The Significance of Trial Counsel’s Failure to Object to Errors/Deficiencies in the Jury Charge

In all but the rarest of cases, a trial judge has a duty to review with the jurors the issues to be resolved and the evidence they may consider in resolving those issues.  This process is known as the jury charge or jury instruction. “The task of the trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language.” R. v. Jack (1993), 88 Man. R. (2d) 93 (C.A.), at p. 102; aff’d 1994 CanLII 87 (SCC) A formidable task, certainly, and, as one might expect, a task where errors may occur.  But the errors of the trial judge are not the only point of focus on an appeal.  Sometimes trial counsel’s failure to object to errors or deficiencies within a proposed jury charge has implications on appeal. Where there is a Significant Divergence between the Accused’s Position on an Issue at Trial and his/her position on Appeal Arguments by appellate counsel that fly in the face of positions taken by counsel at trial quite properly attract judicial skepticism and resistance.  The significance of counsel’s position at trial to the merits of the argument on appeal will depend on the nature of the argument advanced on appeal.  Where it is alleged that an instruction to the jury was unclear, inadequate on a legal or evidentiary issue raised in the trial, or did not treat the position of the appellant at trial fairly or fully, counsel’s approval of the jury instruction and to a lesser extent his or her failure to object, will be a significant consideration on appeal. Trial Counsel’s Failure to Request a Discretionary Instruction Similarly, where an appellant argues that the trial