Presumption of Innocence, Burden of Proof and Reasonable Doubt

Audio Tape Recordings and Transcripts-Criminal Code of Canada

Note[1]

(Last revised March 2011)

[1]              You are about to hear a tape recording of (describe briefly nature of recording(s)). Please listen to it very carefully.

[2]              Each of you has a transcript of the tape. The transcript is just an aid to help you follow the recording as it is played. The transcript is not evidence. Only the tape itself is evidence.

[3]              If what you read on the transcript differs from what you hear on the tape, you are to go by what you hear for yourself, and not what you read in the transcript. If the speakers you hear are different from those identified in the transcript, it is for you to decide who was speaking and what was said. You decide this from what you hear on the recording and any other evidence given about the identity of the speakers.

[4]              The tape will be available to you in the jury room, where you may listen to it if you need to. It is up to you to decide whether or how often you want to listen to it, or any part of it again. You may listen to it as many times as you wish to help you determine who is speaking and what s/he is saying.[2]
(Where transcripts are not filed as exhibits:)

[5]              Please follow carefully as the tape is played in the courtroom. The tape will be available to you in the jury room, but not the transcript. We will collect the transcripts after the tape has been played.
(Where transcripts are filed as exhibits:)

[6]              You may take the transcript with you to the jury room to help you determine what is actually on the tapes. But remember, if you find any differences between the tape and the transcript you must rely on what you hear on the tapes, rather than on what is in the transcripts.
(Where a single accused is a speaker and the common purpose exception to the hearsay rule does not apply, add:)

[7]              In listening to this tape, be careful to distinguish between what (NOA) says and what others on the tape are saying. What the others say might help you figure out what (NOA) says and what his/her words mean. But (NOA) can be held responsible only for what s/he actually says, not for what others say. It is only what (NOA) said that is evidence concerning (NOA).
In other words, what others say may provide a context for understanding what (NOA) says; but only (NOA)’s words, as understood in this context, are evidence of what (NOA) has done or intended to do.

(Where more than one accused are speakers and the common purpose exception to the hearsay rule does not apply, add:)

[8]              In listening to this tape, be careful to distinguish between what each person on trial says and what others on the tape are saying. Anything on the tape may be helpful in determining what a particular person says and what his/her words mean. But each person charged can be held responsible only for what s/he actually says, not for what others say. Only that person’s words, as understood in context

[1] Audio tape recordings may include statements made by an accused to a person in authority, dying declarations, statements which are part of the res gestae, previous statements admitted for substantive purposes under R. v. B. (K.G.), [1993] 1 S.C.R. 740 and declarations made in furtherance of a common unlawful purpose. The identity of the speaker may vary.
[2] Where a trial judge decides that further instructions should be given mid-trial concerning the purpose for which the evidence may be used, the relevant final instructions may be adapted.

1] Audio tape recordings may include statements made by an accused to a person in authority, dying declarations, statements which are part of the res gestae, previous statements admitted for substantive purposes under R. v. B. (K.G.), [1993] 1 S.C.R. 740 and declarations made in furtherance of a common unlawful purpose. The identity of the speaker may vary.

[2] Where a trial judge decides that further instructions should be given mid-trial concerning the purpose for which the evidence may be used, the relevant final instructions may be adapted.

Assessment of Evidence – Criminal Code of Canada

Note[1]

(Last revised June 2018)

[1] To make your decision, you should consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to you to decide how much or little of the testimony of any witness you will believe or rely on. You may believe some, none or all of the evidence given by a witness.

[2] When you go to the jury room to consider the case, use your collective common sense to decide whether the witnesses know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’s testimony or how much to rely on it in deciding this case. But here are a few questions you might keep in mind during your discussions.

[3] Did the witness seem honest? Is there any reason why the witness would not be telling the truth?

[4] Does the witness have any reason to give evidence that is more favourable to one side than to the other?[1]

[5] Was the witness in a position to make accurate and complete observations about the event? Did s/he have a good opportunity to do so? What were the circumstances in which the observation was made? What was the condition of the witness? Was the event itself unusual or routine?

