Recommendation 81 of the Commission on Proceedings Involving Guy Paul Morin is arguably the most direct and cost-effective antidote to curing the malaise of wrongful convictions in our system of justice. It reads as follows:
"The Government of Canada, upon recommendation of
the Canada Law Reform Commission, should consider
whether the common law should be altered, through
legislative amendment, to limit the ability of a
trial judge to express his or her opinions on
issues of credibility to the jury and further alter
the obligation imposed upon a trial judge to outline
the most significant parts of the evidence for the
jury."
While the common law practice of allowing judges to comment and give their opinion on evidence to the jury may have worked well in the social, economic and educational realities of pre-industrialized English society, it is inconsistent with the basic tenets of our adverserial system and the rule of law. In a criminal jury trial there are four parties, namely, judge, jury, prosecutor and defence counsel. The judge is the judge of the law. His or her role is to see to it that the trial is conducted in accordance with law. The jury is the judge of the facts. Allowing the trial judge to comment on the evidence and provide his or her opinion on it to the jury usurpts the fact-findng function of the jury. The fact that the trial judge informs the jury that they are not bound by his or her opinion does not detract from the potential for harm. The rationale for this is simple. It is impossible to know with certainty what - if any impact - the comments or opinion may have on the jury. The mere possibility that it could influence the jury should be sufficient to justify its abolition. It is for counsel for the prosecution and the defendant to put their version of the facts to the jury for its consideration.
In this session I will attempt to illustrate how the practice of the trial judge providing commentary or opinion on the facts of the case during the charge in the Wilton Smith prosecution may have influenced the jury's finding.
Trial Judge's (Ewaschuk J.)Comments in
R v. Wilton Smith:
"I am turning now to my comments as to the charge.
Let me point out the obvious. The accused has
denied he killed Patricia Innis and no one has
testified that he or she saw the accused do it. Thus,
the real issue is whether the accused or Iona Davis
killled Patricia Innis. This issue is for you to
resolve, if possible, and is not for me to resovle.
I assume for the following commentary that the Crown
has proven beyond a reasonable doubt that the accused
killed Patricia Innis."
"The person who killed Patricia Innis severed her
cervical or neck spine with one blow from a sharp,
heavy instrument. It is a reasonable and logical
inference that that person intended to cause Miss
Innis' death or, in the least, meant to cause her
bodily harm that he knew was likely to cause her
death and was reckless whether death ensued or not.
It is not a mandatory inference, but is the most
likely inference in this case. Simply bring to
bear your assessment of the accused and all of the
evidence of the case in determining whether the
accused's state of mind was such that he had
the requisite intent to murder Miss Innis at the
time when he struck her with the sharp, heavy
instrument by inflicting the one deadly blow to
her neck. I assume then that the accused had the
requisite intent for murder and turn next to the
issue of whether the murder was planned and deliberate."
"Certainly if the accused was the person who sharpened
the machete, if he phoned Delroy Benjamin with the
false promise of a job in order to lure him out of the
apartment and if the accused brought a fake present for
Miss Innis in order t gain entry into the apartment, all
of these factors may be taken into account in determining
whether he had formulated a plan to murder Miss Innis.
As for the question of deliberation, the issue is more
problematic since there is no evidence of what occurred
between the accused adn Miss Innis when he killed her.
It appears that Miss Innis did not cry out so that it is
likely that she was not expecting the blow. If so, they
were also likely not face-to-face quarelling otherwise
she would have expected the blow. She would have seen it
coming. It would, nonetheless, be open to you to infer
beyond a reasonable doubt that the accused had a plan to
kill Miss Innis and that the plan took him to her
apartment where, in accordance with the plan, he
deliberately murdered her. That inference is permissive.
It is not mandatory and the Crown must prove those
essential matters beyond a reasonable doubt. The
accused need not prove anything."
"Finally, I turn to the issue of manslaughter. I assume
that the accused killed Miss Innis but had formed
neither intent requisite for murder. On this scenario,
I agree with the concession of defence counsel that the
accused, if he killed Miss Innis, which they expressly
deny, is in the least, guilty of manslaughter."
"At this point, I am going to interject to say this -
that a review of Susan Kern's evidence indicates that
she found blood on both legs, outer legs of the accused's
jeans. If you want that evidence read back to you,
simply ask for it later through the form of a note. The
court reporter will gladly read it for you and would
gladly read any other evidence that you wish to have read
back to you."
"Obviously, the identification was made at least ten to
eleven months after Mr. Pryce had seen the man with the
machete at the machine shop."
Analysis and Commentary:
The following comments from the trial judge's comments to the jury had the potential to influence the jury in finding Wilton Smith guilty:
1. "I assume for the purpose of the following commentary
that the Crown has proven beyond a reasonable doubt
that the accused killed Patricia Innis."
