R. v. Ménard, [1998] 2 S.C.R. 109

Stéphane Ménard Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Ménard

File No.: 25707.

1998: March 26; 1998: July 9.

Present: L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Charge to jury ‑‑ Evidence of post‑offence conduct ‑‑ Whether trial judge should have instructed jury to apply reasonable doubt standard to evidence of accused’s post‑offence conduct.

Criminal law ‑‑ Charge to jury ‑‑ Format ‑‑ Splitting of jury charge over course of trial ‑‑ Distribution of transcripts of charge to jury ‑‑ Whether format of jury charge or distribution of transcripts gave rise to reversible error.

The accused was charged with second degree murder and the sole issue at his trial was whether he was the person who had killed the victim. The case against the accused was largely circumstantial, and included evidence that he made false statements to the police after the murder, that he tried to dispose of the victim’s blood‑stained car and his own blood‑stained clothing, and that he attempted to flee from the area where he had concealed those items of evidence. The accused testified that he had acted solely out of fear that he would be linked to stolen property; he denied any involvement in the murder. The trial judge gave his instructions in segments throughout the trial and provided the jury with written transcripts of the various portions of his charge as he delivered them. The accused was convicted and the Court of Appeal affirmed the conviction. This appeal raised two main issues: (1) whether the trial judge should have instructed the jury not to draw any inference of guilt from the accused’s post‑offence conduct unless they were satisfied beyond a reasonable doubt that the conduct was motivated by the accused’s consciousness of guilt for having murdered the victim, rather than by some other cause; and (2) whether the trial judge committed reversible error by delivering his instructions to the jury, both orally and in writing, in several segments throughout the trial rather than at the conclusion of the evidence and arguments.

Held: The appeal should be dismissed.

The standard of proof beyond a reasonable doubt applies only to the jury’s final evaluation of guilt or innocence and is not to be applied piecemeal to individual items or categories of evidence. There is no principled reason to create an exception to this rule for evidence of post‑offence conduct, particularly where such evidence is subject to competing interpretations and is not, in itself, crucial to the determination of the ultimate issue. In this regard, the trial judge’s charge complied with the applicable principles. Had the trial judge directed the jury at the outset to subject the evidence of post‑offence conduct to the standard of proof beyond a reasonable doubt, he would have been in error.

The format of a charge is a matter of discretion. What is crucial is that, at the conclusion of the charge, the jurors understand the nature of their task and have the necessary help from the instructions to carry it out. While the innovations undertaken by the trial judge were designed to improve the overall clarity of his instructions, certain aspects of the charge raise serious concerns. The distribution of transcripts, though not erroneous in itself, can easily give rise to reversible error in the event the jury receives only part of the trial judge’s instructions in written form. Any trial judge adopting such an approach must take care to ensure that the entire charge is provided to the jury in a clear and legible form, and that all the jurors are capable of reading the materials. Likewise, instructing the jury in segments throughout the trial does not necessarily constitute error but it does increase the risk that the jury might be confused by erroneous statements of law at the outset of the trial or by instructions which are not ultimately related to any of the evidence introduced in the case. When the jury charge is delivered piecemeal over the course of the trial, corrections of any errors the trial judge may previously have made become markedly more difficult. In this case, the trial judge erred in his preliminary instructions regarding the substantive law of murder, but this error did not merit a reversal of the accused’s conviction since the question of murder was not a live issue in the trial. In addition, the second segment of the charge was overinclusive, since it addressed the use of prior inconsistent statements of an accused, even though it was not yet known whether the accused would testify, let alone whether he would be confronted with prior statements. The trial judge corrected this problem in his closing address by directing the jury to disregard his earlier comments on prior inconsistent statement by an accused. As a last remark, even if it is assumed that the jury followed the trial judge’s instructions and reread their written transcripts concerning the fundamental principles of reasonable doubt, the presumption of innocence and the burden of proof, it would have been better for the trial judge to repeat that portion of his instructions and thereby ensure that he was sending the jury into deliberations with those principles fresh in their minds. In spite of these criticisms, the charge taken in its entirety in the circumstances of this case did not result in any miscarriage of justice.

