Presiding over a jury trial probably is the most demanding task asked of a judge. Jury trials are imbued with a dynamic volatility that spins off numerous trial management challenges. Jury questions are one such challenge.
Presented with a jury question, a trial judge, with the assistance of counsel, must decipher the question, craft a full and proper response, assess the impact of the response on overall trial fairness, and do all of this under the pressure of a relentless time clock.
Introducing an Alternative Theory of Criminal Liability within the Answer to a Jury Question
Where an alternative theory of criminal liability, which had not been a live issue at trial, is introduced by the trial judge in his answer to a question from the jury, the trial judge is obliged, at a minimum, to canvass and implement reasonable steps to mitigate any trial prejudice caused to the accused by the injection of a new basis of liability so late in the proceedings. The failure to do so will prejudice the accused’s ability to make full answer and defence to the charge and materially compromised trial fairness.
R. v. Grandine, 2017 ONCA 718.