2. "Simply bring to bear your assessment of the accused
and all of the evidence of the case in determining
whether the accused's state of mind was such that he
had the requisite intent to murder Miss Innis at the
time when he struck her with the sharp, heavy instrument
by inflicting the one deadly blow to her neck."
3. "I assume then that the accused had the requisite intent
for murder and turn to the issue of whether the murder
was planned and deliberate."
4. "It would, nonetheless, be open to you to infer
beyond a reasonable doubt that the accused had a
plan kill Miss Innis and that the plan took him to her
apartment where, in accordance with the plan, he
deliberately murdered her."
5. "Finally, I turn to the issue of manslaughter. I assume
that the accused killed Miss Innis but had formed neither
intent requisite for murdr. On this scenario, I agree
with the concession of defence counsel that the
accused, if he killed Miss Innis, which they expressly
deny, is, in the least, guilty of manslaughter."
6. "Obviously, the indentification was made at least ten
to eleven months after Mr. Pryce had seen the man with
the machete at the machine shop."
7. "At this point, I am going to interject to say this - that a review of Susan Kern's evidence indicates
that she found blood on both legs, outer legs of
the accused's jeans. If you want that evidence
read back to you, simply ask for it later through
the form of a note. The court reporter will
gladly read it for you and would gladly read any
other evidence that you wish to have read back to
you."
I have thought long and hard to find some valid purpose in support of the seven
above-noted comments by the trial judge on the evidence and with the greatest of respect I am unable to find one. Why the assumption of guilt in statements 1-3 ?
What exactly is the message the trial judge is conveying to the jury in statement
4 ? These comments appear to be pointing out an outcome to the jury which points to guilt. This conclusion is bolstered by the fact that portion of the trial transcripts which is headed comments does not invite a conclusion of acquittal anywhere. Points 6 and 7 are consistent with this. In point 6 the evidence as to when Mr. Pryce made his observations was a fact capable of raising reasonalbe doubt since Mr. Pryce's own evidence appears to have been that the observation was made when Wilton Smith was already in police custody. Point 6 effectively deprives Wilton Smith of that doubt.
NOTE: This piece is written for the sole purpose of shedding light on an issue of publice importance and encouraging public discourse on such issues. I invite those who are more qualified than I to share their views and knowledge on the questions raised above.
October 11th, 2010
"The Government of Canada, upon recommendation of
the Canada Law Reform Commission, should consider
whether the common law should be altered, through
legislative amendment, to limit the ability of a
trial judge to express his or her opinions on
issues of credibility to the jury and further alter
the obligation imposed upon a trial judge to outline
the most significant parts of the evidence for the
jury."
While the common law practice of allowing judges to comment and give their opinion on evidence to the jury may have worked well in the social, economic and educational realities of pre-industrialized English society, it is inconsistent with the basic tenets of our adverserial system and the rule of law. In a criminal jury trial there are four parties, namely, judge, jury, prosecutor and defence counsel. The judge is the judge of the law. His or her role is to see to it that the trial is conducted in accordance with law. The jury is the judge of the facts. Allowing the trial judge to comment on the evidence and provide his or her opinion on it to the jury usurpts the fact-findng function of the jury. The fact that the trial judge informs the jury that they are not bound by his or her opinion does not detract from the potential for harm. The rationale for this is simple. It is impossible to know with certainty what - if any impact - the comments or opinion may have on the jury. The mere possibility that it could influence the jury should be sufficient to justify its abolition. It is for counsel for the prosecution and the defendant to put their version of the facts to the jury for its consideration.
In this session I will attempt to illustrate how the practice of the trial judge providing commentary or opinion on the facts of the case during the charge in the Wilton Smith prosecution may have influenced the jury's finding.
Trial Judge's (Ewaschuk J.)Comments in
R v. Wilton Smith:
"I am turning now to my comments as to the charge.
Let me point out the obvious. The accused has
denied he killed Patricia Innis and no one has
testified that he or she saw the accused do it. Thus,
the real issue is whether the accused or Iona Davis
killled Patricia Innis. This issue is for you to
resolve, if possible, and is not for me to resovle.
I assume for the following commentary that the Crown
has proven beyond a reasonable doubt that the accused
killed Patricia Innis."
"The person who killed Patricia Innis severed her
cervical or neck spine with one blow from a sharp,
heavy instrument. It is a reasonable and logical
inference that that person intended to cause Miss
Innis' death or, in the least, meant to cause her
bodily harm that he knew was likely to cause her
death and was reckless whether death ensued or not.