Cases Cited

Applied: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, aff’g (1996), 1996 CanLII 3013 (ON CA), 108 C.C.C. (3d) 1; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; not followed: R. v. Court (1995), 1995 CanLII 1741 (ON CA), 99 C.C.C. (3d) 237; referred to: R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633; R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915; Cathro v. The Queen, 1955 CanLII 46 (SCC), [1956] S.C.R. 101.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, s. 229.

Authors Cited

Soublière, Hector. “Instructing the jury: A plea for better trials”, Law Times, vol. 6, No. 36, October 30 ‑ November 5, 1995, p. 6.

APPEAL from a judgment of the Ontario Court of Appeal (1996), 1996 CanLII 685 (ON CA), 108 C.C.C. (3d) 424, 29 O.R. (3d) 772, 92 O.A.C. 43, [1996] O.J. No. 2453 (QL), dismissing the accused’s appeal from his conviction on a charge of second degree murder. Appeal dismissed.

Clayton C. Ruby and Jill Copeland, for the appellant.

Gary T. Trotter and Trevor Shaw, for the respondent.

//Major J.//

The judgment of the Court was delivered by

1 Major J. -- The appellant, Stéphane Ménard, was convicted of second degree murder in the death of Octavio Velasquez, a Montreal taxi driver. The case against Ménard was largely circumstantial, and included evidence that Ménard made false statements to the police after the murder, that he tried to dispose of the victim’s blood-stained car and his own blood-stained clothing, and that he attempted to flee from the area where he had concealed those items of evidence. At trial, Ménard contended that he had acted solely out of fear that he would be linked to stolen property; he denied any involvement in the murder.

2 This appeal has two main issues. The first is whether the trial judge should have instructed the jury not to draw any inference of guilt from Ménard’s post-offence conduct unless they were satisfied beyond a reasonable doubt that the conduct was motivated by Ménard’s consciousness of guilt for having murdered Velasquez, rather than by some other cause. That issue is addressed in this Court’s decision in R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, which is being released simultaneously with the decision in this appeal. The second issue concerns the format of the trial judge’s charge to the jury. The appellant submits that the trial judge committed reversible error by delivering his instructions to the jury, both orally and in writing, in several segments throughout the trial rather than at the conclusion of the evidence and arguments.

I. The Facts

3 On April 12, 1991, a Montreal taxicab was found submerged in the Madawaska River near Arnprior, Ontario. The body of the taxi’s driver, Octavio Velasquez, was only discovered two months later in a secluded area several kilometres away. An autopsy revealed that Velasquez had died from multiple stab wounds to the back. There was no question that Velasquez had been murdered; the sole issue at trial was whether Ménard had killed him.

4 At about 2:00 p.m. on April 12, Jack Schultz, a worker at a water filtration plant in Arnprior, saw a taxicab driving near the Madawaska River, and several minutes later he heard a splash. When he approached the riverbank he observed a car sinking into the water and saw the appellant standing nearby with a duffle bag and a bundle of white clothing. Schultz called the police; they arrived some three minutes later.

5 Constable Nicholas of the Ontario Provincial Police saw the partly submerged taxi, and Ménard crouching at the top of a hill. He called for Ménard to come down and proceeded to question him about what had happened. Ménard stated that he had been hitchhiking from Ottawa and was picked up by a man named Phil, who was drinking alcohol and driving “crazy”. Phil allegedly stopped the car at the top of the hill above the river, told the appellant “[t]he ride ends here, get out”, and then drove the car into the water and ran away. Ménard gave a description of Phil and indicated the direction in which Phil had allegedly fled on foot.

6 Other officers soon arrived on the scene. They examined the area where the car had entered the water and found one set of footprints, which did not head in the direction of Phil’s ostensible flight from the scene. The police climbed to where the appellant had been crouching and located a bundle of wet clothes, consisting of a white trench coat, a pair of jeans, socks and black boots. The coat and jeans were stained with blood. In the pocket of the jeans, Constable Nicholas found a ledger sheet in Ménard’s name from a military credit union. He asked Ménard who owned the wet clothes. Ménard initially claimed that they were Phil’s; however, when confronted with the ledger sheet, he admitted that the jeans were his but maintained that the rest of the clothing belonged to Phil. Constable Nicholas arrested Ménard for possession of a stolen car.