[6] Did the witness seem to have a good memory? Does the witness have any reason to remember the things about which s/he testified? Did any inability or difficulty that the witness had in remembering events seem genuine, or did it seem made up as an excuse to avoid answering questions?

[7] Did the witness seem to be reporting to you what he or she saw or heard, or simply putting together an account based on information obtained from other sources, rather than personal observation?[2]

[8] Did the witness’s testimony seem reasonable and consistent? Is it similar to or different from what other witnesses said about the same events? Did the witness say or do something different on an earlier occasion?

[9] Do any inconsistencies in the witness’s evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different, or because s/he failed to mention something? Is there any explanation for it? Does the explanation make sense?

[10] What was the witness’s manner when he or she testified? Do not jump to conclusions, however, based entirely on how a witness has testified. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different abilities, values and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or most important factor in your decision.[3]

[11] These are only some of the factors that you might keep in mind when you go to your jury room to make your decision. These factors might help you decide how much or little of a witness’s evidence you will believe or rely on. You may consider other factors as well.

[12] In making your decision, do not consider only the testimony of the witnesses. Take into account, as well, any exhibits that have been filed and decide how much or little you will rely on them to help you decide this case. I will be telling (or, have already told) you about how you use admissions in making your decision.

[1] It must not be suggested to the jury that they can assume that the accused, by virtue of his or her status as the accused, would lie to escape conviction, as this undermines the presumption of innocence: R. v. Laboucan, [2010] 1 S.C.R. 397, at paras 14-18.

[2] Paragraph [7] is directed at witnesses who may have put their testimony together, or embellished their account from outside sources, such as media accounts or other sources. It may require modification where the source is records whose accuracy, and the propriety of consulting them, is not in issue.

[3] Where a witness is testifying through an interpreter, this instruction may be expanded to point out the particular difficulties in assessing such a witness’s testimony.

Motive

Criminal Code of Canada

Note[1]

(Last revised June 2012)

[1] You have heard counsel speak about motive. We often use the words “motive” and “intent” interchangeably, but in law they do not mean the same thing. In a legal context, when we say that a person did something intentionally, we are conveying that he or she meant to do what he or she did, and that it was not done accidentally. When we speak of motive, however, we are referring to the reason a person did what he or she did.[2]

[2] A person may do something intentionally whether or not the person had a motive for doing it. For example, a man goes into a department store, tries on a watch, gets distracted and walks out without paying. If he forgot to pay, he did not have the intent to steal. Next, suppose the man knew that the watch was on his wrist, but still walked out without paying. In that case, he did have the intent to steal the watch. If he was rich, had plenty of money in his wallet, and still took the watch, one might conclude he had no motive, or at least that his motive is unknown. However, if the man stole the watch in order to sell it, he had the intent to steal and his motive was financial gain.

[3] Later, I will explain the essential elements that the Crown must prove for the offence(s) with which (NOA) is charged. Motive is not one of those elements. In deciding whether people are guilty of an offence, what matters is what they did and whether they did it intentionally, and not their reasons for doing it.

[4] You need not find a motive for (NOA)’s actions in order to find him or her guilty of an offence.

[5] But motive can be relevant. If a person had a reason for doing a certain thing, then you might conclude that it is more likely that he or she in fact did that thing and did so intentionally. Conversely, if you find that a person had no reason to do a certain thing, that might cause you to doubt whether he or she did that thing or did it intentionally.[3]

[6] In this case (describe the position of the parties as to motive, or absence of motive). It is for you to decide what weight, if any, you will give to the evidence of motive, or lack of motive, in this case.

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[1] This instruction need only be given where some evidence of motive has been led.

[2] The significance of motive and its relationship to intent was examined in R. v. Lewis, [1979] 2 S.C.R. 821.

[3] There is a significant difference between absence of proven motive, on the one hand, and proven absence of motive, on the other. There is no acceptable definition of “proven absence of motive”. See R. v. White (1996), 108 C.C.C. (3d) 1, 33-4 (Ont. C.A.) aff’d., [1998] 2 S.C.R. 72, 125 C.C.C. (3d) 385, 415.