It is not a mandatory inference, but is the most
likely inference in this case. Simply bring to
bear your assessment of the accused and all of the
evidence of the case in determining whether the
accused's state of mind was such that he had
the requisite intent to murder Miss Innis at the
time when he struck her with the sharp, heavy
instrument by inflicting the one deadly blow to
her neck. I assume then that the accused had the
requisite intent for murder and turn next to the
issue of whether the murder was planned and deliberate."
"Certainly if the accused was the person who sharpened
the machete, if he phoned Delroy Benjamin with the
false promise of a job in order to lure him out of the
apartment and if the accused brought a fake present for
Miss Innis in order t gain entry into the apartment, all
of these factors may be taken into account in determining
whether he had formulated a plan to murder Miss Innis.
As for the question of deliberation, the issue is more
problematic since there is no evidence of what occurred
between the accused adn Miss Innis when he killed her.
It appears that Miss Innis did not cry out so that it is
likely that she was not expecting the blow. If so, they
were also likely not face-to-face quarelling otherwise
she would have expected the blow. She would have seen it
coming. It would, nonetheless, be open to you to infer
beyond a reasonable doubt that the accused had a plan to
kill Miss Innis and that the plan took him to her
apartment where, in accordance with the plan, he
deliberately murdered her. That inference is permissive.
It is not mandatory and the Crown must prove those
essential matters beyond a reasonable doubt. The
accused need not prove anything."
"Finally, I turn to the issue of manslaughter. I assume
that the accused killed Miss Innis but had formed
neither intent requisite for murder. On this scenario,
I agree with the concession of defence counsel that the
accused, if he killed Miss Innis, which they expressly
deny, is in the least, guilty of manslaughter."
"At this point, I am going to interject to say this -
that a review of Susan Kern's evidence indicates that
she found blood on both legs, outer legs of the accused's
jeans. If you want that evidence read back to you,
simply ask for it later through the form of a note. The
court reporter will gladly read it for you and would
gladly read any other evidence that you wish to have read
back to you."
"Obviously, the identification was made at least ten to
eleven months after Mr. Pryce had seen the man with the
machete at the machine shop."
Analysis and Commentary:
The following comments from the trial judge's comments to the jury had the potential to influence the jury in finding Wilton Smith guilty:
1. "I assume for the purpose of the following commentary
that the Crown has proven beyond a reasonable doubt
that the accused killed Patricia Innis."
2. "Simply bring to bear your assessment of the accused
and all of the evidence of the case in determining
whether the accused's state of mind was such that he
had the requisite intent to murder Miss Innis at the
time when he struck her with the sharp, heavy instrument
by inflicting the one deadly blow to her neck."
3. "I assume then that the accused had the requisite intent
for murder and turn to the issue of whether the murder
was planned and deliberate."
4. "It would, nonetheless, be open to you to infer
beyond a reasonable doubt that the accused had a
plan kill Miss Innis and that the plan took him to her
apartment where, in accordance with the plan, he
deliberately murdered her."
5. "Finally, I turn to the issue of manslaughter. I assume
that the accused killed Miss Innis but had formed neither
intent requisite for murdr. On this scenario, I agree
with the concession of defence counsel that the
accused, if he killed Miss Innis, which they expressly
deny, is, in the least, guilty of manslaughter."
6. "Obviously, the indentification was made at least ten
to eleven months after Mr. Pryce had seen the man with
the machete at the machine shop."
7. "At this point, I am going to interject to say this - that a review of Susan Kern's evidence indicates
that she found blood on both legs, outer legs of
the accused's jeans. If you want that evidence
read back to you, simply ask for it later through
the form of a note. The court reporter will
gladly read it for you and would gladly read any
other evidence that you wish to have read back to
you."
I have thought long and hard to find some valid purpose in support of the seven
above-noted comments by the trial judge on the evidence and with the greatest of respect I am unable to find one. Why the assumption of guilt in statements 1-3 ?
What exactly is the message the trial judge is conveying to the jury in statement
4 ? These comments appear to be pointing out an outcome to the jury which points to guilt. This conclusion is bolstered by the fact that portion of the trial transcripts which is headed comments does not invite a conclusion of acquittal anywhere. Points 6 and 7 are consistent with this. In point 6 the evidence as to when Mr. Pryce made his observations was a fact capable of raising reasonalbe doubt since Mr. Pryce's own evidence appears to have been that the observation was made when Wilton Smith was already in police custody. Point 6 effectively deprives Wilton Smith of that doubt.
NOTE: This piece is written for the sole purpose of shedding light on an issue of publice importance and encouraging public discourse on such issues. I invite those who are more qualified than I to share their views and knowledge on the questions raised above.
October 11th, 2010
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