7 When the taxicab was removed from the river, blood stains were found on the driver’s seat and headrest as well as on the floor around the driver’s seat. Forensic tests revealed that those stains were consistent with the victim’s blood group, which was shared by only 0.83 percent of the population. Stains consistent with the victim’s blood were also found on Ménard’s jeans and on the other clothing retrieved from the hill where Ménard had been crouching, as well as on underwear that Ménard had in his duffle bag. The back of the reversible cap that Ménard carried in his pocket also had approximately 40 spatter stains on it. A black-handled knife, in its sheath, was recovered from the river near where the taxicab had been found. No forensic evidence was introduced to connect the knife to the appellant.

8 After the body of Octavio Velasquez was discovered on June 9, 1991, Constable Nicholas took soil samples from the area where the body was found. He also took soil samples from the area where the wet clothing was found and where the taxicab entered the river. These various samples were analysed by a forensic geologist, William Graves, who also examined some debris brushed from Ménard’s boots. It was concluded that part of the debris from the boots was indistinguishable from the body-site soil samples.

9 In addition to the foregoing circumstantial evidence, the Crown also introduced identification evidence from several motorists who testified to seeing a Montreal taxicab on the highway between Montreal and Ottawa. Only one of these witnesses, Sidney Ritchie, actually placed Ménard in the taxicab with the deceased. Ritchie’s evidence was challenged at trial on the ground that Ritchie had failed to pick the appellant out of a photo lineup and had only been able to make a positive identification at the preliminary inquiry, when the appellant was the only man in the room aside from counsel and court staff. Moreover, Ritchie had been advised at that time that the appellant was the person charged with the murder.

10 At his trial, Ménard gave a different version of events from what he had told Constable Nicholas at the time of his arrest. He testified that he had been hitchhiking from Montreal when he was picked up by Phil, who was driving a Montreal Co-op Taxi. Phil allegedly drove the taxi for five or ten minutes, then pulled over, told the appellant to keep the car, and left in another car that had pulled up behind the taxi. When Phil stepped out of the taxi, Ménard allegedly noticed that Phil’s back was spotted with blood and that some brown staining was also visible on the driver’s seat. Ménard testified that he assumed the car must have been stolen by Phil; nevertheless, he got into the driver’s seat and drove on because he did not know what else to do. After driving for a short period of time, he allegedly stopped in the parking lot of a shopping mall and concluded that he had made a bad decision. His own clothes were now stained from sitting in the driver’s seat and he was nervous about being in possession of the taxi. He decided to dispose of the vehicle, and did so by pushing it into the nearby Madawaska River. Ménard admitted that he had initially lied to Constable Nicholas about owning the blood-stained clothes and about pushing the taxi into the river, but he testified that he had done so because he panicked.

II. Judicial History

A. Ontario Court (General Division)

11 The trial judge delivered his instructions to the jury in four parts. At the outset of the trial, he gave an address in which he described the trial process and explained basic evidentiary principles such as the presumption of innocence and the burden of proof. In addition to those preliminary matters, he also charged the jury on the substantive law of murder. Before doing so, however, he stressed that the evidence in the case had not yet been presented and that his instructions might have to be amended later. He stated:

I will shortly be instructing you as to the law concerning the offence in this matter. I point out that at most trials, this is not done until the conclusion of the evidence at the trial judge’s charge. I happen to think that it makes it more difficult for you if you don’t know what the law is from the start.

I want you to appreciate another fact, that insofar as the evidence and the facts of this case, I am as much in the dark as you are. I did not know a thing about this case until this morning. What I do know about it is very little. So what I am charging you on the law is without the benefit of having heard the evidence and the testimony. It may be that once the trial has been concluded and I have heard the evidence, I may want to change certain of my instructions in this regard or make them more complete or edit. If that is so, be mindful of it and I will point that out to you in my closing charge. In such an event, of course, you should be governed by my closing comments.

The trial judge then referred to the indictment and instructed the jury on the definition of murder under s. 229 of the Criminal Code, R.S.C., 1985, c. C-46. In so doing, he discussed the so-called “objective branch” of liability under s. 229(c) of the Criminal Code; it is common ground that this portion of the instruction was error, since s. 229(c) had been struck down by this Court some three years earlier in R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633. The judge subsequently distributed a transcript of his opening address to the members of the jury.

