. 232) Self-Defence (s. 34) Self-Defence (s. 35) Self-Defence and Defence of Others (s. 37) 9. Closing Remarks Summary of the Positions of the Crown and the Defence Verdict List of Possible Verdicts Verdict Sheet Duty of the Jury to Deliberate Together Unanimity Further Instructions on the Law

6 Further Instructions on the Evidence 10. Post-Charge Instructions Exhortation to a Hung Jury Failure of the Accused to Testify Request for Further Instructions on the Law, a Rehearing of the Evidence, or a Rehearing of Counsel's Submissions Sentencing Recommendation of the Jury (ss , 745.3) Thanks to the Jury 11. Parole Ineligibility Judicial Review Opening Comments to the Jury Panel (s ) Comments to the Jury After It Is Empanelled (s ) Opening Comments to the Jury Before the Hearing Commences (s ) Final Instructions to the Jury (s ) Questions for the Jury (s ) Appendices FEATURES This two-volume reference features: annual updates tables of cases and statutes comprehensive index looseleaf format with tab indexing EDITORIAL BOARD The Honourable Mr. Justice James L. Brunton Superior Court of the Province of Quebec, Montreal The Honourable Mr. Justice Frank Caputo Ontario Superior Court of Justice, Sudbury The Honourable Madam Justice Elizabeth A. Hughes Alberta Court of Queen's Bench, Calgary The Honourable Madam Justice Anne W. MacKenzie Supreme Court of British Columbia, New Westminster The Honourable Mr. Justice Colin McKinnon Ontario Superior Court of Justice, Ottawa The Honourable Mr. Justice M.J. Moldaver Court of Appeal for Ontario, Toronto The Honourable Madam Justice Catherine A. Ryan Court of Appeal for British Columbia, Vancouver AUTHORS Professor Gerry A. Ferguson Faculty of Law, University of Victoria, Victoria The Honourable Mr. Justice Michael R. Dambrot Ontario Superior Court of Justice, Toronto The Honourable Madam Justice Elizabeth A. Bennett Court of Appeal for British Columbia, Vancouver The authors gratefully acknowledge their indebtedness to Mr. Justice John C. Bouck of the Supreme Court of BC who was the founder and co-author of CRIMJI from 1987 to CLEBC LEGAL EDITOR Laura C. Selby lselby@cle.bc.ca CLEBC REFUND AND CANCELLATION POLICY: Course fee is refundable (less $50) if notice is received 5 business days (10 business days for Limited Enrolment courses) before the course. CLEBC reserves the right to cancel or reschedule courses, refuse admission, or change speakers, location, or content. Books in new condition are returnable within 30 days of invoice date.