Judges who have to prepare directions to juries in criminal trials could be assisted by studying R v Abdullahi, 2023 SCC 19 (14 July 2023). The perspective is that of an appellate court, but the majority judgment of Rowe J with concurrence by Wagner CJ, Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ provides guidance for trial judges.
The essentials are summarised at [72], with the concept of a functional approach explained at [4], the underlying principles reiterated at [35], the requirement that the jury be properly equipped to decide the case explained at [37] (the jury must be both accurately and sufficiently instructed), the difference between mandatory and contingent instructions (at [48], [49]), and the importance of the context of the trial emphasised at [57].
This appeal also addresses the essential requirements for proof of the existence of a criminal organisation, with case law explaining that such an organisation (in contrast to, for example, a mere conspiracy [80]) to be “organised” must have both structure and continuity (see [76] ff). While the various circumstances of each case require flexible assessment, it is an error (as it was in this case) to take a flexible approach to the requirements of structure and continuity [81]. Improper reasoning can flow from this error ([84] ff). Here, the trial judge had failed to expand upon the statutory definition of criminal organisation by addressing the requirements of structure and continuity [89] and so had failed to properly equip the jury to decide the case.
It was on the issue of whether the judge had properly equipped the jury to decide the issue of whether the facts established the existence of a criminal organisation that Côté J dissented ([99]-[100]. Points of criticism of the majority’s categorisation of errors in jury instructions (eg at [107]) are rather weakened by the reality that this is a sole dissent in a court of final appeal.