12 At two points during the evidence, additional instructions were provided to the jury. The first was a detailed charge concerning the use of prior inconsistent statements. It was given following the cross-examination of the eyewitness Ritchie, who had been confronted on the stand with his preliminary inquiry testimony. The second instruction given during the course of the trial concerned the use of evidence of prior convictions; it followed the cross-examination of Ménard, who had been asked about his criminal record. As with the opening address, these two instructions were subsequently distributed to the jury in written form.

13 At the conclusion of the trial, the trial judge gave a short charge in which he declined to repeat his previous instructions, and instead directed the jury to review their transcripts. He stated:

My only comment is this: Start off your deliberations by reading them again so that they will be fresh in your mind, particularly the following: one, you are the sole judges of the facts; two, be impartial; three, the burden of proof on the Crown and the presumption of innocence.

The judge made several small corrections to his earlier instructions. In particular, he advised the jury to disregard his remarks with respect to prior inconsistent statements by the accused, since that issue did not ultimately arise in the trial. He did not, however, amend his discussion of the substantive law of murder, nor did he review in any detail the basic evidentiary principles which he had set out in his opening address. The judge then turned to several “new matters”. He reviewed the evidence presented in the case -- particularly the eyewitness evidence and the evidence of Ménard’s post-offence conduct -- and briefly summarized the basic theories of the defence and the Crown. He did not direct the jury to apply a reasonable doubt standard separately to the evidence of post-offence conduct.

14 The jury were provided with photocopies of the judge’s handwritten notes for the final portion of his charge. Although those copies were more difficult to read than the typed transcripts of the earlier sections of the charge, they were legible and contained substantially everything that the judge had stated orally to the jury. The jury returned a verdict of guilty on the charge of second degree murder.

B. Ontario Court of Appeal

15 Ménard’s appeal from his conviction was dismissed by the Ontario Court of Appeal: (1996), 1996 CanLII 685 (ON CA), 108 C.C.C. (3d) 424 (Arbour, Labrosse and Weiler JJ.A.). The appeal rested on several grounds. With regard to the format of the jury charge, Ménard contended that the trial judge erred by giving his instructions in segments throughout the trial and by providing written transcripts of the various portions of his charge as he delivered them. Arbour J.A., writing for the Court of Appeal, criticized those practices but found that they did not give rise to reversible error. Specifically, she held that while the distribution of transcripts could have been fatal had the trial judge provided only an incomplete written portion of his charge, in this case the jury received all of the instructions in writing. With respect to the splitting of the jury charge over the course of the trial, the Court of Appeal recognized a more serious danger, namely, that an error of law made in an early portion of the charge might never be adequately corrected later. Arbour J.A. noted that the trial judge did in fact make an error of law in the early portion of his charge, in his discussion of the definition of murder. However, it concluded at p. 432:

. . . the error was harmless since there was never a live issue that a murder was committed. The case was a simple one. The only issue for the jury to determine was whether the appellant was the person who murdered the deceased.

The Court of Appeal also noted that the trial judge’s mid-trial instructions addressed matters that did not ultimately arise in the case, and might have been confusing to the jury. Again, however, it found that this did not constitute reversible error. Overall, the Court of Appeal concluded at p. 433 that the approach taken by the trial judge “met the essential requirements of a proper jury charge” and did not occasion any miscarriage of justice.

16 Ménard raised two objections regarding the substance of the jury charge. First, he asserted that the trial judge erred by failing to emphasize the frailties of the identification evidence led by the Crown, particularly the evidence of the eyewitness Ritchie. The Court of Appeal agreed that “this evidence should have been reviewed by the trial judge and that the unusual aspect of Ritchie’s evidence should have been expanded upon” (p. 437). However, it concluded that the identification evidence “formed a small part of an overwhelming case against the appellant” and that “[e]ven if that evidence were to be entirely discarded, the result of the case would . . . inevitably be the same” (p. 437).

