Last week our Court of Appeal put an end to a faulty and unfair jury instruction that has plagued our province for far too long. The result will be fairer jury charges for accused persons and, as a natural by-product, a reduced risk that the justice system will result in miscarriages of justice. What jury instruction was in issue, and why was it so unfair? The issue concerns statements made by the accused that contain both incriminating and exculpatory elements, and are sometimes loosely referred to as a "mixed statements".
Sometimes the Crown leads evidence of what are called "mixed statements" by the accused. A mixed statement is a statement that contains both incriminating and exculpatory aspects. The Crown will usually seek to rely on the incriminating aspects and argue that the exculpatory facets are false, while the defence will often seek to do exactly the opposite.
Over the last several years there has been a debate in B.C. as to the proper jury instruction regarding a mixed statement. Some courts have utilized an instruction, imported from a U.K. case called R. v. Duncan (1981), 73 Cr. App. R. 359 (C.A.), in which the jury is told that: (a) incriminating statements are likely true, otherwise why would the accused make them?; whereas (b) exculpatory statements do not carry the same weight. This instruction is currently recommended in the leading jury instruction text in B.C., called CRIMJI. Importantly, it has been endorsed in two fairly recent Court of Appeal cases: R. v. Harrison (2001), 156 C.C.C. (3d) 117 at 143-144 (B.C.C.A.), and R. v. Rojas (2006), 208 C.C.C. (3d) 13 at 39-42 (B.C.C.A.).
Counsel at GFN have always contended that the "Duncan" instruction is unfair. Its effect is to predispose the jury in favour of the Crown and against the defence. It is an extraordinary instruction when one considers that trial judges virtually never instruct juries that, as a matter of law, they should lean towards accepting as true facts that are supportive of guilt. It undermines the presumption of innocence and erodes the standard of proof that requires the Crown to establish guilt beyond a reasonable doubt in order to obtain a conviction.
The GFN view of the matter is supported by the fact that, with the exception of the two afore-mentioned B.C. cases and some obiter comments in Manitoba, no appeal decision in Canada endorses the Duncan instruction. The influential jury instruction manual authored by Justice David Watt, Ontario Specimen Jury Instructions, does not recommend its employment. Tellingly, the Duncan instruction has been expressly rejected by the Ontario and Quebec Courts of Appeal in R. v. Samuels (2005), 196 C.C.C. (3d) 403 (Ont. C.A.), and R. v. Leblanc (2001), 162 C.C.C. (3d) 74 (Que. C.A.), respectively.
Surprisingly, in light of the recent decisions to the contrary in Harrison and Rojas, last week our Court of Appeal released a decision called R. v. David, 2006 BCCA 412, which holds that the "Duncan" instruction should no longer be employed in this province. While the Court valiantly attempted to distinguish Harrison and Rojas, at the end of the day it concluded, full stop, that "the instruction should not be given to a jury" (paragraph 42). The Court aptly noted that "it is dangerous for a trial judge to instruct a jury that inculpatory and exculpatory statements ought to be weighed differently. trial judges should leave such 'common sense' arguments to the lawyers in their closing addresses" (paragraph 42).
David is a welcome decision in this province, and finally lays to rest a flawed jury instruction that was, plain and simple, patently unfair.
