Charge and Questions to the Jury
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 817-844 |
C
H A P T E R
T
W E N T
Y
-
N
I N E
I
Charge
and
Questions
to the
Jury
As
in
other actions,
the
trial judge gives
the
charge
to the
jury
in a
defama-
tion
action
after
the
speeches
by
counsel.
The
elements
of the
jury charge generally have been thoroughly
dis-
cussed
and
analyzed
in
John
Sopinka, Donald
B.
Houston,
&
Melanie
Sopinka,
The
Trial
of
an
Action,
2d ed.
(Toronto: Butterworths,
1998),
E VI,
c. 6 and in The Law
Society
of
Upper
Canada
Special
Lectures
1959:
Jury
Trials
(Toronto: Richard
De
Boo,
1959)
in the
chapter
entitled:
"The Charge
to the
Jury"
by the
Honourable
Mr.
Justice Schroeder.
Useful
examples
of
jury charges
in
defamation actions
may be
found
in
the
following cases:
Willows
v.
Williams
(1950),
2
WWR.
(N.S.)
657
(Alta.
S.C.
(T.D.)).
Ross
v.
Lamport, [1957] O.R.
402
(C.A.).
Paktta
v.
Lethbridge
Herald
Company Limited (No.
2)
(1976),
4
Alta.
L.R.
(2d)
97
(S.C.
(T.D.)).
The
following sample charge
may be of
some
assistance
to
judges
and
lawyers.
A.
CHARGE
TO THE
JURY
1)
Introduction
Members
of the
jury,
it now
becomes
my
duty
to
instruct
you on the law in
this case,
and to
show
you how
that
law
should
be
applied
to the
facts
as
you
find
them.
You
and I
have quite
different
functions
in
this case.
It is my
duty
to
instruct
you in the law
that applies
to the
case
and you
must follow that
law
817
818
as I
state
it to
you.
You
must discard
any
notions
or
opinions
of
your
own
about
the
law,
or the
views
which
counsel
may
have
expressed
about
the
law
insofar
as
those views contradict what
I say to you
concerning
the law
applicable
to
this case.
But
while
I am the
judge
so far as the law is
con-
cerned,
you
have
the
sole
and
exclusive authority
to
determine
the
facts.
As
jurors
it is
your exclusive duty
to
decide
all
questions
of
facts
submitted
to
you,
and for
that purpose
to
determine
the
effect
and
value
of the
evidence
that
you
have heard.
Under
our
system
of law I
have
the
right
to
comment
upon
the
evidence
of
the
witnesses, their truthfulness,
or the
inferences
to be
drawn
from
the
evidence.
If I do
that,
I
emphasize that
you are in no way
bound
to
follow
my
opinion
so far as the
facts
are
concerned.
It is
your duty
to
place your
own
interpretation
on the
evidence
and if
your views
are at
variance with
mine,
or if you
disagree with
my
comments,
it is
your duty
to
disregard
my
views
or
opinions
on the
facts
and to
give
effect
to
your own.
I
repeat,
while
I
may
comment
to
some extent
on the
evidence,
it is for you to
decide
whether
my
comments
are
consistent with your
own
views because
you are
the
sole judge
of the
facts,
not I.
When
you
retire
to
your jury room
I
would suggest that
you
first
select
a
forelady
or
foreman
to
preside over your discussions.
Ultimately,
your
fore-
lady
or
foreman
will announce
to the
court
the
verdict
you
have arrived
at.
The
attitude
and
conduct
of the
jurors
at the
outset
of
their deliberations
are of the
greatest importance.
I
suggest that
you
avoid expressing
too
def-
inite
an
opinion
in the
early stages
of
your deliberation.
If you
listen calm-
ly
to the
arguments
of
your
fellow
jurors
and put
forward
your
own
views
in a
calm
and
reasonable way,
you
will arrive
at a
just
and
proper verdict.
Deal
with
this
case
in the
same manner,
as you
would expect
an
honest
and
impartial judge
to
decide
it. Set
aside
all
feelings
of
sympathy, preju-
dice,
or
passion.
During
the
course
of
this charge
I
will
from
time
to
time
be
mentioning
the
onus
of
proof; that
is, I
will
say
that
the
onus
of
proof
is on the
plaintiff
in
respect
of
certain matters,
or the
onus
of
proof
is on the
defendant
in
respect
of
others. When
I
refer
to
onus
of
proof,
this means that
the
plain-
tiff
or the
defendant must prove that proposition
by a
preponderance
of
evi-
dence.
The
term "preponderance
of
evidence" means such evidence
as,
when considered
and
compared with that opposed
to it, has
more convinc-
ing
force
and a
greater probability
of
proof.
In the
event that
the
evidence
is
evenly balanced
so
that
you are
unable
to say
that
the
evidence
on
either side
of an
issue preponderates, then your
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