17 Second, Ménard argued that the trial judge erred by failing to instruct the jury, pursuant to R. v. Court (1995), 1995 CanLII 1741 (ON CA), 99 C.C.C. (3d) 237 (Ont. C.A.), that they should apply the criminal standard of proof in their evaluation of the evidence of Ménard’s post-offence conduct. The Court of Appeal rejected that argument, noting that Court had been overruled in R. v. White (1996), 1996 CanLII 3013 (ON CA), 108 C.C.C. (3d) 1 (Ont. C.A.). Arbour J.A. stated at p. 438:

The trial judge instructed the jury that they had to decide whether the evidence of lies told by the appellant to the police, of concealment of the car and of some clothes, and the evidence of flight, were indicative of efforts to conceal his role in the murder. In doing so, the trial judge said that they should consider his explanations, and, in the context of all the evidence, decide whether that evidence points to guilt or innocence. Without the benefit of the decision in Court and Monahan, the trial judge did not instruct the jury that they should be satisfied beyond a reasonable doubt that this evidence was indicative of a consciousness of guilt. Indeed the trial judge avoided altogether the language of “consciousness of guilt” and merely instructed the jury to draw whatever inference they saw fit, in all the circumstances, from that evidence. In light of the decision of this Court in R. v. White and Côté, supra, this ground of appeal must also fail.

18 Aside from those attacks on the jury charge, the appellant raised three additional grounds. He asserted that the trial judge erred by allowing an out-of-court examination of William Graves, the Crown’s expert soil analyst, to be introduced at trial in lieu of Graves’s testimony. The trial judge had admitted that evidence as Graves was too ill to testify and because the earlier examination had taken place under oath and had been subject to ample cross-examination. On the basis of those facts, Arbour J.A. for the court held that Graves’s evidence was admissible as an exception to the hearsay rule, since it met both the “reliability” and the “necessity” requirements set out in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, and R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915.

19 Ménard next contended that it was error for the trial judge to admit detailed evidence of his military training, his previous membership in the Airborne Regiment, and his familiarity with knives. He submitted that the real purpose of that evidence was to impugn his character and to demonstrate that he was “some sort of commando”. Arbour J.A. rejected that argument; she found that the evidence admitted was relevant to the narrative, and she concluded that it could have had no prejudicial impact on the decision of the jury to convict.

20 Finally, Ménard submitted that during cross-examination on his criminal record, Crown counsel improperly probed the details of a prior conviction, rather than simply asking the name of the offence, the date of the conviction and the sentence. Arbour J.A. agreed that such an attack on the credibility of an accused was serious and impermissible, but she found, once again, that in the context of the evidence as a whole, it was not overly prejudicial and created no miscarriage of justice. The appeal was dismissed.

III. Issues

21 (1) Did the Court of Appeal err in holding that the trial judge was not required to instruct the jury in accordance with Court, supra?

(2) Did the Court of Appeal err in holding that the format of the jury charge in this case did not give rise to reversible error?

IV. Analysis

A. Jury Instruction Regarding Evidence of Post-Offence Conduct

22 Ménard contends, as he did before the Court of Appeal, that the trial judge should have directed the jury to apply a separate standard of proof to the evidence of lies, flight and concealment. Specifically, he submits that the jury should have been told that unless they were satisfied beyond a reasonable doubt that the post-offence conduct was motivated by a sense of culpability for Velasquez’s murder and not by some other explanation, they could draw no inference of guilt from that conduct, and must set it aside and proceed to consider the balance of evidence in the case. Ménard relies on Court, supra. As stated, Court was overruled by the Ontario Court of Appeal in White, supra; however, Ménard contends that White was wrongly decided and that the Court of Appeal in this case erred in adopting its result.

23 That argument is without merit. An appeal from White was argued before this Court together with the present appeal, and was dismissed. Our reasons in White, released simultaneously with this decision, confirm that the standard of proof beyond a reasonable doubt applies only to the jury’s final evaluation of guilt or innocence and is not to be applied piecemeal to individual items or categories of evidence: see R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345. White also provides that there is no principled reason to create an exception to the rule in Morin for evidence of post-offence conduct, particularly where such evidence is subject to competing interpretations and is not, in itself, crucial to the determination of the ultimate issue. This Court concluded in White, supra, at paras. 56-57:

Much of the confusion in this area of the law stems from the practice of categorizing evidence of flight or concealment in terms of the conclusion which the Crown seeks to draw from it, namely that it establishes the “consciousness of guilt” of the accused. That inference, going as it does so directly to the ultimate issue of guilt, is properly to be drawn only at the end of the jury’s deliberations, once all the evidence has been considered. Hiving such evidence off at the outset and subjecting it to a separate reasonable doubt analysis creates a logical conundrum and raises the very real danger that the jury will never consider all the evidence together. . . .

