Assessing the Evidence of One Accused Against Another in Cut-throat Defence

Our latest Canlii Connects case summary looks at a recent decision from the Alberta Court of Appeal (R. v. Whiskeyjack, 2022 ABCA 76) where a trial judge erred in their instructions to the jury on how they were to assess the evidence of one accused who pointed the finger at his co-accused.

Issue: Did the trial judge err in their instructions to the jury on their consideration of Mr. Whiskeyjack’s credibility?

Facts: Mr. Whiskeyjack and a co-accused were charged with second-degree murder. Mr. Whiskeyjack testified at trial and pointed the finger at his co-accused. The trial judge instructed the jury as follows:

Julian Whiskeyjack testified that his co-accused Jena Hunter along with Jermaine Steinhauer threw Lindsay Jackson off the Duvernay Bridge while denying that he did so. As with all witnesses, you may believe all, some, or none of his testimony… You must consider his testimony with a great deal of caution, for in implicating Jena Hunter, he may be seeking to deflect attention from his own responsibility for what occurred. You will consider his testimony in the context of all of the evidence. You may consider his testimony in deciding the case against not only himself but Jena Hunter as well: TR at 655/29-656/3 (emphasis added).

Mr. Whiskeyjack was convicted. 

Ruling:  The Court allowed the appeal, set aside the conviction and ordered a new trial.

When an accused mounts a cut-throat defence it can present various challenges. In this case the trial judge erred in not distinguishing between how the jury was to approach an assessment of the appellant’s evidence in their consideration of the guilt of the co-accused and the appellant himself.  

The worry when one accused points the finger at another is that they may be falsely implicating the co-accused to escape liability themselves. That prospect required that the appellant’s testimony be assessed with caution when considering the case against the co-accused. The jury should usually be advised of that. But when such an instruction is given, the jury should also be told that no such concern applies when considering the case against the appellant.

The failure to distinguish between these two positions left the jury with the impression that the appellant’s testimony could be relied upon by them in deciding the case against him but only after being assessed with “a great deal of caution”; in other words, only after being subjected to special scrutiny. That placed a higher burden of proof on the appellant, as the accused, than the law imposes. In that way it undermined the presumption of innocence. To that extent, the instruction was in error.