R. v. Gordon: Jury Instructions to Remedy Trial Issues

The Court of Appeals decision in R. v. Gordon, 2012 ONCA 533, demonstrates how jury instructions can be given to jurors to remedy issues that may have arose during a trial.  In Gordon the Crown was found to have engaged in improper cross-examination as well as having improperly invited the jury to draw an inference against the accused’s credibility due to him being subject to disclosure and hearing the evidence at his trial before giving his own testimony.  The Court of Appeal, in dismissing the appeal, found that the trial Judge was able to remedy both issues through an instruction to the jury:

THE CROWN’S CROSS-EXAMINATION

[5]          Parts of Crown counsel’s cross-examination can be characterized as tedious.  Other parts were irrelevant and still others were improper.  We are not satisfied, however, that Crown counsel’s cross-examination could, in any way, have compromised the appearance of trial fairness.  We come to that conclusion not only because of the nature of the cross-examination itself, but also because the trial judge addressed, in a timely and emphatic way, the various transgressions during the cross-examination of the appellant.  The trial judge’s interventions cured any potential problem.

THE CROWN’S IMPROPER REFERENCE TO DISCLOSURE IN HIS CLOSING ADDRESS

[6]          Crown counsel at trial (who was not counsel on appeal) seemed to invite the jury at one point in his closing to draw an inference against the appellant’s credibility because the appellant had the benefit of full disclosure and hearing the Crown’s case before testifying.  At the outset of his charge to the jury, the trial judge emphatically advised the jury that no such inference could be drawn.  The trial judge made it crystal clear to the jury that they should disregard that submission and that the appellant, like all accused, was constitutionally entitled to disclosure and to know the case for the Crown before testifying.  Once again, the trial judge’s intervention avoided any potential prejudice to the accused.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.

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