. . . It is preferable simply, in the spirit of Morin, to leave evidence of flight or concealment evaluated, but somewhat at large until the final stage of putting all the evidence together and seeing if it proves the case beyond a reasonable doubt. As previously noted, there is a risk that juries might jump too quickly from evidence of post-offence conduct to an inference of guilt. However, the best way for a trial judge to address that danger is simply to make sure that the jury are aware of any other explanations for the accused’s actions, and that they know they should reserve their final judgment about the meaning of the accused’s conduct until all the evidence has been considered in the normal course of their deliberations. Beyond such a cautionary instruction, the members of jury should be left to draw whatever inferences they choose from the evidence at the end of the day.

24 The evidence of post-offence conduct in this appeal, as in White, was only one facet of the case against the appellant. The Crown also introduced evidence to establish, among other things, that Ménard had been seen on the highway in the victim’s taxi, and that at the time of his arrest Ménard’s clothes were stained with the victim’s blood, his boots contained traces of soil matching the site where the victim’s body was later found, and he was in possession of the victim’s car. In his charge to the jury, the trial judge emphasized that the evidence of post-offence conduct “may or may not point to guilt” and was “but another circumstance for you to consider”. After reviewing the explanations advanced by the defence with regard to each item of such evidence, he concluded on the subject as follows:

Whether the alleged false statements, hiding of evidence and flight are attempts by the accused to conceal his role in the murder is for you to decide. Remember that you must look at these matters in light of all the other evidence and that it is on the consideration of all the evidence that you decide whether the Crown has proved his guilt beyond a reasonable doubt.

25 The foregoing instruction comported in all respects with the requirements of Morin and with the principles set forth in this Court’s reasons in White. Had the trial judge directed the jury at the outset to subject the evidence of post-offence conduct to the standard of proof beyond a reasonable doubt, he would have been in error. Accordingly, this ground for appeal is dismissed.

B. Format of the Jury Charge

26 The format of the jury charge in this case was unorthodox. In particular, the trial judge departed from common practice by discussing substantive law at the outset of the trial, by distributing transcripts of his instructions to the members of the jury, and by declining at the end of the trial to review his preliminary remarks regarding basic evidentiary principles. The Court of Appeal expressed concern about the format of the trial judge’s instructions, but determined that no miscarriage of justice was occasioned in the circumstances of this case.

27 I agree with that conclusion and would dismiss this ground of appeal. However, a few general comments are appropriate with regard to the structure of the jury charge in this case. The Criminal Code does not dictate the manner in which a trial judge is to instruct a jury. Rather, the organization of the jury charge is a matter of common law and, like any area of common law, it is subject to innovation in the trial courts and may evolve over time. There are, necessarily, certain fundamental issues which every jury charge must address; these have been elaborated in various doctrines of this Court and do not have to be reviewed. As a general proposition the format of the charge is a matter of discretion. Trial judges have great latitude in deciding how to charge juries, and the structure of the charge may vary from one case to another. It is no secret that long and detailed instructions at the end of a trial may be more confusing than helpful. Trial judges should not be discouraged from taking new approaches in an effort to make their instructions more accessible to the jury. What is crucial is that at the conclusion of the charge the members of the jury understand the nature of their task and have the necessary help from the instructions to carry it out.

28 The innovations undertaken by the trial judge in this case were designed to improve the overall clarity of his instructions. As he told the members of the jury:

I’ve been sitting as a judge for about 15 years and I’ve become increasingly aware of the fact that we are making things difficult for our juries in criminal trials, particularly when trials are lengthy as this one is going to be. Accordingly, I’ve decided -- and this is over the past year -- to resort to different methods in order to make your task easier. For all I know, I don’t know of any other judges doing this in Canada.

See also Soublière J., “Instructing the jury: A plea for better trials”, Law Times, vol. 6, No. 36, October 30 - November 5, 1995, at p. 6. Notwithstanding that laudable intention, certain aspects of the jury charge here raise serious concerns that may create as many problems as they solve. As the Court of Appeal noted at p. 432, the distribution of transcripts, though not erroneous in itself, can easily give rise to reversible error in the event the jury receives only part of the trial judge’s instructions in written form: Cathro v. The Queen, 1955 CanLII 46 (SCC), [1956] S.C.R. 101, at pp. 114-15. Any trial judge adopting such an approach must take care to ensure that the entire charge is provided to the jury in a clear and legible form, and that all members of the jury are capable of reading the materials. It may well be that the dangers associated with such an approach outweigh the potential benefits.

