Jury Charges: The Legal Instruction Booklet - Part 2

In the second part of our look at the trial judge’s charge to the jury we will discuss the substance of the charge. Specifically, how are decisions made about what defences or possible verdicts are explained to the jury.

All defences that have an “air of reality” are to be put to the jury.

There is a two‑pronged question for determining whether there is an evidential foundation warranting that a defence be put to a jury.  The question is whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. 

In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true.  The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence.  That question is reserved for the jury.  The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences.  Nor is the air of reality test intended to assess whether the defence is likely to succeed at the end of the day.  The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. In the end, the question is whether there is some evidence to support the defence. Thus, the term “air of reality”.

Ultimately the content of the charge is up to the trial judge so there is an obligation to explain defences to the jury that may arise on the evidence even if those defences weren’t raised by the lawyers.

A trial judge is also allowed to explain an alternative defence that is at first glance incompatible with the primary defence. The issue is not whether such a defence is compatible or incompatible with the primary defence, but whether it meets the air of reality test.

All potential verdicts should be left with the jury.

While it may initially seem simple to determine which possible verdicts ought to be left with the jury this is not always the case. Many charges have included offences. An easy example would be assault causing bodily harm. If the Crown proves the assault but not bodily harm then the appropriate verdict would be not guilty of assault causing bodily harm but guilty of the lesser included offence of assault. Not surprisingly, not all examples are so easy. Whether a verdict in relation to an included offence ought to be left with the jury involves a determination of whether that verdict is reasonably available. 

In relation to the substance of the charge the trial judge and lawyers must think through all reasonable possible interpretations of the evidence and what arises from them. In performing their role as judges of the facts to determine guilt or innocence the jury must be provided with all reasonable possible results and defences so that the accused’s guilt or innocence is fairly and accurately determined.