National Post (National Edition)
Top court to judges: Keep it simple
Judges are sometimes so over-complicating their instructions to juries that they become “all but meaningless,” the Supreme Court of Canada says.
Justice Michael Moldaver, in a decision released Friday, was writing for a unanimous court in a case where the trial judge’s “charge,” as such instructions to juries are called, directly led to the high court confirming the need for a new trial.
But more broadly, Moldaver said in his usual plain language, he has “concerns about the proliferation of long and unnecessarily complex jury charges.
“The jury charge in this case spans over 200 pages and took a full day to present in court,” he said, and having read it in full, “I feel obliged to comment on the detrimental impact that increasingly long and complex jury charges are having on our criminal justice system.”
In late 2011 in Oshawa, Jason Rodgerson was convicted by a jury of second- degree murder in the Oct. 26, 2008, death of 21-year-old Amber Young.
He was later sentenced to 14 years in prison by Ontario Superior Court Judge J. Bryan Shaughnessy.
But the conviction was overturned at the Ontario Court of Appeal last year, and a new trial ordered — a finding now upheld by the Supreme Court for similar reasons.
Both courts found that Shaughnessy’s key mistake was in failing to tell jurors they couldn’t use the fact that Rodgerson ran from and then lied to police to establish that he had the required state of mind for murder.
But the judge also made an important error of omission — not telling the jurors that by Rodgerson burying Young’s body in his backyard and dousing it with bleach and by making extensive cleanup efforts, they were entitled to draw an inference that he wasn’t attempting to hide just the crime, but also the violence of Young’s death and thus suggesting, potentially, that he’d intended to kill her.
At no point, Moldaver said, did the judge “assist the jury in understanding how it could use the concealment and cleanup evidence in determining whether Mr. Rodgerson had the requisite intent for murder.”
Moldaver said bluntly the “basic facts” of Ms. Young’s death were not disputed at trial: Rodgerson’s claim that he acted in self-defence and the Crown’s contradictory theory “were both clear and readily comprehensible.
“In my respectful view, the length, repetitiveness and complexity of the jury charge were unwarranted.”
Interestingly, while Moldaver held that the judge was chiefly to blame for the “unwieldy final product” that were the lengthy instructions, he said the Crown prosecutor and defence lawyer at trial also had some responsibility.
For instance, he said, prosecutors insisted on charging Rodgerson with first-degree murder and pursuing a conviction on that charge — yet the evidence for it was “paper thin.”
Because prosecutors persisted with the first-degree charge, it meant the judge had to include instructions on each of the four separate theories of first-degree murder that they advanced — that Rodgerson had killed her intentionally either during a sexual assault or an attempted one or during a forcible con- finement or an attempted one.
“This increased the length of the jury charge by almost 40 pages,” Moldaver said, adding dryly that “some semblance of a cost-benefit analysis” with such marginal charges “would serve the justice system well.”
Trial judges should feel free, he said, to question prosecutors “about the efficacy of proceeding” in such cases.
Similarly, he said, while Rodgerson claimed he acted in self-defence and that Young’s death was an accident, “this simple narrative generated jury instructions” that weren’t necessary.
That ate up, Moldaver said, “nearly a quarter of the jury charge.”
He said while the first obligation for defence lawyers is of course to vigorously defend their clients, they also have “an obligation to assist the trial judge in crafting a jury charge that provides clear and comprehensible instructions … Had that been done here by defence counsel at trial, the charge could have been shortened by nearly 50 pages.”
In the final analysis, he said, the duty of a trial judge is to “decant and simplify” things for jurors, not simply recite (as they used to do) appellate decisions verbatim or so-called model jury instructions (as they do now) in order to “safeguard their verdicts” from appeal.
Such manuals are meant as guidelines, tailored to the circumstances of specific cases, not hard-and-fast dogma meant to be tossed up holus bolus at a jury, Moldaver said.
Trial judges, in other words, are meant to “separate the wheat from the chaff,” not sim- ply regurgitate either previous decisions or sample instructions.
“In the present case,” he said, “a few modest alterations would have saved this jury charge from legal error.
“At the same time, a great many of the instructions that were included could and should have been removed.”
A better-focused set of instructions would benefit all the players, he said, and while he acknowledged “such an everybody-wins approach is easier said than done … I remain firmly of the view that ‘common sense and the law need not be strangers.’”
There was no dispute at trial that Rodgerson had caused Young’s death.
The two met in a bar, drank and shared drugs, then returned to Rodgerson’s house for what he said was consensual sex. It was during a quarrel about money that, he said, she came at him with a knife and they fought, and during the struggle, he pressed down her face with his forearm.
He then passed out, Rodgerson said, and woke to find her dead.
Speeding up the pace of the justice system is no small matter.
By the time a second trial is likely to take place for Rodgerson, seven years will have elapsed since Young’s death.
Earlier this week, the Supreme Court dismissed an application for appeal in a case that dates back twice that long — the Dec. 24, 2001 arson of a Toronto building supply store that killed a man.