29 Likewise, instructing the jury in segments throughout the trial does not necessarily constitute error, and may in fact be beneficial in certain circumstances. However, it does increase the risk that the jury might be confused by erroneous statements of law at the outset of the trial or by instructions which are not ultimately related to any of the evidence introduced in the case. Of course, an error contained in a jury charge need not be fatal; the propriety of the charge is a question to be decided based on the charge as a whole, and it is open to the trial judge to attempt to correct any errors that he or she may previously have made. Indeed, juries are frequently recharged as a result of counsel’s submissions at the conclusion of the judge’s instructions, and potentially fatal errors are often avoided in this way. However, when the jury charge is delivered piecemeal over the course of the trial, such corrections become markedly more difficult. In particular, if the trial judge errs on a point of substantive law at the start of the trial, and the jury members subsequently hear the evidence with that error in their minds, the damage to the fairness of the trial might well be irreparable.

30 In this case, the trial judge did commit an error in his preliminary instructions regarding the substantive law of murder. In addition, the second segment of his charge was overinclusive, since it addressed the use of prior inconsistent statements of an accused, even though it was not yet known whether Ménard would testify, let alone whether he would be confronted with prior statements. The trial judge made efforts to correct those problems in his closing address. With regard to his charge on prior inconsistent statements by an accused, he directed the jury to disregard his earlier comments. With respect to his discussion of murder, he instructed the jury as follows:

The law as to this offence: I have already charged you on the elements of this offence. I have nothing to add.

The evidence is such that clearly, Velasquez was the victim of a second degree murder. The issue before you is whether Ménard did it.

Ultimately, the Court of Appeal concluded that the trial judge’s errors did not merit a reversal of Ménard’s conviction, and I agree. It is worth emphasizing, however, that this result was largely fortuitous -- had the question of murder been a live issue in the trial, the judge’s misdirection regarding that offence at the outset of the proceedings might have vitiated the entire charge. To instruct a jury on substantive law at the outset of a trial is to walk on thin ice, and any trial judge who chooses to do so must exercise caution to ensure that his or her instructions are correct. I endorse the Court of Appeal’s comments at p. 433:

[T]here may be considerable benefit in instructing the jury, as the trial judge did in this case, about the trial process and some of the fundamental evidentiary principles right at the outset of the trial. However, before embarking on an exposé of the substantive law, the trial judge should wait to hear the evidence, unless counsel agree to a proposed set of instructions tailored to the facts of the case. Even there, the dangers always exist that the evidence will not match these early expectations and that an error may prove impossible to cure.

31 As a final note, the trial judge’s closing address to the jury was troubling in that it did not bring together the earlier portions of his instructions, and in particular it did not re-emphasize the fundamental principles of reasonable doubt, the presumption of innocence and the burden of proof. Those principles are too important to be referred to in passing at the conclusion of the trial. Even if it is assumed that the jury followed the trial judge’s instructions and reread their written transcripts concerning those matters, it would have been better, in the unusual circumstances of this case, for the trial judge to repeat that portion of his instructions and thereby ensure that he was sending the jury into deliberations with those principles fresh in their minds. In spite of these criticisms, the charge taken in its entirety in the circumstances of this case did not result in any miscarriage of justice.

C. Remaining Grounds of Appeal

32 The remaining grounds for appeal in this case concern the admissibility of the out-of-court statements of William Graves, the admissibility of evidence relating to the appellant’s military background, the propriety of the Crown’s cross-examination of the appellant regarding his criminal record, and the sufficiency of the trial judge’s jury charge on identification evidence. We have considered the appellant’s arguments and we agree with the Court of Appeal’s disposition of those issues.

V. Conclusions and Disposition

33 For the reasons set forth in this Court’s decision in White, the trial judge in this case was not required to instruct the jury to apply the reasonable doubt standard to evidence of the appellant’s post-offence conduct. Nor did the trial judge’s jury charge -- in its format or its substance -- give rise to reversible error in this case. The appellant was convicted in conformity with the law and the Court of Appeal did not err in so finding. The appeal is dismissed.

Appeal dismissed.

Solicitors for the appellant: Ruby & Edwardh, Toronto.

Solicitor for the respondent: Crown Law Office, Toronto.